How Corporations Are Trying to Cheat Environmental Law

By Frank O'Donnell, TomPaine.com. Posted April 9, 2007.

Let's start with a question perhaps suitable for a fifth-grade student: If you allow more pollution to spew out of an industry smokestack, does that mean the pollution increases? With apologies to comedian Jeff Foxworthy, President Bush is not smarter than a fifth grader! And neither are the politicos he has planted at the Environmental Protection Agency.

I say this after learning that the president's men intend to ignore one of last Tuesday's big environmental rulings by the U.S. Supreme Court, a case about government authority to enforce pollution standards at coal-fired electric power plants.

The case here is awash in legal jargon, but the concept is pretty simple: Existing power plants don't have to use modern pollution controls unless the plant is refurbished in such a way that emissions "increase." If that happens, the plant is supposed to be cleaned up.

For decades, federal enforcers have interpreted "increase" to mean actual pollution, measured over the course of a year. But when the Clinton administration started aggressively enforcing the law, some polluter lawyers came up with an ingenious defense: they asserted that "increase" meant the rate of pollution per hour. Under this polluter-mouthpiece interpretation, a company could overhaul an aging plant so it could operate many more hours -- and emit much more overall pollution -- yet still be exempt from using modern pollution controls.

This legal legerdemain would basically destroy the chief government enforcement program against the nation's biggest polluters. And literally thousands of lives could be cut short by the resulting pollution. Astonishingly, a federal appeals court bought this pretty obvious sophistry, advanced by Duke Energy Corp.

The Bush administration, always happy to cut a break for those big power industry campaign contributors, cheerfully declined to appeal this ruling to the Supreme Court. It also began preparing a rule change that would codify the bad court ruling.

Thankfully, my friends at Environmental Defense stepped in and not only convinced the Supreme Court to review the case, but brilliantly won a unanimous decision which clarified that an "increase" in pollution really is an increase.

Enter President Bush. When quizzed last Tuesday about the Supreme Court ruling on global warming (more on that in a second), the president declared he intended to follow "the new law of the land." But, at the same time, his henchmen at the EPA are moving forward with a new rule that would adopt the very get-free-out-jail-approach rejected by the Supreme Court.

If you are scratching your head at what looks like a blatant attempt to defy the high court (I suspect it's all part of a broader administration ploy to stall off pollution controls for its friends for as long as it can -- 21 months now and counting down) consider his response to last Monday's other big Supreme Court decision, on global warming.

Despite the best efforts of Bush-appointed justices, the high court ruled 5-4 that the EPA has legal authority under current law to regulate greenhouse gas emissions linked to global warming.

When quizzed about this last Tuesday, the president replied that "I care about the working people of the country" (sounding like a parody of the side-stepping, double-talking Texas governor in the musical "Best Little Whorehouse in Texas").

The president argued that he had already advanced a solution: his alternative fuel proposal in his most recent State of the Union Address. He conveniently forgot to note that an element of that plan, to convert coal into liquid fuel (a plan embraced by coal-state politicians of both parties, including presidential candidate Barack Obama, D-Ill.), would actually increase greenhouse gas emissions. Yes, that ugly word, increase, yet again.

If the president really wants to do something about global warming emissions quickly, here's a suggestion: California has adopted standards designed to reduce global warming emissions from cars and SUVs. And 13 other states have either adopted those standards or are about to.

But before California and the other states move forward, the U.S. EPA must check a box granting permission. Following the Supreme Court ruling, California Governor Arnold Schwarzenegger reiterated his request for EPA approval. Even a first grader ought to be able to figure out the right answer to this one.

See more stories tagged with: supreme court, global warming, climate change, epa, clean air, duke energy

Frank O'Donnell is president of Clean Air Watch, a nonpartisan, nonprofit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.

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