Polluter Playtime

Frank O'Donnell is president of  Clean Air Watch [1], a 501 (c) 3 non-partisan, non-profit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.

In a move virtually unnoticed by the press corps, the Bush administration this week quietly dropped a lawsuit against a big electric power company. 

The suit against Duke Power Company was brought by the Clinton administration, which accused Duke of illegally spewing too much pollution into the air. The Bush team initially gave lip service to continuing the suit, but it shelved the case after a setback in a lower court.

In the process, the administration demonstrated a phenomenon that is becoming increasingly apparent: For a government seemingly obsessed with promoting the “rule of law” everywhere from Iraq to Mongolia, the Bush administration can be pretty loose when it comes to enforcing the law back home.

Especially when it comes to enforcing environmental laws such as the Clean Air Act.

Whether it’s dealing with coal-burning electric plants in the Midwest or auto emission inspections in Ohio and Kentucky, the administration has decided it won’t even attempt to enforce the law if it seems inconvenient to big polluters or to Republican-controlled state governments.

This isn’t a trivial matter. Hundreds—perhaps thousands—of Americans are dying unnecessarily each year as a direct result of the administration’s cavalier disregard for the law. 

The administration’s negligence is perhaps topped only by its brazenly false claims about its enforcement prowess. Consider, for example, the hypocritical assertions made last month by Granta Nakayama, the Environmental Protection Agency’s head of enforcement, as the agency issued a status report on its enforcement efforts.

Nakayama (who, until recently, was a corporate lawyer-lobbyist paid to undermine clean air controls) contended that “EPA's enforcement strategy and accomplishments demonstrate our commitment to achieving cleaner air, cleaner water and healthier communities."

To back his claim, Nakayama cited 10 recently resolved air pollution cases against corporate polluters.  Those 10 cases would eliminate 620 million pounds of pollution and bring more than $4.6 billion in public health benefits, including “reductions in premature mortality, bronchitis, hospitalizations and work days lost.”

What Nakayama left out was that half of the results came from cases brought by the Clinton administration.  These were prosecutions of electric power companies that violated the law’s “new source review” provisions, which require smokestack industries to modernize pollution controls when they increase emissions.

Nakayama also forgot to mention that the Bush administration has rewritten the very rules used to prosecute those companies. The Bush version of the rules, which would let power companies off the hook, is being challenged in court by numerous state attorneys general, as well as environmental groups.  

"It is the height of hypocrisy for the Bush administration to try to take credit today for enforcing the Clean Air Act's new source review provisions,” notes Rep. Henry Waxman, D-Calif.  “The Bush EPA has been working overtime to change the underlying clean air rules and prevent such enforcement actions from being brought against dirty power plants in the future." 

Nakayama also failed to note that the Bush administration is not only trying to change the rules, but that it recently declared that it would not even enforce the law against the power industry—a move the administration euphemistically described as an effort to “refocus” its activities.

Some big polluters have become so encouraged that they’ve gone to court to seek dismissal of pending charges.  It’s as if someone awaiting trial for murder sought freedom on the grounds that prosecutors were going to look the other way in future murder cases. 

Take, for example, Cinergy, the conglomerate that provides electric power in Ohio and Indiana.  Five years ago—in December 2000—Cinergy reached an agreement in principle with the Clinton administration, which had accused it of violating new source review. Cinergy pledged at the time to reduce 1 billion pounds of pollution—more, in other words—than all the “top 10” cases combined that Nakayama boasted about. 

But after the 2000 elections, the company refused to sign the deal.  Now, Cinergy is asking a court to dismiss the charges because of the Bush administration’s decision not to enforce the law against other companies.  Cinergy no doubt will be encouraged by the administration’s change of heart in the Duke case.

The “refocused” Bush policy of non-enforcement unfortunately is spreading like the avian flu to other sources of pollution.

For instance, the states of Kentucky and Ohio recently decided to abolish auto emission inspections in the Cincinnati metropolitan area even though an American Lung Association report documented the area had 19 days this summer with unhealthful air quality. 

Auto inspections do help reduce pollution, and EPA rules stipulate that smoggy states such as Ohio and Kentucky can’t just scrap pollution control programs that they don’t like.  Except that, once again, the EPA says it’s not going to enforce the law.

“Illegal and irresponsible,” is how the American Lung Association describes the situation.

So you do have to marvel at the chutzpah of an EPA spokeswoman, who recently declared that, “We will continue to rigorously enforce any violations of the nation’s clean air laws.”

Except, that is, when the Bush administration doesn’t feel like it.