Posted on April 16, 2020 by Seth Jaffe
After more than three years of ignoring science whenever it does not support this Administration’s preferred outcomes, the issue of the future of science in environmental regulation has now been well and truly joined. Yesterday, Administrator Wheeler, disagreeing with the recommendation of EPA’s own staff, announced that EPA is proposing to retain the current National Ambient Air Quality Standard for PM2.5 of 12 ug/m3, notwithstanding substantial evidence that PM2.5 poses significant risks even below 10 ug/m3.
In the long-gone days prior to January 2017, this would be short and easy. The Clean Air Science Advisory Committee would have said that the current standard is not protective. NGOs and states would have sued, the D.C. Circuit would have vacated EPA’s decision, and even a right-leaning Supreme Court probably would not have thought it necessary to hear a further appeal.
Now, however, the Chair of CASAC doesn’t believe that epidemiology provides a basis for setting NAAQS and CASAC recommended keeping the current standard. What happens when EPA’s owns science advisors don’t believe in science? And what happens when the most outcome-based Supreme Court in living memory lies in wait?
I truly don’t know. I suspect that the D.C. Circuit, depending upon the panel, might still find a decision to keep the current standard to be arbitrary and capricious, but I would not count on the Supreme Court affirming that decision.
In the meantime, I am curious about Administrator Wheeler. Does he really believe what he is saying or does he just not care that this decision will fairly directly lead to thousands of additional deaths? As EPA’s proposed rule acknowledges, NAAQS are standards,
“the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.”
Greenwire reports that Administrator Wheeler told reporters that “there’s still a lot of uncertainty” surrounding the research supporting the lower PM2.5 NAAQS. Of course, since the statutory standard requires “an adequate margin of safety,” one would have thought that the uncertainty supports more stringent standards, rather than less stringent ones. Indeed, ever since Ethyl Corp. v. EPA, courts have been clear that EPA must be prepared to regulate even in the face of uncertainty if it is to fulfill its mission to protect the public.
I may not be able to predict what the courts will do, but I’m confident that history will not treat this Administration kindly. Over time, there is little doubt that the evidence against PM2.5 is only going to grow stronger. However, by the time a future administration acts on that accumulated weight of data, thousands of people will have died needlessly.
Well done, Mr. Wheeler.