Are we to believe that the Bush administration pursued a cynical agenda over the past eight years to delay and avoid air pollution reductions by utility companies, ending up with no significant, mandated reductions in smog, soot, toxic and global warming air pollution from power plants? Or was that just the outcome based on some combination of intentional risk-taking, negligence, unintended consequences and/or bad luck? What explains the Bush administration’s air pollution agenda for power plants?
We interrupt this previously scheduled post for an important announcement: NRDC bloggers are participating during the upcoming week in the inaugural NRDC Bulwer-Lytton © Environmental Blogging Competition to select the worst opening sentence of a post on Switchboard. The competition follows the deliciously dreadful example of the Bulwer-Lytton Fiction Contest, a literary parody contest that San Jose State University sponsors each year. This year’s awesomely awful winner in the actual contest can be read here.
NRDC’s competition will follow the same model, with the difference being that the opening sentence of a Switchboard post must address an environmental or energy or public health topic that an NRDC blogger otherwise would cover. Plus, the blogger must go on to complete a post that otherwise would stand on its own on Switchboard.
The competition will run for a week, starting today, and the winner will be announced at the end of the week after next, following voting by Switchboard’s bloggers. Switchboard readers are encouraged to cast their votes by commenting on individual posts, and those votes will be factored heavily into the final tally.
Let the contest begin!
I’m taking the liberty of not responding to my own questions above for now, in order to kick off the contest for my fellow Switchboard bloggers. I will explore the questions above and related issues in a more focused post later. Stay tuned.
And in the meantime, read more of the Bulwer-Lytton Fiction Contest entries here.
]]>On Friday, the Bush administration quietly filed a motion with the Supreme Court seeking 30 more days, until September 17th, to petition the Supreme Court for a writ of certiorari to hear the case. This filing suggests that the Bush administration is still circling the block, begging the Solicitor General to come outside to take the leash.
It is a fair bet that the Solicitor General’s office has resisted those desperate entreaties thus far, however, which is likely a partial explanation for Friday's extension request. The filing declares that the Solicitor General has not even determined whether to file a petition for a writ of certiorari in this case. (The utility industry followed suit this evening and sought the same extension as the Bush administration.)
When the administration appealed the D. C. Circuit’s scathing ruling overturning CAMR, not one judge on the entire D.C. Circuit voted to grant rehearing. There was no sound legal basis to reverse the court’s ruling then and there is no basis to do so now.
Indeed, since the court’s February 8th CAMR decision in State of New Jersey v. EPA, the D.C. Circuit has now vacated in its entirety the EPA’s Clean Air Interstate Rule (CAIR). This is important to the fate of CAMR as well: in addition to being squarely unlawful, CAMR itself required no mercury reductions for its entire first phase, from 2005 to 2014. Instead, EPA admitted to relying totally on incidental mercury reductions achieved under the first phase of CAIR’s SO2 and NOx cap-and-trade program.
With CAIR now vacated, CAMR represents an even more starkly ineffectual approach to mercury regulation than it did before the court’s February 8th ruling. (And of course CAMR ignored the dozens of other dangerous air toxics released by power plants.) Thus, even in the highly improbable event that the Supreme Court were to reverse the D.C. Circuit’s CAMR ruling, EPA under the next administration would be forced to re-open and overhaul CAMR anyway, due to the vacatur of CAIR.
But as I’ve pointed out previously, for the administration CAMR has never been about doing what’s legal or responsible or protective – it’s been about delay: delaying deep and timely reductions in all hazardous air pollutants from power plants by pursuing a knowingly unlawful strategy. I suspect that the administration’s political forces do not care much more about the impact of CAIR’s vacatur on CAMR than they did about the plainly illegal design of CAMR from the start: what matters to these forces and the utility industry is succeeding with their nonsensical “Queen of Hearts” legal theories in order to avoid the deep and timely reductions in all hazardous air pollutants from power plants that the Clean Air Act requires.
The remote possibility of the Supreme Court granting cert. in the CAMR litigation; the tax dollars and government and private resources wasted on the administration’s obsessive pursuit of that goal; and the need to redo CAMR anyway from scratch in the next administration even if the administration prevails -- all of this counsels against filing cert. petitions with the Supreme Court at all.
EPA should take this dog back to its office and let it romp around with the litter of other scruffy dogs that the courts have rejected.
]]>But I’m making an exception today, because the latest talking points from the air pollution apologists over at the Electric Reliability Coordinating Council (ERCC) are so deliciously revealing that it merits taking a few bites out of their spiel.
Yesterday NRDC petitioned EPA to abandon an extremely harmful, illegal Clean Air Act rulemaking that the Bush administration is pursuing as a parting gift to the utility industry before the administration leaves office early next year. So ERCC issued talking points in response to NRDC’s petition – explaining why some dirty utilities desperately want the administration to issue that rulemaking. And those talking points inadvertently revealed the dirty face of the Bush administration-utility industry agenda better than if I had described their position for them.
These competing documents concerned Bush EPA rulemaking proposals issued in 2005 and 2007 that effectively would exempt all of the nation’s existing coal-fired power plants – the country’s largest industrial sources of smog and soot pollution – from an important Clean Air Act program called “new source review” (NSR). I have covered EPA’s destructive NSR rulemaking in a prior post.
Readers of this blog will recall that on July 11th, the federal appellate court in Washington, D.C. overturned the Bush administration’s “Clean Air Interstate Rule” (CAIR), which applied to power plants in the eastern U.S. In February, this same court also overturned the Bush administration’s “Clean Air Mercury Rule” (CAMR), which had established an unlawful cap-and-trade program for mercury emissions from power plants nationwide, delaying even its inadequate measures for nearly two decades.
CAIR and CAMR were always just the regulatory versions of pieces of the “Clear Skies” power plant legislation that the Bush administration had attempted unsuccessfully to ram through Congress from 2003 to 2005, a topic I also covered in an earlier post. Crucially, the destructive NSR rulemaking that EPA has been pursuing since 2005 and threatens to finalize by the end of this administration is also just the regurgitated version of the NSR power plant exemption in the failed Clear Skies bill.
So it should come as no surprise that CAIR and CAMR were the central rationales for EPA's adoption of the deregulatory NSR exemption for power plants. EPA’s argument was that CAIR and CAMR do enough to clean up power plants. . . eventually, by the mid-2020’s, and as much as the administration was willing to require, even if that leaves most power plants in the country lacking advanced pollution controls for smog and soot. So why do we need a protective NSR program, the Bush EPA argued?
Of course, EPA never has provided a coherent response to the following uncomfortable facts:
But let’s put aside those irritating points for present purposes.
NRDC petitioned EPA Administrator Johnson yesterday to abandon the NSR rulemaking following the court vacaturs of CAIR and CAMR. We pointed out that with EPA unable to achieve the air pollution reductions from power plants that the agency had been counting on under those two rules, there is no sound basis for adopting the purely deregulatory NSR rulemaking that would allow power plant emissions to increases by many, many tens of thousands of tons each year by EPA’s own reckoning. In the NSR rulemaking, EPA’s projections about local and national SO2 and NOx emissions, average emissions rates, control device installations, and public health and environmental impacts all were based upon the assumption of CAIR and CAMR’s operation – both of which have now been struck down in court.
We shall see what EPA does. In the meantime, the response to NRDC’s petition by lobbyists for ERCC is refreshingly revealing about the polluting agenda of at least ERCC’s utility company members.
But first a word about the ERCC: when you Google “Electric Reliability Coordinating Council,” the first hit pretty much says it all: “Energy industry coalition opposing the Environmental Protection Agency's (EPA) enforcement of New Source Review (NSR) for upgraded power plants.” ERCC is comprised of a small number of utility companies, including the Southern Company -- the dirtiest or second dirtiest power plant company in the country, depending on the pollutant, based on 2006 emissions. Southern, not coincidentally, also has been a longstanding defendant in NSR enforcement actions by EPA since 1999. ERCC is housed out of the Washington, D.C. office of the law firm, Bracewell & Giuliani, home to Jeff Holmstead, the former Bush EPA political official who headed EPA’s air office from 2001-2005, and was largely responsible for CAMR, CAIR, Clear Skies and the administration’s persistent attacks on the NSR program.
Turning to the ERCC talking points. On five different occasions, the ERCC talking points urge adoption of the NSR rulemaking to improve the reliability, efficiency and safety of power plants. The order of these words changes, but these are the recurring talking points.
What’s so deliciously revealing about this spin is the words that never appear, the words that utility pollution apologists dare not utter, the improvements that the pending NSR rulemaking will not deliver: reduced air pollution, better air quality, improved public health, greater environmental protections.
The pending NSR rulemaking will allow and result in more air pollution, and even utility industry lobbyists cannot bring themselves to claim otherwise. Not one word in the nearly 700-word talking points claims that this NSR rulemaking would reduce air pollution and protect public health better than current law. Because that would be just plain wrong.
Indeed, the practices that the ERCC talking points promote – reliability, efficiency and safety – are code for more highly polluting activities for which utilities wish to escape control. They know that these worthy practices can be pursued under current law, so long as significant pollution increases from these activities are managed or if pollution simply does not increase. But the aim is to undertake these more highly polluting practices at the expense of public health, air quality and the environment by escaping responsibility for cleaning up the pollution increases.
A neat trick if you can get away with it. So keep your eyes on EPA to see if Administrator Johnson helps the utility industry and Bush administration get away with it before leaving office – even if EPA’s flawed, centerpiece air quality rules (CAMR and CAIR) are no longer in place to partially deal with the pollution increases that the NSR rule will deliver. And in the meantime, keep your ears open to the utility industry's and administration’s pollution propaganda, and listen especially closely for those clean words they dare not utter.
]]>Once upon a time, to be exact in the year 2000, then-Governor Bush ran for the office of the Presidency on a campaign pledge to develop strong legislation reducing harmful emissions of SO2, NOx, mercury and CO2 from power plants. After abandoning the CO2 element of that campaign promise in early 2001, the new Administration developed a strong “straw” proposal covering the other three pollutants. Following outcries from certain elements of the utility sector and the industry’s trade association, the Administration abandoned the EPA straw proposal and ending up introducing its Clear Skies legislation in February 2003. The eventual bill introduced before the Senate Environment and Public Works Committee, the “Clear Skies Act of 2005”, S.131, failed to be reported out of Committee following an unsuccessful vote in March 2005.
Declining to advance the Administration’s Clear Skies legislation to the Senate floor was the right thing to do in 2005 and would be the right thing to do were that bill re-introduced in Congress today.
As I noted in my testimony opposing the Clear Skies bill before the Senate Environment and Public Works Committee in February 2005, the Clear Skies legislation delayed by a decade or more the day when millions of Americans would have air quality that meets public health standards. Current law requires delivery of clean air by 2009 for smog and 2010 for soot pollution. The Administration’s bill allowed those deadlines to be pushed back to 2022 – and it systematically undermined the tools available to states and EPA to achieve even that lax deadline.
Following the Senate Committee vote in March 2005 that failed to report the Clear Skies legislation to the Senate floor, the Bush Administration set about to carry out the central features of its Clear Skies legislation -- for good and for ill – through a series of EPA regulations under the current Clean Air Act. On the productive side, the EPA’s Administrator Johnson signed the Clean Air Interstate Rule the very next day after the Senate Committee vote on the Clear Skies bill – making clear how intertwined the two efforts were.
CAIR, of course, established emissions caps for SO2 and NOx emissions from power plants, corresponding roughly to the reductions achieved from power plants in the eastern U.S. under the Clear Skies bill. CAIR also accelerated the phase II compliance deadline and caps for SO2 and NOx under Clear Skies from 2018 to 2015.
However, EPA has since that time simultaneously carried out a systematically destructive agenda to manipulate, constrain and weaken Clean Air Act requirements to ensure that the law would not demand greater and earlier emissions reductions from power plants than the administration was prepared to impose in CAIR and, before that, Clear Skies.
For the past five years, EPA has placed the Clean Air Act on the proverbial Procrustean bed from Greek mythology – cutting off statutory authorities that went too far for the liking of the Administration and the utility industry, while stretching other statutory provisions on the rack of tortured legal interpretations, all to ensure that the current Clean Air Act conformed to the Clear Skies political agenda that the Administration had been unable to persuade Congress to adopt.
The more apt metaphor for the Administration’s Clear Skies political agenda, however, may be that of a straitjacket. This is because the Clean Air Act contains ample legal authority to demand deeper, faster and more effective emissions reductions from power plants than the Administration was willing to impose.
Thus, the Administration needed to, and repeatedly has, placed the Clean Air Act and EPA in a policy and legal straitjacket to ensure that the agency – and states, as it turned out – would not impose greater obligations upon the utility sector through regulatory authorities than the Administration had been willing to impose in the failed Clear Skies legislative proposal.
The Administration's Clear Skies straitjacket agenda was a central feature of the Clean Air Interstate Rule -- and as it turns out the court decision vacating that rule.
Midway through the court's CAIR opinion, the court repeats the Clean Air Act obligation requiring states to include adequate provisions in their state air plans "prohibiting emissions ‘within the State from . . . contribut[ing] significantly’ to downwind nonattainment.” The court then puzzles over the fundamental question of how EPA arrived at CAIR’s SO2 emissions reduction levels -- corresponding to the rule's two important emissions caps -- that supposedly dealt with those significant contributions from upwind states:
Apart from the arbitrary Title IV baseline, EPA has insufficiently explained how it arrived at the 50% and 65% reduction figures. Though unclear, these numbers appear to represent what EPA thought would be “‘a cost-effective and equitable governmental approach to attainment with the NAAQS for [PM2.5].’”
Immediately after this sentence, the court drops a footnote that contains surely the most insightful, revealing, yet understated use of the word "coincidentally" in a decision by the D.C. Circuit. In this footnote, the court stumbles upon an awareness of the Administration's Clear Skies straitjacket agenda, realizing that CAIR’s SO2 caps were plucked not from thin air but from Clear Skies:
EPA briefly summarized a series of analyses and dialogues with various stakeholder groups in which the participants considered “regional and national strategies to reduce interstate transport of SO2 and NOx.” See CAIR, 70 Fed. Reg. at 25,199. The most recent of these, EPA’s analysis in support of the proposed Clear Skies Act, considered nationwide SO2 caps of, coincidentally, “50 percent and 67 percent from . . . title IV cap levels.” Id.
The court's use of the word "coincidentally" here signals an impressive understanding of a dirty little secret that Clean Air Act practitioners have known for the past five years: the Bush Administration worked backwards from its Clear Skies legislative proposal to institute the emissions caps and design features of CAIR, rather than working forward from the Clean Air Act to achieve the emissions reductions necessary to address transported pollution at the levels and according to the schedules consistent with Clean Air Act obligations to downwind states.
In my 2005 Senate testimony opposing the Clear Skies bill, I described a speech that the power industry’s top air pollution lobbyist in Washington delivered to a coal industry group in April 2001. Unbeknownst to him, his talk was being transcribed, and later would be posted online.
The power lobbyist told his coal industry audience that EPA had been planning to use the agency’s existing authority under the Clean Air Act to require large and prompt reductions in air pollution from coal-burning power plants. However, he told them, the lobbyist and his allies in the White House had a plan: the Administration would introduce legislation creating a weaker, slower program – one that would allow coal plants to emit more pollution for much longer than EPA had been planning to require under the Clean Air Act. The lobbyist promised that the weaker, slower cleanup requirements in the new legislation would be something “that we can all live with and that someone else can’t undo.”
The legislation that the power lobbyist proudly described in April 2001 was introduced in 2003 as the Administration’s “Clear Skies” proposal. And the Clear Skies straitjacket agenda that EPA has carried out and promises to carry out until the Administration’s last days, continues to reflect that understanding reached between the White House and utility industry lobbyists in the very first months of the Administration’s first term.
As we confront the end of eight years in which the Bush Administration devoted its priorities to what the utility industry desired or could "live with," we are left with little good, and must all live with the aftermath of the Administration's grim bargain.
]]>This is the second in a series of posts I will have on that important judicial and regulatory development, drawing upon the lengthy written testimony I submitted for this morning's Senate hearing. Today's post consists of the oral statement I delivered at the hearing.
* * * * *
EPA’s “Clean Air Interstate Rule,” or CAIR, represented an important first step forward to reduce dangerous levels of SO2 and NOx emissions from power plants, and to reduce the devastating public health and environmental toll caused by these emissions.
NRDC and other public health and environmental groups, accordingly, had intervened on EPA’s behalf in litigation in the United States Court of Appeals for the D.C. Circuit, defending CAIR against industry challenges that sought to weaken CAIR, reduce its scope and effectiveness, and disrupt its implementation.
The July 11th decision by the D.C. Circuit vacating CAIR in its entirety was a significant setback to the public health and environmental gains embodied in CAIR, and the crucial need to reduce dangerous emissions from power plants in the eastern half of the country.
But the court’s decision also represents an opportunity to get it right where CAIR did not -- to take not just the first step but the necessary steps, cost-effective and feasible steps, to eliminate dangerous levels of power plant emissions and deliver healthy air to all Americans.
With the long-overdue strengthening of EPA's public health standards for PM2.5 in 2006 and ozone in 2008, we know now with greater urgency what we already knew in 2005 when CAIR was adopted: allowing power plants to produce air pollution at excessive and unhealthy levels for as long as two decades -- before reaching a 70% reduction target that still would remain unprotective -- imposes tremendous harms upon the American people. Even with the setback to CAIR represented by the court’s July 11th decisions, we can and must achieve greater than 70% reductions in SO2 and NOx emissions from power plants well before the end of the next decade.
I want to make one simple point about the court’s decision and CAIR, in order to highlight a mistake that we should not and cannot afford to make again. In faulting the unlawfulness of CAIR, the court realized that the Bush Administration had worked backwards from a political agenda to institute the emissions caps and design features of CAIR. In this case, that political agenda was represented by the Administration’s Clear Skies legislative proposal. The court found that EPA had not worked forward from the Clean Air Act to achieve the emissions reductions necessary to address transported pollution at the levels and according to the schedules consistent with Clean Air Act obligations to downwind states. Or consistent with the need to deliver healthy air to citizens in the affected states.
The mistake was to let a political agenda dictate not just how EPA carried out the Clean Air Act, but how far EPA went to reduce transported air pollution from upwind states to victimized downwind communities. How far EPA went to lead utility companies to spend reducing air pollution while other local businesses were being forced to spend far more to achieve far less pollution reduction. And finally that political agenda dictated how far EPA went to protect public health. At each turn, EPA stopped short of doing what was necessary, what was feasible, what was protective and – ultimately – what the law required, due to this political agenda.
We can do better. We must do better. Let me be very direct why.
EPA had projected that CAIR would avoid 13,000 American lives being cut short each year beginning in 2010, and avoid the loss of 17,000 lives each year starting in 2015. These are very impressive health gains that we are in danger of losing if we do not mandate the important pollution controls that CAIR would have required, and do so expeditiously.
My written testimony includes state-by-state breakdowns of the early adult deaths avoided under CAIR. For New York and Ohio, for example, 1,200 deaths would have been avoided in each state, each year beginning in 2010. And in 2015, 1,500 fewer people in each state would have had their lives cut short by power plant air pollution.
CAIR accomplished these significant health benefits by requiring power plant operators to spend, on average, $500 per ton of pollution reduced in 2010, and on average $700 per ton of pollution reduced in 2015. Meanwhile, air quality regulators today – and for many years in recent memory – are requiring other types of businesses in other industrial sectors to spend $3,000 dollars to $6,000 dollars, even $15,000 dollars, for the same ton of pollution reduced.
But the Administration refused to require power plants to achieve greater pollution reductions at modestly greater average costs per ton due to the Administration’s political agenda that the court later found to be unlawful.
If this sounds like an economically unsound approach to air quality – it is. But it is also an irresponsible approach to public health. Just contemplate the thousands upon thousands of additional American lives that we could save each year by bringing the amount that utility companies spend to reduce a ton of pollution more in line with the costs that other local businesses spend to reduce the same ton of pollution. Power plant companies still would end up spending much less per ton of pollution than other businesses but we could actually deliver healthy air, in a timely fashion, to the entire eastern half of the country and most of the western U.S. outside of certain challenging areas in California. And we would save tens of thousands of additional lives over the next decade.
One of the little understood consequences of the Administration’s political agenda that created CAIR, as well as actively harmful EPA rules associated with CAIR, is that thousands of additional lives were to be sacrificed to power plant air pollution each year in order to save utility companies compliance costs that were and are one half or one fifth or even one tenth the compliance costs being borne by local businesses in the Midwest and Southeast and New England. And these local businesses individually do not even emit one percent of the air pollution emitted by your typical power plant. So we are getting far fewer pollution reductions at far greater costs per ton from local businesses than from utility companies.
The current Administration has managed to avoid answering for this – for the harmful, economically irrational and fundamentally unfair political choice that lies at the heart of its 8 year long air pollution agenda for the electric power industry.
The next administration and Congress will now have the opportunity to confront those facts and concerns honestly and fairly, in order to solve the country’s air quality problems in the most effective way possible.
]]>Turns out there is another connection between kidney stones and Bush administration environmental policies. Global warming -- about which the administration has done nothing -- reportedly will contribute to increases in kidney stones, according to a study by University of Texas researchers published today in the Proceedings of the National Academy of Sciences.
With increased warming of the planet, researchers projected increased incidences of dehydration that in turn are known to contribute to the formation of kidney stones.
"This study is one of the first examples of global warming causing a direct medical consequence for humans," said Margaret Pearle, professor of urology at University of Texas Southwestern and senior author of the paper.
"When people relocate from areas of moderate temperature to areas with warmer climates, a rapid increase in stone risk has been observed. This has been shown in military deployments to the Middle East for instance."
The Bush administration. Global warming. Kidney stones.
Makes you want to grimace all around.
On Friday July 11th, the U.S. Court of Appeals for the D.C. Circuit struck down the Bush administration’s signature air quality accomplishment, the “Clean Air Interstate Rule.” CAIR established cap-and-trade programs for SO2 and NOx air pollution from power plants in 28 eastern and Midwestern states plus the District of Columbia.
EPA had projected that upon full implementation of the rule, in the mid-2020’s, CAIR would have reduced SO2 emissions in the CAIR region from 9.4 million tons to 2.5 million tons (73% below 2003 levels); and reduced NOx emissions from 3.2 million tons to 1.3 million tons (61% below 2003 levels). Upon full implementation, EPA had projected that the rule would have prevented 17,000 premature deaths, 22,000 non-fatal heart attacks, 12,300 hospital admissions, 1.7 million lost work days, and 500,000 lost school days.
The lion’s share of these public health benefits would have resulted from the SO2 program component of CAIR, due to reductions in deadly fine particle pollution (PM2.5) associated with SO2 emissions.
The overwhelming majority of utilities in the CAIR region was prepared to comply with CAIR and did not challenge the rule in court. Neither did the utility industry’s trade associations, which are otherwise regular litigants opposing EPA clean air rules.
Instead, the SO2 trading program was challenged by a fringe element of utility companies led by Duke Energy in Charlotte, North Carolina, a coalition that also included FPL Group, AES, and South Carolina Electric & Gas. The NOx trading program was challenged by Entergy and FPL Group.
The Court vacated both the SO2 and NOx trading programs based on these challenges, as well as a challenge by the state of North Carolina that CAIR was not protective enough of the state’s citizens.
I focus here on Duke Energy’s challenge to the SO2 trading program for three reasons: first, because of the tremendous health benefits that would have flowed from the SO2 (and PM2.5) emissions reductions; second, because of Duke’s leading role in authoring the legal papers; and third, because of Duke’s public reaction to its litigation victory overturning CAIR.
Soon after the court’s ruling Friday morning, and in the days that followed, Duke Energy issued the following surprising and perplexing reactions to the ruling:
At best, these protestations are irresponsible and recklessly naive: had Duke Energy not intended to vacate CAIR, it should not have brought the lawsuit challenging the rule. The overwhelming majority of utility companies in the country, along with the industry's major trade associations, did not challenge the rule.
Moreover, any decent attorney practicing in the D.C. Circuit would know that the frequent practice in that court is to vacate unlawful rules in their entirety, rather than letting the rules remain in place and remanding them to EPA for correction.
But Duke Energy's position was represented in the D.C. Circuit by more than just decent attorneys. Duke's lead attorney on its legal brief was a former veteran air pollution attorney from EPA's Office of General Council, well-known and well-regarded within the corporate environmental bar. The attorney presenting the oral argument on Duke's behalf was a former classmate of mine at Harvard Law School and editor of Harvard's Environmental Law Review. She presented a well-crafted oral argument that lacerated CAIR’s SO2 rules to their very core. Both of these highly capable attorneys surely understood the D.C. Circuit practice of vacating unlawful agency rules.
Let’s get one other thing straight too: the main challenge to the NOx trading program reflected a disagreement over how CAIR allocated emissions allowances. The challenge to the SO2 trading program did not – it was a fundamental statutory challenge to EPA’s very authority, alleging that “EPA’s SO2 CAIR rules violate statutory mandates and congressional intent, far exceeding EPA’s CAA authority,” to quote from Duke Energy’s brief.
At worst, Duke Energy's assertions are disingenuous nonsense: Duke Energy's legal brief represented a frontal assault on CAIR's SO2 trading program, the rule’s most important element by far from a public health perspective since the dramatic SO2 cuts reduced the death toll caused by PM2.5 pollution. Duke's brief did not chip around the edges or raise claims simply that the rule was arbitrary, both of which EPA might have been able to fix on remand without the rule being torn down. Instead, Duke's brief argued that CAIR was fundamentally incompatible with another statutory provision, indeed another statutory title, Title IV -- the Clean Air Act's acid rain program. So it hardly could come as a surprise to Duke that the court would agree with Duke's own legal arguments and overturn CAIR.
Indeed, a high-level EPA official called me shortly after Duke's legal brief was filed, expressing alarm and anger that Duke was mounting a frontal assault on the heart of CAIR. EPA and administration officials had believed that the utility sector was prepared to comply with CAIR and would not be challenging its very underpinnings. EPA expected that some of the peripheral states included in CAIR's trading region might file lawsuits, arguing their states or portions of their states should not be covered by CAIR. EPA even anticipated that the NOx trading program’s allowance distribution method might face challenge from the cleaner electricity generators that CAIR had disadvantaged, based on the Bush administration’s insistence on bending over backwards to reward coal-heavy utility fleets (which includes Duke Energy). (CAIR was important and a necessary step forward, neither of which should be confused with perfect, a topic I hope to cover in another post.)
But this official explained that EPA was completely caught off guard by Duke's direct challenge arguing that the SO2 trading program itself was legally incompatible with the statute. This official urged me to respond forcefully to Duke’s challenge, since NRDC and other environmental groups had intervened on EPA's behalf, opposing the industry lawsuits mounted against CAIR. We did, to no avail.
But let's not dwell on logic or circumstantial evidence that Duke Energy intended to vacate CAIR.
Here is the clincher, quoting the last two sentences of Duke Energy's legal brief in the lawsuit: "For the foregoing reasons, EPA's CAIR SO2 rules exceed EPA's authority and are arbitrary, capricious and an abuse of discretion. This Court should vacate them."
Disingenuous nonsense it is.
Duke Energy urged the Court to vacate the SO2 rules. The Court did.
Rather than protesting too much about the truth, perhaps Duke Energy's time would be better spent trying to explain its contradictions and hypocrisy to the tens of thousands of Americans whose deaths will be hastened by the company's air pollution and litigation victory over the coming years.
On Tuesday, March 11th, the President personally flexed his expert scientific muscles, and overruled the public welfare standard for ozone selected according to the scientific judgment of the EPA Administrator. Instead, the President ordered adoption of an ozone standard preferred by White House economists, a standard that EPA recognized to “lack scientific support.” And in doing so, the President relied upon the very cost considerations that the Supreme Court had ruled illegal in 2001.
The President’s last-minute intervention on March 11th – the day before EPA’s court-ordered deadline for adopting the ozone standards -- precipitated a late night legal flurry within the administration. As this March 13th 14th front-page Washington Post article describes it:
Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.
EPA’s Administrator, Stephen Johnson has confessed ignorance about the advice delivered during the meeting between the Solicitor General and White House officials that night. Nor is there any indication that EPA’s own attorneys were even involved in that meeting. EPA staff waited patiently for written White House orders to be delivered on the 11th. None came.
The written White House orders still had not arrived by Wednesday morning, March 12th. EPA staff continued scrambling to concoct a justification for the President’s directive, rewriting the response to public comments documents, preamble and final rule. The Administrator still had not signed the final rule despite the ticking court-ordered clock because the President’s plug-in justification had not showed up at the agency. Hastily, EPA postponed its scheduled 1:00 press conference until after 6:00. A woman caller to the Administrator’s office that afternoon was mistaken for the White House Office of Management and Budget’s Susan Dudley, and greeted with this response, “Is that you again, Susan? We’re working as fast as we can.” Chaos reigned at EPA.
Finally, the letter from the White House’s Dudley to Administrator Johnson arrived late that afternoon. The letter laid down the President’s order, which EPA dutifully repeated in the preamble to the final rule, moments before Johnson signed it.
Reasoned decisionmaking running its course at EPA.
EPA, EPA, “Therefore” Art Thou: Immediately after the preamble sentence quoting the President’s dictate, a sentence follows in which the revealing word “therefore” resounds with the force of a cowboy boot landing on the back of the neck of a lassoed calf: “EPA’s decision therefore also reflects the view of the Administration as to the most appropriate secondary standard.”
You gotta admire the moxy of the beleaguered EPA staffer that included the word “therefore” in that sentence, since it confirms that EPA’s decision followed logically and unavoidably from the President’s order: POTUS says, EPA does. I also rather like the cheeky irony of the word “also” in that sentence, as if to say “Why looky there, Stephen Johnson’s decision also just so happened to parrot the President’s view.”
CYA: The remarkable preamble paragraph disclosing the President’s interference and dictate peters out with a cursory, whimpering testament to the Administrator’s independence that not even the sentence’s author must have believed: “While the Administrator fully considered the President’s views, the Administrator’s decision, and the reasons for it, are based on and supported by the record in this rulemaking.” In EPA legal parlance, that throw-away claim is known as a CYA justification – Cover Your Administrator.
The Science of the Lambs: If you find yourself like EPA, unlucky enough to be a hapless lamb led to slaughter one day, the least you can do is raise a ruckus by bleating all the way to the slaughterhouse. The public docket and preamble for the final EPA rule disclose four remarkable instances of EPA standing up to the White House’s anti-scientific interference – in public, on scientific principle and (in the most incredible instance of them all) subversively.
(1) Long-time EPA staff and agency watchers are still marveling over the high-level mano a mano combat played out between the OMB’s Susan Dudley and EPA’s Deputy Administrator, Marcus Peacock, in back-to-back memos dated March 6th and 7th – just 5 days before the March 12th court-ordered deadline for adopting the ozone standards. This is where the OMB-EPA disagreement over the ozone public welfare standard came to a head – with EPA’s March 7th memo strongly rejecting OMB’s demands. That repudiation sent OMB scurrying to the President to put EPA in its place.
For one brief, shining moment, however, piercing through the smog of illegal and political cost considerations, EPA stood up very publicly to OMB’s reliance on illegal and unjustified factors to attempt to force EPA to adopt a less protective public welfare standard. Indeed, EPA’s March 7th memo reminded OMB acidly that (1) a unanimous Supreme Court decision prohibited consideration of cost in setting a public welfare standard; and (2) contrary to OMB’s claims, “EPA is not aware of any information indicating beneficial effects of ozone on public welfare. . . [or] beneficial effects on economic values or on personal comfort and well-being.”
It is exceedingly rare for high-level memos such as these two even to be written, much less placed in a public EPA rulemaking docket. Especially in this administration with its penchant for secrecy, where OMB-EPA disputes and deals are usually mediated in undocumented phone calls and meetings. EPA’s ultimately ill-fated defiance must be recognized in that light and the agency deserves credit for its courage, however fleeting.
(2) and (3): Even more extraordinary – unprecedented to my knowledge – is the very public disclosure of the President’s personal involvement at the 11th hour as Science Decider in Chief. This disclosure came in two forms: first, the preamble to EPA’s final rule, which revealed the President’s “conclusion” on “March 11, 2008” that EPA’s public welfare standard would be overruled and that the preference of OMB economists would prevail. The EPA rule preamble quotes two sentences out of the blue, oddly without any citation, explaining that the President’s decision was reached “consistent with Administration policy” – policies that the preamble pointedly does not elucidate.
The second disclosure came in the form of a letter that appeared in the rulemaking docket on March 13th -- the day after the rule was signed -- but had begun circulating by email on the 12th: a letter from the White House’s Susan Dudley to Stephen Johnson (mistakenly dated March 13th) officially notifying EPA of the President’s decision to overrule Johnson. This letter contained the mysteriously uncited sentences from the EPA preamble.
(4) The most revealing and astonishing disclosure of them all, however, is also the most subversive: EPA quietly placed into the public rulemaking docket the talking points on the ozone public welfare standard prepared for the Administrator’s meeting with the President. The document is prominently marked “Deliberative and Confidential” and dated March 11, 2008. The purposeful disclosure of this asserted confidential document comes from the same administration that waged the secretive Cheney energy task force battles, and exhibits steadfast resistance to Freedom of Information Act disclosures and Congressional oversight. EPA does NOT place documents like this in public rulemaking dockets – except when it wants to, as here.
And what do these talking points reveal that EPA and the Administrator needed to tell the President and OMB in the Oval Office? That the Supreme Court had unanimously disallowed cost considerations in the establishment of public welfare standards for air pollution; that EPA’s planned approach was “the most scientifically defensible” and “consistent with scientific advice” (italics in original); that EPA’s planned approach was “the most legally defensible”; that “the Administrator must decide how best to set” the public welfare standard; and finally, that “EPA has extensive record support for [EPA’s planned approach] and lacks scientific support for [OMB’s desired approach].”
Johnson was not persuasive in the Oval Office, and the President ordered adoption of the public welfare standard that EPA deemed to “lack[] scientific support,” as of March 11th at least.
As these disclosures show, however, EPA did succeed -- through a combination of pluck and subversiveness -- in revealing to the American people the heavy, anti-scientific hand of the President and White House. The disclosed EPA talking points especially serve as an indictment of that heavy handedness, as well as an indictment of the legal and scientific basis (or lack thereof) for the President’s decision.
Freaky Friday: As in the Disney movie “Freaky Friday,” Stephen Johnson awoke on Friday, March 14th to discover that he had re-possessed the body of the EPA Administrator. On a press conference call to announce EPA’s new rules for locomotive and marine diesel engines, Johnson lashed out at the Washington Post – and indirectly at yours truly for my quote in the Post article – for disclosing the role of the President in overruling Johnson. The Administrator huffed that – all evidence to the contrary – he, not the President, was the Science Decider in Chief.
Johnson also protested that there had been nothing “irregular” about the extraordinary events of March 11th and 12th discussed above. In the same breath, Johnson acknowledged that he had been completely oblivious to the Solicitor General’s involvement on March 11th weighing in with the White House on the potential (un)lawfulness of the position that the President forced upon EPA that afternoon. Thus did Johnson confirm that he and EPA were so out of the loop and marginal that they had not been invited to the big kids' party.
Meanwhile, over at the White House on Friday, White House spokesperson Tony Fratto all but declared that cost considerations had been the President’s driving motivation for overruling EPA’s public welfare standard. At that morning’s press briefing, Fratto responded to a question asking why the President had intervened in EPA’s smog decision. Fratto responded that the President’s involvement was driven by a concern over “how federal regulations impact communities.”
Thus were the President’s illegal motivations publicly clarified – not concern for science or what is “requisite to protect the pubic welfare,” as the Clean Air Act requires – but impacts on communities. In other words, costs – the very considerations that a unanimous Supreme Court had ruled illegal when setting public health and welfare standards under the Clean Air Act.
The memo from the White House’s Dudley and the EPA preamble “explained” the President's justification for his decision – if one can use that word – as a decision based upon "Administration policy." On March 12th, this impenetrable phrase was at best an empty vessel that the March 6th White House memo had publicly filled with illegal cost considerations, and at worst a smoke screen for — illegal cost considerations. On Friday, the White House spokesperson swept aside that smoke screen and publicly confirmed what we knew all along -- that “Administration policy” was code for the unlawful cost considerations that drove the President personally to overrule EPA’s public welfare standard for ozone, on the way to becoming Science Decider in Chief.
]]>Hebert's article laid bare contradictions between what EPA represented to the Court about its mercury rule, and contrary actions by agency officials before and after those representations:
While arguing in court that states are free to enact tougher mercury controls from power plants, the Bush administration pressured dozens of states to accept a scheme that would let some plants evade cleaning up their pollution, government documents show.
The article goes on to discuss example after example in which internal EPA emails and state officials confirm that EPA mounted a relentless campaign to pressure states not to restrict mercury pollution trading in defiance of EPA's wishes, and not to adopt state rules more protective than the lax and languid EPA approach.
In perhaps the most wan and non-responsive response from an EPA spokesperson this year -- which Hebert highlights as a stand-alone paragraph that reads like a punchline to a bad joke -- "An EPA official said the agency's job 'is not to pressure states.'"
Thanks for clearing that up, Mr. EPA Spokesman. We hope that's not the EPA's "job" -- so why was EPA doing it? Stay tuned as EPA predictably tries to deny it was pressuring states, contradicting numerous state officials and squirming uncomfortably when presented with the agency’s own emails.
So what did EPA represent to the Court in its legal brief in the lawsuit over the mercury rules? EPA claimed that its mercury trading rule (CAMR) gave states the discretion to determine "how best to allocate emission allowances to particular sources in the State, to allocate fewer than all the allowances, and even to opt out of the trading program." Addressing the approvability of state mercury programs that differed from EPA’s approach, EPA’s brief said: "the fact that a State chooses to submit a plan to EPA that allocates relatively fewer allowances, and therefore results in lower mercury emissions than is required by CAMR, is not a basis for disapproval of the plan by EPA."
Now here are some examples of internal EPA emails and letters in which EPA threatens disapproval of state mercury programs that depart from EPA’s preferred trading approach or restrict trading more than EPA wished. (Incidentally, my friend Vickie Patton at Environmental Defense deserves tremendous credit for her foresight in seeking these documents from EPA under the Freedom of Information Act; her tenacity in waging a bruising fight with EPA over her FOIA request; and her expertise in analyzing the mountains of EPA documents and understanding their scandalous significance. She supplied the following examples.)
That last sentence is an especially nice touch – the “deal breaker” with the Nevada program was the restriction on allowances that EPA would tell the Court was allowed in its legal brief exactly two weeks later. But EPA didn’t “need to elaborate too much” about this because, well, it would be damning and uncomfortable to EPA for the truth to be revealed.
Following these EPA threats, Montana and Georgia conformed their stronger state programs to EPA's demands, Nevada and Colorado did not.
The American people deserve answers to the questions why EPA was coercing states to weaken or abandon stronger mercury cleanup rules, and why EPA was misrepresenting its actions in legal filings with federal courts. The public deserves accountability here. To paraphrase Bob Dylan, let's hope a hard rain's a-gonna fall.
]]>Is this the first time a federal court has mocked EPA legal arguments by comparing them to characters from Lewis Carroll’s “Alice in Wonderland”? Technically yes. But in a 2006 ruling, these same three judges on the D.C. Circuit Court of Appeals struck down yet another harmful and illegal EPA Clean Air Act rulemaking. The judges wrote that EPA’s fanciful legal position would make sense “only in a Humpty Dumpty World,” citing Lewis Carroll’s “Through the Looking Glass.” One might have thought the Mad Hatter a more apt Lewis Carroll character to invoke in the Court’s mercury ruling, since that name arises from the tragedy of hat makers in 19th century England suffering neurological damage from mercury used to cure the felt in hats. But the Court here found EPA’s actions more similar to the capricious Queen of Hearts in “Alice in Wonderland," since EPA had -- in the Court’s words -- “substituted [its] desires for the plain text” of the law.
Was EPA delusional or receiving bad legal advice to believe this rule actually would survive legal challenge? While it is tempting to believe EPA suffered from the same mercury-induced neurological damage that drove hatters mad in 19th century England, a simpler and more sinister explanation fits. I am confident that EPA political appointees had been advised by agency attorneys (the country’s finest clean air attorneys) – and no doubt by Justice Department attorneys too – that the mercury rule was unlikely to survive legal challenge. But the EPA political bosses did not care, or were prepared to run that extremely high legal risk – which amounts to the same thing in practice. EPA would be carrying industry’s (mercury-laced) water either by: (1) achieving the remote possibility that the grossly weaker, slower rules would survive legal challenge; or (2) the real bet, delaying power plant toxic controls by 4-6 years and saving utilities billions of dollars even when those rules were destined to be struck down in court. EPA lost but industry still won.
What does the Bush EPA have against the word “any”? Is it personal? It is true that this court ruling marks at least the third time that the D.C. Circuit has struck down an EPA Clean Air Act rulemaking for violating a statutory prohibition by defying the plain meaning of the word “any.” A 2006 D.C. Circuit ruling overturned an EPA attempt to exempt from pollution controls emissions increases resulting from “any physical change,” which the EPA interpreted to mean virtually no physical change. And a 2007 D.C. Circuit ruling rejected an EPA attempt to exempt from rigorous pollution controls the emission of carcinogens and other air toxics from “any facility which combusts any solid waste material.” One school of thought holds that the EPA’s vendetta is not directed at the word “any,” but rather at any two-syllable word ending in “y.” This would also explain the agency’s ridiculous legal position in a Clean Water Act case where the D.C. Circuit rejected an EPA rule in which EPA interpreted the law’s restriction on “daily” pollution releases to waterbodies to allow daily limits to be ignored in favor of weaker “annual” limits. (Yes, EPA had argued daily meant annual.)
The real explanation is more encompassing and therefore more accurate: there is a prevalent strain within EPA -- fostered by but not limited to political appointees – that approaches the responsibility of statutory interpretation with a linguistic relativism that verges on nihilism. Under this EPA school of thought and practice, words in statutes mean whatever EPA wants them to mean. While legal doctrines afford federal agencies discretion in areas where they are considered expert, for example in scientific matters, EPA abuses these doctrines in order to distort the act of reading the English language into a policy play thing. This is precisely why one sees courts resorting to rebukes that sound “like a civics lesson by an exasperated instructor” and “The Collected Works of Lewis Carroll” to characterize the absurdities of EPA’s positions.
EPA’s strained legal interpretations and its repeated defiance of statutes and court precedents have already caused long-term damage to the standing of EPA before federal courts, especially in the D.C. Circuit. But the more pressing concern, frankly, is that D.C. Circuit judges will exhaust the list of characters from “The Collected Works of Lewis Carroll” before EPA corrects its lawless behavior.
EPA’s spokesperson decried the Court’s ruling, saying it now means “the U.S. has no national regulation to cut mercury from existing power plants.” Isn’t that a bad outcome for the environment? To put it bluntly, EPA’s claim is disingenuous prattle. The actual national regulation that EPA was relying upon between now and 2017 to require mercury reductions from power plants remains in place and was unaffected by the Court’s ruling. So EPA’s claim is intentionally and cynically misleading for uninitiated readers who naturally would not know the full facts about EPA’s rule.
The illegal EPA mercury rule struck down by the Court had established a model two-phase cap-and-trade program for mercury: it set the first "cap" in 2010, corresponding to 29% reductions in national power plant mercury emissions, and the second cap in 2018 corresponding to 70% reductions. But EPA itself admitted that the rule’s phase I cap would be achieved entirely from coincidental mercury reductions achieved by another regulation, the so-called Clean Air Interstate Rule (CAIR) that reduces SO2 and NOx emissions and thereby achieved incidental mercury reductions. In other words, EPA’s illegal mercury rule required no mercury reductions beyond what another regulation was already achieving for the next 9 years.
This other regulation, CAIR, was completely unaffected by the Court's mercury ruling, and so were the mercury reductions that CAIR will achieve. So the Court's decision will not result in less mercury reductions being required under federal law than EPA was already counting on under another regulation (CAIR) between now and 2017. EPA's wounded complaint that there is no national regulation of mercury as a result of the Court's ruling is utter nonsense as a practical matter, since its illegal mercury rule did not require greater mercury reductions than CAIR -- which remains in force -- until 2018 anyway. And while the mercury rule’s defenders will argue that the phase II cap would have driven early reductions prior to 2018, those reductions would not be nearly as great as what the Clean Air Act requires for all new and existing power plants, or achieved as early as what the law requires.
]]>Resort to the rhetoric of “averages” when it comes to obscuring and excusing air pollution.
A front page story in today’s Washington Post examines the terrible air pollution in Beijing as China prepares to host the summer Olympics in 2008. This article should be read just for the sobering insights it offers into the dismal state of air pollution, its regulation, monitoring and reporting in China. But what caught my eye was this passage: Beijing officials “have refused to publicly release figures on the amount of pollutants at any given location, such as the Olympic Village or Tiananmen Square, preferring to stick with a citywide average.”
These citywide “averages,” of course, are likely to present a false understanding of the actual air quality in locations where the Olympic athletes will be competing. The article makes clear that Chinese officials are seeking to avoid the embarrassment that would accompany reports of unhealthy air quality in these locations. The article suggests that officials are starting to hint they will not honor previous pledges to shut down belching factories during the Olympic games, preferring economic growth over air quality, the health of the athletes and public, and the approval of the international community.
This should all be familiar territory for observers of the Bush administration’s air pollution agenda over the past seven years, especially as that agenda concerns coal-fired power plants. The Bush administration has offered an even more farflung version of the geographic “averaging” argument employed by Beijing officials to obscure air pollution levels across that city. Bush administration officials have argued that nationwide reductions in air pollution, on average, justify the gutting of a Clean Air Act program called “new source review” that controls facility-specific pollution levels from power plants and other industrial polluters.
The administration has issued a proposed rulemaking to effectively eliminate the new source review requirements covering coal-fired power plants. In this measure, EPA’s air program has argued that nationwide reductions in power plant emissions under a separate rulemaking embodying a pollution trading scheme, render unnecessary an independent Clean Air Act mandate to control pollution locally and regionally from individual power plants. Yet EPA itself admits that its rule would allow individual power plants to increase emissions by thousands of tons; allow hundreds of power plant units never to install pollution controls; and allow counties in dozens of states to experience overall (net) pollution increases totalling thousands of tons. EPA pooh-poohs objections that its rule will allow and invite local air quality to worsen, by observing wanly that it believes such concerns are “diminished” or “mitigated” in a system where total annual pollution is “capped nationally.”
The Bush administration resorted to a similar rhetorical deception involving temporal averaging – averaging pollution levels across time – when it was selling its ill-fated Clear Skies legislation governing power plants. The administration insisted that its legislation would reduce power plant air pollution 70% by 2018, with President Bush going so far as to make this claim in his 2003 State of the Union speech. Not true. Instead, the legislation’s cap-and-trade approaches established pollution “caps” in 2018 corresponding to 70% reductions, but EPA’s own analysis revealed that actual pollution reductions of 70% from power plants would not be achieved until some time after 2025; this was due primarily to the legislation’s emissions credit “banking” features, which allowed credits to be banked, then withdrawn and spent well beyond the 2018 cap date. EPA was misrepresenting the legislation’s rigor and timeliness by failing to highlight the temporal averaging and credit banking inherent in its chosen cap-and-trade scheme.
Now EPA just needs to pull off the trick of convincing people to breathe nationally, on average, or across time, on average, rather than in the locales where they actually live, in real time. Maybe an administration committed above all to pollution trading schemes – except when it comes to global warming pollution since, whoops, that would require capping and reducing actual pollution – could explore a credit trading regime for breathers. If someone in an area with clean air held their breath for 5 minutes, they could sell the right to breathe that healthy air in the form of a breathing credit to a resident of Los Angeles or Houston or Pittsburgh suffering from unhealthy air quality. Breathing credits could be bought and sold for the same calendar year or future years, with the time value of money and inflation affecting pricing. The market would identify the optimal price for breathing, and rational actors would stay indoors or move to different states or stop breathing based upon price signals. Credit pricing might even be affected by halitosis or minty fresh breath.
So if the political pollution spinmeisters at EPA are looking for new work as the Bush administration winds down, there's still time to land a job in Beijing before August 2008.
]]>Administrator Steve Johnson's Environmental Protection Agency has a split personality. And obsessive compulsive disorder probably should be added to that diagnosis too.
The root cause -- or is it the symptom? -- is the Clean Air Act's "new source review" program. On one hand, Mr. Johnson's EPA justifiably celebrates the historic $4.6 billion Clean Air Act enforcement settlement with American Electric Power over the company's violations of new source review requirements. On the other hand, Mr. Johnson has personally signed an EPA rulemaking proposal that would actually legalize future harmful violations of the same type and magnitude committed by AEP and other utility company defendants over the past 2-3 decades. Just last month EPA announced its intention to adopt this irresponsible rule in early 2008 -- the Bush administration's parting gift to the utility industry.
An editorial in today's New York Times captures this hypocrisy nicely. The editorial observes correctly that the proposed rulemaking changes pushed by the administration “would have made it almost impossible to bring the case against A.E.P. in the first place, much less win it.”
Not only would this rule legalize the very same destructive polluting activities committed by the utility defendants in EPA's long-running Clean Air Act enforcement cases. The Bush administration’s mere decision to propose this rulemaking precipitated a change in EPA enforcement policy that effectively has made the disastrous rule proposal the law of the land today. As the Washington Post detailed last week in the second half of this article, the prevailing air pollution enforcement policy of the Bush EPA treats the proposed rule – rather than the much stronger law still on the books -- as the law of the land when enforcing new source review against coal-fired power plants. In other words, the Bush administration is mounting new enforcement cases only against coal-fired power plant owners that violate the grossly weaker proposed rules that have been announced but not adopted, allowing illegal air pollution by utilities to escape prosecution as if the more protective law they violated never existed.
As reason for the enforcement reversal – rather than the real reason -- the memo offers the farcical explanation that the agency will refocus its resources on other areas likely to produce significant environmental benefits. This despite the fact that EPA’s Clean Air Act enforcement efforts never have and never will reduce as much air pollution as the new source review enforcement cases against coal-fired power plants.
I became suspicious as soon as I saw that this enforcement policy memo was signed by EPA’s politically-appointed Deputy Administrator hailing from the White House, Marcus Peacock, rather than the political appointee heading EPA’s enforcement office, Granta Nakayama. After all, the memo reflects a radical change in EPA enforcement policy governing the most successful agency enforcement endeavors under this administration, and by all rights should have been issued by EPA’s enforcement chief. Then my suspicions were confirmed by several EPA sources, who related that Mr. Nakayama – a man of considerable integrity -- had refused to sign the memo himself, due to its harmful effects on the agency’s enforcement powers and prerogatives. So Mr. Peacock -- Mr. Johnson’ second-in-command – did the dirty deed.
At about the same time EPA adopted this sweeping but little-noticed change in enforcement policy in October 2005, a damning memo authored by the civil servant head of EPA’s air enforcement division leaked out of the agency (not by its author). This memo details the harmful impacts the proposed rule would have on EPA’s ongoing enforcement efforts against coal-fired power plants. It concludes that it would be "better ... to not tinker with the [new source review] test at all," because the proposed rule would be "fatal" to the agency's ongoing enforcement cases, contrary to congressional intent in enacting the relevant Clean Air Act provisions, "inconsistent with ... D.C. Circuit" court decisions interpreting those provisions, and "effectively unenforceable" due to the lack of "record keeping and reporting requirements."
So why is the Bush administration rushing to finalize a politicized, indefensibly damaging rule that drastically weakens the law and rewards electric utility companies -- at the expense of air quality, the environment, and the health of the American people? Why have political forces within the administration pursued a relentless campaign to sabotage the new source review enforcement cases against power plants, over the objections of dedicated professional staff at EPA and the Department of Justice?
Electric utility companies stand to save hundreds of millions if not billions of dollars by avoiding liability for past and ongoing air pollution violations, and by avoiding future costly pollution controls. According to the Center for Responsive Politics, these utility companies and their trade association contributed millions of dollars to the President’s election and re-election campaigns in 2000 and 2004, respectively. As the soldier’s character played by Vince Edwards in The Three Faces of Eve put it: “When I spend 8 bucks on a dame, I don't just go home with the morning paper, y'know what I mean?”
]]>This morning, EPA conditionally surrendered to that attack, presumably under coercion from the White House, by leaving on the table the option to satisfy NAM's illegal wishes, and maintain the current ozone standard that EPA's blue-ribbon panel of scientists has concluded unanimously has "no scientific justification" for being maintained. Instead, these science advisors conclude that the current ozone standard of 84 parts per billion (ppb) "needs to be substantially reduced" to between 60 and 70 ppb in order to protect Americans.
Let's harken back to 2001, when Justice Scalia writing on behalf of a unanimous Supreme Court in Whitman v. American Trucking Associations ruled that any consideration of cost to industry or economic impacts would violate the Clean Air Act when EPA sets health standards for ozone or other air pollutants. Flash forward to 2007, when NAM lobbyists are brazenly urging the administration, in back rooms and in the press, to maintain today's unprotective ozone health standard by . . . considering cost to industry and economic impacts.
NAM either has not read Justice Scalia's unanimous opinion or is cheerfully defying the Law of the Land because, hey, it beats spending money to protect the public from dangerous industrial pollution.
So what's next on NAM's list of laws and Supreme Court rulings to defy? Brown v. Board of Education? The Supreme Court rulings upholding the constitutionality of child labor laws? Makes you wonder where NAM draws the line between laws they will follow and laws they will flout.
Also makes you wonder why EPA would purposefully preserve its ability to adopt an unprotective ozone standard that has "no scientific justification." Could it be because Johnson's political bosses in the administration have already decided to keep the indefensibly weak 84 ppb standard and just did not want to suffer the bad publicity of announcing that intention today?
So now all eyes will turn toward the waning days of this administration, before they board the helicopters to leave D.C., when EPA must adopt a final ozone standard: will EPA follow the unanimous Supreme Court ruling and unanimous conclusion of their science advisors by strengthening the ozone standard to no higher than 60-70 ppb? Or will the EPA's experience with NAM and the White House leave the agency shell-shocked, traumatized, and unwilling to protect Americans?
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