WASHINGTON — The Bush administration's plan
to let aging industrial plants modernize without buying expensive new pollution
controls was upheld Friday by a federal appeals court.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia
sided with the Environmental Protection Agency, saying New York and 13 other
states failed to show how key areas of the administration's new regulations
violate the 1970 Clean Air Act.
But the unanimous decision also came down against the EPA on two parts of the
rule changes, and told the agency to review a third, giving environmentalists
some reason for optimism within the 73-page decision.
Connecticut Attorney General Richard Blumenthal said the decision prevents
further reductions in harmful emissions that would lower the rates for a number
of diseases including asthma and cancer. He said his office would review the
ruling and decide whether to pursue further legal action.
"The court affirmed that Congress intended the Clean Air Act to protect
public health and air quality and repudiated Bush administration attempts to
roll back those protections," Blumenthal said. "Unfortunately, the
decision upheld parts of the new rule that allow polluters to avoid installing
pollution controls in some instances."
The Bush administration argued that its decision to let older power and other
industrial plants modernize without making them install expensive new pollution
controls will remove barriers to innovation and increase productivity -- and
will not worsen air quality.
But environmental critics say the changes also will increase sulfur dioxide and
nitrogen oxides that contribute to acid rain and public health woes such as
pulmonary and cardiovascular disease, leading to thousands of premature deaths a
year.
The judges' ruling said it is not clear if the administration's changes in
"new source review" regulations -- rules governing industrial sources
of pollution -- will lead to greater pollution, or if leaving the old rules in
place would deter companies from modernizing.
The new source review rules apply to some 17,000 facilities around the country,
including power plants, refineries, steel mills and pharmaceutical factories.
Industry officials cheered a concurring opinion submitted by Judge Stephen
Williams, who wrote:
"This case illustrates some of the painful consequences of reliance on
command-and-control regulation in a world where emission control is typically
far more expensive, per unit of pollution, when accomplished by retrofitting old
plants than by including state-of-the-art control technology in new ones."
Other states in the lawsuit were California, Connecticut, Delaware, Illinois,
Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Rhode
Island, Vermont and Wisconsin.
Peter Lehner, chief environmental lawyer for New York Attorney General Eliot
Spitzer, said the ruling lets states continue to take tough action against
polluters, and knocks down a number of changes industry lawyers had sought to
further loosen the rules.
Lehner noted the court frowned on the EPA's decision to allow companies not to
keep records of their pollution levels if they have reason to think they don't
produce enough pollution to trigger enforcement action.
The court directed the agency to either come up with a better justification for
the recordkeeping rule or change the provision.
"We think this is a major boost to clean air enforcement, because the court
upheld the importance of accountability by polluters and rejected industry
arguments to weaken the rules even beyond what EPA wanted," said Lehner.
The decision comes a week after a Richmond, Va., appeals court ruled power
plants can pump more pollutants into the air annually when they modernize to run
longer operating hours. That panel found the deciding factor was not that the
plants in question produced more pollution overall, but that the hourly rate of
emissions did not increase.
Friday's decision affects one prong of Northeast states' attack on Bush
administration changes to the regulation of industrial pollution.
"We're pleased with (the decision) because it removes obstacles to greater
efficiency that previously have hampered refineries from making needed upgrades,
and those upgrades help us provide a consistent supply of gasoline," said
Susan Hahn, spokeswoman for the American Petroleum Institute.
Another lawsuit, focusing on plant maintenance and upgrades, will be of greater
importance to power plants. That case is pending.
EPA Assistant Administrator Jeff Holmstead said the agency "is pleased that
the court upheld the key provisions of the new source review program. We believe
that these provisions will offer facilities greater flexibility to improve and
modernize their operations in ways that will reduce energy use and air
pollution."
Source: Associated Press