Smoke and Mirrors
The subversion of the EPA
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EPA's court follies sow doubt, delay
This year, the federal appeals court threw out the mercury and CAIR rules.
The mercury case, New Jersey v. EPA, was decided in February.
The court took particular offense at the way the EPA had implemented the new rule. Bush's EPA had simply revamped a Clinton-era finding that mercury from coal-fired power plants should be regulated facility by facility.
As the court put it, one day the EPA found it "appropriate and necessary" - the legal standard - to regulate mercury this way. The next day, it did not.
"This explanation deploys the logic of the Queen of Hearts," the court wrote, referring to the character whose signature phrase is "Off with their head!"
EPA has appealed the mercury decision to the U.S. Supreme Court, which means the matter won't be resolved until at least early next year.
Everybody loses
The CAIR case on power plants, North Carolina v. EPA, was decided in July.
The ruling surprised many, and upset nearly everyone - from environmentalists to power companies - because it sent the EPA back to the drawing board on its most significant air pollution program.
"It left a huge regulatory hole," said Eric Svenson, vice president of PSEG, New Jersey's largest electric utility.
Environmentalists, Duke Energy and the State of North Carolina had only challenged certain portions of CAIR. Few had expected the court to find so many faults that it would throw out the whole rule.
The 60-page ruling was complex, but the bottom line was that the court voided the EPA's most ambitious air-pollution program in eight years. The court stated six reasons for killing CAIR, including that the EPA used a flawed method to create the market-based system.
"No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule," the court said.
The court seemed particularly upset about the market-based approach that allowed power companies to distribute pollution unevenly from state to state.
"CAIR may be one of the few examples where the Bush administration tried to do the right thing, but for the wrong reasons," said Eric Schaeffer, a former senior EPA enforcement official who is now executive director of the Environmental Integrity Project.
"The Bush administration's fascination with emissions trading may have blinded it to what the law actually required."
The three-judge appeals panel - the conservatives David Sentelle and Janice Rogers Brown and "Humpty Dumpty" opinion author Judith Rogers - expressed exasperation with the EPA's legal reasoning.
After years of vacating rule after rule as illogically and illegally conceived, the judges began to openly question the EPA's true intentions.
In a sarcastic footnote, the judges noted the similarities between the emission cap levels in the CAIR administrative rule and the "Clear Skies" legislation Bush failed to move through Congress.
