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Bush EPA's New Source Ruling: The Story is Certain to Continue by Bill Dawson
In August, the Bush administration adopted contentious changes in a key regulatory program for polluting industries under the Clean Air Act, called New Source Review (NSR).
The long, complex debate over these revisions -- which will effectively exempt thousands of power plants and other industrial facilities from installing tighter emission controls when they're modernized -- had provided ample coverage opportunities for environmental, political, business and other reporters.
The adoption of the regulatory changes on Aug. 27, however, was only the end of one chapter (or perhaps just a subchapter) in an interlocking series of battles over clean air policy that started decades ago. Numerous possibilities for additional stories will present themselves in the near future, both on the NSR issue and in other closely related areas:
New Source Review
The NSR fight will continue to unfold on a number of fronts.
In Congress, for instance, industry representatives who favored the rule changes quickly said they expected skirmishes over efforts to attack them legislatively, which could play out in appropriations riders or by other legislative means.
That prediction was fulfilled in September, when Sen. John Edwards of North Carolina, a candidate for the Democratic presidential nomination, announced he would block President Bush's nomination of Utah Gov. Michael Leavitt to head the Environmental Protection Agency until the administration responds to his year-old request to study the health impacts of the NSR changes.
Edwards was poised to offer an amendment to the Senate energy bill during the summer to attack the regulatory revisions, but didn't do so when senators voted out last year's bill instead. The Edwards amendment reportedly would have permitted states to elect to enforce the old NSR rules instead of the administration revisions. Even without such a federal measure, however, industry representative are preparing for fights in at least a few state legislatures over expected proposals to facilitate that tougher approach.
Last month, the first such measure to gain legislative approval, Democratic state Sen. Byron Sher's SB 288, was signed into law by California Gov. Gray Davis. The law could prove to be an influential precedent for similar efforts in other states. Litigation will provide another reason for continuing NSR coverage -- both lawsuits by states and by environmentalists against administration's rule changes and still-pending federal lawsuits against utilities that were filed under old NSR rules by the Clinton administration.
New York Attorney General Elliott Spitzer has led the effort by a growing roster of states against earlier NSR changes by the administration and is expected to play the same role in states' litigation against the more far-reaching revisions announced in August. Paradoxically to some, the administration moved toward changing the NSR regulations in ways favored by utilities at the same time it was proceeding with lawsuits against some of those companies over alleged violations of the old NSR rules. So far, the Justice Department secured five pollution-reducing settlements before a trial victory in August in a sixth case against Ohio Edison.
A ranking EPA official said after the Ohio Edison ruling, the government would continue to prosecute remaining cases brought under the old NSR rules. But environmentalists think industry officials may push to have the cases dropped in light of the NSR rule changes. The Rockefeller Family Fund's Environmental Integrity Project (EIP) monitors this issue. Eric Schaeffer (202-263-4440), a former Environmental Protection Agency enforcement chief now heads EIP. Two industry contacts who are immersed in the issue and regularly brief reporters are Frank Maisano (202-828-5864) and Scott Segal (202-828-5845), representatives of the Electric Reliability Coordinating Council.
A Justice Department report with useful background information on the lawsuits against utility companies can be found at http://www.usdoj.gov/olp. The EPA's webpage with numerous links to NSR information is http://www.epa.gov/nsr.
Multi-pollutant Legislation
Administration officials have stressed that their relaxation of the NSR rules will be coupled with a legislatively mandated reduction in air pollution from electric utilities, the nation's largest source of industrial emissions. So far, however, such a bill hasn't been passed, and there's doubt among Congress-watchers about whether that will happen -- at least before the next national election.
Bush pledged in his 2000 campaign to pass what is commonly called a "four-pollutant" bill to cut back on older power plants' emissions of three pollutants regulated under the Clean Air Act -- nitrogen oxides, sulfur dioxide and mercury -- and one substance that isn't regulated, carbon dioxide. Soon after taking office, however, amid heavy industry and conservative lobbying, Bush dropped the pledge to include carbon dioxide, the principal greenhouse gas blamed for global climate change.
The resulting legislation -- with new pollution caps for the three already-regulated pollutants -- is the administration's "Clear Skies" bill, which has found favor with industry groups and others. A competing bill, by Sen. James Jeffords, I-VT, and others, covers the three pollutants in the Bush measure plus carbon dioxide limits -- it has been supported by many environmentalists. Yet another bill, by Sen. Tom Carper (D-DE) and others, offers an alternative approach to reducing emissions of all four pollutants.
Twice last month, including during a visit to a Michigan power plant, Bush sought to jump-start congressional action on his Clear Skies proposal. More reporting opportunities will present themselves if Congress does begin moving toward action on new emission controls for power plants. For instance, journalists could localize the issue by examining the impacts of the various bills on utility plant emissions in a certain region. One place to start is a point-by-point table comparing the three bills, prepared by the industry-funded Washington think tank Resources for the Future.
Some environmentalists who follow the issue closely also report a recent surge of corporate lobbying activity that appears intended to move the Bush bill along in the congressional process. One who regularly briefs reporters by email about congressional developments is the Clean Air Trust's Frank O'Donnell, 202-785-9625.
(Meanwhile, EPA is under a consent decree to propose new mercury-emission standards for coal-burning utility plants by the end of the year.)
Air Quality Standards
Newsworthy developments are also forthcoming in the complex process involved in the EPA's implementation of new, stricter air quality standards for ground-level ozone and fine airborne particles. These standards were adopted by the Clinton administration and then survived a major legal challenge by business and industry groups. The way the standards are put into effect is expected to set the stage for efforts to reduce air pollution in many parts of the nation for years to come.
The EPA is moving, under the force of another consent decree, to complete by April 15 its designation of the areas that violate the maximum allowable ozone levels set in that new standard. State plans to reduce the multiple-source pollutants that form ozone will be required in these "non-attainment" areas, many of which have not experienced their own ozone-control requirements previously.
State officials had to submit recommended boundaries for these areas to the EPA by July 15 -- recommendations that prompted political tussles in a number of places. EPA is analyzing the state non-attainment maps and is scheduled to issue counterproposals in October. The state proposals were based on monitoring data for the three-year period of 2000-02, and EPA officials have said they will also weigh data from the summer of 2003 in their counterproposals.
In addition, EPA plans to finalize its overall policy for the ozone standard's implementation in December-- including schedules for development of state emission-reduction plans and for when different areas must attain the standard.
EPA officials are also proceeding with their separate phase-in of the new standard for airborne particles. Certain types of particulate matter have some of the same chemical "precursors" (and emission sources) as ozone, so local strategies to reduce ozone and particles will inevitably overlap in some regions. (The issue of multi-pollutant legislation is also intimately connected, because power plants using fossil fuels, especially those that burn coal, are a leading source of nitrogen oxides, which contribute to both ozone and particle formation.)
Government officials have been extensively monitoring fine particle levels to determine the boundaries of areas officially designated as failing to comply with this standard. State-recommended non-attainment maps for particle pollution are due to EPA next February. EPA is then scheduled to finalize its particle-boundary determinations by December 2004.
Generally, EPA officials say, particle readings violating the standard have been concentrated in the East and in California.
Meanwhile, staff scientists at EPA's Office of Air Quality Planning & Standards released a draft report on August 29, declaring there is "direct and strong support" for the level of health protection provided by the current particle standard and recommending that the agency consider an even tougher standard "to provide additional health protection." (This report is available at http://epa.gov/airlinks/airlinks4.html. Other EPA information on air quality issues is accessible through http://epa.gov.airlinks.)
More reporting resources
--American Lung Association
October 2003
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