Mr. Wehrum comes before the Senate Environment and Public Works Committee today as President Bush’s nominee to the position of assistant administrator for air and radiation at the Environmental Protection Agency. For several years now, Mr. Wehrum has been an influential attorney in the EPA air office. In that role, he has shaped and promoted a series of agency decisions that needlessly threaten to prolong and even increase the high concentrations of industrial air pollution that millions of Americans are forced to breathe. Unfortunately, a review of even just a sample of the harmful initiatives that have emanated and continue to emanate from EPA’s air office with Mr. Wehrum’s active participation and support raises troubling concerns about this nomination. These episodes and several others will be the subject of written questions that I will submit to Mr. Wehrum.

By his own account, Mr. Wehrum was deeply involved in developing the so-called “Clean Air Mercury Rule” that EPA issued on March 15, 2005. That rule rescinded the agency’s prior commitment to mandate that, within three years, coal-fired power plants control their toxic mercury air pollution to the maximum extent achievable. In place of that unmet promise, which would have yielded eighty-to-ninety percent cuts in mercury emissions at each of the nation’s coal-fired plants by 2008, EPA left the public with a rule that will take until sometime after 2026 to reduce coal-plant mercury emissions by seventy percent. Moreover, the rule will allow many coal plants to avoid substantial control by buying mercury emissions credits from cleaner plants. In a study recently conducted at a site in the Ohio River Valley, seventy percent of the mercury found in the rainwater originated at nearby coal-burning plants. The fact that mercury emissions might decrease elsewhere in the country will be no consolation for the families living near plants that buy permission to keep their emissions high.

Mr. Wehrum was also a central participant in EPA’s October 2003 promulgation of an “Equipment Replacement Provision” that dramatically expanded a regulatory exemption from the Clean Air Act requirement that large industrial facilities accompany emissions-increasing renovations with the installation of up-to-date pollution controls. Two months before EPA issued the final provision, the General Accounting Office determined that EPA’s stated reasons for the change were based on self-serving, unsubstantiated industry anecdotes, rather than on reliable data. Shortly after EPA published its rule change, the U.S. Court of Appeals for the District of Columbia stayed the action after finding that it was likely unlawful and would cause irreparable harm to the public if allowed to take effect. Nine months later, EPA’s inspector general found that the agency’s support for the expanded exemption had already “seriously hampered” Clean Air Act enforcement against coal-fired power plants and that the exemption would “result in significant amounts of lost emissions reductions.”

Despite mounting condemnations from both within and outside of EPA, Mr. Wehrum and his colleagues refused to rescind the expanded exemption. On March 17, 2006, however, a unanimous panel of the D.C. Circuit found the EPA rule unlawful and vacated it. The panel wrote that EPA’s attempted legal defense of the rule – a defense crafted in no small part by Mr. Wehrum – would make sense “[o]nly in a Humpty Dumpty world.”

Rather than abandoning its misguided effort to undermine the Clean Air Act, Mr. Wehrum’s air office is forging ahead with a new proposal to neutralize the same pollution-control requirement that it unsuccessfully targeted in its 2003 rule. EPA’s stated goal for the new rule is conformity with the result of a decision by the U.S. Court of Appeals for the Fourth Circuit, which rejected EPA’s longstanding interpretation of key Clean Air Act language. That Fourth Circuit interpretation was later superseded, however, by a D.C. Circuit holding that upheld the erstwhile EPA position in a decision that, by law, establishes the governing rule across the entire country. Thus, EPA is ignoring a binding court decision in order to bring air-quality protection across the entire country down to the level prescribed by a ruling that never applied outside of one region and is in any event no longer controlling law. Mr. Wehrum’s office is again pursuing an approach that would make sense only in a Humpty Dumpty world. And the current, ill-conceived EPA air initiative, like the one in 2003, is having a negative impact even before it becomes a final rule. Just last week, the power company defendant in one of the largest-ever Clean Air Act enforcement suits filed a brief in the U.S. Court of Appeals for the Sixth Circuit arguing that it should not be liable for its pollution increasing activities since, under EPA’s new proposed rule, those activities would not trigger the Clean Air Act’s control requirements.

I cannot close without briefly mentioning two additional, related examples of the work that Mr. Wehrum has done in EPA’s air office. Mr. Wehrum has been an enthusiastic advocate of a multi-pollutant power-plant bill that fails to address carbon dioxide pollution. He has also helped to craft a recently-issued EPA interpretation of the Clean Air Act that makes it easier for companies building new coal-fired power plants to avoid using technology that sequesters carbon dioxide waste so that it can be placed into permanent storage. Carbon dioxide pollution from power plants is contributing to man-made climate change on a global scale. We must start achieving substantial cuts in that pollution now if we are to avoid devastating harm to our economy and the health and the wellbeing of our population. I find deeply disappointing the persistent aversion of senior EPA officials to meaningful action to address this problem. As for EPA’s steps to hinder the spread of technology that could allow us to continue relying on coal without worsening global warming, those actions simply defy explanation.

I urge Mr. Wehrum, in responding to my questions and concerns, to indicate whether he has changed any of the views that led him to advocate policies that I find starkly antithetical to the Environmental Protection Agency’s mission. I also encourage him to pledge specific steps that he would take as assistant EPA administrator to return the agency’s air office to the task of achieving the dramatic reductions in industrial air pollution that, as EPA’s own studies show, return benefits to the American public far in excess of the costs those cuts impose on industry.