Senators Dan Coats (R-IN) and Joe Manchin (D-WV) have introduced a bill called the Fair Compliance Act of 2011 that blocks and delays clean air safeguards against smog, soot, mercury and other toxic air pollution from power plants that burn coal and oil. These delays will mean up to 73,360 lives lost, at a minimum, compared to the lives saved by the Cross-State Air Pollution Rule and Mercury and Air Toxics Standards for power plants that the legislation targets.
Here is an analysis of the key features of this harmful and irresponsible bill.
Section 3 – Delays compliance with Mercury and Air Toxics Standards for power plants by at least 2 years, so that the compliance period is extended from 3 years to at least 5. However, this section sets the stage for indefinite delay since the bill requires that the EPA administrator shall provide an extension period "of not less than an additional 2 years" beyond the Clean Air Act's 3-year compliance period. (emphasis added). Because current law already allows a 1-year compliance extension if necessary for the installation of controls, the Coats-Manchin bill would turn a 4-year compliance period into the possibility of a minimum 6-year compliance period, with the bill allowing indefinite delay.
The Mercury and Air Toxics Standards are projected to save up to 17,000 lives every year [pdf], so the bill's minimum 2 years of delay would mean up to 34,000 additional lives lost, at a minimum, as a result of just section 3 of the legislation.
Section 4 – Delays compliance with the Cross-State Air Pollution Rule (CSAPR) [pdf], safeguards that significantly cut power plants' smog and soot pollution in the eastern half of the United States.
The legislation would stay the effectiveness of the already finalized CSAPR no later than thirty days after the date the bill becomes law. Then, no later than 6 months after the bill is enacted, the EPA administrator must undertake a new rulemaking to revise CSAPR to:
- allow states to develop and submit state implementation plans (SIPs) to implement CSAPR. This likely would mean at least three additional years of delay, due to current statutory requirements and timelines governing SIP development and approvals, with additional rounds of notice and comment rulemaking at the state and federal levels.
- extend compliance deadlines to require emissions reductions under a newly-revised CSAPR "not earlier than"
Phase 1: January 1, 2015 (as compared to the current CSAPR date of January 1, 2012). This is at least a 3-year extension of phase 1 compliance.
Phase 2: January 1, 2017 (as compared to the CSAPR date of January 1, 2014). This is at least a 3-year extension of phase 2 compliance.
This section effectively delays CSAPR by at least six years. The state implementation plan (SIP) development and submission process alone can take years. For most measures, the Clean Air Act gives states three years from the date a revised standard is adopted to suggest plans to EPA. See, e.g. Clean Air Act §110(a). These timelines are oftentimes delayed and extended in the real world. This would mean under the Coats-Manchin bill that states likely would take until at least the spring of 2015 to submit SIPs, which would have the effect of pushing back compliance deadlines even later than the Senators' press release erroneously advertises.
The actual legislative text means that the January 1, 2015 and January 1, 2017 dates above are entirely non-binding, unenforceable non-deadlines; the bill says that no emissions reductions may be required "earlier than" those dates, but pointedly fails to say emissions reductions could not be delayed until later than those dates.
For these reasons, the press release accompanying the bill's release engages in serious false advertising with the following claims: The Manchin-Coats bill would postpone Phase I until January 1, 2015 and Phase II of CSAPR until January 1, 2017. The compliance date is the date by which a utility either must have installed emissions controls or retired the pant (sic)." And as explained further below, the "must have installed emissions controls or retired" language is equally false, due to a fundamental loophole in section 5.
The current CSAPR, in contrast to the Coats-Manchin bill, anticipates the drawn out SIP process and employs a Federal Implementation Plan to streamline compliance, maintain the progress begun by the Bush administration's Clean Air Interstate Rule (CAIR), and respond more expeditiously to the D.C. Circuit's ruling that CAIR was unlawful. [pdf]
The adverse pollution and health impacts caused by section 4 of the legislation are startling and enormous. Even by leaving CAIR in place instead of CSAPR, the legislation would allow 1.5 million more tons of sulfur dioxide emissions in 2012 and 1.6 million more tons of sulfur dioxide emissions in 2014 than CSAPR would allow.
EPA estimates that CSAPR will save up to 34,000 lives every year [pdf] – primarily by reducing the deadly particluate matter associated with sulfur dioxide emissions. Assuming that the Coats-Manchin bill delays CSAPR by six years and the weaker CAIR remains in place, the bill’s delay would mean up to 6,560 premature deaths per year for every 1.5 million additional tons of sulfur dioxide emissions. This is based on blocking the health benefits from the greater emissions reductions that CSAPR achieves beyond CAIR. For the 6 year delay that the legislation imposes, this would mean more than 39,360 lives lost as a result of delaying implementation of CSAPR.
The economic costs of this delay have been estimated to be as high as $49.3 billion dollars in 2012 alone, with that cost incurred for each of the additional six years of delay. The total: nearly $300 billion dollars in additional costs that the Coats-Manchin bill would impose upon the American people in health care costs and avoidable health hazards.
Section 5 – This section strips EPA of the authority to protect public health and enforce the Clean Air Act, by handing over to the North American Electric Reliability Corporation (NERC), regional electric organizations and utility companies the legal right to unilaterally sanction utility companies’ noncompliance with the cross-state rule and mercury and air toxics standards.
The bill provides that power plant operators and NERC shall develop “implementation plans” to meet the requirements and delayed deadlines for the cross-state rule and mercury and air toxics standards. However, the bill then provides that power plant operators and NERC may make “any revision” to the schedules in these plans “that may be necessary to ensure the reliability and adequacy of the bulk electric system," as recommended by NERC.
This confers open-ended, unprecedented authority on these non-environmental entities to circumvent compliance with the Clean Air Act and public health protections in an unconstrained fashion. A final implementation plan could delay compliance or retirements by 2 or 5 or 10 years or, indeed, indefinitely. The final plans could waive compliance with toxic emission limits or authorize indefinite operation of completely uncontrolled power plants. The bill hands over to utility companies and these outside organizations total permission to circumvent these clean air safeguards.
All of this is accomplished without any requirement for public transparency, public comment or input, or public notice and comment rulemaking; indeed, utility companies, NERC and these local organizations are not government agencies or lawmaking bodies, yet they are given the authority to alter and ignore federal standards that themselves were the product of public notice and comment rulemaking by EPA. The bill renders those EPA public rulemakings and administrative law a sham.
Incredibly, the bill then provides that the Department of Energy, not EPA, “shall publish and submit to the [EPA] Administrator the final implementation plan," as agreed to by the power plant operators, NERC and regional organizations. The bill provides no role for EPA to ensure that the Clean Air Act is enforced and public health and air quality are protected by these implementation plans. EPA is merely given the negotiated implementation plans as a done deal and provided annual reports thereafter. Indeed, the bill does not even allow DOE to disagree for any reason with the plans settled on by the power plant operators and outside organizations, instead mandating that DOE “shall publish” such implementation plans.
Finally, adding insult to injury, at any time power plant owners are given the right to request permission to evade the agreed-upon schedule for cleaning up or retiring dirty power plant equipment. How so? Owners "may submit to the [EPA] Administrator and the [DOE] Secretary a request for a modification of the schedule contained in the implementation plan," and then . . . wait for it . . . a delayed scheduled will be reviewed and approved by . . . wait for it . . . NERC and the regional organizations given authority to approve and modify the plans originally!
EPA remains cut out of this process, with power plant owners, NERC and the regional organizations deciding how to evade the earlier Clean Air Act "compliance" schedules. The bill's provision that owners submit "requests" for those schedule delays to EPA and DOE ends up being nothing more than a cynical legislative sleight of hand with no legal meaning whatsoever.
In light of all this, the bill’s co-sponsors are seriously misrepresenting its consequences. A press release accompanying the legislation says “[t]his proposal does not reduce existing authority under the Clean Air Act, nor does it relax the standards under any existing or proposed Clean Air Act regulations.” Senator Manchin said this about his bill: "It's no delay at all." (subscription required). Those claims are demonstrably false.
There is no precedent under the Clean Air Act or any other environmental law, to our knowledge, in which federal law hands over to private corporations and organizations like NERC the ability and authority to circumvent federal safeguards without regard to public health, air quality, or the very purposes of that federal law. Nowhere in this bill must utility companies, NERC, the local organizations or even DOE give any weight to Americans’ health, air quality, ecosystems, national parks and wildlife, or any values protected by the Clean Air Act. EPA is cut out of the process altogether and stripped of authority to enforce the Clean Air Act.
The bill preserves no role even for courts to review or adjudicate the legality of these implementation plans or any revisions to them by the corporate-organizational collaborations, for the simple reason that such plans and modifications displace Clean Air Act schedules and the four corners of those plans become a self-contained law outside the influence of the courts or EPA. The legislation provides no role for judges because there is no law to judge, since lawmaking and compliance obligations have been handed over to the utility corporation-electric organization alliance.
The Coats-Manchin bill follows the same script as extreme air pollution legislation originating in the House, the TRAIN Act, with both bills sacrificing tens of thousands of American lives every year by further delaying long-overdue health safeguards against smog, soot, mercury and other toxic air pollution.
As publications such as Environmental & Energy Daily have quickly recognized (subscription required), the Coats-Manchin bill also institutes the compliance delays embodied in controversial legislation authored earlier this year by the American Electric Power Company, one of the nation's most polluting with dirty plants in Indiana, West Virginia and elsewhere. It comes as little surrprise, then, that AEP is feverishly lobbying for the bill since it gives a competitive advantage to the company's dirty fleet compared to other companies that have installed controls and/or are prepared to do so on time.
No legislation that sides so squarely with one of America's worst polluters over Americans' health and clean energy has any business becoming law.