The Ugly Side of Interagency Review: Non-Expert Federal Agency Commenters Tried to Tell Expert EPA That Ozone Doesn't Actually Kill People

Internal EPA emails obtained by CPR though a FOIA request reveals that representatives from one or more of the EPA's peer agencies second-guessed a critical scientific finding undergirding the EPA's then-pending draft final rule to tighten the ozone standard, claiming that ozone is not associated with mortality impacts. The EPA's final proposal rightly disregarded the unsound comments and included information on how reducing ozone pollution saves lives. The rule, estimated to save thousands of lives, was later blocked by the White House. The email provides a rare glimpse at how peer agencies abuse the interagency commenting process by attacking other agencies' rules - often on matters on which they have comparatively little expertise. In the August 3, 2011, email, sent while the draft final rule was still undergoing review at the White House Office of Information and Regulatory Affairs (OIRA), Karen Martin, an EPA scientist who was working on the rule, provided her colleagues her initial impressions on the interagency comments regarding the rule, which OIRA had just recently forwarded to the EPA. Martin noted that some commenters, un-named staff from one of the EPA's peer agencies, questioned the EPA's assumption that higher ozone levels contribute to premature deaths. Martin directly quoted a "set of commenters" who recommended that "EPA remove the assumption that ozone is associated with mortality impacts." The interagency comments themselves are not available publicly and were not included in the batch of documents sent by EPA in response to CPR's FOIA request. While technical-sounding, the assumption about the relationship between elevated ozone levels and premature deaths formed a critical part of the agency's regulatory impact analysis for the rule. (The draft final analysis, which was the subject of the interagency complaints, is available here.) In the regulatory impact analysis, the agency explains that it included this assumption at the recommendation of the National Academy of Science (see page 3). The monetized benefits of preventing ozone-related mortality was to be the second largest source of the rule's benefits (see page 34); thus, the failure to include these benefits would serve only to distort the rule's cost-benefit analysis more. (As practiced, several inherent methodological flaws lead cost-benefit analysis to over-count costs while under-counting benefits, rendering it systematically biased against protective regulations.)