AG Pleased With Federal Court Ruling In Clean Air Suit

June 24, 2005

Attorney General Steve Rowe today expressed satisfaction that a federal appeals court in Washington, D.C., blocked some of the polluter-friendly loopholes the United States Environmental Protection Agency's (EPA's) 2002 New Source Review rulemaking. The court also rejected claims by industrial polluters that even the watered-down rules adopted by EPA were too strict.

"Today's ruling says that the EPA cannot effectively repeal the Clean Air Act through rulemaking," Rowe said. "While EPA has discretion, its discretion only goes so far”and not nearly as far as it wanted to go with these rules." While much of the decision was positive, the court did uphold some of the loopholes challenged by the states. As to these issues, Rowe said, "States' lawsuits are no substitute for an administration in Washington that will fight to protect the environment rather than fighting to protect polluters."

In December 2002, Rowe joined other state attorneys general in filing a lawsuit against the EPA for endangering air quality by exempting thousands of industrial air pollution sources, including many coal-fired power plants, from the New Source Review (NSR) provision of the Clean Air Act. NSR requires that industrial plants add modern pollution controls on upgraded or modified smokestacks that increase air pollution.

Today's decision upheld the foundation of the NSR program, which maintains that power plants and other sources must install pollution controls when they modify plants in ways that increase "actual" emissions. In addition, it upheld the states' challenges to certain new exemptions that would have made it easier for polluters to avoid the emission reductions required by law.

The court also shot down EPA's effort to allow companies to avoid full pollution reduction requirements for ten years by allowing lesser pollution controls. It also firmly rejected EPA's plan to free polluters from keeping any records with respect to many upgrades €“ a lack of record-keeping that the attorneys general argued would have severely hindered enforcement.

The decision also acknowledges the right of states to adopt more protective air pollution programs or to keep their existing programs if they better protect the environment and public health than the new federal rules. The court rejected the states' arguments favoring a stiffer approach toward industries other than power plants. The states sought to bar such facilities from avoiding installation of state of the art pollution control technologies by basing new emission limits on the highest pollution output from the previous ten years.

The decision is available at: http://pacer.cadc.uscourts.gov/docs/common/opinions/200506/02-1387a.pdf

CHARLES DOW, DIRECTOR, COMMUNICATIONS & LEGISLATIVE AFFAIRS, 207-626-8577