New CCCL Paper Analyzes Clean Air Act Flexibility
CCCL has published a new white paper that summarizes our research into the permissibility of states pursuing an integrated, multi-pollutant, flexible approach to air quality planning. More specifically, the non-profit Regulatory Assistance Project (RAP) has recently proposed a new methodology, Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ), which is designed to allow states to engage in multi-pollutant analysis and cost optimization modeling to achieve efficient gains in air quality. At RAP’s request, we have undertaken an analysis of potential legal issues that might arise during the use of IMPEAQ.
The paper first addresses threshold issues: state authority under the Clean Air Act to voluntarily implement integrated planning using IMPEAQ and the permissibility of using a multi-pollutant approach to air quality planning. It then examines two key issues concerning emerging control measures: how states can use energy efficiency and renewable energy (EERE) programs in their State Implementation Plans (SIPs) and to what extent states may allow novel measures to satisfy the Act’s source-specific control technology requirements.
We find that the IMPEAQ approach would be generally permissible under the Clean Air Act and EPA policy, given the wide discretion states have to develop their own air quality plans and to choose the control measures they wish to use in their SIPs. Our analysis also suggests that there is room under the Act—at least as it is currently construed—for states to allow offsite EERE programs to substitute for site-specific technology controls in many instances. We note, however, that further EPA guidance could go a long way towards helping states better understand how EERE programs fit within the Act.
Although our analysis was dictated by the legal issues presented by IMPEAQ, its conclusions might be useful for broader policy discussions. In particular, the issue of flexibility is one that is surfacing frequently as EPA and states grapple with the issue of how to design greenhouse gas regulations for new and existing power plants (for details on the plans and timelines for these regulations, see our previous blog post here).