EPA Reconsiders Weak and Illegal Bush Administration Smog Standards

Good news for clean air today. The Environmental Protection Agency announced that it is reconsidering the Bush administration's heavily criticized 2008 air quality standards for ground-level ozone pollution (smog).
This step followed a lawsuit and reconsideration petition filed by the Natural Resources Defense Council, American Lung Association and other environmental groups that had challenged the 2008 standards.

National ambient air quality standards are the linchpins of the Clean Air Act that define the line between safe and unsafe air quality, based upon the best scientific understanding. EPA sets primary standards to protect public health, and secondary welfare standards to protect things like visibility, crops, vegetation and buildings.

EPA's reconsideration will extend to the inadequate and unlawful public health and public welfare standards for ozone pollution set by the Bush administration. 

I expect EPA's December proposal of new standards to strengthen the smog public health standard to fall within the range unanimously recommended by EPA's expert Clean Air Scientific Advisory Committee, a range of 60 to 70 parts per billion (ppb). Former EPA Administrator Stephen Johnson had rejected that recommendation and the science supporting it in favor of a much weaker standard of 75 ppb.

I also expect the upcoming proposal to strengthen the public welfare standard to be in line with the CASAC recommendations. In an earlier post I discussed the unprecedented and tragi-comic interference by President Bush himself at the last minute to dictate that the public welfare standard for smog be left unchanged in defiance of the science and unanimous CASAC recommendations. 

EPA also announced today that any new smog standards would be finalized by August 31, 2010. While any delay in cleaner air standards is unfortunate, responsibility for this delay lies with former Administrator Johnson and the Bush administration, indeed the former President himself. Had they followed the science and the responsibility to protect the American people against harmful smog pollution, we already would have protective standards, and the states and EPA would be requiring the actual pollution cuts that will truly clear the air.

Even so, getting the smog standards right in August 2010 is better than living with unprotective and illegal standards for the next five years (or longer) while EPA undertakes its next required review cycle.

Today's announcement came in a filing by the Department of Justice with the U.S. Court of Appeals for the D.C. Circuit, where EPA explained its reconsideration based on "concerns" whether the Bush administration's smog standards "satisfy the requirements of the Clean Air Act." There's an example of legal and bureaucratic understatement for you.

When former Administrator Johnson trampled on science and ignored CASAC recommendations in adopting unlawfully weak soot standards in 2006, his transgressions were overturned in a unanimous court decision by the U.S. Court of Appeals for the D.C. Circuit. The court found the Bush administration's PM2.5 standards arbitrary and rejected them, ruling they were "in several respects, contrary to law and unsupported by adequately reasoned decisionmaking."

The same fate would have awaited the Bush administration's smog standards in court, since they suffered from the same arbitrariness and inadequately reasoned decisionmaking. That's what tends to happen when EPA ignores science in favor of political science.

Today's Department of Justice filing amounts to a declaration by the Obama administration that it is refusing to defend the Bush administration smog standards in court because it believes those standards to be illegal, scientifically invalid and unprotective of public health.

NRDC will participate in EPA's proposed rulemaking and submit comments urging Administrator Lisa Jackson to adopt smog standards that are truly protective of the American people, including our most vulnerable populations among children, the elderly and asthmatics.  Today's announcement bodes well for more good news for clean air in the future.