Amending the Clean Air Act to Establish Democratic Legitimacy for the Residual Risk Program

Abstract

This article analyzes the flawed assumptions underlying the regulation of hazardous air pollutants under section 112 of the Clean Air Act. By tracing the legislative history and regulatory evolution of the Residual Risk Program under that provision, the article argues that Congress and the judiciary have developed an incorrect presumption that EPA can determine "safe" emission levels of hazardous air pollutants without considering the cost and feasibility of regulation (an argument that also has implications for EPA's process of setting national ambient air quality standards). The article demonstrates that EPA has avoided the illogical results of that presumption by considering cost and feasibility sub rosa and that EPA likely will continue to do so in the future. These sub rosa considerations prevent agency accountability and undermine the democratic legitimacy of EPA's standards. To remedy this flaw, the article proposes that the Clean Air Act be amended to expressly authorize cost considerations and addresses some of the issues such a change might raise.

Keywords: environmental law, EPA, Clean Air Act, risk-based standards, hazardous air pollutants, cost-benefit analysis