The Omnipotent Executive Unilaterally Repeals the Clean Air Act

I testified yesterday morning at a hearing on EPA proposed air quality standards for soot and particulates. It's a sad moment -- the government, which is supposed to keep us safe, has proposed a rule which will condemn thousands of Americans to an avoidable, premature death -- and its justification is that it does not know precisely how many thousands it is killing, and it cannot save their lives without cleaning up "innocent" soot as well as "guilty" soot. (EPA's actual words are "the Administrator has placed great emphasis on the need to establish a standard that is neither too strong nor too weak."

It's an odd kind of family values; protecting" innocent" pollution is more important than saving innocent lives.

Bear with me. It gets worse. The rule has three major elements.

First, EPA is proposing, for the first time, to establish air quality standards for SOME Americans only. Apparently the Agency (coached by OMB and the White House) believes that the 46 million Americans who live in rural America either don't have lungs, or have lungs that work differently than those of urban and suburban Americans. EPA is proposing that the air quality protection it is establishing from soot and particulates apply ONLY to urban and suburban areas, places with a population of 100,000 or more. Otherwise, EPA will actually shut off air quality monitors so that no one will ever know what rural Americans are breathing.

Second, dangerous particulate pollution like mercury, copper, cadmium, pesticides, asbestos, copper, pesticides, arsenic, lead, and zinc will not be regulated if they come from mines or agriculture. Not only will EPA not protect citizens from such pollution if it comes from mining wastes or agricultural operations; Americans will not be able to use the regulatory process and the courts to defend themselves.

Third, even in urban areas, and even from industrial sources, pollution will be allowed at levels strongly opposed by EPA's independent scientific advisory bodies, and its own in-house scientists. The reason? Again, the belief that since science cannot determine precisely how many lives would be saved by a more protective standard, there is not enough "scientific evidence" to support protecting the public health. The science on this rule has been abused so terribly that it became the poster child in a TIME magazine cover article on the abuse of the scientific process by the Administration.

At the hearing in San Francisco EPA heard from over 90 witnesses opposed to the rule -- and only a handful who wanted to allow particulate pollution to continue unchecked. (There was similar opposition in Philadelphia and Chicacgo.) One eleven-year-old boy from San Bernadino with asthma put the issue poignantly: "the government says that the air is safe. If the air is safe, how come it makes me sick." (In their testimony, the Children's Health Protection Advisory Committee" warned EPA that "the health of children was neither adequately nor explicitly considered in determining the proposed standards."

But while the witnesses and the media have bored in on the public health outrage represented by the soot rule, few have noticed the enormous executive power grab involved. The Clean Air Act, in one of its clearest and most heavily lobbied and litigated provisions, says that EPA MUST set air quality standards at the national level, at a level which will protect ALL Americans, with "an adequate margin of safety."

Repeatedly polluters have tried to persuade Congress and the courts to weaken this rule; just as repeatedly Congress and the courts have refused. So EPA's statutory authority only allows it to consider the public health in setting standards -- no other factor may be considered. (EPA can consider other factors in setting deadlines for meeting standards -- but not in setting them. Air that attains air quality standards should be safe for all Americans, not just some.)

In this rule making the Administration is announcing that it won't protect all Americans -- rural folks don't count. It admits there is no margin of safety, and says it didn't want one -- it gave equal weight to making sure it wasn't "too strong" as it did to ensuring it wasn't "too weak."

If this rule stands, then the President can just rewrite laws, regardless of how clearly Congress drafts them, or how often it upholds them. This is the unitary, unilateral, and virtually ominipotent presidency Dick Cheney has always dreamed of.