Local States Win To Stop Bush Desire for More Polluter Loopholes in Clean Air Law

The image above is from the National Geographic "Map Machine", with data by the World Wildlife Fund. It shows the areas considered "critical" in the US ecoregions on our present course by 2020. Of course another point would be that we fail to live in a vacuum--human health and economic issues are impaired by environmental things as well.

The point of today's post is the posted article below about the win against attempts to put even more loophole in the Clean Air Act (which is instead starting to look instead like the Polluters Appreciation Act). The outcome below is another example of the localism and sustainability: only institutionalizing more locality protections within a federal rubric will bring about sustainability. The whole dynamic of Toward a Bioregional State is along this line.

Affirming local states' environmental, health, and economic rights OVER the federal government is the only way to sustainability. Note that this was not a Democratic Party issue. Note that this was not a Republican issue. This was a local state protections issue attempting to maintain what their citizens wanted in terms of established and bipartisan accepted protections against a government and two-party system increasingly rogue that has nothing to do with democracy at all.

Another interesting point is that by bringing up the actual environmental and social costs of such choices of energy supply, it encourages providers to move to other choices, instead of increasingly subsidizing themselves and outselves into a cancer hole of oblivion...

A difficulty is that this was resolved in the court framework, i.e., it all depended upon the whim of a judge. Within the bioregional state, as mentioned in a previous post, the federal government would be without any form of priority of jurisdiction over health or environmental issues per se. Certainly they could set standards, and be a citizen's recourse to police against corruption on a state level standard, though the issue is one of priority. It is mistaken for a federal government to utilize "standards" as an interpretation of a glass ceiling instead of a foundation. Using "standards" as a glass ceiling is only aimed at demoting local desires for making their own states more sustainable, when standards should only be lower level foundational instead of a form of enforced upper bounded uniformity. From a previous post on a similar issue of labelling:

"Consumer rights shall always trump supply side rights of organizations and sellers when it comes to any of the issues of (a) basic knowledge about the commodity; (b) the capacity for discriminative choice from the point of view of the consumer which shall be maintained; (c) when it comes to issues of individual and public health, (d) of ecological interactive effects, and (e) of economic sustainability.

In issues of human health, ecological issues, and economic sustainability, the smaller jurisdictional level has more awareness, knowledge, and interest in these endeavors; therefore jurisdictional sovereignty of smaller jurisdiction over the larger state should be the uniform principle in these issues of material commodity regulation."

Of course one of the theoretical dangers of this is that states will force on their populations lower standards than the federal government in health or envrionmental laws. However, this has hardly been the case. Typically, first, states have always been at the forefront of aiding human health and environmental concerns against an unresponsive larger federal level. Thus states with jurisdictional priority within federal foundational standards (instead of glass ceiling standards) I think is a better principle to bring about toward sustainbility, in the bioregional state.

Second, moreover, this fails to mean the removal of a larger state, which would be useful for citizens to take their more local state to court over such malfeisance. The larger state is a recourse in affirming various more bioregionally specific areas with their own interests as a priority jurisdictionally in certain areas OVER the federal government, with the federal government being a backup recourse to support bioregional sustainability. As mentioned in some of the quotes of the bioregional state book, others would agree like Wil Burns, Editor in Chief for the Journal of International Wildlife Law and Policy, who opined:

"I think [some] folks...believe that "bioregionalism" means hiding under rocks and ignoring the impact of national political decision making on local biospheres, think again. For example, one of the leading bioregional lights, David McClosky, concludes: 'Massive ecosystem conservation proposals can play a very significant role [in the restoration of natural ecosystems, as well as human health and economic issues.] This is necessarily beyond cavil that the Chief Executive can exert a tremendous amoung of influence. Thus, to dismiss who will be essing executive orders on environmental issues, and passing on legislation, is to ignore an integral issue for everyone who embraces bioregionalism. Thus, I think discussion of national political issues is wholly germane.'" [Toward a Bioregional State, p. 22]

This gets back to the definition I helped to craft at Wikipedia on the bioregional state: the bioregional state fails to mean that social frameworks of larger federal/nation-state laws are trumped, only that environmental and health concerns take more local jurisdictional priority:

"Bioregional democracy (or the Bioregional State) is a set of electoral reforms designed to force the political process in a democracy to better represent concerns about the economy, the body, and environmental concerns (e.g., water quality), toward developmental paths that are locally prioritized and tailored to different areas for their own specific interests of sustainability and durability. This movement is variously called bioregional democracy, watershed cooperation, or bioregional representation, or one of various other similar names--all of which denote democratic control of a natural commons and local jurisdictional dominance in any economic developmental path decisions--while not removing more generalized civil rights protections of a larger national state." [1]

Locals Win Against Feds:
Judges Overturn Bush Bid to Ease Pollution Rules
By Michael Janofsky
The New York Times

Saturday 18 March 2006

Washington - A federal appeals court on Friday overturned a clean-air regulation issued by the Bush administration that would have let many power plants, refineries and factories avoid installing costly new pollution controls to help offset any increased emissions caused by repairs and replacements of equipment.

Ruling in favor of a coalition of states and environmental advocacy groups, the United States Court of Appeals for the District of Columbia Circuit said the "plain language" of the law required a stricter approach. The court has primary jurisdiction in challenges to federal regulations.

The ruling by a three-judge panel was the court's second decision in less than a year in a pair of closely related cases involving the administration's interpretations of a complex section of the Clean Air Act. Unlike its ruling last summer, when the court largely upheld the E.P.A.'s approach against challenges from industry, state governments and environmental groups, the new ruling was a defeat for the agency and for industry, and a victory for the states and their environmentalist allies.

In the earlier case, a panel including two of the three judges who ruled on Friday decided that the agency had acted reasonably in 2002, when it issued a rule changing how pollution would be measured, effectively loosening the strictures on companies making changes to their equipment and operations.

But on Friday, the court said the agency went too far in 2003 when it issued a separate new rule that opponents said would exempt most equipment changes from environmental reviews - even changes that would result in higher emissions.

With a wry footnote to Lewis Carroll's "Through the Looking Glass," the court said that "only in a Humpty-Dumpty world" could the law be read otherwise.

"We decline such a world view," said their unanimous decision, written by Judge Judith W. Rogers, an appointee of President Bill Clinton. Judges David Tatel, another Clinton appointee, and Janice Rogers Brown, a recent Bush appointee, joined her.

The winners this time - more than a dozen states, including New York and California and a large group of environmental organizations - hailed the decision as one of their most important gains in years of litigation, regulation and legal challenges under the Clean Air Act.

The provision of the law at issue, the "new source review" section, governs the permits required at more than 1,300 coal-fueled power plants around the country and 17,000 factories, refineries and chemical plants that spew millions of tons of pollution into the air each year.

"This is an enormous victory over the concerted efforts by the Bush administration to dismantle the Clean Air Act," Eliot Spitzer, the New York attorney general, whose office led the opposition from the states, said in an interview.

Mr. Spitzer, who is running for governor, said the ruling "shows that the administration's effort to misinterpret and undermine the statute is illegal."

Howard Fox, a lawyer for Earth Justice, which represented six environmental and health groups in the case, called the ruling "a victory for public health," adding, "It makes no sense to allow huge multimillion-dollar projects that drastically increase air pollution without installing up-to-date pollution controls."

The E.P.A. issued only a brief statement, saying: "We are disappointed that the court did not find in favor of the United States. We are reviewing and analyzing the opinion."

The decision is unlikely to be the last word; several circuit courts or appeals courts have considered or decided related cases, and the issue may eventually reach the Supreme Court. Some in Congress say the uncertainty demands an overhaul of the Clean Air Act itself, but there has been no real movement in that direction in recent years.

The new ruling addressed the administration's effort in 2003 to offer relief to energy companies that faced costly settlements of litigation brought by President Clinton's E.P.A. The agency proposed exemptions for companies whenever upgrades to their equipment amounted to less than 20 percent of the replacement cost of the equipment. In effect, that made perennial repairs of old equipment a more attractive alternative in many cases than its outright replacement.

Energy companies said the two rules the administration proposed in 2002 and 2003 would help them expand energy supplies at lower cost to consumers. But environmentalists said the change would result in just the kind of increased pollution that the law was intended to control.

The Clean Air Act calls for companies to build plants with up-to-date control technologies, and the new source provision was a way to ensure that as time goes by, pollution controls must be modernized along with the plants themselves.

Industry groups, which had challenged the first E.P.A. rule last year as not being flexible enough, were aligned with the agency this time. In general, they have been close partners with the Bush administration in environmental matters, pushing for greater economic considerations in the creation of any new policy.

The 20 percent threshold in the overturned rule would have enabled plant operators to make many repairs and upgrades without spending additional tens of millions of dollars for more advanced pollution controls. In settlements under the old rules, some companies faced costs of more than $100 million.

"This is a terrible decision," said Scott Segal, director of the Electric Reliability Coordinating Council, a trade organization, arguing that the "any physical change" definition created financial instability for plant operators who spent as much as $800 million for a new boiler.

He and other industry leaders expressed hope that the court ruling might induce Congress to pass new legislation that would include New Source Review; a step that he said would make it easier for plant operators to plan for their future upgrades and investments.

John Engler, president of the National Association of Manufacturers, called the ruling "a significant setback to business efficiency" and environmental quality.

The government has 45 days to decide whether to seek a review of the ruling by the entire appeals court.

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http://www.truthout.org/docs_2006/031806Y.shtml