Turn your head and breathe

News Roads & Bridges April 03, 2001
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The U.S. Supreme Court ruled Feb. 27 that the Environmental Protection Agency (EPA) could go forward with its plans to set tighter air quality restrictions for ozone and dust.

The regulations had been challenged in a lawsuit brought by an industry coalition that included the American Trucking Associations, the American Road & Transportation Builders Association (ARTBA), the National Automobile Dealers Association, the National Stone Association, the National Mining Association and the American Petroleum Institute.

Absent from the industry’s lawsuit was any challenge to the scientific basis for the proposed standards, but not for lack of controversy over that science.

"She’s changed the foundation of the Clean Air Act from a solid foundation to one of sand," said Bill Fay, president and CEO of the American Highway Users Alliance, a Washington lobbying group. He was referring to former EPA Administrator Carol Browner, who was in charge of the agency in 1997 when the new ozone and particulate standards were promulgated.

"We accept the [old] 0.12 [ppm ozone] standard because what the scientists were trying to do we think was consistent with the law," Fay continued. "The debate over clean air has always been over how to meet that level, not whether to meet that level." But Fay questioned the necessity of lowering the ozone standard to 0.08 ppm.

There are also questions about the new standard for dust particles less than 2.5 microns in diameter (PM2.5).

George T. Wolff, chairman of the Clean Air Scientific Advisory Committee (CASAC) that reviewed the scientific basis for the new standards for the EPA, wrote in a 1997 commentary in a Cato Institute publication, "CASAC did agree that a PM2.5 standard is appropriate, but there was no agreement on the level because of all of the unanswered questions that were raised. One of those questions was the lack of a plausible biological mechanism."

John Bachmann, an air quality expert at the EPA who was influential in the standard-setting process, said that the CASAC "concluded that the association between particulate matter and serious health effects like mortality and morbidity was likely causal at concentrations below the old air quality standard, which sort of compelled us to tighten standards." Bachmann is now the associate director for science policy at the EPA’s Office of Air Quality Planning and Standards.

"There was a very strong consensus on the size of the particles, with 19 out of the 21 CASAC members recommending that we add a new fine particle standard," Bachmann confirmed. "There was a lot of debate over where we ought to draw the line in terms of ambient concentration that the standard was set at."

What the EPA did, according to Bachmann, was to look at areas where there were significant health effects associated with particulate matter and set the allowable concentration in the standard a little bit lower than the lowest long-term ambient concentration in those areas.

Missing data link?



The industry also questioned the EPA’s refusal to release some scientific data that the agency relied on in revising the ozone and particulate standards.

Many industry officials latched onto the issue of the missing data from two health studies to say that there was something suspicious about the EPA’s standard-setting process.

"What Administrator Browner did," Fay protested, "was to take the studies she liked the best and then tell us that she wouldn’t let us see what the data was and how it was generated."

The studies in question were studies of health effects conducted by Harvard University, known as the "Harvard six cities" study, and the American Cancer Society.

"What we would like to have," said Fay, "is for CASAC to make a decision on this and to tell us what they think the eight-hour [ozone] standard should be, as they did with the one-hour standard."

"In fact, we relied on all of the literature," comprising thousands of research studies, Bachmann responded, "and the people who tried to make it look like those were the two key studies that made all the difference are just wrong. All of the studies, including the ones that had data that were hard to get were published and peer-reviewed.

"The people who didn’t give the data up had good reasons not to give it up," Bachmann continued. The air quality data from these studies was available, but the health data was restricted by confidentiality agreements with the patients who participated in the studies. Many health studies have similar conditions, according to Bachmann, where the health data of the patients is kept confidential.

"We support the idea of making information available. I promise you EPA wasn’t hiding the data. We didn’t have it to give out," said Bachmann.

The EPA asked the sponsors of the two studies to release the data and eventually negotiated a compromise with the institutions and industry to have an independent group of scientists re-analyze the data without releasing it to the public.

"That came out this summer," said Bachmann, "and they found essentially the same answers as the original investigators. So somebody else did, in fact, re-analyze it and just put the lie to the idea that there must be something hidden or untoward or wrong about these data."

Bachmann insisted that the two studies in question did not add any necessary information that could not be found in the rest of the scientific literature: "If you took these two studies away, we have the same standard."

The case



The case before the Supreme Court involved four issues. The court decisively and unanimously dispatched the industry coalition’s main contention, which was that the EPA should have considered the cost of implementing the new standards, but failed to do so.

The Supreme Court agreed with the appeals court’s earlier decision that the Clean Air Act (CAA) prohibits the EPA from considering costs in setting National Ambient Air Quality Standards (NAAQS). Writing for the majority, Justice Antonin Scalia wrote, "Nowhere are the costs of achieving such a standard made part of that initial calculation."

The court pointed out that the costs of implementation are extensively taken into account in other parts of the CAA that have to do with implementing the standards. "Subsequent amendments to the CAA have added many more provisions directing, in explicit language, that the Administrator consider costs in performing various duties," wrote Scalia. Included in these activities are reducing emissions from nonroad vehicles, enforcing compliance for stationary sources and effecting standards for automobiles.

Costs are considered at the implementation stage. However, Scalia wrote, the CAA "unambiguously bars cost considerations from the NAAQS-setting process."

The second issue was the industry’s contention that the EPA’s standard-setting activities in this case were an unconstitutional delegation by Congress of legislative authority to a nonlegislative body. The EPA is part of the executive branch of the federal government.

The appeals court sided with the industry coalition. The Supreme Court decided 8-1 to overturn the appeals court. Scalia cited several similar court cases and wrote that the EPA’s discretion within its mandate to "set air quality standards at the level that is ‘requisite’–that is, not lower or higher than is necessary–to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent."

The third issue was the EPA’s challenge to the appeals court’s jurisdiction to review the EPA’s implementation policy. The EPA argued that its decision making process was not final, so the standards were not yet subject to review by the court, which has the power to review any regulations or final actions taken by the EPA.

The Supreme Court disagreed 8-1. Scalia wrote that the EPA’s decision making process actually ended when the agency adopted the interpretation at issue regarding implementation. "Since that interpretation issued, the EPA has refused in subsequent rulemakings to reconsider it," wrote Scalia, "explaining to disappointed commenters that its earlier decision was conclusive." Scalia concluded that the EPA’s "own behavior thus belies the claim that its interpretation is not final."

The fourth issue brought in the lawsuit was the industry’s challenge of the EPA’s interpretation of the implementation section of the CAA. The question was which subpart of the CAA should govern the classification of nonattainment areas and the schedule for bringing these areas into compliance with the revised ozone standards.

On this point, the Supreme Court decided with the appeals court, though not by the same reasoning, in finding that the EPA’s interpretation of the CAA was unlawful. The Supreme Court remanded the implementation issue to the appeals court for a final decision and, in Scalia’s words, left it to the EPA to "develop a reasonable interpretation of the nonattainment implementation provisions insofar as they apply to revised ozone NAAQS."

The particulars



The old standard for ozone was a concentration of 0.12 ppm averaged over 1 hr. The new standard averages over 8 hr, but drops the allowable concentration to 0.08 ppm.

For particulate matter, the EPA set a new standard for fine particles smaller than 2.5 microns in diameter. The allowable limit for these fine particles is an annual average of 15 micrograms per cubic meter (m
g/m3), with a 24-hour limit of 65 m
g/m3. The EPA retained its standard for coarse particles of 2.5-10 microns. The allowable limit for coarse particles is 50 m
g/m3 over the course of a year and 150 m
g/m3 in 24 hr.

Coarse particles come from sources such as windblown dust from the desert or agricultural fields and dust kicked up on unpaved roads by vehicle traffic.

Fine particles are generally emitted from activities such as industrial and residential combustion and from vehicle exhaust. Fine particles are also formed in the atmosphere when gases such as sulfur dioxide, nitrogen oxides and volatile organic compounds, emitted by combustion activities, are transformed by chemical reactions in the air.

Fine particles penetrate deeper into the lungs, according to the EPA, and affect health at concentrations well below those allowed by the 10-micron standard.

Health effects for fine particles include premature death; increased hospital admissions and emergency room visits; increased respiratory symptoms and disease; decreased lung function; changes in lung tissue and structure; and changes in respiratory tract defense mechanisms.

The other part of an EPA air quality standard is determining when a geographic area should be declared in nonattainment. An area is not thrown into nonattainment by exceeding the standard on one day and then thrown back into attainment on the next day. The situation is more complicated than that.

To meet the PM2.5 annual standard, an area must find the average concentration measurement for each of the past three years, then average those three averages. The result must be less than or equal to 15 m
g/m3.

To meet the PM2.5 24-hr standard, an area must find the concentration measurement in the 98th percentile for each of the past three years, then average those three measurements. The result must be less than or equal to 65 m
g/m3.

The calculations for the 10-micron standard are similar, but the 24-hr standard uses the 99th percentile measurement.

Essentially, these calculations are intended to reduce the effect of a single bad-air day, which may be caused by unusual meteorological conditions.

For ozone, the EPA is phasing out the old standard of 0.12 parts per million (ppm) averaged over 1 hr and phasing in a standard of 0.08 ppm measured over 8 hr.

The new standard will not be imposed on a given area until the area has met the old standard for three consecutive years.

Exposure to ambient ozone is linked to increased hospital admissions for respiratory ailments, such as asthma. Long-term exposure can cause repeated inflammation of the lung, impairment of lung defense mechanisms and irreversible changes in lung structure, which could lead to premature aging of the lungs or chronic respiratory illnesses, such as emphysema and chronic bronchitis.

The EPA decided to measure ozone over 8 hr because that duration is more directly associated with the health effects of most concern cited in recent health studies.

An area will be in compliance with the ozone standard when the three-year average of the annual fourth-highest daily maximum 8-hr concentration is less than or equal to 0.08 ppm.

Appealing to Congress



ARTBA spokesman Greg Smith sounded fatalistic about the industry’s chances of turning back tighter air quality restrictions: "The lawsuit is still ongoing. We’re going to continue to fight it, but the reality is that new standards are going to be coming down the pike. It’s just a question of when and how severe they are."

The industry clearly feels unsatisfied–and unpersuaded–by the Supreme Court’s decision. "For the Supreme Court to say that the EPA can do anything they want in terms of regulating air quality with absolutely no regard to cost to society," complained Smith, "including jeopardizing transportation improvement projects that actually do save lives… we find that pretty egregious."

ARTBA estimates that the new air quality standards could result in 300 communities falling out of compliance and could result in states losing $12 billion per year in federal highway funding. Under the law, states that do not meet federal air quality standards cannot use federal highway funds.

ARTBA believes the situation will ultimately jeopardize transportation improvement projects in all 50 states. An ARTBA analysis forecasts that 950,000 workers in highway construction and related industries could lose their jobs or suffer a loss of income under implementation of the tighter ozone and dust standards.

Meanwhile, ARTBA may look to Congress for relief from costly air quality regulations. Smith said, "The truth of the matter is that we’re going to be looking toward Congress to try to go back and take another look at the Clean Air Act and re-evaluate exactly what the Clean Air Act is trying to accomplish."

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