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Conservation Update

July 24, 2008

Court Dumps Clean Air Rule, But That May Not Be a Bad Thing

On July 11, a federal appeals court threw out a Bush administration program known as the Clean Air Interstate Rule (CAIR). CAIR required power plants to curb emissions of sulfur dioxide, nitrogen oxides, and mercury, but the U.S. Court of Appeals for the District of Columbia said the regulation contained a number of “fatal flaws.”

The decision left many in the utility industry and the environmental community scratching their heads and wondering what will happen next. Some environmental groups have deemed the ruling disastrous and utility companies have stopped work on CAIR-required pollution controls at their coal-fired plants. But is the ruling that bad for the environment? For a couple of reasons, it may not be.

CAIR was not that great a program in the first place, and the ruling offers Congress an opportunity to pursue more aggressive reductions in these three pollutants while at the same time dealing with greenhouse gases that contribute to global climate change. Also, there are tools under the existing Clean Air Act to force utilities to install scrubbers on antiquated, coal-fired plants, which could cut pollution quicker and deeper than CAIR would have.

The U.S. Environmental Protection Agency (EPA) adopted CAIR in March 2005, after Congress rejected the Bush administration’s Clear Skies initiative. Under provisions of the rule, power plants in 28 eastern states and the District of Columbia would have been required to eventually reduce sulfur dioxide emissions by 70 percent and nitrogen oxide emissions by 60 percent over 2003 levels.

That sounds good, but CAIR, as the court noted, had a lot of problems. Its cap and trade program would have allowed the oldest and dirtiest plants in the Midwest, the ones that are contributing most to acidification of Adirondack lakes and ponds, to buy credits and continue to spew pollutants unfettered by even the most rudimentary controls. CAIR’s trading program also made it hard for some states, such as North Carolina, to attain federally mandated smog levels because of emissions from upwind states. (North Carolina brought suit against EPA, arguing that CAIR did not guarantee that the state would be protected from pollution from other states.)

Actually, more can be accomplished in reducing air pollution by pursuing legal action under the New Source Review (NSR) provision of the Clean Air Act than would have been accomplished under CAIR. When Congress passed the Clean Air Act, lawmakers reasoned that many of these plants were nearing the end of their useful lives. They assumed they would soon be retired and replaced with cleaner, more-efficient ones, so they exempted existing factories and power plants from pollution-control requirements. But if a company modifies a grandfathered plant, except for routine maintenance, and those modifications result in more pollution, it must install state-of-the-art pollution-control devices. NSR is a preconstruction permitting process to ensure adherence to that rule. Eighty percent of the acid deposition in the Adirondacks comes from unremediated coal-fired plants in the Tennessee and Ohio River valleys. Most of those plants have been rebuilt in violation of NSR, so they would be vulnerable to Clean Air Act litigation. Big utilities such as Tampa Electric and American Electric Power have already settled major NSR cases, and more trials are due to commence this year. ADK’s legal efforts in the federal courts over past few years helped pave the way for these victories and potential victories in the future.

The appeals court’s decision also offers Congress a golden opportunity to move ahead on a four-pollutant bill to deal with power plant carbon emissions as well as sulfur dioxide, nitrogen oxides, and mercury. The Healthy Air and Clean Water Act, introduced by U.S. Rep. John McHugh (R-Pierrepont Manor), is the only four-pollutant bill in the House. The bill, which McHugh drafted with help from ADK staff, would require an 80 percent reduction in carbon emissions by 2050 and a 90 percent reduction in mercury emissions by 2011 from coal-fired power plants. It would also require a 75 percent cut, from 1997 levels, of all power plants emissions of sulfur dioxide and nitrogen oxides by 2010.

The scientific consensus is that the time window for acting on global warming is very short. Congress needs to act now. The McHugh bill won’t reduce carbon from all sources, but it would deal with the greatest single source, coal-burning power plants.