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THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES

SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy
September 21, 2011

COST OF COMPLIANCE?

CRISTINE RUSSELL, SENIOR FELLOW, HARVARD KENNEDY SCHOOL BELFER CENTER FOR SCIENCE AND INTERNATIONAL AFFAIRS; PRESIDENT, COUNCIL FOR THE ADVANCEMENT OF SCIENCE WRITING: Welcome to The Forum at the Harvard School of Public Health. Im Cris Russell. Im a longtime science journalist. And Im currently a senior fellow at the Harvard Kennedy School. Our topic today is a controversial one, one in the recent news. Its Smog or Jobs: The Impact of Tighter Ozone Control -- Pollution Control -- on Health and the U.S. Economy. And on September 2nd, in a surprise announcement just before the Labor Day weekend, President Obama asked the EPA to withdraw a controversial air quality proposal that would have tightened the allowable levels of ozone, which is a key component of smog. The EPA had asked for tighter standards to protect the public health, particularly vulnerable Americans from problems such as asthma, lung and heart disease. But the change in the regulation would have thrown hundreds of American counties across the country out of compliance and required a major enforcement action and changes in industry. In postponing the EPAs action until 2013, as part of a regular review, Obama himself cited the need to reduce the regulatory burdens and uncertainty as the economy struggles to recover. And the decision was praised by business groups, and it was decried by environmental and public health groups, who felt that the President and had sided with his advisors and caved into business and special interest. So today, were going to look at this issue, the degree to which it does pit smog and its public health consequences against the U.S. economy and jobs. And The Forum has assembled a very distinguished group of experts to look at the science and the policy questions that the Obama decision raises. Were going to begin with Dr. Douglas Dockery. Hes the Chair of the Department of Environmental Health at the Harvard School of Public Health, and himself a longtime researcher on the health effects of air pollution. And hes going to give us a brief overview of the science of ozone and air quality. Then well follow up with two scientists who have been involved, over the years, in advising the Environmental Protection Agency -- Dr. Rogene Henderson, Scientist Emeritus of the Lovelace Respiratory Research Institute in Albuquerque, New Mexico, who has also done basic research on lung function, and is a former Chair of the EPA Clean Air Advisory Committee from 2004 to 2008. Shell be followed by Dr. Roger McClellan, a leading international expert on toxicology and human health risk. Hes been an advisor to public and private sector groups on these issues of risk and, particularly, air pollution, and is a consulting professor at Duke University. He was also a Chair of the EPA Clean Air Advisory Committee back in 1988 to 92. Not surprisingly, this decision came under scrutiny from outside groups. And we have here today John Walke, Senior Attorney and Director of the Natural Resources Defense Council Clean (NRDC) Air Program. Prior to being at NRDC, he was at the EPA in the Air and Radiation Law Office. And hes also been in private practice, working in this field.

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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Finally, were going to look at the economic impact with David Montgomery, a PhD economist and Senior Vice President of NERA Economic Consulting in Washington. Hes a former Assistant Director of the Congressional Budget Office and former Deputy Assistant Secretary for Policy in the U.S. Department of Energy. So Dr. Dockery, were going to turn to you to give us a quick summary of the scientific issues that are involved with ozone.

OZONE SCIENCE OVERVIEW

DOUGLAS DOCKERY, CHAIR, DEPARTMENT OF ENVIRONMENTAL HEALTH, HARVARD SCHOOL OF PUBLIC HEALTH: Great. Thank you. And good afternoon. So we here at the Harvard School of Public Health have been studying air pollution and its control for about 50 years. And today, I just want to provide some context for this debate about this ozone standard. So ozone is one of six criteria pollutants [http://www.epa.gov/apti/course422/ap5.html] which are defined by the U.S. Environmental Protection Agency. Under the provisions of the Clean Air Act, the EPA administrator is required to establish air quality standards for these criteria pollutants, which protect the health of even the most susceptible in the population. And, moreover, the administrator is required to periodically review the scientific evidence for these air quality standards and revise them in light of the new evidence. While economic costs play a role in developing the plans to meet the standards, the standards themselves are not to be decided based on economic considerations. So, what is ozone? And what are its effects? Ozone is a highly reactive form of oxygen. It rapidly reacts with any surface it comes in contact with, producing oxidative reaction. This can be very damaging to biological tissues and be-- We use ozone to remove pathogens, to kill pathogens in drinking water systems. So you can imagine when we breathe this into our lungs, it can cause inflammation to unprotected tissues. In experimental studies, healthy human volunteers, breathing controlled amounts of ozone, we see reductions in their lung volume. In their flow rates, we see reduced exercise performance. We see respiratory symptoms. And we see short-term inflammation. In observational studies in asthmatics in the community, we see [that] breathing ozone causes shortness of breath and triggers asthma attacks, which would require use of a rescue inhaler or, if not managed, treatment at an emergency facility. On days when ozone is high, we see emergency department visits for respiratory conditions increase. We see respiratory hospital admissions increase. And we see respiratory deaths increase. Recent studies have reported that people living in communities with higher average ozone concentrations have higher death rates from respiratory causes. New evidence suggests that the effects of ozone are not restricted to respiratory conditions. Days with high ozone have been shown to be associated with high heart attacks and other cardiovascular events, and increased deaths from cardiovascular events. Ozone is different from the other criteria pollutants, in that its not directly released out of smoke stacks or tail pipes. Rather, its formed by reactions of sunlight with hydrocarbons and nitrogen oxides in the air. Thus, ozone is produced locally at the-- near the sources of these pollutants. But often, the highest concentrations are often far downwind, tens, hundreds of miles away from the sources of these primary pollutants. Thus, controlling ozone requires controlling emissions from multiple sources, which are often far upwind, in other cities, other states, other regions, or sometimes even other countries. Despite these difficulties, there have been remarkable improvements in air quality in the United States in the past four decades. EPA reports a 30 percent decrease in the national mean maximum daily ozone concentrations between 1980 and 2009. Nevertheless, the fraction of the population living in regions with high ozone are much more frequent than any of the other criteria pollutants. And the American Lung Association has reported that 48 percent of the people in the United States are exposed to ozone levels above the standard. Moreover, while the number of high days have gone down, and the number of violations has gone down, we see that the background concentrations have been increasing worldwide, especially in the cleaner areas, which suggests that

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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the background levels of ozone are increasing around the world. At this time last year, we were recognized in the 40th anniversary of the 1970 Clean Air Act and the creation of the Environmental Protection Agency. We celebrated the enormous strides that have been made in cleaning our environment, and particularly the successes in cleaning the air. In The Forum today, were going to ask, given the strides weve made over the past 40 years, have we gone far enough? And, can we afford to make further improvements in air quality?

EARLIER COMMITTEE ADVICE

CRISTINE RUSSELL: Thank you. Well, were going to turn to Dr. Henderson to start answering that question. Now you are concerned and have been on record as the Chair of the EPA [Clean Air] Scientific Advisory Committee, that the current standard set in 2008 is not low enough to really protect public health. Could you follow up on that and where we are today?

ROGENE HENDERSON, SCIENTIST EMERITUS AT LOVELACE RESPIRATORY RESEARCH INSTITUTE, AND A PAST CHAIR OF THE EPAS CLEAN AIR SCIENTIFIC ADVISORY COMMITTEE: Yes. I was chairing the Clean Air Science Advisory Committee [CASAC] from 2004 to 2008. And our ozone panel, which was made up of the best -- some of the best scientists in the country working on this problem, they came to unanimous consensus that the range that would be -- for the ozone standard that would be protective of public health, would be from 60 to 70 parts per billion. And we gave this advice to the administrator. Our committee is advisory only. And we are there to inform the decision made by the administrator. Administrator [Stephen] Johnson, at that time, chose to set the standard at 75 parts per billion, which was outside the range that we had recommended, but still a reduction from the 84 parts per billion that had been in place before. So our committee wrote a letter to the Administrator Johnson, saying we were pleased he had lowered the standard, but we did not think he had lowered it enough to be protective of public health. And we really reiterated that we felt the standards should be in the range of 60 to 70 parts per billion, and stated that we hoped that our studies and that of the future CASAC panels would further support the fact that the standard is set at the 75 parts per billion was not protective of the public health. So what happened then? Two things began to happen. The new Administrator [Lisa] Jackson, when she came in, looked at this and said, I want to examine this and see whether we need to change that 75 parts per billion--

CRISTINE RUSSELL: And this was under the Obama administration?

ROGENE HENDERSON: Thats right. The new-- The new administrator looked at it and said, Lets reinvestigate this and look at it. And then secondly, at about the same time, a new ozone panel was formed under the Clean Air Science Advisory Committee to begin the normal five-year cycle review of the ozone standards. So there were two groups, internal to the EPA and then the external advisory group, who were looking at essentially the same thing, as, is this standard protective of public health? Administrator Jackson put this forward to Obama, to President Obama, for consideration. And he essentially said, Lets hold off on this, because this is 11. And were going to have recommendations from the next ozone panel committee thats already formed. Its already looking at whats happening. And all the new experimental evidence that -- from what Ive heard -- Im not on that committee, but from what Ive heard, supports the recommendation of the panel that I did chair. And lets wait and see what they recommend in 13. Now I think this is a wise move on the part of Obama, in that if you start changing the standard too often, so we had potentially, having three standards for ozone within five years: in 08, 11 and 13, it could cause confusion among people trying to implement that. And I would reiterate what our committee said to Administrator Johnson, We hope that you will

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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take into account our findings in setting and considering -- you or your successor would take into account our findings in setting the 13 standard. And that is what appears to be happening now.

CLEAN AIR RULES SUCCESS

ROGENE HENDERSON (CONTD): And I just want to emphasize how much I support the Clean Air rules that have benefited us so much from 1970 on. As Doug Dockery has said, its been a big success. We have cleaner air. I dont accept the premise set up by our very jazzy title, Jobs or Smog?, which I dont accept that as a logical premise. Its not either/or; its both/and. I think we can have both clean air and jobs. And that is because industry is very innovative and has skills to change their techniques and their technologies to develop better ways to keep our air clean. And a good example of this is the diesel engine. How many of you have sat behind a big old diesel truck years ago, with the black smoke spouting out. And said, Surely, surely thats not healthy. Well, the regulations that went into effect, and by George, industry knew how to handle that. They cleaned up that engine. They are extraordinarily innovative in what they can do once they have been challenged by our regulation. So, this is an example of having -- you know, we can have good industry and clean air all at the same time. And I think thats the greatest example of how regulations motivate industry to improve their processes.

CRISTINE RUSSELL: But just to wind up, bottom line, you thought more could be done in 2008. And, as far as you know, from the scientific perspective, you still think that the standards should be tightened up?

ROGENE HENDERSON: I think the process is working. A new committee is looking at it. And I think the standards should be set at a health-protective level, which again, I agree between 60 and 70 parts per billion.

OBAMAS DECISION

CRISTINE RUSSELL: Okay. Were going to take another scientific view from Dr. McClellan. Whats your perspective on this?

ROGER MCCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN HEALTH RISK ANALYSIS; CONSULTING PROFESSOR, DUKE UNIVERSITY MEDICAL CENTER; AND A PAST CHAIR OF THE EPAS CLEAN AIR SCIENTIFIC ADVISORY COMMITTEE: Well, my perspective, I share many of the same views expressed by Professor Dockery and by my longtime colleague, Dr. Henderson. Let me first say, its a real pleasure to be here at the Harvard School of Public Health. As I came here today, it brought back many memories of the many colleagues that I have worked with over the years from the Harvard School of Public Health, some of whom are in the room here today. I couldnt help but think of my early days on EPA advisory committees, serving with the late Dr. James Whittenberger, who I think held the same position that Dr. Dockery holds today. So theres no question the contributions of this institution to clean air and public health. The Clean Air Act, as weve already heard, is a very important piece of legislation. It is the national statute, guiding clean air in the United States. Its a complex regulation. A key part of it -- one might call the goalpost, the goal-setting piece -- and that is the setting of National Ambient Air Quality Standards, for these six criteria air pollutants. The Act is very specific in charging the administrator with setting those standards to protect public health with an ample margin of safety. The statute, as it was amended in 1977, also calls for the administrator to seek the advice of scientists,

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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a specific group of scientists, and, as that standard is set. Some ways you can envision this process is one of a train rolling down the track. It rolls. Sometimes it speeds up a bit. Sometimes it slows down. The act specifies that every five years there shall be a review of the science and reconsideration of the standard. Thats the process that Administrator Johnson used. And he concluded, in March 2008, a lowering of the standard from 84 parts per billion, eight hours averaging time -very important to recognize it has an averaging time and a statistical form, basically designed in terms of the peaks. So the actual average concentration of ozone will be much, much lower than the 84. He reduced that to 75. In doing that, he took note of the advice he had received from the Clean Air Scientific Advisory Committee. And he noted that it was a blend of both science and policy judgment. I agree with that. And thus, it was his prerogative -- set to standard at some level -- and he did that [to] 75. I thought that was appropriate. Same time, the train was moving forward with the next review, as Dr. Henderson has indicated. That would have been completed in March 2013. Administrator Jackson came into office. She, in essence, said, Well, if I had been here a year before, I would have made a different policy judgment. I would have set the standard lower. And thus she, in a sense, put out another track, a fast track. Im pleased that, at the same time, the process moved forward in terms of that regular review. Thats been going on, already out there. So she delayed on a number of occasions. Finally sent for the proposal to the White House. And, as customary, the White House reviewed that in terms of the Office of Information Regulatory Affairs in OMB, an office chaired by, again, a Harvard connection, Cass Sunstein. He offered advice back to the President and said, This is an optional standard. It is not required. And, moreover, it is not based on the latest science. The result of that was the decision to not proceed. I think President Obama made a wise decision based on the advice received from Cass Sunstein. And proceed forward. Look at the standard. Theyll have the opportunity in March 2013 to review it. When they do that, one of the pieces of science that I think will be very important to consider, again has a Harvard connection, coming from the laboratory of Dr. Jacob, Daniel Jacob, and his colleagues. And they have revised their views on ozone background levels. Theyve moved from a very loose spatial dimension, essentially what would be the average concentration over half the Commonwealth of Pennsylvania, down to a much closer spatial dimension and, time-wise, to the eight hour. And what they show is that we have background levels of ozone, those peaks coming up to about 60 PPB. So the administrator is going to need to keep that in mind. And, at the same time, I hope she will listen to another voice with a Harvard connection, Supreme Court Justice Stephen Breyer, who in American Trucking v. EPA (www.epa.gov/ ttn/oarpg/gen/courtsum.pdf) gave very thoughtful advice on the setting of the standard.

LEGAL CONSIDERATIONS

CRISTINE RUSSELL: Well were going to leave Harvard for a minute and go back down to Washington. [laughter] Very, very different perspective from our next speaker, Mr. Walke. Obviously, this was the announcement, which had been delayed, this effort by the administrator of EPA, Ms. Jackson, had been going on for some period of time. So it was a little bit surprising to some of those observers in Washington when this Labor Day surprise came about. Often, in Washington, they announce things on Friday when theyre trying to stay out of the news, and particularly a holiday weekend. So you likened it to a bomb going off. And I think one of your colleagues said it was, to use a maybe bad pun, a bad air day for Washington. So give us a little sense of the consequence of this from your perspective for the process, but, more importantly, for the public health.

JOHN WALKE, CLEAN AIR DIRECTOR AND SENIOR ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL: Sure. So let me just offer the Washington perspective of the real politics that drove this decision against the backdrop of the governing legal considerations. This is fundamentally a legal responsibility governed by the Clean Air Act, which says that EPA has to set health standards that are requisite to protect public health with an ample margin of safety.

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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The law gives one person and one person alone the responsibility and duty to make that decision, and that is the head of EPA, Lisa Jackson. Lisa Jackson declared, in a review of the 2008 Bush standard that was prompted by lawsuits by the American Lung Association, and requests that she reconsider those decisions the minute she took office. She declared, in the course of her review, that the Bush standards from 2008 were not legally defensible, based upon the scientific considerations, in a letter to a sitting U.S. Senator. The Supreme Court ruled, as Dr. Dockery alluded to, that in a unanimous decision from 2001, that it is unlawful to consider economic and cost considerations when defining how much air pollution like smog is unhealthy. So this was the -- this was the posture of confronting the President when he intervened, unfortunately, on a validly economic grounds, that he thought they were going to -- the standards, stronger standards would impose a regulatory burden on industry. And really, quite nakedly, political grounds. There was a member of Congress who declared, in response to their protest that it was not a political decision, Its almost insulting to say this was not about politics. Who were they kidding? Please. And that was from a Democratic member of Congress. It is, you know, the most widely known joke in Washington that this was, you know, to disclaim that this was a political decision, it plainly was. Let me dispense with one straw man that one sometimes hears, that, you know, EPA is legally bound to adopt the recommendations of the science advisors. They plainly are not. I dont think they are. But they are required to provide reasonable grounds, non-arbitrary grounds, for why they are disregarding those recommendations, disregarding the scientific studies on which they were based. And the Administrator Johnson, in 2008, failed to do so. He failed to do so in 2006 with other standards governing soot pollution. And that was quickly overturned by the courts in early 2009, I think on the same grounds that you will see these standards overturned as well. So, the question is, then, not smog or jobs?, because I agree with Dr. Henderson, we will have smog and jobs. The question is, when the person tasked with carrying out the law deems standards on the books to be legally indefensible, and tried to correct them, what does it mean for our democracy when the President intervenes on openly political and economic grounds in defiance of a Supreme Court decision, in order to push this off until after an election in defiance of both the law and the unanimous scientific recommendations? I think it was a dreadful decision. And it means that the President has condemned EPA to defending in court, against the American Lung Association and others, standards that the head of EPA knows to be legally and scientifically indefensible.

DIMINISHING RETURNS

CRISTINE RUSSELL: Well, well end with a comment and discussion by Dr. Montgomery on what hes looked at from the economic perspective, to give us a backdrop. And then well get back to these issues of the propriety of President Obamas decision.

W. DAVID MONTGOMERY, SENIOR VICE PRESIDENT, NERA ECONOMIC CONSULTING; FORMER DEPUTY ASSISTANT SECRETARY FOR POLICY IN THE U.S. DEPARTMENT OF ENERGY: Thank you. And Im also very pleased to be back here at Harvard. Dr. Dockery brought back the memory that I think I started working on air pollution and economics 45 years ago here at Harvard when I started working on my dissertation, and then was at Cal Tech at their Environmental Quality Laboratory, working on ozone issues through most of the 1970s. And Ill start out my economic perspective by saying, I agree with Dr. Dockery and Dr. Henderson. We have made tremendous progress on ozone in particular, over the past 45 years. And its important, I think, to recognize that in our general references to the health effects of ozone. The fact is that there are a lot less incidence occurring because of ozone today than there were back in 1980, because-- And because people are exposed to far, far less ozone-- and I was living in Los Angeles then-- than they were in the 1970s. The standards have been getting tighter and tighter all the time. And so, weve, in many ways, had the same number of people living in violation of the standards. But thats because the standards have gotten tighter over time. And thats really, I think, the basic issue in thinking about the economics. Its not a matter of whether I can claim that more jobs are being lost because of the regulation than someone else can

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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claim, or being gained somewhere else in the economy because of the regulation. Thats not the economics. The economic question really comes down to kind of the classical definition of prudence. And its pretty much that, if you pursue one objective without regard to other consequences that your decision might have, you are likely to do something very bad. And I think thats the perspective that we should-- that economics brings for thinking about the Clean Air Act. And, in many ways, I think the question is not whether the President did something [that] was either legal or responsible in terminating this particular proceeding, but whether the Clean Air Act is a framework that can be made to work under Justice Breyers guidelines when we are essentially getting down to a requirement for zero emissions. Because, if were down to background, youre going to exceed background if you contribute anything to air quality. The basic economic principle that applies to this is diminishing returns. Every emissions reduction, every change in emissions, every reduction in emissions that we undertake is going to cost more and is going to have smaller benefits as we get closer and closer to background. And that implies that, when we do the economic analysis, if we start in 1970, were going to find that reducing the standard by ten parts per billion has huge benefits and relatively small costs. Now we get to a point where, if we reduce the standard from 75 to 65, were getting very close to kind of the limit, where something starts to go asymptotic in order to reach the actual-- in order to get ourselves down that far. And I think that thats what the economic studies are telling us, that as we get closer, and as we push further and further, at this point, we are going to see that the costs to the rest of the economy, the things that we have to give up that the rest of the economy produces for us, in order to devote those resources to reducing ozone emissions, dont have benefits that are larger than the costs. And EPAs own regulatory impact analysis that they did in the process of this regulatory reconsideration shows exactly that, that it makes it abundantly clear that the potential reduction of ozone concentrations that are under consideration would have costs greater than their benefits. This is true of every case that EPA examined, when you look at the ozone benefits and the costs of meeting the standards that are being proposed for ozone. Even if you include what I think is, scientifically, a very controversial proposition that there is a causal relationship between ozone and mortality at these levels, still EPA comes up with-- EPA itself comes up with the conclusion that the costs of standards anywhere from 70 to 55 would be greater than their benefits. If you eliminate the ozone mortality, you get net costs that are in the 10s to 80-- you know, from $10 to $80 billion dollars a year for the different standards.

JUSTIFYING THE STANDARD

DAVID MONTGOMERY (CONTD): The only way that EPA justifies the ozone standard -- and I think this is very important to understand -- is by saying it will have cobenefits for particulate matter. Its the PM mortality, the particulate matter estimates of reductions in mortality -- that is, expected deaths, you know, shortening of life expectancy, accelerating of a heart attack -- that is used in the economic analysis to justify these standards on ozone. That does not make any sense to me, either as a policy analyst, or as a regulator, or as an economist, because you do different things to control ozone. The benefits are coming both from reductions in -- The benefits are coming from a different pollutant that you would regulate sources in different ways in order to control efficiency. And theyre being used to justify a regulation on something different that does not have benefits of its own, that are found to exceed the costs.

CRISTINE RUSSELL: Could you, just when youre throwing out the terms benefits and risk, could you clarify? I mean, are the benefits being measured in preventing health effects? How are those being quantified in terms of benefits? Because one of the challenges, really, is that the classic public health premise of preventing both morbidity, health effects, in terms of lung and, as was mentioned, heart disease, and potentially other things. The people that that might impact, the vulnerable people, are different than the people who might be -- who are having the cost of, you know, making the changes in industry and such. So you have two different -- kind of a disequilibrium between the people who are at risk and the people who are going to pay to change the standard. But, how are you using these terms of benefit and risk?

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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DAVID MONTGOMERY: The way its done by EPA and by everyone else that I know of is the standard public health methodology. You look at illness and look at the cost of illness, in terms of avoidable expenditures on medical care, in terms of lost wages, in terms -- and in terms of lost work or productivity. On the side of premature deaths, the premature deaths are valued based on the value of a statistical life, which is a number that has been getting larger and larger over the years. Both of those are topics that we could debate for the next seven weeks. But these estimates are done in the standard way, using the standard numbers, for all of those effects. The costs on the other side are estimated by looking at, essentially, what are the -- I mean, this is a very simple analysis that EPA did. All its looking at for the costs are, what are the control measures going to cost? It actually only looks at about what half the control measures are going to cost because it doesnt know what the other controls will have to be.

IS SCIENCE BEING HEARD?

CRISTINE RUSSELL: Well, isnt it, again, back to a point made earlier, whether you like the law or dont like the law, there is this aspect of it being a health-based standard, and specifically, as I understand it, for the EPA to be looking at the costs and benefits of the health effects, and not at the economic costs of complying with the law. So I think this is confusing in this room and out in our audience and in the public at large. You know, what is it? It does seem like the law says one thing and the reality is something different than that.

ROGER MCCLELLAN: Well I think, again, I go back to the Supreme Court Justice Stephen Breyer in The American Trucking Association / EPA case. He gave a very thoughtful discussion of the advice. And Id say its the rule of commonsense. Its to recognize that the administrator does not have to drive to zero, but has to make an informed policy judgment. And I think thats what Administrator Johnson did. And I hope that future administrators do that, but look even more to the advice given by Breyer. It is not a matter of being able to stack the science in a very precise way and say, This is the level that is scientifically appropriate. It is a policy judgment.

CRISTINE RUSSELL: But, just going back a step, and Id like our other two panelists to jump in before we take your questions. [Addressing Henderson] You, at the time of the judgment in the Bush administration, you yourself went public, testified before Congress, that you thought that there had been willful disregard of the science because of politics, or something like that. Im not quoting you exactly. But you didnt feel that they were following the science.

ROGENE HENDERSON: We disagreed with the choice of 75 parts per billion as being protective of the public health. I think youre referring to the secondary standard.

CRISTINE RUSSELL: Yes, and thats what Im kind of getting back to, of whether that is the criterion that has to be used, from the scientists believed it should be lower, and maybe from the--

ROGENE HENDERSON: And Mr. Montgomery is right. We have done such a good job, I think, on ozone -- and I would add particulate matter -- that were getting down to levels approaching background. Now these points are discussed in our committee. You know, people--

CRISTINE RUSSELL: But your committees did feel that there was still more that could be done.

ROGENE HENDERSON: -- Could be done, exactly.

THE ANDELOT SERIES ON CURRENT SCIENCE CONTROVERSIES SMOG OR JOBS? The Impact of Tighter Ozone Pollution Control on Health and the U.S. Economy

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CRISTINE RUSSELL: -- Before weve reached, you know, I think it was raised by Dr. Dockery at the beginning, how much is enough. Your committee, at the time of the advice of 2008, and I think the current committee gave advice to EPA Administrator Jackson, that they agreed with your committee, that there was still more that could be done from a public health standpoint.

ROGENE HENDERSON: Exactly. We felt that they could go down to 60 to 70 parts per billion and still be within the range where you could help protect public health. We didnt kid ourselves that we could go below background. I mean, the request--

ROGER MCCLELLAN: That committee which youre referring to was an ad hoc committee, chaired by the current Chair of CASAC, Clean Air Scientific Advisory Committee, Jon Samet. Jon Samet, in his letter--

CRISTINE RUSSELL: You mean the advice to the current Administrator Jackson?

ROGER MCCLELLAN: Administrator, right. And in March of this year, he wrote to the administrator, and at the beginning of his commentary, said, The decision on an adequate margin of safety is, inevitably, a decision of science and policy. That, I think, is a clear statement on his part, that the 60 to 70 is a blended decision, science and policy. And that will inevitably be the case when somebody says, What should the standard be? Because there is no scientific methodology that you can use to say, This is the right number.

CRISTINE RUSSELL: We do have a system for getting advice from scientists. And this was an issue in the Bush administration of whether the scientists were being listened to. So Im just trying to clarify. Its a complicated checkered history. Lets have one more comment before we go to questions from Mr. Walke about this question of protecting the public health and following the law. And the fact thats, I believe, now going to go back into court again, right?

10 DISREGARD OF THE LAW?


JOHN WALKE: It is. This panel actually shows the same pressures in Washington of how much insistence there is upon taking economics into account in disregard of the law. The law does not allow that. A unanimous Supreme Court decision does not allow that. Im always amused to hear invocations of Justice Breyers concurrence in that decision, because [over the Charles] River at the [Harvard] Law School, we refer to a concurrence as musing aloud. It has no legal import whatsoever. But its a reflection of this almost burning insistence to make this debate about economics, in defiance of the law. The information that was referred to by my colleague here was taken from a document that is provided by EPA purely for informational purposes, consistent with an unenforceable executive order. Its for policymakers to consider for informational purposes. But it may not govern the decision, based upon the public health exclusive basis of the Clean Air Act.

CRISTINE RUSSELL: And where did that estimate that was thrown around of the cost of compliance being $90 billion dollars? Was that from-- ?

JOHN WALKE: You know, that was a wonderfully conceived sound byte by industry lobbyists to refer to the 60 part per billion level of the range that EPA had absolutely no intention, whatsoever, of adopting from the beginning. We know, from various sources, that EPA had sent to the White House a standard of 70 parts per billion. And the compliance costs with that were vastly lower, were outweighed by the benefits in EPAs study. But that wasnt suppose to drive the decision until the President intervened and made clear that he was interfering on economic grounds and trumping Administrator Jacksons declaration that the standards we now are forced to suffer under are legally indefensible.

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DAVID MONTGOMERY: I beg to differ on a couple of those facts, though, because I actually just finished reviewing that RIA. And even--

CRISTINE RUSSELL: Explain what an RIA--

DAVID MONTGOMERY: Sorry, the Regulatory Impact Analysis.

CRISTINE RUSSELL: Weve tried to regulate any acronyms, but we cant keep it out-- [laughter]

DAVID MONTGOMERY: -- that my colleague was referring to. It did find, if you look at the ozone benefits alone, that the ozone benefits did not justify the ozone standard. The costs were in around $18 billion dollars for the 70 part per billion standard. The ozone benefits to avoid mortality were estimated to be less than that. But I think the really important point is that -- and the reason I think the experts confuse people -- is we make the law. The citizens of the United States make the law. The Congress created the Clean Air Act. If the Clean Air Act is making decisions more difficult rather than less difficult, we need to think about it. It used to work much more easily, which is, before our litigious society forced EPA to a set of very specific deadlines for implementing the regulations that would follow from declaring an air quality standard, the way it worked was, you could declare that the science said that, based on our current instrumentation, we should protect the health with the standard of 84 parts per billion. Thats sufficient, given what we know in 1977, say. EPA then looked around, and it took costs into account when it decided how long to take to implement that. We did have a system at that point that was quite balanced. You could purely have the scientists say, This is our goal. The economics came in and figuring out how fast to get there. Now we cant do that.

11 PARTICULATE MATTER V. OZONE


CRISTINE RUSSELL: Well, hopefully this is all clear, although Im still not clear on this question of the fact that the economics clearly is coming into the discussion, if technically on the law its supposed to be health-based. But, so there is a contradiction on its face, I think were seeing here. But lets go to the audience and see if you have some questions to bring to light here. And Id like everyone to identify themselves clearly and remind you that we have this room, and we also have an online audience, both now and potentially in the future.

PETROS KOUTRAKIS: My name is Petros Koutrakis. Im a professor of environmental sciences. I also am the Director of the Harvard EPA Clean Air Center. And also, I have the honor to serve with both Dr. Henderson and Dr. McClellan at the two panels, 97 PM and 2002 PM.

CRISTINE RUSSELL: Particulate matter.

PETROS KOUTRAKIS: Particulate matter.

CRISTINE RUSSELL: We have translators lurking here, but-- [laughter]

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PETROS KOUTRAKIS: So, I have a comment and one question. The comment is that I just want to make clear that we have been very bad in terms of reducing ozone in the United States. Actually, all the other six criteria pollutants have decreased tremendously over the years as result of the regulation we have developed. But ozone has been very stubborn. And also, the background is increasing. So I think thats something to keep in mind. Now my question is that, when we serve at the PM, particulate matter panel, we had very strong evidence from epidemiological studies. And everybody felt very strong about reducing both the annual and the daily standard for PM.

CRISTINE RUSSELL: Particulate matter.

PETROS KOUTRAKIS: Particulate matter. I did not serve [on] the ozone [panel], but I have the impression that most of the evidence for setting up the ozone standard came from inhalation studies, where you expose humans to different levels of ozone, namely the Adams Study. And less came from epidemiological study. My question is, do you think that we had stronger evidence for a more strict standard for PM or for ozone? Personally, I think the case for ozone was weaker than PM. But I would like to know your impressions.

CRISTINE RUSSELL: And Im going to just emphasize, weve really got to make the answers very quick. And well have to save detailed science for our after show.

ROGENE HENDERSON: I was chairing for both of those. And not in my wildest dreams would I hope to make a quantitative comparison between the amount of evidence for one versus the other. There was epidemiology evidence, particularly hospital admissions, etcetera, that did-- that influenced the ozone. So it wasnt just a chamber studies. It was both and balanced studies. And there was strong evidence. Youre right. We had the problem with ozone, that there is no bright line where we say it has no toxicity. And the background is rising. What are we going to do? And our committee discussed that at length. And we felt that 60 to 70 was as low as we would go because of those things. But its good to see you again Petros. [laughter]

12 JOBS AND HEALTH


CRISTINE RUSSELL: All right, well take another question. And again, if we can have questions and just very brief, thank you.

JULIE GOODMAN: Thanks. Im Julie Goodman from Gradient, and Im also on the adjunct faculty in epidemiology [at Harvard School of Public Health]. The premise of this Forum is that President Obama had a choice between improving health and keeping jobs. And there is an implicit assumption that lowering the standard would have lowered health effects. But there is an argument to be made that if one evaluates the weight of the entire body of scientific evidence, that this evidence does not indicate that lowering ozone exposures below the current standards would actually benefit health. So this would mean that we would be losing jobs with no benefit. And so, I was wondering if Doctors Henderson and Dr. McClellan could speak on that.

ROGENE HENDERSON: Well Dr. Henderson will say -- Again, as I said before, I dont accept the premise that we have to choose between jobs and health. I think we can have -- We have only to look at China and India to see what happens when you emphasize an industrial development -- maybe they really needed to do that -- and ignore cleaning up the air. The U.S. has been able, with the Clean Air Act, to advance industry and to advance clean air. So we need to continue

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along the road that that Clean Air Act has led us. There are going to be questions, because weve been so successful, about, What do we do now? Do we start looking at mixtures? Do we start handling air pollution control in different ways? But those are all very hard questions. But I really dont accept the premise that weve got -- its either jobs or public health. We can have both. And Ill let Roger comment.

ROGER MCCLELLAN: Well, first of all, its sort of a false premise to set up that a new standard automatically changes things and theres more health protection the next day. Weve had changing standards over the decades. And, what we have is a long, slow trajectory of reducing the levels of these various pollutants in the environment. Professor Koutrakis is absolutely correct, that ozone has been more intractable than the others. And thats in part because, in part, ozone is created from natural sources, in terms of volatile organic compounds, not just industry. He raised a very important issue when he asks, how would you compare the two? In fact, I would suggest that, if CASAC wants to offer advice on specific numerical levels--

CRISTINE RUSSELL: -- And thats the advisory committee.

ROGER MCCLELLAN: -- Clean Air Scientific Advisory Committee-- that they ought to think about what is the actual level of health benefit that is going to be achieved with these various levels? Why should we have one air pollutant governed in terms of a large increase, in terms of health benefit, another very limited? So hes raising an important point, in terms of making this policy judgment. I would emphasize that the best advice, I think, that came from a Clean Air Scientific Advisory Committee occurred in the 97 round, with the particulate matter standard, when the letter to the administrator contained the specific recommendation of each member of the panel. Consensus is, in some ways, not science. Its a sociological phenomenon.

CRISTINE RUSSELL: Maybe just one comment, since we brought up 97. To some degree, a large part of the country is not in compliance with the 1997 standards, as I understand it. And right now, these 2008 standards are not being-have not been implemented. Is that correct, Mr. Walke?

JOHN WALKE: Thats correct. The dirty little secret behind the Presidents intervention was that, as a practical matter for the next three years, we will continue to live under the highly outdated 1997 standard that is significantly higher than what is necessary to protect public health, including vulnerable populations. I just dont think its a defensible suggestion that there are not health benefits to reducing the ozone standard to fall within the range that was recommended, especially for those vulnerable populations that the law mentions in its legislative history, that are required in the ample margin of safety standard. So the EPA will stumble along for the next several years. The President suggested that the next process would be completed in 2013. In fact, there is a notice on the agencys website that says they dont expect to have final standards until July of 2014. So, you know, this was just rivened with politics, and really misrepresentations to the public. And unfortunately, its going to fall to the courts to sort it out, since the Executive Branch bungled it so badly.

CRISTINE RUSSELL: And potentially, the voters, given the fact that there will be an election in 2012. So we dont really know who will be in charge of either the EPA or the country at that point. Do we have a question? Robin Herman is here, who is the Director of The Forum and put this panel together, and is communicating with the online world. And Im wondering if Robin has a question.

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13 REFINERIES AND REGULATIONS


ROBIN HERMAN: Yes. Weve received several questions from our online audience. This one comes to us from California, from Joseph Lyou, who is President and CEO of the Coalition for Clean Air. And he is asking-- He would be interested in the panelist comments on the experience in Los Angeles, where stringent air quality regulations have been well established and evolving for decades, and refineries have been profitable, in part, because these regulations have required regular equipment upgrades and strict maintenance, thereby creating more efficient and reliable operations. Anyone want to talk about that?

CRISTINE RUSSELL: Yeah. Why dont we have Dr. Montgomery jump in on that.

DAVID MONTGOMERY: I have spent a good bit of time working on both issues of refineries and California air quality standards. Refining has hardly ever been a profitable business. It is one which survives because the demand for gasoline is so solidly established and changes so very slowly. But the refineries in California have faced very large costs. Most of those costs have been passed on in the form of the highest gasoline prices in the country. And thats where the cost of those standards appears.

CRISTINE RUSSELL: And Mr. Walke.

JOHN WALKE: A group in Washington called the Center for American Progress did a very informative study to, you know, educate the White House of the differences between economic growth rates, unemployment rates, and other economic indicia, and counties that were complying with the ozone standard we now have and not complying. And there was essentially no meaningful difference. It was lost in the noise. It was around, you know, one percent or so. And, you know, the White House was presented with that information. Unfortunately, they were also presented with maps of the United States that were identifying which areas would fall into non-attainment, and very prominently highlighting states that were swing states in the upcoming election by the American Petroleum Institute. And, you know, we know which information they weighed more heavily now.

CRISTINE RUSSELL: Well let me just say, before everybody jumps in, give us a sense of, if this draft regulation had gone into effect, which areas of the country have the worst ozone pollution? Where would we not want to live? L.A. might be one of them, I think we can guess. What are factually--

ROGER MCCLELLAN: Well, Id go to Albuquerque, New Mexico.

CRISTINE RUSSELL: Yeah. And coincidentally, we have two from Albuquerque here.

ROGER MCCLELLAN: I think we have clean air in Albuquerque. And I think in general, we have a healthy population. But I can identify a number of important health risks that would warrant both public and private expenditures. Addressing a lower ozone standard would not meet that list. There isnt just a blank checkbook over there to write the checks to achieve attainment of these standards. The standards apply across the country. So it would not be just the worst areas. Its cross the country, has tremendous influence on where industries are able to move. We have areas that are paralyzed today because they are non-attainment. We have areas, if the standard is lowered, they will move into non-attainment, impossible, very difficult to have industry relocate there. So there are important repercussions of a change in the standard.

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CRISTINE RUSSELL: Well, I think theres the question of the economic repercussions, which have come up repeatedly. And Mr. Walke has raised the question of the political underlying issues. And certainly, in Washington, with the republicans, the EPA is under a lot of attack. How does that fit into that?

ROGENE HENDERSON: I want to answer the question that came from the people in California. Because I think it represents another example of where regulation motivates industry to improve things. And I think I see that as a very positive way that good scientifically-based regulations can influence industry to improve. I am sorry that Albuquerque--

ROGER MCCLELLAN: And to relocate. We have businesses in Albuquerque today because they have moved from Southern California.

ROGENE HENDERSON: I dont know who is paralyzed. But I know I visited Wyoming where they have an ozone problem in the winter around gasification facility. And its the regulations are inspiring them to improve their process. And they dont see it as shutting them down. They just see it as, Well, weve got to figure out why this is happening. And lets learn how to do it better.

14 POLITICAL DRIVERS
JOHN WALKE: In answer to your political question, there was an amendment in Congress introduced two days ago by a republican Congressman from Ohio, to eliminate the Clean Air Acts 40 year exclusive consideration of health in setting clean air standards. The amendment was a simple and brutal one-sentence insistence that cost and feasibility to industry be taken into account. And, you know, I think, and I hope that will fail. But, what it would reflect is a decision to take away a right to clean air, based upon, you know, what is healthy or unhealthy, that Americans have enjoyed for over 40 years. But as you, you know, alluded to, there is a Tea Party-driven rampage in Washington right now that is willing to throw lots of things overboard. And the Clean Air Act is one of them.

CRISTINE RUSSELL: Dr. Montgomery.

DAVID MONTGOMERY: I wont address Mr. Walkes political sentiments that I disagree with, but I will address his economics, which I think is just wrong. I actually looked at the study for the Center [for] American Progress that he cited. And I think the broad lesson we see from this is that what we just talked about, about the politics and the pressures of the economy on politicians, are leading to very bad economics and very misleading statements coming from the advocates of tighter air quality regulation. And its unnecessary, because you can do good economics that balances costs and benefits. But that study, I spent some time trying to think -- and I realize there were several very bad statistical flaws in the study. But the real problem was that it claimed to analyze the effects of the 1997 Ambient Air Quality Standards on attainment and non-attainment areas. And it took a sample of -- I think it was 2005 to 2008 -- as the time period. But I then looked at the timeline. None of those areas have yet started to implement any programs to achieve the 1997 Clean Air Act National Ambient Air Quality Standards. So of course there was no difference. They werent doing anything different yet because of those standards. So we see, again, a study which has absolutely no economic basis being used to claim something which simply flies in the face of everything every economic student learns, that if you want to have more of one thing, you have to have less of something else. The question is how to make that judgment.

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CRISTINE RUSSELL: Okay, were going to go back to the audience while we ponder that. Do we have another question?

Q:

Yeah, my name is Oluwaseun Adeola [words unclear] program and have question.

CRISTINE RUSSELL: Just a tiny bit louder. Im not sure the mic is on.

Q: Yeah, Im a one-year MPH student in Health Policy & Management [at Harvard School of Public Health]. Now what I think is the issue here is the disassociation between science and reality. Like how realistic is bringing down the ozone level to 60 parts per billion? Because no matter how low we tend to go, there is no amount that is totally safe that will eliminate the risk of ozone deaths in the population. So, what we need to consider is, is there much benefit from lowering from 75 to 60? We already said that there has been a reduction, an obvious reduction in the zone deaths, from 84 to 75. Now, going below that, do we really stand to gain much? Because what I believe is the role of policymakers are not to just follow the science to the letter. They are supposed to use the guidelines to make informed decisions. Its just like a basis. So, what if another study comes out tomorrow and says its the safety level has been reduced to 40? Do the poisonous gas go to that 40 again?

CRISTINE RUSSELL: What would your question be? Because I think weve addressed some of this.

Q: My question is, are there studies now, to date, comparing levels of 75 parts per billion to 60 parts per billion? Because what weve been hearing is in comparing the 84 to the 60 that the panel arrived at in 2008. Now, what should be the focus now? Are there studies that have shown, comparing the 75 parts per billion to the 60 parts per billion level?

CRISTINE RUSSELL: I think one thing, because were down in details here. And at least, as I understand it-- and Im a generalist trying to translate here-- that that committee was not-- it was a range. It was not 60. You can speak Dr. Henderson, but just briefly, because we have outlined--

15 HOW LOW IS ENOUGH?


ROGER MCCLELLAN: Well I would applaud the students comments. I think they reflect a very thoughtful view. The answer to the question of how low is low enough is a policy judgment to be made by an elected or appointed official, guided by the best scientific advice available. But scientists should not pretend theyre the EPA administrator and say, I know what the standard should be. If they do that, they are expressing their own personal policy preference as to the outcome.

ROGENE HENDERSON: And thats why we gave a range, Roger. We do not-- We know--

CRISTINE RUSSELL: -- So there wasnt a single number. Why dont you clarify that?

ROGENE HENDERSON: There was not a single number. We looked at the range that we thought would be protective of public health, which turned out to be 60 to 70 parts per billion. But, in no way has any member of CASAC ever thought they were responsible for setting this standard. Thats the business of the administrator. And the administrator

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chose to go outside that range, for whatever reason. That was his decision in 08. So no, I have never known anyone who was a member of CASAC who thought that a member of CASAC should set the standard.

CRISTINE RUSSELL: But they were giving the best scientific advice that they had.

ROGENE HENDERSON: They gave the best. And, if you dont give it purely on a scientific basis, tell it like it is to the administrator, the advice is of no value. If you try to hedge it so that it, you know, is politically acceptable, then your advice is of no value. Its going to be the pure, what do you really think is health-protective with a margin of safety. And thats what we tried to do.

CRISTINE RUSSELL: Robin Herman, do you have another online question?

ROBIN HERMAN: Yes. This one, I read into it a little bit of exasperation. This is from Gregg Thomas in Colorado. Hes the environmental assessment and policy section supervisor for the Denver Department of Environmental Health, which would have to look after and implement some of these regulations. And he says, hes addressing it to Doctors Henderson and Dockery: So why even proceed with a reconsideration in 2009, since the Administration knew that it would be one to two years before its decision was final, and at a time when the economy was arguably worse than it is now? So you see what hes saying is that, why did we even begin this when the economy, a couple of years ago, was terrible? And then the President is saying, now, were not going to proceed because the economy is terrible.

CRISTINE RUSSELL: I think actually, perhaps from a legal standpoint, we had a comment from Mr. Walke about the fact that there was a legal battle going on in the courts on this. Would you just want to restate it briefly?

JOHN WALKE: Sure. What Administrator Jackson said in 2009 is she didnt want to, you know, she didnt think the standard was protective enough, legally efficient, or scientifically sound. She didnt want to waste the courts time over a lawsuit involving a standard that was not one that should be defended or preserved. And she genuinely, out of good faith and sincerity, was trying to better protect the public and follow the law. The rug was rudely jerked out from under her on September 1st, the day before the Presidents decision, when she was first informed that this was going to happen. So the reason we, you know, delayed and, you know, arguably wasted two and a half years is because EPA was trying to do the right thing until politics rudely intervened. And we now have seen that the last two and a half years were wasted.

ROGER MCCLELLAN: I would refer you to the memo from Cass Sunstein as a responsible official, in terms of the Office of Information and Regulatory Affairs in OMB. He was charged with reviewing this. He is also an attorney, distinguished career from the University of Chicago, back to Harvard University. And he pointed out that it simply did not pass the test in terms of it was a discretionary action, and the standard now would be not based on the best available science. It simply did not meet his test. And I would say, as an attorney, of something that should be done now. They should adhere to the regular schedule.

JOHN WALKE: That confirms my point. It wasnt Mr. Sunsteins decision to make, any more than it was the Presidents. And the reason the science was now three years stale, is because they had let EPA believe that they were going to be able to follow the law, until they decided at the last minute they werent. So of course the science is three years old. They let EPA waste that time, and then rudely pulled the rug out from under them.

CRISTINE RUSSELL: So, to sum up here, looking forward, I guess -- and I hesitate to get into any of football analogies, even though its football season -- but so President Obama has thrown the ball backwards to his administrator and said, Lets have a time out. So theyre having a huddle on this. And this huddle is going to be a very long huddle going

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on until after the next election into 2013-14, at which point we will be following the process that was already underway, to come up with a new rule. But, with an asterisk, in the meantime, we will be back in the courts, where we were before this started. So I think we are seeing, in our discussion today, the complexities of both the scientific review process, the legal review process, the economics, theoretical and real, and then the political overlay. And so, I think everybody can take a little message from this and perhaps write down on a pad what do you think will be happening on this issue. And also, because this is an important symbol of some of these environmental issues that obviously goes beyond the question of ozone and smog. So I want to thank this really great panel for all of your insights, and Dr. Dockery for a very clear opening, and also the Harvard School of Public Health for The Forum. And we will conclude now. Thank you very much.

[applause]

END OF FORUM

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