An Extreme Congressional Attack on Americans' Right to Breathe Healthy Air

Some conservative members of the Senate and House of Representatives introduced legislation this week bent on abolishing the 44-year-old health foundation for the Clean Air Act and eliminating Americans’ right to breathe safe air. Senator John Thune (R-SD) co-sponsored the Senate bill with Minority Leader Mitch McConnell (R-KY) and others. Representatives Pete Olson (R-TX) and Bob Latta (R-OH) co-sponsored the House bill.

Both bills [pdf] would force the U.S. EPA to abandon the Clean Air Act’s 44-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. This requirement always has been the centerpiece of the Clean Air Act.

Instead, the bills compel EPA to establish unhealthy smog health standards if and when compliance costs for polluters and other non-health economic considerations are deemed to outweigh the benefits of affording healthy air to all Americans.  

In trying to weaken the Clean Air Act so radically, the legislation must resort to overturning a unanimous Supreme Court decision (authored by conservative Justice Antonin Scalia, no less) that 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.

Here’s how the legislation works:

Section 1: Right away the bill pulls no punches—it immediately 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process for reviewing and updating national health standards for smog pollution until 85% of the country meets old, outdated standards that science has shown to be insufficient to protect Americans from unhealthy smog levels.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 exhibits no concern for how long this period of polluter amnesty would last. Nor does it show any regard for the hundreds of millions of Americans forced to breathe unhealthy air before an artificial milestone happens.

What possible sense does it make to force millions of Americans across the country to breathe unhealthy air, because some urban areas and heavily industrialized areas (comprising that 85%) have not yet achieved outdated standards? That’s the thing about this poison pill—it doesn’t need to make sense, since its aim is obstructionism, not protection or responsibility.

Section 2: This section can perhaps best be described as an inside joke amongst the most strident congressional critics of EPA. The punchline is that Americans will get sicker at the bill’s expense.

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. 

In recognition of this reality, EPA and the states have long employed reliable air pollution modelling techniques and used other indicators (e.g., the presence of large industrial pollution sources) to help determine whether the air is unhealthy notwithstanding the absence of direct ambient monitors.

The bill exhibits no concern for whether there are sufficient numbers of direct monitors where all Americans live. (There are not, of course.) The bill provides no funding for additional monitors (of course). And the legislation shows no concern for the millions of Americans forced to breathe unhealthy air due to its creation of yet another artificial (and one should add, cynical) condition.

As such, section 2 works with section 1 to deliver a one-two punch to Americans’ lungs. 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.

Section 3: This section eliminates the 44-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. We’ve seen this extreme congressional attack before. Like earlier congressional attacks, this section of the legislation 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.

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. Economic considerations may not distort the medical decision over how much air pollution is unhealthy for Americans. Economics can and do factor in to how best to reduce unhealthy air pollution levels using cost-effective measures. So when implementing the law’s air pollution control programs, costs may be considered to ensure the most cost-effective, feasible measures are selected while still cleaning up air pollution to levels that medical science considers genuinely healthy.

Consider what this means: some members of Congress want to force EPA to lie to the American people about whether the air is safe to breathe. The legislation replaces truthfulness about the purpose and promise of the law—clean air for all Americans—with a deception that misrepresents the basic safety of the air we breathe. The Clean Air Act would become the Clean Air* Act, with the asterisk adding the qualifier that medical and scientific evidence had to be ignored because some future political appointees and economists decided polluting industries should not have to bear the cost of cleaning up their own pollution.

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 controls and measures that reduce smog. This continues the strain of deception that infuses the legislation.

There are only a finite number of ways to reduce air pollution and often—simply because of the chemistry of air pollution and available technologies—reducing smog also will reduce other air pollution. Sensible people would celebrate this.

It is only logical and appropriate, accordingly, to calculate the total benefits for Americans from reducing all forms of air pollution that are in fact reduced when controlling smog pollutants. Instead, 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.

When politicians decry accounting for other pollution reductions achieved by strengthened smog standards, what they really are attacking are the strong standards themselves. They realize that accurately and honestly accounting for the full benefits of all pollution reductions that actually occur will cause those benefits to outweigh the compliance costs for polluters. Indeed, this realization has so enraged and consumed some members of Congress in recent years that they actually have mounted sustained political attacks on that honest accounting

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EPA will propose revisions to the current health standards for smog pollution in December. But we already know the current standards need to be strengthened to follow the best medical and scientific evidence [pdf] 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.

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 the legislation's weakening features, one can only marvel at the bills’ first sentence [pdf]: 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, the 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.

About the Authors

John Walke

Director, Clean Air Project, Climate & Clean Air program

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