A federal appeals court today struck down key provisions of a 2002 Environmental Protection Agency regulation that weakened air pollution control requirements for thousands of coal-fired power plants, oil refineries and factories. The U.S. Court of Appeals for the D.C. Circuit also rejected a central argument that industry defendants have used in ongoing Clean Air Act enforcement suits. The invalidated agency rules — and rejected industry position — would have allowed facility owners to avoid installing air pollution control equipment when undertaking plant construction that increases soot-, smog-, and acid rain-forming emissions.

The decision, which concerns the Clean Air Act’s “new source review” program, came in response to a 2003 lawsuit filed by NRDC (Natural Resources Defense Council), American Lung Association, Environmental Defense, Sierra Club and nine other environmental groups, 14 states and the District of Columbia, and 26 cities and towns in Connecticut. The environmental groups were represented by Earthjustice, the Clean Air Task Force and NRDC.

“Today’s ruling sends a clear message to EPA and the Bush administration,” said Howard Fox, an Earthjustice attorney. “Clean up our nation’s air and do not sacrifice our health and our natural resources for corporate convenience.” Together with NRDC attorneys, Earthjustice represented NRDC in the litigation.

“The polluter-friendly loopholes that the court struck down today would have led to more asthma attacks, more hospitalizations, and more sick days,” said David McIntosh, an NRDC attorney. “The elimination of these rollbacks means that we all will be able to breathe a little more easily.”

In a noteworthy passage of its opinion, the court found that EPA adopted its rules “based on incomplete data and thus cannot reasonably quantify the . . . rule’s impact on public health.” The court therefore admonished EPA to ensure that the surviving portions of the rule will not “result in increased emissions that harm quality and public health.” “EPA cannot possibly show that the rules upheld today will not harm air quality,” said McIntosh. “Administrator Johnson should put an end to the Bush administration’s campaign to weaken Americans’ clean air protections.”

The court rejected industry’s claim that only increases in facilities’ capacity to pollute — the most they could pollute — as opposed to increases in actual pollution, trigger cleanup requirements under the Clean Air Act. In two new source review enforcement suits, utility industry defendants had convinced trial courts to adopt the more permissive, capacity-based test. The court today dealt a fatal blow to this industry defense: The federal appeals court that speaks with the greatest authority to interpret the Clean Air Act has ruled the capacity-based test unlawful.

Unfortunately, the court also upheld certain parts of the 2002 rule, including a provision that allows facilities to increase pollution and avoid installing control equipment as long as emissions do not exceed the highest levels from the preceding decade. McIntosh pointed out, however, that states face restrictions against adopting the provisions that the court upheld. “The Clean Air Act prohibits states from adopting any regulatory changes, like those in EPA’s 2002 rule, that would make the state programs less protective,” he explained. “We will raise this issue with states — and if necessary file lawsuits — to protect the public and ensure that states don’t weaken their existing air quality safeguards.”

The new source review program was designed to curb air pollution by requiring industrial facilities to install up-to-date pollution controls and conduct air quality reviews whenever they make physical or operational changes that increase air pollution. Utilities have operated many of the nation’s oldest power plants long beyond their expected lifespans by rebuilding them over time. Often, they modified the facilities in ways that increased air pollution, but did not install required pollution control equipment.

Beginning in 1999, state attorneys general, citizen groups and the Clinton administration launched enforcement lawsuits against utility and refinery violators for pollution increases that had resulted in millions of tons of air pollution. The Bush EPA tried to undermine the enforcement suits and block future actions by changing the rules in 2002 and again in 2003. Today’s ruling addresses the 2002 rule changes. In a suit filed by environmental groups and state attorneys general, the same court that issued today’s ruling blocked the 2003 changes pending a final decision on the rule’s lawfulness sometime next year.

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The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 1 million e-activists and members, served from offices in New York, Washington, Los Angeles and San Francisco. More information is available at NRDC’s Web site.

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