When is an earmark not really an earmark?
A fresh bit of Congressional finagling raises that question in regard to yet another special favor for the coal-burning, ash-dumping carferry S.S. Badger – known to many in these parts as a stinky, creaky and rather pricey way across Lake Michigan that still beats the long drive around Chicago.
Since 2008, when the U.S. Environmental Protection Agency (EPA) began court-ordered regulation of various dumping practices by Great Lakes ships, the Badger has been promising to clean up its act. In return, EPA granted a five-year pass Lake Michigan Carferry, as the operating company is known.
But during that time, as far as I've been able to determine, LMC has done little if anything to actually move its operations toward a cleaner fuel or a way of depositing the coal ash – nearly a ton per crossing, more than 500 tons per year – into a landfill instead of Lake Michigan.
Instead, it has worked diligently to resist EPA regulation and to persuade the public that it’s a victim of silly rules and overzealous bureaucrats.
A permanent exemption
Having gotten the Badger listed as a national historic landmark, LMC next tried to have Congress add it to the national park system as a way of winning outright exemption from the pollution rules. And now, as reported last week in The New York Times:
Buried in a Coast Guard reauthorization bill now in final negotiations between the House and the Senate is curious language saying a “qualified vessel” shall continue to operate for its entire lifetime, “without regard to any expiration dates” on the permit it operates on. Nowhere does the word “Badger” appear, and nowhere is the expiration date of Dec. 19, 2012, noted.
But the enumerated qualifications — including that it be nominated for or on the list of National Historic Landmarks — apply to only one vessel, the Badger. ...
Republicans supposedly put an end to special-interest language slipped into bills to benefit projects or employers in their districts when they took control of the House last year. And the sponsors of that language, two Republican representatives, Tom Petri of Wisconsin and Bill Huizenga of Michigan, say it is not an earmark because it does not mandate the expenditure of any money.
Others disagree, including Democratic Sen. Dick Durbin of Illinois, who has been battling special treatment of the Badger a while now. One succinct senator, he told The Times: "If it walks like an earmark and talks like an earmark, it’s an earmark. I’m not going to let that language go through."
More than enough lenience
And to the communities of Manitowoc, Wis., and Ludington, Mich., which LMC says will be ecomomically devastated if the Badger has to shut down, Durbin said:
"This owner of this vessel has had a more than reasonable time to show respect for that lake you live next to and refused. There comes a time when we have to apply the law.
But the Republicans are sticking to their guns, and parroting the Badger line. A Petri spokesman told the Milwaukee Journal Sentinel that "Durbin is killing jobs in two states that he doesn't even represent.” Also, in the paper’s paraphrase, that the ash pollution is both trivial and preferable to having “thousands of cars … drive around the bottom of the lake."
As for Huizenga, the Detroit Free Press quoted this comment in the Congressional Record: “Without certainty provided by this amendment, the Badger could very easily, frankly, be forced off the Great Lakes at the end of 2012.”
Missed opportunities
But would the Badger have to shut down if it doesn’t win a permanent exemption? That’s not clear by any means.
If the Badger could prove that the costs of onshore ash disposal or of converting to an alternative fuel like diesel would force it out of business, it would stand a good chance of getting EPA to extend its lenient treatment. That’s how the law works.
Even at this late date, if LMC could show serious effort toward a new fuel or disposal system, it could conceivably get EPA to grant it additional time to come into compliance. Conceivably it could also get federal or state help with the cost of the upgrades.
But the company’s actions make plain that it isn’t really interested in solving this problem.
I’ve asked LMC, more than once, to outline what specific efforts it has made to find non-coal alternatives, and to explain why onshore ash disposal can’t be done. The reply has been consistent with the PR campaign, which claims that 1) the company is actively seeking to switch from coal to natural gas, and 2) that if gas doesn’t work out, onshore land disposal could indeed be achieved if the Badger got another five-year reprieve.
However, LMC’s supposed partner in a natual-gas conversion told me in September there was neither a business relationship nor continuing talks between the companies. And in its latest filings with EPA,the company continues to claim that onshore ash disposal is simply not feasible.
A posture of disregard
Those filings are available for public view here, and the self-portrait LMC presents in these documents is of a company that misses deadlines, ignores required lab-test protocols, bases economic projections on employee guesswork, quibbles over procedure and misses more deadlines.
Perhaps the strongest argument in its behalf – that the Badger delivers unique environmental benefits by taking lots of vehicles off the road – hasn’t held a lot of water since 2004, when the diesel-powered Lake Express began to offer competing ferry service between Milwaukee and Muskegon, with a significantly shorter crossing time and a slightly higher price.
As the Lake Express owners see it, lenience by EPA – and, earlier, by environmental regulators in Michigan – have given the Badger an unfair competitive advantage over their law-abiding alternative.
And they offer a knowledgeable rebuttal to the notion that the costs of landside ash disposal costs would bankrupt the Badger.
Using LMC’s own numbers for the maximum cost of ash disposal on land, and its ridership as taken from public documents, Lake Express marketing director Aaron Schultz calculates that Badger fares would have to go up about $4.25 per passenger and vehicle for five years, and $1 per fare after that.
Another $25 per round trip
My last round trip on the Badger cost just under $375 for two people and a passenger vehicle, after some special promotional discounts. Bumping it up to $400 wouldn’t have been enough to make me reconsider.
In the interest of doublechecking Schultz’s figures, I looked for fresher LMC data in its EPA filings. I found a letter dated last Sept. 18, in which the agency repeated its earlier request that LMC provide three years of financial statements and tax returns to support its claims of that it couldn’t afford to change its ways, and to do so by Oct. 2.
As of today, according to EPA's file, LMC hadn’t replied.
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In fairness to Reps. Petri and Huizenga, I feel obliged to include comments that Steve Ellis of Taxpayers for Common Sense gave The Times. He agreed it wasn't an earmark by his group's definition, because it wasn't a spending measure.
However, he also noted that it met other earmark tests: It's a benefit directed at a particular project or entity in a member's district and, worse, took a regulatory matter out of the hands of professionals responsible for applying the law.
Congress “shouldn’t be picking winners and losers in the regulatory arena,” he said. “Things like this should be debated on their merits, in the open, not slipped in through underhanded means in a Coast Guard bill.”
Amen to all that.