EPA's New Soot Proposal: The Good News, A Reality Check, Some Hopes, and Some Fears

Today, the EPA announced its new proposed National Ambient Air Quality Standard (NAAQS) for fine particulate matter, commonly referred to as soot.   Soot is one of the most common air pollutants that Americans encounter, and it is extremely harmful to our health and the environment, contributing to premature death, heart attacks, and chronic lung disease. Today’s proposal is a significant step forward that will bring tremendous benefits for the public if and when it is finalized.

The proposal comprises two parts—an annual standard and a daily standard.  EPA is proposing to maintain the daily standard of 35 micrograms per cubic meter of air (hereafter “micrograms”), while lowering the annual standard from 15 micrograms to within the range of 12 to 13 micrograms.  Significantly, this proposal is consistent with the recommendation of the EPA’s scientists, which was endorsed by the Clean Air Science Advisory Committee (CASAC), a committee of leading independent air pollution experts established by the Clean Air Act to advise the agency on the science underlying Clean Air Act rules.

The EPA is to be commended for issuing a soot NAAQS proposal that is supported by the law and science.  Under the Clean Air Act, the agency must set the soot NAAQS at a level that is protective of human health with an adequate margin of safety. Congress intended this standard to protect the most vulnerable members of our society, including children, the elderly, and the chronically ill, and, as the US Supreme Court has recognized, this standard explicitly forbids the consideration of any regulatory costs.   The Clean Air Act further directs the agency to review the underlying science for the standard at least once every five years; if the science shows that the existing standard is not protecting human health with an adequate margin of safety, the agency must set a stronger standard that meets this health-protective goal.

In 2006, the last time the EPA went through this process, the agency did not follow the law and the science.  At that time, CASAC recommended that the agency reduce the annual standard from 15 micrograms to either 13 or 14 micrograms.  (The 15 micrograms standard was set in 1997, and is based on science more than 15 years old.)  In an unprecedented step, the EPA rejected CASAC’s advice and maintained the old standard.  The rule was later challenged, and the US Court of Appeals for DC struck it down, finding that the EPA had not adequately explained its justification for ignoring the clear scientific evidence that a 15-micrograms standard was not protective of human health.  The Court kept the standard in place, but directed the EPA to develop a new rule that was supported by the scientific evidence.

Compared to the 2006 proposal, today’s proposal is clearly a win for public health and the environment, and it comes at a time when such wins have been hard to come by. But more needs to be said about this development.

First, a reality check.  This proposal is long overdue.  On one level, this proposal is one year late.  Since the Clean Air Act tells the EPA to review and update NAAQS as necessary every five years, and since the last review took place in 2006, the EPA should have finalized a new soot NAAQS by 2011.  Instead, it is just now getting around to the proposal.  More accurately, though, a proper review of the soot NAAQS hasn’t taken place since 1997.  That means this scientifically defensible review is more than 10 years late.  (We can never know for sure now, but perhaps we could have been enjoying a daily standard for soot of 13 micrograms that entire time, which potentially could have saved tens of thousands of lives.)

Second, my hope.  The Obama Administration did not want to issue this proposal before the November election.  It fought very strongly in court to have this proposal delayed until 2013.  The Administration lost this battle, and its hand has been forced.  My hope is that President Obama makes the best of this opportunity—namely, by communicating to the public the value of an active government working to protect people from those threats against which they cannot protect themselves adequately.  A strong soot NAAQS provides the perfect medium for conveying this message.  Once fully implemented, the rule would reduce premature deaths, heart attacks, and cases of chronic lung disease. Rather than harming the economy, the rule will likely spur new spending that will help jolt the economy back to life.  Further, it will likely inspire the retirement of outdated old technologies and the development of innovative new ones, laying the foundation for a productive and efficient economy for decades to come.

Third, my fear.  The EPA’s soot proposal brings to mind a similar proposal from a few years back.  In 2009, the agency proposed to strengthen another NAAQS—one for ozone—in line with the recommendations of its scientists and independent advisors.  As with the soot NAAQS, the Bush Administration ignored CASAC and issued ozone NAAQS that was not supported by law or the science, and eventually the rule was struck down.  Last September, in the 11^th hour before the EPA was supposed to finalize the stronger ozone NAAQS, the White House Office of Information and Regulatory Affairs (OIRA) intervened.  Under strong pressure from the business community, OIRA scrapped the ozone rule, citing concerns that it would harm the economy.  (Recall that the EPA is prohibited from considering costs when setting NAAQS.)

My fear is that an identical scenario could play out with the EPA’s soot NAAQS.  As they did with the ozone NAAQS, big polluters will launch a full-scale, no-holds-barred attack on the soot proposal, and they will do this against the backdrop of Obama’s reelection campaign.  The stronger soot NAAQS has not crossed the finish line yet (EPA says it will issue final standards by December 14).  And, given OIRA’s unrelenting record of anti-regulatory zeal during the Obama Administration, I fear OIRA will interfere again.  In the months to come, the environmental community will need to hold the president’s feet to the fire on the soot NAAQS, or it might find itself the victim of yet another last minute surprise. Let’s hope not.