Court blocks air pollution regulation

Maryland, 11 states seek to prevent rules changes

December 25, 2003|By Howard Libit | Howard Libit,SUN STAFF

Maryland and 11 other states challenging the Bush administration's new air pollution rules won an injunction in federal court yesterday blocking some of the most critical regulations from taking effect.

The order from the U.S. Circuit Court of Appeals for the District of Columbia stops the Environmental Protection Agency from putting in place this week changes to the Clean Air Act regarding coal-fired power plants and other industrial facilities.

"We are pleased with the court's ruling," said Richard McIntire, a spokesman for Maryland Department of the Environment. "This will give Maryland as well as the other states a chance to fully air our concerns."

Maryland officials say that pollutants from electric plants, refineries and other facilities in the Midwest - carried east by the prevailing winds - are major contributors to poor air quality here and in other Northeastern states. Dirty air also contributes about a third of the harmful nitrogen pollution in the Chesapeake Bay.

The new EPA regulations would make it easier for plant operators to make repairs or install new equipment without costly environmental reviews and upgrades to cut pollution.

The current rules require environmental reviews if a planned upgrade goes beyond "routine maintenance." The changes would permit plant operators to spend up to 20 percent of the value of their plants on repairs or upgrades without triggering the reviews.

Federal officials and electric utilities argue that the new rules would clarify existing law and encourage plant operators to make efficiency upgrades - saving money and energy - without making expensive alterations to cut pollution.

The attorneys general for 12 states - Maryland, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin - filed the lawsuit this fall to prevent the rule changes from taking effect.

They were joined by many Northeastern cities, as well as a variety of environmental and health advocacy organizations.

Opponents of the Bush administration changes argue that they would increase pollution by allowing power plants to expand without installing the most modern equipment to limit dangerous emissions - thus violating the Clean Air Act.

The three-judge federal appeals court panel said the challengers "demonstrated the irreparable harm and likelihood of success" of their case, findings that are required to stop the rule change from taking effect.

The injunction lasts until the court hears full legal arguments from the opponents, a process that could take months.

Some of the states challenging the EPA rules change also are angry because the agency recently has declined to pursue more than 50 investigations into power plants that have allegedly violated the Clean Air Act.

EPA spokeswoman Cynthia Bergman expressed disappointment with yesterday's ruling. She said it was still being reviewed by agency officials.

She said the rule was "intended to clarify the process for maintaining and operating a facility" but it emphatically "does not allow power plants to increase their emissions past their current Clean Air Act limits."

"In fact, this rule will have little or no impact on emissions," she said.

A spokesman for Gov. Robert L. Ehrlich Jr. declined to comment yesterday, saying the administration had not yet had a chance to read the court's ruling. No one from the office of Maryland Attorney General J. Joseph Curran Jr. returned phone calls yesterday afternoon.

Tom Reilly, the Massachusetts attorney general, said the court had "forced EPA to take back its early Christmas present to the coal-fired power plants in the Midwest."

Eliot Spitzer, New York's attorney general, called it "a major decision."

"When it comes to environmental policy, this court decision is as big a success as we've had in stopping the Bush administration from undercutting the Clean Air Act," he said.

An electric industry spokesman sharply criticized the court's action yesterday.

"While granting a stay of the equipment replacement rule is a setback for energy [efficiency] and environmental protection, we are confident that the court will uphold the rule when the rule is properly before the court," said Scott Segal, director of the Electric Reliability Coordinating Council.

"The attorneys general of the Northeast have long led an effort to put endless litigation in front of environmental protection," Segal said. "In this case, they have temporarily delayed a rule that would have spurred maintenance activities necessary for emissions control, workplace safety, energy conservation and electric reliability."

But Brad Heavner, director of the Maryland Public Interest Research Group, praised the court's action.

"We are pleased to hear that the court has slowed down this dirty and dangerous policy," Heavner said. "It's just fundamentally unfair to allow power plants to continue to pollute at 1960s levels.

"The energy companies are finding it more profitable to exploit loopholes than transform their operations into modern, cleaner power plants."

In yesterday's ruling, the panel of judges also rejected a plea by the states for reconsideration of an earlier decision on other EPA Clean Air Act changes, which included giving more flexibility to power plants in their calculation of pollution levels.

The Associated Press contributed to this article.

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