Climate Change, the Clean Air Act, and Industrial Pollution

Article excerpt

I.   THE ROLE OF CO-POLLUTANT CONSIDERATIONS IN
     CLIMATE POLICY
     A. The Value of a Comprehensive Approach
     B. The Benefits of Integrating Co-pollutant
        Considerations into Climate Policy
        1. The Environmental Benefits of Integrating
           Co-pollutant Considerations
           a. Existing Air Pollution
           b. Do Climate Policies Reduce Co-pollutants?
           c. How Significant are Climate Policies'
              Co-pollutant Benefits in Light of
              Existing and Emerging Direct Co-pollutant
              Controls?
        2. The Administrative and Technical Benefits
           of Taking a Multi-pollutant Approach
     C. Addressing the Potential Economic and
        Political Implications of Incorporating Co-pollutant
        Considerations
     D. How Co-pollutant Implications Could Influence
        Climate Policies
II.  REGULATION OF STATIONARY SOURCES UNDER
     THE CAA
     A. The Prevention of Significant Deterioration
        Program
     B. Section 111 Standards
III. THE CO-POLLUTANT IMPLICATIONS OF
     REGULATORY VERSUS MARKET STRATEGIES
     A. Cap-and-Trade
     B. Integrating Co-pollutant and GHG Control
        Strategies
     C. Co-pollutant Distribution
     D. Impact on Stringency and Associated Co-pollutant
        Benefits
     E. Certainty of Reductions
     F. Offsets and In-sector Reductions
     G. Incentives for Technology Transformation
     H. Participatory Benefits
     I. Conclusion
IV.  PERFORMANCE STANDARDS FOR EXISTING
     SOURCES: EXTENDING THE CAA's REACH
     A. Extending the CAA to Previously Unregulated
        Facilities
     B. The Nature of Section 111(d) Standards: Modest
        or Transformative?
V.   CONCLUSION

This article, prepared for UCLA Law's spring 2011 symposium entitled "Perspectives on Climate Change, Pollution, and the Clean Air Act," begins by addressing an interesting but narrow question: what are the co-pollutant implications of applying the Clean Air Act (CAA) to stationary source greenhouse gas (GHG) emissions? That inquiry has led inexorably to deeper issues, including the appropriate role of co-pollutant consequences in developing climate policies, the co-pollutant benefits and drawbacks of traditional versus market-based regulation, and, more specifically, the value of using the CAA to reduce GHG emissions.

The CAA's GHG provisions for industrial sources are controversial. Environmental Protection Agency (EPA) Administrator Lisa Jackson, environmental organizations, and industry would prefer new climate legislation to implementing the CAA. (1) Further, numerous congressional bills and appropriations riders have sought--persistently but unsuccessfully--to strip EPA of its authority to regulate GHGs under the CAA. (2) An analysis of the CAA's co-pollutant implications can help inform the larger debate about the CAA as a climate policy tool.

Given the strong correlation between GHGs and traditional pollutants, there is little question that regulating GHGs from stationary sources will have important co-pollutant consequences. Fossil fuel combustion to produce energy contributed eighty-seven percent of GHG emissions in the United States in 2009, (3) and stationary sources contributed over half of those emissions. (4) Climate policies addressing stationary sources will therefore significantly impact fossil fuel combustion. In most instances, as GHG emissions decrease, associated co-pollutants, like sulfur dioxide, nitrogen oxides, particulates, and other hazardous components, are also likely to decrease. (5) Given the persistence of ongoing air pollution and its pervasive public health and environmental consequences, this "co-pollutant benefit'.' is significant.

Yet, for the most part, co-pollutant benefits have played little role in climate policy debates. A recent study on the role of co-pollutant benefits in climate policy analyses observed that decision-makers "do not usually consider the full range of effects of actions to address climate change. …