The Bush administration got a serious kick in the pants today from the U.S. Court of Appeals in Washington, which ruled that a proposed change in rules governing power plants violated the Clean Air Act — in fact, that the EPA’s interpretation of the law reflected "a Humpty Dumpty world." Ah, those federal judges. Cards.

At issue is the "new source review" provision of the CAA, which requires power plants and other industrial facilities doing anything beyond routine maintenance to add up-to-date anti-pollution technology. Industry hates this rule, and squashing it has been a top Bush administration priority from the beginning.

This is being trumpeted as an unqualified victory, and if giving the Bush administration a black eye constitutes victory, it certainly is. But I must admit to some mixed feelings about NSR. I’ve heard some fairly convincing arguments from the right that the unintended consequence of the the rule is simply to discourage power plants from updating their equipment at all, and some of them are incredibly old, inefficient, and dirty. Obviously, no matter your feelings about coal, it would be nice if power plants burning it were as technologically sophisticated and clean as possible. In an ideal world, there’s probably be a more effective way of getting there.

The problem with arguments against this or that regulation from the right is that one does not hear any subsequent proposal for how pollution from these power plants — which is a huge problem, leading to thousands of deaths and millions in health care costs — could be reduced. "This reg doesn’t work the way it’s supposed to, so get rid of it." Yes, but what then?

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Until I hear about something better on the table, I’ll say hanging onto NSR is a good idea. But this is one of those lamentable cases where both sides are so entrenched, feel so besieged, that they do nothing but cling to their position with ferocious tenacity. Nobody’s talking about alternative ways to reach the goal of clean air. Of course, the Bush administration is staffed top to bottom with ex-industry lobbyists and shills, so I guess there’s no good-faith dialogue to be had. Bummer.

Update [2006-3-17 21:20:16 by David Roberts]: Kevin Drum makes makes me look like a weenie:

The power industry is right that New Source Review hasn’t worked. The answer, however, is not to give them even more leeway to evade the clear intent of the law. The answer is to eliminate NSR and simply require them to install modern pollution controls in all plants within a specified period of time. That would be plain language that even power industry lawyers couldn’t pretend not to understand.

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