Senator Bob Smith

Ranking Member, EPW Committee

Opening Statement on New Source Review Policy,

Regulations, and Enforcement Activities

Tuesday, July 16, 2002

Thank you Mr. Chairman.

This must be an election year, because there is definitely politics in the air.

NSR is a nightmare that does little to protect the environment; in fact it often is the mechanism that delays upgrades that would provide for cleaner air. None-the-less, in 1999, just days after I became Chairman of the Environment and Public Works Committee, I opposed a rider that would have ended NSR enforcement cases. I opposed the rider because it is my belief that we need to set clear environmental rules and prosecute violators.

At the same time, I recognized the merits of the amendment. It sought to avoid yet another round of litigation. Lawsuits make lawyers richer, but do little to provide for cleaner air – there is a better answer.

NSR – which is anything but clear – has been the subject of near-continuous litigation and revision since its enactment in 1977. And it’s no wonder – a few pages of federal law led to a 20-page regulation that needed to be “clarified” by more than 4,000 pages of guidance documents.

This shouldn’t be a partisan issue either – Its worth reminding my colleagues on both sides of the aisle that the Clinton Administration realized the problems with NSR. That Democratic Administration - led by Vice President Gore - proposed NSR reforms that are now included in the Bush proposal that is being so roundly criticized.

Although I do not believe regulatory efforts alone are enough of an answer, I do not fault President Bush in the least for trying to create order out of this jumbled heap of nonsense some generously call an environmental program. Unfortunately, while we have yet to see even drafts of the final or proposed rules, we have already heard threats of future lawsuits.

That’s in addition to all the cries of this being “the biggest rollback of the Clean Air Act.” Biggest rollback? On what data and analysis are those claims based?

It was just in the last week and a half that the Committee received 13 boxes of information and analysis from the Administration’s NSR review – long after claims of a “rollback” were splashed across our nation’s newspapers and television news shows. And the majority has indicated that even thirteen boxes are not enough – they may decide to issue a subpoena to get more.

If we don’t have enough analysis yet, how can we conclude that this is a rollback of the Clean Air Act?

If there is enough information to support such a conclusion, why would we need to issue a subpoena?

It seems that, again, environmental politics is trumping a real environmental debate that could lead to cleaner air. Real environmental progress would be working together to enact consensus multi-emissions legislation for electric utilities. Real environmental progress would be working together to build on the success of the Acid Rain Program, rather than fighting to keep a program that has reduced maybe a pound of emissions per lawyer involved.

Well that’s what I’ve tried to do. That’s what the President has proposed doing. But politics dictate that the majority must oppose a consensus approach. While NSR has served as an employment service for Clean Air Act lawyers, it has produced very little in terms of environmental benefits.

What we need is a legislative solution.

That solution is a market-based, cap-and-trade program modeled on the Acid Rain Program – a program with clear emission reduction levels and compliance dates set in law – a program that avoids needless litigation and delay – and a program that provides industry with incentives to make deeper and faster reductions than required.

That’s my goal, and that’s what I think we all should be working to achieve – the most reductions with the least litigation and delay.