Press Releases & Bulletins

TO: Editors and Reporters Covering the Environment
DATE: July 25, 2002


We were dumbstruck to learn yesterday that the Pew Center On Global Climate Change -- a nonprofit group that works with industry on "cooperative approaches" to "advance the debate" on climate change -- is issuing a report today critical of a key enforcement tool of the Clean Air Act -- new source review.

We were further dumbstruck, however, when we learned that the Pew Center, funded by the Pew Charitable Trusts, had hired industry lobbyists to write the report! These lobbyists have worked separately (for chemical and electric power industry clients) to weaken or eliminate this key enforcement tool.1 And their law firm, Van Ness Feldman, proudly boasts on its internet site that:

"The firm's experience and understanding of state and EPA enforcement policies and personnel have allowed Van Ness Feldman to advise clients on creative ways of responding to enforcement proceedings. We counsel clients in actions brought by agencies and in review proceedings concerning conditions (or denials) of permits. In each case, we help clients evaluate the merits of agency claims and the risks of litigation. The firm then develops litigation, regulatory, and/or legislative strategies for prompt resolution of the matter.

"Most recently, we are representing electric utilities and refineries targeted by the EPA New Source Review enforcement initiatives." [emphasis added]

In the Pew report, the industry lobbyists repeat electric utility industry propaganda that new source review has discouraged power companies from "undertaking efficiency improvements" and suggest that policy makers should "distinguish investments that raise conversion efficiency from those that simply increase the capacity of existing coal-fired plants."

As one expert environmental lawyer explained it to us, "this is a false and misleading distinction." 2

We can't fathom why the Pew Center would seek to promote these industry views. We can only speculate that the leaders of the Pew Center are less interested in the truth than in aligning the organization with the goals of some of its industry partners -- including American Electric Power and Cinergy, which face Justice Department lawsuits for alleged violations of new source review. Obviously they don't realize that tough and continued enforcement of the Clean Air Act would also lead to a reduction in greenhouse gas emissions, which is their ostensible goal.

1 The report's authors are Douglas W. Smith, Robert R. Nordhaus and Thomas C. Roberts of Van Ness Feldman, and Marc Chupka of The Brattle Group. Nordhaus has lobbied for American Electric Power, which is being sued by the Justice Department for allegedly violating new source review. Smith and Roberts lobby for the American Chemistry Council, which has applauded EPA's recent announcement that it would change new source review. The chemistry council also called on Congress last month to provide "relief" from the Clean Air Act. Chupka notes on his resume that he recently "has assisted clients in preparing for New Source Review litigation."

2 The lawyer went on to say: "The reason is that investments that simply raise conversion efficiency -- without increasing capacity or utilization -- should not trigger NSR, because NSR is ONLY triggered by significant increases in annual (total) emissions. In other words, energy efficiency improvements that decrease emissions per unit of output and decrease -- or maintain -- overall emissions do not trigger NSR today and they never have and they never will. What this paragraph is arguing for implicitly is the ability to "raise conversion efficiency" and raise overall emissions levels without triggering NSR to control those increased emissions levels. From an NSR perspective, those conversion efficiency improvements that increase total emissions (through increased utilization, expanded capacity) are no different from increases in the capacity of existing coal-fired plants that increase total emissions. The omission of these basic points -- that NSR is triggered only by increases in overall emissions, and that energy efficiency improvements that maintain or decrease emissions do not trigger NSR -- is strong evidence to me of the dishonesty of (these sections of) the report's analysis and the pro-industry, anti-NSR agenda in these passages. (For example, the utility industry has long argued that NSR should be triggered only by increases in emissions per unit of production, a test whose defining characteristic is that it is never triggered, while overall emissions levels are allowed to increase to the maximum, theoretical capacity of the units.)"

As always, please don't hesitate to call (202) 785-9625 if you'd like to discuss these or related issues.