Who Should Have Air Supremacy?

The Clean Air Act (CAA), perhaps the federal government's most powerful environmental tool, concedes in its very first section, “air pollution control at its source is the primary responsibility of states and local governments.” Notwithstanding these sentiments, the CAA has been implemented by <?xml:namespace prefix = st1 ns = “urn:schemas-microsoft-com:office:smarttags” />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. <?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />


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.