USEPA: Hell-Bent on Over-Control

In the United States, we are repeatedly told that good science requires this or that regulation because this or that bad thing will happen otherwise.  We live in a world that depends on honest answers to good questions in order to keep itself from making serious mistakes.  Unfortunately, government is not an institution designed to ask all the right questions, and it often fails to give good or honest answers to the questions it does ask.  This is occurring more and more often in the environmental arena, where political and ideological goals are driving the misuse of science by the United States Environmental Protection Agency to churn out highly questionable new regulations.  For example, in the field of air pollution control, companies big and small are faced with some new requirements that will do little for the environment while shrinking the chances of business or job growth.

The USEPA has been preparing to issue new national ambient air quality standards (NAAQS) for ozone.  These may be the most expensive environmental rules ever issued.  Yet they are not needed, and they are ill-advised from a policy and program viewpoint.

According to the Clean Air Act, the EPA must periodically review and adjust ambient air quality standards in order to provide protection of public health and the environment, with an adequate safety margin.  Over the decades since its original passage in 1970, the Act has brought about beneficial reductions in ozone and other pollutant concentrations for which NAAQS exist.  The EPA administrator must adjust the standards in keeping with the best science on the subject, and the reviews are to take place every five years.  They are done in a staggered manner so that states can have staff attend to the need for new regulation in an orderly way and business can count on getting a certain amount of mileage from the their pollution control investments.

The EPA's willingness to take a very aggressive position in favor of public protection is admirable in a sense, but regulation based on bad science is destructive.  The Agency has been alarmist in air quality programs, to the point where over-control is rather clearly occurring.  The method for this over-control is to claim thousands of instances of death or disease prevented, yet there is little reliable solid scientific evidence of such a death toll actually being caused by air pollution.  The Agency cites reviews of disease and mortality that it correlates with a given pollutant instead of findings of actual causes of death or disease.  As Steve Milloy aptly says, show us the bodies.

The current administrator has departed from the bipartisan prior practice and instead revisited a NAAQS on ozone in less time than the law provides.  This is especially questionable since ozone air quality has greatly improved over the years, and the asserted bad health effects are dubious.  Prior administrators have generally relied upon the advice and findings of a Clean Air Scientific Advisory Committee (CASAC), which is an expert panel set up by law to provide unbiased scientific opinion on air standards and the health effects, if any, of air pollutants.

Administrator Lisa Jackson intends to go ahead and ratchet down the ozone standard fully two years before the next CASAC full review is due.  The stated need for a more stringent standard is that people's health is adversely affected, yet look at the facts on asthma, an ancient disease: ozone levels have declined 30% in the nation at the same time that asthma cases have increased threefold.  Dr. Roger O. McClellan, a former CASAC member, has stated that "there is no compelling reason based on the EPA CASACs advice that the Ozone NAAQS be set in the range of 60 to 70 ppb"  He also says that Administrator Jackson's decision to "reconsider" that [2008] decision "is without precedent and, if she proceeds, will set a terrible precedent for any future EPA Administrator to reconsider every rule of the previous administration. What a way to create havoc and send the economy in to a tail spin."  Senator James Inhofe of Oklahoma, ranking Republican on the Senate Environment and Public Works Committee, has accused the EPA of deliberately using flawed science, biased advisors, and a lack of serious objectivity in its critical reviews of data and evidence respecting the need for a tougher standard.

Other examples of EPA overcontrol with political motives include:

On Global Warming: Carbon dioxide (CO2) is a naturally created gas essential to life on the planet that occurs only in trace amounts atmospherically.  The EPA insists that CO2 causes and threatens serious warming of the climate.  Recent research shows that the alarm is based on a number of doubtful ideas, including flawed and skewed interpretations of twentieth-century temperature data, overestimation of CO2's "heat-trapping," and incompetent computer models.  The EPA continues in full alarm mode on CO2, without honestly subjecting it to the full hearing and scientific process required by the law.  Control of CO2 is essentially the power to control almost all means of industrial production and heating.

On Mercury: The EPA has proposed and will soon adopt a standard as to mercury emissions from electricity generation (e.g., coal) plants.  The air quality measures for mercury put out by the EPA are two or three times more stringent than those of the FDA and some world health organizations.  The EPA even used data other professionals have rejected as not probative.  Moreover, serious scientists say that our power plants account for less than 0.5% of all the mercury in the air we breathe, and most mercury is naturally occurring.  The EPA nevertheless demands that utility companies spend billions to retrofit coal-fired power plants that produce half of all U.S. electricity.

On Fine Particulates: The EPA is fostering concern over very fine particulates associated with diesel fuel and other human activities.  The Agency generally claims human health danger based on reviews of inexact public records, even though such studies are inherently incapable of proving causation.  Associations between fine particles and mortality or heart disease have been said to exist in some and shown to be nonexistent in other studies.  Health impacts are even seen to disappear when confounding conditions are taken into account.  Scientists like James Enstrom in California have lost their jobs after publishing  honest studies showing that no health effects occur, and many trucking companies in California now face ruin from the cost of these rules based on statistical guesswork.

In sum, the EPA is assuming more control of the economy of the United States for reasons driven more by ideology and politics than demonstrated scientific or public health need.  The Agency's approach to regulation needs serious reform, and the ability of courts to provide serious scrutiny of agency action also must be improved. 

Harvey M. Sheldon, a former USEPA Regional Counsel and graduate of Harvard Law, has extensive environmental law practice experience.  This article expresses his personal opinions and is not on any client's or firm's behalf.

In the United States, we are repeatedly told that good science requires this or that regulation because this or that bad thing will happen otherwise.  We live in a world that depends on honest answers to good questions in order to keep itself from making serious mistakes.  Unfortunately, government is not an institution designed to ask all the right questions, and it often fails to give good or honest answers to the questions it does ask.  This is occurring more and more often in the environmental arena, where political and ideological goals are driving the misuse of science by the United States Environmental Protection Agency to churn out highly questionable new regulations.  For example, in the field of air pollution control, companies big and small are faced with some new requirements that will do little for the environment while shrinking the chances of business or job growth.

The USEPA has been preparing to issue new national ambient air quality standards (NAAQS) for ozone.  These may be the most expensive environmental rules ever issued.  Yet they are not needed, and they are ill-advised from a policy and program viewpoint.

According to the Clean Air Act, the EPA must periodically review and adjust ambient air quality standards in order to provide protection of public health and the environment, with an adequate safety margin.  Over the decades since its original passage in 1970, the Act has brought about beneficial reductions in ozone and other pollutant concentrations for which NAAQS exist.  The EPA administrator must adjust the standards in keeping with the best science on the subject, and the reviews are to take place every five years.  They are done in a staggered manner so that states can have staff attend to the need for new regulation in an orderly way and business can count on getting a certain amount of mileage from the their pollution control investments.

The EPA's willingness to take a very aggressive position in favor of public protection is admirable in a sense, but regulation based on bad science is destructive.  The Agency has been alarmist in air quality programs, to the point where over-control is rather clearly occurring.  The method for this over-control is to claim thousands of instances of death or disease prevented, yet there is little reliable solid scientific evidence of such a death toll actually being caused by air pollution.  The Agency cites reviews of disease and mortality that it correlates with a given pollutant instead of findings of actual causes of death or disease.  As Steve Milloy aptly says, show us the bodies.

The current administrator has departed from the bipartisan prior practice and instead revisited a NAAQS on ozone in less time than the law provides.  This is especially questionable since ozone air quality has greatly improved over the years, and the asserted bad health effects are dubious.  Prior administrators have generally relied upon the advice and findings of a Clean Air Scientific Advisory Committee (CASAC), which is an expert panel set up by law to provide unbiased scientific opinion on air standards and the health effects, if any, of air pollutants.

Administrator Lisa Jackson intends to go ahead and ratchet down the ozone standard fully two years before the next CASAC full review is due.  The stated need for a more stringent standard is that people's health is adversely affected, yet look at the facts on asthma, an ancient disease: ozone levels have declined 30% in the nation at the same time that asthma cases have increased threefold.  Dr. Roger O. McClellan, a former CASAC member, has stated that "there is no compelling reason based on the EPA CASACs advice that the Ozone NAAQS be set in the range of 60 to 70 ppb"  He also says that Administrator Jackson's decision to "reconsider" that [2008] decision "is without precedent and, if she proceeds, will set a terrible precedent for any future EPA Administrator to reconsider every rule of the previous administration. What a way to create havoc and send the economy in to a tail spin."  Senator James Inhofe of Oklahoma, ranking Republican on the Senate Environment and Public Works Committee, has accused the EPA of deliberately using flawed science, biased advisors, and a lack of serious objectivity in its critical reviews of data and evidence respecting the need for a tougher standard.

Other examples of EPA overcontrol with political motives include:

On Global Warming: Carbon dioxide (CO2) is a naturally created gas essential to life on the planet that occurs only in trace amounts atmospherically.  The EPA insists that CO2 causes and threatens serious warming of the climate.  Recent research shows that the alarm is based on a number of doubtful ideas, including flawed and skewed interpretations of twentieth-century temperature data, overestimation of CO2's "heat-trapping," and incompetent computer models.  The EPA continues in full alarm mode on CO2, without honestly subjecting it to the full hearing and scientific process required by the law.  Control of CO2 is essentially the power to control almost all means of industrial production and heating.

On Mercury: The EPA has proposed and will soon adopt a standard as to mercury emissions from electricity generation (e.g., coal) plants.  The air quality measures for mercury put out by the EPA are two or three times more stringent than those of the FDA and some world health organizations.  The EPA even used data other professionals have rejected as not probative.  Moreover, serious scientists say that our power plants account for less than 0.5% of all the mercury in the air we breathe, and most mercury is naturally occurring.  The EPA nevertheless demands that utility companies spend billions to retrofit coal-fired power plants that produce half of all U.S. electricity.

On Fine Particulates: The EPA is fostering concern over very fine particulates associated with diesel fuel and other human activities.  The Agency generally claims human health danger based on reviews of inexact public records, even though such studies are inherently incapable of proving causation.  Associations between fine particles and mortality or heart disease have been said to exist in some and shown to be nonexistent in other studies.  Health impacts are even seen to disappear when confounding conditions are taken into account.  Scientists like James Enstrom in California have lost their jobs after publishing  honest studies showing that no health effects occur, and many trucking companies in California now face ruin from the cost of these rules based on statistical guesswork.

In sum, the EPA is assuming more control of the economy of the United States for reasons driven more by ideology and politics than demonstrated scientific or public health need.  The Agency's approach to regulation needs serious reform, and the ability of courts to provide serious scrutiny of agency action also must be improved. 

Harvey M. Sheldon, a former USEPA Regional Counsel and graduate of Harvard Law, has extensive environmental law practice experience.  This article expresses his personal opinions and is not on any client's or firm's behalf.