# Court Rejects Bush Administration Plan to Gut Key Clean Air Act



## Hamilton Reef (Jan 20, 2000)

AMERICAN LUNG ASSOCIATION * EARTHJUSTICE * ENVIRONMENTAL DEFENSE
NATURAL RESOURCES DEFENSE COUNCIL * SIERRA CLUB * U.S. PIRG

FOR IMMEDIATE RELEASE

CONTACTS: American Lung Association: Diane Maple, 202/785-3355 
Earthjustice: Howard Fox, 202/841-6656, or Brian Smith, 510/550-6714
Environmental Defense: Janea Scott, 212/616-1267 
NRDC: John Walke, 202/289-2406 or Elliott Negin, 202/289-2405 
Sierra Club: David Willett, 202/675-6279 
U.S. PIRG: Emily Figdor, 202/546-9707

Court Rejects Bush Administration Plan to Gut Key Clean Air Act Safeguard

Ruling Blocks Thousands of Facilities from Increasing Pollution

WASHINGTON (March 17, 2006)  A federal court today killed a Bush administration rule that would have sabotaged a key provision of the Clean Air Act. Agreeing with a coalition of public health and environmental groups, the U.S. Court of Appeals ruled that a loophole the Bush administration adopted for the laws new source review program would have allowed thousands of aging power plants and other industrial facilities to emit more air pollution, threatening the health of millions of Americans. 

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. Indeed, the court stated, EPAs interpretation would produce a strange, if not an indeterminate, result: a law intended to limit increases in air pollution would allow sources operating below applicable emission limits to increase significantly the pollution they emit without government review. The court refused to adopt what it called the Environmental Protection Agencys Humpty Dumpty upside-down world view. (For a copy of the ruling, go to www.earthjustice.org/news/documents/3-06/ERP-ruling-3-17-06.pdf .)

This is a victory for public health, said Howard Fox, an attorney at Earthjustice, which represented six groups in the case. It makes no sense to allow huge multi-multi-million-dollar projects that drastically increase air pollution without installing up-to-date pollution controls or even notifying nearby residents. 

The organizations in the lawsuit 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. PIRG.

Irish eyes are surely smiling  and we all will be breathing easier  with this green court ruling on St. Patricks Day, said John Walke, director of NRDCs Clean Air Program. The court recognized the blarney in the administrations plan to gut a key part of the Clean Air Act and rejected it. Now thousands of dirty facilities will not be able to pollute more.

The Court of Appeals initially issued a stay in December 2003 blocking the loophole from taking effect. If the court had not issued the stay, the new rules would have gone into effect on December 26, 2003, in at least 17 states and territories, including California, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New York, Nevada and Pennsylvania. Industrial facilities in those states would have been able to take advantage of the new air pollution loophole immediately. The remaining states across the country would have been forced to adopt the loophole shortly thereafter.

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

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. The Environmental Protection Agency launched enforcement lawsuits against utility and refinery violators during the latter part of the Clinton administration for pollution increases that had resulted in millions of tons of air pollution.

The Bush administration wanted to derail these enforcement suits and eliminate future actions by changing the rules to allow companies to virtually rebuild their facilities and boost pollution levels without having to meet new source review program requirements. 

The loophole created by the administrations new rule would have allowed more than 20,000 power plants, refineries and other industrial facilities to replace existing equipment with functionally equivalent equipment without undergoing the clean air reviews required by the new source review program if the cost of the replacement did not exceed 20 percent of that of the entire process unit. This exemption would have applied even if a facilitys air pollution increased by thousands or tens of thousands of tons as a result of the replacement.

Todays victory means that thousands of Americans will not have their lives cut short because of the pollution that would have blown through this huge loophole, said Janice Nolen at the American Lung Association. The court could not have told the EPA more clearly that they must follow the Clean Air Act as it is written, not as they wish it were written.

Emily Figdor, U.S. PIRGs clean air advocate, agreed. Todays ruling is a tremendous victory for public health and the environment, she said. The court slammed the door on the Bush administrations attempt to create a gaping loophole in the Clean Air Act for some of the nations worst polluters.


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## Hamilton Reef (Jan 20, 2000)

STATE OF NEW YORK, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
CLEAN AIR IMPLEMENTATION PROJECT, ET AL.,
INTERVENORS

http://pacer.cadc.uscourts.gov/docs/common/opinions/200603/03-1380a.pdf


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## Hamilton Reef (Jan 20, 2000)

Environmental Groups Defend Clinton-Era Clean Air Program Before Supreme Court

http://www.enn.com/today.html?id=11564

November 01, 2006  By Pete Yost, Associated Press

WASHINGTON  Environmental groups are defending a Clinton-era clean air program that the Bush administration is trying to weaken, arguing to the Supreme Court that a power company must install costly pollution controls on its aging coal-fired plants. 

The outcome of the case, Environmental Defense v. Duke Energy Corp., could affect three dozen power plants in 10 states where utility companies are challenging federal requirements under the New Source Review program. 

At issue is whether the 4th U.S. Circuit Court of Appeals had the authority to handle the case when it ruled in favor of Duke. Also in dispute is whether pollution emissions should be calculated hourly, as Duke wants, or annually, as the environmental groups say. 

The enforcement program is aimed at reducing power plant emissions of nitrogen oxide and sulfur dioxide that contribute to smog and acid rain. Retrofitting aging coal-fired plants with the latest pollution-control equipment is costing billions of dollars. 

States where utility companies are challenging federal requirements are Alabama, Indiana, Kentucky, Ohio, Pennsylvania, North Carolina, South Carolina, Tennessee, Virginia and West Virginia. 

Justice also were hearing arguments Wednesday about whether a two-year-old ruling that excludes witness statements to police from trials when the witnesses do not testify should apply to older cases. 

An appeals court said the ruling was retroactive when it threw out Marvin Bockting's 1988 conviction in Nevada for sexually abusing his 6-year-old stepdaughter. The girl's statements to police were used to convict Bockting, but she did not testify at the trial. 

The state appealed; other appeals courts have not applied the 2004 high court ruling retroactively. 

The power plant lawsuit, among several initiated during the Clinton administration, was inherited by President Bush when he took office in 2001. His appointees to the Environmental Protection Agency pursued the air pollution cases, but they decided not to file any new ones. 

A few months after the Duke court victory at the 4th Circuit in Richmond, Va., the Bush administration proposed an industry-friendly rule that is along the lines of what Duke and other utilities always have wanted. 

The Duke case's origins date to the 1970s when Congress amended the Clear Air Act to require installation of expensive pollution equipment on newly constructed power plants. Lawmakers gave older plants a partial exemption, believing that the power industry would be phasing out the older facilities. 

Instead, the companies revamped their aging plants, enabling them to operate hours longer each day, resulting in production of more electricity and the emission of even more pollutants. 

Environmental groups accuse the power companies of gaming the system, engaging in rebuilding while telling regulators they were only doing routine maintenance. 

Duke's lawyers say the company conducted its work on plants "in full view and with the knowledge of" EPA and state regulators. 

Former EPA attorney John Walke, now clean air director of the Natural Resources Defense Council, says the agency discovered what the utilities were doing only after a systematic review that uncovered huge capital expenditures. 

The power plant case is Environmental Defense v. Duke, 05-848. The case on witness statements is Whorton v. Bockting, 05-595.


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## Hamilton Reef (Jan 20, 2000)

FOR IMMEDIATE RELEASE

CONTACT:
Edwin Chen 202-289-2373
John Walke, 202-289-2406

Energy Industry Deceived Public, Supreme Court, Documents Reveal

NRDC Challenges Utility Officials to Come Clean

WASHINGTON (November 2, 2006) -- In oral arguments before the Supreme Court this week, attorneys for the electric power industry claimed they didnt know until 1999 that the government had shifted its legal position to requiring aging coal-fired plants to install state-of-the-art pollution-control equipment. But industry documents released today by the Natural Resources Defense Council (NRDC) reveal a different story.

In fact, since the early 1980s, industry officials have been fully aware of the Environmental Protection Agency requirements to clean up the power plants -- but simply ignored them while the plants continued to emit harmful amounts of air pollutions known to cause asthma, heart and lung disease, and premature death. 

The documents demolish the industrys central defense in the case of Environmental Defense v. Duke Energy Corp., which was argued before the Supreme Court yesterday, said John Walke, a senior attorney and the Clean Air Program director at NRDC.

Duke Energy and other utility industry defendants are attempting to hoodwink the Supreme Court, Walke said. These smoking gun industry documents repeatedly contradict the fairy tale being peddled by utility companies and their attorneys.

In court this week, industry attorneys claimed that EPA launched clean air enforcement cases against coal-fired power plants in 1999 based upon new legal interpretations. The attorneys argued that until then, they and the EPA had been in agreement on the meaning of the law since 1980. As one Duke Energy attorney told the court yesterday: everyone in the industryand outside the industry since 1980 shared that legal interpretation.

Yet the documents -- from Duke Energy, other utility company defendants, and utility industry trade associations and lawyers, and dating to the early 1980s -- flatly contradict the account before the Supreme Court.

The documents reveal that the power plant companies and their attorneys were fully aware of the same longstanding EPA legal interpretations that uphold the governments enforcement cases, Walke said.

Throughout the cases, utility defense attorneys have waged a relentless campaign to keep these and other potentially damning documents from public view. 

Why the cover-up? asked Walke. Make the rest of the documents public and let the American people decide. These utility companies have a responsibility to their shareholders, ratepayers, and communities whose air they pollute to come clean with the truth and to clean up their harmful pollution.

A side-by-side comparison of Duke Energys own words reveals the industrys deceptions. (go to http://www.nrdc.org/media/docs/061102.pdf to see NRDCs comparison of shifting utility industry positions, and http://www.nrdc.org/media/docs/061102a.pdf to see original industry source materials.)


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## Hamilton Reef (Jan 20, 2000)

Court Rejects E.P.A. Limits on Emissions Rules

A federal appeals court on Tuesday threw out an Environmental Protection Agency rule limiting the ability of states to require monitoring of industrial emissions.
The 2-to-1 ruling by the United States Court of Appeals for the District of Columbia Circuit is the most recent in a series of judicial setbacks to the Bush administrations efforts to reshape federal policies under the Clean Air Act.

http://www.nytimes.com/2008/08/20/washington/20air.html?_r=2&oref=slogin&oref=slogin


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