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Is the U.S. Environmental Protection Agency's Revised New Source Review Rule Moving in the Right Direction?: A Deepened New Source Bias, and the Need for Pursuing Sustainable Energy Development in Air Pollution Control Law

May 2005

Citation: 35 ELR 10316

Issue: 5

Author: Inho Choi

This Article analyzes the revised new source review (NSR) rule and argues that it violates the Clean Air Act's (CAA's or the Act's) clean air mandate by changing the preexisting definition of the statutory term "change" and by extending the demand growth exclusion to all sources and creating several NSR-exempt project-based construction activities that are applicable to existing sources, without providing meaningful procedural safeguards. This is because the new rule conflicts directly with the following requirements under the CAA's NSR program: (1) a proposed physical or operational change that would increase emissions or result in collateral emissions must go through NSR preconstruction review; (2) emissions increases and decreases to be considered in NSR applicability determinations must be contemporaneous; and (3) once NSR is triggered, the stringent technology requirement, the best available control technology (BACT) or the lowest achievable emissions rate (LAER), must be applied to the sources.

The Article argues that the revised NSR rule is moving in the wrong direction in that it strengthens a bias against new sources and enlarges preexisting loopholes in favor of old, dirtier sources, which have traditionally enjoyed significant cost advantages over cleaner, more energy-efficient sources under the grandfathering scheme. It observes that the U.S. Environmental Protection Agency's (EPA's) reliance on the new rule's allegedly minimal impacts on air quality and the nation's decade-long transition to a multi-pollutant trading approach in air pollution control in justifying the rule changes is untenable in view of congressional intent leading to the enactment of NSR and the literal meaning of the term "change." The Article concludes with the argument that the overriding goal in NSR reform is to create a level playing field for all sources, whether new or old, by building sustainability concerns into existing environmental and energy law, for example, through repealing grandfathering, the adoption of output-based emissions standards and, possibly, the enactment of climate change policy aimed at reducing fossil fuel usage.

Inho Choi is an S.J.D. candidate and received his LL.M. in 2002 from George Washington University Law School. He received an LL.M. in 1998, and an LL.B. in 1993 from the Chungnam National University College of Law in South Korea. He can be contacted via e-mail at IAMCHOI99@hotmail.com. The author would like to express his greatest gratitude to Prof. Arnold W. Reitze Jr., who is his mentor at George Washington University Law School and one of the nation's leading environmental law experts, for his helpful comments on the earlier drafts of this Article and his strong encouragement throughout its preparation. All the remaining errors and misunderstandings are the author's responsibility.

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