POWER June 2016 - 66

COMMENTARY
Richard L. Revesz
Jack Lienke
Learning from the Clean
Air Act's Tragic Flaw
" W
hy are you picking on the Clean Air Act? " That's a
question we've heard more than once while traveling
the country to talk about our new book, Struggling
for Air: Power Plants and the " War on Coal. "
The book focuses on what we see as the " tragic flaw " of
the Clean Air Act of 1970 (CAA): its exemption of existing
industrial facilities-most notably, coal-fired power plants-
from the Environmental Protection Agency's (EPA's) nationwide
performance standards for soot- and smog-forming pollutants.
Starting in 1971, new plants had to reduce their sulfur dioxide
emissions by either installing multimillion-dollar pollution
" scrubbers " or burning pricey low-sulfur coal. In 1978, scrubbers
became mandatory regardless of the type of fuel burned,
as did additional technology for controlling nitrogen oxides
emissions. But existing plants could continue polluting in unlimited
amounts. This " grandfathering " gave utilities a perverse
incentive to keep old, dirty facilities running decades
longer than they otherwise would have, stymieing state efforts
to meet the CAA's air quality goals.
Even so, the CAA has managed to do an enormous amount of
good over the years. Between 1970 and 2013, emissions of six
of the most common pollutants fell by more than two-thirds,
even as GDP tripled and the U.S. population grew by 50%. So
why, some wonder, are we harping on a shortcoming rather than
celebrating the act's substantial achievements?
Origins of Recent Regulations
One reason is that understanding the CAA-both its tremendous
ambition and the flaw that undermined that ambition-is key to
understanding today's environmental policy disputes.
Even if you're not a watcher of Fox News or a reader of conservative
blogs, you've probably heard accusations that President
Obama is waging a " war on coal. " The basic narrative
is that Obama took office in 2009 and, motivated by little
more than ideological fervor, immediately set about imposing
all sorts of onerous and unprecedented restrictions on the use
of coal.
Undoubtedly, recent EPA initiatives like the Cross-State Air
Pollution Rule, the Mercury and Air Toxics Standards (MATS), and
the Clean Power Plan make life harder for coal-fired power plants.
But these rules aren't the malicious invention of White House officials
who just " don't like " coal, as Senate Majority Leader Mitch
McConnell has suggested. Instead, they are the culmination of
a multi-decade struggle to reduce pollution from grandfathered
facilities. Indeed, each was, to some extent, set in motion long
before the current administration took office.
To be clear, grandfathering is still built into the CAA for
certain pollutants. The EPA remains unable to set nationwide
performance standards for old plants' emissions of soot- and
64
smog-forming sulfur dioxide and nitrogen oxides. But the agency
can do other things.
For one, it can regulate old plants' soot- and smog-forming
emissions if they contribute to air quality problems in another
state. A " Good Neighbor Provision " allowing the EPA to regulate
this sort of interstate pollution was added to the CAA in 1977.
But, for a variety of reasons, the agency didn't make use of it
until 1996, when the Clinton administration issued a rule known
as the NOx
followed up with the more stringent Clean Air Interstate Rule.
And after the D.C. Circuit Court of Appeals struck down that
regulation in 2008, it was left to the Obama administration to
craft a suitable replacement, the Cross-State Air Pollution Rule,
which was upheld by the Supreme Court in 2014.
The EPA can also regulate old plants' emissions of what the
CAA calls " hazardous " pollutants. This category includes heavy
metals like mercury, which, among other things, contributes to
neurological damage in fetuses and small children. The EPA has
had a version of this power since 1970, but, as with the Good
Neighbor Provision, it took the agency a very long time to make
use of its authority. In 1990, under the George H.W. Bush administration,
Congress added new deadlines to prod the agency into
action. And that's what led-two decades and several lawsuits
later-to the Obama administration's MATS.
Finally, the EPA can regulate power plants' emissions of greenhouse
gases directly. Indeed, it was all but forced to do so by
the Supreme Court's 2007 ruling in Massachusetts v. EPA. Eight
years later, that responsibility gave rise to the agency's Clean
Power Plan.
How to Deal with Your Grandfather
In addition to providing useful historical context for some of
today's most controversial regulations, our book also serves as
a cautionary tale for future policymakers. While most of the nation's
pre-1970 coal plants are expected to retire, at long last,
within the next several years, the issue of grandfathering will
continue to arise in other regulatory contexts. We don't suggest
that older sources should never get any form of " transition
relief " when new rules are imposed. It is, after all, generally
more burdensome to retrofit an existing facility to accommodate
pollution-control technology than to incorporate such technology
into a newly built facility. But legislators and regulators
must think very carefully about the appropriate scope and duration
of that relief.
As the old saying goes, those who don't learn from history are
doomed to repeat it. ■
-Richard L. Revesz is the Lawrence King Professor of Law and
Dean Emeritus at New York University School of Law, where Jack
Lienke is a Senior Attorney at the Institute for Policy Integrity.
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