Air and Atmospheric Quality Policy (1/5/11)
Current air and atmospheric quality policies are based on the Clean Air Act of 1990. In recent years amendments have been added to the act, but there has been no major overhaul of the air quality legislation for almost three decades. The Clear Air Act defines emission standards for power plants, motor vehicles, aircrafts, as well as defining measures for pollution prevention and ozone protection. Air and atmospheric quality encompasses all range of policy relating to pollution, ozone protection, acid rain, and greenhouse gas (GHG) emissions. A Supreme Court decision in 2007 suggested that the Environmental Protection Agency (EPA) could regulate carbon dioxide as a pollutant under the Clean Air Act, however, efforts to make EPA consider this failed in the previous Congress. Stricter emission standards, regulations regarding greenhouse gases and further amendments to the Clean Air Act are possible in the 111th Congress.
EPA Starts and Stalls on Climate Change Regulations
The EPA will also begin to formulate rules for regulating greenhouse gas emissions from existing power plants and refineries. The rules would be “modest” and their formulation and implementation would be delayed. The rules for power plants should be finalized by May 26, 2011 and the rules for refineries should be finalized by November 10, 2012. This plan is part of an agreement between EPA, states and environmental groups. EPA faces potential lawsuits from environmental groups over its failure to follow the Clean Air Act and intense opposition from industry over costs and the burdens of regulations.
More recently, Senator John Rockefeller (D-WV) has sponsored legislation to delay EPA rulemaking by two years, until the economy has more fully recovered from the current recession. That bill, the Stationary Sources Regulations Delay Act (S. 3072), has received support from 6 Democrats, and Senate Majority Leader Harry Reid (D-NV) has promised Rockefeller that he would schedule a vote on the bill in the lame duck session. The bill itself is largely symbolic, given that President Obama has pledged to use his veto power. If the measure were attached to an appropriations bill, however, a veto would be more difficult. Understanding that opportunity, Murkowski has suggested she would add a rider for the EPA appropriations bill to be marked up on September 14. She indicated that four Democrats on the Appropriations Committee were considering supporting such a measure. Senator Dianne Feinstein (D-CA), the Chair of the Subcommittee on Interior, Environment, and Related Agencies argued otherwise: that Democrats would defend the EPA, but she was forced to cancel the markup the day before as Democrats wavered and because the Administration sent a budget amendment regarding the reorganization of the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE).
It is likely that additional challenges to the rulemaking will be raised in 2011, but barring further action, the NSR rules will take effect in January 2, with a second group of facilities to be covered starting July 2011. The January date and the rulemaking itself are legally required of the EPA as part of its responsibilities to follow the Clean Air Act (CAA). Under the act, the EPA is required to establish NSR standards for any pollutant regulated under another section of the act. Under Title II of the CAA the EPA currently regulates GHG standards for vehicles, and the first of those vehicles will be delivered from the assembly line on January 2, 2011, thus triggering requirements under other parts of the act.
These rulemakings are currently being challenged in several court cases, on the grounds that the EPA is overstepping its authority to regulate under the CAA. The EPA, in turn, and the Department of Justice (DOJ) have argued in a brief that the EPA is bound by law to regulate carbon dioxide and other GHGs. They point to the Supreme Court’s 2009 decision in Massachusetts v. EPA that charged the EPA with regulating GHGs if they found them to be a danger to public health. The EPA fulfilled that criterion when it released its endangerment finding in 2008. The finding referenced, for example, the link between hotter temperatures, higher ozone concentrations, and premature deaths, and the common increase in deaths associated with heat waves.
Not all stationary sources will be permitted under the rulemaking. Though the CAA typically covers sources that emit more than 100 tons per year, EPA completed a tailoring rule to cover only “major” sources that emit more than 75,000 tons per year. EPA made that decision under the legal premise that state regulatory agencies could not possibly permit all the facilities required by the law. That rulemaking significantly decreases the number of facilities covered in the first phases of the rulemaking. Under the strict requirements of the CAA, about 82,000 new facilities each year would be covered. The tailoring rule cuts that number to only 668.
Senators still object to what they view as a threat to manufacturing jobs and industrial development. Others have questioned the usefulness of BACT standards and object to the uncertainty inherent to those standards. BACT, by definition, is a site-specific metric that fails to adopt universal requirements. In general, the permits would cover things like what type of boilers are used, how leaks will be avoided, and what type of coal a power plant burns. In contrast, the EPA’s other permitting tool under the CAA, New Source Performance Standards (NSPS), offers much more standardized requirements. These regulations require a longer rulemaking process and likely will not be available until 2012.
Less controversial EPA measures have already started addressing GHG emissions. As mentioned above, the EPA has raised fuel economy standards as part of its CAA plan for GHG regulation. For 2011 to 2016, those standards will climb from 28.7 miles per gallon (mpg) to 32.7 mpg, as an average for light-duty trucks and passenger cars. Those standards will rise even further under the EPA’s proposed rulemaking, to levels as high as 47 to 62 mpg by model year 2025. A notice of intent was released by the EPA in September, outlining those goals and opening a public comment period.
Under a different regulation, the EPA has implemented a GHG reporting rule for major emitters with 25,000 tons of carbon dioxide emissions per year. Should a cap and trade program be adopted in the U.S., the GHG reporting would provide a baseline for emissions, and a means of measuring compliance with new rules. Some controversy has arisen over how GHG sources would be aggregated to constitute a major source. The oil and gas industry, in particular, has fought rulemakings that would sum the emissions for all the oil or gas wells in a single field.
The EPA is affecting energy production through traditional air quality regulations as well. Currently, the agency is revising the National Ambient Air Quality Standards (NAAQS) for its criteria pollutants including mercury and ozone. These revisions are part of their 5-year review process; they would require retrofits for the most-polluting coal-fired power plants, and may force several of these to shut down. Portland General Electric’s coal-fired power plant, for example, has signaled that it will shorten its expected lifespan by 20 years and close in 2020 due to EPA regulations. By similar means, Colorado has begun transitioning from coal-fired power plants to natural gas and renewables. In 2010, Governor Bill Ritter signed the Clean Air/Clean Jobs Act (HB10-1365) that requires retrofits and incentivizes transitions to natural gas power plants.
Wood Mackenzie, a firm specializing in analysis and consulting, has predicted that 20 percent of coal-fired power plants in the U.S. will close in the next 10 years, due to stricter regulations. The EPA has come under fire for these rules, over concerns that closures will affect the reliability of electricity, but as with other rulemakings, EPA has held the line.
The EPA has been criticized for its new boiler rules as well, which would decrease emissions standards for industrial and commercial boilers. The Council of Industrial Boiler Operators, the American Forest & Paper Association, and the Manufacturers’ Alliance have released or commissioned reports warning of hundreds of thousands of job losses due to these rules. The EPA has been defended, however, by environmental groups and university economists on the grounds that these reports made incomplete analyses that over exaggerated job losses by a factor of ten or more. The response, released by the Natural Resources Defense Council, is available online.
Many of these measures, including the GHG regulations, are currently being challenged in court, and the legislative battles may grow more rancorous as Republicans take over the House in 2011. As the EPA prepares to release its final rulemakings, it will have to prepare its defense as well.
Global Methane Initiative Launched (10/10)
Economists Question Studies Claiming EPA Regulations Would Harm Economy (10/10)
EPA Sets Stricter Sulfur Dioxide Limits (6/10)
The new rule only addresses the primary standards affected by SO2; protection of public health. Secondary standards—those protecting public welfare and the environment—will be addressed in a separate review set for completion in 2012.
EPA Will Not Regulate Stationary Source GHG Emissions until 2011 (3/10)
The “Johnson memorandum” says facilities should get permits only for pollutants covered by the Clean Air Act. In her final reconsideration, current EPA Administrator Lisa Jackson follows that recommendation. Currently, however, it is being debated whether GHGs will be regulated by the Clean Air Act (see February article). This is the first step in EPA’s phased in approach to addressing GHG emissions laid out by Jackson in a letter last February.
EPA Seeks Public Comment on the 15th Annual U.S. Greenhouse Gas Inventory (3/10)
Total GHG emissions for the U.S. in 2008 were about 7,000 metric carbon dioxide equivalent tons, a 2.9 percent decrease from the previous year. However, GHG emissions show an overall growth of 13.6 percent during the time period of 1990-2008.
More information on the draft report and how to submit public comments is available here.
Stricter CAFE Standards and First-Ever GHG Regulations Set For Passenger Cars (3/10)
The ability of the EPA to limit carbon dioxide emissions follows the EPA decisions that it has the authority to regulate GHGs as pollutants under the Clean Air Act. These rules will mark the first time GHGs are officially subjected to regulation under the Clean Air Act, legitimizing EPA’s ability set GHG requirements for others sources as well, like those EPA Administrator Lisa Jackson proposed earlier this month (see 14).
EPA Proposes New Standards for Sulfur Dioxide (11/09)
The agency will announce a public comment period of 60 days in the Federal Register and will hold a public hearing on Jan. 5, 2010 in Atlanta. EPA must issue final standards by June 2, 2010.
More information about the proposal is available at: http://www.epa.gov/air/sulfurdioxide
Senators Want Other Pollutants in Climate Change Bill (8/09)
The new standards would be in place from until 2014, and then reduced further through 2019. National sulfur dioxide emissions would be limited to 3.5 million tons per year through 2014 and then to 1.5 million tons per year through 2019. After 2019, the Administrator of the Environmental Protection Agency (EPA) could lower the allowed emissions level as needed. The nitrous oxides emissions standards would be different depending on the region of the U.S. The Eastern states would have similar allowances as the CAIR program and would be called Zone 1, while 16 western states would form Zone 2. Zone 1 would be allowed emissions totaling 1.39 million tons from 2012 to 2014, 1.3 million tons through 2019, and then the EPA Administrator could again change the limit as reductions are needed. The emission standards for Zone 2 would start at 400,000 tons in 2012 and be reduced to 320,000 tons at the end of 2014. Limits on mercury emissions standards would only start in 2015 to reduce emissions by 90 percent. The air pollution bill would also change the cap and trade program under CAIR to an auction system for allowances directed by the EPA.
EPA Grants California Vehicle Emission Waiver (6/09)
The new standards would cover new vehicles for model years 2012-2016 and the standards would most likely require fuel efficiency standards of greater than 40 miles per gallon to meet the greenhouse gas emission restrictions. This would essentially force more fuel efficient vehicles into the marketplace than required by the recently updated federal corporate average fuel efficiency standards of 35 miles per gallon in the Energy Independence and Security Act of 2007. While the standards would reduce emissions and gasoline fuel costs, it is not clear how quickly the auto industry can develop vehicles that American consumers would be willing to purchase.
The California waiver affects a broader cross section of the nation as 13 other states and the District of Columbia have opted to follow California’s stricter greenhouse gas emission standards. President Obama has also called for stricter greenhouse gas emission standards for vehicles at the federal level. The ailing U.S. auto industry will need to re-tool their vehicles for these emission restrictions in order to keep up with foreign auto industry production of more fuel efficient vehicles.
EPA Rules That GHGs Are Hazardous To Your Health (4/09)
Though the report does not suggest any specific regulations, the implications are huge. Since the EPA has jurisdiction of pollutants included in the Clean Air Act, the findings give the EPA official responsibility for controlling GHG emissions. The EPA could have complete power over limiting vehicle emissions and potentially imposing caps on industry unless Congress passes legislation to tackle these issues. There has been a push in Congress to pass comprehensive energy and climate legislation, but it is uncertain whether there is enough support yet to pass such a bill. Some see the ruling as motivation for Congress to move faster in their consideration of climate and energy bills, especially amid fears that the EPA will use this rule to regulate everything from cars to cows. If the EPA did undertake such a broad and complex set of new regulations and standards, it could easily be overwhelmed. However these are just speculations since the EPA has not put forth any actual rules, and will not announce any, until after the public comment period for the proposal is over on June 23, 2009.
For more information on the findings and submitting comments, visit the EPA website.
Soot Study Bill Brings Together an Unlikely Pair of Senators (4/09)
Court Orders EPA to Reconsider Interstate Emissions (3/09)
CAIR was initiated in 2004 to reduce emissions of sulfur dioxide and various nitrogen oxides over 28 eastern states using cap and trade programs and other state-level initiatives. However, North Carolina sued EPA over the denial in 2006, stating that CAIR would not clean up the air quickly or effectively. In 2008, the U.S. Circuit Court of Appeals tossed out CAIR and directed the EPA to modify the rule to address interstate emissions as soon as possible. This decision opened the door for North Carolina to again pursue assistance from the EPA. In February the EPA requested from the Court of Appeals a remand of petition from North Carolina, recognizing that the court’s directive to modify CAIR removed the legal basis for EPA’s denial of the petition originally.
EPA Reconsiders California Waiver (2/09)
California first requested permission to set a stricter standard for GHG emissions within the state in 2005. It cited its battles with air pollution as the primary reason for deviating from federal standards. The previous EPA Administrator Stephen Jackson denied the request in March 2008, saying that adhering to President Bush’s national approach to GHG emissions standards would be more effective. If the EPA grants California the waiver this time around, 17 other states are set to adopt the same stringent standards. The vehicles in these 18 states make up 50 percent of the auto market, so the waiver would markedly impact the auto industry’s emissions standards.
The Clean Air Act is the law that defines EPA's responsibilities for protecting and improving the nation's air quality and the stratospheric ozone layer. 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 (GHG).
In July 2002, President Bush proposed his Clear Skies Initiative as an amendment to the Clean Air Act. It would cut power plant emissions by 70% for sulfur dioxide (SO2), nitrogen oxides (NOx), and mercury, through a cap-and-trade program. The initiative never made it out of committee with opponents saying it would create far less stringent air pollution controls and proponents saying the levels in the Clean Air Act are unachievable.
Following the idea of a cap and trade program, the EPA issued the Clean Air Interstate Rule (CAIR) in 2005. The rule allows the EPA to deal with emissions from electric utilities in 28 states and D.C. through a cap and trade system. However in July 2008, the U.S Circuit Court of Appeals in D.C. told EPA it was wrong to use a cap-and-trade program to deal with air pollutants, rather than forcing emission reductions at all power plants. An unusual alliance of the Bush Administration, industry and environmental groups asked a federal appeals court to reconsider the decision. In December 2008 the courts granted a retrial, but the rule will remain in effect until a revised rule is agreed upon.
In April 2007 the U.S. Supreme Court case Massachusetts vs. EPA (No. 05-1120) found that GHG are indeed pollutants under the Clean Air Act, and deemed the EPA refusal to regulate vehicular GHG emissions is unlawful. The Clean Air Act mandates that the head of the EPA monitor air pollutants "which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger the public health or welfare". The EPA previously cited scientific uncertainty as an explanation for the lack of legislation. The ruling does not require action, but it would ideally pressure the EPA to make a decision on GHG regulation. However in July 2008, the EPA announced it would further delay consideration of using the Clean Air Act to regulate greenhouse gases until the next administration. The Supreme Court ruling did spur an executive order from President Bush to reduce gasoline consumption 20 percent by 2017 by setting a mandatory fuel standard and increasing fuel efficiency.
Despite an interest in improving vehicle efficiency and lower emissions, California was denied the right to control vehicular GHG emissions within the state in March 2008. Then EPA Administrator Stephen Johnson favored President Bush’s national approach to GHG regulation and said California did not "meet compelling and extraordinary conditions" needed for the waiver. California submitted a waiver in December 2005 so it could adopt its own, more stringent, emission standards to combat the state’s serious pollution problems. Now, though, President Obama has granted California’s request to have its waiver denial reviewed within his first week of taking office. If approved, California and 13 other states waiting to set their own standards would be set to reduce emissions 30 percent by 2016.
Sources: EPA, AGI's Monthly Review
Contributed by Corina Cerovski-Darriau, Rachel Poor, and Linda Rowan, Government Affairs Staff; Merilie Reynolds, AGI/AAPG Fall 2008 Intern; Stephanie Praus, AGI/AIPG Summer 2009 Intern; and Mollie Pettit, AGI/AAPG Fall 2009 Intern.
Background section includes material from AGI's hearings for Clean Air in the 110th Congress and AGI's Monthly Review.
Please send any comments or requests for information to AGI Government Affairs Program.
Last updated on January 5, 2011