Posted on 01/15/2002 2:33:49 AM PST by Cincinatus' Wife
Four environmental organizations and a group of local business leaders asked a federal appeals court Monday to review an ambitious, but they say ultimately flawed, state plan to force Houston to comply with national air quality standards.
The five petitions filed with the 5th U.S. Circuit Court of Appeals in New Orleans each cite different flaws in the plan as reasons the court should review and set aside the Environmental Protection Agency's decision to approve the plan Oct. 15.
The petitions were brought by the Sierra Club, Environmental Defense, the National Resources Defense Council, the Galveston-Houston Association for Smog Prevention (GHASP) together with the Galveston Bay Conservation and Preservation Association, and the Business Coalition for Clean Air Appeal Group, a 12-member spinoff of the Greater Houston Partnership.
Years in the making, the plan is designed to bring the Houston/Galveston region -- with one of the worst smog problems in the nation -- into compliance with national ozone standards by 2007 as required by the federal Clean Air Act.
Ozone, the principal ingredient of smog, is formed when volatile organic compounds mix with nitrogen oxides in the presence of sunlight and is associated with a number of adverse health conditions, including chest pains, coughing and nausea. It also aggravates conditions such as bronchitis and asthma and can reduce lung capacity.
The petitions argue, among other issues, that the clean air plan submitted to the EPA in December 2000 falls 56 tons per day short of needed nitrogen oxide reductions. The EPA acknowledges the shortfall, but approved the plan saying that "enforceable commitments," voluntary efforts and other incentive programs will make up the deficit.
In their filings, environmentalists argue that a consent decree between the EPA and the National Resources Defense Council in a previous lawsuit ordered the EPA to approve a plan that shows exactly how the region intends to meet the national standards. The plan the agency approved in October does not do this, they say.
"It is unlawful for the (EPA) to approve the State Implementation Plan (SIP) for the Houston-Galveston ... area because the control measures ... are short by 56 tons per day of reductions of nitrogen oxide emissions," lawyers wrote in the petition filed by GHASP, the Galveston Bay Conservation and Preservation Association and Jane W. Elioseff, a Houston resident who says ozone causes her health problems.
The petition also argues it was unlawful for the EPA to accept enforceable commitments "in lieu of actual emissions reductions" and that it was unlawful for the EPA to accept a plan that did not account for the future growth of emissions expected from entities like the Port of Houston.
"We want public health protected, not just promises," said John D. Wilson, executive director of GHASP.
For residents in Houston and eight surrounding counties, the most visible sign that something is being done about the region's dirty air will be the gradual introduction during the next few months of a 55-mph speed limit on freeways. The plan also will require a controversial new vehicle inspection and maintenance program scheduled to begin May 1 that will cost motorists $35 -- $12.50 for the inspection and $22.50 for the emissions test.
Industry will be required to cut emissions of nitrogen oxides by up to 90 percent.
Other provisions include rules requiring the use of cleaner diesel fuel vehicles; a ban on the commercial use of gasoline-powered lawn equipment between 6 a.m. and noon from April 1 to Oct. 31 starting in 2005; and a ban on excessive engine idling by large commercial trucks.
Environmentalists say they are increasingly concerned about provisions in the plan that rely on "voluntary" measures, such as car pooling and e-commuting, which are difficult, if not impossible, to enforce. Such provisions are supposed to reduce nitrogen oxide emissions by 23 tons per day.
"The Clean Air Act requires that a state air pollution plan must account for the reductions," said David McIntosh, an attorney for the National Resources Defense Council. "What the state of Texas has done is account for 23 tons of reductions that are voluntary and unenforceable."
David Marrack, a Houston physician who joined Environmental Defense in petitioning the court, said he wants the EPA approval set aside because the state plan will not, as written, clean the air by the deadline of 2007.
"As a physician, I believe I have a personal responsibility to help create a healthy environment for the people of Houston," Marrack said. "We will not get there by 2007. We've left it too late."
The lawsuits filed Monday came as no surprise and were largely anticipated by all parties to the plan, which was hit by a string of suits before it even made it off the drafting table.
One of those suits was brought by the Business Coalition for Clean Air Appeal Group, an industry group that argued the plan wouldn't reach its goal by 2007 because it is based on flawed calculations in a complex computer model of Houston's emissions and atmospheric conditions. That suit was settled out of court.
In petitioning the 5th Circuit on Monday, the coalition appears to be challenging the scientific modeling for ozone formation in the Houston area upon which the plan is based. The group says a "collaborative" effort among it, the EPA and the Texas Natural Resource Conservation Commission, the state agency that drew up the plan, lead to an "unprecedented" scientific investigation into the root causes of ozone.
Regardless of what the 5th Circuit judges decide, the current plan will, in some form, still provide the basis of whatever amended plan may emerge, said Jim Marston, executive director of Environmental Defense and an attorney.
If the judges set aside the EPA's approval, the agency will have to impose a federal plan, which will most likely use the state plan as its base.
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