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.