Ozone Madness
by Lisa Heinzerling, Georgetown Law Faculty blog, September 2, 2011
Today, President Obama announced that he had asked EPA Administrator Lisa Jackson to withdraw the final National Ambient Air Quality Standard (known as a "NAAQS") for ozone pollution, which she and her expert agency had sent to the White House for review. The President's announcement is terribly bad news, and terribly bad policy, on several scores.
1. Law: The reason the President gave for asking EPA to withdraw its standard is an unlawful reason. President Obama explained that while his administration has taken actions (some only proposed) to strengthen protections under the Clean Air Act, he has, "[a]t the same time, ... continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover." "With that in mind," he explained, he had asked Administrator Jackson to withdraw the standards she had submitted to the White House. But the Supreme Court has unequivocally held that the Clean Air Act forbids the consideration of economic costs in setting the NAAQS. I suppose someone could argue that because the President decided only not to let EPA revise the existing air quality standard for ozone, rather than issuing a new standard, his explicit reliance on economic costs as the basis for that decision does not pose any legal problem. But the fact is that the President has rejected a fully developed NAAQS on the basis of costs. It is hard for me to see how that does not present a legal problem.
The President's Executive Order on regulatory review, issued last January and indirectly alluded to in the President's statement on ozone, does not -- and cannot -- override the requirements of the Clean Air Act. The Executive Order itself explicitly states that it "shall be implemented consistent with applicable law." And in any event, the President does not have the authority to undo clear directives from Congress.
2. Science: The Clean Air Act, as conclusively interpreted by the Supreme Court, requires EPA to set the NAAQS based on the scientific evidence of harms to public health posed by the air pollutant in question. One of the decisions most decried by critics of the Bush-era EPA was its NAAQS for ozone, set in 2006. In issuing its standard, the Bush-era EPA departed from the advice of its scientific advisors for the first time and set a less stringent standard than the scientific advisors had recommended. It is hard to see how President Obama's decision today reflects an attitude toward science that is any more respectful than the attitude the Bush administration displayed in its 2006 ozone standard. What is more, it seems that EPA will now be required to defend that Bush-era standard in court, which means that the agency may well make arguments about the shape and scope of EPA discretion under the NAAQS program that the agency will come to regret when and if it attempts, some time in the future, to set an adequately protective standard in the face of inevitable industry opposition.
3. Economics: Weirdly, even though President Obama stated that economic concerns were his reason for asking EPA to withdraw the ozone standard, shortly before this announcement was made, a White House blog post extolled the economic virtues of the Clean Air Act. This is a statute that has returned over 30 times the amount in benefits that it has imposed in costs. It is one of the most successful pieces of public health legislation ever. And the White House seems to know it. Stranger still, then, that President Obama used economics as the cited reason for asking EPA to take back the standard.
4. Transparency: President Obama has made open government one of the central themes of his administration. When rules like the ozone NAAQS go to the White House for review, they are accompanied by a detailed explanation of the agency's reasons for deciding the way it did; this is the document that, if the White House clears the rule, will appear in the Federal Register as the agency's explanation for its rule. The ozone NAAQS was sent to the White House for review in July. Thus there exists a full package from EPA containing the final rule and the explanation for it. The least the White House can do at this point is to release that package. Let the public know what EPA concluded in its final package about the harmful effects of ozone pollution. Let states and local governments take that information and decide whether to strengthen their own pollution standards in light of what EPA has found. Let citizens decide what actions to take in light of that evidence. As President Obama explained when he issued a memorandum directing agencies to adopt a presumption of disclosure under the Freedom of Information Act: "Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve." It is hard to see a public-regarding reason for not disclosing the EPA's explanation of the science on ozone and the public's health.
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