Clean Air and Dirty Science

On the Issues
In late March, the U.S. Court of Appeals for the D.C. Circuit rejected challenges to the Environmental Protection Agency's 1997 air quality standards. But the court's decision does not clear the path for EPA to implement its standard for ozone, because the agency is still responding to a 1999 court decision ordering the agency to consider ozone benefits in setting standards. EPA's proposed response to the 1999 court decision invites new legal challenges because it disregards the court's instructions, procedural safeguards for careful science, and EPA's own draft risk assessments.

Yogi Berra's wisdom—it ain't over 'til its over—has been trampled in the rush to conclude that the Environmental Protection Agency's 1997 air quality standards will be implemented just because a federal court has rejected a legal challenge. Press accounts suggest that the recent decision by the U.S. Court of Appeals for the D.C. Circuit clears the way for EPA to implement the standards. In fact, EPA is busy preparing a final response to a 1999 court decision that it erred in not considering health benefits in setting air quality standards for ozone. Its flawed response to that decision will preclude implementation of the ozone standard unless it pays much greater attention to due process and sound science.

Last November, based on scientific judgments that are incompatible with its own technical analyses and in violation of procedures to safeguard scientific judgment, EPA proposed to reissue Administrator Carol Browner's monumental 1997 national air quality standards for ozone.

EPA's disdain for careful science is not new—in 1999, a federal court blocked the 1997 ozone standards because they embodied essentially the same mistakes. But its actions illustrate vividly the persistent primacy of politics at EPA.

To show that careful science matters at EPA, Whitman will have to apply sound scientific procedures and methods even to politically unpopular problems, like estimating the health benefits of ozone, the problem underlying the 1999 court decision.

Ignoring the Evidence

EPA should acknowledge for the first time a draft report it prepared in 1997 estimating that its ozone standards would cause 696 skin cancers per year. (EPA has never made public that report, which is buried in a docket at the Office of Management and Budget.)

In accordance with its own procedures and in compliance with the Clean Air Act, EPA should ask its Clean Air Scientific Advisory Committee to review the scientific evidence of the benefits of ground level ozone. More generally, EPA should assess these benefits in the same detailed and systematic way it assesses the respiratory health benefits of more stringent standards.

In developing its 1997 air quality standards for ozone, EPA wrongly failed to consider all identifiable effects of ozone—including beneficial ones. This error prompted the U.S. Court of Appeals for the D.C. Circuit to block the standards in May 1999. EPA's recent proposed response to the court concludes that ozone benefits are too uncertain and too small to merit any modification to Browner's 1997 decision. Ozone near the ground, like ozone high in the stratosphere, reduces exposure to solar radiation, which causes skin cancers and cataracts.

EPA's proposed response does not mention a draft EPA risk assessment given to the Office of Management and Budget in 1997 that estimated that 696 nonmelanoma skin cancers per year would result from adoption of its ozone control standard. This assessment, which claims to be based on "well-established methods," has deficiencies that must be remedied, but it nevertheless permits rough estimates of other known health benefits of ozone. If these estimates have the same ratios to nonmelanoma skin cancers as reported in an earlier government study, the total annual number of additional melanoma cases, melanoma fatalities, and cataracts would range between 10, 3, and 1,800, respectively, and 46, 9, and 4,600.

Weighing the Risks

Setting a standard to protect public health when a pollutant has both beneficial and harmful effects is obviously tricky. The best approach, minimizing the net adverse health effects of ozone, requires an aggregate measure of different health effects, both good and bad. In the absence of such a measure, one can note only that EPA estimated that in major cities its standard would prevent tens of thousands of cases of temporary chest pain on deep inspiration, hundreds of thousands of temporary exposures of concern, and dozens of projected hospitalizations each year.

But the temporary nature of many of these respiratory health effects contrasts with the serious and lasting effects of some skin cancers and cataracts. Thus,

EPA's conclusion that the health benefits of ozone are essentially negligible is incompatible with its own analyses.

In developing its proposed response to the court, EPA also ignored procedural safeguards intended to protect the quality of its scientific judgments:

  • It did not seek any advice from its Clean Air Scientific Advisory Committee, although both the Clean Air Act and EPA's practices call for this committee to advise EPA.

  • It did not amend its criteria document to include an assessment of the health benefits of ozone. Yet the act requires that EPA's criteria "accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects." The appeals court also ruled that EPA must consider ozone benefits "in formulating air quality criteria."

Getting EPA to assess carefully the benefits of ozone is tough because the mere existence of such benefits is heretical to the environmentalist high priesthood. It views a careful assessment of the benefits of pollution as akin to asking Satan how many Christmas presents he has given to the needy.

A careful assessment of the benefits of ozone would go a long way toward restoring the credibility of EPA's risk assessments within the scientific community. It might also help to persuade the public that EPA's proposed regulation for ozone would, on balance, protect the public's health.

Randall Lutter is a resident scholar at AEI.

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