Air pollution problems are not new, nor are they new to this column. The traditional method of addressing air pollution has been through the control of pollutants that have been released into the atmosphere.

Many people think that it is illegal to release pollutants into the environment. But, actually this is not true at all. So long as companies release pollutants at levels that are specified in their permits, there is nothing at all wrong or illegal with what they are doing. It's perfectly allowable.

In the past decade, a new approach to air pollution control has emerged both at the federal and state levels, as well as internationally. This new approach is called "air pollution emissions trading." Essentially, companies that do an exceptional job at meeting their air pollution prevention goals are able to capitalize on their success by selling air pollution credits to less successful companies. Since these programs require that a certain amount of credits be permanently retired following a transaction, the goal is to ultimately reduce overall pollution levels.

Remember that our national focus on air pollution has really been strong for only the past 30 years. Many plants in this country are much older than this and claim they cannot cost effectively meet stringent contemporary requirements. For these kinds of companies, the ability to purchase emissions trading credits may be part of their salvation. It is in essence the ability to pay to pollute.

Pollution emissions trading it is a 1990s approach to this problem. According to a recent report released by the Price Waterhouse Coopers Endowment, emissions trading programs are a valuable tool in regulating and controlling air pollution. The report was released in October of this year and is entitled " New Tools for Improving Government Regulation: An Assessment of Emissions Trading and Other Market Based Regulatory Tools."

However, the report suggests that while emissions trading programs have been successful, they are not the entire solution by any stretch of the imagination. One possible problem referenced by the report is that emissions trading may result in a scenario where disproportionate numbers of polluting companies remain located in low income neighborhoods. In addition, the report suggests that emissions trading programs may weaken regulatory arguments and agendas aimed at reducing toxic releases, rather than re-distributing them.

Companies are now emerging that assist companies in selling or trading their emission credits. Still other companies are selling advisory services to governmental entities that wish to establish trading programs.

One company, called the RTCE Exchange is located in Seal Beach, California. RTCE has created a stock market of sorts for the selling and trading of various environmental credits. This credit Wall Street of sorts was created in 1994 in response to a regional emissions trading program called the Regional Clean Air Incentive Market, or "RECLAIM." In much the same manner as a stock broker, this company earns a commission with each credit trade.

New Jersey has had its own emissions trading program for several years and has found the program to be successful. This is of significant importance to New Jersey since certain portions of the State are considered by the EPA to be in non-attainment. This means that those portions of New Jersey do not satisfy federal Clean Air levels.

Canada's PERT Program, which stands for Pilot Emissions Reduction Trading Project, is doing much the same thing in the Windsor-Quebec area. PERT consists of members of industry and government as well as environmental and health groups. Since international agreements have been reached concerning Ozone depleting gasses, international exchanges are likely to follow suit.

Emissions trading programs are all the rage, so I suspect we should get used to the notion that some in society may pay to continue to pollute. What cannot be allowed to happen is a system where wealthy communities become smog free and poorer areas become smog hosts. For all lungs are created equal, regardless of financial wherewithal.

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Published: December 2, 1999

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Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.