By: Henry Cashen
On August 7, 2021, the Intergovernmental Panel on Climate Change (“IPCC”) published a scathing report detailing the effects of global warming.[i] A conglomerate of the world’s most highly skilled scientists unequivocally noted that human influence has warmed the atmosphere, ocean, and land.[ii] The IPCC’s report was paraded throughout various news channels and industries with images of burning forests or torrential downpours in the background.[iii] However, among hurricanes, tornadoes, floods, and fires, another catastrophic effect of climate change often goes unnoticed: the degradation of air quality around the globe.[iv]
To combat the effects of climate change on air quality, Congress approved the Clean Air Act in 1970.[v] The Act incorporated state implementation plans (“SIPs”) “to implement, maintain, and enforce national ambient air quality standards… (NAAQS)”.[vi] The contents of SIPs can be adopted via state control measures, such as state statutes and regulations, which then must be approved by the Environmental Protection Agency (“EPA”).[vii] The results vary from state to state.[viii] The EPA has approved Kentucky’s Air Pollution Control Act statute, KRS Chapter 224.10-100, in its entirety under the Kentucky SIP.[ix] The EPA has not approved Tennessee’s Air Quality Act, TCA § 68-201-101, but has approved certain rules set forth by the Tennessee Department of Environment and Conservation under the Tennessee SIP.[x]
Under § 7410 of the Clean Air Act, states are required to submit plans detailing the “implementation, maintenance, and enforcement” of NAAQS to the Administrator of the EPA.[xi] Each SIP includes reasonable emissions limitations, “schedules and timetables for compliance”, and monitorization techniques.[xii] Also, each SIP prohibits any emissions activity that contributes significantly to the nonattainment in preserving NAAQS.[xiii] Finally, the Administrator of the EPA is required to promulgate a federal implementation plan if “the Administrator finds that a state has failed” to submit its SIP, the SIP does not satisfy the minimum criteria necessary to preserve the NAAQS, or if he disapproves of the SIP in whole or in part.[xiv] In enforcing NAAQS, the EPA may bring civil or criminal actions against industries found in violation of a SIP.[xv] Such was the case in Tennessee.[xvi]
Under Tennessee’s SIP, the EPA acknowledges the Tennessee Department of Environment and Conservation’s rules regarding air quality standards but has declined to acknowledge Tennessee’s Air Quality Act in its entirety.[xvii] This is likely due to the EPA’s Administrator disapproving of specific components of the Air Quality Act.[xviii] In recent years, the EPA issued an administrative compliance order against the Tennessee Valley Authority (“TVA”), alleging that multiple coal-fired units at nine of the TVA’s plants violated provisions of the Clean Air Act.[xix] The TVA and EPA entered a settlement agreement, under which the TVA paid “$10 million in civil penalties”.[xx] Further, the EPA compiled a nonattainment status list for each county in Tennessee analyzing pollutant emissions levels under the Clean Air Act.[xxi] Every county in Tennessee failed to reach acceptable levels of emissions pollution periodically through 2004-2016.[xxii] These “nonattainment zones” are areas considered to have an air quality worse than NAAQS.[xxiii] Recently, the EPA approved an amendment to Tennessee’s SIP through the Tennessee Department of Environment and Conservation, removing Tennessee’s motor vehicle inspection and maintenance program from several counties, as the request was consistent with the Clean Air Act.[xxiv] While the EPA recognizes Tennessee’s SIP through the Tennessee Department of Environment and Conservation, the two entities often butt heads, prolonging efficiency in achieving NAAQS.[xxv]
On the other hand, Kentucky’s Air Pollution Control Act has been recognized by the EPA in statutory form, KRS 244.10-100.[xxvi] Under that Act, individuals are prohibited from discharging specific emissions that cause or contribute to air pollution in contravention of the NAAQS.[xxvii] The Act also specifically focuses on the reduction of emissions from coal-fired, natural gas-fired, and fossil fuel-fired generating units.[xxviii] Yet, while the EPA recognizes Kentucky’s Air Pollution Control Act statute, there are more counties in Kentucky than Tennessee that have recently achieved nonattainment status.[xxix] Louisville has a nonattainment status as of 2021, meaning the city’s air quality standards are below NAAQS.[xxx] This begs the question: Why is Tennessee, whose Air Quality Act has not been acknowledged by the EPA, achieving a better NAAQS per county than Kentucky?[xxxi]
There is no clear answer. The SIP portion of the Clean Air Act does not expressly require the EPA Administrator to disclose his reasoning for accepting certain regulations and denying others.[xxxii] The most likely conclusion is that the rules set forth by the Tennessee Department of Environment and Conservation, acknowledged under the state’s SIP, have been deemed proficient by the EPA Administrator.[xxxiii] Nevertheless, both Kentucky and Tennessee have various counties below NAAQS, even though the EPA has recognized each state’s SIP.[xxxiv] The time has come, and is arguably well past due, for the United States federal government to emphasize the importance of climate change.
The Clean Air Act was created in 1970, and the latest amendments to the Act took place in 1990.[xxxv] Thirty-one years have passed without the Act being amended to keep up with the rapid influx of climate change.[xxxvi] Currently, the Act’s provision for SIPs is inconsistent among the states.[xxxvii] If the Act were amended to allow for greater uniformity, it could permit a common strategy to achieve healthier air quality. The Act should set forth national emissions levels that each state is required to meet. It should impose restrictions on certain pollutive industries. Amendments could allow the EPA to assemble a national monitoring program with more teeth than its current regime, capable of punishing states that refuse to comply with national standards. Amending the Act will be no easy task. After all, the United States is composed of nearly 1.9 billion acres of land with many different ecosystems and industries.[xxxviii] However, posterity is at stake. In the words of Bob Dylan, “Come senators, congressmen, please heed the call.”[xxxix]
[i] Climate Change 2021: The Physical Science Basis, Intergovernmental panel on climate change (Aug. 7, 2021, 5:00 PM), https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.pdf [https://perma.cc/XF9R-UQ4W].
[ii] Id. at 6.
[iii] New IPCC report: More heat, more extreme weather events DW News, Youtube (Aug. 9, 2021), https://www.youtube.com/watch?v=ZqOGHnRGenQ [https://perma.cc/X6A4-MHZJ].
[iv] What is Air Quality?, Conserve Energy Future, https://www.conserve-energy-future.com/what-is-air-quality.php (last visited Oct. 1, 2021) [https://perma.cc/3NLV-SVRR].
[v] 40th Anniversary of the Clean Air Act, Env’t Protection Agency, https://www.epa.gov/clean-air-act-overview/40th-anniversary-clean-air-act (last visited Oct. 1, 2021) [https://perma.cc/4KTZ-TUPM].
[vi] Basic Information about Air Quality SIPs, Env’t protection Agency, https://www.epa.gov/sips/basic-information-air-quality-sips (last updated May 17, 2021) [https://perma.cc/BTX9-CFFT].; 42 U.S.C. § 7410(a)(1) (1970).
[vii] Basic Information about Air Quality SIPs, Env’t Protection Agency, https://www.epa.gov/sips/basic-information-air-quality-sips (last updated May 17, 2021) [https://perma.cc/KYV2-5MN3].
[viii] EPA Approved Statues and Regulations in the Kentucky SIP, Env’t Protection Agency, https://www.epa.gov/sips-ky/epa-approved-statutes-and-regulations-kentucky-sip (last updated Jul. 30, 2021) [https://perma.cc/8BV7-89TQ].; EPA Approved Statues and Regulations in the Tennessee SIP, Env’t Protection Agency, https://www.epa.gov/sips-tn/epa-approved-statutes-and-regulations-tennessee-sip (last updated May 11, 2020) [https://perma.cc/7RRK-NV2R].
[ix] EPA Approved Statutes and Regulations in the Kentucky SIP, supra note viii.
[x] EPA Approved Statutes and Regulations in the Tennessee SIP, supra not viii.
[xi] 42 U.S.C. § 7410(a)(1) (1970).
[xii] Id. § 7410(a)(2)(A)-(B) (1970).
[xiii] The Clean Air Act in a NutShell: How it Works, Env’t Protetion Agency (Mar. 22, 2013), https://www.epa.gov/sites/default/files/2015-05/documents/caa_nutshell.pdf [https://perma.cc/42VA-CGZL].
[xiv] § 7410(c)(1)(A)-(B) (1970), supra note xii.
[xv] Federal Environmental Regulation in Kentucky, Ballotpedia, https://ballotpedia.org/Federal_environmental_regulation_in_Kentucky (last visited Sept. 16, 2021) [https://perma.cc/2AF6-8SYP].
[xvi]Tennessee Valley Authority Clean Air Act Settlement, Env’tProtection Agency, https://www.epa.gov/enforcement/tennessee-valley-authority-clean-air-act-settlement (last updated Feb. 9, 2021) [https://perma.cc/9VM5-RFL6].
[xvii] EPA Approved Statues and Regulations in the Tennessee SIP, supra note viii.
[xviii] See 42 USC § 7410(a)(1)(1970), supra note xi.
[xix] Tennessee Valley Authority Clean Air Act Settlement, supra note xvi.
[xx] Id.
[xxi] Tennessee Nonattainmnent Maintenance Status for Each County by Year for All Criteria Pollutants, Env’t Protection Agency, https://www3.epa.gov/airquality/greenbook/anayo_tn.html (last updated Sep. 30, 2021) [https://perma.cc/W6DU-8PTJ].
[xxii] Id.
[xxiii] Ozone Designation and Classification Information, Env’t Protection Agency, https://www.epa.gov/green-book/ozone-designation-and-classification-information (last updated Sept. 24, 2020) [https://perma.cc/3FW8-EG9U].
[xxiv] 40 C,F.R § 52 (2021).
[xxv] EPA Approved Statues and Regulations in the Tennessee SIP, supra note viii.
[xxvi] Ky. Rev. Stat. Ann § 224.10-100 (West 2017).
[xxvii] Id.
[xxviii] Id. § 224.20-142; Id. §224.20.-143; Id. §224.20-144.
[xxix] Kentucky Nonattainment/Maintenance Status for Each County by Year for All Criteria Pollutants, Env’t Protection Agency, https://www3.epa.gov/airquality/greenbook/anayo_ky.html (last updated Sep. 31, 2021) [https://perma.cc/WQN6-FPSR]. https://www3.epa.gov/airquality/greenbook/anayo_ky.html
[xxx] Id.
[xxxi] EPA Approved Statutes and Regulations in the Tennessee, supra note x.
[xxxii] See 42 U.S.C. § 7410 (1970), supra xi.
[xxxiii] EPA Approved Statutes and Regulations in the Tennessee SIP, supra note viii.
[xxxiv] Tennessee Nonattainmnent Maintenance Status for Each County by Year for All Criteria Pollutants, supra note xxi; Kentucky Nonattainment/Maintenance Status for Each County by Year for All Criteria Pollutants ,supra note xxix.
[xxxv] Clean Air Act, USLegal, https://environmentallaw.uslegal.com/federal-laws/clean-air-act/#:~:text=The%20Clean%20Air%20Act%20was%20last%20amended%20in%201990.,standards%2C%20and%20ozone%20layer%20depletion (last visited Oct. 8, 2021 [https://perma.cc/6FL8-AGD8].
[xxxvi] Id.
[xxxvii]Lindsey K., U.S. EPA Reverses 2015 SSM SIP Policy, 4 the Rec. Articles (Jan. 25, 2021), https://www.all4inc.com/4-the-record-articles/u-s-epa-reverses-2015-ssm-sip-policy/ [https://perma.cc/4HB8-BBUX].
[xxxviii] Stacey Vanek Smith & Cardiff Garcia, The U.S. Has Nearly 1.9 Billion Acres of Land. Here’s How It Is Used, Nat’l Pub. Radio (July 16, 2019 4:28 PM), https://www.npr.org/2019/07/26/745731823/the-u-s-has-nearly-1-9-billion-acres-of-land-heres-how-it-is-used [https://perma.cc/TT9B-AGBF].
[xxxix] Bob Dylan, The Times They Are A-Changin’ (Columbia Records 1964) (1965).