"The administration's rule change would allow industry to renovate facilities in ways that dramatically increase air pollution without installing up-to-date pollution controls or even notifying nearby residents," said Keri Powell, an attorney at Earthjustice. "The stay will prevent industry from taking advantage of this illegal loophole while the court challenge is pending." Earthjustice is representing the American Lung Association, Communities for a Better Environment, Environmental Defense, NRDC (Natural Resources Defense Council), Sierra Club and U.S. Public Interest Research Group (U.S. PIRG) in the case.
To obtain a stay, the environmental groups had to demonstrate that they were likely to prevail in their legal challenge to the rule. In addition, they had to show that their members would suffer irreparable harm if the court allowed the rules to go into effect. The court rarely grants requests to stay regulations pending judicial review.
If the court had not issued a stay, the new rules would have gone into effect on December 26 in at least 17 states and territories, including California, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New York, Nevada and Pennsylvania. Industrial facilities in those states would have been able to take advantage of the new air pollution loophole immediately.
"This is a great Christmas gift. The court has delivered tidings of joy to all Americans and a lump of coal to the Bush administration and its polluter friends," said John Walke, director of NRDC's Air Program.
The new source review program was designed to curb air pollution from industrial facilities by requiring them to install up-to-date pollution controls whenever they made physical or operational changes that increased air pollution. Many of the nation's older power plants have operated long beyond their expected lifespan, polluting at excessively high levels, largely because utilities have rebuilt these grandfathered plants over time. Often they modified these facilities in ways that increased air pollution without complying with Clean Air Act requirements to install modern emissions controls. The Environmental Protection Agency launched enforcement lawsuits against utility and refinery violators during the latter part of the Clinton administration for pollution increases that had resulted in millions of tons of air pollution.
The Bush administration is trying to derail these enforcement suits and eliminate future actions by changing the rules to allow companies to virtually rebuild their facilities and boost pollution levels without having to meet new source review program requirements. The loophole created by the new EPA rule would allow more than 20,000 power plants, refineries and other industrial facilities to replace existing equipment with "functionally equivalent" equipment without undergoing the clean air reviews required by the new source review program if the cost of the replacement does not exceed 20 percent of that of the entire "process unit." This exemption would apply even if a facility's air pollution increased by thousands or tens of thousands of tons as a result of the replacement.
"Today's victory means that hundreds of thousands of children, who would otherwise have suffered countless asthma attacks because of this clean air rollback, can now breath more freely," said Zachary Corrigan, staff attorney at U.S. PIRG.
Environmental Petitioners' Motion for a Stay Pending Review (719 kb PDF)
Environmental Petitioners' Reply in Support of Stay Motion (374 kb PDF)