A book coedited by RFF Senior Fellow Dallas Burtraw finds contemporary relevance in the decades-old environmental bill.
In a series of workshops organized by the American Academy of Arts and Sciences and initially led by former RFF President Robert Fri, scholars convened from across disciplines to study policies that embodied elements of both durability and adaptability. They hoped to find legislation that balanced the two seemingly contradictory ideas—the ability of a law to persist through upheaval, and the ability of a law to shift course as necessary. These collaborative workshops also revealed the importance of offering flexibility in meeting regulatory standards. While the participants cast a wide net, considering legislation that covered issues from healthcare to technology, the Clean Air Act of 1970 emerged as an ideal case study for analyzing all three of these concepts.
And that was the origin of the project that became a book. Lessons from the Clean Air Act: Building Durability and Adaptability into US Climate and Energy Policy, published in April last year, is an ambitious collection. A compendium of contributions from legal scholars, economists, political scientists, and environmental policy experts, the book surveys key lessons gleaned from one of the most significant environmental laws in American history.
“We realized that we had, in the Clean Air Act, a broad portfolio of policy designs that were related to each other and exhibited different degrees of durability and adaptability and flexibility,” says Dallas Burtraw, the Darius Gaskins Senior Fellow at RFF who coedited the book with UCLA Law’s Ann Carlson.
We realized that we had, in the Clean Air Act, a broad portfolio of policy designs that were related to each other and exhibited different degrees of durability and adaptability and flexibility.
The Clean Air Act of 1970 (CAA) is an uncommonly sweeping piece of legislation: over its half-century history, the act has been used to enforce limits on both stationary and mobile sources of pollution; set standards for the chemical composition of fuels; impose maximum concentrations of key pollutants, from carbon monoxide to lead to particulate matter; catalyze markets to protect public health; and much more.
The act itself has endured a number of changes, too: contemporary regulations under the CAA are based on an early, mostly limited version of the law passed in 1963; substantive revisions in 1970, 1977, and 1990; and an evolving understanding of air pollution, public health, and the regulatory power of the US Environmental Protection Agency (EPA)—all of which have impacted how the law is implemented.
This is all to say that the CAA is unique in its scope, its ambition, and its ability to withstand change over the decades. And as the book makes clear, studying the law’s historic successes—as well as its deficiencies—offers pivotal lessons to policymakers.
“No major environmental legislation has passed Congress since 1990. As a result, we need to think hard about building durability, adaptability, and flexibility into legislation in the first instance, since we may not get another bite at the apple,” Carlson says.
Durability
As Burtraw and Carlson write in their introduction to the book, “durability” does not mean that a law remains fixed in time. Rather, durable legislation “continues to accomplish the objectives for which it was adopted” and “remains effective after the coalition that led to its adoption … no longer holds the reins of power.” A law can be durable even if implemented in different ways, years after its passage—if policymakers, private sector innovators, and the public trust that the law is fulfilling its initial goals.
One example of remarkable durability, as political scientist Barry Rabe explains in the book, is the law’s unique treatment of automobile emissions in California. The arrangement, known colloquially as the California waiver, grants California the authority to propose regulations on automobile pollution more stringent than federal prescriptions. This framework emerged because of California’s unique problems with air pollution and its long history of environmental legislation—state laws passed in 1947 and 1960 are considered “the world’s first auto emission regulations.”
Under the arrangement, California can apply for a waiver to implement stricter regulations—and, as of 1977, other states can choose to implement California’s standards. Historically, the federal government has approved the overwhelming majority of California’s waivers and has implemented new federal guidelines based on programs first piloted in California, including rules on sulfur dioxide pollution and standards for low-emission vehicles.
A regulatory regime “likely without parallel in the United States, both in environmental policy and in other areas of regulatory federalism,” according to Rabe, the California waiver has nevertheless persisted. At its most complex, it creates a two-part national market for vehicles: the system streamlines standards for automobile manufacturers, rather than letting every state impose their own standards, and it allows new regulations to be tested statewide before expanding nationally, if the new regulations come at minimal cost.
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Some regulations under the CAA have been durable—sometimes to the detriment of the law’s success. RFF University Fellow Joseph E. Aldy explains how Congress’s 2007 revamp of its Renewable Fuel Standard program has prompted few environmental benefits, for instance. The new regulations set volume requirements for low-carbon biofuels that increase each year, but they also allow EPA to waive a year’s renewable fuel standards if they impose a significant economic burden, or if there is “inadequate domestic supply.”
The goals laid out in the statute have been infeasible: according to Aldy, US production of cellulosic ethanol fell below five percent of the statutory goal for 2016. The Government Accountability Office has deemed the statute’s ultimate goal of selling 36 billion gallons of renewable fuels in America by 2022 to be unlikely, too. EPA thus has had to issue frequent revised guidelines for biofuel production, leaving automobile manufacturers unsure about which standards they are expected to meet each year. The revamped Renewable Fuel Standard regulations, rather than offering trustworthy standards and encouraging innovation in low-carbon fuels, have been unpredictable, provoking frequent calls for legislative reform.
Adaptability
Brown University’s Eric Patashnik defines “adaptability” as “the capacity of policymakers to recalibrate policy commitments and programs through midcourse adjustments.” The CAA’s adaptability—most exemplified by EPA using its authority under the act to continually update environmental rules—has proved especially important, given the infrequency of significant legislative revisions.
UCLA Law Professor William Boyd asserts that the CAA’s National Ambient Air Quality Standards (NAAQS), which impose limits on “criteria pollutants” deemed by EPA to threaten public health, “can make a strong claim to being the most ambitious and successful major program in US environmental law.” And the program’s durability can be attributed at least in part to the discretion granted to EPA administrators.
The original CAA in 1970 mandated that EPA begin regulating six key “criteria pollutants” based on the best available scientific knowledge of their health impacts. As scientists outside the agency have improved their understanding of how air pollutants threaten public health, EPA has modified the standards accordingly. Lead was added as a new criteria pollutant in 1976, restrictions on particulate matter have become more specific, and, as recently as 2015, the NAAQS program reduced its acceptable level of ground-level ozone from 72 to 70 parts per billion—all without the need for congressional approval.
As with the 1977 amendments, EPA makes adjustments to NAAQS based on a mandated system of review every five years. These amendments also created the Clean Air Science Advisory Committee, tasked with recommending changes to the regulations for criteria pollutants and evaluating the effectiveness of the review process.
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In sum, the program has dependable procedures to respond to updates in scientific knowledge and make necessary adjustments to protect public health—but also constrains EPA’s power by requiring sufficient scientific evidence to support adjustments. Allowing some (but not too much) discretion has largely proven successful: according to Boyd, “aggregate national emissions of the six criteria declined by an average of 71 percent while … gross domestic product [grew] by 246 percent” from 1970 to 2015. Other design elements across various CAA programs place similar constraints on regulators, from formal fact-finding procedures and expert review committees to opportunities for citizens to bring lawsuits.
Florida State University’s Hannah Wiseman shows that the CAA has not been universally successful at prescribing clear rules while still allowing adaptability. Acknowledging that the law’s regulation of stationary sources remains a “remarkable achievement,” Wiseman nonetheless finds that 1977 reforms, which imposed stringent rules on new stationary sources of emissions in an effort to meet NAAQS, created a rigid, bifurcated regulatory regime, wherein old sources and new sources receive different treatment.
This system, known as New Source Review, set standards that new proposed projects to build stationary sources of criteria pollutants had to meet before construction. But the law applied only to “major new sources,” meaning that older sources were not subject to New Source Review regulations, unless a “major” renovation was planned that would significantly increase emissions. This inflexible arrangement, in which EPA is incapable of adapting to contemporary needs and regulating older sources of pollution as stringently as newer sources, ultimately “detracts from progress under the act.”
Flexibility
Burtraw and Carlson conceptualize “flexibility” as easing the burden of compliance—giving energy producers options as to how to reduce emissions through incentive mechanisms, rather than prescriptive regulations. Flexible legislation allows those affected to draw on their own knowledge and work within their own capabilities to meet standards.
Patashnik describes a number of early CAA programs that utilized market mechanisms, including the Acid Rain Program, now “universally regarded as an environmental success story.” Sulfur dioxide and nitrogen oxide emissions react with other atmospheric chemicals and fall to the Earth again as acid rain, threatening ecosystems and human health. Before lawmakers took action, acid rain was largely attributable to long-running coal plants in the American South and Midwest, which burned high-sulfur coal. But these plants—nicknamed the “Big Dirties”—threatened more than just nearby ecosystems, as acid rain can fall hundreds of miles away from pollution sources.
As part of the 1990 amendments, Congress established a sulfur dioxide allowance trading program, which set ambitious emissions reductions targets affecting all continental states. The policy phased in slowly, initially affecting only 110 power plants in 1995 and later expanding to include more than 3,000 by the year 2000. EPA granted each of these plants “allowances,” which they could buy from or sell to other plants. The flexible system reduced costs for polluters, who could prioritize the emissions reductions technologies that made the most sense for their companies, while also incentivizing innovation. Energy producers experimented with cost-effective coal mixtures and constructed more efficient “scrubbers” to desulfurize coal. Consequently, even as electricity production from coal-fired power plants increased 25 percent from 1990 to 2004, emissions fell by five million tons.
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The CAA also illuminates the drawbacks of too much flexibility. Aldy describes how the 1990 amendments created the reformulated gasoline (RFG) program, which aimed to reduce volatile organic compounds in gasoline, which can cause ozone pollution. The policy mandated that producers residing in designated counties reduce aggregate volatiles in their fuel by 27 percent and allowed other counties and states to opt in. As of the book’s publication, the RFG program impacted 30 percent of the American market in the summer, when ozone pollution is at its worst.
Notably, under the RFG program, all volatiles are treated the same, so producers have discretion to decide which types of volatile chemicals to reduce. The problem with this flexible arrangement is that not all volatile chemicals are equally likely to create smog; thus, the large majority of refiners have reduced concentrations of less reactive volatiles, complying with CAA regulations but without significantly reducing emissions. The only state to see significant reductions in ozone concentrations is California, largely because the state has enacted fuel controls more stringent than the national RFG program requirements.
The Future
One lesson from the book is that the scientific understanding of air pollution is constantly evolving—so it’s no surprise that since the book’s publication just last year, new policy developments have shifted how air pollution is regulated.
For instance, Rabe alludes to “continuing support for California’s efforts to continually push the envelope” on automobile emissions rules. However, more recently, the state has encountered resistance from the federal government. Last September, the Trump administration moved to revoke California’s ability to set more ambitious restrictions on automobiles than federal standards, prompting a lawsuit from California and 22 other states. This provision of the CAA, noted for its durability, nonetheless faces new threats.
“It may be up to the courts to protect California's special role, or a new administration may recognize the extraordinary benefits the country has received by allowing California to lead under the waiver provision,” Carlson says.
Importantly, the CAA does not allow so much adaptability that any administration can restructure regulations as it sees fit. The book emphasizes that much of the act’s durability stems from the processes encoded in the law, which ensure that any proposed regulatory change has been thoroughly vetted and empirically justified. That lesson holds true today, especially as data cited by EPA officials in scientific reviews becomes fodder for lawsuits against proposed regulatory changes. For instance, a long-awaited curtailment of fuel efficiency standards was delayed, in part because internal findings from EPA officials found that the rule would harm consumers.
Meanwhile, in Oregon, lawmakers walked out of the state legislature for the second year in a row to protest a bill that proposes economy-wide carbon pricing, which would help Oregon make meaningful reductions in greenhouse gas emissions. Burtraw notes that the recent walkout reflects continuing challenges for states, which largely operate at a “decentralized level without federal coordination.” But he emphasizes that the prognosis is hardly catastrophic, as other states have made progress in implementing ambitious environmental agendas. Virginia and New York have mandated a transition to clean energy, for example, and other states look poised to follow their lead.
“It’s not that the Clean Air Act gave states the authority to regulate—it required them to regulate,” Burtraw says. “It empowered states and put them in a leadership role through the framework of ‘cooperative federalism,’ putting a strong social goal in place and leaving states responsible for implementation and enforcement.”
Carlson agrees. “We get a lot of creativity coming out of state policymaking that might not occur if all regulatory power were consolidated at the federal level,” she says.
As Burtraw and Carlson explain in the conclusion of the book, “The transition to a largely decarbonized economy in the next four decades will be enormously complex and massive in scope.” The CAA, as a historically successful environmental law, provides a literal legal framework under which future regulations can proceed, along with a rich history of regulations succeeding, failing, and adapting, which can guide policymakers as they craft contemporary legislation with similarly sweeping aims. Some CAA programs might need revision, but through new administrations, new regulations, and new scientific assessments of the impacts of hazardous air pollutants, the CAA has persisted.
“There was a lot of uncertainty when the Clean Air Act was passed, about how and if those goals could be achieved,” Burtraw says. “But what enabled progress to happen was this machinery of process that had been built into the Clean Air Act, which just kept driving things forward.
“I like to say that the Clean Air Act is like a freight train: it’s slow, but it’s very hard to stop.”
A version of this article appeared in print in the May 2020 issue of Resources magazine.
