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 and the surrounding region. Still, with the prevailing winds
bringing in a fresh (or, rather, stale) supply of pollution every day, local levels
remain disappointingly high when measured against most other regions of
The Bush Administration says it would like to change that. In 2002 it
proposed a new rule that it says will reduce emissions faster by
introducing a more flexible permit process. Critics, however, argue
that "flexibility" is simply a code word for relaxed standards and are
fighting the proposal.
The Bush argument, which parallels that of administration allies
in the coal and power industries, has it that the current interpretation of
"major" is absurdly low. In 1999, for example, the Environmental Protection Agency filed seven lawsuits against utilities that had modified their facilities without
reapplying for a new permit. In one suit, the agency cited a new
furnace floor and replaced steam drum parts as sufficiently major
Utility industry lobbyists and the agency's current leadership argue that such strict interpretations -- and the cost of buying the new "best
available" technologies that goes into qualifying for a new
permit -- only encourages power companies to let their aging power
plants grow dirtier and less efficient.
Given the challenge of cleaning up its own skies, you would think that New
York City would be sympathetic to such arguments. Not so. 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 Environmental Protection Agency’s rule change.
For the city, the issue comes down to health care costs: More upwind
pollutants means more asthma and more hospitalization cases.
"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
For decades, Republican lawmakers
and their conservative Democratic allies pushed for compromises that
would take regulatory power away from the Environmental Protection Agency. Now, states and municipalities, even as they flex their own regulatory muscles, are insisting that the federal agency retain its tough Clinton-era standards.
The one state leading the way is New York. Attorney General Eliot
Spitzer has built on the successes of his predecessors in going after
the out-of-state polluters whose smokestacks contribute to acid rain
and other local problems.
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. Until last November, when the
Environmental Protection Agency 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.
City lawyers, meanwhile, have undergone a role reversal. Only four years ago the city was the defendant in
a civil lawsuit citing the Clean Air Act. Settled in 2000, the lawsuit
stemmed from EPA charges that the New York City Department of Sanitation had been
improperly 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
are a series of epidemiological surveys studying the direct and indirect health
impacts of air pollution on city residents.
One city attorney, speaking anonymously, says the Law Department was
"happy to jump in" on the states' case, albeit in a background role.
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
This linkage has been enough for the states’ legal argument to include dramatic information about health care in the city. Thanks in part to the city's data,
federal judges have agreed to put the federal 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 December 23, just three days before the revised policy was slated to go
Mike Leavitt, the new commissioner of the Environmental Protection Agency, says the agency will "vigorously defend" the new rule. He also maintains, however, 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 has pushed the wind-borne
pollutants debate into a new direction, unveiling the "Interstate Air
Quality Rule." Aimed at the 29 states that currently fail to meet
federal standards, the new rule would nationalize the "cap and trade"
pollution credits program -- an outgrowth of the 1990 Clean Air Act.
"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 Republican 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, it also
acknowledges that, like it or not, the federal government has to play a
stronger leadership role on the environmental front -- something Enck
and her colleagues have been calling for all along.
"The EPA has been missing in action when it comes to air pollution,"
Enck says. "We truly want them involved in these cases."
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