News Intelligence Analysis
Court Sides With States, Activists
on EPA Rule
Factories Can't Modernize Without Upgrading Pollution Controls
By William Branigin
Washington
Post Staff Writer
Friday, March 17, 2006; 4:36 PM
A federal appeals court today blocked the Environmental Protection Agency from implementing a rule change that would have allowed power plants and factories to modernize without having to upgrade their pollution controls, a change that the court said violated the Clean Air Act.
Siding with 15 states, including New York, California and Maryland, along with several cities and environmental groups, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the EPA could not go ahead with a 2003 rule sought by industries, notably power-generating companies. The industry groups complained that a provision of the Clean Air Act discouraged them from modernizing their plants by requiring them to install expensive new pollution-control devices when they did so.
The states and other petitioners, including Washington, D.C., had sued the EPA over the rule change and obtained a stay in December 2003 that temporarily prevented it from taking effect while the court considered the issue.
The rule change sought by the EPA provided ways for "stationary sources of air pollution," such as power plants, refineries and factories, to avoid triggering a Clean Air Act requirement for new pollution-control equipment if they made "any physical change" that increased emissions.
Under the Clean Air Act, which was originally passed in 1970 and amended in 1990, routine maintenance, repair and replacement of plant equipment do not constitute changes requiring the new devices. The proposed change would have expanded the exemption to include upgrades that did not exceed 20 percent of the value of the plant, regardless of whether they resulted in increased emissions.
Writing for a three-judge panel of the D.C. Circuit Court of Appeals, Judge Judith W. Rogers said in an opinion that the court was vacating the proposed rule "because it is contrary to the plain language" of the Clean Air Act.
The ruling affects about 800 power plants and as many as 17,000 factories nationwide.
New York Attorney General Eliot Spitzer, the lead petitioner for the states, called the ruling "an enormous victory for clean air and for the enforcement of the law and an overwhelming rejection of the Bush administration's efforts to gut the law," the Associated Press reported. "It is a rejection of a flawed policy."
EPA spokesman John Millett said the agency is "disappointed" and is "reviewing and analyzing the opinion."
Scott H. Segal, a spokesman for a Washington-based coalition of power companies called the Electric Reliability Coordinating Council, called the decision "a step backward in the protection of air quality in the United States," AP reported. According to the group's Web site, the Clean Air Act requirement in question "is threatening the reliability of our national electrical system and unnecessarily increasing the cost of power to American consumers and businesses, while providing no additional protection to the environment."
The states that sued the EPA over the proposed rule change were New York, California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Vermont and Wisconsin. Backing them were officials representing the cities of Washington, D.C., New York and San Francisco.
© 2006 The Washington Post Company
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