EPA and White House Clash Over Ozone Standards

Ozone Rule air pollutionSummary: President Obama’s rejection of a controversial new air pollution rule pleased industry but angered environmental and public health advocates heading into the presidential election season.

The industry buzzwords “regulatory costs” and “economic burdens” have special appeal in the current economic climate. But serious problems from ozone exposure also impose significant costs and burdens on society.

Tension between President Obama and the Environmental Protection Agency over the Clean Air Act reached a crisis on September 2, 2011, when the president rejected EPA Administrator Lisa Jackson’s proposal to lower the eight-hour National Ambient Air Quality Standard for ozone from 75 parts per billion to 70 parts per billion. While praising the EPA’s actions under Jackson, Obama emphasized the “importance of reducing regulatory burdens and regulatory uncertainty” in a time of economic recovery. Although hailed by industry, the president’s statement received heavy criticism from environmental and public health groups.

Ozone forms when sunlight interacts with other pollutants in the air, namely volatile organic compounds and nitrogen oxides. Increased levels of ozone near the ground can trigger respiratory ailments and worsen asthma, bronchitis, and emphysema.  Children and the elderly are particularly at risk. According to the EPA, ozone exposure increases the risk of premature death.

Under the Clean Air Act, the EPA has established air quality standards for six criteria pollutants: ozone, lead, carbon monoxide, nitrogen dioxide, sulfur dioxide, and particulate matter. These standards are intended to protect the public health and welfare. In contrast to other statutes aimed at curbing pollution, the Clean Air Act does not give authority to the EPA to directly regulate sources of criteria pollutants. Instead, the EPA sets nationwide standards and requires the states to meet these standards through state implementation plans, which directly regulate individual sources such as factories.

Every five years, the EPA’s Clean Air Scientific Advisory Committee has the obligation of reviewing the scientific literature and recommending to the EPA administrator revisions of the air pollution standards. Over time, standards have been lowered, in part due to a better understanding of how ozone harms human health. The most recent revision to the ozone standard came during the George W. Bush administration. Although the EPA’s scientific advisers recommended a level of 60-70 parts per billion, the EPA proposed a less stringent standard of 75 parts per billion in 2008. This decision led to litigation by groups arguing it was either too stringent or not stringent enough.

After President Obama appointed Jackson as EPA administrator, the litigation was stayed after she pledged to review the standards by 2010—three years before the end of the required five-year review period. In January 2010, the EPA agreed the 2008 standard was not stringent enough and published a proposed rule that would have lowered the 75 parts per billion standard to meet the 60-70 parts per billion range recommended by the committee. A complete draft of the final rule was prepared in June 2011 and submitted to the White House.

Cass Sunstein, administrator of the Office of Information and Regulatory Affairs, part of the Office of Management and Budget, asserted the new rule would not “promote predictability and reduce uncertainty.” Further, he said any new considerations “must be based on the best available science” and that the EPA should wait for a new report from the committee rather than implement a new rule based on a reinterpretation of old data.

The action of the White House has drawn criticism on several fronts. Some see it as a concession to conservative opponents of the EPA in advance of the upcoming election. Others note the conflict of economic interests and environmental protection. Indeed, if the EPA were to set the standards based on the economic concerns expressed by the president, this might constitute a violation of the Clean Air Act. In the 2001 decision Whitman v. American Trucking Associations, Inc., the U.S. Supreme Court expressly held that the EPA may not consider costs in setting air quality standards. By contrast, the states may consider costs in determining how to meet the standards. By not going forward with the final rule based on the White House’s concern for the effect on the economy, Administrator Jackson may be in violation of her duty to set standards without regard to costs. On October 11, 2011, the American Lung Association and other organizations filed a lawsuit challenging the EPA’s action. It is anticipated that the challenge will include this argument.

As a practical matter, a case can be made for waiting until 2013 for a more thorough review of the ozone standard. Implementing new air quality standards is complex. States may be hesitant to implement new standards because they have to be reviewed again by 2013. With another review deadline just two years away, some have expressed concern over committing valuable resources to meeting new standards. The prudent course might be to use the entire five-year period for the review.

Going forward, the EPA intends to continue implementing the current standard of 75 parts per billion. Implementation involves determining which areas of the country are meeting the standard. This is necessary for determining what steps must be taken to bring all areas into attainment. The EPA now expects area designations to be done by mid-2012. A proposed rule is due in October 2013 with the final rule due by July 2014. Both deadlines are safely after the presidential election.

Prudence and politics aside, this is not just a policy debate or an election talking point. Delays in adopting tougher ozone standards put Americans at continued risk for heart and lung disease.  While CEOs look to the next quarter and politicians plan for the next election year, a delay in implementing tougher ozone standards could trigger health problems that last a lifetime.