EPA Denies TSCA Petition Seeking to Phase Out Greenhouse Gas Contributors

EPA Denies TSCA Petition Seeking to Phase Out Greenhouse Gas Contributors 

On Sept. 21, the Environmental Protection Agency (EPA) published a notice in the Federal Register denying environmentalists’ petition under Section 21 of the Toxic Substances Control Act (TSCA) to regulate and phase out fossil fuels and other substances that contribute to greenhouse gas emissions. The petition also calls for further risk management rulemaking on the grounds that the use of chemicals poses “unlimited risk” to the environment.

EPA says that while it “shares the petitioners’ concerns regarding the threat posed by climate change” several elements of the petition go far beyond what the law allows in Section 21.  The agency determined that the petitioners failed to include specificity and provide convincing evidence that action under TSCA, rather than other statutory authority, is “necessary” to address climate change.

EPA also writes that the portions of the petition calling for immediate designations of certain chemicals or uses as posing an “unreasonable risk” to humans or the environment; non-regulatory action on data collection or research; and rules under other federal statutes are all invalid.  Akin to industries’ objections to the petition, EPA says citizens “may not petition” under TSCA section 21 to take actions unrelated to rules on new or existing chemical uses and reporting, or chemical test orders under Section 4 of the act. EPA says it “will consider those requests separately, as appropriate,” under the Administrative Procedure Act (APA), which allows for more general petitions but does not give agencies a strict deadline to respond, rather than the 90-day period specified in TSCA.

 

Industry Rallies On the Need for Railroad Reform After a Near Disastrous Labor Strike

Rail worker unions and freight railways avoided a national labor rail strike last week that would have disrupted commuter and passenger train services, had a disastrous impact on industries and exacerbated supply chain delays. After 20 hours of negotiations led by Labor Secretary Marty Walsh and other administration officials, the two sides agreed to forgo the rail strike a day before it was scheduled to begin at midnight on Sept. 16. President Joe Biden said the tentative agreement would ” keep our critical rail system working and avoid disruption of our economy,” with rail workers getting better pay, working conditions, and health-care-cost “peace of mind,” while railways would win by being able “retain and recruit more workers.”

President Biden was personally involved in the negotiations as he tried to balance his pro-labor stance with the need to keep the supply chain and inflation under control. Biden was also eager to avoid the political fallout of a rail strike just months before the midterm elections.

Although the agreement addresses the labor component of the rail network’s poor business model, business groups argue that more needs to be done to address the poor rail service, which has also exacerbated inflation. Rail customer advocates are trying to keep the issue elevated among members of Congress, urging them to pass legislation aimed at reducing the chronic disruptions and lack of competition that has plagued their businesses and driven up shipping rates and costs.

Since the Surface Transportation Board (STB) began requiring railroads to submit performance data in May, it has found that only about 70 percent of rail cars have reached their destinations on time. During the same four-month period, railroads fulfilled 87 percent of pickups and deliveries.

House Democrats last month introduced the Freight Rail Shipping Fair Market Act (H.R. 8649), which would provide the STB with new funding and authority to establish minimum service standards, incentivize more efficient shipping practices, expedite dispute resolutions, and prevent price increases during rail emergencies, among other measures.

The bill is not currently supported by Republicans and, if considered, would not be taken up until after the midterm elections.

Republican Lawmakers Decry MTB, GSP Lapse While Eyeing Lame Duck Action

Democrats and Republicans intend to renew the Generalized System of Preferences (GSP) and Miscellaneous Tariff Bill (MTB) during the lame duck session. During a House Ways and Means Committee hearing focused on expanding trade with Taiwan, Ranking Member Kevin Brady (R- TX) spoke in favor of the trade preference programs that expired at the end of 2020. “It was a mistake to allow two crucial job-creating programs, GSP and MTB, to have expired. They have now lapsed for almost two years,” Brady said. “Inaction on these key programs is causing American companies and their workers to lose out to foreign competitors, and additional delay will only increase this impact.”

Ways and Means Chair Richard Neal (D-MA) has hoped to include some of the trade provisions stripped from the final CHIPS and Science bill passed in July, to the year-end tax extenders bill. Sen. Mike Crapo (R-ID), the ranking member on the Senate Finance Committee, also says that talks on the trade provisions are not on hold and he hopes to consider them when they can address year-end issues.

After the hearing, Rep. Adrian Smith (R- NE)–who is campaigning to be the top Ways and Means Republican in the next Congress–told reporters that it was unfortunate that the renewal of the programs was not negotiated in the conference committee to bridge the differences between the House and Senate versions. “This should be the lower-hanging fruit. It’s bipartisan,” Smith said. The Democrats’ proposals “kind of loaded it down to the point it’s not going anywhere. We have to keep pushing. Hopefully, there will be something before the end of the year. I hope there is growing urgency by the majority, rather than just kind of accepting the status quo.”

Brady said differences between the House and Senate could most likely be resolved, but the Democrats’ push to renew Trade Adjustment Assistance (TAA), which provides unemployment benefits and health insurance subsidies for displaced workers, remains the main sticking point. He said unless the government engages in trade negotiations with a foreign nation on lower tariffs, TAA is something “Republicans simply can’t support.”

While Brady acknowledged that there are still workers losing their jobs due to foreign competition, he said that with the option of coverage through the Affordable Care Act, “there’s just no evidence that the program is needed.” He hopes, however, that the two parties can focus on what is doable in the lame duck session.

The National Association of Manufacturers says MTB would save $1.3 million a day in tariffs if it were in effect. Most of that money will not be recoverable for importers, although the bill provides refunds for entries up to 120 days before enactment. The Coalition for GSP reports that importers paid $1.8 billion in tariffs between January 2021 and June 2022 which would have been waived if GSP were in place. However, all of these payments will be refunded once the GSP is extended because CBP has processed the entries as GSP-eligible.

 

House Republicans Press EPA and Army Corps to Delay WOTUS Rule

Fifteen House Republican committee leaders sent a letter Sept. 20 to EPA Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor calling for the agency heads to delay any rulemaking on waters of the U.S. (WOTUS) until after the Supreme Court rules in an upcoming Clean Water Act (CWA) case.

The lawmakers reminded officials that the agency’s actions to advance its “radical agenda” run counter to the Supreme Court’s ruling in West Virginia v. Environmental Protection Agency, which clarifies the limits of certain agency actions, citing the “major questions doctrine. The letter comes after it was reported that EPA and the Corps sent their final “interim” definition of waters of the United States (WOTUS) to the White House for interagency review before publication, just weeks before the justices schedule oral arguments Oct. 3 in a case that seeks to narrow the WOTUS definition, Sackett v. EPA.

Members cited EPA’s attempts to revise the definition of WOTUS under the CWA as the “most serious instance where a presidential administration has sought to usurp the authority granted to it by Congress.” “For decades, rural communities, farmers, businesses, and industries who rely on clean water have dealt with legal and regulatory uncertainty, compounded with confusing and overreaching Federal regulations over what is considered a WOTUS and subject to Federal regulations and permitting,” they wrote, “West Virginia v. EPA suggests that there is ‘reason to hesitate’ with regard to this claim of authority given the two criteria outlined by Chief Justice Roberts: the history and breadth of the authority asserted and the economic and political significance of that assertion.”

The signatories, who are ranking members of several House committees, warned that they intend to exercise our “robust investigative and legislative authority to not only forcefully reassert our Article I responsibilities, but to ensure the Biden Administration does not continue to exceed Congressional authorizations.”  They asked the agency officials to provide them with a list of pending rulemakings concerning the definition of WOTUS and a list of all expected rulemakings concerning WOTUS, accompanied by the specific Congressional authority for each rulemaking by Oct. 4.