By John Richardson, Staff Writer
Portland Press Herald news story
As a small, rural state tucked in the far corner of the country, Maine doesn’t seem like much of a match for the federal government.
But the state has taken the Bush administration to court six times in the past four years to demand tougher action to prevent various forms of air pollution from drifting across the country.
In the process, Maine has become a faithful member of a coalition of Northeastern states that is trying to shape federal environmental policy with legal arguments in addition to political ones.
“If the federal government doesn’t carry out its duties, then the states are not going to sit idly by and watch,” said Maine Attorney General Steven Rowe.
Last week, Maine was one of a dozen states that filed briefs in federal court in an ongoing lawsuit that demands tighter limits on mercury emissions from power plants.
Just before Christmas, the state joined others, including New York, California, Connecticut, Delaware, Illinois and New Hampshire, to sue for stricter limits on soot from smokestacks and tailpipes.
And a landmark case on carbon dioxide emissions from cars and trucks was argued before the U.S. Supreme Court in November.
John Millett, a spokesman for the U.S. Environmental Protection Agency, the defendant in the six pollution cases, said the agency is doing its job. He cited recent settlements that require power generators to install hundreds of millions of dollars worth of air pollution control equipment.
EPA rules rarely please everyone, Millett said. Whether it’s an industry, environmental groups or individual states, someone usually sues.
“It holds up progress, but it’s how the laws get tested and clarified,” Millett said.
Lawsuits of this type against the federal government were rare before the start of the Bush administration in 2001. Since then they “have definitely increased,” said John Pendergrass, senior attorney at the Environmental Law Institute, a nonprofit and nonpartisan legal research organization in Washington, D.C.
The flurry of pollution suits by Maine and other states is part of a larger trend toward more activist attorneys general. The Maine Attorney General’s Office, in fact, has joined in two other suits against the Department of Energy, demanding more aggressive energy efficiency standards for appliances and equipment.
Many link the trend to the successful lawsuit by states against the tobacco industry, and to the aggressive attorney general-turned-governor of New York, Eliot Spitzer, whose office has led many of the suits.
“He really has blazed a new trail for attorneys general,” said Jeffrey Holmstead, a former administrator in the EPA’s air quality office and now a partner in a Washington, D.C., law firm representing power companies and other industrial clients.
Holmstead said he believes politics plays a big part in the trend.
“The attorneys general believe that by being critical of the Bush administration, it’s good for them politically,” he said. “You have a group of politically ambitious people who have found a new way of finding visibility and political relevance.”>/p>
Like many of the attorneys general in the Northeast, Rowe is a Democrat. But some of the states that have joined the suits are led by Republicans who support the efforts.
“I don’t care what party the president’s from. These are motivated by a desire to protect the health of Maine people, period,” Rowe said in an interview last week.
It’s a simple issue of geography, not politics, Rowe said. Prevailing winds blow air pollution from much of the country across the Northeast and, ultimately, Maine.
“We’re at the end of the tailpipe,” he said.
As a result, Maine has high asthma rates and areas of severe mercury contamination in fish and loons, among other problems, he said.
Rowe also said Maine officials try to work with the EPA before they go to court. His office also consults with the state Department of Environmental Protection before joining the suits.
“We do not enjoy suing our federal government. We only do it as a last resort,” Rowe said. “The reason there are so many (suits) is because the federal government has consistently failed to enforce the Clean Air Act.”>/p>
Pendergrass, of the Environmental Law Institute, said the cases appear to be aimed at cleaner air more than political gain.
“The Northeast seems to feel the effects of some of these pollutants more,” he said. “I think it’s because this administration’s policies haven’t gone as far as the Northeastern states wanted and haven’t been as protective as they wanted.”>/p>
Rowe’s legal efforts, in fact, have the support of Maine’s top Republicans. Sens. Olympia Snowe and Susan Collins have pushed for tougher air pollution controls in Congress, and both provided written statements last week that take aim at the EPA, not Rowe.
“The fact that there has been such an overwhelming proliferation of environmental lawsuits in recent years — including six brought by the state of Maine — is a clear indication that our federal laws are not being enforced to the level that Congress intended,” Snowe said.
“While it is unfortunate that the states are sometimes forced to mount legal challenges to these regulations, court action can be necessary when the EPA, and other agencies for that matter, clearly fail to uphold the law,” Collins said.
There is a cost to taxpayers, however. State officials say it’s minimal because the states are using existing staff attorneys to write the arguments. But Holmstead says the suits are costly and pose a distraction to the EPA.
It’s too early to say whether the lawsuits will have the desired effect, Pendergrass said.
One case decided in Maine’s favor has effectively forced more power plants around the country to install equipment that limits smog and acid rain. Most of the cases are still pending, however.
Observers say there likely will be more lawsuits against the current administration. Rowe said he is hoping the EPA starts protecting public health without being sued.
Former Maine Attorney General James Tierney, who now teaches at Columbia Law School, isn’t optimistic.
He sued the EPA in 1984 about the Reagan administration’s acid-rain rule. It was an unusual stand at the time. The state lost the case, but helped bring reform in Congress, he said.
“This is a long-standing battle,” he said. “I don’t think anything should be resolved in litigation, but it’s kind of the only option you have.”>/p>
Rowe and the other attorneys general are just doing their job when they file these lawsuits, Tierney said.
“If they didn’t do it, people would wonder why,” he said.
The states argue the exemptions are loopholes that will worsen smog and acid rain in the Northeast. The court issues a mixed ruling in 2004, upholding some exemptions and striking down others.
