Oregon Sen. Ron Wyden (D) has earned a reputation as one of the Senate's top bipartisan dealmakers for his work on issues ranging from health care to tax policy, and this summer he cast himself in that role again when he rolled out two bills to limit U.S. EPA environmental regulation.
But while Wyden says his bills to delay and limit Clean Air Act regulations of air toxics from industrial boilers and to exempt timber roads from the most stringent Clean Water Act permitting requirements are part of a larger effort to forge compromise among stakeholder groups, perplexed environmentalists in Oregon and Washington, D.C., say they were written without their input and apparently at the behest of the timber industry, a major power in the state.
Wyden considers himself a pragmatist, saying last week in an interview on Oregon Public Broadcasting that what he admired most about the late Oregon governor and senator Mark Hatfield (R), who died earlier this month at age 89, was his ability to work with a cross section of his colleagues to move policy.
"He was about independence, he was about bipartisanship, and he sure wouldn't have had any patience for the kind of food fight that is going on back there now," Wyden said.
In today's Congress, the senator said, lawmakers are too often bound by party orthodoxy and unable to make the compromises required to legislate.
"In a sense, their hands are almost tied when they come to Congress," he said, adding that he refuses to sign pledges specifying what kinds of policy he will or will not support.
Wyden said he takes the same approach when it comes to environmental issues.
His stances could take on even greater significance in the near future. With Senate Energy and Natural Resources Chairman Jeff Bingaman (D-N.M.), a well-established consensus-builder, set to retire at the end of this Congress, Wyden is poised to become the top-ranking Democrat on the panel -- and its chairman if the Democrats retain the majority after the 2012 elections.
"I'm pretty predictable," the 62-year-old lawmaker said. "What I've tried to do on natural resources is I try to lower the decibel level and get all sides together. I am very interested in finding a way to bring together the stakeholders to do a better job."
Allies surprised and disappointed
But environmentalists in his own state and in D.C. say that while he has been a champion in the past -- he got a 94 percent score from the League of Conservation Voters in the last Congress -- Wyden has not reached out to them in recent months as he prepared legislation to tweak landmark environmental laws.
Greens were surprised when the senator introduced a bill (S. 1392) last month with Sens. Susan Collins (R-Maine) and Mary Landrieu (D-La.) that would delay implementation of EPA rules for mercury and other hazardous pollutants from boilers and incinerators for three years.
Wyden's office notes that the senator has been very public about his concerns about the so-called boiler MACT rule, which was finalized in February but whose implementation was delayed indefinitely to allow for another round of comments.
Jennifer Hoelzer, a spokeswoman for Wyden, points to letters to EPA Administrator Lisa Jackson signed by the senator as far back as last year, questioning the assumptions EPA made in calculating the likely cost of the rule to manufacturers and to the biomass industry in particular.
"Anyone actively engaged on the issue knew that Senator Wyden was working on it," Hoelzer said.
But Stephanie Maddin of the environmental law group Earthjustice, which represented environmental groups in their successful bid to have a laxer Bush administration boiler rule thrown out in federal appeals court, said that though Wyden had expressed concern about the rule in meetings with environmentalists, he had not told them he planned to try to amend the law.
"They'd always assured us that they felt the best way to get their concerns addressed was to continue to work directly with the agency," she said.
Wyden and environmentalists give two very different accounts of what his bill would do.
In the Oregon Public Broadcasting interview, Wyden said his bill would simply give EPA the 15 extra months it has asked the courts for to reconsider its rule. When his interviewer pointed out that it would also provide manufacturers with an additional three years to comply with the rule, Wyden said the longer phase-in time is necessary because manufacturers across the United States will all be updating their boilers at once to comply with the new restrictions.
While the bill provides for this additional time, it does not create a deadline for EPA action, said James Pew, an attorney with Earthjustice.
Pew said this would open the door for additional delays and the possibility that EPA may opt not to introduce a new boiler MACT rule at all, especially if next year's presidential election ushers in a new Republican administration.
"The government has avoided putting these protections in place for a long, long time, and what the Wyden bill would do would be to make that permanent," he said.
The Collins-Wyden bill would also specify that certain materials burned in industrial boilers are to be listed as "nonhazardous secondary materials" if they are burned in a way that produces energy.
These materials, which are effectively classified as fuel rather than waste for the purposes of regulation, include certain petroleum and chemical products and residues, plastics, tires and other substances that clean air advocates say could harm public health if they are burned. The list also includes biomass and other materials related to the timber industry, including turpentine.
The list is borrowed from the EPA boiler MACT regulation itself, and Hoelzer said her boss fought to include it in the Senate bill to provide transparency about which substances may be burnt in boilers and incinerators.
"Senator Wyden insisted on the creation of a list so that there would be complete public disclosure of what can be burned in a boiler and what can be burned in an incinerator, but Senator Wyden is not responsible for what is on that list," she said.
She noted that a House version of the bill does not include the list.
But Pew said that by specifying in law that plastics, tires and other products must be classified as nonhazardous secondary materials and not solid waste, Collins-Wyden would restrict the scope of future EPA regulations and prevent environmental groups from challenging that portion of the EPA boiler MACT rule in court.
"We've challenged EPA's definition, and we don't do that unless we think we can succeed in court," he said. "But there's nothing you can do about a law."
Hoelzer said that the list could still be amended. "I guess one could say that Senator Wyden's insistence on public disclosure is working, as there is already a debate over what should or should not be on the list," she said.
She added that facilities that burn fuels from the list would still be regulated under a section of the Clean Air Act that lays out air quality restrictions for larger "major source" and smaller "area source" emitters. But Pew said other provisions in the Collins-Wyden bill would effectively restrict those regulations to major sources, creating a perverse incentive for companies to burn hazardous materials at their smallest plants.
Mary Peveto, co-founder of Neighbors for Clean Air, a grass-roots air quality group in northwest Portland, said Wyden's bill could effectively allow tire retailers to incinerate used tires as a service to their customers.
"That's sort of a far-fetched example, but unfortunately the law would kind of allow that reality to happen," she said.
Peveto said it would also reduce disclosure requirements for emitters, even if they are operating in population centers.
"As an urban advocate where you're trying to figure out more information about what's going on, this really moves us in the wrong direction," she said.
Peveto said Wyden's support for such a bill came as a surprise to the local environmental community.
"There doesn't seem to be any logical or concerted effort to bring people together on it," she said. "I am puzzled, because I think that he has been an excellent advocate for us. He has been really strong on these issues."
While air quality advocates fumed over the boiler MACT bill, land and water conservationists were equally baffled by Wyden's co-sponsorship of a bill (S. 1369) introduced last month by Sen. Mike Crapo (R-Idaho) that would reinforce a long-standing EPA policy exempting timber roads from the most stringent Clean Water Act permitting requirements.
Unlike other industrial sectors, some timber operations have traditionally not been subject to "point source" waste discharge regulations, but a 9th U.S. Circuit Court of Appeals decision last year threw out that policy.
Wyden said on the Senate floor that the Northwest Environmental Defense Center and other plaintiffs in the NEDC v. Brown case had meant well in pushing for greater protections for water quality, but "their litigation tries to impose an outcome on my region without ever attempting to address the concerns and needs of the hundreds of thousands of people in my state who earn their living as responsible stewards of private forest land."
Hoezler said the bill was needed to prevent a preposterous overregulation of logging roads.
"If the court's decision is allowed to stand, every source of runoff on forest roads will require an industrial stormwater runoff permit," she said.
In his public broadcasting interview and elsewhere, Wyden said his bill was intended to be the first step toward a compromise between environmental and timber interests.
"All this legislation does is that it keeps in place a set of policies we've had for 35 years, so that I can do what I've been able to do on one issue after another, and that is to bring together all sides -- environmental folks, scientists, industry people -- and come up with solutions," he said in the interview.
But here again Oregon environmentalists said Wyden and his staff did not seek their input before he and his colleagues introduced the legislation.
"It was a real surprise to see him involved in legislation to overturn a very important court ruling to protect clean water and fish here in Oregon," said Ivan Maluski, conservation director for the Oregon chapter of the Sierra Club.
Maluski said he had attended meetings with Wyden staff where the lawsuit and its implications for timber road permitting were discussed, "but we didn't get an advanced warning that a bill was about to be introduced," he said.
Mark Riskedahl, executive director of the Northwest Environmental Defense Center, said the environmental community felt "blindsided" by Wyden's involvement in the bill, which he said had little chance of bringing the timber industry to the negotiating table in any case.
"The timber industry won't talk to us either, so we've been trying to do outreach to them to say, 'Hey, let's figure out a path forward,'" he said. "Unfortunately, they seem to feel overly emboldened by the introduction of this legislation and are unwilling to discuss a compromise that would address their concerns and still protect water quality. They wanted a special exemption, and this bill gives them that."
Wyden did meet with the timber industry to discuss the bill. His longtime former chief of staff Josh Kardon, who departed the senator's office in January 2010, was one of the chief lobbyists on the bill on behalf of the National Alliance of Forest Owners -- a fact that has raised the hackles of environmentalists.
Wyden said in the OPB interview that he did not meet with Kardon individually about the bill but that his former aide was one of 30 or more timber industry representatives who had lobbied him on it.
The timber industry hopes that the bill will be the end of the discussion on permitting changes, not the beginning. Dan Whiting, a spokesman for NAFO, said he did not anticipate that his group would negotiate to change the silviculture permitting rules if the Senate bill became law.
"We're supporting the regulations that EPA promulgated years ago and still supports," Whiting said.
Wyden has said he expects the bill to preserve Oregon jobs at a time of high unemployment in rural parts of the state, where timber is an important industry. But Maluski said Wyden was wrong to underestimate the economic value of the state's environment, which helps attract companies that want to offer their employees a good quality of life.
"The economy in many ways is really built around the quality of life that you do have here," he said. "The clean rivers, the access to wilderness and open spaces, the clean air and clean water. The diverse recreational activities; those are frankly huge economic drivers."
Politics on the home front
After winning a closely fought special election in 1996, Wyden has won re-election easily three times. He is not up for a fourth full term until 2016, but Maluski said his recent environmental track record has not endeared him to the state's environmental activists.
"There's widespread disappointment in the senator's positions on these issues, and that does not help," Maluski said. "His office is having to do damage control with a segment of Oregon he has traditionally been aligned with in many ways, and that costs political capital."
But Hoelzer said that the green community's frustration with her boss was evidence that he is more interested in crafting policy than in his own popularity.
"The senator doesn't lurch in one direction or another simply to please one group or another, and he won't this time, either," she said. "Anyone who has followed the senator over the years knows that he is unwaveringly independent. In Oregon, that generally means that at any given time, one or both sides of these issues isn't happy with him. This time it is our friends in the conservation community."
Rep. Peter DeFazio (D-Ore.), who represents a western Oregon district that combines the liberal bastion of Eugene with more conservative towns and timber communities, said that part of Wyden's challenge is that he represents a very diverse state where it is very difficult to please everybody all of the time.
"We have people who love to stake out the extremes and just fight as opposed to work in resolution," DeFazio said. "I have at times been called a 'timber beast' by environmentalists throwing sawdust on me, and I've been called an 'environmental radical' when I go to the southern part of my district. So I wouldn't find it anything new that Senator Wyden has gotten in some trouble for probably proposing something pragmatic."
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