The decision drew sharp criticism from Congressional leaders,
state officials, environmental groups, public health organizations
and the former head of the Environmental Protection Agency (news
sites) (EPA), who charge the administration has put industry
interests ahead of public health and the environment.
Senator Joe Lieberman (news
sites), a Democrat from Connecticut, criticized the
administration's "shameful record of abandoning environmental
protection" and called on EPA Administrator Christie Whitman to
resign in protest.
"Governor Whitman has a good record and good intentions, but on
her watch this administration has undertaken the biggest rollback in
Clean Air Act history and scaled back countless other environmental
protections," said Lieberman. "Time and again, her advice has been
overruled by a White House determined to gut commonsense
environmental standards. Out of principle and protest, she should
"All this rule change will do is extend the life of the dirtiest
industrial plants and worsen the lives of citizens that breathe the
pollution from their smokestacks every day," Senator Lieberman
The changes, announced Friday by the EPA, are to the New Source
Review provision of the Clean Air Act.
New Source Review requires that an air pollution source, such as
a power plant or industrial complex, install the best pollution
control equipment available when it builds a new facility or when it
makes a major modification that increases emissions from an existing
facility. It was designed to ensure that older facilities built
before the Clean Air Act took effect in 1977 would not hamper the
nation's progress toward cleaner air.
The Bush administration said in a prepared statement that its
changes to New Source Review (NSR) will "increase energy efficiency
and encourage emissions reductions" and will have a "net benefit to
Critics, however, strongly dispute the administration's findings.
"This is the most significant rollback of clean air standards
ever," said Mark Wenzler, environmental counsel for the National
"The Bush administration's announcement retreats from the promise
of the Clean Air Act - fresh and healthy air for all Americans,"
said former EPA Administrator Carol Browner who served in the
"This rollback in the law will permit thousands of the oldest,
dirtiest smokestacks to continue spewing out pollution rather than
installing state of the art pollution controls," Browner said. "It
is nothing but a special deal for the special interests. It comes at
the expense of all who breathe and most particularly our children."
"The EPA is stripping away vital, cost effective clean air
measures that have protected Americans from the harmful effects of
industrial air pollution for a quarter century," warned
Environmental Defense senior attorney Vickie Patton.
"Today's action puts Americans in communities across the country
at serious health risk by exempting thousands of power plants,
refineries and other major industrial facilities from fundamental
air pollution controls," she said.
The changes are the culmination of a 10 year process, but are
largely based on a report issued to President George W. Bush (news
sites) in June 2002. The report found that "instead of being a
tool to help improve air quality, [NSR] has stood in the way of
making numerous environmental improvements at many facilities across
"NSR is a valuable program in many respects but the need for
reform is clear and has broad based support," EPA Administrator
Christie Whitman said. "The steps we are taking today recognize that
some aspects of the NSR program have deterred companies from
implementing projects that would increase energy efficiency and
decrease air pollution."
But Wenzler argues that the administration cannot "point to any
statement from any government or state agency or representative that
supports these changes." "No one in the government has ever called
for any of these new loopholes," he said, "and no one has embraced
these beside industry insiders."
Leaders of the State Territorial Air Pollution Program
Administrators (STAPPA) and the Association of Local Air Pollution
Control Officials (ALAPCO) joined in the chorus of disapproval over
the administration's changes to the New Source Review provision.
"Although our associations believe NSR can be improved," said
William Becker, executive director of STAPPA and ALAPCO, "we firmly
believe the controversial reforms the EPA is putting in place today
will result in unchecked emission increases that will degrade our
air quality and endanger public health."
The administration has made four highly technical changes to the
provision. One change alters the standard for determining the
baseline for a facility's pollution to allow it to select any 24
month period over the past 10 years upon which to establish its
"This will result in higher baseline levels," said Nat Mund,
Washington representative with the Sierra Club (news
The second change allows Plantwide Applicability Limits (PALs) to
be established with an emissions cap that looks back over 10 years
and does not decline over time. This is a voluntary program that
allows a facility to operate within a site specific emissions cap.
The rule change also establishes no minimum control requirements for
new sources or existing sources with outdated pollution controls.
The third change refers to "clean unit status," whereby
facilities that install the best available control technology or
lowest achievable emission rate control levels on a one time basis
are allowed to make changes that do not trigger a New Source Review
for a specific period of time.
The administration will now apply the rule retroactively to any
plant that applied the technologies by 1990 and it will apply for 10
to 15 years.
"Making this retroactive simply takes away the incentive to adopt
additional pollution control technologies," Mund said.
Fourth, the EPA will now allow the industry to determine which of
its pollution prevention projects are eligible for potential
exemption from the New Source Review. Previously, this eligibility
was determined by local and state authorities.
According to the EPA, these four changes will, in sum, "remove
perverse and unintended regulatory barriers to investments in energy
efficiency and pollution control projects, while preserving the
environmental benefits of the NSR program."
But these barriers were not created by the program, Mund argued,
and facilities can avoid them if they simply agree not to pollute
any more than they do today.
"These are four new loopholes that Congress never authorized that
will essentially allow plants to make changes to their plants that
increase pollution yet not have to put on new pollution controls,"
added Wenzler. "These dirty old grandfather plants will never, ever
shut down or retire. This is a law that is supposed to prevent
State officials also fear the changes will make their jobs,
tougher, not less difficult.
"Many of EPA's reforms will weaken the existing NSR program and
we cannot afford to have our hands tied from pursuing more stringent
requirements that will better protect air quality and public health
in our jurisdictions," said ALAPCO president Ellen Garvey on behalf
of local air pollution control officials.
Even without Friday's changes, data from the EPA indicates that
large pollution sources such as power plants release about 11.4
million tons of harmful sulfur dioxide and 5.2 million tons of smog
forming nitrogen oxides each year, comprising 62 percent and 21
percent of the national totals for these contaminants.
The EPA decision is a "major setback to public health," said John
Kirkwood, president and CEO of the American Lung Association.
"According to the EPA, 175 million Americans live in areas
violating health standards for smog or soot," Kirkwood said.
"Relaxing air pollution control rules applicable to 18,000
industrial pollution sources defies basic principles of common sense
and good government."
Friday's announcement also featured an additional proposal by the
Bush administration to expand the definition of "routine
maintenance, repair and replacement," a key concept within NSR.
Plants that undergo activities falling under this definition are not
subjected to additional pollution control measures.
The administration proposes a range of options, including a
mechanism that would allow the cost of maintenance projects to
determine whether NSR would affect the activity.
This proposed change, and the rules issued Friday, threaten to
undermine a slew of lawsuits against major industry players,
including the government owned and operated Tennessee Valley
Authority, who have been brought to court for allegedly evading NSR
obligations, said Wenzler.
This concern prompted New York Attorney General Eliot Spitzer to
testify at a Senate hearing in July that he would file suit in
federal court to stop the administration's changes to NSR.
There are signs that officials from Connecticut, Maryland and New
Jersey, as well as several environmental groups, are also
considering legal action to challenge the decision.
The motivations of the Bush administration have weighed heavily
on the debate over NSR and some fear only more of the same will
"Today's actions are a harbinger of what is to come from this
administration," Wenzler said. "They'll stop at nothing to pay back
the coal, oil and energy industries that financed their campaign."
"Today's package of final and proposed regulations on New Source
Review violates the spirit and the letter of the Clean Air Act,"
said Senator Jim Jeffords, an Independent from Vermont and chairman
of the Senate Environment and Public Works Committee. "The
administration has failed to do an honest, credible assessment of
the net impact on the environment, public health and air quality.
"This early Christmas gift to industry means more pollution and
less protection," Jeffords added. "If the administration is so proud
of these regulations, you have to ask yourself why they would wait
until after the election, after Congress adjourns for the year and
on the Friday afternoon before Thanksgiving to release them?"