Change to the Clean Air Act Is Built Into New Energy Bill
Published: April 16, 2005
WASHINGTON, April 15 - Deep in the energy bill that was approved by a House committee this week, under a section titled "Miscellaneous," is a brief provision that could have major consequences for communities struggling to clean up their dirty air.
If it becomes law, it would make one of the most significant changes to the Clean Air Act in 15 years, allowing communities whose air pollution comes from hundreds of miles away to delay meeting national air quality standards until their offending neighbors clean up their own air.
The provision could especially affect states like New York, which has some of the nation's dirtiest air, and other Northeastern states that have always had difficulty meeting federal standards for ozone, a leading cause of smog, because much of any state's pollution originates in states to the south and west.
Under the new provision, the "downwind" states would not be required to meet clean air standards until the "upwind" states that were contributing to the problem had done so. Currently, states can get more time but only if they agree to added cleanup measures.
Proponents of the measure in Congress, as well as a spectrum of industry groups, say that the change would give state and local governments the flexibility and discretion they urgently need to deal with air pollution from distant sources. Otherwise, they would have to impose much stricter limits on pollution from local sources, including power plants, factories and automobiles.
But House members who fought against the measure, and other opponents, say flexibility and discretion are just other words for delay, saving money for industry and posing risks for millions of people living where the air does not meet health-based standards.
Opponents also say that the new provision would undermine a muscular rule announced last month by the Environmental Protection Agency, the Clean Air Interstate Rule, which sets new power-plant emissions for three major pollutants for the eastern half of the United States. One of those pollutants, nitrogen oxide, is cooked by sunlight into ozone, or smog.
Representative Joe L. Barton, Republican of Texas, chairman of the House Energy and Commerce Committee and author of the provision, added the same provision to the House energy bill in 2003 when House and Senate leaders began negotiations on a final bill. The effort failed over other issues, and it remains unclear whether the provision would remain in a final bill this time.
Mr. Barton said in an interview it was not his intent to weaken the Clean Air Act, which sets national pollution standards, nor to undermine the interstate rule, which addresses windblown issues by requiring states to meet the same emission standards for power plants as an aid to reducing overall emissions.
Rather, he said, he wanted to restore the E.P.A.'s ability to grant extensions to areas that could demonstrate that they could not control their own pollution - a right the agency assumed it had, and acted on, during the Clinton administration until three federal courts ruled that such discretion violated the Clean Air Act.
"I'm trying to make the law more implementable, more common sense," said Mr. Barton, who represents a district south of Dallas. "I live in the real world, where it's a lot tougher to meet arbitrary standards in an area that's growing and where more people are driving cars and trucks."
"Even my adversaries would admit that I'm not trying to abolish standards or gut the Clean Air Act," he added. "I'm just trying to find a more realistic solution to a real-world situation."
It is a solution that has been warmly embraced by the National Association of Manufacturers, the Electric Reliability Coordinating Council and other trade groups. "We're clearly in support of any kind of flexibility," said Bryan Brendle, an official with the manufacturers organization.
But Mr. Barton's adversaries argue that his approach poses unintended consequences, including an invitation for local communities that have not met air quality standards to use the extra time to put off reducing emissions from sources inside their own borders. They say Mr. Barton's provision could delay improvements by 10 years as one area waits for another, which waits for another - a prospect that Mr. Barton disputed.
"Bottom line, no longer will there be any incentive for states or municipalities to clean up more air pollution, and the E.P.A. has no ability to force them to do it," said Representative Tom Allen, a Maine Democrat whose motion to kill the Barton provision failed by a 29-to-19 committee vote, largely along party lines.
Mr. Allen said that tougher air quality standards announced by the environmental agency since the failure of the 2003 energy bill and the new interstate rule made Mr. Barton's provision unnecessary and "would lead to a lot more asthma than is needed."
John Millett, an E.P.A. spokesman, said the agency had taken no position on Mr. Barton's provision, but a high-ranking agency official, who spoke on the condition of anonymity because he was not authorized to speak for the agency, said "a real debate" was under way among agency officials about its potential effectiveness and its effect on the Clean Air Act.
Mr. Millett said: "Some people think it's a good idea. Most don't."