The Clinton administration launched a big crackdown on coal-fired power plants at the end of the 1990s, and the lawsuits it filed against a host of power companies played out in various ways through the Bush administration. So-called new source review provisions of the Clean Air Act were the subject, and Bush officials, while they pursued the suits and settlements, did not have their hearts in it.
But it looks as though the assault is back, some say. One former Environmental Protection Agency official told our colleague Alex Duncan this week that up to 30 power plants could be targeted. One industry attorney, Richard Alonso of Bracewell & Giuliani, said it sounds as though government prosecutors "are starting out where they left off in 2000. Everybody's nervous about it, obviously."
EPA and the Department of Justice said in a news release February 4 that they were "pursuing a national initiative, targeting electric utilities whose coal-fired power plants violate the law." In combination with EPA's announced review of the question of regulating carbon dioxide under the Clean Air Act, without simply waiting for new directives from a climate change bill, the nervousness could be well warranted.
“The reappearance of that language was an unmistakable signal that there will be power- plant enforcement by the Obama administration,” John Walke of the Natural Resources Defense Council told Duncan. Walke worked at EPA during the Clinton-era NSR crackdown.
A key player in the Clinton-era NSR initiative was Carol Browner, who ran EPA in the Clinton administration. Today, Browner coordinates energy and environmental policy for President Barack Obama. The White House declined to comment last week on what role, if any, Browner is playing with regard to the administration's "national initiative" against coal-fired electric utilities.
Alonso, the industry lawyer, said he did not know if Browner was driving the Obama administration's NSR initiative. “Everybody in DC is still trying to figure out what role Carol Browner will play in environmental policymaking,” he said. “From an industry perspective, we have yet to encounter anything out of that office.”
EPA and DOJ used the “national initiative” language again Wednesday in announcing an NSR lawsuit against NRG Energy for its Big Cajun coal-fired plant for modifying the plant without getting NSR permits and installing emission control technology.
Bruce Buckheit, a former director of EPA's air enforcement division, resigned in protest from that post in December 2003 because he believed the Bush administration was not properly enforcing the Clean Air Act. In an interview, Buckheit said there is a long list of power plants that EPA could target with additional NSR enforcement actions.
“I would expect at least 10 or more that are still viable, maybe 30,” he said.
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