IN THE NAME of maintaining reliable electricity supplies, business groups are urging Congress to include in end-of-session legislation language that could weaken enforcement of an entire section of the Clean Air Act. The rider is in response to anti-pollution lawsuits the government filed against a group of midwestern and southern utilities earlier this month. The business groups said in letters last week to the Republican and Democratic leadership of both houses that, without the relief the rider would provide, the lawsuits "could have severe implications for [electric] supply reliability in the near future. . . . [U]nits covered by the enforcement action could potentially be shut down."
But environmental groups and federal enforcement officials contend that the real-world risk is in the opposite direction. The rider, they say, would have the effect of shutting down enforcement, in that utilities would be immunized against mounting fines and other penalties for the duration of any lawsuit. The lawsuit would become a kind of safe harbor; enforcement would be stood on its head; and the utilities would lose any incentive to settle. It would be to their advantage to drag the lawsuit out.
This is not the kind of question that ought to be settled by the last-minute insertion of unexamined language in a sprawling appropriations bill as Congress is hastening out of town. The charge against the utilities is serious -- that in order to save money they continued to operate old and dirty power plants in violation of the law. The plants were grandfathered under the Clean Air Act, and the companies were allowed to maintain them, but not, in the name of maintenance, to rebuild them -- in effect replace them -- without the installation of new anti-pollution equipment. That's what they are said to have done, thereby continuing to pollute on the cheap. The midwestern and southern pollution floats to the northeast, and seriously fouls the air of New York and New England. It is hard to persuade rate-payers in one region to accept responsibility for cleaning the air in states hundreds of miles away, but that is part of what the law rightly commands and part of what the Environmental Protection Agency and Justice Department are trying to bring about.
The appropriations bills contain more than two dozen riders poking holes in environmental laws. The president has said he'll stand for none of them. In fact, he'll likely end up beating back some but accepting others, as he has in the past. This one ought not end up in the accepted column. If the utilities and those who support them in and out of Congress want to change the fundamentals of the Clean Air Act, they should enter through the front door, not try to do it obliquely in the fine print of an appropriations bill.