Statement of Eric Schaeffer
March 5, 2002
Thank you, Senator Lieberman and members of the Committee,
for inviting me to testify today. Last week I wrote to
Administrator Whitman upon leaving the Environmental Protection
Agency to share some concerns about an assault by the energy lobby
on our efforts to enforce the Clean Air Act. I would like to
summarize those concerns, and ask that my letter be included in
the
record.
Until last Thursday, I managed the EPA program responsible for
civil enforcement of most environmental laws. Two years ago,
we brought lawsuits against plants owned by nine electric power
companies for violating the Clean Air Act. Together, these
companies release 5 million tons of sulfur dioxide every year -
that's one out of every four tons emitted nationwide
- and 2 million tons of nitrogen oxide. The acid rain and
choking smog from that kind of pollution is a killer, responsible
for an estimated 10,600 premature deaths every year, 5,400 cases
of chronic bronchitis, childhood asthma, and over 1.5 million lost
workdays. These are EPA estimates approved already provided
to the Senate, and they document a clear and present danger to
the public health.
This outrage should be stopped, and it can be if we are willing
to enforce the Clean Air Act. But EPA's efforts to do so
are threatened by a political attack on the enforcement process
that I have never seen in twelve years at the Agency.
The energy lobbyists, working closely with their friends in the
White House and the Department of Energy, are working furiously to
weaken the laws we are trying to enforce. Not surprisingly,
defendants have slipped away from the negotiating table one by
one, and our momentum toward settling these cases has effectively
stopped.
Many of the plants EPA sued date back to the forties and fifties;
all were built before the Clean Air Act New Source Review program
became law twenty-four years ago. None meet the modern
pollution control standards we have required of new plants built
since that time. The laws broken reflect a bargain made with
these relics of the smokestack age in 1977. These so-called
"grandfathered" plants were allowed to avoid tough new
standards for pollution control, as long as they were not modified
to increase their emissions above a certain threshold. If
you had the money to rebuild or replace a major component, so the
law assumed, you could afford modern pollution controls.
Our lawsuits allege that this bargain was not kept. These
companies undertook a number of large projects - some costing
over ten million dollars - that increased their pollution, and
without installing state of the art pollution controls.
Just before the new Administration took office EPA, working with
states like New York and Connecticut, were making real progress
bringing these cases to a successful conclusion. Cinergy
and Vepco publicly agreed to reduce these pollutants by a combined
total of 750,000 tons, the Tampa Electric settlement took 190,000
tons out of the year, and we had begun productive talks with other
companies.
But in the spring of 2001, it became obvious that the energy lobby
was working inside the Administration to undermine our cases by
changing the rules we were trying to enforce. And one by
one, the companies we were negotiating with began slipping away
from the table. Cinergy and Vepco still have not signed the
agreements reached sixteen months ago. We did not receive any
calls from the White House asking us to stop working on cases;
this is not the movies. But attorneys representing the
companies themselves asked why they should comply with a law the
White House was trying to change, and we had no answer.
The energy policy announced by the White House last May calls for
a review of the cases we filed and the New Source Review law we
were trying to enforce. The Department of Justice eventually
determined that our enforcement cases were, in fact, reasonable
under the law. But the Administration's efforts to weaken
the New Source Review laws continue.
The latest drafts in circulation - and defendants' lawyers
always seem to have the latest copy - would widen narrow
exemptions into gigantic loopholes that would swallow the
law whole. One draft proposal would apparently allow the
replacement of every part of a utility boiler, down to the concrete
pad, without ever triggering the requirement for pollution
controls. This kind of perpetual immunity from the law
is exactly what courts have said is prohibited by the Clean Air
Act. And now the Administration is advancing a new legislative
proposal - the so called "Clear Skies" bill
- that appears to cut pollution less that our enforcement actions
would. Why chase a new bill through a long legislative process
if we're not willing to enforce laws already on the books?
At a banquet accepting what amounts to the Academy Award for best
lobbyist, the head of the Edison Electric Institute quoted from
Machiavelli and summed up what appears to be the energy industry's
guiding philosophy: "It is good to be feared."
It was a revealing moment, but maybe that's business as usual for
the utility industry.
But with more than 10,000 premature deaths a year, the stakes are
too high for business as usual. We need a fair fight, in the
open, and based on the facts, and then we need to choose.
We need to choose between the law, and the lobbyists trying to
undermine it. We need to choose between children with
asthma, and influence peddlers who don't seem to care.
If the Environmental Protection Agency makes the right choice,
we'll all breathe easier.