The Trump administration’s decision on May 10 to set new guidelines for National Ambient Air Quality Standards could benefit the Environmental Protection Agency greatly if EPA Administrator Scott Pruitt simply follows through on his promises. Given that the EPA has less judicial discretion to change regulatory practice than most other federal agencies, any environmental downsides to the changes will be more limited than critics of the proposal think.

Pruitt has taken a beating on personnel and spending grounds in the past several months, but seems to be marching forward with a raft of changes to agency policy that has been called a “back to basics” platform. In the last 12 months, the EPA has changed its advisory science committee membership rules and ended a system of lawsuit settlement with environmental groups.

Now Pruitt is ordering his agency to launch a new rule-making for all six “criteria” pollutants that exist nearly everywhere in microscopic amounts — particulate matter, ground-level ozone, carbon monoxide, sulfur oxides, nitrogen oxides, and lead. Reviewing NAAQS is common practice every five years, according to statute, so it’s not as dramatic an endeavor as many critics would argue.

One can point to a lot of angry rhetoric surrounding Pruitt’s tenure. But the rhetoric from Pruitt himself has always been relatively guarded and focused on the process-based nature of EPA rule-making. For instance, Pruitt repeatedly draws attention to problematic areas in need of fixing at the EPA that are difficult to dispute: The agency repeatedly misses statutory deadlines regarding ambient air quality; it has underused the agency’s Clean Air Scientific Advisory Committee to comment on adverse social or economic effects of the NAASQ; there remains scientific disagreement over what the proper level of background concentration levels create an “adequate margin of safety” for public health, etc. Indeed, the biggest challenge for the EPA may be wrapping up the rule-making by the end of Trump’s first term.

I have no problem with the “back to basics” approach, especially if new standards can be backed up by science. Moreover, there is only so much discretion that an EPA administrator can exert before running into statutory language. Thus, Pruitt’s “back to basics” focus can only go so far, if only because the 1970s-era Clean Air Act itself is showing its age.

All this sets up the simple fact the nearly 50-year-old CAA is due for some targeted revisions. There is nothing in the Constitution stating “thou shalt not amend enviro legislation,” and experts in the past several decades have achieved a more nuanced understanding of the health and economic trade-offs regarding environmental regulation.

Pruitt’s memo on new air standards shows his plan to get the clean air advisory board to review the new standards, specifically how to better balance the costs and benefits of air-pollution regulations.

Such policy balances, however, are anathema to many environmentalists, who have enjoyed a strict interpretation by the federal courts concerning the influences of regulatory cost on health outcomes for the six NAAQS pollutants. The Supreme Court in 2001, in a majority opinion written by conservative Justice Antonin Scalia, sided with environmentalists, noting that there should be no role for “cost considerations from the NAAQS-setting process.”

But the Supreme Court in recent years has become less pleased with government agencies failing to account for any costs whatsoever when creating health-based standards. It’s almost certain that the Pruitt-led NAAQS rule-making will find itself in federal court at some point in the next several years.

Given the heavy oversight federal courts administer over the EPA, any new analytical rigor injected into the rule-making process that can pass legal muster should be viewed as a good thing. Properly balancing the costs and benefits of a regulation should be the objective goal of any government. Both opponents and proponents of air quality rule changes therefore shouldn’t be afraid of such rule-making.

 

Image credit: Mark Van Scyoc