REP. WHITFIELD PROBES STATE REGULATORS ON CLEAN AIR ACT ISSUES

Tamar Hallerman
GHG Monitor
08/03/12

House Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) said this week that Congress will not likely move forward on Clean Air Act reforms until the Environmental Protection Agency and state regulators agree on a definitive list of problem areas that can be addressed by legislation. “The states that are affected by the Clean Air Act and the federal EPA would have to come to some agreement on changes to the process. If that happens then I think certainly Congress would try to be responsive to that,” Whitfield said. The chairman’s remarks came on the sidelines of the first of two forums he convened this week with state, local and tribal environmental regulators meant to be a listening session on their experiences working with the law.

The roundtables this week were the first concrete steps forward on a potential Clean Air Act (CAA) reform process that has been rumored for months. Many have said that an update is long overdue—it has been 22 years since Congress last amended the CAA in 1990. However, some environmental groups have said in recent months that they are concerned that the Republican-controlled House could aim to weaken the landmark environmental law given the series of measures it has passed over the last 18 months aiming to halt or weaken upcoming EPA air quality regulations. “As you proceed with the Clean Air Act forums…we urge you to make this crucial pledge to the American people: that any policy or legislation emerging from the forums will clean the air more and faster than current law,” a coalition of environmental groups said in a letter to Whitfield sent ahead of the forums. “We ask you and subcommittee members to commit to making air quality and public health better, not worse than the status quo.” Whitfield stayed silent on his perspective on the issue during the forums. “The real purpose of these forums is simply to listen at this point,” Whitfield told reporters. 

Regulators Ask for EPA to Involve States in Settlement Agreements

During the July 31 forum, officials from state, local and tribal environmental agencies from New Hampshire to southern California all spoke about the important reforms that the CAA has provided since its inception in 1970. However, all listed issues they had with implementing the law on state and local levels—dealing with difficult compliance guidelines, low levels of funding and the threat of litigation from local groups. Whitfield told reporters following the forum that he saw some distinct areas of overlap that could be addressed in some sort of potential legislation. He highlighted comments from several regulators who said they want to be looped into the process as EPA negotiates settlement agreements with petitioners suing the agency on environmental grounds in the future. Many complained that they often are not aware of the outcomes of major settlement agreements—which have helped drive the promulgation of major regulations affecting coal-fired generation in recent years, including greenhouse gas performance standards and regulations limiting particulate matter—that affect their states until after the details are publically released, feeling “blindsided” and left out. They lamented what they said is a lack of transparency on EPA’s part.

Teresa Marks, director of the Arkansas Department of Environmental Quality, said that her state does not want to be involved in all of the litigation EPA faces, but would like to be consulted in cases that affect Arkansas. “When you’re looking at the settlement of large cases that are going to have an impact on your state resources, then we do feel like we need to have some type of input into that,” Marks told the forum. “Right now, legally we have figured the only way to do that is to try to intervene as a party… but we would like to be able to be included on the front end.” Stephen Etsitty, executive director of the Navajo Nation Environmental Policy Agency, agreed. He said that the coal resources controlled by Navajo Nation are often the subject of potential litigation from anti-coal groups but that the Nation often feels sidelined by EPA during the defense process. “[Anti-coal groups] don’t even come to the Nation to discuss their issues, they just file lawsuits, and EPA goes into this process and we’re excluded,” he said. “We know they’re doing their job under the statute, but they’re falling short in terms of their responsibility to engage the Nation as its trustee.” Robert King, deputy commissioner of the South Carolina Department of Health and Environmental Control, said that the issue reflects a lack of communication between EPA and states on several CAA issues.

Whitfield said that issues with the relationship between EPA and states over state implementation plans (SIPs), the blueprints by which states comply with federal air regulations, appear to also be a common area of concern. Nearly all regulators complained that EPA often takes several months to multiple years to review SIPs and that by the time state agencies receive a response it is time to reevaluate the standard under CAA requirements. “EPA often takes years to act on SIP plans and associated rules (many times not acting until threatened with potential litigation), without any consequences to EPA for the delay,” wrote Brad Poiriez, an air pollution control officer for California’s Imperial County Air Pollution Control District, in a letter to Whitfield ahead of the hearing. “For states and local districts, this causes confusion, challenges and burdensome consequences.” Thomas Burack, a commissioner with New Hampshire’s Department of Environmental Services, agreed. “The SIP process could see significant improvement if EPA had adequate resources to engage earlier with the states as the states are developing SIPs, provide more timely guidance to states and act on SIP submittals in a more timely manner, such as within a few months rather than some years,” he wrote in a similar letter. Some officials said they have been in discussions with EPA to reform the SIP process but that efforts to date have been slow.

Next Step: ECOS

Whitfield said that outside of potentially another CAA forum, he does not expect to cover much ground on the issue before the end of this year. “I don’t think we can do a lot between now and the election,” said Whitfield. At this point, it is unclear what will be considered palatable for consideration in the chamber, which has moved to the right on environmental issues over the last several years. It also appears unlikely that Whitfield will be able to gain any support from his Democratic colleagues on the committee if climate change is not addressed in any proposed reforms. Whitfield said he has not yet sat down to talk with his Democratic colleagues on the House Energy and Commerce Committee on the issue.

In the meantime, the next moves seem to be with the Environmental Council of the States (ECOS), the association of state and territorial environmental agency leaders that plans on discussing the issue of CAA reforms in detail in the coming months, some of the regulators said. “I see these [forums] as a starting point. There will be additional forums, follow-up based on the testimony that they’ve given us and we’ll have more conversations with ECOS, and we’ll just have to see what develops over time. I don’t have a piece of legislation that I’m getting ready to introduce tomorrow,” Whitfield said.