Wednesday, June 01, 2005

Spring Smog Report, Nasty Fibs by Government Officials, and More

This is traditionally billed as a “slow” week in the nation’s capital (members of Congress are back home raising money, while many of the lobbyists are crowding the beaches), but we thought it might be worth a quick update on a few items of possible interest.

New Source Review update: Many of us have tried to forget this headache, but it’s going to be coming back into the news soon – maybe more than once – so get ready. Here’s a quick summary and crib sheet: New Source Review is a badly named part of the Clean Air Act that requires smokestack industries (electric power plants, refineries, etc.) to modernize their pollution controls when they make factory changes that could increase pollution. Most in industry HATE this requirement, and have been lobbying aggressively for years to weaken or get rid of it entirely.

The Bush administration has issued two sets of rules that would weaken the requirements. The first set of rules came out in 2002. Various state attorneys general and environmental groups sued. The case has been slowly grinding through the courts, but a decision is now expected at any time from the U.S. Court of Appeals for the D.C. Circuit. Opinions come out Tuesdays and Fridays at so keep your eye on that space! Look for New York v. EPA, D.C. Cir., No. 02-1387.

Separately, EPA is expected soon to issue a new decision on its second rule to ease the requirements. This 2003 rule would permit industry to ignore the requirements in many cases by claiming it was merely conducting “routine maintenance.” In 2004, EPA agreed to reconsider the rule – probably because the agency realized it had acted illegally and would lose court challenges by state attorneys general and environmental groups. The “reconsideration” decision is expected shortly. We expect that if EPA agrees to modify its 2003 rule change (so obviously illegal that it was frozen by the same federal court), it will still permit widespread industry exemptions.

Nasty Fibs Told by Government Officials: One of the reasons the Bush administration has lobbied so heavily for its “Clear Skies Initiative” is because it would have Congress repeal New Source Review, thus sparing the administration the embarrassment of losing in court. (The other big motivator – and basically for the same reason – is EPA’s blatantly illegal approach to mercury pollution.) In their zeal to persuade Congress, administration spokespeople told some whoppers last week at a House hearing on “clear skies” that the White House requested.

Whopper Number One: This from Jeffrey Holmstead, EPA’s Assistant Administrator for air pollution: “Today there is no commercially available mercury-specific pollution control technology” Well, maybe it depends on what Jeffrey meant by “commercially available,” but I would contrast his claim with what’s going on in the real world, where power companies are soliciting bids for companies trying to sell mercury pollution control equipment, some of them in response to state requirements. And companies are offering their products for sale! I suspect that most people would say that if something is for sale, it’s “commercially available.”

Whopper Number Two: From James Connaughton, head of the White House Council on Environmental Quality: “They’re lucky.” In response to a question about whether power companies that have already cleaned up their pollution would benefit under “clear skies.” Holmstead chimed in that the administration’s “heat input” approach to doling out pollution credits would “benefit” those companies. Actually, the exact opposite is true. The Bush administration would dole out most of the credits to the dirtiest coal-burning companies, while penalizing companies that had already made investments to clean up.

Whopper Number Three: From Holmstead, “What improves air quality is not necessarily deadlines.” (He was trying, badly, to explain why the “clear skies” legislation would delay the deadlines for cleaning up the air. The real reason: delaying the deadlines will permit industry to delay spending money on cleanup – and it will mean continued dirty air for the hapless breathers. In fact, deadlines have been a critical component of our national strategy to clean up the air.)

James and Jeffrey: Repent your evil ways. It’s not too late. Even Darth Vader eventually came around.

Spring Smog Report: Our volunteers have been keeping an eye on smog patterns during the Spring months. These are unofficial statistics, but we can report that, by the end of May, at least 20 states have already experienced smog levels worse than current national standards. These include Arizona, California, Texas, Oklahoma, Georgia, Kentucky, Louisiana, Ohio, North Carolina, South Carolina, Florida, Mississippi, Alabama, Tennessee, Michigan. Delaware, Massachusetts, New Jersey, Pennsylvania and Rhode Island. San Bernadino, California, has the dubious distinction of having the most dirty-air days so far – 13. Los Angeles and Houston have had the worst single-day smog levels. Let us know if you need other details.


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