Clearing the Air

Challenged by pro-business groups more interested in profit than in clean air, attorney Lewis C. Green fights to make the government enforce its own air-quality standards

Lewis C. Green doesn't like to see the government break the law, and, in this case, the government has been flouting its own statute for 21 years.

In November, the attorney filed a federal suit in U.S. District Court for the District of Columbia on behalf of the Sierra Club and the Missouri Coalition for the Environment. In the complaint, Green charges that Carol Browner, the administrator of the U.S. Environmental Protection Agency (EPA), has failed to enforce the federal Clean Air Act. Had Browner fulfilled her duties, he says, the federal government would have been compelled to impose sanctions, including the suspension of hundreds of million of dollars in federal highway funds to Missouri until the state finds a way to clear the air in St. Louis.

The potential barring of access to federal highway-funding coffers has raised the hackles of the corporate elite, who apparently value financial profits over the air they breathe.

With the threat of sanctions hovering over their collective noggin, the Regional Commerce and Growth Association (RCGA), the Missouri Chamber of Commerce and Associated Industries of Missouri (AIM) have denounced the lawsuit. AIM has gone so far as to file a motion to intervene in the suit, claiming that its members could be adversely affected by the outcome of the litigation. AIM has been joined in the cause by Missouri Attorney General Jeremiah "Jay" Nixon, who has filed an intervention motion on behalf of the state.

Nixon's deep-pocketed allies represent the same business interests that have been responsible for thwarting the local enforcement of the Clean Air Act for an entire generation. As a part of their latest efforts, they are attempting to sway public opinion by claiming that the pending lawsuit threatens the economic future of the region. Under the statute, the EPA is supposed to place limits on the further development or expansion of industrial sources of pollution in areas such as St. Louis that are in violation of air-quality standards.

In the automotive category, the Clean Air Act calls for the cutting off of federal highway funding to states that fail to curb excessive air pollution. It is on this basis that the business organizations contend that the environmental groups brought the suit not to protect human health but solely to stop the controversial Page Avenue extension and other highway development in the area. As evidence of the environmentalists' motive, the pro-highway lobby notes that the Sierra Club and the Coalition filed their suit within days of losing an initiative referendum last November over the Page Avenue issue.

A story in the St. Louis Post-Dispatch advanced the highway-roadblock theory last month, and Norb Plassmeyer, a spokesman for AIM, continued to parrot the same line last Friday: "They want to stop the Page Avenue extension, something that the people apparently want because they were given a chance to vote on it and they voted in favor or it. But these guys don't like that. So they want to stop it. That is one of their motives."

"That's nonsense," says Green. "If we could win all the things we're asking for, which a lawyer rarely does, we would temporarily cut off funds for Page Avenue, I suppose. But it would be only temporary. We're not close to getting any sanctions like that imposed. The fact is, we were determined to file this suit long before the referendum failed six months ago, and we sent EPA notice of that."

The crux of the issue, according to the lawsuit, is not Page Avenue -- it's ozone, a toxic component of smog. Since the EPA began monitoring ozone levels more than two decades ago, the St. Louis area has never been in compliance with national standards. Despite this abysmal record, the EPA has declined to impose its mandatory sanctions against St. Louis, which should include the suspension of federal highway funding.

Ozone forms when nitrogen oxides, volatile organic compounds and oxygen react in sunlight. Auto emissions and industrial air pollutants are responsible for most of the ozone found in urban settings. Human exposure to ozone causes respiratory disease. It is particularly harmful to children, older adults and people with asthma.

Last Saturday, Green moved around his office on the sixth floor of the Chemical Building downtown, copying and stapling documents as he rushed to prepare a motion for summary judgment. The motion asserts that on the basis of the facts, the Sierra Club and the Coalition should prevail. At 74 years of age, the Harvard-schooled lawyer is certain of the merits of his case, but he is also sage enough to understand the dynamics of the situation. "The whole thing is (about) politics," says Green. "On the law, they're absolutely dead."

In other words, the polluters have continued their egregious acts with the unswerving support of the political establishment. It is a bipartisan strategy, a chess game of sorts in which political pawns on the state and national levels defend the extralegal privileges of the barons of smog.

On the regulatory front, for example, Missouri Department of Natural Resources director Steve Mahfood last week belatedly touted the letting of a contract for thecontinued on next pagecontinued from previous pageconstruction of enhanced auto maintenance and inspection stations in the St. Louis area, one of the clean-air remedies stalled by the state in recent years. Mahfood, of course, reports to Democratic Gov. Mel Carnahan. The DNR publicity campaign essentially echoes the pro-business line -- that the purpose of the Sierra Club and Coalition lawsuit is to thwart highway construction, including the Page Avenue extension. It's a refrain that Green has heard before.

"He's carrying the ball for industry, as government usually does," says Green of Mahfood. "That pitch is the (same) pitch being advanced by the publicrelations firm hired by AIM and RCGA. They're putting out press releases saying that's our sole purpose."

On the legislative front, U.S. Sen. Christopher "Kit" Bond (R-Mo.) announced plans last week to introduce legislation in Congress that would halt the federal government's ability to withhold federal highway funds from metropolitan areas that fail to meet clean-air standards. In short, the senator wants to make a new law not to enforce the old one.

If St. Louis is cursed with a hot summer, Green says, more air-quality violations are inevitable. The current lawsuit pertains to the old ozone standards, which have since been replaced by more stringent EPA enforcement levels. "In 1997, they changed the standard because everybody agrees that it would not protect public health," says Green. "We're nowhere near close to attaining the new standard, and there is no plan to attain the new standard. All we're squabbling about are plans to get to the old standard -- which (the EPA) has already rejected.

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