A historical understanding of emissions standards and ambient standards

courtesy Ohio Citizen Action

A recent article by Craig Oren in the Environmental Law Reporter shows how history can help us understand current issues in environmental law.

The article is a response to an argument by Richard Revesz and Jack Lienke in their book Struggling for Air "that there was a tragic flaw in the Clean Air Act (CAA) Amendments of 1970: the 'grandfathering' of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment." They "trace the flaw to the actions of Sen. Edmund Muskie (D-Me.), sometimes called the father of the CAA. Senator Muskie chaired the Subcommittee on Air and Water Pollution of the U.S. Senate Committee on Public Works, the subcommittee with legislative jurisdiction over the CAA. In the authors’ view, Senator Muskie and the U.S. Congress missed the mark by not requiring that existing power plants meet national emission standards." (For more on Muskie, see here.)

Oren's article shows how a familiarity with the legal (and political) context in which the law was enacted is necessary for understanding it's contours, still very much with us today. Some excerpts (footnotes omitted):

The philosophy behind the [CAA] was that air pollution sources should be regulated according to the harm they did to health rather than on the basis of what control technology happened to have been developed for the category of source. Thus, the 1970 Amendments established emissions standards for new cars that were based not on what was achievable, but on what was thought necessary to protect the public health. In this way, the amendments were “technology-forcing”—they mandated that the auto industry do what was needed. The stationary source provisions came out of a similar approach: a desire to make industry invest in developing new ways to control air pollution control.

To accomplish this, the 1970 Amendments called for EPA to promulgate national ambient air quality standards (NAAQS) at levels that would protect public health and welfare, and required that states develop for EPA approval state implementation plans that would bring areas with excessive air pollution into attainment—that is, compliance—with these standards. For the health-based standards, the plans had to demonstrate that areas in violation would come into attainment—within three years. If the sources did not do what was needed to meet the standards, they could be forced to clean up or be shut down.... While there would be national emissions standards for hazardous air pollutants such as carcinogens, these standards would be based on what was needed to give ample protection to public health and welfare, not on what was feasible to do.

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But in one respect—new stationary sources—the Act adopted a technology-based approach. If regulation of sources were based exclusively on what was needed to achieve the air quality standards, then areas with clean air would have an advantage in attracting and keeping industry over those that did not. This, Nixon Administration witnesses testified, would undercut efforts to establish tough emission standards for new sources in dirty-air areas by shifting new sources to clean-air areas. This “site-shifting” would as a practical matter destroy air pollution abatement efforts by making them politically unpalatable, particularly to labor unions in urban areas that wanted to prevent plants from abandoning the Northeast for the South as the textile industry had done.

The Nixon Administration’s witnesses endorsed the idea that the federal government establish “new source performance standards” based on what could be done by new and modified sources using the best demonstrated technology. But there was no similar provision for existing sources because the rationale for the new source standards—the fear that clean air areas would have an untoward advantage in competing for new industry—did not apply to existing sources. Thus, existing sources were not “grandfathered”—that is, excluded from regulation—simply because they would have high compliance costs, but rather because the rationale for technology-based regulation of new sources did not apply to existing sources.

There was only one situation in which existing sources had to install the best technology. Suppose EPA set a new source standard for, say, pulp and paper mills that covered emissions of odiferous total reduced sulfur, a pollutant that is not regulated either by national air quality standards nor by hazardous air pollutant standards. In this instance, existing pulp and paper mills also would be subject to the new source performance standard for total reduced sulfur—but Congress stipulated that the states, in applying the standards, would be allowed to take into account the remaining useful life of the source. This provision, §111(d), was a gap-filler for pollutants that did not fall under the air quality standards or hazardous air pollutants. Indeed, it was rarely used—one environmental lawyer has called it the 40-year-old virgin of the CAA—until EPA decided to make it the basis for its recent Clean Power Plan to reduce utility emissions of greenhouse gases.

Regarding the argument that the Clean Water Act did contain national emissions standards for existing sources, showing that this approach was politically feasible, Oren writes that the context in which the CWA was enacted:

was far different from that of the CAA. There already was a technology-based permit program, administered by the U.S. Army Corps of Engineers and EPA, for existing dischargers of water pollution. This program had been established in response to two U.S. Supreme Court decisions holding that the Refuse Act of 1897 barred discharges into the waters of the United States [US v Republic Steel Corp (1960); US v Standard Oil Co (1966)]....

Moreover, Senator Muskie’s environmental quality approach could not work for water because it would not be possible to have uniform standards for water, which can be salty, brackish, or fresh; air, by contrast, is alike everywhere. In addition, the environmental quality-based approach had been tried and failed with water pollution, in part because of the difficulty of relating discharges by sources to water quality. Thus, Senator Muskie could retreat from the environmental quality-based CAA approach without hurting health or the environment. While the CWA does contain mandates for states to set water quality standards and to regulate sources to meet those standards, this program has been, to put it mildly, slow to take hold.