June 27, 2005
Law & order | Attorney General Steven Rowe says the Environmental Protection Agency isn't enforcing the Clean Air Act — and he's got the lawsuits to prove it
By Taylor Smith
Take on the federal government? That's a tall order, even if you're the top litigator for the state. But G. Steven Rowe, Maine's attorney general since 2001, has worked with his staff of 107 attorneys to file a number of lawsuits against federal agencies. So in addition to investigations of complaints ranging from Canadian lottery scams to racially motivated attacks in Maine, the AG's office recently has levied serious charges against the U.S. Environmental Protection Agency.
The attorney general's ongoing gripe with the EPA stems in large part from the agency's 2002 decision to soften the New Source Review provision of the Clean Air Act ˆ a provision Rowe's office calls a "critical component" of the federal anti-pollution act that requires industrial facilities such as coal-fired power plants and oil refineries to update their pollution-control systems. According to a 2002 press release from Rowe's office, the EPA's changes widened a loophole that exempted up to 50% of those facilities from making the changes necessary for compliance.
So Rowe in November 2002 joined with attorneys general from eight northeastern and mid-Atlantic states to file suit against the Bush administration in hopes of reversing the relaxation of the NSR provision. Eleven months later, Rowe was at it again, this time leading a dozen states from Maine to New Mexico in another lawsuit targeting the administration's further NSR changes. Since then, Rowe's office has joined states and environmental groups in lodging three other lawsuits ˆ most recently in March ˆ targeting what the plaintiffs say are the Bush administration's lax policies on mercury and carbon monoxide pollution.
All five cases still are bogged down in the court system by what Assistant Attorney General Jerry Reid calls "procedural" activities. Lawyers in Rowe's office, however, are awaiting the decision on the first NSR case, which Reid says is coming "very soon." Mainebiz caught up with Rowe to discuss what's driven Maine's lawsuits against the EPA, whether such suits are in the state's best interest and how Maine's business community could benefit from a favorable ruling. The following is an edited transcript of that conversation.
Mainebiz: It's no small task bringing a lawsuit against the federal government. How do you decide what battles to fight when it comes suing the current administration?
Rowe: We don't file frivolous lawsuits. We only file suit after exhausting all other avenues. In the case of the New Source Review rules, not only did we write letters to the EPA administrator and the president, but I went down and visited [the agency] personally, accompanied by seven other AGs, and met with then-Administrator [Christine Todd] Whitman. Filing a lawsuit is our last recourse. We encourage the EPA to enforce the federal law, but when it refuses to do so, we have no other recourse. We believe we have an obligation: The federal EPA is the agency that is tasked by law to enforce the federal Clean Air Act. So we seek the court's assistance to make sure the EPA does its job.
Why do you think this is so critical for Maine?
One of the reasons this is so important is that the state of Maine is at the end of what we call the nation's tailpipe. A lot of these coal-fired plants [are] in the Midwest and the South, and the prevailing winds blow from west to east and [pollution] is dumped on the state of Maine. It's estimated that up to 80% of the pollutants ˆ and more than that on certain days ˆ that fall out of the sky here in Maine are from away. We can't build walls up around our state, so we have to petition our federal government to do its job to enforce the Clean Air Act. And that's the very act that our Sens. [Edmund] Muskie and [George] Mitchell worked so hard on over the years.
The big issue is the health of our people; I don't think that we often think about that. We have the highest asthma rate among both youth and adults in the country ˆ Maine is number one, unfortunately. And we have a high percentage of individuals with respiratory diseases. We know that dirty air is bad for the health. It also affects fish, it affects wildlife. I'm not sure there's any positive thing you can say about air pollution. We're not trying to enforce stricter laws in the state ˆ we're trying to make sure the federal government is enforcing the federal Clean Air Act. The reason it's a federal law is because winds travel across state lines. We can't stop pollution from moving through the air.
How does being at the end of the "nation's tailpipe" affect businesses in Maine?
Under the Clean Air Act, you have a budget of how much pollution you can have in your air. Depending on how much you have in your air, local industry may be able to pollute more or less, or be required to install more expensive or less expensive control technology. That's a way that Maine industry is directly affected by out of state pollution flowing in. To the extent that we already have air pollution problems, any other emissions of gasses into the air here in Maine contribute. In other words, when you look at the capacity issue of emissions, there's less room for industry in the state if our air is already polluted.
I mentioned the adverse health risks associated with air pollutants, particularly with uncontrolled CO2 emissions. We know it contributes to increased asthma and other chronic respiratory disorders, but also insect-borne diseases like Lyme disease and West Nile virus. We know it will be a growing problem if those emissions continue.
In terms of the adverse effects to our economy, we know that uncontrolled CO2 emissions will also affect our forests and our coastal waters. We'll see a change in species mix, and there will be an altering in the delicate balance we have here in the state in terms of those ecosystems. We will see beaches and coastal lands eroding, and we have seen ˆ and I know we'll see more of ˆ the choking algae blooms on our inland lakes and ponds. Our economy relies to a great extent on the forestry and the fisheries industries as well as tourism, and continued uncontrolled emissions of pollutants such as CO2 will negatively affect all of these.
It seems that many people think pollution is a local problem, and that a coal-fired plant in Missouri wouldn't have much bearing on Maine's pollution. How aware is the public about this problem?
I think that they're aware of it. I read a lot about it in the newspapers. When we file lawsuits, we try to put out information that explains why we're doing this to let [the public] know that about 70% of the sulfur-dioxide emissions in this country are from the oil- and coal-fired electric generating power plants, and they're not in Maine. And 30% of nitrogen-oxide emissions are from away. I think generally people understand that when it comes to air pollution, a lot of our state's pollutants are airborne and come into the state from away. We probably could and should do a better job educating the public about that.
One of the concerns we have is that some of the individuals who are in the federal government right now don't fully appreciate or understand the issues with air transport of pollutants. So in terms of the issue about educating people, I certainly wish that more of the individuals that worked in the EPA and in our federal government understood this problem ˆ particularly when the technology exists to reduce emissions. I think a lot of these decisions are short-sighted. We're allowing industry to continue to emit pollutants when the technology exists.
And the other thing is, quite honestly ˆ and we've heard this from Maine businesses ˆ if you allow some businesses to pollute and others are law abiding, where's the incentive to be law abiding? That's something that we've heard from other states, that the EPA in our mind is basically creating an exemption from complying with the federal Clean Air Act ˆ and the New Source Review is a great example. A lot of industries have already spent a lot of money making technological investments to reduce pollution at their facilities, and now you're allowing others off the hook. It's just a disincentive and it's bad public policy; it's certainly bad for the health and the economy of this country.
Why do you think the EPA is dropping the ball when it comes to curbing pollution?
I think it has to do with this administration. I think to a large extent this administration has placed corporations' profits over the health of the American people. And certainly the EPA is part of the administration. So I think it's perhaps a mindset. I know there have been resignations at some of the high levels in the EPA of some individuals who've said they cannot work under these conditions. And we've read their resignation letters, so what I'm saying is, I know some people at the EPA have felt that that agency is tasked to enforce the law, not look for ways to allow industry to get around the law.
In your experience, were things different during the previous administration?
Yes. I'm not saying it was perfect; we had some problems with some of the things that happened in President Clinton's administration, too. But was it better? Yes.
There's been a lot of ink spilled lately on the Bush administration's stance on global warming, but your office has been on the global warming beat, so to speak, since 2003. What's happened since then, and was anyone listening in 2003?
We've had to keep beating the drum. Back in 2002, there was a document called the U.S. Climate Action Plan, and the EPA actually had a role in preparing that. That was a comprehensive report that spoke about global warming. The report found that greenhouse gasses are the leading cause of global warming, and that CO2 ˆ carbon dioxide ˆ is one of the primary causes of greenhouse gas emissions. And we know that CO2 is primarily produced by combustion of fossil fuels. And so that was [from] our government, and the EPA participated.
But the actions of the EPA have been in contradiction. The EPA in 1998, 1999 and 2000 issued testimony of statement that they could regulate CO2. This office, along with Massachusetts and Connecticut, in June of 2003 sued the federal government over global warming. We said that the EPA was required under the federal Clean Air Act to list CO2 as a criteria pollutant under the act. And we thought [the EPA would] add that because they said that's what they recognized it as being. But, as soon as we filed the suit, the EPA ruled that it had no legal authority under the Clean Air Act to regulate CO2.
So, what we did then was file another suit in, I think, October of 2003, [with] the three states I mentioned, plus I think there were nine other states that joined together along with some large cities, against the EPA for their failure to regulate greenhouse gas emissions because they failed to list CO2 as a pollutant under the federal Clean Air Act. So the EPA recently has refused to deal with this issue of global warming, refused to recognize it while it is well accepted within our scientific community that it does exist, and that greenhouse gasses are the leading cause of global warming.
How do you decide when to let the public know what's happening with a case?
A lot of times, what's going on is just procedural activities. What happens is, you file a complaint against the federal government, one of the agencies being the EPA. Because we're appealing a federal agency action, it's filed in the U.S. Circuit Court of Appeals for the D.C. circuit. And then of course there's [additional filings], and then there are motions filed, then there are hearings; so a lot of that is just procedural activities. When and if we get a decision, we'll certainly announce that. So will the New York Times and the Wall Street Journal, probably, because it will be a big decision.
My hope is that we'll be successful in forcing the EPA to enforce the Clean Air Act, but we do try to let the public know of major events of these cases. But every time we file a motion or attend a hearing, we don't ˆ we believe it has to be something that's noteworthy. We could send out press releases once a week on these cases. You should also know that the attorneys that work on these cases work on many, many other cases, and we do not have a large staff. We have to be mindful of our resources and use them in the most effective way possible.
Does favorable backing in the court of public opinion have any bearing on the case?
Yeah, I believe we have strong public backing. When we announce that we're filing a case or we get a favorable decision, we hear from the public strong support for the actions we have taken or we are taking. But we don't just do this because we think it's popular. In fact, we do it because we feel we have an obligation to do it, to protect the health and safety of Maine people and to require our federal government to enforce federal laws. This issue of sovereignty ˆ you have the federal government and you have state government, and you have federal laws and state laws. We can't enforce federal laws; that's the EPA, unless they delegate authority to us. Our only recourse is to go to the courts to force the federal government to do its job. That's what we do here.
With such a small office ˆ 107 lawyers compared to nearly 600 in New York state ˆ is it difficult to marshal the resources for lawsuits of this size and scope?
Often there's just one lawyer in the office ˆ sometimes two ˆ that's working on a particular case. In these cases, [Assistant AG] Jerry Reid's done most of the work. Jerry works with his counterparts in the other offices that are involved. Usually two or three states that are lead states, and we've always been a lead state in these clean air cases. We're trying to get EPA to enforce federal law. So even though there's state-specific consequences to their non-enforcement, the arguments we're making [are made] collectively as a group of states.
The attorney general's ongoing gripe with the EPA stems in large part from the agency's 2002 decision to soften the New Source Review provision of the Clean Air Act ˆ a provision Rowe's office calls a "critical component" of the federal anti-pollution act that requires industrial facilities such as coal-fired power plants and oil refineries to update their pollution-control systems. According to a 2002 press release from Rowe's office, the EPA's changes widened a loophole that exempted up to 50% of those facilities from making the changes necessary for compliance.
So Rowe in November 2002 joined with attorneys general from eight northeastern and mid-Atlantic states to file suit against the Bush administration in hopes of reversing the relaxation of the NSR provision. Eleven months later, Rowe was at it again, this time leading a dozen states from Maine to New Mexico in another lawsuit targeting the administration's further NSR changes. Since then, Rowe's office has joined states and environmental groups in lodging three other lawsuits ˆ most recently in March ˆ targeting what the plaintiffs say are the Bush administration's lax policies on mercury and carbon monoxide pollution.
All five cases still are bogged down in the court system by what Assistant Attorney General Jerry Reid calls "procedural" activities. Lawyers in Rowe's office, however, are awaiting the decision on the first NSR case, which Reid says is coming "very soon." Mainebiz caught up with Rowe to discuss what's driven Maine's lawsuits against the EPA, whether such suits are in the state's best interest and how Maine's business community could benefit from a favorable ruling. The following is an edited transcript of that conversation.
Mainebiz: It's no small task bringing a lawsuit against the federal government. How do you decide what battles to fight when it comes suing the current administration?
Rowe: We don't file frivolous lawsuits. We only file suit after exhausting all other avenues. In the case of the New Source Review rules, not only did we write letters to the EPA administrator and the president, but I went down and visited [the agency] personally, accompanied by seven other AGs, and met with then-Administrator [Christine Todd] Whitman. Filing a lawsuit is our last recourse. We encourage the EPA to enforce the federal law, but when it refuses to do so, we have no other recourse. We believe we have an obligation: The federal EPA is the agency that is tasked by law to enforce the federal Clean Air Act. So we seek the court's assistance to make sure the EPA does its job.
Why do you think this is so critical for Maine?
One of the reasons this is so important is that the state of Maine is at the end of what we call the nation's tailpipe. A lot of these coal-fired plants [are] in the Midwest and the South, and the prevailing winds blow from west to east and [pollution] is dumped on the state of Maine. It's estimated that up to 80% of the pollutants ˆ and more than that on certain days ˆ that fall out of the sky here in Maine are from away. We can't build walls up around our state, so we have to petition our federal government to do its job to enforce the Clean Air Act. And that's the very act that our Sens. [Edmund] Muskie and [George] Mitchell worked so hard on over the years.
The big issue is the health of our people; I don't think that we often think about that. We have the highest asthma rate among both youth and adults in the country ˆ Maine is number one, unfortunately. And we have a high percentage of individuals with respiratory diseases. We know that dirty air is bad for the health. It also affects fish, it affects wildlife. I'm not sure there's any positive thing you can say about air pollution. We're not trying to enforce stricter laws in the state ˆ we're trying to make sure the federal government is enforcing the federal Clean Air Act. The reason it's a federal law is because winds travel across state lines. We can't stop pollution from moving through the air.
How does being at the end of the "nation's tailpipe" affect businesses in Maine?
Under the Clean Air Act, you have a budget of how much pollution you can have in your air. Depending on how much you have in your air, local industry may be able to pollute more or less, or be required to install more expensive or less expensive control technology. That's a way that Maine industry is directly affected by out of state pollution flowing in. To the extent that we already have air pollution problems, any other emissions of gasses into the air here in Maine contribute. In other words, when you look at the capacity issue of emissions, there's less room for industry in the state if our air is already polluted.
I mentioned the adverse health risks associated with air pollutants, particularly with uncontrolled CO2 emissions. We know it contributes to increased asthma and other chronic respiratory disorders, but also insect-borne diseases like Lyme disease and West Nile virus. We know it will be a growing problem if those emissions continue.
In terms of the adverse effects to our economy, we know that uncontrolled CO2 emissions will also affect our forests and our coastal waters. We'll see a change in species mix, and there will be an altering in the delicate balance we have here in the state in terms of those ecosystems. We will see beaches and coastal lands eroding, and we have seen ˆ and I know we'll see more of ˆ the choking algae blooms on our inland lakes and ponds. Our economy relies to a great extent on the forestry and the fisheries industries as well as tourism, and continued uncontrolled emissions of pollutants such as CO2 will negatively affect all of these.
It seems that many people think pollution is a local problem, and that a coal-fired plant in Missouri wouldn't have much bearing on Maine's pollution. How aware is the public about this problem?
I think that they're aware of it. I read a lot about it in the newspapers. When we file lawsuits, we try to put out information that explains why we're doing this to let [the public] know that about 70% of the sulfur-dioxide emissions in this country are from the oil- and coal-fired electric generating power plants, and they're not in Maine. And 30% of nitrogen-oxide emissions are from away. I think generally people understand that when it comes to air pollution, a lot of our state's pollutants are airborne and come into the state from away. We probably could and should do a better job educating the public about that.
One of the concerns we have is that some of the individuals who are in the federal government right now don't fully appreciate or understand the issues with air transport of pollutants. So in terms of the issue about educating people, I certainly wish that more of the individuals that worked in the EPA and in our federal government understood this problem ˆ particularly when the technology exists to reduce emissions. I think a lot of these decisions are short-sighted. We're allowing industry to continue to emit pollutants when the technology exists.
And the other thing is, quite honestly ˆ and we've heard this from Maine businesses ˆ if you allow some businesses to pollute and others are law abiding, where's the incentive to be law abiding? That's something that we've heard from other states, that the EPA in our mind is basically creating an exemption from complying with the federal Clean Air Act ˆ and the New Source Review is a great example. A lot of industries have already spent a lot of money making technological investments to reduce pollution at their facilities, and now you're allowing others off the hook. It's just a disincentive and it's bad public policy; it's certainly bad for the health and the economy of this country.
Why do you think the EPA is dropping the ball when it comes to curbing pollution?
I think it has to do with this administration. I think to a large extent this administration has placed corporations' profits over the health of the American people. And certainly the EPA is part of the administration. So I think it's perhaps a mindset. I know there have been resignations at some of the high levels in the EPA of some individuals who've said they cannot work under these conditions. And we've read their resignation letters, so what I'm saying is, I know some people at the EPA have felt that that agency is tasked to enforce the law, not look for ways to allow industry to get around the law.
In your experience, were things different during the previous administration?
Yes. I'm not saying it was perfect; we had some problems with some of the things that happened in President Clinton's administration, too. But was it better? Yes.
There's been a lot of ink spilled lately on the Bush administration's stance on global warming, but your office has been on the global warming beat, so to speak, since 2003. What's happened since then, and was anyone listening in 2003?
We've had to keep beating the drum. Back in 2002, there was a document called the U.S. Climate Action Plan, and the EPA actually had a role in preparing that. That was a comprehensive report that spoke about global warming. The report found that greenhouse gasses are the leading cause of global warming, and that CO2 ˆ carbon dioxide ˆ is one of the primary causes of greenhouse gas emissions. And we know that CO2 is primarily produced by combustion of fossil fuels. And so that was [from] our government, and the EPA participated.
But the actions of the EPA have been in contradiction. The EPA in 1998, 1999 and 2000 issued testimony of statement that they could regulate CO2. This office, along with Massachusetts and Connecticut, in June of 2003 sued the federal government over global warming. We said that the EPA was required under the federal Clean Air Act to list CO2 as a criteria pollutant under the act. And we thought [the EPA would] add that because they said that's what they recognized it as being. But, as soon as we filed the suit, the EPA ruled that it had no legal authority under the Clean Air Act to regulate CO2.
So, what we did then was file another suit in, I think, October of 2003, [with] the three states I mentioned, plus I think there were nine other states that joined together along with some large cities, against the EPA for their failure to regulate greenhouse gas emissions because they failed to list CO2 as a pollutant under the federal Clean Air Act. So the EPA recently has refused to deal with this issue of global warming, refused to recognize it while it is well accepted within our scientific community that it does exist, and that greenhouse gasses are the leading cause of global warming.
How do you decide when to let the public know what's happening with a case?
A lot of times, what's going on is just procedural activities. What happens is, you file a complaint against the federal government, one of the agencies being the EPA. Because we're appealing a federal agency action, it's filed in the U.S. Circuit Court of Appeals for the D.C. circuit. And then of course there's [additional filings], and then there are motions filed, then there are hearings; so a lot of that is just procedural activities. When and if we get a decision, we'll certainly announce that. So will the New York Times and the Wall Street Journal, probably, because it will be a big decision.
My hope is that we'll be successful in forcing the EPA to enforce the Clean Air Act, but we do try to let the public know of major events of these cases. But every time we file a motion or attend a hearing, we don't ˆ we believe it has to be something that's noteworthy. We could send out press releases once a week on these cases. You should also know that the attorneys that work on these cases work on many, many other cases, and we do not have a large staff. We have to be mindful of our resources and use them in the most effective way possible.
Does favorable backing in the court of public opinion have any bearing on the case?
Yeah, I believe we have strong public backing. When we announce that we're filing a case or we get a favorable decision, we hear from the public strong support for the actions we have taken or we are taking. But we don't just do this because we think it's popular. In fact, we do it because we feel we have an obligation to do it, to protect the health and safety of Maine people and to require our federal government to enforce federal laws. This issue of sovereignty ˆ you have the federal government and you have state government, and you have federal laws and state laws. We can't enforce federal laws; that's the EPA, unless they delegate authority to us. Our only recourse is to go to the courts to force the federal government to do its job. That's what we do here.
With such a small office ˆ 107 lawyers compared to nearly 600 in New York state ˆ is it difficult to marshal the resources for lawsuits of this size and scope?
Often there's just one lawyer in the office ˆ sometimes two ˆ that's working on a particular case. In these cases, [Assistant AG] Jerry Reid's done most of the work. Jerry works with his counterparts in the other offices that are involved. Usually two or three states that are lead states, and we've always been a lead state in these clean air cases. We're trying to get EPA to enforce federal law. So even though there's state-specific consequences to their non-enforcement, the arguments we're making [are made] collectively as a group of states.
Most Recent
Most Recent
Comments