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US EPA seeks information it says cannot legally be used to set air standards

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US EPA seeks information it says cannot legally be used to set air standards

The U.S. Environmental Protection Agency wants its science advisers to provide information on the economic and energy impacts of the National Ambient Air Quality Standards even though it cannot consider those impacts to determine if a standard should be modified.

In a brief memo issued May 10, EPA Administrator Scott Pruitt kicked off the next review of the National Ambient Air Quality Standards, or NAAQS, for ozone and particulate matter and announced a new "Back-to-Basics" approach to conducting reviews of critical air pollution standards. The EPA will now send a default list of questions to its Clean Air Scientific Advisory Committee, or CASAC, seeking information on the economic and energy impacts of a proposed new standard.

Sen. John Barrasso, R-Wyo.; Rep. Pete Olson, R-Texas; and former EPA Assistant Administrator for the Office of Air and Radiation Jeff Holmstead said the reforms were necessary and would allow the EPA to consider all relevant data and information when updating critical air quality standards.

Former EPA Deputy Administrator Marcus Peacock said the new guidance "better separate[s] scientific judgments from policy decisions." Holmstead, now a partner with Bracewell LLP, said policymakers must "understand the adverse public health, social, and economic effects of the actions that will be needed to meet inflexible air quality standards."

However, even the EPA concedes in the short 11-page memo that the administrator may not consider wider impacts of a NAAQS when determining whether an air quality standard should be changed. He or she may only consider the public health impacts when doing so given a unanimous 2001 U.S. Supreme Court decision in Whitman v. American Trucking. While many Clean Air Act provisions specifically call for a consideration of costs that is not the case for a NAAQS review, the court said. Thus, the EPA acknowledged in the memo, "were the EPA to consider costs of implementation when reviewing and revising the standards it would be grounds for vacating the NAAQS."

The Clean Air Act nevertheless allows the CASAC to "provide advice on such matters to the administrator," the memo continued. The EPA explained that its request to the CASAC "may not be directly relevant to EPA's process of setting primary and secondary standards that are requisite to protect public health and welfare." The Supreme Court stated that the CASAC's advice regarding the "adverse public health ... effects from various attainment strategies [are] unquestionably pertinent to the NAAQS rulemaking record and relevant to the standard-setting process," the EPA explained, quoting from the opinion.

Legal experts from a number of prominent environmental groups say Pruitt has "mischaracterized" the Supreme Court's decision. In a Twitter post, John Walke, who leads the Natural Resources Defense Council's clean-air advocacy work, said Pruitt wants to consider wider cost impacts in NAAQS reviews in an effort to weaken future air quality standards. Walke, who previously served as an attorney for the EPA's Office of General Counsel, said the memo adopts an argument from industry petitioners that was rebuked by the Supreme Court, and even adds words to the original decision to make it appear more favorable to Pruitt's goals.

Walke explained that industry groups tried to argue that the economic cost of meeting a stringent standard might in and of itself produce health losses through impacts such as unemployment. The Supreme Court, in an opinion penned by the late Antonin Scalia, rejected this argument, according to Walke.

Sierra Club Senior Attorney Josh Berman explained in a May 11 interview that the ultimate decision on any new air quality standard "is basically a policy consideration by the administrator." So while he must back up his decision based on public health information, Berman thinks Pruitt could say that in his judgment as administrator, the record supports a weaker standard. However, crafting that record to support that opinion, according to Berman, will be a challenge for the EPA.

Margaret Claiborne Campbell, a partner with Troutman Sanders who focuses on the Clean Air Act and state air quality statutes, concurs with the EPA's interpretation of the Supreme Court decision and the underlying Clean Air Act statute. Campbell said the statute specifically says that CASAC "shall advise" the EPA on "any adverse public health, welfare, social, economic or energy effects which may result from various strategies for attainment and maintenance." This statutory requirement has "fallen by the wayside" over the years, Campbell said. The EPA's memo simply reestablishes the CASAC's role in conducting NAAQS reviews, she said.

"Pruitt's memo ensures that consideration of these adverse effects will be part of the complete process," Campbell said.