House Democrats Set to Move Forward on Bill Blocking New Ozone, PM Rules

Published October 1, 1997

Two key House Democrats, eager to overturn EPA’s new standards for particulate matter (PM) and ground-level ozone, told their Congressional colleagues last week they are prepared to move forward with legislation that would keep the agency’s controversial rule from taking effect.

Representatives John Dingell (D-Michigan) and Ron Klink (D-Pennsylvania) told a September 16 hearing before the House Agriculture Committee that support is building for H.R. 1984, a bill that is also sponsored by Representatives Fred Upton (R-Michigan) and Rick Boucher (D-Virginia). H.R. 1984 would place a four-year moratorium on promulgation of the new rule and provide EPA with $75 million to carry out what the bill’s sponsors say is much-needed research on the health effects of human exposure to PM and ozone.

Klink informed the Agriculture Committee he believes the bill already has a majority on the House Commerce Committee, and he hopes to bring the legislation for a vote before that key panel soon. Commerce Committee Chairman Tom Bliley (R-Virginia), an ardent opponent of the new standards, has not yet scheduled a vote on H.R. 1984 but may be persuaded to do so as support grows for the measure.

Still Counting Heads

The bill currently has over 170 co-sponsors, and the number is growing. This still leaves opponents of EPA’s rule well short of the 290 needed to override a certain presidential veto of the bill, but H.R. 1984’s sponsors believe the 290 (two-thirds) count is within reach. By winning a crucial vote in the Commerce Committee, the bill’s backers hope to give momentum to S. 1084, the Senate companion bill, sponsored by Senators James Inhofe (R-Oklahoma) and John Breaux (D-Louisiana).

The Senate is not likely to take any action on the bill unless it shows real promise of passing the House with the veto-proof 290 votes. Inhofe says he has 64 votes lined up in favor of his bill, three short of the 67 needed to override President Clinton’s veto.

Meanwhile, the administration and its Congressional allies continue to say they have enough votes to prevent the legislation from achieving a two-thirds majority in either body. In early August, Representatives Henry Waxman (D-California), Sherry Boehlert (R-New York), and Chris Shays (R-Connecticut) announced that enough votes had been pledged to keep H.R. 1984 from getting a two-thirds majority. But their refusal to release the names of lawmakers whose votes they claim they have has fueled speculation that administration supporters may be engaging in little more than posturing.

Browner: No Plans “to Regulate Farmers”

At the Agriculture Committee hearing, EPA Administrator Carol Browner tried to assure lawmakers that, in her words, “EPA is not going to regulate farmers.” Her remarks were meant to assuage the fears of farm-state lawmakers who worry that EPA will limit agricultural activities as a means of forcing compliance with the agency’s new clean air rules.

But when asked by Representative Marion Berry (D-Arkansas) if she could put that guarantee in writing, Browner’s response was: “I would not recommend amending the Clean Air Act.”

Under the Clean Air Act (CAA), it is not EPA that develops compliance plans; rather, the CAA put this responsibility squarely on the shoulders of the states, which must submit State Implementation Plans (SIPs) for non-attainment areas to EPA for the latter’s approval. With the onus on the states, Browner expressed confidence that state governments would not act to the detriment of farmers in developing plans to reduce emissions. “I simply don’t believe that any governor of any state is going to do that,” she said.

Several committee members challenged Browner’s statement, including chairman Robert Smith (R-Oregon). “That is a judgement decision of yours,” Smith said, noting it will be up to the states, not EPA, to determine how to reduce emissions of the two substances. “You can’t speak for the government of Oregon,” he told the EPA administrator.

Controversy Over New Classification

Acknowledging that coming up with SIPs will put many communities under enormous financial strains, EPA has said it will allow certain non-attainment areas to be categorized as being in a “transitional” status, meaning they will be given extra time to comply with the new standards. But since the CAA does not contain provisions for transitional status, concerns have been raised that the agency’s promise may have no legal basis. Browner was peppered with questions about how communities awarded EPA’s transitional status could defend themselves against the citizen-initiated law suits provided for in the CAA.

Klink pointed out to Browner that even if EPA moved forward with good intentions, “It only takes one citizen lawsuit to put all those intentions aside.”

Browner defended the agency’s plans for transitional status by arguing that the CAA provides for citizen suits only if states fail to submit SIPs to EPA. In the agency’s view, so long as states submit their plans, they will have met the requirements of the CAA and would not be subject to citizen suits.

A Timely PM Suit

However, a citizen lawsuit just initiated against EPA calls into question Browner’s interpretation of the CAA. On September 19, the Portneuf Environmental Council (PEC), through its attorney, notified EPA of its plans to sue the agency over what the Idaho-based group says is EPA’s failure to adhere to the CAA. PEC charges that EPA has violated the CAA by failing to determine whether Idaho’s Power and Bannock Counties have attained the current standard for particulate matter (PM10).

The suit notes that the original attainment deadline for the Power-Banncock non-attainment area was December 31, 1994, a deadline EPA extended to December 31, 1996. Under the 1990 amendments to the CAA, the group points out, EPA is required to publish a notice in the Federal Register no later than six months following the attainment deadline, identifying the area as having failed to obtain the standard and reclassifying the area as a “Serious Area” of non-attainment. In a letter to Browner, PEC’s attorney alleges that EPA has published no such notice in the Federal Register even though “EPA staff have recognized that the data collected by EPA clearly demonstrate the area has not attained the national [PM] standard.”

Significantly, the threatened suit is being brought even though Idaho has submitted a SIP to EPA. The agency has not yet responded to the threatened suit.

Avalanche of Suits Against EPA

Meanwhile, opponents of the agency’s new ozone and PM standards have stepped up their own legal action against EPA. The number of groups suing EPA over the new standards has grown over the past two-and-one-half months from seven to over forty, with more expected to join the fray. Like the U.S. Chamber of Commerce and the American Truckers Association, who were among the first to sue the agency, most of the new complainants allege that EPA, in developing the new air quality standards, failed to abide by a host of procedures contained in the Small Business Regulatory Enforcement Fairness Act (SBREFA), an amendment Congress attached to the Regulatory Flexibility Act last year.

Among those suing EPA over the new air quality rules are the American Petroleum Institute, Chemical Manufacturers Association, National Association of Manufacturers, National Mining Association, Small Business Survival Committee, West Virginia Chamber of Commerce, Indiana Farm Bureau, United Mine Workers, and the states of Michigan and West Virginia.