Legal View: Weak job market kills stricter ozone standards

By Jeanette Schuster The Daily Record Newswire On Sept. 2, President Obama announced that he had asked the U.S. Environmental Protection Agency to withdraw its draft Ozone National Ambient Air Quality Standard until at least 2013, the next regularly scheduled review. The new standard the EPA proposed to put into effect would have reduced the allowable eight-hour primary ground-level ozone concentration to between 60 and 70 parts per billion from the current 84 ppb standard set in 2008. The EPA's panel of science advisers had concluded that this reduction was needed to protect children and other at-risk populations against an array of ozone-related health effects ranging from decreased lung function and increased respiratory symptoms to serious indicators of respiratory morbidity. Ground-level ozone is not emitted directly into the air but is created by a chemical reaction in the presence of sunlight between oxides of nitrogen and volatile organic compounds. These compounds originate from car exhaust and industrial emissions, gasoline vapors and chemical solvents. Ground-level ozone is the primary constituent of smog and is a health concern in the summer when temperatures are high. Ground-level ozone also has negative impacts on sensitive plants and ecosystems. The EPA has estimated that a 60 ppb ozone standard would annually save up to 12,000 American lives, 58,000 asthma attacks and 2.5 million days of missed school or work. In the president's issued statement, he explained that his decision to block the new standard was based on the "... importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover." While he characterized his commitment to protecting public health and the environment as "unwavering," he also "... did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered." The president's statement was issued on the same day the Bureau of Labor Statistics reported that no new jobs were added to the U.S. economy in August. It appears that environmental protection and clean energy have taken a back seat to job creation and industry pressure. Understandably, the health community and renewable energy and environmental groups are upset by the president's decision. Meanwhile, leaders of petroleum, manufacturing and power-generating companies, as well as business groups, are touting job protection and rebuilding the economy as clear winners. All eyes are now on the EPA's proposed mercury and air toxic standards, which would impose strict limits on mercury and other hazardous pollutants from oil- and coal-fired power plants. If issued, these standards, which are among a suite of new regulations the EPA is considering in the energy sector, are expected to lead to a large number of coal plant shutdowns. The president's ozone decision raises important questions about balancing the need for resuscitating a depressed economy with a safe environment and clean energy. Certainly, his decision has opened the door for additional policy decisions that undermine environmental and energy regulations because, in most instances, impacted industry sectors can surely always come up with numbers showing a negative impact on their bottom line. If money is all that really matters right now, then the current economic recession will have lasting impacts long after factories are again humming and people are back at work. They just won't be able to breathe too deeply. ---------- Jeanette Schuster is an attorney in the environmental and natural resources practice group at Tonkon Torp LLP. Contact her at 503-802-2114 or jeanette.schuster@tonkon.com. Published: Tue, Sep 20, 2011