Order Code IB10065
Issue Brief for Congress
Received through the CRS Web
Clean Air Act Issues in the 107th Congress
Updated June 3, 2002
James E. McCarthy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Issues in the 107th Congress
Energy and Air Quality
California Issues
New Source Review and Multi-Pollutant Legislation
MTBE and Reformulated Gasoline
Implementation of the National Ambient Air Quality Standards
LEGISLATION
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
CRS Reports
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Clean Air Act Issues in the 107th Congress
SUMMARY
In the 107th Congress, the most
A third set of issues that now appear
prominent air quality issue has been whether
unlikely to be addressed in this Congress
state and federal regulations designed to
concerns congressional reaction to a February
protect air quality are having a negative
27, 2001 Supreme Court decision. In Whitman
impact on energy production, and, if so,
v. American Trucking Associations, the Court
whether legislation should be enacted to
upheld EPA’s authority to set National
reform such regulations. The early discussion
Ambient Air Quality Standards without
focused primarily on California, but with the
considering the cost of compliance. EPA had
release of the Administration’s energy policy
revised (and strengthened) the standards for
recommendations in May 2001 and
ozone and particulates in 1997, but they were
subsequent congressional action, attention
immediately challenged in the courts, delaying
shifted to issues more national in scope.
implementation. In the decision, the Supreme
Among these are whether the Clean Air Act’s
Court ruled unanimously for EPA on two
New Source Review requirements have been
major issues, but required that the Agency
enforced consistently, whether they have
revise its plan for implementation. This may
prevented power plants from making
delay implementation of the new standards for
improvements that would expand power
some time. Whether Congress should play a
output, and whether Congress should enact
role in revising the requirements governing
“multi-pollutant” legislation for power plants
implementation of the ozone standard, and if
in order to provide certainty regarding future
so how, could be the subject of hearings and,
regulatory requirements.
potentially, legislation.
A second set of issues Congress faces
Congress last enacted major amendments
concerns regulation of the gasoline additive
to the Clean Air Act in 1990, and EPA is still
MTBE. MTBE is used to meet Clean Air Act
implementing numerous provisions of those
requirements that gasoline sold in the nation’s
amendments. Recent efforts include
worst ozone nonattainment areas contain at
development of tighter emission standards for
least 2% oxygen, but the additive has been
nonroad engines and for diesel engines and
implicated in numerous incidents of ground
fuels. Review of state implementation plans
water contamination. Since mid-1999, bills to
for attaining ozone air quality standards is
diminish the use of MTBE have been near the
another ongoing agency activity. EPA
top of the clean air agenda. On September 25,
decisions regarding implementation of these
2001, the Senate Environment and Public
and other programs mandated by the Clean
Works Committee approved one of these bills,
Air Act will provide opportunities for
S. 950, to ban MTBE use, waive the oxygen
oversight and possible legislation.
requirement, and provide additional funding
for ground water cleanup (S.Rept. 107-131).
Note: This Issue Brief does not discuss the
Similar provisions, plus requirements that
greenhouse effect or most issues related to
motor vehicle fuel contain ethanol or other
global climate change. For a discussion of
renewable fuels are contained in the Senate
those issues, see CRS Issue Brief IB89005,
version of H.R. 4, the comprehensive energy
Global Climate Change, updated regularly.
bill passed by the Senate, April 25, 2002.
Congressional Research Service ˜ The Library of Congress
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MOST RECENT DEVELOPMENTS
On April 25, 2002, the Senate passed its version of H.R. 4, a comprehensive energy bill.
The bill contains provisions that would ban use of the gasoline additive MTBE, eliminate the
requirement to use MTBE or other oxygenates in reformulated gasoline, authorize additional
funding for cleanup of ground water contaminated by the substance, and require that motor
vehicle fuel contain ethanol or other renewable fuels. The House passed its version of H.R.
4, on August 2, 2001; the House bill did not contain provisions modifying the Clean Air Act
or requiring the use of ethanol.
On February 14, 2002, the Administration released its “Clear Skies” initiative, which
calls for new “multi-pollutant” legislation to control emissions of sulfur dioxide, nitrogen
oxides, and mercury from power plants. EPA Administrator Whitman and others in the
Administration have spoken frequently since then about the initiative, but as of early June,
legislative language had not been sent to the Congress.
The Administration’s energy plan, released in May 2001, directed EPA and the Justice
Department to review the impact on utilities and refineries of the Clean Air Act’s New
Source Review requirements and recent enforcement actions taken under this authority. The
Justice Department review was completed and released January 15, 2002; it concluded that
EPA’s enforcement actions “are supported by a reasonable basis in law and fact.” EPA’s
review of the program had not been released as of early June.
BACKGROUND AND ANALYSIS
The Clean Air Act requires the Environmental Protection Agency (EPA) to establish
minimum national standards for air quality, and assigns primary responsibility to the states
to assure compliance. Areas not meeting the standards, referred to as nonattainment areas,
are required to implement specified air pollution control measures. The Act requires federal
emission standards for autos and other mobile sources of air pollution, for sources of 188
hazardous air pollutants, and for sources of acid rain. It establishes a comprehensive
state-run permit system for all major sources of air pollution. It also addresses the prevention
of pollution in areas with clean air, as well as protection of the stratospheric ozone layer.
The last comprehensive amendments to the Act, enacted November 15, 1990 (P.L.
101-549), included the program to control acid rain, new standards for emissions of
hazardous air pollutants, new requirements for motor vehicles and fuels, stringent new
requirements for nonattainment areas, and the comprehensive permit program.
Many of these provisions (notably the acid rain and air toxics provisions, and some of
the requirements for autos and fuels) were strenuously debated, but most have not been
subject to controversy since enactment. The new provisions on acid rain, air toxics, and
automobiles have generally been implemented on schedule, in many cases at less cost than
anticipated. There have also been noticeable improvements in air quality in recent years:
of 98 metropolitan areas not attaining the 1-hour ozone standard in 1990, about half now do
so. Even greater progress has been achieved with carbon monoxide: 36 of the 42 areas not
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in attainment in 1990 now meet the standard. Nevertheless, major controversies remain
concerning implementation of the Act.
Issues in the 107th Congress
At least three sets of air quality issues are or could be on the agenda in the 107th
Congress: 1) whether Congress should address the connections between energy production
and air quality regulation; 2) whether Congress should modify Clean Air Act requirements
that have led to the use of a substance called MTBE in gasoline, in response to a growing
number of ground water contamination incidents involving the substance; and 3) whether
Congress should respond to a Supreme Court decision handed down February 27, 2001,
regarding the setting of air quality standards.
Energy and Air Quality
In the early months of the 107th Congress, the most prominent air quality issue was
whether state and federal regulations designed to protect air quality had a negative impact
on energy production, and, if so, whether legislation should be enacted to temporarily or
permanently relax such regulations.
California Issues. The early discussion focused primarily on California. Although
California arguably has the strictest air emission standards in the nation, most experts in the
power industry and among state and local regulators have concluded that these regulations
played no role in creating California’s power shortage. Other factors, such as the
uncertainties and disincentives caused by California’s deregulation of electric utilities, appear
to have been the dominant factors in discouraging investment in new generation facilities.
As California’s situation worsened in the winter of 2001, however, the Bush
Administration and others issued statements implying that air regulations may have
contributed to the problem by inhibiting short term measures to respond to it once it existed.
The significance of this contribution can be debated, but most experts agreed that
modifications to local air pollution regulations were among the steps that could help
California address shortages of electricity in the short term. In fact, anticipating such
concerns, federal and state air pollution officials, beginning in the summer of 2000, took
steps to relax controls that might have prevented the use of emergency generators to cope
with power shortages, and that increased the cost of operating power plants by requiring
scarce and costly emissions “allowances” under a California program called RECLAIM.
These changes to the regulatory structure, implemented in 2001, appear to have had marginal
impacts, slightly lowering the cost of operating electric generators in California, and
providing some additional power from emergency sources.
Most discussion about easing emission regulations focused on the controls on nitrogen
oxides (NOx) emitted by gas-fired generators. (NOx is a contributor to smog.) Legislation
designed to address the California electricity crisis – H.R. 1647, introduced by
Representative Barton on May 1, 2001 – included two provisions designed to waive NOx
emission requirements for power plants. The first would have waived the requirements for
new plants for up to one year. The second would have waived NOx emission limits for both
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existing and new gas-fired power plants during electricity emergencies, for a period of up to
6 months.
Opponents of the first of these provisions argued that it would do little to increase
electricity supplies, but would increase emissions in areas already exceeding air quality
standards. The provision was removed from the Chairman’s mark before the bill was
approved by the Energy and Commerce Committee’s Energy and Air Quality Subcommittee
on May 10, 2001. The second provision, which remained in the bill, would appear to have
had limited applicability: it specified that the waiver “shall not authorize any emission
source to disconnect or cease using any emission control device,” and further stipulated that
a state plan incorporating such waiver provisions may be approved only if the EPA
Administrator determines that it “will not increase the net emissions of any air pollutant in
any affected region.” Further action on the bill was scheduled May 25, 2001, but called off.
On June 6, Energy and Commerce Committee Chairman Tauzin announced, after protracted
negotiations, that further efforts to enact the bill would be suspended indefinitely.
New Source Review and Multi-Pollutant Legislation. With the release of Vice
President Cheney’s energy policy recommendations in mid-May 2001 and the easing of the
shortage of electricity in California over the summer, the focus of discussion on air quality
and energy issues shifted to issues more national in scope. The National Energy Policy
(NEP) generally ignored California-specific issues. Instead, it took a longer and broader
view, addressing issues that affect power production and energy supply nationally. Two of
its most important recommendations addressed air issues: the policy recommended a review
of the air emission regulatory process known as “New Source Review”; simultaneously, it
proposed to strengthen emission controls on power plants through new legislation (referred
to as “multi-pollutant legislation”). The net effect of these steps will be difficult to gauge
until the plan’s general recommendations are embodied in the more specific language of
regulatory proposals or legislation. The Administration announced some details in its “Clear
Skies” proposal on February 14, 2002, but it has not yet sent legislative language to
Congress.
New Source Review. In an apparent effort to ease regulatory burdens on power plants
and refineries and provide additional incentives to expand output at existing facilities, the
NEP recommended a review of the Clean Air Act’s New Source Review (NSR)
requirements, with the EPA Administrator to report to the President within 90 days regarding
the impact of NSR regulations on investment in new utility and refinery generation capacity,
energy efficiency, and environmental protection. (Completion of this review was
subsequently delayed; it had not been released more than a year later.) The NEP also
recommended that the Attorney General review existing NSR enforcement actions to ensure
“that they are consistent with the Clean Air Act and its regulations.” This review was
completed on January 15, 2002, with the Justice Department concluding that EPA
“reasonably may conclude that the enforcement actions are consistent with the Clean Air Act
and its regulations.”
The controversy over the NSR process stems from EPA’s application of New Source
Performance Standards to existing stationary sources of air pollution that have been
modified. In Section 111, the Clean Air Act states that new sources (subject to NSR) include
modifications of existing sources as well as plants that are totally new; industry has
generally avoided the NSR process, however, by claiming that changes to existing sources
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were “routine maintenance” rather than modifications. In the 1990s, EPA began reviewing
records of electric utilities, petroleum refineries, and other industries to determine whether
the changes were routine or not. As a result of these reviews, since late 1999, EPA and the
Department of Justice have filed suit against 14 electric utilities, claiming that they made
major modifications to 53 units in 14 states, extending their lives and increasing their electric
generating capacity without undergoing required New Source Reviews and without installing
best available pollution controls.
Two of the 14 utilities charged with NSR violations (Tampa Electric and PSEG of New
Jersey) have settled with EPA, agreeing to spend more than $1.3 billion over the next decade
on pollution controls or fuel switching in order to reduce emissions at their affected units.
Two other utilities (Virginia Power and Cinergy) reached agreement in principle over a year
and a half ago to spend more than $1 billion each to resolve NSR violations, but final
settlement negotiations have not been concluded. A fifth utility, the Tennessee Valley
Authority, has announced plans to spend $1.5 billion to reduce emissions at four of its plants,
although not as part of a settlement agreement. Between July 25, 2000 and December 20,
2001, the Agency also reached agreement with nine petroleum refiners representing more
than 30% of industry capacity. The refiners agreed to settle potential charges of NSR
violations by paying fines and installing equipment to eliminate 153,000 tons of pollution.
Companies that have not settled with EPA and other critics of the Agency’s actions
claim that EPA is reinventing the rules, and, in the process, providing disincentives for
power producers and refineries to expand output. Critics include the National Coal Council,
an advisory committee to the Secretary of Energy composed largely of industry executives.
It stated in a May 3, 2001 report that existing coal-fired power plants could make technical
improvements to produce an additional 40,000 megawatts of electricity if the EPA would
loosen current NSR restrictions.
Because the National Energy Policy did not make specific recommendations, but simply
called for a review of current regulations and enforcement actions, it is difficult to conclude
what effect these reviews will have. Environmental interest groups and analysts, however,
including sources within EPA, have concluded that the Administration intends to implement
a major roll-back of NSR requirements, which could block efforts to reduce emissions. (For
additional discussion of NSR issues, see CRS Report RL30432, Air Quality and Electricity:
Enforcing New Source Review.) In fact, argue critics, the prospect of an NSR rollback has
caused utilities to withdraw from settlement negotiations over the pending lawsuits, delaying
emission reductions that could have been achieved in the near future.
Multi-Pollutant Legislation. Simultaneous with its proposal for review of the NSR
requirements, the National Energy Policy proposed to strengthen emission controls on sulfur
dioxide, nitrogen oxides, and mercury from power plants through new legislation.
EPA has taken numerous regulatory steps (in addition to the NSR enforcement actions)
to reduce emissions of these pollutants from coal-fired electric power plants, over the past
several years. The first of these steps, the regulation of sulfur dioxide and some nitrogen
oxide emissions to reduce acid precipitation, which was required under Title IV of the Clean
Air Act, had statutory deadlines in 1995 and 2000. Other regulatory actions include the
Ozone Transport Rule (or “NOx SIP call”) requiring power plants in 21 eastern states and
the District of Columbia to reduce emissions of nitrogen oxides during the summer ozone
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season beginning May 31, 2004; various state actions to control emissions of NOx, sulfur
dioxide, mercury, and in at least one case carbon dioxide; and an EPA decision announced
in December 2000 to go forward with regulation of mercury from electric utilities. The
mercury regulations are expected to be proposed in 2003, with an effective date of 2007 or
2008. Proposals to control carbon dioxide emissions from power plants, to address global
climate change, have also been advanced, with several bills (H.R. 1256 and S. 556 in the
107th Congress, among them) having been introduced. (For a comparison of the these and
other multi-pollutant bills, see CRS Report RL31326, Air Quality: Multi-Pollutant
Legislation and the Administration’s Proposal.)
The number and variety of prospective regulations on power plant emissions has
suggested to many in industry, Congress, and the Administration that the time may be ripe
for comprehensive, multi-pollutant legislation to regulate power plant emissions. The key
questions are how stringent the controls will be, and whether carbon dioxide (CO will be
2)
among the emissions subject to controls.
Regarding the first of these issues, seven bills that had been introduced as of April 2002
would require reduction of NOx emissions to 1.5 or 1.6 million tons (a nearly 80% reduction
from 1998 levels) and reduction of sulfur dioxide emissions to 2.23 - 4.45 million tons (a
reduction of roughly 65% - 80% versus 1998). Regarding mercury, two of the bills require
EPA to determine the level of reductions, while the other three require about a 90% reduction
from current levels of emissions (from 48 to 4.5 tons). In general, these reductions would
take place by 2005 or 2007, depending on the bill. (For additional information, see CRS
Report RL31326, Air Quality: Multi-Pollutant Legislation and the Administration’s
Proposal.)
The Administration has not yet submitted legislative language regarding its proposal,
but its Clear Skies initiative envisions less stringent standards phased in over a longer period
of time. For NOx, the Administration would reduce emissions to 1.7 million tons by 2018,
with an intermediate limit of 2.1 million tons in 2008. For sulfur dioxide, the limit would
be 3.0 million tons in 2018, with an intermediate limit of 4.5 million tons in 2008. For
mercury, the limit would be 26 tons in 2010, declining to 15 tons in 2018.
The Administration opposes controls on CO , viewing them as a step towards
2
implementing the Kyoto Protocol to the United Nations Framework Convention on Climate
Change, which it opposes. Its critics, however – and even some of its supporters – note that
the goal of providing regulatory certainty to power companies may not be met without the
inclusion of CO controls.
2
Whatever the merits of CO regulation, some form of multi-pollutant legislation is
2
expected to be a relatively high priority over the next few years. Hearings on multi-pollutant
legislation were held November 1 and 15, 2001 and January 29, 2002, by the Senate
Environment and Public Works Committee. Markup of legislation has been repeatedly
delayed, however. (For additional information on regulation of electric utility emissions, see
CRS Report RS20553, Air Quality and Electricity: Initiatives to Increase Pollution
Controls.)
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MTBE and Reformulated Gasoline
Another set of issues already on the agenda of the 107th Congress is whether Congress
should modify the requirements of the Clean Air Act’s reformulated gasoline program or
regulate use of the substance MTBE in gasoline in response to incidents of ground water
contamination by the substance. Under the Clean Air Act Amendments of 1990, numerous
areas with poor air quality are required to add chemicals called “oxygenates” to gasoline as
a means of improving combustion and reducing emissions. The Act has two programs that
require the use of oxygenates; the more significant of the two is the reformulated gasoline
(RFG) program, which took effect January 1, 1995. Under the RFG program, areas with
“severe” or “extreme” ozone pollution (82 counties with a combined population of 55
million) must use reformulated gas; areas with less severe ozone pollution may opt into the
program as well, and many have. In all, portions of 17 states and the District of Columbia
use RFG, and a little more than 30% of the gasoline sold in the United States is RFG.
The law requires that RFG contain at least 2% oxygen by weight. Refiners can meet
this requirement by adding a number of ethers or alcohols, any of which contains oxygen and
other elements. By far the most commonly used oxygenate is MTBE. In 1999, 87% of RFG
contained MTBE. MTBE has also been used since the late 1970s in non-reformulated
gasoline, as an octane enhancer, at lower concentrations. As a result, gasoline with MTBE
has been used virtually everywhere in the United States, whether or not an area has been
subject to RFG requirements.
State and local environmental agencies and EPA attribute marked improvements in air
quality to the use of oxygenated and reformulated gasoline. The improvements in air quality
have not come without controversy. In Alaska and Wisconsin, residents complained of a
wide array of effects, including headaches, dizziness, nausea, sore eyes, and respiratory
irritation, from exposure to gasoline/MTBE exhaust, before refiners switched to alternative
gasoline formulations using ethanol. MTBE from a number of sources, including leaking
underground storage tanks, has also been linked to contamination of drinking water supplies.
Concerns over MTBE have focused on California for much of the past 5 years.
California has the most extensive reformulated gasoline requirements in the country, with
state requirements separate and in addition to the federal. In addition, it has experienced the
most significant contamination of drinking water by MTBE. The incidents of drinking water
contamination led the state legislature in October 1997 to enact legislation to require state
standards for MTBE in drinking water and to require the University of California (UC) to
conduct a study of the health and environmental effects of MTBE. The UC report, issued
in November 1998, recommended a gradual phase-out of MTBE use in the state. Based on
the report and on subsequent public hearings, on March 25, 1999, Governor Davis of
California signed an Executive Order to require a phase-out of MTBE use in the state by
December 31, 2002 (recently amended to December 31, 2003), and requested a waiver of
federal requirements to use oxygenates in reformulated gasoline. (Fourteen other states –
Arizona, Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan,
Minnesota, Nebraska, New York, South Dakota, and Washington – have subsequently passed
legislation to limit or phase out MTBE.)
The California request for a waiver of the oxygen requirement resulted in two years of
negotiation between EPA and the state before the Agency finally denied California’s request,
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on June 12, 2001. Without a waiver, gasoline sold in ozone nonattainment areas in the state
will be required to contain another oxygenate (most likely, ethanol) when the MTBE ban
takes effect, unless Congress acts to change the oxygenate requirement. Legislation to waive
the oxygen requirement for California (the Cox amendment to H.R. 4) was rejected by the
House, 300-125, August 1, 2001, during debate on the House version of comprehensive
energy legislation.
Besides the Cox amendment, many proposals to change the oxygen requirement have
been advanced, and Congress has considered several bills over the last three years. On
August 4, 1999, the Senate adopted by voice vote Senator Boxer’s amendment to the
FY2000 Agriculture appropriations bill (S. 1233) expressing the sense of the Senate that use
of MTBE should be phased out. Since then, congressional committees have conducted
hearings and marked up MTBE legislation several times. The Senate passed MTBE
provisions in its version of comprehensive energy legislation, H.R. 4, April 25, 2002. The
bill now awaits a conference with the House, with the prospects of enactment uncertain.
The principal issues for Congress are whether Clean Air Act provisions concerning
oxygenate use in reformulated gasoline should be waived to allow refiners to discontinue
or lessen their use of MTBE without substituting another oxygenate and whether stronger
steps, such as a ban on MTBE use, should be considered.
Support for eliminating the oxygen requirement on a nationwide basis now is
widespread among environmental groups, the petroleum industry, and states, but a potential
obstacle to enacting legislation lies among agricultural interests. About 6% of the nation’s
corn crop is used to produce a competing oxygenate, ethanol. If MTBE use is reduced or
phased out, but the oxygen requirement remains in effect, ethanol use would likely soar,
increasing demand for corn. Conversely, if the oxygen requirement is waived by EPA or
legislation, not only would MTBE use decline, but so, likely, would demand for ethanol.
Thus, Members of Congress and Governors from corn-growing states have taken a keen
interest in MTBE legislation. Unless their interests are addressed, they may pose a potent
obstacle to its passage.
In this Congress, S. 950, which would ban the use of MTBE while allowing Governors
to waive the RFG program’s oxygen requirement, was reported by the Senate Environment
and Public Works Committee on December 20 (S.Rept. 107-131). The bill would provide
additional authority to EPA to regulate fuel additives and emissions, authorize a one-time
appropriation of $200 million from the Leaking Underground Storage Tank Trust Fund to
clean up MTBE leaks from tanks, and authorize another $200 million over 6 years for states
to use to oversee and enforce tank leak prevention and detection regulations. It would also
authorize $750 million in grants to assist conversion of merchant MTBE production facilities
to production of cleaner fuel additives. The Chairman and other members of the committee
said they expected to engage in negotiations to add renewable fuel requirements to the bill
before it could be brought to the floor.
Instead of S. 950 coming to the floor, however, similar MTBE provisions were added
to the Senate’s energy bill, as Sections 831-839 of S.Amdt. 2917. The amendment also
provided for tripling the use of ethanol or other renewable fuels in motor vehicles by 2012,
in Section 820. These provisions passed the Senate in the Senate version of H.R. 4, April
25, 2002. The bill awaits a conference with the House, which passed its own version of H.R.
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4 in August 2001, minus most of the MTBE and ethanol provisions, and different in many
other respects, as well.
As the deadlines for state phaseout of MTBE move closer, investment decisions
involving hundreds of millions of dollars hang on the regulatory framework of the post-
MTBE gasoline market. Thus, pressure for congressional action on this issue is likely to
remain high in the 107th Congress. Whether this pressure will produce enacted legislation
is less clear. (For additional discussion of the MTBE issue, see CRS Report 98-290, MTBE
in Gasoline: Clean Air and Drinking Water Issues. For information on ethanol, see CRS
Report RL30369. Fuel Ethanol: Background and Public Policy Issues.)
Implementation of the National Ambient Air Quality Standards
A third issue that Congress has followed closely for some time, and may continue to
follow, is that of the revised air quality standards promulgated by EPA in 1997. The
standards were challenged in the courts by numerous parties; on February 27, 2001, the
Supreme Court handed down a decision (Whitman v. American Trucking Associations),
upholding EPA on the major issues while requiring the Agency to develop a new approach
to implementing the standard for ozone. How or whether Congress should respond to the
Supreme Court decision could be the subject of future hearings.
Under the Clean Air Act, EPA sets national standards for ambient (outdoor) air quality
and is directed to review the standards every 5 years. On July 18, 1997, the Agency
completed its review of two of the six standards, promulgating a new standard for fine
particulates (referred to as PM ) and revised standards for ozone (O ) and coarse particles
2.5
3
(PM ). (For background on the standards, see CRS Report 97-8, Air Quality: Background
10
Analysis of EPA’s 1997 Ozone and Particulate Matter Standards.)
The net impact of the promulgated standards would be increased stringency: 329
counties have pollutant concentrations above the new ozone standard, as compared to 170
counties under the old. The new particulate standard is expected to bring at least 100 new
counties into nonattainment status, as well. Such an increase in the number of nonattainment
areas would have broad implications for the states, affected industries, economic sectors such
as agriculture and transportation, and individuals. As a result, Congress has remained
interested in the standards and decisions regarding their implementation, and numerous
groups sued EPA to overturn them.
On May 14, 1999, the U.S. Court of Appeals for the D.C. Circuit, in a case filed by the
American Trucking Associations and other plaintiffs, remanded both the ozone and
particulate standards to EPA. An EPA appeal to the Supreme Court was accepted on May
22, 2000, however. The Supreme Court also agreed to hear a cross-petition from the U.S.
Chamber of Commerce, which argued that EPA should have considered costs in setting the
new standards.
On February 27, 2001, the Supreme Court issued a unanimous decision overturning the
Appeals Court and rejecting the cross-petition. The Court held, contrary to industry
arguments, that EPA may not consider implementation costs when it sets National Ambient
Air Quality Standards. The Court also held that Section 109 of the Clean Air Act does not
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unconstitutionally delegate legislative power to EPA. Both were clear victories for the
Agency.
The Court also found, however, that EPA erred in arguing that it could disregard
requirements established by Congress in the 1990 Clean Air Act Amendments when
implementing the new 8-hour ozone standard. While acknowledging that the statute is
“ambiguous” in key respects, and conceding “it may well be ... that some provisions of
Subpart 2 [the statute’s language regarding implementation of the old, 1-hour ozone
standard] are ill-fitted to implementation of the revised standard,” the Court found that the
Agency’s actions in disregarding Subpart 2 were unlawful and unreasonable.
The Court was less clear in giving guidance on how this issue is to be resolved: “After
our remand, and the Court of Appeals’ final disposition of this case, it is left to the EPA to
develop a reasonable interpretation of the nonattainment implementation provisions insofar
as they apply to revised ozone NAAQS.” How this implementation issue will be resolved
and whether Congress should play a role in its resolution could be the subject of oversight
hearings and, perhaps, legislation. In the meantime, EPA has begun drafting a new
implementation plan, which it expects to formally propose this summer.
Environmental groups are losing patience with the continuing delays in implementing
the new standards. On May 30, 2002, 11 such groups served notice that they intend to sue
the Agency if it does not designate ozone nonattainment areas within 60 days.
LEGISLATION
H.R. 4 (Tauzin)
Securing America’s Future Energy Act of 2001. Comprehensive energy legislation.
As amended and passed by the Senate, the bill includes provisions that would ban use of the
gasoline additive MTBE within 4 years of enactment (but allow states to authorize its
continued use), eliminate the requirement to use oxygenates in reformulated gasoline, require
maintenance of the toxic emission reductions achieved by the RFG program, authorize
additional funding for cleanup of ground water contaminated by MTBE, and triple use of
ethanol and other renewable fuels in motor vehicles by 2012. S.Amdt. 2917 (Daschle)
proposed February 15, 2002, and further modified March 5, 2002. Amendment agreed to by
voice vote, April 25, 2002. Amendment incorporated into H.R. 4 and passed by the Senate,
April 25, 2002.
H.R. 20 (Greenwood)
Amends Section 211 of the Clean Air Act to require the EPA Administrator to waive
the reformulated gasoline program’s oxygen content requirement in response to a state
petition; requires EPA to limit use of MTBE beginning in 2005; and allows EPA to control
or prohibit the use of any oxygenate, or to permit the states to do so under limited
circumstances. Introduced January 3, 2001; referred to Committee on Energy and
Commerce.
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H.R. 25 (Sweeney)
Acid Rain Control Act. To reduce acid deposition by requiring additional controls on
sources of sulfur dioxide and nitrogen oxides. Introduced January 3, 2001; referred to
Committee on Energy and Commerce.
H.R. 52 (Condit)
Amends the Clean Air Act to permit the exclusive application of California state
regulations regarding reformulated gasoline in federal RFG areas within the state. Introduced
January 3, 2001; referred to Committee on Energy and Commerce.
H.R. 454 (T. Johnson)
MTBE Elimination Act. Prohibits the use of MTBE as a fuel additive, effective 3 years
after the date of enactment; establishes an MTBE ground water contamination and
remediation research grants program within the Environmental Protection Agency; and
allows reformulated gasoline containing 3.5% ethanol to exceed current standards for
volatility. Introduced February 6, 2001; referred to Committee on Energy and Commerce.
H.R. 608 (Ganske)
Clean Air and Water Preservation Act of 2001. Amends Section 211 of the Clean Air
Act to prohibit the use of MTBE 3 years after the date of enactment, to provide flexibility
within the oxygenate requirement of the RFG program, and to prevent backsliding on
emissions by limiting the aromatic hydrocarbon content of RFG. Introduced February 14,
2001; referred to Committee on Energy and Commerce.
H.R. 1256 (Waxman)
Clean Smokestacks Act of 2001. Amends the Clean Air Act to reduce emissions of
sulfur dioxide, nitrogen oxides, mercury, and carbon dioxide from electric powerplants.
Introduced March 27, 2001; referred to Committee on Energy and Commerce.
H.R. 1335 (Allen)
Clean Power Plant Act of 2001. Requires reductions in emissions of mercury, carbon
dioxide, nitrogen oxides, and sulfur dioxide from fossil fuel-fired electric utility generating
units. Introduced April 3, 2001; referred to Committee on Energy and Commerce.
H.R. 1647 (Barton)
Electricity Emergency Relief Act. Includes provisions designed to temporarily waive
NOx emission requirements for power plants during electricity emergencies. Introduced May
1, 2001; referred to Committees on Energy and Commerce and on Resources. Approved,
amended, by Energy and Commerce Subcommittee on Energy and Air Quality, May 10,
2001.
H.R. 1695 (Pombo)
Amends Section 211 of the Clean Air Act to require EPA to prohibit the use of MTBE
as a fuel additive and to prohibit any additive in gasoline unless it has been determined
(through scientific testing and peer review) not to have any adverse effects on the public.
Introduced May 3, 2001; referred to Committee on Energy and Commerce.
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H.R. 1891 (Bryant)
Clean Diesel Fuel Provider Relief Act. Amends Section 211 of the Clean Air Act to
eliminate the phase-in period (2006 to 2010) for the reduction of sulfur content in diesel fuel,
making EPA’s new sulfur standard effective September 1, 2006, and sets cetane and aromatic
content requirements for such fuel. Introduced May 17, 2001; referred to Committee on
Energy and Commerce.
H.R. 1999 (Nussle)
Ethanol Energy Promotion Act of 2001. Amends the Clean Air Act to prohibit the use
of MTBE as a fuel additive and to require federal vehicles to use ethanol fuel, and to modify
the small-ethanol-producer tax credit. Introduced May 24, 2001; referred to Committees on
Energy and Commerce and on Ways and Means.
H.R. 2017 (Green)
Directs the EPA Administrator to conduct a study of the feasibility of developing
regional vehicle fuel specifications for the United States and of implementing the use of a
uniform blend of gasoline in the Midwest. Introduced May 25, 2001; referred to Committee
on Energy and Commerce.
H.R. 2116 (Taylor)
Great Smoky Mountains Clean Air Act of 2001. Requires reductions of emissions of
sulfur dioxide, nitrogen oxides, mercury, and carbon dioxide from Tennessee Valley
Authority electric powerplants by January 1, 2007. Introduced June 7, 2001; referred to
Committee on Energy and Commerce.
H.R. 2230 (King)
Amends Section 211 of the Clean Air Act to prohibit the use of the fuel additive MTBE
in gasoline. Introduced June 19, 2001; referred to Committee on Energy and Commerce.
H.R. 2249 (Blunt)
Gasoline Access and Stabilization Act of 2001. Amends Section 211 of the Clean Air
Act to require a more uniform formula for gasoline and diesel fuel so that gasoline and diesel
fuel manufactured for one region of the country may be transported to and sold in other
regions. Introduced June 20, 2001; referred to Committee on Energy and Commerce.
H.R. 2270 (Issa)
Identical to H.R. 52. Introduced June 21, 2001; referred to Committee on Energy and
Commerce.
H.R. 2729 (Allen)
Amends the Clean Air Act to require reduced emissions of mercury from fossil
fuel-fired electric utility steam generating units, commercial and industrial boiler units, solid
waste incineration units, medical waste incinerators, hazardous waste combustors,
chlor-alkali plants, and Portland cement plants. Introduced August 2, 2001; referred to
Committee on Energy and Commerce.
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H.R. 3362 (Condit)
Transported Air Pollution Mitigation Act of 2001. Amends the Clean Air Act to impose
certain requirements on areas upwind of ozone nonattainment areas. Introduced November
28, 2001; referred to Committee on Energy and Commerce.
H.R. 3596 (Ryan)
Amends the Clean Air Act to ban the use of MTBE in gasoline, eliminate the RFG
program’s oxygen requirement, require the use of renewable fuel, and reduce the number of
“boutique” fuels. Introduced December 20, 2001; referred to Committee on Energy and
Commerce.
H.R. 3880 (Fossella)
Provides a temporary waiver from certain transportation conformity requirements and
metropolitan transportation planning requirements under the Clean Air Act for areas in New
York where the planning offices and resources have been destroyed by acts of terrorism.
Introduced March 6, 2002; referred to Committees on Energy and Commerce and on
Transportation and Infrastructure.
H.R. 3946 (Sensenbrenner)
Fuel Price Stability Act of 2002. Amends the Clean Air Act to allow the Governors of
Illinois, Indiana, and Wisconsin to permit the sale of conventional gasoline in reformulated
gasoline areas if the Governor finds that reduced availability of RFG has resulted in, or is
likely to result in, a significant price increase in that area Introduced March 12, 2002;
referred to Committee on Energy and Commerce.
H.R. 4611 (Olver)
Amends the Clean Air Act to establish an inventory, registry, and information system
of United States greenhouse gas emissions. Introduced April 25, 2002; referred to
Committee on Energy and Commerce.
S. 60 (Byrd)
National Electricity and Environmental Technology Act. Authorizes accelerated
research and development programs for advanced clean coal technologies for use in
electricity generating facilities; amends the Internal Revenue Code to provide financial
incentives to encourage retrofitting, repowering, or replacement of coal-based electricity
generating facilities to protect the environment and improve efficiency and encourage the
early commercial application of advanced clean coal technologies. Introduced January 22,
2001; referred to Committee on Finance.
S. 265 (Fitzgerald)
MTBE Elimination Act. Prohibits the use of MTBE as a fuel additive, effective 3 years
after the date of enactment and establishes an MTBE ground water contamination and
remediation research grants program within the Environmental Protection Agency.
Introduced February 6, 2001; referred to the Committee on Environment and Public Works.
S. 389 (Murkowski)
National Energy Security Act of 2001. To protect the energy and security of the United
States and decrease America’s dependency on foreign oil sources to 50% by the year 2011
by enhancing the use of renewable energy resources, conserving energy resources, improving
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energy efficiencies, and increasing domestic energy supplies; to improve environmental
quality by reducing emissions of air pollutants and greenhouse gases; and to mitigate the
effect of increases in energy prices on the American consumer, including the poor and the
elderly. Introduced February 26, 2001; referred to Committee on Finance.
S. 517 (Bingaman)
Energy Policy Act of 2002. Comprehensive energy legislation. As modified by
S.Amdt. 2917 (Daschle), Section 819 requires increasing use of ethanol or other renewable
fuels in motor vehicle fuel each year from 2004 to 2012. Sections 831-839 would ban the
use of MTBE in gasoline within 4 years, allow governors to waive the oxygenate requirement
in reformulated gasoline, prevent backsliding on emissions of air toxics from RFG, and
authorize funds for remediation of MTBE leaks. S. 517 introduced March 12, 2001.
Amendment in the nature of a substitute introduced February 15, 2002; amendment, as
modified, adopted March 5, 2002. Senate consideration began March 5, 2002.
S. 556 (Jeffords)
Clean Power Act of 2001. Amends the Clean Air Act to reduce emissions of sulfur
dioxide, nitrogen oxides, mercury, and carbon dioxide from electric powerplants. Introduced
March 15, 2001; referred to the Committee on Environment and Public Works.
S. 588 (Schumer)
Acid Rain Control Act. Amends the Clean Air Act to reduce emissions of sulfur
dioxide, nitrogen oxides, and mercury from electric powerplants. Establishes a NOx
emissions trading program. Introduced March 21, 2001; referred to the Committee on
Environment and Public Works.
S. 670 (Daschle)
Renewable Fuels Act of 2001. Amends the Clean Air Act to ban MTBE from the U.S.
fuel supply not later than 4 years after the date of enactment, to increase production and use
of ethanol, and to authorize $400 million from the Leaking Underground Storage Tank Fund
for remediation of MTBE contamination. Introduced March 30, 2001; referred to the
Committee on Environment and Public Works.
S. 892 (Harkin)
Clean and Renewable Fuels Act of 2001. Amends the Clean Air Act to phase out the
use of MTBE in fuels or fuel additives and to promote the use of renewable fuels. Introduced
May 15, 2001; referred to the Committee on Environment and Public Works.
S. 947 (Feinstein)
Amends the Clean Air Act to allow Governors to waive the oxygen content requirement
for reformulated gasoline. Introduced May 24, 2001; referred to the Committee on
Environment and Public Works.
S. 950 (B. Smith)
Federal Reformulated Fuels Act of 2001. Requires EPA to ban the use of MTBE as a
fuel additive within 4 years of enactment; allows Governors to waive the oxygen content
requirement for reformulated gasoline; requires maintenance of toxic air pollution reductions
achieved under the reformulated gasoline program; authorizes $400 million from the Leaking
Underground Storage Tank Trust Fund for remediation of MTBE leaks, release prevention,
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and compliance; requires studies of the health and environmental effects of MTBE
substitutes; expands the authority for states to opt in to the RFG program; and other
provisions. Introduced May 24, 2001; referred to the Committee on Environment and Public
Works. Reported December 20, 2001 (S.Rept. 107-131).
S. 1131 (Leahy)
Clean Power Plant and Modernization Act of 2001. Promotes economically sound
modernization of U.S. electric power generation capacity, establishes requirements to
improve the combustion heat rate efficiency of fossil fuel-fired electric utility generating
units, reduces emissions of mercury, carbon dioxide, nitrogen oxides, and sulfur dioxide,
requires that all U.S. fossil fuel-fired electric utility generating units meet new source review
requirements, promotes the use of clean coal technologies, and promotes alternative energy
and clean energy sources. Introduced June 28, 2001; referred to the Committee on Finance.
S. 1870 (Corzine)
Amends the Clean Air Act to establish an inventory, registry, and information system
of United States greenhouse gas emissions. Introduced December 20, 2001; referred to the
Committee on Environment and Public Works.
S. 1875 (Leahy)
Amends the Clean Air Act to establish requirements concerning the operation of fossil
fuel-fired electric utility steam generating units, commercial and industrial boilers, solid
waste incinerators, medical waste incinerators, hazardous waste combustors, chlor-alkali
plants, and Portland cement plants to reduce emissions of mercury to the environment.
Introduced December 20, 2001; referred to the Committee on Environment and Public
Works.
S. 2065 (Campbell)
To implement air quality programs on the Southern Ute Indian Reservation in Colorado.
Introduced March 21, 2002; referred to the Committee on Environment and Public Works.
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. Senate. Committee on Environment and Public Works. S. 556, the Clean
Power Act. November 1 and 15, 2001; January 29, 2002.
––-. Impact of Air Emissions from the Transportation Sector on Public Health and the
Environment. August 1, 2001.
––-. Health and Environmental Effects of Power Plant Emissions. July 26, 2001.
––-. MTBE in Gasoline. April 27, 2001.
U.S. Congress. House. Committee on Energy and Commerce. Subcommittee on Energy and
Air Quality. H.R. 1647, The Electricity Emergency Act of 2001. May 1 and May 3,
2001.
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----. Accomplishments of the Clean Air Act. May 1, 2002.
FOR ADDITIONAL READING
CRS Reports
CRS Report RL30432. Air Quality and Electricity: Enforcing New Source Review, by Larry
B. Parker and John E. Blodgett. January 31, 2000. 23 p.
CRS Report RS20553. Air Quality and Electricity: Initiatives to Increase Pollution
Controls, by Larry B. Parker and John E. Blodgett. March 9, 2001. 6 p.
CRS Report 98-236. Air Quality: EPA’s Ozone Transport Rule, OTAG, and Section 126
Petitions — A Hazy Situation?, by Larry Parker and John Blodgett. Updated March 9,
2000. 24 p.
CRS Report RL31326. Air Quality: Multi-Pollutant Legislation and the Administration’s
Proposal, by Larry Parker and John Blodgett. March 8, 2002. 7 p.
CRS Report RL30853. Clean Air Act: A Summary of the Act and Its Major Requirements,
by James E. McCarthy. February 13, 2001. 22 p.
CRS Report RL30737. Diesel Fuel and Engines: An Analysis of EPA’s Proposed
Regulations, by Brent D. Yacobucci, James E. McCarthy, John W. Fischer, Alejandro
E. Segarra, and Lawrence C. Kumins. May 1, 2001. 25 p.
CRS Report RL30878. Electricity Generation and Air Quality: Multi-Pollutant Strategies,
by Larry Parker and John Blodgett. March 13, 2001. 37 p.
CRS Report RL30369. Fuel Ethanol: Background and Public Policy Issues, by Brent D.
Yacobucci and Jasper Womach. March 22, 2001. 17 p.
CRS Report RL30131. Highway Fund Sanctions and Conformity Under the Clean Air Act,
by James E. McCarthy. Updated October 15, 1999. 8 p.
CRS Report 98-290. MTBE in Gasoline: Clean Air and Drinking Water Issues, by James
E. McCarthy and Mary Tiemann. Updated May 15, 2001. 22 p.
CRS Report RL31149. Snowmobiles, Environmental Standards, and Access to National
Parks: Regulatory and Legislative Issues, by James E. McCarthy. November 19, 2001.
9 p.
CRS Report RS20860. The Supreme Court Upholds EPA Standard-Setting Under the Clean
Air Act: Whitman v. American Trucking Ass’ns, by Robert Meltz and James E.
McCarthy. March 28, 2001. 6 p.
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