IB10137
Clean Air Act Issues in the 109th Congress
November 25, 2005

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U.S. Department of State

Summary:

Congress acted on several Clean Air Act (CAA) issues in legislation that it passed and sent to the President in late July. The most significant of these issues, dealing with ethanol and reformulated gasoline (RFG), were addressed in the Energy Policy Act of 2005, H.R. 6 (P.L. 109-58). The act eliminates a requirement that RFG, used in the nation's most polluted areas, contain at least 2% oxygen. In its place, the act requires that the total gasoline supply contain increasing amounts of a specific oxygenate, ethanol, which is generally made from corn. Under the bill, use of ethanol will more than double by 2012. Congress also amended the Clean Air Act in H.R. 3 (P.L. 109-59), the transportation bill that the President signed August 10. H.R. 3 addresses the requirement that state and local transportation planners demonstrate conformity between their transportation plans and the timely achievement of air quality standards. Under the act, the frequency of conformity determinations and the time horizon over which conformity must be demonstrated will both be reduced, making the requirement less burdensome. Failure to demonstrate conformity can lead to a temporary suspension of federal highway funds. On October 7, in response to higher gasoline prices and the impact of hurricanes on Gulf Coast refineries, the House passed legislation to facilitate the construction of new refineries. H.R. 3893, would empower the Department of Energy to establish expedited schedules for issuing refinery permits, including those under the Clean Air Act, and would modify CAA provisions regarding fuel formulations and nonattainment areas. Other Clean Air Act amendments appear to have stalled. A bill that would have established a cap-and-trade program for emissions of sulfur dioxide (SO2), nitrogen oxides (NOx), and mercury from coal-fired electric power plants was among the first items on the agenda of the 109th Congress: S. 131 (the Clear Skies Act) was scheduled for markup by the Senate Environment and Public Works Committee March 9. But the committee failed to approve the bill, on a 9-9 tie vote, in large part because of complaints that the bill would weaken existing Clean Air Act requirements. Another issue in the debate was whether to cap emissions of carbon dioxide (CO2) in addition to the other three pollutants. With Clear Skies stalled, on March10, EPA finalized the Clean Air Interstate Rule (CAIR), which will cap emissions of SO2 and NOx from power plants in 28 eastern states and the District of Columbia and establish a cap-andtrade system through regulation. A deadline for mercury regulations helped drive the Clear Skies debate: EPA faced a judicial deadline of March 15, 2005, to promulgate standards for power plant mercury emissions. The agency met this deadline, but the specific regulations have been widely criticized and are now being challenged by at least 15 states. The regulations could have been overturned if Congress disapproved them under the Congressional Review Act. Resolutions to do so (S.J.Res.20/H.J.Res. 56) were introduced June 29. The Senate resolution was discharged from the Committee on Environment and Public Works July 18, but was defeated on a vote of 51-47, September 13. Whether to modify other requirements of the Clean Air Act (New Source Review, deadlines for nonattainment areas, and provisions dealing with interstate air pollution) have also been contentious issues. This issue brief will be updated regularly.