Dissenting Views

Energy Policy Act of 2005

Clean Air Act Attainment Date Extensions

Section 1443 of the bill provides attainment date extensions for ozone nonattainment areas under section 181 of the Clean Air Act. Under this provision, an area may obtain an extension if another area makes a “significant contribution” to its nonattainment status. The extension may be granted until such time as the contributing area makes its “last reductions necessary for attainment in the downwind area.”

This provision may no longer be necessary to address their originally intended purpose. It has not been examined in a legislative hearing, and the Environmental Protection Agency (EPA) has already stated that the provision needs to be “refined” in order to maintain consistency with EPA’s latest rule changes. The provision could result in sweeping changes to Clean Air policy and undermine ongoing efforts at EPA to attain ozone standards as soon as possible. The provision is opposed by national environmental organizations such as the American Lung Association, Public Citizen, Clean Air Task Force, Clear the Air, Earthjustice, Friends of the Earth, League of Conservation Voters, National Environmental Trust, Natural Resources Defense Council, the Sierra Club and U.S. PIRG.

This provision was originally designed to address the possibility of “bump-ups” under section 181(b) of the Clean Air Act. Section 181(b) provides that when an area fails to meet its attainment date, it is “bumped-up” to a higher classification. The result is that an area receives an extended attainment date, and must adopt additional control measures; no sanctions are triggered. This system was designed to provide an incentive for areas to meet their attainment deadlines, and it provides a remedy if they fail by requiring implementation of additional controls to ensure that the health-based standards are ultimately attained.

During the 1990s, an issue arose regarding whether it was equitable for areas that were affected by “overwhelming transport” to be “bumped-up” in accordance with section 181(b). EPA issued guidance documents and policies addressing this issue, once in 1994 and once in 1998. These policies were eventually overturned in court. (See Sierra Club v. EPA 294 F.3d 155 (D.C. Cir. July 2, 2002) (invalidating the extension for Washington, D.C.); Sierra Club v. EPA 314 F.3d 735 (5th Cir. Dec. 11th, 2002) (Baton Rouge); Sierra Club v. EPA 311 F.3d 853 (7th. Cir, November 25th, 2002)(St. Louis) and Sierra Club v. EPA Nos. 02-13486, 0213705, Slip op. June 17, 2003 (11th Cir.)).

On July 22, 2003, the Committee held an oversight hearing relating to the “bump-up” policy. Hearing Before the Subcommittee on Energy and Air Quality “Bump-Up” Policy Under Title I of the Clean Air Act, July 22, 2003, Serial No. 108-62. At that time, no legislative language had been introduced in the House. The language of section 1443 first appeared at Conference during the 108th Congress.

In the time since section 1443 was included in the Conference Report, two relevant events have occurred regarding ozone nonattainment under the Clean Air Act. On April 15, 2004, EPA redesignated all ozone nonattainment areas under the new 8-hour ozone standard, giving all areas (except those in California) new attainment dates of 2007, 2009, or 2010. In addition, on March 10, 2005, EPA issued its Clean Air Interstate Rule (CAIR). The CAIR rule found that 25 states east of the Mississippi make “significant contributions” to ozone nonattainment in other states. CAIR established a national “cap and trade” system with a final set of reductions required in 2015 (or beyond, due to banking).

The effect of these developments is twofold. First, the need for legislative provisions to address potential “bump-ups” is greatly reduced, or possibly even eliminated, since many areas have received a lower classification and therefore face little threat of increased mandatory controls anytime in the near future. Moreover, no area will face a “bump-up” until 2007 at the earliest, and for many areas, “bump-up” cannot now occur until 2010 or beyond.

The second, and potentially more significant, effect is that under the CAIR rule, EPA has found that areas across the eastern United States receive “significant contributions” of pollution from other areas. EPA has also established that the last set of transport reductions may not occur until 2015 (or later, due to banking). The combined effect of these changes is that section 1443 could apply to many more areas than it did in 2003 and the length of extensions to be granted is substantially increased as well.

EPA was recently asked by the Senate Environment Committee about its views regarding section 1443. EPA responded on December 9, 2004, and stated that: “EPA continues to support the concept underlying the former attainment date extension policy. Because of differences between the 1-hour ozone implementation and 8-hour ozone implementation, the policy would need to be refined for purposes of 8-hour implementation.” December 9, 2004, Letter from EPA Associate Administrator Charles Ingebretson to Senator Thomas Carper, Response to Senator Jeffords at page 50.

This provision needs to be examined much more carefully. It affects many areas with large populations at risk of increased health effects. It could have many unintended consequences, including substantially delaying local controls that would provide health benefits and are necessary for attainment. It seeks to address a problem that has largely been rendered moot. It may seriously undermine progress toward attainment of the new ozone standard. And it has little or nothing to do with energy policy.

Changes of this magnitude should take place through the process of regular order, bringing to bear the advice and expertise of EPA and other interested parties regarding actual legislative language. That process has yet to take place with regard to section 1443. Instead, the passage of time has altered the effect of this language in important ways and called into question the original justification for legislation. Before we pass major amendments to the Clean Air Act, we must at least comprehend their full meaning and determine if the changes are a necessary improvement on current law. This provision, and the host of policy issues that it raises, should not be passed by this Committee at this time.

JOHN D. DINGELL
EDWARD J. MARKEY
SHERROD BROWN
FRANK PALLONE, JR.
HILDA L. SOLIS
ELIOT L. ENGEL
DIANA DeGETTE
LOIS CAPPS
BART STUPAK
ANNA G. ESHOO
TAMMY BALDWIN
JIM DAVIS
JAY INSLEE
JAN SCHAKOWSKY
HENRY A. WAXMAN