Whitman Sampler

Brook Raflo Assistant Editor

With barely enough time to unpack her bags, Christine Todd Whitman and her staff at the Environmental Protection Agency (EPA), Washington, D.C., already have won a U.S. Supreme Court case regarding the Clean Air Act, decided on diesel rules, pledged support for new Brownfields legislation, praised the agency's 2002 budget and committed to fight global warming.

These actions have some industries wondering what additional changes the new president's administration will bring.

Clean Air Act. In a unanimous decision written by Justice Antonin Scalia, the U.S. Supreme Court has upheld the EPA's power to issue environmental rules under the Clean Air Act (CAA), which sets ambient air standards for smog and particulates. Additionally, the court has ruled that the EPA does not have to consider implementation costs when setting CAA air quality standards that protect human health.

“This was the most significant challenge to EPA's authority under the Clean Air Act in past 30 years,” says David Biderman, general counsel for the Environmental Industry Associations (EIA), Washington, D.C. “What it really means for our industry is that cost isn't going to be part of what the EPA looks at when developing these ambient air standards.”

The case was brought by the U.S. Chamber of Commerce and a coalition of industry groups, including the American Trucking Association (ATA), Alexandria, Va., that argued the EPA unconstitutionally usurped congressional legislative powers when it revised the rule in 1997.

The CAA requires the EPA to review all of its air standards every five years. At its last review in 1997, the EPA made the requirements more stringent in light of several health studies. Business groups challenged the EPA, saying it misinterpreted the act by giving itself unlimited discretion in setting the rules. But the Supreme Court rejected the core of the plaintiffs' argument.

While the court upheld the EPA's right to issue CAA standards, it found fault with the agency's implementation of the 1997 ozone standards and ordered the agency to develop a more “reasonable” interpretation of the law.

In other words, “while EPA won on the law, they lost on the actual standard,” Biderman says.

What is most significant about the decision, however, is that the court — known for questioning agency authority — gave it, says Barry Shanoff, Waste Age's legal editor and a Washington, D.C.-based environmental lawyer.

“This is a Supreme Court that has been quick lately to cut the legs out from agency actions,” Shanoff says. “But here, they upheld what the agency did and said Congress and the agency did a good enough job.”

Diesel Rules. During former President Bill Clinton's final weeks in office, the EPA published a rule calling for a 97 percent reduction in diesel fuel sulfur content by 2006 and a 90 percent reduction in diesel engine particulate emissions by 2007. As the new administration moved in, some businesses expected the EPA to review the decision. Whitman did. And at the end of February, she decided to move forward on schedule, noting that a “significant lead time is provided in the rule for the introduction of new cleaner fuel into the marketplace.”

This decision did not surprise Chaz Miller, EIA's state programs director. “A number of truck and other industry-related people said the rule should go through, so it sent a pretty strong signal that the industry was divided and that a significant chunk of the industry wanted to go ahead with the rule,” he says.

In its comments to the EPA, the EIA asked what the agency would do if the diesel rule resulted in insufficient fuel and engine supplies. But at the Municipal Waste Management Association's annual meeting in March, EPA officials dismissed these concerns, saying contingency plans would be available to handle unforeseen shortages.

In an official EPA statement, Whitman said, “engine manufacturers will have flexibility to meet the new standards through a phase-in approach between 2007 and 2008.”

Brownfields. On her first day of testimony to Congress as EPA Administrator, Whitman told a Senate subcommittee that the administration supports new Brownfields legislation currently on the table.

The bill, which has bipartisan support, is designed to protect Brownfields developers from future lawsuits by providing “finality for state cleanups … while allowing the federal government the specific opportunity to come back if the situation requires it,” according to Senator Bob Smith, R-N.H., chairman of the Senate Environment Committee.

Additionally, the EPA's new budget states that “legal obstacles to cleanups should be removed, the Brownfields tax incentive made permanent and federal assistance made more effective by cutting red tape and reforming existing funding mechanisms.'”

Budget. In late February, Whitman in an EPA press release praised President George W. Bush's budget and the agency's allotment of $7.3 billion for 2002. What the release does not mention, however, is that the new budget represents a $499 million reduction in EPA funding.

According to President Bush's budget blueprint, “the $499 million reduction from the enacted 2001 level is almost entirely due to the elimination of unrequested earmarks.” But the blueprint does not mention specific programs to be eliminated.

Whitman assured the public that the agency's “core” activities would not be affected, saying, “The core of EPA's regulatory research and enforcement activities is in its operating program, which is funded at $3.7 billion, the second highest level in EPA's history.”

And, she added, in an effort to give more enforcement power to state and local governments, the budget includes an unprecedented $1 billion in grants to “help states administer programs delegated to them under federal environmental statutes.”

Global Warming. The EPA might consider supporting legislation to regulate carbon dioxide, a major greenhouse gas, according to Whitman, who surprised many with her impromptu comments to the press following congressional testimony in March.

Historically, President Bush has been more cautious on this issue. He opposed a 1997 agreement reached in Kyoto, Japan, requiring industrial countries to reduce greenhouse gas emissions. However, he has said additional research is needed to determine the extent to which manmade pollutants — resulting from burning fossil fuels — may be heating the earth's atmosphere.

Some interpret Whitman's comments as a change in the administration's position, which has several coal and utility industry officials worried. In March, Bush sent Whitman to Trieste, Italy, to discuss the “Kyoto Protocol” with environment ministers from seven industrial nations, including Britain, Canada and France. There, Whitman reiterated the administration's plan to review the Kyoto Protocol thoroughly, and she committed to reaching an agreement on outstanding political issues.

“You have a fundamental disconnect if you're going to be pursuing an energy policy that relies on [coal] on the one hand and a regulatory strategy that puts an unrealistic cap on carbon emissions on the other,” Glenn F. Kelly, a coal industry representative from the Global Climate Coalition, told the Washington Post.

Whitman, on the other hand, calls the administration's stance “balanced.”

“We'll do things that are hailed by environmentalists and some things we'll get skewered for,” she said before leaving for Italy. “We want to bring about a balance.”