Emissions and EPA omissions in court

After a federal appeals court struck down the Bush administration's main clean-air initiative in a lawsuit filed by North Carolina, some folks may have gotten the impression the state didn't want tough new air pollution standards.

That's not the case, but the legal ramifications illustrate how complicated the business of regulating air emissions has become. Some background:

In 2002, the N.C. General Assembly approved the Clean Smokestacks Act, requiring utility companies to clean up their air emissions beyond then-current standards. One reason for the bill: It gave North Carolina better legal standing to challenge the pollution produced by out-of-state utilities that blew into this state on prevailing winds.

The state has sought reductions in out-of-state pollution in several ways. It filed a petition in 2004 asking the EPA to crack down on pollution produced in 13 upwind states. North Carolina argued that pollution from those states ends up here and makes it difficult for this state to reach its pollution-reduction goals.

The EPA denied that petition, but in 2005 it did issue new air pollution standards in 28 states, most of them in the east. It mandated reductions in emissions that produce fine particles and ozone that affect the eastern region. This initiative, known as the Clean Air Interstate Rule, used a cap-and-trade system that allows utilities to buy and sell pollution credits. While the program overall would produce lower pollution, the credits would allow some companies in some areas to keep on producing emissions. Duke Energy argued in a challenge that the rule wouldn't give the company sufficient emission allowances. In a separate challenge, North Carolina argued that the cap-and-trade program would allow some upwind utility companies to produce emissions that would foul the air North Carolinians breathe and make it harder for urban areas to meet their obligations under the Clean Air Act.

The U.S. Court of Appeals for the District of Columbia struck down the Clean Air Interstate Rule entirely. The court said there were “more than several flaws” in rejecting the rule, but noted that states can still challenge upwind pollution through the petition process that North Carolina had already tried. That may strengthen the state's appeal of the EPA's earlier rejection of its petition, but in the murky business of regulating polluted air, there are no sure things.

Meanwhile, the state has one other challenge to upwind pollution. The attorney general's office has sued the Tennessee Valley Authority, arguing its generating plants produce excessive pollution that degrades air here. The state is asking U.S. District Judge Lacy Thornburg to force TVA to bring about quicker reductions in emissions from coal-fired plants.

Much is riding on Judge Thornburg's opinion – including the fate of thousands of N.C. citizens with severe respiratory problems. So far, their federal government has failed them utterly in their quest for unpolluted air.