T he Bush administration is not known for undying concern for the environment in general or clean air in particular. That's why it was a stunning setback when the U.S. Court of Appeals for the District of Columbia last month struck down the administration's single boldest move in favor of clean air: a regulation from its Environmental Protection Agency that sought to clean up the air from power plants. In an odd twist, the ruling was handed down on the same day the EPA opted to avoid issuing rules to regulate greenhouse gas emissions. In both cases, the action now turns to Congress.
What the court invalidated because of "fatal flaws" was the Clean Air Interstate Rule. This 2005 directive from the EPA sought to reduce the amount of sulfur dioxide and nitrogen oxide from power plants in one state that then settle downwind in another. The regulation covered the District of Columbia and 28 states in the Midwest and the East. Sulfur dioxide would have been cut by 70 percent, and nitrogen oxide by 60 percent from 2003 levels, starting in 2015, using a cap-and-trade system. Utility companies, and even states such as North Carolina, picked at pieces of the rule in lawsuits, from the equity of the distribution of emission allowances to the lack of assurance that upwind states would take measures to reduce pollution downwind.
For six years, Sen. Thomas R. Carper, D-Del., has been trying to pass legislation similar to, but more far-reaching, than CAIR. The Senate isn't planning to consider it until next year. The Democratic-controlled 110th Congress roared into Washington last year promising aggressive action on the environment and climate change. It succeeded in boosting motor vehicle fuel economy and increasing the amount of renewable fuels in the fuel supply. And that's about it. Passage of Mr. Carper's bill, which would make regulation of pollutants from the power sector nationwide a matter of law rather than agency rules (as with CAIR), could be the next Congress's chance to fulfill the promise of aggressive action.