¶ … Skies 2003, etc. Clear Skies 2003/Clean Air Act of 1990

The issue of clean air has been around probably since the first caveman objected to the smoke from a neighbor's fire. During the Industrial Revolution in England, numerous contemporary novels make reference to the condition of the air in major cities, fouled by the new growth of smokestacks. So, despite having been an issue for public discussion and legislative activity -- followed by the usual rounds of legal tests in the courts -- the issue of clean air officially floated into view in the U.S. only during the term of Richard Nixon. During the administrations of both Jimmy Carter and George Bush, clean air legislation was strengthened, and in 1990, the inclusive Clean Air Act (CAA) became law. (Browner 1997)

At times, the CAA has been touted as the embodiment of a bipartisan desire to protect all Americans form the harmful effects of breathing polluted air. Built into the law was the requirement that the Environmental Protection Agency (EPA) review the public health-standards for the six major air pollutants every five years. This is to allow for the most current science to be used in determining and remediating dangers, and to ensure that the government could not simply tell the citizens that their air was healthy to breathe when it was not. (Browner 1997)

The Clean Air Act of 1990 was one of the most technically and legally complex laws, as well as being one of the nation's oldest, (Friedman 2003), but it had teeth.

The law established the National Ambient Air Quality Standards (NAAQS) and required nationwide monitoring to measure and characterize and area's air quality in terms of the NAAQS. No matter at what level of air quality a location started out, any business growth involving emissions, under the CAA, was highly regulated. (Friedman 2003)

It is the relaxing of that requirement and others like it that has dozens of action groups fighting adoption of President George W. Bush's Clear Skies 2003 measures.

Of course, the Bush proposal is not the first time the CAA has been in danger of being watered down, but generally, it has not been through legislative action but rather procedural issues within the EPA and/or court case results.

As an example of the confusion that has threatened the CAA before the current attempt to replace it with Clear Skies is the issue of particulates, one of the emission types the CAA sought to regulate.

In 1994, the EPA argued in court that it would take at least four years for the science to be available that would yield a defensible position on particulates. Only two years later, the EPA was proposing regulations regarding particulates that could be added to the law. That would indicate that the science they were waiting for previously, when they were fighting courts concerning making industry toe the CAA line, had caught up to the problem. One could, then, consider the known health effects of particulates to be definitive; still, the EPA sought funding in 1998 to study the "uncertainties" of particulate-matter health effects. (Browner 1997)

When the EPA did decide on standards, there have been three ways to enforce adherence to them. Under the CAA, EPA has a general duty to enforce the law. If EPA determines any person or company is in violation, it notifies the person and the state in which the problem is occurring. The state then has 30 days to enforce compliance. IF it fails to do so, EPA may enforce the programs directly. (Friedman 2003) But the law is written so that each state has its own powers in enforcing federal clean air standards; the only trick is that the federal government doesn't give the states any choice in the matter. And, of course, that means that citizens who feel they have been injured by a person or company out of compliance can sue the state, as well as the company/individual.

Even before the issue goes to the point of lawsuits or criminal prosecution, both of which are possible under CAA, EPA has very sharp teeth in making sure the states comply with the federal standards.

Richard H. Friedman, an attorney writing for FindLaw, notes:

Whenever EPA finds that a state is not acting in compliance with NSR requirements, it may prohibit the construction or modification of any major stationary source, issue administrative penalties or bring a civil enforcement action.

Nor is that the worst of...

EPA may also seek a penalty of up to $25,000 per day for each violation, in addition to numerous other aspects of federal civil enforcement. (Friedman 2003)
The law also provides for federal criminal enforcement, with stringent penalties, with imprisonment of up to five years and a sizeable fine, for knowing violations. Tampering with equipment required to detect emissions also bears prison time and fines.

Some of the biggest teeth in the law, however, belong to ordinary citizens, who, after the 1990 CAA Amendments, can commence a civil action against any person or entity, including the United States, who violates an emissions standard, violates and EPA administrative order or proposes to construct or actually constructs any new or modified major emitting facility without the preconstruction permit required for a nonattainment or an attainment area.

The value of these provisions, however depends in part on the stringency of the requirements of the law, and therein lies more of the controversy surrounding George W. Bush's Clear Skies legislation. According to abundant commentators and sources, Clear Skies takes the wind out of the sails of Clean Air.

One of the pegs on which Bush hangs his hat is the necessity, with the five-year periodicity of the CAA, of business needing a crystal ball to construct plants that will be environmentally workable five years down the road, according to some critics of CAA. But others believed that CAA offers ample opportunity to craft protective permits, as long as businesses use the tools already written into the regulations to their own competitive advantage. (Friedman 2003)

George W. Bush's Clear Skies legislation promises more affordable energy, more jobs and cleaners skies, according to Mr. Bush. He claimed it would improve upon the gains achieved since passage of the CAA. And, in mid-September 2003, he gathers about 100 supporters from Congress and industry to the White House East Garden so he could jawbone about it. Bush called the CAA "counterproductive," and his own plan "good, common-sense legislation." (CBS News 2003)

While such groups as the Republicans in Congress, the U.S. Chamber of Congress and the American Trucking Associations endorsed the 'cap and trade plan,' numerous health and environmental organizations oppose it.

Cap and trade" refers to the Clear Skies legislation's phasing in of caps on emissions from coal burning plants emitting nitrogen oxide, which causes smog, and sulfur dioxide, responsible for soot and acid rain. For the first time, it would also add mercury to emissions to be controlled.

The "cap and trade" aspect of the plan would mean that, de facto, the three compliance methods above -- federal civil and criminal sanctions and the ability of citizens to bring civil suits regarding CAA violations -- would no longer be needed. Under Bush's plan, utilities that exceed their pollution limits could purchase 'pollution credits' from other energy producers whose emissions are lower and "who choose to sell their ability to pollute." (CBS News 2003)

It is impossible to write about this proposal without wondering, and not completely tongue in check, if individuals who have, for example, extraordinary medical costs and get their income tax down below zero might be allowed to sell their excess deductions to some poor healthy worker who lacks sufficient deductions to bring his taxes into the zero bracket if similar legislation could be proposed for IRS compliance requirements.)

Bush declared that his Clear Skies legislation would be good for those who work for a living, by combining the ethic of good stewardship and a spirit of innovation. He also suggested it would be good for the health of the U.S. economy.

And lots of people disagreed with him. "Even though it would be a reduction, it is significantly less than the Clean Air Act would require over time," said the National Audubon Society's Bob Perciasepe, former EPA assistant administrator for air during the Clinton administration. (CBS News 2003)

The director of the Environmental Integrity Project and also formerly of the EPA, said Clear Skies is a sham because it would leave communities near older power plants unprotected with no hope of cleaner air in the future. A dirty plant could buy emissions credits from a clean plant a thousand miles away, and keep on showering its neighbors with whatever it wanted to.

One has to wonder, then, if it would be sensible for people with old gas-guzzling, fume-causing cars to buy credits from owners of the new hybrids, and avoid having to have their cars emission checked -- and repaired -- in states requiring that. Patently, it would not. Such a scheme would do nothing to reduce emissions overall, and certainly nothing to reduce emissions on the streets where the gas-guzzler was driven.)

While Congress…