Limitations of the Clean Air Act

Enacted in 1970, the Clean Air Act is a cornerstone of the United States’ climate policy and may be one of the most powerful environmental laws in the world.^1,2 When it was created, the Clean Air Act was intended to combat rising levels of air pollutants seen as a threat to human health but was also given the power to be flexibly deployed against environmental and health risks that had not yet been identified.³ This flexibility has enabled much of the Clean Air Act’s current power: as the climate crisis has grown in publicity and severity, the Environmental Protection Agency has been able to rely on the Clean Air Act to regulate greenhouse gasses and other pollutants contributing to global warming. Since its enactment, the Clean Air Act has reduced air pollution by 70%, vastly benefiting the health of both America’s citizens and its environment.⁴ However, although it has taken important steps to improve U.S. air quality, the scope of the Clean Air Act is nonetheless insignificant and rapidly declining. The Clean Air Act is limited in its ability to address air pollution hotspots, and as a result of recent administrative and legal action, has become significantly weaker in addressing pollution and climate change on all scales.

The Clean Air Act contains provisions intended to control common pollutants, which at the time of its formulation in the 1970s, referred primarily to pollutants forming “dense, visual smog in many of the nation’s cities and industrial centers.”⁵ It aimed to address pollutants by requiring the then-newly established Environmental Protection Agency to create national ambient air quality standards that would be regularly updated based on current scientific findings and projections.⁶ Although the Clean Air Act was initially established to counter pollutants threatening public health, it is now core to U.S. climate policy as well. The Clean Air Act’s requirement for states to review and update air pollution standards based on the latest scientific findings has lent it enormous scope; as knowledge surrounding climate change has expanded, the Clean Air Act has allowed for the incorporation of standards curbing greenhouse gasses and other climate risks. Additionally, the Clean Air Act’s Section 115, which has authorized the EPA to require states to address emissions that may affect other nations, has been foundational to the U.S.’s international air pollution policy.⁷

The Clean Air Act works exceptionally well on a regional level. Because it requires states to implement individualized plans to prevent pollutants from exceeding maximum levels set forth by the EPA, the Clean Air Act successfully and stringently regulates air pollution on a large scale.⁸ However, the Clean Air Act fails to address air pollution on a small scale, often failing to notice air quality issues in at-risk areas.⁹ The EPA’s focus on monitoring and creating policy for large air districts can mask air pollution “hotspots;” because its focus is so large, the Clean Air Act often overlooks small yet highly affected areas.¹⁰ Clean Air Act standards are based on averages collected from across large population areas.¹¹ The Clean Air Act is not designed to assess air quality in small or confined areas — EPA pollutant monitors are typically placed in locations where pollution levels are representative of larger averages, completely overlooking pollution hotspots.¹² Additionally, the standards that the Clean Air Act established to deal with air pollution are designed to operate on a statewide level rather than in smaller, targeted locations.

The burden of air pollution is not equally shared among people and populations. Low-income communities, underserved communities, communities of color, and tribal communities typically face higher exposure to harmful pollutants and their impacts.¹³ By failing to address pollutants on a smaller scale, the Clean Air Act disproportionately impacts these communities and their health.

The Clean Air Act’s already insufficient scope is only decreasing. The Clean Air Act has been significantly weakened over the past few years, a trend that will likely only continue. During his time as President, Trump and his administration aggressively rolled back health and environment-protecting regulations, reversing over 30 air pollution and emissions-related policies. These rollbacks significantly weakened the enforcement of the Clean Air Act.¹⁴ But, more importantly, Trump’s creation of a conservative majority in the Supreme Court created the largest threat currently facing the Clean Air Act.

In their recent decision in West Virginia vs. EPA, the Supreme Court significantly curbed the ability of the Environmental Protection Agency to regulate air pollution, deeply wounding the Clean Air Act.¹⁵ This case was the Court’s first explicit use of “major questions doctrine,” a niche legal doctrine that requires Congress to speak clearly when authorizing agency power and action in specific cases.¹⁶ Under major questions doctrine, the Supreme Court can reject federal agencies’ claims of regulatory authority when underlying claims of authority concern an issue of “vast economic and political significance,” or when Congress has not clearly empowered the agency with said specific authority.¹⁷ This decision means that the Environmental Protection Agency is no longer able to retrofit old aspects of the Clean Air Act to deal with greenhouse gas emissions and other emerging threats; instead, completely new policies must be created.¹⁸ West Virginia imposes limits of a kind and scope that hasn’t been seen in over 70 years, vastly restricting the EPA’s ability to use the Clean Air Act to address climate change and other emerging threats. And, while this decision refers specifically to the EPA and its climate policy, West Virginia has worrying implications for the longevity of other EPA policies and the authority of other federal agencies. Through major questions doctrine, the Supreme Court has the potential to curb many key pieces of federal legislation.¹⁹ Major questions doctrine is rather new and the Supreme Court has not yet outlined its scope; how far it may take this doctrine in the future is currently unknown.²⁰

For the benefit of U.S. citizens and their environment, the Clean Air Act must be strengthened. Because of the doctrine outlined in West Virginia v. EPA, the clearest path toward strengthening federal climate regulations is by passing new legislation intended to supplement the Clean Air Act. By creating climate legislation that specifically addresses small-scale pollution, the federal government can address discrepancies within the Clean Air Act. New measures could supplement EPA air quality monitors with low-cost air quality monitors in high-population or geographically isolated areas — likely air pollution hotspots.²¹ Additionally, these regulations could include local air quality improvement plans and smaller-scale state implementation plans to set in place measures to actively address said hotspots.²²

To ensure the long-term integrity of the Clean Air Act, its protection in U.S. courts is also vital. The future scope of the Clean Air Act is contingent on the establishment of clear boundaries surrounding major questions doctrine; if the Supreme Court continues to use major questions doctrine to curb the power of federal agencies, the Clean Air Act and the EPA’s larger administrative power may be reduced further.²³ By ensuring that future judicial appointees prioritize environmental justice, the federal goverment can work to definitely outline major questions doctrine in a way that limits its potential to damage the Clean Air Act.

The Clean Air Act is under significant pressure. However, its success in the past serves as a reminder of the federal government’s ability to respond widely and effectively to pollution and climate change. By strengthening and expanding upon the Clean Air Act, America’s courts and lawmakers can draw upon their past successes to continue to protect the health of the American people and their environment.

References

1. Davenport, Coral. “What Is the Clean Air Act?” The New York Times. The New York Times, June 30, 2022. https://www.nytimes.com/2022/06/30/climate/clean-air-act-epa.html. ↩

2. United States Environmental Protection Agency. “Summary of the Clean Air Act.” EPA. Environmental Protection Agency, September 12, 2022. https://www.epa.gov/laws-regulations/summary-clean-air-act. ↩

3. Davenport, Coral. “What Is the Clean Air Act?” The New York Times. The New York Times, June 30, 2022. https://www.nytimes.com/2022/06/30/climate/clean-air-act-epa.html. ↩

4. United States Environmental Protection Agency. “Summary of the Clean Air Act.” EPA. Environmental Protection Agency, September 12, 2022. https://www.epa.gov/laws-regulations/summary-clean-air-act. ↩

5. United States Environmental Protection Agency. “The Clean Air Act in a Nutshell: How It Works.” EPA. Environmental Protection Agency, December 8, 2021. https://www.epa.gov/clean-air-act-overview/clean-air-act-nutshell-how-it-works. ↩

6. Ibid. ↩

7. Columbia Climate School Sabin Center for Climate Change Law. “Clean Air Act.” Clean Air Act | Sabin Center for Climate Change Law. Columbia Law School, 2022. https://climate.law.columbia.edu/content/clean-air-act. ↩

8. Congressional Research Service. “Clean Air Act: A Summary of the ACT and Its Major Requirements.” Congressional Research Service, September 13, 2022. https://sgp.fas.org/crs/misc/RL30853.pdf. ↩

9. Bourzac, Katherine. “A Local Look at Air Pollution Highlights Inequalities within Cities.” C&EN, June 20, 2021. https://cen.acs.org/environment/pollution/local-air-quality-monitoring-inequalities/99/i23. ↩

10. Aoki, Hiroyasu, Masahiro Kitabatake, Haruka Abe, Shigeyuki Shichino, Atsushi Hara, Noriko Ouji-Sageshima, Toshihiro Ito, Kouji Matsushima, and Satoshi Ueha. “T Cell Responses Induced by SARS-COV-2 Mrna Vaccination Are Associated with Clonal Replacement.” SSRN, October 18, 2022. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4232457. ↩

11. Ibid. ↩

12. Ibid. ↩

13. Katz, Cheryl. “People in Poor Neighborhoods Breathe More Hazardous Particles.” Scientific American. Scientific American, November 1, 2012. https://www.scientificamerican.com/article/people-poor-neighborhoods-breate-more-hazardous-particles/. ↩

14. Gross, Samantha. “What Is the Trump Administration's Track Record on the Environment?” Brookings. Brookings, June 16, 2021. https://www.brookings.edu/policy2020/votervital/what-is-the-trump-administrations-track-record-on-the-environment/. ↩

15. Coleman, Zack, Kelsey Tamborrino, and Josh Siegel. “'Shocking' and 'Disgraceful': Supreme Court Climate Ruling Sparks Anger from Democrats, Environmentalists.” POLITICO, June 30, 2022. https://www.politico.com/news/2022/06/30/scotus-climate-shocking-disgraceful-democrats-environmentalists-00043458. ↩

16. Congressional Research Service. “The Supreme Court’s ‘Major Questions’ Doctrine ... - Congress.” Congressional Research Service, May 17, 2022. https://crsreports.congress.gov/product/pdf/LSB/LSB10745. ↩

17. Ibid. ↩

18. Totenberg, Nina. “Supreme Court Restricts the EPA's Authority to Mandate Carbon Emissions Reductions.” NPR. NPR, June 30, 2022. https://www.npr.org/2022/06/30/1103595898/supreme-court-epa-climate-change. ↩

19. Accelerate ESG. “'Major Questions'? Supreme Court Decision in Climate Change Case Sends Ripples across the Regulatory Landscape.” Akin Gump Strauss Hauer & Feld LLP, July 6, 2022. https://www.akingump.com/en/news-insights/supreme-court-invokes-major-questions-doctrine-in-west-virginia-v-epa-to-limit-agency-authority-to-tackle-climate-change-with-implications-for-rulemakings-across-the-regulatory-landscape.html#:~:text=For%20the%20first%20time%2C%20the,st. ↩

20. Congressional Research Service. “The Supreme Court’s ‘Major Questions’ Doctrine ... - Congress.” Congressional Research Service, May 17, 2022. https://crsreports.congress.gov/product/pdf/LSB/LSB10745. ↩

21. Office, U.S. Government Accountability. “Air Quality Information: Need Remains for Plan to Modernize Air Monitoring.” Air Quality Information: Need Remains for Plan to Modernize Air Monitoring | U.S. GAO, July 13, 2022. https://www.gao.gov/products/gao-22-106136. ↩

22. National Association of Counties. “Air Quality Improvement: Guide for Local Governments.” NACo, July 2007. https://www.naco.org/. ↩

23. Webb, Erin. “Analysis: The 'Significance' behind the Major Questions Quandary.” Bloomberg Law, February 28, 2022. https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-the-significance-behind-the-major-questions-quandary. ↩