Why Air-Policy Bills Are Going Nowhere This Congress

Even with complete control of Washington, Republicans seem unable to pass legislation rolling back Clean Air Act regulations.

FILE - In this July 6, 2017, file photo, the Longview Power Plant in Maidsville, W.Va.
AP Photo/Michael Virtanen
Nov. 10, 2017, 1:09 p.m.

The Senate signed off on Bill Wehrum Thursday as the next Environmental Protection Agency clean-air chief—and that was likely the last significant Capitol Hill action on air policy writ large this Congress.

A suite of Republican bills—many of which are perennial and date back decades—that aim to roll back Clean Air Act regulations is awaiting action, but key power brokers in the Senate admit the challenges are too great for ultimate passage.

Instead, those Republicans are ceding policymaking authority to the EPA, which continues to push through an aggressive deregulatory agenda.

“My ozone bill, I think, I’m still very interested in, but I don’t see a big movement. We’re running out of time anyway,” said Sen. Shelley Moore Capito, chair of the Environment and Public Works subcommittee on clean air and nuclear policy. “I think the Clean Power Plan and what’s going on with that certainly has been our highest priority, making sure it doesn’t move forward.”

The EPA last month proposed a repeal of the Clean Power Plan, the Obama administration legacy item that would require reduced emissions from power plants. That follows a long line of regulatory rollbacks since Administrator Scott Pruitt took the helm, including a process now underway to revise the EPA’s regulatory jurisdiction over bodies of water.

Republicans, and a handful of business-friendly Democrats, have tried in vain to advance versions of ozone legislation since the 1990s.

Capito’s bill would delay implementation of the 2015 ozone standard, extend the National Ambient Air Quality Standards review cycle to 10 years, and allow the EPA to incorporate economic costs into the development of the standards (which set thresholds for allowable pollution in the air).

In 2001, the Supreme Court, with an opinion written by conservative Justine Antonin Scalia, ruled that the Clean Air Act prohibits the EPA from factoring economic costs into the establishment of the ozone standards and those for five other pollutants. The bill would overturn that decision.

Ground-level ozone, informally referred to as smog, can lead to lung deterioration, damage the respiratory system, and worsen asthma. States are required to put in place implementation plans to comply with the federal standards.

Even with 14 months left this legislative session, Capito and others concede that their unified Republican government isn’t strong enough to surmount legislative hurdles, namely the 60-vote threshold in the Senate. Publicly, industry groups like the American Chemistry Council and the American Petroleum Institute are continuing to push for movement on the ozone bill, but privately some industry members say the legislation, and similar bills, aren’t worth the political effort.

“This doesn’t really rise to the level of anyone’s burning priority,” said an industry group counsel who asked not to be named, indicating that an amendment process on such a bill would cause a legislative knife fight. “Once you open up the Clean Air Act just a little bit, you cannot control where that process goes. Everybody has a lot to lose, and I don’t think anyone has planned how that would unfold.”

That scenario, in fact, played out at the Senate environment committee in July. Chairman John Barrasso scheduled a markup on legislation to boost higher-blend ethanol sales at the request of Sen. Deb Fischer, a Republican committee member representing corn-producing Nebraska. Sen. James Inhofe, an ethanol opponent, threatened to offer a slate of amendments targeting fuel-economy standards and methane regulations.

The legislation would have amended the Clean Air Act, but Fischer ultimately called off the hearing.

Energy experts say the ethanol bill isn’t a major change to the statute, but Republicans failed to pass multiple Congressional Review Act measures earlier in the year that would have rolled back significant regulations. A measure on methane flaring from oil and gas operations fell short of the 50 votes needed in the Senate, and leadership in both chambers chose not to take up other measures on emission standards, cross-state pollution, and risk-management programs for industrial facilities that house hazardous substances.

Those failures have encouraged environmental groups—though they’re still prepared to fight any bills that show signs of life.

“We have to remain vigilant, but there’s not a great track record so far legislatively against what we could consider common-sense safeguards,” said Terry McGuire, an air-policy legislative expert at Earthjustice. “I think that reflects that when the rubber hits the road, there’s a political price that is paid for some of these things. It’s much easier when you’re in the minority to just throw bombs.”

Capito’s subcommittee, in fact, will hold a hearing Tuesday on bills to postpone emission standards for new residential wood heaters and race cars, among other air-related legislation. The full committee, however, doesn’t plan to hold hearings on any of the bills, including the House-passed ozone bill, let alone markups.

According to John Walke, director of the Clean Air Project at the Natural Resources Defense Council, there is a suite of Republican bills that represent threats to public health. But he said it is the ozone bill, which is sponsored by Rep. Pete Olson in the House, that stands apart.

“If Mr. Olson’s dirty-air legislation were to become law, it would represent the most harmful rollback of the Clean Air Act in the law’s 47-year history,” Walke said. “This legislation eliminates the very health foundation of the Clean Air Act, which always has required safe-air standards to be based upon what level of air pollution medical science tells us is harmful to humans.”

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