DISEMPOWERING THE EPA: HOW STATUTORY INTERPRETATION OF THE CLEAN AIR ACT SERVES THE TRUMP ADMINISTRATION'S DEREGULATORY AGENDA.

• Author: Goffman, Joseph
• Position: The EPA at Fifty Symposium

INTRODUCTION I. THE CLEAN AIR ACT'S PROGRESSIVE NATURE A. The Clean Air Act's Clear Statutory Mandate for Progress B. The EPA's Understanding of Its Mandate C. Judicial Backing of a Progressive Clean Air Act II. THE TRUMP ADMINISTRATION'S ACTIONS TO RESTRICT THE AGENCY'S AUTHORITY A. The Affordable Clean Energy Rule B. Withdrawal of California's Waiver for Automotive Emissions Standards C. Reversal of the Appropriate and Necessary Finding for the Mercury and Air Toxics Standards D. New Source Performance Standards for the Oil and Gas Sector CONCLUSION INTRODUCTION

As the Environmental Protection Agency (EPA) and the Clean Air Act (CAA) reach their respective fiftieth anniversaries, President Donald Trump's administration is bending the historic trajectory of both the Agency and the Act. (1) For most of its existence, the EPA's path has been "progressive" in that the statutes the EPA implements, including the CAA, obligate the Agency to advance its regulations as science and technology progress. (2) The EPA's rule-making under the CAA must integrate advances in our understanding of the effects of air pollution on the environment and on public health, as well as new methods to curb pollution.

Provisions of the CAA ensure a continual and comprehensive response to the threats posed by air pollution. (3) These include the EPA's obligation to periodically update pollution-control-technology standards and to review the National Ambient Air Quality Standards (NAAQS) so that the standards reflect the latest science. The CAA specifies many of these mandates explicitly. (4) Where the Act is vague in whether and how it applies to emerging understandings of air-quality challenges, the EPA has read the language to be capacious enough to require or authorize the Agency to take the actions needed to solve these new problems. (5) To do so, the EPA evaluates new science to find CAA-based solutions to meet the Act's emission-reduction goals. The EPA has also generally understood the CAA as granting the Agency the authority to allow compliance flexibility for regulated sources while still meeting the required emissions reductions. (6) The courts have mostly ratified the EPA's interpretive approach. (7) This bolsters the Agency's understanding that the CAA contains the necessary tools for it to achieve continually improve air quality.

The Trump EPA is working to change the Agency's progressive trajectory through a series of rule rollbacks based on interpretations of the CAA that narrow the Agency's legal authority. The EPA is no longer conducting rigorous empirical analyses to understand and solve air-quality problems; instead, it is interpreting the CAA to establish that it lacks the authority to act. (8) In so doing, the Trump Administration is reaching the conclusion that the EPA is directly or indirectly bound by the Act to do less to control air pollution. (9) The Trump EPA is also discarding the balance between compliance flexibility and air-quality goals. It is deregulating to provide leniency to regulated sources and to preclude the Agency from re-enrbracing a more progressive interpretation of the CAA in the future. (10) Through these actions, the EPA is defying its own mission as well as the language and logic of the statute.

If successful, the Trump EPA will curtail the Agency's long-term ability to effectively regulate sources of pollution, including greenhouse gas emissions. The Administration is advancing this deregulatory goal through two primary methods: imposing a static interpretation of the statutory text to limit its power to regulate; and undermining the structure of key provisions of the Act that contemplate a comprehensive strategy to reducing pollution. Through the latter strategy, the Trump EPA defeats the comprehensive nature of the CAA's pollution-abatement programs by disaggregating pollution sources and pollution reductions and sub-categorizing benefits when the Agency must determine whether to regulate. By looking narrowly at each problem, the EPA is preemptively justifying its conclusion that no action is warranted. In two recent rule-makings, the EPA acknowledges that the regulatory change will have negligible impacts on pollution levels. (11) Instead, the rule-makings emphasize the Agency's new legal interpretations, strongly suggesting that their purpose is to hamstring the EPA's future efforts to use the CAA to address emissions, especially climate pollutants.

This Article proceeds in three parts. First, we provide an overview of the foundation of the CAA, its progressive logic, and the judiciary's affirmation of the EPA's broad authority to address evolving air-quality problems. Second, we detail four actions by the Trump EPA that exemplify the Agency's strategy of undermining its own statutory authority: its repeal of the Clean Power Plan and the promulgation of the Affordable Clean Energy rule, its revocation of the waiver for California's regulation of greenhouse-gas-tailpipe emissions and the zero-emissions-vehicle program, its reversal of the "appropriate-and-necessary" finding for regulating hazardous air-pollutant emissions from power plants, and its proposed New Source Performance Standards for the oil and natural-gas sector. (12) Third, we conclude by describing the consequences of these actions.

1. THE CLEAN AIR ACT'S PROGRESSIVE NATURE

   Congress designed the CAA to make continuous progress towards cleaner air. The CAA's first purpose is "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare." (13) The Act further states that "[a] primary goal of the Act is to encourage or otherwise promote reasonable Federal, State, and local governmental actions ... for pollution prevention." (14) The logic of the CAA is that the EPA must effectively protect the environment and public health in a manner that is reasonable for each specific pollution-control provision. As Senator Muskie affirmed during the 1970 debate on the Act, "Congress should make ... commitments to meaningful environmental protection; effective protection of the health of all Americans; and the early achievement of these goals." (15) Though these goals have proven more difficult to meet, Congress successfully enacted such a statute and tasked the EPA with continually working toward achieving its purposes. (16) The courts have reinforced the EPA's statutory mandates, and have mostly upheld stringent pollution-control requirements based on the Agency's statutory interpretations. (17) The courts have allowed the Agency to implement the statute in a less demanding manner only when the judiciary finds it is authorized by statute to do so.

   1. THE CLEAN AIR ACT'S CLEAR STATUTORY MANDATE FOR PROGRESS

      Woven into the CAA's fabric is a congressional mandate for progress, not through the sweeping aspirational language found in other environmental statutes, but by requiring recurrent standard-setting and upgrades to pollution-control techniques. The CAA demands that every five years the EPA determine whether the latest science compels a revision of the NAAQS. (18) If it does, then the EPA Administrator must revise the NAAQS accordingly. The Act further requires that every eight years the EPA determine whether technological advances warrant tightening emission standards for new and modified stationary sources of pollution. (19) Congress complemented those tasks with mandates that the EPA act when states fail to meet their regulatory obligations triggered by the Agency's updates to the air-quality standards. In addition to the mechanisms designed to result in continually declining pollution, Congress suffused the Act's language with calls for the continuous reduction of air pollution. Maximalist adjectives are the foundation of the various technological standards: best available control technology, (20) maximum achievable control technology, (21) best system of emission reduction, (22) and lowest achievable emission rate, (23) for example.

      The Act's central science-based, technological-diffusion mechanism begins with the EPA's mandatory review of the NAAQS. The Administrator must "complete a thorough review" of each ambient-air standard at five-year intervals and "make such revisions ... and promulgate such new standards as may be appropriate" (24) to ensure the NAAQS "accurately reflect the latest scientific knowledge." (25) To fulfill this mandate, the EPA conducts a comprehensive review of the existing science through an extensive multi-step process that involves the Agency's expert staff and contributions from an independent expert review committee. (26) After the EPA receives public input and advice from experts, it decides whether to revise the allowable level of pollution in the ambient air. This decision must be based solely on public-health considerations and may not consider other concerns such as cost or feasibility. (27)

      Because of the increasing understanding of air pollution's impact on human health, the NAAQS review process frequently results in the EPA tightening the existing standards. This triggers a chain of obligations for both the EPA and for states, resulting in new actions requiring further pollution reductions. The EPA first designates counties as either meeting the new standards ("in attainment") or exceeding the standards ("non-attainment"). (28) States must then develop "State Implementation Plans" requiring pollution sources to reduce pollution to levels that will both ensure non-attainment counties reach attainment and "prevent significant deterioration" in areas that are already in attainment. (29) The plans rely on pollution-abatement technology to be diffused across sources and statutory programs, and they include requirements that newly constructed or renovated facilities install and operate up-to-date technology. (30) The installation and operation of those technologies foster further pollution-control innovations that inform future...