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EPA REGULATORY OVERREACH: 

IMPACTS ON AMERICAN COMPETITIVENESS 

HEARING 

BEFORE THE

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

June 4, 2015 

Serial No. 114–21 

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

( 

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

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

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 

STEVEN M. PALAZZO, Mississippi 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

BILL POSEY, Florida 

THOMAS MASSIE, Kentucky 

JIM BRIDENSTINE, Oklahoma 

RANDY K. WEBER, Texas 

BILL JOHNSON, Ohio 

JOHN R. MOOLENAAR, Michigan 

STEVE KNIGHT, California 

BRIAN BABIN, Texas 

BRUCE WESTERMAN, Arkansas 

BARBARA COMSTOCK, Virginia 

DAN NEWHOUSE, Washington 

GARY PALMER, Alabama 

BARRY LOUDERMILK, Georgia 

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 
(III) 

C O N T E N T S 

June 4, 2015 

Page 

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

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

Opening Statements 

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

Science, Space, and Technology, U.S. House of Representatives ..................... 6 

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

Statement by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives .... 8 

Written Statement ............................................................................................ 9 

Witnesses: 

Mr. Bob Kerr, President, Kerr Environmental Services Corp. 

Oral Statement ................................................................................................. 11 

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

Mr. Bill Kovacs, Senior Vice President, Environment, Technology and Regulatory Affairs, U.S. Chamber of Commerce 

Oral Statement ................................................................................................. 26 

Written Statement ............................................................................................ 28 

Dr. Jerome A. Paulson, FAAP Chair, American Academy of Pediatrics Council 

on Environmental Health Executive Committee 

Oral Statement ................................................................................................. 50 

Written Statement ............................................................................................ 52 

Mr. Ross Eisenberg, Vice President, Energy and Resources Policy, National 

Association of Manufacturers 

Oral Statement ................................................................................................. 63 

Written Statement ............................................................................................ 65 

Discussion ................................................................................................................. 90 

Appendix I: Answers to Post-Hearing Questions 

Mr. Bill Kovacs, Senior Vice President, Environment, Technology and Regulatory Affairs, U.S. Chamber of Commerce ........................................................ 118 

Dr. Jerome A. Paulson, FAAP Chair, American Academy of Pediatrics Council 

on Environmental Health Executive Committee ............................................... 136 

Mr. Ross Eisenberg, Vice President, Energy and Resources Policy, National 

Association of Manufacturers .............................................................................. 140 

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 .... 146 

Documents submitted by Representative Eddie Bernice Johnson, Ranking 

Member, Committee on Science, Space, and Technology, U.S. House of 

Representatives .................................................................................................... 159 
Page

IV 

Documents submitted by Representative Donna F. Edwards, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 165 

Document submitted by Representative Suzanne Bonamici, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 174 

Document submitted by Representative Don S. Beyer, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 216 

Document submitted by Representative Mark Tonko, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 219 

Document submitted by Representative Gary Palmer, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 222 
(1) 

EPA REGULATORY OVERREACH: 

IMPACTS ON AMERICAN COMPETITIVENESS 

THURSDAY, JUNE 4, 2015 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, 

Washington, D.C. 

The Committee met, pursuant to call, at 10:09 a.m., in Room 

2318 of the Rayburn House Office Building, Hon. Lamar Smith 

[Chairman of the Committee] presiding. 
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Chairman SMITH. The Committee on Science, Space, and Technology 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 ‘‘EPA Regulatory Outreach: Impacts on Industry.’’ I am going to recognize myself for five minutes 

for an opening statement, and then I’ll do the same for the Ranking Member. 

Over the last year, the Environmental Protection Agency has released some of the most expensive and expansive regulations in its 

history. These rules will cost billions of dollars, place a heavy burden on American families, and diminish the competitiveness of 

American industry around the world. 

Today’s hearing will examine this Administration’s unprecedented regulatory agenda and the manner in which EPA has used 

secret science, questionable legal interpretations, and flawed analysis to promote these rules. Specifically, we will hear from our witnesses about how the Clean Power Plan, the Ozone National Ambient Air Quality Standards, and the definition of the ‘‘Waters of the 

United States’’ adversely impact the American economy with little 

benefit to our environment. 

The so-called Clean Power Plan is a power grab that will force 

states to reach arbitrary and often impossible targets for carbon 

emissions. These measures will impose tremendous costs on everyday Americans. It will shut down large numbers of affordable 

power plants, which increases the cost of electricity and puts the 

reliability of the electric grid into question. The Clean Power Plan 

will have an even greater impact on those who live on fixed incomes, such as the elderly and the poor, who are the most vulnerable to increases in the price for some of our most basic necessities 

like electricity. EPA asserts that the Clean Power Plan will help 

combat climate change. However, EPA’s own data demonstrates 

that is not the case. The EPA data shows that this regulation 

would eliminate much less than one percent of global carbon emissions and would reduce sea-level rise by only 1/100th of an inch, 

the thickness of three sheets of paper. This rule represents massive 

costs without significant benefits. In other words, it’s all pain and 

no gain. 

EPA also seeks to impose stricter ozone standards by lowering 

the standard from the current 75 parts per billion to between 65– 

70 ppb. Analysis conducted by EPA shows that this rule would cost 

at least $15 billion annually, and industry groups believe the costs 

will be even greater. Once again, these costs come with few benefits. In fact, EPA’s own figures show that since 1980, ozone levels 

have decreased by 33 percent. Today’s air quality will continue to 

improve with the expected development of practical new technologies. 

Last week, the EPA submitted its final rule to define the ‘‘Waters 

of the United States.’’ This is the EPA’s latest attempt to expand 

its jurisdiction and increase its power to regulate American waterways, even if that means invading Americans’ backyards. The rule 

will make it difficult for farmers and others to improve their land 

and expand their businesses. While the draft rule left many questions as to which bodies of water the EPA will claim under its ju-
7 

risdiction, the final rule is more specific. As many had predicted, 

EPA has claimed unprecedented jurisdiction over many different 

kinds of water, including those that temporarily result from a 

‘‘drizzle.’’ The EPA actually used that word, ‘‘drizzle.’’ EPA will now 

have the authority to oversee features such as prairie potholes and 

even areas that are not always filled with water. Under this regulatory regime, Americans will be subject to required permits and 

the constant threat of government intervention. The onslaught of 

EPA regulations continues. 

I look forward to hearing from today’s witnesses about the impact of these burdensome EPA regulations. 

[The prepared statement of Chairman Smith follows:] 

PREPARED STATEMENT OF CHAIRMAN LAMAR S. SMITH

Over the last year, the Environmental Protection Agency (EPA) has released some 

of the most expensive and expansive regulations in its history. 

These rules will cost billions of dollars, place a heavy burden on American families and diminish the competitiveness of American industry around the world. 

Today’s hearing will examine this unprecedented regulatory agenda and the manner in which EPA has used secret science, questionable legal interpretations, and 

flawed analysis to promulgate these rules. 

Specifically, we will hear from our witnesses about how the Clean Power Plan, 

the Ozone National Ambient Air Quality Standards and the definition of the 

‘‘Waters of the United States’’ unreasonably impact the American economy with little benefit to our environment. 

The so-called Clean Power Plan, proposed by EPA last June, is a power grab that 

will force states to reach arbitrary and often impossible targets for carbon emissions. 

These measures will impose tremendous costs on everyday Americans. It will shut 

down large numbers of affordable coal-fired power plants, which increases the cost 

of electricity and puts the reliability of the electric grid into question. 

The Clean Power Plan will have an even greater impact on those who live on fixed 

incomes, such as the elderly and the poor, who are the most vulnerable to increases 

in the price for some of our most basic necessities like electricity. 

EPA asserts that the Clean Power Plan will help combat climate change. However, EPA’s own data demonstrates that is not the case. 

Even EPA data shows that this regulation would eliminate much less than one 

percent of global carbon emissions and would reduce sea level rise by only 1/100th 

of an inch (according to NERA economic consulting), the thickness of three sheets 

of paper. 

This rule represents massive costs without significant benefits. In other words, it’s 

all pain and no gain. 

EPA also seeks to impose stricter ozone standards by lowering the standard from 

the current 75 parts per billion (ppb) to between 65–70 ppb. Analysis conducted by 

EPA shows that this rule would cost at least $15 billion annually, and industry 

groups believe the costs will be even greater. 

Once again, these costs come with few benefits. In fact, EPA’s own figures show 

that since 1980, ozone levels have decreased by 33 percent. 

Today’s air quality will continue to improve with the expected development of 

practical new technologies. 

Just last week, the EPA submitted its final rule to define the ‘‘Waters of the 

United States.’’ 

This is the EPA’s latest attempt to expand its jurisdiction and increase its power 

to regulate American waterways-even if that means invading Americans’ own backyards. 

The rule will make it difficult for farmers and builders to improve their land and 

expand their businesses. 

While the draft rule left many questions as to which bodies of water the EPA will 

claim under its jurisdiction, the final rule is more specific. As many had speculated, 

EPA has claimed unprecedented jurisdiction over many different kinds of water, including those that temporarily result from a ‘‘drizzle.’’ 

EPA will now have the authority to oversee features such as ‘‘prairie potholes’’ 

and even areas that are not always filled with water. 
8 

Under this regulatory regime, Americans will be subject to stringent permitting 

and the constant threat of government intervention. The onslaught of EPA regulations continues. 

I look forward to hearing from today’s witnesses about the impact of these burdensome EPA regulations. 

Chairman SMITH. I now recognize the Ranking Member, the gentlewoman from Texas, Ms. Johnson, for her opening statement. 

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

Unfortunately, today’s hearing is just a continuation of the same 

familiar theme we have heard in this Congress: resistance to the 

EPA’s efforts to carry out its mission to protect the nation’s environment and the public health, resistance that is unsupported by 

scientific evidence. 

It thus should not be a surprise that this hearing, like all others 

on EPA’s activities, will fail to offer any constructive solutions for 

lowering ozone and cutting carbon emissions. Instead, it will serve 

as one more platform for industry to voice its opposition to regulations that will make the air we breathe cleaner, the water we drink 

safer, and that will help address the looming challenge of climate 

change. Just this week, as a matter of fact, about 30 leaders of denominations throughout the African American community, the national leadership, came to the Congressional Black Caucus to announce their national movement to support cleaning up the environment. 

And while Congressional oversight of EPA’s activities is appropriate, the hearings held by this Committee have not met standards of serious oversight. For example, this Committee has failed 

to bring the expertise necessary to truly examine the research, policies and technologies needed to confront the most important environmental issue of our time: climate change. Instead, the so-called 

experts the Majority has brought before this Committee too often 

represent views from outside the mainstream of the scientific community and are industry opponents with a vested interest in maintaining the status quo. It is puzzling to me that our Committee is 

going down such a path just as other nations and many in the business community are stepping up to address the challenge presented 

by climate change. Those nations and those businesses are looking 

to the United States government to provide leadership. 

Just last week, six major oil companies, including BP, Shell, and 

Total sent a letter to the United Nations recognizing climate 

change and the role of their companies in lowering carbon emissions. In the letter they state: ‘‘For us to do more, we need governments across the world to provide us with clear, stable, long-term, 

ambitious policy frameworks. This would reduce uncertainty and 

help stimulate investments in the right low-carbon technologies 

and the right resources at the right pace.’’ It is unfortunate that 

instead of contributing to the development of this long-term policy 

that these oil companies are asking Congress for, this Committee 

has too often become a forum for climate change denial. 

With respect to today’s hearing, it is clear that a cleaner environment and a stronger economy are not mutually exclusive. Stricter 

pollution limits have historically led to innovation and the creation 

of new technologies that have wound up creating jobs while protecting our environment. I am confident American industry will 
9 

continue that record of innovation and job creation as new environmental standards are adopted. 

And finally, I am proud to say that I was a nurse before I entered politics, and I can think of no mission of the federal government that is more important or noble than EPA’s mission to protect 

human health and the environment. I look forward to Dr. Paulson’s 

testimony on the public health benefits of the environmental regulations we will be discussing today. 

In closing, I look forward to the day when this Congress and this 

Committee will step back from the counterproductive opposition to 

EPA’s efforts to carry out its statutorily mandated mission. It is 

not a good use of our time, and I hope that we can instead come 

together to advance our economy and a cleaner environment and 

a healthier public. 

Mr. Chairman, before I yield back, I’d like to enter into the 

record the letter that I mentioned in my remarks. I thank you, and 

I yield back the balance of my time. 

[The prepared statement of Ms. Johnson of Texas follows:] 

STATEMENT SUBMITTED BY FULL COMMITTEE RANKING MEMBER

EDDIE BERNICE JOHNSON

Thank you, Mr. Chairman. Unfortunately today’s hearing is just 

a continuation of the same familiar theme we have heard in this 

Congress—resistance to the EPA’s efforts to carry out its mission 

to protect the nation’s environment and the public health—resistance that is unsupported by the scientific evidence. 

It thus should not be a surprise that this hearing, like all the 

others on EPA’s activities, will fail to offer any constructive solutions for lowering ozone or cutting carbon emissions. Instead, it will 

serve as one more platform for industry to voice its opposition to 

regulations that will make the air we breathe cleaner, the water 

we drink safer, and that will help address the looming challenge 

of climate change. 

And while congressional oversight of EPA’s activities is appropriate, the hearings held by this Committee have not met the 

standard of serious oversight. For example, this Committee has 

failed to bring in the expertise necessary to truly examine the research, policies, and technologies needed to confront the most important environmental issue of our time—climate change. Instead, 

the so-called experts the Majority has brought before this Committee too often represent views from outside the mainstream of 

the scientific community or are industry opponents with a vested 

interest in maintaining the status quo. 

It is puzzling to me that our Committee is going down such a 

path just as other nations and many in the business community 

are stepping up to address the challenge presented by climate 

change. Those nations and those businesses are looking to the 

United States government to provide leadership. Just last week, six 

major oil companies, including BP, Shell, and Total sent a letter to 

the United Nations recognizing climate change and the role of their 

companies in lowering carbon emissions. In the letter they state: 

‘‘For us to do more, we need governments across the world to provide us with clear, stable, long-term, ambitious policy frameworks. 

This would reduce uncertainty and help stimulate investments in 
10 

the right low-carbon technologies and theright resources at the 

right pace.’’ 

It is unfortunate that instead of contributing to the development 

of the long-term policies that these oil companies are asking Congress for, this Committee has too often become a forum for climate 

change denial. 

With respect to today’s hearing, it is clear that a cleaner environment and a strong economy are not mutually exclusive. Stricter 

pollution limits have historically led to innovation and the creation 

of new technologies that have wound up creating jobs while protecting our environment. I am confident American industry will 

continue that record of innovation and job creation as new environmental standards are adopted. 

Finally, I am proud to say that I was a nurse before I entered 

politics. And I can think of no mission of the federal government 

that is more important or noble than EPA’s mission to ‘‘protect 

human health and the environment.′′ I look forward to Dr. 

Paulson’s testimony on the public health benefits of the environmental regulations we will be discussing today. 

In closing, I look forward to the day when this Congress and this 

Committee will step back from the counterproductive opposition to 

EPA’s efforts to carry out its statutorily mandated mission. It is 

not a good use of our time, and I hope that we can instead come 

together to advance our economy and a cleaner environment and 

healthier public. 

Mr. Chairman, before I yield back I’d like to enter into the record 

the letter that I mentioned in my remarks. Thank you and I yield 

back the balance of my time. 

Chairman SMITH. Without objection. 

[The information appears in Appendix II] 

Chairman SMITH. And while we’re asking unanimous consent to 

put items into the record, I’d like to ask unanimous consent to put 

into the record letters or documents we received from the Small 

Business and Entrepreneurship Council, from the American Chemistry Council, and that does it for right now. 

[The information appears in Appendix II] 

Chairman SMITH. Thank you, Ms. Johnson, for your opening 

statement. 

Let me go on and introduce our witnesses today. Our first witness is Mr. Bob Kerr, President of Kerr Environmental Services 

Corporation. Mr. Kerr has 29 years’ experience as an environmental consultant specializing in stream and wetland mitigation, 

natural resources consulting, National Environmental Policy Act 

compliance, and environmental contaminant studies. Mr. Kerr received his bachelor’s degree in biology from the State University of 

New York at Fredonia and his master’s degree in marine environment studies from Stony Brook University. 

Our next witness today is Mr. Bill Kovacs, Senior Vice President 

for Environment, Technology and Regulatory Affairs at the U.S. 

Chamber of Commerce. Mr. Kovacs initiates and leads multidimensional national issue campaigns on comprehensive energy legislation, complex environmental rulemakings, telecommunications reform, emerging technologies, and the systematic application of 

sound science to the federal regulatory process. Mr. Kovacs re-
11 

ceived his bachelor’s degree from the University of Scranton and 

his law degree from Ohio State University. 

Our next witness is Dr. Jerome Paulson, Chair of the American 

Association of Pediatrics Council on Environmental Health Executive Committee. Dr. Paulson also directs the Mid-Atlantic Center 

for Children’s Health and Environment, a federally funded environmental health specialty unit that provides education and outreach 

to health professionals, parents and the community. In addition, 

Dr. Paulson has served as a Special Assistant to the Director of 

Centers for Disease Control’s National Center on Environmental 

Health. Dr. Paulson received his bachelor’s degree in biochemistry 

from the University of Maryland and his M.D. from Duke University. 

Our final witness today is Mr. Ross Eisenberg, Vice President of 

Energy and Resources Policy at the National Association of Manufacturers. Mr. Eisenberg oversees NAM’s energy and environmental 

policy work and has expertise on issues that range from energy 

production and use to air and water quality, energy efficiency, and 

environmental regulation. Before joining NAM in 2012, Mr. 

Eisenberg spent more than five years as Environmental and Energy Counsel at the U.S. Chamber of Commerce. Mr. Eisenberg received his bachelor’s degree in English and political science from 

Emery University and his law degree from Washington Lee University School of Law. 

We welcome you all and look forward to your testimony today, 

and Mr. Kerr, we’ll begin with you. Make sure your mic is on there. 

TESTIMONY OF MR. BOB KERR, PRESIDENT, 

KERR ENVIRONMENTAL SERVICES CORP. 

Mr. KERR. Thank you. Chairman Smith, Members of the Committee, I appreciate the opportunity to testify today. My name is 

Bob Kerr, and I’m President of Kerr Environmental Services, an 

environmental consulting and water resources engineering firm located in Virginia Beach, Virginia. I’ve provided wetlands consulting 

and permitting assistance throughout Virginia and North Carolina 

for more than 26 years. 

Since 1972, the Clean Water Act has played an important role 

in improving the quality of the nation’s water resources yet there 

continues to be frustration and uncertainty over the scope of the 

Act and the appropriate role of the federal government in protecting the nation’s waters. 

Decades after the enactment of the Clean Water Act, there still 

is no easy way to determine if certain types of waters are subject 

to state law or federal mandates. EPA and the Corps recently 

issued a rule intended to clarify what is subject to federal regulation. Unfortunately, the rule does not provide the needed predictability and certainty in the permitting process. It fails to follow the 

intent of Congress, ignores Supreme Court precedent, and does not 

respect the authority of the state to regulate their land and water 

resources. 

The agencies claim the rule does not expand federal jurisdiction 

but that’s simply not the case. The rule establishes a broader definition of ‘‘tributaries,’’ which, for the first time, includes ditches 

and streams that only flow after it rains. It also allows the agen-
12 

cies to regulate intermittent and ephemeral drainages by rule 

classifying them as tributaries whereas before the agencies required an analysis of their significant nexus to traditional navigable waters before federal jurisdiction could be established. While 

this certainly provides clarity, it does not limit jurisdiction. 

The new definition of ‘‘neighboring’’ includes areas that were not 

previously federally regulated such as non-wetlands located more 

than a quarter of a mile from a traditional navigable water or similar features located within a floodplain and up to 1,500 feet from 

the feature. Moreover, the agencies retain extensive authority to 

interpret certain ambiguous definitions as they see fit. This will 

allow for the inconsistent application of the rule among regulators 

both within a Corps district and across the country. Ultimately, the 

rule will lead to more litigation, project delays, more landowners 

needing permits, and the higher costs of permitting avoidance and 

mitigation. 

You might look at the rule and think it’s a dream come true for 

a consultant like me because more regulation will mean more business. I fear the exact opposite. Under the new rule, I’ll need to 

complete more jurisdictional determinations, will have to conduct 

multiple tests to determine whether a feature qualifies as a water 

of the United States. It’ll take additional time and resources to 

complete the tests, and that will cost clients more money. Not 

knowing their permit costs in advance increases financial risk for 

my clients. As such, clients may not—may decide not to pursue 

some projects as a result. 

Some cases may also be so complex that they are too time-consuming or costly to resolve. In such cases, clients have the option 

to concede federal jurisdiction and proceed with permitting and 

mitigation through a preliminary jurisdictional determination, but 

that isn’t a fair program to me nor does it keep the legislative intent of the Clean Water Act, and that’s not good for the economy 

as a whole. 

To start to fix this, we need a new rule that respects the state’s 

role in regulating waters. Many aspects of the Clean Water Act are 

vague but it’s clear that Congress intended to create a partnership 

between the federal agencies and state government to protect our 

nation’s water resources. The Supreme Court has twice affirmed 

that the Clean Water Act places limits on federal authority. There 

is a point where federal authority ends and state authority begins. 

The final rule published by the EPA and Corps would assert jurisdiction over many features that are isolated, carry only minor volumes of water, or have only theoretical impacts on traditional navigable waters. These waters are properly regulated by the states. 

The federal government cannot just assert jurisdiction over everything, yet that appears to be the agencies’ solution, and many 

of the bright-line limits written into the rule seem so large in scale 

or so vague as to have created no actual limitation. Precedent suggests that the courts will again have to rein in the overarching rule 

but only after countless years of litigation. The wiser path forward 

is for Congress to act now. Let’s get the agencies to withdraw the 

rule, resolve the problems, provide the clarity we need as to what 

constitutes a water of the United States. 

Thank you again for the opportunity to testify today. 
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[The prepared statement of Mr. Kerr follows:] 
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Chairman SMITH. Thank you very much. 

Mr. Kovacs. 

TESTIMONY OF MR. BILL KOVACS, 

SENIOR VICE PRESIDENT, ENVIRONMENT, 

TECHNOLOGY AND REGULATORY AFFAIRS, 

U.S. CHAMBER OF COMMERCE 

Mr. KOVACS. Thank you, Chairman Smith and Ranking Member 

Johnson and Members of the Committee. 

For my opening remarks today, I’m going to address the question 

many of us have been asking for a while: How did an Environmental Protection Agency acquire such great power over energy 

policy, state waters, land use, and the nation’s economic development at the expense of states which implement over 90 percent of 

the federally delegated programs and are the main point of contact 

for the regulated community? 

The purpose of regulation is to implement the laws passed by 

Congress in the most efficient way to achieve the Congressional intent. In the 1970s, Congress when it enacted these environmental 

laws had very little knowledge of how to protect the environment. 

It also recognized that while it was protecting the environment, it 

would cause, and I emphasize, they recognized in 1970 it would 

cause plants to shut down, jobs to be lost, and harm to impacted 

communities. But to deal with this dilemma, Congress gave the 

EPA very broad authorities to protect the environment but also 

mandated that the EPA continuously evaluate the potential loss or 

shifts in employment resulting from the regulations so that Congress could make corrections based on actual input. 

Congress also authorized citizen suits by granting access to the 

courts to anyone protecting the environment, in effect granting special environmental enforcement authorities to private-sector entities. Then in 1984, the Supreme Court granted deference to EPA’s 

decisions where Congress was silent or vague on any of the statutory provisions in thousands of pages of legislation. In essence, the 

Supreme Court authorized EPA to fill in all of the gaps in the legislation. Almost from the beginning, EPA missed a high percentage 

of its Congressionally mandated deadlines. Since EPA misses between 84 percent and 98 percent of its deadlines, depending on 

which study you believe, citizen suits were brought to force the 

EPA to comply with the deadlines. Rather than arguing it had discretion in meeting the conflicting priorities, EPA entered into consent decrees with advocacy groups agreeing to implement the regulations requested, thereby letting these groups set the policy for the 

Agency and the priorities. 

The best illustration of the impact of the sue-and-settle process 

is that between 2000 and 2013 time frame, approximately 425 

agencies issued almost 50,000 regulations but only 30 of those regulations were costing over a billion dollars a year to the regulated 

community or to the states, and EPA issued 17 of the 30, and those 

17 account for 82 percent of all the costs for all 30 rules. Beginning 

in 1980 and onward, Congress passed numerous regulatory laws to 

provide guidance to the agencies as to the type of information needed to be developed by the agency to ensure that it complied with 

Congress’s intent to have a sound rulemaking record based on fact, 
27 

science and economics. These statutes were the Information Quality Act, the Regulatory Flexibility Act, and unfunded mandates reform. EPA routinely ignores Congressional mandates, and, more 

importantly, it has never started in 35 years a continuing evaluation of the employment impacts of its regulations, thereby leaving 

Congress without the information needed to legislate. 

Therefore, the condition we have today and the circumstances we 

find ourselves in is we have an agency that has been given broad 

delegated authority to make policy. You have a federal judiciary 

that has said that anything that you don’t describe in clear terms, 

that they have—that based on deference, they have the authority 

to fill in the legislative gaps. 

The development of secret sue-and-settle agreements allows 

these advocacy groups to set agency policy, and we have an agency 

that for 35 years has refused to evaluate the impact of regulations 

on employment. We also have an agency that routinely ignores 

Congressional mandates to try to—that fix the regulatory record 

through having the agency talk to small businesses, find out what 

the unfunded mandates are on state and local governments, and 

use sound and science—sound science and factual information. 

If Congress wants its laws implicated according to what you believe you’ve legislated, it must ensure that the agency is accountable to Congress, that the rulemaking process is transparent, that 

it operates within integrity, and provides all of the participants the 

same rights as they participate in the federal rulemaking process. 

Thank you. 

[The prepared statement of Mr. Kovacs follows:] 
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Chairman SMITH. Thank you, Mr. Kovacs. 

Dr. Paulson. 

TESTIMONY OF DR. JEROME A. PAULSON, 

FAAP CHAIR, AMERICAN ACADEMY OF PEDIATRICS 

COUNCIL ON ENVIRONMENTAL 

HEALTH EXECUTIVE COMMITTEE 

Dr. PAULSON. Good morning, Chairman Smith, Ranking Member 

Johnson and Committee members. Chairman Smith, thank you for 

your kind introduction of me, and I will just add that for 30 to 35 

years I also practiced—— 

Ms. EDWARDS. Mr. Chairman, is the mic on? 

Dr. PAULSON. I practiced and taught primary care pediatrics, so 

I was directly involved in the day-to-day pediatric care of children. 

And so with the background that you described and my work as 

a pediatrician that I mentioned, I’m going to comment today on the 

child health benefits of the Clean Power Plan and the EPA’s proposed ozone rule. 

We know very clearly that children are disproportionately at risk 

from environmental pollutants. Children are not little adults, and 

we cannot extrapolate from what we know about adults and assume that that information applies to children, particularly as it 

relates to respiratory illnesses. Children breathe faster than adults, 

they have higher levels of physical activity, and they spend more 

time outdoors. Their lungs are still developing. Therefore, children 

have different outcomes from exposures to ozone and other air pollutants than adults do, and these effects on children last a lifetime. 

Problems that develop in children manifest themselves in adulthood. The work of EPA is essential to protecting children from pollutants and ensuring that children have an optimal environment in 

which to live, learn and play. 

Reducing carbon emissions of fossil fuel power plants represents 

a major step towards addressing a key component of climate 

change in the United States. According to the World Health Organization, over 80 percent of the current health burden from the 

changing climate is on children less than five years old, and that’s 

children here in the United States as well as globally. These burdens on children include injury and death from natural disasters, 

increases in air pollution-related illness, and more heat-related potentially fatal illness. 

Reducing carbon pollution will have an immediate impact on 

child health by reducing emissions of other pollutants and the resultant creation of harmful ozone. When fully implemented in 

2030, EPA’s proposed rule for existing power plants will result in 

6,600 fewer premature deaths, 150,000 fewer childhood asthma attacks, and 180,000 fewer missed school days, 3,700 fewer cases of 

bronchitis. This also means that when children are not sick, their 

parents can go to work, keep their jobs and earn money for the 

family. 

Let me tell you about a phone call that I received from a physician about a little girl with asthma. The family and the physician 

were having difficulty keeping her asthma under control in spite of 

adequate medical management. The astute mother reported that 

her daughter’s asthma got worse when the smoke from the power 
51 

plant that was located near her home changed from white to black. 

We were able to determine that the power plant usually burned 

natural gas but was approved to burn coal under certain circumstances. We believe that this little girl’s asthma was exacerbated by the coal burning because of the increase in particulate 

and other air pollutants associated with that fuel. 

It is also clear and compelling scientific evidence that supports 

the need for a strong ozone standard of 60 parts per billion or 

lower. High levels of ozone in the air including levels above 60 

parts per billion can lead to decreased lung function in children, 

coughing, burning and shortness of breath as well as inflammation 

and swelling of the airways. In 2025, a 60-part-per-billion standard 

could prevent 7,900 premature deaths, 1.8 million child asthma attacks, and 1.9 million missed school days. 

I know that the distinguished members of this Committee have 

given many speeches over the course of your careers, and I am sure 

that all of you would be horrified, as I was, to look out at a crowd 

that you were addressing to see a woman in the audience sobbing 

but that was my experience during a luncheon presentation talking 

about ozone as a cause of asthma and a reason for exacerbation of 

asthma. This mom was blaming herself for being a good mother 

and encouraging her son to be physically active and involved in 

outdoor sports only to have him develop asthma. 

The EPA has a fundamental role in ensuring that the environment in which children live, learn and play is safe and healthy and 

allows children to enter adulthood free from environmentally related health problems. The Clean Power Plan and stronger ozone 

NAAQS are essential child health policies that the AAP strongly 

supports. 

Thank you. 

[The prepared statement of Dr. Paulson follows:] 
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Chairman SMITH. Thank you, Dr. Paulson. 

And Mr. Eisenberg. 

TESTIMONY OF MR. ROSS EISENBERG, 

VICE PRESIDENT, ENERGY AND RESOURCES POLICY, 

NATIONAL ASSOCIATION OF MANUFACTURERS 

Mr. EISENBERG. Good morning, Chairman Smith, Ranking Member Johnson, members of the Committee. Thank you for the opportunity to be here today to present the views of the National Association of Manufacturers and our 14,000 members. 

Manufacturers believe regulation is critical to the protection of 

worker safety, public health, and our environment. We believe in 

the mission of the EPA and we support reasonable environmental 

regulation. However, we also bear an unmistakably high burden of 

compliance with the Agency’s regulations. Manufacturers spend, on 

average, over $19,000 per employee per year on regulatory compliance and over $10,000 of this is for environmental regulations. The 

smaller the manufacturer, though, the larger the burden. Manufacturers with less than 50 employees spend over $34,000 per employee per year and over $20,000 of this is due to environmental 

regulations. 

So when the EPA issues a new regulation with new costs and 

new burdens, manufacturers have to pay these costs not op of what 

we’re already doing, the tens of thousands of dollars that we’ve already assumed. So we’re not starting from zero. In fact, our plants 

are already equipped with the best available pollution control technology. We maximize our efficiency and we limit waste and we recycle. And so while we’ll always strive for improvement, in some 

cases we’re really already pushing up against or beyond what technology can deliver, and so we need—what we need as manufacturers more than ever are smarter regulations. 

We just don’t believe we’re getting that from the EPA with respect to the three regulations that we’re here to talk about today: 

ozone, the Cleaner Power Plan, and the ‘‘waters of the United 

States’’ definition. In all three cases, the costs and burdens placed 

on manufacturers as a result of these regulations are very significant and could make us significantly less competitive. 

Manufacturers are committed to reducing ozone levels, and we’ve 

been doing so for decades. We’ve been reducing the emission that 

cause ozone by more than half since 1980. However, the progress 

we’ve made, it also means that both the low-hanging fruit and the 

high-hanging fruit are pretty much gone and so the controls that 

are needed to reduce ozone levels are already in place. In fact, with 

this rule, EPA can only identify about 35 percent of the controls 

and technologies needed to achieve this new 65-parts-per-billion 

standard. You heard that right. A solid two-third of the controls 

that will be needed to comply to this are called unknown controls. 

We don’t know what they are. 

Economic analysis of this new standard shows that it would be 

the most expensive regulation in history. Second place isn’t even 

close. It would cost about $140 billion per year, about $1.7 trillion 

over the next 23 years, placing the equivalent of 1.4 million jobs 

in jeopardy each year and reducing annual household income—consumption—I’m sorry—by an average of about $830 per year. Very 
64 

few low-cost control options exist for this tightening of ozone standard, so if controls aren’t invented in time, what winds up happening is, manufacturers are forced to consider scrapping equipment, scrapping existing plants, replacing them, or just plain old 

shutting them down. And then there’s nonattainment for ozone, 

which is essentially a synonym for no growth. There has to be a 

better way for this than this, and really there is. The current 

standard is only being implemented. It’s going to drive ozone precursor emissions, the emissions that cause ozone, down by another 

36 percent over the next decade. We believe we should let that 

standard work before moving the chains one more time. 

On climate, we’re committing to addressing climate change 

through improved energy efficiency, greater sustainability and reducing our greenhouse gas emissions. We’ve done that. We reduced 

our emissions ten percent over the past decade, but our competitiveness is threatened by the Clean Power Plan as it’s currently 

drafted. Independent analysis of this rule places total compliance 

costs as high as about $366 billion through 2031. Forty-three states 

could experience double-digit electricity prices. That’s very difficult 

for us as we are major, major energy users. And even worse, many 

sectors in my membership, manufacturing, are due to get follow-on 

regulations under the Act that will be modeled off of this one, 

meaning we’re going to be hit twice. 

We believe EPA needs to fix this rule. We agree that adoption 

of a strong and fair international climate agreement should be a 

priority, but we also must be very careful not to lock into place 

policies that will send production and emissions overseas if the rest 

of the world doesn’t play by those same rules in Paris in December. 

Finally, manufacturers are disappointed with the final Waters of 

the United States regulation. We would welcome a clear rule that 

resolves disagreement over scope of the Clean Water Act. Instead, 

we ended up with a final regulation that fails to do this. It fails 

to clear up the problems and may have even created new ones. The 

regulation certainly expands the scope of the Clean Water Act to 

areas that are not even wet, and it fails to provide clear exclusions 

as to what actually qualifies. We’re going to face, manufacturers 

are going to face increased uncertainty, permitting costs, and supply-and consumer-chain disruptions. Ambiguities in the new regulation will give rise to third-party lawsuits, even in cases where 

EPA agrees with us and believes that it is not a water of the 

United States. 

I assure you, we do not enjoy having to have an adversarial position to the EPA on these regulations. We prefer to work with them 

as a partner toward a shared goal of protecting the environment. 

However, we desperately need the EPA to choose a different regulatory path. 

Sadly, we are nearing the time where legislation may be our only 

hope, and we ask this Committee for its help in that pursuit. 

Thank you. 

[The prepared statement of Mr. Eisenberg follows:] 
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Chairman SMITH. Thank you, Mr. Eisenberg, and I’ll recognize 

myself for questions, and Mr. Kerr, let me direct my first question 

to you. 

The EPA claims that under the Waters of the United States final 

rule, it does not expand the scope of federal jurisdiction. Give me 

a couple of quick examples as to why it does expand jurisdiction. 

Mr. KERR. Sure. Under the SWANCC Supreme Court ruling, the 

Supreme Court found that isolated wetlands are not under the jurisdiction of the Clean Water Act, and if they’re to be regulated at 

all, they need to be regulated by the state. Those types of isolated 

wetlands can now be regulated under the Clean Water Act. Under 

the new rule, they can be regulated as an adjacent water. So that’s 

one type of situation where scope’s broadened. 

Chairman SMITH. By the way, I’m just curious. Have we seen the 

word ‘‘drizzle’’ before, water that’s accumulated as a result of drizzle? 

Mr. KERR. Not to my knowledge. 

Chairman SMITH. Okay. That might be another example. 

Mr. KERR. Yeah, and actually I’ve got three or four others. There 

has never been an adjacent feature regulated under the Clean 

Water Act other than wetlands. The only adjacent feature could be 

a wetland. Under the new rule, a pond can be considered adjacent. 

Virtually any kind of other water of the United States can be considered adjacent. That’s a new precedent and was not dictated by 

a court decision. 

Ditches flowing into tributaries can now be regulated as a jurisdictional water. I’ve got a lot of concern with that because by definition, ditches connect into waters of the United States so that they 

drain agriculture, roads, stormwater, you know, a number of features. If they connect to a traditionally navigable water or a tributary, the EPA is saying they can regulate them now. That creates 

at a minimum a lot of confusion. 

Chairman SMITH. And that’s another expansion. 

Mr. Kerr, I know you could go on and on and on. Let me see if 

I can get to some other questions. 

Mr. Kovacs, real quickly, you say that the modeling system used 

by the EPA is biased. What’s an example, and specifically the way 

that it’s biased? 

Mr. KOVACS. Well, I mean, there’s several. One is when we did 

our own modeling on costs several years ago, we found that the 

EPA used what they call a limited model where the only thing they 

looked at was what are the impacts on job growth, and that was 

very narrow in the sense that it asked how many consultants are 

you going to have. So when they modeled the mackerel, for example, it found that it created 8,000 jobs. When we used whole-economy modeling, we found that it lost 240,000 jobs, and that’s one of 

the huge debates that’s going on right now with the Science Advisory Board. They’ve been instructed by Congress to determine 

whether or not EPA is modeling’s is incorrect. 

Chairman SMITH. Okay. Thank you, Mr. Kovacs. 

Dr. Paulson, first of all, you mention in your testimony—I just 

want to bring it out for everybody’s information—that since 1990, 

emissions of six common pollutants have dropped by 41 percent 

through 2008. I think that’s good news. 
91 

You also mention the heartfelt case of a girl with asthma, and 

whenever the smoke from the power plant located near her home 

changed from white to black, when they went from burning natural 

gas to coal, her asthma worsened. We’ve done some research, and 

our research indicates that typically a coal-fired plant produces 

white smoke, not black smoke, and I’ll show a couple photographs. 

Do you know where this plant was located that you referred to? 

Dr. PAULSON. Yes, sir, I do. 

Chairman SMITH. What city or what area? You don’t need to give 

anybody’s identity. I’m just curious where it’s located. 

Dr. PAULSON. Washington, D.C. 

Chairman SMITH. Okay. And we’ll have to check because my information is that even when they’re burning coal, the smoke is 

white, not black, and that might be of interest. Anyway, I just 

wanted to bring that out. I appreciate that. 

My last question goes to Mr. Eisenberg, and this is, does the 

EPA have the legal authority to implement the proposed Clean 

Power Plan? 

Mr. EISENBERG. Certainly that is an open question, I mean, and 

I fear that if they finalize the rule that they proposed, we’re going 

to get some litigation on that. There —we and others have posed 

a number of potential legal obstacles that this thing could go 

through. You know, they have the—they certainly have the authority to regulate greenhouse gases. That’s been settled by the Supreme Court. The issue is, can they be using this statute the way 

they’re using it? They’ve certainly made a lot of interesting choices 

in terms of going—— 

Chairman SMITH. Do you have a legal opinion yourself as to—— 

Mr. EISENBERG. You know, it’s going to be a complicated case. I 

think, you know, certainly there are a lot of potential flaws, legal 

flaws, in this language. 

Chairman SMITH. Okay. What’s an example of one? 

Mr. EISENBERG. So a very easy one is whether or not the section 

111 can be used in light of the fact that they’re already regulating 

power plants under section 112 for hazardous air pollution, can you 

actually do that under section 111, and if so, can you do that for 

everybody else. They didn’t make an independent endangerment 

finding for this one so they just basically said well, cars cause this 

and so power plants must too. There’s a lot of stuff they did in 

there that I think is going to be a real challenge. 

Chairman SMITH. Thank you, Mr. Eisenberg, and the gentlewoman from Texas, the Ranking Member, Ms. Johnson, is recognized for her questions. 

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

Dr. Paulson, in your—in testimony of Mr. Kovacs, he recommended EPA retain the current 2008 ozone standard of 75 parts 

per billion, in large part because EPA is just now starting to implement the 2008 standard. Those who support retaining the current 

standard say it is unfair for EPA to move the goalpost by calling 

for a more stringent standard. As most people know, I’m from Dallas, Texas, an area that is all too familiar with poor air quality. 

Dallas County alone is home to more than 60,000 children and over 

130,000 adults with asthma who are at risk of missing school, 

missing work, ending up in the emergency room or hospital, and 
92 

even dying prematurely on days with dangerous ozone levels at 

government expense. 

Unfortunately, the State of Texas is not helping to protect my 

constituents nor anybody else’s and has been intensely opposed to 

a lower ozone standard. In fact, the chairman of the Texas Commission on Environment Quality, Bryan Shaw, has stated that 

there will be little to no public health benefit from lowering the 

current standard. Was the current standard of 75 parts per billion 

sufficient to protect public health when it was finalized in 2008 is 

one question, and the second question, how has the body of scientific evidence changed since the last time the EPA revised the 

ozone standard, and would it make sense based on the science for 

EPA to retain the current standard until the states have fully implemented, as some have suggested? 

Dr. PAULSON. Ms. Johnson, if the states retain the current standard until it’s fully implemented, people are going to die and people 

are going to be sick. We knew before the current standard was set 

by EPA based on the science that was available prior to that time 

that that standard was inadequate to protect the health of human 

beings in the United States. We now have additional scientific information, both from human epidemiologic studies and other research that shows that a level of 60 is where health protection 

starts. 

Ms. JOHNSON OF TEXAS. Thank you very much. 

Are you likely aware that critics of the Clean Power Plan and 

virtually any other EPA rule often claim that the economy and the 

American consumer will suffer as a result of efforts to make our 

environment cleaner and safer? This ‘‘sky is falling’’ attitude toward protecting the health of Americans runs counter to reality. As 

the economy has tripled in size since the adoption of the Clean Air 

Act in 1970, claims that regulations kills jobs are equally misleading. As a matter of fact, I’ve known it to create jobs. In fact, 

just last year, we heard from the witnesses that wise environmental protection and robust economic development can and should 

go hand in hand. 

That being said, one cost is abundantly clear, and that is the cost 

of American lives, if we do not enact regulations to protect their 

public health. 

Now, can you please expand upon the cost to public health if we 

do not act and implement stronger emission regulations and what 

are the costs to the taxpayers, especially medical costs, if businesses are allowed to continue to pollute? 

Dr. PAULSON. Ms. Johnson, the issues around ozone in particular 

and all of the rest of the air pollutants that come under the Clean 

Power Plan, each and every one of them adversely affects human 

health and therefore cost money, cost money in terms of direct outof-pocket costs for payment of medical expenses or the government 

pays those expenses if it’s not direct out of pocket or business pays 

those expenses in terms of insurance premiums. Businesses also 

pay an expense for these health problems when their workers can’t 

show up or show up sick and can’t do the work that they need to 

do. Businesses also pay for these health problems when children 

are ill because their parents need to stay home with the children, 

need to take their children to a healthcare professional, need to 
93 

take their children to an emergency room, or need to sit by their 

child’s bedside in the hospital. 

One of my colleagues, Dr. Leonardo Trasande from NYU Medical 

School, and a colleague of his, Dr. Lu, concluded that the best estimate of childhood asthma costs in 2008, and recognized that 

they’ve only gone up since then, that could be associated just with 

environmental factors—this is not the total cost of asthma, this is 

the cost attributable to environmental factors—was around $2.2 

billion per year in the United States with a range from about $728 

million to $2.5 billion. 

So by not protecting our people, there is an extensive economic 

burden on businesses and on the country as a whole. 

Ms. JOHNSON OF TEXAS. Thank you very much. My time is expired. 

Chairman SMITH. Thank you, Ms. Johnson. 

And the gentleman from California, Mr. Rohrabacher, is recognized. 

Mr. ROHRABACHER. Years ago, when I was in high school, which 

seems, really, I guess it was in another century, I remember when 

I was in Los Angeles when in high school, and we were not permitted to go out and do strenuous exercises because the pollution 

levels in Los Angeles were so high that perhaps once or twice a 

week they called a pollution emergency. Today, I think it happens 

once or twice a year, so there has been a dramatic reduction in the 

air pollution, at least in southern California, and I take it from the 

testimony that we’ve heard that that’s true throughout the rest of 

the country as well. 

We have to attribute that to the fact that there has been regulation that has been successful, and those of who have a natural inclination against regulation need to be honest about that, and the 

question is, is whether or not we have come to a point or when we 

did come to that point where such regulation actually does not 

clean the air but there are natural sources of pollution when you 

have to want to maintain a certain standard of living for people. 

If we’re going to have civilization, there will be— manufacturing 

will take place. If you do not have manufacturing, people will get 

sick for other reasons other than just the air. 

The question is for you, Dr. Paulson. Has there been a decrease 

in the number of illnesses, air-pollution-related illnesses that has 

been recorded in these last 10, 15 years as the pollution level’s 

gone down? 

Dr. PAULSON. It depends what pollutant you’re looking at and 

what particular health outcome you are looking at, but we do know 

that the pollution levels have come down and we also know that 

the current pollution levels are not healthy, actually still—— 

Mr. ROHRABACHER. Excuse me. You’re not answering my question, please. I’m asking you specifically, because the pollution levels 

have gone down and now do we see as the pollution level’s gone 

down this decrease in the number of diseases related to that pollution? 

Dr. PAULSON. There’s been some leveling off, for example, of people with asthma but there are—— 

Mr. ROHRABACHER. So we have a leveling off and not—there’s 

been this dramatic decrease in the pollution but there’s only been 
94 

a leveling off, so maybe we have reached a point that the pollution 

level is more of a natural level that human beings can relate to. 

Perhaps maybe the other witnesses—— 

Dr. PAULSON. There—— 

Mr. ROHRABACHER. Go right ahead. 

Dr. PAULSON. These levels of pollution are dangerous to human 

beings, Mr. Rohrabacher. These levels of pollution are produced by 

human beings and can be controlled by human beings. 

Mr. ROHRABACHER. Well, there are also, as we know, natural— 

for example, we are called deniers over here if you don’t go along 

with the fact that CO2 is changing our climate, but we know that 

90 percent of the CO2 in the air comes from natural sources and 

not human sources, and at some point you have to relate what 

level of whatever we’re talking about actually relates directly to 

people’s health, and do the other witnesses have any—— 

Dr. PAULSON. Mr. Rohrabacher—— 

Mr. ROHRABACHER. Listen, can I ask the other witnesses to comment on that as well? 

Mr. KOVACS. We did a study using EPA’s own data just to figure 

out that exact question. We asked in each of the studies that the 

EPA was doing in terms of reducing pollution, whether it be ozone 

or mercury or whatever, EPA—let’s use mercury. EPA—the entire 

utility MACT was mercury but only $6 million out of $10 billion 

in EPA’s claimed benefits came from mercury. The rest came from 

particulate matter, and what’s happened is, we’ve taken particulate 

matter down to whether—where it’s 30 percent below where EPA 

says it’s safe and 20 percent below where the World Health Organization says it’s safe. We’re still reducing it, so we’re spending billions of dollars to reduce something that’s already 30 percent below 

what they say is safe. 

Mr. ROHRABACHER. So at some point where if you have a problem 

and at some point you come to a position where it is no longer costeffective to do that, to have that activity, and while we have to 

admit that from the time when I was in high school until now 

when the pollution levels are lower, that maybe that was very costeffective and many of the things that the good doctor is telling us 

about has resulted from that but maybe we now have reached a 

point here it’s so costly that it’s counterproductive, and on our side 

of the aisle at least, we believe that entrepreneurs and manufacturers, when you actually put them in contest with the bureaucracy, 

they usually lose, and bureaucracy—where manufacturers can give 

us good products to use, usually bureaucracy is able to turn pure 

energy into solid waste, and that’s about all. 

Chairman SMITH. Thank you, Mr. Rohrabacher. 

Mr. ROHRABACHER. Thank you, Mr. Chairman. 

Chairman SMITH. The gentlewoman from Maryland, Ms. 

Edwards, is recognized. 

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

you to the witnesses this morning. 

I just want to make sure that we really understand, because I 

think sometimes there are quite overstatements in these hearings, 

and so I just want to clarify from the EPA that the Clean Water 

Rule does not regulate most ditches. In fact, the text of the rule 

says, and I quote, ‘‘The following are not waters of the United 
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States. The following ditches. A. Ditches with ephemeral flow that 

are not relocated tributary or excavated in a tributary. B. Ditches 

with intermittent flow that are not relocated tributary excavated in 

a tributary or drain wetlands. And C. Ditches that do not flow either directly or through another water into a traditional navigable 

water, interstate water, or territorial seas.’’ 

And so let’s not overstate the regulation of so-called ditches. I’ve 

heard that so many times and it is completely inaccurate. 

Furthermore, the rule doesn’t protect any types of waters that 

have not historically been covered by the Clean Water Act. Any 

new requirements for agriculture, in fact, all of the agriculture that 

was exempt before is exempt now under the rule, interfere with or 

change property rights, regulate most ditches, as I said, change 

policy on irrigation or water transfers, address land use, cover 

erosional features such as gullies, rills, and non-wetlands swales, 

and include groundwater, shallow subsurface flow, and tidal 

drains. Those are things that the rule does not do, and so we 

should be careful about those overstatements. 

Mr. Chairman, I know also a number of my colleagues on the 

other side also deny that climate change is happening or at least 

that humans are causing it. We’ve already heard that this morning 

and have adamantly opposed the Obama Administration’s efforts to 

lower the nation’s carbon emissions. Fortunately, according to a recent poll by the Yale Project on Climate Change Communication, 

the majority of Republican voters actually support climate action to 

reduce carbon pollution. Additionally, a majority of moderate Republicans support setting limits on carbon emissions from coal-fired 

power plants. This poll also shows that not all Republican voters 

oppose EPA’s Clean Power Plan. 

And so Mr. Chairman, I’d ask unanimous consent to enter these 

two charts from the Yale Project into the record. 

Chairman SMITH. Without objection, that’ll be made a part of the 

record. 

[The information appears in Appendix II] 

Ms. EDWARDS. Thank you. 

I also want to enter into the record a survey by Hart Research 

Associates that actually says that voters in fact support the Clean 

Water Rule and not just that, but an overwhelming number of voters trust the EPA and the U.S. Army Corps of Engineers to do that 

and not Congress. I think that we should listen to the public. 

Chairman SMITH. Without objection—and by the way, I’m looking 

at the poll that you’re referring to. The wonder is that the answers 

were not—— 

Ms. EDWARDS. Mr. Chairman, that’s—— 

Chairman SMITH. —100 percent, given the way the questions 

were worded. 

Ms. EDWARDS. That’s my time—— 

Chairman SMITH. Who’s opposed to clean water? 

Ms. EDWARDS. Are you entering that into the record? 

Chairman SMITH. It will be made—— 

[The information appears in Appendix II] 

Ms. EDWARDS. And I’d ask for the remainder of my time to be 

added back to the clock. 

Chairman SMITH. I’ll give you ten more seconds. 
96 

Ms. EDWARDS. Thank you. 

Mr. Chairman, I’d also like to add into the record, as we’ve seen 

this morning again, that our industry representatives here make 

the argument that the cost of complying with regulations will ‘‘kill 

the economy and jobs.’’ But this argument has been proven false 

over and over again. Again, I have a facts sheet from the Pew 

Charitable Trust describing industry’s long history of overestimating the cost of regulations. According to Pew, compliance costs 

have been less and benefits greater than industry predictions and 

regulation typically poses little challenge to economic competitiveness. The fact sheet goes on to outline a number of very specific 

examples of this pattern of the overexaggeration from acid rain and 

airbags to seat belts and catalytic converters. 

For example, chemical production plants predicted that control- ling benzene emissions would cost $350,000 per plant. But the 

chemical plants ended up actually developing a process that substituted other chemicals for benzene and virtually eliminated control costs. In this instance, as in a number of instances, regulation 

actually drove the kind of innovation, Mr. Chairman, that you 

pointed to. 

I’d ask unanimous consent to enter these facts sheets from the 

Pew Charitable Trust into the record. 

Chairman SMITH. Without objection. 

[The information appears in Appendix II] 

Ms. EDWARDS. Thank you, Mr. Chairman. 

I just want to finish by saying we’ve had so many of these hearings about regulation, and I would suggest that we’d allow the rule 

to go into effect and we don’t have any predictions at all about 

what the outcome will be if they are challenged in court, but 

after—especially with the Clean Water Rule. After thousands and 

thousands of comments that have been reviewed, changes that 

were made from the rule on its introduction to the final proposed 

rule, hundreds of witnesses testifying, it’s time that we move after 

a decade and a half of twiddling around and not knowing what to 

do and what the rules are to a point where we have some certainty 

that industry has certainty, that the public has certainty and that 

all of us get the clean air and the clean water that we deserve. 

Thank you, and I yield. 

Chairman SMITH. Thank you, Ms. Edwards. 

The gentleman from California, Mr. Knight, is recognized for 

questions. 

Mr. KNIGHT. Thank you, Mr. Chair. 

I would go on a line of questioning of kind of what we’ve done 

in California. I think that my statement would be that California 

has probably gone about this as stringent as any state in the union 

as far as our clean air, clean water, clean energy, clean everything 

that we have done, not just of course on EPA standards because 

everyone has to go along with that but what the legislature has 

done in California to go about this. 

So I guess my questions would be, and we can start with Mr. 

Kerr, that we have seen a loss in the last ten years of about 80,000 

manufacturing jobs in California due in part to what we have done 

in California, not just by our regulations but what we have mandated on business and how they can interact with the air and the 
97 

water in California. Do you think that—and I think Mr. Rohrabacher was going down the right line of questioning. Do you think 

we have hit a line in the road where if we go too far, then we’re 

not going to just continue to hemorrhage jobs but America and 

many parts of America will be so uncompetitive that businesses’ 

only choice will be to look elsewhere. 

Mr. KERR. Thank you, Congressman. With regard to the question, I have to say I’m not an air pollution consultant so I’ll just 

yield my time to the others here who could speak to that. 

Mr. KOVACS. Congressman, I think you’re going to be surprised 

with my answer. I think we don’t know, and the reason why I say 

that is part of—when Congress first legislated these acts in the 

1970s, you asked for very specific information. There was a debate 

on the Floor that was really fascinating, and one of the members— 

one of the Democrats got up and said, you know, I’m tired of this 

issue being fought in this way—this is the end of the world or this 

is going to protect the world. They specifically said we know we’re 

going to impact jobs, we know that, but Congress has a major role 

and we need information to come back to us from the Agency. You 

never got that. 

And in the 1980s and the 1990s, Congress again said we’re going 

to pass the Information Quality Act, and that said is, the Agency 

has to take information from the public and the public has a right 

to challenge the Agency’s information. The agencies, not just EPA, 

have refused to do that. You’ve asked for input under the unfunded 

mandates and the impact on states. States implement 92 percent 

of all the environmental laws, and EPA does not look at unfunded 

mandates. It generally dismisses and says there’s no impact on the 

states. Even for ozone, EPA says there’s no impact on the states. 

There’s no unfunded mandate for a rule that they say is going to 

cost approximately $90 billion a year. 

So you don’t know, and one of the things that’s really needed in 

this issue is, we fought over the issue for too long. We need the information on data quality to work. We need the information on 

321(a) in the Clean Air Act to tell you how it’s impacted jobs because regulations aren’t just something that happens to the whole 

country. Regulations are something that happens to an industry. 

So if an industry is hit and it’s in Wisconsin or Idaho or wherever, 

that industry and that community’s affected. There may be jobs 

created elsewhere but you still have an industry and a community 

that’s been hurt, and you don’t have that information and EPA has 

never given it to you. 

Mr. KNIGHT. Thank you very much. 

Mr. EISENBERG. So I’ll try to give you a very simple answer specifically for manufacturing. You’re absolutely right in terms of 

manufacturers. We use about a third of the energy in this country. 

We are extremely energy-intensive. For some manufacturers, it is 

our single largest cost. There is a reason why a lot of the new manufacturing that is coming online is going to states where energy is 

cheap. If you are a state that does not have cheap energy, that is 

a very big difference maker for a lot of folks in industries that are 

highly energy intensive. 
98 

That is not the driver; it is a driver of why manufacturers go into 

places that may not be California, which absolutely has extraordinarily high energy costs. 

Dr. PAULSON. Mr. Knight, we know very well that air pollution 

is not confined by political borders. We know this very well in the 

United States, but it is true internationally as well, and we can 

only do what we can do in the United States to protect our own 

citizens, and Congress gave the Environmental Protection Agency 

a responsibility to protect the health of human beings in our country, and that is what they are attempting to do by lowering these 

pollutant limits. 

Mr. KNIGHT. Absolutely, Dr. Paulson, and I agree. I just think 

that we possibly—and I wouldn’t say ‘‘possibly.’’ I would say we 

have achieved a level that is very healthy in this country, and 

going further, we will be hurting this country and its ability to economically be a factor. 

And I will say what we have done in California has worked very 

well. We have six of the dirtiest ten cities in this country. 

Thank you, Mr. Chair. 

Chairman SMITH. Thank you, Mr. Knight. 

The gentlewoman from Oregon, Ms. Bonamici, is recognized for 

questions. 

Ms. BONAMICI. Thank you very much, Mr. Chairman, and I’m 

going to follow up on the discussion we were just having, and Mr. 

Chairman, you mentioned this in your opening statement too about 

diminishing the competitiveness of U.S. businesses, and we hear 

these claims that the Clean Power Plan or other environmental 

laws are going to kill jobs, hurt the economy. There’s a suggestion 

that our businesses will go overseas. 

I just read this morning that Ikea just pledged a billion euros, which is $1.13 billion, to help slow climate change through renewable energy and steps to help poor nations cope with climate 

change. They said this is good for customers, good for the climate, 

and good for their company. So they found that customers actually 

value environmental responsibility, and I suggest that we look at 

that and what our customers value. 

And I also want to talk about how the numbers speak for themselves. The Union of Concerned Scientists just released an analysis 

that shows that most states are already making significant 

progress toward cutting carbon emissions from power plants, and 

according to that analysis, 31 states including my State of Oregon 

are already more than halfway toward meeting the 2020 benchmarks set out by the EPA under the Clean Power Plan. All but 

four states have already made decisions that will help cut their 

power plant emissions. Fourteen states including California, Kentucky, Ohio and New York are already ahead of the emission rate 

reduction trajectory because of current carbon-cutting decisions and 

actions. 

I find this very encouraging and again highlights how the environmental regulations can bring about positive results. Mr. Chairman, I ask unanimous consent to enter this analysis into the 

record. 

Chairman SMITH. Without objection. 

[The information appears in Appendix II] 
99 

Ms. BONAMICI. Thank you. 

And Mr. Eisenberg, I was glad to hear you say that the National 

Association of Manufacturers believes in the mission of the EPA. 

You say that plants have the best available pollution control technologies, and as we were just discussing, history shows that regulation drives innovation. Without the regulation, those who are working on new technologies don’t have a market, but with the regulation, they do, and we have found that new technologies are developed to meet the needs of regulation. 

So I want to ask, Dr. Paulson, you know, many are arguing that 

it’s not just worth it, that costs are too high, and as you’ve noted, 

there’s evidence showing that on balance, jobs are created, the 

economy expands following the passage of major environmental reforms. For example, in a report to Congress on the costs and benefits of federal regulations, OMB estimated that major rules promulgated by the EPA in the decade between 2003 and 2013 had benefits between $165 billion to $850 billion compared to costs of $38 

to $46 billion. That is a pretty significant return on investment. 

So Dr. Paulson, alternatively, we’ve talked about the costs of ignoring our changing climate and the public health risks related to 

increases in global temperatures, and I note that the death toll in 

India is now up to 2,500 people. Tragic over there. 

Climate change also has the potential to exacerbate existing 

health conditions as you’ve discussed such as asthma. Now, we’ve 

had hearings in this Committee before where we’ve talked about 

how the EPA is not allowed to consider the costs when they, for 

example, set the standard under the Clean Air Act, the ozone 

standard. That’s sort of compared to the idea that you’re going to 

make a medical diagnosis depending on how much the treatment’s 

going to cost. 

So can you comment on the importance of separating the costs 

associated with attaining an ozone standard from the assessment 

of what level is appropriate to protect public health? 

Dr. PAULSON. Health needs to be a priority, and as a physician, 

I am sworn and I took an oath long ago and still very much believe 

that oath I took to protect the health of the individuals that I work 

with, and for me, that’s the kids but it’s also their families. I cannot ethically take the consideration of cost into account. I certainly 

work with the families to try and make sure that they have or can 

access the financial resources for whatever it is that I or my colleagues may be recommending, but my responsibility is to do what 

is in the best interest of children. 

Ms. BONAMICI. Thank you. I’m going to try to get one more quick 

question in to you, Dr. Paulson. 

There was a study by Syracuse and Harvard University about 

the major co-pollutants that could be reduced. So can you talk 

about some of the health co-benefits that are likely to result from 

these kinds of carbon regulations? 

Dr. PAULSON. Yes. I’m a pediatrician, but let me mention something particular to adults, and that relates to particulate pollution. 

We know that when particle levels go up in the air, the next day 

more people are going to be admitted to the hospital with heart attack and strokes and die from those heart attacks and strokes as 
100 

a result of that exposure to the particulates. So that’s just one example. 

Another example is that we know that children grow up in areas 

of the country that have higher air pollution when they are finished growing, 18, 20, their lungs are smaller than kids who grow 

up in a less polluted area, and that raises the concern of, are these 

kids then set up for what we think of as adult-onset pulmonary disease but actually it goes back to the pollution that they were exposed to as children. 

Ms. BONAMICI. Thank you very much. 

I see my time is expired. I yield back. Thank you, Mr. Chairman. 

Chairman SMITH. Thank you, Ms. Bonamici. 

And I’d like unanimous consent to put in the record a New York 

Times article just a few days ago that reveals that the EPA solicited positive comments from outside organizations, perhaps in violation of lobbying laws. Without objection. 

[The information appears Appendix II] 

Chairman SMITH. And the gentleman from Texas, Mr. Babin, is 

recognized. 

Mr. BABIN. Yes, sir. Thank you very much, Mr. Chairman, and 

thank you to all you witnesses for being here. 

The EPA Administrator, Ms. McCarthy, Gina McCarthy, wrote 

an op-ed recently saying that the Agency’s air standards attract 

new business, new investment and new jobs. I don’t think that Administrator McCarthy is living in the same world as the rest of us. 

I represent the 36th District in the State of Texas, and we have 

one of the largest numbers of petrochemical plants and refineries 

in the country. Most of my district is not in attainment with these 

new regulations. I will also add that neither is Yellowstone National Park in attainment with these new regulations. 

There is no concrete evidence to support the lower standard for 

ozone that the EPA is calling for, not to mention the cost that is 

associated with it, given the strenuous economic times. I would 

now ask for a slid be placed on the screen to describe my district, 

the State of Texas, District 36. We have the largest manufacturing 

industry in the State of Texas in the chemical and refining industry. We directly employ or indirectly employ over 10,000 people 

down there in this portion of my district, and we pay $934 million 

in wages in this district with an average wage of nearly $100,000. 

These proposed new rules promise to be the most expensive regulations in the history of the United States, likely costing us thousands of jobs and prolonging a recession. This is bureaucratic overreach in the extreme. 

I would ask Mr. Kovacs and Mr. Eisenberg whether this is worth 

putting all of this at risk with these new regulations. Mr. Kovacs? 

Mr. KOVACS. Well, I think in terms of ozone, we’ve really had 

probably 30 years of what you’re describing. I mean, look, going 

back to the early 1980s, many sectors of the economy—steel, foundries, carpets, furniture—you pick it, because nonattainment areas 

could not get the credits to stay operating, were forced either, one, 

to other areas of the country or two, they were forced overseas. And 

so that’s been going on for quite some time. 

Again, I come back to the fact that these are issues that really 

should be resolved, and let me just give you one example as to how 
101 

hard it is to resolve it. We’ve talked a lot today about science and 

transparency, and we’ve challenged EPA for years, but in 1999, 

when the Pope and Daugherty study was first issued, I wrote a 

FOIA to EPA and was denied everything. So all the scientific basis 

for a lot of what they’re talking about in PM and ozone has been 

denied to the public, and the only people who can have access to 

it are EPA and their researchers. Chairman Smith issued a subpoena last year and couldn’t get the information. 

One of the things that we need to have in this country is complete and total transparency. The Agency needs to be able to put 

its models, its science in the record. It needs to implement the environmental—or the Informational Quality Act. They need to accept 

information from the public and they need to sit down and talk 

about it. These—if the data’s there, then they shouldn’t be afraid 

of it. If it’s not there then they should be afraid of it. 

Mr. BABIN. Which is what the Secret Science Act is all about 

we’re proposing. 

Mr. Eisenberg. 

Mr. EISENBERG. Thank you. To your question of whether or not 

we believe that this is the right thing for manufacturing, no, we 

don’t need them to change the ozone standard if you want to have 

a manufacturing sector. I mean, that is the simple and straight answer, and this is not about health for us. We are getting the benefits of continued reductions between the existing ozone standard 

and the three dozen other regulations that reduce NOX emissions. 

We’re going to be reducing ozone precursors by 36 percent over the 

next decade, so we’re going to get there. We’re going to actually be 

doing what we need to do. The only difference between that and 

getting—and moving the chains now is that you impose a significant amount of struggle for manufacturers to try to expand or build 

things to get basically the same result. 

So we’re going to get there anyway. We can just get there without all of the pain that we would have to face if you don’t move 

the chains on us. 

Mr. BABIN. Thank you very much, and I yield back my time, Mr. 

Chairman. Thank you. 

Chairman SMITH. Thank you, Mr. Beyer—thank you, Mr. Babin. 

Mr. Beyer, the gentleman from Virginia, is recognized. 

Mr. BEYER. Thank you, Mr. Chairman. 

Mr. Chairman, Mr. Eisenberg and Mr. Kovacs both cited a study 

prepared on behalf of NAM in their written testimonies, and this 

study estimates the compliance costs associated with an ozone 

standard of 65 parts per billion. 

I have an article from Bloomberg News that discusses NAM’s 

study and a number of groups criticize the study and its methodology, saying that the study doesn’t include an estimate of the anticipated benefits of the 65 standard, it overestimates compliance 

costs, and that it makes ‘‘unrealistic assumptions.’’ For example, 

the use of the Cash for Clunkers program, with which I’m very familiar, is used as the basis for estimating the cost of unknown pollution controls. This is described as ‘‘insane and unmoored from 

economic reality.’’ 

Also, it’s important to understand well what the new standards 

might cost and the savings that might generate. Please allow me 
102 

to point out that the 2001 Supreme Court, the same court that put 

George W. Bush in the White House in Bush v. Gore ruled that the 

Clean Air Act prohibits the EPA from considering the cost of compliance with setting National Ambient Air Quality Standards. 

So Mr. Chairman, I ask unanimous consent to have this article 

entered into the record. 

Chairman SMITH. Without objection. 

[The information appears Appendix II] 

Mr. BEYER. Thank you. 

Dr. Paulson, thank you for being here. The Committee received 

testimony from Dr. Mary Rice on the health impacts of ozone, and 

she indicated that the research has only grown stronger since the 

last time the EPA considered revising the current standard, and 

one area she highlighted was the new evidence between higher 

ozone levels and increased mortality. 

I grew up here in Washington, DC. There will be a number of 

times this coming summer when every TV station will be telling us 

all to stay inside because of high ozone levels. As I understand it, 

the Integrated Science Assessment for Ozone states that ‘‘The current body of evidence indicates there’s a likely causal relationship 

between short-term exposures to ozone and total mortality.’’ Can 

you talk about this evidence? 

Dr. PAULSON. Yes. Ozone causes inflammation, irritation, particularly in the lungs. I think an analogy that everybody I hope can 

understand is sunburn. Sunburn causes inflammation and irritation of the skin, and likewise, ozone does that but it does that in 

the breathing tubes in the lungs, and acutely that—if it’s a onetime thing, if it’s a few-times thing, that heals up and goes away 

just like a sunburn heals up and goes away. But on a chronic basis, 

that leads to permanent changes in the breathing tubes in the lung 

so that they no longer function the way they need to function to 

remove other pollutants from the lung. They become scarred. They 

don’t transfer oxygen and carbon dioxide the way they should. So 

overall, pulmonary function declines and that impacts on a whole 

range of adult health issues. 

So I think that we need to bring the ozone level down. Levels 

below 60 are much safer than levels above 60, and we should have 

a standard of 60 in the United States. 

Mr. BEYER. Thank you, Dr. Paulson, very much. 

Mr. Kovacs, thank you for being here representing the Chamber. 

I was President of the Falls Church Chamber, on the board of Fairfax Chamber. My wife used to work for you guys at the U.S. Chamber. 

But I’m having trouble reconciling a number of facts. On the one 

hand, EPA’s promulgated regulations in clean air, clean water, 

greenhouse gases, and all allegedly are job killers and profit killers. 

On the other hand, corporate profits are at an all-time high, the 

Dow is over 18,000 last night, 62 straight months of job creation, 

the fastest and best recovery of any Western economy since the 

Great Recession. In fact, Governor McCall from Virginia has now 

created private-sector jobs, not him but our economy in Virginia 

has created more private-sector jobs in these first 17 months than 

any government in Virginia history, any governor. 
103 

In my business when we receive a new regulation, we adapt and 

we figure out the most effective way to implement and respond to 

the new rule and then we figure out how to make money off of it. 

To Mr. Knight, who I guess is gone, my California dealer friends 

are the most profitable dealers in the country despite their regulations. I would love to be a California car dealer. 

My question is, don’t you give too little credit to the business 

community, to their imagination, to their operational excellence? 

Can’t we have business and job success and better health at the 

same time? 

Mr. KOVACS. Well, thank you for the question. First of all, I give 

tremendous credit to the business community. They are extraordinarily innovative, and I am absolutely thrilled that your wife 

worked with the Chamber and you were with the Falls Church 

Chamber. 

Now, having said that, we at the Chamber, we don’t really— 

when we talk about job impact and regulatory impact, we talk 

about a system that the United States constantly creates jobs and 

we’re constantly creating more jobs and hope we will even do better 

in the future, but when a regulation comes out, it actually affects 

specific industries. When ozone comes out, for example, it’s going 

to—initially we have the history of it coming out and literally 

knocking out, let’s just say California or anyplace else—chemical 

manufacturing in certain areas, oil manufacturing, paint and coatings. And what happens is, those people truly are out of jobs, and 

when you look at the fact that if you’re over 55 and you’re out of 

a job, your chances are only about 25 percent of having a job the 

rest of your life, and what we’re trying to impress upon them is, 

yes, it’s easy to say wow, we have a lot of great technology companies and they’re creating a lot of jobs. What’s happening is, the regulations are putting people and communities out of business, and 

that should be just as much of a concern because the health impacts when a community goes out of business is drug abuse, heart 

attacks, hypertension, and all we’re trying to say is, let’s get the 

facts on the table and let’s have an honest discussion. Let’s put the 

health-related effects out, let’s put the job-related effects out. This 

should not be a problem. This should be a problem that Congress 

can solve. This shouldn’t be a problem we fight over. That’s been 

my testimony. 

Chairman SMITH. Thank you, Mr. Beyer, and the gentleman from 

Ohio, Mr. Johnson, is recognized. 

Mr. JOHNSON OF OHIO. Thank you, Mr. Chairman. 

You know, the discussion that we’re having today about the 

EPA’s overreach, it’s a continuing dialog, and it’s disturbing. 

I went to Europe just a few weeks ago and talked with many of 

our friends and allies in Europe about energy policy, and I learned 

something there that I wasn’t expecting to learn. Over the last 20 

years, they have been advancing beyond the United States in shutting down coal-fired power and investing in renewable energies and 

those kinds of things, reducing the amount of coal that they had 

in their energy portfolio. When we talked energy policy with many 

of our friends there, we learned that a lot of those countries, some 

of those countries are increasing their mix of coal-fired power in 

their energy profiles, and when we asked them why, they said our 
104 

ratepayers are simply unwilling to bear the burden of the high cost 

of providing energy to their homes and to their businesses. Europe 

has learned this lesson, that coal-fired power is still the most reliable, affordable energy on the planet. 

Do we need to keep our air clean? Absolutely we do. Do we need 

to keep our water clean? Absolutely we do. Dr. Paulson, you made 

some impassioned comments about the health implications. Not everybody, though, Dr. Paulson, agrees with some of the statistics 

that you said. For example, today the average life expectancy in 

the United States is 80 years, one of the highest in the world. 

There’s a New York Times article that came out October 8, 2014, 

that said a child born in America today will live longer than at any 

other time in history, and these are scientists saying this. That report came from the Centers for Disease Control. 

In the USA Today on April 9, 2015, it cites an EPA report says 

the EPA reports that are our air quality has substantially improved, aggregate emissions of common pollutants have decreased 

62 percent between 1980 and 2015. It goes on to say it is unlikely 

that cleaner air is causing an increase in asthma. 

So, you know, what I have to wrestle with, and I think what the 

American people are wrestling with is, when is enough enough? 

When does it become—when does the scale tip towards irresponsibility to continue trying to cripple the American economy and 

eliminate opportunities for millions of Americans just to move the 

CO2 emission needle a smidgen? 

Folks, I submit that we have reached that breaking point. We’ve 

passed that breaking point. There are serious legal questions to the 

EPA’s jurisdiction and their legal basis for their Clean Power Plan, 

and I think it’s something that’s got to be seriously considered by 

this body and by the American people. 

Let me get to some specific questions. Mr. Kovacs and Mr. 

Eisenberg, by the year 2030, the EPA believes their proposed Clean 

Power Plan will allow the United States to reduce carbon emissions 

from the power sector by 30 percent or below the 2005 levels, a 

roughly 17 percent cut from 2013 levels. 

To achieve these reductions, EPA calculated a specific emissions 

rate for each state by totaling the CO2 emissions produced by each 

State’s electricity-generating units and dividing it from the total 

amount of electricity generated by the EGUs. Then the EPA proposed emissions reduction targets based on the carbon intensity of 

each state’s electricity sector. 

My question to you gentlemen, do you believe the proposed performance standards are achievable? Mr. Kovacs? 

Mr. KOVACS. I think the easiest way to address your question is 

to start off with one of your conclusions where ‘‘enough is enough,’’ 

and I think at that point in time, I don’t think you can get to dealing with the present regulatory system without a change in the Administrative Procedure Act, and Chairman Smith is very familiar 

with this. But right now you can’t get the kind of data into the system that you need. You can’t get the Agency to participate and you 

can’t get the Agency to look and talk to the public the way it needs 

to. Until you can get the kind of early-on input where people say 

here’s what we think and the Agency says here’s what we have, 

and you begin the discussion 90 days before rule, and then you 
105 

begin to have the Information Quality Act put into the system 

where people can actually say oh, this is the data. 

You have—Congress has to find some way to get the process to 

work. There is nothing with the law that court decisions have come 

down on deference and with the way the agencies ignore Congress. 

Congress has to make a fundamental change in how rules are 

made. 

And the last point, because I don’t want to just filibuster, but the 

last point is, there are 4,000 rules coming out every year. Three 

thousand seven hundred really work. Ninety-five percent of the 

system works. It’s — we’re talking two or three or four major rules 

a year, and most of those rules come out of EPA. So when you look 

at the whole regulatory system, you don’t need to throw it all away, 

but for those major rules that are over a billion dollars that fundamentally change society, you have to have a new way of approaching it. 

Mr. JOHNSON OF OHIO. My time’s expired, but Mr. Eisenberg, 

would you want to respond to that? 

Mr. EISENBERG. Sure. I mean, certainly in the case of ozone, 

these rules are not achievable, and it’s actually a good opportunity 

to explain what our studies had. Our study actually had the same 

methodology as EPA’s study. I mean, it was exactly the same. As 

far as known controls, we used the same stuff, same numbers because we believed them. Where we differ with EPA is on the 65 

percent of controls that you need to comply that are unknown controls. You don’t have to—it’s not—you still have to do it. We just 

had to figure out how to do it at that point. I would love to be able 

to tell you we can innovate, and maybe we will, and if we don’t—— 

Chairman SMITH. Mr. Eisenberg, thank you, and Mr. Johnson as 

well. 

The gentleman from New York, Mr. Tonko, is recognized. 

Mr. TONKO. Thank you, Mr. Chair, and thank you to our witnesses. 

Mr. Chair, in his testimony, Mr. Eisenberg cites a study, a study 

released by the National Association of Manufacturers last September, I believe. It’s titled ‘‘The Cost of Federal Regulation to the 

United States Economy, Manufacturing and Small Business.’’ According to the study, regulations cost the economy $2 trillion in 

2012. Now, fortunately, a review of that study was done. The results of that study indicate clearly that that number is not accurate 

and that number is based on a flawed analysis. 

I have here in front of me a review of the National Association 

of Manufacturers study by Professor Kolstad from Stanford University. Professor Kolstad in this study was asked to grade it and gave 

it a C minus. In his review of the study, he states that the—and 

I quote—‘‘study reads as an advocacy document. The authors focus 

only on the costs of regulation, ignoring the benefits. The authors 

also don’t follow the standard in academic practice of discussing 

uncertainties in their analyses and their results are highly uncertain. All of these factors make it difficult to determine the quality 

of the responses and lead to the conclusions that the results are 

unreliable.’’ 
106 

Mr. chair, I ask that—by unanimous consent that the review of 

the National Association of Manufacturers’ study be entered into 

the record. 

Chairman SMITH. Without objection. 

[The information appears Appendix II] 

Mr. TONKO. Dr. Paulson, as you are well aware, beyond the economic costs associated with climate change, there are very serious 

public health risks related to increases in the global temperature, 

for example, longer heat waves, changes in water and air quality, 

and foodborne and insectborne disease. Climate change also has 

the potential to exacerbate existing health conditions such as asthma and adversely impact vulnerable populations like children that 

you serve and the elderly. 

What kinds of ongoing health risks are expected if the current 

climate trends continue, and do these risks, in your opinion, vary 

by region of our country? 

Dr. PAULSON. Mr. Tonko, yes, they do vary by region. We are already seeing significant impacts in terms of injuries and deaths 

among native populations in Alaska because of changes in the ice 

and other factors there. We will and are seeing in the rest of the 

country—we will see more problems with asthma, as you have 

mentioned. We have seen over the last 5 to ten years a change in 

the range, the number of counties and states that—where Lyme 

disease is a problem and as the climate continues to change, we 

will see continued changes in that disease and other diseases such 

as we may begin to see indigenous malaria here in the United 

States. We will start to have problems from sea-level rise. We are— 

I’m a resident of Virginia and I live in Mr. Beyer’s district, so we 

don’t quite see that so much in Alexandria but certainly in the Norfolk region, the Hampton Roads region. We are seeing that, and 

that will continue and impact on other parts of the country with 

sea-level rise. We lose quality of water for agriculture and for 

drinking. So there’s going to be a vast array of impacts, it will vary 

by part of the country, and it will disproportionately—and these 

impacts will disproportionately fall on children and other vulnerable populations. 

Mr. TONKO. Right, and we’ve also seen some of the proposals, the 

expected impacts on coastal areas of New York State. 

How can implementing the Clean Power Plan help states address 

these public health impacts of climate change? 

Dr. PAULSON. First and foremost, all reductions in CO2 production will slow the rate of temperature change associated with excess CO2, and if we can get CO2 levels down in the long run, while 

some of these issues will continue to occur for a while, we can stop 

the progress of climate change in the long run. 

I think that again in the long run, we need to be very concerned 

about food availability and quality of food that’s going to be impacted from higher temperatures. People are literally—and we’re 

seeing this unfortunately now in India, people are literally not 

going to be able to go out and plant and harvest when the temperatures are extremely high. The plants will not grow and produce the 

bountiful resources that we require and derive from them. The 

quality of the food may be decreased. So there are a lot of impacts 

that we’re going to have to deal with. 
107 

Mr. TONKO. I thank you, and with that, Mr. Chair, I yield back. 

Chairman SMITH. Thank you, Mr. Tonko, and the gentleman 

from Texas, Mr. Neugebauer, is recognized—oh, I’m sorry. I 

skipped over Mr. Loudermilk from Georgia. 

Mr. LOUDERMILK. Thank you, Mr. Chairman. 

One of the issues that we run into I’ve found out in my brief time 

here in Congress is getting down to the true facts, and part of getting the true facts in science is that getting away from presenting 

facts that justify an end but making your end justified off the facts 

that are before you. 

I live ten miles from one of the largest coal-fired plants in the 

nation, and Mr. Chairman, to your point earlier, this plant, you 

really can’t see the smoke when it comes out, but what comes out 

is white but it’s steam that’s used to cool that. 

But Dr. Paulson, you brought up something that was concerning 

to me because I live ten miles from one of the largest coal-fired 

plants in the nation. My one-year-old granddaughter lives about 11 

miles from it. And you brought up in your statement, you said that 

outdoor air pollution is linked to respiratory problems in children 

including decreased lung function, coughing, wheezing, more frequent respiratory illnesses and so on, and that is true. A quick 

check—you are absolutely right. It is linked to air pollution. But 

Dr. Paulson, can you tell me what is the greatest contributing factor to asthma worldwide according to the World Health Organization? 

Dr. PAULSON. I don’t know exactly what the World Health Organization has said is the greatest contributing factor. Genetics is 

certainly an issue. Smoking is clearly issue. That’s another form 

of—— 

Mr. LOUDERMILK. Do you know where air pollution ranks? 

Dr. PAULSON. No, sir, I don’t. 

Mr. LOUDERMILK. Last. The greatest contributor to asthma—and 

I was surprised to find out that asthma is one of the top causes 

of deaths in children worldwide. I was very shocked. The top seven 

contributors are all related to poor sanitary conditions in the home 

which are linked to poverty. It is greatest in the most impoverished 

nations in the world. Number seven is outdoor allergens, which if 

somebody could do something about pollen in Georgia, I’d really appreciate it, but the only thing you can do is cut down trees, and 

we’ve been stopped from doing that as well. Tobacco smoke is number eight. Number nine is chemical irritants in the workplace, 

which again goes back to industrialized nations that don’t have the 

regulations that we have in place. Number ten and last is air pollution. 

I live, as I said, ten miles from the largest coal-fired plant in the 

nation, but it happens to be the cleanest, one of the cleanest coalfired plants in the nation. Georgia Power, who runs that plant, has 

spent twice as much money in cleaning up the emissions from that 

plant as it cost to build the plant when it was first constructed. 

But a few years ago, because of this Administration’s regulations, 

Georgia Power has to shut down three coal-fired plants, which cost 

700 jobs. Now, I don’t have anything to enter into the record, Mr. 

Chairman, other than what I’ve seen with my own eyes. If you’ve 

ever gone into an area, especially in our part of Georgia, to where 
108 

a plant has shut down and a lot of cases it’s because they couldn’t 

afford to operate because of the regulatory environment in this nation, you go into those areas where those workers, which are usually factory workers who are skilled in that particular job, have no 

other job to go to. When you go in those towns, you start seeing 

these type of issues. You see poor sanitary conditions because 

they’re unemployed or they’re underemployed or they have no job 

at all. They’re doing what they can to scrape by, and we start seeing an increase in poverty. 

So my question is, are we throwing out the baby with the 

bathwater because we’re focusing on what is the least contributing 

factor toward a disease which would result in a greater contributing factor as more Americans lose their jobs, as more jobs go 

overseas? In fact, the President signed an agreement with China 

that they would promise to start limiting their emissions by 2030 

while we’re lowering our emissions pushing more jobs overseas. 

So my question to the panel is, am I off base? Are we going to 

lose more jobs in this nation because of the direction we’re going, 

which will result in a problem greater than what we have right 

now? Mr. Eisenberg, you’re in the manufacturing arena, and that’s 

where we’ve seen the greatest impact? 

Mr. EISENBERG. Look, understand what I’m saying today. In almost every case, we’re comfortable with regulation but we have 

regulations and those regulations are working, and it’s really about 

figuring out where that sweet spot is between having a regulation 

that protects the environment and health and making sure that we 

can actually do our jobs. In the cases that we’ve cited today, they’ve 

gone a step too far. We’re asking them to take a step back towards 

normalcy. 

Mr. LOUDERMILK. With that, Mr. Chairman, I see I’m out of time. 

I would love to continue this on but I’ll yield back. 

Chairman SMITH. Thank you, Mr. Loudermilk. I appreciate that. 

The gentleman from Texas, Mr. Neugebauer, is recognized for 

questions. 

Mr. NEUGEBAUER. Thank you, Mr. Chairman. 

Mr. Kerr, you know, since 1986, EPA and the Corps has only had 

jurisdiction over the wetlands adjacent to other jurisdictional 

waters. Can you explain in detail the rule’s new concept of adjacent 

waters? 

Mr. KERR. Yes. 

Mr. NEUGEBAUER. I’m over here in the cheap seats. 

Mr. KERR. Thank you, Congressman. Yeah, prior to the new rule, 

through court precedent, the Corps regulated wetlands that were 

adjacent to waters that themselves were not wetlands. What does 

that mean? If you go to a major river and there’s a large wetland 

next to the river, there’s a dike built through that wetland, the 

wetland on the other side of the dike, the landward side was regulated. But if there was a small pond that had been abandoned because the farmer stopped working a certain area or he moved hogs 

off of that area and that pond was in a field that became wooded 

and he didn’t use it for more than five years, the Corps would typically consider that an isolated water, and that’s the way it’s been 

working up until May 27th with the new rule. Under the new rule, 
109 

that pond can now be regulated as an adjacent water so it’s a 

change in how they approach it. 

The other thing is that there’s a site that I worked on with a development client where there were several small isolated wetlands. 

The Corps of Engineers back in the late 1990s confirmed them to 

be isolated wetlands, and the Commonwealth of Virginia regulated 

those wetlands. Under today’s rule, those wetlands would also be 

considered adjacent and under the jurisdiction of the federal government. So those are two ways that it’s changed. 

Mr. NEUGEBAUER. So to your knowledge, is there legal precedent 

for the agencies to establish jurisdiction over these waters? 

Mr. KERR. The short answer is no. There is no court decision that 

required the Corps of Engineers to change how adjacency was determined, to my knowledge, and I’ve been doing it for 26 years. 

Mr. NEUGEBAUER. So as a wetlands delineator, or can you describe how the new adjacent-waters definitions including the neighboring definition will change the way you make your jurisdictional 

determinations? 

Mr. KERR. Yeah, those two examples are two clear examples. The 

third is the portion, much like manufacturers—I mean, there are 

certain parts of this rule that are understandable, they’re relatively 

reasonable. The one issue with adjacency that gives me greatest 

concern is the criteria that says any water within 1,500 feet of a 

traditionally navigable water is by definition, by rule adjacent and 

therefore jurisdictional under the Clean Water Act. In the coastal 

areas—and I come from the coastal plain of Virginia—but this goes 

from Texas to, you know, the coast of New York, you are now extending this measuring stick out 1,500 feet, and anything that falls 

within that—and you measure 1,500 feet from the innermost limits 

of tidal waters, tidal creeks, tidal bays miles inland from the ocean, 

you extent this measuring stick 1,500 feet, and anything within 

that zone is jurisdictional as an adjacent water by rule. That’s a 

dramatic change. 

Mr. NEUGEBAUER. I want to get to talking about ditches, and I 

think one of the things that my agriculture community thinks, has 

concerns that by—those people that believe that EPA has exempted 

some of the ditches from their jurisdiction, or EPA is telling, I 

guess, the agriculture community that. Do you believe that’s in fact 

true? 

Mr. KERR. If I could give you just a little context for my opinion 

on that, our firm just recently completed a delineation that involved over 56,000 linear feet of ditches. So just around ten miles 

of ditches. We had to walk them all, and we asserted they were 

non-jurisdictional. It took about a year, I think, to get the confirmation that in fact they were non-jurisdictional. Under today’s 

rule, I can tell you, I can walk you to these ditches that are now 

jurisdictional. As has been said, there are two criteria about 

ditches that I think are fine, and they’re the first two. The last one 

to me is the recapture provision, and in fact, I went through the 

entire preamble, 200 pages. I’ve read what I can find on it, and 

there’s not a specific mention of how they arrived at the third criteria, and the issue with it is, that it says ditches that don’t flow 

through another water are exempt. Ditches virtually by definition 

flow into a water of the United States, and we have an example 
110 

where the water in the United States was a channelized stream, 

was eight feet below grade. There are some ditches three feet below 

grade that, you know, kind of like a waterfall discharge into this 

creek. The water never—you know, this ditch does not touch the 

bottom of that ditch. The water falls through the air about five 

feet, runs down the edge of the embankment when there’s water. 

These are intermittent streams—or ditches. Those ditches would be 

regulated as a tributary of the United States under this rule. I am 

sure of it. 

Mr. NEUGEBAUER. So there is still confusion out there and uncertainty when it comes to the ditches issue? 

Mr. KERR. Yes, sir. If I could, one suggestion I would have, it 

seems to work in Virginia. I don’t want to claim that it would work 

nationally. But I would like to see, as someone else here mentioned, an opportunity where the EPA gets a roundtable together, 

a technical advisory committee, and allows that technical advisory 

committee to provide direct input, and it would have conservation 

groups, industry, consultants, the entire gamut, work on an issue 

for—in Virginia it’s up to 180 days before a rule goes out for public 

comment. So you would still have public comment. I think 180 days 

is better than 90. I don’t think—I think with these large regulatory 

issues, they’re too complicated to do too quickly. 

Chairman SMITH. Mr. Kerr, I think that’s a good idea. Thank 

you. Thank you, Mr. Neugebauer. 

The gentleman from Texas, Mr. Weber, is recognized. 

Mr. WEBER. Thank you. 

Mr. Kerr, you said earlier isolated wetlands were not regulated 

by the EPA according to a Supreme Court case. Can you give me 

the name of that case? 

Mr. KERR. Yes, SWANCC. 

Mr. WEBER. S-w-a-n-k? 

Mr. KERR. S–W–A–N–C–C, I think, Southern Water — Southern 

Waste Management Authority. It was a county in Chicago. 

Mr. WEBER. Perfect. Thank you. 

Mr. Eisenberg, you said manufacturers use one-third of the energy in the United States. You know, I have five ports in Texas. 

We export a whole lot of things and we have a lot of petrochemical 

industry and oil and natural gas and on and on and on. When I 

speak to groups, I often say that the things that make America 

great are the things that America makes. How do we do that with 

a stable, reliable, affordable, dependable energy supply? Mr. Kerr, 

would you agree with that, that America is great because of the 

things we make and we have a good energy supply to fuel, for lack 

of a better word, our industry? 

Mr. KERR. Yes. 

Mr. WEBER. Mr. Kovacs, would you agree with that? 

Mr. KOVACS. Yes. 

Mr. WEBER. Dr. Paulson, would you agree with that? 

Dr. PAULSON. I don’t know enough to comment. I think you’re 

right but I don’t know. 

Mr. WEBER. Mr. Eisenberg, would you agree with that? 

Mr. EISENBERG. I do. 
111 

Mr. WEBER. Good. Mr. Eisenberg, you also said that 65 percent 

of the controls the EPA was mandating were not identifiable. Is 

that true? 

Mr. EISENBERG. Yes. It’s EPA term of art. They call them unknown controls. They just—— 

Mr. WEBER. Okay. 

Mr. EISENBERG. —can’t tell us what they are. 

Mr. WEBER. And Mr. Kovacs, if I remember your testimony, you 

said that the EPA itself said this was going to be the most expensive regulation in history but that it wouldn’t impact states. 

Mr. KOVACS. Yes, that’s—they have this technical where if it’s a 

mandate, they don’t—and the state has to do it, they don’t count 

it as—— 

Mr. WEBER. So that was your comment, right? 

Mr. KOVACS. Yes. 

Mr. WEBER. Okay. Good. So let me come back to you, Mr. 

Kovacs. It’s the most expensive regulatory rule in history but it’s 

not going to impact states. Does that sound commonsensical to you, 

Mr. Kovacs? 

Mr. KOVACS. Well, that’s been the point of my testimony, that 

Congress has legislated for years common sense and you haven’t 

gotten it. 

Mr. WEBER. So is your answer no, it’s not commonsensical? 

Mr. KOVACS. It’s not common sense. 

Mr. WEBER. Mr. Kerr, would you agree that that statement 

doesn’t sound commonsensical? It’s the most expensive regulation 

in history but it won’t impact states. 

Mr. KERR. I think that’s nonsensical. 

Mr. WEBER. Dr. Paulson, would you agree with that? 

Dr. PAULSON. Sir, I have no idea what the context is so I can’t 

comment. 

Mr. WEBER. Mr. Eisenberg, would you agree with that? 

Mr. EISENBERG. I would agree. 

Mr. WEBER. Mr. Eisenberg, when an energy plant builds a 

plant—and I had a nuclear plant in my district when I was state 

rep. When an energy plant—when someone comes in to build an 

energy plant, permitting and all, the process takes three to five 

years? 

Mr. EISENBERG. If you’re lucky. 

Mr. WEBER. If we’re lucky. Okay. So if it’s that hard on us and 

the EPA is making it harder and harder and harder, and it’s billions of dollars, does it surprise you that some of those investors 

that have that kind of money to invest actually send that money 

overseas? Does that surprise you? 

Mr. EISENBERG. It doesn’t at all. Streamlining that process is a 

priority. 

Mr. WEBER. Dr. Paulson, does that surprise you? 

Dr. PAULSON. Again, that’s beyond my expertise, sir. 

Mr. WEBER. It’s above your pay level, pay grade? 

Dr. PAULSON. I don’t use that terminology but it’s beyond my expertise. 

Mr. WEBER. Mr. Kovacs, does that surprise you? 

Mr. KOVACS. No. 

Mr. WEBER. Mr. Kerr? 
112 

Mr. KERR. I’ll say this is—the energy policy is outside my purview. 

Mr. WEBER. Okay. You know, when I was a state rep I was on 

the environmental reg committee in Texas and I came up here to 

Congress—D.C.—in March of 2010 to an Energy and Environment 

Committee Meeting, National Conference of State Legislators, 

NCSL. I heard with my own ears an Under Secretary for the EPA 

back then say that they wanted to permit farms because of global 

warming, greenhouse gases, average farm permit $26,500 per farm. 

Now, they had done the math, and Doctor, I trust you can do math. 

Okay, good. You didn’t seem to want to weigh in on most of the 

other questions. They had calculated the income stream—now, this 

is their words, not mine—a revenue stream of $600 million. It 

turns, you know, that the streams on farms and ranches aren’t the 

only streams the EPA is interested in, okay? Six hundred million 

dollars. Now, is the EPA really only interested in science when 

they say they want to permit farms and it produces a revenue 

stream of $600 million? Does that sound like they’re interested in 

more than science, Mr. Eisenberg? 

Mr. EISENBERG. So I don’t know that I can effectively answer 

that one but I mean, they need to find a balance. 

Mr. WEBER. They do. They’re going to kill our energy supply if 

we’re not careful, and Dr. Paulson, we’re going to wind up, poor 

kids are going to all be broke. They’re going to be healthy but we’re 

all going to be broke. That’s the danger of losing jobs and sending 

our energy overseas because China and Mexico and India are not 

going to follow suit. 

So I’m going to stop there. That’s my editorial, Mr. Chairman. I 

appreciate you letting me go over. I yield back. 

Chairman SMITH. Thank you, Mr. Weber, and the gentleman 

from Alabama, Mr. Palmer, is recognized. 

Mr. PALMER. Thank you, Mr. Chairman. 

I want to start out by addressing air quality, and I have here the 

air quality section from a report done by the Alabama Policy Institute that shows that since 1980, our GDP has increased by 467 

percent, vehicle miles traveled up 94 percent. The population’s 

grown by 38 percent. Energy consumption is up 22 percent. But 

emissions are down 50 percent. When you look at the air quality 

index and the percentage of days per year that the air quality 

index exceeded the standards, we went from about 24 percent in 

1980 to about two percent. So there’s no question that we have 

done an excellent job of improving air quality yet the asthma rate 

has gone up. I think that’s been mentioned several times. 

I’d also like to point out that there might be other factors that 

cause asthma rates to have gone up, and for instance, here’s a report from UCLA, University of California, Los Angeles, in case anyone wonders what the acronym is. It says asthma disproportionately affects low-income populations, and the percentages are astonishing, frankly, that it would have such a higher prevalence 

among low-income families when I think—and I’ll ask my colleague 

from California, Mr. Knight, I believe that higher-income families 

breathe the same air as the low-income families. So, Mr. Chairman, 

I’d like to enter into the record the article and the section from the 

report on air quality, and I’ll also point out—— 
113 

Chairman SMITH. Without objection. 

[The information appears Appendix II] 

Mr. PALMER. Thank you. 

As well that there is an estimate on what the ozone—new ozone 

regulations will cost. I find it interesting, Mr. Kerr, that the EPA 

seems to think that there’s not going to be an impact. Is it possible 

in your mind just rationally thinking this through that the additional regulations that are being imposed on businesses that are 

going to result in substantial job losses, that’s going to result in 

less disposable household income, that will result in lower incomes 

could have a more negative effect on health and well-being of people than any positive effect that additional regulations would impose, considering the improvements that we’ve made already? 

Mr. KERR. I’ll have to concede to the others because I don’t do 

air quality consulting. 

Mr. PALMER. My question is, do the people who work for the 

businesses of the United States and earn income do better in terms 

of health and well-being than people who have no income and no 

job? 

Mr. KERR. Yes, sir, they do. 

Mr. PALMER. That’s part of what I would consider commonsense 

policy. 

In May of—in a May 29, 2015, interview with PBS News Hour, 

EPA Administrator Gina McCarthy stated the following: that farmers will know very clearly here we are clearly explaining that irrigation ditches are not included. We have clearly said in the rule 

beyond this rule adds absolutely no regulatory or permitting issue 

to agriculture whatsoever. Do you agree with that statement? 

Mr. KERR. No, I don’t. If I could get a chance to elaborate at 

some point, I’d like to give you time to ask more questions. 

Mr. PALMER. Okay. We’ll come back to that as the last opportunity for you to speak. 

Mr. Kerr, former EPA Office of Water Deputy Administrator 

Nancy Stoner previously stated that the rule will not have a negative effect on small businesses. She said the Agency sought early 

and wide input from small businesses while developing the proposed rule including meetings as far back as 2011. Do you agree 

with this statement, that the rule will not have a negative impact 

on small businesses? 

Mr. KERR. I disagree with the statement. I’ve talked to small 

homebuilders. You know, regulatory creep is already having an effect. 

Mr. PALMER. Well, that conclusion is consistent with what the 

National Federation of Independent Business concluded. They had 

a Small Business Optimism Index and found that small business 

owners attributed regulations as the single-most important problem facing businesses today. 

So you said that you’d like to elaborate on something. You may 

do so. 

Mr. KERR. Thank you. Well, two parts. When a farmer in Chesapeake is looking to sell his land and needs a wetland delineation 

done so that the prospective purchaser can determine where they 

can build, we’re walking out into soybean fields and looking at 

areas that show up as moist signatures on aerial photographs and 
114 

looking to see if there might be some wetland plants or stunted 

vegetation in a crop field, and the Corps of Engineers before this 

rule are regulating those areas as wetlands. Now, if they’re isolated, then the Corps—the federal government does not take jurisdiction; the Commonwealth of Virginia would. If they’re adjacent to 

a ditch that’s adjacent to a wetland, all of a sudden they are regulating it. Now, that—that has already crept into the procedure, and 

I’ve argued consistently that it shouldn’t because Congress went to 

the Corps back in 1990 and said create what’s called a PC cropland, prior converted cropland. They had—there was a regulatory 

guidance letter the Corps put out, 90–7, that spelled out the procedures for that that exempted agricultural fields as long as they 

didn’t pond or flood for 7 to 14 days. Any portions that did would 

be considered a farmed wetland and be regulated. 

In 1993, the EPA and the Corps put out a rule that said we’re 

codifying regulatory guidance letter 90–7, and you would think, I 

thought—I’m a consultant. I know 90–7. They said they codified it, 

which would have perpetuated this exemption for most farm fields 

that were farmed prior to 1985, don’t pond or flood for very long 

duration and have never been abandoned for more than five years. 

With that rule in place, they’re now telling me that what that 

actually means is that they don’t recognize the prior converted 

cropland rule created by the NRCS under the Food Subsidy Act 

and that the Corps doesn’t recognize 90–7 anymore at all anywhere 

at any time, and I’ve repeatedly asked the question, and the rule 

that’s just been passed, they simply said we’re not changing that 

because we weren’t—that’s not part of our charge. They changed 

adjacency definition and that wasn’t part of their charge. I would 

love to see Congress—to me, there’s no confusion. In fact, there’s 

a court in Florida that’s already decided this case, which I brought 

to the Corps’ attention, which didn’t get any traction, and that 

judge said you can have two different rules that use the same 

phrase and they mean two different things because they fall under 

two federal laws. That’s not occurring, and we have farm ditches 

and farmland being regulated today and it’ll continue. 

Mr. PALMER. Mr. Chairman, just one last point. I want to point 

out that Dr. Phillip Lloyd, former U.N. International Panel on Climate Change lead author, found that global temperature change 

over the last 100 years is well within the natural variability of the 

last 8,000 years. Standard deviation over the last 8,000 years is .98 

degrees Celsius. I want to emphasis point 98—— 

Chairman SMITH. Thank you—— 

Mr. PALMER. Over the last years it’s been .85 degrees Celsius. 

Chairman SMITH. Thank you, Mr. Palmer, and if you would give 

us a document to put into the record as well. 

Mr. Moolenaar, the gentleman from Michigan, is recognized. 

Mr. MOOLENAAR. Thank you, Mr. Chairman. 

Mr. Kerr, I’d just like to continue following up with you and then 

also talk to Mr. Kovacs and Mr. Eisenberg on some of the Waters 

of the United States issues. What in your judgment—there were 

some court cases. There’s the Clean Air Act and there was an effort 

by the EPA to clarify its jurisdiction. Is that really how we’ve gotten to this point? 
115 

Mr. KERR. Yes. There were a few Supreme Court decisions, 

SWANCC being one, Rapanos being one of the other two or three 

major ones. That’s correct. 

Mr. MOOLENAAR. And so in your judgment, were they trying to 

solve a policy problem that existed out there where people throughout the country were saying, you know, there’s not enough water 

or—what problem other than the legal issues were they trying to 

solve? 

Mr. KERR. Two real problems. One is the legal question, and 

there was some ambiguity because of multiple Supreme Court decisions that had to be looked at in the field, and then it became the 

practical problem of how do you provide guidance to regulatory 

staff and consultants that’s clear, easily understandable and could 

be consistently applied, not only in an area but across the entire 

country. So that was the challenge, and they tried to take in 

science, and in the preamble of the rule, they said those are the 

three compelling issues they have to deal with—science, policy and 

law—and they said that science in fact falls short in certain areas, 

and they’ve got to reach a policy decision that’s consistent with the 

law. 

Mr. MOOLENAAR. And in your judgment, it’s gotten actually more 

complicated. Some of these new definitions, rather than giving clarity, have really expanded their jurisdiction and raised a number of 

new questions. 

Mr. KERR. Yeah, they’ve kind of moved items around, and so 

things that were previously one thing like possibly an isolated 

water that wasn’t regulated can become an adjacent water. The 

other thing is, they did create a bright line but the bright line— 

and I’m speaking specifically to rule A8, wetlands that show a significant nexus to traditionally navigable waters, allows that to be 

applied to any feature within 4,000 feet of an ordinary high-water 

mark or a tributary. 

Now, we’re not talking about rivers, we’re not talking about 

streams, we’re not talking about creeks. Where I come from, there 

were creaks, then there were smaller ones that were cricks. We’re 

not talking about those. We’re way up into the headwaters of 

ephemeral and intermittent streams and then going 4,000 feet out 

to determine a significant nexus. 

My point is that that includes virtually the entire watershed of 

virtually every place that I’ve looked. So they created a bright line 

but it includes everything. 

Mr. MOOLENAAR. So in your judgment, and I wanted to hear 

from Mr. Kovacs and Mr. Eisenberg, do you view this as a significant expansion of their jurisdiction, of their authority? I mean, is 

that your conclusion? 

Mr. KERR. Yeah, and they’ve—it’s not any clearer. They’ve expanded jurisdiction into areas that heretofore may not have been 

regulated or weren’t regulated, and the procedures aren’t any clearer. They provided some bright lines, and some of those are commendable but others are just—they kind of grab all kinds of things 

and don’t create the simplicity that anyone was looking for. 

Mr. MOOLENAAR. Mr. Kovacs, do you view this as a significant 

expansion of their jurisdiction or authority? 
116 

Mr. KOVACS. Well, it certainly is significant expansion of their 

authority. I think what troubles me the most in this whole argument is not once in all the hundreds of pages that they have did 

they ever say that the states weren’t doing a good job on state 

waters, which is really remarkable. Second, that they never said 

that the water quality that was administered by the states was in 

any way impaired. That’s quite remarkable. Under unfunded mandates, they make it very clear that they are imposing no mandates 

on state and local governments, and in terms of small business 

they say there’s absolutely no impact even though they’re greatly 

enhancing jurisdiction. 

This is a shell game, and this is what the whole regulatory process has become, and that’s why I keep on pleading, Congress really 

needs to take more action and get back in the game. 

Mr. MOOLENAAR. Let me go to Mr. Eisenberg. 

Mr. EISENBERG. So we just finished our annual fly-in. We had 

500 manufacturers coming to town. I had dinner two nights ago 

with about 25 of them to talk specifically about water issues, water 

scarcity, waters of the United States, things like this, and at the 

end of the meal I said look, is this—are you guys in a better place 

because of this regulation, and every single one of them said no. 

It is still causing them headaches. All we wanted was clarity. Had 

we gotten clarity, my testimony would have been a lot different 

today. We didn’t get it. 

Mr. MOOLENAAR. Thank you, Mr. Chairman. 

Chairman SMITH. Thank you, Mr. Moolenaar. 

Before we conclude, Dr. Paulson, I was going to mention to you 

that we contacted the Assistant Director of the Capital Power 

Plant, and he confirmed that whether it burns natural gas or coal, 

the smoke is still white, and while I certainly have sympathy for 

any child who’s gotten asthma, you might want to check with the 

doctor about his statement that whenever the smoke turned black, 

the asthma became worse. I’m not sure that there’s a basis for 

that. But I look forward to hearing more information about it as 

well. 

Thank you—the gentlewoman from Texas. 

Ms. JOHNSON OF TEXAS. Thank you, Mr. Chairman. Let me 

thank all the witnesses. I want to ask unanimous consent to put 

an article from the Scientific magazine in the record that speaks 

to the role of science and rulemaking process. 

Chairman SMITH. Without objection. 

[The information appears Appendix II] 

Chairman SMITH. We thank you all for your testimony today, 

very helpful, very informative, and we stand adjourned. 

[Whereupon, at 11:09 a.m., the Committee was adjourned.] 
(117) 

Appendix I 

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

Responses by Mr. Bill Kovacs 
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Responses by Dr. Jerome A. Paulson 
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Responses by Mr. Ross Eisenberg 
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(145) 

Appendix II 

ADDITIONAL MATERIAL FOR THE RECORD
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DOCUMENTS SUBMITTED BY CHAIRMAN LAMAR S. SMITH
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DOCUMENTS SUBMITTED BY RANKING MEMBER EDDIE BERNICE JOHNSON
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DOCUMENTS SUBMITTED BY REPRESENTATIVE DONNA F. EDWARDS
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DOCUMENTS SUBMITTED BY REPRESENTATIVE SUZANNE BONAMICI
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193 
194 
195 
196 
197 
198 
199 
200 
201 
202 
203 
204 
205 
206 
207 
208 
209 
210 
211 
212 
213 
214 
215 
216 

DOCUMENTS SUBMITTED BY REPRESENTATIVE DON S. BEYERS
217 
218 
219 

DOCUMENTS SUBMITTED BY REPRESENTATIVE PAUL TONKO
220 
221 
222 

DOCUMENTS SUBMITTED BY REPRESENTATIVE GARY PALMER
223 
224 
225 
226 
227 
228 
229 

Æ