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Will EPA’s Ozone Ambitions Reveal More Collaboration with Green Groups?


By Karen Kerrigan

The U.S. Environmental Protection Agency’s collusion with environmental groups and other activist organizations was spotlighted recently by a New York Times investigation into the controversial Waters of the United States (WOTUS) regulation.

But this is just one example of a disturbing trend at the EPA. Moreover, there are troubling signs of the same dynamic playing out in the debate over the EPA’s extremely costly and burdensome plan to dramatically tighten the National Ambient Air Quality Standard (NAAQS) for ozone.

Concern is rising about the EPA’s proposed ozone NAAQS. The National Association of Manufacturers warns it could cost $140 billion a year, “making it the most expensive regulation ever issued by the U.S. government.”  The agency’s proposal is getting more scrutiny on Capitol Hill as well, with two hearings planned this week in the U.S. Senate Environment and Public Works Committee and the U.S. House Science, Space and Technology Committee to discuss ozone and EPA’s “regulatory overreach.”

Anyone with concerns about the EPA’s ozone proposal, or the rest of the agency’s regulatory agenda, should be aware of the following cases and what they reveal about political activist groups and the role they play in setting national environmental policy.


In March 2015, EPA Administrator Gina McCarthy claimed almost 90 percent of public comments received on the WOTUS rule were supportive of the agency’s proposal. But according to the New York Times, the EPA itself “orchestrated a drive to counter political opposition … and enlist public support in concert with liberal environmental groups and a grass-roots organization aligned with President Obama.” The Times highlighted three outside groups involved in the effort to “flood the agency” with comments in support of the WOTUS rule:  The Natural Resources Defense Council (NRDC), Sierra Club and Organizing for Action (OFA).

The Center for Regulatory Solutions (CRS) conducted its own analysis of public comments submitted to the EPA on the WOTUS rule. We found that the NRDC, Sierra Club and OFA used a series of “mass comment” campaigns in which tens of thousands of duplicate statements were sent to the EPA. Altogether, these three groups generated more than 245,000 comments in support of the WOTUS rule. Similar campaigns from other environmental groups yielded hundreds of thousands more mass comments, which McCarthy used to support her claim of public support for the WOTUS rule.

Pebble Case

Like the WOTUS rule, the case of the Pebble Mine in Alaska shows the EPA working closely with environmental groups to dramatically expand its powers under the Clean Water Act and claim widespread public support for doing do.

In 2012, the EPA issued a “watershed assessment” to lay the groundwork for blocking the mine before its developers could even submit a permit application. The EPA claimed “well over 90 percent” of the public comments received supported the agency. But after reviewing the docket, U.S. Rep. Don Young (R-Alaska) found “mass e-mail campaigns from groups that support the EPA’s actions in Bristol Bay accounted for more than 90 percent of the roughly 220,000 comments filed.” The NRDC was the biggest contributor, generating 85,000 comments that were “identical or nearly identical in content and format,” according to a statement from Young’s office.

In 2013, U.S. Sen. David Vitter (R-La.) – then the ranking Republican on the Senate Environment and Public Works Committee – revealed another environmental group was offering the chance of a free trip to Alaska to anyone who submitted comments to the EPA and urged their friends to do the same. “This is a pretty low tactic to try and bribe support of their efforts to preemptively kill a job-creating project,” Vitter told the Washington Free Beacon in reaction to Trout Unlimited’s contest to “[w]in the fishing trip of a lifetime.”

Subsequently, in 2014, a federal judge imposed an injunction against the EPA until allegations of collusion between the agency and environmental groups opposed to the Pebble Mine – including the NRDC – are investigated. For example, when the EPA first issued its watershed assessment in 2012, the EPA’s Office of Water was led by the former co-director of the NRDC’s water program. And according to The Wall Street Journal, EPA e-mails show agency officials “collaborated” with Pebble Mine opponents long before the watershed assessment, a so-called scientific document, was produced.

Clean Power Plan

According to another New York Times investigation, the NRDC wrote the “blueprint” for the Obama administration’s Clean Air Act regulation for carbon dioxide emissions from existing power plants. The so-called “Clean Power Plan” was based on the work of NRDC staff whose influence extends “to the far corners of the Environmental Protection Agency,” according to the Times.

But the NRDC did more than just develop the blueprint. It also joined with other activist groups to generate as many favorable public comments for the rule as possible after its release in June 2014. In fact, the NRDC drew from the same playbook that EPA supporters used a year later for the WOTUS rule.

CRS analyzed the public comments submitted on the EPA’s proposed carbon dioxide regulations for power plants, and found more than 392,000 of them were generated by a series of NRDC mass comment campaigns. Like the WOTUS rule, the NRDC was joined by other groups, including the Sierra Club and OFA. Sierra Club’s mass comment campaigns generated more than 183,000 comments. Meanwhile, OFA generated roughly 488,000 duplicate comments. Taken together, the NRDC, Sierra Club and OFA generated more than 1 million comments supporting EPA through mass-comment campaigns.

That is more than four times the number of comments these groups generated for the WOTUS rule, which was profiled by the Times as an example of “manufacturing” the appearance of public support.

The rollout of the Clean Power Plan also revealed close ties between the Obama administration and another outside group – the American Lung Association (ALA). In June 2014, McCarthy and President Obama even participated in an ALA telephone briefing on the new power plant rules. But according to The Washington Times, internal EPA e-mails show the NRDC was pushing the ALA to lead the campaign in favor of the power plant rules, based on polling that showed global warming policy needed to be recast as a solution to local air pollution to gain popular support.

In keeping with the NRDC’s guidance, the ALA would soon take a leading role in the campaign to dramatically tighten the ozone NAAQS.


While the efforts to unravel the EPA’s decision-making process continue, the agency’s ozone NAAQS proposal has some troubling parallels with earlier cases of collusion between the Obama administration and environmental activist groups.

In November 2014, the EPA proposed tightening the ozone NAAQS from today’s 75 parts per billion (ppb) to the 65-70 ppb range. The agency also agreed to take comment on proposals as low as 60 ppb – a level that approaches background concentrations and is therefore favored by groups like the ALA and NRDC.

The EPA repeatedly cited asthma prevention for justifying the rule, even though historical data on air quality and public health clearly shows recent reductions in ozone have not led to reductions in asthma cases. In fact, as CRS has previously shown using the Obama administration’s own data, ozone has decreased yet the number of asthma patients in the U.S. has increased by millions since 2001.

In May 2015, the NRDC came to EPA’s aid with the “Sneezing and Wheezing” report, which claimed more than 100 million Americans face higher asthma and seasonal allergy risks due to ozone and global warming. The NRDC document followed an earlier “State of the Air” report from the ALA which supported the EPA’s use of asthma to justify tightening the ozone NAAQS. The ALA even cited an EPA prediction that a 60 ppb ozone standard would prevent many thousands of asthma attacks.

In addition to supporting the EPA’s talking points on asthma, outside groups have once more worked hard to manufacture the impression of widespread public support for the agency. As before, NRDC, Sierra Club and OFA all launched mass comment campaigns – and so did the ALA. CRS analyzed the public record and found almost 17,000 comments generated by the NRDC, almost 74,000 comments generated by the Sierra Club, more than 28,000 comments from OFA and more than 4,700 comments from the ALA. Taken together, the four groups generated more than 124,000 mass comments in support of the EPA.

Given the EPA’s track record, we should all be highly skeptical of the agency’s rulemaking process. And specifically we need to be deeply concerned about the possibility of well-connected environmental and political groups setting an ozone standard that cannot be justified factually, much less economically. In fact, based upon EPA’s hand in helping to spearhead special-interest driven regulation, the questions for the agency regarding its ozone NAAQS will only get tougher from here.

Karen Kerrigan is president & CEO of the Small Business & Entrepreneurship Council (SBE Council). The Center for Regulatory Solutions is a project of the Council.