Clean-air cops handcuffed

In the heat of this year's election campaign, Environmental Protection Agency chief Michael Leavitt was quick to share good news on the environment: "Today's air is the cleanest most Americans have ever breathed," he announced in September. "Now EPA is taking up the challenge to accelerate the pace of that progress into the future."

But whether it can accelerate progress may depend on resolving a fundamental question, observers say. Can a proposed market-based system for controlling air pollution make up for less rigid enforcement of current laws? Once a potent tiger, the EPA's clean-air enforcement looks increasingly toothless. The number of suits targeting big polluters - especially coal-fired power plants - has dropped dramatically. Former EPA officials complain such lawsuits are actively discouraged. At least one recent settlement allows a violating power plant to spew more pollution into the air, not less.

"There's clearly been a significant decrease in air-pollution enforcement by the EPA, especially regarding the electric utility industry," says Joel Mintz, a law professor at Nova Southeastern University Law Center who has studied the EPA's legal legacy.

The numbers tell the story. In its last three years, the Clinton administration filed 61 civil suits against alleged violators of clean-air laws. In its first three years, the Bush administration filed nine. Enforcement of the Clean Air Act, especially toward coal-fired plants, is "at a near standstill," concluded the Environmental Integrity Project, a watchdog group in Washington, which tallied the lawsuits in a report last month. Even though old lawsuits are being pursued, new lawsuits are not being filed, says Eric Schaeffer, director of the group.

That's why the Bush administration's market-based approach - in which the government sets overall pollution caps and companies decide how best to meet them - represents a significant departure from the past. Historically, lawsuits have been as important as new laws in cleaning up America's air. Since the Clean Air Act took effect in 1970, industrial emissions of six key pollutants - including sulfur dioxide (SO2), nitrogen oxide (NOx), carbon monoxide, and lead - have been cut in half: from 301 million tons to 147 million tons last year, EPA's Mr. Leavitt reported.

But complaints about the lack of enforcement are not only coming from environmentalists. A week after Leavitt touted cleaner air, the EPA's own inspector general released a report charging that changes last year to key air-pollution rules had "seriously hampered EPA settlement activities, existing enforcement cases," and the development of future cases.

In a forceful rebuttal, the EPA said the inspector general's report "misleads the public about Agency actions to reduce pollution from coal-fired power plants. We vigorously enforce the Clean Air Act and have an aggressive plan" to cut emissions.

Others disagree. A sea change in the agency began a year ago, culminating with the Bush administration ordering a halt to EPA lawsuits and investigations involving clean-air violations, critics say. "We were told to stop investigating," says Bruce Buckheit, former director of EPA's air-enforcement division, who says he resigned last year when it became clear there would be no aggressive enforcement. "My boss informed me. But the decision was made over his head.... It would have had to have been cleared by White House."

The EPA investigation started after Mr. Buckheit read a 1996 newspaper article about soaring coal sales. Coal-fired power plants represent the largest single source of regulated pollutants in the United States. At the time, Americans were consuming record amounts of coal, yet the EPA had received few applications from power-plant operators for permits to modify their plants to burn more coal. So where were those millions of tons of coal going? Buckheit wondered.

Before long, he and others at EPA had uncovered what he calls "massive violations involving about 70 percent" of the coal-power industry. In 1999 and 2000, the EPA initiated nine lawsuits against some of the largest power companies. As recently as last year, the EPA had about 75 active investigations of potential industry violations and another 22 legal cases at the Justice Department, but not yet filed in court. Companies alleged to be in violation were lining up to try to settle and clean up without going to court. Then the ax fell.

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