A picture of Senator Mike Johanns
Mike J.
Former Republican NE
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    Statements on Introduced Bills and Joint Resolutions

    by Former Senator Mike Johanns

    Posted on 2013-02-13

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    JOHANNS (for himself and Mrs. Fischer): S. 317. A bill to require the Inspector General of the Environmental Protection Agency to include certain assessments in reports; to the Committee on Environment and Public Works.

    Mr. JOHANNS. Mr. President, I rise today to discuss changes needed at the Environmental Protection Agency to rebuild public trust and transparency.

    The reviews of this agency are almost unanimous from my constituents in Nebraska. Quite frankly, my constituents are frustrated, and sometimes just plain angry. While the details and specific issues will vary from one industry to another, the theme seems to always be the same: Nebraskans think EPA doesn't understand domestic businesses, nor do they understand job creation--from specific industries, to their employees, to their customers. They think the agency is not transparent, is arrogant, and oftentimes unresponsive. I hear this from ag producers, I hear it from the construction industry, I hear it from electricity providers, I hear it from city managers and mayors.

    Do you know what else. These folks don't speak with an R or a D beside their name but, rather, an A for American. Their message is loud, it is very clear, and it is unmistakable: EPA is overreaching, overbearing, and overstepping boundaries that have long existed. The request is always the same. They ask: Senator, what can you do? What can you do to change how they act? Nebraskans' frustration is driven by both what EPA is trying to do-- meaning the content of their rules and standards--as well as how the agency is making its decisions. So today I will be introducing several proposals to address these two areas.

    My first proposal addresses how EPA conducts business by increasing transparency in policy decisions. I am introducing a bill that brings agency guidance documents under the coverage of the Congressional Review Act. As currently written, the CRA covers only substantial agency rules. Meanwhile, EPA has made use of what they call guidance documents to simply circumvent the accountability that comes with the rulemaking process, while still making major policy changes. Using guidance documents also shields the policy change from being reversed by Congress under the Congressional Review Act.

    Perhaps, though, the most obvious example was the use of a guidance document to expand the regulatory reach of EPA and the Corps of Engineers over bodies of water not currently covered. They did this by expanding the definition of ``waters of the United States'' under the Clean Water Act. The changes are extremely controversial, so the agencies chose a path that intentionally minimized oversight and legal responsibility. In other words, they did an end-run around us--they did an end-run around the American people and Congress.

    My bill closes this loophole by ensuring that guidance documents are covered by the Congressional Review Act just as similar regulations would be.

    Senators Barrasso, Grassley, Paul, Coats, and Fischer have agreed to cosponsor this commonsense change, and I want to say thank you to them for this critical support.

    The idea behind this is simple and straightforward: Major policy changes pursued through the use of guidance documents need to come here. They need to have our scrutiny, the scrutiny of the public, and the congressional oversight rules need to apply. It is that straightforward.

    My second proposal likewise promotes transparency by addressing how the agency responds to our States. It says simply this: If a State is developing its plan to implement a rule or a standard established by the EPA under the Clean Air Act, any reasonable request that a State makes to the agency for technical support, data, or modeling must be honored.

    Here is why this is important: State governments are equal partners in much of the work the EPA does. That is the law. In fact, the law specifically recognizes the prominent role States have. Section 101 of the Clean Air Act, for example, notes that: . . . air pollution control at its source is the primary responsibility of States and local governments.

    The law further declares that its purpose is, in part: . . . to provide technical and financial assistance to State and local governments in connection with the development and execution of their air pollution prevention and control programs.

    Also, section 101 of the Federal Water Pollution Control Act declares: It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . .

    Unfortunately, the EPA is not honoring that language--although it is abundantly clear--and is instead treating State agencies as second- class citizens. For evidence of this, we need look no farther than the text of a recent court opinion.

    In a case last year involving the Clean Air Act, the DC Circuit Court of Appeals ultimately struck down an EPA rule known as the Cross-State Air Pollution Rule or the transport rule. Here is what the court said: (t)he Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders.

    Well, the trouble, according to the opinion, is that the EPA ignored the law. That is truly what the court ruled: EPA snubbed their nose at us, Congress, and therefore the law. It did not give the States the time needed to develop a plan to meet the standards. Instead, EPA tried to force-feed States the implementation plan EPA developed.

    I can say with some certainty that my home State of Nebraska is much better off when allowed to develop a plan tailored to our State, rather than to accept a ``one size fits all,'' ``my way or the highway,'' overreaching Federal plan.

    The court explained it this way: . . . (t)he Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, where EPA quantified States' good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders.

    The court's conclusion in turn was absolutely and abundantly clear: . . . EPA's Transport Rule violates federal law. Therefore, the rule must be vacated.

    That is the holding of the court.

    My bill targets the relationship between EPA and the States, and takes steps to restore the equal footing that has been eroded over the past several years by the EPA. My bill says, very simply, if a State has a question about the data or the modeling driving a standard, the EPA cannot shut them out or slow-walk their request. They have to be responsive. So no more hiding the ball, as the saying goes, just simple transparency and a true partner working relationship.

    The third good government bill I am introducing addresses broad frustration with what I would call the EPA bombshells. By that I mean the agency's failure to obey current law directing them to publish regulatory agendas. This is remarkable. It is remarkable that EPA continues to struggle with telling the public what rules are coming. But they do.

    As a child, I always enjoyed birthday parties and all the surprises. But EPA regulations are no party for people, and they shouldn't come as a surprise.

    Well, it turns out that several executive orders and existing statutes instruct EPA to tell the public what exactly is on its regulatory agenda. Section 602 of the Regulatory Flexibility [[Page S714]] Act, for example, requires the agencies to publish: During the months of October and April of each year . . . a regulatory flexibility agenda which shall contain a brief description of the subject area of any rule which the agency expects to propose . . .

    Also, Executive Order 12866 requires the EPA to update its regulatory agenda twice a year.

    These updates are supposed to be published in a document known as the Unified Agenda. It seems clear to me; unfortunately, not clear to EPA. EPA has ignored these requirements. It failed to publish an agenda in the spring of 2012, it published nothing in October, and then waited until December 2012 to publish anything at all. That is not acceptable. The administration simply played hide-the-ball until after the election.

    My bill instructs the EPA Office of Inspector General--known as EPA's OIG--to assess whether EPA obeys the law and publishes its regulatory agenda according to deadlines. The OIG is tasked with reviewing what EPA does and reporting on problems, abuses, and efficiencies. My legislation simply directs the OIG to include in its reports a tally of whether EPA has met its legal requirements to publish planned regulations.

    My point here is that EPA simply needs to meet its legal requirements. It needs to be transparent, which means simply to be honest with the American people about new regulations it is planning.

    My fourth and final EPA bill puts some teeth behind my request that the agency deal with the American people in an honest way. It shouldn't be needed, but it is. It simply says we will reduce EPA's budget if the agency fails to meet its legal deadlines for regulatory agenda setting. If a deadline passes and the agency has not published its agenda, then the Office of the Administrator loses $20,000 per week until the deadline is met. If this approach sounds familiar, that is because this bill is modeled after a provision in the highway bill that passed with substantial bipartisan margins in both the Senate and the House last year. Section 1306 of the highway bill authorizes the rescission of $20,000 per week from agencies that fail to complete documents required by transportation projects. The rationale is straightforward and accepted by Congress: If an agency does not complete its work according to reasonable schedules, then the budget gets decreased.

    I have outlined four commonsense solutions designed to respond to reasonable concerns of real people and to respond to their heartfelt frustration with this agency. But, above all, they promote transparency and they promote responsible government.

    I urge my colleagues to assist and cosponsor these proposals that bring transparency and a dose of reality to an out-of-control Federal agency.

    ______ By Mr. DURBIN (for himself and Mr. Cochran): S. 323. A bill to amend title XVIII of the Social Security Act to provide for extended months of Medicare coverage of immunosuppressive drugs for kidney transplant patients and other renal dialysis provisions; to the Committee on Finance.

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