June 24, 2005

Contact: Joseph Otis Minott, Esq.
(215) 567-4004 ext. 116

Federal Court Strikes Down EPA’s Clean Air Rollbacks
Ruling a Major Victory for Public Health in Pennsylvania

Washington, DC – The Environmental Protection Agency illegally weakened the air quality safeguards that apply to aging power plants and other large industrial facilities, a federal appeals court said in a decision issued earlier today. The ruling came in a lawsuit brought by Clean Air Council and other government and nonprofit organizations.

“This ruling is a major victory for public health in Pennsylvania,” said Joseph Otis Minott, Esq., Executive Director of Clean Air Council, a statewide environmental group. “The court has agreed that the Bush administration has gone too far in its attempts to re-write the nation’s environmental laws in favor of big energy companies.”

At issue was a set of loopholes EPA carved into an important Clean Air Act program that governs when coal-fired power plants and sources of air pollution must clean up. The program, known as “new source review,” limits the amount of harmful soot and smog in the air by requiring major polluters to meet modern emissions standards whenever they make changes to their facilities that result in additional air pollution. EPA’s 2002 loopholes exempted broad categories of changes from regulation – even when the changes would result in more pollution – and allowed industry to underestimate its emissions.

In today’s ruling, the U.S. Court of Appeals for the District of Columbia Circuit struck down two EPA loopholes that allowed certain types of plant renovations to escape review. The exemptions violated the law and threatened the environment by turning a blind eye to the dangerous emissions increases that are associated with such projects.

The court also rejected a legal argument made by power companies and other industry groups that would have excluded almost all emissions-increasing changes from regulation, regardless of their impact on air quality.

“If the power companies got their way, one of the Clean Air Act’s most important air quality protections would have been basically eliminated,” said Minott. “By rejecting industry’s interpretation of the law, the Court has come down in favor of protecting public health.”

Air pollution from power plants and other industrial sources is responsible for asthma attacks, respiratory disease, heart attacks, and premature death suffered by hundreds of thousand of Americans every year. The new source review program, which applies to more than 20,000 large facilities nationwide, is essential to controlling these dangerous emissions. If EPA fully enforced new source review at coal-fired power plants, at least 5,500 premature deaths and 80,000 asthma attacks would be avoided annually.

Clean Air Council was represented in the suit by the Clean Air Task Force, which also represented the Alabama Environmental Council, the Group Against Smog and Pollution, Michigan Environmental Council, Ohio Environmental Council, Scenic Hudson, and the Southern Alliance for Clean Energy.

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BACKGROUND INFORMATION:

* NSR decision - http://www.cleartheair.org/documents/02-1387a.pdf

* Excerpts from today's decision:

Page 8

"Specifically, EPA erred in promulgating the Clean Unit applicability test, which measures emissions increases by looking to whether "emissions limitations" have changed. Congress directed the agency to measure emissions increases in terms of changes in actual emissions. EPA also erred in exempting from NSR certain Pollution Control Projects ("PCPs") that decrease emissions of some pollutants but cause collateral increases of others...."

Page 64

"Therefore, because the plain language of the CAA indicates That Congress intended to apply NSR to changes that increase actual emissions instead of potential or allowable emissions, we hold that EPA lacks authority to promulgate the Clean Unit provision, and we vacate that portion of the 2002 rule."

Page 65 and 67

"...Absent clear congressional delegation, however, EPA lacks authority to create an exemption from NSR by administrative rule. Indeed, "this court has consistently struck down administrative narrowing of clear statutory mandates." [see Sierra Club V. EPA, (DC Cir. 1997)]...Therefore we hold that EPA lacks authority to create PCP exemptions from NSR, and we vacate those parts of the 1992 and 2002 rules..."