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Fossil Fuel Polluters Urge EPA to Break Law, Leave Americans Unprotected Against Soot Pollution

John Walke

Posted December 13, 2012 in Curbing Pollution, Health and the Environment, U.S. Law and Policy

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And ye shall know them by their desperation.

Lobbyists for oil, coal and dirty power companies have mounted a desperate, last-minute campaign to stop EPA Administrator Lisa Jackson from strengthening clean air standards protecting all Americans against dangerous soot pollution.

This is a tough sell, considering the stronger safeguards EPA is expected to adopt will save thousands of lives, and avoid many more thousands of asthma attacks, heart attacks and strokes. And a recent poll conducted for the American Lung Association found that people support stricter limits on soot by a better than 2-1 margin.

EPA is bound by a court-ordered agreement with the Lung Association to finalize those standards by tomorrow. And all indications are pointing to EPA following the science and the law to strengthen national clean air standards necessary to safeguard all Americans, with an adequate safety margin to protect vulnerable groups like children, the elderly and asthmatics.

But the American Petroleum Institute (API) and a coalition of dirty power companies called the Electric Reliability Coordinating Council (ERCC) cannot tolerate that outcome.

What else is new, you ask?

What’s new is the degree to which this air pollution lobby is willing to baldly urge EPA to break the law in order to carry out Big Polluters’ wishes.

In a letter [pdf] from ERCC to Jackson today, the coalition – led by the Southern Company – urged Jackson to violate the court agreement (called a consent decree) and refuse to adopt stronger clean air standards by tomorrow’s deadline. They wrote: “EPA should exercise its authority under the Clean Air Act to withdraw or withhold consent from the final order or agreement requiring EPA to finalize the rule by December 14, 2012….”

Allow me to translate. ERCC is urging Jackson to violate a judicial consent decree, where the penalty for such violation would open Jackson to being held personally in contempt of court, and personally liable for sanctions that could include monetary fines or even jail. 

Funny how the ERCC letter forgot to mention the jail part.

I also rather like the letter's lawyerly flourish at the beginning of a sentence that goes on to urge Jackson to break the law – “EPA should exercise its authority under the Clean Air Act....” – when of course EPA has no authority under the Clean Air Act to violate judicial consent decrees.

And of course ERCC’s lobbyists know this, since one of them headed EPA’s air program under the Bush administration. To my knowledge, the Bush EPA never violated a judicial consent decree and never followed the course that ERCC is urging here.

Of course Lisa Jackson will not violate a judicial consent decree either. Under that decree, EPA had until Monday of this week to seek an extension beyond tomorrow’s deadline, if the agency so chose. EPA did not do so. And if the ERCC lobbyists did their homework, they already know about this feature of the decree.

So why ask Jackson to violate a judicial consent decree at the last minute when you know she won’t? Desperation?

More likely the agenda behind this far-fetched request is to lay the foundation for howls about haste and process fouls after EPA strengthens the clean air standards tomorrow. The ERCC letter already hints at these themes, arguing – ludicrously – that EPA is moving in a “rushed manner” to update clean air standards that were last set lawfully in 1997. Standards that should have been strengthened in 2006 but were not because the Bush EPA refused to do so and thereby violated the Clean Air Act.

Let’s recall that history, from one of my earlier posts

The current annual standard of 15 micrograms per cubic meter was set in 1997. EPA last examined the scientific literature on PM2.5 in 2006, when the Bush EPA defied the scientific evidence and kept standards for PM2.5 at a level that was not protective of public health. At the time, the Clean Air Science Advisory Committee (CASAC) recommended [pdf] that EPA set annual standards for PM2.5 at 13 to 14 micrograms per cubic meter and daily standards at 35 micrograms per cubic meter. Instead, EPA proposed an annual standard of 15 micrograms per cubic meter and a daily standard at 35.

Disregarding public outcry and strongly worded letters [pdf] from CASAC noting that the annual standard did not reflect the advice of that scientific body, the Bush Administration adopted final standards maintaining the annual standard at 15 micrograms per cubic meter. Public health groups immediately challenged this decision in court.

In 2009, the federal court invalidated [pdf] the annual PM2.5 standard of 15 and sent it back to EPA, because EPA failed to sufficiently explain how the Bush Administration standards protected public health with an adequate margin of safety, as the Clean Air Act requires. The court directed the agency to address this and other issues in their next review of PM2.5 standards, scheduled for 2011.

EPA finally rectifying that illegal behavior, and relying upon long-established science to strengthen clean air standards that should have been updated in 2006, that’s what ERCC views to be “rushed.”

Now wait, you say, is it really the case that the individual who headed EPA’s air program during this period of lawbreaking is the same individual now lobbying for a dirty power coalition that still wants to delay and block stronger clean air safeguards?

Yes, yes it is. Welcome to Washington.

Elsewhere in Washington yesterday lobbyists for the American Petroleum Institute attacked stronger safeguards against soot pollution with their own appeals to EPA to break the law.

The oil lobby wants EPA to keep the annual soot standard at the same level of 15 that a federal court already has found to be unlawful. You read that right. The court looked dimly upon the Bush EPA’s refusal to follow the near-unanimous recommendation of its science advisors, and ruled that the agency in 2006 had failed to explain how a standard of 15 was necessary to protect public health with an adequate margin of safety, as the Clean Air Act requires.

So now the oil lobby wants EPA to refuse to follow science that is even more robust and that calls for an even more protective soot standard. (CASAC now has recommended lowering the annual PM2.5 standard to a level as protective as 11 micrograms per cubic meter. NRDC has joined over 650 health and medical professionals [pdf] in supporting this more protective level.)

In a gesture that was cheekier than a colony of nude sunbathers, API actually titled its media advisory “API calls on White House to Avoid Unnecessary New Particulate Matter Standards.” Get it? “Unnecessary”?

Unfortunately for the oil lobby, assertions in a press release aptly capture the paucity of their scientific and legal arguments that stronger clean air standards are unnecessary to protect public health with an adequate margin of safety.

Just goes to show if you don't have the science and law on your side, and you don't have public health or public opinion on your side, maybe all you do have is desperation.

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Comments

SteveDec 14 2012 12:25 PM

EPA frequently misses legal deadlines. This is nothing new for EPA, so dont make it sound like it is something they would not do.

John WalkeDec 14 2012 12:29 PM

Steve, thanks for your comment. I am unaware of EPA missing legal deadlines that result in violating judicial consent decrees and inviting contempt of court sanctions. That is what ERCC was urging and what I was criticizing. If you know of such examples, I invite you to identify them here, with citations to assist me and other readers.

Comments are closed for this post.

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