Court Strikes Down Major Bush Air Pollution Rule

Media Contacts

Environment Texas Hails Ruling as a Tremendous Victory for Public Health, Environment

AUSTIN—A federal appeals court today stuck down a highly controversial air pollution rule that was a centerpiece of the Bush administration’s environmental agenda.  The 2003 rule gutted key provisions of the Clean Air Act, known as New Source Review, that require power plants and other industrial sources of air pollution to install modern pollution controls when they make physical or operational changes that increase emissions.

“Today’s ruling is a tremendous victory for public health and the environment,” said Luke Metzger, Advocate with Environment Texas.  “The court slammed the door on the Bush administration’s attempt to create a gaping loophole in the Clean Air Act for some of the nation’s worst polluters.”

The 2003 rule would have allowed more than 20,000 power plants, refineries, and other industrial facilities to replace existing equipment with “functionally equivalent” equipment without undergoing the clean air reviews required by the NSR program if the cost of the replacement did not exceed 20% of that of the entire unit.  The exemption would have applied even if a facility’s air pollution increased by thousands or tens of thousands of tons as a result of the replacement.

The NSR program is key to ensuring that aging U.S. power plants—the nation’s largest industrial source of air pollution—meet modern pollution standards.  Nearly three-quarters of all power plant boilers are over 30 years old and most continue to operate without modern pollution control technology.  These older plants release 99% of the sulfur dioxide (SO2), 98% of nitrogen oxides (NOx), and 91% of carbon dioxide (CO2) from power plants.  SO2 and NOx form soot and smog pollution, and CO2 is the leading global warming pollutant. 

In December 2003, the U.S. Court of Appeals for the District of Columbia blocked implementation of the rule, pending its review of the case.  Today the court struck down the rule, saying it violates the Clean Air Act.

Environment Texas was a plaintiff in the case, along with a coalition of states and environmental and public health groups.  The court’s decision is available at