President Obama's decision to force EPA to scrap its rule tightening the agency's 2008 ozone air standard shifts focus back to the Bush-era limit, elevating the importance of environmentalists' lawsuit seeking to force implementation of the 2008 standard and separate consolidated litigation challenging the legality of the standard.
Obama's Sept. 2 demand that the agency withdraw its final rule to tighten the ozone standard prompted widespread criticism from environmental organizations and public health officials. Sierra Club said it “condemns” the decision as being contrary to scientific data warranting a stricter standard than the 75 parts per billion (ppb) limit set in 2008. Friends of the Earth said the decision is the latest evidence that Obama's environmental record is “pathetic.”
But industry and Republicans welcomed the move to scrap EPA's rule, though GOP lawmakers say it is just one of several agency rulemakings they want EPA to drop due to their concerns about the rules' adverse economic impacts and resulting job losses, citing the fact that the 9.1 percent unemployment level was unchanged in August.
The decision creates a difficult situation for Jackson, who has said the Bush-era limit is not defensible. It also revives debate over the EPA administrator's role in setting national ambient air quality standards (NAAQS). The Clean Air Act says that the administrator has exclusive authority to set ambient air standard, but Obama's decision overrides issuance of a stricter standard -- a move that could revive debate over White House involvement in the NAAQS process.
The Bush administration drew criticism when it was seen as intervening to prevent EPA from issuing a distinct “secondary” NAAQS designed to better protect crops and forests as part of its 2008 ozone standard.
Former Bush EPA air chief Jeff Holmstead, now with the law firm Bracewell & Giuliani, said in a Sept. 2 statement that Obama's decision to scrap the final rule revising the standard “isn’t a big surprise -- except for the fact that the President himself issued a statement essentially taking credit for it. I expected that EPA would quietly withdraw the ozone rule without any fanfare. The political folks at the White House must believe that the President needs to show that he is concerned about too much regulation from EPA.”
The Obama EPA's final rule to tighten the 2008 NAAQS to between 60 and 70 ppb recommended by its Clean Air Scientific Advisory Committee had been under White House Office of Management & Budget (OMB) review since July 11. Critics of the proposal lobbied the White House to scrap the regulation, noting that the revision is discretionary as the Clean Air Act only mandates NAAQS reviews every five years.
Obama in his statement echoed those concerns, noting that the next mandatory review of the ozone standard is due in 2013 and issuing a new standard now would have created regulatory uncertainty. “Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered,” he said.
Obama nonetheless claimed to have an “unwavering” commitment to protecting public health and the environment, citing major environmental rules EPA has passed under his presidency on fuel efficiency of cars and cutting air toxics from power plants as evidence. A White House blog post posted Sept. 2 also touted EPA's air rules and a recent agency report saying the estimated benefits of the Clean Air Act could be nearly $2 trillion by 2020.
Following the withdrawal of the final ozone rule from OMB, attention turns to litigation over the 2008 NAAQS, which had been on hold in the U.S. Court of Appeals for the District of Columbia Circuit pending the final rule.
Industry is challenging the 2008 NAAQS of 75 ppb as too stringent, while states and environmentalists supportive of a stricter standard have also filed suit challenging the standard as too weak. Jackson as recently as this summer defended plans to tighten the 2008 standard that she said is neither legally not scientifically defensible.
Suits Over 2008 NAAQS
EPA has stalled implementing the 75 ppb standard pending both litigation over the Bush-era rule and its now-defunct final rule. In the meantime the agency's less stringent 1997 NAAQS of 80 ppb continues to apply, but public health advocates and environmentalists say that ambient standard fails to protect public health. According to EPA “data handling conventions,” the 80 ppb standard is effectively expressed as 84 ppb.
A win for industry in the lawsuit would undo the 75 ppb standard and ensure that the 1997 limit of 80 ppb remains in place at least until the 2013 mandatory review of the standard. A win for environmentalists in the suits could create a binding legal mandate for EPA to tighten the standard beyond the Bush-era limit.
WildEarth Guardians also filed a lawsuit recently in the U.S. District Court for the District of Arizona to force EPA to implement its contested 2008 ozone standard even though they continue to believe the standard is too weak. At the time of the Aug. 24 filing of the suit, activists said the legal strategy was a “backstop” measure to secure ozone reductions while uncertainty lingered over EPA's long-delayed rule expected to tighten the standard.
The American Lung Association (ALA) in its Sept. 2 reaction to Obama's decision is also calling for implementation of the 2008 standard even though the group says only a limit in the 60-70 ppb range can protect public health. Charles Connor, president and CEO of ALA, said the group “demands at minimum, the [EPA] and states must move forward to implement the 75 ppb standard as it will provide more protection than the 14-year-old standard.”
Now that a stricter NAAQS is dead for now, a source with WildEarth Guardians says, “This underscores the importance of our lawsuit. One way or another we are going to hold this president accountable.” The source adds that Obama's decision “is really putting politics ahead of public health. It is pretty unfortunate.”
The lawsuit aims to force EPA to issue final designations for which areas of the country are in or out of attainment with the 2008 NAAQS. Designations would trigger an air law requirement for states to submit state implementation plans to the agency outlining the pollution cuts they will impose to meet the standard.
The WildEarth Guardians source is “pretty surprised” by the president's decision, as its lawsuit is a backstop strategy. “It is worrisome when a president overrules an agency like that.” The source adds that the 2008 standards “in all likelihood are going to be held illegal” when litigation in the case against them resumes in State of Mississippi, et al. v. EPA, which will now be briefed in the DC Circuit.
EPA's Jackson finds herself in a seemingly untenable situation as she has previously described the Bush EPA NAAQS as scientifically and legally indefensible. The decision is likely to also reignite debate over White House intervention in NAAQS, as it echoes to some extent last-minute intervention in the 2008 limit by President Bush to overturn former EPA Administrator Stephen Johnson's calls for a secondary ozone standard to protect crops.
An EPA spokeswoman did not return calls for comment on Jackson's future with the agency following Obama's decision, but the agency issued a statement, saying simply, “We will revisit the ozone standard, in compliance with the Clean Air Act.” The statement notes EPA's other recent achievements in other major air rules, such as air toxics rules for power plants, but makes no mention of the decisionmaking process behind Obama's pulling of the rule.
Jackson in March wrote an article for the Huffington Post touting the agency's proposed air toxics rule for power plants as “a milestone in the Clean Air Act's already unprecedented record of defending the health of American families,” though the article did not mention standards for ozone, also known as smog.
In an Aug. 31 Huffington Post article Jackson defended EPA's Clean Air Act rules and sought to rebut attempts by some lawmakers “to roll back critical environmental protections when they return to session. Misleading claims are translating into actions that could dismantle clean air standards that protect our families from mercury, arsenic, smog and carbon dioxide.” Jackson reiterated her long-running argument that EPA rules can boost the economy.
Industry, Activist Reaction
However, industry and Republican critics of a stricter ozone standard warned that it would impose massive costs on industry, harming the economy and causing job losses, and the critics welcomed Obama's decision.
Jack Gerard, president and CEO of the American Petroleum Institute (API) -- which lobbied against a stricter limit -- in a Sept. 2 statement said, “The President’s decision is good news for the economy and Americans looking for work. EPA’s proposal would have prevented the very job creation that President Obama has identified as his top priority.”
API is one of several major industry organizations to warn that a standard in the proposed range would throw many new areas of the country out of attainment with the standards, requiring the imposition of costly pollution controls and curbing industry expansion and investment, with a large negative impact on employment.
Sen. James Inhofe (R-OK), ranking member on the Senate Environment & Public Works Committee, said, “President Obama has finally pulled the plug on what would have been the most expensive EPA regulation in history.” He said Obama “had little choice but to halt this rule, which would have destroyed nearly 7 million jobs and stifled economic growth at a time when our nation is working to recover from a jobless recession.”
Inhofe added that EPA, however, is still introducing other rules that will harm the economy, and that if Obama is “truly serious” about reducing regulatory burdens, he should tell the agency to hold off with those as well.
These are the so-called “train wreck rules,” which include a cap-and-trade program to reduce power plant emissions, cooling water rules for power plants, and the air toxics rules for power plants. Several other House and Senate GOP lawmakers -- including House Energy & Commerce Committee Chairman Fred Upton (R-MI) -- echoed Inhofe's argument that the ozone rule is just the first of several agency rulemakings that Obama should scrap.
But Sierra Club said it “condemns the Obama administration's decision to delay critical, long-overdue protections from smog, an acidic air pollutant that when inhaled is like getting a sunburn on your lungs. By putting the interest of coal and oil polluters first, the White House seems to be saying that 'clean air will have to wait.'”
David Hirsch, managing director of Friends of the Earth, similarly criticized the scrapping of a stricter ozone limit. “President Obama decided today to trash fundamental protections for Americans’ health. His decision will mean more children suffering from asthma and more permanent lung damage for adults. It is unacceptable,” he said.
“The president’s claim that he has shown an ‘unwavering’ commitment to public health and the environment is absurd. In truth, when considering the extent of the transformation that’s needed, his administration’s record on environmental issues has bordered on the pathetic,” Hirsch continued.
ALA's Connor said that the decision is “jeopardizing the health of millions of Americans” and noted that the group would revive its participation in the DC Circuit case challenging the 2008 limit as too weak. -- Stuart Parker (This e-mail address is being protected from spambots. You need JavaScript enabled to view it )