New York Suit Provides Test Case on Auto Emissions

ONE of New York State's key strategies for reducing air pollution - stricter emissions standards for cars - is mired in a legal battle that could force this and several other states to take more-radical steps to improve air quality than they had planned.

The next crucial date in the drama is March 26, when the court decides if it will grant the defendants' petition for re-argument.

States are struggling to comply with the tough Clean Air Act amendments of 1990 that call for everything from more-efficient cars to tighter industry controls.

So far, few states have kept pace with the timetable. The Environmental Protection Agency (EPA) notified 35 states, including New York, in January that they had failed to submit all preliminary action plans by a due date last fall. States have until July 1994 to submit acceptable plans or face stiff mandatory sanctions, including a federal-highway-fund cutoff.

Car emissions contribute heavily to smog in the Northeast. In the New York metropolitan area, cars and light trucks produce up to 90 percent of carbon monoxide and 55 percent of ozone. Last year, New York officials decided to adopt tough new emissions standards for cars sold after 1995. New York became the first state to choose the California model rather than less-strict federal standards. Massachusetts, Maine, and New Jersey followed.

In a test case, the Motor Vehicle Manufacturers Association challenged New York's authority to adopt tougher standards without also embracing California's stricter gas standards. The association argued that New York, in effect, was requiring production of a third car. A federal district court judge in the state agreed that the net effect places an "undue burden" on carmakers.

The defendants, including New York State and the Environmental Defense Fund (EDF), insist that no separate car is required. They say the ruling is based on factual errors and requested re-argument. If denied, New York will appeal the ruling.

"If it were upheld, [the judge] will have removed from us the most cost-effective strategy that we have available," says Thomas Jorling, commissioner of New York's Department of Environmental Conservation. "The other [pollution] sources are now minor contributors and would be extremely expensive to control beyond levels already imposed." Officials rebut estimate

State officials say the cost to manufacturers of New York's adoption of California standards will not be close to the $1,000-per-car industry estimate. Though New York has not closed the door on adoption of the fuel standards, state officials say no such move is required under the Clean Air law and would not now be cost-effective. James Tripp, EDF general counsel, says if carmakers can show that the fuel to be used in New York in 1995 in accord with new federal standards would cause problems for new car emissions systems, the EPA should be petitioned to change the requirement.

Gov. Mario Cuomo (D) is sponsoring a companion package of air-quality improvements in his budget. The mix includes everything from requiring large employers to reduce the number of worker car trips to a new car emission-inspection program. Permit fees, sticker fees, and fines would help finance the moves.

Yet, just as New York's car emissions plan has been put on hold in the courts, the governor's package has been largely stalled in Albany. State officials have had neither the authority nor the money to move ahead. Some legislators say they doubt EPA sanctions would ever be imposed.

"Unless the legislature ... [acts] in this session, I think there's no way New York State is ever going to meet the July 1994 deadline," comments Larry Shapiro, a lawyer at the New York Public Interest Group. States could feel pressure

If the case ends in the manufacturers' favor, New York and other Northeastern states would be pressured to take more-radical steps to comply with the law.

"We could be looking at economic changes for businesses that beggar anything anybody has yet thought of," says Richard Brodsky, chairman of the New York Assembly's Environmental Conservation Committee. He says so many pollution sources are regulated that public behavior is one of few options still left. "You may have to keep cars out of the New York City area. You may be looking at privately financed, publicly required mass transit."

Yet, if New York should win, many states likely will follow in adopting California standards.

"I think this litigation may prove to be the air bag [issue] of the '90s," says Richard Kassell, an attorney at the Natural Resources Defense Council. "This is a program that has to go through because it has so many benefits for millions of people."