New Ozone Standard Leaves Smog in the Air

EPA has set the limit for pollution-forming ozone in the air to 75 ppb, despite the unanimous advice of the Clean Air Scientific Advisory Committee to set it between 60-70 ppb (more here on the health effects of ozone). This is hardly a surprise, given the Bush Administrationâs record. But in this case, itâs apparently not enough to make a single standard insufficiently protective; administration officials have decided to take on the rulemaking requirements of the Clean Air Act. The Washington Postâs Juliet Eilperin explains:

Administrator Stephen L. Johnson also said he would push Congress to rewrite the nearly 37-year-old Clean Air Act to allow regulators to take into consideration the cost and feasibility of controlling pollution when making decisions about air quality, something that is currently prohibited by the law. In 2001, the Supreme Court ruled that the government needed to base the ozone standard strictly on protecting public health, with no regard to cost. â¦

Documents obtained by The Washington Post indicate that White House officials chafed at the idea that they could not factor costs into the ozone rule, which requires setting one standard for protecting health and a separate one for protecting public welfare, and that the president himself intervened in the process Monday. In a March 6 memo to the EPA, Susan E. Dudley of the Office of Management and Budget questioned the need for two different ozone limits, noting that the Clean Air Act's definition of public welfare includes "effects on environmental values." The EPA's Marcus C. Peacock replied the next day that it is important to keep in mind that "EPA cannot consider costs in setting a secondary standard."

Matt Madia expounds on the two-rule issue and the White Houseâs involvement:

While EPA's decision to set a standard of .075 ppm had been a foregone conclusion, but officials wrangled over whether to set a separate secondary standard. Under the Clean Air Act, EPA may set a secondary standard for the protection of public welfare. (The primary standard is to focus on public health.)

In the past, EPA has chosen not to set a secondary standard for ozone; but during this revision, the agency had prepared to set a more tailored, seasonal standard citing the vulnerability of certain plants sensitive to ozone's deleterious effects.

However, just days before EPA was ready to issue the new primary and secondary standards, Susan Dudley â the administrator of OMB's Office of Information and Regulatory Affairs who President Bush recess appointed last April â wrote to Johnson March 6 complaining EPA had not considered economics in proposing a new secondary standard and raising questions about the scientific justification for the decision.

Marcus Peacock, EPA's Deputy Administrator and Regulatory Policy Officer, shot back in a letter dated March 7. Peacock said EPA is prohibited from considering costs in setting the secondary standard, and that the agency had provided ample scientific rationale for its decision. An internal memo dated March 11 shows EPA was ready to ignore Dudley's complaints and set a new seasonal secondary standard for ozone.

Apparently, that's when the head honcho stepped in. According to Washington Post reporter Juliet Eilperin, "The rule's preamble indicates Bush settled the dispute March 11, saying the president concluded the secondary standard should be set 'to be identical to the new primary standard, the approach adopted when ozone standards were last promulgated.' "

The president's direct intervention in a rulemaking is rare and, in this case, damaging. The Decider at work.

He also reminds us that in the months leading up to the decision, EPA and OMB had several closed-door meetings with from the oil, auto, and electric industries.

This seems like a good time to revisit a statement from a journal of the American Thoracic Society, written when EPA was considering the new ozone standard (emphasis added):

Based on the strength of the scientific knowledge base regarding the adverse health effects of ozone air pollution, and the magnitude of public health impact such pollution has on the United Statesâ population, especially on children, the American Thoracic Society has recommended that the EPA take action now to issue a stricter ozone standard of 0.060 ppm/8 hours. This recommendation is consistent with that of a number of other prominent expert scientific panels, including the EPAâs own Childrenâs Health Protection Advisory Committee and the Clean Air Scientific Advisory Committee. Any action less stringent than a 0.060-ppm standard will effectively represent a failure of the EPA to fulfill its mandate under the Clean Air Act.

It seems that the EPA has indeed failed to fulfill its mandate under the Clean Air Act. And it seems that their response is to change the Act, magically transforming a failure into âsuccess.â