Tuesday, September 9, 2008

Wayward EPA Seeks More Time, Contemplates Supreme Court Appeal of CAMR

Talk about dragging out the inevitable, the EPA has requested a second extension of the deadline to appeal to SCOTUS the D.C. Circuit Courts unanimous decision to vacate the CAMR. The D.C. Circuit Court even denied EPA a chance to have it's ruling reviewed. The problems with CAMR were so clear that to pursue this further via appeal is certainly only a delay tactic. Some excerpts from an article in Energy & Environment News (subscription req'd) elaborate below;

For the second time in a month, the Bush administration is asking the Supreme Court for more time to decide whether to appeal a decision by the U.S. Circuit Court of Appeals for the District of Columbia that struck down a controversial cap-and-trade program for mercury emissions from coal-fired power plants.

Acting Solicitor General Greg Garre asked the court to extend its deadline until Oct. 17, a full two months from the date by which a writ of certiorari would normally be required. Garre said the additional time "is needed to complete consultation" with U.S. EPA over a number of recent legal setbacks relating to the agency's Clean Air Mercury Rule.

Chief Justice John Roberts already approved the initial request, pushing the date from Aug. 17 to Sept. 18.
Last March, the same court that struck down the mercury rule agreed that EPA violated the Clean Air Act by exempting coal- and oil-fired power plants from a list of industries subject to regulation of hazardous air pollutants under Section 112 of the act.

EPA in 2000 included power plants on its list of regulated industries under Section 112 but then reversed itself in 2005, saying it was neither "appropriate or necessary" to include power plants on the source list because the power sector's emissions were subject to other statutes that achieved the same or greater public health benefits.

On the heels of that March 2005 decision, EPA announced its new mercury control program for power plants, drawing upon the largely successful 1990s cap-and-trade program for sulfur dioxide, which had helped reduce acid rain pollution in the Northeast.
With the D.C. Circuit's rejection of both CAMR and the Section 112 delisting, EPA now must figure out how to retool its mercury control program within the more narrow confines of the law and, as Garre wrote, "to assess the legal and practical impact of the [D.C. Circuit] court's ruling."

But critics of EPA's regulatory approaches say the request for more time amounts to little more than a stalling tactic. "They need more time because they need more time," John Walke, a senior attorney with the Natural Resources Defense Council, said of the latest application.

This most recent action highlights the wayward nature of the Bush EPA. The politicization of the Agency has long been discussed in oversight hearings on Capital Hill and in the press. An insightful article by Jori Lewis on emagazine.com summarizes some of the more egregious attempts by this off course and out of control agency to hijack the public will in favor of industrial interests and polluters. The mercury rule portion of the article is shown below. The full article can and should be read here.

"What has been most remarkable,” says Vickie Patton, the deputy general counsel for the Environmental Defense Fund, “is the extent to which the judiciary has provided a very unmistakable check on the EPA’s policies, [policies] that have really strained the nation’s clean air laws in ways that Congress never intended.”

Take the mercury emissions case. Mercury is a persistent neurotoxin that can find its way from fish to humans, where it can cause myriad health problems. Regulations under the Clean Air Act mandated stringent controls—some would have reduced mercury emissions by 90%. In 2005, the EPA passed a regulation that would require coal-fired power plants to reduce emissions by only 70% and use a cap-and-trade system that would allow cleaner plants to trade unused emissions.

“These rules came right out of the White House,” says Dr. Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists (UCS). She says that EPA scientists were told to come up with the data to justify such a change in policy. “Their own inspector general at the EPA found that EPA scientists were pressured to change their analyses and their findings to agree with a predetermined value for a national cap on mercury emissions.”

A federal court ruled in February that the new rules don’t go as far they should to protect the public from mercury.

Grifo says this is an egregious example, but one that is hardly unique in Bush’s EPA. There have been tales of suppressed research; of reports kept in draft form so they don’t have to be released to the public; and of political retaliation for those who stray off message. Read more.

Thank you emagazine and Jori for a reminder of what has been going on in our EPA.