Agency Should Resume Prosecuting Clean Air Act Violations and Protecting Public Health, says NRDC

Statement by John Walke, NRDC Clean Air Program Director

WASHINGTON (July 5, 2006) -- A federal court has rejected a Bush administration request to reconsider a March decision striking down a rule that would have sabotaged a key Clean Air Act provision and threatened the health of millions of Americans.

In a unanimous ruling last Friday, the U.S. Court of Appeals for the D.C. Circuit turned aside the Environmental Protection Agency's plea for reconsideration.

Three judges on the court had ruled on March 17 that a loophole the EPA adopted for the new source review program violated the law by allowing thousands of aging power plants and other facilities to avoid installing modern-day pollution controls and emit more air pollution.

The new source review provision requires industrial facilities that make physical or operational changes that boost their total annual pollution to install state-of-the-art emissions controls. The EPA loophole would have allowed more than 20,000 facilities to replace existing equipment with "functionally equivalent" equipment without undergoing the clean air reviews required by new source review if the cost of the replacement did not exceed 20 percent of that of the entire "process unit." This exemption would have applied even if a facility's air pollution increased by thousands or tens of thousands of tons as a result of the replacement.

The court's March decision characterized the EPA's legal interpretation as a "Humpty Dumpty" upside-down world view. (For more information, click here.)

The EPA petitioned the original three-judge panel to reconsider its ruling, and at the same time petitioned all of the court's judges to rehear the panel's decision. Late last Friday, the judges denied both requests. Not one judge asked for a vote on the agency's appeal.

Below is a statement by NRDC Clean Air Director John Walke:

"The court rightly rejected EPA's request for a rehearing. The loophole the court rejected in March was a clear violation of the Clean Air Act and would have allowed industrial facilities across the country to pump out millions of tons of additional air pollution.

"Now it's time for the EPA to stop trying to sabotage public health safeguards and return to its real mission of enforcing the law and protecting public health. That means three things:

  • rescind an EPA enforcement policy that allows the unlawful loophole the court rejected to serve as the de facto law of the land, since the agency has refused to prosecute Clean Air Act violations by dirty coal-fired power plants unless they fail to qualify for the loophole;

  • resume Clean Air Act enforcement cases against dozens of power plant companies that violated the law but were let off the hook when the EPA adopted the loophole; and

  • abandon another new source review rulemaking proposal that would harm air quality and public health even more than the loophole struck down by the court. Under the new proposal, a power plant would only have to install controls if it increased its hourly pollution. That would allow plants to upgrade equipment to enable them to operate -- and emit more pollutants -- for many more hours per year without installing new pollution controls.

"Given the original court ruling's stinging rebuke, and the fact that not a single judge supported the EPA's appeal, the Bush administration should stop wasting taxpayer money with more futile appeals and decline to appeal Friday's ruling to the Supreme Court."