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Adventures in Breathing

The first day of summer in 2002 was another smog alert day in Northern Virginia. That meant Jim Drake (not his real name) would once again have to tell his 9-year old son, Josh (or his), not to play outside. Like 50,000 other kids in the Washington, DC, area, Josh has asthma, and it's not safe for him to be active outdoors when smog levels are high:  The dirty air could trigger an asthma attack that might send him to the hospital. There would be thirty more such days before the summer ended.


Under the Clean Air Act, the U.S. Environmental Protection Agency was supposed to have prevented all this. The law required EPA to make sure that adequate pollution controls were in place to meet clean air standards by 1999. But instead of meeting the deadline, EPA extended it to 2005 without requiring stronger anti-smog measures.


Along with many others in the Washington area, Jim Drake is a member of the Sierra Club, and even before the summer of 2002, the club was fed up with EPA's dithering. So club activists came to Earthjustice's Washington, DC, office to ask what could be done. We told them that EPA's delays were flatly illegal, and that we could sue to try to force action. And we did sue.


The case ended up before a three judge panel of the U.S. Court of Appeals for the District of Columbia. We submitted an affidavit from Jim Drake about Josh, and from others who suffered from the dirty air. We explained to the judges that Congress had put strict deadlines in the law to protect people's health, and that EPA had no power to extend them. When the EPA lawyer got up and asked the judges to rule that the deadline extension was perfectly OK, Judge Edwards -- the most senior judge on the panel -- cut him off. "You need to think some more about the kind of the opinion you're asking us to issue, counselor,"  he said. "I would not sign such an opinion."   As EPA officials in the audience looked on, the judges proceeded to chastise them for ignoring the law. A few months later, the court issued a unanimous decision throwing out the deadline extension.


That, however, was not the end of the story. Earthjustice had to fight off repeated efforts by EPA and others to overturn the court decision. EPA continued to drag its feet on dirty air in the DC area, saying we should accept promises from state and local officials that they would deal with the problem later. We had to go back to court three more times. The issue finally landed in front of U.S. District Judge James Robertson, a jurist not known for beating around the bush. After listening to the EPA lawyer argue that the court didn't need to get involved because EPA could be counted on to do the right thing, Judge Robertson peered down at her and asked  whether she could promise him that EPA would finish the job on this by May 4. The lawyer hemmed and hawed, and finally said that, well, no she couldn't promise that because you never know what might come up in government. The Judge nodded and said:  "That's why I'm going to have to order EPA to meet that deadline."  And he did.


As a result of all this, the Washington area now has some of the toughest anti-smog measures in the nation. We still have a long way to go for clean air, but there are now a lot more summer days when Josh can play outside.