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Resolution Of Disapproval Of EPA Rule-Motion To Proceed

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. CHAMBLISS. Mr. President, I rise today in support of S.J. Res. 26, the resolution disapproving a rule submitted by the Environmental Protection Agency, EPA, relating to the endangerment for greenhouse gases under the Clean Air Act.

Today's debate and this resolution are about whether this Congress will allow an executive branch agency--EPA--to unleash a regulatory onslaught that within a few years will capture homes, small businesses, farms, hospitals, and apartment buildings in an expensive, intrusive, and bureaucratic regulatory program. The consideration of this resolution is about preserving the traditional and constitutional role of Congress as the elected representatives of the citizens of this country to make necessary and proper laws for the Nation.

Congress is the appropriate branch of the Federal Government to debate and design a climate change policy. Many have complained that the Senate is taking too long to do this, but that doesn't mean EPA should go ahead and regulate on its own. It is also highly cynical for administration officials to suggest that the specter of EPA regulations should force Congress to act. I don't appreciate the implied threat that if Congress doesn't go along with EPA then the agency will impose costly regulations.

Many argue that passage of the resolution would prevent increases in the vehicle fuel economy and undo the ``historic'' agreement among the Federal Government, several states, labor unions, and the auto industry. It doesn't. The National Highway Traffic Safety Administration--NHTSA--has had authority to regulate and increase Corporate Average Fuel Economy--CAFE--standards for more than 30 years. In fact, Congress directed the agency to increase the standards to at least 35 miles per gallon by 2020 in the 2007 Energy Independence and Security Act. And these new standards will reduce greenhouse gas emissions. EPA's activities on fuel economy through its so-called tailpipe rule are unnecessary to achieve the desired results, given the authorities already held by NHTSA.

Many also argue that passage of the resolution is contrary to the science of climate change. A letter generated by the Union of Concerned Scientists claims the resolution ``ignores'' the scientific findings of EPA and the Intergovernmental Panel on Climate Change, and that the resolution is an ``attack'' on the Clean Air Act. They must not have read the resolution as even a cursory review of it will dispel this notion.

The resolution states, ``That Congress disapproves the rule submitted by the Environmental Protection Agency relating to the endangerment finding ..... and such rule shall have no force or effect.'' This means the agency cannot use the Clean Air Act to control greenhouse gas emissions. This does not speak to the issue of whether climate change is happening or what is causing it. Those who claim the resolution ignores science appear to be avoiding the debate over the economic consequences and legal validity of EPA's approach. I also believe that they are attempting an end-run around a skeptical Congress. I am sorry, but that is not how the American system of government works.

I know the climate in changing. In 2006, I visited Greenland. I toured the Kangia Ice Fjord and took a boat tour of Disko Bay to view the world's largest glaciers and icebergs floating in the bay. These glaciers were formed more than 1,000 years ago. I saw the glaciers melting and the remains of a 4,000-year-old village. Obviously, it was warm enough in the past for humans to live and thrive in that part of the world, even though in recent memory we only think of Greenland as covered in ice. I talked to the scientists who have studied Greenland's glaciers for decades. They told me that while the climate is changing they don't know with any certainty if the changes are natural or caused by human activity or a combination of the two. I found it interesting that while some glaciers are melting, some are increasing in size. We just don't see what is happening on the back side.

The President and the Administrator of EPA, Lisa Jackson, have said their preference is for Congress to act. They know the Clean Air Act was not designed for controlling greenhouse gases. Yet they are swiftly moving ahead. Last week, EPA issued a final rule for regulating greenhouse gas emissions from stationary sources under the Clean Air Act's permitting programs. The so-called tailoring rule is the fourth significant action taken by the administration to regulate greenhouse gas emissions.

The first major action was EPA's determination--the Endangerment Finding--that greenhouse gas emissions from cars and light-duty trucks endanger human health and welfare. On April 1, 2010, EPA finalized the light duty vehicle rule controlling greenhouse gas emissions. Under the Clean Air Act, when a pollutant becomes subject to regulation by one provision of the Act, it then becomes subject to regulation under other provisions. Hence, greenhouse gas emissions are now subject to regulation under the Prevention of Significant Deterioration--PSD--and title V operating permit programs. It is only a matter of time before greenhouse gases are subject to other provisions in the law, such as national ambient air quality standards.

Under current law, the title V program permitting requirements are triggered when a facility releases 100 tons per year of a regulated pollutant. For the PSD program, the threshold is 250 tons per year. In the final rule, EPA ``tailors'' the application of the programs to significantly higher threshold levels. Without the tailoring rule, EPA estimates that about 6 million sources, including 37,000 farms and 3.9 million single family homes, will be required to obtain Clean Air Act permits.

EPA's own documents call the tailoring rule a commonsense approach to addressing greenhouse gas emissions from stationary sources under the Clean Air Act permitting programs. But I don't follow the agency's logic. The rule states emissions from small farms, restaurants, and all but the very largest commercial facilities will not be covered by these programs at this time. The rule establishes a schedule that will initially focus the permitting programs on the largest sources and without this tailoring rule the lower emissions thresholds would take effect automatically for greenhouse gases on January 2, 2011.

The agency, in its proposed rule, recognized the inherent problems with using the Clean Air Act. The proposed rule states, ``This extraordinary increase in the scope of the permitting programs coupled with the resulting burdens on the small sources and on the permitting authorities was not contemplated by Congress in enacting the PSD and Title V programs.'' It further states that, ``The new rules would apply Title V to millions of sources Congress did not intend to be covered and would impede the issuance of permits to the thousands of sources that Congress did intend to be covered.''

It is cold comfort that the smallest sources will not be regulated until 2016. We have a rule now that says it is not if but when hospitals, farms, small businesses, and apartment buildings can expect to have to apply for a clean air permit. We can only imagine what will happen to the economy if EPA is successful and its plans to fully regulate greenhouse gas emissions under all of the authorities of the Clean Air Act come to fruition.

One of the most troubling aspects about the tailoring rule and EPA's approach to its suite of greenhouse gas regulations is that there is no economic analysis. The agency hasn't even attempted to quantify the economic costs and regulatory burdens it will impose on American businesses and consumers. We have no idea what it will mean for jobs, economic growth or small businesses. Even though we can't quantify it or point to a document, it is not hard to imagine the significant costs it will impose.

While EPA isn't worried about this, States, businesses, unions, and individuals are. For example, in March, 20 Governors, including Governor Sunny Purdue of Georgia, wrote House and Senate leadership expressing grave concern about EPA's efforts to impose greenhouse gas regulations. They believe EPA's actions will place heavy administrative burdens on State environmental quality agencies just as States are expected to face their worst financial situations over the next 2 years. The Governors also are concerned that the regulations will be costly to consumers and could be devastating to the economy and jobs. The Governors believe that complex energy and environmental policy initiatives should be developed by elected representatives at the State and national level but not by a single Federal agency.

While Georgia believes the final rule is an improvement over the proposed one, there are still significant concerns. Most notably is its legal vulnerability. I quote from the Georgia Department of Natural Resources, Environmental Protection Division, Air Protection Branch comments on the proposed rule:

The GHG Tailoring Rule appears to be legally vulnerable and may not provide intended relief from the statutory permitting thresholds for PSD and Title V. If the Tailoring Rule is vacated, the workload for permitting authorities will increase exponentially at a time when State and Local governments are experiencing severe budgetary challenges due to the current economic climate. Vacatur of the GHG Tailoring Rule seems to be a very real possibility.

The letter further states:

We also believe that EPA has failed to take into account the length of time that it will take for permitting authorities ..... to go through rulemaking, ..... hiring, and training in order to implement the mandate of regulating GHG emissions under the Title V and PSD permitting programs. In Georgia, rulemaking will be required in order to insert the new GHG emission thresholds. Rulemaking will also be required in order to increase Title V fees consistent with the Clean Air Act requirement that permitting programs collect enough revenue to implement the program requirements. Given the current state of the economic situation in our state and country, this issue should not be taken lightly. Then, permitting authorities must hire and train staff to issue these complicated permits. This could take up to two years after the requirement is triggered. Raising the regulatory threshold will not abate the predicted permitting backlog if additional permitting personnel are not in place at the time the additional workload occurs.

EPA is moving ahead despite these concerns and the economic consequences of its plans. They will increase energy prices, add to administrative costs for companies, decrease job creation, and create a large new government bureaucracy, which will endanger economic recovery and limit future growth. While the final rule with its phased-in implementation is a small step in the right direction, the Clean Air Act continues to be the wrong tool for the job, and EPA's timeline and its shaky legal foundation will continue to create significant uncertainty for the State permitting agencies and businesses community.

At this time, there is no other option to stop EPA from moving ahead. Some of our colleagues have introduced measures to provide for a time out; others are looking at ways to codify the tailoring rule and provide permanent exemptions for small businesses. However, there are no plans for the Senate to consider these measures. If there were another option, I would be open to it.

The Congressional Review Act was designed for the purpose of reviewing agency actions. The majority leader understands this and recognizes that, ``overburdensome and unnecessary federal regulation can choke the life out of small businesses by imposing costly and often-ineffectual remedies to problems that may not exist.'' No description could be more accurate about EPA's greenhouse gas regulatory plans.

Some argue that it would be a dangerous precedent for Congress to stop EPA's endangerment finding. However, it is far more dangerous for the Nation if Congress allows an agency to impose these regulations under a law that was not designed for the purpose. By issuing the tailoring rule, the administration has again reminded us that if Congress won't legislate, EPA will regulate. I believe my colleague from Alaska was correct when she called this a highly coercive strategy. I am appalled by the actions of EPA.

There is a reason why the U.S. Senate hasn't acted on a cap and trade bill. This is because analyses of these bills shows they cause significant economic harm--job losses, higher energy prices, higher gas taxes, less economic growth. It makes no sense for Congress to pass job-killing legislation in order to stave off costly regulation.

The House and Senate cap and trade bills are truly bad for agriculture. They would dramatically increase energy and other input costs and, according to EPA, would cause the shift of 59 million acres out of production into trees. With a growing world population to feed, our farmers and ranchers will need to produce more food in the future, not less. If enacted as written today, cap and trade legislation would only push agriculture production overseas, raising many of the same concerns that have been expressed about the loss of manufacturing jobs.

Rather than driving American agriculture offshore, a more sensible approach would be to increase food, fuel, and fiber production right here at home. In this Nation, we have an abundant natural resource base, an economy built on open and transparent markets, and sufficient protections for consumers and the environment.

Last fall, Texas A&M University released a study on the House cap and trade bill. I mention it again today because it is most instructive of what we can expect to see in the agricultural sector under a cap and trade regime.

Texas A&M University used its representative farm database to study the effects of the House bill at the farmgate level. This database was developed to help Congress better understand the effects of legislation at the individual producer level. The study shows that 71 out of 98 farms in the database will be worse off under the House bill. The 27 farms that benefit do so because other producers go out of business they benefit because there are fewer acres in production, thus crop prices rise.

Some producers will see increased revenue from an offset program, but it is not a significant factor in the profitability of farms in the analysis. The study also dramatically shows the regional disparities of the House bill. Only some cornbelt farmers benefit. It's hard to imagine that members of the Senate Agriculture Committee will be able to endorse a policy that disproportionally favors certain commodities, few producers and one part of the country at the expense of others.

In January, 150 agriculture organizations sent a letter to my colleague from Alaska supporting the introduction of the resolution. These groups wrote that, ``Such regulatory actions will carry severe consequences for the U.S. economy, including America's farmers and ranchers, through increased input costs and international market disparities.'' They also believe that, ``EPA's finding puts the agricultural economy at grave risk based on allegations of a weak, indirect link to public health and welfare and despite the lack of any environmental benefit.''

On May 18, I received another letter from 49 different agriculture groups. They state:

Without relief from Congress, we fully expect the application of these programs to have severe economic impacts on agriculture. Not only will producers likely incur increased costs as a result of the regulatory impacts on other economic sectors, but agricultural producers will eventually be directly regulated. The final EPA tailoring rule estimates the average cost for these permits is $23,200 per permit. For the 37,000 farms identified by EPA as likely to require permits this would cost them more than $866 million just to obtain the permit.

In contrast to the campaign slogans and feel-good messages of hope and change for farmers, ranchers and rural America, this administration is causing great pain through its actions, especially its economic policies and far-reaching regulatory programs and goals. The endangerment finding and related regulations are only one set--albeit a very significant set--of regulatory actions facing producers and rural America. By themselves, these will impose higher energy costs on rural residents and businesses. Higher costs in rural areas mean fewer jobs and opportunities for those who live there.

Another immense expansion of Federal regulatory authority that will have severe consequences for producers and rural landowners is the administration's support for legislation to grant EPA and the U.S. Corps of Engineers--Corps--nearly unlimited regulatory control over all ``intrastate waters,'' including all wet areas within a State, such as groundwater, ditches, pipes, streets, gutters, and desert features. The administration supports giving EPA and the Corps unrestricted authority to regulate all private and public activities that may affect intrastate waters, regardless of whether the activity is occurring in or may impact water at all. Unbelievably, the administration supports eliminating the existing regulatory limitations that allow commonsense uses such as those allowed with a prior converted cropland designation. I strongly oppose this effort to expand EPA's and the Corps' regulatory control. I do not believe the Federal Government should regulate all wet areas within a State.

The administration also is attempting to circumvent one of the most highly regarded environmental statutes--the Federal Insecticide, Fungicide and Rodenticide Act, that governs the licensing and use of pesticides. This is a well-crafted law that balances the risks and benefits of pesticide use. EPA has an excellent staff of scientists and experts working in this area. However, the agency's political leadership is trying to implement by regulatory fiat a precautionary approach, which is contradictory to current law.

For example, last fall, EPA proposed to add language to pesticide product labels that will forbid pesticide applications that result in drift that could cause harm or adverse effects. For many years, EPA and state pesticide regulators recognized that a small amount of drift inevitably will occur, and that when pesticides are applied according to their label instructions, this small amount of drift does not cause an unreasonable adverse effect. If an unreasonable adverse effect is likely to be caused by a certain use of a pesticide, FIFRA requires, and Congress expects, the label to reflect that information and appropriate mitigation be required.

In April, I wrote to EPA, along with the chairman of the Senate Agriculture Committee and other colleagues, about the need for greater clarity in pesticide drift policy and noted that such clarity would benefit the agency, pesticide users and State regulatory agencies. However, we noted that the proposal set forth vague standards and would not have clarified pesticide drift policy. It also exceeded the authority granted to the agency by FIFRA. We asked the proposed policy to be reconsidered. I am pleased to note that recently EPA made the right decision to do so.

One other issue I raise reflects the administration's willingness to cast aside rational, science-based policy when given the opportunity to impose additional regulation. In January 2009, the Sixth Circuit Court of Appeals issued an opinion in National Cotton Council v. U.S. Environmental Protection Agency that would require pesticide applications to be permitted under the Clean Water Act's National Pollutant Discharge Elimination System--NPDES. The permit would be in addition to any label requirements or restrictions already placed on the use of the pesticide under FIFRA.

Unfortunately, the administration refused to appeal the decision even though it admitted in a filing with the U.S. Supreme Court this year that the Sixth Circuit Court reached the wrong decision. Pesticides are not pollutants under the Clean Water Act and have never been. Instead, EPA, for political reasons, has been working to develop a NPDES general permit for discharges from the application of pesticides. EPA released the draft permit last week for public comment and will issue a final permit in December 2010. Pesticides applications must be covered by a permit by April 9, 2011. Is your State ready to issue these permits? Are your producers and applicators ready to apply for them?

This has been a particular concern for State and public health officials as it has the potential to seriously affect their ability to control mosquitoes, especially those carrying the West Nile Virus. According to the Centers for Disease Control and Prevention, there were 720 cases, including 32 deaths, attributed to the virus in 2009. This is better than 2008, in which there were 1,370 cases, including 37 deaths. In 2009, two of those deaths were in my home State of Georgia.

Talk about overburdensome, unnecessary regulation! Requiring producers, pest control agencies and other users to obtain NPDES permits will do nothing to enhance the environment. It only doubles the number of permitted entities and creates new requirements for monitoring, surveillance, planning, recordkeeping, and reporting that only will create significant delays, costs, reporting burdens and legal risks from citizen suits. These permits will provide absolutely benefit only cost.

All issues regarding water and pesticides are addressed by EPA as part of the pesticide registration process. If there are concerns, mitigation is required. We are fortunate we have a strong law that requires rigorous science and careful balancing of risks and benefits.

The Endangerment Finding and related rules, along with the other environmental regulations planned by the administration will hurt the productivity of American farmers and ranchers and make the future for U.S. agriculture far less bright than it should be. These actions are basically a backdoor tax on every American family and business by unelected bureaucrats. Federal regulation is not the key to success or jobs in rural areas or in any other part of this Nation.

Some claim that EPA's actions should scare Congress into passing a cap and trade bill, but I disagree. Congress should not be bullied into passing bad legislation and neither should it stand for an agency that is vastly overreaching. The choice is clear to me--do Senators want EPA to impose a regulatory regime that it has tenuous authority to create or do you want Congress to make the laws of the land? If you believe Congress should develop laws and set policy, then vote in support of the resolution. I strongly oppose EPA's actions and plan to vote yes on the Murkowski resolution.

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