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transcript
Executive Director’s Report
National Association of Clean Air Agencies
Fall Membership Meeting
Minneapolis, Minnesota
October 17, 2016
S. William Becker
What I Will Cover
Major Legislation in 114th Congress
Energy
Ozone
Regulatory Reform
Science
Other Notable Issues
FY 2017 Appropriations
Global Warming
Update on NACAA’s Model State GHG Plans
West Virginia v. EPA
Upcoming NACAA Activities
Major Legislation – Energy
Senate passed S. 2012, the Energy Policy Modernization Act of
2016, on 4/20/16 by vote of 85-12
Bipartisan measure including, among many other provisions: Significant increases in energy research budget (including clean coal
technologies)
Expanded weatherization and energy efficiency for buildings
Accelerated approval of pipelines and LNG exports
A declaration that biomass is “carbon neutral”
Last December, the House passed H.R. 8, the North American
Energy Security and Infrastructure Act of 2015 – far more
controversial than S. 2012; Administration has threatened to veto
because it weakens many of DOE’s existing programs
Conference committee negotiations began on September 8, 2016;
If agreement is not reached before the conclusion of this session,
the process starts over in the 115th Congress
Major Legislation – Ozone NAAQS
Ozone Standards Implementation Act of 2016 (H.R. 4775, S.
2882)
Postpones implementation of 2015 ozone NAAQS by up to 8 years
Allows consideration of technological feasibility when EPA sets any NAAQS
Extends NAAQS review cycle from 5 years to 10 years
Exempts permitted sources from new/revised NAAQS if EPA doesn’t publish
implementation rules/guidance when it publishes NAAQS; instead, sources
allowed to meet preconstruction review requirements of outdated standard
Allows stagnation, drought and high temperatures to be considered
exceptional events
Eliminates requirement for contingency measures in Extreme ozone
nonattainment areas
Approved by House 6/8/16; Senate has not considered; White House
threatened veto 6/7/16
Major Legislation – Regulatory Reform
Regulatory Accountability Act (H.R. 185) – Requires
adoption of least costly version of a rules
Approved by House 1/13/15; WH threatened veto 9/12/15
Unfunded Mandates Information and Transparency Act
(H.R. 50 & S. 189) – Requires more detailed analysis of cost
impacts of proposed regulations on business and state/local
governments
Approved by House 2/4/15; WH threatened veto 2/3/15
Small Business Regulatory Improvement Act (H.R. 527) –
Requires federal agencies to analyze indirect economic effects
of proposed rules on small businesses even if the business is
not directed regulated by rule
Approved by House 2/5/15; WH threatened veto 2/3/15
Major Legislation – Regulatory Reform
REINS Act (H.R. 427, S. 226) – Requires Congressional
approval of major rules
Approved by House 7/28/15; WH threatened veto 7/27/15
SCRUB Act (H.R. 1155, S, 1683) – Establishes a regulatory
commission to make recommendations for eliminating
unnecessary/costly rules Approved by House 1/7/16; WH threatened veto 1/5/16
Sunshine for Regulatory Decrees and Settlements Act
(H.R. 712, S. 378) – Curbs abuse of ‘Sue and Settle”
consent decrees & prohibits OMB from considering benefits
when estimating total costs of proposed and final rules Approved by House 1/7/16; WH threatened veto 1/5/16
Folds in ALERT Act (H.R. 1759) & Providing Accountability
Through Transparency Act (H.R. 690)
Major Legislation – Regulatory Reform
Regulatory Integrity Act of 2016 (H.R. 5226) – Requires
federal agencies to post all public communications the agency
issues during proposed rule stage.
Approved by House 9/14/16; WH threatened veto 9/13/16
REVIEW Act (H.R. 3438 & S. 1927) – Prohibits any “high-
impact” rule from taking effect until final disposition of all actions
seeking judicial review of the rule.
Approved by House 9/21/16; WH threatened veto 9/20/16
RAPID Act (H.R. 348) – Streamlines permitting of federally
funded & permitted projects; sets deadlines for NEPA reviews.
Approved by House 9/25/15; WH threatened veto 9/17/15
Major Legislation – Science
Secret Science Reform Act (H.R. 1030 & S.S. 544) –
Requires all information on which EPA relies for regulatory
actions to be “best available science”
Approved by House 3/18/15; WH threatened veto 3/3/15
EPA Science Advisory Board Reform Act Act (H.R. 1029
& S. 543) – Modifies EPA’s selection process for members
of the SAB
Approved by House 3/18/15; WH threatened veto 3/3/15
Major Legislation – Other Notable Issues
Diesel Emissions Reduction Act (S. 2816, H.R. 5913) –
Extends authorization for funding DERA at $100 million a
year for another five years.
Approved by Senate 7/18/16 (as amendment to S. 2012, the
Energy Policy Modernization Act)
NACAA joined with coalition of industry groups and
environmental and public health organizations to send a letter
to 67 House Members urging support for H.R. 5913 (9/8/16)
Major Legislation – Other Notable Issues FAST Act – Bipartisan, five-year, $305-billion surface
transportation law authorizing CMAQ at ~$12 billion over 5
years and making port-related landside equipment in PM2.5
nonattainment and maintenance area eligible for CMAQ
Signed by President Obama 12/4/15
Midnight Rule Relief Act (H.R. 4612) – Prohibits federal
agencies from proposing or finalizing “major” rules from the
day after a presidential election through Inauguration Day.
Approved by House 7/6/16 (as part of H.R. 4361); WH threatened
veto 7/5/16
SENSE Act (H.R. 3797) – For power plants fueled by coal
refuse, modifies CSAPR to allocate additional SO2 allowances
and MATS to provide alternative compliance options regarding
SO2 and hydrogen chloride emissions.
Approved by House 3/15/16; WH threatened
veto 3/15/16
FY 2017 Appropriations
Status of Appropriations Bills
Continuing Resolution – Congress adopted a CR to fund the federal
government through December 9, 2016 at FY 2016 levels (no air-related
riders)
House – Adopted H.R. 5538 on July 14, 2016
Senate – Senate Appropriations Committee approved S. 3068 on June 16,
2016; No floor action was taken
Possible Actions after December 9th Deadline for CR
Adoption of individual bills for separate federal agencies and departments
(highly unlikely)
Adoption of “omnibus” bill that rolls all federal programs into one enormous
funding measure (more likely)
Adoption of CR for the remainder of the fiscal year
(possible)
FY 2017 Appropriations
FY 2016
(Omnibus H.R.
2029)
Pre-rescission
Amounts
FY 2017
President’s
Request
NACAA
Recom-
mendation
House Bill
(H.R. 5538)
Senate Bill
(S. 3068)
EPA Budget $8.1 billion $8.27 billion $7.87 billion $8.12 billion
§103/105 Grants
$228.2 million $268.2 million $268.2 million $228.2 million $228.2 million
PM2.5
Monitoring
Stays in
§103
Yes
No – Begins 4-
year phased-in
transfer to §105
Yes
Yes
Yes
DERA $50 million $10 million $10 million $100 million $25 million
Targeted
Airshed
Grants
$20 million $0
$40 million $20 million
Revised
Regional
Allocation
Formula
Revised formula
to be
implemented
Revised formula
to be
implemented
EPA to include
revisions in
Cong.
Justification
Funds to be
allocated as in FY
2016
FY 2017 Appropriations
Additional Provisions and Riders
Greenhouse Gases:
Prohibits funding to address GHG emissions under § 111(b) [modified/reconstructed
plants] or §111(d) [existing plants] (House bill)
Prohibits issuance of Clean Energy Incentive Program giving credit to states for early
CPP action (House bill)
Prohibits rules/guidelines for methane emissions from oil and natural gas sector (House
bill)
Prohibits EPA using Section 115 international provisions to regulate GHGs (House bill)
Prohibits funds to regulate trailers under GHG emissions and fuel-efficiency standards
for medium- and heavy-duty engines and vehicles-phase 2 (House bill)
Prohibits EPA’s “Social Cost of Carbon” estimates in rulemaking or guidance until they
have been reviewed and revised (House bill)
FY 2017 Appropriations
Additional Provisions and Riders (continued)
Greenhouse Gases (continued):
Prohibits Title V permitting regulations for GHGs related to livestock production and
mandatory reporting of GHG emissions from manure management (House and Senate
bills)
Exempts “glider kits” from Phase 2 heavy-duty truck GHG rules. (House bill)
Ozone – Postpones implementation of 2015 ozone NAAQS by up to 8 years
(House bill)
Risk Management Program – Prohibits rulemaking on accidental release
prevention requirements (House bill)
Glass Manufacturers – Prohibits rules under Section 112 for glass
manufacturers that do not use continuous furnaces (House bill)
Multipurpose Grants – Eliminated funding of these grants (Senate bill)
NACAA’s Model State GHG Plans
NACAA released an electronic version of Implementing EPA’s Clean Power
Plan: Model State Plans to NACAA’s members on May 13, 2016 and to the
public on June 1; Many stakeholder groups invited us to meet with them to
discuss the document, including, among others:
American Public Power Association
Energy Efficiency for All
National Association of State Energy Officials (NASEO) Board of Directors
Business Council on Sustainable Energy
NACAA recently published hard copies of the Model and mailed them to each
state air agency, a selection of local air agencies, key administration officials,
and other important stakeholder groups
NACAA will continue to offer technical assistance related to the Model
West Virginia v. EPA Shortly after the Clean Power Plan was published in the Federal
Register on October 23, 2015, more than two dozen states and
numerous other parties filed petitions asking the U.S. Court of
Appeals for the D.C. Circuit to overturn and stay the rule
The D.C. Circuit rejected the stay motions on January 21, 2016;
however, on appeal, the Supreme Court on February 9, 2016
ordered the rule to be stayed pending the outcome of the litigation
The D.C. Circuit subsequently scheduled oral arguments for
September 27, 2016 and announced that the challenge would be
heard by the full court sitting “en banc” rather than by a traditional
three-judge panel
West Virginia v. EPA
Courtroom seating for the oral arguments was limited and demand was
very high; lines began forming outside the courthouse well before 5 a.m.
In spite of the case’s complexity, the judges were well-prepared and very
engaged, asking hard questions of both sides for seven hours
The argument was divided into five distinct issue areas:
Whether EPA could look outside the “fenceline” to set BSER
Whether EPA’s use of Section 112 to regulate power plant emissions
prohibits it from using Section 111(d) to regulate power plants
Whether the Clean Power Plan impermissibly commandeers or
coerces state governments
Whether the public had adequate notice of the rule before it was
finalized
Whether EPA’s building blocks meet other BSER requirements
West Virginia v. EPA
The court seemed most interested in the “fenceline” issue but also spent
significant time examining the relationship between Section 111(d) and
Section 112
An overarching theme: whether the rule is “transformative” such that the
court should not afford EPA its usual level of deference; whether EPA
required a “clear statement” from Congress to exercise authority in the way
it did
Outcomes are notoriously difficult to predict from oral arguments, but most
observers gave EPA the edge
The “fenceline” issue appeared to be the toughest for the agency
Most do not expect the D.C. Circuit to release a decision until early 2017
Most expect the case to go to the Supreme Court, but the Scalia vacancy
and the upcoming election make it even more difficult than usual to
anticipate what will happen
Upcoming NACAA Activities
Holding NACAA Monitoring Steering Committee meeting
with EPA in January 2017
Commenting on EPA proposal to revise regulations
governing Title V petitions process
Helping members share information about state and local e-
permitting initiatives
Following progress of E-Enterprise Combined Air Emissions
Reporting project
Facilitating members’ involvement in November 2016
Regional/State/Local Modelers’ Workshop
Following progress of new MOVES Review Workgroup
Upcoming NACAA Activities
Conducting stakeholder outreach and training for the
NACAA Model State GHG Plans, including technical
webinars for NACAA members
Continuing “3-N” collaboration with NARUC and NASEO
regarding the CPP and related implementation issues
Monitoring CPP and other Clean Air Act litigation
Commenting on EPA’s Clean Energy Incentive Program
proposal
Working with NASEO to provide technical assistance for
energy efficiency projects
Upcoming NACAA Activities
Following FY 2017 Congressional appropriations process
Monitoring developments related to the Mercury and Air
Toxics Standards judicial and regulatory proceedings
Following developments related to the major source
Industrial Boiler rule judicial and regulatory proceedings
Working with EPA on addressing major sources of
hazardous air pollutants without listed source categories,
including methyl bromide fumigation
Working with state and local agencies as EPA implements
streamlined NATA review process
Upcoming NACAA Activities
Assisting members with implementing the NAAQS and
Regional Haze requirements
Coordinating and conducting, with ECOS and EPA, the next
annual review of progress on addressing the SIP backlog
Commenting on EPA’s proposed 2015 ozone NAAQS
implementation rule
Continuing efforts with WESTAR and NESCAUM to accelerate
retirement of old residential wood-burning devices
Advocating for EPA to undertake a rulemaking to establish a
national ultra-low NOx standard for onroad heavy-duty vehicles
and engines
Assisting states and localities in most effectively using
Mitigation Trust Funds allotted under the VW consent decree