States Sue to Block Bush's Clean Air Act Revisions

By J.R. Pegg

WASHINGTON, DC, October 27, 2003 (ENS) - A dozen states, the District of Columbia and several local governments today filed suit in federal court seeking to block the Bush administration's most recent changes to the New Source Review program. The lawsuit argues that the revisions violate the Clean Air Act and will weaken national air pollution protections and result in damage to the environment and to public health.

"The U.S. Environmental Protection Agency (EPA) can not adopt regulations that effectively repeal laws enacted by Congress," said Maine Attorney General Steven Rowe said.

Maine was joined in the law suit by the Attorneys General of Connecticut, Maryland, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin.

A number of local governments joined in the lawsuit, including the City of New York.

The suit was filed in the U.S. Court of Appeals for the D.C. Circuit - a coalition of environmental and public health groups say they will file a similar suit in the same court tomorrow.

Critics worry the rule change will allow the nation's oldest and dirtiest power plants to avoid pollution control upgrades. (Photo courtesy NASA)

The final rule, which was announced in August, was published today in the Federal Register and will become effective in 60 days.

It is supported by industry groups, who contend the New Source Review program has long been in dire need of reform.

The program, established in 1977, requires owners of industrial facilities to install the best pollution control equipment available when they make a major modification to an existing facility that increases emissions.

It contains an exemption for activities that qualify as "routine maintenance" - it is this loophole that the Bush administration has changed.

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

Industry representatives say that the original definition of what constitutes routine maintenance deterred some facilities from performing important repairs for fear they would trigger New Source Review, thereby impeding efficiencies that could benefit consumers and the environment.

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 EPA wrote in today's announcement that it "does not believe that this rule will result in any significant changes in emissions."

"It is a rule that will boost the reliability, efficiency and safety of industrial power plants while maintaining all of the Clean Air Act programs and standards that have driven down levels of emissions from power plants and other large industrial sources," according to the EPA.

The Bush administration's rule affects regulation of air pollution from the nation's 17,000 industrial facilities, which emit the majority of nitrogen oxide and sulfur dioxide. (Photo courtesy Environmental Protection Agency)

"If the Northeast attorneys general succeed, the country loses," Segal said.

The rule provides "much needed clarity to the rule that will spur efficiency, reductions in the rate of pollution, safety improvements, and better reliability of the power system," Segal said.

But critics believe the rule does nothing of the sort and the New Source Review program has become an increasing source of controversy for the Bush administration.

Senate Democrats have asked the EPA to investigate allegations that administration officials lied to Congress about the impacts of the new rule.

The revisions were strongly opposed by state and local air pollution officials, who believe the new rule adds a mass of uncertainty to the New Source Review program - the exact opposite of what the administration and industry say is needed.

Public health and environmental groups say it slows down the reduction of harmful air emissions and could potentially even allow for increased emissions.

"EPA's revisions fly in the face of myriad health studies showing the serious harm caused by exposure to emissions from these plants," said John L. Kirkwood, president and CEO of the American Lung Association. "We have conclusive evidence that air pollution increases asthma episodes, emergency room visits, hospital admissions and risk of death. What is lacking is a commitment by this administration to cleaner, healthier air for all Americans."

The administration's decision strikes many as misguided given recent settlements and a major court decision that supported the existing provisions of the New Source Review program.

Clean air advocates believe poor and minority communities suffer disproportionately from air pollution. (Photo courtesy Louisiana Bucket Brigade )

The settlements and legal victories would not have been possible under the revised rule, critics say.

"This loophole would allow a company to spend hundreds of millions of dollars to replace all of the components of a facility and dramatically increase its pollution," said John Walke, director of the air program at the Natural Resources Defense Council. "This pollution scam makes the Enron case look like a traffic violation."

The legal challenge follows a law suit filed by a similar list of state officials at the end of 2002, challenging the administration's revisions to the permitting process of the New Source Review program.

The D.C. Circuit Court of Appeals denied a request by the plaintiffs to block implementation of the December 2002 changes to New Source Review and the case is still pending.

Last week a similar coalition of states, local governments, and public interest groups filed suit in the same court to compel the Bush administration to address global warming by regulating greenhouse gases.