The Court and Clean Air
When is an increase in pollution not an increase in pollution? Ask the EPA.

Tuesday, May 16, 2006

IT SHOULD NOT take the Supreme Court to define what it means to "increase" the air pollution put out by power plants. An increase, as any reasonably fluent English speaker would know, has taken place if a plant is producing more pollution than it used to. Unfortunately, a mischievous decision by the U.S. Court of Appeals for the 4th Circuit in Richmond has declared otherwise, and the Bush administration is using this ruling as legal cover to weaken the rules governing the upgrading of old coal-fired power plants. Consequently, the high court's decision yesterday to review the case of Environmental Defense v. Duke Energy Corp. is welcome.

Federal clean air law requires power companies to install pollution-fighting equipment when they upgrade their plants in a way that would increase emissions. But Duke Energy, which runs power plants in the Carolinas, convinced the 4th Circuit that its numerous upgrades to its plants didn't count as increasing pollution because they didn't raise the plants' hourly emissions but merely allowed them to run for more hours per day. The 4th Circuit in essence invalidated the Environmental Protection Agency's long-standing rule evaluating increases as actual increases, on the grounds that the agency uses hourly measures for another provision of the statute.

The 4th Circuit shouldn't have been ruling on this question at all, since Congress gave exclusive jurisdiction over challenges to clean air rules to the D.C. Circuit -- which shortly after the 4th Circuit's ruling clarified that "increases" means, well, "increases." But that hasn't stopped the administration from using the 4th Circuit's ruling to undermine that of the court whose opinions supposedly bind it on clean air matters. Even now, the EPA is trying to relax the rules, pushing a regulation that would redefine "increase" in terms of a plant's capacity for emissions rather than its actual emissions -- in defiance of the D.C. Circuit ruling. For its rationale, the EPA points to the 4th Circuit's ruling in Duke Energy.

By overturning this decision, the Supreme Court can send two important messages. It will remind companies keen to challenge a raft of regulations that they cannot stage an end-run on the appeals court to which Congress has given a special role in regulatory matters. And it will remind the administration -- again -- to honor its own obligation under law to force power companies to clean up their act.