Pace of Clean Air Act rulemakings turns heads, draws lawsuits

The Obama administration is in the midst of a landmark series of Clean Air Act rulemakings.

In 18 months, U.S. EPA has -- among other things -- stiffened standards for sulfur dioxide and nitrogen dioxide for the first time in decades, revamped the George W. Bush administration's smog regulations and issued the first climate rules under the Clean Air Act.

And that is just the beginning. EPA is expected to lay out additional plans for the Clean Air Act today as it marks the law's 40th birthday in a gathering of former agency administrators, industry officials, environmentalists and lawmakers.

The agency's use of the law has drawn criticism from industry and praise from environmentalists. Conservatives say President Obama's EPA is stretching the air pollution law to meet political objectives. Industry attorney Joe Stanko said EPA's use of the Clean Air Act to regulate heat-trapping carbon dioxide and other greenhouse gases is a case of a "square peg in a round hole."


"The act was never meant to regulate a pollutant emitted in the quantities of CO2, especially when no control technology exists," Stanko said in an interview.

Added former Bush EPA air chief and now industry attorney Jeff Holmstead, "The aggressiveness of the rules has taken people by surprise."

Dozens of industry groups, states and others have filed lawsuits challenging EPA's efforts to clamp down on greenhouse gases from industrial facilities next January, when the agency's rules will formally kick in.

Holmstead also pointed to EPA tightening the air quality standards for sulfur dioxide and nitrogen dioxide and plans to strengthen the ozone standard. EPA is required by the Clean Air Act to set allowable limits for those and three other pollutants: lead, carbon monoxide and particulate matter.

"I can't think of any administration that has ever revised more than two of those," Holmstead said, noting that the Clinton administration tightened standards for both fine particles and ozone.

The Obama administration, he added, "has basically said, 'We're going to review them all, and we're going to make them all more stringent.'"

But the Obama EPA says it is merely complying with the guidelines laid out in the Clean Air Act. The law lays out timetables requiring EPA to periodically review standards and update them if necessary to protect public health and welfare. Several other EPA rules came in the wake of court decisions tossing out George W. Bush-era rules and the 2007 U.S. Supreme Court decision that gave EPA the authority to regulate greenhouse gases as a pollutant under the act.

"The Obama administration inherited a total mess," said Frank O'Donnell, president of the advocacy group Clean Air Watch. "Virtually everything done by its predecessor was struck down by the courts because it was illegal." O'Donnell pointed to two Bush administration rules to curb power plant pollution and its fine particle standards, all of which were either tossed out or sent back to the agency by a federal court.

"They have tried scrupulously to follow the advice of the science advisers and make sure that their actions are based on the best science as well as the public health needs," O'Donnell said. "On top of that, they also inherited unfinished business on greenhouse gases."

Comparisons to 1990 overhaul

The administration's rulemaking sprint has some observers drawing parallels to the years following the Clean Air Act amendments of 1990, the latest major overhaul to the law that sparked a series of major clean air reforms.

"While the [Obama] administration will point to mandates from several court cases, the sheer number and breadth of regulatory actions are almost unprecedented since the implementation of the '90 amendments," Stanko said.

The 800-page 1990 amendments -- shepherded by the administration of George H.W. Bush -- addressed a wide range of air pollution problems from acid rain to air toxics, automobile tailpipe emissions and depletion of the Earth's stratospheric ozone layer.

An EPA study completed near the end of the Clinton administration showed that the health benefits of the 1990 amendments exceeded their costs by a margin of four to one. The study projected that the health and environmental benefits would total about $110 billion by 2010, compared with about $27 billion in estimated costs.

Bill Rosenberg, who served as EPA's air chief under George H.W. Bush, said those amendments set the stage for vast improvements that followed. And he disputed the notion that the Obama administration has been more aggressive on clean air than its predecessors.

"There's been a real steady progress in my view and throughout many administrations," Rosenberg said. "I wouldn't say this one has done more or less than others, but they certainly have made nice improvements."

Rosenberg said the Obama administration's most noteworthy clean air achievement has been issuing standards aimed at boosting motor vehicle efficiency.

And while the administration has taken steps to tackle greenhouse gas emissions, Rosenberg noted that those rules have not yet been implemented. "Most of the carbon initiatives are unfinished business," he said.

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