HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, September 23, 2011

Obama Retreats on Ozone Standards, but Improvements are Going Forward

Earlier this month, the Obama administration withdrew draft ozone ambient air quality standards that the U.S. Environmental Protection Agency (EPA) was about to issue. However, it is important to understand that despite the retreat, the ”fallback” ozone standards are still an improvement over the 1997 standards we have in place today. But it is too bad politics and jobs rhetoric intervened.

In a statement, the President indicated he was abandoning the proposed scientifically recommended ozone standards of 60-70 parts per billion, due to concerns about easing regulatory burdens during this time of economic recovery. According to the Bloomberg news article, the EPA rule was one of the seven most costly rules to business, since it would create many new non-attainment areas where businesses would need to spend considerable money to achieve compliance. According to the L.A. Times,  Obama’s decision was a direct result of criticism by the business community and the Republican Party that such rules would be “job killers.”

However, the proposed standards had also been strongly supported by others, with the EPA Administrator herself admitting that the standards promulgated under Bush, were “legally indefensible, as reported by the N.Y. Times

The decision to back down on the stricter standards upset many health and environment factions.  A Huffington Post article quoted Janice Nolen, assistant vice president of the American Lung Association, as being "outraged," given that "the current standard used was based on the science as of 14 years ago -- before we knew that ozone killed people."  The National Latino Coalition on Climate Change issued a report criticizing this decision as “leaving hundreds of millions of people in the United States facing unacceptable level of risk” and that ozone risks disproportionately affect Latinos, since they live in areas with the most exposure. The American Academy of Pediatrics, American Thoracic Society and the American College of Preventive Medicine are among many organizations that supported the now-abandoned standards, according to the American Medical Association news. 

This seems to be another example of where Obama has chosen to back down on health measures and capitulated to criticisms that his measures would hurt jobs. In commenting on the President’s lack of spine, I think Al Gore said it the best in his blog:

“Instead of relying on science, President Obama appears to have bowed to pressure from polluters who did not want to bear the cost of implementing new restrictions on their harmful pollution—even though economists have shown that the US economy would benefit from the job creating investments associated with implementing the new technology. The result of the White House’s action will be increased medical bills for seniors with lung disease, more children developing asthma, and the continued degradation of our air quality.”

The lack of spine is regrettable but perhaps understandable. The President's proposed American Jobs Act is a centerpiece of his activites this month, highlighted in his speech at joint session of Congress two weeks ago. He may view this action as heading off criticisms that he claims to be creating jobs while killing them off by regulations. However, to bolster his leadership, he could have deflected criticisms by defending the proposed standards, asserting that a need for new ozone control technology would create jobs (as Al Gore suggests above). Now the President is open to criticims that he is weak, and appears to flip flop on science based issues.

However, as mentioned above, the news is not completely bad. The 2008 Bush-era standard (75 parts per billion instead of the proposed 60-70 ppb standard) is still an improvement. Because these 2008 national standards had been suspended while the new proposal was being promulgated, since 2008 states have been allowed to enforce an earlier, 1987 standard of 84 ppb. The history is explained well in a recent Wall Street Journal article.


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