Issue Date: December 22, 2008
Bush’s Legacy At EPA
UNDER PRESIDENT George W. Bush, the Environmental Protection Agency softened regulations that were hindering industry, issued regulations that were deemed industry-friendly, shuttered the agency’s technical and scientific libraries, and reduced the information companies must submit on their release of toxic substances. The agency battled environmental activists and states in court, and its staff scientists reported political interference in their work. Although EPA enacted regulations and policies promoting environmental safety, some of its actions have also hindered the agency’s future ability to regulate.
The Bush EPA became less independent than its predecessors and more closely tied to the White House’s ideology. For nearly eight years, EPA has served the political agenda of the White House even if that has meant ignoring or acting against the mandates of environmental laws, says Jeff Ruch, executive director of Public Employees for Environmental Responsibility.
Bush was clear from the outset that he wanted to relax some environmental regulations that industry found onerous. During his first year in office, the White House Office of Management & Budget (OMB) asked industry which federal regulations it thought needed to be changed. Many of OMB’s recommendations targeted EPA rules. At OMB’s direction, EPA worked to implement suggestions from the chemical and utility sectors.
Nonetheless, progress on these industry-sought regulatory changes has been slow. For instance, only in October did EPA at last come through for chemical manufacturers on their suggestion to allow firms to recycle or reuse some materials that they formerly had to pay to have treated as hazardous waste (C&EN, Oct. 13, page 11).
“We were starting to lose hope” that the agency would complete this regulatory change, says William E. Allmond IV, director of government relations for the Synthetic Organic Chemical Manufacturers Association (SOCMA), a trade group.
EPA also worked hard on a rule utilities wanted that would allow companies to revamp old coal-fired power plants so the facilities could operate for longer hours without triggering requirements for the installation of modern air pollution controls. Earlier this month, the agency abandoned the rule, citing lack of time to finalize it before the end of Bush’s second term (C&EN, Dec. 15, page 24).
Efforts to relax existing EPA regulations are likely providing a smaller overall benefit to industry than expected. But less dramatic bureaucratic changes in policy that the Bush Administration instituted may provide greater relief to industry over the long haul because they curtail EPA’s ability to regulate.
Through a 2007 presidential directive giving the White House greater control over regulation, Bush made it harder for all federal agencies, including EPA, to issue rules. President-Elect Barack Obama has indicated he plans to overturn that presidential directive.
BUT THE POLICY changes that Bush appointees instituted at EPA may be more difficult to alter. Such changes must be replaced by other policies and cannot simply be eliminated. These Bush-era policies make it harder for EPA to produce science-based information that is relevant to regulators, says Rick E. Melberth, director of regulatory policy at OMB Watch, a group that tracks federal regulatory activities.
For instance, the Bush Administration’s cut in federal funding for pollution monitoring is likely to impair EPA’s ability to make science-based regulatory decisions. Without monitoring data, the agency can’t determine whether the nation needs stronger environmental regulations. In addition, the Bush Administration quietly shut down the agency’s technical and scientific libraries, which were used by EPA staff members (C&EN, Aug. 28, 2006, page 24). The move drew outrage from Congress, which ordered the libraries restored, although some of the holdings from the closed libraries were destroyed.
Under Bush, EPA is also allowing many companies to submit less information than they have in the past about their releases of toxic substances. The move takes a serious bite out of community right-to-know information while providing only small savings to industry, according to the Government Accountability Office (GAO), Congress’ investigative arm.
In addition, the Bush Administration has instituted a new procedure for reviewing and revising health-based limits for air pollutants. Bush officials say it will allow EPA to complete reviews faster, meaning it is less likely to miss deadlines established in the Clean Air Act. But the new procedure diminishes the input of agency scientists and the Clean Air Scientific Advisory Committee, a congressionally mandated panel of outside experts, critics say, and it also boosts the sway of political appointees.
Meanwhile, in April, EPA revised its policy on how it assesses health effects from chemicals in the environment. The policy will slow down the assessment process and allow federal polluters such as the military and the Department of Energy to influence what is included in EPA’s conclusions, GAO says. GAO is recommending that the Obama Administration change this policy.
Key regulations EPA has issued in the past eight years have focused on the Clean Air Act. The efforts, however, have not sat well with federal courts. Rules under this law are among the most costly to implement but can provide enormous health benefits to the public.
SOME SAY the clean air regulations issued under Bush have made a difference. “Did the environment get better or worse during the past eight years? I think a fair-minded assessment would be that it got better,” says Scott Segal, director of the utility industry group the Electric Reliability Coordinating Council.
Emissions of each of the six most widespread air pollutants—carbon monoxide, lead, ground-level ozone, nitrogen oxides, particulate matter, and sulfur dioxide—fell during the Bush years, Segal says. “If you look at the physical data and leave politics aside, these continued reductions seem to indicate that the environmental cop was on the beat,” he says.
Others say the positive environmental changes have little to do with the Bush Administration. Most air quality improvements seen in the past eight years have come from regulations issued by the Clinton EPA but that took effect after 2000, according to Frank O’Donnell, president of Clean Air Watch, an environmental group.
What’s clear is that the Bush Administration tried to cut emissions from power plants, a major source of U.S. air pollution that affects millions of Americans. The White House pushed a program that caps emissions overall, rather than forcing each facility to clean up. Under this scheme, plants that make deep cuts in emissions can sell allowances to companies that don’t clean up.
Efforts to enact the Bush scheme, however, were dogged by inaction in Congress. And even after the Administration found ways to achieve its emissions goal through a pair of regulations, a federal appeals court voided the agency’s actions.
The Administration’s first stab at implementing its capped-emissions program was the Clear Skies Initiative, a 2002 legislative plan to reduce emissions of sulfur dioxide, nitrogen oxides, and mercury from power plants. Critics, backed by the National Research Council, said this White House plan would curb emissions less than existing Clean Air Act requirements. The chemical industry, meanwhile, supported the Administration’s efforts because it encouraged utilities to stick with coal rather than switch to natural gas and drive up the price of this key feedstock.
The legislation died in 2005 after a Senate committee deadlocked, in large part because some lawmakers wanted to add carbon dioxide, a greenhouse gas, to the emissions controlled by the bill. The White House next turned to EPA to institute as much of the President’s Clear Skies Initiative as possible through regulation under the Clean Air Act.
In response, the agency in 2005 issued two rules that together were, arguably, the Bush Administration’s greatest pollution control accomplishments, at least until they were voided by a federal court.
One regulation created a cap-and-trade program for mercury released from coal-fired power plants. This was the first regulation of utility mercury emissions anywhere in the world. But it was attacked as potentially creating hot spots of the neurotoxic metal around facilities that purchased allowances instead of cleaning up their mercury emissions.
The other rule cut power plant releases of NOx and SO2, which, respectively, lead to the formation of ground-level ozone and particulate pollution. But because of the limitations in the Clean Air Act, the rule applied only to utilities in 28 eastern states.
This year, a federal appeals court threw out both rules in their entirety. In both decisions, the court found that the regulations violated the Clean Air Act, and it told the agency to start from scratch (C&EN, Feb. 18, page 6, and Oct. 20, page 46). The loss of the rule to cut ozone and particulate matter is now wreaking havoc on states trying to meet federal air quality standards, on utilities installing pollution control equipment to comply with the regulation, and on the health of Americans, environmental advocates say.
Other Bush regulations under the Clean Air Act fared badly in court as well, getting tossed out because they contradicted the plain wording of the Clean Air Act. These legal losses have racked up what many see as a significant losing streak for EPA (C&EN, May 5, page 34). They add up to “a lot of lost opportunities” for further cleaning up the air during the eight years of the Bush Administration, O’Donnell of Clean Air Watch says.
The string of unfavorable and, in some cases, excoriating judicial decisions against EPA will have serious repercussions for the agency when it defends other Clean Air Act rules before federal courts, says Eric V. Schaeffer, executive director of the Environmental Integrity Project, an advocacy group founded by former EPA attorneys that works to establish more effective enforcement of environmental laws.
“They’ve ticked off the court,” Schaeffer says. In future cases, federal judges are more likely to closely scrutinize the agency’s regulations and are less likely to afford EPA deference in its choices, Schaeffer says.
DESPITE LOSSES in many high-profile cases, the Bush EPA has issued several narrowly targeted Clean Air Act regulations that have withstood legal challenges. These include EPA’s standards for emissions of nitrogen oxides from aircraft and emissions limits from heavy-duty diesel engines. These regulations will help clean up the air in years to come.
But decisions by the Bush EPA regarding national standards for air pollutants will adversely affect people for years, public health advocates say. Bush’s current EPA chief, Stephen L. Johnson, is the first administrator ever to set a health-based standard for how clean the air should be that is weaker than what the agency’s Clean Air Scientific Advisory Committee recommends. Johnson has done so twice.
In the first instance, the science advisers recommended revising the annual national standard for fine particles of 15 µg/m3 of air to between 13 and 14 µg/m3. But in 2006, Johnson decided to retain the less stringent standard, which dates to 1997.
Then, in March, EPA tightened the standard for ozone pollution from 0.08 parts per million to 0.075 ppm. Industry groups, including the American Chemistry Council (ACC), a chemical trade group, argued that the older standard was sufficient to protect health (C&EN, March 17, page 12). The science board, meanwhile, had advised EPA that to protect millions of people susceptible to respiratory problems, the standard should be even tighter, between 0.060 and 0.070 ppm.
Public health advocates cite the fine particulate standard as the Bush EPA’s most harmful move. But the agency’s action that provoked the greatest outcry came in December 2007, when Johnson refused to allow California to regulate greenhouse gas emissions from new cars and trucks.
Johnson planned to adopt at least part of California’s request as EPA’s staff had recommended. But he changed his mind after consulting with the White House, a former EPA official told Congress. This about-face handed a victory to automakers, which fiercely opposed the scheme, and drew ire from 17 states that planned to adopt California’s standards, as well as from environmentalists and many Democrats in Congress.
Meanwhile, EPA’s enforcement of regulations was uneven during the Bush Administration. EPA’s enforcement efforts had “a fairly steep and steady decrease” during Bush’s two terms, says Ruch of the federal employees’ group.
During the first six years of the Bush Administration, EPA’s enforcement efforts were slack, Schaeffer says. But in the final two years, Schaeffer adds, Granta Nakayama, a Bush appointee, headed the agency’s enforcement office and boosted EPA’s crackdown on environmental lawbreakers.
IN ADDITION, SOCMA’s Allmond praises the Bush EPA’s Office of Enforcement & Compliance Assurance for continuing an outreach effort begun under President Bill Clinton that helps companies comply with myriad environmental regulations.
Two other notable items in Bush’s EPA-related legacy are the action on perchlorate in drinking water and the demise of an advisory panel.
After years of debate, EPA made a preliminary announcement in October that it wouldn’t limit the amount of perchlorate, a component of rocket fuel, allowed in drinking water. This decision hands a victory to the Pentagon and the National Aeronautics & Space Administration, which are responsible for contamination of some aquifers and waterways with the chemical. As C&EN went to press, EPA was expected to make this decision final by the end of 2008, a move that would lock the decision in place for years, even if the incoming Obama Administration wants to change it.
And after only four years of actual operation, the National Pollution Prevention & Toxics Advisory Committee has faded. Michael P. Walls, ACC managing director, praises the Bush EPA for forming the committee in 2002. The panel gave the agency advice about chemical regulatory policy and consisted of representatives from the chemical industry, environmental groups, academia, and state and tribal regulators. “It was an honest effort by EPA to reach out and gain stakeholder input,” Walls says, calling the panel “a singular achievement” of the agency in the past eight years.
But EPA let the panel die. It went into limbo in late 2006 after two representatives of environmental groups and an academician resigned. A year later, the agency quietly announced that it had terminated the committee (C&EN, Dec. 10, 2007, page 27).
During Bush’s tenure, EPA has been weakened politically by a White House that exercised strong central control over federal regulatory agencies. The Administration’s keystone pollution control regulations—to reduce emissions from power plants—required years of federal workers’ efforts and millions in tax dollars. But a federal appeals court deemed them a waste of time and money, saying the Bush Administration had failed to stick to the requirements of the Clean Air Act. Meanwhile, through policies that it has instituted, the Bush Administration will make it harder for EPA to issue future regulations that advance its mission to protect human health and the environment.
If the incoming Obama Administration wants to alter these rules and policies, it will take years to go through the proper procedures to do so. “It’ll be hard to undo Bush’s initiatives,” Ruch says.
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