Naked City

By Doug Potter

Hooray! We're in non-attainment! Now what do we do? After months and years of limbo, Austin can finally act like it is indeed in violation of the Clean Air Act. But what that means is still months and years away from being decided.

Not that smog is something we should greet with glee, but had it not been for a stunning victory for the environment at the U.S. Supreme Court, we would not be talking about "non-attainment," but our air would still be dirty. In a 9-0 vote, the Supremes said yes, the Environmental Protection Agency could, under the Clean Air Act, adopt a stricter air-quality standard without considering the costs of compliance for polluters, such as the groups that brought the suit (Whitman -- formerly Browner -- v. American Trucking Association et al.). When Antonin Scalia writes the opinion against your conservative cause, you know you have wasted your time.

And yet … the justices remanded to the D.C. appellate court the question of how the EPA can implement the standard, which it adopted back in 1997, and thus threw cities like Austin, San Antonio, and Tyler/Longview, all in non-attainment of the new standard, back into procedural limbo. It's like this:

The 1991 version of the Clean Air Act -- crowingly signed by George the Elder, who was, as you know, the "environmental" president -- lays out very specific policies and remedies for metro areas that, as measured over the course of an hour, had unacceptably high ozone levels (the old "one-hour standard"). That was non-attainment. (The act also has standards for other air pollutants, but ozone is what we care about.)

But, as unanimously affirmed by the Supreme Court, the Act also allows the EPA to revise that standard in the interest of public health, which the agency, under former head Carol Browner, did by nailing cities that topped the ozone threshold at any time in a given eight-hour period. Under the new eight-hour standard, the air over cities like Austin is now legally unclean. But the Act is silent as to whether, or how, its specific prescriptions for one-hour-standard violators get applied to this new roster of non-attainment cities.

So the EPA basically made up new rules, which the Supreme Court said it could not do. And here we are. "We have no indication of what that means," says Wade Thomason, executive director of the Clean Air Force of Central Texas. "Our sense was that the court was looking for consistency between the two standards." Under the one-hour system, the Act calls for different responses by metro areas depending on how badly they failed to attain the standard, which was not part of the EPA's thinking on the eight-hour standard. So we'll have to do something, but it might not be to the extent we had before, because we're only a couple parts per billion into non-attainment.

Maybe. Simply remanding the question to the appellate court can take months, and the Second Circuit judges would then send new EPA administrator Christie Whitman back to the regulatory drawing board, and who knows how long that will take. And who knows what Whitman, the former GOP governor of one of the nation's most polluted states, will do, or be allowed to do by George the Younger and his regents. But "the decision upholds the [EPA's role in implementing the] Clean Air Act, which is significant with the change of administration at the federal level," Thomason says. "If it hadn't been upheld, we would have gone back to the one-hour standard, which we attain now, but pretty soon we'll violate that too."

So Austin's air-quality honchos, as coordinated via the Clean Air Force, are proceeding as before. "The key right now is doing some scientific modeling," Thomason says, so that we'll know what, exactly, is doing the most damage to our air. Then the Clean Air Force will test the various control strategies, like reducing speed limits, reformulating gasoline, restricting gas-powered lawn equipment, and of course, getting cars off the road, to see which will work best. "Of course," Thomason adds, "we have to look forward several years, not at where we are now."

That assumes that local officials, working within the wildly complex guidelines of the Clean Air Act and the EPA's existing rules, get to decide what to do, which under the one-hour language in the Clean Air Act they basically did not. If that's where the implementation issue ends up, "it's more likely there will be a lot more specific requirements," says Cathy Stephens, air quality programs manager for the Capitol Area Metropolitan Planning Organization(CAMPO). "If you're this far out of compliance, then you have to implement this, that, and the other control. It removes a lot of local flexibility, though you'll still have some leeway."

Some of the heaviest lifting will have to be done by CAMPO, which under non-attainment has to ensure that our road projects will not make the air worse or else lose federal funding for them, and which has to update its long-range transportation plan -- just passed last year, and still not adopted by the city of Austin -- by 2003 instead of 2005. "Of course, with the delay," says Stephens, "there's a plausible chance that we'll have clean data" -- i.e., be back in attainment -- "by the time they get around to actually designating us non-attainment. All the more reason to move full speed ahead now."