The standards chosen by the George W. Bush administration to protect people from smog probably wouldn't hold up in court, EPA Administrator Lisa Jackson says in a new letter to a key congressional ally, giving the best indication yet that the agency is planning to set stricter pollution limits this summer.

Jackson is close to deciding whether to change the national ambient air quality standard for ground-level ozone, the main component of smog. After a series of delays, the agency sent a final rule to the White House Office of Management and Budget on Monday (Greenwire, July 12).

That day, the agency received a well-timed letter (pdf) from Sen. Tom Carper, a Delaware Democrat who chairs the Senate subcommittee on air pollution, asking Jackson to explain why she is rethinking the standards from 2008. Many industry groups and congressional Republicans are asking EPA to leave the Bush-era rules in place, saying it would make more sense to wait until the next review cycle is completed in 2013.

In a response (pdf) dated yesterday, Jackson says it would have been illegal to set the standard outside the range that a board of expert scientists said was necessary to protect human health. It also would have led to more costs for cities and states, which wouldn't have known which standard to shoot for, she said.

"The legal defensibility of the 2008 decision posed major challenges for the federal government given the strength of the scientific record at that time," as well as the letter of the Clean Air Act and the recommendations of scientific advisers. "I decided that reconsideration was the appropriate path based on concerns that the 2008 standards were not legally defensible," she added.

EPA was originally scheduled to finalize the rules last summer, but it asked a federal court for three extensions, fueling speculation that the agency might be harboring doubts about rules that critics say will hurt the economy.

A White House database that tracks the rulemaking process now says the final rule will now be released next month -- in the heart of smog season, when long sunny days and hot temperatures provide perfect conditions for the chemical reactions that cause ozone to form.

In 2006, EPA's scientific advisers recommended an ozone standard between 60 and 70 parts per billion (ppb) after reviewing the latest studies, but then-Administrator Stephen Johnson chose to set it at 75 ppb, down from a standard of 84 ppb that dates back to 1997. Jackson proposed a standard between 60 and 70 ppb last January.

Frank O'Donnell, president of Clean Air Watch, said the new letter sends a strong message about where the agency is heading.

"Unless there is some eleventh-hour political meddling by the White House, it seems clear that ... Jackson intends to follow the advice of the agency's science advisers," he said in an email.

Click here (pdf) to read Carper's letter.

Click here (pdf) to read Jackson's response.

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