Recent studies suggest that smog-filled air kills more people and causes more breathing problems than previously thought, U.S. EPA scientists say in a new draft paper, but due to a procedural twist, the findings can't be taken into account as Administrator Lisa Jackson decides whether to set stricter limits than the George W. Bush administration chose in 2008.
The new research provides stronger evidence that short-term spikes in ground-level ozone can cause premature death, according to the 996-page scientific assessment, which was released late Friday. And on top of that, EPA scientists found evidence that long-term exposure could lead to more premature deaths -- a conclusion that was not reached when the agency last reviewed the state of smog science in 2006.
It is well-established that ozone can have health effects at the current limit of 84 parts per billion (ppb), which still has not been met in parts of the Northeast, much of Southern California and industrial cities such as Houston. According to the assessment, recent studies found a robust link between health effects and smog levels below either the current limit or the standard of 75 ppb that was selected by the last administration.
Environmental and public health groups said the most recent studies show why the Obama administration should move this summer to tighten the national limits on smog even further, as EPA originally proposed doing last year (Greenwire, Jan. 7, 2010).
When the last science assessment was reviewed in 2007, groups such as the American Lung Association were already calling for a standard of 60 ppb, at the bottom of the range recommended by agency scientists.
"The new evidence I've seen has only underscored that," said Janice Nolen, the group's director of national policy.
"If the Clean Air Act really means what it says, which is 'provide protection with a margin of safety,' then 60 [ppb] is the minimum," she said in an interview. "We look at these studies, and there's clear evidence of harm to healthy adults at 60 -- then, how are you providing protection for kids with asthma? For older people? For people with lung disease? The evidence is just piling up."
But while supporters of stricter smog limits say the new assessment bolsters the Obama administration's argument, a procedural quirk is stopping Jackson from taking the latest research into account.
EPA is rethinking the George W. Bush administration's controversial 2008 decision to choose a standard of 75 ppb -- higher than the range of 60 to 70 ppb recommended by the agency's scientific advisers. The law requires a reconsideration proceeding to use the same information that was available the first time around, as EPA has said throughout the process.
The agency was required to do a new science assessment as part of a scheduled review of the ozone standards. That five-year review cycle would not wrap up until 2013 at the earliest.
But as EPA has asked another round of questions to the agency's scientific advisers over the past few weeks, several of them have cited new research to explain why stricter smog rules are needed.
That drew criticism yesterday from the top Republicans on the House Energy and Commerce Committee and the Senate Environment and Public Works Committee.
In a letter to Jackson, House Energy and Commerce Chairman Fred Upton (R-Mich.) and Sen. James Inhofe (R-Okla.) accuse the agency of going against its promise not to take any advice that relies on new science. Upton and Inhofe, who have argued that tougher rules will stunt economic growth in areas that flunk the new smog limits, say the use of new research shows why EPA should wait.
"Does EPA still believe that it would be beneficial to issue a revised rule in July 2011," Upton and Inhofe wrote, "knowing that it will be based on an outdated record, and will not be based on as full and complete a review of the science as will occur in 2013?"
Rethinking the Bush-era standard while pressing ahead with the next review cycle has put EPA in an uncomfortable position, experts say.
Jackson has made a mantra of saying that she will follow the science. But in this case, because of the constraints of the Clean Air Act and the basic rules of administrative law, the science she must follow is almost five years old -- even though the newest research is also right before her eyes.
During a series of meetings over the past month, members of the Clean Air Scientific Advisory Committee (CASAC) have questioned why they were brought together again, considering that they are not supposed to look at new science.
Several have pointed to newer studies anyway, saying that the evidence of smog's health effects has become more convincing since the group was first gathered in 2006.
"I still fully agree with the advice provided by CASAC," wrote Lianne Sheppard, a biostatistics professor at the University of Washington, in her response to Jackson's most recent questions. "My opinion has been strengthened by the experience I have gained since 2008 through my continued involvement in air pollution and health research."
New findings, old debate
The idea of a lower smog standard has been met with opposition from industry groups and some members of Congress, who are worried about the potential cost of cleaning up the air.
Of the 675 counties that have ozone monitors right now, 160 would meet a standard of 70 ppb, down from more than 300 under the current standard, EPA said last year. About 15 would be able to comply with a standard of 60 ppb.
Economic growth would be slowed in many of the new "nonattainment" areas because companies would need to get construction permits to show that they would not make the smog worse, said Jeff Holmstead, who was air chief at EPA under George W. Bush but had left by the time the review of the smog standards had kicked into gear.
Holmstead said EPA could come up with an exception to consider new science if it felt compelled to do it, but he does not expect that to happen. Last year's proposal was "controversial enough," he said.
"With this new standard, you're looking at many areas of the country that have never had to deal with the ozone standards needing to think about this," said Holmstead, who is now an industry attorney at Bracewell & Giuliani LLP. "It causes big practical problems for the state and local governments, and it makes it much harder to attract businesses or grow businesses in those communities."
EPA's own estimates say that revising the standard to between 60 and 70 ppb would cost as much as $90 billion per year, though some industry groups have pegged the cost at more than 10 times higher. According to an analysis by the Manufacturers Alliance, the strictest smog limit suggested by agency scientists would cause 7.3 million jobs to be lost between now and 2020.
Depending on the standard chosen, the benefits of the new rules would total $13 billion to $100 billion per year, resulting from avoided deaths, illnesses, sick days and hospital visits, according to EPA's estimates.
After releasing a proposal to tighten the standards in January 2010, EPA said it would make the rules final last summer. That deadline was pushed back three times: first until October 2010, then to December 2010 and now until this July. Critics of the new rules are hoping that the agency will retreat entirely and hold off for another two years -- which would be after President Obama is up for re-election.
Some people -- both supporters and critics of the rules -- have suggested that the delays are politically motivated. Holmstead said he disagrees with those claims and thinks that the agency may just be trying to prevent the rule from imposing burdens on state and local governments, as well as businesses that would need new permits for their emissions.
"The EPA's relentless efforts to change the standard will send a devastating economic shockwave coast to coast, threatening every community with increased costs to industry, permitting delays, and restrictions on economic development," Upton said in December, after EPA delayed the rules for the third time. "Let's refocus our efforts on putting folks back to work."
Sooner or later
But the advice from EPA's scientific advisers was clear. Based on the last assessment in 2006, the Clean Air Scientific Advisory Committee sent a letter to Johnson in 2007 urging him to ratchet down the limits on ground-level ozone to between 60 and 70 parts per billion.
Johnson went outside that range, issuing the new standard of 75 ppb in 2008. It was the first time that EPA had chosen to set a standard outside the range that was advised by the science panel, and it was met with intense criticism from environmentalists.
They say people have waited long enough for standards that protect their health. Yesterday's letter from Inhofe and Upton was "a transparent attempt to throw a monkey wrench into EPA's gears," said Frank O'Donnell, president of the advocacy group Clean Air Watch.
"The evidence not only confirms what we already knew -- that ozone can make us sick -- but it also strengthens the case that ozone shortens peoples' lives," O'Donnell said, referring to the new science assessment.
The new suggestion that there is a link between premature death and long-term ozone exposure will likely be the subject of substantial scrutiny in the years ahead, said Dan Greenbaum, president of the nonprofit Health Effects Institute. If such a link exists, the estimated health benefits of clearing smog -- and the value placed on regulations that do it -- could increase substantially, he said.
Though industry groups are also still combing through EPA's new assessment, the short-term exposure studies used flawed methods and the evidence on long-term exposure appears too thin to be convincing, said Howard Feldman, director of regulatory and scientific affairs at the American Petroleum Institute.
It could be years before EPA turns the latest science assessment into policy recommendations. Right now, as the reconsideration proceeds, the agency may be avoiding a focus on the report to avoid "taking the wind out of the sails" for a final rule this summer, said Greenbaum, whose Boston-based institute was recently awarded $25 million to do air pollution research for EPA.
"In the reconsideration, they can't really cite any new studies or else they'd be challenged in court," Greenbaum said. And if there were an impression that new science could possibly lead the agency to issue a stricter standard in 2013 than it would in 2011, he added, "it could provide momentum for people to say, 'Why bother with the reconsideration?'"