Ronald L. Haldy, P.C., lawyers in Flint, MI, Michigan

The Clean Air Rules of 2004

In 2002, the Bush administration formulated the Clear Skies Initiative to address air pollution created by power plants, which consists primarily of sulfur dioxide, nitrogen oxides, and mercury emissions. Rather than seek plant-by-plant compliance with federal clean air standards, the Clear Skies Initiative would establish a national cap on each air pollutant and distribute the cap proportionally among power plants. Power plants that reduce emissions below their proportional limit would be able to sell the excess reductions as "credits" to other power plants that are unable to meet their own limits. Proponents of this approach, which is similar to that already in place to reduce the air pollutants that cause acid rain, note that it provides polluters with an economic incentive to reduce their emissions beyond that required by the law. Opponents of the plan are critical of the fact that most of the pollution reduction goals could be achieved several years earlier than the timetable set by the Clear Skies Initiative by enforcing the existing requirements of the Clean Air Act. Criticism is also directed at the fact that the total achievable emissions reductions will not be reached because some polluters may buy their way out of complying with the emissions limits that apply to them.

The Clear Skies Initiative, in the form of legislation called the Clear Skies Act of 2003, has floundered in Congress. Because of the lack of progress in passing the bill, the Bush administration proposed several rules for promulgation by the Environmental Protection Agency (EPA), which the EPA collectively calls the Clean Air Rules of 2004. The rules do not require congressional approval because they are authorized under the Clean Air Act. The Clean Air Rules consist of the Clean Air Interstate Rule, the Clean Air Mercury Rule, the Clean Air Nonroad Diesel Rule, the Clean Air Ozone Rules, and the Clean Air Fine Particle Rules. Some of the rules have been finalized, while others are scheduled to be finalized by the end of 2004.

The Clean Air Interstate Rule addresses power-plant pollution that drifts from one state to another. That rule and the Clean Air Mercury Rule essentially implement the same cap-and-trade system proposed by the Clear Skies Initiative. For mercury, the rule replaces a Clinton administration policy that treated mercury as a hazardous substance and required power plants to achieve the maximum possible reductions in mercury emissions.

The Clean Air Nonroad Diesel Rule targets both pollution control systems on diesel engines and the formulation of diesel fuel in order to significantly reduce pollutant emissions from the burning of diesel fuel. The rule is part of the EPA's Clean Diesel Programs, which the EPA contends will result in a significant improvement in air quality similar to that achieved by the inclusion of catalytic converters in gasoline-powered engines.

The Clean Air Ozone Rules and the Clean Air Fine Particle Rules focus on areas of the country that have not met national standards for ground-level ozone and fine particulate matter. Under the rules, non-compliant areas will be identified, the seriousness of the problem will be assessed, and states in which the non-compliant areas are located are required to submit plans for reducing ground-level ozone and fine particulate matter.