A Design Flaw in the Clean Air Act


The Clean Air Act has two kinds of standards. It sounds like having two kinds of standards should improve air quality more than a single standard. But in reality, one type of standard can result in canceling out the benefits of the other type. If you understand the statute, this is actually pretty obvious once you stop to think about. I have to admit, however, that I hadn’t stopped to think about it until today, even though I’ve taught this stuff dozens of time.

What are the two types of standards? First, the Act tells EPA to issue national air quality standards for major air pollutants and requires states (or as a back-up, the Feds) to create plans to meet those standards by certain deadlines. Second, it sets national pollution controls standards for new cars, factories, and power plants. The air quality standards are based on public health, while the national requirements for new sources are based on the best available technology for controlling emissions.

There are some significant pollutants that aren’t covered by air quality standards, most notably toxic chemicals and carbon dioxide. My argument doesn’t apply to them.

What’s the problem? The problem is that, if the air quality requirements are working, they cancel out the air pollution benefits of the technology requirements.

Here’s why: Suppose a state has to cut emissions by 10%. A new factory is being built. If it weren’t for the new source standards, it would add 2% to the state’s pollution. So now the state would have to cut 12% of its existing pollution. Instead, the new source standards cut the emissions from the plant in half, so it now only adds 1%. It sounds like that’s good for air quality, right? Well, not really. Now the state only needs to cut existing emissions by 11%, not 12%. In other words, the decreased pollution from the new source allows the state to ease up on controlling existing sources by exactly the same amount. The net effect or the new source standards on air quality is zero. On the other hand, the state might have been able to use lower costs reductions instead of the technology-based standards, so that’s a disadvantage.

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Legal Planet, 01-09-22
; https://legal-planet.org/2022/09/01/a-design-flaw-in-the-clean-air-act/