WSJ distorted Clean Air Act to argue against enforcing “new source review” provision

A June 10 Wall Street Journal editorial misstated the controversial “new source review” (NSR) provision of the 1977 Clean Air Act in order to suggest that the Clinton administration had gone beyond the law when it sued electric utilities for violating the provision.

NSR allows old power plants to operate without the most advanced pollution controls, but the provision requires facilities to install such controls whenever they create “new sources” of pollution by expanding or upgrading. The provision applies chiefly to coal-fired power plants, which are the nation's largest sources of sulfur dioxide, mercury, and nitrogen dioxide. A 2004 study "[c]ommissioned by environmental groups and undertaken by a consultant often used by the Environmental Protection Agency" found that "[h]ealth problems linked to aging coal-fired power plants shorten nearly 24,000 lives a year, including 2,800 from lung cancer" [, 6/9/04]

The Journal falsely suggested that the provision was meant to apply only to entirely new power plants, then criticized the Clinton administration for overreaching by applying it to existing plants:

As the name [“new source review”] suggests, the rules were intended to require new pollution sources -- such as power plants -- to install state-of-the-art control technologies. But in the mid-1990s the Clinton Administration unilaterally decided that too many existing plants had been “grandfathered” by the rule, and declared that maintenance activities such as replacing turbines or ducts created “new” sources and triggered expensive NSR requirements.

In fact, the plain language of the Clean Air Act makes clear that the provision applies to modifications of existing plants. The law states:

(2) The term “new source'' means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source. [42 U.S.C.7411]

News reports consistently echo this commonsense reading: The Associated Press reported that "[t]he rule requires utilities to install new pollution control equipment whenever they make major changes at a plant or conduct maintenance that results in increased emissions."

Contrary to the Journal's suggestion, the enforcement efforts in the 1990s, which involved “dozens of state and federal lawsuits against 51 power plant operators during the late 1990s” [Washington Post, 10/6/03], did not involve a radical reinterpretation of the law. Rather, the actions were simply the result of a decision to begin enforcing existing law. The Boston Globe reported on June 14, 2002:

[A] set of amendments added to the law in the late 1970s dictated that if any of these grandfathered pollution sources upgraded their facilities in a manner that increased their pollution output, they would come under the emissions limits. During the late 1990s, the Clinton administration started aggressively enforcing these provisions, bringing suit against dozens of power plants, saying that they had substantially upgraded their plants in violation of the law.

In fact, 12 state attorneys general have argued that it is the Bush administration, not the Clinton administration, that has used radical interpretations of the statutes to guide enforcement and rulemaking. In 2003, 12 states sued to block a new NSR rule, promulgated by the Bush administration, which would have allowed power plants to perform upgrades equal to 20 percent of their value without installing modern pollution controls. In December 2003, days before the new rules were scheduled to take effect, a three-judge panel for the U.S. Circuit Court of Appeals for the District of Columbia blocked implementation of the new rule pending a final outcome of the case. The court ruled that the states had “demonstrated the irreparable harm [of letting the rule take effect] and likelihood of success” in challenging it on the grounds that it violates the underlying statute.

As for the Journal's charge that the Clinton administration enforcement was “unilateral,” it's not clear who else the Journal believes ought to have been involved, since the Constitution charges the executive branch with enforcing the law.

The Journal editorial was primarily devoted to criticizing the Bush administration for continuing to pursue Clinton-era enforcement cases initiated under the old rule, even as the administration tried to replace that rule with one that would permit the very “new source” pollution over which the Clinton administration had sued.

In November 2003, a month before the new rule was to take effect, the Environmental Protection Agency announced that it would drop the Clinton-era enforcements in advance of the new rule taking effect. But in January 2004, the EPA reversed itself, announcing that it would continue pursuing the Clinton-era enforcements. And in July 2004, the administration announced that it was considering actions against 22 additional plants.

The specific occasion for the Journal's editorial was a June 3 ruling by a federal district judge in Alabama against the Clinton-era rule. The Atlanta Journal-Constitution reported that this ruling continues the pattern of “divergent federal district court outcomes” in NSR cases around the country:

U.S. District Judge Virginia Hopkins from the Northern District of Alabama found in favor of the electric utility Alabama Power and essentially rendered the government's New Source Review case moot. Hopkins' ruling takes into account the recent divergent federal district court outcomes from two other Clinton era lawsuits against Duke Energy Corp. and Ohio Edison Co. While the Ohio case favored the government, Hopkins decided she preferred a 2003 ruling in favor of Duke.