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EPA nominee's holdup part of larger struggle over regulation

As Republican senators delay confirmation votes on several of President Barack Obama’s nominees, one of those stuck in the waiting queue is Gina McCarthy, his choice to head the Environmental Protection Agency.

There’s more here than just the normal Washington tactical maneuvering – it reflects Senate Republicans’ strategy to use McCarthy’s nomination as leverage in forcing changes in the way the EPA operates.

And the power struggle affects Americans far beyond Washington, D.C. – whether the water they drink is clean or dirty, whether the company that employs them must comply with costly environmental regulations, or not.

Joshua Roberts / Reuters

Gina McCarthy testifies before a Senate Environment and Public Works Committee hearing on her nomination to be administrator of the Environmental Protection Agency on Capitol Hill in Washington, in this April 11, 2013 file photo.

EPA holds sway on matters ranging from “manure management systems” to pesticides to carbon dioxide emissions and its rules often get a second look by the judges of the D.C. Circuit.

Thus McCarthy’s nomination connects directly to the coming battle over the three nominees Obama announced to the U.S. Court of Appeals for the District of Columbia Circuit last week            .

That court decides the fate of many federal regulations, including those issued by the EPA. Now divided between four judges appointed by Republican presidents and four appointed by Democratic presidents, the membership of the D.C. Circuit court to some degree determines the EPA’s impact on businesses and individuals.

Even as Republicans are complaining that EPA’s regulations are too pervasive and heavy-handed, some congressional Democrats are complaining that the executive branch is delaying environmental regulations. A group of Senate and House Democrats sent a letter Thursday to Sylvia Matthews Burwell, the new director of the Office of Management and Budget (OMB), complaining about delays in OMB’s approval of EPA actions such as its guidance identifying waters protected by the Clean Water Act, which has been under OMB review for 470 days.

When the EPA started under President Richard Nixon in 1970 it had 4,000 employees and an annual budget of $1 billion; today it has nearly 18,000 employees and a budget of $8.5 billion, but the annual cost of compliance with its regulations is greater than $8.5 billion. How much greater is a topic contested between environmentalists and business groups.

“I doubt anyone associated with the creation of EPA expected it to have the far-reaching powers it has now, and certainly not Nixon,” said University of Ohio historian Paul Milazzo, an environmental policy expert who has written a book on the development of the Clean Water Act. “Regulating greenhouse gases? Not in their wildest dreams,” he said. 

He said EPA’s reach has expanded since its creation partly due to subsequent legislation passed by Congress and due to rulings issued by federal courts.  The court rulings, in particular, he said, “are crucial to understanding how the mandate for the EPA expanded in the multitude of endeavors it came to oversee: air and water quality, solid wastes, toxics and nuclear, etc.”

On the day the Senate Environment and Public Works Committee voted to approve McCarthy’s nomination, Sen. David Vitter of Louisiana, the ranking Republican on the panel, accused the EPA of having “a pretty dismal transparency record” – including what he called “unresponsiveness” to requests from members of Congress “for the underlying research data behind crucial EPA regulations.”

Vitter also accused the EPA of using “completely inadequate, in some cases, laughable economic analyses that don’t begin to account for full costs or benefits” of EPA rules.

But citing some progress in getting information from EPA, Vitter set out a schedule for additional progress in disclosure from EPA; if his requests are met, he said he’d allow McCarthy’s nomination to be voted on, without any 60-vote threshold.

Among his requests are for EPA to convene an outside panel of economic experts “with significant private sector experience” in economic modeling to assess EPA regulations.

In a concern also raised by the U.S. Chamber of Commerce, Vitter accused the EPA of settling lawsuits mounted by environmental groups such as the Sierra Club and the Natural Resources Defense Council (NRDC) “behind closed doors which advance an environmental left agenda.”

John Walke, an NRDC attorney who once worked at EPA, disputed the Chamber’s allegations about “sue and settle,” calling them “absolutely unsubstantiated.”

He said even in cases where the EPA reaches a deal to settle a lawsuit filed by Sierra Club, the resulting proposed regulations must be open to public comments by outside groups, firms and industries.

Walke said that in return for not blocking McCarthy’s nomination, Vitter and the Republican are making “demands that the agency change the way it enforces the law and carries out environmental programs. They are demands the EPA cannot and will not give ground on – which is why we have this continuing stalemate backed in effect by the threat of a filibuster.”

He added, “It impedes the operation of EPA if a politically appointed administrator (McCarthy) is not running the agency….The agency has never gone this long without having a confirmed EPA administrator and that means there are necessarily decisions that are awaiting her confirmation.”

He added, “It impedes the operation of EPA if a politically appointed administrator (McCarthy) is not running the agency….The agency has never gone this long without having a confirmed EPA administrator and that means there are necessarily decisions that are awaiting her confirmation.”

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