Judicial Rebukes on Clean Air

NY Times

February 18, 2008
Editorial


The federal courts have been a bulwark against the Bush administration’s relentless efforts to weaken 40 years’ worth of environmental law, including statutes protecting the nation’s forests, wetlands and endangered species. The courts have been especially important in resisting the administration’s assault on the 1970 Clean Air Act, which began with Vice President Dick Cheney’s 2001 energy report and continues to this day.

In 2006 and 2007, the United States Court of Appeals for the District of Columbia and the Supreme Court ordered the Environmental Protection Agency to follow the law and require utilities to install pollution controls when upgrading power plants. Another Supreme Court decision last year held that the Clean Air Act required the E.P.A. to regulate greenhouse gas emissions from automobiles, an obligation the agency continues to duck.

This month, the D.C. Circuit ruled that the E.P.A. had once again ignored the law by failing to require deep and timely reductions in mercury emissions from coal-fired power plants. Like most clean air cases, this one was mind-numbingly complex. The gist of it was that the E.P.A. — seeking as usual to please industry — had approved a weak set of regulations that would let many plants off the hook for emissions reductions that would be required under any honest reading of the law.

The D.C. Circuit, by no means a radical group of judges, has become so exasperated that it has taken to quoting Lewis Carroll. In 2006, in a reference to “Through the Looking Glass,” the court said that the E.P.A.’s reading of the law would make sense “only in a Humpty Dumpty world.” This month, invoking “Alice in Wonderland,” the court said the agency’s reasoning recalled “the logic of the Queen of Hearts, substituting the E.P.A.’s desires for the plain text” of the law.

Desire still burns bright at the E.P.A., which reportedly intends to make one last-ditch effort to weaken the rules requiring new pollution controls on upgraded plants. Our advice to the agency would be to take a dispassionate look at its losing streak in the federal courts and, for once, leave the law alone.