Bush Revisions of Air Pollution Rules Valid, Appellate Court Rules

Published August 1, 2005

The Bush administration won a significant federal court victory, according to environmental policy analysts, when on June 24 the U.S. Court of Appeals for the District of Columbia validated substantial portions of the administration’s revisions to the New Source Review (NSR) provisions of the Clean Air Act.

In a unanimous decision, the three-judge panel rejected the most significant portions of the lawsuit brought by 13 states and assorted environmental activist groups.

Substantial Portions Validated

The court validated the Bush Environmental Protection Agency’s (EPA) rules regarding the calculation of baseline air pollutants that establish the trigger for implementing NSR requirements created by the 1977 Clean Air Act Amendments. NSR is a pre-construction permitting program designed to ensure that all new or modified factories and power plants will be as clean as possible.

The court ruled EPA acted reasonably in determining that an industrial plant that is not a power plant may choose any two consecutive years during the preceding decade to establish the amount of preexisting emissions. Once emission levels exceed the two designated years, facilities must either obtain permits or install state-of-the art pollution controls.

Additionally, the court validated EPA’s Plantwide Applicability Limits, deciding that a change in emissions does not trigger NSR provisions if source-wide emissions remain below the Plantwide Applicability Limits specified in the source’s permit.

The court also invalidated some portions of the EPA rules. Most significantly, it refused to validate an EPA proposal to allow companies not to keep emissions records if they reasonably believe they are not emitting sufficient emissions to trigger enforcement actions. EPA will have to supply a new justification for its proposal or drop it.

Court Slams Command-and-Control

Overall, the decision was seen as a victory for the Bush administration and supporters of its interpretation of the NSR provisions of the Clean Air Act. Stepping back from the particular provisions under review, the court validated EPA’s rationale in preferring market-friendly emissions standards to command-and-control mandates favored by the most left-leaning environmental activist groups.

“This case illustrates some of the painful consequences of reliance on command-and-control regulation in a world where emission control is typically far more expensive, per unit of pollution, when accomplished by retrofitting old plants than by including state-of-the-art control technology in new ones,” wrote Judge Stephen Williams.

“This is a big defeat for those who supported the Clinton era reinterpretation of New Source Review,” said Ben Lieberman, senior policy analyst at The Heritage Foundation. “Some environmentalists may try to put a happy face on a real defeat. But under this decision, the legal status of New Source Review, as interpreted by the Clinton administration, is in serious doubt.”

All Parties Claim Victory

Jeffrey Holmstead, EPA assistant administrator for air and radiation, told the Washington Post on June 25, “We believe that these provisions will offer facilities greater flexibility to improve and modernize their operations in ways that will reduce energy use and air pollution, provide incentives to install state-of-the-art pollution controls, and would more accurately calculate actual emissions of air pollution.”

Environmental activist groups claimed victory based on the record-keeping portion of the court’s decision.

“Today’s ruling sends a clear message to EPA and the Bush administration,” said Earthjustice managing attorney Howard Fox. “Clean up our nation’s air and do not sacrifice our health and our natural resources for corporate convenience.”

Criticisms ‘Unfounded’

“It’s not a total win for the Bush administration, to be sure, as some portions of the revisions were struck down,” said Jonathan Adler, associate professor of law at Case Western University. “But it nonetheless illustrates how many of the environmentalist attacks on the Bush revisions were unfounded. The decision is definitely a setback for those opposing Clean Air Act reform.

“It’s interesting that some environmental groups and those states that challenged the NSR rules are claiming victory,” added Adler. “When the Bush administration proposed its rules, environmentalists and northeastern states charged the rules were illegal and would cause dramatic increases in air pollution.

“Now the D.C. Circuit has upheld the vast bulk of the Bush administration revisions, and Greens are pretending to be pleased as punch. They can’t have it both ways. Either they were exaggerating before, or now they are spinning to cover a disastrous loss.”

James M. Taylor ([email protected]) is managing editor of Environment & Climate News.