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A Smog of Euphemism and Spin

[Update: 9/12/11 – A former EPA Assistant Administrator and current Georgetown Law Professor agrees with me on the law and on the science and on lack of transparency:

On the law:

The reason the President gave for asking EPA to withdraw its standard is an unlawful reason. …The [Supreme Court] has unequivocally held that the Clean Air Act forbids the consideration of economic costs in setting the NAAQS [National Ambient Air Quality Standard].”

The good Law Professor also says exactly the same thing I have said numerous times about Governor Christie’s Executive Orders on regulatory review and Red Tape:

The President’s Executive Order on regulatory review, issued last January and indirectly alluded to in the President’s statement on ozone, does not — and cannot — override the requirements of the Clean Air Act.

On the Science:

The Clean Air Act, as conclusively interpreted by the Supreme Court, requires EPA to set the NAAQS based on the scientific evidence of harms to public health posed by the air pollutant in question. One of the decisions most decried by critics of the Bush-era EPA was its NAAQS for ozone, set in 2006.  In issuing its standard, the Bush-era EPA departed from the advice of its scientific advisors and set a less stringent standard than the scientific advisors had recommended. It is hard to see how President Obama’s decision today reflects an attitude toward science that is any more respectful than the attitude the Bush administration displayed in its 2008 ozone standard. What is more, it seems that EPA will now be required to defend that Bush-era standard in court, which means that the agency may well make arguments about the shape and scope of EPA discretion under the NAAQS program that the agency will come to regret when and if it attempts, some time in the future, to set an adequately protective standard in the face of inevitable industry opposition.

On Lack of Transparency:

President Obama has made open government one of the central themes of his administration. When rules like the ozone NAAQS go to the White House for review, they are accompanied by a detailed explanation of the agency’s reasons for deciding the way it did; this is the document that, if the White House clears the rule, will appear in the Federal Register as the agency’s explanation for its rule.  The ozone NAAQS was sent to the White House for review in July. Thus there exists a full package from EPA containing the final rule and the explanation for it. The least the White House can do at this point is to release that package. Let the public know what EPA concluded in its final package about the harmful effects of ozone pollution. Let states and local governments take that information and decide whether to strengthen their own pollution standards in light of what EPA has found. Let citizens decide what actions to take in light of that evidence. As President Obama explained when he issued a memorandum directing agencies to adopt a presumption of disclosure under the Freedom of Information Act: “Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve  It is hard to see a public-regarding reason for not disclosing the EPA’s explanation of the science on ozone and the public’s health.

That sounds like the same lack of transparency under Christie Red Tape Order, where I warned:

The Lt. Governor is given powers to work behind closed doors and block regulations in a way that is sharply at odds with the due process, transparency, and public participation requirements of NJ’s Administrative Procedures Act. This unaccountable power literally invites abuse by private interests.

And Nobel Prize winning Princeton economist and NY Times columnist Paul Krugman agrees on the economics – end update.]

Today, NJ Spotlight covers the Obama Administration’s Labor Day Friday Afternoon Massacre of the public health framework of the Clean Air Act – see:

More Smog in the Forecast for New Jersey? Obama administration backs away from new rule that would tighten limits on ground-level ozone

I don’t mean to single out NJ Spotlight, especially because they are almost the only game in town when it comes to environmental policy coverage out of Trenton. And their coverage is no different on this issue than other news outlets.

But, again, we need to make the fundamental point on the Clean Air Act’s National Ambient Air Quality Standards (NAAQS) right up front.

Those standards must be based on science and may not consider economic cost of compliance.

Even Cass Sunstein, head of Obama’s Office of Management and Budget’s Office of Information and Regulatory Affairs, who killed the EPA’s proposed ozone standard, noted this legal requirement in his letter to EPA Administrator Jackson:

We recognize that the relevant provisions of the Clean Air Act forbid EPA to consider costs in deciding on the stringency of national ambient air quality standards (sic), both primary and secondary.

The Clean Air Act’s NAAQS public health basis and legal prohibition on cost considerations have been ignored, obscured, and even misrepresented by media coverage, which is fixated on jobs and economics, and fueled by industry lies, exaggerations, and spin.

President Obama is deeply politicizing the science, eroding the public health framework of the Clean Air Act, and further destroying the independence and integrity of EPA.

EPA Administrator Lisa Jackson has been totally ineffective in defending the Clean Air Act, the independence of EPA, or the integrity of the science.

We think these issues should be front and center of the news coverage.

But even NJ Spotlight is not immune to these media dynamics, so we posted the following comment on their story:

The proposed EPA ozone standard was backed by science and EPA and academic scientists, not just environmentalists.

The economic analysis of the proposal indicated positive NET economic BENEFITS (in addition to public health benefits, including reduction in thousands of DEATHS and avoidance of hospitalizations).

Obama’s stated basis for for withdrawing the proposal was due to “regulatory burden” and “uncertainty”.

No credible independent economist blames either of these factors for the recession or the private sector’s failure to create jobs, at a time when they are sitting on trillions of dollars in cash, off shoring jobs and investment, and paying CEO’s billions in bonuses.

Obama is using the same lies as Governor Christie to attack environmental protections and politicize the science.

Lisa Jackson is unable to defend the science or the independence of EPA and is going along for the ride and serving as cheerleader for Obama – just like she did under Corzine.

When EPA Administrator Christie Whitman did that under President Bush, they both were correctly denounced.

The double standard for Obama and Jackson is mind boggling.

Further evidence in NJ Newsroom story – even the headline gets it fundamentally wrong. Gee, I wonder where they got that? A Friend of Lisa, no doubt.

HELLO! Obama didn’t delay the proposed standard, he killed it outright.

Why are NJ enviro’s soft peddling that?

See Cass Sunstein’s letter.

Any new ozone standard would need to start from square one, and would not be in place until 2016, at the earliest.

Many states will now revert to the 1997 84 ppb standard, so Obama is weakening the Bush 75 ppb standard and injecting 20 YEARS of delay!!

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  1. Bill Neil
    September 7th, 2011 at 12:57 | #1

    Hi Bill:

    If you can fit it in, could you sketch out for us what the broad economic “tensions” might have been if the EPA attempt had not been overturned? To be more precise, in what areas, processes, was the status quo of transportation, construction equipment, energy sources – or other pollutant generators going to have change to meet the rule?

    This may be asking a lot, but we need your expertise to ground this in reality and not the usual business response. Since this lost change has been in the works for years, I assume there has been a lot of game-planning and chess-boarding on how this would play out – but suddenly that all disappears in the “economic hard times plea.” And we certainly have hard economic times; so does any of the opposition make sense, or were there ways to bend the response to create jobs and move towards the goals at the same time?

    At your leisure and not meant to be a burden.

  2. September 7th, 2011 at 15:27 | #2

    @Bill Neil
    Bill – you ask a difficult and complex set of questions.

    Perhaps I can do an update or new post to address them –

    In the meantime, I would refer readers to EPA’s Supplemental Regulatory Impact Analysis, which examines a range of 55 – 70 ppb – see:

    The original 2008 baseline analysis of the Bush administration’s 75 ppb standard (to which the supplemental refers) can be found here:

    Those analyses consider compliance costs by economic sector, as well as specific non-attainment regions throughout the Country. The regional variation is significant, and impacts the politics.

    As you will note right off the bat (Table S1.1), the outputs are sensitive to many key assumptions – changing the standard from 55 ppb to 70 ppb and the (discounting) interest rate from 3% to 7% in the monetized valuation of health benefits drives net benefits from -$32 billion to +$62 billion! (and avoided deaths from 5,900 to 18,000 – talk about Death Panels!)

    Of course, there are huge technical, policy, and value choices embedded in the selected compliance targets and various assumptions.

    And don’t forget that this is a NAAQS – that still requires States to develop State Implementation plans (SIPs) that describe how each state would meet the ambient standard by reducing instate emissions. This is typically like a 3+ year planning process, adn then the SIPs get implemented in a phased fashion.

    So, some of the specificity you seek on which industries get hit and when they get hit is premature

    The best EPA can do is estimate.

    Until I get a chance to digest it all, hit the links and look at how the compliance burden is distributed geographically across the country. )Chapter 5 of original analysis has this)

    And then look at the sectoral distribution of costs.

    This is getting too lengthy for a comment, so give me a few days and I’ll write something more specific.

  3. Bill Neil
    September 7th, 2011 at 17:48 | #3

    Bill thanks for the links; I took a look at the first EPA link, and see where your comments are coming from.

    In your article’s originial media links, I noticed attention going to some old environmental “favorites,” like coal burning plants, cement factories, refineries.

    That’s what led to my original question: some of these are old, old sources, and the remedies driven by tougher standards have been looming for years, so one would have hoped remedies and their costs were already in the industry pipelines (forgive that expression these days) and as they say on “The Street,” already baked in…the cake – so why the faux outrage? And I’m still scrathing my head in those respects…the other tangle of complexities for the more obscure and interwoven causes of pollution, region of origin and region of impacts…as to solutions and costs, the uproar is slightly more justifiable, but I remember the outlines of these complex discussions going back decades…even though it wasn’t my area of concentration…so I hope that clarifies it a bit…maybe by re-stating it this way you’ll get an inspired flash to help us separate the faux complaints – and things that could be solved now – from what looks to me to be some of the more obscure tangles that EPA knows will be at the far end of the curve…

  4. bill wolfe
    September 7th, 2011 at 18:16 | #4

    @Bill Neil
    Bill – yes, it is tough to tease out the spin from the substance.

    But let me offer two recent examples of how states must ratchet down on pollution sources to meet the ambient NAAQS”

    1) In an obvious attempt to soften the blow of killing the ozone standard and provide cover for Lisa Jackson, Jeff Tittel of Sierra issued a press release that applauds EPA’s recently (July) adopted “Cross State Air Pollution Rule”: – see:

    If you read the EPA fact sheet on that rule,it touts HUGE health benefits and compliance costs for pollution control upgrades at coal power plants. see: http://www.epa.gov/airtransport/

    But this rule was based on the 15 year old 1997 ozone standard of 84 ppb. Even Bush realized he need to reduce that to 75 ppb.

    So, I see at least 2 huge implications:

    first, the emissions reductions required to meet the proposed EPA standard would have been far, far greater (with higher benefits and costs);

    Second, Jackson is a total hypocrite – she based the rule on an outdated 1997 ozone standard that she publicly condemned as not “legally and scientifically defensible”.

    But why is Sierra Club praising this rule? Especially in light of Obama’s kill of the tougher standard?

    Actually, it was Jackson’s decision to “reconsider” the Bush 2008 ozone standard that provide industry and Cass Sunstein their best arguments to kill EPA’s recent proposals. The Clean Air Act mandates 5 year period to reconsider NAAQS. Given the Bush 2008 standard, that would be 2013. By jumping the shark on the timing under the Act, Jackson fucked up.

    2) To met the new standard, states must ratchet down on NOx and VOCs.

    VOC emissions are split about half solvents (industry and consumer products) and half vehicles.

    Nox are predominately combustion sources and vehicles.

    Here’s recent examples of how NJ DEP got blasted for ozone attainment ratchet down:

    oil refinery tanks


    lower sulfur fuels:


  1. November 8th, 2011 at 10:50 | #1
  2. August 4th, 2012 at 08:15 | #2
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