Clean Air Litigation Merry-Go-Round Keeps Circling

We hate litigation at AAEA because it does not get scrubbers on power plants. We have witnessed over a quarter century of such litigation and it only serves to delay needed emissions equipment retrofits. We also believe the Clear Skies Initiative would have broken this cycle and would have led to scrubber installations.

The U.S. Court of Appeals for the D.C. Circuit rejected EPA's revised New Source Review (NSR) rule whereby a physical change that does not exceed 20% percent of the replacement value of the plant gets excluded from NSR as "routine maintenance" and does not require the installation of expensive new scrubbers. The previous rule triggered NSR if any physical change beynod routine maintenance increased the amount of pollution the plant emited.

So utilities will continue to resist installing scrubbers, environmental groups will continue to sue EPA to enforce the law, EPA will continue to sue the utilities to comply with 'command and control' regulations, consent decrees and other agreements will be negotiated, the process will start all over again, and the air will not be cleaner at the end of the day.