Air Quality - Keep perspective in air-pollution debate


In the debate over air pollution in Texas’ fastest-growing cities, including Austin, it sometimes seems like an ozone-laden sky is falling. Such is not the case. Although the 30th anniversary of Earth Day on April 22 found Austin facing a possible "non-attainment" designation for violating federal clean-air standards, the severity and timing of restrictions to be imposed are still somewhat hazy.
Most restrictions will not happen automatically when the U.S. Environmental Protection Agency (EPA) makes its designation, which is expected to occur no earlier than the first quarter of 2001.
One restriction, however, does kick in automatically, and it’s the one that would have the most far-reaching impact on our city’s quality of life. Called "transportation conformity," the requirement basically means that road-building projects involving federal funds must conform to a plan to achieve ozone-level attainment or the projects may not proceed.
What the restriction does not address is its own Catch-22 irony. Road-building projects are usually designed to relieve traffic congestion, and one of the worst polluters in town is an idling car trapped in gridlock. If Austin’s ability to expand its roadway system and make it more efficient is either slowed or stopped, then traffic congestion and air pollution will worsen. History suggests that it is high-growth areas such as Austin that have the most difficulty satisfying conformity requirements.
It helps to maintain some perspective on the issue.
The ozone standard, first adopted in 1971, was relaxed by 50 percent in 1979 and then revised in 1997 to make it even more stringent than the pre-1979 version. Monitored ozone levels from the past three summers have placed Austin in apparent violation of the newer, more stringent standard. Texas has until June 30 of this year to make its non-attainment designation recommendation to the EPA.
While some characterize this as an environmental wake-up call for Austin, it does not reflect any abject failure on the city’s part to control air pollution. Ozone levels have not worsened appreciably in Austin over the last 25 years, in spite of the obvious increase in cars and people, probably because Detroit has produced increasingly cleaner cars as required by increasingly stricter standards.
Although this regulatory trend has had a positive effect on air quality, the historic raising and lowering of the ozone standard and the general inability of communities across the nation to meet it — despite submitting EPA-approved plans — should cause concern for Austin.
The 1970 federal Clean Air Act contemplated nationwide attainment of the ozone standard in less than five years. Subsequent expectations for attainment by 1982 and 1987 also went largely unfulfilled. Even the 1990 statutory amendments have proven unreliable.
The reasons for this are complex and include the difficulty in accurately predicting ozone formation. More disturbing is the fact that there may be no clear demarcation between acceptable levels of ozone and levels that have an adverse effect on human health and welfare.
The U.S. Court of Appeals in Washington, D.C., has found that the EPA acted arbitrarily in setting the new standard by failing "to state intelligibly how much is too much." As a result of that May 1999 ruling, Texas and the EPA may proceed with non-attainment designations but cannot impose most restrictions until the litigation is resolved and, if necessary, the EPA repromulgates the ozone standard.
In the meantime, the public should become informed about the issue and pay close attention to the Texas Natural Resource Conservation Commission (TNRCC) and EPA as restrictions are developed and imposed.

It is likely that Austin motorists will eventually see mandatory auto emissions tests, higher gas prices and devices fixed to gas-pump nozzles to capture fumes. And if those measures help reduce ozone levels, Austin motorists should be able to take them in stride.

But limiting the city’s ability to improve its roadway system — a desperate need in this burgeoning high-tech metropolis — will cause far more harm than good in controlling air pollution in Austin. The public, legislators and rule-makers should keep that in mind.

James D. Braddock, an environmental lawyer with the Austin office of Haynes and Boone, is former general counsel of the Texas Air Control Board (predecessor agency to the TNRCC) and former director of air quality planning for the TNRCC. His law firm's environmental practice group, working on behalf of the Texas Attorney General's Office, was lead counsel for the State of Texas in the recent landmark lawsuit against Koch Industries.

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