January 29, 2010

EPA's New NO2 Rule: A Tale of OMB Interference

The EPA issued a new rule recently on nitrogen dioxide (NO2) -- but not before it was weakened by OMB. The consequences for the public health are real.

The possibility of OMB interference in the rule was first raised by Matt Madia of OMB Watch. He noted that EPA's draft final rule -- sent to OIRA for review on December 18 -- required all metropolitan areas with a population of 350,000 people or more to install a monitoring station for measuring NO2 emissions near a major roadway in the area. By the time OIRA completed its review on January 22, the minimum threshold for monitoring stations had been increased to one per 500,000 people. Troubling, to say the least.

We noticed a document that shines further light on what happened behind the scenes. The EPA had made its position clear, it turns out. In a January 20th email about the "500,000" proposal, Lisa Heinzerling, the EPA's Associate Administrator for policy, wrote, "EPA does not support the alternative threshold described in the email below." (Full disclosure: Heinzerling is a former Member Scholar of CPR. We found the e-mail in question ourselves.)

An aside: it's worth noting that it appears from the email that a less senior EPA staffer had earlier been prepared to agree to OMB's weaker rule, which may say something about a culture of OMB supremacy too often ingrained in the agencies. EPA's position as articulated by Heinzerling, though, was the right one -- to stand up for the stronger standard. The agency had, after all, sent the rule over originally at 350,000, acting independently and on the basis of its best scientific judgment.

EPA stood up for protecting public health, but OMB trumped it, and won.

So why does this all matter?

EPA’s new rule represents the first time in nearly 40 years that the agency has updated the air quality standards for NO2. Scientific evidence links human NO2 exposure with various respiratory health problems. Adverse health effects are particularly pronounced in vulnerable populations, including children, asthma sufferers, and the elderly. NO2 can also react with other pollutants to form small particulate matter and ground-level ozone (or smog), which can be a cause of respiratory disease, aggravate existing heart disease, and result in increased hospital visits and even premature death. The biggest source of NO2 pollution is automobile emissions, though power plants and heavy industry are also significant contributors. NO2 pollution levels tend to be greater in urban areas and near major roadways, which means NO2 pollution tends to disproportionately harm the poor and communities of color.

EPA’s new rule created for the first time a short-term limit on allowable NO2 levels of 100 ppb—that is, the average level of NO2, as measured over any given hour, can never exceed 100 ppb.

The last-minute decrease in the number of monitoring stations is significant. These monitoring stations are vital to the enforcement of EPA’s new standard. Without adequate monitoring, EPA has no way of telling whether or not metropolitan areas with larger populations and greater levels of NO2 are complying with the new short-term standard. The fewer the monitors, the more likely it is that many metropolitan areas will be able to exceed EPA’s limits without detection or correction.

The White House ought to refrain from lopsided intervention that skews the regulatory process against strong and effective regulation.

Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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