Carper Fights EPA’s Misguided Decision to Deny Delaware Further Action on Cross-State Air Pollution

NEWARK, Del. – Today, Senator Tom Carper (D-Del.), top Democrat on the Environment and Public Works Committee, gave testimony at a hearing on EPA’s decision to deny four petitions from Delaware under Section 126(b) of the Clean Air Act seeking to reduce ozone pollution in Delaware emitted from power plants in Pennsylvania and West Virginia. Senator Carper was joined by DNREC Secretary Shawn Garvin.

On June 25, Senator Carper submitted comments at EPA’s public hearing in Washington, D.C. on these proposed rejections. A week later on June 27, Senator Carper led a letter from the Delaware congressional delegation to EPA Administrator Scott Pruitt urging him to reconsider this proposal. The EPA held a public hearing on this proposal at the EPA offices in Washington, DC, but no hearing in Delaware was held after numerous calls for consideration from Senator Carper and Delaware state officials. In response, Senator Carper, Governor Carney and DNREC planned a public hearing to hear from Delawareans.

Below is the testimony of Senator Carper, as prepared for delivery:

“Before I begin, I want to thank Governor Carney and DNREC Secretary Shawn Garvin for their tireless leadership on clean air and other environmental issues that are critical to the people of Delaware.  I also want to thank everyone who came today to make their voices heard on this important issue.

“We are here today because on June 8, 2018, the Environmental Protection Agency (EPA) proposed to reject all four of Delaware’s Clean Air Act petitions requiring four power plants to reduce the ozone pollution that comes into Delaware. This ozone pollution drifting from other states is hurting Delawareans’ health, as well as our state’s economy.  I join Governor Carney and Secretary Garvin in urgently requesting EPA take a closer look and reverse this misguided decision. If EPA does not change course, we will have yet another situation where EPA is running away from of its most fundamental responsibilities, and Delawareans’ health will be put at risk.

“I’m reminded of a famous quote from Vince Lombardi, one of the greatest football coaches of all time.  He used to say that to be successful, ‘we have to go back to the fundamentals.’  It is said Coach Lombardi would take that mantra to extremes by starting each season by holding up a football and tell his team, ‘[G]entleman, this is a football.’   So today, I thought I would take a page out of Coach Lombardi’s playbook and start with the fundamentals. The fundamental mission of the EPA is to protect the health of all of the American people and our environment.  That’s all Americans, not just the people living in upwind states or the Midwest.

“In order to protect the health of all Americans, EPA must use the best science available – not politics – when implementing our environmental laws.  EPA must also ensure that every state is a good neighbor – follows the ‘Golden Rule’ if you will – by doing its fair share when it comes to reducing pollution. This Administration seems to have forgotten the EPA fundamentals. However, this isn’t a game.  Dropping the ball in this situation means sick kids, higher healthcare costs and lives lost.

“Despite what President Trump may believe, EPA’s mission and our environmental laws are just as important today as when they were first created.  The environmental threats Americans face now are real and do not respect state boundaries. This is definitely true of air pollution, such as the smog, soot and climate pollution – formed every day from the vehicles we drive to the aging coal plants powering our homes.   

“Downwind states are especially vulnerable when EPA refuses to do its job and turns a blind-eye to upwind polluters. Delaware, like many states on the East Coast, sits at the end of what I call ‘America’s tailpipe.’  This means that most of the air pollution in Delaware isn’t caused by sources within our state.  It comes from other states’ dirty emissions – emanating largely from cars, trucks and power plants – that drift into states like mine, as well as into neighboring states.. 

“Ozone pollution is one of the most prevalent cross-state air pollutants. For those that may not know, ozone pollution, also known as smog, chokes and inflames peoples’ airways.  It’s particularly dangerous for children, the elderly, and people with lung diseases like asthma; and can travel hundreds and, sometimes, even thousands of miles.  Left unchecked, ozone can cost billions of dollars every year in healthcare costs and missed work days, not to mention lives lost.

“Delaware has made great strides in cleaning up the state’s own ozone pollution, investing millions of dollars in clean air and energy technologies.  At the same time, Delaware has worked with its neighbors on regional efforts to reduce ozone pollution and has fully participated in federal cross-state air programs. Despite all of these efforts, some parts of Delaware still do not meet ozone health standards. 

“It turns out that the reason why is because some of Delaware’s upwind neighbors have not been as neighborly. A number of upwind states have not made the same clean technology investments or refuse to operate the technology full-time that has already been installed.  Some states have even built taller smokestacks, so dirty power plant pollution falls on Delaware and our neighboring states, while keeping the air of the polluting states clean and health care costs lower.  It is grossly unfair, and it needs to stop!

“The effects of this cross-state pollution on Delaware is staggering.  Our state has found that emissions from other states account for nearly 94 percent of ozone pollution in the First State. That means no matter how hard Delaware works to protect its own communities from dirty, smoggy air, 94 percent of the pollution lies outside the state’s control. Delaware must have the cooperation from upwind states and EPA to ever have the chance for healthy air. 

“Before 1970 – back when Coach Lombardi was winning Super Bowl games at Green Bay – Delaware had very limited tools to hold upwind states accountable for their air pollution.  Fortunately, when writing our clean air laws, Democrats and Republicans alike were especially concerned with the plight of downwind states like Delaware. 

“The Clean Air Act requires EPA to ensure everyone is a good neighbor when it comes to healthy air, requiring the agency to forge partnerships with the states to address cross-state pollution.  The Act also included provisions – such as the 126(b) petitions – to allow downwind states to hold upwind states accountable for pollution.  I like to call these ‘Golden Rule’ provisions – states should treat other states as they wish to be treated when it comes to dirty air.  Put simply, it is EPA’s job to make sure that everyone is following the Golden Rule so people both upwind and downwind have healthy air.

“In 2016, Delaware filed four Clean Air Act petitions showing that several states are clearly not following the Golden Rule when it comes to ozone cross-state pollution.   Our state found that four fossil-fuel power plants – three in Pennsylvania and one in West Virginia – are directly polluting Delaware and significantly contributing to Delaware’s ozone nonattainment status.  The good news is that these upwind facilities do not have to do much to help Delaware.  Three of the four facilities already have the best air control technology for ozone installed at their plants.  All Delaware is asking is for these power plants to consistently operate already installed pollution controls.  At the fourth facility, Delaware is asking the plant to continue to use natural gas and not be allowed to switch back to coal.

“Granting Delaware’s Clean Air Act petitions is a no-brainer to me.  The requested actions laid out by Delaware’s petitions are a miniscule cost for upwind states, especially compared to the costs my state and residents will incur if these long overdue actions are not taken. Sadly, this Administration seems to run away from the smart and right things to do. Instead of prioritizing the ‘residents of the State which receives the pollution and the harm’ as Congress intended, it seems that EPA is solely concerned about the costs and burden of the upwind states, ignoring the costs and burden of Delaware.  This is a clear example of failing at the fundamentals.

“And, adding insult to injury, it took EPA almost two years (over 660 days past the legal timeframe) as well as legal actions by the State of Delaware to compel the EPA to even respond to Delaware’s petitions.  Now, Delawareans are being told by EPA that the public comment period is open for only 45 days and refuses to hold a public hearing in Delaware.  EPA needs to hear from the people of Delaware directly. That is why I echo Governor Carney’s request to keep the comment period open longer and at least hold one hearing on this matter in Delaware.

“I would be angry if any Administration denied these petitions, but we cannot look at these petitions in a vacuum.  The Trump administration continues to seek cuts in state air program funding at EPA, while weakening enforcement and rolling back critical clean air protections that will further exacerbate the ongoing ozone cross-state pollution problems.  So we have a situation in which EPA is denying downwind states’ efforts to hold upwind states accountable for their air pollution contributions while increasing the air pollution that crosses state borders and taking away critical financial tools and programs to help states address pollution.

“To make matters worse, this Administration is also stacking the courts with questionable judicial appointments that have skewed views of environmental law,   making it even harder for our state to hold upwind states accountable.  The nomination of Brett Kavanagh comes to mind as a nominee who has attacked EPA’s ability to address cross-state air pollution across the board – one of the many reasons why I am highly unlikely to support his nomination.

“As the lead Democrat on the U.S. Senate Environment and Public Works Committee, I take very seriously my responsibility to hold any Administration that is in office accountable for enforcing our environmental laws and adhering to EPA’s sacred mission.  That is especially true of this Administration – and anyone that this Administration appoints to the courts – which thus far has been more focused on protecting polluters than protecting health.

“However, as anyone who has followed my public career knows, this issue in particular is deeply personal for me. It may surprise some to hear how much ozone drifts into Delaware from other states, but it doesn’t surprise me.  When I served as Governor of Delaware from 1993-2001, I could have shut down every emission source in our state’s economy, and we would still have been out of attainment of ozone air health standards due to upwind states’ dirty emissions.  I know firsthand how deadly and costly air pollution from out-of-state is for Delawareans.

“I’ve long tried to live my life by the ‘Golden Rule,’ and treat others the way I want to be treated. I believe this is a core fundamental of EPA and the environmental laws it enforces.  Delaware, along with our neighboring states, shouldn’t have to suffer because other states aren’t following the law.  By denying Delaware the ability to reduce harmful pollution from upwind states, this EPA is shirking its primary responsibilities, ignoring the needs of states and, most importantly, putting the health of Delawareans at risk. That is why I will continue to fight in Congress to overturn this decision and uphold the Clean Air Act.

“For all Delawareans, especially for the 70,000 who live with asthma, I say enough is enough.  EPA needs get back to the fundamentals and do its job – protect our health and the environment, not polluters.”


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