In July, WILL’s Center for Competitive Federalism issued a policy report and video which focused on a September 28, 2016, EPA proposed rule that raises Sheboygan County’s nonattainment designation from “marginal” to “moderate.” The proposed reclassification rule received significant resistance from state and federal lawmakers, the business community that will be directly affected by the proposed rule, and even the Wisconsin Department of Natural Resources. Now, several Wisconsin legislators have stepped up to offer a state-based series of solutions.

The policy report, Wisconsin’s No Growth Zone: The Impact of the Clean Air Act on Sheboygan County, specifically sheds light on the ozone nonattainment designation involving Sheboygan County, the impact of such a designation on businesses in the county, the potential re-designation of other counties along the shores of Lake Michigan, and concludes by offering several immediate steps Congress can take to alleviate the onerous requirements by providing flexibility to Wisconsin to meet ozone standards.

In response, Congressman Glenn Grothman aggressively pushed for a federal solution. He immediately published an op-ed, specifically citing to the WILL report while also highlighting a joint letter he wrote to EPA with Wisconsin’s U.S. Senator Ron Johnson. Grothman similarly highlighted WILL’s work when noting passage of H.R. 806, which delays the implementation of the EPA’s ozone standards in the Clean Air Act until 2025. The bill has been referred to the Senate’s Committee on Environment and Public Works.

But maybe most encouraging has been the response from Wisconsin state legislators. WILL’s efforts were highlighted by state lawmakers following the release of its report, in particular by Rep. Jesse Kremer, R-Kewaskum. And now a group of state legislators has released several pro-growth reforms – the Air Quality & Economic Opportunity package. Upon release of the reforms, Kremer noted “now is the time to liberate our ‘No Growth’ zones” and state Sen. Duey Stroebel, R – Saukville, emphasized the reforms are “about making sure that unnecessary and burdensome red tape is eliminated so all Wisconsinites can prosper regardless of where they live.”

As analyzed in the report and illustrated in the video, the air monitor located at Kohler-Andrae State Park does not provide an accurate reflection of the air quality in Sheboygan County. Instead, it monitors the quality of air that flows northwesterly from areas like Chicago, Illinois and Gary, Indiana. The EPA relied on this monitor to designate the county “nonattainment,” a crushing label that brings with it numerous regulations.  Most troubling is the fact a second monitor located northwest of downtown Sheboygan is often ignored. The data reflected by the second monitor would place the county in attainment.

The first reform in the package would directly address the inequity represented by reliance on the poorly placed Kohler-Andrae monitor. At noted by the LRB analysis, states are required to submit ambient air quality data to the EPA on a quarterly basis. The bill simply prohibits DNR from including the air monitoring site located at the Kohler-Andrae State Park in the network plan. Further, the DNR would be required to cease funding the operation and maintenance of the Kohler-Andrae monitor and to cease collecting data. Finally, the bill requires the DNR to request a waiver from any provisions that may be triggered by discontinuation of the Kohler-Andrae monitor.

The effect of this reform would not end monitoring of air quality. Instead, the DNR plan would simply be based on the more accurate second monitor located northwest of downtown Sheboygan – a monitor that, based on air flow, is more reflective of the actual air quality in the county and the impact of businesses physically located in the county.

In addition to directly addressing the flawed process by which data is collected in the county, the package includes several significant modifications to the regulations that can result from various air quality designations. Put another way, the package represents a real effort on the part of the state to eliminate unnecessary red tape.

With respect to vehicle emission limitations which are required by the federal government for specified Wisconsin counties, one bill would provide for an exemption for any motor vehicle “not less than 10 years old.”  This represents a broadening from the current exemption which is tied to the year 1995.  Another bill would require the DNR to identify and repeal all administrative rules that relate to the regulation of air pollutants that are not regulated under federal law. This would include an automatic expiration ten years after such rules took effect.

The final bill in the package would prohibit the DNR from requiring that a person sell reformulated gasoline if certain conditions are met. Currently under the Clean Air Act, reformulated gasoline is the only type of gasoline that may be sold in areas designated by the EPA. The bill requires DNR to request a waiver of the relevant provisions of the Clean Air Act.  If such waivers are granted, the DNR would be prohibited from preventing a person from selling nonreformulated gasoline.

Congress remains the key player in truly reforming the most crippling aspects of the Clean Air Act. It is therefore encouraging to see leaders like Johnson and Grothman taking the lead in encouraging a thorough examination of the regulations imposed on local units of government, businesses and Wisconsin residents. But states have an important role to play as well with respect to requesting waivers and even direct legislation.

Those who are calling for reform of the Clean Air Act want a clean environment for future generations. They simply want regulations to that end implemented based on the most accurate data available and by imposing the least restrictive means.  The package of reforms offered by Reps. Kremer, Cody Horlacher and Terry Katsma and Sens. Stroebel and Chris Kapenga would be a significant improvement upon the current regulatory regime.

Jake Curtis is an Associate Counsel at the Wisconsin Institute for Law & Liberty’s Center for Competitive Federalism.
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