Strong, New Clean Air Bill May Follow Vacated CAIR

Jul 29: Brian McLean Director of the Office of Atmospheric Programs within EPA’s Office of Air and Radiation testified at today's Senate Environment and Public Works Subcommittee hearing on the Clean Air Interstate Rule (CAIR) [See WIMS 7/29/08] and our Agency's preliminary assessment of how the recent D.C. Circuit Court decision vacating that rule [See WIMS 7/14/08] may affect EPA’s air quality programs, including its cap-and-trade programs. CAIR is a program designed to help states address interstate transport of emissions, similar in design to an approach EPA successfully employed in the 1990s to address significant ozone problems in the eastern United States. When the D.C. Circuit vacated the CAIR in the case of State of North Carolina v. U.S. EPA on July 11, it said it contained, "several fatal flaws" and vacated the rule in its entirety and remanded it to EPA.

McLean said, "The Clean Air Interstate Rule contains three regulatory programs intended to support the efforts of 28 eastern states and the District of Columbia to meet their obligations to attain the fine particle (PM2.5) and ozone standards. It is the linchpin of EPA’s program to improve air quality and EPA’s most significant action to protect public health and the environment since the passage of the 1990 Clean Air Act Amendments (Act)."

He said EPA expected that by the end of 2008, 21 states would have SIP approval for the complete CAIR SO2 program; 23 states would have SIP approval for the complete CAIR NOx trading programs; four more states would have SIP approval covering NOx allowance allocations; and the remainder would be covered by the FIP trading programs. Since the court decision, however, he said the Agency has seen the growing concern in the markets and a collapse in SO2 and NOx allowance prices and the significant decline in trading activity. He said, "Clearly, the Court decision vacating CAIR in its entirety creates uncertainties that could cause setbacks in air quality and environmental benefits and negatively affect the health and well being of citizens in the CAIR region [28 eastern states and the District of Columbia]."

McLean indicated that EPA is continuing to evaluate further litigation options; however, he said assuming the decision stands it will have a ripple effect that "will delay and could impede significant clean air programs and activities throughout the eastern U.S." The first major category of affected programs involves requirements for state planning for clean air.

In conclusion, EPA testified that, "Although issues were raised by some stakeholders, the reductions and approach of CAIR were broadly accepted. While it is too early to fully assess the damage to our air quality programs and the health and environmental protection they were designed to achieve, the court decision to vacate CAIR poses significant concerns in implementing the CAA provisions. These include the significant burdens imposed on the states in meeting their CAA obligations (such as the near term deadlines for the PM2.5 and ozone NAAQS); a potential increase in emissions from power plants associated with precipitous declines in allowance values; and possible air quality degradation with implications for ecosystems, acid deposition, and human health. . .

". . .we are most concerned about the impacts to public health and welfare and the environmental damage that could result from companies which may now decide to shift to cheaper, higher-sulfur fuels; or choose not to install a scrubber for SO2 emissions on older boilers; or limit use of their control systems to save operating costs and increase plant efficiency. Another concern is the implications of the court decision on the future of cap-and-trade programs. . . In the wake of the Court’s decision, EPA and the states in the CAIR region will need to work together to develop strategies to protect public health and the environment. EPA will earnestly be considering all options over the next few weeks.

Senator James Inhofe (R-OK) and Ranking Member of the full committee said, "Three years ago I stated that 'CAIR is significantly more vulnerable to court challenges than Clear Skies would have been and will undoubtedly be held up, not unlike the Clinton administration's 1997 air quality standards. This latest round of litigation demonstrates the need for a strong national Clear Skies law more than ever.' Well, today, here we are, and unfortunately that statement has rung true. As I stated back then, “Trying to litigate the way to cleaner air only delays progress, often yields little or no result and wastes millions in taxpayer dollars.” Now we are faced with a full vacating of the entire Rule, which, ironically enough, is a litigation result that no party actually wanted. In addition, we face an uncertain regulatory future, and most importantly, we have thrown into jeopardy the health and environmental benefits that CAIR would have achieved–estimated to have benefits over 25 times greater than their costs by the EPA. I also note that this decision certainly doesn’t bode well for those people who say we can structure flexibility into regulating carbon under the Clean Air Act. . ."

Senator Tom Carper (D-DE), Chair of the Subcommittee on Clean Air and Nuclear Safety that held the hearing said, "Congress must pass clean air legislation now that a recent court ruling has brought many clean air remedies to a halt and created difficulties and confusion for the federal government, east and mid-western states, companies and environmental groups alike. As Albert Einstein once said, ‘in the middle of every difficulty lies opportunity.’” He said Congress has a new opportunity to craft comprehensive national clean air legislation that protects and improves public health.

Carper said, “As many of you know, Delaware struggles to meet its clean air goals because we’re located -- along with our neighbors -- at the end of America’s tailpipe. We simply can’t clean up our air along the eastern seaboard unless upwind states meet their obligations." He said, ". . .eight years have gone by without any meaningful, substantive action on the clean air debate. This inaction means tens [of] thousands of Americans will die prematurely from lung-related deaths who didn’t have to die. It means that Congress and this White House failed to do what’s right.”

He said in addition to the hearing, he will hold other hearings and roundtables on these clean air issues throughout the fall to highlight various perspectives on how to move forward on clean air legislation. He said, "Let me be clear. I’m not going to wait another eight years to do what we should have done eight years ago, and that is pass a strong, comprehensive clean air bill that makes deep and meaningful reductions in mercury, nitrogen oxide and sulfur dioxide.”

Carper concluded that Congressional legislation is necessary to get air pollution control out of the courts and ensure actions are taken on schedule; new law must cover the whole country not just the eastern United States; and new legislation will address not only SO2 and NOx, but also toxic mercury emissions (The D.C. Circuit also vacated EPA’s mercury rulings, State of New Jersey v. EPA) [See WIMS 2/8/08] and global warming caused by carbon dioxide. Last year, Senator Carper introduced his Clean Air Planning Act of 2007 (CAPA), which he said would significantly reduce unhealthy emissions of mercury, as well as the harmful pollutants (nitrogen oxide and sulfur dioxide) that produce smog and acid rain. In addition, this four-pollutant bill would set up a mandatory cap-and-trade program for utilities to reduce their emissions of carbon dioxide, which causes global warming.

Others testifying at the hearing included representatives from: New York Department of Environmental Conservation; PSEG; PPL Corp.; Ohio EPA; and Natural Resources Defense Council.

Access the Subcommittee hearing website for links to a webcast of the hearing and testimony, including Senator Inhofe's opening statement (click here). Access a release from Senator Carper (click here). [*Air]