Feature > Investigative Report

Bad Air Day: New York Sues
to Clean Up Hudson Valley Skies
By Todd Paul . Photo by Roy Gumpel

Here in the Hudson Valley, we often take the purity of our clean mountain air for granted. But just how good is the air we breathe?

According to the federal Environmental Protection Agency and the American Lung Association, the air quality in the Hudson Valley, along with the rest of New York State, is surprisingly poor. In a report card issued in May, the ALA gave Ulster County a “D” rating, down from a “C” on the previous year’s report card. Dutchess and Orange Counties have both received “F” grades the last four years in a row. There is no grade for Delaware, Greene, or Sullivan Counties, due to a lack of information for those counties; but of the 26 New York counties graded, only one, Herkimer County, received a “B” rating, and none received an “A”. Eighteen counties got an “F”.

The grades reflect the number of high-ozone days each county has logged over a three-year period. Ozone is the main ingredient in smog and is created when sunlight bakes airborne nitrogen oxides and volatile organic compounds. These airborne pollutants are emitted from fossil-fuel-burning power plants, vehicle engines, chemical plants, and factories. (The “ozone hole” is a different issue altogether; an essential layer of ozone much higher in the atmosphere helps to shield us from the sun’s ultraviolet rays, and at this level, too little ozone is a health risk.)

According to the ALA, ozone presents a public health risk. It is especially hard on children, the elderly, and those with respiratory conditions such as asthma, emphysema, and chronic bronchitis; however, healthy adults can suffer from ozone as well because it burns lung tissues. According to the ALA’s 2002 publication Unhealthful to Breathe, “The impact on lungs can be as damaging as smoking a pack of cigarettes a day.... About seven percent of the hospital admissions in the summer can be attributed to the smog.”

It would be nice to think that New York State could clean up its air by reducing factory, power plant, and automobile emissions, but the reality is that most of the state’s air pollution problem is caused by coal-burning power plants in the Midwest. According to Marc Violette, a spokesman in Attorney General Elliot Spitzer’s office, about 75 percent of New York State’s air pollution comes from outside the state. “We could turn off every power plant in New York State, and put every car and bus up on blocks, and we’d still have an air quality problem,” Violette says.

That’s why Spitzer is suing power plant owners and the federal government, which recently announced rule changes that weaken the Clean Air Act. According to Spitzer, the rule changes will allow Midwestern power plants to pollute our air even more.

Previously, the state had looked to Congress and the EPA for relief from smog, but, says Violette, “Those two approaches... have proved almost completely fruitless.” Since he took office in 1999, Spitzer has taken the battle out of the political arena and into the courts by suing a number of power plants in Ohio, Virginia, West Virginia, and in western New York. And he’s been winning.

The list of Spitzer’s wins is impressive. Early this year he settled with the Virginia Electric Power Company, which agreed to put pollution controls on eight coal-fired plants in Virginia and West Virginia; the installation is projected to take 11 years and cost $1.2 billion. There has been a settlement with the Lovett plant in Sullivan County, New York, and with Cinergy, a company that owns 10 coal-fired plants in and around Ohio. In August Spitzer won a big victory against Ohio Edison, which owns a large coal-fired plant in eastern Ohio that produces nearly as much acid rain-causing pollution as all New York State’s coal-fired plants combined. The judge in the case ruled “resoundingly” in Spitzer’s favor, says Violette, and a trial is to be held in March to determine the remedy. The plant in question had violated the federal Clean Air Act from 1983 to 1998—knowingly, Spitzer contends.

Another big case is in the works against American Electric Power in Ohio, the biggest burner of coal for electrical generation in the United States. That case is expected to go to trial in a year before the same judge who ruled in Spitzer’s favor in the Ohio Edison case. And lawsuits are in progress against two plants in the Buffalo area owned by NRG Energy Inc., for violations of the Clean Air Act.

So far, Spitzer has gone after pollution controls rather than monetary damage awards. By contrast, the tobacco companies have agreed to pay $25 billion over 26 years to New York in compensation for enormous medicaid bills for smoking-related illnesses. The difference? According to Violette, it’s harder to prove an exclusive causal connection between poor air quality and poor health.

But it’s not hard to show that New Yorkers suffer from elevated levels of lung disease. For example, an article published in the Journal of Asthma in August 2002 concluded, “Hospitalization rates for asthma are higher in the northeast United States than in other regions.... From 1988 through 1996, the rate of hospitalizations for asthma as the primary diagnosis...increased in the Northeast, but declined in other regions.... These higher rates of asthma hospitalizations in the Northeast occurred despite a 9.3 percent decline in the age-adjusted rate for all hospitalizations in the region.”

Peter Iwanowicz is director of environmental health for the American Lung Association of New York State. Violette calls him “Peter the Lung” because of his range of knowledge in his field. Iwanowicz says the Hudson Valley had the highest ozone levels in the state in the summer of 2002, and was among the highest 10 regions nationwide; and despite the popular conception of air pollution as a city problem, ozone levels upstate now match or exceed those measured downstate.

The Northeast also suffers environmental and property damage as a result of Midwest smokestack emissions. Take a tour of the capital building in Albany and the guide will point out areas where acid rain, a product of air pollution, is literally dissolving the huge marble blocks of which the building is constructed. And environmental activists have long held that acid rain is a major problem for forests, lakes, and rivers. According to the EPA’s own Web site, acid rain kills trees and aquatic animals, damages ecosystems, and dissolves automobile paint, limestone, and marble buildings and statuary. The EPA also notes that sulfur dioxide and nitrogen oxides, the main components of acid rain, contribute to human morbidity and mortality from lung disease.

Environmental groups have been encouraged by Spitzer’s success in court against major polluters. But these court battles now appear to be minor skirmishes in a larger war. The Bush administration has busily rolled back environmental protections for three years—a recent New Yorker article lists the administration’s reclassification of various forms of mining waste as “fill” that can be dumped in valleys and streams, multiple attempts to open the Arctic National Wildlife Refuge and other public lands to oil exploration, and the “Healthy Forests” initiative, which, critics charge, largely benefits the logging industry—but its assault on the Clean Air Act, the New Yorker notes, is especially egregious. By redefining “routine maintenance” to include nearly anything plant owners wish to do, Bush has effectively nullified the rules that previously required modern pollution controls to be installed when old plants were expanded or updated. This move has been roundly criticized—the New York Times called it a “giveaway to Mr. Bush’s corporate allies,” and environmentalists say it will greatly increase air pollution. For example, according to the New Yorker, under the new rules the Detroit Edison plant in Monroe, Michigan, one of the worst air polluters in the country, will be able to emit an additional 40,000 tons of sulfur dioxide (the principal pollutant in acid rain) per year.

The Bush administration likes to say its new “Clear Skies” initiative would reduce power-plant emissions by 70 percent by 2018 if approved. In fact, according to the New Yorker, the initiative weakens laws already on the books that, if left alone, would cut pollution even more in a shorter period of time.

“We think one of the reasons the Bush Administration is working diligently to cut the heart out of the Clean Air Act is that they see...that the Clean Air Act works,” says Violette. He says Spitzer’s philosophy is “leave the Clean Air Act alone.”

Spitzer, along with the attorneys general of eight other states, was already in court challenging a rule change the Bush administration enacted in December, 2002. Now, joined by the attorneys general of Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New Jersey, Pennsylvania, Rhode Island, Vermont, and Wisconsin—and legal officers for New York City, Washington, DC, New Haven, and several other cities in Connecticut—Spitzer has sued to block Bush’s most recent changes to the Clean Air Act as well. “Under prodding from the White House, the EPA is changing the Clean Air Act in ways that will allow more pollution into the nation’s air rather than less,” says Violette. This, he contends, is a “clear violation” of the intention of Congress.

“If allowed to stand, this flagrantly illegal rule will ensure that, under the watch of the Bush Administration, Americans will breathe dirtier air, contract more respiratory disease, and suffer more environmental degradation caused by air pollution,” Spitzer said in an August 2003 press release.

“The Clean Air Act requires old power plants and other major sources of air pollution to install air pollution controls when they are modified and pollute more,” Spitzer explains. “EPA created an exception for ‘routine maintenance’ work. Now, EPA’s new rule dramatically enlarges the scope of the ‘routine maintenance’ exemption to the point that the loophole swallows the rule and once-in-a-lifetime projects costing tens of millions of dollars will be written off as routine maintenance.... The result of the new rule will be millions of tons of additional air pollution annually. EPA’s own studies show that this pollution kills thousands of Americans each year.... The federal government’s own data show that this pollution can be largely eliminated with negligible consumer price impact.”

Ironically, the section of the Clean Air Act that has been changed is the very one Spitzer’s office has used with such success to sue dirty power plants. “Make no mistake: the Bush Administration is gutting the Clean Air Act because it works, not because it does not work,” says Spitzer.

Other Northeast attorneys general are also seething over the EPA rule changes. “Today’s message from the Bush administration seems to be: Northeast Drop Dead. The administration is literally sacrificing the lives of people in the Northeast to appease the energy industry,” said Connecticut attorney general Richard Blumenthal in a joint press release from the attorney general offices of nine different states. Maine attorney general G. Steven Rowe commented, “It is unconscionable that the Bush Administration would put the financial interests of corporate polluters above the health interests of the American people.” And in an Associated Press interview, Massachusetts attorney general Tom Reilly said, “We are not going to sit by quietly and allow the energy interests in this country to receive special treatment while so many of our children and elderly are needlessly suffering from respiratory problems that are, in essence, brought on by bad environmental policy.”

“We believe that the rule changes—here in New York—could lead to almost doubling of sulfur dioxide emissions,” says Iwanowicz. “It’s a really dangerous policy.”

Spitzer and the other attorneys general believe the EPA rules changes are a result of secret meetings between Vice President Cheney’s Energy Task Force and energy industry lobbyists. In February 2002, nine attorneys general demanded that the EPA document these meetings, and the Sierra Club and Judicial Watch sued Cheney and the Energy Task Force to force disclosure of who attended the meetings. But despite a federal court ruling that records of those meetings were subject to disclosure, Cheney has refused to release them, and the Bush administration has asked the Supreme Court to review the case.

In November, the EPA announced that it will halt in-progress investigations of 50 power plants and review investigations of 40 to 50 oil refineries charged with past violations of the Clean Air Act, in effect judging longtime violators under the new, looser rules rather than holding them responsible for breaking the law.

According to the New York Times, EPA lawyers “said the change grew out of a recommendation by Vice President Dick Cheney’s energy task force.” The Times also noted that the announcement came as Michael O. Leavitt, the former Republican governor of Utah, was preparing to replace Christie Whitman as EPA chief. Whitman had resisted some off Cheney’s task force proposals. She resigned last summer.

“This action means that states must again fill a void left by the failure of the Bush administration to enforce the law,” Spitzer commented in a press release.

“A federal-state partnership is the best way to enforce air quality laws. But if the federal government refuses to act to protect its citizens, the states must be provided with appropriate information so that they can step forward to do so.”

Whether the EPA passes the ball to the states or merely fumbles, Violette feels Spitzer will make a very strong case that the Bush administration has usurped Congressional authority by trying to use the EPA, an enforcement agency, to change the law—essentially usurping the powers of Congress.

“Only Congress has the authority and the ability to make such a sweeping change to the Clean Air Act,” Violette said in a recent WAMC-FM interview. But Congress would never have made such a rule change, Violette says, so “EPA...at the behest of the White House, is doing an end run around Congress....This is a violation of Congressional intent.”