Smog Rules Contested

Location: New York
Author: Ken Silverstein, EnergyBiz Insider, Editor-in-Chief
Date: Monday, March 31, 2008

Tougher smog rules are here. But the clean air debate once again illustrates the divide between a conservative, pro-industry administration and its harshest critics among the environmental and health communities. The standards aim to protect public health and set out to limit ozone pollution, or smog, by utilities and other manufacturers as well as the automotive sector.

The Environmental Protection Agency took the middle road. Ground level ozone, whose main component is smog and which contributes to heart and respiratory ailments, is triggered when sunlight reacts with nitrogen oxides and volatile organic compounds. The new rule changes the current standard of 80-84 parts per billion to 75 parts per billion. EPA's own scientific experts said that the threshold should be lowered to between 60 and 70 parts per billion, all to minimize the number of premature deaths.

In the end, the decision pleased neither health and environmental groups nor industrial organizations, which say that the science remains inconclusive and that the states need more time to comply with the last set of smog regulations enacted in 1997. "In the end it is a judgment," says EPA Administrator Stephen Johnson. "I followed my obligation. I followed the law. I adhered to the science."

In 1997, the standards were set to 80 parts per billion but industry challenged the law in court, saying that the economic implications would be deeply felt. Acknowledging those concerns, Administrator Johnson said nevertheless that several scientific studies have shown that the health and ecological affects of increased ozone pollution are "more significant" than "previously thought."

Under the older standard set in 1997, EPA had said that about 85 counties had not been in compliance. The new rules require it to determine by 2010 which counties are outside the new standard -- a number that may affect at least half of the 700 counties that it monitors. At that point, those counties would have until 2020 to clean their air. Dallas, Houston and Los Angeles are among the cities with highest smog levels.

Clean air laws, in fact, require EPA to review ozone standards every five years. Its analysis must be based purely on scientific data and without regard to cost. EPA says that the new ozone rules will cost about $8.4 billion a year while it estimates the price of a more stringent benchmark at 70 parts per billion would be $22 billion annually. The agency adds, however, that those costs could be offset through increased health benefits that would save in the range of $2 billion to $19 billion. "EPA has taken a baby step instead of the strong action doctors say is needed to protect our lungs," says David Baron, an attorney at Earthjustice. The environment, too, will be further harmed, he adds, noting that ozone pollution causes substantial damage to trees and plants by stunting their growth and making them susceptible to disease.

Litigation Likely

EPA had been court ordered to release the new standards by mid-March. By law, state and local officials must abide by those benchmarks and oversee the installation of pollution control devices among industries operating within their jurisdictions. If they fail to achieve the desired results, federal officials can deny them vital appropriations such as those needed to upgrade their highways.

In 2001, the U.S. Supreme Court ruled that ozone standards and the resulting public health benefits take precedence over economic considerations. But both the administration and industry have pounced on that decision. They want the law changed. But that's unlikely as the Democrats control both chambers of Congress and key members of the party support tougher smog rules.

Utilities, however, remain united on the ozone question. They say that replacing the 1997 standard is unnecessary and that the scientific evidence used to support change is dubious. Some scientists say that EPA has inflated the benefits of a new standard by as much as 90 percent in the way that it has calculated naturally occurring and other existing ground level ozone. At the same time, further strengthening that rule would disadvantage those states that have yet had time to comply with the earlier statute.

"Despite having spent billions of dollars on reducing air pollution, several metropolitan areas conclude that they will not be able to meet the 1997 standard even if they close down every factory and refinery in their cities," says Frank Maisano, who represents utility causes.

From 1980 to 2006, the national average for ozone levels fell by 21 percent, according to EPA. The Edison Electric Institute says that the power sector currently produces 10 percent of U.S. emissions tied to ozone formation. Specifically, it releases 20 percent of the nation's nitrogen oxides and about 0.5 percent of the volatile organic compounds. It says that the 1997 law should be given time to work, noting that utilities in the eastern U.S. -- where smog levels tend to be higher -- will likely cut summertime ozone-related emissions by 80-90 percent. Nationally, it says that utilities have cut annual nitrogen oxide emissions in half since 1980 and will reduce them by two-thirds by 2015.

The long-awaited decision leaves few groups contented. Industry still wants the 1997 standards left in place while environmental and health groups remain committed to making them much tougher. EPA has chosen a political compromise. Litigation is almost certain, leaving a question mark over the ultimate fate of smog regulations. Some progress will be made, although the states will plod along without a clear directive.