by REP Policy Director Jim DiPeso published December 28, 2003 in the Billings (MT) Gazette
The Bush administration has been taking it in the chops from federal courts lately on environmental matters.
On Dec. 16, a district court judge threw out a rule allowing continued use of snowmobiles in Yellowstone National Park.
One week later, a panel of the U.S. Court of Appeals in D.C. blocked, at least temporarily, a rule loosening standards for upgrading pollution controls on old coal-fired power plants, refineries and other industrial facilities.
What's going on here? A footnote in U.S. District Judge Emmet Sullivan's Yellowstone decision contains the seeds of an answer. Sullivan found evidence that the environmental impact statement backing up the snowmobile regulation was "completely politically driven and results-oriented."
In other words, politics trumped science and good stewardship. Nothing unusual about that, it happens in any administration. The Bush administration, however, seems to have taken the art of politicizing decision-making to rarefied levels.
Judge Sullivan is nobody's fool. His decision was filled with pointed commentary on the Interior Department's failure to explain its astonishing reversal of an earlier rule to phase out snowmobiles from Yellowstone.
The earlier decision, issued in 2001, was based on clear evidence that snowmobile noise and fumes harm Yellowstone's wildlife and air quality. Despite the evidence, the Interior Department flopped and issued a new regulation two years later that would allow 1,000 snowmobiles a day into America's first national park.
Judge Sullivan pointedly reminded the Interior Department that the law, executive orders and management policies clearly spell out that conservation trumps all other considerations in managing a national park.
Nothing else has a higher priority - not insistent demands to expand motorized recreation to the farthest reaches of America's unsullied wild lands, not the never-ending pressures to commercialize special public places and not political calculations.
It's the same story with a rule, now blocked, that allows "grandfathered" power plants, refineries and other old industrial facilities to slack off on complying with pollution reduction standards that newer facilities must meet. The new rule weakens the Clean Air Act's "New Source Review" requirements for plants that predate the law.
The court order blocking the rule indicated that the 12 state attorneys general who sued the Environmental Protection Agency have a good chance of winning their case. The attorneys general, joined by legal officers for cities such as New York and San Francisco, said the rule amounts to an illegal rewrite of the Clean Air Act, which only Congress can amend.
The rule allows "grandfathered" plants to spend up to 20 percent of equipment value on maintenance without having to bother upgrading pollution controls.
Old plants could be rebuilt from the ground up over a period of time without ever modernizing their pollution controls. Never mind that Congress' intent in adopting New Source Review was that all old plants must, within a reasonable time, meet current pollution reduction standards.
"Grandfathered" power plants, located mainly in the Southeast and Midwest, emit up to 10 times the sulfur dioxide and nitrogen oxides emitted by newer and retrofitted coal-fired power plants. The pollutants form harmful microscopic particles that burrow deeply into lungs, leading to thousands of premature deaths, along with asthma and other respiratory ailments.
The administration's drive to weaken New Source Review dates back to Vice President Cheney's closed-door energy task force meetings, where utility executives and lobbyists bent his sympathetic ear about scaling back New Source Review.
Influence peddlers have been pressing their political agendas onto pliable elected officials since the nation's earliest days. The Founders foresaw that shady tendencies would occasionally get the better of presidents and congressmen. That's why they wrote an independent judiciary into the Constitution, to provide checks and balances that give citizens a fighting chance to hold their elected leaders accountable to the law.
The Yellowstone and Clean Air Act decisions are another reminder that courts remain a useful tool for preventing politicians from breaking the law to suit their shortsighted agendas.
