Victory for smog

Our view: Appeals court's rejection of EPA rules governing cross-state air pollution a big blow to clean air efforts in Maryland and elsewhere

August 23, 2012

It's been a crummy summer for breathing in Maryland. August has seen five Code Orange days, where ozone has been so bad that the air poses a health risk for sensitive individuals, including children, the elderly and the infirm. But that's a big improvement over June and July, when Maryland had a total of 17 Code Orange days and four days of Code Red, when people are warned to stay indoors. In June, Maryland experienced its most polluted air in five years.

Altogether, there have been 26 days of Code Orange or worse, compared to 24 such days at this point last year. That's not much progress for a state that's been steadily cracking down over the past decade on major sources of air pollution, including emissions from motor vehicles and power plants at a cost of hundreds of millions of dollars.

The problem is that at least half of the ozone in Maryland (and at times, up to 70 percent) originates out of state and is blown here by prevailing winds. Aging, out-of-state coal-fired power plants are regarded as the single greatest culprit, but their emissions cannot be regulated from Annapolis or any other single state capital.

Enter the U.S. Environmental Protection Agency, which finalized badly needed rules last year to help downwind states like Maryland from being victimized by smog originating in places such as West Virginia and Ohio. The Cross-State Air Pollution Rule (more commonly called the "good neighbor rule") would have significantly reduced ozone and the sulfur dioxide and nitrogen oxide that create it.

But that effort suffered a serious setback this week with a 2-1 ruling by the U.S. Court of Appeals for the District of Columbia that struck down the regulations. The majority found the EPA had overstepped its authority — although the evidence strongly suggests it was the court that ignored precedent and has, to borrow a favorite phrase of conservatives, legislated from the bench.

Republicans were delighted by the ruling because it continues their narrative of an EPA that is out of control, harming the U.S. economy and interfering with states' rights. But cracking down on cross-state pollution is an effort that dates back to the George W. Bush administration, which recognized the need to upgrade (or shutter) polluting power plants.

The real consequence of the ruling is this: hundreds, if not thousands, of premature deaths from dirty air as polluting power plants are kept in service. It's also a setback for U.S. producers of natural gas, a group the GOP claims to endorse. The burgeoning U.S. natural gas industry was well-positioned to provide fuel for start-up power plants.

What might have cost consumers in some states $2.8 billion in higher electricity costs would have provided $120 billion in annual health benefits, according to EPA estimates. Even if such projections were off by 50 percent in either column, the trade-off would still represent a huge win for the general public.

The EPA needs to appeal this adverse decision to the full appeals court or possibly even the Supreme Court. Too much is at stake to waste several more years rewriting the rules or negotiating with opponents who want to draw out the process as long as possible. And the highest court, while clearly business friendly, has not been wholly opposed to environmental regulations, having given the green light to the EPA to regulate greenhouse gas emissions and address climate change.

We appreciate that other states would like cheap electricity, and it's hardly a surprise that the slumping U.S. coal industry sees its livelihood as threatened, too. But at some point, the impact of dirty air on a majority of Americans must be taken into account. It's their lungs that unwillingly underwrite that less-expensive energy by breathing unhealthy air.

Let electricity customers bear the true cost for their service rather than force asthma patients hundreds of miles away to pay the price. Is that really so revolutionary an idea? In another context, it might simply be called being a good neighbor.

Maryland has put its regulations where its mouth is with some of the strictest air pollution rules on the East Coast. But how much good do they do if the majority of the problem originates elsewhere? Only federal intervention can make a difference.

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