Battle Over Air Quality Standards Enters New Arena

Published August 1, 1997

On June 25, President Clinton announced his endorsement of EPA’s controversial plans to tighten standards for particulate matter (PM) and ground-level ozone, moving the national debate over air quality regulation to a new arena: Congress and the courtroom.

Ending weeks of heated debate within his own administration, Clinton handed EPA Administrator Carol Browner her biggest regulatory victory since taking over the agency in 1993. Browner fought tenaciously for the rules, arguing that they are necessary to protect public health. The battle badly split key constituencies of the Democratic Party and left wounds that will not heal easily.

In siding with Browner, the White House made only slight revisions to EPA’s original proposal, first unveiled last November. The final rules, signed at the White House on July 16, will set a new eight-hour standard for ozone at 0.08 parts per million (ppm) and a new PM standard targeted at particles 2.5 microns or less in diameter. When the new standards take effect several years from now, they are expected to immediately throw some 400 counties across the country out of compliance with national air quality standards.

Hoping to ease the concerns of business and political leaders in affected areas, EPA and the White House have devised a plan that, in the president’s words, will be “flexible in how those standards are implemented.” Regarding ozone, for example, EPA will create new “transitional” classifications for counties where the bulk of ozone reduction will have to take place. Though EPA has yet to spell out what the term means, “transitional non-compliance” presumably would apply to areas where mandatory cuts in utility emissions, if they are part of a broader air quality plan, would allow state and local governments to receive extensions on their compliance deadlines. There is some question as to whether this “transitional non-compliance” is compatible with the Clean Air Act (CAA), and the agency will have to explain in further detail exactly how it intends to handle this category.

As for PM, the rule gives EPA five years to build a nationwide system to monitor, gather, and analyze data on fine particulate matter. After that, non-compliance areas will be given three additional years to develop appropriate air quality plans, another one-and-one-half years to review those plans, and “several more years” to comply with the standards.

Ball in Congress’ Court

The administration may have hoped that delayed implementation of EPA’s proposal would placate opponents, but initial reaction to Clinton’s endorsement suggests that, if anything, resistance has stiffened.

At present, Congressional opponents of the regulations are looking at two options. One is a free-standing bill introduced by Congressmen Ron Klink (D-Pennsylvania), Rick Boucher (D-Virginia), and Fred Upton (R-Michigan). Their bill, H.R. 1984, amassed 30 co-sponsors within hours of President Clinton’s June 25 announcement. The bill was expected to have 200 or more cosponsors by the end of July. Just before Congress adjourned for the holidays, Congressman John Dingell (D-Michigan), ranking minority member on the House Commerce Committee, endorsed the measure, now known in Washington as the Dingell-Klink bill.

Resolution of Disapproval

In addition to H.R. 1984, lawmakers are considering a second legislative avenue–the Small Business Regulatory Enforcement Fairness Act (SBREFA)–to block implementation of the new standards.

Under SBREFA, enacted in March 1996, each agency is required to submit to Congress a copy of any proposed new rule, along with a report describing its contents. If a rule has a projected annual effect on the economy of $100 million or more, implementation of the rule is stayed for 60 days in order to allow Congress to act. Since the projected economic impact of EPA’s PM and ozone regulations easily exceeds $100 million, they would fall under SBREFA.

In the event that Congress does not believe a proposed rule should take effect, each body must pass a joint resolution of disapproval, which must then be signed by the President. SBREFA creates an expedited procedure for consideration of the joint resolution in the Senate, ensuring that opponents of a resolution of disapproval cannot filibuster to stall the procedure.

For both SBREFA and the Dingell-Klink bill, the key question will be whether opponents of the new standards can muster the two-thirds vote in both houses of Congress necessary to override a certain presidential veto. As things stand now, the House is closer to that goal than is the Senate. Regardless of whether lawmakers decide to go with SBREFA or a free-standing bill, Congressional sources agree that the measure would have to pass the House by a two-thirds vote (290 votes) in order to be taken seriously by the Senate.

Whither Gephardt?

One of the most intriguing pieces in the air standards puzzle is House Minority Leader Richard Gephardt. The Missouri lawmaker is widely reported to have told opponents of EPA’s proposal that he, too, objects to the agency’s plans. But like Al Gore, his chief rival for the Democratic presidential nomination in 2000, Gephardt has avoided the spotlight on the issue. Should Gephardt break with the White House and side with those trying to overturn the new standards, he would endear himself to many powerful Midwestern Democratic mayors, governors, and labor leaders–something that could pay dividends when primary season rolls around. Such a move would no doubt infuriate environmentalists, but Gephardt probably counts them in Gore’s camp anyway.

In the Senate, efforts to overturn the regulations will be spearheaded by Senator James Inhofe (R-Oklahoma), who will probably have at least one high-profile Democratic cosponsor. Inhofe is on record as saying he has 63 votes lined up to kill the regulations–four short of the 67 he needs. Getting to 67 will be no easy task. There are 55 Republicans in the Senate, of whom four have publicly endorsed EPA’s regulations. Assuming no more Republicans defect, Inhofe would have to persuade 16 Democrats to defy the White House–a tall order.

EPA’s Strategy

EPA and its allies on Capitol Hill and in the environment community are preparing a counter-attack. Rather than referring to the new rules as environmental regulations, Browner has labeled them “public health standards.” Both she and President Clinton have publicly stated that the new regulations will benefit children, an emotional argument that has served the administration and EPA well in the past.

While many mayors, governors, and industry officials condemned the president’s decision, it was warmly welcomed by environmental activists, many of whom had become impatient with the administration’s lack of public support for Browner in the weeks and months preceding Clinton’s decision.

See You in Court

As was perhaps inevitable in America’s litigation-prone society, the issue is already headed for the courtroom. In the first of what promises to be many lawsuits against the new standards, the American Trucking Association (ATA) has charged EPA with violating SBREFA. Because there is as of yet no case law involving SBREFA, predicting the outcome of this and other legal challenges to EPA’s new rule is to engage in little more than idle speculation. What is clear is that the matter will be tied up in court for years to come.