Clean Air:

Rep. Tom Allen discusses Democratic strategy on mercury, coal and 'Clear Skies'

What strategy are Democrats planning to thwart U.S. EPA's mercury rule? How much of the mercury problem is international, and what can be done about it? Is "Clear Skies" dead? Rep. Tom Allen (D-Maine) joins OnPoint to talk about these issues, the Democrats' environmental strategies, coal, MTBE and more.

Transcript

Darren Samuelsohn: Hello and welcome to OnPoint. I'm Darren Samuelsohn. Joining us today in the E&ETV studios in Washington is Congressman Tom Allen, a Democrat from southern Maine. Congressman Allen thanks for being with us.

Tom Allen: Glad to be with you Darren.

Darren Samuelsohn: I'm hearing that you're going to be bringing up the mercury issue on the House floor here as the EPA spending bill comes up. In what context are you thinking about doing it? Are you going to actually try and stop EPA's rule from going forward or are we pass that at this point?

Tom Allen: Well, we haven't quite decided. We just know we're going to do something on mercury, something to try to encourage the EPA to clean up its rule, if I can use that. I really think that rule is a disaster both in the way in which it was developed, but also in terms of what it does. It's a real mistake. If we left the Clean Air Act alone, if we simply treated mercury as the toxic that it is then there's a way to regulate mercury according to the maximum achievable control technology. The administration doesn't want to do that. I think it's a real mistake.

Darren Samuelsohn: Not decided yet on a specific amendment approach, but I've heard there's a couple of options. I mean one you could try and stop funding for EPA's implementation of the rule, I guess is one way that people in the past --

Tom Allen: That's right, that's right. We are considering several different options, but we'll have to see.

Darren Samuelsohn: OK. I mean I guess in terms of like your prospects for actually making this happen, EPA tried in 2001 to slow down the review of the arsenic standard for drinking water and Congress was able to actually stop that rule through the House and the Senate appropriations process. Do you have any sense, I mean, can you keep all Democrats together on something like this and you've got some moderate Republicans who have shown some interest in criticizing EPA on this.

Tom Allen: Yes, we do, but mercury is different from arsenic. Arsenic everybody knows is a poison.

Darren Samuelsohn: Yeah.

Tom Allen: Mercury, because it is primarily created by the burning of coal in utility plants, you know you wind up with people from coal areas and people with big utilities in their district who may be concerned about the cost of cleaning it up. We don't believe that the biggest possible issue out there because when we look at what the Southern Co. has done with one of its plants, they're already reducing their mercury by 80 percent in that plant. We think the technology is available in most respects and with a little, with a reasonable regulation we think we will encourage the development of technology and we can clean up 90 percent of the mercury emissions that are out there today.

Darren Samuelsohn: Since EPA finalized the rule in March there hasn't been much from Congress yet in terms of a vote on condemning this rule or supporting this rule. Why do you think that hasn't happened?

Tom Allen: Well the Republicans control the House and the Senate. I mean we can't get a vote in the House certainly. We have no way of having a real vote on something that the Republicans don't want to bring up. If we filed legislation, if we asked for an amendment it still has to go through the Rules Committee and they won't allow it unless of course they think they could win it.

Darren Samuelsohn: You're competing with Congressman Waxman, I guess maybe to being one of the more prolific letter writers in the House in terms of on issues on the environment. You've written a lot to EPA administrators about this.

Tom Allen: Right.

Darren Samuelsohn: What kind of interaction have you gotten from EPA administrators? Have you had a chance to talk to, I guess, formerly Mike Levitt or now Stephen Johnson? Do you get any sense that they're listening to you?

Tom Allen: Well, I haven't talked to Stephen Johnson yet, but basically the forum for doing that is when they appear before the Energy and Commerce Committee on which I sit, I use the occasion, whatever the hearing is --

Darren Samuelsohn: Right.

Tom Allen: I use the occasion to push on mercury issues and of course we, you know, there is staff contact, but you know, they're bound and determined, as far as I can see, to maintain that rule. I believe they're, they just don't want to impose tougher mercury standards, the standards that are required by the Clean Air Act on utilities. The big problem with the law, with the regulation is that it delays action from 2008 to 2018 and then only asked for 50 percent reduction in mercury emissions. So it's just not, it doesn't do what we need to do with respect to that particular pollutant.

Darren Samuelsohn: Let's get down to the legalese I guess for just one second. I don't want to go too far down, but in 1990 Congress passes the Clean Air Act and that's what you're referring to. There's a debate though, I mean EPA has delisted mercury as a toxic pollutant under the Clean Air Act and they give, their explanation being that the Clinton administration, five years ago when they actually did list it as a toxic pollutant, they made a mistake and they weren't looking at all the evidence, the EPA is saying. EPA is saying that now you have to consider that U.S. power plant emissions are not that big of a chunk of the whole world emission pile. You know 5,000 pounds per year, I'm sorry, tons per year and 48 tons of that is from the United States. And they're saying that they can do enough just by regulating nitrogen oxides and sulfur dioxides to capture mercury emissions. So they're saying they can read the Clean Air Act a little bit differently than you.

Tom Allen: But they, but in our view they're not reading the Clean Air Act the way it was written because once something is a hazardous air pollutant it is meant to be regulated under this section of the law which is entitled, significantly, Hazardous Air Pollutants. Mercury was found to be a hazardous air pollutant and the EPA isn't denying that now. They have no new studies. They haven't come up with anything to say mercury really isn't a hazardous air pollutant, they're just saying it's not as big a problem as people, some people think. Well that doesn't cut it with the courts and it doesn't cut it, you can't change the act itself by simply pretending that it really has, somewhere hidden in it, some other policy. It doesn't. Hazardous air pollutants need to be regulated under that section.

Darren Samuelsohn: You think the rule will be overturned? We're getting, the lawsuits are being filed as we're speaking right now by the states and environmental groups.

Tom Allen: Right.

Darren Samuelsohn: Do you think the rule's going to be overturned?

Tom Allen: I think the plaintiffs will have a very, very good case that EPA has misread the act itself and then we'll have a built in delay and probably, that's part of what EPA's calculation is. They're just, you know we'll go through a bunch of, a lot of litigation, delay the implementation of tougher standards and the utilities will catch a break for maybe up to a decade.

Darren Samuelsohn: EPA thinks that they can vigorously defend this rule and that they have the discretion, under Supreme Court precedent, to interpret the Clean Air Act as they see fit though. I mean do you think the EPA has a case to make here?

Tom Allen: They're going to make a case. I mean they're going to make an argument, but I believe the law is very clear because they haven't overturned the science. The science concluded, the studies concluded after years of study, that mercury was a hazardous air pollutant, we know what it's effects are, the neurological effects when it's, you know, when people take it in too heavy doses. And it is, it doesn't matter what China and India are doing because mercury, it's not carbon dioxide. It doesn't affect the planet equally. There are hot spots created around coal burning plants that make the mercury emissions and the mercury in the atmosphere, in the water and in fish more concentrated there than elsewhere. So we need to treat it like a toxic pollutant, and I just think the EPA will make a case they'll say they've got an argument. Lots of legal arguments fail and I think theirs will.

Darren Samuelsohn: Let's stick with EPA's arguments and one of them that they're making is this is the first time that anybody in the world has regulated mercury from power plants. I mean no country has a regulation and EPA is touting that. They're saying the Clinton administration didn't finalize anything and the Clinton administration waited until, I think, 12 days after the Supreme Court ruling in Gore v. Bush, once they realize they weren't going to be coming back for another four years. I mean why, that particular piece I guess of the Bush argument, does that have legs, that Clinton waited too long and didn't do anything?

Tom Allen: I don't see why it would matter to the court. The question for the court, as I see it, is what does the law say? How are hazardous air pollutants to be regulated? Is it true that mercury has been found to be, by the EPA, a hazardous air pollutant? And then their conclusion should follow from that. I just don't see that the rest of it would have much of an impact --

Darren Samuelsohn: OK.

Tom Allen: But then that's up to the court.

Darren Samuelsohn: Another piece that EPA will argue and not necessarily in the courts, but in also the court of public opinion, I mean they're saying that their rule will reduce mercury by 70 percent through a cap-and-trade program over the course of the next 15 years or so, I think 20 years, out to like 2025, 70 percent reduction from today's levels gets you down to 15 tons of mercury from today's 48 tons. I think from the alternative side, I mean the environmental groups and people who think that if you were to completely enact the Clean Air Act it's just down to 5 tons. So we're really only talking about a 10 ton difference. I mean, what's the difference in your eyes of 15 tons versus 5 tons? How much can that really make a difference for public health?

Tom Allen: Well, it will make a difference because, partly because I don't believe the administration's calculations. We think that that 70 percent reduction will not occur in 2018. We think it probably won't occur even in 2025. It may be later than that. So what they're saying is they are coming up with a 70 percent reduction, but it is not at all clear that that number is any good. For one thing they are not modeling the way they should. They should be modeling the proposition on mercury and then modeling what would happen if the were enforced according to its terms today and you had a maximum achievable control technology standard applied to mercury? They don't want to do that and they are refusing to do that second calculation. Frankly, I'm sure because it would show much more substantial reductions in mercury than what they were proposing.

Darren Samuelsohn: You're a cosponsor of the four pollutant bill that was introduced in the House by Congressman Sherwood Boehlert and, I think, Congressman Waxman, that bill was marked up in the Senate, a different version of it, several years ago when Senator Jeffords was in charge. But since then we've really heard nothing about the four pollutant legislative approach and primarily because, you know, Chairman Barton is in charge of the committee. Do you think that the four pollutant, three pollutant debate, I guess it's the Clear Skies debate as well in some respects, is that alive still on Capitol Hill or do you not sense that anybody's really interested in trying to amend the Clean Air Act?

Tom Allen: Well, it depends which part of the building you talk about. It certainly is true that in both, in the majority in my committee and in the House as a whole, there is a hands-off approach when it comes to carbon dioxide. They don't want to deal with climate change despite all the evidence, 25 years of studies talking about how serious the change in climate is in this country and the potential consequences. The House has its head buried in the sand. They don't want to deal with it, but in the Senate, you know John McCain and Joe Lieberman have a bill that deals with carbon dioxide. They proposed, as I read the press, they proposed to bring it up on the floor attached with some encouragement for the nuclear power industry which causes of course a great dilemma for people who struggle with the climate change issue and also the, what do you do with nuclear power when we can't agree on a place to deposit the waste? But certainly the climate change issue could be helped with more nuclear power. On the other hand, nuclear is very expensive than frankly, we are having a little bit of trouble.

Darren Samuelsohn: It gets, it probably gets Senator McCain some votes though from some Republicans that might not look toward his bill otherwise.

Tom Allen: It might, the question is whether it will get enough votes to get his legislation proposed. I believe that we ought at least to start having a registry. We ought to have a law passed which will require polluters to calculate how much carbon dioxide they're putting up into the atmosphere. So we have the basis for national standards and a cap-and-trade program because it is going to come. We are going to have to do this at some point. We need to do it now, but it will happen. I am confident. It's just a long slow process working through the administration of the Congress.

Darren Samuelsohn: If McCain really puts this forward on the Senate floor and makes the concessions on nuclear, I mean it's going to make the environmental groups split. It already has made the environmental groups split. We saw that in an article in The New York Times over the weekend and just in interviews we've been doing with environmental groups there clearly is a division. But it also puts President Bush maybe in an interesting position too because he's been pushing for nuclear, you know, all sorts of incentives. But he's opposed to nuclear, I'm sorry, CO2 caps. I mean do you think that the administration might be open to what's being advanced here?

Tom Allen: Well the administration, I mean both in foreign policy and domestic policy, tends to take a "my way or the highway" approach and so I'm not going to even begin to predict what they might do. My guess is they're so opposed to carbon dioxide, to any kind of cap-and-trade program that they wouldn't go for it. But on the other hand, at some point, we have to pull our heads out of the sand and start treating this issue seriously. And I would, you know, at some point we'll have a president who will take a leadership role in it.

Darren Samuelsohn: Let's see, there's 120 new coal fire power plants proposed across the country right now and primarily that's an issue of natural gas prices being where they are and coal being again looked at as a new resource.

Tom Allen: Right.

Darren Samuelsohn: Or a resource that we can continue to use for hundreds of years I think. A lot of these plants are being proposed and they're having some of the state-of-the-art pollution control technologies, but a lot of them aren't. I think it's only like about 15 of the 120 are these state-of-the-art gasification technologies. Do you think that there should be a mandate though all new coal fire power plants across the country have state-of-the-art pollution controls on them?

Tom Allen: Well, something like that. I certainly agree there is tremendous potential in coal gasification and though I haven't looked at that particular issue I would say that if we're going to move to more coal we want the cleanest coal plants we can possibly get and it seems to me that by and large if it's going to be coal, they should be coal gasification, assuming there's enough, the technology is there. But there's so many other things we could do that we're not doing in the House bill, but like support for renewables, doing appliances --

Darren Samuelsohn: Sure.

Tom Allen: You know we're doing nothing on conservation in the House bill. The Senate is much more promising, but no I agree, coal is going to be part of our energy mix for a long period of time and has to be part of that energy mix. I think, I'm not so sure it's 200 or 250 years, that's what the industry says, but I'm not sure they're assuming an increase in use.

Darren Samuelsohn: OK.

Tom Allen: I think once you assume an increase in use it's less than that.

Darren Samuelsohn: Do you have any sense that the House Republicans, in the Energy and Commerce Committee that you sit on, are interested in marking up the President's Clear Skies bill to try and amend the Clean Air Act?

Tom Allen: Well, we're going to have a hearing on it next week.

Darren Samuelsohn: You think it's --

Tom Allen: I don't know where.

Darren Samuelsohn: It's been postponed twice. I'm kind of tempted not to believe it until I actually see it.

Tom Allen: We're now told it will happen next week. It can obviously get postponed again, but there's really no need any longer to do the President's Clear Skies proposal because all of the positives, everything that could be done has been done by the CAIR rule, by the --

Darren Samuelsohn: Right.

Tom Allen: By the Clean Air Interstate Rule. And what's left are legislative provisions that would really undermine the effectiveness of the Clean Air Act itself and we don't need to do it. I don't know exactly where we'll go with it, but there's been a lot of controversy over the, over Clear Skies from the beginning, because after all it's two oil company executives and their dream bill. At least that's what it feels like.

Darren Samuelsohn: Right. Do you think on the energy bill that it's going to pass into law by President Bush's timetable, I think by the end of August? Have any chance at getting out of markup?

Tom Allen: I really don't know. I mean a lot depends on what the Senate does because the Senate, first of all, has taken, it looks like they're prepared to take fairly aggressive action to encourage the makers of appliances and require the makers of appliances to have much stricter standards on energy use. The House has gone in the opposite direction and really done nothing. The House basically did nothing. They actually took away, the Ways and Means Committee, did not extend that whole slew of renewable credits that are essential for conservation and for renewable sources of energy.

Darren Samuelsohn: And you tried to strip the MTBE liability language out there on the House floor --

Tom Allen: Right.

Darren Samuelsohn: And that lost by just a couple of votes, 218, 214 or something.

Tom Allen: Right, by a relatively narrow margin. That of course is what sunk the bill in the Senate or one of the major factors that sunk the bill in the Senate the last time. There wasn't a single senator from New England who would support the energy conference report in the last Congress, not one.

Darren Samuelsohn: But now, on this particular case, it actually, the New England lawmakers actually kind of helped get your amendment I guess squashed. Like Congressman Bass, wasn't he one of the ones who sort of moved over and --

Tom Allen: He sort of moved over, but we'll see. We'll see what the Senate does. If the Senate insists that there be no MTBE liability waiver provision in the final product, then they're in a tussle with Joe Barton and Tom DeLay and we'll just see where that comes out.

Darren Samuelsohn: OK. Congressman Allen, thank you very much for being here. I hope to see you again. Until next time, I'm Darren Samuelsohn. This has been OnPoint.

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