EPA’s Counsel Warns of Legality of New Program to Clean Up Smog

The U.S. Environmental Protection Agency’s general counsel has warned that the agency might have problems defending the legality of its new “extra efforts” program aimed at cleaning up the air in the nation’s smoggiest cities.

The EPA plan--known in California as Reasonable Extra Efforts Program, or REEP--would require areas such as the South Coast Air Basin to impose extra air pollution controls on cars and factories in exchange for waiving a Clean Air Act deadline.

General Counsel Frank Blake said that while the EPA’s plan was “defensible,” it “does present major legal problems and the risk of an adverse court decision is significant.”

REEP and similar programs are being developed by the EPA as alternatives to imposing economic sanctions, such as the cutoff of federal highway funds, against urban areas that will not meet the December, 1987, deadline for complying with a standard for ozone. The Clean Air Act calls for such penalties. The EPA, however, has been reluctant to impose such controls and has been struggling to justify its interpretation of the Clean Air Act, claiming that the law provides for such an alternative as reasonable extra efforts.

Pressure on Congress

The EPA’s assessment of the legal basis for the REEP program can be expected to increase pressure on Congress to amend the Clean Air Act or face the politically difficult alternative of imposing economic sanctions.

The EPA has noted that a third of the U.S. population lives in smoggy areas such as Los Angeles where peak concentrations of ozone, the primary component of smog, are sometimes two or three times higher than the federal standard. The South Coast Air Quality Management District, which monitors air pollution in Los Angeles, Orange, Riverside and San Bernardino counties, has said it will not be able to meet the current ozone standard until 2020 and perhaps never.

In a letter dated Wednesday to a congressional critic of the program, EPA Administrator Lee M. Thomas, referring to Blake’s analysis, conceded that putting the REEP program into force “entails significant legal risk, and numerous opportunities exist for litigation that could substantially impede our efforts.”

Blake said in a telephone interview from Washington on Wednesday that Thomas’ letter should serve notice to those who have viewed REEP as a way out of the sanctions dilemma that it “is not a sure bet. . . . That suggests that Congress should be looking at this.”

Last week, the Los Angeles-based Western Oil and Gas Assn. filed suit in U.S. District Court here challenging the manner in which the EPA proposed to put the reasonable extra efforts program into effect. The association, which represents 60 oil and gas companies in seven Western states, said that the EPA could not undertake the program without first going through a lengthy rule-making process. However, the association’s suit does not question the EPA’s underlying authority for a REEP program.

‘Law Is the Law’

Thomas’ letter was a reply to a Sept. 15 inquiry from Rep. John D. Dingell (D-Mich.), who had written to the EPA saying: “I know that you do not like the sanctions of the Clean Air Act. Indeed, I suspect you are not alone in that view. Still, the law is the law and EPA is not complying with it. That, in my judgment, is wrong.”

A member of Dingell’s staff said that the Reasonable Extra Efforts Program has the effect of waiving the deadline for meeting the ozone standard with no assurance that the health standard will ever be met.

But Thomas said that for areas such as California, “extremely disruptive measures, with enormous adverse social and economic impacts, would be necessary to bring about attainment. In fact, it would take an enormous effort just to identify any measures, however disruptive or unreasonable, to demonstrate compliance.”

Thomas added that the EPA was compiling a list of the types of smog controls that would be necessary to bring about compliance with the ozone standard.

Greeted Skeptically

The letter was greeted skeptically on Wednesday by Mark Abramowitz, project director of the Santa Monica-based Coalition for Clean Air, who in 1984 filed a federal suit that is responsible for the REEP program.

“That sort of sets off some alarm bells in my head because of what happened in 1974,” Abramowitz said. At that time, he said, the EPA financed a study that concluded that severe gasoline rationing would have to be put into effect to meet the clean air standards. Abramowitz said the suggestion was “ridiculous.”

“The study from the very start was meant to be something which was going to show politically that you couldn’t do anything,” Abramowitz said.

James Lents, acting executive officer of the South Coast Air Quality Management District, said Wednesday that he does not think that the REEP program would have much impact in the basin one way or the other. He said the district planned to open discussions next month on a series of proposed new air pollution controls that would be pursued whether or not REEP was in place.

Not Counting on District

Abramowitz, however, said that without REEP, the air quality district could not be counted on to impose new controls.

“The district has always been very good in talking, but when it comes to implementing and biting the bullet on control measures, they’ve certainly failed the course,” he said.

A spokesman for the state Air Resources Board said Thomas’ letter is still under review and could not say what the impact would be on California.

“I think it depends on whether or not EPA defends the reasonable efforts program. But, there’s a lot that’s happened in the past to indicate that they would,” ARB spokesman Bill Sessa said.