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Preventing Significant Deterioration Under the Clean Air Act: Baselines, Increments, and Ceilings--Part II

January 2006

Citation: ELR 10017

Author: John-Mark Stensvaag

Editors' Summary: The CAA's PSD program is extraordinarily complex. This Article, written in two parts, focuses on the root of the PSD implementation process--baselines, increments, and ceilings. After exploring the essential features of baselines, increments, and ceilings, Prof. John-Mark Stensvaag delves into to the complications that clutter up the theoretical simplicity of these features--complications flowing from statutory drafting, regulatory drafting, and interpretative choices made during the first 30 years of the program. Part I of this Article, which appeared in the December 2005 issue of News & Analysis, focused on baseline dates and baseline areas. In Part II, the author examines baseline concentrations, ceilings, and increment consumption. His analysis reveals two overarching themes about the program: (1) the PSD increment program is implemented to maximize industrial growth; and (2) implementation is tailored to avoid the establishment of baseline ambient air concentration values, to avoid the specification of ambient air quality ceilings, and to avoid the use of ambient air quality monitoring to determine compliance with the increment system.

John-Mark Stensvaag is Charlotte and Frederick Hubbell Professor of Environmental and Natural Resources Law at the University of Iowa College of Law. He received a J.D. from Harvard Law School in 1974 and a B.A. from Augsburg College in 1969. The author gratefully acknowledges the assistance of Sara Meinhard, Class of 2002.

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