Spitzer v. God

No sooner had the Bush administration announced that it will modernize regulations governing older coal-fired power plants than the New York State attorney general, Eliot Spitzer, rushed out a press release threatening legal action. The ambitious AG says he wants to prevent the federal government from "gutting the Clean Air Act." He's upset that the administration's planned changes will significantly reduce the hassles for existing power plants to perform routine maintenance and expansions. The administration's modernizations will also undercut a pet lawsuit of Mr. Spitzer's, which accuses a number of Midwestern power plants of letting their pollutants waft downwind to New York.

Mr. Spitzer might as well sue God for creating these air flow patterns. Certainly Mr. Spitzer's goals have no more to do with with punishing wrongdoers than his campaign to drag gun manufacturers into court under trumped up legal theories. The case against the administration for allegedly gutting the Clean Air Act has everything to do with his plans to run for higher office. If Mr. Spitzer were serious about reducing the pollutants linked to acid rain — nitrogen oxide and sulfur dioxide — he would welcome the administration's changes to what is called New Source Review.

The regulation, in place since 1977, was not enforced until the Clinton years. Since then it has served as an impediment for power plants to perform routine maintenance and minor modifications, many of which would actually allow the plants to operate more cleanly. The Clinton administration interpreted the Clean Air Act as requiring power plants making such small modifications to be considered new sources of pollution, requiring them to install expensive emissions scrubbing technologies. It made the perfect the enemy of the good.

New York State, moreover, is one of the biggest exporters, under the 1990 Clean Air Act, of credits to emit sulfur dioxide. About 10% of its sulfur dioxide credits are sold to upwind states. Governor Pataki plans to make New York's sulfur dioxide restrictions even tighter, meaning more credits are going to be sold. Mr. Spitzer doesn't seem to want to grapple with these ironies. Which is why we say he might as well sue God. It would put the absurdity of his position into sharper relief.