Attorneys general are taking the lead in trying to force a crackdown on power plants that pollute across state lines.
Eliot Spitzer, New York's attorney general, shaped national securities policy when he took on Wall Street's unsavory anti-investor practices- -federal regulators having dropped the ball. Now that Spitzer is turning his legal guns on federal pollution control programs, New York's chief lawyer could wind up taking charge of how the nation's air quality laws will be implemented.
That's hardly the ideal way for the federal system to work. But state officials are growing ever more impatient with the U.S. government's feckless performance in recent years in shying away from difficult choices on environmental threats that concern the entire country. Spitzer has led other attorneys general in neighboring Northeastern states in taking on the Bush administration and big coal-burning utilities in a series of lawsuits designed to force federal regulators to crack down on power plants that export harmful pollutants across state and regional boundaries. "Yes, it's the federal government's job," Spitzer says, "but it's also our job" to protect New York residents when Midwestern and Southern power plants release health- threatening pollutants that blow downwind in New York's direction. "We have standing to sue under the Clean Air Act, and we're using that standing to protect the quality of air for New Yorkers."
Because emissions drift in from coal-fired Ohio Valley generating stations far to the southwest, New York and other Eastern Seaboard states could shut down their own power plants and take all motor vehicles off the road and still not comply with federal Clean Air Act standards. Midwestern utility practices may keep electricity rates lower for Midwestern customers, but the consequences show up downwind in forests, lakes and lungs in Northeastern states.
The issue reveals a troublesome fault in the federal structure for regulating environmental threats. Northeastern states can't order cleanups outside their boundaries, but so far neither Congress nor the U.S. Environmental Protection Agency has made the tough calls required to settle the conflict. "The federal government has been basically abdicating the field across the board," says Peter H. Lehner, a former Natural Resources Defense Council attorney who leads Spitzer's environmental bureau.
State attorneys general are stepping into the breach, and Spitzer has been particularly aggressive, filing lawsuits against 17 coal-fired power plants in Indiana, Kentucky, Ohio, Virginia and West Virginia. Last spring, Spitzer and federal pollution-control lawyers settled one case with a Virginia utility that agreed to spend $1.2 billion over 12 years to cut sulfur dioxide and nitrogen oxide emissions from eight aging installations. In a separate August ruling, a federal judge found that the Ohio Edison Co. violated EPA rules by substantially modifying a 2,000-megawatt plant without installing state-of-the-art emission controls. Spitzer and other state attorneys general also have gone to court to block the Bush administration from easing new source review rules and to force EPA to start regulating carbon dioxide emissions.
The administration's "Clear Skies" initiative is built on the sensible concept of emissions trading. But state regulators read the fine print as delaying compliance too long while curtailing the opportunities the law now provides for states or citizens to prod federal action by petitioning EPA and the courts. There's reason to suspect that utilities will be content to keep outmoded facilities running several more years while legal and political skirmishing plays out. Spitzer's lawsuits have been winding through the courts since 1999, and "inevitably what litigation does is put off decisions at least five years or maybe 10 years," notes Kenneth A. Colburn, who directs an organization of air-quality regulators from New England, New York and New Jersey.
That makes it all the more important that state governments are now forging ahead to experiment with their own strategies to address global warming and other nationwide air-quality problems. California, for instance, is prodding auto manufacturers to curtail carbon dioxide from tailpipes, and New York Governor George Pataki invited Northeastern state governors to devise a region-wide cap-and-trade system to reduce CO2 from power plants. As Utah's governor, new EPA Administrator Michael Leavitt was instrumental in negotiating a multi- state agreement to deal with regional haze across the West's scenic vistas.
These days, Congress doesn't seem up to its constitutional role of sorting out regional differences; so maybe Midwest and Northeastern governors should get the dialogue going themselves. Spitzer makes no secret that he'll run for New York governor two years from now, and he acknowledges that litigating case by case over how federal law should be applied may not be the best way to produce timely and predictable regulatory policy. "I am not one who says the Clean Air Act is the only answer," he says. "There are a lot of different approaches that are being discussed that might work better."
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