Politics & Policy

Regulating to Infinity and Beyond

The EPA's new ozone standard.

Gridlock over climate-change policy has dominated the headlines for the last few years, but workaday environmental regulation has continued steamrolling along, mostly under the radar. That changed last week when the Environmental Protection Agency proposed a new federal standard for ozone air pollution — one that will turn most of the nation into a Clean Air Act “non-attainment” area, in many cases permanently.

The Clean Air Act already pervades Americans’ work and personal lives in ways both obvious and subtle. But the current system will seem a libertarian paradise compared to the brave new world we’re about to enter. The EPA’s new standard will greatly increase regulatory burdens in areas that already violate the ozone standard, and will expand the Byzantine Clean Air Act planning system into large areas of the country that have never been subject to them.

Due to relatively low ozone levels during the last few years, only 19 percent of the nation’s metropolitan areas violate EPA’s current eight-hour ozone standard of 85 parts per billion, down from 40 percent just a few years ago. Non-metropolitan counties — those that include only rural areas or smaller cities — are in even better shape, with only a four-percent violation rate. Absent a tougher standard, this would have meant that many areas would shortly be getting out from under some of the Clean Air Act’s most odious requirements.

With the new standard, however, non-attainment will become the norm, rather than the exception. EPA is proposing a standard somewhere in the range of 70–75 ppb. Based on current ozone levels, this would put 67–87 percent of metropolitan areas in violation, and 39–72 percent of non-metropolitan counties.

In a press conference this morning, EPA administrator Stephen Johnson stressed repeatedly that the science demonstrates the need for a tougher ozone standard to protect public health. But if anything, what has become clear over the last several years is that ozone at current levels is having, at worst, a miniscule effect on Americans’ health and that the current standard provides safe air with plenty of room to spare.

Estimates by EPA’s own scientists indicate that going from current ozone levels to full national attainment of the proposed 70 ppb standard would reduce hospital visits for asthma and other respiratory diseases by only a few tenths of a percent. You won’t find this tiny benefit explicitly mentioned or calculated in any government reports, but you can calculate it from the data they do provide.

But even this is an exaggeration, because the estimate excludes contrary evidence. For example, a study of California’s Central Valley sponsored by the California Air Resources Board (CARB) found that higher ozone was associated with fewer hospital visits. Both CARB and EPA omitted this study from their technical documentation to justify a tougher ozone standard.

Ozone also can’t be causing people to develop asthma. Asthma prevalence has nearly doubled during the last 25 years, but ozone and every other air pollutant sharply declined at the same time. Even direct attempts to link air pollution to asthma have come up empty. CARB and researchers from the University of Southern California tracked thousands of children from ages 10 to 18. Children who grew up in communities with the highest ozone levels in the country had a 30-percent lower risk of developing asthma when compared with children in areas with background ozone levels. The same study also showed that growing up in areas that exceed the current 85 ppb ozone standard 120 days per year has no effect on lung growth or capacity.

The tiny effects of ozone shouldn’t be surprising. All over the nation, hospital visits for asthma are lowest in July and August, when ozone is highest. And the lowest asthma rates in the world are found in developing and ex-Soviet countries with awful air pollution, while Western countries with the world’s cleanest air have the highest asthma rates.

Perhaps the most serious claim leveled at ozone is that it kills thousands of people prematurely each year. But, like most other claims of harm from low-level air pollution, this one rests on indirect evidence from so-called “observational” epidemiology studies — studies in which researchers look for correlations between air pollution and risk of death in large groups of people. A wealth of evidence now shows that observational studies give spurious results, often “finding” effects that aren’t really there, and producing results that reflect researchers’ expectations, rather than reality.

Perhaps not surprisingly, regulators, environmentalists, and most air-pollution epidemiologists have ignored the problem. They point to the thousands of observational studies that have reported a positive association between low-level air pollution and risk of death as proof that the harm is real. But repeating an invalid methodology over and over again doesn’t improve its validity.

Animal studies also suggest real-world ozone exposures aren’t deadly. Researchers have been unable to kill animals even with long-term exposure to ozone at ten times the levels found in the most polluted American cities.

Another EPA tack is to claim that laboratory evidence with human volunteers provides and additional demonstration that the current ozone standard doesn’t provide adequate protection. These laboratory studies usually involve having college students breathe controlled concentrations of ozone or filtered air while exercising vigorously.

What the EPA doesn’t mention is that because of differences between the way ozone is measured in the lab and at outdoor compliance monitors, the real ozone levels in these studies are at least 50-percent greater than the current ozone standard. And even then the volunteers have to work out for five hours before ozone elicits even a small change in lung function.

Incidentally, one of the reasons college students are used in these studies is that children, the elderly, and people with respiratory diseases — the ones who are supposedly most at risk from ozone — can’t work out vigorously enough for long enough to elicit the desired health effects.

Despite the evidence, the air pollution propaganda machine marches on. We hear continually that children, the elderly, and those with respiratory diseases are “sensitive” to and especially “at risk” from air pollution. Medical doctors volunteer for the American Lung Association and other environmental groups to “educate” people about the dangers of air pollution. Local officials issue “code red” and “code orange” alerts when ozone exceeds federal standards, creating the false appearance that going outside is hazardous. The number of alerts increases each time EPA tightens the standards, creating a false appearance of increasing air pollution, even as air quality continues to improve. EPA’s new standard is so stringent that most cities will soon have dozens of ozone alerts each summer, compared with somewhere between zero and a handful in most places today.

What explains this relentless exaggeration of environmental risks? Regulators’ and environmentalists’ powers and budgets depend on the continued public perception that there is still a serious and urgent problem to solve. The conflicts of interest inherent in the regulatory system allow EPA to act on this incentive.

EPA sets the nation’s air-pollution health standards. But this means that federal regulators decide when their own jobs are finished. Imagine a company that gets to decide how much of its product customers must buy. That’s EPA. Federal and state regulators’ also provide millions of dollars a year in funding to environmental groups, which use the money to augment fear of pollution and agitate for expansion of regulators’ powers.

Regulators are likewise major funders of the health research intended to demonstrate the need for more regulation. Government officials decide what questions are asked, which scientists are funded to answer them, and how the research is portrayed in official reports. Researchers who believe low-level air pollution is a serious threat and who report greater harm are probably more likely to attract this research funding and to be picked to sit on EPA advisory panels. Scientists who choose a career in environmental health research are also self-selected for environmentalist ideology. Many of these researchers have explicitly associated themselves with environmental groups and causes.

With its new ozone standard, EPA is taking these incentives to their logical conclusion. The standard is so stringent that it is likely to be unattainable in many areas of the country. Much ozone is natural or transported from other countries. Ozone from these “background” sources is high enough in some areas — certainly Los Angeles, but probably several areas in the eastern half of the country as well — that the standard will be unattainable, even with a complete elimination of all human-caused ozone-forming emissions. Whatever else the new standard does, it will make EPA a growth business for decades to come.

The stringency of the standard ensures that attaining it will impose enormous direct costs on the American people. But that’s only the beginning. The Clean Air Act requires that non-attainment areas submit implementation plans to EPA that demonstrate compliance with the standard by some future deadline. But because attaining the standard will require elimination of nearly all current emissions, most areas will find themselves prohibited from expanding roads to relieve congestion and from adding new employers that produce any ozone-forming emissions. Regulators’ and environmentalists’ gain will be our loss.

Environmentalists and many newspaper editorial boards have relentlessly pilloried President Bush for ostensibly “rolling back” the Clean Air Act and causing increases in air pollution. Meanwhile, back in the real world, air pollution continues to decline and the Bush EPA has imposed the nation’s toughest-ever air-pollution standards and regulations, going far beyond where the Clinton administration ever sought to tread. Perhaps most ironic, the Bush administration has justified this vast expansion of federal power over Americans’ lives based on the same spurious health claims through which environmentalists and regulators maintain unwarranted public anxiety about environmental risks.

Joel Schwartz is a visiting scholar at the American Enterprise Institute.

Further Reading

Jonathan Adler, “Rent-Seeking behind the Green Curtain,” Regulation, Fall 1996.

Randall Lutter and Richard Belzer, “EPA Pats Itself on the Back,” Regulation, Summer 2000.

Randall Lutter, “Is EPA’s Ozone Standard Feasible?” AEI-Brookings Joint Center for Regulatory Studies, December 1999.

Sam Peltzman, “Regulation and the Natural Progress of Opulence,” AEI-Brookings Joint Center for Regulatory Studies, 2004.

David Schoenbrod, Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People (New Haven: Yale University Press, 2005).

David Schoenbrod, “Putting the ‘Law’ Back into Environmental Law,” Regulation, Spring 1999.

Joel Schwartz, “Air Pollution and Health: Do Popular Portrayals Reflect the Scientific Evidence,” Environmental Policy Outlook, no. 2, 2006.

Joel Schwartz, “Air Quality: Much Worse on Paper than in Reality,” Environmental Policy Outlook, May-June 2005.

Bruce Yandle, “Bootleggers and Baptists in Retrospect,” Regulation, Fall 1999.

Joel Schwartz is a visiting fellow at the American Enterprise Institute, where he studies air pollution, climate change, and other environmental health, energy, and transportation issues. He is the author ...


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