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Public Radio's Environmental News Magazine (follow us on Google News)

Old Battle Continues on New Source Review

Air Date: Week of

For years the power industry has fought against a section of the Clean Air Act called New Source Review, which forces expanding old power plants to install new pollution controls. You might think the recent unanimous Supreme Court decision upholding the law would put the matter to rest. But the Bush administration is now rewriting the rule to favor industry's argument. Living on Earth's Jeff Young reports from Washington.


CURWOOD: Earlier this month, the U.S. Supreme Court handed down a landmark ruling on environmental law, which in effect, told the Bush administration that the Environmental Protection Agency must regulate the global warming gas carbon dioxide. And on the very same day the high court handed down another major environmental ruling. The justices upheld a law that requires utility companies to install new pollution control equipment if they expand the capacity of old power plants.

The ruling centered on a section of the Clean Air Act known as New Source Review. A group of electric companies led by Duke Power had argued that the provision didn’t necessarily apply in all cases in which they upgraded their facilities. But by a nine to zero vote the Justices rejected that argument. As Living on Earth's Jeff Young reports though, the New Source Review case is far from closed.

ANNOUNCER: Ladies and gentlemen administrator Johnson

YOUNG: It was EPA administrator Stephen Johnson’s first public appearance since the Supreme Court's decision in the Duke Power case. Duke’s charged with violating the New Source Review section of the Clean Air Act, a rule that says old power plants must install pollution controls if they increase their emissions. When Johnson had his chance to brag about this clean air act victory he seemed strangely subdued.

JOHNSON: Ah, as we have looked at they way our New Source Review program has been administered. We see there has been some roadblocks or stumbling blocks so we’re trying to sort through that.

YOUNG: It’s the sort of non-answer officials give when they’re in an awkward spot. Johnson is in the process of rewriting some of the very rules that Duke and other power companies are accused of violating. And EPA didn't even want the Justices to hear the Duke case. It was up to an activist group, Environmental Defense, to take up the suit.

SCHAEFFER: Yeah we're doing a lot of that these days, ah, in the environmental community.

YOUNG: That's Eric Schaeffer, he directs a group called Environmental Integrity Project. Schaeffer once led EPA's civil enforcement office but quit to protest the Bush administration's handling of new source review. In the late years of the Clinton administration the EPA used that part of the law to file lawsuits against Duke and about a dozen other power companies. Some agreed to settle and install pollution controls. But when the Bush administration took control, EPA’s new leaders said they were changing new source review. Schaeffer says that encouraged power companies like Duke to fight the enforcement.

Eric Schaeffer (Courtesy of Eric Schaeffer)

SCHAEFFER: We had filed our lawsuit against Duke in 1999. In came the Bush Administration and basically shut us down. And now we’ve got the Supreme Courts saying the law that we were trying to enforce in fact, was good law and saying that unanimously. It's very satisfying. It is a sweet sweet victory.

YOUNG: But the court's decision does not end the dispute. The justices issued a narrow decision about how emissions should be measured under the law. That leaves other important arguments up to lower courts to figure out. So Duke and other companies can fight on. Schaeffer insists it's worth the fight when you consider the dangerous pollution at stake.

SCHAEFFER: This is very much a public health issue. If you win a New Source Review case you get a major cleanup and you get healthier air as a result.

YOUNG: Not so according to the EPA official who helped rewrite New Source Review.

HOLMSTEAD: The people who say those things don't understand how the clean air act works. This case and the decision by the Supreme Court will probably have no impact whatsoever on emissions from power plants.

YOUNG: That's Jeff Holmstead, he’s now with Bracewell and Giuliani, a K street firm that represents the energy industry. Before that he was top air pollution regulator for the Bush EPA. Holmstead says New Source Review had become so complex it no longer worked. He says companies didn’t know what the law was and were so afraid of lawsuits they couldn’t upgrade facilities to improve efficiency.

HOLMSTEAD: My job was not to create more lawsuits, it was to do the best possible approach for cleaning up the air.

YOUNG: The EPA position was much in line with what industry desired. Is that just a coincidence or was it indeed making changes on behalf of industry interests?

HOLMSTEAD: What we were all about, and what I hope the agency is all about, is to be making the right decisions from public health perspective. And after a lot of analysis we largely agreed that the industry was, in this case, was correct.

YOUNG: Holmstead says while the cases against Duke and others drag on, other regulations the administration started are already at work. He points to the Clean Air Interstate Rule, which is already cutting pollution. Eric Schaeffer says that’s still no excuse for undermining New Source Review.

SCHAEFFER: They came in arguing: enforcement doesn’t work and they did everything they could to make sure it didn't work. Had this administration not come in and weakened enforcement these plants would already be getting cleaned up.

YOUNG: The EPA's New Source Review changes are not complete. And it's not clear how the Duke case will affect the Agency's effort. Some states and environmental groups sued to stop them and one of those challenges could well end up back in the Supreme Court. So, what will become of New Source Review? Maybe EPA administrator Johnson's non-answer is the best answer we have.

JOHNSON: Stay tuned, stay tuned.

For Living on Earth I’m Jeff Young in Washington.

[MUSIC The Mercury Program “Tequesta” from ‘A Data Learn The Language’ (Tiger Style - 2002)]



Supreme Court decision in Environmental Defense v Duke Energy

EPA information page on New Source Review program

Environmental Integrity Project on New Source Review


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