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Albany, N.Y., Advocacy Group Blasts Federal Court’s Clean Air Ruling

July 15, 2008

By Tom Wanamaker, Watertown Daily Times, N.Y.

Jul. 13–ALBANY — Friday’s federal appeals court ruling that struck down the Clean Air Interstate Rule has been roundly criticized by the Adirondack Council.

“By striking down the Clean Air Interstate Rule, the court has left all of the Northeastern states vulnerable to acid rain and fine particles of smoke that damage people’s lungs,” said Scott Lorey, director of government relations for the Adirondack Council, a conservation advocacy group. “We need quick action from the U.S. Environmental Protection Agency to reissue the rule. Failing that, Congress must act right away to pass a bill that would require similar, or deeper, cuts in smokestack pollution.”

Created in March 2005, CAIR required steep and sustained cuts in nitrogen oxide, which causes smog, and sulfur dioxide, the main component of acid rain, by 2015. The rule applied to 28 states and the District of Columbia. Without it, environmental activists say health risks could grow for residents of the Northeastern U.S.

The three-judge panel of the U.S. Appeals Court for the District of Columbia said CAIR’s method of calculating emission caps is “fundamentally flawed,” and its trading provisions are “unlawful.”

Under CAIR, states could chose between two compliance options. One allowed states to meet their emissions budget by requiring power plants to participate in an interstate cap-and-trade program, administered by EPA, to cap emissions in two stages. The second permitted power plants to meet an individual state emissions budget through measures designed by the state.

The idea was to provide states with tools to address air pollutants from power plants with a cost-effective approach, while simultaneously protecting public health and the environment without impeding a steady flow of affordable energy.

In its decision, the court said EPA must “redo its analysis from the ground up” to determine, among other things, which states should be included under the rule and when — in 2015 or earlier — states must eliminate their downwind polluting emissions.

“EPA’s approach — region-wide caps with no state-specific quantitative contribution determinations or emissions requirements — is fundamentally flawed,” the judges wrote. “The trading program is unlawful, because it does not connect states’ emissions reductions to any measure of their own significant contributions.”

“The sulfur dioxide region-wide caps are entirely arbitrary, since EPA based them on irrelevant factors like the existence of the Title IV program,” the judges continued. “The allocation of state budgets from the nitrogen oxide caps is similarly arbitrary because EPA distributed allowances simply in the interest of fairness.”

The Adirondack Council said the Adirondack Park “has suffered worse damage from acid rain than any other region of the U.S.” as more than 700 of its lakes and ponds are too acidic to support aquatic life while thousands of acres of high-elevation forest has been wiped out.

The Catskill Mountains, Hudson Highlands, Long Island’s eastern Pine Barrens and the Finger Lakes also are suffering long-term damage from acid rain, the council said.

“This is a big health issue on the East Coast,” said John F. Sheehan, spokesman for the Adirondack Council. “It’s not just fish and birds we’re worried about. It’s everybody.”

“CAIR was the single most effective environmental rule issued by the Bush Administration,” Mr. Lorey agreed. “The Clean Air Act Amendments of 1990 weren’t enough to stop acid rain in the worst-hit places in the nation. We aren’t alone in our plight. The entire East Coast is suffering. It’s time for the ecological damage and unhealthy air days to stop.”

Mr. Sheehan found an interesting twist in the court’s decision.

“The irony here is that this is the president’s single most significant accomplishment, and it is thrown out by a conservative court,” he said.

The case is State of North Carolina v. Environmental Protection Agency, 05-1244. Arguments were heard by Chief Judge David B. Sentelle, and Circuit Judges Judith W. Rogers and Janice Rogers Brown.

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