JURIST Guest Columnist Victor Flatt of the University of Houiston Law Center says the recent D.C. Circuit Court of Appeals decision to vacate the EPA's implementation of the Clean Air Interstate Rule reminds us that the statutory mandates of our environmental laws are important, and that an individual administration cannot simply change or alter them at whim...
Since the CAIR seemed poised to produce actual reductions in harmful pollutants, which could save 17,000 lives annually, the dismay is understandable. After all, prior EPA enforcement of section 7410(a)(2)(D)(i)(1) was woefully inadequate, leaving many states in situations where it was almost technically impossible for them to meet the CAA's requirements within their state. And this was the only Bush EPA action that had received broad support from environmental and public health organizations. Nevertheless, as the D.C. Circuit reminds us, "all the policy reasons in the world cannot justify reading a substantive portion out of a statute."
The DC Circuit correctly noted that under Sec. 7410(a)(2)(D)(i)(1), the EPA could only approve states' State Implementation Plans, or SIPs, if the plans insured that pollutant sources within that state did not cause significant pollution loads in other states. This reflects one of the prime reasons for a federal air pollution control law in the first place the abatement and control of interstate pollution. Unfortunately, for a variety of reasons, both technical and political, this requirement lay dormant for most of the history of the Act. The evolving understanding of this problem finally led individual states to petition the EPA to make findings of "out of state contributions" as early as 1997, leading to the first real attempt of the EPA to address this important issue.
Over the evolving attempts to do so under both the Clinton and Bush administrations, the DC Circuit has been consistent in its requirement that the EPA hew to specific statutory language in the Act, while also exhibiting a high degree of deference to specific agency scientific and technical findings of contribution. Thus, in Michigan v. EPA and in Appalachian Power Company v. EPA, the DC Circuit broadly upheld the EPA's findings that specific sources were causing downwind non-compliance, and even upheld a somewhat novel use of cost reduction analysis to allow the EPA to make this determination on a wider and broader scale.
These prior decisions and current vogue of pollutant trading systems led many to believe that the DC Circuit would approve a broad trading system as a solution to the interstate problem. A broad trading system, like CAIR, however, fails to meet the requirements of the section at issue because it doesn't pinpoint which sources cause downwind state non-compliance, nor does it require those sources to make the reductions necessary to return downwind state compliance. Though CAIR clearly would make improvements in overall air quality in the Eastern United States, thus meeting several of the overall goals of the CAA, it fails to do so in the way that takes account of all values at issue in the CAA. As North Carolina correctly noted, the CAA not only requires overall air quality to be improved, but mandates improvements in specific areas that are being harmed by out of state sources. It is not enough to improve the air quality in the Washington D.C. metro area, if Charlotte, North Carolina is still being inundated with pollutants from upwind states. Moreover, the competitive economic advantages and disadvantages of states struggling to meet their CAA requirements while protecting the health of their citizens (in other words, the federalism and sovereignty issues) are mostly ignored by a rule like CAIR.
Not having a shortcut like CAIR makes for a harder administration of this CAA provision to be sure, since it requires the EPA to focus on and reduce sources on an individual basis. But the DC Circuit in Michigan and Appalachian Power has shown a great degree of deference as to how this can be accomplished, and what evidence can be used to make this finding. While this means that some reductions will surely take longer without CAIR, it needn't delay real health improvements if the agency acts quickly to make requested findings on upwind sources and is willing to impose a Federal Implementation Plan (or "FIP") on non-compliant states.
While environmentalists were understandably thankful that CAIR seemed to represent some significant pollution reductions, the method of avoiding legislative specificities in this case are simply part and parcel of the Bush Administration's attempts to accomplish its policy goals without following the legalities of the CAA. Just because the result would have been "better" in this case than in the Administration's Mercury rule or New Source Review Routine Maintenance and Repair Rule, doesn't make its use less dangerous. This case reminds us again that the statutory mandates of our environmental laws are important, and that an individual administration cannot simply change or alter them on its whim. The complexities of pollution reduction and accompanying issues of health and economic development require that policy choices be made in the appropriate arena, the legislature. If our policy provisions in the current CAA are unworkable, let us explore changing them there.
This case should also remind us, as we focus on the big issue of climate change, that we still have work to do on more traditional pollution control. Perhaps this will lead to a truly integrated and thoughtful debate on these intertwined issues in the next administration.
Victor B. Flatt is the A.L. O'Quinn Chair in Environmental Law and Director of the Center for Environment, Energy, and Natural Resources at the University of Houston Law Center