Is the Clean Air Act at a crossroads?

• Author: Oren, Craig N.
• Position: Symposium

1. INTRODUCTION II. A QUICK BRIEFING ON THE ACT III. THE ACT'S RECORD OF SUCCESS IV. IMPLEMENTING THE ACT: THE EXAMPLE OF OZONE V. GLOBAL WARMING AND THE CAA A. The Use of PSD B. The Ambient Air Quality Standard System 1. The Difficulties in Ambient Standards for GHGs 2. A Duty to Use the Ambient Air Quality System? a. A Serivener's Error? b. NRDC v. Train C. Technology-Based Standards Under [section][section] 111 and 112 1. New Source Performance Standards 2. GHGs as Hazardous Air Pollutants VI. CONCLUSION I. INTRODUCTION

   Is the Clean Air Act (CAA or the Act) (1) at a crossroads?

   The title of this symposium suggests that it is, but I am not convinced by our speakers that this is so. The current Act seems basically sound. The real question is whether the Obama Administration can carry through on its intention to implement the Act aggressively. If the plans of United States Environmental Protection Agency (EPA) Administrator Lisa Jackson and her subordinates work out, we will see a series of initiatives between now and the end of 2012 spanning much of the Act. (2) The reconsideration of the ozone standard we examined in our panel in April is just one of those planned measures. The reconsideration shows how difficult it can be to decide the level of air quality standards, but it does not counsel any fundamental change in the Act's direction.

   In this Article, I also discuss whether the Act is at a crossroads in regulating greenhouse gases (GHGs). I suggest--and this may surprise some readers--that it is not. The Act is unlikely to be the means to address global climate disruption because the Act's mechanisms do not fit the problem well. At most, the Act can contribute interstitially. I also assess the novel suggestion that a "scrivener's error" in the statute should be corrected in a way that imposes a duty for EPA to set air quality standards for GHGs.

2. A QUICK BRIEFING ON THE ACT (3)

   The cornerstone of the Act is its grant of power to EPA to establish national ambient air quality standards (NAAQS). (4) Each air quality standard limits the maximum permissible concentration of a pollutant in the outside air to which the public has access. (5) For instance, the present ozone standard says that there should be no more than 0.075 parts per million (ppm) of ozone per cubic meter of air in the air we breathe. (6)

   Ambient air quality standards are of two types: primary and secondary. (7) Primary standards must protect the public health with an adequate margin of safety; (8) secondary standards must protect the public welfare. (9) The United

   States Supreme Court has held that EPA may not consider costs in setting these standards. (10)

   The responsibility for attaining and maintaining these air quality standards is divided between the federal government and the states. (11) The federal government regulates emissions from new "mobile sources"--cars and other motor vehicles--as well as the content of motor vehicle fuels. (12) Many categories of stationary sources--for instance, electricity-generating plants--are subject to new source performance standards (NSPS). (13) Each standard sets limits on the emissions from new and modified sources in a specific category; the standard's stringency is based on the emission limit that can be achieved by these sources assuming use of the best demonstrated control system. (14) Costs are considered by EPA in setting these standards. (15)

   In addition, states must prepare and enforce state implementation plans (SIPs). (16) The plans may consider costs, subject to an important qualification: each SIP must demonstrate that areas of the state not in attainment of NAAQS (nonattainment areas) will achieve and maintain the primary air quality standards by the statutory deadlines--five years after the date of designation as nonattainment unless the EPA Administrator grants a five-year delay or unless a different date is specified in the statute. (17) So a state will determine its air quality, decide how much it has to limit emissions to meet and stay in compliance with the air quality standards, and impose emission controls on air pollution sources to do so. The state may, if it wishes, require steps that are not currently technologically feasible. (18) EPA decides whether the plan is satisfactory, and (along with the state and citizens) enforces the plan against violators. (19) If the plan is not satisfactory or is not being carried out by the state, EPA can promulgate a federal implementation plan, (20) or impose restrictions on highway funding or other sanctions. (21)

   The Act requires each SIP to include new source review (NSR) programs. (22) These impose requirements on new and modified stationary sources--electricity generating plants, refineries, factories or other facilities with a fixed location. (23) One program, often known as Nonattainment New Source Review (NNSR), regulates new and proposed sources that would contribute to nonattainment of the air quality standards. (24) The other, known as Prevention of Significant Deterioration (PSD), regulates sources that would not contribute to nonattainment, but would instead add new air pollution to presently clean areas. (25) These programs impose emission control requirements that must be at least as tough as the NSPS. (26)

   The Act also contains a cap-and-trade program intended to reduce pollutants that cause acid rain. (27) In this program, Congress imposed in 1990 a cap on sulfur dioxide emissions at about one-half of the then-existing levels. (28) EPA distributes annual allowances to sources based roughly on the same proportion of historic emissions. (29) Each allowance permits a source to emit a ton of sulfur dioxide, and the total number of allowances equal the cap. (30) Sources may then trade the allowances so that the reduction is accomplished in the most cost-effective way. (31) EPA has found that emissions from Eastern and Midwestern states contribute to the downwind formation of ozone, and has required the states involved to curb the transport across state lines of ozone and its precursors. (32) Finally, the Act contains a special provision aimed at curbing emissions from stationary sources of hazardous air pollutants--those that contribute to life-threatening disease or adverse environmental effects. (33)

3. THE ACT'S RECORD OF SUCCESS

   A symposium like ours inevitably focuses on the weaknesses of the Act and its implementation. So it is easy to overlook the basic point that the Act has been quite successful in reducing air pollution. True, it has not accomplished the utopian goals of the first Earth Day in 1970 or the CAA Amendments of the same year; (34) it did not clean the air by 1977, and the auto industry was not required to reduce new-car emissions by 90% by 1976. (35) But the Act's record has been impressive.

   Take, for instance, carbon monoxide, a pollutant that comes mainly from the tailpipes of gasoline-powered motor vehicles. (36) Carbon monoxide causes pain to persons with heart disease. (37) In 1970, the nation's total emissions of carbon monoxide were 204 million tons. (38) By 2008, that decreased to 77 million tons, a 62% reduction. (39) There is now only one area in the country--Las Vegas--that is classified by EPA as not attaining the current air quality standards for carbon monoxide, (40) and EPA is now proposing to designate that area as attainment. (41) This performance is especially telling considering that vehicle miles traveled have almost tripled nationally since 1970. (42)

   Clearly the program to control emissions from new cars has worked well, although, to be sure, not perfectly. Another program that worked was the effort to get lead, which causes learning deficits and decreased IQ in children, (43) out of gasoline. (44) Lead emissions dropped 99% from 1970 to 2005, (45) and only a few isolated areas remain in nonattainment of the air quality standards. (46)

   There have been successes--not as dramatic, to be sure--in controlling pollutants that come from stationary sources. The leading example is sulfur dioxide, which mostly comes from coal-burning electricity-generating units, and which causes distress to asthmatics and, indirectly, deposition of fine particles in the deepest portions of the lung. (47) Emissions dropped from 31 million tons in 1970 to 11 million tons in 2008, a diminution of close to two-thirds. (48) Over half of this reduction has come since 1990, when Congress established the cap-and-trade program described above that allows the market to determine which sources will undertake the required reduction. Concentrations of sulfur dioxide in the ambient air have decreased 59% since 1990. (49) Only nine areas were classified as in violation of the current air quality standards as of June, 2010; (50) and none of these areas may actually be exceeding the standards. (51) Finally, emissions of hazardous air pollutants-which come from a wide range of sources ranging from cars, service stations and industrial plants (52)--declined 40% between 1990, when the current program was enacted, and 2005. (53)

   These achievements are especially impressive considering that Gross Domestic Product has tripled in real terms since 1970, (54) and that the population of the United States has increased by about half. (55) And this reduction has been achieved at costs that are far below the best estimate of the benefits. EPA has estimated in a peer-reviewed report that the benefits of the Act from 1970 to 1990 were in the trillions of dollars--in the form of better health, better visibility, and ecological effects avoided--while costs were a small fraction of that. (56) A draft report by the agency suggests that, at a conservative estimate, the benefits of the Act since the 1990 Amendments have been four times higher than the costs. (57)

4. IMPLEMENTING THE ACT: THE EXAMPLE OF OZONE (58)

   But we cannot rest on our laurels. More progress is needed. The air pollutant ozone is a good example. Ozone is one of a...