Pollution in the Water, Lawsuits in the Air

But New York Attorney General Eliot L. Spitzer, who has sued EPA over its aquatic species policy as well as air pollution rules, said the flurry of legal activity reflects "the lack of enforcement" by the administration.

"It's more than a trend, it's an ideological decision that's been made by the Bush administration," Spitzer said. "Into that void we have stepped in to enforce the law."

In many cases, state lawyers say out-of-state pollution jeopardizes their tourist industry. Kentucky Assistant Attorney General Scott Porter, for example, argues that Virginia's proposal to let Consolidation Coal Co. release water from its mining operations could damage Fishtrap Lake, a reservoir filled with bass and catfish that attracts tens of thousands of visitors a year.

Porter's office is weighing whether to sue Virginia. "We will take every available method we have to protect the waters of Kentucky."

Leslie Vincent, chief engineer of Virginia's Division of Mined Land Reclamation, said Virginia is aware of Kentucky's concerns but believes the plan's requirement for mixing the discharge with cleaner water should keep levels of harmful chloride to an acceptable level. "It should not be an adverse impact," Vincent said.

In Arkansas, poultry farmers see the Oklahoma lawsuit as a threat to their livelihoods. Keith Morgan, who raises 178,000 chickens at a time for Arkansas-based Peterson Farms, said he and other producers make a profit selling their waste as fertilizer and cannot afford to truck it out of the million-acre watershed.

No one questions that Tenkiller Ferry Lake and the Illinois River -- which travelers in 1870 described as "one of the prettiest rivers on the continent, sparkling with crystal waters" -- are being flooded with nutrients. The lake and river remain a popular tourist site that generates at least $42 million a year in revenue: Last week, Adam Visor and his friend Jordan Hebert drove three hours from Oklahoma City to fish for smallmouth bass along the river's banks.

Edmondson and allies such as Brocksmith say a significant amount of the pollution comes from the 200,000 tons of chicken litter -- waste and shavings that fill poultry houses stretching the length of nearly two football fields -- that more than 2,800 farmers in Arkansas and Oklahoma buy and apply to their crops.

Poultry officials counter that western Arkansas towns such as Bentonville and Fayetteville are also to blame for the river's pollution, since they rank among the fastest-growing in the nation and generate their own runoff. John Elrod, a partner at the Arkansas firm of Conner and Winters, who represents Simmons Foods, said the industry is willing to help Oklahoma but will not fold under legal pressure.

"Our attitude all along has been if you need someone to help with this problem, we're going to be standing at the front of the line, but if you're going to file a lawsuit against us, it's going to be an all-day affair," Elrod said.

Oklahoma's lawsuit could drag on for years. The outside lawyers that Edmondson retained stand to get a third of any eventual settlement or court award, along with attorney's fees; the defendants have hired a phalanx of attorneys from the District, as well as Arkansas and Oklahoma.

The public relations fight is equally intense. An advocacy group called "Save The Illinois River" has printed baseball caps and tie-dyed T-shirts with the slogan, "Fed Up With All The Arkansas Chicken Poop!" and plans to release a CD of songs paying homage to the river. The poultry industry has responded in Oklahoma with a massive television and radio ad campaign touting the virtues of "organic" chicken litter, and it recently donated $1 million to the state's Scenic Rivers Commission to improve recreational facilities.

"Oklahoma should be saying thank you to Arkansas for providing this kind of income to one of the poorest areas in the nation," said Bev Saunders, who raises chickens on her 540-acre Oklahoma farm.

But Edmondson -- who does not blame the administration but faults Congress for failing to pass a broader law regulating poultry waste -- is pressing ahead.

Some have succeeded with such litigation. In Texas, Waco officials sued after city drinking water became polluted by more than a dozen out-of-town dairy farms dumping waste into the North Bosque River. Eventually, Waco reached a series of settlements, including an agreement to monitor the river's water quality for two years and a pledge by the dairies to make sure any new cows they acquire will not worsen the area's water pollution.

Spitzer has scored some legal victories over the Bush administration, but he acknowledged there are limits to pursuing environmental goals through litigation.

"Long term, states cannot supplant the role of the federal government in addressing these issues," he said.