Air & Water Protections May Ease

The Bush administration may narrow the scope of the Clean Water Act and drop some investigations whether coal-burning power plants, refineries and factories are violating clean air laws.

The Los Angeles Times reports administration officials have drafted a rule that would exempt up to 20 million acres — a fifth of all wetlands outside Alaska — of wetlands from the Clean Water Act.

The draft rule would also exempt waterways without a groundwater source and streams that flow for less than six months a year — designations that could hit dry Western states pretty hard.

"Up to 80 percent to 90 percent of streams in the Southwest would not fall under the Clean Water Act if this rule were to go forward," National Wildlife Federation analysts Julie Sibbing told the newspaper.

The rule change, written by the Justice Department and the Army Corps of Engineers, is only in draft form and cannot become federal policy without months of hearings. The public has already submitted over 130,000 comments about rewriting the rules.

The new rule is a response to the Supreme Court's ruling in 2001 that limited federal authority over certain waterways. The change, if imposed, would allow more development on land covered by the exempted waterways.

It would also represent one of the more significant challenges by Bush administration officials to the federal system of environmental rules, along with the changes made this year to Clean Air regulations.

During the Clinton administration, the government began suing 51 aging power plants under the Clean Air act and succeeded in forcing several to install hundreds of millions of dollars of pollution-control equipment.

Since then, about half the companies that operate the plants have settled with the Justice Department, resulting in estimated cuts of about 7 million tons of pollutants annually.

This year, the Bush administration revised the Clean Air rules to allow older factories to avoid mandatory pollution controls when they make limited capital improvements to their facilities.

Administration officials say the rule changes last December and again in August cut red tape that prevented factories from upgrading equipment because of costly anti-pollution controls. At least one EPA official told Congress the changes would not weaken enforcement efforts.

The Environmental Protection Agency said Wednesday that for now it is vigorously pursuing Clean Air cases it already has filed against various plants, but will take a case-by-case approach to decide whether to pursue or set aside pending investigations.

However, an EPA official said senior agency managers were told Tuesday night at a meeting in Seattle to set aside current investigations and enforcement work unless past activities violated the newly loosened pollution rules.

The official, speaking on condition of anonymity, said such a retroactive application of new regulations to possible past violations was unprecedented.

Sen. Jim Jeffords, I-Vt., a member of the Senate Environment and Public Works Committee, said the instructions — attributed by the agency source and an environmental group to J.P. Suarez, EPA's enforcement chief — confirm his worst fears.

"First the administration weakens our clean air law, and now it won't enforce it," he said. "Instead of fighting pollution, this administration is at war with the Clean Air Act. Innocent bystanders, such as children, the elderly and the infirm, will be the principal casualties."

Eric Schaeffer, a former EPA civil enforcement chief who now heads the Rockefeller Family Fund's Environmental Integrity Project, said the instructions could lead to EPA's dropping of investigations involving more than 70 power companies and 50 other industrial facilities.

Scott Segal, director of the Electric Reliability Coordinating Council, a group of power companies, said Schaeffer's characterization of the Seattle meeting is misleading.

"All indications are that existing filed cases…are being aggressively pursued by the federal government," he said.

Twelve states and several Northeast cities sued the EPA last month to block the new Clean Air rules, which they argue will weaken protections for the environment and public health.

The General Accounting Office, Congress' investigative arm, last month said EPA's revisions could lead to reduced fines and pollution controls in some of the clean air lawsuits.

According to The Washington Post, EPA air policy chief Jeffrey Holmstead told two Congressional committees in July 2002 that "we do not believe these (rule) changes will have a negative impact on the enforcement cases." Two former EPA officials claim he was told otherwise.

Holmstead denies misleading Congress.

A study by a Rockefeller Family Fund project and Council of State Governments said changes in the way industrial plants are allowed to count emissions would increase by 1.4 million tons outputs of sulfur dioxide, nitrogen oxides, volatile organic compounds, carbon monoxide and soot.