SENATE COMMITTEE ON THE JUDICIARY

Joint Hearing on New Source Review Policy,

Regulations and Enforcement Activities

July 16, 2002

I am pleased to be here with my colleague and co-chair from Vermont. I believe this is the first joint Judiciary-EPW hearing ever held. But, the gravity of the Administration’s actions on New Source Review, or NSR, requires scrutiny on both legal and environmental grounds.

I am also glad to see one of my successors, Vermont Attorney General William Sorrell, is here today. I appreciate his willingness to testify along with the other distinguished witnesses.

I wish we were meeting jointly on a happier occasion. But these changes in NSR regulations appear to be the biggest regulatory rollback in the history of the Clean Air Act. They seem designed to subvert the Federal government’s own enforcement actions that would otherwise remove millions of tons of pollutants from the public’s air space.

They also seem intended to give away the billions of dollars worth of health benefits that NSR provides every year. Under these proposals, far fewer plants, maybe 50% or less, would have to apply pollution controls.

In exchange for these giveaways, what would the public get? More premature deaths, more lung disease, and more polluted landscapes. That doesn’t seem like a fair trade to me.

I’d like to place in the Record a letter from Ben Rose of the Green Mountain Club and the Hikers for Clean Air. Their letter clarifies that such NSR changes will foul the air, "shroud our state and national parks in haze," and acidify our lakes and streams.

The basic concept of NSR is one of constant improvement. That means industry should emit less and less pollution as time passes, as investments occur and as technology develops. The Clean Air Act doesn’t provide loopholes for non-routine maintenance or picking decades-old baselines or any of the other loopholes that this Administration is trying to finalize.

When "any physical change in a stationary source increases the amount of any air pollutant by that source" then pollution controls must be applied. That’s simple and straightforward. And, it’s the law.

Unfortunately, aside from the dubious legality and the public health costs of these proposed NSR changes, the Administration’s poor handling of this matter has created an atmosphere of distrust.

Even if these proposals were legal or justified, I would be suspicious.

To my knowledge, no attempt was made to reach consensus among the various stakeholders or consult with the Committees of jurisdiction before issuing this reform package. Overall, this has been a much different, much less open rulemaking process than the one used by the Clinton Administration.

This Administration seems to have largely ignored comments from public health advocates and the states, while listening mainly to industry. The Senate Environment and Public Works Committee’s legitimate requests for information on this matter and others have been treated disrespectfully and disdainfully by this White House.

While the EPA has recently begun to provide information in response to our December request, 90% of which is already in the public docket, the Department of Energy has been very unresponsive.

We will be reviewing the additional material that EPA has promised to deliver by the end of this week. Then we will decide on whether a subpoena is necessary. I hope it doesn’t come to that, but this White House may give the Committee and Congress little choice.

I will note, however, that I do not recognize any validity in the Agency’s claim, made largely at the White House’s insistence, that the documents we are requesting cannot be shared before the rules become final. There is no precedent or protection provided by statute or case law to defend that position.

I am saddened at what the White House is doing to the Environmental Protection Agency. It seems intent on gagging and binding this "independent" agency. This prevents us from working together in any kind of productive and cooperative manner. Even communication at the staff level has been intentionally stifled.

More than a year ago, the President directed the Agency to prepare a 3-pollutant legislative proposal. The Agency developed and analyzed a proposal that it thought was defensible from an air quality and public health perspective. That "straw proposal" from August 2001 disappeared almost as soon as it was floated.

Then, in February of this year, a new version of targets and timetables was announced, one that looked quite different and substantially less protective. But no environmental or economic justification for those numbers had been done for the Congress or the public to see. We still don’t have legislative language or any comprehensive analysis or documentation on it.

NSR fits into a similar pattern. The Clinton Administration did a draft regulatory impact analysis in 1996 with its proposed regulations. Many years of stakeholder discussions took place where lots of commentary and analysis was shared. That Administration ended without a final rulemaking because of many concerns, including environmental and legal questions.

In June of this year, this Administration announced its NSR reform package. It did not conduct stakeholder meetings on this rulemaking package. It provided no final regulatory impact analysis or any environmental or public health assessment. Worse yet, the Agency’s staff indicated that no quantitative analysis had been done or would be forthcoming. That doesn’t seem to comport very well with the requirements of the Executive Order on regulatory review, or with the EPA’s own internal documents.

This NSR reform package is a recipe for litigation. If these changes become final, they will be overturned by the courts or perhaps by Congress. The Agency will not be due any deference in court on its expert opinion, because it has not justified how these changes can improve and protect public health.

Except for a brief period, Congress has counted on EPA to be the "green" eye-shades people for thirty years. The Agency’s job is to make sure that pollution is accounted for and reduced. The EPA is supposed to keep corporate polluters honest and look out for the public good.

But given these NSR changes and the White House’s anti-disclosure policy on information, it is hard not to think that the executives are overruling the "green" eye-shades people and trying to cook the books.

Instead of greenbacks, we’re talking about millions of tons of pollution that severely damages the health and welfare of the public.

Thank you.