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Wednesday, September 28, 2011

EPA Regulations: Too Much, Too Little, or On Track?


James E. McCarthy
Specialist in Environmental Policy

Claudia Copeland
Specialist in Resources and Environmental Policy


In the two and one-half years since Barack Obama was sworn in as President, the Environmental Protection Agency (EPA) has proposed and promulgated numerous regulations implementing the pollution control statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress and outside of it, have accused the agency of reaching beyond the authority given it by Congress and ignoring or underestimating the costs and economic impacts of proposed and promulgated rules. The House has conducted vigorous oversight of the agency in the 112th Congress, and has approved several bills that would overturn specific regulations or limit the agency’s authority. Particular attention is being paid to the Clean Air Act, under which EPA has moved forward with the first federal controls on emissions of greenhouse gases and addressed conventional pollutants from a number of industries.

Environmental groups disagree that the agency has overreached, and EPA states that critics’ focus on the cost of controls obscures the benefits of new regulations, which, it estimates, far exceed the costs; and it maintains that pollution control is an important source of economic activity, exports, and American jobs. Further, the agency and its supporters say that EPA is carrying out the mandates detailed by Congress in the federal environmental statutes.

This report provides background information on recent EPA rulemaking to help address these issues. It examines 38 major or controversial regulatory actions taken by or under development at EPA since January 2009, providing details on the regulatory action itself, presenting an estimated timeline for completion of the rule (including identification of related court or statutory deadlines), and, in general, providing EPA’s estimates of costs and benefits, where available.

The report also discusses factors that affect the timeframe in which regulations take effect, including statutory and judicial deadlines, public comment periods, judicial review, and permitting procedures, the net results of which are that existing facilities are likely to have several years before being required to comply with most of the regulatory actions under discussion. Unable to account for such factors, which will vary from case to case, timelines that show dates for proposal and promulgation of EPA standards effectively underestimate the complexities of the regulatory process and overstate the near-term impact of many of the regulatory actions.



Date of Report: September 15, 2011
Number of Pages: 35
Order Number: R41561
Price: $29.95

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Monday, September 26, 2011

Common-Law Climate Change Litigation After American Electric Power v. Connecticut


Robert Meltz
Legislative Attorney

Congressional inaction on climate change has led concerned parties to explore other ways to address climate change—including lawsuits seeking to establish climate change impacts as a common law nuisance.

The prospects for these common law suits are limited, owing in part to the unsuitability of private litigation for dealing with global problems like climate change. Recently, the outlook for federal common-law suits seeking injunctive relief vis-a-vis climate change became particularly dim. On June 20, 2011, the Supreme Court ruled in American Electric Power Co., Inc. v. Connecticut that given EPA’s Clean Air Act authority over greenhouse gas (GHG) emissions—affirmed by the Court a few years ago—the federal common law of nuisance in the area of climate change is “displaced.” Federal courts may not use federal common law to add their own judge-made GHG emission standards to those of EPA.

The displacement of federal common law by American Electric Power is only one of three threshold issues that have bedeviled lawsuits seeking to establish climate change as a common law nuisance. The standing inquiry requires a plaintiff in federal court to show actual or imminent injury caused by the defendant, and the likelihood that the injury will be redressed by the requested relief. Each of these factors can pose difficulties for the climate-change plaintiff. Similarly, the political question doctrine has led some courts to dismiss common-law climate change suits on the ground that the issue is better left with the political branches. Of course, where American Electric Power applies and the case must be dismissed on displacement grounds, standing and political question doctrine are now less important. 

American Electric Power
raises several questions. First, with federal common law displaced in the area of climate change, are state common law claims viable? Two threats to such claims are the possibility of preemption by the Clean Air Act (the sounder argument is against preemption), and the influence of the Supreme’s Court’s aversion to judge-made law in the climate change area so evident in American Electric Power. A second question is whether American Electric Power displaces climate-change-based federal common law actions when the remedy sought is monetary rather than injunctive. Finally, if Congress eliminates EPA authority over GHG emissions and is silent as to federal common law actions, does federal common law cease to be displaced so that such actions are again possible?

In addition to American Electric Power, there are two other active cases raising common law nuisance claims as to climate change – both involving coastal damage. In Village of Kivalina v. ExxonMobil Corp., a coastal Eskimo village is suing energy companies alleging that their GHG emissions have contributed to shoreline erosion, requiring relocation of the village. In Comer v. Murphy Oil, Gulf coast landowners are suing energy and chemical companies asserting that their GHG emissions intensified Hurricane Katrina, adding to plaintiffs’ property damage. Both of these cases raise the above-noted issue whether American Electric Power applies to actions seeking monetary damages.

A second common law theory recently has entered the fray. Since May 2011, either a suit or rulemaking petition has been filed in every state arguing that the respective state has a “public trust” duty to the atmosphere that requires it to address climate change. A suit has also been filed against the United States on the same ground.



Date of Report:
August 16, 2011
Number of Pages:
14
Order Number: R
41496
Price: $29.95

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Monday, September 19, 2011

Federal Pollution Control Laws: How Are They Enforced?

Robert Esworthy
Specialist in Environmental Policy

As a result of enforcement actions and settlements for noncompliance with federal pollution control requirements, the U.S. Environmental Protection Agency (EPA) reported that, for FY2010, regulated entities committed to invest an estimated $12.1 billion for judicially mandated pollution controls and cleanup, and for implementing mutually agreed upon (supplemental) environmentally beneficial projects. EPA estimates that these efforts achieved commitments to reduce, treat, or eliminate 1.4 billion pounds of pollutants in the environment, primarily from air and water. EPA also assessed more than $110.0 million in civil and criminal fines and restitution during FY2010. Nevertheless, noncompliance with federal pollution control laws remains a continuing concern. The overall effectiveness of the enforcement organizational framework, the balance between state autonomy and federal oversight, and the adequacy of funding are longstanding congressional concerns.

This report provides an overview of the statutory framework, key players, infrastructure, resources, tools, and operations associated with enforcement and compliance of the major pollution control laws and regulations administered by EPA. It also outlines the roles of federal (including regional offices) and state regulators, as well as the regulated community. Understanding the many facets of how all federal pollution control laws are enforced, and the responsible parties involved, can be challenging. Enforcement of the considerable body of these laws involves a complex framework and organizational setting.

The array of enforcement/compliance tools employed to achieve and maintain compliance includes monitoring, investigation, administrative and judicial (civil and criminal) actions and penalties, and compliance assistance and incentive approaches. Most compliance violations are resolved administratively by the states and EPA. EPA concluded 1,830 final administrative penalty orders in FY2010. Civil judicial actions, which may be filed by states or EPA, are the next most frequent enforcement action. EPA may refer civil cases to the U.S. Department of Justice (DOJ), referring 233 civil cases in FY2010. The U.S. Attorney General’s Office and DOJ’s Environmental Crimes Section, or the State Attorneys General, in coordination with EPA criminal investigators and general counsel, may prosecute criminal violations against individuals or entities who knowingly disregard environmental laws or are criminally negligent.

Federal appropriations for environmental enforcement and compliance activities have remained relatively constant in recent fiscal years. Some contend that overall funding for enforcement activities has not kept pace with inflation or with the increasingly complex federal pollution control requirements. Congress appropriated $593.5 million for EPA’s enforcement activities for FY2011, a decrease below the $596.7 million enacted for FY2010, but an increase above the $568.9 million enacted for FY2009 and $553.5 million for FY2008. The President’ FY2012 budget request included $620.5 million for EPA enforcement activities. To date, Congress has not completed action on the FY2012 appropriations for EPA.



Date of Report: September
7, 2011
Number of Pages:
52
Order Number: R
L34384
Price: $29.95

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Wednesday, September 14, 2011

H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of Environmental Protection Agency (EPA) Provisions

Robert Esworthy
Specialist in Environmental Policy

P.L. 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (H.R. 1473), enacted April 15, 2011, provided $8.70 billion for EPA for FY2011 prior to a 0.2% acrossthe- board rescission. 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. Prior to the enactment of P.L. 112-10, a series of temporary continuing resolutions (CRs) were enacted that sequentially extended funding from October 1, 2010, through April 15, 2011 (P.L. 112-8). Passed by the House on February 19, 2011, Division B of H.R. 1 would have funded 11 of the 12 regular FY2011 appropriations bills in the form of a full-year continuing resolution (CR) (Division A separately would have provided FY2011 appropriations for the Department of Defense, the 12th bill).

Several recent and pending EPA regulatory actions were the focus of considerable attention during committee hearings and floor debate on EPA FY2011 appropriations, and were reflected in a number of provisions and amendments included in House-passed H.R. 1. These EPA actions cut across the various environmental pollution control statutes’ programs and initiatives, such as those that address greenhouse gas emissions, hazardous air pollutants (including mercury), mountaintop mining regulation, management of coal ash, particulate matter emissions, and water quality management including geographical ecosystems (notably Chesapeake Bay and the Great Lakes). Although Congress did not include the provisions in P.L. 112-10, these environmental regulatory issues remain a prominent topic of debate as Congress deliberates on the FY2012 appropriations and other proposed legislation regarding EPA’s authorities.

Title VII of Division B in H.R. 1, as passed by the House, included specified funding levels for certain EPA accounts. Title VII of Division B, as well as Division D of the House-passed bill, combined contained more than 20 provisions that would have restricted or prohibited the use of appropriated funds to implement various regulatory activities under the 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.

This report provides a summary of funding levels for EPA accounts and program activities specified in P.L. 112-10, H.R. 1 as passed by the House and as proposed in the Senate amendment, compared to the President’s FY2011 Budget Request and the FY2010 enacted levels in P.L. 111-88. The report also briefly highlights a number of the provisions regarding EPA program activities as presented in H.R. 1, as passed by the House. Only those provisions that are clearly identifiable by specific language or references contained in the bill are included. Nearly all of these EPA provisions were omitted from the Senate amendment (S.Amdt. 149) and P.L. 112-10 as enacted. The information presented throughout this report is primarily an extraction of the bill language for purposes of reference and is not intended to provide a comprehensive analysis of all provisions in H.R. 1 that may have directly or indirectly affected EPA programs.

Friday, September 9, 2011

Environmental Protection Agency (EPA) FY2012 Appropriations: Overview of Provisions in H.R. 2584


Robert Esworthy
Specialist in Environmental Policy

On July 19, 2011, the House Appropriations Committee reported H.R. 2584 (H.Rept. 112-151) with $27.52 billion in appropriations for FY2012 for Interior, Environment, and Related Agencies. Title II of H.R. 2584 as reported would provide a total of $7.15 billion for the Environmental Protection Agency (EPA), $1.82 billion (20%) less than the President’s FY2012 request of $8.97 billion, and $1.53 billion (18%) less than the FY2011 enacted appropriation of $8.68 billion. In addition to funding priorities among the various EPA programs and activities, H.R. 2584 as reported included more than 25 provisions that would restrict or preclude the use of FY2012 funds by EPA for implementing or proceeding with a number of recent and pending EPA regulatory actions. In addition, nearly 250 amendments, including several regarding EPA, were under consideration during floor debate which was suspended on July 28, 2011. As of the date of this report, the Senate Appropriations Committee had not reported a FY2012 appropriations bill for Interior, Environment, and Related Agencies.

Several EPA regulatory actions have been the focus of considerable attention during House and Senate oversight committee hearings more broadly, as well as, during appropriations committee hearings and House floor debate of the FY2012 appropriations. The provisions included in H.R. 2584 as reported, and many of the floor amendments considered and pending, cut across the various environmental pollution control statutes’ programs and initiatives, such as those that address greenhouse gas emissions, hazardous air pollutants, particulate matter emissions, permitting of new source air emissions, water quality impacts of mountaintop mining operations, management of coal ash, lead-based paint removal, environmental impacts associated with livestock operations, financial responsibility with respect to Superfund cleanup, and stormwater discharge. Further, Title V of the committee-reported bill, “Reducing Regulatory Burdens Act of 2011,” included amendments to the Clean Water Act and the Federal Insecticide, Rodenticide, and Fungicide Act in response to EPA’s consideration of requiring permits under the Clean Water Act for point source discharges of pesticides in or near U.S. waters. Several of these EPA activities have also been included in other proposed legislation.

To date, House floor debate on H.R. 2584 has not been completed. This report provides a summary of funding levels for EPA accounts and program activities specified in H.R. 2584 as reported by the House Appropriations Committee. This report also identifies selected provisions regarding EPA program activities as presented in the reported bill. Only those provisions that are clearly identifiable by specific language or references contained in the bill are included. Amendments that were voted on and pending during initial floor debate at the end of July 2011 are not included. The information presented throughout this report is primarily an extraction of the bill language for purposes of reference and is not intended to provide a comprehensive analysis of all provisions in H.R. 2584 as reported that may directly or indirectly affect EPA programs if enacted.



Date of Report: August 31, 2011
Number of Pages: 27
Order Number: R41979
Price: $29.95

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