Yesterday evening, EPA announced its long-awaited decision on the national standard for ozone, a.k.a. smog. As expected, EPA chose to tighten the primary standard to 0.075 parts per million (ppm) from its current level of 0.084 ppm. The secondary standard for ozone will remain identical to the primary standard.

EPA's Administrator, Stephen Johnson, is now taking heat from both sides. Industry groups like the National Association of Manufacturers complain the rule will levy large compliance costs — ignoring the Clean Air Act's prohibition on considering economics for ozone standards. Environmental and public health advocates complain EPA ignored the advice of its independent scientific advisers (who had recommended a standard between 0.060 and 0.070 ppm) and that the rule is not adequately protective of public health. For a breakdown of how the public could have benefited from a tighter standard, see this press release from Environmental Defense.

EPA's decision to tighten the ozone standard will go down as one of the biggest environmental policies to come out of the Bush administration. To prove the significance of the rule, simply look at who was involved.

While EPA's decision to set a standard of .075 ppm had been a foregone conclusion, but officials wrangled over whether to set a separate secondary standard. Under the Clean Air Act, EPA may set a secondary standard for the protection of public welfare. (The primary standard is to focus on public health.)

In the past, EPA has chosen not to set a secondary standard for ozone; but during this revision, the agency had prepared to set a more tailored, seasonal standard citing the vulnerability of certain plants sensitive to ozone's deleterious effects.

However, just days before EPA was ready to issue the new primary and secondary standards, Susan Dudley — the administrator of OMB's Office of Information and Regulatory Affairs who President Bush recess appointed last April — wrote to Johnson March 6 complaining EPA had not considered economics in proposing a new secondary standard and raising questions about the scientific justification for the decision.

Marcus Peacock, EPA's Deputy Administrator and Regulatory Policy Officer, shot back in a letter dated March 7. Peacock said EPA is prohibited from considering costs in setting the secondary standard, and that the agency had provided ample scientific rationale for its decision. An internal memo dated March 11 shows EPA was ready to ignore Dudley's complaints and set a new seasonal secondary standard for ozone.

Apparently, that's when the head honcho stepped in. According to Washington Post reporter Juliet Eilperin, "The rule's preamble indicates Bush settled the dispute March 11, saying the president concluded the secondary standard should be set 'to be identical to the new primary standard, the approach adopted when ozone standards were last promulgated.' "

The president's direct intervention in a rulemaking is rare and, in this case, damaging. The Decider at work.

Johnson's decision to ignore the advice of his scientific advisers and set a compromise standard of .075 ppm likely comes in response to pressure from industry groups and anti-regulatory lobbyists who didn't want the standard changed at all. In the months leading up to the decision, EPA and OMB held numerous closed-door meetings with representatives from the oil, electric, and auto industries, among others.

One of those meetings, held way back in June to hear the specific complaints of the auto industry, featured a representative from the office of Vice President Dick Cheney. Cheney's office rarely involves itself in specific rulemakings; but when it does, it focuses on high-profile rules, particularly environmental and homeland security rules. Although the details of the meeting are not public, the vice president's office was probably stumping on behalf of Big Auto, and against the public health.

The White House has stopped EPA efforts to regulate greenhouse gas emissions, according to an investigation of the House Oversight and Government Reform Committee released today.

After the Bush administration had refused for six years to acknowledge global warming, the Supreme Court last April prodded EPA to consider regulating greenhouse gases (Massachusetts v. EPA). In a letter to EPA Administrator Stephen Johnson, committee chairman Henry Waxman (D-CA) outlines how we got to where we are today:

• "In May 2007, the President signed an executive order directing EPA and other federal agencies to develop regulations to address greenhouse gas emissions from motor vehicles. The President explicitly stated that this order was in response to Massachusetts v. EPA."
• "According to EPA staff, the proposal to regulate CO2 emissions from motor vehicles was 'about 300 pages;' and had 'extensive analysis about ... the costs and benefits.' "
• "The proposal developed by the career EPA staff called for significant reductions in CO2 emissions from motor vehicles."
• "Internal EPA documents indicate that you were scheduled to make decisions on the endangerment finding and the vehicle greenhouse gas rule as early as October 4,2007."
• "After you endorsed the finding that CO2 emissions endanger welfare, the proposed determination was submitted to the White House Office of Management and Budget."

That's where things start getting fuzzy. Apparently, EPA and OMB have completely stopped working on the rule. EPA also sent the rule to the Department of Transportation (DOT). EPA had been working closely with DOT up until that point, according to EPA staff.

The White House is claiming the rule may no longer be necessary in light of fuel efficiency legislation Congress passed in December. That legislation requires DOT to tighten the Corporate Average Fuel Economy (CAFE) standards - the federal standards for vehicle fuel efficiency. Waxman's letter quickly dispels such claims:

As a legal matter, the passage of provisions in the Energy Independence and Security Act requiring the Department of Transportation to strengthen federal CAFE standards does not affect EPA's legal obligation to regulate CO2 emissions...

Moreover, the Supreme Court held in Massachusetts v. EPA: "The fact that DOT's mandate to promote energy efficiency by setting mileage standards may overlap with EPA's environmental responsibilities in no way licenses EPA to shirk its duty to protect the public 'health' and 'welfare.' "

Waxman is requesting from Johnson more information on why the rule was halted. Stay tuned to Reg•Watch for updates.

In "Rush Is On to Cement Regulations," Wall Street Journal reporter Elizabeth Williamson previews some regulations the Bush administration may finalize in its waning days of power:

Industries from agriculture to power are pressing for the Bush administration to act on a slew of pending regulations, betting they will do worse no matter who wins the White House in the fall.

Among the rules the article mentions:

• Changes to the Family and Medical Leave Act;
• Reduced limits on emissions from power plants near national parks; and
• Reporting exemptions for farms that produce air pollution from animal waste.

In today's Washington Post, Bloomberg news columnist Cindy Skrzycki covers the Small Business Administration's recent release of its Top 10 list of rules it is asking federal agencies to review and modify. Although it is difficult for an agency to start and finish a rulemaking in a year, these rules may get some attention in the coming months.

EPA has long been considering a revision to one of the rules on the Top 10 list, and will likely try to finalize it before Bush's time runs out. The rule would make it easier for facilities to dump hazardous waste under the guise of promoting recycling of the toxic material. According to the Sierra Club, "If the rule were adopted, an estimated three billion pounds of hazardous waste annually would no longer be regulated as waste under certain conditions."

Reg•Watch has also been blogging about some regulatory proposals under agency consideration. Among them, a rule to ease current restrictions on gun possession in national parks, and a series of rules which would reduce federal funding for state-administered Medicaid programs.

If you know of other rules that are in the regulatory pipeline and, for better or worse, the Bush administration may try to finalize in the next ten months, email Reg•Watch and tell us. We'll keep posting updates as the months roll on.

Groups representing both industry and the public are making final efforts to lobby EPA on its upcoming revision to the national standard for ozone, a.k.a. smog. EPA is under a court deadline to finalize the new standard by March 12.

EPA's scientific advisory panel on clean air has recommended EPA tighten the standard (currently 84 parts per billion) to between 60 and 70 parts per billion — a recommendation most environmentalists and public health advocates endorse. Many industry groups, as well as some governors and some in Congress, would like the standard to remain the same.

EPA is leaning toward a standard of 75 parts per billion, the Associated Press reports:

Both industry lobbyists and environmentalists say they believe [EPA Administrator Stephen] Johnson has taken the view that the standard should be tightened to 75 parts per billion — an approach that doesn't satisfy either industry or health experts

"It's a political compromise," says Frank O'Donnell, president of Clean Air Watch, an advocacy group. Even so, he adds, "every major industry is ... putting the squeeze on" to get the White House to leave the current standard in place.

On Feb. 27, EPA and the White House Office of Management and Budget (OMB) met with lobbyists from the National Association of Manufacturers (NAM), the Edison Electric Institute, and the National Paint and Coatings Association. EPA and OMB also got a Valentine's Day visit from the National Taxpayers Union, an anti-government group that calls environmental, worker safety, and other public protections "hidden taxes." EPA and OMB have also heard complaints from big oil about a new ozone standard.

According to AP, "NAM Vice President Keith McCoy said his group told the White House Office of Management and Budget that the EPA was not considering the economic impact."

If it's true that EPA isn't considering economics, it's in an attempt to obey the law. The Clean Air Act prohibits EPA from considering compliance costs when setting the standard for ozone, and calls for the agency to make decisions that "reflect the latest scientific knowledge."

To their credit, on March 3, EPA and OMB met with representatives from NRDC, the American Lung Association, the American Academy of Pediatrics, and other public health groups. Those groups provided a listing of recent epidemiological studies that show adverse health effects at low levels of ozone exposure.

One of those adverse health effects is premature death, as AP also points out. A 2006 study for California showed that tightening the standard to 70 ppb would result in 270 avoided premature deaths in the state. "Another study estimated 3,800 premature deaths would be avoided nationwide."

For more on why EPA should base its decision on science, not economics, see the OMB Watch report Polluted Logic.