Five months after a federal court struck down the Bush administration's top program aimed at curbing air pollution, the fate of air quality regulation—and, therefore, air quality—in much of the country is increasingly uncertain, if not imperiled.
In the wake of the decision by the U.S. Court of Appeals for the D.C. Circuit, many states say they are now unclear on how to move forward with plans to reduce dangerous air pollution from power plants. Some utility companies, meanwhile, appear to have shelved plans to install expensive emissions control systems or are considering increasing their emissions to recoup money already spent, according to observers and court filings.
"We're in never-never land right now," says William Becker, executive director of the National Association of Clean Air Agencies.
Adopted in 2005, the Bush administration's program, known as the Clean Air Interstate Rule, was meant to help curb emissions of harmful, airborne pollutants—including nitrogen oxide and sulfur dioxide—that can cause smog, acid rain, and other air dangerous quality problems. It was seen by many as a major bright spot in the administration's environmental record. The Environmental Protection Agency predicted that the rule would help prevent, by 2015, at least 17,000 premature deaths and would also help reduce the annual number of heart attacks by an estimated 25,000.
But in July, the federal appeals court threw out the rule, calling it "fatally flawed." (The court objected to it on multiple counts: It thought the rule overstepped the authority granted in the Clean Air Act; it also felt the rule didn't do enough to protect eastern states from upwind pollution.)
The decision has led to a state of chaos for regulators and utilities. Many officials and environmentalists are now asking Congress for a legislative fix, while others are looking to President-elect Barack Obama, and his EPA administrator, to clear up the matter.
In the meantime, some states, like North Carolina, are trying to put in place their own temporary fixes because they are under pressure to meet the EPA's 2010 deadlines for reductions in ozone and other types of pollution. The state is trying to move quickly, says Tom Mather of the North Carolina Division of Air Quality, to deter utilities from abandoning their emissions reduction efforts.
"Where it's caused so many problems is that a lot of [power plants] had already begun to add new equipment or were in the process of adding equipment" to reduce emissions, Mather says. "We're not talking about $5 parts you buy at the store. Buying this type of equipment could cost millions and millions of dollars and take many months or even years to construct." Now, some companies—further worried by the recession—are rethinking these investments.
A piecemeal, state-by-state approach, however, will very likely run into difficulties. One of the main selling points of the administration's rule was that it worked regionally, covering 28 states and the District of Columbia, and sought in particular to cut down on emissions from power plants in the Midwest that blow eastward and wreak havoc on other states' effort to keep their own air clean.
"In the case of fine-particulate pollution, there is a huge regional soup of it," says Joseph Koncelik, an Ohio-based environmental lawyer and the former Ohio EPA director. "So, it's somewhat ineffective if states are working on their own, just trying to control a few factories in their jurisdiction." Under the old plan, big polluters (mainly oil, gas, and coal-burning power plants) would either have had to lower their own emissions or buy allowances from cleaner companies.
Though the rule had its detractors—some states thought it was too lenient; some utilities thought it too harsh—few wanted it tossed out completely, as the court ruled in July. As a result, a series of legal moves has unfolded this fall, with the court inviting parties to file new briefs. The court is now trying to decide if it should keep part of the rule in place and ask EPA to make changes.