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McGeorge Law Review Volume 27 | Issue 4 Article 5 1-1-1996 Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level Thomas O. McGarity University of Texas School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/mlr Part of the Law Commons Recommended Citation Thomas O. McGarity, Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 Pac. L. J. 1521 (1996). Available at: https://scholarlycommons.pacific.edu/mlr/vol27/iss4/5 This Symposium is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in McGeorge Law Review by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level Thomas 0. McGarity* TABLE OF CONTENTS I. INTRODUCTION ............................................ 1523 I. THE PROBLEM OF AUTOMOBILE EMISSIONS IN URBAN AREAS ....... 1524 A. Health and EnvironmentalEffects of PhotochemicalOxidants.. 1524 B. The Contributionof Automobile Emissions ................. 1526 I. INSPECTION AND MAINTENANCE AS A TOOL FOR FIGHTING URBAN SMOG .................................................... 1528 IV. HISTORY OF INSPECTION AND MAINTENANCE UNDER THE CLEAN AIR A CT .................................................. 1535 A. State of Regulation Priorto 1970 ........................ 1535 B. The Clean Air Act Amendments of 1970 ................... 1538 C. Implementation of the 1970 Amendments .................. 1540 1. Promulgatingthe NationalAmbient Air Quality Standards . 1540 2. PromulgatingEmissions Standardsfor Automobiles ...... 1541 3. Writing the OriginalState Implementation Plans ......... 1543 a. EPA's SIP Guidelines ........................... 1544 b. Drafting Plans in the States ...................... 1545 4. The Riverside and NRDC Lawsuits .................... 1546 5. Back to the Drawing Boardfor EPA and the States ....... 1547 a. California .................................... 1548 b. Texas ....................................... 1549 6. JudicialReview of Implementation Plans ............... 1550 a. California .................................... 1550 b. Texas ....................................... 1552 7. Administrative and CongressionalBackpedaling ......... 1553 D. The Clean Air Act Amendments of 1977 ................... 1553 E. Implementation of the 1977 Amendments .................. 1555 1. EPA Approval/Disapprovalof Plansand Extension Requests 1555 2. The Second Failureto Attain the Standards ............. 1560 * V. James Kronzer Chair in Trial and Appellate Advocacy, University of Texas School of Law. The author would like to thank Sherie Richie and Elysia Franty for their assistance in preparing this Article. 1521 PacificLaw Journal/ Vol. 27 F. The Clean Air Act Amendments of 1990 ................... 1562 1. New Designations ................................. 1562 2. Reasonable FurtherProgress ........................ 1562 3. Inspection andMaintenance ......................... 1563 4. Sanctions ........................................ 1565 G. EPA's Inspection and MaintenanceRegulations ............. 1565 1. The ProposedRule ................................ 1565 2. The FinalRule ................................... 1571 3. JudicialReview ................................... 1574 V. THE COLLAPSE OF THE 1990 INSPECTION AND MAINTENANCE REGIME 1576 A. Progress Under the 1990 Amendments .................... 1576 B. State Reactions to the 1994 Elections ..................... 1578 C. Continued Resistance to Inspection and Maintenance and the Demise of IM-240 .................................... 1579 1. California ....................................... 1579 2. Texas ........................................... 1594 D. EPA's Cave-In ....................................... 1595 1. Effect of EPA's Retrenchment in California ............. 1599 2. Effect of EPA's Retrenchment in Texas ................. 1600 VI. COOPERATIVE FEDERALISM-A CYNICAL VIEW................... 1619 A. EPA's Inability to Commandeer State Resources ............ 1619 B. Unwillingness of the States to UndertakeAdequate Implementation Efforts ............................................. 1620 C. Disagreementwith Basic Implementation Goals ............. 1621 D. Lack of PoliticalWill .................................. 1622 E. Race-to-the-Bottom ................................... 1623 F. Local Demagoguery .................................. 1624 VII. CONCLUSION: UNCOOPERATIVE FEDERALISM AND THE ABSENCE OF CONSEQUENCES ........................................ 1625 1522 1996/Regulating Commuters to Clear the Air You know, everybody is against pollution. But most have an Achilles' heel when antipollution efforts hit them personally. -William D. Ruckelshaus, Administrator, EPA** Unfortunately, everything in this country, everything operates with politicians. If you don't get the politicians on your side, you're doomed to lose. -M.S. Safadi, owner of the now-defunct Pasadena, Texas Inspection and Maintenance Facility** I. INTRODUCTION For the twenty years preceding the enactment of the Clean Air Act Amend- ments of 1970, the history of pollution control in the United States was one of increasing federal assumption of power and responsibility. 1The next twenty years witnessed huge battles over attempts by the federal government to compel, cajole, or otherwise induce state and local governments to deal seriously with urban pollution. For most of the nation's polluted cities, this was a period of standoff in which state and local governments did little to bring about any serious changes in urban lifestyles and the federal government took only modest action to force auto manufacturers, petroleum producers and marketers to implement tech- nologies aimed at reducing pollution at the source. As a consequence, polluted urban areas saw very few of the promised improvements. The 1990 Amendments to the Clean Air Act, which represented the culmination of years of intense legis- lative deliberation, took a longer view toward attaining air quality goals in the most severely polluted cities, but required stringent technological controls and sought to induce state and local governments to begin seriously to address necessary reductions in commuter traffic. Unfortunately, the familiar process of reaction and retrenchment began to set in almost as soon as the 1990 Amend- ments became law, and the complicated state/federal implementation scheme is coming unraveled once again. From the outset, the modem Clean Air Act has contained the hortatory congressional finding that "air pollution prevention... and air pollution control at its source is the primary responsibility of States and local governments. ' 2 The history of the implementation of the Clean Air Act in urban areas, however, demonstrates that the relevant state and local governments have failed to meet ** Coming Government Moves in War Against Pollution: Interview with William D. Ruckelshaus, Administrator, Environmental Protection Agency, U.S. NEWs & WORLD REP., Mar. 29, 1971, at 72. *** Leigh Hopper, Auto Emissions Flap Worries Contractors; Repeal Would Leave Operators in Limbo, HousroN PosT, Dec. 24, 1994, at A20. 1. J.CLARENCE DAVImS III, THE POLmcs OFPOLLUrON 49-58 (1970). 2. Clean Air Act § 101(a)(3), 42 U.S.C.A. § 7401(a)(3) (West 1995). 1523 Pacific Law Journal/ Vol. 27 their responsibilities. Although the federal government in the early 1970s attempted to force the state and local governments to meet their responsibilities, concerns for federalism in the courts and Congress blunted that initial effort. Since the mid-1970s, the history of the implementation of the Clean Air Act has been one of federal nudging, cajoling, and sometimes threatening to administer sanctions or to take over state programs, all of which resulted in very little serious effort at the state and local levels. To be sure, air quality in most urban areas is much healthier than it was twenty-five years ago, and the nation can take pride in this progress, most of which has taken place in the last five years. This Article will maintain, however, that nearly all of that progress is attributable to source control requirements directly or effectively imposed at the federal level and by lawsuits filed by affected citizens and environmental groups aimed at forcing federal, state, and local agencies to fulfill their statutory responsibilities.3 As a corollary, this Article will conclude that current efforts to accelerate the "devolution" of federal power to the states, if directed to urban pollution control, could very easily reverse the encouraging trend of the last five years and ensure that millions of American citizens never breathe clean air. II. THE PROBLEM OF AUTOMOBILE EMIsSIONS IN URBAN AREAS A. Health and EnvironmentalEffects of Photochemical Oxidants The health and environmental effects of exposure to ozone in the ambient air, like the health and environmental effects of many pollutants, is a subject of much debate. Studies convincingly demonstrate that ozone causes "immediate, short- term changes in lung function and increased respiratory [problems] among healthy adults and children who exercise moderately or heavily during periods of elevated ozone concentrations." 4 Exposure to ozone for one or two hours at levels encountered in cities like Los Angeles, New York, and Houston

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