MAC: Mines and Communities

Supreme Court Lets Air Pollution Equipment Ruling Stand

Published by MAC on 2007-04-30

Supreme Court Lets Air Pollution Equipment Ruling Stand


30th April 2007

Today, the Supreme Court decided not to hear pleas by the U.S. Environmental Protection Agency, EPA, and the power industry to resurrect a Clean Air Act loophole that the federal appeals court in Washington struck down unanimously in March 2006.

The loophole would have allowed more than 20,000 power plants, refineries and other industrial facilities to replace existing equipment with "functionally equivalent" equipment without first undergoing the required clean air reviews.

The exemption would have applied even if a facility's air pollution increased by tens of thousands of tons as a result of the new equipment.

The 2006 appellate court decision had denounced the EPA for violating the plain terms of the Clean Air Act. The U.S. Court of Appeals for the District of Columbia Circuit found that the administration's loophole contradicted the purposes of the Clean Air Act.

The Clean Air Act's New Source Review program was designed to curb air pollution from these and other industrial facilities by requiring them to install up-to-date pollution controls whenever they made physical or operational changes that increased air pollution.

Many of the nation's older power plants have operated beyond their expected lifespans, polluting at high levels, because utilities have rebuilt these grandfathered plants over time. Some have modified these facilities in ways that increased air pollution without complying with Clean Air Act requirements to install modern emissions controls.

The EPA launched enforcement lawsuits against utility and refinery violators during the last few years of the Clinton administration for pollution increases.

The Bush administration wanted to derail these enforcement suits and eliminate future actions by changing the rules to allow companies to rebuild their facilities and boost pollution levels without having to meet New Source Review program requirements by allowing "functionally equivalent" equipment.

The plaintiffs winning the case at the appellate level included Alabama Environmental Council, American Lung Association, Clean Air Council, Communities for a Better Environment, Delaware Nature Society, Environmental Defense, Group Against Smog and Pollution, Michigan Environmental Council, Natural Resources Defense Council, NRDC, Ohio Environmental Council, Scenic Hudson, Sierra Club, Southern Alliance for Clean Energy, and U.S. Public Interest Research Group.

The groups were represented by Earthjustice, the Clean Air Task Force and NRDC. A group of 15 state attorneys general, led by the state of New York, was also part of the successful lawsuit.

"Today’s Supreme Court announcement marks the close of one chapter of the Bush administration’s lawless campaign to weaken basic clean air protections," said John Walke, director of NRDC’s Clean Air Program. The Bush EPA should stop pretending our laws can be set aside in favor of fictions they write for industry, and instead focus on protecting the American people against harmful pollution."

"We are grateful, but not surprised, that the Supreme Court has once again reminded EPA that the Clean Air Act says what it means and means what it says. "Significant renovations at old dirty power plants cannot avoid requirements to apply pollution controls," said Ann Weeks, legal director with the Clean Air Task Force.

Earthjustice attorney Keri Powell said, "The Bush administration is on notice that it cannot expect our nation’s courts to look the other way while it flouts the Clean Air Act."

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