- The Washington Times - Friday, March 29, 2002

Media reaction to the Environmental Protection Agency's consideration of changes in an EPA enforcement program (sometimes referred to as New Source Review or "NSR") launched at the tail-end of the Clinton administration has approached levels of exaggeration that betray an unsettling ignorance about air-quality programs in the United States.
The charge of the media, the environmentalists and Northeast attorneys general is that any change in the NSR enforcement program will perpetuate an exclusion from any emission controls for the nation's oldest power plants and will result in an explosion of pollution, especially in the Northeast. But the portrayal of hundreds of out-of-control plants poisoning our air bears absolutely no relation to reality.
It is, in fact, difficult to know just where to start to describe the control programs these plants are now subject to. First, there is the revolutionary Title IV acid rain program enacted in 1990 that is now more than halfway through a 50 percent, 10 million ton reduction of sulfur dioxide (SO2) and a 2 million ton reduction of nitrogen oxides (NOx). The phased reductions required by this statute affect every power plant in the U.S. (including by name eight plants targeted by NSR complaints) and will be completed by 2010. Emissions once reduced cannot increase by 1 ton after 2010 no matter how may new power plants are built or renovated now or later.
Then there are the interstate NOx transport limits recently imposed by EPA on upwind Midwest power plants to protect the downwind Northeast states limits that were authorized by the 1990 Amendments, that were affirmed by the D.C. Circuit in 2000 and that are now being implemented by the affected utilities. Related to these limits are the pending so-called "Section 126" petitions that have been filed in federal court by the downwind states to seek essentially the same reductions as EPA has already imposed.
A third program, also authorized in 1990, will require massive reductions to achieve visibility goals pursuant to a rulemaking initiated recently. All of this is on top of pre-existing health standards for ozone, particulate matter and other pollutants that the states implement and which have driven down the six major pollutants by more than 30 percent over the last 30 years despite a 150 percent increase in the gross domestic product.
Last, but certainly not least, is the future implementation of a new fine particle (PM 2.5) standard that was temporarily delayed by a combination of congressional and judicial clarifications. Just how much more reduction this health standard will require beyond the cumulative reductions imposed by the controls described above remains to be seen. But some of the reductions that the Clinton NSR policy targets may be totally unnecessary to meet this fine-particle health standard and may thus violate a recent unanimous Supreme Court decision that EPA may only seek reductions that "are necessary" to meet health standards.
Indeed, it is almost certain that some potential NSR reductions will not only be unnecessary but also be counterproductive because they will aggravate ozone pollution in large population centers in the East a possibility EPA acknowledges in its pending PM 2.5 proceeding but ignores in its NSR enforcement program. The problem is that, perhaps counterintuitively, overregulating NOx in downwind urban areas will actually worsen ozone if not accompanied by VOC reductions that are the primary responsibility of cars, trucks and buses. Accordingly, Eastern urban areas like Chicago and Detroit have been granted NSR NOx "waivers" by EPA under the Clean Air Act waivers that have been blithely ignored by EPA's NSR enforcement arm.
The paradox of NOx over-control raises a final difficulty with EPA's current approach. As suggested above, there are other sources of pollution, principally mobile sources, that must be coordinated not only to maximize the efficiency of the controls but to avoid making things worse. Mobile sources in fact contribute more to pollution overall than stationary sources especially in places like the Washington Metropolitan area where there is little heavy industry and the primary cause of current health standard violations are cars (with some blame to be placed on upwind power plants that are now subject to the transport limits noted above).
Yet the Clinton EPA ruled that it would not ask for any further reductions of mobile source toxic emissions like the carcinogenic aromatics (benzene, toluene and xylene) which are the most active cause of ozone and may be the most dangerous fine particles.
Ultimately, the best way to reduce pollution is to extend to mobile sources the market incentive approach of Title IV of the 1990 Amendments, which produced power plant reductions at a pace nearly 50 percent faster and 5 to 10 times cheaper than originally anticipated. Only a market serving binding reduction targets, which EPA can establish without additional legislation, can attract private capital and sort out the best way to integrate stationary and mobile source reductions, incentivize innovations in distributed electric power and fuel cell automobiles and thus also reduce dependency on foreign crude imports as well as go the final mile of air quality in the U.S. (U.S. air quality, by the way, is far better than Europe's, notwithstanding the latter's constant criticism of the U.S. as an environmental scofflaw).
The most serious problem with EPA's NSR enforcement initiative is not that it will be unnecessary, hugely expensive, energy draining and environmentally counterproductive it will be all that but that it will also be a throwback to old-fashioned command-and-control regulation that brands hard-working executives as quasi-criminals for their efforts to make industry more efficient, less polluting and less dependent on imported crude oil. After September 11, these efforts should be encouraged, not punished.

C. Boyden Gray, a partner with Wilmer, Cutler & Pickering, is former counsel to President George Bush.

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