July 31, 2006

HEADLINE

ATS Joins Supreme Court Case on Clean Air Act

 

The ATS and several other health groups filed an amicus curiae – or friend of the court brief – in the Clean Air Act case to be heard by the U.S. Supreme Court.  The U.S. Supreme Court will hear the appeals argument in the EPA v. Duke Energy Corporation regarding interpretation and enforcement of Clean Air Act.

 

The key issue in the case is the definition of “modification” as it is applied to two separate programs within the Clean Air Act – the New Source Review program (NSR) and the Prevention of Significant Deterioration (PSD) program.  The NSR program requires that when industrial facilities modernize their physical plants, they must install available pollution control equipment.

 

The PSD program requires that industrial facilities conduct appropriate upkeep of their physical plant to prevent deterioration of the physical plant that could result increased pollution.  The Clean Air Act, in the section that covers the legislative authority of the New Source Review Act, defines modification as any change that results in an increase in the hourly rate of pollution emissions.  EPA, in its rule making effort on the PSD program, defines “modification” as any change the results in an increase in the total annual pollution emissions.   

 

In this case, Duke Power conducted renovations on 8 of their power plants in North and South Carolina.  The end result of the maintenance is that Duke is able to run these plants several hours a day longer (at the same pollution/hour ratio) than prior to the maintenance effort – thus increasing total pollution output.

 

EPA sued saying Duke had violated the PSD program by increasing total annual pollution output.  Duke says definition of modification (increasing total annual output) in PSD program is invalid, and the definition of modification in the NSR program (increasing pollution/hour ratio) enacted by Congress should apply.  Because the maintenance Duke conducted on their power plants did not increase the pollution/hour ratio (even though they are running the plant more hours per day) they claim they are in compliance with the Clean Air Act. 

 

Two lower courts have sided with Duke.  The Supreme Court recently agreed to hear appeals of this case.  The current case law on this subject is confused with precedents having been established that could support the Duke position (United States v. Alabama Power ) and decisions that support the position of EPA (New York et. al. v. EPA and United States v. Cinergy Corporation

 

In the amicus brief, the American Thoracic Society discusses the adverse health effects from emission for power plants and encourages the Supreme Court to support that EPA position that increasing annual pollutions emissions is in violation of the spirit and letter of the Clean Air Act.

Physician Practice

80 Senators Sign SGR letter

 

Eighty Senators joined Sen. Kyl (R-AZ) and Sen. Stabenaw (D-MI) in a letter to Senate Majority Leader Bill Frist requesting that the Senate take action to avert Medicare cuts in physician payment.  The letter stresses the need to prevent the schedule 5% cut in Medicare reimbursement to physicians to ensure continued access to medical care for Medicare beneficiaries.

 

As reported earlier in the ATS Washington Letter, without Congressional action, Medicare reimbursements to physicians are expected to be cut by 5% in 2007 with further cuts expected through 2009.  The reason for the cuts is a flaw physician payment formula, know as the sustainable growth rate factor - or SGR – that unfairly penalizes physicians for growth in Medicare spending.

 

Research

Senate Provide Less Than One Percent Increase for NIH, Cuts CDC

 

In July, the Senate Appropriations Committee passed the FY07 Labor Health and Human Services Appropriations bill (L-HHS).  The FY0y L-HHS bill provides funding for the National Institutes of the Health (NIH), Centers for Disease Control (CDC) and the rest of the Public Health Services and the Departments of Labor and Education. 

 

The bill provided a $28.55 billion for NIH, an increase of $220 million (+0.78%).  Institutes of interest to the respiratory community received the following funding: 

 

* NHLBI $2,924.3 million (+$4.5 million)

* NIAID $4,395.5 million (+$15.2 million)

* NIEHS $641.3 million ($0.6 million)

* NINR $137.8 (+$0.6 million)

* Fogarty International Center 66.8 million (+$.0.5 million).

 

The bill provides $6.195 billion for the CDC, a cut of $185.4 million from current funding.  Programs of interest to the respiratory community received the following: 

 

* TB control program received level funding

* National Institute of Occupational Safety was cut by $5 million

* Chronic Disease Prevention program budget was increased by $9.7 million including a $800,000 increase for tobacco control related programs.

 

The full Senate is not expected to consider the FY07 L-HHS bill until after the November elections.

 

Senate Level Funds VA Research Program

 

In related action, the Senate Appropriations Committee passed the FY07 Military Construction and Veterans Affairs Appropriations bill which provides funding for the Department of Veterans Affairs.  The committee provided $412 million for the VA research program – equal to current year funding and an increase of $13 million over the Administration’s request.  Included in the Senate bill was an earmark of $15 million for Persian Gulf War Illness research.

 

Earlier this summer, the House Appropriations Committee passed its version of the bill which also provided $412 million – level funding - for the VA research program.

 

The Senate action is a disappointment for supporters of the VA research program.  Supporter had hoped that the support of 60 Senators on a Dear Colleague letter in support of the VA research program might have influenced the Appropriations Committee to provide an increase for the program. 

 

The Senate bill also provided $28.7 billion for the VA medical care budget an increase of $3.1 billion over current year spending.

 

The full Senate is not expected to consider the Military Construction/VA bill until after the elections.

 

President Vetoes Cell Stem Legislation

 

Last week, President Bush vetoed legislation – the Stem Cell Research Enhancement Act - that would have expanded federal funding for stem cell related research.  Earlier this summer, the Senate took up the House bill that had been passed in 2005.  The Senate passed the House measure with a broad bipartisan majority. 

 

Immediately after the veto, the House of Representatives again voted on the legislation, but failed to muster the 2/3 majority needed to override the presidential veto. 

TUBERCULOSIS

In July, Representatives Sherrod Brown (D-OH) and Heather Wilson (R-NM) introduced the Comprehensive Tuberculosis Elimination Action of 2006.  This legislation would expand the federal activities on TB control and elimination including:

 

The Comprehensive TB Elimination Act will:

 

* Authorize increased funds for TB training, treatment and education programs at CDC

* Authorize and expand CDC sponsored demonstration activities on TB elimination

* Expand research and research training programs at the National Institutes of Health

* Authorize funding for the “Blueprint Plan for TB Vaccine Development”

* Expand existing TB training programs at the NIHFogartyInternationalCenter

* Create loan repayment opportunities for physicians/researchers enrolled in NIH TB training programs

 

The American Thoracic Society will work with our colleague organizations to encourage Congressional consideration of the legislation in the near future.

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Points of Contact

Gary Ewart	Senior Director, Government Relations
Nuala Moore	Senior Legislative Representative
Joe Kirby	DC Office Administrator