Call it a characteristic display of Big Apple chutzpah. Last month, city and state attorneys scored a
$1.1 billion legal victory against out-of-state polluter
Ohio Edison for violating the federal Clean Air Act, which regulates pollutants such as sulfur dioxide and nitrous oxide. But now, the New York State Office of the Attorney
General and New York City Corporation Counsel, along with half a
dozen other governments in the Northeast and West Coast, are going
after carbon dioxide.
Carbon dioxide is currently unregulated by the federal Environmental Protection Agency. The chemical, CO2, is a natural byproduct of fossil fuel combustion.
Though benign from a chemical safety standpoint, its ability to absorb
and retain heat has led many scientists and governments around the
world to attribute a recent rise in global mean temperatures to
unchecked industrial and automotive exhaust.
Many business groups and even a few scientists challenge this so-called
"greenhouse effect" theory, but evidence of rising carbon dioxide in
the earth's atmosphere is incontrovertible. A study of atmospheric
concentrations at the Mauna Loa observatory in Hawaii, the longest
continuous study on record, reported an 18.8 percent increase in the
mean concentration of carbon dioxide between 1958 and 2003.
With the Bush Administration currently distancing itself from the Kyoto
Protocol, the recently-enacted treaty forcing developed nations to
reduce "greenhouse gas" emissions, state and city governments with
financial and political stake in climate stability see the legal system
as the best way to reduce U.S. emissions.
"I think if we want to see progressive, responsible environmental
policy, it's going to have to come from the state and local
governments,'" says Judith Enck, policy advisor to New York Attorney
General Eliot Spitzer. "If you get the West Coast and the Northeast
teaming up, sooner or later you get a national global warming policy
even if the federal government won't act."
Bush's Clear Skies Act Ignores Carbon Dioxide
just about the same time Ohio Edison was agreeing to a court-mandated
installation of smokestack-scrubbers at its largest coal-burning power
plant, the Bush Administration's efforts to spare other power companies
the same indignation were stalling out in Congress.
Dubbed the Clear Skies Act, the Bush air pollution plan would abandon a
decades-old policy of forcing power companies to clean their facilities
whenever they expand or upgrade production -- a policy known as "new
source review" by insiders -- in favor of a market-oriented policy
in which clean companies earn pollution credits which they can then
sell to dirtier companies as a monetary reward for compliance, This
policy is known as "cap and trade."
According to the Bush administration, this market-driven system would
reduce sulphur dioxide, nitrogen oxide, and mercury emissions by as much
as 70 percent over the next two decades while at the same time reducing
the number of costly lawsuits. Opponents, however, see major flaws:
During the first decade of the plan, or at least until 2012, the
so-called Bush "cap" would actually be lenient enough to relieve power
companies from the compliance duties already required under new source
review. More importantly, however, the Bush plan makes no mention of
carbon dioxide whatsoever. Although Bush promised to regulate during
the 2000 election campaign, his administration voided the promise less
than 60 days into his first term, citing recessionary concerns.
Looking At 19th Century Law To Get Around Bush In The 21st
Since then, Democratic-voting coastal states such as New York,
Massachusetts and California, and even swing states such as Iowa, have
been looking for alternate ways to remedy the rising cost of severe
weather storms and lost wetlands. Environmental lawyers have found their remedy not in the
federal case law built up since the Air Pollution Control Act of 1955
but in the common law that governed most environmental disputes in the
days of limited federal authority.
David Doniger, policy director for the Natural Resources Defense
Council, says the 19th century nuisance laws that once allowed cities
such as New York to ban slaughterhouses, rendering plants and other
unpopular businesses and to regulate their activity across
jurisdictional lines offer an opportunity to go after fixed-point
carbon dioxide producers. Doniger cites, in particular, State of
Georgia v. Tennessee Copper, a 1907 case
that worked its way all the way up to the Supreme Court. In that case,
the state of Georgia asserted its legal right to limit the tree-killing
sulphur dioxide emanating from a copper smelter operating in Tennessee.
In 1915, the Supreme Court sided with Georgia, setting up the modern
framework for interstate environmental regulation.
"This is old, hallowed stuff," says Doniger of the 1907 case. "A lot of
it was put aside or put on pause during the last few decades because
most kinds of pollution are now addressed by the Clean Air Act."
Most but not all.
As noted previously in this topic page, the Bush administration's
undisguised antipathy to the decades-old new source review policy has
already created a vacuum of leadership which many states and cities are
rushing to fill. That carbon dioxide remains off the federal
enforcement agenda only adds to the shifting legal momentum.
"It's ironic," observes Frank O'Donnell, president of the non-profit
monitoring group Clean Air Watch. "Historically more liberal groups
sought to make sure the federal government had primacy in matters of
this sort. Since the Bush administration has in effect dropped the
ball, however, it is now up to state attorneys general to clean up the
Last summer, eight states, including New York, together with New York
City and the Natural Resources Defense Council, filed lawsuits in the Southern District of New York
against five power companies which, added together, account for 10
percent of the country's carbon dioxide emissions. The list includes
Ohio-based utilities American Electric Power and Cinergy, Atlanta-based
Southern Company, Minneapolis-based Xcel Energy, and the
federally-owned Tennessee Valley Authority. The since-consolidated
lawsuit demands that defendants reduce their carbon dioxide emissions.
Pat Hemlepp, spokesman for American Electric Power, says his company is
already reducing its carbon dioxide emissions voluntarily.
"We're the leader in our sector on carbon [gas reduction] efforts,
which is why, frankly, we were quite surprised to be one of the
companies named in the suit," says Hemlepp.
Then again, American Electric Power is also the country's largest consumer of coal and a
strong supporter of the Bush administration reasoning that any national
carbon dioxide standards take into account growing industrial
competition from countries such as India and China, a Kyoto treaty
signatory that, under the treaty terms, won't have to curb its
emissions until the next decade.
An Environmental Scopes Trial?
Economic issues aside, the current case pushes the carbon dioxide
debate out of Congress, where the Senate Environment and Public Works
Committee is currently locked in a 9-9 stalemate on the Clear Skies Act
thanks to moderate Rhode Island Republican Lincoln Chaffee and Vermont
Independent Jim Jeffords, and into the courts. Green Car Congress, a
blog that tracks environmental issues,
already likened the case to Tennessee v. John Scopes, the
sensational 1925 trial in which attorneys debated the scientific
validity of Darwin's theory evolution.
In a statement issued at the time of last summer's filing, Michael
Cardozo, head of the New York City legal department, described the
city's participation as response to global warming concerns and "part
of the Bloomberg Administration's commitment to maintaining a clean and
Speaking after last month's court victory, Judith Enck of the Attorney General's
Office sees things in even more dramatic terms. Like
O'Donnell, she sees ironic payback for a Republican party that, during
its own time as a minority power, sought to transfer federal authority
on issues such as environmental regulation back to the states.
"When [conservatives] were designing the new federalism, they weren't
banking on an aggressive attorneys general," Enck says. "The federal
government can assert its power over much more territory and more
jurisdictions, but an aggressive, focused attorney general can
accomplish more than a lumbering federal bureaucracy."
TRACKING CITY CARBON MONOXIDE DETECTOR USAGE
While New York officials focus on carbon dioxide, Boris Riabov, a
sophomore at the Bronx High School of Science, has been keeping tabs on
its more dangerous cousin: carbon monoxide.
Based on data from a recently collected school assignment, Riabov
estimates that nearly a third of Manhattan residents have yet to
install -- or have their landlords install -- carbon monoxide detectors.
Riabov, 16, created the survey for a class called Science
Instrumentation and Problem Solving (SIPS). As noted in a December 2003
column, carbon monoxide detector sales have historically been
tragedy-driven. People read grisly stories such as the
October, 2004 suffocation deaths of an Albanian
family in its Staten Island home due to a blocked exhaust vent, and go
out and buy detectors. A city law enacted last November seeks to break
that pattern, however, mandating the purchase and installation for all
Taking inspiration from that law, Riabov created an anonymous
questionnaire which he circulated at various public libraries in and around
Washington Heights. The questionnaire asks people to list carbon
monoxide's effects and to report the number of detectors in their
apartment or house. Although 93 percent of the survey's 70 respondents
knew about carbon monoxide and almost every returned questionnaire
listed at least one negative effect caused by the gas, 30 percent of
respondents reported no carbon monoxide detectors.
"That was most surprising to me," says Riabov. "I also found that ten
percent of homes with children didn't have a detector, and one of the
facts about carbon monoxide is that it affects children quicker than
Less surprising was the statistic showing that 44 percent of
respondents reported new detectors in their homes since November 1,
2004, a sign that the law, while not reaching everyone, has certainly
affected a significant number of people. Riabov says he hopes to use
this finding as a foundation for a more ambitious study, documenting
code compliance later this year.
"There are a couple contests I'd like to enter," he says. "If you get
approved, they give you a grant to get started. I'll have to wait and
see if they give me a grant."
Riabov completed his survey just days before the latest news story
involving the odorless, colorless gas firefighters and parametics call
the "silent killer." On March 31, police in the Douglaston section of
Queens discovered the bodies of a hearing-impaired husband and wife.
The medical examiner has yet to determine the cause of death, but
police officials speaking to the Associated Press believe the couple
left their car running in the garage and suffocated from the fumes
after failing to hear their alarm go off.
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