08/09/2007 05:22 pm ET Updated May 25, 2011

The Unitary Executive Kool-Aid Acid Test

Chicago, IL -- A peculiar thing happened to Midwest Generation on the company's way to a wide-open permit to continue polluting at six of its Illinois power plants. For four years the Sierra Club and a coalition of allies have been pushing EPA to require the clean-up the six filthy coal plants that operate in and around Chicago. All of the plants lack modern scrubbers, that can cut emissions by upwards of 90 percent, and are a major factor in why Chicago does not meet clean air health standards. As part of our effort, we have filed two lawsuits against the EPA, generated numerous press stories, and secured commitments from the Blagojevich administration to take important steps to begin cleaning up. Illinois Attorney General Lisa Madigan two years ago urged EPA to deny the plants operating permits. Now EPA's regional office in Chicago has at long last filed a notice of violation against the coal plant owners alleging more than a decade of new source review and opacity (soot) violations.

This is long overdue but very welcome news," said Bruce Nilles, director of the Sierra Club's Midwest Clean Air Campaign. But it's also somewhat perplexing news. A week ago, EPA Administrator Steve Johnson REJECTED Madigan's legal petition and GRANTED Midwest its operating permits. Johnson claimed that Madigan had not provided enough evidence to justify turning down the permits, even though his own enforcement people clearly had enough evidence to file a note of violation a week later. And the pollution has been going on -- and has been reported to EPA -- for a decade.

In some sense it may not matter which section of the Clean Air Act Johnson uses to clean up Midwest Generation and Chicago, as long as he follows through and actually does it. But this bifurcated and seemingly contradictory decision may help explain Johnson's approach to his job. He is in many ways the most perplexing of Bush's environmental nominees. No ideologue, and a career agency civil servant, he has nonetheless presided over the worst set of decisions of any EPA Administrator in history. He imposed political muzzling on agency scientists on wetlands issues; refused to take action against lead contamination in toys, and then suggested weakening health standards for lead pollution; politicized EPA's air quality standard setting to an unprecedented degree by excluding scientists from the crucial steps in the process; when ordered by federal courts to issue emission standards to protect the public from mercury pollution from cement kilns, Johnson refused to do so; he shut down EPA's Regional libraries and denied public access to its scientific databases, while stripping the Agency's Inspector General of staffing and budget; and signed off on air pollution standards his own scientists had warned him were unjustified, and which his own staff has widely indicated Johnson himself did not support.

Johnson's fatal flaw may not be his view of environmental regulation or public health, but of his role as EPA Administrator; he seems to have drunk the Bush Administration's "unitary executive" Kool-Aid. Under this doctrine, what is important is not the language of the laws Johnson has sworn to enforce, nor his own independent judgment, which those laws specify he must employ. Under this doctrine, the EPA Administrator is simply the agent of the White House, and its "unitary" will -- allegedly that of the President, although in many of these cases one senses that someone like Vice-President Cheney or even a more junior political appointee played "executive."

In Unitary Executive Land, Johnson was correct to issue permits to Midwest Generation -- because that is an executive act. But perhaps he believes he has more latitude to allow his enforcement branch to go after Midwest Generation for violating the law, because that is a quasi-judicial act. Since those who have drunk this Kool-Aid are bound by a code of Omerta not to admit it, I suspect we'll never know what mixture of motives drove Johnson here. But it makes spectacularly evident, if it wasn't already, that we do not currently have a government of laws, but of men -- the men in the White House.