Pa. pulls out of 5 pollution suits

State had joined federal environmental cases under Rendell

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Pennsylvania has withdrawn from five federal environmental lawsuits in which the Rendell administration had intervened in support of health protective regulations of greenhouse gas emissions and ground-level ozone, the primary component of smog.

The state's decision to end its participation in the federal cases again has raised concerns from local, state and national environmental organizations that Republican Gov. Tom Corbett's administration is charting a different course on regulation of fossil fuel energy and its air pollution emissions than did the previous Democratic administration.

According to federal court records, the state Aug. 5 withdrew from four cases it joined in 2010 in support of the U.S. Environmental Protection Agency's "endangerment" rule. That ruling found that carbon dioxide and other greenhouse gas pollutants that contribute to climate change also jeopardize human health and should be regulated by limiting emissions from vehicles, power plants and other large stationary sources.

Those four endangerment cases were filed by the Coalition for Responsible Regulation, a Texas-based nonprofit association of industry and business interests, to challenge the EPA's first-ever rule regulating greenhouse gas emissions. Pennsylvania and 15 other states had intervened on behalf of the EPA.

Pennsylvania also is listed in court documents as "terminated" from a 2008 federal lawsuit brought by New York that challenged the EPA's 2008 smog regulations as too weak to protect human health. Pennsylvania was one of 12 states, along with the District of Columbia, that had sided with New York.

All five cases are pending in the U.S. Court of Appeals for the D.C. Circuit. The smog case, New York v. U.S. EPA, was filed in May 2008 and has been put "in abeyance," meaning it's on hold while the EPA works on new, stricter rules limiting the emissions of smog-producing air pollutants.

Meleah Geertsma, an attorney with the Natural Resources Defense Council, another intervener on the endangerment cases, said the litigation will move forward, but Pennsylvania seems to be taking a step back.

"We think it is a very unfortunate development to have Pennsylvania pull out. We think it's an indication the state is moving in the wrong direction on air pollution regulation," she said.

Neither the governor's office nor the state Department of Environmental Protection announced that Pennsylvania had ended its participation in the ozone lawsuit, and neither has publicly discussed its reasons for withdrawing from that case or the other four. Katy Gresh, a spokeswoman for the DEP, noted in a written response to questions from the Pittsburgh Post-Gazette that the state had joined the legal action during the Rendell administration.

"[Pennsylvania] was only one of however many parties in the litigation and the litigation will continue," Ms. Gresh said. "While we will follow its progress, continued participation in the lawsuit would divert staff time from our core priorities and needs. We consider litigation an option of last resort and weigh our involvement in such cases carefully."

In response to a question about whether the DEP and the Corbett administration still supported the tougher federal controls on ozone-creating emissions, Ms. Gresh wrote, "Litigation isn't the only way to get things done. Just because DEP is not involved in litigation does not mean we don't think air quality is important. Of course, improving the commonwealth's air quality is a major part of our mission and our Bureau of Air Quality works daily to do just that."

Lauren Burge, staff attorney for the Group Against Smog and Pollution, a Pittsburgh-based environmental organization, said the state's decision to end participation in the endangerment cases calls that mission into question.

"When Pennsylvania originally intervened, it said it did so because failing to enforce the endangerment rule would pose a direct risk to the health and welfare of Pennsylvania residents," Ms. Burge said. "The commonwealth's decision to withdraw suggests the health and welfare of Pennsylvania residents is no longer a top priority."

Pennsylvania is not the only state that has dropped out of the endangerment cases. Hawaii and Arizona did so earlier this year.

Southwestern Pennsylvania and the Philadelphia area have some of the nation's worst levels of ground-level ozone -- a precursor to unhealthy smog.

The ozone lawsuit was filed by New York to force the EPA to reconsider its 2008 ozone regulations, which the states, including Pennsylvania, argued were too weak. States that are still part of that federal lawsuit are California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Oregon and Rhode Island, plus New York City and the District of Columbia.

At the time, Mississippi, and more than a dozen other states and industry trade groups also filed lawsuits challenging the ozone regulations as too stringent.

In its most recent filing in the case, New York argued that the court should order the EPA to make its decision on a new ozone regulation soon.

The EPA has requested that the court delay action on the lawsuits until it reconsiders and makes changes to the standards. The agency delayed adoption of the standards at the end of July and they are now undergoing review by the Office of Management and Budget. The agency said the new standard will be based on the best science and "meet the obligation established under the Clean Air Act to protect the health of the American people."

Jan Jarrett, president and chief executive officer of Citizens for Pennsylvania's Future, said the state's decision to join the suit was driven by science and a clear need for more health protective standards.

"We would hope that DEP still stands behind that position even if it has decided to formally leave the case," Ms. Jarrett said.

David Doniger, an attorney with the Natural Resources Defense Council, said the state's position change on environmental lawsuits may be the result of an organized campaign by the American Legislative Exchange Council, an industry and conservative funded group.

"We see [Pennsylvania] now aligning itself on greenhouse gas issues with the deniers, the anti-science and pro-industry concerns. And we're seeing this with a number of new Republican governors," Mr. Doniger said. "ALEC's campaign is aimed at getting states to back out of climate-related court cases."

Ms. Gresh did not respond to questions about whether the council has had contact with the Corbett administration or influenced its withdrawals from the lawsuits.

Reagan Weber, a spokeswoman for ALEC, said the organization has had no contact with the governor's office on the lawsuits and "never advocated for or against the lawsuit in any state."

According to the ALEC website, Pennsylvania is one of 13 states that adopted resolutions in 2011 calling on Congress to prevent regulation of greenhouse gas emissions under the Clean Air Act. Such regulation, it says, is unnecessary, costly and would hurt energy supplies and job creation.

Also on the ALEC website is a copy of a March 18 letter to President Barack Obama critical of several EPA regulatory initiatives, including the greenhouse gas and ozone regulations. It's signed by Mr. Corbett and 19 other governors.


Correction/Clarification: (Published September 7, 2011) David Doniger is an attorney with the Natural Resources Defense Council. A Friday article about Pennsylvania pulling out of five pollution lawsuits misidentified the organization.

Don Hopey: dhopey@post-gazette.com or 412-263-1983.


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