Friday, March 14, 2008

EPA Sets Primary Ozone Standard at 75 ppb Ignoring Scientific Advice; Sets Unlawful Secondary Standard Based on Bush's Personal Order

EPA's Clean Air Scientific Advisory Committee recommended a primary health standard no higher than 70 ppb and EPA's Children's Health Protection Advisory Committee recommended the standard be set at 60 ppb because children are more vulnerable to air pollution.  EPA estimates that excess deaths of 1700 - 5700 will occur from the new standard as opposed to a 65 ppb standard.

In addition, EPA set the secondary standard identical to the primary standard, not based on science, but based on an order from the President.

Juliet Eilperin of the Washington Post reported yesterday:

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."... 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."

Apparently industry has actively lobbied to keep the standard at 84 ppb to avoid the estimated cost to industry of $7.6 - $ 8.8 billion a year.  EPA estimates that the new standard will yield $2 billion to $19 billion in health benefits.  For many years, I've maintained that having the government prepare these estimates under EO 12866  (or allowing industry to provide agency decision-makers with its estimates) skews the process towards an illegal cost-benefit analysis.

It is no surprise that faced with numbers, President Bush interfered in what should have been a legal/scientific decision.  Legal because the secondary standard must be set to protect public welfare and there is no basis for assuming that the secondary NAAQS should be the same as the primary NAAQS.  Scientific because only the science should matter: cost and benefit numbers are not what EPA is supposed to consider under the CAA.  Bush had no business making any decision about this.  Bush should not have those cost-benefit numbers in front of him because it leads to bad choices.  Don't put cookies in front of a starving child unless you want them to eat.  Don't put a stack of million dollar bills in front of a thief unless you want to part with them. 

It was the Attorney General's responsibility to tell EPA to set the primary and secondary standards according to science, not cost-benefit estimates.  Period.  End of discussion.  Apparently, some officials at the Justice Department attempted to tell the President just that.

Juliet Eilperin of the Washington Post reported today:

EPA officials initially tried to set a lower seasonal limit on ozone to protect wildlife, parks and farmland, as required under the law. While their proposal was less restrictive than what the EPA's scientific advisers had proposed, Bush overruled EPA officials and on Tuesday ordered the agency to increase the limit, according to the documents. "It is unprecedented and an unlawful act of political interference for the president personally to override a decision that the Clean Air Act leaves exclusively to EPA's expert scientific judgment," said John Walke, clean-air director for the Natural Resources Defense Council....The president's order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone....Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court... As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

I don't envy my former colleagues at the Justice Department who get to defend this embarrassingly illegal action.

http://lawprofessors.typepad.com/environmental_law/2008/03/epa-sets-ozone.html

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