After almost eight years, the Bush administration’s approach to air pollution policy—including global warming—ends up with bupkus. That’s a wonderfully useful Yiddish word meaning, literally, “nothing,” but implying less than nothing, or the meaningless result of lots of apparent, but futile, effort.
The futility of the Bush years on air policy became undeniably clear last week on two fronts. First, the U.S. Court of Appeals for the District of Columbia struck down—completely and emphatically, although less than clearly—the administration’s “Clean Air Interstate Rule.” That Environmental Protection Agency rule was the administration’s attempt to finesse the pressure by environmental groups to come up with a new program for regulation of fine particulates and ground-level ozone. Earlier, the court rejected EPA’s analysis in a similar regulatory regime for mercury emissions.
Rather than working with Congress for new air pollution controls on electric generating plants—we’re talking coal here—the Bush administration proposed a regional air pollution emissions trading scheme affecting the eastern half of the U.S. The greens didn’t like it, much of the electric utility industry backed it for fear of a more sweeping control program, and the state of North Carolina sued.
In a 60-page, largely impenetrable opinion, the D.C. appeals court, by a 3-0 vote, threw out the EPA program, ruling that it far exceeded the agency’s authority under the Clean Air Act. The court said, “EPA’s approach—regionwide caps with no state-specific quantitative contribution determinations or emissions requirements—is fundamentally flawed. Moreover, EPA must redo its analysis from the ground up.” It doesn’t get much more direct than that.
While the policy analysis supporting the appeals court is less than pellucid, the implications are undeniable: CAIR is DEAD. Back to square one, with only five months left in the Bush administration. There will be no answer from EPA.
The scope of the appeals court ruling was a surprise. Neither industry nor the environmental community appeared comfortable with the court’s reasoning. While environmentalists had opposed the EPA’s CAIR rulemaking, John Walke of the Natural Resources Defense Council told the New York Times that the court ruling means that “the utility sector walks out of eight years of the Bush administration without having to reduce any air pollution.”
For industry, Scott Segal of the Electric Reliability Coordinating Council said, “The Clean Air Interstate Rule was widely supported in the power and manufacturing sectors, and in the environmental and state regulator communities.” The court’s complete rejection of the EPA rule—a “vacatur” in lawyer-speak—said Segal, “was certainly unexpected.”
Jim Owen, spokesman for the Edison Electric Institute, representing investor-owned utilities, told the Times, “In our industry, one of the things we crave is certainty, and this goes in the other direction.”
Nor was the administration pleased with the court decision. EPA Administrator Stephen Johnson said the ruling overturned “one of the most significant and health-protective rules in our nation’s history.”
The same day, the EPA responded to an earlier U.S. Supreme Court ruling by issuing a notice of proposed rulemaking that said the administration will not attempt to control carbon dioxide emissions as greenhouse gases. This expected ruling elicited a yawn among air pollution policy gurus.
EPA chief Johnson said attempts to regulate CO2 emissions would mean an “unprecedented expansion” of EPA authority and could dramatically damage the U.S. economy with little environmental benefit. The Bush administration (courageously, in my view, although I oppose the Bush administration on almost every other issue) has consistently opposed attempts to regulate CO2 emissions under the Clean Air Act.
While the administration resisted the notion that the air act authorized action against greenhouse gas emissions, the Supreme Court rejected that analysis. But the high court did not mandate rules on CO2 emissions, only an analysis of whether the administration would regulate the emissions.
The court decision and EPA notice appear to close the door on further Bush administration clean air initiatives. It’s extremely unlikely the administration will attempt to resurrect the CAIR program in the remaining five months of its life. It’s clear the attempt to regulate greenhouse gas emissions, or crack down on particulates and ozone, is dead until a new administration.