Christie Whitman Has Dirty Hands On EPA Mercury Power Plant Rule

Whitman’s suppression of mercury science as NJ Gov. & EPA Administrator led to 24 years of delay

US Court ridiculed Whitman’s EPA as “deploying the logic of the Queen of Hearts”

Congressional General Accounting Office (GAO) found EPA “distorted” mercury science

“Once again, in the choice between families and polluters, President Bush has left every child behind in order to reward industry and campaign contributors,” said Commissioner Campbell. “This rule betrays the public’s trust by calling for standards far too weak to protect public health and the environment. Moreover, the emissions reductions trumpeted by the EPA in this rule are misleading and inaccurate.” ~~~ DEP Press release

With the US Supreme Court hearing oral arguments on EPA’s power plant mercury emissions rule today, there are national news stories on former Governor and US EPA Administrator Christie Whitman’s actions that were never reported by the NJ press corps.

So, let’s take a closer look at all that, a play in three Acts:

• Act I – Whitman as NJ Governor

As I reported yesterday, the Whitman role in mercury began in 1993, when DEP issued a Mercury Task Force Report that recommended pollution control standards for mercury emissions from garbage incinerators.

But that 1993 DEP Report also recommended that additional emissions standards be developed for coal fired power plants.

And that’s where Whitman comes in.

Whitman assumed office in January 1994. She wasted no time on the mercury issue.

In the first months of her administration, Whitman:

• disbanded the Florio Mercury Task Force
• derailed DEP’s efforts to develop a mercury standard for coal power plants
• suppressed science that found NJ had high levels of mercury in freshwater fish
• reversed Florio’s Solid Waste Plan and garbage incinerator moratorium and resumed promotion of incineration, a major source of mercury emissions

I was forced out of DEP as a whistleblower for leaking the Gov.’s memoranda with DEP Commissioner Shinn that exposed the scientific coverup (see this for links to documents and new reports).

[Note: here is the coverup version of the Philadelphia Academy of Natural Sciences study. Note that it states the study was conducted from 1996-1997.  But note reference to a prior study. The prior 1992-93 study was the one that was suppressed and then rejected by Whitman/Shinn DEP and sent back on false scientific grounds, i.e. to speciate the form of mercury present in fish tissue:

The results of this study are consistent with ANSP 1992-93 mercury in fish research in New Jersey.  …  In addition, the results of the 1994-95 NJDEP 15 lake follow-up study (reported herein) are in agreement with the ANSP 1992-93 study  

The coverup version mischaracterizes the original 1992 -93 study as a “preliminary screening study”, but the 92-93 fish sample size and location (313 fish at 55 sites) were LARGER than the followup study 258 samples from 30 sites.

I still have the corrupt Commissioner Shinn memo to Gov. Whitman and the sworn testimony of DEP Assistant Commissioner from the transcripts of my personnel hearings that proves these points, which I’d be glad to share with an intrepid investigator out there. ~~~ end note]

DEP did not ultimately adopt a mercury emission standard for coal power plants and other major sources until 2006.

Whitman was responsible for a 12 year delay in DEP regulation of mercury emissions, a move that poisoned the environment, fish & wildlife, and led to needless exposure of sensitive populations – like pregnant  women and young children – with untold health and behavioral effects.

• Act II – Whitman as EPA Administrator

Whitman’s actions to distort, suppress and delay mercury science and regulation while NJ Governor were a prequel to her behavior as US EPA Administrator.

We tried – unsuccessfully – to warn the US Senate during Whitman’s confirmation hearings about her NJ record. We worked with US Senate staffers and submitted detailed testimony opposing her confirmation (see page 120 – 126 of the US Senate confirmation transcript):

Exhibit 4—confidential memorandum of DEP Division of Science and Research regarding factual errors made to press by Whitman (March 28, 1994)—Note—sworn testimony of DEP officials supporting conclusions that Whitman and DEP Commissioner Shinn conspired to suppress and downplay the significance of environmental mercury and fish tissue research is available upon request.

Whitman has often dodged accountability for her actions at EPA by blaming Vice President Cheney. But the facts suggest otherwise, that Whitman had a direct and knowing role.

During her US Senate confirmation hearings, regulation of mercury power plant emissions was a major issue of controversy, based in part on our input.

Whitman failed to answer a direct question on how she would regulate mercury emissions from coal fired power plants, given the Clinton Administration’s finding that regulation was necessary –  which proves she knew the mercury power plant rule was a highly controversial issue:

Following confirmation, her actions as EPA administrator echoed her tactics in NJ that we warned about.

The abuses by Whitman’s EPA were so egregious that the Union of Concerned Scientists (UCS) conducted a case study Scientific Integrity In Policymaking and produced this scathing report:

• EPA Ignored Science When Regulating Power Plant Mercury Emissions

UCS documents that Whitman’s actions at EPA exactly followed the pattern in NJ: 1) suppression of science; 2)  leak to press by conscientious professional; 3) critical media reports; 4) followed by reluctant action. UCS report:

… senior Bush officials suppressed and sought to manipulate government information about mercury contained in an Environmental Protection Agency (EPA) report on children’s health and the environment. As the EPA readied the report for completion in May 2002, the White House Office of Management and Budget and the Office of Science and Technology Policy (OSTP) began a lengthy review of the document. In February 2003, after nine months of delay by the White House, a frustrated EPA official leaked the draft report to the Wall Street Journal, including its finding that eight percent of women between the ages of 16 and 49 have mercury levels in the blood that could lead to reduced IQ and motor skills in their offspring.[3]

The finding provides strong evidence in direct contradiction to the administration’s desired policy of reducing regulation on coal-fired power plants and was, many sources suspect, the reason for the lengthy suppression by the White House. On February 24, 2003, just days after the leak, the EPA’s report was finally released to the public.[4] Perhaps most troubling is the suspicion that the report may never have surfaced at all had it not been leaked to the press.

Whitman did not resign until June 27, 2003, so this was all under her watch.

But, as UCS reports, it gets even worse – look at what went on at EPA under Whitman’s leadership:

In a more recent development, the new rules that the EPA finally proposed for regulating power plants’ mercury emissions were discovered to have no fewer than 12 paragraphs lifted, sometimes verbatim, from a legal document prepared by industry lawyers.[5] When challenged, EPA officials contended that the language crept into their proposed rules “through the interagency process.” But Robert Perciasepe, who headed the EPA air policy office during the Clinton administration, called the wholesale use of industry language “inappropriate.” As Perciasepe told a Washington Post reporter, “The regulations are supposed to be drafted by the staff—the people in the science program and regulatory branches.”[6]

Drawing upon interviews with no fewer than five current career employees, reporters at the Los Angeles Times exposed in detail the process that led to the proposed mercury regulations. According to these and other sources, political appointees at the EPA completely bypassed agency professional and scientific staff as well as a federal advisory panel in crafting the proposed new rules.[7]

Bruce C. Buckheit, who retired in December 2003 as director of EPA’s Air Enforcement Division after serving in major federal environmental posts for two decades, says that his enforcement division was not even allowed to review the mercury regulations prior to their release. As Buckheit puts it, “the new mercury rules were hatched at the White House; the Environmental Protection Agency’s experts were simply not consulted at all.”[8]

In particular, EPA staff members say they pointed out the fact that comparative scientific studies of the effects of the proposed rules were required by EPA procedure. But these EPA staffers contend that they were explicitly told by Jeffrey R. Holmstead, head of EPA’s Office of Air and Radiation, that such studies would not be conducted partly because of “White House concern.”[9] Buckheit and other EPA veterans say they cannot recall another instance when the agency’s technical experts were so thoroughly shut out of the process in developing a major regulatory proposal. According to Buckheit, the incident is representative of “a degree of politicization of the work of the Environmental Protection Agency” by the Bush administration “that goes beyond anything I have seen in my career in government.”[10]

In the wake of these serious allegations, EPA Administrator Michael Leavitt reportedly ordered additional studies of the effects of the proposed mercury rule. Administrator Leavitt also said information related to media reports on the agency’s inclusion of industry-drafted language in its proposed rule had been forwarded to the EPA’s inspector general for possible investigation.[11]

In February 2005, the EPA’s own inspector general reported that agency scientists had been pressured to change their scientific findings in order to justify the Administration’s industry-friendly rules.[12] The report recommended that additional analysis was needed before the rule was finalized. Days later, a Government Accountability Office report found that the EPA had distorted its analysis of the health impacts of mercury on brain development in children and fetuses.[13]

Despite these warnings, and to the great dismay of scientists and public health professionals, the EPA issued its final rule on March 15, 2005 without revisiting the egregiously manipulated and distorted science behind the rule.

After the mercury rule was finalized, the Washington Post reported that EPA officials purposefully omitted the results of a Harvard study—paid for by taxpayer dollars—which showed that the costs of mercury pollution and the benefits of a regulation stronger than the administration’s proposal were higher than previously thought.[14]

Update: On February 8, 2008, the U.S. Court of Appeals for the D.C. Circuit found that the EPA had illegally violated the Clean Air Act’s requirements of significant and timely reductions in toxic air pollution, including mercury, from the nation’s coal-fired power plants.[15] The EPA had been unpersuasive in showing that the levels of toxic emissions from power plants allowed by the rule would not have adverse health and environmental effects.[16] In response to this decision, the EPA will likely develop MACT standards to control mercury emissions.[17]

Congress investigated the matter and the US General Office of Accounting issued a scathing Report (journalists can read the Washington Post’s coverage of that GAO Report).

EPA’s own Inspector General also investigated and issued a critical report on EPA’s multiple failures in a highly politicized rule-making process:

• Additional Analyses of Mercury Emissions Needed Before EPA Finalizes Rules for Coal-Fired Electric Utilities 

• Act III – Beyond Irony – Events Come Full Circle

And to top it all off and tie this history up with a bright red ironic bow, an incredulous federal judge ruled, in a case filed by New Jersey (see: New Jersey v. Environmental Protection Agency), that Whitman’s EPA had engaged in logic of the Queen of Hearts:

The court’s attitude toward EPA’s creative attempts to justify its reading of section 112 went beyond skepticism to incredulity. The court described EPA’s argument for finding ambiguity in the delisting requirement as “deploy[ing] the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of section 112(c)(9).” A comparison to the Queen of Hearts should be insulting to anyone familiar with the Queen’s impetuous disregard for the rule of law in Lewis Carroll’s Alice’s Adventures in Wonderland.

Perhaps the court’s hostility was rooted in frustration with the decidedly political nature of EPA’s maneuvering. In less than five years, EPA had performed a complete about-face from its 2000 Finding. Its drastic change in approach reflected the policy of the George W. Bush Administration to favor market-based regulatory systems that limit costs to industry, sometimes at the substantial price of greater risk of harm to the population.

The Clinton Administration legally teed the mercury rule making upo in 2000. Whitman assumed the helm at EPA in 2001.EPA didn’t issue a final mercury rule that is now before the Supreme Court until 2012.

So Whitman added another 12 years of delay at EPA, the same delay she was responsible for in NJ.

As then NJ DEP Commissioner Brad Campbell, a man Gov. Christie just attacked as a “know-nothing failed former DEP Commissioner”, said at the time the NJ lawsuit against EPA was filed:

“Once again, in the choice between families and polluters, President Bush has left every child behind in order to reward industry and campaign contributors,” said Commissioner Campbell. “This rule betrays the public’s trust by calling for standards far too weak to protect public health and the environment. Moreover, the emissions reductions trumpeted by the EPA in this rule are misleading and inaccurate.”

You really can’t make this stuff up – history is a bitch.