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would have done a pretty good job trying that case. There just wasn’t that much to it.” A district judge agreed and handed down a $200 million judgment. Minton said his clients settled for $160 million part of which was $20 million in credit Senator John Whitmire Jana Birchwn bad decision. Asked if the campaign took the failed tailpipe-emissions cleanup program into consideration in shaping Bush’s current position on the environment, his campaign press secretary Karen Hughes responded, “What’s taken into consideration is that the EPA has reported that Texas leads the nation in reducing toxic emissions into our air and the Environmental Defense Fund has said that the electric dereg bill that the Governor signed is the best in the country.” Indeed, toxic emissions are being reduced, but as the nation’s leader in volume, Texas has a long way to go before it is anywhere near the national norm. And Bush does get credit for supporting strong pollution-control measures in the electric deregulation bill, which he signed into law at the end of the 1999 legislative session. But his role in killing the tailpipe emission bill is already being addressed at the TNRCC. Barbour said a new inspection and maintenance program “but not IM 240” will have to test for nitrogen oxide, which the Tejas program would have addressed. Chisum agrees. “The objective now is to reduce NOx [nitrogen oxide],” he said. The current testing program, administered by the Department of Public Safety instead of the TNRCC, ignores NOx. Every major urban area in Texas except El Paso has reported increased ozone pollution in the four years since Bush took office. Meanwhile, since 1995, the ozone problem has also spilled over into the suburban counties surrounding the state’s big non-attainment areas. “Now, it’s Dallas plus eight, I think. And Houston plus nine,” Chisum said. “So you’re talking a lot more counties. You can’t just do it by cars. But in Dallas, 54% of the NOx comes from cars. It’s a significant amount of NOx that’s produced by mobile sources. I think it’s about 34% in Houston. We’re still faced with going in and doing something about cars in those non-attainment areas,” Chisum said. “That issue will be back before us in the next legislative session. “The governor wasn’t in favor of bad air,” Chisum said. “But he was wrong. When you’re wrong, you’re wrong.” state environmental issues, this was by any reckoning a foolish flouting of federal law. There are certain instances, Minton said, when federal legislation establishes specific standards states must meet in order to get federal funding. Ever since FDR was president, Minton said, states have been entering into agreements with the federal government. “When you put that proposal together and send it to Washington, if they approve it … then it becomes federal law. There’s not anything the Legislature can do to repeal it. It would be kind of like our Legislature appealing the income tax. You can do it all day long, but it doesn’t make any difference. And that’s the kind of hokey stuff they were doing. “So we had a lay-down. I always like people to think: ‘Goddamn, that Minton must be something, getting all that money.’ But you know, my youngest grandchild Former Observer editor Louis Dubose is the politics editor at The Austin Chronicle, where a version of this story originally appeared. for the company. There is no doubt about who was responsible. “The governor and Whitmire,” said the Environmental Defense Fund’s Marston. “They did away with the program and claimed to put in another program, not nearly as effective. … Then they got sued. They knew they were going to get sued. They lost $140 million. Instead of taking the money out of general revenue, the TNRCC said, ‘We don’t need this $140 million, take it.’ They took $130 million out of the environmental fund. And the Legislature was able to hide from the public the fact that they had made a decision that flushed $140 million down the drain. Now, when they don’t have enough funds, year after year, when they don’t do something for air and the underground storage [tank] program, they say, ‘we don’t have enough money to do that.’ Yeah. You don’t. You took $130 million out of environmental funds.” In other words, a double loss: The money used to pay for a clean-air program that was never implemented was taken from a fund to pay for clean air programs that were up and running. The program that replaced what the governor and the Legislature scuttled 5 years ago has failed, although not everyone accepts that yet. Whitmire, who did not respond to a request for an interview, continued to defend the program and urged the state to appeal the district court’s decision. And the Bush presidential campaign won’t admit that killing the testing program was a OCTOBER 20, 2000 THE TEXAS OBSERVER ^ 15