Better Tools Needed to Resolve Transboundary Pollution

I bumped into David Schoenbrod this week at the Federalist Society’s annual lawyers convention in DC, where we discussed the need for bold, new visioning and big thinking on how to fix some of our most pressing pollution problems.   We lamented the anachronisms of our national environmental laws, such as the Clean Air and Water Acts, adopted over 40 years ago, and longed for new leadership and political will to modernize and align them with the times and nature of environmental pollution.   It’s not a knock on the 92nd U.S. Congress, as they did the best they could at the time based on what they knew about pollution.   And these seminal laws, while having saved millions from premature death and having restored many ecosystems, are limiting in the same way that a harpoon is limiting in slaying a modern leviathan.

One such limitation is the flawed premise upon which pollution is understood and the legal construct of our laws  Herein, the Acts require the states to establish standards and thresholds expected to be achieved through controlling sources within their respective legal jurisdictions. Yet pollution is no respecter of state lines, and thus states are often faced with the difficult task and legal obligations of reducing environmental risks and harm from upwind and upstream states and sources, over which they have little or no recourse.

It is with this backdrop I share with you a recent article, written by David and Bill Pederson for ELI, titled The Overwhelming Case for CAA Reform (2013).   David, a Trustee Professor of Law at New York Law School and Visiting Scholar at the American Enterprise Institute, is also a founding member of the Breaking The Logjam project, whose scholarship advocates for constructing a new approach to U.S. environmental laws “in nonpartisan proposals for smarter, more flexible regulatory programs to protect the environment, encourage green technology, and stimulate the economy.”

In their paper, David and his colleague lay bare two fundamental misunderstandings about air pollution, upon which the CAA is enshrined.  One, the CAA erroneously assumes there is a safe level for all air pollutants (regulated under the National Ambient Air Quality Standards or NAAQS), and the provisions of the CAA require the states to engage in a sort of fiction and charade in order to carry out the Act’s mandates.   As the authors note,

Given the absence of scientific knowledge of air pollution in the 1970s, Congress required EPA to revise NAAQS every five years, and required states to revise their SIPs whenever EPA revised a NAAQS. The combination of unrealistic deadlines and NAAQS revisions has generated an endless stream of SIP changes for regulators to process.  But all recent studies suggest that the damage from one particular pollutant—fine particulates (PM2.5)—far exceeds damage from any other, and that there is no safe level for PM2.5 exposure. Adverse health effects (and environmental damage too) occur at all levels studied, though, of course, they get smaller as levels decrease.5 This is also true, to a lesser extent, of ozone, the other widespread NAAQS pollutant. The CAA strategy to “control quickly to a certain level and stop” does not fit such pollutants. Instead, addressing a pollutant that causes damage at all exposure levels calls for an ongoing effort to reduce those levels. It also requires a limiting principle to make sure that the costs of control do not exceed the benefits. The current CAA hides the need for such a limiting principle by instructing EPA to set NAAQS to protect health without regard to cost or practicality.  For pollutants with no threshold, that means that the Agency must set the standard on the basis of balance of health, cost, and other considerations, then cover up the fact that it took cost or practicality into account. Congress told the public that NAAQS would put pollution control on the basis of science rather than politics, but the very nature of the problem makes a decision based on pure science impossible.

The second misunderstanding, as noted above, is that pollution is a local problem.  We now know that not to be so, particularly these vexing transboundary problems.   Therefore, the authors argue that Congress must amend the CAA to better manage transboundary air pollution under regional cap-and-trade programs.  As the authors persuasively make their case, such a cap-and-trade framework was highly effective to reduce environmentally harmful acid rain under EPA’s acid rain program.

I’m not an air lawyer, but the parallels to water are similar.  Fortunately, the Clean Water Act imposes no similar limits on the use of regional cap-and-trade programs, although many impediments to their adoption still remain.  The national Total Maximum Daily Load program provides the perfect platform upon which regional  cap-and-trade solutions can be adopted.  As I’ve blogged previously  (see here), an interstate water quality trading program within the Ohio River Basin, whose focus is to reduce water pollution to the Gulf of Mexico from power plants, farmers, and sewage plants, is beginning to earn wide stakeholder support.   As well, there are efforts afoot to adopt interstate trading within the Chespeake Bay watershed.   The so-called “cap” of a TMDL serves as the threshold above which the addition of more pollution threatens human health and aquatic life.  Thus, under cap-and-trade approaches, the “cap” represents our understanding of pollution – based on a “pure science” approach – and the amount of pollution mother nature can safely absorb.

Transboundary water pollution remains an intractable and polyhedral problem.  The quality of water, for example, affecting the Chesapeake Bay is not only impacted by water pollutants emanating from the six headwater states (VA, MD, DE, PA, NY, WVa), but, in addition, air pollution from other states far away.  EPA estimates that upward of 75% of the atmospheric nitrogen deposition in the Bay watershed is from areas outside the immediate Bay drainage area.  In fact, the “airshed” which contributes to the Bay pollution spans west to Tennessee and north to Ontario Canada, and is 5.5 times the size of the Bay watershed itself.   Similarly, the source of pollution affecting air quality in each of the fifty states is often from other states, commonly referred to as transboundary air pollution.

The benefits of eventually aligning regional air and water cap-and-trade efforts would be far-reaching.  And although such ideas have been kicking around for a while, little support has been garnered by our nation’s elected leaders.  As hope springs eternal, I remain optimistic that with the fine efforts of those, like Schoenbrod, the anachronistic ways of the past will continue to yield to newer and bigger thinking.