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
Last month, 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 environment."
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, has 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 sustainable city."
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 rented units.
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 adults."
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. Â