Clean Air Blowback
By Sam Williams

[Note: This is a pre-edited version of a story which appeared in the Jan. 14 edition of The Gotham Gazette under the headline "The Feds and Clean Air." The final, edited version is available on the Gotham Gazette site.]


As home to the nation's largest municipal population, New York City has traditionally regarded clean air as more of a journey than a destination.

Since Congress passed the first Clean Air Act in 1970, ozone, smog, and particulate matter levels have decreased dramatically throughout the city its surrounding environs. Still, with the prevailing winds and morning commuters bringing in a fresh supply every day, local levels remain disappointingly high when measured against other regions of the country.

The Bush Administration says it would like to change that. In 2002 it proposed modifcations to the Environmental Protection Agency's new source review program, a 27 year old permitting process whereby factories and power plants have to reapply anytime they make "major" modifications to their existing facilities.

The curent EPA argument, which parallels that of administration allies in the coal and power industries, is that the current interpretation of "major" is absurdly low. In 1999, for example, the EPA filed seven lawsuits against utilities that had modified their facilities without reapplying for a new source permit. In one suit, the EPA cited a new furnace floor and replaced steam drum parts as sufficiently major modifications.

Such strict interpretations -- and the cost of buying th "best available" technologies that goes into qualifying for a new source permit -- only encourages power companies to leave aging power plants be, reform proponents say, a practice that leads to dirtier and less efficient energy production.

Given the challenge of cleaning up its own skies, you'd think that New York City would be sympathetic to such arguments. Not so. The Red State/Blue State divide that has marked American politics since November 2000 has produced an interesting flip-flop in traditional roles between the city and EPA. Historically a punching bag in terms of air pollution enforcement, the city is now getting in a few licks of its own. Last March, together with the city of San Francisco and 27 Connecticut municipalities, the city joined in a 14 state lawsuit that aims to block the EPA's overhaul.

For the city, the issue comes down to health care. More upwind pollutants means more asthma cases and city-subsidized emergency room visits downwind. To guard its pocketbook, the city has chosen to throw in its lots with the states and stricter air standards.

"It doesn't take a genius to see that this is a rollback," says one city attorney close to the case. "If they're not rollbacks, the government has a role to explain why they aren't, and they haven't done that, yet."

Call it clean air blowback. For decades, Republican lawmakers and their conservative Democratic allies pushed for compromises that would distribute regulatory power away from the EPA. Now, with their own legal muscles fully developed, states and municipalities are blocking a Bush Administration attempt to reform the agency through executive fiat. What's more, they're insisting the EPA stick to tough, Clinton-era standards.

One state leading the way is New York, where attorney general Eliot Spitzer has built on the successes of his predecessors in going after midwestern coal-burning plants whose emissions contribute to acid rain on the eastern seaboard. Judith Enck, a policy advisor to Spitzer, says the Office of the Attorney General has targeted 30 coal-burning power plants both in New York and out of state over the last five years, using the new source review rule as a legal battering ram. Until last November, when the EPA-suspended ongoing investigations into 50 facilities, citing the rule change, the state was counting on the federal government to carry out a similar crackdown in other regions.

"Three years into the dance, we lost our partner," says Enck.

For New York City attorneys, the betrayal theme is less stronger than the payback theme. Only four years ago the city was the defendant in civil lawsuit citing the Clean Air Act. Settled in 2000, the lawsuit stemmed from EPA charges that the Department of Sanitation had been improprerly handling discarded refrigerators and air conditioners, allowing the ozone layer-depleting freon inside to escape into the atmosphere. In the final settlement, the city agreed to pay a $1 million penalty and implement $3 million in new environmental programs.

Since then, the city has worked to get its own environmental house in order. Included in that effort: a series of epidemiological surveys studying the direct and indirect health effects of chronic air pollution on city residents.

One city attorney -- speaking anonymously -- says the Law Deparment was "happy to jump in" on the states' case, even if only in a supporting role. So far, the city has assisted the state in building its case mainly by offering local statistics on the hospitalization costs related to ozone and fine particulate matter -- the two local byproducts of increased upwind pollution.

Dr. Thomas Frieden, commissioner of the city Department of Health and Mental Hygiene, says these statistics are the product of a two year long campaign to fill in the "major gaps" on local air pollution and its after-effects.

"What we know is that particulate matter and the amount of particulate matter in the air correlates with heart disease and death," Frieden says. "Both particulate and ozone are reasonable markers of air quality problems that may exacerbate asthma and other conditions for vulnerable people."

This linkage has been enough to build a dramatic health care component into the states' legal argument. Thanks in part to the city's data, federal judges have agreed to put the rules change on hold pending the outcome of the case. A three judge panel in the D.C. Circuit Court of Appeals, the primary venue for such policy disputes, made its decision on Dec. 23, just three days before the revised policy was slated to go into effect.

The EPA's new commissioner Mike Leavitt says the agency will "vigorously defend" the new rule. Last week, however, he maintained that the agency, via the Department of Justice, would continue pressing the 1999 lawsuits filed under the old, Clinton-era interpretations.

Meanwhile, the former Utah governor unveiled a new plan, dubbed the "Interstate Air Quality Rule" that would nationalize the "cap and trade" pollution credits program used to reduce acid rain in the northeast.

"Our belief is simple: People do the right things faster, and they do more of it, when they have an incentive and the latitude to do it in a way that makes sense for them," said Leavitt in a Jan. 19 speech at the Edison Electric Institute, an electric utilities trade group.

Such comments, while rooted in federalist GOP doctrine, acknowledge the failures of a policing system that, to date, has allowed more than half the nation's states and 530 individual counties to skirt compliance. With air standards set to get even tougher in the coming years, its a sign that even the Bush Administration is acknowledging the need for stronger federal leadership on the environmental front, something Enck and her colleagues have been calling for since 2002.

"We truly want [the EPA] involved in these cases," Enck says.



Copyright © 2004 Sam Williams.