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Friday, March 17, 2006

Environment - DC Circuit issues important Clean Air ruling today [Updated]

State of New York et al v. EPA (DC Cir., 3/17/06)

Here is the AP report. Some quotes:

ALBANY, N.Y. (AP) -- A federal appeals court Friday blocked the Environmental Protection Agency from easing clean air rules on aging power plants, refineries and factories, one of the regulatory changes that had been among the top environmental priorities of the White House.

The new rules, strongly supported by industry representatives, would have allowed older plants to modernize without having to install the most advanced pollution controls.

The U.S. Court of Appeals in Washington declared that the EPA rules violate the Clean Air Act and that only Congress can authorize such changes.

Fourteen states and a number of cities, including New York, San Francisco and Washington, had sued to block the change in 2003, saying it would allow more air pollution. * * *

"This is an enormous victory for clean air and for the enforcement of the law and an overwhelming rejection of the Bush administration's efforts to gut the law," said New York Attorney General Eliot Spitzer, who led the lawsuit for the states. "It is a rejection of a flawed policy."

Peter Lehner, Spitzer's top environmental lawyer, said the decision applies to about 800 power plants and up to 17,000 factories nationwide.

Under the Clean Air Act, operators who do anything more than routine maintenance are required to add more pollution-cutting devices. Under the proposed change, industrial facilities could have avoided paying for expensive emissions-cutting devices if they spent less than 20 percent of the plant's value, Lehner said. * * *

The three-judge panel said that the EPA's reading of the Clean Air Act was "a Humpty Dumpty world" interpretation and that Congress had made clear it wanted older facilities to add pollution controls whenever they make modifications. * * *

The lawsuit was filed by New York, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Vermont and Wisconsin.

For background, see this ILB entry from Sept. 12, 2005.

[Updated 3/18/06] The Washington Post reports today:

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 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 [John Walke, director of the clean-air program at the Natural Resources Defense Council] 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."

The NY Times reports:
The ruling by a three-judge panel was the court's second decision in less than a year in a pair of closely related cases involving the administration's interpretations of a complex section of the Clean Air Act. Unlike its ruling last summer, when the court largely upheld the E.P.A.'s approach against challenges from industry, state governments and environmental groups, the new ruling was a defeat for the agency and for industry, and a victory for the states and their environmentalist allies.

In the earlier case, a panel including two of the three judges who ruled on Friday decided that the agency had acted reasonably in 2002, when it issued a rule changing how pollution would be measured, effectively loosening the strictures on companies making changes to their equipment and operations.

But on Friday, the court said the agency went too far in 2003 when it issued a separate new rule that opponents said would exempt most equipment changes from environmental reviews — even changes that would result in higher emissions.

The "earlier case" referenced above is State of New York v. EPA (DC Cir., 6/24/05), available here. The ILB did not "blog" it at the time because it was decided during the period last summer when the ILB was on hiatus.

Posted by Marcia Oddi on March 17, 2006 05:33 PM
Posted to Environment