The EPA’s Premature Proposal on Particulate Matter: Highlights from CEI’s Comment to the EPA

Photo Credit: Getty

The Environmental Protection Agency (EPA) is jumping the gun by reconsidering the existing particulate matter (PM) air quality standards.

Under the Clean Air Act, the agency is required to review, and if appropriate, revise these standards on a five-year schedule.  At the end of 2020, after a thorough process, the EPA finalized its latest review and decided to retain the existing standards. 

But just six months later before the “ink could dry,” the agency announced its decision to reconsider the PM standards.  In January, the EPA published a proposed rule that would make the primary annual standards for fine particles (PM2.5) more stringent.   

My colleague Marlo Lewis and I submitted a comment in response to the EPA’s proposed rule.  Here are some highlights from the comment:

The EPA Should Learn from the Ozone Reconsideration Process.  The EPA’s decision to reconsider the standards is a discretionary decision that is distinct from how the agency should set the standards. A lot can be learned from the agency’s decision to reconsider the 2008 ozone standards during the Obama administration.  In the comment, we explained: 

Instead of following the five-year review process established by Congress, the agency decided to propose a rule revising the ozone standards three years ahead of schedule.  In 2011, at the behest of President Barack Obama, OMB directed the EPA to withdraw what were going to be new and stricter ozone standards than the then-recently finalized 2008 standards.

President Obama was concerned with the economic recovery and trying to reduce regulatory burden.  He also didn’t want to ask “state and local governments to begin implementing a new standard that will soon be reconsidered.”  These same concerns apply now.

The current process also has implications for the application of sound science: 

If the EPA simply waited as it should to review, and if appropriate, revise the PM standards, keeping with the five-year time period, then it could do so based on an [Integrated Scientific Assessment] ISA that includes a newer and more extensive assessment of the science.  Instead, the EPA is rushing to revise the primary annual PM2.5 standards based on the old 2019 ISA and a very limited supplemental document.   

Similarly, in 2011, the Obama administration pointed out that the EPA’s ozone reconsideration process would be relying on outdated data.  If the agency followed the five-year schedule for ozone, it could have the “best available science.”

The Purge of the Clean Air Scientific Advisory Committee (CASAC).   CASAC plays an important role in helping to set the PM standards. In 2021, the EPA took a shocking action in connection with CASAC that taints this entire reconsideration process:

On March 31, 2021, EPA Administrator Michael Regan dismissed all of the advisers from CASAC, as well as another statutorily required panel, the Science Advisory Board (SAB). Taking such unprecedented actions was initially being pushed in 2020 by former EPA employees opposed to Trump administration policies.  John Graham, who had led the EPA’s disbanded SAB, stated after this purge: “Now for the first time in the agency’s 50-year history, we have an administrator interested in scientific advice only from those scientists he has personally appointed.”

The dismissals took place before the agency announced its decision to initiate the current reconsideration process in June 2021, setting the stage for a reconsideration with CASAC support…

The proposal to lower the primary annual standard is inextricably bound with the EPA’s indefensible and arbitrary decisions connected to CASAC.  The proposal and the entire rule are arbitrary and capricious because the process informing them was arbitrary and capricious. 

Key Points Regarding the Science and Data.  The comment includes an in-depth look at many of the flaws connected to the science and data used in the proposed rule.  For example, there is a major problem of selection bias in which the agency ignored numerous peer-reviewed studies that don’t support the agency’s conclusions.  As we point out:

To overlook or depreciate peer-reviewed assessments contrary to the agency’s views “entirely fail[s] to consider an important aspect of the problem.” As the United States Supreme Court has explained, such a failure is normally a basis to conclude a rule is arbitrary and capricious.

Another problem is “the EPA does not attempt to address incongruous facts in the agency’s conclusions regarding PM that raise serious doubts about the lethality of PM2.5 at today’s historically low levels.”  One incongruous fact we highlight:

Almost every country in the world has higher PM2.5 concentrations than the United States [U.S. levels are about five times lower than the global average], yet many countries especially in the developed world, do not have lower life expectancies than the U.S.

This doesn’t disprove PM2.5 health effects because many socioeconomic factors influence all-cause mortality risk.  However, this is the type of fact that requires the agency to at least attempt to provide an explanation.   

There are many more important points in the comment that we will highlight in the coming weeks. The bottom line though is what we wrote in the conclusion to the comment:

The American people deserve and expect that the EPA will make any decisions regarding PM in an objective manner based on the best available science.  Unfortunately, the EPA has not met these reasonable expectations and has proposed a rule that is arbitrary and capricious.