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Join our work today to help us build a thriving and just clean energy future. 

What Is Air Permitting? Here’s Why Reforming It Is Key for Decarbonization.

There’s a flaw in the Clean Air Act that’s preventing us from cleaning up our air. Fixing it will bring clean air and better health to communities across the U.S.

3 scattered pages of EPA's Clean Air Act. Behind the pages is a red sky filled with smoke from industry.

At the heart of the Clean Air Act (CAA), our nation’s most important law regulating climate and air pollution, sits a handful of misinterpreted, outdated guidance documents that—get this—are paradoxically preventing communities from breathing clean air.  

Clearly, as the name alone suggests, these are not the results the lawmakers intended for the CAA. But today, issues with our backward air permitting system are averting climate progress and causing real-life impacts on air quality in unacceptably inequitable ways by disproportionately harming Black, Brown, and low-income communities. 

If left unaddressed, we risk slowing or stalling the impact of the Inflation Reduction Act (IRA), industrial decarbonization, and other critical efforts to create jobs and slash carbon pollution.

The law’s air permitting system has the potential to be an incredible tool since it covers every major industrial and power sector smokestack in the country. If, for example, the system required companies to shift toward the zero-emission technology that the IRA funds, it would transform our economy. But decades-old doctrines at the center of the CAA’s air permitting system are currently preventing the system from achieving its purpose: scale deployment of the cleanest technologies available at the time to protect people from pollution. And in some cases, this system is actually preventing cleaner, cost-competitive solutions from being adopted altogether. 

Black and white photo of President Nixon seated, looking down, and signing the Clean Air Act amendments.

President Richard Nixon signing the Clean Air Act Amendments of 1970 into law.

We all deserve to breathe clean air, and Congress set up the CAA’s programs to protect and benefit all of us. But outdated, loophole-ridden processes and misinterpretations of obscure draft documents are holding us back. To fix this massive public health issue and deploy the zero-emission technologies at the scale needed, we need to finally fix our air permitting system. 


Why You Probably Haven’t Heard About Air Permitting

If air permitting is such a big deal for public health and decarbonizing our economy, you might be wondering why you haven’t heard much about it. 

Well, that might be by design. 

The air permitting system is almost deliberately set up to discourage engagement and designed by industry lawyers to, unsurprisingly, benefit industry. Air permitting is unduly complex, time-consuming, and potentially expensive. Practically ancient documents and regulations that provide the foundation for air permitting programs lack clarity and have historically penalized industries that act as early adopters of clean energy technology. In other words, it’s a system designed for industry lawyers, not the American people. And it holds back permitting agencies that could otherwise be driving change. It’s time to fix it. 


So, What Is Air Permitting, and How Does It Work?

Almost every major industrial or power facility requires CAA permits and corresponding state air permits. These permits are supposed to require that the best available technology is being used to clean up pollution at each site. In other words, this is a major “check” that big polluting facilities—from factories to power plants—have to pass as they are built, modified, and operated. And therefore, it’s an opportunity for intervention across the board. 

In theory, when new, big polluting facilities are built or substantially modified, an air permitter reviews ways to control that pollution in compliance with CAA regulations. The controls the permitter selects are baked into new permits When a new facility is built or modified, the permitting engineer is supposed to evaluate the landscape of facilities and permits and pick the most stringent controls with the intent that pollution control technologies advance over time, permit by permit. Then, periodically, EPA raises the bar across the country by setting national standards to uniformly advance clean technology across the U.S. 

That’s the idea, anyway. But the problem is that this process is not happening reliably in ways that promote truly clean technologies. At least, not yet. 

Though we are in a clean technology boom, companies rely on regulatory indicators to ensure technologies are being adopted and spread nationally. Air permitting is the key to actualizing this, but its underlying systems first need to recognize and prioritize zero-emission technologies over weak attempts to “clean up” fossil fuels. Moreover, under the backdrop of unprecedented funding from the Inflation Reduction Act (IRA), there’s no better time to take these investments in clean energy technology to scale. 


Why Is Our Current Air Permitting System Failing Us? 

Here’s the first problem: The permitting process hasn’t caught up with modern technology. The antiquated agency-created tools and doctrines that ground this process assume factories and power plants have and will continue to use polluting fossil fuels like coal, oil, and gas. And they assume that permitting agencies can’t, or won’t, ask facilities to switch to truly clean renewable power. So, all the “solutions” are focused on mitigating that harm when we have the ability to eliminate it altogether. Under the old approach, permitters attempt to clean up smokestacks the best they can (aka not enough) instead of eliminating smokestacks altogether by using modern clean energy technologies like solar and wind power. 

Air permitting is supposed to require the “best available control technology,” but what’s happening in practice is dirty fossil fuel projects are getting permits, and more cost-effective, cleaner technologies are not even being considered. These same tools aren’t properly accounting for cumulative air pollution, so permit writers are further hindered in their ability to assess and identify solutions for communities that need them the most. As a result, we’re seeing durable air pollution disparities across the country with the bulk of pollution flowing into communities of color—the same communities that should instead be seeing clean technology deployments to clear their air.

A refinery spewing air pollution directly next to houses.

Phillips 66 Refinery in a Wilmington, California neighborhood’s backyard. © 2019 Emmett Institute/Flickr (CC BY-NC 2.0)

This brings us to the second part of the problem: A big reason why permit writers can’t do their job effectively is that the databases and guidance documents permitting agencies rely on are, themselves, out of date. 

Imagine if the guiding document you were using to judge modern science, public health, and technology decisions was based on something you saved in your drafts folder back in the 90s. It would probably be covered in WordArt and have all the forward-looking insight of a world shrouded by the threat of Y2K. Well, that’s not too far off from what EPA is working off of. Their key permitting manual is a blurry draft-version PDF from 1990, and their database of technologies is rarely updated. And, critically, that database does not contain clean energy alternatives or reflect the new IRA investments. Permitting agencies lack the tools they need to see our actual clean technology landscape and are left with options dating from the George H.W. Bush era.

3 pages of the Clean Air Act showing how poorly formatted the original document was.

Blurry and poorly-formatted pages from the Clean Air Act Amendments of 1990.

Lastly, the permitting program is full of loopholes, whereby polluters claim they do not require permits for their sources in the first place. Under the current process, industry gets to estimate how much pollution their new sources or modifications will create. Conveniently and unsurprisingly, these guesses tend to be ever-so-slightly below the permitting thresholds, meaning they avoid the permitting process altogether. In other instances, guidance documents allow industry to estimate the “net” pollution, where pollution from new smokestacks is allegedly offset by eliminating pollution elsewhere at a site. Permit writers often are asked to take industry at face value—despite the potential for bias and the tough-to-verify nature of their estimates. And if there is a disagreement, enforcement cases on technical permits often become years-long sagas backed by hypothetical pollution estimates and highly resourced, expensive industry lawyers.  

Bringing our air permitting system up to the standard it was originally intended will help us tackle the linked climate and health crises head-on. And because old agency documents created the problem, executive action can fix it.

Under the current apparatus, communities are exposed to high levels of pollution from poorly permitted facilities, and new technologies and climate investments are not spreading as quickly and equitably as they should. The distribution of nitrogen oxide (NOx) pollution maps directly onto non-white communities—a clear indication that the current system is failing us. But the good news is that EPA and state permitters can take action to fix air permitting—right now—without waiting on Congress. 


How We Fix Air Permitting in 5 Steps 

To address the failures of our current air permitting system, bring meaningful health benefits to disadvantaged communities, and tackle the climate crisis, EPA and state and local permitters must take the following steps:   

1. Close Permitting Loopholes

To close the permitting loopholes, local permitters can go beyond EPA to set very low or zero-based thresholds for pollution for facilities to enter the program. EPA and local permitters could also issue guidance to eliminate or reduce the use of “netting” and other accounting games that weaken the program. 

2. Update Doctrines to Make Clean Technology a Requirement in Permits

EPA needs to update its outdated agency documents to allow permit writers to require electricity and zero-emission technologies, instead of indefinitely perpetuating the use of fossil fuels. To do this, EPA must remove the “redefining the source” doctrine, which limits its ability to use these technologies, and emphasize the value of alternative analysis, which would prioritize clean technology and public health over poor attempts to “clean up” smokestacks. EPA shouldn’t artificially limit the clean technologies it considers, and ensure clean technology is “achieved in practice” if it’s used anywhere in the world on a similar source. Lastly, EPA should also insist permit writers consider the cost to communities in any calculations on cost-based limitations on clean technologies. 

3. Make It Easy to Identify Clean Technology

Permitters are often unaware of modern technologies because of the old, hard-to-use databases. As a result, they rarely require them. EPA must increase the visibility of available clean technologies in its databases, and state permitting authorities should regularly coordinate internally and with the public to identify new or emerging technologies. After sharing them with permit writers, they should establish a mechanism for community feedback. EPA and local staff should be funded to do this work, including staffing increases, as needed. 

4. Increase Public Transparency

Many folks, even within the climate movement, are unaware of how big of an issue permitting reform is, and that largely stems from a lack of public information. Many air permits, including large polluting sources, are impossible to find online. There are two main federal permit programs, New Source Review (NSR) and Title V of the CAA (Title V). EPA must file both NSR and Title V permits online in a user-friendly national database, along with all publicly noticed permits. State permitting authorities should do the same to increase transparency and public awareness. 

5. Prioritize Addressing Local Impacts

Regulatory agencies need to send clear signals to industry to prioritize local impacts and respect community concerns when making technology decisions. To do this, EPA can emphasize environmental justice obligations in its permitting decisions and enforcement reviews, and states can continue to pass laws mandating civil rights and cumulative impacts are respected. 

There’s nothing standing in the way of EPA and permitters to take these five actions—starting as soon as tomorrow. And they don’t need to wait for Congress. The time for change is now, given billions in IRA incentives to revamp our power and industrial sectors, using clean technologies about to be deployed. Reforming our permitting architecture is our opportunity to create a virtuous cycle, just as the CAA intended—by investing in clean air technologies and allowing them to spread nationwide, which then provides the basis for strengthening national pollution standards, further driving clean technology. 

As we work to implement the IRA, we need to deploy all our tools. The CAA’s air permitting system is a potential engine for change that has been rusting away when it should be working hard to power us forward. 

Tackling this issue now helps us lock in and accelerate IRA progress across the landscape, addressing the inequitable harms of fossil fuel pollution at the source, putting the CAA to work as it was intended, and delivering for communities who have long called for cleaner air and healthier neighborhoods.