Wednesday, October 20, 2010

The smog of war: long-time clean air foe C. Boyden Gray attacks EPA yet again!

Those of you who have followed clean-air matters for awhile may not find this surprising. But for those of you who have joined this saga relatively recently, this might be worth noting.

Long-time clean air opponent C. Boyden Gray has opened fire on EPA’s upcoming new ozone standard. Gray’s salvo came in a commentary published in the Washington Times newspaper.

His commentary mirrors what is becoming pretty typical anti-EPA Republican political rhetoric, which asserts that cleaning up the air will increase unemployment. (Actually, numerous studies have found that clean-air standards lead to job creation, particularly in the pollution control and related industries.) The commentary includes a lot of other nonsense which I am happy to discuss, if you want.

I think it is fair to put Gray’s commentary in some context, especially for those of you who are less familiar with his past. I will present just a few highlights. There is much more, of course.

Gray, heir to the Reynolds tobacco fortune, has held numerous government jobs under Republican governments, including as counsel to the first President Bush and more recently as U.S. Ambassador to the European Union.

But it’s his involvement in fighting against clean air controls that catches our eye.

During the Reagan presidency, Gray staffed a “regulatory relief” panel that, among other things, tried to stop the phase out of lead in gasoline. Eventually, the phase out continued after an uproar.

During the first Bush Presidency, Gray and his protégé and assistant, Jeffrey Holmstead (who went on to become head of EPA’s air pollution division during the second Bush presidency and who crafted numerous industry-friendly approaches that were tossed out by the courts) interfered in EPA attempts to carry out the Clean Air Act, as they tried to “interpret” the rules in ways more favorable to industry. As Gray told the New York Times,

"What happens after the passage of legislation is often more important that what happens during enactment," said C. Boyden Gray, the White House counsel. "We are engaged now in a lot of knockdown fights over the Clean Air Act, where Congress left discretion to the agency."

During the Clinton era, when the EPA sought to set tougher national clean-air standards for smog and soot, Gray was the chief tactician of an industry coalition which sought to block the agency.

Gray was also chairman of Citizens for a Sound Economy, an industry-funded anti-government rabble-rousing outfit which claimed that EPA planned to ban barbeques and Fourth of July fireworks. These were all phony assertions.

After EPA went ahead and adopted tougher standards, Gray dreamed up a legal trick aimed at subverting the standards. He argued that EPA had violated the so-called “nondelegation” doctrine – a fancy way of saying EPA had reached too far in setting the clean-air standards.

A federal appeals court agreed with him, but the U.S. Supreme Court unanimously rejected his argument.

But Gray managed to set the cause for clean air back several years in the process and made a lot of money for a lot of lawyers.,_Inc.

And now, EPA is moving again to update national smog standards. And, once again, C. Boyden Gray is on the attack. Keep you eye out for more of the same baloney rhetoric. Will he be on Hannity next? And please let us know if you want a reality check.

What else is Gray doing these days?

Well, he is on the board of directors of the so-called FreedomWorks, an anti-government group which is an offshoot of Gray’s earlier Citizens for a Sound Economy and helps the so-called Tea Party.

FreedomWorks, of course, has been very active opposing both legislation and EPA rules aimed at limiting climate change emissions:

Gray also is “founding partner” of the Gray & Schmitz law firm, which is registered to lobby for the U.S. Chamber of Commerce, which, as you know, has been an aggressive opponent of EPA clean air requirements.

Gray has also lobbied on behalf of Constellation Energy on the House and Senate climate bills.(Funny – I thought Constellation was in favor of federal climate legislation because it thought that would boost the value of nuclear energy. I assume Gray was tasked with rounding up Republican supporters. If so, he didn’t do very well, did he?)

Gray’s firm is also registered to lobby on behalf of the Nuclear Energy Institute.

Gray is also a prominent “Federalist Society” member and is scheduled to speak next month at what looks to be the equivalent of a Tea Party rally by dull gray men in dull gray suits. Sorry for the pun:

Tuesday, October 19, 2010

Diesel pollution in perspective: why we haven't solved the problem

The US EPA is holding a dog-and-pony show this morning with diesel engine interests to tout the new generation of cleaner diesel trucks and buses.

And, as someone who has worked on this issue for quite a number of years, I have to say the cleanup of new diesel engines has been a stunning accomplishment. Not that many years ago, “they said it couldn’t be done.”

This landmark accomplishment happened only after major battles against the oil industry, which for years resisted making cleaner diesel fuel needed to operate the new trucks and buses. It’s little surprise that no one from the oil industry is scheduled to speak at this event.

So let’s applaud the cleaner trucks coming off the assembly line. Over time, thousands of lives will be saved and everyone will breathe easier.

But let’s take a second to put this into perspective. Because diesel engines are so durable, the majority of trucks on the road continue to spew out toxic fumes. Indeed, literally millions of dirty diesel engines remain on the road.

We need to do much more to clean them up.

A near term opportunity is the reauthorization of the Diesel Emissions Reduction Act which provides funds for clean-up to all states. We hope the Congress will get moving on this bipartisan plan after the election fireworks.

Wednesday, October 13, 2010

An October Surprise! EPA to bless high-fructose gasoline... but what about clean air?

I guess this isn’t really the classic “October Surprise,” though the timing certainly appears to be political.

It is no secret at this point that the US EPA is expected this afternoon to announce it plans to allow higher levels of ethanol in gasoline used in newer cars.

The corn lobby has been pushing this idea for many months and this decision appears to be a concession to corn-state politics. As we all know, the Party in Power has been under fire in many such states for alleged environmental zealotry.

But will high-fructose gasoline really be good for clean air? And what could this mean for consumers?

The EPA apparently will note is has reviewed various test results and concluded that increasing the amount of ethanol in gasoline from 10% to 15% will not harm vehicles made since 2007. (EPA will defer a related request to permit E15 in older vehicles.)

My sources tell me there could be real concerns and possible pollution increases. As I have been informed, the US Department of Energy (not exactly an unbiased source since its mission is partly to promote “alternative” energy) conducted tests on a relatively small number of newer vehicles, and the test was basically designed in such a way as to show that more ethanol would be no problem. I am further told that, despite the test design, some of the vehicles did exhibit emission increases. As you may know, one well-known earlier study of higher ethanol blends showed more pollution and damage to catalytic converters over time.

An even greater concern with this EPA decision involves so-called “misfueling” (use of the high-fructose gasoline in other engines).

This could lead to even more air pollution. EPA is expected to accompany today’s announcement with proposed labeling requirements aimed to preventing misfueling. As I write this, the White House Office of Management and Budget web site reports that it is still reviewing the EPA labeling proposal:

RIN: 2060-AQ17

TITLE: Regulation To Prevent the Misfueling of Vehicles and Engines With Gasoline Containing Greater Than Ten Volume Percent Ethanol and Modifications to the Reformulated and Conventional Gasoline Programs

STAGE: Proposed Rule

RECEIVED DATE: 09/14/2010


There is real reason to be concerned that high-fructose gasoline will be used in the wrong engines – especially if the high-fructose variety ends up being somewhat cheaper at the pump because of ethanol subsidies. Some of us so recall that back in the 1970s and 80s, many people kept using cheaper leaded gasoline in cars designed for unleaded. That caused the destruction of catalytic converters and more pollution.

In a bi-partisan July 29 letter sent to EPA by the key chairmen and top Republicans on the House Energy and Commerce Committee, the law makers reminded EPA of this unfortunate experience:

Assuming that EPA has authority to grant a partial waiver, EPA should have a well-thought-out and well-executed plan for avoiding misfueling. Without appropriate safeguards, a partial approval could pose major problems for consumers with vehicles or engines that are not compatible with E 15. Based on the experience with the transition from leaded to unleaded gasoline, a significant amount of accidental or intentional misfueling would be likely. If such misfueling led to operability or durability problems, or increased repair costs, a significant number of consumers could be adversely affected.

Numerous groups – including the American Lung Association, state air pollution regulators and engine makers -- have also warned about misfueling.

Monday, October 04, 2010

Around the horn: climate double crossers, friends of coal waste, Smog Watch 2010 survey, and more...

“Clean Coal,” part one: As I am sure you know, one of the biggest raging regulatory battles of the past several years involves what to do about coal waste. (You may recall the Kingston catastrophe, which has been forgotten in some places because of more recent fossil fuel catastrophes.) You may also recall that the White House Office of Management and Budget – following a seemingly endless series of pitches by coal interests, see at -- squeezed the EPA to propose basically a do-nothing rule alongside the agency’s original plan of treating this stuff as hazardous waste.

The issue is out of the headlines, but the lobbying continues unabated. We have obtained a very interesting draft letter, reprinted below, signed by the coal-friendly governors of Arkansas and Alaska, who, coincidentally, happen to be the chair and vice chair of the National Governors Association Natural Resources Committee. These govs, who have circulated the letter to other committee members with an eye towards submitting this as the governors’ official position to EPA, declare that “coal combustion residuals” (a euphemism for “toxic sludge”) are very beneficial. Regulating it would cost jobs, make global warming worse (didn’t know they care about that issue!), blah-blah, blah. Well, read it for yourself below if you want.

This is another classic example of how special interests work behind the scenes to undermine federal health and safety protections. In this case, they are using governors as their tools.


“Clean Coal,” part two: A reader points out to us the latest double-talk from one of America’s great proponents of “clean coal: -- that would be Mike Morris, head of American Electric Power Company. It turns out that AEP has declared that EPA’s proposed deadlines for its proposed interstate “transport” rule are “unrealistic.”

The comments came only two days after Morris noted the Ohio-based company would probably comply with the proposal on time “without any hardware.” So we are supposed to believe the Morris opposes the deadlines because they would hurt his competitors? AEP stockholders, are you paying attention?


Double-dealers: Morris, of course, was a “player” in the failed Senate negotiations over climate. And, on that topic, the New Yorker magazine has published a fascinating article which seeks to explain why climate legislation died in the Senate. You can read the whole piece here Politico’s Morning Energy report has some good highlights today.

Much of the article reflects the perspective of some arrogant Capitol Hill staffers. (How arrogant, you ask? They somehow did not seem embarrassed to admit that they planned to double-cross Republican Senator Susan Collins once they had secured her vote for the so-called Kerry-Graham-Lieberman bill.) The aides basically try to blame the White House for the debacle, singling out Chicago Mayoral candidate Rahm Emanuel and F-word spouting presidential adviser David Axelrod (who knew?) for particular scorn. Let’s see how long it takes for the arrogant aides to become lobbyists as the DC revolving door turns….

Smog Watch 2010: Our Clean Air Watch volunteers have continued their great work of assembling the only real-time national snapshot of smog in America. And here are the results this year, through October 1. We have discovered that a total of 40 states plus the District of Columbia have experienced unhealthful levels of ozone, or smog this year, compared to 37 states plus DC last year. (These totals understate the full extent of the smog problem, because we have only counted days with bad-air levels above 75 parts per billion, the standard set by the Bush EPA. That standard will in all probability be made tougher by the current EPA in the near future.) Altogether there were 3,912 times that official air pollution monitors recorded bad ozone levels, compared to 3,161 in 2009. The good news is that these are lower levels than seen in previous years, despite record smog-producing heat waves this summer. Make no mistake: we are making progress, but we need to do more to clean up the air. (Including a tougher crackdown on coal-burning emissions that blow across state lines – tougher than the version panned by Morris above.)



September xx, 2010

The Honorable Lisa P. Jackson


Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

RE: Hazardous Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640

Dear Administrator Jackson:

On behalf of the nation’s governors, we write regarding the Environmental Protection Agency’s (EPA) June 21, 2010 proposed rule to federally regulate coal combustion residuals (CCRs). Governors continue to believe that EPA was correct in its 2000 regulatory determination that concluded regulation of CCRs under Subtitle C was unwarranted. Governors urge EPA to adopt the Subtitle D option of the co-proposal as this approach is fully protective of human health and the environment, is not unduly harmful to our state’s economies, ensures continued beneficial use of the materials and respects the historic and appropriate state-federal relationship with respect to waste management.

Waste Management

Governors understand the need to ensure that CCRs are properly managed and are confident in the ability of their states to effectively regulate this waste. To begin, states have found that through their extensive experience testing CCRs for hazardous materials, rarely, if ever, do CCRs fail the standard EPA test by which materials are determined to be hazardous waste. Moreover, given that the 136 million tons of CCRs produced each year represents one of the largest waste streams in our country, a hazardous waste definition under Subtitle C would increase by 67 fold the amount of hazardous waste disposed of each year. This level of hazardous waste would rapidly consume existing Subtitle C disposal capacity necessitating the need for additional disposal sites. However, siting new Subtitle C facilities is an often drawn out and controversial process that states have not conducted for decades and can take years to complete.

State Programs

Since both Subtitle C and Subtitle D options presented in the proposed rule are almost identical with respect to their requirements for design and operating criteria of CCR disposal facilities, artificially classifying CCRs as hazardous will needlessly impair the ability of states to operate effective programs that utilize a broad range of management options for CCRs, draw away precious state resources from the management of truly hazardous materials, and will not produce a greater degree of environmental protection. EPA should recognize that states already have the tools at their disposal to effectively manage CCRs under Subtitle D. In fact, the vast majority of states in which CCRs are generated already require state permits for CCR disposal facilities and many states already voluntarily impose minimum performance standards consistent with Subtitle D requirements. Moreover, there is no reason for EPA to assume that with the establishment of federal minimum standards under Subtitle D, states will not work to conform their programs.

Furthermore, if EPA opts to designate CCRs as hazardous waste under Subtitle C, this shift would swamp state Subtitle C programs, which are already strapped for funds due to federal underfunding of these mandated programs. At a time when states are instituting dramatic budget cuts and furloughing and laying off staff, it would be imprudent to impose the most costly remedy proposed by EPA, Subtitle C, when the Subtitle D option achieves substantially similar results at far less cost.

Beneficial Reuse

Governors are concerned about the serious consequences subtitle C designation could have on the beneficial use of this waste. Over 45% of the 136 million tons of CCRs produced each year are recycled into products like shingles, concrete and wallboard. However, having a material used in these products designated as hazardous under RCRA would create a stigma with consumers. Further, ___ states ban the beneficial reuse of hazardous materials (will add number once updated data is available). Therefore, with the stigma and various state limitations, subjecting CCRs to a hazardous waste definition would expand the use of virgin materials; increase the amount of CCRs diverted to disposal; eliminate jobs in industries that beneficially reuse CCRs; increase energy prices; increase Greenhouse Gas Emissions by one ton for every ton of fly ash not recycled, and drive up the cost of vital state infrastructure projects through increases in the price of concrete.

In summary, governors urge EPA to adopt its Subtitle D proposal since it fully protects human health and the environment without the adverse consequences entailed in Subtitle C regulation on state resources, disposal capacity, jobs, beneficial use, and the ability of states to operate effective regulatory programs that are reflective of on-the-ground realities.

Thank you for your consideration of this important matter. We look forward to working with you.


Governor Mike Beebe

Chair, Natural Resources Committee
Governor Sean Parnell

Vice Chair, Natural Resources Committee

Friday, October 01, 2010

Eight govs endorse 60 mpg gas standard by 2025

Federal efforts to set tougher fuel economy and greenhouse gas standards for cars received a real boost this morning as eight governors endorsed a 60 mpg fuel economy standard for cars by 2025. (Their call came in a letter from the governors of New York, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania and Washington. We understand that New York Governor David Paterson’s people originated this letter.)

As you may know, the US EPA and Transportation Departments today are expected to announce plans to move ahead with tougher fuel economy standards for 2017-2025 model year cars, though the actual level of the standards has yet to be determined.

These governors are urging the Obama administration to act boldly to cut greenhouse gas emissions and reduce our demand for oil. (Their position is aligned with those of environmental groups, but, frankly, I think this position carries more weight when coming from governors.) The governors also support a related effort to reduce greenhouse gases from heavy trucks.

So let’s give a real round of applause to these forward-thinking governors. While Congress has basically imploded on the energy issue, the governors may give the Obama administration a much-needed jumpstart to make real progress.