September 26, 2023

Crafting a Real EPA

Twice in recent weeks, Maine and a dozen other states, plus several cities and environmental groups, have gone to court to compel the Environmental Protection Agency to regulate carbon dioxide emissions and to challenge changes in the Clean Air Act that allow plants to make major upgrades without installing pollution-control equipment.

In the first suit, filed earlier this month, the states are challenging the EPA’s assertion that it doesn’t have the authority to regulate the emission of carbon dioxide, a primary contributor to global warming. The agency says the Clean Air Act requires it to regulate pollutants that pose a threat to human health and that global warming does not meet the standard. This semantic hairsplitting is a reversal of early EPA policy recognizing the dangers of global warming.

More importantly, it is expensive, in both time and money, for states to resort to litigation to compel the EPA to do its job. The role of the EPA, as its name suggests, is to protect the environment. If it is not willing to do that, by not regulating carbon dioxide emissions or, as it recently decided, by allowing manufacturing and power plants to make major upgrades without the required accompanying improvements in pollution controls, court cases will not solve the problem. The alternative would be to create a new agency that is truly devoted to protecting the environment and health rather than corporate interests.

On the issue of power plant emissions, a report issued two weeks ago by the General Accounting Office, the investigative arm of Congress, warned that changes in the “new source review” program made in August could undermine current EPA enforcement actions against seven utilities resulting in large increases in harmful emissions. According to the former director of EPA’s Office of Regulatory Enforcement, if EPA got agreements with companies in the remaining seven pending enforcement cases against coal-fired utilities that are equivalent to the settlements it has achieved in the past, sulfur dioxide emissions could be cut by as much as 2.9 million tons annually and substantial reductions in nitrogen oxide emissions could also be achieved, the GAO reported.

However, since the Bush administration announced its intentions to change the new source review guidelines, companies have been less likely to negotiate with the EPA, the GAO found. According to a former EPA enforcement official, lawyers for some of the companies asked the agency why they should comply with the current interpretation of the law when the administration was trying to change it.

Similarly, the National Academy of Public Administration concluded in an April 2003 report that “the possibility that EPA would soon reform the NSR modification provisions favorably to industry may have led to [some] companies’ reluctance to settle their cases.”

Despite these warnings, the agency changed the rules and Maine and a dozen other states sued last week to block the rule change.

As Utah Gov. Michael Leavitt takes over the agency, he could start by making a commitment to improve, not weaken, regulations. He could do this by adding carbon dioxide to the agency’s list of pollutants and by repealing the new source review rule changes.

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