Clearing the Air

This morning a coalition of environmental and public health groups issued a report entitled Transition to Green, providing priority environmental recommendations for the Obama administration transition team.

I co-chaired the committee responsible for developing priority recommendations for EPA, and also chaired the sub-committee that developed the report's detailed air quality recommendations for EPA. These recommendations are accompanied by key administrative, legislative and budgetary policy actions and critical actions for the incoming administration to take in its first 100 days.

Here is the report's top-line air quality message:

There is an overriding need for the incoming Administration to make the cleanup of power plants its top air quality priority. Other high priorities include reversing the previous Administration's rejection of scientific consensus to define safe levels of smog and soot pollution in the air; its failure to monitor lead polluters; its creation of loopholes in rules supposed to protect against smog and soot pollution; and its failure to control air toxics.

And here are the five priority clean air administrative recommendations for EPA, along with some context for the first two issues explaining how the country finds itself in this sorry polluted state at the end of the Bush era.

1. Clean Up Power Plants
EPA should propose rules requiring SO2 and NOx reductions from power plants sufficient to deliver clean air to all Americans. EPA should also propose rules to achieve deep reductions in all hazardous air pollution including mercury from power plants.

    After eight years of the Bush administration, no significant EPA rules covering SO2, NOx or mercury emissions from power plants survived judicial challenge. A 2007 D.C. Circuit decision struck down EPA's "Clean Air Mercury Rule" and EPA's refusal to protectively control mercury and dozens of other hazardous air pollutants from power plants, after finding that EPA had squarely violated the plain language of the Clean Air Act. A 2008 D.C. Circuit decision overturned EPA's "Clean Air Interstate Rule" (CAIR), which had reduced SO2 and NOx from power plants in the eastern U.S. Again, the Court found that EPA had violated plain statutory language and also acted arbitrarily.

    EPA's highest air quality priorities in 2009 are clear: (1) EPA must propose a Federal Implementation Plan rulemaking to require much deeper and faster cuts in power plant SO2 and NOx emissions than CAIR had required, cuts sufficient to deliver attainment with ozone and PM2.5 air quality standards in the eastern half of the country; and (2) EPA must propose a Maximum Achievable Control Technology (MACT) standard covering all hazardous air pollutants from power plants, requiring cuts in mercury and other air toxics of 90% and greater.

    2. Reverse 11th Hour EPA Abuses
    EPA should immediately: (i) reverse three NSR rules allowing significant pollution increases from power plants, oil refineries and other facilities near national parks; (ii) withdraw the cert. petition in the New Jersey v. EPA case in the Supreme Court defending its harmful mercury rule; and (iii) strengthen and expand monitoring for lead pollution.

      By the end of the Bush administration, EPA is expected to issue three new source review (NSR) rules that will: (1) allow existing power plants to significantly increase harmful emissions of SO2, NOx, particulate matter, mercury and other air toxics, and global warming CO2 emissions; (2) weaken the special air quality safeguards that apply to power plants and other industrial polluters siting near national parks and wilderness areas; and (3) weaken air quality protections and cleanup obligations at all industrial facilities, especially those with multiple equipment like oil refineries, chemical plants and pharmaceutical facilities.

      I've written about the first rule here and Juliet Eilperin with the Washington Post recently addressed an internal EPA staff rebellion against the second rule here.  The third rule is no less important, but thus far has managed to avoid meaningful public scrutiny and is not expected to be signed until late December or January.

      Each of these three NSR rule changes will allow air pollution to increase and escape control, when current rules would control such increases. None of the three rules can be justified on air quality or public health grounds, and EPA's record for the proposed rules reveals the obvious: the rule changes will allow pollution levels to increase.

      In the New Jersey v. EPA case referenced above, the Bush administration somehow prevailed upon the Solicitor General's Office to petition for cert. following the D.C Circuit's vacatur of the Clean Air Mercury Rule and EPA's refusal to adopt protective standards for mercury and all other air toxics from power plants. EPA petitioned for cert. notwithstanding the agency's failure to persuade a single judge on the D.C. Circuit to rehear the decision by the original three-judge panel.

      It's time to put this case out of its misery, and long past time to require power plants to clean up their mercury and other toxic emissions to the maximum extent achievable - 18 years after Congress passed the law that gave EPA that authority.

      In 2005, Senator Obama co-sponsored a joint resolution to disapprove and overturn the EPA rule that pretended to "delist" power plants from protective Maximum Achievable Control Technology standards under the Clean Air Act -- the very rule that the D.C. Circuit overturned and that is now the subject of the pending EPA cert. petition to the Supreme Court.

      President Obama thus should support withdrawal of the Bush administration's cert. petition, and the incoming administration should make clear that EPA has no intention of avoiding the adoption of protective MACT standards controlling mercury and all hazardous air pollutants from the power sector.

      The final item under the reversal of 11th hour abuses -- strengthening and expanding monitoring for lead pollution -- is a topic that my colleague Gina Solomon has covered well here. This recommendation is necessitated by Bush White House interference with the lead monitoring that EPA wanted to require to protect the public.

      To round out the list of five priority clean air recommendations for the incoming administration, here are the remaining three. In a follow-up post, I will provide further context and explanation for these recommendations.

      3. Protect Against Smog, Soot Pollution
      EPA should (i) end litigation by agreeing to an immediate voluntary remand of recent ozone standards, and then revise them to comport with unanimous scientific advisory recommendations; and (ii) revise ozone and PM2.5 implementation rules to eliminate recent loopholes and require stronger measures to help states achieve clean air.

      4. Clean Up Dirty Diesel Engines
      EPA should propose a rule requiring heavy-duty diesel truck and bus engines to install the best available pollution controls whenever their engines are rebuilt. EPA also should take action to reduce diesel emissions from ships within 200 miles of any U.S. coast.

      5. Reduce Carcinogens, Other Toxic Pollution
      EPA should: (i) adopt protective cancer risk policies for all future hazardous air pollution rules, and revise recent rules that allow excessive cancer risk; (ii) reverse loopholes for toxic emissions from solid and hazardous waste incineration; and (iii) propose deep toxics reductions from industrial boilers.