House panel approves bill to ban phantom EPA dust rule


Lisa Jackson, chief of the U.S. Environmental Protection Agency. (John Flesher/AP)

Earlier this year, Republicans found what they saw as an ideal talking point to illustrate a federal bureaucracy gone batty.

The Environmental Protection Agency, they warned, was trying
to regulate something only God could control: the dust in the wind.

“Now, here comes my favorite of the crazy regulatory acts. The EPA is now proposing rules to regulate dust,” Rep. John Carter (R-Tex.) said on the House floor. He said Texas is full of dusty roads: “The EPA is now saying you can be fined for driving home every night on your gravel road.”

There was just one flaw in this argument: It was not true.

The EPA’s new dust rule did not exist. It never did.

Still, the specter of this rule has spurred three bills to prevent it , one of which was approved Thursday by a House subcommittee. It sparked a late-night battle on the Senate floor. GOP presidential candidate Herman Cain cited it in a debate as a reason to eliminate the EPA.

The hubbub over this phantom rule — surely one of the most controversial regulations that never was — involved a slow-moving federal agency and a Republican Party with the EPA in its crosshairs.

“I do believe that the EPA does have the ability to change its mind,” said Rep. Kristi L. Noem (R-S.D.), the sponsor of the bill that was approved Thursday. The EPA has confirmed that it does not intend to strengthen standards on farm dust. But Noem is still pushing a bill to go further and weaken the EPA’s power to set such rules in the future.

“This EPA has been very hard on business in this country, and this EPA has been very hard on agriculture,” Noem said. “I think it’s time we pushed back.”

The origins of a fear

Farm dust — the stuff at the center of this story — contains things such as windblown dirt, bits of last year’s cornstalks and manure dried down to powder. It is an ancient fact of farm life.

By the EPA’s rules, it is also pollution.

The EPA lumps it in with soot from power plants as “coarse-particle pollution.” The agency limits how much of this can be in the air, because the particles can cause heart and lung damage.

Two states, Arizona and California, require some farmers to take dust-control measures: Together, their rules affect more than 7,800 farms. But last fall, an EPA advisory panel raised worries that more farmers could be affected. It recommended that the agency tighten standards, potentially leading to crackdowns elsewhere.

And so the dust fight began.

To actually change the rules for dust on farms, the EPA would have to formally propose a new rule. And in March, EPA Administrator Lisa P. Jackson said she was not likely to do that.

“We have no plans to do so,” Jackson said. But she couldn’t guarantee it. Jackson said she was still required to spend several more months in a formal review before offering ironclad assurances that farmers would not face new rules.

That wasn’t enough. In April, Noem introduced her bill and gathered 112 sponsors, including a handful of farm-state Democrats. A Senate bill gathered 26 sponsors, including two Democrats facing tough reelection fights in 2012.

Timing for a talking point

For Republicans, the issue emerged at a good time. The GOP-led House has passed a spate of bills intended to delay or alter new rules set by the EPA under President Obama. The subjects range from emissions from cement plants to runoff from farms and mine sites.

The GOP agenda was supported by many business and farm groups, which said surveys showed many small businesses felt overly burdened by new rules and costs imposed by the EPA.

“You’ve got an agency that has a far greater economic impact — by region, by size, by sector — on the overall economy than any other agency,” said R. Bruce Josten of the U.S. Chamber of Commerce.

For Republicans the EPA’s new dust rule was an ideal talking point for this agenda, even though EPA had still not proposed any rule.

“We’ll stop excessive federal regulations that inhibit jobs in areas as varied as cement and farm dust,” House Speaker John A. Boehner (R-Ohio) told the Economic Club of Washington in September. Boehner’s deputy, House Majority Leader Eric Cantor (R-Va.) wrote an op-ed in The Washington Post decrying “EPA’s proposed regulations” on subjects including farm dust.

On the House floor, other legislators sketched out an even more detailed picture.

“Say Bessie the cow kicks up too much dust running over to your pickup truck at feeding time,” warned Rep. Ted Poe (R-Tex.). “The EPA is going to fine you for Bessie’s misconduct.”

Spokesmen for Boehner, Poe and Carter — the lawmaker who sketched out worries about gravel roads — say all their bosses knew there was no proposed rule. They were speaking hypothetically, the spokesmen said, about the threat of a rule. Spokesmen for Cantor did not explain of his comments.

As the year went on, the non­existent rule also turned up in the Republican presidential race.

“The EPA has gone wild,” Cain said in a GOP debate in September. “The fact that they have a regulation that goes into effect January 1, 2012, to regulate dust says that they’ve gone too far.”

In a written statement, Jackson, the EPA administrator, defended her agency’s work as necessary to protect public health.

“Some in Washington are pushing misinformation about the cost and benefits of environmental protection,” she said. “But the truth is EPA works closely with a variety of stakeholders, including industry, to develop common-sense standards.”

But on Capitol Hill this year, Jackson would not give Republicans the answer they were looking for: no dust rule, never, guaranteed. She said she couldn’t give a definitive answer until a months-long administrative process was finished.

“We’re concerned about your health, but we also are pragmatic and practical people,” Jackson said in one hearing, addressing herself to the people of rural America. “And our standards and proposal will reflect that.”

It still wasn’t enough. In early October, Republicans demanded a vote on farm-dust rules in the Senate. That helped set off a fight that Senate Majority Leader Harry M. Reid (D-Nev.) settled with a dramatic procedural move late at night. Finally, on Oct. 14, Jackson made it official. In a letter to senators, Jackson said the standards on coarse-particle pollution would not change.

But still, the fight went on. On Thursday, a subcommittee of the House Energy and Commerce Committee voted along party lines and approved Noem’s bill, 12 to 9. The EPA has said that the bill — which now needs approval from the full committee and the entire House — could actually exempt a range of rural polluters from regulations.

Even if the bill passes the House, it is unlikely to succeed in the Democratic-controlled Senate. Sen. Barbara Boxer (D-Calif.), chairman of the Environment and Public Works Committee, has said she will use her power to fight a dust bill.

Before Thursday’s vote, several Democrats ridiculed the bill. Rep. Edward J. Markey (Mass.) called it “a real piece of legislation that solves an imaginary problem.” Rep. Henry A. Waxman (Calif.) said, “We might as well tell EPA not to regulate fairy dust.”

But Republicans on the subcommittee defended the bill, saying it would prevent the EPA from changing its mind about farm dust. It would also, they said, dampen the threat that an environmental group could force the EPA to crack down on farm dust by filing a lawsuit.

“If they chose — unilaterally — not to enforce, they’re only one lawsuit away” from changing that decision, said Rep. Lee Terry (R-Neb.) “We have to make it clear that farm dust is exempt. And that’s what we’re doing here.”

David A. Fahrenthold covers Congress for the Washington Post. He has been at the Post since 2000, and previously covered (in order) the D.C. police, New England, and the environment.
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