- The Washington Times - Tuesday, June 28, 2005

New Source Review (NSR) is a 1970s-era environmental program that requires major industrial plants to install new air pollution-control equipment if their actual capacity to emit harmful pollutants is increased. This makes perfect sense. When the states and Environmental Protection Agency formulate air pollution-control strategies, they assume that such facilities will run at full blast, 24 hours a day, 7 days a week. As a result, unless a plant’s capacity to emit air pollution is physically increased, all of the pollution it can create already has been accounted for in both local and national air-control plans. Until the late 1990s, everyone — the EPA included — shared this common understanding of NSR. Unfortunately, beginning in 1998, the Clinton administration summarily redefined the NSR program.

In a textbook example of regulatory overreaching, EPA suddenly claimed that almost any time a facility performed repair or maintenance work it “increased” its ability to pollute, subjecting the plant to expensive and time-consuming NSR requirements — whether or not its overall capacity to emit pollution had changed. This inefficient command-and-control, facility-by-facility, approach to pollution reduction ran directly contrary to the market-based strategies, featured in the Clean Air Act Amendments of 1990. Even worse, the Clinton team proceeded to bring enforcements actions based on this new theory, without bothering to change the applicable regulations in accordance with federal rulemaking and due-process requirements.

Upon taking office in 2001, the Bush administration recognized the fundamental flaws in its predecessor’s NSR policy and moved to promulgate new regulations. Unfortunately, it did not also withdraw the pending enforcement actions. As a result, the government is still arguing, in courtrooms all across the country, that an entire industry has repeatedly violated the law. Happily, the courts are now setting things right.

On June 15, the 4th Circuit became the first appellate court to consider the legality of the Clinton NSR enforcement initiative. In January, we called upon that court to restore the rule of law and affirm a lower court’s ruling that rejected the government’s deeply flawed position. In an opinion authored by Judge Diana Motz, a Clinton appointee, the Richmond-based court did exactly that, ordering EPA to return to its historical understanding of the NSR program. Although the court’s decision is binding only in Maryland, Virginia and the Carolinas, its scholarly dissection of the legal theory underlying the NSR enforcement cases should guide all courts currently considering similar actions.

Disappointed environmental groups, who spent years demagoging this issue, have tried to discredit Judge Motz’s reasoning and the result. Their last best hope was the U.S. Court of Appeals for the District of Columbia, which was considering environmentalists’ challenges to the Bush administration’s reforms designed to restore the historical meaning of the NSR program. On Friday, the D.C. court dashed their hopes.

Both the government and the environmentalists should accept “no” for an answer. NSR was never meant to be at the center of the nation’s air pollution-control strategy. The Bush administration should now accept the defeat of its predecessor’s bad policy and move on.

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