EPA Persists in Embracing Unlawful Dirty Air Rules

Agency's agenda now undermining enforcement


Howard Fox, Earthjustice (202) 667-4500

Yesterday the Environmental Protection Agency rejected requests by state attorneys general and public health organizations to abandon or improve rule changes adopted in 2003 that weaken the Clean Air Act’s “New Source Review” (NSR) protections. These rule changes allow industrial facilities to cause massive pollution increases as a result of construction activities that cost up to 20% of the entire value of rebuilding a facility, without installing any pollution control equipment.

As a result of lawsuits filed by states and by non-governmental organizations such as the Natural Resources Defense Council (in which the non-governmental plaintiffs are represented by Earthjustice and the Clean Air Task Force), a federal appellate court in Washington blocked the harmful rule from taking effect in December 2004. The court blocked the rule after plaintiffs demonstrated that the exemption was likely illegal and would cause irreparable harm to themselves and the public, and therefore should not be allowed to become law during the time it takes the court to rule on the exemption’s ultimate legality.

“Yesterday’s EPA decision means that the agency is ignoring the implications of the court’s earlier ruling, and is committed to sticking with these polluter-friendly rollbacks over the objections of state air quality officials and hundreds of thousands of members of the public that objected to them,” said Earthjustice attorney Howard Fox.

Separately, a Friday federal district court decision in the NSR enforcement case that EPA is prosecuting against the utility company Alabama Power makes clear the harmful effect that EPA’s exemption is having on pending enforcement cases against coal-burning power plants. In that decision, a federal district court judge pointed to EPA’s 2003 rule exemption in ruling against the government and in favor of the defendant, Alabama Power. The judge pointed to arguments relied upon by EPA to support its rule exemption and noted that they were consistent with the same arguments made by the defendant, not EPA, in the enforcement case. And the judge further criticized the government’s prosecution of Alabama Power, by singling out EPA’s policy to only bring additional enforcement cases against utilities for projects that violate the 2003 NSR rule; EPA’s 2003 exemption is so sweeping that it would have excused Alabama Power’s violations.

This district court decision makes clear that EPA’s enforcement officials and former EPA Administrator Christine Todd Whitman were absolutely correct in warning that the 2003 NSR exemption would undermine the pending enforcement cases.

EPA’s position has been that it did not want to do anything to interfere with the ongoing NSR enforcement lawsuits against coal-burning electric utilities. It is apparent that enforcement is being interfered with, as witnessed in the Alabama Power court decision, even if only until this decision is reversed on appeal.

Worse, EPA’s press release is actively misleading about the pollution consequences of its harmful rule, noting that with the exemption “facilities cannot increase their emissions past their current Clean Air Act limits.” This statement fails to reveal two fundamental truths: first, many facilities do not have “current Clean Air Act limits,” so the exemption will allow unchecked emissions increases. And second, even more facilities have limits far above their current emissions levels, so the exemption would allow massive pollution increases above current levels. In both instances, these pollution increases are not allowed by the Clean Air Act or EPA’s pre-existing NSR regulations.

“EPA should get its house in order and abandon the NSR changes that are harmful and unlawful in their own light and that defendants’ lawyers are using to obstruct enforcement of the Clean Air Act and the obligation to adopt pollution controls to protect the public,” Fox said. EPA should abandon its insistence on upholding a Clean Air Act rollback that only benefits industry’s ability to increase pollution without controls, at the expense of public health and air quality. And EPA should initiate aggressive enforcement of clean air protections that are the law of the land, rather than an illegal and destructive dirty air loophole that has been blocked in the courts due to its harmful impacts.

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