Clean Air Wins a Round

A three-judge panel of the federal district court of appeals for D.C. ruled unanimously yesterday (coverage from WP, NYT, LAT) that a Bush Administration effort to allow "older power plants, refineries and factories to upgrade their facilities without having to install the most advanced pollution controls" contravenes the Clean Air Act and goes against the express intent of Congress.

A victory for fourteen states and numerous advocacy groups which had sued to block the proposed EPA rules, the decision was called "a major victory for clean air and public health" and "a rejection of a flawed policy" by New York Attorney General Eliot Spitzer, who's been leading the charge against the New Source Review plan issued by the EPA back in 2003. Spitzer continued "It will encourage industry to build new and cleaner facilities, instead of prolonging the life of old, dirty plants."

The Washington Post article on the case discusses the main legal issue that the judges dealt with:

"The central question in the case focused on what constitutes an industrial facility 'modification,' because that is what triggers the federal requirement to cut down on the smog or soot emitted by utilities, oil refineries, incinerators, chemical plants and manufacturing operations. Previous administrations, including Bill Clinton's, had interpreted that phrase to encompass any physical activity that increases pollution from a given facility, with the exception of routine maintenance.

EPA officials in the Bush administration sought to broaden this exemption by asserting that 'routine maintenance' is any activity that amounts to less than 20 percent of a plant's value. But the ruling, written by Judge Judith W. Rogers, rejected that reasoning as illogical.

'EPA's approach would ostensibly require that the definition of 'modification' include a phrase such as 'regardless of size, cost, frequency, effect,' or other distinguishing characteristic,' Rogers wrote. 'Only in a Humpty Dumpty world 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.'"

The EPA said it was disappointed in the decision and was reviewing its options. The ruling could go on appeal to the Supreme Court, or Congress could intervene on behalf of the Administration.

It's probably needless to say that I agree wholeheartedly with this ruling. The Bush Administrations' attempts to undo or circumvent the provisions of the Clean Air Act and other environmental laws have been egregious to say the least, and moments like this are important to remember why that whole "separation of powers" thing really is paramount in our governing system.