Clean Air Issues: Clear Skies Initiative/Multi-Pollutant Regulation
(5-10-06)

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In recent years Congress has considered a number of bills to amend the Clean Air Act of 1990. They mostly have been aimed at reducing emissions released by power plants and creating comprehensive legislation to reduce the current number of regulations affecting power plants. The various bills differ mainly in which pollutants should be controlled, the amount of reduction in emissions of each pollutant, and the time frame for implementation. Two main categories of legislation have developed: three-pollutant varieties (includes the President's Clear Skies Initiative) that regulate sulfur dioxide (SO2), nitrogen oxides (NOx), and mercury; and four-pollutant varieties that also include carbon dioxide (CO2).

Recent Action

Bipartisan Group Introduces New Clean Air Legislation
On May 3, a bipartisan group of senators led by clean air subcommittee ranking member Tom Carper (D-DE) introduced the Clean Air Planning Act of 2006 (S.2724), aimed at making significant reductions in mercury, nitrogen oxides (NOx), sulfur dioxide (SO2), and carbon dioxide (CO2) emissions from power plants. According to Carper's press release on the bill, S.2724 is a "new and improved" version of clean air legislation introduced by Carper in the 108th Congress.

"For too long, clean air legislation has been stymied by politics as usual, and that has to change," said Carper. "This is the only bill that has attracted support from the utility industry, environmental groups, and a bipartisan group of lawmakers. It shows that consensus on environmental legislation is possible if we work together to get things done." Senator Lincoln Chafee (R-RI), a cosponsor of the bill, said, "If we, as a Congress, are serious about improving air quality, this is the legislation everyone should support."

Emissions controls in the legislation are stricter than those in the new Clean Air Interstate Rule (CAIR) at the Environmental Protection Agency (EPA) or than those proposed by the President's "Clean Skies" Initiative (S.131). "When it comes to clean air, we can do better than current law and we can do better than the President's plan," Carper said. Specifically, the legislation would require every power plant to capture 90 percent of the mercury in the coal burned in the plant by 2015; reduce SO2 emissions by roughly 82 percent by 2015; and reduce NOx by nearly 68 percent by 2015. To reduce NOx emissions, the bill would set up two cap-and-trade programs, one in the eastern U.S. and one in the western U.S. to "ensure that NOx pollution is reduced in the area where it causes the most health and environmental problems," according to Chafee's press release on the bill.

The legislation would also institute a cap-and-trade program for CO2 emissions from power plants in an attempt to slow human-induced climate change. Emissions would be capped at 2006 levels in 2010, and would decrease to 2001 levels by 2015. Power plants could satisfy emissions requirements by reducing CO2 output or by buying CO2 credits from other industries. EPA analyses estimate that under this program, the cost to reduce carbon emissions would only be $1 per ton. "This is a bill that will make significant strides toward improving our air quality and reducing our greenhouse gas emissions at a reasonable cost that industry can afford," said cosponsor Senator Dianne Feinstein (D-CA).

In addition to Carper, S.2724 is cosponsored by Senators Lamar Alexander (R-TN), Lincoln Chafee (R-RI), Judd Gregg (R-NH), and Dianne Feinstein (D-CA). The bill has been referred to the Senate Committee on Environment and Public Works, but no further action has been planned at this point. For more information on the legislation, see the press releases from Senators Carper, Alexander, and Chafee. (5/10/06)

Previous Action

Diesel Emissions Regulations Proposed
On June 30, 2005, new rules were proposed by the Environmental Protection Agency (EPA) to limit air pollution emitted by stationary diesel engines. The proposal marks the first time that stationary diesel engines, found in power plants and factories, will be subject to EPA air quality regulations. However, the regulations will only apply to engines manufactured or reconstructed after April 2006, when the rule becomes effective. The rules will not affect an estimated 600,000 operating stationary diesel engines. EPA expects that by 2015 the 68,000 tons of pollutants currently in the atmosphere will be annually reduced due to the new regulation. The pollutants mentioned in the proposed rules include nitrogen oxides, sulfur dioxide, carbon monoxide, hydrocarbons and particulate matter. The EPA has scheduled the regulations to be phased in over the next ten years and will submit the final draft of the proposal within a year, allowing time for the public to comment on the rules.

Under the Bush administration, a total of three rules have been created to lower pollution from diesel fuel engines, according to Environment and Energy Daily. Standards for diesel engines used in trucks and buses went into effect in 2002 and in 2004 the EPA began regulating diesel engines in tractors, bulldozers and off-road vehicles. Currently under development is a set of diesel regulations for locomotives and marine engines.

Senator George Voinovich (R-OH), along with 7 bipartisan co-sponsors introduced the "Diesel Emissions Reduction Act of 2005" (S.1265), which would provide $1 billion to state and local agencies to reduce diesel emissions over the next 5 years. The bill was attached to the Senate energy bill, which passed 94 to 0 on June 28, 2005. On July 12th, the Senate Environment and Public Works Subcommittee on Clean Air, Climate Change, and Nuclear Safety held a hearing on the bill as a precaution in case lawmakers fail to come to an agreement over the energy bill in the coming weeks. (7/15/05)

Controversial Clean Air Provision Included in Energy Policy Act
A small clean air provision within this year's energy bill promises great debate in congress over the coming months. The provision, which is tucked into a title called "miscellaneous" in H.R.6, the Energy Policy Act of 2005, would allow communities that don't meet the EPA's 8-hour ozone standard to delay compliance if they can prove their primary source of local pollution derives from upwind states.

Opponents of the provision argue that it would undermine the Clean Air Interstate Rule (CAIR), a multi-pollutant cap-and-trade program for northeastern states that was finalized in March. CAIR addresses windblown pollution by holding states and industrial sources accountable for the same emissions cap. According to opponents, municipalities can use the relaxed deadlines to delay emissions reductions for secondary sources of smog within their borders, resulting in a domino effect delaying emission reductions by 10 years as neighbors all wait for each other to reduce their pollution, according articles in the New York Times and Environment and Energy Daily (E&E Daily). E&E Daily further reported that exempted areas could also avoid New Source Review requirements, relax the use of reformulated gasoline, and remove the consideration of local air pollution from federal transportation projects.

House Energy and Commerce Committee Chairman Joe Barton, who added the provision to this and last year's energy bills, rejected these claims. He and other proponents of the provision say that it provides local governments with the ability to deal fairly with local emission controls, such that local industries don't have to overcompensate for upwind polluters. "I'm trying to make the law more implementable," said Barton, according to the New York Times, "I live in the real world, where it's a lot tougher to meet arbitrary standards in an area that's growing and where more people are driving cars and trucks." EPA air chief Jeff Holmstead announced the EPA's endorsement of the provision on April 19. According to E&E Daily, Holmstead stated: "[the provision] really is designed to reflect the fact that we need to strike the right balance between upwind controls and local controls of air pollution." (4/25/05)

EPA Introduces Clean Air Interstate Rule
On March 10, 2005, U.S. Environmental Protection Agency (EPA) Acting Administrator Stephen Johnson signed the Clean Air Interstate Rule (CAIR), which is expected to reduce sulfur dioxide (SO2) emissions by more than 70 percent and nitrogen oxide (NOx) by more than 60 percent by 2015. Similar to the "acid rain program," which has successfully reduced these emissions in Northwestern states, utilities operating in 28 Eastern States and the District of Columbia are to engage in a cap-and-trade system in order to meet these industry-wide limits. According to Enviroment and Energy Daily, the EPA has estimated CAIR will cost the power industry $17 billion in implimentation costs, and will dramatically reduce annual health costs by $85 billion - $100 billion.

The EPA issued a separate cap-and-trade mandate for mercury that is closely linked with the CAIR rule on March 15, 2005. This first phase of caps would reduce emissions from 48 to 38 tons per year by 2010, and would be reached as a collateral beneift of CAIR. The second phase of limits would reduce national emissions to 15 tons per year by 2017, a 70% reduction. One environmentalist said the trading of a neurotoxin such as mercury would be "unprecedented and illegal," according to the Washington Post. Several groups are poised to file law suits on the grounds that the rule violates an earlier EPA determination, which classified mercury as a "hazardous air pollutant" that must be regulated at each of the country's 1,300 coal-fired power plants. Before issuing the rule, the Administration decided to officially overturn this finding, which was issued in December, 2000. (3/15/05)

Clear Skies Bill Defeated in Committee
The Senate Environment and Public Works Committee defeated the highly controversial Clear Skies Bill (S. 131) in a 9-9 vote during the bill's mark-up on March 9, 2005. After three weeks of negotiations, which failed to resolve the deadlock, Committee Chairman James Inhofe (R-OK) decided to hold the mark-up in order to move forward with other priorities, namely the highway bill. In statements made prior to the vote, those who supported the bill continued to insist that it was the most aggressive anti-pollution legislation in the nation's history, while those opposed asserted the Clean Air Act would protect the country better. Sitting behind a pile of papers representing the 40,000 pages of Clear Skies analyses, Senator George Voinovich (R-OH) criticized the opposition for resting recent negotiations on a new request to obtain EPA modelling information, rather than addressing key issues. Opposition members contend that such unbiased analyses have been intentionally blocked, inhibiting negotiators from reaching a compromise. Senator Tom Carper (D-DE) argued, "information we requested from the EPA two years ago is not in that pile!" adding, "the EPA needs to provide unbiased information. For the last three years they've been constrained from doing that."

Although dissenting members announced their willingness to drop CO2 provisions in exchange for stronger SO2, NOx and mercury caps, most censured the bill's lack of recognition regarding the effects of carbon dioxide emissions. "I'm disappointed that Congress is the last bastion of denial on climate change," declared Senator Lincoln Chafee (R-RI).

Those in favor of S. 131: Sens James Inhofe (R-OK), George Voinovich (R-OH), Kit Bond (R-MO), John Warner (R-VA), Lisa Murkowski (R-AK), Jim DeMint (R-SC), John Isakson (R-GA) and David Vitter (R-LA). Those against S. 131: Sens. Tom Carper (D-DE), Jim Jeffords (I-VT), Lincoln Chafee (R-RI), Joe Lieberman (D-CT), Max Baucus (D-MT), Barbara Boxer (D-CA), Hillary Rodham Clinton (D-NY.), Frank Lautenberg (D-NJ) and Barack Obama (D-IL). (3/9/05)

Jeffords Introduces Legislation With Strict Emissions Regulations
Senate Environment and Public Works Committee ranking member Jim Jeffords (I-VT) countered the Bush administration's legislative overhaul of the Clean Air Act for power plants on January 25th by reintroducing a bill (S.150) with far-stricter emission cuts on sulfur dioxide, nitrogen oxides and mercury, as well as first-ever restrictions on the greenhouse gas carbon dioxide.

According to Greenwire, the Jeffords plan takes a far more aggressive approach than the Clear Skies initiative by setting tight new cap-and-trade limits in 2010 for SO2, NOx and CO2. Caps for SO2 are 2.25 million tons, with NOx at 1.51 million tons and CO2 at 2.05 billion tons. Mercury reductions would not be accomplished with a trading program like Clear Skies, but rather with mandatory pollution controls on plants that would effectively reduce nationwide emissions by 2010 to 5 tons. The Jeffords plan also requires all power plants to install state-of-the-art pollution controls by its 40th birthday or 2014, whichever is later.

S. 150 was introduced with 19 cosponsors, one shy of the 20 that the bill had in the last Congress (2003). Jeffords is joined by Senate Governmental Affairs Committee Chairwoman Susan Collins (R-ME) and Sens. Joseph Biden (D-DE), Barbara Boxer (D-CA), Hillary Rodham Clinton (D-NY), Jon Corzine (D-NJ), Chris Dodd (D-CT), Russ Feingold (D-WI), Diane Feinstein (D-CA), Edward Kennedy (D-MA), John Kerry (D-MA), Frank Lautenberg (D-NJ), Joe Lieberman (D-CT), Jack Reed (D-RI), Paul Sarbanes (D-MD) and Ron Wyden (D-OR). (1/27/05)

Senator James Inhofe (R-OK), Chairman of the Senate Environment and Public Works (EPW) Committee and a cosponsor of Bush's alternative plan known as the Clear Skies initiative, S.131, introduced the bill on January 24th. It has only minor technical changes from last year's version.

Greenwire reported that Inhofe, Senate EPW Clear Air Subcommittee Chairman George Voinovich (R-OH) and the administration are working with limited time to pass into law the new amendments to the Clean Air Act, as the U.S. Environmental Protection Agency (EPA) is poised to issue a final regulation by mid-March known as the Clean Air Interstate Rule that sets Clear Skies-like limits on SO2 and NOx emissions for power plants. EPA also is facing a legal deadline of March 15 to complete a separate rule for mercury pollution from the electric-utility industry.

The Clear Skies bill sets SO2 limits of 4.5 million tons annually beginning in 2010, with a 3 million ton cap in 2018. NOx emissions under Clear Skies for the eastern and central United States are set at 1.562 million tons in 2008, with a 1.162 million ton cap after 2019. In the West, NOx limits are 0.538 tons after 2008. The Clear Skies bill also establishes a mercury cap-and-trade program with a 34 ton limit in 2010 and a 15 ton threshold after 2018.

Clear Skies also includes regulatory relief for the electric utility industry that exempts power plants from New Source Review requirements, while blocking EPA from granting a state petition to limit pollution from upwind sources via Clear Air Act Section 126. EPA would also be required under Clear Skies to redesignate any ozone or fine particulate matter nonattainment areas into a "transitional" category if they are capable of showing that the bill's anticipated pollution cuts, coupled with local controls, would bring them into federal compliance by 2015. (1/26/05)

Background

The Clean Air Act, which was last amended in 1990, requires the Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards for six pollutants - nitrogen dioxide, ozone, sulfur dioxide, particulate matter, carbon monoxide, and lead - considered harmful to the environment and public health. According to the EPA, approximately 90 million Americans live in areas that contain pollutant levels higher than the standards. In order to improve air quality around the country, recent efforts have sought to amend the Clean Air Act by dramatically decreasing emissions for two of the six pollutants (sulfur dioxide and nitrogen oxides) and initiating the first mercury power plant emission restrictions. While not disagreeing with the need to reduce pollutant levels, opponents also want to include regulating emissions of carbon dioxide, a greenhouse gas.

In July 2002, President Bush proposed his Clear Skies Initiative that would cut power plant emissions by 70% for sulfur dioxide (SO2), nitrogen oxides (NOx), and mercury, through a cap-and-trade program. Challengers of Clear Skies disagree with the timeline over which the emission cuts are made and that it only advocates voluntary reductions of carbon dioxide (CO2) emissions.

In 2003, three competing bills jockeyed their way through the Senate Environment and Public Works Committee. One was S.1844, Senator James Inhofe's (R-OR) modified version of the Bush administration's Clear Skies Initiative which would have limited mercury emissions to 34 tons annually, allowing 8 more annual tons than in the original proposal. Another was Senator James Jefford's (I-VT) four pollutants bill (S.366) which mandated tougher pollutions standards including CO2. A third bill was Senator Lamar Alexander and Senator Thomas Carper's (R-DE) Clean Air Planning Act (S.843) which was touted as a compromise bill between S. 1844 and S.366. None of these bills reached the floor.

Air quality has deteriorated since 2001 according to a June 23, 2004 EPA Toxics Release Inventory (TRI) report. The agency reported that toxic emissions rose 5 percent from 2001 levels to 4.79 billion pounds in 2002. The data did not include mining industry emissions because metals in waste rock are not subject to TRI. The increase is partially due to the dismantling of a BHP Copper Company smelter in Arizona. Without this project, TRI emission levels would have decreased by 3 percent from 2001 levels.

For additional information see AGI's Update on Clean Air Issues from the 108th Congress, AGI's Update on Mercury Policy, and the Congressional Research Service report provided by the National Library for the Environment.

Sources: Environmental Protection Agency, Environment and Energy Daily, Greenwire, New York Times, Environmental and Energy Study Institute, Thomas website, press releases for Senators Carper, Chafee, and Alexander, and hearing testimony.

Contributed by Emily Lehr Wallace, AGI Government Affairs Program; David Millar 2004 Fall AGI/AAPG Intern; Katie Ackerly, AGI/AAPG 2005 Spring Intern; Amanda Schneck, AGI/AIPG 2005 Summer Intern; John Vermylen, 2005 AGI/AIPG Summer Intern; and Jenny Fisher, 2006 AGI/AAPG Spring Intern.

Background section includes material from AGI's Update on the Clearn Air Act for the 108th Congress.

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on May 10, 2006.