The federal Environmental Protection Agency, Massachusetts, and seven other states, together with 14 environmental groups, have just won an historic victory in federal court in Ohio. In 1999, under the Clinton administration, those plaintiffs, led by the Justice Department, sued one of the nation's largest power companies, American Electric Power of Columbus, for polluting the air hundreds of miles east of its plants.
Specifically, the plaintiffs claimed, pollution from AEP's coal-fired plants had corroded the Statue of Liberty and damaged forests in the Adirondack Mountains. The company, they said, had violated the New Source Review section of the Clean Air Act by "refurbishing and extending the life" of many of its coal-fired plants without installing state-of-the-art pollution controls.
On October 8, one day before the case would have gone to trial, the company agreed to a settlement. It will install $4.6 billion worth of pollution control equipment on 16 plants east of the Mississippi, to lower their sulfur emissions (a leading cause of acid rain) by 80 percent by 2019 and their nitrous oxide emissions by 70 percent by 2016.
And it must pay a $15 million civil penalty to the U.S. government and another $60 million for "harm mitigation" measures, $36 million of which will go for cleanup of the Chesapeake Bay while $24 million will be shared by Massachusetts, Vermont, New Hampshire, Rhode Island, Connecticut, New York, New Jersey and Maryland for air quality and energy efficiency programs.
What do the case and the settlement mean? Not that the acid rain that has poisoned New England's water for 100 years will be gone tomorrow, said Paul Godfrey, Director Emeritus of the Massachusetts Water Resources Research Center at UMass Amherst. But Godfrey described the settlement as "a very positive sign." The sulfate level in streams in this region has fallen by 28 percent since 1983, when the Center began monitoring those levels, and the drop is likely due to ongoing enforcement of the Clean Air Act, so "we should see a difference," he said, if pollution from the Midwest is substantially reduced.
And the Bush administration, which has always disliked the New Source Review program, inserted into the settlement a promise not to pursue civil actions against AEP for certain classes of infractions at the plants targeted in this suit for at least 10 years. That means that if AEP drags its feet on fulfilling the terms of the settlement, the northeastern states can't be sure of EPA support in enforcing those terms.
But the case and its denouement are good news for at least two reasons. The first, of course, is that they show that the New Source Review program has teeth, that the government won't temporize forever with the question of when the repair or expansion of old power plants requires effective cleanup technology; in a word, that the grandfathering of dirty power plants can't go on in perpetuity.
The second and more dramatic reason is the statement the case makes that large utilities, and by implication other corporations, can be compelled to stop externalizing their costs. (Externalizing means forcing the wider public to bear, financially or in damaged health or quality of life, costs related to the effects of a company's operations.)
To keep down the costs of power by causing the acidification of bodies of water, the aggravation of respiratory illnesses, and the deterioration of landmarks and infrastructure is to engage in a form of theft, though so far there has not been a robust body of court-enforced law (which is not the same as regulation) embodying that idea. The states and their allies in this suit succeeded in making the point that decent business practice includes paying the real costs of the operation that makes the profits.
The actual results of the AEP suit will be only as good as they prove themselves to be— though that may be very good indeed—and they may not be felt immediately. The precedent the suit sets is the real victory.
