GOP likely to impede EPA efforts - House Republicans may limit funds to target environmental regulations (04/01/10)

Environmental regulations were a prime target of House Republican appropriators last year, and that is making advocates of the rules jittery about what will happen in the 112th Congress.

With a single sentence in a spending bill, appropriators can starve a program or initiative of money, crippling it or even stopping it cold. And once Republicans are in control of the House and the Appropriations Committee, they will have no trouble writing so-called limitation amendments into fiscal 2012 spending bills stating that “none of the funds” provided to an agency can be used to carry out a specified task. During the July 22 markup of the House’s fiscal 2011 Interior-Environment spending bill, GOP appropriators offered eight amendments that sought to change or block EPA policies. That tops the five amendments that sought to amend, repeal or prohibit publicity for the health care overhaul (PL 111-148, PL 111-152) offered during the markup of the fiscal 2011 Labor-HHS-Education bill on July 15, and the one amendment directly addressing the financial regulatory overhaul (PL 111-203) offered during markup of the Financial Services bill on July 29.Franz Matzner of the Natural Resources Defense Council calls limitation amendments and similar directives in appropriations bills “policy earmarks,” because they can block federal actions by shutting off funds. These may have “less legitimacy than the old-fashioned” earmarks, which merely direct a chunk of federal spending to a lawmaker’s favored projects, Matzner said. The ability to block funding for an entire program can affect people across the nation, he noted. “Appropriations bills have always been fertile territory for these kinds of mischievous policy sneak attacks,” said Matzner, climate legislative director for the council, a nonprofit environmental group. Democrats and Republicans alike have used this tactic for decades to block federal agencies from taking actions that they did not like. The “none of the funds” approach gets around a general prohibition against legislating policy changes in an appropriations bill, while still accomplishing a policy objective. In the 1980s, Sen. Ted Stevens, R-Alaska, used the tactic to preserve hunters’ right to use lead shot, and Sen. Dianne Feinstein, D-Calif., in recent years relied on it to prevent the shooting of deer in a park in Marin County, Calif. Rep. Rosa DeLauro, D-Conn., barred the Agriculture Department for several years from using federal funds to clear imports of poultry from China, arguing that such poultry products posed a health risk to consumers. That action led China to launch a protest at the World Trade Organization and was long opposed by U.S. producers of beef and pork, who feared retaliation against their own products. Since at least 1995, appropriators have also blocked the financially strapped U.S. Postal Service from ending Saturday service, a direction tucked into spending bills written by both Democrats and Republicans. The Postal Service has estimated that it could see annual savings of about $3 billion from ending Saturday service. A former staff director of the House Appropriations Committee said that lawmakers need to weigh the risks of overusing their power to withhold funds to change policy. Lawmakers do get “very broad authority to restrict or redirect the activities of the executive branch” when House and Senate appropriators agree to deny funds to a program, said Scott Lilly, who served as both clerk and minority staff director of the House Appropriations Committee. “If Congress becomes too assertive in the use of such powers it is likely to face considerable public scrutiny,” Lilly said. “In other words, there are a lot of things that Congress may do under the Constitution that are better left undone if the ruling party wishes to remain in power.” With the Republican takeover of the House, the Natural Resources Defense Council is particularly worried about the likely renewal of an effort that appropriator Steven C. LaTourette, R-Ohio, made in July to block the EPA from putting in place regulations regarding smog. The EPA in January proposed tightening the air-quality standard for ground-level ozone to between 60 and 70 parts per billion, down from a 75-ppb standard established in 2008. Ozone, a form of oxygen, forms a protective layer against the sun’s rays in the outer atmosphere. Closer to the ground, it is a component of smog. Many groups, including the American Lung Association, have supported the EPA’s effort to tighten the standard. But the Chamber of Commerce has protested that it would have “potentially devastating consequences” on business and industry, and would be “the equivalent of hitting the ‘stop’ button on development in the midst of a recession.” It applauded the EPA’s early December decision to delay until July 2011 a final decision on the new ozone rule. The House Interior-Environment Appropriations Subcommittee last year rejected LaTourette’s amendment to bar the EPA from using any of its fiscal 2011 funding to promulgate the tighter standard. The amendment failed 5-8 in a party-line vote. Republicans on the panel argued that LaTourette’s amendment would have continued environmental rules established just three years ago that have yet to be implemented or evaluated.

Sometimes, appropriators do not need to go as far as blocking funds for specific programs. Instead, just by registering their displeasure with a program they can add to the pressure on an agency to change its rules. At a June markup, House appropriator JoAnn Emerson, R-Mo., proposed and then withdrew an amendment that would have blocked the Department of Agriculture from aiding EPA if the environmental agency went ahead with plans to make dairies comply with pending regulations intended to prevent oil spills. The fat content of milk had moved its storage containers wrongly into the scope of this rule, according to a trade group, the Dairy Farmers of America. In July, the House Interior-Environment Appropriations Subcommittee adopted an amendment offered by Mike Simpson, R-Idaho, that sought to prompt EPA to exempt dairies from regulations intended to prevent oil spills. The EPA appears to have listened to these complaints and others made about its pending Spill Prevention, Control, and Countermeasure (SPCC) rule, according to Jackie Klippenstein, vice president of legislative and industry affairs for Dairy Farmers of America. “Staff at the EPA has indicated that they will soon be finalizing the proposed SPCC rule to exempt milk storage containers,” she said in a Dec. 29 e-mail. “This was the goal of many legislative efforts last year.”Democrats will remain in control of the Senate Appropriations Committee, and will fight House GOP efforts to deny funding for implementation of major environmental regulations, the health care overhaul and the financial regulatory overhaul. President Obama, with his veto pen, can backstop the Senate Democrats. But if House Republicans pepper limitation provisions throughout the appropriations bills, even as they make deep cuts in spending on domestic programs, they could prevail on some of the lesser ones as the White House bargains to protect its top priorities.

Kerry Young, CQ Staff