Tag Archives: clean water act

Federal Government

Wyoming Congresswoman to Wrangle Federal Overreach

Rep. Cynthia Lummis, a Republican from Wyoming and the new chair of the Interior Subcommittee of the House Oversight Reform Committee, says she is determined to provide strict oversight of President Barack Obama’s energy and environment policies and scale back what she believes is federal overreach.

With oversight of the EPA, the Interior Department, the Energy Department, and the Agricultural Department, amid an increasing number of executive actions and accusations of departmental mismanagement and misconduct, Lummis has plenty of work ahead.

Wyoming Water

Lummis argues the administration went too far in attempting to control water use under the Clean Water Act. In response, she co-sponsored H.R.5078, the Waters of the United States Regulatory Overreach Protection Act of 2014, a bill intended to limit the EPA’s reach under the Clean Water Act. Regarding this bill, Loomis said in a press statement,

In Wyoming, water is our single most precious natural resource, which we guard jealously and without which our communities and economies could not survive. The agency is stretching the law to the point of breaking it, claiming jurisdiction over every pond, ditch, and stream in Wyoming no matter how small or isolated.… This legislation gives state and local governments a long overdue seat at the table and ensures Congress has final say over what water is and is not subject to the Clean Water Act.

The Democrat-controlled Senate did not vote on the bill in 2014. With Republicans in control of both the House and Senate in 2015, the bill is likely to pass this year. Whether President Obama would sign the bill or veto it is an open question.

Advocating Spending Cuts

Lummis has also set her sights on reining in government spending. She drafted a bill requiring federal workforce downsizing through attrition, to save an estimated $35 billion over five years. “We’ve racked up over $18 trillion in debt simply because Washington has no idea when to stop spending,” Lummis said. Her bill, the Federal Workforce Reduction Through Attrition Act, would limit hiring of new employees as older ones retire, reducing the number of federal employees without forcing anyone one out of a job.

She also plans investigations into alleged corruption, bullying of whistleblowers, and general impropriety in the Chemical Safety Board and EPA.

Bonner Cohen, a senior fellow at the National Center for Public Policy Research, says Lummis’s oversight could be just the breath of fresh air federal agencies need. “The Obama administration has been bypassing Congress and imposing far-reaching regulations, with Capitol Hill either unable or unwilling to do anything about it. Rep. Lummis will now have a friendly Senate to work with to rein in the administrative regulatory state,” he said.

If members of Congress, as well as state and local governments, want to avoid being relegated to being little more than decorative potted plants, they should follow the example set by Rep. Lummis and aggressively oppose further usurpation of their power by Washington bureaucrats.

Federal Government, Regulation and Risks

EPA’s Climate Change Adaption Plan

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The Environmental Protection Agency has released their plans to reduce human greenhouse gas emissions and prepare for the effects of climate change. The EPA Sustainability Plan and Climate Change Adaptation Plan coincides with President Obama’s 2009 Executive Order on Environmental, Energy and Economic Performance, which set aggressive energy, climate and environmental targets for agencies, and detail how.

In the Climate Change Adaptation Plan, the EPA identifies priority actions the agency will take to incorporate considerations of climate change into its programs, policies, rules and operations to ensure they are effective under future climatic conditions. This includes:

  • Incorporating climate adaptation criteria in the Brownfields grants process to ensure cleanup actions taken by communities are effective as the climate changes.
  • Integrating considerations of climate change into the Clean Water State Revolving Funds process and continue working with states to ensure investments in water infrastructure are resilient to changes in climate.

For example, a stormwater calculator and climate adaptation tool empowers community planners to estimate the amount of stormwater runoff.

Up to this point, the aggressive regulations of the EPA have:

  • Reduced the federal government’s greenhouse gas emissions by more than 17 percent since 2008.
  • Exceeded the 24 percent energy intensity reduction from its 2003 baseline.
  • Reduced 2013 energy intensity by 25.6 percent from 2003.
  • Reduced fleet petroleum use by 38.9 percent compared to the 2005 baseline.

Federal regulations, in general, and specifically by the EPA may have good intentions, but inevitability do much more harm than good. Many examples of how these types of regulations do great harm are already well published. We can only assume that further action by the federal/state/local governments will only do more damage.

Transportation

EPA NY Bridge Loan Rejection Leads to Setback

The Environmental Protection Agency rejected most of a $511 million loan that had been requested by Governor Andrew Cuomo to finance the construction of the new Tappan Zee Bridge. The original purpose of the loan was for “enhancing the environment.” However, it became clear that the entire amount of the loan would be used for construction of the bridge. The EPA’s rejection of the loan is a major setback for the governor.

The rejection was a reminder of how difficult big infrastructure projects — and the challenges of financing them — are for governors.

So far, the state has obtained $1.6 billion in federal transportation loans, the state asked for an additional $511 million from the EPA through the Clean Water Act.

President Obama used the bridge last May as a backdrop when he urged Republicans in Congress to support his $302 billion, four-year transportation-infrastructure program.

Environment, Regulation and Risks

Environmental Regulation through Litigation

Through sue and settle litigation, interest groups have forced the Environmental Protection Agency (EPA) to issue new regulations, often bypassing proper procedures.

How does this happen? Twenty U.S. statutes contain what are known as “citizen suit” provisions, allowing citizens to file suit against a federal agency when that agency has failed to carry out a nondiscretionary duty by its prescribed deadline. The Clean Air Act, the Clean Water Act and the Endangered Species Act, for example, allow for citizen suits. And because federal agency rulemaking is notoriously behind schedule, every missed deadline provides an opportunity for litigation. The EPA has been a party to a number of these lawsuits.

  • After environmental groups file a complaint against the EPA based on these missed deadlines, the parties work out a settlement or consent decree between themselves. This process allows regulation-friendly plaintiffs to work out a rulemaking plan with a federal agency without involving third parties.
  • Intervening in these cases is difficult, and affected parties are frequently unaware that a lawsuit has even been filed until an agreement has already been worked out.
  • From 2009 to 2012, the U.S. Chamber of Commerce puts the number of sue and settle lawsuits at 71, with the Sierra Club and WildEarth Guardians leading the way as plaintiffs in 34 and 20 cases, respectively. The EPA was a defendant in 60 of these cases.

Plaintiffs have used sue and settle with great success. However, the agreements are often procedurally deficient, and the deadlines to which the litigants agree often leave interested parties with insufficient time to comment effectively on the proposed rules:

  • After a lawsuit by the Environmental Defense Fund and the Sierra Club, among others, the EPA issued its Utility MACT rule, which regulates mercury emissions for power plants. The strict deadlines in the consent decree gave the EPA a very short period of time to assess public comments and issue a final rule, despite the complexity of the rulemaking. The regulation carries an annual cost of $9.6 billion, and it has forced many coal plants to shut down. At the end of 2012, 9.5 percent of coal-fired generation capacity had decided to retire due to Utility MACT, and 20.4 percent were undecided about whether to retire.
  • Environmental groups used sue and settle in five separate lawsuits to force EPA action on states’ Regional Haze plans. The Regional Haze program is intended to be a state program. But in multiple instances, the EPA imposed its own federal plan on states, rather than allowing the states time to correct and develop their own plans, because of the deadlines to which the agency had agreed in the consent decrees. Ratepayers in these states are facing extraordinarily high electricity costs as a result of these lawsuits.

Sue and settle is an attractive vehicle for regulation, because it is very difficult for states and industries to intervene in these lawsuits. Moreover, plaintiffs are often compensated for their attorneys’ fees, incentivizing litigation.

Regulation and Risks

EPA’s Expanded Interpretation of its Permit Veto Authority Under the Clean Water Act

Congressional Hearing on the EPA’s Expanded Interpretation of its Permit Veto Authority Under the Clean Water Act

The hearing explored the power and reach of the Environmental Protection Agency’s ability to veto permits after a length of time. The section in question is 404 C, which states;

Section 404(c) authorizes EPA to prohibit, restrict, or deny the discharge of dredged or fill material at defined sites in waters of the United States (including wetlands) whenever it determines, after notice and opportunity for public hearing, that use of such sites for disposal would have an unacceptable adverse impact on one or more of various resources, including fisheries, wildlife, municipal water supplies or recreational areas.

    • Since the Clean Water Act was drafted in 1972, over 2.5 million permits have been filed in conjunction with this section. Of those 2.5 million, only 13 have ever been vetoed. 12 of which, were under republican leadership.
    • Expanded interpretation of the term “Navigable waters” has given the EPA powerful abilities to regulate anything it deems is a navigable water.
    • Of the 13 times that the EPA issued a veto, it was challenged every time. Every time, the EPA won.
    • The costly and lengthy permit process increases the values of the projects, sometimes far too much and they are forced to shut down.
    • Permits should not be allowed to utilize environmental safety as a cause to delay projects.
    • There are numerous recommendations about limiting the amount of time the EPA can veto a permit. The reason this was suggested is because the last permit was delayed after 3 years. That is far too long of time to issue a veto. Congress is currently looking over ways to implement this change to the EPA.
    • Further agenda will look to clarify the scope of jurisdiction of the Clean Water Act and interpret navigable waters.

A good question posed by Democrats is why 13 vetoes are /2.5 million permits a cause for precedence and concern? Republicans responded that they do acknowledge 12 of them were under Republican presidencies, but are still political maneuvers none the less.