Bush Administration, Environmentalists Battle Over “New Source Review” Air Rules
Hotline, Fall 2003
by David Fowler, GASP Board Member
Washington, D.C. echoed with loud sounds of battle over American air quality from summer into the early fall, as the Bush administration stepped up its efforts to sap the effectiveness of the federal Clean Air Act in regulating electric power-generating industries.
In late August, the Bush-appointed leadership of the Environmental Protection Agency (EPA) declared that the EPA would adopt a new rule that exempted a generator of electric power from important requirements of New Source Review (NSR), a law adopted by Congress as an amendment to the Clean Air Act in 1977. According to NSR, the EPA requires New Source Review permits and modern pollution controls when major facility modifications result in increased emissions.
However, industries have frequently failed to seek NSR approval when making major equipment changes. On August 7, 2003, an EPA suit in federal court resulted in a finding against such an offender. Judge Edmund Sargus of the U.S. District Court for the Southern District of Ohio found that Ohio Edison, an affiliate of FirstEnergy Corp., violated the Clean Air Act’s NSR provisions by undertaking 11 construction projects at one of its coal-fired plants from 1984 to 1998 without obtaining necessary air pollution permits and installing modern pollution controls on the facility. The Bush-appointed leadership of the EPA followed this action promptly with its ruling weakening NSR.
Defenders of the Clean Air Act and its NSR features countered with promises of new legal action in federal courts. A spokesman for New York Attorney General Eliot Spitzer, who is leading a fight in the federal courts against a previous round of Bush administration NSR changes, joined by attorneys from 12 other states and environmental groups, said that Spitzer would enter a new suit against the latest EPA move. Officials in Pennsylvania, New Jersey, Connecticut, Wisconsin, and Illinois expressed interest in joining such a suit.
An important goal of these prospective litigants is gaining a court-ordered stay of the change in NSR, because the prospect of a settlement in less than two years is dim.
The EPA, in announcing its intention of adopting the new rule, said that the move was based on a thorough review of evidence. However, the General Accounting Office, an investigative agency of Congress, declared in an independent report last month that the EPA lacked hard data to support its decision. Critics of the EPA decision charged that it was based only on anecdotal reports from the industries involved.
Legislators Offer Differing Approaches
While these orders and threats of court resistance were still reverberating, several members of the house of Representatives, Charles Bass (R-NH), Jim Davis (D-FL), and Jim Cooper (D-TN), came forward to offer a new bill for controlling utility pollutants, which reflects an earlier senate bill sponsored by Sen. Tom Carper (D-DE). Both bills reflect a cap and trade approach for utility pollutants including carbon dioxide.
The House measures would set a performance-based pollution limit, or “cap,” in order to reduce power plant emissions of sulfur dioxide by 80 percent, nitrogen dioxide by 69 percent, mercury by 80 percent, and return carbon dioxide to 2001 levels by 2013.
The sponsors argued that while each of the “four-pollutant” bill proposals stop short of fully replacing New Source Review for electricity generation, the bills have the potential to replace what they term NSR’s technology-discouraging rules with standards that instead reward and drive continual improvements in environmental performance.
In a statement released September 16, 2003, Senate Environment and Public Works Committee ranking member Jim Jeffords (I-VT), author of another bill (S.366) with strict pollution caps for SO2, NOx, mercury and CO2, denounced the President’s so-called Clear Skies plan: “Under the President’s plan, acid rain emissions caps come too late and cut too little,” he said. “Their plan will continue the rapid decline of the lakes and forests in the Northeast and across the country. There are other, much better bipartisan proposals before Congress that have greater support.”
EPA to Abandon CO2 Regulation
In still another step backward from air quality regulation, Jeffrey Holmstead,, the EPA’s assistant administrator for air quality, announced in early September that the agency would not regulate the emission of carbon dioxide, a greenhouse gas identified as a main cause of global warning. The reason given: that “carbon dioxide, hydrofluorocarbons and other emissions did not meet the legal definition of “air pollutants” under the Clean Air Act, and could therefore not be regulated by the agency.”