EPA Regulation of Greenhouse Gases: Congressional Responses and Options

James E. McCarthy
Specialist in Environmental Policy

Larry Parker
Specialist in Energy and Environmental Policy

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, have raised concerns among some in Congress. As a direct result of these first steps, the agency is now proceeding to control GHG emissions from 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 have triggered at least 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 will require affected sources to install Best Available Control Technology (BACT) to address their GHG emissions. Second, all 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 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 might require as many as 6 million stationary sources to obtain permits. Thus, 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 these sources or should be prevented from doing so. Legislation was introduced in the 111th Congress in both the House and Senate to achieve such results: four resolutions of disapproval under the Congressional Review Act (S.J.Res. 26, H.J.Res. 66, H.J.Res. 76, H.J.Res. 77) were aimed at EPA’s determination under Section 202(a) of the Clean Air Act that GHGs cause or contribute to air pollution that endangers public health and welfare; five other bills would either have required EPA to reevaluate its endangerment finding (H.Res. 974), amended the Clean Air Act to provide that greenhouse gases are not subject to the act (H.R. 4396), limited EPA’s GHG authority to motor vehicle emissions (S. 1622), or suspended EPA actions regulating stationary source emissions of GHGs for two years (S. 3072, H.R. 4753). On June 10, 2010, the Senate voted 47-53 not to proceed to debate Senator Murkowski’s S.J.Res. 26.

This report discusses elements of this controversy, providing background on stationary sources of greenhouse gas pollution and identifying options Congress has at its disposal should it decide to address the issue. The report discusses four sets of options: (1) resolutions of disapproval under the Congressional Review Act; (2) freestanding legislation delaying or prohibiting EPA action; (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: January 6, 2011
Number of Pages: 17
Order Number: R41212
Price: $29.95

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Safeguarding the Nation’s Drinking Water: EPA and Congressional Actions

Mary Tiemann
Specialist in Environmental Policy

The events of September 11, 2001, focused attention on the security status of the nation’s drinking water supplies and the vulnerability of this critical infrastructure sector to attack. Congress since has enacted security requirements for public water systems and has provided funding for vulnerability assessments, emergency planning, and drinking water research. The Environmental Protection Agency (EPA), the lead federal agency for the water sector, has worked with water utilities, state and local governments, and federal agencies to improve the drinking water security. However, water facilities have not been required to address identified risks and vulnerabilities, and recent Congresses have considered legislation to mandate such actions.

The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107- 188) amended the Safe Drinking Water Act to require some 8,400 community water systems to assess vulnerabilities and prepare emergency response plans. It authorized funding for these activities and for emergency grants to states and utilities, and it directed EPA to review methods to prevent, detect, and respond to threats to water safety and infrastructure security. The act did not require water systems to make security upgrades to address potential vulnerabilities. In most years since FY2002, Congress appropriated roughly $5 million annually for EPA to work with states and the water sector to improve the security of drinking water supplies.

In creating the Department of Homeland Security (DHS) with the Homeland Security Act of 2002 (P.L. 107-296), Congress gave DHS responsibility for assessing and protecting the nation’s critical infrastructures. However, the act did not transfer EPA’s water security functions, and the 2003 Homeland Security Presidential Directive (HSPD-7) affirmed EPA’s lead role in protecting the water infrastructure. Under this directive, EPA has responsibility for developing and providing tools and training on improving security to roughly 52,000 community water systems and 16,000 municipal wastewater treatment facilities.

In the 109th Congress, the Department of Homeland Security FY2007 appropriations act (P.L. 109-295) authorized DHS to regulate for three years high-risk chemical facilities, but the law excluded from coverage drinking water and wastewater treatment facilities.

In the 111th Congress, interest in extending and expanding security requirements for the chemical facility sector continued, as has debate over whether to include certain water utilities within the scope of such requirements. House-passed H.R. 2868 would have imposed new security requirements on drinking water and wastewater utilities, while retaining EPA’s regulatory authority for water sector utilities. The substitute version of H.R. 2868 reported by the Senate Committee on Homeland Security and Governmental Affairs excluded water utilities and proposed to extend DHS chemical facility authority for three years, create voluntary technical assistance and training programs, and create a best practices clearinghouse.

Although EPA, states, localities, and water utilities have taken steps to address security concerns, the security of the nation’s water supplies has continued to attract congressional attention. Issues have included the status of efforts by the water sector to improve security, whether to impose new federal requirements, funding needs for water systems to make security improvements, the relative roles and responsibilities of EPA and DHS regarding the water sector, and the status of research and development of technologies to help water systems detect and address potential biological and chemical contaminants. This report reviews governmental and water utility efforts to improve drinking water security.


Date of Report: January 10, 2011
Number of Pages: 23
Order Number: RL31294
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Overview of National Environmental Policy Act (NEPA) Requirements

Kristina Alexander
Legislative Attorney

The National Environmental Policy Act (NEPA) establishes environmental policies that apply to the federal government, but it is best known for imposing environmental review procedures on federal agency actions. NEPA requires agencies to review the potential environmental impacts of their projects, recording their review in a publicly available document. There are three types of environmental documents, based on the type of review: a categorical exclusion (CE), an environmental assessment (EA), and an environmental impact statement (EIS). Tiering, programmatic, and supplemental documents are subsets of these original documents.

The act dictates procedure, not results. NEPA requires agencies to follow the process so that their decisions are informed. Agencies are required to take a “hard look” at the environmental impacts, not to meet set environmental standards nor to choose the project with the least environmental consequence. This report is intended as a general introduction to NEPA, analyzing what NEPA requires for those three types of environmental documents.


Date of Report: January 12, 2011
Number of Pages: 9
Order Number: RS20621
Price: $19.95

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Environmental Quality Incentives Program (EQIP): Status and Issues

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

The Environmental Quality Incentives Program (EQIP) is a voluntary program that provides farmers with financial and technical assistance to plan and implement soil and water conservation practices. EQIP is the largest agriculture conservation financial assistance program for working lands. EQIP was first authorized in 1996 and was most recently revised by Section 2501 of the Food, Conservation, and Energy Act of 2008 (P.L. 110-246, the 2008 farm bill). It is a mandatory spending program (i.e., not subject to annual appropriations) and is administered by the U.S. Department of Agriculture’s (USDA’s) Natural Resources Conservation Service (NRCS). Funding is currently authorized to grow to $1.75 billion in FY2012. Eligible land includes cropland, rangeland, pasture, non-industrial private forestland, and other land on which resource concerns related to agricultural production could be addressed through an EQIP contract.

With the 112th Congress’s emphasis on reducing federal spending, EQIP could face tighter budget constraints with a potential reduction in mandatory funding levels and a continuing backlog of unfunded applications. Congress will also likely consider reauthorization of the 2008 farm bill because much of the current law, including EQIP, expires in 2012.


Date of Report: January 11, 2011
Number of Pages: 13
Order Number: R40197
Price: $29.95

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Renewable Fuel Standard (RFS): Overview and Issues

Randy Schnepf
Specialist in Agricultural Policy

Brent D. Yacobucci
Specialist in Energy and Environmental Policy

Federal policy has played a key role in the emergence of the U.S. biofuels industry. Policy measures include minimum renewable fuel usage requirements, blending and production tax credits, an import tariff, loans and loan guarantees, and research grants. This report focuses on the mandated minimum usage requirements—referred to as the Renewable Fuel Standard (RFS)— whereby a minimum volume of biofuels is to be used in the national transportation fuel supply each year. It describes the general nature of the RFS mandate and its implementation, and outlines some emerging issues related to the sustainability of the continued growth in U.S. biofuels production needed to fulfill the expanding RFS mandate, as well as the emergence of potential unintended consequences of this rapid expansion.

Congress first established an RFS with the enactment of the Energy Policy Act of 2005 (EPAct, P.L. 109-58). This initial RFS (referred to as RFS1) mandated that a minimum of 4 billion gallons be used in 2006, and that this minimum usage volume rise to 7.5 billion gallons by 2012. Two years later, the Energy Independence and Security Act of 2007 (EISA, P.L. 110-140) superseded and greatly expanded the biofuels blending mandate. The expanded RFS (referred to as RFS2) required the annual use of 9 billion gallons of biofuels in 2008 and expanded the mandate to 36 billion gallons annually in 2022, of which no more than 15 billion gallons can be ethanol from corn starch, and no less than 16 billion must be from cellulosic biofuels. In addition, EISA carved out specific requirements for “other advanced biofuels” and biomass-based biodiesel.

The Environmental Protection Agency (EPA) is responsible for establishing and implementing regulations to ensure that the nation’s transportation fuel supply contains the mandated biofuels volumes. EPA’s initial regulations for administering RFS1 (issued in April 2007) established detailed compliance standards for fuel suppliers, a tracking system based on renewable identification numbers (RINs) with credit verification and trading, special treatment of small refineries, and general waiver provisions. EPA rules for administering RFS2 (issued in February 2010) built upon the earlier RFS1 regulations; however, there are four major distinctions. First, mandated volumes are greatly expanded and the time frame over which the volumes ramp up is extended through at least 2022. Second, the total renewable fuel requirement is divided into four separate, but nested categories—total renewable fuels, advanced biofuels, biomass-based diesel, and cellulosic ethanol—each with its own volume requirement. Third, biofuels qualifying under each category must achieve certain minimum thresholds of lifecycle greenhouse gas (GHG) emission reductions, with certain exceptions applicable to existing facilities. Fourth, all renewable fuel must be made from feedstocks that meet a new definition of renewable biomass, including certain land use restrictions.

In the long term, the expanded RFS is likely to play a dominant role in the development of the U.S. biofuels sector, but with considerable uncertainty regarding potential spillover effects in other markets and on other important policy goals. Emerging resource constraints related to the rapid expansion of U.S. corn ethanol production have provoked questions about its long-run sustainability and the possibility of unintended consequences in other markets as well as on the environment. Questions also exist about the ability of the U.S. biofuels industry to meet the expanding mandate for biofuels from non-corn sources such as cellulosic biomass materials, whose production capacity has been slow to develop, or biomass-based biodiesel, which remains expensive to produce owing to the relatively high prices of its feedstocks. Finally, considerable uncertainty remains regarding the development of the infrastructure capacity (e.g., trucks, pipelines, pumps, etc.) needed to deliver the expanding biofuels mandate to consumers.


Date of Report: January 7, 2011
Number of Pages: 34
Order Number: R40155
Price: $29.95

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