By Willfully Confusing “Science” and “Policy” Considerations, CASAC Increases Its Power Relative to EPA
In a previous post, I explained how the technocratic Clean Air Scientific Advisory Council was poised to try to limit EPA’s discretion to revise the national ozone standard by willfully confusing a distinction between “science” and “policy” considerations.
That which was foretold has now come to pass. In a letter dated June 26, CASAC delivered its ozone recommendation to EPA, and it couldn’t be more confusing (by insidious design). I’ve reprinted the pertinent paragraph below; it’s been formatted in order to highlight purposefully obfuscatory language:
In reaching its scientific judgment regarding a recommended range of levels for a revised ozone primary standard, the CASAC focused on the scientific evidence that identifies the type and extent of adverse effects on public health. The CASAC acknowledges that the choice of a level within the range recommended based on scientific evidence is a policy judgment under the statutory mandate of the Clean Air Act. The CASAC advises that, based on the scientific evidence, a level of 70 ppb provides little margin of safety for the protection of public health, particularly for sensitive subpopulations. In this regard, our advice differs from that offered by EPA staff in the Second Draft PA. At 70 ppb, there is substantial scientific evidence of adverse effects as detailed in the charge question responses, including decrease in lung function, increase in respiratory symptoms, and increase in airway inflammation. Although a level of 70 ppb is more protective of public health than the current standard, it may not meet the statutory requirement to protect public health with an adequate margin of safety. In this regard, the CASAC deliberated at length regarding advice on other levels that might be considered to be protective of public health with an adequate margin of safety. For example, the recommended lower bound of 60 ppb would certainly offer more public health protection than levels of 70 ppb or 65 ppb and would provide an adequate margin of safety. Thus, our policy advice is to set the level of the standard lower than 70 ppb within a range down to 60 ppb, taking into account your judgment regarding the desired margin of safety to protect public health, and taking into account that lower levels will provide incrementally greater margins of safety.
In fact, CASAC is acting pursuant to the incentives established by the judiciary. Regarding the setting of Clean Air Act national ambient air quality standards (NAAQS), the D.C. Circuit in Mississippi v. EPA (2013) established a dichotomy between “science” considerations, which are the primary preserve of CASAC (alas), and “policy” considerations, over which EPA has much greater discretion. Under this federal common law regime, CASAC’s advice is controlling when it comes to science matters. As such, CASAC can increase its own power by conflating “science” and “policy” considerations when it delivers its advice.
And that’s precisely what CASAC has done. In the June 26 letter (excerpted above and reposted below), CASAC blends the two concepts. On the one hand, CASAC claims that the dividing line between “science” and “policy” is 70 ppb ozone (“thus our policy advice is to set the level of the standard lower than 70 ppb”). On the other, the letter is infused with language suggesting that “science”/”public health” considerations justify a standard below 70 ppb (see the bold in the above passage from the letter).
FWIW, I predicted this would happen in the immediate wake of the D.C. Circuit’s Mississippi ruling.
Unfortunately, CASAC’s coup d’EPA is bad public policy. There are literally trillions of dollars at stake; by EPA’s own accounting, a 60 ppb ozone would cost about $100 billion per year. CASAC, an unelected body of technocrats, has no business rendering decisions of such gravity for all Americans. Readers of this blog might find it bizarre that I support a relative expansion of EPA discretion. Low as my opinion is of the agency’s political agenda, a CASAC alternative is even worse.