Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Yesterday, in commenting on the court battle over EPA’s reconsideration of the ozone NAAQS, I said that I would be surprised if EPA doesn’t issue the new standard within six months. Oops. My bad. Today, President Obama directed EPA to give up on the reconsideration effort. It’s difficult not to be cynical about the White House decision. As much as I admire Cass Sunstein, his letter to EPA providing the basis for the White House decision is not persuasive. Basically, it makes two points. 

First, EPA has to review the NAAQS every five years. Since this cycle began in 2008, EPA would have to review any new standard in 2013. Therefore, why bother? Why not just wait until 2013? The problem with that argument is that the review of the NAAQS is extremely complicated and cumbersome. It’s always going to take much of the five-year cycle. Sunstein’s argument, pushed to its logical conclusion, could result in the NAAQS never being updated, because, by the time EPA is ready to act, it will be so near the time for the next review that the decision would always be deferred to the next round.

The second argument is that the Administration has implemented a number of major initiatives to improve air quality, many of which will reduce ozone in the atmosphere. That’s certainly true, but the real answer to that is, so what? Setting the NAAQS is not a regulatory action; it is merely EPA’s statement as to how high ozone concentrations can get before ozone poses a risk. Regulatory actions may follow from that, but they’re distinguishable. If some of the other actions EPA has taken will reduce ozone levels, that’s not a reason to stop the reconsideration process. In fact, that only suggests that additional regulatory actions necessary to comply with the standard won’t be as expensive as they might otherwise have been, because prior regulatory efforts will have already achieved part of the necessary reductions.

I may have been wrong about EPA’s issuance of a new ozone standard, but I’ll nonetheless go out on a limb and make another prediction – it won’t be long before the environmental petitioners return to the Court of Appeals and request that the Court order EPA not only to continue with the reconsideration process, but to issue a new standard asap. Alternatively, they can go back and simply revive their challenge to the Bush administration standard of 0.075 ppm. If they can get the court to conclude that a standard above 0.070 ppm (or even lower) is arbitrary and capricious, we may still see a lower standard. 

If I were really cynical, I might conclude that that is in fact the Administration’s hoped-for outcome. That way, they get the lower standard, but without the political heat, because they can blame it on the court.

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As I have previously noted, Cass Sunstein, now head of the Office of Information and Regulatory Affairs at OMB under Obama, has called the precautionary principle “deeply incoherent.” Why? Because, as Sunstein notes, “costly precautions inevitably create risks.”

I hope that Sunstein is as troubled as I am by the news, reported recently by Inside EPA, that Mathy Stanislaus, head of EPA’s Office of Solid Waste & Emergency Response, has said that implementing the precautionary principle is a key to EPA’s environmental justice efforts.

When Stanislaus says that “we can’t wait until we have all the conclusive interpretive science to make a decision,” I agree with him, but that’s not the precautionary principle, that’s just a willingness to regulate under uncertainty, which has been a bedrock of environmental law.

However, the precautionary principle is something different and much more insidious. It’s not “regulate in spite of uncertainty” – it’s “regulate because of uncertainty.” It seems to stem from an almost Luddite fear of new technology and, as Sunstein points out, a philosophical view that nature is good and man-made is bad.

Stanislaus is head of OSWER. Is he going to oppose use of new cleanup technologies based on nanotechnology, because the precautionary principle says that we don’t know that nanomaterials are safe?

Stanislaus wants to “operationalize the precautionary principle.” Be worried, be very worried.

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On Wednesday, EPA released a proposal to reduce the primary National Ambient Air Quality Standard for ground-level ozone from the 0.075 ppm standard set by the Bush administration in 2008 to a range of from 0.060-0.070 ppm. EPA also proposed to set a secondary standard intended to protect sensitive ecological areas, such as forests and parks.

As almost everyone knows, the 2008 standard was, to put it mildly, controversial from the start. The proposal today was based on recommendations made to EPA by its science advisors prior to the 2008 rulemaking. Following apparent intervention from the White House, then EPA Administrator Stephen Johnson set the primary standard above the scientific recommendation and declined to promulgate a secondary standard. Not surprisingly, a number of environmental organizations and public heath groups sued EPA over the failure to promulgate a new NAAQS consistent with the scientific recommendations.

Given that the Supreme Court already ruled, in Whitman v. American Trucking Associations, that EPA may not consider cost in setting NAAQS (and given the Bush EPA record before appellate courts), the 2008 standards always had “arbitrary and capricious” written all over them, so it’s no surprise that the Obama administration revisited the issue. Nonetheless, it is worth noting that, unlike most of EPA’s rules, the projected benefits of this rule may not even exceed the costs.  According to EPA, the benefits of the rule would range from $13B to $100B, while the costs are projected to range from $19B to $90B.  Not much of a net benefit, it seems to me.  (I'm still waiting for Cass Sunstein to ride to the rescue of cost-benefit analysis in this administration.)

EPA expects to finalize the rule by August 31. Then the rubber really hits the road – when states have to revise SIPs in order to meet the new standards.

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