States take on feds over environment

But one thing's clear. The growing number of such actions represent a sharp departure from past decades when EPA was clearly in the lead and states followed, experts say. "EPA used to be leading the pack, but now the states that were the most industry friendly are lining up with EPA - and other states are pushing the envelope and taking the lead on enforcement," says Eric Schaeffer, director of the Environmental Integrity Project and former head of EPA's office of regulatory enforcement until 2002.

EPA officials deny any drop in enforcement or leadership. "We're committed to enforcement and doing what achieves the best results for the environment," said EPA press secretary Eryn Witcher in a statement responding to Monitor queries. "We are focused on practical achievable results that don't get mixed in years of litigation. No one's air gets any cleaner when you're sitting in a court room."

She cites a 19 percent increase in compliance inspections and 25 percent increase in civil investigations since 2001 as examples of progress. Lawsuits over regulatory changes on mercury and other power plant emissions are not unusual, she says.

At the same time, though, some states are charging ahead of the federal government on clean energy and energy efficiency initiatives that help the environment by lowering carbon emissions, activists say.

To reduce coal consumption and help curb global warming, at least 12 states have adopted "renewable portfolio standards" that require utilities to offer customers power generated by wind, biomass, and other green sources, something Congress failed to include in recent energy legislation.

There's a growing breadth to such actions. While litigation often has involved a core group of New England states, New York, and California, others not often associated with green causes are joining the ranks. Besides New Mexico on the forest issue, Texas, Arizona, and Nevada are pushing renewable portfolio standards. Florida is among just three states pouring millions into hydrogen-powered cars. Colorado, Kansas, and Kentucky are among those that have banned MTBE. And North Carolina in 2002 adopted its own "clean smokestacks" law to scrub power plant emissions.

In early September, 15 states and New York City sued the US Department of Energy for falling six to10 years behind on a raft of energy efficiency upgrades required by Congress for 22 appliances.

The state of New York is party to 16 multipartner lawsuits with other states against federal agencies on environment issues that involve pesticides.

But even as states gather momentum at the national policy level, their capacity to defend the environment at home sometimes fares poorly.

State efforts simply can't compensate for the steady drop in EPA enforcement efforts, even administration critics admit. So the gap between states with strong and weak environmental enforcement is getting wider, Mr. Schaeffer says. He notes, for instance, that while the nine-state initiative to limit carbon dioxide emissions is a great step forward, no states currently building coal-fired power plants have signed onto the pact.

"All this state activity is great," he says. "The caveat is that it can't make up for what we're missing from the federal government."

Then add money woes. At least one-third of the $15 billion states spend annually comes from the federal government, and that amount is dropping. States lost nearly $200 million in federal funding - about $4 million per state in the new federal budget, according to the Environmental Council of the States in Washington.

Ms. Witcher denies that EPA is shirking enforcement or failing to fund compliance, noting that 730,000 individuals and business got compliance assistance from the EPA last year. "Our strategy is working," she says.

But that's little solace to some state officials. "We certainly are using the courts to try to get the federal government to do their job," Ms. Enck says. "It's astonishing how many cases are against federal agencies, not polluters directly. If the feds aren't doing their job, there's not much chance of getting compliance from polluters."

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