Visibility protection: a new national goal
“Congress hereby declares as a national goal the prevention of any future, and the remedying of any existing impairment of visibility” caused by “manmade air pollution” in specified areas such as national parks. This “Visibility Protection” section [ 169A] of the Clean Air Act Amendments of 1977 and the additional visibility authority relating to prevention of significant deterioration (PSD) [ 165(d)], add an entirely new dimension and concept to the regulation of air pollution. The main thrust of the 1970 Clean Air Act and the remainder of the 1977 Amendments is to protect public health and welfare by means of explicit standards. These standards, while still subject to intense debate, are predicated on scientific calculations and determinations. On the other hand, visibility is arguably a subjective determination. Scientific models and other techniques may assist in quantifying visibility impairment, but at the moment such tools are in the developmental stages. Nonetheless, the Congressional mandate to improve visibility in Class I areas presumes that the regulators can link subjective aesthetic values to changes in visible light in the atmosphere and then trace the changes in the light to individual sources. By seeking to control visibility impairment, Congress therefore has introduced new elements of complexity,
uncertainty and controversy into the regulatory framework. In the legislative history, Congress states: “Certain areas of the U.S. depend on their intrinsic beauty and historical and archeological treasures as a means of promoting their economic viability.” Specifically cited are the “breathtaking panoramas” of the Grand Canyon and Yellowstone Park which attract millions of visitors each year. [Conf. Rep. to HR6161, p 2031. While other environmental statutes have considered “economic viability” never has such an elusive quality as “intrinsic beauty” been the premise for regulation.
Statutory scheme This Congressional concern resulted in two separate sections in the Amendments by which visibility impairment can be controlled by EPA, the states, or the federal land managers and other federal officials (normally within the Department of Interior) with jurisdiction over Class I areas. Section 165(d) requires that a visibility impact review be included in PSD regulations for source construction or expansion which may affect federal Class 1 areas, whether “mandatory” or redesignated. Under section 169A visibility regulations are to control existing as well as new sources of visibility impairment. To ensure that “reasonable progress” is being made toward achieving the national visibility goal, several specific steps are set forth. EPA must list (after consultation with DOI) the mandatory Class 1 areas in which “visibility is an important value.” It is this list which triggers visibility regulation and it currently includes 156 of the 158 mandatory Class I areas. They range from the obvious choice of the Grand Canyon to the less fathomable selection of the Breton Wilderness area off the Gulf Coast which consists of a group of islands four feet above mean low water, with no unusual topographical features or
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vegetation and from which numerous oil rigs are visible. EPA was further required to report to Congress by February 1979 on the methods available to achieve the visibility goal. The report is not yet finished but is expected “sbortly,” reflecting in part EPA’s difficulty in “identifying, characterizing, determining, quantifying and measuring” such methods and in developing modeling techniques for visibility. (For a detailed discussion of these visibility requirements see ES& T, March 1979, p 266). By August 1979 EPA was to have developed regulations which would provide guidelines to the states, set specific requirements for SIP revisions and define the degree to which existing sources less than 15 years old will have to retrofit. These regulations have been delayed and are now scheduled to be proposed by “the end of the year.”
Implications of the regulations Since the regulations will affect both existing and new sources, they have the potential to severely constrain the siting of new and expanded facilities, particularly in the western part of the country where most Class I areas are located. The subjective criteria upon which the regulations must be predicted, the difficulty in relating potential emissions to actual ambient air quality and the current lack of accuracy in long-range air quality modeling all combine to create considerable uncertainty as to the ultimate impact of the regulations. Experience indicates that uncertainty guarantees protracted litigation and delay. EPA has established a “Working Group,” which includes representatives from industry and environmental groups, to address the subjective and technical questions prior to proposal of the regulations. It is a forum which has the potential to begin resolution of the many problems in meeting Congress’ newest “national goal” in air pollution control. Volume 13, Number 7, July 1979
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