Friday, April 22, 2005

President Bush cancels visit to park with dirty air; promotes plan for continued dirty air

President Bush canceled a visit to the Great Smoky Mountains National Park today because of bad weather. He was scheduled to visit it as part of an Earth Day photo event.

The park has had unhealthful levels of smog several days this week, according to the U.S. EPA.

At the same time, the Bush administration is backing a dirty-air provision of the energy bill, which the House of Representatives passed yesterday. (See below.)

That bad-air provision could mean delays in meeting clean-air standards for smog in states from Georgia to the East Coast.

This provision was backed by coal burning power companies and other big polluters. It was a pet project of the chairman of the House Energy and Commerce Committee, Rep. Joe Barton (R-TX), who wants to delay cleanup requirements in the Dallas-Fort Worth area. This provision, which would weaken the Clean Air Act, doesn't even belong in the energy bill; it has nothing to do with energy independence and would not reduce foreign oil imports.

A bi-partisan group of lawmakers had drafted an amendment to remove the bad-air provision from the bill (see below), but the House Rules Committee -- in an amazing decision -- would not even permit a vote on the measure.

The Smog Extension Must Go
Dear Colleague,
The attached article from Saturday's New York Times describes a dramatic change to the 1990 Clean Air Act Amendments buried in the Energy Policy Act. Section 1443 would enable industrial polluters to postpone smog cleanup in - for starters - Dallas-Ft. Worth, Houston-Galveston, Atlanta, Milwaukee, Detroit, Cleveland, and the entire area stretching from Washington, DC to Southern Connecticut. The delay would leave the millions of Americans living in those areas, as well as many millions more living downwind, breathing unsafe amounts of smog for as much as a decade beyond the cleanup deadlines in the current Clean Air Act.
We hope you will support the Johnson-Allen-Shays amendment to strike this smog extension provision from the Energy Bill. Smog - technically called ground-level ozone -triggers asthma attacks in children, sends the elderly to emergency rooms, and forces outdoor workers off the job. Using Environmental Protection Agency numbers, a modeling expert commissioned by Clear the Air projected that the dirty air extension provision in the Energy Bill would, between 2005 and 2016, allow big polluters to cause well over one million more asthma attacks, and well over one-and-a-half million more missed school days, than the existing Clean Air Act would allow.
EPA recently issued the Clean Air Interstate Rule to address smog in the eastern United States. Extending deadlines will undermine the local efforts upon which the Clean Air Interstate Rule depends. Please join us in supporting healthy air, a strong Clean Air Act, and fewer cases of asthma.

S/ S/ S/
Tom Allen Eddie Bernice Johnson Chris Shays
Member of Congress Member of Congress Member of Congress
April 16, 2005
Change to the Clean Air Act Is Built Into New Energy Bill

ASHINGTON, April 15 - Deep in the energy bill that was approved by a House committee this week, under a section titled "Miscellaneous," is a brief provision that could have major consequences for communities struggling to clean up their dirty air.
If it becomes law, it would make one of the most significant changes to the Clean Air Act in 15 years, allowing communities whose air pollution comes from hundreds of miles away to delay meeting national air quality standards until their offending neighbors clean up their own air.
The provision could especially affect states like New York, which has some of the nation's dirtiest air, and other Northeastern states that have always had difficulty meeting federal standards for ozone, a leading cause of smog, because much of any state's pollution originates in states to the south and west.
Under the new provision, the "downwind" states would not be required to meet clean air standards until the "upwind" states that were contributing to the problem had done so. Currently, states can get more time but only if they agree to added cleanup measures.
Proponents of the measure in Congress, as well as a spectrum of industry groups, say that the change would give state and local governments the flexibility and discretion they urgently need to deal with air pollution from distant sources. Otherwise, they would have to impose much stricter limits on pollution from local sources, including power plants, factories and automobiles.
But House members who fought against the measure, and other opponents, say flexibility and discretion are just other words for delay, saving money for industry and posing risks for millions of people living where the air does not meet health-based standards.
Opponents also say that the new provision would undermine a muscular rule announced last month by the Environmental Protection Agency, the Clean Air Interstate Rule, which sets new power-plant emissions for three major pollutants for the eastern half of the United States. One of those pollutants, nitrogen oxide, is cooked by sunlight into ozone, or smog.
Representative Joe L. Barton, Republican of Texas, chairman of the House Energy and Commerce Committee and author of the provision, added the same provision to the House energy bill in 2003 when House and Senate leaders began negotiations on a final bill. The effort failed over other issues, and it remains unclear whether the provision would remain in a final bill this time.
Mr. Barton said in an interview it was not his intent to weaken the Clean Air Act, which sets national pollution standards, nor to undermine the interstate rule, which addresses windblown issues by requiring states to meet the same emission standards for power plants as an aid to reducing overall emissions.
Rather, he said, he wanted to restore the E.P.A.'s ability to grant extensions to areas that could demonstrate that they could not control their own pollution - a right the agency assumed it had, and acted on, during the Clinton administration until three federal courts ruled that such discretion violated the Clean Air Act.
"I'm trying to make the law more implementable, more common sense," said Mr. Barton, who represents a district south of Dallas. "I live in the real world, where it's a lot tougher to meet arbitrary standards in an area that's growing and where more people are driving cars and trucks."
"Even my adversaries would admit that I'm not trying to abolish standards or gut the Clean Air Act," he added. "I'm just trying to find a more realistic solution to a real-world situation."
It is a solution that has been warmly embraced by the National Association of Manufacturers, the Electric Reliability Coordinating Council and other trade groups. "We're clearly in support of any kind of flexibility," said Bryan Brendle, an official with the manufacturers organization.
But Mr. Barton's adversaries argue that his approach poses unintended consequences, including an invitation for local communities that have not met air quality standards to use the extra time to put off reducing emissions from sources inside their own borders. They say Mr. Barton's provision could delay improvements by 10 years as one area waits for another, which waits for another - a prospect that Mr. Barton disputed.
"Bottom line, no longer will there be any incentive for states or municipalities to clean up more air pollution, and the E.P.A. has no ability to force them to do it," said Representative Tom Allen, a Maine Democrat whose motion to kill the Barton provision failed by a 29-to-19 committee vote, largely along party lines.
Mr. Allen said that tougher air quality standards announced by the environmental agency since the failure of the 2003 energy bill and the new interstate rule made Mr. Barton's provision unnecessary and "would lead to a lot more asthma than is needed."
John Millett, an E.P.A. spokesman, said the agency had taken no position on Mr. Barton's provision, but a high-ranking agency official, who spoke on the condition of anonymity because he was not authorized to speak for the agency, said "a real debate" was under way among agency officials about its potential effectiveness and its effect on the Clean Air Act.
Mr. Millett said: "Some people think it's a good idea. Most don't."

EPA endorses Barton's ozone deadline provision
Darren Samuelsohn, E&E Daily senior reporter
The U.S. EPA supports a provision tucked into the House energy bill that would give large metropolitan areas the ability to achieve federal air quality standards for ozone pollution on an extended time frame without facing a slate of existing requirements, the agency's top air pollution chief said yesterday.
In an interview for E&ETV's OnPoint, EPA air chief Jeff Holmstead said the agency backs the Clean Air Act language in Energy and Commerce Committee Chairman Joe Barton's (R-Texas) energy bill because it would codify an interpretation of the law the Clinton administration started pursuing in 1994.
Under the Barton energy bill, areas that do not meet EPA's current 8-hour ozone standard, as well as its old 1-hour requirement, would receive an extension of their compliance deadlines if they can show their primary emission problems come from an upwind industrial source. Exempted areas under this "bump up" provision could also avoid stringent New Source Review permitting requirements, use of reformulated gasoline and having federal transportation projects tied to a state's ability to successfully cut air pollution.
The language is so controversial that Sen. Jim Jeffords (I-Vt.) would consider filibustering the entire energy bill if the provision makes it all the way to a House-Senate energy conference, his office said yesterday. Critics of the Barton language, including Jeffords, say it would be one of the most dramatic changes to the Clean Air Act in 15 years, causing a domino effect that could cause 10-year delays in emission cleanups across the country.
But Holmstead rejected those claims, arguing that he does not envision every nonattainment area across the country to seek such an extension.
"It really is designed to reflect the fact that we need to strike the right balance between upwind controls and local controls of air pollution," Holmstead said. "I think some people have mischaracterized it as a 10-year delay. That's really not what it is. The idea is these areas would still be required to come into attainment as expeditiously as practicable. Those are the words of the statute."
Unconvinced by this position, Reps. Eddie Bernice Johnson (D-Texas), Tom Allen (D-Maine) and Christopher Shays (R-Conn.) tried last night to gain House floor time for an amendment that would strip the language from the energy bill. But the House Rules Committee ruled against the amendment, effectively ending the debate for the House bill.
Last week, Allen tried to remove the Barton provision during an Energy and Commerce Committee markup on the energy bill. His amendment was defeated, 19-29.
Debate over the "bump up" issue is far from new. EPA in 1994, and then again in 1998, established the extension policy for several areas trying to comply with what was then the agency's 1-hour standard for ground-level ozone pollution. The cities of Beaumont, Texas; Washington, D.C.; Springfield, Mass.; Atlanta; and St. Louis were all allotted additional time under the policy.
But environmentalists viewed the Clinton plan as a delaying tactic and sued the individual decisions in various federal court circuits. They won three of the cases, setting enough precedent that EPA backed off its policy elsewhere. The courts essentially ruled that EPA did not have sufficient statutory authority under the Clean Air Act to give the extensions.
Reacting to the court rulings, Barton included the provision in the 2003 version of the energy bill. During that debate, Barton argued that a flexible implementation plan would ensure no undue burdens on local businesses. He also said the areas were unable to meet the EPA's 1-hour ozone standard because of upwind emission sources that counteract any locally driven pollution-reduction gains. Barton specifically pointed to pollution blown north from Houston as reason for Dallas' problems reaching compliance with the 1979-era pollution requirements (E&E Daily, Oct. 17, 2003).
House Democrats tried in 2003 to remove the Barton provision, but their only avenue ended up being a floor debate on a nonbinding motion to instruct House and Senate energy bill conferees. That vote was denied, 182-232. A House Democratic aide tracking the current debate said yesterday that had another vote been taken this week, proponents of the amendment would have mustered a similar number of supporters.
This time around, critics have added several additional arguments to their arsenal, including the fact that the language would also apply to some 470 counties that EPA last summer ruled were not in compliance with its new and more stringent 8-hour ozone requirements.
In an effort to bolster their case, Johnson and her allies yesterday circulated a "Dear Colleague" letter arguing that the Barton provision would give additional time for cleanup to a number of large metro areas. Among the cities mentioned as possible candidates for an extension from the 8-hour ozone requirements were Dallas-Fort Worth, Houston-Galveston, Atlanta, Milwaukee, Detroit, Cleveland, and the entire area stretching from Washington, D.C., to southern Connecticut.
"The delay would leave the millions of Americans living in those areas, as well as many millions more living downwind, breathing unsafe amounts of smog, for as much as a decade beyond the cleanup deadlines in the current Clean Air Act," the lawmakers said.
Opponents of the Barton language also argue that the provision would undermine a new EPA regulation to control power plant emissions of sulfur dioxide and nitrogen oxide in the East, also known as the Clean Air Interstate Rule. While CAIR will force electric utilities to control emissions that cross state borders, local communities still need reductions from their nearby industries to ensure meeting their federal deadlines.
Holmstead rejected the argument that CAIR would be undermined by the Barton language. CAIR is a final rule, he explained, with modeling that shows dramatic difference in lowering the number of ozone nonattainment areas to less than a dozen Northeastern locales where vehicle traffic and other emission sources continue to cause problems. "In no way can it undo that," he said. "The answer to that is just clearly no."


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