AG Olens Ignored State EPD in Clean Air Challenge


(APN) ATLANTA — Sam Olens, the Attorney General of the State of Georgia, sought but ultimately ignored the advice of Georgia’s Environmental Protection Division (EPD), in a legal challenge of new rules issued by the US Environmental Protection Agency (EPA) pursuant to the Clean Air Act.

EPD advised Olens against challenging the Utility Maximum Achievable Control Technology (MACT) rule; however, Olens signed on anyway.

The Utility MACT rules are the first national standards to protect US families from power plant emissions of mercury and air toxics like acid gas, arsenic, cyanide, nickel, and selenium.

The Utility MACT rules are among several new clean air rules issued by the EPA under the President Barack Obama Administration.

Olens brought the legal challenges on behalf of the State of Georgia, even though the agency responsible for clean air in the State of Georgia asked him not to.

On September 22, 2011, Peter Manning in the Michigan Attorney General’s Office sent an email to attorney generals’ offices across the country including Georgia, stating, “The purpose of this e-mail is to ask you to consider joining an amicus brief that will be filed by Michigan Attorney General Bill Schuette in American Nurses Association v. Jackson.”

Michigan’s attorney general was preparing an amicus brief challenging the the proposed MACT rule.  EPA had proposed the MACT rule in response to a Consent Decree it had previously entered into with the American Nurses Association, which required it to address mercury pollution from coal power plants.

On October 05, 2011, John Hennelly in Olens’s Office sent an email to Jim Ussery at EPD, stating “we have a request from Michigan to sign-on to a brief to the District Court in D.C. where there is a CD [Consent Decree] that requires EPA to get a Utility MACT rule out by November.  The Michigan brief urges the court to extend that deadline for another year – until November 2012 to allow EPA sufficient time to analyze the thousands of comments received on the rule… Can you tell me if EPD has an interest one way or the other on this latest request?”

Later on October 05, James Capp at EPD responded to Diane DeShazo, Senior Assistant Attorney General.

“No.  I don’t think we should join.  1. If EPA needs more time, they will ask the court.  Michigan doesn’t know if EPA needs more time, or not.  Neither do we.  2. The rule, when final, will allow up to 4-years for existing sources to comply.  That’s tight, but doable.  3. Finally, EPA hasn’t sent their final proposal to OMB yet.  Therefore, it appears highly unlikely that they will make the November 16 deadline,” Capp wrote.

“I don’t see a benefit to joining this,” Capp wrote in another email to DeShazo.

Five days later, on October 10, 2011, Olens filed the amicus brief anyway, joining twenty-four other US states and Guam in challenging the Utility MACT rule.  The brief was filed in the case, American Nurses Association,  v. Lisa P. Jackson, and Administrator of The United States Environmental Protection Agency.

The amicus brief was thrown out by the court, according to Seth Gunning, Organizing Associate of the Sierra Club’s Beyond Coal Campaign.

When the EPA was considering the Utility MACT rule, the EPD made public comment in support of the rule, according to Gunning.  

“The state EPD had just previously passed their ‘Clean Air Mercury Rule’ (CAMR rule) and was supportive of further regulation,” Gunning told APN.

Therefore, Olens was legally challenging a clean air rule on behalf of the State of Georgia even though the state’s own EPD had spoken in favor of the rule during the EPA hearings.

Despite the challenge, on December 21, 2011, the EPA announced the Utility MACT.

Meanwhile, on October 06, 2011, Olens issued a press release announcing the state’s plan to sue the EPA over the Cross-State Air Pollution Rule (CSAPR), which was finalized by the EPA this summer.

“The rule requires draconian reductions in certain emissions in a very short period of time… will likely have severe economic repercussions on Georgia citizens and businesses if implemented and will cause major changes to the way electricity will be produced in the state starting January 1, 2012,” Olens stated in the press release.

Olens filed Georgia’s challenge to the CSAPR by way of petition on October 08, 2011, along with petitions by several other states.

The petitions filed by Georgia and other states have been merged into one case, which is EME Homer City Generation LP v. U.S. Environmental Protection Agency, 11-1302, U.S. Court of Appeals for the District of Columbia.

Emails obtained by Atlanta Progressive News show that a Southern Company lobbyist brought the rule to the attention of Olens’s office.

On August 10, 2011, Ronny Just with Southern Company wrote in an email to Nels Peterson in Olens’s Office, with the subject line, “cross-state rule,” noting, “Would like to come by and talk to you about it in the next week or so.”

On August 26, 2011, Just wrote to Peterson, “Thanks for your time yesterday.”  Mr. Just attached a link to an article on the website of the American Legislative Exchange Council (ALEC) regarding a challenge of the CSAPR rule brought by the State of Texas.

On September 14, 2011, Stan Wise, Chairman of the Georgia Public Service Commission, spoke against the CSAPR, MACT, and several other rules at a hearing by the US House Energy and Commerce Committee Subcommittee on Energy and Power.

“The EPA’s approach to analyzing the impact of these rules appears to be short-sighted and simplistic.  It just does not make sense,” Wise said during the hearing.

According to the hearing transcripts, many disagreed.

“The emission reductions from this final rule will have significant and immediate public health benefits.  By 2014, this rule will annually prevent: 13,000 to 34,000 premature deaths; 19,000 cases of acute bronchitis; 15,000 nonfatal heart attacks; 19,000 hospital and emergency room visits; 1.8 million days when people miss work or school; 400,000 cases of aggravated asthma; and 420,000 cases of upper and lower respiratory symptoms,” Dr. Susan Tierney, Managing Principal of the Analysis Group, said.

“These emission reductions will also improve visibility in national and state parks, and increase protection for sensitive ecosystems including Adirondack lakes and Appalachian streams, coastal waters and estuaries, and forests,” Tierney said.

“The $800 million spent annually on this rule in 2014, along with the roughly $1.6 billion per year in capital investments already under way as a result of CAIR, are improving air quality for over 240 million Americans and will result in $120 to $280 billion in annual benefits,” Tierney said.

“Georgia is losing jobs because many new jobs would be created in order to meet this compliance… Although Olens is supposed to represent the state agencies and Georgians, this does not seem to be the case and many are opposed to Georgia suing the EPA.  More than 1,500 letters were sent to Olens regarding their concern,” Gunning told APN.

Arguments in EME Homer City Generation LP v. US EPA, the case regarding the CSAPR, are scheduled for April 13, 2012, before US Court of Appeals for the District of Columbia Circuit Judges Judith Rogers, Thomas Griffith and Brett Kavanaugh.


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