Amanda Mott

December 2, 2006

Many of the oldest, filthiest coal-fired power plants in the United States have successfully evaded modern pollution controls due to the "grandfathering" loophole in the Clean Air Act (CAA).[1] This grandfathering loophole "allowed older power plants to avoid meeting the modern pollution control standards that new facilities had to adopt."[2] In an effort to eliminate this loophole, New Source Review (NSR) was added into the CAA.[3] Whenever plant owners make modifications "extending the lives" of their plants, NSR requires them "to upgrade their pollution controls to modern standards."[4] The United States Environmental Protection Agency (EPA) and the United States Department of Justice (DOJ) found that many plant owners were not complying with the NSR provision of the CAA.[5] The EPA and DOJ concluded that such nonconformity had resulted in the release of "tens of millions of tons of sulfur dioxide, nitrogen oxides and particulate matter" into the atmosphere resulting in serious health impacts and premature death.[6]

According to a new study performed by two nonprofit organizations through examination of state enforcement of clean air laws, inhabitants of at least ten of America's most populous states breathe smoggy air because pollution levels consistently exceed federal safety standards.[7] Every county in New Jersey and ninety-four percent of California counties fail to meet federal standards for ozone pollution.[8] Eighty-eight percent of Pennsylvanians and eight-five percent of New Yorkers breathe smog levels exceeding federal standards.[9]

The power to enforcement federal pollution standards is granted to states by the Clean Air Act, however, most states do not have enough inspectors to monitor emissions and implement successful regulations.[10] The results of failing to enforce the statute are respiratory problems including asthma, as well as, numerous premature deaths from heart attacks and lung cancer due to power plant pollution.[11] Fine particulate matter (PM) pollution is the culprit and leads to 5,500 to 9,000 premature deaths annually.[12]

Lack of funding for state and local government air quality programs is standard, however the problem is rapidly deteriorating.[13] Since 1993, federal grants for such programs has declined by twenty-five percent and President Bush, in FY 2007 budget, plans to cut another $15.6 million from the $172.7 million current budget. Outrageously, federal grants to state and local air pollution control agencies, mandated by § 105 of the CAA, fail to meet the needs by nearly $100 million annually.[14]

So what can we do? According to Reece Rushing, associate director for regulatory policy at the Center for American Progress, more money for state enforcement of clean air standards is the solution.[15] "The new Congress has an opportunity to set a new course by renewing federal investment in state and local air quality agencies and insisting on more frequent inspections," Rushing said.[16]

[1] Conrad Schneider, Power to Kill: Death and Disease from Power Plants Charged with Violating the Clean Air Act, Clean Air Task Force, 3 (July 2001), available at http://www.cleartheair.org/relatives/18300.pdf.

[2] http://www.sierraclub.org/cleanair/factsheets/nsr.asp (last visited Sept. 20, 2006).

[3] Power to Kill at 3.

[4] Id.

[5] Based on research done by US EPA and the US DOJ in the 1990s. Power to Kill at 3.

[6] Id.

[7] The report was released on November 30, 2006. To view the full report go to http://www.americanprogress.org/issues/2006/11/pdf/airquality.pdf. Environmental News, Too Many Air Polluters, Too Few Inspectors, Washington DC, Nov. 30, 2006 available at http://www.ens-newswire.com/ens/nov2006/2006-11-30-04.asp.

[8] Environmental News, Too Many Air Polluters, Too Few Inspectors, Washington DC, Nov. 30, 2006 available at http://www.ens-newswire.com/ens/nov2006/2006-11-30-04.asp.

[9] Id.

[10] Id.

[11] Conrad Schneider, Power to Kill: Death and Disease from Power Plants Charged with Violating the Clean Air Act, Clean Air Task Force, 3 (July 2001), available at http://www.cleartheair.org/relatives/18300.pdf.

[12] Id.

[13] Environmental News, supra n.9.

[14] Id.

[15] Id.

[16] Id.