Suffocating lawsuits

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The D.C. area is at red alert again. This time though, the threat is not the hot sunshine that baked residents and cooked up levels of ozone which were so high that air quality monitors registered Code Red. Rather, it is suffocating lawsuits.

Ozone, the primary component of smog, is a federally regulated pollutant. At high levels it can cause lung irritation, exacerbate asthma and possibly even worse. However, controlling the pollutants -- specifically organic chemicals and nitrogen oxides -- that cause ozone formation is neither easy nor cheap, because they come from so many sources. Automobiles, lawn mowers, power plants and even paints are potential sources.

So are other states. Stuart Freudberg, director of the Department of Environmental Programs at the Metropolitan Washington Council of Governments (COG), pointed out in an interview that 25 percent to 30 percent of ozone pollution comes from Midwestern states. In 1999, the region made the same claim to the EPA in an attempt to extend the deadline for coming into compliance with federal ozone statues. The EPA agreed and granted a multiyear extension. However, the environmental group Earthjustice challenged the agreement in court.

Last year, a federal appeals court sided with Earthjustice. As a consequence, the area was determined to be in severe non-compliance with federal ozone standards and was put on a sort of probation. For the next three years, none of the area's 18 air-quality monitors is permitted to register more than three Code Red violations. If that happens -- and last year, four monitors registered at least four violations -- then the area could potentially lose its federal transportation subsidies.

In response, D.C.-area governments agreed to spend almost $40 million to reduce vehicle emissions. COG also produced a plan -- to which the EPA gave conditional approval -- to further reduce ozone pollution. Those controls will come at a cost, since power plants will need to install new pollution control technologies, and controls on other point sources of pollution could be expensive.

Those reductions weren't enough for radicals. Last week, lawyers from Earthjustice, acting on behalf of the Sierra Club, sued to overturn the new agreement. In a press release, the latter hinted that the solution is a "redirection of transportation dollars away from new roads and towards better mass transit." That would take years to take effect -- assuming it was worth doing at all.

The region's ozone levels have actually decreased progressively over the years -- despite its large population increases. In fact, as Mr. Freudberg pointed out, the D.C. area currently meets federal air quality standards for five of the six regulated pollutants.

Far-left-of-center environmental groups have long tried to use clean-air lawsuits not to decrease smog but rather to slow growth. In reality, D.C.-area residents have less to fear from smog than they do from suffocating lawsuits.