The legal saga began in December 2001, when a funny bipartisan duo, the Sierra Club and Judicial Watch, a D.C.-based conservative ethics watchdog group, teamed up to file a lawsuit against the White House. The goal of the suit: to find out whether Cheney’s clandestine task force negotiations were illegally influenced by energy industry kingpins from companies like Enron, Southern Co., and Cheney’s own pride and joy, Halliburton. Cheney’s Justice Department lawyers, who declined comment, have repeatedly insisted that Cheney can ignore the court order to release the papers because of the constitutional separation of powers.

What exactly does that mean? Not much, according to Sierra Club lawyer David Bookbinder. “The White House is claiming that simply by virtue of his executive status, the vice president is fundamentally immune from having to appear in front of any federal court and give any information or account of his activities. Period. It’s that preposterous,” he said.

Tom Fitton, president of Judicial Watch, is equally appalled: “This is a completely unprecedented attempt to overextend executive privilege,” he said. “It calls into question the integrity of the court system in this country — particularly because we’re 3-and-0 right now.” In other words, first the U.S. District Court for the District of Columbia, where the lawsuit was originally filed, ordered Cheney to release the documents; second, after the vice president appealed the case to a federal appellate court three-judge panel, he was again ordered to show his cards; and third, after Cheney steamrolled on to the full nine-judge appellate court, it refused to even reconsider the matter. With this track record, it’s difficult to understand why the Supreme Court would agree to hear the case.

For some, it is an ominous sign. “We’re totally screwed,” said one lawyer close to the case against Cheney who asked to remain anonymous. “The Supreme Court took the case to kill it. They did not take the case for any other reason than to drive a big spike through it.” The lawyer went on to explain that if the Supreme Court agrees to take a case, it means that at least four of the justices believe that the original D.C. circuit court got its ruling wrong. “The outcome of this case is all but predetermined,” said the lawyer.

Fitton is more hopeful, calling the Supreme Court’s consent to hear the case a professional courtesy: “There is traditionally deference to the executive branch when the high court is asked to take on cases like this.” Moreover, there are several Supreme Court rulings that suggest that the kind of executive immunity Cheney is requesting is flat-out unconstitutional — among them, United States vs. Nixon and Clinton vs. [Paula] Jones, which forced presidents Nixon and Clinton, respectively, to be treated in the judicial system like any other American. “If the Supreme Court upholds the letter of the law,” said Fitton, “then we will very clearly win.” And if the Supreme Court forces Cheney to come clean, it’s almost a given that the evidence will be damning: The media has already reported that Kenneth Lay and other energy honchos not only met with Cheney on task force-related matters but also, in the case of Lay, submitted an eight-item wish list for the administration’s new energy policy.

But in the end it may not matter that much, because the Bush team will likely get exactly what it is looking for: extra time. According to Bookbinder, this whole strategy comes right out of the Karl Rove playbook. “This Bush administration is basically trying to stall the whole process for another year,” said Bookbinder, “so that when the ruling comes out — if it does — it won’t interfere with the November elections.”

Campbell’s Swoop

There’s a certain poetic justice in the fact that former U.S. EPA administrator Christie Todd Whitman’s home state of New Jersey — maligned by some as the “armpit of America” because of its heavy industry — is leading a defiant counterassault on the Bush administration’s mercury rollback. On Dec. 10 Bradley Campbell, commissioner of the New Jersey Department of Environmental Protection, proposed new rules that would reduce mercury emissions from power plants, iron and steel smelters, and municipal solid-waste incinerators by between 75 and 95 percent by 2007.

By contrast, a Bush administration proposal officially unveiled this week only calls for a 70 percent mercury reduction overall by 2018. “The Bush administration’s proposed mercury rules ignore science and will damage public health,” said Campbell. “The [EPA has] very clearly chosen to neglect the environmental and human problems caused by mercury, leaving it to states alone to shoulder the responsibility of protecting its citizens.” The states that are doing so include not only New Jersey but also Connecticut, Massachusetts and Wisconsin, all of which have proposed tough new standards for emissions of mercury, a dangerous neurotoxin that can cause developmental problems. And dozens more states have good reason to follow suit, given that more than 40 states issue fish-consumption advisories warning their citizens about dangerous mercury levels in fish caught in state waterways.

If New Jersey’s rules were enacted nationally, annual mercury emissions from coal-fired power plants would decline from approximately 48 tons to about five tons in the next three years. That, Campbell says, is one reason the federal government should follow his state’s lead. “No matter what we do at a state level, a patchwork of local programs distributed all over the country is no substitute for an aggressive federal plan,” he said. “This is a problem that by definition must be addressed at a federal level because air emissions travel between states.” Indeed, more than a third of New Jersey’s mercury pollution creeps in from neighboring states.

The EPA, however, insists on the virtues of its mercury plan, calling it far more economically feasible than the Maximum Achievable Control Technology standards put forward by the Clinton administration, which would have required plants to install the best available pollution filters and resulted in a 90 percent drop in mercury emissions by 2008. “The MACT standards don’t have the flexibility that our cap-and-trade program has,” said EPA spokesperson Cynthia Bergman. “We’re proposing instead a 70 percent cut in mercury emissions over time, which will achieve steep reductions without hitting consumers with spikes in electricity prices.”

But Campbell counters that of the 10 coal-fired power plants in his state, three have already been retrofitted with technologies to achieve 90 percent mercury reductions, and the average rise in electricity bills related to those plants was negligible. And anyway, he notes, money isn’t always the bottom line: “Even if the costs were higher, which in our case, I repeat, they are not, it’s reckless to be dickering about consumer prices when the alternative is brain damage!”

Swimming Against the Tides

The archconservatives are up in arms about liberal foundations — the type whose philanthropic dollars help keep environmental organizations (including Grist) afloat. The object of the most recent attack was the new Pittsburgh-based branch of the Tides Foundation, which is partly funded by the Vira Heinz Endowment and the Howard Heinz Endowment, chaired by Teresa Heinz Kerry (the wife of Democratic presidential contender Sen. John Kerry). The new Tides branch was lambasted in an Issue Alert entitled “Secretive Left-wing Group Has Ties to Heinz Endowments,” which, strangely, was sent out this week to everybody on the e-mail list of the House Resources Committee press office.

“We just forwarded it on [to] our press release [list] as an informational piece,” said Matthew Streit, who works in the press office. The Resources Committee is chaired by Rep. Richard Pombo (R-Calif.), who is so notorious for berating environmentalists in press releases that his announcements are known in environmental circles as “Pomblasts.”

This particular Pomblast was written by Gretchen Randall, a researcher at the right-wing consulting firm Winningreen, which claims to be “dedicated to the development and promotion of sound environmental public policy.” It was derived from an Op-Ed that Randall’s husband Tom published in the Pittsburgh Tribune-Review and a report the couple wrote jointly for the D.C.-based right-wing organization Capital Research Center. “Money,” the report begins, “is to the Tides Foundation and Center what water is to the tide. You can’t be sure from what source any part comes. You can’t be sure where any part goes. But it can knock you off your feet and pull you down. And there is an ocean of it.”

Tom Randall’s opinion piece attacks the Tides Foundation’s “secretive funneling of cash from private foundations” to “extreme left-wing activist groups whose interests include exclusion of humans from both public and private land.” Those “extreme left-wing activist groups” include the Union of Concerned Scientists and the Natural Resources Defense Council. According to the report, other worrisome causes supported by the Tides Foundation include antiwar protests, gun control, abolition of the death penalty, pro-choice activism, opposition to free trade, and gay, lesbian, bisexual and transgender advocacy.

Christopher Herrera, the spokesperson for Tides Foundation, was nothing but amused by the attack: “Essentially they are describing the substance of what we do to a T — only in strident, arch-conservative language [and] completely inventing this notion that we’re engaged in secretive, illegitimate financial schemes.”

Indeed, the fiscal operations of the Tides Foundation are secretive, but they are all done by the book — the same financial mechanisms used by the vast majority of some 600 or more community foundations across the country, such as the New York Community Trust, as well as for-profit entities that have philanthropic arms, including Charles Schwab and Fidelity. The mechanism used by all of these institutions, including Tides, is called the “donor-advised fund,” meaning the organization receives money from people who want to give to charitable organizations anonymously. “This is standard accounting,” says Herrera. “Our books are impeccably kept — what more likely concerns these [critics] is that our books are so full.”

In the end, the conservatives might just be unhappy that the left is learning how to play the right’s own games. “While Tides may deplore the free market,” the report snaps, “it certainly knows how to maneuver within it.”

EPA Administrator Mike Leavitt had a far rosier assessment of the administration’s proposed rules than did Schaeffer, calling them “the largest single investment in any clean air program in history” — one the administration expects to cost industry as much as $5.5 billion annually when in full effect. Over the next 12 years, Leavitt claimed, the rules would result in “the largest reduction in air pollution in more than a decade.” Even the New York Times praised them as “good news,” saying the “positive initiatives on smog and acid rain” were overshadowed by the mercury ruckus.

The EPA had intended for the P.R. machine to spin in the other direction, according to John Walke, clean air director at the Natural Resources Defense Council: “The acid rain and smog initiative was supposed to overshadow that unconscionable mercury proposal. The EPA’s plan was to roll out all the rules together to soften the mercury blow. But we caught them off guard with a leak from inside the agency on Tuesday, and the whole thing exploded before they could control it.”

Walke argues that the good news isn’t nearly good enough to balance out the bad. “The smog and acid rain rules are better than nothing, but ‘nothing’ is letting an estimated 60,000 people each year die prematurely from small-particle air pollution associated with both sulfur dioxide emissions and nitrogen oxide emissions,” he said. “That’s not only wrong, it’s criminal.” The administration’s proposal would reduce that death toll, but Walke says it wouldn’t reduce smog and acid rain levels nearly as much as the EPA is authorized to require under the Clean Air Act. In fact, in September 2001, EPA officials presented a report to a utility trade association that projected control levels for smog and acid rain that would be required under the act by the end of the decade — levels considerably stronger than those just proposed.

The Bush administration’s current rules — essentially a regulatory version of Bush’s stalled Clear Skies initiative — would cap sulfur dioxide emissions from power plants at 3.2 million tons a year by 2015. That’s a two-thirds decrease compared with current emissions, which amount to 10.2 million tons per year, but still allows 1.2 million tons more pollution for three years longer than EPA officials had projected in 2001. Likewise, the Bush administration’s new proposal would limit nitrogen oxide to 1.7 million tons a year by 2015, compared to current emissions of 4.1 million tons, while the EPA in 2001 projected the need for a cap of 1.09 million by 2010.

“You have to peel the onion back one layer to see what they are doing — adopting the go-slow, weaker program,” said Walke. “The caps aren’t ambitious enough, and the time frame isn’t fast enough given that what’s at stake here is thousands of premature deaths.” What further concerns Walke is that the Bush administration’s proposed near-term mercury reductions — 30 percent by 2010, compared to the 90 percent reduction by 2008 that Clinton’s plan would have called for — would come entirely as a side benefit of installing controls for sulfur and nitrogen oxides. Filtration technologies for these two pollutants also trap some mercury, but in smaller quantities than technologies designed to filter mercury alone. “We were in shock when we saw the total number of mercury reductions the EPA is calling for in their plan. They want to get to 34 tons by 2010, down from 48 tons today. That 34 is the do-nothing number,” Walke said.

That is, 34 tons is precisely the amount of mercury reductions the industry would be expected to achieve as a “co-benefit” of the Bush administration’s proposed acid rain and smog reductions — without doing anything directly to control the neurotoxin. And it’s a whopping seven times higher than what was called for by the Clinton administration’s proposed cap. “What that translates to, quite simply, is not just hundreds of millions in savings for industry, but subjecting people — especially children — to higher risk of brain damage and developmental problems from mercury poisoning,” said Walke. “It’s a grotesque giveaway.”

Energy and matter
The proposed clean-air rules weren’t the only big announcement to come from the Bush administration last Thursday. Despite assumptions by some that the energy bill was doomed after Senate Democrats (and a handful of rogue Republicans) prevented its passage at the end of this year’s congressional session, Bush and Co. say they’re working hard to resurrect it and ensure its passage when the next session begins in January. Energy Secretary Spencer Abraham said he was encouraging Republicans in the Senate to rework a few key issues to get the two remaining votes needed for passage. A chief sticking point is concern over the fuel additive MTBE, which is widely known to contaminate drinking water supplies. The current energy bill grants MTBE manufacturers immunity from lawsuits over contamination, a provision that galled senators from non-MTBE-producing states.

“MTBE is the main issue that is preventing the Republican majority from passing the energy bill. Most of the senators who have been most vocal and passionate in their debating against the energy bill have focused on the MTBE problem,” said a staff member at the Senate Committee on Energy and Natural Resources who asked to remain anonymous. “The Republicans realized that they miscalculated the importance of this issue and believe that if they can address those concerns then — voilà — they get their two votes.”

In reality, though, it’s a bit more complicated than that. If the crafters of the bill change the MTBE provision to satisfy the concerns of senators who oppose it (moderate Republicans from the Northeast), they risk losing senators from MTBE-producing states. Moreover, the House of Representatives overwhelmingly favored the MTBE provision and will not be pleased with any efforts to change it. “We see no evidence at all that any senators are weakening or softening in their view on the bill, even with changes to MTBE,” said the staffer. “And certainly [such changes] would only anger lawmakers in the House.”

But House and Senate Republicans have other backroom deals in the works. “Are they pulling out other strategies to buy votes? Absolutely!” said the staffer. “That’s what makes this place tick. They’ll continue until they get the two votes that they need.”

So far, none of the wheeling and dealing has paid off — including the deal Senate Republicans have tried hardest to shop, which would funnel money from the Abandoned Mine Land Cleanup Program to, among other things, benefits for retired mine workers. The coal miners’ health fund would reap several hundred million from this deal — a fat carrot for senators from West Virginia, home to many United Mine Workers retirees.

Energy bill advocates also tried to buy the votes of the two Hawaiian senators with an offer to create a $3 million hydrogen research facility in Hawaii that would be named after the widely beloved late Democratic Hawaiian Sen. Spark Matsunaga. And the list goes on. “There are all kinds of goodies that will be offered — bridges and parks and highways and things like that — if people will commit to voting for the energy bill,” said the staffer.

Still, some environmentalists insist there’s nothing to be worried about. “This bill is a dead fish; the more it lies around, the more it stinks,” said Anna Aurelio, an environmental lobbyist for the U.S. Public Interest Research Group. “Every day we read through the 1,200-plus pages of this bill, we find more and more reasons why it should be tarred and feathered — more and more reasons why it would be really embarrassing for anybody who would even consider changing their vote.”

Adrenaline Russia
Ever since the erroneous assertion that Russia had rejected the Kyoto Protocol was corrected last week, the climate-change talks in Milan have been abuzz with chatter about how best to cajole Russia on board. In a bid to demonstrate to President Vladimir Putin the economic benefits of ratifying the treaty, Italy, the host nation, announced plans to help finance projects to reduce greenhouse gas emissions from its Russia-based factories.

This, of course, means very little to Russia. Even if it signs on to Kyoto, the country doesn’t need to worry about reducing emissions at its factories. In fact, Russia doesn’t need to make any emissions cuts at all. On the contrary, if it ratifies Kyoto, the nation will have loads of emissions credits to sell. The reductions Kyoto requires of each country are based on that nation’s 1990 emissions, and Russia’s economy has shrunk so much in the last 13 years that its emissions have dropped by 26 percent. Kyoto, in fact, could buoy Russia’s flagging economy with credit revenues, which is why the treaty has always been perceived as a sweetheart deal for the country. But now, the question is: how sweet?

When the protocol was crafted in 1997, it was assumed that the single largest market for the extra Russian credits would be the United States, the biggest greenhouse-gas emitter in the world. So when the U.S. pulled out of Kyoto, the market for Russia’s credits shrank dramatically. With U.S. involvement, Russian economists figured the country could sell between $1 billion and $2 billion worth of credits per year. Now, the potential sales have dwindled to between $100 million and $200 million.

The big question for Russia, therefore, is where it can find a decent market for its credits. “The public campaign last week that convinced the world that Russia was waffling was in all likelihood designed to send a very clear message to the E.U. and Japan, saying they’d better step up to the plate to buy Russian credits,” said Phil Clapp, president of the National Environmental Trust. “The way they said it publicly was, ‘We’re not sure it’s an advantage to our economy at all,’ but that was just diplomatic doublespeak. They’re just dickering for more money.”

But it’s not just Russia calling the shots. Currently, Russia has far stronger economic ties to Europe than it does to the U.S., and the importance of the E.U. as a Russian trading partner is only set to increase. That gives the Europeans an edge in the negotiations. In particular, Russia wants to channel its very large reserves of natural gas to Central and Western Europe. “Building these natural gas pipelines is an extremely high economic priority for the Russian government,” said Clapp, “so Europe can say, ‘If you want us to buy, you’ve got to cooperate [on Kyoto].’”

Another major economic goal for the Russians is membership in the World Trade Organization — and Europe has made it very clear that it will not support Russian entry unless the country ratifies the climate change protocol. Add to that the ongoing pressure from other principal trading partners — namely, Canada and Japan — to jump aboard the Kyoto bandwagon, and U.S. pressure on Russia to resist begins to seem less and less formidable.

Muck it up

Here at Muckraker, we always try to keep our eyes peeled and our ears to the ground (a real physiognomic challenge). The more sources we have, the better — so if you are a fellow lantern-bearer in the dark caverns of the Bush administration’s environmental policy, let us know. We welcome rumors, tips, whistle-blowing, insider info, top-secret documents, or other useful tidbits on developments in environmental policy and the people behind them. Please send ‘em along to muckraker@gristmagazine.com.

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The opening act starred Paula Dobriansky, the Bush administration’s leading representative at the conference and undersecretary of state for global affairs, who published an op-ed in the Financial Times on Monday denouncing the treaty. “[T]he Kyoto Protocol [is] an unrealistic and ever-tightening regulatory straitjacket, curtailing energy consumption,” she wrote.

Dobriansky went on to laud U.S. climate change “policy” — which is not enforced, but voluntary, and which hinges on the development of “breakthrough technologies” (most of them fossil fuel-based or reliant on carbon sequestration, which has not been proven effective). The technologies, she argued, will allow the United States to reduce emissions while continuing its upward surge in energy consumption.

According to Jennifer Morgan, director of the climate change program at the World Wildlife Fund and a participant in the Milan conference, “Dobriansky’s position clearly demonstrates the kind of obstructionist, uncooperative, unilateral, you’re-with-us-or- you’re-against-us attitude that has already seriously degraded U.S. international relations.” Worse, she said, the Bush administration has sent a large delegation of about 100 officials (from agencies ranging from the Department of Agriculture to the State Department) who are evidently trying to sabotage the talks — deliberately stalling and interrupting the negotiations.

“Many of these officials are high-level Bush appointees who are there to promote U.S. programs and conduct exclusive, bilateral talks with officials from other Kyoto-supporting countries,” such as Japan, Brazil, and Italy, said Morgan. The goal is to get these countries to collaborate on programs the U.S. is developing for carbon sequestration, “clean coal,” and fossil-fuel-derived hydrogen, among others — far-flung programs that show no short-term vision: “It seems to be an effort to coax these countries into bilateral agreements and, eventually, away from a cooperative global commitment,” said Morgan. President Bush pledged in 2001 not to block other countries from moving forward on Kyoto, and this week White House spokesperson Scott McClellan vehemently denied that the administration is trying to influence other nations during the Milan negotiations. But Morgan doesn’t buy it: “[Bush is] clearly making efforts to move the world away from Kyoto as quickly as possible.” So are some high-level advisors to Russian President Vladimir Putin — in particular, Andrei Illarionov, who misled reporters at the Kremlin on Tuesday when he announced: “Of course, in its current form, this protocol cannot be ratified.” Later that afternoon, a spokesperson for Putin’s office denied this, telling a Wall Street Journal reporter, “The Russian government does not yet have a clear position on the Kyoto Protocol. The question is being reviewed, and there are different opinions.”

An executive of a U.S. environmental organization who is at the conference and asked to remain anonymous said that, according to scuttlebutt in Milan, Illarionov may have personal ties to an American company that influenced his deceptive remark. “Illarionov has reportedly had extensive dealings with Exxon — a company that has a long-running track record of trying to defeat Kyoto,” said the executive. “I’ve heard from several sources that Illarionov recently presented a PowerPoint plan to international officials that had an Exxon logo in every corner of every page.” Putin, too, reportedly met with ExxonMobil CEO Lee Raymond during a visit to the U.S. in September 2003 — most likely to discuss the potential $26 billion deal between ExxonMobil and the Russian oil company Yukos that at the time was in negotiations.

Russia’s deep economic ties to energy industries may, indeed, threaten the future of the Kyoto Protocol — but the country is nevertheless many steps ahead of the U.S. in that it has clearly acknowledged the scientific fact of global warming and expressed a desire to take regulatory steps to address it. The Bush administration has done neither. In late November, Dobriansky herself made a speech at the right-wing American Enterprise Institute in which she declared, “The extent to which the man-made portion of greenhouse gases is causing temperatures to rise is still unknown.”

Dobriansky would do well to suppress this scientific ignorance in Milan — unless she’s prepared to get pelted off stage with rotten tomatoes. She would also be wise to refrain from repeating the condescending remark she made in her AEI speech about the failure of those who believe that global environmental conditions are getting progressively worse “to appreciate … the ability of technological breakthroughs to solve our environmental problems or render them moot.”

Of course, nobody committed to fighting global warming is oblivious to the promise of clean technologies — that’s why the countries that have ratified the Kyoto Protocol are busy adopting mandatory targets for use of renewable technologies and mandatory carbon-trading programs; that’s why they’re requiring the most sophisticated pollution filters on power plants and creating subsidies for short-term solutions like hybrid-engine cars. Meanwhile, the Bush administration is busy playing with smoke and mirrors.

Military intransigence
Last week, the Bush administration was also busy granting the Pentagon broad exemptions from federal environmental laws in a supposed effort to address another international imbroglio: the war on terror.

A bill signed by Bush last Monday, Nov. 24, authorizes $401.3 billion in defense spending for 2004 and also rejiggers two key environmental laws that have irked the Department of Defense. The federal Endangered Species Act was rewritten to prohibit federal wildlife officials from designating areas as “critical habitat” if they are needed for military training (no small concern, given that more than 300 species of endangered plants and animals live on the 25 million acres of federal land managed by the DOD). The Marine Mammal Protection Act was also rewritten to permit use of Navy test sonar systems that may injure whales, dolphins and other protected marine animals.

The legislation, according to a written statement by Defense Secretary Donald Rumsfeld, will “provide greater flexibility to train our fighting forces in a realistic manner and allow us to carefully test and deploy critical technologies.” When championing the measure on the House floor in November, Rep. Duncan Hunter, R-Calif., went even further: “The real endangered species here is a 19-year-old Marine rifleman who needs the very best training that he can get here at home before he projects American power overseas.” The closing words of Hunter’s speech practically dripped with emotion: “This is very, very important legislation, freedom-to-train legislation, Mr. Speaker.”

That jeremiad fell flat next to the commentary of Rep. John Dingell, D-Mich. The ranking minority member of the House Committee on Energy and Commerce and a staunch opponent of the rule changes, Dingell got to the heart of the matter with a simple observation: “Over the last five years, our troops have toppled a dictator in Iraq, stopped a genocide in Kosovo, and defeated the Taliban in Afghanistan. Our troops prepared for those missions without exemptions from our cornerstone environmental laws.” He cited recent comments from former NATO Supreme Allied Commander Gen. Wesley Clark, a presidential contender, to corroborate these sentiments: “In all my years of service, complying with the environmental laws never compromised the military readiness of troops under my command. Additional exemptions aren’t needed.”

Clark’s opinion is shared by a vast majority of the American public. According to a Zogby poll from May 2003 — when America’s pro-war sentiment was at its height — the public opposed exempting the military from environmental laws by a margin of 84 to 10.

What concerns environmentalists most is that the original request for exemptions, which was leaked to the environmental community in December 2002, concerned not just two but at least five sweeping environmental laws — including the Clean Air Act, the Resource Conservation and Recovery Act (a toxic-waste law), and the Superfund hazardous-waste cleanup law. (More than 100 military sites are on the Superfund list of the nation’s most contaminated properties.) “They’ve got two down, and three to go,” said Megan Uzzell, a senior policy analyst at National Environmental Trust. “We fully expect that next year, the Bush administration will continue to make every effort to write the military out of these public health laws.”

Indeed, Deputy Defense Secretary Paul Wolfowitz has demanded even more exemptions. In a March 7, 2003, memo from Wolfowitz to the heads of the Army, Navy, and Air Force, he declared: “I believe it is time for us to give greater consideration to requesting such exemptions [from the laws mentioned above as well as the Safe Drinking Water Act, the Clean Water Act and more] in cases where environmental requirements threaten our continued ability to properly train and equip the men and women of the Armed Forces. … I hereby direct you to develop procedures that will ensure that … appropriately tailored exemption[s] [are developed] before military preparedness is affected.”

If the Bush administration gets its way, the “real endangered species” could be Bush voters who care at all about the environment — including tens of thousands of families living on or near the military’s 425 bases nationwide.

Mercury rising — and rising, and rising
Soon after Mike Leavitt made his first speech as U.S. EPA administrator Tuesday morning — a predictably glib and ambiguous commentary about his devotion to the environment — he made a move that was decidedly unambiguous and showed very little devotion to the environment. Leavitt submitted a proposal to the Office of Management and Budget that would rescind a landmark rule issued by the Clinton administration to significantly clean up emissions of the toxic pollutant mercury under the Clean Air Act.

The Bush administration has determined that the rule, which would have required coal-fired power plants to cut mercury emissions as much as technologically possible, can be replaced with a less costly, more flexible approach that would supposedly have similar health benefits. “We have conducted a thorough re-assessment of the [Clinton rule],” reads the proposal the EPA submitted to OMB, “and have determined that [our alternative rule] once implemented, would adequately address the hazards to public health associated with Hg [mercury] and Ni [nickel] emissions from electric utility steam generating units … and that the [Clinton regulation] is not necessary.”

What this fails to mention is that the Bush administration’s proposed alternative wouldn’t reach its target of a 70 percent reduction in mercury emissions until 2018 — and, much to the dismay of environmental advocates, it’s a cap-and-trade system. Cap-and-trade programs, which let companies buy and sell the right to emit pollutants, are widely considered to be a great approach to dealing with non-toxic emissions like carbon dioxide and sulfur dioxide that diffuse into the air without affecting the neighborhoods where they are released — but other emissions, such as mercury, create local toxic hotspots in the areas immediately surrounding the polluting facility. In this case, if dirty plants in Chicago bought mercury pollution credits from clean plants in Maryland instead of cleaning up their own emissions, Chicago residents would get a real bum deal.

“This rollback on mercury standards could be worse for public health than the New Source Review rollback,” said Debbie Reed, a legislative director at National Environmental Trust and former legislative director in the Clinton White House. “In a word, mercury is a neurotoxin.” It’s been proven to cause severe brain damage and developmental problems in humans, and its current levels are dangerously high. When spewed from coal-fired power plants, mercury contaminates nearby waters and is easily absorbed into the flesh of fish — which is why pregnant women are often cautioned not to eat fish. Forty-one states currently have fish-consumption advisories due to mercury poisoning.

“This is another arsenic,” said Frank O’Donnell, executive director of Clean Air Trust. “The Bush administration is gutting standards on a toxic regulation and threatening public health — in this case as an early Christmas present to the coal industry.” Let’s hope that it’s enough like the arsenic fiasco that public outrage will prevent the rule from becoming official.

Muck it up

Here at Muckraker, we always try to keep our eyes peeled and our ears to the ground (a real physiognomic challenge). The more sources we have, the better — so if you are a fellow lantern-bearer in the dark caverns of the Bush administration’s environmental policy, let us know. We welcome rumors, tips, whistle-blowing, insider info, top-secret documents, or other useful tidbits on developments in environmental policy and the people behind them. Please send ‘em along to muckraker@gristmagazine.com.

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For more environmental news, sign up for Grist Magazine’s free e-mail service.

The current draft, Murphy said, could affect an area even more vast. The draft revisions would redefine the scope of the Clean Water Act to exclude “ephemeral washes or streams” created by rain and snowmelt rather than groundwater; streams that flow for less than six months out of the year; and many wetlands defined as “isolated” or “non-navigable.”

The very terms used to define these areas — isolated, ephemeral — suggest a fundamental ignorance (or dismissal) of how water systems work, according to environmental advocates. Betsy Otto, senior director of the watersheds program at the environmental organization American Rivers, says that more than three decades of government policy has been based on scientific research indicating that all wetlands are either biologically or hydrologically connected to larger waterways. Even the smallest and most isolated of wetlands can provide spawning grounds for fish and fowl that are critical to the ecosystem as a whole, and the areas act as crucial filters that absorb pollutants before they can drain into bigger waterways.

EPA spokesperson Cynthia Bergman stressed that no decisions have been made on whether or how to proceed on this issue. She said that the draft of the rule did not come from an EPA official, and that no agency officials want to discuss the rule change unless it becomes an official proposal.

In January, the EPA defended its initial draft revision as an extension of the Supreme Court’s so-called SWANCC decision (pronounced “swank”), which permitted the Solid Waste Agency of Northern Cook County, which manages waste for 23 suburban Chicago towns, to transform an isolated wetland into a garbage dump. The permit was originally denied to the consortium because the wetland was used by migratory birds, but the high court ruled that the birds’ use of the area was not sufficient grounds for denying development rights.

“It was one thing to deny wetland protection based on the presence of migratory birds alone,” said Otto. But now, she argued, the EPA is trying to steer a thousand-foot tanker through the Supreme Court’s canoe-size loophole. According to Murphy of the NWF, upward of 90 percent of streams in the Southwest are intermittent due to the arid climate and would not fall under the purview of the revised Clean Water Act rule. Areas like San Francisco’s wetlands that are diked and cut off from the bay could be drained and junked by developers. Intermittent headwater streams, which are often important spawning grounds for salmon, might suffer under this rule change as well — including those feeding the Klamath, Eel and Salmon rivers in the Northwest.

Interestingly, it’s the duck hunters and anglers — traditionally Republican Bush supporters — who are waging the strongest resistance to the potential rule change. “We were shocked when we saw this draft revision of the rule. It was pretty much a worst-case scenario,” said Scott Yaich of Ducks Unlimited. “It would represent a radical change from the kind of wetlands protection we’ve seen in the last 30 years. And it would spell doomsday for a lot of ducks.” Happily, it seems the hunt-and-fish crowd is less committed to protecting their politicians than their prey.

Mowed down

Meanwhile, Sen. Kit Bond, R-Mo., and the nation’s largest small-engine manufacturer, Briggs and Stratton, are taking aim at a different target: states’ rights. Briggs and Stratton operates two large factories in Missouri; no surprise, then, that Bond led the campaign to block an effort by California to enact clean-air standards for lawn and garden equipment powered by small engines.

Bond got his way: On Wednesday last week, the Senate voted to insert an amendment into an appropriations bill that would not only ditch California’s proposal but relax what little regulation already exists for small engines. Bond’s success marked yet another sabotaging of California’s attempts to cut smog to safer levels by 2010. In October 2002, a state effort to enact new zero-emission-vehicle regulations was thwarted by the Bush administration. Now, with several of its major cities regularly violating clean-air standards, California is running low on solutions.

While emissions of lawn mowers and weed whackers might seem insignificant, those buzzing contraptions are in fact heavy polluters: Mowing a lawn for one hour produces as much pollution as driving an average car for 13 hours. By requiring that new small engines be equipped with catalytic converters, the California Air Resources Board would have eliminated as much pollution as if a whopping 1.8 million cars were taken off the road. Meanwhile, Bond’s amendment would be the equivalent of adding 700,000 cars to California’s roads.

Word inside the Beltway is that some governors are calling on congressional leaders to terminate Bond’s amendment, including the Terminator himself, California’s new Republican Gov. Arnold Schwarzenegger. Florida Republican Gov. Jeb Bush, despite party ties, is also putting in at least one call — to Rep. Bill Young, R-Fla. — to protest.

Frank O’Donnell, executive director of the Clean Air Trust, calls the campaign to kill the CARB regulations “one of the most shameless Beltway lobbying blitzes in recent memory.” From July 2002 through June 2003, Briggs and Stratton spent $340,000 on D.C. lobbyists.

No Briggs and Stratton officials or spokespeople were available for comment, but according to the company’s Web site, the California rule would have cost 22,000 manufacturing jobs in 23 states. Speaking on the Senate floor, Bond cited these facts — but failed to mention that the study that generated those numbers was paid for by Briggs and Stratton and was based on an earlier California proposal that was discarded in September. The senator also failed to mention that an analysis by CARB of the Briggs and Stratton study found that it had substantially inflated the cost estimate for the technological changes, leading to an inflation in the alleged impact on jobs. Nor did Bond note that the company reported (in material filed with the Securities and Exchange Commission) that it did not believe the CARB requirements would have “a material effect on [the company's] financial condition” because the California market represents a relatively small share of its business.

Bond also argued that the California rule change would pose a fire hazard, claiming that smaller catalytic converters were more prone to catching fire than the larger ones found in cars. Yet he failed to mention that the California Fire Chiefs Association wrote a letter to Sen. Dianne Feinstein, a Golden State Democrat and a strong advocate of the CARB standards, throwing its support behind the standards and opposing any effort to restrict the right of states to clean up the air. “We support the regulation moving forward,” wrote association president William McCammon on Nov. 11. “I believe that working closely with CARB we will find a solution that will provide a high degree of fire safety while maintaining CARB’s goals for air quality.”

What makes Bond’s lobbying blitz even more suspicious, according to O’Donnell, is that his right-hand man in the effort, John Stoody, is an employee of the U.S. EPA. In a “Dear Colleague” letter sent earlier this week, Bond suggested that other senators “contact me, or have your staff contact John Stoody, with any questions.”

Seems, then, that the Bush administration has been a key player behind the scenes on this effort to roll back protections. In other words, have your staff contact John Stoody with any questions.

Al Gore: Relief pitcher

If you have questions related to waterless urinals, however, the go-to guy is none other than former Vice President Al Gore. Long a champion of high-tech environmental solutions, Gore is now flush with excitement over a new kind of clean technology. In exchange for stock options (but no direct payment), Gore has agreed to serve on the advisory board of Falcon Waterfree Technologies and promote its flagship product: a urinal that traps waste in a replaceable cartridge and eliminates odor with a liquid sealant.

This may seem like a strange endorsement for a man who is nursing a somewhat beleaguered public image; hawking urinals has, if possible, even less sex appeal than promoting Viagra. But it could have a fat payoff, according to Joel Makower, co-founder of Clean Edge, Inc., a consulting group that works with industry on clean technologies. Makower said waterless urinal sales are poised for dramatic growth; currently a teensy $4.5 million industry, the green urinal biz could become a $90 million industry in the next few decades if the water-free technology becomes the industry standard. And the long-term need seems all but guaranteed: The United Nations predicts that by 2026, the world demand for water will outstrip the world’s supply by 56 percent.

With this in mind, Gore has advised Falcon to couch its advertising in terms that will appeal to politically active urinators. “We’re taking his advice,” said Jay Troger, president of the company’s U.S. division. “Our plan is to try and get major environmental groups to put our product on their agenda, including Sierra Club, Environmental Defense, Save the Bay. Our message is: This is yet another major advance in clean technology, and it’s critical for the well-being of the planet.”

Indeed. In a typical commercial installation, each Falcon urinal conserves an average of 40,000 gallons of freshwater per year. Each installation also saves significant water and plumbing costs, so it’s not surprising that these urinals are appearing at more and more high-profile locations, including Disney World, the Taj Mahal, and the IBM research headquarters in Raleigh-Durham, N.C. Not to mention sports arenas: The Florida Marlins’ Pro Player Baseball Stadium boasts 228 Falcon Waterfree urinals. With some 65,000 fans in attendance at Pro Player during each game of the World Series this year, the savings were easily 100,000 gallons per game. Not bad in an area of the country that recently had water-usage restrictions brought on by a three-year drought.

Understandably eager to celebrate this accomplishment, Falcon Waterfree Technologies issued the following press release: “Every half-inning there is a rush of fans heading for the restrooms,” it read. “What these fans may not realize is that they are relieving Miami-area water demands while relieving themselves.” For Gore’s sake, let’s hope the company relieves the P.R. person who came up with this line — before he or she calls on the former veep to do a product demonstration.

Muck it up

Here at Muckraker, we always try to keep our eyes peeled and our ears to the ground (a real physiognomic challenge). The more sources we have, the better — so if you are a fellow lantern-bearer in the dark caverns of the Bush administration’s environmental policy, let us know. We welcome rumors, tips, whistle-blowing, insider info, top-secret documents, or other useful tidbits on developments in environmental policy and the people behind them. Please send ‘em along to muckraker@gristmagazine.com.

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Responding to objections from the U.S. Army Corps of Engineers that the report’s suggestions would economically inconvenience dam owners and the Missouri River’s barge industry, Manson penned a three-paragraph memo ordering a second opinion on Missouri River management. This opinion is to be provided by a “special national team of [U.S. Fish and Wildlife] Service experts … referred to as ‘the Wise Guys’ or the ‘SWAT Team,’ [which] has served well in other complex, high-interest consultations,’” he wrote, with nary a trace of irony to soften the mafia-boss language. The replacement biological SWAT team will reach its conclusions after a 45-day study; the original team’s findings were based on more than 10 years of research and were confirmed by independent peer review as well as by the National Academy of Sciences.

Those original findings were also upheld last year by a federal court: When the Corps refused to adopt the flow-change recommendations made by the team in 2000, the environmental group American Rivers took the agency to court and won. Still, the Corps has only partially complied, and is now arguing that river conditions have changed since 2000 and that the science is unreliable: “Our [most recent] engineering studies have demonstrated that the proposed flow changes will not achieve desired biological attributes,” said Paul Johnston, a spokesperson for the Corps.

Johnston argued that mating habitat for river life should be created by bulldozers, not river flows: “We can build sandbars mechanically for mating habitat that tremendous flows [as well as commercial cost] would be required to accomplish naturally.” Johnston estimated that the commercial cost of implementing the scientists’ recommendations would be $30 million in lost annual hydroelectric plant revenue; in addition, the barge industry would face losses resulting from shutting down operations for up to two months of the year.

But the ecological costs of not adopting the recommendations are potentially far more calamitous. “Keep in mind that these are engineers talking about biology,” said Allyn Sapa, a recently retired biologist with the U.S. Fish and Wildlife Service who supervised the Missouri River project for more than five years. “They don’t seem to understand that right now we are pushing three species toward the brink of extinction and the current water-flow operations are violating the Endangered Species Act. It seems that the [engineers and the Bush administration] don’t want to hear that. And it’s hard not to think that because our findings don’t match up with what they want to hear, they are putting a new team on the job who will give them what they want.”

A scientist on the disbanded team who is still employed at Fish and Wildlife spoke to Muckraker on condition of anonymity: “What concerns me is not just that the officials seem to be looking for a predetermined answer [on how to manage river flow], but that the replacement ‘SWAT team’ scientists know almost nothing about the Missouri River — whereas our team has worked in this river basin for years.”

Equally calamitous could be the long-term political costs of jettisoning sound science to curry favor with industry, said Eric Eckl, director of media affairs for American Rivers. “This is just the latest chapter in a politically complicated book called ‘War and Peace over the Missouri River.’” The central villain in this novel, said Eckl, is Sen. Kit Bond, R-Mo., a strong supporter of the barge industry who seems convinced that any kind of environmental protections for the river will sabotage his state’s economy. His paranoia has been swallowed whole by the Bush administration: In August, President Bush attended a fundraiser for Bond and declared that no federal agency should govern the flow of the longest river in America.

There are reasons why Bush may find Bond so convincing: While Missouri is hardly the only state with a claim on the eponymous river, which runs from Montana to the Mississippi River, it is a swing state with more electoral votes than any other in the river’s path. And Bush doesn’t need to worry about those other states from a campaign standpoint, as most are solidly Republican.

From a legal and scientific standpoint, however, he might well have to worry. The fish and wildlife agencies of all seven states along the river have written in support of the original team’s findings. American Rivers said that if the new team reaches pro-industry conclusions, it’s more than prepared to go back to court. Senate Minority Leader Tom Daschle, D-S.D., has also publicly questioned the administration’s move and is teaming up with other river-basin senators to call for an investigation into the Bush administration’s decision to sack the scientists. “For over 10 years, the U.S. Fish and Wildlife Service has been saying that the science is on our side, but now the Bush administration seems to want different scientists to reach different conclusions,” Daschle said in a statement. As we’ve seen before, this administration’s M.O. is simple: If you don’t like the science, change the scientist.

Slippery when wetland

That same motto could have been scrawled atop a resignation notice submitted in late October by Bruce Boler, a former U.S. EPA scientist in Florida who quit in protest when the agency accepted a study concluding that wetlands can produce more pollution than they filter. “It’s a blatant reversal of traditional scientific findings that wetlands naturally purify water,” Boler told Muckraker. “Wetlands are often referred to as nature’s kidneys. Most self-respecting scientists will tell you that, and yet [private] developers and officials [at the Corps] wanted me to support their position that wetlands are, literally, a pollution source.”

Why? So that Florida developers could fill in the wetlands to make golf courses (which use enough fertilizer and pesticides to make them among the highest-polluting forms of development). Boler’s scientific judgment that wetlands were not pollution sources but pollution filters — a judgment based on 25 years of research — would not have stopped big-budget golf courses and other projects from going forward, but it would have forced developers to clean up all pollution runoff generated by their projects. By contrast, a finding that wetlands are actually pollution sources would decrease the cleanup burden (and the price tag) for developers.

“Developers were really upset with my findings and protested vehemently to the state and the [Corps], saying that we did not have the authority to raise these objections to their proposed high-dollar developments, some of which spanned nearly 2,000 acres and included many million-dollar homes,” Boler said.

The Corps was upset with Boler’s science, too — so much so that John Hall, chief of its regulatory division in Jacksonville (which is responsible for issuing developer permits), “began referring to me as a ‘loose cannon,’ and during one meeting slammed down a 2-foot-long cannon replica on the conference table to dramatize [this nickname] for me,” Boler said.

Not surprisingly, a developer put a different scientist on the job to come up with an alternative finding that traces nitrogen and phosphate to wetlands themselves — a conclusion that the EPA eventually accepted. It’s true that isolated wetlands do emit trace amounts of nitrogen and phosphate due to the natural decomposition of plant material in their runoff, but according to Boler, it’s absurd to think that these natural toxins compare even remotely in either quantity or toxicity to the nitrogen and phosphate that come from artificial developments. But the replacement scientist found a way to prove just that: “The conclusions [developed by the new scientist] were skewed because he got his data from water-quality samples that were collected in wetlands or ponds next to roads and bridges where surrounding developments discharge pollutants,” Boler said.

According to Jeff Ruch, executive director of Public Employees for Environmental Responsibility, the rate of replacing scientists in government agencies has been unusually high during the Bush administration. “There is always one major development or another that can’t go forward without scientific evaluation,” said Ruch, “and increasingly the scientific expert on which those developments hinge is twisting in the wind. If the scientist gives the inconvenient answer they commit career suicide, and if they give the convenient answer they get promoted.”

Boler clearly didn’t get promoted, but he did land another job at the Interior Department, working at Everglades National Park. In a strange twist, the man who ultimately oversees the National Park System is one Craig Manson. When Muckraker spoke with Boler, he hadn’t heard about the fate of the Missouri scientists, but Ruch had: “He may be jumping from the frying pan into the fire.”

Gag me with a memo

Two weeks ago, Muckraker correctly predicted that the U.S. EPA would eventually drop the backlog of cases against power plants that had violated the New Source Review rules of the Clean Air Act (which the Bush administration gutted earlier this year), thereby allowing the utility industry to avoid an estimated $10 billion to $20 billion of investments in new pollution-filtration technologies. What we didn’t predict was that the EPA would try to muzzle its employees shortly before announcing that it would drop the investigations. The agency barred employees from talking not just to the media and the public, but also to congressional staff members and state and local government officials about the status of enforcement investigations or information related to enforcement actions.

The gag order was issued in an Oct. 28 memo signed by assistant EPA administrator John Peter Suarez and leaked to the staff of the Clean Air Trust. The four-page memo pays lip service to the need to “continue to work openly, fairly, and in accordance with all legal requirements,” but its real message lies in the list of those to whom EPA employees shouldn’t speak, another list of topics they shouldn’t touch, and an exhortation to protect “sensitive and confidential information.”

“This memo starkly demonstrates that those government officials evoking the courage to make the administration’s anti-clean air policies public are operating in an extraordinarily difficult, if not hostile, working environment,” said Frank O’Donnell, director of the trust.

Worse, that memo could make it difficult for states to prosecute these investigations in the EPA’s stead, said O’Donnell, as it blatantly prohibits staff from talking to representatives of state or local governments that don’t enter into a joint prosecution agreement with the feds. The memo, however, does not seem to be intimidating the attorneys general of New York, New Jersey, and Connecticut, who say they are more than ready to take matters into their own hands and pick up the dropped cases against the polluting plants.

Muck it up

Here at Muckraker, we always try to keep our eyes peeled and our ears to the ground (a real physiognomic challenge). The more sources we have, the better — so if you are a fellow lantern-bearer in the dark caverns of the Bush administration’s environmental policy, let us know. We welcome rumors, tips, whistleblowing, insider info, top-secret documents, or other useful tidbits on developments in environmental policy and the people behind them. Please send ‘em along to muckraker@gristmagazine.com.

——————-

For more environmental news, sign up for Grist Magazine’s free e-mail service.