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New Pollution Standards Prompt Suit
Published on Wednesday, January 1, 2003 by the Washington Post
Fighting Back
New Pollution Standards Prompt Suit
9 States Challenge U.S. Decision to Relax Rules
by Eric Pianin

Nine northeastern states ranging from Maine to Maryland filed suit yesterday challenging the Bush administration's decision to relax national industrial pollution restrictions for the first time since enactment of the Clean Air Act in 1970.

The Bush administration has taken an action that will bring more acid rain, more smog, more asthma and more respiratory disease to millions of Americans. This action by the Bush administration is a betrayal of the right of Americans to breathe clean, healthy air.

Elliot Spitzer
New York Attorney General
The attorneys general of those states say the administration's rule-making far exceeded its legislative authority under the Clean Air Act and would undermine state efforts to adopt stricter protections.

The legal challenge, filed in the U.S. Court of Appeals for the District of Columbia, came as the Environmental Protection Agency formally issued final revisions to the so-called New Source Review clean air enforcement rules that would effectively preclude future government legal action in all but the most flagrant cases of pollution.

Under the new rules, refineries, manufacturers and some utilities will be presented with new ground rules for upgrading or expanding their plants -- and likely increasing their emissions -- without the threat of lawsuits and without having to add costly antipollution equipment required by law to control smog, acid rain and soot. Older, coal-fired power plants would have far more leeway to perform "routine maintenance" and improvements without triggering legal actions under a separate proposed rule that officials hope to put into effect by late 2003.

EPA Administrator Christine Todd Whitman said recently that the changes would encourage plant improvements and "actually reduce dangerous emissions." But the coalition of New England and mid-Atlantic state officials -- led by New York Attorney General Elliot Spitzer (D) -- said the administration rule-making would neutralize one of the few effective tools for combating industrial pollution and result in dirtier air.

"The Bush administration has taken an action that will bring more acid rain, more smog, more asthma and more respiratory disease to millions of Americans," Spitzer said. "This action by the Bush administration is a betrayal of the right of Americans to breathe clean, healthy air."

Northeastern states are particularly concerned about the rule changes, because they blame much of their air pollution on coal-fired power plants and other industrial sites in the Midwest that spew smog and acid rain-forming pollution into westerly winds. "It seems that the Bush administration's New Year's resolution is to appease the energy industry by sacrificing the lives of people in the Northeast," said Connecticut Attorney General Richard Blumenthal (D).

Other states that joined in the suit include Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island and Vermont.

Bush administration officials suggested that the suit filed by the state officials -- the majority of whom are Democrats -- was politically motivated to try to embarrass President Bush. The officials predicted that the new clean air enforcement rules would withstand any legal challenge. The EPA has said that the changes would eliminate "perverse" effects that kept antiquated plants from being modernized because of concerns about triggering legal action under the Clean Air Act.

"There was a need to make changes in the rules to keep up with how business has changed over the past 25 years," said William Harnett, director of the EPA's New Source Review enforcement program. "The rules we just went final on are things consistent with the law passed by Congress . . . and will lead to greater environmental benefit."

Scott Segal, director of the Electric Reliability Coordinating Council, an alliance of utilities, said the northeastern attorneys general would better serve their states by supporting an updating and clarification of federal clean air enforcement rules, instead of "marching off to the courthouse" to score political points with their constituents. He also suggested that the plaintiffs were engaging in a rivalry with midwestern utilities that produce cheaper energy than plants in the Northeast.

"Nationwide, more governors and attorneys general do support clarification," Segal said. "The northeast attorneys general reflect a minority opinion, unfortunately demonstrating their desire to address economic competitive concerns rather than environmental protection."

Power plant and refinery emissions have been linked to serious illness and premature deaths, and have been a prime target of the government's long-term efforts to clean up the nation's air. The Clean Air Act requires new plants and utilities to install the best available pollution control technology. Aging utilities and refineries are exempt unless they make improvements to extend a plant's life and thereby create a "new source" of emissions.

More than 50 power plants in 12 states -- and scores of refineries across the country -- were sued by federal and state authorities under the New Source Review regulations during the Clinton administration. While vowing to vigorously pursue existing court cases, Whitman has said that "I would hope we would greatly reduce the number of lawsuits" under the new regulations.

Among the new rules challenged by the Northeast states are exemptions of as many as 10 years for operating units at industrial sites that use the best available pollution controls.

The suit also challenge a new emissions test that would allow industries to exempt emission increases attributable to increased demand for their products. The states also oppose a rule allowing a more lenient method for calculating baseline emissions for industrial sites, and another that would exempt from enforcement facilities that increase their emissions but stay within a new, plantwide emissions cap.

The state attorneys general say they are also concerned that at least 12 states -- including New York, New Jersey, New Hampshire and Massachusetts -- will be bound by the new, relaxed standards unless their state legislatures act to toughen the standards. Those states operate under memoranda of understanding with the federal government to accept rule changes approved by the EPA.

© 2003 The Washington Post Company


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