It is COMMONLY believed that, unless Congress relaxes the present statutory pollution standards for 1978 model cars, the auto industry will have to shut down because those standards cannot be met. Thus, Leonard Woodcock of the United Auto Workers has already announced that he wants to meet with the new President in February to seek a legislative resolution of the issue. And those who accept the premise that something must give assume that Congress will do the giving. It is unthinkable, they reason, that Congress would close down the automakers, thereby causing massive unemployment and striking a severe blow at roughly one-sixth of the entire U.S. economy.
Yet there is another solution. It would require bold and imaginative action by the new President and the Environment Protection Agency administrator. But it is authorized by present law. And it would put economic forces to work for rather than against cleanup.
It adopting the 1970 Clean Air Amendments, Congress set stringent auto emission standards for the 1975 and 76 model years which would have cut pollution 90 per cent from 1970 levels. recognizing, however, that these standards would require the development of new technology, Congress gave the EPA head authority to put off enforcement for one year if the auto manufacturers could demonstrate that, despite their good faith efforts, the standards could not be met in time.
Subsequently, both EPA and Congress postponed enforcement of the 90 per cent reduction standards, and current (1977) model cars still fall short of that target. As the law now stands, however, the target must be met in the 1978 model year.
In the last session, each house voted to extend the 1977 standards through the 1978 model year, principally because the 90 per cent reduction standards simply cannot be met - at least, nor for most models - in the 1978 year. For one pollutant (nitrogen oxides), the technology still has not been perfected. For the two others (hydrocarbons and carbon monoxide), the lead time for production is now too short to meet a 1978 model deadline.
But this further congressional extension was not enacted into law because it was part of a comprehensive clean air bill that was filibustered to death in the Senate in the session's last days. In fact, the auto companies helped to kill the conference bill because, though it provided relief for 1978, it contained a tough schedule for auto standards thereafter.
The prototype 1978 cars, which are already being submitted to EPA for testing and ultimately "certification" for compliance with the law, are designed to meet the 1977 rather than 1978 standards. The companies have said, in effect, "These are the cars we plan to sell in 1978. We are confident that Congress will make them legal to sell because otherwise we can't produce any cars for 1978, and Congress wouldn't dare force that result." EPA has said it will test any cars submitted but will not and cannot "certify" them unless they meet whatever standards are in the law at the time production begins.
The Clean Air Act does indeed make it illegal to sell 1978 model year cars that have not been certified by EPA as meeting the 90 per cent reduction standards. The law also authorizes the federal courts to enjoin illegal sales. However, injunctions are not automatic. Even if the EPA administrator or concerned citizens petitioned the courts for such an injunction, it is doubtful that the courts would acquiesce. Courts usually deny injunctive relief,despite a clear violation of law, if they determine that such relief would be unreasonable in view of its total impact and the availability of alternative remedies.
"Closing down Detroit" would not only have enormous adverse effects on the economy, it would actually defeat the objective of cleaning the air. For without any new 1978 models, the normal and environmentally desirable "turnover" of older, dirtier cars in favor of new, cleaner cars would be drastically slowed.
FORTUNATELY, there is another remedy available under the Clean Air Act. The law authorizes the courts to impose stiff fines on manufacturers for each illegal car sold. In other words, cars could be manufactured and sold, and Detroit would not close down - provided a fine was paid on every polluting car.
Consider what the EPA administrator might do, particularly if he had the support of responsible leaders in Congress who might even join in his court petition.
He could annouce early in 1977 thathe intends to ask the federal courts to impose fines rather than prevent car sales next fall when the 1978 model year starts. He could annouce that he will request civil penalties bases on the manufacturers' estimated cost savings per vehicle as a result of meeting the 1977 rather than the tougher 1978 standards. Such penalties probably would be roughly $120 per vehicle.
He could also annouce that he will seek smaller penalties for vehicles which fail to meet 1978 standards but which pollute less than allowed by the 1977 standards. This alternative could be tied ot the more stringent standards already in effect in California. In this way, progress in moving from 1977 to 1978 levels would be rewarded economically, thus providing a competitive advantage to manufacturers who make cars cleaner.
For 1978 alone, the administrator might also announce that he would urge the court to waive penalties to the extend that the companies firmly commit equivalent amounts of money to additional research ad development work to hasten perfection of the technology to meet the legal standards. (With roughly 10 million new cars sold in a year, a $100-per-vehicle penalty would generat about $1 billion for potential R&D use.)
If the economic incentive penalty works as it should, it would not be needed much beyond 1978. However, if the incentive did not work satisfactorily in the judgment of the EPA administrator (still presumably in close consultation with the Congress), he could urge the courts to increase the penalty substantially after 1978. The legal maximum is $10,000 per vehicle.
Alternatively, after 1978 the administrator could seek court injunctions banning the sale of cars violating pollution standards despite the fact that their manufacturers by then possessed the technical ability to meet the standards for those particular models. The courts presumably would issue such injunctions because they in the 1978 model year. Within a relatively few years, manufacturers should be able to achieve the standards for most models.
The is economic remedy is not without potential problems. It success would depend heavily on the response of the federal judiciary to the EPA administrator's suggested basis for civil penalties. Consumers might balk at the idea of the temporary price increases which might result from the fines. (Of course, costs ofcomplying with pollution standards would themselves be passed along, as they always have been, but in either case the cost would be a very small proportion of the purchase price.) The political viability of the plan would rest largely on congressional support. Further, it might seem ironic for Congress, by inaction, virtually to ensure a situation in which a major industry must sell its products illegally.
But this remedy would give Congress time to deal thoughtfully with the entire spectrum of Clean Air Act amendment issues. Itwould eliminate the economic incentive to avoid or delay compliance with the pollution standards. In recent years, the state of Connecticut pioneered just such a system for facilities which pollute air and water, and a similar program was included in both the House and Senate 1976 Clean Air Act amendments for stationary sources of air emmissions.
Many people have sold the Clean Air Act short, claiming that it offers only an unrealistic "nulcear deterrent " (industry shutdown) as the threat for penalizing non-compliance with auto emission standards. In fact, the economic remedy available under the act may be capable of forcing the development and implementation of improved emmission control technology while keeping the auto industry in business. Continued production, with an effective economic incentive to achieve cleaner air, may be the best way to resolve the dilemma that now exists and to avoid an unnecessary confrontation.