States are undercharging polluters, report finds

Does your state lack the money to vigorously enforce air pollution laws? That may be because it's letting polluters off the hook financially.

At least 18 states are charging industrial air polluters less than the federal minimum standard called for under the federal Clean Air Act, according to a new analysis from the Environmental Integrity Project. They include many states across the South, among them Alabama, Florida, Kentucky, Louisiana, Mississippi, North Carolina and Texas.

"States are shortchanging either the public health or the pockets of taxpayers by setting emission fees that are too low to cover the cost of Clean Air Act enforcement programs," says EIP Director Eric Schaeffer, a former top Environmental Protection Agency official who resigned in 2002 over his frustration with Bush administration efforts to weaken enforcement. "Only the polluters come out ahead of the game under an arrangement where states let them off the hook rather doing what they are supposed to under federal law that requires the industry to foot the bill for these vital monitoring and enforcement efforts."

According to the EPA, states should assess a minimum fee of $39.48 per ton for sulfur dioxide, nitrogen oxide, smog-forming volatile organic compounds, particulate matter and hazardous air pollutants. The fees are to be assessed on at least the first 4,000 tons of emissions of each pollutant and are used to monitor air emissions, hire inspectors and enforce regulations designed to meet federal air quality standards.

The states that EIP examined collected $53 million less than they could have under the law between 2002 and 2005. This in turn hurts enforcement efforts, since the fee standards aim to ensure that states have adequate resources for monitoring pollution from sources including power plants, refineries, cement kilns, incinerators and chemical facilities. Here are the shortfalls for the states documented in EIP's report:

State: Shortfall (Percent below minimum)
LA: $9.8 million (68)
TX: $5.6 million (22)
NC: $5.4 million (56)
FL: $4.8 million (37)
MI: $3.9 million (44)
AL: $3.6 million (40)
IN: $3.6 million (29)
WV: $3.5 million (45)
CO: $2.8 million (66)
OK: $2.7 million (39)
KS: $2.1 million (37)
ND: $1.7 million (70)
KY: $1.7 million (19)
WY: $1.7 million (37)
AZ: $1.4 million (66)
MS: $1.2 million (24)
DE: $762,000 (50)
SD: $374,000 (61)

The problem may be even bigger than indicated by the report, as EIP found evidence that at least 14 states other than those examined have fee structures that fall short of federal minimums.

An official with the Louisiana Department of Environmental Quality defended his state's low fees in today's New Orleans Times-Picayune:

"If we collected more than that it would be a tax. This is a fee for a service," said Thomas Bickham, undersecretary at the state agency. "We would have constitutional issues if we tried to collect more."

Charging more also would be a heavy political lift. Changing the fee requires a two-thirds vote of the Legislature.

EIP is calling on the EPA undertake a comprehensive evaluation of whether low emission fees are weakening the Clean Air Act permit and enforcement program. It also recommends that states assessing emission fees below the EPA minimum demonstrate that the revenues they're collecting are adequate to carry out their obligations under the law.

"Pollution from refineries and power plants are making our families sick," says Environment Texas Director Luke Metzger. "We are counting on the Texas Commission on Environmental Quality to hold polluters accountable. It is appalling that regulators are letting polluters off the hook for millions of dollars that could be put to work cleaning up our air."