In the most outrageous environmental offense of the Obama administration, the president himself has intervened politically to block the Environmental Protection Agency from correcting an unprotective smog standard that the head of EPA recognizes to be scientifically and legally indefensible [pdf]. The president's own rationale for interference defies the Clean Air Act and a unanimous Supreme Court decision, elevating unlawful considerations above public health, science and the law.
The president’s intervention is compounded by grievous legal and factual errors. The president sided with Big Oil and other polluters based on their claims about regulatory burden, notwithstanding that compliance with stronger smog standards would not have been required until 2016 anyway, and stronger safeguards will save the country money too.
Siding with an unprotective smog standard adopted by the Bush administration under equally politicized circumstances, the president has condemned EPA and his Department of Justice to defend that Bush standard in court against lawsuits by the American Lung Association, NRDC, and a dozen states, including the president's own. After EPA Administrator Jackson has deemed that Bush standard to be “not legally defensible given the scientific evidence.” [pdf]
News coverage of the Friday Smog Massacre only scratched the surface of the deeper levels of capitulation, illegality and harmful consequences embodied in the president's action. All to serve political interests above the health of the American people, compliance with the law, and respect for scientific integrity.
I will plumb those deeper levels in a series of posts starting with this one.
A Brief History of Lengthy Delay and Lawbreaking
Public health standards protecting all Americans against dangerous ground-level ozone or smog pollution were last set in accordance with sound science and the Clean Air Act in 1997. Then-EPA Administrator Carol Browner adopted a health standard of 0.08 parts per million. In all too familiar EPA preference for laxity, regardless of political party, that number was rounded up to 0.084 parts per million or 84 parts per billion (ppb). That 84 ppb level remains the permissible concentration of smog pollution today that federal and state officials across the country are enforcing
Despite the Clean Air Act requirement that clean air standards be reviewed and revised every five years, the Bush administration delayed and failed to revise the 1997 ozone standards until March of 2008. Then-EPA Administrator Stephen Johnson disregarded the unanimous recommendations of EPA’s independent, expert science advisors that the 84 ppb standard be lowered to between 60 and 70 ppb in order to protect public health with an adequate safety margin. Instead Johnson set the standard well outside that range at 75 ppb [pdf].
After Johnson rejected the science advisors’ unanimous ozone advice, the advisors took the extraordinary step of writing a strong letter to him condemning [pdf] his weaker 75 ppb standard: “[T]he members of the CASAC Ozone Review Panel do not endorse the new primary ozone standard as being sufficiently protective of public health.”
Johnson’s reasons for refusing to follow the science and the advisors’ recommendations were a joke. His reasoning carried the same hallmarks of tortured excuse and silence in the face of contrary evidence that characterized another Bush EPA air quality standards decision. In 2006, Johnson disregarded the near-unanimous advice of these same expert advisors when he adopted similarly unprotective standards for soot pollution, or PM2.5. One month into the Obama administration, a federal court found [pdf] the Bush administration soot standards arbitrary and overturned them, sending them back to EPA to start over.
A Promise to Follow Science and the Law, and Protect Public Health
Administrator Jackson wished to avoid the same fate in court for the unlawful ozone standards issued by the Bush EPA. Lawsuits had been filed against these standards in 2008 by the American Lung Association, NRDC and other environmental groups and more than a dozen states and cities. Numerous industry groups challenged the Bush standards too, comically claiming them to be unlawfully stringent.
More importantly, speaking to the public health and welfare standards for ozone, Jackson indicated [pdf] that she wanted to “ensure that two of the nation’s most important air quality standards are clearly grounded in science, protect public health with an adequate margin of safety, and are sufficient to protect the environment.”
So in September 2009, she announced that EPA would reconsider the inadequate 2008 Bush ozone standards. Stating the obvious, she noted that “[t]he ozone standards set in 2008 were not as protective as recommended by EPA’s panel of science advisors, the Clean Air Scientific Advisory Committee.”
In January 2010, EPA proposed [pdf] to strengthen the Bush ozone standards to fall within the 60 to 70 ppb range recommended by the science advisors, and the agency solicited public comment.
It was widely rumored in Washington and believed in clean air circles that by the fall and early winter in 2010, Administrator Jackson wished to finalize ozone standards at the mid-point of the range recommended by EPA’s science advisors – 65 parts per billion.
Strengthening the ozone standard to this level would have avoided [pdf] approximately 8,000 premature deaths, and prevented 3,800 nonfatal heart attacks and 40,000 asthma attacks beyond the Bush standard, every year.
More Delays and a Breakthrough
In December 2010, however, Administrator Jackson announced that she would delay adoption of final standards until July 29, 2011. This marked the third delay in 5 months, following delays in August and October, 2010. Her stated reason [pdf] was that “additional advice from [EPA’s expert science advisors] may prove useful and important in evaluating the scientific and other information before her.”
Agency watchers assumed the real reason was the White House. Considering the unanimous and forceful recommendations from EPA’s science advisors and staff scientists, what more could be gained from double-checking with those advisors? To confirm that they really meant it?
The only plausible explanation was that Jackson had faced opposition from the White House political machinery and she was looking to the independent science advisors to re-emphasize the even greater need in 2011 for stronger standards. Perhaps they might even indicate that protections at the lower end of their recommended range, at or below the 65 ppb level Jackson reportedly wished to adopt, would best protect the American people.
Industry representatives concluded the same thing about the political reasons for this third delay; their lobbying frenzy accelerated and targeted the White House even more feverishly.
Hastily re-convened, in March of this year the science advisors predictably reaffirmed their unanimous recommendations that the smog standard be set between 60 and 70 ppb, writing [pdf] that “the evidence is sufficiently certain to be confident of public health benefits and additional protection for susceptible groups.” Individual advisors supplemented that conclusion with observations of adverse health impacts at the lower end of that range, suggesting the advisability of a standard closer to 60 than 70.
In early summer information began circulating that the Administrator had settled on her number. Journalists began calling around in June asking what people knew about ozone meetings that reportedly were occurring between Jackson and White House chief of staff, Bill Daley. The journalists mentioned dark reports they were hearing about Jackson facing stiff opposition from the White House. The reporters did not know what number Jackson was discussing with Daley. But following the science advisor’s strong reaffirmation of their original recommendations, the strength of ozone science, and reports that she favored 65 in December, it was hard to imagine her going to the White House with a number weaker than 65 in June.
Through other channels outside the administration came reports of White House officials poring over maps to determine which areas of the country would be out of attainment with smog standards set at different levels. There were reported conversations involving White House officials already floating the idea of deferring correction of the unprotective, illegal Bush standard until 2013, while suggesting they would set the standard then at 60 ppb in line with ozone science that only had grown stronger since 2008 to show emphatic health hazards at that level.
One day I mentioned this Wimpy “gladly pay you Tuesday for a hamburger today” 60 ppb rumor to an EPA official. On the other end of the phone I heard what sounded like a barely suppressed fit of derisive laughter.
Nearing the Finish Line
What we do know happened next is that EPA transmitted its official, draft final ozone standards to the White House on July 11th, an event logged on a White House website. This immediately suggested the following to knowledgeable observers: there had been a breakthrough, likely a compromise, between EPA and the White House. EPA was being allowed to finalize more protective smog standards reflecting an agreement brokered between Jackson and the White House.
A particular feature of the Clean Air Act explains why that public transmittal to the White House was so laden with meaning. All proposed and final Clean Air Act rules transmitted to the White House Office of Management and Budget, and circulated for inter-agency review, must be made publicly available when the rule is finalized. In this way the public can see the before-and-after versions of clean air rules to clearly see any changes wrought by the White House or sister agencies, and reach their own conclusions as informed citizens about potential political interference.
This carries well-understood implications for the dynamic surrounding White House-EPA negotiations over clean air regulations. The surest way for any White House to interfere politically with clean air standards and block public awareness of that interference is to stop EPA from sending rulemaking packages to the White House. (That, for example, is why there was the tragi-comic controversy during the George W. Bush administration in which White House officials frantically insisted that an EPA official rescind an email that had transmitted EPA’s finding that greenhouse gas pollution endangers the public welfare.)
Once EPA does transmit a rulemaking package to the White House, both parties therefore understand this means EPA’s preferred standards will become a matter of public knowledge. (Cue the sinister background music and get ready for a foreshadowed plot twist in my next post.)
Based on this July 11th transmittal, clean air advocates reached the same conclusion that industry lobbyists did across Washington: the White House and EPA had agreed to finalize stronger smog safeguards.
Not long thereafter, in late July and August, rumors began circulating that the EPA package contained a standard of 70 ppb, to the point that reporters began calling seeking reaction to that number and asking how the White House had forced Jackson to retreat from 65. But it remains unknown how or even if the smog standard weakened from 65 to 70 from December to July.
As plaintiffs to the ozone lawsuit over the Bush standard, I think we got a phone call from EPA the morning of July 26th, 3 days before the July 29th deadline by which EPA had last said it would finalize ozone standards. EPA was going to announce that it would miss this deadline too – the fourth missed deadline since August 2010.
The notice of this latest delay reads almost pathetically in the aftermath of the Friday Smog Massacre: “We look forward to finalizing this standard shortly. A new ozone standard will be based on the best science and meet the obligation established under the Clean Air Act to protect the health of the American people. In implementing this new standard, EPA will use the long-standing flexibility in the Clean Air Act to consider costs, jobs and the economy.”
Despite this latest delay, however, administration officials still were saying the right things publicly about their intention to issue strengthened standards, recognizing the law’s prohibition on cost considerations when setting scientifically grounded clean air standards. In late July, White House officials were vowing they would promote flexible, cost-effective measures to implement new smog standards, as the law allows, while establishing "smart standards that are based on science and the law,” not economics, as the law requires.
So much for promises.
During this entire period, of course, industry lobbyists were jumping into over-drive lobbying the White House with openly illegal arguments and threats to the president’s re-election. I have dealt with that lobbying spectacle (here, here and here) but I’m too revolted by the lobbyists’ immoral triumph to spend any more time on the despicable details.
Cut Off at the Knees
Shortly after 9:00 on the morning of the Friday Smog Massacre, September 2nd, White House Chief of Staff Bill Daley telephoned the heads of some public health and environmental groups to deliver the shocking news: the president was scuttling protective smog standards in favor of Bush standards that Administrator Jackson deems legally indefensible and unsafe.
The environmental groups had been invited to the White House for a 10:00 meeting whose agenda revealed nothing of the coming disaster. The last minute phone calls ensured that White House officials would not have to announce the bad news in person to an unsuspecting audience, just one that had been blindsided in transit to the meeting.
The presidential statement and OMB letter were all tidied up by then and readied for release to the press by 10:00, just as the meeting began.
Not EPA’s statement. The agency was left behind in a wake of political pathos, gasping, and managing only to issue the same presidential statement shortly after the White House already had done so. An administration official confirmed that the White House had informed EPA officials only the day before. The agency had no statement of its own prepared (or at least none yet approved for release by the White House).
By 10:15 am, the evil wizards at the Chamber of Commerce and American Petroleum Institute probably had popped the corks already for Voldemort cocktails of champagne and unicorn's blood.
EPA released its own statement after 11:30. It is a textbook example of suppressed anger and resignation delivered through pursed lips. It does not mention the ozone standards until the final curt sentence of a three-sentence statement: “We will revisit the ozone standard, in compliance with the Clean Air Act.”
I choose to read meaning into this sentence that Administrator Jackson surely did not intend. The words to me convey the plaintive reality that this political capitulation, this presidential directive to EPA to uphold legally indefensible smog standards, was not an act “in compliance with the Clean Air Act.” Those quaint words linger at the close of the statement like a rebuke. Only in “revisiting” the ozone standards according to the president’s political timetable can EPA hope to one day comply with the law.
The White House had resorted to the same act of bury-the-story political cowardice that the Bush administration perfected when announcing anti-environmental decisions on the Friday of a holiday weekend. The White House was justifiably embarrassed by the announcement because the capitulation was humiliating and irresponsible.
News outlets soon reported that in a telephone news conference White House officials, hiding behind anonymity, “repeatedly denied that politics played a role in the decision.”
"This is not a product of industry pressure but a judgment of the merits of the rule," said one senior administration official, who spoke on condition of anonymity. "It has nothing to do with politics, nothing at all."
This is abject nonsense.
There is not a single word, not the slightest intimation, in the presidential statement or the accompanying apologia from OMB that the White House sabotage was a “judgment of the merits of the rule.” (I will examine the excuses in the presidential statement and OMB letter in a follow-up post.)
The merits of that rule concerned whether the 2008 Bush ozone standards were consistent with the Clean Air Act’s requirement to set air quality standards that are “requisite to protect the public health,” “allowing an adequate margin of safety.” [§ 7409(b)(1).] Legislative history further requires ‘‘the maximum permissible ambient air level. . . which will protect the health of any [sensitive] group of the population,” such as children, the elderly and asthmatics.
When proposing [pdf] in January 2010 to correct and strengthen the flawed Bush standards, Administrator Jackson described the substance of the rulemaking as a proposal by EPA “to set different [air quality] standards than those set in 2008 to provide requisite protection of public health and welfare, respectively.”
Where did the president or OMB render judgment on the merits whether the Bush standards were legally and scientifically sufficient to protect public health? Whether the Bush standards provided an adequate margin of safety to sensitive groups like children?
And when the president orders the only government official authorized by the Clean Air Act to set air quality standards not to correct unprotective standards that she has publicly declared scientifically and legally indefensible; when he invokes a rationale for refusing to enforce the law that a unanimous Supreme Court has declared unlawful; when that rationale is the rhetoric and product of an intense industry lobbying campaign relying upon the same unlawful factors?
That has everything to do with politics.
The executive branch’s job is to carry out and enforce the law, not to decide that it’s more politically convenient to do so two years from now. Not to force the Justice Department to defend an illegal measure in court out of political preference. Not to consign the American people to the deadly pollution and unlawful safeguards that are the consequence of that political decision.
In the aftermath of the smog fiasco, representatives for the smog lobby churned the blood in the water and called the capitulation a “big first step” toward more hoped-for regulatory reversals. Lobbyists boasted about their “frequent contact with White House Chief of Staff William Daley.”
The first Huffington Post article reporting the president's cave had nearly 13,600 comments shortly after midnight on the day of the announcement. While not all condemned the president, most did. This was his progressive base. But these were also everyday Americans expressing disbelief, anger and disgust.
Gene Karpinski, president of the League of Conservation Voters and executive director of the progressive U.S. Public Interest Research Group for twenty-one years, told me this after the debacle: “[i]n my 30 plus years of environmental work in D.C. I have worked with Democratic presidents for 15.5 years, and I think this was the worst decision ever made by one of them.”
My prior blog posts make clear I have applauded the Obama administration’s many clean air accomplishments (e.g., here, here, here and here). I will testify in Congress this week in defense of some of these accomplishments. The administration’s clean air agenda has been its greatest success story at EPA. It will remain so.
The president and Administrator Jackson were right to herald the powerful legacy of life-saving clean air standards that EPA has finalized and proposed for adoption. Every year these health protections will save tens of thousands of lives, avoid hundreds of thousands of asthma attacks, and prevent millions of days that people otherwise would miss work or school due to respiratory illness.
That very strong legacy is just one of the things that what makes the disgraceful smog decision all the more stupefying and bitter.
By blocking a stronger smog standard, first at 65 ppb and then at 70 ppb, the president and White House officials have allowed the following health hazards [pdf] to occur every year until that standard eventually is strengthened and enforced: 4,300 to 8,000 premature deaths; 2,200 to 3,800 nonfatal heart attacks; and 23,000 to 40,000 asthma attacks.
That’s a legacy too.