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Rescuing the Clean Air Act from Old Age

Wednesday, March 16, 2011

The Environmental Protection Agency’s reasons for not using its usual approach to regulating greenhouse gases unwittingly shows that it is obsolete for controlling conventional pollutants. Congress should update the Clean Air Act.

The Environmental Protection Agency's (EPA’s) approach to greenhouse gases (GHGs) has revealed that we need a less antiquated way to control the kind of air pollutants it has long regulated. Since 1970, the Clean Air Act has required the EPA to set National Ambient Air Quality Standards (NAAQS) for the most important of these regulated pollutants—conventional pollutants such as ozone and particulate matter—then achieve those standards through State Implementation Plans. Yet the EPA refuses to take this approach with GHGs, even though it views them as today’s most important pollutants.

Some environmental groups have petitioned the agency to use the NAAQS approach for GHGs because it requires the agency to set an environmentally based goal and achieve it by a deadline. The EPA’s reasons for rejecting that approach unwittingly show that it is obsolete for controlling conventional pollutants. The moral: Congress should update the Clean Air Act, which it has left unchanged since 1990.

The EPA gave three reasons for refusing to set a NAAQS for GHGs. First, the agency argues that the Clean Air Act requires it to achieve the NAAQS, but that this may well be impossible for GHGs because they are emitted around the world, and their emissions anywhere increase the ambient concentration everywhere.

This argument is faulty because the EPA could set the NAAQS as a percentage reduction in nationwide emissions. The point, however, rings true for the emissions of conventional pollutants worldwide, because they increasingly interfere with attaining existing NAAQS, which are set in terms of ambient concentrations. Accordingly, in arguing that foreign emissions are a reason against setting a NAAQS for GHGs, the EPA left unsaid that they are also a reason for restructuring the Clean Air Act’s treatment of existing NAAQS pollutants such as ozone and particulate matter.

In arguing that foreign emissions are a reason against setting National Ambient Air Quality Standards for greenhouse gases, the EPA left unsaid that they are also a reason for restructuring the Clean Air Act’s treatment of existing NAAQS pollutants.

Second, the EPA argues against a NAAQS for GHGs because the Clean Air Act prohibits considering cost in setting a NAAQS. Yet, despite this prohibition, the EPA has as a routine matter covertly considered cost in setting the NAAQS for conventional pollutants. In arguing that prohibiting cost consideration in setting NAAQS is a reason against setting a NAAQS for GHGs, the EPA left unsaid that its circumvention of this prohibition is a reason for restructuring the Clean Air Act’s treatment of conventional NAAQS pollutants.

Third, the EPA argues against setting a NAAQS because State Implementation Plans (SIPs)—state programs adopted under compulsion of detailed federal mandates—are a rigid, inefficient, and inefficacious way to control pollution. SIPs did make some progress in their early years, when regulators could readily identify inexpensive, end-of-the-tailpipe control technologies that large plants had yet to install. Now, however, most of the low-hanging fruit has been picked, and top-down, command-and-control regulation has become far less efficient and effective. Furthermore, a 2004 study by the National Research Council concluded that the SIP process “now mandates extensive amounts of ... time and resources in a legalistic, and often frustrating proposal and review process … overtaxes the limited financial and human resources available to the nation’s [Air Quality Management] system … and draws attention and resources away from the more germane issue of ensuring progress towards the goal of meeting the [NAAQS].”

Thus, in arguing that the dysfunction of SIPs is a reason against using them to control GHGs, the EPA left unsaid that it is also a reason for restructuring the Clean Air Act’s treatment of conventional NAAQS pollutants.

Breaking the Logjam, a joint project by New York Law School and New York University’s School of Law, has shown how to rescue the Clean Air Act from obsolescence. Its proposal builds on past successes in improving air quality:

• Regulation of new vehicles, which cut emissions 99 percent;
• Regulation of lead in gasoline, which eventually cut emissions 100 percent;
• Regulation of acid-rain-causing emissions from power plants, which cut emissions approximately 50 percent; and
• Regulation of stratospheric-ozone-destroying chemicals, which is in the process of cutting emissions 100 percent.

Emulating these successes, the project’s proposal for conventional NAAQS pollutants would have Congress:

• Regulate sources rather than states;
• Decide how much to cut pollution and how to allocate the cleanup burden; and
• Use market-based mechanisms to give sources flexibility in making the cuts.

In particular, Congress should adopt direct federal controls on all important sources of NAAQS pollutants, including large stationary sources, fuels, and new vehicles. These direct federal controls should take the form of cap-and-trade. Congress should set the caps to decline over time and determine the method of distributing the allowances. This federal program would cover only a few percent of the large stationary sources and none of the small ones, yet still control the lion’s share of pollution. The program as a whole could largely supplant SIPs and related programs for NAAQS pollutants.

This approach would require legislators to take responsibility for choosing how fast to cut pollution and how to allocate costs. Congressional accountability would mean less power for the EPA and environmental groups—but better air quality and more economic growth.

David Schoenbrod is a professor at New York Law School, a visiting scholar at the American Enterprise Institute, and co-leader of Breaking the Logjam. The project’s work is summarized in the book Breaking the Logjam: Environmental Protection That Will Work, coauthored by Schoenbrod, Richard B. Stewart, and Katrina M. Wyman. Melissa Witte practices law in New York.

FURTHER READING: Schoenbrod has also testified on “Regulations from the Executive in Need of Scrutiny Act,” researched means of “Rescuing the Clean Air Act from Obsolescence,” and discussed “The Cap-and-Trade Bait and Switch.” Steven Hayward gives “Two Cheers for the Clean Air Act,” Kenneth Green alerts readers to “Cap-and-Trade by Any Other Name,” and Green and Hiwa Alaghebandian say EPA regulations hinder economic progress in “Industry Has Spoken… Will the President Listen?”

Image by Rob Green/Bergman Group.

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