Old Dirty Coal Power Plants and the Unfinished Business Of the Clean Air Act

If ever there were a provision in federal law that has kept too many lawyers busy in too many courtrooms, it's a section in the Clean Air Act called "New Source Review."

New Source Review sounds like a cabaret act, and in a bizarre sort of way, that's how it has appeared from the outside looking in.

A Republican congressman from upstate New York, where people from both parties worry a lot about the effects of acid rain on the Adirondacks, has introduced a bill that would make the New Source Review drama go away and greatly simplify the business of cleaning up clunker coal plants.

More on Congressman John McHugh's bill in a bit. First, the background:

When the Clean Air Act was passed, one of the questions was regulatory treatment of existing power plants. Make them clean up right away or give them a pass?

New Source Review was the halfway house that Congress settled on. The old plants were given a pass, or "grandfathered" in political lingo, unless they made major modifications that resulted in significant" increases in pollution. The thinking at the time was that the grimy old coal plants would give way in short order to squeaky-clean nukes.

Then Three Mile Island knocked the nuclear industry into a cocked hat that it's only now climbing out of. Nukes suddenly were seen as risky, high-maintenance sports cars that no one could afford. Utilities slapped "don't laugh, it's paid for" stickers on their old coal burners and kept them running ... and running.

That created an opening for endless disputes about interpreting New Source Review. Utility, government, and environmental lawyers have chased each other in circles through federal courtrooms for years arguing about the law's meaning.

In turn, the arguments have resulted in needless delays in cleaning up the old coal beaters. In 2007, for example, American Electric Power settled a New Source Review case that had dragged on for the better part of a decade.

Under the settlement, American Electric Power agreed to install controls at 16 plants that will result in a 79% cut in sulfur dioxide (SOX) emissions and a 69% cut in nitrogen oxides (NOx) emissions.

That's all well and good, but it shouldn't have taken so long and consumed so many billable hours.

McHugh's bill, if passed, would greatly simplify matters, yielding certainty for the utilities and cleaner air for citizens downwind. Grandfathered power plants, whether they are modified or not, would be given a cleanup deadline: upgrade their pollution controls to current standards no later than five years after the legislation takes effect, or by the 30th anniversary of the plant's startup, whichever is later.

His bill also would clean up legal uncertainties that resulted from court decisions tossing out two of the George W. Bush administration's SOX, NOx, and mercury rules. McHugh's legislation would mandate a 90% cut in power plant mercury emissions by 2013, and a 75% reduction, from 1997 levels, in SOX and NOx emissions by 2012.

Climate change will take up a lot of the menu for environmental policymaking in the 111th Congress. Henry Waxman and company should leave some space for Congressman McHugh's worthy legislation.