Air Law Back Together

Maine and 13 other states won a major victory last week when a federal court rejected “a Humpty Dumpty world” view of pollution control that resulted in the weakening of the Clean Air act. Despite this victory, the Bush administration is still trying to put the pieces of its environmental law changes back together again, so Maine’s congressional delegation is wise to continue to oppose legislative action to circumvent the court’s ruling while seeking support for better alternatives.

Two years ago, the Environmental Protection Agency changed clean air rules to allow power plants and manufacturing facilities to make major upgrades without installing new emissions controls. Under a portion of the Clean Air Act known as “new source review” older plants were allowed to meet lower air quality standards under the assumption that they would be out of business in a few years. If they remained in business, they were required to install pollution control equipment when they upgraded their facilities. More than 30 years later, many of these plants are still in operation and have yet to install new emissions equipment allowing tons of additional pollution, some of which is blown into Maine.

The Clean Air Act said that when a plant makes “any physical change” that increases emissions, they must undergo the new source review process. It was understood that routine maintenance and repairs did not count. Under the Bush administration, the EPA changed the new source review rule to allow plant upgrades up to 20 percent of its replacement cost without installing new emissions equipment, meaning a plant could be totally rebuilt in five years.

In a 20-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit rejected the EPA’s argument that the word “any” was unclear. It called the agency’s position a “Humpty Dumpty” world view (a nod to Lewis Carroll’s “Through the Looking Glass” in which Humpty Dumpty tells Alice that a word means what he chooses it to mean).

“EPA’s interpretation,” the ruling said, “would produce a ‘strange,’ if not an ‘indeterminate,’ result: a law intended to limit increases in air pollution would allow sources operating below applicable emissions limits to increase significantly the pollution they emit without government review.”

As a result the court said the agency’s changes to the new source review standard violated the Clean Air Act. The court in 2003 had stayed the new rules so the old ones remain in effect.

While the court ruling is good news, at the same time the EPA changed the NSR rules it announced that it was dropping scores of enforcement actions involving violations of the old rules. Several of the largest violators stopped settlement negotiations shortly after the Bush administration took office, focusing their attention on rule changes instead.

Republicans in Congress are expected to try to change the NSR rules legislatively. Maine’s delegation has long opposed such changes, but must continue to do so. Rep. Tom Allen has sponsored a bill to close the loophole that allows old plants to remain in operation as would the Clean Power Act, sponsored by Sen. Susan Collins.

The court made it clear that attempts to allow more air pollution violate federal law. This is a good reason to focus on enforcing existing rules while seeking ways to reduce emissions.