Citing a goal of “reducing regulatory burdens and regulatory uncertainty,” the Obama Administration on September 2 instructed the U.S. Environmental Protection Agency (“EPA”) to withdraw its proposal to strengthen national ambient air quality standards for ozone.  The surprise move was the first time President Obama explicitly and completely rejected an EPA regulation, creating a firestorm of criticism from environmentalists and key Democrats and praise from industry groups and Republicans. 

The Administration’s action stems from EPA reconsideration of the National Ambient Air Quality Standards (“NAAQS”) for ozone adopted by the Bush-Administration EPA in 2008.  Those regulations set the ozone NAAQS at 75 parts per billion (“ppb”), as compared with the then pre-existing level of 84 ppb.  Environmentalists were outraged by this decision, however, claiming that the level should have been set at 60-70 ppb.  They immediately challenged the ozone NAAQS in court, but when the Obama Administration EPA took office EPA announced that it intended to reconsider the ozone NAAQS.  The court granted EPA’s request to stay the appeals of the NAAQS pending reconsideration.  EPA then proposed a new NAAQS at the 60-70 ppb level.  The President’s action last week suspended that reconsideration process.

One of the key criticisms that industry leveled at EPA’s reconsideration of the ozone NAAQS was that it was based on the same scientific record on which the Bush Administration ozone standard had been based in 2008.  Yet EPA is required by the Clean Air Act to reexamine the science underlying its NAAQS every five years, a process which is underway and scheduled for completion in 2013.  Industry argued that it made no sense to reconsider the 2008 ozone NAAQS based on stale science, when a new ozone standard might be promulgated as soon as 2013 based on new science.

Ultimately, the possibility that EPA would promulgate a reconsidered ozone NAAQS this year, only to follow it with a new ozone NAAQS in 2013 based on newer science, is the main reason cited by the White House and OMB for overruling EPA’s reconsideration effort.  In a September 2 letter to EPA Administrator Lisa Jackson, White House regulatory czar Cass Sunstein, speaking on behalf of the President, noted that issuance of a new regulation in 2011 while a health review is pending would be problematic and not based on the most current science.  It also emphasizes EPA’s “strong and unprecedented steps” taken already to protect public health through ozone and other air regulation. 

Senate Environment and Public Works Chairwoman Barbara Boxer (D – Calif.), vowed to hold hearings to review the implications of Obama’s decision.  Boxer said she hoped environmental groups would successfully sue the Obama administration to reverse the ozone decision.  Republicans, meanwhile, including Energy and Commerce Chairman Fred Upton (R- Mich.), welcomed the ozone decision but called for more, including review of other pending air regulations like controversial boiler and cement standards.  Environmentalists called on the President to make good on his promise to maintain an “unwavering” commitment to environmental safeguards. 

Quickly following the Administration’s announcement, the American Lung Association promised to revive pending litigation to force new ozone standards.  WildEarth Guardians, likewise, promised to continue litigation in Arizona to enforce the 2008 Bush-era standards.  Sen. Jeff Sessions (R-Ala.), meanwhile, on Thursday announced plans to introduce legislation to codify President Obama’s ban in order to preclude new standards and prevent implementation of the Bush-era 75 ppb limit until at least 2013.  

In addition, President Obama’s September 8 speech before a joint session of Congress on jobs appeared to draw the line on further interventions into EPA air quality rulemakings.  According to the President, “But what we can’t do — what I will not do — is let this economic crisis be used as an excuse to wipe out the basic protections that Americans have counted on for decades….I reject the argument that says for the economy to grow, we have to roll back…rules that keep our kids from being exposed to mercury….”