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Smoke Signals

Will the EPA cave to Republican pressure?

In 1903, when the Fisk Generating Station in Chicago had its first steam engine turbine installed, engineers hailed the new coal-fired power plant as a marvel—“a monster in its day,” as one magazine put it. But, over the years, the boxy red-brick structure has become, in the eyes of many locals, a monster of a different sort. Once perched on the outskirts of Chicago, the plant (which was rebuilt in 1959) was swallowed up by the fast-growing city and now sits in the middle of the working-class Hispanic neighborhood of Pilsen.

Chicago has one of the highest asthma rates in the country, and health advocates say Fisk and its sister plant, the 86-year-old Crawford station a few miles away, only make things worse by belching up soot. “We can’t say that having two power plants in the middle of the city causes high asthma rates,” says Brian Urbaszewski of Chicago’s Respiratory Health Association. “But, either way, you have all these people sensitive to air pollution living in a three-mile radius.” One 2001 study from the Harvard School of Public Health suggested that fine particle pollution from Fisk and Crawford alone caused 41 premature deaths, 2,800 asthma attacks, and 550 emergency room visits in Chicago each year. (The owner of the plants, Midwest Generation, says it has taken steps to reduce pollution since then.) And that’s to say nothing of the toxic mercury from the plants that finds its way into rivers and lakes or the carbon-dioxide wafting out of their smokestacks and heating the planet.

These two antiquated plants have been able to persist for so long—and avoid installing modern pollution controls—thanks largely to a loophole in environmental law. When the Clean Air Act was written in 1970, the bill’s author, Edmund Muskie, had exempted existing power plants from the new pollution limits—he figured the older plants would get retired soon anyway. But utilities quickly realized that it was profitable to keep these dirty, unregulated plants chugging along. In 1977, Congress tried to close the loophole by requiring older facilities to clean up as soon as they underwent major modifications, but that just led to scorched-earth haggling over what counted as “major.” Today, one-third of the coal plants operating in the United States came online before the 1970 law was passed.

Over the past two years, the Environmental Protection Agency (EPA) has been working on a flurry of updates to the Clean Air Act that would address this problem, as well as other neglected sources of pollution. There’s a regulation to mop up mercury emissions from power plants and other facilities, a rule to set limits on smog-forming compounds like sulfur-dioxide and nitrogen-oxide, and a revised standard for ground-level ozone pollution. New rules are on the way for coal-ash waste and for drawing cooling water from rivers and lakes. What’s more, this year the EPA will propose standards on power plants and oil refineries to clamp down directly on the greenhouse gases that are responsible for global warming. The end result is that aging power plants like Fisk and Crawford will either have to install costly new retrofits or shut down altogether. Hugh Wynne, an investment analyst who studies the utility industry for Sanford Bernstein, estimates that the mercury and smog regulations alone could force up to one-fifth of the nation’s oldest and dirtiest coal-fired plants to retire in the next five years, largely in the Midwest and South.

Such a shutdown would be a huge deal. If all that coal power was replaced by cleaner natural gas, greenhouse-gas emissions from the power sector could fall by as much as 7 percent. Given that Congress isn’t likely to pass a climate bill anytime soon, the choices that EPA officials make in the months ahead will matter greatly. “This year is going to be critical for paving a pathway for reducing carbon-dioxide pollution because of those EPA rules,” says Daniel Weiss of the Center for American Progress. “Assuming, that is, they’re not stopped.”

So what could thwart the EPA? Conservatives in Congress, for one: Just about every Republican in the House and Senate favors a resolution to prevent the EPA from tackling greenhouse gases, while some members would go further and chip away at rules on toxics like mercury. But the other potential obstacle, which has received far less attention, is the Obama administration itself. Faced with a hostile political climate, how hard will the White House fight for new rules on pollution?


By and large, the regulations the EPA is crafting are required by law. Under the Clean Air Act, standards and limits on a variety of pollutants are supposed to be updated every five to eight years so that the regulations can reflect advances in technology, as well as new health research. It wasn’t until the 2000s, for instance, that researchers realized ground-level ozone pollution from vehicles and power plants could actually kill people, not just exacerbate asthma and other respiratory problems.

In reality, though, administrations have a lot of leeway when it comes to writing regulations, and EPA rules are often shaped as much by politics as by science. The last time the agency was under siege, by Newt Gingrich and the Republican Congress in the 1990s, Bill Clinton managed to beat back the GOP’s direct efforts to block environmental regulations. But the experience left the agency skittish, which may have influenced its subsequent decisions. In 1995, for instance, the EPA was working on rules to require emissions monitoring for thousands of industries, as well as programs to promote car-pooling in the nine smoggiest cities. But, after a tense meeting with Republican governors, who threatened to launch a campaign to repeal the Clean Air Act, then-EPA head Carol Browner made the car-pooling voluntary and relaxed the monitoring rules. A Washington Post investigation cited this as a prime example of “de facto deregulation.”

George W. Bush’s EPA, meanwhile, managed to avoid issuing stringent regulations for years. Green groups had to sue the EPA in 2002 before it began enforcing new ozone standards—and its plan was so weak it was rejected in court. In 2005, the Bush EPA proposed rules for mercury and other toxic emissions that would have delayed any significant crackdown for years. Three years later, an appeals court ruled that the EPA’s light mercury rule had evaded the Clean Air Act. Those delays help explain why Obama’s EPA is on a regulating kick now—there’s a lot of catching-up to do.

Once again, however, the agency is under fire. When Michigan Republican Fred Upton took charge of the House energy committee last winter, he vowed to make the EPA his main target, calling the agency’s coming carbon rules “an unconstitutional power grab that will kill millions of jobs—unless Congress steps in.” Other conservatives have gone further—Gingrich, now a possible presidential candidate, has called for abolishing the agency entirely, saying, “They are really in many ways hostile to all new technology, hostile to local community control, hostile to the business community, hostile to the marketplace.” The House budget that passed in February included provisions to slash the EPA’s budget by 30 percent, chip away at existing regulations, and prevent the agency from tackling global warming. While the Democratic Senate can block many of these items, Republicans will keep trying, putting pressure on the many conservative Senate Democrats—particularly those from coal states—who are nervous about excessive EPA regulation.

On the merits, there’s a good case for stringent pollution rules. The benefits of the Clean Air Act have typically far outweighed the costs: According to EPA estimates, a proposal to rein in smog-causing sulfur-dioxide and nitrogenoxide would cost polluters $2.8 billion per year by 2014, while providing as much as $290 billion in health benefits to the broader public (including 21,000 fewer cases of bronchitis, 23,000 fewer heart attacks, and up to 36,000 lives saved). Industry estimates of the burden of new environmental regulations have, historically, been wildly inflated. And the public wants regulation: In February, one bipartisan poll found that 69 percent of voters support stricter limits on air pollution.

Yet, with the EPA under intense pressure from Congress, environmentalists fret that the agency could go wobbly. “We’re concerned that—for example—the forthcoming rules on carbon pollution could get weakened to the point where they don’t really produce the changes in the energy sector that can and should be made,” says David Hawkins of the Natural Resources Defense Council.

Indeed, a close examination of the rules Obama’s EPA has issued so far yields a mixed record. On the one hand, some of the new regulations have been strong. The agency’s proposed rule on mercury emissions from power plants, unveiled in March, won praise from public health and green advocates.

But, in other areas, Obama’s EPA has been more circumspect. The agency has blown past several deadlines in setting new standards for ozone pollution. Regulations for storage of millions of tons of coal ash around the country—leftover toxic sludge of the sort that spilled over hundreds of acres of eastern Tennessee in 2008—remain in limbo. Groups like the Sierra Club have lambasted the agency’s new rules on power-plant cooling towers—which kill billions of fish nationwide by sucking up water from rivers and lakes—calling them much too flimsy. And, last fall, White House aides reportedly pressured the EPA to reconsider its rule for toxic emissions from industrial boilers and incinerators in order to address industry concerns about cost.

To be sure, not every revision or delay is nefarious. The EPA has a heavy caseload, and industry input can often produce genuine improvements. On the boiler rule, for instance, agency officials realized they could relax standards for smaller boilers—making it cheaper for companies to comply—while still achieving roughly the same health benefits. On other questions, though, such as the delay on ozone standards, there are signs that politics are intruding. After all, the scientific assessment that the safe level of ozone should be lowered to somewhere between 60 and 70 parts per billion hasn’t changed. “They want more time to look at more studies— but there aren’t new studies to look at,” gripes Frank O’Donnell of Clean Air Watch. “It’s a glaring example of cold feet.” Likewise, back in 2009, EPA head Lisa Jackson submitted proposed rules on coal ash to the White House for review. But, after meetings between the Office of Management and Budget (OMB) and industry groups—who insist that classifying coal ash as hazardous waste could mean billions in clean-up costs—the EPA has delayed its rule-making indefinitely. (OMB, for its part, says that its intensive review has been “a very regular, very normal deliberative process on a very complex rule.”)


The ultimate test will be what the agency does with its upcoming climate-change regulations. In 2007, the Supreme Court ruled that the Clean Air Act required the EPA to regulate heat-trapping greenhouse gases if they posed a threat to public health (which, most climate scientists agree, they do). The agency has already issued new fuel-economy rules for cars and light trucks up until 2016, but it has yet to come up with vehicle standards for later dates and rules for stationary sources. This year, the agency will propose standards for existing power plants and oil refineries. All told, the new EPA rules will likely cover about three-quarters of the country’s greenhouse-gas sources and, according to a World Resources Institute (WRI) report, could reduce overall carbon emissions anywhere from 5 percent below 2005 levels by 2020 to a 12 percent cut. (For reference, the United States pledged a 17 percent cut at the global climate talks in Copenhagen.)

But much depends on the choices agency officials make. “If the EPA’s feeling gun-shy over scrutiny from Congress, they may not want to use these rules to their full potential,” says Franz Litz, who wrote the WRI report. To take just one example, the agency could decide that older coal plants only have to make efficiency upgrades to curb pollution—in which case a modest cut in emissions is about the best that could be expected. Or the agency could recommend that coal plants co-fire their boilers with biomass—or even switch to natural gas—in which case the rules would prompt deep reductions. A lot also hinges on how much flexibility the EPA gives states to implement these cuts—if states are allowed to enact some sort of permit-trading program, they could get steeper cuts for less cost. “But,” says Litz, “the agency might not want to set up anything that looks like a cap-and-trade approach,” given that conservatives have turned “cap-and-trade” into a dirty phrase.

Few greens doubt the EPA’s commitment on environmental issues. What they’re less sure about is whether the president himself will spend political capital to stand up for the agency. So far he has been relatively tepid in his defense of the EPA. “You really do need the president leading and articulating what the essential values at stake here are,” says Kathleen McGinty, who chaired the Council on Environmental Quality in the Clinton White House. “Otherwise it’s very easy for a lot of these compromises to turn into capitulation.”

It took Clinton, McGinty notes, several years to get comfortable defending the EPA—and to make the case that environmental protection didn’t have to be at odds with economic growth. But, eventually, he did. In 1997, the EPA under Carol Browner issued strict new air-quality standards for smog and soot. Industry groups revolted—the Chamber of Commerce ran ads warning that the rules would make outdoor barbecues illegal. One trucking-industry official predicted “the end of diesel.” Republicans and conservative Democrats in Congress pledged to overturn the rules, and even some members of Clinton’s economic team balked at the measure. But Clinton stood behind Browner—after a great deal of arm-twisting by Al Gore—and the plan was eventually upheld in court. In the years since, reports have found that the soot standards could offer some of the biggest health benefits under the Clean Air Act. The rule survived, in part, because the president had the EPA’s back. Will that be true this time around?

Bradford Plumer is associate editor of The New Republic. This article originally ran in the April 28, 2011, issue of the magazine.

Follow @bradplumer on Twitter.