Last Friday when the White House told Environmental Protection Agency administrator Lisa Jackson to drop her plans to revise the national ambient standard for ozone, it seemed like just another example of President Obama caving to business interests. Others were quick to remind me though that bowing to business is not the half of it: the White House order is illegal. As University of Texas law professor Tom McGarity explains,

“Under the Clean Air Act, EPA is required to establish ambient air quality standards at a level that protects human health with an adequate margin of safety. It’s at this standard-setting stage that the Supreme Court made clear that costs may not be considered–the law doesn’t call for it, and it’s not for the courts, EPA or the President to attempt to insert cost as a factor.”

McGarity points out that it was a unanimous Supreme Court decision written by Justice Antonin Scalia that said costs are not to be considered in setting ambient air quality standards. (Whitman v. American Trucking, 2001)

McGarity goes on:

“Once a standard is established, the states are supposed to require sources of ozone-producing pollutants, such as power plants and refineries, to implement controls that are sufficient to ensure that the standard will be attained in the future. Costs may, of course, be taken into account in writing state implementation plans. That means that EPA’s task at hand is to make a scientific judgment about what the standard should be – not a political or economic one.”

The current 8-hour ozone standard of 84 ppb dates back to 1997. During the GW Bush Administration, EPA’s Clean Air Scientific Advisory Committee (CASAC) recommended in 2006 and 2007 the standard be reduced to 60-70 ppb based on evidence of serious health harm to children and those with respiratory disease at higher levels. But in 2008, the GW Bush Administration ignored CASAC’s recommendation and proposed a 75 ppb for ozone.

When President Obama took office, however, this change was put on hold presumably for one more in line with the CASAC’s recommendation and protective of public health. Now three years later, the 1997 standard of 84 ppb remains in place and the Obama Administration is telling us it will be several more years before a more health protective standard will be proposed. I choked when I read this in professor McGarity’s piece:

“Americans living in cities – where ozone pollution is at its worst – will be left in worse shape than they would have been had the inadequate Bush Administration standard gone into effect.”

With that legacy ahead of her, I agree with professor McGarity, EPA administrator Lisa Jackson should either defy the President’s order, or resign.