Ten States Seek To Put New Dirty Air Rules On Hold

Ten states today filed an emergency motion for a stay, seeking a court order to halt the implementation of recently announced changes to the Clean Air Act which the states contend will cause irreparable harm by seriously damaging air quality.

As the states argue in the stay motion, the recently promulgated rules by the U.S. Environmental Protection Agency (EPA) would exempt numerous factories and power plants from having to reduce their air pollution. Published on December 31, 2002, the new rules are to take effect March 3, 2003. Once the rules are in effect, states may immediately need to begin incorporating the reforms into their own programs and some states will have to immediately change the way they regulate major polluters. The ensuing confusion will increase costs and delays and compromise enforcement efforts. In addition, companies in some states will immediately be able to avoid installation of state-of-the-art pollution controls that would be required but for the new regulatory loopholes.

The states originally filed suit in the U.S. Court of Appeals for the District of Columbia Circuit immediately after the rules were published. The lawsuit argues that the exceptions to the New Source Review (NSR) program of the Clean Air Act are beyond EPA's legal authority and contrary to the law. Because there will not be a decision in that lawsuit for many months, the states are seeking a stay of the new rules both to prevent additional pollution from harming their communities before the case is decided and to prevent confusion if the new rules are implemented and later thrown out by the court. The stay application was filed with the same court that is hearing the underlying lawsuit, and seeks a ruling on the stay request before the rules take effect.

The Bush Administration's changes to the NSR provisions of the Clean Air Act would exempt numerous air pollution sources, including many coal-fired power plants, from having to install modern air pollution controls. NSR is the foundation for a series of lawsuits brought by the states, the EPA and environmental groups in 1999, 2000 and 2001 against dozens of coal-fired power plants and industrial sources that are emitting huge quantities of nitrogen oxide and sulfur dioxide, which contribute significantly to acid rain, urban smog and respiratory disease across the nation.

NSR requires old facilities that modernize or expand, and thus increase emissions, to install the same pollution controls that new facilities are required to have. The new rules would change how emissions increases are measured, effectively allowing actual increases to be ignored. They would also exempt many plant activities from the NSR program.

New York Attorney General Spitzer said: "The Bush Administration continues to attack the laws protecting our nation's air at a time when the Administration should be moving to reduce the public's exposure to dangerous air pollution. I will do all I can to ensure that our environmental laws are not undermined by the Bush Administration and its allies in the coal and oil industries."

New Jersey Attorney General David Samson said: "We are committed to fighting these new rules, which will subject New Jersey and the other Northeastern states to increased air pollution from out-of-state dirty power plants and factories. We will take whatever legal action is necessary to protect our environment and the health of our residents."

Vermont Attorney General William Sorrell said: "What can be more important than breathing clean air? Putting a hold on regulations that would allow more toxins in our air while litigation goes forward only makes sense."

Connecticut Attorney General Richard Blumenthal said: "To rush these rules will simply cause more acid rain and smog, more asthma and respiratory disease, more damage to health and air quality. The Bush Administration tirelessly disrespects the rights of states seeking to protect their health and environment – diverting resources and energy away from law enforcement duties we should pursue in common to improve air quality. These new NSR rules are a presidential pardon for coal-burning polluters – illegal concessions to special interests that the court should put on hold while it considers our claim."

Massachusetts Attorney General Tom Reilly said: "These new regulations weaken the Clean Air Act and threaten the health of Massachusetts' residents as well as millions of Americans in the coming years with the creation of dirtier air, more smog and pollution. We will not sit back and allow the Bush Administration to put the industry's short-term interests before the health of the American people."

Rhode Island Attorney General Patrick C. Lynch said: "We must take every available route to repel the Bush Administration's shameful attempt to sabotage the Clean Air Act. Over the past eight months, this administration has ignored the expressed concerns of Rhode Island and the Northeast states about the increased industrial pollution that this would cause. By imposing mandatory regulatory changes, the Bush Administration seems bent on gutting the Clean Air Act. This is terrible news for Rhode Island and for the health and well-being of our citizens. Our kids deserve better than this."

The ten states contend that the NSR changes will significantly undermine enforcement of the program by providing the polluters themselves with more discretion to determine when they should install modern air pollution controls.

By enacting these rules - which would exempt many polluting plants from compliance with NSR requirements - the EPA has exceeded its legal authority.

In addition, in a dramatic and unsupported revision of a prior draft rule, EPA is mandating that states adopt the new rules without having analyzed their impact on public health and the environment in the individual states. The Clean Air Act was initially adopted by Congress to improve air quality. There is no evidence from the EPA that air quality will improve as a result of the NSR changes and significant reason to believe that air quality will worsen.

Today's legal action contends that a stay is warranted because the petitioning states are likely to prevail in court when the full case is heard, and that the states will suffer irreparable harm if the new NSR rules take effect as scheduled on March 3, 2003. Furthermore, the legal brief argues that the public interest is best served by granting a stay.

The Clean Air Act is the cornerstone of federal law designed to protect public health and the environment from the ill effects of air pollution. Although it has historically been strengthened in amendments made since it was signed into law by President Nixon in 1970, the Bush Administration's NSR reforms significantly relax one of the few tools available to control emissions from older, more polluting industries.

The states participating in the stay motion are Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island and Vermont.