Los Angeles, pictured here, along with Long Beach and Riverside, Calif. remain a metropolitan area with one of the highest levels of ozone pollution in the U.S. Nick Ut/AP
Reading Time: 5 minutes

When President Obama retreated from a tougher stance on smog last month, his Environmental Protection Agency chief had formally concluded that the existing standard endangered thousands of Americans, including children and people with respiratory ailments.

The Bush-era limit on ozone was “not adequate to protect public health,” and failed to take into account “newly available evidence,” EPA administrator Lisa Jackson concluded, according to recently released documents detailing the agency’s justification for a tougher standard.

Jackson, whose son has severe asthma, has been a passionate advocate for a stricter rule. She grew convinced the agency could save thousands of lives each year if Washington imposed a 70 parts per billion limit on smog-causing ozone.

That standard was the least stringent and inexpensive option recommended by an independent EPA advisory panel of scientists.

Obama, under pressure from business groups and Republicans, abruptly shelved the planned rule on Sept. 2. He cited “the importance of reducing regulatory burdens” and relieving businesses of “needless uncertainty” in a struggling economy.

But Jackson said the more stringent requirement is “necessary to provide requisite protection for children and other ‘at risk’ populations against an array of [ozone]-related adverse health effects.”

Among those effects, she said: Decreased lung function and potentially life-threatening respiratory and cardiovascular ailments.

Jackson’s conclusions, contained in a 381-page document that would have accompanied publication of a new standard, differed sharply from the three-sentence statement the EPA Administrator issued when Obama reversed course.

The document, known as a preamble, eventually would have been published in the Federal Register, had the White House not stepped in. Now it might become fodder in the courts, as clean air groups challenge the administration’s about-face.

The groups – Earthjustice, the American Lung Association, Environmental Defense Fund, Appalachian Mountain Club and Natural Resources Defense Council – revived a 2008 lawsuit in federal court on Tuesday. That suit had challenged the Bush administration’s standard, now embraced by the Democratic White House.

The Clean Air Act requires the EPA administrator to set standards for pollutants that “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” The lawsuit by the environmental organizations claims the Bush administration’s 2008 standard does not allow “an adequate margin of safety,” as the act requires.

The legal challenge moves Jackson in a different role – from advocate of a more stringent standard, to defender of the limit she sought to toughen.

While ozone in the stratosphere protects humans from harmful ultraviolet radiation, at ground level it can worsen bronchitis, emphysema, and asthma. Because of ozone’s adverse impacts on plants and animals, the EPA limits it under the Clean Air Act. Ground-level ozone , commonly known as smog, is expensive to reduce because it comes from a wide variety of sources. Compounds in the emissions from power plants, factories, and automobiles react with sunlight to form ozone.

During the EPA’s deliberations, businesses, industry groups and some state environmental agencies questioned the scientific evidence for risks to people at the less-stringent 75 parts per billion limit set by the Bush administration.

But “the Administrator did not agree” with the business groups “that essentially no weight should be placed on any of the new evidence or assessments,” the preamble stated.

“Taken together, the overall evidence supports a causal relationship between acute ambient [ozone] exposures and increased respiratory morbidity outcomes resulting in increased emergency department visits and hospitalizations.”

Responding to industry’s criticism, Jackson countered that new evidence was simply too strong to ignore. “The Administrator recognizes these uncertainties and limitations but finds no basis to conclude that these uncertainties and limitations warrant completely discounting the newly available evidence from controlled human exposure and epidemiological studies.”

In the preamble, the EPA acknowledged the challenges of putting the tougher standard in place but stressed “the tremendous public health benefits this standard will yield.” That, together with “the requirements of the Clean Air Act itself – make this a challenge we must meet,” it stated.

The agency, in a cost-benefit analysis also released on Oct. 3, estimated that the tighter ozone standard would have cost $19 billion to $25 billion to implement – but would have been offset by financial benefits ranging from $11 billion to $31 billion.

Health benefits would have included 4,300 deaths avoided annually.

A leaked copy of the cost-benefit document was first published by the Center for Public Integrity’s iWatch News last month. A comparison of likely swing districts with areas that would have been affected by a tighter 70 parts per billion standard yielded little evidence that the new rule would impair businesses or the president’s reelection hopes, as the ozone rule’s opponents had suggested.

Leading up to the decision, Republicans and industry had been making dire warnings about the new ozone rule’s potential effects. In a meeting with White House Chief of Staff Bill Daley two weeks before Obama’s decision, industry groups brought maps showing which electorally significant states would be hit hardest by the various standards they thought the EPA was considering.

Republicans also loudly warned that the $90 billion price tag of the strictest standard scientists had recommended, 60 parts per billion, would cripple the ailing U.S. economy.

The White House reversal could hardly have been much more abrupt; within 20 days earlier this fall, the EPA went from saying it would “revisit the ozone standard, in compliance with the Clean Air Act” to deciding to implement the Bush-era standard.

In a terse statement at the time of its announcement, the EPA said it would continue an ongoing review of the health effects of ozone that is due to be completed in 2013.

Jackson had been an outspoken critic of the 75 parts per billion standard that she must now support. Shortly before submitting the tighter standard for interagency review in July, she said the Bush limit was “not legally defensible.”

In public statements since Obama reversed course on Jackson’s standard, the administrator has only said she “respected the decision.”

She has not responded to iWatch News requests to be interviewed on the subject.

In a 2009 speech to the Asthma Forum, Jackson said she addressed the group “as both the administrator of the EPA, and as a parent of a child with asthma.” She described the struggles of her son, Brian, then 12, and traveling with his nebulizer, masks and medications, and noted that “protecting children’s health was one of the top agenda items I laid out in my very first memo, which I sent to all EPA employees in order to establish the priorities of this administration.”

And Jackson mentioned smog. “In the years ahead,” she said, “as some communities see more high ozone days and other environmental triggers because of climate change, what steps can we take to mitigate these challenges?”

Help support this work

Public Integrity doesn’t have paywalls and doesn’t accept advertising so that our investigative reporting can have the widest possible impact on addressing inequality in the U.S. Our work is possible thanks to support from people like you.