April 22, 2011

After months of short-term continuing resolutions and a near government shutdown, a deal was reached to fund the federal government for the remainder of Fiscal Year (FY) 2011. On April 15, the president signed (P.L. 112-10), which funds the government for the remainder of the fiscal year, ending Sept. 30, 2011. The bill passed the House by a large bipartisan majority of 260-167 with the support of 81 Democrats (59 Republicans opposed the measure). The bill also cleared the Senate overwhelmingly by a vote of 81-19.

The deal was struck and finalized moments before the most recent continuing resolution was set to expire the evening of Friday, April 8. In the waning minutes of that Friday evening, the House and Senate passed an additional one-week continuing resolution (CR) that included full funding for the Department of Defense. The move served to keep the government funded for an additional week to allow appropriations committee staff to draft the more complex long-term spending measure enacted April 15.

In total, the bill sets final 2011 spending levels at $1.049 trillion. This is a $78.5 billion decrease from Obama’s 2011 budget request and a $39.9 billion decrease from the $1.089 trillion 2010 spending bills, as enacted. Republicans had sought a $61 billion cut in spending, but negotiations with the Senate and White House scaled those demands back.

While the Senate and White House were successful in rescinding some of the massive cuts and riders proposed in the House-passed bill, the final agreement still included numerous significant cuts to science and environmental agencies. The funding decreases include $12 billion in cuts through three stopgap continuing resolutions and $28 billion in new cuts:

• The National Science Foundation received $6.9 billion; relatively level with the number it received in FY2010, when not adjusting for inflation, and $307 million more than the House proposed.
• EPA is funded at $8.7 billion, $1.6 billion below the FY2010 enacted level and $1.45 billion above H.R. 1, the Republican-driven CR.
• The National Oceanic and Atmospheric Administration (NOAA) is funded at $4.6 billion, $140 million below the enacted level and $245 million above H.R. 1.
• State Drinking Water and Waste Water Infrastructure funds are funded at $2.5 billion,  $997 million below the enacted level and $970 million above H.R. 1.
• EPA Science and Technology is funded at $815 million, $31 million below the enacted level and $55 million above H.R. 1.
• The Land and Water Conservation Fund is funded at $301 million, $149 million below FY2010 and $244 million above H.R. 1.
• The Bureau of Ocean Energy Management, Regulation and Enforcement is funded at $239 million, $58 million above the enacted level and $14 million above H.R. 1.
• The Army Corps of Engineers is funded at $4.9 billion, $578 million below FY2010.
• Energy efficiency and renewable energy is funded at $1.8 billion, $407 million below the enacted level.
• Science and ARPA-E programs are funded at $5 billion, $161 million above the enacted level and $997 million above H.R. 1.

The final agreement did not include any amendments/policy riders limiting EPA’s regulatory authority. Senate Majority Leader Harry Reid had previously voiced adamant opposition to the environmental policy riders and the White House had issued a veto threat against the ones limiting EPA’s ability to regulate greenhouse gases.

At the same time, the compromise included a rider supported by House Interior and Environment Appropriations Subcommittee Chairman Mike Simpson (R-ID) and Senator John Tester (D-MO) removing Endangered Species Act (ESA) protections for the gray wolf. The proposal marks the first time enacted legislation has ever removed ESA protections for a species. It is speculated that Senate Democratic leadership agreed to retain the measure in part to give Sen. Tester a political victory as he begins his 2012 reelection campaign.

The measure also prohibits funding from being used for NOAA’s climate service, as well as the Department of Interior’s “wild lands” policy to protect roadless areas in the West. The wild lands provisions had been pushed by Chairman Simpson as well as House Natural Resources Subcommittee on Natural Parks, Forests and Public Lands Chairman Rob Bishop (R-UT).

NOAA weather satellites axed

The long-term CR includes $382 million for NOAA new climate and weather satellites under the Joint Polar Satellite System (JPSS), roughly over a third of the president’s budget request for FY2011. Department of Commerce Secretary Gary Locke, who has jurisdiction over NOAA, asserts that nearly $1 billion is needed this year to prevent data gaps that could make it harder to predict the weather.

NOAA Secretary Jane Lubchenco has said that for every dollar not spent on JPSS this year, the agency would have to spend three to five dollars down the road because of canceled contracts and other problems. The program is already suffering because no increase was given to it in the stopgap funding measures that have kept the federal government operating since October.

Obama ‘czars’

House Republicans also were able to include a provision that defunds the administration’s four “czars,” which have been influential advisers to President Obama on key policy issues.

However, President Obama took the unique step of issuing a signing statement, a president’s declaration of constitutional interpretation of legislation he or she might sign into law. It essentially notified lawmakers that he would not abide by the section of the law defunding the czar positions, noting the constitutional separation of powers between the executive branch and the legislative branch.

“The president also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it,” Obama said in his signing statement. “Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”

In a sense, the move on both sides is somewhat symbolic as three of the four czars have moved out of their jobs: Climate czar Carol Browner resigned earlier this year, health czar Nancy-Ann DeParle was promoted to deputy White House chief of staff, and Obama’s urban affairs adviser, Adolfo Carrión, left the White House to become a regional director for the Department of Housing and Urban Development (HUD). Additionally, the White House recently announced that its auto czar Ron Bloom will no longer serve in that capacity, or at least title. In practice, the president also has the option to carry out the same activities by simply changing the titles of the people in the respective posts.

On April 15, the House passed its budget resolution for Fiscal Year (FY) 2012. The measure, while nonbinding in that it does not carry the force of law, serves as a blueprint for committee appropriators in crafting measures to fund the government for the upcoming fiscal year.

The bill seeks to cut discretionary spending levels either to FY2008 or below. The concurrent resolution passed by a vote of 235-193, with solid opposition among House Democrats. The measure is not expected to clear the Senate under its current authorized funding levels. The proposal includes $5.8 trillion in spending cuts over the next 10 years.

Under the Republican plan, overall discretionary funding for energy programs would fall to about $1 billion per year. President Obama’s 2012 budget, meanwhile, would provide about $8 billion to support clean energy research and deployment. The House report accompanying the budget bill notes that “basic research and development” funding would remain stable, but it also recommended “paring back spending in areas of duplication or non-core functions, such as applied and commercial research and development projects best left to the private sector.”

While the budget does not outline specific cuts to the Environmental Protection Agency, it notes that it “received a 36 percent budget increase in just two short years” through funding under the American Recovery and Reinvestment Act (P.L. 111-5). The House report also criticizes the Recovery Act for allocating “$80 billion of taxpayers’ dollars specifically for politically favored renewable-energy interests” and “blocking or delaying production both onshore and offshore [oil drilling], destroying jobs and idling American energy sources.”

A Democratic alternative measure, which would have added billions of dollars in clean energy and environmental spending, as well as roll back oil industry tax benefits, failed by a vote of 166-259. Twenty-three largely moderate Democrats joined all Republicans in voting against the bill.

For additional background on the House FY2012 budget proposal, see the April 8 edition of ESA Policy News: https://esa.org/pao/policyNews/pn2011/04082011.php

From April 13-15, the House Energy and Commerce Committee held three consecutive hearings on Environmental Protection Agency (EPA) rules that have been met with contention in the House. However, of the three meetings, the agency sent an administration witness to just one.

Committee Ranking Member Henry Waxman (D-CA) asserts that the Republican leadership on the committee is not giving agency officials adequate notice of upcoming hearings. “I am concerned that the Committee is providing insufficient notice to ensure that members have the benefit of EPA’s views on the complex and controversial legislative proposals that are being brought before the Committee,” asserted Waxman in the letter. EPA was given one week’s notice of three hearings scheduled for this week on the agency’s regulations.

Republican committee leaders have expressed concern over EPA’s failure to include agency representation during the hearings. The hearings focused on EPA plans to implement stricter limits on industrial air pollution, as well as its attempts to regulate the ash from coal-fired power plants.

During the first hearing, the Subcommittee on Energy and Power considered a draft bill that would change how the Clean Air Act applies to oil and gas drilling in federal waters. The draft measure is meant to speed along the permitting process and would exempt offshore drilling projects from future review by the Environmental Appeals Board.

The second hearing focused on H.R. 1391, a bill introduced by Rep. David McKinley (R-WV) that would stop EPA from classifying ash from coal-burning power plants as hazardous waste. A final decision on coal ash is seen as far off after EPA was faced with a deluge of comments on its proposal. During a previous hearing, Jackson said she did not expect a final rule by the end of this year. This was the only hearing to feature an EPA witness, Assistant Administrator Mathy Stanislaus.

The third hearing discussed EPA’s new limits on toxic pollution from industrial boilers and cement kilns, as well as a proposal to set similar rules for coal-fired power plants. The rules were ordered when the Clean Air Act was updated in 1990 but were stalled by legal wrangling. While public health groups have lauded the new rules, asserting they would prevent asthma, heart attacks and other illnesses, industry groups have argued that plants will be shut down and energy costs will rise due to the billions of dollars it would cost to implement the rules.

Waxman stated that during his years as a committee chairman he sought to alert administration officials to upcoming hearings several weeks ahead of time. As the former Chair of both the Oversight Committee and the Energy and Commerce Committee, I always tried to provide Administration witnesses with more than one week notice of a hearing,” he said. 

“Whether I sought the testimony of an administration official during the Bush administration or the Obama administration, my outreach would often begin weeks ahead of publicly noticing a hearing.  I believe this has been the general practice of chairmen of the Energy and Commerce Committee,” he continued.

To view the Waxman letter, see:
http://democrats.energycommerce.house.gov/sites/default/files/documents/Letter_04.12.11_EPA.pdf

In an April 21 op-ed published in the Wall Street Journal, former California Gov. Arnold Schwartzenegger voiced his opposition to efforts on Capitol Hill to block Environmental Protection Agency air pollution regulations.

In the article, Schwartzenegger notes that, when he came to California in the late 1960s, poor air quality would cause his eyes to water, while the air quality is much better now thanks to the Clean Air Act. “Today, I have tears in my eyes again, but for a very different reason. Some in Washington are threatening to pull the plug on this success,” Schwarzenegger writes.

“Since January, there have been more than a dozen proposals in Congress to limit enforcement of our clean-air rules, create special-interest loopholes, and attempt to reverse scientific findings. These attacks go by different names and target different aspects of the law, but they all amount to the same thing: dirtier air,” he continues.

On April 8, the House passed H.R. 910, the Energy Tax Prevention Act, which would amend the Clean Air Act in order to permanently prevent the EPA from regulating greenhouse gas emissions. Similar proposals have also gained traction in the Senate, yet none of the individual efforts have garnered a collective majority to pass.

Schwarzenegger is among the most prominent Republicans to lend his public support to EPA’s climate change program. As governor, he signed the state’s landmark climate change legislation into law, prompting EPA to name him a “Climate Change Champion” at a ceremony in Los Angeles in 2010.

“This is not an abstract political fight. If these proposals are passed, more mercury, dioxins, carbon pollution and acid gases will end up in the air our kids breathe. More Americans will get sick, end up in the hospital, and die from respiratory illness. We would be turning our backs on the sound science and medical advice that has reduced air pollution from large industrial sources by more than 70 percent since the late 1960s, according to the Environmental Protection Agency,” Schwarzenegger writes.

The Republican former governor urged political leaders to move forward to address air pollution in a bipartisan fashion: “I’m proud that it was a fellow California Republican, President Richard Nixon, who signed the Clean Air Act into law in 1970. In 1990, the act was strengthened by huge bipartisan majorities in Congress. Let’s keep that bipartisan tradition alive to make sure no more tears are shed over the clean air that the American people deserve.”

The Environmental Protection Agency (EPA) and the Tennessee Valley Authority (TVA) have reached a settlement to resolve alleged Clean Air Act violations at a number of its coal-fired plants in Alabama, Kentucky and Tennessee. The settlement, announced April 14, resolves a number of lingering violation complaints EPA brought against the company for allegedly failing to comply with Clean Air Act pollution control requirements at 11 of its plants.

The settlement will require TVA to invest an estimated $3-5 billion on new and upgraded pollution controls. According to EPA, once fully implemented, the pollution controls and other required actions will address 92 percent of TVA’s coal-fired power plant capacity, reducing TVA’s nitrogen oxides by 69 percent and sulfur dioxide by 67 percent.

The move by TVA will result in nearly one percent of the nation’s coal-fired power capacity going offline by the end of 2018, including 1,000 megawatts of coal-fired power TVA said it planned to retire last year. TVA will be closing 18 coal-fired boilers at three of its plants in Tennessee and Alabama as part of the agreement, affecting about 16 percent of its coal-fired electricity generating system.

TVA will also be required to inject $350 million into energy projects to slash pollution and save energy, with $240 million of that pot funding energy efficiency initiatives. A $40 million chunk of TVA’s funds will also go toward reducing greenhouse gases and other pollutants through waste heat recovery, hybrid electric charging stations, solar installations and waste treatment methane gas capture projects.

Under the agreement, TVA will also provide $1 million to the National Park Service and the National Forest Service to improve, protect, or rehabilitate forest and park lands that have been impacted by emissions from TVA’s plants, including Mammoth Cave National Park and Great Smoky Mountains National Park.

During an April 14 congressional hearing, House Energy and Commerce Environment and Economy Subcommittee Chairman John Shimkus (R-IL) suggested EPA was in violation of a January executive order asking agencies to review rules that may be overly burdensome. EPA Assistant Administrator Mathy Stanislaus maintained that the agency had conducted a review of the direct impact its regulations concerning the disposal of coal ash could have on industry.

EPA’s action stems from a massive 2008 coal ash spill in Tennessee that flooded surrounding land and a nearby river. Members aligned with the coal industry have touted H.R. 1391, a bill to prohibit the EPA from classifying ash from coal-burning power plants as a hazardous waste. The measure, introduced by Rep. David McKinley (R-WV), currently has 33 cosponsors, including seven Democrats.

EPA will be accepting public comments on the agreement for a 30-day period from the date notice of the agreement that will be published in the Federal Register.

More information on this settlement:
http://www.epa.gov/compliance/resources/cases/civil/caa/tvacoal-fired.html

More information on EPA’s civil enforcement program:
http://www.epa.gov/compliance/civil/index.html

Congressmen Roscoe Bartlett (R-MD) and Frank Wolf (R-VA) recently convened Town Hall meetings to discuss potential methods to combat the rise of an invasive stink bug in their congressional districts.

Brown marmorated stink bugs (BMSB) feed on numerous fruits and vegetables such as apples, cherries and tomatoes. Entomologists believe that the BMSB emigrated from their native Asia via in packing crates. They landed near Allentown, PA in the mid-1990s and from there have spread to 33 states and the District of Columbia. They have no known natural predators in the United States.

One study conducted in Georgia revealed a $27 million loss of crops in a single year due to the damage caused by the brown stink bug. Both members represent major apple-growing districts, who have seen local economies adversely impacted by the pests.

Reps. Bartlett and Todd Russell Platts (R-PA) recently formed an Invasive Species Caucus that plans to invite Agriculture Secretary Tom Vilsack and Members of Congress “to see the stink bugs in action” as a way secure additional funding for agricultural research. Unfortunately, the recent funding cuts enacted by Congress for FY2011 could put federal funding for current Agricultural Research Service efforts to combat the bug in jeopardy. In Sept. 2010, Reps. Bartlett and Platts also spearheaded a bipartisan letter to the U.S. Department of Agriculture (USDA) and the Environmental Protection Agency to call attention to the BMSB problem.

The options for getting rid of the pests are limited. One way, said Bartlett, is with a natural predator such as a small Asian parasitic wasp, but there is concern about introducing another non-native insect that could potentially attack more than just the stink bugs. Another option, the use of strong pesticides, also could have a number of adverse environmental impacts.

As recently as April 18, Rep. Wolf held a town hall meeting in Purcellville, VA featuring an entomologist from USDA, as well as a local university official to discuss current efforts to address the BMSB infestation. The USDA was also present March 18 for Rep. Bartlett’s “Stink Bug Summit” in Emmitsburg, MD.

Virginia Tech entomologist Chris Bergh, who was also present at the Rep. Wolf forum, stated he will submit a petition to EPA for expanded use of the insecticide dinotefuran in Delaware, Maryland, New Jersey, North Carolina, Pennsylvania, Virginia and West Virginia. EPA currently only allows the compound on vegetables, grapes and cotton.

To view the Bartlett/Platts letter, see:
http://bartlett.house.gov/UploadedFiles/Stink_Bug_Bartlett_Platts_et_al_USDA_EPA_letter_signers_09_24_2010.pdf

On April 14, House Transportation and Infrastructure Committee Chairman Bob Gibbs spearheaded a letter asking the Obama administration to end its efforts to broaden federal protection of wetlands.

The letter, signed by 147 Republicans and 23 Democrats, urges the administration to reconsider its proposed reinterpretation of the Clean Water Act’s reach over waters, streams, swamps, bogs and marshes. The draft guidance is currently under review by the White House Office of Management and Budget.

The lawmakers call the proposed guidance “an attempt to short-circuit the process for changing agency policy and the scope of the Clean Water Act jurisdiction without following the proper, transparent rulemaking process” required under the law.

Environmentalists and sportsmen who support the guidance, including Ducks Unlimited and the National Wildlife Federation, accused the letter writers of misleading lawmakers by implying that the proposal would not undergo a period of public comment and by failing to mention that the status quo interpretation was also the product of a guidance the Environmental Protection Agency (EPA) issued during the George W. Bush administration.

The guidance seeks to clarify the definition of waters covered under the 1972 law so that certain wetlands and seasonal streams are subject to pollution regulation, a regulatory maneuver long sought by environmentalists. Agriculture and mining industries believe policy change would significantly increase the scope of the Clean Water Act while bypassing the normal regulatory review process.

Both industry and environmental groups have urged EPA to begin a longer, more involved process of writing new Clean Water Act regulations, although environmental groups have said they support issuing new guidance in the meantime. EPA has not stated whether it would follow the guidance with new rulemaking.

To read the Gibbs letter, see:
http://republicans.transportation.house.gov/Media/file/112th/Water/2011-04-14-EPA_Guidance_Letter.pdf

On April 15, Senate Energy and Natural Resources Committee Ranking Member Lisa Murkowski (R-AK) released draft legislation that would require the federal government to develop a wide-ranging strategy to ensure the United States has access to a slew of essential minerals.

The draft bill directs the U.S. Geological Survey to establish a list of the nation’s minerals and develop a plan that ensures America’s mineral needs are met. The legislation comes amid growing concern that the United States lacks a domestic supply of rare-earth minerals, which are critical components of a slew of energy technologies like wind turbines and electric vehicles.

China currently controls 97 percent of the world’s rare-earth mineral supply. The country announced late last year that it would cut its export quotas of the minerals, raising concerns about U.S. dependence on Chinese supply.

Comments on the draft should be submitted with a one-page summary to critical_minerals@energy.senate.gov by 4 p.m. on May 6.  To access the draft and comment form, click the enclosed link:
http://murkowski.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=8ad4a0a0-2e05-418d-871f-88b12c8be927

On April 19, U.S. Department of Interior Sec. Ken Salazar announced that the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) has approved of the proposed 130-turbine Cape Wind project slated to become the nation’s first offshore wind project off Cape Cod, MA.

The agency in February announced it was developing an environmental assessment to determine whether any significant impacts had not been discussed as part of its 2009 review, including additional surveys and sampling, conflicts with aviation traffic and fishing use, emergency response, migratory birds, microclimate, oil within wind turbine generators and interagency consultations. Construction in 25 square miles of federal waters could begin as early as this fall, according to Interior. Developers say the project will take two years to build.

It is hoped that Cape Wind marks the beginning of a new economic sector made up of construction companies and manufacturers of wind turbine and transmission cables. BOEMRE Director Michael Bromwich said the project will accelerate interest in the budding offshore wind sector while spurring investments in critical infrastructure. According to Interior, production from the Cape Wind facility could provide roughly 75 percent of the electricity needs of Cape Cod and the islands of Martha’s Vineyard and Nantucket. On average, the project would generate enough energy to power more than 200,000 homes.

Despite overcoming regulatory hurdles, developers still must finance the project’s construction, which is expected to cost billions of dollars. There are also legal challenges from environmental groups that argue the project violates federal law and lacks safeguards to protect endangered shorebirds and migrating whales.

The approval comes as the Interior Dept. moves forward on separate environmental reviews of four wind-rich areas off the Atlantic Coast. BOEMRE, in partnership with the state of New Jersey, also recently announced that it will publish in the Federal Register a Call for Information and Nominations (Call) to gauge interest in future wind energy development on the Outer Continental Shelf (OCS) offshore New Jersey.

For more information about the Cape Wind energy project, including the COP, previous environmental reviews, Record of Decision, lease and related documents, please visit: http://www.boemre.gov/offshore/RenewableEnergy/CapeWind.htm.

The BOERME New Jersey wind energy Call is available for public inspection through the Federal Register website:  http://www.archives.gov/federal-register/public-inspection/index.html or
http://www.ofr.gov/OFRUpload/OFRData/2011-09779_PI.pdf Nominations, comments and information may be submitted electronically: www.regulations.gov. In the entry titled “Enter Keyword or ID,” enter BOEM–2011–0005, then click “search.”  Follow the instructions to submit public comments and view supporting and related materials available for this Call. BOEMRE will post all public comments, which must be received no later than June 6, 2011.  

Introduced in the House

H.R. 1452, the Uranium Resources Stewardship Act – Introduced April 8 by New Mexico Democrats Martin Heinrich and Ben Ray Luján, the bill would impose a 12.5 percent royalty on uranium. Their bill would also manage uranium mining on federal land through a competitive leasing program, much like coal mining in the Powder River Basin.

H.R. 1581, the Wilderness and Roadless Area Release Act – Introduced April 15 by House Majority Whip Kevin McCarthy (R-CA), the bill would open more than 40 million protected federal acres in the west to motorized recreation, new grazing, drilling or other activities. The legislation would overturn federal protection of million acres of wilderness study areas and roadless lands the Bureau of Land Management and Forest Service have each identified, but have not yet recommended for wilderness designations.

H.R. 1582, the Commonsense Ozone Regulation Act – Introduced April 15 by Rep. McCarthy, the bill would repeal a $29 million fine being levied on the residents of the Central Valley for violation of an Environmental Protection Agency air quality standard. It also postpones the implementation of new ozone standards until a Local Advisory Committee can study compliance feasibility. The bill has three original cosponsors: Reps. Jeff Denham (R-CA), Darrell Issa (R-CA) and Devin Nunes (R-CA).

Approved by House Committee

H.R. 1229, the Putting the Gulf of Mexico Back to Work Act – Introduced March 29 by House Natural Resources Committee Chairman Doc Hastings (R-WA), the bill seeks to increase production of domestic oil and gas off the coast of the Gulf of Mexico. During the same mark-up, the committee also approved H.R. 1230, the Restarting American Offshore Leasing Now Act and H.R. 1231, the Reversing President Obama’s Offshore Moratorium Act, complimentary legislation introduced by Chairman Hastings to expand oil drilling in the Gulf region as well as off the Pacific and Arctic coasts. The Natural Resources Committee approved the bills April 13.

Approved by Senate Committee

During an April 12 mark-up, the Senate Energy and Natural Resources Committee approved the following bills:

S. 99, the American Medical Isotopes Production Act of 2011 – Introduced by Chairman Jeff Bignaman (D-NM), the bill authorizes the Department of Energy (DoE) to work with U.S. companies to produce a reliable domestic supply of the molybdenum-99 isotope in order to avoid a future shortage. The bill also authorizes DoE to work with U.S. companies on a 14-year phase out of exporting highly enriched uranium, which is used to produce these isotopes.

S. 398, the  Implementation of National Consensus Appliance Agreement Act of 2011- Introduced by Chairman Bingaman, the bill seeks to would strengthen and improve energy efficiency standards for a number of consumer products.

S. 629, the Hydropower Improvement Act of 2011– Introduced by Ranking Member Lisa Murkowski (R-AK), the bill would advance hydropower project deployment by requiring better interagency coordination, funding competitive grants for increased production and investing in more research and development. Chairman Bingaman is an original cosponsor of the measure.