The Environmental Promise Obama Completely Abandoned

Five years ago, the administration vowed to regulate coal ash, a toxic power-plant byproduct. Green groups are still waiting.

An aerial image of the Kingston ash spill from Dec. 23, 2008. 
National Journal
Patrick Reis
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Patrick Reis
Nov. 17, 2013, 4 p.m.

Be­fore Pres­id­ent Obama had even taken the oath of of­fice, his ad­min­is­tra­tion was prom­ising to pro­tect the pub­lic from tox­ic coal waste pro­duced by power plants. But well in­to the pres­id­ent’s second term — and nearly five years after Amer­ic­ans learned of the dangers of coal ash after a massive spill dev­ast­ated a Ten­ness­ee town — that pledge is a green dream that is at least de­ferred, and quite pos­sibly dead.

The Obama ad­min­is­tra­tion has all but hal­ted its re­view of the ex­ist­ing policies for stor­ing coal ash, and al­though en­vir­on­ment­al­ists are eagerly await­ing a fi­nal an­swer on the is­sue, they’re not op­tim­ist­ic. While they’re loathe to ad­mit it pub­licly, en­vir­on­ment­al ad­voc­ates will privately con­cede they no longer ex­pect the ad­min­is­tra­tion to is­sue the tough rules they’ve long sought.

En­vir­on­ment­al groups — in­clud­ing the Si­erra Club, Earthjustice, and Ap­palachi­an Voices — were handed a minor vic­tory two weeks ago when a fed­er­al judge gave the ad­min­is­tra­tion two months to set a dead­line to fin­ish its re­view of coal-ash stor­age rules. But the vic­tory is bit­ter­sweet at best, be­cause even se­cur­ing that dead­line re­quired the en­vir­on­ment­al groups to sue an ad­min­is­tra­tion that once seemed all but cer­tain to side with them.

Mo­mentum built for new rules in Decem­ber 2008, when the con­tain­ment wall of a coal-ash pond at a Ten­ness­ee Val­ley Au­thor­ity power plant gave way, send­ing more than 1 bil­lion gal­lons of the ar­sen­ic- and lead-laden waste in­to the town of King­ston. The spill flooded homes and dumped linger­ing tox­ins in­to the loc­al wa­ter sup­ply.

At her con­firm­a­tion hear­ing weeks later, Lisa Jack­son, the in­com­ing ad­min­is­trat­or of the En­vir­on­ment­al Pro­tec­tion Agency, prom­ised to re­view the ex­ist­ing rules for stor­ing coal waste, and by Oc­to­ber of that year agency sci­ent­ists had pre­pared a plan to rad­ic­ally change them. EPA was ready to pro­pose re­clas­si­fy­ing coal ash as a haz­ard­ous waste and to is­sue the first set of bind­ing fed­er­al stand­ards for its stor­age and dis­pos­al.

Be­fore EPA could pub­li­cize its pre­ferred ap­proach, however, of­fi­cials had to route it through the White House Of­fice of Man­age­ment and Budget, which con­ducts in­ter­agency re­views of reg­u­la­tions that are deemed to be eco­nom­ic­ally sig­ni­fic­ant. And that’s where everything changed. The rules lingered at the White House for nearly sev­en months, and when they emerged, the un­am­bigu­ous push for stricter stand­ards had been re­moved.

The draft that EPA sent to the White House also men­tioned a second op­tion for reg­u­lat­ing the waste, which would as­sign the ash non­haz­ard­ous status and leave en­force­ment to the states — an ar­range­ment that has been in place for dec­ades. But the agency didn’t en­dorse that ap­proach, say­ing it “would not be pro­tect­ive of hu­man [health] and the en­vir­on­ment.” Dur­ing the White House re­view, however, the haz­ard­ous and non­haz­ard­ous op­tions were placed on equal foot­ing.

The coal-min­ing and util­ity in­dus­tries ap­plauded the el­ev­a­tion of the non­haz­ard­ous op­tion in 2010, say­ing it was enough to en­sure pub­lic safety and that the stricter al­tern­at­ive would place an un­ne­ces­sary bur­den on coal-fired power plants.

EPA re­leased that “mul­tiple choice” pro­pos­al in May 2010. Since then, little has happened. More than three years later, the agency has not re­leased a fi­nal rule, and the only sign of life on the is­sue was EPA’s Oc­to­ber 2011 re­quest to the pub­lic for more in­form­a­tion.

Why did the ad­min­is­tra­tion re­verse course on coal ash? The White House re­ferred ques­tions about the 2009 change to OMB’s press of­fice, which did not reply. For its part, EPA in­sists that it’s simply do­ing due di­li­gence. The agency is eval­u­at­ing new data and look­ing through the nearly half-mil­lion com­ments it has re­ceived on the pro­posed rule, said EPA spokes­wo­man Al­isha John­son. She de­clined to com­ment on when the agency might com­ply with the fed­er­al court’s or­der to pub­lish a sched­ule for fin­ish­ing the rule.

The ad­min­is­tra­tion’s en­vir­on­ment­al crit­ics, however, say the troubles are not tech­nic­al or sci­entif­ic but polit­ic­al. The push for coal-ash rules has few con­gres­sion­al cham­pi­ons and no short­age of crit­ics. The House in June voted to block EPA from de­clar­ing the waste haz­ard­ous, with 39 Demo­crats join­ing a Re­pub­lic­an ma­jor­ity. Also vot­ing in fa­vor was Re­pub­lic­an Rep. Chuck Fleischmann, whose Ten­ness­ee dis­trict in­cludes the site of TVA’s King­ston spill. The bill is likely dead in the Sen­ate.

That op­pos­i­tion led the White House to blunt EPA’s reg­u­lat­ory push in 2009, and the same forces with­in the ad­min­is­tra­tion are delay­ing it now, said Rena Stein­zor, a Uni­versity of Mary­land law-school pro­fess­or and the pres­id­ent of the Cen­ter for Pro­gress­ive Re­form. “I con­tin­ue to be­lieve it is a mat­ter of polit­ic­al con­veni­ence and weak­ness,” she said. “I’m just wait­ing to hear about the next spill. It’s a dis­aster wait­ing to hap­pen.”

But tired though they are of wait­ing, pa­tience may be en­vir­on­ment­al­ists’ best hope for the coal-ash rules they say are vi­tal. The White House now has a dif­fer­ent re­la­tion­ship with the coal in­dustry, as well as with coal-state law­makers, than it did in 2009. Then, the ad­min­is­tra­tion was still woo­ing both groups in a bid to get sup­port for cap-and-trade le­gis­la­tion to cut car­bon emis­sions. Now the cli­mate bill is dead, and so is the charm cam­paign.

Con­gres­sion­al op­pos­i­tion, in­clud­ing from mod­er­ate Demo­crats, did noth­ing to de­ter EPA from in­tro­du­cing green­house-gas reg­u­la­tions for power plants. And a bi­par­tis­an re­volt has made no pro­gress in lift­ing the ad­min­is­tra­tion’s tight new rules for moun­tain­top min­ing. If this ad­min­is­tra­tion wants to de­clare coal ash a health haz­ard, noth­ing is really stand­ing in the way. Ex­cept, of course, it­self.

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