From: Devlin Barett, Associated Press
Published June 27, 2005 12:00 AM

Appeals Court Upholds EPA on Letting Older Plants Pollute More

WASHINGTON — The Bush administration's plan to let aging industrial plants modernize without buying expensive new pollution controls was upheld Friday by a federal appeals court.


A three-judge panel of the U.S. Court of Appeals for the District of Columbia sided with the Environmental Protection Agency, saying New York and 13 other states failed to show how key areas of the administration's new regulations violate the 1970 Clean Air Act.


But the unanimous decision also came down against the EPA on two parts of the rule changes, and told the agency to review a third, giving environmentalists some reason for optimism within the 73-page decision.


Connecticut Attorney General Richard Blumenthal said the decision prevents further reductions in harmful emissions that would lower the rates for a number of diseases including asthma and cancer. He said his office would review the ruling and decide whether to pursue further legal action.


"The court affirmed that Congress intended the Clean Air Act to protect public health and air quality and repudiated Bush administration attempts to roll back those protections," Blumenthal said. "Unfortunately, the decision upheld parts of the new rule that allow polluters to avoid installing pollution controls in some instances."


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The Bush administration argued that its decision to let older power and other industrial plants modernize without making them install expensive new pollution controls will remove barriers to innovation and increase productivity -- and will not worsen air quality.


But environmental critics say the changes also will increase sulfur dioxide and nitrogen oxides that contribute to acid rain and public health woes such as pulmonary and cardiovascular disease, leading to thousands of premature deaths a year.


The judges' ruling said it is not clear if the administration's changes in "new source review" regulations -- rules governing industrial sources of pollution -- will lead to greater pollution, or if leaving the old rules in place would deter companies from modernizing.


The new source review rules apply to some 17,000 facilities around the country, including power plants, refineries, steel mills and pharmaceutical factories.


Industry officials cheered a concurring opinion submitted by Judge Stephen Williams, who wrote:


"This case illustrates some of the painful consequences of reliance on command-and-control regulation in a world where emission control is typically far more expensive, per unit of pollution, when accomplished by retrofitting old plants than by including state-of-the-art control technology in new ones."


Other states in the lawsuit were California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Vermont and Wisconsin.


Peter Lehner, chief environmental lawyer for New York Attorney General Eliot Spitzer, said the ruling lets states continue to take tough action against polluters, and knocks down a number of changes industry lawyers had sought to further loosen the rules.


Lehner noted the court frowned on the EPA's decision to allow companies not to keep records of their pollution levels if they have reason to think they don't produce enough pollution to trigger enforcement action.


The court directed the agency to either come up with a better justification for the recordkeeping rule or change the provision.


"We think this is a major boost to clean air enforcement, because the court upheld the importance of accountability by polluters and rejected industry arguments to weaken the rules even beyond what EPA wanted," said Lehner.


The decision comes a week after a Richmond, Va., appeals court ruled power plants can pump more pollutants into the air annually when they modernize to run longer operating hours. That panel found the deciding factor was not that the plants in question produced more pollution overall, but that the hourly rate of emissions did not increase.


Friday's decision affects one prong of Northeast states' attack on Bush administration changes to the regulation of industrial pollution.


"We're pleased with (the decision) because it removes obstacles to greater efficiency that previously have hampered refineries from making needed upgrades, and those upgrades help us provide a consistent supply of gasoline," said Susan Hahn, spokeswoman for the American Petroleum Institute.


Another lawsuit, focusing on plant maintenance and upgrades, will be of greater importance to power plants. That case is pending.


EPA Assistant Administrator Jeff Holmstead said the agency "is pleased that the court upheld the key provisions of the new source review program. We believe that these provisions will offer facilities greater flexibility to improve and modernize their operations in ways that will reduce energy use and air pollution."


Source: Associated Press


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