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?
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James Goodwin | September 2, 2016
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 […]
James Goodwin | August 31, 2016
Next Wednesday, Public Citizen is holding an important event that aims to promote greater transparency in the presidential transition process. The transition process is among the most critical events in our constitutional system of democracy. As the Center for Presidential Transition lays out in detail in its Presidential Transition Guide, this process is where the […]
Brian Gumm | August 29, 2016
It’s common knowledge that our energy choices impact the planet’s climate, but less widely known is how climate change and its intensified storms, heat waves, droughts, and water shortages affect our energy grid. Already vulnerable, the grid can suffer catastrophic damage when a storm like Hurricane Katrina or Hurricane Sandy strikes. In an Aug. 26 […]
Matthew Freeman | August 25, 2016
Over the course of the last few decades, one of the great communications challenges facing progressives has been, and continues to be, how we talk about climate change. The difficulty in persuading politicians and the public about the need for action isn’t just that the effort has run head-long into a massive and well-funded industry […]
James Goodwin | August 23, 2016
Yesterday, several CPR Member Scholars and staff formally submitted comments on the Consumer Financial Protection Bureau’s (CFPB) proposed rule to limit the use of forced arbitration agreements in consumer contracts for financial products like credit cards and bank accounts. CPR Member Scholars and staff have been tracking this rulemaking for over a year and in […]
Brian Gumm | August 18, 2016
In a new op-ed published in the Raleigh News & Observer, Center for Progressive Reform Member Scholar and Board Member Sidney Shapiro examines two recent examples of politics getting in the way of protecting people and the environment in North Carolina. As he explains, the politicization of science by state officials has serious ramifications for […]
James Goodwin | August 15, 2016
While the Rolling Stones’ “You Can’t Always Get You Want” may be an ill-advised campaign song, perhaps it can still serve as the official theme song for Sen. David Vitter’s (R-LA) Government Accountability Office (GAO) report requests. The anti-regulatory senator had requested that the GAO audit the Consumer Financial Protection Bureau (CFPB) – a favorite […]
Katie Tracy | August 11, 2016
Last month was the hottest July on record for several cities across the southern United States, thanks to a heat wave that brought extreme temperatures to most of the country. But even when temperatures aren't record-breaking, extreme heat can be dangerous and potentially fatal if proper precautions aren't taken. Between 2003 and 2012, more than […]
Katie Tracy | August 10, 2016
UPDATED (8/10/2016): On August 9 and 10, Center for Progressive Reform Policy Analyst Katie Tracy delivered remarks at two Environmental Protection Agency (EPA) stakeholder meetings on risk evaluation, prioritization, and the revised Toxic Substances Control Act (TSCA). August 9 – Risk Evaluation Rule Thank you for the opportunity to present today. My name is Katie Tracy. I am […]