New York Times Editorial - A victory for cleaner air

New York Times Editorial - A victory for cleaner air
Copyright by The New York Times
Published: August 22, 2006

Americans who live in areas with substandard air won another important round last week in the tortured legal battle to force power companies, other industrial polluters and the Bush administration itself to obey the Clean Air Act. In a unanimous decision, a federal appeals court in Chicago upheld a controversial provision of the act that requires older plants to install modern pollution controls whenever they undergo physical or operational changes that increase harmful emissions.

The provision, known as New Source Review, has been critical to the efforts of Northeastern states to reduce air pollution from Midwestern power plants. But industry hates it, and the administration has spent the last five years trying to get rid of it. This effort seemed very close to success until the courts intervened.

Thursday's decision, from a three- judge panel of the U.S. Court of Appeals for the 7th Circuit in Chicago, turned on the question of how to measure emissions. Judge Richard Posner, who wrote the decision, said that what counted was annual emissions, since a plant that had been upgraded could presumably be driven harder, producing more emissions over time.
The decision is likely to be appealed, but the fact that a distinguished, conservative jurist like Posner came down so clearly and sensibly on the side of the law has given clean air advocates hope that they, and the law itself, may yet prevail.