COURT SHOOTS DOWN ATTEMPT TO EASE CLEAN AIR REQUIREMENTS
A federal appeals court March 17 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. For the complete article visit
http://www.ens-newswire.com/ens/mar2006/2006-03-20-10.asp
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Judges Overturn Bush Bid to Ease Pollution Rules
By MICHAEL JANOFSKY
Published: March 18, 2006
WASHINGTON, March 17 - A federal appeals court on Friday overturned a
clean-air regulation issued by the Bush administration that would have let
many power plants, refineries and factories avoid installing costly new
pollution controls to help offset any increased emissions caused by repairs
and replacements of equipment.
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Ruling in favor of a coalition of states and environmental advocacy groups,
the United States Court of Appeals for the District of Columbia Circuit said
the "plain language" of the law required a stricter approach. The court has
primary jurisdiction in challenges to federal regulations.
The ruling by a three-judge panel was the court's second decision in less
than a year in a pair of closely related cases involving the
administration's interpretations of a complex section of the Clean Air Act.
Unlike its ruling last summer, when the court largely upheld the E.P.A.'s
approach against challenges from industry, state governments and
environmental groups, the new ruling was a defeat for the agency and for
industry, and a victory for the states and their environmentalist allies.
In the earlier case, a panel including two of the three judges who ruled on
Friday decided that the agency had acted reasonably in 2002, when it issued
a rule changing how pollution would be measured, effectively loosening the
strictures on companies making changes to their equipment and operations.
But on Friday, the court said the agency went too far in 2003 when it issued
a separate new rule that opponents said would exempt most equipment changes
from environmental reviews - even changes that would result in higher
emissions.
With a wry footnote to Lewis Carroll's "Through the Looking Glass," the
court said that "only in a Humpty-Dumpty world" could the law be read
otherwise.
"We decline such a world view," said their unanimous decision, written by
Judge Judith W. Rogers, an appointee of President Bill Clinton. Judges David
Tatel, another Clinton appointee, and Janice Rogers Brown, a recent Bush
appointee, joined her.
The winners this time -more than a dozen states, including New York and
California and a large group of environmental organizations - hailed the
decision as one of their most important gains in years of litigation,
regulation and legal challenges under the Clean Air Act.
The provision of the law at issue, the "new source review" section, governs
the permits required at more than 1,300 coal-fueled power plants around the
country and 17,000 factories, refineries and chemical plants that spew
millions of tons of pollution into the air each year.
"This is an enormous victory over the concerted efforts by the Bush
administration to dismantle the Clean Air Act," Eliot Spitzer, the New York
attorney general, whose office led the opposition from the states, said in
an interview.
Mr. Spitzer, who is running for governor, said the ruling "shows that the
administration's effort to misinterpret and undermine the statute is
illegal."
Howard Fox, a lawyer for Earth Justice, which represented six environmental
and health groups in the case, called the ruling "a victory for public
health," adding, "It makes no sense to allow huge multimillion-dollar
projects that drastically increase air pollution without installing
up-to-date pollution controls."
The E.P.A. issued only a brief statement, saying: "We are disappointed that
the court did not find in favor of the United States. We are reviewing and
analyzing the opinion."
The decision is unlikely to be the last word; several circuit courts or
appeals courts have considered or decided related cases, and the issue may
eventually reach the Supreme Court. Some in Congress say the uncertainty
demands an overhaul of the Clean Air Act itself, but there has been no real
movement in that direction in recent years.
The new ruling addressed the administration's effort in 2003 to offer relief
to energy companies that faced costly settlements of litigation brought by
President Clinton's E.P.A. The agency proposed exemptions for companies
whenever upgrades to their equipment amounted to less than 20 percent of the
replacement cost of the equipment. In effect, that made perennial repairs of
old equipment a more attractive alternative in many cases than its outright
replacement.
Energy companies said the two rules the administration proposed in 2002 and
2003 would help them expand energy supplies at lower cost to consumers. But
environmentalists said the change would result in just the kind of increased
pollution that the law was intended to control.
The Clean Air Act calls for companies to build plants with up-to-date
control technologies, and the new source provision was a way to ensure that
as time goes by, pollution controls must be modernized along with the plants
themselves.
Industry groups, which had challenged the first E.P.A. rule last year as not
being flexible enough, were aligned with the agency this time. In general,
they have been close partners with the Bush administration in environmental
matters, pushing for greater economic considerations in the creation of any
new policy.
The 20 percent threshold in the overturned rule would have enabled plant
operators to make many repairs and upgrades without spending additional tens
of millions of dollars for more advanced pollution controls. In settlements
under the old rules, some companies faced costs of more than $100 million.
"This is a terrible decision," said Scott Segal, director of the Electric
Reliability Coordinating Council, a trade organization, arguing that the
"any physical change" definition created financial instability for plant
operators who spent as much as $800 million for a new boiler.
He and other industry leaders expressed hope that the court ruling might
induce Congress to pass new legislation that would include New Source
Review, a step that he said would make it easier for plant operators to plan
for their future upgrades and investments.
John Engler, president of the National Association of Manufacturers, called
the ruling "a significant setback to business efficiency" and environmental
quality.
The government has 45 days to decide whether to seek a review of the
ruling by the entire appeals court.
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