Environmental Law Series: The Clean Air Act

Episode Notes

Transcript

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Trish McCubbin: Air pollution is a funny thing because it blows across state lines. It moves, it moves with the winds and so it really was difficult for some states on their own to address air pollution without intervention by the federal government to coordinate the efforts of states.

Intro: Welcome to award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I have two books out titled ‘How to Get Sued’ and ‘The Sled’. Today on Lawyer 2 Lawyer, we’re continuing our series in environmental law where we cover cradle-to-grave treatment of chemicals and our laws on environmental biology.

Today, we’re turning our attention to the Clean Air Act. Clean Air Act also known as the CAA is a comprehensive federal law that regulates all sources of air emissions. The 1970’s CAA authorized the US Environmental Protection Agency, known as the EPA, to establish National Ambient Air Quality Standards, abbreviated as NAAQS or pronounced as NAAQS to protect the public health and the environment.

And to speak more on this topic, our guest today is Trish McCubbin. She’s a retired professor of environmental law at the Southern Illinois University School of Law. She’s an expert on the Clean Air Act and has written or spoken on many different aspects of the statute. She is the co-author of a chapter on Clean Air Act in the Law of Environmental Protection published by the Environmental Law Institute.

Before entering academia, Professor McCubbin was an attorney with the Environment and Natural Resources Division of the US Department of Justice where she received several awards for her distinguished service. Prior to joining the Justice Department, she was in private practice in Washington, DC and counseled clients on compliance with environmental laws.

Welcome to the show, Professor McCubbin.

Trish McCubbin: Thank you for having me.

J. Craig Williams: Well, if I may I’ll call you Trish.

Trish McCubbin: Please do.

J. Craig Williams: How did you get involved in environmental law?

Trish McCubbin: When I went to law school, I suspected I wanted to do a regulatory practice because I’ve always been fascinated by government and politics and those things come together in bureaucracies and also bureaucracies at least in the United States, they pretty much run our world. So I thought this is a pretty important field.

As to environmental law, I had a dear uncle who was an environmental advocate at the time and he suggested I think about it because he knew I was an outdoor person and I did a little dabbling and here we are 30 something years later, I loved it and if I can tell you I’d like to tell about why I do the Clean Air Act in particular, that’s really just a factor of timing.

I graduated from law school in May of 1990 and the modern version of the Clean Air Act, the most recent version of the Clean Air Act was passed in November of 1990 and my firm handed me the 300 or so pages and said read this and I became the firm’s expert on that. And one of the reasons I’m sharing that is because I’m a co-author on the book you mentioned and several of the co-authors tell the same exact story, we all graduated in 1990 and pretty much defaulted to this brand new statute.

J. Craig Williams: What happened was the Clean Air Act, I think was originally in 1970. How was it enacted?

Trish McCubbin: Yeah, let me back up and remind us that you are absolutely correct that the first modern Clean Air Act at the federal level was in 1970. Before that, we were using some rougher tools to address air pollutants. But we all have to remember that we’re addressing air pollutants because they are very harmful, we don’t see them a lot and so we forget this but air pollution can be acutely dangerous, immediately dangerous.

For example, in 1948 in a town called Donora, Pennsylvania, there was an inversion of the air pollution was caught under an air inversion, caught in the town for several days and it sickened thousands of people and killed dozens. And then in 1952, there’s the famous killer London Fog, where over the span of couple of days coal smoke was caught in the town because of the air inversion and that killed thousands of people.

And prior to say the 1950s, the 1960s, we did not have any regulatory tools at all. We were primarily using trying to use nuisance law of an old common law doctrine but that was not particularly effective.

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So in the 1950s or 1960s, as we tried to wrestle with two particular developments in our country. One development was the great expansion of cars and trucks and buses, and all of the air pollution that they bring. And the other development was the tremendous expansion of our industrial base, all the petrochemical facilities, all the power plants. Those two aspects really drove a lot of the air pollution increases in the United States.

Air pollution is a funny thing because it blows across state lines. It moves, it moves with the winds and so it really was difficult for some states on their own to address air pollution without intervention by the federal government to coordinate the efforts of states.

So in 1970, the very first modern Clean Air Act was adopted and this is the beginning of the modern environmental era generally, and I want to emphasize that the 1970 statute was highly innovative on several different levels but the key phrase to think about from the 1970 statute is the notion of something called cooperative federalism. This was a notion that the states and the federal government would work in concert, would work as partners, to address air pollution and the feds would set the end goal ostensibly and the states would choose the means to get to that end goal.

That phrase, the federal government chooses the end, the states choose the means, that’s a gross over simplification particularly in this day and age, when the federal government has many, many, many, many responsibilities. But in 1970, that cooperative federalism model was important, innovative and is still with us today.

J. Craig Williams: California is one of the primary examples of that I believe.

Trish McCubbin: That is correct. California indeed was one of those states that prior to the federal government really getting involved in 1970. California was a leader because it had so many cars, so many buses and because it had a great industrial base that was really requiring a lot of innovative air pollution regulation.

So California led the way and California still leads the way today in respects that you and I could talk about particularly on car emissions with the 1970 amendments. We had some innovations, then we had some in 1977 and then the most recent iteration was 1990. And by the time we get to the 1990 amendments in the modern statute that we have, it is a complex maze of programs.

I smile because I listened to the CERCLA program that you recently aired with Professor Kuh, which was fantastic, and CERCLA is a very innovative and very important statute, but in the statute book that I use it’s about maybe 100 pages its core provisions. The Clean Air Act does not have a single core. It has dozens of different types of programs, very distinct programs and I can give you an overview of those and it runs about 300 to 350 pages depending on print. So it’s quite a complicated statute and we can think about in a couple different ways.

J. Craig Williams: Well so far it’s been highly successful at least here in California spurred on by Jimmy Buffett song about Brown LA Haze we now have clean air.

Trish McCubbin: Yes, sir. We’ve reduced pollutants in this country since 1970 by everywhere from about 90%. If you think about car emissions, 90% reduction from cars through the mechanisms that the federal government uses to regulate tailpipe emissions. Our other common pollutants like something called nitrogen oxides or sulfur dioxides, which come primarily from burning fuels, we’ve reduced those from anywhere to 40%, 50%, 60%, 70%.

We’ve reduced the levels of pollutants that are called hazardous air pollutants that are particularly carcinogenic. We’ve reduced those a lot primarily because of something that was added in the 1990 amendments and we’ve really done a great job while maintaining a robust economy, really. We’ve not shut industries down as much as we might have imagined would be required to achieve these great reductions.

J. Craig Williams: Well there have been a number of furniture manufacturers in California that have moved out of state because of the restrictions on VOCs, volatile organic compounds.

Trish McCubbin: Yeah, yeah. And that’s actually, it’s interesting that you mentioned that because movement from state to state is one of those issues that cooperative federalism is trying to address, is trying to make sure that to some degree we level the plain field between the states such that the folks in California don’t necessarily have an incentive to move out of California and moved to Arizona or wherever they’ve moved.

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We don’t always do that and we can’t always accomplish that. But EPA has a responsibility for trying to regulate the entire nation to a minimal level of protective public health standards. And then the states choose how they’re going to get there and some are more aggressive than, like, California.

J. Craig Williams: Well, Trish, at this. We’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Trish McCubbin. She is retired as a professor in the Environmental Law at the Southern Illinois University School of Law and an expert on the Clean Air Act, which we’ve been discussing. We’ve talked about a lot of the reduction in emissions, but right now your state in Illinois and many of the mid-west and eastern states, certainly now Europe in a little while will be suffering from the fires and the smoke from Canada.

Trish McCubbin: Yeah.

J. Craig Williams: What can we do about that?

Trish McCubbin: Very interesting question. I don’t know if I have the answers, particularly as to the wildfires themselves, but it reflects an aspect of air pollution that it blows. And the wildfires are, if I understand correctly, being caused by natural conditions. It’s not as if there’s a polluting entity up in Canada that is causing us harm, purposely running a plant with excessive pollution. But it shows you that borders, sometimes they don’t– air pollution doesn’t respect borders, and so it blows down here.

And we have a similar issue in the United States with actual air pollutants from industrial facilities that are located in one state, like Texas or Louisiana. A lot of the petrochemical facilities down there, they are not controlled as much as some of the facilities in the eastern part of the United States. And the Texas and Louisiana air pollution blows to the east coast. So there’s currently — actually a lot of work being done by EPA to try to address what’s called interstate air pollution to, again, try to level that playing field between the various states to make sure that the citizens in the entire United States are protected from air pollution.

J. Craig Williams: That brings up the issue of monitoring. In the recent Biden-Harris administration announcement regarding monitoring.

Trish McCubbin: Yes. And part of the issue about monitoring, this is important. Part of the Biden-Harris push is to pay attention to communities that have suffered inordinately from being located near particularly polluting plants. Much of our air pollution, we’ve done a great job sort of at the national level trying to reduce pollution, but we have not necessarily done a great job addressing localities right next to the steel manufacturing facility or right next to the petroleum refinery. And so the push right now is important to try to address some environmental justice concerns about local communities. And monitoring is one of those keys.

J. Craig Williams: One of the aspects of that type of environmental justice is here in California, where there are a number of poorer and racial style communities that are adjacent to freeways.

Trish McCubbin: Yes.

J. Craig Williams: The CARB, the California Air Resources Board, has undertaken some projects to reduce diesel emissions. Can you talk about that?

Trish McCubbin: I can speak to what the federal government has done.

J. Craig Williams: Great.

Trish McCubbin: The federal EPA is also quite focused on reducing tailpipe emissions from vehicles, including trucks and cars and buses, and has added a new wrinkle on that, which is the federal government is trying to address greenhouse gases from these vehicles to address climate change. And that’s somewhat controversial because there’s a long history of GHGs and their role in the Clean Air Act.

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But it all fits in with the same model of trying to address environmental justice at the local level, thinking about the emissions that come out of tailpipes near freeways for the folks that live there, and also addressing it on a global scale trying to address greenhouse gases from vehicles and from power plants to address global climate change.

J. Craig Williams: There are a number of other kind of non-source point pollution things that we have experienced here in California. Underground methane releases. I know there are underground coal fires in Pennsylvania. What does the EPA do about those kind of natural things that we have occurring here in the United States? They’re all over the place.

Trish McCubbin: Yeah, they’re all over the place. And it’s a very interesting question because as much as the Clean Air Act is a tremendous maze and it has many different programs that are focused on a variety of sources, both the mobile sources, the cars, the trucks, the buses, but also snowmobiles and portable generators, there are those types of sources. Then the EPA can regulate stationary sources, buildings, plants, your local hospital with its boiler.

EPA doesn’t have a lot of authority to address underground quasi naturally occurring materials. Instead, what it has to do is it has to prevent those things from getting into the ground in the first place, either through its Clean Air Act authority by addressing, for example, leaking methane from pipelines. It can address that, or the federal government can address materials in the ground through other regulatory mechanisms. But you’ve hit on one of the holes, if you will, in this huge maze. It’s still not perfect. It’s not a perfect statute. And instead it’s focused on things that unlike the underground leaking.

J. Craig Williams: Right. Well, there have been some other adjustments that the Biden administration has been making through the Clean Air Act. And one of them is on fine particulate matter in soot, as they call it.

Trish McCubbin: Yeah, it’s soot. Yeah, exactly. That’s exactly right. This is interesting because your listeners, the soot issue is part of a program that has an awful acronym. Its full name is the National Ambient Air Quality Standards. Awful name, hard to understand. We acronym that as NAAQS, N-A-A-Q-S. But conceptually what this is, is one of the times in the CAA when Congress told EPA to use the best science to determine how little pollution of a particular pollutant, how little air pollutant we should have in our overall national air to protect public health. And EPA has set those national standards for six pollutants, which is actually not that many. Six pollutants including fine particles, carbon monoxide, nitrogen oxide, lead.

And those standards are set by the federal government. It’s a specific number that says there shall be no more than x number of particles in the air. And then the states have to work with the federal government to determine how they’re going to bring the air within their borders to that number. And periodically, EPA is required to revise the NAAQS. And that’s what is at issue in the SO2 issue and the soot, excuse me, not the SO2, the soot issue, the fine particles. There’s constantly a back and forth between EPA’s science advisories, the industries, the public health organizations about how low should EPA set that number and what does the science suggest. So we’re in the middle of reviews on those topics.

J. Craig Williams: What kind of controversies have we faced with the Clean Air Act? It hasn’t been an easy road.

Trish McCubbin: Not too. We have faced controversies really from day one, and many, many of them relate to that cooperative federalism model. What exactly is the federal power under this act? Because we have to remember that prior to 1970, we were using the rough tool of maybe common law or there were federal statutes on the books that tried to create incentives for the states to do by right, to do good, to try to address air pollution. But they were just incentives and they really didn’t work very well. And so 1970, Congress thought EPA really needed to step in. But gosh, where is the line between the Feds and the state governments from the get go? There was major litigation about what the EPA’s authority was. And today we’re still struggling with that. Your listeners may remember that last summer, right around this time of year, the Supreme Court issued a major decision in a case called West Virginia versus EPA that was touted by the media as shutting down EPA’s ability to address greenhouse gasses under the Clean Air Act.

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That was an overstatement but it was a case that said to EPA, “You have overstepped your boundaries by far when you attempted to regulate power plants under this one provision in this one particular manner.” And we’ve been wrestling with that cooperative federalism model throughout the entire history. We’ve also had lots of other issues about how to use science, what’s the discretion of the federal government as to identifying new pollutants to regulate? “Which pollutants are endangering?” which is the magic phrase. So, lots of controversy.

Craig Williams: Right. Well, Trish, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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Craig Williams: And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Trish McCubbin, and we’ve been talking about some of the controversies that the US EPA is faced in its administration of the Clean Air Act. One of them as you mentioned right before the break has to do with the kind of tension that exists between state and federalism, which has been since the federalist papers. But we’ve seen the recent decision in the last week by the Supreme Court coming out saying that the independent state legislature theory isn’t going to work. How do you see the tension between that divide between states and federalism driving the EPAs we move forward? And how has the change in administrations from the Trump administration with the Biden administration had effect on EPA’s regulations?

Trish McCubbin: Yeah, two very important questions. First, you’ve picked up on a nice theme in terms of the independent state legislature issue. Also, recently we had the immigration issue that said the state didn’t have standing to challenge an immigration policy by the Biden administration. And all of that plus the case that I mentioned from last summer called West Virginia, a lot of this is wrestling with the respective roles of the states and the federal government. And in the context of environmental law, the concept that’s being thrown around is a concept called the major questions doctrine. That’s really not just for environmental law.

But the Supreme Court has said recently that a regulatory body like EPA cannot take a step that is unheralded that is transformative of our society with major economic and political significance cannot do that unless congress has expressed clear intent for the agency to do that. And without that clear intent, the default is that it goes to the states. And that’s of a piece with the court trying to wrestle with what is the respective role of our two different governments in our federalist system. The other question that you asked which is very important is what happens or what has been happening with the change of administration?

You’ve been around a long time and as have I, you see that’s when there’s a change from a republican to a democratic or vice versa, there is often a reversal of positions. But we’ve had quite a number of those I think more than usual between Biden to Trump, because the Trump administration in turn did a lot of reversal of the Obama policies under the Clean Air Act. So, there’s a particular topic that’s been bouncing back and forth between the three administrations for 12 years now where there’s a yes, no, yes. And what the Biden administration is trying to do right now is trying to get a lot of rules in place and through judicial review, through court review, preferably before the Biden administration potentially is no longer with us, but that’s a lot of work to do in the next — what do we got, 18 months or so.

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They’re trying to work on a lot of different rules and time is short.

Craig Williams: That brings up a thought that I had about how people can get involved with this, how our listeners can find out about these types of things. First of all, how do we know what’s going on around us? Where is this monitoring that we talked about found on the internet? How can you easily go and look, “Here’s where I live and here are the political sources around me”?

Trish McCubbin: Yeah. I love this, because if we had not yet stumbled into this, one of my themes was really actually to talk about citizen involvement. First, one of the innovations under the Clean Air Act is a thing called continuous emissions monitoring or there’s a million acronyms in the CAA, which I just said one, the CAA, the Clean Air Act. Continuous emissions monitoring are also called CEMS. And that means that every minute, major sources are running monitors and they spit all their data out to your local or your state. The data is spit out to your state agency.

And so, one of the things to do is often a state will have a monitoring webpage or a FOIA webpage where you can find data about your local power plant or your local chemical facility. And I actually want to pause here. I often use those examples of power plant or petro chemical facility, but we have to remember that your local hospital also is probably regulated by the Clean Air Act, because it’s running a boiler that produces steam for sterilization and for heat. So, you got to think broadly when you think about the sources that are regulated by the Clean Air Act. So, your state environmental agency is a source of date on your local facilities. But also, various environmental organizations will often have monitoring sites.

The environmental defense fund I think runs a power plant monitoring web page, so you can look at what’s going on there. One of the reasons I love that you brought this up is because another innovation under the Clean Air Act and in subsequent environmental statutes is the notion of a citizen suit. Citizens, you and me or my grandma if she really wanted to, we could find information and we can bring information to the court system, and we can sue to enforce standards to our local facilities and get our fees paid if we prevail. So, that was an extraordinarily innovative mechanism identified in 1970 and it’s still with us today in a lot of different regulatory contexts.

Craig Williams: Well, Trish, it looks like we just about reached the end of our program. So, it’s time to wrap up, get your final thoughts as well as your contact information that the name our listeners want to reach out to you?

Trish McCubbin: So, to wrap this up, I would want to re-emphasize the Clean Air Act is quite complex. It has many, many different types of programs affecting many different types of entities and many different types of pollutants. And that’s at the federal level. And then there’s a whole another level of state programs that work in concert the federal government. So, it’s a fairly elaborate system, but it has worked well. We have done a really quite good job in the United States bringing our pollutant levels down substantially. We now have a new challenge or it’s been a long challenge, but we’re facing it anew now, which is focusing on maybe particular communities affected by freeway pollution or the local power plant.

So, that environmental justice factors is important, but we’ve done a great job. And if your listeners want to get in contact with me, I’d be happy to discuss this topic further. And they can reach me at my last name [email protected].

Craig Williams: Wonderful. Well, Trish, it’s been a fantastic pleasure to have you on the show. Thank you.

Trish McCubbin: Thank you, delighted to be here.

Craig Williams: Well, here are a few of my thoughts about today’s topic. I think of the most important parts of the Clean Air Act is its citizen participation section. As Trish mentioned, any citizen can sue. And I think there’s an important connection to be made here. You also have the ability to find out where you live, what air-polluting sources are around where you live, where the air generally flows, and what might be affecting your home and where you work. So, take a moment, get on the internet and find those sources of pollution. And if they’re polluting more than they should be, take them to court. You’ll get your fees paid and the world will be a better place.

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Well, that’s what I think about today’s topic. If you like my rant, let me know what you think. If you like what you’ve heard today on the podcast, please rate us on Apple Podcast or your favorite podcasting app. You can also visit us at the legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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