Lydia Wegman/RTP/USEPA/US 

06/18/2007 09:55 PM

	

To

afraas@omb.eop.gov, rjohansson@omb.eop.gov, mschwab@omb.eop.gov

cc

Robert Meyers/DC/USEPA/US@EPA, Steve Page/RTP/USEPA/US@EPA, John
Hannon/DC/USEPA/US@EPA, Lea Anderson/DC/USEPA/US@EPA, Karen
Martin/RTP/USEPA/US@EPA, Lydia Wegman/RTP/USEPA/US@EPA

Subject









Below are two inserts that I believe Bob discussed with Art.  The first
insert would go in the discussion of the legal framework.  The second
insert would go in the discussion of alternative views at the end of the
level section--I think it's page 237 in the passback we sent you.  We
can discuss this tomorrow if need be.   

          Insert 1

            As Justice Breyer noted in Whitman v. American Trucking
Associations, the requirement to set standards that are requisite to
protect the public health with an adequate margin of safety, ?do not
describe a world that is free of all risk -- an impossible and
undesirable objective.?  531 U.S. at 495 (citation omitted)(Breyer, J.
concurring in part and concurring in judgment).  Rather, 

 

?[t]he statute?s words, then, authorize the Administrator to consider
the severity of  a pollutant?s potential adverse health effects, the
number of those likely to be affected, the distribution of the adverse
effects, and the uncertainties surrounding each estimate. (citation
omitted)  They permit the Administrator to take account of comparative
health consequences. They allow her to take account of context when
determining the acceptability of small risks to health. And they give
her considerable discretion when she does so.

Id. at 495 (Breyer, J., concurring in part and concurring in judgment). 
Thus, for example, the Administrator may ?take account of comparative
health risks,?   that is, to consider whether a proposed rule promotes
safety overall.  ?A rule likely to cause more harm to health than it
prevents is not a rule that is ?requisite to protect the public
health.??  Id. (Breyer, J. noting that EPA has the authority to
determine to what extent possible health risks stemming from reductions
in tropospheric ozone should be taken into account in setting standards
for O3).   

            Insert 2

            Some commenters have expressed concerns related to the
implementation of a more health-protective standard.  For example, the
Agency has heard from some Governors and mayors who, while mindful of
their own obligation to protect the public health of citizens in their
communities, are concerned about the difficulty and economic impacts of
meeting existing and revised National Ambient Air Quality standards.  

 

            The view has also been expressed that the country has
important energy goals as well as the public health and environmental
mandates of the Clean Air Act, and that it is useful to understand the
impacts and interactions of programs designed to achieve these statutory
requirements and policy goals.  For example, the Agency recently
promulgated final regulations pursuant to section 211(o) of the Clean
Air Act, which was enacted as part of the Energy Policy Act of 2005. 
This provision requires the use of 7.5 billion gallons of renewable fuel
by 2012, a level which will be greatly exceeded in practice.  In the
Regulatory Impact Analysis which accompanied the renewable fuel
regulations, the Agency reviewed the impact of this program on emissions
related to ozone, toxics, greenhouse gases, as well as impacts on energy
security.  

 

 

