THE CLEAN AIR ACT OF 1990:
A PRIMER ON
CONSENSUS-BUILDING
U.S. ENVIRONMENTAL PROTECTION AGENCY
ENDORSED BY THE CLEAN AIR ACT ADVISORY COMMITTEE
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Clean Air Act Advisory Committee
Mr. Roger G. Ackerman Mr. Henry B. Schacht
President and Chairman and
Chief Operating Officer Chief Executive Officer
Corning, lncongorated Cummins Engine Co., Inc.
Mr. Martin Andreas Dear Colleague:
Senior Vice President Ms. Jananne Sharpless
ArcherDanielsMidland Enclosed is ‘The Clean Air Act of 1990: A Primer on Chairwoman,
Corporation Air Resources Board
Consensus-Building’ a straightforward guide to assist Stateof California
Mr. A. James Barnes
Dean, School of Public individuals and groups of all kinds in developing collabo-
and Environmental Affairs Dr. Bruce Stram
Indiana University rative techniques to implement the Clean Air Act. In creat- Vice President for CorPorate
Strategy and Planning
Mr. S. William Becker ing this document, EPA was assisted by the Clean Air Act Enron Corporation
Executive Director
State and Territorial Air Advisory Committee whose role is to guide EPA toward
Pollution Program Mr. George Sugiyama
Administrators and the successful implementation. Partner
Association of Local Air Pillsbury, Madison and Sutro
Pollution Control Officials The Clean Air Act of 1990 offers tremendous opportu- Washington. D.C.
Mr. Peter A. A. Berle nities for enhancing public health and protecting our envi- Mr. Lee Thomas
President Chief Executive Officer
National Audubon Society ronment for future generations. Today we are faced with Law Environmental Group
Mr. Frank S. Blake the challenge of implementing this landmark legislation.
Vice Pres.ident The Honorable
and G.eneral Counsel To ensure our success, your state, your industry, your C0fl Tommy G. Thompson
General Electric Industrial Governor
andPowerSystems stituents and your environmental agencies will need to Stateof Wisconsin
Dr. F. Peter Goes work closely together. To facilitate this cooperation, the
Executive Vice President Dr. Susan F. Tierney
wa Grace and Company U.S. Environmental Protection Agency (EPA) is promoting retanj. Executive Office
of Environmental Affairs
Mr. Robert H. Campbell a collaborative rulemaking process open to all parties. State of Massachusetts
President and
Chief Executive OfedEf The Primer is a companion to the “Introductory Guide Mr. Robert J. Trunek
Sun Company, Inc. Senior Vice President.
to Smart Implementation,” published last spring by the Manufacturing. Engineering
Mr. Iwan Choronenko and Technology
Director Clean Air Act Advisory Committee. We encourage you to ARCO Products Company
Environmental Protection
Commission of rely upon both of these publications in your own efforts to
Hillsbourogh County. ft Mr. Steve Wentworlh
put these laws in place. With your help, we can success- Board of Directors
Mr. Lawrence R. Codey National ( orn Growers
President fully usher in a new era of clean air for all Americans. Association
Public Service Electric
and Gas Company
Dr. Murray Weidenbaum
Mr. Ben Cooper
Senicd’ Vice President Director. Center for the
Study of American Business
for Government Affairs Washington University
Printing Industries
of America
Ms. Alma Williams
Mr. Charles A. Corry - Director
Chairman of The Board Arizonans for
and Chat Executrle Officer Clean Air Now
USX Corporation Members Of The Clean Air Act Advisory Committee
Dr. Donald A. Deleso Mr. Robert A. Wyman
Pre $jv4 ( and Partner
GRief Exesutive Officer Ms. Stephanie A. Foote Mr. Marc Himmelstein Ms. Mary Masulla Mr. Ernest Rosenberg Latham and Watkins
Research Cottrell Member • Director Legal Counsel Director. Los Angeles. California
Companies Denver City Council National Environmental Sheetmetal Occupational Legislative and Regulation
Strategies Health Institute Occidental Petroleum
Mr. David Doolger r. momas J. Godar, M.D. Mr. Frank G. Zarb
Sen icw t swnev Past President Mr. Charles R. lmbrecht Dr. Roger 0. McClellan Mr. William G. Rosenberg Chairman. President
Natural Resources Defense American Lung Association Clia,,rflan President Assistant Administrator and Chief Executive Officer
Council California Energy Chemical Industry for Air and Radiation Smith Barney Harris
Commission Institute of Toxicology U.S. Environmental Upham and Company, Inc.
Ms. Linda F. Golodner Protection Agency
Senator Vernon J. Ehiers President Mr. William Klinefelter Ms. Rebecca McDonald
President. Pro Tern National Consumers Legislative Director. Vice President,
Michigan State Senate Leag Industrial Union artment Strategic Planning Mr. John Rowe Mr. Leo C. Zeferetti
President and Legislative Director.
AFL/CIO Tenneco Gas Company Chief Executive Officer Building and Construction
Dr. Richard F. Eizember
Executive Director of Mr. George W. Haney Mr. Raymond L Ms. Helen 0. Petrauskas New England Electric Trades Department
MAilS Vice President, Environmental System American Federation
Corporate Enwenmental Affairs General Manager. Pmbdant arid Safety Engineering of Labor
Eli Lilly and Company Nitrc9en Fertilizer Operations
Farmland Industries, Inc. Aiencan Methanol tI ’i5tltute Ford Motor Company Dr. Steven A. Sahn
Professor and Director.
Mr. Larry Feldcamp Mr. Charles D. Malloch Dr. Walter Quanstrom Division of Pulmonary and Mr. Thomas Zosel
Partner Mr. Ben. G. Henneke Jr. Director, Regulatory Manage- Vice President, Critical Care Medicine Manager. Pollution
Baker and Bolts President meet. Environmental Policy Staff Environmental Affairs Medical University of Prevention Programs
Houston. Texas EnviroFuels. Inc. Monsanto Company Amoco Corporation South Carolina 3M Corporation
Note: The Clean Air Act Advisory Committee and The Environmental Protection Agency wish to acknowledge the assistance
of The Keystone Center and Energy and Environmental Analysis, Inc. in developing this document.
THE CLEAN AIR ACT OF 1990
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THE CLEAN AIR ACT OF 1990:
A Primer
On Consensus-Building
"// a diverse group can even come close
to consensus on as difficult an issue as
clean air transportation measures in New Jersey,
others ought to be able to come to consensus
on a broad range of air issues."
Janet Lussenhop, Director of
Regional Plan Association - New Jersey.
"The process offered a unique opportunity
to respond to growing concerns about the cost of
environmental protection by providing afommfor
the parties to share ideas and develop solutions
which led to a more efficient outcome."
,*
Beverly Hartsock, Deputy Director for
Government and Community Affairs, Texas Air Control Board.
Implementing The Clean Air
Act Of 1990
Implementing the new Clean Air Act is a tremendous challenge -
and an opportunity. This landmark legislation was enacted to reduce
and ultimately resolve the serious air pollution problem in the United
States. It directs the U.S. Environmental Protection Agency (EPA) to
develop strong and innovative environmental policies that should result
in cleaner, healthier air. While the framework for implementing the Act
was developed primarily at the national level, most of the specific pro-
grams will be crafted at the state and local legislative/regulatory level.
EPA has been recommending and using collaborative approaches
to carry out the Clean Air Act. In fact, the agency developed this primer
using this technique with the Clean Air Act Advisory Committee
(CAAAC), a diverse group of prominent people established to assist
EPA in implementing the Act. This primer is designed to assist agen-
cies, organizations and individuals embarking on collaborative deci-
sion-making processes.
his prii
is designec
assist agencies,
organizations
and individuals
embarking on
collaborative
decision-making
processes
A PRIMER ON CONSENSUS-BUILDING
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This primer contains three case examples of consensus-building
efforts. In each, state legislatures and state and local agencies joined with
business, industry and public interest groups to build mutually agreeable,
cost-effective, and innovative approaches for improving air quality. The
parties recognized the need to minimize the now common occurrences of
litigation and regulatory challenge that delay implementation.
EPA strongly encourages your active participation in developing
the policies and regulations of the Clean Air Act of 1990. We believe
that it is critical for all key affected parties to build new policies and
regulations collaboratively if implementation is to be successful.
EARLY Participation Can:
Assure that diverse interests and concerns are con-
sidered in the regulatory development process;
Allow consideration of a range of options;
Ensure that balanced implementation strategies
are built;
Enhance opportunities for regulatory innovation,
increased efficiency and lower compliance costs;
Offer you the opportunity to be a catalyst in form-
ing an effective consensus-building group; and
Help the regulatory agencies focus on the business
of cleaning the air more quickly.
EPA acknowledges that implementing a law like the Clean Air Act,
which affects so many different parts of society, will present conflicts
and different points of view. Following the advice of this primer will not
remove these legitimate differences, but rather should help people cre-
ate alternative approaches to reconciling these differences.
2
THE CLEANAIRAITOF 1990
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Overview
What can this Primer do to help?
A d interested individuals and groups in selecting appropriate con-
sensus-building processes. It describes the elements of effective public
policy-making, three broad categories of consensus-buildrg process-
es, and three recent applications of these processes.
Who is this Primer for?
Concerned citizens, public interest groups, environmental and
health organizations, individual companies, industry groups, and state
and local governments - anyone working to achieve the goals of the
Clean Air Act of 1990.
What are the case studies?
Three success stories about consensus-building processes used
to improve air quality:
- New Jersey’s Project: CLEAN AIR that formulated State
Implementation Plan proposals:
- Texas’ effort to amend the state’s Clean Air Act and develop
State Implementation Plans: and
— Denver’s establishment of a metropolitan air quality council to
address the ‘Brown Cloud”.
Elements 0!
Effective Public Policy-Making
The goal of environmental public policy and rulemaking processes
should be to produce results that are technically sound, fair, effective,
legally defensible, implementable. and enforceable. Consensus-build-
ing processes provide a vehicle to address these critical elements of
policy-making. The following elements should be considered prior to
initiating a collaborative process:
Participants: Who wants to and is able to participate effectively
in the decision-making process? Who has a stake in the outcome?
Who has the power to influence or block implementation of a pro-
posed rule? How will participants be selected? How can their input
be best structured? Will all stakeholders commit to attend meetings
and participate in dialogues?
be to produce
results th are
technically sour
fair, effective,
[ legally dcfr
implemcr
anc’ -
.4 l’RI\1FI ‘ \ ,\ P\ l ‘ -fl( 11 Du\’(;
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Substantive Issues: What are the concerns of the stakehold-
ers?” How will the concerns of those most affected by public deci-
sions be addressed? What level of knowledge of the substantive
issues does each stakeholder have?
Technical Issues: What are the relevant technical issues of con-
cern? How are they being analyzed? What mechanisms are being
used to resolve differences in technical interpretation of information?
Procedural Issues: What procedural issues are of concern?
Might they interfere with the decision-making or implementation
process? How should they be addressed? What is the timing of the
policy or regulation? Are there statutory deadlines involved?
Developers of a consensus process also should consider the
broader context of the regulation or policy under development.
Questions to ask may include:
+ How does the policy under development fit into the overall strategy
of the regulatory agency and the overarching political leadership?
+ Is the scope of issues to be discussed similar enough for all
interest groups to proceed?
+ Is there adequate time for the process(es) contemplated?
+ What are the potential economic and political ramifications?
+ What are the parties’ best alternatives to participation?
When To Use
Consensus-Building Processes
Consensus-building processes may be undertaken at many points
during implementation of the Clean Air Act. While it is rarely too late to
increase the public’s involvement, it is critical to initiate consensus-
building processes early enough to meaningfully affect regulatory
development.
Best opportunities include:
4 The planning and development stages of Clean Air Act
implementation
4 The early development or revisions to State Implementation Plans
4 Continuous regulatory activities where misinformation is prevalent
+ When obstacles or conflicts arise during regulatory or legisla-
tive development
4
THE CLEAN AIR ACT OF 1990
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Key Elements Of Success
Some of the key elements to successful consensus-building
efforts include:
+ Key interest groups are adequately represented;
+ Participants have sufficient decision-making authority;
+ Representatives are willing to fully commit to participating;
4 Ground rules and protocol for discussions are clearly articulated
and agreed upon by all parties;
4 All parties have adequate incentives and are willing to work
toward a negotiated agreement;
4 Adequate funding, including: 1) support for those who might not
otherwise be able to participate, but are key to successful imple-
mentation and 2) support for independent technical analysis
where necessary; and
4 Appropriate leadership is designated, usually in the form of a
chairperson or facilitator, who ensures that an organized, fair
and effective process is conducted.
Categories Of
Consensus-Building Processes
Consensus-building processes may be grouped into
three broad categories:
Information Exchange Workshops
Roundtables or Policy Dialogues
Regulatory or other Formal Negotiations
Each category describes a type of consensus-building process
that has been successfully used in Clean Air Act implementation.
Within each category, a variety of activities could be conducted.
Information Exchange Workshops:
Public meetings with representatives of diverse interest
groups, including a local or state regulatory agency.
Typically, these meetings are one-time events during which partici-
pants exchange ideas, express concerns, and then advise a regulatory
agency on a particular rule or policy. (As noted in the Texas case study,
A PRI\1ER () ‘\‘ CON.’ EN L ’S-BL ‘If D1\ ’G
5
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public workshops also can occur throughout the regulatory process.)
The format of an information exchange workshop might include
presentations with questions from an audience or work group discus-
sions on defined topics.
Information exchange meetings are suitable if:
+ Issues are ill-defined, too numerous or too complex to address in
a consensus-building setting;
s There is not enough time to initiate a consensus-oriented process;
+ Interested parties are not sufficiently informed about the issues
to participate in a decision-oriented process;
+ Individuals or groups interested in the issues cannot be easily
identified or are poorly organized;
+ Interest groups cannot support selection of representatives to
participate in a multi-party process.
Roundtables Or Policy Dialogues:
One-time meetings or a series of meetings involving
information exchange. fact-finding or consensus-building.
Typically, participants discuss issues and generate recommenda-
tions in the presence of all interest groups and a local or state regula-
tory agency. These meetings are usually advisory. Designated repre-
sentatives of affected interests attempt to provide consensus advice to
a regulatory agency.
Roundtables or policy dialogues may be appropriate if:
+ Issues for discussion are clearly defined, parties are informed on
the issues and representatives can be identified;
+ Regulatory agency seeks advice or consensus recommenda-
tions on policy or rules; and
+ Regulatory agency and parties are willing to commit the time
and resources necessary to participate.
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THE CLEAN AIR ACT OF 1990
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Regulatory Or Other Formal Negotiations:
Regulatory negotiations involve all affected interests
in a series of formal negotiation sessions aimed at
devising consensus agreements.
Regulatory agencies usually convene formal regulatory negotia-
tions. Consensus agreements then form the basis of an agency’s rules
or policies. Designated representatives of all affected interest groups
should be included in this type of process; balanced representation is
important. Participants usually represent and report back to specific
constituencies. The regulatory agency participates as a party and usu-
ally commits to use results of negotiations as the basis for proposals to
the greatest extent possible.
Formal negotiations may be appropriate if:
+ Parties desire a consensus effort and are willing to commit
the time and resources necessary to participate;
+ The decision-making body is willing to allow consensus
decisions to guide a policy or regulatory decision;
4 The regulatory agency desires an outcome supported by all
affected interests;
4 The parties desire to have the regulatory agency as a party to
negotiations so they have some assurance as to the nature of
the regulation or policy that will be issued;
+ An agency seeks a policy or regulatory outcome that is
more easily implemented (i.e. reduced administrative and
legal challenges);
+ An agency needs to address competing points of view early in
the regulatory process; or
4 An agency perceives that there are sufficient incentives,
the timing is right, and resources are available for such a
process to succeed.
I
A PRIMER ON CONSENSUS-BLILD1NG
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Case Studies Of CAA
Implementation
Across the country, there are numerous recent examples of effec-
tive consensus-building efforts. Some conclusions can be drawn from a
number of these examples that may be useful in structuring future poli-
cy-making efforts. These conclusions are drawn from three specific
cases, which are described shortly. The cases illustrate efforts to man-
age air quality problems collaboratively. While these cases may not be
precisely replicable, each air quality management problem will proba-
bly require a consensus-building process that is tailored to the specif-
ic needs of the situation.
Conclusions:
Provide Early Opportunities
People are concerned about the implementation of the Clean Air
Act and, at some point in the implementation process, will express
those concerns; it is better to provide an early opportunity for issues
to be raised.
Determine Technical Information
There are complicated technical and procedural issues involved in the
implementation process. These issues are often addressed most effec-
tively when diverse parties work together to determine the technical infor-
mation that is acceptable to all participating.
Utilize Workshops
To Provide Knowledge Base
Parties often need to become educated on the substantive issues
and the consensus-building process in order to effectively participate.
Preliminary educational workshops that provide a common knowledge
base for all interest groups can serve as the backdrop to more effec-
tive negotiations.
THE CLEAN AIR ACT OF 1 NO
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Allow For Flexible Goals
For these types of processes to be successful, the parties involved
need to work in good faith with each other toward a common goal. In
some cases the goal may be simply to share information and not solve all
the problems. In other cases, parties may want to engage in a consensus-
building effort and may be able to resolve many or all of the major issues.
Legitimize Process
With Responsible Authorities
Key parties must be committed to meeting together and achieving joint
goals in order for negotiations to succeed. A strong mandate from a respon-
sible authority to legitimize the process can be helpful in creating adequate
incentive, and thus the commitment from all key parties to participate.
Secure Adequate Funding
Adequate funding for conducting meetings, completing research and
assisting all key parties to attend is essential to completing effective con-
sensus-building activities. Parties experience frustration and disillusion-
ment if funds run out before agreements can be reached.
A PRIMER ON’ CO 5J NSL;S-BL 1l.DL\c;
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— CASE STUDY ONE —
Project: CI EAN AIR,
Imp roving New Jersey’s Air Quality
1. Non-attainment of federal air quality standards
in ground-level ozone and carbon monoxide,
with mobile sources as the main contributor.
2. Lack of public knowledge and involvement in
air quality problems and improvement.
3. Public concern regarding traffic congestion.
Twenty-five key leaders from industry, government, and citizen and
environmental groups were selected to serve as a Steering Committee.
Subsets of this Committee and outside experts were asked to serve on
the two Subcommittees. The project was directed by an independent,
non-profit organization.
This consensus-based process was designed to:
1. Increase public awareness of clean air problems in New Jersey.
2. Build support for implementing state and federal measures
to improve air quality.
3. Advise the Department of Environmental Protection and Energy,
and the Department of Transportation on the most acceptable
strategies to reduce mobile source emissions, with particular
attention to those that reduce vehicle miles traveled.
The process utilized both information exchange meetings and
more formal policy dialogues to educate the members of the Steering
Committee and public on air quality issues, to devise strategies to meet
federal air quality standards, and to make policy recommendations to
public agencies and state legislators. The process was initiated by a
New Jersey Department of Environmental Protection Commissioner,
and was publicly and privately funded in the amount of $500,000.
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THE CLEAN AIR ACT OF 1990
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Project: CLEAN AIR was conceived as a consensus-building effort to
develop state implementation plan (SIP) revisions and as a response to
the federal Clean Air Act requirement for states to develop and implement
appropriate programs to reduce the concentration of pollutants in the air.
When the process was initiated, New Jersey had been designated
by EPA as ‘non-attainment” for two pollutants for which there are feder-
al air quality standards: ground-level ozone and carbon monoxide. In
April of 1988 (in anticipation of new regulations under the Clean Air
Act) twenty-five key representatives of labor, business and industry,
environmental and citizen advocacy groups, and government agencies
met together to develop a consensual process that would guide state
officials in developing an air quality plan for meeting the federal carbon
monoxide and ozone standards. This group became the Steering
Committee which served as the policy-making body of the Project. Two
subcommittees were also formed: a Communications Subcommittee
and a Technical Subcommittee. These subcommittees gave detailed
oversight to the two programmatic elements of Project: CLEAN AIR.
Project: CLEAN AIR had no statutory authority.
Over a two-year period, the Committee and subcommittees, despite
diverse composition, reached general consensus on strategies to reduce
mobile source emissions and traffic congestion. Although the consensus
was not unanimous on every issue (several members objected to the rec-
ommendation to adopt the California LEV program), most recommenda-
tions were put forward by the entire Steering Committee. In the months
following the successful conclusion of this project, the state will hold pub-
lic meetings (as required by the SIP process) to discuss the adoption of
these recommended measures. A continuing challenge to the State will
be soliciting and recruiting participation of the broader public in the on-
going process of implementing these measures.
The Steering Committee initially devoted a large amount of time to
educating its members on the air quality issues relevant to New Jersey.
Various constituencies and technical experts addressed the Committee
in order to establish a common level of knowledge. Information
exchange was a crucial first step of the (eventual) consensus process.
Exchange of information was also accomplished through a public
outreach program. This program attempted to increase public aware-
ness of the severity of air quality problems in New Jersey. A public
opinion survey was conducted to inform the Steering Committee on
public attitudes towards air pollution issues. This public input proved to
be an important addition to the technical presentations on air quality
issues and pollution prevention! reduction technologies.
A PRIMER ON CO SENSI !S-BLJILDJ,N.;
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In addition to exchanging information, several other key compo-
nents led to a successful process and outcome:
+ A private, non-profit research and planning organization
(the Regional Plan Association) directed the project;
+ Two subcommittees were formed and two studies commissioned;
+ Regional Plan Association (RPA) worked closely with the
Steering and Subcommittees to assist in the planning and imple-
mentation of the consensus-building processes;
+ Studies commissioned by RPA for Project: CLEAN AIR provided
the Steering Committee with the data necessary to design rec-
ommendations for air quality programs.
The Technical Subcommittee (composed of several members of the
Steering Committee and outside professionals with expertise in air quality
planning or technical matters related to motor vehicle emissions and fuels)
assisted in the analytical portions of the Project. The Subcommittee’s main
job was to oversee the technical emissions and congestion study.
The Communications Subcommittee included members of the
Steering Committee and staff members of the state Department of
Transportation and Department of Environmental Protection. In conjunction
with the Regional Plan Association, the Subcommittee developed a com-
prehensive communications program. This program consisted of:
+ Publications about various aspects of air quality and
transportation issues;
4 A final report that was widely distributed;
4 A public television program (one-half hour) developed and
aired state-wide over a period of months;
4 Speaking engagements, slide shows, public service announce-
ments, press conferences, and public assemblies;
4 A public opinion survey;
4 Meetings with state legislators.
To assist the Steering Committee and Technical Subcommittee with
technical emissions questions, a Transportation and Emissions Study was
conducted to determine the impacts of a series of defined strategies on
automobile emissions and traffic congestion. An Economic Analysis was
undertaken to project the cost of implementing the Steering Committee
strategies and their effect on the state’s economy through the year 2010.
In its final stages, the Steering Committee entered into a more for-
mal policy dialogue process that eventually provided state officials with
THE CLEAN AIR ACT OF 1990
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a series of consensus recommendations to alleviate the problems of air
pollution and traffic congestion. The recommendations of the Steering
Committee attempted to balance economic costs, equity issues, and
implementation concerns with air quality and traffic congestion relief
goats. Their recommendations are described generally below.
QUTCOM
Project: CLEAN AIR produced consensus recommendations among
business and civic leadership in New Jersey to guide policy makers in
government agencies and members of the state legislature in develop-
ing air quality programs. The strategies developed through this consen-
sual process have been presented to officials who are currently devel-
oping the State Implementation Plan that will serve as the basis for air
quality programs in New Jersey for at least the next 16 years.
The Steering Committee’s recommendations were based on the
assumption that technological solutions, in and of themselves, wilt not
be enough for New Jersey to meet federal air quality standards. The
Steering Committee presented its recommendations based on priority
strategies, economic effects, and perceived public acceptance.
INGREDIENTS FOR SIJccESS
Initially, the Steering Committee devoted large amounts of time to
educating its members and soliciting information from the public at large.
The Committee used the services of an independent, non-profit research
organization to gather information that all parties would feel comfortable
using in negotiations. They held public meetings and published informa-
tion about air quality and transportation issues. Parties emphasized infor-
mation gathering, information exchange and public education before
embarking on consensus-building activities.
With a strong mandate for action from a New Jersey Department of
Environmental Protection Commissioner, the group then moved to policy
dialogues to gain agreement on the technical and policy issues. Because
the group jointly developed the information base, they were well equipped
to develop consensus recommendations that they could take to the legis-
lature. This process succeeded in large part because of the degree of
commitment by all parties and because the effort was well funded.
CONTACTS :
Mr. Larry R. Codey 80 Park Plaza, P.O. Box 1171 Tel: (201)430-5670
President, PubPic Service Newark. NJ 07101-1 171 Fax: (201) 242-6843
Electric and Gas Company
Member, Clean Air Act
Advisory Committee
Janet Lussenhop 60 Park Place, Suite 1603 Tel:(201)623-1133
Director, Regional Plan Newark, NJ 07102 Fax: (201) 623-1606
Association - New Jersey
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— CASE STUDY Two —
State of Texas legislative/Public
Participation Process
1. Need for amendments to the Texas Clean Air Act to
Implement the Federal Clean Air Act of 1990
2. Need for an EPA-approved state implementation plan
for air quality improvement.
Conduct a legislative/public participation process in three phases that
sought public input and involvement in the identification of specific amend-
ments to state law (for air quality state implementation plans). When possi-
ble, the process sought to reach consensus on legislative language asso-
ciated with those suggested amendments. Through participation in a
regional air quality planning advisory committee, groups made recommen-
dations on the development of the state implementation plan (SIP).
Representatives of key environmental, public interest, industry and
business groups, legislators and/or their staff, state elected officials
and agency personnel were all involved in various capacities during
each phase.
Three phases of action occurred sequentially, but also overlapped.
The three phases involved increasingly formal structures for generating
consensus recommendations. Phase I involved the use of information
exchange workshops and meetings. Phase II relied both on the
exchange of information and on more formal policy dialogues. Phase Ill
required the formation of official local advisory committees to make for-
mal recommendations to state agencies.
* -
This three-phase process utilized a wide variety of consensus-
based approaches. A more detailed description of each phase follows.
Phase I. public information exchange meetings, started before
the Clean Air Act of 1990 was passed. This phase included educational
outreach efforts developed to ensure the understanding of the general
public on the need for amendments to Texas legislation. A series of
THE CLEA AIR ACT OF 1990
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public workshops were held to outline issues on potential legislative
amendments. The groups participating in the workshops included envi-
ronmental and public interest groups, industry and business groups,
legislators and legislative staff.
Also during this period, key local government officials, agency
staff, and industry representatives from the four non-attainment areas in
Texas formed a Core communications group that tracked the Texas
legislative progress, and reviewed state, local and national develop-
ments regarding rules, laws, and scientific developments.
Phase II, the Legislative Roundtable, grew out of the perceived
need to build as broad an understanding as possible of the new CAA
within the affected community and its elected officials. The Texas Air
Control Board (TACB) analyzed the pending federal legislation and
determined that changes to the state enabling legislation would be
required in order to be in compliance with the new law.
Beginning in late 1990, a policy dialogue of key players was
formed and included: staff of sponsoring legislators, representatives of
the TACB, the Attorney General’s office and invited representatives of
key interest groups. Participants reviewed recommended statutory
amendments, initiated a series of legislative briefings for members of
key committees, and began close communications with the EPA staff
drafting the legislation needed to implement the new law. By January of
1991, a first draft of the needed legislative changes had been devel-
oped. Debate on a number of key issues continued with the Legislative
Roundtable resolving many of the issues.
Although complete consensus was never reached, the continuing
debates provided an excellent forum for all parties to air the facts and
opinions on all matters. Final legislative debate decided the remain-
ing issues and the legislative amendments were signed into law in
August 1991.
Phase III began in July of 1991 with the formation of local advi-
sory committees in the state’s ozone non-attainment areas. Local air
quality planning committees have been formed and work in conjunc-
tion with the metropolitan planning organizations (MPOs). These com-
mittees review TACB proposals on the draft SIP, inventory, modeling
and rule development. Task forces have been organized to make rec-
ommendations on specific topics. These groups include representa-
tives of local governments, local elected officials, the MPOs, trans-
portation planning agencies, businesses and environmental groups.
Committee recommendations are formally forwarded to the TACB. The
local committees encourage public attendance, participation and
comments during the monthly meetings. The committees will continue
the formal review process to address additional SIP revisions and
compliance issues in the post-SIP period.
\ PRIMER O .\ ( ,\ I:.\ L -BL’1LDU c;
15
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Amendments to the Texas Clean Air Act, adopted by the state leg-
islature, resulted from Phases I and II. Phase Ill produced recommen-
dations to the metropolitan planning organizations of the four ozone
non-attainment areas of the state. These have been forwarded to the
state for regulatory consideration. The Phase Ill work groups are
focused primarily on mobile sources of air pollution and associated
abatement strategies.
ING.iR!DIENTS FOR SuccEss
Texas utilized several types of consensus-building processes —
from soliciting and sharing information among parties to making formal
recommendations through chartered regional air quality planning advi-
sory committees. The key players were able to devise a suitable pro-
cess to meet the needs of the situation as the needs arose.
The consensus-building efforts were initiated by the state air quali-
ty management agency and other interested parties simultaneously. An
informal group of affected interest groups worked from legislative
action through to SIP implementation. This group worked effectively
under the direction of a chairperson from the group, rather than a neu-
tral facilitator or an agency staff person. The success of this process
relied heavily on the commitment of the parties to work together in
good faith. The process also included a large education/outreach com-
ponent, including public workshops and the inclusion of legislative staff
in negotiations.
ONTA CT:
Mr. Larry Feldcamp 3000 One Shell Plaza Tel: (713) 229-1573
Partner, Baker & Botts 910 Louisiana Fax: (713) 229-1522
Member, Clean Air Act Houston, TX 77002-4995
Advisory Committee
Beverly Hartsock 12124 Park 35 Circle Tel: (512)908-1108
Deputy Director For Austin, TX 78753 Fax: (512) 908-1123
Govt. & Community Affairs,
Texas Air Control Board
TI -fE CLEAN AIR ACT OF 1990
16
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— CASE STUDY THREE —
p
Denver Metropolitan
Air Quality Council (MAQC)
PROBLEM
1. Continuing non-compliance with federal air quality standards
(e.g., carbon monoxide, particulate matter).
2. Public concern over air pollution problems
(e.g. the “Brown Cloud”).
3. A Regional Council of Governments was unable to effectively
solve the pollution problems in the metropolitan area.
I
The organization was comprised of twenty members and a chair-
man, appointed by the Governor. The group included six business
leaders, five representatives of the legislature or state agencies, four
members of local governments, two environmentalists, two citizens at
large, one representative of the regional transit agency, and a chair-
man, president of a respiratory disease center.
r
The MAQC (an Air Quality Council) was formed to focus solely on
the air pollution problems facing the Denver metropolitan area. As the
designated lead air quality planning agency (LAPA) for the area,
MAQC was conceived to deal with the current air quality problems and
accelerate the region’s compliance with the clean air goals anticipated
in the Clean Air Act of 1990.
Specifically, the MAQC’s objectives were to:
+ Bring the area into compliance with federal air quality standards;
+ Undertake lead planning responsibilities for the development
of the state implementation plan;
4 Provide analyses regarding air quality problems facing the
Denver metropolitan area;
4 Develop strategic plans; and
+ Advocate the implementation of recommended programs
through existing decision-making and regulatory bodies and
through voluntary public/private sector agreements.
:1 PRI.\!ER (i,\T CO,\ E \’’ -BL’(LDJ ’G
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MAQC was established in 1985 to assume the responsibilities of
the Denver Regional Council of Governments (DRCOG) in air quality
planning. This single focus allowed the MAQC to concentrate on pollu-
tion control issues for the Denver metropolitan area and plan regional
programs without being distracted.
MAQC was designed and internally organized to serve as an effec-
tive advocate for obtaining community investment in the planning pro-
cess. The MAQC advocated the implementation of cleanup programs
through existing state and local decision-making bodies; it had no
statutory power to implement pollution control programs.
MACC, through Full Council, subcommittee and staff meetings,
devised recommendations for pollution control in virtually all sectors of
the metropolitan region The MAQC (Full Council) was composed of a
wide variety of interests and expertise.
To focus its priorities MACC established Carbon Monoxide
(CC) Ozone and Particulate Matter 10 (PM 10)/Brown Cloud
Committees The members of the Committees were made up of
members from the Full Council Throughout the process the
Colorado Department of Health (CDH) and the Regional Office of the
U.S. Environmental Protection Agency (EPA) augmented the MAQC’s
staff and provided technical expertise and guidance to the decision
making process
The initial stages of MAQC deliberations were information develop-
ment and exchange. Typically, the Full Council decided which issues
to address and directed the MAQC staff. Staff examined the advan-
tages and disadvantages of reasonably available programs for reduc-
ing pollution from major sources and presented the information to the
Full Council. Meetings frequently included presentations by expert wit-
nesses and panels of experts who were convened to discuss reports
and address issues of controversy. Both staff and panelists were sub-
ject to questions from committee members and the public audience.
These expert panels would commonly examine the projected costs and
benefits of pollution control options and respond to interest group con-
cerns and questions.
Based upon the information generated from these meetings and
detailed research, the staff would then prepare briefing reports for
the two Committees. The Committees would review the presented
issues, advantages and disadvantages of recommended control
strategies and would make a recommendation to the Full Council.
The Full Council, after reviewing the information and recommenda-
tions provided by the technical committees, would commonly
THE CLEA AIR ACT OF I )O
18
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request presentations by experts to assist in clearing up lingering
questions, suggest changes to the staff report and, finally, make its
control recommendation. All meetings of each Committee allowed for
public input.
Input from the public came through board members and the inter-
ests they represented, through direct participation at meetings (ques-
tions to board members, staff and expert panelists) and through meet-
ings with staff or parties engaged in support research. No formal nego-
tiations were held.
INGREDIENTS Foa SUCCESS
In the Denver Metropolitan Air Quality Council (MAQC) case
example a separate entity was formed to focus exclusively on Denver
Metro air pollution problems. This, combined with a strong mandate
from the Denver city government, gave the MAQC an opportunity to
explore and initiate new programs. The MAQC also had the benefit of
strong private sector participation in deliberations. The Denver
Chamber of Commerce got involved in improving air quality, recogniz-
ing that poor air quality was “bad’ for Denver businesses. The MAQC
also benefitted from favorable media attention that supported the ini-
tiatives. With the support of MAQC technical staff and a number of
technical advisors, the agency was able to develop, and later adopt, a
series of control strategies. MAQC recognized the importance of
developing technical information acceptable to diverse interest
groups. They assembled expert panels to examine control options and
then interacted with the panel regarding its recommendations. The
Denver process also used subcommittees to address specific issues.
The Full Council developed consensus recommendations that were
forwarded to the Colorado Air Quality Control Commission and many
local City Councils.
The MAQC established a string of early, small air quality success-
es. The strong coalition of public, private and political support enabled
it to identify and promote implementation of pollution controls in virtually
every polluting sector. Specifically, the major programs the MAQC
helped to devise and implement included:
4 Compressed Natural Gas (CNG) Fueled Buses
4 Wood Stove Emission Standards
4 Wood Burning Controls (including episodic wood burning
bans on high pollution days)
4 Oxygenated Fuels Programs
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+ Controlling Emissions at the Public Service Company
and Major Industrial Sources
+ Diesel Fuels Program
+ Reducing Vehicle Miles Travelled
+ Phase-out of Wood Units in New Home Construction
4 Strengthened the Gas and Diesel Vehicle
Inspection/Maintenance
Note: While the MAQC operated for several years, it was reformed
in 1989 into the Regional Air Quality Council in order to better address
the concerns of all constituencies in the region.
Ms. Stephanie A. Foote 3275 South Steele Street
Member, Denver City Council Denver, CO 80210
Member, Clean Air Act
Advisory Committee
Tel: (303) 692-8929
Fax (303) 758-4102
c”
I I
‘ I
ISBN 0—16—036250—4
90000
II
9 780160 36250
For cite by the U.S. Ui vernmcto Printtti Office
Superintendent of Docurnenh. Mail Stop: SSOI’. Washington. DC 2i)402-932X
ISBN 0—16—036250—4
I
20
THE CLEAN AiR AC! OF 19 )O
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Sckcted Reference Documents
Note: A roster of organizations
that provide dispute resolution services is available from:
The National Institute for Dispute Resolutions
1901 L Street, NW.. Washington. D.C. 20036
Tel 202-266-4764
• Bacow, Lawrence S., and Wheeler, Michael. Environmental Dispute Resolution.
New York: Plenum Press, 1985.
• Bidol, Pat. ‘Designing Environmental Conflict Management Approaches for State
Natural Resource Agencies. “Ann Arbor, Mich.: University of Michigan, School of
Natural Resources, 1982.
• Bingham, Gail. Resolving Environmental Disputes: A Decade of Experience.
Washington, D.C.: Conservation Foundation, 1985.
• Bingham, Gail, Vaughn, Barbara, and Gleason, Wendy. Environmental Conflict
Resolution: Annotated Bibliography. Palo Alto, Calif.: RESOLVE, Center for
Environmental Dispute Resolution, 1981. Available from The Conservation
Foundation.
• Bleiker, Annemarie, and Bleiker, Hans. Citizen Participation Handbook for Public
Officials and Other Professionals Serving the Public. 3rd ed. Laramie, Wyoming:
Institute for Participatory Planning, 1978.
• Brown, Cherie R. The Art of Coalition Building: A Guide for Community
Leaders. New York: American Jewish Committee, 1984.
• Carpenter, Susan L., and Kennedy, W.J.D. Consensus Building: A Tool for
Managing Energy-Environment Conflicts. Wye Plantation, Maryland: The
Management of Energy-Environment Conflicts, May 20-23, 1980.
• Doyle, Michael, and Straus, David. How to Make Meetings Work. New York:
Playboy Press, 1976.
• Ehrmann, John R. and Bidol, Patricia and Lesnick, Michael, and Crowfoot, James.
Bibliographies for the Study of Natural Resources and Environmental Conflict.
Chicago, Ill.: Council of Planning Librarians, 1981 and 1983.
• Fisher, Roger and Ury, William. Getting To Yes: Negotiating Agreement Without
Giving In. Penguin Books. 1981.
• Goldberg, Stephen B., Green, Eric D., and Sander, Frank E.A. Dispute Resolution.
Boston: Little, Brown, 1985.
• Harter, Philip J. “Negotiating Regulations: A Chance for Actual Participation.”
Environmental Forum 1, no.6 (1982):8-11.
• Harter, Philip J. “Regulatoiy Negotiation: The Experience So Far.’ Resolve, Winter
1984, pp. 1ff.
• Huelsberg, Nancy A., and Lincoln, William F., eds. Successful Negotiating in
Local Government. Practical Management Series. Washington, D.C.: International
City Management Association, 1985.
• McCarthy, Jane, and Shorett. Alice. Negotiating Settlements: A Guide to
Environmental Mediation. New York: American Arbitration Association, 1984.
• Moore, Christopher W. The Mediation Process: Practical Strategies for
Resolving Conflict. San Francisco: Jossey-Bass, 1986.
• Loew, William R., and Ramirez, Alann M. “Resolving Environmental Disputes with
ADR,”The Practical Real Estate Lawyer, May 1992.
• Raiffa, Howard. The Art and Science of Negotiation. Cambridge: Harvard
University Press, 1982.
• Reilly, William K. “Who Should Pay?” Dispute Resolution Forum, March 1984.
• Susskind, Lawrence and Cruikshank, Jeffrey. Breaking the Impasse: Consensual
Approaches to Resolving Public Disputes. New York: Basic Books, Inc., 1987.
• Talbot, Alan R. Settling Things: Six Case Studies in Environmental Mediation.
Washington, D.C.: The Conservation Foundation, 1983.
I
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