EPA plans to relax power plant rules threatens another legal row

A Congressional Committee has warned the EPA against issuing a proposed rule that would weaken laws regulating pollution from power plants.

The rule, said to be under consideration at the Agency, represents the third attempt by the Bush administration to relax the New Source Review (NSR), a linchpin piece of legislation designed to limit air pollution.

The New Source Review was established as an amendment to the Clean Air Act in 1977. The permit programme ensures that new power plant constructions meet specific emissions standards for pollutants. Older power plants were protected under a grandfather scheme, but any major developments to such plants would be subject to the new permit programme.

The EPA submitted proposals in 2005 and 2007, collectively known as the "EGU hourly test" proposal. The rules were intended to make it possible for power plants to emit more pollution as long as hourly emissions did not rise, replacing an annual measurement.

Steven Biel, global warming campaign director at Greenpeace US, warned that such a change would make it possible for plants to run for longer and therefore produce more emissions. Other clean air groups have suggested it would effectively neuter the NSR, which would hardly ever be triggered under the new measurement system.

"When President Bush first came in and the Cheney Energy Task Force met in secret in 2001, one of the top requests was for Bush to repeal the New Source Review altogether," said Biel, alleging that aside from a short period during the Clinton administration, the NSR had gone largely unenforced. "That would get rid of even the provision that would theoretically trigger clean air act enforcement on these power plants."

The EPA had argued that the EGU hourly test proposal would be offset by the Clean Air Interstate Act, legislation that curtailed emissions from power plants in the Eastern US.

However, that legislation was struck down on the DC circuit in July. Legislators including Barbara Boxer and Henry Waxman warned the EPA this month that in the absence of that legislation, proposing the new hourly rule would be legally dangerous.

"In issuing another rule with extraordinarily high legal risk, you would be deliberately inviting the harms I have highlighted: waste of taxpayer resources; further damage to EPA's credibility in court and ability to defend future rules; burdens on states; and uncertainty for Industry," said Waxman, chair of the House Committee on Government Oversight and Reform, in a letter lambasting EPA administrator Stephen Johnson over the Agency's legal record. "The rule itself would harm public health and the environment by weakening existing protections and allowing more air pollution from power plants until, as is extremely likely, it was vacated by a court."

An EPA spokesperson responsible failed to return calls yesterday.