Center for Progressive Reform

The Essential 13: Ozone Standard

National Ozone Pollution Standard: What's at Stake?

Clean Air Act regulations to limit dangerous ground-level ozone pollution rank among this country’s most successful environmental policies. These rules help prevent around 4,300 premature deaths, 86,000 emergency room visits, and 3.2 million lost school days every year.[i] The Environmental Protection Agency (EPA) estimates that by 2020 these rules will deliver even greater benefits, helping prevent as many as 7,000 premature deaths, 120,000 emergency room visits, and 5.4 million lost school days every year. Ozone pollution-control rules have also strengthened the U.S. economy by promoting the health of the agriculture and forestry sectors. The EPA estimates that in 2010 the rules prevented $5.5 billion worth of crops and forest products being lost to ozone-related damage; by 2020, the EPA predicts that they will annually prevent losses of crops and forest products worth $10.7 billion.

But more can and should be done. According to the American Lung Association, nearly half of all Americans—more than 140 million people in all—continue to live in areas with harmful levels of ozone pollution.[ii] A 2011 analysis by the Natural Resources Defense Council found that U.S. communities had issued more than 2,000 Code Orange and Code Red ozone alerts in just the first seven months of that year alone.[iii] The poor and racial minorities are disproportionately harmed since the highest pollution levels are typically found in urban and economically distressed communities. For example, a 2012 study by the Connecticut Department of Public Health found that asthma-related hospitalization rates were roughly twice as high for the state’s most urban areas as compared to their neighboring suburbs, which the report in part attributes to disparities in relative air quality.[iv] Rising temperatures brought about by global climate disruption threaten to make matters even worse. In a recent study, the National Center for Atmospheric Research projects that climate disruption-related impacts could cause the number of unhealthy ozone pollution level days to increase 70 percent by 2050.[v]

To further protect people and the environment, the EPA should strengthen the ozone National Ambient Air Quality Standard (NAAQS). A NAAQS is a regulatory program under the Clean Air Act that sets maximum allowable levels for common air pollutants that are necessary for safeguarding even the most vulnerable people—such as the elderly and those with poor health—as well as the environment. The law requires the EPA to review each pollutant’s NAAQS, including the one for ozone, at least once every five years and lower it if new science shows that the existing limits are not adequately protecting people and the environment. Numerous scientific studies show that even very low levels of ozone—measured in parts per billions (ppb) of the air we breathe—can trigger asthma attacks and aggravate lung diseases such as bronchitis, leading to missed work and school days, emergency room visits, and even death. Scientists have known for a long time that the current NAAQS for ozone of 75 ppb, which was set in 2008, is far too weak. Instead, the EPA’s elite Clean Air Science Advisory Committee (CASAC) recommends that the NAAQS should be set as low as 60 ppb. The EPA has estimated that restricting ozone pollution to this level would annually prevent up to up to 12,000 premature deaths, 5,300 nonfatal heart attacks, 58,000 cases of aggravated asthma, and 2.5 million missed school and work days.[vi]

What’s the Holdup?

The oil and gas industry, manufacturers, and the business community in general have launched a full-scale assault against the EPA’s efforts to update the ozone NAAQS, prompting the agency to develop the rule at an unduly slow pace. Corporate interests have sought to make the rule controversial by spreading bogus claims about its economic impacts. For example, the National Association of Manufacturers (NAM) paid for a highly flawed study that purports to find that the rule will harm the economy and costs jobs, though the study’s grossly inflated estimates bear little relationship to reality.[vii] Industry allies in Congress, such as Sen. David Vitter (R-La.), have similarly sought to exaggerate the rule’s impacts.[viii] Over the years, such dire predictions have been as predictable as they are wrong. Every time that the EPA has sought to strengthen the ozone NAAQS in the past, opponents of strong clean air rules have made such outlandish claims, but the predicted economic disruption and massive job losses have never come to pass.[ix] In addition to attacking the rule’s costs, industry groups have also attempted to sow doubt about the rule’s benefits, sponsoring studies that purport to find that low levels of ozone pollution do not cause premature deaths or have any other adverse health impacts.[x]

Corporate interests successfully deployed these attacks the last time that the EPA sought to strengthen the ozone NAAQS in 2011. Industry lobbyists even scored a meeting with high-ranking White House officials and, according to media accounts, persuaded them that the rules would have severe negative economic impacts in states that would be vital to President Obama’s fast-approaching reelection campaign.[xi] Less than two months after the meeting, the White House ordered the EPA to postpone its efforts to update the ozone NAAQS.[xii]

The ozone NAAQS update is also facing stiff resistance from anti-regulatory Members of Congress. In September, members of the Senate and the House of Representatives separately introduced companion legislation to block the EPA from finalizing the rule until most of the country has come into compliance with the current 75-ppb standard. The bill would also require the EPA to ignore public health and science and instead set future ozone NAAQS based on whether industry compliance with a more protective standard would be “feasible.”[xiii]

What Should the Rule Do?

The EPA should settle for nothing less than a NAAQS set at 60 ppb. This standard is necessary to meet the Clean Air Act’s requirement that the ozone NAAQS be set at a level “requisite to protect the public health” with “an adequate margin of safety.” The U.S. Supreme Court held in 2001 that the law requires the standard be based on public health considerations only, and that forbids the EPA is prohibited from considering costs. Consistent with this requirement, CASAC—a group of independent experts formed to advise the EPA on scientific matters related to its clean air regulations—unanimously recommended in June 2014 that the agency significantly revise the NAAQS downward to within the range of 60 to 70 ppb. Based on its review of the most up-to-date science on ozone’s harmful health effects, CASAC further advised that the EPA set the standard toward the lower end of its recommended range, noting that “the recommended lower bound of 60 ppb would certainly offer more public health protection than levels of 70 ppb or 65 ppb and would provide an adequate margin of safety.” In August, EPA staff echoed CASAC’s recommendations in its final Policy Assessment report, providing further support for a NAAQS set at 60 ppb. The EPA should also follow CASAC’s advice in setting a unique “secondary” NAAQS necessary for protecting plants and trees.

What’s Next?

Update: In October 2015, the EPA issued its final rule setting the ozone NAAQS at 70 ppb—the least protective level it considered in its proposal.  In doing so, the agency appears to have bowed to political and industry pressure, rather than heeding the advice of its science advisors to set the standard at no greater than 60 ppb.  If it survives judicial review, this final rule will likely go down as one of the Obama Administration’s greatest missed opportunities when it comes to promoting public health and environmental protection.

The final rule now faces competing challenges in the Court of Appeals for the District of Columbia.  Several conservative states and industry groups have filed suits arguing that the EPA erred in not keeping the standard at the current level of 75 ppb.  Several environmental groups have challenged the rule as violating the Clean Air Act, because it is not sufficiently protective of public health and the environment.

Separately, the final rule is likely to remain a target of legislation by the Republican-controlled Congress in the coming year.  Members have introduced various bills in both chambers that would either block or delay the rule outright, or that would result in weaker ozone NAAQS in the future by forcing the agency to prioritize industry profits ahead of public health and environmental concerns when setting new standards.  Congress may attempt to move one or of these bills this year, but it is unlikely that President Obama would sign off on them or that Congress would be able to override a veto.  Antiregulatory members also tried but failed to include riders in last year’s appropriations bill for the EPA that would prohibit the agency from enforcing the new ozone NAAQS.  These members may attempt to push a similar rider as part of this year’s appropriations process.

For more on the final rule, see this statement from CPR Board Member Thomas McGarity

Next: “Waters of the United States” regulatory definition

[i] U.S. Envtl. Protection Agency, Off. Air & Radiation, The Benefits and Costs of the Clean Air Act from 1990 to 2020: Summary Report 14 (2011), available at http://www.epa.gov/cleanairactbenefits/feb11/summaryreport.pdf.

[ii] Am. Lung Assoc., State of the Air 2014, http://www.stateoftheair.org/2014/key-findings/ozone-pollution.html (last visited Oct. 31, 2014).

[iii] Elizabeth Weise, Report Details 2,000 Unhealthy Air Alerts in 2011, USA Today, Aug. 11, 2011, available at http://usatoday30.usatoday.com/weather/news/extremes/story/2011/08/Report-details-2000-unhealthy-air-alerts-in-2011/49920218/1.

[iv] Ava Nepaul et al., The Burden of Asthma in Connecticut: 2012 Surveillance Report 53 (Conn. Dept. Public Health, 2012), available at http://www.ct.gov/dph/lib/dph/hems/asthma/pdf/full_report_with_cover.pdf.

[v] Climate Change Threats to Worsen U.S. Ozone Pollution, Nat’l Ctr. Atmospheric Res./Univ. Corp. Atmospheric Res. AtmosNews, https://www2.ucar.edu/atmosnews/news/11540/climate-change-threatens-worsen-us-ozone-pollution (last visited Oct. 31, 2014).

[vi] U.S. Envtl. Protection Agency, Fact Sheet: Supplement to the Regulatory Impact Analysis for Ozone (2010), available at http://www.epa.gov/glo/pdfs/fs20100106ria.pdf.

[vii] Nat’l Assoc. Manufacturers, Ozone Regulations, http://www.nam.org/Special/Media-Campaign/EPA-Overregulation/Ozone-Regulations.aspx (last visited Oct. 31, 2014).

[viii] Timothy Cama, Louisiana Republicans Hold Briefing to Blast Potential EPA Ozone Rule, The Hill: Energy & Environment Wire, Aug. 22, 2014, http://thehill.com/policy/energy-environment/215795-louisiana-republicans-hold-hearing-to-blast-potential-epa-ozone (last visited Oct. 31, 2014).

[ix] Daniel J. Weiss, Arpita Bhattacharyya, & Raj Salhotra, Big Oil’s Smoggy Notions Proved False (Again…): CAP Analysis Disproves Claims About the Economic Effects of Strengthened Ozone Protections, Ctr. Am. Progress, Aug. 18, 2011, http://www.americanprogress.org/issues/green/news/2011/08/18/10076/big-oils-smoggy-notions-proved-false-again/ (last visited Oct. 31, 2014).

[x] Lea Radick, Texas Health Studies May Aid Opposition to Stricter EPA Ozone Standard, Inside EPA, Aug. 29, 2014.

[xi] John M. Broder, Re-election Strategy Is Tied to a Shift on Smog, N.Y. Times, Nov. 17, 2011, at A1, available at http://www.nytimes.com/2011/11/17/science/earth/policy-and-politics-collide-as-obama-enters-campaign-mode.html?pagewanted=all&_r=0.

[xii] Letter from Cass Sunstein, Administrator, Off. of Info. & Reg. Affairs, Off. of Mgmt. & Budget, Exec. Off. of the President, to Lisa Jackson, Administrator, U.S. Envtl. Protection Agency (Sept. 2, 2011), available at http://www.reginfo.gov/public/return/EPA_Return_Letter_9-2-2011.pdf.

[xiii] Amada Peterka, Republicans Offer Legislation to Block Tighter Ozone Standard, E&E Daily, Sept. 18, 2014.

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