Here in the studio with me, Dina Cappiello of The Associated Press and William Yeatman of the Competitive Enterprise Institute. Joining us from NPR in New York City is David Hawkins, director of the Climate Center at the Natural Resources Defense Council. I want to turn to you now, William Yeatman. Do you agree that this cross-state pollution is indeed a serious problem?
MR. WILLIAM YEATMAN 10:21:06
Indeed. I don't believe that pollution respects a state boundary. And indeed I believe it's a legitimate purpose of the Environmental Protection Agency to adjudicate interstate disputes over pollution. However, I also believe that it must be done fairly. And with regard to this cross-state air pollution and its previous iterations, what we've seen is politics skew fairness actually two ways.
MR. WILLIAM YEATMAN 10:21:35
When the Bush Administration proposed it, it was too lenient. They catered to industry. And now we've gone the other way. We've got the one proposed in July 2012 by the Obama Administration. It's too stringent. It doesn't afford states proper safeguards to ensure that they're not overcommitted. They're not doing more than their fair share. If only it were so easy, as what the previous speaker Mr. Hawkins had said, the process of allocating exactly what burden each state should submit to. But that's not what EPA has done.
MR. WILLIAM YEATMAN 10:22:11
I think we would all agree that's a fair way to do it, to say you've committed X amount of pollution to this problem, therefore solve that amount of pollution. Instead, EPA twice — and, again, when the Bush Administration did it, they skewed with the language and interpreted it creatively in order to make it lenient. And now this most recent regulation has done the opposite, more stringent — too stringent.
So I'm not quite understanding. What you're saying is that the EPA is imposing too stringent regulations on those coal-producing states that do somehow pollute other states. You are agreeing that there is that pollution that is crossing borders.
Indeed, very much so. But what we need is precise information about that pollution. EPA didn't regulate on the basis of one state's exact contribution to another state's nonattainment for these air quality regulations. Instead, it interpreted the language such that there weren't these safeguards to ensure that states weren't required to do more than their fair share.
So what I'm saying is that, of course, the EPA should adjudicate these air quality problems among states. That's a proper rule of the federal government. However, it must do so fairly. And to that end, all they got to do — it's pretty simple. State X contributed X amount — or, you know, Y amount of pollution to state Z and just require them to do — to reduce pollution by that amount. But that's not what the agency has done, both in 2005 under the Bush Administration and in 2012.
Well, let me see if I can help you out here, Diane. So what he's talking about is, in the 1990 Clean Air Act amendments, when they went back and adjusted the good neighbor provision of the Clean Air Act, Congress basically said that the EPA had the right to address pollution from upwind states that significantly contributed to pollution downwind, but…
Significantly contributed. But as Congress does, it didn't really define that very well.
What do we mean by significant? And so that's kind of at the crux of this debate is, how does the EPA scientifically determine significant? In that 1907 Supreme Court case that you referenced, what I thought was so fascinating about that is that was smelters on the Georgia-Tennessee line. It was really bad pollution that was killing forests, very visible. This is a whole new world. We're in 2013 where a lot of this is invisible.
It's hard to kind of — you know, some states are downwind and upwind. Ozone — bad ozone days, that's a photochemical reaction. Ozone does not come out of a stack. It's NOx that comes out of a stack that reacts with sunlight. It's very weather dependent. It's always worse when it's hot and sunny in the summer.
So this is very, very complicated science. And then second part of what he was trying to say is the significant contribution and how EPA addresses that. And when the D.C. circuit threw this out last August, what they basically said is that, in some cases, EPA was requiring states to not only deal with a significant contribution but went beyond that.
So, David Hawkins, go right ahead. I know you wanted to jump in.
Thank you, Diane. Yes. What EPA has done in this case is a very common sense approach. It basically asked two questions about the polluting states. One, do they contribute significantly to the pollution downwind in their neighboring states? And they found that they did. And no one has challenged that finding. Second, they asked, are there affordable control measures that can be used in those upwind states to cut pollution? And if there are, they should be applied to those big sources of pollution, just the way those kinds of measures have been applied in the downwind states.
It's that second step that the court intervened and created its own rules saying, no, we think a different approach ought to be followed that involves a much more precise measurement of exactly the contribution from those upwind states. You know, this reminds me of that old story about the queen who orders a featherbed.
And, you know, it has to be precisely the right amount of feathers. One feather too much, one feather too little, and the seamstress gets executed. Well, that's what the court did here, and it's not the court's business. Congress did not write a specific formula for EPA. It told EPA to use its good judgment and come up with a rule that fairly addressed the problem. EPA has done that.
David spoke of common sense. Well, what is more common sense than requiring states to reduce emissions by what they've contributed to the problem? He spoke in the first segment at the outset praising the precision of EPA's air quality models, the ones used to justify this rule. He seems to disown that praise in the second segment.
EPA does have the modeling capability to identify precisely, exactly what a state is contributing to the problem. I think a fair common sense response solution is to just require the state to reduce emissions by the amount it contributed to the problem and no more, no less.
What about that, David Hawkins?
What EPA has done is a much more appropriate approach, which is to say, what are the cost-effective measures that can be applied? Because if you follow Mr. Yeatman's approach, you wind up with some circumstance where requiring the upwind state to do exactly what it has contributed to the problem might impose very challenging costs on that state, which EPA judged would not be fair.
So it chose an approach that did not drive everything from the number of molecules of contribution but rather used a common sense approach of two steps. One, is the upwind state a significant polluter? And, two, are there affordable things to do to cut that pollution?
And so EPA has applied a rule that says, we're not going to require the upwind states to do more than what's affordable, but we're not going to allow them to do less than what's affordable.
All right. And, Dina, tell us about the Supreme Court case that's being argued today.
Well, actually right now — yeah, so this is a case — so the lower court basically knocked down the cross-state air pollution rule on the grounds that David just kind of laid out. And so the EPA is appealing the case hoping to keep the regulation intact. And what's really interesting about this — so it's EPA is arguing for the appellants. On the other side is the Texas solicitor general. And so there are 11 states challenging it — some industry groups, local governments.
And what the arguments are is basically what the lower court said was that the EPA didn't really give states a chance to kind of draft their own plans before the Fed stepped in. So I think that one of the overarching themes of both the Supreme Court case and another air case being argued today in the district court is this concept of federal overreach. Is the EPA going beyond the bounds of the law?
And, William Yeatman, you think the current law is really unfair to those upwind states.
Indeed. When I was speaking about the unfairness of the cross-state air pollution rule that's now being argued before the Supreme Court, I was speaking about the content of the rule, what it requires, the insufficient safeguard to ensure fair burden sharing.
What we just heard about were the procedural problems with the rule insofar as states were not afforded the opportunity to craft their own responses, you know, tailor them to local conditions and local environment and whatnot. So the rule is actually being challenged on both the content reasons that I brought up, fairness, and also the procedural concerns that were just brought up.
And joining us now is Gene Trisko. He's chair of the Government Relations Committee for the Midwest Ozone Group. That's a group of large utility companies which has filed a brief in the Supreme Court case being heard today. Welcome to "The Diane Rehm Show," Gene.
MR. GENE TRISKO
Hi, Diane. It's a real pleasure to join you. Appreciate the invitation.
Thank you. Tell me what your reaction was to the petition filed by the East Coast governors with the EPA yesterday.
Sure. It did not come as a surprise. The timing was certainly intended to coincide with the Supreme Court hearing on the transport rule case today. But I think what's important background to recognize, that these same states invited — the Northeastern states invited the Midwest and Southeastern states to join the OTC about six months ago. Letters were sent from a variety of Northeastern states out to the Midwest, basically to the states that were looking at being involved in this petition.
And for the eight or nine Midwest and Southern states that were invited to join the OTC, all respectfully declined to do so. And I was just reviewing the letter from the North Carolina Department of Environment and Natural Resources that was sent back to the requesting Northeastern states on June 20 of 2013. And let me just summarize that letter. North Carolina says they take their Clean Air Act duties very seriously addressing nonattainment in the state and its obligations to the downwind neighbors.
They point out that the future year emissions modeling runs performed by USEPA included significant overestimates of the emissions for the utility sector in North Carolina. And they conclude that, while they appreciate the invitation, they do not believe that North Carolina becoming part of the OTC is either necessary or appropriate in order to address air quality transport issues.
All right. And let me interrupt for just a moment to remind you that you're listening to "The Diane Rehm Show." Are you saying, Gene Trisko, that you disagree that the upwind states are causing downwind states' rising pollution levels?
I would disagree that they are causing rising pollution levels in downwind states. Let me inform this debate with some relevant data. The Midwest Ozone Group largely focuses on technical analysis and modeling analysis of air quality. Much of the discussion this morning has concerned the role of coal-based electric generators in contributing to ozone issues.
In 1999 — now, I'm going to talk nationally for a moment. In 1999, coal generation units contributed 22 percent of total NOx emissions in the United States. In 2011, that 22 percent share had dropped to 12 percent. Meanwhile, the share of NOx emissions from mobile sources — and that's on-road and off-road vehicles — increased from 55 percent to 65 percent.
So you're arguing that it's within each state itself that the pollution is rising from automobiles and other polluting elements.
Diane, the modeling clearly shows that each state is its own principal cause of air pollution. Now, you may have some exceptions like Connecticut that's a relatively small state that's going to be influenced by the State of New York, the State of Pennsylvania and so forth. But in the Northeast, the dominant characteristic that is contributing to ozone or urban smog problems is the I-95 corridor.
That is what led Congress, not EPA, but Congress in the 1990 Clean Air Act amendments to designate an ozone transport region in the Northeast basically running from the northern Virginia suburbs up to Maine. That region coincides with the location of the I-95 corridor, which is a huge source of ozone pollution for the Northeast.
And what about the Supreme Court case? I know you filed a brief in that case. How do you think it's going to be decided?
I probably join Dave Hawkins in this in failing — not being inclined to predict the outcome of Supreme Court litigation. It's a very perilous undertaking. We certainly hope that the court will find in favor of the decision of the lower court, the D.C. Circuit Court of Appeals, which has the greatest expertise in Clean Air Act litigation. Now, the court, when it looked at the EPA transport rule, found that EPA had overstepped the bounds of the Clean Air Act by, in effect, going overboard with the cost-effectiveness analysis that Dave Hawkins described.
They required — EPA required mission reductions in upwind states that were greater than the state's significant contribution to downwind states. And that is what led the court to describe a series of redlines for, in effect, circumscribing the amount of pollution reduction that could be required in upwind states.
Gene Trisko, chairman of the Government Relations Committee for the Midwest Ozone Group. Thank you so much for joining us.
Thank you, Diane.
And short break here. When we come back, your comments, questions. Stay with us.
And welcome back. We're talking about EPA rules and regulations applying to Northern states, Southern states, the amount of pollution that crosses state lines. There's a Supreme Court case being heard today involving the EPA's cross-state good neighbor rule. David Hawkins, what's your reaction to what Gene Trisko says? Is the data used by governors in this petition outdated, inaccurate?
Right. No. There are two big pollution problems that are afflicting the downwind states. One is soot, fine particles. When we breathe them in, it contributes to respiratory disease that is killing more than 10,000 people a year, premature deaths. The second problem is smog, ozone smog. Now, on the soot problem, that is mostly caused by sulfur dioxide. And motor vehicles do not contribute to that problem at all. That is almost entirely associated with coal-fired power plants and those coal-fired power plants that have failed to install modern pollution controls.
On the smog problem, motor vehicles are indeed a big problem. And the federal government is the primary regulator of tailpipe standards for cars and trucks and busses. And indeed, the Ozone Transport Region and the petitioning states have been leaders in the state fight to more stringently regulate those motor vehicle standards. They went to the Supreme Court again, earlier, in order to defend their right to adopt stricter standards on motor vehicles. So to argue that the states that are filing this petition are not doing their part simply ignores the facts.
Now, here's an email from Deb, broadening this discussion somewhat. She says, "In addition to what New Hampshire Gov. Maggie Hassan said about air pollution, there's also a huge problem with water pollution. Coal-fired power plants produce high levels of mercury and sulfur which then end up in our lakes and streams."
She must be from Upstate New York. I covered this issue a lot in the Adirondacks. So sulfur dioxide, as David mentioned, generates soot, which is a fine particle that you inhale, but it also leads to acid rain. And acid rain destroys forests. It also goes into lakes. Mercury goes into lakes, becomes methylmercury. It goes into fish. It's consumed.
But, now, is that part of the suit that's being argued today?
Well, the cross-state air pollution does cover sulfur dioxide.
Well, air pollution goes into water.
Is the connection.
So it's all of a piece.
Correct. But the lower court today, the D.C. Circuit, is hearing a different case on mercury and air toxics, right. And that goes right to the heart, I think, of what this questioner's talking about. And that is a separate rule that deals with mercury and air toxic admissions from coal-fired power plants primarily, which has never really been regulated on the federal level.
And that would go do a great deal in terms of what I think she's talking about, which is mercury in waterways that is converted into methylmercury that gets into fish.
OK. Let's go first to Will, in Exeter, N.H., where Gov. Hassan spoke to us from today. You're on the air, Will.
Good morning, Diane.
I want to be a voice of reality. Twenty-seven years ago, I moved from the south shore of Long Island in New York to New Hampshire and lived in — I've lived in the Exeter area all that time. Two years after I arrived here, I came down with the worst case of asthma you can imagine. And I've been suffering with it ever since. Thanks to the miracle of modern pharmacology, I'm doing OK. But I just want to go on record that this is a real problem in this state. And it's a problem with a face. And I just, you know, a face and a voice, and I would just want to put my voice with it.
All right. Will, thanks so much for your call. I'm sure throughout the hour, William Yeatman, we'll hear from a number of people who feel the same way. What do you say to them?
Oh, indeed. I mean, I certainly sympathize with anyone afflicted with a medical ailment, especially one exacerbated by pollution. Again, my take on it is it has to be fair. Again, I do want upwind states to be responsible for the pollution they cause, but I don't want them to be responsible for pollution that they don't cause.
But you're saying that the states who are bringing suit are exaggerating the affects that are coming to them from neighboring states, even though the EPA has imposed exhaust regulations on automobiles.
Indeed. And I think we're talking about these two separate issues at the same time, so it's easy to conflate them. I was speaking with regard with the fairness issue, with respect to EPA's cross-state air pollution rule. With respect to the governor's petition, which really gets the different pollutants, in particular, volatile, organic compounds and from different sources rather than stationary sources, like the issue being litigated before the Supreme Court, the governor's petition really pertains to tailpipe emissions from cars.
And, again, I want the information to be there. The modeling exists. I'm certainly all for EPA performing an intensive study using those excellent models that Mr. Hawkins spoke about in the first segment, to identify the exact contribution of upwind states to downwind states problems, and then act accordingly. That's what I would like the basis of these solutions to be.
Diane, yes, fairness is a key issue. And we need to look at this fairness issue from the standpoint of the breathers. There's a saying that a justice delayed is justice denied. Well, justice has been delayed in this matter for far too long. There are kids that were born in the early 1990s that are now old enough to vote, and they're still breathing polluted air from these upwind pollution sources.
There are 400,000 cases of asthma a year that are exacerbated by the pollution that we're trying to deal with. And there has been 20 years of litigation and delay in cleaning it up. So to talk about fairness to the polluters and ignore fairness to the breathers is simply a way of having your priorities backward.
All right. To Linda in Murray, Ky., you're on the air.
Well, thank you, Diane. My question is the coal-fired plants are producing energy that is being sold to the Northeast. What percentage of that energy is being used by the Northeast? And what does the panel think they should then help clean up?
Well, it's a relatively small percentage. But the fact is that the Northeast electricity consumers will in fact pay the costs of cleaning up the power that they purchase because those costs will go into the prices that are bid into the market from those polluting power plants. And the governors of the Northeast are willing to do that.
They recognize that it's a bargain, paying a little bit more for cleaner electricity in order to protect kids against asthma attacks, in order to protect seniors against premature death. That is a great bargain, and the Northeastern petitioning states are willing to try to get that. But they are being — they are being interfered with by this constant litigation and going back to court every time the polluters lose.
All right. To Melissa, in Cincinnati, Ohio, glad to have you with us. Go right ahead.
Thank you, Diane. Well, Ohio is actually one of the most coal-consumptive states in the nation. About 90 percent of our electricity comes from burning coal. For that reason and many others, it's absolutely essential that the federal government come in and do enforcement. There have been numerous citizens where precisely that has been the point.
We've asked the USEPA to come in and enforce the Clean Air Act because the Ohio EPA lacks the will to do so. Now, I will also mention externalized costs and the cost-benefit analysis is really key to this whole problem. Coal-fired power plants did not install scrubbers for years on very old plants because they were grandfathered into the original Clean Air Act, and it was easier and cheaper for them to do that.
Now we're looking at cases like in 2007 Ohio Citizen Action et al. vs. AEP et al. There were several Northeast states enjoined in that case that resulted in a $4 billion fine, the biggest fine of its time. And AEP made the decision to close down its coal plants, many of them, as a result of that. That's what gets things done. And so I would definitely like to hear your panel talk about externalized costs and how they relate to people's healthcare as well.
All right. Thanks for your call. Dina?
Well, I think that the caller made a really interesting point. I think that one of the things you have to consider as a backdrop to all of this is that coal is kind of going by the wayside for a lot other reasons, right? I mean, natural gas is cheap. We have a fracking boon that is, you know — that's a whole other environmental issue — that is creating a lot of natural gas. And we're already seeing kind of this switch from coal to natural gas-fired plants.
On top of that, as she said, these environmental regulations are kind of like the last nail in the coffin, so to speak, whether you talk about the mercury and air toxic standard, cross-state air pollution rule, carbon rules that are coming down the pipeline. So a lot of people would say, looking at both of these court cases that, you know, the impact of this — how big of an impact is it going to be if coal's already kind of on the way out?
Dina, talk about that other case regarding mercury emissions. Tell us about that.
So this deals with a rule that came out under Obama — both, actually, are Obama administration rules — just so the audience understands that. And this deals with mercury and air toxics. Mercury is a neurotoxin. Evidence shows that people who consume mercury through fish, in the form of methylmercury, it diminishes IQ, et cetera. So this is the first time ever, after decades — David mentioned this decades of delay — 1990 gave EPA authority to regulate mercury and air toxins from power plants. And it took until the Obama administration's first term to do it, so, what, 20-odd years.
And so they did it, and it's being litigated in court and challenged by industry and states and local governments — same scenario with the Supreme Court case. And what they're arguing is two-fold. They say that this max rule is not necessary because other regulations on power plants, like scrubbers for SOX, (sic) sulfur dioxide, et cetera, have already helped reduce these pollutants. And they're also challenging the rule and saying that the EPA did not do an adequate cost analysis.
It's a very expensive rule. I think it's, what, $9.6 billion, something like that. And they needed to do a more adequate cost analysis. And so that's going to be a case to watch because it's a first ever regulation. This is a huge deal. Lisa Jackson was at the Children's Hospital in D.C., saying this is going to help children's IQ. It was a huge, huge deal for this administration.
Oh, I would just like to jump in on that real quick. We spoke before about the cross-state air pollution rule. We spoke much this hour about that rule. That's a legitimate purpose of the EPA, to adjudicate air pollution concerns among states, interstate pollution. This mercury rule is an illegitimate regulation if there ever was one. She spoke of the cost, $9.6 billion a year. The benefits in mercury were $6 million a year. And those accrue to — and this is no joke.
This is the regulatory justification for this particular rule. It cost $9.6 billion — is to protect a supposed population of pregnant subsistence fisherwomen who consume more than 200 pounds of self-caught fish from exclusively the 10 percent most polluted bodies of fresh inland water during their pregnancy. Notably, EPA never identified a single member of this punitive population rather they were modeled to exist.
And you're listening to "The Diane Rehm Show." David Hawkins, do you want to respond?
Yeah, I think it takes a certain kind of hutzpah to attack a rule that is trying to cut down on brain poisoning pollution as illegitimate. This rule to control mercury and other toxics from power plants is another example of a long-delayed process. I filed NRDC's first comments to regulate mercury from power plants back in 1973. So here we are 40 years later, and we're still arguing about whether it ought to be done.
The fact is that the power plants are the largest U.S. source of mercury pollution. All 50 states have fish advisories in some or all of their lakes and streams. And the fact is this is a pollutant that builds up in the environment, gets into the food chain, affects the quality of the fish that we eat, and women and others should not have to worry about whether the fish that is otherwise so nutritious for them is going to harm their offspring. That's just an issue that, as a civilized society, we ought to fix. And that's what EPA is trying to do.
All right. And you're listening to "The Diane Rehm Show." Let's go to Steve in Annapolis, Md. You're on the air.
(unintelligible) my call. I just wanted to make a point about the Chesapeake Bay region and the Chesapeake Bay Programs air-shed map, which is roughly 570,000 square miles or eight times the size of the Chesapeake Bay watershed, where the nitrogen oxides produced from combustion are deposited into the Bay and contributing about a third of the nitrogen that goes into the Bay and causes algae blooms and dead zones. And there's also a video on the Chesapeake Bay Program, "Bay 101: Air Pollutions," I'd like to recommend as well.
All right. And any comment, David Hawkins?
Well, yes. I mean, this is the point that these sources of air pollution are concentrated, especially along the Ohio River Valley. But once they go up the stack — and these tall stacks were built in the 1960s in order to evade pollution control. But the effect of that is that they push these pollutants out for hundreds of miles, and then they fall over the landscape. And then the watershed takes those pollutants and washes them into critical water bodies like the Chesapeake Bay.
So we have a huge problem here where we are taking coal out of mines in the Midwest and even in western United States, putting into power plants, sending it up the smokestacks, and then it drifts down and causes these multiple problems both to health and to the environment and to important fisheries in the Chesapeake Bay. All of these things can be fixed by a very simple common sense policy, which is to put affordable, modern pollution controls on the coal plants that continue to operate.
All right. And to you, Dina, do you think the EPA is going to respond to the governors' petitions before the Supreme Court settles its case?
I don't think it's likely. I think that they're going to wait to see what the legal determination is here before they act on that petition. They will evaluate it, take it seriously — it is from the Ozone Transport Group, Northeastern states, Democratic states — but it's going to be a while for this legal process to shake out.
All right. And that'll be it. We'll be watching both cases in the Supreme Court and the U.S. District Court being argued today. Dina Cappiello of the Associated Press, William Yeatman of the Center for Energy Environment at the Competitive Enterprise Institute, David Hawkins of the Natural Resources Defense Council, thank you all so much.
Thank you, Diane.