Clean Air Initiatives in the 109th Congress: Clear Skies, or Not-So-Clear Skies

1. Clean Air Initiatives in the 109th Congress:Clear Skies, or Not-So-Clear Skies Clean Air Initiatives in the 109th Congress:Clear Skies, or Not-So-Clear Skies? William V. Luneburg University of Pittsburgh School of Law ABA Mid-Year Meeting Salt Lake City, Utah February 11, 2005

2. The problem as originally envisioned: localized air pollution, in this case, fromsteel factories.

3. The 1970 Clean Air Act Approach: the creation of State ImplementationPlans (SIPs) to lower pollutant concentrations in the ambient air in the area of an emissions source to the NAAQS level SIP imposes “cap” on emissions from existing plants in terms of rate of emissions from distinct emission points

4. What about increases in emissions from new or modified sources that threaten to prevent NAAQS attainment or maintenance? • The Solution—New Source Review (NSR). • Increased emissions from new plants and increased emissions from existing plants must be • reduced by meeting the “best technology” standards (BACT or LAER) and • any remaining emissions 1) “offset” by reductions in emissions from existing plants (in so-called nonattainment areas) and 2) “capped” in other areas by legally imposed limits on the allowable concentrations (NAAQS) and/or increases in concentration (PSD increments) of the pollutants of concern.

5. The Challenge Today: transboundary pollution originating from multiple sources located in multiple states involving multiple pollutants that interact to create the pollutant of concern

6. The Solution: regional (or national) “caps” on total amount of emissions: in this case, e.g., 1200 tons/yr on Plant 1 and 1000 tons/yr on Plant 2 with the ability of Plants 1 and 2 to decide between themselves which is going to reduce how much as long as total emissions =2200 tons/yr. Nox Ozone/PM2.5/Acid Rain Nox Plant 1--Illinois Pennsylvania Plant 2--Indiana

7. The Problems Remaining(among others) • At what level should the caps be set? • Should they be regional or national? • What types of sources should be covered by the caps? • How to arrive at the initial allocation of allowed emissions to covered sources in the area covered by the cap? • How allocate allowed emissions in the future?

8. How do the caps impact on the obligations of states to develop SIPs for the attainment of the ozone and PM2.5 standards and haze reduction in federal Class I areas? • To what extent will additional local strategies for emission control of existing sources be required for attainment? • What impact on attainment dates for the NAAQS? • What impact on the applicability of NSR for new and modified sources in nonattainment areas that are NOT covered by the cap-and-trade program? • For example, if the sources are only covered by PSD provisions under the transitional area classification, what insures that increased emissions are taken into account in nonattainment area planning so as not to interfere with RFP and future attainment?

9. What do you do about increased emissions from new and modified sources like those in categories covered by the cap which, if not controlled, will result in aggregate emissions exceeding the caps as well as impact on NAAQS attainment and maintenance, PSD increment protection, and air quality-related values in federal Class I areas? • What, if any, mandated technology controls should apply (currently BACT and LAER apply with the New Source Performance levels as the minimal level of control mandated).

10. Does Clear Skies have too narrow a focus? • In 2004, the National Research Council published Air Quality Management in the United States that looks at major parts of the Clean Air Act’s approach to air pollution control and suggests significant changes. • The focus of the study was much broader than Clear Skies which, to a large extent, builds on the existing framework for air quality improvement (one of the principal exceptions being the elimination of NSR for sources subject to the new statutory caps on emissions). • Some of the important NRC recommendations (to name only a few) include: • The need for abetter data base for air quality management (i.e. better and more extensive air quality monitoring); • Changes in setting priorities for pollutant control (e.g. a greater emphasis on possible HAPs); • Integration of criteria and hazardous air pollutant control (e.g. extending the SIP concept to HAPs); and • The need for more protection of ecosystems from air pollution, through the adoption and implementation of secondary NAAQS.

11. Since 1970 there have been only two major re-workings of the Clean Air Act—in 1977 and 1990. • 2005 marks the end of the longest period between congressional attempts to update and improve the law. • If Congress does not this year widen its focus to include at least some of the important issues presented by the NRC study, it is possible that a decade or more may pass before these issues can be addressed in a comprehensive, integrated fashion. That is clearly NOT in the interest of protecting public health and welfare. • It is not clear under current law whether EPA has sufficient legal authority (even if it has the willingness) to implement some of the important proposed changes (e.g. integrating criteria and hazardous pollutant control). • Be that as it may, let’s return to Clear Skies---

12. Current Emissions (2000) Phase 1 Cap Phase 2 Cap Projected Emission Reductions Sulfur Dioxide (tons) 11 million 4.5 million (2010) 3 million (2018) 73% Nitrogen Oxides (tons) 5 million 2.1 million (2008) 1.7 million (2018) 67% Mercury (tons) 48 26 (2010) 15 (2018) 69% Clear Skies (2003) Emissions Caps and Timing for SO2, NOx, and Mercury

13. Comparison of Caps and Timing: S.3135, Clear Skies, and S.556 (Nov. 2002)

14. STAPPA/ALAPCO Proposed Caps

15. In short, a comparison of some caps Clear Skies Sen. Jeffords’ Bill STAPPA/ALAPCO