The Environmental Protection Agency is preparing to re-propose the national ambient air quality standard for ozone. The agency itself found this rulemaking could cost the economy up to $90 billion per year, while the public health benefits are highly uncertain. EPA and its scientific advisers have a serious responsibility to follow the law and the science to arrive at the right decision. Unfortunately, both appear to be coming up short.

Under the Clean Air Act, the Clean Air Scientific Advisory Committee (CASAC) provides scientific advice to the EPA administrator about air quality standards. But few realize, including Dr. Christopher Frey, the chairman of CASAC, that CASAC is required by the Clean Air Act to report on the costs associated with implementing new—and in this case, more stringent—standards.

When it comes to costs, under the Clean Air Act, the EPA administrator simply cannot factor them in when establishing new standards. There is no disputing this point: it was settled unanimously by the Supreme Court in Whitman vs. American Trucking Association. The language of the Act, as the Court concluded, is “absolute.” 

Yet equally absolute is the duty imposed by the Act on CASAC to include economic impacts when it advises the agency on implementing a new standard. All too often, CASAC has ignored this legal requirement in its capacity as adviser to EPA. As the Act reads, CASAC: "shall also…advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of such national ambient air quality standards." (Emphasis added)

Nearly identical language is found in CASAC’s charter. Yet CASAC Chairman Frey interprets this language as discretionary, as evidenced by his remarks delivered to an industry association in January, when he dubbed it a “separate activity,” one that is “not really part of the review cycle for any existing NAAQS.” At the March CASAC ozone review meeting he said it was something that CASAC “simply can’t do” as part of their deliberations. Yet no rational reading of the law supports this view. 

The EPA administrator, and by extension, state officials responsible for complying with new standards (the Supreme Court in Whitman ruled that the law enables “the Administrator to assist the States in carrying out their statutory role as primary implementers of the NAAQS”), not to mention consumers and the rule of law, would be better served if CASAC reported on how a potentially $90 billion rule could adversely affect the nation’s struggling economy. 

Science is also better served if CASAC members discard their personal policy views and adhere to interpreting the best available science. The Administrator deserves an unbiased view of what the science actually says.  Unfortunately, CASAC has at times failed to live up to that standard. 

That was the case during the last 5-year review of the ozone standard. As former CASAC Chair Roger McClelland testified to Congress in 2011, the CASAC Ozone Panel “failed to clarify the distinction between their interpretations of the science and their policy judgment in offering an opinion on the numerical level of the ozone standard. The Panel should have clearly acknowledged that the numerical level they have advocated reflects their personal policy preferences.”

Whether CASAC meets the test of separating policy and scientific views remains to be seen.  Also unclear is whether CASAC could persuade EPA to release underlying data from health studies it uses to assess the adequacy of air quality standards. Thus far, despite numerous requests, a congressional subpoena, and frequent assurances from EPA Administrator Gina McCarthyGina McCarthyTrump’s budget prioritizes polluters over people Trump pulls US out of Paris deal: What it would mean Regulations, farmers and the law MORE, EPA has refused to make that important information available to independent scientists to validate those studies’ conclusions. 

The arguments against releasing that data amount to red herrings. EPA claims that publicizing such data would violate individuals’ privacy, yet there are common protections that scientists routinely employ to shield the identities of research subjects. CASAC should urge Administrator McCarthy to drop her objections and afford the public an opportunity to decide if EPA is relying on the best available information.

The upcoming ozone rulemaking could be the most expensive in EPA’s history.  Indeed, it could be one of the most expensive in the country’s history. Some may argue that the costs may be worth the benefits—but we don’t know if this is true because the agency hasn’t shared the underlying data.  EPA and CASAC should follow the law and sound scientific practice to ensure the ozone rulemaking is worth it.

Neyland is the former deputy administrator of the Office of Information and Regulatory Affairs within the White House Office of Management and Budget, and a senior adviser with The Center for Regulatory Solutions,