March 21, 2006

HEADLINE

US Court of Appeals Blocks EPA New Source Review Policy

Last week, the District of Columbia US Court of Appeals issued an important legal decision in the State of New York, et. al v. EPA, upholding the integrity of the New Source Review (NSR) program of the Clean Air Act. 

NSR requires power plants and other industrial pollution emitting facilities to install air pollution control equipment anytime the facility undertakes expansion or upgrades that lead to an overall increase in pollution emissions.  However, “routine maintenance� of production facilities is exempted from NSR requirements.

The EPA, under the Bush Administration, had proposed expanding the “routine maintenance� exemption to allow facilities to conduct replacements of equipment up to 20 percent of the total value of plant without triggering NSR requirements.  The NSR exemption would be granted regardless of the overall impact on plant emissions.

The court issued a strong worded decision that critiqued nearly every argument forwarded by the EPA in support of their proposed NSR policy.  In commenting on the EPA’s position, the court said, “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.�

While it is possible the EPA could choose to appeal the D.C. Circuit Court of Appeals decision, based on the unanimous ruling and strongly worded opinion, most observers feel it unlikely the EPA will take such a step. 

The ATS participated in the case as amicus curiae or “friend of the court� petitioner in opposition to the EPA proposed NSR program.  The ATS is very pleased that the court has decided to vacate the policy issued by EPA.

RESEARCH

Senate Adopts Amendment to Increase Health Spending

Last week, during consideration of the Senate Budget Resolution, the Senate voted 72-27 to adopt an amendment offered by Senators Specter (R-PA) and Harkin (D-IA) to increase spending for health and education programs by $7 billion in fiscal year 2007.  Without the additional funds provided by the amendment, programs like CDC, NIH and education were likely to see significant cuts to meet the spending goals adopted by Congress in the budget resolution.  Adopting Specter-Harkin amendment may give appropriators the budget they need to adequately fund key health and education programs.

PHYSICIAN PRACTICE

Medicare Update for 2007 in Senate Budget Resolution

In a related story, the Senate also voted a non-binding resolution to create a deficit neutral “reserve fund� to address fix the Medicare physician update factor for 2007.  While the resolution does not have the force of law, it does put the Senate on the record in support of a fix for the 2007 Medicare physician update. 

Under current law, Medicare payments to physicians are projected to be cut by over four percent in 2007.  It will require Congressional action to prevent these projected cuts in the 2007 Medicare physician update.

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