Cleaner Skies, But How?

Take a deep breath. The Environmental Protection Agency is about to issue a controversial rule for the nation's dirtiest power plants, forcing a new nose-wrinkling debate over how to further clean up America's skies.

A little background first:

Three times Congress has passed measures (1970, 1977, 1990) that impose ever-tougher air-quality standards on new fossil-fuel power plants, while allowing pre-1970 plants to slip through a smokestack-size loophole.

One reason for this new-old distinction is that lawmakers balk at forcing higher electricity prices on utility customers - especially fixed- income elderly - even if the benefits of cleaner air are obvious. Higher rates would be needed to pay for installing expensive scrubbers and other pollution-control technology at aging plants, especially dozens of coal-fired electric power plants in the Midwest.

Congress, however, left it up to the EPA to make a regulatory distinction in deciding if a plant has made "major modifications" that would trigger a retrofitting of plants with antipollution equipment, or if it had simply done "routine maintenance."

This ambiguity has given the power industry a perverse choice. It could either spend billions on new technology and raise electric rates, or find creative ways to extend the life of their power generators by "routine maintenance" without crossing the law's vague threshold.

The latter has prevailed. As a result, the older plants - nearly 80 percent of the coal-fired ones are almost 30 years old - remain the major source of the most harmful effluents.

This "grandfathering" approach has opened a floodgate of lawsuits. This month, a federal judge in Ohio ruled for the first time against a utility for not installing antipollution equipment after it upgraded a coal-fired plant. Such litigation has created confusion in the industry, and worked against the steady progress in cleaning up America's skies.

Since Congress has failed to clarify the law for the EPA, the agency has decided to issue a new rule that provides some certainty with a hard number. It's expected to rule that any plant upgrade whose costs exceed 20 percent of the cost of replacing all essential equipment would need to install pollution technology. In the regulatory world, a 20 percent threshold for enforcement is common, helping avoid a legal obligation to pay for "taking" of private property.

The effect of such a rule could be to end many of the lawsuits and give plant operators more clarity on when they will need to comply.

At the same time, the EPA and the Bush administration are asking Congress to pass a bill called "Clear Skies" that would lessen such an awkward regulation and create a market-based approach to meeting national air standards. Companies could earn credits for outperforming air standards, and then sell those credits to companies that are failing.

Such a system has already worked to cut pollutants that cause acid rain from power-plant emissions. The EPA claims this measure would cut emissions by 70 percent within 15 years, and not raise electric rates.

The bill, however, fails to deal with carbon dioxide emissions, which are linked to climate change, while doubts about the bill's mandatory targets on pollution caps have left it languishing in Congress. Many lawmakers prefer the current system of EPA regulation.

The burden of finding a better way to clean up the nation's dirtiest smokestacks falls back on Congress and its willingness to level with Americans on how much the nation can afford to pay for cleaner air. Let's not hinder the progress made so far.

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