In late 2014, the election of Larry Hogan as governor of Maryland, a Republican in a bright-blue state, came as something of a shock. One of Hogan’s first actions, in January of 2015 just after he was sworn in, was to halt a clean air regulation that limited the pollutants NOx, which leads to smog along with high ozone levels.
This came as bad news to Baltimore resident Christine Keels, who suffers from chronic asthma that flares up during high ozone days, particularly in hot weather. Experiencing wheezing, nosebleeds and shortness of breath, Keels must take leave from work for up to 30 days a year. Fortunately, Keels has a sympathetic supervisor who also has asthma.
The plethora of drugs Keels takes to fight asthma make her constantly tired and cause her hands to shake. Over a three year period, they weakened her immune system and led to multiple hospitalizations for pneumonia until her doctor figured out what was happening and changed her prescription. Yet Keels remains unable to live a normal life and pays onerous medical bills. She was therefore distraught when Governor Hogan announced he was blocking the new clean-air regulation.
The regulation had been put together after a year-long process of community meetings and discussion under the previous administration of Governor Martin O’Malley, who had already signed it. Hogan intervened after the bill had been submitted to the Maryland Register but before it had actually been published.
“I’m not aware of another governor who yanked a similar adopted regulation,” explains Michael Soules, Earthjustice’s lead counsel on the case. Questioning the legality of Hogan’s action, and because Maryland is already behind in regulating NOx under the Clean Air Act, the Sierra Club, represented by Earthjustice, along with Chesapeake Physicians for Social Responsibility, filed suit. (Full disclosure: I served on the Executive Committee of the Montgomery County, Maryland Sierra Club from 2009 to 2014.)
Maryland faces serious problems with NOx emissions. Much of the state has received an F grade from the American Lung Association for failing to limit this pollutant, which is particularly virulent on hot days. NOx is a primary cause of asthma and other respiratory ailments. Asthma is epidemic in parts of Maryland, particularly Baltimore, which “has uniquely bad air within the eastern U.S.,” says Soules.
In April, the Maryland Department of Health (MDE) did put into effect an emergency regulation that replaces the previous one. “We are absolutely committed to winning the battle on smog and doing it in the smartest and fairest way possible,” explains Ben Grumbles, Secretary of the MDE. “We have a very clear plan: enforcing the brand new regulation for 2015, issuing in the coming months strong and protective regulations for 2016 and beyond and leveraging significant progress in upwind states that put Maryland at risk.”
However, the emergency regulation expires on October 26. Hearings are ongoing regarding an extension. “The terms of the emergency action and proposed permanent regulation are identical to those contained in the prior proposal for immediate requirements,” explains Jason Apperson of the MDE. Furthermore, “MDE is also working with all stakeholders to determine the best approach to provide greater public health protections longer term, by 2020, while also providing flexibility to support a health economy and protect jobs.”
Yet, beyond its uncertain status, there is one key difference between the emergency regulation and the abandoned one. The emergency regulation does not require Maryland coal plants to install the latest pollution-control equipment, which is lacking in over half of the state’s plants. The current regulations “are designed to ensure that coal-fired power plants are optimizing current pollution controls to minimize emissions, but they do not get into any requirements for installing additional controls on additional plants,” says Apperson.
The expense of installing such equipment was a key point of contention in earlier negotiations. One major energy company, Raven, eventually agreed with a weakened version of the regulation. Yet the energy giant NRG continued to resist. The total cost would have run to nearly $18 million per year for NRG over a ten year period and $28 million a year for Raven, according to an MDE document. However, this must be measured against the health and welfare costs of living with dirty air—costs which the energy companies do not bear.
The case exemplifies the patchwork nature of EPA regulations, which depend on states to implement them. However, states are “often delaying and avoiding pollution control measures,” particularly without a strong EPA, says David Baron, Managing Attorney for Earthjustice. This mixed enforcement record has led Earthjustice to file multiple suits against states, and against the U.S. Environmental Protection Agency, for failing to fully implement the Clean Air Act. Regulating NOx “has been a weakspot at EPA under both Democratic and Republican administrations,” says Baron.
Even if the current EPA standards were implemented, they might still be insufficient. The American Medical Association and the American Thoracic Society are two of a number of organizations that “all say the current ozone stand is too weak to protect people with asthma, kids, and senior citizens,” according to Baron.
The health impacts are severe. “Ozone is linked to asthma attacks, increased hospitalization and emergency room visits, and early deaths due to cardiovascular causes,” Baron explains. There is “now compelling scientific evidence that ozone reduces lung capacity and the ability to breath,” a problem that is “more severe in kids because they have smaller lungs.”
Such effects can occur when ozone levels are as low as 60 parts-per-billion; the current standard is 75. Baltimore has hit levels as high as 85 in recent years, albeit briefly. Although the state overall just barely met legal standards in 2013 and 2014, an MDE document warns that “during summers with warmer temperatures when the weather is more conducive to ozone formation, Maryland will likely not be able to maintain compliance with the ozone standard.”
Ozone is particularly acute in African American neighborhoods, including those that recently made national news for riots following the police killing of a local youth and several days of peaceful protests. African American neighborhoods are often located near other sources of pollution such as incinerators and landfills. Keels knows of one east Baltimore neighborhood stricken with asthma, particularly among children and the elderly. The residents suspect a local incinerator of being the prime culprit, but lack the evidence to pursue it.
Nationally, African American neighborhoods “are exposed to more air pollution” explains Keith Rushing, press secretary for Earthjustice, including 38% more NO2, which contributes to asthma heart disease. Currently, 16% of African American children suffer from asthma versus 8.2% of white children according to the Asthma and Allergy Foundation of America. Black children are three times as likely to be hospitalized and to die from asthma. It’s no surprise, then, that Keels’ doctor reports that the majority of his cases are for asthma, heart disease, and other diseases related to air pollution.
The problem is getting worse. From 2000 to 2009 asthma rates for African Americans increased 50% says Rushing, largely due to climate change and more pollen in the air. Yet it remains up to states and localities to enforce key provisions of the Clean Air Act.
If insufficient ozone regulations hit Baltimore particularly hard, the Hogan administration has also spurred criticism for canceling the Red Line, a light-rail project to underserved parts of the city. Besides the economic impact on vulnerable neighborhoods, electric trains would generate far less pollution than cars, which are a major source of ozone-inducing pollutants. “It’s certainly true that improved public transportation is an important strategy for combating air pollution” says Baron.
Ozone is an environmental hazard in other ways, corroding tree leaves and stunting their growth. It enhances the impact of climate change by increasing local heat. And if climate change increases the number of severely hot days, those days will be even more dangerous due to the presence of ozone.
With more asthma risk than ever, people like Christine Keels may find that their suffering only gets worse. Already, her life is difficult enough. Most of the time she is trapped indoors. She has to greatly limit the gardening she loves. When she travels, she needs to be sure she remains near a hospital in case of emergency. Everything she does “has to be thought through,” she says: “vacations, concerts, how close to an exit to sit, whether it’s a safe day to go outside.”
Keels never had asthma or allergies when she was growing up in Memphis or attending college in Boston. However, her job is keeping her in Baltimore. As soon as she retires, she plans to move far away, to someplace green with clean, fresh air.