Legislative/Regulatory

Washington Waves: October 16, 2017

Washington, D.C.–The U.S. Environmental Protection Agency, never really out of the headlines, hit something of a news trifecta complete with its administrator’s move against one contentious regulation, a Supreme Court hearing involving another and a presidential nomination to fill a key job at the agency.

In a much-anticipated move, EPA Administrator Scott Pruitt issued a “Notice of Proposed Rulemaking,” to begin the process of repealing the Obama administration’s controversial and delayed Clean Power Plan, a move supporters believe could help the coal industry.

“The Obama administration pushed the bounds of their authority so far with the CPP that the Supreme Court issued a historic stay of the rule, preventing its devastating effects to be imposed on the American people while the rule is being challenged in court,” Pruitt said.

“We are committed to righting the wrongs of the Obama administration by cleaning the regulatory slate. Any replacement rule will be done carefully, properly, and with humility, by listening to all those affected by the rule.”

Reaction was swift and appeared to be largely partisan.

Leading Republicans expressed support with Sen. John Barrasso (R-Wyo.), chairman of the Senate Environment and Public Works Committee, calling the Obama-era regulation “unreasonable and unlawful.”

Sen. Tom Carper (D-Del.), the panel’s ranking member, said Pruitt and the Trump administration ended up on the wrong side of history in the effort to reduce carbon pollution with common sense actions that others, including businesses, are already taking.

Pruitt’s action also generated promises of action from several state attorneys general with potential litigation expected to drag on for years.

Waters Of The U.S.

The U.S. Supreme Court heard oral arguments on a case that grew out of the Obama administration’s Waters of the United States regulation.

In National Association of Manufacturers v. Department of Defense, the legal issue before the nation’s highest court was jurisdictional and rather narrow. Where should legal cases involving the regulation be heard first? District courts or appeals court?

Justices focused on issues ranging from concerns of inefficiencies with various district courts having to review the entire administrative record to those on whether courts needed clearer guidance on such matters.

At several points during oral arguments, at least two of the justices appeared to be holding out hope for an exit ramp that would make a ruling unnecessary.

“If, as seems likely, the rule, the Waters of the United States definitional rule, is rescinded, is this case moot?” asked Justice Ruth Bader Ginsburg.

Later in the hearing, Justice Sonia Sotomayor was even more direct.

“So, just realistically, is it possible this case would be mooted this term or is this process one that innately will take longer than this term?” Sotomayor asked.

Attorneys on both sides offered little relief, saying answers to such questions could not be known at this time.

Deputy Administrator Nomination

President Trump nominated Andrew Wheeler of Virginia as EPA’s deputy administrator.

According to the White House announcement, Wheeler leads the energy and environment team at Faegre Baker Daniels Consulting and serves as co-chairman of the firm’s energy and natural resources industry team.

Biographical information on the firm’s website listed him as vice president of the Washington Coal Club.

Headlines announcing his pick as the agency’s No. 2 position described Wheeler as a “coal lobbyist.”

EPA’s press release said he spent four years at its Office of Pollution Prevention and Toxics during the administrations of George H.W. Bush and Bill Clinton.

For 14 years, Wheeler served on the staff of the U.S. Senate’s Environment and Public Works Committee, where he was both majority and minority staff director as well as chief counsel.

He will be one of several former aides who worked under Sen. James Inhofe (R-Okla.), the former chairman and ranking member of the EPW Committee, to join Pruitt’s team at the EPA.

A staunch conservative, Inhofe perhaps is best known for describing manmade global warming as a hoax and upped the ante in his 2012 book on the subject entitled “The Greatest Hoax.”

“There is no one more qualified than Andrew to help Scott Pruitt restore EPA to its proper size and scope,” Inhofe said.

On the other side of that debate, an official with the Sierra Club called the nomination “absolutely horrifying.”

Jones Act Waiver Expires

A 10-day waiver of the Jones Act in response to Hurricane Maria that ravaged Puerto Rico expired, and the Trump administration is not considering extending it.

“We believe that extending the waiver is unnecessary to support the humanitarian relief efforts on the island,” said David Lapan, deputy assistant secretary for media operations, Department of Homeland Security, who echoed an earlier explanation from the White House.

“There is an ample supply of Jones Act-qualified vessels to ensure that cargo is able to reach Puerto Rico.”

Lapan said his agency will remain prepared to review requests on a case-by-case basis and respond quickly if a non-Jones Act qualified vessel is needed for a “national defense-related need.”

“Thus far, under the September 28 waiver, 14 vessels notified us and three have completed their movements,” he said, adding that under the waiver, vessels have until October 18 to complete their deliveries.

“Only one of those vessels is doing so under contract with FEMA. Most humanitarian relief supplies are being delivered by U.S. government—DHS/FEMA and DoD—assets, or Jones Act-qualified vessels.”

Lapan said notifications are voluntary, not mandatory, so DHS may not know all of the vessels that operated under the waiver.

Meanwhile, members of Congress continued to pick sides on the matter of Jones Act waivers and repeal efforts, and that division was not driven by partisanship.

Sen. John McCain (R-Ariz.), who introduced a bill in late September along with Republican Sen. Mike Lee (R-Utah) to exempt Puerto Rico permanently from the Jones Act, used the expiration of the waiver to push that legislation.

“Now that the temporary Jones Act waiver for Puerto Rico has expired, it is more important than ever for Congress to pass my bill to permanently exempt Puerto Rico from this archaic and burdensome law,” said McCain, a longtime critic of the law.

“Until we provide Puerto Rico with long-term relief, the Jones Act will continue to hinder much-needed efforts to help the people of Puerto Rico recover and rebuild from Hurricane Maria.”

Rep. Nydia Velazquez (D-N.Y.) asked for an extension of the waiver for Puerto Rico for at least a year.

In a letter to Trump, Velazquez told the president that many Puerto Ricans remain displaced and still lack food, water and electricity.

“The Jones Act artificially drives up the costs of supplies delivered to Puerto Rico,” she wrote.

Rep. John Garamendi (D-Calif.) led a discussion on the House floor explaining the importance of the Jones Act to maintaining a robust shipping industry.

Garamendi agreed with the Trump administration’s statement that getting goods to the island was not the problem.

In his defense of the law, Garamendi also sided with Rep. Duncan Hunter (R-Calif.).

Hunter is chairman of the House Subcommittee on the Coast Guard and Maritime Transportation, and Garamendi is that panel’s ranking member.

Great Lakes Committee

The Coast Guard is seeking nominations for those interested in serving on the Eastern Great Lakes Area Maritime Security Committee (AMSC) and the four regional subcommittees: Northeast Ohio Region, Northwestern Pennsylvania Region, Western New York Region and Eastern New York Region.

The deadline is November 6.

According to the Federal Register notice, current subcommittee vacancies expected to be filled by this request exist in the Western and Eastern New York regions.

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