This Week in the EPA Section of the Federal Register…

by William Yeatman on January 15, 2015

in Blog

In Tuesday’s Federal Register, EPA proposed to modify its federal implementation plan for Arizona, pursuant to the Clean Air Act’s regional haze program. The occasion affords us the opportunity to remind readers that the Obama Administration has executed more Clean Air Act regulatory takeovers of state programs than ten times the sum of the previous three administrations.


  • In today’s federal register, EPA announced the availability of a report whose purpose is to lend a scientific justification for the agency’s proposal to expand federal jurisdiction pursuant to the Clean Water Act. The report is titled, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” In a nutshell, the purpose of this EPA *science* is to demonstrate the physical, chemical, and biological connections to, and effects of, wetlands and open waters in non-floodplain settings on downstream waters. In plainspeak, the purpose of the report is to demonstrate that all waters in the U.S. are connected, and, therefore, it’s all subject to the federal government’s jurisdiction under the Clean Water Act. It’s yet another example of how EPA gets to conduct the *science* upon which the agency can justify an expansion of its authority. Funny how that works! In this post, I give an example of the absurd reach of the proposed jurisdictional rule.
  • Also in today’s federal register, EPA announced a final rule establishing air quality designations for the 2012 PM 2.5 National Ambient Air Quality Standards. After the agency sets nationwide standards, it must determine which parts of the country do and don’t achieve the standard, as each type of area is subject to a different regulatory regime. This round of designations is notable insofar as it may be the last time that the agency uses actual monitoring data, rather than model projections, to make these area determinations. As I explain here and here, the agency is attempting to use the “sue and settle” process to require area designations based on model projections for the sulfur dioxide national standards. The problem with area designation based on model projections is that models are assumption-dependent, and EPA gets to control the assumptions. As such, it’s a de facto grant of discretionary power. EPA can manipulate the models to get whatever result it wants.

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