Negotiating the Smog Away
By Taly L. Jolish
INTRODUCTION
Early every weekday morning, as the cars converge on Manhattan, an ethereal vapor begins to form above the thousands of internal combustion engines. The delicate plume meanders northward through New England, gathering mass, and by early evening drapes the once dazzling vistas of Maine's Acadia National Park. This process, termed “ozone transport,” has been documented by EPA time sequence maps and has been the subject of intense controversy between upwind and downwind states. A variety of facilities emit the basic ingredients of smog, including factories and power plants, but automobile tailpipes constitute the principal sources in the Northeast. Most importantly, the evidence indicates that the resulting ozone transport contributes significantly to the nonattainment of air quality standards in the region.
The most recent effort to reduce ozone and ozone transport has been the development of the National Low-Emission Vehicle (“NLEV”) program. The United States Environmental Protection Agency (the “EPA” or “Agency”) adopted NLEV on March 2, 1998, clearing the way for new, cleaner cars to enter the market in the Northeast by the end of the year and nationwide by 2000. The unprecedented regulations formalize voluntary emissions standards developed over the course of protracted, hard-fought, and often bitter negotiations between automobile manufacturers and an organization of Northeast and Mid-Atlantic states. The debate over emissions standards inspired showdowns between governors and state legislatures, expensive advertising campaigns to garner public support, nearly a dozen lawsuits, and enormous political pressure brought to bear both by and on the EPA.
The process that culminated with NLEV began with the 1990 Amendments to the Clean Air Act. Among the hundreds of changes, Congress included a provision requiring a group of states to participate in a regional effort to address migratory pollution. The regional organization, called the Ozone Transport Commission (the “OTC”), has developed a trading program to limit the emission of nitrogen oxides from industries and utilities, encouraged the adoption of clean fuels regulations, and worked toward stricter federal controls on diesel engines. Of its various projects,however, the OTC's efforts to bring low-emission vehicles (“LEVs”) to the Northeast has had the broadest national impact. Part II of this Note considers how and why the Clean Air Act Amendments of 1990 addressed the issue of ozone transport, particularly in the Northeast. Part III describes the progress from the OTC's initial attempts to adopt California's vehicle emissions standards to the final negotiated agreement between the auto manufacturers and the states and the EPA's resulting regulation. Part IV details the provisions of NLEV, as finally promulgated by the EPA. The fourth part assesses the responses of the EPA, auto manufacturers, and environmentalists. The Note concludes with a discussion of the merits of the OTC process, both as Congress envisioned it and as it finally emerged, and with a critique of the substantive result.
Early every weekday morning, as the cars converge on Manhattan, an ethereal vapor begins to form above the thousands of internal combustion engines. The delicate plume meanders northward through New England, gathering mass, and by early evening drapes the once dazzling vistas of Maine's Acadia National Park. This process, termed “ozone transport,” has been documented by EPA time sequence maps and has been the subject of intense controversy between upwind and downwind states. A variety of facilities emit the basic ingredients of smog, including factories and power plants, but automobile tailpipes constitute the principal sources in the Northeast. Most importantly, the evidence indicates that the resulting ozone transport contributes significantly to the nonattainment of air quality standards in the region.
The most recent effort to reduce ozone and ozone transport has been the development of the National Low-Emission Vehicle (“NLEV”) program. The United States Environmental Protection Agency (the “EPA” or “Agency”) adopted NLEV on March 2, 1998, clearing the way for new, cleaner cars to enter the market in the Northeast by the end of the year and nationwide by 2000. The unprecedented regulations formalize voluntary emissions standards developed over the course of protracted, hard-fought, and often bitter negotiations between automobile manufacturers and an organization of Northeast and Mid-Atlantic states. The debate over emissions standards inspired showdowns between governors and state legislatures, expensive advertising campaigns to garner public support, nearly a dozen lawsuits, and enormous political pressure brought to bear both by and on the EPA.
The process that culminated with NLEV began with the 1990 Amendments to the Clean Air Act. Among the hundreds of changes, Congress included a provision requiring a group of states to participate in a regional effort to address migratory pollution. The regional organization, called the Ozone Transport Commission (the “OTC”), has developed a trading program to limit the emission of nitrogen oxides from industries and utilities, encouraged the adoption of clean fuels regulations, and worked toward stricter federal controls on diesel engines. Of its various projects,however, the OTC's efforts to bring low-emission vehicles (“LEVs”) to the Northeast has had the broadest national impact. Part II of this Note considers how and why the Clean Air Act Amendments of 1990 addressed the issue of ozone transport, particularly in the Northeast. Part III describes the progress from the OTC's initial attempts to adopt California's vehicle emissions standards to the final negotiated agreement between the auto manufacturers and the states and the EPA's resulting regulation. Part IV details the provisions of NLEV, as finally promulgated by the EPA. The fourth part assesses the responses of the EPA, auto manufacturers, and environmentalists. The Note concludes with a discussion of the merits of the OTC process, both as Congress envisioned it and as it finally emerged, and with a critique of the substantive result.
