(3) 
Much of the debate surrounding the Administration's Clear Skies proposal has focused onits cap-and-trade implementation scheme. (4) In some ways, the proposal'scap-and-trade provisions are its least significant aspects in terms of the proposal's interaction withthe structure of the Clean Air Act. EPA has already promulgated regulations using a regionalcap-and-trade program to control NOx emissions over the eastern United States (called the NOx SIPCall) under existing Clean Air Act authority, and has proposed other cap-and-trade regulations toachieve Clear Skies' level of reductions over 28 eastern states and the District of Columbia for bothSO 2 and NOx. (5) Inaddition, EPA has proposed other cap-and-trade regulations to achieve similar Clear Skies mercuryreductions, although their legality has been subject to some question. (6) 
Far more important to the fabric of the Clean Air Act are the various provisions in ClearSkies to alter, delete, or hold in abeyance for some time existing sections of the Clean Air Act withrespect to affected electric generating units and industrial sources that choose to opt into theprogram. The Administration has made it clear that with Clear Skies, it believes certain CAAprovisions are no longer necessary. Background: Regulating Criteria Air Pollutants Under Title I

National Ambient Air Quality Standards / New SourcePerformance Standards / Lowest Achievable Emissions Rate. A list of the authorities removed (or limited in new ways) would include (1)provisions for major sources (i.e., affected EGUs and opt-in units would no longerbe considered major sources); (2) changes to the hazardous air pollutant provisionsof Section 112, removing utilities and opt-in units from the sources whose mercuryemissions can be controlled under Maximum Achievable Control Technology(MACT) and residual risk provisions; (3) changes to Section 126, establishing amoratorium on the use of petitions to control interstate air pollution, and establishingsubstantially more stringent requirements for acceptance of such petitions after themoratorium; (4) reduction of the noncompliance penalties under the new SO 2 cap-and-trade program; (5) effective preemption of more stringent state requirementsfor NOx and mercury; (6) elimination of New Source Review (NSR) formodifications of major sources; (7) elimination of Best Available RetrofitTechnology (BART) requirements under Section 169A (which concerns visibilityprotection); (8) establishment of a statutory 50 km zone around Class I areas forimposition of the Prevention of Significant Deterioration (PSD) requirements(replacing a current regulatory 100 km zone); (9) exempting affected units locatedin PSD Class II areas from Class II limitations on pollution increments; (10)extension of deadlines for meeting the ozone and PM 2.5 NAAQS; (11) a de facto moratorium on the provisions of Subpart 2 dealing with ozone nonattainment in mostareas; and (12) a de facto moratorium on the conformity requirements (for highwaysand other projects) under Section 176 in most ozone and PM 2.5 nonattainment areas. Any such standards could not be implemented before 2018. Conclusion

In some ways, former Administrator Whitman has identified the central issuein Clear Skies' interaction with the Clean Air Act: Are the targets stringent enoughto permit the relaxing or removal of some provisions of the Clean Air Act designedto achieve the same thing with respect to electric utilities? In terms of utility controls designed to achieve the NAAQS, it must be statedthat Clear Skies will not achieve either the 8-hour ozone NAAQS or the fineparticulate NAAQS within the current CAA compliance deadlines, neither in termsof the reductions necessary to achieve those standards nor the timing of thereductions Clear Skies would achieve. EPA's analysis indicates that somenonattainment areas will need additional controls and time to reach attainment. (26) Clear Skies,as currently drafted, would effectively remove additional electric utility control fromthe suite of options available to states to achieve that additional level of control. (28) As currently drafted, Clear Skies wouldeffectively remove additional electric utility controls from the suite of optionsavailable to the states to further reduce mercury emissions. The ability of industrialsources to opt into the Clear Skies program would further reduce state mercurycontrol options.
The 109th Congress, like the two before it, is expected to consider proposals to controlemissions of multiple pollutants from electric power plants. The bills include anAdministration-based proposal, the Clear Skies Act (S. 131), which would control emissions ofsulfur dioxide (SO 2 ), nitrogen oxides (NOx), and mercury, and other bills that would control thethree pollutants plus the greenhouse gas carbon dioxide.
Much of the debate surrounding the Administration's Clear Skies proposal has focused onits cap-and-trade implementation scheme. But in some ways, the proposal's cap-and-trade provisionsare its least significant aspects in terms of the proposal's interaction with the structure of the CleanAir Act. EPA has already promulgated regulations using a regional cap-and-trade program to controlNOx emissions over the eastern United States (the "NOx SIP Call") under existing Clean Air Actauthority, and has proposed other cap-and-trade regulations to achieve Clear Skies' level ofreductions over 28 eastern states and the District of Columbia for both SO 2 and NOx (in the CleanAir Interstate Rule). In addition, EPA has proposed cap-and-trade regulations to achieve mercuryreductions similar to those in Clear Skies, although the legality of these regulations is morequestionable.
Critical to the fabric of the Clean Air Act are the various provisions in Clear Skies to alteror to delete existing sections of the Act with respect to both electric generating units (EGUs) andindustrial sources that choose to opt into the program. The Administration has made it clear that withClear Skies' comprehensive approach to EGUs and opt-ins, it believes certain CAA provisions needno longer apply to them, in some cases permanently, in others for as long as 20 years or under certainconditions. These include most statutory requirements for Prevention of Significant Deteriorationand attainment of National Ambient Air Quality Standards under Title I of the Act, as well as mostcontrols on hazardous air pollutants as they apply to EGUs and opt-ins. These changes woulddiminish the suite of options states currently have to achieve compliance with air quality standards.
In July 2001 testimony, then-EPA Administrator Whitman identified the central issue inClear Skies' interaction with current law: Are the emission reduction targets stringent enough topermit the relaxing or removal of current provisions of the Clean Air Act designed to achieve thesame thing with respect to electric utilities? EPA's analysis indicates that Clear Skies will notachieve either the 8-hour ozone or the fine particulate ambient air quality standards that the agencyrecently implemented within current CAA compliance deadlines. Some nonattainment areas willneed additional controls and time to reach attainment. Clear Skies addresses these issues in part byproviding 5 to 15 years of additional time, while effectively removing additional electric utilitycontrol from the suite of options available to states to achieve the standards. Similarly, withmercury, Clear Skies proposes relatively modest controls on electric utilities, and, as currentlydrafted, would effectively remove additional electric utility controls from the suite of optionsavailable to the states. The ability of industrial sources to opt into Clear Skies could further reducestate control options for both mercury and criteria pollutants. This report will not be updated.