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Administration to Push Forward With Lawsuit Over Clean Air Act

By Elizabeth Shogren

After an eight-month review, the Bush administration announced Tuesday that it will proceed with lawsuits filed by the Clinton administration against polluting power companies because the lawsuits are consistent with the Clean Air Act.

“The department takes seriously its obligation to enforce the laws protecting our nation’s environment,” Attorney General John Ashcroft said in a statement.

However, a senior Justice Department official acknowledged that the 10 power companies are unlikely to settle the cases before the Environmental Protection Agency announces its expected weakening of the rules that are central to the lawsuits.

At issue is whether the utilities broke the law by making modifications to their facilities that significantly increased pollution.

The so-called new-source review provision of the 1970 Clean Air Act requires companies to install modern pollution-control devices when building new plants or modifying existing ones. The Bush administration, however, has been working on changes to the rules that would make them more acceptable to industry.

“Today’s announcement only reinforces my puzzlement over why the administration is about to undermine the very same laws they are prosecuting,” said John Walke, director of the clean air program for Natural Resources Defense Council, an environmental organization.

Indeed, the Electric Reliability Coordinating Council, which represents several of the targeted utilities, said the government’s decision to pursue the cases does not necessarily bode ill for the council’s clients.

Scott Segal, an attorney who is a spokesman for the council, suggested that the EPA could have difficulty prevailing in the cases if the underlying regulations are changed.

The fate of these highly technical regulations and the lawsuits filed to enforce them could have immense implications for air quality, particularly in the Northeast. Changes to the rules will be viewed by environmentalists as a measure of how far the administration is willing to go to satisfy the concerns of industry.

A weakening of the regulations, which dictate what changes businesses must make to their facilities to reduce pollution, is unlikely to render the lawsuits moot, but it could result in settlements that are more favorable for the utilities.

Settlement terms are likely to be based on the requirements of rules in force when the settlement is reached, rather than when the lawsuit was filed, according to a senior Justice Department official, who spoke on the condition of anonymity.

The utilities targeted in the lawsuits include Illinois Power Co. and Dynegy Midwest Generation, Southern Indiana Gas and Electric Co., American Electric Power Service Corp., Ohio Edison Co., Georgia Power and Savannah Electric & Power Co., Alabama Power Co., and Duke Energy Corp.