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Local environmentalists sue the EPA to downgrade the city’s air-quality rating.

Attorney David Baron’s office at the Earthjustice Legal Defense Fund in Dupont Circle holds little that points to his occupation. There are snapshots of his wife and son, a photo of a waterfall gushing through a lush green valley, a poster that’s patterned on a Hopi sand painting, and a clock made from sandstone. The only tangible clue to Baron’s job as an environmental lawyer are two small drawings by his son, taped together into a tableau of sorts. One picture depicts a sunny day with the word “Right,” and the other, a drawing of a factory spewing out smoke, labeled “Wrong.” The title? “What My Daddy Does.”

Baron’s latest project for Earthjustice is a lawsuit that targets the Environmental Protection Agency (EPA) decision to extend a clean-air deadline for the Washington metropolitan area until 2005. The EPA’s extension allows the District to postpone attaining a federal ozone standard that was originally to have been met by 2000.

The original deadline was established to curb ground-level ozone (more commonly known as smog), which is exacerbated greatly in the D.C. metro area when summer rolls in. Air quality in the District and its environs worsens considerably when certain factors that produce such ozone coincide, including temperatures in excess of 90 degrees and the reaction of long days of sunlight with smog-causing pollutants. The result is unhealthy air conditions for children, lung-disease sufferers, and, on particularly bad air-quality days, the general population as well.

Last year was not the worst year on record for smog in the D.C. area. There were only six days when the temperature hit 90 degrees or above, and National Weather Service statistics paint that summer as relatively mild and wet. This year’s forecast promises more conducive conditions for smog, because the cooling effects of the El Niño and La Niña weather systems in the Pacific Ocean have ceased to affect weather patterns here. Long-term models predict that there could be as many as 30 days with temperatures above 90 degrees this summer.

The EPA’s extension of the deadline was supported by the Metropolitan Water and Air Quality Council (MWAQC), which studies regional air quality and makes recommendations to the Washington Metropolitan Council of Governments. The extension gives the District and surrounding counties more time to bring smog levels down by lowering emissions from automobiles and factories that contribute to high ground-level ozone levels.

Baron says that Earthjustice brought the suit to keep the pressure on those same local officials to meet stringent air standards more quickly. The suit would force the EPA to downgrade the air-quality classification for the District and 10 Virginia and Maryland counties from “serious” to “severe”—which would result in a tightening of regional pollution standards and the possible reallocation of government transportation spending to more heavily subsidize mass transit.

One of the lawsuit’s main contentions, Baron continues, is that the EPA usually automatically downgrades the classification of areas that are given deadline extensions in such a manner. In the case of Washington, D.C., the EPA did not do so.

An EPA spokesperson said that the agency would not comment on the Earthjustice litigation, because the initial legal briefs in the case have not yet been submitted.

According to the American Lung Association, the D.C.-Baltimore area is one of the top 10 most ozone-polluted areas, but only the Baltimore area is classified at present with an EPA rating of “severe” pollution. Local environmental activists point to any number of statistics to bolster their claims that D.C.’s air is also worthy of the more dire tag of “severe.”

This year’s edition of the American Lung Association’s annual report, State of the Air, gives the District and a number of adjoining counties, including Arlington and Fairfax in Virginia, and Montgomery and Prince George’s in Maryland, F’s for their air quality.

The number of unhealthy-air days in the region over a three-year period (1997-1999) stood at 57 days considered unhealthy for sensitive groups, six days classified as generally unhealthy, and one day labeled as very unhealthy.

Ground-level ozone is the only air pollutant in which Washington regularly exceeds federal air quality standards. On average, since 1990, the area has exceeded the EPA’s maximum permitted ozone level six days every summer. Federal law permits an average of one day per summer.

Baron says that about 50,000 children and 100,000 adults in the D.C. metropolitan area are susceptible to illness from polluted air, and the American Lung Association estimates that as many as 2,400 people in the region end up hospitalized during summers when air quality is particularly bad.

Many local officials take issue with Earthjustice’s urgency in filing its lawsuit against the EPA. They argue that there is substantial evidence that a good portion of ground-level ozone in the District originates elsewhere in the United States.

Joan Rohlfs, chief of air-quality planning for the Washington Metropolitan Council of Governments, says that on a typical summer day, more than one-third of the ground-level ozone in the District arrives here from the Midwest or from northern cities such as Baltimore. Smog-forming pollutants can travel for hundreds of miles via prevailing winds.

Rohlfs says the District’s smog problems won’t improve until 23 other states meet a nitrogen-oxide emission deadline set by the EPA. Nitrogen oxide is one of the factors that help create smog, and Rohlfs argues that these states’ eventual compliance will slow the flow of pollution into the Washington area. Until then, she says, it makes little sense to ratchet up local standards.

“We can take local measures toward cleaning up, but as long as we have this factor that we can’t control, our hands are tied,” says Rohlfs. “In the meantime, there are a lot of steps we are taking to improve air quality, like trying to reduce single-occupancy driving and promoting cleaner fuels.”

To date, however, the Washington region has not met the same standards that it wants other states to meet. The MWAQC has proposed a plan by which the area will meet the nitrogen oxide standard by 2003. If all 23 noncompliant states meet those same guidelines by 2004, MWAQC officials argue, then the District will be in position to meet the EPA’s clean-air standards by the 2005 deadline.

Local governments first grappled with harmful emissions in the mid-’80s, and they can point to some tangible progress since then. In the mid-’80s, for instance, the District averaged 12 high-ozone days per year.

Environmental watchdogs counter that passive reliance on other states’ compliance and complacency at having halved the District’s ozone days each year are not enough.

“D.C.-area governments cannot point fingers at other states until they have done all they can to cut pollution locally,” says Glen Besa, a regional spokesperson for Sierra Club. “The region cannot simply blame pollution produced elsewhere for our smog problems. We’re fouling our own nest.”

District officials said they are in favor of cleaner air, but they also support the EPA extension for now. At-Large D.C. Councilmember Phil Mendelson notes that the city can take steps to curb emissions from buses and city fleets of cars.

Converting the region’s mass-transit vehicles to cleaner-burning fuels has been a step urged by local environmental groups for over a year (“Bad Air Day,” 5/5/00). Compressed-natural-gas buses, which burn more cleanly than diesel buses, cost an additional $50,000 per bus. (The current Metro bus fleet is 1,443 vehicles.)

“We are all pretty much on the same page [with Earthjustice]. We want cleaner air,” Mendelson says. “And we need to see if there aren’t incentives we can use to promote the infrastructure to support cleaner-burning gas.”

Baron remains dubious about the intentions of local governments to provide the cash to promote cleaner air on their own. He points to the fact that there still has been no study to determine the cost of implementing the clean-air deadlines for 2000 as an indication of where local priorities lie.

No matter what its outcome, the Earthjustice suit won’t have an impact on this summer’s smog. Initial briefs in the suit are due on May 25, and the U.S. Court of Appeals has set Feb. 4, 2002, as the opening date for arguments in the case. CP