Many legal experts are working diligently to put the Bush administration’s smog regulations, well, up in smoke. A federal appeals court (a three-judge panel of DC’s Court of Appeals) determined Friday to overturn a Bush administration rule controlling smog-forming industrial emissions. The panel ruled that the rule was inconsistent with the Clean Air Act, which defines the EPA’s responsibilities for defending and advancing the nation’s ozone layer and air quality.
The old rule allowed power plants and factories to avoid installing controls for smog-forming chemicals. Instead, factories could compensate for excess emissions by participating in a regional cap-and-trade program and by buying pollution credits from other plants, including those thousands of miles away. While this pollution credit strategy may have been effective regionally (i.e. reducing pollution, overall, in a given region), it did not minimize pollution in communities near the factories. The court said that, in “nonattainment areas” (areas where smog levels exceed federal standards), even a small number of factories purchasing such allowances could prevent a decrease to the area’s overall emissions (from all sources in the area) or, worse, cause emissions to increase.
The repeal was one of several aimed at changing the Bush Administration’s deregulatory pollution agenda, which one attorney described as being “in tatters.” Attorneys are now filing additional briefs to repeal a Bush-era decision that lowered the eight-hour ozone standard to 75 parts per billion (scientists had recommended 60 to 70 parts per billion).