The Bush administration proposed new regulations Thursday that could allow the nation’s dirtiest power plants to release more air pollutants each year — and possibly undercut lawsuits aimed at forcing companies to comply with the Clean Air Act.
The proposal follows a June federal court ruling that said power plants can throw more pollutants into the air each year when they modernize to operate for longer hours.
It’s the latest in a series of attempts by the Environmental Protection Agency to make the nearly 30-year-old Clean Air Act rules for coal-fired power plants more industry-friendly. Some changes were held up by lawsuits from environmentalists and state officials.
“We are now doing to smokestacks what we did to tailpipes,” said EPA Administrator Stephen Johnson, who predicted the regulations would spur greater technology innovation.
“We want to remove any unnecessary regulatory obstacles,” he said. “We’re focused on practical, achievable results that don’t get delayed by years of litigation.”
Focus on coal
The EPA proposal affects the nation’s 600 coal-burning power plants, which represent 55 percent of the nation’s electric generating capacity. Industry officials say the plants are getting cleaner. But they continue to produce millions of tons of nitrogen oxides and sulfur dioxide blamed for smog, acid rain and soot and other fine particles that lodge in people’s lungs and cause asthma and other respiratory ailments. They also remain a big source of mercury, which works its way up the food chain after being absorbed by fish.
EPA “is embracing industry-backed loopholes that undermine basic protections for millions of Americans breathing harmful smokestack pollution,” said Vickie Patton, an attorney who handles air quality issues for the advocacy group Environmental Defense.
An analysis of EPA data by Environmental Defense shows many East Coast power plants won’t install new controls to clean up sulfur dioxide by 2015, despite EPA’s predictions.
Proponents say other EPA and state regulations would prevent that from happening.
“The heavy lifting of emissions control is already ensured by tough new EPA rules on interstate emissions and mercury control,” said Scott Segal, director of the Electric Reliability Coordinating Council, which represents electric utilities.
Utilities are legally obligated to continue to cut their pollution, said Dan Riedinger, spokesman for the Edison Electric Institute, another trade group. He said it was “a gross distortion of the facts” to conclude that power plants would increase pollution.
In June, the 4th U.S. Circuit Court of Appeals said Duke Energy Corp. didn’t need permission from EPA or states when it improved eight power plants in North Carolina and South Carolina from 1988 to 2000. But EPA seems to depart from another ruling in June, by the U.S. Court of Appeals for the District of Columbia. In a challenge by New York to EPA’s air programs, that court said “Congress directed the agency to measure emissions increases in terms of changes in actual emissions,” not by hourly rates.
The Bush administration in 2002 and 2003 rewrote how EPA administers a Clean Air Act program that Congress approved in 1977. It was designed to ensure that aging power plants would have to install state-of-the-art equipment if they expanded or modernized in a way that results in significantly more air pollution in surrounding communities.
Former President Clinton used the program to bring suits against 51 aging, coal-burning power plants, primarily in the Ohio Valley and the South. Those new regulations have been placed on hold while federal courts review challenges to them by state officials and environmental and health groups.
But during the Bush presidency, Justice Department officials have continued to negotiate settlements in which many of the sued utilities agreed to pay stiff fines and install new pollution controls costing in the hundreds of millions of dollars. They have also filed new lawsuits against other coal-burning power plants since Bush took office.
Johnson said the EPA would continue to support cases already filed, but new ones in the pipeline would be taken up only if they conformed to the agency’s new regulations.
But EPA’s proposed rule “will adversely impact our enforcement cases and is largely unenforceable as written,” Adam Kushner, director of EPA’s Air Enforcement Division, wrote in an August 25 internal memo, obtained by the Natural Resources Defense Council advocacy group.
The latest EPA proposal would accomplish through regulation more changes along the lines of what the administration has tried to do in Congress and the courts. A version of the changes had been included in the House energy bill until last week.