House Moves to Take Back Ozone Policymaking

Last Wednesday, the U.S. House of Representatives passed a long overdue bill to take back air quality policymaking from the most powerful and unaccountable government organization you’ve never heard of: the Clean Air Science Advisory Committee (CASAC).

Let me explain. Under the Clean Air Act, the U.S. Environmental Protection Agency (EPA) is required to set national air quality standards for ozone. This is a tricky task, however, because there is no threshold at which ozone stops being an irritant, even when reduced to background levels. The upshot is that there’s no obvious line to draw where there is zero impact; it’s a continuum.

We’re not talking about mortality here. The case for improving the ozone standard rests largely on clinical studies showing a slight decrease in lung function for healthy adults performing moderate to strenuous exercise for  hours while wearing masks that allow them to breathe nothing but air contaminated with ozone. This slight effect, moreover, is transient and reversible.

These studies suggest that ozone is an irritant for which there is no threshold below which it has zero impact on public health. And, at the same time, it’s notoriously expensive to achieve further reductions in ambient air concentrations of ozone. Given these realities, the sensible way to set ozone policy would be for the EPA — under control of the democratically-elected president — to render a discretionary choice about where to set ozone levels, based on sound risk-management considerations. This would allow reasonable decision-making and accountability.

Unfortunately, as a result of two consequential rulings by federal courts, that’s not what happens. The Clean Air Act mandates that the EPA set the ozone standard at a level “requisite” to protect public health with an “adequate margin of safety.” In a 2001 ruling, the U.S. Supreme Court interpreted this language to mean that the Congress forbade the agency from considering costs in establishing an ozone air quality rule. Then, in 2009, the U.S. Court of Appeals for the District of Columbia Circuit — the court that regularly reviews national ozone standards and similar regulations — further interpreted this statutory directive as requiring the EPA to follow recommendations provided by the Clean Air Science Advisory Committee (CASAC).

You’ve likely never heard of CASAC, which was established by Congress in 1977 to provide “independent” advice to the EPA on the setting of national standards for pollutants such as ozone. CASAC’s seven-member board is nominated annually, primarily from the ranks of epidemiologists and public health officials. And, thanks to the 2009 D.C. Circuit ruling, CASAC now wields tremendous power in regulatory matters. In establishing an ozone standard “requisite to protect public health,” the EPA is effectively bound by CASAC.

In 2014, CASAC recommended that the EPA lower the current ozone standard from 75 parts per billion to 70 parts per billion. As a result, the EPA was left with no room to maneuver, and, in 2015, the agency lowered the standard accordingly. The costs of achieving the new standard are astronomical. The EPA agency concedes that 100 percent of the controls needed to meet the standard in California do not yet exist. And almost 25 percent of the controls needed to meet the standard in the rest of the country similarly do not exist. The EPA estimates that these as yet undiscovered controls would cost $3 billion a year.

The House sought to remedy this illogical regulatory regime last Wednesday by passing the Ozone Standards Implementation Act, with a 234 to 177 vote. This worthy legislation would lend accountability to the ozone standard-setting process by phasing in new standards on a feasible schedule without having to rely on billions of dollars’ worth of controls that don’t yet exist. Moreover, the peoples’ representatives in Congress — rather than the unelected technocrats at CASAC — would hold the reins of nationwide, air quality policymaking. Such an arrangement comports much better with the ideals associated with the American political system.