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The Pollution Buster
Elizabeth Kolbert talks to Eliot Spitzer, New York State's crusading attorney general

Photo of Eliot Spitzer

Since becoming New York State's attorney general in 1999, Eliot Spitzer has been a leader in efforts to preserve and enforce the nation's environmental laws. He has initiated a number of landmark lawsuits -- against midwestern power plants for failing to install pollution controls, against the Environmental Protection Agency (EPA) for ignoring congressional mandates to strengthen pesticide regulations, and against the Bush administration for trying to weaken the Clean Air Act. Recently, New York, together with California, New Jersey, five other states, and New York City, sued five of the nation's largest greenhouse gas emitters, charging them with violating public-nuisance laws.

As attorney general of New York you've made environmental enforcement one of your priorities. You've prosecuted polluters in New York, but also, more strikingly, you've gone after out-of-state polluters. What's the logic behind that?
Well, the logic is that environmental issues do not recognize the boundaries of states or even nations. Global warming is by its nature global. Even water pollution issues tend to encompass multiple states because of the way pollutants flow. The acid rain issues that are central to much of the litigation we have done manifest themselves here in New York as particular problems, whether it's asthma or degradation of our forests. But the roots of the problems often lie in emissions in other states. So in order to confront the environmental issues that exist here in New York we must often look at sources elsewhere.

One of your biggest victories was the case against the big midwestern utility Ohio-Edison. You sued the company for violating the provision of the Clean Air Act known as New Source Review.
What happened was that Ohio-Edison took a number of massive utility facilities and expanded them, increasing both their output and their life span. That triggered a statutory obligation to install various environmental controls to limit emissions of sulfur dioxide and nitrous oxide -- "sox and nox." The company claimed that its upgrades were simply the kind of routine maintenance that was permitted under the statute. But we argued, successfully, that the upgrades amounted to fundamental capital improvements and therefore obligated Ohio-Edison to strengthen its environmental controls.

Most of those capital improvements took place back in the 1980s. So for years nobody was bothering to enforce the law?
The Clean Air Act did not receive the vigorous enforcement it should have over the past 15 or 20 years. Unfortunately there has been a regulatory void in Washington. I've had a growing sense of regulatory "capture" -- by which I mean that the agencies that are supposed to be enforcing the law have begun to think almost like the industries they're supposed to be monitoring. Consequently, they've failed to either enforce the law or observe changes that required attention.

Is that just a function of people working together over time, a kind of "Stockholm syndrome"?
Well, I'm not a sociologist, but I think it might be. Part of it is that if you live in a city where you're regularly going to the cocktail parties and dinner parties and having lunch with a lobbyist for the other side, it may just become more difficult at a social level to look them in the eye and say, no, you're wrong, your client is committing fraud and we're going to sue you. It also may be a consequence of the fact that many of these individuals cycle through the revolving door and end up representing the entities they would otherwise be regulating. It's too closed a world, and it takes an outsider to parachute in and say, wait a minute -- you guys are missing the obvious.

Now the Bush administration has been trying to change the Clean Air Act in ways that would make cases like yours that much more difficult to pursue. How do you explain that?
The rules the Bush administration proposed would, in my mind, have eviscerated the act, because they would have redefined that critical phrase "routine maintenance" in such a way that any capital improvement would have been covered. Fortunately, New York and a number of other states went to court and got a preliminary injunction. There will be a final determination later this year. How to explain it? Well, I'm not going to say there is anything improper, but there is, at a minimum, an ideological divide between those of us who think the statute should be interpreted aggressively and those, such as Vice President Cheney, who oversaw the energy policy that led to these proposed regulations, who clearly want to change the core principles underlying the act.

What signal does this send to industry?
Industry leaders are rational: They respond to the market incentives they are given. If they believe that by violating the Clean Air Act and then pushing back against enforcement actions they will be rewarded by statutory changes that condone their illegal behavior, then we will get what we deserve -- which is dirty air, asthma, and a loss of our forests. So the proper way to handle these cases is to say, you broke the law, you will be sanctioned.

Have the administration's proposals had an impact on industry leaders' behavior?
Oh, absolutely. We've been able to track the willingness of companies to negotiate with us based upon their assessment of the likelihood that the Bush administration changes in the statute will become law. I will admit that if I were the lawyer for those companies I would react that way as well. I'd have a very hard time saying to clients that they should enter a settlement that will require them to spend a significant amount of money upgrading their capital infrastructure if we're on the cusp of seeing a regulatory change that will eliminate the need to do so.

In your suits against the administration, you've been joined by several other states. It's hard not to notice that your allies tend to be so-called blue states.
Not entirely. When we filed a Clean Air Act lawsuit against utilities in the Midwest in September 1999, Christie Todd Whitman was the Republican governor of New Jersey. She stood shoulder to shoulder with us on these actions. And that is hugely important, because I love to be able to say, not rhetorically but as a matter of principle, this is not a partisan issue.

But isn't it true that environmental legislation and enforcement have become increasingly partisan?
Yes, unfortunately that's true, because it creates gridlock where we ought to be able to forge consensus. Sometimes the partisanship is also regional. For example, we've been able to forge an alliance of virtually all the East Coast states against midwestern utilities, and that generates a predictable response on their part: You're just trying to shift the burden to us to clean up your own air. To which my response is: If we were pointing a finger at others while we ignored problems internally, they would have a legitimate argument. But Governor Pataki has been quite good; he has promulgated regulations relating to utilities within New York State and we've brought enforcement actions against offenders. I think we need to rise above the issue of the impact upon each of us as an individual and recognize that environmental safeguards will exact certain incremental costs from each of us, but that what we are creating as a consequence is an overarching good from which we all benefit.

That brings us to the question of why the marketplace is not equipped to deal with some of these dispersed or hidden costs.
The problem is that you're trying to motivate people on the basis of what economists would call an externality, where the cost burden is not reflected in day-to-day economic transactions. When local consumers buy energy from Ohio-Edison, they pay a lower price because the cost of pollution has been shifted to those of us here in New York. So they're happy. But we then have to step in and say, wait, stop.

Is there any way to do that besides the regulatory structure?
No. You can impose a tax on the purchaser that reflects the cost to society, but some external party has to impose it. Actually, we shouldn't always think of these as taxes. There are also products such as clean energy that we want to subsidize because there's a public good there. But it still takes some party external to the transaction to do that.

Let's go back to the lawsuits for a moment. Even if you win, doesn't that mean the best we can hope for is enforcement of the laws that are currently on the books? In other words, aren't environmentalists just fighting a rearguard action?
Unfortunately that may be true. In the long run, I don't think litigation of this sort will withstand long-term political pressure to roll back environmental safeguards. Unless we begin to win the more overt political battles to regain decision-making power in the White House or in Congress, we may gain a few years, but we will not ultimately succeed. As proud as I am of some of the successes that we and other litigants have had in the past couple of years, it really is at best a holding pattern.

So has the environmental movement stalled?
Momentarily. But in the long term I'm optimistic, because the polling data suggest that concern for the environment cuts across traditional political schisms. If we can somehow capture that, there may be a consensus out there that can be forged down the road.

Given what's going on in Washington, should groups like NRDC be focusing more attention on Hartford and Albany?
Well, I think there's greater vitality and creativity at the state level right now. What we're seeing in California, and to a certain extent in New York, is much more exciting than what we're seeing out of Washington. Without officials in the White House or in control of Congress who are more sympathetic to environmental issues, then yes, I would say focus on a few critical states that can almost define the marketplace by their own rule making. If you get New York and California mandating certain energy efficiency standards, whether it's air conditioners or automobiles, industry has to meet those standards because our market share is sufficient. I think that is a viable second-best alternative. But it is second best.

-- Elizabeth Kolbert

How about a little vacation before the weather gets too cold? Perhaps a trip to some idyllic spot miles from the nearest city, somewhere you can stand on a mountaintop, breathe in the pure air, and savor the changing fall colors in the river valleys below. Somewhere like Colorado's Mesa Verde National Park.

Lovely idea, except that Mesa Verde has the third-highest level of airborne mercury among the 65 sites in the United States and eastern Canada that are monitored by the federal Mercury Deposition Network (MDN). The main culprits are two nearby power plants, the Four Corners plant in Coconino County, Arizona, and the San Juan Generating Station in New Mexico. These coal-fired plants, which are exempt from federal regulations on mercury pollution, also account for most of the haze that impairs Mesa Verde's once-famous views.

Like any statistics, the MDN's figures need to be treated with a certain amount of caution: They don't claim to show the total amount of airborne mercury, but only its level of concentration in "wet deposition" -- in other words, snow, rain, fog, and dew. Since Mesa Verde is in such an arid part of the country, with only about 18 inches of annual precipitation, that means the true picture may be even worse than the MDN statistics suggest.

"We really have no idea what's happening between rain events, and that concerns me," says George San Miguel, Mesa Verde's manager of natural resources. What we do know is that mercury is heavy, and that much of it therefore doesn't travel very far from the point of emission. Just far enough, perhaps, to fall, silent and invisible, smack in the middle of your autumn vacation.

Photo: David Barry

OnEarth. Fall 2004
Copyright 2004 by the Natural Resources Defense Council