Obama’s Path to Progress: Protecting People and the Environment Against Harmful Ozone Pollution

by James Goodwin

November 12, 2014

A few months back, President Obama visited several kids receiving treatment for asthma at the Children’s National Medical Center in Washington, DC.  Afterwards, he reflected on the critical importance of environmental safeguards, such as those to limit ozone pollution, saying:

[E]very time America has set clear rules and better standards for our air, our water, and our children’s health—the warnings of the cynics have been wrong.  They warned that doing something about the smog choking our cities, and acid rain poisoning our lakes, would kill business.  It didn’t.  Our air got cleaner, acid rain was cut dramatically, and our economy kept growing.

In just a short few weeks, Obama will have his first test of whether he’s prepared to follow through on those words, and frankly, to make good on his legal obligation to do so, when the Environmental Protection Agency (EPA) announces whether or not it will establish a more protective national standard to limit ozone air pollution.  The agency is under a judicial order to complete its review of the current National Ambient Air Quality Standard (NAAQS) for ozone and to propose strengthening it, if necessary, by December 1.  The Clean Air Act requires the EPA to set the ozone NAAQS at a level “requisite to protect the public health” with “an adequate margin of safety.” That’s a standard that requires the agency to only consider public health and forbids it from considering polluters’ clean-up costs — not an accident of drafting, by the way, but rather a clear reflection that Congress intended for the EPA to make sure the nation’s air was safe to breathe.

The EPA’s pending ozone standard is one of 13 essential regulatory actions highlighted in CPR’s recent Issue Alert on safeguards that the Obama Administration can and should implement before the President’s term expires.  As the Issue Alert explains, the completion of such regulatory actions as the ozone standard is necessary to address long-neglected public health concerns.  From a political standpoint, it’s also something affirmative that the President can do on the domestic front that won’t require a vote in an increasingly hostile Congress.  The laws that undergird the proposed regulations have already been passed; the only real barrier to completing these legacy-burnishing rules has to do with the President’s will to get them finished. In short, does the President have the will? 

Scientists have known for a long time that the current NAAQS for ozone of 75 parts per billion of air (ppb), which was set in 2008, is far too weak.  Instead, the EPA’s Clean Air Science Advisory Committee (CASAC) has long recommended that the NAAQS should be set as low as 60 ppb.  The EPA has estimated that restricting ozone pollution to this level would annually prevent up to up to 12,000 premature deaths, 5,300 nonfatal heart attacks, 58,000 cases of aggravated asthma, and 2.5 million missed school and work days.

If Obama follows CASAC’s advice and sets the ozone NAAQS at 60 ppb, it would be the first time that the pollution standard has been properly updated since 1997—this despite the fact that the Clean Air Act charges the EPA with reviewing and updating the ozone NAAQS at least once every five years.  In 2008, when the George W. Bush Administration set the current standard, it ignored the advice of CASAC at the time that the best available science confirmed that a standard set any higher than 70 ppb would not sufficiently protect public health.  In 2011, with the 2012 campaign coming into focus, the EPA was poised to right this wrong and adopt the 70-ppb standard when President Obama himself intervened and directed the agency to postpone its efforts to update the ozone NAAQS.  Since then, the Obama Administration has been enforcing the 75-ppb standard that even its own scientific advisors regard as inadequate.

All the while that meaningful action on the ozone NAAQS has been lacking, the public and the environment have been paying the price.  According to the American Lung Association, nearly half of all Americans—more than 140 million people in all—continue to live in areas with harmful levels of ozone pollution.  The poor and racial minorities are disproportionately harmed since the highest pollution levels are typically found in urban and economically distressed communities.  For example, a 2012 study by the Connecticut Department of Public Health found that asthma-related hospitalization rates were roughly twice as high for the state’s most urban areas as compared to their neighboring suburbs, which the report in part attributes to disparities in relative air quality.

Accordingly, when it releases its proposal next month, the President and the EPA should settle for nothing less than a NAAQS set at 60 ppb.  The EPA should also follow CASAC’s advice in setting a unique “secondary” NAAQS necessary for protecting plants and trees.

Congressional Republicans—newly empowered with a majority in the Senate and an expanded majority in the House—will no doubt mount a large campaign to attack an appropriately strong ozone NAAQS.  The Obama Administration can expect press briefings, misleading reports, and three-ring-circus-type hearings from those members of Congress who are closely allied with the polluting industries that would be impacted by this rule.

Anti-regulatory members are also likely to introduce bills in the next Congress that are similar or identical to companion legislation that was introduced this past September that would block the EPA from finalizing the rule until most of the country has come into compliance with the current 75-ppb standard.  The bill would also require the EPA to ignore public health and science and instead set future ozone NAAQS based on whether industry compliance with a more protective standard would be “feasible.”  Alternatively, rather than attacking the rule through stand-alone bills, these members might attempt to attach “riders” to such must-pass legislation as appropriations bills that would also have the effect of blocking a stronger ozone standard.

Whatever tactics the rule’s opponents employ, the President should be steadfast in defending an ozone standard that is strong enough to protect people and the environment.  The American public strongly supports government action to enforce laws that protect public health and the environment, and the pending ozone standard is as clear an example of such government action as there is.  But ultimately it is up to the President to make this case to voters.  In a few weeks, we’ll see if he’s prepared to follow through on his rhetorical embrace of clean air standards, or if he will instead double-down on the mealy-mouthed approach to defending public safeguards that has enabled the continued Republican and industry assault on regulations throughout much of his Administration.

After issuing the proposal on December 1, the EPA is under judicial order to finalize the rule by no later than October 1, 2015.  President Obama should make sure that the EPA adheres to this schedule so that implementation of the updated ozone NAAQS can begin as quickly as possible.

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Also from James Goodwin

James Goodwin, J.D., M.P.P., is a Senior Policy Analyst with the Center for Progressive Reform. He joined CPR in May of 2008.

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