Regulatory and Legal Reform

The NAM continues to push back against proposed revisions to the National Ambient Air Quality Standards for particulate matter.

What’s going on: On Tuesday NAM Director of Energy and Resources Policy Chris Morris urged the Environmental Protection Agency to withdraw its recent proposal to lower the primary annual particulate matter standard from 12.0 µg/m3 to between 8.0 and 10.0 µg/m3.

The big picture: “Manufacturers in the U.S. have become leaders in environmental stewardship and sustainability,” Morris pointed out.

• “Across the board, levels of major pollutants have declined dramatically, and the United States is outpacing our global competitors in air quality improvements,” he said.
• “According to the EPA, the U.S. has reduced six common NAAQS pollutants, including PM₅, by 78% between 1970 and 2020. Additionally, the EPA data show that PM_2.5 air quality has improved 43% between 2000 and 2020.”

The new regulations: The EPA’s new standards would impose a substantial economic burden on manufacturers, Morris continued.

• “First, there is the direct economic exposure manufacturers will face, which is a measure of the gross value added or employment in the manufacturing sector that could be affected or [placed] at risk,” he said.
• “Second is the indirect economic exposure of manufacturing as a result of a stricter PM₅ standard. This refers to the effects on the sector as the consequences are felt throughout the supply chain due to decreased overall investment.”

By the numbers: The EPA has estimated the total cost of the controls required for compliance with the proposed standard at up to $1.8 billion—and that figure could go higher, the agency admitted.

• This expensive policy will lead to job losses and fewer new manufacturing facilities, as well as fewer modernizations and expansions to existing facilities, Morris continued.

Unattainable standards: What’s more, some areas in the U.S. are “in non-attainment” with the current PM_2.5 standard, so a stricter standard will only put them further out of compliance, Morris told the EPA.

What should be done: To keep U.S. manufacturing competitive and to safeguard well-paying jobs, Morris said, the EPA should maintain the current annual particulate-matter standard of 12.0 µg/m3 and withdraw its proposal. 

The NAM in action: The NAM has been rallying manufacturers across the country to speak out against the EPA’s proposal and calling on Congress to oppose these harmful regulations.

• During the 2023 State of Manufacturing address last month, Timmons announced the launch of a nationwide campaign to maintain these standards in order to protect manufacturers.

The NAM’s Competing to Win Tour in Europe continued this week with a stop in Poland, where NAM President and CEO Jay Timmons highlighted manufacturers’ support for Ukraine both in his high-level meetings and in media interviews.

Solidarity with Ukraine: At the U.S. Embassy in Warsaw, Timmons and U.S. Ambassador to Poland Mark Brzezinski met to advance manufacturers’ shared solidarity with Ukraine and the importance of strengthening U.S. commercial relationships with Poland and other democratic allies.

• During a meeting with Poland’s Minister of Economic Development and Technology Waldemar Buda, Timmons discussed the direct support and investment by U.S. manufacturers in Poland, which they can use as a base for rebuilding Ukraine after Russia’s defeat.

Humanitarian work: A visit to UPS Poland highlighted the company’s humanitarian work to support refugees from Ukraine.

• UPS has suspended operations in Russia and Belarus and has partnered with several organizations on the ground in Ukraine to provide emergency funding, in-kind support and core relief supplies to refugees.
• UPS has transported and donated millions of meals, winter coats, medical supplies, blankets and other items to aid refugees, while also providing support to its Ukrainian employees and their families.

Interview on “Morning Joe”: Live from Warsaw, Timmons appeared on “Morning Joe,” where he emphasized the power of commerce, and manufacturers, to preserve, protect and expand democracy.

• “[T]he most important thing is to support our allies that believe in democracy. I’m very concerned right now that we have a divide between democracies and authoritarian regimes,” said Timmons. “And American business, I think, can help lead the way to strengthen and support democracy.”
• “I don’t think that there’s any threat quite as grave as what we’re seeing coming out of Russia right now,” he continued. “President Xi, and his visit from China to Moscow, I think really sends a pretty big warning signal for the West.”
• The show covered Ukrainian President Zelenskyy’s recent address to the NAM Board of Directors and spotlighted the NAM’s leadership on the world stage—as well as that of individual companies.

Roundtable discussion: Timmons’ last event in Warsaw was a roundtable discussion at AmCham Poland with representatives of manufacturers in the United States that operate in Poland.

• The meeting highlighted the importance of supply chain resilience, energy security and robust, market-opening trade agreements in the work ahead in rebuilding Ukraine, which require a mobilization of capital, industry and governments not seen in Europe since 1945.
• The meeting also covered opportunities for American businesses to support Poland in these efforts and to promote democratic values.

The last word: “Forty years ago this month, President Reagan warned the world not ‘to ignore the facts of history and the aggressive impulses of an evil empire,’” said Timmons. “A [statue of President Reagan] stands across the street from the U.S. Embassy in Warsaw.”

• “As Poland generously absorbs and supports nearly 2 million Ukrainian refugees who have been displaced by Russia’s barbaric and unprovoked war, Reagan’s words are just as important today as they were then.”

The Environmental Protection Agency has proposed the first federal limits on two chemical compounds that were used widely in everyday products for decades, The Wall Street Journal (subscription) reports.

What’s going on: “The agency is proposing maximum allowable levels in the nation’s public drinking-water systems for two compounds in a class of chemicals known as perfluoroalkyl and polyfluoroalkyl substances, or PFAS, which were used for decades in carpeting, clothing, food packaging, firefighting foam and other consumer and industrial products. The EPA also said it would regulate four other PFAS chemicals by requiring treatment if the combined level reaches a certain concentration.”

• The suggested limits under the Safe Drinking Water Act are part of a larger move by the EPA to tighten rules around “forever chemicals”—so known because they take years to break down—owing to “a growing number of studies [that] have shown links to a variety of cancers, thyroid disease, high cholesterol and other issues.”
• The two individual chemicals under discussion are known as PFOA and PFOS, which various industries began using in the 1940s for their ability to resist grease, corrosion, water and stains, as well as to douse fires.

Why it’s important: While the EPA says the change would prevent numerous deaths and illnesses, not everyone is assured of the soundness of the science behind it—and others say it would cost companies unnecessarily.

• Critics of the new proposed standard say the chemicals are still necessary components of numerous products, from cell phones to medical devices, and there are no viable alternatives. Moreover, when used correctly, PFAS compounds do not pose a significant health risk to humans or the environment, they say.
• One source told the Journal the new limits “would cost water systems $40 billion” in compliance-related spending.

 Our take: “Everyone deserves access to clean drinking water, and manufacturers continue to do their part to ensure we achieve the highest levels of environmental stewardship,” said NAM Director of Energy and Resources Policy Chris Morris.

• “Manufacturers in America are committed to the communities in which they live and serve and are dedicated to protecting the health, safety and vibrancy of those communities. The EPA’s proposal leaves many questions unanswered on the feasibility of meeting these new standards and the economic impacts this will have on communities, especially rural communities and consumers. The NAM looks forward to continuing to work with the EPA to ensure everyone has access to clean drinking water.”

The NAM is opposing the Federal Trade Commission’s proposed ban on all noncompete agreements, pushing back on a move that would damage the manufacturing industry. We talked to NAM Vice President of Infrastructure, Innovation and Human Resources Policy Robyn Boerstling about the NAM’s reasoning on this crucial issue.

What noncompetes do: As Boerstling put it, manufacturers use noncompete agreements only for select workers handling their most sensitive information.

• That information might include the details of the company’s most sophisticated processes and strategies, which cannot be allowed to fall into competitors’ hands.
• Not only do these employees handle the keys to a company’s success, Boerstling added, but they are the recipients of significant investments in time, compensation and training.

The potential damage: Banning noncompetes would force companies to revamp their human capital operations completely, argued Boerstling.

• It would mean that trade secrets or other essential information might walk out the door and be exploited not only by competitors, but also by foreign adversaries.
• Manufacturers would be forced to put in place burdensome controls or silo parts of their operations from each other, which would result in less training for employees and less efficiency across various divisions.
• In a highly competitive industry—not to mention during significant economic uncertainty—that is a high price to pay, Boerstling pointed out.

Why not something else? Noncompete agreements are a critical tool for protecting manufacturers’ intellectual property, and alternatives like nondisclosure agreements are not sufficient, said Boerstling.

• In fact, in IP cases, courts look specifically at whether a company has employed noncompete agreements in deciding whether that company has taken reasonable steps to protect their property and processes.

FTC in the wrong: The FTC is wrong to put forth this blanket ban on a number of counts, said Boerstling.

• First, the rulemaking concerns an issue of “vast economic and political significance” that is beyond the scope of the FTC Act.
• Second, the regulation of these agreements has been handled successfully at the state level, a situation that works well for manufacturers.
• Third, the FTC is being too simplistic by striking at all noncompetes at once. Complex technical industries require noncompetes for good reason, as their sophisticated IP is the core of their business.
• Last, this ban is set to be retroactive, which is sure to cause confusion for both employers and employees.

What the NAM wants: The NAM objects to the FTC’s proposal in its current form and asks that it be withdrawn until the FTC can propose a more tailored approach that allows for sensible exemptions, said Boerstling.

Manufacturers across the United States have long been leading the way on sustainability. From outpacing international competitors on emission reductions to making investments in clean technologies, the industry has implemented best practices for others to use and blazed a trail for them to follow.

NAM Director of Energy and Resources Policy Chris Morris emphasized manufacturers’ track record during a hearing before the Environmental Protection Agency last week, where he explained to policymakers that their proposed air quality rules would stifle rather than enhance manufacturers’ efforts. Here’s what he had to say.

A record of leadership: “Our industry has championed environmental stewardship at every turn, and our members have invested heavily in new processes and technologies that have made manufacturing in the U.S. cleaner and more sustainable than ever,” said Morris.

• “This innovation in the manufacturing sector has played a key role in the reduction of air pollution we have seen over the last 50 years.”

Manufacturers’ impact: “Across the board, levels of major pollutants have declined dramatically, and we are outpacing our global competitors in air quality improvements,” said Morris.

• “According to the EPA, the U.S. has reduced six common NAAQS pollutants, including PM2.5, by 78% between 1970 and 2020.”
• “Additionally, EPA data shows that PM2.5 air quality has improved 44% since 2000. Manufacturers are committed to ensuring that progress continues.”

The challenge: New proposed regulations from the EPA would have a number of negative effects, Morris noted.

• Tighter air quality standards would make permitting more difficult, raise compliance costs and make it harder for manufacturers in the United States to compete with companies abroad—especially at a time when manufacturers are concerned about the country’s economic outlook.

The path forward: Morris urged policymakers to ensure that current regulations are fully implemented before they propose new ones, and to work together with innovative manufacturers on smart solutions.

• “The U.S. has some of the best environmental standards in the world, and American manufacturers are consistently reducing emissions, conserving critical resources, protecting biodiversity, limiting waste and providing safe products and solutions so others in our country can do the same,” said Morris.
• “But in order to maintain our environmental leadership, we need better regulations.”

The last word: “In our view, environmental protection and a thriving economy are not mutually exclusive,” said Morris. “We can have both—but it requires working together toward a constructive solution. Manufacturers are committed to smart, strong environmental safeguards and improving the lives of all Americans so that no one—and no community—is left behind.”

NAM President and CEO Jay Timmons has been making the most of his time on the road during the Competing to Win Tour, delivering a strong message to congressional leaders about top manufacturing priorities. He did so again yesterday on permitting reform with congressional leaders in Washington:

• “Some of the biggest obstacles preventing manufacturers—and therefore the entire American economy—from reaching our full potential are the permitting delays, red tape and complicated bureaucracy that have plagued us for decades,” he told the leadership of several House committees.

He went on to cite a number of different areas in which permitting reform is desperately needed, including . . .

Energy: Permitting reform is crucial to almost every sector of energy manufacturing, from oil and gas all the way to nuclear and clean energy technologies.

• “For example,” Timmons noted, “the siting of and infrastructure for hydrogen power generation and transportation and for advanced, small modular and micro-nuclear reactors have progressed far too slowly.”
• “Manufacturers depend on access to reliable and affordable energy to expand, which is why we support reforms that would foster transparent, streamlined and timely federal regulatory processes for the siting, permitting and licensing of energy delivery infrastructure of all types,” he continued.

Transportation: Manufacturers also need railroads, highways, airports and ports to run their operations and get their products out the door.

• “Yet obtaining permit approvals for these projects often takes years, especially when reviews are piecemeal and duplicative,” Timmons pointed out. “[M]any companies are waiting on the sidelines because transportation infrastructure construction moves too slowly—or not at all.”
• “To ensure the broad and beneficial impact of [the bipartisan Infrastructure Investment and Jobs Act of 2021] … it is critical to clear permit backlogs and ease processing timelines,” he said.

Resource development: Manufacturers prioritize sustainability, Timmons noted, but “restricting access to America’s abundant natural resources hinders our ability to strengthen domestic supply chains.”

• “The inconsistent administration of critical mineral policies, for example, has limited our ability to use a wide range of resources that lie on and beneath federal lands—resources that are critical to producing everything from cars to medical devices,” he added.
• “Streamlining resource permitting and leasing policies will help stabilize manufacturing supply chains, control costs for consumers, reduce our reliance on foreign countries and create jobs in the U.S.”

Environmental standards: Manufacturers have worked steadily to improve U.S. air quality, helping to “lead our country to the cleanest air in the modern world,” said Timmons.

• “Unfortunately, when federal agencies continually revise standards before current standards are met and before states have implemented prior mandates, they create unpredictability”—which may mean that new manufacturing facilities get built in other countries instead, where they don’t face as rigorous standards.
• However, if Congress makes regulations more predictable and consolidates review processes, the U.S. “can continue to build on its strong record of environmental stewardship by boosting domestic manufacturing, which is environmentally cleaner than international competitors,” Timmons concluded.

Congressional intent: Congress should make sure that permitting reform isn’t just passed, but also implemented as easily as possible, Timmons advocated.

• It should conform to “on recent and future statutory streamlining efforts such as One Federal Decision,” while making sure federal agencies don’t duplicate each other’s efforts and waste time.

The last word: “Permitting affects every aspect of our lives—from our economic security to our national security,” said Timmons. “[I]f we seize this opportunity to lead, there is no limit to what manufacturers in the United States can accomplish—for the good of our people and for the good of the world.”

A draft rule to force federal contractors to make specific and detailed climate disclosures is burdensome, unrealistic and costly to manufacturers. It should be rescinded completely, the NAM told the Federal Acquisition Regulatory Council this week. 

The background: In November, the FAR Council—which is composed of the Defense Department, the General Services Administration and NASA—proposed a rule to require climate disclosures from federal contractors, many of whom are manufacturers. The proposed rule would require contractors with more than $50 million in annual federal contract obligations to:

• Disclose their greenhouse gas emissions, including so-called Scope 3 emissions (those attributable to the suppliers and customers throughout a company’s value chain);
• Set targets to reduce their greenhouse gas emissions within a decade (including Scope 3 emissions) based on standards set forth by a third-party nonprofit organization, the Science-Based Targets initiative, and get the targets validated by SBTi; and
• Disclose their climate-related financial risks pursuant to a framework written by a second nonprofit group, the Task Force on Climate-Related Financial Disclosures, and submit those risk disclosures to yet another nonprofit (CDP, formerly the Carbon Disclosure Project).

Why it’s a problem: Compliance with the proposed rule would be difficult, if not wholly unfeasible, prohibitively expensive and time-consuming, NAM Managing Vice President of Tax and Domestic Economic Policy Chris Netram told the FAR Council. It would also impact small businesses within federal contractors’ supply chains given the rule’s focus on Scope 3 disclosures and target setting.

• “The proposed rule would impose significant costs on manufacturers as they work to meet the complex—and in many cases impractical or impossible—requirements of the rule,” Netram said.
• “As a result, manufacturers providing critical goods and services to the federal government, as well as the businesses throughout their supply chains, will be directly and adversely impacted … The national security of the United States could likewise be harmed, as critical contractors could be disqualified from supplying the military, and the required disclosures could expose sensitive information to America’s adversaries.”

 What can be done: The FAR Council should rescind the proposed rule in its entirety, Netram said, but if it is intent on making changes, “it must re-propose a rule with substantial revisions to make its requirements more cost-effective and workable for federal contractors and more narrowly tailored to the actual climate-related risks to which the federal government is exposed.”

The Environmental Protection Agency’s recently issued rule governing regulation of “navigable waters” is unnecessary, confusing and inconsistent—and the NAM stands ready to work with Congress to overturn it.

The background: In December, the EPA and the U.S. Army Corps of Engineers announced the new regulation, which repealed the Navigable Waters Protection Rule and altered the definition of “Waters of the United States.”

• This month, House Transportation and Infrastructure Committee Chairman Sam Graves (R-MO) introduced a joint resolution of disapproval of the rule under the Congressional Review Act. An identical measure was introduced in the Senate.
• The NAM this week hailed the congressional moves. “Manufacturers welcome action from Congress to challenge the EPA’s proposed WOTUS Rule,” said NAM President and CEO Jay Timmons.

What’s going on now: Ahead of a Transportation and Infrastructure Committee hearing Wednesday, NAM Senior Director of Energy and Resources Policy Nile Elam urged the “educat[ion of] the public and policy stakeholders regarding the immense permitting regulatory efforts necessary under local and state jurisdictions, and the need for a complementary WOTUS rule that advances permitting protections at the federal level while providing certainty for the regulated community.”

• Though many Supreme Court decisions have “touched on” the definition of navigable waters, neither the court nor the EPA has clarified sufficiently, Elam told Water Resources and Environment Subcommittee Chairman David Rouzer (R-NC) and Ranking Member Grace Napolitano (D-CA).
• The new rule also “expands federal jurisdiction beyond traditional navigable waters,” Elam said. “Because of these expansions and ambiguous terms, the careful balance between local and state regulators is unpredictable and can leave permit seekers with little guidance, aside from the need for more time and money to achieve their permitting requests.”

What should come next: Congress must work with stakeholders, the EPA and the Corps on creating clear, predictable and common-sense WOTUS regulations, Elam told the committee. Doing so will “enhanc[e] manufacturers’ ability to deliver their goods, expand their operations and grow their workforce.”

Manufacturers have long led the way in efforts to reduce air pollution and improve air quality. Yet, new proposed regulations from the federal government will work against these efforts instead of bolstering them, stymying critical progress and destabilizing economic growth at a time when both are more important than ever.

The challenge: The Environmental Protection Agency is considering a new rule that would impose stricter air standards on particulate matter known as PM2.5 (i.e., particles that measure two and a half micrometers or less in diameter). This rule would enact significant top-down restrictions, forcing manufacturers to change their operations abruptly and without any support.

The reality: For years, manufacturers across all sectors have been developing smart, innovative ways to use energy, water and other resources more sustainably—all while boosting economic growth and creating good jobs at the same time.

• Today, manufacturing in the U.S. is cleaner and greener than at any other time in history, largely due to a revolution in how manufacturers produce, use and recycle energy and resources.
• Across the board, levels of major pollutants have declined dramatically over the past few decades. Thanks to existing regulations and a culture of innovation, the U.S. is far outpacing global competitors in environmental stewardship.

By the numbers: According to the EPA, the U.S. reduced six common pollutants covered by National Ambient Air Quality Standards, including PM2.5, by 78% between 1970 and 2020. In fact, PM2.5 levels alone have dropped a full 44% since 2000.

The impact: These new regulations could be devastating for manufacturers and for the climate. Here are just a few of the negative repercussions:

• An additional regulatory burden on businesses will drain resources from innovative manufacturers, posing additional hurdles to the investment in research and development that fuels progress in energy efficiency and climate action.
• Making permitting harder could also jeopardize new clean energy projects that America needs to address climate change.
• The standards will hinder onshoring, resulting in continued manufacturing abroad—which is less clean than manufacturing in the U.S. The EPA’s proposal undercuts U.S. competitiveness and will not further the goal of global emissions reduction.
• New regulations could damage an already-slowing economy, increasing costs and constraining job growth at a time when Americans are grappling with record inflation.

Our view: Rather than imposing new and unnecessary obligations on manufacturers, the federal government should focus on enforcing the strong regulations that are already in place and give manufacturers the space to find better solutions.

• “The EPA’s announcement . . . [about reconsidering] the PM 2.5 standard will only further weaken an already slowing economy,” said NAM President and CEO Jay Timmons. “Let manufacturers do what they do best: innovate and deploy modern technologies to protect the environment, while creating jobs and strengthening the economy.”

NAM in action: The NAM is rallying manufacturers to speak out against the EPA’s proposal and calling on Congress to oppose these harmful regulations.

• Manufacturers can show their support by sending an email to decision makers in Washington, explaining the real impact of this damaging proposal and urging them to stand up against unnecessary regulations.

Join in: There is an EPA hearing to discuss the proposal on Feb. 21. To participate, be sure to sign up soon—the registration deadline is Feb. 16.

The NAM is urging the Federal Trade Commission to extend the comment period on its recently proposed rule to ban noncompete agreements in the workplace, citing the rule’s broad economic impact and significant legal implications.

The background: On Jan. 5, the FTC proposed a rule that would prohibit employers from imposing noncompete agreements on workers, calling such clauses “an unfair method of competition” and saying they prevent the forming of new businesses and result in lower wages for all workers.

What the NAM is doing: The NAM opposes the proposed change, and the association joined a coalition of other business groups this week requesting that the public comment period, which runs through March 20, be extended by 60 days. The reason: the proposal would have far-reaching legal consequences for manufacturers, including risks to intellectual property.

• “A sufficient comment period is needed to ensure the regulated community can fully assess [the rule’s] effects,” the coalition told FTC Secretary April Tabor. “Moreover, there are significant legal questions that must be addressed by commenters.”
• “Among the issues raised by the FTC action is whether the Commission has the legal authority to issue such a rulemaking, the rule’s potential preemption of the numerous state laws and regulations on this issue, and how such preemption will alter the regulated community’s legal obligations.”

Working for manufacturers: The NAM is exploring all possible avenues, including congressional oversight and litigation, to mitigate the impacts of the proposed rule. Litigation is contingent on financial support from NAM members, as all of the NAM’s activities in the courts are funded outside of member dues.