The Two Faces of Steve

“This is a true story.”
  -- Opening line in 1957’s film, The Three Faces of Eve.

Administrator Steve Johnson's Environmental Protection Agency has a split personality. And obsessive compulsive disorder probably should be added to that diagnosis too.

The root cause -- or is it the symptom? -- is the Clean Air Act's "new source review" program. On one hand, Mr. Johnson's EPA justifiably celebrates the historic $4.6 billion Clean Air Act enforcement settlement with American Electric Power over the company's violations of new source review requirements. On the other hand, Mr. Johnson has personally signed an EPA rulemaking proposal that would actually legalize future harmful violations of the same type and magnitude committed by AEP and other utility company defendants over the past 2-3 decades. Just last month EPA announced its intention to adopt this irresponsible rule in early 2008 -- the Bush administration's parting gift to the utility industry.

An editorial in today's New York Times captures this hypocrisy nicely. The editorial observes correctly that the proposed rulemaking changes pushed by the administration “would have made it almost impossible to bring the case against A.E.P. in the first place, much less win it.”

Not only would this rule legalize the very same destructive polluting activities committed by the utility defendants in EPA's long-running Clean Air Act enforcement cases. The Bush administration’s mere decision to propose this rulemaking precipitated a change in EPA enforcement policy that effectively has made the disastrous rule proposal the law of the land today. As the Washington Post detailed last week in the second half of this article, the prevailing air pollution enforcement policy of the Bush EPA treats the proposed rule – rather than the much stronger law still on the books -- as the law of the land when enforcing new source review against coal-fired power plants. In other words, the Bush administration is mounting new enforcement cases only against coal-fired power plant owners that violate the grossly weaker proposed rules that have been announced but not adopted, allowing illegal air pollution by utilities to escape prosecution as if the more protective law they violated never existed.

As reason for the enforcement reversal – rather than the real reason -- the memo offers the farcical explanation that the agency will refocus its resources on other areas likely to produce significant environmental benefits. This despite the fact that EPA’s Clean Air Act enforcement efforts never have and never will reduce as much air pollution as the new source review enforcement cases against coal-fired power plants.

I became suspicious as soon as I saw that this enforcement policy memo was signed by EPA’s politically-appointed Deputy Administrator hailing from the White House, Marcus Peacock, rather than the political appointee heading EPA’s enforcement office, Granta Nakayama. After all, the memo reflects a radical change in EPA enforcement policy governing the most successful agency enforcement endeavors under this administration, and by all rights should have been issued by EPA’s enforcement chief. Then my suspicions were confirmed by several EPA sources, who related that Mr. Nakayama – a man of considerable integrity -- had refused to sign the memo himself, due to its harmful effects on the agency’s enforcement powers and prerogatives. So Mr. Peacock -- Mr. Johnson’ second-in-command – did the dirty deed.

At about the same time EPA adopted this sweeping but little-noticed change in enforcement policy in October 2005, a damning memo authored by the civil servant head of EPA’s air enforcement division leaked out of the agency (not by its author). This memo details the harmful impacts the proposed rule would have on EPA’s ongoing enforcement efforts against coal-fired power plants. It concludes that it would be "better ... to not tinker with the [new source review] test at all," because the proposed rule would be "fatal" to the agency's ongoing enforcement cases, contrary to congressional intent in enacting the relevant Clean Air Act provisions, "inconsistent with ... D.C. Circuit" court decisions interpreting those provisions, and "effectively unenforceable" due to the lack of "record keeping and reporting requirements."

So why is the Bush administration rushing to finalize a politicized, indefensibly damaging rule that drastically weakens the law and rewards electric utility companies -- at the expense of air quality, the environment, and the health of the American people? Why have political forces within the administration pursued a relentless campaign to sabotage the new source review enforcement cases against power plants, over the objections of dedicated professional staff at EPA and the Department of Justice? 

Electric utility companies stand to save hundreds of millions if not billions of dollars by avoiding liability for past and ongoing air pollution violations, and by avoiding future costly pollution controls. According to the Center for Responsive Politics, these utility companies and their trade association contributed millions of dollars to the President’s election and re-election campaigns in 2000 and 2004, respectively. As the soldier’s character played by Vince Edwards in The Three Faces of Eve put it: “When I spend 8 bucks on a dame, I don't just go home with the morning paper, y'know what I mean?”