September 13, 2016
Dear Mr. Billings and Mr. Jorling,
We were very sorry to hear of your dissatisfaction with Struggling for Air, as we are great admirers of your work and of the major public health victories you made possible. While we respect your opinions, we do feel that several of your criticisms are the result of misunderstandings regarding the content and intent of our book.
For example, we do not claim that the Clean Air Act has an explicit “grandfathering clause.” (That phrase appears only twice in the book, and one of those times is in a quotation from Senator Clark.) Instead, we argue that the Act engages in the practice of grandfathering, which it undeniably does. As the term is commonly used in regulatory policy literature, grandfathering means subjecting facilities that existed before a law’s passage to laxer rules than those constructed after the law’s passage. In the Clean Air Act, new sources are subject to two kinds of regulation for criteria pollutants: federal performance standards and state implementation plans. Existing sources, on the other hand, are subject only to state implementation plans. They are exempt from federal performance standards. This differential treatment is a form of grandfathering, as many legal and economic scholars have pointed out over the years.
Additionally, rather than giving “’short shrift” to the modification provisions of the Clean Air Act, we spend an entire chapter discussing them. (See Struggling for Air, pages 55-81.) In that chapter, we acknowledge that “in theory, treating modified sources as ‘new’ could have served as a de facto limit on the duration of grandfathering, preventing old plants from permanently avoiding compliance with federal performance standards.” (Pages 55-56.) But we find that, due to continued controversy over the meaning of certain statutory terms, the provisions were not particularly effective. (Pages 58-59.) We do not “exonerate EPA” for its role in creating these implementation difficulties. Instead, we acknowledge that the modification provisions’ failure to bring existing sources under control was largely a result of EPA’s “repeated capitulation to trade associations on questions of statutory interpretation,” rather than inherent problems with the statute itself. (Page 78.)
Similarly, we do not “ignore role of State Implementation Plans.” At the start of Chapter 5, we acknowledge the role that lawmakers expected these plans to play in regulating existing stationary sources:
[E]ven if existing sources weren’t subject to federal performance standards, they were hardly exempt from all regulatory control. The Clean Air Act’s most prominent element was a nationally uniform system of ambient air quality standards, the NAAQS, which were to be set at a level adequate to protect the public health. Thus, lawmakers expected that any dangers posed by emissions from a state’s existing sources would be addressed as part of the state’s plan for achieving the NAAQS.
(Page 82.) But we find that, in practice, State Implementation Plans didn’t successfully control many existing source whose emissions endangered public health, for two reasons:
First, many states simply failed to meet the statutory deadline for complying with ambient standards. Indeed, significant swaths of the country are still out of compliance for certain pollutants. . . . Second, the NAAQS system didn’t adequately account for the interstate nature of air pollution, whereby emissions originating in one state can cause the bulk of their harm in another. As a result, some states managed to achieve the ambient standards while leaving their most-polluting sources completely unregulated—not because the sources didn’t endanger public health but because their harms were felt in another jurisdiction.
(Pages 82-23.) As in our discussion of modification provisions, we are careful to acknowledge that EPA bears much of the responsibility for these NAAQS implementation problems. In particular, we highlight the agency’s initial, misguided endorsement of tall stacks and other “dispersion enhancement techniques” as substitutes for actual emissions controls, as well as its longstanding refusal to address interstate pollution by using the Good Neighbor Provision that was added to the Clean Air Act in 1977. (Pages 83-88, 90-98.)
Finally, we do not suggest that “Senator Muskie and his colleagues chose a health-based regulatory policy because they were ‘bribing’ their opponents.” The word “bribing” appears in a section of the book discussing the “public choice” theory of grandfathering, which provides that policymakers might rationally give existing sources an exemption from a new law in order to ease its passage. (Pages 40-41.) There is no mention of Senator Muskie in this section of the book. Furthermore, when we turn from describing legal scholars’ hypothetical justifications for grandfathering to the actual history of the Clean Air Act, we conclude that the Act does not fit the traditional “public choice” narrative. (Page 49-50.)
We do speculate that industry’s clearly expressed opposition to national emission standards played some role in Congress’s 1967 decision to rely on health-based ambient standards for pollution control, but we also acknowledge Senator Muskie’s genuine belief that ambient standards would be more protective of public health. (Page 51.) And we explain that many other non-industry stakeholders shared this belief, including the American Medical Association. (Pages 51-52.)
Ultimately, our aim in writing Struggling for Air was not to disparage the Clean Air Act or the dedicated people who crafted it and worked to secure its passage. On the contrary, we are great fans of the Act. As we note in the book, it has “yielded enormous dividends for the American public” over the past forty-five years, preventing hundreds of thousands of premature deaths. (Page 35.) At the Institute for Policy Integrity, we spend our days working to support the Act’s continued implementation—by petitioning EPA to issue new rules, commenting on proposed rules in hopes of making them stronger and more legally defensible, and defending finalized rules against unjustified legal attacks.
But no law is perfect. By exploring the origins and effects of what we believe to be the Clean Air Act’s flaws, we hoped to glean relevant insights for the policymakers who will craft future environmental laws and regulations. We deeply regret that this project has caused offense, but we also stand by its analysis and conclusions.
With best wishes,
Richard L. Revesz