Even while the Bush administration is planning to argue in favor of its new source review requirements before the Supreme Court, the EPA is forging ahead with changes that could weaken existing requirements – and possibly adopt the very changes the administration is opposing in court!
The White House OMB page notes the EPA proposal is under White House review. http://www.reginfo.gov/public/do/eoPackageMain
It notes that EPA has submitted a proposed rule to change the definition of whether upgrades to an electric power plant would increase its emissions – and thus make it subject to new source review. EPA historically has looked at whether emissions would increase on an annual basis. But industry has argued that the agency should be looking only at an hourly “rate.”
A federal appeals court agreed with industry (in the so-called Duke case), and the Supreme Court will hear the case in November. The Justice Dept. will be arguing with environmental groups against the industry position. (Other courts – most recently the U.S. Court of Appeals for the Seventh Circuit – have agreed the annual emissions test is the more appropriate gauge of whether pollution would increase in the real world.)
But while this issue is grinding through the court, EPA is moving ahead with a plan to adopt the more industry-friendly approach.
The EPA proposal would permit more real-world pollution. Power companies would be encouraged to modify aging facilities and run them more frequently, thereby increasing pollution.
OMB received this new EPA proposal on Friday, August 18. (EPA issued a preamble to the proposal last fall noting the agency planned to change the definition to the hourly approach.)
What’s even weirder is that EPA contends this is not a “major” rule (so the Supreme Court only deals with minor matters?) and that it is not “economically significant.”
Of course, it would be significant to breathers since it would encourage more air pollution.