A lawsuit filed this week raises an important question about the relationship between the federal government and states pertaining to environmental regulations. At issue is how much flexibility state's have to modify their air pollution control plans used to comply with federal air quality standards. As reported in the Columbus Dispatch, the Sierra Club has challenged Ohio's ability to increase the threshold for triggering the requirement to install best available technology (BAT) on smaller sources of air pollution.
The specific exemption was included in Sentate Bill 265 which increased the BAT exemption from 1.8 tons per year to 10 tons per year. These sources will still have to include air pollution controls, typically what is called "reasonably available control technology" (RACT). However, they will no longer have to meet the more stringent BAT standard.
The Sierra Club goal is to prevent small pollution sources from being allowed to increase emissions. However, they are missing the critical issue. As long as overall pollution levels remain the same, shouldn't states be allowed to choose what methods they will employ to meet federal air quality standards? Also, shouldn't states be allowed to change methods if they find one to be ineffective or inefficient?
The increase in the BAT trigger threshold was adopted because there was a strong belief Ohio was over regulating small sources of air pollution. As an example, Ohio regulates over 70,000 air sources while its neighbor, Michigan, only regulates 7,000. Obviously the disparity is not attirubated to Michigan having far less industry or manufacturing, its attiributable to the fact Michigan has a higher threshold for triggering the need for a permit. The Legislation was an attempt to address this disparity. [A prior post discussed the policy motivations behind the legislation and U.S. EPA's concerns with the changes]
The Sierra Club argues the change violates the Clean Air Act's "anti-backsliding" prohibition. Under the Clean Air Act, state's are not allowed to undermine the progress made in improving air quality by reducing air pollution control requirements. However, state's have some discretion to substitute old requirements with equally effective new requirements.
Ohio wants to amend its state air pollution control plan (SIP) to substitute the requirement to install BAT on small sources with other requirements targetting other sources that are currently being implemented. The new requirements will more than make up for any pollution increase attributable to dropping BAT for small sources.
Shouldn't the State's be allowed to substitute less effective or inefficient pollution control requirements with new requirements that will produce equal or greater reductions? Hopefully, the Courts and U.S. EPA will say yes. Otherwise, less effective requirements remain on the books forever.