States Battle Over Bush Air Rule

By J.R. Pegg

WASHINGTON, DC, November 28, 2003 (ENS) - The legal challenge to the Bush administration's revision of a federal air rule became a battle of states Wednesday, as nine state attorneys general moved to intervene in the law suit by 14 states that seeks to block implementation of the new regulation.

The plaintiffs allege the new rule rolls back existing law and will allow industrial facilities to pump out more pollution indefintely, but the interveners argue that blocking it will do more harm than good.

According to court papers filed by the nine states seeking to intervene, failure to implement the new rule would harm states "by increasing the costs of enforcement, constricting their enforcement options, and frustrating the achievement of the Act's pollution control goals in a more efficient and cost effective manner,"

The nine states are Alabama, Alaska, Arkansas, Kansas, Nebraska, North Dakota, South Dakota, Virginia and Utah.

Last week, 14 states requested a stay of the rule change - set to enter into effect on December 26, 2003 - while their law suit challenging the new rule is under consideration by the U.S. Court of Appeals in Washington, DC.

The 14 states are California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin.

There is some partisanship in the state battle over the new rule - eight of the nine state attorneys general filing to intervene on behalf of the administration are Republicans; 12 of the 14 state attorneys general trying to block the rules are Democrats.

The Bush administration's new rule revises part of the Clean Air Act's New Source Review program, which requires owners of older industrial facilities to install the best pollution control equipment available when they make a major modification to an existing facility.

The new rule affects pollution controls at the nation's oldest and dirtiest power plants. (Photo courtesy NASA)

The new rule exempts facility modifications that cost less than a certain percentage of the entire facility or a specific piece of equipment, as much as 20 percent for some industries.

If the modification is more than 20 percent, a facility could still find exemption from New Source Review if it is replacing pieces of equipment with other pieces that serve the same function.

The revision impacts some 17,000 industrial facilities, including coal fired power plants, chemical plants, and oil refineries.

When it issued the final rule on October 27, 2003, the U.S Environmental Protection Agency said it did not believe the rule "would result in any significant changes in emissions."

The agency says the new rule will boost the reliability, efficiency and safety of industrial power plants and facilities while continuing reductions of harmful emissions.

But critics disagree and believe the new rule will slow the pace of emissions reductions from many of the nation's coal fired power plants and other industrial facilities.

It has been the source of widespread criticism from many Congressional Democrats, environmentalists and public health advocacy groups.

Two national associations representing state and local air pollution control officials - many of whom support revising the New Source Review program - have also publicly opposed the new rule.

This criticism has irked industry representatives, who welcomed the move by the nine states to intervene.

"Reform of the New Source Review program is considered critical to achieving energy efficiency, pollution control, workplace safety and electric reliability objectives," said Scott Segal of the Electric Reliability Coordinating Council, a lobbying group representing power companies. "[These] attorneys general have taken a principled stand that echoes the sentiment of many other organizations and state officials."

Segal noted that the D.C. Circuit Court of Appeals denied a request by many of the same plaintiffs to block implementation of the Bush administration's December 2002 changes to the New Source Review program. That case is still pending.