AuthorElliott, E. Donald
PositionThe EPA at Fifty Symposium

CONTENTS INTRODUCTION I. EPA REGULATION OF AIR POLLUTION HAS ACHIEVED MEASURABLE PROGRESS II. THE CRITICS ARGUE WE COULD HAVE DONE EVEN BETTER A. The Failure of Comprehensive Federal Regulation of Greenhouse Gases B. Getting It Right Can Take a Generation 1. Eliminating the Lead from Gasoline 2. Ending Grandfathering of Existing Plants 3. The Long Struggle Against Inter-State Air Pollution C. Under Reliance on Economic Incentives CONCLUSION INTRODUCTION

The air pollution control program is the crown jewel of the Environmental Protection Agency (EPA), an agency that often develops "the state of the art" in regulation generally. (1) Officially called the Office of Air and Radiation (OAR), (2) the air program has achieved most of the public health benefits (3) of our five-decade-long crusade to "save the planet." It is time to undertake a sober assessment of both strengths and weakness of air-pollution regulation to learn lessons for future regulatory programs.

To its credit, the OAR has made measurable progress in reducing every type of air pollution it has targeted. The main features of the U.S. system of regulating air pollution--"cooperative federalism," (4) notice and comment rulemaking, benefit-cost analysis, and citizens' suits--were all innovations in 1970 when the effort began; today, they are proven regulatory techniques. While the system has been expensive, it has achieved significant progress and credibly claims benefits to public health and productivity many times its costs.

On the negative side, the United States' method of regulating air pollution has been criticized as slow and inefficient. (5) As discussed below, in some instances it has required thirty years or more to achieve the EPA's objectives. (6) These long delays are, in the main, not the EPA's fault. They result in part from the method of regulation mandated by Congress, which relies on the EPA's compiling an extensive scientific record, followed by public-notice-and-comment rulemaking, judicial review by generalist judges, state implementation, and finally, enforcement, primarily through civil litigation. (7) This system of rulemaking, like everything made by humans, has its strengths and weaknesses. On one hand, the EPA has been remarkably successful over a generation at using its interpretive " Chevron discretion" (8) to cope with structural weaknesses that were built into the program by Congress from its inception, such as "grandfathering" existing plants and using states as the primary units for implementation while many air pollution problems are regional in their nature. The U.S. system of regulation takes a long time to implement, but eventually it generates specific air-pollution limits that are verifiable and enforceable for the thousands and thousands of major sources of air pollution of multiple types, which greatly enhances enforceability. (9)

On the negative side, the OAR has generally been reluctant to use monetary incentives in addition to command-and-control rules to regulate polluters. This is partly cultural, but it also results from an unfortunate misunderstanding of the EPA's authority to impose "user fees" for use of the atmosphere for waste disposal. (10) While many of the advantages of economic-incentive systems have been touted in the academic literature, including cost savings and stimulating innovation, (11) it has generally not been recognized that the economic incentives to reduce pollution created by either tradeable permits or user fees take effect immediately, while command-and-control rules typically take years to roll out. Moreover, once a source has a command-and-control limit in place, it has little or no incentive to reduce pollution below the legal limit and may even be reluctant to develop new techniques that it would then have to apply as "best available control technology" at its other locations.

This Article suggests that in the future the OAR, and the EPA generally, should consider charging user fees to create incentives to reduce pollution in addition to setting maximum pollution limits. (12) It is hard to imagine that at this late date Congress would substitute either tradeable permits or emissions fees for the existing system of regulatory limits; however, in order to speed up the pace of reductions in air pollution, it might be attractive politically to enact a provision giving polluters the option to opt out of the existing system of command-and-control regulation, with all of its regulatory red tape and delays, if they cut their existing pollution permitted under the current system by a significant amount, such as 10-25%, and paid an emissions fee on the pollution that they continue to emit. (13) Because such a system would both reduce pollution and cut red tape, it might even be possible to enact it on a bipartisan basis. In some limited instances, the EPA might even be able to do something like this under its existing statutory authority to approve an "alternative equivalent program" under Section 172(e) of the Clean Air Act. (14)


    The OAR has led a revolution in public health and well-being. To those who did not live through this transformation of our air, it is hard to imagine. When I first moved to Washington, D.C. in the mid-1960s, the smog was so thick that I could not see across the street. Breathing the acrid air burned inside your nose and hurt your lungs; today, that never happens in Washington, and is rare elsewhere. The photo below compares New York's air in 1973 (on the left) and 2013 (on the right). (15)

    Two-thirds of our population lives in areas that meet all of the EPA's minimum air-quality standards, but about one-third (roughly 137 million people) live in areas that still violate one or more of them. (16) However, the standards today are more stringent; overall, the air is definitely getting cleaner, but more work remains to be done.

    Some criticize the EPA's air-pollution record, but in the main, they are constructive critics who argue that we could have done better. (17) Overall, however, almost everyone agrees that regulation of air pollution is one of the major successes of federal policy in the twentieth century.

    The EPA has racked up many impressive achievements in reducing in air pollution, including:

    * eliminating lead from gasoline; (18)

    * promulgating and progressively reducing national ambient-air-quality standards (NAAQS), requiring states to reduce dramatically the concentrations of six ubiquitous pollutants in the air, primarily from factories and power plants burning fossil fuels; (19)

    * phasing out chlorofluorocarbons (CFCs) and (HCFCs), which were damaging the ozone layer; (20)

    * reducing significantly air pollutants from automobile tailpipes and motor fuels; (21) and

    * requiring over 140 categories of industry to install technology to control emissions of toxic air pollutants. (22)

    The agency itself reports major air-quality improvements:

    Between 1990 and 2017, national concentrations of air pollutants improved 80[%] for lead, 77[%] for carbon monoxide, 88[%] for sulfur dioxide (1-hour), 56[%] for nitrogen dioxide (annual), and 22[%] for ozone. Fine particle concentrations (24-hour) improved 40[%] and coarse particle concentrations (24-hour) improved 34[%] between 2000 ... and 2015. (23) This progress in reducing ubiquitous air pollutants, primarily from burning fossil fuels in power plants and factories and pollution controls on automobiles, is shown graphically below for the period 1980-2005. (24)

    These reductions in air pollution were achieved without stifling economic growth, as is shown in the chart below. (25)

    The air program also pioneered innovations including "cap and trade" programs, such as the 1979 "bubble" policy and the 1990 acid rain-trading program, which achieved a 50% reduction of sulfur oxide pollution from electric utility power plants at a fraction of the cost of conventional command-and-control regulation. (26)

    But at the same time, the U.S. system of regulating air pollution has been criticized by the friendly critics as slow, complex, and legalistic. (27) Many of the successful air-pollution-control programs took twenty years or more to reach fruition. (28) In addition, the economic costs are high, with federal air-quality policies costing an estimated $80 billion (in 2010 dollars) annually. (29) But most of this money is in the form of transfer payments to buy goods and services, such as pollution-control equipment, so it is not a dead weight loss on the economy. These expenditures produce benefits far in excess of the costs: the EPA estimates that the quantifiable benefits, primarily in improving human health and reducing premature mortality, are thirty to ninety times greater than the costs. (30) Most of these benefits come from reducing the airborne concentrations of very small particles from burning fossil fuels called "particulate matter." (31) These tiny particles lodge in the lungs and have been shown in epidemiological studies to reduce life span compared to people who live in areas with cleaner air. (32) There are debates about the EPA's estimates of huge health benefits from air-pollution reductions, but virtually everyone concedes that the benefits have exceeded the costs; it is just a question of by how much. (33)

    The approach of the air program, like most of the EPA's other programs, is a variation of the style of lawmaking described by the eminent sociologist Robert Kagan as "bureaucratic legalism," a term he borrowed from Max Weber. (34) There are, however, three important additions to classic Weberian bureaucracy: (1) broad rights of public participation, (2) rights of affected citizens to go to court to require the government to initiate or enforce regulation, and (3) judicial review by generalist judges. (35) Elsewhere I have praised these added features as among the best features of the American system of environmental law and...

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