Congress Needs to Act, but to Act Carefully!

• Author: William Bumpers
• Position: Partner and head of the Global Climate Practice Group at Baker Botts L.L.P The opinions are solely the author's and should not be attributed to any client
• Pages: 46-47

Page 46 ❧ THE ENVIRONMENTAL FORUM Copyright © 2008, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Nov./Dec. 2008

Th e fo r u m

CAIR left in place the Clean Air Act

Section 126 petition process and the

NOx Budget Trading Program, or

NBTP. Several states are seriously

considering f‌iling Section 126 peti-

tions with EPA; North Carolina al-

ready has such a petition before the

agency. However, an EPA response

to such petitions is not likely in the

next two years (though with North

Carolina’s petition already before the

agency, there could be more expedi-

tious action). EPA may promulgate

a Federal Implementation Plan to

redress interstate transport, but a

FIP would not be in ef‌fect for at

least several years. e NBTP is not

a substitute for CAIR: it only covers

NOx and not sulfur dioxide; it is

seasonal, not annual; and it includes

fewer states than CAIR (just 21, ver-

sus 28 under CAIR). In addition, at

least 10 states need to reinstate their

NBTP programs because they were

sunsetted by CAIR.

Since a federal regulatory re-

sponse to the CAIR vacatur may not

be timely enough for states facing

imminent deadlines in attainment-

demonstration SIPs, states will need

to exercise leadership and mandate

emission reductions from power

plants. To assist states that wish to

pursue this path, NACAA is cur-

rently developing a model rule

that could serve as an alternative

to CAIR and help agencies control

NOx, SO2 and mercury emissions.

It is NACAA’s hope that Con-

gress will ultimately enact rigorous

multi-pollutant legislation target-

ing power plants. However, in the

meantime, states are determined to

keep faith with their citizens and are

working to ensure that power plant

emissions are restricted quickly and

ef‌fectively.

S. William Becker is Executive Director of

the National Association of Clean Air Agen-

cies.

Congress Needs

to Act, but to

Act Carefully!

W B

The D.C. Circuit’s decision

in North Carolina v. EPA

vacating the Clean Air In-

terstate Rule was a major

setback for the EPA, the

environment, and the electric indus-

try. e decision was a blow against

regulatory innovation that will

signif‌icantly delay urgently needed

emission reductions and could

strand billions of dollars in pollu-

tion control investments. Absent

congressional action to address the

decision, we face years of regulatory

delay, inconsistent state actions, and

protracted legal challenges. Congress

needs to act. However, legislation

that addresses CAIR alone would be

a missed opportunity.

e D.C. Circuit’s interpretation

of Clean Air Act Section 110(a)(2)

(D) ef‌fectively precludes EPA from

resurrecting a market-based program

to address f‌ine particle pollution in

compliance with the Clean Air Act.

e agency also cannot take other

measures that would achieve emis-

sion reductions as quickly as CAIR.

EPA’s traditional route of requiring

new State Implementation Plans to

address f‌ine particle pollution would

take years for the SIPs to be submit-

ted, approved, and implemented.

e SIPs also would be highly var-

ied. States on the fringe of the CAIR

region would need to do relatively

little to bring emissions below levels

that triggered CAIR applicability,

whereas coal-dominant Midwestern

states could be forced to impose

controls on virtually all of their

coal-f‌ired units. is certainly would

come only after years of litigation.

CAIR’s vacatur presents Congress

with the challenge of redressing the

ambient air issues created by the

North Carolina decision, but it also

States Ready to

Move Ahead on

eir Own

S. W B

F acing statutory air qual-

ity deadlines and looming

public health and welfare

consequences — which

include not only serious

illnesses, but also staggering num-

bers of premature deaths — states

are in a serious bind. Many were

counting on the Clean Air Interstate

Rule to reduce emissions that cause

or contribute to ozone and f‌ine par-

ticulate matter levels and visibility

impairment. But with the vacatur

of CAIR, the near-term power plant

emission reductions that states an-

ticipated may not occur, making

the challenge of achieving the eight-

hour-ozone and PM2.5 National

Ambient Air Quality Standards and

improving visibility all the more

forbidding. But, with lives literally

hanging in the balance, states are

carefully evaluating their alterna-

tives, with many preparing to take

action of their own.

When CAIR was promulgated,

the National Association of Clean

Air Agencies deemed it a “good f‌irst

step” toward addressing transported

power plant emissions, but also be-

lieved that the emission reductions

were not deep enough or timely

enough to assist states in achieving

attainment by statutory deadlines,

and that the scope was not broad

enough in terms of sources included.

Nevertheless, despite CAIR’s

imperfections, many states relied on

this rule in their eight-hour-ozone,

PM2.5 and regional haze attainment

demonstration State Implementa-

tion Plans in order to achieve criti-

cally needed reductions in upwind

power plant emissions, over which

states do not have regulatory author-

ity.

e court decision to vacate