# GAO reveals Bush-Cheney Energy policy for sale **URL:** \ **Category:** The BBQ Pit\ **Created:** [August 26, 2003, 12:54pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728 "2003-08-26T12:54:32Z")\ **Posts on this page:** 15\ **Page:** 3
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [August 27, 2003, 1:30pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/41 "2003-08-27T13:30:31Z")
> [@](#): > > \*Originally posted by Cheesesteak \* > **C’mon mhendo, I’m trying to be reasonable here. The OP, and many others implied that national policy is being sold. Implying that there are illegal and unethical shenanigans should at least require a shred of evidence in that direction. What we have instead is the administration listening to one side over the other. That is NOT criminal, and it is NOT ‘selling’ policy.** I’m sure you are trying to be reasonable; it just seems to me that your conception of what constitutes reasonable policy-making procedure is far too generous to the administration, and far to dismissive of the needs of the nation as a whole. As **elf** has pointed out, we know that these energy companies not only have close ties to members of this administration due to past employment and business dealings, we also know that they contributed large amounts of cash to them during election campaigns. While everyone knows that, for better or worse, large contributions buy you access to politicians, people still generally like to think that said politicians will at least take into account the needs and arguments of other citizens and their representative groups when making policy. I think there’s a good chance that none of what happened here was illegal. The laws are so lax on issues like this that it’s completely possible that no law was broken. It’s all probably just business as usual. But, contrary to your implication, illegal and unethical are not the same thing. Many people are of the opinion that “listening to one side over the other,” as you put it, is in itself unethical when you _only_ listen to that one side, and when you have so many personal and financial ties to that same side. What would be your reaction, and, more importantly, what do you think would be the media and the nation’s reaction, if a Democratic administration and/or a Democrat-dominated Congress put forth a wage policy calling for a 25% increase in the minimum wage, with two weeks more holiday every year, and did so after consulting _only_ with labor unions? > [@](#): > > **We KNOW already that they favor the oil/energy companies. Do you really think that some meetings with environmentalists or academics is going to make a difference? Really now, am I to believe that the anti-Bush crowd here thinks they’d CHANGE policy away from the companies because of some meetings?** Interesting. So instead of hoping for a situation in which the administration might actually make policy with all Americans in mind, we just throw up our hands and say “Hey, we know they’re in bed with the energy companies, but whatareyagonnado?” You make no personal judgement on whether this special relationship is a good thing or not. If you think it is, and that we only benefit when energy companies and politicians are so closely connected, perhaps you’d like to explain why? And if it isn’t a good thing, then what’s wrong with trying to change the situation, or at least expose the possible detrimental effects that it has on the policy-making process. > [@](#): > > **What matters, what counts, is the policy they set forth. If that policy is flawed, you slam them for it, if it works, you applaud them for it. Given a choice between GOOD policy gotten the wrong way and BAD policy gotten the right way, which would you choose?** See, this is where i most seriously disagree with you. This is the same attitude that says that an illegal war is acceptable if the outcome is right, or that violating a suspects right is acceptable as long as you get the confession. Despite all your claims to the contrary, process MATTERS in the policy-setting arena, because we live in a society where our elected representatives are, ideally, responsive to and considerate of the needs of the people. We realize, of course, that no decision is likely to make everyone happy, but we ask that politicians at least make a good faith effort to implement policies that are broadly beneficial. Given that every policy, no matter how good or how bad, will be criticized by some groups, it behooves politicians to do everything they can to justify their policy decisions. And i don’t just mean rhetorically. They should, when criticized about a particular policy issue (such as the effect of energy policy on the environment, for example) be able honestly to say that they have taken such things into consideration, and they should be able to present evidence as to why certain claims or arguments were rejected or modified. Finally, your argument fails to take into account that, if a policy such as this _is_ flawed, then one of the reasons for the flaws may be the policy-making process itself. If we find that the current administration’s energy plan is indeed flawed, don’t you think that a cause of that might be the fact that the administration took advice only from those who stood to make a buck off the issue? Take the wage/union hypothetical i gave above. Don’t you think that if such a policy sent America into an inflation spiral and resulted in thousands of layoffs, the reason might be that the government failed to take into account the contributions of business people, economists, other experts? Policy and process, whether you like it or not, are inextricably linked. > [@](#): > > \*\*Please note that I’m not saying their policy is good or bad, just making a point. \*\* Neither have i drawn any conclusion about the policy itself; just making a point. ---
**Author:** ![Telcontar](https://avatars.discourse-cdn.com/v4/letter/t/3bc359/32.png) [@Telcontar](https://boards.straightdope.com/u/Telcontar)\ **Post date:** [August 27, 2003, 1:44pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/42 "2003-08-27T13:44:39Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*_Egotist te absolvo_. Go, and sin no more. \*\* my latin is a bit rusty, but isn’t it “Ego te absolvo”? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 27, 2003, 4:12pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/43 "2003-08-27T16:12:28Z")
Tel: I was thinking the same thing. Egotist is English. _Ego_ is Latin. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 27, 2003, 4:32pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/44 "2003-08-27T16:32:02Z")
_Ego_ is also latin… ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [August 27, 2003, 10:12pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/45 "2003-08-27T22:12:11Z")
Quite so. _Ego te absolvo_, I absolve you (I won’t get into declensions here) “Egotist” is a description often applied to persons quite full of themselves, smug, prideful, etc… It will no doubt surprise you to hear that such a description has been applied to such paragons of humble modesty as myself! No, really! Hard to believe, I know, but there you have it. Hence the joke, the egotist absolves you. There now! Isn’t it a much better joke after a thorough vivisection? (Too hip for the room. Story of my life.) ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [August 27, 2003, 10:17pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/46 "2003-08-27T22:17:29Z")
Does the Executive branch have the authority to investigate how Legislator’s make their policy decisions? Ask for memos, meeting transcripts etc. ---
**Author:** ![elf6c](https://avatars.discourse-cdn.com/v4/letter/e/c57346/32.png) [@elf6c](https://boards.straightdope.com/u/elf6c)\ **Post date:** [August 28, 2003, 12:55pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/47 "2003-08-28T12:55:59Z")
Another reason why people are dubious about Cheney and closed door deals: [http://www.washingtonpost.com/wp-dyn/articles/A56429-2003Aug27.html](http://www.washingtonpost.com/wp-dyn/articles/A56429-2003Aug27.html) > [@](#): > > Halliburton, the company formerly headed by Vice President Cheney, has won contracts worth more than $1.7 billion under Operation Iraqi Freedom and stands to make hundreds of millions more dollars under a no-bid contract awarded by the U.S. Army Corps of Engineers, according to newly available documents. > > The size and scope of the government contracts awarded to Halliburton in connection with the war in Iraq are significantly greater than was previously disclosed and demonstrate the U.S. military’s increasing reliance on for-profit corporations to run its logistical operations. Independent experts estimate that as much as one-third of the monthly $3.9 billion cost of keeping U.S. troops in Iraq is going to independent contractors. Any guess where most of their political connections are? No-bid contracts for Cheney’s ex-company. :dubious: Gee I wonder who gets these plum no-bid deals? > [@](#): > > But, according to Rep. Henry A. Waxman (D-Calif.) and other critics, the Iraq war and occupation have provided a handful of companies with good political connections, particularly Halliburton, with unprecedented money-making opportunities. “The amount of money [earned by Halliburton] is quite staggering, far more than we were originally led to believe,” Waxman said. “This is clearly a trend under this administration, and it concerns me because often the privatization of government services ends up costing the taxpayers more money rather than less.” Hold your nose and click the link. ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [August 28, 2003, 4:47pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/48 "2003-08-28T16:47:35Z")
OK, I have some more time now, and since my comment was ignored, I’m going to be a pain about this. > [@](#): > > \*Originally posted by elf6c \* > \*\*The U.S. Environmental Protection Agency lacked hard data to support its revision last year of clean-air rules in favor of utility plants and oil refineries, the General Accounting Office said. > > The GAO delivered its report to Sens. Joseph Lieberman (D-Conn.) and James Jeffords, a Vermont Independent, who requested the study. “This independent report reinforces what nonpartisan experts have been saying for months - that the Bush administration’s rollbacks of the Clean Air Act have no analytical basis,” said a statement from presidential candidate Lieberman. > > The report said the EPA “relied primarily on anecdotal information from the industries most affected” in rewriting the rules, a step suggested by Vice President Dick Cheney’s 2001 energy task force.\*\* Please describe for me in detail exactly how the Bush Administration is “rolling back” the CAA without legislative action by Congress. And please describe for me in detail how this has “no analytical basis”. Please also desribe how it “effectively repeals the CAA” (from your cited source). Furthermore, your next comment indicates that you believe a cover up is occuring on this specific issue, since it’s in your same post. > [@](#): > > \*Originally posted by elf6c \* > **How can they possibly cover this issue up- simple:** Yet, you show no evidence whatsoever of an actual cover up on this issue of maintenance upgrades to existing pre-1977 vintage power plants (which is the actual issue, if one actually reads the cites and knows the background). In fact, all the GAO report says is that further data was needed (in its opinion). It does not allege a cover up on this issue, nor is there mention of “secrecy” with repsect to the meetings concerning this specific rule. Your second cite does not concern the rulings on maintenance upgrades and repairs to existing plants at all. Nor does your cite give evidence as the exactly why the GAO feels that the information collected is incomplete, lacking, incorrect, biased, or otherwise not valuable. So…what’s the truth here? Why did you feel like calling this issue out? ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [August 28, 2003, 5:17pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/49 "2003-08-28T17:17:41Z")
Here’s another example of an environmental lobbyist relying on the technical ignorance of the populace to try to stir up more hatred for the Bush Administration’s policies on energy and the environment: From: [http://www.cnn.com/2003/ALLPOLITICS/08/27/clean.air.ap/index.html](http://www.cnn.com/2003/ALLPOLITICS/08/27/clean.air.ap/index.html) > [@](#): > > “It’s an accounting gimmick that eliminates any possibility of pollution controls,” said John Walke, director of Natural Resources Defense Council’s clean air program. “It’s a total disaster. It’s the effective repeal of this clean air program, through illegal administrative means.” This is grossly misleading for the following reasons: 1. “Accounting gimmick”? No, that’s not inflammatory at all. 2. Nothing eliminates the possibility of future regulatory or policy changes. 3. The statement “pollution controls” ignores such things as the forthcoming mercury regulations, which will not exempt these units. 4. This does not impact State, regional, and city emissions limits, which quite a large number of these facilities are subject to. 5. It’s a “total disaster”? Really? The emissions limits for these plants **have not changed**. Let’s get that through people’s heads first, since people are so busy dripping with hatred over Bush that they don’t want to hear the facts. And the fact is that the limits have not changed. The plants have only been allowed to do maintenance which _may_, repeat, _may_ increase the generating capacity of the unit. That is, the output. And in a multitude of cases (ones I work on nearly every fucking week), it reduces the pollution of the unit on a per-MW basis. This also conveniently brushes under the rug the simple **scientific fact** that most plants have serious limiting factors in their design that only allow for minor increases in their output, without essentially tearing the boiler down and re-building it. But hey, when the average person is looking at a VCR flashing “12:00”, it’s OK to brush facts aside, since it’s not likely the vast populace will call them on it. And if someone like me does, one can brush me aside as a “tool of the industry” and refer to my “sleaze”. Bravo. :rolleyes: 1. It’s an effective “repeal” of the “clean air program”? This really, combined with the rest, should be called “libel” if it was directed at anyone else, as it’s a complete and total lie. 2. “Illegal administrative means”? Really? The CAA, like nearly ALL legislation of its type, relies on the Executive Branch to determine the way to enforce the legislation. I suppose the Clinton Administration’s action on “low-NOx burners” and its interpretations of gun control legislation was also illegal then? Because, come on, let’s be fair here. Unless the goal is really to just Hate Bush, and damn the facts. Jesus Fuck, there are very legitimate reasons to be concerned about and to flame the Bush Administration over energy and the environment. This isn’t one of them. It’s been discussed at-length here before, and seeing it come up again with the same sort of cited lies as last time is just disgusting and disheartening. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [August 28, 2003, 7:48pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/50 "2003-08-28T19:48:53Z")
> [@](#): > > …Jesus Fuck, there are very legitimate reasons to be concerned about and to flame the Bush Administration over energy and the environment… For instance? No, seriously. If anybody is in a position to know where the bodies are buried, an unholy queen of the undead must be in a prime position. I am intriqued. What, in your estimation, is the worst example, and why? ---
**Author:** ![GaWd](https://avatars.discourse-cdn.com/v4/letter/g/f08c70/32.png) [@GaWd](https://boards.straightdope.com/u/GaWd)\ **Post date:** [August 28, 2003, 8:35pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/51 "2003-08-28T20:35:03Z")
Just one example- The recent rollback/easing of the clean air act. I’d say it was at least a “concern”. Sam ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [August 28, 2003, 8:52pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/52 "2003-08-28T20:52:27Z")
There has been no “rollback” of the Clean Air Act. This was explained. > [@](#): > > \*Originally posted by elucidator \* > \*\*For instance? No, seriously. If anybody is in a position to know where the bodies are buried, an unholy queen of the undead must be in a prime position. I am intriqued. What, in your estimation, is the worst example, and why? \*\* I don’t think it’s anything different that what others have posted ad nauseum. CAFE. I feel that not increasing CAFE for light trucks and SUVs, as well as for automobiles, is a big deal. I don’t think that this makes the current Administration worse than Clinton’s, but certainly no better, and they’re missing a prime opportunity. Probably, CAFE and not increasing it (and being opposed to further increases) will have the largest negative impact. I feel that drilling in the ANWR is a stupid-assed thing to push, due to the relatively low benefit. However, I do think feel as well that the alarmist statements made about environmental “armageddon” should drilling be done there are silly and ignorant. CO2: I think the Administration should work to meet Kyoto-level accords, and not walk away from them as they have, but also think that they should do this contingent on the developing nations being restricted to the same level of emissions as developed nations. I feel that fusion and renewables research is highly, woefully underfunded, and will continue to be so for some time. I see a bunch of missed opportunities or trend to conduct “business as usual” as the greatest problems. ---
**Author:** ![GaWd](https://avatars.discourse-cdn.com/v4/letter/g/f08c70/32.png) [@GaWd](https://boards.straightdope.com/u/GaWd)\ **Post date:** [August 28, 2003, 9:10pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/53 "2003-08-28T21:10:07Z")
> [@](#): > > There has been no “rollback” of the Clean Air Act. This was explained. Well, why don’t you tell me what your take is on it. Everything I’ve read about it indicates a loosening of restrictions regarding new installations of equipment in regulated plants. Thanks, Sam ---
**Author:** ![GaWd](https://avatars.discourse-cdn.com/v4/letter/g/f08c70/32.png) [@GaWd](https://boards.straightdope.com/u/GaWd)\ **Post date:** [August 28, 2003, 9:45pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/54 "2003-08-28T21:45:09Z")
Well, shit. I guess I should have read your last post a bit more carefully. I did realize that the “rollback” was on the older plants only. Sam ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [August 28, 2003, 9:51pm UTC](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728/55 "2003-08-28T21:51:12Z")
OK, let’s talk “rollback”, shall we? This should be fun…and please, I am a bit sarcastic in this, GaWd, but it’s not directed towards you or any Doper here, so please forgive the tone. The root source for this alleged “rollback” is what is contained in \*ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [FRL-7414-6; RIN 2060-AK28; Electronic Docket OAR-2002-0068; Legacy Docket A-2002-04] “Prevention of Significant Deterioration (PSD) and Non-attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion”\* Now, since I’m not only the only person here who has read that entire document, but am likely the only person here who ever will, I’ll provide a link to a summary of “myth versus fact” from the EPA itself. [http://www.epa.gov/nsr/nsrmythfact.pdf](http://www.epa.gov/nsr/nsrmythfact.pdf) From the above: > [@](#): > > (4) MYTH: EPA is making regulatory changes that effectively rewrite the Clean Air > Act. > > FACT: The changes that we are making to the NSR rules **do not change the Clean Air > Act at all. All the changes are fully authorized under and are consistent with the Act.** (bolded added as emphasis to fight ignorance) > [@](#): > > (6) MYTH: Because some of the final rule changes allow facilities to freeze their > emission levels for 10 years, EPA’s changes to the NSR program will not lead to air > quality improvements. > > FACT: This claim is simply untrue. As noted above, EPA’s review shows that the > changes made by the final rule will provide a net benefit to air quality by removing > current NSR barriers to environmentally beneficial projects and by removing incentives > in the current NSR rules to keep pollution at high levels. > > It is important to understand that **the NSR program was never designed to require > facilities to reduce existing levels of pollution** – that is not its purpose. NSR review is > designed to be triggered when a new facility is being built or when one is undergoing a > major modification that could significantly increase emissions. NSR is a permitting > process to review and control emissions increases, not a tool to require reductions. (self-serving Bush Admin propaganda sentence removed from the end, and bolding added for emphasis) > [@](#): > > (7) MYTH: EPA’s changes to the NSR program will allow new sources to be built > without installing pollution controls. > > FACT: EPA’s changes to the NSR program would not affect new sources at all, and new > sources account for a large majority of NSR permits issued every year. **Neither the final > rule nor the proposed rule being announced by EPA would change NSR requirements for > new sources.** > > (8) MYTH: EPA’s changes to the NSR program will pre-empt state programs. > > FACT: The changes **do not pre-empt any state program more stringent than the federal > program.** Rather, under the Clean Air Act, states are specifically authorized to establish > their own programs that may be more stringent than federal law. **This continues to be the > case.** (once again, bolding added) OK, so what drove the Bush Administration to do this? Well, let me throw out a reason that doesn’t involve Konspiracies of Evil Oilmen and Evil Republicans wanting to stomp their jackboots on the neck of the poor and downtrodden. Those of us in the industry (the same “experts” who are sneered at and called “sleaze”) have been watching this quaint little case go through the courts for some time. It is regarding _UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 4, IN THE MATTER OF TENNESSEE VALLEY AUTHORITY DOCKET NO. CAA-2000-04-0008 ORDER [42 U.S.C. §§7413 and 7477]_ Wherein the EPA issued an order claiming that maintenance improvements at the Paradise, Colbert, Widows Creek, Allen, Cumberland, Bull Run, and John Sevier coal power plants were subject to New Source Review under the CAA and its Amendments. TVA naturally didn’t care for that, and took the EPA to court. This thing has been winding through the court for some time, and a lot of people have been waiting to see what the result would be (in a similar manner to the coal tailing hazardous waste issue in the Appalachian mountain region). In anticipation of the result, and the in an effort to clear up the legal mess this has turned into, the EPA has been developing its revision of their Rules on NSR and upgrades since last year. However, this has recently come to a head in the mainstream press which the cow-like masses read due to the following action. On June 24, 2003, the US Court of Appeals for the 11th Circuit ruled on the case. Here is the cite: > [@](#): > > No. 00-15936 > > * * * > > EPA No. 00-00006-CAA-2000-04-008 > TENNESSEE VALLEY AUTHORITY, > Petitioner, > versus > CHRISTINE TODD WHITMAN, Administrator, United > States Environmental Protection Agency, > UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, > Respondents. > > * * * > > No. 00-16234 > > * * * > > EPA No. 00-00006-CAA-2000-04-008 > ALABAMA POWER COMPANY, > Petitioner, > versus > CHRISTINE TODD WHITMAN, Administrator, United > States Environmental Protection Agency, > UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, > Respondents. > 2 > > * * * > > No. 00-16235 > > * * * > > EPA No. 00-00006-CAA-2000-04-008 > TENNESSEE VALLEY PUBLIC POWER ASSOCIATION, > MEMPHIS LIGHT, GAS & WATER DIVISION, et al., > Petitioners, > versus > CHRISTINE TODD WHITMAN, Administrator, United > States Environmental Protection Agency, > UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, > Respondents. > > * * * > > No. 00-16236 > > * * * > > EPA No. 00-00006-CAA-2000-04-008 > DUKE ENERGY CORPORATION, > Petitioner, > versus > CHRISTINE TODD WHITMAN, Administrator, United > States Environmental Protection Agency, > UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, > Respondents. > > * * * > > Petitions for Review of a Final Order of > the United States Environmental Protection Agency > > * * * > > (June 24, 2003) > Before TJOFLAT, BARKETT and WILSON, Circuit Judges. What was the result of this? The three judges ruled unanimously in favour of TVA. Note the following key points in their decision process. > [@](#): > > Although the CAA empowers the EPA Administrator to issue ACOs (_Administrative Compliance Orders – Una_) that have the status of law, **we believe that the statutory scheme is unconstitutional to the extent that severe civil and criminal penalties can be imposed for noncompliance with the terms of an ACO.** Accordingly, ACOs are legally inconsequential and do not constitute final agency action. We therefore decline to assert jurisdiction over TVA’s petition for review pursuant to 42 U.S.C. § 7607(b)(1).4 The EPA must prove the existence of a CAA violation in district court; until then, TVA is free to ignore the ACO without risking the imposition of penalties for noncompliance with its terms. (emphasis added, abbreviation explained) Note that little word that people like to brush under the rug – **unconstitutional**. The Clinton Administration EPA engaged, according to the court, in an **unconstitutional act** against TVA. Why this isn’t being universally decried is beyond me. Note also from Page 8 of their ruling: > [@](#): > > The problem with ACOs stems from their injunction-like legal status coupled with the fact that they are issued without an adjudication or meaningful judicial review. First, ACOs are issued without any sort of adjudication that a party has violated the CAA. Like the decision to pursue a civil enforcement action in district court and the decision to refer a potential criminal violation to the Attorney General, the decision to issue an ACO is made “on the basis of any information available to the Administrator.” 42 U.S.C. § 7413(a)(1). That is, the Administrator need only have a staff report, newspaper clipping, anonymous phone tip, or anything else that would constitute “any information.” The Scenarios put forth by the court on pp10-12 are somewhat scary as well. Note this gem of a finding: > [@](#): > > [I[Second\*, discovery was effectively unavailable: TVA was not entitled to any compulsory process and therefore had to utilize only those documents that the EPA voluntarily > divulged; TVA was not allowed to take several depositions; and the EPA made available its hefty privilege log only after the hearing concluded. _Third_, the testimony that was allowed at the hearing was again “limited” at the behest of the Administrator. _Fourth_, the proceeding was rushed, giving TVA little time to prepare its defense. TVA was given less than eight weeks of advance notice of the hearing, and the basis of EPA’s case was not divulged until three weeks before the hearing. The reasoning behind EPA’s finding that TVA’s projects caused emissions increases were not divulged at all prior to the hearing. Moreover, TVA was entitled to no more than two weeks to identify witnesses in a regulatory matter spanning over twenty years. TVA was not granted any time extensions to conduct discovery and prepare its case. _Fifth_, the EAB and ALJ manufactured the procedures they employed on the fly, entirely ignoring the concept of the rule of law. It’s pretty clear they didn’t like the way the Clinton Administration EPA handled themselves. But let’s skip forward to Page 50: VI: Conclusion > [@](#): > > The Clean Air Act **is unconstitutional to the extent that mere noncompliance with the terms of an ACO can be the sole basis for the imposition of severe civil and criminal penalties**. Therefore, ACOs lack finality because they do not meet prong two of the Bennett test. We thus conclude that courts of appeals lack jurisdiction to review the validity of ACOs. The EPA must do what it believes it has been required to do all along – namely, prove the existence of a CAA violation in district court, including the alleged violation that spurred the EPA to issue the ACO in this case. > > PETITIONS DISMISSED. (emphasis added) Funny how not a single source I could find in the mass media online – not even the Atlanta Journal Constitution – chose to report that juicy little tidbit. Given this ruling showing clear problems in the way in which ACOs were being applied to anything that could be considered an NSR issue, it was pretty clear that clarification of the NSR and upgrade issue was a good thing. I can easily talk for hours about the difference between maintenance upgrades and New Source creations under the law. That’s really the next bit, and, it’s important to note, **the 11th Circuit did not rule on the applicability nor the constitutionality of the application of NSR to maintenance upgrades**. The real debate between that can be found in the _[FRL-7414-6; RIN 2060-AK28; Electronic Docket OAR-2002-0068; Legacy Docket A-2002-04], “Prevention of Significant Deterioration (PSD) and Non-attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion”_ text. It’s a 176-page text (and I’ve read the whole thing until my eyes bled), so I’ll point out Section III, subpart B for clarity (Page 25) > [@](#): > > We proposed to exclude the replacement of existing equipment with identical or functionally equivalent components. As we observed at the time of our RMRR (routine maintenance, repair and replacement - Una) proposal, we believe that most identical and functionally equivalent replacements are necessary for the safe, efficient and reliable operations of virtually all industrial operations; are not of regulatory concern; will improve air quality (e.g., by decreasing startup, shutdown, and malfunctions); and thus should qualify for the ERP under the RMRR exclusion. We believe industrial facilities are constructed with the understanding that certain equipment failures are common and ongoing maintenance programs that include replacing components in order to maintain, restore, or enhance the reliability, safety, and efficiency of a plant are routine. > > Conversely, delaying or foregoing maintenance could lead to failure of the production unit and may create or add to safety concerns. When such equipment replacement occurs, the replaced component is inherent to both the design and purpose of the process unit, and there is no reason to believe that such activity will cause an emissions increase. Moreover, most of these replacements are conducted at industrial facilities to maintain proper operations and to implement good engineering practices. > > For example, if a pump associated with a distillation column fails and is replaced with an identical new pump, we believe that such a common activity is and should be considered an excluded replacement. It is not a “change” to the plant, since it merely maintains the plant as designed. Instead, it is the type of activity expected to occur to maintain the plant. Therefore, we think replacements like this properly fall within the exclusion for “routine maintenance, repair and replacement.” > > We also believe treating them in this fashion is consistent with the basic policies of the CAA: that existing plants are subject to major NSR permitting requirements only when they engage in an activity that constitutes an opportune time to install state-of-the-art pollution control equipment. We also believe that this principle extends beyond the replacement of equipment with identical equipment. When equipment is wearing out or breaks down, it often is replaced with equipment that serves the same purpose or function but is different in some respects or improved in some ways in comparison with the equipment that is removed. > > To continue with the example used above, if, instead of replacing the worn out distillation column pump with an identical one, the owner or operator replaced it with a new and improved model, it does not seem to us that this changes the fundamental reasons for treating that replacement as likewise within the scope of “routine maintenance, repair and replacement.” > > This is particularly true since technology is constantly changing and evolving. When equipment of this sort needs to be replaced, it often is simply not possible to find the old-style technology. Owners or operators may have no choice but to purchase and install equipment reflecting current design innovations. Even if it is possible to find old-style equipment, it seems unnecessary and undesirable to generally construe NSR permitting requirements in a manner that is bound to deter owners or operators from using the best equipment that suits the given need when replacements must be installed. The limiting principle here is that the replacement equipment must be identical or functionally equivalent and must not change the basic design parameters of the affected process unit (e.g., for electric utility steam generating units, this might mean heat input and fuel consumption specifications). We also believe, however, that we need not and should not treat efficiency as a basic design parameter as we do not believe NSR was intended to impede industry in making energy and process efficiency improvements. We believe such improvements, on balance, will be beneficial both economically and environmentally. This treatment of efficiency should address the concern and perception that the NSR program serves as a barrier to activities undertaken to facilitate, restore, or improve efficiency, reliability, availability, or safety of a facility. > > Today’s rule does not distinguish between the replacement of components that are expected to be replaced frequently or periodically and the replacement of components that may occur on a less frequent or one-time basis. It likewise does not distinguish between the replacement of larger and smaller components, instead requiring greater scrutiny if the replacement in question is part of an activity that exceeds 20 percent of the replacement value of the process unit. Our decisions on these points are derived from reflection on the function of the exclusion in the context of the CAA. As explained above, and as described more fully in our legal analysis set forth below, we do not believe that application of the major NSR program to “modified” plants is designed to require existing plants that are continuing to operate in a manner consistent with their original design to curtail their rate of production or hours of operation beyond limitations set forth in their existing permits. We likewise do not believe that the program is designed to discourage plants from replacing parts or components so as to preserve their ability to produce at that rate. Rather, we believe Title I of the Clean Air largely leaves to State and local permitting authorities whether to require adjustments in the operations of those plants in order to reduce emissions to the degree needed to attain or maintain national air quality standards, and how to weigh the trade-offs such adjustments may produce in terms of potential economic impacts and loss of productivity. Instead, we believe the central function of the application of major NSR permitting requirements to “modifications” is to assure that plants install state-of-the-art pollution controls. We recognize that on these points, the approach taken by our final rule thereby differs in some respects from the multi-factor, case-by-case approach we have been using in identifying RMRR, and particularly from some of our applications of that test to certain equipment replacements. We believe, however, that this adjustment in our approach is fully warranted for the reasons outlined above, and described more fully in our legal analysis below. > > The following examples of functionally equivalent replacements under today’s rule include: > • Replacing worn out pipes in a chemical process plant with pipes that are constructed of different metallurgy (e.g., to help reduce corrosion, erosion, or chemical compatibility problems). > > • Replacing an analog controller with a digital controller, even though a similar analog controller can still be purchased and even though the new controller would allow for more precise control. A good example was presented to us by the forest products industry during our review of the NSR program’s impacts on the energy sector. A company in that sector needed to replace outdated analog controllers at a series of six batch digesters. In this case, the original controllers were no longer manufactured. The new digital controllers, costing approximately $50,000, are capable of receiving inputs from the digester vessel temperature, pressure, and chemical/steam flow. The new controllers would have more precisely filled and pressurized digesters with chips, chemicals, and steam, thus bringing a batch digester on line faster. > > • Replacing an existing mill or pulverizer (e.g., grinding clinker in a cement factory or coal for a boiler) with a new one of a different type because both new and old equipment serve the same purpose (even if the characteristics of the ground material would be different before and after the replacement). > > • Replacing existing spray paint nozzles with new ones that might atomize the spray better or have a higher transfer efficiency because the “before” and “after” nozzles serve the same function. I’d be happy to go through that in detail. But perhaps I’ve jabbered enough at this point. 🙂 (Note to Moderators: I have checked that all sources quoted are in fact in the public domain - Una) [Previous page](https://boards.straightdope.com/t/gao-reveals-bush-cheney-energy-policy-for-sale/197728.md?page=2)