EPA Ordered to Protect Ecosystems From Air Pollution

By J.R. Pegg

WASHINGTON, DC, April 29, 2004 (ENS) - A federal appeals court has ordered the U.S. Environmental Protection Agency (EPA) to correct flaws in federal air regulations in order to protect air quality in national parks and wilderness areas across the country. Environmentalists hope the court ordered agreement, approved Monday, will bring to a close a 14 year effort to force the federal agency to comply with a key part of the Clean Air Act.

The agreement resolves a legal action initiated by the advocacy group Environmental Defense last July, but centers on a case that stretches back to 1990.

The organization's previous lawsuit challenged significant deficiencies in the EPA's Prevention of Significant Deterioration (PSD) program, which protects from additional pollution areas where air already meets federal standards.

The PSD program, which is part of the Clean Air Act, restricts allowable pollution increases in these regions, and enforces pollution standards through a review and permit system for all pollution sources of a certain size.

Environmental Defense challenged the PSD limits for nitrogen oxides (NOx), and a 1990 federal court ruling agreed that the EPA had failed to comply with the law, and instructed the agency to reconsider and revise its rules.

But the EPA failed to reconsider and revise its rules, and last July Environmental Defense returned to court to force the agency to comply.

Under terms of the agreement reached Monday, the EPA must issue a proposed rule by September 30, 2004 and a final rule by September 30, 2005. shenandoahhazy

NOx contributes to haze, which affects many parks. On a hazy summer day, visibility from Shenandoah's overlooks can shrink to less than a mile. (Photo courtesy U.S. Environmental Protection Agency (EPA))
"This settlement clears the way for effective measures to protect vital ecosystems from harmful air pollution," said Earthjustice attorney Jennifer Kefer, who represented Environmental Defense in the lawsuit and settlement negotiations. "The Clean Air Act has long called for the protection of the nation's most revered natural areas and now it is time to make this a reality."

NOx is the generic term for a group of highly reactive gases, all of which contain nitrogen and oxygen in varying amounts. The primary sources of NOx are motor vehicles, electric utilities, and other industrial, commercial, and residential sources that burn fuels.

NOx is a key ingredient in smog, acid rain and particulate matter, contributing to a host of adverse environmental impacts including excess nitrogen deposition and acidification in forests and streams, oxygen depletion in coastal water bodies, and haze that obscures scenic vistas.

In January, the National Academy of Sciences issued a report finding that the protection of ecosystems from airborne contaminants "has not received appropriate attention" and calling for enhanced safeguards.

Environmental Defense senior attorney Vicki Patton said that study showed, "EPA is missing the mark in protecting the nation's ecosystems from air pollution."

"This legal settlement requires EPA to take decisive action to strengthen the safeguards for our forests, lakes, streams and soils that are hard hit by air pollution," Patton said.

The settlement could have an even broader impact than a recently announced EPA rule to reduce haze in national parks. That rule, also the product of a successful legal challenge, applies only to 156 parks and wilderness areas, but the regulations called for by this settlement would apply to any area that satisfies the PSD program.

The D.C. Circuit Court of Appeals, which ordered and approved the settlement, says it will closely monitor EPA's compliance. The settlement orders the EPA to file status reports and brief Environmental Defense on its progress every 90 days.

"The teeth of the court are behind the agreement," Kefer told ENS.

That is good news, added Patton, in light of the EPA's failure to comply as well as a recent agreement between EPA and the state of North Dakota that many believe undermines the PSD program.

In February EPA Administrator Michael Leavitt agreed to ease PSD sulfur dioxide regulations for the state of North Dakota, in a move designed to resolve a dispute that first arose in 1999 over the air quality at Theodore National Park and the nearby Lostwood National Wildlife Refuge.

The EPA told the state in 1999 that its existing coal fired plants were already negatively impacting the park. EPA scientists estimated existing power plants in the state would have to cut air pollution by some 60 percent in order to preserve air quality at the Theodore Roosevelt National Park.

But the state is keen to build more power plants, and North Dakota regulators claimed the method for estimating air pollution at national parks required by the EPA is flawed and incorrectly pushed the areas out of compliance with the law. trpark

Theodore Roosevelt National Park preserves colorful North Dakota badlands. (Photo courtesy National Park Service )
The agreement allows North Dakota to use modeling techniques that will show the areas that do not violate air quality, but there is ample evidence EPA's scientists are worried about the decision.

Last summer the EPA again said the park was in violation of federal air quality standards and in October a top federal air official argued that North Dakota's measurements were "fundamentally flawed."

"It defies science to understand why you can have a huge increase in emissions and not have a significant deterioration in air quality," Richard Long, director of EPA's regional air and radiation division in Denver, told Associated Press in October 2003.

The Dakota Resource Council filed a petition Monday in federal court challenging the Memorandum of Understanding signed by Leavitt and the state of North Dakota.

In an internal agency memo included in the Dakota Resource Council legal filing, EPA scientists raise concerns that North Dakota's proposal would inflate baseline emissions levels and provide inaccurate predictions of overall air pollution.

"While there is certainly room for improvement in the air program, fundamental changes in the way air quality are assessed require broad discussion, and in some cases in guidance and regulations," according to an April 21 internal email from the EPA's regional air quality monitors. "Therefore, the draft protocol should be rejected insofar as it deviates from these principles."

The EPA did not return a request for comment.

Patton called the uniform objections of EPA career scientists "remarkable" and added that "EPA's failure to protect parks in North Dakota calls into question the agency's resolve to protect the nation's vital ecosystems."