EXAMINING EPA’S REGIONAL HAZE PROGRAM: 

REGULATIONS WITHOUT VISIBLE BENEFITS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT 

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

March 23, 2016 

Serial No. 114–71 

Printed for the use of the Committee on Science, Space, and Technology 

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EXAMINING EPA’S REGIONAL HAZE PROGRAM: REGULATIONS WITHOUT VISIBLE BENEFITS 
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EXAMINING EPA’S REGIONAL HAZE PROGRAM: 

REGULATIONS WITHOUT VISIBLE BENEFITS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT 

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

March 23, 2016 

Serial No. 114–71 

Printed for the use of the Committee on Science, Space, and Technology 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

HON. LAMAR S. SMITH, Texas, Chair 

FRANK D. LUCAS, Oklahoma 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DANA ROHRABACHER, California 

RANDY NEUGEBAUER, Texas 

MICHAEL T. MCCAUL, Texas 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

BILL POSEY, Florida 

THOMAS MASSIE, Kentucky 

JIM BRIDENSTINE, Oklahoma 

RANDY K. WEBER, Texas 

JOHN R. MOOLENAAR, Michigan 

STEVE KNIGHT, California 

BRIAN BABIN, Texas 

BRUCE WESTERMAN, Arkansas 

BARBARA COMSTOCK, Virginia 

GARY PALMER, Alabama 

BARRY LOUDERMILK, Georgia 

RALPH LEE ABRAHAM, Louisiana 

DARIN LAHOOD, Illinois 

EDDIE BERNICE JOHNSON, Texas 

ZOE LOFGREN, California 

DANIEL LIPINSKI, Illinois 

DONNA F. EDWARDS, Maryland 

SUZANNE BONAMICI, Oregon 

ERIC SWALWELL, California 

ALAN GRAYSON, Florida 

AMI BERA, California 

ELIZABETH H. ESTY, Connecticut 

MARC A. VEASEY, Texas 

KATHERINE M. CLARK, Massachusetts 

DON S. BEYER, JR., Virginia 

ED PERLMUTTER, Colorado 

PAUL TONKO, New York 

MARK TAKANO, California 

BILL FOSTER, Illinois 

SUBCOMMITTEE ON ENVIRONMENT

HON. JIM BRIDENSTINE, Oklahoma, Chair 

F. JAMES SENSENBRENNER, JR. 

RANDY NEUGEBAUER, Texas 

RANDY WEBER, Texas 

JOHN MOOLENAAR, Michigan 

BRIAN BABIN, Texas 

BRUCE WESTERMAN, Arkansas 

GARY PALMER, Alabama 

RALPH LEE ABRAHAM, Louisiana 

SUZANNE BONAMICI, Oregon 

DONNA F. EDWARDS, Maryland 

ALAN GRAYSON, Florida 

AMI BERA, California 

MARK TAKANO, California 

BILL FOSTER, Illinois 

EDDIE BERNICE JOHNSON, Texas 
(III) 

C O N T E N T S 

March 23, 2016 

Page 

Witness List ............................................................................................................. 2 

Hearing Charter ...................................................................................................... 3 

Opening Statements 

Statement by Representative Jim Bridenstine, Chairman, Subcommittee on 

Environment, Committee on Science, Space, and Technology, U.S. House 

of Representatives ................................................................................................ 5 

Written Statement ............................................................................................ 7 

Statement by Representative Suzanne Bonamici, Ranking Minority Member, 

Subcommittee on Enviorment, Committee on Science, Space, and Technology, U.S. House of Representatives ............................................................... 9 

Written Statement ............................................................................................ 11 

Statement by Representative Lamar S. Smith, Chairman, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 13 

Written Statement ............................................................................................ 14 

Statement by Representative Eddie Bernice Johnson, Ranking Minority Member, Committee on Science, Space, and Technology, U.S. House of Representatives ........................................................................................................... 16 

Written Statement ............................................................................................ 17 

Witnesses: 

Mr. William Yeatman, Senior Fellow, Competitive Enterprise Institute 

Oral Statement ................................................................................................. 18 

Written Statement ............................................................................................ 20 

Mr. Thomas P. Schroedter, Executive Director, Oklahoma Industrial Energy 

Consumers 

Oral Statement ................................................................................................. 29 

Written Statement ............................................................................................ 31 

Mr. Bruce Polkowsky, Environmental Policy Consultant 

Oral Statement ................................................................................................. 44 

Written Statement ............................................................................................ 46 

Mr. Aaron M. Flynn, Partner, Hunton & Williams LLP 

Oral Statement ................................................................................................. 59 

Written Statement ............................................................................................ 61 

Discussion ................................................................................................................. 82 

Appendix I: Answers to Post-Hearing Questions 

Mr. William Yeatman, Senior Fellow, Competitive Enterprise Institute ........... 96 

Mr. Thomas P. Schroedter, Executive Director, Oklahoma Industrial Energy 

Consumers ............................................................................................................ 98 

Mr. Bruce Polkowsky, Environmental Policy Consultant .................................... 101 

Mr. Aaron M. Flynn, Partner, Hunton & Williams LLP ...................................... 111 

Appendix II: Additional Material for the Record 

Documents submitted by Representative Lamar S. Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives .... 120 
Page

IV 

Documents submitted by Representative Suzanne Bonamici, Ranking Minority Member, Subcommittee on Enviorment, Committee on Science, Space, 

and Technology, U.S. House of Representatives ............................................... 560 
(1) 

EXAMINING EPA’S REGIONAL 

HAZE PROGRAM: 

A TEN–YEAR REVIEW OF COSTS 

AND BENEFITS 

WEDNESDAY, MARCH 23, 2016 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 9:33 a.m., in Room 

2318 of the Rayburn House Office Building, Hon. Jim Bridenstine 

[Chairman of the Subcommittee] presiding. 
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Chairman BRIDENSTINE. All right. The Subcommittee on the Environment will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time. 

Welcome to today’s hearing titled ‘‘Examining the EPA’s Regional 

Haze Program: Regulations Without Visible Benefits.’’ I recognize 

myself for five minutes for an opening statement. 

Today’s hearing focuses on EPA’s Regional Haze Rule. As the 

Obama Administration nears the end of its time in office, we must 

carefully review the impact, costs, and achievability of any rules 

and implementation plans this activist EPA attempts to put in 

place on the way out the door. As we will see, the benefits of this 

regulation are dubious but the costs to individual states, including 

my home state of Oklahoma, will be very, very high. 

Unlike the other regulations promulgated under the Clean Air 

Act that this Committee has examined, the Regional Haze Rule is 

unique for two important reasons. First, it is an aesthetic regulation, and not a public health regulation. These rules were designed 

primarily to ensure the public can clearly see the sights at National Parks and other natural landmarks. Second, Clean Air Act 

legislative history specifically gives individual states a unique degree of authority to be decision makers when implementing visibility-improving policies. Over the past several decades, visibility 

levels at many of our national parks and wilderness areas have significantly improved, due in large part to the efforts of individual 

states working together with stakeholders to implement plans at 

the state level. The EPA did not object to the state plans then, recognizing our system of federalism. 

But under this President, the EPA has overruled the plans created by many states to comply with this rule, instituting Federal 

Implementation Plans in 14, including Oklahoma, 14 states, and 

attempting to institute Federal Implementation Plans in two more. 

These federal plans will have huge implementation costs, hurting 

consumers, those on fixed incomes, and small businesses. It will 

force coal-fired power plants to shut down and make electricity 

generation more expensive. OG&E and AEP–PSO, utilities in my 

state, have had to shut down power plants, forcing them to propose 

rate hikes or else go out of business. 

I will remind my colleagues about the multitude of economically 

detrimental, radical regulations pushed by this administration, including the Clean Power Plan, Waters of the United States, and 

the National Ambient Air Quality Standards for ozone. And now, 

in a continuation of its war on the poor, the EPA is using ‘‘visibility 

improvement’’ to force utilities and other stakeholders to further 

move away from coal and other forms of cost-effective power generation. What’s worse is that the improvements to visibility will be 

negligible. Many of the EPA’s own visibility goals have already 

been achieved. 

Further, the scientific justification for this regulation is shaky 

and questionable, as our witnesses will testify. The EPA is instituting more stringent controls for visibility than it would for 

health-based regulations. The precedents set in this rule—requiring additional controls with no real benefit while requiring controls 

on individual generation sources—could have significant and draco-
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nian ramifications for regional haze planning across the country. 

This is yet another example of the federal government bullying my 

constituents. 

Later this spring, the Committee will invite the EPA so that it 

will answer questions as to why it has become a radical political 

arm of the Obama Administration, and why they are rushing 

through a vast number of hasty, non-scientific regulations, including the Regional Haze Implementation Plans. The EPA needs to be 

held accountable to the American people. 

We welcome the witnesses today and look forward to their testimony. 

[The prepared statement of Chairman Bridenstine follows:] 
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Chairman BRIDENSTINE. I now recognize the Ranking Member, 

the gentlewoman from Oregon, for an opening statement. 

Ms. BONAMICI. Thank you very much, Mr. Chairman. Thank you 

to our witnesses for being here this morning. 

On August 25th of this year the National Park Service will celebrate their centennial. So it’s fitting that we’re discussing EPA’s efforts to reduce regional haze and maintain the scenic outlook of our 

most treasured locations. 

President John F. Kennedy said of the creation of the National 

Park System: ‘‘It is the course of wisdom to set aside an ample portion of our natural resources as national parks and reserves, thus 

ensuring that future generations may know the majesty of the 

earth as we know it today.’’ 

In 1977, Congress had the foresight to take President Kennedy’s 

sentiment to heart and they recognized the threat that air pollution posed to our iconic parks and they called on EPA to reduce regional haze. 

Some may think that preserving the views in our parks and wilderness areas isn’t worth the cost, but clearer skies actually have 

a direct effect on the economy, especially in the local communities 

that surround our National Parks. Studies have consistently shown 

that park visitors will cut their trip short if the park they are planning to visit is hazy. Shorter trips and fewer visitors means less 

money spent on recreational activities, lodging, and food. For example, in 2014, more than half a million visitors traveled to Oregon’s 

Crater Lake, supporting more than 760 jobs. 

As a whole our National Park System had 293 million visitors who added $29.7 billion to the U.S. economy and supported 277,000 

jobs. We should be doing more, not less, to protect these iconic 

landscapes and the local economies they support. 

I’d like to put up a slide that shows the progress we’ve made 

under the regional haze program, and emphasize that there are 

visible benefits but still work to be done. 

[Slide.] 

This slide shows a side-by-side comparison of the Great Smokay 

Mountains, illustrating the air pollution that existed in 1990, the 

clearing that occurred in 2010, and the goal of natural visibility 

that still needs to be achieved. In 1990, a park visitor could see 25 

miles out, in 2010, 46 miles, and with natural visibility conditions 

they can see 112 miles of this magnificent mountain range. 

Now, I know some consider EPA’s efforts to improve air quality 

under the Clean Air Act, including the Regional Haze rule, to be 

a war on coal. I want to mention that earlier this month, Oregon 

became—my home State of Oregon—became the first state to enact 

bipartisan legislation to eliminate the use of coal-fired power by 

2035. We did this because coal-fired power plants are some of our 

biggest polluters, and if we are going to make significant progress 

in combating air pollution in the future, we need to transition to 

cleaner sources of energy now. Such a transition will provide economic opportunities, improve public health, and preserve the majesty of our National Parks for future generations. 

Mr. Chairman, I have a letter from the National Parks Conservation Association that I’d like to submit for the record. The letter describes the importance of clean air to our National Parks and the 
10 

need for the Regional Haze program. Specifically, the letter states 

‘‘A steady reduction in haze-causing pollution is precisely what is 

required under the Regional Haze Rule to safeguard our iconic 

landscapes, support local communities, and protect the health of 

all.’’ I ask unanimous consent that the letter be part of the record. 

Chairman BRIDENSTINE. Without objection. 

[The information appears in Appendix II] 

Ms. BONAMICI. Thank you, Mr. Chairman. 

I look forward to the testimony of our witnesses, and at this 

time, Mr. Chairman, I yield back the balance of my time. 

[The prepared statement of Ms. Bonamici follows:] 
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Chairman BRIDENSTINE. Thank you, Ms. Bonamici. 

I now recognize the chairman of the full Committee, Mr. Smith. 

Chairman SMITH. Thank you, Mr. Chairman, and thanks to our 

witnesses for being here today as well. 

The Science Committee has held many hearings on the regulatory overreach of the Environmental Protection Agency during 

this administration. Unfortunately, the EPA is again attempting to 

unnecessarily and unlawfully regulate the lives of the American 

people. Throughout this Congress, the Committee has often revealed how the EPA’s regulatory overreach will cost billions of dollars, cause financial hardship for American families, and diminish 

the competitiveness of American employers, all with no significant 

benefit to climate change, public health, or the economy. The EPA 

has rushed through many costly and burdensome regulations. Examples include the strict new National Ambient Air Quality Standards for ozone, Waters of the U.S., and the Clean Power Plan. 

Today we will hear how the EPA’s interpretation and execution 

of the regional haze rule unlawfully undercuts the statutory authority of the individual states. Congress clearly intended, through 

the Clean Air Act, that individual states be responsible and in 

charge of the program, not the federal government. Instead, the administration is determined to use this rule to impose more costly 

regulations on Americans. 

In my home state of Texas, the EPA’s regional haze imposition 

would affect 14 power plans and cost more than two billion dollars. 

This past Friday, the Attorney General for Texas requested a stay 

of this plan. 

EPA’s regulatory agenda is bad for the American economy and 

for the American people. We cannot allow a federal agency to assume power that Congress has not given it. The Science Committee 

will continue to rein in the EPA when it oversteps its authority. 

Contrary to the EPA’s agenda, Americans want to be free from 

overly burdensome regulations, not tied up in more. 

We look forward to EPA’s presence at a future hearing. EPA will 

also be expected to answer questions about other regulations that 

the agency has recently issued or finalized. 

Thank you again, Mr. Chairman, and yield back. 

[The prepared statement of Chairman Smith follows:] 
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Chairman BRIDENSTINE. I’d like to thank the Chairman for his 

opening statement. 

I now recognize the Ranking Member of the full Committee for 

an opening statement. 

Ms. JOHNSON. Thank you very much, Mr. Chairman. Welcome to 

our witnesses. 

We are here this morning to discuss the Environmental Protection Agency’s Regional Haze program. Nearly 40 years ago, Congress called on EPA to implement a program that would address 

air pollution in the most iconic and unique places in our country: 

our National Parks. Members of Congress wanted to ensure that 

future generations would be able to enjoy these scenic vistas and 

that their view would not be marred by a discolored haze. While 

the Nation’s air quality has improved over the years, in part because of programs like the one we are discussing today, there is 

still more that needs to be done. 

When someone visits a National Park today they miss out on 

nearly 50 miles of scenery because of regional haze. This pollution 

doesn’t just spoil the view; it also has a negative impact on public 

health. 

Unfortunately, officials from my home State of Texas are not 

leading the charge to reduce air pollution, but instead are fighting 

the EPA once again. Last month, Texas Attorney General Ken 

Paxton filed a lawsuit against EPA after the Agency rejected the 

state’s plan for reducing regional haze and replaced it with a federal plan. As I understand it, the Texas plan did not include a single additional pollution control on any of the state’s facilities. I’m 

not sure how the state expected EPA to agree that such a do-nothing plan could qualify as making reasonable progress toward the 

program’s goal of eliminating haze pollution and restoring natural 

visibility conditions. 

Some will likely argue that the pollution controls EPA is requiring will not have significant impact on visibility at the Big Bend 

or the Guadalupe Mountains. They will also argue that the controls 

are too expensive and that the reliability of states’ electric grid will 

be threatened. This certainly is not the case. EPA’s plan represents 

a cost-effective solution to addressing regional haze. The EPA’s 

plan will not only ensure that visitors to the Big Bend and the 

Guadalupe Mountains can enjoy the scenery for years to come, but 

it will help lessen the public health burden poor air quality has imposed on Texas for far too long. 

So Mr. Chairman, I thank you for holding this hearing, and I 

yield back the balance of my time. 

[The prepared statement of Ms. Johnson follows:] 
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Chairman BRIDENSTINE. I thank the Ranking Member. 

I have a number of pages here of bios to read. We have votes at 

10:30, so without objection, I’ll bypass on the bios, and suffice it to 

say that we have four very qualified panelists today testifying. All 

of them have numerous degrees, and they all care deeply about 

their communities and their country. 

With that said, I’d like to now—— 

Ms. BONAMICI. No objection. 

Chairman BRIDENSTINE. No objection. With that said, I’d like to 

now recognize Mr. Yeatman for his opening statement of five minutes. 

TESTIMONY OF MR. WILLIAM YEATMAN 

SENIOR FELLOW, 

COMPETITIVE ENTERPRISE INSTITUTE 

Mr. YEATMAN. Thank you. Chairman Bridenstine, Ranking Member Bonamici, Committee Ranking Member Johnson, and distinguished members of the Subcommittee, thank you very much for 

inviting me to testify before you on EPA’s implementation of the 

Regional Haze program. 

My name is William Yeatman. Very briefly, I work at the Competitive Enterprise Institute. We’re a libertarian think tank here in 

Washington, DC. With my testimony I just want to briefly touch 

upon two themes as they relate to the Regional Haze Rule, and 

that’s federalism and cost as against benefits. 

So first, under the Clean Air Act’s framework of cooperative federalism, states and EPA are supposed to work together to improve 

the Nation’s air quality. Now, in this arrangement, the most aggressive action that EPA can perform relative to the states is a regulatory takeover. It’s known as a Federal Implementation Plan, 

and these—or FIP. And these FIPs are a big deal. They literally 

are EPA seizing a small piece of state sovereignty. Because these 

FIPs, these regulatory takeovers, are a big deal, they’ve been employed sparingly, very sparingly, by previous Administrations. For 

example, the previous three Administrations, Presidential Administrations—George H.W. Bush, Bill Clinton, and George W. Bush— 

among them EPA imposed five total regulatory takeovers across all 

Clean Air Act programs. Now, by contrast, since 2009, EPA has imposed 15 FIPs, and that’s just in the Regional Haze program, so 

you take the previous three Administrations, their total number of 

takeovers across the entire Clean Air Act, you add them up, you 

multiply them times three, and that’s how many we’ve had from 

the Environmental Protection Agency since 2009. 

So this raises significant federalism implications. At the same 

time, it raises cost concerns by my estimate. These regulatory takeovers will amount to cost of at least $5 billion. That’s in capital cost 

up front. This burden will fall primarily upon about seven states 

including Oklahoma, which again the residents of Tulsa and Oklahoma City are facing rate increases of 14 and 20 percent, respectively, and that’s just the beginning and it’s due to the Regional 

Haze Rule. Again, these costs fall disproportionately on the poorest 

amongst us. They’re aggressive. The poorest among us spend more 

on energy as a proportion of their income. So we’ve got these federalism concerns, we’ve got these aggressive costs. You might think 
19 

to yourself, well, geez, EPA must have a really good reason to do 

this, to perform these acts, and in fact, the case is—alas, that’s not 

the case. I mean, the benefits are literally invisible, and we can 

demonstrate this with computer modeling known as—or software, 

I should say, known as WinHaze, we can model the visibility improvements attendant to EPA’s controls relative to the states’ controls, and if we could please get the first, so this is a split-screen 

image. On the left, those are the state controls. They’re 50 percent 

of the screen. That’s what Oklahoma did, you know, thousands of 

hours of work they put into a plan, more than a thousand pages. 

Those are the visibility benefits. So on the right, those are the visibility benefits attendant to EPA’s controls, and again, those are invisible. No reasonable person is going to tell you there’s a difference there. Again, the cost is $1.8 billion. So big-time cost, invisible benefits. I should note that this is the greatest visibility improvement wrought by any of EPA’s FIPs, so this is—there’s no 

state whose, you know, benefit, if you will, is greater than this. 

If we could get the next slide? 

[Slide.] 

This is Texas, so similarly, this is actually a visibility benefit 

one-sixth of the previous slide, of Texas, the implementation plan 

on the left, EPA’s on the right. EPA deemed Texas’s plan insufficiently protective of visibility, and based on that imposed this plan 

for $1.7 billion. I mean, there’s no difference. It raises serious questions about, I guess, again, cost versus benefit. So those were the 

themes I wanted to brush upon just in general. 

This plan raises serious federalism concerns. It imposes regressive significant costs, and the benefits are literally invisible. 

Thank you very much. I look forward to the Q&A. 

[The prepared statement of Mr. Yeatman follows:] 
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Chairman BRIDENSTINE. Thank you for your testimony. 

I now recognize Mr. Thomas Schroedter, Executive Director and 

General Counsel of the Oklahoma Industrial Energy Consumers. 

TESTIMONY OF MR. THOMAS P. SCHROEDTER 

EXECUTIVE DIRECTOR, 

OKLAHOMA INDUSTRIAL ENERGY CONSUMERS 

Mr. SCHROEDTER. Thank you, Subcommittee Chairman 

Bridenstine, and thank you, members, for the opportunity to be 

here. I am the Executive Director of a trade association called 

OIEC. It is a trade association of energy-intensive manufacturers, 

refiners, transporters, and other large energy consumers. They 

have facilities located throughout the State of Oklahoma and the 

members companies employ tens of thousands of Oklahomans. 

Many of those members are engaged in energy-price-sensitive industries such as pulp and paper, cement, refining, industrial gases, 

plastic, food processing, fertilizer. As I say, these members provide 

tens of thousands of jobs to the State of Oklahoma. 

My testimony is going to address the impact of the Regional 

Haze Rule on the state. Unfortunately, Oklahoma spent a lot of 

time coming up with a State Implementation Plan to address Regional Haze but unfortunately that plan was rejected. It was rejected by EPA in December of 2011, and EPA insisted that the 

State of Oklahoma plan provide for scrubbers on six coal-fired generating units. Now, those scrubbers were very expensive, and the 

State of Oklahoma determined that the scrubbers were not cost-effective, that they should not be implemented and instead that the 

utilities in Oklahoma should move to low-sulfur coal and they could 

comply with Regional Haze by doing that. As I said, EPA disagreed 

and they imposed—EPA imposed a Federal Implementation Plan. 

What happened after that, OG&E went to court, went to the 

10th Circuit. PSO, the other investor-owned utility, negotiated a 

settlement with the EPA. But I want you to know that the bottom 

line of what’s happened or what will happen in Oklahoma is that 

we will incur substantial rate impacts for all utility ratepayers 

whether they’re residential, whether they’re small businesses, 

whether they’re large energy consumers such as my members. 

The first year rate increases—and you’re going to hear lots of 

numbers today—but the first year rate increases are estimated to 

be 11 to 12 percent, but that’s only year one. Based on an analysis 

that we have done, and I don’t think that many will disagree with, 

the OG&E will expend more than $4.2 billion in excess costs in 

order to comply with Regional Haze. I have a slide on that. 

[Slide.] 

The nominal cost to comply over the lifecycle is basically $4.5 bil- lion. The other utility, PSO, will expend approximately $5.1 billion 

more than the Oklahoma State Plan, and the reason PSO’s plan is 

more costly is they are closing their coal plants. They’re converting 

them to natural gas. 

These are very serious ramifications, members, that I’m pleased 

that you’ve given me the opportunity to share with you. One of the 

ramifications is that basically we will be left with reliance on natural gas-fired generation, and that means loss of diversity. It’s like 

investing in the stock market and only investing in one stock. We 
30 

will be heavily invested in one fuel supply, and that’s not good if 

that price increases. 

As you know, as energy rates go up, there’s a political for increased unemployment, and we’ve looked at that, and unfortunately, the regressive nature of the Regional Haze Federal Implementation Plan means that as you get to lower income consumers, 

the impact is greater because more and more of their income is 

spent on energy. So this is bad for all consumers, not just large 

consumers like my members but large consumers. It’s bad for Oklahoma. It will impact the competitiveness of Oklahoma. I can tell 

you that my members, if it becomes too costly to manufacture, will 

either manufacture in other states or not manufacture their products. 

Thank you for the opportunity to be here today and to testify. 

[The prepared statement of Mr. Schroedter follows:] 
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Chairman BRIDENSTINE. Thank you for your testimony. 

And so everybody knows, the panelists have submitted testimony 

that is much longer that is all made part of the record, so that will 

be available for everybody. 

Our next witness is Mr. Bruce Polkowsky, an Environmental Policy Consultant. You’re recognized for five minutes. 

TESTIMONY OF MR. BRUCE POLKOWSKY 

ENVIRONMENTAL POLICY CONSULTANT 

Mr. POLKOWSKY. Thank you, Chairman Bridenstine, Ranking 

Member Bonamici, and Committee Ranking Member Johnson, for 

the opportunity to speak to you about my experiences with EPA’s 

visibility protection program. 

Our National Parks and wilderness areas are treasures of immense cultural and spiritual importance. Visitors expect and value 

clean, clear air. Those visitors generate billions of dollars and thousands of jobs at local gateway communities, and studies show that 

many Americans who may not visit these areas nevertheless value 

protecting visibility for future generations. 

Section 169(a) of the Clean Air Act establishing the national goal 

of preventing and remedying manmade impairment of visibility in 

our large National Parks and wilderness areas and requiring EPA 

to issue rules for states to provide reasonable progress towards 

that goal reflects the expectations and values of most Americans. 

EPA’s visibility program has developed slowly, very slowly from 

1980 on to now, but it’s done so in conjunction with advances in 

scientific techniques to understand the components and sources of 

the plumes and haze, and the regulatory program has developed 

slowly with input from states and tribes. Particularly when I was 

working on the Regional Haze rules at EPA, I took into account 

recommendations of the Visibility Transport Commission for the 

Grand Canyon that was established by Section 169(b), and incorporated aspects of targeting the clearest days for protection and 

targeting the most impaired days for improvement that came directly from the Commission as well as the glide path concept of 

moving towards natural conditions based on the Grand Canyon 

Commission’s projected 40 to 70 percent reduction of sulfur dioxide 

across an eight-state region. 

So the program has also spurred technical innovation in the 

monitoring program, a network that has been formed for federal 

agencies, states and academic institutions to develop equipment 

and techniques for routine capturing and analyzing the chemical 

makeup of atmospheric particles, those techniques were proven in 

parks and wilderness areas and then became the foundation for the 

monitoring of those same particles in urban areas to implement the 

Fine Particle Health Standard. 

And EPA has fostered innovative implementation as well. In 

some actions to control pollutants from sources subject to Section 

169’s Best Available Retrofit, or BART technology, which must be 

implemented within five years, EPA has shown great flexibility in 

seeing value in attaining greater improvements over a longer period of time at a lower cost. EPA has also considered multi-pollutant benefits when weighing alternatives to controlling a single pollutant under BART. 
45 

Over the nearly four decades since Congress established the national goal for our most treasured lands, there has been significant 

progress in improving visibility in many but not all locations. These 

improvements reflect emission reductions that lowered atmospheric 

concentrations of fine particles resulting from different regulatory 

programs. Some focused on protecting human health, others on reducing harmful effects on public welfare and ecosystems such as 

acid rain, and some were taken specifically to address visibility. As 

the National Academy of Sciences noted in their 1993 report on 

protecting visibility, pollutant emission reductions that lower ambient concentrations of fine particles will improve the health, welfare 

and visibility regardless of which regulatory program required the 

reduction. 

There is still work to do to maintain progress towards the national goal. States and EPA each have very important roles in continuing to make that progress, but given the complex atmospheric 

chemistry and meteorology that form and transport fine particles 

over long distances coupled with the sensitivity of clean atmosphere to small increases in fine particle concentrations, EPA has 

a unique role in assuring that implementation plans of all the 

states and tribes fit together to continue to make progress towards 

the national goal. 

And one comment I have about the number of FIPs. In 1984, I 

had to issue 35 FIPs for visibility protection for the 1980 rule, so 

there is precedent in looking at when a new series of programs is 

required for the EPA to look state by state. 

So again, thank you for this opportunity, and I’m glad to answer 

any questions you may have. 

[The prepared statement of Mr. Polkowsky follows:] 
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Chairman BRIDENSTINE. Thank you, Mr. Polkowsky. 

Our next witness is Mr. Aaron Flynn, Partner at Hunton and 

Williams. He previously served as legal counsel for the Science Advisor to the President at the White House Office of Science and 

Technology Policy. Mr. Flynn, you’re recognized for five minutes. 

TESTIMONY OF MR. AARON M. FLYNN 

PARTNER, HUNTON & WILLIAMS LLP 

Mr. FLYNN. Thank you, and good morning. It is an honor to appear before this Subcommittee to offer testimony on EPA’s Regional 

Haze program. As the Chairman just said, my name is Aaron 

Flynn. I’m a Partner in the law firm of Hunton and Williams. I’ve 

practiced environmental law as an attorney for the Congressional 

Research Service for the White House Office of Science and Technology Policy, and since joining Hunton and Williams in 2007, my 

practice has focused on the Regional Haze program. 

When Congress enacted the Regional Haze provisions of the 

Clean Air Act, it made very clear that the states, not EPA, should 

make the key decisions about how to implement the program. Congress directed EPA to develop rules to guide state decision making 

while states were tasked with weighing the relevant information, 

particularly information related to compliance costs and the relative significance of visibility improvements that different controls 

can achieve, and then deciding which controls were justified and 

which demanded too much. The early decisions of the DC. Circuit 

acknowledged and strictly adhered to Congress’s design for the program. In 2002, the court struck down EPA’s first attempt at a Regional Haze rule in a case called American Corn Growers Association versus EPA because that rule unlawfully constrained state discretion to make Best Available Retrofit Technology, or BART determinations. EPA’s rules would have effectively forced states to place 

greater weight on visibility impacts over costs or any of the other 

statutory BART factors, and in tossing out those rules, the DC. Circuit stated clearly that EPA could not infringe in that matter on 

state decision making. 

When EPA promulgated replacement Regional Haze Rules in response to the Corn Growers decision, including rules affording 

states broad discretion to adopt alternatives to strict BART requirements, the DC. Circuit sustained those regulations against 

challenges that sought more restrictive policies. 

EPA began to stray from a commitment to recognizing state discretion, however, when implementation of the Regional Haze program began in earnest in several early rulemakings to establish 

BART requirements for facilities over which EPA had direct regulatory authority and where no state had an opportunity to weigh 

in first the Agency established precedents for conducting BART assessment, precedents that were not necessarily clear requirements 

of the Clean Air Act or EPA’s BART rules. Not only did those 

rulemakings establish questionable analytical practices, they also 

imposed requirements that sources install the most expensive emission controls operated to achieve the most stringent emission limits 

possible. That’s a questionable policy in and of itself for older facilities that are undergoing emission control retrofits, as all BART-eligible facilities are. 
60 

In subsequent rulemakings, EPA went even further. While state 

plans that adopted EPA’s policy preferences were often approved, 

states that chose to use their discretion differently frequently faced 

plan disapproval and replacement of their policy decisions with federal plans imposing strict emissions limits and expensive technology requirements. 

Many states challenged the disapproval of their plans in federal 

circuit courts, and some of those challenges have led to successful 

settlements and some limited victories. The vast majority of decisions, while acknowledging the state’s role in the Regional Haze 

program, have nevertheless accepted arguments that could be interpreted to grant EPA broad discretion to disapprove state plans. 

Decisions from the 8th, 9th and 10th Circuits affecting facilities in 

Oklahoma, North Dakota, Nebraska and Arizona have all deferred 

largely to EPA’s judgment and granted no similar deference to 

state decisions. 

Litigation over EPA’s actions during the Regional Haze program’s first planning period may be coming to a close but one case 

that is still in the earliest stages could set the tone for the next 

state of implementation. Petitions for review of EPA’s Regional 

Haze Rule for Texas and Oklahoma have been filed in the 5th, 

10th, and DC. Circuits, and whichever case—whichever court hears 

the case will decide a number of key questions of first impression 

under the program including the scope of state discretion under the 

Clean Air Act’s Reasonable Progress provisions, which will likely be 

the key driver of any future regulatory requirements under the 

program. 

The court will also be acting on one of EPA’s most controversial Regional Haze Rules to date, one that would cost approximately $2 

billion more than Texas’s plan while achieving no appreciable incremental visibility benefit. And DDPA’s own monitors confirm 

that the Agency’s Reasonable Progress goals for Texas are being 

achieved today based on emissions reductions that have already occurred, rendering EPA’s plan unnecessary. 

I look forward to discussing these issues further, and thank you 

again for the opportunity to testify today. 

[The prepared statement of Mr. Flynn follows:] 
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Chairman BRIDENSTINE. I thank the witnesses for their testimony. Members are reminded that Committee rules limit questioning to five minutes. The Chair recognizes himself for five minutes. 

Mr. Flynn, is the Regional Haze program intended to protect 

public health? 

Mr. FLYNN. Thank you for the question, Chairman. It categorically is not intended to protect public health. 

Chairman BRIDENSTINE. Can you explain how this makes this 

rule different from the National Ambient Air Quality Standards? 

Mr. FLYNN. Absolutely. The Regional Haze Rule is aimed entirely 

at protecting visibility conditions. Section 169(a) of the Clean Air 

Act establishes a national goal that Congress set of achieving visibility conditions in what are called Class I Federal Areas, essentially National Parks and wilderness areas, large ones, that is 

unimpaired by manmade air pollution. That national goal is phased 

in over a long period of time, a decades-long expanse of time. EPA 

has set a target goal for achieving the national goal of 2064. Even 

that date is not written into the statute, and it’s simply a part of 

EPA’s regulations, and EPA’s regulations provide for the fact that 

states are free to determine whether the glide path to get to 

unimpaired visibility by 2064 is in fact reasonable. If it’s not reasonable, states are free to push that deadline back even further. 

Chairman BRIDENSTINE. Let me ask you on that. Did Congress 

intend the Regional Haze program to be used by the EPA to mandate specific controls at specific power plants? Was that the intent? 

Mr. FLYNN. Congress certainly provided for the BART provisions, 

which envision states looking at and deciding whether specific controls are justified for a specific facility. 

Chairman BRIDENSTINE. But that would be up to the states, 

right? 

Mr. FLYNN. Exactly right, sir, and it is also—certainly there was 

no—there’s nothing in the Clean Air Act that suggests that specific 

controls for specific classes of facilities are mandated by the Regional Haze program. It is very much a process of weighing various 

factors, a process that is imbued with a vast amount of discretion 

in order to determine whether controls are justified at all and what 

controls those might be, and as you said, those decisions are intended to be made by the states. 

Chairman BRIDENSTINE. Okay. Thank you. 

Mr. Yeatman, would you agree that EPA’s visibility goals at the 

heart of the Regional Haze regulations have already been achieved. 

Based on the pictures you showed up and compared to some of the 

pictures we saw before that, it would appear that most of these 

goals have already been achieved. Would you agree with that? 

Mr. YEATMAN. Thank you very much for the question. Indeed, I 

would agree that as Congress envisioned and as EPA envisioned, 

because this is an aesthetic regulation and not a public health regulation, that states could very well achieve the goals of this program through implementation of the Clean Air Act’s public health 

rules. I mean, remember, the Clean Air Act is a ratcheting mechanism. Every eight years the New Source Performance Standards for 

each source category must be reviewed and updated. Every eight 

years Hazardous Air Pollutant Standards for each source category 
83 

must be updated. So the very nature of the Clean Air Act is to get 

more stringent with time. It is as such reasonable to depend on 

these ever-more stringent public health controls to achieve these 

not public health, these aesthetic goals. 

Very briefly, if I might just touch upon the matter of the Federal 

Implementation Plans that was brought up by my fellow witness, 

indeed, I would note I was under the impression it was 26 as opposed to 35, but that is neither here nor there. We can definitely 

get the official number in the record. I note only that all FIPs are 

not created equal. As I understand it, and as was explained in the 

testimony of my fellow witness, Mr. Polkowsky, the science wasn’t 

there to implement Regional Haze Rules for regional haze as opposed to individual plumes until the late 1990s. The upshot is, 

there weren’t costs attendant to those FIPs. I mean, correct me if 

I’m wrong, Mr. Polkowsky, but I’m under the impression there 

were controls at the Four Corners power plant that first round but 

I don’t know of any others. The upshot being, there certainly 

weren’t $5 billion worth of costs imposed by the federal government 

on unwilling states. So I think that’s a difference that should be 

noted. 

Chairman BRIDENSTINE. In my few remaining seconds, at this 

time, Mr. Yeatman, are additional and more stringent Regional 

Haze regulations necessary? 

Mr. YEATMAN. Oh, it’s for each state to determine. That’s for 

states to determine how much they value an aesthetic improvement. 

Chairman BRIDENSTINE. Okay. My time is expired. 

I now recognize the Ranking Member, Ms. Bonamici, for five 

minutes. 

Ms. BONAMICI. Thank you very much, Mr. Chairman, and thank 

you to our witnesses for all your testimony and expertise. 

I basically want to focus on economic issues, but Mr. Polkowsky, 

you state in your written testimony in your conclusion that it’s important to recognize that any pollution control required for protection of visibility will have collateral benefits for public health by reducing human exposure to fine particulate matter, and that is also 

spelled out with more detail in the letter that we submitted for the 

record from the National Parks Conservation Association because 

we are talking about the same pollutants that contribute to visibility impairment, harming public health when we’re talking about 

respiratory disease, decreased lung function, asthma attacks. 

So could you just briefly comment on that aspect as well? Even 

though yes, this rule was—the goal is for visibility but there are— 

you know, we often think about unintended consequences of legislation. These happen to be positive consequences that aren’t necessarily what was the goal of the legislation. 

Mr. POLKOWSKY. Yes, you’re absolutely correct in that when you 

control for visibility to aim at a certain target like a BART determination as we did in Arizona in the mid-1980s—sorry, in the early 

1990s, there were certainly benefits to exposure on tribal lands and 

nearby communities. So those exposures reduce—those pollutants 

being reduced, sulfur dioxide in that case, is going to contribute to 

lower sulfate levels, which will improve visibility. It will also mean 

less sulfate to be inhaled and less health impacts for the commu-
84 

nities that are exposed, and that’s true for implementing maximal 

improved visibility if it reduces levels of fine particles. It works 

both ways, and—— 

Ms. BONAMICI. Thank you. And I’m going to ask you, in your testimony you talk about the long-term surveys that the National 

Park Service has conducted of park visitors, and you mentioned the 

value that visitors ascribe to clean air and scenic views, and you 

state that the protection of visibility in our most treasured parks 

and wilderness areas drives economic progress in those regions and 

nationally. 

So can you talk about—you did in your testimony, but expand on 

the economic effect of haze and how does that impact a visitor’s experience and the economy of the local region? 

Mr. POLKOWSKY. Well, as you already noted, one of the key factors is that as visibility improves, people actually spend more time 

at the parks, and that’s very important because when they spend 

more time, they spend more money, and as our Clean Air Task 

Force report in 2000 looked at, you know, can we actually link improving—reducing emissions from power plants across mainly the 

eastern sector. This is before the full wave of controls that is sort 

of well underway in the east. Would that actually result in economic benefit across all these communities and more jobs, and the 

answer was yes. 

Ms. BONAMICI. And I do want to get in another question in my 

remaining time. 

Mr. Polkowsky, the testimony of some witnesses seems to suggest that the EPA should sort of rubber-stamp the state’s implementation plan, and I don’t think anyone here is suggesting that, 

so could you talk about the oversight role of the EPA in implementing the Regional Haze program and whether it’s appropriate 

for the EPA to evaluate the state’s implementation plan to ensure 

that the requirements of the program are being met? 

Mr. POLKOWSKY. It’s, you know, a sort of required role of the 

Clean Air Act for EPA to have oversight on all State Implementation Plans for whatever program is being implemented, and in this 

case, as I mentioned in my oral testimony, we’re dealing with the 

formation and transport over long, long ranges, hundreds of miles, 

and so coordinating the state plan, for instance, perhaps in Texas 

with what the goals that were set in Arkansas for Caney Creek 

Wilderness is important. That’s an important function to make 

sure that Arkansas is going to get what it’s counting on in terms 

of emissions reductions from another state. 

Ms. BONAMICI. And are there particular states—I think there 

was an example of Colorado where the approval process went 

through and—— 

Mr. POLKOWSKY. Well, Colorado took a multi-pollutant, multi-target approach for looking at not only visibility at Rocky Mountain 

National Park and other 12 Class I areas but also looking at the 

nitrogen deposition and ozone on the front range and combined all 

that together as part of the Regional Haze Plan and EPA approved 

it. 

Ms. BONAMICI. Terrific. My time’s about to expire. I yield back. 

Thank you, Mr. Chairman. 

Chairman BRIDENSTINE. The gentlelady yields back. 
85 

I now recognize the gentleman from Texas, Mr. Neugebauer, for 

five minutes. 

Mr. NEUGEBAUER. Thank you, Mr. Chairman. 

Mr. Yeatman, earlier this month on March third, a lawsuit was 

filed by Texas utilities under the Regional Haze issue, and the 

state of Texas had to respond to an egregious action by EPA. In 

this case, EPA waited more than six years to disapprove the Texas 

State Implementation Plan and replace it with a Federal Implementation Plan that imposes interim compliance requirements that 

some people say cannot be met. 

You know, it’s kind of interesting when EPA rejected the Texas 

plan based on that—on direct reasonable progress into source-specific analysis, and I think the tenth Circuit actually ruled that the 

source-specific analysis in determining reasonable progress was not 

required either by the law or the regulation. Isn’t this just kind of 

a bullying of the coal industry and trampling on the states’ plans 

and rights? 

Mr. YEATMAN. It is certainly, I would argue, an instance of inappropriate treatment of the states, an inappropriate—an absence of 

respect for the state’s decision making, indeed, the state’s authority 

pursuant to the Clean Air Act. 

If I might add very briefly, at the outset of your question you 

noted that EPA waited six years to approve and act on Texas’s 

plan, and that’s actually a big component of this Regional Haze regime, that EPA has 18 months by statute to judge a state plan, and 

yet what it has done time after time and state after state is sit on 

these plans well past the 18 months, and what that does is under 

the Clean Air Act, environmental groups are allowed to sue the 

EPA to compel missed deadlines. The upshot is, because EPA has 

not been meeting its statutory responsibilities to review state plans 

in a timely fashion, they’ve opened themselves up to what are 

known as these ‘‘sue and settle’’ litigations or lawsuits whereby 

they become beholden to these ultra-rushed deadlines, these ultrarushed rulemakings of which Texas was one. 

So that is a facet I wasn’t able to address in my oral testimony 

but it is an important element of this regime as implemented. The 

Agency simply has not been meeting its statutory responsibilities 

in reviewing these plans. They’ve left states twisting in the wind. 

Very briefly, I’ll note that Texas submitted its plan in 2009 in 

accordance with 2006 document—I’m sorry—guidance documents 

on Regional Haze issued by EPA. So Texas was using the most recent documentation while EPA sat on the Texas plan. They issued 

updated guidance on which the Texas plan was judged. So it’s sort 

of, you know, after the fact review with respect to—or I guess a 

bait and switch. I’m not sure what metaphor I’m looking for. But 

Texas based its plan on the rules that were in play when they submitted it. EPA waited six years, changed the rules, and then 

judged the Texas plan based on different rules. So I’m glad I was 

afforded the opportunity to discuss that matter. 

Mr. NEUGEBAUER. Well, you know, it’s my understanding that 

EPA’s own monitors showed that Texas had already achieved its 

visibility goals. Can you address that? How does that make sense? 

Mr. YEATMAN. You’re exactly right. Again, EPA is going to base 

its regulation upon model results. However, real-world results, the 
86 

last five years, the running average at the Big Bend National Park 

indicates that Texas has already achieved EPA’s 2018 goal. So despite the fact that Texas has already achieved EPA’s 2018 goal, 

EPA’s own goal, and despite the fact that EPA’s controls don’t result in any visibility benefit and they cost about two billion dollars, 

you know, EPA proceeded the pace. So it is—that’s another troubling aspect certainly of the Texas FIP. 

Mr. NEUGEBAUER. So let me understand that. So waited five 

years, and then Texas was already meeting the goal, but EPA denied their plan and said we want you to do a new plan, which as 

I understand will force Texas to spend $2.8 billion to increase an 

already 28.4-mile view by the length of seven football fields. Does 

that make sense for—I think that’s $2.8 million a yard. 

Mr. YEATMAN. That sounds—now, cost figures I have heard I 

guess perhaps closer to two billion dollars. Nonetheless, we’re talking billions of dollars for benefits that are literally invisible. So the 

only dispute I would have with your comment, respectfully, is that 

Texas achieved the EPA’s goal over the last five years while EPA 

was dithering on its plan. 

Mr. NEUGEBAUER. Thank you. I yield back. 

Chairman BRIDENSTINE. The gentleman yields back. 

I now recognize the Ranking Member, Ms. Johnson, for five minutes. 

Ms. JOHNSON. Thank you very much, Mr. Chairman. 

Mr. Polkowsky, I appreciated your quoting President Teddy Roosevelt in your testimony as he was surely someone ahead of his 

time in contemplating issues and environmental health. In 1908 in 

a speech given at the opening of the Conference on Conservation 

and Natural Resources, he said, ‘‘But the time has come to inquire 

seriously what will happen when our forests are gone, when the 

coal, the iron, the oil and the gas are exhausted, when the soil 

shall be still further impoverished and washed into streams, polluting the rivers, denuding the fields, obstructing the navigation. 

These questions do not relate only to the next century or to the 

next generation. It is time for us now as a Nation to exercise the 

same reasonable foresight in dealing with our great natural resources that would be shown by any prudent man and conserving 

and widely using the property which contains the assurance of 

well-being for himself and his children.’’ 

More than 100 years later, it seems that we still are working 

against the forces that would keep us from achieving the vision laid 

out by President Roosevelt when he had this in mind. Why is it important that we continue to improve the air quality for our National Parks and around the country? Is it simply good enough to 

achieve some arbitrary standard or should we strive to make good 

on the words of President Roosevelt? 

Mr. POLKOWSKY. Well, I certainly think we should make good on 

the words of President Roosevelt, and I think that sort of having 

a false dichotomy of looking at this as visibility protection or public 

health is just—it’s wrong. We live in one atmosphere, and we 

should be striving to get that atmosphere as clean as we can, to 

improve public health, to improve the aesthetic quality of our parks 

and wilderness areas as one program moving forward. And I think 
87 

the history of looking at EPA’s Visibility Protection program has 

been one of applying careful science to exactly that goal. 

Ms. JOHNSON. Thank you. The Clean Air Act’s Visibility Protection program is grounded in science, showing that reducing pollution that scatters light like sulfur dioxide, nitrogen oxide, and particulate matter results in cleaner and clearer air. Visibility impairment is measured in deciviews, a measure of the perceptive change 

in visibility where the higher the deciview value, the worse the visibility impairment. 

In his testimony, Mr. Yeatman suggests that because the average 

person may not be able to perceive or visibly discern the reduction 

in haze achieved through the additional controls required by EPA 

and because of that, the controls are not worth the added cost. Do 

people actually notice visibility improvement? Is a one deciview of 

visibility improvement, or conversely, degradation, actually perceptual to a National Park visitor? And can we explain why emissions 

reductions result in less than a deciview of improvement are needed to advance the Clean Air Act objectives? 

Mr. POLKOWSKY. The answer is that any given view can take 

anywhere from a half a deciview to be visible to several deciviews 

but people in general on views that incorporate a wide aspect of 

contrast change and enough sky color can see a one-deciview 

change. A study in Phoenix looked at a deciview change over one 

deciview at a time from 14 deciviews to 32 deciviews, and people 

ranked those, 385 people ranked those in absolute order from good 

to bad, and that wouldn’t have happened if they couldn’t perceive 

a change of a deciview. 

And so it’s really important that we also make progress towards 

improving these deciview readings at these parks and wilderness 

areas, and you can only do that incrementally, and one single 

source may only move a fraction but the courts and EPA have said 

that, you know, this is the way you move forward. 

Ms. JOHNSON. Thank you very much. My time is about to expire. 

Chairman BRIDENSTINE. The gentleman from Louisiana, Mr. 

Abraham, is recognized for five minutes. 

Mr. ABRAHAM. Thank you, Mr. Chairman. 

Mr. Polkowsky, in your testimony you mentioned innovation implementation of EPA’s rules and orders, and I would probably 

argue that I would use a different adjective that probably in this 

public forum would not be appropriate in my opinion. 

I’ve heard when Mr. Neugebauer, you said, Mr. Yeatman, that 

Texas has achieved its own goal, and the states are doing a wonderful job. I’ve heard that this implementation of EPA’s rules in 

this instance would cost billions of dollars and increase energy 

costs, as you said, Mr. Schroedter. And again, I don’t think anybody on this panel doesn’t want clean air and beautiful, pristine 

national parks, but I think I could argue that with the billions of 

dollars, the increased energy costs, states doing a great job themselves, that the consumer is not going to be able to afford to go to 

the parks if this goes into law. 

Now, I’m a physician by trade, so I have to make decisions on 

objective data and hard science, and Mr. Yeatman and Mr. Flynn, 

I’ll address this question to you. What science and modeling has 
88 

the EPA used to come up with this? I mean, I can’t find any, and 

maybe I’m missing something, but I’ll let you respond. 

Mr. YEATMAN. Thank you for the question. There are no tricks. 

I mean, this is—what I demonstrated to you was precisely what 

EPA is bringing to the table. With respect to the previous discussion about deciview and visibility, that Oklahoma picture, the sideby-side one, that was 2.89 deciviews. The Texas picture, that was 

.5 deciviews. Now, according to peer-reviewed research, there is a 

20 to 40 percent change of the average person being able to view 

a one-deciview change. We saw that difficulty. It was evident when 

we compared the—— 

Mr. ABRAHAM. But the EPA claimed that the average person can 

pick up one single deciview. That can’t be correct. 

Mr. YEATMAN. Well, respectfully, I think EPA’s language is ‘‘likely,’’ so they use hedge words such as that. I don’t think they’ve ever 

definitively said that one deciview indeed would be visible, and indeed, the agency never directly takes on for obvious reasons the putative benefits of its rule. 

Mr. ABRAHAM. Thank you, Mr. Chairman. That’s all I have. I 

yield back. 

Chairman BRIDENSTINE. The gentleman yields back. 

I now recognize the gentleman from Michigan, Mr. Moolenaar, 

for five minutes. 

Mr. MOOLENAAR. Thank you, Mr. Chairman. Thank you, panelists. 

Mr. Yeatman, I wanted to ask you about the sue-and-settle lawsuits and this concept that according to your written testimony, 

every EPA disapproval of a state Regional Haze plan and every 

EPA Federal Implementation Plan has been rendered pursuant to 

a sue-and-settle lawsuit between environmental special interests 

and the Agency. I wondered if you could explain for us how that 

works and what are the practical ramifications for that? 

Mr. YEATMAN. Thank you very much for the question. So it 

works—I laid it out in a previous answer. Really, it’s a function of 

EPA’s inability to meet its statutory responsibilities. EPA is leaving states twisting in the wind while it waits years to respond to 

these plans, and because the statute affords special interests the 

opportunity to sue the EPA to compel the Agency to meet its nondiscretionary duties, what we have is a scenario whereby EPA sits 

on the plan, exceeds the statutory responsibility, opens itself up to 

litigation, that then leads to these—the practical ramification is a 

rushed deadline. State after state after state has complained that 

EPA is imposing these costs, these billion-dollar costs, and conducting these rulemakings on an ultra-tight schedule. So, you 

know, of course a rushed rulemaking is a shoddy rulemaking, so 

sue-and-settle itself in this instance is a function of the Agency’s 

not meeting, failing to meet its statutory responsibilities in reviewing state plans, and the ultimate impact are rushed, poor 

rulemakings. 

Mr. MOOLENAAR. And what is the state’s role in that? I mean, 

they would be a stakeholder. Are they involved in that process? 

Mr. YEATMAN. That’s a wonderful question. I’m glad you brought 

that up. 
89 

The worst element, if you will, of the sue-and-settle component 

of this regulatory regime is that the Agency has actively litigated 

to oppose states from intervening in these sue-and-settle lawsuits, 

so that is—states are the regulated entity. They’re EPA’s partner 

under the cooperative federalism framework. So states become 

aware that these negotiations are occurring between EPA and special interests under the auspices of district court, federal district 

court. States want to intervene. You know, North Dakota has tried 

this, Oklahoma has tried this, Texas has tried this. They won’t intervene and protect their interest. Again, cooperative federalism. 

They’re the regulated entity. EPA when they haven’t actively litigated to oppose state participation, they’ve ignored state stakeholders at the negotiating table. So that has been a very troubling 

aspect. I mean, perhaps the most egregious affront to cooperative 

federalism has been EPA’s activity in the courtroom with respect 

to these sue-and-settle lawsuits. 

Mr. MOOLENAAR. Thank you for clarifying that. 

Mr. Schroedter, am I pronouncing that right? 

Mr. SCHROEDTER. Yes. 

Mr. MOOLENAAR. Thank you. In your written testimony, you 

mention the regressive economic nature of this regulation, and I 

wondered if you’d go into more detail for us on how this rule widens the income inequality gap. 

Mr. SCHROEDTER. Yes. In my testimony, I point out that, for example, with respect to the impact on households that first of all, 

Oklahoma households spend an average of 12 percent of their 

after-tax incomes on energy. Eight hundred and twenty-seven thousand Oklahoma households earn less than $50,000 per year, and 

they spend 21 percent of their after-tax incomes on energy. Three 

hundred and eighty-one thousand households with annual incomes 

of $10,000 to $30,000 spend 25 percent of their after-tax income on 

energy. So you can imagine if we’re talking about rate increases of 

ten percent to 20 percent, which is what’s going to happen in Oklahoma, that these are going to be the most impacted, the lower income and those on fixed incomes, and it’s a regressive ramification 

for Oklahoma households. 

Mr. MOOLENAAR. And how about the effect on small businesses? 

Is that something that would force businesses to close shop or move 

to another state because of these costs? 

Mr. SCHROEDTER. Well, on small businesses, you know, the electric—the energy cost can make a difference between making it and 

breaking it. If you’re on the bubble, let’s say, I mean, if you’re barely getting by and you get hit with a 10 to 15 percent increase, not 

only that, but then you’re looking at more increases, those businesses, those small businesses are likely not going to make it. 

They’re going to shut down. Whether they move to another state 

I think is more for the larger industries and my members where 

if the electric bills become such that they are no longer competitive 

in their operations, they’re going to move the production. What 

you’ll see is, you’ll see moving production to other states, and if 

other states get hit, then what’ll happen? Offshore, perhaps, because it won’t be competitively economic to manufacture the product. So that’s a concern, a big concern. 

Mr. MOOLENAAR. Thank you. 
90 

Chairman BRIDENSTINE. The Ranking Member has requested 30 

seconds to make a second. Without objection, would that be all 

right? Okay. 

Ms. BONAMICI. Thank you, Mr. Chairman. We have no other 

members on this side. 

And I just wanted to request that we put into the record a Sustainable Energy in America fact book from 2016, Bloomberg New 

Energy Finance, that found ′′importantly surging renewables build 

and coal retirements have not triggered a dramatic leap in retail 

power prices. Average retail electricity rates across the country remain 5.8 percent below the recent peak 2008 in real terms in part 

due to cheap generation from natural gas.’’ So without objection, I’d 

like to enter this into the record. 

Chairman BRIDENSTINE. Without objection, so ordered. 

Ms. BONAMICI. Thank you. 

Chairman BRIDENSTINE. You’re welcome. 

[The information appears in Appendix II] 

Ms. BONAMICI. Thank you, Mr. Chairman. 

Chairman BRIDENSTINE. Real quick. On the sue-and-settle issue, 

my understanding is, the sue-and-settle rulemaking that affected 

the state of North Dakota was actually a lawsuit that happened in 

California. Are you aware of that? 

Mr. YEATMAN. Yes, Chairman. 

Chairman BRIDENSTINE. Now, explain to me why the EPA would 

sue to prevent North Dakota from having any kind of involvement 

in that rulemaking? 

Mr. YEATMAN. A matter of legal strategy. The Agency—ultimately, it’s not the EPA that’s suing, it’ll be an environmentalist 

group that—— 

Chairman BRIDENSTINE. Okay. 

Mr. YEATMAN. —would bring the suit to compel EPA to do its 

duty. It is the Northern District Court of California, and the Bay 

area is perceived by such litigants as being more favorable to their 

cause, if you will, than other courts. So that’s why they wouldn’t 

go to North Dakota, a federal district court. That’s why they would 

say you find this unusual arrangement whereby EPA is negotiating 

with an environmental special interest in a northern California 

court North Dakota’s regulatory responsibilities. 

Chairman BRIDENSTINE. Could EPA not—so could EPA not— 

working with the state, could EPA not bring North Dakota to the 

negotiation? 

Mr. YEATMAN. That was the very suit that North Dakota AG 

Wayne Steinem tried to intervene and the Agency actually litigated 

to prevent, so it was—— 

Chairman BRIDENSTINE. When you say ‘‘the Agency,’’ who is ‘‘the 

agency’’? 

Mr. YEATMAN. Well, the Environmental Protection Agency working with the Department of Justice. 

Chairman BRIDENSTINE. So the Agency did sue to prevent North 

Dakota from having a seat at the table? 

Mr. YEATMAN. I guess legalese, slight difference. I mean, they 

litigated—they were already part of the suit as the respondent. 

They joined with the environmental special interests to prevent 

intervention of right by North Dakota. 
91 

Chairman BRIDENSTINE. That is absolutely bullying states. 

I now recognize the gentleman from Alabama, Mr. Palmer, for 

five minutes. 

Mr. PALMER. Thank you, Mr. Chairman. I just want to follow up 

on this issue of how higher energy costs impact families. To the 

point that was made, income—families with incomes below $30,000 

spend almost a quarter of their disposable after-tax income on 

household energy. That’s just now, right now. Among those are senior citizens, which make up, I forget, 20 something million households. Their median income is somewhere below $34,000 a year, 

has a tremendously negative impact on their disposable income, 

and it’s also interesting to note that the National Black Chamber 

of Commerce has addressed this issue in regard to the Clean Power 

Plan, and I think this goes along the same lines, and they project 

that if these EPA regulations go into effect that it’s going to increase poverty, household poverty among African-Americans by 23 

percent, and by 26 percent among Hispanic families. 

That said, there’s some issues here that are very troubling to me, 

and the gentleman from Michigan, Mr. Moolenaar, touched on it, 

and that is this whole issue of sue-and-settle and consent decrees. 

I’ve done a substantial amount of work on the issue of consent decrees at the state level and also looked at the federal level. As a 

matter of fact, I coauthored a paper back a few years ago on how 

state legislatures can protect themselves. 

But what’s going on right now is outside of what we’ve seen in 

years previous. And Mr. Yeatman, you can respond to this. Why 

would you think the EPA hasn’t fought these suits through the 

courts including going all the way through the appeals process to 

get a judgment rather than simply entering into a consent decree? 

You can use your imagination. 

Mr. YEATMAN. It is a fantastic question, and it’s an issue we’ve 

been pressing at CEI is for the Agency to defend its discretion, to 

defend its prerogatives, to establish its own priorities instead of 

being beholden to environmental special interests and having these 

unelected, again special interests, in effect dictate the Agency’s limited resources. It is—I’m loathe to put a cause behind it. I can only 

find it—I find it inexplicable. 

Mr. PALMER. Well, I can tell you this. In cases that I studied 

where states and the federal government in some cases but most 

of my work was at the state level, it was very evident that state 

agencies wanted to enter into a consent decree because it was their 

way of bypassing the legislature. They were able to increase spending, expand their programs by court order. I mean, what a wonderful opportunity to do that. 

I would—again, using our imagination, I would go so far as to 

say that it appears to me, Mr. Chairman, that the EPA is acting 

in collusion with environmental groups to achieve their agenda, 

whatever it may be, of regulating outside their statutory authority, 

and I think that’s a huge issue. Would you like to respond, Mr. 

Yeatman? 

Mr. YEATMAN. If I might speak to that issue, for whatever reason, a pioneer in this Regional Haze regime has been EPA Region 

6, and that’s Texas, Louisiana, Arkansas, Oklahoma, New Mexico. 

In 2010, so a number of these sue-and-settle consent decrees—you 
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know, one consent decree that affected Region 6 states, we know 

it was brought by Wild Earth Guardians in 2010. We know that 

the then-EPA Region 6 Administrator, Al Armendariz, who you 

might remember resigned in some controversy when he compared 

his enforcement style to that of a crucifixion, we know that he used 

to work at Wild Earth Guardians. We know that after he resigned 

from the EPA, he joined the Sierra Club. We learned from a FOIA 

that there were contacts between Al Armendariz and his former 

colleagues at Wild Earth Guardians regarding the actual—regarding the sue-and-settle consent decree or the sue-and-settle process, 

and he was actually told by the EPA, whoa, you cannot be doing 

that. 

Mr. PALMER. Well, let me tell you what else we’ve discovered in 

that regard. We know that the EPA was holding seminars to teach 

their employees how to avoid FOIAs and National Archives and 

records requests by using websites set up by outside groups and 

maintained by outside groups. So there is collusion here, and Mr. 

Chairman, it may be in our best interests to hold a hearing to see 

if there might even be criminal activity here. Because it seems to 

me that there’s a fraud being perpetrated upon the American people, and I’m going to make this as my closing statement. 

What really bothers me about this is the EPA is trying to regulate everything from ditch water to the climate, now the aesthetics 

of the environment, yet they covered up one of their own scientists’ 

reports in Flint, Michigan, about the lead in water up there. They 

released millions of gallons of toxic material into creeks in Georgia 

and denied that they did it and finally had to admit it, and then 

by their own action released millions of gallons of toxins into the 

Animas River that flowed all the way down into Colorado and Utah 

and New Mexico and tried to cover that up. I think we need to dig 

deeper into this. I yield the balance of my time. 

Chairman BRIDENSTINE. The gentleman from Alabama, Mr. 

Palmer, makes great points. 

I recognize—remember, this is a fly-out day so they’re not likely 

to hold votes open for very long. We’ve got about ten minutes left. 

I recognize Mr. Babin from Texas for five minutes. 

Mr. BABIN. Thank you very much, Mr. Chairman, and I’m just 

going to be very, very brief, and I appreciate what Mr. Palmer— 

those questions that he just asked, and right along those same 

lines, in your written testimony, Mr. Yeatman, you explained how 

EPA repeatedly has employed a supposedly independent consultant 

to second-guess state determinations on Regional Haze. However, 

during the same period, this same independent consultant has also 

worked on Regional Haze rules for environmental special interests 

like the Sierra Club. Does this lead you to question the EPA’s independence? And I would like for you to explain. And then also, to 

your knowledge, how long has this type of arrangement been going 

on, and which state determinations have been affected by her involvement? Thank you. 

Mr. YEATMAN. Thank you for the question. Yes, this raises serious conflict-of-interest concerns. This independent consultant has 

been employed by the Sierra Club with the National Parks Conservation Association on I believe it’s six different Regional Haze 

rulemakings. I can—in the record, I can put down the states. I 
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don’t know them off the top of my head. At the same time, she’s 

been employed by the EPA for five different rulemakings. So this 

is the same—during the same Administration, the same regulatory 

regime, the same independent consultant, and just to clarify what’s 

going on here, the states spent thousands of hours on these Regional Haze plans. These Regional Haze plans are thousands of 

pages long. It’s a lot of expertise. It’s a lot of resources that states 

expend on them. This independent consultant, who again seems to 

be playing both sides of the field here, based on her analysis, EPA 

is disapproving the state plan. So we’ve got on the one hand a cosovereign of the United States, thousands of hours of work. On the 

other hand, that work being effectively shown to the side, cast by 

the wayside due to the input of this one contractor. 

So it is one other point with respect to this. Sierra Club is one 

of the environmental special interests that has been involved in 

each of the sue-and-settle lawsuits that have led to these deadlines 

for these rulemakings. That means that EPA before the courts and 

Sierra Club are adversaries on this, you know, putatively or supposedly, you know, in our adversarial legal system they’re on opposite sides of the coin. However, at the same time, they’re employing 

the same independent consultant. I mean, it just, again, raises 

these, I would argue serious conflict-of-interest concerns. 

Mr. BABIN. Absolutely. I thank you for that. 

Mr. Chairman, to save time so we can go vote, I yield back the 

balance of it. 

Chairman BRIDENSTINE. I’d like to thank the gentleman from 

Texas. 

I thank the witnesses for their valuable testimony today and the 

members for their questions. The record will remain open for two 

weeks for additional comments and written questions from the 

members. 

Mr. Babin, if you have additional questions, you can certainly 

submit them for the record. 

This hearing is adjourned. Thank you. 

[Whereupon, at 10:49 a.m., the Subcommittee was adjourned.] 

(95) 

Appendix I 

ANSWERS TO POST-HEARING QUESTIONS
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ANSWERS TO POST-HEARING QUESTIONS

Responses by Mr. William Yeatman 
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Responses by Mr. Thomas P. Schroedter 
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Responses by Mr. Bruce Polkowsky 
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Responses by Mr. Aaron M. Flynn 
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Visit the folling website for the full report https://www.energyfutureholdings.com/ 

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