FOULING THE AIR

Any doubts that the Bush administration was working harder to protect the energy industry rather than the environment should have been laid to rest by a lengthy expos? published in last Sunday’s New York Times Magazine. By focusing on “new source review,” the now eviscerated portion of the Clean Air Act that required power companies to install pollution-control equipment when they made improvements to their plants, the paper chronicled how the administration disregarded advice of experts within the Environmental Protection Agency and went ahead with changes to the law suggested by the electric industry.

After finding that coal-burning utility companies were routinely ignoring the law that required the installation of emissions control technology for work other than routine maintenance, the EPA decided to take action. “This was the most significant noncompliance pattern EPA had ever found,” Sylvia Lowrance, EPA’s top enforcement and compliance official from 1996 to 2002, told the newspaper. “It was the environmental equivalent of the tobacco litigation.”

But it all evaporated after the Bush administration took office, even though the agency was close to reaching settlement agreements with several of the seven companies the EPA initially prosecuted. The companies stopped working with the EPA on enforcement actions and turned their attention to the president’s Energy Task Force, headed by Vice President Dick Cheney.

When the group’s draft report was released in April 2001, the EPA immediately responded that its premise – that environmental regulation had hampered domestic energy production – was wrong. “Costs of compliance with environmental regulations are overstated … and [the plan] improperly implicates environmental programs as a major cause of supply constraints. Such a conclusion, in our opinion is overly simplistic and not supported by the facts,” Tom Gibson, an associate administrator appointed by Bush, wrote in a memo to the Energy Department, according to The Times. Another EPA official said the draft report “contains only comments by industry and ignores the comments of all other stakeholders.”

The administration pushed ahead and released a final energy policy in May 2001, replacing the Clean Air Act, including new source review with a pollution trading system, which would allow 50 percent more sulfur dioxide, 40 percent more nitrogen oxides and three times as much mercury as the old law required, if it were enforced.

Now all that remained was determining how much work could be done on a plant without it qualifying as an upgrade. Ms. Lowrance had people in her office study years’ worth of data from actual power plants and recommended that 0.75 percent was a reasonable figure, meaning a $1 billion facility could spend $7.5 million a year on repair and maintenance without triggering the requirement to install pollution controls.

Two days before Labor Day weekend, the acting EPA administrator (by then former New Jersey Gov. Christine Todd Whitman had resigned as the agency’s chief) announced that the administration had finalized its rule on routine maintenance and would allow a plant to spend 20 percent of its replacement cost without installing emissions equipment.

The new rules are now on hold because a federal appeals court halted their implementation while a case brought by 14 states, including Maine, makes its way through the judicial system.

As battles rage in Washington over mercury emissions, fuel efficiency and military compliance with environmental laws, new source review provides a cautionary tale. It also reiterates the critical role Maine’s senators continue to play in trying to ensure business interests don’t trump environmental protection.

Sens. Olympia Snowe and Susan Collins, for example, fought to obtain analyses showing that competing measures would achieve greater pollution gains more quickly than the president’s Clear Skies Initiative. They also remain opposed to efforts to weaken mercury emissions rules. Clearly, they have their work cut out for them.