Power plant slap-down in federal court


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Power plants and factories will find it harder to build in dirty-air regions due to a U.S. Court of Appeals decision in Washington, D.C., that threw out several controversial Bush-era rules governing trading systems for ozone and other pollutants.

Under the Clean Air Act, new polluters can build in areas where the air has yet to meet federal health standards, but only if they purchase credits from other plants that close down, thus reducing pollution. But the Bush administration expanded those rules, allowing new polluters to buy credits from plants that were shuttered decades ago. It was an arrangement, said Earthjustice attorney David Baron, that ‘might work in the movie ‘Back to the Future,’ but in the real world, it made absolutely no sense.’


Striking down that rule expansion affects agencies such as Southern California’s South Coast Air Quality Management District which includes Orange County and large swaths of Los Angeles, San Bernardino and Riverside Counties. South Coast used the rule, said Baron, who argued the lawsuit on behalf of the Natural Resources Defense Council, an advocacy group. It was ‘a major concern’ to Californians and residents of other dirty-air regions, he said, ‘because it allow(ed) pollution to increase from the new plant without any contemporaneous emissions cuts -- so overall emissions could actually increase.’

The Los Angeles air basin is one of the dirtiest regions in the nation. Power plants are a leading source of the pollutants that make up ozone, a precursor to smog, which is linked to premature deaths and respiratory disease. They are also major sources of soot and particles that are linked to cancer and heart disease.

The court also struck down a trading program used by 22 states in the Northeast and Midwest, which allowed power plants in dirty air regions to use credits from facilities hundreds of miles away. The interstate program meant that polluted cities such as Chicago, New York and Pittsburgh could not force new power plants or expanding plants to use the most up-to-date technology available.

A U.S. Environmental Protection Agency spokeswoman said the agency is evaluating the decision. Bill Holbrook, a spokesman for the National Petrochemical & Refiners Assn., which intervened in the case, called the court’s opinion ‘a little bit more complex than it appears.’ He noted that it upheld certain positions of the association on volatile organic compounds and reasonably available control technology.

David Pettit, a Los Angeles NRDC attorney, called the decision ‘a victory for the people of Los Angeles. It slams the door on industry attempts to keep polluting by buying pollution credits from far away.’ NRDC is engaged in a separate lawsuit seeking to prevent the South Coast district from distributing to industry pollution credits from a reserve pool originally set aside for hospitals and other public agencies.

-- Margot Roosevelt