Obama Administration Withdrawing EPA Ozone Standard an Illegal and Immoral Move

by Victor Flatt

September 02, 2011

Today’s decision of the Obama administration to withdraw new ozone rules is not only bad policy, it is also illegal. The Clean Air Act requires the EPA to revisit its National Ambient Air Quality Standards (NAAQS) every five years to ensure that they are adequate to protect the public health and safety. In 2006, the Bush Administration revisited the rules as required, but proposed a new standard of .75 P.P.M., which was far above the unanimous recommendations of the scientists who said somewhere between .60 and .70 P.P.M. was necessary to protect the public health. A lawsuit followed, and in response the Obama administration re-opened the rulemaking. This delayed a legal decision which most assuredly would have over-turned the 2008 final rules.

The Obama EPA proposed the more rigorous standards that could be supported by the science of 2006. In truth, new evidence suggests that the .60 to .70 limit itself may be too lenient, and that tens of thousands of people every year face premature deaths due to ozone.

Now, the Obama administration, noting that the standards will be revisited again in 2013, after the election, has withdrawn the rulemaking, in the name of regulatory relief.

By not following through with the new rules, the administration actually held back what surely would have been a successful lawsuit in 2008 (and one which will be re-instated). Moreover, the claim that Obama and the EPA are still protecting the public health is ludicrous. Real people will die from the failure to follow the law. Yes, there will be lawsuits and yes, eventually, the environmental groups will win because the law is clear, but in the meantime, many more people will have their health harmed and will die. Far from “regulatory relief,” if you can call killing people regulatory relief, the costs of these premature deaths far outweigh any direct costs to industry in order to comply with new rulemaking.

If the Obama administration or Members of Congress really want to impose higher costs on our economy in lower productivity to protect large corporations from lower costs to control dangerous pollution, if they are willing to make a policy decision to trade off lives of the young and vulnerable to enrich a smaller slice of the electorate (those who profit by not controlling their pollution), I suggest that they have an actual public policy debate about it in front of the American public.   See who agrees that sacrificing health and lives of people who gain nothing from this pollution in order to lower costs for others is the American way.

I think this action deserves a lot more analysis and action by CPR. I think the public needs you to step up and participate in any litigation. In the first place, we have an effort by the Executive Branch to assert that an Executive Order takes precedence over a statutory requirement. They have to know that should litigation be re-initiated, they will lose on this point. So too does the anti-regulatory crowd, which probably won't wait for the courts but will expect Administration support for an appropriations rider prohibiting EPA from using resources on this rulemaking. Second, the rationale used sets a very dangerous precedent for all health rulemaking. There is constantly new science being developed, and the APA does not require agencies to keep records open forever. There is constant pressure on agencies from industry, often backed by allies in Congress, to do just that. This statute, like many others, requires an agency to act based on the information available at the time -- just like the Congress, which authorizes the agencies, does itself. Indeed in this case it appears the EPA confined itself to evidence available in the record of the 2008 action. The anti-regulatory crowd will run with this theory (and probably suggested it as a way "out" to somebody senior who didn't understand the implications), unless a court reviewing this matter decides to spike this rationale. CPR needs to get out there to ensure that any court challenge explicitly raises this point. As a former federal regulator and participant in prior regulatory reform efforts, I have learned to give a little now and then when the alternative is a shellacking. It seems to me that the way for the White House to have approached this political problem in hard economic times is by requesting a delayed effective date (or taking credit for one if EPA included that in its draft). Yes, public health is at issue; but if you take a poll of the public, you're likely to find that until the economy recovers it is something they would be willing to defer until we see some signs of a recovery. I haven't seen the EPA benefits analysis, but typically some come sooner (e.g., investing in new technologies with added efficiencies) and some come down the road (e.g., fewer deaths) -- while the costs are up front. An appropriations rider prohibiting the agency from implementing a final rule has the same effect -- one year at a time only -- but extensions are harder to stop. A delayed effective date is very risky at the end of an Administration -- but at this point a one-year delay would not put the rule at risk.
— Peter Galvin
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Also from Victor Flatt

Victor B. Flatt is the  Dwight Olds Chair and Faculty Director of the Environment, Energy and Natural Resources Center, University of Houston Law Center, and a Distinguished Scholar, Global Energy Management Institute at the University of Houston.

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