Modernizing the Clean Air Act: Is There Life after 40?

By Nordhaus, Robert R. | Energy Law Journal, July 1, 2012 | Go to article overview
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Modernizing the Clean Air Act: Is There Life after 40?


Nordhaus, Robert R., Energy Law Journal


Synopsis: The Clean Air Act (CAA or "the Act"), as it was fashioned in 1970 and revised in 1977 and 1990, was a major environmental law milestone that became the model, in whole or part, for virtually every subsequent federal environmental statute. It has clearly reduced emissions and improved air quality. There are, however, a number of fundamental design flaws and structural limitations in the original statutory scheme, its subsequent amendments, and its administration that have limited the CAA's effectiveness in protecting public health, driven up compliance costs, and spawned political controversy and litigation. These design issues include the "grandfathering" policies, over-reliance on state implementation plans to carry out much of the regulatory system, the Act's interstate transport provisions and the "layering" of overlapping regulatory requirements on the same source. This article reviews these design issues and suggests two alternatives that could make the regulatory system more effective, reduce the extent to which regulatory outcomes are dependent on litigation, and increase the cost-effectiveness of air quality regulation. The first alternative would refine and streamline the Act's multiple existing regulatory programs; the second would fundamentally restructure the statute to eliminate a number of overlapping or redundant regulatory requirements, clarify the respective roles of the EPA and the states, expand emissions trading authority, and accommodate greenhouse gas regulation.

I. INTRODUCTION

The fortieth anniversary of the enactment of the modern Clean Air Act1 - 2010 - produced a blizzard of retrospective reviews of the Act focusing on its innovative design, its successful reduction in emissions and its improvements of air quality. The Act, as it was fashioned in 1970 and revised in 1977 and 1990, undeniably was a major environmental law milestone. It provided clear requirements for development and implementation of federal ambient air quality standards, new source performance standards, hazardous air pollutant regulation, and tailpipe standards for mobile sources. It also included statutory deadlines, publicly available monitoring reports, and provisions for citizens' suits, as well as far-reaching federal and state enforcement provisions. Its design became the model, in whole or part, for virtually every subsequent federal environmental statute2 and it undeniably has reduced emissions and improved air quality.3

The 2010 mid-term congressional election and an ambitious Environmental Protection Agency (EPA) CAA rulemaking agenda (characterized as the "train wreck" by its electric utility opponents)4 brought a less supportive reaction from Capitol Hill in 2011 and 2012. The House passed (and the Senate refused to consider) prohibitions on CAA regulation of greenhouse gas (GHG) emissions and on stiffer standards for fine particulate matter.5 It also approved bills abrogating hazardous air pollution standards for industrial boilers,6 cement kilns,7 and electric generating units,8 as well as legislation requiring consideration of costs in setting ambient air standards.9 These actions were accompanied by a drumbeat of hearings, letters, and press releases sharply questioning the EPA's authority and the policy basis for its proposed or final rules. 10

Leftunmentioned in 2010's congratulatory reviews, and the subsequent Capitol Hill political din, were a number of fundamental design flaws and structural limitations in the original statutory scheme, its subsequent amendments and its administration, which have limited the CAA's effectiveness, unnecessarily drove up compliance costs, spawned political controversy and seemingly endless litigation, and arguably retarded rather than advanced deployment of efficient, low emission technologies. These design issues include the "grandfathering" policies which were embedded in the 1970 Act and subsequent amendments, extensive reliance on state implementation plans to carry out much of the regulatory system, the Act's interstate transport provisions, and the "layering" of multiple (and sometimes redundant) regulatory requirements on the same source.

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Modernizing the Clean Air Act: Is There Life after 40?
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