[Congressional Record Volume 157, Number 132 (Thursday, September 8, 2011)]
[Senate]
[Pages S5460-S5461]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JOHANNS (for himself, Mr. Grassley, Mr. Lugar, Mr. 
        Boozman, Mr. Roberts, Mr. Vitter, Mr. Kirk, Mr. Inhofe, Mr. 
        Paul, Mr. Johnson of Wisconsin, Mr. Sessions, Mr. Thune, Mr. 
        Enzi, Mr. Moran, Mr. Isakson, Mr. Blunt, Mr. Hoeven, Mr. 
        Chambliss, Mr. Nelson of Nebraska, and Mrs. McCaskill):
  S. 1528. A bill to amend the Clean Air Act to limit regulation of 
nuisance dust in areas in which that dust is regulated under State, 
tribal, or local law, to establish a temporary prohibition against 
revising any national ambient air quality standard applicable to coarse 
particulate matter, and for other purposes; to the Committee on 
Environment and Public Works.
  Mr. JOHANNS. Mr. President, I have come to the floor many times, as 
we all do, to discuss issues that are important to our States, in my 
case the State of Nebraska, on issues that are important for our 
Nation. Many times those comments deal with what seems to be the 
constant regulatory assault on our Nation's job creators.
  In meetings across Nebraska--and I did 15 townhall meetings in 
August--the second and third questions I often got, if not the very 
first, concerned the regulatory burden our Federal agencies are placing 
on our job creators.
  This administration has generated nothing short of a mountain of 
redtape, including hundreds of new regulations. Of these, at least 219 
have been categorized as significant. What that means is they will cost 
more than $100 million per year, $100 million taken out of our economy 
to finance regulation. The administration doesn't even dispute the 
mountain of redtape, nor does it dispute the size of the mountain that 
is created.
  In a letter from the President to Speaker Boehner, the White House 
identified seven regulations on its agenda, each costing not $100 
million but at least $1 billion per year. These costs take important 
capital out of our economy. These costs weigh on our job creators. 
These costs punish the little guy, and there is no doubt about it.
  This mountain is so massive, the administration has had to expand the 
Federal workforce itself to write the regulations and to enforce them. 
Employment at Federal agencies is up 13 percent since President Obama 
took office.
  With unemployment in excess of 9 percent, and underemployment greater 
than that, this administration is expanding the size of government to 
fuel more job-suppressing restrictions, and it makes no sense. It makes 
no sense to me as an individual Senator, but it makes no sense to the 
people of Nebraska.
  For this reason, I am introducing legislation with the senior Senator 
from Arizona to press the pause button on this massive wave of redtape 
before it engulfs our very economy.
  Our legislation is very straightforward. It says: Our small 
businesses are getting crushed; our citizens can't find jobs. Freeze 
the regulatory onslaught through 2013.
  But our work simply cannot stop there. We also need some targeted 
regulatory reforms to rein in government bureaucracies that are simply 
out of control. Thus, I will also be introducing two other pieces of 
additional legislation today to help temper the endless quest for 
additional power, jurisdiction and, therefore, regulation.
  The first one would close a loophole that allows agencies to grab 
power

[[Page S5461]]

without opportunity for Congressional review.
  Under the current state of the law, the Congressional Review Act 
permits Congress to use special procedures to step in and to disapprove 
of agency rules. However, in this administration, agencies have 
recently chosen to use what they call ``guidance documents'' instead of 
rules to achieve their policy preferences and to expand their power.
  I am troubled by this trend because their efforts appear to 
deliberately and intentionally circumvent American law specifically 
crafted to protect citizens from aggressive bureaucracies. We have an 
example, but there are many. I wish to use this one.
  I am talking about a guidance document issued jointly by EPA and the 
Army Corps of Engineers on May 2 of this year. It is very recent. The 
guidance documents's goal is clear--to expand Federal power over 
waterways.
  But don't take my word for it. According to the EPA's own analysis, 
the guidance would significantly expand the waters of the United States 
subject to Federal control and regulation.
  The Midwestern Farm Bureau has said the guidance ``defines 
jurisdiction in the broadest way possible.''
  This is a page straight out of this administration's playbook. If 
their policy goal is rejected by Congress, they use their regulatory 
power to accomplish their agenda any way they can. Stretch the law, 
ignore the law, claim that the statute is too ambiguous, circumvent it, 
put out a guidance document to interpret it. That is exactly what they 
are doing. We have seen this playbook used over and over by this 
administration and its Federal agencies.
  They should have gotten the message after an unsuccessful attempt 
during the last Congress to vastly expand their jurisdiction over 
virtually all waters, from irrigation ditches to farm ponds. But like a 
child that hears ``no'' from his parents, they jumped ahead, the 
administration went ahead anyway through this guidance document.
  As the North Dakota Farm Bureau president described it, the EPA's 
guidance is an end run around Congress, and I am quoting:

       If you can't get what you want with Congress' blessing, 
     make an end-run around them. That seems to be what is 
     happening here. And make no mistake. If this guidance is 
     adopted, EPA could regulate any or all waters found within a 
     State, no matter how small or seemingly unconnected to a 
     Federal interest.

  The agencies could not convince Congress to change the law. So now 
what is happening? The same goal is being pursued in a different way 
that bypasses us. Notably, both the House and the Senate have expressed 
strong concern about this guidance document. Twenty Senators sent a 
letter noting that it represents a dramatic expansion of Federal power 
over private land.
  In another letter, 41 Senators asserted that making changes to the 
scope of the agency's activities through guidance instead of through 
rulemaking is ``fundamentally unfair.'' This letter requested the 
agencies ``abandon any further action on this guidance document.'' This 
is a very significant concern. This guidance document also has shown us 
that there is a huge loophole through which agencies can circumvent the 
rulemaking process in its entirety, as well as circumventing 
congressional intent in order to expand Federal power.
  The legislation I introduced today closes the loophole. It amends the 
Congressional Review Act to cover both traditional rules and guidance 
documents--no more end run around Congress. Consequently, agencies 
would be on notice that the loophole through which they intend to 
circumvent our will and the will of the American public is now a closed 
door. In other words, citizens would have another layer of protection 
from agencies seeking to unfairly expand Federal jurisdiction.
  Finally, today I am introducing the Farm Dust Regulation Prevention 
Act. Farmers and ranchers across this Nation are concerned about the 
EPA's efforts to regulate dust. Despite what the administrator is 
saying in farm country, EPA is still in the midst of their review of 
the National Ambient Air Quality Standards for Particulate Matter or, 
put simply, ``farm dust.'' In rural America, farm dust is a fact of 
life. I grew up on a farm. It is dusty there. We kick it up while 
driving on unpaved roads or working in farm fields. Farm dust has long 
been considered to have no health concern at ambient levels. However, 
EPA is considering bringing down the hammer by ratcheting down that 
standard to a level that would be economically devastating for many in 
our rural areas. That defies common sense.
  To restore common sense to these burdensome job-threatening 
regulations and to give certainty to rural America, I am introducing 
this legislation. The bill simply says no to EPA regulating dust in 
rural America. Yet it maintains the protections of the Clean Air Act to 
public health. It provides immediate certainty to farmers in rural 
areas by preventing revision of the current dust standard for a year. 
Afterward, EPA could regulate farm dust but only if they followed a 
scientific standard. First, they would need to show scientific evidence 
of substantial adverse health effects caused by dust. Thus far, the 
strongest the EPA can conjure up in terms of science is to say it is 
``uncertain.'' Second, EPA would need to show that the benefit of 
additional regulation outweighs economic costs. These are commonsense 
standards. Yet the EPA has unfortunately been unable to see the light, 
making this legislation necessary.
  These are three commonsense regulatory reforms that are sorely 
needed: a 2-year moratorium on job-constraining regulations; No. 2, 
making agency guidance documents subject to a simple up-or-down vote by 
Congress; and stopping the ill-advised farm dust regulation. They would 
provide much certainty and relief for our Nation's job creators and our 
American workers.
  I urge my colleagues to cosponsor these important efforts. I urge the 
White House to support us. The runaway train of regulation is weighing 
down on America's ingenuity and job creation. It is time to unshackle 
American workers with these commonsense reforms.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Begich). The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President I congratulate the Senator from Nebraska 
on his typically commonsense, reasonable presentation about how we 
might take steps to deal with the smothering regulations that are 
putting a big wet blanket on job growth in this country, and the idea 
of a timeout to stop the avalanche of new regulations makes sense. Farm 
dust--the idea of regulating farm dust makes no sense. Slowing down the 
ability of Federal agencies to get around the regulatory process by 
issuing guidance, that is commonsense. These are three sensible steps 
that would help create an environment that would make it easier and 
cheaper for job creators to create private sector jobs in this country 
and I congratulate the Senator from Nebraska for his comments.
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