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CAMPAIGN 2010

'As AG, Ayotte took on pollution'

Record at odds with campaign stances

When it comes to building support among environmentalists, Republican Kelly Ayotte's Senate campaign has been tepid, at best.

Ayotte has questioned the science of manmade global warming and opposes a cap-and-trade energy policy. She has taken more than $72,000 in contributions from the oil and gas industry, according to the Center for Responsive Politics. Her opponent, Democrat Paul Hodes, has sought to differentiate his environmental record from hers on drilling and renewable energy standards.

Yet a look at Ayotte's record as attorney general shows an office that was committed to environmental policy. Ayotte joined two multi-state lawsuits against the Environmental Protection Agency during President George W. Bush's administration. In both cases, Ayotte argued that the federal government was weakening environmental protection laws. She opposed a Republican-sponsored bill in 2005 that would have weakened the country's Clear Air Act. Ayotte's office pursued major cases involving air and water pollution.

Ayotte has spent most of her campaign focused on spending and the economy. But she said she is proud of her environmental record. 'Common sense environmental protection preserves New Hampshire's quality of life as well as the state's economic competitiveness,' Ayotte said. 'I am proud of my strong record of environmental protection from my time as attorney general.'

Jennifer Patterson, chief of the attorney general's office's Environmental Protection Bureau from 2001 to 2007, said Ayotte was 'reasonably involved' in deciding which cases to pursue. 'When we'd sign onto lawsuits that were being brought in conjunction with other states, obviously she was involved with it,' Patterson said.

The difference between Ayotte's positions as attorney general and as a candidate has bothered at least one activist. Jan Pendlebury worked with Ayotte and her office on environmental policy as the New Hampshire representative for the National Environmental Trust.

'I found Kelly Ayotte to be a different person than she is now,' Pendlebury said.

Pendlebury worked with her office regarding a variety of environmental issues. She said Ayotte and her staff were knowledgeable, accommodating, gave good advice and were committed to the issues. Now, Pendlebury said she is disturbed by Ayotte's comments on climate change.

'I just really feel sad when somebody decides they want to run for elected office, it seems they abandon their values and adopt whatever platform the national party tells them to adopt,' Pendlebury said.

Climate change

As a Senate candidate, Ayotte has said she supports the development of renewable energy and clean energy technology and understands the need to reduce greenhouse gas emissions. But many of her positions have put her at odds with environmental advocates. Ayotte opposes cap-and-trade legislation, which would establish a cap on carbon emissions and force companies to buy credits to discharge emissions. Ayotte, like many Republicans, calls it an 'energy tax' and says it will make the U.S. less competitive.

She signed a 'No Climate Tax' pledge put out by the group Americans for Prosperity committing to 'oppose any legislation relating to climate change that includes a net increase in government revenue.' She supports 'responsible drilling' for oil and expanded nuclear power.

'We can reduce greenhouse gas emissions and make our environment cleaner without destroying America's global economic competitiveness,' Ayotte said. 'We can't allow special interests from the left to use this issue to pass massive 'cap and trade' legislation that hikes taxes, raises energy costs and ultimately harms our economy.'

Ayotte said during the campaign that she would support 'reining in' the role of the EPA. Asked another time if manmade global warming has been proven without a doubt, Ayotte said no. In another debate, she said scientific evidence has shown that human activity could have contributed to higher temperatures.

Catherine Corkery, chapter director of the Sierra Club, said the group has endorsed Hodes because of his support for reducing carbon emissions, for trying to deal with global warming and for setting fuel economy standards for buses and trucks.

But Ayotte has recognized the importance of climate change in the past. In a 2005 letter to a Senate committee signed by Ayotte and 12 other attorneys general, the group wrote that they opposed the Clear Skies Act of 2005 because it ignored global climate change.

'The Senate should act now to address the devastating effects of global climate change,' the attorneys general wrote. They said that to address climate change, power plant owners needed to cut carbon dioxide emissions. 'The bill's failure to impose any limitation on carbon dioxide emissions constitutes a glaring failure to confront an enormous problem,' they wrote.

The bill was one of several Republican-sponsored bills under Bush dealing with the Clean Air Act. A 2005 statement by the New Hampshire chapter of the National Environmental Trust said the bill 'includes new loopholes that weaken the Clean Air Act and allow increases in emissions of mercury, arsenic, lead, and other toxic chemicals from a wide range of industrial facilities.'

The attorneys general wrote that the proposed pollution cuts in the bill would be too little, too late, that the bill would repeal anti-pollution enforcement tools, would weaken standards on mercury emissions and would exempt certain industrial boilers.

Mercury emissions

That was not the only Bush-era environmental policy Ayotte opposed. In June 2004, Ayotte - then acting attorney general - and state Environmental Services Commissioner Michael Nolin submitted comments to the Environmental Protection Agency opposing a federal plan for a cap-and-trade system to regulate mercury. In March and May 2005, the state sued the EPA in two related cases for adopting the mercury rule. The second lawsuit was filed by 11 states.

The states wanted the EPA to set specific mercury emissions standards for every coal- and oil-fired power plant. The EPA proposed standards that most power plants could meet without installing additional pollution controls. The EPA would set a cap for mercury emissions nationwide and allow plants to trade emissions credits. Ayotte and the other states argued that cap-and-trade was not an appropriate tool for regulating mercury, since it would not help the problem of local 'hot spots' around plants that buy emissions credits.

The issue had particular resonance in Hew Hampshire. A 2007 study found one of the worst hotspots in the Northeast was in southern New Hampshire, including an intense deposit near Concord. Joel Harrington, then-vice president of the Audubon Society, said all New Hampshire's public water bodies had fish advisories warning about the presence of mercury.

'Our lakes became the canary in the coal mine,' Harrington said. 'They were an indication there was a bigger problem, and why a number of states in the Northeast were interested in pursuing real changes in federal policy.' About 2006, while the federal lawsuit was pending, the state Legislature passed an aggressive mercury reduction policy.

The EPA mercury rules were thrown out by a federal appeals court judge in 2008, and the EPA is currently developing new standards for toxic emissions from power plants.

The debate over cap-and-trade for mercury is not the same as the cap-and-trade debate today over carbon emissions. Pendlebury said mercury is considered a dangerous neurotoxin that can hurt individuals locally and must be eliminated at its source, while carbon is harmful because of its global cumulative effect.

More litigation

Ayotte's office opposed another EPA rule in 2006 and 2007, when New Hampshire joined 11 other states in suing the EPA to stop it from reducing public access to information on toxic chemical releases. The federal government's Toxics Release Inventory program requires industries that emit toxic chemicals above a certain amount to file an annual public report. The rule change increased the reporting threshold for chemicals - including some of the most dangerous ones - to the point that many chemicals would no longer be reported at all.

Ayotte called the new rules 'illegal and counterproductive to full public disclosure of toxic releases,' and said they would hurt state and local efforts to protect citizens from toxic releases by reducing public access to information.

New Hampshire also joined other states on several smaller suits. In 2005, for example, New Hampshire joined 13 states demanding that the U.S. Department of Energy update its energy efficiency standards for appliances. The following year, New Hampshire and 12 states sued the EPA for failing to strengthen air quality standards.

Ayotte's office also took an active role in prosecuting several major cases that were started in previous years. After seven years of litigation, the attorney general's office joined a 2007 settlement in a case regarding air pollution from Midwestern coal-fired power plants, which was affecting the Northeast. New Hampshire received $1.2 million from American Electric Power to use for environmental projects.

Her office also continued prosecuting a statewide case against oil companies for polluting state waters with MtBE, an additive used in gasoline. The suit was started in 2003 and has gone back and forth between state and federal courts. It is still pending. One local environmental lobbyist said Ayotte's office vigorously pursued violations of the Shoreland Protection Act - against those who cut down trees or built boathouses improperly.

Typically, the decision to get involved in a lawsuit lies with the attorney general's office, not the governor's office. And some cases spanned several governors. Criticism of the EPA mercury rules started when Republican Craig Benson was governor, and the lawsuit was filed under Democratic Gov. John Lynch.

It is difficult to know how involved Ayotte was personally since those who worked most closely with her would not talk to the media. Patterson said often the multi-state lawsuits were submitted through the National Association of Attorneys General and went through an internal review process which 'certainly included the front office.'

Robert Varney, a former New Hampshire environmental services commissioner, worked as regional administrator for the EPA during Ayotte's tenure as attorney general. 'She was fairly active on environmental issues,' Varney said of Ayotte. Though the multi-state lawsuits were handled in Washington, Varney said he worked with the attorney general's office on issues such as energy efficiency and enforcing environmental laws.

Several environmental activists said they dealt more with the Department of Environmental Services than the attorney general's office. Department of Environmental Services spokesman Jim Martin referred questions to the attorney general's office.

But even activists who had concerns about Ayotte said they are mostly worried about what she has said on the campaign trail. None of them criticized her record as attorney general.

(Shira Schoenberg can be reached at 369-3319 or sschoenberg@cmonitor.com.)

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