I testified this morning before the clean air subcommittee of the U.S. Senate Environment and Public Works Committee at a hearing about the D.C. Circuit's July 11th decision overturning EPA's "Clean Air Interstate Rule."
This is the second in a series of posts I will have on that important judicial and regulatory development, drawing upon the lengthy written testimony I submitted for this morning's Senate hearing. Today's post consists of the oral statement I delivered at the hearing.
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EPA’s “Clean Air Interstate Rule,” or CAIR, represented an important first step forward to reduce dangerous levels of SO2 and NOx emissions from power plants, and to reduce the devastating public health and environmental toll caused by these emissions.
NRDC and other public health and environmental groups, accordingly, had intervened on EPA’s behalf in litigation in the United States Court of Appeals for the D.C. Circuit, defending CAIR against industry challenges that sought to weaken CAIR, reduce its scope and effectiveness, and disrupt its implementation.
The July 11th decision by the D.C. Circuit vacating CAIR in its entirety was a significant setback to the public health and environmental gains embodied in CAIR, and the crucial need to reduce dangerous emissions from power plants in the eastern half of the country.
But the court’s decision also represents an opportunity to get it right where CAIR did not -- to take not just the first step but the necessary steps, cost-effective and feasible steps, to eliminate dangerous levels of power plant emissions and deliver healthy air to all Americans.
With the long-overdue strengthening of EPA's public health standards for PM2.5 in 2006 and ozone in 2008, we know now with greater urgency what we already knew in 2005 when CAIR was adopted: allowing power plants to produce air pollution at excessive and unhealthy levels for as long as two decades -- before reaching a 70% reduction target that still would remain unprotective -- imposes tremendous harms upon the American people. Even with the setback to CAIR represented by the court’s July 11th decisions, we can and must achieve greater than 70% reductions in SO2 and NOx emissions from power plants well before the end of the next decade.
I want to make one simple point about the court’s decision and CAIR, in order to highlight a mistake that we should not and cannot afford to make again. In faulting the unlawfulness of CAIR, the court realized that the Bush Administration had worked backwards from a political agenda to institute the emissions caps and design features of CAIR. In this case, that political agenda was represented by the Administration’s Clear Skies legislative proposal. The court found that EPA had not worked forward from the Clean Air Act to achieve the emissions reductions necessary to address transported pollution at the levels and according to the schedules consistent with Clean Air Act obligations to downwind states. Or consistent with the need to deliver healthy air to citizens in the affected states.
The mistake was to let a political agenda dictate not just how EPA carried out the Clean Air Act, but how far EPA went to reduce transported air pollution from upwind states to victimized downwind communities. How far EPA went to lead utility companies to spend reducing air pollution while other local businesses were being forced to spend far more to achieve far less pollution reduction. And finally that political agenda dictated how far EPA went to protect public health. At each turn, EPA stopped short of doing what was necessary, what was feasible, what was protective and – ultimately – what the law required, due to this political agenda.
We can do better. We must do better. Let me be very direct why.
EPA had projected that CAIR would avoid 13,000 American lives being cut short each year beginning in 2010, and avoid the loss of 17,000 lives each year starting in 2015. These are very impressive health gains that we are in danger of losing if we do not mandate the important pollution controls that CAIR would have required, and do so expeditiously.
My written testimony includes state-by-state breakdowns of the early adult deaths avoided under CAIR. For New York and Ohio, for example, 1,200 deaths would have been avoided in each state, each year beginning in 2010. And in 2015, 1,500 fewer people in each state would have had their lives cut short by power plant air pollution.
CAIR accomplished these significant health benefits by requiring power plant operators to spend, on average, $500 per ton of pollution reduced in 2010, and on average $700 per ton of pollution reduced in 2015. Meanwhile, air quality regulators today – and for many years in recent memory – are requiring other types of businesses in other industrial sectors to spend $3,000 dollars to $6,000 dollars, even $15,000 dollars, for the same ton of pollution reduced.
But the Administration refused to require power plants to achieve greater pollution reductions at modestly greater average costs per ton due to the Administration’s political agenda that the court later found to be unlawful.
If this sounds like an economically unsound approach to air quality – it is. But it is also an irresponsible approach to public health. Just contemplate the thousands upon thousands of additional American lives that we could save each year by bringing the amount that utility companies spend to reduce a ton of pollution more in line with the costs that other local businesses spend to reduce the same ton of pollution. Power plant companies still would end up spending much less per ton of pollution than other businesses but we could actually deliver healthy air, in a timely fashion, to the entire eastern half of the country and most of the western U.S. outside of certain challenging areas in California. And we would save tens of thousands of additional lives over the next decade.
One of the little understood consequences of the Administration’s political agenda that created CAIR, as well as actively harmful EPA rules associated with CAIR, is that thousands of additional lives were to be sacrificed to power plant air pollution each year in order to save utility companies compliance costs that were and are one half or one fifth or even one tenth the compliance costs being borne by local businesses in the Midwest and Southeast and New England. And these local businesses individually do not even emit one percent of the air pollution emitted by your typical power plant. So we are getting far fewer pollution reductions at far greater costs per ton from local businesses than from utility companies.
The current Administration has managed to avoid answering for this – for the harmful, economically irrational and fundamentally unfair political choice that lies at the heart of its 8 year long air pollution agenda for the electric power industry.
The next administration and Congress will now have the opportunity to confront those facts and concerns honestly and fairly, in order to solve the country’s air quality problems in the most effective way possible.