Without worrying about being reelected, President Obama has made some bold and controversial choices in the back half of his presidency. And the latest EPA move is no exception.

On Thursday, the EPA announced it would be strengthening the National Ambient Air Quality Standard (NAAQS) for ground-level ozone, which they say will improve the health of ecosystems and public health, especially for at-risk groups. But while they may have found a happy medium for industry members, environmental advocates hoped for much more.

 Photo Credit: Ben Saren cc
Photo Credit: Ben Saren cc

The new standard for ground-level ozone, which is what forms when emissions from vehicles, landfills, power plants and other industrial facilities react in sunlight, from 75 to 70 parts per billion (ppb). The final rule will go into effect 60 days after its been filed with the Federal Register, at which point all U.S. counties will be expected to be moving towards keeping ozone levels below 70 ppb. By 2017, if any county still has ozone levels over 70 ppb, the EPA will deem it a “nonattainment area,” and states will then have to figure out how to reduce pollution in these counties.

It comes quickly on the heels of Obama’s Clean Power Plan, which he announced in early August. For many industry groups that’s a bit too soon. But like the Clean Power Plan, this choice is being hailed as a modest step in the right direction that environmental groups wish had gone further. As The Washington Post wrote, it’s a tricky needle that the federal agency is trying to thread here:

The issue of how to regulate smog, which can cause or aggravate such health problems as asthma and heart disease and is a suspect in premature death, has been a contentious one for decades. While the determination is supposed to be made solely on scientific concerns rather than economic ones, any lowered limit carries enormous economic consequences for states and cities across the nation. Communities that consistently fail to meet the standard could eventually face restrictions on certain kinds of industrial development.

But after waiting four years since President Obama delayed the rule, there was still some hope that the smog rule would carry a bit more water when it finally got here.

“The current standard we have which is 75 ppb was set by the Bush administration—one of the worst environmental administrations in the country’s history. So when you elect someone like President Obama who promises real progress on the environmental front, and all you get 7 years after the Bush administration set its awful standard is what is essentially a six percent reduction, and the EPA is being dragged kicking and screaming, and needs a court order to do it’s job, it’s disappointing,” said Shawn Collins, environmental lawyer and author on Pollution Law Watch. “Fundamentally what you see is an EPA and administration afraid to do its job. They should be enthusiastic; that’s why they’re there!”

For Collins, and other environmentalists, this move represents the federal government being “hamstrung by industry.” The EPA’s own scientific advisory panel reportedly recommended a limit between 60 and 70 ppb, and the American Lung Association agrees. And while Collins concedes that industry is a voice that must be heard, he doesn’t see any reason why it should dominate the discussion for environmental issues, when he says these issues disproportianetly affect the low-income population.  

And though it will probably undergo some litigation, unlike the Clean Power Plan the rule as it sits now is likely what concerned parties should expect to be dealing with down the line.

“I really don’t see much option for litigation; certainly not anything beyond meaningful token opposition,” said Collins. “It’s hard to make much of a legal case out of what is essentially a [small] reduction in smog levels. I don’t see that kind of argument having much legal action. I would foresee environmentalists having a much greater motivation to challenge this, but even though I think this is a morally unacceptable standard I don’t see a legal challenge from environmentalists having success either.”

Indeed—for better or worse—this is the standard the U.S. is now on a trajectory towards, no matter what happens in the 2016 election.

“These decisions take years of work within the agency; there’s a tremendous administration record built defending the EPA’s discretion in defining this number, and NAAQS [National Ambient Air Quality Standards] tend to only go one way, they only get more strict,” said Patrick Traylor, a partner with Hogan Lovells, whose primary interest with the ground-level implementation. “I can’t think of a single example where some administration came in and promulgated a NAAQS that had been finally approved before.”

For those who are worried about the implications on their business, Traylor says the EPA is consciously grandfathering in all permit applications made before Thursday, and that’s not something he sees changing through either a new president or the expected litigation.

“I don’t think we’re going to see the kinds of holds out under [past EPA] rules…This is a nationwide rule that’s set across the entire country, and may need to be some amendments to start implementation plans. But it’s not one of those things where states can ignore new standards,” said Traylor. “Facilities that have not gotten in applications by [Thursday] will need to begin thinking about thow they are going to comply with the new standard in their permitting.”