Epa Regulatory Overreach: Impacts On American Competitiveness

EPA REGULATORY OVERREACH:
IMPACTS ON AMERICAN COMPETITIVENESS

HEARING
BEFORE THE
COMMITTEE ON SCIENCE, SPACE, AND

TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
June 4, 2015
Serial No. 11421
Printed for the use of the Committee on Science, Space, and Technology
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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma
EDDIE BERNICE JOHNSON, Texas
F. JAMES SENSENBRENNER, JR.,
ZOE LOFGREN, California
Wisconsin
DANIEL LIPINSKI, Illinois
DANA ROHRABACHER, California
DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas
SUZANNE BONAMICI, Oregon
MICHAEL T. MCCAUL, Texas
ERIC SWALWELL, California
STEVEN M. PALAZZO, Mississippi
ALAN GRAYSON, Florida
MO BROOKS, Alabama
AMI BERA, California
RANDY HULTGREN, Illinois
ELIZABETH H. ESTY, Connecticut
BILL POSEY, Florida
MARC A. VEASEY, TEXAS
THOMAS MASSIE, Kentucky
KATHERINE M. CLARK, Massachusetts
JIM BRIDENSTINE, Oklahoma
DON S. BEYER, JR., Virginia
RANDY K. WEBER, Texas
ED PERLMUTTER, Colorado
BILL JOHNSON, Ohio
PAUL TONKO, New York
JOHN R. MOOLENAAR, Michigan
MARK TAKANO, California
STEVE KNIGHT, California
BILL FOSTER, Illinois
BRIAN BABIN, Texas
BRUCE WESTERMAN, Arkansas
BARBARA COMSTOCK, Virginia
DAN NEWHOUSE, Washington
GARY PALMER, Alabama
BARRY LOUDERMILK, Georgia
(II)
CONTENTS
June 4, 2015
Page
Witness List .............................................................................................................

Hearing Charter ......................................................................................................
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3
Opening Statements
Statement by Representative Lamar S. Smith, Chairman, Committee on
Science, Space, and Technology, U.S. House of Representatives .....................
Written Statement ............................................................................................
Statement by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives ....
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Witnesses:
Mr. Bob Kerr, President, Kerr Environmental Services Corp.
Oral Statement .................................................................................................
Mr. Bill Kovacs, Senior Vice President, Environment, Technology and Regulatory Affairs, U.S. Chamber of Commerce
Oral Statement .................................................................................................
Dr. Jerome A. Paulson, FAAP Chair, American Academy of Pediatrics Council
on Environmental Health Executive Committee
Oral Statement .................................................................................................
Mr. Ross Eisenberg, Vice President, Energy and Resources Policy, National
Association of Manufacturers
Oral Statement .................................................................................................
Discussion .................................................................................................................
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Appendix I: Answers to Post-Hearing Questions

Mr. Bill Kovacs, Senior Vice President, Environment, Technology and Regulatory Affairs, U.S. Chamber of Commerce ........................................................
Dr. Jerome A. Paulson, FAAP Chair, American Academy of Pediatrics Council
on Environmental Health Executive Committee ...............................................
Mr. Ross Eisenberg, Vice President, Energy and Resources Policy, National
Association of Manufacturers ..............................................................................
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Appendix II: Additional Material for the Record

Documents submitted by Representative Lamar S. Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives ....
Documents submitted by Representative Eddie Bernice Johnson, Ranking
Member, Committee on Science, Space, and Technology, U.S. House of
Representatives ....................................................................................................
(III)
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IV
Page
Documents submitted by Representative Donna F. Edwards, Committee on

Document submitted by Representative Suzanne Bonamici, Committee on
Document submitted by Representative Don S. Beyer, Committee on Science,
Space, and Technology, U.S. House of Representatives ....................................
Document submitted by Representative Mark Tonko, Committee on Science,
Document submitted by Representative Gary Palmer, Committee on Science,
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EPA REGULATORY OVERREACH:

IMPACTS ON AMERICAN COMPETITIVENESS
THURSDAY, JUNE 4, 2015
COMMITTEE
HOUSE OF REPRESENTATIVES,
SCIENCE, SPACE, AND TECHNOLOGY,
Washington, D.C.
ON
The Committee met, pursuant to call, at 10:09 a.m., in Room

2318 of the Rayburn House Office Building, Hon. Lamar Smith
[Chairman of the Committee] presiding.
(1)
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Chairman SMITH. The Committee on Science, Space, and Technology will come to order.
Without objection, the Chair is authorized to declare recesses of
the Committee at any time.
Welcome to todays hearing titled EPA Regulatory Outreach: Impacts on Industry. I am going to recognize myself for five minutes
for an opening statement, and then Ill do the same for the Ranking Member.
Over the last year, the Environmental Protection Agency has released some of the most expensive and expansive regulations in its
history. These rules will cost billions of dollars, place a heavy burden on American families, and diminish the competitiveness of
American industry around the world.
Todays hearing will examine this Administrations unprecedented regulatory agenda and the manner in which EPA has used
secret science, questionable legal interpretations, and flawed analysis to promote these rules. Specifically, we will hear from our witnesses about how the Clean Power Plan, the Ozone National Ambient Air Quality Standards, and the definition of the Waters of the
United States adversely impact the American economy with little
benefit to our environment.
The so-called Clean Power Plan is a power grab that will force
states to reach arbitrary and often impossible targets for carbon
emissions. These measures will impose tremendous costs on everyday Americans. It will shut down large numbers of affordable
power plants, which increases the cost of electricity and puts the
reliability of the electric grid into question. The Clean Power Plan
will have an even greater impact on those who live on fixed incomes, such as the elderly and the poor, who are the most vulnerable to increases in the price for some of our most basic necessities
like electricity. EPA asserts that the Clean Power Plan will help
combat climate change. However, EPAs own data demonstrates
that is not the case. The EPA data shows that this regulation
would eliminate much less than one percent of global carbon emissions and would reduce sea-level rise by only 1/100th of an inch,
the thickness of three sheets of paper. This rule represents massive
costs without significant benefits. In other words, its all pain and
no gain.
EPA also seeks to impose stricter ozone standards by lowering
the standard from the current 75 parts per billion to between 65
70 ppb. Analysis conducted by EPA shows that this rule would cost
at least $15 billion annually, and industry groups believe the costs
will be even greater. Once again, these costs come with few benefits. In fact, EPAs own figures show that since 1980, ozone levels
have decreased by 33 percent. Todays air quality will continue to
improve with the expected development of practical new technologies.
Last week, the EPA submitted its final rule to define the Waters
of the United States. This is the EPAs latest attempt to expand
its jurisdiction and increase its power to regulate American waterways, even if that means invading Americans backyards. The rule
will make it difficult for farmers and others to improve their land
and expand their businesses. While the draft rule left many questions as to which bodies of water the EPA will claim under its ju-
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risdiction, the final rule is more specific. As many had predicted,
EPA has claimed unprecedented jurisdiction over many different
kinds of water, including those that temporarily result from a
drizzle. The EPA actually used that word, drizzle. EPA will now
have the authority to oversee features such as prairie potholes and
even areas that are not always filled with water. Under this regulatory regime, Americans will be subject to required permits and
the constant threat of government intervention. The onslaught of
EPA regulations continues.
I look forward to hearing from todays witnesses about the impact of these burdensome EPA regulations.
[The prepared statement of Chairman Smith follows:]
PREPARED STATEMENT
OF
CHAIRMAN LAMAR S. SMITH
Over the last year, the Environmental Protection Agency (EPA) has released some
of the most expensive and expansive regulations in its history.
These rules will cost billions of dollars, place a heavy burden on American families and diminish the competitiveness of American industry around the world.
Todays hearing will examine this unprecedented regulatory agenda and the manner in which EPA has used secret science, questionable legal interpretations, and
flawed analysis to promulgate these rules.
Specifically, we will hear from our witnesses about how the Clean Power Plan,
the Ozone National Ambient Air Quality Standards and the definition of the
Waters of the United States unreasonably impact the American economy with little benefit to our environment.
The so-called Clean Power Plan, proposed by EPA last June, is a power grab that
will force states to reach arbitrary and often impossible targets for carbon emissions.
These measures will impose tremendous costs on everyday Americans. It will shut
down large numbers of affordable coal-fired power plants, which increases the cost
of electricity and puts the reliability of the electric grid into question.
The Clean Power Plan will have an even greater impact on those who live on fixed
incomes, such as the elderly and the poor, who are the most vulnerable to increases
in the price for some of our most basic necessities like electricity.
EPA asserts that the Clean Power Plan will help combat climate change. However, EPAs own data demonstrates that is not the case.
Even EPA data shows that this regulation would eliminate much less than one
percent of global carbon emissions and would reduce sea level rise by only 1/100th
of an inch (according to NERA economic consulting), the thickness of three sheets
of paper.
This rule represents massive costs without significant benefits. In other words, its
all pain and no gain.
EPA also seeks to impose stricter ozone standards by lowering the standard from
the current 75 parts per billion (ppb) to between 6570 ppb. Analysis conducted by
EPA shows that this rule would cost at least $15 billion annually, and industry
groups believe the costs will be even greater.
Once again, these costs come with few benefits. In fact, EPAs own figures show
that since 1980, ozone levels have decreased by 33 percent.
Todays air quality will continue to improve with the expected development of
practical new technologies.
Just last week, the EPA submitted its final rule to define the Waters of the
United States.
This is the EPAs latest attempt to expand its jurisdiction and increase its power
to regulate American waterways-even if that means invading Americans own backyards.
The rule will make it difficult for farmers and builders to improve their land and
expand their businesses.
While the draft rule left many questions as to which bodies of water the EPA will
claim under its jurisdiction, the final rule is more specific. As many had speculated,
EPA has claimed unprecedented jurisdiction over many different kinds of water, including those that temporarily result from a drizzle.
EPA will now have the authority to oversee features such as prairie potholes
and even areas that are not always filled with water.
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Under this regulatory regime, Americans will be subject to stringent permitting
and the constant threat of government intervention. The onslaught of EPA regulations continues.
I look forward to hearing from todays witnesses about the impact of these burdensome EPA regulations.
Chairman SMITH. I now recognize the Ranking Member, the gentlewoman from Texas, Ms. Johnson, for her opening statement.
Ms. JOHNSON OF TEXAS. Thank you very much, Mr. Chairman.
Unfortunately, todays hearing is just a continuation of the same
familiar theme we have heard in this Congress: resistance to the
EPAs efforts to carry out its mission to protect the nations environment and the public health, resistance that is unsupported by
scientific evidence.
It thus should not be a surprise that this hearing, like all others
on EPAs activities, will fail to offer any constructive solutions for
lowering ozone and cutting carbon emissions. Instead, it will serve
as one more platform for industry to voice its opposition to regulations that will make the air we breathe cleaner, the water we drink
safer, and that will help address the looming challenge of climate
change. Just this week, as a matter of fact, about 30 leaders of denominations throughout the African American community, the national leadership, came to the Congressional Black Caucus to announce their national movement to support cleaning up the environment.
And while Congressional oversight of EPAs activities is appropriate, the hearings held by this Committee have not met standards of serious oversight. For example, this Committee has failed
to bring the expertise necessary to truly examine the research, policies and technologies needed to confront the most important environmental issue of our time: climate change. Instead, the so-called
experts the Majority has brought before this Committee too often
represent views from outside the mainstream of the scientific community and are industry opponents with a vested interest in maintaining the status quo. It is puzzling to me that our Committee is
going down such a path just as other nations and many in the business community are stepping up to address the challenge presented
by climate change. Those nations and those businesses are looking
to the United States government to provide leadership.
Just last week, six major oil companies, including BP, Shell, and
Total sent a letter to the United Nations recognizing climate
change and the role of their companies in lowering carbon emissions. In the letter they state: For us to do more, we need governments across the world to provide us with clear, stable, long-term,
ambitious policy frameworks. This would reduce uncertainty and
help stimulate investments in the right low-carbon technologies
and the right resources at the right pace. It is unfortunate that
instead of contributing to the development of this long-term policy
that these oil companies are asking Congress for, this Committee
has too often become a forum for climate change denial.
With respect to todays hearing, it is clear that a cleaner environment and a stronger economy are not mutually exclusive. Stricter
pollution limits have historically led to innovation and the creation
of new technologies that have wound up creating jobs while protecting our environment. I am confident American industry will
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continue that record of innovation and job creation as new environmental standards are adopted.
And finally, I am proud to say that I was a nurse before I entered politics, and I can think of no mission of the federal government that is more important or noble than EPAs mission to protect
human health and the environment. I look forward to Dr. Paulsons
testimony on the public health benefits of the environmental regulations we will be discussing today.
In closing, I look forward to the day when this Congress and this
Committee will step back from the counterproductive opposition to
EPAs efforts to carry out its statutorily mandated mission. It is
not a good use of our time, and I hope that we can instead come
together to advance our economy and a cleaner environment and
a healthier public.
Mr. Chairman, before I yield back, Id like to enter into the
record the letter that I mentioned in my remarks. I thank you, and
I yield back the balance of my time.
[The prepared statement of Ms. Johnson of Texas follows:]
STATEMENT
COMMITTEE RANKING MEMBER

EDDIE BERNICE JOHNSON
SUBMITTED BY FULL
Thank you, Mr. Chairman. Unfortunately todays hearing is just

a continuation of the same familiar theme we have heard in this
Congressresistance to the EPAs efforts to carry out its mission
to protect the nations environment and the public healthresistance that is unsupported by the scientific evidence.
It thus should not be a surprise that this hearing, like all the
others on EPAs activities, will fail to offer any constructive solutions for lowering ozone or cutting carbon emissions. Instead, it will
serve as one more platform for industry to voice its opposition to
regulations that will make the air we breathe cleaner, the water
we drink safer, and that will help address the looming challenge
of climate change.
And while congressional oversight of EPAs activities is appropriate, the hearings held by this Committee have not met the
standard of serious oversight. For example, this Committee has
failed to bring in the expertise necessary to truly examine the research, policies, and technologies needed to confront the most important environmental issue of our timeclimate change. Instead,
the so-called experts the Majority has brought before this Committee too often represent views from outside the mainstream of
the scientific community or are industry opponents with a vested
interest in maintaining the status quo.
It is puzzling to me that our Committee is going down such a
path just as other nations and many in the business community
are stepping up to address the challenge presented by climate
change. Those nations and those businesses are looking to the
United States government to provide leadership. Just last week, six
major oil companies, including BP, Shell, and Total sent a letter to
the United Nations recognizing climate change and the role of their
companies in lowering carbon emissions. In the letter they state:
For us to do more, we need governments across the world to provide us with clear, stable, long-term, ambitious policy frameworks.
This would reduce uncertainty and help stimulate investments in
10
the right low-carbon technologies and theright resources at the
right pace.
It is unfortunate that instead of contributing to the development
of the long-term policies that these oil companies are asking Congress for, this Committee has too often become a forum for climate
change denial.
With respect to todays hearing, it is clear that a cleaner environment and a strong economy are not mutually exclusive. Stricter
pollution limits have historically led to innovation and the creation
of new technologies that have wound up creating jobs while protecting our environment. I am confident American industry will
continue that record of innovation and job creation as new environmental standards are adopted.
Finally, I am proud to say that I was a nurse before I entered
politics. And I can think of no mission of the federal government
that is more important or noble than EPAs mission to protect
human health and the environment. I look forward to Dr.
Paulsons testimony on the public health benefits of the environmental regulations we will be discussing today.
In closing, I look forward to the day when this Congress and this
Committee will step back from the counterproductive opposition to
EPAs efforts to carry out its statutorily mandated mission. It is
not a good use of our time, and I hope that we can instead come
together to advance our economy and a cleaner environment and
healthier public.
Mr. Chairman, before I yield back Id like to enter into the record
the letter that I mentioned in my remarks. Thank you and I yield
back the balance of my time.
Chairman SMITH. Without objection.
[The information appears in Appendix II]
Chairman SMITH. And while were asking unanimous consent to
put items into the record, Id like to ask unanimous consent to put
into the record letters or documents we received from the Small
Business and Entrepreneurship Council, from the American Chemistry Council, and that does it for right now.
Chairman SMITH. Thank you, Ms. Johnson, for your opening
statement.
Let me go on and introduce our witnesses today. Our first witness is Mr. Bob Kerr, President of Kerr Environmental Services
Corporation. Mr. Kerr has 29 years experience as an environmental consultant specializing in stream and wetland mitigation,
natural resources consulting, National Environmental Policy Act
compliance, and environmental contaminant studies. Mr. Kerr received his bachelors degree in biology from the State University of
New York at Fredonia and his masters degree in marine environment studies from Stony Brook University.
Our next witness today is Mr. Bill Kovacs, Senior Vice President
for Environment, Technology and Regulatory Affairs at the U.S.
Chamber of Commerce. Mr. Kovacs initiates and leads multidimensional national issue campaigns on comprehensive energy legislation, complex environmental rulemakings, telecommunications reform, emerging technologies, and the systematic application of
sound science to the federal regulatory process. Mr. Kovacs re-
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ceived his bachelors degree from the University of Scranton and
his law degree from Ohio State University.
Our next witness is Dr. Jerome Paulson, Chair of the American
Association of Pediatrics Council on Environmental Health Executive Committee. Dr. Paulson also directs the Mid-Atlantic Center
for Childrens Health and Environment, a federally funded environmental health specialty unit that provides education and outreach
to health professionals, parents and the community. In addition,
Dr. Paulson has served as a Special Assistant to the Director of
Centers for Disease Controls National Center on Environmental
Health. Dr. Paulson received his bachelors degree in biochemistry
from the University of Maryland and his M.D. from Duke University.
Our final witness today is Mr. Ross Eisenberg, Vice President of
Energy and Resources Policy at the National Association of Manufacturers. Mr. Eisenberg oversees NAMs energy and environmental
policy work and has expertise on issues that range from energy
production and use to air and water quality, energy efficiency, and
environmental regulation. Before joining NAM in 2012, Mr.
Eisenberg spent more than five years as Environmental and Energy Counsel at the U.S. Chamber of Commerce. Mr. Eisenberg received his bachelors degree in English and political science from
Emery University and his law degree from Washington Lee University School of Law.
We welcome you all and look forward to your testimony today,
and Mr. Kerr, well begin with you. Make sure your mic is on there.
TESTIMONY OF MR. BOB KERR, PRESIDENT,
KERR ENVIRONMENTAL SERVICES CORP.
Mr. KERR. Thank you. Chairman Smith, Members of the Committee, I appreciate the opportunity to testify today. My name is
Bob Kerr, and Im President of Kerr Environmental Services, an
environmental consulting and water resources engineering firm located in Virginia Beach, Virginia. Ive provided wetlands consulting
and permitting assistance throughout Virginia and North Carolina
for more than 26 years.
Since 1972, the Clean Water Act has played an important role
in improving the quality of the nations water resources yet there
continues to be frustration and uncertainty over the scope of the
Act and the appropriate role of the federal government in protecting the nations waters.
Decades after the enactment of the Clean Water Act, there still
is no easy way to determine if certain types of waters are subject
to state law or federal mandates. EPA and the Corps recently
issued a rule intended to clarify what is subject to federal regulation. Unfortunately, the rule does not provide the needed predictability and certainty in the permitting process. It fails to follow the
intent of Congress, ignores Supreme Court precedent, and does not
respect the authority of the state to regulate their land and water
resources.
The agencies claim the rule does not expand federal jurisdiction
but thats simply not the case. The rule establishes a broader definition of tributaries, which, for the first time, includes ditches
and streams that only flow after it rains. It also allows the agen-
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cies to regulate intermittent and ephemeral drainages by rule
classifying them as tributaries whereas before the agencies required an analysis of their significant nexus to traditional navigable waters before federal jurisdiction could be established. While
this certainly provides clarity, it does not limit jurisdiction.
The new definition of neighboring includes areas that were not
previously federally regulated such as non-wetlands located more
than a quarter of a mile from a traditional navigable water or similar features located within a floodplain and up to 1,500 feet from
the feature. Moreover, the agencies retain extensive authority to
interpret certain ambiguous definitions as they see fit. This will
allow for the inconsistent application of the rule among regulators
both within a Corps district and across the country. Ultimately, the
rule will lead to more litigation, project delays, more landowners
needing permits, and the higher costs of permitting avoidance and
mitigation.
You might look at the rule and think its a dream come true for
a consultant like me because more regulation will mean more business. I fear the exact opposite. Under the new rule, Ill need to
complete more jurisdictional determinations, will have to conduct
multiple tests to determine whether a feature qualifies as a water
of the United States. Itll take additional time and resources to
complete the tests, and that will cost clients more money. Not
knowing their permit costs in advance increases financial risk for
my clients. As such, clients may notmay decide not to pursue
some projects as a result.
Some cases may also be so complex that they are too time-consuming or costly to resolve. In such cases, clients have the option
to concede federal jurisdiction and proceed with permitting and
mitigation through a preliminary jurisdictional determination, but
that isnt a fair program to me nor does it keep the legislative intent of the Clean Water Act, and thats not good for the economy
as a whole.
To start to fix this, we need a new rule that respects the states
role in regulating waters. Many aspects of the Clean Water Act are
vague but its clear that Congress intended to create a partnership
between the federal agencies and state government to protect our
nations water resources. The Supreme Court has twice affirmed
that the Clean Water Act places limits on federal authority. There
is a point where federal authority ends and state authority begins.
The final rule published by the EPA and Corps would assert jurisdiction over many features that are isolated, carry only minor volumes of water, or have only theoretical impacts on traditional navigable waters. These waters are properly regulated by the states.
The federal government cannot just assert jurisdiction over everything, yet that appears to be the agencies solution, and many
of the bright-line limits written into the rule seem so large in scale
or so vague as to have created no actual limitation. Precedent suggests that the courts will again have to rein in the overarching rule
but only after countless years of litigation. The wiser path forward
is for Congress to act now. Lets get the agencies to withdraw the
rule, resolve the problems, provide the clarity we need as to what
constitutes a water of the United States.
Thank you again for the opportunity to testify today.
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[The prepared statement of Mr. Kerr follows:]
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Chairman SMITH. Thank you very much.
Mr. Kovacs.
TESTIMONY OF MR. BILL KOVACS,
SENIOR VICE PRESIDENT, ENVIRONMENT,
TECHNOLOGY AND REGULATORY AFFAIRS,
U.S. CHAMBER OF COMMERCE
Mr. KOVACS. Thank you, Chairman Smith and Ranking Member

Johnson and Members of the Committee.
For my opening remarks today, Im going to address the question
many of us have been asking for a while: How did an Environmental Protection Agency acquire such great power over energy
policy, state waters, land use, and the nations economic development at the expense of states which implement over 90 percent of
the federally delegated programs and are the main point of contact
for the regulated community?
The purpose of regulation is to implement the laws passed by
Congress in the most efficient way to achieve the Congressional intent. In the 1970s, Congress when it enacted these environmental
laws had very little knowledge of how to protect the environment.
It also recognized that while it was protecting the environment, it
would cause, and I emphasize, they recognized in 1970 it would
cause plants to shut down, jobs to be lost, and harm to impacted
communities. But to deal with this dilemma, Congress gave the
EPA very broad authorities to protect the environment but also
mandated that the EPA continuously evaluate the potential loss or
shifts in employment resulting from the regulations so that Congress could make corrections based on actual input.
Congress also authorized citizen suits by granting access to the
courts to anyone protecting the environment, in effect granting special environmental enforcement authorities to private-sector entities. Then in 1984, the Supreme Court granted deference to EPAs
decisions where Congress was silent or vague on any of the statutory provisions in thousands of pages of legislation. In essence, the
Supreme Court authorized EPA to fill in all of the gaps in the legislation. Almost from the beginning, EPA missed a high percentage
of its Congressionally mandated deadlines. Since EPA misses between 84 percent and 98 percent of its deadlines, depending on
which study you believe, citizen suits were brought to force the
EPA to comply with the deadlines. Rather than arguing it had discretion in meeting the conflicting priorities, EPA entered into consent decrees with advocacy groups agreeing to implement the regulations requested, thereby letting these groups set the policy for the
Agency and the priorities.
The best illustration of the impact of the sue-and-settle process
is that between 2000 and 2013 time frame, approximately 425
agencies issued almost 50,000 regulations but only 30 of those regulations were costing over a billion dollars a year to the regulated
community or to the states, and EPA issued 17 of the 30, and those
17 account for 82 percent of all the costs for all 30 rules. Beginning
in 1980 and onward, Congress passed numerous regulatory laws to
provide guidance to the agencies as to the type of information needed to be developed by the agency to ensure that it complied with
Congresss intent to have a sound rulemaking record based on fact,
27
science and economics. These statutes were the Information Quality Act, the Regulatory Flexibility Act, and unfunded mandates reform. EPA routinely ignores Congressional mandates, and, more
importantly, it has never started in 35 years a continuing evaluation of the employment impacts of its regulations, thereby leaving
Congress without the information needed to legislate.
Therefore, the condition we have today and the circumstances we
find ourselves in is we have an agency that has been given broad
delegated authority to make policy. You have a federal judiciary
that has said that anything that you dont describe in clear terms,
that they havethat based on deference, they have the authority
to fill in the legislative gaps.
The development of secret sue-and-settle agreements allows
these advocacy groups to set agency policy, and we have an agency
that for 35 years has refused to evaluate the impact of regulations
on employment. We also have an agency that routinely ignores
Congressional mandates to try tothat fix the regulatory record
through having the agency talk to small businesses, find out what
the unfunded mandates are on state and local governments, and
use sound and sciencesound science and factual information.
If Congress wants its laws implicated according to what you believe youve legislated, it must ensure that the agency is accountable to Congress, that the rulemaking process is transparent, that
it operates within integrity, and provides all of the participants the
same rights as they participate in the federal rulemaking process.
Thank you.
[The prepared statement of Mr. Kovacs follows:]
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Chairman SMITH. Thank you, Mr. Kovacs.
Dr. Paulson.
TESTIMONY OF DR. JEROME A. PAULSON,
FAAP CHAIR, AMERICAN ACADEMY OF PEDIATRICS
COUNCIL ON ENVIRONMENTAL
HEALTH EXECUTIVE COMMITTEE
Dr. PAULSON. Good morning, Chairman Smith, Ranking Member

Johnson and Committee members. Chairman Smith, thank you for
your kind introduction of me, and I will just add that for 30 to 35
years I also practiced
Ms. EDWARDS. Mr. Chairman, is the mic on?
Dr. PAULSON. I practiced and taught primary care pediatrics, so
I was directly involved in the day-to-day pediatric care of children.
And so with the background that you described and my work as
a pediatrician that I mentioned, Im going to comment today on the
child health benefits of the Clean Power Plan and the EPAs proposed ozone rule.
We know very clearly that children are disproportionately at risk
from environmental pollutants. Children are not little adults, and
we cannot extrapolate from what we know about adults and assume that that information applies to children, particularly as it
relates to respiratory illnesses. Children breathe faster than adults,
they have higher levels of physical activity, and they spend more
time outdoors. Their lungs are still developing. Therefore, children
have different outcomes from exposures to ozone and other air pollutants than adults do, and these effects on children last a lifetime.
Problems that develop in children manifest themselves in adulthood. The work of EPA is essential to protecting children from pollutants and ensuring that children have an optimal environment in
which to live, learn and play.
Reducing carbon emissions of fossil fuel power plants represents
a major step towards addressing a key component of climate
change in the United States. According to the World Health Organization, over 80 percent of the current health burden from the
changing climate is on children less than five years old, and thats
children here in the United States as well as globally. These burdens on children include injury and death from natural disasters,
increases in air pollution-related illness, and more heat-related potentially fatal illness.
Reducing carbon pollution will have an immediate impact on
child health by reducing emissions of other pollutants and the resultant creation of harmful ozone. When fully implemented in
2030, EPAs proposed rule for existing power plants will result in
6,600 fewer premature deaths, 150,000 fewer childhood asthma attacks, and 180,000 fewer missed school days, 3,700 fewer cases of
bronchitis. This also means that when children are not sick, their
parents can go to work, keep their jobs and earn money for the
family.
Let me tell you about a phone call that I received from a physician about a little girl with asthma. The family and the physician
were having difficulty keeping her asthma under control in spite of
adequate medical management. The astute mother reported that
her daughters asthma got worse when the smoke from the power
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plant that was located near her home changed from white to black.
We were able to determine that the power plant usually burned
natural gas but was approved to burn coal under certain circumstances. We believe that this little girls asthma was exacerbated by the coal burning because of the increase in particulate
and other air pollutants associated with that fuel.
It is also clear and compelling scientific evidence that supports
the need for a strong ozone standard of 60 parts per billion or
lower. High levels of ozone in the air including levels above 60
parts per billion can lead to decreased lung function in children,
coughing, burning and shortness of breath as well as inflammation
and swelling of the airways. In 2025, a 60-part-per-billion standard
could prevent 7,900 premature deaths, 1.8 million child asthma attacks, and 1.9 million missed school days.
I know that the distinguished members of this Committee have
given many speeches over the course of your careers, and I am sure
that all of you would be horrified, as I was, to look out at a crowd
that you were addressing to see a woman in the audience sobbing
but that was my experience during a luncheon presentation talking
about ozone as a cause of asthma and a reason for exacerbation of
asthma. This mom was blaming herself for being a good mother
and encouraging her son to be physically active and involved in
outdoor sports only to have him develop asthma.
The EPA has a fundamental role in ensuring that the environment in which children live, learn and play is safe and healthy and
allows children to enter adulthood free from environmentally related health problems. The Clean Power Plan and stronger ozone
NAAQS are essential child health policies that the AAP strongly
supports.
Thank you.
[The prepared statement of Dr. Paulson follows:]
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Chairman SMITH. Thank you, Dr. Paulson.
And Mr. Eisenberg.
TESTIMONY OF MR. ROSS EISENBERG,
VICE PRESIDENT, ENERGY AND RESOURCES POLICY,
NATIONAL ASSOCIATION OF MANUFACTURERS
Mr. EISENBERG. Good morning, Chairman Smith, Ranking Member Johnson, members of the Committee. Thank you for the opportunity to be here today to present the views of the National Association of Manufacturers and our 14,000 members.
Manufacturers believe regulation is critical to the protection of
worker safety, public health, and our environment. We believe in
the mission of the EPA and we support reasonable environmental
regulation. However, we also bear an unmistakably high burden of
compliance with the Agencys regulations. Manufacturers spend, on
average, over $19,000 per employee per year on regulatory compliance and over $10,000 of this is for environmental regulations. The
smaller the manufacturer, though, the larger the burden. Manufacturers with less than 50 employees spend over $34,000 per employee per year and over $20,000 of this is due to environmental
regulations.
So when the EPA issues a new regulation with new costs and
new burdens, manufacturers have to pay these costs not op of what
were already doing, the tens of thousands of dollars that weve already assumed. So were not starting from zero. In fact, our plants
are already equipped with the best available pollution control technology. We maximize our efficiency and we limit waste and we recycle. And so while well always strive for improvement, in some
cases were really already pushing up against or beyond what technology can deliver, and so we needwhat we need as manufacturers more than ever are smarter regulations.
We just dont believe were getting that from the EPA with respect to the three regulations that were here to talk about today:
ozone, the Cleaner Power Plan, and the waters of the United
States definition. In all three cases, the costs and burdens placed
on manufacturers as a result of these regulations are very significant and could make us significantly less competitive.
Manufacturers are committed to reducing ozone levels, and weve
been doing so for decades. Weve been reducing the emission that
cause ozone by more than half since 1980. However, the progress
weve made, it also means that both the low-hanging fruit and the
high-hanging fruit are pretty much gone and so the controls that
are needed to reduce ozone levels are already in place. In fact, with
this rule, EPA can only identify about 35 percent of the controls
and technologies needed to achieve this new 65-parts-per-billion
standard. You heard that right. A solid two-third of the controls
that will be needed to comply to this are called unknown controls.
We dont know what they are.
Economic analysis of this new standard shows that it would be
the most expensive regulation in history. Second place isnt even
close. It would cost about $140 billion per year, about $1.7 trillion
over the next 23 years, placing the equivalent of 1.4 million jobs
in jeopardy each year and reducing annual household incomeconsumptionIm sorryby an average of about $830 per year. Very
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few low-cost control options exist for this tightening of ozone standard, so if controls arent invented in time, what winds up happening is, manufacturers are forced to consider scrapping equipment, scrapping existing plants, replacing them, or just plain old
shutting them down. And then theres nonattainment for ozone,
which is essentially a synonym for no growth. There has to be a
better way for this than this, and really there is. The current
standard is only being implemented. Its going to drive ozone precursor emissions, the emissions that cause ozone, down by another
36 percent over the next decade. We believe we should let that
standard work before moving the chains one more time.
On climate, were committing to addressing climate change
through improved energy efficiency, greater sustainability and reducing our greenhouse gas emissions. Weve done that. We reduced
our emissions ten percent over the past decade, but our competitiveness is threatened by the Clean Power Plan as its currently
drafted. Independent analysis of this rule places total compliance
costs as high as about $366 billion through 2031. Forty-three states
could experience double-digit electricity prices. Thats very difficult
for us as we are major, major energy users. And even worse, many
sectors in my membership, manufacturing, are due to get follow-on
regulations under the Act that will be modeled off of this one,
meaning were going to be hit twice.
We believe EPA needs to fix this rule. We agree that adoption
of a strong and fair international climate agreement should be a
priority, but we also must be very careful not to lock into place
policies that will send production and emissions overseas if the rest
of the world doesnt play by those same rules in Paris in December.
Finally, manufacturers are disappointed with the final Waters of
the United States regulation. We would welcome a clear rule that
resolves disagreement over scope of the Clean Water Act. Instead,
we ended up with a final regulation that fails to do this. It fails
to clear up the problems and may have even created new ones. The
regulation certainly expands the scope of the Clean Water Act to
areas that are not even wet, and it fails to provide clear exclusions
as to what actually qualifies. Were going to face, manufacturers
are going to face increased uncertainty, permitting costs, and supply-and consumer-chain disruptions. Ambiguities in the new regulation will give rise to third-party lawsuits, even in cases where
EPA agrees with us and believes that it is not a water of the
United States.
I assure you, we do not enjoy having to have an adversarial position to the EPA on these regulations. We prefer to work with them
as a partner toward a shared goal of protecting the environment.
However, we desperately need the EPA to choose a different regulatory path.
Sadly, we are nearing the time where legislation may be our only
hope, and we ask this Committee for its help in that pursuit.
Thank you.
[The prepared statement of Mr. Eisenberg follows:]
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Chairman SMITH. Thank you, Mr. Eisenberg, and Ill recognize
myself for questions, and Mr. Kerr, let me direct my first question
to you.
The EPA claims that under the Waters of the United States final
rule, it does not expand the scope of federal jurisdiction. Give me
a couple of quick examples as to why it does expand jurisdiction.
Mr. KERR. Sure. Under the SWANCC Supreme Court ruling, the
Supreme Court found that isolated wetlands are not under the jurisdiction of the Clean Water Act, and if theyre to be regulated at
all, they need to be regulated by the state. Those types of isolated
wetlands can now be regulated under the Clean Water Act. Under
the new rule, they can be regulated as an adjacent water. So thats
one type of situation where scopes broadened.
Chairman SMITH. By the way, Im just curious. Have we seen the
word drizzle before, water thats accumulated as a result of drizzle?
Mr. KERR. Not to my knowledge.
Chairman SMITH. Okay. That might be another example.
Mr. KERR. Yeah, and actually Ive got three or four others. There
has never been an adjacent feature regulated under the Clean
Water Act other than wetlands. The only adjacent feature could be
a wetland. Under the new rule, a pond can be considered adjacent.
Virtually any kind of other water of the United States can be considered adjacent. Thats a new precedent and was not dictated by
a court decision.
Ditches flowing into tributaries can now be regulated as a jurisdictional water. Ive got a lot of concern with that because by definition, ditches connect into waters of the United States so that they
drain agriculture, roads, stormwater, you know, a number of features. If they connect to a traditionally navigable water or a tributary, the EPA is saying they can regulate them now. That creates
at a minimum a lot of confusion.
Chairman SMITH. And thats another expansion.
Mr. Kerr, I know you could go on and on and on. Let me see if
I can get to some other questions.
Mr. Kovacs, real quickly, you say that the modeling system used
by the EPA is biased. Whats an example, and specifically the way
that its biased?
Mr. KOVACS. Well, I mean, theres several. One is when we did
our own modeling on costs several years ago, we found that the
EPA used what they call a limited model where the only thing they
looked at was what are the impacts on job growth, and that was
very narrow in the sense that it asked how many consultants are
you going to have. So when they modeled the mackerel, for example, it found that it created 8,000 jobs. When we used whole-economy modeling, we found that it lost 240,000 jobs, and thats one of
the huge debates thats going on right now with the Science Advisory Board. Theyve been instructed by Congress to determine
whether or not EPA is modelings is incorrect.
Chairman SMITH. Okay. Thank you, Mr. Kovacs.
Dr. Paulson, first of all, you mention in your testimonyI just
want to bring it out for everybodys informationthat since 1990,
emissions of six common pollutants have dropped by 41 percent
through 2008. I think thats good news.
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You also mention the heartfelt case of a girl with asthma, and
whenever the smoke from the power plant located near her home
changed from white to black, when they went from burning natural
gas to coal, her asthma worsened. Weve done some research, and
our research indicates that typically a coal-fired plant produces
white smoke, not black smoke, and Ill show a couple photographs.
Do you know where this plant was located that you referred to?
Dr. PAULSON. Yes, sir, I do.
Chairman SMITH. What city or what area? You dont need to give
anybodys identity. Im just curious where its located.
Dr. PAULSON. Washington, D.C.
Chairman SMITH. Okay. And well have to check because my information is that even when theyre burning coal, the smoke is
white, not black, and that might be of interest. Anyway, I just
wanted to bring that out. I appreciate that.
My last question goes to Mr. Eisenberg, and this is, does the
EPA have the legal authority to implement the proposed Clean
Power Plan?
Mr. EISENBERG. Certainly that is an open question, I mean, and
I fear that if they finalize the rule that they proposed, were going
to get some litigation on that. There we and others have posed
a number of potential legal obstacles that this thing could go
through. You know, they have thethey certainly have the authority to regulate greenhouse gases. Thats been settled by the Supreme Court. The issue is, can they be using this statute the way
theyre using it? Theyve certainly made a lot of interesting choices
in terms of going
Chairman SMITH. Do you have a legal opinion yourself as to
Mr. EISENBERG. You know, its going to be a complicated case. I
think, you know, certainly there are a lot of potential flaws, legal
flaws, in this language.
Chairman SMITH. Okay. Whats an example of one?
Mr. EISENBERG. So a very easy one is whether or not the section
111 can be used in light of the fact that theyre already regulating
power plants under section 112 for hazardous air pollution, can you
actually do that under section 111, and if so, can you do that for
everybody else. They didnt make an independent endangerment
finding for this one so they just basically said well, cars cause this
and so power plants must too. Theres a lot of stuff they did in
there that I think is going to be a real challenge.
Chairman SMITH. Thank you, Mr. Eisenberg, and the gentlewoman from Texas, the Ranking Member, Ms. Johnson, is recognized for her questions.
Ms. JOHNSON OF TEXAS. Thank you very much, Mr. Chairman.
Dr. Paulson, in yourin testimony of Mr. Kovacs, he recommended EPA retain the current 2008 ozone standard of 75 parts
per billion, in large part because EPA is just now starting to implement the 2008 standard. Those who support retaining the current
standard say it is unfair for EPA to move the goalpost by calling
for a more stringent standard. As most people know, Im from Dallas, Texas, an area that is all too familiar with poor air quality.
Dallas County alone is home to more than 60,000 children and over
130,000 adults with asthma who are at risk of missing school,
missing work, ending up in the emergency room or hospital, and
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even dying prematurely on days with dangerous ozone levels at
government expense.
Unfortunately, the State of Texas is not helping to protect my
constituents nor anybody elses and has been intensely opposed to
a lower ozone standard. In fact, the chairman of the Texas Commission on Environment Quality, Bryan Shaw, has stated that
there will be little to no public health benefit from lowering the
current standard. Was the current standard of 75 parts per billion
sufficient to protect public health when it was finalized in 2008 is
one question, and the second question, how has the body of scientific evidence changed since the last time the EPA revised the
ozone standard, and would it make sense based on the science for
EPA to retain the current standard until the states have fully implemented, as some have suggested?
Dr. PAULSON. Ms. Johnson, if the states retain the current standard until its fully implemented, people are going to die and people
are going to be sick. We knew before the current standard was set
by EPA based on the science that was available prior to that time
that that standard was inadequate to protect the health of human
beings in the United States. We now have additional scientific information, both from human epidemiologic studies and other research that shows that a level of 60 is where health protection
starts.
Ms. JOHNSON OF TEXAS. Thank you very much.
Are you likely aware that critics of the Clean Power Plan and
virtually any other EPA rule often claim that the economy and the
American consumer will suffer as a result of efforts to make our
environment cleaner and safer? This sky is falling attitude toward protecting the health of Americans runs counter to reality. As
the economy has tripled in size since the adoption of the Clean Air
Act in 1970, claims that regulations kills jobs are equally misleading. As a matter of fact, Ive known it to create jobs. In fact,
just last year, we heard from the witnesses that wise environmental protection and robust economic development can and should
go hand in hand.
That being said, one cost is abundantly clear, and that is the cost
of American lives, if we do not enact regulations to protect their
public health.
Now, can you please expand upon the cost to public health if we
do not act and implement stronger emission regulations and what
are the costs to the taxpayers, especially medical costs, if businesses are allowed to continue to pollute?
Dr. PAULSON. Ms. Johnson, the issues around ozone in particular
and all of the rest of the air pollutants that come under the Clean
Power Plan, each and every one of them adversely affects human
health and therefore cost money, cost money in terms of direct outof-pocket costs for payment of medical expenses or the government
pays those expenses if its not direct out of pocket or business pays
those expenses in terms of insurance premiums. Businesses also
pay an expense for these health problems when their workers cant
show up or show up sick and cant do the work that they need to
do. Businesses also pay for these health problems when children
are ill because their parents need to stay home with the children,
need to take their children to a healthcare professional, need to
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take their children to an emergency room, or need to sit by their
childs bedside in the hospital.
One of my colleagues, Dr. Leonardo Trasande from NYU Medical
School, and a colleague of his, Dr. Lu, concluded that the best estimate of childhood asthma costs in 2008, and recognized that
theyve only gone up since then, that could be associated just with
environmental factorsthis is not the total cost of asthma, this is
the cost attributable to environmental factorswas around $2.2
billion per year in the United States with a range from about $728
million to $2.5 billion.
So by not protecting our people, there is an extensive economic
burden on businesses and on the country as a whole.
Ms. JOHNSON OF TEXAS. Thank you very much. My time is expired.
Chairman SMITH. Thank you, Ms. Johnson.
And the gentleman from California, Mr. Rohrabacher, is recognized.
Mr. ROHRABACHER. Years ago, when I was in high school, which
seems, really, I guess it was in another century, I remember when
I was in Los Angeles when in high school, and we were not permitted to go out and do strenuous exercises because the pollution
levels in Los Angeles were so high that perhaps once or twice a
week they called a pollution emergency. Today, I think it happens
once or twice a year, so there has been a dramatic reduction in the
air pollution, at least in southern California, and I take it from the
testimony that weve heard that thats true throughout the rest of
the country as well.
We have to attribute that to the fact that there has been regulation that has been successful, and those of who have a natural inclination against regulation need to be honest about that, and the
question is, is whether or not we have come to a point or when we
did come to that point where such regulation actually does not
clean the air but there are natural sources of pollution when you
have to want to maintain a certain standard of living for people.
If were going to have civilization, there will be manufacturing
will take place. If you do not have manufacturing, people will get
sick for other reasons other than just the air.
The question is for you, Dr. Paulson. Has there been a decrease
in the number of illnesses, air-pollution-related illnesses that has
been recorded in these last 10, 15 years as the pollution levels
gone down?
Dr. PAULSON. It depends what pollutant youre looking at and
what particular health outcome you are looking at, but we do know
that the pollution levels have come down and we also know that
the current pollution levels are not healthy, actually still
Mr. ROHRABACHER. Excuse me. Youre not answering my question, please. Im asking you specifically, because the pollution levels
have gone down and now do we see as the pollution levels gone
down this decrease in the number of diseases related to that pollution?
Dr. PAULSON. Theres been some leveling off, for example, of people with asthma but there are
Mr. ROHRABACHER. So we have a leveling off and nottheres
been this dramatic decrease in the pollution but theres only been
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a leveling off, so maybe we have reached a point that the pollution
level is more of a natural level that human beings can relate to.
Perhaps maybe the other witnesses
Dr. PAULSON. There
Mr. ROHRABACHER. Go right ahead.
Dr. PAULSON. These levels of pollution are dangerous to human
beings, Mr. Rohrabacher. These levels of pollution are produced by
human beings and can be controlled by human beings.
Mr. ROHRABACHER. Well, there are also, as we know, natural
for example, we are called deniers over here if you dont go along
with the fact that CO2 is changing our climate, but we know that
90 percent of the CO2 in the air comes from natural sources and
not human sources, and at some point you have to relate what
level of whatever were talking about actually relates directly to
peoples health, and do the other witnesses have any
Dr. PAULSON. Mr. Rohrabacher
Mr. ROHRABACHER. Listen, can I ask the other witnesses to comment on that as well?
Mr. KOVACS. We did a study using EPAs own data just to figure
out that exact question. We asked in each of the studies that the
EPA was doing in terms of reducing pollution, whether it be ozone
or mercury or whatever, EPAlets use mercury. EPAthe entire
utility MACT was mercury but only $6 million out of $10 billion
in EPAs claimed benefits came from mercury. The rest came from
particulate matter, and whats happened is, weve taken particulate
matter down to whetherwhere its 30 percent below where EPA
says its safe and 20 percent below where the World Health Organization says its safe. Were still reducing it, so were spending billions of dollars to reduce something thats already 30 percent below
what they say is safe.
Mr. ROHRABACHER. So at some point where if you have a problem
and at some point you come to a position where it is no longer costeffective to do that, to have that activity, and while we have to
admit that from the time when I was in high school until now
when the pollution levels are lower, that maybe that was very costeffective and many of the things that the good doctor is telling us
about has resulted from that but maybe we now have reached a
point here its so costly that its counterproductive, and on our side
of the aisle at least, we believe that entrepreneurs and manufacturers, when you actually put them in contest with the bureaucracy,
they usually lose, and bureaucracywhere manufacturers can give
us good products to use, usually bureaucracy is able to turn pure
energy into solid waste, and thats about all.
Chairman SMITH. Thank you, Mr. Rohrabacher.
Mr. ROHRABACHER. Thank you, Mr. Chairman.
Chairman SMITH. The gentlewoman from Maryland, Ms.
Edwards, is recognized.
Ms. EDWARDS. Thank you very much, Mr. Chairman, and thank
you to the witnesses this morning.
I just want to make sure that we really understand, because I
think sometimes there are quite overstatements in these hearings,
and so I just want to clarify from the EPA that the Clean Water
Rule does not regulate most ditches. In fact, the text of the rule
says, and I quote, The following are not waters of the United
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States. The following ditches. A. Ditches with ephemeral flow that
are not relocated tributary or excavated in a tributary. B. Ditches
with intermittent flow that are not relocated tributary excavated in
a tributary or drain wetlands. And C. Ditches that do not flow either directly or through another water into a traditional navigable
water, interstate water, or territorial seas.
And so lets not overstate the regulation of so-called ditches. Ive
heard that so many times and it is completely inaccurate.
Furthermore, the rule doesnt protect any types of waters that
have not historically been covered by the Clean Water Act. Any
new requirements for agriculture, in fact, all of the agriculture that
was exempt before is exempt now under the rule, interfere with or
change property rights, regulate most ditches, as I said, change
policy on irrigation or water transfers, address land use, cover
erosional features such as gullies, rills, and non-wetlands swales,
and include groundwater, shallow subsurface flow, and tidal
drains. Those are things that the rule does not do, and so we
should be careful about those overstatements.
Mr. Chairman, I know also a number of my colleagues on the
other side also deny that climate change is happening or at least
that humans are causing it. Weve already heard that this morning
and have adamantly opposed the Obama Administrations efforts to
lower the nations carbon emissions. Fortunately, according to a recent poll by the Yale Project on Climate Change Communication,
the majority of Republican voters actually support climate action to
reduce carbon pollution. Additionally, a majority of moderate Republicans support setting limits on carbon emissions from coal-fired
power plants. This poll also shows that not all Republican voters
oppose EPAs Clean Power Plan.
And so Mr. Chairman, Id ask unanimous consent to enter these
two charts from the Yale Project into the record.
Chairman SMITH. Without objection, thatll be made a part of the
record.
Ms. EDWARDS. Thank you.
I also want to enter into the record a survey by Hart Research
Associates that actually says that voters in fact support the Clean
Water Rule and not just that, but an overwhelming number of voters trust the EPA and the U.S. Army Corps of Engineers to do that
and not Congress. I think that we should listen to the public.
Chairman SMITH. Without objectionand by the way, Im looking
at the poll that youre referring to. The wonder is that the answers
were not
Ms. EDWARDS. Mr. Chairman, thats
Chairman SMITH. 100 percent, given the way the questions
were worded.
Ms. EDWARDS. Thats my time
Chairman SMITH. Whos opposed to clean water?
Ms. EDWARDS. Are you entering that into the record?
Chairman SMITH. It will be made
Ms. EDWARDS. And Id ask for the remainder of my time to be
added back to the clock.
Chairman SMITH. Ill give you ten more seconds.
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Ms. EDWARDS. Thank you.
Mr. Chairman, Id also like to add into the record, as weve seen
this morning again, that our industry representatives here make
the argument that the cost of complying with regulations will kill
the economy and jobs. But this argument has been proven false
over and over again. Again, I have a facts sheet from the Pew
Charitable Trust describing industrys long history of overestimating the cost of regulations. According to Pew, compliance costs
have been less and benefits greater than industry predictions and
regulation typically poses little challenge to economic competitiveness. The fact sheet goes on to outline a number of very specific
examples of this pattern of the overexaggeration from acid rain and
airbags to seat belts and catalytic converters.
For example, chemical production plants predicted that controlling benzene emissions would cost $350,000 per plant. But the
chemical plants ended up actually developing a process that substituted other chemicals for benzene and virtually eliminated control costs. In this instance, as in a number of instances, regulation
actually drove the kind of innovation, Mr. Chairman, that you
pointed to.
Id ask unanimous consent to enter these facts sheets from the
Pew Charitable Trust into the record.
Ms. EDWARDS. Thank you, Mr. Chairman.
I just want to finish by saying weve had so many of these hearings about regulation, and I would suggest that wed allow the rule
to go into effect and we dont have any predictions at all about
what the outcome will be if they are challenged in court, but
afterespecially with the Clean Water Rule. After thousands and
thousands of comments that have been reviewed, changes that
were made from the rule on its introduction to the final proposed
rule, hundreds of witnesses testifying, its time that we move after
a decade and a half of twiddling around and not knowing what to
do and what the rules are to a point where we have some certainty
that industry has certainty, that the public has certainty and that
all of us get the clean air and the clean water that we deserve.
Thank you, and I yield.
Chairman SMITH. Thank you, Ms. Edwards.
The gentleman from California, Mr. Knight, is recognized for
questions.
Mr. KNIGHT. Thank you, Mr. Chair.
I would go on a line of questioning of kind of what weve done
in California. I think that my statement would be that California
has probably gone about this as stringent as any state in the union
as far as our clean air, clean water, clean energy, clean everything
that we have done, not just of course on EPA standards because
everyone has to go along with that but what the legislature has
done in California to go about this.
So I guess my questions would be, and we can start with Mr.
Kerr, that we have seen a loss in the last ten years of about 80,000
manufacturing jobs in California due in part to what we have done
in California, not just by our regulations but what we have mandated on business and how they can interact with the air and the
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water in California. Do you think thatand I think Mr. Rohrabacher was going down the right line of questioning. Do you think
we have hit a line in the road where if we go too far, then were
not going to just continue to hemorrhage jobs but America and
many parts of America will be so uncompetitive that businesses
only choice will be to look elsewhere.
Mr. KERR. Thank you, Congressman. With regard to the question, I have to say Im not an air pollution consultant so Ill just
yield my time to the others here who could speak to that.
Mr. KOVACS. Congressman, I think youre going to be surprised
with my answer. I think we dont know, and the reason why I say
that is part ofwhen Congress first legislated these acts in the
1970s, you asked for very specific information. There was a debate
on the Floor that was really fascinating, and one of the members
one of the Democrats got up and said, you know, Im tired of this
issue being fought in this waythis is the end of the world or this
is going to protect the world. They specifically said we know were
going to impact jobs, we know that, but Congress has a major role
and we need information to come back to us from the Agency. You
never got that.
And in the 1980s and the 1990s, Congress again said were going
to pass the Information Quality Act, and that said is, the Agency
has to take information from the public and the public has a right
to challenge the Agencys information. The agencies, not just EPA,
have refused to do that. Youve asked for input under the unfunded
mandates and the impact on states. States implement 92 percent
of all the environmental laws, and EPA does not look at unfunded
mandates. It generally dismisses and says theres no impact on the
states. Even for ozone, EPA says theres no impact on the states.
Theres no unfunded mandate for a rule that they say is going to
cost approximately $90 billion a year.
So you dont know, and one of the things thats really needed in
this issue is, we fought over the issue for too long. We need the information on data quality to work. We need the information on
321(a) in the Clean Air Act to tell you how its impacted jobs because regulations arent just something that happens to the whole
country. Regulations are something that happens to an industry.
So if an industry is hit and its in Wisconsin or Idaho or wherever,
that industry and that communitys affected. There may be jobs
created elsewhere but you still have an industry and a community
thats been hurt, and you dont have that information and EPA has
never given it to you.
Mr. KNIGHT. Thank you very much.
Mr. EISENBERG. So Ill try to give you a very simple answer specifically for manufacturing. Youre absolutely right in terms of
manufacturers. We use about a third of the energy in this country.
We are extremely energy-intensive. For some manufacturers, it is
our single largest cost. There is a reason why a lot of the new manufacturing that is coming online is going to states where energy is
cheap. If you are a state that does not have cheap energy, that is
a very big difference maker for a lot of folks in industries that are
highly energy intensive.
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That is not the driver; it is a driver of why manufacturers go into
places that may not be California, which absolutely has extraordinarily high energy costs.
Dr. PAULSON. Mr. Knight, we know very well that air pollution
is not confined by political borders. We know this very well in the
United States, but it is true internationally as well, and we can
only do what we can do in the United States to protect our own
citizens, and Congress gave the Environmental Protection Agency
a responsibility to protect the health of human beings in our country, and that is what they are attempting to do by lowering these
pollutant limits.
Mr. KNIGHT. Absolutely, Dr. Paulson, and I agree. I just think
that we possiblyand I wouldnt say possibly. I would say we
have achieved a level that is very healthy in this country, and
going further, we will be hurting this country and its ability to economically be a factor.
And I will say what we have done in California has worked very
well. We have six of the dirtiest ten cities in this country.
Thank you, Mr. Chair.
Chairman SMITH. Thank you, Mr. Knight.
The gentlewoman from Oregon, Ms. Bonamici, is recognized for
questions.
Ms. BONAMICI. Thank you very much, Mr. Chairman, and Im
going to follow up on the discussion we were just having, and Mr.
Chairman, you mentioned this in your opening statement too about
diminishing the competitiveness of U.S. businesses, and we hear
these claims that the Clean Power Plan or other environmental
laws are going to kill jobs, hurt the economy. Theres a suggestion
that our businesses will go overseas.
I just read this morning that Ikea just pledged a billion euros,
which is $1.13 billion, to help slow climate change through renewable energy and steps to help poor nations cope with climate
change. They said this is good for customers, good for the climate,
and good for their company. So they found that customers actually
value environmental responsibility, and I suggest that we look at
that and what our customers value.
And I also want to talk about how the numbers speak for themselves. The Union of Concerned Scientists just released an analysis
that shows that most states are already making significant
progress toward cutting carbon emissions from power plants, and
according to that analysis, 31 states including my State of Oregon
are already more than halfway toward meeting the 2020 benchmarks set out by the EPA under the Clean Power Plan. All but
four states have already made decisions that will help cut their
power plant emissions. Fourteen states including California, Kentucky, Ohio and New York are already ahead of the emission rate
reduction trajectory because of current carbon-cutting decisions and
actions.
I find this very encouraging and again highlights how the environmental regulations can bring about positive results. Mr. Chairman, I ask unanimous consent to enter this analysis into the
record.
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Ms. BONAMICI. Thank you.
And Mr. Eisenberg, I was glad to hear you say that the National
Association of Manufacturers believes in the mission of the EPA.
You say that plants have the best available pollution control technologies, and as we were just discussing, history shows that regulation drives innovation. Without the regulation, those who are working on new technologies dont have a market, but with the regulation, they do, and we have found that new technologies are developed to meet the needs of regulation.
So I want to ask, Dr. Paulson, you know, many are arguing that
its not just worth it, that costs are too high, and as youve noted,
theres evidence showing that on balance, jobs are created, the
economy expands following the passage of major environmental reforms. For example, in a report to Congress on the costs and benefits of federal regulations, OMB estimated that major rules promulgated by the EPA in the decade between 2003 and 2013 had benefits between $165 billion to $850 billion compared to costs of $38
to $46 billion. That is a pretty significant return on investment.
So Dr. Paulson, alternatively, weve talked about the costs of ignoring our changing climate and the public health risks related to
increases in global temperatures, and I note that the death toll in
India is now up to 2,500 people. Tragic over there.
Climate change also has the potential to exacerbate existing
health conditions as youve discussed such as asthma. Now, weve
had hearings in this Committee before where weve talked about
how the EPA is not allowed to consider the costs when they, for
example, set the standard under the Clean Air Act, the ozone
standard. Thats sort of compared to the idea that youre going to
make a medical diagnosis depending on how much the treatments
going to cost.
So can you comment on the importance of separating the costs
associated with attaining an ozone standard from the assessment
of what level is appropriate to protect public health?
Dr. PAULSON. Health needs to be a priority, and as a physician,
I am sworn and I took an oath long ago and still very much believe
that oath I took to protect the health of the individuals that I work
with, and for me, thats the kids but its also their families. I cannot ethically take the consideration of cost into account. I certainly
work with the families to try and make sure that they have or can
access the financial resources for whatever it is that I or my colleagues may be recommending, but my responsibility is to do what
is in the best interest of children.
Ms. BONAMICI. Thank you. Im going to try to get one more quick
question in to you, Dr. Paulson.
There was a study by Syracuse and Harvard University about
the major co-pollutants that could be reduced. So can you talk
about some of the health co-benefits that are likely to result from
these kinds of carbon regulations?
Dr. PAULSON. Yes. Im a pediatrician, but let me mention something particular to adults, and that relates to particulate pollution.
We know that when particle levels go up in the air, the next day
more people are going to be admitted to the hospital with heart attack and strokes and die from those heart attacks and strokes as
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a result of that exposure to the particulates. So thats just one example.
Another example is that we know that children grow up in areas
of the country that have higher air pollution when they are finished growing, 18, 20, their lungs are smaller than kids who grow
up in a less polluted area, and that raises the concern of, are these
kids then set up for what we think of as adult-onset pulmonary disease but actually it goes back to the pollution that they were exposed to as children.
Ms. BONAMICI. Thank you very much.
I see my time is expired. I yield back. Thank you, Mr. Chairman.
Chairman SMITH. Thank you, Ms. Bonamici.
And Id like unanimous consent to put in the record a New York
Times article just a few days ago that reveals that the EPA solicited positive comments from outside organizations, perhaps in violation of lobbying laws. Without objection.
[The information appears Appendix II]
Chairman SMITH. And the gentleman from Texas, Mr. Babin, is
recognized.
Mr. BABIN. Yes, sir. Thank you very much, Mr. Chairman, and
thank you to all you witnesses for being here.
The EPA Administrator, Ms. McCarthy, Gina McCarthy, wrote
an op-ed recently saying that the Agencys air standards attract
new business, new investment and new jobs. I dont think that Administrator McCarthy is living in the same world as the rest of us.
I represent the 36th District in the State of Texas, and we have
one of the largest numbers of petrochemical plants and refineries
in the country. Most of my district is not in attainment with these
new regulations. I will also add that neither is Yellowstone National Park in attainment with these new regulations.
There is no concrete evidence to support the lower standard for
ozone that the EPA is calling for, not to mention the cost that is
associated with it, given the strenuous economic times. I would
now ask for a slid be placed on the screen to describe my district,
the State of Texas, District 36. We have the largest manufacturing
industry in the State of Texas in the chemical and refining industry. We directly employ or indirectly employ over 10,000 people
down there in this portion of my district, and we pay $934 million
in wages in this district with an average wage of nearly $100,000.
These proposed new rules promise to be the most expensive regulations in the history of the United States, likely costing us thousands of jobs and prolonging a recession. This is bureaucratic overreach in the extreme.
I would ask Mr. Kovacs and Mr. Eisenberg whether this is worth
putting all of this at risk with these new regulations. Mr. Kovacs?
Mr. KOVACS. Well, I think in terms of ozone, weve really had
probably 30 years of what youre describing. I mean, look, going
back to the early 1980s, many sectors of the economysteel, foundries, carpets, furnitureyou pick it, because nonattainment areas
could not get the credits to stay operating, were forced either, one,
to other areas of the country or two, they were forced overseas. And
so thats been going on for quite some time.
Again, I come back to the fact that these are issues that really
should be resolved, and let me just give you one example as to how
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hard it is to resolve it. Weve talked a lot today about science and
transparency, and weve challenged EPA for years, but in 1999,
when the Pope and Daugherty study was first issued, I wrote a
FOIA to EPA and was denied everything. So all the scientific basis
for a lot of what theyre talking about in PM and ozone has been
denied to the public, and the only people who can have access to
it are EPA and their researchers. Chairman Smith issued a subpoena last year and couldnt get the information.
One of the things that we need to have in this country is complete and total transparency. The Agency needs to be able to put
its models, its science in the record. It needs to implement the environmentalor the Informational Quality Act. They need to accept
information from the public and they need to sit down and talk
about it. Theseif the datas there, then they shouldnt be afraid
of it. If its not there then they should be afraid of it.
Mr. BABIN. Which is what the Secret Science Act is all about
were proposing.
Mr. Eisenberg.
Mr. EISENBERG. Thank you. To your question of whether or not
we believe that this is the right thing for manufacturing, no, we
dont need them to change the ozone standard if you want to have
a manufacturing sector. I mean, that is the simple and straight answer, and this is not about health for us. We are getting the benefits of continued reductions between the existing ozone standard
and the three dozen other regulations that reduce NOX emissions.
Were going to be reducing ozone precursors by 36 percent over the
next decade, so were going to get there. Were going to actually be
doing what we need to do. The only difference between that and
gettingand moving the chains now is that you impose a significant amount of struggle for manufacturers to try to expand or build
things to get basically the same result.
So were going to get there anyway. We can just get there without all of the pain that we would have to face if you dont move
the chains on us.
Mr. BABIN. Thank you very much, and I yield back my time, Mr.
Chairman. Thank you.
Chairman SMITH. Thank you, Mr. Beyerthank you, Mr. Babin.
Mr. Beyer, the gentleman from Virginia, is recognized.
Mr. BEYER. Thank you, Mr. Chairman.
Mr. Chairman, Mr. Eisenberg and Mr. Kovacs both cited a study
prepared on behalf of NAM in their written testimonies, and this
study estimates the compliance costs associated with an ozone
standard of 65 parts per billion.
I have an article from Bloomberg News that discusses NAMs
study and a number of groups criticize the study and its methodology, saying that the study doesnt include an estimate of the anticipated benefits of the 65 standard, it overestimates compliance
costs, and that it makes unrealistic assumptions. For example,
the use of the Cash for Clunkers program, with which Im very familiar, is used as the basis for estimating the cost of unknown pollution controls. This is described as insane and unmoored from
economic reality.
Also, its important to understand well what the new standards
might cost and the savings that might generate. Please allow me
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to point out that the 2001 Supreme Court, the same court that put
George W. Bush in the White House in Bush v. Gore ruled that the
Clean Air Act prohibits the EPA from considering the cost of compliance with setting National Ambient Air Quality Standards.
So Mr. Chairman, I ask unanimous consent to have this article
entered into the record.
Mr. BEYER. Thank you.
Dr. Paulson, thank you for being here. The Committee received
testimony from Dr. Mary Rice on the health impacts of ozone, and
she indicated that the research has only grown stronger since the
last time the EPA considered revising the current standard, and
one area she highlighted was the new evidence between higher
ozone levels and increased mortality.
I grew up here in Washington, DC. There will be a number of
times this coming summer when every TV station will be telling us
all to stay inside because of high ozone levels. As I understand it,
the Integrated Science Assessment for Ozone states that The current body of evidence indicates theres a likely causal relationship
between short-term exposures to ozone and total mortality. Can
you talk about this evidence?
Dr. PAULSON. Yes. Ozone causes inflammation, irritation, particularly in the lungs. I think an analogy that everybody I hope can
understand is sunburn. Sunburn causes inflammation and irritation of the skin, and likewise, ozone does that but it does that in
the breathing tubes in the lungs, and acutely thatif its a onetime thing, if its a few-times thing, that heals up and goes away
just like a sunburn heals up and goes away. But on a chronic basis,
that leads to permanent changes in the breathing tubes in the lung
so that they no longer function the way they need to function to
remove other pollutants from the lung. They become scarred. They
dont transfer oxygen and carbon dioxide the way they should. So
overall, pulmonary function declines and that impacts on a whole
range of adult health issues.
So I think that we need to bring the ozone level down. Levels
below 60 are much safer than levels above 60, and we should have
a standard of 60 in the United States.
Mr. BEYER. Thank you, Dr. Paulson, very much.
Mr. Kovacs, thank you for being here representing the Chamber.
I was President of the Falls Church Chamber, on the board of Fairfax Chamber. My wife used to work for you guys at the U.S. Chamber.
But Im having trouble reconciling a number of facts. On the one
hand, EPAs promulgated regulations in clean air, clean water,
greenhouse gases, and all allegedly are job killers and profit killers.
On the other hand, corporate profits are at an all-time high, the
Dow is over 18,000 last night, 62 straight months of job creation,
the fastest and best recovery of any Western economy since the
Great Recession. In fact, Governor McCall from Virginia has now
created private-sector jobs, not him but our economy in Virginia
has created more private-sector jobs in these first 17 months than
any government in Virginia history, any governor.
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In my business when we receive a new regulation, we adapt and
we figure out the most effective way to implement and respond to
the new rule and then we figure out how to make money off of it.
To Mr. Knight, who I guess is gone, my California dealer friends
are the most profitable dealers in the country despite their regulations. I would love to be a California car dealer.
My question is, dont you give too little credit to the business
community, to their imagination, to their operational excellence?
Cant we have business and job success and better health at the
same time?
Mr. KOVACS. Well, thank you for the question. First of all, I give
tremendous credit to the business community. They are extraordinarily innovative, and I am absolutely thrilled that your wife
worked with the Chamber and you were with the Falls Church
Chamber.
Now, having said that, we at the Chamber, we dont really
when we talk about job impact and regulatory impact, we talk
about a system that the United States constantly creates jobs and
were constantly creating more jobs and hope we will even do better
in the future, but when a regulation comes out, it actually affects
specific industries. When ozone comes out, for example, its going
toinitially we have the history of it coming out and literally
knocking out, lets just say California or anyplace elsechemical
manufacturing in certain areas, oil manufacturing, paint and coatings. And what happens is, those people truly are out of jobs, and
when you look at the fact that if youre over 55 and youre out of
a job, your chances are only about 25 percent of having a job the
rest of your life, and what were trying to impress upon them is,
yes, its easy to say wow, we have a lot of great technology companies and theyre creating a lot of jobs. Whats happening is, the regulations are putting people and communities out of business, and
that should be just as much of a concern because the health impacts when a community goes out of business is drug abuse, heart
attacks, hypertension, and all were trying to say is, lets get the
facts on the table and lets have an honest discussion. Lets put the
health-related effects out, lets put the job-related effects out. This
should not be a problem. This should be a problem that Congress
can solve. This shouldnt be a problem we fight over. Thats been
my testimony.
Chairman SMITH. Thank you, Mr. Beyer, and the gentleman from
Ohio, Mr. Johnson, is recognized.
Mr. JOHNSON OF OHIO. Thank you, Mr. Chairman.
You know, the discussion that were having today about the
EPAs overreach, its a continuing dialog, and its disturbing.
I went to Europe just a few weeks ago and talked with many of
our friends and allies in Europe about energy policy, and I learned
something there that I wasnt expecting to learn. Over the last 20
years, they have been advancing beyond the United States in shutting down coal-fired power and investing in renewable energies and
those kinds of things, reducing the amount of coal that they had
in their energy portfolio. When we talked energy policy with many
of our friends there, we learned that a lot of those countries, some
of those countries are increasing their mix of coal-fired power in
their energy profiles, and when we asked them why, they said our
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ratepayers are simply unwilling to bear the burden of the high cost
of providing energy to their homes and to their businesses. Europe
has learned this lesson, that coal-fired power is still the most reliable, affordable energy on the planet.
Do we need to keep our air clean? Absolutely we do. Do we need
to keep our water clean? Absolutely we do. Dr. Paulson, you made
some impassioned comments about the health implications. Not everybody, though, Dr. Paulson, agrees with some of the statistics
that you said. For example, today the average life expectancy in
the United States is 80 years, one of the highest in the world.
Theres a New York Times article that came out October 8, 2014,
that said a child born in America today will live longer than at any
other time in history, and these are scientists saying this. That report came from the Centers for Disease Control.
In the USA Today on April 9, 2015, it cites an EPA report says
the EPA reports that are our air quality has substantially improved, aggregate emissions of common pollutants have decreased
62 percent between 1980 and 2015. It goes on to say it is unlikely
that cleaner air is causing an increase in asthma.
So, you know, what I have to wrestle with, and I think what the
American people are wrestling with is, when is enough enough?
When does it becomewhen does the scale tip towards irresponsibility to continue trying to cripple the American economy and
eliminate opportunities for millions of Americans just to move the
CO2 emission needle a smidgen?
Folks, I submit that we have reached that breaking point. Weve
passed that breaking point. There are serious legal questions to the
EPAs jurisdiction and their legal basis for their Clean Power Plan,
and I think its something thats got to be seriously considered by
this body and by the American people.
Let me get to some specific questions. Mr. Kovacs and Mr.
Eisenberg, by the year 2030, the EPA believes their proposed Clean
Power Plan will allow the United States to reduce carbon emissions
from the power sector by 30 percent or below the 2005 levels, a
roughly 17 percent cut from 2013 levels.
To achieve these reductions, EPA calculated a specific emissions
rate for each state by totaling the CO2 emissions produced by each
States electricity-generating units and dividing it from the total
amount of electricity generated by the EGUs. Then the EPA proposed emissions reduction targets based on the carbon intensity of
each states electricity sector.
My question to you gentlemen, do you believe the proposed performance standards are achievable? Mr. Kovacs?
Mr. KOVACS. I think the easiest way to address your question is
to start off with one of your conclusions where enough is enough,
and I think at that point in time, I dont think you can get to dealing with the present regulatory system without a change in the Administrative Procedure Act, and Chairman Smith is very familiar
with this. But right now you cant get the kind of data into the system that you need. You cant get the Agency to participate and you
cant get the Agency to look and talk to the public the way it needs
to. Until you can get the kind of early-on input where people say
heres what we think and the Agency says heres what we have,
and you begin the discussion 90 days before rule, and then you
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begin to have the Information Quality Act put into the system
where people can actually say oh, this is the data.
You haveCongress has to find some way to get the process to
work. There is nothing with the law that court decisions have come
down on deference and with the way the agencies ignore Congress.
Congress has to make a fundamental change in how rules are
made.
And the last point, because I dont want to just filibuster, but the
last point is, there are 4,000 rules coming out every year. Three
thousand seven hundred really work. Ninety-five percent of the
system works. Its were talking two or three or four major rules
a year, and most of those rules come out of EPA. So when you look
at the whole regulatory system, you dont need to throw it all away,
but for those major rules that are over a billion dollars that fundamentally change society, you have to have a new way of approaching it.
Mr. JOHNSON OF OHIO. My times expired, but Mr. Eisenberg,
would you want to respond to that?
Mr. EISENBERG. Sure. I mean, certainly in the case of ozone,
these rules are not achievable, and its actually a good opportunity
to explain what our studies had. Our study actually had the same
methodology as EPAs study. I mean, it was exactly the same. As
far as known controls, we used the same stuff, same numbers because we believed them. Where we differ with EPA is on the 65
percent of controls that you need to comply that are unknown controls. You dont have toits notyou still have to do it. We just
had to figure out how to do it at that point. I would love to be able
to tell you we can innovate, and maybe we will, and if we dont
Chairman SMITH. Mr. Eisenberg, thank you, and Mr. Johnson as
well.
The gentleman from New York, Mr. Tonko, is recognized.
Mr. TONKO. Thank you, Mr. Chair, and thank you to our witnesses.
Mr. Chair, in his testimony, Mr. Eisenberg cites a study, a study
released by the National Association of Manufacturers last September, I believe. Its titled The Cost of Federal Regulation to the
United States Economy, Manufacturing and Small Business. According to the study, regulations cost the economy $2 trillion in
2012. Now, fortunately, a review of that study was done. The results of that study indicate clearly that that number is not accurate
and that number is based on a flawed analysis.
I have here in front of me a review of the National Association
of Manufacturers study by Professor Kolstad from Stanford University. Professor Kolstad in this study was asked to grade it and gave
it a C minus. In his review of the study, he states that theand
I quotestudy reads as an advocacy document. The authors focus
only on the costs of regulation, ignoring the benefits. The authors
also dont follow the standard in academic practice of discussing
uncertainties in their analyses and their results are highly uncertain. All of these factors make it difficult to determine the quality
of the responses and lead to the conclusions that the results are
unreliable.
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Mr. chair, I ask thatby unanimous consent that the review of
the National Association of Manufacturers study be entered into
the record.
Mr. TONKO. Dr. Paulson, as you are well aware, beyond the economic costs associated with climate change, there are very serious
public health risks related to increases in the global temperature,
for example, longer heat waves, changes in water and air quality,
and foodborne and insectborne disease. Climate change also has
the potential to exacerbate existing health conditions such as asthma and adversely impact vulnerable populations like children that
you serve and the elderly.
What kinds of ongoing health risks are expected if the current
climate trends continue, and do these risks, in your opinion, vary
by region of our country?
Dr. PAULSON. Mr. Tonko, yes, they do vary by region. We are already seeing significant impacts in terms of injuries and deaths
among native populations in Alaska because of changes in the ice
and other factors there. We will and are seeing in the rest of the
countrywe will see more problems with asthma, as you have
mentioned. We have seen over the last 5 to ten years a change in
the range, the number of counties and states thatwhere Lyme
disease is a problem and as the climate continues to change, we
will see continued changes in that disease and other diseases such
as we may begin to see indigenous malaria here in the United
States. We will start to have problems from sea-level rise. We are
Im a resident of Virginia and I live in Mr. Beyers district, so we
dont quite see that so much in Alexandria but certainly in the Norfolk region, the Hampton Roads region. We are seeing that, and
that will continue and impact on other parts of the country with
sea-level rise. We lose quality of water for agriculture and for
drinking. So theres going to be a vast array of impacts, it will vary
by part of the country, and it will disproportionatelyand these
impacts will disproportionately fall on children and other vulnerable populations.
Mr. TONKO. Right, and weve also seen some of the proposals, the
expected impacts on coastal areas of New York State.
How can implementing the Clean Power Plan help states address
these public health impacts of climate change?
Dr. PAULSON. First and foremost, all reductions in CO2 production will slow the rate of temperature change associated with excess CO2, and if we can get CO2 levels down in the long run, while
some of these issues will continue to occur for a while, we can stop
the progress of climate change in the long run.
I think that again in the long run, we need to be very concerned
about food availability and quality of food thats going to be impacted from higher temperatures. People are literallyand were
seeing this unfortunately now in India, people are literally not
going to be able to go out and plant and harvest when the temperatures are extremely high. The plants will not grow and produce the
bountiful resources that we require and derive from them. The
quality of the food may be decreased. So there are a lot of impacts
that were going to have to deal with.
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Mr. TONKO. I thank you, and with that, Mr. Chair, I yield back.
Chairman SMITH. Thank you, Mr. Tonko, and the gentleman
from Texas, Mr. Neugebauer, is recognizedoh, Im sorry. I
skipped over Mr. Loudermilk from Georgia.
Mr. LOUDERMILK. Thank you, Mr. Chairman.
One of the issues that we run into Ive found out in my brief time
here in Congress is getting down to the true facts, and part of getting the true facts in science is that getting away from presenting
facts that justify an end but making your end justified off the facts
that are before you.
I live ten miles from one of the largest coal-fired plants in the
nation, and Mr. Chairman, to your point earlier, this plant, you
really cant see the smoke when it comes out, but what comes out
is white but its steam thats used to cool that.
But Dr. Paulson, you brought up something that was concerning
to me because I live ten miles from one of the largest coal-fired
plants in the nation. My one-year-old granddaughter lives about 11
miles from it. And you brought up in your statement, you said that
outdoor air pollution is linked to respiratory problems in children
including decreased lung function, coughing, wheezing, more frequent respiratory illnesses and so on, and that is true. A quick
checkyou are absolutely right. It is linked to air pollution. But
Dr. Paulson, can you tell me what is the greatest contributing factor to asthma worldwide according to the World Health Organization?
Dr. PAULSON. I dont know exactly what the World Health Organization has said is the greatest contributing factor. Genetics is
certainly an issue. Smoking is clearly issue. Thats another form
of
Mr. LOUDERMILK. Do you know where air pollution ranks?
Dr. PAULSON. No, sir, I dont.
Mr. LOUDERMILK. Last. The greatest contributor to asthmaand
I was surprised to find out that asthma is one of the top causes
of deaths in children worldwide. I was very shocked. The top seven
contributors are all related to poor sanitary conditions in the home
which are linked to poverty. It is greatest in the most impoverished
nations in the world. Number seven is outdoor allergens, which if
somebody could do something about pollen in Georgia, Id really appreciate it, but the only thing you can do is cut down trees, and
weve been stopped from doing that as well. Tobacco smoke is number eight. Number nine is chemical irritants in the workplace,
which again goes back to industrialized nations that dont have the
regulations that we have in place. Number ten and last is air pollution.
I live, as I said, ten miles from the largest coal-fired plant in the
nation, but it happens to be the cleanest, one of the cleanest coalfired plants in the nation. Georgia Power, who runs that plant, has
spent twice as much money in cleaning up the emissions from that
plant as it cost to build the plant when it was first constructed.
But a few years ago, because of this Administrations regulations,
Georgia Power has to shut down three coal-fired plants, which cost
700 jobs. Now, I dont have anything to enter into the record, Mr.
Chairman, other than what Ive seen with my own eyes. If youve
ever gone into an area, especially in our part of Georgia, to where
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a plant has shut down and a lot of cases its because they couldnt
afford to operate because of the regulatory environment in this nation, you go into those areas where those workers, which are usually factory workers who are skilled in that particular job, have no
other job to go to. When you go in those towns, you start seeing
these type of issues. You see poor sanitary conditions because
theyre unemployed or theyre underemployed or they have no job
at all. Theyre doing what they can to scrape by, and we start seeing an increase in poverty.
So my question is, are we throwing out the baby with the
bathwater because were focusing on what is the least contributing
factor toward a disease which would result in a greater contributing factor as more Americans lose their jobs, as more jobs go
overseas? In fact, the President signed an agreement with China
that they would promise to start limiting their emissions by 2030
while were lowering our emissions pushing more jobs overseas.
So my question to the panel is, am I off base? Are we going to
lose more jobs in this nation because of the direction were going,
which will result in a problem greater than what we have right
now? Mr. Eisenberg, youre in the manufacturing arena, and thats
where weve seen the greatest impact?
Mr. EISENBERG. Look, understand what Im saying today. In almost every case, were comfortable with regulation but we have
regulations and those regulations are working, and its really about
figuring out where that sweet spot is between having a regulation
that protects the environment and health and making sure that we
can actually do our jobs. In the cases that weve cited today, theyve
gone a step too far. Were asking them to take a step back towards
normalcy.
Mr. LOUDERMILK. With that, Mr. Chairman, I see Im out of time.
I would love to continue this on but Ill yield back.
Chairman SMITH. Thank you, Mr. Loudermilk. I appreciate that.
The gentleman from Texas, Mr. Neugebauer, is recognized for
questions.
Mr. NEUGEBAUER. Thank you, Mr. Chairman.
Mr. Kerr, you know, since 1986, EPA and the Corps has only had
jurisdiction over the wetlands adjacent to other jurisdictional
waters. Can you explain in detail the rules new concept of adjacent
waters?
Mr. KERR. Yes.
Mr. NEUGEBAUER. Im over here in the cheap seats.
Mr. KERR. Thank you, Congressman. Yeah, prior to the new rule,
through court precedent, the Corps regulated wetlands that were
adjacent to waters that themselves were not wetlands. What does
that mean? If you go to a major river and theres a large wetland
next to the river, theres a dike built through that wetland, the
wetland on the other side of the dike, the landward side was regulated. But if there was a small pond that had been abandoned because the farmer stopped working a certain area or he moved hogs
off of that area and that pond was in a field that became wooded
and he didnt use it for more than five years, the Corps would typically consider that an isolated water, and thats the way its been
working up until May 27th with the new rule. Under the new rule,
109
that pond can now be regulated as an adjacent water so its a
change in how they approach it.
The other thing is that theres a site that I worked on with a development client where there were several small isolated wetlands.
The Corps of Engineers back in the late 1990s confirmed them to
be isolated wetlands, and the Commonwealth of Virginia regulated
those wetlands. Under todays rule, those wetlands would also be
considered adjacent and under the jurisdiction of the federal government. So those are two ways that its changed.
Mr. NEUGEBAUER. So to your knowledge, is there legal precedent
for the agencies to establish jurisdiction over these waters?
Mr. KERR. The short answer is no. There is no court decision that
required the Corps of Engineers to change how adjacency was determined, to my knowledge, and Ive been doing it for 26 years.
Mr. NEUGEBAUER. So as a wetlands delineator, or can you describe how the new adjacent-waters definitions including the neighboring definition will change the way you make your jurisdictional
determinations?
Mr. KERR. Yeah, those two examples are two clear examples. The
third is the portion, much like manufacturersI mean, there are
certain parts of this rule that are understandable, theyre relatively
reasonable. The one issue with adjacency that gives me greatest
concern is the criteria that says any water within 1,500 feet of a
traditionally navigable water is by definition, by rule adjacent and
therefore jurisdictional under the Clean Water Act. In the coastal
areasand I come from the coastal plain of Virginiabut this goes
from Texas to, you know, the coast of New York, you are now extending this measuring stick out 1,500 feet, and anything that falls
within thatand you measure 1,500 feet from the innermost limits
of tidal waters, tidal creeks, tidal bays miles inland from the ocean,
you extent this measuring stick 1,500 feet, and anything within
that zone is jurisdictional as an adjacent water by rule. Thats a
dramatic change.
Mr. NEUGEBAUER. I want to get to talking about ditches, and I
think one of the things that my agriculture community thinks, has
concerns that bythose people that believe that EPA has exempted
some of the ditches from their jurisdiction, or EPA is telling, I
guess, the agriculture community that. Do you believe thats in fact
true?
Mr. KERR. If I could give you just a little context for my opinion
on that, our firm just recently completed a delineation that involved over 56,000 linear feet of ditches. So just around ten miles
of ditches. We had to walk them all, and we asserted they were
non-jurisdictional. It took about a year, I think, to get the confirmation that in fact they were non-jurisdictional. Under todays
rule, I can tell you, I can walk you to these ditches that are now
jurisdictional. As has been said, there are two criteria about
ditches that I think are fine, and theyre the first two. The last one
to me is the recapture provision, and in fact, I went through the
entire preamble, 200 pages. Ive read what I can find on it, and
theres not a specific mention of how they arrived at the third criteria, and the issue with it is, that it says ditches that dont flow
through another water are exempt. Ditches virtually by definition
flow into a water of the United States, and we have an example
110
where the water in the United States was a channelized stream,
was eight feet below grade. There are some ditches three feet below
grade that, you know, kind of like a waterfall discharge into this
creek. The water neveryou know, this ditch does not touch the
bottom of that ditch. The water falls through the air about five
feet, runs down the edge of the embankment when theres water.
These are intermittent streamsor ditches. Those ditches would be
regulated as a tributary of the United States under this rule. I am
sure of it.
Mr. NEUGEBAUER. So there is still confusion out there and uncertainty when it comes to the ditches issue?
Mr. KERR. Yes, sir. If I could, one suggestion I would have, it
seems to work in Virginia. I dont want to claim that it would work
nationally. But I would like to see, as someone else here mentioned, an opportunity where the EPA gets a roundtable together,
a technical advisory committee, and allows that technical advisory
committee to provide direct input, and it would have conservation
groups, industry, consultants, the entire gamut, work on an issue
forin Virginia its up to 180 days before a rule goes out for public
comment. So you would still have public comment. I think 180 days
is better than 90. I dont thinkI think with these large regulatory
issues, theyre too complicated to do too quickly.
Chairman SMITH. Mr. Kerr, I think thats a good idea. Thank
you. Thank you, Mr. Neugebauer.
The gentleman from Texas, Mr. Weber, is recognized.
Mr. WEBER. Thank you.
Mr. Kerr, you said earlier isolated wetlands were not regulated
by the EPA according to a Supreme Court case. Can you give me
the name of that case?
Mr. KERR. Yes, SWANCC.
Mr. WEBER. S-w-a-n-k?
Mr. KERR. SWANCC, I think, Southern Water Southern
Waste Management Authority. It was a county in Chicago.
Mr. WEBER. Perfect. Thank you.
Mr. Eisenberg, you said manufacturers use one-third of the energy in the United States. You know, I have five ports in Texas.
We export a whole lot of things and we have a lot of petrochemical
industry and oil and natural gas and on and on and on. When I
speak to groups, I often say that the things that make America
great are the things that America makes. How do we do that with
a stable, reliable, affordable, dependable energy supply? Mr. Kerr,
would you agree with that, that America is great because of the
things we make and we have a good energy supply to fuel, for lack
of a better word, our industry?
Mr. KERR. Yes.
Mr. WEBER. Mr. Kovacs, would you agree with that?
Mr. KOVACS. Yes.
Mr. WEBER. Dr. Paulson, would you agree with that?
Dr. PAULSON. I dont know enough to comment. I think youre
right but I dont know.
Mr. WEBER. Mr. Eisenberg, would you agree with that?
Mr. EISENBERG. I do.
111
Mr. WEBER. Good. Mr. Eisenberg, you also said that 65 percent
of the controls the EPA was mandating were not identifiable. Is
that true?
Mr. EISENBERG. Yes. Its EPA term of art. They call them unknown controls. They just
Mr. WEBER. Okay.
Mr. EISENBERG. cant tell us what they are.
Mr. WEBER. And Mr. Kovacs, if I remember your testimony, you
said that the EPA itself said this was going to be the most expensive regulation in history but that it wouldnt impact states.
Mr. KOVACS. Yes, thatsthey have this technical where if its a
mandate, they dontand the state has to do it, they dont count
it as
Mr. WEBER. So that was your comment, right?
Mr. KOVACS. Yes.
Mr. WEBER. Okay. Good. So let me come back to you, Mr.
Kovacs. Its the most expensive regulatory rule in history but its
not going to impact states. Does that sound commonsensical to you,
Mr. Kovacs?
Mr. KOVACS. Well, thats been the point of my testimony, that
Congress has legislated for years common sense and you havent
gotten it.
Mr. WEBER. So is your answer no, its not commonsensical?
Mr. KOVACS. Its not common sense.
Mr. WEBER. Mr. Kerr, would you agree that that statement
doesnt sound commonsensical? Its the most expensive regulation
in history but it wont impact states.
Mr. KERR. I think thats nonsensical.
Mr. WEBER. Dr. Paulson, would you agree with that?
Dr. PAULSON. Sir, I have no idea what the context is so I cant
comment.
Mr. WEBER. Mr. Eisenberg, would you agree with that?
Mr. EISENBERG. I would agree.
Mr. WEBER. Mr. Eisenberg, when an energy plant builds a
plantand I had a nuclear plant in my district when I was state
rep. When an energy plantwhen someone comes in to build an
energy plant, permitting and all, the process takes three to five
years?
Mr. EISENBERG. If youre lucky.
Mr. WEBER. If were lucky. Okay. So if its that hard on us and
the EPA is making it harder and harder and harder, and its billions of dollars, does it surprise you that some of those investors
that have that kind of money to invest actually send that money
overseas? Does that surprise you?
Mr. EISENBERG. It doesnt at all. Streamlining that process is a
priority.
Mr. WEBER. Dr. Paulson, does that surprise you?
Dr. PAULSON. Again, thats beyond my expertise, sir.
Mr. WEBER. Its above your pay level, pay grade?
Dr. PAULSON. I dont use that terminology but its beyond my expertise.
Mr. WEBER. Mr. Kovacs, does that surprise you?
Mr. KOVACS. No.
Mr. WEBER. Mr. Kerr?
112
Mr. KERR. Ill say this isthe energy policy is outside my purview.
Mr. WEBER. Okay. You know, when I was a state rep I was on
the environmental reg committee in Texas and I came up here to
CongressD.C.in March of 2010 to an Energy and Environment
Committee Meeting, National Conference of State Legislators,
NCSL. I heard with my own ears an Under Secretary for the EPA
back then say that they wanted to permit farms because of global
warming, greenhouse gases, average farm permit $26,500 per farm.
Now, they had done the math, and Doctor, I trust you can do math.
Okay, good. You didnt seem to want to weigh in on most of the
other questions. They had calculated the income streamnow, this
is their words, not minea revenue stream of $600 million. It
turns, you know, that the streams on farms and ranches arent the
only streams the EPA is interested in, okay? Six hundred million
dollars. Now, is the EPA really only interested in science when
they say they want to permit farms and it produces a revenue
stream of $600 million? Does that sound like theyre interested in
more than science, Mr. Eisenberg?
Mr. EISENBERG. So I dont know that I can effectively answer
that one but I mean, they need to find a balance.
Mr. WEBER. They do. Theyre going to kill our energy supply if
were not careful, and Dr. Paulson, were going to wind up, poor
kids are going to all be broke. Theyre going to be healthy but were
all going to be broke. Thats the danger of losing jobs and sending
our energy overseas because China and Mexico and India are not
going to follow suit.
So Im going to stop there. Thats my editorial, Mr. Chairman. I
appreciate you letting me go over. I yield back.
Chairman SMITH. Thank you, Mr. Weber, and the gentleman
from Alabama, Mr. Palmer, is recognized.
Mr. PALMER. Thank you, Mr. Chairman.
I want to start out by addressing air quality, and I have here the
air quality section from a report done by the Alabama Policy Institute that shows that since 1980, our GDP has increased by 467
percent, vehicle miles traveled up 94 percent. The populations
grown by 38 percent. Energy consumption is up 22 percent. But
emissions are down 50 percent. When you look at the air quality
index and the percentage of days per year that the air quality
index exceeded the standards, we went from about 24 percent in
1980 to about two percent. So theres no question that we have
done an excellent job of improving air quality yet the asthma rate
has gone up. I think thats been mentioned several times.
Id also like to point out that there might be other factors that
cause asthma rates to have gone up, and for instance, heres a report from UCLA, University of California, Los Angeles, in case anyone wonders what the acronym is. It says asthma disproportionately affects low-income populations, and the percentages are astonishing, frankly, that it would have such a higher prevalence
among low-income families when I thinkand Ill ask my colleague
from California, Mr. Knight, I believe that higher-income families
breathe the same air as the low-income families. So, Mr. Chairman,
Id like to enter into the record the article and the section from the
report on air quality, and Ill also point out
113
Mr. PALMER. Thank you.
As well that there is an estimate on what the ozonenew ozone
regulations will cost. I find it interesting, Mr. Kerr, that the EPA
seems to think that theres not going to be an impact. Is it possible
in your mind just rationally thinking this through that the additional regulations that are being imposed on businesses that are
going to result in substantial job losses, thats going to result in
less disposable household income, that will result in lower incomes
could have a more negative effect on health and well-being of people than any positive effect that additional regulations would impose, considering the improvements that weve made already?
Mr. KERR. Ill have to concede to the others because I dont do
air quality consulting.
Mr. PALMER. My question is, do the people who work for the
businesses of the United States and earn income do better in terms
of health and well-being than people who have no income and no
job?
Mr. KERR. Yes, sir, they do.
Mr. PALMER. Thats part of what I would consider commonsense
policy.
In May ofin a May 29, 2015, interview with PBS News Hour,
EPA Administrator Gina McCarthy stated the following: that farmers will know very clearly here we are clearly explaining that irrigation ditches are not included. We have clearly said in the rule
beyond this rule adds absolutely no regulatory or permitting issue
to agriculture whatsoever. Do you agree with that statement?
Mr. KERR. No, I dont. If I could get a chance to elaborate at
some point, Id like to give you time to ask more questions.
Mr. PALMER. Okay. Well come back to that as the last opportunity for you to speak.
Mr. Kerr, former EPA Office of Water Deputy Administrator
Nancy Stoner previously stated that the rule will not have a negative effect on small businesses. She said the Agency sought early
and wide input from small businesses while developing the proposed rule including meetings as far back as 2011. Do you agree
with this statement, that the rule will not have a negative impact
on small businesses?
Mr. KERR. I disagree with the statement. Ive talked to small
homebuilders. You know, regulatory creep is already having an effect.
Mr. PALMER. Well, that conclusion is consistent with what the
National Federation of Independent Business concluded. They had
a Small Business Optimism Index and found that small business
owners attributed regulations as the single-most important problem facing businesses today.
So you said that youd like to elaborate on something. You may
do so.
Mr. KERR. Thank you. Well, two parts. When a farmer in Chesapeake is looking to sell his land and needs a wetland delineation
done so that the prospective purchaser can determine where they
can build, were walking out into soybean fields and looking at
areas that show up as moist signatures on aerial photographs and
114
looking to see if there might be some wetland plants or stunted
vegetation in a crop field, and the Corps of Engineers before this
rule are regulating those areas as wetlands. Now, if theyre isolated, then the Corpsthe federal government does not take jurisdiction; the Commonwealth of Virginia would. If theyre adjacent to
a ditch thats adjacent to a wetland, all of a sudden they are regulating it. Now, thatthat has already crept into the procedure, and
Ive argued consistently that it shouldnt because Congress went to
the Corps back in 1990 and said create whats called a PC cropland, prior converted cropland. They hadthere was a regulatory
guidance letter the Corps put out, 907, that spelled out the procedures for that that exempted agricultural fields as long as they
didnt pond or flood for 7 to 14 days. Any portions that did would
be considered a farmed wetland and be regulated.
In 1993, the EPA and the Corps put out a rule that said were
codifying regulatory guidance letter 907, and you would think, I
thoughtIm a consultant. I know 907. They said they codified it,
which would have perpetuated this exemption for most farm fields
that were farmed prior to 1985, dont pond or flood for very long
duration and have never been abandoned for more than five years.
With that rule in place, theyre now telling me that what that
actually means is that they dont recognize the prior converted
cropland rule created by the NRCS under the Food Subsidy Act
and that the Corps doesnt recognize 907 anymore at all anywhere
at any time, and Ive repeatedly asked the question, and the rule
thats just been passed, they simply said were not changing that
because we werentthats not part of our charge. They changed
adjacency definition and that wasnt part of their charge. I would
love to see Congressto me, theres no confusion. In fact, theres
a court in Florida thats already decided this case, which I brought
to the Corps attention, which didnt get any traction, and that
judge said you can have two different rules that use the same
phrase and they mean two different things because they fall under
two federal laws. Thats not occurring, and we have farm ditches
and farmland being regulated today and itll continue.
Mr. PALMER. Mr. Chairman, just one last point. I want to point
out that Dr. Phillip Lloyd, former U.N. International Panel on Climate Change lead author, found that global temperature change
over the last 100 years is well within the natural variability of the
last 8,000 years. Standard deviation over the last 8,000 years is .98
degrees Celsius. I want to emphasis point 98
Chairman SMITH. Thank you
Mr. PALMER. Over the last years its been .85 degrees Celsius.
Chairman SMITH. Thank you, Mr. Palmer, and if you would give
us a document to put into the record as well.
Mr. Moolenaar, the gentleman from Michigan, is recognized.
Mr. MOOLENAAR. Thank you, Mr. Chairman.
Mr. Kerr, Id just like to continue following up with you and then
also talk to Mr. Kovacs and Mr. Eisenberg on some of the Waters
of the United States issues. What in your judgmentthere were
some court cases. Theres the Clean Air Act and there was an effort
by the EPA to clarify its jurisdiction. Is that really how weve gotten to this point?
115
Mr. KERR. Yes. There were a few Supreme Court decisions,
SWANCC being one, Rapanos being one of the other two or three
major ones. Thats correct.
Mr. MOOLENAAR. And so in your judgment, were they trying to
solve a policy problem that existed out there where people throughout the country were saying, you know, theres not enough water
orwhat problem other than the legal issues were they trying to
solve?
Mr. KERR. Two real problems. One is the legal question, and
there was some ambiguity because of multiple Supreme Court decisions that had to be looked at in the field, and then it became the
practical problem of how do you provide guidance to regulatory
staff and consultants thats clear, easily understandable and could
be consistently applied, not only in an area but across the entire
country. So that was the challenge, and they tried to take in
science, and in the preamble of the rule, they said those are the
three compelling issues they have to deal withscience, policy and
lawand they said that science in fact falls short in certain areas,
and theyve got to reach a policy decision thats consistent with the
law.
Mr. MOOLENAAR. And in your judgment, its gotten actually more
complicated. Some of these new definitions, rather than giving clarity, have really expanded their jurisdiction and raised a number of
new questions.
Mr. KERR. Yeah, theyve kind of moved items around, and so
things that were previously one thing like possibly an isolated
water that wasnt regulated can become an adjacent water. The
other thing is, they did create a bright line but the bright line
and Im speaking specifically to rule A8, wetlands that show a significant nexus to traditionally navigable waters, allows that to be
applied to any feature within 4,000 feet of an ordinary high-water
mark or a tributary.
Now, were not talking about rivers, were not talking about
streams, were not talking about creeks. Where I come from, there
were creaks, then there were smaller ones that were cricks. Were
not talking about those. Were way up into the headwaters of
ephemeral and intermittent streams and then going 4,000 feet out
to determine a significant nexus.
My point is that that includes virtually the entire watershed of
virtually every place that Ive looked. So they created a bright line
but it includes everything.
Mr. MOOLENAAR. So in your judgment, and I wanted to hear
from Mr. Kovacs and Mr. Eisenberg, do you view this as a significant expansion of their jurisdiction, of their authority? I mean, is
that your conclusion?
Mr. KERR. Yeah, and theyveits not any clearer. Theyve expanded jurisdiction into areas that heretofore may not have been
regulated or werent regulated, and the procedures arent any clearer. They provided some bright lines, and some of those are commendable but others are justthey kind of grab all kinds of things
and dont create the simplicity that anyone was looking for.
Mr. MOOLENAAR. Mr. Kovacs, do you view this as a significant
expansion of their jurisdiction or authority?
116
Mr. KOVACS. Well, it certainly is significant expansion of their
authority. I think what troubles me the most in this whole argument is not once in all the hundreds of pages that they have did
they ever say that the states werent doing a good job on state
waters, which is really remarkable. Second, that they never said
that the water quality that was administered by the states was in
any way impaired. Thats quite remarkable. Under unfunded mandates, they make it very clear that they are imposing no mandates
on state and local governments, and in terms of small business
they say theres absolutely no impact even though theyre greatly
enhancing jurisdiction.
This is a shell game, and this is what the whole regulatory process has become, and thats why I keep on pleading, Congress really
needs to take more action and get back in the game.
Mr. MOOLENAAR. Let me go to Mr. Eisenberg.
Mr. EISENBERG. So we just finished our annual fly-in. We had
500 manufacturers coming to town. I had dinner two nights ago
with about 25 of them to talk specifically about water issues, water
scarcity, waters of the United States, things like this, and at the
end of the meal I said look, is thisare you guys in a better place
because of this regulation, and every single one of them said no.
It is still causing them headaches. All we wanted was clarity. Had
we gotten clarity, my testimony would have been a lot different
today. We didnt get it.
Mr. MOOLENAAR. Thank you, Mr. Chairman.
Chairman SMITH. Thank you, Mr. Moolenaar.
Before we conclude, Dr. Paulson, I was going to mention to you
that we contacted the Assistant Director of the Capital Power
Plant, and he confirmed that whether it burns natural gas or coal,
the smoke is still white, and while I certainly have sympathy for
any child whos gotten asthma, you might want to check with the
doctor about his statement that whenever the smoke turned black,
the asthma became worse. Im not sure that theres a basis for
that. But I look forward to hearing more information about it as
well.
Thank youthe gentlewoman from Texas.
Ms. JOHNSON OF TEXAS. Thank you, Mr. Chairman. Let me
thank all the witnesses. I want to ask unanimous consent to put
an article from the Scientific magazine in the record that speaks
to the role of science and rulemaking process.
Chairman SMITH. We thank you all for your testimony today,
very helpful, very informative, and we stand adjourned.
[Whereupon, at 11:09 a.m., the Committee was adjourned.]
Appendix I
ANSWERS
TO
POST-HEARING QUESTIONS
(117)
118
ANSWERS
Responses by Mr. Bill Kovacs
TO
POST-HEARING QUESTIONS
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
Responses by Dr. Jerome A. Paulson
137
138
139
140
Responses by Mr. Ross Eisenberg
141
142
143
144
Appendix II
ADDITIONAL MATERIAL
(145)
FOR THE
RECORD
146
DOCUMENTS
SUBMITTED BY
CHAIRMAN LAMAR S. SMITH
147
148
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159
DOCUMENTS
SUBMITTED BY
RANKING MEMBER EDDIE BERNICE JOHNSON
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165
DOCUMENTS
SUBMITTED BY
REPRESENTATIVE DONNA F. EDWARDS
166
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174
DOCUMENTS
SUBMITTED BY
REPRESENTATIVE SUZANNE BONAMICI
175
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185
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DOCUMENTS
SUBMITTED BY
REPRESENTATIVE DON S. BEYERS
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DOCUMENTS
SUBMITTED BY
REPRESENTATIVE PAUL TONKO
220
221
222
DOCUMENTS
SUBMITTED BY
REPRESENTATIVE GARY PALMER
223
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EPA REGULATORY OVERREACH:

IMPACTS ON AMERICAN COMPETITIVENESS

COMMITTEE ON SCIENCE, SPACE, AND

Serial No. 11421

U.S. GOVERNMENT PUBLISHING OFFICE

For sale by the Superintendent of Documents, U.S. Government Publishing Office

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

Witness List .............................................................................................................

Appendix I: Answers to Post-Hearing Questions

Appendix II: Additional Material for the Record

Documents submitted by Representative Donna F. Edwards, Committee on

EPA REGULATORY OVERREACH:

The Committee met, pursuant to call, at 10:09 a.m., in Room

CHAIRMAN LAMAR S. SMITH

COMMITTEE RANKING MEMBER

Thank you, Mr. Chairman. Unfortunately todays hearing is just

Mr. KOVACS. Thank you, Chairman Smith and Ranking Member

Dr. PAULSON. Good morning, Chairman Smith, Ranking Member

CHAIRMAN LAMAR S. SMITH

RANKING MEMBER EDDIE BERNICE JOHNSON

REPRESENTATIVE DONNA F. EDWARDS

REPRESENTATIVE SUZANNE BONAMICI

REPRESENTATIVE DON S. BEYERS

REPRESENTATIVE PAUL TONKO

REPRESENTATIVE GARY PALMER

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