When Politics Trump Science: How the Ozone Standard's Three-Year Delay Has Already Led to Thousands of Avoidable Deaths

by Rena Steinzor

July 20, 2011

This post was written by CPR President Rena Steinzor and Policy Analyst James Goodwin.

Few incidents better illustrate the Bush Administration’s outright hostility to politically inconvenient science than its 2008 rule updating the ozone National Ambient Air Quality Standard (NAAQS). In the run-up to that rule, Bush’s EPA ignored the unanimous recommendation of the Clean Air Science Advisory Committee (CASAC), an independent and well-respected advisor to the EPA on clean air issues, that it set the standard in the range of 60 to 70 parts per billion (ppb) to replace the existing standard of 84 ppb. Instead, the final rule—issued in the waning days of the Bush Administration—set the standard at 75 ppb, well above CASAC’s recommended range.

The ozone standard was so bad that soon after it was issued in 2008, CASAC took the unusual step of publicly criticizing Bush’s EPA for ignoring its advice.

Fortunately, the Obama Administration, which began before the ozone standard could take effect, delayed its implementation, and in September of 2010, the EPA began a formal reconsideration process to revise the ozone standard. The EPA is now set to issue a final rule setting the ozone standard somewhere in the recommended range of 60 to 70 ppb sometime next month—more than three years late. (In the interim, the original 84-ppb standard has remained in effect.)

The cost of this delay has been intolerably high. The EPA’s proposed revision is expected, by 2020, to annually prevent up to 12,000 premature deaths, 5,300 non-fatal heart attacks, 2,200 cases of chronic bronchitis, 420,000 lost work days, and 2,100,000 missed school days. Because of the delay since 2008, however, the American public will have to forgo three years’ worth of these enormous benefits. This delay may have saved industry some cash, but it will take quite a toll on people’s pocketbooks and health—and, in too many cases, even their lives.

Apparently, though, even this three-year delay isn’t enough for industry. The EPA sent the draft final rule to OIRA for review—the last step before it is published—on July 11, so industry started last week to launch one last round of attacks on the rule, including a visit with EPA Administrator Lisa Jackson and a letter to White House chief of staff Bill Daley. (Surely, a round of lobbying visits to OIRA cannot be far behind.) At minimum, they are demanding that the Obama Administration delay the rule until 2013—an additional two-year delay. They argue that the Clean Air Act directs the EPA to review NAAQSs only once every five years; hence, the appropriate timeline for reviewing Bush’s standard would be 2013. To do so earlier than that  would be inconsistent with President Obama’s Executive Order on improving regulations. (We predicted that industry wouldn’t miss an opportunity to haunt the White House with that order.) To be clear, the Clean Air Act unambiguously allows the EPA to revisit NAAQSs more frequently than every five years—section 109(d)(1) of the statute concludes by saying that the EPA “may review and revise criteria or promulgate new standards earlier or more frequently than [the five-year intervals] required under this paragraph.” The real problem with industry’s argument is that it completely ignores that Bush’s 2008 standard violated the Clean Air Act (i.e., since it was not protective of health), making it necessary to undertake this review on an expedited basis. Industry also argues that postponing the rule to 2013 will improve Obama’s reelection chances in 2012—a rather thinly-veiled threat.

President Obama should resist these attacks, and not follow his predecessor’s pattern of allowing politics to trump science. The science is clear: a stronger ozone NAAQS is needed to protect public health. The law is clear: EPA must set the ozone NAAQS at a level that is protective of public health and without regard to costs. (In Whitman v. American Trucking Association, the Supreme Court unanimously held in an opinion authored by none other than Antonin Scalia—no friend of strong regulation—that the EPA may not consider costs when setting NAAQSs.) Three years delay has been three years too many. The EPA’s pending final rule should not be delayed any further.

Tagged as: ozone NAAQS
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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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