Pruitt’s EPA disregards the science behind the Clean Air Act

In the name of “cooperative federalism,” Environmental Protection Agency Administrator Scott Pruitt is out to gut one of the finest examples of cooperative federalism in environmental law — that of setting outdoor air pollutant standards. The basic approach was worked out almost a half-century ago in the 1970 U.S. Clean Air Act, with minimal amendments since. It calls for the setting of uniform national outdoor standards for some of the worst pollutants, solely based upon the protection of public health with an adequate margin of safety.

These federal standards are necessary to avoid a “race to the bottom” in which states compete to attract industry through providing the weakest health-based standards. Each national standard is reviewed every five years, beginning with an internal scientific compilation and evaluation of the relevant worldwide scientific literature. This and other EPA documents related to the standard are then intensely reviewed by the congressionally-mandated Clean Air Scientific Advisory Committee.

{mosads}CASAC recommends whether the standard should be revised or maintained. If the former, CASAC usually provides a range of numbers about which reasonable scientists might differ, often reminding the administrator that the least stringent number in this range contains no margin of safety. The administrator considers these recommendations, as well as public comments, in deciding upon the final standards.  

The Supreme Court, in Whitman v. American Trucking Associations, reaffirmed judicial interpretations that EPA can rely only on scientific information relevant to health effects in setting the primary, health-based standards, and not consider economic impacts, nor the health impact of job loss or other social or economic effects of meeting the standard. However, such impacts can be taken into account when the state chooses among options to meet a standard it has exceeded. State implementation plans describing how to achieve the standard require EPA approval, but it is the state that decides whether to, for example, address local industrial emissions or cut down on power plant emissions from upwind regions to meet the standard.  

Scientific judgment is an important part of the process. This includes understanding the intersection between exposure and human susceptibility. For example, a favorite industry argument against the ozone standard is that ozone is so reactive that it doesn’t penetrate indoors where people spend most of their time. But ozone is at its highest levels on warm summer days when children are outdoors engaged in active play. Exercise increases breathing rate and depth — and children’s growing lungs are particularly sensitive to the short- and long-term effects of ozone.  

Under EPA’s new guidance, CASAC will need to add expertise in economic analysis and in regulatory review as its purview has been expanded. Pruitt undoubtedly will appoint those most sympathetic to industry’s views. Despite their lack of expertise about the direct health impact of air pollutants, their votes on the appropriate level of the allowable standard will carry the same weight as the CASAC members with expertise in toxicology or epidemiology who have been the mainstay of the advisory process.

This new approach to setting primary air quality standards should be judged in conjunction with other major decisions about the incorporation of science into EPA. Pruitt has succeeded in greatly impairing the ability of EPA’s scientific processes, including drastic cuts in the agency’s research budget. He has altered how EPA chooses its advisory committee members in ways that greatly empower industry and industry consultants and lessen the likelihood that a knowledgeable and disinterested academic scientist would be selected. Pruitt’s recent institution of rules requiring the availability of raw data for studies used for regulatory purposes greatly limits the use of the coherent and replicated body of world science supporting air pollution standards.

I was the chair of CASAC early in the Reagan administration. A lawyer from the American Iron and Steel Association insisted that we discontinue one of our meetings, alleging EPA’s failure to appropriately give notice. But the American Petroleum Institute’s lawyer convinced the steel industry’s lawyer to withdraw his objection. He pointed out to his colleague that they wanted the decision made when Anne Gorsuch was EPA administrator.  

The game plan has not changed. Scott Pruitt’s changes are not aimed at improving cooperative federalism. They are aimed at devising a process allowing him to move up the setting of the fine particle standard and the accompanying regulatory analysis to just before the end of President Trump’s first term from its 2022 date. One wonders if the White House surmises that Pruitt is not confident in the president’s reelection.

But the biggest impediment to Pruitt’s plan is his dependence on a complacent scientific advisory process that will automatically kowtow to his desire to relax well-justified air pollution standards on behalf of his supporters. Perhaps he should not be so confident.

Bernard D. Goldstein, M.D., is a professor emeritus and dean emeritus at the University of Pittsburgh Graduate School of Public Health. He was chair of the EPA Clean Air Scientific Advisory Committee and the Environmental Protection Agency assistant administrator for research and development under President Reagan.