On
July 29, the Senate Committee on Environment and Public Works,
Subcommittee on Clean Air and Nuclear Safety held a hearing on the
implications of the recent surprise DC Circuit Court opinion, which vacated
the EPA's Clean Air Interstate Rule (CAIR). The EPA rule was developed
to regulate certain emissions (ozone & fine particles) from
electric utilities in an effort to address interstate transport of
pollution from upwind states that contribute to unhealthy pollution
levels in downwind states.
The
CAIR rule, which was put in place in June 2006, provides states with
options to comply with pollution reduction requirements, such as
devising their own strategy, entering the EPA-administered cap-and
trade program, or defaulting to the Federal Implementation Plan (FIP).
It supports efforts in 28 Eastern states and the District of Columbia
to meet their legal obligations to attain the fine particle (PM2) and
ozone emissions standards. On July 11, the DC Circuit court,
essentially, threw out the rules, leaving industry, states, and
policymakers scratching their heads on "what to do now."
The
EPA witness told the Committee that the agency is currently going
through an extensive analysis on how it should proceed. The agency has
to decide by August 25 if it plans to file an appeal; he said EPA is
unclear whether it will go this route, given the unanimous Court
decision. He also said EPA is looking at regulatory and legislative
avenues, but neither looks promising.
Subcommittee
Chairman Tom Carper (D-DE) and Ranking Republican George Voinovich
(R-OH) said they were extremely concerned about the economic and
environmental effects of the Court's decision, but they sounded very
pessimistic about the prospect of congressional action this year on a
narrow bill that asserted EPA's authority to implement the CAIR rules.
Environmentalists,
state regulators (New York and Ohio) and industry (N.J. Public Service
Electric & Gas and PPL Corporation) testified on the need for
Congress to move some type of legislation that would clear up confusion
following the court's decision. However, those witnesses disagreed on
the scope of what Congress needs to do, especially when mercury and CO2
are added into the discussion.
Some
advocated a quick "surgical fix" to give EPA clear authority to
implement CAIR. Some advised addressing nitrogen oxides (NOx) and
sulfur dioxide (SO2). Others said this effort should be expanded to
include carbon dioxide and toxic levels of mercury.
Carper
noted that people are dying today from the problems caused by SO2 and
NOx, and Congress does not have the luxury of waiting for years as it
tries to come together on CO2. Carper and Voinovich said they would
wait to see how EPA proceeds, given the August 25 appeals deadline,
before mapping out next steps.