This article from today's NYT reports on a federal appeals court ruling
on the Bush administration's 2002 administrative revisions of the Clean
Air Act, challenged by a group of states. The article paints the ruling
as primarily supporting the Bush changes, which made it easier for
utilities to avoid adding pollution control equipment to power plants
when they rebuild or increase capacity, however some of the plaintiffs--
including New York's Eliot Spitzer-- paint it as primarily positive.
What emerges from that fog for me is that the ruling was mixed, but that
the power companies preserved most of what they wanted.
Two members of the three-member panel were Clinton appointees.
--
U.S. Court Backs Bush's Changes on Clean Air Act
By MICHAEL JANOFSKY
WASHINGTON, June 24 - A federal appeals court sided with the Bush
administration on Friday, upholding its revisions of the Clean Air Act
to allow plant operators to modernize without installing expensive new
pollution control equipment. The ruling turned back challenges to the
revisions by New York, California and a dozen other states.
In upholding central provisions of the regulations known as New Source
Review, the court concluded that the Environmental Protection Agency had
acted within its rights in issuing rules in 2002 that allowed operators
of power plants, refineries, and factories greater flexibility in
controlling emissions of air pollutants than they had previously.
Representatives of the electric power industry, which had strongly
supported the new regulations, hailed the ruling as a victory. The new
rules require owners of older plants to upgrade emission-control
equipment to standards for new plants only if they make substantial
improvements. Plant owners and the E.P.A. have consistently disagreed
over how to differentiate between routine maintenance and large-scale
upgrades.
Jeffrey Holmstead, the agency's assistant administrator for air and
radiation, said the court "recognized the value of common sense reforms"
included in the new rules. Mr. Holmstead noted that the panel "simply
did not buy" the argument made by the states and other critics that
allowing the rules' provisions to remain intact would cause
"environmental devastation."
The ruling was issued in a unanimous opinion by a three-judge panel of
the United States Court of Appeals for the District of Columbia Circuit.
But the court also said that the E.P.A., in issuing the rules, had
exceeded its authority in several areas, and representatives of the
states and environmental groups also said they found enough to their
liking in the 73-page opinion to claim successes.
Eliot Spitzer, the New York attorney general, said in an interview that
the ruling was "a win for us." Echoing a view expressed by environmental
groups who were also involved in the case, Mr. Spitzer added: "Anybody
who cares about the quality of air can view the case a victory for
enforcement and continued aggressive action to limit the violations of
the Clean Air Act by power companies."
The revisions addressed in the court ruling are highly technical in
nature and have been under legal assault since they became final in late
2002. Challenges to federal administrative rules bypass trial courts and
proceed directly into the appeals court.
The states, along with a dozen environmental groups, challenged some
areas of the revisions, arguing that they reflected an administration
that was too cozy with industry and that allowing plant operators more
latitude would leave the air dirtier. Industry groups challenged other
parts of the regulations as too onerous, warning that they would require
plant operators to spend billions of dollars in upgrades and pass the
costs on to consumers.
As the respondent in the case, the E.P.A. argued that the revisions were
appropriate and fair.
The court agreed with no one entirely, as the three judges closely
examined the areas under assault to determine whether the agency's
interpretation exceeded the limits of the Clean Air Act.
The ruling is likely to have an impact in other cases pending in courts
around the country involving the administration's rules on emission
controls, including several cases in which New York is suing power
companies.
The ruling also sets up a possible Supreme Court review on the issue
because of at least one other ruling, by the United States Court of
Appeals for the Fourth Circuit, in Richmond, Va., last week involving
Duke Energy.
David McIntosh, a lawyer for the Natural Resources Defense Council, one
of the challengers, said, "The polluter-friendly loopholes that the
court struck down would have led to more asthma attacks, more
hospitalizations and more sick days."
But Scott Segal, director of the Electric Reliability Coordinating
Council, a trade organization, suggested that the environmentalists and
states had misread a ruling that, by leaving sections unchanged,
affirmed positions held by industry groups.
"On the whole, today is a very good day for common sense reform of the
N.S.R. program," Mr. Segal said. "As industries invest, one of the key
impediments is that investment in new technology can trigger a punitive
response from regulators. Today's decision brings certainty to major
reform efforts."
The nature of the regulations under review by the court is intricate,
and officials with otherwise opposing views cited the same part of the
court ruling as a reason to claim victory. For example, the court denied
an effort by a gold-mining company to change a provision that allows
plant operators to select average emissions from any two consecutive
years from the last 10 as a baseline toward measuring future emission
levels.
The mining company argued that its economic cycles are longer than 10
years, and that measuring emission levels should take that into account.
Industry groups hailed the court ruling on this provision as a triumph
for them because it would allow plant operators to pick a low two-year
average. Then, if emission levels fell because of an economic downtown
and reduced consumer demand, the operator would not be held to what
might be only a temporarily low emissions level.
Yet environmentalists also found benefits in the ruling, pointing out
that the so-called "10-year look-back" provision does not apply to power
plants, which account for the vast majority of industrial pollution.
These are among the provisions that the court let stand, ruling that
they were "not otherwise arbitrary and capricious":
¶In measuring increases of emissions, plant operators have to consider
actual past and projected emission levels, not emission levels based on
the potential output of a plant.
¶If an unexpected demand leads to suddenly higher emissions - a
possibility that could arise with a prolonged heat wave, for example -
the elevated levels would not be counted against the plant operators for
purposes of measuring future emission levels against past levels.
¶Plants with multiple sources of pollution can count the aggregate
levels of emissions for measurement comparisons.
Among the provisions struck down was a decision by the agency to allow
plants to avoid keeping records of their emissions if the plants do not
anticipate a change in emission level that would spur New Source Review.
The judges said the agency "acted arbitrarily and capriciously" in
exempting those plants from keeping the same kinds of records required
of other plants.
The three-judge panel included Stephen F. Williams, a senior judge who
was appointed by President Ronald Reagan; and two judges who were
appointed by President Bill Clinton, Judith W. Rogers and David S. Tatel.
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