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Court Blocks Bush Administration Clean Air Act Changes

A three-judge panel from the U.S. Circuit Court of Appeals for the District of Columbia issued an order that blocks, at least temporarily, the new rules from going into effect until a court challenge from the states and cities is heard, a legal process likely to last months.

The new Environmental Protection Agency rule would allow many of the nations’ coal-burning power plants and other industrial facilities to modernize or perform maintenance without adding additional pollution controls. The rule is a change to the federal 1977 Clean Air Act, which made anti-pollution devices mandatory any time a plant upgraded.

The revised regulation would still require plants to reduce levels of sulfur dioxide, nitrogen oxide and fine particles that pose public health problems. The rule was set to go into effect this week.

The justices said the challengers “demonstrated the irreparable harm and likelihood of success” of their case, meeting the requirements to stop the rule from going into effect.

Cynthia Bergman, a spokeswoman for EPA, declined to provide any initial comment, saying the agency had not yet had a chance to review the ruling, according to the Associated Press.

Bringing suit were attorneys general for 12 states including Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin. Legal officers for New York City, Washington, San Francisco, New Haven and a number of other cities in Connecticut were also involved in the challenge.

Environmental and other groups, including the Natural Resources Defense Council (NRDC) and the American Lung Association, also challenged the rule in the appeals court.

“This is a great gift to the American people and a lump of coal to the Bush administration and its polluter friends,” said John Walke, NRDC’s clean air director. “The court agreed this rule would cause great harm to the public that could not be undone, and it’s likely the rule will be struck down for running afoul of the Clean Air Act.”

Supporters of the rule say the measure will address industry concerns regarding what is considered routine maintenance and what is considered an upgrade.

“[W]e’ve spent an enormous amount of time looking at this change and can say quite clearly that it won’t really have an impact one way or another on emissions. It will just streamline a permitting process that had really become unduly burdensome for many people,” EPA Assistant Administrator of the Office of Air and Radiation Jeff Holmstead told the NewsHour in August.

Scott Segal, director of the Electric Reliability Coordinating Council, a group of power companies, called the ruling “a setback for energy efficiency and environmental protection,” but expressed confidence the rule would ultimately be upheld, according to the AP.

“The rule was based upon a substantial agency record with analysis, public hearings and thousands of rulemaking comments,” Segal said. “We expect the rule will soon be back on course.”

The judges also said they found no reason to revisit an earlier decision not to block other EPA’s changes to the Clean Air Act that were made final in December 2002, including a provision that gives industrial facilities more flexibility in calculating their pollution levels.

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