Delaware Nature Society Challenges EPA's Clean Air Regulatory Rollbacks

DC Circuit Court of Appeals Rules on First Challenge to EPA’s Clean Air Regulatory Rollbacks
Briefing is Ongoing in Second NSR Case

On February 25, 2003, the Mid-Atlantic Environmental Law Center filed a petition ( 5.49 Kb)  for review in the D.C. Circuit Court of Appeals challenging the United States Environmental Protection Agency's (EPA) revised "New Source Review" rule under the Clean Air Act. The Center filed the petition on behalf of the Delaware Nature Society. If implemented, the new rule would weaken existing requirements for high polluting, large, old power plants and industrial facilities to install even modest pollution control equipment to reduce emissions of various pollutants, including mercury, sulfur dioxide, and nitrogen oxides. The abundance of these pollutants contributes to the State's high cancer and asthma rates, and makes life more difficult for the very young, the old, the infirm, and those with cancer or immunological diseases. Press Release ( 6.65 Kb) 

In a June 2005 ruling, the federal DC Circuit ruled on MAELC’s 2003 challenge to the EPA’s final regulation on the Clean Air Act New Source Review program. The rule, which has major implications for emissions from more than 17,000 industrial facilities nationwided, was upheld in part and rejected in part by the Court. Essentially, the New Source Review program calls for existing plants to install modern pollution controls whenever they make changes to a plant that result in increases in emissions. DNS, along with other environmental organizations and the attorneys general of 13 states, argued that the regulation ran afoul of the Clean Air Act and severely limited the instances in which pollution controls would be required.

Specifically the Court threw out EPA’s plan to allow plants that had installed modern pollution controls as long as 10 years ago, so-called “clean units,” to avoid new source review control updates for present pollution-increasing changes to a plant. The court also rejected an exemption for pollution control projects as contrary to the Act. EPA had wanted to allow emissions increases for one pollutant to occur without controls if the increase resulted from plant changes designed to reduce emissions of a different pollutant. Unfortunately, the Court did allow EPA’s other “reforms” to stand. They include the “10-year lookback” wherein the starting point for determining whether a project results in a pollution control update triggering emissions increase could be taken from the emissions levels a plant had as long as 10 years in the past. Since plants used to emit at higher levels generally, this provides an advantage to industry. Plantwide applicability limits, which give facilities the ability to set a plantwide emission cap and make emission-increasing changes to specific pollution units under that cap without updating pollution controls, was also upheld.

In a second DC circuit challenge to EPA’s rollbacks of a critical Clean Air Act program, MAELC also represents DNS. In the August 27, 2003 rule, EPA expanded the “routine maintenance” loophole to the New Source Review program. This “exception that swallows the rule” would allow plants to replace existing components of a pollution unit with equipment that performs a similar function as long as that project did not exceed 20% of the value of the entire unit. Evidence marshaled by the environmental petitioners and government petitioners demonstrates that extremely few plant modifications would trigger NSR under the new rule. In fact, most of the successful NSR enforcement actions in the last several years—which are delivering hundreds of thousands of tons of pollution reductions—would never have been possible under the new rule.

In an initially positive sign, the Court granted a Stay of the Rule, preventing its taking effect until the merits of the case are ruled upon. The joint brief of the Environmental Petitioners, which includes DNS, was submitted in September 2005.