AZ Republican wants AG to sue other states and countries over air pollution

By Howard Fischer
Capitol Media Services
PHOENIX -- The way Sen. Frank Carroll sees it, some share of the pollution in Arizona is due to emissions from other states and even other countries.
So the Sun City West Republican wants to empower Attorney General Kris Mayes to sue any person from any other state or country whose emissions damage the air quality here.
Carroll contends the evidence is clear.
Exhibit No. 1, he said, is that during COVID the state was pretty much shut down, with traffic at a minimum. Yet he said air quality monitors showed no real decline in ozone levels.
And while some of it, Carroll said, may be coming from our West Coast neighbors, he said the real culprits appear to be Mexico and China.
But lawsuits appear to be just part of what is in SB 1128 which awaits a vote by the full Senate
Carroll also wants to direct the state Department of Environmental Quality, which crafts the implementation plans to bring Arizona into compliance, to now start considering the "best interests of the taxpayer'' as well as what are called "transportation emissions that originate outside of this state.''
That provision concerned Sen. Priya Sundareshan, D-Tucson, who said the legislation seems to be looking for an excuse for why air quality in many part of the state fails to meet standards.
"We can't just be talking about who else is to blame,'' she said when the measure was approved last week on a party-line vote by the Senate Committee on Natural Resources.
And Sen. Theresa Hatathlie, D-Tuba City, said Arizona has a record of creating environmental issues and then not dealing with them, like the mining of uranium, lithium and hydrogen. Her own father, she said, died of cancer from uranium poisoning.
"We're so eager to point fingers elsewhere when there's three fingers pointing right back to this government and this state,'' Hatathlie said.
And there's something else.
Sandy Bahr, president of the Grand Canyon Chapter of the Sierra Club pointed out that Arizona has its own sources of pollution that may drift elsewhere. She said this measure could start a legal war of sorts, opening the door to other states filing suit against individuals and corporations here.
Carroll, however, said it's important the state recognize that the air quality problems here are not all homemade -- and the burden of dealing with them should not fall entirely on the state.
"Those emissions are moving on the air streams that pass over Arizona,'' he said. "It's in record,'' Carroll said, saying there are figures from the U.S. Chamber of Commerce about ozone and particulate matter coming into this country.
He said it's not just an Arizona problem, saying areas around the Great Lakes are affected by Canadian sources.
"And, believe it or not, the Southeast experiences particulate drift that comes in from the African continent,'' Carroll said.
What makes all that an issue, he said, is the federal government makes Arizona and each state responsible for taking actions within their own borders to reduce pollution, even if the sources are elsewhere. Carroll claims that the figure is as high as 70% to 80%, "yet we're held 100% responsible.''
"The people here in Arizona are suffering financially and affecting our growth because we're forced to deal with something that we've got no control over,'' he said. That, said Carroll, includes everything from penalties for violating the standards in the Federal Clean Air Act to health care costs, often picked up by employers.
Greg Blackie, lobbyist for the Arizona Free Enterprise Club, said that's potentially just the beginning. He said the Maricopa Association of Governments, which is responsible for regional planning, came up with a series of options several years ago to reduce pollution. Blackie said these ranged from banning gasoline-powered cars and even gas-powered lawn mowers "that are not in the best interest of the taxpayers or residents.''
But Blackie said his organization believes the part of the bill empowering Mayes to sue out-of-state and out-of-country polluters is a bad idea.
Instead, he told lawmakers at the hearing that Arizona should be working with other states. And the target, said Blackie would be the federal Environmental Protection Agency.
"The EPA has created the problem,'' he said, not allowing states to exclude interstate pollution when determining if they comply with the Clean Air Act.
Krista Osterberg, a lobbyist with DEQ, said there already are provisions in the federal law that allow states to account for pollution that originates from other countries. But she said it's not that simple.
"You need to be able to demonstrate specifically that the area would be in attainment if not for the international transport,'' Osterberg said. She said it would be a "challenge'' for the state to prove that any air quality violations here would not have occurred had there been no pollution from China, Mexico or other countries.
And there's a more practical question: Who, exactly, would the attorney general sue if she believes that Arizona is being affected by the emissions of another country?
Carroll acknowledged that part of the legislation may need work. He said it might be more preferable for Arizona to join with other states to force the EPA, with its federal reach, to take action against a foreign nation.
"The idea is to get all the states together,'' Carroll said.
And there's another potential issue with the bill, unrelated to the right of the attorney general to sue. It requires DEQ, when crafting the plan for the state to comply with air quality standards, to consider "the effects of solar radiation and any associated heat increases.''
But Osterberg pointed out the Legislature enacted a law in 2008 specifically forbidding any state agency from adopting or regulating "greenhouse gases.'' And that, she said, could create a legal obstacle to DEQ trying to determine how much these gases affect Arizona's ability to comply with air quality standards.
The measure now awaits action by the full Senate.
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