Thursday, February 11, 2016

Not So Fast- Supreme Court and Congress Delay Regulations

On Tuesday, February 9th 2016 the Supreme Court of the United States granted a stay request preventing the Environmental Protection Agency from beginning implementation of the Clean Carbon Plan while the legality of the regulation is challenged by a group that includes half the states. Though the DC District Court denied the stay, the U.S. Supreme Court granted the stay through the appeal process. This means that questions about the legality of the program will be adjudicated before the implementation of the program begins. The DC District Court is scheduled to begin hearing the case in June 2016 and the appeal of the decision by the losing side will not be heard by the Supreme Court until 2017.

This endangers the regulation. The next President of the United States could make significant changes to the regulation before implementation can begin even if the Clean Power Plan is upheld by the Supreme Court. The Clean Power Plan requires electrical generators in the nation to cut their CO2 emissions by 30% from 2005 levels or 18% from 2013 levels using a combination of approaches within each state, but essentially boils down to replacing coal fired electricity generation with natural gas generation and building lots of solar and wind power farms. Under the regulation the plans for compliance or the request for an extension were due to the EPA by September 2016. Now, at least in the half of the states that have challenged the law, that moves planning for compliance forward; and at least in Virginia allows us enough time to consider more carefully the environmental impact of the natural gas pipelines necessary to comply with the regulation under the Governor’s plan.

Power plants are the largest single source of greenhouse gas emissions in the United States accounting for about 33% of greenhouse gas release (and slightly more of carbon dioxide). Greenhouse gases are: carbon dioxide (CO2), fluorinated gases, nitrous oxide and methane (CH4). According to the EPA CO2 represents 84% of mass of greenhouse gas emissions and that the climate models indicate to be the cause of climate change. The Clean Power Plan is viewed by many as an essential component along with Corporate Average Fuel Economy, or CAFE standards, for cars and trucks to meet the President’s pledge to reduce the United States’ greenhouse emissions 26-28% below 2005 levels by 2025. Neither of these are based in law, but rather in regulation, and quite frankly they are inadequate to achieve the pledged goal.

Big government and detailed regulations are not the only ways of achieving greenhouse gas reductions. A simpler and more straightforward approach is a carbon tax. The carbon tax simply means that a tax would be applied per ton of carbon emitted, and the tax would be the same for heating, transportation, electricity generation, beef production, methane leaks (see California) or any other use. Many economists (including my husband) say a carbon tax is the most economically efficient approach and interferes the least with the normal operation of market forces. Also, we need additional revenue to ensure the survival of Social Security, Medicare and Medicaid and the restoration of the water, electric and road infrastructure our grandparent built.

There have also been several other regulations that have been halted, for now. Back in October 2015 the U.S. Court of Appeals for the Sixth Circuit issued an nationwide stay against the enforcement of a an Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers regulation defining the scope of the “waters of the United States” subject to federal regulatory jurisdiction under the Clean Water Act. The rule revised and expanded the definition of the waters of the United States  regulated under the Clean Water Act. The revisions were made in response to a 2001 and 2006 Supreme Court rulings that interpreted the regulatory scope of the Clean Water Act more narrowly than the Agency had.

Tucked into the Omnibus Appropriations Act covering the funding of the federal government during fiscal year 2016 passed by congress and signed into law by the President in December to become Public Law No: 114-113 were several items. The Omnibus Appropriations Act restricts the application of the Clean Water Act in certain agricultural areas and isolated bodies of water, including farm ponds and irrigation ditches.

In addition the Omnibus Appropriation Act prohibits funding for the “light bulb” standard regulations, requires that dietary guidelines issued are based on significant scientific agreement and are focused on nutritional and dietary information to ensure a balanced and scientific process in the future. Also, the act prohibits the distribution of genetically engineered salmon until the FDA publishes final labeling guidelines.

Last November the Food and Drug Administration (FDA) approved the sale of genetically engineered salmon called the AquaAdvantage salmon in the United States. As originally approved not only would genetically engineered salmon be able to be sold in the United States, the law did not require food containing ingredients derived from these salmon to be labeled as genetically engineered or genetically modified. The Omnibus Appropriations Act contained provisions requiring labeling of these fish. Now the FDA has issued an alert banning the import of any food that contains genetically engineered salmon, until FDA publishes final labeling guidelines that would inform consumers of such content.

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