Surely You Must Be Joking

"Surely you must be joking."
 -- Ted Striker, Airplane

I knew the Bush administration's midnight environmental regulations were bad. Rushed, sloppy, deregulatory favors to polluters, illegal. All of that.

But my latest favorite falls into the "Surely you must be joking" category.

Just after midnight in the early morning hours of January 20th, 2009, approximately twelve hours before President Obama was sworn in as the 44th president of the United States, the Bush administration slipped into place a rule change that weakened a 25 year-old clean air safeguard.

The textbook midnight regulation, down to the literal occurrence at midnight before the Bush administration's last half-day in office.

The rule that the Bush Environmental Protection Agency made legally effective that day allows thousands of industrial polluters, factory farms, mines and others to increase harmful levels of smog, soot and toxic pollution -- all without meeting cleanup responsibilities that the law has long required.

How long? Since the first term of the Reagan administration. And the stronger safeguards were maintained throughout the remainder of Reagan II, George H.W. Bush I, Clinton I and II, and 2,922 days of the George W. Bush presidency. But not that critical half day on January 20th when the weaker rule became legally effective.

The final rule addresses the treatment of so-called "fugitive emissions" under the Clean Air Act's main permitting program, new source review. EPA defines "fugitive emissions" as "emissions that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening." Examples of fugitive emissions include windblown dust from surface mines and volatile organic compounds emitted from leaking pipes and fittings at petroleum refineries.

What the Bush rule did was reverse 25 years of EPA and state practice that required fugitive emissions to be counted when an industrial facility or other polluter undertakes a change that increases emissions -- what are known under the law as facility "modifications." 

As far as Clean Air Act definitions go, the modification definition is pretty straightforward: "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source...."

Pollution increases that qualify as modifications demand cleanup, including the full offset of those pollution increases in some circumstances. But if fugitive emissions are ignored -- not counted toward determining whether a modification has occurred -- then it's less likely that any cleanup will occur. And certainly the totality of fugitive emission increases will not be controlled.

There was no suggestion by the Bush EPA that fugitive emissions are any less harmful than stack emissions; for good reason, since these fugitive emissions are the same regulated air pollutants -- soot and smog pollutants, for example -- that are regulated from smokestacks.

And the Bush rule acknowledged quite forthrightly that every administration since the Reagan administration had read the Clean Air Act's "modification" definition to require control of fugitive emissions for two simple reasons. To quote EPA concerning this statutory definition: (1) "Congress intended to establish no qualitative distinction between stack and fugitive emissions" when counting those emissions toward modification status, which would require cleanup of those emissions; and (2) the Clean Air Act "defines modification solely in terms of the total amount of pollution that a change at a source would produce."

Both conclusions flow naturally from the modification definition in the statute. So what did the Bush administration have to say about this provision?

Here's another one of those "surely you must be joking" moments. The Bush administration did not bother to explain its midnight rule's contradiction of this statutory definition. Or reversal of 25 years of consistent legal interpretation of that definition. In fact the record for the rule did not address the statutory definition at all.

Basic legal principles require an agency at least to explain its reversal of prior statutory interpretations. The Bush EPA's response on that score? Nada.

Basic legal principles also require an agency to respond to important adverse comments by the public. State, local and tribal air quality officials objected loudly to the Bush rule, noting that it contradicted plain statutory language and 25 years of consistent EPA interpretation of the law. The Bush EPA's response? Nada.

Basic legal principles further require an agency to explain how its rule is consistent with controlling statutory language. The Bush EPA's explanation of the controlling statutory definition? Nada.

Instead the Bush administration pointed to an altogether different statutory provision that did not define modifications or even mention them, and certainly did not exempt fugitive emissions from being counted toward modifications. The details are too dreary, but rest assured that after reading the explanation you would say . . . wait for it, wait for it . . . "Surely you must be joking."

But here's my favorite "surely you must be joking" feature of the final Bush rule. The preamble to the rule pretends to find support for the rule in legislative history to the Clean Air Act Amendments of 1977 -- that is, industry testimony opposing the regulation of fugitive emissions.  The preamble cites the testimony of clean air champions (read sarcasm) Bethlehem Steel and the American Iron and Steel Institute. EPA's preamble then concludes this astonishing discussion with the following wry citation: "But see EPA written responses to Committee questions (for some industries, fugitive [emissions] control can be critical to attainment of standards)." The hapless EPA staffer responsible for inventing the supposedly supportive legislative history, i.e., industry testimony, must have gotten a chuckle out of that. At least that person had the decency to note that EPA's contemporaneous testimony contradicted the industry complaints.

No less incredible, the Bush administration weakened its longstanding approach to fugitive emissions in this final rule in response to an industry petition that even the Bush administration found to be groundless. The Newmont Mining Corporation petitioned EPA in 2003 to exempt fugitive emissions from being counted for modification cleanups, proffering two grounds. Yet even the final Bush rule explains that EPA "disagree[s] with the petition on the two counts summarized."

So in response to an industry petition filed in 2003 that the Bush administration openly disagreed with, on the very last day of the Bush administration's eight-year tenure, EPA weakened 25 years of consistent and more protective clean air safeguards with a rule that could not even manage to discuss -- much less explain -- the controlling legal requirement in the Clean Air Act.

It is painfully clear that the Bush administration failed to provide any reading of the key statutory provision -- much less a coherent reading -- because the administration's final rule thoroughly contradicts the Clean Air Act and they couldn't think of any way around that.

So the former administration decided that the best course was to ignore the law, not even attempt a lawful statutory interpretation, and not even bother to respond to public comments or try to explain EPA's reversal of a 25-year legal interpretation.

"Surely you can't be serious," you say.

I am serious. And don't call me Shirley.

NRDC has filed a lawsuit in federal court to overturn the Bush administration's dirty air rule, and has simultaneously asked EPA Administrator Lisa Jackson to reconsider, halt and reverse the rule.