10/13/2020 - EPA Mission Tracker - Legal Analysis

40 Law Scholars Oppose EPA’s Changes to the Ozone Standards-Setting and Science-Advising Process

In August, EPA proposed to leave unchanged the current National Ambient Air Quality Standards. The proposal defied accumulating scientific evidence that tightening the standards would be critical to providing adequate protection of public health, as the Clean Air Act requires. Despite the science, this outcome was foreseeable: EPA’s political leadership spent more than two years making changes to the composition and functioning of the Clean Air Science Advisory Committee and the NAAQS process itself that from the beginning were clearly designed to serve this deregulatory outcome.

In comments to the proposal filed on October 1, 40 law professors laid out changes and their significance and impact:

“In our view, recent changes to the science advisory committee’s role and composition render the Proposed Action legally deficient, and will result in standard-setting that contravenes Congress’s will. First, the current CASAC lacks the depth and breadth of expertise necessary to review proposed National Ambient Air Quality Standards as Congress intended, to ensure the application of the best and latest science to standard-setting. Second, CASAC, as currently constituted, fails to meet basic standards for the composition of federal expert panels. And finally, EPA has used a shortened process that commingles science and policy and cannot ensure that the science behind the standard is up-to-date and of the highest quality.

The current CASAC is unqualified to give scientific advice on primary and secondary National Ambient Air Quality Standards (NAAQS) for ozone. It thus is unqualified to aid EPA in promulgating NAAQS, and its work is unable to aid courts effectively in reviewing EPA’s decisions. While the direct consequences of this lack of qualification are a failure of the scientific integrity of the NAAQS-setting process, there are also significant legal implications, because the operation of the current CASAC is at odds with the role Congress gave CASAC, contravenes federal guidelines for peer review, and cannot ensure that EPA’s standards meet the substantive statutory requirements. These failures mean that EPA’s decision cannot meet even the deferential standard of arbitrary and capricious review, and that the agency has failed to ensure that the ozone ambient air quality standards will be set at the statutorily mandated levels: those levels requisite to protect public health and welfare, with an adequate margin of safety.”