The Obama Administration, after stopping the implementation of the Bush-era ozone standard, has delayed choosing a revised standard three times. These delays had given hope that EPA may wait to choose a revised standard until after the election.
In conversations with representatives for industry most impacted by the revised ozone standards, they told me they thought the Administration was positioning itself to delay implementation for an extended period of time. Now, it appears EPA is completing the final steps toward selection of a revised standard. On July 26th, EPA released the following statement:
Administrator Jackson is fully committed to finalizing EPA’s reconsideration of the Clean Air Act health standard for ground level ozone. That reconsideration is currently going through interagency review led by OMB. Following completion of this final step, EPA will finalize its reconsideration, but will not issue the final rule on July 29th, the date the agency had intended. We look forward to finalizing this standard shortly. A new ozone standard will be based on the best science and meet the obligation established under the Clean Air Act to protect the health of the American people. In implementing this new standard, EPA will use the long-standing flexibility in the Clean Air Act to consider costs, jobs and the economy.
Background on EPA’s Selection of a Revised Ozone Standard
The last time the ozone standard was revised was in 1997. The 1997 standard was 84 parts per billion (ppb). The Clean Air Act mandates review of federal air quality standards every five years.
Back in 2006, the Clean Air Science Advisory Committee (CASAC)- EPA’s science advisory panel- recommended an ozone standard between 60 and 70 ppb after reviewing the latest studies. In a very controversial move, Bush’s EPA Administrator- Stephen Johnson- chose to set it at 75 ppb instead of a standard in the range recommended by CASAC.
Soon after the election, Obama’s EPA Administrator, Lisa Jackson, announced the Agency was delaying implementation of the 75 ppb standard and revisiting the standard itself. Since its initial announcement, EPA has delay taking action three separate times.
Costs Cannot Be Considered
The ozone standard is seen by many as the most costly regulatory decision EPA implements. Total cost of compliance with the Bush-era standard was estimated at roughly $8 billion. A revised standard between 60 ppb-70 ppb will be much higher. Its important to remember the the Supreme Court has already ruled that EPA cannot consider cost in selecting a standard (ATA v. Whitman).
Delays Already Have Avoided Implementation During Economic Downturn
We probably have already forgotten the schedule for implementation of the proposed 2008 ozone standard (75 ppb). Final designations were supposed to occur in March 2010.
Final designations would have immediately implemented tough new restrictions for growth in areas that didn’t meet the standard.
Using EPA’s 2008 proposed schedule as a guide, if EPA acts in August 2011 it is likely that final designations won’t be effective until August 2013 or perhaps even longer. Attainment deadlines pushing out to 2018-2035.
All Signs Point to a 70 ppb Ozone Standard
EPA’s own statements point to a standard lower than 75 ppb. Let’s look at two of the sentences in EPA’s recent announcement. I have bolded the key language:
- A new ozone standard will be based on the best science; and
- In implementing this new standard, EPA will use the long-standing flexibility in the Clean Air Act to consider costs, jobs and the economy;
First, EPA states it will select a standard based on the "best science." As soon as EPA stopped the implementation of the Bush-era 75 ppb standard, it blasted the standard as not based on science. EPA has boxed itself in a corner and must select a standard in the range recommended by CASAC of between 60 ppb – 70 ppb.
Second, EPA comments show it is already bracing for the backlash that will ensue by selecting a lower standard. EPA will certainly take heat for imposing a very costly new regulation during a tough economy. Therefore, it already sending a signal that will will try to ease the pain by "considering costs" when "implementing this new standard." This could mean a longer implementation or extended compliance deadlines.
On July 13th, Administrator Jackson sent a letter to Senator Carper regarding the 2008 Bush era ozone standard. This letter is yet another indication EPA will select a standard between 60 ppb to 70 ppb. In her letter the Administrator basically states the 75 ppb standard was not legally defensible because of CASAC’s recommendation.
Based on its actions stopping the implementation of the 2008 proposed ozone standard, EPA has no choice but to select a standard within the rage recommended by CASAC. Given the state of the economy, EPA also has no choice but to select a standard within that range that will have least economic impact- 70 ppb.