The Washington Post reports this morning that President Bush overruled EPA plans to have a modestly tighter ozone standard. In particular, the story reports that Bush told the EPA not to set a secondary "public welfare" standard for ozone that was more stringent than the primary "public health" standard.
documents, which were released by the EPA late Wednesday night, provided insight into how White House officials helped shape the new air-quality rules that, by law, are supposed to be decided by the EPA administrator.
The White House Office of Management and Budget (OMB) questioned in a March 6 memo to the EPA why the second standard was needed. EPA officials answered in a letter that high ozone concentrations can cause "adverse effects on agricultural crops, trees in managed and unmanaged forests, and vegetation species growing in natural settings."
The preamble to the new regulations alluded to this tug of war, stating there was a "robust discussion within the Administration of these same strengths and weaknesses" in setting the secondary standard. The preamble went on to say that the decision to make the two ozone limits identical "reflects the view of the Administration as to the most appropriate secondary standard."
The effort to rewrite the language — on the day the agency faced a statutory deadline — forced EPA Administrator Stephen L. Johnson to postpone at the last moment a scheduled news conference to announce the new rules. It finally took place at 6 p.m., five hours later than planned.
Particularly interesting is the Post's report that Solicitor General Paul Clement expressed concerns about the revision.
The president's order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone.
Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.
The story quotes an environmentalist attorney accusing the White House of "unprecedented and an unlawful act of political interference." This strikes me as quite hyperbolic. Insofar as the relevant Clean Air Act language leaves the EPA Administrator with any policy discretion in the setting of standards — and I believe it does — there is nothing illegal or improper with the President directing the EPA Administrator to exercise that discretion in accordance with administration policy. If the revised standards fail to hold up in court — and I have no opinion on this matter as I have not yet read the relevant documents — it will not be due to any supposedly "unlawful" interference by the President, but because the EPA failed to provide an adequate justification for the new standard.
UPDATE: John Walke of NRDC, the "environmentalist attorney" quoted above, responds in the comments here. He makes a strong case that the EPA set forth a weak justification for the new ozone NAAQS, largely due to last minute instructions from the White House to modify their decision. Assuming Walke's characterization is accurate, the NAAQS standard may well fall in court.
To clarify my position, there is nothing "unprecedented" or "unlawful" about a White House directing an EPA Administrator to exercise his discretion in accordance with Administration policy. Whether it has happened in the context of setting a NAAQS standard or not, it has happened with many EPA decisions over the years. Harping on alleged "interference" makes for a good soundbite, but I think it detracts from the real issue: Whether or not the EPA articulated an adequate justification for its decision under the Clean Air Act. The EPA's rule in this case may well be "unlawful," as Walke argues. If so, it is because of the substance of EPA's justification and its failure to articulate an adequate justification for the rule. Even if this was due to the last-minute nature of the President's interference (a point which Walke makes quite strongly), the fact of Presidential "interference" is not, in itself, either unprecedented or unlawful.