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House G.O.P. Continues Assault on Clean Air Safeguards With Parade of Horribles

2012-02-08T16:57:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

Americans continue to support clean air safeguards in resounding numbers [pdf], yet Congressional Republicans persist in attacking standard after life-saving standard to reduce dangerous air pollution. This week is no exception to that deadly rule.

The House of Representatives Subcommittee on Energy and Power is holding a hearing today to attack EPA’s recently-finalized Mercury and Air Toxics Standards for power plants. The Republicans’ witness list indicates this hearing is shaping up to be yet another one-sided slam on clean air standards that will save tens of thousands of American lives. But the facts and overwhelming health benefits behind these standards outweigh the complaints of outliers and naysayers.

EPA’s historic Mercury and Air Toxics Standards (MATS) for the first time set national limits on mercury, arsenic, lead, acid gases and other toxic air pollution from power plants that burn coal and oil. These standards are more than a decade overdue and will result in enormous health benefits to the American people. EPA estimates [pdf] that starting in 2016, the Mercury and Air Toxics Standards every year will prevent:

up to 11,000 premature deaths;
nearly 5,000 heart attacks;
130,000 asthma attacks;
5,700 hospital and emergency room visits; and
540,000 days when people miss work and school.

An Energy and Power subcommittee Republican staff memo complains [pdf] about the costliness of the MATS standards, but then incredibly ignores the far greater benefits that outweigh costs by up to 9 to 1. The standards have annual estimated benefits of $37 to $90 billion, compared to only $9.6 billion in compliance costs – meaning that for every dollar spent to reduce pollution, Americans get $3-9 dollars back in health benefits.

Similarly, witnesses for the Republican majority at today's hearing attempt to ignore the facts behind these life-saving standards, but their claims are worth examining and rebutting.

Republican Witnesses

Anne E. Smith, Ph.D., NERA Economic Consulting

The majority’s first witness attacks the EPA Regulatory Impact Analysis accompanying the Mercury and Air Toxics Standards, distorting and ignoring the benefits of reducing toxic air pollution from power plants, in an attempt to discredit the standards.

As my colleague Laurie Johnson points out, Dr. Smith and her firm NERA have “been in the business of anti-regulatory industry-funded studies for a long time. Over the years, the company has conducted numerous analyses at the behest of polluters.” Dr. Smith’s written hearing testimony is no exception – she claims that EPA is misrepresenting the benefits of the MATS by also including benefits obtained from reducing particulate matter (PM2.5) pollution and that only the benefits of reducing toxic air pollution should be calculated.

Dr. Smith’s testimony follows in the same leaden footsteps as a December letter [pdf] to EPA from Rep. Fred Upton (R-MI) and other House Republicans. In that letter, Upton extensively questions the agency regarding fine particle pollution (PM2.5), its hazards and the monetized benefits from reducing that pollution.

Just last week, EPA responded [pdf] to Rep. Upton’s concerns at length, noting that for particle pollution, the “scientific literature provides no evidence of a threshold below which health effects associated with exposure to fine particles – including premature death - would not occur.” (my emphasis added)

House Republicans, their witness Dr. Smith (and later, Dr. Goodman), and industry lobbyists should know that many air toxins emitted by power plants are also PM2.5 pollution in their size and composition (despite Smith's baffling claim to the contrary). They realize that reducing these air toxins with a small number of commonly used pollution control devices will also reduce PM2.5. It is only logical and appropriate, accordingly, to calculate the total benefits for Americans from reducing all these pollutants.

It would be perverse to deny or ignore these total benefits, for the simple reason that the pollution control equipment needed to meet the Mercury and Air Toxics Standards will also reduce the PM2.5 pollution responsible for so many premature deaths, heart attacks and asthma attacks. It is in fact physically impossible to reduce all toxic air pollution from power plants without also reducing significant amounts of dangerous PM2.5 pollution.

When industry lobbyists and politicians decry the PM2.5 reductions achieved by the Mercury and Air Toxics Standards, what they really are attacking are the strong standards and pollution controls required to reduce all toxic air pollution from power plants.

Why? Because the only way to reduce all toxic air pollution from power plants is with the pollution control equipment that also reduces PM2.5. In sharp contrast, the only way to actually do what these critics are urging is to cripple the Mercury and Air Toxics Standards so drastically that pollution controls would not be required that reduce PM2.5 and the majority of toxic air pollutants emitted by power plants.

At bottom, it is outrageous – and even immoral – to seek to deny the American people the full benefits delivered by installing pollution controls that reduce so many forms of dangerous air pollution. This enormous health achievement and pay-off deserve celebration. Instead, some politicians and industry lobbyists seem to prefer cynical attacks and the elimination of Americans' right to clean air.

Because Republicans and industry lobbyists know all this, they have found themselves in an untenable position, from which they have concluded they must resort to downplaying or denying the benefits from reducing deadly PM2.5 pollution. EPA's letter squarely refutes these desperate claims, something I address below.

Furthermore, what Dr. Smith and House Republicans understand but choose not to mention is that EPA lacks the analytic tools [pdf, ES-1] to quantify and assign monetized benefits from cutting certain types of toxic pollution, such as acid gases and some forms of mercury. This is not because those air toxin reductions have no benefits, or even because those benefits are small. EPA believes that “these unquantified benefits could be substantial, including the overall value associated with HAP reductions, value of increased agricultural crop and commercial forest yields, visibility improvements, and reductions in nitrogen and acid deposition and the resulting changes in ecosystem functions.” (ES-9)

However, EPA can and does quantify the very real co-benefits from reducing PM2.5 pollution, which is also significantly reduced by the MATS standards. As EPA should, since those are real and substantial benefits to Americans – up to $90 billion annually.

It's actually pitiful to witness last-ditch political efforts to avoid responsibility for cleaning up deadly toxic air pollution that must resort to pretending the enormous benefits of clean air don't exist. Pretending pollution doesn’t kill people doesn’t stop it from happening; only laws like the EPA power plant standards can do that.

Darren MacDonald, Gerdau Long Steel North America

Mr. MacDonald’s testimony on behalf of Gerdau Steel repeats industry talking points on alleged “reliability problems” that he believes will result from the EPA standards. MacDonald asks the question “what if these government projections [relating to electric reliability] are wrong or even partially wrong?” Luckily for Mr. MacDonald, the federal government, regional transmission operators, and numerous private entities have studied the MATS impacts on reliability and concluded that the standards should present no reliability concerns.

EPA has extensively studied [pdf] this issue and concluded no unmanageable issues should arise. So has the Department of Energy, agreeing [pdf] that the standards will not “create resource adequacy issues.”

The Congressional Research Service similarly has concluded [pdf] that industry reliability claims were not based on EPA’s standards as proposed or finalized, and that it is “unlikely that electric reliability will be harmed by the rule.” Private sector reports from M.J. Bradley & Associates, the Bipartisan Policy Center, and Charles River Associates confirm these findings. So does PJM interconnection, a regional transmission organization.

MacDonald also raises concerns about electricity prices. These concerns have been addressed by many sources. As I’ve said before, EPA estimates [pdf] (reviewed and approved by OMB) indicate that the Mercury and Air Toxics Standards could add approximately $3-4 to some consumers’ monthly electricity bills.

The Congressional Research Service report similarly found that “[e]lectricity prices have declined more than 20 percent in real terms since 1980. The impact of prices changes would be relatively small compared to this downward trend, and well within the normal range of historical price fluctuations.” Power plant reliability and electricity price issues have been addressed and will continue to be addressed, and the Mercury and Air Toxics Standards have been shown to be hugely beneficial to the American people.

Officials at Gerdau Steel, Mr. MacDonald's company, know that mercury is a dangerous pollutant that needs to be cleaned up. In the past, Gerdau has shown concern over mercury pollution, describing it as a “persistent and bio-accumulative neurotoxin of global concern.” Power plants are the nation’s largest source of man-made mercury emissions. It’s well-documented [pdf] that mercury pollution harms children’s developing brains, and EPA’s standards will reduce mercury emissions by approximately 90%. If Gerdau is committed to reducing mercury from its own industrial operations, as it says [pdf], why shouldn’t power plants have to clean up as well?

Ralph L. Roberson, RMB Consulting & Research, Inc.

Ralph Roberson’s website notes that his current clients include the litigious industry lobbying front, the Utility Air Regulatory Group. With clients like these, it comes as no surprise that Roberson’s written testimony repeats misguided industry talking points that would require radical rewrites to the Clean Air Act and would result in significantly more air pollution for Americans.

Roberson’s suggestions would severely weaken the Clean Air Act and overturn multiple federal court decisions to gut strong toxic air pollution standards. The current Clean Air Act requires these safegaurds to achieve deep cuts in dangerous mercury, lead, dioxins and acid gases from power plants – our nation’s largest source of industrial mercury emissions.

Roberson's testimony urges the elimination of the most protective legal standard for reducing toxic air pollution that the Clean Air Act has included for over twenty-one years. EPA has issued over 100 toxic air pollution standards for other industries during this period, without economic disruption, basing standards on the cleanest plants that achieve the most reductions in toxic air pollution. Power plants – the biggest polluters of them all – should be no exception.

Julie E. Goodman, Ph.D., Gradient Corporation

Dr. Goodman, like Dr. Smith and NERA, attempts to discredit EPA’s Mercury and Air Toxics Standards for power plants because the standards will also clean up PM2.5 pollution. Dr. Goodman has historically testified or advocated on behalf of industry groups such as the American Petroleum Institute to advocate outlier industry positions on the science of clean air.

Indeed, industry consultants with the Gradient Corporation have been favored witnesses for House Republicans during their year-long assault against clean air safeguards. The Gradient Corporation’s Dr. Peter Valberg was invited by the G.O.P. majority to testify at a legislative hearing on two Republicans bills to severely weaken and delay health safeguards against mercury, arsenic, lead and other toxic emissions from incinerators, industrial boilers and cement plants. I opposed [pdf] both bills at the same hearing.

Dr. Valberg disputed and downplayed associations between mortality, asthma attacks and outdoor particulate matter pollution – all without citing a single study, much less a peer-reviewed study, in his written testimony. [pdf]

In her written testimony [pdf] for this week’s hearing attacking the mercury and air toxics standards for power plants, Dr. Goodman advances the astonishing suggestion that there is “no correlation between reducing PM2.5 and health benefits.”

This is an outlier position, and there are well-accepted associations between fine particle pollution (PM2.5) and serious health problems including asthma attacks, heart attacks, strokes, and even death. In 2009, EPA assembled a group of leading experts to study [pdf] the extensive literature on particle pollution. That body concluded [pdf, ch.2], based on the available literature, that a causal relationship exists between PM2.5 and mortality and cardiovascular effects; a likely causal relationship between PM2.5 and respiratory effects; and a "suggestive causal relationship" between PM2.5 and cancer and reproductive problems.

Dr. George D. Thurston, tenured Professor of Environmental Medicine at the New York University School of Medicine, testified [pdf] before the House Subcommittee on Energy and the Environment in 2011 to update and reaffirm these findings. Dr. Thurston described the impacts of fine particle pollution as follows:

Fine particles (PM2.5), such as those that result from power plants and diesel trucks, defeat the defensive mechanisms of the lung, and can become lodged deep in the lung where they can cause a variety of health problems. New evidence indicates that short-term exposures to air pollution cause both respiratory and cardiac effects, including more heart attacks. In addition, my own research indicates that long-term exposure to fine particles increases premature mortality, and such exposures in the general population have been estimated to take years from the life expectancy of people living in our most polluted cities, relative to those living in cleaner cities....

EPA similarly has found [pdf] that the “scientific literature provides no evidence of a threshold below which health effects associated with exposure to fine particles – including premature death – would not occur.” This “no threshold” conclusion was independently reviewed and confirmed by EPA's official Clean Air Science Advisory Committee, the Advisory Council on Clean Air Compliance Analysis (and separately, the Health Effects Subcommittee of this Council), EPA’s Science Advisory Board and the National Academy of Sciences.

But the Republican witness, Dr. Goodman, knows better. In the face of this broad scientific consensus, from the country’s most esteemed and expert scientific advisory bodies and professionals, an industry consultant from the Gradient Corporation suggests that there is “no correlation between reducing PM2.5 and health benefits.”

Reducing particle pollution as a co-benefit of the Mercury and Air Toxics Standards every year will save up to 11,000 lives, avoid thousands of heart attacks and over one hundred thousand asthma attacks. Despite what one carefully selected Republican witness would have you believe, this will mean real health benefits for the American people.

Harrison Tsosie, Navajo Nation

Members of the Navajo Nation and other Native American tribes have expressed support for the Mercury and Air Toxics Standards. Speaking for many of these supporters, Wahleah Johns of the Black Mesa Water Coalition has said the standards are “big news, because until now there hasn't been federal enforcement of these emissions," and “[w]e're very happy the EPA stood their ground on behalf of our children.”

Many members of the Navajo Nation live near power generation facilities. Studies have found that the majority of mercury emitted by power plants tends to deposit locally, meaning those living nearest to power plants, like the Navajo, could stand to benefit most from toxic air pollution standards for power plants.

Reflecting divisions within the Navajo Nation, however, Republicans have chosen instead to invite the Navajo Attorney General, Harrison Tsosie, who opposes the Mercury and Air Toxics Standards. Some within the Navajo Nation have expressed concern over the standards’ alleged impacts on their community, particularly the standards’ impacts on jobs. For her part, “Johns doesn't buy the job loss argument”:

"Just think how many Navajos are going to be employed installing the new equipment," she said. "This rule is going to create jobs, not destroy them."

And if the plants do, in fact, have to shut down, something is going to have to go up to replace all that lost electricity, she argued.

"It opens the door wide for alternative energy," Johns said.

EPA estimates [pdf] that the standards will create approximately 46,000 short-term construction jobs and 8,000 long-term jobs in the utility sector.

Democratic Witnesses

Reverend Mitchell C. Hescox, President and CEO, Evangelical Environmental Network

Reverend Hescox’s testimony highlights the dangers of mercury pollution, its impacts on the unborn, and the terrible moral and environmental justice consequences of power plant mercury pollution. Reverend Hescox’s testimony shows that protecting our children from dangerous neurotoxins such as mercury is a moral issue that should enjoy bipartisan support.

The Evangelical Environmental Network (EEN) has actively supported EPA’s Mercury and Air Toxics Standards in recognition of their enormous public health benefits. In addition to testifying at the hearing, EEN has, among other things, launched a series of ads urging lawmakers to support these life-saving standards. This multi-state bipartisan ad campaign reflects EEN’s position that they “expect members of Congress who claim that they are pro-life to use their power to protect life, especially the unborn”. This is based on EEN’s “belief that mercury offers a significant potential for hindering our children from developing a pure and wonderful life.” Other religious groups, including the National Association of Evangelicals and United States Catholic Conference of Bishops , strongly support the Mercury and Air Toxics Standards as well. As EEN rightly points out, we all want our children to live the healthiest and safest lives possible, and EPA’s Mercury and Air Toxics Standards for power plants help all Americans protect their children from mercury pollution.

Josh Bivens, Ph.D., Acting Research and Policy Director, Economic Policy Institute

Dr. Bivens’ testimony provides an in-depth examination of the employment impacts of EPA’s finalized Mercury and Air Toxics Standards, addressed at greater length in an Economic Policy Institute report entitled “The ‘toxics rule’ and jobs: The job-creation potential of the EPA’s new rule on toxic power plant emissions.”

Dr. Bivens and EPI use a conservative methodology to conclude that due to the availability of labor and other factors, EPA’s Mercury and Air Toxics Standards will mean at least 84,500 jobs in the short term. Using what they believe to be a more realistic methodology, the report estimates up to 117,000 jobs could be created as a result of the standards. Even EPA’s lower estimate [pdf] of 46,000 short term jobs and 8,000 long-term jobs in the utility sector will put Americans back to work building the pollution controls that power plants will install to meet these life-saving standards.

Will Our Elected Representatives Sacrifice 28,000 Lives to Cut a Last-Minute Political Deal?

2011-12-12T21:52:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

Congress enters the week engaged in critical negotiations over an omnibus spending bill and a payroll tax extender package, with Congressional Republicans continuing their furious push to include harmful, unrelated “riders” targeting public health and environmental safeguards.

NRDC president Frances Beinecke has described the sweep of some of these ideological attacks, which have nothing to do with saving taxpayers’ money or improving the economy, but instead are more of the same extreme agenda that has produced over 170 anti-environmental votes in the House alone during the 112th Congress.

Speaker of the House, John Boehner (R-OH), laid down the marker for these negotiations in the form of a deeply irresponsible bill [pdf] aimed at everything from fast-tracking the Keystone XL pipeline to killing protections against mercury and other air toxins from incinerators and industrial boilers.

The latest Republican assault on the mercury safeguards tracks a bill, H.R. 2250, [pdf] that has passed the House but gone nowhere in the Senate. The bill significantly delays and weakens clean-up of toxic air pollution from industrial boilers and incinerators. These facilities are the nation’s second largest industrial source of mercury, a dangerous neurotoxin that harms children’s developing brains.

Last week Senators Susan Collins (R-ME) and Claire McCaskill (D-MO) introduced a bill of disparate proposals, including imposition of a millionaires’ surtax and provisions to extend the payroll tax cut for another year. The bill also included previously-introduced Senate legislation, S.1392, [pdf], that is patterned on H.R. 2250 and also would significantly delay and cripple mercury and toxic air pollution standards for incinerators and industrial boilers.

These harmful House and Senate bills have managed to sustain themselves on the widespread misconception, propagated in the Senators’ own press materials [pdf], that the incinerators-boilers legislation would simply delay toxic air pollution standards for industrial boilers and incinerators by 15 months. (The materials state that the bill “guarantees the 15-months the EPA itself requested to provide the agency with the testing data needed for achievable rules and provides manufacturers with the time needed for the capital planning to comply with these very complex and expensive rules.”)

This is factually incorrect, profoundly so, and misrepresents the actual consequences of the legislation.

Here’s what these irresponsible bills actually do:

The bills do not simply delay the standards by 15 months. Both the House and Senate bills mandate at least a 3.5 year delay in making mercury and air toxics safeguards available to the American people. The bills do this first by delaying promulgation of new standards by a minimum of 15 months and next by prohibiting EPA from setting compliance deadlines any earlier than 5 years after the effective date of the standards. Current law requires that standards take effective no later than 3 years after their adoption.
Both bills void existing standards for incinerators and boilers. S.1392 further eliminates any deadline to issue new standards, meaning the bill would allow final standards to be issued 5, 10 or even 20 years from now, and then the legislation eliminates any industry compliance deadlines.

Even the minimum delay, of 3.5 years, would mean:

Up to 28,350 premature deaths;
Over 17,000 heart attacks;
Nearly 19,000 hospital and emergency room visits;
More than 1.2 million days of missed work; and
Over 150,000 cases of asthma attacks.

And for every additional year of delay, thousands more lives would be lost.

EPA has repeatedly rejected the notion that it needs more time legislated to promulgate mercury and toxic air pollution standards for incinerators and industrial boilers. In fact, EPA recently re-proposed mercury and air toxic standards for incinerators and industrial boilers. These proposed standards are the product of EPA’s reconsideration of standards first finalized in March, 2011. EPA listened to industry concerns about the rule and as a result, the reproposal provides more health benefits, more flexibility, and lower industry implementation costs.

The agency is currently taking comments on these reproposed standards, and expects to finalize them by late spring in 2012. The agency has never said that it needs new legislation to provide more time to finish these standards and EPA opposes the delays and weakening changes in S.1392 and H.R. 2250. For these reasons, the president issued a veto threat [pdf] over H.R. 2250 as it was being brought up for a vote in the House.

Critically, both bills would permanently weaken the Clean Air Act so that standards for these facilities are no longer based on what the best facilities are achieving, but instead on the weakest possible standards under the law. This core feature of both bills gives lie to any claim that these bills do nothing more than delay standards for 15 months. These bills would overturn the Clean Air Act and multiple court decisions and mandate that the agency set standards based on the emissions of the dirtiest sources, rather than the cleanest – meaning even more toxic air pollution from facilities that burn materials such as coal, oil, plastics, scrap tire, and coal ash.

In fact, the bills mandate that EPA base mercury and air toxics standards on the “least burdensome alternative” [pdf, p.2] to the law’s current protective standards – least burdensome to industry, that is, and not the American people that are burdened by carcinogens, neurotoxins, and deadly soot pollution from these incinerators and industrial boilers.

In sum, this legislation, either free-standing in the House or snuck into an omnibus spending bill or “payroll tax” package, would represent an attack on Americans’ right to clean and healthy air. These standards are decades overdue, and both H.R. 2250 and S.1392 would only lead to many more years of delay – meaning more asthma attacks, more disease, and more premature deaths.

The President and CEO of the American Boiler Manufacturers Association, in response to EPA’s recent re-proposal, stated “the American Boiler Manufacturers Association urges ‘no action’ on S. 1392 nor any additional action on H. R. 2250. Needless, arbitrary delay in resolution of these rules does not serve the best interests of either those who are being regulated or those who provide goods and services to those regulated. Delay means only additional uncertainty in the market place. Progress is being made through the regular order; we would urge you to let the rulemaking process go forward without Congressional intrusion.”

Torpedoing must-pass legislation with anti-environmental riders is no way to run the country, and deadly legislation aimed at delaying toxic air pollution standards for incinerators and industrial boilers has no place in tax or funding bills.

But these irresponsible and harmful pushes cannot become law in the face of firm opposition and leadership by Senators and the president. The Senate has fended off every attack on the Clean Air Act during the 112th Congress; the president has vowed to veto the harmful House bill gutting the mercury standards for incinerators and boilers; and the Obama administration is on the verge of announcing historic safeguards against mercury and other toxic air pollution from power plants that burn coal and oil.

Now when it matters most is the time for this leadership to be renewed; now is not the time to sacrifice the lives and health of so many Americans to dirty politics-as-usual in Washington.

Americans Deserve to Have Polluting Boilers and Incinerators Cleaned Up

2011-12-02T18:21:31Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

Today, the U.S. Environmental Protection Agency re-proposed [pdf] standards to reduce mercury, toxic metals, acid gases and other hazardous air pollution from industrial boilers and incinerators. These standards already are over a decade overdue, and EPA’s newly-revised standards achieve significant health benefits while lowering industry costs and maintaining flexibility.

Nearly 40 million Americans [pdf, page 10] live within three miles of at least one of these types of industrial facilities that emits uncontrolled or poorly controlled levels of toxic air pollution (like mercury, lead, and formaldehyde). Mercury is a dangerous neurotoxin that damages the developing brains of children and the unborn. Other toxic air pollutants emitted by these facilities cause cancer, birth defects, and contribute to asthma attacks, bronchitis and premature deaths. For years, these known emitters of neurotoxins and carcinogens have been poisoning nearby residential neighborhoods, schools and communities.

With today’s announcement, EPA’s proposed new standards will avoid every year [pdf]:

Up to 8,100 premature deaths (this is 1,600 more lives saved than the previous standards);
5,100 heart attacks;
Nearly 5,400 hospital and emergency room visits;
Almost 400,000 days of missed work; and
Over 50,000 cases of asthma attacks.

The proposed standards achieve these impressive and necessary health benefits overwhelmingly by targeting the dirtiest sliver of boilers in America, the 0.4 percent [pdf] of large industrial boilers that are located at refineries, chemical plants and other industrial facilities.

EPA projects that today’s reproposed standards for these large industrial boilers will reduce the following amounts of hazardous air pollutants every year [pdf]:

Up to 3,600 pounds of mercury;
2,200 tons per year (tpy) of non-mercury metals;
37,000 tpy of HCL;
41,200 tpy of particulate matter (PM);
560,000 tpy of SO2; and
4,700 tpy of smog-forming volatile organic compounds (VOCs).

The emission reductions are even greater when factoring in pollution cuts from smaller boilers and incinerators.

The proposed standards also are projected to lead to a net creation of new jobs while providing a return of $12 - $30 in benefits [pdf] to the Americans people for every $1 spent by industry to control this toxic pollution.

Today’s proposed standards are the product of EPA’s reconsideration of previous toxic air pollution standards for industrial boilers and incinerators that the agency first finalized [pdf] in March, 2011. EPA listened to industry concerns about the rule and has responded in today’s proposal by providing more flexibility and lower implementation costs. For example, of the 1.5 million industrial boilers in the nation, fewer than 1% are subject to emissions limits as a result of today’s proposal. An additional 13% of units can meet their obligations under the standards simply by undertaking annual tune-ups of their equipment. Additional flexibilities are accorded boilers that burn biomass.

Today’s announcement is not without concern, however. It is troubling that EPA actually is proposing to repeal emission limits for cancer-causing dioxins, and replace them with dubious “work practice standards” – the weakest and most ineffectual tool in the Clean Air Act. NRDC will continue to review the proposal and provide comments to the agency during the public comment period.

The proposal’s added flexibility, lower costs, and increased benefits should lead Congress to support these standards and the expeditious delivery of significant health improvements for the American people. Congress should abandon any legislation that would weaken the Clean Air Act or block or undermine these long-overdue lifesaving standards.

The president exercised strong leadership by threatening to veto [pdf] irresponsible House Republican legislation to block and eviscerate boiler-incinerator health safeguards. Now EPA has shown responsibility in listening to industry and political critics while continuing to enforce the Clean Air Act to protect Americans.

Overall, today’s announcement is a positive step towards cleaner communities and healthier families. Americans deserve the health benefits that will come from finally cleaning up these dirty boilers and incinerators.

Coats-Manchin Bill Sacrifices Americans' Health to Dirty Power

2011-11-11T15:19:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

Senators Dan Coats (R-IN) and Joe Manchin (D-WV) have introduced a bill called the Fair Compliance Act of 2011 that blocks and delays clean air safeguards against smog, soot, mercury and other toxic air pollution from power plants that burn coal and oil. These delays will mean up to 73,360 lives lost, at a minimum, compared to the lives saved by the Cross-State Air Pollution Rule and Mercury and Air Toxics Standards for power plants that the legislation targets.

Here is an analysis of the key features of this harmful and irresponsible bill.

Section 3 – Delays compliance with Mercury and Air Toxics Standards for power plants by at least 2 years, so that the compliance period is extended from 3 years to at least 5. However, this section sets the stage for indefinite delay since the bill requires that the EPA administrator shall provide an extension period "of not less than an additional 2 years" beyond the Clean Air Act's 3-year compliance period. (emphasis added). Because current law already allows a 1-year compliance extension if necessary for the installation of controls, the Coats-Manchin bill would turn a 4-year compliance period into the possibility of a minimum 6-year compliance period, with the bill allowing indefinite delay.

The Mercury and Air Toxics Standards are projected to save up to 17,000 lives every year [pdf], so the bill's minimum 2 years of delay would mean up to 34,000 additional lives lost, at a minimum, as a result of just section 3 of the legislation.

Section 4 – Delays compliance with the Cross-State Air Pollution Rule (CSAPR) [pdf], safeguards that significantly cut power plants' smog and soot pollution in the eastern half of the United States.

The legislation would stay the effectiveness of the already finalized CSAPR no later than thirty days after the date the bill becomes law. Then, no later than 6 months after the bill is enacted, the EPA administrator must undertake a new rulemaking to revise CSAPR to:

allow states to develop and submit state implementation plans (SIPs) to implement CSAPR. This likely would mean at least three additional years of delay, due to current statutory requirements and timelines governing SIP development and approvals, with additional rounds of notice and comment rulemaking at the state and federal levels.
extend compliance deadlines to require emissions reductions under a newly-revised CSAPR "not earlier than"

Phase 1: January 1, 2015 (as compared to the current CSAPR date of January 1, 2012). This is at least a 3-year extension of phase 1 compliance.

Phase 2: January 1, 2017 (as compared to the CSAPR date of January 1, 2014). This is at least a 3-year extension of phase 2 compliance.

This section effectively delays CSAPR by at least six years. The state implementation plan (SIP) development and submission process alone can take years. For most measures, the Clean Air Act gives states three years from the date a revised standard is adopted to suggest plans to EPA. See, e.g. Clean Air Act §110(a). These timelines are oftentimes delayed and extended in the real world. This would mean under the Coats-Manchin bill that states likely would take until at least the spring of 2015 to submit SIPs, which would have the effect of pushing back compliance deadlines even later than the Senators' press release erroneously advertises.

The actual legislative text means that the January 1, 2015 and January 1, 2017 dates above are entirely non-binding, unenforceable non-deadlines; the bill says that no emissions reductions may be required "earlier than" those dates, but pointedly fails to say emissions reductions could not be delayed until later than those dates.

For these reasons, the press release accompanying the bill's release engages in serious false advertising with the following claims: The Manchin-Coats bill would postpone Phase I until January 1, 2015 and Phase II of CSAPR until January 1, 2017. The compliance date is the date by which a utility either must have installed emissions controls or retired the pant (sic)." And as explained further below, the "must have installed emissions controls or retired" language is equally false, due to a fundamental loophole in section 5.

The current CSAPR, in contrast to the Coats-Manchin bill, anticipates the drawn out SIP process and employs a Federal Implementation Plan to streamline compliance, maintain the progress begun by the Bush administration's Clean Air Interstate Rule (CAIR), and respond more expeditiously to the D.C. Circuit's ruling that CAIR was unlawful. [pdf]

The adverse pollution and health impacts caused by section 4 of the legislation are startling and enormous. Even by leaving CAIR in place instead of CSAPR, the legislation would allow 1.5 million more tons of sulfur dioxide emissions in 2012 and 1.6 million more tons of sulfur dioxide emissions in 2014 than CSAPR would allow.

EPA estimates that CSAPR will save up to 34,000 lives every year [pdf] – primarily by reducing the deadly particluate matter associated with sulfur dioxide emissions. Assuming that the Coats-Manchin bill delays CSAPR by six years and the weaker CAIR remains in place, the bill’s delay would mean up to 6,560 premature deaths per year for every 1.5 million additional tons of sulfur dioxide emissions. This is based on blocking the health benefits from the greater emissions reductions that CSAPR achieves beyond CAIR. For the 6 year delay that the legislation imposes, this would mean more than 39,360 lives lost as a result of delaying implementation of CSAPR.

The economic costs of this delay have been estimated to be as high as $49.3 billion dollars in 2012 alone, with that cost incurred for each of the additional six years of delay. The total: nearly $300 billion dollars in additional costs that the Coats-Manchin bill would impose upon the American people in health care costs and avoidable health hazards.

Section 5 – This section strips EPA of the authority to protect public health and enforce the Clean Air Act, by handing over to the North American Electric Reliability Corporation (NERC), regional electric organizations and utility companies the legal right to unilaterally sanction utility companies’ noncompliance with the cross-state rule and mercury and air toxics standards.

The bill provides that power plant operators and NERC shall develop “implementation plans” to meet the requirements and delayed deadlines for the cross-state rule and mercury and air toxics standards. However, the bill then provides that power plant operators and NERC may make “any revision” to the schedules in these plans “that may be necessary to ensure the reliability and adequacy of the bulk electric system," as recommended by NERC.

This confers open-ended, unprecedented authority on these non-environmental entities to circumvent compliance with the Clean Air Act and public health protections in an unconstrained fashion. A final implementation plan could delay compliance or retirements by 2 or 5 or 10 years or, indeed, indefinitely. The final plans could waive compliance with toxic emission limits or authorize indefinite operation of completely uncontrolled power plants. The bill hands over to utility companies and these outside organizations total permission to circumvent these clean air safeguards.

All of this is accomplished without any requirement for public transparency, public comment or input, or public notice and comment rulemaking; indeed, utility companies, NERC and these local organizations are not government agencies or lawmaking bodies, yet they are given the authority to alter and ignore federal standards that themselves were the product of public notice and comment rulemaking by EPA. The bill renders those EPA public rulemakings and administrative law a sham.

Incredibly, the bill then provides that the Department of Energy, not EPA, “shall publish and submit to the [EPA] Administrator the final implementation plan," as agreed to by the power plant operators, NERC and regional organizations. The bill provides no role for EPA to ensure that the Clean Air Act is enforced and public health and air quality are protected by these implementation plans. EPA is merely given the negotiated implementation plans as a done deal and provided annual reports thereafter. Indeed, the bill does not even allow DOE to disagree for any reason with the plans settled on by the power plant operators and outside organizations, instead mandating that DOE “shall publish” such implementation plans.

Finally, adding insult to injury, at any time power plant owners are given the right to request permission to evade the agreed-upon schedule for cleaning up or retiring dirty power plant equipment. How so? Owners "may submit to the [EPA] Administrator and the [DOE] Secretary a request for a modification of the schedule contained in the implementation plan," and then . . . wait for it . . . a delayed scheduled will be reviewed and approved by . . . wait for it . . . NERC and the regional organizations given authority to approve and modify the plans originally!

EPA remains cut out of this process, with power plant owners, NERC and the regional organizations deciding how to evade the earlier Clean Air Act "compliance" schedules. The bill's provision that owners submit "requests" for those schedule delays to EPA and DOE ends up being nothing more than a cynical legislative sleight of hand with no legal meaning whatsoever.

In light of all this, the bill’s co-sponsors are seriously misrepresenting its consequences. A press release accompanying the legislation says “[t]his proposal does not reduce existing authority under the Clean Air Act, nor does it relax the standards under any existing or proposed Clean Air Act regulations.” Senator Manchin said this about his bill: "It's no delay at all." (subscription required). Those claims are demonstrably false.

There is no precedent under the Clean Air Act or any other environmental law, to our knowledge, in which federal law hands over to private corporations and organizations like NERC the ability and authority to circumvent federal safeguards without regard to public health, air quality, or the very purposes of that federal law. Nowhere in this bill must utility companies, NERC, the local organizations or even DOE give any weight to Americans’ health, air quality, ecosystems, national parks and wildlife, or any values protected by the Clean Air Act. EPA is cut out of the process altogether and stripped of authority to enforce the Clean Air Act.

The bill preserves no role even for courts to review or adjudicate the legality of these implementation plans or any revisions to them by the corporate-organizational collaborations, for the simple reason that such plans and modifications displace Clean Air Act schedules and the four corners of those plans become a self-contained law outside the influence of the courts or EPA. The legislation provides no role for judges because there is no law to judge, since lawmaking and compliance obligations have been handed over to the utility corporation-electric organization alliance.

The Coats-Manchin bill follows the same script as extreme air pollution legislation originating in the House, the TRAIN Act, with both bills sacrificing tens of thousands of American lives every year by further delaying long-overdue health safeguards against smog, soot, mercury and other toxic air pollution.

As publications such as Environmental & Energy Daily have quickly recognized (subscription required), the Coats-Manchin bill also institutes the compliance delays embodied in controversial legislation authored earlier this year by the American Electric Power Company, one of the nation's most polluting with dirty plants in Indiana, West Virginia and elsewhere. It comes as little surrprise, then, that AEP is feverishly lobbying for the bill since it gives a competitive advantage to the company's dirty fleet compared to other companies that have installed controls and/or are prepared to do so on time.

No legislation that sides so squarely with one of America's worst polluters over Americans' health and clean energy has any business becoming law.

Extreme Pollution Agenda in Senate Targets Life-Saving Smog & Soot Standards

2011-11-08T16:10:30Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

Last week the U.S. Senate rejected an extreme agenda disguised as a jobs and transportation bill. This unsuccessful effort was founded on the absurd notion that more pollution would mean more jobs and that what the country really needs is more of the Congressional paralysis and obstructionism that already wearies and disgusts Americans.

This week, the Senate will vote again on repealing life-saving pollution standards—this time a Tea-Party backed attack on the Cross-State Air Pollution Rule that keeps out-of-state smog and soot pollution from fouling the air of neighboring communities. Once again, the dirty air champions are going to talk about jobs, but the public already knows what the Senate affirmed last week—dirty air and dirty water are not a jobs plan.

Last week's failed legislation was Senator Orrin Hatch’s (R-UT) Long-Term Surface Extension Act of 2011—a witch’s brew of Tea Party House Republican bromides about job creation that in reality were just poisonous attempts to:

kill health safeguards against mercury and toxic pollution from cement plants, incinerators and industrial boilers;
quietly pass Senator Rand Paul's (R-KY) truly radical REINS Act [pdf], which would allow just one chamber of Congress to block law enforcement of existing statutory safeguards, from clean air and clean water protections to food safety standards to Wall Street reform; and
just as quietly pass the insidious Regulatory Time-Out Act of 2011, which would indiscriminately and nonsensically block the most significant health and environmental safeguards, financial responsibility reforms and the like for one year, notwithstanding how much damage and destruction to the American people or economy would result from blocking those safeguards.

This week, Senator Paul plans more of the same, with a resolution under the Congressional Review Act to void EPA’s Cross-State Air Pollution Rule. These standards will clean up dangerous smog and soot pollution from the oldest, dirtiest coal-burning power plants in the eastern half of the United States, saving lives and creating jobs by cleaning up pollution.

EPA has projected that these clean air standards will prevent every year [pdf]:

up to 34,000 premature deaths;
15,000 nonfatal heart attacks;
400,000 cases of asthma attacks; and
1.8 million days when people miss work or school.

Moreover, these health safeguards will deliver up to $280 billion in annual benefits to the American people compared to $2.4 billion in compliance costs to polluting coal-burning power plants, yielding benefits that outweigh costs by an astonishing 116 to 1. Many politicians and industry lobbyists claim to support benefit-cost analysis; how much would health benefits to Americans have to outweigh polluter compliance costs before Senator Paul and his resolution's co-sponsors would support clean air safeguards? 200 to 1? 500 to 1?

Further proof for this extreme agenda is shown by the zealous irresponsibility of Senator Paul's chosen weapon, a Congressional Review Act vote that repeals not only the Cross-State Air Pollution Rule but also prohibits EPA from adopting “substantially similar” health protections.

The Congressional Review Act is a nuclear bomb with radioactive spillover consequences: it voids not just the targeted safeguards, like CSAPR, but also prohibits EPA from adopting similar protections, such as a substitute for the Bush administration's 2005 Clean Air Interstate Rule. A federal court overturned [pdf] this rule in 2008. CSAPR responds to the court order to reduce smog and soot pollution from power plants in a more protective manner that complies with the Clean Air Act.

If a Congressional Review Act vote abolished CSAPR and blocked EPA from re-issuing a similar rule, this would make it extremely unlikely that EPA even could re-issue clean air standards achieving the same emissions reductions as the weaker Clean Air Interstate Rule; the two rules are substantially similar in numerous respects, including the problems they target, the states, polluters and pollutants covered, the rules’ underlying modeling and rationale, the legal authority and regulatory structure etc. The result would be millions more tons of smog and soot pollution from dirty power plants.

All of this explains why Senator Paul’s extreme pollution agenda already is attracting bipartisan opposition from more moderate and responsible members, with five or more Republican Senators expected to oppose the CRA resolution.

The White House's Heather Zichal, Deputy Assistant to the President for Energy and Climate Change, has authored an eloquent and ringing endorsement of the cross-state rule. One hopes this important backing represents the prelude to a White House Statement of Administration Policy recommending a presidential veto of Paul's resolution, adding to the laudable record of SAPs opposing House dirty air attacks this year.

The greater question remains, however, when Congressional obstructionists finally will abandon their stalling and ideological pollution plans in favor of getting down to the business of moving the country forward to a healthy and clean energy future.

"Congressional Hecklers' Veto Act" Subverts Law Enforcement

2011-10-28T13:26:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

In the law there is a concept called a "heckler's veto" to describe the ability -- but not the right -- of a person to be loud and obnoxious enough to drown out the free speech of others.

This week House Republicans on the Judiciary Committee passed the legislative equivalent of a Congressional Hecklers' Veto Act.

On a straight party line vote, the Committee's Republican majority passed H.R. 10, Regulations from the Executive in Need of Scrutiny Act of 2011, or the REINS Act.

This legislation would grant just one chamber in Congress, either the House or Senate, the ability and legal right to exercise a heckler's veto against enforcement of laws of the United States. Extremists in either political party could lead just one chamber to refuse to allow existing laws to be enforced out of ideological disdain for those laws, favoritism of corporate interests over Americans, obstructionism, corruption or inaction.

How can this be, you say? I thought laws could be adopted or changed only if approved by majorities in the House and Senate, followed by presidential signature. Once such laws are properly enacted, the executive branch must enforce the laws unless overturned by the judicial branch, right? Isn't that what Articles I, II and III of the Constitution and separation of powers are all about?

True, today. Once laws are adopted in this manner, federal agencies like the Food and Drug Administration or Environmental Protection Agency carry out and enforce those laws pursuant to congressional instructions. But not if the REINS Act were adopted and threw that constituional process in the dustbin of two centuries of American history.

It's surprising that the REINS Act has not gotten more public attention, or raised more alarm over the federal government becoming even more partisan, gridlocked, corrupt and just plain broken.

Extremists in the House of Representatives today, for example, cannot readily block enforcement or change laws of the United States, due to more responsible refusals by the Senate and the spectre of a presidential veto.

So House Republicans in droves are resorting to legislation that would bypass those democratic checks and balances. The REINS Act grants extremists in the House (or Senate) -- again, in either political party -- the ability to block enfocement of laws and thereby change those laws as a practical matter just by becoming Congressional hecklers who stomp their feet and refuse to allow laws passed by earlier congresses to be carried out.

For example, the House could be dominated by a faction sincerely opposed to health and safety standards out of passionate ideological beliefs that are outlier views among the broader American public -- even as those views curry favor among corporate interests that donate heavily to that faction. This hypothetical Congress could even have abysmal approval ratings by the American people hovering around, say, 9%.

Suppose one session of Congress passes legislation banning melamine in powdered infant formula and the president signs the legislation into law. The Food and Drug Administration undertakes a rulemaking to enforce the newly enacted law by issuing the detailed regulations that ban melamine in powdered infant formula, creating a period for phase-out by formula manufacturers, an inspection regime etc.

Then in the very next session of Congress a few months later, the positions of enough members in the newly seated House change to produce a majority that favors reversing the ban. This could be because members changed their minds, or an election caused the House to switch to a different political party. This reversal even could result because some original nominal supporters of the melamine ban voted for the law for political gain, but never truly supported it and would welcome the opportunity to quietly kill the ban.

Today, reversal of House support for the melamine ban could not amend or scrap the law -- due to continuing Senate and White House support for the ban.

The REINS Act would change all that. The REINS Act would create the radical situation in which just House opposition to the ban now could unilaterally block the FDA rules that carry out and enforce the congressional melamine ban.

That is the purpose of the REINS Act. For its supporters, that is the REINS Act's selling point: stopping a rogue agency, here the FDA.

But just who is the rogue entity here? Surely it is the new House majority, that now wishes to use the REINS Act to subvert law enforcement of the melamine ban, because that House majority lacks the political support and votes to reverse the ban through traditional democratic means. This is why the REINS Act would be such a radical departure from American democracy.

REINS Act supporters are disingenuosly trying to cast federal agencies as the villains in this political passion play, when those agencies are carrying out and enforcing laws of the land adopted by Congress and signed by the president. It is the REINS Act supporters, by contrast, that wish to subvert enforcement of federal laws without mustering the political support to change those laws in the House and Senate and persuade the president to sign the legislation.

Congress already has the power to review federal agency regulations, and to change or block those regulations with majority votes in the House and Senate and presidential signature. (One law conferring that power is called the Congressional Review Act. But the inherent legislative authority of Congress also allows them to legislate essentially any matter not prohibited by the constitution.) That is the constitutional process for passing or changing laws.

The law also has a technical term hailing from the English common law to characterize arguments that may persuade one chamber of a bicameral legislative body (like Congress), but fail to persuade the other chamber or the president. Those arguments are called "losers."

The REINS Act would turn losers into kings of the Hill, hecklers into autocrats with the power to veto enforcement of duly enacted laws of the United States.

Earlier this week, I testified before another House subcommittee in opposition to a terribly drafted bill, H.R. 1633 [pdf], the Farm Dust Regulation Prevention Act of 2011, that engages in excessive congressional delegations of overbroad and vague authorities to EPA, with the objective of deregulating industrial soot pollution from the Clean Air Act.

I observed that the Judiciary Committee was simultaneously considering the REINS Act, purportedly to deal with this very same transgression of excessive delegations by Congress to federal agencies. H.R. 1633 embodies that transgression. Yet many House G.O.P. co-sponsors of the REINS Act also are co-sponsoring H.R. 1633.

Don't be fooled for one moment into thinking that the REINS Act will do anything about these overbroad, vague delegations. Or that this is even what the REINS Act really is about.

No, what the REINS Act really means to do is hand over to hecklers, ideologues and extremists the unilateral ability to block enforcement of federal laws they wish had never been adopted -- but that they don't have the votes to change.

There should be a legal term for that too: coup d'extremists.

Bill Targeting EPA "Farm Dust" Myth Kills Clean Air Act Safeguards Against Industrial Soot Pollution

2011-10-27T17:33:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

This week I testified before the House Energy & Power Subcommittee in opposition to H.R. 1633, the Farm Dust Regulation Prevention Act of 2011. In this post, I set forth my oral statement to the subcommittee, supplemented by some additional passages for context. My full written testimony is available here [pdf].

* * * * *

The Farm Dust Regulation Prevention Act of 2011, H.R. 1633, is premised on a problem that does not exist – nonexistent EPA limits on farm dust. The devilish details of this poorly crafted bill, however, actually create more real problems than the imaginary problem the bill purports to solve. The bill is sweepingly overbroad, creating numerous damaging consequences that appear to be unintended but that would cause real harms to Americans.

The result would be increases in harmful soot pollution – not just coarse particulate matter (PM10) but deadly fine particulate matter (PM2.5) – across the country. And not just in rural America but urban and metropolitan areas too.

The legislation inexplicably eliminates, weakens or blocks federal Clean Air Act authority over overwhelmingly industrial soot pollution from power plants, manufacturing facilities, mines, other industrial facilities and even the nation's fleet of motor vehicles – all as a result of very overbroad and poor drafting.

Before you consider voting for a bill under the misconception that you are just addressing so-called "farm dust," I urge your staff to examine closely the testimony [pdf] by EPA Assistant Administrator Gina McCarthy and my own written testimony [pdf] to see whether you find fault there with any of the legal analysis or factual conclusions concerning the legislation. I will note that none of the other witnesses here today have contradicted those interpretations in their written testimony or opening statements.

Finally, I urge your attention to a careful reading of the written testimony of most of the majority witnesses as well Representative Kristi Noem’s statements [pdf] on the opening panel: each time any of that testimony complained of existing regulation of farm dust, they were complaining about state regulation, e.g., in Arizona or Illinois, not federal EPA regulation. Isn’t it paradoxical then that this bill, H.R. 1633, does not eliminate state regulation or monitoring of farm dust? I make this point not to suggest that Congress should trample on state decisions about how best to protect their citizens by reducing pollution; rather this point reveals the fundamental internal inconsistency and hypocrisy underlying H.R. 1633.

Some have criticized the merely “temporary” relief from (nonexistent and speculative) EPA regulation of farm dust provided by EPA Administrator Lisa Jackson’s recent commitment not to revise the existing PM10 standard or in any way regulate so-called farm dust. Yet H.R. 1633 provides only a 1-year delay to any future revision of the PM10 standard, whereas Administrator Jackson’s pledge would ensure no change to the PM10 standard for at least 5 years. Equally paradoxical.

Coarse particle pollution – also known as “soot” or by its legal term PM10 – is a mixture of materials such as metals, organics, smoke and acids. The particles are called “PM10” because they are microscopic particles that measure between 2.5 and 10 microns in diameter – so at their largest, these particles are still approximately seven times smaller than the diameter of one human hair.

In the last review of these PM10 standards in 2006, the Bush administration EPA found that major manmade sources of coarse particle pollution include coal and oil combustion sources, mining processes, other industrial processes, and construction activities. As a result, coarse particle pollution can contain fly ash, diesel soot, asbestos fibers, aluminum, and tire and brake material from vehicles. Particles at the lower end of the PM10 range are particularly dangerous because they can infiltrate the airways and lungs and get past the body’s natural defensive systems – leading to health problems including asthma attacks, cardiovascular and respiratory problems, and even premature death.

EPA has set health-based standards for particle pollution since 1971, and specifically for PM10 since 1987. The Clean Air Act requires EPA to review coarse particle standards and the science behind them every five years. The agency has not tightened health-based national standards for PM10 since 1987.

On October 14, 2011, EPA Administrator Lisa Jackson announced that she plans to maintain current coarse particle standards (set in 1987) without any change – meaning that current standards would stay the same for at least five years. To my knowledge, no one falsely accused the Reagan administration of regulating "farm dust" for setting PM10 standards at the exact same level that the Obama administration EPA has said it will maintain those standards.

For the past 41 years, EPA has set health-based national standards for coarse particle pollution based on science and medicine at a level necessary to protect public health with an adequate margin of safety. EPA’s health-based standards are the first step. The second step involves states primarily, but also EPA through some national standards, deciding which sources of coarse particle pollution to control in particular states.

In its 41-year history, federal control measures adopted by EPA have never covered farm dust. To be clear: there are no EPA farm dust regulations; there are no such proposed regulations; there are no EPA intentions for such regulations; EPA Administrator Lisa Jackson has specifically disavowed such intentions in Congressional testimony when asked directly by Congress; and the Administrator just last week announced that she would propose no change to the PM10 standards pursuant to the mandatory statutory review that had prompted the baseless hysteria over so-called “farm dust.”

Despite these facts, H.R. 1633 has been presented under the legislative guise of blocking nonexistent and unplanned EPA regulation of so-called “farm dust.” I invite any member or witness to identify an EPA regulation in the Code of Federal Regulations where EPA imposes limits on farm dust. There is none.

Since several members have invoked the specter of environmental groups suing EPA to force federal regulation of farm dust, I invite any member or witness to identify any statutory authority to compel EPA to impose federal limits on farm dust. There is no such authority.

Finally, I invite any member to identify any job in American that has been lost due to EPA limits on farm dust. There is none.

If Congress truly wanted to address farm dust, all it would take is a simple sentence that says “EPA shall not impose limits on farm dust if states are doing so already.” Some members would like to suggest that this is all H.R. 1633 does, but that is plainly and profoundly wrong. The bill does far more and far worse than that.

Here’s what the legislation actually does:

it fundamentally rewrites and weakens the Clean Air Act to interfere with EPA’s study of the science of coarse particle pollution;
it introduces a vague and expansive definition of “nuisance dust” that would exempt much dangerous PM10 and PM2.5 industrial pollution across the United States from Clean Air Act regulation; and
it makes it more difficult for states to meet health-based air quality standards to protect their citizens against PM10 and PM2.5 pollution.

Here is a quick section-by-section analysis of the legislation.

Section 1 is the only part of the bill that mentions “farm dust”– and this unenforceable section only lists the bill’s title.

Section 2 of the bill prevents EPA from even conducting the process to study or update health standards for soot pollution – despite the fact that EPA Administrator Lisa Jackson has announced that EPA will not change the standards for coarse particle pollution during this 5-year review cycle.

Further, as a result of what appears to be the unintended consequences of vague drafting – the bill could be read to prevent implementation and enforcement of past revisions to the PM10 standards. This includes the most recent revisions to those standards in 2006, by the Bush administration, which revised soot standards to eliminate annual standards for coarse particle pollution.

These potential rollbacks, along with EPA’s announcement that it will propose to maintain current standards should dissuade members of Congress from voting for this bill. If it does not, the broad and undefined language in Section 3 surely should.

Section 3 fundamentally rewrites and weakens the Clean Air Act by introducing sweeping, vague and undefined terms that strip EPA of federal Clean Act authority over particulate matter pollution, PM10 and PM2.5, across the country. This section relies upon broad and vague terms like “nuisance dust,” “natural materials,” “windblown dust” and “rural areas” that in combination would exempt from Clean Air Act regulation both PM10 and PM2.5 industrial pollution from sources such as power plants, mining operations, diesel vehicles, and other industrial activities that have nothing to do with farms. The scope of these terms is potentially so expansive that the “exemptions” of section 3 could entirely swallow EPA’s ability to set or enforce health-based standards for particulate matter of any size.

These exemptions for particulate matter of all sizes would require EPA to pretend that much of the soot pollution registered by monitors daily does not exist as a matter of federal law. Accordingly, since pollution from exempted sources of “nuisance dust” would be treated as if it didn’t exist, it would be even more difficult, if not impossible, for states with industries whose emissions constitute “nuisance dust” to ever meet federal health-based standards under the Clean Air Act.

This bill proves the wisdom of two legal axioms: bad facts make bad laws, and poorly drafted laws produce unintended consequences. There are no EPA farm dust regulations – planned, proposed or actual – so it should come as little surprise that a law aimed at eliminating a nonexistent problem should be such a badly designed bill: sweepingly over-inclusive, creating unintended consequences, causing more problems than it solves, and increasing harmful air pollution and health hazards for the American people.

Elsewhere in the House this week, the Judiciary Committee is considering the even more misconceived “REINS Act” [pdf], which purports to address and rein in excessive delegations of congressional authority to federal agencies. (My colleague, David Goldston, and I have criticized the REINS Act here, here and here.) And yet – the Energy and Commerce Committee is considering a bill, H.R. 1633, that engages in excessive delegation of sweeping and vague authorities to deregulate industrial pollution across America from the Clean Air Act. Equally paradoxical.

There are real problems that Americans desperately need Congress to address rather than imaginary problems through a badly drafted and deeply harmful bill like H.R. 1633.

Misleading Legislation Uses Nonexistent EPA "Farm Dust" Regulations as Cover to Block Health Safeguards for Industrial Pollution

2011-10-14T17:58:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

Under the fundamentally misleading title of the “Farm Dust Regulation Prevention Act of 2011,” identical bills have been introduced in both the House [pdf] and Senate [pdf] to block the Environmental Protection Agency from updating health standards for coarse particle or soot pollution, under the legislative guise of blocking nonexistent and unplanned EPA regulation of so-called “farm dust.”

These anti-science bills would deny Americans the right to know if the air is safe to breathe by blocking a scientific and health review of soot standards—before review has even begun. Worse, these bills would force EPA to ignore harmful soot pollution emitted overwhelmingly by industrial polluters like coal-burning power plants, incinerators, chemical plants, and oil refineries, along with diesel vehicles. Not farms, which the bills use as cynical cover for abolishing review of health standards for industrial pollution.

Let’s be clear. There are no EPA farm dust regulations. There are no such proposed regulations. There are no EPA intentions for such regulations. EPA Administrator Lisa Jackson has specifically disavowed such intentions in Congressional testimony when quizzed by suspicious Congressmen.

The only suggestion of EPA regulating farm dust is in the misleading title of these fundamentally flawed and irresponsible bills. Irresponsible because the bills shut down the scientific process of reviewing medical evidence to identify levels of coarse particle pollution levels that are harmful to human health.

Flawed and misleading because that coarse particle pollution comes overwhelmingly from industrial polluters, not farmers. Who says so? The Bush administration in 2006, when EPA last reviewed the protectiveness of health standards for coarse particle pollution.

In its 2006 review of the science on soot pollution (the very type of study that these bills would block), the Bush Administration found [pdf] that the following activities are the major sources of this type of soot pollution (table 2-2):

Fly ash from coal combustion;
Industrial processes;
Tire and paving materials from roads;
Mining and mineral processes; and
Construction and demolition activities.

Where were the bills then targeting (nonexistent) EPA regulations under a Republican administration for (not) regulating farm dust? That’s the identical situation today under a Democratic administration, yet the response has been Congressional hysteria and a central plank in Representative Eric Cantor’s Pollution Plan. Where were similar bills during the past 4 decades in which EPA dutifully has set coarse particle pollution standards as the Clean Air Act requires, without once imposing or suggesting federal limits on “farm dust”?

In the forty-plus years since the bi-partisan Clean Air Act was adopted, Congress never has stepped in to shut down the scientific review process telling Americans how much air pollution is harmful to our health. Congress never has even contemplated shutting down that process over an urban myth rooted in misunderstanding, at best, and mistrust and ulterior motives, at worst.

What do these bills do? These bills attack clean air standards for soot pollution that EPA has not even proposed, much less adopted. The legislation would prohibit EPA from reviewing air quality standards for so-called “coarse particle pollution” or PM10, often known as soot. (The particles are called “PM10” because they are microscopic particles that measure between 2.5 and 10 microns in diameter – no more than seven times smaller than the diameter of one human hair.) The bills prevent EPA even from examining new science or proposing new standards for soot pollution. Even if EPA and independent scientists found that current levels of soot pollution from any and all polluters were dangerous to our health or our children’s health, the dirty soot bills would prevent the agency from setting standards to protect Americans. In doing so, the legislation would expose our families to the dangerous health impacts from this pollution.

Revealingly, the governing legal prohibition in the bills does not even mention agricultural operations or farm dust, stating:

[EPA] may not propose, finalize, implement, or enforce any regulation revising the national primary ambient air quality standard or the national secondary ambient air quality standard applicable to particulate matter with an aerodynamic diameter greater than 2.5 micrometers under section 109 of the Clean Air Act.

This language plainly blocks proposal, finalization, implementation, or enforcement of any updated health standards for soot pollution regardless of whether that pollution comes from power plants or incinerators or oil refineries or chemical plants.

Calling this legislation the “Farm Dust Regulation Prevention Act of 2011” is like characterizing legislation to block health-based standards for smog pollution as the “Boy Scout Bonfire Regulation Prevention Act of 2011,” when EPA does not and will not limit smog-forming pollution from Boy Scouts bonfires. When the process of merely identifying unhealthy levels of smog pollution does not impose limits on any entity. And when the biggest emitters of smog-forming pollution are coal-burning power plants, oil refineries and other large industrial polluters – corporate entities that the bill would shield from cleaning up pollution that is hazardous.

But casting a bill that blocks health standards for soot pollution from power plants and oil refineries as salvation for "farm dust" is worse than calculated misrepresentation. Worse because the stratagem co-opts and scares farmers with a leading falsehood, while letting the biggest polluters responsible for the soot pollution hide behind that falsehood, cackling over their windfall from cynical Washington politics.

What is soot pollution and its health consequences? Soot – also known as coarse particulate pollution or PM10 – can trigger asthma attacks, heart attacks, strokes, and even death. Soot pollution is a mixture of materials such as metals, organics, smoke and acids. The mixture is often embedded with toxic substances and infiltrates the airways and lungs, often penetrating past the body’s natural defensive systems. Soot pollution of this size is emitted by a variety of pollution sources, including power plants, oil refineries and diesel engines. When inhaled, these particles can cause serious health problems, including [pdf]:

Hospital admissions for heart disease;
Increased hospital admissions and doctors’ visits for respiratory disease;
Increased respiratory symptoms in children;
Decreased lung function; and
Even premature death in people with heart or lung disease.

What does the Clean Air Act require to protect Americans from soot pollution? Under the Clean Air Act, protecting Americans against harmful air pollution like smog and soot involves a two stage process. The first stage requires EPA to identify levels of air pollution that are unhealthy for humans, based upon the best medical and scientific evidence. EPA then establishes permissible concentrations of that pollution in the air that are necessary to protect public health with an adequate margin of safety.

The second stage involves EPA and states identifying the sources of that pollution that are appropriate to control, based upon considerations such as the magnitude of those industries' contributions to the problem, the cost-effectiveness of controls, and the availability and technological feasibility of controls. Only at this second stage are specific polluters identified for control by states and EPA. Even then, federal control measures adopted by EPA cover large and ubiquitous sources of industrial pollution, and have never covered “farm dust.”

The House and Senate soot bills prohibit EPA from conducting this first stage – the health standard-setting process. The bills bar EPA from identifying – and telling Americans – how much soot pollution in the air is unhealthy. In other words, these amendments bar EPA from telling the truth to Americans about the safety of the air we breathe, instead forcing the government to lie to us.

EPA does not require pollution reductions from any specific sources or sectors pursuant to this standard-setting process. Precisely for this reason, the claim that EPA is attempting to set standards for “farm dust” is profoundly wrong.

It is the health standard-setting process that EPA Assistant Administrator for Air, Gina McCarthy, described in an April letter responding to Senator Mike Johanns (R-N.E.). McCarthy noted that clean air standards “are set to protect public health from outdoor air pollution and are not focused on any specific category of sources or any particular activity (including activities related to agriculture or rural roads).”

Anyone familiar with the Clean Air Act would read into that unremarkable response nothing more than a summary explanation of the Act’s health standard-setting process, which deals exclusively with levels of air pollution that are harmful to Americans, regardless of their source. McCarthy was simply describing the way the law has worked for over forty years and the way it is required to work.

Senator Johanns, on the other hand, reacted to McCarthy’s response with paranoia and mistrust, reading into McCarthy's matter-of-fact description of the stage 1 standard-setting process a hidden, unspoken EPA agenda to use the stage 2 control measure process to regulate farm dust.

Subsequently, Johanns introduced the irresponsible bill [pdf] to block EPA from setting health standards protecting Americans against industrial soot pollution. Following an interview with Senator Johanns, Politico reported that he said the quoted passage from McCarthy’s letter left “ambiguous whether EPA particulate matter controls would include dust on farms”:

“I think they are playing this both ways and we want certainty,” Johanns said. “So it’s not that I don’t believe them, it’s very simply they don’t have their act together.”

The Senator is just wrong. He does not understand the way the law works and has worked for over forty years.

For whatever reason, Johanns is so ready to believe that EPA officials “don’t have their act together” that he ignores the most obvious, accurate explanation: EPA is not being cagey, but correctly describing how the law has always required the agency to set clean air standards – based on the best medical and scientific evidence indicating what standards are necessary to protect public health with an adequate margin of safety.

This means that soot pollution health standards will not regulate “farm dust” nor impose any restrictions on farms. When it comes to the law’s second stage, when control measures for particular pollution sources are identified, EPA never has adopted pollution control obligations for “farm dust.” Finally, in response to distrustful and paranoid inquiries from Congress, EPA Administrator Lisa Jackson has expressly said EPA has no intention of imposing limits on “farm dust.” (subscription required)

The Clean Air Act already excludes air pollution caused by natural events. The Act already excludes from compliance with clean air standards so-called “exceptional events” that are caused by natural events that affect air quality and are not reasonably controllable or preventable. Natural events include things like high winds, wildfires, dust storms, volcanoes and natural disasters. Air pollution caused or exacerbated by these qualifying activities already is exempt from compliance with health-based clean air standards for soot pollution. In fact, EPA has specifically identified “emissions from mining and agricultural activities” [pdf] as the types of things that could constitute “exceptional events” and that would be specifically exempted when determining if states attain air quality standards. Special statutory treatment of “exceptional events” thus ensures that air pollution exacerbated by natural events such as dust storms or high winds is not considered when assessing compliance with national health standards for soot pollution or other pollutants.

Where is EPA in the soot standard-setting process? EPA has not even proposed, much less finalized, new standards to replace the current soot standards. The agency is currently studying the science behind the soot standards with the assistance of EPA’s independent expert science advisors, as required by the Clean Air Act. The congressional soot bills would shut down this scientific process — but just during the remainder of the Obama administration, another patent indication of the bills' politicized motivations. After comprehensively reviewing the relevant science and medical literature, the law requires EPA to issue a proposal, even if it proposes to keep soot standards exactly the same.

EPA has set standards for soot pollution since 1971. EPA last re-examined standards for coarse and fine soot pollution in 2006, at which time the agency decided to keep the coarse particle standards at the same level as they were set in 1997. Preliminary documents [pdf] from EPA’s current review note that the agency thinks it would be appropriate to retain existing coarse particle standards at the current level. (e.g., ES-2)

So what caused the “farm dust” myth? In an April policy assessment reviewing the PM10 soot pollution standards, EPA staff scientists and the agency’s outside science advisors “consider[ed] the potential appropriateness” of changing the form of the current PM10 standard from a 99th percentile form to a 98th percentile form. [pdf, 3-32]. The assessment document explained this would make the standard “more reflective of the health risks posed by elevated pollutant concentrations,” i.e., “spikes,” and make the PM10 standard consistent with the 98th percentile form of the 1997 PM2.5 standard. [pdf, 3-32]

Additionally, the assessment suggested a possible change in the level of the standard to between 65-85 µg/m3. The document said [pdf] such a change either would be “generally equivalent” to the current standard (at 75-80), slight less protective (at 85), or slightly more protective (65-75), depending upon whether EPA Administrator Jackson even decided to propose changes at a later date. Moreover, the assessment did not recommend any particular standard or form for the Administrator's adoption.

As noted, EPA and external scientists believed that the discussed changes would make a revised standard essentially equivalent to the current coarse particle standards. Lobbyists for various trade association, such as the National Beef Cattlemen’s Association, disagreed — but openly acknowledged EPA scientists’ belief that a potential revised standard would be “essentially ‘equivalent for health protection” compared to the current standard.

This created an honest difference of opinion over whether the mere suggestion of a combined change in the level and form of the PM10 standard would or would not affect the standard's stringency.

Who is right? I don't know. And let's be real: neither does Congress. There were no hearings before these bills were introduced. And ask yourself whether the congressional offices that are co-sponsoring these bills really even understand these issues: do these offices know which competing view is correct about the consequence of a combined change in the level of the PM10 standards by 65-85 µg/m3, in conjunction with a format shift from the 99th percentile to the 98th percentile?

The worst that can be said of EPA staff and the agency’s science advisors is that they were terribly naïve about the hysterical lobbying and political maelstrom that would result from just discussing these possible changes.

Cutting through the hysteria and disinformation, what matters is that EPA Administrator Jackson has not purported to resolve this difference of opinion one way or the other. There has not been so much as an EPA proposal to alter the current coarse particle standard. And yet dozens of Congressmen and Senators just know that EPA is trying to regulate farm dust, and they want to shut down a scientific process to inform Americans what amount of soot pollution is unhealthy.

This obscure difference of opinion is the genesis of the farm dust urban myth.

This disagreement over minutiae so obscure that it makes even my expert eyes glaze over, this is what industry lobbyists transmogrified into the specter of a black helicopter-led plot by the federal government swooping onto the fields of helpless farmers to limit “farm dust.”

During my nearly twenty years as a Clean Air Act attorney, I have never seen a more cynical, fraudulent misrepresentation of the facts and law to back an industry lobbying campaign that yielded equally disingenuous Congressional legislation.

Tobacco lobbyists and pathological liars should tip their hats out of professional regard for this masterful industry lobbying campaign. A campaign that turned the preliminary discussions by an unknown advisory body about obscurities concerning primarily industrial soot pollution – into fact-free hysteria over farm dust regulation. Which then produced legislation co-sponsored by multiple members of the United States Congress to block a scientific process to set health standards protecting all Americans from industrial pollution.

These bills could be a poster child for Americans' exasperation with Congress: rather than solving real problems for Americans, the legislation targets nonexistent regulations that do not address a nonexistent problem and that are based on nonexistent intentions.

But the bills cause very real damage, since the legislation would block a forty-plus year Clean Air Act obligation to identify clean air standards necessary to protect Americans' health with an adequate margin of safety. The bills would deny Americans their right to know something as basic as whether the air is safe to breathe. The bills would allow dangerous industrial pollution from the nation's biggest polluters to hide behind a deceptive industry lobbying campaign to scare farmers and ranchers with an urban myth about an EPA bogeyman.

The example of these soot pollution bills, more than any in the 112th Congress, shows the extent to which some in Congress appear willing to ignore science, misrepresents facts and the law, and harm public health – all in order to carry out the wishes of corporate lobbyists.

Ridiculous urban myths that once were limited to paranoid corners of the Internet or the rantings of Glenn Beck now are being introduced as congressional legislation. My colleague Jon Devine, for example, has written about another urban myth involving an Internet conspiracy that EPA was about to regulate spilled milk the same way they do oil spills.

Some members of Congress, like Senator Tim Johnson (D-S.D.) have the courage and integrity to call these soot bills what they are, “ridiculous and an attempt to scare farmers.” But too many members are seduced or cowed by the legislation’s title and misunderstanding, at best. At worst, some members may be looking for yet another club to bludgeon EPA, a partisan cudgel to force more principled representatives to take hard but honest votes, or cynical cover to deregulate the biggest industrial polluters.

What has become of our Congress if multiple members will introduce legislation based upon such gross falsehoods propagated by calculating industry lobbyists? If senators and representatives will deny all Americans the protectiveness, the honesty, of a common good as basic as clean air by co-opting the all-American image of the hard-working farmer to allow oil refineries and incinerators and hazardous chemical facilities to pump more toxic pollution into American communities?

The coming weeks may provide an answer to these questions. The just-introduced Republican jobs package includes Senator Johanns’ “Farm Dust Regulation Prevention Act of 2011” (subscription req’d) – because blocking nonexistent EPA regulations will produce jobs?

Johanns has vowed to attach his bill as an amendment to any legislative vehicle he can, including legislation that Congress must adopt to fund the entire federal government for the remainder of fiscal year 2012. House Republicans have scheduled a legislative hearing later this month to push the “Farm Dust Regulation Prevention Act of 2011” through the House, continuing their march through the dirty agenda in the Cantor Pollution Plan.

These efforts reflect a concerted determination to weaken the Clean Air Act and force Americans to live with less protective clean air standards against industrial pollution.

All in service of a dirty air legislative deception.

House Bills Repeal, Gut Safeguards Against Mercury & Toxic Air Pollution From Cement Plants, Incinerators, Boilers; Would Allow More Premature Deaths, Asthma Attacks

2011-09-30T12:34:57Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

The week of October 2nd, two bills aimed at blocking critical health protections against mercury and other toxic air pollution from incinerators and boilers (H.R. 2250) [pdf] and cement plants (H.R. 2681) [pdf] are expected to be brought up for a House floor vote. These bills continue the deadly trend of the Cantor Pollution Plan – rolling back clean air safeguards and putting millions of American lives at risk.

Last week saw adoption of the most extreme attack on the Clean Air Act ever to pass the House, legislation called the TRAIN Act (H.R. 2401). This Act repeals and blocks smog, soot, mercury and air toxics standards for power plants that would save over 130,000 lives and avoid over 1 million asthma attacks.

Like the TRAIN Act does with power plants, H.R. 2250 and H.R. 2681 nullify existing clean air standards for cement plants, incinerators and industrial boilers that collectively number in the thousands emitting mercury, arsenic, lead and cancer-causing toxins into our communities. Then these two bills allow the indefinite delay of compliance with these toxic air pollution standards, providing no guarantee of reductions even within a decade. Both bills forbid EPA from issuing final standards for these facilities for 15 months and also eliminate any deadlines by which industrial polluters must meet final standards once they are issued.

Even more irresponsibly, these bills severely weaken the Clean Air Act and overturn multiple federal court decisions to gut strong toxic air pollution standards that under current law must be applied to achieve deep cuts in dangerous mercury, lead, dioxins and acid gases from these facilities. See pages 10-13 and 16-17 of my Congressional testimony opposing the 2 bills here [pdf].

EPA Administrator Lisa Jackson has testified that weakening changes to the Clean Air Act included in the TRAIN Act – changes that are essentially identical to provisions in the cement, incinerator, and boiler bills -- “weaken and possibly destroy our ability to ever address those toxins, toxic pollutants” like “mercury and arsenic and lead and hydrochloric acid.” [Video testimony, starting at minute 50:50].

Cement plants and industrial boilers are two of the largest industrial emitters of mercury in the United States. Giving these industries a free pass, while over 100 other industries have already controlled their toxic pollution makes no sense and will seriously harm Americans’ health.

Incinerators and industrial boilers spew toxic air pollution such as cancer-causing dioxins, arsenic, and mercury and lead, which harm children’s brains. EPA is currently reconsidering toxic air pollution standards for these facilities and expects to finalize them by April of 2012. H.R. 2250 blocks critical health protections against mercury and toxic air pollution that are already a decade overdue. The bill blocks final standards by a minimum of 3.5 more years.

Cement plants also spew mercury and other deadly toxic air pollution. EPA finalized toxic air pollution standards for cement plants one year ago, in September 2010. These standards already are thirteen years overdue, and H.R. 2681 would further delay standards by a minimum of 4.5 years.

Both bills, however, then gratuitously repeal longstanding Clean Air Act compliance deadlines, thereby allowing actual compliance with any future standards to be delayed indefinitely. As summarized below, these delays will result in vastly more asthma attacks, more illness, and more avoidable deaths.

According to EPA’s analysis [pdf], as summarized in a recent White House blog, these two bills collectively would mean, at a minimum:

32,500 more premature deaths;
19,500 additional heart attacks; and
208,000 asthma attacks that otherwise would have been avoided.

I’ve testified in opposition to these irresponsible bills before the Energy and Power Subcommittee of the House Energy and Commerce Committee. Since my testimony, a minor amendment was made to the bills in an attempt to obfuscate the delays and radical re-writes to the Clean Air Act built into the bills.

Make no mistake, just like the original versions of these bills, H.R. 2250 (incinerators and boilers) and H.R. 2681(cement plants) as amended, still weaken the Clean Air Act severely to prevent the possibility of protective toxic air pollution standards while authorizing the indefinite postponement of compliance with any standards.

How do the bills accomplish this?

1) The final sections of both bills eliminate the most protective legal standard for reducing toxic air pollution that has been in the Clean Air Act for nearly twenty-one years. The two bills then replace this strong standard with the absolute least protective measures even mentioned in the law, “work practice standards” such as equipment tune-ups that need not even reduce emissions.

This single provision in both bills would have the effect of exempting incinerators, industrial boilers and cement plants from maximum reductions in toxic air pollution emissions, in contrast to every other major industrial source of toxic air pollution in the nation. Testimony [pdf], at 10-13, 16-17.

2) The “compliance dates” section in both bills, even as amended, eliminates statutory deadlines by which polluters must comply with toxic air pollution standards, once re-issued. Instead, the bills direct EPA to establish a date for compliance that is “not earlier than 5 years” from the date the bill is signed into law. This represents a 2-year delay beyond the latest compliance date required for every other industry in the country, but also imposes the unprecedented total elimination of any firm statutory compliance deadline.

Cement plants, incinerators and industrial boilers are some of our nation’s biggest polluters of mercury, cancer-causing dioxins, lead, and acid gases. H.R. 2250 and H.R. 2681 would give these industries a free pass from any meaningful cleanup obligations while allowing compliance with any future weak standards to be delayed indefinitely.

In the process, these bills will sacrifice tens of thousands of lives, pollute the air we breathe, and expose our children, families, and communities to toxic air pollutants that cause illness and developmental disorders.

Why The TRAIN Act's Fig Leaf is Inadequate to Protect Americans From Power Plant Air Pollution

2011-09-23T14:32:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

The TRAIN Act (H.R. 2401) repeals the more protective smog and soot limits in the EPA's “Cross State Air Pollution Rule” and blocks adoption of the mercury and air toxics standards, both for power plants. These attacks would result in up to 33,450 premature deaths, thousands of heart attacks and many tens of thousands of asthma attacks. The legislation does maintain, however, the Bush EPA “Clean Air Interstate Rule” (CAIR) that was overturned [pdf] in court in 2008.

TRAIN Act supporters claim this is enough to protect Americans from power plant air pollution.

They are wrong.

First, CAIR does not create emission limits for mercury, arsenic, lead, dioxins, acid gases or the approximately eighty hazardous air pollutants emitted by power plants; EPA projects that reducing these toxic air pollutants from power plants will save up to 17,000 lives once implemented.

Second, CAIR allows one hundred thousand more tons of smog-forming nitrogen oxide pollution than the newer cross-state rule, and two hundred thousand more tons of soot-laden sulfur dioxide pollution.

Third, the newer cross-state rule will save 8,300 more lives per year than CAIR, and avoid many more heart attacks, asthma attacks, emergency room visits, and lost days of school and work.

Fourth, in 2008, the U.S. Court of Appeals for the D.C. Circuit overturned [pdf] CAIR. The court directed EPA to re-examine CAIR because it had “fatal flaws” [pdf] in its methodology to measure states’ contributions to air pollution and did not ensure that each state was meeting its goals because of its trading rules. EPA adopted CSAPR to respond to the court's concern that downwind communities were not adequately protected due to the unfettered emissions trading allowed by CAIR. EPA also updated its methodology to respond to the court’s order.

Accordingly, the newer cross-state rule is better crafted to ensure that no downwind communities will suffer from power plant air pollution travelling from out of state. State clean air officials will not have to seek emissions reductions from local businesses as much as they would have to under CAIR, because out of state power plants are reducing more of their fair share of pollution under the newer cross-state rule.

We urge you to call your Representative and urge them to vote “NO” on H.R. 2401 – and the equally dangerous Whitfield and Latta amendments – and block this reckless attack on clean air protections for all Americans.

Correcting Outright Misrepresentations about the TRAIN Act by its Supporters

2011-09-23T14:02:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

A Republican Congressman took to the House floor yesterday to flatly misrepresent the clear and harmful consequences of the TRAIN Act (H.R. 2401), which blocks and stalls significant clean air protections, allowing their permanent delay. The error-ridden defense of the bill by Rep. Rob Bishop (R-UT) might have reflected a profound misunderstanding of the 12-page bill. More likely it showed an awareness that if the truth were known, the American people would never support legislation that repeals and delays clean air protections saving tens of thousands of lives and avoiding mercury poisoning of children and the unborn.

I set the record straight with the following side-by-side comparison of Bishop’s remarks and the actual legislation and its legal and health consequences

Claims by Rep. Rob Bishop (R-UT)	The TRAIN Act Reality
Mr. Bishop suggested the TRAIN Act is just a study bill.	This is untrue. Section 5 of the bill, entitled “Regulatory Deferral of Certain Rules,” repeals the already adopted cross-state smog and soot standards for power plants. It further prohibits final adoption of the mercury and air toxics standards for power plants, due by court order this November. The bill imposes a minimum period of delay to the smog and soot standards, and mercury and air toxics standards, of 19 and 15 months, respectively. This allows up to 33,450 premature deaths that these standards otherwise would prevent during this period. The TRAIN Act then eliminates any actual deadlines for EPA to re-issue health standards, allowing these life-saving standards to be blocked indefinitely.
Mr. Bishop said that the TRAIN Act “doesn’t stop [any] rulemaking, doesn’t stop any rule.”	This is untrue. See above.
Mr. Bishop said that the TRAIN Act “doesn’t rollback anything.”	This is untrue. See above. By repealing the cross-state rule's stronger smog and soot standards, and blocking the mercury and air toxics standards, the bill rolls back smog and soot standards to the weaker Bush-era “Clean Air Interstate Rule” (CAIR),which was overturned in court in 2008 for being inadequately protective of downwind states. CAIR did not set emission limits for mercury, arsenic, lead, dioxins or the roughly 80 hazardous air pollutants emitted by power plants. The TRAIN Act does not replace that void with any air toxics limits during the 15-month period of delay it imposes. CAIR allows one hundred thousand more tons of smog-forming nitrogen oxide pollution than the newer cross-state rule, and two hundred thousand more tons of soot-laden sulfur dioxide pollution.
Mr. Bishop said the TRAIN Act “doesn’t kill anybody.”	This is untrue. By repealing and blocking health safeguards that would save up to 33,450 lives during its 15-19 month period of delay, the TRAIN Act allows deaths to occur that these clean air standards otherwise would prevent. And because the legislation allows permanent delay of these protections, the deaths toll could rise dramatically. The TRAIN Act would be responsible for allowing those deaths to occur.
Mr. Bishop said that the TRAIN Act “doesn’t destroy anything, it doesn’t cut anything, it doesn’t stop anything."	This is untrue. See above.

Section 5 of the TRAIN Act on its face would repeal critical clean air safeguards against deadly soot and smog pollution. It would block the decade-overdue mercury and air toxics standards from being finalized this year. It would delay these standards 15-19 months, resulting in up to 33,450 premature deaths, thousands of heart attacks and many tens of thousands of asthma attacks. And on top that the bill allows the indefinite delay of these standards, denying their benefits to Americans forever.

Extreme Dirty Air Amendments Launch Pollution Warfare on Americans' Health, Abolish Right to Clean Air

2011-09-21T02:59:08Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

The TRAIN Act (H.R. 2401 [pdf]) and the amendments that will be voted on this week on the floor of the House of Representatives have degenerated into the most dangerous attacks on clean air since the Clean Air Act was signed into law 40 years ago by President Nixon. TRAIN already was the most irresponsible dirty air legislation ever to be brought to the House floor. But two Republican amendments to the bill quietly introduced last night contain far more extreme attacks on health protections that take us into reckless territory never before seen in Congress.

The underlying TRAIN Act would block EPA standards to clean up smog, soot, mercury, dioxins, and other toxic air pollution from power plants, then allow those safeguards to be delayed indefinitely. The bill would cost a minimum of 34,000 lives, with indefinite delay allowing over 25,000 additional deaths every year.

However, in a sneak attack that assaults the very heart of the Clean Air Act, two amendments were just released that would fundamentally eviscerate two of the law's most vital health programs. One amendment would repeal clean air protections that will save over 130,000 lives and avoid over 1 million asthma attacks. The second would eliminate Americans' 40-year right to clean air and replace it with a process that will lie to us about the safety of the air we breathe.

The amendments will be considered this week along with the underlying bill, which is expected to come up for a vote on the House floor as soon as Friday, September 23rd.

Latta Amendment Abolishes 40-Year Right to Clean Air, Lies to Americans About Unhealthy Air

An amendment [pdf] filed by Rep. Bob Latta (R-OH) eliminates the forty year-old requirement that EPA base clean air standards on health science and medicine alone in determining whether the air is safe to breathe. Instead, the amendment directs EPA to define healthy air based equally on the “feasibility and cost” to polluting industries, which would compel EPA to accept air quality standards that do not protect public health. The amendment robs Americans of their fundamental right to clean air, promised by the Clean Air Act since its adoption in 1970. Instead, EPA would be forced to set unprotective air quality standards for smog and soot and lead pollution that are at odds with health science, based on cost complaints by polluting industries.

This is like an insurance company prohibiting your doctor from telling you whether you have cancer, if a company bean counter thinks the cost of treatment is too high. Instead, the doctor would be ordered to lie to you, tell you you're not sick, and send you home.

It's like Congress ordering the Food & Drug Administration to allow unsafe infant formula or medicine, overriding doctors and scientists, if some economists decide it's too "burdensome" on industry to provide safe products. While the government and industry lie to us about the safety of those products.

As I've written before, the very foundation to the Clean Air Act requires air quality standards to be founded on science and the best medical understanding of air pollution's health hazards. Economic considerations may not distort the scientific decision over how much air pollution is unhealthy for Americans. Economics can and do factor in to how best to reduce unhealthy air pollution levels using cost-effective measures.

The Latta amendment would stick Americans with whatever dirty air was acceptable to economists and accountants, to hell with doctors, scientists and evidence telling us how much air pollution is actually harmful to human health.

The Latta amendment would replace truthfulness about the purpose and promise of the law -- clean air for all Americans -- with a deadly deception that misrepresents the basic safety of the air we breathe.

The Clean Air Act would become the Clean Air* Act, with the asterisk adding the qualifier that medical and scientific evidence had to be ignored because some future EPA political appointees and economists decided polluting industries should not have to bear the cost of cleaning up their own pollution.

Under the Latta amendment, the Clean Air Act and Congress would no longer deliver clean air to Americans. Standards would not be based upon what is necessary “to protect the public health,” “allowing an adequate margin of safety” to protect the vulnerable, including the elderly and asthmatics. This is the Clean Air Act promise that has protected Americans for over 40 years.

The Latta amendment eradicates that promise and subordinates it to the Unholy Grail of Big Polluters: replacing Americans' right to clean air with polluters' right to trump public health.

The Latta amendment would accomplish what an army of industry lawyers and lobbyists tried to do in the late 1990's and failed, when a unanimous Supreme Court decision by Justice Scalia in 2001 ruled that any consideration of cost to polluting industries would violate the Clean Air Act when EPA sets health standards for ozone or other air pollutants. The Latta amendment would overturn that unanimous Supreme Court ruling.

Whitfield Amendment Sets New Lows In Extreme Assaults on Clean Air Protections

The second dirty air amendment [pdf] to the TRAIN Act, offered by Rep. Ed Whitfield (R-KY), is the most radical amendment to the Clean Air Act ever offered by a member of Congress.

The amendment adds destructive insult to the injury of a TRAIN Act that already was the dirtiest air pollution bill ever to pass a Committee in Congress (as the result of an earlier amendment by Mr. Whitfield too). The new Whitfield amendment is so extreme and would cause so much death, disease and human misery that it is morally unconscionable.

The Whitfield amendment blocks the power plant smog and soot standards already targeted by TRAIN for more than 8 years, costing over 12,000 lives every year. The amendment blocks the power plant mercury and air toxics standards for more than 3 years, costing up to 17,000 lives every year.

By blocking the mercury and air toxics standards and smog and soot standards for this period of time, the Whitfield amendment would result in:

as many as 136,000 lives lost due to smog, soot, and toxic air pollution;
more than 58,000 heart attacks;
more than 1 million asthma attacks;
over 66,000 more hospital and emergency room visits; and
over 1 million more days of missed work or school.

These two clean air standards are projected to save the lives of as many as 1,400 Kentuckians every year, yet one of the Commonwealth’s own elected representatives is trying to block health safeguards that would save many thousands of lives in Kentucky. The death toll across America is even more horrific.

Like the TRAIN Act itself, the Whitfield amendment eliminates any actual deadline for EPA to re-issue smog, soot, mercury or air toxics standards, allowing these life-saving standards to be shelved indefinitely. The amendment thus repeals current law, which has imposed firm deadlines for EPA to issue air toxics standards for polluting industries ever since the 1990 Clean Air Act Amendments.

Just as irresponsibly, the Whitfield amendment would cripple the longstanding manner in which the Clean Air Act’s toxic air pollution standards are set. Instead of basing standards on the cleanest plants, as required for over twenty years, the standards would be based on what the oldest, dirties plants are doing. This would allow the worst performers for some highly toxic pollutants, like mercury or lead or dioxins, to be mashed together with the better performers for other pollutants, driving a result that is far less protective than that followed by EPA under every administration since 1990. Not even the Bush administration attempted to adopt air toxics standards under the law in this twisted fashion, and for good reason.

The Whitfield amendment next resorts to cynical Washington paralysis by analysis to make it harder to reduce acid gases, dioxins and other cancer-causing toxins. For over twenty years, the Clean Air Act has required the nation’s biggest industrial polluters – and power plants are the biggest – to reduce all of their toxic air pollution. Not the Whitfield amendment.

As observed by my NRDC colleague Dave Hawkins, head of EPA's air program in the late 1970's, the Whitfield amendment forces EPA to return to the fundamentally failed approach to toxic air pollution that existed prior to the 1990 Clean Air Act Amendments. Before that important update to the law, EPA was forced to undertake lengthy and cumbersome risk assessments for every toxic air pollutant and every industry it faced. With industry lobbyists tying EPA up in knots, this resulted in the ageny issuing only a handful of toxic pollution standards over nearly two decades, subjecting the American people to unhealthy air and excessive cancer risks.

In the 1990 law, overwhelming bipartisan majorities in Congress threw up their hands in disgust over the agency’s glacial pace and paralysis by analysis. Since the 1990 law, EPA has issued over one hundred successful standards to reduce toxic air pollution by millions of tons. The utility sector has escaped its fair share of reductions due to lawbreaking and inexcusable delays, meaning that required toxic cleanup standards now are more than a decade overdue.

The Whitfield amendment cynically reinstates the historically discredited paralysis and guarantees EPA will be prevented from reducing carcinogens and neurotoxins to protect Americans. And the amendment ensures there will be many more years of delay beyond the three-year delay that the amendment nominally imposes, due to the cumbersome red tape that the amendment dictates.

Even worse, for any toxic pollutants that survive the amendment’s paralysis by analysis, the Whitfield amendment eliminates the most protective legal standard for reducing toxic air pollution that has been a Clean Air Act pillar for nearly twenty-one years. The amendment replaces these meaningful standards – to achieve maximum reductions in toxic pollution – with the absolute least protective measures even mentioned in the law. This would allow actual emission reductions and controls to be replaced by meaningless “work practice standards,” such as tune-ups to utility boilers that need not even reduce emissions.

The Whitfield amendment also re-instates an unfettered cap-and-trade program for smog and soot pollution, no matter how much emissions trading threatens downwind states' air quality. In doing so, the amendment overturns a court ruling [pdf] by a conservative panel of D.C. Circuit judges that said such unrestricted emissions trading hurt downwind states and violated the Clean Air Act, by allowing unconstrained pollution “credit” purchases that dispensed with the need for pollution controls and their actual emissions reductions.

One can only marvel at the hypocrisy of politicians that turned the phrase “cap-and-trade” into a slur during debates over climate change legislation, yet now turn around and embrace cap-and-trade when that approach is less protective of basic air quality and demanded by industry lobbyists. (Mr. Whitfield even has statements on his web site bizarrely vowing to fight against cap and trade systems, without any differentiation between types of air pollution.)

The Whitfield amendment is a dream bill for Big Polluters. It comes as no surprise, then, that the amendment adopts key features from an atrocious bill drafted earlier this year by the country’s most polluting utility company, American Electric Power. No member of Congress would touch that bill with a ten foot pole once AEP's drafting role became public knowledge. Until Mr. Whitfield's bill.

For example, the cynical paralysis-by-analysis element of the Whitfield amendment was lifted from the AEP bill. Moreover, the extreme delays in the amendment are very similar to those in the AEP bill.

EPA’s smog, soot and toxic air pollution standards for power plants together will save more lives and prevent more disease than other clean air standards in the country's proud history. And the Whitfield amendment unceremoniously trashes all that.

The dirty legislation may be a dream bill for polluters but it is a nightmare for all Americans who care about their families’ health and the air we breathe.

Please urge your member of Congress to oppose the TRAIN Act and the Latta and Whitfield amendments.

Oppose the TRAIN Act, the Worst Air Pollution Bill Ever to Reach the House Floor

2011-09-20T03:28:10Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

The TRAIN Act (H.R. 2401)—the most deadly bill on House Majority Leader Eric Cantor’s Pollution Plan—is expected to be brought up for a House floor vote this Friday (9/23).

As initially introduced, the TRAIN Act was a biased and irresponsible “study” bill—creating a committee of cabinet members to review just the costs of a multitude of Environmental Protection Agency (EPA) health standards, while ignoring the greater health and monetary benefits to Americans. While this version of the bill would have been harmful to human health, the bill is now an entirely different, and much more deadly beast.

Why would the current version of TRAIN result in so many more deaths and health hazards? The answer is an amendment from Rep. Whitfield (R-KY) added to the bill in Full Committee that could permanently block two life-saving clean air safeguards: the Cross-State Air Pollution Rule, which curbs smog and soot pollution from power plants that crosses state lines, and the Mercury and Air Toxics standards, which limit mercury and other toxic air pollution from power plants. It would do this by forbidding the Environmental Protection Agency (EPA) from re-issuing the Cross-State Air Pollution Rule for a minimum of 19 months, and any Mercury and Air Toxics standards for a minimum of 15 months.

But the amendment does not stop there. It also eliminates any actual deadline for EPA to re-issue standards, repealing current law, which has imposed firm deadlines for EPA to issue air toxics standards for polluting industries ever since the 1990 Clean Air Act Amendments. Thus, the TRAIN Act that passed out of the House Energy and Commerce Committee would allow these life-saving standards to be shelved indefinitely.

The health standards that the TRAIN Act will prevent are long overdue and would save tens of thousands of lives every year once they are implemented. I’ve blogged about how important the Cross-State Air Pollution Rule and Mercury and Air Toxics standards are here, here, here, here, and here. Blocking these standards for just one additional year would result in:

up to 25,300 lives lost;
more than 11,000 heart attacks;
more than 120,000 asthma attacks;
over 12,200 more hospital and emergency room visits; and
many hundreds of thousands more days of missed work or school.

And the bill’s lengthier minimum periods of delay (15 & 19 months) would result in up to 33,450 premature deaths. The real toll likely will be much higher since the legislation allows indefinite delays in these vital public health safeguards.

While the initial version of the TRAIN Act was bad, the version the House is scheduled to vote on this week is indefensible. It will sacrifice tens of thousands of lives, pollute the air we breathe, and expose our children, families, and communities to toxic air pollutants that cause illness and developmental disorders.

We urge you to call your Representative and urge them to vote “NO” on H.R. 2401 and block this reckless attack on clean air protections for all Americans.

Photo by Phil Norton on Flickr

Oppose Bills That Repeal Health Safeguards Against Mercury Pollution

2011-09-12T05:17:00Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

Here is testimony I delivered at a September 8th hearing before the House Energy & Power Subcommittee, in which I opposed two destructive bills to severely weaken and indefinitely delay mercury and air toxics cleanup standards for thousands of industrial polluters.

My longer written statement is available here [pdf] and my oral statement follows below. (I also have written posts about one or both of these dirty bills here, here, here and here.)

* * * * *

Thank you, Mr. Chairman and members of the Subcommittee, for the opportunity to testify today. My name is John Walke, and I am clean air director and senior attorney for the Natural Resources Defense Council.

The two bills that are the subject of today’s hearing, H.R. 2250 and H.R. 2681, weaken the Clean Air Act drastically to authorize the indefinite delay of toxic air pollution standards for incinerators, industrial boilers and cement plants. Worse, these bills rewrite the Clean Air Act and overturn multiple federal court decisions to eviscerate strong toxic air pollution standards that under current law must be applied to control dangerous mercury, lead, dioxins and acid gases from these facilities.

Industrial boilers and cement plants are some of the largest emitters of mercury and scores of other toxic air pollutants that still are failing to comply with basic Clean Air Act requirements for toxic pollution over two decades after adoption of the 1990 amendments. Yet here we are today discussing whether to authorize the indefinite delay of toxic air pollution safeguards for these industries. This is not responsible public policy.

Were these standards to be delayed by even a single year by these two bills, the potential magnitude of extreme health consequences would be as follows:

Up to 9,000 premature deaths;
5,500 non-fatal heart attacks;
58,000 asthma attacks; and
440,000 days when people must miss work or school.

Yet H.R. 2250 blocks mercury and air toxics safeguards for a minimum of 3.5 years, causing an additional 22,750 premature deaths; 14,000 non-fatal heart attacks; and 143,000 asthma attacks beyond what current law will prevent.

By the same token, H.R. 2681 blocks mercury and air toxics safeguards for a minimum of nearly 5 years, causing an additional 11,250 premature deaths; 6,750 non-fatal heart attacks; and 76,500 asthma attacks beyond what current law will prevent.

EPA estimates that the value of the health benefits associated with the incinerator and boiler standards are between $22 billion to $54 billion starting in 2014, compared with industry compliance costs estimated at only $1.4 billion. EPA has found that the benefits of these cement health standards will be as high as $18 billion annually starting in 2013, with benefits significantly outweighing the costs by a margin of up to 19:1. What other Congressional actions or stock market investments result in this astonishing return on investments for the American people?

Let me emphasize in the strongest possible terms that these bills are not mere “15 month delays of the rules as EPA itself has requested,” as some have cast the legislation. First, the bills cause the complete evisceration of the substantive statutory standards for achieving reductions in toxic air pollution. The final sections of both bills eliminate the most protective legal standard for reducing toxic air pollution that has been in the Clean Air Act for nearly twenty-one years. The two bills replace this with the absolute least protective measures even mentioned in the law. This represents gross over-reaching beyond the April 2012 deadline EPA is following. This is not defensible public policy.

This single provision in both bills would have the effect of exempting incinerators, industrial boilers and cement plants from maximum reductions in toxic air pollution emissions, in contrast to almost every other major industrial source of toxic air pollution in the nation.

Second, the bills eliminate any statutory deadlines for EPA to re-issue standards to protect Americans. For longstanding, mandatory deadlines, the legislation substitutes a mere instruction that EPA may finalize future standards “on such later date as may be determined by the Administrator.” Why are members suddenly interesting in granting complete, open-ended discretion to EPA just when it carries purely deregulatory consequences?

Both steps are unprecedented in this Committee or any other legislation introduced in Congress to my knowledge.

I hope you will not vote for bills as irresponsible as these two.

But if members have decided to do so already, I respectfully appeal to your sense of honesty and decency to do at least this. Please explain clearly to your constituents, to the church congregations in your districts, to all Americans why you are voting to actively eliminate protections for children and the unborn against industrial mercury pollution and brain poisoning.

Especially those among you that are on record for protecting children and the unborn in other contexts, please explain why there is a double standard where it is acceptable to actively dismantle existing protections for children and the unborn against industrial mercury pollution.

These bills could be called the Mercury Poisoning Acts of 2011, yet I did not hear the word "mercury" so much as mentioned in opening statements before [EPA Assistant Administrator for Air] Ms. McCarthy’s testimony by members that are voicing support for these bills. How can that be?

In closing, I urge you not to weaken the Clean Air Act so profoundly, and cause so much preventable premature deaths, asthma attacks and mercury poisoning.

I welcome any questions about my testimony, especially regarding any disagreements about factual or legal characterizations concerning the two bills.

* * * * *

Note: no member at the hearing challenged my legal or factual characterizations of the bills or their consequences. There will be a vote on both bills in the subcommittee on September 13th.

The President Sabotages Clean Air Protections, Part 1

2011-09-05T21:01:30Z

John Walke, Clean Air Director/ Senior Attorney, Washington, D.C.

In the most outrageous environmental offense of the Obama administration, the president himself has intervened politically to block the Environmental Protection Agency from correcting an unprotective smog standard that the head of EPA recognizes to be scientifically and legally indefensible [pdf]. The president's own rationale for interference defies the Clean Air Act and a unanimous Supreme Court decision, elevating unlawful considerations above public health, science and the law.

The president’s intervention is compounded by grievous legal and factual errors. The president sided with Big Oil and other polluters based on their claims about regulatory burden, notwithstanding that compliance with stronger smog standards would not have been required until 2016 anyway, and stronger safeguards will save the country money too.

Siding with an unprotective smog standard adopted by the Bush administration under equally politicized circumstances, the president has condemned EPA and his Department of Justice to defend that Bush standard in court against lawsuits by the American Lung Association, NRDC, and a dozen states, including the president's own. After EPA Administrator Jackson has deemed that Bush standard to be “not legally defensible given the scientific evidence.” [pdf]

News coverage of the Friday Smog Massacre only scratched the surface of the deeper levels of capitulation, illegality and harmful consequences embodied in the president's action. All to serve political interests above the health of the American people, compliance with the law, and respect for scientific integrity.

I will plumb those deeper levels in a series of posts starting with this one.

A Brief History of Lengthy Delay and Lawbreaking

Public health standards protecting all Americans against dangerous ground-level ozone or smog pollution were last set in accordance with sound science and the Clean Air Act in 1997. Then-EPA Administrator Carol Browner adopted a health standard of 0.08 parts per million. In all too familiar EPA preference for laxity, regardless of political party, that number was rounded up to 0.084 parts per million or 84 parts per billion (ppb). That 84 ppb level remains the permissible concentration of smog pollution today that federal and state officials across the country are enforcing

Despite the Clean Air Act requirement that clean air standards be reviewed and revised every five years, the Bush administration delayed and failed to revise the 1997 ozone standards until March of 2008. Then-EPA Administrator Stephen Johnson disregarded the unanimous recommendations of EPA’s independent, expert science advisors that the 84 ppb standard be lowered to between 60 and 70 ppb in order to protect public health with an adequate safety margin. Instead Johnson set the standard well outside that range at 75 ppb [pdf].

After Johnson rejected the science advisors’ unanimous ozone advice, the advisors took the extraordinary step of writing a strong letter to him condemning [pdf] his weaker 75 ppb standard: “[T]he members of the CASAC Ozone Review Panel do not endorse the new primary ozone standard as being sufficiently protective of public health.”

Johnson’s reasons for refusing to follow the science and the advisors’ recommendations were a joke. His reasoning carried the same hallmarks of tortured excuse and silence in the face of contrary evidence that characterized another Bush EPA air quality standards decision. In 2006, Johnson disregarded the near-unanimous advice of these same expert advisors when he adopted similarly unprotective standards for soot pollution, or PM2.5. One month into the Obama administration, a federal court found [pdf] the Bush administration soot standards arbitrary and overturned them, sending them back to EPA to start over.

A Promise to Follow Science and the Law, and Protect Public Health

Administrator Jackson wished to avoid the same fate in court for the unlawful ozone standards issued by the Bush EPA. Lawsuits had been filed against these standards in 2008 by the American Lung Association, NRDC and other environmental groups and more than a dozen states and cities. Numerous industry groups challenged the Bush standards too, comically claiming them to be unlawfully stringent.

More importantly, speaking to the public health and welfare standards for ozone, Jackson indicated [pdf] that she wanted to “ensure that two of the nation’s most important air quality standards are clearly grounded in science, protect public health with an adequate margin of safety, and are sufficient to protect the environment.”

So in September 2009, she announced that EPA would reconsider the inadequate 2008 Bush ozone standards. Stating the obvious, she noted that “[t]he ozone standards set in 2008 were not as protective as recommended by EPA’s panel of science advisors, the Clean Air Scientific Advisory Committee.”

In January 2010, EPA proposed [pdf] to strengthen the Bush ozone standards to fall within the 60 to 70 ppb range recommended by the science advisors, and the agency solicited public comment.

It was widely rumored in Washington and believed in clean air circles that by the fall and early winter in 2010, Administrator Jackson wished to finalize ozone standards at the mid-point of the range recommended by EPA’s science advisors – 65 parts per billion.

Strengthening the ozone standard to this level would have avoided [pdf] approximately 8,000 premature deaths, and prevented 3,800 nonfatal heart attacks and 40,000 asthma attacks beyond the Bush standard, every year.

More Delays and a Breakthrough

In December 2010, however, Administrator Jackson announced that she would delay adoption of final standards until July 29, 2011. This marked the third delay in 5 months, following delays in August and October, 2010. Her stated reason [pdf] was that “additional advice from [EPA’s expert science advisors] may prove useful and important in evaluating the scientific and other information before her.”

Agency watchers assumed the real reason was the White House. Considering the unanimous and forceful recommendations from EPA’s science advisors and staff scientists, what more could be gained from double-checking with those advisors? To confirm that they really meant it?

The only plausible explanation was that Jackson had faced opposition from the White House political machinery and she was looking to the independent science advisors to re-emphasize the even greater need in 2011 for stronger standards. Perhaps they might even indicate that protections at the lower end of their recommended range, at or below the 65 ppb level Jackson reportedly wished to adopt, would best protect the American people.

Industry representatives concluded the same thing about the political reasons for this third delay; their lobbying frenzy accelerated and targeted the White House even more feverishly.

Hastily re-convened, in March of this year the science advisors predictably reaffirmed their unanimous recommendations that the smog standard be set between 60 and 70 ppb, writing [pdf] that “the evidence is sufficiently certain to be confident of public health benefits and additional protection for susceptible groups.” Individual advisors supplemented that conclusion with observations of adverse health impacts at the lower end of that range, suggesting the advisability of a standard closer to 60 than 70.

In early summer information began circulating that the Administrator had settled on her number. Journalists began calling around in June asking what people knew about ozone meetings that reportedly were occurring between Jackson and White House chief of staff, Bill Daley. The journalists mentioned dark reports they were hearing about Jackson facing stiff opposition from the White House. The reporters did not know what number Jackson was discussing with Daley. But following the science advisor’s strong reaffirmation of their original recommendations, the strength of ozone science, and reports that she favored 65 in December, it was hard to imagine her going to the White House with a number weaker than 65 in June.

Through other channels outside the administration came reports of White House officials poring over maps to determine which areas of the country would be out of attainment with smog standards set at different levels. There were reported conversations involving White House officials already floating the idea of deferring correction of the unprotective, illegal Bush standard until 2013, while suggesting they would set the standard then at 60 ppb in line with ozone science that only had grown stronger since 2008 to show emphatic health hazards at that level.

One day I mentioned this Wimpy “gladly pay you Tuesday for a hamburger today” 60 ppb rumor to an EPA official. On the other end of the phone I heard what sounded like a barely suppressed fit of derisive laughter.

Nearing the Finish Line

What we do know happened next is that EPA transmitted its official, draft final ozone standards to the White House on July 11th, an event logged on a White House website. This immediately suggested the following to knowledgeable observers: there had been a breakthrough, likely a compromise, between EPA and the White House. EPA was being allowed to finalize more protective smog standards reflecting an agreement brokered between Jackson and the White House.

A particular feature of the Clean Air Act explains why that public transmittal to the White House was so laden with meaning. All proposed and final Clean Air Act rules transmitted to the White House Office of Management and Budget, and circulated for inter-agency review, must be made publicly available when the rule is finalized. In this way the public can see the before-and-after versions of clean air rules to clearly see any changes wrought by the White House or sister agencies, and reach their own conclusions as informed citizens about potential political interference.

This carries well-understood implications for the dynamic surrounding White House-EPA negotiations over clean air regulations. The surest way for any White House to interfere politically with clean air standards and block public awareness of that interference is to stop EPA from sending rulemaking packages to the White House. (That, for example, is why there was the tragi-comic controversy during the George W. Bush administration in which White House officials frantically insisted that an EPA official rescind an email that had transmitted EPA’s finding that greenhouse gas pollution endangers the public welfare.)

Once EPA does transmit a rulemaking package to the White House, both parties therefore understand this means EPA’s preferred standards will become a matter of public knowledge. (Cue the sinister background music and get ready for a foreshadowed plot twist in my next post.)

Based on this July 11th transmittal, clean air advocates reached the same conclusion that industry lobbyists did across Washington: the White House and EPA had agreed to finalize stronger smog safeguards.

Not long thereafter, in late July and August, rumors began circulating that the EPA package contained a standard of 70 ppb, to the point that reporters began calling seeking reaction to that number and asking how the White House had forced Jackson to retreat from 65. But it remains unknown how or even if the smog standard weakened from 65 to 70 from December to July.

As plaintiffs to the ozone lawsuit over the Bush standard, I think we got a phone call from EPA the morning of July 26th, 3 days before the July 29th deadline by which EPA had last said it would finalize ozone standards. EPA was going to announce that it would miss this deadline too – the fourth missed deadline since August 2010.

The notice of this latest delay reads almost pathetically in the aftermath of the Friday Smog Massacre: “We look forward to finalizing this standard shortly. A new ozone standard will be based on the best science and meet the obligation established under the Clean Air Act to protect the health of the American people. In implementing this new standard, EPA will use the long-standing flexibility in the Clean Air Act to consider costs, jobs and the economy.”

Despite this latest delay, however, administration officials still were saying the right things publicly about their intention to issue strengthened standards, recognizing the law’s prohibition on cost considerations when setting scientifically grounded clean air standards. In late July, White House officials were vowing they would promote flexible, cost-effective measures to implement new smog standards, as the law allows, while establishing "smart standards that are based on science and the law,” not economics, as the law requires.

So much for promises.

During this entire period, of course, industry lobbyists were jumping into over-drive lobbying the White House with openly illegal arguments and threats to the president’s re-election. I have dealt with that lobbying spectacle (here, here and here) but I’m too revolted by the lobbyists’ immoral triumph to spend any more time on the despicable details.

Cut Off at the Knees

Shortly after 9:00 on the morning of the Friday Smog Massacre, September 2nd, White House Chief of Staff Bill Daley telephoned the heads of some public health and environmental groups to deliver the shocking news: the president was scuttling protective smog standards in favor of Bush standards that Administrator Jackson deems legally indefensible and unsafe.

The environmental groups had been invited to the White House for a 10:00 meeting whose agenda revealed nothing of the coming disaster. The last minute phone calls ensured that White House officials would not have to announce the bad news in person to an unsuspecting audience, just one that had been blindsided in transit to the meeting.

The presidential statement and OMB letter were all tidied up by then and readied for release to the press by 10:00, just as the meeting began.

Not EPA’s statement. The agency was left behind in a wake of political pathos, gasping, and managing only to issue the same presidential statement shortly after the White House already had done so. An administration official confirmed that the White House had informed EPA officials only the day before. The agency had no statement of its own prepared (or at least none yet approved for release by the White House).

By 10:15 am, the evil wizards at the Chamber of Commerce and American Petroleum Institute probably had popped the corks already for Voldemort cocktails of champagne and unicorn's blood.

EPA released its own statement after 11:30. It is a textbook example of suppressed anger and resignation delivered through pursed lips. It does not mention the ozone standards until the final curt sentence of a three-sentence statement: “We will revisit the ozone standard, in compliance with the Clean Air Act.”

I choose to read meaning into this sentence that Administrator Jackson surely did not intend. The words to me convey the plaintive reality that this political capitulation, this presidential directive to EPA to uphold legally indefensible smog standards, was not an act “in compliance with the Clean Air Act.” Those quaint words linger at the close of the statement like a rebuke. Only in “revisiting” the ozone standards according to the president’s political timetable can EPA hope to one day comply with the law.

The White House had resorted to the same act of bury-the-story political cowardice that the Bush administration perfected when announcing anti-environmental decisions on the Friday of a holiday weekend. The White House was justifiably embarrassed by the announcement because the capitulation was humiliating and irresponsible.

News outlets soon reported that in a telephone news conference White House officials, hiding behind anonymity, “repeatedly denied that politics played a role in the decision.”

"This is not a product of industry pressure but a judgment of the merits of the rule," said one senior administration official, who spoke on condition of anonymity. "It has nothing to do with politics, nothing at all."

This is abject nonsense.

There is not a single word, not the slightest intimation, in the presidential statement or the accompanying apologia from OMB that the White House sabotage was a “judgment of the merits of the rule.” (I will examine the excuses in the presidential statement and OMB letter in a follow-up post.)

The merits of that rule concerned whether the 2008 Bush ozone standards were consistent with the Clean Air Act’s requirement to set air quality standards that are “requisite to protect the public health,” “allowing an adequate margin of safety.” [§ 7409(b)(1).] Legislative history further requires ‘‘the maximum permissible ambient air level. . . which will protect the health of any [sensitive] group of the population,” such as children, the elderly and asthmatics.

When proposing [pdf] in January 2010 to correct and strengthen the flawed Bush standards, Administrator Jackson described the substance of the rulemaking as a proposal by EPA “to set different [air quality] standards than those set in 2008 to provide requisite protection of public health and welfare, respectively.”

Where did the president or OMB render judgment on the merits whether the Bush standards were legally and scientifically sufficient to protect public health? Whether the Bush standards provided an adequate margin of safety to sensitive groups like children?

Nowhere.

And when the president orders the only government official authorized by the Clean Air Act to set air quality standards not to correct unprotective standards that she has publicly declared scientifically and legally indefensible; when he invokes a rationale for refusing to enforce the law that a unanimous Supreme Court has declared unlawful; when that rationale is the rhetoric and product of an intense industry lobbying campaign relying upon the same unlawful factors?

That has everything to do with politics.

The executive branch’s job is to carry out and enforce the law, not to decide that it’s more politically convenient to do so two years from now. Not to force the Justice Department to defend an illegal measure in court out of political preference. Not to consign the American people to the deadly pollution and unlawful safeguards that are the consequence of that political decision.

In the aftermath of the smog fiasco, representatives for the smog lobby churned the blood in the water and called the capitulation a “big first step” toward more hoped-for regulatory reversals. Lobbyists boasted about their “frequent contact with White House Chief of Staff William Daley.”

The first Huffington Post article reporting the president's cave had nearly 13,600 comments shortly after midnight on the day of the announcement. While not all condemned the president, most did. This was his progressive base. But these were also everyday Americans expressing disbelief, anger and disgust.

Gene Karpinski, president of the League of Conservation Voters and executive director of the progressive U.S. Public Interest Research Group for twenty-one years, told me this after the debacle: “[i]n my 30 plus years of environmental work in D.C. I have worked with Democratic presidents for 15.5 years, and I think this was the worst decision ever made by one of them.”

My prior blog posts make clear I have applauded the Obama administration’s many clean air accomplishments (e.g., here, here, here and here). I will testify in Congress this week in defense of some of these accomplishments. The administration’s clean air agenda has been its greatest success story at EPA. It will remain so.

The president and Administrator Jackson were right to herald the powerful legacy of life-saving clean air standards that EPA has finalized and proposed for adoption. Every year these health protections will save tens of thousands of lives, avoid hundreds of thousands of asthma attacks, and prevent millions of days that people otherwise would miss work or school due to respiratory illness.

That very strong legacy is just one of the things that what makes the disgraceful smog decision all the more stupefying and bitter.

By blocking a stronger smog standard, first at 65 ppb and then at 70 ppb, the president and White House officials have allowed the following health hazards [pdf] to occur every year until that standard eventually is strengthened and enforced: 4,300 to 8,000 premature deaths; 2,200 to 3,800 nonfatal heart attacks; and 23,000 to 40,000 asthma attacks.

That’s a legacy too.