WHY THE CLEAN AIR ACT NEEDS NEW SOURCE REVIEW
By Leon G. Billings
President Bush has proposed to repeal a critical component of the Clean Air Act, a component designed to achieve the law's key objectives, including protection of public health.
As a counter to the "spin" by the White House and its fund-raising friends in the energy industry, it might be useful to recall why and how Congress adopted this provision in the first place. The dispute is over "new source review" -- techno-speak for one of the 1970 Clean Air Act's most innovative provisions.
When Congress wrote the landmark 1970 law, then Senator Edmund Muskie of Maine, the law's primary parent, sought to make sure that public health protection was its legal foundation. But when it came to specific regulation of the electric power industry, Muskie faced two competing realities: (1) the influence of the coal industry and Midwestern senators, including his committee chairman, Jennings Randolph of West Virginia; and (2) the economic realities of air pollution investment.
Randolph did not want to impose any pollution controls on electric power plants if that would jeopardize the jobs of unionized high sulfur coal miners in Appalachia. His kinship with both the mining industry and the mine unions made him a formidable foe of aggressive regulation of power plant emissions. And Randolph knew that the power companies would be able to disperse their pollution through super-tall smokestacks and so could probably minimize actual pollution controls.
At the same time, Muskie knew it would be a hard sell to require pollution controls on major existing sources of pollution because companies had already made significant investments in those facilities. But he also knew that when business wanted to invest in a new plant, it would be harder for them to argue against state-of-the art pollution controls. Muskie also knew that the unions and most of his colleagues didn't want companies to be free to shop for "pollution havens" and to relocate jobs in states where pollution control was not a priority.
And so Muskie forged a compromise -- one aimed not only at protecting public health, but at promoting the development of pollution control technology and assuring its widespread application over time. His plan, adopted unanimously by the Senate, required new industrial facilities, including electric power plants, to use the best available pollution control technology.
In a logical extension of that theory, Muskie and his colleagues also demanded that best available control technology be required for any manufacturer or electric company which invested in a "major" modification of an existing plant. That way, as companies modernized factories and power plants, they would also invest in modern air pollution controls -- and thus reduce their pollution over time. Muskie and his colleagues intended that, as industry rebuilt existing factories, new, modern pollution controls would be installed.
As the Clean Air Act evolved, this "new source review" provision took on added importance. In 1977, Congress decided that new plants -- or major plant upgrades -- should be reviewed to make sure that they did not harm communities with existing air pollution problems. Similar reviews were required to prevent pollution that could damage national parks and wilderness areas. Later, during the Clinton Administration, new source review became the mechanism by which new sources were reviewed to make sure that they did not mar scenic vistas in national parks.
In 1999, following a massive investigation, the Justice Department brought suit against major electric power companies and other big polluters, accusing them of illegally ignoring new source review and, in effect, rebuilding dozens of electric power plants without installing modern pollution controls. Were he alive today, Ed Muskie would have applauded the decision to enforce the law, finally.
But now, the Bush Administration seeks to eliminate the requirement that new pollution control technology follow new plant investment. And no wonder: powerful polluters such as the Southern Company are betting that their political connections -- including paid lobbyists Haley Barbour, Republican National Committee Chairman Mark Racicot, and former White House Counsel C. Boyden Gray -- can get them off the hook.
For nearly three decades, Clean Air Act antagonists have tried to undermine health-based clean air standards. The courts have now slammed the door on those attacks. So, the opponents of clean air have found a new approach to minimize pollution control investment and maximize the opportunity to pollute the environment.
Without new source review, there will be no protection for America's endless vistas in the West. Without new source review, there will be no protection for our parks and wilderness areas. Without new source review, a fundamental technology-forcing aspect of the Clean Air Act will disappear. And without new source review, there will be no requirement that either new or significantly altered existing pollution sources maximize their pollution reduction.
(Leon G. Billings, president of the nonprofit Clean Air Trust, was the top environmental aide to Senator Edmund Muskie. He also serves as a member of the Maryland Legislature. Contact him by phone at 202-785-9625)