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Analysis of S. 2362,
The Air Quality Standard Improvement Act of 2000

S. 2362, introduced by Sens. Voinovich (R-OH), Breaux (D-LA), Inhofe (R-OK) and Landrieu (D-LA), would prohibit putting health first when setting air quality standards.

Emphasis on Cost-Benefit: The bill changes the process for setting air quality standards to put cost-benefit analyses -- and thus costs to polluters -- ahead of other concerns, such as public health or environmental protection.

For each proposed air quality standard, the Environmental Protection Agency (EPA) is to conduct and get public comment on a cost-benefit analysis (and other analyses; see below). The cost-benefit analysis is to be “quantified to the extent feasible and appropriate and otherwise qualitatively described . . . ” [Sec. 3/703(a)]

Limits Consideration of Benefits: When conducting a cost-benefit analysis, “benefits” are listed as “favorable effects” including “social, health, safety, environmental, and economic” components.

However, if the cost-benefit analysis determines that EPA’s initial proposal is not ‘justified’ on economic grounds, the agency “may” promulgate an alternative proposal “at a cost that is justified by the benefits.” When doing so, the definition of benefit is further limited. In a primary national ambient air quality standard, the agency can consider only public health benefits; for other standards, only public health and environmental benefits can be considered.

Broadly Defines “Air Quality” Standard: The bill would apply to a broad range of agency activities, including efforts to require less-polluting fuels, decrease new sources of pollution in areas struggling with poor air quality, reduce interstate ozone air pollution, characterize air pollution risks as a step toward additional air quality improvements, designate a chemical as a pollutant, or reduce pollutants that cross our borders.[Sec. 3/701]

Imposes Additional Regulatory Burdens: The bill mandates additional steps for every standard, requiring EPA to do an analysis and seek public comment for each of the following:

• benefits from compliance with the standard

• benefits from reductions in other pollutants that may be attributed to the standard

• costs of complying with the standard

• incremental costs and benefits of each alternative considered

• effects of pollutant on the general population and, when “relevant and appropriate” and “where data are reasonably available,” on certain subpopulations

• "any risk” that may occur because of compliance

• "other relevant factors” such as uncertainties in the analyses.

Vulnerable Subpopulations: The bill does not require that the special needs and vulnerabilities of certain populations, such as the elderly, children, and residents of minority or low income neighborhoods who are disproportionately at risk from environmental hazards, be taken into account. The bill contains language allowing standards to ignore the populations most at risk.

May Undermine Research and Compromise Patient Privacy: The EPA must base “any scientific or technical conclusions” on data that have been made public, “including the underlying research data.” That is, EPA cannot consider a study’s findings unless the study’s data are made public. This provision may lead to the release of confidential health records of patients participating in the research, discouraging participation in studies, and/or keep the agency from considering a valid study because its authors are protecting the privacy of research subjects.

Positive features of S. 2362:

None: No aspect of this legislation would result in improved environmental health protections for children.

Limitations of S. 2362:

1. Although one of the stated purposes of the bill is to “to promote better resource allocation to ensure that serious risks to air quality are addressed first,” the focus is not on air quality or health risks but on trading the public’s health against the estimated costs to polluters for taking responsibility for the toxicants they have released into the environment.

2. Cost/benefit approaches decrease opportunities to protect health and historically reflect flawed assumptions. Experience shows that cost-benefit analyses customarily overestimate the “costs” and that many benefits cannot be quantified. Technological innovation has almost always resulted in actual costs of compliance being far lower than initial estimates. The protections especially at risk are those difficult to quantify and monetize, such as protecting children from toxicants that may harm health in later life or result in subtle negative health effects. Standards that protect public health and safety would be less likely and would take more time to issue. The assumptions of traditional cost-benefit assessments – e.g. that the future should be steadily discounted or that a person’s value can be adequately measured through wages earned and goods purchased – do not reflect the stake we all have in assuring the health and safety of generations to come. These assumptions underrate the benefits of prevention.

3. The legislation does not recognize children’s unique susceptibilities and exposures nor our responsibility in providing a healthy environment for children. Vulnerable subpopulations would not fare well in a cost-benefit-focused decision-making process. For example, the legislation allows for consideration of “consumer willingness to pay” for reductions in health risks, but not recognition of society’s responsibility to protect those who have no voice and no “ability to pay” -- and their future. The legislation does not describe how to determine a newborn’s “willingess to pay” for avoiding life-long damage to, for example, its fragile developing respiratory system.

4. The legislation allows but does not require the consideration of those most at risk. The impact on vulnerable subpopulations such as children and the elderly could be possibly considered only if “relevant and appropriate” and “data are reasonably available.” In addition to fueling challenges regarding what is “relevant,” “appropriate,” and “reasonably available,” this exclusion discourages data collection.

5. The numerous mandatory analyses required by the bill would place a substantial drain on EPA resources and provide substantial additional opportunities for legal challenges by opponents.

6. This legislation would undermine the public’s right to know about air pollution hazards. Current law requires setting ambient air quality standards at levels that protect public health -- with a margin of safety. Costs are then considered when measures are adopted to achieve the standards. This bill, by considering costs when setting the standard, would provide health protections only to the extent that they are deemed “affordable.” The public would thereby not be informed what levels are truly safe for human health.