Friday, December 26, 2003

Two recent small victories...

...on protecting the environment from the ravages of the Bush administration. The first comes from the attempt by the Bushites to open up a significant portion of wetlands to development only to find themselves opposed by most state governments, including those in Republican areas.
Washington, Dec. 16 - Making an abrupt change in its approach to the Clean Water Act, the Environmental Protection Agency announced Tuesday that it would jettison plans to remove federal protection from millions of acres of wetlands.

The agency's administrator, Michael O. Leavitt, made the announcement late in the afternoon in a hastily called news conference. The change effectively repudiated an internal draft regulation that proposed withdrawing federal protections from many isolated wetlands and intermittent streams, including many small waterways in the arid West. ...

The legal underpinnings of a regulation narrowing the scope of the Clean Water Act would also have been shaky, he indicated, since recent federal court decisions, including two from the often-conservative United States Court of Appeals for the Fourth Circuit, rejected arguments that in many respects paralleled the lines of argument that the agency had discussed.

Mr. Leavitt emphasized that the impetus for the decision was President Bush's determination to preserve streams and wetlands. "At the root of this is a commitment from the Bush administration to achieve the goal of no net loss of wetlands," he said, adding that these waters "function as nature's kidneys" and "add immense value to economic and aesthetic bounties of this country."
Ah, yes, "no net loss of wetlands." The phrase brings back such memories. In fact, it was first used by Bush Sr., who liked to fashion himself "the environmental president." In the fall of 1991, he proposed regulations that would open up about 1/3 of protected wetlands in the continental US, about 33 million acres, to development while still claiming "no net loss." How? Simple. The regulations would have changed the definition of "wetland," so there would be no net loss because the areas opened to development weren't wetlands - which I described at the time as "an argument that reaches new depths of twisted."

So here we are, 12 years down the road, and like father, like son: They both made an attempt to do favors for big developers by changing ecological reality by executive fiat. And like father, like son: They both failed. (At least so far.)

There's a footnote to this:
Representatives of the National Association of Home Builders were keenly disappointed at the day's developments. Chandler Morse, a policy analyst for the group, said that without a new rule, confusing and contradictory interpretations of the wetlands regulations would be likely to continue. "I don't think we're going to see any fundamental solutions to the problems we're facing," Mr. Morse said. "And the problems that we're facing, the issues that we'd like to see addressed, are the inconsistency and the unpredictability in the permitting process."
Okay, we'll resolve that. Stop dumping in and building on the f'ing wetlands! See? Consistent and predictable. Problem solved.

The other win is for the moment a temporary one but there's a real chance it could become permanent.
Washington, Dec. 24 - A federal appeals court on Wednesday at least temporarily blocked a Bush administration rule, due to take effect on Friday, that would have relaxed existing regulations and so allowed hundreds of aging power and industrial plants to make upgrades without installing modern pollution controls.

The order, by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, indicates that the court has substantial doubt about the White House's claims that it has authority to modify the Clean Air Act by regulation and that its changes would not hurt the environment.
The issue, "new source review," can be a little confusing, so let me try to give a simplified explanation. When the Clean Air Act was first passed, plants that were already running were grandfathered into the law - that is, they were exempt from the requirements for pollution control equipment that was placed on new construction. The assumption was that over time they'd be replaced by new construction with pollution controls.

However, in order to avoid the expense of installing pollution controls, utilities upgraded and expanded those existing plants instead of building new ones. Congress tried to close this loophole by declaring the such upgrades were to be considered the same as new construction. The industry, still looking to dodge environmental regulations, started referring to its upgrades as "routine maintenance." Over the years, environmental groups and the EPA have sued utilities, arguing their "routine maintenance" was nothing of the sort.

The Bush administration recently tried to rewrite the law via a regulation that would have allowed utilities to replace and upgrade equipment worth up to 20% of the whole plant's value and still escape the need for additional (or, in a few cases, any) pollution controls. That is, for example, a power plant worth $100 million could install $20 million worth of upgrades and have no obligation to install additional equipment for emission controls along with it. It's that regulation the Appeals Court has prevented from taking effect.
Environmentalists have been particularly critical of this regulation, one of the administration's most significant environmental initiatives, saying that it would fail to reduce emissions of sulfur dioxide and nitrogen oxides fast enough, and undermine environmental lawsuits and investigations undertaken against dozens of plants.

Indeed, after the administration made the rule final in October, E.P.A. officials announced that they would drop enforcement actions, some dating from the Clinton administration, involving past violations of the Clean Air Act attributed to some 50 power plants.
The proposal came out of Dick Cheney's secret energy policy discussions. Are you surprised?

Important Update: From Atrios we learn of a significant change in a paragraph in the Times article about the court decision on new source review. This is the paragraph as it appears now:
The Environmental Protection Agency, which had proposed the new rule, said in a statement that it was "disappointed with the court's decision" and that neither the regulation nor the court's stay of it would have much effect on emissions.
And this is the paragraph as it originally appeared, which was still in the Google cache earlier today:
The Environmental Protection Agency expressed disappointment with the court's decision but did not say whether it would be appealed. The court order, while only two pages in length, was a strong statement in one of the most contentious environmental and public health battles of the last several years - whether aging coal-fired power plants must install controls as they increase their pollution emissions. The Environmental Protection Agency has estimated that full enforcement of existing rules on power plant pollution would save 19,000 lives per year.
That is quite a significant change and its removal does change the thrust of the story.

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