Local communities across the United States are facing daunting new challenges for the improvement of air quality. With the recent adoption by the U.S. Environmental Protection Agency ("EPA") of stringent standards for ozone and particulate matter pollution, localities can expect the imposition of new regulatory requirements that may affect economic development, transportation and land use patters, energy use and industrial activity.
However, the traditional, command-and-control methods of environmental protection may not be sufficient to put achievement of clean air on the horizon. Attaining ambitious national air quality objectives requires the development of a new "instruction booklet" containing innovative regulatory tools and incentives for cleaner air, flexibility for local governments, and increased federal funding for local efforts to improve air quality. This article will look at the critical role of local governments both in implementing Clean Air Act regulations under the new ozone and particulate matter standards, and finding new, innovative ways to improve air quality.
The Targets: National Air Quality Obligations Facing Local Governments
In the summer of 1997, EPA adopted what are perhaps the most challenging air quality objectives since the passage of the Clean Air Act ("CAA") in 1970: a revised national standard for ground-level ozone (smog), and a new national standard for fine particulate matter (soot or "PM-2.5"). EPA estimates that more than 540 localities will fail to achieve the ozone standard, and that more than 280 localities will fail to achieve the PM-2.5 standard.
The Role of Local Governments Under the Clean Air Act
The core provisions of the Act require EPA to establish, and update every five years, uniform National Ambient Air Quality Standards ("NAAQS") that provide for the protection of public health and the environment from six specified air pollutants, including ozone and PM-NAAQS established by EPA are implemented by states, which are required to submit "State Implementation Plans" or "SIPs" for the implementation, maintenance and enforcement of the standards within the states' "air quality control regions," which roughly correspond to counties. SIPs must include emissions limitations, control measures, schedules and timetables for compliance, procedures for monitoring and compiling of data on air quality, and programs for enforcement of the SIP requirements.
Under the Act, local governments can be designated to carry out the implementation of a SIP.1 Hundreds of localities have assumed this role, which can include responsibilities such as development of strategies for maintaining compliance with the NAAQS, enforcement, permitting and inspection of pollution sources, and monitoring of ambient air quality. In addition to their role as regulators, many local governments provide assistance to regulated parties in complying with Clean Air Act requirements, in order to improve environmental quality and promote cost-saving means of compliance for businesses.
The primary objective of Clean Air Act compliance for each locality is to attain and maintain the NAAQS for each pollutant. If the air concentration of a regulated pollutant in any particular region exceeds the national standard, that region may be designated "nonattainment" by EPA. Nonattainment is the status all localities struggle to avoid, with its burdensome local planning requirements, restrictions on new or modified stationary sources (i.e., economic development) in the region unless those sources obtain "new source offsets" from other sources, mandated rates of progress for emissions reductions, requirements for the most stringent pollution control technologies on stationary sources, and rigorous requirements for transportation planning.
EPA's Revised Ozone Standard
The EPA's revised ozone standard is the most immediate and most difficult air quality challenge facing local governments. In July 1997 the EPA announced a new NAAQS for ground-level ozone, which is produced in chemical reactions when its precursors, "volatile organic compounds" (or "VOCs") and oxides of nitrogen (or "NOx"), react in sunlight. The primary sources of NOx are fossil fuel-fired electric utilities (contributing more than 33 percent), vehicles (contributing more than 40 percent), and industrial and other stationary sources of NOx. VOCs are produced primarily by vehicles and industrial emissions. Ozone can cause a variety of significant health effects, including asthma attacks, breathing and respiratory problems, and adverse impacts on the environment, including damage to agricultural crops and forests.
The new ozone standard is roughly one third more stringent
Attaining ambitious national air quality objectives requires the development of a new "instruction booklet" containing innovative regulatory tools and incentives for cleaner air, flexibility for local governments, and increased federal funding for local efforts to improve air quality.
The EPA is now establishing an implementation plan for the new ozone standard that, according to the Agency, will provide flexible, cost-effective means of compliance.2 At the time of this writing, the basic elements of the ozone implementation package have emerged as follows:
Timing. The EPA intends to work with states to designate ozone nonattainment areas under the new standard by the year 2000. These nonattainment areas will have until 2003 to submit SIPs to provide for attainment of the ozone standard. After submission of SIPs, the Act allows up to 10 years from the date of designation for areas to attain the ozone standard, with the possibility of two one-year extensions.
Focus on Regional Controls of Utility and Industrial Emissions. Based on information that ozone pollution is caused not only by local emissions, but by the transport of ozone and its precursors long distances across state lines, EPA has established a regional implementation strategy focusing squarely on controlling NOx emissions from electric utilities and industrial boilers in the eastern United States. EPA believes that this regional strategy will enable most localities to attain the new, eight-hour ozone standard without significant additional efforts.
In October 1997 the EPA issued a proposed rule that would require 22 states and the District of Columbia to revise their SIPs by September 1999 to reduce substantially emissions of NOx. This "OTAG SIP call" establishes NOx budgets for the states that would require NOx reductions of up to 45 percent, primarily through emissions controls on large electric utility and industrial boilers. Controls on these sources are expected to be fairly stringent, calling for utility emissions to be reduced by up to 85 percent from 1995-96 levels by the year 2007, with controls fully in place by the year 2003.
Transitional Nonattainment Classification. Another key element of the ozone control strategy is the creation of a special "transitional" classification of nonattainment that may avoid some of the most burdensome aspects of nonattainment. Transitional status will be available to any area that attains the one-hour standard by 2000, but does not meet the eight-hour standard. In order to be classified transitional, an area must be located in a state subject to the OTAG SIP call that submits its required SIP revision by 2000.
For transitional areas, EPA is considering measures to lessen the burden on new or modified sources in obtaining "new source offsets," by creating state-based pools of offsets that will be available for purchase by these new sources, thereby removing an obstacle to urban economic development. Transitional status may also reduce the level of pollution control technology required for stationary sources in such areas.
Market Trading, Incentives for Energy Efficiency and Clean Air Investment Funds. Perhaps the most promising aspects of EPA's ozone implementation strategy are proposals to foster innovative compliance measures by regulated entities and local governments. Foremost is the establishment of a market-based, cap-and-trade system for the reduction of NOx emissions by utilities and industry. A NOx trading program would set an overall regional cap on NOx emissions in the eastern United States, far below the current level of emissions. Each source covered by the program would be issued "NOx credits" for their permitted level of pollution and, if unable to reach that level, a source could buy or trade on the market for additional credits. Likewise, a source that can achieve lower
The nation's air quality policies must seek to foster both short and long-term changes in the way we build and grow our communities, how we use and save energy, and how we prevent pollution in our industrial processes.
EPA is also considering a program that would award these valuable NOx credits (expected to be worth between $700 and $5,000 per credit) to entities that create emissions reductions through energy efficiency projects. Local governments may be the ideal entities to utilize these efficiency credits for efforts such as the retrofitting of public and private buildings or the promotion of household reductions in energy.
A third idea is Clean Air Investment Funds. EPA is contemplating a program that would allow regulated sources whose costs for reducing NOx emissions exceed $10,000 per ton to avoid compliance by paying the $10,000 into Funds that would be used to finance alternative compliance methods. At the local level, Clean Air Investment Funds could potentially redirect resources to an underfunded municipal program to achieve emissions reductions through, for example, telecommuting and alternative transportation measures.
EPA's New Standards for Fine Particulate Matter
EPA also promulgated in 1997 a new NAAQS for fine particulate matter measuring 2.5 microns in diameter and smaller ("PM-2.5"). Fine particles are emitted from activities such as utility and industrial combustion and vehicle exhaust, and include gases such as sulfur dioxide, NOx and VOCs. Adverse health effects of PM-2.5 include premature death and hospital visits associated with cardiopulmonary disease, increased respiratory diseases such as asthma, and damage to the lung and respiratory tract.
EPA established two PM-2.5 standards set at 15 Tg/m3 on an annual average basis, and 65 T/m3 on a 24-hour average. EPA is also retaining the current annual standard for course particulate matter, or "PM-10," which is set at 50 T/m3, and adjusting the form of the current 24-hour standard for PM-10 of 150 T/m3.
Localities can expect that the implementation of controls for the PM-2.5 standards will be deferred for many years. Under EPA,s implementation plans, no regulatory action will be taken until at least 2002, after the completion of five years of research and review of the (currently scanty) scientific data on the health affects of fine particulates. Another preliminary priority is the establishment of a comprehensive, national network of 1,500 monitors for the measurement of PM-2.5 levels throughout the United States. Because reliable monitoring data will not be available until between 2001 and 2004, EPA nonattainment designations for PM-2.5 will not occur until 2002-2005. Compliance in these nonattainment areas will not be required until ten years after designation, with the potential for two one-year extensions.
Giving Localities the Right Tools for the Job
Command-and-control regulations under the Clean Air Act are an essential foundation for achieving air quality goals. However, achieving ambitious new national air standards will be difficult and costly unless the traditional tools are complemented with new regulatory incentives that foster local innovation. The nation's air quality policies must therefore seek to foster both short- and long-term changes in the way we build and grow our communities, how we use and save energy, and how we prevent pollution in our industrial processes. These tools of sustainable development must be spurred by creative federal policies and enhanced federal funding, yet built from the ground up by local communities.
New regulatory tools and incentives for clean air should include market trading systems like EPA's proposed NOx cap-and-trade program that reward those who clean air fastest and with the least cost. Such trading programs should be broadened to the greatest extent possible to foster activities by local governments and the regulated community, including energy efficiency projects, the development of clean renewable energy sources, and even municipal efforts to redevelop abandoned urban brownfields in order to reduce urban sprawl and its associated impacts on air quality and the environment.
For example, the State of Oregon has created an "Urban Growth Boundary" ("UGB") that, by limiting development outside the City of Portland, 23 other cities and the urban portions of three counties, fosters efficient use of existing land while preserving rural land and preventing urban sprawl in a fast-growing, economically vibrant region. The UGB is credited with improving the region's air quality by reducing automobile congestion and its resulting air pollution by 11 percent. According to Metro, the elected regional government that maintains the UGB, reductions in NOx emissions associated with the UGB played a significant role in Portland's recent attainment of the current ozone NAAQS. Other research has shown that urban infill development reduces mobile source air emissions when compared to exurban, unmanaged development.3 Given these air quality benefits from smart growth and land use projects, federal Clean Air Act policies should foster these programs by allowing such efforts to be credited against the obligations contained in State Implementation Policies, either by reducing other command-and-control requirements or by granting additional time and flexibility for local efforts to attain and maintain federal air quality standards.
Federal clean air funding should also promote the development and use of innovative environmental projects at the local level. For example, tools like Clean Air Investment Funds should be available for municipal efforts to put innovative emissions-reducing technologies into use. Further, EPA should consider encouraging a greater number of industries to participate in providing moneys to such funds by allowing regulated corporations to "opt out" of standard NAAQS compliance requirements in exchange for entering partnerships with local governments to fund environmental projects that achieve equivalent and verifiable emissions reductions. These Funds could be used, for example, to support alternative-fueled municipal vehicle fleets, or projects like the City of Chattanooga "SmartPark" in Tennessee, where downtown industrial and commercial facilities are attempting to minimize emissions through the use of closed-loop technologies and processes.
EPA's charge should be to create "funded un-mandates," so to speak, for local government activities that can produce sustained reductions in emissions and improved air quality. EPA might also consider the establishment of "Clean Air Ombudsmen" at the regional level who would be devoted to providing support to local communities in the attainment of national standards and the establishment of innovative air improvement programs.
However, such ideas will be only as good as the local governments that step forward and put them to use. The establishment of new tools for local air improvements cannot be created out of thin air, but require a constituency of local government officials who are willing to utilize these tools and to call upon federal and state governments for their implementation. Local governments that wish to avoid the most burdensome aspects of attaining NAAQS need to advocate for new regulatory policies for clean air compliance, and must show a willingness to experiment at the local level. In this way, local communities can work with EPA to create a new instruction booklet and build a clean air partnership from the ground up.
Notes
1. See CAA, 42 U.S.C. § 7410(a)(2)(E) (1997).
2. See, e.g., Directive from President Clinton to EPA Administrator, 62 Fed. Reg. 38421 (1997).
3. See, e.g., 1000 Friends of Oregon, Making the Land Use, Transportation, Air Quality Connection, Report Summary, vol. 7 at p. 15 1997).