The Clean Energy Bill Is No Place For Dirty Energy Attacks on Public Health

There is much to commend in Senator Kerry’s and Senator Lieberman’s just-released comprehensive clean energy and climate legislation, beginning with solid core carbon pollution limits. These emission limits tighten every year and will drive investments in clean energy that create jobs, cut pollution, and end our addiction to oil from dangerous locations, both offshore and overseas.  

Then there’s a nasty provision that will do none of those things.

The draft legislation creates a roving commission that gives power plant polluter lobbyists a platform to make unsupported claims about supposed conflicts between protecting health and cutting carbon pollution.  

Specifically, the draft bill establishes a highly objectionable task force to examine utility industry calls for exemptions from federal environmental laws and regulations that utilities allege are impeding power plant retirements or transitions to cleaner energy. The provision’s language is suffused with utility industry complaints and rhetoric and pleas for payment, making clear the design for a biased exercise. Polluter lobbyists deliver a deregulatory wish list to Congress and federal agencies. The agencies then are authorized by this bill to propose regulatory changes to carry out those wishes.

Instead of leaving EPA to do its job to protect the American people, the draft bill would compel EPA and states and public health supporters to spend huge amounts of time fending off industry wish lists to weaken virtually every regulation that affects power plants.

The scope of the provision is so broad that it anoints this commission with the power to go after every health and environmental safeguard that has been adopted through decades of effort – from Clean Air Act protections against smog, soot and toxic pollution to the Clean Water Act to hazardous waste laws to the Endangered Species Act.

But the real target of utility industry fire is the Clean Air Act: current and upcoming EPA rules to cut deadly soot pollution, smog pollution, and toxic air pollution like mercury, arsenic and lead.

Power plant air pollution is responsible for an estimated 20,000-24,000 deaths annually. Each year this pollution is linked to tens of thousands of non-fatal heart attacks, hundreds of thousands of asthma attacks and other cardiac problems, and tens of thousands of emergency room visits, hospitalizations and lost work days.

More than half of coal-burning power plants today lack basic cleanup equipment called scrubbers that control deadly soot pollution, sulfur dioxide pollution and toxic air pollution like mercury and acid gases. As recently as 2006, only one-third of coal plants had these scrubbers.

But there have been nearly 90 scrubbers installed at power plants in just the last two years without causing any electricity reliability problems. And since 2006, dangerous sulfur dioxide emissions from power plants have dropped by a very impressive 3.5 million tons to just under 6 million tons each year, with 1.7 million tons cut in the past two years alone. During that period smog-forming nitrogen oxide emissions from power plants dropped from 3.5 million tons to nearly 2 million tons annually.

Upcoming EPA rules to cut smog, soot and toxic air pollution will require many more scrubbers, cutting power plant pollution by millions of tons more and saving many thousands of lives. Recent experience has shown that we can clean up these plants, protect public health and safety, provide affordable electricity, and power our transition to a clean energy economy.

These life-saving clean air rules are what the utility industry is targeting with this commission and its roving industry agenda. 

The draft bill calls out by name three clean air programs for special attack and consideration for “exemption[s].” Not coincidentally, these safeguards long have been targeted by power sector lobbyists:

(1) New source review: a Clean Air Act permitting program for smog, soot and carbon pollution that power plant operators have violated for the past three decades. These violations prompted successful enforcement cases by the Clinton, Bush and Obama administrations, joined by state attorneys general, and generated many billions of dollars in injunctive relief requiring pollution control equipment. When I worked on these cases in the New York attorney general’s office, we saw how valuable this clean air law was to control dirty coal-burning power plants and just how much these plants endangered our health. The Bush administration tried repealing these new source review safeguards in its ultimately unsuccessful “Clear Skies” legislation, and now utility lobbyists are trying a new tactic to seek to weaken or eliminate these protections.

It’s worth emphasizing that the draft bill’s invited attack on the new source review program is a reach well beyond the idea of eliminating best available control technology for greenhouse gases. It’s an attack on applying best available control technology to other health-endangering pollutants, like sulfur dioxide and nitrogen oxides, that the Clean Air Act has covered for decades.

(2) New source performance standards: this clean air program establishes national performance standards for power plant pollution like smog and soot. EPA is expected to update these standards and propose standards for power plants’ carbon pollution next year.

(3) Air toxics standards: this clean air program establishes national performance standards for toxic air pollution like mercury, arsenic, lead, acid gases and heavy metals. Power plants have escaped meeting these standards for nearly two decades while other industries did their part and complied. During that period the Bush administration stalled the utility industry’s obligation for eight years by adopting thoroughly illegal rules that were struck down after NRDC and other environmental groups joined New York, New Jersey and other states to challenge the rules in court. EPA now must propose these crucially important standards next spring and finalize them next fall, some 21 years after these standards first were authorized in the 1990 Clean Air Act.

These important clean air rules finally will require many power plants to install cleanup equipment like scrubbers that they have escaped for decades due to violations of the law, or illegal delays and exemptions undertaken by EPA. Dirty power plants will need effective pollution controls by no later than 2015, but utility lobbyists argue that they should be allowed to escape those cleanup obligations if they were just given more time to shut down instead.

The draft legislation leaves an ominous blank for when any future shutdown date might be, but power plant lobbyists have been pushing for 2020 or 2025 or even later. Of course they don't want to clean up their toxic or smog or soot pollution during the period between now and 2020 or 2025 or later. Or if they did agree to better controls it would only be at the margins since they do not wish to install meaningful controls like scrubbers.

As a nation we have suffered the deadly consequences of this dangerous shell game for the past three decades. When the 1977 amendments to the Clean Air Act were adopted, dirty, decades-old power plants were grandfathered from strong cleanup requirements due in part to the prospect held out by the utility industry that waves of plants would shut down soon and it was not necessary to require them to incur the capital costs to clean up.

History has proven that prospect to be a fraud. The dirty old coal plants did not shut down and they did not clean up. Instead they continued to evade cleanup by going so far as to break the law themselves, then persuading the prior administration to break the law on their behalf.

There is a surefire way to cut all of this dangerous air pollution – smog, soot, toxins, carbon pollution – and that is to shutter these dirty old coal plants and replace them with cleaner resources. The American public should not be asked to offer their children's health as a bribe to shut these dirty plants. Congress should just set a schedule for these plants to clean up or shut down. But that schedule must not be one that allows these plants’ air pollution to continue sickening or even killing people, nor one that delays or weakens vitally important health safeguards.

Our friends at the American Lung Association have rightly noted that “[p]rovisions in this draft bill create an irresponsible process to roll back tools every community needs to protect its most vulnerable residents – children, seniors and those with chronic diseases – against dangerous air pollution.”  The Association urges that these unnecessary and objectionable provisions be stripped from the bill.

We agree.

Clean energy legislation is the last place we need more damage from dirty energy.