NY, CT, MA Attorney General's letter on NSR

December 18, 2001

By mail and fax (202-456-6212)

Vice President Dick Cheney
Eisenhower Executive Office Building
Washington, DC 20501

Dear Vice President Cheney:

We are writing to express our deep concern with the secret process by which the Administration is formulating its proposed changes to the Clean Air Act New Source Review (NSR) program. According to published reports, this process, in which the affected states and the public are not involved but the utilities are, appears likely to reduce significantly the health and environmental protections that Americans are currently afforded by statute.

New York, Connecticut and Massachusetts are hard hit by the devastating impacts of air pollution. Skyrocketing asthma rates, respiratory disease, acid rain and urban smog are all important issues that are at stake in this important NSR review process.

The Clean Air Act since the 1970s has required power plants to install modern air pollution controls when they are modified or upgraded. Congress crafted this program as a compromise between the economic considerations and the health and environmental needs of Americans. It was a sound decision. A recent report of the Department of Energy found that the NSR enforcement effort, especially if broadened to address all coal-fired plants, would decrease nitrogen oxides (NOx ) and sulfur dioxide (SO2) emissions by 60 to 80 percent with little to no impact on consumer electricity prices.

In May, the President ordered a 90-day review of the NSR program, as well as a review of the ongoing NSR enforcement cases, as a part of the "National Energy Policy." The 90-day review has yet to be completed and the Department of Justice has not finalized its conclusions about the enforcement cases. As a result, none of the potential settlements of these cases has been concluded.

To the credit of the Environmental Protection Agency, it held four public hearings in July seeking public comment on the NSR program. The overwhelming sentiment from those hearings was that the NSR provisions of the Clean Air Act needed to be strengthened, not weakened. Yet, once the hearings were done, it appears that the process then went back behind closed doors. EPA, the agency originally designated to do the analysis of the NSR program, has apparently been eclipsed by the Department of Energy. Yet DOE does not have the same statutory responsibility to protect public health and the environment. Moreover, in apparent disregard of the findings in its own report, DOE is seeking to weaken the protections of the NSR program.

Moreover, we also have been locked out of this process, despite our role as state attorneys general actively involved in NSR enforcement. Although we testified at the Boston public hearing and have been partners with the federal government in some of these cases, we have not been afforded the same level of information that the lobbyists for the utility companies apparently have received. Several recent published reports indicate that various utility lobbyists have been briefed on the proposed changes to the NSR program.

We find it very troubling that companies that have been sued by state and federal governments for violating the NSR program, and that have a financial interest in the debate, are provided opportunities for input while state attorneys general are not. Certainly, any such meetings or briefings must be a part of the public record.

Respect for the law and assurance of public integrity require that any possible changes to the NSR program, especially those that weaken protection of public health from harmful power plant pollution, undergo the process of notice and comment rulemaking and not be drafted in secrecy. Similarly, the Administration should not try to undercut the laws that protect the public through the issuance of guidance documents that have not undergone public scrutiny.

Most important, the Administration should resist industry’s efforts to weaken the NSR program through additional exemptions or retroactive assessments of prior activity measures that would make actual enforcement unduly burdensome to those charged with protecting public health and the environment.

Thank you for your attention to this matter.

Sincerely,