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EPA Ozone Standard Likely to Lead Congressional Action in New Congress


With widespread bipartisan concern from state and local officials from across the country regarding Environmental Protection Agency’s (EPA) 2015 ozone standard, the new administration and Congress are likely to make addressing the standard a top priority in the regulatory reform agenda.

Just this past week, Senator Jeff Flake (R-AZ), introduced an amendment that would have both delayed the enforcement of the 2015 National Ambient Air Quality Standards (NAAQS) for ozone until 2025 and called for new standards to be set. Shortly thereafter, members of the U.S. business community once again pushed for a reasonable implementation schedule at an EPA public hearing. The core argument mirrors Senator Flake’s: it makes no sense to implement the 2008 standards concurrently with the 2015 NAAQS because air quality gains would be made under the 2008 standard anyway.

Even though the Flake amendment did not come up for a vote, it was, in many ways, the ambitious solution the U.S. business community has been looking for. The amendment would allow regulators to draft new standards that are more reasonably tailored to what states are capable of achieving. This would be a vast improvement from the 2015 ozone standards which, as the American Petroleum Institute pointed out in this week’s EPA hearing, are entirely unrealistic because “the 2015 Ozone NAAQS approaches background levels in some areas.”

Several states, including Arizona, Wisconsin, and Texas, are actively suing EPA because of its total failure to consider background ozone when drafting their 2015 standard. These states argue that,

“This model of rulemaking does not accord with the Clean Air Act, which demands that NAAQS be achievable. To abandon that expectation and instead impose standards that would require cessation of human activity across large parts of the country is either an abuse of discretion or proof that EPA’s construction of the Act does not reflect an intelligible principle.”

Senator Flake may have been the first to put forward a legislative solution in 2017, but given the unattainable nature of the 2015 NAAQS, we suspect that he may not be the last. Feasibility aside, the economic cost of implementing two standards simultaneously is a major cause for concern. Mary K. Martin of the U.S. Chamber of Commerce testified to this very fact at the January 12 EPA hearing:

“Requiring states now to implement both standards simultaneously is a waste of resources and overly burdensome. It may also result in some state and local areas facing adverse impacts in terms of stymied economic development and lost job creation.”

The impact of these EPA ozone regulations are clear – increased costs, reduced growth, and less job creation throughout the economy, including among small businesses. Due to all of these reasons, the Center for Regulatory Solutions looks forward to working with the 115th U.S. Congress and the Courts as they seek solutions to the expensive and unworkable 2015 standard.

About CRS

The Center for Regulatory Solutions is a project of the Small Business and Entrepreneurship Council, a 501c(4) advocacy, research, education and networking organization dedicated to protecting small business and promoting entrepreneurship. For twenty-three years, SBE Council has worked to educate elected officials, policymakers, business leaders and the public about policies that enable business start-up and growth.