Congress Fails to Amend the Clean Air Act or § 404 of the FWPCA

The proposed Clean Air Act Amendments of 1976, a product of almost two years of legislative effort, died on the last day of the 94th Congress, because of a Senate filibuster of the final version agreed to by Senate and House conferees. The legislation addressed numerous policy issues which have arisen during implementation of the original statute, including significant deterioration of currently clean air, the necessity for urban transportation controls, and control of air pollution from federal facilities. It also spoke to the general issue of extending the statutory compliance timetable for stationary sources and new automobiles where compliance with the deadlines currently imposed has proven impossible.

In a similar denouement, an amendment to § 404 of the Federal Water Pollution Control Act¹ aimed at modifying the Army Corps of Engineers authority for regulating dredge and fill activities in all waters of the United States also died when House and Senate conferees failed to agree on a conference report for the measure. Defeat of the § 404 amendment leaves intact the current regulatory structure, generally regarded as comprehensive and workable by environmentalists.

Clean Air Act

Several factors contributed to the death of the Clean Air Act amendments. The House and Senate bills, drafted in 1975, were both subjected to intense lobbying and went through more than 130 subcommittee markup sessions before even reaching the stage of full committee consideration. The primary cause, however, was a series of delays which plagued the legislative process throughout.

The Senate bill² was finally passed by a 78 to 13 vote on August 5, 1976. The House, working on its own version³ of the legislation, failed, apparently because of a decision by the leadership against giving the measure scheduling priority, to pass its bill until September 15. Because the two bills diverged on a number of major issues, including automotive emissions standards and criteria for preventing significant deterioration of air quality in currently clean areas, the conferees were not able to produce a final conference report until September 30, one day before Congress was to adjourn.

During the frantic last hours of October 1, the Senate was prevented from ratifying the report because of a filibuster led by Senators Jake Garn (R-Utah) and Frank Moss (D-Utah) and supported by the automobile manufacturers and various stationary-source industries such as the electric utilities. One of the prime objections to the measure expressed during the filibuster was that the report had not been made available in sufficient time for senators to know the exact provisions on which they were being asked to vote.

The compromise measure⁴ agreed upon by the conferees would have codified judicial interpretations⁵ of the Act requiring the use of continuous emissions reduction technology, e.g., scrubbers, and reversed another judicial determination⁶ that federal facilities need not comply with state pollution control permit procedures. The legislation would also have required the Environmental Protection Agency to conduct a study of stratospheric ozone and to develop regulations for the control of any substance, such as fluorocarbons, which may affect ozone levels so as to endanger public health.In addition, the proposed amendments would have allowed further extensions of the statutory compliance deadlines for stationary sources, permitted a five-year extension of the date for attainment of primary air quality standards in metropolitan areas where transportation controls are necessary, and extended the 1977 automotive standards for carbon monoxide and hydrocarbon emissions for one additional year, with more stringent standards coming into effect for model year 1979 as opposed to 1982 in the original House bill.

Significant Deterioration

The most controversial portions of the conference report were the provisions for the prevention of significant deterioration of air quality in areas now cleaner than the national ambient air standards require. The proposed legislation would have established a three-class system much like the one currently embodied in EPA's nondegradation regulations.⁷ Only minimal increases over baseline pollutant levels would have been allowed in Class I areas, which automatically include international parks, national wilderness areas and national memorial parks of more than 5,000 acres, as well as national parks of more than 6,000 acres. All other areas would initially have been placed within Class II, where more substantial pollutant increases over baseline levels would be allowed. The states would then have had the power to reclassify these areas according to certain procedural requirements. Air quality in Class III areas could have been downgraded to the national secondary standards, or in some cases to 90 percent of the primary standard.

The legislation also would have inserted a provision for attorneys' fees awards in citizen suits brought under § 307,⁸ and it would have remedied an apparent gap in the statute which prevented suits challenging yet-to-be-constructed emissions sources for prospective violations of the Act.⁹

[6 ELR 10247]

Congress' failure to enact the Clean Air Act amendments after bringing them so close to fruition will have three important effects. The various ad hoc judicial decisions interpreting ambiguous areas of the statutory scheme will remain the governing authority on many of the numerous policy issues which have arisen during the Act's implementation. Second, EPA's regulations for the prevention of significant deterioration which were recently upheld on judicial review¹⁰ will continue as the operative provisions in this area without explicit statutory support or guidance.

Third, the automobile manufacturers, who threw their weight against the conference report because it granted only a one-year delay in applying the more stringent 1978 hydrocarbon and carbon monoxide standards, are now faced with the legal requirement of meeting those more stringent standards next year, a task they have flatly stated is impossible. Some modification in the statutory requirements thus seems necessary before the 1978 models begin to appear in 1977 or each new car produced which cannot meet them will be a violation of the Act. Senator Edmund Muskie (D-Me.) and Congressman Paul Rogers (D-Fla.), before whose subcommittees any new amendments must germinate, have already indicated¹¹ a disinclination to let the auto companies off the hook by passing an emissions standard extension early in the next Congress. The text of the conference version would seem the logical starting place for legislative action next session, but given the ill will generated by the events of October 1, the prognosis for amendments to the Act in 1977 is: combative.

FWPCA § 404

Both the House and Senate voted to modify the dredge and fill regulatory structure currently embodied in § 404 of the FWPCA, but the two Houses could not reach agreement on the terms of such an amendment. The House and Senate took different approaches to effect such a change. The House bill¹² basically attempted to restrict the scope of § 404 by narrowing the definition of "navigable waters." The Senate bill,¹³ on the other hand, would have reduced the Corps' dredge and fill jurisdiction to traditionally navigable waters, but transferred to EPA and the states through the § 402 NPDES permit program the authority to control dredge and fill activities in all other waters covered by § 404.

The conferences was unable to bridge the gap between the two measures and stalled after three meetings. The conferees did agree in principle that implementation of Phases II and III of the Corps' regulatory program, which represent the sequential expansion of the program's scope beyond the Corps' traditional jurisdiction, should be frozen pending congressional action on the § 404 issue. They reached an impasse, however, on the question of how long a moratorium should last, with the House holding out for a three-year delay and the Senate standing firm for a length of only one year.

Unlike the defeat of the Clean Air Act amendments, the failure of the § 404 amendment to pass will disappoint primarily those who wanted to weaken the existing regulatory structure. Section 404 has been a center of controversy even since a 1975 court decision¹⁴ interpreted the provision to expand the Corps' dredge and fill jusridiction to all "waters of the United States." After initially fighting this expanded regulatory responsibility,¹⁵ the Corps issued regulations¹⁶ establishing a comprehensive program for protecting the nation's wet-lands from dredge and fill activities. In the wake of congressional failure to agree on an amendment, this strong regulatory structure remains intact.¹⁷

1. 33 U.S.C. § 1344, ELR 41124.

2. S. 3219, 94th Cong., 2d Sess. (1976).

3. H.R. 10498, 94th Cong., 2d Sess. (1976).

4. The Conference Report is printed at 122 Cong. Rec. H11959 (daily ed. Spet. 30, 1976).

5. See, e.g., Kennecott Copper Corp. v. Train, __ F.2d __, 6 ELR 20102 (9th Cir. Nov. 28, 1975), cert. denied, 96 S. Ct. 1665 (1976); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 5 ELR 20532 (6th Cir. Sept. 4, 1975), cert. denied, 96 S. Ct. 1663 (1976).

6. Hancock v. Train, __ U.S. __, 96 S. Ct. 2006, 6 ELR 20555 (June 7, 1976).

7. 40 C.F.R. §§ 52.01(d), (f) and 52.21; 39 Fed. Reg. 42509 (Dec. 5, 1974), as amended by 40 Fed. Reg. 2802 (Jan. 16, 1975), 40 Fed. Reg. 25004 (June 12, 1975), and 40 Fed. Reg. 42011 (Sept. 10, 1975).

8. 42 U.S.C. § 1857h-5, ELR 41218.

9. See Citizens Association of Georgetown v. Washington, __ F.2d __, 6 ELR 20524 (D.C. Cir. May 25, 1976).

10. Sierra Club v. EPA, __ F.2d __, 6 ELR 20669 (D.C. Cir. Aug. 2, 1976).

11. Letter from Sen. Edmund S. Muskie and Cong. Paul G. Rogers to Russell E. Train, Administrator, EPA (Oct. 8, 1976).

12. H.R. 9560, 94th Cong., 2d Sess. (1976).

13. S. 2710, 94th Cong., 2d Sess. (1976).

14. Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 5 ELR 20285 (D.D.C. Mar. 27, 1975).

15. See Comment, Comprehensive Wetlands Protection: One Step Closer to Full Implementation of § 404 of the FWPCA, 5 ELR 10099 (July 1975).

16. 33 C.F.R. § 209.210, 40 Fed. Reg. 31320, ELR 46319. For a summary of the regulations, see Comment, Corps Issues Interim Rules for Discharges of Dredged and Fill Materials, 5 ELR 10143 (Sept. 1975).

17. President Ford ordered a 60-day delay in the implementation of Phase II of the regulations on July 2, but this executive moratorium has now expired and the Corps is moving ahead with its expanded regulatory program.