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Monday, May 17, 2010

Clean Air Issues in the 111th Congress

James E. McCarthy
Specialist in Environmental Policy

EPA regulatory actions on greenhouse gas (GHG) emissions using existing Clean Air Act authority have been the main focus of congressional interest in clean air issues in recent months. Although the agency and the Obama Administration have consistently said that they would prefer that Congress pass legislation to address climate change, EPA has begun to develop regulations using its existing authority. On December 15, 2009, the agency finalized an "endangerment finding" under Section 202 of the Clean Air Act, which permits it (in fact, requires it) to regulate pollutants for their effect as greenhouse gases for the first time. Relying on this finding, EPA promulgated GHG emission standards for cars and light trucks, April 1. The implementation of these standards will, in turn, trigger permitting requirements and the imposition of Best Available Control Technology for new major stationary sources of GHGs in January 2011. 

It is the triggering of standards for stationary sources (power plants, manufacturing facilities, and others) that has raised the most concern in Congress: legislation has been introduced in both the House and Senate aimed at preventing EPA from implementing these requirements. The legislation has taken several forms, including the introduction of resolutions of disapproval for the endangerment finding itself under the Congressional Review Act, and stand-alone legislation that would forestall specific EPA regulatory actions. Meanwhile, EPA has itself proposed regulations and guidance that will limit the applicability of Clean Air Act GHG requirements, delaying the applicability of requirements for all stationary sources until 2011, focusing its regulatory efforts on the largest emitters, and granting smaller sources at least a six-year reprieve. 

The endangerment finding and EPA's other actions, which were triggered by a 2007 Supreme Court decision, come as Congress continues to struggle with climate change legislation. On June 26, 2009, the House narrowly passed H.R. 2454, a 1,428-page bill addressing a number of interrelated energy and climate change issues. The bill would establish a cap-and-trade program for greenhouse gas (GHG) emissions, beginning in 2012. In the Senate, both the Environment and Public Works Committee and the Energy and Natural Resources Committee have reported bills (S. 1733 and S. 1462), but action subsequently bogged down, while a trio of Senators began negotiating a climate bill from scratch. As the clock winds down on the current Congress, it becomes less likely that climate legislation will be enacted, and more likely that EPA's actions will be the principal U.S. response to climate issues for now. 

Besides addressing climate change, EPA has taken action on a number of conventional air pollutants, generally in response to the courts. Several Bush Administration regulatory decisions were vacated or remanded to the agency: among them, the Clean Air Interstate Rule (CAIR)—a rule designed to control the long-range transport of sulfur dioxide and nitrogen oxides from power plants, by establishing a cap-and-trade program—and the Clean Air Mercury Rule, which would have established a cap-and-trade program for power plant mercury emissions. EPA will address these court decisions through new regulations—the agency expects to propose a replacement for CAIR in May or June. Congress could also address these issues through legislation, an approach that might reduce the likelihood of further court challenges. The agency is also in the midst of reviewing ambient air quality standards for the six most widespread air pollutants. These standards serve as EPA's definition of clean air, and drive a wide range of regulatory controls. 

This report provides an overview of clean air legislative and regulatory issues. More detailed information on most of the issues can be found in other CRS reports, which are referenced throughout this report.

Date of Report: May 5, 2010
Number of Pages: 31
Order Number: R40145
Price: $29.95

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