When Congress enacted the Clean Air Act of 1970, thousands of power plants, refineries, and other facilities were emitting large volumes of various air pollutants. The act required new facilities to be equipped with the most modern and efficient pollution-control technologies available. Many existing plants were let off the hook on the theory that they would be taken out of service fairly rapidly and replaced with new, clean plants.
That didn't happen. It turned out to be cheaper, much cheaper, to keep the old plants going. Many -- upwards of 18,000 -- are still operating today, 30 years later.
The law did, however, include important provisions addressing the older plants: If and when they make changes that increase emissions, they are required to retrofit with up-to-date technologies. This is a key part of what the law calls the New Source Review program.
Industry has fought against NSR with respect to existing plants ever since the program was created. It has filed many lawsuits to challenge the program. It has simply refused to abide by it. At one point not long ago, the Environmental Protection Agency estimated that something like 80 percent of refineries were out of compliance with the law.
Finally, in the mid 'nineties, EPA began suing large industrial scofflaws and making considerable progress. The suits that have been settled so far, in aggregate, have required polluters in various states to cut emissions by millions of tons annually of nitrogen and sulfur oxides -- pollutants that cause deadly particle pollution, acid rain, and (in the case of nitrogen oxides) smog. Faced with these suits, many facilities opted to clean up rather than fight in court.
Now, however the rules have been drastically changed. In 2002 the Bush EPA rewrote the NSR rules in ways that will slow, even reverse, the progress that has been made in controlling pollution from electric utilities, refineries, chemical plants, and other "stationary sources." This attempt to weaken new source review, has been challenged in court by fourteen states, various municipalities and air pollution control agencies, and several environmental organizations.
What's in Jeopardy
Air pollution kills more people every year than automobile accidents, and also causes tens of thousands of hospitalizations for cardiorespiratory problems, asthma, and other illnesses. It produces widespread environmental damage -- including to fish and forests, lakes and streams, parks and wildernesses -- and also damages agricultural crops.
The suits filed by the state, municipal and environmental group plaintiffs challenge several especially troublesome aspects of the new NSR regulations.
For example, even when a polluter makes a modification that would significantly increase air pollution over current levels, the new rules allow the polluter to evade new source review by arguing that there has been no increase over historical pollution levels -- even though a decade or more may have passed since the polluter was polluting at such levels.
Likewise, the weakened rules allow sources to evade review by claiming that emissions increases result from growth in market demand -- even though EPA itself has previously recognized that "in a market economy, sources often make physical or operational changes in order to respond to market forces and, consequently, there is no plausible distinction between emissions increases due solely to demand growth as an independent factor and those changes at a source that respond to, or create new, demand growth which then result in increased capacity utilization."
Earthjustice attorneys Keri Powell and Howard Fox are representing five of the environmental groups challenging the new rules: Natural Resources Defense Council, Environmental Defense, American Lung Association, Sierra Club, and Communities for a Better Environment.
On June 25 2005, the nation's second highest court invalidated EPA rules that allowed thousands of coal-fired power plants, refineries and factories to avoid installing equipment that reduced harmful air pollutants. Powell and Fox brought litigation challenging changes proposed by EPA in 2002. The U.S. Court of Appeals for the District of Columbia Circuit, wrote in an opinion on the case that EPA adopted its New Source Review rules "based on incomplete data and thus cannot reasonably quantify the…rule's impact on public health."
Power plants subject to NSR requirements have repeatedly used the argument that only an increase in a facility's capacity to pollute would trigger pollution cleanups. The court rejected this argument, and protected the future of new source review programs.
The new source review program was intended to ensure that older, dirtier power plants install up-to-date pollution controls to reduce toxic pollutants. This ruling, combined with additional litigation challenging NSR changes proposed by EPA in 2003, is seeking to protect this vital program.
Petition for Reconsideration