Chamber of Commerce’s Dubious Analysis of Clean Air Rules Is Wrong

As the Environmental Protection Agency (EPA) considers strengthening clean air standards for fine particulate matter, or soot, polluters are trying to spread misinformation about potential economic impacts.

In October, my colleague Robyn Winz disproved an overarching polluters’ claim: she went to the source material and demonstrated that not only is it possible to have economic growth (and lower unemployment) along with reduced soot and smog pollution, but that’s what’s actually happened in major metropolitan areas across the United States. Frankly, though we still have progress to make, our country’s more than 50-year record of reducing air pollution while advancing the economy is well established.

Now let’s take another of the polluters’ efforts apart, focusing on a recent “report” the U.S. Chamber of Commerce released in November. (I put “report” in quotes because the document’s text runs only about 5.5 pages, and its analysis is disingenuous and shoddy.)

Because this is a long, detailed post, here’s a quick summary:

• Polluters’ claims about costs are legally irrelevant for setting these clean air standards.
• The current standards allow soot levels that kill people; older Black people are especially harmed. Stronger standards could save 16,000 lives annually.
• Polluters have been pushing the same tired, sky-is-falling arguments forever. And they’ve been wrong forever.
• The Chamber’s claims about the scope of nonattainment designations are wrong because the Chamber ignores that the high soot levels from wildfires can be thrown out from regulatory decisions. The Chamber makes several other errors, too.
• Construction permitting simply doesn’t work the way the Chamber pretends it does. As reality and the law itself prove, the Clean Air Act allows for economic growth, even in polluted areas.
• Polluters can do better at controlling their air pollution.

As an initial matter, any claims made by the Chamber about the cost of new clean air standards are legally irrelevant because these types of standards must be based solely on the health and environmental effects of the pollutant at issue. These clean air standards, formally called “national ambient air quality standards,” cannot take into account purported costs of implementing health and welfare protections, as the Supreme Court held unanimously in an opinion by Justice Scalia.

And note what the polluters aren’t talking publicly about: they aren’t arguing about soot’s deadly toll. They aren’t because they can’t do so credibly. For decades, the EPA has known that soot kills people, and scientific evidence makes clear that it kills people at levels the current clean air standards allow. This is an issue of justice. Studies make clear soot kills Black populations at three times the rate it kills populations of other races. Stronger standards could save 16,000 lives each year. Polluters’ silence on these key issues speaks volumes.

In any event, the Chamber’s perfunctory, sloppy analysis departs from reality in multiple ways. The Chamber’s analysis suggests it doesn’t believe economic growth and cleaner air can coexist. As Robyn already showed, that’s wrong. Plus, the Chamber’s pessimism about American ingenuity and innovation clashes with its claim to represent businesses “that innovate and solve for the world’s challenges.”

Another reason we shouldn’t fall for the Chamber’s pessimism is that groups like the Chamber have peddled these anti-protection lines before. A fancier study in 2015, about purported costs of another national ambient air quality, proved to be deeply flawed, as numerous experts found.

Indeed, as former EPA Administrator Lisa Jackson explained in 2010, polluters have been making the same “doomsday predictions” for decades, even though “history has proven the doomsayers wrong again and again.” The Clean Air Act “creates a ‘virtuous cycle’ in which clean air standards spark new technology — serving our fundamental belief that we can create jobs and opportunities without burdening our citizens with the effects of pollution,” she said.

Many academic studies confirm that the Chamber’s doomsday predictions are incorrect. One succinctly explains, “One defining feature of the research on the costs of the Clean Air Act is that predicted costs of the regulations are often higher than the costs that actually occur.” Another found no “significant negative effects on employment in the tightly regulated L.A. basin” and cited a then-forthcoming study that suggested “local air quality regulations” “probably increased labor demand slightly.”

Getting even more in depth, the Chamber’s “report” has two fundamental premises, and neither holds up to scrutiny. Contrary to its assumptions, (1) air pollution impacts from wildfires in 2023 will not necessarily have legal ramifications for how the standard is implemented and (2) permitting for facility expansion is an entirely workable process for businesses.

First, the Chamber is wrong that 2023 wildfires mean more counties will be designated as nonattainment because of unhealthy soot levels. This claim is incorrect because it ignores that states can seek exceptional event determinations to write off the elevated pollution levels resulting from wildfires, and EPA must and does grant these requests when they meet the Clean Air Act’s regulatory requirements.

The Chamber knows this. It’s no secret that the EPA firmly supports exceptional events determinations. The EPA has provided extensive guidance for and support to air agencies in developing exceptional event demonstrations. In fact, recently the Forest Service, Department of the Interior, EPA, and Centers for Disease Control and Prevention committed to “seek to reduce the impact of emissions from wildland fires on concentrations of particulate matter” and to collaborate to ensure that the EPA’s rules and guidance provide an efficient way to exclude wildfire-influenced air monitoring data from certain clean air regulatory decisions, just like  nonattainment designations.

But wait, there’s more. The Chamber’s claims about the scope of nonattainment designations are not credible for at least three other reasons. The Chamber suggests that the EPA would universally designate as nonattainment those counties “adjacent to” counties with monitors that report air quality violated the new standards (perhaps only in urbanized areas). This is baseless. The EPA has never applied such a robotic approach to designations, but instead has applied a nuanced, 5-factor analysis that looks at much more than what county is next to what. Relevant factors include the sources, amounts, and types of emissions in a county or part of a county, wind and weather patterns, and the geography and topography of the area. Past experience makes clear that EPA has not designated areas as the Chamber suggests it does, but instead makes careful judgments about what counties and parts of counties to include in a nonattainment area, with most soot nonattainment areas consisting of 1-2 counties or partial counties. The Chamber gives no reason to think the EPA would deviate from its well-tested approach.

Also, though the Chamber claims otherwise, designations are virtually certain not to be based on air quality data from 2021-2023. The EPA bases designations on data over a three-year period, with the data going into a calculation that results in a number called a “design value.” The Clean Air Act provides EPA up to two years from a standard’s revision to make designations. EPA has never made designations for soot standards within a year of the standards’ issuance. So, here, if EPA finalized the standards in 2023, EPA’s designations would be due in 2025, and the relevant years for air quality data would be 2022-2024. And, again, wildfire-influenced data can be thrown out.

Then, getting still more technical, the Chamber’s methodology for “calculating” design values diverges far from the official methodology. The Chamber does not base its calculations on actual data for 2023, which is still incomplete, but apparently fills in unknown data with 2022 data. This is not normal. EPA’s rules specify precisely how to calculate design values and how to address missing data. Those rules in no way suggest the Chamber’s methodology has any validity.

Second, the Chamber’s claims about Clean Air Act permitting are wildly exaggerated. Again, even the Chamber should know this. It apparently does not seriously believe its dire headline claims about impacts of nonattainment designations: its “report” repeatedly hedges its claims by referring to things it thinks “may” happen.

The Report’s hedged language is necessary. As history’s shown, the Clean Air Act does not in any way bar economic growth or construction of new industrial facilities in nonattainment areas. To the contrary, it expressly and carefully allows for it. Only large facilities must get permits, and to do so, at base, they must do just two main things. One is meet the “lowest achievable emission rate,” which ultimately depends on real-world experience with sources, based on what the same type of source has achieved or can achieve, considering costs. The other is to obtain emission reductions that offset the new emissions they’ll add. Both these requirements are fair and make sense: if you’re going to put a big new source of pollution in an already polluted area, you should control your emissions the best you can, and you should make sure you’re not going to add new pollution to the area overall.

In making its claims, the Chamber sometimes relies on a report the National Association of Manufacturers (NAM) put out earlier this year. But the Chamber’s reliance is misplaced because the NAM report looked only at a 8 μg/m³ standard, not at the 9 and 10 μg/m³ levels discussed in the Report. And, again, as my colleague Robyn explains, NAM’s report isn’t reliable anyhow.

The Chamber’s wild claims about permitting in attainment areas fare no better. Its concern about “headroom” under a new standard lacks merit in part because it is premised on the Chamber’s overstated, dubious projections of 2023 design values. As explained above, the Chamber’s calculations are not reliable and include air quality data that will not matter for regulatory purposes.

Similarly, permitting for large sources in attainment areas will be eased because the elevated soot levels resulting from wildfires will be written off, contrary to the Chamber’s implicit assumption. As the Chamber acknowledges, permitting for large sources in attainment areas relies on air dispersion modeling. These computer models depend in large part on the data fed into them, including data about ambient air quality. EPA’s guidelines for these models allow for and even encourage writing off the fire-affected monitoring data that the Chamber claims make permitting difficult. Those EPA guidelines explain (with emphasis added) there may be “circumstances which would necessitate modifications to the ambient data record” and that such circumstances “include removal of data from specific days or hours when a monitor is being impacted by,” in essence, exceptional events, like “forest fires.”

Besides, sources that might encounter difficulties obtaining permits due to their projected air quality impacts can secure offsetting emission reductions and receive permits.

Finally, though the Chamber asserts otherwise, it’s hardly the case that all existing facilities already do a good job of controlling their air pollution. As EPA found in early 2023, many industrial facilities may only intermittently run controls or may lack state of the art (or even less advanced) controls.

The fact is that polluters and the Chamber know they can do better. They just don’t want to. But it is time for polluters to do their fair share. That way, we can breathe cleaner air, reduce the disproportionate burden soot pollution places on communities of color, and live longer and better.