When Must EPA Set Ambient Air Quality Standards? Looking Back at NRDC V. Train

Article excerpt

  I. THE ORIGINS OF NRDC v. TRAIN
 II. THE NRDC LITIGATION AND OPINION
III. THE AFTERMATH
     A. Setting the Ambient Standard for Lead
     B. Implementation of the Ambient Air Quality
        Standards
     C. Did the Standard Accomplish the Goals of
        NRDC?
IV. CONCLUSION

At our conference at UCLA on the Clean Air Act and climate change in April 2011, Kassie Siegel of the Center for Biological Diversity described what she thought could be accomplished if the United States Environmental Protection Agency (EPA) were to set national ambient air quality standards for greenhouse gases under the Clean Air Act (Act). (1) These standards, she explained, would establish a target concentration of greenhouse gases in the outside atmosphere we breathe (e.g., 350 parts of carbon dioxide per cubic meter of air). (2) States would then prepare State Implementation Plans (SIPs) that would detail the steps they would take to meet those standards, such as establishing controls on major sources like power plants or altering land use laws and management to decrease reliance on the single-occupancy motor vehicle. (3)

As I have explained elsewhere, there are many disadvantages to setting ambient air quality standards for greenhouse gases. (4) For example, the ambient standard system would take a long time--roughly ten years--to be put into place. There would be controversy and room for litigation about the exact level at which the standard should be set, a question over which there is already a great deal of debate. Once set, the standard would doubtless be challenged in court, further delaying implementation. SIPs would likewise be subject to administrative and legal challenges. One nationally-known expert on the Act, now a lawyer in private practice, has told me that if he were being paid to hinder regulation of greenhouse gases, he would want EPA to go down the ambient standard path. (5)

The difficulties of setting ambient air quality standards for greenhouse gases would be justifiable--just as ambient standards are for other important air pollutants--if the standards could be effectively implemented. But this is not the case. Ironically, both the Act's stringency and laxity play a role. Presumably, EPA would set both health-based and welfare-based ambient air quality standards (primary and secondary standards, respectively) because it has found that greenhouse gases endanger both health and welfare. (6) Under the Act, states must demonstrate that nonattainment areas meet health-based standards within ten years after being designated as nonattainment. (7) But decreasing concentrations of greenhouse gases takes much longer because some greenhouse gases, such as carbon dioxide, stay in the atmosphere for prolonged periods and even centuries. (8) The consequence is that EPA would either have to approve plans that it knows will not meet the standard or demand plans with draconian measures that still might not be effective. In addition, the ten-year period for attainment would focus direction on short-term steps, such as energy efficiency initiatives, and not on long-term measures, such as altering land use policies, which might prove more effective over time.

The environmental community could possibly agree to ignore the ten-year deadline, although maintaining such an agreement among the large number of potential challengers to EPA would not be easy. But there is little that the community can do to cope with the other obstacle: section 179B of the Act. (9) This provision--inserted at the behest of Texas Senator Phil Gramm in 1990 as solace to El Paso, which is near the Mexican city of Juarez (10)--requires EPA to approve a state plan if it would show attainment but for emissions emanating from outside of the United States. Thus, because foreign nations emit three-quarters of all greenhouse gases, a state could gain approval of a plan that would not do much to reduce emissions. (11)

Therefore, setting and enforcing ambient air quality standards is likely to be a tail-chasing process that would gain little. …