[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EPA REGULATORY OVERREACH:
IMPACTS ON AMERICAN COMPETITIVENESS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
June 4, 2015
__________
Serial No. 114-21
__________
Printed for the use of the Committee on Science, Space, and Technology
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Available via the World Wide Web: http://science.house.gov
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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas
F. JAMES SENSENBRENNER, JR., ZOE LOFGREN, California
Wisconsin DANIEL LIPINSKI, Illinois
DANA ROHRABACHER, California DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas SUZANNE BONAMICI, Oregon
MICHAEL T. McCAUL, Texas ERIC SWALWELL, California
STEVEN M. PALAZZO, Mississippi ALAN GRAYSON, Florida
MO BROOKS, Alabama AMI BERA, California
RANDY HULTGREN, Illinois ELIZABETH H. ESTY, Connecticut
BILL POSEY, Florida MARC A. VEASEY, TEXAS
THOMAS MASSIE, Kentucky KATHERINE M. CLARK, Massachusetts
JIM BRIDENSTINE, Oklahoma DON S. BEYER, JR., Virginia
RANDY K. WEBER, Texas ED PERLMUTTER, Colorado
BILL JOHNSON, Ohio PAUL TONKO, New York
JOHN R. MOOLENAAR, Michigan MARK TAKANO, California
STEVE KNIGHT, California BILL FOSTER, Illinois
BRIAN BABIN, Texas
BRUCE WESTERMAN, Arkansas
BARBARA COMSTOCK, Virginia
DAN NEWHOUSE, Washington
GARY PALMER, Alabama
BARRY LOUDERMILK, Georgia
C O N T E N T S
June 4, 2015
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative Lamar S. Smith, Chairman, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 6
Written Statement............................................ 7
Statement by Representative Eddie Bernice Johnson, Ranking
Member, Committee on Science, Space, and Technology, U.S. House
of Representatives............................................. 8
Written Statement............................................ 9
Witnesses:
Mr. Bob Kerr, President, Kerr Environmental Services Corp.
Oral Statement............................................... 11
Written Statement............................................ 14
Mr. Bill Kovacs, Senior Vice President, Environment, Technology
and Regulatory Affairs, U.S. Chamber of Commerce
Oral Statement............................................... 26
Written Statement............................................ 28
Dr. Jerome A. Paulson, FAAP Chair, American Academy of Pediatrics
Council on Environmental Health Executive Committee
Oral Statement............................................... 50
Written Statement............................................ 52
Mr. Ross Eisenberg, Vice President, Energy and Resources Policy,
National Association of Manufacturers
Oral Statement............................................... 63
Written Statement............................................ 65
Discussion....................................................... 90
Appendix I: Answers to Post-Hearing Questions
Mr. Bill Kovacs, Senior Vice President, Environment, Technology
and Regulatory Affairs, U.S. Chamber of Commerce............... 118
Dr. Jerome A. Paulson, FAAP Chair, American Academy of Pediatrics
Council on Environmental Health Executive Committee............ 136
Mr. Ross Eisenberg, Vice President, Energy and Resources Policy,
National Association of Manufacturers.......................... 140
Appendix II: Additional Material for the Record
Documents submitted by Representative Lamar S. Smith, Chairman,
Committee on Science, Space, and Technology, U.S. House of
Representatives................................................ 146
Documents submitted by Representative Eddie Bernice Johnson,
Ranking Member, Committee on Science, Space, and Technology,
U.S. House of Representatives.................................. 159
Documents submitted by Representative Donna F. Edwards, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 165
Document submitted by Representative Suzanne Bonamici, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 174
Document submitted by Representative Don S. Beyer, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 216
Document submitted by Representative Mark Tonko, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 219
Document submitted by Representative Gary Palmer, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 222
EPA REGULATORY OVERREACH:
IMPACTS ON AMERICAN COMPETITIVENESS
----------
THURSDAY, JUNE 4, 2015
House of Representatives,
Committee on Science, Space, and Technology,
Washington, D.C.
The Committee met, pursuant to call, at 10:09 a.m., in Room
2318 of the Rayburn House Office Building, Hon. Lamar Smith
[Chairman of the Committee] presiding.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. The Committee on Science, Space, and
Technology will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
Welcome to today's hearing titled ``EPA Regulatory
Outreach: Impacts on Industry.'' I am going to recognize myself
for five minutes for an opening statement, and then I'll do the
same for the Ranking Member.
Over the last year, the Environmental Protection Agency has
released some of the most expensive and expansive regulations
in its history. These rules will cost billions of dollars,
place a heavy burden on American families, and diminish the
competitiveness of American industry around the world.
Today's hearing will examine this Administration's
unprecedented regulatory agenda and the manner in which EPA has
used secret science, questionable legal interpretations, and
flawed analysis to promote these rules. Specifically, we will
hear from our witnesses about how the Clean Power Plan, the
Ozone National Ambient Air Quality Standards, and the
definition of the ``Waters of the United States'' adversely
impact the American economy with little benefit to our
environment.
The so-called Clean Power Plan is a power grab that will
force states to reach arbitrary and often impossible targets
for carbon emissions. These measures will impose tremendous
costs on everyday Americans. It will shut down large numbers of
affordable power plants, which increases the cost of
electricity and puts the reliability of the electric grid into
question. The Clean Power Plan will have an even greater impact
on those who live on fixed incomes, such as the elderly and the
poor, who are the most vulnerable to increases in the price for
some of our most basic necessities like electricity. EPA
asserts that the Clean Power Plan will help combat climate
change. However, EPA's own data demonstrates that is not the
case. The EPA data shows that this regulation would eliminate
much less than one percent of global carbon emissions and would
reduce sea-level rise by only 1/100th of an inch, the thickness
of three sheets of paper. This rule represents massive costs
without significant benefits. In other words, it's all pain and
no gain.
EPA also seeks to impose stricter ozone standards by
lowering the standard from the current 75 parts per billion to
between 65-70 ppb. Analysis conducted by EPA shows that this
rule would cost at least $15 billion annually, and industry
groups believe the costs will be even greater. Once again,
these costs come with few benefits. In fact, EPA's own figures
show that since 1980, ozone levels have decreased by 33
percent. Today's air quality will continue to improve with the
expected development of practical new technologies.
Last week, the EPA submitted its final rule to define the
``Waters of the United States.'' This is the EPA's latest
attempt to expand its jurisdiction and increase its power to
regulate American waterways, even if that means invading
Americans' backyards. The rule will make it difficult for
farmers and others to improve their land and expand their
businesses. While the draft rule left many questions as to
which bodies of water the EPA will claim under its
jurisdiction, the final rule is more specific. As many had
predicted, EPA has claimed unprecedented jurisdiction over many
different kinds of water, including those that temporarily
result from a ``drizzle.'' The EPA actually used that word,
``drizzle.'' EPA will now have the authority to oversee
features such as prairie potholes and even areas that are not
always filled with water. Under this regulatory regime,
Americans will be subject to required permits and the constant
threat of government intervention. The onslaught of EPA
regulations continues.
I look forward to hearing from today's witnesses about the
impact of these burdensome EPA regulations.
[The prepared statement of Chairman Smith follows:]
Prepared Statement of Chairman Lamar S. Smith
Over the last year, the Environmental Protection Agency (EPA) has
released some of the most expensive and expansive regulations in its
history.
These rules will cost billions of dollars, place a heavy burden on
American families and diminish the competitiveness of American industry
around the world.
Today's hearing will examine this unprecedented regulatory agenda
and the manner in which EPA has used secret science, questionable legal
interpretations, and flawed analysis to promulgate these rules.
Specifically, we will hear from our witnesses about how the Clean
Power Plan, the Ozone National Ambient Air Quality Standards and the
definition of the ``Waters of the United States'' unreasonably impact
the American economy with little benefit to our environment.
The so-called Clean Power Plan, proposed by EPA last June, is a
power grab that will force states to reach arbitrary and often
impossible targets for carbon emissions.
These measures will impose tremendous costs on everyday Americans.
It will shut down large numbers of affordable coal-fired power plants,
which increases the cost of electricity and puts the reliability of the
electric grid into question.
The Clean Power Plan will have an even greater impact on those who
live on fixed incomes, such as the elderly and the poor, who are the
most vulnerable to increases in the price for some of our most basic
necessities like electricity.
EPA asserts that the Clean Power Plan will help combat climate
change. However, EPA's own data demonstrates that is not the case.
Even EPA data shows that this regulation would eliminate much less
than one percent of global carbon emissions and would reduce sea level
rise by only 1/100th of an inch (according to NERA economic
consulting), the thickness of three sheets of paper.
This rule represents massive costs without significant benefits. In
other words, it's all pain and no gain.
EPA also seeks to impose stricter ozone standards by lowering the
standard from the current 75 parts per billion (ppb) to between 65-70
ppb. Analysis conducted by EPA shows that this rule would cost at least
$15 billion annually, and industry groups believe the costs will be
even greater.
Once again, these costs come with few benefits. In fact, EPA's own
figures show that since 1980, ozone levels have decreased by 33
percent.
Today's air quality will continue to improve with the expected
development of practical new technologies.
Just last week, the EPA submitted its final rule to define the
``Waters of the United States.''
This is the EPA's latest attempt to expand its jurisdiction and
increase its power to regulate American waterways-even if that means
invading Americans' own backyards.
The rule will make it difficult for farmers and builders to improve
their land and expand their businesses.
While the draft rule left many questions as to which bodies of
water the EPA will claim under its jurisdiction, the final rule is more
specific. As many had speculated, EPA has claimed unprecedented
jurisdiction over many different kinds of water, including those that
temporarily result from a ``drizzle.''
EPA will now have the authority to oversee features such as
``prairie potholes'' and even areas that are not always filled with
water.
Under this regulatory regime, Americans will be subject to
stringent permitting and the constant threat of government
intervention. The onslaught of EPA regulations continues.
I look forward to hearing from today's witnesses about the impact
of these burdensome EPA regulations.
Chairman Smith. I now recognize the Ranking Member, the
gentlewoman from Texas, Ms. Johnson, for her opening statement.
Ms. Johnson of Texas. Thank you very much, Mr. Chairman.
Unfortunately, today's hearing is just a continuation of
the same familiar theme we have heard in this Congress:
resistance to the EPA's efforts to carry out its mission to
protect the nation's environment and the public health,
resistance that is unsupported by scientific evidence.
It thus should not be a surprise that this hearing, like
all others on EPA's activities, will fail to offer any
constructive solutions for lowering ozone and cutting carbon
emissions. Instead, it will serve as one more platform for
industry to voice its opposition to regulations that will make
the air we breathe cleaner, the water we drink safer, and that
will help address the looming challenge of climate change. Just
this week, as a matter of fact, about 30 leaders of
denominations throughout the African American community, the
national leadership, came to the Congressional Black Caucus to
announce their national movement to support cleaning up the
environment.
And while Congressional oversight of EPA's activities is
appropriate, the hearings held by this Committee have not met
standards of serious oversight. For example, this Committee has
failed to bring the expertise necessary to truly examine the
research, policies and technologies needed to confront the most
important environmental issue of our time: climate change.
Instead, the so-called experts the Majority has brought before
this Committee too often represent views from outside the
mainstream of the scientific community and are industry
opponents with a vested interest in maintaining the status quo.
It is puzzling to me that our Committee is going down such a
path just as other nations and many in the business community
are stepping up to address the challenge presented by climate
change. Those nations and those businesses are looking to the
United States government to provide leadership.
Just last week, six major oil companies, including BP,
Shell, and Total sent a letter to the United Nations
recognizing climate change and the role of their companies in
lowering carbon emissions. In the letter they state: ``For us
to do more, we need governments across the world to provide us
with clear, stable, long-term, ambitious policy frameworks.
This would reduce uncertainty and help stimulate investments in
the right low-carbon technologies and the right resources at
the right pace.'' It is unfortunate that instead of
contributing to the development of this long-term policy that
these oil companies are asking Congress for, this Committee has
too often become a forum for climate change denial.
With respect to today's hearing, it is clear that a cleaner
environment and a stronger economy are not mutually exclusive.
Stricter pollution limits have historically led to innovation
and the creation of new technologies that have wound up
creating jobs while protecting our environment. I am confident
American industry will continue that record of innovation and
job creation as new environmental standards are adopted.
And finally, I am proud to say that I was a nurse before I
entered politics, and I can think of no mission of the federal
government that is more important or noble than EPA's mission
to protect human health and the environment. I look forward to
Dr. Paulson's testimony on the public health benefits of the
environmental regulations we will be discussing today.
In closing, I look forward to the day when this Congress
and this Committee will step back from the counterproductive
opposition to EPA's efforts to carry out its statutorily
mandated mission. It is not a good use of our time, and I hope
that we can instead come together to advance our economy and a
cleaner environment and a healthier public.
Mr. Chairman, before I yield back, I'd like to enter into
the record the letter that I mentioned in my remarks. I thank
you, and I yield back the balance of my time.
[The prepared statement of Ms. Johnson of Texas follows:]
Statement submitted by full Committee Ranking Member
Eddie Bernice Johnson
Thank you, Mr. Chairman. Unfortunately today's hearing is
just a continuation of the same familiar theme we have heard in
this Congress--resistance to the EPA's efforts to carry out its
mission to protect the nation's environment and the public
health--resistance that is unsupported by the scientific
evidence.
It thus should not be a surprise that this hearing, like
all the others on EPA's activities, will fail to offer any
constructive solutions for lowering ozone or cutting carbon
emissions. Instead, it will serve as one more platform for
industry to voice its opposition to regulations that will make
the air we breathe cleaner, the water we drink safer, and that
will help address the looming challenge of climate change.
And while congressional oversight of EPA's activities is
appropriate, the hearings held by this Committee have not met
the standard of serious oversight. For example, this Committee
has failed to bring in the expertise necessary to truly examine
the research, policies, and technologies needed to confront the
most important environmental issue of our time--climate change.
Instead, the so-called experts the Majority has brought before
this Committee too often represent views from outside the
mainstream of the scientific community or are industry
opponents with a vested interest in maintaining the status quo.
It is puzzling to me that our Committee is going down such
a path just as other nations and many in the business community
are stepping up to address the challenge presented by climate
change. Those nations and those businesses are looking to the
United States government to provide leadership. Just last week,
six major oil companies, including BP, Shell, and Total sent a
letter to the United Nations recognizing climate change and the
role of their companies in lowering carbon emissions. In the
letter they state: ``For us to do more, we need governments
across the world to provide us with clear, stable, long-term,
ambitious policy frameworks. This would reduce uncertainty and
help stimulate investments in the right low-carbon technologies
and theright resources at the right pace.''
It is unfortunate that instead of contributing to the
development of the long-term policies that these oil companies
are asking Congress for, this Committee has too often become a
forum for climate change denial.
With respect to today's hearing, it is clear that a cleaner
environment and a strong economy are not mutually exclusive.
Stricter pollution limits have historically led to innovation
and the creation of new technologies that have wound up
creating jobs while protecting our environment. I am confident
American industry will continue that record of innovation and
job creation as new environmental standards are adopted.
Finally, I am proud to say that I was a nurse before I
entered politics. And I can think of no mission of the federal
government that is more important or noble than EPA's mission
to ``protect human health and the environment." I look forward
to Dr. Paulson's testimony on the public health benefits of the
environmental regulations we will be discussing today.
In closing, I look forward to the day when this Congress
and this Committee will step back from the counterproductive
opposition to EPA's efforts to carry out its statutorily
mandated mission. It is not a good use of our time, and I hope
that we can instead come together to advance our economy and a
cleaner environment and healthier public.
Mr. Chairman, before I yield back I'd like to enter into
the record the letter that I mentioned in my remarks. Thank you
and I yield back the balance of my time.
Chairman Smith. Without objection.
[The information appears in Appendix II]
Chairman Smith. And while we're asking unanimous consent to
put items into the record, I'd like to ask unanimous consent to
put into the record letters or documents we received from the
Small Business and Entrepreneurship Council, from the American
Chemistry Council, and that does it for right now.
[The information appears in Appendix II]
Chairman Smith. Thank you, Ms. Johnson, for your opening
statement.
Let me go on and introduce our witnesses today. Our first
witness is Mr. Bob Kerr, President of Kerr Environmental
Services Corporation. Mr. Kerr has 29 years' experience as an
environmental consultant specializing in stream and wetland
mitigation, natural resources consulting, National
Environmental Policy Act compliance, and environmental
contaminant studies. Mr. Kerr received his bachelor's degree in
biology from the State University of New York at Fredonia and
his master's degree in marine environment studies from Stony
Brook University.
Our next witness today is Mr. Bill Kovacs, Senior Vice
President for Environment, Technology and Regulatory Affairs at
the U.S. Chamber of Commerce. Mr. Kovacs initiates and leads
multidimensional national issue campaigns on comprehensive
energy legislation, complex environmental rulemakings,
telecommunications reform, emerging technologies, and the
systematic application of sound science to the federal
regulatory process. Mr. Kovacs received his bachelor's degree
from the University of Scranton and his law degree from Ohio
State University.
Our next witness is Dr. Jerome Paulson, Chair of the
American Association of Pediatrics Council on Environmental
Health Executive Committee. Dr. Paulson also directs the Mid-
Atlantic Center for Children's Health and Environment, a
federally funded environmental health specialty unit that
provides education and outreach to health professionals,
parents and the community. In addition, Dr. Paulson has served
as a Special Assistant to the Director of Centers for Disease
Control's National Center on Environmental Health. Dr. Paulson
received his bachelor's degree in biochemistry from the
University of Maryland and his M.D. from Duke University.
Our final witness today is Mr. Ross Eisenberg, Vice
President of Energy and Resources Policy at the National
Association of Manufacturers. Mr. Eisenberg oversees NAM's
energy and environmental policy work and has expertise on
issues that range from energy production and use to air and
water quality, energy efficiency, and environmental regulation.
Before joining NAM in 2012, Mr. Eisenberg spent more than five
years as Environmental and Energy Counsel at the U.S. Chamber
of Commerce. Mr. Eisenberg received his bachelor's degree in
English and political science from Emery University and his law
degree from Washington Lee University School of Law.
We welcome you all and look forward to your testimony
today, and Mr. Kerr, we'll begin with you. Make sure your mic
is on there.
TESTIMONY OF MR. BOB KERR, PRESIDENT,
KERR ENVIRONMENTAL SERVICES CORP.
Mr. Kerr. Thank you. Chairman Smith, Members of the
Committee, I appreciate the opportunity to testify today. My
name is Bob Kerr, and I'm President of Kerr Environmental
Services, an environmental consulting and water resources
engineering firm located in Virginia Beach, Virginia. I've
provided wetlands consulting and permitting assistance
throughout Virginia and North Carolina for more than 26 years.
Since 1972, the Clean Water Act has played an important
role in improving the quality of the nation's water resources
yet there continues to be frustration and uncertainty over the
scope of the Act and the appropriate role of the federal
government in protecting the nation's waters.
Decades after the enactment of the Clean Water Act, there
still is no easy way to determine if certain types of waters
are subject to state law or federal mandates. EPA and the Corps
recently issued a rule intended to clarify what is subject to
federal regulation. Unfortunately, the rule does not provide
the needed predictability and certainty in the permitting
process. It fails to follow the intent of Congress, ignores
Supreme Court precedent, and does not respect the authority of
the state to regulate their land and water resources.
The agencies claim the rule does not expand federal
jurisdiction but that's simply not the case. The rule
establishes a broader definition of ``tributaries,'' which, for
the first time, includes ditches and streams that only flow
after it rains. It also allows the agencies to regulate
intermittent and ephemeral drainages by rule classifying them
as tributaries whereas before the agencies required an analysis
of their significant nexus to traditional navigable waters
before federal jurisdiction could be established. While this
certainly provides clarity, it does not limit jurisdiction.
The new definition of ``neighboring'' includes areas that
were not previously federally regulated such as non-wetlands
located more than a quarter of a mile from a traditional
navigable water or similar features located within a floodplain
and up to 1,500 feet from the feature. Moreover, the agencies
retain extensive authority to interpret certain ambiguous
definitions as they see fit. This will allow for the
inconsistent application of the rule among regulators both
within a Corps district and across the country. Ultimately, the
rule will lead to more litigation, project delays, more
landowners needing permits, and the higher costs of permitting
avoidance and mitigation.
You might look at the rule and think it's a dream come true
for a consultant like me because more regulation will mean more
business. I fear the exact opposite. Under the new rule, I'll
need to complete more jurisdictional determinations, will have
to conduct multiple tests to determine whether a feature
qualifies as a water of the United States. It'll take
additional time and resources to complete the tests, and that
will cost clients more money. Not knowing their permit costs in
advance increases financial risk for my clients. As such,
clients may not--may decide not to pursue some projects as a
result.
Some cases may also be so complex that they are too time-
consuming or costly to resolve. In such cases, clients have the
option to concede federal jurisdiction and proceed with
permitting and mitigation through a preliminary jurisdictional
determination, but that isn't a fair program to me nor does it
keep the legislative intent of the Clean Water Act, and that's
not good for the economy as a whole.
To start to fix this, we need a new rule that respects the
state's role in regulating waters. Many aspects of the Clean
Water Act are vague but it's clear that Congress intended to
create a partnership between the federal agencies and state
government to protect our nation's water resources. The Supreme
Court has twice affirmed that the Clean Water Act places limits
on federal authority. There is a point where federal authority
ends and state authority begins. The final rule published by
the EPA and Corps would assert jurisdiction over many features
that are isolated, carry only minor volumes of water, or have
only theoretical impacts on traditional navigable waters. These
waters are properly regulated by the states.
The federal government cannot just assert jurisdiction over
everything, yet that appears to be the agencies' solution, and
many of the bright-line limits written into the rule seem so
large in scale or so vague as to have created no actual
limitation. Precedent suggests that the courts will again have
to rein in the overarching rule but only after countless years
of litigation. The wiser path forward is for Congress to act
now. Let's get the agencies to withdraw the rule, resolve the
problems, provide the clarity we need as to what constitutes a
water of the United States.
Thank you again for the opportunity to testify today.
[The prepared statement of Mr. Kerr follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. Thank you very much.
Mr. Kovacs.
TESTIMONY OF MR. BILL KOVACS,
SENIOR VICE PRESIDENT, ENVIRONMENT,
TECHNOLOGY AND REGULATORY AFFAIRS,
U.S. CHAMBER OF COMMERCE
Mr. Kovacs. Thank you, Chairman Smith and Ranking Member
Johnson and Members of the Committee.
For my opening remarks today, I'm going to address the
question many of us have been asking for a while: How did an
Environmental Protection Agency acquire such great power over
energy policy, state waters, land use, and the nation's
economic development at the expense of states which implement
over 90 percent of the federally delegated programs and are the
main point of contact for the regulated community?
The purpose of regulation is to implement the laws passed
by Congress in the most efficient way to achieve the
Congressional intent. In the 1970s, Congress when it enacted
these environmental laws had very little knowledge of how to
protect the environment. It also recognized that while it was
protecting the environment, it would cause, and I emphasize,
they recognized in 1970 it would cause plants to shut down,
jobs to be lost, and harm to impacted communities. But to deal
with this dilemma, Congress gave the EPA very broad authorities
to protect the environment but also mandated that the EPA
continuously evaluate the potential loss or shifts in
employment resulting from the regulations so that Congress
could make corrections based on actual input.
Congress also authorized citizen suits by granting access
to the courts to anyone protecting the environment, in effect
granting special environmental enforcement authorities to
private-sector entities. Then in 1984, the Supreme Court
granted deference to EPA's decisions where Congress was silent
or vague on any of the statutory provisions in thousands of
pages of legislation. In essence, the Supreme Court authorized
EPA to fill in all of the gaps in the legislation. Almost from
the beginning, EPA missed a high percentage of its
Congressionally mandated deadlines. Since EPA misses between 84
percent and 98 percent of its deadlines, depending on which
study you believe, citizen suits were brought to force the EPA
to comply with the deadlines. Rather than arguing it had
discretion in meeting the conflicting priorities, EPA entered
into consent decrees with advocacy groups agreeing to implement
the regulations requested, thereby letting these groups set the
policy for the Agency and the priorities.
The best illustration of the impact of the sue-and-settle
process is that between 2000 and 2013 time frame, approximately
425 agencies issued almost 50,000 regulations but only 30 of
those regulations were costing over a billion dollars a year to
the regulated community or to the states, and EPA issued 17 of
the 30, and those 17 account for 82 percent of all the costs
for all 30 rules. Beginning in 1980 and onward, Congress passed
numerous regulatory laws to provide guidance to the agencies as
to the type of information needed to be developed by the agency
to ensure that it complied with Congress's intent to have a
sound rulemaking record based on fact, science and economics.
These statutes were the Information Quality Act, the Regulatory
Flexibility Act, and unfunded mandates reform. EPA routinely
ignores Congressional mandates, and, more importantly, it has
never started in 35 years a continuing evaluation of the
employment impacts of its regulations, thereby leaving Congress
without the information needed to legislate.
Therefore, the condition we have today and the
circumstances we find ourselves in is we have an agency that
has been given broad delegated authority to make policy. You
have a federal judiciary that has said that anything that you
don't describe in clear terms, that they have--that based on
deference, they have the authority to fill in the legislative
gaps.
The development of secret sue-and-settle agreements allows
these advocacy groups to set agency policy, and we have an
agency that for 35 years has refused to evaluate the impact of
regulations on employment. We also have an agency that
routinely ignores Congressional mandates to try to--that fix
the regulatory record through having the agency talk to small
businesses, find out what the unfunded mandates are on state
and local governments, and use sound and science--sound science
and factual information.
If Congress wants its laws implicated according to what you
believe you've legislated, it must ensure that the agency is
accountable to Congress, that the rulemaking process is
transparent, that it operates within integrity, and provides
all of the participants the same rights as they participate in
the federal rulemaking process.
Thank you.
[The prepared statement of Mr. Kovacs follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. Thank you, Mr. Kovacs.
Dr. Paulson.
TESTIMONY OF DR. JEROME A. PAULSON,
FAAP CHAIR, AMERICAN ACADEMY OF PEDIATRICS
COUNCIL ON ENVIRONMENTAL
HEALTH EXECUTIVE COMMITTEE
Dr. Paulson. Good morning, Chairman Smith, Ranking Member
Johnson and Committee members. Chairman Smith, thank you for
your kind introduction of me, and I will just add that for 30
to 35 years I also practiced----
Ms. Edwards. Mr. Chairman, is the mic on?
Dr. Paulson. I practiced and taught primary care
pediatrics, so I was directly involved in the day-to-day
pediatric care of children.
And so with the background that you described and my work
as a pediatrician that I mentioned, I'm going to comment today
on the child health benefits of the Clean Power Plan and the
EPA's proposed ozone rule.
We know very clearly that children are disproportionately
at risk from environmental pollutants. Children are not little
adults, and we cannot extrapolate from what we know about
adults and assume that that information applies to children,
particularly as it relates to respiratory illnesses. Children
breathe faster than adults, they have higher levels of physical
activity, and they spend more time outdoors. Their lungs are
still developing. Therefore, children have different outcomes
from exposures to ozone and other air pollutants than adults
do, and these effects on children last a lifetime. Problems
that develop in children manifest themselves in adulthood. The
work of EPA is essential to protecting children from pollutants
and ensuring that children have an optimal environment in which
to live, learn and play.
Reducing carbon emissions of fossil fuel power plants
represents a major step towards addressing a key component of
climate change in the United States. According to the World
Health Organization, over 80 percent of the current health
burden from the changing climate is on children less than five
years old, and that's children here in the United States as
well as globally. These burdens on children include injury and
death from natural disasters, increases in air pollution-
related illness, and more heat-related potentially fatal
illness.
Reducing carbon pollution will have an immediate impact on
child health by reducing emissions of other pollutants and the
resultant creation of harmful ozone. When fully implemented in
2030, EPA's proposed rule for existing power plants will result
in 6,600 fewer premature deaths, 150,000 fewer childhood asthma
attacks, and 180,000 fewer missed school days, 3,700 fewer
cases of bronchitis. This also means that when children are not
sick, their parents can go to work, keep their jobs and earn
money for the family.
Let me tell you about a phone call that I received from a
physician about a little girl with asthma. The family and the
physician were having difficulty keeping her asthma under
control in spite of adequate medical management. The astute
mother reported that her daughter's asthma got worse when the
smoke from the power plant that was located near her home
changed from white to black. We were able to determine that the
power plant usually burned natural gas but was approved to burn
coal under certain circumstances. We believe that this little
girl's asthma was exacerbated by the coal burning because of
the increase in particulate and other air pollutants associated
with that fuel.
It is also clear and compelling scientific evidence that
supports the need for a strong ozone standard of 60 parts per
billion or lower. High levels of ozone in the air including
levels above 60 parts per billion can lead to decreased lung
function in children, coughing, burning and shortness of breath
as well as inflammation and swelling of the airways. In 2025, a
60-part-per-billion standard could prevent 7,900 premature
deaths, 1.8 million child asthma attacks, and 1.9 million
missed school days.
I know that the distinguished members of this Committee
have given many speeches over the course of your careers, and I
am sure that all of you would be horrified, as I was, to look
out at a crowd that you were addressing to see a woman in the
audience sobbing but that was my experience during a luncheon
presentation talking about ozone as a cause of asthma and a
reason for exacerbation of asthma. This mom was blaming herself
for being a good mother and encouraging her son to be
physically active and involved in outdoor sports only to have
him develop asthma.
The EPA has a fundamental role in ensuring that the
environment in which children live, learn and play is safe and
healthy and allows children to enter adulthood free from
environmentally related health problems. The Clean Power Plan
and stronger ozone NAAQS are essential child health policies
that the AAP strongly supports.
Thank you.
[The prepared statement of Dr. Paulson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. Thank you, Dr. Paulson.
And Mr. Eisenberg.
TESTIMONY OF MR. ROSS EISENBERG,
VICE PRESIDENT, ENERGY AND RESOURCES POLICY,
NATIONAL ASSOCIATION OF MANUFACTURERS
Mr. Eisenberg. Good morning, Chairman Smith, Ranking Member
Johnson, members of the Committee. Thank you for the
opportunity to be here today to present the views of the
National Association of Manufacturers and our 14,000 members.
Manufacturers believe regulation is critical to the
protection of worker safety, public health, and our
environment. We believe in the mission of the EPA and we
support reasonable environmental regulation. However, we also
bear an unmistakably high burden of compliance with the
Agency's regulations. Manufacturers spend, on average, over
$19,000 per employee per year on regulatory compliance and over
$10,000 of this is for environmental regulations. The smaller
the manufacturer, though, the larger the burden. Manufacturers
with less than 50 employees spend over $34,000 per employee per
year and over $20,000 of this is due to environmental
regulations.
So when the EPA issues a new regulation with new costs and
new burdens, manufacturers have to pay these costs not op of
what we're already doing, the tens of thousands of dollars that
we've already assumed. So we're not starting from zero. In
fact, our plants are already equipped with the best available
pollution control technology. We maximize our efficiency and we
limit waste and we recycle. And so while we'll always strive
for improvement, in some cases we're really already pushing up
against or beyond what technology can deliver, and so we need--
what we need as manufacturers more than ever are smarter
regulations.
We just don't believe we're getting that from the EPA with
respect to the three regulations that we're here to talk about
today: ozone, the Cleaner Power Plan, and the ``waters of the
United States'' definition. In all three cases, the costs and
burdens placed on manufacturers as a result of these
regulations are very significant and could make us
significantly less competitive.
Manufacturers are committed to reducing ozone levels, and
we've been doing so for decades. We've been reducing the
emission that cause ozone by more than half since 1980.
However, the progress we've made, it also means that both the
low-hanging fruit and the high-hanging fruit are pretty much
gone and so the controls that are needed to reduce ozone levels
are already in place. In fact, with this rule, EPA can only
identify about 35 percent of the controls and technologies
needed to achieve this new 65-parts-per-billion standard. You
heard that right. A solid two-third of the controls that will
be needed to comply to this are called unknown controls. We
don't know what they are.
Economic analysis of this new standard shows that it would
be the most expensive regulation in history. Second place isn't
even close. It would cost about $140 billion per year, about
$1.7 trillion over the next 23 years, placing the equivalent of
1.4 million jobs in jeopardy each year and reducing annual
household income--consumption--I'm sorry--by an average of
about $830 per year. Very few low-cost control options exist
for this tightening of ozone standard, so if controls aren't
invented in time, what winds up happening is, manufacturers are
forced to consider scrapping equipment, scrapping existing
plants, replacing them, or just plain old shutting them down.
And then there's nonattainment for ozone, which is essentially
a synonym for no growth. There has to be a better way for this
than this, and really there is. The current standard is only
being implemented. It's going to drive ozone precursor
emissions, the emissions that cause ozone, down by another 36
percent over the next decade. We believe we should let that
standard work before moving the chains one more time.
On climate, we're committing to addressing climate change
through improved energy efficiency, greater sustainability and
reducing our greenhouse gas emissions. We've done that. We
reduced our emissions ten percent over the past decade, but our
competitiveness is threatened by the Clean Power Plan as it's
currently drafted. Independent analysis of this rule places
total compliance costs as high as about $366 billion through
2031. Forty-three states could experience double-digit
electricity prices. That's very difficult for us as we are
major, major energy users. And even worse, many sectors in my
membership, manufacturing, are due to get follow-on regulations
under the Act that will be modeled off of this one, meaning
we're going to be hit twice.
We believe EPA needs to fix this rule. We agree that
adoption of a strong and fair international climate agreement
should be a priority, but we also must be very careful not to
lock into place policies that will send production and
emissions overseas if the rest of the world doesn't play by
those same rules in Paris in December.
Finally, manufacturers are disappointed with the final
Waters of the United States regulation. We would welcome a
clear rule that resolves disagreement over scope of the Clean
Water Act. Instead, we ended up with a final regulation that
fails to do this. It fails to clear up the problems and may
have even created new ones. The regulation certainly expands
the scope of the Clean Water Act to areas that are not even
wet, and it fails to provide clear exclusions as to what
actually qualifies. We're going to face, manufacturers are
going to face increased uncertainty, permitting costs, and
supply-and consumer-chain disruptions. Ambiguities in the new
regulation will give rise to third-party lawsuits, even in
cases where EPA agrees with us and believes that it is not a
water of the United States.
I assure you, we do not enjoy having to have an adversarial
position to the EPA on these regulations. We prefer to work
with them as a partner toward a shared goal of protecting the
environment. However, we desperately need the EPA to choose a
different regulatory path.
Sadly, we are nearing the time where legislation may be our
only hope, and we ask this Committee for its help in that
pursuit.
Thank you.
[The prepared statement of Mr. Eisenberg follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. Thank you, Mr. Eisenberg, and I'll
recognize myself for questions, and Mr. Kerr, let me direct my
first question to you.
The EPA claims that under the Waters of the United States
final rule, it does not expand the scope of federal
jurisdiction. Give me a couple of quick examples as to why it
does expand jurisdiction.
Mr. Kerr. Sure. Under the SWANCC Supreme Court ruling, the
Supreme Court found that isolated wetlands are not under the
jurisdiction of the Clean Water Act, and if they're to be
regulated at all, they need to be regulated by the state. Those
types of isolated wetlands can now be regulated under the Clean
Water Act. Under the new rule, they can be regulated as an
adjacent water. So that's one type of situation where scope's
broadened.
Chairman Smith. By the way, I'm just curious. Have we seen
the word ``drizzle'' before, water that's accumulated as a
result of drizzle?
Mr. Kerr. Not to my knowledge.
Chairman Smith. Okay. That might be another example.
Mr. Kerr. Yeah, and actually I've got three or four others.
There has never been an adjacent feature regulated under the
Clean Water Act other than wetlands. The only adjacent feature
could be a wetland. Under the new rule, a pond can be
considered adjacent. Virtually any kind of other water of the
United States can be considered adjacent. That's a new
precedent and was not dictated by a court decision.
Ditches flowing into tributaries can now be regulated as a
jurisdictional water. I've got a lot of concern with that
because by definition, ditches connect into waters of the
United States so that they drain agriculture, roads,
stormwater, you know, a number of features. If they connect to
a traditionally navigable water or a tributary, the EPA is
saying they can regulate them now. That creates at a minimum a
lot of confusion.
Chairman Smith. And that's another expansion.
Mr. Kerr, I know you could go on and on and on. Let me see
if I can get to some other questions.
Mr. Kovacs, real quickly, you say that the modeling system
used by the EPA is biased. What's an example, and specifically
the way that it's biased?
Mr. Kovacs. Well, I mean, there's several. One is when we
did our own modeling on costs several years ago, we found that
the EPA used what they call a limited model where the only
thing they looked at was what are the impacts on job growth,
and that was very narrow in the sense that it asked how many
consultants are you going to have. So when they modeled the
mackerel, for example, it found that it created 8,000 jobs.
When we used whole-economy modeling, we found that it lost
240,000 jobs, and that's one of the huge debates that's going
on right now with the Science Advisory Board. They've been
instructed by Congress to determine whether or not EPA is
modeling's is incorrect.
Chairman Smith. Okay. Thank you, Mr. Kovacs.
Dr. Paulson, first of all, you mention in your testimony--I
just want to bring it out for everybody's information--that
since 1990, emissions of six common pollutants have dropped by
41 percent through 2008. I think that's good news.
You also mention the heartfelt case of a girl with asthma,
and whenever the smoke from the power plant located near her
home changed from white to black, when they went from burning
natural gas to coal, her asthma worsened. We've done some
research, and our research indicates that typically a coal-
fired plant produces white smoke, not black smoke, and I'll
show a couple photographs. Do you know where this plant was
located that you referred to?
Dr. Paulson. Yes, sir, I do.
Chairman Smith. What city or what area? You don't need to
give anybody's identity. I'm just curious where it's located.
Dr. Paulson. Washington, D.C.
Chairman Smith. Okay. And we'll have to check because my
information is that even when they're burning coal, the smoke
is white, not black, and that might be of interest. Anyway, I
just wanted to bring that out. I appreciate that.
My last question goes to Mr. Eisenberg, and this is, does
the EPA have the legal authority to implement the proposed
Clean Power Plan?
Mr. Eisenberg. Certainly that is an open question, I mean,
and I fear that if they finalize the rule that they proposed,
we're going to get some litigation on that. There --we and
others have posed a number of potential legal obstacles that
this thing could go through. You know, they have the--they
certainly have the authority to regulate greenhouse gases.
That's been settled by the Supreme Court. The issue is, can
they be using this statute the way they're using it? They've
certainly made a lot of interesting choices in terms of going--
--
Chairman Smith. Do you have a legal opinion yourself as
to----
Mr. Eisenberg. You know, it's going to be a complicated
case. I think, you know, certainly there are a lot of potential
flaws, legal flaws, in this language.
Chairman Smith. Okay. What's an example of one?
Mr. Eisenberg. So a very easy one is whether or not the
section 111 can be used in light of the fact that they're
already regulating power plants under section 112 for hazardous
air pollution, can you actually do that under section 111, and
if so, can you do that for everybody else. They didn't make an
independent endangerment finding for this one so they just
basically said well, cars cause this and so power plants must
too. There's a lot of stuff they did in there that I think is
going to be a real challenge.
Chairman Smith. Thank you, Mr. Eisenberg, and the
gentlewoman from Texas, the Ranking Member, Ms. Johnson, is
recognized for her questions.
Ms. Johnson of Texas. Thank you very much, Mr. Chairman.
Dr. Paulson, in your--in testimony of Mr. Kovacs, he
recommended EPA retain the current 2008 ozone standard of 75
parts per billion, in large part because EPA is just now
starting to implement the 2008 standard. Those who support
retaining the current standard say it is unfair for EPA to move
the goalpost by calling for a more stringent standard. As most
people know, I'm from Dallas, Texas, an area that is all too
familiar with poor air quality. Dallas County alone is home to
more than 60,000 children and over 130,000 adults with asthma
who are at risk of missing school, missing work, ending up in
the emergency room or hospital, and even dying prematurely on
days with dangerous ozone levels at government expense.
Unfortunately, the State of Texas is not helping to protect
my constituents nor anybody else's and has been intensely
opposed to a lower ozone standard. In fact, the chairman of the
Texas Commission on Environment Quality, Bryan Shaw, has stated
that there will be little to no public health benefit from
lowering the current standard. Was the current standard of 75
parts per billion sufficient to protect public health when it
was finalized in 2008 is one question, and the second question,
how has the body of scientific evidence changed since the last
time the EPA revised the ozone standard, and would it make
sense based on the science for EPA to retain the current
standard until the states have fully implemented, as some have
suggested?
Dr. Paulson. Ms. Johnson, if the states retain the current
standard until it's fully implemented, people are going to die
and people are going to be sick. We knew before the current
standard was set by EPA based on the science that was available
prior to that time that that standard was inadequate to protect
the health of human beings in the United States. We now have
additional scientific information, both from human
epidemiologic studies and other research that shows that a
level of 60 is where health protection starts.
Ms. Johnson of Texas. Thank you very much.
Are you likely aware that critics of the Clean Power Plan
and virtually any other EPA rule often claim that the economy
and the American consumer will suffer as a result of efforts to
make our environment cleaner and safer? This ``sky is falling''
attitude toward protecting the health of Americans runs counter
to reality. As the economy has tripled in size since the
adoption of the Clean Air Act in 1970, claims that regulations
kills jobs are equally misleading. As a matter of fact, I've
known it to create jobs. In fact, just last year, we heard from
the witnesses that wise environmental protection and robust
economic development can and should go hand in hand.
That being said, one cost is abundantly clear, and that is
the cost of American lives, if we do not enact regulations to
protect their public health.
Now, can you please expand upon the cost to public health
if we do not act and implement stronger emission regulations
and what are the costs to the taxpayers, especially medical
costs, if businesses are allowed to continue to pollute?
Dr. Paulson. Ms. Johnson, the issues around ozone in
particular and all of the rest of the air pollutants that come
under the Clean Power Plan, each and every one of them
adversely affects human health and therefore cost money, cost
money in terms of direct out-of-pocket costs for payment of
medical expenses or the government pays those expenses if it's
not direct out of pocket or business pays those expenses in
terms of insurance premiums. Businesses also pay an expense for
these health problems when their workers can't show up or show
up sick and can't do the work that they need to do. Businesses
also pay for these health problems when children are ill
because their parents need to stay home with the children, need
to take their children to a healthcare professional, need to
take their children to an emergency room, or need to sit by
their child's bedside in the hospital.
One of my colleagues, Dr. Leonardo Trasande from NYU
Medical School, and a colleague of his, Dr. Lu, concluded that
the best estimate of childhood asthma costs in 2008, and
recognized that they've only gone up since then, that could be
associated just with environmental factors--this is not the
total cost of asthma, this is the cost attributable to
environmental factors--was around $2.2 billion per year in the
United States with a range from about $728 million to $2.5
billion.
So by not protecting our people, there is an extensive
economic burden on businesses and on the country as a whole.
Ms. Johnson of Texas. Thank you very much. My time is
expired.
Chairman Smith. Thank you, Ms. Johnson.
And the gentleman from California, Mr. Rohrabacher, is
recognized.
Mr. Rohrabacher. Years ago, when I was in high school,
which seems, really, I guess it was in another century, I
remember when I was in Los Angeles when in high school, and we
were not permitted to go out and do strenuous exercises because
the pollution levels in Los Angeles were so high that perhaps
once or twice a week they called a pollution emergency. Today,
I think it happens once or twice a year, so there has been a
dramatic reduction in the air pollution, at least in southern
California, and I take it from the testimony that we've heard
that that's true throughout the rest of the country as well.
We have to attribute that to the fact that there has been
regulation that has been successful, and those of who have a
natural inclination against regulation need to be honest about
that, and the question is, is whether or not we have come to a
point or when we did come to that point where such regulation
actually does not clean the air but there are natural sources
of pollution when you have to want to maintain a certain
standard of living for people. If we're going to have
civilization, there will be-- manufacturing will take place. If
you do not have manufacturing, people will get sick for other
reasons other than just the air.
The question is for you, Dr. Paulson. Has there been a
decrease in the number of illnesses, air-pollution-related
illnesses that has been recorded in these last 10, 15 years as
the pollution level's gone down?
Dr. Paulson. It depends what pollutant you're looking at
and what particular health outcome you are looking at, but we
do know that the pollution levels have come down and we also
know that the current pollution levels are not healthy,
actually still----
Mr. Rohrabacher. Excuse me. You're not answering my
question, please. I'm asking you specifically, because the
pollution levels have gone down and now do we see as the
pollution level's gone down this decrease in the number of
diseases related to that pollution?
Dr. Paulson. There's been some leveling off, for example,
of people with asthma but there are----
Mr. Rohrabacher. So we have a leveling off and not--there's
been this dramatic decrease in the pollution but there's only
been a leveling off, so maybe we have reached a point that the
pollution level is more of a natural level that human beings
can relate to. Perhaps maybe the other witnesses----
Dr. Paulson. There----
Mr. Rohrabacher. Go right ahead.
Dr. Paulson. These levels of pollution are dangerous to
human beings, Mr. Rohrabacher. These levels of pollution are
produced by human beings and can be controlled by human beings.
Mr. Rohrabacher. Well, there are also, as we know,
natural--for example, we are called deniers over here if you
don't go along with the fact that CO2 is changing
our climate, but we know that 90 percent of the CO2
in the air comes from natural sources and not human sources,
and at some point you have to relate what level of whatever
we're talking about actually relates directly to people's
health, and do the other witnesses have any----
Dr. Paulson. Mr. Rohrabacher----
Mr. Rohrabacher. Listen, can I ask the other witnesses to
comment on that as well?
Mr. Kovacs. We did a study using EPA's own data just to
figure out that exact question. We asked in each of the studies
that the EPA was doing in terms of reducing pollution, whether
it be ozone or mercury or whatever, EPA--let's use mercury.
EPA--the entire utility MACT was mercury but only $6 million
out of $10 billion in EPA's claimed benefits came from mercury.
The rest came from particulate matter, and what's happened is,
we've taken particulate matter down to whether--where it's 30
percent below where EPA says it's safe and 20 percent below
where the World Health Organization says it's safe. We're still
reducing it, so we're spending billions of dollars to reduce
something that's already 30 percent below what they say is
safe.
Mr. Rohrabacher. So at some point where if you have a
problem and at some point you come to a position where it is no
longer cost-effective to do that, to have that activity, and
while we have to admit that from the time when I was in high
school until now when the pollution levels are lower, that
maybe that was very cost-effective and many of the things that
the good doctor is telling us about has resulted from that but
maybe we now have reached a point here it's so costly that it's
counterproductive, and on our side of the aisle at least, we
believe that entrepreneurs and manufacturers, when you actually
put them in contest with the bureaucracy, they usually lose,
and bureaucracy--where manufacturers can give us good products
to use, usually bureaucracy is able to turn pure energy into
solid waste, and that's about all.
Chairman Smith. Thank you, Mr. Rohrabacher.
Mr. Rohrabacher. Thank you, Mr. Chairman.
Chairman Smith. The gentlewoman from Maryland, Ms. Edwards,
is recognized.
Ms. Edwards. Thank you very much, Mr. Chairman, and thank
you to the witnesses this morning.
I just want to make sure that we really understand, because
I think sometimes there are quite overstatements in these
hearings, and so I just want to clarify from the EPA that the
Clean Water Rule does not regulate most ditches. In fact, the
text of the rule says, and I quote, ``The following are not
waters of the United States. The following ditches. A. Ditches
with ephemeral flow that are not relocated tributary or
excavated in a tributary. B. Ditches with intermittent flow
that are not relocated tributary excavated in a tributary or
drain wetlands. And C. Ditches that do not flow either directly
or through another water into a traditional navigable water,
interstate water, or territorial seas.''
And so let's not overstate the regulation of so-called
ditches. I've heard that so many times and it is completely
inaccurate.
Furthermore, the rule doesn't protect any types of waters
that have not historically been covered by the Clean Water Act.
Any new requirements for agriculture, in fact, all of the
agriculture that was exempt before is exempt now under the
rule, interfere with or change property rights, regulate most
ditches, as I said, change policy on irrigation or water
transfers, address land use, cover erosional features such as
gullies, rills, and non-wetlands swales, and include
groundwater, shallow subsurface flow, and tidal drains. Those
are things that the rule does not do, and so we should be
careful about those overstatements.
Mr. Chairman, I know also a number of my colleagues on the
other side also deny that climate change is happening or at
least that humans are causing it. We've already heard that this
morning and have adamantly opposed the Obama Administration's
efforts to lower the nation's carbon emissions. Fortunately,
according to a recent poll by the Yale Project on Climate
Change Communication, the majority of Republican voters
actually support climate action to reduce carbon pollution.
Additionally, a majority of moderate Republicans support
setting limits on carbon emissions from coal-fired power
plants. This poll also shows that not all Republican voters
oppose EPA's Clean Power Plan.
And so Mr. Chairman, I'd ask unanimous consent to enter
these two charts from the Yale Project into the record.
Chairman Smith. Without objection, that'll be made a part
of the record.
[The information appears in Appendix II]
Ms. Edwards. Thank you.
I also want to enter into the record a survey by Hart
Research Associates that actually says that voters in fact
support the Clean Water Rule and not just that, but an
overwhelming number of voters trust the EPA and the U.S. Army
Corps of Engineers to do that and not Congress. I think that we
should listen to the public.
Chairman Smith. Without objection--and by the way, I'm
looking at the poll that you're referring to. The wonder is
that the answers were not----
Ms. Edwards. Mr. Chairman, that's----
Chairman Smith. --100 percent, given the way the questions
were worded.
Ms. Edwards. That's my time----
Chairman Smith. Who's opposed to clean water?
Ms. Edwards. Are you entering that into the record?
Chairman Smith. It will be made----
[The information appears in Appendix II]
Ms. Edwards. And I'd ask for the remainder of my time to be
added back to the clock.
Chairman Smith. I'll give you ten more seconds.
Ms. Edwards. Thank you.
Mr. Chairman, I'd also like to add into the record, as
we've seen this morning again, that our industry
representatives here make the argument that the cost of
complying with regulations will ``kill the economy and jobs.''
But this argument has been proven false over and over again.
Again, I have a facts sheet from the Pew Charitable Trust
describing industry's long history of overestimating the cost
of regulations. According to Pew, compliance costs have been
less and benefits greater than industry predictions and
regulation typically poses little challenge to economic
competitiveness. The fact sheet goes on to outline a number of
very specific examples of this pattern of the overexaggeration
from acid rain and airbags to seat belts and catalytic
converters.
For example, chemical production plants predicted that
controlling benzene emissions would cost $350,000 per plant.
But the chemical plants ended up actually developing a process
that substituted other chemicals for benzene and virtually
eliminated control costs. In this instance, as in a number of
instances, regulation actually drove the kind of innovation,
Mr. Chairman, that you pointed to.
I'd ask unanimous consent to enter these facts sheets from
the Pew Charitable Trust into the record.
Chairman Smith. Without objection.
[The information appears in Appendix II]
Ms. Edwards. Thank you, Mr. Chairman.
I just want to finish by saying we've had so many of these
hearings about regulation, and I would suggest that we'd allow
the rule to go into effect and we don't have any predictions at
all about what the outcome will be if they are challenged in
court, but after--especially with the Clean Water Rule. After
thousands and thousands of comments that have been reviewed,
changes that were made from the rule on its introduction to the
final proposed rule, hundreds of witnesses testifying, it's
time that we move after a decade and a half of twiddling around
and not knowing what to do and what the rules are to a point
where we have some certainty that industry has certainty, that
the public has certainty and that all of us get the clean air
and the clean water that we deserve.
Thank you, and I yield.
Chairman Smith. Thank you, Ms. Edwards.
The gentleman from California, Mr. Knight, is recognized
for questions.
Mr. Knight. Thank you, Mr. Chair.
I would go on a line of questioning of kind of what we've
done in California. I think that my statement would be that
California has probably gone about this as stringent as any
state in the union as far as our clean air, clean water, clean
energy, clean everything that we have done, not just of course
on EPA standards because everyone has to go along with that but
what the legislature has done in California to go about this.
So I guess my questions would be, and we can start with Mr.
Kerr, that we have seen a loss in the last ten years of about
80,000 manufacturing jobs in California due in part to what we
have done in California, not just by our regulations but what
we have mandated on business and how they can interact with the
air and the water in California. Do you think that--and I think
Mr. Rohrabacher was going down the right line of questioning.
Do you think we have hit a line in the road where if we go too
far, then we're not going to just continue to hemorrhage jobs
but America and many parts of America will be so uncompetitive
that businesses' only choice will be to look elsewhere.
Mr. Kerr. Thank you, Congressman. With regard to the
question, I have to say I'm not an air pollution consultant so
I'll just yield my time to the others here who could speak to
that.
Mr. Kovacs. Congressman, I think you're going to be
surprised with my answer. I think we don't know, and the reason
why I say that is part of--when Congress first legislated these
acts in the 1970s, you asked for very specific information.
There was a debate on the Floor that was really fascinating,
and one of the members--one of the Democrats got up and said,
you know, I'm tired of this issue being fought in this way--
this is the end of the world or this is going to protect the
world. They specifically said we know we're going to impact
jobs, we know that, but Congress has a major role and we need
information to come back to us from the Agency. You never got
that.
And in the 1980s and the 1990s, Congress again said we're
going to pass the Information Quality Act, and that said is,
the Agency has to take information from the public and the
public has a right to challenge the Agency's information. The
agencies, not just EPA, have refused to do that. You've asked
for input under the unfunded mandates and the impact on states.
States implement 92 percent of all the environmental laws, and
EPA does not look at unfunded mandates. It generally dismisses
and says there's no impact on the states. Even for ozone, EPA
says there's no impact on the states. There's no unfunded
mandate for a rule that they say is going to cost approximately
$90 billion a year.
So you don't know, and one of the things that's really
needed in this issue is, we fought over the issue for too long.
We need the information on data quality to work. We need the
information on 321(a) in the Clean Air Act to tell you how it's
impacted jobs because regulations aren't just something that
happens to the whole country. Regulations are something that
happens to an industry. So if an industry is hit and it's in
Wisconsin or Idaho or wherever, that industry and that
community's affected. There may be jobs created elsewhere but
you still have an industry and a community that's been hurt,
and you don't have that information and EPA has never given it
to you.
Mr. Knight. Thank you very much.
Mr. Eisenberg. So I'll try to give you a very simple answer
specifically for manufacturing. You're absolutely right in
terms of manufacturers. We use about a third of the energy in
this country. We are extremely energy-intensive. For some
manufacturers, it is our single largest cost. There is a reason
why a lot of the new manufacturing that is coming online is
going to states where energy is cheap. If you are a state that
does not have cheap energy, that is a very big difference maker
for a lot of folks in industries that are highly energy
intensive.
That is not the driver; it is a driver of why manufacturers
go into places that may not be California, which absolutely has
extraordinarily high energy costs.
Dr. Paulson. Mr. Knight, we know very well that air
pollution is not confined by political borders. We know this
very well in the United States, but it is true internationally
as well, and we can only do what we can do in the United States
to protect our own citizens, and Congress gave the
Environmental Protection Agency a responsibility to protect the
health of human beings in our country, and that is what they
are attempting to do by lowering these pollutant limits.
Mr. Knight. Absolutely, Dr. Paulson, and I agree. I just
think that we possibly--and I wouldn't say ``possibly.'' I
would say we have achieved a level that is very healthy in this
country, and going further, we will be hurting this country and
its ability to economically be a factor.
And I will say what we have done in California has worked
very well. We have six of the dirtiest ten cities in this
country.
Thank you, Mr. Chair.
Chairman Smith. Thank you, Mr. Knight.
The gentlewoman from Oregon, Ms. Bonamici, is recognized
for questions.
Ms. Bonamici. Thank you very much, Mr. Chairman, and I'm
going to follow up on the discussion we were just having, and
Mr. Chairman, you mentioned this in your opening statement too
about diminishing the competitiveness of U.S. businesses, and
we hear these claims that the Clean Power Plan or other
environmental laws are going to kill jobs, hurt the economy.
There's a suggestion that our businesses will go overseas.
I just read this morning that Ikea just pledged a billion
euros, which is $1.13 billion, to help slow climate change
through renewable energy and steps to help poor nations cope
with climate change. They said this is good for customers, good
for the climate, and good for their company. So they found that
customers actually value environmental responsibility, and I
suggest that we look at that and what our customers value.
And I also want to talk about how the numbers speak for
themselves. The Union of Concerned Scientists just released an
analysis that shows that most states are already making
significant progress toward cutting carbon emissions from power
plants, and according to that analysis, 31 states including my
State of Oregon are already more than halfway toward meeting
the 2020 benchmarks set out by the EPA under the Clean Power
Plan. All but four states have already made decisions that will
help cut their power plant emissions. Fourteen states including
California, Kentucky, Ohio and New York are already ahead of
the emission rate reduction trajectory because of current
carbon-cutting decisions and actions.
I find this very encouraging and again highlights how the
environmental regulations can bring about positive results. Mr.
Chairman, I ask unanimous consent to enter this analysis into
the record.
Chairman Smith. Without objection.
[The information appears in Appendix II]
Ms. Bonamici. Thank you.
And Mr. Eisenberg, I was glad to hear you say that the
National Association of Manufacturers believes in the mission
of the EPA. You say that plants have the best available
pollution control technologies, and as we were just discussing,
history shows that regulation drives innovation. Without the
regulation, those who are working on new technologies don't
have a market, but with the regulation, they do, and we have
found that new technologies are developed to meet the needs of
regulation.
So I want to ask, Dr. Paulson, you know, many are arguing
that it's not just worth it, that costs are too high, and as
you've noted, there's evidence showing that on balance, jobs
are created, the economy expands following the passage of major
environmental reforms. For example, in a report to Congress on
the costs and benefits of federal regulations, OMB estimated
that major rules promulgated by the EPA in the decade between
2003 and 2013 had benefits between $165 billion to $850 billion
compared to costs of $38 to $46 billion. That is a pretty
significant return on investment.
So Dr. Paulson, alternatively, we've talked about the costs
of ignoring our changing climate and the public health risks
related to increases in global temperatures, and I note that
the death toll in India is now up to 2,500 people. Tragic over
there.
Climate change also has the potential to exacerbate
existing health conditions as you've discussed such as asthma.
Now, we've had hearings in this Committee before where we've
talked about how the EPA is not allowed to consider the costs
when they, for example, set the standard under the Clean Air
Act, the ozone standard. That's sort of compared to the idea
that you're going to make a medical diagnosis depending on how
much the treatment's going to cost.
So can you comment on the importance of separating the
costs associated with attaining an ozone standard from the
assessment of what level is appropriate to protect public
health?
Dr. Paulson. Health needs to be a priority, and as a
physician, I am sworn and I took an oath long ago and still
very much believe that oath I took to protect the health of the
individuals that I work with, and for me, that's the kids but
it's also their families. I cannot ethically take the
consideration of cost into account. I certainly work with the
families to try and make sure that they have or can access the
financial resources for whatever it is that I or my colleagues
may be recommending, but my responsibility is to do what is in
the best interest of children.
Ms. Bonamici. Thank you. I'm going to try to get one more
quick question in to you, Dr. Paulson.
There was a study by Syracuse and Harvard University about
the major co-pollutants that could be reduced. So can you talk
about some of the health co-benefits that are likely to result
from these kinds of carbon regulations?
Dr. Paulson. Yes. I'm a pediatrician, but let me mention
something particular to adults, and that relates to particulate
pollution. We know that when particle levels go up in the air,
the next day more people are going to be admitted to the
hospital with heart attack and strokes and die from those heart
attacks and strokes as a result of that exposure to the
particulates. So that's just one example.
Another example is that we know that children grow up in
areas of the country that have higher air pollution when they
are finished growing, 18, 20, their lungs are smaller than kids
who grow up in a less polluted area, and that raises the
concern of, are these kids then set up for what we think of as
adult-onset pulmonary disease but actually it goes back to the
pollution that they were exposed to as children.
Ms. Bonamici. Thank you very much.
I see my time is expired. I yield back. Thank you, Mr.
Chairman.
Chairman Smith. Thank you, Ms. Bonamici.
And I'd like unanimous consent to put in the record a New
York Times article just a few days ago that reveals that the
EPA solicited positive comments from outside organizations,
perhaps in violation of lobbying laws. Without objection.
[The information appears Appendix II]
Chairman Smith. And the gentleman from Texas, Mr. Babin, is
recognized.
Mr. Babin. Yes, sir. Thank you very much, Mr. Chairman, and
thank you to all you witnesses for being here.
The EPA Administrator, Ms. McCarthy, Gina McCarthy, wrote
an op-ed recently saying that the Agency's air standards
attract new business, new investment and new jobs. I don't
think that Administrator McCarthy is living in the same world
as the rest of us.
I represent the 36th District in the State of Texas, and we
have one of the largest numbers of petrochemical plants and
refineries in the country. Most of my district is not in
attainment with these new regulations. I will also add that
neither is Yellowstone National Park in attainment with these
new regulations.
There is no concrete evidence to support the lower standard
for ozone that the EPA is calling for, not to mention the cost
that is associated with it, given the strenuous economic times.
I would now ask for a slid be placed on the screen to describe
my district, the State of Texas, District 36. We have the
largest manufacturing industry in the State of Texas in the
chemical and refining industry. We directly employ or
indirectly employ over 10,000 people down there in this portion
of my district, and we pay $934 million in wages in this
district with an average wage of nearly $100,000.
These proposed new rules promise to be the most expensive
regulations in the history of the United States, likely costing
us thousands of jobs and prolonging a recession. This is
bureaucratic overreach in the extreme.
I would ask Mr. Kovacs and Mr. Eisenberg whether this is
worth putting all of this at risk with these new regulations.
Mr. Kovacs?
Mr. Kovacs. Well, I think in terms of ozone, we've really
had probably 30 years of what you're describing. I mean, look,
going back to the early 1980s, many sectors of the economy--
steel, foundries, carpets, furniture--you pick it, because
nonattainment areas could not get the credits to stay
operating, were forced either, one, to other areas of the
country or two, they were forced overseas. And so that's been
going on for quite some time.
Again, I come back to the fact that these are issues that
really should be resolved, and let me just give you one example
as to how hard it is to resolve it. We've talked a lot today
about science and transparency, and we've challenged EPA for
years, but in 1999, when the Pope and Daugherty study was first
issued, I wrote a FOIA to EPA and was denied everything. So all
the scientific basis for a lot of what they're talking about in
PM and ozone has been denied to the public, and the only people
who can have access to it are EPA and their researchers.
Chairman Smith issued a subpoena last year and couldn't get the
information.
One of the things that we need to have in this country is
complete and total transparency. The Agency needs to be able to
put its models, its science in the record. It needs to
implement the environmental--or the Informational Quality Act.
They need to accept information from the public and they need
to sit down and talk about it. These--if the data's there, then
they shouldn't be afraid of it. If it's not there then they
should be afraid of it.
Mr. Babin. Which is what the Secret Science Act is all
about we're proposing.
Mr. Eisenberg.
Mr. Eisenberg. Thank you. To your question of whether or
not we believe that this is the right thing for manufacturing,
no, we don't need them to change the ozone standard if you want
to have a manufacturing sector. I mean, that is the simple and
straight answer, and this is not about health for us. We are
getting the benefits of continued reductions between the
existing ozone standard and the three dozen other regulations
that reduce NOX emissions. We're going to be reducing ozone
precursors by 36 percent over the next decade, so we're going
to get there. We're going to actually be doing what we need to
do. The only difference between that and getting--and moving
the chains now is that you impose a significant amount of
struggle for manufacturers to try to expand or build things to
get basically the same result.
So we're going to get there anyway. We can just get there
without all of the pain that we would have to face if you don't
move the chains on us.
Mr. Babin. Thank you very much, and I yield back my time,
Mr. Chairman. Thank you.
Chairman Smith. Thank you, Mr. Beyer--thank you, Mr. Babin.
Mr. Beyer, the gentleman from Virginia, is recognized.
Mr. Beyer. Thank you, Mr. Chairman.
Mr. Chairman, Mr. Eisenberg and Mr. Kovacs both cited a
study prepared on behalf of NAM in their written testimonies,
and this study estimates the compliance costs associated with
an ozone standard of 65 parts per billion.
I have an article from Bloomberg News that discusses NAM's
study and a number of groups criticize the study and its
methodology, saying that the study doesn't include an estimate
of the anticipated benefits of the 65 standard, it
overestimates compliance costs, and that it makes ``unrealistic
assumptions.'' For example, the use of the Cash for Clunkers
program, with which I'm very familiar, is used as the basis for
estimating the cost of unknown pollution controls. This is
described as ``insane and unmoored from economic reality.''
Also, it's important to understand well what the new
standards might cost and the savings that might generate.
Please allow me to point out that the 2001 Supreme Court, the
same court that put George W. Bush in the White House in Bush
v. Gore ruled that the Clean Air Act prohibits the EPA from
considering the cost of compliance with setting National
Ambient Air Quality Standards.
So Mr. Chairman, I ask unanimous consent to have this
article entered into the record.
Chairman Smith. Without objection.
[The information appears Appendix II]
Mr. Beyer. Thank you.
Dr. Paulson, thank you for being here. The Committee
received testimony from Dr. Mary Rice on the health impacts of
ozone, and she indicated that the research has only grown
stronger since the last time the EPA considered revising the
current standard, and one area she highlighted was the new
evidence between higher ozone levels and increased mortality.
I grew up here in Washington, DC. There will be a number of
times this coming summer when every TV station will be telling
us all to stay inside because of high ozone levels. As I
understand it, the Integrated Science Assessment for Ozone
states that ``The current body of evidence indicates there's a
likely causal relationship between short-term exposures to
ozone and total mortality.'' Can you talk about this evidence?
Dr. Paulson. Yes. Ozone causes inflammation, irritation,
particularly in the lungs. I think an analogy that everybody I
hope can understand is sunburn. Sunburn causes inflammation and
irritation of the skin, and likewise, ozone does that but it
does that in the breathing tubes in the lungs, and acutely
that--if it's a one-time thing, if it's a few-times thing, that
heals up and goes away just like a sunburn heals up and goes
away. But on a chronic basis, that leads to permanent changes
in the breathing tubes in the lung so that they no longer
function the way they need to function to remove other
pollutants from the lung. They become scarred. They don't
transfer oxygen and carbon dioxide the way they should. So
overall, pulmonary function declines and that impacts on a
whole range of adult health issues.
So I think that we need to bring the ozone level down.
Levels below 60 are much safer than levels above 60, and we
should have a standard of 60 in the United States.
Mr. Beyer. Thank you, Dr. Paulson, very much.
Mr. Kovacs, thank you for being here representing the
Chamber. I was President of the Falls Church Chamber, on the
board of Fairfax Chamber. My wife used to work for you guys at
the U.S. Chamber.
But I'm having trouble reconciling a number of facts. On
the one hand, EPA's promulgated regulations in clean air, clean
water, greenhouse gases, and all allegedly are job killers and
profit killers. On the other hand, corporate profits are at an
all-time high, the Dow is over 18,000 last night, 62 straight
months of job creation, the fastest and best recovery of any
Western economy since the Great Recession. In fact, Governor
McCall from Virginia has now created private-sector jobs, not
him but our economy in Virginia has created more private-sector
jobs in these first 17 months than any government in Virginia
history, any governor.
In my business when we receive a new regulation, we adapt
and we figure out the most effective way to implement and
respond to the new rule and then we figure out how to make
money off of it. To Mr. Knight, who I guess is gone, my
California dealer friends are the most profitable dealers in
the country despite their regulations. I would love to be a
California car dealer.
My question is, don't you give too little credit to the
business community, to their imagination, to their operational
excellence? Can't we have business and job success and better
health at the same time?
Mr. Kovacs. Well, thank you for the question. First of all,
I give tremendous credit to the business community. They are
extraordinarily innovative, and I am absolutely thrilled that
your wife worked with the Chamber and you were with the Falls
Church Chamber.
Now, having said that, we at the Chamber, we don't really--
when we talk about job impact and regulatory impact, we talk
about a system that the United States constantly creates jobs
and we're constantly creating more jobs and hope we will even
do better in the future, but when a regulation comes out, it
actually affects specific industries. When ozone comes out, for
example, it's going to--initially we have the history of it
coming out and literally knocking out, let's just say
California or anyplace else--chemical manufacturing in certain
areas, oil manufacturing, paint and coatings. And what happens
is, those people truly are out of jobs, and when you look at
the fact that if you're over 55 and you're out of a job, your
chances are only about 25 percent of having a job the rest of
your life, and what we're trying to impress upon them is, yes,
it's easy to say wow, we have a lot of great technology
companies and they're creating a lot of jobs. What's happening
is, the regulations are putting people and communities out of
business, and that should be just as much of a concern because
the health impacts when a community goes out of business is
drug abuse, heart attacks, hypertension, and all we're trying
to say is, let's get the facts on the table and let's have an
honest discussion. Let's put the health-related effects out,
let's put the job-related effects out. This should not be a
problem. This should be a problem that Congress can solve. This
shouldn't be a problem we fight over. That's been my testimony.
Chairman Smith. Thank you, Mr. Beyer, and the gentleman
from Ohio, Mr. Johnson, is recognized.
Mr. Johnson of Ohio. Thank you, Mr. Chairman.
You know, the discussion that we're having today about the
EPA's overreach, it's a continuing dialog, and it's disturbing.
I went to Europe just a few weeks ago and talked with many
of our friends and allies in Europe about energy policy, and I
learned something there that I wasn't expecting to learn. Over
the last 20 years, they have been advancing beyond the United
States in shutting down coal-fired power and investing in
renewable energies and those kinds of things, reducing the
amount of coal that they had in their energy portfolio. When we
talked energy policy with many of our friends there, we learned
that a lot of those countries, some of those countries are
increasing their mix of coal-fired power in their energy
profiles, and when we asked them why, they said our ratepayers
are simply unwilling to bear the burden of the high cost of
providing energy to their homes and to their businesses. Europe
has learned this lesson, that coal-fired power is still the
most reliable, affordable energy on the planet.
Do we need to keep our air clean? Absolutely we do. Do we
need to keep our water clean? Absolutely we do. Dr. Paulson,
you made some impassioned comments about the health
implications. Not everybody, though, Dr. Paulson, agrees with
some of the statistics that you said. For example, today the
average life expectancy in the United States is 80 years, one
of the highest in the world. There's a New York Times article
that came out October 8, 2014, that said a child born in
America today will live longer than at any other time in
history, and these are scientists saying this. That report came
from the Centers for Disease Control.
In the USA Today on April 9, 2015, it cites an EPA report
says the EPA reports that are our air quality has substantially
improved, aggregate emissions of common pollutants have
decreased 62 percent between 1980 and 2015. It goes on to say
it is unlikely that cleaner air is causing an increase in
asthma.
So, you know, what I have to wrestle with, and I think what
the American people are wrestling with is, when is enough
enough? When does it become--when does the scale tip towards
irresponsibility to continue trying to cripple the American
economy and eliminate opportunities for millions of Americans
just to move the CO2 emission needle a smidgen?
Folks, I submit that we have reached that breaking point.
We've passed that breaking point. There are serious legal
questions to the EPA's jurisdiction and their legal basis for
their Clean Power Plan, and I think it's something that's got
to be seriously considered by this body and by the American
people.
Let me get to some specific questions. Mr. Kovacs and Mr.
Eisenberg, by the year 2030, the EPA believes their proposed
Clean Power Plan will allow the United States to reduce carbon
emissions from the power sector by 30 percent or below the 2005
levels, a roughly 17 percent cut from 2013 levels.
To achieve these reductions, EPA calculated a specific
emissions rate for each state by totaling the CO2
emissions produced by each State's electricity-generating units
and dividing it from the total amount of electricity generated
by the EGUs. Then the EPA proposed emissions reduction targets
based on the carbon intensity of each state's electricity
sector.
My question to you gentlemen, do you believe the proposed
performance standards are achievable? Mr. Kovacs?
Mr. Kovacs. I think the easiest way to address your
question is to start off with one of your conclusions where
``enough is enough,'' and I think at that point in time, I
don't think you can get to dealing with the present regulatory
system without a change in the Administrative Procedure Act,
and Chairman Smith is very familiar with this. But right now
you can't get the kind of data into the system that you need.
You can't get the Agency to participate and you can't get the
Agency to look and talk to the public the way it needs to.
Until you can get the kind of early-on input where people say
here's what we think and the Agency says here's what we have,
and you begin the discussion 90 days before rule, and then you
begin to have the Information Quality Act put into the system
where people can actually say oh, this is the data.
You have--Congress has to find some way to get the process
to work. There is nothing with the law that court decisions
have come down on deference and with the way the agencies
ignore Congress. Congress has to make a fundamental change in
how rules are made.
And the last point, because I don't want to just
filibuster, but the last point is, there are 4,000 rules coming
out every year. Three thousand seven hundred really work.
Ninety-five percent of the system works. It's -- we're talking
two or three or four major rules a year, and most of those
rules come out of EPA. So when you look at the whole regulatory
system, you don't need to throw it all away, but for those
major rules that are over a billion dollars that fundamentally
change society, you have to have a new way of approaching it.
Mr. Johnson of Ohio. My time's expired, but Mr. Eisenberg,
would you want to respond to that?
Mr. Eisenberg. Sure. I mean, certainly in the case of
ozone, these rules are not achievable, and it's actually a good
opportunity to explain what our studies had. Our study actually
had the same methodology as EPA's study. I mean, it was exactly
the same. As far as known controls, we used the same stuff,
same numbers because we believed them. Where we differ with EPA
is on the 65 percent of controls that you need to comply that
are unknown controls. You don't have to--it's not--you still
have to do it. We just had to figure out how to do it at that
point. I would love to be able to tell you we can innovate, and
maybe we will, and if we don't----
Chairman Smith. Mr. Eisenberg, thank you, and Mr. Johnson
as well.
The gentleman from New York, Mr. Tonko, is recognized.
Mr. Tonko. Thank you, Mr. Chair, and thank you to our
witnesses.
Mr. Chair, in his testimony, Mr. Eisenberg cites a study, a
study released by the National Association of Manufacturers
last September, I believe. It's titled ``The Cost of Federal
Regulation to the United States Economy, Manufacturing and
Small Business.'' According to the study, regulations cost the
economy $2 trillion in 2012. Now, fortunately, a review of that
study was done. The results of that study indicate clearly that
that number is not accurate and that number is based on a
flawed analysis.
I have here in front of me a review of the National
Association of Manufacturers study by Professor Kolstad from
Stanford University. Professor Kolstad in this study was asked
to grade it and gave it a C minus. In his review of the study,
he states that the--and I quote--``study reads as an advocacy
document. The authors focus only on the costs of regulation,
ignoring the benefits. The authors also don't follow the
standard in academic practice of discussing uncertainties in
their analyses and their results are highly uncertain. All of
these factors make it difficult to determine the quality of the
responses and lead to the conclusions that the results are
unreliable.''
Mr. chair, I ask that--by unanimous consent that the review
of the National Association of Manufacturers' study be entered
into the record.
Chairman Smith. Without objection.
[The information appears Appendix II]
Mr. Tonko. Dr. Paulson, as you are well aware, beyond the
economic costs associated with climate change, there are very
serious public health risks related to increases in the global
temperature, for example, longer heat waves, changes in water
and air quality, and foodborne and insectborne disease. Climate
change also has the potential to exacerbate existing health
conditions such as asthma and adversely impact vulnerable
populations like children that you serve and the elderly.
What kinds of ongoing health risks are expected if the
current climate trends continue, and do these risks, in your
opinion, vary by region of our country?
Dr. Paulson. Mr. Tonko, yes, they do vary by region. We are
already seeing significant impacts in terms of injuries and
deaths among native populations in Alaska because of changes in
the ice and other factors there. We will and are seeing in the
rest of the country--we will see more problems with asthma, as
you have mentioned. We have seen over the last 5 to ten years a
change in the range, the number of counties and states that--
where Lyme disease is a problem and as the climate continues to
change, we will see continued changes in that disease and other
diseases such as we may begin to see indigenous malaria here in
the United States. We will start to have problems from sea-
level rise. We are--I'm a resident of Virginia and I live in
Mr. Beyer's district, so we don't quite see that so much in
Alexandria but certainly in the Norfolk region, the Hampton
Roads region. We are seeing that, and that will continue and
impact on other parts of the country with sea-level rise. We
lose quality of water for agriculture and for drinking. So
there's going to be a vast array of impacts, it will vary by
part of the country, and it will disproportionately--and these
impacts will disproportionately fall on children and other
vulnerable populations.
Mr. Tonko. Right, and we've also seen some of the
proposals, the expected impacts on coastal areas of New York
State.
How can implementing the Clean Power Plan help states
address these public health impacts of climate change?
Dr. Paulson. First and foremost, all reductions in CO2
production will slow the rate of temperature change associated
with excess CO2, and if we can get CO2
levels down in the long run, while some of these issues will
continue to occur for a while, we can stop the progress of
climate change in the long run.
I think that again in the long run, we need to be very
concerned about food availability and quality of food that's
going to be impacted from higher temperatures. People are
literally--and we're seeing this unfortunately now in India,
people are literally not going to be able to go out and plant
and harvest when the temperatures are extremely high. The
plants will not grow and produce the bountiful resources that
we require and derive from them. The quality of the food may be
decreased. So there are a lot of impacts that we're going to
have to deal with.
Mr. Tonko. I thank you, and with that, Mr. Chair, I yield
back.
Chairman Smith. Thank you, Mr. Tonko, and the gentleman
from Texas, Mr. Neugebauer, is recognized--oh, I'm sorry. I
skipped over Mr. Loudermilk from Georgia.
Mr. Loudermilk. Thank you, Mr. Chairman.
One of the issues that we run into I've found out in my
brief time here in Congress is getting down to the true facts,
and part of getting the true facts in science is that getting
away from presenting facts that justify an end but making your
end justified off the facts that are before you.
I live ten miles from one of the largest coal-fired plants
in the nation, and Mr. Chairman, to your point earlier, this
plant, you really can't see the smoke when it comes out, but
what comes out is white but it's steam that's used to cool
that.
But Dr. Paulson, you brought up something that was
concerning to me because I live ten miles from one of the
largest coal-fired plants in the nation. My one-year-old
granddaughter lives about 11 miles from it. And you brought up
in your statement, you said that outdoor air pollution is
linked to respiratory problems in children including decreased
lung function, coughing, wheezing, more frequent respiratory
illnesses and so on, and that is true. A quick check--you are
absolutely right. It is linked to air pollution. But Dr.
Paulson, can you tell me what is the greatest contributing
factor to asthma worldwide according to the World Health
Organization?
Dr. Paulson. I don't know exactly what the World Health
Organization has said is the greatest contributing factor.
Genetics is certainly an issue. Smoking is clearly issue.
That's another form of----
Mr. Loudermilk. Do you know where air pollution ranks?
Dr. Paulson. No, sir, I don't.
Mr. Loudermilk. Last. The greatest contributor to asthma--
and I was surprised to find out that asthma is one of the top
causes of deaths in children worldwide. I was very shocked. The
top seven contributors are all related to poor sanitary
conditions in the home which are linked to poverty. It is
greatest in the most impoverished nations in the world. Number
seven is outdoor allergens, which if somebody could do
something about pollen in Georgia, I'd really appreciate it,
but the only thing you can do is cut down trees, and we've been
stopped from doing that as well. Tobacco smoke is number eight.
Number nine is chemical irritants in the workplace, which again
goes back to industrialized nations that don't have the
regulations that we have in place. Number ten and last is air
pollution.
I live, as I said, ten miles from the largest coal-fired
plant in the nation, but it happens to be the cleanest, one of
the cleanest coal-fired plants in the nation. Georgia Power,
who runs that plant, has spent twice as much money in cleaning
up the emissions from that plant as it cost to build the plant
when it was first constructed.
But a few years ago, because of this Administration's
regulations, Georgia Power has to shut down three coal-fired
plants, which cost 700 jobs. Now, I don't have anything to
enter into the record, Mr. Chairman, other than what I've seen
with my own eyes. If you've ever gone into an area, especially
in our part of Georgia, to where a plant has shut down and a
lot of cases it's because they couldn't afford to operate
because of the regulatory environment in this nation, you go
into those areas where those workers, which are usually factory
workers who are skilled in that particular job, have no other
job to go to. When you go in those towns, you start seeing
these type of issues. You see poor sanitary conditions because
they're unemployed or they're underemployed or they have no job
at all. They're doing what they can to scrape by, and we start
seeing an increase in poverty.
So my question is, are we throwing out the baby with the
bathwater because we're focusing on what is the least
contributing factor toward a disease which would result in a
greater contributing factor as more Americans lose their jobs,
as more jobs go overseas? In fact, the President signed an
agreement with China that they would promise to start limiting
their emissions by 2030 while we're lowering our emissions
pushing more jobs overseas.
So my question to the panel is, am I off base? Are we going
to lose more jobs in this nation because of the direction we're
going, which will result in a problem greater than what we have
right now? Mr. Eisenberg, you're in the manufacturing arena,
and that's where we've seen the greatest impact?
Mr. Eisenberg. Look, understand what I'm saying today. In
almost every case, we're comfortable with regulation but we
have regulations and those regulations are working, and it's
really about figuring out where that sweet spot is between
having a regulation that protects the environment and health
and making sure that we can actually do our jobs. In the cases
that we've cited today, they've gone a step too far. We're
asking them to take a step back towards normalcy.
Mr. Loudermilk. With that, Mr. Chairman, I see I'm out of
time. I would love to continue this on but I'll yield back.
Chairman Smith. Thank you, Mr. Loudermilk. I appreciate
that.
The gentleman from Texas, Mr. Neugebauer, is recognized for
questions.
Mr. Neugebauer. Thank you, Mr. Chairman.
Mr. Kerr, you know, since 1986, EPA and the Corps has only
had jurisdiction over the wetlands adjacent to other
jurisdictional waters. Can you explain in detail the rule's new
concept of adjacent waters?
Mr. Kerr. Yes.
Mr. Neugebauer. I'm over here in the cheap seats.
Mr. Kerr. Thank you, Congressman. Yeah, prior to the new
rule, through court precedent, the Corps regulated wetlands
that were adjacent to waters that themselves were not wetlands.
What does that mean? If you go to a major river and there's a
large wetland next to the river, there's a dike built through
that wetland, the wetland on the other side of the dike, the
landward side was regulated. But if there was a small pond that
had been abandoned because the farmer stopped working a certain
area or he moved hogs off of that area and that pond was in a
field that became wooded and he didn't use it for more than
five years, the Corps would typically consider that an isolated
water, and that's the way it's been working up until May 27th
with the new rule. Under the new rule, that pond can now be
regulated as an adjacent water so it's a change in how they
approach it.
The other thing is that there's a site that I worked on
with a development client where there were several small
isolated wetlands. The Corps of Engineers back in the late
1990s confirmed them to be isolated wetlands, and the
Commonwealth of Virginia regulated those wetlands. Under
today's rule, those wetlands would also be considered adjacent
and under the jurisdiction of the federal government. So those
are two ways that it's changed.
Mr. Neugebauer. So to your knowledge, is there legal
precedent for the agencies to establish jurisdiction over these
waters?
Mr. Kerr. The short answer is no. There is no court
decision that required the Corps of Engineers to change how
adjacency was determined, to my knowledge, and I've been doing
it for 26 years.
Mr. Neugebauer. So as a wetlands delineator, or can you
describe how the new adjacent-waters definitions including the
neighboring definition will change the way you make your
jurisdictional determinations?
Mr. Kerr. Yeah, those two examples are two clear examples.
The third is the portion, much like manufacturers--I mean,
there are certain parts of this rule that are understandable,
they're relatively reasonable. The one issue with adjacency
that gives me greatest concern is the criteria that says any
water within 1,500 feet of a traditionally navigable water is
by definition, by rule adjacent and therefore jurisdictional
under the Clean Water Act. In the coastal areas--and I come
from the coastal plain of Virginia--but this goes from Texas
to, you know, the coast of New York, you are now extending this
measuring stick out 1,500 feet, and anything that falls within
that--and you measure 1,500 feet from the innermost limits of
tidal waters, tidal creeks, tidal bays miles inland from the
ocean, you extent this measuring stick 1,500 feet, and anything
within that zone is jurisdictional as an adjacent water by
rule. That's a dramatic change.
Mr. Neugebauer. I want to get to talking about ditches, and
I think one of the things that my agriculture community thinks,
has concerns that by--those people that believe that EPA has
exempted some of the ditches from their jurisdiction, or EPA is
telling, I guess, the agriculture community that. Do you
believe that's in fact true?
Mr. Kerr. If I could give you just a little context for my
opinion on that, our firm just recently completed a delineation
that involved over 56,000 linear feet of ditches. So just
around ten miles of ditches. We had to walk them all, and we
asserted they were non-jurisdictional. It took about a year, I
think, to get the confirmation that in fact they were non-
jurisdictional. Under today's rule, I can tell you, I can walk
you to these ditches that are now jurisdictional. As has been
said, there are two criteria about ditches that I think are
fine, and they're the first two. The last one to me is the
recapture provision, and in fact, I went through the entire
preamble, 200 pages. I've read what I can find on it, and
there's not a specific mention of how they arrived at the third
criteria, and the issue with it is, that it says ditches that
don't flow through another water are exempt. Ditches virtually
by definition flow into a water of the United States, and we
have an example where the water in the United States was a
channelized stream, was eight feet below grade. There are some
ditches three feet below grade that, you know, kind of like a
waterfall discharge into this creek. The water never--you know,
this ditch does not touch the bottom of that ditch. The water
falls through the air about five feet, runs down the edge of
the embankment when there's water. These are intermittent
streams--or ditches. Those ditches would be regulated as a
tributary of the United States under this rule. I am sure of
it.
Mr. Neugebauer. So there is still confusion out there and
uncertainty when it comes to the ditches issue?
Mr. Kerr. Yes, sir. If I could, one suggestion I would
have, it seems to work in Virginia. I don't want to claim that
it would work nationally. But I would like to see, as someone
else here mentioned, an opportunity where the EPA gets a
roundtable together, a technical advisory committee, and allows
that technical advisory committee to provide direct input, and
it would have conservation groups, industry, consultants, the
entire gamut, work on an issue for--in Virginia it's up to 180
days before a rule goes out for public comment. So you would
still have public comment. I think 180 days is better than 90.
I don't think--I think with these large regulatory issues,
they're too complicated to do too quickly.
Chairman Smith. Mr. Kerr, I think that's a good idea. Thank
you. Thank you, Mr. Neugebauer.
The gentleman from Texas, Mr. Weber, is recognized.
Mr. Weber. Thank you.
Mr. Kerr, you said earlier isolated wetlands were not
regulated by the EPA according to a Supreme Court case. Can you
give me the name of that case?
Mr. Kerr. Yes, SWANCC.
Mr. Weber. S-w-a-n-k?
Mr. Kerr. S-W-A-N-C-C, I think, Southern Water -- Southern
Waste Management Authority. It was a county in Chicago.
Mr. Weber. Perfect. Thank you.
Mr. Eisenberg, you said manufacturers use one-third of the
energy in the United States. You know, I have five ports in
Texas. We export a whole lot of things and we have a lot of
petrochemical industry and oil and natural gas and on and on
and on. When I speak to groups, I often say that the things
that make America great are the things that America makes. How
do we do that with a stable, reliable, affordable, dependable
energy supply? Mr. Kerr, would you agree with that, that
America is great because of the things we make and we have a
good energy supply to fuel, for lack of a better word, our
industry?
Mr. Kerr. Yes.
Mr. Weber. Mr. Kovacs, would you agree with that?
Mr. Kovacs. Yes.
Mr. Weber. Dr. Paulson, would you agree with that?
Dr. Paulson. I don't know enough to comment. I think you're
right but I don't know.
Mr. Weber. Mr. Eisenberg, would you agree with that?
Mr. Eisenberg. I do.
Mr. Weber. Good. Mr. Eisenberg, you also said that 65
percent of the controls the EPA was mandating were not
identifiable. Is that true?
Mr. Eisenberg. Yes. It's EPA term of art. They call them
unknown controls. They just----
Mr. Weber. Okay.
Mr. Eisenberg. --can't tell us what they are.
Mr. Weber. And Mr. Kovacs, if I remember your testimony,
you said that the EPA itself said this was going to be the most
expensive regulation in history but that it wouldn't impact
states.
Mr. Kovacs. Yes, that's--they have this technical where if
it's a mandate, they don't--and the state has to do it, they
don't count it as----
Mr. Weber. So that was your comment, right?
Mr. Kovacs. Yes.
Mr. Weber. Okay. Good. So let me come back to you, Mr.
Kovacs. It's the most expensive regulatory rule in history but
it's not going to impact states. Does that sound commonsensical
to you, Mr. Kovacs?
Mr. Kovacs. Well, that's been the point of my testimony,
that Congress has legislated for years common sense and you
haven't gotten it.
Mr. Weber. So is your answer no, it's not commonsensical?
Mr. Kovacs. It's not common sense.
Mr. Weber. Mr. Kerr, would you agree that that statement
doesn't sound commonsensical? It's the most expensive
regulation in history but it won't impact states.
Mr. Kerr. I think that's nonsensical.
Mr. Weber. Dr. Paulson, would you agree with that?
Dr. Paulson. Sir, I have no idea what the context is so I
can't comment.
Mr. Weber. Mr. Eisenberg, would you agree with that?
Mr. Eisenberg. I would agree.
Mr. Weber. Mr. Eisenberg, when an energy plant builds a
plant--and I had a nuclear plant in my district when I was
state rep. When an energy plant--when someone comes in to build
an energy plant, permitting and all, the process takes three to
five years?
Mr. Eisenberg. If you're lucky.
Mr. Weber. If we're lucky. Okay. So if it's that hard on us
and the EPA is making it harder and harder and harder, and it's
billions of dollars, does it surprise you that some of those
investors that have that kind of money to invest actually send
that money overseas? Does that surprise you?
Mr. Eisenberg. It doesn't at all. Streamlining that process
is a priority.
Mr. Weber. Dr. Paulson, does that surprise you?
Dr. Paulson. Again, that's beyond my expertise, sir.
Mr. Weber. It's above your pay level, pay grade?
Dr. Paulson. I don't use that terminology but it's beyond
my expertise.
Mr. Weber. Mr. Kovacs, does that surprise you?
Mr. Kovacs. No.
Mr. Weber. Mr. Kerr?
Mr. Kerr. I'll say this is--the energy policy is outside my
purview.
Mr. Weber. Okay. You know, when I was a state rep I was on
the environmental reg committee in Texas and I came up here to
Congress--D.C.--in March of 2010 to an Energy and Environment
Committee Meeting, National Conference of State Legislators,
NCSL. I heard with my own ears an Under Secretary for the EPA
back then say that they wanted to permit farms because of
global warming, greenhouse gases, average farm permit $26,500
per farm. Now, they had done the math, and Doctor, I trust you
can do math. Okay, good. You didn't seem to want to weigh in on
most of the other questions. They had calculated the income
stream--now, this is their words, not mine--a revenue stream of
$600 million. It turns, you know, that the streams on farms and
ranches aren't the only streams the EPA is interested in, okay?
Six hundred million dollars. Now, is the EPA really only
interested in science when they say they want to permit farms
and it produces a revenue stream of $600 million? Does that
sound like they're interested in more than science, Mr.
Eisenberg?
Mr. Eisenberg. So I don't know that I can effectively
answer that one but I mean, they need to find a balance.
Mr. Weber. They do. They're going to kill our energy supply
if we're not careful, and Dr. Paulson, we're going to wind up,
poor kids are going to all be broke. They're going to be
healthy but we're all going to be broke. That's the danger of
losing jobs and sending our energy overseas because China and
Mexico and India are not going to follow suit.
So I'm going to stop there. That's my editorial, Mr.
Chairman. I appreciate you letting me go over. I yield back.
Chairman Smith. Thank you, Mr. Weber, and the gentleman
from Alabama, Mr. Palmer, is recognized.
Mr. Palmer. Thank you, Mr. Chairman.
I want to start out by addressing air quality, and I have
here the air quality section from a report done by the Alabama
Policy Institute that shows that since 1980, our GDP has
increased by 467 percent, vehicle miles traveled up 94 percent.
The population's grown by 38 percent. Energy consumption is up
22 percent. But emissions are down 50 percent. When you look at
the air quality index and the percentage of days per year that
the air quality index exceeded the standards, we went from
about 24 percent in 1980 to about two percent. So there's no
question that we have done an excellent job of improving air
quality yet the asthma rate has gone up. I think that's been
mentioned several times.
I'd also like to point out that there might be other
factors that cause asthma rates to have gone up, and for
instance, here's a report from UCLA, University of California,
Los Angeles, in case anyone wonders what the acronym is. It
says asthma disproportionately affects low-income populations,
and the percentages are astonishing, frankly, that it would
have such a higher prevalence among low-income families when I
think--and I'll ask my colleague from California, Mr. Knight, I
believe that higher-income families breathe the same air as the
low-income families. So, Mr. Chairman, I'd like to enter into
the record the article and the section from the report on air
quality, and I'll also point out----
Chairman Smith. Without objection.
[The information appears Appendix II]
Mr. Palmer. Thank you.
As well that there is an estimate on what the ozone--new
ozone regulations will cost. I find it interesting, Mr. Kerr,
that the EPA seems to think that there's not going to be an
impact. Is it possible in your mind just rationally thinking
this through that the additional regulations that are being
imposed on businesses that are going to result in substantial
job losses, that's going to result in less disposable household
income, that will result in lower incomes could have a more
negative effect on health and well-being of people than any
positive effect that additional regulations would impose,
considering the improvements that we've made already?
Mr. Kerr. I'll have to concede to the others because I
don't do air quality consulting.
Mr. Palmer. My question is, do the people who work for the
businesses of the United States and earn income do better in
terms of health and well-being than people who have no income
and no job?
Mr. Kerr. Yes, sir, they do.
Mr. Palmer. That's part of what I would consider
commonsense policy.
In May of--in a May 29, 2015, interview with PBS News Hour,
EPA Administrator Gina McCarthy stated the following: that
farmers will know very clearly here we are clearly explaining
that irrigation ditches are not included. We have clearly said
in the rule beyond this rule adds absolutely no regulatory or
permitting issue to agriculture whatsoever. Do you agree with
that statement?
Mr. Kerr. No, I don't. If I could get a chance to elaborate
at some point, I'd like to give you time to ask more questions.
Mr. Palmer. Okay. We'll come back to that as the last
opportunity for you to speak.
Mr. Kerr, former EPA Office of Water Deputy Administrator
Nancy Stoner previously stated that the rule will not have a
negative effect on small businesses. She said the Agency sought
early and wide input from small businesses while developing the
proposed rule including meetings as far back as 2011. Do you
agree with this statement, that the rule will not have a
negative impact on small businesses?
Mr. Kerr. I disagree with the statement. I've talked to
small homebuilders. You know, regulatory creep is already
having an effect.
Mr. Palmer. Well, that conclusion is consistent with what
the National Federation of Independent Business concluded. They
had a Small Business Optimism Index and found that small
business owners attributed regulations as the single-most
important problem facing businesses today.
So you said that you'd like to elaborate on something. You
may do so.
Mr. Kerr. Thank you. Well, two parts. When a farmer in
Chesapeake is looking to sell his land and needs a wetland
delineation done so that the prospective purchaser can
determine where they can build, we're walking out into soybean
fields and looking at areas that show up as moist signatures on
aerial photographs and looking to see if there might be some
wetland plants or stunted vegetation in a crop field, and the
Corps of Engineers before this rule are regulating those areas
as wetlands. Now, if they're isolated, then the Corps--the
federal government does not take jurisdiction; the Commonwealth
of Virginia would. If they're adjacent to a ditch that's
adjacent to a wetland, all of a sudden they are regulating it.
Now, that--that has already crept into the procedure, and I've
argued consistently that it shouldn't because Congress went to
the Corps back in 1990 and said create what's called a PC
cropland, prior converted cropland. They had--there was a
regulatory guidance letter the Corps put out, 90-7, that
spelled out the procedures for that that exempted agricultural
fields as long as they didn't pond or flood for 7 to 14 days.
Any portions that did would be considered a farmed wetland and
be regulated.
In 1993, the EPA and the Corps put out a rule that said
we're codifying regulatory guidance letter 90-7, and you would
think, I thought--I'm a consultant. I know 90-7. They said they
codified it, which would have perpetuated this exemption for
most farm fields that were farmed prior to 1985, don't pond or
flood for very long duration and have never been abandoned for
more than five years.
With that rule in place, they're now telling me that what
that actually means is that they don't recognize the prior
converted cropland rule created by the NRCS under the Food
Subsidy Act and that the Corps doesn't recognize 90-7 anymore
at all anywhere at any time, and I've repeatedly asked the
question, and the rule that's just been passed, they simply
said we're not changing that because we weren't--that's not
part of our charge. They changed adjacency definition and that
wasn't part of their charge. I would love to see Congress--to
me, there's no confusion. In fact, there's a court in Florida
that's already decided this case, which I brought to the Corps'
attention, which didn't get any traction, and that judge said
you can have two different rules that use the same phrase and
they mean two different things because they fall under two
federal laws. That's not occurring, and we have farm ditches
and farmland being regulated today and it'll continue.
Mr. Palmer. Mr. Chairman, just one last point. I want to
point out that Dr. Phillip Lloyd, former U.N. International
Panel on Climate Change lead author, found that global
temperature change over the last 100 years is well within the
natural variability of the last 8,000 years. Standard deviation
over the last 8,000 years is .98 degrees Celsius. I want to
emphasis point 98----
Chairman Smith. Thank you----
Mr. Palmer. Over the last years it's been .85 degrees
Celsius.
Chairman Smith. Thank you, Mr. Palmer, and if you would
give us a document to put into the record as well.
Mr. Moolenaar, the gentleman from Michigan, is recognized.
Mr. Moolenaar. Thank you, Mr. Chairman.
Mr. Kerr, I'd just like to continue following up with you
and then also talk to Mr. Kovacs and Mr. Eisenberg on some of
the Waters of the United States issues. What in your judgment--
there were some court cases. There's the Clean Air Act and
there was an effort by the EPA to clarify its jurisdiction. Is
that really how we've gotten to this point?
Mr. Kerr. Yes. There were a few Supreme Court decisions,
SWANCC being one, Rapanos being one of the other two or three
major ones. That's correct.
Mr. Moolenaar. And so in your judgment, were they trying to
solve a policy problem that existed out there where people
throughout the country were saying, you know, there's not
enough water or--what problem other than the legal issues were
they trying to solve?
Mr. Kerr. Two real problems. One is the legal question, and
there was some ambiguity because of multiple Supreme Court
decisions that had to be looked at in the field, and then it
became the practical problem of how do you provide guidance to
regulatory staff and consultants that's clear, easily
understandable and could be consistently applied, not only in
an area but across the entire country. So that was the
challenge, and they tried to take in science, and in the
preamble of the rule, they said those are the three compelling
issues they have to deal with--science, policy and law--and
they said that science in fact falls short in certain areas,
and they've got to reach a policy decision that's consistent
with the law.
Mr. Moolenaar. And in your judgment, it's gotten actually
more complicated. Some of these new definitions, rather than
giving clarity, have really expanded their jurisdiction and
raised a number of new questions.
Mr. Kerr. Yeah, they've kind of moved items around, and so
things that were previously one thing like possibly an isolated
water that wasn't regulated can become an adjacent water. The
other thing is, they did create a bright line but the bright
line--and I'm speaking specifically to rule A8, wetlands that
show a significant nexus to traditionally navigable waters,
allows that to be applied to any feature within 4,000 feet of
an ordinary high-water mark or a tributary.
Now, we're not talking about rivers, we're not talking
about streams, we're not talking about creeks. Where I come
from, there were creaks, then there were smaller ones that were
cricks. We're not talking about those. We're way up into the
headwaters of ephemeral and intermittent streams and then going
4,000 feet out to determine a significant nexus.
My point is that that includes virtually the entire
watershed of virtually every place that I've looked. So they
created a bright line but it includes everything.
Mr. Moolenaar. So in your judgment, and I wanted to hear
from Mr. Kovacs and Mr. Eisenberg, do you view this as a
significant expansion of their jurisdiction, of their
authority? I mean, is that your conclusion?
Mr. Kerr. Yeah, and they've--it's not any clearer. They've
expanded jurisdiction into areas that heretofore may not have
been regulated or weren't regulated, and the procedures aren't
any clearer. They provided some bright lines, and some of those
are commendable but others are just--they kind of grab all
kinds of things and don't create the simplicity that anyone was
looking for.
Mr. Moolenaar. Mr. Kovacs, do you view this as a
significant expansion of their jurisdiction or authority?
Mr. Kovacs. Well, it certainly is significant expansion of
their authority. I think what troubles me the most in this
whole argument is not once in all the hundreds of pages that
they have did they ever say that the states weren't doing a
good job on state waters, which is really remarkable. Second,
that they never said that the water quality that was
administered by the states was in any way impaired. That's
quite remarkable. Under unfunded mandates, they make it very
clear that they are imposing no mandates on state and local
governments, and in terms of small business they say there's
absolutely no impact even though they're greatly enhancing
jurisdiction.
This is a shell game, and this is what the whole regulatory
process has become, and that's why I keep on pleading, Congress
really needs to take more action and get back in the game.
Mr. Moolenaar. Let me go to Mr. Eisenberg.
Mr. Eisenberg. So we just finished our annual fly-in. We
had 500 manufacturers coming to town. I had dinner two nights
ago with about 25 of them to talk specifically about water
issues, water scarcity, waters of the United States, things
like this, and at the end of the meal I said look, is this--are
you guys in a better place because of this regulation, and
every single one of them said no. It is still causing them
headaches. All we wanted was clarity. Had we gotten clarity, my
testimony would have been a lot different today. We didn't get
it.
Mr. Moolenaar. Thank you, Mr. Chairman.
Chairman Smith. Thank you, Mr. Moolenaar.
Before we conclude, Dr. Paulson, I was going to mention to
you that we contacted the Assistant Director of the Capital
Power Plant, and he confirmed that whether it burns natural gas
or coal, the smoke is still white, and while I certainly have
sympathy for any child who's gotten asthma, you might want to
check with the doctor about his statement that whenever the
smoke turned black, the asthma became worse. I'm not sure that
there's a basis for that. But I look forward to hearing more
information about it as well.
Thank you--the gentlewoman from Texas.
Ms. Johnson of Texas. Thank you, Mr. Chairman. Let me thank
all the witnesses. I want to ask unanimous consent to put an
article from the Scientific magazine in the record that speaks
to the role of science and rulemaking process.
Chairman Smith. Without objection.
[The information appears Appendix II]
Chairman Smith. We thank you all for your testimony today,
very helpful, very informative, and we stand adjourned.
[Whereupon, at 11:09 a.m., the Committee was adjourned.]
Appendix I
----------
Answers to Post-Hearing Questions
Responses by Mr. Bill Kovacs
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses by Dr. Jerome A. Paulson
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses by Mr. Ross Eisenberg
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Appendix II
----------
Additional Material for the Record
Documents submitted by Chairman Lamar S. Smith
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Documents submitted by Ranking Member Eddie Bernice Johnson
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Documents submitted by Representative Donna F. Edwards
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Documents submitted by Representative Suzanne Bonamici
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Documents submitted by Representative Don S. Beyers
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Documents submitted by Representative Paul Tonko
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Documents submitted by Representative Gary Palmer
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]