[Congressional Record Volume 159, Number 23 (Wednesday, February 13, 2013)]
[Senate]
[Pages S713-S714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. 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.
                                 ______