Sparring continues over Va. air quality control bills

Environmentalists have described it as "the Virginia dirty air bill" - a measure that would limit the authority of the State Air Pollution Board and could increase smog problems in Hampton Roads, Richmond and other regions. Supporters say the legislation would help energy companies comply with strict clean-air laws, which are expected to get stricter under the Obama administration, and also keep electricity rates in check statewide.

"This is a good bill, a very reasonable bill, which the governor should sign," said state Sen. Ryan T. McDougle, R-Mechanicsville, chief sponsor of the legislation in the Senate.

"This is a bad bill, pure and simple," said Cale Jaffe, a senior attorney with the Southern Environmental Law Center in Charlottesville. "It confuses an already complex situation and leads us in the wrong direction."

Jaffe and colleagues from five other state environmental groups have asked Gov. Bob McDonnell to veto the legislation, contained in two companion bills (SB128 and HB1300).

They sent their request in a letter to the governor last week. No action has been taken on the bills, though McDonnell's office said Monday that the Republican governor supported both bills during legislative debate.

What is clear about the bills is that they expose the tangled mess that today envelops national air-pollution programs and how this uncertainty is giving states and industries fits in figuring out a path toward compliance.

Consider the Clean Air Interstate Rule, better known as CAIR, a federal program launched under the Bush

administration. It was intended to manage air pollutants that cause smog - nitrogen oxide and sulfur dioxide, which originate from cars, trucks, power plants, factories, paints, solvents, dry cleaners and other sources.

Using CAIR as a model, Virginia and other states passed regulations to cap smog-related emissions but also allow companies to buy, sell and trade pollution credits among other energy businesses across the country.

This means a company struggling to comply in Virginia could purchase credits from a utility that is under its limits in any other state.

However, Virginia saw fit to check its market-based system. It empowered the State Air Pollution Control Board to block trading - if the trading was occurring in a smog-troubled region, such as Northern Virginia or Hampton Roads, and if the board wanted the company to fix its power plant instead.

This authority is at the heart of the bills pending before the governor.

The bills would bar the board from blocking trading in all areas of the state except Northern Virginia, where smog is especially excessive. McDougle, the sponsoring senator, said Virginia is one of the only states in the country that blocks trading.

But the story does not end there. CAIR was challenged in court and, in July 2008, was struck down by the U.S. Court of Appeals in Washington, D.C.

So, today, CAIR and all the state regulations related to it are in limbo.

Also, Hampton Roads has been a region in and out of compliance with the national smog standard for years. It was poised to be recast as a violator last year by the U.S. Environmental Protection Agency.

Now, the Obama administration wants to toughen the smog standard, to better protect the public from health consequences of breathing smoggy air. It has put those regional reclassifications on hold, leaving Hampton Roads technically in compliance but on its way out.

Jaffe, the environmental attorney, says that it would be silly to add a new state law to the mix when the overriding federal rules are being sorted out still.

"There's a lot of balls in the air right now, for sure," said Bill Hayden, a spokesman for the Virginia Department of Environmental Quality. "It's a weird time in the air-quality world right now."

Scott Harper, (757) 446-2340, scott.harper@pilotonline.com