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States take on feds over environment

Some 27 states are involved in a dozen initiatives or lawsuits.

By Staff writer of The Christian Science Monitor / October 6, 2005



Just days before leaving office, President Clinton put almost one-third of old-growth national forests off bounds to road construction. The Bush administration reversed that "roadless rule" last summer, citing a need for forest fire protection and states' rights.

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Then something unexpected happened: California, Oregon, and New Mexico rebelled. In August the trio - one quarter of the states most affected - sued the US Forest Service to prevent road building and logging in 90,000 square miles of virgin forest.

This mini-mutiny by itself might seem minor, but it's only one of the latest bubbles in a national groundswell of state-led lawsuits and environmental initiatives that some say represents what could be the start of a long-term shift in US environmental regulation and enforcement from the federal government to states.

Dozens of states, frustrated over federal actions or inaction on the environment, are trying to fill the gap with their own green initiatives - or are filing lawsuits to block federal changes they say would weaken existing environmental regulations. In the past two years some 27 states have participated in at least a dozen major environmental initiatives - often lawsuits - in opposition to federal environmental policies, a Monitor analysis shows.

Examples range from states ganging up to sue the nation's five largest power companies directly for their carbon emissions, to suing the Environmental Protection Agency (EPA) over regulatory changes concerning mercury emissions to developing a Kyoto-like global warming pact.

This raft of initiatives is aimed, in part, at dealing with what one law review journal described as a "treading water" approach to environmental enforcement at the EPA. It's also a reflection of discontent with Bush administration policies.

"There's a clear lack of leadership and effective environmental protection at the federal level, so many states - rather than just throw up their hands - have decided they have to take the initiative on a regional level or individual state level," says Judith Enck, policy adviser to Eliot Spitzer, the attorney general for the state of New York. He and other attorneys general this year spearheaded a nine-state pact to cap power plant emissions to help curb global warming.

Such unusual, historic moves are part of a growing effort by many states to part company with the White House and break new ground on a host of environmental matters. In the past two years, for instance:

• Fourteen states sued the EPA over power plant emissions' contributions to global warming. Many of the same states filed two other lawsuits over EPA rule changes governing mercury emissions. All cases are still pending.

• Six Great Lakes states filed legal briefs in opposition to federal policies governing ships' ballast water and invasive species in the lakes. EPA has said it is working with the Coast Guard to solve the problem.

• Seven states rallied to oppose the EPA's 2003 proposal to permit "sewage blending" that would have permitted states to increase sewage discharges into the nation's waterways. The EPA shelved the idea in May.

• At least 25 states have banned the sale or use of MTBE, the gasoline additive that pollutes ground water, well ahead of Congress and the EPA preventing further contamination, environmentalists say.

Such green initiatives have seen only a modest payoff so far. In Oregon, the roadless rule lawsuit is tied up in court, though it has stymied development so far. Last month a federal judge shot down a novel 2004 suit by eight states aimed at curbing carbon dioxide emissions of the five largest power companies. It remains to be seen whether state actions can add up in any meaningful way as a substitute for what has been a key federal responsibility and leadership role since the 1970s.

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