In the Wake of the Energy Crisis: The Proposed Clean Air Act Amendments Mean More Dirty Air

It was perhaps inevitable that the collective trauma which Americans suffered during last winter's acute shortage of gasoline and heating fuel would generate the need to find a scapegoat. Different individuals and groups have chosen different targets. Some blame poor governmental planning and a lack of citizen concern, while others view the oil industry's soaring profits and questionable statistics as evidence of an artificially manufactured crisis designed to eliminate small competitors and drive prices up. Still others blame the environmental movement, although environmentalists in the past have found the goals of cleaning up the human habitat and conserving resources to be complementary.Many critics argue a direct relation between the proliferation of emission standards and controls and inefficient energy use, urging that the Clean Air Act was passed on the assumption that fuel shortages would not occur. Whether real, imagined, or contrived, the lack of such "clean" fuels as low sulfur oil and natural gas has greatly heightened interest in the rapid development of coal resources.

Each of the legislative proposals springing up in the wake of the gas shortages has involved measures intended to curtail petroleum use and encourage the use of coal. The Energy Supply and Environmental Coordination Act of 1974¹ passed by the House on May 1 by a vote of 349 to [4 ELR 10074] 43, is substantially similar to portions of the Energy Emergency Act² vetoed by President Nixon because of its provision for a rollback of oil prices, and to separate Administration proposals for amendments to the Clean Air Act. The Act passed by the House would both amend the Clean Air Act to allow suspension of emission restrictions and authorize the proposed Federal Energy Administration to force major fuel-burning installations to convert to coal as their primary energy source.

The House bill, originally Title II of the Standby Energy Emergency Authorities Act,³ comprehensive legislation designed to create and empower a Federal Energy Office, was introduced by Chairman Harley Staggers of the House Committee on Interstate and Foreign Commerce after President Nixon vetoed the prior energy bill. Title I of the original bill would have granted the Federal Energy Administration standby authority to impose gasoline rationing, establish allocation programs, require submission of energy information reports, and mandate coal conversion. The provisions of Title I dealing with coal conversion and energy information reports to the FEO became sections 10 and 11 of the House-approved bill. As passed, however, the bill deals primarily with amendments to the Clean Air Act. The measure's narrower focus reflects the Committee's decision to seek prompt passage of those portions of the earlier bill least likely to face serious opposition — the Clean Air Act amendments — and to resubmit more controversial elements as a separate bill.

Opponents of the proposed Clean Air Act amendments believe the Committee's splitting of the bill indicates that the amendments were being rushed through Congress as a form of rider to the measure creating an emergency energy authority. They argue that the issues are distinct and that the question of altering air quality standards is too important to be considered cursorily, without thorough hearings. This view was supported also by the Administration. EPA Administrator Russell Train proposed separate legislation including coal conversion measures, amendments of the Clean Air Act to allow use of coal, and a grant of discretionary authority to the Administrator to extend mobile source emission standards and transportation control deadlines where scheduled compliance would have entailed severe gas rationing and a drastic reduction of vehicle miles traveled.

HR 14368 — The Energy Supply and Environmental Coordination Act

Section 2 of the Act, entitled "Suspension Authority," amends § 119 of the Clean Air Act to allow the Administrator of EPA to suspend until June 1975 any stationary source or emission restrictions applicable to a fuel-burning facility that the Administrator finds is unable to comply because of the unavailability of clean fuels. The Administrator's decision to suspend would be exempt from the procedural requirements of all other laws, including NEPA, the APA, and unamended portions of the Clean Air Act. The amendment establishes its own requirements of notice and a hearing but these may be ignored by the Administrator for "good cause found and published in the Federal Register." Nowhere is the standard "good cause" defined, and like several other provisions in the amendments, it injects a great degree of uncertainty into the Act. Suspension by the Administrator is conditioned upon the establishment of interim regulations which must include at least reporting requirements and measures necessary to avoid "imminent and substantial endangerment to health." The standard used here is the same as that in § 303 of the Clean Air Act, which authorizes emergency action by the Administrator, and in fact the amended § 119 (h) expressly preserves the applicability of that section. Section 119 (a) (3) of the Act as amended would render any suspension inapplicable during any period that the stationary source could reasonably obtain clean fuels.

The amended § 119 (b) would require suspensions of stationary source limitations incompatible with coal use until January 1979 where a source was either prohibited by the Federal Energy Administrator, under § 10 of the Act, from using petroleum products or natural gas as fuel, or had voluntarily begun conversion to coal prior to the enactment of the Act and the FEA had decided that they should continue to use coal. The indices to be used to determine when such a source "began conversion" are provided by the new § 119(b)(1)(B), and include the conclusion of binding contracts for coal delivery, expenditure of "substantial" funds to enable coal use, and application for a variance from EPA. Section 10 (e) of the proposed Act would terminate the authority of the Federal Energy Administrator to issue or enforce orders prohibiting use of petroleum or natural gas as a fuel as of June 30, 1975. Presumably, therefore, after June 30, 1975 only those plants that fall within the scope of the § 119 (b) (1) (B) voluntary conversion prior to the enactment of the act would be eligible for suspensions until 1979. The language of § 119(b)(1)(B) is conjunctive; both prior voluntary conversion and a determination by the Federal Energy Administrator [4 ELR 10075] that continued coal use is appropriate would seem to be required. It is difficult to predict to what extent stationary sources will have complied with these necessary steps and just how many suspensions will be allowed up to the 1979 deadline.

Suspensions under the § 119 (b) (1) (B) authority may only be granted by the Administrator of EPA if emissions "will not materially contribute to a significant risk to public health." The amendments do not refer to the primary health standards already promulgated; rather, a new standard is substituted without inclusion of any of the decisions and guidelines established previously to delineate the parameters of the primary health standards. Administrator Russell Train, in testimony before the Committee introducing the bill, pointed out that the Clean Air Act amendments proposed by the Administration would require compliance with the primary health standards. He commented that he "would not say the language [in the act passed] … opens any wide door in the Act …" but that the "problem is we don't quite know what standard that is." "Itis neither a primary standard nor a secondary standard and does inject an ambiguity …" he stated, adding that "[we should] have to assume it is a somewhat more lenient provision." Administrator Train's interpretation is substantiated by comments in a Senate conference report dealing with an identical provision in the vetoed Energy Emergency Act. That report states:

What is intended is that some violation of the national primary ambient air quality standards can be permitted so long as any of the public would not be exposed to significant health risks.⁴

Nowhere has an explanation been given as to how "significant health risks" can be avoided while at the same time primary standards promulgated specifically to protect health are violated. The most rational response by EPA would be to set this standard at the level already determined after extensive research to be necessary to protect health under the primary standards.

In order to be allowed to burn coal, facilities granted suspensions would have to agree to take the necessary steps to insure compliance by 1979. The Administrator of EPA is required to prescribe such interim regulations as he determines are reasonable. During hearings before the House Committee on Foreign and Interstate Commerce, Chairman Staggers explained to several persons testifying that coal conversion will not mean temporary elimination of all emission restrictions. He stated that "This bill makes it necessary that they must use anything that is available up to the very most modern …" and that this "must be done before … [the coal is permitted to be burned]." Notwithstanding Representative Staggers' comments, environmentalists are justifiably concerned about what will be allowed under the proposed amendments; clarity is not one of its virtues. In reference to the substantially identical provisions of the vetoed energy bill Representative Landrum (D.-Ga.) commented that "[N]o one in the country would know what was in it, what he had to do or when to do it."

Section 119 (c) allowas the Administrator to establish delivery priorities for emission control equipment to ensure that regions with the most severe pollution receive such equipment first. That section also allows the Administrator preemptive authority to void any state or local law requiring sources to use emission control equipment in conflict with the federal priorities. Section 119 (e) prohibits state or local governments from requiring use of clean fuels where the suspension of standards under § 119 (a) was based upon the unavailability of these fuels. According to § 119 (a) (2) as it would be amended, the suspension authority granted to the Administrator may be exercised upon his own initiative without application by anyone. As pointed out by Representative Fraser (D.-Minn.) in the House debates prior to passage, the amendments as a whole alter the relationship previously established by the Clean Air Act between the federal and state governments. The act presently allows the states to adopt more stringent standards and deadlines. Section 101 (a) (3) in the preamble to the Clean Air Act establishes that "the prevention and control of air pollution at its source is the primary responsibility of States and local governments …" The proposed amendments would severely limit the power of state governments to handle their own pollution problems and alter the previously established congressional policy encouraging such initiatives.

Section 10 of the Act passed by the House requires the Federal Energy Administrator, after balancing on a plant by plant basis the environmental effects of burning coal against the need for its use, to prohibit use of other fuels. The Administrator is required to exercise this authority where coal use would have the least environmental effect. This provision does not, however, require consultation with EPA concerning the balancing of environmental effects and the need for coal use, or with regard to determining which areas would be least harmed by conversion. As the mandate of the Energy Administration is the reduction of oil consumption and the encouragement of coal use, decisions under this provision should be allowed only after coordination with the agency with expertise in environmental matters.The proposed amendment is seriously lacking in this respect. Furthermore, § 6 of the proposed Act, entitled "Protection Of Public Health And Environment," would in subsection (c) exempt any decision under § 10 from the dictates of NEPA, providing that for a period of one year after enactment, "no action taken under section 10 … shall … be deemed a major Federal action significantly affecting the quality of the human environment …" The amendment would require, instead of a NEPA § 102 (2)(C) statement, an "equivalent" statement to be prepared prior to a § 10 decision "if practicable" or "in any event within sixty days after…." The amendments are thus directly contrary to the policy expressed in [4 ELR 10076] NEPA of requiring agencies to look before they leap, and prohibiting after-the-fact justifications of decisions already made. The amendment's language attempts to avoid application of any judicial decision defining the scope of an adequate impact statement.

Attainment dates for the motor vehicle emission standards would be moved up one year by § 4 of the proposed Act. An additional year could be granted by the Administrator upon application by the auto manufacturers. A controversial amendment offered by Representative Louis Wyman (R.-N.H.) was rejected by the House by a 221 to 169 vote after extensive debate. The Wyman amendment would have designated thirteen metropolitan areas as requiring vehicular emission control; all other areas of the country would be unregulated, and state and local jurisdictions would be prohibited from enacting their own regulations. The amendment was opposed by such diverse organizations as a national organization of realtors, the auto industry, and the Administration. In House debate, Representative Wyman argued that the industry would need only one further step in the manufacturing process to add on emission controls to the cars destined for regulated areas, although the industry itself has pointed out frequently that incorporation of emission control systems entails fundamental differences of design. It was also noted that the Wyman amendment would, by allowing drastic increases in ambient air pollution, require much stricter land development controls. Since cars with catalytic converters will require unleaded gasoline, dealers in unregulated areas would have to maintain an inventory of unleaded gas for travelers in converter-outfitted cars, even though there would be no local market for such gas. Train testified to the Committee that without vehicular emission controls some 66 metropolitan areas, including 85 percent of the nation's population, would violate the health standards. The Wyman amendment, by allowing removal of existing controls in the new unregulated areas, could be expected to cause a reduction in fuel economy in modified cars.

Section 6 of the proposed act prohibits the Administrator from imposing parking surcharges unless they are adopted and submitted by a state as part of an implementation plan. Imposition of parking supply management plans would be postponed for one year. Critics of these provisions contend that reductions in automobile use through parking management programs and surcharges would result in fuel conservation and increased use of public transportation, and find it anomalous that such amendments should be included in legislation ostensibly aimed at achieving energy conservation. Administrator Train commented in testimony before the Committee that the provisions would be moot before enactment because he had already suspended or eliminated parking surcharges and parking supply management until 1975, and initiated a study of these areas.

The Clean Air Act Amendments Proposed By The Administration

The Environmental Protection Agency on March 22 sent a package of legislative proposals to amend the Clean Air Act to the Congress. Like H.R. 14368, these proposed amendments would allow suspension of emission restrictions to facilitate coal conversion. Temporary variances from emission limits would be allowed until November 1974 for sources using coal if such variances would not create an imminent and substantial danger to health. After November 1974 variances could be granted until 1980 as long as the health-based primary standards are met. The Administration's proposals would not be subject to the criticisms expressed above about the uncertain language of the bill passed by the House which requires compliance with a new standard rather than the primary health standard. On the other hand, the suspension authority under the Administration measure would exist for an additional year. The Administration proposal has a corresponding grant of authority to the President to require coal conversion and an exemption of such converting facilities from any emission restriction that would require use of another fuel. One significant difference between the two proposals is that H.R. 14368 would vest similar authority in the Administrator of the Federal Energy Administration, on grounds, as Representative Staggers put it, "the time has come now to stop giving the authority to the President; instead [we should] give it to an agency that has some responsibility to the Congress."

The Administration proposal does not require a voluntary conversion to coal prior to enactment as a prerequisite to continued suspension of emission limitations allowing coal use. Unlike H.R. 14368, which would terminate authority in the Federal Energy Administrator to mandate coal conversion as of June 30, 1975, the Administration legislation would continue this authority until 1980. On its face H.R. 14368 would seem to allow fewer conversions, as continued coal use under that bill would depend upon early voluntary conversion.

The Administration's proposal, like the other bill, would provide for EPA review of state implementation plans and revision of such plans where necessary to facilitate coal conversion. Both proposals would also extend the federal auto emission standards. The Administration's package includes, however, several amendments not considered in H.R. 14368. One would allow extensions of up to ten years, or until 1987, or the deadlines for attainment of the primary air standards where transportation control plans necessary for such attainment by the original deadlines would cause "serious adverse social or economic effects." One measure specifically contemplated by this provision would be severe gas rationing. Administrator Train in a letter to the editor of the New York Times indicated that extensions to obviate rationing would not "negate the obligation to implement the remaining [4 ELR 10077] measures of the plan on schedule." He stated that "[t]here is absolutely no though whatsoever that there will be automatic extensions of five or ten years (or for any other period…). In the few cases where an extension can be justified, [he] would expect that most of these would be for a year or two."

Another amendment proposed would allow the EPA to set design or equipment standards for sources where emissions standards are inappropriate or costly to enforce. This would include prescribing submerged fill pipes for gasoline station tanks. Under the authority of one amendment, the Administrator of EPA could approve temporary waivers or new source performance standards, so long as primary standards could be met, to enable testing of experimental and innovative control technologies. Section 6 of the proposals would add civil penalties to the criminal sanctions already in the Clean Air Act.

Two proposals included in the Administration package but not endorsed by Train, include allowances for indefinite use of intermittent control systems and a provision nullifying the Supreme Court's decision in Fri v. Sierra Club. The Court there affirmed, by a 4-4 vote, the D.C. Circuit's ruling in Sierra Club v. Ruckelshaus that the language of the preamble to the Clean Air Act requires the federal government to promulgate plans to prevent deterioration of existing air quality even though primary and secondary standards are met. Administrator Train's transmittal letter accompanying the proposed legislation indicates that although he does not support enactment of these two measures, they were included for consideration because of the views of other agencies.

Some Criticisms of the Proposed Legislation

Testimony before the House Committee on Commerce and debates on the House floor prior to passage of H.R. 14368 included several serious questions as to the wisdom of its enactment. It was noted that Congress' inclusion of secondary air standards in the 1970 Clean Air Act Amendments was an acknowledgement of the great cost of air pollution even apart from its effects on health. The President's Council on Environmental Quality calculated that for 1968 the American public paid about $16.2 billion because of pollution damage to crops, animals, materials and public health. Coal conversion can be expected to cause increases in sulfur oxides, nitrogen oxides, and particulate matter emissions. A report prepared by EPA found that power plants contribute the greatest quantity of sulfur oxides to the air of any class of pollutants, and reported that between 1940 and 1970, power plant sulfur oxide emissions increased from 2.9 to 19.6 million tons yearly. One environmental organization has calculated that even with continuous use of electronic precipitators functioning at 95 percent efficiency, emission from Consolidated Edison's Authur Kill plant in New York would increase from three tons to 29 tons daily if coal is burned. The American Public Health Association has indicated that burning high sulfur coal in urban areas can be expected to cause an increase of 20 to 40 percent in both morbidity and mortality of the 21 million persons living in urban areas who are at risk (persons suffering from cardiovascular disease, bronchitis, emphysema, other diseases, and old age). Using coal will increase by 50 percent pollution by nitrogen oxides, which, according to a study prepared for the New England Regional Commission, will cause increased deaths due to hypertensive heart failure and respiratory tract cancer.

Commentators have pointed out that the proposed legislation is actually unnecessary to accomplish its ostensible objectives. The President of the National Coal Association, Carl Bagge, testified before Senator Jackson's Interior and Insular Affairs Committee in hearings on the vetoed energy bill that increased coal production to meet the demands of coal conversion will take years to attain. During the time needed to develop new coal supplies, production of the emission control equipment required to allow coal use in many places under present emission standards would have increased sufficiently to make suspension of the standards unnecessary. The Clean Air Act as presently constituted would allow coal use provided emission controls are installed. The assured market that the coal companies require before making large capital investments could be accomplished by contracting now for coal delivery at the same time as contracting for emission control equipment. The proposed amendments unnecessarily encourage immediate coal conversion without corresponding emission controls.

Energy savings could be achieved through far more rational methods than extension of the auto emission standards. Significant evidence exists that the catalytic converter would in fact increase fuel economy. EPA's Russell Train has acknowledged that the major factor in fuel consumption in the United States is not emission standards but size, weight and optional equipment placed on automobiles. A reduction of auto weight alone to a 2,500 pound maximum could save 2.1 million barrels of crude oil per day in 1985, EPA has calculated. Automatic transmissions and power options cause losses in fuel economy; auto air conditioning alone can cause a fuel penalty 9 to 20 percent. The Consumers Union has performed tests that show that a fuel penalty as high as 53 percent can result from optional auto equipment.

The transportation plans and parking management plans that the proposed amendments would prohibit could save significant quantities of fuel. Funds obtained from parking surcharges, increased gradually, would both have encouraged the use of mass transportation and helped finance its improvement, with resulting reductions in fuel use and air pollution. The proposed amendments demonstrate a troubling set of priorities. While few would dispute the necessity of increasing the nation's energy supplies, the immediate benefits of shortened lines at the gas pumps should not blind Americans to the price they may pay, in shortened breath and shortened lives, for hasty weakening of air quality standards.

1. H.R. 14368. After this Comment was written, the Senate passed H.R. 14368 on May 14, 1974 by voice vote, agreeing to an amendment proposed by Senator Muskie. The Muskie amendments would require facilities converting to coal to comply with the primary air standards and would, by deletion of the language in § 6 of H.R. 14368, continue EPA's authority to impose parking surcharges. Another Muskie proposal would specifically exempt EPA from any duty to file impact statements on actions taken under the Clean Air Act for one year, in addition to the provisions in the House passed bill which would exempt the Federal Energy Administration from NEPA statements for one year where coal conversion has been ordered. See Comment, EPA to Prepare Impact Statements on Major Actions, Train Announces, 4 ELR 10059; and Statement of Policy Concerning EPA Preparation of Environmental Impact Statements, ELR 46051. The bill was referred to conference to work out the differences between the Senate and House versions.Whether the final bill will include the Muskie amendments is uncertain.

2. S. 2589.

3. H.R. 13834.

4. S. Rep. 93-663 (conference report), at 81-82.