New Congress Prepares to Take Away Your Right to Clean, Safe Air

The Republican majority in the U.S. House of Representatives is expected to vote soon on legislation that would take away Americans' longstanding right to clean, safe air based on health and medical science. The legislation is called the Regulatory Accountability Act of 2015, and it would force the Environmental Protection Agency to set unsafe health standards for air pollution, after factoring in cleanup costs to polluting industries.

The legislation marks an extreme departure from the health foundation of our federal Clean Air Act. Since its adoption in 1970, the Clean Air Act has required EPA to set national health standards for air pollution (like smog and soot) based solely on what health and medical science shows to be unhealthy air quality. Setting these health standards provides the very definition of "clean air," and it guarantees Americans the right to air that is safe to breathe.

The Regulatory Accountability Act would take away this right and eliminate the Clean Air Act's health centerpiece. The bill does so by directing that EPA shall consider cleanup costs by polluting industries when defining clean air and telling Americans whether the air is safe.

The legislation requires all federal agencies carrying out all federal rulemakings to consider costs to regulated corporations "notwithstanding any other law." Legislative drafters use this phrase when they want a law (here, the Regulatory Accountability Act) to take precedence and reign supreme over any other otherwise applicable law. So, embedded within the Regulatory Accountability Act is a radically sweeping alteration of scores of federal laws governing clean air and clean water, food safety, investor protections, civil rights and on and on. I doubt the legislation's co-sponsors even have a complete list of all the federal laws that their bill would supersede.

From the beginning, the Clean Air Act has required EPA to base clean air health standards exclusively on health and medical science. The Supreme Court upheld this requirement in a unanimous ruling authored by conservative Justice Antonin Scalia, siding with the Bush administration EPA. The Court wrote that EPA may not consider the compliance costs to polluting industries when deciding whether the air is safe to breathe. Clean, safe air means adopting health standards based on medical science, not politics or compliance costs or other non-health factors. Health standards must be strong enough to protect all Americans' health, with an adequate safety margin for vulnerable groups like children, the elderly and asthmatics. The Regulatory Accountability Act would overturn that Supreme Court decision and radically weaken our Clean Air Act.

While the Clean Air Act always has prohibited economic considerations from distorting 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 under the law. The law and Supreme Court make that clear. 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.

Accordingly, the Regulatory Accountability Act would not ensure that clean, safe air is achieved cost-effectively. The law does that today. Rather, the legislation would prevent adoption of safe air standards by requiring cleanup costs for industry to corrupt the scientific determination of when the air is safe to breathe.

The legislation thus would have the effect of forcing EPA to lie to the American people about whether the air is safe to breathe. The bill would replace 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.

When EPA does set so-called "health" standards by considering industry cleanup costs, the legislation then goes on to direct EPA to adopt the outcome that is the "least costly" for polluting industries--even if the health benefits to all Americans outweigh those industry costs. The benefits of clean air health standards routinely outweigh compliance costs to industry by five-to-one or ten-to-one or more, so this is not an academic possibility.

For example, EPA projects its health standards for fine soot pollution (PM2.5) will yield total health benefits to Americans up to $9.1 billion yearly, with up to $171 in health benefits for every $1 invested in pollution reduction. Those health benefits come from avoiding heart attacks, strokes and premature deaths; avoiding asthma attacks and clogged arteries; and letting people continue to go to work and school and lead healthier lives.

The Regulatory Accountability Act, however, would abandon those health benefits, letting polluters continue to impose all of those health hazards and associated costs on Americans, if a safe standard caused those polluting industries to face greater cleanup costs. The legislation includes a narrow exception to allow outcomes other than the "least costly" alternative, but the damage already has been done in replacing the Clean Air Act's exclusive health foundation with cost considerations that the Supreme Court ruled unlawful. The "notwithstanding any other law" language performs that dirty deed.

The Regulatory Accountability Act is more extreme than just this one Clean Air Act example shows. My NRDC colleague, Daniel Rosenberg, traces the origins of the "least costly" language to what is easily our most ineffectual federal environmental law, the Toxic Substances Control Act (TSCA):

The main reason that EPA has failed to regulate chemicals under TSCA is the provision requiring the agency to select the regulatory alternative that is the "least burdensome" on industry. ....

[I]n 1991 a federal court overturned EPA's ban on existing uses of asbestos [under TSCA]. The court held that EPA had not met the "least burdensome" test by conducting a thorough cost-benefit analysis of each of the potential regulatory options at the agency's disposal, and demonstrating that the one it chose was the least costly effective approach. As a result, products containing asbestos are still used in this country. And, in the 20 years since the court's decision in the asbestos case, EPA has not proposed to regulate another toxic chemical.

The Regulatory Accountability Act would inflict this legacy of failure and obstructed protections upon many more federal laws and safeguards.

* * * * *

EPA recently proposed to strengthen national health standards for smog pollution. Almost immediately, some Republicans in the House and Senate introduced legislation announcing a frontal assault on the Clean Air Act, eliminating the law's health foundation, forcing consideration of polluter costs and blocking safe smog standards. The Obama White House has vowed to veto similar dirty air legislation previously.

The Regulatory Accountability Act, with all its complexity and mind-numbing obstructions to enforcing federal laws, comes as more of a sneak attack on the Clean Air Act. It does not openly amend the law. It is not being considered by the congressional committees with jurisdiction over the law.

But it is important to realize that the Regulatory Accountability Act would weaken the Clean Air Act just as radically as any direct attack, repealing the law's 45 year-old health foundation and elevating corporate cleanup costs above Americans' health. Thankfully, the Obama White House also issued a veto threat against the Regulatory Accountability Act when it was last brought up in 2011.

If the incoming House majority resurrects this extreme legislation as one of its first orders of business, in a congressional session where they are vowing to govern responsibly, it will make clear more than all the rhetoric in the world where their priorities really lie.

About the Authors

John Walke

Director, Clean Air Project, Climate & Clean Air program

Join Us