Nothing attracts attacks in politics quite like a show of weakness. That’s obviously how energy industry lobbyists read President Obama’s recent retreat on ozone standards. So now that the Administration has demonstrated its willingness – you might even call it eagerness – to cave in on much needed environmental regulation, it’s no surprise that polluting industries are of a mind to press their luck.
How else to explain a request to the Environmental Protection Agency from the American Petroleum Institute – that’s the oil and natural gas industry trade group – to delay until late 2013 forthcoming regulations on refineries, including landmark greenhouse gas regulations.
The current plan is for those rules to be finalized at the end of this year.
To review the bidding on this, the greenhouse gas regs are the first to emerge from EPA after a long and brutal battle that involved eight years of Bush Administration intransigence, even in the face of a Supreme Court ruling that all but ordered the Administration to go ahead and regulate greenhouse gases. The Bush effort pretty much spanned the industry playbook. On the campaign trail in 2000, compassionate conservative George W. Bush said he’d regulate carbon dioxide to combat climate change. Once elected, he reneged, and took the view that climate change needed much, much, much more study. Years of study, in fact. Of course, when the scientists weighed in, the Bush team worked to suppress their expert opinion that climate change was real, man-made, and happening now.
Finally, the Administration ended up before the Supreme Court, which, despite its conservative majority, concluded that the Administration’s arguments on why it shouldn’t regulate greenhouse gases were just so much hot, CO2-laden air. Still, President Bush managed to leave town without making any progress toward regulation.
Full textSoon after assuming office in January 2009, President Obama promised that, in contrast to George W. Bush, science and law would be the two primary guiding stars for regulatory decision-making during his administration. From that perspective then, the finalized version of the EPA’s ozone standard should have been a no-brainer. After all, the standard was intended to replace the 2008 one issued in the dying days of the Bush Administration, which EPA Administrator Lisa Jackson has slammed as legally and scientifically indefensible. The Clean Air Act charges the EPA to set the ozone standard at a level that is protective of human health with an adequate margin of safety, and, consistent with this mandate and with the unanimous recommendation of the EPA’s blue ribbon clean air science advisors for how to achieve this mandate, the agency seem poised to set the new standard somewhere between 60 and 70 parts per billion (ppb).
Then politics—in the face of OIRA Administrator Cass Sunstein and White House Chief of Staff Bill Daley—intervened. The Obama Administration turned its back on both science and the law, and ordered Administrator Jackson to stop working on the new ozone standard. Under the circumstances, Obama wasn’t in the greatest position to justify this abrupt about-face.
Not surprisingly, the return letter from Sunstein formally rejecting the ozone rule betrayed more than just a mere soupçon of desperation. Drawing on Executive Order 13563, Sunstein relied in part on two novel considerations—regulatory uncertainty and the current economic situation—to justify the retreat. Then, without a hint of irony, Sunstein went on to claim that the decision was compelled in part by considerations of scientific integrity:
Full textLet’s stipulate: EPA’s withdrawal of a stronger ozone rule was the low point. And for many, a betrayal, a sedition, the nation’s biggest sell-out since Dylan went electric (or played China, take your pick).
Still, Jackson’s EPA has accomplished a great deal. Last week the EPA showcased new policy devoted to one issue with which Jackson has associated herself since day one: environmental justice.
The policy is called Plan EJ 2014, the agency’s comprehensive environmental justice strategy, planned to correspond with the 20th anniversary of President Clinton’s formative executive order on environmental justice (full disclosure: I was involved in the development of some parts of Plan EJ 2014 when I was in the Obama administration). The planoffers a road map for integrating environmental justice and civil rights into EPA’s daily work, including rulemaking, permitting, compliance and enforcement, community-based programs and coordination with other federal agencies. Jackson’s EPA deserves credit for making EJ an A-list priority, establishing a political-level, highly visible EJ advisor, and establishing this plan. Plans, of course, are only as good as their implementation, but this is a significant first step.
Full textCross-posted from RegBlog.
As Stuart Shapiro recently pointed out in a RegBlog post, President Obama himself made the decision a week ago to withdraw the U.S. Environmental Protection Agency’s (EPA’s) ozone National Ambient Air Quality Standard (NAAQS). Presidents have occasionally acted to resolve disputes between the White House Office of Information and Regulatory Affairs (OIRA) and EPA before, but typically OIRA acts in the President’s name without knowing exactly what he thinks about the regulatory details that OIRA negotiates with EPA. Stuart Shapiro also correctly points out that the President’s substitution of his general policy judgment for a judgment of an agency charged by Congress with the responsibility to implement a statute’s policy has implications for administrative law.
Obama’s withdrawal of the ozone NAAQS shows why these implications should trouble everybody, even those who do not like the Clean Air Act’s policy of basing the NAAQS on health considerations alone, leaving cost for later consideration in formulating plans to meet the NAAQS. Many Americans still believe that the “rule of law not men” embedded in our Constitution should mean something. There is some wisdom in this idea. Enacted law, however imperfect, can lend some stability to efforts to solve stubborn national problems and moderate the tendency of government to go into wild mood swings that can make government ineffectual. The rule of law, however, demands that those who enforce the law follow its policies even when they conflict with their personal or political preferences.
The Supreme Court has held that EPA must set the NAAQS at a level that protects public health without regard to costs. Obama’s decision relies squarely on a rejection of the law’s fundamental policy, citing the burdens on regulated firms during a time of economic weakness as the primary reason for withdrawing the standard. I would find the President’s decision to ignore the law in favor of his own policy preferences troubling, since we long ago rejected monarchy, even if I were sure that his policy decision was a sensible one.
Full textFrom what we hear, EPA is not a happy place these days, and we don’t wonder why. Never did a hard-pressed staff deserve so much guff, less. Politico reported that the White House is treating Lisa Jackson with kid gloves, hoping against hope that she won’t up and quit on them over the outrageous White House trashing of the efforts to update an outmoded, unhealthy, and legally indefensible 1997 ozone standard. Good thinking for a change. With the Natural Resources Defense Council (NRDC) sending e-mails to 1.3 million members and online activists declaring that the White House “threw you overboard,” it’s way past time for the President, his Chief of Staff, and regulatory czar Cass Sunstein to remember they are Democrats, not soldiers in the Boehner army.
Obviously, no one knows what Jackson will do and the decision is both a personal and a difficult one. Ozone was extraordinarily offensive, and good arguments can be made that resignation is her best alternative. On the other hand, she has more work to do and only a hard kick in the rear will force the White House to let her do it. The least we can do is watch EPA like hawks, standing ready, willing, and able to call out industry interference at the earliest possible stage.
In that regard, we smell a rat chewing on the power cords that support EPA’s Integrated Risk Information System (IRIS), the internationally renowned database of toxicological profiles that garners 2,000 hits a day (for a scientific database like this, that’s a lot). The American Chemistry Council has IRIS in the cross hairs, recently testifying before Congress that it should have all its work checked by the National Academies of Science. Then, on August 31, EPA published a notice that it would take public comment on its draft assessment of 1,4-dioxane, a Hazardous Air Pollutant under the Clean Air Act because it is a probable human carcinogen (cancer-causing agent). The chemical is used to stabilize trichloroethylene and perchloroethylene, especially in a military context. The draft IRIS profile would set an inhalation value—the amount that can be breathed in without adverse health effects--for the chemical because new studies have been done since IRIS first posted a profile in 1988. According to the EPA Toxics Release Inventory, 47 percent of releases of the chemical are in air.
Full textLast 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.
Full textIn perhaps the most troubling sign of his determination to pander to business at the expense of public health, President Obama announced this morning that he had blocked EPA’s science-based efforts to lower the levels of smog that drive children and the elderly inside on Code Red days. Automobile manufacturers, power plant operators, the oil industry, and the Chamber of Commerce are breaking out the champagne, while the public health community despairs of the President who promised so much and has delivered so little.
The hard truth is that in this case the President has decided to flout the Clean Air Act to precisely the same extent as his predecessor.
The Act established a panel of doctors and scientists, known as the Clean Air Act Science Advisory Committee (CASAC), a blue ribbon panel with impeccable credentials. The panel has pleaded with EPA to lower ozone to at least 70—and preferably 60—parts per billion in the air. President Bush shoved aside these recommendations, setting a 75 ppb standard. President Obama has just ensured that this harmful level will persist for another several years.
The White House is spinning this as an effort to ease the burden on states and industry for the sake of the economy. In fact, it’s a cave-in to political pressure. No one should be fooled. As it turns out, "yes we can" has once again become "no, we daren’t."
Full textToday’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.
Full textThis post was written by CPR President Rena Steinzor and Policy Analyst James Goodwin.
Few incidents better illustrate the Bush Administration’s outright hostility to politically inconvenient science than its 2008 rule updating the ozone National Ambient Air Quality Standard (NAAQS). In the run-up to that rule, Bush’s EPA ignored the unanimous recommendation of the Clean Air Science Advisory Committee (CASAC), an independent and well-respected advisor to the EPA on clean air issues, that it set the standard in the range of 60 to 70 parts per billion (ppb) to replace the existing standard of 84 ppb. Instead, the final rule—issued in the waning days of the Bush Administration—set the standard at 75 ppb, well above CASAC’s recommended range.
The ozone standard was so bad that soon after it was issued in 2008, CASAC took the unusual step of publicly criticizing Bush’s EPA for ignoring its advice.
Fortunately, the Obama Administration, which began before the ozone standard could take effect, delayed its implementation, and in September of 2010, the EPA began a formal reconsideration process to revise the ozone standard. The EPA is now set to issue a final rule setting the ozone standard somewhere in the recommended range of 60 to 70 ppb sometime next month—more than three years late. (In the interim, the original 84-ppb standard has remained in effect.)
Full textIn April, CPR released a paper that looked at 12 critical rulemaking activities that we urged the Obama administration to finish by June 2012. The new regulatory agendas released by the agencies earlier this month show that instead of moving forward, the agencies are often slowing down. Contrary to the “tsunami” of regulations that the Chamber of Commerce claims is hampering economic recovery, this is a molasses flow that will delay life-saving public protections for workers, air breathers and water drinkers.
One rule that was on track in April is now definitely off track: an update to the National Ambient Air Quality Standard (NAAQS) for particulate matter. Another rule that was on track is now probably off track: the Power Plant New Source Performance Standards for limiting greenhouse gases were pushed back from May 2012 to Jun 2012, which is the deadline we identified to complete rules in Obama’s first term (after that point, re-election politics will likely stifle any continued efforts to finish important rulemakings, and, in any event, rules completed after that point risk being overturned under the Congressional Review Act if Republicans are able to win both houses of Congress and the White House in the 2012 elections).
All or parts of eight of the rulemaking activities highlighted in the paper have been severely delayed since the paper was released in April: