Court tosses EPA effort on air pollution

A federal appeals court yesterday threw out a major component of the Bush administration's effort to reduce unhealthy levels of soot and smog in Eastern and Midwestern states, a decision that environmental groups worry will delay action on air pollution well into the next administration.

A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that the Environmental Protection Agency had overstepped its authority in instituting a rule that would have established a cap-and-trade system for soot and smog.

The court ruling came on the same day that the administration said it would take no steps under the Clean Air Act to regulate greenhouse gas emissions that contribute to global warming, even though the EPA formally announced that it would seek public comment on the issue. The Clean Air Interstate Rule (CAIR) rejected by the appeals court does not apply to greenhouse gases such as carbon dioxide, which is produced by burning fossil fuels.

The interstate rule represented the Bush administration's most aggressive action to clean the air over the next two decades. The EPA estimated that the rule would help prevent 17,000 premature deaths and reduce levels of sulfur dioxide and nitrogen oxides by as much as 70 percent by 2025. An unusual alliance of power companies and environmental groups supported the measure.

But the three-judge panel found that the EPA had committed "more than several fatal flaws" in creating the measure, which was challenged by several power companies and North Carolina for a variety of contrasting reasons.

"No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule," according to the unanimous 60-page opinion issued by the D.C. circuit's chief judge, David Sentelle, and judges Judith Rogers and Janice Rogers Brown.

EPA Administrator Stephen Johnson said in a conference call with reporters that "we are extremely disappointed in the court's decision because it's overturning one of the most protective (air pollution) rules in our nation's history. . . . We'll wait and see what our next steps are."

Environmental groups said the decision will delay efforts to reduce harmful air pollution and leave tough decisions to be made by the next president and Congress.

"This is probably the biggest air quality setback ever suffered by the EPA under any administration," said John Walke, clean air director and senior attorney for the National Resources Defense Council, an advocacy group.

Lawmakers who support tougher air pollution standards said the decision should help their efforts to pass legislation addressing the problem.

"Our air isn't getting any healthier as we battle new clean-air regulations in the courts and Congress continues to stall in passing strong clean air legislation," Sen. Thomas Carper, a Delaware Democrat and chairman of the Senate Clean Air and Nuclear Safety Subcommittee, said in a statement.

Carper has introduced legislation setting stricter limits on soot and smog than the Bush rule.

The interstate rule was one of the Bush administration's signature air pollution policies. It would have required 28 states and the District of Columbia to make reductions in emissions of nitrogen oxides and sulfur dioxide from power plants.

It took a regional approach to the issue and established a cap-and-trade system that would have allowed utilities to sell and buy pollution credits as long as total industry emissions remained below a pre-set cap.

While several environmental groups criticized the rule for not setting more aggressive pollution limits, they nevertheless welcomed the measure, saying they thought it was the best they could expect from the Bush administration.

Many power companies also supported the rule because it was not as costly as some proposals pending in Congress. Even North Carolina-based Duke Energy, which was one of the power companies that challenged the rule, said in a statement that it did not intend to have it overturned. (next page »)