haq I know this is kind of long but since you have seemed to support taking care of the environment in a few of your previous posts I thought you might find it interesting. If not at least you can't say later that you would never have kept touting Bush Jr if you had known it because you had never seen anything like this.
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Texas Observer
How a Bill Becomes a Law
By Nate Blakeslee
Take a deep, deep breath. On behalf of Governor Bush and the Lege, the citizens of Texas have been volunteered to breathe increasingly dirty air for yet a few more years.
Thanks to political pressure from the Governor on an already supine Legislature — and a confounding last-minute surrender from the Democrats — the so-called “grandfathered” industries remain substantially free to continue polluting Texas air as they have for the last thirty years. Conceived in secrecy, nurtured by campaign cash, and delivered in a back room, the inside story of the Governor's grandfather bill is a lesson in how policy is brought to life in Texas.
Much of the story can be found in the records on Peter Altman’s desk. Altman is the executive director of a statewide environmental group known as the Sustainable Energy and Economic Development Coalition, which focuses primarily on air pollution from big power companies. For several months, SEED and Altman, along with Neil Carman of the Sierra Club and others, have been following a trail of memos, meeting minutes, faxes, and letters snaking out of the Governor's office. That paper trail traces the shadowy birth of the Governor's air pollution policy, the centerpiece of which is his voluntary emissions reductions program for grandfathered polluters.
Grandfathered plants predate, and thus are exempt from, pollution control provisions of the Texas Clean Air Act of 1971. For years the Texas Natural Resource Conservation Commission has shielded industry (and itself) from criticism by hiding the fact that grandfathered emissions account for roughly one-third of industrial air pollution in Texas, or almost one million tons per year. Due to dangerously high levels of nitrogen oxide (NOx, the key ingredient in smog), all major metropolitan areas in the state are currently or will soon be in “non-attainment” status, as defined by the Environmental Protection Agency — meaning they must take steps to clean-up or face federal sanctions.
Heightened public awareness forced the Governor to take a stand on grandfathered facilities, but he has repeatedly insisted that any industry permitting program must be voluntary. The Governor's program was encapsulated in Senate Bill 766, which, following a precarious journey through a skeptical House bent on closing the grandfather loophole once and for all, somehow made it back to the Governor's desk essentially intact — loophole and all — to become a shimmering green arrow in Bush's presidential quiver.
Don't look for any real greens at the victory celebrations. The documents that Altman and his colleagues have recovered, despite the Governor's stonewalling, reveal the true story of Bush's air pollution policy: how Bush quietly shunted aside T.N.R.C.C. proposals for an end to grandfathered pollution, pushing instead his own toothless program of voluntary compliance; how he hand-picked two oil executives to craft a plan that fit industry needs; how a working group of grandfathered companies met in secret for six months — with no public input or representatives of the environmental movement — to create the new program; and finally, how the Governor's staff supervised the program's transfer to the T.N.R.C.C. for “further development,” including belated and sham public input, and eventually the drafting of legislation by, of, and for grandfathered industries.
The paper trail begins in late 1996, with the minutes of a December meeting convened, at the Governor's behest, by T.N.R.C.C. Commissioner Ralph Márquez. Present at the meeting were eleven of the largest grandfathered polluters in the state — including Texas Utilities, Houston Lighting and Power, and the Texas Oil & Gas Association (which represents major producers in Texas). The minutes of meetings held in December, January, and February clearly show two things: first, that the agency envisioned putting an end to the grandfather exemption in Texas, because (according to notes from the February 7 meeting) agency representatives were convinced that the issue “will not be resolved … by a totally voluntary program”; and second, that industry was completely unprepared for that eventuality. After twenty-eight years, Why now? complained the company reps in the working group.
To which the Governor responded, Why indeed? In a January 14 memo, the Governor's representative at the meetings, environmental director John Howard, advised Bush that industry was concerned that “the TNRCC is moving too quickly” and “may rashly seek legislation this session.” The Governor decided to try another tack. In early March, Bush asked two oil company presidents, V.G. Beghini of Marathon Oil Company and Ansel Condray of Exxon, to outline a completely voluntary program tailored to the needs of the industries involved. (Altman and his colleagues pieced together the subsequent events from records provided by the T.N.R.C.C. The group has filed suit to obtain records they believes the Governor is withholding, including material from at least seven meetings attended by environmental director John Howard.) While the original working group continued to meet, Beghini, Condray, and Howard of the Governor's office met in secret to develop a working proposal.
On June 19, with an essentially completed product in hand, Condray and Beghini invited a group of two dozen industry reps to a meeting at Exxon headquarters in Houston. Jim Kennedy of DuPont described the scene in his notes from the meeting: “It was a very strange meeting to me, in that the approach of the presenters was pretty much like, ‘This is the way it's going to be — do you want to get on board or not?’” The implied relationship between the agency, the industry, and the public was quite clear, Kennedy explained. “Clearly, the ‘insiders’ from oil & gas believe that the Governor's Office will ‘persuade’ the TNRCC to accept whatever program is developed between the industry group and the Governor's Office.” Only later would the public be allowed to enter the process: “The concept put forward was that the industry group and the Governor's Office would develop the program, then take it to some broad-based group, including public representatives, who would then tweak it a little bit and approve it.”
Kennedy was skeptical, yet this is precisely what came to pass. When the group met again five weeks later, Exxon executive Bill Flis announced that the T.N.R.C.C. would take over “further development of the program.” Howard urged the assembled industry reps to come forward early to demonstrate the viability of the program to the media and the public. Commissioner Márquez thanked Exxon and Marathon for their work, and announced that the agency would be soliciting public involvement (“the supporting cast”) in the months to come, and that he expected to have a signing ceremony for the Governor's program shortly after the new year.
On September 10, the Clean Air Responsibility Enterprise Committee was set up, ostensibly to help create a voluntary program for grandfathered polluters. The Committee had a good geographic distribution, and an admirable balance of business and environmental representatives. It was also a complete sham. As the “supporting cast” soon discovered, everyone that mattered had already signed off on the program they were supposed to be creating.
Thus the Governor's CARE program was born. In a March 1998 press conference, Bush announced that he already had thirty-six volunteers signed up (representing sixty out of a total of 831 grandfathered sites), for a promised reduction of 25,000 tons of pollutants per year. But according to an analysis by Ramón Alvarez of the Environmental Defense Fund as of November 1998, only three companies had actually reduced emissions, and then by only one-sixth of the promised total. Of the remaining thirty-three, only seven others had promised reductions. Nine other companies acknowledged that they would receive permits under the program without actually reducing emissions to any significant degree.
Despite mounting criticism, the Governor was wedded to the voluntary philosophy. A steady flow of cash cemented the bond: according to figures tabulated by Public Research Works and the Center for Responsive Politics, companies in the Governor's grandfather working group (or their representatives) donated a total of $260,648 to his gubernatorial campaign in 1997 and 1998, plus a similar amount ($243,900 through March of this year) to his presidential campaign.
Smog at the Lege
The Governor's marriage to dirty industry was consummated in the 76th Legislature, with the formal codification and ratification of the CARE program. Oil and chemical lobbyist Kinnan Goleman wrote the initial draft of the bill, and Senator Buster Brown sponsored what would eventually become S.B. 766, the Voluntary Emissions Reduction Permit program. Not only did the bill as drafted not close the grandfather loophole, as Neil Carman explains, it also did not apply current controls (usually referred to as B.A.C.T., “Best Available Control Technology”) to those companies volunteering to enter the program. The bill allowed the companies to use ten-year-old B.A.C.T. — a hazy standard difficult to determine and enforce. Not surprisingly, S.B. 766 was also loaded with an industry wishlist: trading reductions on one pollutant for another, credit for “environmental mitigation projects” (regardless of whether they improve air quality, or are even in the same part of the state), multiple plant permits, no contested case hearings on voluntary permits. Industry also tacked on gifts for itself unrelated to grandfathering, including expansion of the “standard permit,” a sort of “slam-dunk” permit category that requires little public input of any variety.
The bill sailed through the Senate, but got bogged down in the House Calendars Committee, and finally hit the floor May 25, just hours before a House deadline for Senate bills. Led by Glen Maxey and Zeb Zbranek, the Democrats tacked on ten amendments, including provisions to remove the grandfather loophole by placing a two-year time limit to join the program (essentially making it mandatory, not voluntary) and forcing companies to apply current B.A.C.T., not ten-year-old controls. With less than two hours to the deadline and several key bills still to be heard that night, Grand Prairie Republican Ray Allen, the House sponsor, had no choice but to accept the amendments, pledging to strip them off later in conference committee. There was no doubt who Allen was representing, according to Maxey. “Ray Allen said upfront months ago that his goal was to protect Texas Utilities and to make George Bush green for the presidential campaign,” Maxey told the Observer. When Steve Wolens ensured that ending grandfathering for utilities would be part of the deregulation bill (S.B. 7), that took away Allen’s first impetus, Maxey said. (With that provision, the dereg bill effectively removed the exemption from roughly thirty percent of the state’s total grandfathered pollution; it will stand as the biggest win for the environment this session.)
Allen, according to Maxey, was also very upfront about the Governor's motivation. (Allen refused to answer questions from the Observer.) “[Allen] said it was not a policy decision. It was a political decision, based on the presidential campaign,” Maxey said. Maxey believes the Governor intends to make the approach epitomized in S.B. 766 a major campaign theme. “Bush wants to travel the country and say that he was able to do a major environmental project … through a policy that overturns or sets aside ‘command and control’ policy,” Maxey said. “That’s where government commands that businesses do something and then controls how they do it.” (Attacks on “command and control” environmentalism are commonplaces of the industry-funded “Wise Use” movement.) Maxey predicted that the Governor has already lined up another, larger group of volunteers, whom he expects to step forward at some choreographed event following the signing of S.B. 766.
But when the conference committee was named late Friday night on the session’s final weekend, it was by no means clear that Allen would get the amendments stripped off, or that the Governor would have a bill to sign at all. As expected, Lieutenant Governor Rick Perry named four senators chosen by Buster Brown. But Speaker Pete Laney gave the House conferees a three to two Democratic advantage, with Maxey, Zbranek, and Pete Gallego lined up against Allen and Pampa Republican Warren Chisum. Allen had let it be known weeks in advance that any “time-certain” deadline for joining the program would be a deal-killer, since that would fly in the face of Bush's campaign theme of voluntarism. Nevertheless, Maxey and Zbranek spread the word that they would insist on closing the loophole, or they would kill the bill.
At the conference meeting, Allen had in hand the signatures of four of the Senate conferees, who had signed off in advance on any deal made by Allen. After nine hours of grueling negotiations, the Democrats agreed to a compromise. The loophole survived. Instead of closing it, the Democrats inserted a provision raising the fee charged per ton of pollutants for companies which elect not to join the voluntary program. The new provision only applies to each ton over 4,000 emitted annually by a single facility, and the fee triples every year, in theory quickly becoming prohibitive.
The catch is that only a relatively small number of sites emit over 4,000 tons annually. Most of those are utilities — which are already covered by Wolens’ provision in S.B. 7. According to Neil Carman, after you take out the power companies and the big polluters who have already signed up, Maxey’s amendment catches only about eight or nine companies. The Democrats also caved in on B.A.C.T., reverting to the Senate’s original language on ten-year-old controls, albeit with a somewhat hazy provision that may make some sites use more modern controls. But for the vast majority of grandfathered sites, getting a permit will still be voluntary. And the bill’s other attacks on the Clean Air Act, including the expansion of the standard permit and the concomitant attacks on public hearing prerogatives, survived the conference process as well.
Glen Maxey said the Democrats could have torpedoed the bill, and derailed the Governor's campaign coup at the same time — but they chose not to. “We would have been in a situation where Democrats killed a step toward pollution control, and I wasn’t going to do that. I think there’s a big enough bite out of the apple now, especially with Senate Bill 7,” he said. The enviro lobby is not so sure. Following the release of the conference committee report, environmental group assessments of the results were uniformly negative.
The frustrating thing, said Maxey, is that had the Democrats’ amendments actually made it to the floor, many of them — including the time-certain provision — would likely have passed. Many of the Republicans Maxey canvassed had never been approached by the Governor. “Most people said, if you live in a place like Dallas–Fort Worth or San Antonio, those Republicans said it was political suicide to not vote to close the loophole.” Maxey added that he had received assurances from both Allen and Chisum that they would co-author legislation with him next session, to close the loophole for good. With Republicans on the floor ready to act, a Democratic conference committee ready to torpedo, and a general public attuned to the issue of air quality like never before, how did S.B. 766 make it intact to the Governor's desk? Hail to the Chief. |
