One Man's Trash May Be Everyone's Treasure

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By: Rachel Shelton, Staff Member

Garbage is something that everybody has but nobody wants - right? Apparently the opposite is true in Sweden. Sweden has been so successful at using almost all of its own trash to produce energy that Norway is now paying Sweden to dispose of its garbage as well.[1] According to Swedish Waste Management, the incineration of household trash provides enough energy to power 250,000 homes and to meet one-fifth of the country's heat production needs.[2] Only four percent of the nation's trash ends up in landfills.[3] Strangely, waste incineration does not seem to be a hot topic in the current American alternative energy debate. The United States has made some progress toward using incineration as a way both to create energy and to reduce the amount of trash that ends up in landfills, but the practice is underutilized on this side of the Atlantic.

There are currently 86 waste-to-energy trash incinerators in the United States.[4] The Environmental Protection Agency reports that in 2010, about 29 million tons of the nation's municipal solid waste (about 12% of total waste) was combusted to create energy.[5] Capturing the methane from buried trash decomposing in landfills is another way to utilize trash as an energy source; however, EPA researchers found that incinerating trash can generate up to 10 times the amount of electricity from the same amont of waste.[6]

Regulations of waste-to-energy technology do not appear to be hindering development. Recent adaptations to relevant EPA regulations seem to encourage the use of processes that derive energy from waste. Amendments include the clarification of which materials used in the combustion process are considered "solid wastes" for purposes of the Resource Conservation and Recovery Act (RCRA).[7] The definition under the Act determines whether a "combustion unit" qualifies as a waste incineration unit and must meet emissions standards under the Clean Air Act.[8]

Another example concerns regulation of a waste-to-energy process. "Gasification" is a process which "converts any material containing carbon - such as coal, petroleum coke... or biomass - into synthesis gas (syngas)," which can then "be burned to produce electricity or further processed to manufacture chemicals, fertilizers, liquid fuels, substitute natural gas (SNG), or hydrogen."[9] In 2008 the EPA excluded "oil-bearing hazardous secondary materials" from the definition of "solid waste," so that the materials that are used for "gasification" have the same regulatory status as those same types of materials when they are placed back into the petroleum refining process.[10] The purpose of the exclusion was to classify gasification as a petroleum production activity rather than a waste management activity, despite the fact that the production involves reusing waste materials.[11] The emphasis of regulation shifted from the need for disposal of certain materials to their potential to create energy.

The challenges of pursuing energy reform are much greater for a country as large as the United States than for a small country like Sweden. Difficulties of scale aside, the United States would do well to make better use of its trash. Despite the viability of the waste-to-energy process, no new incinerators have been built in the United States since 1995.[12] Fear that the concept may undercut recycling efforts, as well as opposition to incineration, may account in part for American hesitancy.[13] Recycling and reduction of waste would be ideal. Yet currently 54% of the trash in the United States still goes into a landfill.[14] Form a "lesser evils" perspective, the waste-to-energy concept looks promising.
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[1] Sophia Jones, Sweden Wants Your Trash, The Two-Way, Breaking News From NPR (Oct. 28, 2012), http://www.npr.org/blogs/thetwo-way/2012/10/28/163823839/sweden-wants-your-trash.
[2] Towards a Greener Future with Swedish Waste-to-Energy The World's Best Example, Avfall Sverige Swedish Waste Management, http://www.avfallsverige.se/fileadmin/uploads/forbranning_eng.pdf (last visited Nov. 3, 2012). 
[3] Towards a Greener Future with Swedish Waste-to-Energy The World's Best Example, supra note 2.
[4] Energy Recovery from Waste, Environmental Protection Agency, http://www.epa.gov/osw/nonhaz/municipal/wte/index.htm (last updated July 24, 2012). 
[5] Municipal Solid Waste Generation, Recycling, and Disposal in the United States: Facts and Figures for 2010, Environmental Protection Agency, 2 (2010) http://www.epa.gov/epawaste/nonhaz/municipal/pubs/msw_2010_rev_factsheet.pdf.
[6] Environmental Protection Agency, Energy from Waste: Burn or Bury?, Science Matters Newsletter (Sept. 21, 2011), http://www.epa.gov/sciencematters/april2010/scinews_energy-from-waste.htm.
[7] Identification of Non-Hazardous Secondary Materials that are Solid Waste, 76 Fed. Reg. 15456 (Mar. 21, 2011) (codified at 40 C.F.R. pt. 241).
[8] Id.
[9] What is Gasification?, Gasification Technologies Council, http://www.gasification.org/page_2.asp?a=1&b=85 (last visited Nov. 2, 2012).
[10] Regulation of Oil-Bearing Hazardous Secondary Materials from the Petroleum Refining Industry Processed in a Gasification System to Produce Synthesis Gas, 73 Fed. Reg. 57 (Jan. 2, 2008) (codified at 40 C.F.R. pts. 260-61).
[11] Id. at 58.
[12] Energy Recovery from Waste, supra note 4.
[13] Elisabeth Rosenthal, Europe Finds Clean Energy in Trash, but U.S. Lags, N.Y. Times (Apr. 12, 2010), http://www.nytimes.com/2010/04/13/science/earth/13trash.html?pagewanted=all&_r=0.
[14] Municipal Solid Waste Generation, Recycling, and Disposal in the United States: Facts and Figures for 2010, supra note 5. 

Has Obama lost the coal states? The Courts v. The Industry

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By: Jessica Durden, Staff Member

The embattled coal states, already stressed by the rise of the natural gas industry, were dealt another blow when the U.S. Court of Appeals for the District of Columbia Circuit upheld an Environmental Protection Agency (EPA) mandate to fiercely limit greenhouse-gas emissions.[1]  The Court fully supported the EPA in its finding that rising carbon dioxide emissions from the coal industry and other utility providers have “likely been responsible for global warming over the past half century.”[2]  The ruling piggybacked on a 2007 Supreme Court ruling that the EPA had power under the Clean Air Act to regulate greenhouse-gas emissions.[3]

In a heated election year, such a dramatic ruling could hurt the incumbent President Obama in his election efforts.  Obama lost Kentucky and West Virginia, two major mining states, in 2008.[4] Peppered along the highways in West Virginia are billboards declaring that the coal corridor is Obama’s “No Job Zone,” and West Virginia democrats have withheld support for the President because of his support for the EPA’s strict regulations.[5] The 2012 polls in mining states were not in Mr. Obama’s favor prior to this ruling, either.  In the Kentucky Democratic primary, 42 percent of registered and voting Kentucky Democrats voted for “uncommitted,” and in West Virginia a shocking 41 percent of state Democrats marked down a convicted felon’s name over Mr. Obama’s.[6]  Kentucky’s primary vote result particularly shocked industry experts because there was not even another option on the ballot.[7]

These results are not entirely shocking, since Obama did not take these states in 2008 and was not projected to this year, but for a swing state like Ohio, this ruling could have major implications. Presumed Republican presidential candidate Mitt Romney has already jumped on the opportunity to gain favor in coal-dependent Ohio by launching an energy-focused campaign in the state.[8]  In an incredible streak, Ohio has picked the winner of the presidential election every year since 1964, and recent polls still put Mr. Obama ahead of Mr. Romney.[9]  But this recent ruling gives Mr. Romney a strategic opening to appeal to the many industrial workers in Ohio struggling to get on board with the demands of the EPA.  If the Romney camp convinces Ohio, it is possible to win the state—and therefore win the nation in November.

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[1] Brett Kendall, Court Backs EPA on Warming, Wall. St. J., June 26, 2012, at A1.

[2] Id.

[3] Id.

[4] Election Results 2008, NY Times, (Dec. 9, 2008), http://elections.nytimes.com/2008/results/president/map.html.

[5] Mark Caserta, Will W.Va. become an Obama “no-job” zone?, Huntington Herald-dispatch, (June 21, 2012), http://www.herald-dispatch.com/opinions/x1805694144/Will-W-Va-become-an-Obama-no-job-zone.

[6] Aaron Blake, Obama loses 40 percent of the primary vote in Arkansas, Kentucky, (Wash. Post, May 22, 2012), http://www.washingtonpost.com/blogs/the-fix/post/obama-loses-more-than-40-percent-of-kentucky-primary-voters-to-uncommitted-option/2012/05/22/gIQAlYHEjU_blog.html.

[7] Id.

[8] See Kendall at A1.

[9] Tom Troy, Obama, Romney camps pull out all stops in Ohio, Toledo Blade,( July 1, 2012), http://www.toledoblade.com/Politics/2012/07/01/Obama-Romney-camps-pull-out-all-stops-in-Ohio.html.

New Mercury Rules—Benefit or Bust?

 

 

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By: Ashley Payne, Senior Staff Member

According to the Environmental Protection Agency (EPA), “mercury is a naturally occurring element found in air, water and soil.”[1] Mercury is also found in many rocks, including coal.[2] Mercury is released into the environment when coal is burned.[3] In fact, “coal-burning power plants are the largest human-caused source of mercury emissions in the United States.”[4] This becomes a problem once the mercury from the air settles in water, resulting in mercury build-up in fish, shellfish, and animals that eat fish.[5] While exposure to mercury at high levels may cause harm to the brain, heart, kidney, lungs and immune system, research indicates most people’s fish consumption is not a health concern.[6] However, such mercury levels may cause harm to unborn babies and young children’s nervous system, causing potential learning disabilities.[7]

In response to these potential health risks, congress enacted the Clean Air Act. Specifically, section 112 addresses emissions of hazardous air pollutants.[8] “Section 112 requires that EPA establish emissions standards that require the maximum degree of reduction in emissions of hazardous air pollutions.”[9]  On December 21, 2011, the EPA finally demanded that coal-fired power plants reduce their emissions by 90 percent as the 1990 Clean Air Act demanded.[10] These regulations are in response to a Consent Decree of the D.C. Court of Appeals requiring a proposal by March 16, 2011, and a final rule by December 16, 2011.[11]

These rules ultimately establish a limit for emissions for qualifying facilities that must be met within four years.[12] There are currently about 1,100 coal-fired burners being used at 600 power plants nationwide.[13] The EPA estimates that the implementation of this statute will cost approximately $9.6 billion.[14] However, the EPA also estimates that the health benefits will equal somewhere between $37 billion to $90 billion.[15] Ultimately, these regulations may not be as beneficial as the EPA foresees. According to the executive director of the Partnership for Affordable Clean Energy, “numerous studies have shown it will result in the loss of more than one million jobs in the next decade.”[16] The American Coalition for Clean Coal Electricity indicated that the rules could cost an average of 183,000 jobs every year from 2012-2020.[17] An associated press analysis “estimated that of the nation’s 600 coal-fired power plants, more than thirty-two would likely close because they would not be cost-effective to run under the new rules.”[18]

While it is hard to tell at this juncture how the new mercury rules will ultimately affect the coal-fired power plants, one thing is certain: the $9.6 billion dollar burden placed upon such facilities will not be easy to face. If, as is predicted, there are plant closings and a loss of jobs, the effects will be felt most harshly in those regions with the majority of coal-fired power plants—the mid-east. However, if the benefits are as the EPA describes them—avoiding premature deaths, heart attacks, respiratory problems, etc.—the temporary economic hardship may well be worth the cost.

EPA Announces Settlements with Glass and Cement Makers

By: Derek Leslie, Staff Member

In late January, the EPA announced that Saint-Gobain Containers, Inc., a glass manufacturer, and Lafarge North America, Inc., a cement manufacturer, both agreed to multi-million dollar settlements. The settlements, which cover fifteen glass manufacturing plants and thirteen Portland cement manufacturing plants, represent the first major EPA action since announcing a renewed focus on improving compliance among industries that emit significant amounts of air pollution. Under the settlements, the companies are required to install new pollution control upgrades, accept enforceable emission limits, and pay substantial civil penalties.

In the complaint, filed concurrently with the settlement statement, the EPA alleged the companies had violated new source permit provisions under the Clean Air Act ("CAA"). The CAA requires major sources of air pollution to obtain a permit before modifying the facilities in a way that would significantly increase the emissions of pollutants. CAA permits limit these emissions for specific pollutants at a particular facility. As part of the settlement, Saint-Gobain has agreed to install pollution control equipment totaling an estimated $112 million in order to reduce emissions of NOx, SO2, and particulate matter (PM) by approximately 6,000 tons each year. Additionally, they have agreed to pay a $2.25 million civil penalty, split between the federal government, ten states, and two regulatory agencies. Similarly, Lafarge has agreed to pay a $5 million civil penalty, and spend an estimated $170 million installing and implementing control technologies to curb NOx emissions by 9,000 tons each year and SO2 by more than 26,000 tons per year at their cement plants.

These settlements are an example of more rigorous EPA oversight over CAA emissions, and indicate that the EPA will be enforcing the act more aggressively, pushing NSPS permitting beyond the paradigmatic regulated industries. Indeed, Ignacia Moreno, Assistant Attorney General for the Justice Department's Environment and Natural Resources Division in the announcement suggested, "Enforcing the Clean Air Act's new source review program is a priority, not just in the coal-fired power plant industry, but also in industries like cement and glass manufacturing that have been identified as major sources of pollution. Companies in these industries should strongly consider the benefits of these types of settlements as we intend to aggressively enforce compliance with the law."

Source: United States Announces Two Major Clean Air Act New Source Review Settlements at 28 Industrial Plants Nationwide, January 21, 2010, http://yosemite.epa.gov/opa/admpress.nsf/0/3CCB6EBF63B522AF852576B2006439B7

Recession May Provide Opportunity for Senator to Stifle EPA’s Regulatory Authority under the Clean Air Act

By: Addison Schreck, Staff Member

In December of 2009, the Environmental Protection Agency announced that it had conclusively determined that greenhouse gases, previously notorious primarily for their effects on the environment, also threaten public health. msnbc.com, EPA: Greenhouse Gases are Dangerous to Humans, Dec. 7, 2009, http://www.msnbc.msn.com/
id/34311724/ns/us_news-environment/. In making this determination the EPA cleared the way for regulation of greenhouse gases under the Clean Air Act. This announcement peaked the interests of environmentalists and the fears of big businesses across the country.

Even more recently, on February 2^nd, Senator Lisa Murkowski (Alaska (R)) introduced a resolution intended to strip the EPA of the aforementioned ability to regulate greenhouse gases via the Clean Air Act. John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html. In addition to curtailing the EPA's ability to regulate six of the primary gases blamed for global warming, the bill seeks to restrain the EPA from finding that U.S. fuel production of biofuels, such as ethanol, is responsible for forest clearing and cropland expansion. Charles Abbott, House Bill Would Prevent EPA Regulating Carbon, Scientific American, Feb. 3, 2010, http://www.scientificamerican.com/article.cfm?id=house-bill-would-prevent.

The concerns voiced by Murkowski, which include predictions of increased agriculture costs come as no surprise after the alarms raised by the national business community in past years. Deborah Zabarenko, CO2 Regulation Could Hit 1 Million U.S. Firms, Reuters.com, Sept. 16, 2008, http://www.reuters.com/article/idUSN1529571120080916. The senator's resolution would require a majority vote in the Senate, and if the resolution does advance through the House it would face the near certainty of veto by President Obama, "because it would rob him of a critical regulatory tool." John M. Broder, Senators Want to Bar E.P.A. Greenhouse Gas Limits, N.Y. Times, Jan. 21, 2010, available at http://www.nytimes.com/2010/01/22/science/earth/22climate.html.

The mood in the United States is one of hope, hope that we have seen the worst of the recession. Whatever legislation or regulation comes into existence, the tenuous economic situation the in which the country and world are positioned must be taken into account. So many of the jobs lost in the current recession are said not to be coming back, and we are seeing entire professions virtually disappear, whether to overseas markets or the relentless march of time. Catherine Rampell, The Growing Underclass: Jobs Gone Forever, N.Y. Times, Jan. 28, 2010, available at http://economix.blogs.nytimes.com/2010/01/28/the-growing-underclass-jobs-gone-forever/. However, the promotion of growth does not mean that progress on the climate change front must come to a halt. At least one side of the debate sees hope in the possibility of so called "green jobs," and if the old industries are no longer interested in doing business within our borders, then what's so wrong with reinventing ourselves? Carol E. Lee, Obama Focuses on Green Jobs, Politico, March 23, 2009, http://www.politico.com/news/stories/0309/20360.html. Necessity has always been the mother of invention, a quick look at today's headlines, and it's obvious, it's time to get inventive.

Unknown Economic Effects of Greenhouse Gas Regulation on Agriculture May be Forestalled

By: Anthony Cash, Staff Member

The Southwest Farm Press recently reported that the American Farm Bureau Federation ("AFBF") voted at their annual meeting to oppose "cap and trade legislation," such as the American Clean Energy and Security Act ("ACES") that was passed by the House of Representatives on June 26, 2009, and any attempt by the EPA to regulate green house gases under the Clean Air Act. Top Concerns of AFBF Delegates, Southwest Farm Press, Jan. 15, 2010, http://southwestfarmpress.com/news/afbf-concerns-0115/ (last visited Jan. 21, 2010). However, commentators have pointed out that the economic impact of ACES or any greenhouse gas regulation on farmers is widely contested, with the AFBF estimating income losses to farmers at $5 Billion by 2020 and Iowa State's Center for Agricultural and Rural Development arguing that there will be very little impact to farmers. USDA Climate Bill Analysis: Ag Gains, Southwest Farm Press, Jan. 15, 2010, http://southwestfarmpress.com/legislative/laws-column-0118/ (last visited Jan. 21 2010).

With such widely varying economic analysis, it is difficult for lay persons to understand exactly what impact such legislation would have on agriculture, generally, and in the state of Kentucky, specifically. Clearly, more public debate is needed on the issue to fully vet the claims proffered by various groups. However, such a debate cannot fully occur if the Environmental Protection Agency succeeds in its attempts to regulate greenhouse gas emissions through the powers granted to it under the Clean Air Act. This action by the EPA follows from the Supreme Court case of Massachusetts v. EPA, in which Justice Stevens wrote for a five member majority. Justice Stevens wrote, "In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change." Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 534 (2007).

As James Madison, speaking of the importance of the Senate in Federalist No. 63, articulated "[T]here are particular moments in public affairs . . . when the people may call for measures which they themselves will afterwards be most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens[.]" The Federalist No. 63 (James Madison). Thus, the recent renewal of attempts by Senator Lisa Murkowski of Alaska to pass legislation that would foreclose the EPA's ability to regulate greenhouse gases, regardless of the motivations behind the legislation or the wisdom of a policy regulating greenhouse gas emissions, may enable a more meaningful public discourse on the possible economic effects of such legislation on agriculture in the United States and fulfill an important function of the United States' bicameral system of legislature.

“Mother May I? California’s Struggle for Clean Air Under the Federal Government’s Preemptive Thumb: Engine Manufacturers Ass’n v. South Coast Air Quality Management District”

Appearing in JNREL Vol. 20 No. 2 the following comment was written by former staff member Anne Todd. Staff member Tara Hester wrote the following abstract.

The federal Clean Air Act (CAA) is superior to the laws of the states and cannot be preempted. Not only does the CAA rely on this general rule of preemption, but has explicit preemptory language as well, stating that "no state shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles . . . . " Engine Manufacturers Ass'n v. South Coast Air Quality Management District, 541 U.S. 246,252 (2004), involved the implementation of " Fleet Rules" issued by the South Coast Air Quality Management District (AQMD), and is centered on whether those "Fleet Rules" constituted a standard in violation of the CAA.

During World War II, Los Angeles began to see the effects of increasing industrialization in the form of severe air pollution. Due to California's distinctive air pollution problems, Congress recognized that more stringent measures would be needed to combat the poor air quality, and the CAA granted California exclusive authority to set tougher emission standards than those implemented by the federal government.

The defendant in the subject case, AQMD, has the responsibility of ensuring the Los Angeles area achieves certain air quality standards. AQMD enacted "Fleet Rules" requiring various public and private operators of area fleets of fifteen or more vehicles to buy alternative fuel or cleaner fuel vehicles when these vehicles were commercially available. The fleet rules did not regulate manufactures, but set purchase requirements for when new vehicles were needed. However, the Engine Manufactures Association (EMA) said the purchasing requirements were standards preempted by the CAA and therefore not enforceable.

The District Court's decision is centered on an extensive analysis of the preemption doctrine. The court noted that the CAA states that fleet rules must be established in areas of high pollution, and it does not seem logical that the CAA would authorize purchasing requirements in the form of fleet rules and then prohibit them as the adoption of a "standard". The Court stated that in the area of traditional local police powers, such as air pollution prevention, the presumption is that local powers are not preempted.

However, the Supreme Court took a different view, characterizing the AQMD's Fleet Rules as standards and therefore in violation of the CAA. The Court first stated that if AQMD could enact standards, then other political subdivisions could do the same, and this would undo Congress's regulatory scheme. However, the most significant error the Court made was its reliance on a textual interpretation of the CAA rather than a broader look at the preemption doctrine. As suggested by the dissent, AQMD's purchasing requirements were not mandates because they only required the purchase of lower emission vehicles that were already on the market, and were not applicable if the fleet operators required models that were unavailable in a cleaner fuel model. Also, while the fleet rules may have reduced the demand for higher emission vehicles, it would not have completely destroyed the market for them.

By disallowing AQMD's fleet Rules, the Court took away a direct route to air quality improvement and forced AQMD to work through the California legislature to get results implemented. The AQMD must go back to the long line of those awaiting Congress' attention in order to make a change affecting fuel emissions. Additionally, agencies like the AQMD will no longer be able to provide strong incentives for manufacturers to create "cleaner" vehicles. This extremely broad reading and application of preemption led the Court to essentially ignore public policy reasoning in support of air quality.

“Disappearing Acts: How Parens Patriae Makes Private Environmental Suits Vanish in the Blink of an Eye”

Appearing in KJEANRL Vol. 1 No. 1 this comment was written by former Editor-In-Chief Chris Way. The abstract was written by staff member Stephanie Wurdock.

Citizen suits essentially allow private citizens to litigate on behalf of themselves and the general public against entities who violate environmental statutes. However, after those citizens bring suit, the government may assume the role of “parens patriae” in which it acts on their behalf. The result is often a “consent decree,” a settlement agreement between the government and the offender. This action ends in dismissal of the original citizen-suit.

By focusing on a 2004 citizen-suit in which injunctive relief and civil penalties were sought for numerous violations of the Clean Air Act (CAA), one may examine the reasons for the parens patriae policy. This in-depth examination provides a path for exploring the potential implications of barring subsequent private suits brought under citizen provisions.

An important question concerning suits of this nature is when parens patriae applies and whether or not it creates privity between the government agency and the private citizens it represents. The courts have followed a number of different guidelines to make such determinations and to decide when a consent decrees bar further citizen-suits. Looking to the standards developed by the Eighth, Seventh, and Second Circuits presents a comprehensive view of these approaches. Furthermore, an analysis of those courts’ decisions provides a basis for the holding in the 2004 citizen-suit in which the “diligent prosecution test” of the Seventh Circuit was adopted.

The implications of the Court’s holding include the potential for widespread application of the “diligent prosecution” standard in similar suits and the unaffected ability of the government to address environmental violations. The decision also has significant implications for what remedies are available to the individual citizens of the original plaintiff class. Finally, the holding provides additional individual causes of action for persisting environmental violations.

EPA Sues Coal- Fired Plant Owner for violating Clean Air Act: What’s Next?

This post was written by staff member Natasha Camenisch.

Chicago has struggled with poor air quality for centuries. The repercussions of being a leading industrialized city are continuing to be felt by residents and visitors alike. To this day Chicago is still battling with their ever-growing pollution problem.

The United States Environmental Protection Agency (EPA) was created in 1970 to put a limit on the amount of pollution that can be introduced in the air. EPA History, http://www.epa.gov/history/ (last visited Aug. 31, 2009). Congress passed the Clean Air Act in order to deal with pollution problems. On Thursday, August 28, 2009 the EPA and Illinois Attorney General sued Midwest Generation of violating the Clean Air Act. Michael Hawthorne, Air pollution lawsuit: Federal and state lawyers sue Midwest Generation over Illinois power plant emissions, Chicago Tribune, http://www.chicagotribune.com/health/chi-chicago-pollution-suit-28-aug28,0,2243476.story (last visited Aug. 28, 2009).

The lawsuit cites six plants owned by Midwest Generation that violate the Act. Federal records indicate that the smoke being released from the plants makes them some of the largest contributors to air pollution in Chicago and the surrounding areas. According to a Harvard School of Public Health study two of the plants alone in 2001 were responsible for “2,800 asthma attacks, 550 emergency room visits and 41 early deaths every year.” Id.

What is really interesting about this lawsuit is the fact that the Illinois EPA did not join in the suit as a plaintiff. In a previous agreement, the Illinois EPA and company officials have already agreed to clean up or close the six plants by 2018. Id. This federal lawsuit will probably force the plants to either shut the plants or improve them on a faster pace.

The Midwest Generation is the most recent power company to face tougher inquiry from the EPA. One of the plants began operating in 1903, while others in the lawsuit date to the 1940s through the 1960s. Id. The EPA finally decided that older plants should conform to modern pollution standards because of their many modifications and expansions. Two questions remain. First, whether the EPA will be able to prove Midwest Generation did violate the Clean Air Act? Second, will other older power companies face similar prosecution?