Congresswoman Martha McSally

Representing the 2nd District of Arizona

McSally Works to Prevent Arizona from Being Penalized for Going the Extra Mile to Comply with the Clean Air Act

December 21, 2017
Press Release
Introduces Bill to Add One-Sentence Fix to Uphold Long-standing EPA Interpretation

WASHINGTON, DC—U.S. Representative Martha McSally today introduced legislation that would prevent the 9th Circuit from penalizing Arizona and other western states for going the extra mile to comply with the Clean Air Act. Her one-sentence bill will uphold the EPA’s long-standing practice of allowing states to implement contingency measures early under the Clean Air Act.

“The Ninth Circuit gets 79% of its decisions overturned—and it’s no wonder, if all of their decisions are as unreasonable as this one,” said Rep. McSally. “States should not be penalized for going above and beyond to comply with the Clean Air Act—but that is exactly what this court ruling would do. No state should be punished for taking extra steps to be compliant—but even more unjust is the fact that this ruling puts those states, like Arizona, at a disadvantage. It’s unfair that the CAA would apply differently to different states. This common sense, one sentence bill prevents an unnecessary downward spiral.”

A recent decision in the Ninth Circuit has thrown a long-standing EPA practice into question. For over 20 years, the EPA has allowed state and local governments to implement contingency measures early, that is, before such measures are required or “triggered” as a matter of law.  Under the Clinton, Bush and Obama Administrations, the EPA allowed states early implementation of contingency measures, considering it “illogical to penalize nonattainment areas that are taking extra steps to ensure attainment of the NAAQS.”

However, the Ninth Circuit court’s recent decision, Bahr v. EPA, has undermined the EPA’s long-standing approach, ruling that the EPA cannot approve contingency measures if they were implemented prior to an area failing to comply or attain a NAAQS.

Because of this court decision, states and territories located in the Ninth Circuit—which include Arizona—may face the disapproval of contingency measures. Disapproval of contingency measures triggers federal sanctions under the Clean Air Act and can create significant negative impacts on economic development. It would lead to tighter controls on business and industry, and even the loss of highway funds.

This legislation proposes a simple, one-sentence fix to address the issues raised in Bahr. Specifically, it would enable contingency measures to be implemented early. Moving forward, it would ensure that a consistent policy is implemented across the country. This legislation preserves and does not alter the duty of a nonattainment area to comply with a NAAQS.  States will still need to ensure that SIPs contain all measures that are required in order to demonstrate that they will attain a NAAQS by the applicable deadline.