Hearings on S. 385, "Clear Skies Act of 2003"

U.S. Senate Committee on Environment & Public Works,

Subcommittee on Clean Air, Climate Change, and Nuclear Safety

April 8, 2003

Testimony of David G. Hawkins

Director, NRDC Climate Center

Natural Resources Defense Council

***Summary***

Mr. Chairman and members of the Subcommittee, thank you for inviting me
to testify on behalf of NRDC, the Natural Resources Defense Council, and
its more than 500,000 members regarding S. 385, the administration's
bill to amend the Clean Air Act. We have examined the administration
proposal and we conclude it would harm public health, weaken current
pollution fighting programs and worsen global warming.

In my testimony today, I will emphasize three major policy failures in
the administration's bill. S. 385 would do the following to our nation's
clean air program:

-   Allow power plant pollution to continue to inflict huge, avoidable
    health damages on the public.

-   Repeal or interfere with major health and air quality safeguards in
    current law.

-   Worsen global warming by ignoring CO~2~ emissions from the power
    sector.

NRDC supports good legislation to amend the Clean Air Act. We worked
with the first Bush administration in 1989 and supported the cap and
trade program that was enacted in the 1990 amendments to the law. But
the current administration proposal is not good legislation: it would
take two enormous steps backward and fail to take a critical step
forward on global warming.

Fortunately, your choices are not limited to accepting the
administration plan or taking no action. As Senators you have the right
to ask the administration to explain the policy choices in the bill it
has sent to you. If you conduct a thorough inquiry into the
administration plan and alternatives we believe you will conclude that
the administration bill should not become law. Congress can do much
better and the public deserves much better. We want to work with you to
deliver that better solution to the public.

# ***I. The Administration Plan Imposes Unacceptable and Avoidable Health Costs on the Public***

Air pollution from power plants imposes a staggering toll of death,
disease, and environmental contamination on the American people.

-   Sulfur dioxide (SO~2~) and nitrogen oxides (NO~x~) emissions from
    power plants create dangerous concentrations of fine particles and
    ozone (soot and smog) in the air that 175 million people breathe.
    Soot and smog caused by power plant emissions is causing 30,000
    premature deaths, hundreds of thousands of asthma attacks, and
    millions of days of illness and lost work each year.

-   Mercury emissions from power plants fall from the air and wash into
    lakes, rivers, and coastal waters, where they concentrate in fish.
    Mercury is a potent brain poison (neurotoxin) even in very small
    amounts. Forty-four states have issued warnings against eating local
    fish because of mercury contamination.

    Power plant pollution is causing a major, ongoing public health
    crisis. The Bush administration's proposed air pollution plan fails
    to stem this crisis.

    By any comparison, the administration plan allows power plant owners
    to continue an unacceptable and unjustifiable toll of preventable
    death and illness. Measured against alternative legislative
    proposals -- including an alternative proposal developed within the
    administration itself in 2001 -- the administration plan would
    result in more than 100,000 additional early deaths and millions of
    additional asthma attacks and other illnesses between now and 2020.
    The administration plan also would result in hundreds of tons more
    mercury released into the atmosphere over this period. The same
    conclusions emerge when the administration plan is measured against
    faithful enforcement of the current Clean Air Act.

    The administration rejected an alternative proposal, developed by
    EPA in August 2001, that would have dramatically reduced this toll
    of death, illness, and environmental contamination. When expressed
    in monetary terms, the benefits of the EPA proposal dwarf its cost.
    But the administration has submitted to you the much weaker plan
    found in S.385. By sending you its weaker plan, the administration
    is asking you to vote for a program that saves power plant owners
    \$3.5 billion per year in pollution control costs but imposes at
    least *\$61 billion* per year in additional avoidable health costs
    on the American people.

    In our view, the administration owes you -- and the American people
    -- some straight answers to these questions:

-   Why should the public accept the enormous toll of preventable death
    and illness from power plant pollution that will still occur under
    the administration's plan?

-   Why should Americans suffer tens of billions of dollars each year in
    health costs that could be avoided at a fraction of that cost?

-   Why don't the American people have a right to expect -- whether from
    the current Clean Air Act or any new legislation -- much deeper and
    quicker reductions in power plant pollution than the administration
    plan would provide?

    ***The Administration Plan vs. the EPA Proposal***

    The original "Clear Skies" proposal was developed in 2001 by the
    Environmental Protection Agency.[^1] The EPA proposal was developed
    with the goal of delivering at least as much clean-up of sulfur,
    nitrogen, and mercury emissions as required under the current Clean
    Air Act with the purported advantages of a cap and trade program.
    Unfortunately, while the administration's plan before you today
    keeps the title, the program has been converted from one that speeds
    clean air to one that shields power plant owners from faster cuts in
    their pollution.

    After intense lobbying by power plant owners, the White House
    rejected the targets and timetables in the EPA proposal and proposed
    a plan allowing much greater continuing pollution from this
    industry. The larger pollution loads allowed by the administration's
    CSI plan are summarized in the following chart:

+--------------+----------------+------------------+------------------+
| **Bush       |                |                  |                  |
| Ad           |                |                  |                  |
| ministration |                |                  |                  |
| Plan (CSI)   |                |                  |                  |
| vs. EPA      |                |                  |                  |
| Proposal     |                |                  |                  |
| (Aug.        |                |                  |                  |
| 2001)**      |                |                  |                  |
+--------------+----------------+------------------+------------------+
|              | **Sulfur       | **Nitrogen       | **Mercury (Hg)** |
|              | Dioxide        | Oxides (NO~x~)** |                  |
|              | (SO~2~)**      |                  |                  |
+--------------+----------------+------------------+------------------+
| ##           | 2 million tons | 1.9 million tons | 24 tons in 2008  |
|              | in 2010        | in 2008          |                  |
| ## E         |                |                  | 7.5 tons in      |
| PA Proposal  |                | 1.25 million     | 2012, with 70%   |
|              |                | tons in 2012     | f                |
|              |                |                  | acility-specific |
|              |                |                  | reduction        |
+--------------+----------------+------------------+------------------+
| **Ad         | 4.5 million    | 2.1 million tons | 26 tons in 2010  |
| ministration | tons in 2010   | in 2008          |                  |
| Plan**       |                |                  | 15 tons in 2018  |
|              | 3 million tons | 1.7 million tons |                  |
|              | in 2018        | in 2018          |                  |
+--------------+----------------+------------------+------------------+

The differences in the amount of pollution allowed by these two plans,
both year by year and cumulatively out to 2020, are huge.[^2] The
administration plan would result in 42 million tons more pollution than
the EPA proposal: For SO~2~, 18 million tons more through 2012 and 34
million excess tons out through 2020. For NO~x~, 3 million tons more
through 2012 and 8 million excess tons out through 2020. The
administration plan would also allow 58 tons more mercury through 2012
and 163 tons more out through 2020.

![](media/image1.wmf)![](media/image2.wmf)

![](media/image3.wmf)![](media/image4.wmf)

![](media/image5.wmf) ![](media/image6.wmf)

## Figures 1 to 6

-   ***Health Consequences of Administration Plan's Excess SO~2~ and
    NO~x~ .*** The administration's plan means large numbers of
    Americans will continue to die prematurely or suffer illness caused
    by the excessive pollution power plants would continue releasing
    under the plan. Figure 7 shows EPA's estimates of the additional
    premature death toll and illness in 2020 under the administration
    plan:[^3]

    -   7100 additional premature deaths

    -   4600 additional chronic bronchitis cases

    -   5100 additional hospital stays and ER visits

    -   7 million additional days of respiratory illness

        ![](media/image7.wmf)

        **Figure 7**

        While EPA has not presented the cumulative additional premature
        deaths and illnesses allowed under the administration plan,
        those numbers are even larger. Using EPA methods, the Clean Air
        Task Force calculates that between 2008 and 2020, the
        administration's plan would allow *more than 100,000* additional
        premature deaths and would allow *millions* more asthma attacks
        and other illnesses.[^4]

        While we have fundamental concerns about attempting to reduce
        human death, illness, and misery into dollars, it is important
        to note EPA's estimate of the costs the administration's
        proposal would impose on the public in monetary terms. EPA
        analyses show that the administration proposal would result in
        \$61 billion more in premature death and disease costs per year
        by 2020 than the EPA August 2001 proposal. While the EPA August
        2001 proposal would cost industry \$3.5 billion dollars more per
        year to implement, it would achieve over \$15 in health benefits
        for every clean-up dollar spent. For some as yet unexplained
        reason, the administration chose a plan that would inflict an
        additional \$61 billion a year in health damages on the public
        in order to save power plant owners \$3.5 billion in compliance
        costs. See Figure 8.

        ![](media/image8.wmf)

        **Figure 8**

        The additional pollution from power plants under the
        administration plan will leave dozens of cities and counties out
        of attainment of the national ambient air quality standards for
        fine particles (soot) and ozone (smog) -- the Clean Air Act's
        bedrock measure of public health protection.

-   The administration's analysis shows that its plan would leave 107
    counties -- home to 77 million Americans -- in violation of these
    public health standards in 2010. 64 counties with 60 million
    residents would remain in violation even in 2020 after the plan's
    delayed second-phase requirements in 2018.

-   The stronger power plant emission curbs in EPA's 2001 proposal would
    bring 85 percent of eastern counties with unhealthy soot levels into
    compliance with the fine particle standard, and 90 percent of
    eastern counties with unhealthy smog levels into compliance with the
    ozone standard. Greater power plant pollution reductions would
    reduce population exposure in the remaining counties and make it
    substantially easier for them to reach the health standards with
    reasonable controls on other sources.

    ***Health Consequences of Administration Plan's Excess Mercury.***
    Coal-burning power plants are the largest industrial source of
    mercury air pollution, and the only one still not subject to clean
    air safeguards. Mercury emissions from power plants fall from the
    air and wash into lakes, rivers, and coastal waters, where they
    concentrate in fish. Mercury is a potent neurotoxin even in very
    small amounts. Forty-four states have issued warnings against eating
    local fish because of mercury contamination.

Methylmercury (the form of mercury that is absorbed in tissue) is highly
toxic, interfering with the development and function of the central
nervous system. Infants can ingest methylmercury from breast milk when
mothers have eaten contaminated fish. Children who eat such fish are
exposed that way as well. Children and infants are at higher risk of
mercury poisoning because their nervous systems continue to develop
until about age 14. Health effects linked to prenatal methylmercury
exposure include:[^5]

-   poor performance on tests of attention and language

-   impaired memory

-   inability to process and recall information

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-   impaired visual and motor function

    One in 12 women of childbearing age has mercury levels above EPA's
    safe health threshold, according to a Centers for Disease Control
    and Prevention report published in January 2003 and a *Journal of
    the American Medical Association* published last week.[^6]
    Nationally, this translates into nearly 4.9 million women of
    childbearing age with elevated levels of mercury from eating
    contaminated fish and more than 300,000 newborns at risk of
    neurological impairment from exposure *in utero*.[^7]

    An estimated 60,000 children are born each year at a significantly
    increased risk of adverse neurological effects from mercury and
    current exposure levels increase the number of children "who have to
    struggle to keep up in school and who might require remedial classes
    of special education," according to the National Academy of
    Sciences.[^8] Eating mercury-tainted fish also can harm
    cardiovascular and immune systems in adults.[^9]

    Every ton of mercury emissions from power plants adds to the
    cumulative and persistent mercury loadings in our lakes and streams.
    EPA's IPM runs show that under the administration plan, power plants
    would add loadings of 163 tons more mercury through 2020 than under
    the EPA proposal.[^10] Because mercury is an accumulative toxin,
    these added tons will do their damage for scores of years after they
    are released.

    The cumulative and persistent nature of mercury contamination
    underscores the need to minimize emissions from all sources. The
    weak and delayed mercury provisions in the administration plan will
    result in a failure to apply technology capable of removing power
    plants as a significant source of mercury. This means more continued
    mercury pollution not only from U.S. sources but from power plants
    world wide. As we have demonstrated with another brain poison, lead,
    when the U.S. shows leadership in advancing policies to cut
    dangerous pollution, the rest of the world follows. The United
    Nations has identified global mercury pollution as a priority but
    the signal by the administration plan is that the U.S. will go slow.
    This will almost certainly translate into a global go-slow approach,
    meaning higher mercury emissions from the rest of the world
    continuing to be deposited in the U.S..

***The Administration Plan vs. the Clean Air Act***

It is also appropriate to assess whether the administration plan would
deliver more pollution reduction than the current Clean Air Act, or
less. In fact, the administration plan would result in millions of tons
more pollution than faithful enforcement of the current law.

***SO~2~ and NO~x~:*** The administration claims that its plan would
reduce SO~2~ and NO~x~ emissions by 35 million tons more than the
current Clean Air Act through 2012. In fact, just the opposite is true:
compared to enforcing the current law, the administration plan actually
would allow major increases in SO~2~ and NO~x~ in the next ten to
fifteen years.

What accounts for these different assessments of the administration
plan? The secret is in the administration's yardstick. The
administration is comparing its proposal with a misleading "baseline"
that expressly assumes EPA *does not enforce* *the Clean Air Act.* EPA
Assistant Administrator Holmstead has candidly called this the "Rip Van
Winkle scenario."[^11] The Rip Van Winkle scenario includes only the
power plant pollution limits that are on the EPA books at this moment --
principally the SO~2~ reductions already required by the Title IV 1990
acid rain program and NO~x~ cuts ordered under the "NO~x~ SIP call" in
1997. The Rip Van Winkle scenario assumes that EPA goes to sleep, doing
nothing more for more for a decade.

But the existing Clean Air Act requires much more than that. It requires
the states and EPA to bring our cities and counties into compliance with
the national ambient air quality standards for fine particles and ozone
(soot and smog pollution) before the end of this decade, unless
accomplishing that task can be shown to be not possible. EPA concedes
that meeting health standards will require steeper and faster reductions
in power plant SO~2~ and NO~x~ emissions than assumed in the Rip Van
Winkle scenario or required by the administration plan.

Undr the current Clean Air Act the pathway for meeting public health
standards begins with the designation of which cities and counties
across the country do not attain the standards, based on several years
of pollution measurements. These "nonattainment designations" will take
place in early 2004 for ozone and by the end of 2004 for fine
particles.[^12]

The Clean Air Act then requires the states and EPA to implement the
emission reduction measures needed to meet these public health standards
within five years of these designations, by 2009, or sooner if feasible
-- the law says "as expeditiously as practicable".[^13] Deadline
extensions are allowed only if a state rigorously demonstrates that
pollution control measures to meet health standards on time are not
available or feasible.[^14] No such demonstrations have been made. While
the states have primary responsibility to address local pollution
sources, the Clean Air Act gives EPA special responsibility for
interstate pollution that interferes with attainment of the health
standards in areas downwind. EPA is required to order pollution
reductions from upwind power plants where needed to bring areas in
downwind states into timely compliance with the health standards.[^15]

Administration spokesmen refuse to say how much reduction in power
plants' SO~2~ and NO~x~ pollution is needed under current law to meet
the public health standards on time. But EPA's analyses of the
administration plan show that it will not result in sufficient clean-up
to attain the standards on the schedule required by current law.

As I have already noted, the weak emission reductions in the
administration's plan leave 107 counties in nonattainment in 2010 and 64
counties in 2020. As mentioned above, current law requires attainment by
2009 or sooner unless this schedule is not practicable. But the
administration has presented no analysis arguing that its 2018 schedule
for completing SO~2~ and NO~x~ reductions is the fastest practicable
schedule. Indeed, analyses on EPA's web site show that while there may
be some labor constraints between now and 2005, those constraints
disappear well before 2010.[^16]

In short, current law requires more reductions sooner than the
administration plan and EPA's analyses show deeper and faster reductions
are feasible.

The administration may claim to be making a 35 million ton advance over
the Rip Van Winkle scenario, but that is a phony measure. In fact an
objective reading of the current law and EPA's analyses show that the
administration plan would result in far more power plant SO~2~ and NO~x~
air pollution compared with enforcing the existing Clean Air Act

***Mercury:*** The Clean Air Act also requires faster and deeper
reductions of mercury than the administration plan. The current Act
requires each mercury-emitting power plant to cut its emissions by
installing the maximum available control technology ("MACT").[^17] EPA
must issue mercury standards in 2004.[^18] Compliance with the MACT
standard is required three years later, at the end of 2007.[^19] Given
the extreme toxicity of mercury, the current law does not permit
emissions trading between mercury-emitting sources.

Because EPA has not yet issued the MACT standard, the administration
argues that no one can say how much mercury it will allow. Mercury MACT
controls on other sources, however, provide a good indication of what is
feasible. The MACT pollution controls on municipal and medical waste
incinerators, for example, eliminate at least 90 percent of these
sources' mercury emissions.

In December 2001, EPA told the Edison Electric Institute, the power
sector's main trade association, that an equivalent MACT standard for
power plants would reduce mercury emissions from 48 tons to 5 tons
nationwide by the end of 2007.[^20] In the regulatory development
process now underway, EPA is evaluating performance requirements that
would achieve a reduction to 5 tons per year. The weakest option being
analyzed by the agency (at the request of the utility industry) is a
level only slightly higher than the administration plan's second-phase
target of 15 tons.

No one, including the administration, has contended that a standard as
weak as the administration plan's first-phase target -- 26 tons -- could
pass muster under the MACT requirement of current law. Even a MACT
standard that reduced emissions by only 70 percent would cut mercury
pollution to 15 tons 10 years earlier than the administration
legislation.

The administration plan, however, would *repeal* the MACT requirement
and delay any initial mercury reductions to 2010. After that, the
administration plan would allow 26 tons per year from 2010 through 2017,
and 15 tons every year thereafter. Compared to the 5-ton level, the
administration plan would allow more than five times as much mercury
pollution through 2017, and three times as much each year after. From
2008 through 2020, that would be 284 tons more cumulative loading of
mercury under the administration plan.

# 

# 

# ***II. THE ADMINISTRATION PLAN REPEALS AND WEAKENS CRITICAL CLEAN AIR ACT PROTECTIONS***

The administration bill takes with one hand while it also takes with the
other. In addition to allowing more pollution than needed to protect
public health or allowed by current law, the administration bill repeals
or weakens each of the specific programs and requirements in the current
Clean Air Act that are effectively reducing power plant pollution today
and that will reduce it further tomorrow.

The repealers, exemptions and weakening provisions in the administration
bill do great damage to fundamental precepts of the Clean Air Act that
have helped deliver cleaner air for over thirty years.

-   The current law requires clean up of polluted areas as quickly as
    practicable but the administration plan would grant automatic delays
    to 2015.

-   The current law requires new sources locating in polluted areas to
    meet state-of-the-art pollution standards and avoid making existing
    health problems worse but the administration plan would exempt *all*
    sources (even those not covered by any cap) from those requirements
    until 2015, allowing more than a decade's worth of new pollution
    sources to make air quality worse.

-   The current law gives states victimized by interstate pollution
    effective rights to remedy that pollution but the administration
    plan makes those remedies ineffective against power plants and
    prohibits *any* reductions from power plants under these provisions
    until 2012.

-   The current law requires new and modified power plants to limit
    pollution increases to avoid turning clean air areas into polluted
    areas but the administration bill repeals this safeguard except for
    a narrow 30 mile circle around certain national parks and wilderness
    areas.

-   The current law requires new and modified power plants to meet up to
    date emission performance standards to protect areas with clean air
    but the administration repeals this safeguard for nearly all
    existing plants and replaces it with a more polluting performance
    standard for new plants.

-   The current law requires EPA to adopt rules to minimize toxic
    pollution from power plants but the administration bill repeals most
    of those requirements and replaces them with a weak performance
    requirement for mercury that is delayed ten years from the current
    law's schedule.

The administration defends all of these dismantling provisions as
eliminating programs that are not required since its plan establishes
national caps for certain power plant pollutants. But the current
administration ignores what the first Bush administration
recognized---that national caps cannot protect local air quality and
must not override the tools that are in the law to protect communities
from pollution increases that harm local air quality. Neither the first
Bush administration nor congress sought to repeal the tools that protect
local air quality when the acid rain cap program was enacted in 1990.
Repeal of those tools is no more justified now.

***Delaying Attainment of Public Health Standards.*** Section I of this
testimony sets forth EPA's legal obligations under the current Clean Air
Act to assure the attainment of the national ambient air quality
standards for fine particles and ozone (soot and smog) by 2009 at the
latest, or sooner ("as expeditiously as practicable").

The administration's bill would postpone the attainment deadline for the
country's unhealthy air areas by six years or more. As long as states
could show that their polluted areas would attain the smog and soot
standards by 2015, those areas would be labeled "transitional" rather
than "nonattainment" and be granted automatic extensions of the
deadlines to meet health standards.[^21] Since the requirement to attain
the standards "as expeditiously as practicable" applies only to
nonattainment areas,[^22] states would be under no obligation to bring
air quality into line with the health-based standards any earlier than
2015. In other words, the administration's bill would force as many as
175 million Americans to breathe harmful amounts of air pollution for at
least six years longer than current law allows.[^23]

By labeling hundreds of polluted counties "transitional" rather than
"nonattainment," the administration's bill also would allow *every*
major industrial source built or modified in those areas to make health
problems worse by evading the lowest achievable emissions rate ("LAER")
and offset requirements of current law. Under current law, anyone
wishing to build or modify a major source of air pollution in a
"nonattainment" area must ensure that the source employs
state-of-the-art methods to minimize its pollution (LAER) and must
offset any added emissions so as not to degrade the already poor air
quality in the area.[^24] This requirement applies not just to power
plants, but to all other major air pollution sources (oil refineries,
chemical plants, manufacturing facilities, etc.) as well.[^25]

Under the administration plan, these health safeguards would no longer
apply in areas relabeled as "transitional." In other words, the
administration's bill would make it easier for the owners of oil
refineries, chemical facilities, paper mills, and power plants to churn
out additional pollution in hundreds of counties where the air is
already unhealthy to breathe. It is important to emphasize that while
the administration plan caps only power plant emissions the bill would
create this loophole for *all* major industrial sources. Amazingly, the
administration has not offered a word of justification for this
remarkable assault on the Act's public health safeguards.

# ***Weakening Safeguards Against Upwind Pollution.*** Pollution from power plants in upwind states is responsible for violations of the soot and smog standards in many downwind states. The delay of attainment deadlines through the "transitional area" scheme described above would assure that many such downwind states receive more pollution transported from upwind areas over the next 12 years. 

# 

# The administration bill exacerbates this problem by eliminating, as a practical matter, the rights of downwind states under section 126 of current law to remedy pollution transported from upwind sources. Now that federal courts have upheld the rights of states to combat interstate pollution, the administration bill would effectively eliminate these rights by establishing a series of new, insurmountable tests before a harmed downwind state can gain relief.

# 

# And even if the state is able to pass these new extreme tests, the bill prohibits any emission reduction from power plants before 2012, no matter how compelling the case is that the power plants are creating serious health problems that can only be abated with stronger emission controls. Even if EPA itself believes that better controls are warranted and essential, it too is prohibited from requiring any cleanup from power plants before 2012.

Section 3(r)(6) of the administration bill amends section 126 of the
current Clean Air Act to prohibit EPA from ordering reductions in power
plant pollution transported from upwind states unless EPA makes a series
of new, onerous findings: EPA must find that every cheaper reduction (in
terms of cost per ton of emissions and in terms of cost per microgram of
air quality improvement) has already been made from industrial boilers,
on-road mobile sources, off-road mobile sources, and any other category
identified by EPA.[^26]

These provisions would effectively override key court decisions that
have upheld EPA's reasonable interpretation of the Act set forth in two
rulemakings addressing interstate transport of NO~x~ pollution.[^27]
These cases upheld EPA's determination to require reduction of upwind
emissions that "contribute significantly" to downwind pollution. While
it was necessary for EPA to show that these reductions are
cost-effective, the agency was not required to show that all other more
cost-effective ways to reduce emissions and concentrations had been
exhaustively required first.[^28] In doing so, the courts upheld EPA's
rejection of far more onerous and unmanageable approaches pushed by
industry and opposing upwind states.[^29]

In particular, EPA found in 1998 that the second approach --
demonstrating cost-effectiveness per microgram of air quality
improvement -- would be utterly impractical. Furthermore, it would be
inconsistent with an emissions trading approach, which requires
emissions to be treated as equivalent on a ton-for-ton basis, and cannot
work if each ton of emissions must be weighted differently depending on
its distance from a particular spot where air quality improvement per
microgram is assessed.[^30]

In addition to imposing new, essentially insurmountable tests, the bill
would block EPA from granting downwind states any relief from upwind
power plant pollution until after 2012. This stands in stark contrast to
the extremely expedited relief structure of the current Clean Air Act.
As EPA has noted:

Section 126 provides a tool for downwind states, the entities with most
at stake, to force EPA to confront the issue directly. It also sets up
an abbreviated, and hence potentially faster, process to achieve
emission reductions. . . . . In contrast \[to the SIP process\] Congress
required very expeditious EPA action on a \[section 126\] petition and
from 3 months up to three years for sources to comply.[^31]

In an example of "Catch-22," section 3(r)(6) of the administration bill
states that before giving a state relief from transported pollution from
power plants, EPA must first determine that the state has achieved all
more cost-effective emissions reductions (on both a per-ton and
per-microgram basis) from both on-road and off-road mobile sources. But
this places states in an impossible situation, since the Clean Air Act
elsewhere *preempts* states from controlling emissions from on-road
vehicles and engines, CAA § 209(a), and nonroad vehicles and engines,
CAA § 209(e).[^32]

As EPA has previously recognized, "Congress provided section 126 to
downwind States as a critical remedy to address pollution problems
affecting their citizens that are *otherwise beyond their control*, and
EPA has no authority to refuse to act under this section."[^33] But the
administration's legislative response to the problem of transported air
pollution is to saddle downwind, polluted states with insurmountable
barriers to relief.

***Eliminating Safeguards Against Pollution Hotspots.*** Under the
administration's bill, a power plant can pollute at any level so long as
it buys sufficient pollution allowances credits from other plants.[^34]
The fact that power plant pollution may decline nationwide, however,
provides no protection to the communities affected by a plant whose
emissions stay the same, or even increase, because of its owner's
reliance on emissions trading. The "new source review" (NSR) provisions
in the Clean Air Act provide important protection against the emergence
of "pollution havens" or "hotspots" in response to an emissions trading
system. NSR requires any person planning to build a new major pollution
source, or to change an existing one in a way that will cause an
emissions increase, to demonstrate that the source will use the most
effective pollution control methods available and that its emissions
increase will not degrade air quality either locally or in downwind
communities[^35] or national parks.[^36]

The administration's bill would eliminate federal new source review
provisions for power plants, however.[^37] If the bill were enacted, a
company would be free to cause even massive pollution increases by
building a new plant or expanding an old one without adopting up-to-date
pollution controls or determining whether air quality will get worse
locally or downwind.

To replace the federal NSR program, the administration bill calls on
states to submit state implementation plan (SIP) revisions to create a
new and less protective state new source review program. The bill sets
no deadlines for these SIP revisions. The bill does not clearly provide
that the public must have an opportunity to comment on a permit
application. The bill authorizes new loopholes for such state programs
that would allow existing power plants to increase emissions by tens of
thousands of tons each with no public process. And the bill exempts
existing and new power plants everywhere in the country (except within a
narrow 30-mile circle around national parks) from the current law's
safeguards for clean air areas.

***Replacing Up-To-Date Technology with Obsolete Standards.*** In place
of repealed requirements for case-by-case determination of up-to-date
pollution control performance, the administration's bill would
substitute a requirement that EPA establish certain emissions standards
that would apply to new power plants.[^38] The bill sets these standards
at much more polluting levels, however, than the emissions levels of
plants being built today. In other words, these standards are already
obsolete and behind the curve of current requirements. For example:

-   For boilers and integrated gasification combined cycle ("IGCC")
    plants, the bill sets a SO~2~ emissions limit of 2.0 lb/MWh.[^39]
    Three recently issued permits for coal-fired boilers set SO~2~
    emissions limits of 1.0, 1.2, and 1.0 lb/MWh, respectively.[^40]

-   For boilers and IGCC plants, the bill sets a NO~x~ emissions limit
    of 1.0 lb/MWh.[^41] Three recently issued permits for coal-fired
    boilers each set NO~x~ emissions limits of 0.7 lb/MWh.[^42]

-   For boilers and IGCC plants, the bill sets a PM emissions limit of
    0.2 lb/MWh.[^43] Three recently issued permits for coal-fired
    boilers set PM emissions limits of 0.12, 0.15, and 0.15 lb/MWh,
    respectively.[^44]

The bill does not place any obligation on EPA to update these
already-obsolete emissions standards until eight years after the agency
incorporates them into its regulations.[^45] Even then, the bill gives
the agency discretion to avoid reviewing and updating the
standards.[^46]

This is a sharp contrast with current law, under which the case-by-case
review of LAER and (in areas other than nonattainment areas) "best
available control technology" (BACT) assures that emission performance
for new and modified plants keeps pace with improvements in pollution
control capabilities. Because of BACT and LAER, the state-of-the-art in
industrial pollution control has repeatedly graduated to successively
higher levels of environmental performance as sources were built or
modified over the last two decades.

For example, a review of EPA's database for BACT and LAER determinations
reveals that over just the past ten years, the state-of-the-art in NO~x~
emissions controls for utility boilers and furnaces has advanced from no
controls ("good combustion practices") to low NO~x~ burners to selective
catalytic reduction ("SCR") to selective non-catalytic reduction
("SNCR") and circulating fluidized bed ("CFB").[^47] Recent
determinations by permitting authorities show that further improvements
are in the wings.[^48]

As EPA and the courts have recognized, Congress intended the Clean Air
Act to perform this "technology-forcing" function.[^49] The
administration's bill erases that function, leaving in its place static
emissions standards that do not even represent the state-of-the-art in
pollution control today.

EPA Assistant Administrator Holmstead has acknowledged in testimony
delivered before this Committee that the new source review requirements
have not adversely impacted construction or investment associated with
new power plants. He testified that:

> With regard to the energy sector, EPA found that the NSR program has
> not significantly impeded investment in new power plants or
> refineries. For the utility industry, this is evidenced by significant
> recent and future planned investment in new power plants. [^50]

This Committee should recall that in 1990, the first President Bush did
not seek to repeal these safeguards when he sought a cap and trade
program for SO~2~ from power plants and congress did not enact such a
repeal. Those programs have worked in tandem for the past thirteen
years. The Act's safeguards for local air quality have not interfered
with the acid rain cap and trade program and have not prevented the very
large economic savings provided by the cap and trade mechanism.
Experience proves that both programs can work together and this congress
should not ignore that fact.

***Eliminating Protections for National Parks.*** The administration
bill would exempt owners of new and modified power plants from the
obligation to meet up to date pollution performance standards (BACT) and
examine the impacts of any added pollution on national parks or
wildernesses \--called "Class I areas"\-- (except those within 30 miles
of the plant). The bill also eliminates the role of the federal land
manager (typically the National Parks Service superintendent for a
national park) in assuring that the air quality of these treasured lands
is protected.

Under current law, if a new or expanded pollution source could affect a
Class I area, the federal land manager has an opportunity to review the
draft permit and an accompanying air quality analysis to assure that
factors relevant to protecting national parks and wilderness areas are
taken into consideration, and that harmful effects are mitigated. The
federal land manager's review would be eliminated under the
administration bill for all plants outside the 30 mile cordon around
each park or wilderness.

The administration bill would also repeal the current Clean Air Act
program to lift the haze shrouding the nation's parks by obligating the
states to require the best available retrofit technology ("BART") on all
major sources of air pollution built between 1962 and 1977 that
contribute to the haze.[^51] The administration's bill exempts all power
plants -- the primary contributor to park haze -- from the BART
requirement.[^52] In so doing, the bill lets off the hook those
intransigent companies that have not yet installed the best available
retrofit technology on their plants.

If the administration elected to enforce the requirement, instead of
lifting it, the installation of BART on just the largest power plants
would reduce annual SO~2~ emissions by 4.5 million tons, and annual
NO~x~ emissions by 1.9 million tons.[^53] Those reductions alone would
be equivalent to what the administration's bill would purportedly
achieve in its entire 8-10 year first phase.

***Eliminating Protections for Other Areas With Clean Air.*** The
administration bill weakens air quality safeguards across the rest of
the country. Except in the 30 mile cordon around our national parks and
wildernesses, the bill eliminates any case-by-case review of proposed
new power plants anywhere in the country. Under current law, plants
locating in the vast majority of the country -- areas classified as
"Class II PSD areas," with air quality better than the national health
standards -- must undergo new source review and demonstrate that they
will be equipped with "best available control technology" (BACT) and
will not cause excessive degradation of air quality ("pollution
increment consumption") in the surrounding area. And, as already
mentioned, plants locating in nonattainment areas must meet the "lowest
achievable emission rate" (LAER) and must offset any additional
pollution.

The administration bill repeals these requirements, creating a vacuum
where there is no federally enforceable obligation for new or modified
power plants to provide anyone with notice of their intent to build or
expand, no requirement to review air quality impacts, and no requirement
to case-by-case review of emission control performance. The only
requirement would be to meet the obsolete national standard described
above.

***Weakening Safeguards Against Hazardous Air Pollution.*** I have
already described how the administration bill would repeal the current
Clean Air Act's requirement for applying "maximum achievable control
technology" (MACT) to power plants to curb their mercury emissions. The
bill requires no mercury controls until 2010 (a two-year delay over the
current law) and substitutes much weaker mercury caps in place of the
plant-by-plant MACT requirement. For 2010 through 2017, the bill's 26
ton cap represents merely the mercury reductions incidental to the
bill's phase-one caps for SO~2~ and NO~x~. Mercury cuts beyond these
incidental reductions are not achieved until 2018. In other words, the
administration's 3-pollutant bill is effectively a 2-pollutant bill
until 2018.

# 

Also repealed with mercury MACT is the current law's requirement that
EPA establish MACT standards for *all* hazardous air pollutants emitted
by power plants, not just mercury. For hazardous pollutants other than
mercury, the bill leaves only the authority to set "residual risk"
standards through a complex risk-based process, but the earliest that
those regulations are permitted to take effect is *2018* -- a full 11
years after the MACT compliance deadline of the current Clean Air Act.
Moreover, the bill repeals the Clean Air Act's "residual risk"
protections *entirely* for mercury without regard to any health risks
that remain under the bill's weaker mercury caps.[^54]

The administration bill allows unrestricted emissions trading of
mercury, something never before allowed under the Clean Air Act for a
hazardous air pollutant. The current Clean Air Act requires mercury
reductions at each power plant, based on the emissions reductions
achievable through advanced technologies applied to individual emissions
units. By allowing mercury trading, the bill would allow some power
plants not to reduce their emissions at all. Instead, they could buy
mercury emission allowances from other power plants and do nothing to
stop contamination of local lakes and streams. Some plants could even
*increase* their mercury emissions.

Indeed, EPA's own analyses of the administration bill acknowledge
mercury pollution increases above today's levels from "specific sources
in some states," due to the trading features of the bill and the bill's
repeal of the 2007 MACT standard.[^55] This dirtier outcome would not be
allowed if the plant-specific MACT standard were to remain in effect.
EPA's data also show that parts of New England, the Great Lakes, Gulf
Coast region and other areas will receive only very small reductions in
mercury deposition under the bill.[^56]

Because unrestricted trading of mercury emissions could lead to toxic
hotspots where mercury contamination increases, the Clean Air Act -- as
well as other legislative proposals (notably the Clean Power and Clean
Smokestacks Acts) \-- bar trading in mercury emissions. Hotspot risks
under the administration bill are made worse by the fact that the bill
does not require continuous emissions monitoring (CEMS) for mercury. EPA
itself has identified continuous monitoring and reporting as design
features essential to the environmental integrity of the acid rain
trading program.[^57] Mercury emissions trading is allowed even without
continuous monitoring so long as the Administrator determines that "CEMS
for mercury with appropriate vendor guarantees are not commercially
available."[^58] The responsible approach would be to make any mercury
trading (if some carefully limited program were shown to prevent
hotspots) contingent on the development of reliable continuous
monitoring systems for the pollutant.

#### III. THE ADMINISTRATION BILL ALLOWS UNLIMITED GROWTH IN Carbon Dioxide from Power Plants, WORSENING Global Warming

As you know, even though electric power plants are responsible for 40
percent of U.S. carbon dioxide (CO~2~) emissions, the administration
bill does not contain any provision to reduce or even limit the growth
in these emissions. This feature of the administration bill is not just
an omission; it is a serious affirmative mistake that will make it more
difficult for the U.S. to take responsible action in the near future to
begin addressing the real dangers of global warming.

The administration bill would set in motion major capital expenditures
at existing power plants over most of the next two decades. To implement
such a program without addressing CO~2~ emissions is to invite
shortsighted investment decisions and promote even greater resistance to
proposals to limit CO~2~ when we do decide to act. A choice to ignore
CO~2~ emissions in a power plant bill is not just a choice to leave this
decision open for tomorrow. It is a decision that will raise the cost
and difficulty of beginning to address the nation's largest source of
global warming pollution.

Such a choice is not responsible. Delay will turn what is still a
manageable threat into a runaway, unmanageable problem. In the national
security context, the current administration has no difficulty
understanding that waiting until a danger has fully developed runs the
risk of foreclosing our ability to avert that danger. This logic applies
strongly to the danger posed by global warming. If we wait until this
danger has fully developed, it will be too late to prevent.

Global warming is a problem that has enormous built-in inertia. The most
important global warming gas, CO~2~, stays in the atmosphere for
hundreds of years. The largest sources of CO~2~, fossil-fueled power
plants, have lifetimes of 50 years and more. Managing the threat of
global warming is like navigating a supertanker---to avoid running
aground we have to start altering course long before we arrive at the
reef. While in the global warming context we may not have identified
exactly how close we are to the reef or how severely our ship will be
damaged from striking it, it is a fact that if we steam ahead with our
current energy systems until we have all the evidence required to
satisfy the skeptics, we run very large risks of locking ourselves into
very large-scale unavoidable damage.

We are already unalterably committed to a future in which the
concentration of global warming gases will be substantially higher than
pre-industrial levels. To avoid reaching concentrations that are several
times pre-industrial levels, we will need to change the technology we
use to generate power and for transportation. In the decision whether to
include CO~2~ in a power plant emission control bill, this congress will
either stimulate investors to get serious about developing and using new
climate-friendly power technology or it will send a signal to
procrastinate.

Advocates of delay argue we should not act until we know exactly how
sensitive the climate is to added CO~2~ and exactly how harmful a given
temperature rise will be. Unfortunately, we cannot put the world on
"pause" while we do more research. We cannot afford to wait for
resolution of these uncertainties before we begin to change energy
investments. The CO~2~ we emit may cause a temperature rise at the high
end of published estimates, the low end, or in between; the damage done
by a specific temperature rise also may be larger or smaller. But once
we know for sure, it will be too late to change course. The fact is that
continuing on our current path will commit us to an outcome that we will
not be able to undo.

A paper by Ken Caldeira and colleagues published two weeks ago in
*Science* magazine demonstrates the danger of continued procrastination.
Using mid-range estimates of climate sensitivity, the authors conclude
that we would need to be building the equivalent of about 20
CO~2~-emission-free power plants a week worldwide, starting now, to keep
global temperatures from increasing more than 2 Centigrade.[^59]
Consider that global temperature in the last ice age was 5 C cooler than
today and you can appreciate that 2 would be a very big change. On our
current path, however, the world is on track to add the equivalent of
less than 2 CO~2~-emission-free plants per week between now and
2030[^60]. The authors go on to demonstrate that even assuming a
best-case outcome for these uncertainties, we still need a massive
increase in CO~2~-emission-free energy resources compared to current
forecasts.

Today people talk about the need to design climate policy to avoid
"premature retirement" of existing capacity. But tomorrow's "existing"
capacity is being designed and financed today and it is not being
designed to be climate friendly. Policy procrastination just locks us in
to more high-carbon capacity that will either have to be retired
"prematurely" or will emit amounts of CO~2~ that could make it
impossible to stabilize concentrations of global warming emissions at
safe levels.

The U.S. Energy Information Administration forecasts that the United
States will build the equivalent of over 1350 medium-sized fossil energy
power plants between now and 2025 (405,000 MW).[^61] The path we are on
today will result in skyrocketing emissions of CO~2~ in the U.S. and
globally. Figure 9 shows current forecasts for the U.S. and the world
over the next 25-30 years: U.S. emissions are projected to increase by
40% and world emissions by nearly 70% over year 2000 levels. These
emissions will stay in the air for hundreds of years making the task of
protecting the climate that much harder and more expensive.

![](media/image9.wmf)

Figure 9

# 

#  

# ***The Need to Set Real Policies Now***

The problem of delay is particularly intense with respect to the
electric power sector. As we know, power plants have extremely long
lives. There are plants in the U.S. more than 60 years old that are
still operating today. New plants built in the next decade or two will
be operating in the third quarter of this century, and their cumulative
emissions will determine how much the climate warms. While we
procrastinate, energy demand keeps growing and more investments are made
in power plants that are no less carbon-emitting than yesterday's
plants.

Which brings us to the choice before you. Including provisions to limit
CO~2~ in a power plant bill can speed the process of bringing advanced
technologies to market; leaving CO~2~ out will keep that activity on the
back burner. Analyses discussed in NRDC's testimony to the full
Committee in June 2002 show that it is possible to craft legislation
that limits power plant CO~2~ with modest impacts on the economy.[^62]

The administration and many in Congress have resisted including a
binding limit on CO~2~ in power plant legislation out of an apparent
belief that any binding cap will have unacceptable impacts on
electricity rates and fuel diversity. That is not correct.

For example, even the administration's own analyses conclude that some
versions of binding CO~2~ caps would have very modest impacts on
electricity rates and fuel use, even when using a number of conservative
(and we believe, flawed) assumptions.[^63] In September and October
2001, both EPA and EIA analyzed a binding carbon cap for the electric
sector using a set of requirements specified by Chairman Voinovich,
former Senator Smith, and Senator Brownback.[^64] Among the scenarios
examined by EIA and EPA were requirements to cut SO2 , NOx, and mercury
emissions by 75 percent from 1999 levels in two stages (2007 and 2012)
and to cap power sector CO~2~ emissions at forecasted 2008 levels.[^65]

EIA's report calculated this set of requirements would result in an
average electricity rate of 7.1 cents per kwh, compared to a 1999
average electricity rate of 6.7 cents per kwh. EIA projected coal
consumption in 2020 would be the same as in 1999.[^66]

While power sector CO~2~ emissions need to decline below 2008 levels,
the key point is the need to set a schedule now for limiting and then
decreasing emissions of CO~2.~ By adopting a schedule now, you can
provide the maximum lead-time for the industry and achieve long-term
reductions at the most gradual rate of change. By adopting a schedule
for limiting carbon emissions you put market forces to work to deliver
the clean energy resources we will need to meet economic growth without
disrupting the climate that strongly influences the quality of life in
our country and others around the globe.

We can do three things to limit carbon emissions from energy use. First,
produce and use energy more efficiently. Second, dramatically increase
our reliance on renewable energy resources. Third, pursue methods to
capture and permanently store CO~2~ from the fossil energy sources we
continue to use. All three of these methods will be stimulated by
adopting a program to limit CO~2~ emissions from the power sector. All
three will languish if congress ignores CO~2~ in a power plant bill.

Members of this Committee and others in congress are concerned about the
impact of climate policy on coal. The U.S. and other large countries,
including China, India, Russia (to mention just a few) have abundant
coal resources. While coal and other fossil fuels have continuing
environmental impacts, including global warming emissions, the reality
is that large amounts of coal will continue to be used.

Fortunately, technologies in commercial operation today demonstrate it
is feasible to capture CO~2~ from coal-based power plants in a form that
can be kept out of the atmosphere provided that suitable geologic
repositories are developed. As I mentioned in my June 2002 testimony to
the full Committee, in the U.S. today we inject over 30 million tons of
CO~2~ annually into oil fields to recover additional oil. Yet, none of
that CO~2~ is supplied by power plants. Rather it is pulled out of
natural CO~2~ reservoirs and piped hundreds of miles to be stuck back in
the ground.

Because industrial CO~2~ can still be emitted to the air in unlimited
amounts for free, there is not an adequate economic incentive to use and
optimize existing technology to capture these emissions. Nor is there an
adequate incentive to invest to bring down the costs of today's
gasification and CO~2~ capture systems.

Ironically, the current policy procrastination has made the U.S. coal
industry's posture a very uncertain one. No one believes that action on
global warming can be delayed indefinitely and this causes investors to
be leery of large new investments in conventional coal-fired power
plants. On the other hand, without a policy resolution, setting forth a
program to limit CO~2~ emissions over time, the uncertainty is too great
for most investors to develop and plan to deploy advanced coal
technologies like gasification and capture systems.

In sum, failure to include CO~2~ limits in a power plant bill has real
costs. It would keep the U.S. and the world on a path of accelerating
CO~2~ emissions---a path that is unacceptably risky given what we
already know about the potential of global warming to change our lives
for the worse. It would steer investments at the margin to patching up
old, existing capacity that should be replaced with modern, efficient
systems. And it would continue the policy uncertainty that operates as
an obstacle today to business planners considering what energy
investments they should pursue.

The good news is that by acting now to adopt a schedule for limiting
CO~2~ emissions we can change behavior and make it easier to address
global warming. For example, the International Energy Agency forecasts
that nearly the world will build new coal plants equal to nearly five
times the current U.S. coal plant capacity between now and 2030.[^67]
While seemingly a daunting prospect, this projection really means that
two out of every three coal power plants forecasted to be operating in
2030 are not yet designed or built. With U.S. leadership, we can design
new energy projects to rely on climate-friendly technology. Doing so
will expand our options to reconcile aspirations for improved economic
well-being around the world while preserving the climate we all depend
on to provide us with a hospitable place to live.

![](media/image10.wmf)

Figure 10[^68]

In conclusion, let me suggest it is time for all sides to stand down
from the posturing of past years on this issue and adopt a more
pragmatic approach. There are many sensible policies that can be adopted
to start limiting CO~2~ emissions and there are many compelling reasons
to do so. Working together, members of both parties and the
administration would be able to identify a path forward that all could
embrace and all could point to as a real accomplishment. NRDC will work
with you to help make that happen.

[^1]: U.S. EPA, ^"^Comprehensive Approach to Clean Power: Straw Proposal
    and Supporting Analysis for Interagency Discussion," August 3, 2001.
    ("EPA August 2001 Analysis") Available at
    <http://www.catf.us/publications/other/EPA_Straw_Proposal.pdf>.

[^2]: The results shown in the figures below are based on EPA analyses
    with the Integrated Planning Model (IPM), the standard modeling tool
    used by all stakeholders in the power plant debate. They show the
    pattern of emissions expected under the two plans, including the
    impact of "banking," which results in some reductions below the caps
    in early years in order to emissions at levels above the caps in
    later years.

[^3]: EPA calculated the incidence of premature death and illness for
    both its August 2001 proposal and the administration CSI plan using
    the same peer-reviewed methods and summarized the results in its
    technical analysis documents. The health comparisons in this
    testimony are taken from the incidence figures presented in those
    documents. See, EPA August 2001 Analysis, [supra]{.underline}, note
    1, Appendix A at 3, and EPA CSI Technical Support Package, September
    2002 at 29, at
    [www.epa.gov/clearskies](http://www.epa.gov/clearskies).

[^4]: Clean Air Task Force, \"Health Damages Estimates for Clear Skies
    Initiative and Straw Proposal,\" April 2003.

[^5]: U.S. EPA, 1997f. Mercury Study Report to Congress, Volume V:
    Health Effects of Mercury and Mercury Compounds. EPA-452/R-97-007;
    Toxicological Effects of Methylmercury, National Academy Press,
    Washington, DC, 2000.

[^6]: Centers for Disease Control, January 2003. Second National Report
    on Human Exposure to Environmental Chemicals; Susan E. Schober, et.
    Al, "Blood Mercury Levels in U.S. Children and Women of Childbearing
    Age, 1999-2000," *Journal of the American Medical Association,* 289:
    1667-74 (2003)

[^7]: Derived by the Clean Air Task Force from 2000 census data and
    fertility data from the National Center for Health Statistics.

[^8]: Toxicological Effects of Methylmercury, National Academy Press,
    Washington, DC, 2000.

[^9]: High levels of mercury in seafood linked to infertility. BJOG: an
    International Journal of Obstetrics and Gynecology. 109:1121-5,
    2002; Toxicological Effects of Methylmercury, National Academy
    Press, Washington, DC, 2000.

[^10]: While most mercury comes from coal-fired power plants, the IPM
    runs reveal that several tons of mercury come from oil-fired plants
    that would not be covered under the administration plan (or under
    the EPA 2001 proposal). These tons of mercury are also of concern
    and should be covered by mercury controls under either new
    legislation or existing law.

[^11]: Mr. Holmstead so characterized the administration's baseline
    assumptions in a presentation to the National Association of
    Regulatory Utility Commissioners in Washington on February 24, 2003.

[^12]: The deadline for ozone designations is set forth in a consent
    decree entered in *American Lung Ass'n,* et al. *v. Whitman*, D.D.C.
    Civil Action No. 02-2239 (March 13, 2003). EPA has committed to an
    end-of-2004 deadline for fine particle designations as "one of the
    Agency's highest priorities, due to the serious health implications
    of PM~2.5~ \[fine particle\] exposure. . . ." Memorandum from
    Jeffrey R. Holmstead, Assistant Administrator, to Regional
    Administrators (Nov. 14, 2002), at 3.

[^13]: Clean Air Act § 7502(a)(2)(A). *See* *Sierra Club v. EPA*, 294
    F.3d 155, 162-63 (D.C. Cir. 2002) (state must adopt all reasonably
    available measures capable of advancing the date on which the
    polluted area will attain the NAAQS). "In order for the EPA to
    determine whether an area has provided for implementation as
    expeditiously as practicable, the State must explain why the
    selected implementation schedule is the earliest schedule based on
    the specific circumstances of that area. Such claims cannot be
    general claims that more time is needed but rather should be
    specifically grounded in evidence of economic or technologic
    infeasibility." Memorandum from John S. Seitz, director of EPA's
    Office of Air Quality Planning and Standards, to EPA regional air
    division directors (November 2, 1999), at 1

[^14]: Clean Air Act § 7502(a)(2)(A). EPA also may grant a maximum of
    two one-year deadline extensions if an area has met all its
    requirements and experiences "no more than a minimal number" of
    violations of the health standards in the otherwise applicable
    deadline year.

[^15]: Clean Air Act § 7410(a)(2)(D)(I), § 7426.

[^16]: U.S. EPA, Engineering and Economic Factors Affecting the
    Installation of Control Technologies for Multipollutant Strategies,
    October 2002.

[^17]: Clean Air Act § 7412(n)1)(A) provides that EPA shall issue MACT
    standards for power plants if the Administrator determines, after a
    study, that such standards are "necessary and appropriate." The
    Administrator made this determination for power plant emissions of
    mercury in 2000.  65 Fed. Reg. 79,825 (December 20, 2000).

[^18]: Puruant to a consent decree in *NRDC v. EPA, et al.,* Case No.
    92-1415 (D.C. Circuit)**,** EPA is required to propose a mercury
    MACT standard by the end of 2003, and to promulgate the standard by
    the end of 2004.

[^19]: Clean Air Act § 7412(i)((3)(A). Under certain circumstances, EPA
    may allow a specific facility one extra year for compliance. *Id.* §
    7412(i)((3)(B).

[^20]: U.S. EPA, "Discussion of Multipollutant Strategy, Meeting with
    Edison Electric Institute" (Sept. 18, 2001), available at
    *<http://cta.policy.net/currentstatus.pdf>.*

[^21]: H.R. 999 I.H. ("Sec. 3. Other Amendments"), at 227 lns. 5-22.

[^22]: *See* 42 U.S.C. § 7502(a)(2).

[^23]: Current law permits limited postponement of the 2009 deadline
    only where the EPA makes an appropriateness determination
    "considering the severity of nonattainment and the availability and
    feasibility of pollution control measures." *Id.* § 7502(a)(2)(B).
    *See also id.* § 7502(a)(2)(C), (D). The administration's bill does
    not condition the availability of the 2015 postponement on any such
    determination. *See* H.R. 999 I.H. at 227 lns. 5-22.

[^24]: 42 U.S.C. §§ 7502(c)(5), 7503(a)(2), (c).

[^25]: *Id.* § 7502(c)(5).

[^26]: See § 3(r)(6)(D) (adding CAA § 126(d)(2)(B)(i) & (ii)).

[^27]: 63 Fed. Reg. 57356 (Oct. 27, 1998) (NOx SIP Call rulemaking); 64
    Fed. Reg. 28250 (May 25, 1999) and 65 Fed. Reg. 2674 (Jan. 18, 2000)
    (Section 126 rulemakings).

[^28]: See *Michigan v. EPA*, 213 F.3d 663 (D.C. Cir. 2000) (upholding
    NOx SIP Call approach); *Appalachian Power Co. v. EPA*, 249 F.3d
    1032 (D.C. Cir. 2001) (upholding same approach in section 126
    rulemaking).

[^29]: See *Michigan,* 213 F.3d at 675-680; *Appalachian Power* at 249
    F.3d at 1044-1051.

[^30]: U.S. EPA, "Rulemaking for Section 126 Petitions \-- Responses to
    Comments Which are Outside the Scope of the June 24, 1999 Notice of
    Proposed Rulemaking," Docket A-97-43, XII-A-01, 65 Fed. Reg. 52931
    (Aug. 31, 2000).

[^31]: 65 Fed. Reg. 2674, 2681 (Jan. 18, 2000).

[^32]: States may control these mobile sources of emissions only by
    adopting California standards. CAA §§ 177 & 209(e)(2).

[^33]: 65 Fed. Reg. at 2681/1 (emphasis added).

[^34]: H.R. 999, ("Sec. 403. Allowance System") at 14 ln. 15 -- 15 ln.
    18.

[^35]: 42 U.S.C. §§ 7475, 7501-7503. Current law requires a company to
    demonstrate that the planned construction or other change will not
    cause or contribute to pollution in excess of certain maximum
    allowable increases and maximum allowable concentrations that are
    separated from the NAAQS by a safety margin. 42 U.S.C. §
    7475(a)(3)(A). The administration's bill simply requires a
    demonstration that the planned activity will not cause or contribute
    to a violations of -- or inability to achieve -- the NAAQS itself.
    H.R. 999 I.H. (Sec. 483(c)(1), (2)) at 224 ln. 15 -- 225 ln. 8.

[^36]: Current law requires a company to demonstrate that the planned
    construction or other change will not degrade visibility or other
    air quality related values at any national park. 42 U.S.C. §
    7475(a)(5), (d). If the administration's bill were enacted, such a
    demonstration would not be required unless the plant in question
    were located within fifty kilometers of a park. H.R. 999 I.H. (Sec.
    483(b)) at 224 lns. 8-14. This despite the fact that emissions from
    major pollution sources have been shown to have a negative impact on
    parks as far as 700 kilometers away. *See* Gebhart, K., "Preliminary
    Particulate Sulfur Source Attributions for BRAVO by Trajectory Mass
    Balance Regressions" (presentation for BRAVO conference call on
    November 21, 2002) (analysis on file with the Clean Air Task Force).

[^37]: *See* H.R. 999 ("Sec. 483. Exemption from Major Source
    Preconstruction Review Requirements and Best Available Retrofit
    Control Technology Requirements") at 223 lns. 10-14 ("An affected
    unit shall not be considered a major emitting facility or major
    stationary source, or a part of a major emitting facility or major
    stationary source for purposes of compliance with the requirements
    of parts C and part D of title I.").

[^38]: *Id.* (Sec. 481(b)(1), (c)(1), (d)) at 205 lns. 1-9, 207 ln. 9 --
    211 ln. 7.

[^39]: *Id.* (Sec. 481(c)(1)((A)) at 207 lns. 17-18.

[^40]: Wygen 2 plant in Wyoming; Roundup plant in Montana; IPP plant in
    Utah.

[^41]: H.R. 999 (Sec. 481(c)(1)(B)) at 207 lns. 19-20.

[^42]: Wygen 2 plant in Wyoming; Roundup plant in Montana; IPP plant in
    Utah.

[^43]: H.R. 999 (Sec. 481(c)(1)(C)) at 207 lns. 21-22.

[^44]: Wygen 2 plant in Wyoming; Roundup plant in Montana; IPP plant in
    Utah.

[^45]: H.R. 999 (Sec. 481(e)(1)) at 211 lns. 8-18.

[^46]: *Id.* (Sec. 481(e)(2)) at 212 lns. 3-8.

[^47]: *See* http://cfpub1.epa.gov/rblc/cfm/basicsearch.cfm.

[^48]: *See, e.g.* Letter from Richard L. Goodyear, permit programs
    manager, State of New Mexico Air Quality Bureau, to Larry Messinger,
    Mustang Energy Company (December 23, 2002), at 1-2 ("The analysis
    must include a discussion of the technical feasibility and
    availability of IGCC and CFB for the proposed site in McKinley
    County . . . .").

[^49]: *See* "Background Statement on the Environmental Protection
    Agency's Top-Down Policy" (June 13, 1989) (citing S. Rep. No.
    95-252, 95^th^ Cong., 1^st^ Sess. 31 (1977)), *reprinted in*, 3 A
    Legislative History of the Clean Air Act Amendments of 1977 at 1405;
    123 Cong. Rec. A9171 (remarks of Senator Edmund G. Muskie),
    *reprinted in* 3 Legislative History at 729. *See also* *WEPCO v.
    EPA*, 893 F.2d 901, 909 (7^th^ Cir. 1990).

[^50]: Testimony delivered Assistant Administrator Jeffrey Holmstead to
    the United States Senate Committee on Environment and Public Works
    on July 16, 2002.

[^51]: 42 U.S.C. § 7491(b)(2)(A).

[^52]: H.R. 999 (Sec. 483(a)) at 223 lns. 10-18.

[^53]: MSB Associates, analysis using EPA list of BART eligible sources
    exceeding 750 MW (analysis on file with the Clean Air Task Force).

[^54]: § 3(a)(5).

[^55]: See U.S. EPA, "Technical Support Package for Clear Skies,"
    Section B: Human Health and Environmental Benefits, at 44.

[^56]: *Id.*

[^57]: Testimony of Jeffrey Holmstead, Assistant Administrator, Office
    of Air & Radiation, U.S. EPA, Before the Subcommittee on Public
    Health of the Committee on Health, Education, Labor and Pensions,
    United States Senate, at 4-5, September 3, 2002.

[^58]: § 405(a)(2)(B)(ii).

[^59]: K. Caldeira *et al*., "Climate Sensitivity Uncertainty and the
    Need for Energy Without CO~2~ Emission," *Science* **299,** 2052
    (2003).

[^60]: International Energy Agency, World Energy Outlook 2002, October
    2002.

[^61]: U.S. Energy Information Administration, Annual Energy Outlook
    2003.

[^62]: See Testimony of David G. Hawkins on S.556, June 12, 2002.

[^63]: A number of flaws in the administration's analyses of
    "four-pollutant" bills are described in NRDC's testimony of June 12,
    2002 at the full Committee hearing on S.556, the Clean Power Act.
    Testimony of David G. Hawkins at 12-16.

[^64]: Energy Information Administration, "Reducing Emissions of Sulfur
    Dioxide, Nitrogen Oxides, and Mercury from Electric Power Plants,"
    September 2001. ("EIA S-V-B report") and U.S. EPA, "Analysis of
    Multi-Emissions Proposals for the U.S. Electricity Sector," October
    2001.

[^65]: Letter of June 8, 2001 from Senators Smith, Voinovich, and
    Brownback to John Weiner, EIA, reproduced in EIA S-V-B report at
    Appendix A. Compliance with the CO~2~ cap could be achieved with
    on-system reductions or credits for "sinks" enhancements or
    reductions from other source categories. EIA's report calculated
    costs assuming that only CO~2~ emission reductions from U.S. energy
    facilities would be used for compliance.

[^66]: While this result represents a decrease in coal consumption from
    no-control forecasts, EIA's report assumed no penetration of coal-
    gasification technology in the electric sector, even by 2020. This
    is inconsistent with the Department of Energy's programmatic goals
    for this technology. EPA's report on the S-V-B scenario forecasts
    smaller price and fuel impacts than EIA's, due to EPA's broader
    assumed trading options than EIA assumed.

[^67]: IEA, World Energy Outlook 2002, October 2002.

[^68]: GW=gigawatt, which is 1000 MW of capacity. Current U.S. coal
    capacity is just over 300 GW.