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NEPA's Uncertainty Principle in the Federal Legal Scheme Controlling Air Pollution From Motor Vehicles

April 2005

Citation: ELR 10273

Author: Robert E. Yuhnke

The need to protect the public from the serious adverse health effects of motor vehicle emissions has been recognized as an important public health goal since the 1960s. Evidence of adverse health effects associated with vehicle emissions of carbon monoxide (CO), benzene, ozone, and lead was the primary driving force behind the enactment of the Air Quality Act of 1967, which set in motion the federal regulation of tailpipe emissions from motor vehicles. The environmental impacts of highways were also cited as a major factor behind the enactment in 1969 of the National Environmental Policy Act (NEPA). The growing pall of pollution that shrouded most large U.S. cities contributed to the groundswell for action that lead President Richard M. Nixon to call for enactment of what became the Clean Air Act (CAA) of 1970, and the leadership of the U.S. Senate Air Pollution subcommittee to add air pollutant control provisions to the 1970 Amendments to the Federal-Aid Highway Act (Highway Act). Together, these three statutes provide the framework for all federal efforts, and most state programs, to protect the public from the health effects of vehicle emissions.

Despite the enactment after NEPA of broad, regulatory statutes aimed at controlling emissions from motor vehicles and mitigating the adverse environmental effects of highways, NEPAcontinues to play an important role in decisions affecting the assessment and mitigation of impacts attributable to air pollution from vehicles and highways. One of NEPA's most important contributions may be the rule that requires agencies to fill major data gaps by obtaining new information needed to provide meaningful consideration of the comparative impacts of alternatives.

After receiving a degree from Yale Law School in 1972, Robert Yuhnke served as a Special Assistant Attorney General responsible for environmental enforcement, including major litigation to require compliance with the Pennsylvania state implementation plan at steel mills. Yuhnke also provided legal support to the Air Quality Bureau in the adoption of the nation's first regulations for the control of coke oven emissions. He later served as Associate Regional Solicitor for the western region of the Office of Surface Mining in the U.S. Department of the Interior. In 1980, Yuhnke became the senior Clean Air Act (CAA) attorney at the Environmental Defense Fund (EDF) where he directed litigation and political strategies, including a campaign that forced copper smelters in the West to reduce sulfur dioxide emissions by over 90%. Yuhnke launched EDF's national transportation project and organized the broad-based coalition that resulted in enactment of transportation conformity as part of the CAA Amendments of 1990. Since 1992, he has maintained an independent law and consulting practice representing national and local environmental organizations and state and local governments in CAA, National Environmental Policy Act, and highway litigation, and the development of policies to protect public health from vehicle emissions.

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