Every week it seems there is news of a group of states, Maine often among them, suing the Environmental Protection Agency. The suit filed most recently was to block changes in clean air rules known as “new source review” that will allow plants to make major upgrades without installing new emissions controls. As the numerous lawsuits filed in recent years involving Clean Air Act rules and violations of them are wending their way through the courts, the situation is actually getting worse.

The rules changes, which are to go into effect on Dec. 26, will allow old highly polluting power plants and factories to stay in operation long after lawmakers assumed they’d shut down, spewing millions of tons of pollutants into the air. Despite the easing of Clean Air Act regulations, it was assumed that the EPA would continue to pursue on-going cases against companies and plants that have long been in violation of the law. However, EPA officials announced that they would drop enforcement actions in scores of cases involving violations of the existing new source review rules. The decision to judge all outstanding cases based on the new rules seemed to come as a surprise to EPA enforcement personnel, who until recently maintained enforcement actions already under way would proceed with plants under the old, tougher standards. It likely also came as a surprise to members of Congress because EPA air policy chief Jeffrey Holmstead told two congressional committees in July 2002 that the rule changes would not have a “negative impact” on existing enforcement cases.

News accounts of the states’ lawsuits and the EPA about-face on enforcement raise public awareness of the problems, such as the drift of mercury and other pollution from aged coal-fired power plants in the Midwest and South. And, the cases have spurred members of Congress, especially Maine’s delegation, to decry the weakening of EPA regulations and to call for stepped-up enforcement of existing rules. So, far this hasn’t produced results.

There must be a better way for the EPA and clean-air advocates to tighten air-quality regulations without resorting to lawsuits or waiting for congressional action. New York Sen. Charles Schumer, a Democrat, has asked the EPA’s inspector general to investigate whether the agency overstepped its authority in making the rule change. Such a review, in theory, is a good idea, but in this case, it isn’t likely to turn up much or to spur changes. The Senate Governmental Affairs Committee, which is chaired by Sen. Susan Collins, could also ask for reviews of rule-change impacts. The committee could also review recent actions to ensure that they are based on good science.

Given the failure of federal action, the states are forced to take action through lawsuits. This is an expensive, time-consuming process that produces only marginal results. The EPA has an opportunity in this problem: It can identify a better, nonconfrontational way of listening to opponents of its proposed changes. And it can be scrupulous about releasing data about the effects of its proposals, thereby building trust.

States should not have to sue the EPA to get its attention. The agency has an opportunity to provide them with better choices.