Despite more favorable conditions, CAA reform in 114th Congress deemed a long shot

By Amanda Peterka | 01/23/2015 07:09 AM EST

With Republicans taking control of Congress for the first time since 2007, many of the ingredients for wide-scale reform of the Clean Air Act are in place.

With Republicans taking control of Congress for the first time since 2007, many of the ingredients for wide-scale reform of the Clean Air Act are in place.

Vocal opponents of major Clean Air Act rules have taken top spots in both the House and Senate committees with jurisdiction over environmental laws. The Obama administration has provided rallying points for opponents in the form of its proposed rules to address carbon dioxide emissions from power plants and to tighten the national ozone standard.

And industry stakeholders would eagerly jump onto such an effort.


But even in the more amenable environment of the 114th Congress, those in favor of Clean Air Act reform acknowledge it would be an uphill slog to get something through to the president’s desk.

"I think that there’s merit in having Congress consider what would be the appropriate amendments to the Clean Air Act," said Cal Dooley, president and CEO of the American Chemistry Council, "that would clarify the scope of it, that would add greater attention to how do we consider cost and benefits, and can we develop some metrics on evaluating both costs and benefits that would be more broadly accepted?"

He added: "In terms of seeing something that could pass and be signed into law, I’m a skeptic on that front."

Congress passed the basic structure of the Clean Air Act into law in 1970 and then revised it in 1977 and 1990. The 1990 amendments involved sweeping revisions, including the addition of a regulatory regime over hazardous air pollutants, a general permitting program for industrial facilities, more emphasis on acid rain precursors and new enforcement authorities for U.S. EPA.

Scott Segal, an industry lobbyist at Bracewell & Giuliani, suggested the time is ripe for a similar effort.

"Look, everybody talks about how wonderful a compromise the 1990 Clean Air Act amendments were, but they were the last time we actually revisited the statute," Segal said. "That’s 25 years ago. I think there’s probably time to take a harder look at how some of the programs that date back to the 1990s have been interpreted."

The 1990 amendments were passed under the Republican George H.W. Bush administration when Democrats controlled both houses of Congress. Segal added that he does not necessarily see the current political division between the legislative and executive branch as a hindrance. The fact that there is currently a Democratic administration and Republican control of both houses of Congress "can actually be helpful" toward achieving systemic revisions of the Clean Air Act, he said.

"Now that the Republicans have taken both houses of Congress, they have a more equal division of leverage vis à vis the White House, so now the White House has to take responsibility for things it’s going to stand for in the legislative arena," he said. "They no longer can hide behind the inability of, for example, Senate leadership to allow votes. That buffer is out of the way."

Key GOP lawmakers outline plans

Leaders on both the Senate Environment and Public Works Committee and the House Energy and Commerce Committee have expressed interest in taking another look at the Clean Air Act.

At a recent roundtable with reporters, new Senate Environment and Public Works Chairman James Inhofe (R-Okla.) said that the 1990 amendments were "very successful" and that he would be amenable to opening up the Clean Air Act again this Congress. He did not give specifics on what he hoped to accomplish, but he said that any action would line up the act with his five principles for EPW: effective bureaucracy, fiscally responsible policy, costs versus benefits, sounds science and on-the-ground effects.

Inhofe cited costs as a main concern with recent Obama administration EPA rulemakings under the act.

"To me, it’s absurd to have a regulation coming out where we don’t have any idea what the cost is and the science," he said.

Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Subcommittee on Energy and Power, has also long been interested in opening up the Clean Air Act for revision. In 2012, he convened a series of forums on the Clean Air Act to examine possible routes for reform.

"The Clean Air Act forums were quite useful, and there are some things that we continue to discuss with state authorities that are subject to the Clean Air Act, and I would say that there may be a couple of things that we might look at," Whitfield said in a recent interview in the U.S. Capitol.

"We want to do something that we feel comfortable can get a lot of support in the Senate, too, even if the president may not agree," Whitfield added. "There’ll be some issue that we might want to put out there for setting the framework for a later time."

One area where lawmakers could likely expect to receive industry support is through a reform package that adds cost considerations to air rulemakings. Historically, the Clean Air Act has been based on pollution standards that provide an adequate margin of safety for public health, but industry opponents have long argued that costs of new standards and regulations should be taken more into account. A reform package imposing new cost considerations could potentially halt regulations like the proposed power plant rules and tighter National Ambient Air Quality Standards in the future.

Meanwhile, both Inhofe and Whitfield have also said they have other items on their plates before potential Clean Air Act reform. Inhofe laid out an aggressive agenda that, along with addressing EPA regulations, includes a long-term highway transportation bill and Toxic Substances Control Act reauthorization. Whitfield said that he hopes his committee will take up broader energy bills to address efficiency, infrastructure and grid security.

At the very least, industry stakeholders will chip away at the Obama administration’s regulations under CAA. Most observers expect oversight activities to ramp up and for lawmakers to introduce narrow bills targeting specific regulations. Inhofe said he also plans to make use of the Congressional Review Act, which allows Congress to challenge final regulations.

Top targets in the Clean Air Act could be the administration’s proposed carbon dioxide regulations for power plants, the pending change to the national ozone standard, and the renewable fuel standard.

"If the bar is, can it get to the president’s desk, we have hope that there will be those measures that both sides of the aisle can agree on that would improve these various different air regulatory challenges that manufacturers are facing," said Ross Eisenberg, vice president of natural resources and energy policy at the National Association of Manufacturers.

But early indications show that gathering bipartisan support, even from Democrats who have previously proposed opening up the Clean Air Act, would be tough. Sen. Tom Carper (D-Del.), who in 2010 introduced a bill with Sen. Lamar Alexander (R-Tenn.) to amend the act by requiring tighter curbs on sulfur dioxide, nitrogen oxide and mercury, said he is concerned about taking another look at the act this Congress.

"My initial inclination about opening up the Clean Air Act and trying to do something with it, and especially with a House of Representatives like we have today, would be concerning," Carper said in a recent interview. "I think what I need to see is willingness of Republicans in the House and the Senate to show on clean air issues the kind of thoughtful approach that Lamar Alexander has shown over the years. If we saw more of that, there would be more willingness to try to consider some modifications."

And environmentalists, predictably, would strongly oppose any effort by this Congress to open up the act. Terry McGuire, a Washington representative for the Sierra Club, said that his group would be "vehemently opposed."

"Congressional Republicans have been unabashed in their efforts to gut our bedrock environmental laws, and, over the past few years, their efforts have become even more extreme," McGuire said. "We see no evidence that this will change with the 114th Congress."

McGuire added that he felt the Clean Air Act still widely had the public’s support, citing polling data by the American Lung Association.

‘Most politically viable alternative’

EPA in November proposed to tighten the National Ambient Air Quality Standard for ozone from 75 parts per billion to between 65 and 70 ppb. The proposal has wide support from environmental and public health advocates, while industry groups say that its costs could make it the most expensive regulation in history (Greenwire, Nov. 26, 2014).

One bill that could see a rebirth in the 114th Congress is legislation introduced by Sen. John Thune (R-S.D.) and Rep. Bob Latta (R-Ohio) that would block EPA from issuing a tighter standard until most of the country has demonstrated compliance with the current standard. The bill would also compel EPA to consider the costs and feasibility of a more stringent standard when it makes decisions about where to set the limit for ozone pollution (E&E Daily, Sept. 18, 2014).

Dooley of the American Chemistry Council called the bill "the most politically viable alternative that’s specific to ozone."

"The Thune approach on ozone is a common-sense approach," he said. "Let’s fully implement the existing regulation before creating greater economic uncertainty by having a new standard imposed. We think that would be consistent with the broader public’s interest, as well as economic recovery."

Supporters of EPA’s actions downplayed the chances of legislation getting through. The House version of the bill last year had just one Democratic co-sponsor; the Senate version did not have any Democratic support.

"I expect there’s going to be, as is typical and predictable, a number of hearings, a number of letters written back and forth, and much rhetoric," said Bill Becker, executive director of the National Association of Clean Air Agencies, an organization representing state and local air regulators.

"While I think there’s going to be some oversight in the House and Senate and potential threats by various members of Congress," Becker added, "in the end, as Congress and others bore down and see what EPA has done and how they followed the science, I don’t think anything will change."

EPA acting air chief Janet McCabe also expressed confidence that the agency’s various air regulations on the agenda for the year, including the revised ozone standard, would stand up to congressional review.

"These are all really important issues, and people care about them a lot; they need to be aired," she said. "We’ll work with Congress, and what I want to focus on is making sure that the work we do is sound on the science, is transparent, so that everybody has an opportunity to weigh in on that science, and that we’re following the law, the Clean Air Act, and doing what we’re supposed to do. And if we’re doing that, I think we’re in a good place."

RFS reform?

Another avenue for chipping away at the Clean Air Act could be through the renewable fuel standard, which Congress first added in 2005 and then revised in 2007 to compel refiners to add increasing amounts of ethanol and advanced biofuels into petroleum fuels. The RFS has been under fire for the past several years, most recently because of EPA’s failure to set last year’s annual volume standards.

Already, Rep. Jim Sensenbrenner (R-Wis.) has reintroduced legislation targeting EPA’s approval of gasoline containing a higher blend of ethanol in the House. In the Senate last week, Sens. Dianne Feinstein (D-Calif.) and Pat Toomey (R-Pa.) introduced an amendment to the Keystone XL legislation that would remove the corn ethanol portion of the renewable fuel standard.

"There’s a situation where I think that the majority of members of Congress — and I believe the administration, too — would admit that the time is right for targeted reform of the renewable fuel standard," Segal said. "Look, the EPA embarrasses itself almost annually every time it fails to set the standard for the renewable volume in the same year that that standard is supposed to be implemented. It is the poster child for a poorly implemented program."

But even critics of the standard acknowledge that there’s no consensus on what reform of the RFS would actually look like, should it be accomplished. Whitfield listed the lack of consensus as a major barrier toward getting to reform; his committee held a series of hearings on the standard last year but failed to write a comprehensive reform package.

Bob Dinneen, president and CEO of the ethanol trade group Renewable Fuels Association, said he is confident that the standard will hold, pointing to bipartisan support in areas with major ethanol industries and advanced biofuel projects. The RFS, Dinneen predicted, will likely just be "something to hold hearings on later this year."

"I think Republicans want to make sure that they put points on the board," Dinneen said. With regard to RFS reform, "you see people scatter in different directions because you have many different agendas there, and reform means something different to different people."

Reporter Nick Juliano contributed.