West Virginia Law Review

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Following some introductory remarks, this paper analyzes the issues of the acid deposition debate in two parts. First, it provides the electric utility industry perspective on the adequacy of the United States' current approach to air quality regulation. Second, it analyzes the recent litigation brought by the environmentalists in an effort to explain why their litigation strategy has been unsuccessful. Concern about the effect of the air pollution attendant with the industrial development of the United States has spawned massive efforts by the public and private sectors to establish and comply with requirements for environmental protection. Even though these efforts have covered emissions of pollutants such as sulfur and nitrogen oxides and particulate matter-pollutants that are related to the acid deposition issue-claims regarding the continuing effects of acid deposition caused by residual emissions of these pollutants have raised questions about the need for accelerating the reductions of the emissions of these pollutants that would be triggered by the existing Clean Air Act. "Acid deposition" is the term used to refer to deposition on environmental receptors of airborne acidic materials whether in the wet or dry form. Wet deposition of these materials is often called "acid rain." Because rain is naturally acidic and because the en- vironmental issue is the anthropogenic enhancement of that acidity, the general term "acid deposition" is used herein. Acid deposition can occur following, for example, the emission of sulfur dioxide (known as SO) or nitrogen oxide (known as NO,) gas as part of the coal combustion process in a power plant, the conversion of this gas in the atmosphere to a particulate sulfate (or nitrate), and the incorporation of these particles into rain by way of atmospheric process. For these processes, the SO2 (or NO,) emissions would be the precursors of acid deposition. The environmental policy issue raised by acid deposition turns on two questions. First, how much does the deposition of an acidic aerosol acidify the environment and produce secondary effects such as damage to fisheries in aquatic ecosystems? Second, does the value of reducing these effects-in comparison with the costs of achieving them-warrant acceleration of the reductions of acid deposition precursors that existing legislation would require? Environmentalists request that pollution reduction requirements be accelerated by ordering electric utility companies,3 a significant source of SO2, to install pollution abatement equipment to reduce the emissions of S02 or NO. or to convert to fuels of lower sulfur content. The electric utility industry counters by saying that the expense of granting the relief requested by the environmentalists is not justified by the environmental benefits that accelerating additional controls would produce in light of the continuing success of the Clean Air Act to control the precursors of acid deposition. The tension between these positions has molded a three-pronged federal approach to the acid deposition issue. The first element of this approach includes substantive pollution control requirements. In 1977, Congress adopted major amendments to the Clean Air Act to reinforce the comprehensive federal regulatory program for air quality. The Clean Air Act provides for the regulation of existing sources of air pollution (including the precursors to acid deposition) necessary to ensure protection of the public health and welfare (inceluding the effects of acid deposition) and for state-of-the-art controls on new sources to improve air quality even further as new sources replace retiring existing facilities. This program is implemented through a sophisticated federal-state partnership with the United States Environmental Protection Agency (EPA or the Agency) fleshing out the Clean Air Act in regulatory language and the states applying those rules to specific sources. Second, in an effort to determine whether the Clean Air Act was adequate to protect the public or whether further controls of the sources of air pollution were needed, Congress created the National Acid Precipitation Assessment Program (NAPAP) in 1980. This ten-year federal research program was established to coordinate the efforts of federal agencies related to acid deposition research and to provide the factual basis for decisions regarding the continuing validity of the Clean Air Act's programs. Finally, technological developments have not awaited the outcome of this federal research effort. To the contrary, the private and publi9 sectors have cofunded the Clean Coal Technology Program in an effort to advance the state of the art in pollution controls. These advanced technologies would be available for market penetration under the Clean Air Act, if not amended, or to provide techniques for compliance with any additional control requirements, if the Clean Air Act were overhauled. The environmentalists still question the adequacy of this program and have taken their case to Congress. Indeed, for more than ten years environmentalists have claimed that acid deposition has pushed the environment to the edge of catastrophic failure. The environmentalists therefore seek emission reductions that are even more stringent than the round of controls that followed enactment of the Clean Air Act in 1970 and toughened it in 1977. The environmentalists regard the Clean Air Act, NAPAP, and the Clean Coal Technology Program as inadequate by themselves. Arguing that EPA can be counted on to protect the environment through implementation of the current Clean Air Act and that NAPAP should be given the opportunity to justify a substitute for, or to exonerate the congressional judgments embodied in, the current Clean Air Act, the electric utility industry's response has two major tenets. First, the current Clean Air Act has significantly reduced emissions under the force of current regulations that seek to protect the public health and welfare. Thus, there is no environmental crisis that compels new legislation. Second, the electric utility industry argues that the public interest would best be served if future emission regulations were accomplished through continued reliance on the current Clean Air Act's mandate that EPA control emissions in a manner found necessary and appropriate. The industry has noted that the acceleration of the timing of the emission reduction through new legislation would be very expensive and would not have adequate environmental benefit. Consistent with this position, the electric utility industry has reduced emissions and has expressed its commitment to emission reductions as deployment of advanced technology is encouraged by market forces or as is ordered under the current Clean Air Act. To date, the industry argument has prevailed in Congress. Frustrated by this result, the environmentalists have resorted to litigation. The litigation strategy that they adopted has proved unsuccessful, in part, because the courts have not had jurisdiction to order the relief requested by the environmentalists. Instructed by the courts to pursue the administrative remedies made available to them by the Clean Air Act, the environmentalists have somewhat modified their approach to include use of the administrative process. Whether or when EPA or Congress will grant the environmentalists' requested relief is uncertain. What seems clear, however, is that the courts do not have the authority to interject themselves into the policy aspects of this public debate. How long the status quo will persist now that President Bush has called for adoption of acid deposition legislation remains to be seen.



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