The
Clean Air Act (CAA), perhaps the federal government's most powerful
environmental tool, concedes in its very first section that "air
pollution control at its source is the primary responsibility of states
and local governments." Notwithstanding these sentiments, the CAA has
been implemented by Washington
in a manner that crowds out most state and local autonomy. There are
many problems but also some benefits to this approach, as is
demonstrated by two pending Supreme Court cases involving state and
local challenges to federal air policy.
Alaska Department of Environmental Conservation v. Environmental Protection Agency involves a permit dispute over the Red Dog Mine, the world's largest zinc mine located above the Arctic Circle in Alaska.
In 1999, the state issued a permit allowing the facility to add a
seventh electricity-generating unit. The permit required the mine to
install so-called low nitrogen oxide technology to control air
pollution at the new unit. The federal EPA then stepped in and overrode
the state, declaring these permit provisions too weak and demanding
that the mine install a costlier selective catalytic reduction system
instead. Alaska
is challenging EPA's actions, arguing that the federal government
exceeded its limited oversight authority in state permitting decisions.
In Engine Manufacturers Association v. South Coast Air Quality Management District,
motor vehicle engine makers have challenged local provisions mandating
alternatives to gasoline and diesel powered vehicles in parts of California. These requirements would apply to new vehicles purchased for use in government and private fleets throughout Los Angeles, Orange, San Bernardino, and Riverside
counties. The engine makers assert that the CAA preempts any such local
vehicle standards at odds with the nationally-approved ones.
It is probably more than coincidence that Alaska and Southern California are the ones challenging Washington on air policy. Alaska has the nation's cleanest air, and Southern California
has some of its dirtiest. Thus, both could be expected to differ with
the one-size-fits-all federal approach regarding the best balance
between jobs and economic growth on the one hand, and additional
pollution reductions on the other. Indeed, imposing the same standards
everywhere ignores the wide variety of local circumstances, as well as
the reality that local officials, and not federal bureaucrats, best
know those circumstances and are more directly accountable to the
citizenry. In terms of serving the interests of the public, there is
much to be said for substantial state and local input.
These
cases also highlight two arguments favoring federal involvement. Only
the federal government, the first argument goes, is big enough not to
be beholden to major local industries. If Alaska or any other state or local jurisdiction were allowed to implement the CAA without strong Washington
oversight, we would soon see a race to the bottom as each competes to
attract industry by relaxing its standards. Thus, the federal
government is the only party truly able to step in and demand
sufficiently tough clean air protections.
The
second argument, which applies to products like motor vehicles that
have a national market, is that it is easier for manufacturers (and
cheaper for their customers) to comply with uniform federal regulations
than a patchwork of different ones from states, counties, and cities.
Currently, the CAA allows only two sets of standards, EPA's national
standards, as well as more stringent California state standards that must be approved by EPA. The local car and truck provisions at issue in Engine Manufacturers Association depart
from both, and if allowed to stand could open the door to many others.
The desire to limit market balkanization in vehicles and other
regulated goods explains much of the manufacturer support for the CAA.
The
race to the bottom argument seems plausible, but lacks empirical
support. True, states compete for industry, but they also must provide
the environmental protection the public demands. There is little
evidence that state and local governments deserve the mistrust Washington shows them.
In the case of the Red Dog Mine, Alaska
asserts that its permit terms would have provided more than adequate
environmental protection, and that EPA is needlessly insisting on a
more expensive approach. Indeed, in its Supreme Court brief, the state
argues that its permit "was expected to result in lower overall nitrogen oxide emissions" as compared to EPA's requirements. EPA disputes this assertion, but does not allege that Alaska's permit would have led to any violations of air quality standards. In sum, Alaska believes that Washington's involvement has done more harm than good, a familiar complaint in such EPA/state disputes. If EPA prevails in Alaska Department of Environmental Conservation, the potential for federal interference would only increase.
On the other hand, there is merit to the national uniformity argument at issue in Engine Manufacturers Association.
A multiplicity of local vehicle standards would not just impact the
areas where they were enacted, but would have spillover effects even in
jurisdictions that didn't have them. Either manufacturers would have to
build to all of these standards, losing economies of scale and raising
the cost of every model, or they would only comply with the most
stringent ones, in effect forcing that choice on everyone. Granted,
federal standards trump those local governments that want to do their
own thing, but they protect all the others that don't.
Further, local vehicle standards won't do much to improve air quality in Southern California,
or anywhere else. The newest federal car and truck emissions standards
are so stringent that there is little or nothing to be gained by local
governments trying to top them.
Legally, Alaska Department of Environmental Conservation is a tougher call than Engine Manufacturers Association.
The CAA does give EPA ultimate enforcement and oversight authority.
However, several federal cases have concluded that this authority does
not allow the agency to second guess state choices of control measures.
In contrast, the CAA unambiguously preempts all but federally-approved vehicle emissions standards. An amicus curiae brief
submitted by industry concludes that "if local design standards related
to emissions control are not preempted 'standards' under the Clean Air
Act, then nothing is."
Supreme
Court decisions in both cases should be out in 2004. From a policy
standpoint, it would be best if EPA lost the right to meddle in Alaska's permitting process but maintained its primacy in vehicle emissions standards.
Ben Lieberman is the Director of Air Quality Policy with the Competitive Enterprise Institute, in Washington, DC.