PDF _ IB10137 - Clean Air Act Issues in the 109th Congress
15-Jun-2006; James E. McCarthy; 18 p.

Update: July 25, 2006

On March 17, 2006, the U.S. Court of Appeals for the D.C. Circuit struck down an EPA rule that would have exempted most equipment replacement projects at power plants and other industrial sites from requirements to install pollution control equipment under the New Source Review provisions of the Clean Air Act. In a 3-0 decision, the court held that the EPA’s attempt to change the NSR regulations was “contrary to the plain language” of the act.

On January 17, 2006, the Environmental Protection Agency proposed revisions to the National Ambient Air Quality Standards for particulate matter. The new standards, which were subject to public comment until April and will be finalized in some form in September 2006, would cut the allowable concentration of fine particles in the air averaged over 24-hour periods almost in half, from 65 micrograms per cubic meter (?g/m3) to 35 ?g/m3, avoiding several thousand premature deaths annually. The EPA Administrator proposed to leave the annual standard for fine particles unchanged at 15 ?g/m3, despite the recommendation of his independent scientific advisory committee that it be reduced to 13 or 14. The committee strongly disagrees with the Administrator, and took the unprecedented step of urging him to reconsider the proposal. The proposed changes are expected to increase the number of counties in nonattainment areas from 208 to at least 283. More stringent standards might have tripled the number of counties with readings above the standard, according to the agency.

Previous Releases:

Abstract: The courts and the executive branch face major decisions on clean air issues in 2006, with Congress more likely playing an oversight role. One focus is EPA’s Jan. 17, 2006 proposal to strengthen air quality standards for fine particles, which are estimated to cause tens of thousands of premature deaths annually. Whether the proposal is supported by the available science and what impact its implementation would have are likely issues of concern. Other issues of continuing interest are EPA’s 2005 decisions limiting interstate transport of air pollution and establishing capand- trade systems for emissions from coalfired power plants, and the agency’s proposed changes to New Source Review. All of these issues face court challenges.

Congress acted on several Clean Air Act (CAA) issues in legislation that it passed and sent to the President in late July 2005. The most significant of these issues, dealing with ethanol and reformulated gasoline (RFG), were addressed in the Energy Policy Act of 2005, H.R. 6 (P.L. 109-58). The act eliminates a requirement that RFG, used in the nation’s most polluted areas, contain at least 2% oxygen. In its place, the act requires that the total gasoline supply contain increasing amounts of renewable fuels, the most likely being ethanol.

Congress also amended the Clean Air Act in H.R. 3 (P.L. 109-59), the transportation bill that the President signed August 10, 2005. H.R. 3 addresses the requirement that state and local transportation planners demonstrate conformity between their transportation plans and the timely achievement of air quality standards. Under the act, the frequency of conformity determinations and the time horizon over which conformity must be demonstrated will both be reduced. Failure to demonstrate conformity can lead to a temporary suspension of federal highway funds.

Other Clean Air Act amendments appear to have stalled. A bill that would have established a cap-and-trade program for emissions of sulfur dioxide (SO2), nitrogen oxides (NOx), and mercury from coal-fired electric power plants was among the first items on the agenda of the 109th Congress: S. 131 (the Clear Skies Act) was scheduled for markup by the Senate Environment and Public Works Committee March 9, 2005. But the committee failed to approve the bill, on a 9-9 tie vote, in large part because of complaints that the bill would weaken existing Clean Air Act requirements. Another issue in the debate was whether to cap emissions of carbon dioxide (CO2) in addition to the other three pollutants. With Clear Skies stalled, EPA finalized the Clean Air Interstate Rule (CAIR), which will cap emissions of SO2 and NOx from power plants in 28 eastern states and the District of Columbia and establish a cap-and-trade system through regulation.

A deadline for mercury regulations helped drive the Clear Skies debate: EPA faced a judicial deadline of March 15, 2005, to promulgate standards for power plant mercury emissions. The agency met this deadline, but the specific regulations have been widely criticized. A resolution to “disapprove” (overturn) the regulations under the Congressional Review Act (S.J.Res. 20) was defeated on a vote of 51-47, September 13, 2005, but the courts have yet to rule on challenges filed by 15 states and other groups. Whether to modify other requirements of the Clean Air Act (New Source Review, deadlines for nonattainment areas, and provisions dealing with interstate air pollution) have also been contentious issues.

 [read report]

Topics: Air, Legislative

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