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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.

Science Decider in Chief

2008-03-18T04:09:33Z

The Clean Air Act reserves to "the judgment of the [EPA] Administrator" alone, as a matter of law, the revision of the secondary “public welfare” standard for ozone and other air pollution. This legal standard must be based on what is "requisite to protect the public welfare," a standard that a unanimous Supreme Court has ruled must be based on science alone, and may not be based on cost or other non-welfare related considerations.

On Tuesday, March 11th, the President personally flexed his expert scientific muscles, and overruled the public welfare standard for ozone selected according to the scientific judgment of the EPA Administrator. Instead, the President ordered adoption of an ozone standard preferred by White House economists, a standard that EPA recognized to “lack scientific support.” And in doing so, the President relied upon the very cost considerations that the Supreme Court had ruled illegal in 2001.

The President’s last-minute intervention on March 11th – the day before EPA’s court-ordered deadline for adopting the ozone standards -- precipitated a late night legal flurry within the administration. As this March ~~13th~~ 14th front-page Washington Post article describes it:

Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

EPA’s Administrator, Stephen Johnson has confessed ignorance about the advice delivered during the meeting between the Solicitor General and White House officials that night. Nor is there any indication that EPA’s own attorneys were even involved in that meeting. EPA staff waited patiently for written White House orders to be delivered on the 11th. None came.

The written White House orders still had not arrived by Wednesday morning, March 12th. EPA staff continued scrambling to concoct a justification for the President’s directive, rewriting the response to public comments documents, preamble and final rule. The Administrator still had not signed the final rule despite the ticking court-ordered clock because the President’s plug-in justification had not showed up at the agency. Hastily, EPA postponed its scheduled 1:00 press conference until after 6:00. A woman caller to the Administrator’s office that afternoon was mistaken for the White House Office of Management and Budget’s Susan Dudley, and greeted with this response, “Is that you again, Susan? We’re working as fast as we can.” Chaos reigned at EPA.

Finally, the letter from the White House’s Dudley to Administrator Johnson arrived late that afternoon. The letter laid down the President’s order, which EPA dutifully repeated in the preamble to the final rule, moments before Johnson signed it.

Reasoned decisionmaking running its course at EPA.

EPA, EPA, “Therefore” Art Thou: Immediately after the preamble sentence quoting the President’s dictate, a sentence follows in which the revealing word “therefore” resounds with the force of a cowboy boot landing on the back of the neck of a lassoed calf: “EPA’s decision therefore also reflects the view of the Administration as to the most appropriate secondary standard.”

You gotta admire the moxy of the beleaguered EPA staffer that included the word “therefore” in that sentence, since it confirms that EPA’s decision followed logically and unavoidably from the President’s order: POTUS says, EPA does. I also rather like the cheeky irony of the word “also” in that sentence, as if to say “Why looky there, Stephen Johnson’s decision also just so happened to parrot the President’s view.”

CYA: The remarkable preamble paragraph disclosing the President’s interference and dictate peters out with a cursory, whimpering testament to the Administrator’s independence that not even the sentence’s author must have believed: “While the Administrator fully considered the President’s views, the Administrator’s decision, and the reasons for it, are based on and supported by the record in this rulemaking.” In EPA legal parlance, that throw-away claim is known as a CYA justification – Cover Your Administrator.

The Science of the Lambs: If you find yourself like EPA, unlucky enough to be a hapless lamb led to slaughter one day, the least you can do is raise a ruckus by bleating all the way to the slaughterhouse. The public docket and preamble for the final EPA rule disclose four remarkable instances of EPA standing up to the White House’s anti-scientific interference – in public, on scientific principle and (in the most incredible instance of them all) subversively.

(1) Long-time EPA staff and agency watchers are still marveling over the high-level mano a mano combat played out between the OMB’s Susan Dudley and EPA’s Deputy Administrator, Marcus Peacock, in back-to-back memos dated March 6th and 7th – just 5 days before the March 12th court-ordered deadline for adopting the ozone standards. This is where the OMB-EPA disagreement over the ozone public welfare standard came to a head – with EPA’s March 7th memo strongly rejecting OMB’s demands. That repudiation sent OMB scurrying to the President to put EPA in its place.

For one brief, shining moment, however, piercing through the smog of illegal and political cost considerations, EPA stood up very publicly to OMB’s reliance on illegal and unjustified factors to attempt to force EPA to adopt a less protective public welfare standard. Indeed, EPA’s March 7th memo reminded OMB acidly that (1) a unanimous Supreme Court decision prohibited consideration of cost in setting a public welfare standard; and (2) contrary to OMB’s claims, “EPA is not aware of any information indicating beneficial effects of ozone on public welfare. . . [or] beneficial effects on economic values or on personal comfort and well-being.”

It is exceedingly rare for high-level memos such as these two even to be written, much less placed in a public EPA rulemaking docket. Especially in this administration with its penchant for secrecy, where OMB-EPA disputes and deals are usually mediated in undocumented phone calls and meetings. EPA’s ultimately ill-fated defiance must be recognized in that light and the agency deserves credit for its courage, however fleeting.

(2) and (3): Even more extraordinary – unprecedented to my knowledge – is the very public disclosure of the President’s personal involvement at the 11th hour as Science Decider in Chief. This disclosure came in two forms: first, the preamble to EPA’s final rule, which revealed the President’s “conclusion” on “March 11, 2008” that EPA’s public welfare standard would be overruled and that the preference of OMB economists would prevail. The EPA rule preamble quotes two sentences out of the blue, oddly without any citation, explaining that the President’s decision was reached “consistent with Administration policy” – policies that the preamble pointedly does not elucidate.

The second disclosure came in the form of a letter that appeared in the rulemaking docket on March 13th -- the day after the rule was signed -- but had begun circulating by email on the 12th: a letter from the White House’s Susan Dudley to Stephen Johnson (mistakenly dated March 13th) officially notifying EPA of the President’s decision to overrule Johnson. This letter contained the mysteriously uncited sentences from the EPA preamble.

(4) The most revealing and astonishing disclosure of them all, however, is also the most subversive: EPA quietly placed into the public rulemaking docket the talking points on the ozone public welfare standard prepared for the Administrator’s meeting with the President. The document is prominently marked “Deliberative and Confidential” and dated March 11, 2008. The purposeful disclosure of this asserted confidential document comes from the same administration that waged the secretive Cheney energy task force battles, and exhibits steadfast resistance to Freedom of Information Act disclosures and Congressional oversight. EPA does NOT place documents like this in public rulemaking dockets – except when it wants to, as here.

And what do these talking points reveal that EPA and the Administrator needed to tell the President and OMB in the Oval Office? That the Supreme Court had unanimously disallowed cost considerations in the establishment of public welfare standards for air pollution; that EPA’s planned approach was “the most scientifically defensible” and “consistent with scientific advice” (italics in original); that EPA’s planned approach was “the most legally defensible”; that “the Administrator must decide how best to set” the public welfare standard; and finally, that “EPA has extensive record support for [EPA’s planned approach] and lacks scientific support for [OMB’s desired approach].”

Johnson was not persuasive in the Oval Office, and the President ordered adoption of the public welfare standard that EPA deemed to “lack[] scientific support,” as of March 11th at least.

As these disclosures show, however, EPA did succeed -- through a combination of pluck and subversiveness -- in revealing to the American people the heavy, anti-scientific hand of the President and White House. The disclosed EPA talking points especially serve as an indictment of that heavy handedness, as well as an indictment of the legal and scientific basis (or lack thereof) for the President’s decision.

Freaky Friday: As in the Disney movie “Freaky Friday,” Stephen Johnson awoke on Friday, March 14th to discover that he had re-possessed the body of the EPA Administrator. On a press conference call to announce EPA’s new rules for locomotive and marine diesel engines, Johnson lashed out at the Washington Post – and indirectly at yours truly for my quote in the Post article – for disclosing the role of the President in overruling Johnson. The Administrator huffed that – all evidence to the contrary – he, not the President, was the Science Decider in Chief.

Johnson also protested that there had been nothing “irregular” about the extraordinary events of March 11th and 12th discussed above. In the same breath, Johnson acknowledged that he had been completely oblivious to the Solicitor General’s involvement on March 11th weighing in with the White House on the potential (un)lawfulness of the position that the President forced upon EPA that afternoon. Thus did Johnson confirm that he and EPA were so out of the loop and marginal that they had not been invited to the big kids' party.

Meanwhile, over at the White House on Friday, White House spokesperson Tony Fratto all but declared that cost considerations had been the President’s driving motivation for overruling EPA’s public welfare standard. At that morning’s press briefing, Fratto responded to a question asking why the President had intervened in EPA’s smog decision. Fratto responded that the President’s involvement was driven by a concern over “how federal regulations impact communities.”

Thus were the President’s illegal motivations publicly clarified – not concern for science or what is “requisite to protect the pubic welfare,” as the Clean Air Act requires – but impacts on communities. In other words, costs – the very considerations that a unanimous Supreme Court had ruled illegal when setting public health and welfare standards under the Clean Air Act.

The memo from the White House’s Dudley and the EPA preamble “explained” the President's justification for his decision – if one can use that word – as a decision based upon "Administration policy." On March 12th, this impenetrable phrase was at best an empty vessel that the March 6th White House memo had publicly filled with illegal cost considerations, and at worst a smoke screen for — illegal cost considerations. On Friday, the White House spokesperson swept aside that smoke screen and publicly confirmed what we knew all along -- that “Administration policy” was code for the unlawful cost considerations that drove the President personally to overrule EPA’s public welfare standard for ozone, on the way to becoming Science Decider in Chief.

The Mercury Fallout Continues

2008-02-19T15:21:20Z

The AP's Joe Hebert has written a powerful article on a scandal emerging from EPA in the wake of the U.S. Court of Appeals for the D.C. Circuit unanimously overturning EPA's mercury rules for power plants. The AP article appeared the day before a hard-hitting, dead-on editorial by the New York Times criticizing EPA for issuing so many illegal and harmful Clean Air Act rules under this administration.

Hebert's article laid bare contradictions between what EPA represented to the Court about its mercury rule, and contrary actions by agency officials before and after those representations:

While arguing in court that states are free to enact tougher mercury controls from power plants, the Bush administration pressured dozens of states to accept a scheme that would let some plants evade cleaning up their pollution, government documents show.

The article goes on to discuss example after example in which internal EPA emails and state officials confirm that EPA mounted a relentless campaign to pressure states not to restrict mercury pollution trading in defiance of EPA's wishes, and not to adopt state rules more protective than the lax and languid EPA approach.

In perhaps the most wan and non-responsive response from an EPA spokesperson this year -- which Hebert highlights as a stand-alone paragraph that reads like a punchline to a bad joke -- "An EPA official said the agency's job 'is not to pressure states.'"

Thanks for clearing that up, Mr. EPA Spokesman. We hope that's not the EPA's "job" -- so why was EPA doing it? Stay tuned as EPA predictably tries to deny it was pressuring states, contradicting numerous state officials and squirming uncomfortably when presented with the agency’s own emails.

So what did EPA represent to the Court in its legal brief in the lawsuit over the mercury rules? EPA claimed that its mercury trading rule (CAMR) gave states the discretion to determine "how best to allocate emission allowances to particular sources in the State, to allocate fewer than all the allowances, and even to opt out of the trading program." Addressing the approvability of state mercury programs that differed from EPA’s approach, EPA’s brief said: "the fact that a State chooses to submit a plan to EPA that allocates relatively fewer allowances, and therefore results in lower mercury emissions than is required by CAMR, is not a basis for disapproval of the plan by EPA."

Now here are some examples of internal EPA emails and letters in which EPA threatens disapproval of state mercury programs that depart from EPA’s preferred trading approach or restrict trading more than EPA wished. (Incidentally, my friend Vickie Patton at Environmental Defense deserves tremendous credit for her foresight in seeking these documents from EPA under the Freedom of Information Act; her tenacity in waging a bruising fight with EPA over her FOIA request; and her expertise in analyzing the mountains of EPA documents and understanding their scandalous significance. She supplied the following examples.)

As Vickie correctly explains, Nevada’s mercury program has a “true up” provision that requires coal plants to “give back” mercury allowances that are in excess of actual real-world emissions. Now here are the EPA disapproval threats: “Last week, we re-confirmed with [EPA Clean Air Market Division] staff and management that because NV’s plan contains the give back provision, NV’s CAMR State Plan is not approvable.” March 1, 2007 Internal EPA Notes titled “NDEP CAMR TALKING POINTS.” “‘True up’ issue is the deal breaker but don’t need to elaborate too much.” April 20, 2007 Internal EPA notes on Nevada mercury program.

That last sentence is an especially nice touch – the “deal breaker” with the Nevada program was the restriction on allowances that EPA would tell the Court was allowed in its legal brief exactly two weeks later. But EPA didn’t “need to elaborate too much” about this because, well, it would be damning and uncomfortable to EPA for the truth to be revealed.

EPA’s disapproval threat to Colorado: “[I]t appears that the new provisions regarding Hg allocations in section III.B.2 are inconsistent with CAMR and with EPA’s model trading rule and so are not approvable.” March 28, 2007 email from EPA to Colorado.
EPA’s disapproval threat to Montana: “By requiring the sources in Montana first attempt to purchase allowances from sources within Montana, the program is placing restrictions on trading that EPA could not accept within the national cap-and-trade program.” Feb. 21, 2006 email from EPA to Montana.
EPA's disapproval threat to Georgia: "EPA would disapprove Georgia’s CAMR State Plan on the grounds that the Georgia Mercury Trading Rule is intended to, and in fact does, create a trading restriction that limits the ability of Hg Budget units to transfer Hg allowances to Hg Budget units in Georgia for use in meeting the allowance-holding requirements of the EPA-administered Hg trading program.” Feb. 16, 2007 EPA comments to Georgia.

Following these EPA threats, Montana and Georgia conformed their stronger state programs to EPA's demands, Nevada and Colorado did not.

The American people deserve answers to the questions why EPA was coercing states to weaken or abandon stronger mercury cleanup rules, and why EPA was misrepresenting its actions in legal filings with federal courts. The public deserves accountability here. To paraphrase Bob Dylan, let's hope a hard rain's a-gonna fall.

F.A.Q. About the Court Decision Overturning EPA’s Illegal Mercury Rule for Power Plants

2008-02-11T04:25:27Z

On February 8th, the U.S. Court of Appeals for the D.C. Circuit sided with NRDC and a coalition of public health groups, tribes, and states, ruling that EPA had illegally evaded the protective Clean Air Act safeguards requiring deep and timely reductions in toxic air pollution, including mercury, from the nation’s coal-fired power plants. The Court further ruled that EPA had illegally substituted a mercury pollution trading scheme for the protections required by the Clean Air Act. On the heels of the decision, EPA and utility industry spinmeisters were out in full force condemning the outcome and spreading nonsense like so much pollution from smokestacks. Readers of this site wondered about that spin and other aspects of the Court’s ruling, so I have developed these responses to some frequently asked questions.

EPA and industry representatives claim that the basis for the Court decision was purely a “technicality.” Is that true? EPA was required to impose the most rigorous pollution controls and deepest pollution reductions mandated by the Clean Air Act to cut all toxic air pollutants, including mercury, from power plants. If EPA wished to avoid this obligation, Congress required EPA to demonstrate that the toxic emissions from no power plant in the country would “exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any” power plant. EPA could not make this showing and did not even pretend to do so. Instead, EPA concocted a series of tortured legal argument to evade these critical showings. The Court had no difficulty finding these arguments to be “not persuasive,” declaring further that EPA’s explanation “deploy[ed] the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of” the law. It is no coincidence that EPA and certain industry representatives that dismiss the Court’s decision as a “technicality” were the same parties that authored or supported the illegal rule, willing to subject the American people to excessive and illegal toxic pollution without being able to show that the public and environment would not be harmed. This basis for the Court’s ruling is hardly a “technicality”; instead it is fundamental to the public health priorities of the Clean Air Act.

Is this the first time a federal court has mocked EPA legal arguments by comparing them to characters from Lewis Carroll’s “Alice in Wonderland”? Technically yes. But in a 2006 ruling, these same three judges on the D.C. Circuit Court of Appeals struck down yet another harmful and illegal EPA Clean Air Act rulemaking. The judges wrote that EPA’s fanciful legal position would make sense “only in a Humpty Dumpty World,” citing Lewis Carroll’s “Through the Looking Glass.” One might have thought the Mad Hatter a more apt Lewis Carroll character to invoke in the Court’s mercury ruling, since that name arises from the tragedy of hat makers in 19th century England suffering neurological damage from mercury used to cure the felt in hats. But the Court here found EPA’s actions more similar to the capricious Queen of Hearts in “Alice in Wonderland," since EPA had -- in the Court’s words -- “substituted [its] desires for the plain text” of the law.

Was EPA delusional or receiving bad legal advice to believe this rule actually would survive legal challenge? While it is tempting to believe EPA suffered from the same mercury-induced neurological damage that drove hatters mad in 19th century England, a simpler and more sinister explanation fits. I am confident that EPA political appointees had been advised by agency attorneys (the country’s finest clean air attorneys) – and no doubt by Justice Department attorneys too – that the mercury rule was unlikely to survive legal challenge. But the EPA political bosses did not care, or were prepared to run that extremely high legal risk – which amounts to the same thing in practice. EPA would be carrying industry’s (mercury-laced) water either by: (1) achieving the remote possibility that the grossly weaker, slower rules would survive legal challenge; or (2) the real bet, delaying power plant toxic controls by 4-6 years and saving utilities billions of dollars even when those rules were destined to be struck down in court. EPA lost but industry still won.

What does the Bush EPA have against the word “any”? Is it personal? It is true that this court ruling marks at least the third time that the D.C. Circuit has struck down an EPA Clean Air Act rulemaking for violating a statutory prohibition by defying the plain meaning of the word “any.” A 2006 D.C. Circuit ruling overturned an EPA attempt to exempt from pollution controls emissions increases resulting from “any physical change,” which the EPA interpreted to mean virtually no physical change. And a 2007 D.C. Circuit ruling rejected an EPA attempt to exempt from rigorous pollution controls the emission of carcinogens and other air toxics from “any facility which combusts any solid waste material.” One school of thought holds that the EPA’s vendetta is not directed at the word “any,” but rather at any two-syllable word ending in “y.” This would also explain the agency’s ridiculous legal position in a Clean Water Act case where the D.C. Circuit rejected an EPA rule in which EPA interpreted the law’s restriction on “daily” pollution releases to waterbodies to allow daily limits to be ignored in favor of weaker “annual” limits. (Yes, EPA had argued daily meant annual.)

The real explanation is more encompassing and therefore more accurate: there is a prevalent strain within EPA -- fostered by but not limited to political appointees – that approaches the responsibility of statutory interpretation with a linguistic relativism that verges on nihilism. Under this EPA school of thought and practice, words in statutes mean whatever EPA wants them to mean. While legal doctrines afford federal agencies discretion in areas where they are considered expert, for example in scientific matters, EPA abuses these doctrines in order to distort the act of reading the English language into a policy play thing. This is precisely why one sees courts resorting to rebukes that sound “like a civics lesson by an exasperated instructor” and “The Collected Works of Lewis Carroll” to characterize the absurdities of EPA’s positions.

EPA’s strained legal interpretations and its repeated defiance of statutes and court precedents have already caused long-term damage to the standing of EPA before federal courts, especially in the D.C. Circuit. But the more pressing concern, frankly, is that D.C. Circuit judges will exhaust the list of characters from “The Collected Works of Lewis Carroll” before EPA corrects its lawless behavior.

EPA’s spokesperson decried the Court’s ruling, saying it now means “the U.S. has no national regulation to cut mercury from existing power plants.” Isn’t that a bad outcome for the environment? To put it bluntly, EPA’s claim is disingenuous prattle. The actual national regulation that EPA was relying upon between now and 2017 to require mercury reductions from power plants remains in place and was unaffected by the Court’s ruling. So EPA’s claim is intentionally and cynically misleading for uninitiated readers who naturally would not know the full facts about EPA’s rule.

The illegal EPA mercury rule struck down by the Court had established a model two-phase cap-and-trade program for mercury: it set the first "cap" in 2010, corresponding to 29% reductions in national power plant mercury emissions, and the second cap in 2018 corresponding to 70% reductions. But EPA itself admitted that the rule’s phase I cap would be achieved entirely from coincidental mercury reductions achieved by another regulation, the so-called Clean Air Interstate Rule (CAIR) that reduces SO2 and NOx emissions and thereby achieved incidental mercury reductions. In other words, EPA’s illegal mercury rule required no mercury reductions beyond what another regulation was already achieving for the next 9 years.

This other regulation, CAIR, was completely unaffected by the Court's mercury ruling, and so were the mercury reductions that CAIR will achieve. So the Court's decision will not result in less mercury reductions being required under federal law than EPA was already counting on under another regulation (CAIR) between now and 2017. EPA's wounded complaint that there is no national regulation of mercury as a result of the Court's ruling is utter nonsense as a practical matter, since its illegal mercury rule did not require greater mercury reductions than CAIR -- which remains in force -- until 2018 anyway. And while the mercury rule’s defenders will argue that the phase II cap would have driven early reductions prior to 2018, those reductions would not be nearly as great as what the Clean Air Act requires for all new and existing power plants, or achieved as early as what the law requires.

On “average,” there is no air pollution

2007-10-16T22:57:29Z

What do Chinese Communist Party air pollution officials share in common with Bush administration air pollution officials?

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.

The Two Faces of Steve

2007-10-15T20:19:17Z

“This is a true story.”
-- Opening line in 1957’s film, The Three Faces of Eve.

Administrator Steve Johnson's Environmental Protection Agency has a split personality. And obsessive compulsive disorder probably should be added to that diagnosis too.

The root cause -- or is it the symptom? -- is the Clean Air Act's "new source review" program. On one hand, Mr. Johnson's EPA justifiably celebrates the historic $4.6 billion Clean Air Act enforcement settlement with American Electric Power over the company's violations of new source review requirements. On the other hand, Mr. Johnson has personally signed an EPA rulemaking proposal that would actually legalize future harmful violations of the same type and magnitude committed by AEP and other utility company defendants over the past 2-3 decades. Just last month EPA announced its intention to adopt this irresponsible rule in early 2008 -- the Bush administration's parting gift to the utility industry.

An editorial in today's New York Times captures this hypocrisy nicely. The editorial observes correctly that the proposed rulemaking changes pushed by the administration “would have made it almost impossible to bring the case against A.E.P. in the first place, much less win it.”

Not only would this rule legalize the very same destructive polluting activities committed by the utility defendants in EPA's long-running Clean Air Act enforcement cases. The Bush administration’s mere decision to propose this rulemaking precipitated a change in EPA enforcement policy that effectively has made the disastrous rule proposal the law of the land today. As the Washington Post detailed last week in the second half of this article, the prevailing air pollution enforcement policy of the Bush EPA treats the proposed rule – rather than the much stronger law still on the books -- as the law of the land when enforcing new source review against coal-fired power plants. In other words, the Bush administration is mounting new enforcement cases only against coal-fired power plant owners that violate the grossly weaker proposed rules that have been announced but not adopted, allowing illegal air pollution by utilities to escape prosecution as if the more protective law they violated never existed.

As reason for the enforcement reversal – rather than the real reason -- the memo offers the farcical explanation that the agency will refocus its resources on other areas likely to produce significant environmental benefits. This despite the fact that EPA’s Clean Air Act enforcement efforts never have and never will reduce as much air pollution as the new source review enforcement cases against coal-fired power plants.

I became suspicious as soon as I saw that this enforcement policy memo was signed by EPA’s politically-appointed Deputy Administrator hailing from the White House, Marcus Peacock, rather than the political appointee heading EPA’s enforcement office, Granta Nakayama. After all, the memo reflects a radical change in EPA enforcement policy governing the most successful agency enforcement endeavors under this administration, and by all rights should have been issued by EPA’s enforcement chief. Then my suspicions were confirmed by several EPA sources, who related that Mr. Nakayama – a man of considerable integrity -- had refused to sign the memo himself, due to its harmful effects on the agency’s enforcement powers and prerogatives. So Mr. Peacock -- Mr. Johnson’ second-in-command – did the dirty deed.

At about the same time EPA adopted this sweeping but little-noticed change in enforcement policy in October 2005, a damning memo authored by the civil servant head of EPA’s air enforcement division leaked out of the agency (not by its author). This memo details the harmful impacts the proposed rule would have on EPA’s ongoing enforcement efforts against coal-fired power plants. It concludes that it would be "better ... to not tinker with the [new source review] test at all," because the proposed rule would be "fatal" to the agency's ongoing enforcement cases, contrary to congressional intent in enacting the relevant Clean Air Act provisions, "inconsistent with ... D.C. Circuit" court decisions interpreting those provisions, and "effectively unenforceable" due to the lack of "record keeping and reporting requirements."

So why is the Bush administration rushing to finalize a politicized, indefensibly damaging rule that drastically weakens the law and rewards electric utility companies -- at the expense of air quality, the environment, and the health of the American people? Why have political forces within the administration pursued a relentless campaign to sabotage the new source review enforcement cases against power plants, over the objections of dedicated professional staff at EPA and the Department of Justice?

Electric utility companies stand to save hundreds of millions if not billions of dollars by avoiding liability for past and ongoing air pollution violations, and by avoiding future costly pollution controls. According to the Center for Responsive Politics, these utility companies and their trade association contributed millions of dollars to the President’s election and re-election campaigns in 2000 and 2004, respectively. As the soldier’s character played by Vince Edwards in The Three Faces of Eve put it: “When I spend 8 bucks on a dame, I don't just go home with the morning paper, y'know what I mean?”

Good Government at EPA

2007-10-11T04:43:00Z

EPA Deputy Administrator Marcus Peacock, the second highest-level political appointee at the agency, deserves congratulations for opening up his official EPA blog to public comment after his initial foray into the blogosphere lacked that public feedback capacity.

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.

EPA: "Toxic Air Pollution? Cancer? Whatever."

2007-08-24T02:06:31Z

So it's not often that you can just quote EPA's own media spin to see the self-evident absurdity of their latest attack on the environment, but here goes: "A recent analysis by EPA on the risks from air toxics emitted from petroleum refineries found that the risks to human health and the environment are low enough that no further controls are warranted." Accordingly, EPA proposes to require no additional emissions reductions from oil refineries because the risks are "acceptably" low.

That's right -- oil refineries. Those clean, green, efficient machines whose pure, floral emissions could be bottled and sold as air fresheners in organic grocery stores.

The media spin above attempted to put a cheerful face on an ugly EPA announcement yesterday that oil refinery air pollution is clean enough for the agency to ignore. That's right -- EPA announced a proposed rule that concludes that tens of thousands of tons of toxic air emissions from U.S. oil refineries are not risky enough to warrant any additional safeguards for the breathing public.

EPA's decision concerns the Clean Air Act obligation to respond to any public health risks remaining from oil refineries' toxic air pollution, following the agency's adoption of technology control standards in 1995. Congress recognized that after pollution control technologies are applied, pollution coming from these facilities might still pose unacceptable health risks to the public. Thus, in 1990, Congress instructed EPA to examine the remaining or "residual" risk from all toxic pollution sources. The agency was supposed to determine whether the first-generation technology standards reduced lifetime cancer risks to the public from toxic pollution to less than 1-in-1-million. If cancer risk exceeds 1-in-1 million, EPA must require better control measures to protect the public by reducing risks to below 1-in-1 million. In yesterday's announcement, however, EPA asserts that the appropriate threshold for action is not 1-in-1-million, but 100-in-1 million. And because the agency finds toxic emissions from oil refineries to pose cancer risks of 70-in-1 million, EPA indicates its preferred approach is to do nothing about these cancer risks and to require no additional pollution controls at oil refineries.

EPA thus proceeds to ignore acknowledged risk levels that are 70 times higher than allowed by law. And EPA itself admits that its do-nothing approach would subject 460,000 Americans to cancer risks from oil refineries higher than 1-in-1 million.

EPA estimates that approximately 90 million Americans live within 30 miles of a refinery, and 60% of refineries impose lifetime cancer risks on the public higher than 1-in-1 million. (EPA utterly ignores the cancer risks to individuals living more than 30 miles from petroleum refineries, presumably because of the gargantuan, invisible, ultra fine-mesh nets that encircle refineries at a 30-mile perimeter, and prevent refinery air pollution from traveling more than 30 miles. Natch.)

As if this all were not bad enough, it's important to realize that even the unlawfully excessive cancer risks that EPA is willing to impose on the public are fraught with flaws that would be laughable were they not so tragic. In fact, the health risks are higher than EPA lets on.

First, EPA refused to require the nation's 153 petroleum refineries to provide emissions data and other essential information to the agency that are necessary to perform a meaningful risk assessment – even though EPA has clear legal authority to require such information. (Industry and the White House routinely collaborate to block EPA attempts to gather such crucial data.) Instead, EPA started with a hodgepodge of some actual emissions data from 2002 combined with guesses (which EPA artfully calls "best estimation methods"). Then EPA incorporated site-specific information for just 22 facilities – information helpfully furnished by the American Petroleum Institute, the oil industry's trade association. Next, EPA invited comments and corrections from the oil companies themselves, which resulted in the vast majority of instances in the oil companies estimating emissions data to be lower than EPA and the states had calculated. EPA failed to collect any additional site-specific data for a remarkable 81 of the 153 refineries.

EPA's action was accompanied by a quiet but highly revealing passage in which the agency announces wanly that its "review of the data indicates that there may be a low bias in reported emissions for many facilities." Translation – but first steel yourself for this shock – oil companies are under-reporting their toxic emissions. EPA then recites an astonishing laundry list of reasons why the agency's risk assessment may be flawed because of under-reported toxic emissions data. EPA admits it is missing emissions data attributable to: facility noncompliance; emissions during malfunctions, startups and shutdowns; unreported emissions from leaks; sources that are "unexpected," "not measured" or "not considered"; and process sewers, wastewater systems, fugitive emissions and tank roof landings. Finally, EPA admits sheepishly that "for many facilities the physical characteristics (i.e., stack height, physical location) of the reported sources may be inaccurate for detailed risk characterization purposes."

Armed with this wholly inadequate industry-biased data, EPA then proceeded to engage in a series of abusive manipulations designed to misrepresent even further cancer risks to the public. EPA ignored background ambient risk levels, even though required by law to account for this; EPA ignored cumulative risks taking into account nearby pollution sources; and EPA even ignored the risks from toxic pollution emitted by certain equipment located at petroleum refineries. The agency arbitrarily ignored the cancer risks posed by at least three significant air toxins (chlorine, hydrogen fluoride, and hydrochloric acid) simply because they are emitted by pieces of equipment covered by a rule the agency is not considering now. So EPA ends up not addressing the risks from these other pieces of equipment. The perverse result of these blatant manipulations is to allow EPA to underestimate – and misrepresent – the overall cancer risks posed by petroleum refineries.

The Reuters article covering EPA's announcement contains an appreciative quote from an American Petroleum Institute spokesman thanking EPA for its "collaborative effort" in producing this do-nothing decision. The article notes further that API lobbies for big U.S. oil refiners like Valero Energy Corp. That would be the same Valero that the Justice Department and EPA nailed in a Clean Air Act enforcement lawsuit just a few days ago to the tune of $238 million. This followed on the heels of a 2005 Clean Air Act enforcement settlement between the feds and Valero, in which the company was forced to pay $700 million. To date, the Justice Department and EPA have reached Clean Air Act enforcement settlements with 89 oil refineries producing a remarkable 84% of domestic refining capacity. These refineries are spread across 26 states and are being required to spend $4.7 billion on pollution controls as a result of violating the Clean Air Act. Unfortunately, these settlements will take as long as 10 years to deliver their promised pollution cuts, and more oil company lawbreakers continue to stiff-arm federal enforcers. Meanwhile, oil refineries will continue to pump tens of thousands of tons of toxic air pollution each year into communities where 90 million Americans live.

But rest assured, the Bush EPA considers the risks posed by the nation's clean, green oil refineries to be "acceptably" low.

Cheney and the Politics of Air Pollution

2007-06-29T01:26:59Z

The Washington Post has a fascinating four-part series examining the role of Vice President Cheney in the Bush administration. The final article, Leaving No Tracks, explores several high-profile environmental controversies during this administration in which the Vice President personally intervened.

One of the administration attacks on environmental protections that the Post article discusses is a Clean Air Act loophole promoted by the Vice President to weaken longstanding air quality safeguards against industrial sources of air pollution, like power plants and oil refineries. NRDC was one of several environmental groups that, along with a dozen or so state attorneys general, succeeded in having a court first block this loophole from taking effect in 2003, and then overturning the rule in 2006. I was one of several attorneys representing the environmental group challengers. The article confirms what we suspected at the time, that EPA Administrator Whitman had resigned to avoid signing Cheney’s final rule.

We did know that the Bush political appointee heading EPA's enforcement office, J.P. Suarez, had this to say about the administration’s pro-industry "reform" of the "New Source Review" air quality protections, in an interview shortly after he too had resigned: "The goal of NSR reform was to prevent any enforcement case from going forward. Some people thought the [NSR enforcement initiative against power plants and oil refineries] should never have been brought. The reform was really designed to thwart our ability to do it." And this: "because we were so inflamed and overheated about the reform, we ended up with a reform package that doesn't pass the laugh test." Suarez pointed to the White House for these views.

To gain some real world appreciation for how destructive the EPA air pollution loophole would have been had we not blocked it in court, consider this. EPA did not contest evidence we presented to the court that the loophole would have allowed smog-forming pollution increases of over 21,000 tons per year from a single power plant used as an example. To provide a basis for comparison, 21,000 tons is nearly one-and-a-half times the total amount of this pollution emitted annually by all businesses and vehicles located in the District of Columbia. And the EPA loophole was made available to some 20,000 industrial polluters nationwide, allowing untold pollution increases.

After the court overturned the EPA rule, I received exuberant, congratulatory calls from attorneys thrilled about the fate of the profoundly illegal, harmful, and politicized loophole. And where were these attorneys calling from? EPA.

One of the revelations in the Post article is Whitman's account of a meeting with the President, in which she plops down a folder containing 10-12 inches of news clips strongly criticizing the administration's air pollution loophole -- even before it had been adopted. Whitman's hope, futile as we know now, was to dissuade the President from directing EPA to finalize the dirty rule.

What makes this previously undisclosed account especially significant to me is that the hail of negative media coverage that Whitman presented to the President was prompted in large part by leaked copies of EPA's draft rulemaking proposal and draft final rule that NRDC had obtained and provided to reporters. The Fourth Estate played the invaluable democratic role of alerting the American people to the administration's destructive plans. But it was ultimately the third branch of government, the judiciary, that public interest attorneys and state attorneys general needed to appeal to in order to block the administration's lawbreaking.

Finally, the Post article brings to mind a report issued before the current administration took office, in the summer of 2000, by a shadowy body in Washington called the National Petroleum Council. The oil industry report targeted the New Source Review law for "reform" and condemned the EPA New Source Review enforcement lawsuits against oil refiners. And who sat on the Petroleum Council’s Committee on Refining that produced this report? Then-President and CEO of the Halliburton Company -- Richard B. Cheney.

Smog, EPA and NAM

2007-06-21T22:47:42Z

NAM, industry's illegal war, and the smell of ozone in the morning: Industry is waging a carpet-bombing lobbying campaign, led by the National Association of Manufacturers or NAM, urging EPA Administrator Stephen Johnson to defy the law and adopt a health standard for ground-level ozone (smog) pollution that won't protect Americans.

This morning, EPA conditionally surrendered to that attack, presumably under coercion from the White House, by leaving on the table the option to satisfy NAM's illegal wishes, and maintain the current ozone standard that EPA's blue-ribbon panel of scientists has concluded unanimously has "no scientific justification" for being maintained. Instead, these science advisors conclude that the current ozone standard of 84 parts per billion (ppb) "needs to be substantially reduced" to between 60 and 70 ppb in order to protect Americans.

Let's harken back to 2001, when Justice Scalia writing on behalf of a unanimous Supreme Court in Whitman v. American Trucking Associations ruled that any consideration of cost to industry or economic impacts would violate the Clean Air Act when EPA sets health standards for ozone or other air pollutants. Flash forward to 2007, when NAM lobbyists are brazenly urging the administration, in back rooms and in the press, to maintain today's unprotective ozone health standard by . . . considering cost to industry and economic impacts.

NAM either has not read Justice Scalia's unanimous opinion or is cheerfully defying the Law of the Land because, hey, it beats spending money to protect the public from dangerous industrial pollution.

So what's next on NAM's list of laws and Supreme Court rulings to defy? Brown v. Board of Education? The Supreme Court rulings upholding the constitutionality of child labor laws? Makes you wonder where NAM draws the line between laws they will follow and laws they will flout.

Also makes you wonder why EPA would purposefully preserve its ability to adopt an unprotective ozone standard that has "no scientific justification." Could it be because Johnson's political bosses in the administration have already decided to keep the indefensibly weak 84 ppb standard and just did not want to suffer the bad publicity of announcing that intention today?

So now all eyes will turn toward the waning days of this administration, before they board the helicopters to leave D.C., when EPA must adopt a final ozone standard: will EPA follow the unanimous Supreme Court ruling and unanimous conclusion of their science advisors by strengthening the ozone standard to no higher than 60-70 ppb? Or will the EPA's experience with NAM and the White House leave the agency shell-shocked, traumatized, and unwilling to protect Americans?