Opposing Clean Air Protections, Industry Lobbyists Misrepresent When Updated Standards Must Be Met

NRDC: (John Walke)

Industry lobbyists are cynically exploiting anxieties over current economic conditions to oppose Americans’ right to be protected against unhealthy smog pollution. Because they don’t have the facts or science or law on their side, these lobbyists have been reduced to misrepresenting the way the Clean Air Act works and its extended timelines for reducing pollution.

The truth is that polluting industries will have many years to reduce harmful smog pollution, well past the current period of economic challenge. Strengthening smog standards will benefit Americans and the economy, by saving thousands of lives, avoiding hundreds of thousands of illnesses and countless days missed from work and school.

Lobbyists for polluting industries are feverishly opposing stronger smog safeguards for Americans. They argue that the Environmental Protection Agency should delay stronger protections because they say our economy can’t handle it right now.

For example, Business Roundtable President John Engler protests that “[e]stablishing these new ozone standards would be tantamount to putting ‘not open for business’ signs in counties across the country at precisely the wrong moment, when unemployment is high and on the rise.”

Energy industry lobbyists are making apocalyptic declarations that “[m]any states and metropolitan areas will face effective bans on economic growth and job creation at the very time they need it the most.”

An industry lobbying coalition letter urges the president to block EPA from doing its job to set protective smog standards, and the letter begins with the ominous words “In light of our fragile economy….”

The italicized language highlights what these alarmist statements share in common — the implication that companies cannot comply with stronger smog standards in the near term due to the current state of the economy. Industry lobbyists are spinning the horror story that the minute EPA strengthens protections against smog pollution, industries immediately will incur costs and economic growth and job creation will be stymied.

That is wildly wrong. In reality, implementing revised smog standards under the plain terms of the Clean Air Act takes many years. The process provides states and companies with a great deal of time and flexibility to meet those standards, using cost-effective tools to cut pollution.

Critics that suggest otherwise are being deceptive by omission.

EPA has proposed to strengthen the smog standards to a level consistent with the unanimous recommendations of its science advisors, following EPA Administrator Lisa Jackson’s recognition [pdf] that the standards set by the Bush administration in 2008 are “not legally defensible given the scientific evidence.” Much as industry lobbyists want her to break the law by maintaining unprotective Bush standards, she is rejecting those entreaties.

Once EPA adopts more protective smog standards, it is then up to states to decide how best to ensure that air quality within the state meets those standards. State officials evaluate air quality data and make recommendations to EPA about which areas within a state are in “attainment” or “nonattainment” with the smog standard.

Following adoption of a revised smog standard, states have at least six months and up to a year to make preliminary recommendations to EPA concerning which areas should be designated in attainment or nonattainment with the revised standards. EPA then has up to two years from the date new standards are promulgated to decide how to designate areas, based on the states’ input. If there are data problems or questions about how best to designate a certain area, the Clean Air Act provides EPA the possibility of an additional one-year extension (CAA §107(d)(1)(B)(i)).

Assuming that EPA announces revised smog standards by the end of August, this would mean that EPA could have until as long as August of 2013 (or 2014 if justified) to take even just the initial step of making so-called “nonattainment designations.” It must be noted too that, historically, EPA has been months or even years behind schedule in making these designations.

After smog nonattainment areas are identified through this designation process, states then must submit to EPA suggested plans (called state implementation plans or “SIPs”) describing the pollution control measures states will require to reduce smog pollution and meet the revised standards. For most measures, states have three years from the date a revised smog standard is adopted to suggest plans to EPA, giving states until August of 2014.

EPA then proposes to approve, conditionally approve, or disapprove a state’s suggested plan, soliciting public comment, followed by final action on those plans. The law allows up to eighteen months for this process, although again EPA often takes substantially more time. The Clean Air Act does not require regulated industries to comply with the control measures contained in state plans until EPA approves these plans. This might occur as early as February 2016 but if history is any guide, it probably would be later.

Deadlines for designated nonattainment areas to meet the revised smog standards then depend on how dirty the air is in those areas. Congress gave the dirtiest areas of the country the most time to meet air pollution standards, out of recognition that more time was needed in these areas to get the job done.

Assuming EPA adopts more protective smog standards this month, states then would be given anywhere from 5 to 22 years from now to meet the new standards, depending upon the severity of air pollution in an area. See here (CAA §181). Areas like Los Angeles and Houston would be given the most time, while marginal areas designated nonattainment for the first time could be given 5 years.

This means the earliest areas would need to meet revised smog standards would be August, 2016, and the latest would be August, 2033. And the law allows even those earlier deadlines to be extended if the standards are not attained on time.

Accordingly, even if industry’s alarmist predictions about compliance costs were right — and they are not, updated smog standards would place no burden on today’s fragile economy. Instead, strengthening smog standards will lay out a roadmap that, over the next few years and decades, will guide our country toward cleaner air and healthier families.

The cynical industry campaign to exploit anxieties over current economic conditions ignores all this. But that deception does not change the extended timelines allowed by the law. Polluting industries will have years before compliance costs must be incurred and smog standards must be attained.