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Court Backs N.J. In Fight on Emissions ; Blocks Bush Power Plant Rule

Posted on: Monday, 20 March 2006, 15:00 CST

By ALEX NUSSBAUM, STAFF WRITER

A federal appeals court sided with New Jersey and 13 other states Friday, blocking a Bush administration rule that opponents said would lead to more air pollution from the nation's power plants and factories.

State officials and environmental groups hailed the decision, saying the changes proposed by the Environmental Protection Agency would have let thousands of industrial plants avoid adding emissions controls.

"The EPA's interpretation of the rule would have allowed aging coal-fired power plants, many located in the Midwest, to continue to emit millions of tons of hazardous emissions that wind up in New Jersey," Governor Corzine said in a statement.

An environmental attorney for New York State, which led the three- year legal fight, said the decision applied to about 800 power plants and up to 17,000 industrial facilities nationwide and would help reduce emissions blamed for as many as 30,000 deaths in the U.S. annually.

Industry groups, however, said the ruling would do little to help air quality.

"The decision is a step backward," said Scott Segal, director of the Electric Reliability Coordinating Council, a Washington group representing power generators. "What is it the environmental community thinks they've won? They've won the ability to place roadblocks in front of energy efficiency projects. This is terrible news."

The EPA said it was "disappointed" with the ruling but declined to comment further before reviewing the decision. The agency had said its proposal would make it easier to upgrade generators and industrial plants and improve efficiency at lower costs, without threatening public health.

The rule would have rewritten the federal Clean Air Act. That law currently exempts older plants from having to add expensive pollution equipment as long as companies do nothing to increase emissions or extend the lifespan of those plants.

The act does, however, allow for "routine maintenance" to keep a plant running. The Bush administration wanted to redefine that term to include any change that costs less than 20 percent of the value of the facility. State and local officials sued, saying the rule could let dirty power plants avoid cleaning up their emissions forever.

On Friday, the U.S. Court of Appeals in Washington rejected the plan as "contrary to the plain language" of the Clean Air Act.

Judge Judith Rogers, writing for a three-judge panel, found that the new language would have produced a "strange" result: A law "intended to limit increases in air pollution would allow sources ... to increase significantly the pollution they can emit without government review."

Health and environmental groups had joined in opposing the EPA.

"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."

Activists said they hoped the ruling would prompt pollution cuts at facilities around the country. New Jersey is currently in court seeking to force reductions at 18 power plants across the Midwest, and in each case, the utilities had cited the new EPA proposal as a defense against having to make changes.

But the states and White House are already gearing up for another fight: The EPA has proposed another rule that would still protect many big polluters, the state Department of Environmental Protection said.

"In essence EPA is taking the shotgun approach to exempting existing plants from upgrading air pollution control," said Elaine Makatura, a DEP spokeswoman.

***

Legal battle

What's new: A federal appeals court rejected a Bush administration plan to give power plants more leeway in adding pollution controls.

What's next: The EPA could appeal.

***

This article contains material from the Associated Press.

E-mail: nussbaum@northjersey.com

Source: Record, The; Bergen County, N.J.

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