The 1977 Clean Air Act Amendments: A Tactical Retreat From the Technology-Forcing Strategy?

The Clean Air Act of 1970 utilized the innovative concept of health-based standards to achieve a technology-forcing strategy, which meant that protection of the public health could be the sole consideration in either attaining or setting an appropriate standard. However, this technique was strongly opposed for excluding from consideration any economic or technological feasibility issues as well as the social ramifications of its implementation. When applied to air pollution, this strategy necessarily involved an “all-or-nothing” result that forced stationary sources to either develop the technology necessary to limit emissions or be shut down. The Supreme Court’s decision in Union Electric confirmed the technology-forcing mandate and the resulting necessity of stationary source shutdowns in many areas of the country. Congress responded by enacting the Clean Air Act Amendments of 1977, which endorsed the technology-forcing strategy while removing the non-flexible attainment date and expanding the availability of extensions, revisions, and variances. This article considers post- Union Electric litigation involving stationary sources and the original technology-forcing strategy, and analyzes the impact of the 1977 Amendments on the continued viability of the technology-forcing strategy for stationary sources. To some extent any delay, extension, or variance emasculates the technology-forcing strategy. However, faced with the reality of non-attainment and the possible closure of important industrial operations, and apparently heeding Justice Powell's advice in Union Electric, Congress decided that delay was better than shutdowns.