Maureen Lorenzetti
Washington Editor
A prominent Republican lawyer with deep ties to the family of President George W. Bush and a top aide to former President George H.W. Bush called on policy-makers last month to put stricter controls on aromatics levels in gasoline as a way to improve air quality and public health.
C. Boyden Gray, counsel to former President Bush, and now in private practice, said current environmental rules overemphasize the reduction of stationary-source emissions from power plants and refineries. Instead, the Environmental Protection Agency should focus on a more holistic approach that takes into account mobile source emissions that come from "dirty" fuels exhausted out the tailpipe.
"The main point I want to emphasize in this regard is that crude oil and gasoline have for historic reasons largely escaped the regulation that they would face on a level playing field and for that reason have the most entrenched position (as a pollution source). . .covered by US law," Gray said in written remarks distributed before a speech he gave to the Federalist Society in Washington May 9.
He cautioned that EPA is relying too much on lawsuits as an enforcement tool: regulators are trying to force companies to comply with outdated clean air rules that should be rewritten, he said. Instead of suing industry, the agency should retrain its efforts toward sensible performance based regulations, he suggested. EPA's litigious attitude combined with the Senate energy bill "will put crude oil back in its preferred position" and lead to the over-regulation of power plants and other stationary sources of air pollution, he warned.
Looking to performance
Along with EPA, Gray called on the White House to shift its attention toward mobile source pollution instead of always focusing on power plant smokestacks. Clean air rules should give industry overall emissions targets without the "command and control" regulations of the past that businesses have found too be too costly.
The administration may be listening: a few weeks after Gray's remarks, EPA announced it plan to revise the way it monitors air emissions of industrial facilities, including power plants and refiners, under the Clean Air Act's "New Source Review" provisions.
And on the mobile source side, EPA unveiled a collaboration it plans with the White House's Office of Management and Budget on off-road diesel vehicles. Regulators say they want to consider "the potential use of market-based averaging, banking, and trading programs that might include permission to trade emissions-reduction credits between off-road and highway engines, thereby stimulating more emission reduction at less cost; and how risks, benefits and costs might vary by type of off-road engine and geographical location of use" (OGJ Online, May 31, 2002).
During his time in the Reagan, and later Bush (Senior) administrations, Gray was a longstanding champion of market incentives, and helped fashion credit trading systems that were used to reduce acid rain and phase-out lead in gasoline.
"To its credit, the White House is trying to get performance standard-market incentive back on track, but in my opinion it will not stand a chance in the current fog of misinformation."
Gray said that one of the problems with the White House's environmental game plan is that "it totally ignores cars and gasoline, which is where the latest scientific research shows the biggest health threat likely to be."
One way to improve US air quality would be to limit aromatic content in gasoline to 20 vol. %, Gray said. He said there was research that shows aromatics account for three times as much fine-particle pollution as do diesel fuels. Such a move would also provide significant reductions for off-road emissions from small-engine sources such as lawn mowers, whose use is growing rapidly. The aromatic level in today's reformulated gasolines (RFG) is generally 25 vol %, according to EPA, but those amounts can vary. Conventional gasolines often contain higher levels.
Expand role of ethers
One answer public policy-makers should consider is allowing the continued use of ethers in gasoline, although Gray admitted that, for political reasons, this could prove problematic.
Another way "out of this tangle" is to create a level playing field by identifying the major components of fine particle pollution and then creating a market, including an exchange that would allow emissions trading from both mobile and stationary sources.
He held specific scorn for a portion of the Senate energy bill that phases out the oxygenate methyl tertiary butyl ether because of state concerns over groundwater contamination. The bill also triples fuel ethanol demand through a new mandate.
Gray called it an "ethanol bonanza that will increase crude oil imports, increase, pollution, and increase prices". (When used to satisfy the 2.0 wt % oxygen RFG standard, MTBE technically displaces more by volume (11%) than does fuel ethanol (5.7%), although gasoline suppliers often add fuel ethanol in 10 vol % amounts because of federal and state tax credits for ethanol).
The former presidential counselor then blamed MTBE's problems on a smear campaign by the giant agriprocessor Archer Daniels Midland, the nation's largest fuel ethanol producer.
"ADM has done a great job," Gray said. "I guess they gave more money to (California Gov.) Gray Davis."
No stranger to controversy
Gray has been a controversial and ambivalent figure to two groups typically at odds with one another: the oil industry and environmental groups. Business interests have long applauded his association with groups dedicated to regulatory reforms; he was key in bringing about a presidential task force for then Vice-President Bush in 1981 to reduce red tape and encourage environmental rules that are performance-based and market-driven. But the oil industry has been frustrated with his view on gasoline, largely blaming him for today's reformulated gasoline "recipes."
During the debate to revise clean air legislation in the late 1980s, oil companies say Gray urged the White House to seek the replacement of gasoline in the nation's smoggiest cities with alternative fuels such as alcohols and natural gas. Ultimately, RFG was offered and accepted by industry and environmental groups as a compromise measure. Oil companies also dislike Gray's persistent call to limit aromatic levels in fuel, saying refiners need a full slate of octane-enhancing components to meet fuel performance guidelines for today's high-performance engines that often have higher octane requirements.
"He's the Don Quixote of clean air regulation," said one industry lobbyist, commenting on the speech.
Environmental groups meanwhile, dislike Gray because of his scorn for stationary-source regulations, such as EPA's New Source Review, that aims to ensure power plant upgrades use updated emission-control features. They also argue that, during his years of public service under President Ronald Reagan and later former President Bush, he sought to relax or rescind the lead phase-down rule. According to an Aug. 12, 1981, White House press release, then Vice-President Bush said, "EPA will examine the feasibility of providing quick relief for small refiners and will operate a rulemaking to consider relaxing or rescinding the entire lead phase-down rule."
More than two decades later, Gray sees lead phasedown as a big success, calling it one of the "three most ambitious and successful pollution reduction programs" of all time.
The elimination of chlorofluorocarbons, and the 50% reduction in acid rain pollutants were the two other clean air programs Gray cited. And it's no accident that the reason each of these clean air rules was successful was because regulators allowed industry to use performance standards and market incentives, he said.
