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Ozone Rules Weakened at Bush's Behest
EPA Scrambles To Justify Action

By Juliet Eilperin
Washington Post Staff Writer
Friday, March 14, 2008

The Environmental Protection Agency weakened one part of its new limits on smog-forming ozone after an unusual last-minute intervention by President Bush, according to documents released by the EPA.

EPA officials initially tried to set a lower seasonal limit on ozone to protect wildlife, parks and farmland, as required under the law. While their proposal was less restrictive than what the EPA's scientific advisers had proposed, Bush overruled EPA officials and on Tuesday ordered the agency to increase the limit, according to the documents.

"It is unprecedented and an unlawful act of political interference for the president personally to override a decision that the Clean Air Act leaves exclusively to EPA's expert scientific judgment," said John Walke, clean-air director for the Natural Resources Defense Council.

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 dispute involved one of two distinct parts of the EPA's ozone restrictions: the "public welfare" standard, which is designed to protect against long-term harm from high ozone levels. The other part is known as the "public health" standard, which sets a legal limit on how high ozone levels can be at any one time. The two standards were set at the same level Wednesday, but until Bush asked for a change, the EPA had planned to set the "public welfare" standard at a lower level.

The 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.

Under the Clean Air Act, the federal government must reexamine every five years whether its ozone standards are adequate, and the rules that the EPA issued Wednesday will help determine the nation's air quality for at least a decade.

Ozone, which is formed when pollutants such as nitrogen oxides and other chemical compounds released by industry and motor vehicles are exposed to sunlight, is linked to an array of heart and respiratory illnesses.

The EPA set the allowable amount of ozone in the air at 75 parts per billion, a level stricter than the current limit but higher than what the scientific advisers had recommended.

Carol M. Browner, who served as EPA administrator under President Bill Clinton, also encountered objections from the OMB when she established new ozone standards in 1997. In that instance, the president backed the EPA over White House budget officials.

"We did not allow OMB to push us into a decision we were quite certain was outside the boundaries of the law," Browner said in an interview. The Clean Air Act, she added, creates "a moral and ethical commitment that we're going to let the science tell us what to do."

Asked for a comment yesterday, EPA spokesman Timothy Lyons said the agency had complied with the Clean Air Act. "The secondary standard we set is fully supported by both the law and the record, and it is the most protective eight-hour standard ever for ozone."

When asked about Clement's role, White House spokesman Tony Fratto said: "The White House sought legal advice from the Justice Department and made its decision based on that advice."

The EPA's documents suggest that senior officials and scientific advisers resisted the White House's position. Last year, the agency's Clean Air Scientific Advisory Committee wrote -- using italics for emphasis -- that it unanimously supported the EPA staff's conclusion that "protection of managed agricultural crops and natural terrestrial ecosystems requires a secondary [ozone standard] that is substantially different from the primary ozone standard. . . ."

When the OMB's Susan E. Dudley urged the EPA to consider the effects of cutting ozone further on "economic values and on personal comfort and well-being," the EPA's Marcus Peacock responded in a March 7 memo: "EPA is not aware of any information that ozone has beneficial effects on economic values or on personal comfort and well being."

Lisa Heinzerling, a Georgetown University law professor who specializes in the Clean Air Act, said Dudley's letter to the EPA represents "a misunderstanding of the statute, a misunderstanding of Supreme Court precedent and a misunderstanding of the science as the expert agency understands it."

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