Environment and Public Works CommitteeClean Air and Nuclear Safety Subcommittee
Hearing on “EPA’s Clean Air Interstate Rule and Clean Air Mercury Rule: 1 Year Later”
July 09, 2009 10:00 a.m.
I want to thank Subcommittee Chairman Carper and Ranking Member Vitter for calling this timely hearing to discuss the aftermath of the DC Circuit’s decision to overturn EPA’s Clean Air Interstate Rule and Clean Air Mercury rule. I welcome this opportunity to discuss the impacts of these cases and the tools needed to achieve greater reductions in criteria pollutants.
Of course, I welcomed the opportunity four years ago when this committee debated, and ultimately failed to pass, the Clear Skies bill, which would have locked in a 70 percent reduction in emissions of mercury, nitrogen oxides, and sulfur dioxide for the next two decades. Instead, the last Administration was forced to get those reductions through regulation. I argued then that the regulatory path was uncertain and prone to litigation. Here’s what I actually said, and what I predicted, four years ago:
“CAIR is significantly more vulnerable to court challenges than Clear Skies would have been and will undoubtedly be held up, not unlike the Clinton administration's 1997 air quality standards. This latest round of litigation demonstrates the need for a strong national Clear Skies law more than ever.”
So here we are in 2009, without the substantial health benefits of Clear Skies and with no CAIR and CAMR rules because of litigation. We are left with an EPA that some believe lacks legal authority to permit region-wide emissions trading. We are left with uncertainty for states developing State Implementation Plans, or SIPs, that relied on CAIR to comply with national ambient air quality standards. We are left with uncertainty on, among other things, mercury reductions, conformity, new source review, and its effects on reductions for the Regional Haze Rule, which may impact my state of Oklahoma. In the final analysis, all we have are court decisions, which lawyers can certainly argue about for a substantial fee—but they don’t clean the air.
Let’s put it bluntly: we have a colossal mess on our hands, created in large part by litigation. Ironically enough, the outcome of the CAIR litigation was something no one wanted—not environmentalists, not the states, and not industry. Now we face an uncertain regulatory future, and more important, we could lose the health and environmental benefits that CAIR would have achieved. I would note that EPA estimates such benefits to be 25 times greater than their costs.
For all involved, it’s quite clear that the status quo is unacceptable. So what can do to change it? Obviously, I would prefer a comprehensive legislative solution, such as that proposed in the Clear Skies bill, but that’s not politically feasible now or in the near future. So I believe in the short run, it’s imperative that we provide EPA with authority to implement CAIR, or at least something very much like CAIR.
Why is such a course imperative? As you will hear today from several witnesses, without additional legislative authority, it’s unclear whether, under section 110 of the Clean Air Act, EPA can implement a comprehensive, region-wide trading program. I would note that the alternatives to trading under the Clean Air Act are unpalatable.
So to make things crystal clear, I intend to join my colleague Senator Voinovich, who has taken the lead in drafting legislation that would provide EPA with narrowly tailored authority to implement CAIR, or its replacement. This legislation will help remedy significant price erosion in the SO2 and NOx markets, and provide incentives for plants to install pollution control equipment. Many companies have delayed such projects because of uncertainty over the future value of SO2 and NOx allowances.
A comprehensive legislative plan is needed, but that will take time. So in the meantime, let’s lock in market certainty and clean air benefits for the next decade. As was true four years ago, Congress needs to act, or else uncertainty, confusion, and litigation will rule the day.