State AGs Urge EPA to Protect Public Health and Welfare by Strengthening Air Quality Standards for Ozone

Washington, D.C. — A coalition of 14 attorneys general led by New York Attorney General Letitia James submitted comments today in opposition to the Environmental Protection Agency’s (EPA) proposal to retain the existing National Ambient Air Quality Standards (NAAQS) for ozone. The comments highlight extensive problems with the process by which the EPA reached its decision, which the attorneys general warn “fails, given the existing and growing body of scientific evidence, to protect public health of all groups with an adequate margin of safety.”

“The EPA’s decision to leave in place ozone pollution standards that are insufficiently protective of public health is, in itself, cause for serious alarm. Worse is that the EPA made this decision without the benefit of independent scientific input from ozone experts, whom it froze out of the review process,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “Tragically, as state attorneys general have pointed out, the many disadvantaged communities that are disproportionately exposed to unhealthy smog will suffer as a result. It is not right, and will not go unaddressed.”

Substantive Flaws — The EPA’s previous review of the ozone NAAQS concluded in 2015, with the agency setting both the primary standard (intended to protect public health) and the secondary standard (intended to protect public welfare) at 70 parts per billion. The attorneys general note that since 2015, “ample new data and scientific research has emerged on the negative impacts of ozone,” which include “adverse cardiovascular effects, reproductive and developmental effects, and nervous system effects.” There is also growing evidence of “a likely causal relationship between short-term ozone exposure and metabolic effects, such as metabolic syndrome, diabetes, and metabolic disease mortality.”

The EPA’s proposal to leave the standards unchanged will be particularly harmful to environmental justice communities, who bear a disproportionate burden of the public health impacts of ozone pollution. The attorneys general emphasize that their states “have an interest in protecting minority, low-income and indigenous communities from the disparate impacts of air pollution, but are unable to do so without reliable standards in place.”

Procedural Flaws — Beginning in 2017, the EPA “injected several changes to the NAAQS review process, undermining the scientific credibility” of the agency’s analysis by arbitrarily excluding scientific experts, truncating and eliminating important steps, reducing transparency and curtailing opportunities for public input. Notably, the EPA broke from previous reviews by declining to convene an Ozone Review Panel, and instead relying solely on the findings of the Clean Air Scientific Advisory Committee (CASAC) — a body that the attorneys general note “lacks the necessary expertise to meaningfully review and provide advice” on the subject. The CASAC has itself been hobbled by a controversial directive that barred scientists who receive EPA grant funding from serving on the agency’s advisory committees — a directive that was struck down by the U.S. Court of Appeals for the D.C. Circuit earlier this year.

The attorneys general emphasize that the EPA “failed to provide any reasoned explanation — or any explanation at all — for the changes to the review process,” which collectively render the agency’s proposal to retain the existing standards arbitrary and capricious. With respect to the primary standard in particular, the attorneys general warn that the EPA “failed to apply the correct methodological approach, improperly discounted or flatly ignored a wealth of evidence demonstrating that a more stringent primary standard is necessary, and failed to provide the type of reasoned explanation for its decision-making that is required by law.”

The attorneys general of California, Connecticut, Illinois, Maryland, Massachusetts, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin and Washington, D.C., along with the Corporation Counsel of the City of New York, joined AG James in submitting the comments.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.