Billboards and Big Utilities: Borrowing Land-Use Concepts to Regulate "Nonconforming" Sources under the Clean Air Act
Varadarajan, Deepa, The Yale Law Journal
For more than thirty years, numerous coal-fired, electric utility plants have enjoyed "grandfathered" status under the Clean Air Act (CAA), leaving them virtually untouched by the dictates of increasingly stringent air pollution regulation in the United States. The Clean Air Act of 1970, which essentially codified the federal regulatory approach toward air pollution, established a two-tiered framework for the regulation of major stationary sources of air pollution. (1) This approach mandated stricter federal pollution-control technology requirements on power plants built after the passage of new regulatory standards than those applicable to existing plants. This bifurcated approach, often called the "old-new division" (2) in pollution-control regulation, continues to the present day, despite two subsequent rounds of amendments to the CAA in 1977 and 1990.
The Clean Air Act Amendments of 1977 introduced two programs, New Source Review (NSR) and Prevention of Significant Deterioration (PSD), which attempted to narrow the old-new divide in control technology requirements. Any major modification of an old source would render it "good as new" for federal regulatory purposes, leading to the imposition of the same control technology requirements that new sources were obligated to follow in a given area. Despite this subsequent "narrowing," many old sources, particularly coal-burning utility plants, predominantly located in the Midwest, continue to operate under more lenient pollution-control requirements. Together, these old sources are responsible for approximately two-thirds of the nation's sulfur dioxide emissions, forty percent of carbon dioxide emissions, and one-third of the nation's nitrogen oxide and mercury pollution. (3) Moreover, if these plants were subject to the same federal technology requirements imposed on their new source counterparts, their emissions figures would diminish by several orders of magnitude. (4) Unfortunately, the last major round of amendments to the Clean Air Act, which took place in 1990, did little to further narrow the old-new divide in federal pollution-control technology requirements for major stationary sources of air pollution. (5)
The continued grandfathering of old sources runs afoul of not only the stated purpose of the CAA to improve the nation's air quality, but also its larger policy goal of stimulating investment in and growth of cleaner technologies. Even if the original motivations behind a two-tiered approach in the 1970 CAA were justifiable both from a policy and constitutional standpoint, (6) a contention that even some current critics of grandfathering seem to support, much doubt exists as to its continued utility or validity. In 1998, two congressional bills were introduced that would have eliminated the grandfathered status of coal-fired power plants under the Clean Air Act. (7) However, these bills were unable to withstand the arguments of electricity-generation firms and their allies in Congress. A cynical observer might attribute (and, indeed, many have) the failure of such bills to the lobbying power of the energy industry and, while lamenting the power of big money to influence environmental legislation, accept this aspect of American politics and focus the scholarly discourse on approaches more attuned to political realities, such as market-driven, cap-and-trade programs, which have become increasingly popular in recent decades. (8)
This outright dismissal is simplistic, however, because the old-new distinctions were originally adopted in the 1970 CAA with a variety of motives. (9) Their original inclusion was due in large part to Fifth Amendment takings considerations, as well as some undoubtedly political motives. It is this former takings argument, not the political motivations (10) behind the old-new distinctions in technology requirements under the CAA, that will serve as the focus of my analysis. Insofar as the takings argument continues to validate (or invalidate) old-new distinctions in the regulation of utilities, the land-use context can serve as a useful conceptual guide. …