The Revised Ozone Standard:
Simple math and simple constitutional law
21 Mar 2008 in Regulatory Science, Regulatory Policy
The Washington Post's environment reporter says EPA has weakened the national ambient air quality quality standard for ozone. Given that the standard is going down, what does she mean?
Post staff writer Juliet Eilperin recently published a Page One article asserting that carbon dioxide emissions need to be reduced to zero to effectively address global climate change. This was illustrated by a photo of air pollution in Beijing, suggesting that carbon dioxide causes haze. It doesn't, of course.
Eilperin was back a couple days later with a story on EPA's announcement that it is lowering the national ambient air quality standard for ozone from 0.080 to 0.075 parts per million (ppm). According to a new Page One story by Eilperin, lowering the standard makes it weaker.
This is backwards, of course. When air quality standards are lowered they are made more stringent. So what is going on?
Under the Clean Air Act, there are two parts of deciding where to set the ozone standard. The first is to collect and objectively analyze all of the scientific information. The second is to make a policy decision concerning what constitutes an "ample margin of safety." The first of these tasks should be a strictly scientific enterprise, but the second is inherently and unavoidably colored by policy judgment.
Eilperin reports that the president made this policy decision. This is said to be controversial because the president's policy judgment is different from the EPA staff (and possibly the EPA administrator).
Eilpertin quotes John Walke, an attorney working for the Natural Resource Defense Council -- an environmental advocacy group -- who says the president's action is illegal:
Let's deconstruct this claim.
First, whether in fact it is unprecedented for the president to decide a major issue delegated by Congress to the Executive branch is not at all clear. It is entirely possible that previous presidents have made these decisions. Records of presidential decisions are not readily accessible, and only a subset of such decisions would ever be noticed -- in particular, when the president decides not to follow the policy recommendations of an agency's staff, who of course have no authority under the law to make policy decisions. The last revision of the ozone standard occurred in 1997. Did President Clinton make that decision? The relevant records are not public, and in any case, they might not provide an answer.
Second, it is not obvious that the president's involvement in this decision is "unlawful." It is true that the Clean Air Act delegates decision-making authority to the EPA administrator. However, the Constitution vests the authority to execute the laws to the president. Agency heads, including Cabinet members, serve at the pleasure of the president and they can be fired for any reason at all. As a general rule, presidents of both parties tend not to be shy about exercising their constitutional prerogatives and giving direction to their subordinates.
Third, Walke's claim that the law leaves this decision "exclusively to EPA's expert scientific judgment" is simply false. If it were true, the law would not bother to mention the EPA administrator, a Senate-confirmed political appointee who serves at the pleasure of the president. That current EPA administrator Stephen Johnson holds a master's degree in a scientific field makes him different from his predecessors. However, scientific credentials are neither required nor characteristic of EPA administrator, most or all of whom were lawyers.
More importantly, there is no scientific procedure that can be followed to decide what constitutes an "ample margin of safety." Every scientist who has (or will) opine on this question, including members of EPA's Clean Air Science Advisory Committee, has provided (or will be providing) a personal policy judgment informed by whatever values animate him. These values could be scientific, technical, economic or religious. Thus, it is highly misleading to characterize the selection of the ozone standard as a "scientific" decision. However much science might inform it, the decision is ultimately grounded in a value judgment.
Walke and others clearly do not like this decision, and they probably do not really care if it was actually made by the EPA administrator or the president. Fortunately for them, there is a statutory procedure that Congress can follow to quickly render the decision null and void. That procedure is set forth in legislation called the Congressional Review Act of 1996. These procedures are described in detail in a Congressional Research Service report. Within 60 "days" (a somewhat convoluted legal term) after the text is submitted to Congress, both houses must approve a "resolution of disapproval" and send it to the president for signature. Quoting from CRS (which is easier to understand than the law):
These resolutions are exempt from the usual procedural interferences and delays that characterize Congress. In both houses, committees of jurisdiction cannot block them and they cannot be amended. In the Senate, they cannot be filbustered.
It is likely (but not certain) that the president would veto such a bill, but if the revised ozone standard is as terrible a decision as Walke and others say it is, then Congress should be able to easily override the president's veto. A simpler procedure might have been enacted that did not require the president's signature, but the Supreme Court ruled in 1983 (INS v. Chadha) that legislative vetoes are unconstitutional.
One final irony is worth noting. Walke's employer, the Natural Resources Defense Council, was a party to the litigation that set March 12, 2008, as the deadline for this decision. Had they chosen a date later in the year, such as perhaps October 12, and EPA had taken until then to issue the rule (a near certainty), then the time limits for a congressional vote of disapproval would not expire until 2009. A bill disapproving this rule would have been submitted to the next president.
