Tag: Environmental Protection Agency

Senate Committee Holds Confirmation Hearing on EPA Administrator

Today the Senate Committee on Environment and Public Works held a confirmation hearing for the EPA’s Assistant Administrator for the Office of Air and Radiation Gina McCarthy, President Obama’s nominee for EPA administrator.

Several senators had questions about the EPA’s proposed regulations and their impact on the economy as well as the continued act of what is known as “sue and settle” by the agency. Senator Vitter (R-LA) asked McCarthy if the EPA would change its process regarding “sue and settle” and alert other stakeholders when legal action is taken.

The NAM sent a letter yesterday to Acting EPA Administrator Bob Perciasepe asking the agency to please provide some sort of alert system for each time a lawsuit is filed against the agency or if they receive a notice of legal action.

Senator Inhofe (R-OK) asked McCarthy if the EPA planned to make any changes to the proposed greenhouse gas rule on for new power plants and she did not provide any information on the agency’s plan for the rule. This rule would essentially prevent the construction of any new coal burning power plants and several types of new gas-fired power plants. Manufacturers believe we should continue to take advantage of all sources of energy, including but not limited to coal, natural gas, oil, nuclear, renewables, and energy efficiency. Lower energy prices help manufacturers better compete and taking some sources off the table  will only hurt our long term competitiveness.

Moving forward we would like the EPA to take into careful consideration the cost and economic impact of all regulations proposed by the agency.

 

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NAM Joins Business Coalition to File Petitions for Rehearing of GHG Cases

This afternoon the National Association of Manufacturers joined a large business coalition in filing petitions with the U.S. Court of Appeals for the D.C. Circuit for an “en banc” rehearing of the cases against the Environmental Protection Agency (American Chemistry Council v. EPA and Coalition for Responsible Regulation, Inc. v. EPA) over the costly greenhouse gas regulations. Essentially the petitions ask the court for a new hearing before the entire court, not just the three judge panel.

The EPA’s greenhouse gas regulations are one of the most costly and burdensome regulations facing manufacturers. The regulations will allow the EPA the authority to go into businesses and dictate how they conduct their business and run their operations.

Under these regulations the EPA will eventually require new burdensome permitting requirements for more than 6 million stationary sources, including 200,000 manufacturing facilities, 37,000 farms and millions of other sources such as schools, universities, hospitals and even homes. Essentially these regulations will impact every aspect of our economy.

According to the latest NAM/IndustryWeek Survey of Manufacturers the unfavorable business climate due to regulations and taxes is the top concern of manufacturers. The EPA’s greenhouse gas regulations directly contribute to this uncertainty.

Ross Eisenberg is vice president of energy and resources policy, National Association of Manufacturers.

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International Paper Announces Sustainability Goals for 2020

Manufacturers continue to set ambitious goals for their sustainability programs. Last month, International Paper, announced 12 voluntary sustainability goals which included:

  • 15% improvement in energy efficiency in purchased energy use;
  • 20% absolute reduction in global GHG emissions associated with production; and,
  • 15% global increase in third-party certified fiber volume.

Other goals focused on philanthropy, safety and water use. These benchmarks were part of International Paper’s 2011 Sustainability Report which also highlighted achievements such as an Environmental Protection Agency (EPA) Climate Leadership Award, improvements in worker safety and sustainability accolades from Fortune Magazine and the Ethisphere Institute.

In a press release, Chairman and CEO John Faraci stated, “At International Paper, sustainability is more than a business practice. Environmental, social and economic performance has been at the core of our company for more than 110 years. Stewardship of the forestland and surrounding habitat is ingrained in our company’s DNA.”

We applaud International Paper’s efforts and look forward to tracking the company’s progress as it works to achieve these sustainability goals.

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Judge Grants NAM’s Motion to Dismiss Public Trust Case

If two environmental groups had their way, greenhouse gas emissions would be regulated by every state in the country, as well as by the Environmental Protection Agency (EPA) and the Departments of the Interior, Agriculture, Commerce, Energy and Defense. The groups have brought legal actions in virtually every state and against the federal government to compel government officials to impose 6 percent annual reductions in greenhouse gas emissions under a theory that each government has a duty to protect the air as a commonly shared public trust resource.

This would be a disaster for manufacturers, who would have to understand and comply with conflicting air emission requirements throughout the country.

Fortunately, a federal judge yesterday threw out their complaint against the federal agencies.  In a straightforward opinion, Judge Robert L. Wilkins of the federal district court in the District of Columbia ruled that federal courts have limited jurisdiction, and can’t hear a claim that is fundamentally a state law claim. 

He also said that, even if there were a valid claim to regulate air emissions under federal common law, that claim has been displaced by the Clean Air Act. Only the EPA has the power to set those limits, subject to judicial review.

The NAM has taken the lead in fighting a barrage of lawsuits that attempt to regulate by litigation. We intervened in this case last year, and filed and argued the motion to dismiss that has now won the judge’s approval. We also filed opposition briefs in the 2007 Massachusetts v. EPA case, in which the Supreme Court first recognized EPA authority over greenhouse gases.

Last year, we also filed in the American Electric Power case, in which the Court rejected claims to abate carbon-dioxide emissions under federal common law. Cases raising state common law claims are still pending, and we will continue to fight these battles.

This latest decision offers some optimism that private lawsuits to force changes in public policy are not gaining favor in the courts.

A summary of the case, Alec L. v. Jackson (D.D.C.), and our briefs, can be found here.

Quentin Riegel is vice president of litigation and deputy general counsel, National Association of Manufacturers.

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The EPA’s Office of Water Had a Bad Week…

Late Friday afternoon the U.S. District Court for the District of Columbia issued a ruling on the Mingo Logan Coal Company case.  This case was important because the question at hand was could the Environmental Protection Agency (EPA) withdraw a permit issued by the Army Corps of Engineers (Corps). 

The EPA withdrew its approval of certain creeks as disposal sites for a mine four years after it had given its assent to a permit issued by the Corps. The Mingo permit had always been in compliance and there was no question in that regards. EPA had simply changed their mind and revoked the approval of the disposal sites.

Arch Coal, owner of the Mingo Logan Coal Company, sued EPA and challenged their authority to veto the permit after the fact. The District Court agreed with Arch Coal that EPA exceeded their authority under the Clean Water Act when they attempted to invalidate an existing permit.  The court concluded that Clean Water Act does not give EPA the power to render a permit invalid once it is issued by the Corps.

What does this all mean? First, that the EPA has finally reached a point where even the U.S. District Court for the District of Columbia had to say no and slap their hands. Second, it means that EPA actually has to follow the law and can’t do whatever they darn please. Third, it means that businesses can rely on federal permits. Although it may cost them hundreds of thousands of dollars and years of effort to obtain a permit, once they make the investment and get the permit, the EPA can’t simply change their mind and veto it.

The court described the EPA’s actions, “It posit[ed] a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!” Judge Amy Berman Jackson went on to say that “EPA resorts to magical thinking” when coming up with a reason to  try to nullify the permit.

Even if the agency were accorded some deference under administrative law procedures, the agency’s interpretation was unreasonable and could not stand. The judge also cited the NAM’s amicus brief to show that eliminating finality from the permitting process would have a significant economic impact on industry, in turn making EPA’s assertion of power less reasonable. This was a significant victory for manufacturers and the rule of law.

If this were not enough, the Supreme Court ruled 9-0 against the EPA in the Sackett case, which involved two landowners in Idaho who attempted to build a home on their property. After they got local building permits and started work, the EPA ordered them to stop and turn the land to its previous condition, or face huge daily fines. They sued to challenge the EPA’s order.

The EPA maintained that the owners had no right to take them to court to contest whether or not there had been a violation of the law. The Supreme Court ruled that the EPA can’t deny landowners their day in court.

These are rulings that send a clear message to the EPA that it is no longer business as usual. It’s important for the EPA to work with land owners and businesses, instead of trying to veto existing permits or imposing fines and other penalties that will cost jobs and harm the economy.

Chip Yost is vice president of energy and resources policy, National Association of Manufacturers.

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Supreme Court Rules Property Owners Have Right to Challenge EPA

In a victory in the battle against the EPA’s overreach this morning the United States Supreme Court ruled on the Sackett v. EPA case in favor of the plaintiffs. The case was originally brought by an Idaho couple over the right to go to court to challenge an EPA order that blocked construction of their new home.

The couple had graded a small lot for the new house and was ordered by the EPA under the Clean Water Act to fill in the lot, replace vegetation and monitor the land for three years or face a $37,500 penalty for each day of violation. The couple then sought court review of the order but they were denied.

Today the Supreme Court ruled that the couple does have a right to go to court to get a pre-enforcement review of the order and they do not have to wait for the EPA to sue them for violating the order in order to raise their claims. While EPA still has the power to issue these kinds of orders, and most of them will never be challenged, the ruling makes judicial review possible and will help restrain the abuse of EPA’s power. The decision could restrain EPA overreach under other environmental statutes as well.

Of note was Justic Alito’s concurring opinion on the case which agreed completely with the decision but also noted that the reach of the Clean Water Act is unclear. He states that any piece of land that is wet at least part of the year is in danger of being classified by the EPA as wetlands and he says that real relief requires Congress to clarify the rule.

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule re-garding the reach of the Clean Water Act. When Congress passed the Clean Water Act in 1972, it provided that the Act covers “the waters of the United States.” 33 U. S. C. §1362(7). But Congress did not define what it meant by “the waters of the United States”; the phrase was not a term of art with a known meaning; and the words themselves are hopelessly in determinate. Unsur­prisingly, the EPA and the Army Corps of Engineers interpreted the phrase as an essentially limitless grant of authority.

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Additional Permits Issued for Alaska Drilling, Improved Process Needed

After spending billions over the last six years, Shell Oil moved one step closer to exploring for oil and gas off the coast of Alaska when the EPA finally issued an air permit for operations in the Chukchi Sea.   Shell is hopeful that other needed approvals and permits from  federal agencies will be issued, so that exploration in the 2012 can go forward. 

Alaska’s offshore likely holds world-class volumes of oil and gas.  Development of these resources will make a significant contribution to the nation’s energy security.  Jobs and government revenue will be generated not only in Alaska, but also in the Lower 48.  The University of Alaska estimates that development will create an average of nearly 55,000 jobs per year for decades and through 2057 and will generate a total of $145 billion in payroll. Federal, state and local government revenues will increase by almost $200 billion. 

While regulations that ensure offshore development is done safely and responsibly are important, the US government must also have a regulatory system that works fairly and efficiently. In Alaska, the government did years of environmental analysis before inviting companies to bid on offshore leases.

Since 2005, Shell Oil has paid the government over $2.2 billion for ten-year leases that in some cases are now six years old. Despite spending an additional $1.5 billion to prepare for exploring these leases, Shell has not  drilled even one well, largely due to the government’s inability to deliver useable permits in a timely way. 

At a time when the nation’s needs the energy, the jobs and the economic impact, developing Alaska’s resources should be a priority. Manufacturers are cautiously optimistic that the regulatory barriers will continue to be removed.    

Mahta Mahdavi is director of energy and resources policy, National Association of Manufacturers.

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House Passes Bill to Rein in the EPA

Today the House took a big step in slowing down several of the harmful Environmental Protection Agency regulations by passing the TRAIN Act (H.R. 2401). The bipartisan vote was 249-169.

Earlier this week the National Association of Manufactures sent a Key Vote letter to members of the House urguing them to vote to protect jobs by voting in favor of the bill:

Under Utility MACT and the recently finalized CSAPR, electricity costs will increase by as much as 23 percent in some of the largest manufacturing regions of our nation, resulting in a loss of 1.4 million jobs by 2020, according to National Economic Research Associates. In addition to cost increases and job losses, there will be serious grid reliability issues as coal-fired power plants are taken offline. These reliability issues will likely manifest themselves in a lack of adequate power for both industrial users and consumers.

Before imposing unduly strict mandates on America’s job creators, Congress and the regulatory agencies should employ rigorous economic analysis to better understand potential economic impacts and cost-benefit relationships. The TRAIN Act calls for a cumulative analysis of pending EPA proposals – while staying the Utility MACT proposal and CSAPR until six months after the study has been completed. This represents a responsible and prudent course of action, and we urge your support.

We’ve already seen some examples of the impact on jobs from the Cross-State Pollution rule and the Utility MACT rule will increase energy costs, severely harming manufacturers’ competitiveness. Manufacturers now urge the Senate to take up this legislation to rein in the EPA and its aggressive overreaching agenda.

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DOE Hydraulic Fracturing Report Causes Concern

The Department of Energy’s (DOE) Natural Gas Subcommittee released a draft report on August 11 that makes recommendations regarding the safety and environmental performance of hydraulic fracturing from shale formations. Manufacturers, users of one-third of the energy consumed in the United States, agree with the Subcommittee’s characterization of natural gas as “a cornerstone of the U.S. economy.”  Unfortunately, the call for increased regulation of hydraulic fracturing is a reason for concern.

The Subcommitee’s recommendations include:

  •  Required disclosure of all chemicals in hydraulic fracturing fluid – Many companies that manufacture this fluid voluntarily disclose the chemicals they use through the Frac Focus registry. Additional mandatory disclosure requirements may discourage manufacturers from developing new fluids if they know that competitors can easily find their exact “recipe.”
  • New air emission standards – Comprehensive Environmental Protection Agency (EPA) rules are already in place or are in the process of being revised. Additional regulation would be redundant, confusing, expensive and unnecessary.
  • Reduction in the usage of diesel engines at fracturing sites – This sweeping recommendation does not take into consideration that there may be no economically viable alternative to using a diesel engine at some wells.

Hydraulic fracturing is a critical process that has allowed the U.S. to take advantage of its rich shale gas resources. The majority of natural gas wells have used hydraulic fracturing, and there have been 4.3 million wells drilled in North America over 150 years. Current state regulations have been effective in protecting the environment. Manufacturers urge caution as the DOE moves forward with its final recommendations – additional federal regulations could put the brakes on a technology that is creating jobs and providing more affordable energy for all Americans.

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NAM Urges President Obama to Delay EPA Ozone Standards

Yesterday the National Association of Manufacturers was joined by other business groups in sending a letter to President Obama urging him to delay issueing new ozone standards until 2013.

From the letter:

All of us value clean air. The companies we represent, their employees and their managers all care about the quality of the air that Americans breathe. All of us breathe the same air and so do our families. We appreciate the fact that ground-level ozone levels continue to drop across most of the United States under the current de facto standard established in 1997. Moreover, U.S. companies are proactively making significant investments to meet the stricter de jure standard established in 2008, even though it has not yet been implemented.

 The newest standard proposed by EPA, however, likely would cast hundreds of counties across the United States out of compliance, making it difficult for businesses to build new facilities in those counties or expand existing ones. Further, EPA has estimated the proposed standard will cost between $20 and $90 billion annually. In our view, EPA’s estimate is based on optimistic assumptions about the development of new control technology, meaning that the costs and impact on jobs and economic growth could be much worse.

With the stalled economic recovery and manufacturing growth slowing now is not the time to impose additional costly regulations on manufacturers.

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