Bush Lets Clean Air Act Violators Off the Hook

EPA even won't prosecute companies that have already been found in violation of the law

The assistant administrator for EPA's enforcement office, John Peter Suarez, told EPA enforcement staff and attorneys of the administration's decision November 4. The announcement has drawn objections from the state of New York and a ranking member of the Senate Judiciary Committee. But the electricity industry says the New Source Review threatens the reliability of the national electrical system without helping the environment.

The New Source Review program, established in 1977, requires owners of industrial facilities to install the best pollution control equipment available when they make a major modification to an existing facility that increases emissions.

But the Bush administration has been relaxing the New Source Review rules, a policy favored by the electric power industry. The administration has published rule changes to the program, due to take effect on December 27, that exempts modifications that cost less than a certain percentage of the entire facility or a specific piece of equipment, as much as 20 percent for some industries, even if they produce more emissions.

A dozen states, the District of Columbia and several local governments filed suit in federal court late last month to block the rule changes.

Today, U.S. Senator Patrick Leahy, a Vermont Democrat who serves as the ranking member of the Senate Judiciary Committee, sought a hearing by the panel on the Bush administration's order to stop any pending enforcement investigations against electric utilities and other industries that received a Notice of Violation.

The senator wants the Judiciary Committee to determine the impact the Administration's decisions will have on the cases already referred to the Department of Justice by the EPA and on cases that are currently before federal courts. His request, to Judiciary Committee Chairman Orrin Hatch, a Utah Republican, also asks that the Justice Department report to the committee how much funding is needed to pursue the cases.

Leahy said the pending cases could reduce the emission of hundreds of thousands of tons of pollutants into the air each year.

"The White House's policy is to coddle the big polluters, and the public be damned," said Leahy. "Doling out pollution pardons may make some big political contributors happy, but the American people will pay the price by breathing dirtier air."

At a July 2002 joint hearing before the Senate Judiciary Committee and the Environment and Public Works Committee, Jeffrey Holmstead, assistant administrator of EPA's Office of Air and Radiation, responded to a direct question from Leahy by testifying that the New Source Review changes would not impact the EPA enforcement cases.

Since that testimony, the EPA has insisted that New Source Review rule changes would not diminish existing enforcement actions or affect the investigation of past violations.

The EPA decision not to move forward with enforcement of the New Source Review could throw that enforcement to the states. New York Attorney General Eliot Spitzer today called on the EPA to provide its enforcement files to state officials for review and possible legal action.

In a letter to EPA Administrator Mike Leavitt, who was sworn in November 6, Spitzer asked the new EPA head to "intervene" and send the files to the offices of state attorneys general.

"You have said that balance and stewardship will be at the heart of your environmental policy," Spitzer wrote. "There is nothing balanced about a unilateral decision not to enforce the Clean Air Act. An enforcement program that allows additional air pollution to destroy the Adirondack lakes and aggravate urban smog is not stewardship."

In 1999, under the Clinton administration, Spitzer's office formed a partnership with the federal government to reduce air pollution from power plants. "We filed a series of lawsuits, the foundation of which was the New Source Review provision of the Clean Air Act," he said today. "That effort is now at risk because of the EPAÕs decision, revealed yesterday, to abandon a series of important Clean Air Act cases."

"This action means that the states must again fill a void left by the failure of the Bush administration to enforce the law. We are prepared to do so in New York," said Spitzer, who serves in the Republican administration of Governor George Pataki.

The EPA has referred 13 cases to the U.S. Department of Justice for violations of the New Source Review program. None of these cases has been acted upon by Bush administration.

The EPA has also filed Notices of Violation against 47 facilities -- six power plants, 15 refineries, and 26 other industrial facilities.

The agency has conducted investigations into another 69 power plants and seven other industrial facilities for suspected violations of the Clean Air Act.

The attorney general is asking the EPA to provide all of these files to the attorney general of the state in which the polluters are located, and also to the attorneys general of the states downwind that are harmed by this pollution.

If provided appropriate information by the EPA, the states may decide to complete these investigations and take legal action, Spitzer said." A federal-state partnership is the best way to enforce air quality laws. But if the federal government refuses to act to protect citizens, the states must be provided with appropriate information so that they can step forward to do so."

The Electric Reliability Coordinating Council supports the Bush administration's decision to relax the New Source Review rules. This coalition of electric utilities, labor unions, consumers, public power companies and businesses says the EPA's enforcement of New Source Review rules is "threatening the reliability of our national electrical system and unnecessarily increasing the cost of power to American consumers and businesses, while providing no additional protection to the environment."

The council says that New Source Review enforcement blocks "routine maintenance, repair and efficiency improvement projects that could immediately expand generating capability without increasing fuel burning and will decrease by a significant percentage the total available installed capacity through caps on operations."

But in the U.S. Senate, Leahy of Vermont, one of the states that is suing the Bush administration to block relaxation of New Source Review rules, does not buy that position.

"We now have smoking guns about their policy on behalf of these belching smokestacks," Leahy said. "The administration has been telling Congress one thing and doing exactly the opposite. It's past time for some accountability. Someone needs to come to the Senate and explain what is going to happen to the cases their policy is leaving in the lurch."