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Post date: November 22 2002

Spitzer To Sue Bush Administration For Gutting Clean Air Act

Attorney General Spitzer announced today that he 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.

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

"The Bush Administration is attacking the Clean Air Act, which has been a cornerstone of our national commitment to environmental cleanup for two generations," said Attorney General Spitzer. "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 the public health and environment are protected."

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 higher levels of air pollution.

In 1999, eight states, including New York, 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. 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 Attorney General Spitzer's lawsuit:

Adoption of a "clean unit" exclusion. The EPA will create a New Source Review exemption for a facility that has installed pollution controls in the past ten years. This could give a facility that installed technology that was not even state-of-the-art many years ago a blanket exemption for emissions increases well into the future.

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