A remarkable confession and verdict in the world of pollution and politics happened quietly last month, noticed only by a few insiders.
The U.S. Environmental Protection Agency admitted, almost in passing, buried deep in an obscure document, that the former political head of EPA under the Bush administration had adopted health standards for soot pollution that agency staff believe now and believed then to be insupportable and illegitimate.
This much we knew already: in 2006, the Bush White House had pressured then-EPA Administrator Stephen Johnson to maintain unhealthy, unlawful soot standards dating to 1997 rather than upset the administration's industry supporters, who would have been required by stronger standards to cut soot pollution levels across the country.
We knew there was dissent [pdf] by EPA's outside science advisors and career agency scientists and officials over this suggestion, dissent that was ignored when Johnson signed a rulemaking that maintained [pdf] the unprotective standards in 2006.
A federal appellate court struck down [pdf] these standards in 2009, ruling unanimously that EPA had based them on arbitrary grounds. The judges found that Johnson had refused to follow an overwhelming scientific consensus and record that the standards needed strengthening to protect Americans against dangerous soot pollution levels.
What we lacked until now was a public admission by EPA that officials knew Johnson’s decision was based on illegitimate and unfounded reasons. That disclosure finally came in a document [pdf] that EPA issued when it adopted a rule strengthening national health standards for soot pollution in December 2012. (That rule is scheduled to be published in the Federal Register on January 15th.)
In the revealing December document, EPA officials responded to industry commenters that had urged the agency (again) to maintain the unprotective 1997 soot standard. These commenters actually had the nerve to rely on the Bush administration’s illegal 2006 standards to back their request.
Here is how EPA responded to those comments, with the explosive confession and indictment buried casually in the middle of this passage [pdf, II-43] (hat tip to my friends at the American Lung Association for alerting me to this):
In any case, the commenters’ reliance on the flawed 2006 review is badly misplaced. As discussed in section III.A.2 of the preamble to the final rule, the D.C. Circuit remanded Administrator Johnson’s 2006 decision to retain the primary annual PM2.5 standard because the Agency failed to adequately explain why the annual standard provided the requisite protection from both short- and long-term exposure to fine particles including protection for at-risk populations. The EPA, in fact, knows of no legitimate explanation. The 2006 standard was also at sharp odds with CASAC advice and recommendations as to the requisite level of protection (Henderson, 2006a,b). The judgment of the then-Administrator that the 2006 primary annual PM2.5 standard was requisite to protect public health with an adequate margin of safety is thus not precedential and is an inappropriate benchmark for the comparison drawn in the comments. [emphasis added]
As a former EPA attorney and long time agency watcher, I must say this is an extraordinary admission. EPA is confessing here that agency officials know of no legitimate explanation for why Johnson could have believed the 1997 soot standards adequately protected public health based on the scientific record before the agency at that time.
Indeed, adding insouciance to injury, the agency even disavows the illegitimate decision as an appropriate precedent for anything.
This is the closest you will see EPA come to outing raw politics – result-oriented dictates by political appointees – as the motivation behind one of its actions (here, an illegal action).
The carefully chosen word “legitimate” in this passage carries poignant significance. Of course there was an "explanation" for the Bush administration’s 2006 action – a purely political explanation that could not be lawfully, publicly advanced by the agency to justify Johnson's decision. That’s what led to EPA concocting far-fetched legalistic explanations that the court rightfully found [pdf] to be arbitrary.
Here’s one important piece of information you need to appreciate this passage’s significance: the same EPA career staff responsible for the just-issued, more protective 2012 soot standards were the same agency officials forced by the Bush administration in 2006 to maintain and rationalize the unprotective 1997 soot standards. So the absence of any “legitimate explanation” in 2012 dovetails with the absence of any legitimate explanation in 2006 as well.
Within the curious culture of EPA, and even from one administration to the next under different political parties, agency officials only rarely admit publicly that a prior decision rendered by a political appointee was so devoid of merit, so contradicted by the evidence before the agency, that it was actually an illegitimate decision.
Even when it’s clear to everyone else, EPA almost never cries out that the emperor has no clothes. This is strangely true even after the fact when the agency's decisions have been invalidated in court and subsequently reversed on the merits by a new administration, as here.
Perhaps this flows from some misguided notion that shielding the agency's dirty political secrets will somehow safeguard the agency's reputation. Or perhaps one political party fears the shoe being on the other foot in a future administration.
Whatever the explanation for this agency culture, it's refreshing to see the dirty political truth finally aired, even if it is over six years after the deed was done. Even if the truth is disclosed, not in a press release like one that heralded the original political decision, but in an obscure document [pdf] entitled "Responses to Significant Comments on the 2012 Proposed Rule on the National Ambient Air Quality Standards for Particulate Matter."
This is Washington, after all. We take the truth whenever and however we can get it.