Court Says New Pollution Rules Violate Clean Air Act

A federal appeals court rules that the Environmental Protection Agency acted illegally when it issued new air-pollution rules for power plants and factories. The three-judge panel says the rules allowing plants to modernize without installing pollution-control equipment violated the Clean Air Act.

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A federal appeals court says the Environmental Protection Agency violated the Clean Air Act when it changed rules that dictate when older power plants must install modern pollution controls. NPR's Elizabeth Shogren has this report.

ELIZABETH SHOGREN: Under provision of the Clean Air Act called New Source Review, power plants and other major polluters need to install up to date pollution controls when they make any physical changes to their facilities that increase emissions.

HOWARD FOX: EPA tried to write the word any out of law.

SHOGREN: Howard Fox is an attorney with the group Earth Justice.

FOX: The law said any physical change, and EPA said we get to pick and choose which physical changes to include.

SHOGREN: Early in the Bush Administration, the EPA issued a rule to allow companies to replace and repair equipment without installing pollution controls as long as the changes didn't add up to more than 20 percent of the cost of the whole unit. Utility companies and manufacturers have long complained that the EPA's interpretation of the law keeps them from updating their plants. Fifteen states, several cities including the District of Columbia, and environmental groups sued to block the EPA rule. Today, a three-judge panel of the U.S. Court of Appeals in the District of Columbia said the EPA doesn't have the authority to make the changes. Only Congress does.

John Walk is a lawyer for Natural Resources Defense Council who used to work for the EPA.

JOHN WALK: I believe that this rule that the court struck down was the most harmful and most unlawful rule ever issued by EPA. So in some sense the ruling today is not unexpected. What is surprising and alarming is that the Bush Administration would have weakened the Clean Air Act so thoroughly without any regard for the law. But justice prevailed today and Americans can all breath easier.

SHOGREN: Environmentalists point to EPA data that show air pollution from power plants and other major industrial facilities cause tens of thousands of early deaths every year, as well as asthma attacks and lung and heart problems that send people to the hospital.

Peter Lanar, the top environmental lawyer from the New York Attorney General's office, says the EPA policy would have blocked states from forcing plants to clean up.

PETER LANAR: The rule that was struck down created a gaping loophole for power plants to increase emissions without putting on pollution controls. So we are hopeful that this will help the states in their effort to reduce pollution significantly.

SHOGREN: Industry groups say the ruling will have the perverse impact of making the air dirtier.

Scott Segal, who represents several utilities with coal-fired power plants, says the ruling keeps in place the previous EPA rules. Under those rules, plants choose not to update their facilities. That's because it would trigger regulations that cost them too much time and money.

SCOTT SEGAL: That is not good news for environmental protection because the more delay there is in improving power plant efficiency, the more energy is needed per unit of electricity that's generated, and that is the root cause of pollution.

SHOGREN: EPA officials issued a statement saying they were disappointed. They say they won't comment further, nor will they say whether they will appeal the case until they analyze the ruling. Elizabeth Shogren, NPR News, Washington.

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