September 06, 2011

Lisa Jackson Should Promulgate the Ozone Standard or Resign

Last Friday, President Obama ordered EPA Administrator Lisa Jackson to withdraw EPA’s new ambient air quality standard for ground level ozone (smog). The order came in a letter from Cass Sunstein, the head of the Office of Information and Regulatory Affairs in the Office of Management and Budget. 

The order does not pretend to be based on science. Indeed, it flies in the face of the available science on the human health effects of ozone as determined on at least two occasions by EPA’s Clean Air Scientific Advisory Committee (CASAC). The White House acknowledges – even touts – that the order is based on economic considerations (President Obama wrote in a statement Friday that “I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time.”) But the Supreme Court, in a unanimous decision written by Justice Antonin Scalia, held that costs are not to be considered in setting ambient air quality standards.

If Administrator Lisa Jackson obeys the order, her action may not strictly violate the letter of Clean Air Act, but it will violate the spirit of that statute. It will also be the wrong thing to do from a public policy perspective. Leaving the current standard in place will (according to EPA’s own calculations) result in up to 2,200 heart attacks and up to 4,300 deaths per year. 

Administrator Jackson should therefore disobey the order or resign.

The determination of the appropriate level for the national ambient air quality standard for ozone is not Cass Sunstein's or Barack Obama's decision to make. The Clean Air Act delegates the decision to promulgate ambient air quality standards to the Administrator of EPA, not the President or his White House underlings. 

In other words, Lisa Jackson is the delegated decisionmaker, and she is duty-bound to act in accordance with the statute. Although the White House has not disclosed the contents of the package that EPA sent to it back in July, Administrator Jackson had concluded that the law and the available science demand a more stringent standard (citing, in 2010, “concerns that the 2008 standards were not legally defensible”). She should therefore propose the standard that she, not President Obama, deems most appropriate. Furthermore, she should honor a commitment that she made to environmental organizations who had challenged the insufficiently stringent George W. Bush Administration standard that she promulgate a new standard expeditiously if they put their lawsuit on hold. 

Realistically, it is not very likely that Administrator Jackson will violate a direct order of the President to put the standard aside until after the election. If not, she should therefore do the honorable thing and resign.

Let me explain.

Under the Clean Air Act, EPA is required to establish ambient air quality standards at a level that protects human health with an adequate margin of safety. It’s at this standard-setting stage that the Supreme Court made clear that costs may not be considered—the law doesn’t call for it, and it’s not for the courts, EPA or the President to attempt to insert cost as a factor. Once a standard is established, the states are supposed to require sources of ozone-producing pollutants, such as power plants and refineries, to implement controls that are sufficient to ensure that the standard will be attained in the future. Costs may, of course, be taken into account in writing state implementation plans. That means that EPA’s task at hand is to make a scientific judgment about what the standard should be – not a political or economic one. How, when, and at what cost the states live up to the standard is a separate decision.

The Act also requires EPA to re-examine the science every five years and determine whether a standard needs to be revised, again, based on the science. Since EPA first began writing standards for ozone in 1970, the standards have become increasingly stringent as more scientific information has demonstrated that photochemical oxidants have adverse effects on human beings at lower and lower concentrations. 

The currently applicable standard of 84 parts per billion (ppb) was promulgated in 1997. When the George W. Bush Administration finally got around to revising the standard in 2008, it proposed a standard of 75 ppb, which was less stringent than the 60-70 ppb range that the agency’s Clean Air Scientific Advisory Committee (CASAC) had recommended. In an extraordinary act of resistance, the CASAC told the EPA Administrator that the proposed standard was not supported by the scientific evidence. Not surprisingly, environmental groups challenged the Bush Administration standard in court. As mentioned above, they put their lawsuit on hold to give EPA time to write a more stringent standard.

Soon after President Obama was inaugurated, Administrator Jackson struck a deal with the environmental organizations under which EPA withdrew the Bush Administration standard and promised to propose a new (and presumably more stringent) standard by August 2010. The agreement effectively left the outdated 1997 standard in place, because EPA told the states not to worry about implementing the withdrawn standard.

EPA missed the August 2010 deadline. Out of an abundance of caution, Jackson asked the CASAC to review the scientific information one more time. The CASAC did so and once again recommended a standard in the 60-70 ppb range. In January of this year, Administrator Jackson said that EPA would propose a standard in that range. The agency then completed its proposal and sent it to the White House Office of Management and Budget in July, where it languished until last Friday.

If Administrator Jackson now reneges on her agreement with the environmental organizations and puts the ozone standard on the back burner until 2013 or later, Americans living in cities – where ozone pollution is at its worst – will be left in worse shape than they would have been had the inadequate Bush Administration standard gone into effect.

When White House officials ordered EPA Administrator Bill Reilly to narrow the agency’s definition of “wetlands” under the Clean Water Act during the George H.W. Bush Administration, he refused to do so, and the White House backed off. Four days after being humiliated by the disclosure that a White House underling had rewritten the global warming section of a major agency report on air quality, President George W. Bush’s first EPA Administrator, Christine Todd Whitman, deleted the rewritten section from the report and resigned. 

For the last two-and-a-half years, Lisa Jackson has been an outstanding EPA Administrator. Like Bill Ruckelshaus in 1983, she stirred a shell-shocked agency into action and renewed the government’s commitment to clean air and water. The nation owes her an enormous debt of gratitude. 

But she has now been ordered to sacrifice the public health in pursuit of an elusive promise from the energy industry that reducing environmental protections will magically yield economic growth. We have been down that road before during the early years of the Reagan Administration, during the last year of the George H.W. Bush Administration, and during the entire George W. Bush Administration. And we know from past experience that both environmental degradation and economic stagnation lie at the end of that road.

Administrator Jackson has served ably and courageously. With her boss now telling her to do the unconscionable, she’s got one last act of courage ahead of her, leaving her with only two reasonable alternatives. She should either defy him or step down. Either way, she’ll be a hero.

Thomas McGarity, CPR Member Scholar; Endowed Chair in Admin. Law, University of Texas School of Law. Bio.

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1 The Presidential Decision to Delay the EPA Ozone Standard is based upon a Process Adopted by Nine Administrations The decision of the President to delay the EPA ozone standard is based upon the concept of centralized regulatory review. Centralized regulatory review, Presidential oversight of federal regulatory agencies, is often considered a defining component of the regulatory state although the Executive, Congressional and Judicial Branches of government continue to spar over control of the regulators. There are two alternative views of the origins of centralized review. One view of the origin of centralized regulatory review is set forth in probably the most quoted paper on the subject written by then Professor, now Justice, Elena Kagan in Presidential Administration in which she concludes: “The sea change began with Ronald Reagan’s inauguration”. Another view is that of Jim Tozzi, a ranking career civil servant in charge of centralized regulatory review for the Johnson, Nixon, Ford, Carter and Reagan Administrations, who concludes that there is a near seamless evolution of Presidential control over the regulators as a result of then five, and now nine, Administrations. Dr. Tozzi made these points in his unpublished remarks at a recent George Washington University Symposium on the OMB Office of Information and Regulatory Affairs, available at In essence the President’s decision on ozone is not based upon a quick fix developed by the Reagan Administration but instead upon the deliberate decisions of nine consecutive Presidential Administrations
-- Jim Tozzi
2 Unfortunately, this action has left many of things up in the air still. If a new standard is not issued, the 2008 standard of 75 ppb still cannot just be "withdrawn." It's not clear at all what that means, since EPA has now missed the statutory deadline for issuing standards under the 2008 standard (March 12, 2011) and hasn't issued any implementation rule for the standard. President Obama's statement references not wanting to force states to implement a new standard when the standard is up for review in 2 years, but that happens all the time since the standard must be reviewed every five years. Does that mean the President expects to just hold his breath for 2 years until the 2013 rulemaking and hope that the courts don't notice? When the EPA announced it was giving itself another year for designations under the 2008 standard, it indicated it would use the Governors' recommendations to designate areas. However, many areas that had initially been recommended to be designated nonattainment areas are now monitoring attainment-it's unclear what will become of them now. In Texas, these include Travis County, Bexar County, and El Paso County.
-- Andrew Hoekzema
3 Ms. Jackson won't resign. It's not in her political interest to do so. But this is a colossal failure for someone who has done a lot of image shaping and self-promotio. By the time the Bush standards are litigated, President Rick Perry will be making the decision on the next ozone standard.
-- Woody Pfister

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