When Pollution Makes It All The Way to the Supreme Court

“Albert V Bryan Federal District Courthouse – Alexandria Va – 0008 – 2012-03-10” by Tim Evanson is licensed under CC BY-SA 2.0

The Clean Air Act (CAA) of 1970 was a major environmental turning point in the United States which was successful in lowering emissions and increasing air quality. The CAA created:

  • specific rules regarding the creation and adoption of national ambient air quality standards (NAAQS)
  • emissions standards for new sources and mobile sources
  • hazardous air pollution monitoring
  • open monitoring reports and a framework for citizen suits
  • deadlines for meeting standards
  • framework for federal and state enforcement of the rules

Initially, the CAA only monitored six pollutants; sulfur dioxide (SO2), nitrogen dioxide (NO2), particulate matter (PM), carbon monoxide (CO), ozone (O3), and lead (Pb). The Environmental Protection Agency released a statement in 2003 that they didn’t have the power to regulate greenhouse gases such as CO2, and that even if they did, they would decline. So in 2006, twelve states and many cities sued the Environmental Protection Agency (EPA) in Supreme Court. The case was called Massachusetts v. Environmental Protection Agency. The states believed that the EPA should enforce emissions regulations for CO2 because it can be harmful in high concentrations and is a factor in global warming, making it a pollutant. In order to reach a verdict, the justices had to decide 3 things: (1) whether the petitioners had standing, or proof that they were harmed by the EPA’s actions or lack thereof, (2) whether CO2 is an air pollutant, and (3) whether the EPA can refuse to regulate emissions from motor vehicles.

The final decision was a close call (5-4), but the Supreme Court decided that the petitioners had standing and the EPA was responsible for regulating greenhouse gases & tailpipe emissions.

“Los Angeles Traffic – The Newhall Pass” by JefferyTurner is licensed under CC BY 2.0

After the 2010 midterm congressional election, the makeup of the House of Representatives shifted, and the majority opposed the EPA’s new agenda for the Clean Air Act. The House passed bills that would eliminate protections against hazardous air pollution for certain machines and block regulation of greenhouse gas emissions and stricter control over fine particulate matter. The House also passed legislation stating that cost should be considered when setting the NAAQS. Ultimately, the bills to loosen air pollution regulations were not approved in the Senate.

One major drawback of the CAA is the “grandfathering” of emissions-producing facilities. Only new facilities are required to install advanced pollution control technologies. Old facilities are allowed to maintain, repair, and replace parts, increase their hours of operation, and even switch fuel types without updating their air pollution control technology. It is because of this that coal-fired power plants in the United States often do not have sufficient pollution control installed.

“Currently, about 30 percent of the nation’s coal-burning power plant units do not have scrubbers, devices that use a cloud of fine water droplets, along with crushed limestone, to pull sulfur out of the plant’s exhaust before it reaches the atmosphere. Another 22 percent of plants do not have advanced nitrogen oxide controls that limit smog.”

Eric Lipton in The New York Times
“Smog over Sao Paulo” by Thomas Locke Hobbs is licensed under CC BY-SA 2.0

Another important case which demonstrates the pitfalls of the CAA was Whitman v. American Trucking Associations, Inc., which took place in 2001. American Trucking Associations, Inc. argued that cost should be a factor in the making of NAAQS. The justices of the Supreme Court unanimously decided in favor of Whitman that cost will not be a consideration when setting NAAQS. Despite this decision, the EPA carries out a cost-benefit analysis on all major rulings, including those about air pollution. This is a problem because cost-benefit analyses usually put a price on life, health, and property, and weigh these against the cost to industries for limiting their emissions. These kinds of analyses can result in looser regulations, when in actuality, they should be much stricter than they already are. And of course, there are many more consequences of pollution than what can be expressed in terms of dollars, such as irreversible damage to the planet and all the microbes and animals within it.

Another issue is the lack of guidance when it comes to non-threshold pollutants (meaning any level is harmful). It is up to the EPA to decide how to set limits, and what limits to set, for these chemicals.

States face a unique set of challenges with it comes to air pollution. The EPA decides whether or not a state is passing or failing air quality regulations and assigns each one an Attainment Classification every time the NAAQS are updated. Since this happens rather infrequently, compliance with air quality regulations is only updated approximately every 5 years. Simultaneously with the evaluation, states are required to submit a plan of how they will meet the new air quality standards, but the process is complex and time-intensive, and states are not always equipped with the resources or authority to limit emissions within or upwind of their state. This becomes a serious issue when major cities fail to meet regulations and fall behind while the EPA continues to make more stringent regulations. In the future, simplifying this process could allow for more frequent evaluation of attainment status and might help polluted cities successfully improve air quality in a timely manner.

“Toronto: City skyline from Riverdale Park” by The City of Toronto is licensed under CC BY 2.0

Other issues with the CAA:

  • It is difficult to determine the exact location of out-of-state emissions sources when they drift into another state. There is also uncertainty regarding various aspects of interstate transport if a state needs to reduce related emissions, such as how to reduce it, when, and in what locations.
  • It is unclear how the EPA should exercise control over greenhouse gas emissions (i.e. cap-and-trade program? carbon tax?)
  • The written law contains many redundant and incohesive regulatory requirements

Some potential solutions listed by Nordhaus in the article linked below are to continue to eliminate “grandfathering”, more guidance on how standards should be chosen, to let states focus more on “hot spots” rather than statewide emissions, and to give the EPA authority to limit interstate emissions.

The article Modernizing the Clean Air Act: Is There Life After 40? by Robert R. Nordhaus perfectly outlines limitations of the CAA and provides simple policy solutions, and supplied much of the information I used to write this blog post. Also, if you’ve listened to the hilarious and intriguing podcast “Let’s Go to Court!” then you know how I chose the title of this blog post. Have a great day and be sure to share your thoughts on the CAA in the comments below. Sincerely, Jess 🙂

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