Senator Jim Inhofe (R-OK) has introduced a resolution [pdf] under the Congressional Review Act to eliminate EPA’s mercury and air toxics standards for power plants. The resolution would immediately nullify historic health protections against mercury contamination, heart attacks, strokes, asthma attacks and premature deaths caused by air pollution from power plants. But the resolution's long term damage is less well understood and deserves equal scrutiny and criticism.
This week the Senate's clean air subcommittee held a hearing entitled “Oversight: Review of the Environmental Protection Agency's Mercury and Air Toxics Standards (MATS) for Power Plants.” In a move that surprised no one, Senator Inhofe used the occasion to promote his irresponsible Congressional Review Act (CRA) resolution. Inhofe submitted a written statement claiming his disapproval resolution would “send the rule back to EPA to be rewritten in a manner consistent with Congressional direction – namely, in a way that reduces emissions but that doesn't unnecessarily kill jobs so that others may profit.”
Inhofe’s claim mischaracterizes the legal implications of a CRA disapproval resolution and ignores the history of this dangerous legislative bludgeon. As I’ve written before, a CRA resolution of disapproval not only would void all of the health benefits of the MATS rule, but also would tie EPA’s hands going forward so that the agency could not issue any standards that are “substantially the same” as MATS.
The “substantially the same” language is taken from the Congressional Review Act itself [§801(b)(2)]. The legislative history and past use of CRA disapproval resolutions reveal a legal landscape wracked with uncertainty, delay and failure surrounding an agency's responsibility to re-issue standards to protect the American people.
What is clear, however, is that Senator Inhofe’s resolution of disapproval would have deadly consequences for our children’s health, and a devastating impact on EPA’s ability to protect our families in the future from the serious health consequences of mercury and other toxic air pollution.
EPA projects [pdf] that starting in 2016, the Mercury and Air Toxics Standards every year will prevent:
- up to 11,000 premature deaths;
- nearly 5,000 heart attacks;
- 130,000 asthma attacks;
- 5,700 hospital and emergency room visits; and
- 540,000 days when people miss work and school.
Senator Inhofe's resolution guarantees these harms would continue, at a minimum, for the two years that it would take EPA to adopt replacement standards, and probably longer as discussed below. His resolution would deny all Americans the enormous health benefits from reducing 90% of the mercury and 88% of the acid gas pollution from power plants that burn coal and oil.
Eighteen national medical organizations including the American Academy of Pediatrics, the American Heart Association, the American Lung Association and the American Nurses Association have urged [pdf] the Senate to vote “No” on Senator Inhofe’s resolution precisely because of these serious health impacts.
Looking past this support and the standards' enormous health benefits, let’s examine how CRA disapproval resolutions have worked in the past, and what that would mean were Inhofe's CRA resolution to become law. (Spoiler: it’s not good news if you like breathing clean air.)
Since its enactment in 1996 as part of the G.O.P. “Contract with America,” the CRA has been used successfully exactly once to disapprove a federal agency regulation. This infrequency itself is an indication of the CRA’s extreme approach, and shows that Congress recognizes the law is a drastic weapon that rarely deserves wielding.
In 2001, Congress enacted, and President George W. Bush signed into law, a joint CRA resolution disapproving the Occupational Safety and Health Administration’s (OSHA) regulations for workplace ergonomics standards. In the more than 10 years since that resolution of disapproval, OSHA has never once attempted to issue new standards relating to ergonomics.
Some have noted that “the continuous absence of ergonomics from the regulatory agenda for an entire decade following the veto of OSHA's rule–and well into the Obama Administration–arguably provides evidence of [OSHA’s] self-censorship.” [at 730]. Former Secretary of Labor Elaine Chao testified to precisely this point before the Senate Appropriations Committee in 2001 following the CRA veto, stating that a “great deal of resources, both in and outside the Department, went into creating the ergonomics standard. Under the CRA, the Department is now precluded from producing any standard that would be 'substantially the same'." Secretary Chao noted that as a result of the CRA, the Agency needed a clear directive “[b]efore we expend valuable – and limited – resources on a new effort.”
Members of Congress agreed. Senator Kennedy, in the debate over the CRA resolution targeting the ergonomic standards, said [pdf] “make no mistake about the resolution of disapproval that is before us. It is an atom bomb for the ergonomics rule. . . . Until Congress gives it permission, OSHA will be powerless to adopt an ergonomics rule . . . .” (at S1836).
OSHA documents and recent statements from the Obama administration indicate that the agency still has no intention of wading into the murky waters of what would or would not constitute a substantially similar rule when attempting to adopt new ergonomics standards.
Senator Kennedy's atom bomb metaphor was apt. A CRA disapproval resolution is completely destructive, voiding the targeted agency standard as a matter of law. But the resolution's long term consequences are like radioactive fallout, continually harmful in their own right. By killing health protections with a CRA resolution rather than ordinary legislation, the ban on future substantially similar standards serves to contaminate the underlying statute (like the Clean Air Act) with a fallout zone of legislative annulment and crippling uncertainty that prevents that statute's purposes from being carried out.
The example of OSHA’s ergonomics standards is instructive for a number of reasons. Not only does it provide a clear example of the agency paralysis that can result from a CRA resolution, but it also underscores the barren legal landscape surrounding the meaning of the language found in the Congressional Review Act. The Act provides that a “new rule that is substantially the same as [the disapproved] rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”
There is minimal legislative history for the CRA to help clear up this vague instruction. What exists was added to the congressional record weeks after the CRA became law, and consists primarily of a joint statement by three Senators. The Congressional Review Act originated in a title of the House bill that did not go through the committee process and was the subject of no floor debate.
As Senator Nickles noted in introducing the joint statement, “no other expression of [the CRA’s] legislative history exists other than the joint statement,” and the “joint statement is intended to provide guidance to the agencies, the courts, and other interested parties when interpreting the act's terms.”
The Senators’ joint statement indicates that “if an agency is mandated to promulgate a particular rule and its discretion in issuing the rule is narrowly circumscribed, the enactment of a resolution of disapproval for that rule may work to prohibit the reissuance of any rule.” EPA is required to promulgate the MATS under section 112 of the Clean Air Act, which lays out so-called “Maximum Achievable Control Technology” (MACT) standards as the prescribed regulatory method. As such, it is no logical reach to conclude that Inhofe’s CRA resolution “may work to prohibit the reissuance” of EPA’s MATS under the protective air toxics program that the authors of the 1990 Clean Air Act amendments intended.
Based on the paucity of legislative history or any prior case law on what qualifies as regulations that are "substantially the same," one can easily imagine the following situation: EPA’s MATS standards are invalidated through a CRA resolution, and the agency is sent back to promulgate new standards. The agency has no guidance on what standards would or would not be considered “substantially the same” as the now-invalidated MATS.
Suppose EPA re-issues new standards under section 112 of the Clean Air Act, like the MATS. After years of EPA effort, the utility industry challenges these new standards in court (just as industry is doing now with MATS).
The D.C. Circuit Court of Appeals in that case will for the first time have to determine what “substantially the same” means. Everything will ride on that court's determination. Suppose the court weighs the EPA standards, then interprets the above-mentioned post-hoc legislative history (“enactment of a resolution of disapproval for that rule may work to prohibit the reissuance of any rule”), and concludes that EPA may not issue section 112 air toxics standards for power plants at all. The court determines EPA's air toxics standards under that section of the law qualify as “substantially the same" as the disapproved MATS, due perhaps to their structure, form, and other factors inherent to section 112.
EPA once again would be sent back to recreate new standards – but without the statutory authority that the Clean Air Act intended for reducing toxic air pollution. And the spartan CRA disapproval resolution identifies no new or different Clean Air Act authority for EPA to invoke, nor does the resolution itself enact new authority to cut air toxins.
The agency still would have little understanding of the parameters of the “substantially the same” language. But now EPA would be stripped altogether of the intended authority to protect Americans from toxic air pollution, by a combination of the CRA resolution and the court's ruling.
EPA now would be forced to embark on a fourth round of rulemaking to reduce power plants' toxic air pollution, but without adequate authority. (The Bush administration's first attempt was resoundingly rejected by the courts as contrary to the Clean Air Act, the second attempt invalidated by a CRA resolution, and the third effort rejected by the courts as substantially similar to MATS).
In the meantime, following multi-year delays, broken promises to the American people and amnesty for big polluters, more children’s brains would be harmed by mercury pollution and Americans would suffer tens of thousands of preventable deaths and heart attacks, and hundreds of thousands of asthma attacks.
Now consider this less dire possibility: suppose that EPA re-issues section 112 air toxics standards that are still much weaker than the current MATS, but the court accepts that adopting standards under this section of the law does not necessarily make them "substantially the same" as the nullified standards.
The question then becomes how much weaker would these re-issued standards have to be to escape the ban on substantially similar rules? 10% weaker? 25% or 50%? How many more deaths must these weaker standards allow – 3,000 per year? 8,000? How much more mercury pollution would make these new standards not “substantially the same”?
These questions have no answers. There is no legal precedent a court could examine, the legislative history is limited and problematic, and the only previous example (ergonomics standards) is deeply troubling.
And here's the crucial point: Senator Inhofe cannot answer these questions either. In fact, no Senator, lobbyist, lawyer, or fortune teller can tell you what would happen should a disapproval resolution eliminate MATS and should EPA find itself needing to re-issue standards not considered substantially the same. No one can offer reassurances that the just-discussed situations will not happen.
And there's the rub. That is precisely why Senator Inhofe’s resolution of disapproval is so reckless and destructive. No Senator supporting Inhofe's CRA resolution can offer any reliable reassurance that EPA would be able to re-issue section 112 MACT standards that achieve many, most or all of the benefits of the disapproved standards.
Inhofe's recent written statement says that a disapproval resolution would "send the rule back to EPA to be rewritten in a manner consistent with Congressional direction," but the truth is that the resolution's terse one sentence provides no Congressional direction on how to rewrite standards. See for yourself [pdf].
Instead Senator Inhofe and CRA supporters are willing to play Russian roulette with our children's health, with generationally important protections against toxic air pollution.
Senators that resort to the CRA to kill agency rules such as EPA’s Mercury and Air Toxics Standards for power plants show no regard for what future standards will be, when they will deliver their protections or even whether there will be meaningful standards. The truth is that voting for the CRA resolution means killing the air toxics standards with no reassurance that they ever will be replaced or ever do the job that the Clean Air Act guarantees Americans.
It's no coincidence that announced supporters of a CRA resolution to dispense with MATS are not supporting any alternative legislation to reduce toxic air pollution from power plants just as effectively.
Senator Lisa Murkowski (R-AK) says she endorses Inhofe's disapproval resolution and supports “send[ing] the EPA back to the drawing board through a resolution to disapprove of the Utility MACT rule.” What she fails to note is that a successful resolution would send EPA back to a drawing board that is devoid of the tools necessary to protect Americans. Senators Murkowski and Inhofe would have voted to eliminate the original protections and to ruin the tools available to craft replacement protections. All without providing any solution of their own.
Toxic air pollution standards for power plants already are more than two decades overdue. We cannot afford to have Senators engage in brinkmanship on behalf of polluters that have failed to clean up their own act for too long. It is indefensible to sacrifice Americans' right to breathe clean air and our children’s health by using a legislative nuclear weapon with unavoidable radioactive fallout.
Senator Inhofe was recently quoted saying that EPA’s mercury and air toxics standards were “a killer” (subscr. required). While he’s right about the “killer” part, it’s not EPA’s standards that would kill, but the Senator’s own disapproval resolution that would mean thousands more lives lost and a radically uncertain future for any new standards aimed at protecting our health.