Court Shoots Down Bush Attempt to Circumvent Clean Air Act

By J.R. Pegg

WASHINGTON, DC, March 20, 2006 (ENS) – A federal appeals court on Friday blocked the Bush administration from implementing a regulation that would have eased clean air requirements for some 17,000 industrial facilities, including coal-fired power plants and oil refineries. The court handed down a stinging rebuke of the regulation, which it said is "contrary to the plain language" of the Clean Air Act.

The unanimous ruling by the three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is a major victory for a coalition of 15 states and a long list of environmental and public health organizations who filed suit to block the August 2003 rule.

"The court could not have told the EPA more clearly that they must follow the Clean Air Act as it is written, not as they wish it were written," said Janice Nolen at the American Lung Association. "[It means] thousands of Americans will not have their lives cut short because of the pollution that would have blown through this huge loophole."

The regulation changed the "routine maintenance" exemption of the Clean Air Act's New Source Review (NSR) program and stands as one of the most far-reaching revisions of clean air regulations issued by the Bush administration. Congress devised the NSR program in 1977 to require owners of older industrial facilities to modernize pollution controls when they make modifications to facilities that result in increased emissions.

Edison Mission Energy's Homer City coal-fired power plant in Pennsylvania has the tallest stack of any power station in the United States at 1,216 feet. (Photo courtesy Kiyo Komoda)

Administration officials and industry representatives said the change would boost the reliability, efficiency and safety of industrial power plants and facilities while continuing reductions of harmful emissions.

But the court ruled that the expansion of the NSR exemption was a clear violation of the Clean Air Act and the panel rejected rationale put forth by the U.S. Environmental Protection Agency (EPA) that equipment upgrades do not fit within the law's definition of "any physical change."

The definition is unambiguous, the ruling said, and EPA "offers no reason to conclude that the structure of the Act supports the conclusion that 'any physical change' does not mean what it says."

EPA's interpretation of the statute "would produce a 'strange,' if not an 'indeterminate,' result: a law intended to limit increases in air pollution would allow sources operating below applicable emission limits to increase significantly the pollution they emit without government review," according to the court.

"Only in a Humpty-Dumpty world," would the regulation be allowed under the existing statute the court said in its 20-page ruling. "We decline to adopt such a world view."

The three judge panel includes two appointees of the Clinton administration – Judges Judith Rogers and David Tatel – and Judge Janice Rogers Brown, who was appointed to the federal bench last year by President George W. Bush.

New York Attorney General Eliot Spitzer hailed the decision as "a major victory for clean air and public health."

The Ohio Power Company's Gavin power plant is the largest in Ohio and has two of the seven largest coal-fired generating units ever built. The plant burns bituminous coal. (Photo courtesy AEP)

California Attorney General Bill Lockyer called the court decision, "a breath of fresh air in our fight to stop the Bush Administration from stifling our environmental and public health protections."

"The Administration's proposal would have bent the rules for some of the dirtiest air polluters," Lockyer said. "The court has said loud and clear that the Clean Air Act must be obeyed."

EPA officials said they are "disappointed" in the ruling and are reviewing their options - the agency has 45 days to appeal the decision.

The ruling is "a step backwards for the protection of air quality in the United States," according to Scott Segal, director of the Electric Reliability Coordinating Council, a trade organization group for electric utilities.

Segal said regulation would have encouraged the installation of efficiency upgrades that would reduce pollution and called on Congress to adopt the White House's Clear Skies legislation to fix the NSR program.

The Clear Skies legislation has failed to gain much traction in Congress, with critics concerned the plan rolls back the requirements of the Clean Air Act and fails to deal with carbon emissions linked to global warming.

"This is a victory for public health," said Howard Fox, an attorney at the nonprofit, public interest law firm Earthjustice, which represented six groups in the case. "It makes no sense to allow huge multi-multi-million-dollar projects that drastically increase air pollution without installing up-to-date pollution controls or even notifying nearby residents."

The organizations in the lawsuit included Alabama Environmental Council, American Lung Association, Clean Air Council, Communities for a Better Environment, Delaware Nature Society, Environmental Defense, Group against Smog and Pollution, Michigan Environmental Council, Natural Resources Defense Council, Ohio Environmental Council, Scenic Hudson, Sierra Club, Southern Alliance for Clean Energy, and U.S. PIRG.