The Adirondack Council

News Release

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RELEASED, Wednesday, April 10, 2002

ALBANY -- New York environmental organizations called upon Governor George Pataki and Attorney General Eliot Spitzer to appeal a US District Court decision nullifying a new state law that discouraged New York power companies from selling pollution allowances to Midwestern polluters whose smokestacks cause acid rain from the Adirondacks to Long Island.

The call for an appeal came from the Adirondack Council, Audubon New York and Citizens Campaign for the Environment.

"This was a complex case, and we appreciate that," said Adirondack Council Executive Director Bernard C. Melewski. "But there were several lapses in reasoning that we believe made dismissal before trial inappropriate, and worthy of appeal."

"For example," said Sarah J. Meyland, Executive Director and General Counsel for Citizens Campaign for the Environment, "Judge David Hurd found that it was inappropriate that New York State allows pollution trading in the state but sought to limit trading outside its borders. In fact, state law since 1984 has allowed the DEC Commissioner to intervene and overturn any trade within the state that might threaten sensitive resource areas like the Adirondacks. The whole notion of pollution trading was created for the first time in the state's acid rain control act, which went into effect in 1985."

"In addition, Judge Hurd finds that the state failed to look at other alternatives. The Judge suggests that the state could seek to lower emissions from the power plants located within the state. He exquisitely misses the point," said William C. Cooke, Director of Government Relations for Audubon New York. "Requiring more reductions at home, as Governor Pataki has proposed, is wise. But the benefits may be diminished quickly. Those pollution reductions will result in more allowances becoming available for sale to the Midwest. Without the law the judge has overturned, that pollution will simply fall back on our heads from a different smokestack."

"The judge found that Congress intended that no law be passed that would prohibit the transfer of allowances to any person, and ruled that the state law had prohibited the transfer," Melewski said. "In fact, it does not. Anyone can buy from anyone. And there is no restriction on anyone using that allowance. There is simply a financial penalty imposed on the New York company if one of its allowances is used in the Midwest."

"The judge also determined that NRG, which owns two coal fired power plants near Buffalo, suffered an injury of 2 percent of the value of their pollution allowances because they were somehow restricted," Melewski said. "Nowhere in his decision does the judge seem to recognize that Congress specifically included a clause in the Clean Air Act Amendments of 1990 stating that power companies would have no property rights whatsoever when it came to pollution allowances issued by the federal government."

"This law was designed to expire," CCE's Meyland said. "If Congress acts to curb emissions from power plants, DEC Commissioner Erin Crotty is required to report to the state legislature as to whether the actions taken are sufficient to protect sensitive resources within the state from acid rain. If the answer is yes, which we expect it would be, the sponsors clearly anticipated that a repeal would be appropriate."

"For all of these reasons, and on behalf of all New Yorkers who want to put an end to acid rain, we think the Attorney General and Governor should appeal this decision as soon as possible," Melewski concluded.