States Sue Federal Government To Protect Clean Air Act

A coalition of 12 states, the District of Columbia and local governments today sued the Environmental Protection Agency to block changes it is making to the regulations that implement key aspects of the federal Clean Air Act. The states argue that the new regulations will sharply weaken national air pollution protections and result in damage to the environment and public health.

"This is an attack on the Clean Air Act by the Bush Administration," said New York Attorney General Spitzer. "The President is taking the nation in the wrong direction on environmental policy. We should not be relaxing emission control standards when air pollution continues to cause such devastating health and environmental problems."

Connecticut Attorney General Richard Blumenthal said: "This rollback is a presidential pardon for polluters who have defied the law year after year. Our court challenge will stop this illegal effort to repeal the Clean Air Act by dictatorial edict. The rollback is probably the single worst environmental policy decision by any administration ever. It leaves the administration without a fig leaf of credibility on environmental issues."

The District of Columbia’s Chief Legal Officer, Robert J. Spagnoletti said: "These regulatory changes will have a deleterious effect on the environment of the Nation’s Capital. We believe that the proposed changes are inconsistent with the Clean Air Act. We are happy to join New York and other jurisdictions in challenging those changes and are confident that the action we have filed today will result in victory and ultimately in cleaner air for the people who live in and visit the District."

Maine Attorney General Steven Rowe said: "The statutory mission of the EPA is to protect human health and to safeguard the natural environment upon which life depends. It is indeed ironic that this agency would try so hard to undermine one of our nation’s most important health and environmental protection laws. The EPA cannot adopt regulations that effectively repeal laws enacted by Congress. With the help of the court, we will put a stop to this outrageous effort."

Maryland Attorney General Joseph Curran, Jr. said: "We will take whatever steps necessary to protect the health of Maryland’s citizens and the Chesapeake Bay. Over 650,000 Marylanders suffer from respiratory ailments. The air they breathe - the air we all breathe - needs to be improved, and the rule announced by the EPA is a step in the wrong direction."

Massachusetts Attorney General Tom Reilly said: "This new rule is an unjustified assault on citizens’ rights to breathe clean air. We are not going to sit by quietly and allow the energy interests in this country to receive special treatment while so many of our children and elderly are needlessly suffering from respiratory problems that are, in essence, brought on by bad environmental policy."

New Hampshire Attorney General Peter Heed said: "New Hampshire has some of the toughest clean air laws in the country. Yet, our air is fouled by the dirtiest, upwind polluters that EPA now excuses from pollution control requirements. EPA gives lip service to encouraging ‘innovation’ but New Hampshire has shown that real innovation comes from strict but fair emissions requirements, not loopholes that allow old, polluting technology to be used forever."

New Jersey Attorney General Peter Harvey said: "It is deeply disturbing that in order to protect our air quality and the health of our citizens, we must file suit against the EPA, the very agency that should be leading the fight against air pollution. EPA has created a huge loophole for industry that will allow companies to rebuild old, dirty power plants and increase dangerous emissions without installing modern pollution controls as intended under New Source Review. We will fight these changes with all our legal resources."

New Mexico Attorney General Patricia Madrid said: "The proposed rule reverses existing air pollution protection policy at the Environmental Protection Agency. The existing policy is consistent with the Clean Air Act and should be maintained."

New Mexico Governor Bill Richardson said: "The health of New Mexico’s citizens and environment is critical. Our nation has built a successful air quality program while its economy and public health have improved. We need to continue making progress toward cleaner air."

Pennsylvania Department of Environmental Protection Secretary Kathleen McGinty said: "It is clearly in the public interest to challenge EPA’s newly promulgated routine maintenance, repair and replacement rules. Otherwise, the residents of Pennsylvania and other downwind states will be left to pay the price for the White House’s preference for pollution instead of public health. EPA’s reversal of long-standing environmental policies and regulations will have an adverse impact on public health and the environment. These relaxed standards will lead to more pollution, poorer air quality and dirtier skies."

Rhode Island Attorney General Patrick Lynch said: "The Bush Administration’s latest industry-friendly loophole could be the final nail in the Clean Air Act’s coffin. I will pursue every legal remedy available to keep the law alive to protect the health of Rhode Islanders and the health of our greatest natural resource, Narragansett Bay."

Vermont Attorney General William Sorrell said: "It is amazing to me that this Administration would take it upon itself to weaken the Clean Air Act and increase, rather than reduce, the pollution that is blowing our way. We cannot sit idly by and let this happen. We will fight this fight."

Wisconsin Attorney General Peg Lautenschlager said: "The citizens of Wisconsin, and all of the United States, are entitled to the highest federal standards for clean air we can provide – not the cheapened standards the Bush administration seeks for industrial polluters at the expense of our children’s health, our communities and the future of our environment."

A number of local governments joined in the lawsuit, including the City of New York and others.

John DeStefano, Jr., Mayor of the City of New Haven, Connecticut and President of the National League of Cities, said: "The City of New Haven has fought long and hard local battles to reduce the dangerous air pollutants that threaten the health of city residents, and have reduced diesel emissions on school buses and construction equipment. All of our local efforts and successes are directly threatened by the EPA’s proposed regulations, which place the polluters’ right to belch poison into the air over the right to breathe. Particularly for cities in the northeast, situated downwind from the worst polluters, the EPA is telling our citizens to continue to wheeze so that plant owners can continue to inhale hefty profits. The EPA’s new rules are wrong and we are proud to join in the fight to block them."

In the lawsuit filed today the states and localities argue that only Congress has the authority to make sweeping changes in the Clean Air Act.

The new rules by the Environmental Protection Agency undermine Congressional intent in passing this pioneering environmental legislation. Specifically, the new rules will allow coal-fired power plants, oil refineries and other large industrial sources to release more pollution into the nation’s skies.

The Clean Air Act requires existing industrial sources of air pollution to install modern air pollution controls when they are modified. While Congress intended pollution controls to be added for any modification that increases pollution, EPA long ago allowed exemptions for "routine maintenance" to exclude routine work that would not be expected to increase pollution.

For many years, including under the Reagan Administration and the first Bush Administration, EPA interpreted this "routine maintenance" exemption in a common sense fashion. EPA looked at the nature, purpose, cost and frequency of the modification to determine if it was "routine". Courts upheld this approach. In a dramatic change, however, the new regulation states that any modification costing up to 20 percent of the replacement cost of the unit will be considered routine maintenance - and therefore exempt from pollution controls, even if the plant modification results in much higher levels of air pollution. Labeling such a project as "routine maintenance," the new regulation would turn a blind eye to any air pollution increases caused by the project.

For instance, if a power plant was built for $25 million 35 years ago -- before pollution controls were required under the Clean Air Act -- but replacement cost (of a new unit) would cost $100 million, the power plant operator could spend up to $20 million on any project to upgrade and extend the life of the plant without installing any air pollution controls. Even if the plant actually polluted more than it had, it would not be required to install modern pollution controls under the new rule.

The revisions to the New Source Review program were signed by the EPA Acting Administrator on August 27, 2003 but did not become final until they appeared in the Federal Register today.

The new regulation guts the very provision of the Clean Air Act that states and the EPA have successfully used in lawsuits targeting dirty power plants, oil refineries and other polluting facilities. This year alone, those lawsuits have resulted in major settlements with Virginia Electric Power Company and Mirant Corporation that will substantially reduce air pollution. In addition, the EPA and the states of New York, Connecticut and New Jersey scored a major victory for clean air against Ohio Edison on August 7, 2003 when a federal judge in Ohio ruled in their favor under this provision.

Today’s action was filed in United States Court of Appeals for the District of Columbia Circuit, where a currently pending challenge to the first round of Clean Air Act rollback regulations was filed Dec. 31, 2002.

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