Opportunity Lost: Virginia v. EPA and the Authority of the Northeast Ozone Transport Commission
By Matthew J. MacLean
INTRODUCTION
Ozone pollution has become a serious problem in the United States. Ground-level ozone, a principal constituent of smog, can damage the human lungs. Although the Clean Air Act seeks to control national ozone levels, it has been relatively unsuccessful due to its unique approach of requiring state implementation of national ozone standards. Ozone is not directly emitted, but is created by a series of chemical reactions of other pollutants. These pollutants drift downwind as time and sunlight interact with the emissions to form ozone. As ozone concentrations reach harmful levels, the plumes of emissions may already be across state lines. For this reason, it has been possible for a state to keep its own ozone concentration below the national concentration standards while other states suffer from its emissions.
To respond to the interstate Aozone transport problem, the Clean Air Act Amendments of 1990 created Ozone Transport Commissions (AOTCs), comprised of state governors, to recommend regional control measures to the Environmental Protection Agency (the AEPA). In 1994, the Northeast Ozone Transport Commission made a recommendation requiring that the northeastern states adopt stringent ozone precursor emission standards based on the emission standards set by California. The California car standards are significantly more strict than the national car standards set by the Clean Air Act. The Commonwealth of Virginia, a member of the Northeast Transport Region, challenged the proposal in the U.S. Court of Appeals for the District of Columbia Circuit on the basis that the EPA exceeded its statutory power by approving the recommendation and that the OTC was unconstitutional. The court in Virginia v. EPA declined to reach the constitutional issue, holding that the EPA had exceeded its statutory authority. The court held that a provision in the Clean Air Act prohibiting the EPA from changing federal emission standards prevented the EPA from approving an OTC proposal to require states to adopt more stringent emission standards.
This Note argues that the court misconstrued the statute and that it should have reached the constitutional issue. The Note maintains that the court should have held the OTC constitutional. It concludes by recommending an amendment to the Clean Air Act to restore language furthering the legislation's initial goal to reduce interstate ozone transport.
Ozone pollution has become a serious problem in the United States. Ground-level ozone, a principal constituent of smog, can damage the human lungs. Although the Clean Air Act seeks to control national ozone levels, it has been relatively unsuccessful due to its unique approach of requiring state implementation of national ozone standards. Ozone is not directly emitted, but is created by a series of chemical reactions of other pollutants. These pollutants drift downwind as time and sunlight interact with the emissions to form ozone. As ozone concentrations reach harmful levels, the plumes of emissions may already be across state lines. For this reason, it has been possible for a state to keep its own ozone concentration below the national concentration standards while other states suffer from its emissions.
To respond to the interstate Aozone transport problem, the Clean Air Act Amendments of 1990 created Ozone Transport Commissions (AOTCs), comprised of state governors, to recommend regional control measures to the Environmental Protection Agency (the AEPA). In 1994, the Northeast Ozone Transport Commission made a recommendation requiring that the northeastern states adopt stringent ozone precursor emission standards based on the emission standards set by California. The California car standards are significantly more strict than the national car standards set by the Clean Air Act. The Commonwealth of Virginia, a member of the Northeast Transport Region, challenged the proposal in the U.S. Court of Appeals for the District of Columbia Circuit on the basis that the EPA exceeded its statutory power by approving the recommendation and that the OTC was unconstitutional. The court in Virginia v. EPA declined to reach the constitutional issue, holding that the EPA had exceeded its statutory authority. The court held that a provision in the Clean Air Act prohibiting the EPA from changing federal emission standards prevented the EPA from approving an OTC proposal to require states to adopt more stringent emission standards.
This Note argues that the court misconstrued the statute and that it should have reached the constitutional issue. The Note maintains that the court should have held the OTC constitutional. It concludes by recommending an amendment to the Clean Air Act to restore language furthering the legislation's initial goal to reduce interstate ozone transport.
