State governments are struggling to improve air quality and many have found themselves in an unusual position: urging the Environmental Protection Agency to be more aggressive in enforcing its own regulations.
Changes made by the EPA in 2002 and 2003 to the Clear Air Act's new-source review rules -- rules that require older powerplants to comply with modern pollution standards whenever they update their facilities -- have spurred a deluge of legal actions by states against the the agency as they attempt to meet federal anti-pollution standards.
Groups of states are uniting in several court actions against the EPA that challenge its interpretation of the extent of its responsibility to regulate powerplant emissions.
"Before (President) Bush, states would grumble and try to resist the EPA and its regulations, but now we have states suing the EPA for not being aggressive enough," said Peter Lehner, director of environmental programs for the Office of the New York Attorney General, which is involved with several cases against the EPA.
On April 4, the New York Times Magazine reported that after taking office, Bush rolled back new-source review rules because power companies were on the verge of signing costly agreements with the EPA to cut the pollution from their plants. The agreements, if implemented, would have delivered one of the greatest advances in clean air in the nation's history, the paper reported.
Along with the rollbacks, however, EPA officials also announced the agency was dropping investigations of some 50 powerplants nationwide for failing to meet pollution control standards. In mitigating the rules, the EPA set up a situation that could change the relationship between state governments and the agency in fighting air pollution.
"The federal government established a core program of requirements with the Clean Air Act, and states had the right to go beyond that," Vickie Patton, attorney for Environmental Defense, told United Press International. "This time, the EPA took the unusual step of mandating that states adopt exemptions to longstanding Clean Air Act requirements."
Now, 13 states are suing the EPA for changing five different rules on how it calculates emissions in a case that will be fully briefed in May. In addition, 12 states, the District of Columbia and local governments are suing the EPA jointly for enlarging the scope of "routine maintenance" for powerplants in a case that will be briefed in the fall. The plaintiffs in both actions claim the changes to the new-source review rules will produce millions of tons of additional air pollution annually.
Over the past several years, New York and other Northeastern states have been filing a barrage of lawsuits against the EPA for interpreting the Clean Air Act in ways that they claim benefit industry more than human health or the environment. Recently, other states such as North Carolina and New Mexico have joined in the controversy.
On March 18, North Carolina petitioned the EPA to get tough on pollution that it argues is wafting across its borders from powerplants in 13 other states. In the petition, North Carolina Attorney General Roy Cooper asserted out-of-state polluters are interfering with the state's ability to meet national air quality standards, despite North Carolina's achievement in cleaning up pollution within its borders under its Clean Smokestacks Act of 2002.
"We've taken steps to cut down on the pollution we produce here in North Carolina, but dirty air doesn't respect state borders," Cooper said. "Since we can't stop pollution at the state line, we want to cut it at the source."
Jeff Gleason, deputy director of the Southern Environmental Law Center, said: "Virtually all of the states that are targeted in the North Carolina petition have powerplants that would have been subject to new-source review lawsuits under the old rules. North Carolina saw the rollbacks and failure at the federal level and decided it needed to take action at the state level."
As defendants in lawsuits over the agency's changes to the Clean Air Act, EPA officials remain confident the rules will continue to require industry to achieve air-pollution reductions.
"The EPA's position is that we are not going to get reductions from tons of cases," Jeffrey Holmstead, assistant administrator of EPA's office of air and radiation, told an audience March 30 at an Environmental Law Institute seminar.
EPA spokesman John Millett echoed Holmstead.
"We have a suite of legislation and a host of actions coming online very soon that are going to improve air quality and reduce pollution -- new-source review is really a side issue," Millett told UPI. "This is a dynamic time in air quality."
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Eliza Barclay is an intern for UPI Science News. E-mail [email protected]
