Back in 2007, U.S. EPA was sued by some States and environmental groups who challenged the legitimacy of the ozone standard -75 parts per billion (ppb)- selected by the Bush Administration. In 2009, the Obama Administration announced that it was reconsidering the 75 ppb standard.
U.S. EPA is likely to revise the standard to somewhere between 60 ppb to 70 ppb. (See the map for the implications of a revised standard on the Midwest)
Back in September 16, 2009, U.S. EPA filed a pleading informing the Court that it would finalize the new standard by August 31, 2010.
In curious timing, the U.S. EPA announced it needed two more months and could not finalize the ozone standard until late October.
Some questioned, including me, whether the delay was a calculated move to make the controversial announcement after the election. (See, prior post) Now U.S. EPA has announced, once again, it would delay the finalization of the standard. Only this time the delay would be nearly six months.
On December 8, 2010, U.S. EPA filed a Motion declaring it would need until the July 29, 2011 to complete its review of the ozone standard. The U.S. EPA said it needed to consult its science advisory board (Clean Air Scientific Advisory Committee- CASAC) due to the significant number of comments and new information it received.
In the motion, U.S. EPA sets forth its process for finalizing the ozone standard.
- U.S. EPA will develop a set of questions for CASAC for its review asking the Committee to review scientific evidence and other information before U.S. EPA
- CASAC will hold public meetings to discuss its response to the questions;
- CASAC will provide additional written advice to U.S. EPA regarding the new ozone standard; and
- New public comment period to provide comments on CASAC review and to U.S. EPA
President’s Executive Order
On January 18th, President Obama’s issued an executive order requiring all federal agencies to evaluate the economic impacts on business of its rulemakings. The executive order directs federal agencies developing regulations to “use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” At its core, the order is intended to force federal agencies to provide greater attention to the potential costs and burden of new regulations on businesses.
While the motion delaying finalization of the ozone standard was filed prior to the executive order, U.S. EPA’s actions are consistent with the Obama Administration’s overall goal of giving greater scrutiny to the impact on economic growth from regulation. Only problem is that the U.S. Supreme Court has already ruled that the Clean Air Act prohibits U.S. EPA from considering costs and economic impact when setting the ozone standard.
U.S. Supreme Court determined in Whitman v American Trucking that U.S. EPA could not consider costs in setting the standard. The Court held EPA can only consider costs if its expressly granted that authority by Congress:
Section 109(b) [of the Clean Air Act] does not permit the Administrator to consider implementation costs in setting NAAQS. Because the CAA often expressly grants the EPA the authority to consider implementation costs, a provision for costs will not be inferred from its ambiguous provisions.
Rather than continuing to manipulate the process by constantly delaying the final ozone standard, perhaps the Administration needs to realize that ozone standards and the National Ambient Air Quality Standards (NAAQS) have huge impacts on the economy.
Some sort of cost-benefit analysis that allows considerations of costs in setting standards just makes sense. We can’t continue to ignore the impacts of new controls and the Clean Air Act’s restrictions on economic growth imposed on areas that do no meet the standard.