Supreme Court Puts Final Nail in Coffin in Administration Plan to Gut Key Clean Air Safeguard

This morning the Supreme Court refused to entertain pleas by the Bush administration EPA and industry to resurrect a Clean Air Act loophole that the federal appellate court in Washington struck down unanimously in March 2006. The loophole would have allowed more than 20,000 power plants, refineries and other industrial facilities to replace equipment with "functionally equivalent" equipment without first undergoing the required clean air reviews. The exemption would have applied even if a facility's air pollution increased by thousands -- or tens of thousands -- of tons as a result of the new equipment.

The 2006 appellate court decision had denounced EPA for violating the plain terms of the Clean Air Act. The court went so far as to observe that EPA's approach to the law would make sense "only in a Humpty Dumpty world."

The plaintiffs winning the case included Alabama Environmental Council, American Lung Association, Clean Air Council, Communities for a Better Environment, Delaware Nature Society, Environmental Defense, Group Against Smog and Pollution, Michigan Environmental Council, Natural Resources Defense Council (NRDC), Ohio Environmental Council, Scenic Hudson, Sierra Club, Southern Alliance for Clean Energy, and U.S. PIRG. The groups were represented by Earthjustice, the Clean Air Task Force and NRDC. A group of 15 state attorneys general, led by the State of New York, was also part of the successful lawsuit.

"Today's Supreme Court announcement marks the close of one chapter of the Bush administration's lawless campaign to weaken basic clean air protections," said John Walke, director of NRDC's Clean Air Program. Referencing the original court decision refusing to adopt EPA's "Humpty Dumpty" view of the law, Walke noted about today's Supreme Court action, "All the king's horses and men at EPA could not put Humpty Dumpty together again. The Bush EPA should stop pretending our laws can be set aside in favor of fictions they write for industry, and instead focus on protecting the American people against harmful pollution."

"We are grateful, but not surprised, that the Supreme Court has once again reminded EPA that the Clean Air Act says what it means and means what it says -- significant renovations at old dirty power plants cannot avoid requirements to apply pollution controls," said Ann Weeks, legal director, Clean Air Task Force.

While today's Supreme Court announcement puts an end to the Bush EPA's attempts to carve out this particular Clean Air Act loophole, other EPA proposals designed to exempt aging power plants and other industrial facilities from air pollution limits are in the works. 

"The Bush Administration is on notice that it cannot expect our nation's courts to look the other way while it flouts the Clean Air Act," says Earthjustice attorney Keri Powell.