Court deals blow to EPA's relaxed rule on air emissions

The US Environmental Protection Agency will probably have to go back to the drawing board now that a US appeals court has said aging power plants and other industrial sites must meet the same federal pollution standards as new plants.

Friday's decision represents a repudiation of EPA policy under the Bush administration, which sought to exempt plants that predated the 1970 Clean Air Act from compliance with the tougher air-emission standards. It was cheered by environmentalists - especially those who live and work near such power plants.

One, Lisa Graves Marcucci, a mother and clean-air activist who lives near Pittsburgh, says the ruling gives her hope that EPA investigations of nearby aging power plants, which the agency halted a few years ago, will resume.

"It's a huge victory for people like us because, when we see a ruling like this, it gives us hope that facts and figures and law will dictate a fair outcome rather than pressure from lobbyists," she says.

The ruling, however, is a setback for industries, which may now be required to install expensive new emissions-cutting equipment. It could also initiate endless reviews of their plants, they say.

"Today's decision ... is disappointing," said Scott Segal, director of the Electric Reliability Coordinating Council, in a statement. "What benefit comes from today's decision? Certainly none for the environment."

The ruling could prompt some big utility companies to upgrade pollution controls at the oldest, most polluting power plants, or shut them down.

"The language of the court's decision is very, very strong," says Eric Schaeffer of the Environmental Integrity Project, a New York environmental group. "The EPA's excuses, always pretty thin, have gone away. We now know this rule is going to go forward, and that these guys will have to get permits, and clean up their emissions."

Many older power plants had their sulfur-dioxide and nitrous oxide emission levels "grandfathered," or accommodated, under the Clean Air Act of 1970.

Under the EPA's "new source review" (NSR) rules, these plants weren't required to bolt on costly new air-pollution equipment in the 1970s. But NSR, as interpreted until about five years ago, subjected older plants to the more stringent contemporary pollution standards if their facilities were upgraded at any point and emissions increased.

The utility industry and the EPA under the Bush administration have argued that many plant modifications, including those that previously would have trigged NSR, did not bring about a review - even when higher emission levels were the result.

The United States Court of Appeals for the District of Columbia Circuit disagreed with the EPA. "The EPA's interpretation would produce a 'strange' ... result," the judges wrote. "A law intended to limit increases in air pollution would allow sources ... to increase significantly the pollution they emit without government review." [Editor's note: The original version misidentified the court that handed down the decision.]

The EPA could appeal the decision to the US Supreme Court.

Since President Bush took office, the EPA has held a looser interpretation of NSR. In 2003 the agency withdrew from scores of NSR investigations and a number of court cases, and refused to press 20 such cases that had been recommended to the Justice Department for prosecution, Mr. Schaeffer says.