Republicans Wanted More Air Pollution
Court Shuts Down Bush Attempt to Circumvent Clean Air Act
This is possibly the first anti-pollution success in the U.S. in six years. Republicans and lobbyists were caught trying to increase pollution and were told no.
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by J.R. PeggA federal appeals court on March 17, 2006, 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.
"The court could not have told the EPA more clearly that they must follow the Clean Air Act as it is written, not as they wish it were written," said Janice Nolen at the American Lung Association. "[It means] thousands of Americans will not have their lives cut short because of the pollution that would have blown through this huge loophole."
The regulation changed the "routine maintenance" exemption of the Clean Air Act's New Source Review (NSR) program and stands as one of the most far-reaching revisions of clean air regulations issued by the Bush administration. Congress devised the NSR program in 1977 to require owners of older industrial facilities to modernize pollution controls when they make modifications to facilities that result in increased emissions.
The August 2003 Equipment Replacement rule expanded the NSR routine maintenance exemption to include equipment modifications that did not exceed 20 percent of the replacement value of the equipment, notwithstanding an increase in emissions.
Administration officials and corporate lobbyists said the change would boost the reliability, efficiency and safety of industrial power plants and facilities while continuing reductions of harmful emissions.
But the court ruled that the expansion of the NSR exemption was a clear violation of the Clean Air Act and the panel rejected rationale put forth by the U.S. Environmental Protection Agency (EPA) that equipment upgrades do not fit within the law's definition of "any physical change."
The definition is unambiguous, the ruling said, and EPA "offers no reason to conclude that the structure of the Act supports the conclusion that 'any physical change' does not mean what it says."
EPA's interpretation of the statute "would produce a 'strange,' if not an 'indeterminate,' result: a law intended to limit increases in air pollution would allow sources operating below applicable emission limits to increase significantly the pollution they emit without government review," according to the court.
"Only in a Humpty-Dumpty world," would the regulation be allowed under the existing statute the court said in its 20-page ruling. "We decline to adopt such a world view."
The three judge panel even includes a Bush appointee.
New York Attorney General Eliot Spitzer hailed the decision as "a major victory for clean air and public health."
The ruling blocks regulations that "would have allowed aging power plants and other industrial polluters to make major modifications to their plants without improving their pollution controls," said Spitzer, who led the coalition of state attorneys general in the suit.
California Attorney General Bill Lockyer called the court decision, "a breath of fresh air in our fight to stop the Bush Administration from stifling our environmental and public health protections."
"The Administration's proposal would have bent the rules for some of the dirtiest air polluters," Lockyer said. "The court has said loud and clear that the Clean Air Act must be obeyed."
EPA officials who want more pollution said they are "disappointed" in the ruling and are reviewing their options - the agency has 45 days to appeal the decision.
"This is a victory for public health," said Howard Fox, an attorney at the nonprofit, public interest law firm Earthjustice, which represented six groups in the case. "It makes no sense to allow huge multi-multi-million-dollar projects that drastically increase air pollution without installing up-to-date pollution controls or even notifying nearby residents."
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