Clean-air debate shifts to new emissions rule

A Senate panel’s rejection of President Bush’s “Clear Skies” bill shifts the clean-air fight to the Environmental Protection Agency, which is preparing two anti-pollution measures similar to the failed legislation.

From there, the battle is expected to move quickly to federal court as industry and environmental groups squabble over how much regulatory leeway the Clean Air Act provides, sources in both camps say.

One proposed change — the Clean Air Interstate Rule, or CAIR — would cut emissions of sulfur dioxide (SO2) and nitrogen oxide (NOx), precursors to acid rain, to levels similar to Clear Skies.

A second rule, which the EPA is set to release next week by court decree, calls for new limits on mercury emissions.

Clear Skies would set a national standard for SO2, NOx and mercury cuts. By comparison, the Clean Air Interstate Rule only limits SO2 and NOx in 28 states and the District of Columbia, leaving unaffected the Western reaches of the country that rely on non-emitting hydropower electric plants.

The rule could be released as early as today, sources said.

Though Clear Skies was more expansive on some level than the proposed EPA rule, environmental groups heralded the defeat of Clear Skies in the Senate Environment and Public Works Committee, an outcome sweetened by Bush’s specific call in his State of the Union address for Congress to pass the measure.

The 9-9 vote prevented the measure from being reported to the Senate floor. Lincoln Chafee (R-R.I.) joined Democrats and independent James Jeffords of Vermont in voting against the bill.

Jeremy Symons, a former EPA official who lobbies for the National Wildlife Federation, which opposed the president’s plan, said, “Today’s vote is a decisive blow to attempts by polluters to rewrite the Clean Air Act.”

Clear Skies sought to reduce pollutants through a “cap and trade” program and was generally favored by power companies as a sufficiently flexible approach to pollution reduction.
Through cap-and-trade programs, utilities could trade emissions credits on an open market. Those that exceeded emissions reductions could sell credits to those that failed to meet required cuts.

The law would have provided the “regulatory certainty” utilities crave, said Dan Riedinger of the Edison Electric Institute, a trade association that represents investor-owned utilities.

“Sensible multiemission legislation can reduce power plant emissions faster, with greater certainty, and more cost-effectively than current programs,” said EEI President and Bush campaign supporter Tom Kuhn.

Much of the negotiations leading up to the committee’s vote — delayed three times in hope of striking a workable compromise — centered on whether to amend Clear Skies to include mandatory cuts in carbon dioxide (CO2), considered a greenhouse gas.

Though they joined the fight to include CO2, environmental groups also opposed Clear Skies as a rollback of key regulations established by the Clean Air Act, which the measure would replace.

One such regulation was new-source review, a controversial requirement that utilities install anti-pollution measures if they undertake major plant upgrades.
Another complaint was that Clear Skies would have precluded state officials from developing their own clean-air standards.
“There was a plethora of provisions that would weaken the current law,” said Frank O’Donnell of the Clean Air Watch, an environmental group.

Inclusion of those changes was key to industry’s support, according to one utility lobbyist who asked not to be identified. The source predicted that some utilities, particularly ones that rely on coal-fired power plants, would challenge CAIR in court.

“They don’t get anything in return for their compliance,” the source said.

CAIR is expected to call for sulfur-dioxide emissions to be cut by 70 percent and nitrogen-oxide emission by 60 over the next 15 years.

The prospect of lengthy litigation fights if Clear Skies failed was one of the main selling points of backers of the measure.

Environment and Public Works Chairman James Inhofe (R-Okla.) said the rejection of Clear Skies means more litigation, more costs and less certainty for businesses and less certain cuts in pollution.

“No matter how well-intended, no regulation the EPA issues can provide the same certainty for businesses or the environment,” Riedinger said.

O’Donnell said, however, that CAIR shows the EPA can “make significant air improvements under existing law.”

Environmental groups argued that emissions reductions would come quicker under enforcement of Clean Air Act rules. But they are less sanguine about the upcoming mercury rule. It is expected similarly to employ a cap-and-trade program to encourage mercury reduction.

Critics say that approach leaves “hot spots,” areas where mercury emissions exceed levels harmful to human health. State health officials and environmental groups instead favor a rule that mandates each utility meet its own mercury reduction targets, which would be set based on the technology available to reduce the emissions.

O’Donnell said a cap-and-trade approach for mercury reduction is “flatly illegal” under the confines of the Clean Air Act.