Structurally Unsound: An Argument for Greater Efficiency through Amendments to the Clean Air Act

47 Pages Posted: 23 Dec 2010 Last revised: 9 Apr 2014

See all articles by Kevin O'Rourke

Kevin O'Rourke

affiliation not provided to SSRN

Date Written: 2010


In attempting to strike a balance between maintaining economic growth and protecting the environment, Congressional enactments have often tipped the scales in favor of the former over the later. The Clean Air Act (CAA), crafted by Congress along with other comprehensive environmental bills in the 1970’s, is a perfect example of such legislation. Although the CAA is a historic bipartisan success, over time it has grown in complexity and inefficiency with subsequent amendments and Environmental Protection Agency (EPA) rulemakings. The current incantation of the CAA is a legislative behemoth, one that tends to incentivize evasion of compliance, while inhibiting the implementation of new, cleaner industrial and electricity generating sources.

This paper traces the winding path of the CAA - from its inception as an essentially state-based regulation - to the many federally mandated programs that exist today. In laying out the CAA’s evolution, this paper demonstrates how new programs have been layered over one another in attempts to correct the inherent difficulties of efficiently implementing a cooperative federalism structure. Despite the best efforts of legislators and regulators, the result has been inefficient pollution reduction – as well as inefficient economic outcomes. By analyzing the various statutory tools that the CAA employs to encourage pollution reduction through the stationary source programs, this paper also argues that technology-based regulation has been pragmatically the most efficient and equitable way to achieve pollution reduction. This paper concludes with a reevaluation of the criticisms levied at federally mandated technology-based regulation and provides a solution to achieve more efficient future results.

Keywords: Clean Air Act, NAAQS, CAA, efficiency, cap and trade, cap-and-trade, BACT, MACT, SIP, FIP, overallocation, innovation, acid rain, Title IV, Waxman-Markey

Suggested Citation

O'Rourke, Kevin, Structurally Unsound: An Argument for Greater Efficiency through Amendments to the Clean Air Act (2010). Available at SSRN: or

Kevin O'Rourke (Contact Author)

affiliation not provided to SSRN

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