The statute, by its express terms, does not compel
the elimination of all risk; and it grants the Administrator sufficient flexibility to avoid setting ambient
air quality standards ruinous to industry.
Section 109(b)(1) directs the Administrator to set
standards that are “requisite to protect the public
health” with “an adequate margin of safety.” But
these words do not describe a world that is free of
all risk – an impossible and undesirable objective
(citation omitted). Nor are the words “requisite” and
“public health” to be understood independent of context. We consider football equipment “safe” even if its
use entails a level of risk that would make drinking
water “unsafe” for consumption. And what counts as
“requisite” to protecting the public health will similarly vary with background circumstances, such as the
public’s ordinary tolerance of the particular health risk
in the particular context at issue. The Administrator
can consider such background circumstances when
“deciding what risks are acceptable in the world in
which we live.” (Citation omitted).
The statute also permits the Administrator to take
account of comparative health risks. That is to say,
she may consider whether a proposed rule promotes
safety overall. A rule likely to cause more harm to
health than it prevents is not a rule that is “requisite to
protect the public health.” For example, as the Court
of Appeals held and the parties do not contest, the
Administrator has the authority to determine to what
extent possible health risks stemming from reductions in tropospheric ozone (which, it is claimed,
helps prevent cataracts and skin cancer) should be
taken into account in setting the ambient air quality
standard for ozone. (Citation omitted).
The statute ultimately specifies that the standard
set must be “requisite to protect the public health”
“in the judgment of the Administrator,” §109(b)(1),
84 Stat. 1680 (emphasis added), a phrase that grants
the Administrator considerable discretionary
standardsetting authority.
The statute’s words, then, authorize the Administrator to consider the severity of a pollutant’s
potential adverse health effects, the number of
those likely to be affected, the distribution of the
adverse effects, and the uncertainties surrounding
each estimate (citation omitted). They permit the
Administrator to take account of comparative health
consequences. They allow her to take account of
context when determining the acceptability of small
risks to health. And they give her considerable
discretion when she does so.
The discretion would seem sufficient to avoid
the extreme results that some of the industry parties
fear. After all, the EPA, in setting standards that
“protect the public health” with “an adequate margin of safety,” retains discretionary authority to
avoid regulating risks that it reasonably concludes
are trivial in context. Nor need regulation lead to
deindustrialization. Preindustrial society was not a
very healthy society; hence a standard demanding
the return of the Stone Age would not prove “requisite to protect the public health.”
Although I rely more heavily than does the
Court upon legislative history and alternative
sources of statutory flexibility. I reach the same
ultimate conclusion, Section 109 does not delegate
to the EPA authority to base the National Ambient
Air Quality Standards, in whole or in part, upon the
economic costs of compliance.
The case of Whitman v. American Trucking Associations [93] is widely cited for the conclusion
that EPA cannot consider the economic costs of
compliance in the setting of NAAQS. Unfortunately, in my opinion, insufficient attention is
given to the thoughtful guidance of Justice Breyer
on exercising policy judgment informed by science in deciding on an acceptable level of health
risk, a judgment that in turn determines the level
and statistical form of each NAAQS. It is interesting that Justice Breyer’s opinion appeared in
Administrator Johnson’s notice of the Ozone
NAAQS [81], but did not appear in Administrator
Jackson’s “reconsideration” proposal for Ozone
[85] that will be discussed later.
Paradigm Shift
At this juncture, it is appropriate to note that it is
my view that a paradigm shift has taken place in
the selection of the level of each NAAQS over the
past four decades. In my opinion, the paradigm
shift has been driven in part by the changing
nature of the scientific evidence of pollution
effects. In the 1970s, most scientists and regulations viewed the criteria pollutants as having a
threshold in their ambient concentration- response
relationship, sometimes referred to as a hockey
stick function [36, 39]. In contrast cancer-causing
agents have been assumed to have linear, nonthreshold, concentration-response relationships.
In the late 1960s and early 1970s, the available
data on each criteria pollutant were quite modest,
with attention focusing on only a few epidemiological studies. For those few studies, attention
often focused on whether a relative risk on the
order of 2.0 was statistically significant or not. For
22
Air Quality Guidelines and Standards
the elimination of all risk; and it grants the Administrator sufficient flexibility to avoid setting ambient
air quality standards ruinous to industry.
Section 109(b)(1) directs the Administrator to set
standards that are “requisite to protect the public
health” with “an adequate margin of safety.” But
these words do not describe a world that is free of
all risk – an impossible and undesirable objective
(citation omitted). Nor are the words “requisite” and
“public health” to be understood independent of context. We consider football equipment “safe” even if its
use entails a level of risk that would make drinking
water “unsafe” for consumption. And what counts as
“requisite” to protecting the public health will similarly vary with background circumstances, such as the
public’s ordinary tolerance of the particular health risk
in the particular context at issue. The Administrator
can consider such background circumstances when
“deciding what risks are acceptable in the world in
which we live.” (Citation omitted).
The statute also permits the Administrator to take
account of comparative health risks. That is to say,
she may consider whether a proposed rule promotes
safety overall. A rule likely to cause more harm to
health than it prevents is not a rule that is “requisite to
protect the public health.” For example, as the Court
of Appeals held and the parties do not contest, the
Administrator has the authority to determine to what
extent possible health risks stemming from reductions in tropospheric ozone (which, it is claimed,
helps prevent cataracts and skin cancer) should be
taken into account in setting the ambient air quality
standard for ozone. (Citation omitted).
The statute ultimately specifies that the standard
set must be “requisite to protect the public health”
“in the judgment of the Administrator,” §109(b)(1),
84 Stat. 1680 (emphasis added), a phrase that grants
the Administrator considerable discretionary
standardsetting authority.
The statute’s words, then, authorize the Administrator to consider the severity of a pollutant’s
potential adverse health effects, the number of
those likely to be affected, the distribution of the
adverse effects, and the uncertainties surrounding
each estimate (citation omitted). They permit the
Administrator to take account of comparative health
consequences. They allow her to take account of
context when determining the acceptability of small
risks to health. And they give her considerable
discretion when she does so.
The discretion would seem sufficient to avoid
the extreme results that some of the industry parties
fear. After all, the EPA, in setting standards that
“protect the public health” with “an adequate margin of safety,” retains discretionary authority to
avoid regulating risks that it reasonably concludes
are trivial in context. Nor need regulation lead to
deindustrialization. Preindustrial society was not a
very healthy society; hence a standard demanding
the return of the Stone Age would not prove “requisite to protect the public health.”
Although I rely more heavily than does the
Court upon legislative history and alternative
sources of statutory flexibility. I reach the same
ultimate conclusion, Section 109 does not delegate
to the EPA authority to base the National Ambient
Air Quality Standards, in whole or in part, upon the
economic costs of compliance.
The case of Whitman v. American Trucking Associations [93] is widely cited for the conclusion
that EPA cannot consider the economic costs of
compliance in the setting of NAAQS. Unfortunately, in my opinion, insufficient attention is
given to the thoughtful guidance of Justice Breyer
on exercising policy judgment informed by science in deciding on an acceptable level of health
risk, a judgment that in turn determines the level
and statistical form of each NAAQS. It is interesting that Justice Breyer’s opinion appeared in
Administrator Johnson’s notice of the Ozone
NAAQS [81], but did not appear in Administrator
Jackson’s “reconsideration” proposal for Ozone
[85] that will be discussed later.
Paradigm Shift
At this juncture, it is appropriate to note that it is
my view that a paradigm shift has taken place in
the selection of the level of each NAAQS over the
past four decades. In my opinion, the paradigm
shift has been driven in part by the changing
nature of the scientific evidence of pollution
effects. In the 1970s, most scientists and regulations viewed the criteria pollutants as having a
threshold in their ambient concentration- response
relationship, sometimes referred to as a hockey
stick function [36, 39]. In contrast cancer-causing
agents have been assumed to have linear, nonthreshold, concentration-response relationships.
In the late 1960s and early 1970s, the available
data on each criteria pollutant were quite modest,
with attention focusing on only a few epidemiological studies. For those few studies, attention
often focused on whether a relative risk on the
order of 2.0 was statistically significant or not. For
22
Air Quality Guidelines and Standards