Clearing the Air on Clear Skies

Posted: 15-Jul-2002; Updated: 24-Apr-2007

Environmental Defense attorney Vickie Patton works to improve air quality across the nation, focusing on reducing power plant emissions and lowering air pollution from the transportation sector. Patton is one of the country's foremost experts on Clean Air Act regulations at the state, regional and national level. Recently, Clean Air Act regulations have met with a number of serious challenges, notably from the Bush administration's Clear Skies Initiative and administration-led rollbacks to the new source review program. We recently spoke with Patton to take stock of the situation and find out what Environmental Defense is doing to protect our air and health.

Q: The White House unveiled its Clear Skies Initiative last February, touting it as "the most significant step America has taken to cut power plant emissions," and set out targets for specific cuts in sulfur dioxide, nitrogen oxide and mercury. Are these targets really more aggressive than what's currently required by law?

Patton: There has been a vigorous public debate over to what extent the proposed Clear Skies emissions reductions are more or less than what you would get if you simply implemented all the provisions of the Clean Air Act using every authority to do that. But the most important point, and the one that has been overlooked in this debate, is that we can achieve deeper pollution cuts that would realize important societal benefits and do it in a cost-effective way. We know from the Environmental Protection Agency's own air quality modeling and economic analyses that deeper reductions than called for under the Clear Skies targets are cost-effective and that, as a public health and environmental matter, deeper reductions are warranted.

Q: The Bush plan talks about "modernizing" the Clean Air Act and proposes a "new Clean Air Act for the 21st century" using a market-based approach. What does that mean exactly in terms of current Clean Air regulations and the cap-and-trade approach Environmental Defense helped pioneer?

Patton: First of all, the Bush administration is basically saying they've has got these really great emission caps, better than what you would get under the Clean Air Act, and you don't need all these other regulations if you use their caps. And what we believe is that the Bush Administration's caps are not rigorous enough to achieve the important public health and environmental gains that are within reach.  The Bush administration needs to considerably tighten its caps on sulfur dioxide and nitrogen oxides. Further, we are concerned about the Clear Skies Initiative's approach to mercury pollution from power plants, which is meager both in terms of the level of pollution cuts and in failing to recognize that mercury is a neurotoxin with local fate and transport characteristics.

We are especially concerned that the Bush Administration does not address power plants' pollution of carbon dioxide, a principal greenhouse gas, in any meaningful way.  This is seriously misguided public policy.  It is critical, from an environmental and an economic standpoint, to optimize and harmonize investments in lowering conventional air pollutants with investments to reduce carbon dioxide.

We also know from 10 years' worth of history and experience that you don't have to displace core Clean Air Act programs with cap-and-trade programs. The sulfur dioxide emissions cap-and-trade program adopted in the 1990s amendments that Environmental Defense pioneered did not supplant existing Clean Air Act programs.  For example, if any area exceeds the health-based air quality standards for sulfur dioxide, then power plants in the area would still be required to cut emissions above and beyond what the cap-and-trade program requires. Likewise, power plants subject to the existing sulfur dioxide emissions cap continue to be subject to new source review if they make physical changes at the facility that significantly increase air pollution levels.

The big difference between that 1990s debate and the debate now is, the administration is proposing that a cap-and-trade program for controlling airborne contaminants from power plants displace core Clean Air Act programs -- for example, the rollback of the New Source Review program, which requires that when older power plants modernize or upgrade their equipment in a way that significantly increases air pollution, they must also upgrade and modernize pollution controls.

Q: The New Source Review (NSR) program has been in effect for over 20 years. How effective has it been in regulating older plants?

Patton: One of the difficulties of measuring the benefits of New Source Review is that it's a preventative program - it prevents air pollution, as opposed to a program that requires all existing pollution sources to cut their emissions by 50% and is therefore easy to quantify. So New Source Review has important benefits that are difficult to quantify. The program's basic requirement for existing pollution sources - that older plants which rebuild, upgrade or add new equipment that will ramp up emissions in any significant way must modernize pollution equipment at the same time - is an eminently sensible policy: if you are making these major capital investments in your business and significantly increasing your pollution levels in the surrounding neighborhood, you also ought to be modernizing your pollution control systems.

The way the program works in practice to curb pollution is that a lot of businesses avoid ever being subject to New Source Review by deciding to make major capital investments in expanding widget production, for example, that results in an increase in pollution at one production line.  Typically, businesses then invest in offsetting pollution decreases at another unit at the facility where the pollution cuts are more cost-effective so that overall they have no net increase in air pollution to the atmosphere. So preventing these net pollution increases through efficient pollution offsets at a facility is a benefit of the program to the environment that nobody notices and never gets registered or calculated, but it works.

Q: Some critics of New Source Review have referred to this rollback as "streamlining" the regulations and making them more efficient? What do you say to that?

Patton: From industry's standpoint, the rollback gives them an incredible amount of flexibility because EPA will provide wide latitude for exemptions to the program so large industrial facilities can pollute a lot more and never be subject to the program - from industry's standpoint it is streamlining.

But it's really streamlining with a sledgehammer!

I think it is fair to say that we could  find ways to make the program better - better in terms of environmental performance and in terms of less burden on industry. I think that's a sensible public policy question to consider, but that's not what's going on here. Instead, the administration is taking a radical approach and saying, "Let's just get rid of the New Source Review altogether for existing industrial sources.

Q: Is the NSR rollback just a proposal at this stage?

Patton: There are two pieces of it. The EPA issued a proposed rule-making package in 1996 with a lot of exemptions for existing sources. EPA will finalize some of the most extreme elements of that rulemaking proposal within a few months.  At the same time, EPA is initiating another rule-making action that would make even more fundamental changes to NSR; those proposed changes will have to go through a whole review process, subject to public comment, and will be very  controversial.  

Q: The recent federal ruling on the EPA program to clean up haze in national parks said the program was in part unlawful. What does that mean exactly?

Patton: The haze program has a couple of key elements to it. There is the overarching requirement that we clean up the haze in national parks, restore visibility and prevent further degradation. That's the big broad goal under the Clean Air Act and what EPA put into its regulations. That key goal was challenged by utility and mining interests but was affirmed by the court.

However, one of the tools that was used to meet that goal was to have big industrial sources and power plants install the best available retrofit technology (BART) to address their contribution to regional haze. A ground-breaking report by the National Academy of Sciences in 1993 on the state of visibility in national parks instructed EPA to attack pollution from large industrial sources on a comprehensive region-wide basis. This is because haze air pollution in national parks and wilderness areas originates from many different sources over a broad geographic region. So in deciding who was to be subject to BART, the agency embraced a policy that "erred on the side of inclusivity." But the court ruled that the way EPA implemented that policy intruded too much on state's discretion. Basically the court said to EPA, you have to give states more flexibility, and told it to rework its interpretation of BART.  We recently filed a request for rehearing of the court?s decision and at the same time are working on strategies to address the court's concern in a manner that does not compromise the environmental effectiveness of the program.  

Q: What is Environmental Defense doing to safeguard our air quality and protect the gains of the last 30 years?

Patton: The real challenge over the next couple of years will be not only to defend our past Clean Air successes but also to press forward and secure new gains. In May, Environmental Defense and other concerned groups announced their intent to file a lawsuit against EPA to compel EPA to begin implementing the new health-based standards for ozone smog. That's what this smog lawsuit is about - pushing ahead and trying to make new gains in cleaning up our air in the face of great challenges by both the Bush administration and by industry.

Even though ozone and smog levels have decreased in some areas, they have increased in others. Further, we've had an old health standard for ozone that's been in place since 1979, and since then there has been a lot of scientific research that has shown that the public health effects of ozone are really worse than we realized, especially on children. In response to that body of scientific research, EPA issued a new, more rigorous standard in 1997, which has survived the key legal challenges.

But nothing has been done to implement the 1997 standard, and so what we're trying to do is to say to EPA to get on with the job of enforcing this new more protective ozone standard. And it's really critically important to protect the most vulnerable groups - children, the elderly and those who are active outdoors in the summer. The body of science that informed EPA's decision in 1997 has only become more compelling. Smog is a very serious problem, and we need to make sure the new standard is put into effect as soon as possible.

We have a number of other efforts under way to press EPA to implement the new health standard for fine sooty particles, which have especially deleterious impacts. We also are working hard to secure rigorous new emission standards for non-road engines such as construction equipment, industrial equipment and snowmobiles, and to obtain pollution cuts from power plants.  

And Environmental Defense is increasingly dedicating resources to pursue opportunities for progress at the state level, where we can leverage the strength of our regional offices to achieve important near-term clean air gains that can become a model for broader public policy action.  Recently, Environmental Defense staffer Michael Shore had a critical role in pressing the North Carolina legislature to enact an aggressive power plant clean up program. Similarly, Environmental Defense staffers Nancy Ryan and Jim Marston helped win the ground-breaking California legislation to establish greenhouse gas emission standards for automobiles. These two separate actions, in the southeast and the far west, are major steps forward that are reverberating across the national political landscape.

By Leslie Valentine