Other cities and states have until December 26 to join the lawsuit to protect their air quality from further deterioration. Despite Charlotte's well-publicized air pollution problems, and the publicity given the lawsuit against the EPA, a survey of Charlotte City Council and the mayor shows only a couple of council members in favor of considering joining the lawsuit. A couple more council members are strongly opposed to suing the EPA, and others say they don't know enough about the issue to take a position.
In a stunning modification of the Clean Air Act, the Bush administration issued rules changes recently which will allow thousands of older power plants, oil refineries and industrial units to make extensive upgrades without having to install new anti-pollution devices. This requirement to install the anti-pollution devices was a critical part of the federal government's efforts to clean up the country's air quality. Bush's changes constitute a sweeping and cost-saving victory for industries, allowing them to continue to emit hundreds of thousands of tons of pollutants into the atmosphere, and save millions of dollars in pollution equipment costs, even if they increase the amounts of pollutants they emit.
What does this mean for Charlotte, a city that, according to the American Lung Association, is already eighth on the nation's dirty air list? While NC has some additional pollution controls to rely on in the form of the state's Clean Smokestacks Act, one of the biggest threats to our city's air quality is pollution that drifts in from our neighbors, specifically coal-fired plants in states to the south and west of us -- states without NC's more environmentally friendly legislation.
Air quality in North Carolina has gotten so bad, it has caused a steady increase in the number of asthma, emphysema and lung cancer cases. According to a recent study by the consulting firm Abt Associates, which conducts assessments for the EPA, North Carolina ranks sixth in per capita deaths from power plant pollution, with an estimated 1,800 North Carolinians dying each year from it.
The Bush administration's changes in the EPA rules -- in effect, giving the green light for more soot in the air -- will only make Charlotte's air quality worse than ever.
All of this has prompted some local politicians, environmentalists and air quality experts to suggest that NC and Charlotte should join in the lawsuit against the EPA to stop what many say is the biggest threat to our environment in 30 years.
During her campaign, newly elected City Council member Susan Burgess stressed the importance of cleaning up Charlotte's dirty air, and says she's eager to address the issue.
"[Bush's new rule] is especially damaging to Charlotte and the state of North Carolina," Burgess said. "In addition to the Charlotte urban region having the eighth dirtiest air in the nation, North Carolina last year had among the nation's highest levels of sulfur dioxide, a byproduct of burning coal. The health risks are now evident in the spike of asthma cases, especially in children and elderly, emphysema and lung cancer. The economic risk is very high as well. Air pollution threatens the trees in the North Carolina mountains, where tourism is the number one industry. Maybe the NC Attorney General should join in the lawsuit. After all, Republicans have lungs and grandchildren, too. Do they have an environmental conscience?"
City Councilman John Tabor disagrees. "My understanding is Duke Power is standing by their commitment to reduce the pollutants from their plants per the NC Clean Air Act," said Tabor, referring to the Clean Smokestacks Act. "If that is the case, I do not see a need to be involved in the suit. Duke should be commended for that position. It is also my understanding that with the [Clean Smokestacks Act], we have one of the most stringent policies in the country."
How Did It Get To This?
Power plant emissions aren't the only culprit contributing to our dirty air; automotive exhaust is also doing some pretty heinous things. While there is some debate as to which one poses the biggest threat, most seem to agree the primary culprits are coal-fired power plants. State analysts say power plants produce about 40 percent of the ozone-forming nitrogen oxides in Charlotte, and about 70 percent of the state's sulfur dioxide, a source of haze, fine particulate matter and acid rain.
In essence, Bush's new rule changes the Clean Air Act's definition of how to determine "routine maintenance" at a power plant and other industry. Plant owners are currently required to install pollution-control devices if they undertake anything more than "routine maintenance" on their plants (see sidebar for more details on EPA rules). Industries have long argued that this standard is too vague and hinders substantial investment in cleaner, more efficient equipment. Bush's new rule says that as much as 20 percent of the cost of replacing a plant's essential production equipment -- a boiler, generator or turbine -- could be spent and the owner would still be exempt from installing any pollution controls. A utility or factory could thus make tens of millions of dollars worth of improvements without being required to install pollution controls. Critics say this makes what was already a big loophole that much bigger, and makes significantly increased pollution very probable.
Eliot Spitzer, the attorney general of New York, which is one of the states involved in the EPA lawsuit, said the 20 percent rule "eviscerates the statute," and makes it patently clear that the "Bush administration has meant all along to repeal the Clean Air Act by administrative fiat."
John Walke of the Natural Resources Defense Council called the 20 percent standard "a grotesque accounting gimmick" that would "let companies completely overhaul their plants over time and spew even more pollution than now."
Locally, folks like Tom Mather, spokesperson for the NC Division of Air Quality (NCDAQ), which enforces state and federal air pollution regulations, have been just as critical. "As long as they keep their expenditures under 20 percent they don't have to ever upgrade, and that's a big concern for us," Mather says. "A part of the concern is that most air quality agencies are staffed by engineers and scientists, we're not accountants. This creates a real headache for the state programs because now they're being called on under these rules to basically become accountants. It also creates the potential for real abuses."
In response to the states' and cities' lawsuit, the EPA has responded that it does not believe this rule will result in significant changes in emissions and that it "preserves the public health protections" under law.
To Sue or Not To Sue
Why would Charlotte join the fight against the EPA rule changes? Namely because of our neighbors. While NC and Charlotte have their own share of air quality problems, tons of pollutants like sulfur, nitrogen and mercury enter North Carolina and Charlotte from surrounding states, none of which have additional air quality controls such as NC's Clean Smokestacks Act.
"North Carolina had a vision to control pollution within our borders and was able to pass the Clean Smokestacks Act," says Mark Edsell from NCPIRG, a consumer rights and environmental advocacy group. "Unfortunately, not every other state has done the same. Bush's set of rule changes will allow power plants throughout the rest of the country to increase their pollution. Meaning, best case scenario, we enforce the Clean Smokestacks Act locally, but pollution from out of state is increased and floats across our borders. We see some of the most polluting power plants in the country are throughout the Southeast."
And the Southeast has plenty of them. North Carolina has 14 coal-fired power plants. According to BREDL, in 2002 these plants released a total of 142,773 tons of Nitrous Oxide (NOx), 459,645 tons of Sulfur Dioxide (SO2) and 71,128,033 tons of Carbon Dioxide (CO2). States west and south of NC, which impact our air quality, all have comparable levels of emissions, including Tennessee's eight coal-fired plants, SC's 12 plants and Georgia's 10 plants. Needless to say, all of these power plants -- a total of 53 within the boundaries of Virginia, the Carolinas, Tennessee and Georgia -- make the Southeast one of the dirtiest and unhealthiest areas of the country.
While there are no specific numbers detailing the amount of pollution that enters NC from other states, most air quality experts and environmentalists say it's obvious that even with the Clean Smokestacks Act, outside pollution is a serious problem.
"Not to say that we don't have our very own air quality issues, but we're certainly getting pollution from across borders," says Edsell. "And with these rollbacks we also know the power plants in Tennessee and other states will increase their pollution, so the problem is only going to get worse."
"There is certainly potential for negative impact from surrounding states," says Sheila Holman, a spokesperson from the NC Division of Air Quality. "Obviously NC's mountain sites are more influenced by pollution from Tennessee and Virginia, whereas the Charlotte area is influenced by SC and Georgia, depending on the weather and wind direction. Certainly our own pollution influences the air quality in NC, but that's not to say that we don't need help in reducing emissions from outside sources."
Aside from John Tabor and Susan Burgess, two other City Councilmembers had definite responses to the possibility of joining the EPA lawsuit.
"There is a need for caution," said Nancy Carter. "We need to look at things like the expense, what liability is involved, would enforcement of such standards be suspended while dealing with litigation, and is this the best way to attack diminution of our environmental standards. But it (the lawsuit) does seem like a viable option which I would consider."
Newly elected councilmember John Lassiter said the biggest problem is that other states aren't as aggressive as NC in controlling pollution. "Pollution drifting into our state from coal-fired power plants and manufacturing plants has always been a problem," said Lassiter. "The states in the Northeast have a higher number of coal-fired plants than what we have in the South."
Of Bush's rule changes to the Clean Air Act, Lassiter said, "There are lots of regulatory arrangements set up that way -- where you can have a certain amount of improvement and maintenance before it triggers what you might have to do if you build a new facility from the ground up. I think that's fair to businesses. You've got to comply with existing law but if, in fact, you decide to build a new plant or substantially renovate a plant to the point that it's operating as if it's new, you ought to comply with whatever the new rules are. I don't really see it (EPA rule changes) as a giant loophole. I think problems exist by other states failing to enforce aggressive anti-pollution rules like in NC."
Councilmembers Patrick Cannon and Pat Mumford said they didn't know enough about the lawsuit or the changes to the Clean Air Act to take a position one way or the other. Outgoing Councilmember Joe White said that, although he is committed to working for a cleaner environment, he doesn't know enough about this issue to comment. Mayor McCrory, whose influence with this City Council is minimal in any case, never bothered to respond at all, after numerous phone calls and emails. It's very possible that since he is employed by Duke Power, McCrory would need to recuse himself from a debate on this issue if one came up.
Calls for Investigation
The latest rub in this issue is that the EPA has announced it will likely drop investigations into 50 power plants for past violations of the Clean Air Act. During the Clinton administration, the Justice Department initiated lawsuits and ordered investigations against dozens of oil refineries and about 50 coal-fired power plants, including eight owned by Duke Power, for their failures to install pollution controls under the requirement of routine maintenance. But now, lawyers for the EPA have stated that while they intend to pursue cases already filed against various plants, other pending cases will likely be judged under the new, less stringent rules that include exemptions and would make it almost impossible to sustain the investigations. Agency lawyers and environmental groups say that the new standard would shield almost all of the plants under investigation, and would undermine investigations that had already found serious violations at the 50 plants.
Now, in response to these latest developments, several senators and attorneys general from the Northeast -- including Eliot Spitzer of New York and Richard Blumenthal of Connecticut -- have called for an investigation into the EPA's decision. Spitzer had also demanded that the agency turn over all of its files on the investigations so he and officials in other states can proceed with the cases.
This development is just the latest in a series of moves by the Bush administration that has congressional critics and environmental groups saying President Bush is a puppet of the utility and oil industries, among others, all of which were among his biggest campaign donors.
Edsell stated that virtually every environmental group that has worked on clean air issues in the state is taking a stand against Bush's new rules, and that they are urging state officials to join in the lawsuit. "We are reaching out to folks in the NC delegation in DC as well as the NC State House." Edsell added that they're also reaching out to minority groups, whose neighborhoods have a disproportionately high number of pollution sources, as well as fishermen, whose livelihoods are threatened by elevated levels of mercury, and the elderly, who suffer the most from respiratory problems related to air pollution.
"Since Bush took office, we've really been taken aback by the persistence and rate at which he continues with these environmental rollbacks," said Edsell. "It's known that Bush and his administration are from the energy industry, so the fact that his policies are bad is not surprising. What is surprising is just how dastardly, persistent, vicious and unwavering they are about marching forward."
As of press time, NC's Governor's Office and Attorney General's Office were still deliberating on whether to join the lawsuit against the EPA.
Contact Sam Boykin at sam.boykin@cln.com or 704-944-3623.
