Paradise delayed - the continuing sage of the Los Angeles Basin Federal Clean Air Implementation Plan.

• Jurisdiction: United States
• Author: Waltner, Alan C.
• Date: 22 December 1996

I. INTRODUCTION

It should not be surprising that the Clean Air Act is stressed to its limit when it faces the worst air-pollution in the country -- that found in the Los Angeles Basin. There, an automobile culture, unfavorable meteorology, substantial population, and extensive manufacturing base are presented in a balkanized landscape of local governments. Given the regional nature of the air pollution problem, the effects of decisions made by municipalities are typically felt some distance away, by voters in other jurisdictions. Also, the impacts of air pollution are borne by the public generally, with no focused constituency corresponding to that found in the regulated community which bears most costs of air pollution controls. This is hardly a recipe for success if healthy air is to be achieved for the approximately 14 million residents of the area. Unfortunately, experience counsels this pessimistic forecast.

While it now seems painfully optimistic, the 1970 Clean Air Act directed that all areas of the country, including the Los Angeles Basin, achieve healthy air by 1975.(1) The primary method for achieving this goal was the state implementation plan (SIP), a collection of control measures developed by states and demonstrated adequate to produce healthy air.

Foreseeing the difficulties that this ambitious goal would present, the 1970 Act also directed the federal government to develop a plan for any areas where state efforts fell short. As conceived in 1970, the federal implementation plan, or "FIP," was anticipated to serve a number of useful purposes. Most importantly, the FIP appeared to guarantee that healthy air would be achieved, because it committed the federal government to taking action if state and local government efforts fell short. On a more subtle level, the threat of a FIP would inspire state and local governments to act, perhaps overcoming the obstacles mentioned above.

In practice, however, reality has fallen short of this promise. Despite considerable efforts spanning more than two decades, the Los Angeles Basin has never had a SIP that would achieve all federal air quality standards. In addition, two FIPs(2) for the Los Angeles Basin have now been commenced, only to be abandoned. Moreover, neither of these FIPs was undertaken voluntarily by the Environmental Protection Agency (EPA) and each had to be compelled by citizen suit.(3) Presently, reliance continues to be placed on a state planning process that has failed for over a quarter of a century to satisfy its federal obligations.

A number of factors have contributed to this impasse. The sheer magnitude of the planning effort required and the corresponding time scale necessary to carry out those efforts were not adequately accounted for in the initial 1970 Clean Air Act. The broad approach taken in the 1970 Clean Air Act, which was based upon achieving health-based National Ambient Air Quality Standards (NAAQS), added to the challenge. For the most part, those portions of the Clean Air Act that have worked well (such as new motor vehicle standards) were technology-based rather than ambient-based. Unfortunately for the citizens of the Los Angeles Basin, however, the technology-based approaches in the 1970 Clean Air Act were designed for broader areas (such as California or the nation as a whole) and fell far short of meeting the reductions necessary to produce healthy air in Los Angeles. In hindsight, when applied to the Los Angeles area, the 1975 attainment deadline was obviously a pipe dream.

By the time the Clean Air Act's original 1975 deadline was approaching, amendments to the Act were in preparation, resulting in a "wait and see" attitude on the part of many regulators. These delays and the resulting lack of an adequate implementation plan for the Los Angeles Basin, led to the preparation of a FIP in 1973. This FIP, in turn, was withdrawn as amendments to the Clean Air Act were developed in the mid-1970s, culminating in the 1977 Clean Air Act Amendments. The 1977 Amendments required that a revised state plan be developed to achieve NAAQS in the Los Angeles Basin no later than 1987. But again, state and local efforts fell short and the EPA ultimately disapproved the plan submitted by the state. In the 1980s and 1990s, a combination of procedural dodges by the Environmental Protection Agency and court delays prevented a FIP from reaching completion until early 1995. Then, just as a FIP signed by EPA Administrator Carol Browner on February 14, 1995, was being typeset for the Federal Register, a newly reconstituted Congress with little fanfare or discussion directed that the effort be abandoned in a rider to an unrelated budget bill.(4)

Although notable progress has been made in cleaning up Los Angeles smog, and efforts at all levels of government clearly have resulted in less smog than otherwise would have occurred, the ultimate goal of achieving healthy air in Los Angeles is perhaps as far from realization as it was in 1970. Under the present version of the Clean Air Act, the air breathed by millions of people in Los Angeles will remain unhealthy for at least the next fourteen years and, given past history, probably much longer.

Although the EPA's 1995 FIP has been rescinded, the Clean Air Act has retained the FIP measure prospectively. Under the 1990 Amendments, FIPs are triggered by either total or partial disapproval of a state plan, or when a state has failed to make an adequate plan submission.(5) For the Los Angeles Basin, which is classified as an extreme nonattainment area under the Amendments,(6) a new state plan submission was made on November 15, 1994.(7) The EPA determined most of that submission to be complete on April 18, 1995.(8) Under the timetable established by the 1990 Amendments, this made the EPA's final action approving or disapproving the State's submission due one year from that date, or April 18, 1996.(9) On March 18, 1996, the EPA proposed to approve the November 15, 1994, state plan submission.(10)

Among other problems, however, the State's submission assigned responsibility to the EPA for a substantial portion of the necessary emissions reductions,(11) and did not anticipate the passage of the Defense Supplemental Appropriation bill rescinding the FIP. Moreover, with the political pressure imposed by the FIP suspended, state and local progress has stalled and even been reversed.(12) Unless this trend is reversed, the State's 1994 SIP submission is likely to fall short of meeting the NAAQS for ozone, disapproval may occur, and a FIP once again would be triggered under Section 110(c).

Since the FIP measure is likely to play a role in the future, a pause to reflect on lessons learned from the recent FIP experience is appropriate. This Article views the FIP as likely to serve an important role in making the air in Los Angeles healthy to breathe, perhaps early in the next century. Criticisms of the FIP process are addressed and, indeed, several are accepted. For example, the limited resources that the EPA can bring to bear in developing a FIP, the limited scope of federal jurisdiction (in particular the inability to include land use planning and similar local measures in any FIP), and the relative lack of information and familiarity with local conditions all limit the ultimate quality of plans that can be expected from the FIP process. The benefits of the FIP, however, outweigh these limitations. FIPs provide necessary discipline to ensure that progress is made toward meeting the health-based NAAQS. They also serve as a vehicle for regulating sources that may be under exclusive federal control (such as aircraft and out-of-state motor vehicles). Nearly all of the potential drawbacks of the FIP process can be addressed through a cooperative planning process at the federal, state and local levels that takes best advantage of the resources and tools available to each participating agency.

Part II of this Article examines the broad history of air pollution regulation in the Los Angeles Basin, focusing on the two abortive federal implementation plans and their role in shaping the air pollution debate. Part III presents and responds to the criticisms of the FIP process that have been leveled in recent years. Part IV discusses the erosion of credibility that has resulted from what now appear to be routine extensions and delays in the federal effort. Part V forecasts the future of the FIP controversy, given the likelihood that history will repeat itself and state efforts will continue to fall short of producing healthy air in Los Angeles.

II. A QUARTER CENTURY OF EFFORT PRODUCING LESS THAN FIVE YEARS OF PROGRESS

A. The Problem

The Los Angeles area has never had an enforceable state or federal plan that would achieve the: health-based NAAQS for ozone and carbon monoxide. Despite planning efforts stretching back well over thirty years, the South Coast Air Quality Management District (SCAQMD), which has principal responsibility under state law for preparing air quality regulations for the South Coast,(13) has failed to produce an adequate SIP.

The impacts of this failure to achieve NAAQS are widely recognized. As described by the EPA:

The Clean Air Act guarantees to all Americans healthy air to

breathe. Unfortunately, more than three-quarters of all

Californians are currently exposed to health-threatening levels of air

pollution -- the most serious problem being ground-level ozone or

smog.(14)

The social and economic impacts of such severe air pollution are staggering, with estimates of health and welfare damages in the billions of dollars per year.(15) This grim accounting is confirmed by estimates accompanying the 1991 Draft SIP:

Ninety-eight percent of the region's population is exposed to unhealthful

air. Ozone can permanently scar lung tissue. Ozone can

also cause respiratory irritation and discomfort and makes breathing

more difficult during exercise. Children, the elderly, and persons

who exercise...