9 Northeastern States Challenge Pollution Rule
- 9 Northeastern States Challenge Pollution Rule
By KATHARINE Q. SEELYE
WA$HINGTON, Dec. 31 Nine Northeastern states filed a legal challenge today in
federal court here to new air-pollution rules for power plants and other
industries, just hours after the Bush administration published those rules.
The states' attorneys general said the rules, which were tentatively announced
last month, constituted the most serious effort at rolling back the landmark
Clean Air Act since it was enacted more than 30 years ago.
They said they wanted to make a strong, swift objection and filed their legal
petition for review after seeing the new rules on a government Web site this
The rules, published today in the Federal Register, concern a program known as
New Source Review. The changes would allow thousands of aging coal-fired power
plants and other industrial sites to upgrade without having to install costly
Eliot L. Spitzer, the New York attorney general and an organizer of the suit,
said, "The Bush administration has taken an action that will bring more acid
rain, more smog, more asthma and more respiratory disease to millions of
The Environmental Protection Agency, which published the rules, defended them
and said the administration followed proper procedures in issuing them
administratively rather than seeking legislation.
"We reaffirm that we strongly believe that these rules will be positive for the
environment," Joe Martyak, a spokesman for the agency, said. "We feel strongly
that at the end of the day, what we've done is the right thing as well as a
valid action. To say this is gutting the Clean Air Act is absolutely incorrect.
It is strengthening these provisions."
The utility industry criticized the suit. The Electric Reliability Coordinating
Council issued a statement saying that "the Northeast attorneys general reflect
a minority opinion," shaped more by economic concerns than by environmental
In addition to the published rules, the administration issued a new proposal
that would expand an exemption allowing power plants and other industrial
facilities to escape pollution controls. The suit filed by the states did not
address that proposal.
Their one-page petition, filed in the United States Court of Appeals for the
District of Columbia Circuit, did not state the grounds for the challenge. But
legal advisers in the states said they would argue that the rules violated the
Clean Air Act and that they could not be made without the consent of Congress.
The states' legal action escalates a struggle between utilities and clean-air
advocates that has been waged since the Clean Air Act was signed into law by
President Richard M. Nixon. Industries have complained most recently to the Bush
administration that the current rules, begun under President Bill Clinton, were
choking off new investments in power-generating plants and discouraging
Because the administration had made its intentions clear when it announced the
rules last month, the attorneys general had time to prepare their coordinated
legal response. Expecting that the administration would publish the rules during
the holidays, when few people would be paying attention, the attorneys general
signed their documents in advance and delivered them to Joseph Curran Jr., the
attorney general of Maryland, whose aides filed them in court here today.
"We could have waited," said Peter Lehner, chief of the environmental protection
bureau in Mr. Spitzer's New York office. "But this is the first time there has
been such a major retreat on clean air, and the states believed it was very
important to respond aggressively and quickly."
Mr. Lehner said he expected other states to join the suit in the next month. The
nine that filed today were Connecticut, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, Rhode Island and Vermont.
The filing puts Christie Whitman, the administrator of the Environmental
Protection Agency, in an awkward position.
As the governor of New Jersey, Mrs. Whitman had joined other states in seeking
relief from Midwestern power plants whose smokestack pollution drifted eastward.
Now, as head of the agency promulgating the new rules, she is in the position of
defending those rules.
Both Mr. Spitzer and Richard Blumenthal, attorney general of Connecticut, have
said that the rules proposed today would undermine their hand in prosecuting and
settling the dozens of enforcement cases that as governor Mrs. Whitman had
joined in bringing.
"They feel like they've been sold out by her now that she's gone to Washington,"
said John Walke, a clean air expert for the Natural Resources Defense Council.
In those enforcement cases, the states, the E.P.A. and environmental groups
asked judges to order companies to spend hundreds of millions of dollars on
pollution controls, based on the New Source Review program that the states says
the environmental agency is now proposing to weaken. Mrs. Whitman said in a
recent interview that the new rules did nothing to compromise the enforcement
suits. "Those are very important to me," she said. "Those cases are still going
Industry groups, which had pushed for the rules that were published today,
hailed them and attacked the attorneys general. The National Association of
Manufacturers said the rules would "help further clean air and boost energy
security" and "provide business planners with greater certainty as they work to
increase production and limit air pollution in a cost-effective manner."
Copyright 2003 The New York Times Company