EPA dropped the extension policy earlier this year after environmental groups including Earthjustice successfully challenged it in court. The courts unanimously held that EPA could not extend clean air deadlines without requiring stronger air pollution controls in each of the cities.
Now, reports have surfaced of efforts to revive the EPA extension policy, possibly through a Congressional rider. At today's hearing, clean air advocates argued that the extension policy was bad policy in the past and even less acceptable today.
"It makes no sense to put off stronger air pollution controls, when many cities still have very unhealthful air," said Earthjustice Attorney, David Baron. "More delays mean more days when our children, our senior citizens and others are exposed to dangerous levels of pollution just by stepping outside their front doors."
"Atlanta has had 30 years to clean up its air, and each year, more people suffer the consequences – asthma attacks, lost work time, lost play time for our kids," said SELC attorney David Farren. "EPA has admitted its 'downwind extension' policy is illegal. It's time to admit it is unfair to let Atlantans and other city dwellers continue to breathe dirty air."
The Clean Air Act requires EPA to set national ambient air quality standards (NAAQS) specifying the maximum permissible air concentration of pollutants such as ozone. In response to years of failed and inadequate efforts by states to adopt sufficient emissions reduction programs during the 1980s, the 1990 Amendments to the Act created a classification system for areas that had not yet attained the NAAQS for ozone, based on the severity and persistence of the problem. The classifications are: marginal, moderate, serious, severe, and extreme. Areas with higher classifications were given more time to attain the standard, but had to adopt stronger pollution control measures. If an area failed to attain standards by the deadline for its classification, the Act required that it be reclassified ("bumped up") to the next category.
But in a number of cases, EPA extended clean air deadlines without bumping the area up to the next classification. This policy had the effect of delaying clean air without requiring the additional pollution controls mandated by the law. EPA claimed the extensions were justified because air pollution was sometimes transported to the affected cities from other areas, but the Courts unanimously rejected this argument. Courts of appeal have rejected EPA's "extension policy" in Atlanta, St. Louis, Washington DC, Baton Rouge and Beaumont/Port Arthur.
"I strongly believe that EPA's waiver of bump ups via its 'downwind extension policy' not only violated the Clean Air Act, but also wrongly delayed measures that are sorely needed to protect public health in these and other communities," Baron testified at today's hearing before the House Subcommittee on Energy and Air Quality.
"EPA's application of this discredited policy has delayed adoption of additional pollution controls that are badly needed to meet clean air standards in Atlanta, Washington, D.C., Baton Rouge, and Beaumont Texas," Baron testified. "The illegal extensions have burdened the public in those areas with dirty air until at least 2005 without the additional pollution controls already required in other cities. As a result of EPA's illegal deadline extensions, the air in these cities is substantially dirtier than it should be."
The environmentalists also challenged the claim that impacts from transported pollution justified weaker local pollution controls.
"Many areas of the Northeast suffer from far more from transported air pollution than areas like Atlanta or Baton Rogue, yet have adopted more emissions reduction measures," noted Baron. "It is grossly unfair to give extra compliance time to other areas based solely on concerns about transported pollution."