Amending the Clean Air Act to Establish Democratic Legitimacy for the Residual Risk Program
By Patricia Ross McCubbin
INTRODUCTION
Section 112 of the Clean Air Act directs the U.S. Environmental Protection Agency (the EPA or the Agency) to regulate nearly 200 hazardous air pollutants emitted by a wide variety of industries.1 Many of these pollutants, such as dioxin and benzene, are known carcinogens, while others, such as mercury, may cause adverse neurological, reproductive, or developmental effects. Because millions of individuals are exposed to emissions of these hazardous air pollutants from tens of thousands of industrial sources, EPA's implementation of section 112 has a very real impact on the nation. While over-regulation could impose significant, unnecessary economic burdens on large sectors of the nation's economy, under-regulation could pose significant risks to the public health.
Of the provisions in section 112 created by the 1990 Amendments to the Clean Air Act, the Residual Risk Program (established by section 112(f)) is the only “health-based” regulatory mechanism. The intent of the program is, first and foremost, to guarantee public safety; it directs the EPA to assess the health risks posed by hazardous air pollutants and set emission standards stringent enough to guarantee that the public is amply protected. While other provisions of section 112 require emissions standards to reflect the pollution control technologies currently implemented by the best performing members of an industry, the Residual Risk Program functions as a health-based “safety net” to ensure that those “technology-based” emission standards do not pose a threat to the public health.
Although created in 1990, the Residual Risk Program relies on an interpretation of statutory language that has been a part of section 112 since its inception in 1970. The program requires, as section 112 has required for over three decades, that the EPA restrict emissions of hazardous air pollutants from industrial sources so as to “provide an ample margin of safety to protect the public health.” While the precise meaning of that language has evolved over the past thirty years, it has always been based on the presumption, established by Congress and the U.S. judiciary, that it is possible to determine “safe” emission levels solely by investigating the dangers that hazardous air pollutants may pose to the exposed public. Irrelevant to that determination, and therefore precluded from it, is any consideration of the cost and feasibility of reducing emissions. In other words, an industry's ability to achieve “safe” emission levels by adopting available, cost-effective pollution control measures is not a factor to be considered in setting these standards.
Unfortunately, however, that underlying presumption is fundamentally flawed. It is simply not possible to meaningfully determine “safe” emission levels of hazardous air pollutants based solely on the risks that those emissions may pose to the public health. Although not intuitively obvious, without considering the cost and feasibility of regulation, a determination of “safe” emissions based on the risk to the public health can only be arbitrary. Consequently, the Residual Risk Program, because it is based on this incorrect presumption, demands the impossible from the EPA. It requires a meaningful determination of “safe” emission levels while precluding a consideration of the factors necessary to make that determination.
The EPA will soon begin to set emission standards under the Residual Risk Program and, in an earlier report to Congress, the Agency outlined its proposed implementation of the program. The report indicates that, consistent with the unrealistic expectation of Congress and the courts, the Agency will determine “safe” or “acceptable” emission levels of hazardous air pollutants based solely on the risk posed to the public without any consideration of the cost and feasibility of reducing emissions. If implemented in this manner, the Residual Risk Program can only result in emission standards that are, at best, arbitrary. However, based on the Agency's regulation of hazardous air pollutants before the 1990 Amendments were enacted, it is reasonable to conclude that the EPA will attempt to demonstrate its conformity to the impossible mandate of the statute, but will actually base its determinations on sub rosa considerations of the cost and feasibility of reducing emissions.
To act with democratic legitimacy, the EPA must ultimately be accountable to the public. The Agency's sub rosa considerations defeat that accountability by hiding the bases for its decisions from meaningful public review. Therefore, to correct the Residual Risk Program's underlying flawed presumption and curtail the *6 EPA's future reliance on sub rosa considerations, section 112(f) of the Clean Air Act should be amended to allow the Agency to consider cost and feasibility when it determines “safe” emission levels for hazardous air pollutants. Only such a change in the statute will allow the EPA to establish “safe” emissions standards under the Residual Risk Program in a manner that enables public participation and maintains the Agency's legitimacy.
The inherent problems with section 112's implementation are not new. Prior to the 1990 Amendments, several scholars, including John P. Dwyer and Sanford E. Gaines, examined the difficulties of implementing the statute's health-based regulatory scheme. This Article will build on that work in order to demonstrate how Congress incorporated section 112's underlying flaw into the 1990 Amendments even as it sought to improve the EPA's regulation of hazardous air pollutants. By tracing the evolution of the Residual Risk Program, this Article will demonstrate that unless the statute is amended, the underlying statutory flaw will undermine the legitimacy of the EPA's emission standards.
Section 112 of the Clean Air Act directs the U.S. Environmental Protection Agency (the EPA or the Agency) to regulate nearly 200 hazardous air pollutants emitted by a wide variety of industries.1 Many of these pollutants, such as dioxin and benzene, are known carcinogens, while others, such as mercury, may cause adverse neurological, reproductive, or developmental effects. Because millions of individuals are exposed to emissions of these hazardous air pollutants from tens of thousands of industrial sources, EPA's implementation of section 112 has a very real impact on the nation. While over-regulation could impose significant, unnecessary economic burdens on large sectors of the nation's economy, under-regulation could pose significant risks to the public health.
Of the provisions in section 112 created by the 1990 Amendments to the Clean Air Act, the Residual Risk Program (established by section 112(f)) is the only “health-based” regulatory mechanism. The intent of the program is, first and foremost, to guarantee public safety; it directs the EPA to assess the health risks posed by hazardous air pollutants and set emission standards stringent enough to guarantee that the public is amply protected. While other provisions of section 112 require emissions standards to reflect the pollution control technologies currently implemented by the best performing members of an industry, the Residual Risk Program functions as a health-based “safety net” to ensure that those “technology-based” emission standards do not pose a threat to the public health.
Although created in 1990, the Residual Risk Program relies on an interpretation of statutory language that has been a part of section 112 since its inception in 1970. The program requires, as section 112 has required for over three decades, that the EPA restrict emissions of hazardous air pollutants from industrial sources so as to “provide an ample margin of safety to protect the public health.” While the precise meaning of that language has evolved over the past thirty years, it has always been based on the presumption, established by Congress and the U.S. judiciary, that it is possible to determine “safe” emission levels solely by investigating the dangers that hazardous air pollutants may pose to the exposed public. Irrelevant to that determination, and therefore precluded from it, is any consideration of the cost and feasibility of reducing emissions. In other words, an industry's ability to achieve “safe” emission levels by adopting available, cost-effective pollution control measures is not a factor to be considered in setting these standards.
Unfortunately, however, that underlying presumption is fundamentally flawed. It is simply not possible to meaningfully determine “safe” emission levels of hazardous air pollutants based solely on the risks that those emissions may pose to the public health. Although not intuitively obvious, without considering the cost and feasibility of regulation, a determination of “safe” emissions based on the risk to the public health can only be arbitrary. Consequently, the Residual Risk Program, because it is based on this incorrect presumption, demands the impossible from the EPA. It requires a meaningful determination of “safe” emission levels while precluding a consideration of the factors necessary to make that determination.
The EPA will soon begin to set emission standards under the Residual Risk Program and, in an earlier report to Congress, the Agency outlined its proposed implementation of the program. The report indicates that, consistent with the unrealistic expectation of Congress and the courts, the Agency will determine “safe” or “acceptable” emission levels of hazardous air pollutants based solely on the risk posed to the public without any consideration of the cost and feasibility of reducing emissions. If implemented in this manner, the Residual Risk Program can only result in emission standards that are, at best, arbitrary. However, based on the Agency's regulation of hazardous air pollutants before the 1990 Amendments were enacted, it is reasonable to conclude that the EPA will attempt to demonstrate its conformity to the impossible mandate of the statute, but will actually base its determinations on sub rosa considerations of the cost and feasibility of reducing emissions.
To act with democratic legitimacy, the EPA must ultimately be accountable to the public. The Agency's sub rosa considerations defeat that accountability by hiding the bases for its decisions from meaningful public review. Therefore, to correct the Residual Risk Program's underlying flawed presumption and curtail the *6 EPA's future reliance on sub rosa considerations, section 112(f) of the Clean Air Act should be amended to allow the Agency to consider cost and feasibility when it determines “safe” emission levels for hazardous air pollutants. Only such a change in the statute will allow the EPA to establish “safe” emissions standards under the Residual Risk Program in a manner that enables public participation and maintains the Agency's legitimacy.
The inherent problems with section 112's implementation are not new. Prior to the 1990 Amendments, several scholars, including John P. Dwyer and Sanford E. Gaines, examined the difficulties of implementing the statute's health-based regulatory scheme. This Article will build on that work in order to demonstrate how Congress incorporated section 112's underlying flaw into the 1990 Amendments even as it sought to improve the EPA's regulation of hazardous air pollutants. By tracing the evolution of the Residual Risk Program, this Article will demonstrate that unless the statute is amended, the underlying statutory flaw will undermine the legitimacy of the EPA's emission standards.
