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EPA Restores Scientific Integrity to How We Define Clean Air

2009-05-21T19:54:04Z

Kudos to EPA Administrator Lisa Jackson for announcing today that EPA would abandon a change imposed by the Bush administration that politicized the agency's responsibility to define clean air based solely on the best understanding of science and health information.

Jackson re-instated a key component of EPA's longstanding approach to establishing and updating "national ambient air quality standards" (NAAQS) that are "requisite to protect the public health," in the words of the Clean Air Act. That component involves preparation of a publicly available "Staff Paper" by EPA scientists reviewing the scientific literature for an updated understanding of the full range of harms caused by air pollution. It is essential for this review to be honest and free from politics so that the right choices can be placed before EPA's politically appointed decisionmakers to decide how to define clean air in this country "with an ample margin of safety" necessary to protect the public.

It's the stuff of bureaucracies that makes the eyes glaze over, but this Staff Paper long provided important integrity, credibility and transparency to the critical process of protecting public health against air pollution - without early or undue interference by political appointees. The Bush administration eliminated the Staff Paper from the NAAQS review process following a politically embarrassing controversy in which former EPA Administrator Johnson rejected his own scientists' and outside scientists' recommendations to strengthen a critical element of the air quality standards for PM2.5 (fine particulate matter of 2.5 microns or less). Because regulated industries and the White House opposed a stronger annual standard for PM2.5 pollution, Johnson refused to strengthen the existing, unprotective standard and concocted a series of arbitrary excuses for failing to follow the science.

NRDC and other public health organizations, academics and external scientists vigorously protested Johnson's politically driven decision. So the Bush administration moved quickly to quell the possibility for future controversies by simply killing the Staff Paper: don't let the agency scientists present recommendations based upon an honest analysis of the science, and you minimize the risk that a subsequent political dictate will contradict those recommendations.

The Bush administration replaced the Staff Paper with a politicized document that from the outset handcuffed EPA's scientists and reflected the preferences of the political appointees in the agency. This document was put out for public comment, and EPA's external science advisors -- given a special role by Congress in the Clean Air Act -- were relegated to the role of any other stakeholder offered a chance to comment on this more politicized document.

Industry lobbyists loved these changes, and actually had the chutzpah to claim that they furthered transparency. As a representative for the American Petroleum Institute put it, this revised process allowed all stakeholders and EPA's science advisors "to see the same things at the same time and have a better understanding of where the proposed rulemaking is going to go."

Uh, yeah. The process was going to go where the political appointees wanted it to go -- after suppressing EPA scientists' recommendations and presenting the scientific literature and range of clean air standards in a manner that the political appointees deemed politically palatable to the White House. There was no transparency, of course, into the politicized interference exercised by the White House, or political appointees at EPA or other federal agencies. So the transparency banner that industry wielded with ironic flourish was after-the-fact "transparency" into a politically tainted, non-transparent process. A process driven by politicians rather than scientists, much more to industry's liking.

Bear that in mind when today's welcome restoration of the Staff Paper and elimination of the Bush administration's political interference are decried by industry in the disingenuous name of "transparency."

A federal district court judge actually blocked the Bush administration from executing its plan during its review of the lead NAAQS in 2008. But the prior administration plowed ahead with its political science agenda anyway for other air pollution reviews. Call the Bush administration impressively prescient, or inescapably political, but two years after the PM2.5 debacle Johnson again refused to follow the science and adopted politicized ozone standards that also were unprotective of public health and the environment and fell well outside the range urged by EPA's science advisors.

Sometimes science and the law and good government do catch up with past malfeasance. In February, the D.C. Circuit Court of Appeals deemed Johnson's 2006 PM2.5 standards arbitrary and overturned them, ruling they were "in several respects, contrary to law and unsupported by adequately reasoned decisionmaking." Which is to be expected when you fail to heed the science and follow the law. And now today's announcement by Administration Jackson completes the rebuke of the Bush administration's campaign to politicize the NAAQS review process.

All that we need now is for the D.C. Circuit or EPA itself to repudiate the Bush administration's refusal to set scientifically-based, protective health and welfare standards for ozone pollution. Following today's announcement, there's reason to be optimistic.

Clean Air and the Rights of Spring

2009-04-29T17:14:10Z

This week was a time to celebrate the promise of cleaner air. EPA took the first steps toward righting numerous air pollution wrongs committed by the Bush administration.

Administrator Lisa Jackson announced the reconsideration of three harmful air pollution rules -- all concerning the Clean Air Act's new source review program in some respect -- issued by the Bush administration. One of the three was a classic midnight regulation that took effect literally at midnight on President Bush's last full day in office.

Better still, in two of the three cases Administrator Jackson declared that the harmful rules would be blocked in whole or in part pending EPA's reconsideration and while the agency hears from the public. And I have no quarrel with EPA's decision not to halt the third harmful rule because, as EPA pointed out, leaving that rule in place was still preferable to resurrecting the prior Bush administration standard that a court had already declared illegal. Natch.

Finally, EPA took the little noticed but very important step of agreeing to take back an air pollution permit that the Bush administration issued for a proposed coal-fired power plant in New Mexico. EPA filed a motion with its Environmental Appeals Board for "voluntary remand" of the air pollution permit that EPA's California regional office had issued to the Desert Rock Energy Company to build a 1,500 MW coal-fired power plant.

EPA had been slated to file a legal brief with the Board two days ago, defending the Bush administration's issuance of the permit against a challenge by the New Mexico Attorney General and several environmental groups (including NRDC). Instead, under Administrator Jackson's leadership, the regional office asked for leave to withdraw the permit based on multiple defects that the coal project's challengers had identified.

These defects included: (1) the pretense that analysis of coarse soot pollution could serve as a surrogate for analysis of fine soot pollution, despite fine soot particles being more deadly and subject to different air quality standards; (2) the failure to consider advanced pollution control equipment (called integrated gasification combined cycle) among the available pollution controls for the plant; (3) the issuance of the permit before conducting required consultations under the Endangered Species Act to assess potential hazards to species and critical habitat; (4) the adoption of certain air pollution limits before analyzing and establishing pollution controls for the plant's toxic air pollution, a maneuver designed to avoid opportunities for stricter, coordinated pollution controls; and (5) the failure to adequately consider impacts of the facility on soils, vegetation, visibility and other values.

Hopefully, the demise of this poorly conceived permit will lead to the development of truly clean renewable energy projects in the region in lieu of expanded coal-based development -- which already has greatly impaired air quality in the four corners area.

More generally, however, issue (2) could have the most sweeping implications, since coal-fired power plants have been urged to adopt gasification pollution control technology in combination with technology to control greenhouse gas pollution. Gasification technology is compatible with existing technologies for capturing CO2 emissions, which then can be stored underground to reduce the enormous toll that coal-fired power plants have on the planet's climate.

Issue (1) actually dovetailed with one of the harmful rules that Jackson agreed to halt and reconsider. That rule had given polluters the equivalent of a three-year amnesty period in which they needed not account for the full range of fine soot pollution when establishing pollution limits. The result? Higher soot pollution levels were allowed. So Jackson's decision to halt and reconsider that harmful rule carries the welcome consequence that new coal-fired power plants like Desert Rock and other big emitters will be required to protect the public against the full range of their harmful soot pollution.

NRDC had already challenged two of the three harmful rules in court, and the state of New Jersey had challenged the third rule. The Obama administration had asked to place those three lawsuits on hold while it considered requests to reconsider the rules.

So this week's announcement that the Bush rules would be reconsidered and halted, coupled with EPA's current decisions not to defend these rules in court, signals pretty strongly that the days are numbered for these dirty air rules.

There is still a lot of work to be done to deliver clean air to the public. Today our friends at the American Lung Association released their annual "State of the Air" report, revealing that six out of ten persons in the United States -- approximately 186 million Americans -- live in counties that have unhealthy levels of smog or soot pollution.

But in the meantime, while we keep working to ensure clean air for all Ameircans, let's celebrate the positive clean air news from EPA this week.

Surely You Must Be Joking

2009-02-19T23:09:46Z

"Surely you must be joking."
-- Ted Striker, Airplane

I knew the Bush administration's midnight environmental regulations were bad. Rushed, sloppy, deregulatory favors to polluters, illegal. All of that.

But my latest favorite falls into the "Surely you must be joking" category.

Just after midnight in the early morning hours of January 20th, 2009, approximately twelve hours before President Obama was sworn in as the 44th president of the United States, the Bush administration slipped into place a rule change that weakened a 25 year-old clean air safeguard.

The textbook midnight regulation, down to the literal occurrence at midnight before the Bush administration's last half-day in office.

The rule that the Bush Environmental Protection Agency made legally effective that day allows thousands of industrial polluters, factory farms, mines and others to increase harmful levels of smog, soot and toxic pollution -- all without meeting cleanup responsibilities that the law has long required.

How long? Since the first term of the Reagan administration. And the stronger safeguards were maintained throughout the remainder of Reagan II, George H.W. Bush I, Clinton I and II, and 2,922 days of the George W. Bush presidency. But not that critical half day on January 20th when the weaker rule became legally effective.

The final rule addresses the treatment of so-called "fugitive emissions" under the Clean Air Act's main permitting program, new source review. EPA defines "fugitive emissions" as "emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening." Examples of fugitive emissions include windblown dust from surface mines and volatile organic compounds emitted from leaking pipes and fittings at petroleum refineries.

What the Bush rule did was reverse 25 years of EPA and state practice that required fugitive emissions to be counted when an industrial facility or other polluter undertakes a change that increases emissions -- what are known under the law as facility "modifications."

As far as Clean Air Act definitions go, the modification definition is pretty straightforward: "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source...."

Pollution increases that qualify as modifications demand cleanup, including the full offset of those pollution increases in some circumstances. But if fugitive emissions are ignored -- not counted toward determining whether a modification has occurred -- then it's less likely that any cleanup will occur. And certainly the totality of fugitive emission increases will not be controlled.

There was no suggestion by the Bush EPA that fugitive emissions are any less harmful than stack emissions; for good reason, since these fugitive emissions are the same regulated air pollutants -- soot and smog pollutants, for example -- that are regulated from smokestacks.

And the Bush rule acknowledged quite forthrightly that every administration since the Reagan administration had read the Clean Air Act's "modification" definition to require control of fugitive emissions for two simple reasons. To quote EPA concerning this statutory definition: (1) "Congress intended to establish no qualitative distinction between stack and fugitive emissions" when counting those emissions toward modification status, which would require cleanup of those emissions; and (2) the Clean Air Act "defines modification solely in terms of the total amount of pollution that a change at a source would produce."

Both conclusions flow naturally from the modification definition in the statute. So what did the Bush administration have to say about this provision?

Here's another one of those "surely you must be joking" moments. The Bush administration did not bother to explain its midnight rule's contradiction of this statutory definition. Or reversal of 25 years of consistent legal interpretation of that definition. In fact the record for the rule did not address the statutory definition at all.

Basic legal principles require an agency at least to explain its reversal of prior statutory interpretations. The Bush EPA's response on that score? Nada.

Basic legal principles also require an agency to respond to important adverse comments by the public. State, local and tribal air quality officials objected loudly to the Bush rule, noting that it contradicted plain statutory language and 25 years of consistent EPA interpretation of the law. The Bush EPA's response? Nada.

Basic legal principles further require an agency to explain how its rule is consistent with controlling statutory language. The Bush EPA's explanation of the controlling statutory definition? Nada.

Instead the Bush administration pointed to an altogether different statutory provision that did not define modifications or even mention them, and certainly did not exempt fugitive emissions from being counted toward modifications. The details are too dreary, but rest assured that after reading the explanation you would say . . . wait for it, wait for it . . . "Surely you must be joking."

But here's my favorite "surely you must be joking" feature of the final Bush rule. The preamble to the rule pretends to find support for the rule in legislative history to the Clean Air Act Amendments of 1977 -- that is, industry testimony opposing the regulation of fugitive emissions. The preamble cites the testimony of clean air champions (read sarcasm) Bethlehem Steel and the American Iron and Steel Institute. EPA's preamble then concludes this astonishing discussion with the following wry citation: "But see EPA written responses to Committee questions (for some industries, fugitive [emissions] control can be critical to attainment of standards)." The hapless EPA staffer responsible for inventing the supposedly supportive legislative history, i.e., industry testimony, must have gotten a chuckle out of that. At least that person had the decency to note that EPA's contemporaneous testimony contradicted the industry complaints.

No less incredible, the Bush administration weakened its longstanding approach to fugitive emissions in this final rule in response to an industry petition that even the Bush administration found to be groundless. The Newmont Mining Corporation petitioned EPA in 2003 to exempt fugitive emissions from being counted for modification cleanups, proffering two grounds. Yet even the final Bush rule explains that EPA "disagree[s] with the petition on the two counts summarized."

So in response to an industry petition filed in 2003 that the Bush administration openly disagreed with, on the very last day of the Bush administration's eight-year tenure, EPA weakened 25 years of consistent and more protective clean air safeguards with a rule that could not even manage to discuss -- much less explain -- the controlling legal requirement in the Clean Air Act.

It is painfully clear that the Bush administration failed to provide any reading of the key statutory provision -- much less a coherent reading -- because the administration's final rule thoroughly contradicts the Clean Air Act and they couldn't think of any way around that.

So the former administration decided that the best course was to ignore the law, not even attempt a lawful statutory interpretation, and not even bother to respond to public comments or try to explain EPA's reversal of a 25-year legal interpretation.

"Surely you can't be serious," you say.

I am serious. And don't call me Shirley.

NRDC has filed a lawsuit in federal court to overturn the Bush administration's dirty air rule, and has simultaneously asked EPA Administrator Lisa Jackson to reconsider, halt and reverse the rule.

Such a Curious Dream: Obama EPA Abandons Bush Mercury Rules

2009-02-06T21:24:15Z

"'Wake up, Alice dear!' said her sister; 'Why, what a long sleep you've had!' 'Oh, I've had such a curious dream!' said Alice."

Lewis Carroll, Alice's Adventures in Wonderland.

When Alice awoke from her phantasmagorical journey to Wonderland, having escaped the capricious tyranny of the Queen of Hearts and her court of freaks and frauds, she found herself resting in the comforting lap of her sister. After exclaiming what a curious dream she had, Alice bounded up and ran home, rejoining reality.

January 20, 2009 marked the U.S. Environmental Protection Agency's escape from Wonderland.

And today marked EPA's welcome return to reality.

This morning, on instruction from newly-confirmed EPA Administrator Lisa Jackson, the Solicitor General asked the Supreme Court to drop the Bush administration's desperate appeal to resurrect EPA's illegal and harmful power plant mercury rule. The Bush administration had petitioned the Supreme Court in October 2008 after several filing extensions that suggested even the former administration's Solicitor General was reluctant to appeal the Bush EPA's thoroughly illegal undertaking.

Indeed, one of President Bush's appointed conservative judges joined two others in February 2008 unanimously striking down the two harmful power plant mercury rules that the Bush administration had substituted for the stronger, faster rules the Clean Air Act requires to sharply reduce all hazardous air pollution from power plants, mercury included.

These three judges openly mocked the legal "reasoning" underlying the Bush EPA rules, declaring that the Bush administration's excuses for evading statutory requirements "deploy[ed] the logic of the Queen of Hearts, substituting EPA's desires for the plain text of" the law. Before relieving utility companies from the Clean Air Act's protections, the law required EPA to make a rigorous health-based showing that no power plant in the country would emit hazardous air pollution that harmed public health or the environment. EPA could not make this showing, of course, so the agency did not even pretend to do so; instead Bush administration officials concocted an upside-down version of the law akin to the capricious Queen's "sentence first -- verdict afterwards."

Just as important as the Obama administration's action today abandoning the illegal Bush-era mercury rules is the affirmative commitment that President Obama's EPA embraced. In the Solicitor General's filing, and in a morning speech delivered by Administrator Jackson to the Good Jobs, Green Jobs National Conference, the Obama administration EPA actually embraced the obligation to issue protective, timely controls to reduce all hazardous air pollutants from power plants using the strongest tools provided by the Clean Air Act.

The Obama administration EPA is committing to clean up power plants' toxic pollution because it's the right thing to do. Not because some court ordered them to after the agency broke the law.

Let me extend a hearty welcome to the new reality at EPA.

The knaves and lizards from the Queen's court are still with us, alas, with utility industry lobbyists and lawyers presenting a separate petition to the Supreme Court to resurrect the harmful Bush-era mercury rules.

But the Obama administration's request to dismiss the case and abandon the Bush administration's high court appeal, makes it highly unlikely that the Supreme Court justices will wish to hear the case and grant industry's petition.

The long nightmare will soon be over.

Clearing the Air

2008-11-25T16:46:01Z

This morning a coalition of environmental and public health groups issued a report entitled Transition to Green, providing priority environmental recommendations for the Obama administration transition team.

I co-chaired the committee responsible for developing priority recommendations for EPA, and also chaired the sub-committee that developed the report's detailed air quality recommendations for EPA. These recommendations are accompanied by key administrative, legislative and budgetary policy actions and critical actions for the incoming administration to take in its first 100 days.

Here is the report's top-line air quality message:

There is an overriding need for the incoming Administration to make the cleanup of power plants its top air quality priority. Other high priorities include reversing the previous Administration's rejection of scientific consensus to define safe levels of smog and soot pollution in the air; its failure to monitor lead polluters; its creation of loopholes in rules supposed to protect against smog and soot pollution; and its failure to control air toxics.

And here are the five priority clean air administrative recommendations for EPA, along with some context for the first two issues explaining how the country finds itself in this sorry polluted state at the end of the Bush era.

1. Clean Up Power Plants
EPA should propose rules requiring SO2 and NOx reductions from power plants sufficient to deliver clean air to all Americans. EPA should also propose rules to achieve deep reductions in all hazardous air pollution including mercury from power plants.

After eight years of the Bush administration, no significant EPA rules covering SO2, NOx or mercury emissions from power plants survived judicial challenge. A 2007 D.C. Circuit decision struck down EPA's "Clean Air Mercury Rule" and EPA's refusal to protectively control mercury and dozens of other hazardous air pollutants from power plants, after finding that EPA had squarely violated the plain language of the Clean Air Act. A 2008 D.C. Circuit decision overturned EPA's "Clean Air Interstate Rule" (CAIR), which had reduced SO2 and NOx from power plants in the eastern U.S. Again, the Court found that EPA had violated plain statutory language and also acted arbitrarily.

EPA's highest air quality priorities in 2009 are clear: (1) EPA must propose a Federal Implementation Plan rulemaking to require much deeper and faster cuts in power plant SO2 and NOx emissions than CAIR had required, cuts sufficient to deliver attainment with ozone and PM2.5 air quality standards in the eastern half of the country; and (2) EPA must propose a Maximum Achievable Control Technology (MACT) standard covering all hazardous air pollutants from power plants, requiring cuts in mercury and other air toxics of 90% and greater.

2. Reverse 11th Hour EPA Abuses
EPA should immediately: (i) reverse three NSR rules allowing significant pollution increases from power plants, oil refineries and other facilities near national parks; (ii) withdraw the cert. petition in the New Jersey v. EPA case in the Supreme Court defending its harmful mercury rule; and (iii) strengthen and expand monitoring for lead pollution.

By the end of the Bush administration, EPA is expected to issue three new source review (NSR) rules that will: (1) allow existing power plants to significantly increase harmful emissions of SO2, NOx, particulate matter, mercury and other air toxics, and global warming CO2 emissions; (2) weaken the special air quality safeguards that apply to power plants and other industrial polluters siting near national parks and wilderness areas; and (3) weaken air quality protections and cleanup obligations at all industrial facilities, especially those with multiple equipment like oil refineries, chemical plants and pharmaceutical facilities.

I've written about the first rule here and Juliet Eilperin with the Washington Post recently addressed an internal EPA staff rebellion against the second rule here. The third rule is no less important, but thus far has managed to avoid meaningful public scrutiny and is not expected to be signed until late December or January.

Each of these three NSR rule changes will allow air pollution to increase and escape control, when current rules would control such increases. None of the three rules can be justified on air quality or public health grounds, and EPA's record for the proposed rules reveals the obvious: the rule changes will allow pollution levels to increase.

In the New Jersey v. EPA case referenced above, the Bush administration somehow prevailed upon the Solicitor General's Office to petition for cert. following the D.C Circuit's vacatur of the Clean Air Mercury Rule and EPA's refusal to adopt protective standards for mercury and all other air toxics from power plants. EPA petitioned for cert. notwithstanding the agency's failure to persuade a single judge on the D.C. Circuit to rehear the decision by the original three-judge panel.

It's time to put this case out of its misery, and long past time to require power plants to clean up their mercury and other toxic emissions to the maximum extent achievable - 18 years after Congress passed the law that gave EPA that authority.

In 2005, Senator Obama co-sponsored a joint resolution to disapprove and overturn the EPA rule that pretended to "delist" power plants from protective Maximum Achievable Control Technology standards under the Clean Air Act -- the very rule that the D.C. Circuit overturned and that is now the subject of the pending EPA cert. petition to the Supreme Court.

President Obama thus should support withdrawal of the Bush administration's cert. petition, and the incoming administration should make clear that EPA has no intention of avoiding the adoption of protective MACT standards controlling mercury and all hazardous air pollutants from the power sector.

The final item under the reversal of 11th hour abuses -- strengthening and expanding monitoring for lead pollution -- is a topic that my colleague Gina Solomon has covered well here. This recommendation is necessitated by Bush White House interference with the lead monitoring that EPA wanted to require to protect the public.

To round out the list of five priority clean air recommendations for the incoming administration, here are the remaining three. In a follow-up post, I will provide further context and explanation for these recommendations.

3. Protect Against Smog, Soot Pollution
EPA should (i) end litigation by agreeing to an immediate voluntary remand of recent ozone standards, and then revise them to comport with unanimous scientific advisory recommendations; and (ii) revise ozone and PM2.5 implementation rules to eliminate recent loopholes and require stronger measures to help states achieve clean air.

4. Clean Up Dirty Diesel Engines
EPA should propose a rule requiring heavy-duty diesel truck and bus engines to install the best available pollution controls whenever their engines are rebuilt. EPA also should take action to reduce diesel emissions from ships within 200 miles of any U.S. coast.

5. Reduce Carcinogens, Other Toxic Pollution
EPA should: (i) adopt protective cancer risk policies for all future hazardous air pollution rules, and revise recent rules that allow excessive cancer risk; (ii) reverse loopholes for toxic emissions from solid and hazardous waste incineration; and (iii) propose deep toxics reductions from industrial boilers.

Court to EPA: “Read the Statute. Read the Statute. Read the Statute.”

2008-08-20T05:25:28Z

It’s that time of the month – for the U.S. Court of Appeals for the D.C. Circuit to issue yet another decision overturning a Bush EPA rule for violating the plain language of the Clean Air Act. Yesterday’s decision in Sierra Club v. EPA vacated an EPA rule that actually had prohibited state, local and EPA permitting officials from including adequate air pollution monitoring in the operating permits of approximately 18,000 industrial facilities, such as utilities, oil refineries, incinerators, cement plants and the like. NRDC was one of the prevailing plaintiffs in the suit, represented by extremely talented counsel at Earthjustice.

EPA’s rules previously had not only allowed permitting officials, but required them, to impose air pollution monitoring that was sufficient to “assure compliance” with all air pollution requirements included in industrial operating permits.

EPA stared that sensible requirement down and said, “Adequate monitoring? Assure compliance? Not so much our bag. We prefer letting polluters continue with monitoring that we fully acknowledge to be inadequate, and prohibiting states from doing something about it. We’ll get around to dealing with this our way, in our own sweet time.”

And when would that be? Well, never, based on EPA’s sorry track record of failing to correct monitoring that it knew to be deficient.

In a passage that reads like a hectoring haiku to incorrigible Bush EPA political officials, the court found EPA’s rule to “run counter to Justice Frankfurter’s timeless advice on statutory interpretation: ‘(1) Read the statute; (2) read the statute; (3) read the statute.’”

A waggish colleague of mine remarked that the EPA political officials responsible for this travesty should be forced to write those words on a blackboard 1,000 times. The problem is, those political officials have since left EPA to rejoin the private sector, where they are now representing the very same industry forces that cajoled EPA to issue this train wreck of a rule in the first place.

Oh and it gets even better (or worse). In 2002, EPA had issued a rule codifying its longstanding position that state and local permitting authorities were authorized and indeed required to improve inadequate air pollution monitoring in permits for industrial polluters. A coalition of utility companies called the Utility Air Regulatory Group (UARG) challenged that rule in court. (Could there be a better villainous acronym for polluting utility companies than “UARG”?)

At this point it’s worth quoting the court’s opinion, which flavors an otherwise dry recitation of events with a single italicized word that evokes an image of the judges’ eyebrows creeping up their foreheads, recoiling from EPA’s shamelessness:

Rather than defend the proposed rule, the agency settled the litigation by agreeing to adopt a final rule that would interpret [EPA’s existing rule] to prohibit state and local permitting authorities from supplementing inadequate monitoring requirements.

That’s right – EPA not only backed down in the face of the earlier utility industry lawsuit, the administration joined hands with UARG and issued a new rule that did the exact opposite of what EPA’s industry-challenged rule had done.

That new rule is the one the court struck down yesterday for squarely violating the Clean Air Act.

So much for the Bush administration’s claimed commitment to federalism; EPA threw state and local agencies under the bus faster than UARG lobbyists could ask EPA for a box of bon bons and a commitment ring to go with their sweetheart deal.

And where is one of the two former Bush EPA officials most responsible for this rule working now? At the private law firm that represents UARG, which intervened on EPA’s behalf in trying (unsuccessfully) to defend this illegal rule. (There is no indication that the former EPA official worked on the lawsuit itself for UARG.)

In fairness, EPA officials can read. I’m confident they even read the statute. The problem is they did not care to do what the statute commanded. EPA preferred to side with industrial polluters over states, the public and air quality. Industry foxes weren’t just guarding the henhouse; the foxes were invited in to have a house party.

In the future, the D.C. Circuit judges need to be a little more blunt with EPA, offering agency officials the following more timely advice on statutory interpretation of the Clean Air Act:

Read the statute. Follow the statute. Stop wasting our time.

What explains the Bush administration's air pollution agenda for power plants?

2008-08-15T21:34:37Z

Does President Bush, powerfully astride a proverbial aircraft carrier rocking on the ocean's perspiring surface undulating like waves, survey the nation’s hoary horizon of power plants erect like smokestacks, not misunderestimating the dirty deed he did for these dischargers, and does he (flush with satisfaction) boast, “Emissions accomplished"?

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.

EPA’s “Clean Air Mercury Rule” and the Dog Days of Summer

2008-08-12T04:02:45Z

In late May, the full U.S. Court of Appeals for the D.C. Circuit denied EPA and utility industry requests to rehear the original court panel’s unanimous decision overturning EPA’s so-called Clean Air Mercury Rule (CAMR) for power plants. I said at the time that I would be astounded if the Solicitor General’s office walked this dog up to the Supreme Court’s steps to soil those grounds. The utility industry on the other hand follows different public health practices -- so the industry probably would ask the Supreme Court to hear the case.

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.

Words That Utility Pollution Apologists Dare Not Utter

2008-08-08T04:03:13Z

I usually don’t bother responding to utility lobbyists’ air pollution talking points. Much less re-publish their propaganda, thereby adding to the abuse of reason, facts, and good sense in the world today.

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:

that CAIR did not apply to power plants in half the country;
that CAMR only covered mercury and not the air pollutants covered by NSR;
that under EPA’s substitute strategy for the statutory NSR mandate – that is, by relying on CAIR, CAMR and another rule -- an astonishing 68% of 1041 total power plant units still would lack advanced pollution controls for SO2 or NOx or both in 2020, based on EPA’s own data
that according to EPA’s own analysis, the NSR rulemaking would cause over 300 counties across the country to experience county-wide SO2 or NOx pollution increases from power plants, including single county SO2 pollution increases of over 34,000 tons per year; and
that EPA’s own enforcement officials concluded that the proposed NSR rule would allow a single power plant from an actual case study to increase SO2 emissions by over 13,000 tons per year.

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.

EPA Administrator Johnson's CA Waiver Denial: Mind, and Mime Alone

2008-08-01T00:26:54Z

Imagine that you’re taking your young son or daughter on a weekend camping trip that you both have been planning and looking forward to for the past year. Your car is all packed the night before and you’re planning to take a half day on Friday – when just before noon that Friday your boss calls and asks you to come into his office.

He tells you that he needs you to work over the weekend, that it’s important for your office, it’s important for the company and, above all, it’s important to him personally. He appreciates that you had your plans and he will leave the decision up to you. But as you leave his office, he looks you in the eye, smiles unnervingly and says, this really is important to me and I won’t forget this whatever you decide.

If you then picked up the phone and called your child, telling him her or that the camping trip was cancelled (crushing their impressionable young spirit) because you had to work all weekend – could you honestly say in your heart of hearts that the decision was yours and yours alone?

EPA Administrator Stephen Johnson says so, and wants us all to believe that is the truth.

Even though in his case that boss just happens to be the President of the United States.

In December Johnson denied California’s request to receive a waiver from EPA that the state needed to carry out its landmark law regulating global warming pollution from vehicles. Information emerged almost immediately thereafter suggesting that Johnson had concurred with unanimous EPA staff recommendations to grant California at least a partial waiver, until Johnson consulted with the White House about the President’s wishes.

Johnson had announced the denial of the California waiver request on a hastily arranged press conference call the evening of December 19th, following a Rose Garden signing ceremony of the new energy bill that morning by the President. EPA staff did not even know with certainty that Johnson planned to deny the waiver, and only Johnson’s inner circle was allowed to participate on the press call with the Administrator.

I’m told that these inner circle officials were unable to field all of the reporters’ questions about why Johnson had reached that decision, so the knowledgeable EPA professional staff were receiving frantic phone calls from the inner circle during the conference call while Johnson fumbled the reporters’ questions.

Because Johnson had not disclosed that he was going to deny the waiver, because EPA did not decide to announce the denial until late in the day on the 19th, and because EPA professional staff and even political staff other than Johnson did not believe the denial was appropriate or supportable – no decision documents or supporting analysis or justification had been prepared by the time of the press call that evening. Instead, EPA hurriedly drafted a short denial letter dated the 19th to California Governor Schwarzenegger.

On the 20th, NRDC submitted a Freedom of Information Act request to EPA for all decisional documents justifying denial of the waiver as of midnight on the 19th, since we believed that few if any had been prepared by then due to the haphazard, unsupported nature of Johnson’s decision. Also that day, Congressman Waxman launched an investigation into the denial.

EPA did not even issue its justification and what it called the formal decision for the waiver denial until the end of February, 2008.

Flash forward to July 22, 2008, when controversial and damning details emerged in testimony before the Senate Environment Committee by former EPA associate deputy administrator, Jason Burnett, who testified that Johnson had reversed his plan to grant California a partial waiver only after the President expressed a “policy preference” for denying the waiver.

Johnson had been claiming repeatedly since December, including at a Senate hearing in late February, that the decision to deny the waiver was “mine and mine alone.”

More like mind, and mime alone. Johnson minded the President's wishes, and pantomimed the motions of reasoned decisonmaking in announcing the President's foregone conclusion that Johnson alone among EPA staff pretended to support. The real voice behind the mime remained the President.

This controversy flared up anew this week when five U.S. Senators – Boxer, Whitehouse, Klobuchar, Lautenberg and Sanders – asked Attorney General Mukasey to investigate whether Johnson made false and misleading statements in his testimony before the Senate Environment Committee. The Senators pointed to apparent contradictions between Johnson’s testimony and the testimony of Burnett. The first four Senators also called for Johnson’s resignation.

I express no view about whether the Administrator is guilty of the legal charges for which an investigation is being sought. He is after all innocent until proven guilty. And rising to the level of a prosecutable offense is a matter for the Justice Department to weigh, as the Senators duly requested.

But if Burnett's account is correct -- and neither Johnson nor EPA spokespersons have contradicted it -- then Johnson's “mine and mine alone” assertion appears both disingenuous and lacking in real world credibility.

Indeed, even the EPA spokesman temporarily lost sense of his talking points and spinmeister responsibilities when confronted with the obvious-to-everyone-else point that Johnson’s decision was just maybe driven by the President’s wishes.

As Darren Samuelsohn with E&E News PM reported:

Asked if Bush's view had influenced Johnson, EPA spokesman Jonathan Schradar replied, "Perhaps." But Shradar then quickly added, "The administrator made a fully informed decision pursuant to the law, and he stands by that decision."

"Perhaps"?

“Mine and mine” alone? Perhaps not.

Administrator Johnson left the Oval Office last winter, after President Bush looked him in the eye, smiled unnervingly, and told Johnson that the leader of the Free World wanted him to deny California’s waiver request. Johnson then reversed himself – contradicting the unanimous recommendations of EPA political and professional staff – and denied the waiver.

Johnson looked in his heart of hearts and said, "the decision was mine and mine alone." Do you believe him?

Demise of the Clean Air Interstate Rule (Part 3): EPA's "Clear Skies" Straitjacket

2008-07-30T04:56:11Z

And now the story can be told of the Bush administration's 8 year long agenda for air pollution from power plants.

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.

Demise of the Clean Air Interstate Rule (Part 2): Today's Senate Hearing

2008-07-30T04:05:59Z

I testified this morning before the clean air subcommittee of the U.S. Senate Environment and Public Works Committee at a hearing about the D.C. Circuit's July 11th decision overturning EPA's "Clean Air Interstate Rule."

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.

Bush Environmental Era: Like a Kidney Stone, This Too Shall Pass

2008-07-15T23:56:09Z

But not without considerable harm to the body politic, public health and the environment, with 6 long months left for that painful passage.

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.

Demise of the Clean Air Interstate Rule: Blame, Shame, Thy Name is Duke Energy

2008-07-15T16:10:54Z

“The lady doth protest too much, methinks.”
– Hamlet Act 3, scene 2, 230.

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:

“It was not the intent of Duke Energy’s participation in this litigation to overturn E.P.A.’s Clean Air Interstate Rule.” Duke Energy spokesman, Thomas Williams, in an email to the New York Times.
According to the Charlotte Observer, “Duke Energy objected, said spokesman Tom Williams, because of the low number of emission allowances the rule would give Duke. ‘Our whole focus was not to overturn CAIR, but to make sure we got the appropriate number of allowances,’ Williams said.”
The “court has thrown out the baby with the bathwater.” Duke Energy statement to CBS Evening News repeated in its July 12th broadcast.

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.

Coal Plant Developers Confront The Future of CO2 Controls -- And Freak.

2008-07-02T16:55:41Z

This week a state court judge in Georgia issued the first court ruling in the country concluding that power plant developers and state regulators must establish permit limits for CO2 pollution from new coal-fired power plants, based upon "best available control technology" under the Clean Air Act.

The judge further ruled that coal plant developers and regulators must fully evaluate alternative energy production processes, like integrated gasification combined cycle ("IGCC").

The proposed Longleaf Energy Plant in Early County, Georgia, a joint venture of Dynegy and LS Power Group, would be a 1,200 MW pulverized coal-fired power plant expected to cause as much as 9 million tons of harmful CO2 pollution each year.

The American Coalition for Clean Coal Electricity (ACCCE) issued a statement decrying the court ruling and calling for a "prudent Federal climate policy" to prevent similar rulings.

It was entirely predictable that ACCCE would rebuke a judge for being so rude as to apply the law correctly against a coal plant developer's economic preferences. What was more remarkable was the alacrity with which ACCCE called for effective national climate change legislation to control global warming pollution from coal-fired power plants.

Don't bet on the word "effective" in that last sentence. "Prudent Federal climate policy" is just as likely utility industry code for Congressional or EPA intervention to save power plant developers from application of the existing Clean Air Act; code for federal preemption of state global warming action; or even national legislation but founded on windfalls for utility companies by giving away the right to spew global warming pollution into the atmosphere for free.

ACCCE for its part has 12 lengthy and demanding conditions that must be satisfied before its members will support federal legislation, and those conditions echo some of the explanations for the code above.

ACCCE's press statement reacts with thinly veiled alarm to the court ruling for good reason: this judge's opinion is the first to really engage and consider some basic legal disputes at issue in almost all of the pending controversies over conventional coal-fired power plant permits.

And you know what? The judge reached the most sensible conclusions based upon the most obvious reading of the relevant Clean Air Act language. There is nothing in her ruling that is a stretch.

Coal power plant developers have taken comfort thus far in the fact that political agencies at the state and federal level have gone to whatever lengths are necessary in order to avoid being the first jurisdiction -- or a jurisdiction -- willing to regulate global warming pollution from power plants under rather obvious Clean Air Act authorities.

So this court decision terrifies coal plant developers not just because it is the first adverse ruling, but because it truly is rooted in the most obvious reading of the law and heralds more judges reaching the same conclusion.

You can bet on that.