Defending Obama’s Decision to Withdraw the Ozone Rules

Posted: Dec 16, 2017

By Mark Squillace, Director, Natural Resources Law Center

My wife complains that I am constantly apologizing for Obama (and she’s probably right), so maybe that explains why I think Obama’s decision to withdraw the ozone rule is actually a smart one. But let me at least share my reasons.

The ozone rule involves a national ambient air quality standard (“NAAQS”). Ozone is one of six “criteria” pollutants for which EPA has established NAAQS. The Clean Air Act requires the EPA to review the NAAQS every five years – a deadline that is not terribly practical and that is rarely met.

The current ozone standard was established during the Clinton Administration and sets the ozone NAAQS at 80 parts per billion (ppb) averaged over any eight hour period. 40 CFR §50.10 (2010).

Towards the end of the George W. Bush Administration the EPA revised the standard downward to 75 ppb. 73 Fed. Reg. 16,436 (March 28, 2008). This was higher than the EPA’s science advisory board’s 2006 recommendation, which was to set the standard between 60 and 70 ppb. Lawsuits were filed challenging the Bush standard and while they were pending, the Obama Administration asked the court to stay the litigation pending its review of the Bush standards. EPA was finally prepared to approve revised standards that tracked the science board’s recommendations and this is the rule that has been forestalled by Obama’s decision.

The chief reason cited by Obama for his decision is that EPA's scientific advisory board is scheduled to complete its next review of the ozone standard by 2013.  New information that comes out of that process could very well make efforts to implement an ozone standard based upon the 2006 recommendations obsolete long before they even become effective.

In addition, despite the delay in implementing revised ozone standards that this decision has caused, the actual impact on public health from this decision is not easy to gauge. And while in a perfect world more stringent ozone standards make perfect sense, there are some compelling reasons for holding off on adopting new ozone standards right now.

First, I want to acknowledge the importance of deferring to the scientific experts, especially when setting standards designed to protect public health. Moreover, we have a clear Supreme Court decision in which Justice Scalia tells us (somewhat surprisingly) that the NAAQS are supposed to be based solely on public health considerations. Whitman v. American Trucking Association. Still, we should not delude ourselves into thinking that public health is the only factor actually considered. Everything I have read about ozone suggests that it is a non-threshold pollutant, i.e., a pollutant that is toxic at any level. So, if we were serious about focusing only on public health, we would presumably set the ozone NAAQS at zero. Does anyone want to seriously argue that the ozone standard should be set at zero? And if we are not setting it at zero, then aren’t we inevitably allowing considerations other than public health to come into play?

Second, NAAQS are not self-implementing. Rather, the states revise their “State Implementation Plans” (SIPs) in ways that hopefully will achieve those standards. This is an especially complicated problem for ozone since ozone itself is not emitted by pollution sources. Rather, ozone is formed when nitrous oxides (NOx) and volatile organic compounds (VOCs) are exposed to sunlight. NOx and VOCs are emitted by myriad sources including motor vehicles. So, any plan to reduce ozone necessarily requires addressing NOx and VOC emissions. But getting the mix of emission controls right is extremely difficult to do and states are quite often overly optimistic about what, in terms of reduced ozone levels, any particular mix of controls is going to achieve.

Because this is so complicated, the Clean Air Act gives states three years after promulgation of the new NAAQS to submit proposed revisions to their SIPs, and the EPA can extend that time for 18 months. The EPA then has six months to review the revised SIP. That’s potentially five years from the time the standards are approved until the plans are fixed – and that’s only if all the deadlines are met and the states’ plans are in fact approved by the EPA. So, even if EPA were to approve new ozone NAAQS today, it would likely be at least 2016 before these standards actually went into effect. And if it turns out that the mix of controls adopted by the states don’t work out as planned, it will be at least several more years before a new mix can be adopted.

That brings me to my third point. If Obama is not reelected, the more stringent standards supported by EPA Administrator Lisa Jackson would never have been implemented even if Obama had approved them. Moreover, we can pretty much count on the fact that any scientific review of the ozone standard carried out during a Perry or Romney Administration would not recommend a more stringent ozone standard.

I supported the efforts by the EPA to adopt more stringent ozone standards but I never had any illusions that we were likely to see these standards actually implemented in the near future. Even if Obama had approved the Jackson standards, and even if he is reelected, the 2013 review could very well lead to the adoption of new standards long before the states have the chance to actually implement the Jackson standards. At that point, EPA would likely abandon the efforts to revise the SIPs based upon the Jackson standards and tell the states to begin anew.

Given the complexity associated with the process for setting NAAQs, and getting the NAAQS implemented through the SIP process, it seems fair to suggest that the current process for revising NAAQS is broken. So perhaps rather than criticizing Obama for making what is admittedly a political decision, we should think about ways to improve the process. One idea, for example, would be for the EPA to impose certain default measures on SIPs that would go into effect automatically when states fail to submit approvable revisions to their current SIPs in a timely manner. But let’s not make more out of Obama’s decision than is really there.

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