Throughout the summer smog season, people along the Eastern seaboard can see brown clouds hovering over their cities, seacoasts and national parks. The sight is particularly alarming to thousands of asthma suffers whose problems often worsen when they breathe that acrid air.
Now the Environmental Protection Agency, which has been fighting smog aggressively for decades, is taking its battle for cleaner Eastern air to the Midwest, including metro Detroit. In December the EPA ordered hundreds of power plants and other industrial sites throughout the Midwest, including a number in Wayne County, to cut overall emissions of smog-generating nitrous oxide (Nox) in half.
The EPA based its rulemaking on Eastern states’ formal complaints that a lot of Midwestern Nox drifts into their region, hampering their efforts to reduce smog along the populous seaboard.
Many Midwestern companies named, including several in Wayne County, plan to fight the EPA in court. So does the Michigan Department of Environmental Quality (DEQ). Not surprisingly, the state’s resistance angers some environmentalists.
"By fighting rules like this," says Isaac Elnecave, a policy analyst for the Michigan Environmental Council, "Michigan hurts itself and the health of its own citizens, particularly in the western part of the state, where smog blows in from Wisconsin and Illinois. The state is fighting the same kind of regional efforts that would actually help it solve this same kind of problem in Michigan. It seems more interested in lawsuits against the EPA than it is in participating in meaningful solutions to the interstate smog problem."
Fueling dissent
The coming court battle is actually Round 2 in a fight between the EPA and a number of Midwestern and Southern industrial companies and state governments. Round 1 began in 1998, and went to the Midwestern and Southern plaintiffs last May when a federal appeals court panel struck down proposed Nox rules.
A New York Times editorial called that decision "bizarre and tortured," while an EPA official characterized it as "very weird."
Even though the Justice Department is appealing the May decision to the U.S. Supreme Court, the EPA decided not to wait for that decision, which could be more than a year away.
"We’re going to get there, one way or another," Carol Browner, EPA director, said as she announced the new December rules. "We are going to get people clean air."
These latest rules reflect a new EPA strategy, one that uses a section of the Clean Air Act of 1990 allowing states to petition the agency to control Nox emissions that drift in from other states. The EPA, approving formal complaints from four of eight Northeastern states, ordered 392 facilities – including seven in Wayne County – to collectively cut Nox emissions in half over three years. This would accomplish about half of the smog reductions the agency lost on in May.
Environmentalists on the East Coast cheered. The EPA’s preliminary figures indicate that last year’s air pollution levels in that part of the country were among the worst in a decade. A lawyer for the nonprofit Clean Air Task Force says that, in the summer, air drifting into that region is often already three-quarters of the way to violating established federal standards. But Browner’s "Plan B" will probably have to wait months or years for implementation.
Both DEQ and Detroit Edison officials say they plan on using the same arguments against the December rules that won over the appeals court last May.
"The science doesn’t support the position they are taking," according to Skiles Boyd, Edison’s director of environmental management and resources. He says the EPA’s concerns about increasing asthma rates are misplaced.
Pointing to the reductions in air pollutants that the EPA itself says have occurred over the years, Skiles argues that "logically, if those emissions were what was causing all of these cases of asthma, those asthma rates would go down also. But with emissions going down and asthma still going up, something doesn’t jibe here."
Boyd says that, if a direct cause-and-effect can be shown between more smog and more asthma making more Nox controls necessary, "then that is where things should go." But he argues that "EPA did not use the proper process to do that.
Until a valid standard is set, he says, Edison will fight because everything from common sense to computer modeling by the Southeastern Michigan Council of Governments (SEMCOG) and Edison’s industry group indicates that Edison’s Nox contribution to the Northeast’s smog problem is insignificant. Both he and the state DEQ argue that it’s much more efficient and effective to force Northeast plants to further reduce emissions first.
That’s happening, according to EPA spokesman Dave Ryan, who says that "the Northeast has done a better job at reducing Nox than the Midwest. ... We did not let them off the hook; a lot of Northeastern states have been hit with Nox reductions."
He says that much of the resistance to further Nox reductions comes from power companies in the Midwest. He insists the EPA "is not out to screw the Midwest."
Robert Percival, director of the environmental law program at the University of Maryland, says the EPA has always tried to stay out of this kind of regional fight. But "now their hand has been forced by the May court decision," he says. As to the charge that the EPA is picking on the Midwest, he says, "I just don’t see it. Our (Eastern states) standards are stricter than yours, and the location of the largest, oldest sources of these emissions tend to be concentrated in the Midwest."
Percival also says soaring asthma rates in the face of slowly improving air quality do not let smog producers off the hook. Smog does not cause asthma, he says, but it definitely aggravates it, sometimes severely. Since the country’s asthmatic population has doubled to 15 million in the past decade, he says further reducing smog remains necessary and cost-effective, even if the disease’s basic causes are eventually proven to be outside of the agency’s regulatory realm.
Beyond respiratory problems, science says that smog contributes to acid rain, visibility problems and the premature aging of inland lakes. It also affects agriculture, reducing yields for wheat, cotton, soybeans and other major crops.
Edison’s Boyd points to improvements his company has made in the past quarter century – sulfur dioxide and Nox emissions are down by about half and particulate emissions by more than 90 percent, even as Edison has produced more electricity each year. Both he and DEQ spokesperson Ken Silfven argue that the law of diminishing returns is setting in.
"We agree that, to the extent we are culpable, we should do something about it," Silfven says of the Michigan smog blowing into the Northeast. "but it
doesn’t warrant an 85 percent reduction" in some of the plants the EPA cited.
He says that, based on its own computer modeling, the state is putting together a proposal that would cut Nox by 65 percent and "would more than address our culpability." But that depends, of course, on who is using which computer model.
"Our modeling was done by a group representing the 37 easternmost states, and they did the most extensive computer modeling anyone has done on this," the EPA’s Ryan says. "Our proposal was based almost exactly on their recommendations, and Michigan was in that group."
Ryan rejects DEQ Director Russell Harding’s allegation that the EPA’s real agenda is politics, not health. Harding has said that the EPA’s dogged attempts to reduce Nox, which will incur sizable compliance costs for Midwestern utilities with older and therefore dirtier plants, are attempts to "level the economic playing field." He thinks the EPA is trying to help Eastern utilities compete nationally as their state governments allow them to sell more power outside of their home markets. But even DEQ spokesperson Silfven had to admit that is "pure speculation."
"I don’t know what is in other people’s minds whenever they take positions on things," says Edison’s Boyd of Harding’s contention. "I do know there are issues regarding competition ... and the possibility of more movement of electricity from region to region. I always hope that, on environmental issues, people are thinking environmental."
Ryan and Percival say that this was exactly what the appeals court was not doing in May, and that science had little to do with the decision made by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.
"Normally, people challenge us on the science, which I’m sure is what the plaintiffs did. But this decision wasn’t based on science," Davis says. "The court ruled on constitutionality, on the authority of Congress to delegate certain powers. It overthrew a tradition that goes all the way back to the New Deal. We are confident we will prevail on this one."
Percival says that the common opinion around Washington is that the nation’s high court, even with its current conservative slant, will eventually rule for the EPA. At the very least, he says, the Supreme Court will send the May ruling back to the Court of Appeals to "come up with some new scientific rational instead of just saying the statute is unconstitutional."
But if the Supreme Court upholds the May ruling, the EPA will be caught badly out of position. Its new December rules could be endangered as well because they will eventually be reviewed by the same appeals court.
Meanwhile, as utility deregulation continues across the country, power companies are concentrating less on reducing demand and more on emerging national markets – how to sell them more power produced as cheaply as possible. That has a particularly ominous ring to the MEC’s Elnecave.
"Coal produces 80 percent of our energy in Michigan, and it’s the dirtiest form of production," he says. "By doing so while blocking efforts at further cleanup, Edison and the state are in effect blocking the building of newer, cleaner plants here. As long as they do that, older and dirtier coal-burning plants will continue to hold an economic advantage."
With older plants spewing Nox into the east-bound winds at two to seven times the rate of the newest plants, and with recent EPA rules in a sort of legal limbo, future summers both in the Midwest and along the Eastern seaboard could be truly breathtaking.
Here is how Wayne County facilities affected by the EPA’s new rules on interstate smog say they are responding:
The City of Detroit owns the Mistersky electrical generation plant; its four units can generate 185 megawatts and power the public school system, police and fire departments, Wayne State University, Cobo Hall, Joe Louis Arena and street and traffic lights. Department Director Mark Petty says that, thanks to the recent conversion of several units from coal or oil to gas, the plant is in compliance with the new EPA rules. Petty believes it is "physically impossible" for Midwestern Nox to be affecting the East Coast.
Detroit Edison owns and operates three Wayne County power plants affected by the EPA’s new rule: Trenton Channel, River Rouge and Hancock. Skiles Boyd, Edison’s director of environmental management and resources, says that, as it did with the attempted EPA ozone rule change last year, Edison will join other utilities and the Michigan DEQ in a court challenge. Boyd says that Edison believes the newly mandated level "is not necessary to address health and welfare issues and so there will be no real benefit to the Northeast states."
Ford Motor Company owns the Rouge Complex Powerhouse No. 1, which has been closed since an explosion that killed six workers there in February 1999. A Dearborn company is building a replacement facility across the street, so EPA’s rulemaking will not affect Ford. The company says the EPA data that put No. 1 on the emissions reductions list may be inaccurate. If the Michigan DEQ contests the new rule, Ford will probably support the action.
Marathon Oil, owned by USX Corporation, operates a small refinery in southeastern Detroit that processes 74,000 barrels of crude oil daily. The company follows the lead of its industry trade group, the American Petroleum Institute. The API did not respond to repeated phone calls.
National Steel Company, a subsidiary of the NKK Corporation, manufactures electricity for its blast furnace on Zug Island. According to company spokesperson John Jakcsy, National "does not have any plan to legally challenge this (new EPA rule). We already have some tentative capital plans that would take care of the problem. This is not major for the company dollar-wise, so we intend to comply with the law."
Rouge Steel representatives did not respond to repeated phone calls.
Wyandotte Municipal Services Commission operates that city’s mostly coal-powered electric company; Tom Wilson, the commission’s director, says that recent modifications have put two of its three generator boilers "in or nearly in compliance" with the new EPA rules. If those rules stand, the commission must install additional controls costing more than $100,000. Wilson calls the contention that Wyandotte’s power plant is harming the East Coast "a dubious one."
