States move to fill void after EPA drops probes

Power plants to be sued over pollution violations

November 09, 2003|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - The attorneys general of New York, New Jersey and Connecticut say they are ready to open a new round of litigation to force power plants to make billions of dollars of pollution-control improvements after the Bush administration's decision to abandon more than 50 investigations into violations of the Clean Air Act.

The state officials said they would move quickly to fill some of the void left by the Environmental Protection Agency, which decided last week to drop the investigations at the old coal-fired plants, a major source of the air pollution that drifts over the Northeast.

But the officials said that the states had far fewer resources than the federal government did to battle one of the nation's most powerful industries and that they would have to focus their actions against fewer utilities.

Still, the states, working with national environmental groups, will have leverage in whatever suits they do bring. Under provisions of the Clean Air Act, any individual can sue over pollution violations and seek huge fines that could force some of the utilities back to the bargaining table and reduce pollutants.

And the fight, which could be joined by other states and pit the Northeast against utilities in the Midwest and the South, could introduce a volatile new type of regional warfare into next year's presidential election.

"There's no question some of these cases are so egregious that court action is inevitable," said Connecticut Attorney General Richard Blumenthal, a Democrat. Blumenthal said he had identified at least 10 power plants in the Midwest, South and other regions that had been the subject of EPA investigations and would make likely targets.

Industry officials said new lawsuits would be counterproductive and delay improvements in air quality.

Before the agency decided to start dropping investigations, it had referred at least 13 more enforcement cases to the Justice Department, which can bring lawsuits against pollution violators, said Eliot L. Spitzer, New York's attorney general. Spitzer, a Democrat, said he was waiting for the EPA to provide information, which has not been made public, on those referrals.

"Assuming these plants affect New York," Spitzer said, "then we will bring these cases" if the Justice Department does not. He said New York might also file suits against other plants that were at earlier stages of investigation by the EPA.

The agency's policy change, he said, "reflects a total schism" in a decades-old partnership between Northeast states and federal environmental officials to enforce clean-air laws. In the past, when states have threatened legal actions of their own, the agency has toughened its approach to enforcement or sought compromises among the competing interests.

The states and a number of major environmental groups, including the Natural Resources Defense Council and the Sierra Club, have used the provision for citizens' suits hundreds of times over the years to force settlements with polluters, though environmental advocates and state officials typically prefer the EPA to take charge.

The agency disclosed the policy change to its enforcement lawyers on Tuesday. Some of the lawyers said they had been told that even investigations over violations that occurred years ago could be pursued only if the plants were in violation of newly revised and more lenient rules that take effect next month.

Until now, the rules, known as New Source Review regulations, had generally required older coal-fired power plants and oil refineries to add new pollution controls if they were modernized in ways that increased harmful emissions.

But the revised enforcement standards, which grew out of industry complaints to Vice President Dick Cheney's energy task force two years ago, create substantial exemptions for industry and would halt investigations that were nearing completion at nearly 50 power plants owned by 10 different utilities, EPA enforcement attorneys say. Officials at the agency confirmed the policy shift but said some new lawsuits were still possible.

The Bush administration and industry representatives have strenuously defended the new rules, saying that the old standard was confusing, costly and inefficient, and that it stifled power-plant expansions. The new standard, coupled with other changes, will reduce pollution, they say.

Having won a big victory at the EPA, the industry is taking seriously the threat from the states, singling out Spitzer.

"His apparent purpose is to perpetuate costly and counterproductive litigation instead of allowing real solutions to take hold," Scott Segal, director of the Electric Reliability Coordinating Council, said in a statement. The new rules, Segal said, will "produce tangible benefit for emissions control, workplace safety and electric reliability."

Now that the EPA has changed the rules, Segal said, the government "should not pursue new enforcement actions for projects that the law now recognizes as lawful."

But while Bush administration officials had long advocated softening the rules for future plant upgrades, critics say they had generally indicated that they would continue to enforce violations of the old rules.

"This issue is a slam-dunk, politically, in the Northeast," said Connecticut's Blumenthal. "I'm surprised the Bush administration has been so heavy-handed. They are really creating a political liability."

But given the tight budgets at the state level, the industry as a whole might not face as much risk as it would if the EPA were involved.

"We have to focus on the worst of the worst; we can't take a scattershot approach," said Peter C. Harvey, New Jersey's attorney general, an appointee of Gov. James E. McGreevey, a Democrat. Harvey said he was "highly likely" to file suits.

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