Acid rain and the Adirondacks: a legislative history.

AuthorMelewski, Bernard C.
  1. THE ADIRONDACK PARK

    The Adirondack Park contains six-million acres--more than twice the size of Yellowstone National Park--and is larger than the entire neighboring state of Massachusetts. (1) Private citizens own about half of the land in the Adirondack Park, which is used primarily for agriculture, forestry, and recreation. (2) The Park is home to 130,000 permanent and 210,000 seasonal residents, and hosts an estimated eight to ten million visitors annually. (3)

    The remaining forty-eight percent of the land in the Adirondack Park is publicly owned forest preserve, protected by the State Constitution since 1895 to be "forever kept wild." (4) One-million acres of this public land, comprising one-sixth of the entire park, are designated as wilderness.

    Many of the abundant plant species and wildlife found in the Adirondack Park are unique to the region. Uncut ancient forests cover tens of thousands of acres of public land. Located in the northeast section of the Park is the High Peaks--forty-three of them above 4,000 feet--with eleven alpine summits that rise above the timberline.

    The Adirondacks include the headwaters of five major drainage basins: Lake Champlain and the Hudson, Black, Saint Lawrence and Mohawk Rivers. Within the park are approximately 2,800 lakes and ponds, more than 1,200 miles of rivers, and approximately 30,000 miles of brooks and streams. (5)

  2. ACID RAIN AND THE FIGHT TO SAVE THE PARK

    The fight to save the Adirondack Park from the scourge of acid rain is in its third decade. This article traces the legislative history of the fight from its inception to the adoption of the first law in the nation to address the impact of acid rain. It is a story of determination by New York State residents and their elected officials, both at the state and federal levels.

    Acid rain is a byproduct of the combustion of coal and other fossil fuels. Many gases, such as sulfur-dioxide and nitrogen-oxides, are emitted into the air and may be carried hundreds of miles by air currents. These gases are then transformed into acidic compounds that are returned to earth. When the compounds are delivered in precipitation such as rain or snow, the process is called wet deposition. When the compounds are delivered as gases, aerosols, or particles, the process is called dry deposition. In high-elevation and coastal areas, they may be delivered as cloud or fog water, called cloud deposition. (6)

    The deposition of sulfur-dioxide and nitrogen-oxides is acidic in nature. Through various means, acid deposition can be harmful to human health, ecosystems, and material and cultural resources. For example, "[a]cidic surface waters decrease the survivability of animal life in lakes and streams and in the more severe instances eliminate some or all types of fish and other organisms." (7) Acid deposition inhibits tree growth and "increase[s] their susceptibility to winter injury, insect infestation, and drought." (8) This leads to forest degradation, leaching, and the depletion of nutrients from the forest soil. (9)

    The Adirondack Park is suffering the worst acid rain damage in the nation. (10) It has been determined that "[m]ore than 500 lakes and ponds (out of 2,800) in the Adirondack Park are already too acidic to support the plants and aquatic wildlife that once existed in them." (11) Episodic acidification, most of which occurs from melting snow in the spring, could not happen at a worse time because many of the plants, animals, and insects are most vulnerable at the beginning of the growing season. Additionally, on the western-facing slopes of the Park's high peaks, red spruce forests are stunted and are rapidly deteriorating. (12) High elevation forests are extremely susceptible to heightened levels of polluted precipitation originating from the coal-fired smokestacks of the Ohio River Valley and beyond. (13) Every day, pollution lingers in the "clouds that shroud the mountains in a caustic fog." (14)

    Amid mounting evidence of the horrible toll that acid rain continues to take on the waters and forests of the Adirondacks, the need to protect the park has been the catalyst for action by New York residents and policymakers for decades.

    New York residents have been actively involved in the fight to stop acid rain by working to change and enforce government regulations. Residents have written letters, published reports, formed coalitions, testified at hearings, and walked the halls of Congress. (15) Yet, regardless of these efforts, nearly twenty years after New York State passed the first acid rain law in the nation, and ten years after the passage of comprehensive federal legislation, various sources report that the unique aquatic and terrestrial resources of this magnificent park will be devastated. (16)

  3. THE END BECOMES THE BEGINNING

    When President George H.W. Bush signed into law the Clean Air Act Amendments of 1990, (17) there was great hope that it would resolve the well-documented problems of acid rain in the northeast. (18) Not only had Congress enacted aggressive limits on power plant emissions that contribute to acid rain, but they also adopted an innovative market-based mechanism called "cap and trade" that promised to bring flexibility and lower costs of compliance. (19) The new pollution allowance trading program expanded existing acid rain controls and also proposed a new program to reduce nitrogen-oxides. (20)

    Pollution allowances, providing the right to emit one ton of sulfur-dioxide emissions, were distributed to utilities across the country. (21) Each polluting unit or smokestack would be given a target for its emissions. Operators were required to annually square up their actual emissions with the number of allowances that they were allocated. Power plant operators who exceeded their target for emissions were required to acquire allowances from other sources. To stimulate the market in the trade and sale of allowances, the Environmental Protection Agency (EPA) was to conduct an annual auction of allowances at the Chicago Board of Trade. (22) Anyone could hold, buy, or sell allowances, which could be traded as any other commodity.

    The aggregate number of allowances available each year was fixed, or capped, thereby forcing a reduction in overall emissions. Allowances in one year could be saved and carried over for use in later years. (23) The EPA was required to track all emission allocations and collect from each regulated facility's account enough allowances to cover their emissions from the prior year. (24)

    There was hope that the new law would be adopted in an era of some degree of scientific certainty about acid rain as to better formulate and implement necessary protections. Almost twenty years earlier, Senator Daniel Patrick Moynihan of New York established a consortium of federal agencies known as the National Acid Precipitation Assessment Program (NAPAP). (25) A report from NAPAP was expected to arrive in time to assist in negotiations leading to the passage of a bill. Growing impatience with the tardiness of the NAPAP report, combined with a growing consensus on the issue in Congress, caused legislators to move ahead without waiting for the report. (26)

    The Amendments called for two follow-up reports to Congress. (27) The first report, due in 1993, required the EPA to report "on the feasibility and effectiveness of an acid deposition standard ... to protect sensitive and critically sensitive aquatic and terrestrial resources." (28) The second report, to be produced by NAPAP, required a determination of what reductions in deposition rates would be necessary to prevent adverse ecological effects. (29) In addition, the NAPAP report was to include an assessment of the costs and benefits of the acid deposition control program. (30)

  4. NEW YORK--FIRST IN THE NATION

    While the adoption of a market-based program was unprecedented in the Federal government, this basic concept was already in place in New York State.

    In 1984, New York became the first state in the nation to adopt legislation designed to control emissions from smoke stacks that contribute to acid rain. (31) This legislation was in response to growing evidence that natural resource areas within the state, such as the Adirondack Park, Hudson Highlands, and the Catskill Mountains, were increasingly suffering severe damage from air pollution. A survey of the Adirondack Lakes from 1975 to 1982 showed that 19% of the 1,047 lakes tested were highly acidic and considered incapable of supporting aquatic life. (32) Although it has been a major environmental issue since the late 1970's, federal action to control sulfur and nitrogen emissions had been minimal. (33) The state determined that "in the absence of federal action ... [it was the intent of the legislature] to `safeguard ... public health and to protect [the State's] environment, economy, and infrastructure from irreparable damage from acid deposition.'" (34) It was the Legislature's intent to not only reduce New York's contribution to acid deposition, but also "to encourage federal controls on [acid] deposition." (35)

    The first legislation in the nation to reduce emissions from power plants in order to curb acid rain "required the reduction of sulfur-dioxide (S[0.sub.2]) emissions from existing levels and the reduction of nitrogen oxide (N[O.sub.x]) emissions from new sources." (36) A two-step program was suggested in order to achieve the S[O.sub.2] reductions. The first phase of reduction requirements became effective on January 1, 1988. (37) The Commissioner of the New York State Department of Environmental Conservation (DEC) was required to formulate the second phase and submit recommendations to the Governor and to the Legislature by January 1991. (38) However, this was only to be done in the absence of a controlling federal statute or program that the Commissioner deemed consistent with the intent of the state law. (39)

    Led by Assemblyman Maurice Hinchey and Senator John Dunne...

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