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 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.
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.
]]>Shortly after I read his inaugural blog posting from late July, I emailed him inquiring why his blog did not provide the option for readers to post public comments and questions, consistent with accepted blogging protocol. Now I will confess I was motivated in part by suspicions that Bush administration EPA officials might be more interested in one-sided puffery than open forums and dialogue that would certainly surface criticisms and challenges to EPA policies.
I received a prompt and courteous email reply from Mr. Peacock offering various explanations about security and a lack of resources to reply. Plausible explanations but ultimately unsatisfying. I learned later that he had published my question and posted a public reply similar to what he had explained to me privately.
Strolling over to his blog today, I was pleased to see this latest posting, announcing that in November, his EPA blog will accept public comments on his blog entries for all to read. (Before getting to this welcome news, the reader first must accompany Mr. Peacock on a trip to a urinal in a discomfiting anecdote, but hey, let's give the man credit for the courage to bare his, ahem, soul before the world on a government website. And when's the last time a government official -- besides Senator Larry Craig -- invited you into a urinal with him?)
So kudos to Mr. Peacock for listening to public suggestions; for overcoming bureaucratic hurdles to make government more transparent and responsive to citizens; and for opening up himself, EPA, and the administration to potential criticism. Let's keep it constructive out there. One can even hope that EPA staff will feel empowered to post probative comments and questions to Mr. Peacock.
Oh I'll still be a critic of the administration's environmental policies. I'll be forced to file more lawsuits -- cheerfully, mind you -- in the next 14 months challenging harmful EPA air pollution rules than in any comparable period in the past 7 years, as the administration has announced desperate plans to rush out a graveyard's worth of dirty air rules before they leave office.
But in the meantime, when we see honorable gestures like Mr. Peacock's, let's give good government due credit.
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