'Time for Congress to Step in' to Address EPA Ozone Standards, Thune Says

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Sen. John Thune (R-S.D.) told Bloomberg BNA reporter Patrick Ambrosio why the Environmental Protection Agency should not issue more stringent ozone air quality standards this year.

Thune, during a phone interview, discussed possible vehicles for moving a bill that would bar the EPA from setting more stringent ozone standards until 85 percent of areas can meet the current 75 parts per billion standards. The bill, the Clean Air, Strong Economies Act (S. 751, H.R. 1388), also would require the EPA to consider feasibility and cost when deciding at what level to set the ozone standards, which the agency does not do.

The EPA has a court-ordered deadline of Oct. 1 to issue a decision on revising or retaining the current national ambient air quality standards for ozone of 75 ppb. The agency in 2014 proposed to revise both the primary health-based and secondary welfare-based standards in the range of 65 ppb to 70 ppb. The proposal drew more than 350,000 comments from state environmental agencies, which are concerned about implementing a stronger standard; industry groups, which would like to see the current standards implemented before new standards are set; and environmental and public health groups, which argue that even tougher health-based standards are needed to protect children with asthma and other vulnerable populations.

This is Part I of a six-part question-and-answer series on the ozone standards. The series will continue May 12 with an interview with an official in the EPA's Office of Air Quality Planning and Standards.

The interview has been edited for clarity and length.

Bloomberg BNA:

The CASE Act would block the EPA from issuing its final ozone rule as it is expected to this fall. Why do you think it isn't the right time for the EPA to complete its review and move ahead with that rule?

Sen. John Thune:

I just think it is just so far reaching. The reason we believe it is ill-advised right now is because there are so many counties in the country that have not yet complied with the 75 parts per billion standard that was set back in 2008. In fact, 40 percent of Americans live in the 227 counties that haven't met that standard yet. It is really premature to try and lower it even further. Frankly, this is a completely misaligned regulation when you look at the counties in a state like South Dakota that would be affected by this. What the bill basically does is say: 85 percent of these counties need to achieve compliance with the 75 ppb standard before the EPA can impose an even stricter regulation like the one they proposed last November. The president was going to do this in the run-up to his reelection, and he withdrew this for obvious reasons: He knew it would be very unpopular. We just think EPA needs to focus its efforts on the areas that are already struggling with attainment. Urban areas like L.A., where smog remains a consistent problem, not the open plains of South Dakota. The CASE Act would just require the EPA to get these counties in compliance and to consider the cost and feasibility of the lower standard, which they currently don't have to do.

'For Anything' That Would Delay Standards

Bloomberg BNA:

Your bill isn't the only bill that would delay the ozone standards. Senator Flake has a proposal (S. 640) that would just delay the rule until 2018. What benefit does your bill's approach--tying it to nonattainment areas meeting the standard--offer that simply delaying the rule does not?


I'm not saying the other approach doesn't make sense. I'm for anything that would kick it down the road with regard to states like South Dakota, but I do think the approach we're taking is a very reasonable one. That is, before you widen the net and try to capture a bunch of these areas in the country where you don't have smog problems whatsoever, let's work on getting the people who live in those 227 counties, at least get 85 percent of those in compliance with the existing standard. We think it is reasonable. It is not hard to argue that you have an existing standard out there that is not currently being met. Why would you come up with a more restrictive, much lower standard that is going to punish and penalize people in parts of the country for whom smog is not an issue? I think there are other ways of getting at this, and I'm all for it, but I think it is hard to argue with the logic behind what we're talking about doing in our bill.

Bloomberg BNA:

There are some critics of your bill. They say that approach would delay people in some areas of the country from getting the Clean Air Act protections that they deserve until more polluted areas like Los Angeles come into compliance. How do you respond to that type of criticism?


Certainly there are health benefits from reducing emissions, but I think that is all the more reason to prioritize the areas of nonattainment where you have the greatest smog problems. That's what our bill does. You're going to hit a lot of areas in the country that have naturally occurring levels of ozone. Places like Yellowstone National Park, which clearly doesn't have a smog problem. The 85 percent approach does clean up most areas in marginal nonattainment. If you get to that, you'll take care of a lot of the areas that I think some of the critics of our bill are complaining about. There are going to be some places where it is impossible to be in attainment simply because of the naturally occurring ozone. The ozone regulations ought to be focused on improving the air in the worst of areas. These places, like L.A., are yet to comply with the existing standard. All we're asking for is: apply a little bit of reason, balance and logic here. We've made great strides in cleaning up the air that we breathe and air pollution levels are at an all-time low historically, but you still have 40 percent of Americans that live in areas that haven't met the current ozone standards. So, lets get it right in these areas before we hamstring the economies of communities that just don't have an issue.

Appropriations Riders Possible

Bloomberg BNA:

You introduced the CASE Act last Congress and it didn't move. What is the outlook for the bill this year? Does having a concrete EPA proposal out there to point to help gain support and make it more pressing to move a bill this year?


I think it does. We continue to shop this issue. There are Democrats who are impacted by this and we're trying to build a bipartisan coalition on this. We will look for opportunities to offer it. We've looked at potential vehicles that will come across the floor where it might fit. Obviously appropriations bills would be an opportunity for riders, though those would only be one year in duration. There are some other things that we think could be a fitting place to have this discussion. Having a hard proposal out there does help. They're using real bullets now and I think that even though it's not final, there is certainly movement in that direction. I think that should create lots of alarms for people and raise a lot of red flags. Hopefully that will start getting people to focus on this issue and what we can do about it.

Bloomberg BNA:

You mentioned some economic reasons and some implementation reasons to keep the current standards in place. The Supreme Court has ruled that the Clean Air Act doesn't allow the EPA to consider cost and the agency doesn't consider feasibility of implementation before they set the standards. Do you think it's time for broader reforms to the Clean Air Act?


We do that [in the CASE Act]. We require the EPA to consider cost and feasibility, which they don't currently. I think that's one of the reforms that would be really important because I just think that without doing any kind of cost-benefit, you can come up with these ideas in the bubble in Washington, D.C., and have lots of unintended consequences across the country. It would be, I think, not only intuitive for most people, but a very constructive exercise for the EPA to actually go through some sort of cost-benefit analysis and take into consideration not only the intended consequences, but the unintended consequences and their economic impacts. I think that's an important reform, one that our bill includes. Given some of the court decisions on this, its probably time for Congress to step in and clarify some of these issues.

This is the first part of a six-part interview series on the EPA’s ozone standards. The other five interviews will be available for Bloomberg BNA subscribers at www.bna.com:

May 12: Erika Sasser, director of the Health and Environmental Impacts Division in the EPA's Office of Air Quality Planning and Standards

May 13: Tom Moore of the Western States Air Resources Council

May 13: Ali Mirzakhalili of the Delaware Department of Natural Resources and Environmental Control

May 14: Michael Walls and Lorraine Gershman of the American Chemistry Council

May 15: Georges Benjamin of the American Public Health Association

To contact the reporter on this story: Patrick Ambrosio at pambrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

Text of S. 751, the Clean Air, Strong Economies Act, is available at https://www.congress.gov/114/bills/s751/BILLS-114s751is.pdf.