James E. McCarthy
Specialist in Environmental Policy
Air quality has improved substantially in the United States in the 40 years of EPA’s Clean Air Act regulation, but more needs to be done, according to the agency’s science advisers, to protect public health and the environment from the effects of air pollution. Thus, the agency continues to promulgate regulations addressing air pollution using authority given it by Congress more than 20 years ago. In recent months, Members of Congress from both parties have raised questions about the cost-effectiveness of some of these regulations and/or whether the agency has exceeded its regulatory authority in promulgating them. Others in Congress have supported EPA, noting that the Clean Air Act, often affirmed in court decisions, has authorized or required the agency’s actions. This report focuses on three of the most controversial areas of interest to the 112th Congress: greenhouse gas (GHG) regulations, emissions from power plants, and ambient air quality standards.
EPA regulatory actions on GHG emissions have been a major focus of congressional interest. Although the Obama Administration has consistently said that it would prefer that Congress pass new legislation to address climate change, EPA has developed GHG regulations using its existing Clean Air Act authority over the last two years. On December 15, 2009, the agency finalized an “endangerment finding” under Section 202 of the act, which requires it to regulate pollutants for their effect as greenhouse gases for the first time. Relying on this finding, EPA finalized GHG emission standards for cars and light trucks on April 1, 2010. The implementation of these standards, in turn, triggered permitting and Best Available Control Technology requirements for new major stationary sources of GHGs as of January 2, 2011.
It is the triggering of standards for stationary sources (power plants, manufacturing facilities, etc.) that has raised the most concern in Congress: legislation has been considered in both the House and Senate aimed at preventing EPA from implementing these requirements. Since February, the House has passed H.R. 1, which contained provisions prohibiting the use of appropriated funds to implement various EPA GHG regulatory activities, and H.R. 910, a bill that would repeal EPA’s endangerment finding, redefine “air pollutants” to exclude greenhouse gases, and prohibit EPA from promulgating any regulation to address climate change. In the Senate, H.R. 1 was defeated, but the chamber moved on to consider GHG amendments in debate over S. 493, a small business innovation bill. An amendment identical to H.R. 910 (S.Amdt. 183) failed on a vote of 50-50.
Besides addressing climate change, EPA has taken action on a number of air pollutant regulations, generally in response to the courts. Several of EPA’s regulatory decisions under the Bush Administration have been vacated or remanded to the agency: among them, the Clean Air Interstate Rule (CAIR) and Clean Air Mercury Rule—rules designed to control the long-range transport of sulfur dioxide, nitrogen oxides, and mercury from power plants through cap-andtrade programs – and hazardous air pollutant (“MACT”) standards for boilers. EPA is addressing these court decisions through new regulations—the agency proposed a replacement for CAIR July 6, 2010, and regulations for power plant emissions of mercury and other hazardous air pollutants March 16, 2011. A boiler MACT rule was finalized February 21 (although the agency immediately moved to reconsider it). Some in Congress have wanted to address these emissions issues through new legislation, while others are interested in using legislation to prevent EPA from implementing standards they view as too stringent. In addition to the power plant and boiler rules, EPA is also reviewing ambient air quality standards for six widespread air pollutants. These standards serve as EPA’s definition of clean air, and drive a range of regulatory controls. Congress has shown substantial interest in the standards for ozone and particulates, neither yet finalized.
Date of Report: April 20, 2011
Number of Pages: 24
Order Number: R41563
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James E. McCarthy
Specialist in Environmental Policy
Larry Parker
Specialist in Energy and Environmental Policy
As a direct result of the Environmental Protection Agency’s promulgation of an “endangerment finding” for greenhouse gas (GHG) emissions in December 2009, and its subsequent promulgation of GHG emission standards for new motor vehicles on April 1, 2010, the agency is now proceeding to control GHG emissions from new and modified stationary sources as well, including power plants, manufacturing facilities, and others. Stationary sources account for 69% of U.S. emissions of greenhouse gases. If the United States is to reduce its total GHG emissions, as President Obama has committed to do, it will be necessary to address these sources.
EPA’s regulations limiting GHG emissions from new cars and light trucks automatically triggered two other Clean Air Act (CAA) provisions affecting stationary sources of air pollution. First, effective January 2, 2011, new or modified major stationary sources must undergo New Source Review (NSR) with respect to their GHGs in addition to any other pollutants subject to regulation under the CAA that are emitted by the source. This review requires affected sources to install Best Available Control Technology (BACT) to address their GHG emissions. Second, major sources of GHGs (existing and new) will have to obtain permits under Title V of the CAA (or have existing permits modified to include their GHG requirements). Beyond these permitting requirements, because stationary sources, particularly coal-fired power plants, are the largest sources of greenhouse gas emissions, EPA is likely to find itself compelled to issue endangerment findings and establish emission control standards for GHG emissions under other parts of the act. For example, in December 2010, EPA reached settlement agreements with numerous parties under which it will promulgate final decisions on New Source Performance Standards (NSPS) for electric generating units by May 2012 and for petroleum refineries by November 2012.
EPA shares congressional concerns about the potential scope of these regulations, primarily because a literal reading of the act would have required as many as 6 million stationary sources to obtain permits. To avoid this result, on May 13, 2010, the agency finalized a “Tailoring Rule” that focuses its resources on the largest emitters while deciding over a six-year period what to do about smaller sources.
Many in Congress have suggested that EPA should delay taking action on any stationary sources or should be prevented from doing so. There are at least 10 bills introduced in the 112th Congress that would delay or prevent EPA actions on greenhouse gas emissions. In February, the text of one bill, H.R. 153, was added to the Full-Year Continuing Appropriations Act (H.R. 1) during floor debate on a 249-177 vote. H.R. 1 passed the House, February 19, but failed in the Senate, March 9. On April 7, the House passed Representative Upton’s H.R. 910, which would repeal EPA’s endangerment finding, redefine “air pollutants” to exclude greenhouse gases, and prohibit EPA from promulgating any regulation to address climate change. In the Senate, similar legislation failed to pass, April 6.
This report discusses elements of this controversy, providing background on stationary sources of greenhouse gas pollution and identifying options Congress has at its disposal to address the issues, including (1) resolutions of disapproval under the Congressional Review Act; (2) freestanding legislation; (3) the use of appropriations bills as a vehicle to restrain EPA activity; and (4) amendments to the Clean Air Act, including legislation to establish a new GHG control regime.
Date of Report: April 11, 2011
Number of Pages: 17
Order Number: R41212
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Robert Esworthy
Specialist in Environmental Policy
David M. Bearden
Specialist in Environmental Policy
Claudia Copeland
Specialist in Resources and Environmental Policy
Jane A. Leggett
Specialist in Energy and Environmental Policy
James E. McCarthy
Specialist in Environmental Policy
Mary Tiemann
Specialist in Environmental Policy
None of the 12 regular appropriations bills for FY2011, including the Interior, Environment, and Related Agencies bill that includes funding for the Environmental Protection Agency (EPA), were enacted before the start of the fiscal year on October 1, 2010. To date, a series of temporary continuing resolutions (CRs) have been enacted that have sequentially extended funding from October 1, 2010, through April 15, 2011 (most recently P.L. 112-8, enacted April 9, 2011). Two other bills enacted during the second session of the 111th Congress included provisions related to EPA appropriations. P.L. 111-212, enacted July 29, 2010, provided EPA FY2010 supplemental funding. P.L. 111-226, enacted August 10, 2010, rescinded EPA FY2009 supplemental funding provided in the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5).
During the 112th Congress, Title VII of Division B in H.R. 1, a full-year continuing resolution passed by the House on February 19, 2011, included specified funding levels for certain EPA accounts below the FY2011 requested and FY2010 enacted levels. House-passed H.R. 1 also contained more than 20 provisions that would have restricted and prohibited the use of appropriated funds to implement various regulatory activities under EPA’s jurisdiction. On March 9, 2011, the Senate did not pass the House version of H.R. 1 and did not agree to a subsequent Senate substitute amendment (S.Amdt. 149) containing different funding levels and generally omitting the EPA provisions included in the House-passed H.R. 1. Congress continues to deliberate on options for completing the FY2011 appropriations bills. The President’s FY2011 budget request, submitted to the 111th Congress on February 1, 2010, included $10.02 billion for the Environmental Protection Agency (EPA), which was below the $10.29 billion FY2010 enacted appropriations. Congress is currently deliberating on the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (H.R. 1473), introduced April 11, 2011.
Although the President proposed an overall decrease for FY2011 for EPA relative to the appropriations enacted for FY2010, the FY2011 budget request included a variety of decreases and increases in funding for many of the individual programs and activities funded within the eight appropriations accounts that fund the agency. Most of the overall FY2011 decrease that the President proposed for EPA relative to FY2010 appropriations is attributed to the requested $200 million reduction for water infrastructure grants within the State and Tribal Assistance Grants (STAG) account, the largest of the agency’s eight appropriations accounts. This requested decrease for FY2011 within the STAG account would reduce financial assistance to states to help capitalize Clean Water and Drinking Water State Revolving Funds (SRFs). The adequacy of federal assistance for this purpose has been a long-standing issue. The President’s FY2011 request included $2.00 billion for Clean Water SRF capitalization grants and $1.29 billion for Drinking Water SRF capitalization grants, less than the enacted FY2010 appropriations of $2.10 billion and $1.39 billion, respectively.
Other prominent issues that have received attention within the context of EPA appropriations include the level of funding for greenhouse gas emission regulations, climate change research and related activities, cleanup of hazardous waste sites under the Superfund program, cleanup of less hazardous sites referred to as brownfields, and grants to assist states in implementing certain air pollution control requirements. Funding for the Great Lakes Restoration Initiative established in the FY2010 appropriations, and funding for the protection and restoration of the Chesapeake Bay and other geographic-specific water programs, also have received attention.
Date of Report: April 11, 2011
Number of Pages: 38
Order Number: R41149
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Mary Tiemann
Specialist in Environmental Policy
Adam Vann
Legislative Attorney
Hydraulic fracturing is a technique developed initially to stimulate oil production from wells in declining oil reservoirs. More recently, it has been used to initiate oil and gas production in unconventional (i.e., low-permeability) reservoirs where these resources were previously inaccessible. This process now is used in more than 90% of new oil and gas production wells. Hydraulic fracturing is done after a well is drilled and involves injecting large volumes of water, sand (or other propping agent), and specialized chemicals under enough pressure to fracture the formations holding the oil or gas. The sand or other proppant holds the fractures open to allow the oil or gas to flow freely out of the formation and into a production well.
Its application, along with horizontal drilling, for production of natural gas (methane) from coal beds, tight gas sands, and, more recently, from unconventional shale formations, has resulted in the marked expansion of estimated U.S. natural gas reserves in recent years. Similarly, hydraulic fracturing is enabling the development of unconventional domestic oil resources, such as the Bakken Formation in North Dakota and Montana. However, the rapidly increasing and geographically expanding use of fracturing, along with a growing number of citizen complaints and state investigations of well water contamination attributed to this practice, has led to calls for greater state and/or federal environmental regulation and oversight of this activity.
Historically, the Environmental Protection Agency (EPA) had not regulated the underground injection of fluids for hydraulic fracturing of oil or gas production wells. In 1997, the U.S. Court of Appeals for the 11th Circuit ruled that fracturing for coalbed methane (CBM) production in Alabama constituted underground injection and must be regulated under the Safe Drinking Water Act (SDWA). This ruling led EPA to study the risk that hydraulic fracturing for CBM production might pose to drinking water sources. In 2004, EPA reported that the risk was small, except where diesel was used, and that regulation was not needed. However, to address regulatory uncertainty the ruling created, the Energy Policy Act of 2005 (EPAct 2005) revised the SDWA term “underground injection” to explicitly exclude the injection of fluids and propping agents (except diesel fuel) used for hydraulic fracturing purposes. Consequently, EPA currently lacks authority under the SDWA to regulate hydraulic fracturing, except where diesel fuel is used. However, as the use of this process has grown, some in Congress would like to revisit this statutory exclusion.
In the 112th Congress, H.R. 1084 and S. 587, the Fracturing Responsibility and Awareness of Chemicals Act (FRAC Act), have been introduced. The legislation would repeal the exemption for hydraulic fracturing operations that was established in EPAct 2005, and would amend the term “underground injection” to include explicitly the injection of fluids used in hydraulic fracturing operations related to oil and gas production, thus authorizing EPA to regulate this process under the SDWA. The bills also would require disclosure of the chemicals used in the fracturing process. EPA’s FY2010 appropriations act directed EPA to study the relationship between hydraulic fracturing and drinking water. The interim report, expected in 2012, may help inform Congress on whether federal action is needed. Meanwhile, various states are reviewing, and some have revised, their oil and gas rules to address the increased use of hydraulic fracturing.
This report reviews past and proposed treatment of hydraulic fracturing under the SDWA, the principal federal statute for regulating the underground injection of fluids to protect groundwater sources of drinking water. It reviews current SDWA provisions for regulating underground injection activities, and discusses some possible implications of, and issues associated with, enactment of legislation authorizing EPA to regulate hydraulic fracturing under this statute.
Date of Report: April 15, 2011
Number of Pages: 37
Order Number: R41760
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Claudia Copeland
Specialist in Resources and Environmental Policy
Much progress has been made in achieving the ambitious goals that Congress established more than 35 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants.
There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation’s remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.
For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue has been the role of the federal government in assisting states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, the House passed H.R. 1262 to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure and several related provisions of the act. A companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted.
Programs that regulate activities in wetlands also have been of interest, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that have narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate. In the 111th Congress, the Senate Environment and Public Works Committee approved a bill that sought to clarify but not expand the CWA’s geographic scope (the Clean Water Restoration Act, S. 787). A companion bill was introduced in the House (H.R. 5088). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted.
These issues are likely to be of interest in the 112th Congress, as well. In addition, a number of other CWA issues have drawn interest recently and been the subject of congressional oversight and legislation. Similar attention is expected during the 112th Congress, with some legislators seeking to support implementation efforts, and others expected to be critical of recent regulatory initiatives. Among the topics of possible interest are environmental and economic impacts of Chesapeake Bay restoration efforts, federal promulgation of water quality standards in Florida, regulation of surface coal mining activities in Appalachia, and other CWA regulatory actions.
Date of Report: April 4, 2011
Number of Pages: 23
Order Number: R41594
Price: $29.95
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