Soon after assuming office in January 2009, President Obama promised that, in contrast to George W. Bush, science and law would be the two primary guiding stars for regulatory decision-making during his administration. From that perspective then, the finalized version of the EPA’s ozone standard should have been a no-brainer. After all, the standard was intended to replace the 2008 one issued in the dying days of the Bush Administration, which EPA Administrator Lisa Jackson has slammed as legally and scientifically indefensible. The Clean Air Act charges the EPA to set the ozone standard at a level that is protective of human health with an adequate margin of safety, and, consistent with this mandate and with the unanimous recommendation of the EPA’s blue ribbon clean air science advisors for how to achieve this mandate, the agency seem poised to set the new standard somewhere between 60 and 70 parts per billion (ppb).
Then politics—in the face of OIRA Administrator Cass Sunstein and White House Chief of Staff Bill Daley—intervened. The Obama Administration turned its back on both science and the law, and ordered Administrator Jackson to stop working on the new ozone standard. Under the circumstances, Obama wasn’t in the greatest position to justify this abrupt about-face.
Not surprisingly, the return letter from Sunstein formally rejecting the ozone rule betrayed more than just a mere soupçon of desperation. Drawing on Executive Order 13563, Sunstein relied in part on two novel considerations—regulatory uncertainty and the current economic situation—to justify the retreat. Then, without a hint of irony, Sunstein went on to claim that the decision was compelled in part by considerations of scientific integrity:
Executive Order 13563 explicitly states that our regulatory system “must be based on the best available science.” As you are aware, work has already begun on a new and forthcoming scientific review, “based on the best available science.” We urge you to reconsider whether to issue a final rule in late 2011, based on evidence that is no longer the most current, when a new scientific assessment is already underway.
To truly appreciate how outrageous this smug nod to “scientific integrity” is, one must first consider the present sorry state of ozone regulation in the United States. When the Obama Administration began working on the new ozone standard, it decided to stay Bush’s 2006 ozone standard, which was set at 75 ppb. Therefore, the current ozone standard harkens all the way back to 1997, when the Clinton Administration set it at 84 ppb. Of course, only a few “lucky” Americans get to live in areas that comply with that woefully inadequate standard, as many states and regions have struggled to develop or implement plans that will bring their air quality in attainment.
Only by employing a Queen-of-Hearts type of logic can one seriously count the Obama Administration’s retreat on ozone as a win for scientific integrity. The fact of the matter is the prevailing ozone standard is based on pre-1997 science that, in some cases, is a decade or older than the science on which the new ozone standard would have been based.
So, what does the new science about the human health impacts of ozone pollution tell us? Invariably, the more we learn about this stuff, the more we know about how harmful it is. For example, soon after the Bush Administration finished its 2008 standard, the National Research Council issued a report concluding that short-term exposures (i.e., less than 24 hours) to even 84 ppb of ozone (i.e., the current ozone standard) likely contribute to premature death. The American Lung Association confirms that new scientific evidence continues to accumulate demonstrating that the current ozone standard is inadequate to protect human health. The EPA is now supposed to complete its next scientific review on the ozone standard by 2013. If anything, by then, the “best available science” may show that even 60-to-70-ppb range currently recommended by CASAC is inadequate to protect public health.
And that’s where things currently stand. The Obama Administration knows that the current ozone standard isn’t sufficient to prevent death, let alone protect human health with an adequate margin for safety. Yet, it rejected a more protective standard, because the best available science in a couple years will likely show that this protective standard isn’t protective enough. This logic defies common sense, and it flies in the face of the inherently protective goals of the Clean Air Act.
Updating the ozone standard was never going to be easy, and industry and its anti-regulatory allies in Congress mounted a fierce campaign against the Obama Administration’s efforts to update the 14-year-old standard. The Obama Administration ultimately bought into the perpetually self-defeating argument that it cannot act now on the science that is available because the science down the road might be a bit better. Science is always going to improve, and in the case of setting ozone standards, it continues to support stronger and stronger limits on ozone pollution to protect human health. Under these circumstances, the Clean Air Act is clear about what the EPA must do: Draw a line in the sand, and take action to set an updated standard. If the agency fell into the trap of always waiting for the science to improve, then it would never take any action, with preventable illness and death being the inevitable result.
And otherwise preventable illness and death will result. According to EPA’s own estimates, a 60 ppb standard would have prevented 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 every year; a 70 ppb standard would have prevented up to 4,300 premature deaths, 2,200 non-fatal heart attacks, 880 cases of chronic bronchitis, 170,000 lost work days, and 600,000 missed school days. The Obama Administration claims that by rejecting the new ozone standard it is waiting for an even better standard just a few years from now. That new science, of course, could end up showing that the price of this delay in human lives may be even bigger than we currently know it to be.
