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Court Says Changes By EPA Violated Clean Air Act
Washington Post
By Juliet Eilperin
Washington Post Staff Writer
Saturday, March 18, 2006; A01

A federal appeals court blocked the Bush administration's four-year effort to loosen emission rules for aging coal-fired power plants, unanimously ruling yesterday that the changes violated the Clean Air Act and that only Congress could authorize such revisions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with officials from 14 states, including New York, California and Maryland, who contended that the rule changes -- allowing older power plants, refineries and factories to upgrade their facilities without having to install the most advanced pollution controls -- were illegal and could increase the amount of health-threatening pollution in the atmosphere.

The Environmental Protection Agency's New Source Review policy was formally issued in 2003 but has never taken effect because of legal challenges by state officials and environmental groups. The administration has long argued that the existing standards are too stringent and have discouraged utility plants and other industries from upgrading and expanding their facilities. But opponents have characterized the rule changes as a favor to administration allies in the utility and coal-producing industries that would greatly add to public health problems.

New York Attorney General Eliot L. Spitzer, who led the court fight to block the administration's New Source Review policy, called yesterday's ruling "a major victory for clean air and public health" and a "rejection of a flawed policy."

"It will encourage industry to build new and cleaner facilities, instead of prolonging the life of old, dirty plants," Spitzer said.

In a statement, EPA spokesman John Millet said: "We are disappointed that the Court did not find in favor of the United States. We are reviewing and analyzing the opinion and cannot comment further at this time."

Some studies have linked pollution from coal-fired power plants to as many as 20,000 premature deaths in the United States every year. Environmental activists have made curbing this type of pollution one of their most pressing legislative and legal priorities, and yesterday they celebrated the ruling.

"Irish eyes are surely smiling -- and we all will be breathing easier -- with this green court ruling on St. Patrick's Day," said John Walke, director of the clean-air program at the Natural Resources Defense Council. "This is about as thorough a rebuke a court can give."

President Bush took office in 2001 promising to ease regulations on coal-fired power plants as part of a larger energy production initiative. Three successive administrators of the EPA have tried without success to alter the rules and policies adopted during the Clinton administration that cracked down on aging power plants and refineries that were not equipped with modern air pollution equipment when they were upgraded and when their output was expanded.

Under the revised policy that was rejected by the court yesterday, power plants and other industrial polluters would not have to install new pollution technology if they modernized less than 20 percent of their operations.

The central question in the case focused on what constitutes an industrial facility "modification," because that is what triggers the federal requirement to cut down on the smog or soot emitted by utilities, oil refineries, incinerators, chemical plants and manufacturing operations. Previous administrations, including Bill Clinton's, had interpreted that phrase to encompass any physical activity that increases pollution from a given facility, with the exception of routine maintenance.

EPA officials in the Bush administration sought to broaden this exemption by asserting that "routine maintenance" is any activity that amounts to less than 20 percent of a plant's value. But the ruling, written by Judge Judith W. Rogers, rejected that reasoning as illogical.

"EPA's approach would ostensibly require that the definition of 'modification' include a phrase such as 'regardless of size, cost, frequency, effect,' or other distinguishing characteristic," Rogers wrote. "Only in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use. We decline to adopt such a world-view."

The other two judges on the panel were David S. Tatel and Janice Rogers Brown.

The EPA's statement did not indicate whether the administration intends to appeal the ruling. Both Walke and Scott Segal, a lobbyist for the utilities industry, said it would be difficult for the administration to forge ahead in light of the appeals court's strong ruling. Walke said the decision is tantamount to the court "burying the rule six feet under, where before it was just in a casket."

Segal said the ruling will make it more costly for plants to operate. "This is a missed opportunity for reform that would have made it easier to improve power plant efficiency and workplace safety, and that's bad news for consumers and the environment," he said. "We believe it is a step backwards for the protection of air quality in the United States."
© 2006 The Washington Post Company

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