In The News
Eye on the EPA: Transparency Request #4, Snapshot Approach Toward Economic Analysis Doesn’t Work
Thursday April 25, 2013
Washington, DC
Lifting the Veil of SecrecyFollowing the nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the Agency and the expected responses, in order to ensure that transparency is more than a buzzword. The Senators hope to restore public confidence that EPA will stop undermining public trust behind a veil of secrecy. Below is a detailed explanation of request number four of five. Click here to read all five initial requests.
EPA's Snapshot Approach Toward Economic Analysis Doesn't Work
Transparency Request #4: That written assurances be given the committee that the EPA will conduct cost/benefit analyses as required under various executive orders and as required by the Clean Air Act (CAA), Section 321(a), specifically through issuance of new guidance mandating "whole economy" modeling on major rules.
According to EPA, "Whole economy models are part of the range of tools in an economist's toolkit to examine public policy interventions" and "we have used them at the EPA in selected instances." EPA crafts Regulatory Impact Analyses (RIAs) to support the development of national air pollution regulations. RIAs contain descriptions of the potential social benefits and social costs of a regulation, including those that cannot be monetarily quantified and a determination of the potential net benefits of the rule including an evaluation of the effects that are not monetarily quantified. The RIAs are submitted to the Office of Management and Budget (OMB) for all regulations estimated to cost $100 million a year or more. These regulations are considered "economically significant" and the RIA is to include estimates of the cost and benefits of the rule, and sometimes also report estimates of "employment impacts."
Despite certain Executive Orders (E.O.) and a Congressional mandate requiring the EPA to conduct continuing evaluations of potential job loss and shifts in employment resulting from implementation and enforcement of the CAA, the Agency often conducts only a partial economy analysis of the impact of the rules versus an economy-wide analysis when proposing and finalizing individual rules. A recent review of RIAs issued since 1997 found only two RIAs that contained employment impact estimates utilizing an economy-wide analysis (computable general equilibrium analysis or CGE): the Clean Air Interstate Rule (CAIR)(2005) and Clean Air Visibility Rule (CAVR-BART)(2005).
In 2011, E.O. 13563 called out "job creation" as something to be promoted under the U.S. regulatory system and, during the Obama Administration, EPA has claimed that its new, major, economically significant regulations create jobs. However, often in response to newly issued regulations, industries frequently announce job layoffs.
Where is the disconnect?
In response to E.O. 13563, EPA's RIAs for recent major air rules try to provide employment impact estimates, but these are calculated using a formula designed to guarantee estimates that each new regulation will result in an increase in jobs. Frequently, the formula goes so far as to generate the result that the higher the cost of the regulation, the greater the projected job increase.
Instead of using an economy-wide modeling method called "computable general equilibrium" (CGE), which makes it possible to assess a regulation's effect on the price of energy and therefore the subsequent effect in other sectors not directly subject to the regulation's compliance requirements, EPA utilizes a basic job multiplier formula that boils down to 1.55 jobs per million (formula accounts for what the dollar was worth in 1987) of compliance spending increase. In each RIA, the estimate of the direct compliance cost to the sector being regulated is determined, then restated in 1987 dollars, and multiplied by 1.55. This becomes EPA's job impact of the regulation. This method always finds that the new regulation will create jobs. Taking it a step further, the higher the compliance cost, the more jobs created. Sounds like lazy, unfounded math, right?
This is not an economy-wide analysis
Is this an economy-wide analysis? Is it a partial economy analysis? Is it an economic model? It is an averaging of the weighing of impacts on four sectors based on each sector's compliance costs from 1979-1991. Where does this multiplier come from that EPA applies to the cost of new regulations that it is analyzing in the recent air RIAs? It comes from an econometric study reported in a 2002 paper, Jobs Versus the Environment: An Industry-level Perspective, by Dr. Richard Morgenstern, William Pizer, and Dr. Jhih-Shyang Shih. It considers changes in the total payments to labor in four different industries (pulp and paper, plastics, petroleum, and steel). No measure of the actual numbers of jobs is provided. It is an estimate of how total labor payments change as a result of past environmental spending. It fails to provide changes in the number of employees as EPA's RIA's may suggest. Changes in worker wages/labor payments are summarized by EPA in terms of number of jobs, when these figures are actually job equivalents.
EPA's simple multiplier formula fails to capture the scenario of a regulation's cost being passed to the ultimate end user: the customer. EPA's use of this oversimplified multiplier fails to capture indirect effects - the piece where a majority of the negative impacts occur. An economy-wide model would be a much better, more common sense option.
Utilizing an economy-wide model would take into account a regulation's potential for increasing energy prices, including electricity and gasoline. Many of the recent rules put forward by EPA and those in the pipeline to be proposed are economically significant and affect the energy sector, therefore requiring economy-wide analysis. EPA still has the CGE model used in 2005 and 2006 and, while it may need to be updated, it still exists.
For example, EPA utilized the CGE model when crafting the recent Section 812 report, "Benefits and Cost of the Clean Air Act from 1990 to 2020." Although, EPA chose not to report the labor impact changes, they were among the set of unreported results. EPA conducted two model simulations: one for compliance cost only and one for compliance cost with labor force adjustments and medical cost reductions. As the methods associated with the second model simulation are still only experimental, going forward when employing CGE, a cost-only simulation should always be provided and if alternative cases with adjustments are also completed, EPA should provide two separate runs with labor force adjustments and medical cost reductions run at one time, as well as combined, so that it is possible to understand which adjustment has the greater effect. EPA should also fully document the assumptions made for those adjustments.
Cost of EPA's Lazy Math
A recent joint National Economic Research Associates and U.S. Chamber of Commerce study discovered that an economy-wide analysis of the Utility Mercury and Air Toxics Standard (MATS) rule resulted in a negative impact on worker incomes equivalent to 180,000 to 215, 000 lost jobs in 2015, as well as a negative worker impact persisting at the level of 50,000 to 85,000 job equivalents annually thereafter. Conversely, EPA's simple multiplier formula showed that the regulation would create 46,000 temporary construction jobs and net 8,000 new permanent jobs. This disconnect by the EPA is unacceptable.
The NERA/U.S. Chamber study also found that a full economy-wide analysis consistently found negative impacts on worker incomes from each of the following regulations: MATS; CSAPR; Boiler MACT; and projected Ozone NAAQS at 65ppb. A majority of these negative impacts are associated with sectors outside those directly regulated. Investing in compliance takes away from the ability to invest in growth or expansion projects.
What's Next?
Getting EPA to consistently perform a full economy-wide analysis is the first step towards a truly comprehensive jobs estimate. The next step is to also ask and answer: will the impacts of the regulations result in layoffs or fewer new positions; long term or short term job loss; fewer jobs available overall; lower wages; fewer hours; or outright job elimination.
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Washington, DC
Lifting the Veil of SecrecyFollowing the nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the Agency and the expected responses, in order to ensure that transparency is more than a buzzword. The Senators hope to restore public confidence that EPA will stop undermining public trust behind a veil of secrecy. Below is a detailed explanation of request number three of five. Click here to read all five initial requests.
Transparency through Data Access
Transparency Request #3: Share the secret data that forms the basis of new rules and regulations
Request in full: That underlying data used to promulgate Clean Air Act rules be made public so the public can independently examine cost/benefit and other issues. That the EPA release a full set of data files for the American Cancer Society Study; the Harvard Six Cities Study; HEI/Krewski et al. 2009; Laden et al. 2006; Lepeule 2012; and Jerrett 2009. This request includes the coding of Personal Health Information (PHI).
EPA Opposes Public Release of Underlying Data since 1997
Since 1997, Congress has requested the underlying data for particulate matter studies (PM2.5) be made available to Congress and the public. Then-EPA Administrator Carol Browner opposed full public release of the data, citing confidentiality concerns and the importance of limiting access to those researchers with legitimate scientific inquiry qualifications.
In response to the continued reticence by EPA to publicly release the data, the Shelby amendment, a rider to the FY1999 Omnibus Appropriations Act, granted the federal government the right to "obtain, reproduce, publish or otherwise use the data produced from a federal grant [and to] authorize others to receive, reproduce, publish, or otherwise use" such data for federal purposes.
The war over the secret data began with two prospective cohort studies, the Harvard Six Cities Study (as reported by Dockery et al 1993) and the American Cancer Society (ACS) Study (as reported in Pope et al 1995). EPA relied on these two studies to support the 1997 PM2.5 National Ambient Air Quality Standard (NAAQS), despite significant questions over their validity. Since then, EPA has relied on updates from these same two studies to support the 2012 PM2.5 NAAQS and other major rules.
The Harvard Six Cities study is a long-term cohort study of the health effects associated with airborne pollutants. Subjects were randomly selected from six U.S. cities that had a wide range of levels of ambient particles and gaseous pollutants. The American Cancer Society Study was initiated in 1982 and was designed to study the impact of various factors on cancer development. The original prospective cohort included approximately 1.2 million men and women recruited from all 50 U.S. States, the District of Columbia, and Puerto Rico. It looked at the relationship between mortality and ambient air pollution.
In 2000, a reanalysis of both the Harvard Six Cities Study and the American Cancer Society study was conducted by the Health Effects Institute (HEI) to substitute for the full release of the data. While the reanalysis answered some initial questions regarding the data, not all of the original data and protocols were used, requiring extrapolations in order to fill in the gaps. The HEI report raised new questions that have yet to be answered.
In 2004, the National Research Council issued a report that recommended that EPA discontinue relying on the two data sets. Despite the NRC report and the lack of public access, EPA continued to rely on these studies to justify conclusions that exposure to ambient levels of ozone and PM2.5 cause chronic mortality and to calculate extraordinarily high benefit estimates to justify costly air regulations including: MATS (Mercury and Air Toxics Hazardous Pollutant Rule for Utilities); Boiler MACT; CSAPR (Cross State Air Pollution Rule); SO2 and Ozone NAAQS; and Tier III. OMB estimates that the PM benefits alone from these studies represent between 61 to 80 percent of the estimated benefits for all government regulations.
EPA Stalls Congressional Inquiries
In a March 4, 2013 letter to EPA, Ranking Member Vitter and Chairman of the House Science, Space, and Technology Committee Lamar Smith requested the underlying data from additional long term cohort studies that rely on updates from the Harvard Six Cities Study and the American Cancer Society Study. This letter repeated multiple communications from Congress requesting the release of the underlying data which are the basis for nearly all the health and benefit claims from CAA rulemaking in this Administration.
On April 10, 2013, EPW Republican Members in a letter to current Assistant Administrator for the Office of Air & Radiation and EPA Administrator nominee, Gina McCarthy, echoed the March 4th letter by requesting that underlying data from these studies which are relied upon in the promulgation of Clean Air Act rules be made public so as to be independently examined. The request included the coding of Personal Health Information (PHI) where necessary.
EPA, in response to the March 4th letter, re-sent inadequate data previously provided to the House Science, Space and Technology Committee. The Agency admitted the data provided are not sufficient to replicate analysis. Furthermore, the Agency provided multiple excuses for not obtaining and providing the data that are inconsistent with Administration guidance and the Shelby Amendment.
EPA stated that the complete set of data underlying the studies is not held by EPA but held by the scientific researchers that conducted the relevant research. OMB guidance (A-110), however, states that the federal government retains the right to "obtain, reproduce, publish or otherwise use the data" produced from a federal grant and to "authorize others to receive, reproduce, publish or otherwise use" such data for federal purposes. In addition to this broad authority to obtain all federally funded research data, the OMB guidance also stipulates that in response to a FOIA request, the federal awarding agency (in this case, EPA) shall request and the recipient shall provide to the funding agency the research data so that the agency can make the data available through procedures established under FOIA.
EPA Uses Semantics to Avoid Transparency
While the OMB circular excludes personal and confidential data from the definition of the research data that would be released as a result of a FOIA request, the language is clear that the funding agency, not the research institution, should make the determination of whether the disclosure of the data "would constitute a clearly unwarranted invasion of personal privacy" in implementing FOIA. As the Federal Register Notice on the final changes to A-110 made clear, it was not OMB's intent "to transfer authority to determine which records are exempt from mandatory disclosure under FOIA from Federal Agencies to recipients." In other words, the determination regarding the confidentiality of the data is made by the federal agency, not the grant recipient.
EPA also stated that some of the data cannot be released in their original format because they would identify specific individuals. The Congressional requests, however, ask that EPA investigate measures to remove all PHI from the data prior to release. This is not a novel undertaking. The U.S. Department of Health and Human Services recently issued guidelines on how to de-identify medical records in order to implement elements of the new healthcare law. Additionally, one of the research institutions stripped personal identifiers and released information on deaths that were originally obtained from the National Death Index (NDI), providing evidence that data containing personal information can be de-identified and released.
EPA also stated that it is unwilling to obtain and release certain data because it was funded through a mixture of public and private money. However, the OMB final Federal Register notice for A-110 makes clear that the data access provisions apply to mixed (public/private) funding research efforts, "...the amended Circular shall apply to all Federally-funded research, regardless of the level of funding or whether the award recipient is also using non-Federal funds..." EPA's mixed funding excuse is clearly refuted by OMB's language in the final Federal Register Notice issued in October of 1999.
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Eye on the EPA: Transparency Request #2, Inconsistent E-mail Practices and Policies
Tuesday April 23, 2013
Washington, DC
Lifting the Veil of SecrecyFollowing the nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the agency and the expected responses, in order to ensure that transparency is more than a buzzword. The Senators hope to restore public confidence that EPA will stop undermining public trust behind a veil of secrecy.
EPA's Inconsistent E-mail Practices and Policies
Transparency Request #2: Release exchanges in which private e-mail accounts were used to conduct official business
Thus far, EPA officials have responded to the Senators' request piece-by-piece, which demonstrates a necessary first-step for the Agency to move toward appropriate and consistent e-mail practices and policies.
The Committee has demonstrated that EPA officials routinely and repeatedly violate internal policy that forbids the use of non-official e-mail accounts to conduct official agency business. This practice has serious consequences as such behavior increases the likelihood that the Agency and its employees violate the Federal Records Act and the Freedom of Information Act. The medium used to communicate is inconsequential to these transparency statutes - if the content of the email qualifies as a federal record, then the email is a federal record and should be treated and preserved as such. The law similarly applies to all communications regardless of whether the communication occurred on a government email account, a private account, in a text message or through instant messaging. However, because EPA officials use their non-official email accounts to conduct agency business, EPA officials responsible for ensuring that all employees comply with the law experience much more difficulty ensuring such compliance. Moreover, private email accounts do not have the same security features as government accounts, so the information is not necessarily protected if sent or received on a private account.
EPA has been on notice that they are on the verge of federal records violations since 2008. After reviewing EPA's records management practices in 2008, the GAO informed EPA that the Agency needed to develop clear and consistent guidance with regard to nongovernmental email use.[1] Such a policy is necessary to ensure that any covered agency activity would still be properly preserved. In response, EPA stated that it, "has not provided formal instructions to staff on the use of secondary accounts to conduct Agency business, rather, EPA has a clear and consistent policy framework against the use of nongovernmental e-mail systems for official EPA business.[2] This policy is contained in several documents; including briefings to high-level staff when they are hired,[3] email communications reminding employees to not use their private accounts to conduct agency business,[4] as well as the Agency's "Frequent Questions about E-Mail and Records" webpage.[5]
Yet, despite the law and EPA's policy against using private email, the Committee has demonstrated that high-level employees use their private email for work purposes, possibly to evade federal transparency laws. The most flagrant example uncovered by the Committee was the practice of former Region 8 Administrator James B. Martin.[6] When the Committee first questioned Martin on his use of his personal email account, EPA quickly responded with a denial: "As detailed in public filings, the regional administrator does not use his personal mail account to conduct official business....That Mr. Martin responded to one email sent to his personal email account to confirm a meeting that appears on his official government calendar does not alter that fact."[7]
Contrary to EPA's defense of Mr. Martin's email practices, the Committee revealed that Mr. Martin regularly corresponded with individuals and groups outside EPA regarding agency business. For example, Mr. Martin communicated with General Counsel of the Environmental Defense Fund, Vickie Patton about Agency activity.[8] However, despite EPA's original denial, it appears that EPA officials had knowledge of Mr. Martin's use of personal email to conduct agency business. On April 11, 2012, Mr. Martin forwarded Jose Lozano, EPA's Deputy Chief of Staff, an email containing a conversation between Martin and Alan Salazar, Chief Strategy Officer for Governor Hickenlooper, seeking to arrange an event for Administrator Jackson.[9] Accordingly, EPA's failure to develop a comprehensive and effective policy on email use has created a means of conducting business where EPA employees can collude with their allies off line and avoid the transparency requirements of the law.
In addition to Mr. Martin, the Committee has also obtained evidence that Region 9 Administrator Jared Blumenfeld has used his private email account (@Comcast.net) for work purposes.[10] Ranking Member Vitter and Chairman Issa sent Mr. Blumenfeld a letter asking for his cooperation in identifying federal records from his private account.[11] Instead of cooperating with this request, EPA headquarters replied on Mr. Blumenfeld's behalf, once again indicating that there was no problem with Mr. Blumenfeld's behavior.[12] In fact - when the media questioned EPA about Mr. Blumenfeld's email practices, EPA responded that, "There's nothing wrong with this."[13]
Moreover, in review of the limited document production released pursuant to the Richard Windsor FOIA request, the Committee has discovered that Acting Administrator Perciasepe, Associate Administrator Arvin Ganeson and former Deputy General Counsel Tseming Yang have also used their private email for work purposes.
Finally, it has recently come to the Committee's attention that EPA encourages the use of instant messaging via platforms like "Sametime Connect," "G-Chat," and, AOL Instant Messenger to communicate with individuals outside the agency.[14] While EPA policy explicitly states that content on IM's can be considered federal records[15], the Committee is not aware of a single circumstance where EPA has released such a message in response to a FOIA or Congressional request. While Acting Administrator Perciasepe has encourage the Inspector General to focus on potential problems relating to EPA's treatment of IM's[16], this merely acknowledges the problem, but provides no solution.
Without the dedicated cooperation of EPA, it is impossible to determine the scope of these record keeping problems. We know that EPA employees are using their private email accounts and IM's to conduct Agency business. However, we don't know how this information is being captured or preserved. Therefore, it is imperative that EPA recognize the consequences of such practices and that they must take corrective steps to ensure all Agency business in conducted in compliance with the letter of the law.
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[1] June 2008 GAO Report Federal Records: National Archives and Selected Agencies Need to Strengthen E-Mail Management, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=3e2f4fe8-ae16-4acb-957c-e5793b013437
[2] Id., appendix III (2008 GAO Report on EPA Records Management)
[3] 2009 Powerpoint EPA Records and ECMS Briefing: EPA Incoming Political Appointees, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=60afa4b3-3e5d-4e6f-b81e-64998f0d3c67
[4] NRMP Alert: Do Not Use Outside Email Systems to Conduct Agency Business, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=c3085cfe-781c-4175-b8c2-12d76c2cc88c
[5] EPA Website FAQ about E-Mail and Records, http://www.epa.gov/records/faqs/email.htm#q1
[6] January 29, 2013 Press Release: Vitter, Issa Investigate EPA's Transparency Problem, More Suspicious E-mail Accounts, http://www.epw.senate.gov/public/index.cfm/press-releases-all?ID=872aba41-b894-3fb4-45da-a85dc30a87b3
[7] CJ Ciaramella, EPA Official Resigns, WASHINGTON FREE BEACON (Feb. 19, 2013, 3:30 PM), http://freebeacon.com/epa-official-resigns/.
[8] May 2012 Emails between Vicki Patton and Regional Administrator James Martin, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=8432c575-ed1a-4aab-b614-7e1623096a86
[9] April 2012 Emails between Jose Lozano and Regional Administrator James Martin, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=648376a0-cd4f-447a-88af-066e1b6ea989
[10] March 19, 2013, Press Release: Vitter, Issa Question EPA Region 9 Administrator on Personal Email Use, http://www.epw.senate.gov/public/index.cfm/press-releases-all?ID=8311f916-0582-7f13-d6ff-ece347aed24e
[11] March 18, 2013, Letter from Sen. Vitter, Rep. Issa to Region 9 Administrator, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=162e293c-f079-442d-a0ca-a6884051a8d7
[12] April 9, 2013, EPA response to Sen. Vitter, Rep. Issa March 18, 2013 letter, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=b161e98c-a995-4efc-af1c-c4bd72418894
[13] Erica Martinson, EPA on Vitter, Issa email probe: This is how email works, Politico Pro (Mar. 19, 2013, 12:17:47 PM), https://www.politicopro.com/tipsheet/energy/?id=4130; see e.g. CJ Ciaramella, Windsor Knot Tightens Another EPA official using private email, The Washington Free Beacon (Feb. 26, 2013), http://freebeacon.com/windsor-knot-tightens/.
[14] 2010 EPA Powerpoint Web Collaboration Tools WWG 2010, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=9ff2bab4-4e26-4fe1-b9b7-bc7f2f8bc51e
[15] National Archives FAQ about Instant Messaging, http://www.archives.gov/records-mgmt/initiatives/im-faq.html
[16] April 2013 EPA Acting Administrator Perciasepe letter to EPA employees, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=648376A0-CD4F-447A-88AF-066E1B6EA989&b;=8ce8ca6f-58f2-45e2-9a2c-c1ba65ec88f1
Washington, DC
Following the nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the agency and the expected responses, in order to ensure that transparency is more than a buzzword. The Senators hope to restore public confidence that EPA will stop undermining public trust behind a veil of secrecy. Today, they are lifting the veil of secrecy on EPA's lack of response to their first request.Transparency Request #1: The EPA will commit to a new guidance to ensure official business is conducted solely on official government e-mail accounts
Request in full: That the EPA issue new guidance drafted by its Office of General Counsel that clearly outlines: a) standards and procedures to ensure that all official business is conducted solely on official government email accounts; and b) standards and procedures for responding fully, truthfully, and timely to FOIA requests and Congressional inquiries. The guidance document should also establish training regimes in these areas for all appropriate EPA staff, as well as penalties and procedures for dealing with deviations from the guidance.
The Committee's investigation into EPA's transparency practices has uncovered numerous flaws that must be remedied if the agency is to honor the President's well-known claims of commitment to transparency. These flaws involve several EPA practices ranging from the abuse of federal transparency laws through excessive redactions within disclosures, to the use of secondary and non-official email accounts to conduct official government business; these accounts have operated as a means by which EPA purposely hides information from Congress and the public.
When President Obama first took office, he declared that his Administration would create "an unprecedented level of openness in Government."[1] The Freedom of Information Act[2] (FOIA) is the governing statute that empowers every American with the right to know what "the government is up to."[3] The President has also emphasized that "[t]he FOIA is a key way in which government transparency is realized."[4] Unfortunately, EPA has spent considerable resources in an effort to thwart the objectives of FOIA, also known as the "sunshine law." In one recent instance, the agency released sensitive information about farmers and private citizens to environmental allies[5]. However, it continually abuses the discretionary exemptions in the law to hide agency information from the public.
Moreover, the agency has expedited the requests of "friends of the agency,[6]" while delaying its response to individuals outside of EPA's allies who have submitted sound requests for transparency. The EPA has essentially implemented FOIA in reverse, being transparent with private citizens' information, but subversive with their own. Further frustrating the process, the agency has improperly denied states and watch dog groups fee waivers in an attempt to block unwanted scrutiny - despite the requestor's clear public interest objectives in making the request. According to the Society for Environmental Journalists (SEJ), "The EPA is one of the most closed, opaque agencies to the press" and "the policies she [McCarthy] endorsed bottleneck the free flow of information to the public."[7] As a result, Congress, the press, and ultimately the America people have been denied their statutory right to know what the EPA is up to.
The Committee's investigation of EPA's email practices originated with concerns over former EPA Administrator Lisa Jackson's use of a secondary, alias email account. The discovery of the "Richard Windsor" account triggered a closer look into EPA's transparency practices, and like pulling a string on a cheap sweater, the lengths to which EPA has tried to hide their actions from the public and from Congress have begun to unravel. In the first instance, while EPA defends Lisa Jackson's practice of using an alias email account, arguing essentially "everyone is doing it," the Committee's investigation has revealed that the Richard Windsor account practices were well beyond the scope of those used by prior Administrators. In one shocking example, the Committee has obtained an email that demonstrates Lisa Jackson actually assumed the identity of a fictional Richard Windsor when an unsuspecting individual emailed "Richard" and asked "him" to pass along information to the Administrator.[8] In other words, Richard Windsor was not merely a secondary email account - it was, in the full meaning of the word, a false identity!
Just as troubling as the false identity is the rampant use of alternative methods to communicate with outside groups free of public scrutiny. The Committee has obtained an EPA training document that instructs its employees on "creative solutions to dealing with federal constraints."[9] This document instructs, "As long as we are only participants, not administrators of a web collaboration site, the site is not limited to those same constraints." Moreover, EPA instructed its employees to use AOL's instant Messenger with non-EPA employees, and noted that it allows for "file transfers."[10] In light of the recent admission that EPA has not been properly handling instant messages under the Federal Records Act and under FOIA,[11] these documents are alarming as they reveal the lengths the agency has undertaken to remain opaque.
No less important is the way EPA treats documents turned over pursuant to FOIA requests. The Committee has expressed its concern for EPA's inappropriate release of private and personal information of farmers.[12] Such carelessness stands in sharp contrast to EPA's handling of its own information. The Committee has also observed an excessive application of FOIA exemptions to redact information that should be open to the public. For example, EPA has repeatedly invoked exemption 5, which is meant to safeguard the government's deliberative policymaking process,[13] to redact employees' reaction to news articles - information that is clearly inconsequential to an agency's deliberative process.[14] In other email exchanges, EPA has redacted the entire email message, including the subject, the text and signature block by repeatedly claiming deliberative process under exemption 5.[15] EPA's approach to discretionary redactions stands in opposition to guidance given by the Justice Department: "The [FOIA] should be administered with a clear presumption: In the face of doubt, openness prevails."[16]
Finally, it appears that EPA has a strategy of delaying FOIA responses to unfriendly groups; yet provides friendly groups with a complete and timely response. In one example, the Committee uncovered an email that detailed this strategy:
Unless something has changed, my understanding is that there are some standard protocols we usually follow in such FOIA requests. One of the first steps is to alert the requestor that they need to narrow their request because it is overbroad, and secondarily that it will probably cost more than the amount of $ they agreed to pay.[17]
A key example of EPA applying this strategy includes the recent denial of a FOIA request from several states relating to the regional haze program. Despite clear guidance that states are entitled to a fee waiver, as made clear in their request,[18] EPA denied their FOIA request on the basis that the states "have not expressed a specific intent to disseminate the information to the general public."[19] This waiver denial is a clear abuse of discretion and is only serving as a means to delay disclosure of documents likely containing evidence of collusion with far-left groups which could embarrass the agency, yet the EPA's selective fee application and secrecy remains a game of hiding information that the states are entitled to obtain.
In light of these barriers to transparency, it is critical that the next EPA Administrator recognize that the path the agency currently follows is unacceptable and must commit to taking meaningful and concrete measures to ensure that the agency operates in the sunlight.
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[1] Memorandum from President Barack Obama, Transparency and Open Government (January 21, 2009) available at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment.
[2] See 5 U.S.C. § 552.
[3] DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989); see also U.S. Dep't of Justice, The Freedom of Information Act (FOIA): About, http://www.justice.gov/open/foia.html (last accessed Apr. 19, 2013).
[4] See The White House Blog, Sunshine Week: In Celebration of Open Government (Mar. 11, 2013) available at http://www.whitehouse.gov/blog/2013/03/11/sunshine-week-celebration-open-government.
[5] April 4, 2013 Fischer, Vitter letter to EPA Acting Administrator Perciasepe, http://www.epw.senate.gov/public/index.cfm/press-releases-all?ID=D65C575B-C434-25DC-9032-D4A9F6E329DE
[6] Competitive Enterprise Institute v. U.S. EPA Complaint for Declaratory and Injunctive Relief re: FOIA, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=C90D98CD-056C-4CA8-B8CE-034D2D240C0F&b;=384056b5-9ac3-472b-861d-6fb9a868ae48
[7] April 10, 2013 Open letter from Society of Environmental Journalists, http://www.sej.org/new-epa-head-must-ensure-transparency-reversing-block-reporters-access
[8] March 11, 2010 ‘Richard Windsor' email to Robert Goulding, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=C90D98CD-056C-4CA8-B8CE-034D2D240C0F&b;=c90d98cd-056c-4ca8-b8ce-034d2d240c0f
[9] U.S. EPA Web Collaboration Tools WWG 2010 powerpoint, http://semanticommunity.info/@api/deki/files/993/Web_Collaboration_Tools_WWG_Oct_06.ppt
[10] Same as above
[11] April 2013 EPA Acting Administrator Perciasepe letter to EPA employees, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=C90D98CD-056C-4CA8-B8CE-034D2D240C0F&b;=8ce8ca6f-58f2-45e2-9a2c-c1ba65ec88f1
[12] April 4, 2013 Fischer, Vitter letter to EPA Acting Administrator Perciasepe, http://www.epw.senate.gov/public/index.cfm/press-releases-all?ID=D65C575B-C434-25DC-9032-D4A9F6E329DE
[13] U.S. Dep't of Justice, Guide to the Freedom of Information Act: Exemption 5, http://www.justice.gov/oip/foia_guide09/exemption5.pdf (last accessed Apr. 8, 2013).
[14] [On file with Authors].
[15] See Part A, Release 2 - HQ- FOI-01268-12, Email from Allyn Brooks-LaSure to Richard Windsor (Apr. 15, 2009, 01268-EPA-97); Email from Seth Oster to Richard Windsor (June 24, 2009, 01268-EPA-207); Email from Scott Fulton to Richard Windsor (Aug. 15, 2009, 01268-EPA-261), http://www.epa.gov/foia/docs/Part-A-HQ-FOI-01268-12-ReleaseRedact-NoAttachments-Production-2.pdf (last accessed Apr. 8, 2013); see also Part C, Release 2 - HQ-FOI-01268-12, Email from Seth Oster to Richard Windsor (Jan. 20, 2010, 01268-EPA-527); Email from Seth Oster to Richard Windsor (Jan. 8, 2010, 01268-EPA-518); Email from Arvin Ganesan to Richard Windsor (Feb. 24, 2010, 01268-EPA-548), http://www.epa.gov/foia/docs/Part-C-HQ-FOI-01268-12-ReleaseRedact-NoAttachments-Production-2.pdf (last accessed Apr. 8, 2013).
[16] Memorandum from President Barack Obama, Transparency and Open Government (January 21, 2009) available at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment.
[17] January 20, 2011 Al Armendariz emails re: EPA policy for FOIA ‘protocols,' http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=C90D98CD-056C-4CA8-B8CE-034D2D240C0F&b;=47c7624c-8315-487e-ba75-df319b8615be
[18] February 6, 2013 States' petition re: Freedom of Information Act Request, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=C90D98CD-056C-4CA8-B8CE-034D2D240C0F&b;=fd40b942-a386-46fb-b4f2-fa577096348d
[19] March 15, 2013 State AGs' FOIA appeal, http://www.epw.senate.gov/public/index.cfm?a=files.serve&file;_id=C90D98CD-056C-4CA8-B8CE-034D2D240C0F&b;=d3d7f5b1-b83f-4790-bda4-6ab0d842bba7
Washington, DC
Following last week's nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the Agency and the expected responses to ensure transparency is more than a buzzword, and hopefully restore public confidence that the EPA will stop undermining public trust behind a veil of secrecy.EPA is running a complex scheme of secret settlement negotiations, sometimes using alias or private email accounts, abusing the Freedom of Information Act, and keeping their scientific data hidden while feigning true economic analysis. The EPA is clearly afraid of being transparent, which defies all the promises of President Obama, former Administrator Lisa Jackson, and the nominee McCarthy.
If you're curious how the EPA is getting away with issuing their expensive regulations, and hiding critical information from the public, then tune in next week as the EPW Committee Republicans will explain this abuse of power and why it exists within our federal government.
Below is the list of the five transparency requests repeatedly made of EPA. The Committee Republicans will share how and why EPA is shunning the law and implementing each one of these tactics, their secret coordination with far-left environmental groups, and why the data remains hidden. Could it be that EPA doesn't want to respond to the majority of these requests is because they know their secret and dishonest efforts will have to come to an end?
Five Underlying Transparency Requests
1. Request: The EPA will commit to a new guidance to ensure official business is conducted solely on official government e-mail accounts
2. Request: Release exchanges in which private e-mail accounts were used to conduct official business
3. Request: Share the secret data that forms the basis of new rules and regulations
4. Request: The EPA will provide written assurances that future rule-making will have economy-wide analyses
5. Request: That EPA make notices of intent to sue, petitions for rulemaking or new guidance tracked, listed, and publicly available on the Agency's website and is regularly updated
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Eye on the EPA: How would Gina McCarthy Change EPA’s Questionable Transparency Practices for the Better?
Thursday April 11, 2013
Washington, DC
A Closer Look at Gina McCarthyToday the Senate Environment & Public Works Committee will hold a nomination hearing for Gina McCarthy, nominee to lead the U.S. Environmental Protection Agency (EPA) and current EPA Assistant Administrator for the Office of Air and Radiation.
How would Gina McCarthy Change EPA's Questionable Transparency Practices for the Better?
The EPW Committee Republicans have released the following five unresolved transparency concerns (four of which remain unresolved) they have previously discussed with McCarthy and expect answers:
1. Request: The EPA will commit to a new guidance to ensure official business is conducted solely on official government e-mail accounts
• That the EPA issue a new guidance that clearly outlines a) standards and procedures to ensure that all official business is conducted solely on official government email accounts; and b) standards and procedures for responding fully, truthfully, and timely to FOIA requests and Congressional inquiries. The guidance document should also establish training regimes in these areas for all appropriate EPA staff, as well as penalties and procedures for dealing with deviations from the guidance.
2. Request: Release exchanges in which private e-mail accounts were used to conduct official business
• That all private email accounts of Regina McCarthy are exhaustively reviewed, and that all emails regarding official EPA business are produced unredacted to the committee. If no such emails exist, that an affidavit stating that fact by McCarthy be produced for the committee. In addition, we are asking for transparency on specific documents the committee has obtained in unredacted form. An outline of specific emails that should have already been made available to the public and Congress was provided to EPA staff.
3. Request: Share the secret data that forms the basis of new rules and regulations
• That underlying data used to promulgate Clean Air Act rules be made public so the public can independently examine cost/benefit and other issues. That the EPA release a full set of data files for the American Cancer Society Study; the Harvard Six Cities Study; HEI/Krewski et al. 2009; Laden et al. 2006; Lepeule 2012; and Jerrett 2009. This request includes the coding of Personal Health Information (PHI).
4. Request: The EPA will provide written assurances that future rule-making will have cost-benefit analyses
• That written assurances be given the committee that the EPA will conduct cost/benefit analyses as required under various executive orders and as required by the CAA, Section 321(a), specifically through issuance of new guidance mandating "whole economy" modeling on major rules.
5. Request: That EPA make sue-and-settle public and make petitions for rulemaking or new guidance tracked, listed, and publicly available on the Agency's website and is regularly updated
• That all petitions for rulemaking or the promulgation of guidance received by the Agency, including by the Office of the Administrator and/or by the Office of General Counsel, be tracked, listed, and made publicly available, including copies of the documents, via readily available links on the Agency's website. This information is to be regularly updated. That all notices of intent to sue received by the Agency, including by the Office of the Administrator and/or by the Office of General Counsel be tracked, listed, and made publicly available, including copies of the documents, via readily available links on the EPA website. This information is to be regularly updated.
Click here to read the PDF version of the EPW Republican Senators' letter.
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Washington, DC
A Closer Look at Gina McCarthyThis week the Senate Environment & Public Works Committee will hold a nomination hearing for Gina McCarthy, nominee to lead the U.S. Environmental Protection Agency (EPA) and current EPA Assistant Administrator for the Office of Air and Radiation.
EPA Policy: No New Power Plants
Greenhouse Gas New Source Performance Standards (NSPS) for New Plants
In April 2012 the EPA proposed New Source Performance Standards for greenhouse gas CO2 for new coal, oil and natural-gas fired power plants. In its current state, the regulation would effectively prohibit the construction of new coal-fired power plants by requiring the installation of technologies that are not commercially available.
The proposal for new power plants abandons decades of precedence under the Clean Air Act (CAA) by setting one standard for all fuel types used in electricity generation, the standard for natural gas plants. However, the standard for natural gas would be impossible for coal and oil to meet. New coal fired power plants would have to utilize carbon capture and storage (CCS) technologies that currently do not exist.
The United Mineworkers of America project the loss of up to 250,000 jobs in the coal production, transportation, manufacturing, construction, and generation sectors. As of February 2013 a total of 226 coal units and representing over 38,000MW of electric generating capacity in 30 states are expected to close, at least, in part due to EPA policies.
What's next?
Today EPA noted the Agency is on a timeline to finalize the standards for new sources this spring and that work on a proposal for existing plants "will be on the table for next year."
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Eye on the EPA: Renewable Fuels Standard & The Problems That Come with It
... specifically gas prices
Tuesday April 9, 2013
Washington, DC
The Renewable Fuels Standard (RFS) mandates the minimum volumes of biofuels that must be blended into our nation's transportation fuel supply, and it does so on strict timetables. The RFS calls for annually-increasing amounts of advanced biofuels, biomass-based diesel, cellulosic ethanol, and conventional ethanol be blended by 2022, and the associated costs, namely higher prices at the pump, inevitably will be passed on to consumers.Environment and Public Works Committee Republicans have pressed for answers and economic analysis of the RFS from Gina McCarthy, President Obama's nominee to lead the U.S. Environmental Protection Agency (EPA). McCarthy is currently the EPA Assistant Administrator for the Office of Air and Radiation.
Tier III Limits & Rising Gas Prices
In late March, EPA proposed new emissions limits for passenger cars and trucks and lower limits on the sulfur content of gasoline. The proposed standard will likely raise the cost of gasoline for consumers up to 9 cents per gallon, and, when combined with additional fuel regulations, fuel costs could increase even more.
Deadlines & Renewable Identification Numbers (RINs)
In order for manufacturers and refiners to meet RFS volumetric requirements, the industry's obligated parties must produce and/or purchase RINs, which are assigned to each gallon of renewable fuel and can be traded, used for compliance, or rolled over to the following year.
As renewable mandates increase each year and demand for transportation fuel decreases, refiners are forced to blend more biofuels into a gasoline and diesel pool that is further reduced by companies trying to minimize their RFS compliance obligation. As companies are forced to spend more money on purchasing RINs, that extra cost will be passed to consumers.
Rampant Fraud
EPA's website lists the companies that sell RINs. However, there is no finalized system in place that verifies whether these companies actually produce the gallons of fuels that the RINs are associated with.
This has led to producers relying on fraudulent RINs purchased from fake companies - that had been listed on the EPA website. When the companies were exposed as frauds, EPA held the producers responsible for purchasing illegitimate RINs, fined them for not being in compliance, and required them to purchase more RINs, costing the companies millions of dollars.
"Blend Wall" Challenges
Due to infrastructure constraints, low consumer demand, and the majority of engines not designed or warranted to operate using fuel with more than 10 percent ethanol (E10), a "blend wall" is in the process of being hit. EPA issued a waiver in 2012 to allow the introduction of 15 percent ethanol (E15), which is not approved for use in all engines therefore creating a situation ripe for "misfueling" and the voiding of manufacturers warranties. The inflated volumes of ethanol required to be blended and the volume of gasoline demand do not correspond. Market prices for ethanol RINs have skyrocketed at least in part due to the imbalance caused by the approaching "blend wall." Increased uncertainty in the RIN market, including unrealistic RFS mandates, recent fraud in the biodiesel RIN market, and decreased gasoline demand continues to drive up prices. The volatility in this mandate-created market is passed along to consumers in the form of higher gasoline prices.
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Eye on the EPA: Failure to Share Scientific Data with Congress, American Public
Monday April 8, 2013
Washington, DC
A Closer Look at Gina McCarthyThis week the Senate Environment & Public Works Committee will hold a nomination hearing for Gina McCarthy, nominee to lead the U.S. Environmental Protection Agency (EPA) and current EPA Assistant Administrator for the Office of Air and Radiation.
EPA Failure: Sharing Scientific Data with Congress, American Public
When the President took office in January of 2009, he promised his Administration would be the most transparent in history. Former Administrator Lisa Jackson once promised to focus on core issues that would "be implemented with unparalleled transparency."
Ms. McCarthy and other EPA officials have repeatedly backtracked on promises to Members of Congress to make the scientific data available to Congress, the public, and scientists over the last year and a half.
This war over the secret data dates back to 1997, when during the 105th Congress, then-EPA Administrator Carol Browner refused to provide Congress and the public access to underlying data for their rulemaking. In response, Congress passed legislation mandating that federal agencies ensure that data produced under an award be made available to the public.
Recently, in a letter to EPA from EPW Ranking Member David Vitter (R-La.) and House Science, Space, and Technology Chairman Lamar Smith (R-Texas), the two Senators reiterated multiple communications from Congress requesting the release of data which are the basis for nearly all the health and benefit claims from Clean Air Act rulemaking in this Administration.
EPA relies on certain studies to say that certain pollutants cause chronic mortality, and to calculate extraordinarily high benefit estimates to justify a number of costly CAA regulations. In fact, estimates say that up to 80 percent of all perceived benefits from regulations are the result of these studies, yet Congress and the Public can't see the EPA's data from them.
So why, after nearly 20 years of requests, is EPA still trying so hard to prevent the release of the scientific data? What is EPA afraid of?
Additional new rules and regulations are expected again to be some of the most costly the federal government has ever issued, yet the public, scientists, and Congress have not yet seen the scientific data verifying the EPA's claims.
EPW Republicans are still waiting to see the EPA's secret data used in the following rules:
• Cross State Air Pollution Rule finalized in July 2011
• Mercury and Air Toxics Standards finalized in December 2011
• Particulate Matter2.5 National Ambient Air Quality Standards finalized in December 2012
• Boiler MACT reconsidered final rules issued January 2013
• Tier III Gasoline Sulfur Rule finalized in April 2013
• Ozone National Ambient Air Quality Standards expected in October 2013
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Washington, DC
Next week the Senate Environment & Public Works Committee will hold a nomination hearing for Gina McCarthy, nominee to lead the U.S. Environmental Protection Agency (EPA). She has served as the EPA Assistant Administrator for the Office of Air and Radiation for the last four years.Unified Agenda
The Unified Agenda provides the public with a list of upcoming agency actions including: pre-rule actions, proposed rules, final rules or interim final rules, long-term actions, and completed actions. The Unified Agenda is designed to give job creators the opportunity to plan ahead for new regulations, without proper lead-time, businesses are left with uncertainty, which can halt capital investments and job growth.
During the unprecedented ten-month delay of the 2012 Unified Agenda, EPA proposed several economically significant rules that imposed at least $100 million in annual compliance costs - per rule - to private entities.
Below is a list of upcoming expected regulations and corresponding costs from EPA. Following that is a list of EPA's failures, including to withstand judicial review.
REGULATORY ONSLAUGHT
Since January 2009, EPA has issued or proposed**:
• over 2,900 pages of greenhouse gas (GHG) regulations
• over 500 pages of GHG guidance and sector-specific white papers
• 68 rules, 3 of which set GHG standards for cars and trucks, expected to cost $208.96 billion
• GHG regulations are expected to cost more than $300 to $400 billion each year
• GHG New Source Performance Standards (NSPS) for New Plants proposed rule effectively bans the construction of new coal fired power plants and along with additional EPA policies drives the expected shut down of 226 coal units, representing over 38,000MW of electric generating capacity in 30 states, and the loss of up to 250,000 related jobs.
• EPA has since gone on to issue an ex post facto apology for violating its own scientific standards for the scientific findings that are the basis for these regulations
• Utility MACT final rule is estimated to cost $35 billion in upfront spending and $9.6 billion annually
• Boiler MACT Reconsidered final rule estimated to cost $11.7 billion by the industry; $4.7 billion by the EPA
• Cross State Air Pollution rule, estimated an increase in consumer power prices of as much as $514 million per year in 2012 and 2013
Rules coming down the pipeline:
• GHG standards for existing power plants - cost unknown
• GHG standards for new and existing refineries - cost unknown
• Ozone National Ambient Air Quality Standards (NAAQS), estimated to cost $19 to $90 billion annually
• Cooling Water Intake Structures, estimated by EPA to cost $3 billion to $4.6 billion annually
• Coal Ash rule, estimated by EPA to cost $587 million to $1.4 billion annually for the next 50 years
**Above estimates based on EPA's own data; Affected industries estimate much higher costs
EPA'S GARBAGE CAN OF REGULATIONS & FAILURES
"I think part and parcel of restoring the agency's stature is for the agency to be able to sit up tall and say, our rulemaking stands on its face, and it stands up in court," Lisa Jackson said on January 14, 2009.
However the EPA has a poor track record with the legality of their rule making. Many of the EPA's major overreaching rules under the leadership of Lisa Jackson and Gina McCarthy have been blocked or defeated by the Courts. To name a few...
• EPA was projecting far too much production of cellulosic biofuel for 2012 under the Renewable Fuels Standard (RFS) according to federal court in January 2013.
• The EPA attempted to force the Sackett family of Idaho to stop building their home they purchased on land that had proper permits for building. The EPA threatened to fine the Sacketts $32,500 a day and refused to allow them to challenge the agency's regulatory authority. The Sacketts prevailed in the Supreme Court in March 2012.
• Nucor has been making efforts to build a steel refining facility in South Louisiana. Unfortunately, Gina McCarthy's office has put up perpetual roadblocks to the 1,000+ jobs and the permits necessary to move forward.
• Infamous former EPA Region 6 Administrator Al Armendariz became the poster child for trying to shut down a Range Resources hydraulic fracturing project in Texas in 2009, based on fabricated science. The EPA failed in this effort, but Armendariz believed that McCarthy's new regulations would be the "icing on the cake" for killing energy jobs.
• EPA Region 8 Administrator James Martin resigned after lying to a federal court, and after EPA lied that he was not using his private email account to conduct official business in violation of the Federal Records Act and the Freedom of Information Act.
• EPA also tried to shut down a hydraulic fracturing project in Dimock, PA based on a faulty study, but failed to produce any real evidence of water contamination.
• EPA has claimed "preemptive veto authority" on the Pebble Mine Project in Alaska which goes against the language and intent of the Clean Water Act (CWA). Ranking Member Vitter and others are working to get the EPA to withdraw their draft watershed assessment and allow the normal CWA processes to determine whether the project should go forward based on the application.
• National Mining Association challenged EPA and the U.S. Army Corps of Engineers in October 2011 regarding dredge and fill permits under the Clean Water Act. They were able to overturn the burdensome permitting regulations.
• The EPA tried to veto a Clean Water Act permit to dredge and fill for a mountain top coal mine (Mingo Logan Coal Company Inc.) but lost in federal district court in 2012.
• EPA usurped cooperative federalism with the Cross State Air Pollution Rule (CSAPR) to force Federal Implementation Plans on 28 States to reduce SOx and NOx emissions, the compliance of which would have led to the closures of facilities and mining operations and an estimated increase of $514 million in consumer power prices (Charles River Associates study). Further, just prior to finalizing the rule, EPA added in additional States. The D.C. Circuit shot down the rule in part due to EPA's overreach in the area of State authority.
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