By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Law Clerk
The CLEAN Future Act (Act), introduced in its current form on March 2, 2021 by the House Committee on Energy and Commerce, is designed primarily to achieve net zero greenhouse gas emissions by 2050. Reflecting the environmental policy goals of the new administration, which Democrats in Congress are seeking to effectuate, the bill addresses a broad range of topics, including clean electricity standards, funding for electric vehicle infrastructure, building code changes, climate risk disclosure requirements, Superfund program reforms, and environmental justice initiatives.
The most recent of the Congressional hearings on the legislation was held on May 13, 2021, to address proposed reforms of the Superfund program, including backlog problems, decreased public funding for cleanups, and a heightened risk of additional releases of hazardous substances from contaminated sites due to more frequent occurrences of natural disasters. Thus, for example, the Act would require that potentially responsible parties at sites in the Superfund program provide financial assurance of their capability to cleanup such facilities, to a degree consistent with exposure to risk of additional releases of hazardous substances. The bill also would impose a 10-year deadline on the remediation of such sites with a higher risk of additional releases due to climate-related concerns.
The hearing was held by the Subcommittee on Environment and Climate Change of the House Committee on Energy and Commerce. Committee Chairman and CLEAN Future Act sponsor Frank Pallone, Jr. (D-NJ) noted several problems with the Superfund program that provisions in the legislation and other bills were intended to address. To restore funding to the Superfund Trust Fund and uphold CERCLA's "polluter pays" principle, the congressman advocated for his proposed Superfund Polluter Pays Act, reinstating the taxation of polluting industries as was required at the inception of the Superfund program. Chairman Pallone also asserted that increased releases of hazardous substances due to extreme weather events exacerbated by climate change make the Superfund program even more important today, and that preventing releases is preferable to cleaning them up.
There also were four witnesses who presented testimony: J. Alfredo Gómez, Director for Natural Resources and Environment at the U.S. Government Accountability Office; Amanda Goodin, Staff Attorney at Earthjustice; Laurie Droughton Matthews, Of Counsel at Morgan, Lewis & Bockius LLP, speaking on behalf of companies that comprise the Superfund Settlements Project; and Amy Catherine Dinn, Managing Attorney of the Environmental Justice Team at Lone Star Legal Aid.
Mr. Gómez agreed with Congressman Pallone's statement regarding the increasing problems at Superfund sites caused by climate change, and also discussed the GAO's report on the EPA's management of Superfund sites. While praising aspects of EPA's approach, he stated that "EPA has not clarified how its actions to manage risks from these effects [of climate change] at nonfederal NPL [National Priorities List] sites align with current agency goals and objectives," and that "EPA officials did not always have direction to ensure that they consistently integrate climate change information into site-level risk assessments and risk response decisions."
Ms. Goodin spoke in support of the bill's financial assurances provisions. Section 631 of Act would "promulgate requirements that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with impacts of climate change and extreme weather events on those facilities." She defended the need for this provision against Republican members of the committee who argued the requirement would impose an unreasonable financial burden on businesses.
Ms. Matthews, representing an organization of companies that are potentially responsible parties at multiple Superfund sites, viewed the proposed program reforms less favorably than the other witnesses. She criticized the proposed financial assurance requirements as "untethered to the release or threatened release of hazardous substances so there is potential for regulations that stray beyond CERCLA's purpose and goals."
Ms. Dinn's testimony focused on environmental justice aspects of the Superfund program, and she discussed in depth the releases of hazardous substances and other problems concerning extreme weather events that occurred at specific Superfund sites in Texas. In addition to supporting the financial assurance provisions in the Act, Ms. Dinn voiced particular support for Section 636, which would establish a 10-year deadline for conducting response actions at sites that are potentially subject to additional releases due to extreme weather conditions.
The nature of the Committee members' comments and questions at the hearing exhibited a sharp partisan divide; Democrats overwhelmingly expressed support for reforms to the Superfund program, while Republicans concomitantly strongly opposed the proposed legislation. Although members of both parties addressed the issue of a backlog of sites in the Superfund program, Republicans praised the increase in removal of sites from the NPL during the Trump administration, which Democrats countered did not reflect an increase in the actual rate of sites being remediated.
The future of the CLEAN Future Act is unclear, with no further committee meetings on the bill currently scheduled. In light of the opposition to the proposed legislation by Republican committee members, as reflected in this and previous hearings, the bill appears unlikely to pass in its current form. Nonetheless, some of the bill's provisions plausibly may become law, perhaps through the budget reconciliation process.