National Emissions Standards Act (1965)

James F. Van Orden

Excerpt from the National Emissions Standards Act

The Secretary shall by regulation, giving appropriate consideration to technological feasibility and economic costs, prescribe as soon as practicable standards, applicable to the emission of any kind of substance, from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause or contribute to, or are likely to cause or contribute to, air pollution which endangers the health or welfare of any persons, and such standards shall apply to such vehicles or engines whether they are designed as complete systems or incorporate other devices to prevent or control such pollution.

The National Emissions Standards Act (P.L. 90-148, 81 Stat. 485), Title II of the Clean Air Act (CAA), represents an evolving federal framework within which automobile pollution has been regulated. Title II was originally called the Motor Vehicle Pollution Control Act when first enacted in 1965. Congress sought to establish national automobile pollution standards, led by the efforts of Senator Edmund Muskie, a Democrat from Maine, who was the chair of the Senate Subcommittee on Air and Water Pollution. A catalyst behind air quality legislation in the 1960s and 1970s, Muskie was nicknamed "Mr. Clean," but his efforts largely paid off in a number of air quality laws that over time reduced air pollution from automobiles.

HISTORY OF AIR QUALITY LEGISLATION IN THE 1960S

The original Clean Air Act of 1963 provided federal resources to support state and local air quality protection measures. By the mid-1960s, it was becoming increasingly apparent that air quality was national in scope and that federal actions were necessary to protect human and ecological health. In addition, automobile emissions were particularly significant in degrading the nation's air quality. It had formerly been assumed that air pollution was a state issue, and much of the rest of air pollution legislation turned to the states for implementation. Since 1965 Congress has provided for national emissions standards for automobiles, actions taken under the power provided by the commerce clause of the U.S. Constitution, which grants the legislature the authority to regulate commerce among the several states.

Various states were considering enacting their own emissions standards, and although the auto industry had publicly taken the position that automobile pollution was only an urban problem and did not merit costly national emissions controls, it seems clear in retrospect that the automobile industry preferred a uniform national standard over a patchwork of state standards. The act required that the Secretary of the Department of Health, Education and Environment consider technological feasibility and economic costs and prescribe emissions standards for any pollutant deemed a threat to human health and welfare.

California had previously established emissions standards for automobiles, and the Secretary ultimately applied those standards nationwide for automobiles in model year 1968. In addition, the department granted California the ability to continue to set its own standards because the air quality in that state was especially bad. This distinction raised the objections of the auto industry, which bemoaned the difficulties posed in complying with diverse emissions standards in different markets. However, the California waiver was maintained two years later in the Air Quality Act, which provided that only the federal government could set automobile emissions standards, with the exception of California. California would be allowed to set its own tougher standards so long as they were as stringent as the federal standards because it had done so for decades, and the smog problems the state faced merited even tougher standards. In addition, both the 1965 and 1967 laws called for increased research and development to explore alternative fuel sources and emissions reduction techniques.

CLEAN AIR ACT AMENDMENTS OF 1970

The 1970 CAA Amendments represent a congressional shift in auto pollution law from flexibility to stringency. Senator Muskie opened the debate stating, "Detroit has told the nation that Americans cannot live without the automobile. This legislation would tell Detroit that if this is the case, they can make an automobile with which Americans can live" (quoted in Congressional Quarterly Almanac, 1970). Although the automobile industry lobbied hard against the bill, Congress enacted stringent new emissions standards. This act vested the power to set regulatory standards in the newly formed Environmental Protection Agency (EPA). Probably the most significant change was the removal of the initial language stating that emissions standards should take into account technological feasibility and economic costs. The statutory language in the 1970 act set forth that the EPA Administrator should set standards based only on whether pollutants from new automobiles endanger the public health or welfare. At a minimum, for all light-duty vehicles in model year 1975 and after, carbon monoxide and hydrocarbons would have to be reduced by 90 percent, while a similar reduction of nitrogen oxides would be required by 1976. It would be the administrator's duty to decide whether it was possible for automakers to meet these tough new standards. Finally, Title II was expanded by allowing the administrator to regulate and even prohibit fuel additives that endangered health and welfare.

The 1970 developments are important for a couple of reasons. First, they represent the general presumption of the CAA in the modern era; namely, that human health should be protected against the ill effects of air pollution without regard to cost. Next, they are an initial legislative attempt to force necessary new emissions reduction technology since the standards required automakers to equip vehicles with emissions controls that did not yet exist. In fact the auto industry argued during congressional hearings that it would be impossible for them to meet the proposed standards, although Congress ultimately sided with environmentalists and enacted technology-forcing emissions standards. Whereas previous laws had considered cost and feasibility, the 1970 act removed cost considerations from the administrator's decisionmaking process. Now the question would be whether or not the standards could feasibly be met regardless of cost.

THE IMPACT OF SUBSEQUENT AMENDMENTS

The 1977 and 1990 Clean Air Act Amendments generally retained this structure. Both sets of amendments set even stricter standards for passenger cars and light-duty trucks for nonmethane hydrocarbons, nitrogen oxides, and carbon monoxide, while the 1990 amendments set standards for particulate matter. Similar standards were put in place for diesel- and gas-powered trucks. Both laws explicitly set forth levels of reduction and timetables for meeting new standards, and they granted the EPA administrator the ability to issue waivers to auto manufacturers if necessary. Overall, Title II of the Clean Air Act vests a good deal of power in the Administrator of the EPA to issue emissions standards regulations based on human health, although at the times Congress has amended the act, it has laid out binding emissions reductions. Also, the 1990 amendments provided for the phase-out of leaded gasoline, which had been shown to adversely affect mental development in children.

The name "National Emissions Standards Act" is somewhat misleading when the case of California is considered. Congress amended Title II in 1977 to allow other states to enact the tougher California standards, whereas they were preempted from setting their own standards under the act. In short, the "national standards" referred to in the title of the law are actually not applied uniformly throughout the entire nation. Should a state choose to enact the California standards, they have to be exactly the same and must give automakers two years to prepare before they go into effect. Numerous states in the northeast have chosen the tougher California standards rather than the federal standards as a way to meet the National Ambient Air Quality Standards (NAAQS) of the Clean Air Act. The automotive industry has fought the application of California standards in other states in the courts, although they have generally been allowed to go into effect. The California standards are significant because they tend to be tougher and require the development of more new technology than the federal standards, as evidenced by an ongoing mandate for a percentage of all cars sold in California to be zero emissions vehicles. In addition, California's actions tend to be the model for ongoing national standards. Title II represents a form of creative state-federal interaction where Congress has taken an issue with national implications that is under the commerce clause power of the government, and it has granted a state with particular history, expertise, and necessity regarding auto emissions the ability to act as a policy laboratory for the nation. Many of the strides made in auto emissions, including the catalytic converter (which reduces pollutants at the tailpipe) and the gas-electric hybrid car now on the market in some states, can be traced to this type of federalism.

Title II of the CAA has led to emissions reductions, although the positive effects of this progress have been limited somewhat by an increase in the number of vehicles on the nation's roads as well as a rise in larger vehicles such as SUVs that emit higher volumes of pollution. According to a study quoted by Arnold Reitze in Environmental Lawyer, in 1997 transportation sources produced 76.6 percent of total national carbon monoxide emissions, 49.2 percent of total nitrogen oxide emissions, 39.9 percent of total volatile organic compound emissions, and 13.3 percent of lead emissions. These are certainly not trivial amounts of pollution, representing the fact that, while some successes have certainly occurred over the last three-and-a-half decades, the automobile continues to pose air quality challenges.

See also: Clean Air Act; Highway Safety Act of 1966

BIBLIOGRAPHY

Bailey, Christopher J. Congress and Air Pollution: Environmental Policies in the USA. New York: Manchester Press, 1998.

Dewey, Scott Hamilton. Don't Breathe the Air: Air Pollution and U.S. Environmental Policies, 1945–1970. College Station: Texas A&M University Press, 2000.

Reitze, Arnold. "Mobile Source Air Pollution Control." Environmental Lawyer 6 (2000): 309–27.