Published on Sunday, December 23, 2001 in the Baltimore Sun
Bush Expected to Weaken Portions of Clean Air Act
Issue Revisited Amid High Approval Rating
by David L. Greene
WASHINGTON - In a boon for the energy industry and a setback for environmentalists, the Bush administration is expected to announce soon that it is weakening portions of the Clean Air Act, allowing coal-burning power plants to bypass some anti-pollution rules.
President Bush has argued that some Clean Air Act rules stifle energy output and do little to protect the environment. That stance has angered environmentalists, but it was mostly forgotten after Sept. 11. Now, riding high on wartime approval ratings, Bush is revisiting some of his more hotly disputed proposals, including the idea of easing some environmental regulations.
At issue is a clause in the 1970 Clean Air Act that applies to aging power plants, oil refineries and other industrial facilities.
The clause exempts such plants built before 1970 from tough pollution curbs enacted that year.
But once they undergo a major renovation to expand output, such facilities must install pollution controls and begin meeting the 1970 standards.
Under President Clinton, the Environmental Protection Agency and several Eastern states, including Maryland, sued dozens of the nation's oldest and dirtiest power plants for violating the law.
They argued that the plants, mostly in the Midwest, underwent renovations yet never installed tighter pollution controls.
Pollutants from those plants, officials in Maryland and other states argue, blow east and contribute to smog in cities such as Washington, Baltimore and New York.
"These issues are a matter of life and death," said Connecticut Attorney General Richard Blumenthal.
Blumenthal asserted that the administration is trying to scale back parts of the Clean Air Act just when states are beginning to use it successfully to reduce pollution.
"These laws have been on the books for more than 30 years," Blumenthal said. "And the power companies have been violating them brazenly and blatantly, purposely and continuously."
In response to the lawsuits, the utility companies contend that the law should not apply because they underwent maintenance, not major renovations.
The companies also deny that they contribute to pollution in far-flung states. There is little scientific proof, they note, that pollutants can travel so far.
Industry officials argue further that the lawsuits filed by Clinton's EPA have made them wary of performing routine maintenance.
The administration's plan to ease what is known as the "new source review" clause of the Clean Air Act, the industry says, would not only help boost output but also cut emissions.
As regulations are eased, utilities could determine for themselves the most efficient ways to produce power.
"We'll be providing more electricity with the same amount of coal - or less coal," said Todd Terrell, a spokesman for Atlanta-based Southern Co., which owns a handful of power plants that were sued under Clinton. "Emissions on the whole will go down. So that, we believe, is the best environmental approach."
In May, as part of his energy initiative, Bush called for a study of the new source review clause. He said he worried that it forced power plants to invest in costly upgrades to comply with a bewildering environmental rule - and diverted money and attention away from producing electricity.
Administration officials have not said precisely what they will announce and when.
They say only that they are close to recommending changes to the Clean Air Act. But in an effort to defuse criticism pre-emptively, they stress that they have held public hearings to discuss proposals and have fully cooperated with Congress.
'Worst holiday presents'
Dave Ryan, an EPA spokesman, said the agency offered "unprecedented opportunities for public involvement" before reaching conclusions.
But environmental attorneys and congressional officials who have been briefed by the administration say the EPA has prepared new guidelines for how to enforce new source review.
"This is one of the worst holiday presents the administration could give the American people," said Rep. Henry A. Waxman, a California Democrat who is on the House Energy and Commerce Committee. "I hope they reconsider."
For several months, many of Bush's priorities have been put on hold.
But in recent weeks, the administration has begun lobbying anew for some agenda items that had sparked criticism earlier.
Bush recently announced that the United States was withdrawing from the 1972 Anti-Ballistic Missile Treaty with Russia in order to pursue a missile defense system. Now, the president appears on the verge of delving back into battles with environmentalists.
Bush officials say the timing of the announcement will be determined by when the EPA finishes its review, and not by the political atmosphere.
Still, Bush's chief political adviser, Karl Rove, speaking generally, acknowledged that Bush would begin leveraging his wartime popularity to advance other pieces of his agenda.
"The president understands that if we are successful in the prosecution of the war, that will create political capital," Rove said. "If you don't spend it, it's not like treasures stuck away in a storehouse someplace; it is perishable."
Officials familiar with the EPA's proposals say the agency is likely to make clear that maintenance work or relatively minor upgrades at power plants would not justify a lawsuit. Industry officials have been lobbying for such a guideline.
The EPA is also expected to recommend changes in how emissions from power plants are calculated.
Under the changes, the industry could more easily argue that a renovation did not result in more pollution.
Cap and trade approach
Bush has insisted that he is committed to protecting the environment.
He favors a "market-based" approach to pollution control and has said he wants to establish rigorous new limits on how much industrial pollution - sulfur dioxide, nitrogen oxides and mercury - can be released.
Utilities would choose on their own how to meet those standards. They would use a "cap and trade" system in which companies would be rewarded for reducing pollution or could pay for the right to pollute more.
Bush officials note that since 1980, a limited version of this system has cut emissions that contribute to acid rain by 35 percent.
Jeffrey Holmstead, a Bush appointee who serves as assistant administrator at the EPA, warned a congressional panel last month that forcing older plants to meet new source review standards "could undermine the benefits of the cap-and-trade approach."
Holmstead said "the current Clean Air Act has been enormously successful, but we can do better."
The utility industry heavily supported Bush's presidential campaign and has hired such heavyweight lobbyists as Haley Barbour, a former Republican national chairman, and C. Boyden Gray, who was a White House counsel under Bush's father.
'No substance left'
Environmental groups are mounting their own lobbying offensive, arguing that the package of changes being considered by the EPA would create enough loopholes to render new source review useless.
"This will be like taking a dollar bill and shooting 20 bullets through it," said Sandra Schubert, a lawyer with the environmental firm Earthjustice. "There will be no substance left."
Some lawmakers have complained that the EPA appeared on the verge of amending the Clean Air Act without consulting them.
Several senators, including James M. Jeffords, a Vermont independent, and Joseph I. Lieberman, a Connecticut Democrat, wrote to EPA Administrator Christine Todd Whitman, expressing concern about "rumored changes" to new source review "that might undermine its benefits."
They insisted that all documents involved in the review of the program be saved and sent to the Environment and Public Works Committee, which Jeffords chairs.
One congressional aide involved in environmental issues said some lawmakers are already discussing whether legislation could reverse whatever changes to the Clean Air Act are proposed.
The aide suggested that some of the proposals the EPA is considering might conflict with the intent of the 1970 law.
"And that's what congressional oversight is supposed to prevent from happening," the aide said.
Copyright © 2001, The Baltimore Sun