By Michael Squires
At its core, the Clean Air Act (CAA) is a health care statute. Congress found that “the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare.” In 1990 Congress amended the CAA to include a requirement to produce a report measuring the environmental, economic, but most importantly health benefits of the CAA. The effects of the CAA have been measured in a retrospective study from 1970 until 1990, and two prospective studies examining the anticipated health benefits of the CAA as far out as 2020. These peer-reviewed reports provide convincing evidence that the inversion along the Wasatch Front is more than just a minor inconvenience, but a major health issue.
The Wasatch Front struggles to meet federal air pollution standards, and the inversion makes it worse. The warm air that forms during the winter creates a lid trapping already high levels of pollutants in the valley. The effect of the inversion is concentrated levels of pollution that are unable to escape the valley. In effect, diverse pollutants linger creating a toxic soup that we inhale. Pollutants that the EPA has specifically identified as those that “endanger public health or welfare,” are the most prevalent. These pollutants include particulate matter (“PM”), nitrogen oxides (“NOx”), ozone (“O3”), and sulfur dioxide (“SO2”). Particulate matter is monitored by the EPA in two major variations: PM2.5 and PM10. Both are particulate matter, but PM10 is one-tenth the size of a human hair, and PM2.5 is approximately one-twentieth the size of a human hair. PM2.5 is most concerning to health authorities. As a result of its relatively small size, it can be easily inhaled resulting in lung damage, or even get into the blood stream. Asthma, heart conditions, and other chronic cardiovascular conditions have been attributed to the pollution that is made worse because of the inversion.
The primary concern about air pollution is the cost to human health, and consequently the economic costs that accompany poor health e.g. increased visits to the doctor, decreased employee productivity, medical treatments, etc. The research of economics professor Dr. Arden Pope from Brigham Young University has been analyzing the economic costs associated with air pollution for decades now. The EPA widely cites his work in their cost-benefit analyses. Specifically, they cite his work on the impact of PM on increased rates of chronic bronchitis, asthma, shortness of breath, hospital admissions, and even premature mortality. As a result of the CAA, Dr. Pope, and the EPA estimate that in 2010 there were 23,000 fewer cases of premature mortality for those 30 and older. For children and the elderly the impact of the CAA is even more significant. While the EPA decided to not publish the impact of PM on specific prenatal mortality rates, because the endpoints in the study have not been replicated, they acknowledged that PM10 and PM2.5 exposure at a young age could cause long-term health complications. Independent research conducted by the Institute of the Environment and Sustainability at UCLA supports this finding. For one study of their studies, the institute focused their attention on the impact of PM on infants, and found it to be a cause of short-term acute respiratory illness as well as long-term chronic diseases. For Utah children, and young families, this is posese a real problem. Coincidently, the areas of greatest concern during the inversion months are home to some of the highest birthrates in the United States – the Wasatch Front. Not only should these children’s health be protected, but not doing so will only cost typically younger families in medical costs that cost everyone of us dearly in a myriad of direct and indirect ways.
The EPA estimates that the CAA has resulted in average cost-benefit ratio of 4:1, and that estimate could be as high as 10:1. To put this into comparison even a really good 401(k) will average as high as an 8% return on investment. To make the comparison more plain, for every $1 that is spent on compliance with the CAA, the economy benefits by a factor of at least $4, compared to approximately $0.08 if the government invested that money. Investing money into cleaning the air is more than just good policy, it is good for Utah business. In fact, the EPA estimates that from 1990 until 2010, the CAA has resulted in $4.4 B in benefits due to increased worker productivity and $19 B in benefits to outdoor recreation, a major economic driver in Utah.
How Utah can act
Unfortunately, the Wasatch Front is experiencing very slow improvements in air quality. Just last month, the EPA issued a Notice of Proposed Rule Making (NPRM) declaring Salt Lake City, and Provo to be in serious nonattainment for PM2.5. (Remember, PM2.5 is one of most harmful air pollutants). Further, Salt Lake County, along with other counties along the Wasatch Front, is in nonattainment for another pollutant that contribute to PM formation, SO2, as well as PM10. Not only will this inhibit Utah’s economic potential, but the worsening air quality is significantly harming public health. Acting within the framework of the CAA, Utah can do more to mitigate these adverse side effects. Recently, a Utah State Republican Senator made the comment, “the Clean Air Act is working and that’s a big reason why our air is getting cleaner.” This statement was made after the Senator had stated that the federal government has done more than Utah to lead out on this issue. In light of this, what could the State of Utah do?
There are few solutions, and from a conversation I had with a representative from the Utah Department of Air Quality, some of these things are already happening: (1) funding for air quality monitors; (2) the incorporation of Tier III Fuels (low-sulfur); and (3) extending the tax credit for electric vehicles (EV), and broadening the terms of eligibility for fuel efficient vehicles. Other things that the State of Utah could do within the confines of the Clean Air Act would be: (1) a carbon fee; (2) extending the Notice of Violation (NOV) statute of limitations for the State of Utah; (3) increasing the stack testing frequency; and (4) increasing the amount and the duration of the EV tax credit.
Solutions – In progress:
(1) Funding for air quality monitors: An Environmental Scientist at the Utah Department of Air Quality, informed me that after waiting a number of years, the Utah State Legislature will be providing the agency additional funds to update and replace failing air quality monitoring equipment. This is vital because these air quality monitors supply the State and the EPA with the air monitoring data needed to enforce CAA provisions in Utah. Fortunately, a follow up conversation with DEQ representatives have confirmed that the legislature did provide that additional funding as needed.
(2) Incorporation of Tier III fuels: Alan Matheson, Executive Director at the Utah Department of Environmental Quality, acting on behalf of the Governor, has been working to incorporate Tier III fuels and vehicles as soon as possible, starting in January 2017. Tier III vehicles will cost approximately $72 more than other models, yet they will emit far less pollution. In fact, they reduce the amount of sulfates from 30 ppm to only 10 ppm. Sulfates are a major precursor to forming PM2.5, the harmful pollutant described above.
(3) Extending the tax credit for electric vehicles: Utah State Representative Steve Handy is has sponsored a bill (H.B. 29) that will extend the tax credit for electric vehicles (EVs), and plug-in hybrids. The tax credit amount will not change. It will remain at $1,500 for EVs and $1,000 for plug in hybrids.
Solutions – Ideas and proposals:
(1) Carbon tax: Utah State Representative Joel Briscoe is proposing a bill to place a tax on carbon. A relatively simple bill, the aim is to apply a free-market solution not only to pollution, but the emission of greenhouse gas (GHG) emissions. A fee, or tax would be assessed at the carbon’s entry point into the economy. A higher tax would be placed on carbon fuel sources, and that cost would translate to higher costs for goods that require more energy to produce. Consumers would eventually pay for the carbon tax through higher price of goods. Then, at the end of each year, the funds generated through the tax would be redistributed to individual households through tax credits. The distribution of the tax credit would be similar to the way in which the highly successful Alaska Permanent Fund is distributed.
Similar proposals are gaining traction in Washington.
(2) Extending the Notice of Violation (NOV) statute of limitations for the State of Utah: In the 2016 legislative session, Senator Escamilla and Representative Chavez-Houck sponsored and passed SB 49 – Statute of Limitations on Environmental Code Violations. This bill changed the statute of limitations for environmental code violations from one year to two years. This was a very positive change, but I believe that this is still insufficient. Stack testing or emissions testing for facilities is done some times at three- to five-year intervals. This provides the State Department of Environmental Quality with an insufficient time frame in which to bring enforcement actions against permit violators.
(3) Increasing the stack testing frequency: Environmental groups, as well as the EPA have recommended that Utah increase the frequency of emissions testing for facilities. This is more complex issue than what is in the Utah Administrative Code, and what has been incorporated into the State’s State Implementation Plan (SIP). (A State Implementation Plan is a state’s plan on how they propose to meet a federal environmental standard). However, it is still something that the State could revisit. Utah State Administrative Code sets a floor of testing done every five years (see UAC R307-165-2). I believe that this could be reduced. Continuous Emission Monitoring Systems (CEMs) could be an option if there is not a budget for DEQ to conduct in-person stack tests.
(4) Increasing the amount and the duration of the EV tax credit: With a majority of our inversion-inducing emissions coming from mobile sources, addressing motor vehicles is important. In addition to Tier III fuels and cars, the State’s tax credit for EVs could be increased. The present credit of $1,500 is nice, but does not provide a large enough incentive to purchasing an EV car. Further, if the State wants to encourage EVs, the terms need to be more certain. Piecemeal extensions of a year are insufficient. The EV tax credit needs to be part of a long-term air quality mitigation plan that provides auto retailers and consumers with greater certainty.
Prior to law school, Mike had an extensive career in government in politics. For several years he owned and operated his own non-profit and political fundraising company raising millions of dollars for nationwide races. He also worked as a staffer to elected officials at the state and federal level. It was his work as a Congressional staffer handling health care and environmental policy that eventually motivated him to enroll in S.J. Quinney. Most recently, he worked for the Utah Department of Environmental Quality on air quality issues as a Khazeni Environmental Law Fellow
 CAA 101 42 USC 7401
 CAA 312 42 USC 7612(d)
 CAA 108 42 USC 7408(a)(1)(A)
 https://www.epa.gov/sites/production/files/2015-07/documents/fullrept.pdf p. 53
 https://www.epa.gov/sites/production/files/2015-07/documents/fullrept.pdf p. 61
 Id. at D-24-25
 https://www.epa.gov/sites/production/files/2015-07/documents/fullrept.pdf at iii
 https://www.epa.gov/sites/production/files/2015-07/documents/fullrept.pdf at 97