Protect endangered air [Editorial]

Our view: Even a favorable Supreme Court decision won't go far enough to shield Maryland and other East Coast states from cross-state air pollution

December 10, 2013

The Washington-Baltimore region is ranked worst on the East Coast for smog, also known as ground-level ozone. The common air pollutant shortens lives, and its presence causes those alerts when children, the sick and the elderly are warned to stay indoors. Only portions of Texas and California are rated worse within the United States.

That gave Marylanders a considerable interest in the oral arguments before the U.S. Supreme Court on the issue of cross-state air pollution — conducted Tuesday despite the snow storm that shut down much of Washington. As much as 70 percent of the ozone found in Maryland originates elsewhere, and unless the U.S. Environmental Protection Agency takes action, there's precious little that can be done about it.

Just last year, the EPA published new cross-state pollution rules — also known as the "good neighbor rule" — to reduce the health hazard, but that effort was halted in August when the U.S. Court of Appeals for the District of Columbia ruled that the agency overstepped its authority. That East Coast states would be at loggerheads with their Midwestern counterparts over air pollution should come as no surprise, and with Congress paralyzed by partisanship, a legislative solution is unlikely. That leaves it to the EPA and the courts to find an answer.

The stakes are high. Much of the pollution comes from aging coal-fired power plants, and Rust Belt states have grown accustomed to bargain energy prices made possible by 50-year-old facilities that have been exempted from many clean air rules in the past. The states where such facilities are most commonly located include Indiana, Ohio and Illinois.

Maryland produces air pollution, too, from its own power plants, factories and automotive tailpipes, but the state has made significant strides in reducing emissions in recent years. Ratcheting those regulations up any further seems ridiculous (and unnecessarily costly) when so much of the pollution can be traced to out-of-state power plants.

The EPA has estimated that the good neighbor rule might cost Midwesterners $2.8 billion annually, most of it in higher energy costs. But the potential gains for living, breathing human beings greatly outweigh that sacrifice: An estimated $120 billion in health benefits each year, according to the agency. And the ratio of benefits over costs may be even more lopsided than that as abundant natural gas is likely to keep a lid on electricity prices.

But it's really much more than just about money. People are dying prematurely because of exposure to pollutants like ozone and fine particulates blowing into the East Coast from the west. Federal intervention is clearly the only realistic answer, and the case before the high court is mostly about procedure, not about determining what serves the common good.

As much as some conservatives would like to paint this dispute as about an out-of-control EPA, it's really about settling a dispute between states — with science on the side of the East Coast victims. The pollution is clearly there. Now, it's about forcing the guilty parties to pay to reduce it, rather than those who have the misfortune of living downwind. The EPA's own involvement dates back to the George W. Bush administration.

On Monday, Maryland and seven other East Coast states petitioned the EPA to require nine upwind states to curb their dirty air — even beyond the rules considered by the Supreme Court on Tuesday. The action shows the growing frustration over the issue, which really comes down to holding the worst polluters accountable. From the region, only New Jersey Gov. Chris Christie's signature was missing in an obvious nod to the Republican's desire to be his party's presidential nominee in 2016.

It's difficult to speculate which way the justices will rule from Tuesday's questions in such a complex case (with oral arguments given 90 minutes instead of the typical 60). The Supreme Court has become notoriously pro-business, but striking down the cross-state rule would clearly hurt businesses located downwind. After all, if nothing can be done about the 70 percent of the pollution coming from elsewhere, regulators will have to clamp down on the remaining 30 percent. Justice Samuel Alito Jr. has recused himself from the case, which should be helpful, but environmentalists are still not confident, as a 4-4 split would let stand the appeals court decision.

What's called for is simple pragmatism. Maryland and the other states suffering from toxic air, most commonly in the summer months, can't change the direction of the wind. Reducing air pollution requires the cross-state rule which, incidentally, has been on the books in some form since 1977. The right of the federal government to regulate pollution in such cases was recognized by the Supreme Court 70 years earlier.

Why is there a federal government if not to intervene in a circumstance like this? Let Midwest electricity customers pay for the true cost of their power rather than take it out of the lives of asthma patients living downwind.

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