Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma

28 Pages Posted: 8 Jul 2015

See all articles by Thomas Owen McGarity

Thomas Owen McGarity

University of Texas at Austin - School of Law

Date Written: 2015

Abstract

The elusive interaction between science and policy has dominated risk-based standard setting since the dawn of the environmental era. This is attributable in part to the fact that the regulatory agencies operate on the frontiers of scientific knowledge and in part to Congress's choice of vague language to describe the level of expected protection. This interaction is especially apparent in the Environmental Protection Agency's (EPA's) efforts to promulgate and revise national ambient air quality standards (NAAQS) under ยง 109 of the Clean Air Act - where the EPA has navigated the boundaries between science and policy in ways that sometimes appear arbitrary or inconsistent to outside observers. The history of the EPA's most recent revision and attempted re-revision of the primary NAAQS for photochemical oxidants (ozone), in which two EPA Administrators from different political parties reached different conclusions on the same administrative record, offers a unique perspective on the roles of science and policy in environmental decision making.

Drawing on the ozone "rulemakings" as a case study, this Article will explore how science and policy interact in promulgating NAAQS. After providing an introduction to the NAAQS standard-setting process in Part II, Parts III and IV describe the EPA's 2008 revision to the ozone NAAQS and its reconsideration of the 2008 standard in 2009 through 2011. Part V then draws on the case study and the relevant academic literature to explore the roles of science and policy in environmental decision making. Part VI examines the critical question of what policy should guide the EPA's resolution of science-policy questions in NAAQS standard setting. Part VI also addresses arguments that the EPA's approach to NAAQS standard setting is incoherent because it does not provide a rational approach to determining how much risk is too much in the context of non-threshold pollutants like ozone. This Article concludes that the EPA's traditional approach to NAAQS standard setting is neither incoherent nor irrational, and it is easily adaptable to non-threshold pollutants.

Keywords: science, policy, risk-based standard setting, regulatory agencies, EPA, NAAQS, ozone, environmental decision making, ozone rulemakings, nonthreshold pollutants

Suggested Citation

McGarity, Thomas Owen, Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma (2015). Texas Law Review, Vol. 93, 2015; KBH Energy Center Research Paper No. 2015-10. Available at SSRN: https://ssrn.com/abstract=2628278

Thomas Owen McGarity (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

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