On February 3, in Columbus, Ohio, your right to breathe clean air went on trial. The legal question was narrowwhether FirstEnergy Corporation had illegally failed to install modern pollution controls when it rebuilt its Sammis power plant in the mid-1980s. The broader issue, however, is the essential environmental-policy question facing the American people: Now that weve solved the technological problems, are we going to finish the job of protecting all of Americas air, water, and land? Or are we going to stop short and accept the permanent environmental degradation of our nation?
Days before the Sammis trial opened, President Bush delivered an inclusive State of the Union message. He endorsed "affordable health care for all Americans" and protection against terrorism for "all our citizens." Our fundamental environmental laws contain a similar promise: that all Americans will get the same deal, that life will become healthier for everyone. Under the Clean Air Act, passed in 1970, every new industrial facility has to be equipped with modern pollution-control technology. Older plants are allowed to delay cleanup until they expand and increase emissions, a dispensation that many, like Sammis, have tried to turn into a permanent loophole.
Likewise, the 1972 Clean Water Act promised that all of our lakes, rivers, and streams would be fishable and swimmable. At the time it passed, about two-thirds were not; since then we have cleaned up one third, and have another third left to go. (When I grew up in suburban Washington, D.C., if you fell into the Potomac River, you needed a tetanus shot. Today if you fall in at the same spot, you might startle a beaver.)
Despite his inclusive rhetoric, the upshot of President Bushs environmental proposals is that only some Americans get clean air, clean water, and safe communities. His administration is rewriting the regulations that Sammis violated, so that in the future old power plants would never have to cut their pollution. Bush has also refused to renew the tax on toxic-waste polluters, the main funding source for the cleanup of abandoned Superfund sitestough luck for those living nearby. The Bush budget slashes funding for clean-water programs, effectively placing the burden of enforcement on legal action brought by groups like the Sierra Club. (If some of Bushs extremist judicial nominees get their way, though, the Club would be limited in its ability to file suit on behalf of its members in many cases.) The administration has also proposed removing federal protection from 60 percent of the nations wetlands, for no reason other than that they lie within individual states and are not connected to interstate waterways. The White House is eager to stand up for preserving "one nation, under God" in the Pledge of Allegiance, but in the field of environmental regulation, "one nation" is getting short shrift.
If the federal government is no longer going to guarantee equal environmental protection, how will protection be provided? The Bush administration proposes leaving environmental decisions to the market and to individual states. (Unless, of course, states want to improve protectionwitness the administrations opposition to Californias attempts to regulate greenhouse-gas emissions from cars and SUVs.) Under Bushs "Clear Skies" proposal, for example, a power plant in Wisconsin that cleans up can sell its foregone pollution to a plant in Mississippi, which can become dirtier. The marketplace works its magic, and more Mississippians die.
The Bush administration is trying to sell its policy of unequal environmental protection by getting us to ask the wrong questions: "How much arsenic can we tolerate?" instead of "Why should we have arsenic in our water at all?" "How many power plants should remain antiquated?" instead of "Why should any power plants pollute?"
Debating environmental protection on Bushs terms is obviously a losing proposition. Instead, we need to remind our friends and neighbors that the principle of basic rights for all was decided 135 years ago with the 14th Amendment. We wrote the concept of equal protection into the Constitution; 30 years ago we added to our concept of basic rights a healthy environment. We decided that this country had the technology, the know-how, the pride, and the compassion to insist that all the air and all the water in every community be safe.
Now the Bush administration is going back to the past, arguing for states rights all over again, and using them to justify environmental inequality. Secretary of the Interior Norton got herself trouble in 1996 by suggesting that the wrong side had won the Civil Warthat the Confederacy had a good cause, but "bad facts." She spent a lot of time explaining that she really hadnt meant to defend slavery, only states rights. But the version of states rights she and the Bush administration champion is one that would make decent environmental quality a privilege of the fortunate, not a right of every American. If we fall into the trap of accepting the premise of separate but unequal environmental rights, we will spend the next decades in despairing debate about how far back into the past we want to slide. The alternative is to decide that its time to roll up our sleeves and finish the job we started 140 years ago with the Civil War, and 30 years ago with Earth Day.