William Kovacs, Senior Vice President, Environment, Technology & Regulatory Affairs, U.S. Chamber of Commerce, Washington, DC

Transcription

1 Opening Keynote Operating in a Drastically Different & Uncertain Regulatory Climate: How Will Changes at U.S. EPA Affect Ohio? Priceless Insights on Regulatory Reform, U.S. EPA & Funding, and Environmental Policies & Priorities in the New Trump/Pruitt Administration William Kovacs, Senior Vice President, Environment, Technology & Regulatory Affairs, U.S. Chamber of Commerce, Washington, DC Wednesday, July 19, :10 a.m. to 10 a.m.

2 Biographical Information William Kovacs Senior Vice President, Environment, Technology & Regulatory Affairs U.S. Chamber of Commerce, 1615 H Street NW, Washington, DC wkovacs@uschamber.com Bill Kovacs is the Senior Vice President for the Environment, Technology & Regulatory Affairs at the U.S. Chamber of Commerce. Since coming to the Chamber in March 1998, Bill has transformed a small division that concentrated on a handful of issues and committee meetings into one of the most significant in the organization. The Environment, Technology & Regulatory Affairs Division initiates and leads multidimensional, national issue campaigns on complex environmental rulemakings, comprehensive energy legislation, telecommunications reform, the systematic application of sound science and economics to the federal regulatory process, and the Chamber s overall efforts to reform the nation s regulatory structure. Before joining the Chamber, Bill practiced law in Washington, D.C., he served as chairman of Virginia s Hazardous Waste Facilities Siting Board and as chief counsel for the House of Representative s Subcommittee on Transportation and Commerce. Bill is a frequent commentator on environmental, energy, and regulatory issues that impact the business community. Bill has a law degree from the Ohio State University College of Law and a bachelor of science degree from the University of Scranton. The U.S. Chamber of Commerce is the world's largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.

3 Operating in a Drastically Different Regulatory Climate 27 th Annual Conference on Air & Water Permits Environmental Permitting in Ohio July 19, 2017 William L. Kovacs Senior Vice President, Environment, Technology & Regulatory Affairs wkovacs@uschamber.com

4 Why is Regulatory Reform Needed? Finalizes 3 high-impact rules in a six month period of time Retroactive veto of environmental permits Preemptive veto of environmental permits Mandated state energy mix under Clean Power Plan Sought control over 90% of U.S. land mass by regulating Waters of the U.S. and endangered species Controlled who can build and where under NAAQS non-attainment Allowed environmental groups to control agency priorities through citizen suit provisions in 20 environmental statutes and approximately 200 sue and settle agreements and thousands of ESA listing petitions 2

5 50,000 45,000 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5,000 Which Agencies Regulate the Most? In 2015, the CFR had a total of 175,661 pages (excluding pages with no actual regulatory text). By a wide margin, Environmental Protection regulations were the largest category. The categories Environmental Protection, Wildlife and Fisheries, Navigable Waters, Mineral Resources, and Public Lands account for 25% of all CFR pages. 0 No. of Pages Environment, Wildlife, Resources, and Public Lands 40 Protection of Environment 26 Internal Revenue 7 Agriculture 50 Wildlife and Fisheries 12 Banks and Banking 49 Transportation 29 Labor 48 Federal Acquisitions Regulations System 32 National Defense 42 Public Health 21 Food and Drugs 14 Aeronautics and Space 10 Energy 47 Telecommunications 46 Shipping 17 Commodity and Securities Exchanges 45 Public Welfare 20 Employees' Benefits 24 Housing and Urban Development 5 Administrative Personnel 33 Navigation and Navigable Waters 30 Mineral Resources 34 Education 19 Customs and Duties 15 Commerce and Foreign Trade 28 Judicial Administration 31 Money and Finance: Treasury 38 Pensions, Bonuses, and Veterans' Relief 36 Parks, Forests, and Public Property 9 Animals and Animal Products 43 Public Lands: Interior 16 Commercial Practices 22 Foreign Relations 18 Conservation of Power and Water Resources 27 Alcohol, Tobacco, and Firearms 41 Public Contracts and Property Management 25 Indians 8 Aliens and Nationality 37 Patents, Trademarks, and Copyrights 13 Business Credit and Assistance 23 Highways 44 Emergency Management and Assistance Other* * Other includes Federal Elections, Postal Service, The President, Grants and Agreements, Domestic Security, Accounts, and General Provisions. 3

6 There are no roadmaps to deregulating the Administrative State but there is advice If I let you write substance and you let me write procedure, I ll screw you every time. - Rep. John Dingell (D-MI) Served in Congress: Longest Serving Member: 59 years, 21 days 4

7 250, , , ,000 50, The Administrative State is Big; Cumulative Final Rules Since 1976 Cumulative Final Rules Final Rules 5

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9 High Impact Rules 7

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11 Putting the Administrative State Together 9

12 It may be harder taking the Administrative State apart than putting it together! 10

13 Quick Action by the New Sheriff Issues 28 Executive Orders in 100 days Signs 14 Congressional Review Act Resolutions of Disapproval Agencies ask public to identify regulations to amend or repeal How Long is the Road back from Regulatory Overload? 11

14 George Washington Regulatory Studies Center 12

15 Deregulatory Actions Undertaken Extended compliance deadlines on methane for new oil and gas wells Lifted Obama freeze on new coal leases Ended restrictions on oil drilling in artic Reversed Keystone Pipeline decision Ordered Army Corp of Engineers to allow final construction of Dakota Access Pipeline CEQ withdrawal of final guidance on GHG emissions on climate change DOI revoked mitigation policies and practices 13

16 Rules to be Revised WOTUS, CPP, NSPS, Ozone, SSM, Power Plant effluent guidelines, Regional Haze, and Department of Interior s Endangered Species mitigation policy. 14

17 Taking Apart the Administrative State State Farm v. DOT 1. An agency is seldom locked on course, but it must have increasingly clear and convincing reasons the more it departs from the path marked by Congress 2. Agency must show why it changed course and rescission is reasonable 3. Court must ascertain the facts on which the agency relied; determine whether a reasonable decision maker could respond to those facts as the agency did 4. However, a consistent administrative interpretation of a statute, shown clearly to have been brought to the attention of Congress and not changed by it, is almost conclusive evidence that the interpretation has congressional approval 15

18 Environmentalists will Sue, Sue, Sue Already filed suits against: Keystone pipeline, Reversing Arctic Protections, DC and Phila smog plans, Fracking Plan for Ohio s only National Forest, Revoking Protections for wolves, Border wall, Opening public lands to coal leasing, Value of public lands in exchanges, and Suspension of methane leak detection and repair requirements. 16

19 Citizen Suits 44,000 Pages of Regulatory Details to Litigate Statute Provision Act to Prevent Pollution from Ships 33 USC 1910 Clean Air Act 42 USC 7604 Clean Water Act 33 USC 1365 Superfund Act 42 USC 9659 Deepwater Port Act 33 USC 1515 Deep Seabed Hard Mineral Resources Act 30 USC 1427 Emergency Planning and Community Right-to-Know Act 42 USC Endangered Species Act 16 USC 1540(g) Energy Conservation Program for Consumer Products 42 USC 6305 Marine Protection, Research and Sanctuary Act National Forests, Columbia River Gorge National Scenic Area 33 USC 1415(g) 16 USC 544m(b) Natural Gas Pipeline Safety Act 49 USC Noise Control Act 42 USC 4911 Ocean Thermal Energy Conservation Act 42 USC 9124 Outer Continental Shelf Lands Act 43 USC 1349(a) Powerplant and Industrial Fuel Use Act 42 USC 8435 Resource Conservation and Recovery Act 42 USC 6972 Safe Drinking Water Act 42 USC 300j-8 Surface Mining Control and Reclamation Act 30 USC 1270 Toxic Substances Control Act 15 USC

20 Scoping out the Battle Litigation by industry to stay certain rules until Administrative review can occur Environmentalist through citizen suits will challenge projects and changes to rules Reviewing, amending or rescinding regulations will be subject to arbitrary and capricious challenges A lot of appeals, petitions for reconsideration, appeals to higher courts Deadline citizen suits challenging SIP s permit conditions, and failure to issue regulations by statutory deadline 18

21 Getting Regulations Right Pass the Regulatory Accountability Act Increases public participation before rule proposed and during rulemaking proceeding Requires agencies (including independent agencies) to lay out in detail the data (i.e. cost benefit analysis) supporting their major rules ($100 million or more annual effect). Provides a process for on-the-record administrative hearings for major rules with $100 million or more annual effect, in order to ensure that agency data and assumptions are sound. Requires agencies to choose the most cost effective rule amongst at least three reasonable options. An agency may only choose a more costly option if they identify the additional benefits and their cost and demonstrate that the benefits justify the cost. Imposes time limits on the use of interim final rules by requiring agencies to proceed to final rulemaking or rescind the interim rule. Directs courts to use the substantial evidence standard when reviewing an agency s factual findings with respect to high-impact rules that have an effect on the economy of $1 billion or more annually. 19

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23 We only need Six Senators State Florida Indiana Maine Missouri Montana New Jersey North Dakota Ohio Pennsylvania Virginia Wisconsin Colorado Delaware Michigan New Hampshire Senators Bill Nelson Joe Donnelly Angus King Claire McCaskill Jon Tester Cory Booker Heidi Heitkamp Sherrod Brown Bob Casey Jr. Tim Kaine Tammy Baldwin Michael Bennet Tom Carper Gary Peters Jeanne Shaheen 21

24 Prospects for Success? Up to us! 22

25 If you want more information on Regulatory Process Visit: Understanding the roadblocks in the permitting process and their impacts Understanding Federalism: How Feds takeover state permitting Understanding the impacts of regulations on jobs Understanding how private parties control agencies Understanding which regulations are responsible for most of the costs and benefits Understanding the need for truth in regulating, to improve transparency and accountability Understanding How Federal Regulations affect vulnerable communities Understanding the Growing Burden of Unfunded EPA Mandates on the States Taming the Administrative State: Identifying Regulations That Impact Jobs and the Economy 23