Clean Air Victory
March 21, 2006
Frank O'Donnell is president of Clean Air Watch , a 501(c)3 nonpartisan, nonprofit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.
Last Friday a three-judge federal appeals court panel—including one of the most controversial of the Bush judicial appointees—unanimously gunned down an attempt by Cheney to blow holes through a federal pollution law and reward prominent corporate political supporters.
Most of the subsequent news coverage has focused less on the forest than on the trees. It was noted only that environmentalists were cheering because the court invalidated a jargon-laden Environmental Protection Agency rule that would have permitted coal-burning electric plants to evade requirements that they clean up pollution.
Politically attuned audiences might find it a little more interesting to step back and look at the forest—in this case, the defeat for Cheney—and the victory for good government and the rule of law.
The substantive issue here involves an enforcement provision of the Clean Air Act that was little used until the late 1990s. It was then that New York Attorney General Eliot Spitzer and the Clinton EPA started suing big-polluting electric power companies that had upgraded old facilities without installing modern pollution controls as they should have.
The electric-industry power brokers almost immediately began plotting how they could use a future Bush administration to stop the cleanup push. Indeed, some industry executives met secretly at a Detroit hotel in April 2000 to polish their pitch to what they hoped would be a more favorable Bush regime.
The secret Cheney energy task force, announced only days into the new administration, provided the perfect conduit. And the political wiring couldn’t have been better for the dirty-air crowd.
Among those who met in secret with Cheney, his top aide, or then-Energy Secretary Spencer Abraham or his deputy: Tom Kuhn, head of the Edison Electric Institute, former Bush college roommate and “pioneer” fundraiser, and Haley Barbour, then a lobbyist Southern Company, one of the most prominent companies sued by the Clinton EPA.
Barbour went on to become a founder of a power industry group, the National Electric Reliability Coordinating Council, whose specific purpose was to kill the cleanup rules. Other prominent founders of that group included former Bush 1 Counsel C. Boyden Gray, and Mark Racicot, former Montana governor and chairman of the Republican National Committee.
Sure enough, Cheney was soon personally saying it was time to “reform” or eliminate the rules that had prompted the Clinton lawsuits.
Former EPA Administrator Christie Whitman gave a hint of some of the political dynamics in her book, It’s My Party, Too.
She reported that Cheney himself was "particularly eager" to tackle the pollution issue. “He called me on several occasions, even tracking me down when I was on vacation in Colorado, to press his view,” she noted.
Whitman responded by sending Cheney a confidential memo warning that “we will pay a terrible political price if we undercut or walk away from the [Clinton/Spitzer] enforcement cases.”
The Cheney task force ended up directing EPA to examine program “reform.” To accommodate Whitman’s concern for appearances, the Bush administration tried to pretend it would still enforce the law as interpreted by Clinton while the “reform” went on. In fact, enforcement ground to a halt.
After holding her nose and officially proposing the enforcement-killing rules that Cheney had demanded, Whitman later resigned to “spend more time with my family” before it was time to make the Cheney-sought rule changes final.
"I must say I'm glad that they weren't able to finish the work until after I was home in New Jersey,” Whitman wrote in her book. After Whitman left, EPA did roll over and make the Cheney-sought “reform” official. That would take the EPA boot off the Republican campaign contributors’ neck—or so Cheney thought.
The wheels of justice turn slowly, however, delays benefiting polluters with every leisurely turn. In this case, nearly three years of non-enforcement went by until the panel of the U.S. Court of Appeals for the D.C. Circuit ruled March 17 that the Cheney-sought plan was flatly illegal.
"Only in a Humpty-Dumpty world," said the court, could the law be read as the Bush administration wanted. It added that the Bush administration couldn’t simply ignore a law it didn’t like.
Interestingly, one of the judges who signed the unanimous opinion was Janice Rogers Brown, a Bush appointee whose confirmation to the appeals court initially had been delayed by Senate Democrats because they believed she was an extreme anti-environmental zealot.
Unlike the vice president, Brown thinks the law should be obeyed. Count Brown and her colleagues’ respect for the law as a public-interest victory to be savored.