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Environmental Groups Sue EPA for Weakening Clean Air Act

Charge Bush administration's new source review changes illegal
February 28, 2003
Washington, DC —

The Bush administration's changes to a key provision of the Clean Air Act is illegal and will dramatically increase air pollution, threatening the health of millions of Americans, according to a lawsuit filed today by Earthjustice on behalf of a coalition of environmental and public health groups. The groups – American Lung Association, Communities for a Better Environment, Environmental Defense, NRDC (Natural Resources Defense Council) and the Sierra Club – charge that on New Year's Eve the Environmental Protection Agency adopted illegal changes weakening the Clean Air Act's "New Source Review" program. This program requires industrial facilities to install modern pollution controls when they upgrade or modify their equipment and significantly increase their emissions.

"This rule change enables facilities to continue poisoning America's skies by ducking long-overdue pollution controls," said Keri Powell of Earthjustice, one of the attorneys handling the case for the plaintiffs. "The American public should be outraged at the price they will pay in death, illness, and environmental destruction."

Fifteen states already have filed similar challenges to the new rule, and challenges by other environmental organizations are likely.

"The weakening changes adopted by the EPA will allow chemical companies, oil refineries and power plants to increase air pollution while claiming on paper they are not. Relaxing air pollution rules applicable to 18,000 industrial pollution sources defies basic principles of common sense and good government. The American people need real, enforceable reductions in air pollution," said John L. Kirkwood, president and CEO of the American Lung Association, which has long been the leading national public health organization involved in the fight for clean air.

"The Bush administration decided to allow corporate polluters to spew even more toxic chemicals into our air, regardless of the fact that it will harm millions of Americans," said John Walke, director of NRDC's Clean Air Program. "More than 30,000 Americans die every year from power plant air pollution alone, and weakening the standards will only make things worse."

New Source Review was established more than two decades ago to reduce pollution from coal-fired power plants, oil refineries, and other large facilities. The program requires companies to install modern pollution control technologies in new plants, and in old plants when they make significant emissions-increasing modifications. While facilities in operation at the time the rule was implemented were exempt from the new requirements under a "grandfathering" clause, policymakers assumed that either they would be eventually replaced by new, cleaner facilities or upgraded with modern-day pollution controls. But the rule was not enforced adequately, so many older facilities are still operating without proper emissions reduction technology. December's rule change made it even easier for facilities to avoid updating pollution controls by adopting new loopholes and pollution accounting gimmicks.

"The administration's weakening of the Clean Air Act is bad news for anyone who breathes," said Carl Pope, executive director of Sierra Club. "The Bush administration gave polluters the green light to ignore Americans' health and safety. President Bush should enforce the law and tell power plants, factories, and refineries to reduce their pollution so our communities are healthier places to raise families."

The Bush administration's rule change opens up broad loopholes that allow prolonged and increased pollution:



  • Under the NSR provision, changes at industrial facilities resulting in significant pollution increases (e.g., 40 tons per year) trigger cleanup obligations. To determine whether pollution increases, a company must compare its pollution before the change, known as its pollution "baseline," with pollution levels after the change. The administration's rule change allows a facility to pick a fictional pollution baseline that is worse than its actual pollution levels, essentially allowing the facility to pollute more and pretend it is not.


  • The sole purpose of another loophole, called the "clean unit" exemption, is to allow facilities that significantly increase their air pollution to avoid having to clean up or install state-of-the-art pollution controls that were required under NSR rules.


  • The new rules adopt a plant-wide applicability limit (PAL) concept that purports to be a 10-year "cap" on pollution covering an entire facility. It allows facilities to lock in excessive pollution levels – without having to reduce those levels – and avoid cleanup under NSR for 10 years and beyond. EPA does not mandate pollution control requirements for new or existing polluting equipment under a PAL. A PAL will last 10 years, allowing pollution decreases that occurred nine years ago to purportedly "offset" actual and significant pollution increases today, thereby avoiding cleanup today.


  • Still another loophole allows facilities to emit more pollution if they claim market forces led them to increase emissions.

"With these loopholes, EPA is stripping away vital, cost-effective clean air measures that have protected Americans from the harmful effects of industrial air pollution for a quarter century," said Environmental Defense attorney Janea Scott. "Given the medical research documenting that current air pollution levels have serious effects on people's hearts and lungs, programs that protect the public's health should be strengthened not undercut."

Weakening this vital clean air program will harm communities across the country. Ozone-forming emissions, carcinogens such as benzene, and toxic metals such as mercury can be transported for hundreds of miles beyond the immediate area of a polluting facility.

"Bush's pro-polluter agenda puts profits ahead of public health and communities across the country are standing up for clean air," said Scott Kuhn, interim legal director of Communities for a Better Environment.

Today's lawsuit was filed in U.S. Court of Appeals for the District of Columbia Circuit. Also today, the Clean Air Task Force, Earthjustice, Environmental Defense and NRDC called on EPA Administrator Christie Whitman to reconsider and rescind the new NSR rules. The request came in the form of an administrative "petition for reconsideration" that pointed out the failings in the new rules and where EPA acted unlawfully, failed to explain or justify its actions, and denied the public its legal right to comment on EPA's action.


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Suzanne Carrier

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About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.