While Sen. Barbara Boxer charges that new Bush administration air pollution regulations present "the most drastic clean-air rollback in more than 25 years," American Enterprise Institute fellow Steve Hayward is working out the details for a $1,000 bet that the air will be cleaner in America 10 years from now -- under the new regulations.
Hayward harks back to the enactment of the original Clean Air Act in 1970. In order to win passage of that bill, supporters had to agree to exempt existing coal-fired power plants and other industrial facilities. New plants and equipment would be subject to the act's regulations. Old plants would be exempt.
As John Walke of the Natural Resources Defense Council noted, at the time "people didn't imagine that (decades-old coal-fired plants) would last 20 or 30 years more." But that's exactly what happened, thanks to the law of unintended consequences. The act, after all, had created a disincentive for utilities and manufacturers to retool.
Industries then got creative in how they defined "routine maintenance, repair and replacement." Some companies were so creative that the Clinton administration -- and now the Bush administration -- prosecuted them.
Other companies sat on their hands and complained that they would buy technologies that would allow them to cut down their pollution if the U.S. Environmental Protection Agency's regulations weren't so prohibitive.
This month, the EPA addressed those concerns. It issued final regulations allowing some manufacturers to upgrade their equipment with less administrative hassle. It also issued proposed -- read: not final, even if many critics speak as if they are -- regulations to facilitate coal-fired utilities.
To the Bushies, it's a no-brainer. President Clinton, in their minds, was happy to stick with counterproductive regulations, as long as they made him look as if he cared about the environment. By introducing reforms, Bush shows his mettle as a man willing to look bad to do good.
EPA spokesman Joe Marytak calls it "efficiency by eliminating perverse regulatory barriers."
Think-tanker Hayward noted that because of the disincentives for broad retooling, enviros have had to fight for changes by challenging so-called maintenance in the courts. "I'm sure a lot of these companies are playing games," Hayward said, but he added that the lawsuits are a slow way to fight smog -- and it only works if the government wins. The new regs, he said, offer "real emissions reduction soon; the environmentalists promise bigger reductions later -- maybe."
The NRDC's Walke has a number of beefs with what the EPA did. First, while the EPA says it will prosecute companies already charged with abusing the maintenance loophole, the new regs will make those same abuses legal. Of course, that's the EPA's intent.
What's more, Walke doesn't see the need for the change. If there weren't any improvements in air quality, he could see the need for "a better approach." But that's not the scenario, and still the EPA has "created exemptions that are so vast that a facility operator would have to be quite foolish" not to take full advantage of it.
Walke believes that America's air will get worse because of these changes, especially if utilities win a pass.
There's an easy way for the Bushies to win this argument -- but it's not a route the EPA has taken, and that is cause for pause.
EPA Administrator Christie Whitman could introduce a set of benchmarks that outlines the pollution reductions she expects from the new efficiencies. If industry fails to meet those benchmarks and if pollution increases due to changes that were supposed to result in cleaner air, the new regs will go up in smoke. If industry meets those benchmarks (as I suspect it will), Whitman gets to gloat.
President Bush also should acknowledge that one reason Washington is so skeptical of his environmental bona fides is his failure to advance modest but sustained increases in automobile fuel-efficiency standards. It's in America's national security interests to reduce foreign oil consumption -- which makes his failure to act, well, just plain wrong.