Providing for Consideration of H.R. Blocking Regulatory Interference From Closing Kilns Act of and Providing for Proceedings During the Period From March Through March 2016

Floor Speech

Mr. Speaker, I rise today in opposition to the rule and the underlying bill. The Blocking Regulatory Interference from Closing Kilns Act--certainly, a mouthful to say--is yet another of the endless list of attempts by this body--and it will not become law--to block implementation of an administrative rule or regulation that some people don't like, rather than tackling the issues that this country cares about and that I hear from voters back home when I have townhall meetings or I am at the grocery store.

I hear about fixing our broken immigration system and securing our border. I hear about balancing the budget deficit. I hear about making sure that Medicare and Social Security are solvent and there for the next generation. I hear about making sure we create jobs, that housing is affordable, and that our roads and bridges are safe so traffic can flow safely and quickly.

Yet, here we are again, spending an entire legislative day debating a bill that won't become law, which you will certainly hear about over the next couple of hours, regarding a series of regulations around brick kilns.

Once again the Republicans are approaching a complex rulemaking process with a knee-jerk reaction in a nontransparent process with a closed rule, not even allowing a debate for a single amendment.

Not only is this bill not transparent and not necessary, in this particular case, it sets a bad precedent because the courts already have the authority to issue a stay of compliance on a final rule.

As we saw through the recent delay of the Clean Power Plan, our judicial and legislative systems are separate for a reason.

Let the courts do their work and let us do ours. Let us not preempt the courts from their normal process. Our judicial and legislative systems are separate. Individuals, organizations, and companies have plenty of recourse and options through the court system to address this matter.

The floor of the House is not the place to be requesting a stay. If there was something done that was illegal or wrong, the place to request a stay is the courtroom.

But time and time again legislation like this has come to this floor, disposing of the judicial process and shortcutting the justice system that we have to delay a rule until all legal challenges are completed, which effectively means that frivolous lawsuits can jam up the rule indefinitely and forever.

Over the past 45 years, it is proven that clean air regulations are important to protect the public health and consistent with growing a strong economy.

Of course, I understand the pressure requirements placed on brick and clay ceramic makers. They have legitimate reasons to provide input to question or contest the rule.

The judicial avenue is and will be available to them. That is the appropriate venue to request a stay, not the floor of the House of Representatives.

There are several brick and clay companies in my State of Colorado, such as the Summit Brick & Tile Company in Pueblo, Colorado. I know these companies updated and changed their industry after the 2004 rule.

But, unfortunately, like so many rules under the administration of George Bush, the rule is written so poorly that it was vacated by the courts in 2007, which means there is no rule under the authority of the Clean Air Act, which this Congress has made the law of the land, that sets standards for eliminating air pollution in this industry. Not only is that unacceptable, but, of course, it needs to be rectified urgently.

There is nothing special about brick kilns. Like anything else, of course, they affect air quality. I have a picture of what we are talking about here.

Of course, like any other economic activity that creates issues regarding air quality, we need a nuanced and thoughtful rule that ensures that the economic activity continues, subject to maintaining the public health.

In fact, the EPA has a responsibility under section 112 of the Clean Air Act to control pollution from stationary sources of pollution, like brick kilns.

Let me repeat that. The EPA was actually required by Congress to implement a rule that covers this industry because, according to the judiciary, President Bush enacted the rule incorrectly.

If Congress wants to get at the underlying statutes, let's have that debate. Let's talk about what the EPA should and shouldn't do.

I believe that we should close down loopholes that exempt fracking from regulation under the Clean Air Act. We have a series of bills that would do that--the BREATHE Act and the FRESHER Act--to ensure that the small site exemption does not occur, does not exist with regard to fracking activities that, in the aggregate, can have a considerable impact on air quality.

We have seen areas of our State and our neighboring State of Wyoming have worse air quality than downtown Los Angeles because of the extraction and fracking-related activity, which is largely exempt from the clean air law.

That is the debate I would be happy to have. Let's debate the appropriate jurisdiction of the EPA. If there is something we got wrong in that with regard to brick kilns and their authority or responsibility, that is the place to have the debate.

It is not to give an indefinite stay to simply implement what is the law of the land and the will of Congress, which is the EPA's responsibility.

Congress has told the EPA, through the Clean Air Act, that they have the responsibility under section 112 to control pollution from stationary sources of pollution. They tried to do it under President Bush. It was tossed out by the courts because it was improperly constructed, and they are doing their job.

Yet, Congress is trying to use something that is normally a judicial procedure, a stay, to get around the very mandate that Congress gave the Environmental Protection Agency. So it is simply the wrong way to go about it.

Brick and clay plants, if left unregulated, which is why they are covered under the Clean Air Act, can be major sources of toxic air pollutants, like hydrogen fluoride, hydrogen chloride, and hazardous metal, heavy metal pollutants that can endanger people with everything from asthma to cancer.

Now, I don't know about you, but I would rather have my children running around a playground of a town where plants that put out hazardous pollutants are regulated in a thoughtful and responsible way, which is what this rule attempts to do.

That is why opponents of this legislation include the Center for Biological Diversity, League of Conservation Voters, League of Women Voters, National Resource Development Council, the Sierra Club, and the Union of Concerned Scientists.

All of these experts understand that, for 15 years, Congress has expected air pollution from these facilities to be covered by the Clean Air Act standards, and that delaying the process further is irresponsible, prevents the EPA from doing their mandate that Congress has given them, sets a dangerous public health precedent, and will endanger lives of American citizens.

Not only is this a treacherous pattern but, again, it is a waste of time. This bill won't become law. It came out of committee on a party- line vote. The majority knows that, even in the off chance that the Senate were to consider this legislation, which I highly doubt, the President would veto the bill.

It was indicated in the Statement of Administration Policy that I will include in the Record, Mr. Speaker, which reads, in part, H.R. 4557 would create ``an incentive for parties to litigate this rulemaking and the related corrections notice for as long as possible in order to delay air pollution reductions.'' Statement of Administration Policy H.R. 4557--Blocking Regulatory Interference from Closing Kilns Act of 2016--Rep. Bill Johnson, R-OH, and seven cosponsors

The Administration strongly opposes H.R. 4557, which could extend indefinitely deadlines for the brick and structural clay industry to limit mercury and other hazardous air pollution. Specifically, H.R. 4557 would extend compliance deadlines for the Brick and Structural Clay National Emission Standards for Hazardous Air Pollutants until all litigation on the final rule is complete, thereby creating an incentive for parties to litigate the rulemaking and the related corrections notice for as long as possible in order to delay air pollution reductions. In the meantime, H.R. 4557 would undermine the public health protections of the Clean Air Act (CAA) by allowing further emissions of approximately 30 tons per month of toxic air pollution from brick and clay products production facilities. These toxic emissions include mercury, gases, and other hazardous metals which are associated with a variety of acute and chronic health effects, including cancers.

The CAA required the Environmental Protection Agency to finalize pollution standards for toxic air pollution from all industrial sectors by 2000. Since then, sources in many other sectors have been complying with standards that limit their emissions of cancer-causing toxic air pollutants. The subject rule reflects CAA requirements while providing flexible compliance options and the maximum time allowed by law for compliance. It also makes distinctions between requirements for small and large kilns in order to reduce the impacts on small businesses.

Since its enactment in 1970, and subsequent amendment in 1977 and 1990--each time with strong bipartisan support--the CAA has improved the Nation's air quality and protected public health. Over that same period of time, the economy has grown over 200 percent while emissions of key pollutants have decreased nearly 70 percent. Forty-five years of clean air regulation have shown that a strong economy and strong environmental and public health protection go hand-in-hand.

Because H.R. 4557 threatens the health of Americans by allowing more toxic air pollution, if the President were presented with H.R. 4557, his senior advisors would recommend that he veto the bill.

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Mr. POLIS. Again, so long as even there are the most frivolous lawsuits and anybody could continually file a lawsuit, and so long as any one of them is pending, the rule does not take effect. It is indefinitely stayed.

So, yet again, we are debating something on the floor going nowhere. We are not debating improving our roads and bridges. We are not debating securing our southern border. We are not debating balancing our Federal budget deficit. We are not debating making America more competitive and bringing jobs from overseas and China back home here and creating a growing middle class. Instead, we are wasting time on legislation that won't become law, that shouldn't even become law because it is the inappropriate role of this body.

There are so many things that we could be talking about even within the energy realm and the EPA realm that would be productive discussions. I will give you an example.

I have had the opportunity in hearings in the Natural Resources Committee to bring up a bipartisan bill that I have with Mr. Gosar twice this week, and this is the third time. It is a bill that would create jobs and create renewable energy. It is called the Public Lands Renewable Energy Development Act.

Why don't we have a rule on that bill or bring it up on suspension?

Mr. Gosar and my bill would incentivize renewable energy development by streamlining the permitting process on public lands for renewable energy projects.

Isn't that something we can come together about, making sure that we can find a way to expedite siting for renewable energy products on public land, creating jobs and creating clean energy?

Or we could be discussing the need for a permanent reauthorization of the Land and Water Conservation Fund, something that just last week was offered as a bipartisan amendment by myself and Mr. Grijalva and Mr. Sanford of South Carolina.

But, of course, that amendment was not given an hour of debate, 2 hours of debate, like this. We have the rule, we have the bill. The entire legislative day is discussing a stay on brick kilns. It should be in a courtroom, not in the U.S. House.

We weren't even given 10 minutes. We weren't even given 1 minute to discuss that bipartisan amendment from Mr. Grijalva and Mr. Sanford and myself.

Look, the list goes on and on of what we could be doing. It has been said that politics is the art of the possible.

When the American people look at our proceedings on the floor and what the Republican majority is doing with Congress, is it any wonder that the approval rating of Congress is 8 percent?

The people look at Congress and say, look, you are spending an entire day debating a stay on kiln rules. First of all, why are you talking about it? It should be in a courtroom.

Second of all, aren't there critical national priorities that you need to be debating right now to create jobs, make America more competitive overseas, improve our schools, make college more affordable, balance our deficit, fix our broken immigration system, improve our roads and bridges, make America more competitive and grow the middle class? Aren't there?

That is what 92 percent of the American people are crying out. There is still time for this Congress to listen. I hope that we begin.

I want to talk a little bit more about when we say this bill will never become law what exactly we mean and I mean when I indicate that.

There have been an enormous number of bills that have passed the House of Representatives. As an example, repealing the Affordable Care Act, ObamaCare, taking health care away from tens of millions of Americans--that has passed this House in one form or another 64 times. So 64 times the House of Representatives has voted to repeal the Affordable Care Act. That is clearly what people who have been elected to the House have decided to do.

The House of Representatives alone, however, doesn't get to make the law. We have the United States Senate and we have a President. The United States Senate usually requires, as a procedural matter, 60 votes to move legislation forward. And of course, even after a bill in the same form passes the House and the Senate, for it to become law, the President needs to sign it. If the President vetoes it, it immediately comes back and will require two-thirds to override the veto.

So what we are talking about with this bill around kilns, like this one here, we are talking about a bill that probably will pass the House. I expect that that is what we are spending a whole day on. I don't think the Republicans would want to spend a whole day on it if it was going to fail. So let's assume it passes.

I have heard no indication whatsoever that the Senate is going to take this up in any way, shape, or form. In the unlikely event that the Senate takes it up, they have the challenge of getting 60 votes.

The bill had no bipartisan support in committee. It is hard to see how they would get enough Democratic support in the Senate to get the 60 votes to pass the bill. Even if they somehow did, President Obama and the administration is, of course, against providing a stay against their own rule that they promulgated. Therefore, we are spending an entire day doing nothing, talking about brick kilns, fiddling while Rome burns.

The American people are upset, Mr. Speaker. The American people want this Congress to tackle the issues that affect them and their family around their kitchen table: rising rents and mortgage prices; maybe the mom or the dad or the kids lost their job and need to get back to work; making sure that they have a way to commute to work every day, and that our roads and bridges are strong, and they spend a minimal amount of time in traffic so they can spend more time with their family or at work earning money; balancing our budget deficit to secure a strong financial future for our country; making sure that Medicare and Social Security are there and safe, not only for today's retirees, but for the next generation and the next generation of American retirees; securing our southern border and replacing our broken and nonsensical and costly immigration system with one that works for America to make us more competitive, generate more revenues, unites families, and reflects our values as a Nation of immigrants.

We could be doing any of those things. We could be debating any of those things. No one says they are easy. It starts with time to debate here on the floor of the House. What a great way to spend a day, a Thursday.

By the way, Speaker Ryan and the Republicans don't even have us working Friday, tomorrow. They are sending us all home on Thursday, after spending a day debating brick kilns. We are not even debating anything tomorrow, Friday, or Monday or Tuesday or Wednesday or Thursday or Friday of next week.

I mean, look, the American people would love this kind of job which the Republican majority has given themselves with the congressional calendar where we have worked 3\1/2\ days this week, get Friday off, all of next week off, and spend a whole day debating brick kilns, rather than the issues that the American people care about.

That is what is going on here. That is why Congress has such a low approval rating.

Well, look, let's begin by debating the issues that people care about. They are hard. I get that. Fixing our broken immigration system, balancing our budget deficit, securing Medicare and Social Security, are not easy issues.

But why don't we spend a day doing that, today, all day, having ideas from both sides of the aisle, having Members speak about their plans to make America better and stronger, rather than debating a court procedure, a stay on brick kilns, all day, and then rewarding ourselves with a day off tomorrow.

Job well done, Congress. We did a court procedure on brick kilns as our work product and, for that, we deserve a week and a half off.

That is the job that Congress has defined for itself, and it is why the American people are so outraged.

Mr. Speaker, if we defeat the previous question, I will offer an amendment to the rule that would require the Republicans to stop their partisan games and hold hearings on the budget proposal, the President's budget.

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Mr. POLIS. Mr. Speaker, if we pass this previous question motion that I am making, we can actually begin the important discussion of how we can bring our budget into balance and restore fiscal responsibility.

Let's have hearings on the President's budget proposal. Let's talk about the tradeoffs around investments and savings. Let's have those meaningful discussions, rather than to spend an entire day on brick kilns, and then giving ourselves a week and a half off.

We can still salvage this Congress for the American people. We can restore trust in the integrity and the desire of the American Government to do good and tackle the big issues we face. I am confident we can.

That can begin by passing my previous question motion and getting to debate about the budget and balancing our budget and the tradeoffs and investments in our future, rather than debating kilns and giving ourselves a week and a half off.

Mr. Speaker, I want to, first of all, congratulate the gentleman from Alabama. He had a recent election and triumphed, and, of course, we will be excited to continue to serve with him.

When we run, it is difficult. We have our ear to the ground, and we hear people. The gentleman mentioned that people were angry back home. I think there are a lot of people in my district that are angry, too. But again, I want to ask the gentleman: Is what they were angry about this brick kiln rule, or were they angry about the failure of Congress to secure our borders and the failure of Congress to balance our budget, all those things? I want to ask whether what you heard about in that anger was about brick kilns, or was it about other issues.

I yield to the gentleman from Alabama.

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Mr. POLIS. Did anybody who was angry bring up brick kilns as something they were angry about?

I yield to the gentleman from Alabama.

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Mr. POLIS. Mr. Speaker, reclaiming my time, as I indicated, it would be an appropriate discussion for us to talk about the statutory obligations of EPA. We might have differing opinions. I think they should have the authority, we should remove the small site exemption, and they should look at emissions from the fracking industry and the extraction. But that is a valid discussion to have.

Instead of that, we are saying you are doing what we told you to do, but we want to grant a stay. So Congress, under the EPA in section 112, directed the EPA under the Clean Air Act to promulgate these regulations. President George Bush did so. They were tossed out, and now there is a new set of regulations going forward to implement what Congress wanted the EPA to do.

Now, if the gentleman from Alabama doesn't want the EPA to do that, let's have that discussion about EPA's authority. I am happy to do it. I have ideas. Maybe there are some areas the EPA shouldn't have that mandate authority. There are other areas, like making sure we look at emissions from fracking where we need enhanced authority because there is something called the small site exemption in the Clean Air Act, where, even though each particular fracking pad has a very small contribution to air quality, when you start having thousands of them in a limited area--which we do--it starts looking a lot less like a couple automobiles and a lot more like a large industrial factory. So they shouldn't be exempt just by nature of being small, because when you have a lot of small things, it equals not only one big thing, it equals 10 big things and 100 big things.

We have over 40,000 active wells in the greater Weld-Larimer County area alone, and there is an enormous impact on our air quality, which is exempt under the small site exemption.

So again, section 112 directs the EPA to promulgate these rules. If we want to open up the mandate that Congress has given the EPA, let's have that discussion.

As an individual legislator, I might trade you this brick kiln authority if we can close the small site exemption. I would say, fine; my constituents care more about closing that small site exemption than they do if there are two brick kilns in our entire State. So I think, in general, my constituents and Coloradans care more about making sure our air quality is good and protected with regard to the emissions from the fracking activity than from the two brick kilns. So I would be open to that as a legislative compromise. That is how legislation is made. But we are not allowed to have that debate.

The gentleman mentioned, oh, no amendments were brought forward. Guess what? We did a motion in the Rules Committee--I am sure the gentleman from Alabama remembers--yesterday to do an open rule on this. If that had passed--and it failed on a partisan vote. Not a single Republican voted to allow an open rule on this bill. If that had succeeded, if that had passed, that open rule the Democrats wanted, we could then introduce amendments like the ones that I mentioned to talk about the authority of the EPA or other issues that we have to improve the statutory requirements in charge of the EPA. Right on the floor, we would have the opportunity to do that. Instead, we have an entire day on brick kilns without even being allowed to introduce amendments that affect our clean air and water in any way, shape, or form. I think we can do better.

The gentleman also asked what the impact of the brick kilns on this is. The EPA estimates that the brick and clay rule would reduce national air toxins by approximately 375 tons in 2018. Again, that is what Congress has told the EPA to do under the Clean Air Act.

If Congress wants the EPA to do something different, let's have that discussion, section 112, other sections of the Clean Air Act, of the mandate that Congress has given the EPA. Let's not use a court procedure, a stay, that won't become law to short-circuit something that Congress has told the EPA to do. It is positively schizophrenic for Congress to require an agency to do something and then say we are not going to allow you to do what we told you to do.

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Mr. POLIS.

There is a way that our process works around here. If a rule is illegal, it will be tossed out by the courts. George Bush's attempt to implement the Clean Air Act, section 112, around brick kilns was tossed out.

What this bill does is says that, so long as there is a court challenge, there is some sort of presumption that the rule be tossed out and, therefore, an indefinite stay.

Now, there can be challenges all the time. The minute one fails, another one can be launched. No bones about it. This would indefinitely prevent this rule from ever taking effect with regard to brick kilns.

I have to say, Mr. Speaker, I haven't heard from a single constituent on this issue. Like the gentleman from Alabama, my constituents are angry. They are angry at Congress and worried about the direction of the country.

They want Congress to replace our broken immigration system with one that works and secure our southern border. They want Congress to return to fiscal responsibility and balance our budget. They want to make sure that college is affordable for the next generation. They want to make sure they have good jobs here at home.

They want to make sure that we encourage companies to locate and grow here in America rather than take tax advantages for relocating overseas or inverting their headquarters to occur overseas, as occurs with today's Tax Code. Those are some of the many issues that my constituents want me to talk about here.

I just had a townhall meeting last week in Fort Collins, Colorado, the biggest city in my district. About 100 people came. Not a single person was angry about brick kilns.

But, yes, there was a lot of anger there about some of the issues I indicated: people frustrated with why Congress refuses to act on making college more affordable, why Congress has refused to act in making sure that Medicare and Social Security are there for the next generation, and why Congress doesn't put our country on the course of fiscal responsibility and reduce our debt-to-GDP ratio.

But, instead, we are debating a bill that won't become law without allowing amendments here on the floor. That is what a closed rule means. If it was an open rule, I would be able to offer my amendment to close the small site exemption with regard to fracking, but I can't.

We are debating a bill that won't become law, attacking a rule that is merely implementing what Congress has told not just this President, but any President, to do. George Bush tried. Obama tried.

It is because Congress, under the Clean Air Act, tells the executive: You have to do this under section 112. And then, when they do it, there is the issue that went through the courts.

That is appropriate. That is their role. But when they implement what Congress has told them to do, we are saying: No. There is an indefinite stay.

That is what this bill would do.

I know, Mr. Speaker, regardless of what they think about any of the policies or rules put out by this administration or any administration, it is not the place of Congress to issue stays on rules. It is the role of the courts.

The Constitution established three branches in our government for a reason under our Constitution. It is the courts' job, not Congress' job, to interfere with the legal process.

It is not Congress' job to take that responsibility away from the judicial branch, especially with a bill that would actually encourage more frivolous litigation by rewarding frivolous litigation and endless appeals when we already have too much of that in our court system.

Mr. Speaker, I urge my colleagues to vote ``no'' to defeat the previous question, which, if we succeed on that vote, we can immediately get to hold hearings on the President's budget proposals.

I urge my colleagues to vote ``no'' on the rule as well, again, a closed rule, not allowing amendments here on the floor of the House.

I yield back the balance of my time.

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Mr. POLIS. Mr. Speaker, on that I demand the yeas and nays.

The yeas and nays were ordered.

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