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Monday, August 15, 2011

Clean Air Issues in the 112th Congress

James E. McCarthy
Specialist in Environmental Policy

Air quality has improved substantially in the United States in the 40 years of EPA’s Clean Air Act regulation, but more needs to be done, according to the agency’s science advisers, to protect public health and the environment from the effects of air pollution. Thus, the agency continues to promulgate regulations addressing air pollution using authority given it by Congress more than 20 years ago. In the 112th Congress, Members from both parties have raised questions about the costeffectiveness of some of these regulations and/or whether the agency has exceeded its regulatory authority in promulgating them. Others in Congress have supported EPA, noting that the Clean Air Act, often affirmed in court decisions, has authorized or required the agency’s actions. This report focuses on three of the most controversial areas of interest: greenhouse gas (GHG) regulations, emissions from power plants, and ambient air quality standards.

EPA regulatory actions on GHG emissions have been a major focus of congressional interest. Although the Obama Administration has consistently said that it would prefer that Congress pass new legislation to address climate change, EPA has developed GHG regulations using its existing Clean Air Act authority over the last two years. On December 15, 2009, the agency finalized an “endangerment finding” under Section 202 of the 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, in turn, triggered permitting and Best Available Control Technology requirements 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 has been considered in both the House and Senate aimed at preventing EPA from implementing these requirements. Since February, the House has passed H.R. 1, which contained provisions prohibiting the use of appropriated funds to implement various EPA GHG regulatory activities, and H.R. 910, a bill that would repeal EPA’s endangerment finding, redefine “air pollutants” to exclude greenhouse gases, and prohibit EPA from promulgating any regulation to address climate change. In the Senate, H.R. 1 was defeated, but the chamber moved on to consider GHG amendments in debate over S. 493, a small business innovation bill. An amendment identical to H.R. 910 (S.Amdt. 183) failed on a vote of 50-50. As of late July, the House was considering provisions similar to those in H.R. 1 again in H.R. 2584, the Interior, Environment, and Related Agencies Appropriations Act for Fiscal Year 2012.

Besides addressing climate change, EPA has taken action on a number of air pollutant regulations, generally in response to the courts. Several of EPA’s regulatory decisions under the Bush Administration 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 finalized a replacement for CAIR July 6, 2011, and proposed regulations for power plant emissions of mercury and other hazardous air pollutants March 16, 2011. A boiler MACT rule was finalized February 21 (although the agency immediately began its reconsideration). Some in Congress have wanted to address these emissions through new legislation; others are interested in using legislation to prevent EPA from implementing standards they view as too stringent. In addition to the power plant and boiler rules, EPA is also reviewing ambient air quality standards for ozone and other widespread air pollutants. These standards serve as EPA’s definition of clean air, and drive a range of regulatory controls.

Date of Report: August 1, 2011
Number of Pages: 26
Order Number: R41563
Price: $29.95

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