Attorneys general (AGs) from 16 states are asking both houses of Congress to reject legislation that would amend the Clean Air Act (CAA) by rolling back EPA’s authority to revise the National Ambient Air Quality Standards (NAAQS) for ozone.
According to the AGs, the proposals would delay critical health protections and more generally change the basis for EPA revisions to the NAAQS by requiring that nonhealth considerations be factored into any decision to issue revisions.
Five More Years to Attain
H.R. 806 and S. 263—titled the Ozone Standards Implementation Act of 2017 in both chambers—would delay by at least 5 years the obligation of states to submit state implementation plans (SIPs) showing how they will achieve EPA’s 2015 ozone NAAQS. The 2015 revisions lowered the primary ozone NAAQS from 75 parts per billion (ppb) to 70 ppb. Currently, SIPs are due by 2020 or 2021; under the bills, SIPs would be due by 2026. This proposed provision is intended to relieve states of the obligation to meet both the 2008 and the 2015 ozone NAAQS simultaneously.
The bills would also change EPA’s statutory obligation to review the NAAQs from every 5 years to every 10 years, although the EPA administrator would have the option of conducting a review and revising the NAAQS sooner. Other provisions would require the Agency to consider technological feasibility and cost when revising the NAAQS, thus amending the current CAA requirement that improvements to public health may be the only basis for a more stringent standard.
Scalia Cited
“The Clean Air Act mandates that EPA review the air quality standards for each criteria pollutant every five years and revise the standards as advances in science warrant,” write the AGs. “As Justice Scalia explained for a unanimous Supreme Court, EPA’s review must set the primary and secondary standards based on the scientific evidence, and may not consider implementation costs or other economic consequences (Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 465 (2001)).”
Cost, the AGs point out, is a matter for the states, which are empowered to evaluate the costs and cobenefits of potential implementation strategies and determine, in light of those costs and cobenefits, which strategies are most suitable for them.
Exceptional Events
The bills would also expand waivers from the NAAQS nonattainment designations because of exceptional events. Specifically, the definition of an “exceptional event” would be changed to include high temperatures or lack of precipitation. This “loophole” would “undermine the CAA’s existing protections,” write the AGs.
Moreover, the AGs say, the bills appear to be based on a misunderstanding of CAA’s balance between federal and state authority.
“The bill directs EPA to cherry-pick hypothetical state implementation strategies and only evaluate their adverse side-effects, and, potentially, use that evaluation to weaken ambient air quality standards,” the letters state. “But EPA cannot know at the time it sets standards what strategies states will choose, or how individual states will value their beneficial side-effects. Those considerations should remain separate from the standard-setting process.”
Implementation Guidance
Under the bills, the EPA would be required to provide the states with guidance on how to implement the NAAQS in a timely manner. The EPA did not issue implementation guidance for the 2008 NAAQS until 2015, one of the main reasons states are now facing the obligation of meeting the 2008 and 2015 NAAQS simultaneously. The AGs did not object to this provision in their letters.
The AG letters are here. The texts of the two bills are available here.