Clean Air Trust Joins New Source Review Case

WASHINGTON, DC, May 18, 2004 (ENS) - The Clean Air Trust is joining 10 U.S. senators in a legal brief protesting the Bush administration's changes to the New Source Review provisions of the Clean Air Act, which the brief claims are illegal.

This "friend of the court" brief submitted in the case against the U.S. Environmental Protection Agency (EPA) before the U.S. District Court for the District of Columbia focuses on the history of the law.

The Clean Air Trust was established in 1995 by Senators Edmund Muskie, a Maine Democrat, and Robert Stafford, a Vermont Republican. Its purposes include defending the Clean Air Act. The Clean Air Trust says in its brief that the access it can provide to the extensive records at the Muskie Archives "can offer helpful guidance to the court by providing an authentic account of the development of the modification provisions of the Clean Air Act."

The senators' brief, now joined by the Trust, argues that the Clean Air Act Amendments of 1970 and 1977 reflect a specific Congressional decision to limit the period within which existing sources of pollution could continue to operate without complying with New Source Review (NSR) requirements.

The brief argues that Congress originally decided to reconcile economic growth with achieving and maintaining air quality by subjecting all pollution increasing changes - modifications of existing sources and additional new sources - to identical new source requirements.

"Congress afforded existing sources a limited grace period because existing sources' limited useful lives would force them to either upgrade or shutdown," the brief argues. "EPA's rules illegally substitute an extended immunity from NSR for the statutory regime of equal treatment of all emissions increasing projects."

The 1977 Clean Air Act amendments required power plant and oil refinery operators to install best available anti-pollution devices whenever they modified or expanded power plants, but not when they conducted periodic maintenance, repairs and routine upgrades on the plants.

The Bush administration, following the recommendations of the power and oil industries, has defined routine maintenance in a way that allows up to 20 percent of a facility to be upgraded without triggering the new source review of anti-pollution devices.

The Clean Air Trust points out that Congress gave older sources of pollution only a "limited grace period" before the "existing sources' useful lives would force them to either upgrade or shutdown."

The law is clear about what constitutes a "modification" of an existing source of pollution: any physical change in, or change in the method of operation "which increases the amount of any air pollutant," the law states. "The Bush changes, of course, would permit increased pollution," the Trust says.

The brief also points out that "the Bush administration can't change the law through a regulation just because it doesn't like the law. As we know, the Bush administration has tried to change the law on behalf of its industry friends, but hasn't made a persuasive case to Congress."

Defending the Bush administration changes, the National Center for Public Policy Research (NCPPR) says, "For two decades the Environmental Protection Agency enforced the "New Source Review" provisions of the 1977 Clean Air Act Amendments as intended by Congress. Then the Clinton administration changed the rules, throwing the energy industry into confusion, delaying plant modernizations and causing massive numbers of lawsuits."

"The Bush Administration now is acting to make sure the regulations are clearly understandable and are written in accordance with Congress' original intent, so the industry will know exactly what is expected of it, and plant modernizations can take place," the NCPPR states.

So, each side is claiming to represent the original intent of Congress. The court has not yet scheduled oral arguments in this case.

The court asked for the Trust's brief to be consolidated with that of the 10 senators, nine Democrats - John Kerry of Massachusetts, Hillary Rodham Clinton and Charles Schumer of New York, Jon Corzine and Frank Lautenberg of New Jersey, Barbara Boxer of California, Christopher Dodd of Connecticut, Jack Reed of Rhode Island, Patrick Leahy of Vermont, and one Independent, James Jeffords of Vermont.