Environmental groups won a key legal battle late last month, temporarily defeating new air quality regulations proposed by the Bush Administration that would have allowed coal-fired power plants to release more pollution.

The new air pollution rules were slated to take effect on Dec. 26, but a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia on Christmas Eve granted a stay blocking the new rules. The Bush Administration’s new rules would have allowed coal-fired power plants to increase power production without upgrading outdated pollution controls.

“This is a great Christmas gift. The court has delivered tidings of joy to all Americans and a lump of coal to the Bush administration and its polluter friends,” said John Walke, director of National Resource Defense Council’s Air Program.

Thirteen states and several environmental groups collectively filed a lawsuit against the federal government over the proposed rule changes more than a year ago. The case has not been tried, however, and the states’ attorneys general have blamed the Environmental Protection Agency for dragging its feet and preventing the case from being heard. As the deadline for the new rules approached, the states and environmental groups filed a motion for a stay against the new rules until the case could be tried.

“The stay will prevent industry from taking advantage of this illegal loophole while the court challenge is pending,” said Keri Powell, an attorney at Earthjustice. Earthjustice is the law firm representing the American Lung Association, Communities for a Better Environment, Environmental Defense, Natural Resources Defense Council, Sierra Club and U.S. Public Interest Research Group (U.S. PIRG) in the case.

North Carolina did not join the suit, despite a state Clean Smokestacks Act that requires much tougher regulations for power plants and industries in North Carolina than are required elsewhere. The tougher regulations were intended to give the state the “moral and legal high ground” to force surrounding states, namely Tennessee, to clean up their air that in turn drifts into North Carolina, according to statements by Gov. Mike Easley. The office of N.C. Attorney General Roy Cooper cited the state budget problem as one reason the state did not sign onto the lawsuit, however.

The U.S. Court of Appeals rarely grants a stay blocking pending legislation, but the groups demonstrated that their members would suffer irreparable harm if the court allowed the rules to go into effect. In addition, the groups had to demonstrate that they were likely to prevail in their formal legal challenge to the new rules.

Environmental Defense senior attorney Vickie Patton said it was a shame that legal action had to be used to “defend the public’s basic right to clean, healthy air.”

Presidential-hopeful Sen. John Edwards, D-Raleigh, called the proposed new rules a “brazen giveaway to big industries.”

“If we’re going to have permanent relief from this president’s efforts to enrich the energy industry at our children’s expense, we’ll need a new president who puts people ahead of polluters,” Edwards said.

The old vs. new “New Source Review”

Coal-fired power plants that existed prior to the Clean Air Act of 1970 are “grandfathered in” and not required to conform with current air pollution standards. An amendment to the Clean Air Act in 1977 known as the “new source review” required power plants to upgrade their pollution controls when expanding or increasing power production. The assumption of this rule was that the coal-powered plants would eventually be forced to modernize their pollution controls.

The Bush Administration plan, which passed Congress in August, would have reversed this policy. It would allow plants to make upgrades, including installing new equipment, amounting to 20 percent of the plant’s total value without installing new air pollution controls. Hypothetically, coal plants could overhaul their operations over the course of five years without upgrading pollution controls. Environmental groups believed this new policy undermined the intent of the Clean Air Act.

The new regulations would have applied immediately to 17 states on the east coast, including Tennessee. Air pollution research and studies show that Tennessee coal-fired power plants are a major contributor of unhealthy ozone levels and acid rain in the Great Smoky Mountains National Park. The new rules would be phased in nationwide by 2006.

Routine maintenance

Bush policy advisors claim the new rules would actually improve air quality by lifting punitive rules on power plants and industry. According to the Bush Administration, new source review regulations discourage power plants from upgrading pollution controls rather than encourage them to upgrade.

The EPA, which advocated the rule change under the Bush Administration, claimed that new source review blocks power plants from performing “routine maintenance” that would allow them to run more efficiently and therefore reduce pollution.

An independent report filed in August by the General Accounting Office concluded that insufficient scientific data had been used to support this claim, but rather the EPA relied on anecdotal information provided by the power industry.

A study by the Council of State Governments disagreed with the EPA’s claim as well, and found the change would substantially increase toxic emissions from power plants. The 13 states filing the lawsuit against the federal government sanctioned the report.

Much of the argument over the new rules focus on the definition of “routine maintenance.” Under the new rules, upgrades amounting to less than 20 percent of a plant’s total value would qualify as routine maintenance and would be allowed.

Environmental groups and the 13 states filing the lawsuit claim that the new rules would allow upgrades that go far beyond routine maintenance and would allow a plant to completely rebuild its facilities without modernizing pollution controls.

In August, the states won a victory on the issue of routine maintenance when a federal judge in Ohio found that Ohio Edison power company caused a significant increase in pollution and violated “new source review” by making $136 million in improvements without installing new pollution control equipment. The company claimed the improvements were routine maintenance, but Judge Edmund Sargas ruled “the projects were not routine in any sense of the term.”