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Friday, February 11, 2011

Clean Air Issues in the 112th Congress

James E. McCarthy
Specialist in Environmental Policy

Although air quality has improved substantially in the United States in the 40 years of EPA’s Clean Air Act regulation, many issues remain unresolved, and, in recent months, members of Congress from both parties have raised questions regarding the cost-effectiveness of, and authority for, EPA actions. This report focuses on three general areas of likely interest to the 112th Congress: greenhouse gas (GHG) regulations, emissions from power plants (including interstate pollution and mercury emissions), and air quality standards.

EPA regulatory actions on 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 Obama Administration and EPA spokespersons 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 requires it to regulate pollutants for their effect as greenhouse gases for the first time. Relying on this finding, EPA finalized GHG emission standards for cars and light trucks on April 1, 2010. The implementation of these standards has, in turn, triggered permitting requirements and the imposition of Best Available Control Technology for new major stationary sources of GHGs as of January 2, 2011.

It is the triggering of standards for stationary sources (power plants, manufacturing facilities, etc.) that has raised the most concern in Congress: legislation was introduced in both the House and Senate in the 111
th Congress—but not enacted—aimed at preventing EPA from implementing these requirements, and similar legislation is being introduced in the 112th. The bills have taken several forms, including resolutions of disapproval for EPA regulatory actions under the Congressional Review Act, stand-alone legislation that would forestall specific EPA regulations, and restrictions on EPA’s spending authority. Meanwhile, EPA has itself promulgated regulations and guidance delaying the applicability of requirements for stationary sources and focusing its regulatory efforts on the largest emitters while granting smaller sources at least a 6-year reprieve.

EPA’s GHG regulatory actions have come as Congress struggled with climate change and energy legislation. In the 111
th Congress, the House narrowly passed a bill establishing a comprehensive GHG regulatory program (H.R. 2454), but comparable legislation (S. 1733 and S. 1462) did not reach the Senate floor. In recent months, congressional attention has focused on renewable or “clean” energy legislation, rather than legislation to address greenhouse gas emissions.

Besides addressing climate change, EPA has taken action on a number of air pollutant regulations, 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) and Clean Air Mercury Rule—rules designed to control the long-range transport of sulfur dioxide, nitrogen oxides, and mercury from power plants through cap-and-trade programs – and hazardous air pollutant (“MACT”) standards for boilers. EPA is addressing these court decisions through new regulations—the agency proposed a replacement for CAIR July 6, 2010, and is expected to propose regulations for power plant emissions of mercury and other hazardous air pollutants in March 2011. The boiler MACT rule is to be promulgated February 21. Some in Congress have wanted to address these issues through legislation, while others are interested in using legislation to prevent EPA from implementing standards they view as too stringent. 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.

Date of Report:
February 3, 2011
Number of Pages: 23
Order Number: R41563
Price: $29.95

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