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Summary:
Major amendments to the Clean Air Act were among the first items on the agenda of the 109th Congress, with S. 131 (the Clear Skies Act) scheduled for markup by the Senate Environment and Public Works Committee March 9. But the Committee failed to approve the bill, on a 9-9 tie vote.
A deadline for mercury regulations has helped drive the Clear Skies debate: EPA faced a judicial deadline of March 15, 2005, to promulgate standards for mercury emissions from electric power plants. The agency met this deadline, but the specifics of its chosen regulation have been widely criticized and are now being challenged in court by 10 states. The agency also finalized, on March10, the Clean Air Interstate Rule (CAIR), which will cap emissions of sulfur dioxide and nitrogen oxides from power plants in 28 eastern states and the District of Columbia.
Rather than promulgate these rules, the Administration would have preferred that Congress pass the Clear Skies Act, which would replace the mercury requirement and half a dozen other Clean Air Act regulatory programs with a market-based approach to controlling power plant pollution. Under Clear Skies (as under the promulgated mercury and CAIR regulations), there would be national or regional caps on emissions of mercury, sulfur dioxide, and nitrogen oxides; utilities would receive a set number of allowances; and a trading regime would permit compliance through installation of pollution controls or the purchase and use of excess allowances. The CAIR and mercury regulations mimic much of Clear Skies' cap-andtrade approach, but EPA cannot remove existing Clean Air Act requirements without new legislation. Whether to remove (or modify) such requirements as New Source Review, deadlines for nonattainment areas, and provisions dealing with interstate air pollution are among the key issues in the Clear Skies debate. Other issues that Congress and EPA face include the costs and benefits of various levels of control, whether to make the caps more stringent, the availability of control technology, whether to cap emissions of carbon dioxide (CO2) in addition to the other three pollutants, and legal issues related to the mercury standard.
Like Clear Skies, other air issues that Congress faces are holdovers from the 108th Congress, including the regulation of fuel additives used in reformulated gasoline. One particular additive, MTBE, has contaminated groundwater in numerous states, leading 19 of them (notably California and New York) to ban or limit its use. H.R. 6, the energy bill passed by the House on April 21, would ban MTBE nationwide, with several potential exceptions, and would grant MTBE producers a safe harbor from product liability lawsuits. S. 606, approved by a Senate committee, would ban MTBE sooner and would not provide a safe harbor. The bills also differ on how much stimulus to provide for the potential MTBE replacement, ethanol.
A third set of issues seeing early action is whether to modify a requirement that state and local transportation planners demonstrate conformity between their transportation plans and the timely achievement of air quality standards. Failure to demonstrate conformity can lead to a temporary suspension of federal highway funds.
This issue brief will be updated on a regular basis.
