Letting Utility Companies Off the Hook
thenation.com
03/12/2002
Thirty-two years ago, the United States adopted new antipollution rules, the Clean Air Act. The rules exempted dozens of older coal plants, some of them built in the 1940s and 1950s--provided those plants did not undertake major expansions. The idea was that if a company has money to expand, it also has money to install the same antipollution technology its competitors are required to use.
But some utility companies did quietly expand those plants without making them cleaner. At least, that's what the Environmental Protection Agency says: In 1999, it brought lawsuits against nine companies--owners of about fifty dirty coal plants--for violating the CleanAir Act. There are more than 1,000 coal-fired power plants in America, as well as hundreds of natural-gas-fired plants. But accordingto Eric Schaeffer--until last week the head of the EPA's enforcement office--just those fifty-odd plants are responsible for one-fourth of the poisonous sulfur dioxide in our air. The EPA estimates that the acid rain and smog from those few dozen plants is responsible for 10,600 premature deaths every year, as well as thousands of cases of childhood asthma and chronic bronchitis. The EPA's lawsuits were an ultimatum: Install standard late-twentieth-century antipollution equipment, or else.
And it seemed to be working. By December 2000 the EPA had announced out-of-court settlements with three of the nine targeted companies--Virginia Electric Power Company, Cinergy and Tampa Electric Power--that collectively represented about a fifth of the sulfur emissions EPA considered illegal.
Enter George W. Bush and Dick Cheney. The new Administration promptly announced that it was unenthusiastic about those lawsuits and wanted them "reviewed" [see William Greider, "For Utilities the Fix is In," The Nation, July 23/30 2001].
This recommendation was enshrined in the house-that-Enron-built: Cheney's energy plan, the genesis of which remains a state secret. And while Attorney General John Ashcroft eventually gave a thumbs-up in his review of the suits, energy lobbyists by now have taken the measure of their friends in the White House. Cinergy and Virginia Electric--pens poised over the announced settlements--paused. And then walked away. Why settle if the other side isn't serious?
Why indeed. Recently, after twelve years with the EPA, Schaeffer resigned his post in protest. In a letter to EPA Administrator Christine Todd Whitman, Schaeffer cited the new White House budget, which he said would eliminate 200 enforcement positions and leave the EPA "desperately short of the resources needed to deal with the large, sophisticated corporate defendants we face." He also cited White House actions and statements that he said scuttled the possibility of settlements to enforce the Clean Air Act. Schaeffer's resignation letter to his staff was forwarded to the news media, and also Congress. Schaeffer, 47, was surprised at the ensuing hullabaloo.
"It got a huge reaction. I'm kind of stunned by it," he said in an interview. "It seems to have hit a chord."
On Thursday, March 7, Whitman and Schaeffer faced off. The venue was a Senate Governmental Affairs Committee session largely inspired by Schaeffer's abrupt departure. In 2000, the EPA and the Justice Department jointly announced settlements with electric power companies. These settlements implicitly acknowledged that the companies had broken the law--and in so doing had been indirectly causing hundreds of deaths every year. And even as they recognized this problem, the settlements solved it: The companies would simply install the same antipollution technology required of everyone else. That's a rare thing in environmental regulation, a quick and clear result.
Or it could have been, had the EPA been able to hold on to those agreements, and perhaps use them to leverage new settlements. Instead, EPA Administrator Whitman basically gave up the program with her testimony that day: When Senator Fred Thompson suggested that settlements weren't happening because some of the EPA's cases were weak, and cited a court case against the Tennessee Valley Authority, Whitman seized the chance to run down her own enforcement wing. "If I were a plaintiff's attorney, I wouldn't settle anything until I knew what happened with that case [against the TVA]," she said.
Did the EPA Administrator just say her office is suing but doesn't have the goods? Did she just publicly suggest companies she is suing NOT settle and keep ignoring her? Schaeffer figuratively threw up his hands. "If I were a plaintiff's lawyer, I would not settle?" he repeated. "I have not heard that in twelve years [at the EPA]. If that is not a clear signal to the utility industry to stand down...I don't know how else to read it." He was echoed by Gregory Wetstone of the Natural Resources Defense Council, an environmental lobby group. "The signal here," Wetstone said, "is that the cop is off the beat." |
