In a unanimous ruling last Friday, the U.S. Court of Appeals for the D.C. Circuit turned aside the Environmental Protection Agency's plea for reconsideration.

Three judges on the court had ruled on March 17 that a loophole the EPA adopted for the new source review program violated the law by allowing thousands of aging power plants and other facilities to avoid installing modern-day pollution controls and emit more air pollution.

The new source review provision requires industrial facilities that make physical or operational changes that boost their total annual pollution to install state-of-the-art emissions controls. The EPA loophole would have allowed more than 20,000 facilities to replace existing equipment with "functionally equivalent" equipment without undergoing the clean air reviews required by new source review if the cost of the replacement did not exceed 20 percent of that of the entire "process unit." This exemption would have applied even if a facility's air pollution increased by thousands or tens of thousands of tons as a result of the replacement.

The court's March decision characterized the EPA's legal interpretation as a "Humpty Dumpty" upside-down world view.

The EPA petitioned the original three-judge panel to reconsider its ruling, and at the same time petitioned all of the court's judges to rehear the panel's decision. Late last Friday, the judges denied both requests. Not one judge asked for a vote on the agency's appeal.