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Monday, January 28, 2013

Clean Air Issues in the 113th Congress: An Overview

James E. McCarthy
Specialist in Environmental Policy

Air quality has improved substantially in the United States in the 40 years of the Environmental Protection Agency’s Clean Air Act regulation. According to the agency’s science advisers and others, however, more needs to be done to protect public health and the environment from the effects of air pollution. Thus, the agency continues to promulgate regulations using authority given it by Congress in amendments to the Clean Air Act more than 20 years ago. In the 112th Congress, Members from both parties raised questions about the cost-effectiveness of some of these regulations and/or whether the agency had exceeded its statutory 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. Similar issues are likely to be raised in the 113th Congress.

EPA’s regulatory actions on greenhouse gas (GHG) emissions have been one focus of congressional interest. Although the Obama Administration has consistently said that it would prefer that Congress pass new legislation to address climate change, such legislation now appears unlikely. Instead, over the last three years, EPA has developed GHG emission standards using its existing Clean Air Act authority. On December 15, 2009, the agency promulgated an “endangerment finding” for GHGs under Section 202 of the act. Relying on this finding, the agency promulgated GHG emission standards for cars and light trucks on May 7, 2010, and October 15, 2012, and for larger trucks, on September 15, 2011. The implementation of these standards, in turn, triggered permitting and Best Available Control Technology requirements for new major stationary sources of GHGs (power plants, manufacturing facilities, etc.).

It is the triggering of standards for stationary sources 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. The House passed several of these bills in the 112
th Congress, but none of them passed the Senate.

Besides addressing climate change, EPA has taken action on a number of other air pollution regulations, generally in response to court actions remanding previous rules. Remanded rules included the Clean Air Interstate Rule (CAIR) and the 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. Other remanded rules included hazardous air pollutant standards for boilers and cement kilns (standards referred to as “MACT” standards). EPA has addressed the court remands through new regulations, but many in Congress view these regulations as overly stringent. In the 112
th Congress, the House passed four bills (H.R. 2250, H.R. 2401, H.R. 2681, and H.R. 3409) to delay or revoke the new standards and change the statutory requirements for their replacements. None of these passed the Senate.

In addition to these rules, EPA is also reviewing ambient air quality standards (NAAQS) for ozone, particulates, and other widespread air pollutants. These standards serve as EPA’s definition of clean air, and drive a range of regulatory controls. The revised NAAQS and EPA’s review process have also faced opposition in Congress. As passed by the House in the 112
th Congress, H.R. 2401 and H.R. 3409 would have amended the Clean Air Act to require EPA to consider feasibility and cost in setting NAAQS, reversing a unanimous 2001 Supreme Court decision that the law requires standards based on health considerations alone. The Senate did not pass either measure.

Date of Report: January 4, 2013
Number of Pages: 20
Order Number: R42895
Price: $29.95

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