Demise of the Clean Air Interstate Rule (Part 3): EPA's "Clear Skies" Straitjacket

And now the story can be told of the Bush administration's 8 year long agenda for air pollution from power plants.

Once upon a time, to be exact in the year 2000, then-Governor Bush ran for the office of the Presidency on a campaign pledge to develop strong legislation reducing harmful emissions of SO2, NOx, mercury and CO2 from power plants.  After abandoning the CO2 element of that campaign promise in early 2001, the new Administration developed a strong “straw” proposal covering the other three pollutants.  Following outcries from certain elements of the utility sector and the industry’s trade association, the Administration abandoned the EPA straw proposal and ending up introducing its Clear Skies legislation in February 2003.  The eventual bill introduced before the Senate Environment and Public Works Committee, the “Clear Skies Act of 2005”, S.131, failed to be reported out of Committee following an unsuccessful vote in March 2005.

Declining to advance the Administration’s Clear Skies legislation to the Senate floor was the right thing to do in 2005 and would be the right thing to do were that bill re-introduced in Congress today.

As I noted in my testimony opposing the Clear Skies bill before the Senate Environment and Public Works Committee in February 2005, the Clear Skies legislation delayed by a decade or more the day when millions of Americans would have air quality that meets public health standards.  Current law requires delivery of clean air by 2009 for smog and 2010 for soot pollution.  The Administration’s bill allowed those deadlines to be pushed back to 2022 – and it systematically undermined the tools available to states and EPA to achieve even that lax deadline.

Following the Senate Committee vote in March 2005 that failed to report the Clear Skies legislation to the Senate floor, the Bush Administration set about to carry out the central features of its Clear Skies legislation -- for good and for ill – through a series of EPA regulations under the current Clean Air Act.  On the productive side, the EPA’s Administrator Johnson signed the Clean Air Interstate Rule the very next day after the Senate Committee vote on the Clear Skies bill – making clear how intertwined the two efforts were. 

CAIR, of course, established emissions caps for SO2 and NOx emissions from power plants, corresponding roughly to the reductions achieved from power plants in the eastern U.S. under the Clear Skies bill.  CAIR also accelerated the phase II compliance deadline and caps for SO2 and NOx under Clear Skies from 2018 to 2015.

However, EPA has since that time simultaneously carried out a systematically destructive agenda to manipulate, constrain and weaken Clean Air Act requirements to ensure that the law would not demand greater and earlier emissions reductions from power plants than the administration was prepared to impose in CAIR and, before that, Clear Skies. 

For the past five years, EPA has placed the Clean Air Act on the proverbial Procrustean bed from Greek mythology – cutting off statutory authorities that went too far for the liking of the Administration and the utility industry, while  stretching other statutory provisions on the rack of tortured legal interpretations, all to ensure that the current Clean Air Act conformed to the Clear Skies political agenda that the Administration had been unable to persuade Congress to adopt.  

The more apt metaphor for the Administration’s Clear Skies political agenda, however, may be that of a straitjacket.  This is because the Clean Air Act contains ample legal authority to demand deeper, faster and more effective emissions reductions from power plants than the Administration was willing to impose. 

Thus, the Administration needed to, and repeatedly has, placed the Clean Air Act and EPA in a policy and legal straitjacket to ensure that the agency – and states, as it turned out – would not impose greater obligations upon the utility sector through regulatory authorities than the Administration had been willing to impose in the failed Clear Skies legislative proposal.

The Administration's Clear Skies straitjacket agenda was a central feature of the Clean Air Interstate Rule -- and as it turns out the court decision vacating that rule.

Midway through the court's CAIR opinion, the court repeats the Clean Air Act obligation requiring states to include adequate provisions in their state air plans "prohibiting emissions ‘within the State from . . . contribut[ing] significantly’ to downwind nonattainment.” The court then puzzles over the fundamental question of how EPA arrived at CAIR’s SO2 emissions reduction levels -- corresponding to the rule's two important emissions caps -- that supposedly dealt with those significant contributions from upwind states:

Apart from the arbitrary Title IV baseline, EPA has insufficiently explained how it arrived at the 50% and 65% reduction figures. Though unclear, these numbers appear to represent what EPA thought would be “‘a cost-effective and equitable governmental approach to attainment with the NAAQS for [PM2.5].’”

Immediately after this sentence, the court drops a footnote that contains surely the most insightful, revealing, yet understated use of the word "coincidentally" in a decision by the D.C. Circuit.  In this footnote, the court stumbles upon an awareness of the Administration's Clear Skies straitjacket agenda, realizing that CAIR’s SO2 caps were plucked not from thin air but from Clear Skies:

EPA briefly summarized a series of analyses and dialogues with various stakeholder groups in which the participants considered “regional and national strategies to reduce interstate transport of SO2 and NOx.” See CAIR, 70 Fed. Reg. at 25,199. The most recent of these, EPA’s analysis in support of the proposed Clear Skies Act, considered nationwide SO2 caps of, coincidentally, “50 percent and 67 percent from . . . title IV cap levels.” Id.

The court's use of the word "coincidentally" here signals an impressive understanding of a dirty little secret that Clean Air Act practitioners have known for the past five years: the Bush Administration worked backwards from its Clear Skies legislative proposal to institute the emissions caps and design features of CAIR, rather than working forward from the Clean Air Act to achieve the emissions reductions necessary to address transported pollution at the levels and according to the schedules consistent with Clean Air Act obligations to downwind states.

In my 2005 Senate testimony opposing the Clear Skies bill, I described a speech that the power industry’s top air pollution lobbyist in Washington delivered to a coal industry group in April 2001.  Unbeknownst to him, his talk was being transcribed, and later would be posted online.

The power lobbyist told his coal industry audience that EPA had been planning to use the agency’s existing authority under the Clean Air Act to require large and prompt reductions in air pollution from coal-burning power plants.  However, he told them, the lobbyist and his allies in the White House had a plan: the Administration would introduce legislation creating a weaker, slower program – one that would allow coal plants to emit more pollution for much longer than EPA had been planning to require under the Clean Air Act.  The lobbyist promised that the weaker, slower cleanup requirements in the new legislation would be something “that we can all live with and that someone else can’t undo.”

The legislation that the power lobbyist proudly described in April 2001 was introduced in 2003 as the Administration’s “Clear Skies” proposal.  And the Clear Skies straitjacket agenda that EPA has carried out and promises to carry out until the Administration’s last days, continues to reflect that understanding reached between the White House and utility industry lobbyists in the very first months of the Administration’s first term.  

As we confront the end of eight years in which the Bush Administration devoted its priorities to what the utility industry desired or could "live with," we are left with little good, and must all live with the aftermath of the Administration's grim bargain.