Bush Stamps on States rights

http://sfgate.com/cgi-bin/article.cg...0/MN140596.DTL New air pollution regulations issued by the Bush administration undermine an important tenet of national environmental laws: the rights of states to adopt stricter controls than the federal government, environmental lawyers and California officials say. This part of the new regulations portends an ominous shift in federal policy that could threaten scores of unique environmental measures adopted by California in areas from air quality to pesticides to drinking water, they say. "This is the first time in history that the federal government has attempted to pre-empt states' rights in the area of environmental law," said Richard Toshiyuki Drury, a lawyer at Communities for a Better Environment, an Oakland advocacy group. "We've never seen anything close to this." Officials of the U.S. Environmental Protection Agency, which has the authority to approve or disapprove the state regulatory programs, deny that the new regulations are an attempt to limit state authority. The new federal regulations determine when oil refineries, power plants and big factories have to install modern pollution controls. The rules issued last week allow companies to expand without installing state-of-the-art pollution control equipment if they keep their emissions below a certain level. "Under the Clean Air Act, there's a lot of flexibility that the states have. We have to respect that," said Matt Haber, EPA senior energy adviser in San Francisco. California's rules are far more restrictive. Since 1976, every refinery, power plant, chemical or other factory that has been built, rebuilt or modernized has had to undergo a state review, which ultimately leads to requirements to retrofit and install modern pollution control equipment. It's the heart of the state's clean air law and applies to thousands of big manufacturing and other plants. Altogether, these plants account for about 45 percent of the state's air pollution, compared to the 55 percent released by cars and other mobile sources, according to the state Air Resources Board. California's program will come under scrutiny to determine if it is in accord with the new federal rules, and state officials are worried. Part of that concern comes from the following language contained in the 600- plus pages of regulations: "For states that choose to adopt all the new . . . provisions, we expect that the (state approval process) will be expeditious. Of course, the review and approval process will be more complicated for states that choose to adopt a program that differs from our base programs." Even though the programs may be different, the EPA's Haber said there is "a very good chance" of California showing its program falls in line with the new federal rules. CALIFORNIA'S BATTLE California officials fear that, in the end, the decision over the state's right to a different, tougher program will be a battle with the Bush administration. "The problem is that the reviews are typically political reviews and not technical reviews. And we usually lose," said Jerry Martin, spokesman for the state Air Resources Board. "California has the tightest motor vehicle standards on Earth, the best toxics program and the nation's only consumer products regulation for air pollutants. A lot of people think (the Bush administration regulations) are an opening gambit in an exercise to dilute California's authority here," Martin said. California already has been battling with the federal government over its effort to use a reformulated gas without MTBE or other gas additives and operate a program requiring a certain percentage of zero-emission vehicles. LAWS AT STAKE Environmental lawyers say the new regulations open the door to restrict states on a host of major environmental laws, including the Clean Air Act, Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act and the Resource Conservation and Recovery Act. At stake in California, environmental groups say, are air-pollution and other major environmental laws that are far more protective than the federal government's: -- Cars, trucks, buses and sport utility vehicles built for sale in California must meet stricter emission standards. And a certain percentage of vehicles sold in the state must have no emissions. -- Gasoline and diesel fuels must be formulated to comply with state specifications. The state wants to tailor cars and fuels to work together to reduce air pollution. -- An anti-toxics law passed by voters in 1986, known as Proposition 65, requires businesses to warn consumers if products contain unsafe levels of chemicals that can cause cancer or birth defects. -- Drinking water standards in the state apply to MTBE, the gasoline additive and suspected carcinogen that has turned up in some drinking water supplies, while the EPA doesn't have a standard. -- Pesticides that win EPA approval still must pass California conditions showing they can be legally sold and applied in this state. The state is the only one that requires a public-comment period before a new pesticide can be registered. -- While federal laws require major manufacturers to estimate releases of pollutants, the state requires real-life inventories of handling and release of the chemicals. FIRMS PLEASED Businesses long frustrated by the state's tougher laws greeted with satisfaction the federal government's flexibility over when they have to buy new pollution controls. Jeff Wilson, spokesman for the Western States Petroleum Association, which represents major oil refiners such as ExxonMobil, BP and Texaco, said his group has run into problems with California's stringent requirements as they relate to routine maintenance. Wilson cited cases where a refiner has brought in high-powered hoses and steam-cleaning equipment to rinse off storage tanks. While the refiners consider the maintenance very routine, it has triggered new reviews -- a costly process for the companies, Wilson said. "We are cautiously optimistic that under this new proposal, that will be revisited," Wilson said. Already, New York, New Jersey, Maryland and the New England states intend to file legal challenges against the regulations on two issues: infringement of states' rights and downwind pollution from more loosely regulated businesses. John Walke, an attorney with the Natural Resources Defense Council, an environmental group, said, "If the Bush administration feels emboldened to gut this central clean air program, one shudders to imagine what other anti- environmental agenda that they will pursue concerning all of our environmental and public health protections."

[Timber Loftis]

Just saw this, and I'm reviewing the article. I will note that I have made arguments before several administrative bodies that their state versions of the CAA were unenforceable because they did not conform to the boundaries and procedures drawn up by the Feds.

In short, in some instances the state is not necessarily able to make "stricter" laws. Admittedly, the common wisdom is that the CAA is the "minimum" and that states can be stricter if they like. But, in some places, this is not the case.

Example: Per ton fees for certain pollutants. The CAA states clearly that the degree to which the state can exceed its prescribed fees under certain CAA sections, if any, shall be based on the consumer price index (i.e. modified for inflation only). I used this to challenge about $400K of fees over an 8-yr period in New YOrk. Interestingly, a firm in Chicago picked up on it and asked to share it with industry leaders.

So, I'll post more after I've had time to review the article.

And it is all due to the dictator G W Bush all the rest of government has nothing at all to do with it.

[Timber Loftis]

Sorry, MagiK, but Regulatory Law comes from agencies - i.e. the EXECUTIVE branch. Everyone at the USEPA is totally answerable to Bush, and he has the thumbs-up/thumbs-down power on everthing there. He says jump, they ask how high and when they can come down.

Without legislature involvement, this is one instance where you can't diffuse the blame (if there is any to be had) from the president. He is as answerable as a corporate CEO when it comes to agency action.

Originally posted by Timber Loftis: Sorry, MagiK, but Regulatory Law comes from agencies - i.e. the EXECUTIVE branch. Everyone at the USEPA is totally answerable to Bush, and he has the thumbs-up/thumbs-down power on everthing there. He says jump, they ask how high and when they can come down. Without legislature involvement, this is one instance where you can't diffuse the blame (if there is any to be had) from the president. He is as answerable as a corporate CEO when it comes to agency action.

Never said he was innocent [img]smile.gif[/img] ....*looks back at post* nope word innocent is not there. However, if these Executive branch descisions are unconstitutional or in some other way counter productive to the national good, the Legislative and Judicial branches may indeed intervene. If they do not, they are expressing their tacit aproval. It is like in the Tony Blair thread. G.W. B. is not working in a vacuum up there.

[Attalus]

LOL, I suspect poor George's days are quite filled up without him going into every regulatory matter. It's funny, Dramnek, that you are all for states' rights in this regard, but if a Democratic administration were to overrule the states, it would be a different matter. I know, I know, apples and oranges, possibly.

[Timber Loftis]

Erm. . .

Well, you are right that if it's contrary to the constitution or the CAA statute, the court may certainly overturn an administrative decision. I'll note that at the legislature would have to re-write the CAA to intervene- a difficult proposition. Either remedy would not likely reach fruition until the end of Bush's 1st term at the earliest.

But, the courts won't intervene. The CAA gives broad mandate to USEPA, and this likely does not go too far. But, you're stepping to the side on the argument and missing the point. USEPA *IS* answerable to Bush, and he put his crony Cristie Whitman in charge of it. So, for all intents and purposes, USEPA decision = Bush decision.

The point is not whether or not it's illegal. The point is who is responsible for limiting what CA can do with its air. And, it is certainly Bush that has final final ultimate say. Again, whether or not it's bad is NOT what I am arguing. I am simply pointing out that in this situation the Bush *Administration* is responsible for the decision to limit the CAA in CA. And, I think their literature on it proves this out, if you check press releases.

You shouldn't play this out too far, MagiK, as you'll find yourself in a dilemma. You see, you support states rights and you support Bush. Here, Bush has limited states rights - possibly legally and with the most angelic of intent, but in the end he has still limited states rights. Nevertheless, your only way "out" in this situation is to challenge the placing of this decision on Bush's shoulders. Well, you've done that and failed: I'm telling you that's not going to work, as Bush is the boss of the EPA. Thus, you find yourself on the horns of a dilemma, where one thing you support does not jive with another. Such is life sometimes.

[Timber Loftis]

Originally posted by Attalus: LOL, I suspect poor George's days are quite filled up without him going into every regulatory matter. It's funny, Dramnek, that you are all for states' rights in this regard, but if a Democratic administration were to overrule the states, it would be a different matter. I know, I know, apples and oranges, possibly.

Well, Attalus, politics makes us all hypocrits. Check out MagiK's efforts to resolve his two competing notions. He's for Bush, but Bush here has clearly done something he has heretofore stated he was against. Life can't all be peaches n' cream.

Point of order yer honor umm can you clairify for me. Are any of the people appointed by any administration classified as anything other than "cronies"? Why the perjorative term, rather than a more neutral title?

Edit: Yep I was and am still for Bush, doesn't mean I have to like every single thing he does....my world isn't that black and white/cut and dried. Much as I would like it to be. GWB is still far preferable and palatable to me than AG.

[ 12-02-2002, 02:14 PM: Message edited by: MagiK ]

[Timber Loftis]

Croni-ism is rampant in politics - no offense was intended by the word. He appointed her, it's that simple.

I'll assume that by your lack of on-point response, you demur.