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Administration Drops Reconsideration Of Stricter Air Quality Standards for Ozone

Tuesday, September 6, 2011

The Obama administration is dropping plans to reconsider the air quality standards for ozone, an environmental rulemaking widely opposed by industry and targeted by congressional Republicans as an example of the administration's regulatory overreach.

President Obama said in a statement Sept. 2 that the White House does not want to increase regulatory burdens, particularly when the Environmental Protection Agency is working on a separate review of the ozone standards that is scheduled to be completed in 2013.

“Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered,” Obama said.

Observers say the move underscores the White House's commitment to easing regulatory burdens that could hurt job creation, particularly as the 2012 presidential election nears.

The decision also points the spotlight on EPA Administrator Lisa Jackson, who has been an advocate for tougher air quality standards.

Administration Says Rule Not Mandatory

The White House formally made a request to EPA to drop the rulemaking in a Sept. 2 letter from Cass R. Sunstein, head of the Office of Management and Budget's Office of Information and Regulatory Affairs.

Sunstein said that finalizing a new standard now “is not mandatory and could create needless uncertainty.”

A White House official said Sept. 2 that EPA agreed to the president's request.

EPA was in the process of reconsidering national ambient air quality standards set in 2008 during the Bush administration. Separately, the agency is reviewing ozone standards under the five-year review schedule that is set out in the Clean Air Act, and that review is scheduled to be completed in 2013.

Sunstein's letter pointed out that the 2013 review will be based on the latest scientific data, but the reconsideration of the Bush-era standards was based on data from 2006.

The rulemaking has been a high-profile one, and both industry and environmental groups have been lobbying the White House in recent weeks. In an unusual move, White House Chief of Staff William Daley sat in on separate meetings with business groups and environmental advocates Aug. 16 (162 DEN A-2, 8/22/11).

Under the Clean Air Act, EPA must set national ambient air quality standards for six criteria pollutants, including ozone. The standards require states to control sources of the pollutants, such as industrial facilities and vehicles, and areas that do not attain the standards must impose emissions controls to attain the standards.

Ground-level ozone is formed when volatile organic compounds and nitrogen oxides react in the presence of sunlight. Breathing ozone can trigger a variety of health problems, including chest pain, coughing, throat irritation, and congestion and can worsen bronchitis, emphysema, and asthma, according to EPA.

Sen. Thomas R. Carper (D-Del.) said he would hold a hearing of the Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety to question White House officials about the move to drop the rulemaking.

“This decision leaves me with more questions than answers,” Carper said in a statement.

Science Advisers Made Recommendations

EPA in 2008 set the ozone standards at 0.075 part per million, averaged over eight hours, which was less stringent than the range between 0.060 ppm and 0.070 ppm that was recommended by EPA's Clean Air Scientific Advisory Committee.

The Obama administration in 2010 proposed to revise the standards instead of defending them in court, and the agency's proposal would have set the primary standard in the range recommended by the advisers (75 Fed. Reg. 2,938; 4 DEN A-1, 1/8/10).

Despite delays, Rogene Henderson, past chairwoman of the advisory committee, told BNA “the process is working.”

“Obama's statement was really very supportive of the EPA's environmental work,” she said. “What he was saying is it was too confusing for business to have a standard coming out in ‘08 under [former EPA Administrator Stephen L. Johnson], another in 2011, and then another in 2013. To me, the process is working. I'm not too upset over it.”

The decision to drop the reconsideration of the 2008 standards leaves it unclear as to which standards will be enforced, and state regulators say they are looking to EPA to provide guidance on that issue. (See related story in this issue.)

Meanwhile, environmental advocates and industry officials are questioning whether the administration will back away from other costly air pollution rules. (See related story in this issue.)

Election Approaches

Obama's decision comes as policymakers in Washington discuss job-creation efforts with the 2012 presidential campaigns gearing up.

Clean Air Watch President Frank O'Donnell called Obama's decision “an act of political desperation and political cowardice.”

“The White House all along has been queasy about it,” O'Donnell told BNA. “The president is in re-election mode.”

Jeffrey Holmstead, a former EPA assistant administrator for air and radiation and an attorney at Bracewell & Giuliani, pointed out that Obama made the announcement personally, signaling that he is concerned about overregulation.

“Especially in light of all of the news about jobs and the slowdown of the economy, I'm not so surprised this was the decision,” Holmstead told BNA.

Robert Bessette, president of the Council of Industrial Boiler Owners, told BNA that he “would very much like to think that this is a true change in desires for the Obama EPA.” However, he said, “my cynical side says it's purely a political ploy to get Congress and people off of EPA's back.”

Potential Economic Impact Highlighted

House Majority Leader Eric Cantor (R-Va.) applauded Obama's move and said the ozone rule would have cost as much as $90 billion to implement.

“This is a step in the right direction,” Cantor said in a statement. “…With a stalled economy and millions of Americans out of work, we cannot afford any sort of costly regulation that would destroy jobs and hamstring growth.”

However, S.T. Karnick, director of research for the Heartland Institute, said the decision does not go far enough to reduce regulatory burden on industry.

“Unless the president begins to roll back the countless regulatory oversteps he has already taken, along with those his predecessors imposed, the monthly jobs reports will continue to look like the one we just got for August—zero net new jobs, widespread long-term unemployment, and further economic stagnation,” Karnick said in a statement.

Jackson in Spotlight

The White House's decision has led to speculation that Jackson may resign.

“I wouldn't be surprised if she resigned soon,” O'Donnell of Clean Air Watch said shortly after the Sept. 2 announcement. “She's clearly trying to be a team player. They've taken her job away.”

However, Holmstead said he does not think the announcement will affect Jackson's reputation.

“Her constituency knows she really pushed hard” for stricter ozone standards, Holmstead said. “I don't think it hurts her credibility with the environmental community.”

O'Donnell acknowledged Jackson “made it very clear she believed tougher standards are needed to protect public health and are demanded by the science.”

Jackson Issues Statement

Holmstead said Jackson's resignation has been mentioned as a possibility, but the fact that she issued a statement accepting the president's decision indicates she does not plan to step down, Holmstead said.

Specifically regarding ozone, Jackson's statement only said, “We will revisit the ozone standard, in compliance with the Clean Air Act.”

The rest of the statement highlighted other air rules EPA has promulgated under her watch, including the Cross-State Air Pollution Rule, which aims to cut the interstate transport of pollutants. EPA would not comment beyond Jackson's statement Sept. 2.

However, Janice Nolen, assistant vice president for policy and advocacy at the American Lung Association, told BNA the Obama administration has a “mixed record” on the environment.

In addition to the decision not to pursue more protective ozone standards immediately, the agency also has declined to set more protective air quality standards for carbon monoxide and has reconsidered rules requiring industrial boilers to control emissions of toxic air pollutants in the face of industry opposition, she said.

Nolen would not speculate on whether Jackson would resign. However, Jackson's son suffers from asthma, which can be aggravated by ozone exposure, and Nolen said Jackson “gets it like nobody else I've heard.”

By Jessica Coomes and Andrew Childers

 

The letter from OIRA Administrator Cass R. Sunstein to EPA Administrator Lisa Jackson is available at http://op.bna.com/env.nsf/r?Open=jsun-8lbkww.

 

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