Air and Atmospheric Quality Policy (9/17/12)

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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, and defines measures for pollution prevention and ozone protection as well. 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, and a 2009 positive endangerment finding of GHG by the EPA has given them justification to do so. However, there is much division in Congress about whether this should be allowed. In January 2011 EPA enacted controversial permit requirements for newly built and modified facilities that emit large amounts of GHG, such as power plants and refineries. There is proposed legislation to block EPA from regulating GHG, and it is likely that policymakers will challenge the regulations and oversight of EPA during the 112th Congress.

Recent Action

District Court Rules Against EPA’s Cross-State Rule (08/12)
On August 21, the United States Court of Appeals for the District of Columbia ruled that the Environmental Protection Agency (EPA) had exceeded its authority when it promulgated the Cross-State Air Pollution Rule, or the Transport Rule, in August 2011. This rule was written to address the problem of pollution from upwind states preventing neighboring states from attaining the level of air quality required under federal law.

While the court said EPA has the authority to set rules that would require upwind states “to bear responsibility for their fair share of the mess in downwind states,” EPA had attempted with the Transport Rule to require cleanup according to the cost of reductions rather than dividing reductions according to the amount of pollution each upwind state was contributing. This would have created a trading system in which the states could buy and sell pollution credits and the necessary work would be done in the states where the cost of cleanup was the lowest and easiest to do. The court argues in the opinion written by Judge Brett Kavanaugh that this rule would have improperly required upwind states “to reduce their emissions by more than their own significant contribution to a downwind state’s nonattainment.” The opinion further charges EPA with imposing a federal plan instead of granting states the opportunity to implement their own reduction compliance plans as permitted in the Clean Air Act (42 U.S.C. 7401 et seq).

The Transport Rule is the latest attempt by the EPA to address this problem. In 2008, the US Court of Appeals for the District of Columbia ruled against the 2005 Clean Air Interstate Rule.

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Previous Action

Court Upholds EPA Emission Rules (06/12)
On June 26, the United States Court of Appeals for the District of Columbia Circuit upheld the Environmental Protection Agency’s (EPA) greenhouse gas (GHG) emission regulations under the Clean Air Act (P.L.101-549). The case, Coalition for Responsible Regulation, Inc., Et Al. v. Environmental Protection Agency was argued in late February 2012 and decided on June 26, 2012.  

Petitions challenging the timing rule, which set standards for stationary emitters, and the tailoring rule, which requires major polluters to obtain permits for GHG emissions, were dismissed by the court. One petition challenged the finding that greenhouse gases are hazardous to human health, referred to as the “endangerment finding,” and another challenged the “tailpipe” rules, which set emissions standards for automobiles.

The endangerment finding resulted from the Supreme Court's 2007 Massachusetts v. EPA ruling which found that GHG could be regulated under the Clean Air Act. The court’s rulings on the other petitions were influenced by the precedent of this case as well.

Clean Cookstoves Support Act of 2012 Introduced in Senate (05/12)
Senator Susan Collins (R-ME), along with Senator Dick Durbin (D-IL), has introduced the Clean Cookstoves Act of 2012 (S.2515) to improve global health and reduce harmful emissions through promotion of clean cookstoves and fuels. The bill has been referred to the Committee on Foreign Relations.

S.2515 authorizes the United States to contribute $105,000,000 to the Global Alliance for Clean Cookstoves for fiscal years (FY) 2013 through 2017. The contributions would be provided by the U.S. Agency for International Development (USAID), Department of Energy (DOE), National Institutes of Health (NIH), Centers for Disease Control and Prevention (CDC), and the Environmental Protection Agency (EPA).

The World Health Organization (WHO) estimates cookstove smoke to be one of the top five threats to public health in developing countries. The Global Alliance for Clean Cookstoves is a public-private, international collaboration created to address this public health issue. The United States serves as a founding partner to the Alliance.

S.2515 would contribute to the goals of the Alliance on several fronts. Appropriations would support research and development of cookstoves, encourage a commercial market for clean-burning stoves and fuels, promote international development, analyze social effects on women and children, and finance surveillance and assessment projects. 

EPA Releases Final Emissions Standards for Oil and Gas Operations (04/12)
The Environmental Protection Agency (EPA) released its final new source performance standards and national emissions standards for oil and natural gas operations on April 17. Though full implementation of the rules will not begin until 2015, these rules mark the first federal air standards for natural gas wells that are hydraulically fractured.

The new source performance standards are meant to reduce emissions of volatile organic compounds (VOCs) and sulfur dioxide from oil and gas operations. The hydraulic fracturing process and its associated equipment have been criticized for emitting significant amounts of VOCs and methane through leaks. The rules require new hydraulically fractured gas wells to use green completion technologies which limit emissions and produce byproducts of methane and other hydrocarbons for producers to sell.

EPA’s New Source Performance Standards for Fossil Fuel-Fired Power Plants (03/12)
On March 27, 2012, the Environmental Protection Agency (EPA) released standards of performance for greenhouse gas emissions for new stationary sources from electric utility generating units. The rule requires new fossil-fuel-fired electric utility generating units that are greater than 25 megawatts electric (MWe) to meet an output-based standard of 1,000 pounds of carbon dioxide per megawatt-hour.

The performance standard is based on natural gas combined cycle technology. Right now, natural gas-fired power plants emit about 850 pounds of carbon dioxide while coal-fired plants emit about 1,800 pounds per megawatt-hour. EPA expects new coal-fired power plants to meet the standard by employing carbon capture and storage (CCS) of about 50 percent of the carbon dioxide emitted in the exhaust gas at startup or through application of CCS over an averaging period of 30 years.

Public comments are being accepted and public hearings will be held. See EPA’s webpage, Carbon Pollution Standard for New Power Plants for more details.

National Asbestos Awareness Week: April 1-7 (03/12)
On March 6, 2012 the Senate passed a Senate resolution (S.RES.389) introduced by Senator Max Baucus (D-MT) declaring April 1-7, 2012 National Asbestos Awareness Week. 

National Asbestos Awareness Week is designed to keep the public informed of the dangers of exposure to asbestos fibers.  Danger exists from naturally occurring and manufactured asbestos.  Naturally occurring asbestos refers to several minerals that might be liberated from formations and once airborne can affect health if humans breathe in the fibrous materials. Exposure to manufactured asbestos may occur in non-renovated buildings and facilities built before 1975.  Prolonged exposure to asbestos can cause diseases such as mesothelioma.  Thousands of workers in the United States are exposed to asbestos on a daily basis.    

U.S. Joins U.N. Program to Reduce Methane and Black Carbon Emissions (02/12)
Secretary of State Hillary Clinton announced the U.S. will participate in an international initiative to reduce methane, black carbon, and hydrofluorocarbons (HFC) emissions. The Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants will be administered by the United Nations Environment Program (UNEP). A recent study published in Science found that reducing the emissions of black carbon, or soot, and methane would slow global warming and save lives by preventing lung and cardiovascular disease. 

At a joint press conference with Environmental Protection Agency (EPA) Director Lisa Jackson, Secretary Clinton said the coalition will “mobilize resources, assemble political support, help countries develop and implement a national action plan, raise public awareness, and reach out to other countries, [non-governmental organizations], and foundations.”  The U.S. would be joined by Canada, Sweden, Mexico, Ghana, and Bangladesh and would contribute $12 million for the first two years in addition to the $10 million provided annually to the Global Methane Initiative and the $10 million provided annually to the Global Alliance for Clean Cookstoves. The State Department has issued a fact sheet that explains the coalition and potential to reduce the impacts of global warming by limiting methane, black carbon, and HFC emissions.

DOT and EPA Propose Higher CAFE Standards (11/11)
The Department of Transportation (DOT) and the Environmental Protection Agency (EPA) announced on November 16 a proposal to increase fuel economy standards for model-year 2017-2025 passenger cars and light trucks to a corporate fleet average  of 54.5 miles per gallon by 2025 through new Corporate Average Fuel Economy (CAFE) standards. CAFE standards are the sales weighted average fuel economy, expressed in miles per gallon, of a manufacturer’s fleet of passenger cars or light trucks manufactured for sale in the U.S. for any given model year. In April 2010, the Obama Administration announced they would improve the CAFE standards for passenger cars and light trucks set by the Energy Independence and Security Act of 2007 (P.L. 110-140) from 35 miles per gallon by 2020 to an average 35.5 miles per gallon by 2016. The rules give each model its own mileage requirement based on the square feet it covers.

According to DOT, the new regulations will save Americans $1.7 trillion by 2025 and cut 6 billion metric tons of greenhouse gas emissions over the period of 2017-2025.

EPA Under Pressure from House to Delay Emissions Standards (10/11)
The Environmental Protection Agency (EPA) was busy in October defending the benefits of a series of emissions standards that the House of Representatives voted to delay. On October 6, 2011, the House of Representatives passed the Cement Sector Regulatory Relief Act of 2011 (H.R. 2681) to prevent the enforcement of new emissions standards for the cement industry and a week later on October 13, the House passed the EPA Regulatory Relief Act of 2011 (H.R. 2250) to delay the emissions standards for boiler and incineration units by 15 months. Along with the delayed Utility MACT standards for coal- and oil-fired power plants, these boiler standards were ordered as part of the Clean Air Act Amendments of 1990 (P.L. 101-549) but have not been implemented because of inaction and lawsuits. Though originally scheduled to release the Utility MACT rules on November 16, EPA Administrator Lisa Jackson has requested a 30-day extension to allow time for sufficient review of public comments. An amendment (H.AMDT.799) attached to the Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 (H.R. 2401) and a petition from 25 states seek to delay the rules for at least one year. By EPA’s own estimates, the two rules would cost a combined $2.5 billion per year but would save between $29 and $72 billion in health care costs.

In September, the Obama Administration sent a letter to EPA Administrator Lisa Jackson requesting a withdrawal of draft ozone standards until 2013. In response, the American Lung Association, the Environmental Defense Fund, the Natural Resources Defense Council, and the Appalachian Mountain Club filed a suit against the administration asking the U.S. Court of Appeals for the District of Columbia Circuit to decide whether the President has the authority to tell Jackson to withdraw the standards.

Chairwoman Boxer Releases Report on Benefits of Strong EPA (10/11)
The Senate Committee on Environment and Public Works majority staff released a report defending the Environmental Protection Agency (EPA) on October 6, 2011. The report entitled, “A Strong EPA Protects Our Health and Promotes Economic Growth,” focuses on the health and economic benefits of environmental laws created and enforced by the EPA. Such benefits include a $300 billion per year clean technology sector that employs about 1.7 million people.

White House Postpones New Ozone Standards (09/11)
On September 2, the Obama Administration sent a letter to Environmental Protection Agency (EPA) Director Lisa Jackson requesting a withdrawal of draft ozone standards that would have set the strongest smog standards yet. Though the ozone standards are up again for review in 2013, many environmentalists and many Democrats had hoped to set the 60 to 70 parts per billion (ppb) limits before then. The White House reiterated that the move was not politically motivated but done due to concern over duplicative regulations. Some in industry and some Republicans praised the move as a major relief to businesses worried about the costs of meeting the stricter standards. If implemented, the measure would have cost the economy up to $90 billion a year by EPA’s own analysis.

In response, Senator Jeff Sessions (R-AL) floated an amendment at an Environment and Public Works Committee markup to restrict the rules from being reevaluated through 2013 though he did not ask the committee to vote on it. Environment and Public Works Chairwoman Barbara Boxer (D-CA) has promised to hold an oversight hearing into the administration’s decision to pull the standards.

TRAIN Act Passes House; More Republican Bills Aimed at EPA on the Move (09/11)
On September 23, the House of Representatives passed the Transparency in Regulation Analysis of Impacts on the Nation Act of 2011 (H.R. 2401), known as the TRAIN Act, on a largely party line vote of 233-180. The bill blocks significant new air pollution rules for coal-fired power plants, delays several other air pollution rules set to be finalized in November, and creates a cabinet level panel, led by the Secretary of Commerce, to study the overall effect of regulatory rules on the economy. Several amendments were added to the bill including one offered by Representative Bob Latta (R-OH) that would require the Environmental Protection Agency (EPA) to consider costs when setting air quality standards. Currently, EPA sets standards based on health and environmental impacts and then provides an estimate of costs for industry to comply with regulations. Most Democratic amendments were voted down, with only two out of six passing during the vote. Representative Gwen Moore’s (D-WI) proposal was one successful amendment requiring the new commission to evaluate the effect of EPA rules on low-income communities and public health.

Even though the TRAIN Act is unlikely to get through the Senate, House Republicans are following up with several more bills to limit EPA’s regulatory reach.  In September, the House Energy and Commerce Committee marked up the Cement Sector Regulatory Relief Act of 2011 (H.R. 2681) and the EPA Regulatory Relief Act of 2011 (H.R. 2250) that would scrap several performance standards and emissions standards.

In September and early October, the Office of Management and Budget (OMB) released a Statement of Administration Policy on the TRAIN Act and another for H.R. 2681 and H.R. 2250. These OMB statements announce that the President would be advised to veto all three bills if they passed Congress.

EIA Releases Carbon Dioxide Emissions Report (08/11)
The U.S. Energy Information Administration released their annual Carbon Dioxide Emissions Report on August 18.  The report analyzes the level and drivers of carbon dioxide emissions for 2010 including data on changes in population, output per capita, energy intensity of the economy, and carbon intensity of the energy supply.  After declines in each of the previous four years, energy-related carbon dioxide emissions in 2010 showed the largest percent increase since 1988, though emissions were 358 million metric tons below the 2005 level.  The large percent increase is partially attributed to economic growth over the past year after a historic decline in emissions in 2009.

EPA Defends Endangerment Finding (08/11)
On August 18, 2011, the U.S. Environmental Protection Agency (EPA) filed a brief with the U.S. Circuit Court of Appeals for the District of Columbia after states and industry groups asked the court to dismiss EPA’s endangerment findings. The brief defends the 2009 endangerment finding by EPA, which established the foundation for new carbon dioxide emissions standards from cars and trucks and initiated limits on greenhouse gases (GHG) from power and other industrial plants. This brief follows the orders by the Supreme Court to determine whether GHG do pose a threat to human health. The EPA findings were challenged by states and industry groups stating that the EPA failed to identify a level at which GHG pose a threat to human health.

Online Tool to Report Greenhouse Gas Emissions Launched (08/11)
The Environmental Protection Agency (EPA) has launched a new internet tool to help over 7,000 facilities across 28 industrial sectors submit their 2010 greenhouse gas emission data as required by the Greenhouse Gas Reporting Program. The deadline for submission falls on September 30 which is the same day for the release of the planned proposal for the New Source Performance Standards (NSPS) for power plants which was delayed earlier this year.

Bill to Delay EPA’s Boiler Emissions Rule Introduced (07/11)
Senator Susan Collins (R-ME) and five co-sponsors introduced a bipartisan bill (S.1392) on July 20, 2011 that would delay and amend the pending U.S. Environmental Protection Agency (EPA) Boiler Maximum Achievable Control Technology (MACT) rules.  The Boiler MACT rules, issued in February 2011, restrict mercury and other toxic emissions from industrial boilers and incinerators.  Collins’ bill would extend compliance deadlines from three years to at least five years, give the EPA 15 months from the bill’s enactment to finalize the regulations, clarify that renewable and carbon neutral materials are considered fuel and not solid waste, and direct the EPA to ensure that the new regulations are achievable with current technology. 

House Bill Would Delay Air Pollution Rules for Boilers (06/11)
Representatives Morgan Griffith (R-VA), G.K. Butterfield (D-NC), John Barrow (D-GA), Jim Matheson (D-UT), Cathy McMorris Rodgers (R-WA), Pete Olson (R-TX), Mike Ross (D-AR), and Steve Scalise (R-LA) introduced the EPA Regulatory Relief Act of 2011 (H.R. 2250). The measure would give the Environmental Protection Agency (EPA) more time to issue standards for industrial boilers. Proponents of the legislation say companies that own boilers could shut down or lay off workers if they are forced to spend more than $5.8 billion on pollution control rules. The Obama administration previously asked a federal judge for an extra 15 months for the EPA to work out a plan for new air pollution limits on industrial boilers, but the EPA was instructed to move forward. This bill is proposing to dismiss the rules made in February and allow the EPA the extra 15 months to prepare a new plan. Companies would then have at least five years to comply rather than the three years to comply under current law.

Federal Agencies to Work Together on Emission Standards for Drilling (06/11)
On June 24, the Obama administration announced a new Memorandum of Understanding (MOU) signed by the Environmental Protection Agency, the Department of the Interior, and the Department of Agriculture. The goal of the MOU is to streamline the emissions review process for drilling projects in hopes of reducing delays and setting expectations and agreements for how to address air quality. The new MOU primarily affects western states, which have seen a recent boom in natural gas drilling and drilling proposals.

EPA Delays Boiler Emissions Rules Indefinitely (05/11)
In a move pleasing industry groups around the country, the Environmental Protection Agency (EPA) has decided to delay indefinitely its emissions limits on large industrial boilers. An amendment to the Clean Air Act added in 1990 requires the EPA to limit toxic emissions from boilers including mercury and acid gases but it was only in February 2011 when EPA Administrator Lisa Jackson signed the requirements. Receiving harsh criticism for the proposed standards, EPA tried to delay issuing the rules in January of 2011 but was ordered by a federal court to issue the rules by President’s Day.  The rules issued on February 23, 2011 were a substantially scaled back version to the draft rules proposed in 2010.

Even so, industry leaders argued that three years was not enough time to economically prepare for the new regulations. Normally, the Clean Air Act requires new toxic pollution levels to become legally binding within three years. In a letter to EPA, the American Forest and Paper Association, the American Chemistry Council, the National Association of Manufacturers and others suggested staying the rules under the Administrative Procedure Act. In May, Jackson granted the stay to delay the regulations indefinitely and begin a reconsideration period to receive another round of public comments. "The stay will allow the agency to seek additional public comment before requiring thousands of facilities across multiple, diverse industries to make investments that may not be reversible if the standards are revised following reconsideration and a full evaluation of all relevant data," EPA said in a statement. The delay will continue until either judicial review of the rules is completed or EPA completes its reconsideration of the rules. Interested parties are encouraged to submit comments here by July 15, 2011.

EPA Releases Report on Benefits of Clean Air Act (03/11)
On March 1, 2011 the Environmental Protection Agency released a report on the benefits of the Clean Air Act. The Second Prospective Report looked at the results of the Clean Air Act from 1990 to 2020. According to this study, the direct benefits from the 1990 Clean Air Act Amendments are estimated to reach almost $2 trillion for the year 2020, a figure that dwarfs the direct costs of implementation ($65 billion).

EPA Delays Greenhouse Gas Permitting for Biomass Fuels
The United States Environmental Protection Agency (EPA) announced January 12 that it will delay for three years setting greenhouse gas (GHG) permitting requirements for industries that use biomass as fuel. In a news release, EPA indicated it will use the additional time to gather more input and analysis from the scientific community. EPA will revisit comments received from a July 2010 Call for Information to better understand whether burning biomass results in a net increase or decrease in emissions. EPA will formulate a decision concerning how to deal with the emissions and whether permits are necessary.

The move signals to some an approval of biomass as a form of clean energy by EPA, while others view it as an indication towards a more moderate approach to regulation. The deferral comes as EPA is enacting controversial permit requirements for newly built and modified facilities that emit large amounts of GHG, such as power plants and refineries.

EPA Starts and Stalls on Climate Change Regulations
On January 2, 2011, the Environmental Protection Agency’s (EPA) rules on regulating greenhouse gas emissions from cars, light trucks, and large industrial facilities take effect. The regulations are only for new facilities, significant modifications to existing facilities and new vehicles, however, opposition is mounting. Seven states (Arizona, Arkansas, Florida, Idaho, Kansas, Oregon and Wyoming) are not ready to implement the regulations and the EPA has taken over oversight in those states. Texas has refused to implement the regulations and EPA has taken over permitting and oversight in that state. Incoming House Energy and Natural Resources Chairman, Representative Fred Upton (R-MI), has suggested he may use a rare congressional tool, a resolution of disapproval, to attempt to overturn the regulations. President Obama would have to sign the resolution if Congress considered and passed it. Upton acknowledged that the President is unlikely to approve of such a measure.

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.

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The Clean Air Act is the law that defines EPA's responsibilities for protecting and improving the nation's air quality, including 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 considered harmful to the environment and public health—nitrogen dioxide, ozone, sulfur dioxide, particulate matter, carbon monoxide, and lead. According to the EPA, about 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 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 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".  Furthermore, the ruling stated that the EPA could regulate GHG under the Clean Air Act if it made an endangerment finding regarding GHG. In 2009, the EPA issued such a finding, saying that greenhouse gas (GHG) emissions are indeed threatening to public health and welfare.

On January 2, 2011 EPA enacted controversial new permitting requirements for the largest stationary sources for greenhouse gas emissions (GHG). The requirements are for new and modified facilities that emit more than 100,000 tons of carbon dioxide equivalent per year. The regulations have not been well received in Congress. Many policymakers have announced they would support legislation to delay EPA rulemaking on GHG by two years, and several states challenged the measures in court. Expect legislation in the 112th Congress to focus on limiting the EPA’s authority to regulate GHG under the Clean Air Act.

Contributed by Linda Rowan and Wilson Bonner, Geoscience Policy Staff; Dana Thomas, AGI/AAPG Spring 2011 Intern; Vicki Bierwirth, AGI/AIPG Summer 2011 Intern; and Erin Camp, AAPG/AGI Fall 2011 Intern.

Background section includes material from AGI's hearings for Clean Air in the 111th Congress and AGI's Monthly Review.

Please send any comments or requests for information to AGI Geoscience Policy.

Last updated on September 17, 2012