High Court to Decide Clean Air Authority

Published January 1, 2004

The Clean Air Act (CAA) provides that “air pollution control at its source is the primary responsibility of states and local governments.” Nevertheless, the CAA has been implemented by the federal government in a manner that crowds out most state and local autonomy. That approach has advantages and disadvantages, as is demonstrated by two pending Supreme Court cases.

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 low nitrogen oxide technology to control air pollution at the new unit. The federal Environmental Protection Agency (EPA) stepped in, declaring the permit provisions too weak and demanding the mine install a costlier system instead. Alaska is challenging EPA’s actions, arguing the federal government exceeded its 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. The 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 the CAA preempts local vehicle standards when they are at odds with national standards.

It is probably not mere 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 disagree with the federal government’s one-size-fits-all approach.

Race to the Bottom?

These cases highlight two arguments frequently advanced in favor of 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 jurisdiction competes to attract industry by relaxing its standards. Thus, the federal government is the only party able to demand sufficiently tough clean air protections.

The race to the bottom argument seems plausible, but it lacks empirical support.

While it is true states compete for industry, 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 its permit terms would have provided more than adequate environmental protection, and that EPA is needlessly insisting on a more expensive approach. In its Supreme Court brief, the state argues its permit “was expected to result in lower overall nitrogen oxide emissions” than would EPA’s requirements. EPA disputes that assertion but does not allege Alaska’s permit would have led to any violations of air quality standards.

Legally, the case presents a tough call. The CAA does give EPA ultimate enforcement and oversight authority. However, several federal cases have concluded that authority does not allow the agency to second-guess state choices of pollution control measures.

Benefits of Uniformity

The second argument, which is at issue in Engine Manufacturers Association and applies to products with a national market, is that it is easier for manufacturers (and ultimately less expensive 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 and more stringent California state standards, which must be approved by EPA. The local car and truck provisions at issue in Engine Manufacturers Association depart from both.

The national uniformity argument has merit. Allowing multiple local vehicle standards would affect not only the communities where those standards were enacted, but other jurisdictions as well. Manufacturers would have to build separate models to meet each of the standards, losing economies of scale and raising the cost of every model, or they would comply only with the most stringent standards, in effect forcing that more expensive choice on everyone.

Moreover, local vehicle standards won’t do much to improve air quality in Southern California, or anywhere else. The newest federal car and truck emission standards are so stringent there is little or nothing to be gained by local governments trying to top them.

This case is an easier call than Alaska Department of Environmental Conservation. The CAA unambiguously preempts all but federally approved vehicle emissions standards. A friend-of-the-court brief submitted in Engine Manufacturers Association by industry concludes, “if local design standards related to emissions control are not preempted ‘standards’ under the Clean Air Act, then nothing is.”

The Court is expected to decide both cases in 2004.

Ben Lieberman is director of air quality policy for the Competitive Enterprise Institute, in Washington, DC. His email address is [email protected].