Illinois has joined 12 other states and the District of Columbia in asking the U.S. Court of Appeals to review new rules they contend will take the teeth out of the federal Clean Air Act.
Much is at stake for the mainly Eastern states involved because they’ve long borne the brunt of acid-rain-producing industrial pollution from older coal-fired plants in the Midwest. But officials here believe Illinois has a stake in the issue, too. Air quality experts at the Illinois Environmental Protection Agency fear changes mandated by President George W. Bush’s administration threaten to undo hard-fought emissions reductions in this state.
In fact, turning back the clock on air quality standards would prove to be a bitter pill for Illinois. Not only has this state had to bear the cost of clearing the air at its many industrial sites, but the clean air standards in force for the past three decades have meant Illinois’ high-sulfur coal has been too dirty to burn.
The 13 states involved include Connecticut, Maine, Massachusetts, New York and Vermont. Their petition before the Washington, D.C.-based court argues the U.S. Environmental Protection Agency’s order is invalid because the federal Clean Air Act prohibits modification unless the change ensures “equivalent or greater emissions reductions.’’ The states contend the U.S. EPA’s rule changes — ordered after the president failed to push through mirror legislation — don’t meet that challenge.
The new rules ease pressures on the power industry, a major target of the Clean Air Act because of its reliance on sulfur-dioxide belching coal plants. It exempts power producers who retrofit older plants from some demands to meet tougher clean air standards under federal law.
Under that law, new plants are required to install costly equipment to remove such pollutants as sulfur dioxide. Older plants were to install “scrubber” technology if and when they modernized.
That compromise was engineered under the logic that the older facilities would eventually be retired and that cleaner units would be built to replace them. However, most energy producers continued to rely on their older facilities operated under the less stringent emissions standards. A combination of regulatory misdirection and economic reality made it cheaper and easier for companies to maintain older plants than to make major investments in newer, cleaner technologies.
All of Illinois’ 23 coal-fired plants would fail to meet the more stringent standards for new plants, according to the state environmental agency. Still, many of those plants have been making progress toward reducing polluting emissions.
Dave Kolaz, chief of the Illinois agency’s Bureau of Air, says a good example of the trend is Dynegy Midwest Generation’s power plant in Baldwin. One of the largest plants in the state, it has dramatically reduced its emissions since 1999, when it was belching 245,243 tons of sulfur dioxide annually, more than the power plants in some other states combined. The 26,267 tons that plant emitted in 2002 sounds like a major improvement, and it is. But, as Kolaz points out, this is still three times the pollution the Illinois EPA would allow a new plant at start-up.
The unintended consequence of the regulatory loophole provided to older plants has led parties from both sides to look for new, long-term approaches to emissions control. “Everyone who looks at this agrees that it is broke,” Kolaz says. The question is how to go about fixing it without undoing the progress made so far.
Two other measures now under consideration in Congress could provide power companies with the regulatory certainty they are looking for without handcuffing the agency’s ongoing efforts. The Clean Power Act, introduced by Sens. James Jeffords, a Vermont Independent, and Joseph Lieberman, a Connecticut Democrat, would combine tougher emission caps with shorter deadlines. The Clean Air Planning Act, introduced by Sens. Thomas Carper, a Delaware Democrat, and Lincoln Chafee, a Rhode Island Republican, would initiate a phased-in cap-and-trade program. These plans, which have been used with great success to reduce acid rain, provide incentives for companies to reduce emissions even beneath standard limits because they receive credits they can sell to other companies that aren’t yet meeting those limits.
Both proposals include caps on carbon dioxide, which contributes to global warming. The president’s plan omits carbon dioxide limits.
The Bush Administration’s rules, dubbed the Clear Skies Act in their legislative incarnation, were a nod to complaints from the power industry, which protested the old standards were confusing to implement and punished creative solutions to emissions problems. Jim Rogers, CEO of Cinergy Corp. and spokesman for the power industry’s Edison Electric Institute, told a U.S. Senate subcommittee on the environment: “We’ve come a long way under existing Clean Air Act programs, but the 30-year-old law is ill-suited to help us meet the challenges we face today.
“The net result of the current system is a planning nightmare that makes it virtually impossible for electric gener-ators to have any stable notion of what requirements will be in place in the future.” The power industry contends that setting long-term standards will give them the economic and regulatory stability they need to sell newer, cleaner generation units to investors.
Kolaz agrees the current regulatory climate punishes investment in technology. It is difficult for a newer, cleaner facility to compete against an older, dirtier plant with much weaker regulations. “Periodically, in the life of a plant like that, you have to enforce more stringent controls to make them meet the same standards as the newer plant. Otherwise, it will always be in their best interest to keep fixing the old plant.”
The administration’s solution alters regulations on modifications of existing plants in four ways. First, it changes the way emissions standards are set for each facility. Previously, the Illinois environmental agency compared proposed changes with the past two to three years when calculating whether a modification will create excessive emissions increases. Under the new rules, facilities are allowed to use emissions figures from the worst 24-month period over the past decade. This could allow some facilities to increase emissions without penalty.
The definition of the kinds of changes that would fall under “routine maintenance” also was modified. Kolaz says changes allowed under the new rules would previously have been categorized as “major modifications,” and would have kicked facilities into the more stringent emissions requirements. “The changes that the [new rules] are making, in our opinion, will make it possible for sources to modify existing equipment and have major increases in actual emissions.”
A third change grants facilities that install the best available emissions controls an exemption from further review for a period of 20 years. Kolaz says, “that seems reasonable, if they did in fact put on the best available control.” But he balks at the U.S. EPA’s insistence that the exemptions be retroactive. “It will be difficult for us to go back and ascertain if it was, in fact, the best available control technology back then. As written, it is going to create a loophole for a lot of facilities.”
A fourth adjustment sets what are called plantwide applicability limits, forcing the states to evaluate emissions at facilities on a sitewide basis. The Clear Skies rules allow polluters to “lock in” a set emissions baseline and make modifications to specific components of the facility as long as the whole site remains under that cap. “We feel that the specific approach they have taken is seriously flawed,’’ Kolaz says. “They don’t have provisions to tighten that cap periodically. Once the cap is set, they are allowing it to remain in place for 10 years without change.”
Kolaz fears that without the ability to tighten requirements, the state might lose some of the ground it has won recently in battling air pollution. Since 1999, power plants in Illinois have reduced sulfur dioxide emissions 714,000 tons to 360,000. “My point is that companies do make reductions. What we’d like to do as they do that, as they get new technology and make changes, is to lock it in. Implementing these changes in this way might allow companies to backslide, and that is something we want to avoid.”
Many environmental groups, including the Environmental Law and Policy Center in Chicago, contend the president’s plan is impractical and dangerous. Faith Bugel, a member of the policy center’s legal team, says, “The administration’s position that these changes will make facilities able to run more efficiently and able to make changes that will decrease emissions is really without a strong basis in the practicality of how the regulations will actually operate.” Bugel’s view echoes that of many environmentalists who contend that giving polluters a relaxed regulatory climate in the hopes they will make sound decisions on their own is placing an unjustified measure of faith in an industry that historically hasn’t done anything unless forced.
Each of the reform plans is predicated on the idea that regulatory freedom and predictable expectations will be incentives to make responsible environmental decisions. Kolaz says, “It makes environmental groups particularly uncomfortable because they would like to have the absolute command-and-control certainty that stringent rules require. But there are others who would like to live in a more market-driven scenario where you can provide incentives for companies to do the right thing. But you need to provide the flexibility for companies to operate.
“If we sit down with them and set plantwide limits on their emissions,” he says, “and had a periodic and reasonable ratcheting down of those emissions requirements to reflect the new control technology that is becoming available, and said, ‘As long as you stay within those limits you can make the changes at your plant that you think are economically feasible and necessary,’ that would work well.”
Kolaz says an ideal revision of the act would give industry stability while not crippling regulatory controls.
As they stand, the federal changes amount to a slap in the face to a state that has suffered much in effecting compliance in the view of Illinois’ U.S. Sen. Richard Durbin.
“In Illinois, we have made real sacrifices to meet the requirements of the Clean Air Act,” he told reporters in January. “Coal mines have shut down, workers have lost jobs, all in the name of clean air policy. And how does the administration respond? By rolling back the existing policy and rolling right over the people of Illinois.”
Durbin, a Democrat who has been trying during most of his political career to save a dying Illinois coal industry, says weakening the act now, after so much has been gained at such a high cost, is nothing short of irresponsible.
“States like Illinois have given at the office, at the coal mine and in the small communities to make our air cleaner,” he said in a prepared statement. “The coal industry in my state has all but disappeared because of the Clean Air Act. It is unconscionable to say to my state, ‘Your sacrifice and your contributions have been meaningless.’”
Illinois Issues,July/August 2003
