This week I testified before the House Energy & Power Subcommittee in opposition to H.R. 1633, the Farm Dust Regulation Prevention Act of 2011. In this post, I set forth my oral statement to the subcommittee, supplemented by some additional passages for context. My full written testimony is available here [pdf].
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The Farm Dust Regulation Prevention Act of 2011, H.R. 1633, is premised on a problem that does not exist – nonexistent EPA limits on farm dust. The devilish details of this poorly crafted bill, however, actually create more real problems than the imaginary problem the bill purports to solve. The bill is sweepingly overbroad, creating numerous damaging consequences that appear to be unintended but that would cause real harms to Americans.
The result would be increases in harmful soot pollution – not just coarse particulate matter (PM10) but deadly fine particulate matter (PM2.5) – across the country. And not just in rural America but urban and metropolitan areas too.
The legislation inexplicably eliminates, weakens or blocks federal Clean Air Act authority over overwhelmingly industrial soot pollution from power plants, manufacturing facilities, mines, other industrial facilities and even the nation's fleet of motor vehicles – all as a result of very overbroad and poor drafting.
Before you consider voting for a bill under the misconception that you are just addressing so-called "farm dust," I urge your staff to examine closely the testimony [pdf] by EPA Assistant Administrator Gina McCarthy and my own written testimony [pdf] to see whether you find fault there with any of the legal analysis or factual conclusions concerning the legislation. I will note that none of the other witnesses here today have contradicted those interpretations in their written testimony or opening statements.
Finally, I urge your attention to a careful reading of the written testimony of most of the majority witnesses as well Representative Kristi Noem’s statements [pdf] on the opening panel: each time any of that testimony complained of existing regulation of farm dust, they were complaining about state regulation, e.g., in Arizona or Illinois, not federal EPA regulation. Isn’t it paradoxical then that this bill, H.R. 1633, does not eliminate state regulation or monitoring of farm dust? I make this point not to suggest that Congress should trample on state decisions about how best to protect their citizens by reducing pollution; rather this point reveals the fundamental internal inconsistency and hypocrisy underlying H.R. 1633.
Some have criticized the merely “temporary” relief from (nonexistent and speculative) EPA regulation of farm dust provided by EPA Administrator Lisa Jackson’s recent commitment not to revise the existing PM10 standard or in any way regulate so-called farm dust. Yet H.R. 1633 provides only a 1-year delay to any future revision of the PM10 standard, whereas Administrator Jackson’s pledge would ensure no change to the PM10 standard for at least 5 years. Equally paradoxical.
Coarse particle pollution – also known as “soot” or by its legal term PM10 – is a mixture of materials such as metals, organics, smoke and acids. The particles are called “PM10” because they are microscopic particles that measure between 2.5 and 10 microns in diameter – so at their largest, these particles are still approximately seven times smaller than the diameter of one human hair.
In the last review of these PM10 standards in 2006, the Bush administration EPA found that major manmade sources of coarse particle pollution include coal and oil combustion sources, mining processes, other industrial processes, and construction activities. As a result, coarse particle pollution can contain fly ash, diesel soot, asbestos fibers, aluminum, and tire and brake material from vehicles. Particles at the lower end of the PM10 range are particularly dangerous because they can infiltrate the airways and lungs and get past the body’s natural defensive systems – leading to health problems including asthma attacks, cardiovascular and respiratory problems, and even premature death.
EPA has set health-based standards for particle pollution since 1971, and specifically for PM10 since 1987. The Clean Air Act requires EPA to review coarse particle standards and the science behind them every five years. The agency has not tightened health-based national standards for PM10 since 1987.
On October 14, 2011, EPA Administrator Lisa Jackson announced that she plans to maintain current coarse particle standards (set in 1987) without any change – meaning that current standards would stay the same for at least five years. To my knowledge, no one falsely accused the Reagan administration of regulating "farm dust" for setting PM10 standards at the exact same level that the Obama administration EPA has said it will maintain those standards.
For the past 41 years, EPA has set health-based national standards for coarse particle pollution based on science and medicine at a level necessary to protect public health with an adequate margin of safety. EPA’s health-based standards are the first step. The second step involves states primarily, but also EPA through some national standards, deciding which sources of coarse particle pollution to control in particular states.
In its 41-year history, federal control measures adopted by EPA have never covered farm dust. To be clear: there are no EPA farm dust regulations; there are no such proposed regulations; there are no EPA intentions for such regulations; EPA Administrator Lisa Jackson has specifically disavowed such intentions in Congressional testimony when asked directly by Congress; and the Administrator just last week announced that she would propose no change to the PM10 standards pursuant to the mandatory statutory review that had prompted the baseless hysteria over so-called “farm dust.”
Despite these facts, H.R. 1633 has been presented under the legislative guise of blocking nonexistent and unplanned EPA regulation of so-called “farm dust.” I invite any member or witness to identify an EPA regulation in the Code of Federal Regulations where EPA imposes limits on farm dust. There is none.
Since several members have invoked the specter of environmental groups suing EPA to force federal regulation of farm dust, I invite any member or witness to identify any statutory authority to compel EPA to impose federal limits on farm dust. There is no such authority.
Finally, I invite any member to identify any job in American that has been lost due to EPA limits on farm dust. There is none.
If Congress truly wanted to address farm dust, all it would take is a simple sentence that says “EPA shall not impose limits on farm dust if states are doing so already.” Some members would like to suggest that this is all H.R. 1633 does, but that is plainly and profoundly wrong. The bill does far more and far worse than that.
Here’s what the legislation actually does:
- it fundamentally rewrites and weakens the Clean Air Act to interfere with EPA’s study of the science of coarse particle pollution;
- it introduces a vague and expansive definition of “nuisance dust” that would exempt much dangerous PM10 and PM2.5 industrial pollution across the United States from Clean Air Act regulation; and
- it makes it more difficult for states to meet health-based air quality standards to protect their citizens against PM10 and PM2.5 pollution.
Here is a quick section-by-section analysis of the legislation.
Section 1 is the only part of the bill that mentions “farm dust”– and this unenforceable section only lists the bill’s title.
Section 2 of the bill prevents EPA from even conducting the process to study or update health standards for soot pollution – despite the fact that EPA Administrator Lisa Jackson has announced that EPA will not change the standards for coarse particle pollution during this 5-year review cycle.
Further, as a result of what appears to be the unintended consequences of vague drafting – the bill could be read to prevent implementation and enforcement of past revisions to the PM10 standards. This includes the most recent revisions to those standards in 2006, by the Bush administration, which revised soot standards to eliminate annual standards for coarse particle pollution.
These potential rollbacks, along with EPA’s announcement that it will propose to maintain current standards should dissuade members of Congress from voting for this bill. If it does not, the broad and undefined language in Section 3 surely should.
Section 3 fundamentally rewrites and weakens the Clean Air Act by introducing sweeping, vague and undefined terms that strip EPA of federal Clean Act authority over particulate matter pollution, PM10 and PM2.5, across the country. This section relies upon broad and vague terms like “nuisance dust,” “natural materials,” “windblown dust” and “rural areas” that in combination would exempt from Clean Air Act regulation both PM10 and PM2.5 industrial pollution from sources such as power plants, mining operations, diesel vehicles, and other industrial activities that have nothing to do with farms. The scope of these terms is potentially so expansive that the “exemptions” of section 3 could entirely swallow EPA’s ability to set or enforce health-based standards for particulate matter of any size.
These exemptions for particulate matter of all sizes would require EPA to pretend that much of the soot pollution registered by monitors daily does not exist as a matter of federal law. Accordingly, since pollution from exempted sources of “nuisance dust” would be treated as if it didn’t exist, it would be even more difficult, if not impossible, for states with industries whose emissions constitute “nuisance dust” to ever meet federal health-based standards under the Clean Air Act.
This bill proves the wisdom of two legal axioms: bad facts make bad laws, and poorly drafted laws produce unintended consequences. There are no EPA farm dust regulations – planned, proposed or actual – so it should come as little surprise that a law aimed at eliminating a nonexistent problem should be such a badly designed bill: sweepingly over-inclusive, creating unintended consequences, causing more problems than it solves, and increasing harmful air pollution and health hazards for the American people.
Elsewhere in the House this week, the Judiciary Committee is considering the even more misconceived “REINS Act” [pdf], which purports to address and rein in excessive delegations of congressional authority to federal agencies. (My colleague, David Goldston, and I have criticized the REINS Act here, here and here.) And yet – the Energy and Commerce Committee is considering a bill, H.R. 1633, that engages in excessive delegation of sweeping and vague authorities to deregulate industrial pollution across America from the Clean Air Act. Equally paradoxical.
There are real problems that Americans desperately need Congress to address rather than imaginary problems through a badly drafted and deeply harmful bill like H.R. 1633.