Last week, Chatterbox worried that the forthcoming HBO series K Street would ascribe to Washington’s lobbying industry moral complexity that doesn’t exist in real life. The cartoonish reality of the influence-peddling business is nicely illustrated by the news that John Pemberton, chief of staff to the assistant Environmental Protection Agency administrator in charge of air quality, has been hired by the Washington office of Southern Co., a major utility based in Atlanta. Pemberton’s hiring is of interest because just last week the EPA issued a final regulation long sought by the utilities in general and Southern Co. in particular. The regulation will allow utilities to generate more air pollution than is currently the case. The rulemaking, concerning what is colloquially known as “new source review,” settled a longstanding disagreement between utilities and environmental groups about whether power plants should be forced to install state-of-the-art pollution-control equipment whenever they renovate existing plants. This argument has been going on since Chatterbox covered the environment for the Wall Street Journal in the mid-1990s, and it’s actually somewhat difficult to say what a wise and just resolution would be. But it isn’t at all difficult to say that the utilities won hands down and that they promptly showed their gratitude by hiring a key government player in this decision.
Pemberton, who will start his new job this Monday, apparently recused himself from the rulemaking when he started negotiating over the job with Southern Co. But that was on July 31; the EPA formally proposed the rule seven months earlier, and the administration had been actively trying to resolve the issue practically from the moment President Bush took office. (Click here to see an e-mail Southern Co. sent Vice President Cheney’s Energy Task Force on the matter in March 2001.) An EPA spokesman told Scripps Howard, “John says he played a minimal role in [the rulemaking] throughout the last two and a half years,” but as chief of staff to the EPA’s top air pollution official Pemberton can’t have had all that small a role. Obviously he played a big enough role to impress Southern Co., which surely didn’t pick Pemberton’s name out of the phone book. (The utility may be on a shopping spree. Ed Krenik, the EPA’s congressional liaison, left that job this past Friday to join the law firm of Bracewell & Patterson, whose clients include the Energy Reliability Coordinating Council, a lobby group formed by Southern Co. and other utilities.)
Incidentally, last week the EPA also ruled (in response to this petition) that the language of the Clean Air Act doesn’t allow it to regulate carbon dioxide and other greenhouse gases, even though the law quite plainly defines “air pollutant” as
any air pollutant agent or combination of such agents … which is emitted into or otherwise enters ambient air. [This] includes any precursors to the formation of any air pollutant, to the extent the Administrator had identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used.
During the Clinton administration, the EPA’s general counsel had ruled that “there is no statutory ambiguity” about whether the EPA may declare greenhouse gases a pollutant under the Clean Air Act. It can. The general counsel then argued, perhaps disingenuously, that the Clean Air Act doesn’t require the EPA to do so. Now the EPA’s general counsel maintains, implausibly, that the EPA couldn’t do anything to halt global warning even if it wanted to. The main beneficiaries here were auto manufacturers, but the ruling was good news for utilities, too.
[Update, Sept. 4: Knight-Ridder’s Seth Borenstein quotes Bill Becker, executive director of the State and Territorial Air Polluter Program Administrators, saying, in effect, that Pemberton lied when he said he “played a minimal role” in crafting the new source review rule. “His role was significant and was huge,” Becker tells Borenstein. “Pemberton was the guy behind the scenes that worked very closely on this rule.”]