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The Ugly Side of Interagency Review: Non-Expert Federal Agency Commenters Tried to Tell Expert EPA That Ozone Doesn’t Actually Kill People

Climate Justice

Internal EPA emails obtained by CPR though a FOIA request reveals that representatives from one or more of the EPA’s peer agencies second-guessed a critical scientific finding undergirding the EPA’s then-pending draft final rule to tighten the ozone standard, claiming that ozone is not associated with mortality impacts. The EPA’s final proposal rightly disregarded the unsound comments and included information on how reducing ozone pollution saves lives.  The rule, estimated to save thousands of lives, was later blocked by the White House. The email provides a rare glimpse at how peer agencies abuse the interagency commenting process by attacking other agencies’ rules—often on matters on which they have comparatively little expertise.

In the August 3, 2011, email, sent while the draft final rule was still undergoing review at the White House Office of Information and Regulatory Affairs (OIRA), Karen Martin, an EPA scientist who was working on the rule, provided her colleagues her initial impressions on the interagency comments regarding the rule, which OIRA had just recently forwarded to the EPA.  Martin noted that some commenters, un-named staff from one of the EPA’s peer agencies, questioned the EPA’s assumption that higher ozone levels contribute to premature deaths.  Martin directly quoted a “set of commenters” who recommended that “EPA remove the assumption that ozone is associated with mortality impacts.” The interagency comments themselves are not available publicly and were not included in the batch of documents sent by EPA in response to CPR’s FOIA request.

While technical-sounding, the assumption about the relationship between elevated ozone levels and premature deaths formed a critical part of the agency’s regulatory impact analysis for the rule.  (The draft final analysis, which was the subject of the interagency complaints, is available here.)  In the regulatory impact analysis, the agency explains that it included this assumption at the recommendation of the National Academy of Science (see page 3).  The monetized benefits of preventing ozone-related mortality was to be the second largest source of the rule’s benefits (see page 34); thus, the failure to include these benefits would serve only to distort the rule’s cost-benefit analysis more.  (As practiced, several inherent methodological flaws lead cost-benefit analysis to over-count costs while under-counting benefits, rendering it systematically biased against protective regulations.)

Note also that the Clean Air Act explicitly prohibits the EPA from using cost-benefit analysis to set the ozone standard; in 2001 a unanimous Supreme Court told the EPA it was not to consider cost in setting the standard.  Yet Executive Order 12866 tells agencies to conduct cost-benefit analysis, so the EPA still dutifully participates in this time-consuming and resource-intensive charade, never mind the law saying cost can’t be considered.

This episode is a far cry from how interagency review should operate, and it’s not a particularly shining exemplar of open-government.  In the words of former OIRA Administrator Cass Sunstein, the “positions of one agency are usefully informed by the views of other agencies with relevant experience and expertise.” That’s true in some cases, but unfortunately, in other cases, interagency review is used as a tool for one agency to try to bully or harass another. And because those comments are shielded from public view — note that we couldn’t even shake them loose with a FOIA request — much of it happens in the dark.

No other agency has greater expertise on issues of air pollution science than the EPA.  That’s precisely why the Clean Air Act charges the agency with designing and implementing policies to achieve clean and healthy air.  The EPA is able to rely on its professional staff, which includes medical and scientific experts, to help it craft rules so that they are based on the best available science.  It’s one thing for other agencies to offer input that reflects their particular expertise, but it’s another thing altogether when an agency presumes to second-guess the EPA’s expertise on this or any other technical issue related to air pollution, particularly when the scientific evidence is as overwhelming as it is in this case. In this case, it’s not clear what may have prompted any of the EPA’s peer agencies to insinuate themselves into the question of whether or not ozone pollution results in premature mortality. 

Unfortunately, it’s not all that uncommon for agencies to use the interagency commenting process to weigh in on technical matters well beyond their expertise in order to advance the interests of their constituents (i.e., the commercial interests that the agency is supposed to regulate or work with) or sometimes even their own unique institutional interests.  For example, a few years back, the EPA inadvertently revealed that the Tennessee Valley Authority (TVA) was given an opportunity to provide interagency comments on the EPA’s draft proposed rule to regulate coal ash disposal. The rulemaking itself was prompted by a massive coal ash spill from a TVA facility. Predictably, the TVA’s comments were aimed at weakening the rule.  The Department of Agriculture also heavily criticized the EPA’s proposed rule in its interagency comments, citing the negative impacts a “hazardous waste” designation for coal ash would have on its “beneficial use” the agency encourages its constituents—the agricultural industry—to use coal ash on farmland to stabilize soil.  There’s nothing wrong in and of itself with the Department of Agriculture representing farm’s economic interests—that’s part of their legislative mandate.  But, if is going to stand in the shoes of a farm lobbyist, then the proper place for this kind of advocacy is in the publicly available notice-and-comment rulemaking process—not behind closed doors in OIRA’s interagency review process.

Executive Order 12866, which governs centralized regulatory review at OIRA, provides agencies with the opportunity to comment on each other’s significant rules.  What’s more troubling is that the interagency comment process—as with nearly every other aspect of centralized review—takes places with little transparency, and thus operates virtually free of any public accountability.  Executive Order 12866 says:

After the regulatory action has been published in the Federal Register or otherwise issued to the public, or after the agency has announced its decision not to publish or issue the regulatory action, OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section.

In this case, as with most, OIRA has chosen to flout that requirement. We get fleeting glimpses of the process only when the comments are inadvertently released (see, e.g., the coal ash rule) or, as in this case, by incidental references in emails obtained through FOIA requests.

The need for transparency in the interagency commenting process isn’t merely academic or simply an arid “good government” ritual.  Free of the shining light of transparency, peer agencies can and will abuse the interagency commenting process by advancing parochial interests at the expense of the public interest.   The people at the EPA and other agencies trying to protect the public already have enough nonsense to deal with.

Climate Justice

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