Clearing the Arteries

• Author: Tim Profeta
• Position: Director of the Nicholas Institute for Environmental Policy Solutions at Duke University
• Pages: 27-27

SEPTEMBER/OCTOBER 2011 ❧ Page 27

Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Sept./Oct. 2011

anoTher view

created a transparent, top-down,

and f‌lexible regime to address

ground-level ozone in 20 states and

the District of Columbia.

Moreover, the agency’s authority

to f‌ind similar f‌lexibility to address

greenhouse gases under Section

111 of the act appears to be limited

only by politics, not the statute’s

language. Under that authority,

EPA could track the process of the

NOx program, creating a call for

coordinated state emission reduc-

tion programs that would provide

many of the benef‌its of centralized

legislation. And because the agency

devised the program under a simi-

lar process, it could be coordinated

with other pollutant abatement

programs.

e ability to use

the authority under

Section 111 is more

than a theory. Just this

month, Justice Ruth

Bader Ginsburg all but

endorsed the authority

as the agency’s means

of making an “in-

formed assessment of competing

interests,” including “the environ-

mental benef‌it potentially achiev-

able,” “our nation’s energy needs,”

and “the possibility of economic

disruption.” Clearly in the justice’s

mind, the transparent balancing of

interests is feasible for EPA.

None of this is to suggest that

the Clean Air Act is the perfect au-

thority for addressing our current

air pollution challenges. But our

political system is particularly para-

lyzed at this inopportune juncture,

making amendments unlikely.

Until we are able to return to con-

structive legislating, the statutory

arteries given to EPA may not be

quite as clogged as suggested.

Tim Profeta is the Director of the Nicholas

Institute for Environmental Policy Solutions

at Duke Universit y

There is no doubt that

there is room to criticize

the Clean Air Act. e

regulatory system would

benef‌it if Congress could

make transparent and direct value

judgments regarding the regula-

tory approach and the division of

burden. With regard to congressio-

nal action, the act of course would

benef‌it from a legislative tune-up.

Clear legal mandates from Con-

gress, without the need for statu-

tory interpretation and regulation,

would provide clarity to regulated

entities, allow investors to f‌inance

emissions reductions projects with

less litigation risk, and speed deliv-

ery of environmental benef‌its.

But hopes for legisla-

tion are likely frustrated

by the fact that the arter-

ies of Congress are even

more clogged than those

of EPA. Congress has

not amended a major

environmental statute

since 1990, which pre-

dates the rise of “Fight

Club Politics” with the Gingrich-

led House of 1995–96, and the

politics surrounding environmental

issues appear more and more polar-

ized every day. Most directly, wit-

ness the ef‌forts of Senators omas

Carper (D-DE) and Lamar Al-

exander (R-TN), two moderates

who have proposed legislation for

the past f‌ive Congresses that tracks

the Schoenbrod/Witte proposals.

Never has the Carper/Alexander

proposal made it to the f‌loor of the

Senate for a vote.

EPA’s f‌lexibility to address these

issues also is understated. For ex-

ample, the NOx trading program,

a program akin to the lauded stat-

ute-based SO2 trading regime, was

created through the much-criti-

cized National Ambient Air Quali-

ty Standards/State Implementation

Plan process. e NOx SIP Call

costs in setting NAAQS is a reason

for restructuring the Clean Air Act’s

treatment of conventional NAAQS

pollutants.

EPA, in the ANPR, argues that

“a NAAQS would trigger a rela-

tively rigid implementation appara-

tus, limiting the agency’s f‌lexibility

to target cost-ef‌fective emissions

reductions and to shift the burden

of control requirements among

dif‌ferent industries based on the

availability of new technological

approaches.”

EPA Administrator Russell E.

Train made essentially the same

argument against a NAAQS for

lead, claiming that regulating prin-

cipally through a national rule on

lead in gasoline would be more

ef‌f‌icient and administratively sim-

pler. Schoenbrod responded that

setting a NAAQS would not pre-

vent EPA from controlling lead in

gasoline through a single national

regulation; EPA could obviate the

need for fuel regulations in SIPs by

setting a national regulation suf‌f‌i-

cient to achieve the NAAQS. (e

Train-Schoenbrod argument is in

an exchange of f‌ive letters posted

at www.nyls.edu/faculty/faculty_

profiles/david_schoenbrod/train-

schoenbrod_correspondence.) is

counterargument was valid when

the Second Circuit interpreted the

Clean Air Act in 1976, but is not

valid now. Congress in its 1977 and

1990 amendments to the Clean Air

Act expanded the statutory require-

ments for SIPs from three pages to

79 pages. e new requirements in-

cluding “reasonably available con-

trols measures” for existing sources

make SIPs more rigid, complex, in-

ef‌f‌icient, and inef‌f‌icacious.

A 2004 National Research

Council study concludes that the ri-

gidity and procedural complexity of

the SIP process hobbles pollution-

control ef‌forts. “e process now

mandates extensive amounts of . . .

Tim Profeta

Clearing the Arteries