Lawsuit Challenges Gutting of Crucial Clean Air Act Program

Revisions threaten health of millions of Americans, plaintiffs charge


Keri Powell, 202-667-4500 x 209


Cat Lazaroff, 202-667-4500 x 213

Revisions to a key Clean Air Act program would allow thousands of aging power plants and other industrial facilities nationwide to emit more air pollution, threatening the health of millions of Americans, according to a lawsuit that will be filed tomorrow by a coalition of conservation and public health organizations. They will file the suit in the U.S. Court of Appeals in Washington, DC. Attorneys general from New York, 13 other states, and the District of Columbia are filing similar suits today in the same court.

The Bush administration’s rule change creates a loophole in the Clean Air Act’s “new source review” program, allowing 17,000 power plants, refineries and other industrial facilities to install replacement equipment without updating pollution controls, even when the replacement increases air pollution.

“This rule change is a blatant violation of the Clean Air Act, and will dramatically increase air pollution,” said Keri Powell, an attorney at Earthjustice, which is representing some of the coalition groups. “Millions of Americans will wind up breathing more polluted air if these revisions are allowed to stand.”

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. Meanwhile, the Clean Air Task Force is representing seven state and regional environmental groups.

“Thirty years of environmental progress have taught us that the Clean Air Act works, yet the Bush administration continues to weaken this tried and true solution,” said Nat Mund, an air quality expert with the Sierra Club. “Instead of protecting communities from air pollution, it has carved out a loophole in the new source review program that lets polluters off the hook for cleaning up their messes.”

Air pollution from refineries, mills, chemical plants and power plants contributes to tens of thousands of premature deaths each year and hundreds of thousands of asthma attacks. This pollution also causes widespread environmental degradation, including acid rain that kills fish and harms forests, algae blooms in lakes and bays, mercury-contaminated fish, and haze that obscures views in national parks and wilderness areas.

“EPA’s revisions fly in the face of myriad health studies showing the serious harm caused by exposure to emissions from these plants,” said John L. Kirkwood, president and CEO of the American Lung Association. “We have conclusive evidence that air pollution increases asthma episodes, emergency room visits, hospital admissions and risk of death. What is lacking is a commitment by this administration to cleaner, healthier air for all Americans.”

The new source review program was designed to reduce air pollution from industrial facilities by requiring them to install up-to-date pollution controls when they make physical or operational changes that increase air pollution. Many of the nation’s older, grandfathered power plants have operated long beyond their expected lifespans largely because utilities have rebuilt them over time. Often they modified these facilities in ways that increased generating capacity and air pollution, without complying with new source review requirements. After long neglecting such violations, the EPA launched enforcement lawsuits against utility and refinery violators during the latter part of the Clinton administration.

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 without having to meet new source review program requirements. The loophole created by the new EPA rule would allow a facility 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 no matter how much the facility’s air pollution increases as a result of the replacement.

“The Bush administration’s twisted logic is that a loophole that allows more than 17,000 industrial facilities to pollute more will prompt these facilities to pollute less,” said John Walke, director of NRDC’s Air Program. “Essentially this loophole would allow a company to spend hundreds of millions of dollars to replace all of the components of a facility and dramatically increase its pollution. This pollution scam makes the Enron case look like a traffic violation.”

“The pollution allowed by this rule will wind up in the lungs of millions of Americans, increasing their risk for asthma attacks, heart problems and even death,” said Dr. John Balbus, Director of Environmental Defense’s Environmental Health Program. “Americans already spend over $50 billion a year for the health related costs of air pollution. Why would anyone want them to spend more?”

In August 2003, the General Accounting Office issued a report finding that EPA used only anecdotal information provided by polluters to justify the new source review revisions. Meanwhile, 225,000 people submitted comments critical of the rule change, which U.S. PIRG staff attorney Zachary Corrigan says the EPA ignored. “Tens of thousands of Americans said no to these changes in writing, and hundreds showed up at public hearings to oppose them,” Corrigan said. “We’re filing this lawsuit to right the wrong committed by the Bush administration when it weakened the Clean Air Act. We’re suing to protect the public from more asthma attacks and more premature deaths.”


Additional contacts:

American Lung Association: Michelle Sawatka, 212-315-8727

Communities for a Better Environment: Scott Kuhn, 323-826-9771 ext. 108

Environmental Defense: Dr. John Balbus, 202-387-3500

NRDC: John D. Walke, 202-289-2406 or Elliott Negin, 202-289-2405

Sierra Club: Nat Mund, 202-675-2397 or Wendy Balazik, 202-675-2383

U.S. PIRG: Zachary Corrigan, 202-276-0159


For 100 years, the American Lung Association has been the lead organization working to prevent lung disease and promote lung health. Lung disease death rates continue to increase while other leading causes of death have declined. The American Lung Association funds vital research on the causes and treatments for lung disease. With the generous support of the public, the American Lung Association is “Improving life, one breath at a time.” For more information about the American Lung Association or to support the work it does, call 1-800-LUNG-USA (1-800-586-4872) or log on to

Communities for a Better Environment is a California-based environmental justice organization that combines community organizing, science, and legal advocacy to work for environmental justice on behalf of its thousands of members. For more information go to:

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Environmental Defense, a leading national nonprofit organization, represents more than 300,000 members. Since 1967, Environmental Defense has linked science, economics, law and innovative private-sector partnerships to create breakthrough solutions to the most serious environmental problems.

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 550,000 members nationwide, served by offices in New York, Washington, Los Angeles and San Francisco. More information on NRDC is available at its website:

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