Five Years Ago Today: When Obama Put Politics Ahead of the Public Interest

September 2, 2011, was a lot like today, the Friday before a long holiday weekend.  While many were already turning their attention to backyard barbecues and afternoon naps in hammocks, the then-Administrator of the White House Office of Information and Regulatory Affairs (OIRA) Cass Sunstein, the controversial official charged with supervising federal regulatory activities, dropped a bombshell. In a notice known as a “return letter,” Sunstein publicly announced that President Obama was rejecting what would have been one of the most important public safeguards during his time in office: the Environmental Protection Agency’s (EPA) pending rule to strengthen the national air quality standard for harmful ozone pollution. It was, and remains, one of the darkest days of Obama’s time in office, at least where public health and environmental protection are concerned.

Mountains of scientific evidence confirm that ozone pollution is nasty stuff, and high levels of exposure can be harmful to human and environmental health. It can trigger asthma attacks and aggravate lung diseases such as bronchitis, leading to missed work and school days, emergency room visits, and even premature death. These effects are especially alarming considering that the American Lung Association found in its 2016 State of the Air report that nearly 163 million Americans – or more than half the people in the United States (51.1 percent) – live in areas with unhealthy levels of ozone. The devastating impacts of ozone pollution extend no less significantly to the natural environment, where it causes visible damage and impairs growth in plants and trees, leaving them vulnerable to death and disease.

We’ve since learned the EPA was on the cusp of finalizing a rule that would have set the standard, referred to as a National Ambient Air Quality Standard (NAAQS), at 70 parts per billion (ppb), down from the weak level of 75 ppb that had been rushed through in the waning days of the George W. Bush administration (in direct contravention of the unanimous advice that the Bush EPA had received from its own public health experts, no less). Because of the Obama White House’s interference in 2011, the EPA had to start the rulemaking over. It only finished a new rule setting the ozone NAAQS at 70 ppb in October 2015 – a delay of more than four years.

Despite all the progress that President Obama has made on environmental protection and public health, this decision will continue to tarnish his legacy. As a preliminary matter, it did tremendous harm to public health. At the time, the EPA estimated that its final rule would annually prevent up to 4,300 premature deaths, 2,200 nonfatal heart attacks, 23,000 cases of aggravated asthma, and 770,000 missed school and work days. Now, to get the full measure of the costs of delay caused by the administration’s interference, multiply those numbers by four for the number of years it took to finalize a reworked standard.

What would induce the Obama administration to turn its back on a policy that was so clearly in the public interest? Unfortunately, the answer seems to have been naked politics. The New York Times reported a few months afterwards that the decision had been primarily motivated by concerns that the rule could endanger Obama’s reelection chances in 2012.

Of course, this was not the public explanation that the administration offered for blocking the rule. Instead, the September 2 return letter disingenuously chalks up the decision in large part to a desire to “minimize regulatory costs and burdens, particularly in this economically challenging time.” Even if this were a good policy justification – it isn’t – it would still be contrary to the relevant law. For one thing, the Clean Air Act charges the EPA Administrator with setting the ozone NAAQS, not White House bean-counters like Cass Sunstein. For President Obama to assert final decision-making authority through his OIRA Administrator over this issue is in direct contravention of the Clean Air Act’s clear language.

For another, the Clean Air Act clearly forbids consideration of regulatory costs and prevailing economic circumstances when setting the ozone NAAQS. Indeed, the U.S. Supreme Court, in a unanimous decision penned by the late Justice Antonin Scalia no less, concluded that NAAQS can only be based on considerations of public health and medical science. Obama and Sunstein blatantly disregarded this mandate by making industry profits and irrelevant economic conditions the determinative decision-making factors.

This inauspicious anniversary will likely go unnoticed by many, but it is still worth reflecting on. It clearly illustrates how tilted our regulatory system has become in favor of corporate interests and away from the public interest. The story of Obama’s rejection of the ozone NAAQS is a story of politics being prioritized ahead of policy, of profits being prioritized ahead of people and our environment, and of agency expertise losing out to improper presidential meddling.

It confirms what my co-authors said in a recent CPR report on the need to rebuild the regulatory system so that it once again puts the public interest first. There, we urged the next president to adopt the kind of crucial reforms that can help prevent a redux of the Obama ozone debacle.

It is also worth considering Obama’s 2011 rejection of the ozone NAAQS in the context of the current presidential election. The eventual winner, whoever he or she may be, will undoubtedly face similar circumstances. It is therefore fair to ask both candidates how he or she might respond if faced with a similar choice. Will he or she champion the public interest? Or will the next president prioritize the narrow interests of politically powerful corporations?