Share this article

print logo


If threatened lawsuits against out-of-state polluters that ruin New York's environment actually get to court, they could clear up any ambiguity in the federal Clean Air Act and potentially eliminate one shield polluters hide behind.

On the other hand, if the suits by Attorney General Eliot Spitzer don't make it to court because Midwestern and Southern power plants that send dirty air our way agree to clean up their acts, New Yorkers still win.

In either case, Spitzer's first-in-the-nation effort to go directly after dirty power plants themselves -- instead of after states or federal regulators for not being tougher -- is a welcome effort to make these coal-powered facilities take responsibility for the pollutants they belch out.

Those pollutants from the 17 targeted plants in Ohio, Indiana, Virginia, West Virginia and Kentucky get picked up on air streams that carry them to New York State. Here, they kill lakes and rivers by turning them acidic, ruin forests in the Adirondacks and the Catskills and cause respiratory problems for state residents.

At issue is whether the plants have failed to install anti-pollution equipment to meet current standards when making major upgrades, as required by the federal Clean Air Act, or whether the money poured into these older facilities was merely for routine "maintenance."

After sending probers to pore over data filed with regulators in the various states, Spitzer is confident he can show that the dirty plants have gone far beyond mere maintenance, making improvements that either extended their lives or expanded their capacity.

Either course would constitute an "upgrade" that should have been accompanied by modern anti-pollution equipment to meet the same clean-air standards as new plants, Spitzer says.

Owners of the old plants -- which were "grandfathered" on the theory that they would eventually shut down, not make upgrades -- dispute that, contending that only maintenance has been done.

That point should be easy enough to resolve in court -- should the cases ever get that far.

New York would seek billions in monetary damages for the health and environmental consequences of the pollution, in addition to demanding remedial repairs Spitzer estimates could cost $10 million to $30 million per plant. That potential for damages is a big stick to get the plants to agree to a settlement.

Spitzer also will invite other Northeast states to join New York's suit. That would give the power plants even more dollar signs to think about as they compute the potential damages of a courtroom defeat.

However, cleaning up the dirty air that flows this way is more important than the money, Spitzer says.

For the polluters, though, you can bet it's all about the money. That's why the threat of a lawsuit just might get their attention, after nothing else has.

There are no comments - be the first to comment