Colorado legislators should rethink the state’s recent retreat on air pollution rules in the aftermath of an important federal appeals court ruling. The court decision undermines the very reasoning for the state’s action to roll back tough air pollution restrictions.
For decades, the U.S. Environmental Protection Agency said industrial facilities had to install up-to-date air pollution controls any time they did major expansions. But the Bush administration sought to change the so-called “new source review” rules to eliminate that requirement. Several states and environmental groups challenged the EPA initiative in court, putting the rules in limbo for three years.
Nonetheless, last year Colorado rashly pushed ahead with revising its own air pollution rules to comply with the EPA’s new but uncertain guidelines. The legislature this year considered blocking the new state rules, but eventually Gov. Bill Owens prevailed.
Last week, the U.S. Court of Appeals for the District of Columbia overturned several aspects of the Bush rules but upheld others, giving partial victories to both industry and environmental groups.
For Colorado, the ruling undercuts the reason that Owens and health department director Doug Benevento said the state had to toss its old but effective rules.
Citing comments the EPA’s lawyers made to the court, the appeals panel said there is a “good deal of wiggle room” in how or even whether states embrace the Bush administration’s tepid approach. The court quoted the EPA’s own documents: “States and local jurisdictions have significant freedom to customize their new source review programs. Ever since our current new source review regulations were adopted in 1980, we have taken the position that states may meet the requirements [of the applicable rules] with different but equivalent regulations.”
In plain language, states can’t do any less than the EPA demands but are free to do more. The appeals panel said courts would review future disputes over state rules individually.
Benevento promised the legislature he would review the rules if the court overturned any part of them. Since the court tossed out the very reason the Owens administration said the state had to weaken its rules in the first place, the health department should go back to the drawing board.
Benevento says there’s the catch: Colorado law bars our state from adopting environmental rules tougher than EPA standards. That’s an unreasonable barrier that the legislature should dismantle next session. Colorado should take advantage of the courts’ blessing to craft an anti-pollution plan that makes sense for our state’s needs.
