Federal Appeals Court Won’t Delay New Source Review

Published May 1, 2003

Nine Democratic state attorneys general have failed in their efforts to delay implementation of reforms to the Environmental Protection Agency’s New Source Review (NSR) program.

On March 6, a two-judge panel of the U.S. Court of Appeals for the District of Columbia ruled implementation of the reforms could begin before a panel of the court decides a lawsuit, filed by the same attorneys general, challenging the legality of the reforms.

The two judges rejected the Democrats’ “emergency motion to stay” the reforms.

The attorneys general alleged an emergency stay was warranted because the lawsuit would likely show EPA’s NSR reforms violate federal law. The Democrats also argued implementation of the reforms prior to a full trial on the merits would cause irreparable harm.

While most states are not required to implement NSR reforms until 2005, 13 designated states, the District of Columbia, and several local air districts in California were required to implement the reforms by March 3, 2003. The 13 affected states are Hawaii, Illinois, Indiana, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, South Dakota, and Washington.

Attorneys General Divided on Reform

In support of their lawsuit, the nine attorneys general argue the NSR reforms impermissibly allow for substantial increases in regulated pollutants. EPA counters the reforms give regulated facilities the flexibility to reduce pollutants using measures that will not hurt the plants’ economic viability.

Attorneys general for eight states–Indiana, Kansas, Nebraska, North Dakota, South Carolina, South Dakota, Utah, and Virginia–filed briefs in support of EPA and its NSR reforms.

The court challenge follows unsuccessful efforts by Congressional Democrats to slow implementation of the reforms. Senator John Edwards (D-North Carolina) attempted but failed in January to attach to an appropriations bill a rider that would delay implementation of the NSR reforms until the National Academy of Sciences could consider and report on them.

Bill Becker, executive director of the States and Territorial Air Pollution Program Administrators and Association of Local Air Pollution Control Officials, asserted that even if the reforms are legal, state attorneys general have legitimate concerns over applicability, enforcement, record keeping, and new reporting standards.

With the appellate court’s rejection of the emergency motion, the NSR reforms will go forward, at least until a three-judge panel of the court hears arguments on the legality of the reforms.

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