SUMMARY OF TESTIMONY FOR PRESENTATION BEFORE THE SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS By THE INTERNATIONAL COUNCIL OF SHOPPING CENTERS Winston & Strawn, Washington Counsel The ICSC is the trade association of the shopping center industry. Its members number over 5,500 and include owners and operators of shopping centers; retail tenants of shopping centers; and lending institutions and other business firms involved directly or indirectly in the development, ownership, and operation of shopping centers. The shopping center industry is committed to meeting the mandate of the Clean Air Act that a level of ambient air quality which protects the health of all Americans be attained and maintained throughout the United States. The industry realizes that automobile-created pollution is a problem and that it will be necessary to make some changes in our transportation and land use patterns in order to meet the mandate of the Clean Air Act. And the industry is fully prepared to assume its fair share of the burden involved in meeting these goals. However, the real estate development industry has been told that it must shoulder an unfair portion of that burden. The principal mechanism provided by the Clean Air Act for the attainment and maintenance of the ambient standards with respect to carbon monoxide and photochemical oxidant is a set of emission standards for light-duty motor vehicles. Additionally, however, the Act provided that whenever and wherever a gap should exist between the reduction in aggregate emissions necessary to attain and maintain the standards and the reduction in aggregate emissions achievable through those emission standards, "land use and transportation controls" must be implemented to close the gap or to maintain the standard. 11 Unfortunately, these gaps have grown in size and number as a consequence of extending the timetables for implementing the direct controls on auto emissions. Perhaps all the extensions of automobile emissions control deadlines--both those that have been granted and those that have been requested--were, and are, necessary. In any event, the fact remains that as the Title II deadlines have been extended, conforming adjustments have not been made in the timetables for attaining the ambient standards. As presently written, the Act is inflexible in that respect, and land use and transportation controls become more draconian and more widely applied with each extension granted by EPA or the Congress. "Land Use and Transportation Controls" Under the Clean Air Act Congress did not define the phrase "land use and transportation controls" and established no priorities for the implementation of those controls. EPA has devised various strategies in the name of "land use and transportation controls" and those measures which will have a direct impact on real estate development are included in two regulations: indirect source regulations and parking management regulations. Controversy Surrounding the Federal Regulation of Indirect Sources From the first EPA proposals in October, 1973, the federal regulation of indirect sources has generated considerable controversy. The propriety of federal regulation of indirect sources has been brought into question by a series of studies which undercut the EPA approach. Several independent groups such as the National Academy of Sciences and the Council on Environmental Quality, have suggested that these indirect controls on auto emissions and indirect disincentives to discourage automobile use are high in costs, low in benefits, and often perverse and counter productive in their effects. Also there is serious question as to whether there now exists an adequate technical basis for these regulations. Finally, a report prepared for EPA indicated that the high degree of risk involved in the use of the Federal Indirect Source Regulation to reduce air pollution is matched by their high cost to the developer and, ultimately, to the public at large. iii The consensus reached by these observers, that land use and transportation controls not only are of marginal utility, at best, but also may occasion a perverse impact on the Nation's air quality objectives, has coincided with a feeling among many that it is unreasonable to establish expensive and disruptive limitations and requirements on the design, location and operation of indirect sources which are necessary only because the burden of cleansing the automobile has been lifted from the auto industry. Congressional Response Congress first responded to the questions and controversy spawned by EPA's land use and transportation controls by amending the Clean Air Act to eliminate parking surcharge regulations. Similarly, enforcement of all parking-restriction regulations issued by EPA has been delayed repeatedly by Congress through amendments to appropriation bills. The current limitations will be in effect until September 30, 1977. It is in this context that EPA suspended the implementation of the parking-related indirect source review indefinitely. Conference Committee Limitation on Indirect Source Review After long and thorough consideration, the 94th Congress produced a solution to the problems involved in federal regulation of indirect sources in Section 120 of the Conference Report on the Clean Air Act Amendments of 1976 (S. 3219) and included as Section 120 of S. 253, the bill now before this Subcommittee. Unfortunately this legislation was blocked in the last hours of the 94th Congress. ICSC believes the Conference Committee came up with a balanced, fair and constructive provision that will provide answers to the serious questions that exist about the need, feasibility and effectiveness of the regulation of indirect sources and will provide a framework for the development of reasonable and effective regulations where they are necessary. By requiring that there be a determination that an indirect source review program is "necessary" and basing this determination of necessity on the assumptions that the auto has been cleaned up as required by the 1970 Act and that all feasible stationery source controls and all practicable transportation control measures have been implemented, this provision assures that indirect sources will carry their fair burden of cleaning the air but will not be penalized by delays in compliance by the automobile and others. iv By requiring that there must be a determination that an indirect source review program will be effective before it can be implemented and basing this determination on an NAS study, the provision assures that programs which are technically deficient and which have a perverse impact on air quality will not be required. By providing that indirect source review programs be implemented by the states and localities, that Governors be given authority to grant variances where air quality improvements will result, and that there be a schedule for the development of regulations that allows for input from the NAS study, the states and localities and concerned citizens, the provision assures that these programs will be as technically sound and as politically acceptable as is possible. We urge that this provision be included in the Amendments to the Clean Air Act to be passed this session. To move forward with this provision in the form included in the Conference Report has several advantages: The particular language of the provision is the product of long and arduous study and work by both bodies, it has been agreed to by the representatives of both bodies in Conference, and it has wide support among both those who would regulate--the states and localities--and those who would be regulated. It is important to give relief in this area before the EPA appropriation limitation lapses and EPA reimposes or is forced to reimpose its indirect source and parking management regulations. Not only will the imposition of these inequitable, infeasible and counterproductive regulations have a disasterous effect on development with a resulting impact on jobs and the economy, but their imposition also will have a perverse effect on air quality. As usual, the impact will be more severe in both cases because of the delays in cleaning up the automobile that will be granted this year. Conclusion We believe that the Clean Air Act is in need of "midcourse corrections." We submit that one of these corrections should be the adoption of a provision limiting indirect source review authority similar to that contained in S. 253. We believe that other "mid-course corrections" should be made in the administrative procedure and judicial review provisions of the Clean Air Act and that these corrections should be those contained in our testimony as submitted or in Section 305 of last year's House passed Amendments. |