Republican Senators Push 3 Bills to Weaken Clean Air Health Protections

The U.S. Senate Environment and Public Works Committee will hold a hearing today on three Republican bills bent on weakening basic Clean Air Act protections and making the air less safe to breathe. Each bill takes us backwards by forcing Americans to suffer unsafe levels of ground-level ozone, or smog pollution, for longer and at higher levels than allowed by today's law. I will briefly examine each bill here.

First, the Committee will consider the CASE Act, which abolishes the 45-year-old health foundation for the Clean Air Act and eliminates Americans' right to breathe safe air. Senators John Thune (R-SD) and Joe Manchin (D-WV) introduced this legislation last fall as a companion bill to Republican legislation originating in the House of Representatives.

This CASE Act would force the U.S. EPA to abandon the Clean Air Act's 45-year-old requirement to set national health standards for smog pollution based solely on what health and medical science shows to be unhealthy air quality. In trying to weaken the Clean Air Act so radically, the bill also resorts to overturning a unanimous Supreme Court decision. That ruling, authored by Justice Antonin Scalia, confirmed the Clean Air Act requires clean air health standards for Americans to be based exclusively on medical science, not impacts on corporate profits or other economic considerations. Moreover, the bill would compel EPA to delay updating health standards until certain urban, industrial parts of the country with particularly bad air pollution clean up, holding the rest of the country's health hostage to the severe air quality problems experienced in Los Angeles and Houston.

Here's how the legislation works:

Section 1: This section shuts down EPA's process for reviewing and updating national health standards for smog pollution until 85% of the country meets old, outdated standards that science has shown to be insufficient to protect Americans from unhealthy smog levels. This poison pill feature is not time-limited and shows no regard for the hundreds of millions of Americans forced to breathe unhealthy air because some urban areas and heavily industrialized areas have not yet achieved outdated standards.

Section 2: This section prevents EPA from enforcing smog pollution standards except in areas of the country where there are direct air pollution monitors. The twisted joke is revealed by the reality that Congressional Republicans have systematically worked to slash funding for the woefully sparse air pollution monitoring network maintained by EPA and the states. (subscription req'd). There simply are not enough monitors today--or funds available for new monitors--to directly monitor smog levels across the country. EPA, state and local officials long have relied on other proven techniques to model and assess smog levels in areas of the country lacking direct monitors. So the perverse result of the CASE Act would be to force clean air health standards to go unenforced in the majority of the country lacking monitors.

As such, section 2 works with section 1 to deliver a one-two punch to Americans. Not only does the bill dictate that all work stop on updating outdated air pollution standards (section 1), but it also thwarts the ability of states and EPA even to enforce those same outdated, unprotective smog standards (section 2). Making it that much more difficult (impossible?) to clear the legislation's own 85% hurdle. Circular obstruction of safe air for Americans.

Section 3: The extreme core of the CASE Act, this section eliminates the 45-year-old Clean Air Act requirement that EPA base clean air standards on health science and medicine alone in determining whether the air is safe to breathe. For over 40 years, the Clean Air Act has required air quality standards to be founded on science and the best medical understanding of air pollution's health hazards. Industry lobbyists and lawyers have been aiming for this heart of the Clean Air Act since at least 1996 and the CASE Act delivers the weapon.

Like earlier congressional attacks, this provision would force EPA to define acceptable air quality based in part on the "feasibility and cost" to polluting industries rather than what is healthy according to medical science. Clean air standards no longer would be based on what is necessary "to protect the public health," "allowing an adequate margin of safety" to protect the vulnerable, including children, the elderly and people with asthma. Instead, the CASE Act would institute a perverse scheme in which polluter compliance costs and profits dictate how clean air is defined, and how much air pollution is deemed acceptable to Americans. Under the Clean Air Act foundation that has been effective for 4 decades, compliance costs may not distort the medical decision over how much air pollution is unhealthy for Americans--but they can and do factor in to how best to reduce unhealthy air pollution levels using cost-effective measures.

Section 4: This section embodies a now-familiar political talking point and agenda of clean air opponents: that when considering the benefits of cutting smog pollutants, EPA should ignore any other types of air pollution that are reduced simultaneously by measures that reduce smog pollution.

There are only a finite number of ways to reduce air pollution and often--simply because of the chemistry of air pollution and available cleanup technologies--reducing smog also will reduce other air pollution. Sensible people would celebrate this. The CASE Act condemns this positive outcome. It is only logical and appropriate to calculate the total benefits for Americans from reducing all forms of air pollution that are necessarily reduced when controlling smog pollutants. But this section of the bill directs EPA to conduct a benefit-cost analysis pretending that the co-benefits from simultaneously reducing other forms of air pollution simply don't exist, even though they do. This is dishonest and ridiculous.

The second bill to be taken up by the Committee is the aptly named ORDEAL Act. It mimics the CASE Act by also attacks the timing and frequency of EPA's review of national air quality health standards for smog pollution.

First, the bill delays any updated health standard for smog pollution until at least 2018, a full decade later than safer standards are due under current law. EPA's current proposal to update ozone standards projects that stronger standards can avoid up to 4,300 deaths and up to 960,000 childhood asthma attacks in 2025 alone, with similar health gains in subsequent years. This means that the legislation's proposed delay from 2015 to 2018 would mean many thousands more avoidable deaths and hundreds of thousands more avoidable asthma attacks in the intervening years.

Next, the legislation would force a delay in the review and updating of all clean air health standards (not just smog) from 5 years to 10 years. It takes a brief historic explanation to appreciate how much more pernicious this proposed change is than it appears on its face. In practice, EPA's review and revisions for clean air health standards invariably exceed the 5-year statutory deadline. Recent history shows that health standards have been reviewed and revised in 9 years (in the case of 2006 PM2.5 standards), or 11 years (in the case of the 2008 ozone standards), or 14 years (in the case of 2010 SO2 standards). These extended delays occurred despite a Clean Air Act 5-year deadline.

For the ORDEAL sponsors, these extended delays are not long enough and the statutory violations are not good enough. Because it takes a 5-year deadline today to get health standards reviewed every 9 to 14 years, what the legislations's backers really want is to delay the review and revision of clean air health standards well beyond the 9 to 14 year periods that already are occurring in practice with a 5-year deadline. 9 to 14 years is too soon for ORDEAL Act supporters. So they want to change the statutory deadline to 10 years to guarantee even longer delays in safer health standards for Americans. We know with certainty from recent health standard reviews, however, that additional studies and updated science show increasing hazards from air pollution at lower levels of harm than previously understood. The ORDEAL Act sponsors want to prohibit EPA from taking into account that updated science; they want to deny Americans the benefit of safer health standards for far longer than current law allows.

Finally, the CLEER Act targets the Clean Air Act's approach to dealing with violations of health standards for air pollution caused by so-called "exceptional events."

Exceptional events mean air pollution activities that violate air quality health standards and still receive unique treatment under the Clean Air Act, by being excluded for purposes of compliance with air quality standards. The Clean Air Act's legislative history cites "forest fires" and "volcanic eruptions" as examples of exceptional events, focusing upon natural occurrences. It's critical to remember that every time an exceptional event is affirmed, properly and improperly, a proven violation of a health-based clean air standard at an air pollution monitor may be ignored and not counted toward whether an area suffers from unhealthy air quality.

Under the prior administration, EPA adopted regulations to allow recurring industrial pollution and other non-natural events to violate clean air health standards and still qualify as exempt 'exceptional events.' NRDC challenged these regulations and a reviewing court said the Bush administration's interpretive loopholes have no legal force.

The CLEER Act attempts to codify this higher-polluting legacy by requiring automatic excusal of a health violation if EPA does not act on a state's exceptional events request within 90 days, even if the submission and excusal are entirely unjustified. It is especially reckless and cynical that this automatic excusal is in legislation sponsored by Senators whose political party in both chambers has consistently proposed deeper and deeper cuts to the EPA budget. These cuts make it more likely that EPA will have inadequate resources to implement and enforce all its legal responsibilities while still reviewing these submissions within 90 days. The bill sponsors seem all too happy for the result to be ignoring known health violations that have undergone zero analysis.

The bill further biases the outcome in favor of ignoring health violations by turning upside down the longstanding legal standards that recognize EPA expertise in carrying out the Clean Air Act. The bill hands that expert moniker over to the states and subjects EPA to an evidentiary standard that eliminates the deference that courts give EPA under the Clean Air Act and administrative law. This again biases outcomes in favor of ignoring known violations of health standards.

Perhaps the most hypocritical and cynical feature of the CLEER Act, however, is the double-standard surrounding review in court: EPA disapproval of an exceptional event may be appealed to a court, presumably by a state or corporation that was unhappy that a health violation was not excused. If EPA excuses a health violation and approves an exceptional event, however, the bill amazingly says such an approval may not be appealed to a court. So an ordinary citizen or public health group with incontrovertible evidence of industrial pollution and EPA lawbreaking when the agency excused a health violation, could not appeal that violation to a court. All because of the flagrant double standard in this bill.

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EPA proposed to strengthen the current health standards for smog pollution in December. We know the current standards need to be strengthened to follow the best medical and scientific evidence about what smog levels are unhealthy. We know the current standards are failing to protect all Americans, especially vulnerable populations like children, the elderly and asthmatics. We know that much safer smog standard have been endorsed by esteemed medical groups including the American Medical Association, the American Academy of Pediatrics, American Heart Association and American Lung Association. We know the primary opposition to safer smog standards is coming from Big Oil.

Rather than erecting roadblocks and weakening one of our nation's foremost health protections, Congress should let EPA do its job: follow the science, enforce the law, abide by Supreme Court rulings and safeguard Americans' health.

With all of these bill's weakening features, one can only marvel at the CASE Act's first sentence: to "improve the establishment of any lower ground-level ozone standards." (italics added).

Some polluting industries and politicians might consider weakening the Clean Air Act this severely to be an 'improvement.'

But for the rest of us, these bills mark a radical retreat from healthy air quality, basic honesty and a long-cherished right that makes our Clean Air Act the most successful air pollution law in the world because of its health foundation. Congress should keep it that way.