Tag

EPA

Appeals Court Is Inundated with Waters Arguments

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Last year, the Manufacturers’ Center for Legal Action filed our lawsuit against the EPA and the U.S. Army Corps of Engineers over their expansive interpretation of their jurisdiction to require permits for the use of a wide variety of land across the country. More than 150 other business organizations, states and other groups have also challenged the “Waters of the United States” (WOTUS) rule in various courts, and many of these challenges, including ours, have been consolidated in one federal appellate court – the Sixth Circuit. Some of this background, and the justification for our litigation, is summarized in this post from February.

Two key events have happened recently. First, the NAM asked the Supreme Court in September to review a splintered decision from the Sixth Circuit that allows that court to continue to hear arguments in the case, despite a widely held view among lawyers that the Clean Water Act requires the case to be heard by a trial court, not an appeals court, in the first instance. The Administration will be filing its response next Monday. If the Court agrees to review this issue, considerable time and effort could be saved in trying to resolve the underlying merits of the challenges to the WOTUS rule.

Second, today business and municipal groups filed a detailed 93-page brief describing point by point the numerous concerns of all the petitioners about the rule. The brief contains textbook examples of arguments that are all too frequently made about government regulations: the rule was promulgated in violation of basic principles of notice-and-comment rulemaking, the agencies failed to comply with the Regulatory Flexibility Act, the rule is inconsistent with the statutory language of the statute (the Clean Water Act), the rule is unconstitutionally vague, and it violates the Commerce Clause and federalism principles. There are also more unusual arguments arising from EPA’s “covert propaganda” efforts in support of the rule.

Courts give agencies considerable deference when interpreting their statutory authority, but the Supreme Court has weighed in several times to try to provide some constitutional limits on the EPA’s jurisdiction, and a significant part of our brief is dedicated to it. The brief argues that the agencies relied too heavily on Justice Kennedy’s concurring opinion in the Rapanos case, which cannot be reconciled with the other Justices’ views in the way attempted by the EPA. EPA’s approach brings into its jurisdiction countless features that lack the volume of flow and proximity needed to ensure that effects on navigable waters are more than insubstantial or speculative.

The scope of the agencies’ jurisdiction is one of the most fundamental issues affecting the regulation of land use in the United States. Today’s brief brings us one step closer to resolving the allocation of regulatory power among federal, state and local governments.

Federal Court Rules the EPA Must Consider Job Losses from Its Regs

By | Energy, Shopfloor Main, Shopfloor Policy | No Comments

This afternoon, Judge John Preston Bailey of the U.S. District Court for the Northern District of West Virginia ruled that the Environmental Protection Agency (EPA) unlawfully ignored its duty under Section 321 of the Clean Air Act to evaluate potential and actual job loss from its regulations. The agency has rolled out tens of billions of dollars worth of new air regulations on electric utilities, energy producers, manufacturers, vehicles and other sources and readily admits it had not done a single one of these mandatory job loss evaluations before finalizing any of those regulations.

The purpose of requirements like Section 321 is to get better regulations, the kind that achieve their environmental goals while preserving a strong economy. And while the EPA made this promise virtually every time it issued a new regulation, the facts show that it never even bothered to do a Section 321 analysis any of those times. The court gave the EPA two weeks to do a Section 321 job loss analysis for the coal industry, which has faced a regulatory burden heavier than perhaps any other sector over the past decade.

Manufacturers are pleased to see that the EPA will now have to properly evaluate the impact of its regulations on jobs. ‎We are disappointed that this order comes years after the regulations at issue went final and at a time when the companies regulated have already started complying. We hope the EPA will comply with the law and routinely do job loss studies for each of its major new regulations before they are proposed, to ensure a better regulatory process.

Court Ruling Pushes EPA Toward More Regulation

By | Energy, Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Main | No Comments

Government agencies have a tremendous advantage when it comes to defending new regulations in court. Judges start with a legal presumption that not only gives the benefit of the doubt to the agency, but sets a very high bar for reversing rules that most people might not have issued. As long as an agency’s rules are authorized by statute and not clearly erroneous or otherwise an abuse of discretion, courts will accept them.

That’s what the D.C. Circuit did today when it largely upheld the Environmental Protection Agency’s (EPA) rules on boilers and incinerators. All of the challenges to the rules by the Manufacturers’ Center for Legal Action and other business organizations were rejected by the appellate court. The court upheld one EPA requirement that could not be met by any small, remote incinerator or heavy oil-fired boiler in use today. It similarly rejected industry complaints about new energy assessment and recordkeeping requirements, as well as concerns about compliance with the rules when equipment malfunctions despite full compliance with regulations and due diligence by operators.

What is unusual is that the court agreed with several arguments made by environmental groups. It ordered the EPA to issue a regulation for cyclonic burn barrels and to decide whether certain other incinerators must be regulated under the Clean Air Act. The court also ordered the agency to provide further explanations about the decisions it made not to regulate emissions of a certain hazardous pollutant (non-dioxin/furan organic pollutant), about why certain exemptions should be allowed and about why it declined to regulate certain non-mercury emissions.

The bottom line is the court upheld all of the EPA’s regulations and ordered the agency to cover even more than it did, or at least give a full explanation of why it won’t.

Will You Stand with Us to Reform Regulation?

By | Presidents Blog, Shopfloor Main | No Comments

35,000. That’s the cost of federal regulations endured by a small manufacturer with fewer than 50 employees—per year, per employee!

I think we can all agree: this isn’t the way our regulatory system should work. It is time for real reform.

That’s why the National Association of Manufacturers, in partnership with the Small Business & Entrepreneurship Council, is launching a project called Rethink Red Tape to bring the regulatory issue to life for lawmakers in Washington and provide real momentum for reform.

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Regulations are important, but the constant churn of new and misguided rules leads to regulations that are counterproductive, contradictory and next to impossible to understand. That’s especially hard for small business owners who don’t have the resources to keep pace with new regulations and absorb their higher costs.

Layers of excessive regulations hurt manufacturers’ ability to invest in new innovations, and our entire economy suffers as a result.

To correct this and enable American manufacturers and small businesses to grow and create jobs, regulatory reform has to be a bipartisan priority. Transparency, accountability and honest evaluations of small business costs need to be part of our government’s regulatory calculus. Too often, this is the exception and not the rule.

Through Rethink Red Tape, we’re working to change that, but we need your help to make this work. We need you to stand with us.

Rethink Red Tape will bring personal viewpoints and real-life stories to the conversation to explain the impact regulations have on small firms and the hours and opportunities manufacturers lose because of them.

As our program grows, we’ll identify and advance bipartisan solutions that will change the way regulations are written and give small businesses a stronger voice in the process.

Join us at www.RethinkRedTape.com and on Facebook and Twitter.

Manufacturers Need Flexibility in EPA Risk Management Plan Proposal

By | Shopfloor Policy | No Comments

Chemicals are an essential part of our everyday lives, and manufacturers prudently engage in risk management planning and invest in security as a necessary component of their business operations and to assure customer confidence. Manufacturers are committed to protecting the environment and the health and safety of their workers and communities. We are growing concerned, however, with some of the new requirements in the Environmental Protection Agency’s (EPA) proposed revisions to its Risk Management Program, which deals with onsite storage of chemicals at manufacturing facilities.

The new standards will impact manufacturers in numerous sectors, including pulp and paper; refining; chemical manufacturing; wholesalers; iron and steel; pharmaceuticals; fertilizers; coal products; food manufacturing; plastics; cement; and energy producers and utilities. Read More

Rep. Scalise, Sen. Capito introduce Legislation to Improve Air Permitting

By | Energy | No Comments

Last week, Rep. Steve Scalise (R-LA) and Sen. Shelley Moore Capito (R-WV) introduced H.R. 2557/S. 1425, the “Promoting New Manufacturing Act,” in the House and Senate. The NAM has been a longtime supporter of this bill, on which we testified and supported with a Key Vote Letter in the 113th Congress.

The Promoting New Manufacturing Act would make a series of relatively simple enhancements to the air permitting process to enable manufacturers to get their permits quicker while allowing the EPA to continue to protect the environment. It would create a permitting dashboard, requiring EPA to publish information on the regarding the estimated number of permits issued annually and timelines for making final permit decisions; it would require that if the EPA Administrator establishes or revises a national ambient air quality standard (NAAQS), the agency publish implementing regulations and guidance at the same time, including information regarding the submittal and consideration of preconstruction permit applications; and it would require EPA to report annually to Congress on actions being undertaken by the agency to expedite the processing of permit applications. Read More

House Hearing Underscores Broad Impact of Ozone Rule

By | Energy | No Comments

Wyoming has a population of about 584,000 covering 97,814 square miles. About the same number of people are crammed into Manhattan below midtown, an area that can be covered on foot over the course of a day. Where Wyoming has the Snake River Canyon, Manhattan has a river of cars snaking through canyons of skyscrapers.

It is easy to appreciate how New York City might have difficulty meeting federal ground-level ozone standard but, incredibly, there is one area in Wyoming’s vast expanse in non-compliance as well, the Upper Green River Basin. And while the area has some industrial activity, with a population of only about 10,000 people, the biggest driver of its ozone levels is geography—it is surrounded by mountain ranges on three sides. Its micro-conditions make it susceptible to having higher levels of ground-level ozone. Read More

FACT CHECK: EPA’s Legal Footing

By | Energy | No Comments

“I would not recommend, and I am confident that the Administrator would not sign, a final rule that the EPA did not believe was on firm legal footing and worthy of being upheld by the federal courts. In light of that, the effect of the draft bill would be a wholly unnecessary postponement of reductions of harmful air pollution,” said Environmental Protection Agencies (EPA) Acting Air Chief Janet McCabe.

The statement above was given in a congressional hearing, while under oath to members of Congress who were debating draft legislation that would restore some regulatory certainty for businesses and state governments by delaying implementation of EPA’s Greenhouse Gas Regulation for the existing power sector until after the inevitable legal challenges are resolved. Read More

Manufacturers Like Caterpillar Leading the Way in Reducing Greenhouse Gas Emissions

By | General | No Comments

Lost in most of the policy discussions about greenhouse gases (GHG) in Washington, is the fact that the U.S. manufacturers are already leading the world in reducing emissions. Through manufacturing ingenuity and a commitment to environmental stewardship, manufacturers have reduced their annual carbon dioxide emissions by over 10 percent from 2005 levels. Manufacturers have also been integral in helping lower the United States’ total annual carbon emissions by nearly 700 million tons over the same time period–more than any other country in the world. Read More