to be very contentious including within CASAC.
For example, the members of the CASAC PM
Panel, chaired by George Wolff, had a range of
views on the PM 2.5 standard that was being set for
the first time replacing, in part, the PM 10 standard.
This range of views was clearly articulated in the
CASAC Chair’s letter [97] to the Administrator
by including a Table showing the views of each
individual member of the CASAC Panel. This
approach stands in stark contrast to the approach
of more recent CASAC Panels that have emphasized consensus advice.
The contentious nature of the debate over these
revised NAAQS prompted Administrator
Browner to involve President Clinton. Bachmann
[7] recounts that Administrator Browner had a 1-h
meeting on these standards with the President –
“she reported that the President quickly accepted
her decision and spent much of the time
discussing how to reduce unnecessary burdens in
the implementation process. This resulted in some
of us writing the first draft of a letter that was later
sent by President Clinton [19] to EPA directing
implementation be carried out so as to “maximize
common sense, flexibility, and cost effectiveness.” Not surprisingly, President Clinton [46]
had a role in announcing the tighter standards
which included for the first time a separate
PM 2.5 standard to complement the PM 10 standard
and a shift from a 1-h averaging time to an 8-h
averaging time standard for Ozone.
The issuance of a revised PM NAAQS triggered
the legal case of American Trucking Associations
v. EPA [4]. The Court found “the growing empirical evidence demonstrating a relationship between
fine particle pollution and adverse health effects
amply justifies establishment of new fine particulate standards.” The Court went on to find “ample
support” for EPA’s decision to regulate coarse particulate pollution, but vacated the 1997 PM 10 standards, concluding in part that PM 10 is a “poorly
matched indicator for coarse particulate pollution”
because it includes fine particulates. Subsequently,
EPA removed the vacated 1997 PM 10 standard
allowing the 1987 PM 10 standard to remain in
place along with the new PM 2.5 issued in 1997.
In addition, the three-judge panel held, two to
one, that EPA’s approach to setting the level of the
PM and Ozone standards in 1997 effected “an
unconstitutional delegation of legislative authority.” The Panel found that “the factors EPA uses in
determining the degree of public health concern
associated with different levels of ozone and particulate matter are reasonable.” However, it
remanded the rule to EPA. The Judicial Panel
stated that when the Agency considers these factors for potential non-threshold pollutants “what
EPA lacks is any determinate criterion for drawing
lines” to determine the level at which the standards should be set. The Panel also found that the
Administrator, under the CAA, is not permitted to
consider the cost of implementing these standards
in setting them.
Not surprisingly, the nature of the Circuit Court
opinion resulted in cross appeals being filed on the
several issues and the involvement of the US
Supreme Court. The Supreme Court in February
2001 issued a unanimous opinion upholding
EPA’s position on both the constitutional and
cost issues [93]. On the constitutional issue, the
Supreme Court held that the statutory requirement
that the NAAQS be “requisite” to protect public
health with an adequate margin of safety sufficiently guided EPA’s discretion, affirming EPA’s
approach of setting standards that are neither more
nor less stringent than necessary.
Supreme Court Justice Breyer, who participated in the Whitman v. American Trucking Associations case, is well known and highly regarded
for his opinions and writings on risk assessment
[11, 12]. Thus, it is not surprising that he took the
opportunity in Whitman v. American Trucking
Associations [93] to offer comments on the
standard-setting process and, specifically, the
identification of the level of the NAAQS and
the associated level of health risk. While concurring that EPA cannot consider the costs of
implementing the Standards, he went on to
note – “this interpretation of §109 does not require
the EPA to eliminate every health risk, however
slight, at any economic cost, however great, to the
point of “hurtling” industry over “the brink of
ruin,” or even forcing “deindustrialization.”
(Id. At 494) (Breyer, J., concurring in part and
concurring in judgment) (citations omitted).
Rather, as Justice Breyer explained:
Air Quality Guidelines and Standards
21
For example, the members of the CASAC PM
Panel, chaired by George Wolff, had a range of
views on the PM 2.5 standard that was being set for
the first time replacing, in part, the PM 10 standard.
This range of views was clearly articulated in the
CASAC Chair’s letter [97] to the Administrator
by including a Table showing the views of each
individual member of the CASAC Panel. This
approach stands in stark contrast to the approach
of more recent CASAC Panels that have emphasized consensus advice.
The contentious nature of the debate over these
revised NAAQS prompted Administrator
Browner to involve President Clinton. Bachmann
[7] recounts that Administrator Browner had a 1-h
meeting on these standards with the President –
“she reported that the President quickly accepted
her decision and spent much of the time
discussing how to reduce unnecessary burdens in
the implementation process. This resulted in some
of us writing the first draft of a letter that was later
sent by President Clinton [19] to EPA directing
implementation be carried out so as to “maximize
common sense, flexibility, and cost effectiveness.” Not surprisingly, President Clinton [46]
had a role in announcing the tighter standards
which included for the first time a separate
PM 2.5 standard to complement the PM 10 standard
and a shift from a 1-h averaging time to an 8-h
averaging time standard for Ozone.
The issuance of a revised PM NAAQS triggered
the legal case of American Trucking Associations
v. EPA [4]. The Court found “the growing empirical evidence demonstrating a relationship between
fine particle pollution and adverse health effects
amply justifies establishment of new fine particulate standards.” The Court went on to find “ample
support” for EPA’s decision to regulate coarse particulate pollution, but vacated the 1997 PM 10 standards, concluding in part that PM 10 is a “poorly
matched indicator for coarse particulate pollution”
because it includes fine particulates. Subsequently,
EPA removed the vacated 1997 PM 10 standard
allowing the 1987 PM 10 standard to remain in
place along with the new PM 2.5 issued in 1997.
In addition, the three-judge panel held, two to
one, that EPA’s approach to setting the level of the
PM and Ozone standards in 1997 effected “an
unconstitutional delegation of legislative authority.” The Panel found that “the factors EPA uses in
determining the degree of public health concern
associated with different levels of ozone and particulate matter are reasonable.” However, it
remanded the rule to EPA. The Judicial Panel
stated that when the Agency considers these factors for potential non-threshold pollutants “what
EPA lacks is any determinate criterion for drawing
lines” to determine the level at which the standards should be set. The Panel also found that the
Administrator, under the CAA, is not permitted to
consider the cost of implementing these standards
in setting them.
Not surprisingly, the nature of the Circuit Court
opinion resulted in cross appeals being filed on the
several issues and the involvement of the US
Supreme Court. The Supreme Court in February
2001 issued a unanimous opinion upholding
EPA’s position on both the constitutional and
cost issues [93]. On the constitutional issue, the
Supreme Court held that the statutory requirement
that the NAAQS be “requisite” to protect public
health with an adequate margin of safety sufficiently guided EPA’s discretion, affirming EPA’s
approach of setting standards that are neither more
nor less stringent than necessary.
Supreme Court Justice Breyer, who participated in the Whitman v. American Trucking Associations case, is well known and highly regarded
for his opinions and writings on risk assessment
[11, 12]. Thus, it is not surprising that he took the
opportunity in Whitman v. American Trucking
Associations [93] to offer comments on the
standard-setting process and, specifically, the
identification of the level of the NAAQS and
the associated level of health risk. While concurring that EPA cannot consider the costs of
implementing the Standards, he went on to
note – “this interpretation of §109 does not require
the EPA to eliminate every health risk, however
slight, at any economic cost, however great, to the
point of “hurtling” industry over “the brink of
ruin,” or even forcing “deindustrialization.”
(Id. At 494) (Breyer, J., concurring in part and
concurring in judgment) (citations omitted).
Rather, as Justice Breyer explained:
Air Quality Guidelines and Standards
21