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Post date: November 22 2002

Ags To Sue Bush Administration For Gutting Clean Air Act

New York Attorney General Spitzer
Connecticut Attorney General Richard Blumenthal
Maine Attorney General G. Steven Rowe
Maryland Attorney General J. Joseph Curran, Jr.
Massachusetts Attorney General Thomas Reilly
New Hampshire Attorney General Philip T. McLaughlin
New Jersey Attorney General David Samson
Rhode Island Attorney General Sheldon Whitehouse
Vermont Attorney General William H. Sorrell


NY- Marc Violette, 518-473-5525
CT - Maura Fitzgerald 860-808-5324
ME- Jerry Reid, 207-626-8545
MD - Sean Caine, 410-576-6357
MA- Sarah Nathan, 617-727-2543
NH- Maureen Smith, 603-271-3679
NJ - Carol Gaskill, 609-292-4791
RI- Judy Kearns, 401-274-4400
VT - Kevin Leske, 802-828-6902

Nine state Attorneys General announced they will file a federal lawsuit against the Bush Administration for endangering air quality by gutting a critical component of the federal Clean Air Act.

Changes in the Clean Air Act announced today by the Bush Administration would exempt thousands of industrial air pollution sources, including some coal-fired power plants, from the New Source Review provision of the Clean Air Act. New Source Review requires that industrial plants add modern air pollution controls when they are upgraded or modified and substantially increase air pollution.

The Attorneys General said that this major weakening of the Clean Air Act will further degrade air quality in the Northeast and Mid-Atlantic states, regions already struggling with dirty air caused in significant part by industrial pollution carried into the region on prevailing winds. The states are particularly concerned about sulfur dioxide and nitrogen oxide emissions, which cause acid rain, smog and an increase in respiratory disease.

New York Attorney General Spitzer said: "The Bush Administration is attacking the Clean Air Act, which has been a cornerstone of our national commitment to environmental cleanup for two generations. The Bush Administration is again putting the financial interests of the oil, gas and coal companies above the public's right to breathe clean air. It is incumbent on the states to take action to ensure that people are protected."

Connecticut Attorney General Richard Blumenthal said: "Today's message from the Bush Administration seems to be: Northeast Drop Dead. The Administration is literally sacrificing the lives of people in the Northeast to appease the energy industry. The NSR standards are a matter of life and death to countless citizens of the Northeast who receive all of the pollution but none of the power from these contaminating coal burning plants in the Midwest. Our fight in court and elsewhere will be to uphold the letter and spirit of the Clean Air Act, endorsed by the first Bush Administration and now eviscerated by the second."

Maine Attorney General G. Steven Rowe said: "It is unconscionable that the Bush Administration would put the financial interests of corporate polluters above the health interests of the American people. Through Senators Muskie and Mitchell, the State of Maine led the enactment and re-enactment of the federal Clean Air Act. The Act benefits Maine people most because we are located at the end of our nation's 'air pollution tailpipe.' If the Bush Administration is successful in its efforts to significantly weaken the Clean Air Act, the people of Maine will be the biggest losers."

Maryland Attorney General J. Joseph Curran Jr. said: "Maryland will take whatever action necessary to ensure that changes to the existing Clean Air Act New Source Review program do not put the health of our citizens or the Chesapeake Bay at greater risk."

Massachusetts Attorney General Thomas F. Reilly said: "Today's actions threaten the very quality of the air that we breathe. There is something fundamentally wrong when agencies charged with protecting our public health roll back our environmental laws merely for the convenience of industry."

New Hampshire Attorney General Philip T. McLaughlin said: "Industry made a social contract with the American public 30 years ago to install state-of-the-art pollution controls if they modernized worn out equipment. Some have broken that contract and we have sued them because our lakes, forests and streams are being degraded by the acid attack of their emissions. EPA is re-writing the contract and environmental policy. Now the courts must decide whether the regulators and industry are meeting their obligations under the Clean Air Act."

New Jersey Attorney General David Samson said: "These new rules will allow old, dirty plants to continue to operate and will provide a disincentive for building new and more efficient facilities that emit less pollution. New Jersey and the other states joining in the lawsuit have fought hard for necessary pollution controls to protect the health of our citizens. We will not go backward on this issue."

Rhode Island Attorney General Sheldon Whitehouse said: "It is outrageous and deeply frustrating that the Bush Administration has ignored the concerns of the Northeast and is now proposing regulatory changes that, if unchallenged, would actually increase rather than decrease the amount of pollution from Midwestern power plants that spew pollution into Rhode Island and threaten our health, and the health of our kids. We are going to stand up to the Bush Administration and pursue all available legal options to prevent the EPA from making it easier for power plants to continue to pollute our air, make Rhode Islanders sick and damage our quality of life."

Vermont Attorney General William Sorrell said: "We will fight this fight as long as it takes. Clean air and clean water are gifts that keep giving to our citizens and our economy for years to come. We cannot permit EPA to roll-back our nation's environmental laws one after another."

The New Source Review lawsuit will allege that the federal Environmental Protection Agency (EPA) is exceeding its authority by enacting rules that weaken the Clean Air Act. When Congress adopted the Clean Air Act in 1970, its intention was to improve the environment and protect public health by lowering levels of air pollution. The Bush Administration's new rules and regulations would have the opposite effect of allowing air pollution levels to rise.

In 1999, eight states joined the federal government in suing numerous coal-burning power plants for violations of the existing New Source Review provisions of the Clean Air Act. In New York, Attorney General Spitzer has also sued coal burning power plants in New York State for similar violations.

In a February 2002 letter to EPA Administrator Whitman, nine Attorneys General called on EPA to fully document any secret contacts the EPA or Vice President Cheney's Energy Task Force had with outside parties regarding changes to New Source Review. Vice President Cheney has refused to turn over records relating to Energy Task Force meetings with industry lobbyists. A federal court recently ruled that the task force materials had to be made public, although the administration is now appealing that ruling.

The following elements of the new rules are among those likely to be challenged by the state Attorneys General lawsuit:

Adoption of a "clean unit" exclusion. This rule creates an exemption from new source review for facilities that install the equivalent of what was considered to be 'Best Available Control Technology at the time. These "clean units" would then be exempt for up to ten years from NSR review. As a result, these facilities could undertake projects that increase emissions without having to install newer, more effective, pollution control devices.

Revised approach for calculating baseline emissions. EPA would allow facilities to set their "baseline" emission levels at the highest polluting level of any two consecutive years out of the last ten years. Thus, polluters could significantly increase their emissions over current levels without installing pollution controls.

Plant-wide applicability limits. EPA will exempt polluters from New Source Review if they agree to a cap on their air pollution. The cap could be set far higher than the facility's current emissions, allowing pollution to increase far above current levels and remain uncontrolled even though the Clean Air Act intended air pollution to decrease.

EPA also issued a proposal that would enlarge the "routine maintenance" exception, which currently only allows activities such as daily maintenance (e.g., patching a boiler tube) to be exempted from the Clean Air Act's definition of a "modification" subject to NSR. EPA proposes to dramatically enlarge this exemption by creating an annual allowance that would exempt projects based only on cost, regardless of increased air pollution. Facilities could also replace major plant components and extend the life of the facility by decades, and not have to install air pollution controls, as long as the changes did not enable the facility to enlarge its current capacity.

The lawsuit on the final regulations will be filed in federal court in the U.S. Court of Appeals for the DC Circuit. The case will be filed after the regulations are published in the Federal Register, which is expected shortly.