28 ELR 10155 | Environmental Law Reporter | copyright © 1998 | All rights reserved

The New Air Quality Standards, Regional Haze, and Interstate Air Pollution Transport

Editors' Summary: Combatting interstate air pollution is one of the major challenges in the effort to improve air quality. For decades, federal legislation has addressed this problem, but with little success. Now, with EPA's adoption last year of new ozone and fine particulate matter standards, this issue is receiving even more attention.

This Article, written by an attorney with EPA's Office of General Counsel, examines the history of federal legislation and policies that address interstate air pollution. The Article begins with an analysis of the first national air pollution legislation, which was enacted in 1955. It then discusses federal air statutes down to, and including, the Clean Air Act Amendments of 1990. Finally, it examines relevant programs under the 1990 amendments, as well as their influence on new presidential policies. In an upcoming Article, the author will examine two key topics related to transboundary air pollution — environmental federalism and presidential interstate air pollution control policies.

Ms. Patton is an attorney with the U.S. Environmental Protection Agency's (EPA's) Office of General Counsel in Washington, D.C. She received her B.S. in 1987 from the University of Arizona and her J.D. in 1990 from New York University School of Law. This Article was written solely in the author's private capacity and the views expressed do not reflect those of EPA.

[28 ELR 10155]

When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasisovereign interests ….

….

It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source.

Justice Oliver Wendell Holmes in Georgia v. Tennessee Copper Co.¹

Ninety years after Justice Holmes recognized the state of Georgia's right to be protected against the adverse transboundary air pollution emanating from the Tennessee Copper Company, the nation is still grappling with interstate air pollution problems. However, the problems now exist on a much grander scale. With the adoption of the new ozone and fine particulate air quality standards and the U.S. Environmental Protection Agency's (EPA's) proposed regional haze program to protect visibility in national parks and wilderness areas,² the issue of interstate air pollution has assumed center stage in the national air quality policy arena.

[28 ELR 10156]

The technical, administrative, and political challenges associated with characterizing and abating interstate air pollution transport are among the reasons many eastern states have long been unable to attain the national ambient air quality standards (NAAQS) for ozone. With the tightening of the ozone standard and the addition of new standards for fine particles, which are highly susceptible to interstate transport,³ the need to address interstate air pollution effectively and efficiently is now even greater. Additionally, in the rulemaking examining both the health and welfare effects of fine particles, EPA determined that the impacts of fine particles on visibility (a key welfare effect) would be addressed most effectively by augmenting the health-based fine particle standards with a regional visibility program for national parks and wilderness areas.⁴ To effectuate this strategy, EPA issued a proposed rule to curb regional haze caused by interstate air pollution, soon after the fine particle standards were adopted. The proposed visibility rule is expected to require additional fine particle emissions reductions beyond those that will be necessary to meet the new NAAQS, especially in the western United States.

A presidential memorandum, issued in conjunction with the new air quality standards for ozone and fine particles, establishes a blueprint for implementing the standards. The presidential memorandum takes an important, and dramatic, step in acknowledging the need for interstate air pollution control strategies. Since the adoption of the 1970 Clean Air Act, which originally provided for nationwide air quality standards, EPA has resisted restrictions on downwind pollution transport or allocating emissions reduction responsibilities among states to address transboundary pollution. The presidential memorandum signals the end of EPA's laissez-faire interstate transport policies, directing EPA to structure implementation "to respond to the fact that pollution travels hundreds of miles and crosses many State lines."⁵

In setting forth the broad contours of an implementation strategy, the presidential memorandum endeavors to integrate and build on a number of major initiatives examining interstate air pollution problems. The Ozone Transport Assessment Group, the Grand Canyon Visibility Transport Commission, and the Clean Air Act Advisory Subcommittee on Ozone, Particulate Matter, and Regional Haze Implementation have issued recommendations to EPA to address pollution transport of ozone and fine particles that informed both the presidential implementation strategy for the new NAAQS and EPA's proposed regional visibility protection program. In implementing these programs over the next several years, EPA and the states will fill in these broad contours. As illustrated by EPA's recent proposal to require reductions across the eastern United States to mitigate interstate emissions of nitrogen oxides (NO_x,⁶ a key constituent in the photochemical reactions that form ground-level ozone, addressing interstate pollution will be one of the most important and challenging issues in implementing the new NAAQS and regional haze program.

This is the first of two Articles examining interstate air pollution issues in light of EPA's new ozone and particulate standards, and its proposed regional haze program. This Article reviews the history of interstate air pollution policies under the Clean Air Act and prior national legislation to provide historical perspective on the obstacles EPA and the states now face in restructuring and enhancing interstate air pollution policies. The Article analyzes the genesis of the Clean Air Act and the initial national policy focus on interstate air pollution. It then analyzes two decades of EPA laissez-faire interstate transport policies under the modern Clean Air Act. Finally, it examines the transport-related programs under the 1990 amendments to the Act, focusing on those that have influenced the new presidential policies.

The second Article, which will appear in an upcoming issue of ELR — The Environmental Law Reporter, will examine two central topics related to transboundary air pollution. Environmental federalism — the proper allocation of federal and state responsibilities in protecting environmental quality — has emerged as an important issue for state and national decisionmakers. The Article will examine the analytical bases for a federal role in addressing interstate air pollution to assess whether there is a sound rationale for federal involvement. The Article also will explore issues and potential pitfalls associated with the presidential interstate air pollution control policies and other related initiatives.

The Early Federal Legislation: Interstate Air Pollution Abatement Proceedings and Air Quality Control Regions

The discussion below examines key pieces of national legislation that are antecedents to the modern Clean Air Act. The legislation includes the original national air pollution legislation in 1955, which provided for air pollution-related research; the Clean Air Act of 1963, which provided for federal pollution abatement of interstate air pollution; the 1965 amendments, which were designed to address pollution from motor vehicles; and the Air Quality Act of 1967, which provided for intra-and interstate regional planning to combat air pollution problems. As a general matter, the early [28 ELR 10157] federal statutes were remarkably concerned with interstate air pollution impacts but relatively ineffective in addressing them.⁷

Act of July 14, 1955

The first federal air pollution legislation was enacted in 1955 and was two pages in length.⁸ The 1955 statute was nonregulatory. It authorized federal technical and financial support for state and local governments. The U.S. Surgeon General was authorized to supervise air pollution research and disseminate the findings. The law authorized appropriations for the then-Department of Health, Education, and Welfare (HEW) to support the research initiatives and to provide grants to state and local air pollution control agencies. The statute generally called for the Surgeon General to encourage cooperative air pollution protection activities by state and local governments,⁹ but did not specifically mention interstate air pollution concerns.

Clean Air Act of 1963

Interstate air pollution abatement was a centerpiece of the 1963 statutory amendments.¹⁰ The interstate air pollution abatement procedures were the only provisions in the statute that authorized federal protection of air quality without a state first requesting federal involvement. The federal government could not independently initiate an air pollution abatement proceeding or judicially enforce its results unless it was addressing interstate air pollution.¹¹

It is not surprising that the first independent federal air pollution control authority concerned interstate air pollution. Pollution that emanates from an upwind state eludes the jurisdictional reach of the receptor state. The downwind state may therefore need federal assistance to abate the pollution. Further, congressional authorization for federal action in such circumstances is firmly grounded in the congressional power to regulate matters affecting interstate commerce. Prudently, the first federal foray into air quality management involved an area where the federal interests were manifest and legally unimpeachable.

However, the interstate air pollution abatement program under the 1963 Act was of limited effectiveness. It involved cumbersome procedures, and abatement could be judicially enforced only after repeated failure by the upwind source to implement remedial action. The process was initiated with an intergovernmental conference, which could be convened at the behest of a downwind state or on HEW's own initiative.¹² Based on the findings of the conference, HEW could recommend remedial action.¹³ If not implemented, a follow-up public hearing could be held to again consider abatement measures.¹⁴ If remedial measures were recommended and again not implemented, HEW could refer the matter to the U.S. Attorney General for enforcement.¹⁵

The difficulty of enforcing remedial action under the burdensome procedures was illustrated by an interstate pollution dispute between the state of Delaware and an upwind pollution source in Maryland. Delaware requested federal abatement of emissions from the Bishop Processing Company's rendering and animal reduction plant in Bishop, Maryland, which was polluting the air in nearby Shelbyville, Delaware.¹⁶ The panoply of procedures necessary to actually abate the pollution included an abatement conference, recommended remedial measures, a follow-up public hearing, further call for remedial action, and ultimate enforcement. Implementation of this process spanned several years and involved several lawsuits.¹⁷

The abatement provisions were invoked in nine interstate areas,¹⁸ with mixed results. In addition to the difficulty in controlling pollution at the Bishop Processing Company facility, the abatement process was criticized as being protracted and ineffective in reducing air pollution in the Marietta, Ohio/Parkersburg, West Virginia, interstate area.¹⁹ Abatement proceedings were commenced in three large interstate urban areas: New York/New Jersey; Kansas City, Missouri/Kansas City, Kansas; and the Washington, D.C. metropolitan area. The results in these areas were somewhat [28 ELR 10158] more successful, yielding reductions of sulfur dioxide (SO₂) and particulate emissions.²⁰

Generally, the interstate air pollution abatement proceedings were not a very effective way to protect public health and welfare. Most notably, they were not preventive since the statute authorized abatement action only when air pollution was endangering public health or welfare.²¹ Further, the protracted procedures precluded a swift response once abatement was deemed necessary.

Nevertheless, the abatement process had key features that are critical to any interstate air pollution control policies. The abatement process began with a public, intergovernmental conference. Strong intergovernmental cooperation is integral to effectively addressing interstate transport. Further, the public conferences educated citizens about interstate air pollution problems and generated public support for abatement action.²²

While public education and support is needed to address any important environmental problem, it is especially imperative in addressing interstate pollution problems. Policy-makers face the considerable challenge of not only gaining support for emissions reductions in light of the potential economic impacts, but of reducing pollution because of its effects in another jurisdiction many miles distant. The second Article in this series further examines the contemporary importance of building strong intergovernmental cooperation, and engaging in public education and outreach, as a foundation for implementation of the new NAAQS and regional haze program.

Motor Vehicle Air Pollution Control Act of 1965

Concerned that pollution from motor vehicles was a major contributor to the nation's air pollution, Congress amended the Clean Air Act in 1965 to combat this problem.²³ The amendments added a major new program to the Clean Air Act, authorizing HEW to establish and enforce emission standards for new motor vehicles.

Congress was propelled to issue national standards for a few reasons. In 1964, California had adopted motor vehicle emission standards and several other states likewise had established or were contemplating standards.²⁴ Congress was concerned that compliance with varying state standards would unduly burden the automobile industry.²⁵

Congress also was concerned that because motor vehicles were ubiquitous and highly mobile, a state's efforts to protect its air quality from motor vehicle pollution could be undermined by another state's inaction. Nationwide standards would protect states from motor vehicles originating in unregulated jurisdictions.²⁶

Thus, early in its efforts to protect the nation's air quality Congress confronted a new wrinkle in the interstate air pollution problem, involving the transboundary consequences of pollution sources that readily move from one jurisdiction to another. Congress found that some air pollution sources were so highly mobile and pervasive in commerce that they could elude adequate regulation by a single state. Vehicles originating in a state with lax motor vehicle emission standards could readily carry their pollution across state lines.

Federal regulation of mobile sources and other so-called federal sources has substantially broadened in ensuing adjustments to the law. Congress has since authorized federal regulation of light-duty trucks, motor vehicle fuels, nonroad engines, locomotives, urban buses, aircraft, and consumer and commercial products,²⁷ placing varying degrees of emphasis on the prevalence of the pollution sources, their mobility, and the compliance costs of disparate state standards. This Article does not closely examine the subsequent legislative developments regarding the regulation of mobile and other similar sources. Nevertheless, direct federal regulation of some air pollution sources may be an important tool to attack interstate air pollution problems.

While interstate air pollution may very well be a factor in establishing minimum national standards for specific air pollution sources, it should not be confused as a basis for legislating uniform or preemptive national standards. Mandatory uniform national standards establish a federal ceiling that prohibits adoption of more stringent state standards, simultaneously prescribing and constraining air pollution remediation.

There is no air quality-related reason to constrain an upwind or downwind state's ability to regulate more stringently. The freedom of upwind or downwind states to adopt more stringent state standards enables states to further mitigate inter- or intrastate effects not addressed by minimum national standards. Thus, while interstate air pollution may inform the adoption of minimum regional or national standards for certain sources, the somewhat extraordinary decision to legislate preemptive standards should involve the measured and overriding calculus that disparate state standards [28 ELR 10159] will unduly burden the trade of goods in interstate markets.²⁸

Air Quality Act of 1967

A fundamental change occurred with the 1967 Act.²⁹ The air pollution abatement procedures were supplemented with decentralized air quality management. Congress for the first time prescribed a system for air quality planning based on ambient air quality standards. This is in contrast to the 1963 Act's provision for after-the-fact pollution abatement based on an unspecified level of pollution deemed to endanger public health and welfare.

Further, the 1967 statute adopted a regional planning framework specially suited for transboundary air pollution management. Federally delineated air quality control regions were the planning foundation. The regions could be intra- or interstate as warranted by air quality management considerations. Simply and sensibly, the air quality planning infrastructure recognized that air pollution, the most highly mobile of all environmental contaminants, is not confined to political boundaries. While political boundaries were relevant to the delineations, additional factors such as meteorological and topographical considerations transcended political limitations. States were directed to adopt corresponding regional air quality standards and air quality management plans to achieve the standards.³⁰

The delineation of air quality control regions, standardsetting and associated planning processes involved a mix of federal and state responsibilities. There were four general steps in the process.

Identifying Broad Airsheds. The first step in the process called for HEW to define "atmospheric areas" in the nation based on climate, meteorology and topography, and other conditions affecting pollutant mixing and dispersion.³¹ HEW defined 8 atmospheric areas in the contiguous 48 states, and 1 each for Alaska and Hawaii.³²

Designating Air Quality Control Regions (AQCRs). HEW was then required to designate AQCRs.³³ The AQCRs were delineated considering socioeconomic factors, political boundaries, and other factors relevant to effective air quality management such as the atmospheric areas.³⁴ Thus, the atmospheric areas established broad meteorological contours or airsheds for the designation of AQCRs. The AQCRs were geopolitical boundaries, and could encompass interstate areas and large intrastate metropolitan areas. HEW initially designated 25 of the most polluted areas in the nation, including 11 interstate regions.³⁵

Establishing Regional Ambient Air Quality Standards for AQCRs. The states within each AQCR were responsible for adopting regional ambient air quality standards based on HEW's air quality criteria.³⁶ The statute provided for federal oversight of the standard-setting process. HEW reviewed the adequacy of the standards, and was authorized to promulgate standards if the states did not do so.³⁷ To facilitate the establishment of regional interstate standards, HEW was authorized to create an intergovernmental planning commission, chaired by an HEW representative and comprising representatives of the relevant state and local governments, to recommend air quality standards for a region.³⁸

State Air Quality Plans to Achieve Regional Standards. States were required to submit implementation plans to achieve the standards within a reasonable time. The statute called for HEW to issue air pollution control technique documents, which were to guide state planning efforts to attain the regional standards.³⁹ HEW reviewed the adequacy of state plans.⁴⁰ HEW was authorized to pursue judicial abatement when a state's failure to implement its plan caused violations of the regional standards. However, as [28 ELR 10160] with the abatement provisions in the 1963 statute, independent federal abatement action for failure to implement a plan was authorized only for interstate pollution. Federal action to abate intrastate air quality violations was permissible only if requested by the state.⁴¹

The 1967 statute's reliance on regional planning provided a natural opportunity to coordinate interstate planning and address interstate air pollution. Congress envisioned that the regional orientation of the 1967 Act would spur regional planning⁴² and HEW officials made federal funds available to encourage interstate air quality planning.⁴³ Nevertheless, the statute yielded little intra- or interstate air quality progress.

Concerned that the decentralized strategies under the 1967 law were ineffective, Congress made two central changes in the subsequent revisions to the law. Unlike the current national air quality standards, the air quality standards under the 1967 Act were to be designed for AQCRs and thus "tailored to the different areas of our country."⁴⁴ Further, unlike the current law, HEW lacked independent federal implementation and enforcement authority to address intrastate air quality planning deficiencies. The 1970 amendments eliminated differential ambient standards in favor of uniform national standards to protect all citizens, and bolstered federal authority to address state planning deficiencies.

Despite its failings, the regional planning process employed in the 1967 Act has some contemporary relevance. The interstate planning considered by the EPA-established Clean Air Act Advisory Subcommittee on Ozone, Particulate Matter, and Regional Haze Implementation shares features of the regional planning under the 1967 law.⁴⁵ The subcommittee has explored the creation of broad interstate planning regions, similar to the AQCRs provided for under the 1967 law, to reflect the geographic areas with emissions that contribute to transboundary ozone pollution, particulate matter pollution, and visibility impairment.⁴⁶ The subcommittee also has examined the establishment of corresponding regional air quality management organizations that would perform technical and policy analysis to guide and inform regionally coordinated state and tribal air quality management plans.⁴⁷

The current version of the Clean Air Act still provides for AQCRs, and specifically allows downwind states to guard against improper air quality redesignations.⁴⁸ However, the utilization of AQCRs diminished when the 1977 amendments to the Clean Air Act, examined below, provided for air quality designations, and corresponding planning, based on an area's air quality status relative to the NAAQS. These areas include "nonattainment" areas, which are areas that do not meet the standards.⁴⁹ These areas drive the planning process for areas out of compliance with the NAAQS and are often county-size, metropolitan areas or other smaller portions of AQCRs.⁵⁰ The larger AQCRs now serve little apparent purpose.

The Modern Clean Air Act: Federal Laissez-Faire Interstate Transport Policies and State Reliance on Downwind Dispersion

The NAAQS, added in the 1970 law, establish nationwide limits on air pollution concentrations to protect the public health and welfare of all Americans, regardless of the region in which they live. Each state was made responsible for air quality management plans to achieve the national standards. In an unprecedented shift in responsibilities, the federal government was not only authorized but directed to establish plans for states with inadequate strategies, whether inter- or intrastate air pollution was involved.⁵¹ These three features — NAAQS, state implementation plans (SIPs), and superintending federal authority — have endured for nearly 30 years and represent the core framework of the modern Clean Air Act.

Under this basic framework, each state was primarily responsible for its own air quality management plan and compliance with the NAAQS was determined by whether the standards were achieved within the confines of each state. [28 ELR 10161] Because state compliance was evaluated by whether the NAAQS were achieved within state boundaries, the structure created incentive for states to meet the standards in part by dispersing in-state pollution downwind.

Congress recognized this concern and established a constraint on downwind pollution dispersion by requiring all state plans to contain measures aimed at curbing interstate emissions. This constraint on state air quality management was established in the 1970 Act, from the very advent of the national standard-setting and state planning regime. However, the newly established EPA minimized this planning obligation in implementing the 1970 law.

In 1977, Congress sought to revise and improve the planning restrictions on downwind dispersion in several respects. Among other measures, Congress clarified and bolstered the state planning restriction on downwind pollution. The statute also established a petition process with strict deadlines to force EPA to address interstate transport complaints from downwind states. These revisions were met with equally meager EPA administration. When the Clean Air Act was overhauled in 1990, the provisions constraining state air quality plans' reliance on downwind dispersion were amended again, and augmented with mandatory interstate air quality planning initiatives such as the Northeast Ozone and Grand Canyon Visibility Transport Commission.

Congress has repeatedly refined the Clean Air Act policies addressing interstate transport to render them more effective. Since 1970, Congress has fashioned policies to correct and overcome EPA's ineffectual administrative action. An important, and perhaps ironic, question presented by the current Administration's willingness to address interstate air pollution in conjunction with the new NAAQS and proposed regional haze program, is whether Congress, when finally faced with an EPA that is prepared to act, will now lose its resolve to move forward.

We saw above that the genesis of federal involvement in air pollution regulation centered on abating interstate transport. That initial focus was lost in the critical shift to air quality planning. While Congress continued to appreciate the need for limits on interstate air pollution, EPA demurred. An important chapter in the history of the modern Clean Air Act is the failure of EPA to effectively constrain state air quality management plans that rely on downwind pollution.⁵²

The long history of laissez-faire interstate pollution policy directly bears on the new national policies in two central respects. EPA and the states face major practical and political obstacles in reforming reliance on downwind dispersion over several decades. The federal government's interstate transport policy is examined in some detail below to understand what strategies have failed in the past and to gain insight into the potential challenges to meaningfully addressing transport in conjunction with the new NAAQS and proposed regional haze program.

The Clean Air Act Amendments of 1970

Led by then-Sen. Edmund Muskie (D-Me.), the concern with the 1967 statute centered on the need for federally prescribed NAAQS to protect the public health and welfare of all citizens in the country uniformly, and the need for enhanced federal oversight when states failed to fulfill their air quality planning responsibilities.⁵³ This debate was played out on the stage of presidential politics, as a prelude to an anticipated 1972 presidential race between Senator Muskie and President Richard Nixon.

The 1970 amendments to the Clean Air Act did ultimately substantially expand federal authority.⁵⁴ The amendments also coincided with President Nixon's creation of EPA in 1970. The federal air quality functions previously vested in HEW were transferred to EPA.⁵⁵

The 1970 statute provided for the establishment of primary NAAQS to protect public health, with an adequate margin of safety, and secondary NAAQS to protect public welfare from known or anticipated adverse air pollution effects.⁵⁶ In 1971, EPA established primary and secondary NAAQS for six air pollutants — sulfur oxides (measured as [28 ELR 10162] sulfur dioxide (SO₂)), particulate matter, carbon monoxide, photochemical oxidants, hydrocarbons, and nitrogen dioxide.⁵⁷ The NAAQS were to be achieved through state designed air quality management plans — SIPs.⁵⁸ The primary NAAQS were required to be achieved as expeditiously as practicable and in no case later than three years from SIP approval. In contrast, states were given a "reasonable time" to meet the welfare-based secondary NAAQS.⁵⁹ The statute provided for federal review of state plans, and clearly directed EPA to administer federal plans on behalf of deficient states.⁶⁰

As noted, this core framework of NAAQS, principal state-based air quality planning to achieve the NAAQS, and federal implementation oversight has endured for more than a quarter century. Under this framework, compliance with the NAAQS is determined by whether they are achieved within the boundaries of each state. Unrestricted, this state-based approach would allow states to achieve the NAAQS by dispersing pollution downwind. Recognizing this, Congress simultaneously restrained state planning from relying on interstate transport.

Specifically, § 110(a)(2)(E) of the 1970 Act required SIPs to provide for intergovernmental cooperation including "measures necessary to ensure that emissions of air pollutants" from in-state sources will not "interfere with the attainment or maintenance" of the NAAQS in another state.⁶¹ With this requirement. Congress endeavored to make upwind states responsible for their exported pollution.

However, EPA's implementing regulations minimized the § 110(a)(2)(E) planning requirement. The regulations only required SIPs to include assurances that states would transmit to neighboring states information such as data on construction of new industrial plants that may significantly affect interstate air quality.⁶² The regulations therefore required information exchange rather than making upwind states responsible for actual control measures to abate interstate air pollution.

The Natural Resources Defense Council (NRDC) unsuccessfully challenged EPA's approval of SIPs for Iowa and New York on the basis that the intergovernmental cooperation provisions of the SIPs were inadequate.⁶³ The NRDC argued that binding interstate agreements were necessary, not just the information transfer contemplated by the implementing regulations. In both cases, the courts concluded that information exchange adequately implemented the statutory requirement.⁶⁴

EPA's implementation of the 1970 statute highlights key issues that continue to be relevant in addressing interstate transport. First, EPA's policies fell short at an important juncture in Clean Air Act implementation. In the first opportunity to address state air quality management responsibilities to achieve the NAAQS, EPA failed to meaningfully address state planning that relied on interstate transport. This lost opportunity was critical. EPA's role in establishing state planning requirements was the only viable vehicle for addressing states' reliance on downwind pollution dispersion to achieve the newly established NAAQS.

The reasons for EPA's policy choice are unclear. Perhaps as a new Agency EPA was reticent to interject itself into highly politicized disputes between states. Indeed, disputes over interstate air pollution have proven to be some of the most contentious under the Clean Air Act. At the same time, some of these disputes may have been avoidable had EPA meaningfully dealt with transport under the 1970 Act.

EPA may have failed to understand and anticipate the need for restrictions on interstate air pollution. In fact, the advent of state policies allowing tall stacks, and the dramatic increase in the use of tall stacks, in the wake of the 1970 amendments indicates the tendency to rely on downwind dispersion to help achieve the NAAQS. One commentator found that at least 15 states adopted SIPs allowing sources to meet the NAAQS using tall stacks in lieu of emission reductions, and that substantial increases in the use of tall stacks occurred.⁶⁵ Data compiled by the Council on Environmental Quality indicates that approximately 429 stacks exceeding 200 feet were constructed in the 10 years after the enactment of the 1970 amendments. More than 150 of the stacks exceeded 500 feet, and most of the 36 stacks exceeding 800 feet were built in the Midwest and Southeast.⁶⁶

EPA also may have been stymied by the difficulty in establishing reasonable rules of decision to govern transport disputes. The operative statutory language required SIPs to contain provisions for intergovernmental cooperation including measures necessary to ensure that air pollution [28 ELR 10163] sources in one state will not "interfere with" the attainment or maintenance of the NAAQS in another state.

There are confounding challenges in determining whether upwind sources interfere with attainment or maintenance of the NAAQS in another state. For example, how appreciable does the pollution have to be to warrant regulatory attention? Given that air is a highly mobile medium, a "one molecule" test would be impracticable. At the same time, the mobility of air pollution makes it an important national problem. Determining when pollution is sufficiently salient to warrant corrective action is difficult.

Another challenging issue is how to decide whether pollution "interferes with" the "attainment or maintenance" of the NAAQS. For example, does pollution interfere with attainment only if it is the difference between an area attaining and not attaining the NAAQS? In other words, must the pollution be the "but for" cause of a nonattainment condition? But what if the pollution occurs in significant amounts and does not contribute to a NAAQS violation? How do you assess the impact on a state that has preserved clean air resources — either for future economic growth or public health and welfare — and has its clean air resources degraded by an upwind state? Wouldn't such pollution "interfere with" maintenance of the NAAQS? Further, if clean air resources are not protected from pollution by upwind states, the resident state has little incentive to safeguard them in the first instance.

These and other related issues are explored in detail in a 1996 law review article by Professor Richard Revesz.⁶⁷ While Professor Revesz's analysis focuses on EPA's implementation of the state planning requirements for interstate transport under the Clean Air Act, as amended in 1977, these issues preliminarily emerged with the 1970 Act. Further, the "interfere with" standard has been partially carried forward from the 1970 statute to the current law.⁶⁸

Whatever the reasons, EPA's interpretation of the statutory state planning requirement as involving only information transfer was narrow and inadequate. Even if a polluting state provided information revealing a transport problem, the regulations did not require actual control measures to abate the pollution.⁶⁹

Nevertheless, EPA's implementation of the § 110(a)(2)(E) planning requirement withstood judicial scrutiny and evinces the broad discretion EPA enjoyed in interpreting the statutes it administers, even before the Supreme Court's landmark decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council.⁷⁰ While EPA could have interpreted the planning provision to require actual control measures to address transboundary pollution, both courts of appeals reviewing the NRDC's legal challenges deferred to EPA's more limited approach, reasoning that the information exchange provisions would lead to any necessary emission standards or resolution of interstate controversies.⁷¹

Thus, despite statutory authority to restrict state air quality management from relying on transboundary pollution, the newly established EPA adopted a laissez-faire policy. EPA left interstate pollution problems to the states and other affected parties. EPA's failure to constrain transport at this critical juncture broadly opened the door for states to design plans to achieve the NAAQS with little regard for transboundary impacts.

The experience under the 1970 Act presaged what occurred in the late 1970s and 1980s, in EPA's implementation of the 1977 amendments to the Clean AirAct. As examined below, Congress endeavored to invigorate EPA's policy. The renewed efforts of Congress were unsuccessful, despite the fact that EPA was presented with several concrete transport problems during this period. EPA's laissez-faire from the 1970 to 1990 amendments left downwind states with little, if any, protection from interstate air pollution and exacerbated current transport problems.

Clean Air Act Amendments of 1977

Congressional Efforts to Bolster Federal Regulation of Interstate Air Pollution. The 1977 Clean Air Act Amendments made a number of substantial changes to the Act.⁷² Congress enhanced state planning requirements, establishing a bifurcated state planning system based on an area's air quality relative to the NAAQS. Separate planning requirements were tailored for areas that did and did not meet the NAAQS. At the same time, all plans were required to contain certain basic requirements. Notably, these included bolstered restrictions on interstate transport that attempted to fix the shortcomings of the 1970 Act.

Congress also directly restricted states' reliance on dispersion techniques, disallowing emissions reduction credit for intermittent control measures that relied on meteorological conditions and tall stacks in excess of good engineering practices.⁷³ Further, the statute created a program to protect visual air quality in national parks and wilderness areas.⁷⁴ The visibility program was specifically aimed at upwind states with emissions that contribute to visibility impairment in these special natural areas.

Because compliance with the NAAQS determined the applicable planning requirements, delineation of areas that did and did not meet the NAAQS was a necessary first step in the planning process. The statute established procedures for assigning air quality designations to areas of the country.

States were required to submit a list to EPA classifying areas as having air quality better than, worse than, or unknown [28 ELR 10164] relative to the NAAQS.⁷⁵ These were respectively deemed attainment, nonattainment, and unclassifiable areas. EPA codified the list, making any necessary revisions. If air quality in a nonattainment area improved to meet the NAAQS or conversely air quality in a clean air area deteriorated in excess of the NAAQS, the categorization of an area could be revised to apply the appropriate planning requirements.

Air quality designations were made for each NAAQS, comparing the pollutant concentration in an area with the corresponding NAAQS. At the time of the 1977 amendments, there were NAAQS for the six air pollutants originally identified in 1971. Thus, any particular area could be designated attainment for one pollutant and nonattainment for another, resulting in a mix of planning requirements.

Under the bifurcated planning scheme, states with "nonattainment" areas were required to implement measures to control emissions from both existing and new sources.⁷⁶ States were directed to implement reasonably available control measures for existing stationary sources as expeditiously as practicable. Plans were to contain a new source review permit program for new and modified major stationary sources. The new source review permit program required affected sources to meet the "lowest achievable emission rate" and to "offset" residual emissions increases with compensating decreases obtained from existing sources. The requirements for new sources ensured that new emissions growth did not detract from progress toward attainment and thereby increase the emissions reduction burden on existing sources.

Overall, the state plans for nonattainment areas were to be designed to achieve the NAAQS and, in the interim, to make reasonable further incremental emissions reduction progress toward attainment of the NAAQS. The requirement for interim progress provided a periodic check to impose discipline in meeting longer term attainment goals. Measuring interim progress in emissions reductions provided an indication of air quality progress that avoided the difficulty with discerning and projecting changes in pollutant concentrations over relatively short time frames.

At the same time, Congress revised and statutorily codified EPA's prevention of significant deterioration (PSD) of air quality program for "clean air" areas — "attainment" areas that meet the NAAQS and "unclassifiable" areas for which there is insufficient information to determine their air quality status relative to the NAAQS.⁷⁷ EPA has implemented the PSD program as the analog to the new source review permit program in nonattainment areas.

The PSD program requires state plans to include a preconstruction permit program requiring best available control technology and reviewing the air quality impacts for new and modified major stationary sources.⁷⁸ The PSD program also established "increments" of allowable air quality deterioration over a baseline concentration. If the baseline pollutant concentration in a PSD area is relatively modest, an area may completely degrade air quality under its assigned increment. However, the NAAQS are a mandatory ceiling regardless of any allowable increment. The increments endeavor to balance economic growth and corresponding air quality deterioration with the preservation of good air quality in already clean areas.

Thus, Congress conscientiously designed a planning process tailored to an area's air quality problems. To regulate the amount of degradation in areas with clean air, states with areas that already met the NAAQS were required to regulate emissions growth from new and modified sources, to help ensure their continued compliance with the NAAQS. A more comprehensive strategy was necessary for states with areas that did not meet the NAAQS. These states were to reduce emissions from existing sources and, to avoid backsliding, vigorously regulate new source growth.

In addition to tailoring air quality planning requirements to dirty and clean areas, all states continued to be responsible for general planning requirements. These rudimentary planning responsibilities applied to states regardless of NAAQS compliance status. They contain the fundamentals of air quality planning and management such as the need for emission limitations to attain and maintain the NAAQS, adequate authority and resources, air quality monitoring, and, most pertinent, revised constraints on interstate air pollution.⁷⁹

The 1977 amendments included provisions to address congressional concerns with interstate transport. During the debate over the 1977 amendments, Congress deliberately considered interstate transport issues. Congress saw the need to make the transport provisions consistent with the new, bifurcated planning programs for nonattainment and PSD areas, and the addition of a new visibility protection program. Moreover, both houses of Congress expressed dissatisfaction with EPA's implementation of the 1970 law and sought to remedy its defects.

The House Committee on Interstate and Foreign Commerce enumerated its concerns with the transport provisions in the 1970 statute and EPA's rules that merely required state notification of new sources affecting interstate air quality. The rules were criticized for their failure to establish procedures for acting on the information to actually prevent pollution from new sources, and for their failure to provide for pollution abatement at existing sources. They were deemed deficient for not empowering states that suffered from interstate pollution. Congress also saw the need for a mechanism for federal resolution of disputes not settled through state consultation and cooperation in the planning process.⁸⁰

[28 ELR 10165]

The Senate Committee on the Environment andPublic Works sought to redress the interstate inequity created by inadequate regulation of transport under the 1970 law. The committee was concerned that sources located in states suffering interstate pollution had to adopt more stringent controls to compensate for the pollution transport and that the facilities subject to the disparately stringent controls suffered a competitive disadvantage. According to the committee, the new interstate pollution provisions were intended to make "a source at least as responsible for polluting another State as it would be for polluting its own State."⁸¹

The amendments that were ultimately adopted revised and sharpened the general SIP requirement for interstate transport in § 110(a)(2)(E) of the Act.⁸² The statutory changes required state plans to prohibit any stationary source within the state from emitting air pollution that would prevent attainment or maintenance of the NAAQS in any other state or interfere with measures required to be included in another state's implementation plan under the PSD or visibility protection programs.⁸³

Thus, the law established a flat prohibition, eliminating any doubt about state responsibilities to constrain transport. The scope of transport restrictions was broadened to include the new PSD and visibility programs as well as the NAAQS. However, unlike the 1970 law which very generally encompassed emissions of air pollutant sources, the new law only specifically referenced emissions from stationary sources. The operative standard under the 1970 law addressing interference with the NAAQS was transferred to PSD and visibility. Thus, the new law covered stationary source pollution that would "interfere with" measures required to prevent significant deterioration or protect visibility, and "prevent" attainment or maintenance of the NAAQS.

Importantly, the prohibition on interstate pollution was a general planning requirement that applied to all state plans, regardless of the air quality designation. Additionally, the key test under the planning restriction was the air pollution impact on the downwind jurisdiction, not the air quality in the upwind jurisdiction from which it emanated. Thus, upwind states with good and poor air quality were equally covered by the prohibition. Indeed, a state may enjoy good air quality due in significant part to the pollution conveyed downwind.

Congress also created entirely new provisions directed at interstate pollution abatement.⁸⁴ Under new § 126,⁸⁵ state plans were required to provide downwind states with information about proposed new or existing stationary sources that are subject to PSD or that may significantly contribute to air pollution in excess of the NAAQS in a downwind jurisdiction. While intending to inform downwind states about upwind sources potentially contributing to transport problems, the effectiveness of the disclosure system depended on the source state's willingness to single out local firms as potential interstate polluters.

Consistent with congressional desire for a federal mechanism to resolve interstate air pollution disputes, new § 126 also empowered downwind states to seek federal enforcement against upwind states failing to comply with the planning restrictions on interstate pollution.⁸⁶ The new law established procedures for states to petition EPA for a determination that a proposed or existing major stationary source in an upwind state violates the prohibition on interstate pollution under § 110(a)(2)(E).⁸⁷

Congress sought to make EPA accountable for a response, directing EPA to make the requested finding or deny the petition within 60 days. EPA was also directed to hold a public hearing on the petition.⁸⁸ A proposed new source determined to violate the prohibition on transport under § 110(a)(2)(E) could not commence operation. An existing source was required to cease operating within three months, or to comply with an emission limit addressing its interstate pollution and provided for under a compliance schedule of no more than three years.

New § 126 had several remarkable features. Importantly, it enabled downwind states to initiate action against interstate pollution. While § 126 required upwind states to identify sources potentially contributing to interstate pollution thereby informing potential petitions, the petitions themselves were not dependent on the cooperation of the upwind state. States suffering from interstate pollution could independently [28 ELR 10166] obtain information and petition EPA for abatement action.

Section 126 also provided a powerful federal remedial tool. It authorized direct, expeditious federal abatement of pollution. Additionally, it allowed objection to and corresponding remediation of transported pollution at any time, not just when EPA was reviewing an upwind state plan for compliance with the transport prohibition.

The petition process together with the SIP prohibition on transport provided reinforcing checks on interstate transport. The § 110 provisions restricted the source state from adopting, and prohibited EPA from approving, state plans allowing interstate air pollution. Section 126 provided a backstop in the event prohibited pollution nevertheless occurred. It created a formal process for downwind states to enforce the § 110 prohibition by bringing interstate pollution concerns to EPA's attention and thereby enabling injured states to safeguard their interests.

The 1977 revisions contained several new and enhanced provisions to regulate interstate air pollution. However, in practice, the federal policy was laissez-faire. The discussion below examines federal implementation of the revised state planning constraints on transport, the new visibility protection program, and the restrictions on dispersion techniques.

EPA's Supervision of the Requirement That State Plans Prohibit Interstate Transport and Petition Procedures to Abate Interstate Transport. EPA's administration of the planning provisions prohibiting states' reliance on interstate air pollution was ineffective, notwithstanding the carefully tailored congressional revisions addressing interstate pollution transport. Most simply stated, EPA has never granted a petition filed under § 126 of the Act nor disapproved a SIP revision because of inadequate control of interstate air pollution.⁸⁹

EPA advanced a variety of questionable policies to avoid meaningfully addressing transport disputes. For example, EPA argued that it was not required to consider the interstate impacts of precursor emissions that form pollutants covered by the NAAQS.⁹⁰ Two illustrative cases involved SIP revisions allowing combustion of relatively high sulfur fuel at stationary sources, and leading to corresponding increases in SO₂ emissions. In both cases, petitioners challenged EPA's approval of the SIP revisions by arguing that EPA had failed to consider the impacts of SO₂ transformation into sulfate particles on the particulate matter NAAQS. EPA asserted that it had no legal duty to consider the impacts on interstate particulate air quality concentrations, reasoning that it had no obligation to review the impacts of SO₂ SIP relaxations on other pollutants.⁹¹

While the reviewing courts endeavored to uphold EPA's approval of the SIP revisions without affirming EPA's argument,⁹² the cases illustrate the unrealistic positions EPA advanced to defeat interstate air pollution claims. Gaseous SO₂ can and often does transform in the atmosphere into fine particles. An increase in SO₂ emissions is scientifically relevant to ambient levels of particulates. Further, the interpretation was not legally necessary under the text of the SIP prohibition on interstate pollution transport. Section 110(a)(2)(E) required SIPs to prohibit "any" pollutants that prevent attainment or maintenance of "any" NAAQS in another state. Thus, sources of SO₂ emissions that form particulate pollution could be prohibited from preventing attainment or maintenance of the particulate NAAQS.

EPA's position was also at odds with congressional intent to evaluate interstate pollution based on its air quality impacts on the injured state, not the legal status of regulation in the source state.⁹³ Otherwise, the polluting state would have incentive to manipulate its regulatory program in order to evade the prohibition on interstate pollution. Under EPA's interpretation, the regulatory status in the host state would dictate whether the emissions were remedial rather than their actual air quality effect.

Moreover, EPA often grants SIP "credit" when measures employed to control a pollutant in order to achieve one NAAQS also benefit attainment of another NAAQS.⁹⁴ This approach is sensible. It simply recognizes that because some of the NAAQS are affected by common pollutants, measures to restrict such emissions can have NAAQS cobenefits. Conversely, EPA should similarly acknowledge when relaxing emissions standards adversely affects more than one NAAQS.

In several transboundary pollution controversies, EPA advanced positions that conspired against comprehensive [28 ELR 10167] examination of interstate air pollution. For example, EPA successfully argued that § 110(a)(2)(E) required consideration only of the instant SIP revision and source impacts created thereby, not the cumulative impacts of the emissions allowed under the entire state plan.⁹⁵ Instead, EPA indicated that § 126 provided the proper forum for examining aggregate interstate emissions.⁹⁶ Thus, EPA minimized its duty under § 110(a)(2)(E) to consider the impacts from the SIP revision under EPA review. A polluting state's impacts would not be systematically examined unless a § 126 petition was filed.

At the same time, EPA successfully argued that it could approve a pending SIP revision without having to resolve related, pending state petitions under § 126.⁹⁷ This meant that EPA could approve SIP revisions in isolation. Once approved, there was no urgency, and limited willingness, for EPA to complete review of the § 126 petition. Despite the statutory duty to grant or deny § 126 petitions within 60 days, EPA repeatedly failed to act promptly.⁹⁸ Further, despite EPA's argument that review of a SIP revision and § 126 petition involved inquiries of different scope, the approval of the SIP revision established expectations. A decision under § 126 contrary to a recently approved SIP revision would have to overcome such momentum.

When compelled by court order to actually address § 126 petitions submitted by Maine, New York, and Pennsylvania,⁹⁹ EPA balked at examining the cumulative impacts of multiple sources. The state petitioners argued that by failing to comprehensively examine the SIPs of the source states to determine whether they complied with § 110(a)(2)(E), EPA erred in denying the § 126 petitions. EPA successfully defeated petitioners' challenge in the D.C. Circuit. The court affirmed EPA's position, reasoning that the language in § 126 addressed "sources" not "SIPs" and that there was no language in § 110(a)(2) expressly directing EPA to reevaluate existing SIPs.¹⁰⁰

Even if the statute did not mandate comprehensive EPA review of the upwind SIPs, EPA is authorized to supervise such review. The statute contained a "SIP call" provision authorizing EPA to address planning inadequacies. Section 110(a)(2)(H)(ii) of the 1977 statute required SIPs to provide for revision whenever EPA determined, on the basis of available information, that a SIP is inadequate to comply with requirements of the Act.¹⁰¹ Thus, EPA was empowered to request a SIP revision if information indicated that SIP emission limits allowed interstate pollution that prevented attainment and maintenance of the NAAQS in another state, contravening the requirement in §§ 110(a)(2)(E) and 126 of the Act. The statute authorized federal enforcement of § 110(a)(2)(H)(ii) through § 110(c)(1)(C), which directed EPA to issue a federal plan for states failing to revise a SIP in response to a SIP call.¹⁰²

Under the 1977 statute, EPA employed the SIP call provision in other circumstances when information revealed a potential defect in the SIP.¹⁰³ Likewise, where § 126 petitions presented reliable evidence of pollution transport, EPA could have declared the SIP defective and called for SIP revisions in the upwind state. The offending state would have been required to review its plan and make appropriate adjustments. If necessary, federal planning would remedy a state's failure to respond.¹⁰⁴ Recognizing this authority, in 1990, Congress renumbered § 110(a)(2)(H)(ii) as new § 110(k)(5) and explicitly made this the mechanism for mitigating interstate pollution in response to measures recommended by the Northeast ozone transport commission and other interstate commissions to [28 ELR 10168] protect the NAAQS.¹⁰⁵ In sum, EPA had the power to act.¹⁰⁶ Instead, EPA took refuge in its discretion for inaction.

The interstate transport disputes under the 1977 Act also involved disagreements over air quality modeling. In several interstate transport controversies, EPA indicated that limitations on modeling tools and techniques prevented it from evaluating interstate impacts. EPA indicated that it lacked effective tools to model long-range transport of SO₂ emissions, transformation of SO₂ to fine particle sulfates, or sulfate transport.¹⁰⁷ Reviewing courts lack the institutional capacity to scrutinize technical judgments on matters such as air pollution modeling or, in these circumstances, the inability to model. Consequently, the courts deferred to EPA's findings that the technical tools were inadequate.¹⁰⁸

In other instances, there were substantial disagreements over the modeling employed and its results. Again, EPA benefited from the deference granted its technical judgments. Invariably, reviewing courts deferred to EPA's rejection of modeled SO₂ NAAQS violations and PSD impacts proffered by injured states¹⁰⁹ and, conversely, rejected challenges to the modeling results relied on by EPA.¹¹⁰

EPA's laissez-faire policies were at least in part traceable to the politicized debate over the existence, causes, and harm of acid deposition. Several of the interstate transport disputes under the 1977 provisions involved attempts by New York and other northeastern states to curb SO₂ emissions from midwestern power plants.¹¹¹ The states aimed to address acid deposition by reducing emissions of SO₂, a central precursor to acidic compounds. Since there were no specific acid deposition restrictions in the Act, the northeastern states sought to abate transport impacting the SO₂ NAAQS. However, at the time, the Reagan Administration EPA instead favored further research of acid deposition.¹¹²

Even though EPA did not address acid deposition under the 1977 Act's restrictions on interstate pollution, the restrictions may have indirectly helped engender a solution. The persistent, formal complaints of the affected northeastern states, through § 126 petitions and challenges to SIP revisions, maintained pressure for eventual resolution of the acid deposition problem. In this respect, the 1977 transport provisions may have been useful in focusing environmentally reluctant administrations on important transport problems.

EPA's reticence to resolve acid deposition transport problems does not explain its laissez-faire in other situations. Perhaps the starkest example of EPA's inaction was EPA's rejection of Jefferson County, Kentucky's § 126 petition to abate pollution from the nearby Gallagher power plant in southern Indiana.¹¹³

The dispute was a relatively straightforward, compelling case of interstate pollution. It involved two states, pollution from a large single stationary source located in Indiana on the Kentucky border, and compliance with the SO₂ NAAQS, not collateral environmental effects.¹¹⁴ Finally, [28 ELR 10169] the petitioner, Jefferson County, Kentucky, was concerned about the economic inequity borne by in-state sources due to inadequate control at Gallagher. This kind of inequity influenced congressional adoption of the transport restrictions under the 1977 Act.¹¹⁵

At the time it filed its § 126 petition, Jefferson County was designated nonattainment for the primary and secondary SO₂ NAAQS. The three major power plants in the county were subject to an SO₂ emission limitation of 1.2 pounds (lbs.) per million British thermal units (MBtu). Louisville Gas & Electric, the owner of the three facilities, invested $ 138 million in scrubbers to comply with the limits.¹¹⁶

In contrast, the Gallagher power plant in Indiana was uncontrolled. Its uncontrolled emissions were equivalent to an SO₂ emission limit of 6 lbs./MBtu. Gallagher's actual emissions were approximately 60,000 tons per year SO₂, its allowable emissions 150,000 tons per year.¹¹⁷ The SO₂ emanated from Gallagher's 550 foot stack.¹¹⁸

Even though all of Jefferson County was designated nonattainment, EPA separately modeled SO₂ concentrations in the county and Gallagher's projected contribution. EPA's modeling analyses showed that Gallagher's emissions made a 3 percent contribution to areas of Jefferson County where the SO₂ NAAQS were modeled to be violated. The 3 percent was derived from a projected 15 micrograms (ug) per cubic meter (m³) contribution to a 443 ug/m³ predicted violation of the primary 24-hour SO₂ NAAQS (365 ug/m³). Specifically, EPA divided 15 ug/m³ by 443 ug/m³ in determining that the fraction of Gallagher's contribution was 3 percent.

At the same time, EPA's model predicted that some areas of Jefferson County had air quality concentrations meeting the SO₂ NAAQS. In areas of Jefferson County where EPA's modeling predicted the NAAQS to be achieved, Gallagher's emissions were projected to contribute 34.5 percent (126 ug/m³) of the 24-hour NAAQS and 47 percent (608 ug/m³) of the 3-hour secondary SO₂ NAAQS (1300 ug/m³).¹¹⁹ Jefferson County presented conflicting modeling analysis, showing that Gallagher alone caused violations of the SO₂ NAAQS.¹²⁰

EPA denied Jefferson County's § 126 petition. In the resulting litigation, the reviewing court deferred to EPA's technical judgment and interpretations. EPA successfully argued that the high contributions to areas in attainment with the NAAQS could be disregarded because the county was designated a nonattainment area and PSD did not apply.¹²¹ EPA also successfully argued that the remaining 3 percent contribution was not remedial because the language in § 110(a)(2)(E) prohibiting emissions that "prevent attainment and maintenance" of the NAAQS in another state only protects against significant contributions to NAAQS nonattainment and 3 percent is not a significant amount. The significant contribution test governed EPA's resolution of ensuing interstate transport disputes under §§ 110(a)(2)(E) and 126.¹²²

Ironically, EPA's slavish reliance on its modeling results controlled the outcome of the Jefferson County petition. In the long-range transport disputes over acid deposition as well as prior transport disputes between neighboring states, the lack of effective modeling tools to characterize SO₂ transport and transformation precluded relief for petitioning states.¹²³

However, in Jefferson County, EPA's extraordinary confidence in the precision of its short-range SO₂ modeling precluded relief for the petitioner. While the entire county was formally designated an SO₂ nonattainment area, EPA's modeling showed that Gallagher's 60,000 tons per year of SO₂ emissions contributed heavily to SO₂ levels in the county where the NAAQS were nevertheless predicted to be attained. The contribution was substantially less in the areas where the model predicted NAAQS violations. EPA was able not only to precisely delineate the nonattainment and attainment contours of the county but to exactly determine Gallagher's impact within the contours. Serendipitously, the Gallagher emissions concentrated within the attainment and diffused within the nonattainment contours.

Conceptually, EPA's use of a significance test to evaluate Gallagher's impact on portions of Jefferson County not in attainment with the NAAQS was an attempt to arrive at a sensible position.¹²⁴ The operative language in § 110(a)(2)(E) prohibits emissions from a source that "prevent attainment or maintenance" of the NAAQS. Interpreting this language to proscribe any transboundary impact, however minuscule, would be administratively unworkable, would subject emissions from upwind states to endless challenge, and would create incentive for downwind states to blame upwind states for pollution instead of controlling in-state sources.¹²⁵

On the other extreme, construing "prevent" to prohibit only those upwind source emissions that standing alone are of sufficient magnitude to exceed the NAAQS in a downwind state would be unfair to the downwind jurisdiction. The injured jurisdiction would be required to ratchet down on in-state sources notwithstanding that a nonresident source immediately across the border made the predominant, [28 ELR 10170] but not determinative, contribution to NAAQS nonattainment conditions. The significance test was an intermediate approach, had some grounding in the statutory text¹²⁶ and is rooted in administrative law.¹²⁷

However, the significance test is highly discretionary and susceptible to arbitrary implementation. For example, 3 percent is perceived to be relatively small. But the impact of Gallagher's 15 ug/m³ SO₂ contribution can be assessed differently. For example, it represents 4 percent of the 365 ug/m³ 24-hour SO₂ NAAQS. Further, it represents a 19 percent contribution to the amount of SO₂ that must be reduced to meet the NAAQS in the area where a 443 ug/m³ violation was predicted.¹²⁸ Under the PSD program, the 24-hour SO₂ NAAQS cannot be degraded in a class II area more than 91 ug/m³ over baseline concentrations.¹²⁹ Thus, in a PSD area, Gallagher's impact would consume 16 percent of the class II increment.

EPA's complete disregard for Gallagher's considerable pollution of areas EPA projected to be in attainment with the SO₂ NAAQS is even more striking. Recall that EPA predicted that Gallagher contributed 126 ug/m³ or about 34 percent to the 24-hour NAAQS (365 ug/m³), and 608 ug/m³ or about 47 percent to the 3-hour secondary NAAQS (1300 ug/m³). EPA wholly discounted these impacts because they occurred in areas of the county where the SO₂ NAAQS were predicted to be attained.

EPA reasoned these impacts were not remedial under § 110(a)(2)(E) because the county was formally designated a nonattainment area. Consequently, no PSD requirements were in effect in the county. Section 110(a)(2)(E)(i)(II) prohibited a stationary source from emitting pollution that will interfere with measures required to be included in the state's plan under the PSD program. EPA concluded that the emissions did not interfere with PSD measures in the county because no such requirements existed.¹³⁰

The position is extraordinary. On the one hand, EPA disregarded the county's official nonattainment designation in applying the significant contribution standard. Instead, EPA relied on its modeling, considering Gallagher's contribution only where the model predicted NAAQS exceedances. Thus, the county's official nonattainment designation was irrelevant in determining whether Gallagher prevented attainment and maintenance of the NAAQS under § 110(a)(2)(E)(i)(I).

On the other hand, EPA concluded that the official nonattainment designation was not only relevant but dispositive in determining whether Gallagher's emissions interfered with PSD under § 110(a)(2)(E)(i)(II). EPA concluded that the formal nonattainment designation, which ousts application of the PSD program, altogether precluded consideration of PSD concerns, notwithstanding that EPA believed portions of the county to be in attainment.

Under EPA's reasoning, Jefferson County was being penalized because EPA and the state designated the entire county as nonattainment for SO₂.¹³¹ To benefit from the protection denied by EPA, the state could have redesignated as a PSD area that part of the county that EPA's modeling showed to be in attainment.¹³² Such air quality designation manipulations should be unnecessary for a state to realize protection against substantial interstate transport pollution. Additionally, EPA should not discourage states from taking a comprehensive view of nonattainment air quality planning. Broad nonattainment area boundaries may present a more meaningful way to manage emissions and achieve compliance with the NAAQS.

EPA's interpretation also unnecessarily diminished the scope of the law. Congress provided ample textual support for EPA to protect interstate pollution impacts on areas within designated nonattainment boundaries where the NAAQS may be met and PSD does not yet apply. Section 110(a)(2)(E) proscribes interstate emissions that prevent attainment or maintenance of the NAAQS or that interfere with required PSD measures in another state. A plausible reading of these provisions when portions of a designated nonattainment area may be in compliance with the NAAQS and PSD does not apply is to protect continued maintenance of the NAAQS. EPA declined to breathe such life into the term "maintenance" under § 110(a)(2)(E).

EPA advanced similarly strained positions in other cases. For example, the Agency asserted that interstate transport did not interfere with PSD, within the meaning of § 110(a)(2)(E) of the Act, because although PSD applied, the PSD baseline had not been triggered in the downwind state.¹³³ To grandfather background air quality conditions, the PSD program applies the "increments" to the baseline concentrations when the first complete PSD permit application is submitted.¹³⁴ EPA reasoned that the emissions from the upwind state could not interfere with the PSD measures because the increment was not yet activated. The reviewing court affirmed EPA's conclusion while attempting to avoid upholding the Agency's broad legal argument. The court was concerned that clean air resources unprotected by the absence of an operative baseline were exposed to predation by interstate air pollution.¹³⁵

[28 ELR 10171]

Indeed, EPA's failure to protect maintenance of the NAAQS or PSD increments failed to reward and protect states with relatively good air quality. For example, EPA's modeling showed that Gallagher's emissions were consuming considerable growth increment in Jefferson County. Left vulnerable to transboundary degradation by EPA, Jefferson County and similarly situated jurisdictions had every incentive to consume exposed increment with their own economic activity rather than risk air quality deterioration by out-of-state emissions.

In addition to the degradation in air quality resulting from unprotected increment, in-state sources are unfairly burdened when upwind sources consume increment without restriction. In-state sources, not the upwind sources, would have to reduce emissions to accommodate new industrial activity. This is precisely the type of inequity Congress had endeavored to remedy with the prohibition on interstate pollution.¹³⁶

Relief was elusive under EPA's administration of §§ 110(a)(2)(E) and 126. If downwind states challenged a SIP revision, then EPA would evaluate only the impact of the sources affected by the SIP revision. Further, EPA would argue that the sources had to have a significant impact on areas where nonattainment violations were predicted, to warrant remediation. A significant contribution in a portion of an area officially designated nonattainment but not predicted to exceed the NAAQS was insufficient. Coincidentally, a nonattainment designation defeated protection of any residual growth increment by precluding application of the transport restrictions to protect PSD.

Limiting review to the pending SIP revision constrained the scope of EPA's inquiry and substantially diminished the likelihood that the emissions would be significant. If injured states simultaneously filed a § 126 petition, EPA would argue that it had no duty to address the petition before acting on the challenged SIP revision. When forced to act on petitions through mandatory duty suits, EPA successfully argued that it was not obligated to review the adequacy of the entire state plan to prevent interstate pollution. In adopting the 1977 revisions, Congress had attempted to overcome the deficiencies under the 1970 law. But EPA's laissez-faire was insurmountable.¹³⁷

The federal judiciary's role in addressing transport was circumscribed by the changes to the Clean Air Act. The rise of a comprehensive federal regulatory program has diminished the availability of alternative pollution abatement action in federal court.¹³⁸ Thus, states aggrieved by interstate pollution could not seek a federal judicial remedy in the first instance based on either the federal common law of nuisance or their own state nuisance law. Instead, their only meaningful federal recourse was necessarily the congressionally prescribed administrative remedy.

The federal judiciary still reviewed agency action under the federal administrative process. Thus, states suffering from downwind pollution could rely on the federal judiciary to enforce EPA's mandatory duty to decide § 126 petitions.¹³⁹ Further, as the cases examined above show, the federal judiciary had jurisdiction to review challenges to final EPA action on § 126 petitions and SIP revisions.¹⁴⁰ However, judicial review of EPA's final decisions was more constrained than de novo judicial review. Under established principles of administrative law, the reviewing courts deferred [28 ELR 10172] to EPA's interpretation of its own statute and its judgments about technical matters such as air quality modeling.

This is not to suggest that de novo judicial review generally would be preferable to administrative resolution. There clearly are institutional limits on the capacity of courts to resolve interstate air pollution disputes, especially complex pollution problems involving multiple states, numerous sources, and long-range transport. However, as the U.S. Supreme Court's decision in Tennessee Copper Co. illustrates (see opening quotation), relatively straightforward transport cases such as Jefferson County's resemble a traditional nuisance suit and are susceptible to effective judicial resolution. Thus, the concern is that the advent of an administrative scheme together with EPA's laissez-faire policies had a doubly damaging effect. Judicial review was constrained by an administrative remedy that was unavailing.

EPA's Implementation of the Visibility Protection Program for National Parks and Wilderness Areas. At the same time EPA declined to remedyinterstate NAAQS pollution, EPA deferred regulatory action on clearing national parks and wilderness areas of regional visibility impairment. As noted, the 1977 amendments established a visibility protection program in § 169A of the Clean Air Act.¹⁴¹ Congress designed a special visibility program to protect the "intrinsic beauty and historical and archeological treasures" of certain federal lands, observing that "areas such as the Grand Canyon and Yellowstone Park are areas of breathtaking panorama; millions of tourists each year are attracted to enjoy the scenic vistas."¹⁴²

The statute authorizes protection for specific national parks and wilderness areas¹⁴³ where visibility is an important quality.¹⁴⁴ These premier lands were originally set aside for the preservation and enjoyment of current and future generations.¹⁴⁵

The visibility program is guided by a national goal that calls for preventing any future, and remedying any existing, anthropogenic visibility impairment in the protected national parks and wilderness areas.¹⁴⁶ The legal centerpiece of the program is the mandate for EPA to promulgate regulations to assure "reasonable progress" toward meeting the national visibility goal.¹⁴⁷ EPA's regulations are to establish state guidelines and planning requirements for visibility protection.¹⁴⁸

Congress expressly recognized that interstate pollution could contribute to visibility impairment in national parks and wilderness areas, and endeavored to make states responsible for such pollution. The statute directs the visibility planning requirements to apply to two categories of states: (1) states containing a protected area; and (2) states contributing to visibility impairment in a protected area outside its borders.¹⁴⁹

The operative legal standard for states exporting interstate pollution is quite broad. The statute applies to states "the emissions from which may reasonably be anticipated to cause or contribute to" transboundary visibility impairment.¹⁵⁰ Thus, the provision encompasses emissions generally, and does not make distinctions based on the types of sources (e.g., stationary, mobile, or area) creating the pollution. Further, it is plainly unnecessary for a state to be solely responsible for or the cause of the interstate visibility impairment. Rather, the statute applies if a state's emissions are reasonably expected to contribute to transboundary impairment. The state planning requirements under the visibility protection program were augmented by §§ 110(a)(2)(E)(i)(II) and 126, which also protected against interstate visibility impairment.

The statute does not differentiate categories of visibility impairment for separate treatment. Rather, the law calls for EPA's regulations to make reasonable progress in protecting against "any" visibility impairment, which is defined generally to include reduction in visual range and atmospheric discoloration.¹⁵¹ However, EPA decided to segregate the problem and attack it in stages.

In 1980, EPA issued implementing regulations that adopted a phased approach to visibility protection.¹⁵² EPA segregated visibility impairment into two general types: (1) smoke, dust, colored gas plumes, or layered haze emitted from stacks that obscure the sky or horizon and are relatable to a single source or a small group of sources; and (2) widespread, regionally homogeneous haze from a multitude of sources that impairs visibility in every direction over a large area.¹⁵³

[28 ELR 10173]

EPA's regulations addressed the first type of impairment, which generally encompasses relatively localized stationary source pollution. EPA indicated that future regulatory initiatives would address regional haze, the second type of impairment, when regional scale models were refined and scientific knowledge about the relationships between emitted air pollutants and visibility impairment improved.¹⁵⁴ Because EPA deferred action on visibility impairment from multiple emissions sources across broad interstate regions, EPA did not require visibility protection plans for states based on their contribution to interstate visibility impairment. The regulation required only the states containing protected national parks and wilderness areas to submit visibility SIPs.¹⁵⁵

EPA's existing regulations have realized only modest progress in protecting visibility.¹⁵⁶ This is partially because multiple-source regional pollution is the predominant cause of visibility impairment at national parks and wilderness areas.¹⁵⁷ The U.S. Department of the Interior has certified the existence of uniform regional haze in all of the class I areas managed by the National Park Service in the lower 48 states.¹⁵⁸

After waiting several years for EPA to fulfill its 1980 promise to combat regional haze visibility impairment, northeastern states and environmental groups endeavored unsuccessfully to engender federal action against regional haze. In one case, Vermont submitted an amendment to its state plan to protect regional haze in the Lye Brook National Wilderness Area and requested EPA to take remedial action against upwind states.¹⁵⁹ In the federal rulemaking action on the Vermont plan revision, EPA declined to approve the plan elements addressing regional haze from interstate pollution,¹⁶⁰ reasoning that they could not be federally approved until EPA issued regional haze regulations.¹⁶¹

The state of Vermont and environmental organizations requested judicial review of EPA's decision.¹⁶² The Second Circuit upheld EPA's position, while also admonishing EPA for failing to address regional haze more than 10 years after enactment of the visibility protection program.¹⁶³

EPA likewise denied Maine's § 126 petition to abate SO₂ emissions from seven midwestern states allegedly interfering with visibility at Acadia National Park.¹⁶⁴ EPA explained that the pollution was not remedial because the federal visibility program did not address regional haze.¹⁶⁵

In a direct attempt to compel EPA action, seven northeastern states and several environmental groups initiated a citizen suit in district court under § 304¹⁶⁶ of the Clean Air Act.¹⁶⁷ The plaintiffs alleged EPA had a long-overdue mandatory duty to issue regional haze regulations and sought a court order to enforce the obligation.¹⁶⁸ The First Circuit affirmed the district court decision dismissing the action for lack of subject matter jurisdiction.

The appellate court concluded that EPA's mandatory statutory duty to issue visibility regulations was fulfilled by its final 1980 rules and a final, judicially reviewable, agency decision deferring action to address regional haze visibility impairment. The court held that EPA's decision to defer action on regional haze at the time EPA issued its 1980 rules constituted final action judicially reviewable under § 307(b) of the Act.¹⁶⁹ Section 307(b) in turn vests exclusive jurisdiction for review of final agency actions in the court of appeals and, further, requires a petition for review to be filed within 60 days of the agency action. Thus, EPA's deferral was not thereafter judicially reviewable in district court through a citizen suit to enforce regulatory action.¹⁷⁰

In short, efforts to protect scenic vistas in national parks and wilderness areas from interstate air pollution met the same fate as the efforts to mitigate transboundary impacts on the attainment and maintenance of the NAAQS. Concerned about inadequate technical tools and lacking presidential [28 ELR 10174] political support, EPA declined to address regional visibility impairment and stymied initiatives to the contrary.

EPA's Implementation of Restrictions on Pollution Dispersion Techniques. The 1977 amendments also aimed to curtail reliance on dispersion techniques. Dispersion techniques "seek to reduce concentrations of pollutants not by reducing the amounts of pollutants emitted into the air, but rather by relying on the dispersion of pollutants throughout the atmosphere."¹⁷¹ Simply put, pollution is dispersed instead of controlled.

The two principal types of dispersion techniques are intermittent controls and tall stacks. Intermittent controls entail increasing or reducing emissions based on predicted meteorological conditions in lieu of employing continuous emission reduction measures. Tall stacks at large stationary sources directly discharge pollution at elevated levels in the atmosphere, enabling prevailing winds to carry small, buoyant particles to distant downwind areas. Thus, through these two methods pollution is dispersed in time and space.

The purpose of dispersion techniques is to dilute concentrations in the immediate vicinity of the source to comply with the NAAQS without having to actually reduce the amount of pollution. The consequence is that the gases and fine particles dispersed are merely transported downwind, often hundreds of kilometers. Thus, dispersion techniques exacerbate interstate pollution transport because unlike continuous emission controls they do not reduce overall pollutant loadings to the atmosphere.

Dispersion techniques first became prevalent under the 1970 Act. As noted, the NAAQS were first established by the 1970 Act. State compliance with the NAAQS was determined by the pollutant concentrationwithin the confines of each state. As previously examined, interstate transport was effectively unconstrained under EPA's laissez-faire policies. In the absence of meaningful restrictions on transport, states had incentive to permit sources to convey pollution downwind, thereby externalizing the pollution and promoting in-state compliance with the NAAQS.¹⁷² Indeed, as recounted above, the use of tall stacks and state policies permitting them burgeoned after the 1970 amendments.

In several instances, environmentalists challenged the use of tall stacks under the 1970 statute. In the leading case, environmentalists litigated EPA's approval of a Georgia SIP relying on tall stacks to meet the particulate matter and SO₂ NAAQS. The Fifth Circuit held that SIPs may rely on dispersion techniques only if it is shown that continuous emission limitations to achieve the NAAQS are unavailable or infeasible.¹⁷³ The court based its holding on § 110(a)(2)(B) of the 1970 Act which required SIPs to contain "emission limitations … and such other measures as may be necessary to insure attainment and maintenance" of the NAAQS, reasoning that measures other than continuous emission limitations could be used only when necessary.¹⁷⁴ Other courts reached similar results.¹⁷⁵

The 1977 amendments attempted to address the controversy over dispersion techniques. Congress expressly prohibited SIP credit both for intermittent control techniques varying with atmospheric conditions and stack heights in excess of good engineering practices (i.e., practices necessary to avoid excess pollution in the immediate vicinity of the source as a result of downwash, eddies, and wakes).¹⁷⁶ Thus, for example, a tall stack exceeding the height representing good engineering practice (GEP) could not realize credit toward meeting the NAAQS from the excess stack differential.

The statutory provision did not disallow stacks exceeding GEP but by discrediting the resulting emissions reductions was designed to curb the incentive to use them. However, the GEP calculus for determining emission reduction credit underestimates the effect in distant downwind jurisdictions. Pollution emanating from a stack exceeding GEP will have a greater actual impact on a downwind jurisdiction than calculated under the GEP formula. Thus, tall stacks are still attractive to an upwind jurisdiction because application of the GEP formula allows discounted transboundary pollution.¹⁷⁷

An expected benefit of the statutory limitation on dispersion techniques was to reduce overall pollutant loadings and long-range pollutant transport.¹⁷⁸ Congress was particularly concerned with SO₂ and NO_x pollution, transformation, and transport.¹⁷⁹ These gaseous emissions can transform in the atmosphere to sulfate and nitrate particles. The fine particles in turn can remain suspended for long periods of time and travel long distances. They adversely affect human health, impair visibility, and are deposited as acidic constituents, contributing to acid rain.

EPA was authorized to promulgate regulations implementing the new statutory restrictions on dispersion techniques. [28 ELR 10175] This presented an opportunity for EPA to make national progress in reducing pollutant loadings and transport. Further, EPA was empowered to act by establishing national regulations for stationary sources. This relieved EPA from assigning responsibility for pollution transport in the politically charged conflicts involving opposing states under §§ 110(a)(2)(E) and 126 of the 1977 Act.

Nevertheless, EPA's implementing regulations were fraught with controversy. The development of the regulations was guided by two Administrations. EPA issued an initial proposal during the Carter Administration.¹⁸⁰ Under a court-ordered deadline, the Reagan Administration issued a second proposal and final rules.¹⁸¹ The Reagan Administration relaxed the Carter Administration's proposed restrictions on stack height credit and associated pollution transport, with an estimated differential of more than 700,000 tons SO₂.¹⁸²

The D.C. Circuit remanded several permissive aspects of EPA's final rules.¹⁸³ In 1985, EPA issued revised rules in response to the court's remand,¹⁸⁴ which in turn were the subject of legal challenge.¹⁸⁵ Reflecting increasing concern that SO₂ emissions from midwestern power plants were contributing to acid deposition in New England, northeastern states joined environmentalists in challenging EPA's rules as too lenient and midwestern states joined electric utilities in challenging the rules as too stringent.¹⁸⁶ The court remanded various exclusions from the statutory prohibition on credit for dispersion that were not adequately addressed in light of the court's prior remand,¹⁸⁷ while remarking about the protracted and unresolved controversy.¹⁸⁸

Thus, a familiar saga emerges. When EPA failed to constrain downwind dispersion techniques adequately under the 1970 Act, Congress bolstered the statute in the 1977 amendments. In this case, Congress added seemingly unavoidable restrictions on the credit for dispersion techniques in state plans. But EPA, under the Reagan Administration, sought to reduce the force of the statute, issuing scaled-back, loophole-laden rules.

An important story of the modern Clean Air Act from 1970 to 1990 is neglect of interstate air pollution. While the very genesis of federal air pollution regulation in 1963 concentrated on interstate air pollution abatement, federal remediation of interstate air pollution was persistently disregarded by EPA under the modern law.

EPA had myriad opportunities to create effective, equitable constraints on interstate air pollution. EPA was presented with transboundary air pollution that aggravated unhealthy conditions in dirty areas, confiscated valuable growth increment in clean areas, deposited acidic compounds in sensitive ecosystems, and polluted the scenic vistas in national parks and wilderness areas. To the detriment of the people, natural resources, and industry suffering from downwind air pollution, EPA demurred. Nevertheless, Congress replied.

The 1990 Amendments: Market-Based Acid Deposition Program and Interstate Transport Commissions

The 1990 revisions dramatically expanded the Clean Air Act.¹⁸⁹ Several of the new programs were enacted to address interstate air pollution transport directly, reducing the risk [28 ELR 10176] of further administrative inaction. The law specifically targeted three multistate transport problems: acid deposition, eastern ozone pollution, and western regional haze. All three programs have influenced in some respect President Clinton's implementation strategy for the new fine particle and ozone NAAQS, and EPA's pending regional haze initiative. Congress also revised the limitations on interstate transport under §§ 110 and 126.

Acid Deposition

The acid deposition program took aim at SO₂ and NO_x pollution, the principal precursors to acid rain, and electric utilities, the principal source of these pollutants.¹⁹⁰ The program is designed to reduce annual emissions of SO₂ by 10 million tons and annual emissions of NO_x by 2 million tons, the phased rollbacks in both pollutants measured from 1980 emission levels.¹⁹¹

The program employed a heralded and often-reviewed emissions allowance and trading strategy to achieve the 10 million ton reduction in SO₂.¹⁹² This efficient market-based strategy substantially reduced potential compliance costs, engendered bipartisan support, and broke the political logjam on acid rain.

Under the market-based program, the amount of emission "allowances" necessary to realize the net SO₂ reductions is initially allocated to affected utilities. The allocation is generally based on a specific emission rate and the covered unit's past fossil fuel consumption level. Affected utilities have flexibility to bring emissions in line with allowances either by reducing emissions or purchasing additional allowances. This flexibility yields overall compliance savings by enabling utilities facing costly emission reductions to purchase allowances from other utilities that can reduce emissions more economically and thereby create excess allowances for trading.

The program is geared to reduce overall atmospheric loadings of SO₂.¹⁹³ Emissions allowances will eventually be allocated to utilities across the continental United States,¹⁹⁴ and generally may be traded indiscriminately.¹⁹⁵ Thus, a premise of the acid deposition control program is that nationwide emission reductions or increases are interchangeable so long as overall atmospheric loadings are reduced. When fully implemented, nationwide emissions of SO₂ generally will be capped at 8.9 million tons annually.¹⁹⁶

Interstate Commissions for Ozone Transport and Regional Haze

Two additional interstate air pollution problems engendered special congressional attention in the 1990 amendments — the seemingly intractable northeastern ozone pollution problem and EPA's prolonged delay in issuing regional haze regulations examined above. The amendments called for the establishment of interstate transport regions and corresponding interstate commissions to address ozone transport in the Northeast, and regional visibility impairment of the Grand Canyon National Park.¹⁹⁷

The Northeast ozone and Grand Canyon commissions share key features. Both embody a regional approach to air quality management. Both also put states at the forefront of the process for determining regional strategies, by empowering the affected states to recommend federal solutions to the multistate transport problems.¹⁹⁸

[28 ELR 10177]

Reflecting congressional doubt about EPA's unassisted ability to solve transport problems, Congress employed a new model of federalism. The interstate commissions relied on the affected states to help fashion federal policies aimed at interstate air pollution. Congress envisioned that bringing states together to examine regional air pollution problems would help make states "good neighbors" and more equitably allocate the burden of transboundary pollution.¹⁹⁹ The interstate transport commissions promoted state-participation in regional air quality planning and gave states a stake in a federal solution.

However, at the time of the 1990 amendments, Congress was armed with more knowledge about northeastern ozone problems and pressed harder to create a solution. The 1990 amendments therefore were more ambitious in tackling northeastern ozone pollution. The revisions specifically delineated the states in the transport region, which spanned from northern Virginia to Maine.²⁰⁰ Further, responding to the entreaties of the northeastern states suffering from downwind ozone pollution and declining to risk further EPA inaction, Congress legislated several minimum control measures for adoption in the states throughout the region.²⁰¹ The measures applied regionwide, reflecting the assumption that all emissions in the transport region in some manner contribute to the regional ozone problem.²⁰² Like the unprecedented strategy to combat acid rain, Congress for the first time directly designed controls for regional ozone pollution.²⁰³

The Northeast ozone and Grand Canyon visibility commissions also have different standards governing EPA's review of recommendations for additional regional control measures. The northeastern states suffering transboundary ozone pollution distrusted EPA in light of its poor record on transport issues, and sought to curtail EPA's discretion to reject the interstate commission's recommendations.²⁰⁴ Conversely, others were concerned that federal review was important to limit the ability of one group of states to impose controls in other states.²⁰⁵ The compromise was to grant EPA authority to approve or disapprove recommended measures while also creating a "heavy burden" for EPA to reject them.²⁰⁶ At the same time, Congress established procedural [28 ELR 10178] checks on the commission's action, directing that the commission's recommendations to EPA be subject to public notice and comment, and supported by a majority of states.²⁰⁷

The Northeast ozone commission ultimately made a single dramatic recommendation to EPA.²⁰⁸ To address the contribution of mobile sources to regional ozone pollution, the commission examined enhanced motor vehicle emission standards. After extensive discussions and public debate, on February 1, 1994, the majority of the commission recommended 9 to 4 that EPA require all states in the region to adopt a low emission vehicle (LEV) program meeting California's emission standards for all passenger cars and light-duty trucks in model year 1999 and later.²⁰⁹ On January 24, 1995, EPA approved the recommendation, requiring all states in the region to amend their air quality plans appropriately.²¹⁰ In a setback to achieving regional ozone reduction, EPA's approval of the regionwide LEV program was overturned in the D.C. Circuit.²¹¹

EPA has nevertheless established an alternative voluntary LEV program that would apply not only in the states within the Northeast ozone commission but nationwide (outside of California).²¹² If successful, the program would provide for implementation of the national LEV standards in the Northeast ozone commission states beginning with model year 1999 and elsewhere nationally beginning with model year 2001, and would substantially reduce current motor vehicle emissions of ozone precursors.²¹³

In contrast, Congress did not legislate the regional boundaries of the Grand Canyon visibility commission or prescribe state implementation of specific measures. Rather, EPA was generally directed to "establish a visibility transport commission for the region affecting the visibility of the Grand Canyon National Park" and given discretion to delineate the transport region.²¹⁴ EPA established the Grand Canyon commission in 1991, and expanded its focus to include the additional national parks and wilderness areas within the "Golden Circle" of parks and wildernesses on the Colorado Plateau.²¹⁵ The transport region encompassed a substantial part of the western United States, and the commission included representatives of eight western states, four Native American tribes, federal and tribal land management agencies, and EPA. Only the states and tribes were voting members.²¹⁶

While Congress did not prescribe control measures for the visibility transport region, it placed EPA on an inexorable path to issuing regional haze regulations. Congress made the commission responsible for recommending control strategies to EPA including regulations to address regional haze.²¹⁷ The commission reported its recommendations to EPA on June 10, 1996.²¹⁸ Congress in turn charged EPA with taking the recommendations into account in adopting regulations to protect visibility.²¹⁹ Further, Congress prescribed an enforceable 18-month deadline for EPA's regulatory action in response to the Grand Canyon commission's recommendations.

At the same time that Congress added the commission process, Congress amended the citizen suit provision of the [28 ELR 10179] Act to authorize lawsuits compelling agency action that has been unreasonably delayed.²²⁰ This closed the loophole created by the First Circuit's decision in the Maine case, in which EPA eluded judicial review of its failure to issue the regional haze regulations deferred in the 1980 visibility rulemaking.²²¹ The statutory deadline for responding to the Grand Canyon commission's recommendations in addition to the revisions to the citizen suit provisions signaled the end of congressional tolerance for EPA's protracted delay in adopting a regional haze program. Congress built in reinforcing procedures to get EPA back on track in addressing regional haze.

EPA issued a proposed regional haze program on July 31, 1997.²²² The proposal addressed regional haze visibility impairment not only in the "Golden Circle" but in all of the 156 protected national parks and wilderness areas nationwide. EPA's national program was adopted in response to the commission's recommendations and EPA's decision, in adopting the fine particle NAAQS, that the most effective way to address the welfare effects of fine particles on visibility is to establish secondary fine particle standards equal to the primary and to augment visibility protection under the secondary standards with a regional haze program.²²³

Frustrated with years of EPA inaction, Congress created interstate transport commissions, which reflected a new decisionmaking model to address persistent interstate air pollution problems. These interstate commissions brought states together in a cooperative venture to debate regional measures. States were encouraged to adopt a broader, regional planning outlook. By giving interstate commissions direct input into federal strategies, states were placed in the position of shaping the federal decisionmaking process. The political momentum behind the resulting state recommendations combined with strict statutory deadlines for EPA's response made continuing federal inaction unlikely.

Adjustments to State Planning Constraints on Interstate Pollution

The 1990 amendments also revised §§ 110 and 126 in the continuing cycle to shore up the state planning constraints on transboundary pollution in light of EPA's implementation shortfalls. The general state planning restriction on interstate air pollution in § 110(a)(2)(E) was repositioned as § 110(a)(2)(D).²²⁴ Substantively, the operative standards for analyzing compliance were modified in a number of significant respects.

The 1977 law barred transport that would "prevent attainment or maintenance" of the NAAQS. This prohibition was replaced by two distinct tests for attainment and maintenance. The 1990 revisions prohibited transport that would "contribute significantly to nonattainment" of the NAAQS. The adoption of the significant contribution test codified EPA's interpretation of the 1977 law, initially advanced in resolving the Jefferson County dispute and affirmed by the Sixth Circuit.²²⁵

Additionally, the 1990 revisions prohibited transport that would "interfere with maintenance" of the NAAQS, abandoning the "prevent maintenance" test. This was a return to the standard employed under the 1970 law and mirrored the extant test for evaluating the impact of transport on PSD or visibility protection measures. This change opened the door for EPA to protect downwind states more liberally against transboundary pollution impacting NAAQS maintenance.²²⁶ For interstate pollution to "prevent" maintenance implies that the interstate pollution must cause NAAQS maintenance to be compromised. In contrast, transboundary pollution merely contributing to a maintenance problem could be deemed to "interfere with" maintenance.

Further, the prohibition on interstate transport in new § 110(a)(2)(D) was expanded to encompass air pollution from "any source or other type of emissions activity" in an upwind state rather than "any stationary source." This change has several important consequences. It makes upwind states responsible for all sources of interstate pollution including mobile and area sources,²²⁷ not only pollution discharged from stationary sources.²²⁸ By expanding the transport prohibition to any type of emissions activity in a state, it also invites EPA to examine multiple interstate pollution sources.²²⁹ Further, transboundary emissions are more likely to be significant, and therefore prohibited, if emissions are more comprehensively examined, not segregated into an analysis of single stationary source impacts. This revision paved the way to revamp EPA's parochial analysis of transboundary pollution under the 1977 law.

[28 ELR 10180]

The scope of prohibited pollution under the § 126 petition process was also expanded from "any major source" to encompass a "group of stationary sources." Similar to the expansion of § 110, this change makes plain that EPA is to consider the cumulative impacts from multiple stationary sources in evaluating a § 126 petition.²³⁰

The 1990 revisions to §§ 110 and 126 climinated important legal obstacles to relief for downwind states. Congress expanded the prohibition on pollution originating from an upwind state by lowering the thresholds for triggering a violation and by casting a much wider net on the types of transboundary emissions covered. Taken together, these changes should provide enhanced protection for downwind states.

The July 16, 1997, Presidential Directive: Charting a New Course of Action for EPA

In the 1990 amendments, Congress designed a new blue-print for addressing interstate ozone pollution, regional haze, and the transboundary pollutant loadings that cause acid deposition. All of the problems were complex and seemingly intractable. President Clinton's implementation strategy for the new ozone and fine particle NAAQS builds on several defining features of these initiatives.

The Northeast ozone and Grand Canyon visibility commissions shed light on the broad multistate dimension of ozone and fine particulate transport problems, and the corresponding need for regional pollution control strategies. The President's July 16, 1997, Memorandum recognizes that ozone and fine particle "pollution travels hundreds of miles and crosses many State lines."²³¹ To attack the multistate transboundary pollution, regional planning is a cornerstone of the implementation strategy to achieve the ozone and fine particle standards.²³²

Additionally, the President's implementation strategy relies on the SO[1] emissions cap-and-trade system under the acid deposition program as a prototype for the regional strategies to achieve the ozone and particulate standards.²³³ Indeed, EPA has begun developing a model cap-and-trade program for states subject to its recent proposal for eastern NO_x reductions.²³⁴

After years of administrative neglect and congressional rejoinders, the President's implementation strategy sets a new course aimed at interstate air pollution. The strategy recognizes the importance of addressing transport and lays out a framework for multistate regional planning. The question is whether the course of action charted in the President's implementation strategy is ultimately history-reversing or history-repeating. The next Article will look more closely at the new administrative strategy, and, more fundamentally, will explore the analytical bases for federal involvement in addressing interstate air pollution transport.

1. 206 U.S. 230, 237 (1907) (granting Georgia's request for an injunction against copper works in Tennessee discharging large quantities of sulfur dioxide into Georgia).

2. EPA replaced the one-hour primary and secondary ozone standards with a new, more stringent eight-hour standard at a level of 0.08 parts per million. The enhanced ozone standard is intended to provide improved protection against ozone health effects such as impaired lung function in children active outdoors, respiratory symptoms in sensitive individuals, and long-term lung damage related to respiratory diseases. See 62 Fed. Reg. 38856 (July 18, 1997).

The fine particle standards are intended to provide increased protection against health effects such as premature mortality, increased hospital admissions, and emergency room visits for the elderly and individuals with cardiopulmonary disease; respiratory disease in children and individuals with cardiopulmonary disease such as asthma; decreased lung function particularly in children and individuals with asthma; and alterations in lung tissue and structure and in respiratory tract defense mechanisms. See 62 Fed. Reg. 38652 (July 18, 1997).

Congress first established a visibility protection program for mandatory class I federal areas (specified national parks and wilderness areas) in the 1977 amendments to the Clean Air Act, adding current § 169A to the Act. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685, 742-45. The average visual range in most of the western United States is about 100-150 kilometers (km) (approximately 60-100 miles), about one-half to two-thirds of the visual range that could be perceived in the absence of air pollution. The average visual range in the eastern United States is less than 30 km (approximately 20 miles), about one-fifth of the visual range that could be perceived absent air pollution. 1 COMMITTEE ON HAZE IN NAT'L PARKS & WILDERNESS AREAS, NATIONAL RESEARCH COUNCIL, PROTECTING VISIBILITY IN NATIONAL PARKS AND WILDERNESS AREAS 1 (National Academy Press 1993). Visibility impairment is caused by small particles that scatter and absorb sunlight, diminishing or altogether eliminating the color, clarity, and perception of a scenic vista. See U.S. EPA, PROTECTING VISIBILITY: AN EPA REPORT TO CONGRESS 3 (EPA-450/5-79-008 Oct. 1979). Regional haze is the predominant form of visibility impairment and adversely affects all of the class I areas managed by the National Park Service in the lower 48 states. 52 Fed. Reg. 45132, 45133-34 (Nov. 24, 1987). EPA deferred adoption of regional haze regulations 17 years ago due to technical obstacles. 45 Fed. Reg. 80084, 80086 (Dec. 2, 1980). EPA's proposed regional haze program would perceptibly improve visibility on the most impaired days and prevent degradation of the "cleanest" or least impaired days in 156 of the nation's premier national parks and wilderness areas. 62 Fed. Reg. 41138 (July 31, 1997).

3. The fine particles include sulfates, nitrates, organics, and transition metals (alone or in combination with gases), 62 Fed. Reg. at 38667. These fine particles remain airborne and can be transported hundreds of kilometers: "Following their emissions, gases and fine aerosols rise due to buoyancy effects, are advected downwind by the prevailing mean flow field, and are dispersed horizontally and vertically by ambient turbulence, wind-shear effects, and cloud processes." 1 U.S. EPA, AIR QUALITY CRITERIA FOR PARTICULATE MATTER 3-97 (EPA/600/P-95/001aF Apr. 1996). Numerous field studies document regional fine particulate transport with maximum ranges from about 300 km to well over 1,000 km. Id. at 3-102.

4. See 62 Fed. Reg. at 38652, 38679.

5. Implementation of Revised Air Quality Standards for Ozone and Particulate Matter, Presidential Memorandum of July 16, 1997, for the Administrator of the Environmental Protection Agency, 62 Fed. Reg. 38421 (July 18, 1997).

6. See 62 Fed. Reg. 60318 (Nov. 7, 1997).

7. For additional analyses of the Clean Air Act interstate transport provisions and historical implementation, see Geoffrey L. Wilcox, New England and the Challenge of Interstate Ozone Pollution Under the Clean Air Act of 1990, 24 B.C. ENVTL. AFF. L. REV. 1, 13-14 (1996). For a general review of the statutory history of the Clean Air Act, see Ronald H. Rosenberg, Cooperative Failure: An Analysis of Intergovernmental Relationships and the Problem of Air Quality Non-Attainment, 1990 ANN. SURV. AM. L. 13; WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW 208-14 (1977). For a historical review of the Clean Air Act and environmental law generally with a focus on federalism issues, see, respectively, John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. 1183 (1995), and Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141 (1995).

8. Pub. L. No. 84-159, 69 Stat. 322 (1955).

9. Id. § 2(b)(1), 69 Stat. at 322.

10. See generally Clean Air Act, Pub. L. No. 88-206, § 5, 77 Stat. 392, 396-99 (1963). See Hon. Edmund S. Muskie, Role of the Federal Government in Air Pollution Control, 10 ARIZ. L. REV. 17, 18 (1968) ("The philosophy of the Clean Air Act of 1963 was to encourage state, regional and local programs to control and abate air pollution, while spelling out the authority of the national government to step into interstate situations with effective enforcement authority."). At the time of the article's publication, Edmund Muskie was a U.S. Senator from Maine and Chairman of the Senate Committee on Public Works' Subcommittee on Air and Water Pollution. For an examination of the air pollution abatement provisions, see generally Sidney Edelman, Air Pollution Abatement Procedures Under the Clean Air Act, 10 ARIZ. L. REV. 30 (1968); Air Pollution in the Marietta-Parkersburg Area — A Case History, 32 OHIO ST. L.J. 58 (1971).

11. § 5(c)(1)(C), (f)(1), 77 Stat. at 396, 397-98; see also Edelman, supra note 10, at 32, 34.

12. § 5(c)(1)(A), (c)(1)(C), 77 Stat. at 396. The conference procedures were relatively informal and the conference was essentially "a meeting of all the governmental agencies involved." See Edelman, supra note 10, at 32.

13. § 5(d), 77 Stat. at 397.

14. § 5(e), 77 Stat. at 397.

15. § 5(f), 77 Stat. at 397-98.

16. See Edelman, supra note 10, at 35.

17. See Bishop Processing Co. v. Gardner, 275 F. Supp. 780 (D. Md. 1967); United States v. Bishop Processing Co., 287 F. Supp. 624 (D. Md. 1968), aff'd, 423 F.2d 469 (4th Cir.), cert. denied, 398 U.S. 904 (1970).

18. See Edelman, supra note 10, at 34-35.

19. See generally Air Pollution in the Marietta-Parkersburg Area — A Case History, supra note 10; see also 1 SENATE COMM. ON PUBLIC WORKS, 93D CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1970, at 114-15 (Comm. Print 1974) [hereinafter 1970 LEGISLATIVE HISTORY] (statement of Rep. Hechler) ("In our State we have had long and frustrating experiences in attempting to curb air pollution. In my congressional district in the mid-Ohio Valley, we started 5 years ago to set the official machinery in motion to control air pollution in the Vienna. W. Va., area.").

20. 2 1970 LEGISLATIVE HISTORY, supra note 19, at 1346-47.

21. Clean Air Act, Pub. L. No. 88-206, § 5(a), 77 Stat. 392, 396 (1963).

22. Edelman, supra note 10, at 34 ("One of the important values of the conference procedures is that a comprehensive presentation of the problem, supported by technical data, is made available to the concerned agencies and the public, usually for the first time.").

23. Motor Vehicle Pollution Control Act, Pub. L. No. 89-272, 79 Stat. 992 (1965). A special congressional subcommittee on air and water pollution held hearings throughout the country after the 1963 Clean Air Act to determine whether additional legislation was needed. The 1965 amendments were an outgrowthof the subcommittee's recommendations. S. REP. No. 89-192, at 3 (1965); see also 111 CONG. REC. 10782 (1965) (statement of Sen. Muskie).

The 1965 amendments also expanded the pollution abatement procedures in two respects. The law provided for abatement of international air pollution so long as the adversely affected foreign country had reciprocal abatement procedures. § 102(a), 79 Stat. at 995. HEW was also given independent authority to convene an abatement conference for substantially significant air pollution not having interstate consequences but was not conferred with independent enforcement authority. HEW's recommended abatement solution could only be advisory. § 103, 79 Stat. at 996.

24. S. REP. No. 89-192. at 5-6.

25. Id. at 5 ("it would be more desirable to have national standards and requirements rather than for each State to have a variation in standards and requirements which could result in chaos insofar as manufacturers, dealers, and users are concerned"); see also 111 CONG. REC. 25062 (1965) (statement of Rep. Howard).

26. 111 CONG. REC. 25062 (1965) (statement of Rep. Gibbons) ("Cars take us everywhere today. They criss-cross State lines in hours or even minutes. Here in the vast complex centered about the Nation's Capital, with the help of our wonderful Federal Interstate System, an individual can cross into three different jurisdictions, Virginia, the District of Columbia, and Maryland in mere seconds."); see also H. REP. No. 89-899, at 15 (1965) (House Committee on Interstate and Foreign Commerce) (statement of HEW) ("the great mobility of motor vehicles and of their users would seriously lessen the ability of States and localities to protect themselves from pollution caused by vehicles coming from unregulated places.").

27. See 42 U.S.C. §§ 7511b(e), 7521-7590, ELR STAT. CAA §§ 183(e), 202-250.

28. For an examination of preemption issues, see Susan Bartlett Foote, Beyond the Politics of Federalism: An Alternative Model, 1 YALE J. ON REG. 217 (1984).

29. Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485 (1967).

30. For a critique of the regional planning approach established under the 1967 Act, see Arnold W. Reitze, The Role of the "Region" in Air Pollution Control, 20 CASE W. RES. L. REV. 809 (1969).

31. § 107(a)(1), 81 Stat. at 490.

32. Dr. John T. Middleton, Summary of the Air Quality Act of 1967, 10 ARIZ. L. REV. 25 (1968). At the time of the article's publication, Dr. Middleton was the Director of the National Center for Air Pollution Control of the U.S. Public Health Service, HEW. See also RODGERS, supra note 7, at 211.

33. § 107(a)(2), 81 Stat. at 490-91.

34. Id.; see also Middleton, supra note 32, at 25 ("These regions will be designated on the basis of factors which suggest that a group of communities should be treated as a unit for the purpose of setting and implementing air quality standards. Factors to be considered in making these determinations include meteorological, topographical, social, and political considerations, and the nature and location of air pollution sources.").

35. 42 C.F.R. pt. 81 (1970). The 11 interstate AQCRs were as follows: the National Capital Interstate AQCR (including all of the District of Columbia and portions of Maryland and Virginia); the New Jersey-New York-Connecticut AQCR (including portions of each state); the Metropolitan Chicago Interstate AQCR (including portions of Illinois and Indiana); the Metropolitan Philadelphia Interstate AQCR (including portions of Pennsylvania, New Jersey, and Delaware); the Metropolitan St. Louis Interstate AQCR (including portions of Missouri and Illinois); the Metropolitan Cincinnati Interstate AQCR (including portions of Ohio, Kentucky, and Indiana); the Metropolitan Kansas City Interstate AQCR (including portions of Missouri and Kansas); the Hartford-New Haven-Springfield Interstate AQCR (including portions of Connecticut and Massachusetts); the Metropolitan Providence Interstate AQCR (including all of Rhode Island and portions of Massachusetts); the Steubenville-Weirton-Wheeling Interstate AQCR (including portions of Ohio and West Virginia); and the Louisville Interstate AQCR (including portions of Kentucky and Indiana).

36. The 1963 statute authorized the Secretary of HEW to publish criteria for air pollutants present in harmful amounts indicating the health and welfare effects from varying quantities of the pollutants. The criteria were based on the most recent scientific knowledge. Clean Air Act, Pub. L. No. 88-206, § 3(c)(2), 77 Stat. 392, 395 (1963). These are the antecedents to the air quality criteria relied on in the current law as the underlying scientific basis for the NAAQS — the aptly named "criteria" pollutants. 42 U.S.C. §§ 7408, 7409, ELR STAT. CAA §§ 108. 109.

37. § 108(c)(1), (c)(2), 81 Stat. at 492.

38. § 106(b), 81 Stat. at 490; see 113 CONG. REC. S9860 (daily ed. July 18, 1967) (statement of Sen. Cooper) ("The Committee bill also provides for the establishment of regional planning commissions to recommend standards of air quality to the States and the Secretary.").

39. The statute directly keyed states' adoption of standards and air quality management plans to HEW's issuance of criteria and control guidelines. Within 90 days of the issuance of the criteria and guidelines, the statute called for states to file a letter of intent to adopt, within 180 days, ambient air quality standards applicable to the AQCRs (or portions thereof) within the state and, 180 days thereafter, a plan for implementation, maintenance, and enforcement of the standards. § 108(c)(1), 81 Stat. at 492.

40. § 108(c)(1), 81 Stat. at 492.

41. § 108(c)(4), 81 Stat. at 493.

42. SeeMuskie, supra note 10, at 23 (the federal role under the 1967 Act was to provide "the framework for regional institutions to plan for and to implement [air quality enhancement] programs").

43. See Middleton, supra note 32, at 28 ("To encourage states to work together in developing air quality standards and implementation plans for [AQCRs] consisting of parts of two or more states, federal funds will be available to support interstate air quality planning activities." (citation omitted)).

44. 113 CONG. REC. S9858 (daily ed. July 18, 1967) (statement of Sen. Boggs).

45. The subcommittee was established by EPA under the auspices of its Clean Air Act Advisory Committee. EPA elicited the subcommittee's input on ways to efficiently integrate implementation of the new NAAQS and regional haze programs, which have common or similar emission precursors, meteorological conditions, and interstate transport regions. The subcommittee includes representatives of industry, state and local governments, tribal governments, environmental groups, academia, and other federal agencies. The subcommittee reported on its first phase of discussions, from September 1995 to November 1996, in Initial Report on Subcommittee Discussions (Apr. 1997). Additional information about the subcommittee's policy and technical analyses are available on the Internet at: (visited Feb. 26, 1998) http://ttnwww.rtpnc.epa.gov/html/o3pmrh/faca.htm#FA01.

46. CLEAN AIR ACT ADVISORY SUBCOMM. ON OZONE, PARTICULATE MATTER, & REGIONAL HAZE IMPLEMENTATION, INITIAL REPORT ON SUBCOMMITTEE DISCUSSIONS ES-2, 2-3, 2-6 to 2-7, 3-2 to 3-7 (1997) [hereinafter ADVISORY SUBCOMM. INITIAL REPORT].

47. Id. at 2-3, 2-7 to 2-8, 3-5 to 3-6.

48. See 42 U.S.C. § 7407(a)-(c), (e), ELR STAT. CAA § 107(a)-(c), (e). More than 250 inter- and intrastate AQCRs are presently codified in 40 C.F.R. pt. 81, subpt. B (1997). Section 107 of the Act has been revised several times since 1967. Current Clean Air Act § 107(a)-(b) was added in 1970 and established AQCRs for purposes of state air quality management plans under § 110. See Clean Air Amendments of 1970, Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1678 (1970). Current § 107(c), also added in 1970, specifically authorized EPA to designate interstate AQCRs necessary for attainment or maintenance of the NAAQS. Id. Current § 107(e), added in 1977, protected interstate air quality by allowing a downwind state to veto redesignation of an AQCR significantly affecting its air quality. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 103, 91 Stat. 685, 688. However, before a downwind state could exercise this veto, EPA had to first conclude that the state was significantly affected by transboundary pollution.

49. 42 U.S.C. § 7407(d)(1)(A)(i), ELR STAT. CAA § 107(d)(1)(A)(i).

50. See, e.g., id. § 7407(d)(4)(A)(iv)-(v), ELR STAT. CAA § 107(d)(4)(A)(iv)-(v) (generally providing for ozone and carbon monoxide designations based on metropolitan areas); see also 57 Fed. Reg. 43846, 43848 (Sept. 22, 1992) ("Generally, the PM-10 nonattainment area boundaries are presumed to be, as appropriate, the county, township, or other municipal subdivision in which the ambient particulate matter monitor recording the PM-10 violation(s) is located.").

51. Clean Air Amendments of 1970, Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1681-82 (adding § 110(c) to the Act).

52. Several commentators have reviewed and analyzed various aspects of this history. See, e.g., Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. PA. L. REV. 2341, 2346-74 (1996); Wilcox, supra note 7, at 14-46; Kay M. Crider, Interstate Air Pollution: Over A Decade of Ineffective Regulation, 64 CHI.-KENT L. REV. 619 (1988); R. SHEP MELNICK, REGULATION AND THE COURTS: THE CASE OF THE CLEAN AIR ACT, ch. 5 (1983); Marc Silverstein, Interstate Air Pollution: Unresolved Issues, 3 HARV. ENVTL. L. REV. 291 (1979). For a broad examination of interstate environmental management issues, see Robert E. Lutz, Interstate Environmental Law: Federalism Bordering on Neglect?, 13 SW. U. L. REV. 571 (1983).

53. For legislative history concerning the statutory NAAQS provisions, see, e.g., 1 1970 LEGISLATIVE HISTORY, supra note 19, at 123 (statement of Sen. Muskie):

The conferees' agreement, no less than the Senate bill, intends that all Americans in all parts of the country shall have clean air to breathe within the 1970's.

The conferees' agreement, no less than the Senate bill, carries the promise that ambient air in all parts of the country shall have no adverse effects upon any American's health.

See also 2 1970 LEGISLATIVE HISTORY, supra note 19, at 1182 (proceedings of May 27, 1970, Senate hearing on national air quality standards). For legislative history on the need to enhance federal support of state implementation, see, e.g., 1 1970 LEGISLATIVE HISTORY, supra note 19, at 123-24 (statement of Sen. Muskie):

Let me now review briefly where we were in September, what we had learned from our experience with the existing law, what we felt was needed for a successful effort to obtain clean air and to protect public health, and what the conferees accomplished.

There was little doubt in the Senate, in September, that the country was facing an air pollution crisis. Cities up and down the east coast were living under clouds of smog and daily air pollution alerts.

….

It was clear… that the new legislation then being considered would have to go beyond the limited objectives of the Air Quality Act of 1967.

….

… We learned from experience with implementation of the [1967] law that States and localities need greater incentives and assistance to protect the health and welfare of all people.

See also id. at 125 (statement of Sen. Muskie) ("Enforcement had to be toughened. More tools were needed. The Federal presence and backup authority had to be increased.").

54. See generally Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676. In addition to the NAAQS and enhanced federal oversight, the amendments provided for federal promulgation of new source performance standards (NSPS) for new stationary sources and national emission standards for hazardous air pollutants (NESHAPs). § 4(a), 84 Stat. at 1683-86 (adding §§ 111 and 112 to the Act).

55. Reorganization Plan No. 3 of 1970, § 2(a)(3), (a)(9), (b)(1), 35 Fed. Reg. 15623-25 (Oct. 6, 1970).

56. § 4(a), 84 Stat. at 1680 (adding § 109(b) to the Act).

57. See 36 Fed. Reg. 8186 (Apr. 30, 1971).

58. The statute prescribed some planning requirements. § 4(a), 84 Stat. at 1680-83 (adding § 110 to the Act). In subsequent revisions to the statute, Congress has increasingly prescribed SIP requirements in response to the failure to achieve the NAAQS in many areas.

59. Id., 84 Stat. at 1680 (adding § 110(a)(2)(A) to the Act).

60. Id., 84 Stat. at 1680-82 (adding § 110(a), (c) to the Act); see also Natural Resources Defense Council v. U.S. EPA, 489 F.2d 390, 395-96, 4 ELR 20204, 20204-06 (5th Cir. 1974) (citations omitted), rev'd on other grounds sub nom. Train v. Natural Resources Defense Council, 421 U.S. 60, 5 ELR 20264 (1975):

If the Administrator finds that a plan meets all of the statutory conditions, he must approve the plan within four months of the date of its submission. If, on the other hand, he finds a plan or any portion of a plan does not satisfy any of the statutory conditions, he must disapprove that plan or portion. He is then directed to prepare and publish "promptly" his own implementation plan, or portion of a plan, for the state involved. The Administrator must publish his substitute regulations within six months of the date required for submission of the implementation plan in question.

61. In full, the statutory provision called for SIPs to contain:

adequate provisions for intergovernmental cooperation, including measures necessary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such State or in any other [AQCR] ….

§ 4(a), 84 Stat. at 1681 (adding § 110(a)(2)(E) to the Act).

62. See 40 C.F.R. § 52.21(c) (1976).

63. See Natural Resources Defense Council v. U.S. EPA, 483 F.2d 690, 692-93, 3 ELR 20821, 20822 (8th Cir. 1973) (challenge to Iowa SIP approval); Natural Resources Defense Council v. U.S. EPA, 494 F.2d 519, 526, 4 ELR 20345, 20347-48 (2d Cir. 1974) (challenge to New York SIP approval).

64. The NRDC may have selected unconvincing factual circumstances in which to press its position. The judgment of the Second Circuit was influenced in part by the fact that New York was not the source, but the potential recipient, of interstate transport problems of concern to petitioners. 494 F.2d at 526 n. 7, 4 ELR at 20348 n.7. This made it is easier to conclude that provisions for mere information transfer in the New York SIP were adequate.

65. Revesz, supra note 52, at 2351-52.

66. JAMES L. REGENS & ROBERT W. RYCROFT, THE ACID RAIN CONTROVERSY 47 (2d ed. 1989).

67. Revesz, supra note 52, at 2362-94.

68. While the current law now prohibits interstate emissions that "contribute significantly" to nonattainment with the NAAQS, it continues to prohibit emissions that "interfere with" maintenance. 42 U.S.C. § 7410(a)(2)(D)(i)(II), ELR STAT. CAA § 110(a)(2)(D)(i)(II).

69. H.R. REP. No. 95-294, at 329 (1977), reprinted in SENATE COMM. ON ENV'T & PUB. WORKS, 95TH CONG., 2D SESS., 4 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977, at 2796 (Comm. Print 1978) [hereinafter 1977 LEGISLATIVE HISTORY] ("no measures were required to be included to assure that effective enforcement measures could and would be brought to bear if the information showed that harmful interstate air pollution was occurring or would occur").

70. 467 U.S. 837, 842-45, 14 ELR 20507, 20508-09 (1984) (holding that if a statute does not unambiguously resolve the precise question at issue, then the inquiry for a reviewing court is whether the agency's construction is a reasonable interpretation of the statute).

71. See Natural Resources Defense Council v. U.S. EPA, 483 F.2d 690, 692-93, 3 ELR 20821, 20822 (8th Cir. 1973); Natural Resources Defense Council v. U.S. EPA, 494 F.2d 519, 526, 4 ELR 20345, 20347-48 (2d Cir. 1974).

72. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685.

73. See § 121, 91 Stat. at 721-22 (adding § 123 to the Act).

74. See § 128, 91 Stat. at 742-45 (adding § 169A to the Act).

75. See § 103, 91 Stat. at 687-88 (adding § 107(d) to the Act).

76. See § 129(b), 91 Stat. at 745-51 (adding §§ 171-178, part D of Title I, to the Act).

77. See § 127, 91 Stat. at 731-42 (adding §§ 160-169, part C of Title I, to the Act). For a thorough examination of the judicial, administrative, and legislative genesis of the PSD program, see MELNICK, supra note 52, at 71-112.

78. See 40 C.F.R. § 51.166 (1997) (state program requirements); id. § 52.21 (federally administered program requirements for states with disapproved programs); see also 42 U.S.C. § 7475(a), ELR STAT. CAA § 165(a).

79. See 42 U.S.C. § 7410(a)(2) (1982) (CAA § 110(a)(2)).

80. The House Committee on Interstate and Foreign Commerce found:

The existing law (as interpreted by the Administrator) is an inadequate answer to the problem of interstate air pollution …. for five basic reasons. First, an information exchange without adequate procedures to act on that information is simply insufficient. Second, an effective interstate air pollution control program must include not only prevention of interstate air pollution from new sources but also abatement of pollution from existing sources. Third, an effective program must also be designed to prevent significant deterioration (within the meaning of section 108 of the bill) of air quality and to protect visibility under section 116 of the bill from interstate air pollution. Fourth, an effective program must not rely on prevention or abatement action by the State in which the source of the pollution is located, but rather by the State (or residents of the State) which receives the pollution and the harm, and thus which has an incentive and need to act. Fifth, an effective program must include a Federal mechanism for resolving disputes which cannot be decided through cooperation and consultation between the States or persons involved.

H. REP. No. 95-294, supra note 69, at 330.

81. See S. REP. No. 95-127, at 41-42 (1977), reprinted in 3 1977 LEGISLATIVE HISTORY, supra note 69, at 1415-16.

82. 42 U.S.C. § 7410(a)(2)(E) (1982) (CAA § 110(a)(2)(E)).

83. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 108, 91 Stat. 685, 693 (revising § 110(a)(2)(E) of the Act). As amended, § 110(a)(2)(E) required SIPs to contain:

adequate provisions (i) prohibiting any stationary source within the State from emitting any air pollutant in amounts which will (I) prevent attainment or maintenance by any other State of any national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to [PSD] of air quality or to protect visibility, and (ii) insuring compliance with the requirements of section 126, relating to interstate pollution abatement ….

84. See § 123, 91 Stat. at 724-25 (revising § 126 of the Act).

85. 42 U.S.C. § 7426 (1982) (CAA § 126).

86. The 1977 amendments adopted a similar provision for states and Native American tribes to protect their PSD increment and air quality related values from the adverse effects of new major stationary sources in upwind jurisdictions. The affected state or tribe may request EPA to negotiate a resolution with the parties and to resolve the dispute when they are unable to reach agreement. See 42 U.S.C. § 7474(e), ELR STAT. CAA § 164(e). Due to recent air quality management disputes between states and tribes, EPA has recently requested public input on the implementation of this provision. See 62 Fed. Reg. 27158 (May 16, 1997).

87. Similarly, revised § 110(a)(2)(E) required SIPs to ensure compliance with § 126. Congress also contemplated that states' failure to implement § 110(a)(2)(E) could be independently enforced through citizen suits under § 304 of the Act. See H. REP. No. 95-294, supra note 69, at 331.

88. Section 126(b) provided:

Any State or political subdivision may petition the Administrator for a finding that any major source emits or would emit any air pollutant in violation of the prohibition of section [110(a)(2)(E)(i)]. Within 60 days after receipt of any petition … and after public hearing, the Administrator shall make such a finding or deny the petition.

§ 123, 91 Stat. at 724.

89. See New York v. U.S. EPA, 852 F.2d 574, 581, 18 ELR 21194, 21198 (D.C. Cir. 1988) (R.B. Ginsburg, J., concurring) ("As counsel for the EPA acknowledged at oral argument, the EPA has taken no action against sources of interstate air pollution under either § 126(b) or § 110(a)(2)(E) in the decade-plus since those provisions were enacted."), cert. denied, Maine v. U.S. EPA, 489 U.S. 1065 (1989); see also, e.g., New York v. U.S. EPA, 716 F.2d 440, 13 ELR 20807 (7th Cir. 1983) (rejecting New York's challenge to EPA's approval of Illinois SIP revision relaxing SO₂ emission limitation for Kincaid power plant); New York v. U.S. EPA, 710 F.2d 1200, 13 ELR 20636 (6th Cir. 1983) (rejecting New York's challenge to EPA's approval of Tennessee SIP revision relaxing the SO₂ emission limitation for Kingston power plant); Connecticut Fund for the Env't, Inc. v. U.S. EPA, 696 F.2d 169, 13 ELR 20146 (2d Cir. 1982) (rejecting challenge to Connecticut SIP revision relaxing the limit on the sulfur content in fuel oil); Connecticut v. U.S. EPA, 696 F.2d 147, 13 ELR 20135 (2d Cir. 1982) (rejecting Connecticut's challenge to EPA's approval of New York SIP revision allowing five units at two power plants to burn high sulfur fuel); Connecticut v. U.S. EPA, 656 F.2d 902, 11 ELR 20924 (2d Cir. 1981) (rejecting Connecticut and New Jersey's challenge to EPA's approval of New York SIP revision allowing one year test burn of higher sulfur fuel at two power plants); 47 Fed. Reg. 6624 (Feb. 16, 1982) (EPA's denial of Jefferson County, Kentucky, § 126 petition to abate SO₂ emissions from the Gallagher power plant in southern Indiana); 49 Fed. Reg. 48152 (Dec. 10, 1984) (EPA's denial of Maine, Pennsylvania, and New York § 126 petitions to abate SO₂ emissions from midwestern power plants).

90. See, e.g., Connecticut v. U.S. EPA, 696 F.2d at 162, 13 ELR at 20142; Connecticut Fund for the Env't v. U.S. EPA, 696 F.2d at 177, 13 ELR at 20150.

91. Supra note 90.

92. See Connecticut v. U.S. EPA, 696 F.2d at 162-66, 13 ELR at 20142-44; Connecticut Fund for the Env't v. U.S. EPA, 696 F.2d at 177, 13 ELR at 20150. Despite the Second Circuit's efforts to narrow its rationale, the decision still became precedent for subsequent transport disputes. See, e.g., New York v. U.S. EPA, 710 F.2d at 1204, 13 ELR at 20638.

93. Congress sought to protect the interests of the downwind state. S. REP. No. 95-127, at 42 (1977), reprinted in 3 1977 LEGISLATIVE HISTORY, supra note 69, at 1416 (The interstate pollution abatement provisions cover "any … substance emitted into the air which would endanger the health and welfare of the citizens of another State, even if the substance is not regulated under the Clean Air Act within the State in which the emissions occur.").

94. See Ober v. U.S. EPA, 84 F.3d 304, 315-16, 26 ELR 21157, 21162-63 (9th Cir. 1996) (upholding EPA's decision to allow the Arizona SIP for particulate matter to take credit for relevant control measures in the carbon monoxide and ozone SIPs).

95. See Connecticut v. U.S. EPA, 656 F.2d at 909, 11 ELR at 20927 ("Nor is there any merit to the argument that EPA was required to investigate the potential interstate impact of high-sulfur fuel use by multiple pollution sources in New York."); Connecticut v. U.S. EPA, 696 F.2d at 168, 13 ELR at 20146 ("The EPA … was not required to consider the cumulative impact of all New York sources on Connecticut when approving a special [SIP revision] for [a single source] alone."); New York v. U.S. EPA, 710 F.2d at 1203-1204, 13 ELR at 20638 (rejecting New York's argument that effects of Tennessee SIP revision relaxing SO₂ emissions at Tennessee power plant must be examined in conjunction with SO₂ emissions from other sources in the state and holding instead that it is within EPA's discretion to determine the scope of its inquiry); New York v. U.S. EPA, 716 F.2d 440, 442, 13 ELR 20807, 20807 (7th Cir. 1983) (rejecting New York's argument that effects of Illinois SIP revision relaxing SO₂ emissions for Illinois' power plant must be examined in conjunction with SO₂ emissions from other sources in the state).

96. See Connecticut v. U.S. EPA, 656 F.2d at 908-09, 11 ELR at 20927; New York v. U.S. EPA, 710 F.2d at 1202-03, 1205, 13 ELR at 20637, 20639 ("The decision to consider the claim of impermissible interstate impact from the increased emissions at the Kingston plant along with the other claims of impermissible interstate impact in Section 126 proceedings rather than separately in the Section 110 proceeding represented a rational choice by the agency."); New York v. U.S. EPA, 716 F.2d at 445, 13 ELR at 20809 (Section 126 "is the proper forum in which to challenge revisions of emission levels from separate sources to determine if these aggregate emissions create an impermissible interstate impact.").

97. See Connecticut v. U.S. EPA, 656 F.2d at 907, 11 ELR at 20926 ("we conclude that where a state files a § 126(b) petition in order to challenge a neighboring state's proposed SIP revision, completion of the § 126(b) procedure is not a prerequisite to EPA approval … of the revision."); Connecticut v. EPA, 696 F.2d at 168, 13 ELR at 20146 (EPA's inaction in addressing section 126 petition "provides no basis for overturning its decision to approve" the challenged SIP revision); New York v. U.S. EPA, 710 F.2d at 1205, 13 ELR at 20639 ("Final approval of the proposed revision to the Tennessee SIP was not required to await completion of the Section 126(b) proceedings.") (citation omitted). For an examination of the relationship between §§ 110 and 126 advanced by EPA, see Crider, supra note 52, at 626-29.

98. See, e.g., Connecticut v. U.S. EPA, 656 F.2d at 904, 908 n. 5, 11 ELR at 20924, 20927 n.5 (Where EPA had failed to address a § 126 petition pending for over a year, the court stated: "Nor do we condone EPA's seeming disregard of § 126(b)'s requirement that a hearing be held within 60 days after receipt of a petition. The agency has offered neither explanation nor excuse for its tardiness."); Connecticut v. U.S. EPA, 696 F.2d at 153, 168, 13 ELR at 20136, 20145-46 (Where EPA had failed to complete review of section 126 petition filed two years earlier the court observed: "Section [126(b)] does require EPA to make a finding concerning the interstate effects of a proposed revision of a SIP within 60 days of the filing of a petition, and the Agency has presented no excuse for its failure to do so in this case.") (citation omitted).

99. See New York v. Ruckleshaus, 21 Env't Rep. Cas. (BNA) 1721, 14 ELR 20873 (D.D.C. 1984) (northeastern states and environmental groups obtained court order requiring EPA to complete action on § 126 petitions pending for more than two years).

100. New York v. U.S. EPA, 852 F.2d 574, 577-78, 18 ELR 21194, 21196 (D.C. Cir. 1988), cert. denied sub nom. Maine v. U.S. EPA, 489 U.S. 1065 (1989).

101. 42 U.S.C. § 7410(a)(2)(H)(ii) (1982) (CAA § 110(a)(2)(H)(ii)).

102. Id. § 7410(c)(1)(C) (1982) (CAA § 110(c)(1)(C)).

103. See, e.g., Greater Cincinnati Chamber of Commerce v. U.S. EPA, 879 F.2d 1379, 19 ELR 21383 (6th Cir. 1989) (rejecting on ripeness grounds a challenge to EPA's determination that the Ohio SIP for Hamilton County was inadequate to protect the SO₂ NAAQS and calling for appropriate revisions to the state plan).

104. Id. at 1380, 19 ELR at 21383 (describing SIP call procedures and potential state and federal responses).

105. See 42 U.S.C. §§ 7410(k)(5), 7511c, 7506a(c), ELR STAT. CAA §§ 110(k)(5), 184(c)(5), 176A(c); see also Virginia v. U.S. EPA, 108 F.3d 1397, 1409, 27 ELR 20718, 20723-24 (D.C. Cir.) (finding that EPA had authority under § 110(a)(2)(H)(ii) to call for SIP revisions to address interstate transport and that the changes in 1990 did not amount to a new grant of authority), on partial reh'g, modified on other grounds, 116 F.3d 499, 27 ELR 21380 (D.C. Cir. 1997).

106. See also New York v. U.S. EPA, 710 F.2d 1200, 1203-04, 13 ELR 20636, 20638 (6th Cir. 1983) (finding that it is within EPA's discretion to determine the scope of its inquiry in reviewing the interstate air pollution effects of a SIP revision).

107. See New York v. U.S. EPA, 710 F.2d at 1202, 13 ELR at 20637:

EPA acknowledged that the approved reference models used by the State of Tennessee were only valid to a distance of 50 kilometers from the source …. Since the nearest point in New York State is 926 kilometers from the Kingston plant, EPA was unable to model for any possible air quality impact in New York.

New York v. U.S. EPA, 716 F.2d 440, 443-44, 13 ELR 20807, 20808 (7th Cir. 1983); see also Connecticut Fund for the Env't, Inc. v. U.S. EPA, 696 F.2d 169, 177, 13 ELR 20146, 20150 (2d Cir. 1982):

The Agency concedes that it did not consider the impact on neighboring states from the secondary formation of sulfate particulates that occurs after SO₂ is emitted into the atmosphere. But the Agency claims that it lacks a model that would enable it to predict accurately the effects of such secondary formation, and on this issue we must defer to the Agency's technical expertise.

Connecticut v. U.S. EPA, 696 F.2d 147, 165, 13 ELR 20135, 20144 (2d Cir. 1982) ("The possibility does exist that higher sulfur emissions will react with other elements in the atmosphere to create dangerous particulates called sulfates. The short answer to petitioners' contention, however, is that the EPA, as yet, has no adequate model to predict the likelihood of that possibility.") (citations omitted); New York v. U.S. EPA, 710 F.2d at 1203, 13 ELR at 20638 ("As with long-range SO₂ effects, EPA has not yet adopted or approved any models which can accurately predict particulate concentrations resulting from SO₂ emissions."); New York v. U.S. EPA, 716 F.2d at 443-44, 13 ELR at 20808. For an examination of interstate air pollution disputes and air quality modeling issues,see Crider, supra note 52, at 633-36.

108. See New York v. U.S. EPA, 710 F.2d at 1204, 13 ELR at 20638 ("New York contends that EPA acted arbitrarily and capriciously in failing to determine the interstate impact of the proposed [Tennessee SIP] revision with respect to both SO₂ and sulfates. The courts must, and do, defer to EPA on technical decisions involved in enforcement of the Clean Air Act.").

109. See, e.g., New York v. U.S. EPA, 852 F.2d 574, 580, 18 ELR 21194, 21197 (D.C. Cir. 1988), cert. denied sub nom. Maine v. U.S. EPA, 489 U.S. 1065 (1989); Connecticut Fund for the Env't v. U.S. EPA. 696 F.2d at 178, 13 ELR at 20151 ("All three claims involve disputes over the Agency's methods of air pollution modeling, and must be resolved by the deference due the Agency's technical expertise in this field.") (citation omitted).

110. See, e.g., Air Pollution Control Dist. v. U.S. EPA, 739 F.2d 1071, 1083-84, 14 ELR 20573, 20578-79 (6th Cir. 1984); Connecticut v. U.S. EPA, 696 F.2d at 157-59, 13 ELR at 20139-40.

111. See, e.g., New York v. U.S. EPA, 710 F.2d 1200, 13 ELR 20636 (New York's attempt to abate SO₂ emissions from the Kingston power plant in Tennessee and 16 additional large midwestern power plants); New York v. U.S. EPA, 716 F.2d 440, 13 ELR 20807 (7th Cir. 1983) (New York challenge to EPA's approval of Illinois SIP revision relaxing the SO₂ emission limit at the Kincaid Power Station); New York v. U.S. EPA, 852 F.2d at 576-77, 18 ELR at 21195:

The administrative decision challenged herein involved EPA's disposition of petitions under section 126(b) filed by Pennsylvania, New York and Maine. Separate section 126 petitions filed by the three states in 1980 and 1981 alleged violations of NAAQS and impaired visibility within the borders of each state, substantially attributable to the cumulative impact of SO₂ emissions in seven midwestern states.

112. Crider, supra note 52, at 646.

113. See generally 47 Fed. Reg. 6624 (Feb. 16, 1982) (EPA's denial of petition); Air Pollution Control Dist. v. U.S. EPA, 739 F.2d at 1071, 14 ELR at 20573 (upholding EPA's denial). For a critical examination of EPA's resolution of the Jefferson County dispute, see Phillip D. Reed, Jefferson County's Lament: Clean Air Act Offers No Relief for Interstate Pollution, 14 ELR 10298 (Aug. 1984).

114. See Air Pollution Control Dist. v. U.S. EPA, 739 F.2d at 1076-77, 14 ELR at 20575. Both states and their political subdivisions were expressly authorized to file petitions under § 126(b). 42 U.S.C. § 7426(b) (1982).

115. Supra note 81 and accompanying text.

116. Air Pollution Control Dist. v. U.S. EPA, 739 F.2d at 1077, 14 ELR at 20575.

117. 47 Fed. Reg. at 6628.

118. See Reed, supra note 113, at 10299.

119. Air Pollution Control Dist. v. EPA, 739 F.2d at 1077-78, 14 ELR at 20575-76.

120. Id. at 1078, 14 ELR at 20576.

121. Id. at 1085-88, 14 ELR at 20579-80; 47 Fed. Reg. at 6625 ("since there are no PSD requirements presently applicable to Jefferson County, Gallagher's emissions cannot interfere with PSD measures ….").

122. In New York v. U.S. EPA, the D.C. Circuit upheld EPA's finding that a 20 percent contribution to a predicted NAAQS violation from nonresident sources was not significant, 852 F.2d 574, 580, 18 ELR 21194, 21197 (D.C. Cir. 1988), cert. denied sub nom. Maine v. U.S. EPA, 489 U.S. 1065 (1989).

123. Supra note 107.

124. See 49 Fed. Reg. 48152, 48155-56 (Dec. 10, 1984) (describing EPA's rationale for using the significance test advanced in the Jefferson County dispute to address subsequent § 126 petitions filed by Maine, New York, and Pennsylvania).

125. Construing § 110(a)(2)(E) to prohibit minimal interstate pollution risks holding "one state hostage to another's failure to enact the pollution control strategies necessary to conform to the requirements of the Clean Air Act." See Connecticut v. U.S. EPA, 696 F.2d 147, 164, 13 ELR 20135, 20143 (2d Cir. 1982); see also Arkansas v. Oklahoma, 503 U.S. 91, 110-11, 22 ELR 20552, 20557 (1992) (finding EPA's interpretation of a "no degradation" requirement in an interstate water pollution dispute to necessitate an actually detectable or measurable change in water quality made eminent sense because "if every discharge that had some theoretical impact on a downstream State were interpreted as 'degrading' the downstream waters, downstream States might wield an effective veto over upstream discharges.").

126. Section 126 requires notification of PSD sources as well as new and existing sources that may "significantly contribute" to NAAQS exceedances in another state. See 42 U.S.C. § 7426(a) (1982) (CAA § 126(a)). Assuming notification is required for sources whose emissions may be controlled, then the notification standard informs the remedial authority.

127. See Alabama Power Co. v. Costle, 636 F.2d 323, 360-61, 10 ELR 20001, 20011-12 (D.C. Cir. 1979) (examining when agencies mayproperly grant exemptions for de minimis or insignificant circumstances).

128. See Reed, supra note 113, at 10302.

129. See 40 C.F.R. § 52.21(c) (1997). The increment concentration was provided for in the 1977 amendments. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 127(a), 91 Stat. 685, 732.

130. For a detailed examination of this EPA-designed loophole, see Crider, supra note 52, at 629-31.

131. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 103,91 Stat. 685, 687-88 (CAA § 107(d)) (providing a joint process in which the state designates areas as nonattainment, unclassifiable, or attainment relative to the NAAQS and EPA promulgates or, if appropriate, modifies the designation).

132. See id. § 103, 91 Stat. at 688 (CAA § 107(d)(5)) (authorizing states to submit revisions to an area's air quality designation and providing for EPA to consider and promulgate the revisions as appropriate).

133. Connecticut v. U.S. EPA, 696 F.2d 147, 166-67, 13 ELR 20135, 20144-45 (2d Cir. 1982).

134. See 40 C.F.R. § 52.21(b)(13)-(14), (c) (1997). The baseline concentration requirement was provided for in the 1977 amendments. See § 127(a), 91 Stat. at 732, 741 (adding §§ 163(a), (b)(1)-(3) and 169(4) to the Act).

135. See Connecticut v. U.S. EPA, 696 F.2d at 167, 13 ELR at 20145. Ironically, several years before this decision, the D.C. Circuit held, at EPA's behest, that EPA had broader authority to protect PSD areas from interstate air pollution. See Alabama Power Co. v. Costle, 636 F.2d 323, 365-66, 10 ELR 20001, 20014-15 (D.C. Cir. 1979).

136. See S. REP. No. 95-127, supra note 81, at 41-42.

137. The 1977 amendments also uniquely gave a transport-burdened state a concurrence role over a polluting state's request to revise the air quality status of an area. See § 103, 91 Stat. at 688 (adding § 107(e)(2) to the Act). Thus, a state suffering from transboundary pollution could veto approval of the upwind state's air quality redesignation from nonattainment to attainment, prolonging the application of the more burdensome nonattainment planning requirements. However, the consent of the downwind state was required only if EPA had determined that emissions from all or part of the area significantly affected the air quality of the downwind state. Because EPA declined to assign responsibility for transport problems, this provision was of little consequence. However, in contrast to §§ 110(a)(2)(E) and 126, EPA's finding of significant interstate transport could be based on the emissions from an entire AQCR.

138. See City of Milwaukee v. Illinois, 451 U.S. 304, 317, 325-26, 11 ELR 20406, 20409, 20411 (1981) (Milwaukee II) (holding that the federal common law of nuisance was preempted by the establishment under the Clean Water Act of a comprehensive regulatory program supervised by EPA and providing an administrative process for consideration of interstate water pollution concerns). There are generally three bases for federal court jurisdiction over interstate air pollution disputes outside of the Clean Air Act: (1) original jurisdiction in the Supreme Court when a state is a party, U.S. CONST. art. III, § 2, cl. 2; 28 U.S.C. § 1251(a) ("The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States."); id. § 1251(b)(3) (providing that the Supreme Court has original but not exclusive jurisdiction over actions by a state against the citizens of another state, which may include actions against political subdivisions of states); (2) diversity jurisdiction in federal district court based on state-law claims, id. § 1332; and (3) federal question jurisdiction in federal district court under the federal common law of nuisance, Illinois v. City of Milwaukee, 406 U.S. 91, 103-07, 2 ELR 20201, 20203-05 (1972) (Milwaukee I). The availability of the latter met its apparent demise with the decision in Milwaukee II. See Lutz, supra note 52, at 604-08; see also New England Legal Found. v. Costle, 666 F.2d 30, 11 ELR 20888 (2d Cir. 1981) (based on Milwaukee II, affirmed district court decision dismissing claim that interstate air pollution from power plant was a nuisance prohibited under federal common law). The first is discretionary and of limited practical availability. See Joseph Post, Federal Common Law Suits to Abate Interstate Air Pollution, 4 HARV. ENVTL. L. REV. 117, 124 n.64, 138-39 (1980); see also Milwaukee I, 406 U.S. at 93, 2 ELR at 20201 ("It has long been this Court's philosophy that 'our original jurisdiction should be invoked sparingly'") (citation omitted). While the Supreme Court has entertained several interstate environmental disputes in the twentieth century, including the Tennessee Copper Company case quoted at the beginning of this Article, the cases preceded the broad emergence of federal environmental law. Post, supra, at 124 n.58 (also citing Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256 U.S. 296 (1921); New Jersey v. City of New York, 283 U.S. 473 (1931)). The congressionally designed administrative framework for remedying interstate air pollution, Milwaukee I, 406 U.S. at 93, 2 ELR at 20201 (availability of another forum a factor in exercising original jurisdiction), the availability of relief in state court, Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 500-01, 1 ELR 20124, 20126 (1971), concern with institutional limitations, id. at 125 n.70, and Milwaukee II, 451 U.S. at 325, 11 ELR at 20411 (recognizing complexity and unsuitability of interstate environmental issues to ad hocjudicial resolution), and a declining docket make it generally unlikely that the modern Supreme Court would exercise its original jurisdiction to hear interstate environmental disputes. See generally Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 1 ELR 20124 (enumerating reasons Court declined to exercise jurisdiction over interstate and international water pollution dispute). Regardless, the basis for maintaining a case based on the Court's original jurisdiction or diversity jurisdiction is very limited. International Paper Co. v. Ouellette, 479 U.S. 481, 494, 497, 17 ELR 20327, 20330-31 (1987) (holding that the advent of comprehensive federal environmental legislation preempts application of the law of the affected state against an out-of-state source in an interstate environmental dispute, although a nuisance claim could be maintained based on the law of the source state).

139. See 42 U.S.C. § 7604(a)(2), ELR STAT. CAA § 304(a)(2); supra note 99.

140. See 42 U.S.C. § 7607(b), ELR STAT. CAA § 307(b) (providing for judicial review in the federal courts of appeals of EPA action on SIP revisions and any other final agency actions under the Act).

141. Id. § 7491, ELR STAT. CAA § 169A; see Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685, 742-45. For a detailed examination of the programs in the 1977 amendments affecting visibility protection, with a focus on visual air quality in the southwestern United States, see Jerome Ostrov, Visibility Protection Under the Clean Air Act: Preserving Scenic and Parkland Areas in the Southwest, 10 ECOLOGY L.Q. 397 (1982).

142. See H.R. REP. No. 95-294, supra note 69, at 203-04.

143. The visibility program protects the following areas (called "mandatory class I Federal areas") in existence on August 7, 1977: international parks, national wilderness areas and national memorial parks larger than 5,000 acres, and national parks larger than 6,000 acres. 42 U.S.C. §§ 7472(a), 7491(g)(5), ELR STAT. CAA §§ 162(a), 169A(g)(5). These areas are the responsibility of a "Federal land manager," the Secretary of the federal department with authority over such lands. Id. § 7602(i), ELR STAT. CAA § 302(i).

144. Id. § 7491(a)(2), (b)(2), ELR STAT. CAA § 169A(a)(2), (b)(2). EPA has concluded that visibility is an important value for 156 mandatory class I federal areas. See 44 Fed. Reg. 69122 (Nov. 30, 1979). The list of mandatory class I areas where visibility is an important value is codified at 40 C.F.R. pt. 81, subpt. D.

145. The National Park Service Organic Act of 1916 provides that the fundamental purpose of the parks is the following: "To conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 16 U.S.C. § 1. In fiscal year 1995, there were more than 270 million recreational visits to national park system units. NATIONAL PARK SERVICE, STRATEGIC PLAN 1997, at 24 (available on the Internet at http://www.nps.gov/planning/sp/nps goal.htm#GC2 (visited Feb. 26, 1998)). While this includes some national parks not protected under the visibility program, it excludes wilderness areas that are protected under the program.

146. 42 U.S.C. § 7491(a)(1), ELR STAT. CAA § 169A(a)(1).

147. Id. § 7491(a)(4), ELR STAT. CAA § 169A(a)(4).

148. Id. § 7491(b), ELR STAT. CAA § 169A(b).

149. Id. § 7491(b)(2), ELR STAT. CAA § 169A(b)(2).

150. Id.

151. EPA's regulations are to assure reasonable progress toward meeting the national goal, which in turn is "the prevention of any future, and the remedying of any existing, impairment of visibility." See id. § 7491(a)(4), (a)(1), ELR STAT. CAA § 169A(a)(4), (a)(1) (emphasis added). The phrase "impairment of visibility" is defined in CAA § 169A(g)(6). Id. § 7491(g)(6), ELR STAT. CAA § 169A(g)(6).

152. See 45 Fed. Reg. 80084 (Dec. 2,1980) (codified at 40 C.F.R. §§ 51.300-.307 (1997).

153. See id. at 80085.

154. See id. at 80086.

155. Affected states are listed at 40 C.F.R. § 51.300(b) (1997).

156. See 56 Fed. Reg. 50172 (Oct. 3, 1991) (federal plan for Arizona requiring a 90 percent reduction in SO₂ emissions at the Navajo Generating Station to remedy visibility impairment at the Grand Canyon National Park); see also Central Ariz. Water Conservation Dist. v. U.S. EPA, 990 F.2d 1531, 1540-41, 23 ELR 20678, 20682-83 (9th Cir.), cert. denied, 510 U.S. 828 (1993) (upholding EPA's rule). For an examination of the Central Arizona Water Conservation Dist. decision, see R. Nicole Cordan, Lost in the Haze? Central Arizona Fulfills Congress's Promise to Protect Visibility in the National Parks, 24 ENVTL. L. 1371 (1994); see also 62 Fed. Reg. 2305 (Jan. 16, 1997) (approval of Colorado SIP revision requiring an 82 percent reduction in SO₂ emissions and installation of a baghouse to control particulate emissions at the Hayden Power Plant to remedy visibility impairment at the Mount Zirkel Wilderness Area).

157. In its 1993 report, the National Academy of Science's Committee on Haze in National Parks and Wilderness Areas described the causes and broad effects of regional haze:

Visibility degradation in parklands is a consequence of broader regional-scale visibility impairment. The causes of this impairment are well understood. Most impairment is caused by fine particles that absorb or scatter light. Some of these particles (primary particles) are emitted directly to the atmosphere; others (secondary particles) are formed in the atmosphere from gaseous precursors. Visibility-reducing particles and their precursors can remain in the atmosphere for several days and can be carried tens, hundreds, or thousands of kilometers downwind from their sources to remote locations, such as national parks and wilderness areas. During transport, the emissions from many sources mix together to form a uniform, widespread haze known as regional haze.

COMMITTEE ON HAZE IN NAT'L PARKS & WILDERNESS AREAS, supra note 2, at 1-2.

158. See 52 Fed. Reg. 45132-34 (Nov. 24, 1987). The certification was based on visibility monitoring, the observations of field staff and photographic information. See id. at 7804 (Mar. 12, 1987).

159. Vermont v. Thomas, 850 F.2d 99, 101, 18 ELR 21207, 21208 (2d Cir. 1988).

160. See 51 Fed. Reg. 43389 (Dec. 2, 1986) (EPA's proposed action on Vermont's visibility SIP); see also 52 Fed. Reg. 26973 (July 17, 1987) (EPA's final action on Vermont's visibility SIP).

161. Vermont, 850 F.2d at 102, 18 ELR at 21208.

162. Id. at 102-03, 18 ELR at 21208-09.

163. Id. at 104, 18 ELR at 21210.

164. 49 Fed. Reg. 48152 (Dec. 10, 1984).

165. Id. at 48153.

166. 42 U.S.C. § 7604, ELR STAT. CAA § 304.

167. Maine v. Thomas, 690 F. Supp. 1106, 19 ELR 20506 (D. Me. 1988).

168. The statute directed EPA to issue visibility regulations within 24 months of the 1977 amendments. See 42 U.S.C. § 7491(a)(4), ELR STAT. CAA § 169A(a)(4).

169. Id. § 7607(b), ELR STAT. CAA § 307(b).

170. Maine v. Thomas, 874 F.2d 883, 886-88, 891, 19 ELR 21046, 21048-49, 21050-51 (1st Cir. 1989). The court observed that the appellants were not without administrative and judicial recourse. The court explained that the appellants could petition EPA for rulemaking action to address regional haze and, if EPA denied the request, the appellants could seek judicial review in the court of appeals. Id. at 889-91, 19 ELR at 21049-51.

171. See H. REP. No. 95-294, supra note 69, at 81.

172. For detailed analysis of these issues, see Revesz, supra note 52, at 2354-58, 2374-94.

173. Natural Resources Defense Council v. U.S. EPA, 489 F.2d 390, 410-11, 4 ELR 20204, 20213-14 (5th Cir. 1974), rev'd on other grounds sub nom. Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 5 ELR 20264 (1975). Based on its holding, the Fifth Circuit ordered EPA to determine whether the SO₂ and particulate matter emission limitations in the Georgia SIP were sufficient, without reliance on tall stacks, to achieve the NAAQS. EPA's response to the court order, issued under the threat of a contempt motion, allowed some SIP credit for tall stacks under construction on the date of the court's initial decision. The court affirmed in Natural Resources Defense Council v. U.S. EPA, 529 F.2d 755, 760, 6 ELR 20413, 20416 (5th Cir. 1976), declining to apply its prior decision retroactively.

174. 489 F.2d at 403-11, 4 ELR at 20209-14. For a detailed analysis of the dispersion issue and how the Fifth Circuit decision shaped the administrative and legislative debates about dispersion techniques, see MELNICK, supra note 52, ch. 5 (Dispersion: Collusion or Contempt?).

175. See Big Rivers Elec. Corp. v. U.S. EPA, 523 F.2d 16, 5 ELR 20532 (6th Cir. 1975), cert. denied, 425 U.S. 934 (1976) (upholding EPA's disapproval of Kentucky SIP provision allowing power plants to control SO₂ emissions using intermittent control measures without demonstrating that constant emission limits were unavailable); Kennecott Copper Corp. v. Train, 526 F.2d 1149, 6 ELR 20102 (9th Cir. 1975), cert. denied, 425 U.S. 935 (1976) (upholding EPA's disapproval of Nevada SIP provision allowing intermittent SO₂ controls at a Kennecott copper smelter and affirming EPA's promulgation of substitute measures allowing dispersion techniques but also requiring Kennecott to implement continuous emission control technology when feasible).

176. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 121.91 Stat. 685, 721-22 (adding § 123 to the Act).

177. For examination of this contradiction, see Revesz, supra note 52, at 2358.

178. Senator Muskie outlined his concerns with dispersion techniques, which included "increasing evidence of the long-range transport of pollutants that become sulfates, acid rain, and other phenomenon affecting human health, vegetation and soils, but leaving no definable plume that is traceable back to the source." See 123 CONG. REC. S18026 (daily ed. June 8, 1977).

179. See generally H. REP. No. 95-294, supra note 69, at 83-86.

180. See 44 Fed Reg. 2608 (Jan. 12, 1979).

181. See 46 Fed. Reg. 49814 (Oct. 6, 1981) (second proposal); 47 Fed. Reg. 5864 (Feb. 8, 1982) (final).

182. MELNICK, supra note 52, at 148-49:

Increasingly concerned about the problem of acid rain and convinced that midwestern utilities should sharply reduce their [SO]2[] emissions, President Carter's appointees moved gradually toward greater restrictions on stack height credit. Under the Reagan administration the EPA quickly marched in the other direction. The final rules announced in 1982 allow all sources to increase their stack height to good engineering practice (generally defined as two and one-half times building height) without any demonstration that stack height increases are needed to avoid downwash…. The regulations specifically allow sources to channel all their emissions through one stack to increase plume temperature, plume rise, and, thus, dispersion of pollutants….

The EPA estimated that the rules proposed in 1979 would reduce [SO]2[] emissions by 973,000 tons and that those published in 1982 will produce reductions of less than 200,000 tons.

183. See Sierra Club v. U.S. EPA, 719 F.2d 436, 13 ELR 21001 (D.C. Cir. 1983), cert. denied, Alabama Power Co. v. Sierra Club, 468 U.S. 1204 (1984). For example, the court remanded the rules allowing an automatic increase in the formula GEP stack height without a demonstration that the increase was necessary. Id. at 456-60, 13 ELR at 21012-14. The court remanded EPA's definition of "excessive concentration" for allowing credit in excess of GEP formula stack height. EPA's definition was based on a 40 percent increase in pollution concentration relative to the concentration in the absence of the structure or terrain causing the downwash effect and was not necessarily related to pollution levels concerning public health and welfare. Petitioners sought to ensure that a creditable increase in stack height above the GEP formula was allowed only when necessary to protect local health and welfare. Id. at 446-50, 13 ELR at 21006-09. The court remanded EPA's narrow definition of "dispersion technique" that failed to disallow SIP credit for combining exhaust gases into a single stack, and changes to stack operations, exhaust gas, and process parameters that increase plume rise and enhance dispersion. Id. at 461-64, 13 ELR at 21015-17. The court remanded for further consideration EPA's failure to explain why it declined to prohibit new sources from tying into grandfathered stacks. Id. at 466, 13 ELR at 21018. The court also overturned EPA's rules allowing stack height credit to prevent plume impacts on elevated terrain as exceeding the agency's statutory authority. Id. at 452-56, 13 ELR at 21009-12.

184. See 50 Fed. Reg. 27892 (July 8, 1985).

185. See Natural Resources Defense Council v. Thomas, 838 F.2d 1224, 18 ELR 20519 (D.C. Cir.), cert. denied, Alabama Power Co. v. Thomas, 488 U.S. 888 (1988), & cert. denied, Ohio Power Co. v. Thomas, 488 U.S. 901 (1988).

186. Id. at 1231 nn.4 & 5, 18 ELR at 20521 nn.4 & 5.

187. The court remanded provisions grandfathering sources from the requirement to demonstrate that GEP formula stack increases were necessary and from state-mandated demonstration requirements, id. at 1244-48, 18 ELR 20529-32, and excluding stacks originally designed and constructed with combined gas streams from the definition of prohibited dispersion techniques, id. at 1251-54, 18 ELR at 20533-35.

188. See id. at 1230, 18 ELR at 20521 ("From 1970 to this day a dispute has raged over the extent to which pollution sources may make their required contribution toward these localized clean air goals by dispersing pollution rather than by reducing their emissions."); id. at 1233, 18 ELR at 20523 ("Thus, 17 years after the 1970 amendments and 10 years after the enactment of § 123, we again address the permissible scope of reliance on dispersion techniques."). The 1988 stack heights remand still awaits EPA action.

189. See generally Clean Air Act, Amendments, Pub. L. No. 101-549, 104 Stat. 2399 (1990). The amendments included a graduated program for ozone nonattainment planning in which the attainment dates and control requirements increased based on the severity of the air pollution problem, enhanced tailpipe standards and fuel programs, control technology requirements for designated hazardous air pollutants, an operating permit program for all major sources, and protection of stratospheric ozone. The resulting law is now codified, as amended, at 42 U.S.C. §§ 7401 to 7671q, ELR STAT. CAA §§ 101-618.

190. 42 U.S.C. § 7651(a)(2), (7), ELR STAT. CAA § 401(a)(2), (7).

191. Id. § 7651(b), ELR STAT. CAA § 401(b).

192. See, e.g., Statement on Signing the Bill Amending the Clean Air Act, Public Papers of the Presidents, George Bush (Nov. 15, 1990)

The innovative use of market incentives in the bill represents the turning of a new page in our approach to environmental problems in this country. The acid rain allowance trading program will be the first large-scale regulatory use of market incentives and is already being seen as a model for regulatory reform efforts here and abroad.

See also Michael H. Levin & Barry S. Elman, The Case for Environmental Incentives, ENVTL. F., Jan./Feb. 1990, at 7 (examining virtues of pending market-based acid rain legislation); Larry B. Parker et al., Clean Air Act Allowance Trading, 21 ENVTL. L. 2022 (1991) (examining potential implementation challenges); Jill E. Grant. The Acid Rain Program, in THE CLEAN AIR ACT HANDBOOK 369 (R. Martineau & D. Novello eds., 1998) (examining statute, regulations, and judicial decisions after several years of implementation).

193. 42 U.S.C. § 7651(a)(6), ELR STAT. CAA § 401(a)(6).

194. However, the program is expected to realize few SO₂ emission reductions in the western United States. The first phase of the program, effective January 1, 1995, applied to generator units at large eastern power plants. Id. § 7651c, tbl. A, ELR STAT. CAA § 404, tbl. A. The second phase, effective January 1, 2000, allocates allowances on the basis of an emission rate that can generally be met without adjustment at western power plants burning low sulfur coal. Id. § 7651d, ELR STAT. CAA § 405.

195. The acid rain program itself does not restrict emissions allowance trading. However, since the beginning of the program there has been concern about the importance of compliance with existing programs and the potential for those programs to interfere with trading. Compare Hon. Henry A. Waxman, An Overview of the Clean Air Act Amendments of 1990, 21 ENVTL. L. 1721, 1796 (1991) ("although allowances are freely tradeable, they can be used by utilities only where resulting emissions would not cause a violation of any ambient air quality standards or significantly deteriorate air quality in clean areas") (citation omitted) with Norman W. Fichthorn, Command-and-Control vs. The Market: The Potential Effects of Other Clean Air Act Requirements on Acid Rain Compliance, 21 ENVTL. L. 2069, 2074 ("it is essential that neither old nor new command-and-control programs be allowed to get in the way of the allowance trading market").

196. 42 U.S.C. § 7651b(a)(1), ELR STAT. CAA § 403(a)(1).

197. Id. §§ 7492(f), 7511c, ELR STAT. CAA §§ 169B(f), 184. For a comprehensive examination of ozone transport in the Northeast under the 1990 amendments and the interstate commission, see generally Wilcox, supra note 7, at 27-80.

The law also empowered EPA to establish, on its own initiative or a state request, transport commissions for interstate air pollution contributing significantly to violation of any NAAQS or visibility impairment in protected national parks and wilderness areas. 42 U.S.C. §§ 7492(c)-(e), 7506a, ELR STAT. CAA §§ 169B(c)-(e), 176A. To date, EPA has established only the mandatory commissions. Several years ago, states in the lower Lake Michigan area considered petitioning EPA for an interstate ozone commission but eventually declined. See David P. Novello, The OTC Challenge: Adding VOC Controls in the Northeast, 42 J. AIR & WASTE MGMT. ASS'N 1053 (1992).

198. Both commissions make each affected state a member, and provide for the state members to recommend regional strategies for federal adoption as regionwide state planning requirements. 42 U.S.C. §§ 7492(d)-(e). 7511c(c), ELR STAT. CAA §§ 169B(d)-(e), 184(c). While EPA is represented on both commissions, EPA was expressly excluded from voting on recommendations under the ozone transport commission. Id. §§ 7506a(b)(1), 7511c(a), ELR STAT. CAA §§ 176A(b)(1), 184(a). The Grand Canyon commission requirements specify that the federal representatives must be ex officio members. Id. § 7492(c)(3), ELR STAT. CAA § 169B(c)(3). Ex officio literally means "by virtue of the office" and does not necessarily preclude the federal representatives from voting on commission recommendations. However, in establishing the Grand Canyon commission, EPA itself participated as a nonvoting member and invited representatives of federal land management agencies to participate "as nonvoting members of the Commission." See Letters from William K. Reilly, Administrator, EPA, to John F. Turner, Director, Fish and Wildlife Service, to Cy Jamison, Director, Bureau of Land Management, to James M. Ridenour, Director, National Park Service, and to F. Dale Robertson, Chief, U.S. Forest Service (Oct. 30, 1991).

199. See 1 SENATE COMM. ON ENVIRONMENT & PUBLIC WORKS, 103D CONG., 1ST SESS., A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 1053 (Comm. Print 1993) [hereinafter 1990 LEGISLATIVE HISTORY] ("The creation of a regional air quality commission is an important and creative part of the bill. It recognizes that it is impossible to put a cleanup bubble over an individual State. It puts some responsibility on the States to be good neighbors.") (statement of Sen.Lieberman); see also id. at 789 ("I expect the members of the Commission to fairly but vigorously press for pollution control measures, particularly in the upwind areas, so that downwind areas like Maine will be able to achieve cleaner air.") (statement of Sen. Mitchell); 2 1990 LEGISLATIVE HISTORY, supra, at 3000 (the ozone transport region for the Northeast will ensure that "neighboring States that share air quality problems and pollution sources coordinate the air quality programs to ensure that each State takes care of its own pollution sources and is responsible for the air quality problems that it may create for others.") (statement of Rep. Gejdenson).

200. 42 U.S.C. § 7511c(a). ELR STAT. CAA § 184(a); see also 1 1990 LEGISLATIVE HISTORY, supra note 199, at 1002-03 ("Congress established a transport commission for the Northeast corridor where transport of ozone and its precursors has been clearly demonstrated.") (statement of Sen. Baucus); Hon. Henry A. Waxman et al., Roadmap to Title 1 of the Clean Air Act Amendments of 1990: Bring Blue Skies Back to America's Cities, 21 ENVTL. L. 1843, 1853 (1991) (describing, on the basis of a 1989 Office of Technology Assessment report, the formation of broad eastern ozone masses that cascade downwind carrying unhealthful ozone levels as far north as Acadia National Park in Maine). The region includes Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and northern Virginia.

201. See, e.g., 1 1990 LEGISLATIVE HISTORY, supra note 199, at 1052-53 ("Because my State of Connecticut is the victim of air pollution transported from other States and regions, these new provisions [directly addressing ozone transport] are of critical importance to us.") (statement of Sen. Lieberman); id. at 1106

Of particular importance to New Jersey is a provision I sponsored with others in the Northeast region to stop other States from sending their pollution into our States, harming the health of our residents and putting an impossible burden on our industries. This program would regulate pollutants transported from upwind States which make it impossible to achieve health standards.

(statement of Sen. Lautenberg).

The regional measures include enhanced vehicle inspection and maintenance in metropolitan statistical areas with populations of 100,000 or greater, reasonably available control technology for sources of volatile organic compounds (VOCs) covered by an EPA-issued control technique guideline, measures achieving emission reductions comparable to "stage II" vehicle refueling controls, and nonattainment new source review requirements for sources emitting 50 tons or more per year of VOCs. 42 U.S.C. § 7511c(b), ELR STAT. CAA § 184(b). For a detailed examination of the measures legislated for the ozone transport region, see Novello, supra note 197, at 1053-55; Waxman et al., supra note 200, at 1897-98.

202. In the event adjustments were necessary. Congress authorized EPA to add or remove from the transport region all or parts of states not significantly contributing to the transport problem. 42 U.S.C. §§ 7511c(a), 7506a(a)(1)-(2), ELR STAT. CAA §§ 184(a), 176A(a)(1)-(2).

203. See 1 1990 LEGISLATIVE HISTORY, supra note 199, at 1052 ("Perhaps most important, for those of us in the Northeast, this legislation, in the acid rain and ozone titles, for the first time deals directly with the need to control pollution traveling from one state to another.") (statement of Sen. Lieberman).

204. 4 1990 LEGISLATIVE HISTORY, supra note 199, at 5076

For us in the Northeast, the President's grant of discretion to EPA on this critical issue is simply unacceptable. It will not provide for clean and healthy air in our States. Indeed, it is in part the lack of support of EPA which in the past has prevented the effort to institute regional controls from being successful.

(statement of Sen. Lieberman).

205. Id.

[A] concern was raised on the committee level that the bill as introduced gave the Regional Transport Commission in the Northeast … too much authority. That is to say there was a fear expressed that this Regional Transport Commission would have ultimate authority to impose additional controls on sources of emissions in the separate States.

206. Clean Air Act § 184(c)(4) specifies that if EPA gives the recommended measures less than full approval, it must explain why the disapproved measures are either unnecessary or unlawful, and recommend at least equally effective alternatives. 42 U.S.C. § 7511c(c)(4), ELR STAT. CAA § 184(c)(4); see also 1 1990 LEGISLATIVE HISTORY, supra note 199, at 1004

EPA bears a heavy burden of demonstrating that the additional control measure(s) is not necessary to bring any area of the region into attainment by the dates provided and to recommend equal or more effective actions that could be taken by the Commission to conform the disapproved portion of the recommendations.

(statement of Sen. Baucus); id. at 1053 (statement of Sen.Lieberman) (same); 4 1990 LEGISLATIVE HISTORY, supra note 199, at 5077 (statement of Sen. Lieberman).

A number of constitutional challenges were ultimately mounted against the commission's role in shaping potential federal control strategies including claims that it ran afoul of the Appointments Clause, nondelegation doctrine, Joinder and Compact Clauses, and Tenth Amendment. Virginia v. U.S. EPA, 108 F.2d 1397, 1399, 27 ELR 20718, 20718 (D.C. Cir.), on partial reh'g, modified on other grounds, 116 F.3d 499, 27 ELR 21380 (D.C. Cir. 1997). As examined below, the D.C. Circuit overturned EPA's adoption of the commission's only formal recommendation on statutory grounds and found it unnecessary to reach the constitutional questions. Id. at 1410-13, 27 ELR at 20724-26.

207. 42 U.S.C. § 7511c(c)(1), ELR STAT. CAA § 184(c)(1).

208. The states unanimously entered a memorandum of understanding to employ additional NO_x controls on stationary sources in the region. See Novello, supra note 197, at 1056. This internal agreement was not formally transmitted to EPA for regulatory action.

209. See 59 Fed. Reg. 21720, 21737-38 (Apr. 26, 1994) (reprinting text of recommendation); see also id. at 21723 (discussion of procedures involved in adopting recommendation). While the majority of the 13 affected jurisdictions supported the recommendation, Delaware, New Hampshire, New Jersey, and Virginia dissented. Id.

210. 60 Fed. Reg. 4712 (Jan. 24, 1995); see Virginia v. U.S. EPA, 108 F.3d at 1402-03, 27 ELR at 20719-20 (describing procedures governing EPA's review and implementation of the commission's recommendation). EPA estimated that implementation of the California car program in the Northeast would reduce VOC emissions by 95 tons per day and NO_x emissions by 195 tons per day. 60 Fed. Reg. at 4713.

211. Virginia v. U.S. EPA, 108 F.3d at 1411-13, 27 ELR at 20724-26 (finding that while the Clean Air Act allows a variety of measures to reduce emissions from motor vehicles, it specifically prohibits EPA from mandating more stringent motor vehicle emission standards outside of California before the model year 2004).

212. 62 Fed. Reg. 926 (Jan. 7, 1998). EPA established a framework that gave states in the Northeast ozone commission and automobile manufacturers a limited window to voluntarily "opt-in" to binding participation in the program. The program is voluntary because while the Clean Air Act allows states to adopt more stringent automotive emission standards, EPA is precluded from requiring these standards before model year 2004. See 42 U.S.C. § 7521(b)(1)(C), ELR STAT. CAA § 202(b)(1)(C).

213. The program would reduce motor vehicle emissions of nitrogen oxides by about 50 percent and hydrocarbons by about 70 percent. Warren Brown & Martha M. Hamilton, Automakers Plan Low-Emissions Cars: Demands for State Compromises Dropped, WASH. POST, Feb. 5, 1998, at E1. The voluntary standards are less stringent than California's, and some automakers seeking to avoid California requirements and to standardize emission requirements initially hinged their participation on full participation by the Northeast ozone commission states. This condition would have required the northeastern states that have adopted the stricter California car requirements to give them up for the national LEV program. See Warren Brown & Martha M. Hamilton, Super-Clean Cars Can Be Ready in '98: GM, Ford Hinge Plans on State Rules. WASH. POST. Dec. 18. 1997, at A1; see also 63 Fed. Reg. at 930 n.11 (list of northeastern states with California car program). As of the publishing deadline for this Article, this demand had been dropped and the outlook for the national LEV program was promising. Warren Brown & Martha M. Hamilton, Automakers Plan Low-Emissions Cars: Demands for State Compromises Dropped, supra, at E1.

214. 42 U.S.C. § 7492(f), ELR STAT. CAA § 169B(f).

215. 56 Fed. Reg. 57522, 57522-23 (Nov. 12, 1991).

216. The voting states and tribes were Arizona, California, Colorado, Nevada, New Mexico, Oregon, Utah, Wyoming, the Pueblo of Acoma, the Hopi Tribe, the Hualapai Tribe, and the Navajo Nation. The non-voting participants included representatives of the Columbia River Inter-Tribal Fish Commission, EPA, National Park Service, U.S. Bureau of Land Management, U.S. Fish and Wildlife Service, and U.S. Forest Service.

217. The Grand Canyon commission was directed to assess technical data and information and recommend measures to protect visual air quality in the region, including promulgation of regional haze regulations. 42 U.S.C. § 7492(d), ELR STAT. CAA § 169B(d).

218. See GRAND CANYON VISIBILITY TRANSPORT COMM'N, RECOMMENDATIONS FOR IMPROVING WESTERN VISTAS, REPORT TO THE U.S. EPA (1996).

219. 42 U.S.C. § 7492(e)(1), ELR STAT. CAA § 169B(e)(1).

220. Id. § 7604(a), ELR STAT. CAA § 304(a).

221. See 136 CONG. REG. S2877 (daily ed. Mar. 21, 1990) (statement of Sen. Adams) ("The amendments to section 304 … address the specific circumstances raised by [the Maine] case[]. These amendments should clarify the jurisdiction of the district court to provide relief when EPA defers final action, and then fails to complete the action deferred,"); see also 136 CONG. REG. H12883 (daily ed. Oct. 26, 1990) (statement of Rep. Wyden) ("The amendments to section 304 … should make EPA's failure to complete [regional haze] regulations after 13 years [counting from the adoption of the 1977 amendments to the adoption of the 1990 amendments] actionable as unreasonable delay. If missing a 2-year deadline by 11 years is not unreasonable, I'm not sure what is."). For a discussion of the Maine decision, see supra notes 166-70 and accompanying text.

222. 62 Fed. Reg. 41138 (July 31, 1997).

223. Id. at 38679 (July 18, 1997). As discussed previously, the Clean Air Act provides for EPA to issue NAAQS that protect both the public health and welfare. 42 U.S.C. § 7409(b), ELR STAT. CAA § 109(b). Primary standards are intended to protect the public health. Secondary standards are intended to protect against effects on the public welfare. Welfare effects are in turn defined broadly to encompass a panoply of ecological, agricultural, and sociocoonomic valucs, including visibility. Id. § 7602(h), ELR STAT. CAA § 302(h). EPA therefore considered the effects on visual air quality in reviewing and, ultimately, revising the secondary standards for particulate matter.

224. See 42 U.S.C. § 7410(a)(2)(D), ELR STAT. CAA § 110(a)(2)(D).

225. See supra notes 122-24, 126-27 and accompanying text.

226. See 5 1990 LEGISLATIVE HISTORY, supra note 199, at 8361 ("Since it may be impossible to say that any single source or group of sources is the one which actually prevents attainment, the bill changes 'prevent attainment or maintenance' to 'contribute significantly to nonattainment or interfere with maintenance by,' thus clarifying when a violation occurs.") (Senate Committee on Environment and Public Works).

227. Id. ("the amendment includes 'any other type of emissions activity,' which makes the provision effective in prohibiting emissions from, for example, multiplc sources, mobile sources, and area sources.").

228. The focus on protection against stationary source transport under the 1977 law should not have impeded EPA's ability to effectively resolve disputes involving stationary sources yet EPA repeatedly failed to protect downwind states from stationary source pollution. For example, in several of the cases examined previously, northeastern states endeavored to curtail SO₂ emissions from midwestern power plants to mitigate acid deposition. Moreover, Jefferson County's unavailing objections to interstate pollution from the Gallagher power plant involved a single stationary source.

229. See supra note 227.

230. See 2 1990 LEGISLATIVE HISTORY, supra note 199, at 3298.

231. 62 Fed. Reg. 38421, 38421 (July 18, 1997).

232. Id. at 38425, 38428.

233. Id.

234. Id. at 60371 (Nov. 7, 1997).

28 ELR 10155 | Environmental Law Reporter | copyright © 1998 | All rights reserved