House expected to consider common sense Clean Air Act permitting bills

Any serious federal permitting reform effort must address the massive obstacles created by the Clean Air Act (CAA).

This week, the House is expected to address some of these obstacles. Specifically, there are three common sense bills on the calendar: the FIRE Act (H.R. 6387), the FENCES Act (H.R. 6409), and the RED Tape Act (H.R. 6398).

In some ways, these bills provide a good litmus test of whether lawmakers are serious about permitting reform.

But first, let’s take a quick step back.

Through the National Ambient Air Quality Standards (NAAQS), the Environmental Protection Agency (EPA) establishes acceptable concentration levels for the six criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ground-level ozone, particulate matter, and sulfur dioxide.

Every five years, the agency is required to review and, if appropriate, revise the standards. The standards for fine particulate matter (PM_2.5) and ground-level ozone are especially of concern given how difficult and costly it is to go below the incredibly low concentration levels that already exist for these pollutants. Despite myths to the contrary, US air quality is among the cleanest in the world.

In 2024, the Biden administration tightened the standards for PM_2.5 to a far stricter level, reducing them from 12 to 9 micrograms per cubic meter. This severely threatens CAA permitting in many areas across the country. CAA expert Lucinda Minton Langworthy, counsel at Hunton, explained before the Biden PM_2.5 rule was finalized:

The implications of such permitting restrictions are significant. Economic development would be impeded in much of the country. Infrastructure projects could be delayed, if not halted, even in areas meeting the NAAQS. Manufacturers would be motivated to consider siting their facilities outside of the United States in spite of current policies that promote bringing manufacturing back to the United States.

Marty Durbin, Senior Vice President for Policy at the US Chamber of Commerce, stated after the rule was finalized:

Tightening the NAAQS PM2.5 standard will grind permits to a halt for a large portion of our country. EPA’s new rule is expected to put 569 counties out of compliance and push many others close to the limit, which threatens economic growth. Compliance with the new standard will be very difficult because 84% of emissions now come from non-industrial sources like wildfires and road dust that are costly and hard to control. While EPA states there are exemptions for wildfires, 70% of those requests haven’t been granted in the past, and the process for seeking one is time-consuming and difficult for states to manage.

The NAAQS process has many problems, but one of the larger issues is the EPA setting stricter standards even when compliance may be impossible or unreasonably costly due to naturally occurring causes, foreign sources, or areas being at or near background levels. It should be noted that the EPA is not supposed to even consider costs when setting standards.

The NAAQS process is a silver bullet for those who want to block development. It is permitting and economic development poison.

Congress should ideally establish NAAQS standards themselves rather than delegate it to the EPA, while states should still be allowed to decide whether to make their own air quality standards stricter than those set by the federal government.

The three bills on the House floor do not take this much-needed action, but they represent important steps forward in addressing practical problems:

1) The FIRE Act would, among other things, ensure that areas are not unfairly penalized for wildfire smoke beyond their control or for emissions from prescribed burns. As my colleague Jacob Tomasulo explained:

Congress needs to take action to ensure that, codified within the CAA, states are not unfairly penalized for prescribed burns. Disincentivizing their use can undermine forest management. And ironically, penalizing the use of prescribed burns can hurt air quality, which undermines the purpose of the CAA.

2) The FENCES Act would, among other things, make it expressly clear that states will not be penalized for foreign emissions regardless of whether such emissions are man-made or naturally occurring.

3) The RED Tape Act removes unnecessary duplication such as the EPA being required to review and comment on federal construction projects that are already subject to environmental reviews.

None of these bills change a NAAQS standard or how NAAQS standards are set. The FIRE Act and FENCES Act simply make narrow changes to fairly determine compliance. The RED Tape Act makes a simple change to reduce duplication. In other words, none of this should be controversial.

Permitting reform is the talk of the town. But whether genuine permitting reform can be passed this Congress remains to be seen. If these three CAA bills do not pass easily, it will be a very bad sign.

Lawmakers should take advantage of this opportunity to show that they are serious about permitting reform.