Extreme Dirty Air Amendments Launch Pollution Warfare on Americans' Health, Abolish Right to Clean Air

The TRAIN Act (H.R. 2401 [pdf]) and the amendments that will be voted on this week on the floor of the House of Representatives have degenerated into the most dangerous attacks on clean air since the Clean Air Act was signed into law 40 years ago by President Nixon. TRAIN already was the most irresponsible dirty air legislation ever to be brought to the House floor. But two Republican amendments to the bill quietly introduced last night contain far more extreme attacks on health protections that take us into reckless territory never before seen in Congress.

The underlying TRAIN Act would block EPA standards to clean up smog, soot, mercury, dioxins, and other toxic air pollution from power plants, then allow those safeguards to be delayed indefinitely. The bill would cost a minimum of 34,000 lives, with indefinite delay allowing over 25,000 additional deaths every year.

However, in a sneak attack that assaults the very heart of the Clean Air Act, two amendments were just released that would fundamentally eviscerate two of the law's most vital health programs. One amendment would repeal clean air protections that will save over 130,000 lives and avoid over 1 million asthma attacks. The second would eliminate Americans' 40-year right to clean air and replace it with a process that will lie to us about the safety of the air we breathe.

The amendments will be considered this week along with the underlying bill, which is expected to come up for a vote on the House floor as soon as Friday, September 23rd.

Latta Amendment Abolishes 40-Year Right to Clean Air, Lies to Americans About Unhealthy Air

An amendment [pdf] filed by Rep. Bob Latta (R-OH) eliminates the forty year-old requirement that EPA base clean air standards on health science and medicine alone in determining whether the air is safe to breathe. Instead, the amendment directs EPA to define healthy air based equally on the “feasibility and cost” to polluting industries, which would compel EPA to accept air quality standards that do not protect public health. The amendment robs Americans of their fundamental right to clean air, promised by the Clean Air Act since its adoption in 1970. Instead, EPA would be forced to set unprotective air quality standards for smog and soot and lead pollution that are at odds with health science, based on cost complaints by polluting industries.

This is like an insurance company prohibiting your doctor from telling you whether you have cancer, if a company bean counter thinks the cost of treatment is too high. Instead, the doctor would be ordered to lie to you, tell you you're not sick, and send you home.

It's like Congress ordering the Food & Drug Administration to allow unsafe infant formula or medicine, overriding doctors and scientists, if some economists decide it's too "burdensome" on industry to provide safe products. While the government and industry lie to us about the safety of those products.

As I've written before, the very foundation to the Clean Air Act requires air quality standards to be founded on science and the best medical understanding of air pollution's health hazards. Economic considerations may not distort the scientific decision over how much air pollution is unhealthy for Americans. Economics can and do factor in to how best to reduce unhealthy air pollution levels using cost-effective measures.

The Latta amendment would stick Americans with whatever dirty air was acceptable to economists and accountants, to hell with doctors, scientists and evidence telling us how much air pollution is actually harmful to human health.

The Latta amendment would replace truthfulness about the purpose and promise of the law -- clean air for all Americans -- with a deadly deception that misrepresents the basic safety of the air we breathe.

The Clean Air Act would become the Clean Air* Act, with the asterisk adding the qualifier that medical and scientific evidence had to be ignored because some future EPA political appointees and economists decided polluting industries should not have to bear the cost of cleaning up their own pollution.

Under the Latta amendment, the Clean Air Act and Congress would no longer deliver clean air to Americans. Standards would not be based upon what is necessary “to protect the public health,” “allowing an adequate margin of safety” to protect the vulnerable, including the elderly and asthmatics. This is the Clean Air Act promise that has protected Americans for over 40 years.

The Latta amendment eradicates that promise and subordinates it to the Unholy Grail of Big Polluters: replacing Americans' right to clean air with polluters' right to trump public health.

The Latta amendment would accomplish what an army of industry lawyers and lobbyists tried to do in the late 1990's and failed, when a unanimous Supreme Court decision by Justice Scalia in 2001 ruled that any consideration of cost to polluting industries would violate the Clean Air Act when EPA sets health standards for ozone or other air pollutants. The Latta amendment would overturn that unanimous Supreme Court ruling.

Whitfield Amendment Sets New Lows In Extreme Assaults on Clean Air Protections

The second dirty air amendment [pdf] to the TRAIN Act, offered by Rep. Ed Whitfield (R-KY), is the most radical amendment to the Clean Air Act ever offered by a member of Congress.

The amendment adds destructive insult to the injury of a TRAIN Act that already was the dirtiest air pollution bill ever to pass a Committee in Congress (as the result of an earlier amendment by Mr. Whitfield too). The new Whitfield amendment is so extreme and would cause so much death, disease and human misery that it is morally unconscionable. 

The Whitfield amendment blocks the power plant smog and soot standards already targeted by TRAIN for more than 8 years, costing over 12,000 lives every year. The amendment blocks the power plant mercury and air toxics standards for more than 3 years, costing up to 17,000 lives every year.

By blocking the mercury and air toxics standards and smog and soot standards for this period of time, the Whitfield amendment would result in:

• as many as 136,000 lives lost due to smog, soot, and toxic air pollution;
• more than 58,000 heart attacks;
• more than 1 million asthma attacks;
• over 66,000 more hospital and emergency room visits; and
• over 1 million more days of missed work or school.

These two clean air standards are projected to save the lives of as many as 1,400 Kentuckians every year, yet one of the Commonwealth’s own elected representatives is trying to block health safeguards that would save many thousands of lives in Kentucky. The death toll across America is even more horrific.

Like the TRAIN Act itself, the Whitfield amendment eliminates any actual deadline for EPA to re-issue smog, soot, mercury or air toxics standards, allowing these life-saving standards to be shelved indefinitely. The amendment thus repeals current law, which has imposed firm deadlines for EPA to issue air toxics standards for polluting industries ever since the 1990 Clean Air Act Amendments.

Just as irresponsibly, the Whitfield amendment would cripple the longstanding manner in which the Clean Air Act’s toxic air pollution standards are set. Instead of basing standards on the cleanest plants, as required for over twenty years, the standards would be based on what the oldest, dirties plants are doing. This would allow the worst performers for some highly toxic pollutants, like mercury or lead or dioxins, to be mashed together with the better performers for other pollutants, driving a result that is far less protective than that followed by EPA under every administration since 1990. Not even the Bush administration attempted to adopt air toxics standards under the law in this twisted fashion, and for good reason.

The Whitfield amendment next resorts to cynical Washington paralysis by analysis to make it harder to reduce acid gases, dioxins and other cancer-causing toxins. For over twenty years, the Clean Air Act has required the nation’s biggest industrial polluters – and power plants are the biggest – to reduce all of their toxic air pollution. Not the Whitfield amendment.

As observed by my NRDC colleague Dave Hawkins, head of EPA's air program in the late 1970's, the Whitfield amendment forces EPA to return to the fundamentally failed approach to toxic air pollution that existed prior to the 1990 Clean Air Act Amendments. Before that important update to the law, EPA was forced to undertake lengthy and cumbersome risk assessments for every toxic air pollutant and every industry it faced. With industry lobbyists tying EPA up in knots, this resulted in the ageny issuing only a handful of toxic pollution standards over nearly two decades, subjecting the American people to unhealthy air and excessive cancer risks.

In the 1990 law, overwhelming bipartisan majorities in Congress threw up their hands in disgust over the agency’s glacial pace and paralysis by analysis. Since the 1990 law, EPA has issued over one hundred successful standards to reduce toxic air pollution by millions of tons. The utility sector has escaped its fair share of reductions due to lawbreaking and inexcusable delays, meaning that required toxic cleanup standards now are more than a decade overdue.

The Whitfield amendment cynically reinstates the historically discredited paralysis and guarantees EPA will be prevented from reducing carcinogens and neurotoxins to protect Americans. And the amendment ensures there will be many more years of delay beyond the three-year delay that the amendment nominally imposes, due to the cumbersome red tape that the amendment dictates.

Even worse, for any toxic pollutants that survive the amendment’s paralysis by analysis, the Whitfield amendment eliminates the most protective legal standard for reducing toxic air pollution that has been a Clean Air Act pillar for nearly twenty-one years. The amendment replaces these meaningful standards – to achieve maximum reductions in toxic pollution – with the absolute least protective measures even mentioned in the law. This would allow actual emission reductions and controls to be replaced by meaningless “work practice standards,” such as tune-ups to utility boilers that need not even reduce emissions.

The Whitfield amendment also re-instates an unfettered cap-and-trade program for smog and soot pollution, no matter how much emissions trading threatens downwind states' air quality. In doing so, the amendment overturns a court ruling [pdf] by a conservative panel of D.C. Circuit judges that said such unrestricted emissions trading hurt downwind states and violated the Clean Air Act, by allowing unconstrained pollution “credit” purchases that dispensed with the need for pollution controls and their actual emissions reductions.

One can only marvel at the hypocrisy of politicians that turned the phrase “cap-and-trade” into a slur during debates over climate change legislation, yet now turn around and embrace cap-and-trade when that approach is less protective of basic air quality and demanded by industry lobbyists. (Mr. Whitfield even has statements on his web site bizarrely vowing to fight against cap and trade systems, without any differentiation between types of air pollution.)

The Whitfield amendment is a dream bill for Big Polluters. It comes as no surprise, then, that the amendment adopts key features from an atrocious bill drafted earlier this year by the country’s most polluting utility company, American Electric Power. No member of Congress would touch that bill with a ten foot pole once AEP's drafting role became public knowledge. Until Mr. Whitfield's bill.

For example, the cynical paralysis-by-analysis element of the Whitfield amendment was lifted from the AEP bill. Moreover, the extreme delays in the amendment are very similar to those in the AEP bill.

EPA’s smog, soot and toxic air pollution standards for power plants together will save more lives and prevent more disease than other clean air standards in the country's proud history. And the Whitfield amendment unceremoniously trashes all that.

The dirty legislation may be a dream bill for polluters but it is a nightmare for all Americans who care about their families’ health and the air we breathe.

Please urge your member of Congress to oppose the TRAIN Act and the Latta and Whitfield amendments.