THE MEANING OF “ANY”….As part of a process called New Source Review, the Clean Air Act requires power plant operators to install specific types of pollution control equipment whenever they make “any physical change” that increases the amount of air pollution a plant emits. As you can imagine, the power industry dislikes this requirement, and if they dislike it then so does the Bush administration.
So a couple of years ago, after failing to get Congress to change the law, the EPA issued a rule declaring that “any” actually means “things that cost more than 20% of the value of the plant.” So if you run a $1 billion plant, you can make $200 million worth of pollution increasing modifications without running afoul of the Clean Air Act.
Today, after listening to the EPA’s pretzel-bending defense of its postmodern definition of “any,” the DC Court of Appeals told the Bush administration to stuff a sock in it:
In this context, there is no reason the usual tools of statutory construction should not apply and hence no reason why ?any? should not mean ?any.?
….EPA?s position is that the word ?any? does not affect the expansiveness of the phrase ?physical change?….EPA?s approach would ostensibly require that the definition of ?modification? include a phrase such as ?regardless of size, cost, frequency, effect,? or other distinguishing characteristic. Only in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use. We decline to adopt such a world-view.
Good for them. The power industry has spent the better part of three decades fighting New Source Review, which was originally meant as a compromise that would allow them to install pollution control equipment gradually as they upgraded their plants instead of mandating the changes all at once. Little did anyone realize at the time that industry lawyers would manage to put off the day of reckoning for 25 years, culminating in the election of an administration that would then simply change the rules by fiat in order to eliminate even the minor aggravation of showing up for court dates.
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.
