A recent U.S. District Court ruling against the operator of an aging coal-fired power plant in Ohio deserves more attention than it initially received. The Environmental Protection Agency, along with the attorneys general of Connecticut, New Jersey and New York, brought this Clean Air Act lawsuit against the Ohio Edison Company during the Clinton administration's tenure.
The Clean Air Act requires aging power plants to install pollution-control devices whenever they upgrade equipment that increases generating capacity. The only exemption is when upgrading qualifies as routine maintenance. Ohio Edison, like many other power producers, contended that its upgrades were just maintenance. Ohio Edison wanted the definition of ''routine maintenance'' to be very broad.
The three Northeastern states, which suffer from the wind-driven pollution of Midwestern plant emissions (and as was shown last week, the states also share their vulnerability to blackouts), and the EPA claimed that the improvements were, in fact, substantial modifications that lengthened the life of the plant and increased emissions. U.S. District Judge Edmund Sargus agreed.
As noteworthy as the ruling itself, which affirmed the original intent of the Clean Air Act, is the judge's criticism of the EPA: ``[V]arious electric utilities and industry organizations have sought within legal bounds to influence the conduct of the EPA. Given the enormous cost of retrofitting an older electric power plant with new pollution control devices, this strategy should not be unexpected. . . . What should be unexpected and condemned, however, is an agency unwilling to enforce a clear statutory mandate set forth in an act of Congress.''
The judge was referring to policy changes at the EPA under President Bush. While the the EPA was allowed to pursue environmental lawsuits begun during the Clinton era when President Bush entered the White House, his administration viewed actual environmental policy much differently. Under Mr. Bush, the EPA now is engaged in an effort to weaken the very rule that it is fighting to uphold in the Ohio plant case and others like it. The EPA is moving closer to the broad definitions of plant maintenance that the judge rebuffed in the Ohio case.
Thus the EPA effort received this rebuke from Judge Sargus: ''This case highlights an abysmal breakdown in the administrative process.'' He's right. New-source review isn't fundamentally complicated: Old, dirty power plants must eventually be cleaned up. The law can work, and administrative rules aren't broken. It's just that the EPA, under pressure from the industry it is supposed to regulate and an administration that is siding with the industry, has failed to enforce them adequately and now hopes to weaken them considerably. But the judge reiterated the intent of Congress when it passed the Clean Air Act, which was to ensure that these old plants eventually cut back on polluting the air.
The EPA has yet to release its finalized rules on what constitutes routine maintenance. Before it does, officials should take a hard look at the Ohio ruling. Any broad definition of ''routine maintenance'' creates a loophole. If the Clean Air Act is to have any meaning, these 30- and 40-year-old coal plants must be cleaned up. The White House should heed the judge's ruling and empower the EPA to resist pressure from the industry and fully enforce the act. The law was written to protect people's health, and that goal hasn't changed even though the occupants of the White House have.
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