Clean Air Act
This post first appeared today in the National Journal Energy & Environment Experts blog.
As with many aspects of climate policy, there is some truth to the arguments on both sides of the debate over how federal legislation should treat state action and EPA Clean Air Act (CAA) authority. The answer is less about who is right or wrong and more about appropriately balancing the strengths and weaknesses brought to the table by states and the federal government. Both have important roles to play in a strong federal climate and clean energy program.
When the Congress returns from Easter Recess next week, 116 days will remain on the legislative calendar before Election Day on November 9. This relative dearth of time has led some proponents of climate action to worry whether there is enough political appetite for Congress to pass comprehensive climate and energy legislation while midterm elections loom. Certainly, the November elections are on the minds of legislators. However, elections have always factored into Congressional decision-making and action. Government accountability through elections is what our Republic is founded on, after all. Despite impending campaigns, nearly every major environmental law of the last 40 years has been passed during an election year.
In general, Congress has a history of making big policy decisions during election years. USA Today recently found that over the last 20 years, Congresses have actually passed 70% more laws in election years than in other years. What’s more is that these laws are not just limited to post office dedications and other less-than-essential topics. Comprehensive legislation has often passed in election years, including the 1994 crime bill, 1996 welfare reform, 2002 McCain-Feingold campaign finance reform, and even the health care reform bill this year.
Turning specifically to environmental laws, 22 major laws (listed below), beginning with the National Environmental Policy Act signed in 1970, were enacted in election years. For example, October 1986 – just weeks from Election Day – saw the passage of significant amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).
A clear precedent for climate change legislation passing in 2010 is the Clean Air Act amendments that passed in late 1990. Just as President Obama campaigned on passing climate legislation, President George H.W. Bush campaigned to enact new air pollution laws. Bush worked with a group of bipartisan legislators to have a revolutionary package of amendments introduced in the House by Rep. Dingell (D-MI) and in the Senate by Sen. Chafee (R-RI). This package included a cap-and-trade program for power plant emissions of acid rain-causing NOx and SO2. After the bipartisan bills easily passed both chambers by mid-year, the conference committee, led by Sen. Baucus (D-MT), agreed to a compromise bill that passed 401-25 in the House and 89-10 in the Senate. Passage occurred by these wide, bipartisan margins on October 26 and 27 – not bad for two weeks before an election.
Comprehensive climate and energy legislation should be the next in the series of major environmental laws passed in a midterm election year. Like the Clean Air Act amendments of 1990, other environmental laws have required bipartisan compromise. Democrats and Republicans have had to reach agreement on environmental policy before and they can do so again, even in an election year. Making good public policy is the best politics, and a strong bipartisan effort on the serious challenge of climate change is something that both parties should be accountable for in November.
- National Environmental Policy Act (1970)
- Clean Air Act Amendments (1970)
- Occupational Safety and Health Act (1970)
- Marine Mammal Protection Act (1972)
- Coastal Zone Management Act (1972)
- Clean Water Act (1972)
- Safe Drinking Water Act (1974)
- Fisheries Conservation and Management Act (1976)
- Toxic Substances Control Act (1976)
- Resource Conservation and Recovery Act (1976)
- Federal Land Policy and Management Act (1976)
- Comprehensive Environmental Response, Compensation and Liability Act (1980)
- Nuclear Waste Policy Act (1982)
- Superfund Amendments and Reauthorization Act (1986)
- Emergency Planning and Community Right-to-Know Act (1986)
- Ocean Dumping Act (1988)
- Shore Protection Act (1988)
- Oil Pollution Act (1990)
- Clean Air Act Amendments (1990)
- Pollution Prevention Act (1990)
- Food Quality Protection Act (1996)
- Safe Drinking Water Act Amendments (1996)
Environmental laws passed in non-election years include:
- Endangered Species Act (1973)
- Clean Air Act Amendments (1977)
Michael Tubman is the Congressional Affairs Fellow
The menu of policy options for reducing greenhouse gas emissions and tackling climate change is pretty lengthy, and the portions offered are quite substantial. Congress now has to make the choice of which regulatory option to order, and as we saw in last week’s hearings at the Senate Environment and Public Works Committee, they are open to recommendations. One interaction on Thursday between Senator Arlen Specter (D-PA) and Fred Krupp, President of the Environmental Defense Fund, highlighted the need to pick a single, effective strategy to tackle climate change and not overstuff our economy with duplicative regulations. The exchange focused on whether the EPA should continue to proceed with regulations through the Clean Air Act’s New Source Review (NSR) program even if a comprehensive climate change program is enacted.
Given existing requirements, regulation of greenhouse gases under any provisions of the Clean Air Act will trigger NSR. Under NSR rules, the construction of new stationary sources and major modifications of existing ones must be permitted to ensure that they will not contribute to significant deterioration of air quality. While NSR has long been used to regulate traditional air pollutants, when it comes to feeding an appetite for climate change regulation, NSR doesn’t really hit the spot. NSR is rather inflexible, costly to implement, and results in relatively limited emission reductions. Given the difficulty in developing standards for the large number of sources that emit greenhouse gases and the need to provide incentives for technological change in order to achieve deep reductions over time, new source review simply isn't the right recipe for our current needs.
This chef’s recommendation: a well-designed cap-and-trade program that is aggressive enough to yield needed reductions in greenhouse gas emissions while spurring the technological innovations we need to make those reductions and grow our economy. Enactment of a cap-and-trade program means we can send back duplicative programs like NSR and still be satisfied.
Sure, we’ll need complementary policies that work in a coordinated fashion with a cap-and-trade program. These side dishes of the cap-and-trade meal are targeted programs that are designed to enhance cap-and-trade’s impacts without getting in the way of the functioning of the primary program. A comprehensive climate bill can work just fine without NSR.
Michael Tubman is the Congressional Affairs Fellow
EPA has proposed what many are calling the Agency’s first major step down the road to regulating greenhouse gas emissions from stationary sources. The newly proposed “tailoring” rule applies to requirements for major new or expanded sources and to permits for stationary sources, but does so in a carefully targeted manner. It’s the right place for EPA to start.
It’s critical to understand both what the proposal does and doesn’t do, and why EPA needed to begin here.
Contrary to some press accounts, the proposed rule does not impose new control requirements on all large stationary sources. Best available control technologies would be required only of new stationary sources that emit over 25,000 tons per year or major modifications to existing sources that increase emissions by 10,000-25,000 tons per year – a range EPA sought comment on. If yours is not one of the estimated 400 major new or modified facilities each year, you do not face any (new or old) control requirements limiting greenhouse gas emissions.
The proposal also requires that EPA (and states) include greenhouse gas emissions in the permits of roughly 14,000 facilities that emit more than 25,000 tons per year of these pollutants. These permits do not impose any new controls on any source; they simply incorporate into a permit EPA’s new mandatory reporting requirements.
On June 30, 2008, Judge Moore of Georgia’s Fulton County Superior Court revoked a permit for construction of a proposed 1200-megawatt coal-fired power plant in the state. Ruling in favor of the plaintiffs, Judge Moore found that the permit filed by Longleaf Energy and approved by the Georgia Environmental Protection Division failed to consider the best available pollution control technology (BACT) to mitigate harm caused by the proposed plant’s estimated annual emissions of 8-9 million tons of CO2. The defense had argued that a BACT analysis was unnecessary because CO2 is not a pollutant subject to regulation under the Clean Air Act (CAA). In rejecting the defense’s argument, Judge Moore cited the U.S. Supreme Court’s April, 2007 decision in Massachusetts v. EPA, in which the Court found that CO2 does qualify as a harmful pollutant that the United States Environmental Protection Agency must consider regulating under the CAA. The ruling in Georgia marks the first instance in which a permit has been revoked in court due to concerns over CO2 emissions. The defendants plan to appeal the ruling.
Our Analysis of Massachusetts v. EPA