States take on feds over environment

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

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.

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.

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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