Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

EPA Proposes Keeping Obama-Era Ozone Limits Across Nation (2)

July 13, 2020, 7:02 PMUpdated: July 13, 2020, 7:36 PM

The Environmental Protection Agency is proposing to retain Obama-era air quality limits for ozone after rushing through a review of the standards that were set in 2015.

EPA Administrator Andrew Wheeler said he won’t seek to change the 70 parts per billion standard for ozone because it protects public health and vegetation. He said he based his initial conclusion (RIN 2060-AU40) on a review of the latest scientific evidence and policy recommendations by EPA staff that were vetted by the agency’s clean air advisers.

“EPA is proposing to retain without changes the existing ozone requirements,” Wheeler told news reporters on Monday.

The 2015 standards are designed primarily to protect public health, but also to protect vegetation and wildlife against the harmful effects of ozone, a lung-irritating pollutant that is the byproduct of fossil fuel combustion. Ozone retards plant growth.

Surviving ‘Legal Scrutiny’

Wheeler said the EPA made sure to get the proposal to review the ambient air quality standards right so they would “survive legal scrutiny.”

“This is a highly litigated area,” he said.

He emphasized that the proposal responds to a ruling by the U.S. Court of Appeals for the District of Columbia Circuit last August, which remanded the secondary standard for ozone that protects vegetation. The court also explicitly told the EPA it couldn’t account for compliance costs or use background ozone levels caused by wildfires or other causes to set standards.

Wheeler said EPA looked at the impacts of background ozone levels, such as wildfires and cross-border transport of air pollution, when reviewing the federal limits, but didn’t use them in accounting for the proposed standards.

Praise for Standards

Megan Houdeshel, a Clean Air Act attorney in the Salt Lake City office of Dorsey & Whitney LLP, said she was relieved to learn that the EPA was retaining the 2015 standards.

Western states like Utah, Colorado and Wyoming have naturally higher ozone levels due to non-anthropogenic sources such as lightning strikes, wildfires and pollution transport that drive formation of this pollutant, and relatively fewer stationary sources to control, she said.

“When there was talk of lower standards, states like Utah where I live, had significant concerns that they would be in nonattainment with nothing left to control,” Houdeshel told Bloomberg Law Monday.

“Maintaining the 2015 standards makes sense based on what we are experiencing out here in the West. Lowering it any further would make it difficult to find any rational way to further control emissions,” she added.

Industry groups, which could be faced with stringent controls if a locality repeatedly violates federal ozone limits, welcomed the EPA’s proposal.

“This decision reflects the considerable progress the United States has made to improve air quality and reduce emissions,” Marty Durbin, president of the U.S. Chamber of Commerce’s Global Energy Institute, said in a statement.

The American Exploration and Production Council, a national trade organization that represents largest independent oil and gas exploration companies, said Monday that “EPA’s proposed ozone standards protects public health without imposing unnecessary costs on American jobs or the economy.”

Status Quo Criticism

Meanwhile, the American Lung Association and other EPA critics have pounced on the agency for exposing vulnerable populations to higher levels of ozone. The nonprofit association said it supports a standard of no higher than 60 parts per billion.

The Clean Air Act requires the National Ambient Air Quality Standard to protect public health with an adequate margin of safety, Paul Billings, a senior vice president at the American Lung Association, told Bloomberg Law. The current standard fails to provide the necessary health protection, especially for children, seniors, and people with asthma, chronic pulmonary disease, and other chronic diseases, he said.

“We know that communities of color experience greater exposure to air pollution and bear a disproportionate health burden due to ozone pollution,” Billings said.

Sen. Tom Carper (D-Del.) blasted the EPA for not seeking to tighten the standards and for placing “politics before public health” especially during the pandemic that exacerbates respiratory complications.

“Amid an already deadly pandemic, this proposal would put the elderly and those living with diseases like asthma—some of the very same people at higher risk of adverse COVID-19 outcomes—at higher risk,” Carper said.

At-Risk Populations

Nearly 8% of the total U.S. population, and 8.4% of U.S. children, are at risk for contracting asthma, the EPA’s policy assessment found. Asthma is triggered by high ozone levels created by burning fossil fuels.

Blacks and Hispanics are the largest minority groups in the U.S. and have the highest rates of asthma, according to the nonprofit Asthma and Allergy Foundation’s website.

For instance, asthma prevalence among children in the U.S. is 12.6% for Black, non-Hispanic children, the group’s assessment reported.

Not only do these groups have the highest asthma death rates but they also have highest number of emergency room visits and hospital stays due to asthma, the foundation said. It also reported that Blacks and Puerto Ricans are three times more likely to die from asthma than whites.

Wheeler said he followed the advice of the clean air advisers, who considered the impacts on such populations.

“As an asthmatic myself, we did consider at-risk populations,” he said.

Getting Back on Track

The majority of scientists who make up the Clean Air Scientific Advisory Committee agreed that current ozone standards protect public health. This includes people already suffering from asthma; children, especially minorities; and outdoor workers, who the assessment concluded remain most at risk.

One of the seven advisers urged Wheeler to tighten standards to protect public health, including that of children, while the rest advised keeping the current limits.

The Clean Air Act requires the EPA to review ozone standards every five years, but it has rarely met that schedule.

However, Wheeler has been adamant about getting the agency back on schedule, and told the agency advisers in April to set aside any issues that are “more substantial and cross-cutting” for a future review. He plans to have a final decision on ozone out by the end of the year or early January.

In the meantime, the proposal will be subject to a 45-day comment period after it’s published.

(Adds link to proposal, background.)

To contact the reporter on this story: Amena H. Saiyid in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Rebecca Baker at; Anna Yukhananov at