AIR POLLUTION:

Clean Air Act debates show how much politics have changed

When the Clean Air Act Amendments of 1990 passed, lawmakers were more concerned about smog and acid rain than greenhouse gas emissions. The acidic droplets were even damaging the stone on Washington, D.C.'s monuments, including the U.S. Capitol itself.

As a result, Congress acted with near unanimity. When a final bill came for a vote, 89 senators supported it. In the House, the vote was 401-25. It was the first major rewrite of the nation's air laws since the 1970s.

The debate and votes surrounding the amendments, which gave the federal government more authority to control air pollution, are a stark contrast to the ongoing sharp divisions over dealing with global warming.

Current Senate Minority Leader Mitch McConnell (R-Ky.), one of the strongest opponents of using the Clean Air Act to control greenhouse gas emissions, voted for the amendments in 1990 even though they were predicted to hurt at least some of the state's coal mining industry.

At the time, McConnell, according to the Lexington Herald-Leader, said that "the bill was dramatically improved from the time it emerged from the Environment Committee to final passage. I had to choose between cleaner air and the status quo. I chose cleaner air."

McConnell spokesman Mike Brumas said the 1990 legislation, signed into law by Republican President George H.W. Bush, didn't include carbon emissions rules, thus making it a different argument compared with today.

The sulfur content of coal in different geographic locations had a lot to do with how different lawmakers voted. Western Kentucky coal stood to lose from the tighter restrictions, while eastern Kentucky coal, which is lower in sulfur, stood to gain.

In West Virginia, three out of four House members, including current Rep. Nick Rahall (D), voted "yes" for the conference bill. In a recent interview, Rahall recalled that the amendments "were something we could live with in southern West Virginia, with our top-grade, clean-burning coal that in those days met all environmental specifications."

But then-Rep. Alan Mollohan (D) voted "no," as did the state's two Democratic senators, Jay Rockefeller and Robert Byrd.

Byrd was adamant that the legislation ought to include a measure to help affected miners. Bush strongly opposed it on the grounds that it cost too much, and threatened to veto any final compromise with the language included.

Illinois Sens. Alan Dixon and Paul Simon, both Democrats, also voted against the legislation. Their state has higher-sulfur coal, and mining there saw a downturn after 1990.

A 2002 paper by economists John Hoag and J. David Reed, published in the Journal of Regional Analysis and Policy, argued that the 1990 law didn't have any impact on Kentucky's coal fields.

Still, the conventional wisdom holds that it did affect some coal basins. And, more recently, air pollution control innovation has increased the fortunes of Illinois basin coal.

Coal boosters now see U.S. EPA's efforts to use the Clean Air Act to limit greenhouse gases as having a detrimental effect on coal power production in general. But it isn't likely that McConnell's vote for the amendments two dozen years ago will affect his tough re-election campaign against Kentucky Secretary of State Alison Lundergan Grimes (D).

"I'm not worried about 1990. I'm worried about 2014," said Bill Bissett, president of the Kentucky Coal Association. "That is my concern, and that is what the 2014 election is all about."

In other words, coal boosters like Bissett are hoping that the upcoming elections elevate politicians who will wrestle climate policy out of EPA's hands.

Long road

But despite the current gridlock, some sort of consensus on greenhouse gas emissions may emerge after the next election, or other elections down the road. It's what happened in 1990.

People who followed the legislative battle that led to the Clean Air Act amendments say it wasn't the product of a "Kumbaya" moment when divergent interests suddenly realized they agreed on everything.

It is true, they say, that a fairly broad set of players were seeking a new law to govern acid rain and smog from vehicle emissions -- issues that George H.W. Bush had sometimes highlighted on the campaign trail. But the amendments still followed years of sparring by lawmakers from regions with dramatically different economic interests and finally emerged only after months of maneuvering by key players.

The amendments, which environmentalists view as a landmark achievement, followed many attempts by the Reagan administration and its congressional allies -- including Rep. John Dingell (D-Mich.), who was House Energy and Commerce chairman at the time -- to limit Clean Air Act authorities to combat vehicle tailpipe emissions, which were enacted in 1970 and 1977.

Meanwhile, Rep. Henry Waxman (D-Calif.), who headed an Energy and Commerce subcommittee, authored numerous bills in the 1980s aimed at combating the emerging problem of acid rain from power plant sulfur emissions and reducing toxic air pollution. Efforts to revise the law in either direction failed.

"Throughout the 1980s, thousands of hours were spent developing, debating and blocking legislative proposals; hundreds of witnesses testified at hearings; and millions of dollars were spent on lobbying by interest groups," Waxman remembered in a 1991 article for Lewis & Clark College's law review.

But by early in the George H.W. Bush administration, things had begun to shift. Bush had pledged to be "the environmental president," highlighting the need to address acid rain in campaign speeches on the shore of Lake Erie in 1988 and during the New Hampshire primary. The Granite State was affected by emissions from power plants to its west.

Bush put together a team with strong environmental credentials, tapping World Wildlife Fund President Bill Reilly to head EPA and cap-and-trade advocate C. Boyden Gray to be White House counsel.

The winds were changing on Capitol Hill, too. Then-Rep. Norman Lent (R-N.Y.), a moderate from a state affected by acid rain, replaced then-Rep. Ed Madigan (R-Ill.) as the top Republican on Energy and Commerce. Madigan joined with many of his home state colleagues in opposing the creation of new acid rain provisions, which they believed would penalize their state's coal industry.

House and Senate leadership began to push for a bill to take on acid rain and toxics and to head off Clean Air Act deadlines that were about to plunge large segments of the country into nonattainment for smog -- a status that would affect those regions' ability to get permits and highway funding.

Unlikely partnerships

But while there was momentum for a bill, there was not agreement about what legislation should look like.

Bush and his advisers favored a cap-and-trade model for acid rain, which was blessed by environmentalists and congressional Democrats. But the administration parted ways with Waxman in the House and then-Senate Majority Leader George Mitchell (D-Maine) and other senators by calling for a toxics program they said would create "loopholes" for industry, and for smog legislation that would have been less stringent than existing law.

Dealmaking ensued that saw some very unlikely partnerships form. On the Senate side, Mitchell went into a room with Senate Republicans and White House staff and emerged with an agreement to shepherd a version of the bill through the Senate that combined the strong acid rain provisions sought by the White House with less-stringent toxics and smog standards. He agreed to oppose Democratic efforts to beef up those sections of the bill.

Mitchell, an ardent environmentalist, voted against offerings by then-Sens. John Kerry (D-Mass.) and Tim Wirth (D-Colo.). Sens. Jesse Helms (R-N.C.) and Orrin Hatch (R-Utah) voted for Wirth's amendment on motor vehicle emissions in an effort to scuttle the bill.

But Dan Weiss, who lobbied on the amendments for the Sierra Club, said Bush and his advisers had erred in binding Mitchell only through the Senate vote. They had assumed that Dingell's powerful position in the House would ensure that the House bill would have less-stringent industrial smog controls language than the legislation the Senate had produced.

But Dingell, who realized that legislation of some kind was inevitable, had reached an agreement with Waxman. After more than a decade of what Weiss called the "the civil war between Democrats over stricter pollution limits for cars," the two senior lawmakers agreed to work together through the conference committee to defend the House version of the bill.

Because the Bush administration agreement with Mitchell only lasted through Senate passage, Weiss said, this gave the Senate's Democratic conferees the freedom to accept the stronger House provisions on enforcement of smog controls during negotiations without getting the White House sign-off.

"The short-term agreement the Bush administration made with the Senate champions was a big miscalculation," said Weiss, who is now a senior fellow at the liberal Center for American Progress.

Phil Barnett, who has worked for Waxman for decades and now serves as the Energy and Commerce Committee ranking member's staff director, said the conflicts that arose during the 1990 amendments all had to do with regional interests.

"The challenge was constructing something that would clean the air but also win support across the regions, and that was a solvable problem," he said.

Like Dingell, Republicans on the committee were also concerned about issues that affected their constituents, which led then-Rep. Jerry Lewis (R) to work with fellow Californian Waxman on language to beef up vehicle emissions standards. Then-Rep. Sherrod Boehlert (R-N.Y.), meanwhile, pushed on acid rain.

The last holdouts were not lawmakers but industry, Barnett said.

"The oil companies said doing the reformulated gasoline would drive them out of business; the chemical companies said the ozone depletion rules were going to cause widespread havoc and shut down hospitals and office buildings," he recalled. In the end, he added, Dingell's agreement to work with Waxman finally helped industry see the writing on the wall.

Twenty years later, when Barnett's boss tried to advance carbon dioxide cap-and-trade legislation with then-Rep. Ed Markey (D-Mass.), many industry interests backed the bill. And Democrats again negotiated for home-state industries -- with then-Rep. Rick Boucher (D-Va.) securing free allowances and technology funding for the coal industry, while Rep. Gene Green (D-Texas) won concessions for the refining sector.

Barnett attributes carbon cap and trade's defeat to Republicans' prioritizing politics over home-state industries. But he says that by blocking any and all climate legislation, today's Republican leaders may be running the risk that eventual legislation will do less to protect coal and other industries.

At a recent hearing, Waxman made the same point.

"In fact, I am confident that the coal industry and Republican members from coal states will soon regret the day that they opposed the Waxman-Markey climate bill and the $60 billion we proposed to invest in carbon capture and sequestration," Waxman said.

Culture change

Norman Ornstein, a resident scholar at the American Enterprise Institute, said the culture of Congress has changed since the Clean Air Act amendments were passed, in ways that would make such sweeping legislation all but impossible to pass now.

In the 1990s, lawmakers were expected to deliver for their constituents, not just maintain ideological purity, said Ornstein, who has written extensively about congressional gridlock.

"You just don't have the same incentives for people anymore," he said. "Back then, you had lots of people who wanted to legislate, or at least wanted to get something done. Now you have a whole lot of people who don't want to legislate and don't want to get something done."

Environmental issues, in particular, have become "radioactive" for Republicans since then, he said, with GOP lawmakers shunning them for fear of inviting a well-funded primary challenge.

"I think it was more of a dealmaking culture in those days," said Joe Kruger, director of energy and the environment at the Bipartisan Policy Center. Even members from high-sulfur coal states who largely opposed the Clean Air bills managed to win concessions for their home-state industry, he said, securing a provision in the acid rain trading program that granted additional free allowances for plants that invested in scrubbers in order to use their product.

Negotiations on climate have not succeeded in part because of the nature of the issue, Kruger said.

"I think climate change has always been harder for people to wrap their minds around, because it has longer-term effects, it's a global issue," he said. Environmental legislation has succeeded at mitigating the more visible risks to air and water quality, so the need to control carbon emissions seems less immediate.

And while industry had some incentive to come to the table in 1990 to secure wanted changes to Clean Air Act rules that were already beginning to phase in, they may not have the same reason to come back to the table now. The prevailing wisdom is that if Congress reopens the Clean Air Act, it will mean tougher regulation, Kruger said.

"There's little trust in the system," he said. "Industry is afraid that if it gets opened up, it's not clear where it would end up.

Former Rep. Phil Sharp (D-Ind.), who was in Congress at the time of the amendments, said the law was good for fossil fuels-heavy states like his own.

"There were trade-offs," he said. "And a lot of people think it was just a piling on of environmental regulations. That's just not true. And generally, it did tighten things up, but it extended deadlines."

Sharp, who is now president of Resources for the Future, said that kind of give-and-take will always have to be part of efforts to revise the Clean Air Act. Efforts that lack deep bipartisan support, he said, will fail.

"My speculation is for the next couple of years, neither approach -- those who want to glob on a whole bunch of new regulations through legislation, nor those who want to repeal existing rules or roll back authority -- are going to be successful," he said. "Inaction is always a preferred position in our system."

But he predicted that Republicans would eventually come up with their own approach to climate mitigation, and at that point, legislation might again be possible.

Paul Bledsoe, senior fellow on energy at the German Marshall Fund, who has worked on Capitol Hill, said the GOP's rejection of climate change policy is part of its contempt for government.

"I think this notion that government is the problem is making it impossible to effectively legislate," he said.

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