Xcel's South Platte power plant in Denver can operate on natural gas or fuel oil. (Photo/pbo31, Flickr)
Under the proposed rule, power plants would be able to measure their rate of emissions on an hourly basis instead of their annual total output. As long as the hourly emissions stay at or below the plant’s established maximum, the plant would be treated as if it were operating cleanly — even if its total annual emissions increased as plant managers stepped up output.
Under the current policy, power plants that seek to operate longer must install pollution-control equipment. The proposed rule, expected to be finalized in the next two weeks, would increase the life span of older power plants without owners having to install costly new pollution-control equipment.
The rule, though, may be in conflict with a 2007 Supreme Court case, Environmental Defense v. Duke Energy Corp. In a 9-0 ruling, the justices decided that the Clean Air Act required Duke Energy to install pollution-control equipment if its annual pollution output increased. The court made clear that power plants must measure their pollution based on annual output, not an hourly rate.
The proposed power-plant rule marks a final attempt by the Bush administration to radically revise the way environmental laws are applied, especially the Clean Air Act. Throughout his presidency, George W. Bush has sought to weaken the traditional regulatory authority of many federal agencies — like the Food and Drug Admin. and Consumer Product Safety Commission — to make them more friendly to business. This anti-regulatory stand has had perhaps its most sweeping effect on the EPA.
But the administration’s drive to weaken environment safeguards has gotten it into legal trouble. Since Bush took office in 2001, the EPA has issued 27 air-pollution regulations. Seventeen were either partly or entirely thrown out by the D.C. circuit court, which oversees cases involving federal regulation. One, the Duke Energy case, was reversed by the Supreme Court.
In many of the rulings, judges used caustic language in striking down the administration’s position. They lectured EPA officials on elementary legal principles, like the importance of carefully reading the language of a law. The agency has been compared to Humpty Dumpty and the Queen of Hearts in “Alice in Wonderland.”
Not only judges have given the administration a tongue-lashing. Sen. Barbara Boxer (D-Calif.) and Rep. Henry A. Waxman, (D-Calif.), the chairman of the House Committee on Oversight and Government Reform, have repeatedly charged that the EPA is undermining the spirit of the Clean Air Act, which passed in 1963 and was strengthened in 1977 and 1990.
Boxer and Waxman have vowed to fight the proposed power-plant regulation. They may well have an ally in the federal court system.
“EPA historically has great credibility in federal courts,” said E. Donald Elliot, who was the agency’s chief lawyer during the George H.W. Bush administration and is now in private practice. “But it has recently had a pretty abysmal record. It has lost the confidence of the courts.”
The easing of pollution controls on power plants stems from an interpretation of “new source review” rules outlined in the Clean Air Act. The law says that before an industry can create a new source of air pollution, the EPA must review it.
In this case, coal-fired power plants — 70 percent of which are between 27 and 57 years old — could install new equipment that would allow them to operate for longer periods of time. Increased operational hours would lead to more emissions of chemical compounds, like nitrogen oxide, that produce smog.
To avoid EPA review — likely to result in the plants having to install pollution-control equipment– the new regulation would measure pollution at an hourly rate.
“We’re changing the way we evaluate totals, not the amount of pollution put out by plants,” said Jonathan Shradar, an EPA spokesman.
But the change in how totals are evaluated could go against Environmental Defense v. Duke Energy Corp.
In that case, Duke Energy, which operates power plants in North and South Carolina, upgraded its plants to keep them running longer hours, resulting in more pollution emissions.
The company contended that it did not have to submit its plant modifications to the EPA for review because its hourly rate of emissions had stayed steady. In rejecting that argument, Justice David Souter wrote that the relevant Clean Air Act provisions “clearly do not define a major modification in terms of an increase in the hourly emissions rate.”
“Each of the thresholds,” Souter continued, “is described in tons per year.”
Environmental lawyers see no reason why the administration’s new power plant regulation would be judged any differently.
“This is the latest in a long line of EPA rules regarding coal-fired power plants that will be overturned,” predicted Jennifer Peterson, an attorney at the Environmental Integrity Project, which specializes in clean-air litigation.
One such rule is the 2006 D.C. circuit court decision, New York v. EPA. In that case, the court decided that the EPA misread a Clean Air Act provision that says “any physical change” in a power plant that increases pollutants requires the power plant to install pollution control equipment.
EPA said that the word “any” was superfluous and that the agency can decide when physical changes are big enough to merit regulation. The D.C. circuit court found EPA’s logical unfathomable.
“Only in a Humpty Dumpty world,” wrote Judge Judith Rogers, “would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use. We decline to adopt such a world view.”
Shrader, the EPA spokesman, declined to go into why the new power plant rule would pass legal muster. He pointed out that the EPA is still working on the rule, and language has not been finalized.
EPA has not only lost 18 of 27 clean air court decisions, fully13 of those cases were rejected as contrary to the language of the Clean Air Act. At times, EPA’s defiance of the Clean Air Act has appeared to exasperate the court.
In overturning an EPA rule that allowed some power plants to exceed limits on mercury emissions, the court compared the EPA with the Queen of Hearts from Lewis Carroll’s “Alice in Wonderland.” The Queen disregarded laws and proclaimed “off with her head” before a verdict was issued.
In reversing EPA’s loosening of when industrial plants need to seek emission permits, the court implored EPA regulators to do three things: “(1) read the statute; (2) read the statute, (3) read the statute.”
“Repeated losses on plain language grounds,” wrote Waxman, the oversight chairman, in a letter to Stephen Johnson, the EPA administrator, “suggest a reckless determination to pursue the administration’s policy objectives regardless of legal limits.”
Waxman added that he was “gravely concerned” about the proposed regulation to change how power plant pollution is measured. Meanwhile, Boxer, (D-Calif.) chairman of the Senate Environmental and Public Works Committee, said she will investigate EPA if the regulation is finalized.
Environmentalists who are veterans to battling EPA over air regulations say that the Bush administration is unique in its flouting of environmental law.
“I’ve never seen such a sheer volume of cases and such a dismal track record by the EPA in court,” said Frank O’Donnell, president of Clean Air Watch. “They’ve lost so many cases that you either have to conclude their lawyers are idiots or their polices are illegal. I’d go with the second.”
Elliot, the EPA’s counsel during the George H.W. Bush administration, also said that the number of court losses is without precedent.
“The administration has intentionally pushed the limits of its discretion,” Elliot said. “They do things that might make sense from a policy perspective but not from the language of the statute.”
The result, Elliot said, was that the “good reputation of EPA” has been lost in the D.C. court.
But while this Bush administration has not succeeded in changing the legal reading of the Clean Air Act, critics contend that its actions have had a strong effect on air pollution regulation.
“The failure to weaken rules should be celebrated,” said John Walke, a senior attorney at the National Resources Defense Council who has litigated several cases against Bush’s EPA. “But the failure to carry out the Clean Air Act has enormous public-health consequences.”
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