Clearing the air

October 29, 2003

UTAH GOV. Michael O. Leavitt won Senate confirmation to head the Environmental Protection Agency yesterday just in time to get slapped with a lawsuit by Maryland and 11 other states choking on EPA policies.

That should be a powerful signal to Mr. Leavitt, who prides himself on being a conciliator, to redirect the agency so that such legal battles are unnecessary.

But there is probably little he can do to reverse course on regulations finalized this week allowing aging, coal-fired utility plants and oil refineries in the Midwest to postpone installing modern pollution-control devices almost indefinitely. Environmental policy that favors business wealth over human health and the safety of the air, ground and water is directed from the White House, which is why former EPA chief Christine Todd Whitman had such a rocky tenure.

So Maryland's decision to join the other "downwind states" in challenging the regulations in court was more than justified. Federal courts appear to offer the only hope of relief from this major source of smog.

According to Maryland Attorney General J. Joseph Curran Jr., who has been battling the Midwest utilities since 1999, more than 650,000 Marylanders suffer from respiratory ailments. Those that can't be blamed directly on this region's filthy air are at least aggravated by it.

Robert L. Ehrlich Jr., the state's Republican governor, backed Mr. Curran's recommendation to file suit against the Republican Bush administration partly because of smog's impact on the Chesapeake Bay. A spokesman said Mr. Ehrlich was warned by Kendl P. Philbrick, acting head of Maryland's Department of the Environment, that bay cleanup goals will never be met if power plants in Ohio, Pennsylvania, Michigan and elsewhere are allowed to keep spewing nitrogen and other pollutants that wind up in Maryland waterways.

Unfortunately, the wheels of justice grind especially slowly in such complicated cases.

Mr. Curran and his fellow attorneys general first filed suit in 1999, contending the Midwest utilities had violated the Clean Air Act by upgrading their facilities beyond the permitted routine maintenance without installing the required pollution controls. Their court date in that lawsuit has been scheduled for 2005. Meanwhile, the Bush administration's new EPA regulations not only set weaker standards for the future but may undermine the pending case as well before it even comes to trial.

President Bush argues that he is taking the quickest path to cleaner air by making it cheaper for utilities to modernize, thus becoming more efficient. A dubious claim, but perhaps it gives Mr. Leavitt something to work with.

He was confirmed by an overwhelming majority - despite bipartisan distress at EPA policies - because he is competent and well-liked. So maybe he can jawbone those Midwest utilities and other polluters into cleaning up their act even before Congress and the courts make clear that's what the law requires them to do.

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