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Ozone Rules Weakened at Bush's Behest
By Juliet Eilperin
The Washington Post
Friday 14 March 2008
EPA scrambles to justify action.
The Environmental Protection Agency weakened one part of its new limits on
smog-forming ozone after an unusual last-minute intervention by President Bush,
according to documents released by the EPA.
EPA officials initially tried to set a lower seasonal limit on ozone to protect
wildlife, parks and farmland, as required under the law. While their proposal
was less restrictive than what the EPA's scientific advisers had proposed, Bush
overruled EPA officials and on Tuesday ordered the agency to increase the limit,
according to the documents.
"It is unprecedented and an unlawful act of political interference for
the president personally to override a decision that the Clean Air Act leaves
exclusively to EPA's expert scientific judgment," said John Walke, clean-air
director for the Natural Resources Defense Council.
The president's order prompted a scramble by administration officials to rewrite
the regulations to avoid a conflict with past EPA statements on the harm caused
by ozone.
Solicitor General Paul D. Clement warned administration officials late Tuesday
night that the rules contradicted the EPA's past submissions to the Supreme
Court, according to sources familiar with the conversation. As a consequence,
administration lawyers hustled to craft new legal justifications for the weakened
standard.
The dispute involved one of two distinct parts of the EPA's ozone restrictions:
the "public welfare" standard, which is designed to protect against
long-term harm from high ozone levels. The other part is known as the "public
health" standard, which sets a legal limit on how high ozone levels can
be at any one time. The two standards were set at the same level Wednesday,
but until Bush asked for a change, the EPA had planned to set the "public
welfare" standard at a lower level.
The documents, which were released by the EPA late Wednesday night, provided
insight into how White House officials helped shape the new air-quality rules
that, by law, are supposed to be decided by the EPA administrator.
The White House Office of Management and Budget (OMB) questioned in a March
6 memo to the EPA why the second standard was needed. EPA officials answered
in a letter that high ozone concentrations can cause "adverse effects on
agricultural crops, trees in managed and unmanaged forests, and vegetation species
growing in natural settings."
The preamble to the new regulations alluded to this tug of war, stating there
was a "robust discussion within the Administration of these same strengths
and weaknesses" in setting the secondary standard. The preamble went on
to say that the decision to make the two ozone limits identical "reflects
the view of the Administration as to the most appropriate secondary standard."
The effort to rewrite the language - on the day the agency faced a statutory
deadline - forced EPA Administrator Stephen L. Johnson to postpone at the last
moment a scheduled news conference to announce the new rules. It finally took
place at 6 p.m., five hours later than planned.
Under the Clean Air Act, the federal government must reexamine every five years
whether its ozone standards are adequate, and the rules that the EPA issued
Wednesday will help determine the nation's air quality for at least a decade.
Ozone, which is formed when pollutants such as nitrogen oxides and other chemical
compounds released by industry and motor vehicles are exposed to sunlight, is
linked to an array of heart and respiratory illnesses.
The EPA set the allowable amount of ozone in the air at 75 parts per billion,
a level stricter than the current limit but higher than what the scientific
advisers had recommended.
Carol M. Browner, who served as EPA administrator under President Bill Clinton,
also encountered objections from the OMB when she established new ozone standards
in 1997. In that instance, the president backed the EPA over White House budget
officials.
"We did not allow OMB to push us into a decision we were quite certain
was outside the boundaries of the law," Browner said in an interview. The
Clean Air Act, she added, creates "a moral and ethical commitment that
we're going to let the science tell us what to do."
Asked for a comment yesterday, EPA spokesman Timothy Lyons said the agency
had complied with the Clean Air Act. "The secondary standard we set is
fully supported by both the law and the record, and it is the most protective
eight-hour standard ever for ozone."
When asked about Clement's role, White House spokesman Tony Fratto said: "The
White House sought legal advice from the Justice Department and made its decision
based on that advice."
The EPA's documents suggest that senior officials and scientific advisers resisted
the White House's position. Last year, the agency's Clean Air Scientific Advisory
Committee wrote - using italics for emphasis - that it unanimously supported
the EPA staff's conclusion that "protection of managed agricultural crops
and natural terrestrial ecosystems requires a secondary [ozone standard] that
is substantially different from the primary ozone standard. . . ."
When the OMB's Susan E. Dudley urged the EPA to consider the effects of cutting
ozone further on "economic values and on personal comfort and well-being,"
the EPA's Marcus Peacock responded in a March 7 memo: "EPA is not aware
of any information that ozone has beneficial effects on economic values or on
personal comfort and well being."
Lisa Heinzerling, a Georgetown University law professor who specializes in
the Clean Air Act, said Dudley's letter to the EPA represents "a misunderstanding
of the statute, a misunderstanding of Supreme Court precedent and a misunderstanding
of the science as the expert agency understands it."
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