Sunday, August 29, 1999
Smog standards in limbo
Tougher emission rules blocked by court battle
BY PAUL BARTON
Enquirer Washington Bureau
For Dr. Jeff Craven, an emergency room physician at Christ Hospital, it was a predictable summertime pattern that had caught the attention of environmental officials long concerned about health effects of air pollution.
People with chronic bronchitis, emphysema and asthma would come to the hospital, finding it even harder than usual to breathe because of the smog-inducing hot weather.
“It makes it a lot more difficult to tolerate if you have underlying pulmonary conditions,” Dr. Craven said, adding that many heart patients also suffer more during summer air pollution peaks.
In 1997, the U.S. Environmental Protection Agency thought it had finally developed a new set of smog regulations that would provide signif icant relief to such individuals.
But now that plan has been stopped in its tracks, accelerating the debate over how far the EPA can go to clean up the nation's air and pitting industry against environmentalists.
A three-judge panel of the District of Columbia Circuit Court of Appeals this summer struck down the agency's new rules and put a stop to a related plan to force Midwest ern states, especially those in the Ohio River Valley region, to reduce emissions from older coal-fired electric power plants.
The EPA and environmentalists were stunned.
EPA Administrator Carol Browner referred to the court's actions as “bizarre” and “extreme.”
“The cumulative effect of both of those decisions was a shock,” said Dianne Crocker, an economist at Environmental Data Resources Inc. “It made me wonder what kind of authority they do have.”
The legal challenge was led by the American Trucking Associations and enthusiastically joined by a host of major Midwest utilities, including Cincinnati-based Cinergy and Ameri can Electric Power of Columbus.
“This is a very serious issue for our industry, and it so happens it is a very serious issue for a lot of other industries at the same time,” said Allen Schaeffer, environmental policy expert for the trucking association.
Industries opposed to the new regulations put forth estimates of compliance costs that ranged into the hundreds of billions nationwide.
In Cincinnati, the impact of complying with the new regulations was seen as costing the community at least $100 million a year, according to the Greater Cincinnati Chamber of Commerce.
Some of the steps local leaders envisioned as necessary included more sales of reformulated motor fuels and enhanced vehicle emissions programs, along with a variety of new controls on business and industry.
“A lot of that money could leave the community,” said Eugene Langschwager, environmental policy expert for the Greater Cincinnati Chamber.
For 20 years, the EPA has been gauging smog levels in Cincinnati and other cities by looking at concentrations of ozone during peak one-hour levels in the spring and summer.
Cincinnati had been struggling for years to get out of nonattainment status under the old standard, a designation that was seen as hampering economic development efforts.
Only this May did officials learn from the EPA that the city was scheduled to be redesignated to attainment under the 1979 standard, although that redesignation is still not official.
The new standards put forth in 1997 called for lowering allowable concentrations of ozone, the prime ingredient of smog, from 0.12 parts per million to 0.08 parts per million and looking at peak eight-hour periods of highest pollution to gauge violations.
It was universally seen as a much more stringent air pollution control regime, but the EPA said it was justified based on new medical evidence about the effects of ozone on the human lung.
Meanwhile, the EPA was to determine if cities met the new standards and start reclassifying them by 2000.
“If the process had not been interrupted, Cincinnati and many other cities east of the Mississippi would have qualified as nonattainment under (the new) eight-hour standard,” said David Wooley, counsel to the Clean Air Task Force, a lobbying group.
The D.C. Circuit, however, said the EPA had failed to justify its new standards.
“They never explained why they picked 0.08 and not 0.07,” said Richard Lazarus, professor of environmental law at Georgetown University.
While EPA is fighting to get the full D.C. Circuit to overturn both decisions of the three-judge panel, it could take until next summer or fall to get a rehearing.
Many utility officials are confident the court will be unwilling to move on the related emissions reduction plan aimed at Midwestern power plants until uncertainty over the 1997 standards is removed.
“It's all on hold now,” Mr. Lazarus said.
That eases the pressure on companies such as Cinergy and AEP.
Environmentalists and the EPA consider the older coal-fired power plants in the Midwest and along the Ohio River, including several operated by Cinergy or AEP, among the nation's biggest pollution problems.
Of the 35 power plants nationwide that emit the most nitrogen oxides — a key ingredient in the formulation of ozone — 13 are in the Ohio River Valley region, the EPA says.
Of the 10 states that lead the nation in emissions of nitrogen oxides, Ohio and Kentucky are at the top, the most recent available EPA statistics show.
One generating facility in western Kentucky, the Paradise plant in Muhlenberg County, generates more nitrogen oxides than all of the utility plants in New York, the EPA said.
Because such pollution drifts east, states in its path are going to continue to have serious problems until plants in the Ohio River Valley are cleaned up, said Patricio Silva of the Natural Resources Defense Council, an environmental research and lobbying organization.
Midwestern utilities take exception.
“Emissions from power plants have been going down for a decade or more,” said Dale Heydlauff, vice president for environmental affairs at AEP.
“I don't think power plants are a threat to public health. It is irresponsible for government officials to per petuate these myths and fail to recognize the significant steps taken to control emissions from these plants.”
Until the court decision, Mr. Heydlauff said, utilities were looking at having to raise rates to pay for controls for which they saw no firm justification.
Cinergy officials also tended to dismiss the charges.
“We are in compliance,” said spokeswoman Kathy Meinke. “As far as groups disagreeing with us, what is wonderful about the United States is that everyone is allowed to have an opinion.”
Cinergy, like other companies, did not think the EPA's new air pollution standards were based on “sound information,” she said, explaining why the company joined the lawsuit.
Analysts on both sides of the fight are wondering what comes next.
Environmentalists say miserably hot summers such as this year's will grow even more uncomfortable if new air pollution standards are not in place.
“If it was just the high heat and humidity, people wouldn't necessarily have shortness of breath or irritation when breathing,” Mr. Silva said. “Being exposed to ozone is like getting a sunburn inside your lungs.”
The current state of legal limbo “is very dangerous for public health,” Mr. Wooley added.
Environmental groups are confident the rulings against the EPA will be overcome eventually.
“I think they are both bad law and they are both going to be overturned,” said Rebecca Stanfield of the Public Interest Research Group. “The electric utility industry is responsible (for the pollution). At the end of the day, they are going to have to clean up their power plants.”
But Mr. Lazarus, the Georgetown professor, is not so sure.
“These are judges whose reasoning has force with other members of that court,” he said.
Business groups and utilities say they are not opposed to cleaner air, just being reasonable about how to get there.
“If we shut down every manufacturing operation in this country and put people out of work and we're still not (meeting new standards), what good does that do?” asked the Greater Cincinnati Chamber's Langschwager.
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