Federal Court Blocks Bush Clean Air Act Loophole

WASHINGTON, DC, December 24, 2003 (ENS) - A federal appeals court today struck a blow at the Bush administration's attempt to rewrite the Clean Air Act. The court granted a stay against a new rule set to take effect Friday that would have allowed power plants and industrial facilities to make physical or operational changes that increased air pollution without installing the most modern air pollution controls.

The three judge panel wrote, "Petitioners have demonstrated the irreparable harm and likelihood of success on the merits required for issuance of a stay pending review."

The court will now review the legality of the rule written by the Environmental Protection Agency's (EPA) altering the New Source Review provisions of the Clean Air Act.

The loophole created by the EPA would allow more than 22,000 utilities, refineries, paper mills, and manufacturing facilities to replace existing equipment with "functionally equivalent" equipment without undergoing the clean air reviews required by the New Source Review program if the cost of the replacement does not exceed 20 percent of that of the entire "process unit."

Diamond Shamrock petroleum refinery, Commerce City, Colorado (Photo by David Parsons courtesy NREL)

The decision "will help stop the Bush administration's ongoing effort to eviscerate the federal Clean Air Act," said Spitzer, who serves in the Republican administration of New York Governor George Pataki. New York is on the receiving end of air pollution from power plands and industrial facilities in other states.

"The administration had attempted to rewrite the statute in a way that would have destroyed it," Spitzer said. "With this ruling, the Court has held consistent with our view that the new regulation was likely to be found illegal. The importance of this ruling cannot be understated. Not only does it freeze the regulation, but the court has also signaled that it may throw out the entire regulation after further review."

Keri Powell, an attorney at the environmental law firm Earthjustice, said, "The administration's rule change would allow industry to renovate facilities in ways that dramatically increase air pollution without installing up to date pollution controls or even notifying nearby residents

"The stay will prevent industry from taking advantage of this illegal loophole while the court challenge is pending."

Earthjustice is representing the American Lung Association, Communities for a Better Environment, Environmental Defense, the Natural Resources Defense Council (NRDC), the Sierra Club and U.S. Public Interest Research Group (U.S.PIRG) in the case.

"This is a great Christmas gift. The court has delivered tidings of joy to all Americans and a lump of coal to the Bush administration and its polluter friends," said John Walke, director of NRDC's Air Program.

To obtain a stay, the plaintiffs had to demonstrate that they were likely to prevail in their legal challenge to the rule. In addition, they had to show that their members would suffer irreparable harm if the court allowed the rules to go into effect. The court rarely grants requests to stay regulations pending judicial review.

In their request for a stay, the states argued that the new rule violates the plain language of the Clean Air Act, conflicts with Congressional intent, and contradicts long standing court rulings.

New York State Attorney General Eliot Spitzer (Photo courtesy State of New York)

Proponents of the rule change say it would not change any air quality standards, nor the permitted emissions levels for any industrial facility.

The nation’s largest industrial trade association, the 14,000 member National Association of Manufacturers (NAM), says on its website, "the proposed reforms would actually decrease emissions by making it easier for plants to update outdated equipment."

"The time, expense and uncertainty of the current program encourages manufacturers to rely on older equipment that emits more pollution, rather than upgrading to more energy and environmentally efficient equipment," says the NAM. "In the current economic climate, we need sensible reforms that streamline regulatory programs that allow companies to concentrate on improving energy efficiency, environmental performance and economic competitiveness."

But the environmental plaintiffs say the decision benefits public health. Zachary Corrigan, staff attorney at U.S.PIRG, said, "Today's victory means that hundreds of thousands of children, who would otherwise have suffered countless asthma attacks because of this clean air rollback, can now breath more freely."

The states participating in the stay motion are California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin.