Dive Brief:

• The U.S. Environmental Protection Agency (EPA) on Tuesday proposed to keep National Ambient Air Quality Standards (NAAQS) for particulate matter the same, despite warnings from the scientific community that not strengthening those regulations could be devastating to human health and the environment.

• In the EPA's review of whether to update the standards for particulate matter, which is produced from burning coal and other industrial practices, the agency found "there are important uncertainties in the evidence for adverse health effects below the current standards" and therefore proposed to keep them the same. But last fall, a group of 20 former EPA staff, let go by Administrator Andrew Wheeler in 2018, wrote a 183 page letter to the EPA detailing evidence that not changing those standards could have dangerous health consequences.

• Under the Clean Air Act, the EPA is required to periodically review standards for six primary pollutants, based on human health and environmental impacts. A recent Harvard study found higher air pollution could lead to more COVID-19 deaths, and is contributing to protests from environmental and health experts who say the EPA should not be keeping outdated air quality standards in the midst of a health crisis.

Dive Insight:

President Donald Trump's EPA has been widely condemned by environmentalists and health experts for its actions, particularly during a global pandemic. And the widely reported Harvard study has helped cast an even more critical eye on the administration's policies.

In March, the agency modified its enforcement policies to give power plants and other regulated entities more compliance flexibility during the COVID-19 shutdown. Also in March, the EPA and National Highway Traffic Safety Administration set new rules to weaken Obama-era fuel efficiency guidelines.

But Wheeler and others at the EPA insist they are still properly mitigating environmental risks, while at the same time providing needed flexibility to industry.

In a press release announcing the proposed nonchanges to the NAAQS for particulate matter, Wheeler touted the United States' leadership on air quality standards.

"The U.S. has made incredible strides in reducing particulate matter concentrations across the nation," he said. "Based on review of the scientific literature and recommendation from our independent science advisors, we are proposing to retain existing PM standards which will ensure the continued protection of both public health and the environment."

Particulate matter 2.5 (PM 2.5) concentrations, or concentrations of matter 2.5 micrometers in diameter and below, fell 39% between 2000 and 2018, while particulate matter 10 (PM 10) concentrations, or concentrations of matter 10 micrometers in diameter and below, fell 31% during that period, according to the EPA.

Determining whether these pollution standards need to be updated involves comprehensive scientific input and evidence, and often those views can be contradictory, Patrick Traylor, who served as deputy assistant administrator for enforcement and compliance assurance during Scott Pruitt's tenure as EPA Administrator, told Utility Dive in an email. He is now a partner at Vinson & Elkins law firm

"These NAAQS reviews are always tough because in the end, a decision has to be made under a statutory deadline in the face of scientific uncertainty: two scientists might give you three opinions on what the decision should be," he said. "So there's always a diversity of scientific opinion and Administrator Wheeler had to make the best possible decision given advice that is conflicting."

Under the Clean Air Act, the EPA can only look at public health and the environment when setting standards on primary pollutants. But other legal experts say the Trump administration is continuing to ignore the advice and sound research of the scientific community in order to reduce costs and regulatory burdens for industry. Some of the biggest emitters of PM 2.5 are coal and gas-fired power plants, though pollution controls installed to meet various air pollution standards have helped to reduce PM 2.5 emissions.

"The Wheeler approach now is to say, 'Well, the science isn't clear enough.' His real motive is the costs are too high, and industry doesn't want it," Patrick Parenteau, professor of law and senior counsel at the Vermont Law School's Environmental and Natural Resources Law Clinic, told Utility Dive.

In October 2018, Wheeler dismissed a 20 member panel of experts on particulate matter. 

The former panel members formed a nongovernmental Independent Particulate Matter Review Panel, and sent their recommendations to the EPA on Oct. 11, 2019, after the agency's draft assessment had been filed in September. The independent panel found the standards should be more stringent "based on consistent epidemiological evidence from multiple multi-city studies."

"Arguments offered in the draft [EPA policy assessment] for retaining the current primary [particulate matter] standards, which among other things, would require disregard of the epidemiological evidence, are not scientifically justified and are specious," the former EPA staffers wrote. Risk assessments find the level of premature deaths related to keeping those standards the same "is unacceptably high," they continue.

Coronavirus connection

More reports have since found the effects of air pollution will lead to more human deaths, particularly during the novel coronavirus pandemic.

A Harvard study released this month found that regions in the U.S. with higher levels of air pollution are more likely to see patients die from the novel coronavirus. An increase of one microgram per cubic meter of fine particulate matter (PM 2.5) will increase the likelihood of death by 15%, the study found.

"The best science is saying if you don't tighten this standard, people will die sooner than they would ordinarily die," said Parenteau. "And on top of that, if we have COVID permanently embedded in the human population … PM 2.5 pollution is going to make that risk and those consequences worse."

The EPA said it looks "forward to reviewing the Harvard study once it is completed and peer reviewed." An EPA spokesperson also noted the agency does not expect any increase in particulate matter emissions as a result of the new enforcement flexibility, which the Harvard study had cited as something that could lead to more particulate matter in the air.

"These authors have misunderstood our guidance. EPA's temporary enforcement guidance is not a blanket waiver of enforcement," the spokesperson said.

The particulate matter proposal has a 60 day comment period, and is expected to be finalized by the end of the year, which seems like too quick a turnaround, particularly in the midst of a health crisis, David Hayes, professor of law and executive director of the New York University School of Law State Energy and Environmental Impact Center, told Utility Dive. 

"You have this standard coming out for public comment right at the end of the first quarter of ... potentially [the Trump Administration's] last year in office ... what exactly is the rush?" he said. "Particularly when we know a lot more information and health information is going to come in because of COVID-19 on the question of respiratory stresses and illnesses, etc."

All this points to a larger pattern of the Trump Administration's attempts to favor economics over science, said Hayes.

"To whom does Wheeler answer when he makes life or death determinations?" said Parenteau. "It's a moral question. It's not just a legal question. … He has the absolute authority, some will argue an absolute duty, to tighten this standard."

Environmental groups were also highly critical of the proposed rule. "This administration is passing up an opportunity to make the air cleaner for millions of Americans — choosing instead to do nothing. That's indefensible — especially amid a health crisis that is hitting people who live in communities with high levels of air pollution the hardest," Gina McCarthy, president and CEO of the Natural Resources Defense Council, said in a statement.

Traylor, Hayes and Parenteau all expect to see litigation on this proposal.

"There will be litigation over the final standard as there always is; the standard will stand or fall based on how well the scientific evidence supports the Agency's exercise of discretion," said Traylor.