Court to EPA: Not a Humpty-Dumpty World

A federal appeals court slapped down the Environmental Protection Agency yesterday in a major ruling and victory for states, the environment and our health. At issue was the speed at which power plants need to be upgraded with new pollution control equipment. The nearly three-decades old clean air law requiring the power plant upgrades was itself a compromise that gave industry time to upgrade, but the utility industry has fought it all along, waiting and hoping for a friendly administration to come along that would do its bidding:

President Bush took office in 2001 promising to ease regulations on coal-fired power plants as part of a larger energy production initiative. Three successive administrators of the EPA have tried without success to alter the rules and policies adopted during the Clinton administration that cracked down on aging power plants and refineries that were not equipped with modern air pollution equipment when they were upgraded and when their output was expanded.

Under the revised policy that was rejected by the court yesterday, power plants and other industrial polluters would not have to install new pollution technology if they modernized less than 20 percent of their operations.

The central question in the case focused on what constitutes an industrial facility "modification," because that is what triggers the federal requirement to cut down on the smog or soot emitted by utilities, oil refineries, incinerators, chemical plants and manufacturing operations. Previous administrations, including Bill Clinton's, had interpreted that phrase to encompass any physical activity that increases pollution from a given facility, with the exception of routine maintenance.

EPA officials in the Bush administration sought to broaden this exemption by asserting that "routine maintenance" is any activity that amounts to less than 20 percent of a plant's value. But the ruling, written by Judge Judith W. Rogers, rejected that reasoning as illogical.

"EPA's approach would ostensibly require that the definition of 'modification' include a phrase such as 'regardless of size, cost, frequency, effect,' or other distinguishing characteristic," Rogers wrote. "Only in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use. We decline to adopt such a world-view."

The industry may appeal but the unanimous ruling was so strongly written that it is difficult to imagine it being over-turned.