A Big Fine for the Nation's Largest Utility

Today's announcement that the country's largest utility will pay more than $5 billion for technology upgrades, penalties, and mitigation efforts in a settlement stemming from violations of the Clean Air Act is a coup for an administration whose environmental credentials are smudged at best.

The Natural Resources Defense Council, one of the most vocal of environmental groups, hailed the settlement with American Electric Power as a "historic" one that puts "big polluters on notice that they can no longer run and hide from their actions or circumvent the Clean Air Act," according to John Walke, who runs the organization's clean air program.

The settlement, reached in collaboration with the EPA, eight states, and 13 environmental organizations including NRDC, fits into the EPA's emphasis on pursuing fewer, bigger pollution cases rather than myriad smaller cases, though this particular case began back in 1999 under the Clinton administration. "It is an example of the type of case we think is appropriate for the federal government to address," said Granta Nakayama, assistant administrator for EPA's enforcement arm. "It affects over 40 plants.... and the actual emissions, both in the states where facilities are located, and downwind, cover swaths of the Midwest, the Southeast and the Mid-Atlantic." The settlement will reduce emissions of sulfur dioxide and nitrogen oxides by 813,000 tons by 2019.

But some observers wonder why the settlement took so long to reach and worry that big settlements or prosecutions will actually decrease. Eric Schaeffer, who resigned from the top cop job at the EPA in 2002 to protest the Bush administration's enforcement practices, says big cases are important but the EPA must "cover the whole waterfront" of polluters. Meanwhile, one study shows that the EPA has taken a less aggressive approach overall. Since leaving the EPA, Schaeffer has founded the Environmental Integrity Project, which has documented a significantly altered approach to enforcement by the federal government.

Since January 2001, the Department of Justice has filed 16 cases a year against violators who refused to settle, down from 52 cases a year in the last three years of the Clinton administration. Back in 1999, American Electric Power was one of those violators. "Had this case against AEP never been filed...we would not be celebrating the cleanup today," Schaeffer says. "We're worried in the long run, if there are fewer and fewer cases being filed, then the opportunities to celebrate big settlements will be fewer."

Schaeffer also argues that the government allowed American Electric Power to continue to pollute while it haggled over air pollution standards in court. "They've been partying for a few years while these cases have dragged on," says Schaeffer, who notes that some plants have increased emissions since 2001. Schaeffer praises the settlement and says the EPA deserves credit, but he believes "if they had more political support they could have pulled this settlement down earlier."

Nakayama counters that when it comes to the courts, the "wheels of justice sometimes turn at their own rate" and describes the government's pursuit of American Electric Power as "steadfast." He hails the settlement as a "great result for the public and a great result for the EPA and the Department of Justice."