Author Archives: Ben Levitan

The fight for transparency and accountability at EPA

This blog was co-authored by Surbhi Sarang, EDF Legal Fellow.

Since taking the helm at the Environmental Protection Agency (EPA), Scott Pruitt has attempted to hide his activities from scrutiny by limiting the public’s access to information.

He has ended the decades-long, bipartisan practice of releasing the daily schedules of top agency leadership, removed EPA webpages, and announced harmful policies close in time with private meetings with lobbyists from affected industries.

EDF has been at the forefront of efforts to promote transparency and accountability at EPA. That’s why we just filed a lawsuit to compel EPA to comply with its legal duty to release public records under the Freedom of Information Act (FOIA).

Scott Pruitt’s record of secrecy and ethical conflicts

Scott Pruitt’s opaqueness and secrecy have sharply contrasted with basic principles of good government.

Under the Ethics in Government Act of 1978, the Office of Government Ethics issued regulations for executive branch employees:

To ensure that every citizen can have complete confidence in the integrity of the Federal Government.

Among other requirements:

Employees shall act impartially and not give preferential treatment to any private organization or individual” and “shall endeavor to avoid any actions creating the appearance that they are violating the law or . . . ethical standards.

The Office of Government Ethics titled this regulation the “basic obligation of public service.”

Pruitt and his senior leadership have raised serious questions as to whether they are abiding by these principles.

In just one example, earlier this summer thirteen state Attorneys General formally objected to a guidance letter in which Pruitt expressed his flawed, misleading opinion about a crucial issue in litigation over the Clean Power Plan — America’s only nationwide limits on carbon pollution from existing power plants.

The Attorneys General wrote that Pruitt’s conduct was “inconsistent with his agreement not to participate in the litigation,” given that he repeatedly sued EPA over the Clean Power Plan when he served as Attorney General of Oklahoma.

Pruitt also discontinued the practice of releasing his schedule, along with the schedules of senior leadership.

The bipartisan practice of releasing schedules stretches back decades and was initiated expressly:

In order to make the public fully aware of [the Administrator’s] contacts with interested persons.

Following months of public pressure and more than 60 FOIA requests, Pruitt finally released a partial public account of his schedule. But that account provides only a minimal level of detail of how and with whom Pruitt spends his time.

Pruitt later released a more detailed appointments calendar, but it covered a limited date range and included many redactions worthy of additional scrutiny. And neither of those releases provides any transparency for other EPA senior officials.

To obtain any more information about how EPA leadership spends its time, EDF’s only recourse has been to demand the release of these public records under FOIA.

EDF’s efforts to promote transparency and accountability

EDF is taking action to protect important standards of transparency and accountability at EPA — and to keep the public informed about policymaking that directly impacts the health and environment of all Americans.

Our lawsuit concerns three FOIA requests that directly address the integrity of EPA’s operations. For each request, EPA’s legally mandated deadline for providing a response is several months overdue, despite EDF’s extensive outreach to EPA over many months in an effort to elicit the requested records.

The first request seeks records related to the ethics agreement that Pruitt signed shortly after his nomination to lead EPA, in which he outlined:

[S]teps that [he] will take to avoid any actual or apparent conflict of interest.

We submitted this FOIA request in January 2017 – more than nine months ago.

Pruitt’s ethics agreement diverged from the standard language used by the Office of Government Ethics – even though Pruitt’s longstanding and very public opposition to a litany of EPA’s public health and environmental safeguards calls into question his ability to be impartial, particularly on matters in which he represented Oklahoma and long ago took fixed positions. Since taking the oath of office as Administrator, Pruitt has actively tried to undermine public health and environmental protections — like the Clean Power Plan — and has proposed to repeal protections that he had long attacked while Attorney General of Oklahoma.

Our FOIA request seeks records pertaining to the evaluation of Pruitt’s actual or potential conflicts of interest, including any analysis that informed his ethics agreement.

The second request is for records related to Pruitt’s and his senior managers’ schedules.

The most complete information we’ve received so far on Pruitt’s activities is only a select snapshot released through a FOIA request. That snapshot contains more than 100 redacted calendar appointments, and only runs through mid-May.

Even this limited information reveals the special access granted to polluter lobbyists — many of whom come from industries that have supported Pruitt’s political career for years. A more comprehensive release, including the calendars of senior EPA managers, would provide a fuller picture of the constituency that Pruitt and his political staff are serving.

The third request is for public documents related to threats to scientific integrity at EPA.

EDF requested these records in light of the Trump Transition Team’s efforts to single out civil servants at the Department of Energy who worked on climate science and policy. Since we submitted this FOIA request more than seven months ago, subsequent events — including the removal of EPA’s Climate Science website, scientific distortions that accompanied the proposal to repeal the Clean Power Plan, threatened efforts that would compromise the integrity of EPA advisory boards, and the muzzling of EPA scientists who were scheduled to deliver public presentations on climate change — have only increased the urgency of providing public access to records about the treatment of scientific integrity at EPA.

EDF will continue working to protect transparency and accountability at EPA by supporting Americans’ ability to access information about health and environmental policies, and by shining a light on the Trump Administration’s attacks on vital safeguards for families and communities across America.

Posted in Clean Air Act, Clean Power Plan, EPA litgation, Policy, Setting the Facts Straight| Comments are closed

New records just released under FOIA raise an important question: Did the Trump transition team consider dismissing EPA’s Inspector General?

Recently released documents from the U.S. Environmental Protection Agency (EPA) suggest that President Trump’s transition team considered — then decided against — dismissing EPA’s Inspector General.

Myron Ebell, who headed the transition at EPA for then-President-Elect Trump, emailed an EPA career staffer on January 13, 2017 that the transition team, “want[ed] to retain the EPA’s IG for the present.”

Ebell wanted to relay the information to the Inspector General “without any formal communication.” He went on to express a strong preference for delivering the message himself, rather than delegating to EPA career staff.

These documents were released under a Freedom of Information Act (FOIA) request.

Myron Ebell’s stint leading the EPA transition was a brief departure from his usual job at the Competitive Enterprise Institute, where his polluter-funded work aims to slash health and environmental protections and spread climate denialism. It is currently unclear why he — or any member of the Trump transition team — needed to reach out to EPA’s Inspector General for a conversation about job security.

Notably, Ebell’s January 13, 2017 email message was expressly hedged, indicating only that the Inspector General would be retained “for the present.”

For 30 years, dismissing Inspectors General has not been a normal part of presidential transitions. Only President Reagan — the first President to assume office after Congress created Inspectors General — did so, and he partly backtracked under intense political pressure.

Now, the Trump Administration has taken worrying steps toward undermining the integrity of Inspectors General across the federal government.

Congress created the position of Inspector General at federal agencies in order to conduct audits and to prevent waste, fraud, and abuse.

The statute creating the position provides that Inspectors General:

[S]hall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. (emphasis added)

Congress has repeatedly emphasized the need for independent Inspectors General:

  • A 2010 amendment to the Inspector General Act required the President to provide Congress with advance notice and explanation before removing an Inspector General from office.
  • Congress further enhanced the role of Inspector General with the bipartisan Inspector General Empowerment Act of 2016.

Since assuming office in 2010, EPA’s Inspector General has pursued investigations under both President Obama and President Trump.

Subjecting Inspectors General to political pressure utterly defies the Congressional objective of independent oversight at federal agencies. It sets the stage for corruption and puts taxpayer dollars at risk.

Myron Ebell’s involvement in discussions about the EPA Inspector General’s employment status raises two pressing questions:

  • Why was the EPA Inspector General’s job status ever in doubt among the Trump transition team?
  • Why did Myron Ebell want to conceal his communication with the Inspector General?

The Trump Administration and Myron Ebell owe the public answers to these questions.

Posted in Jobs, News, Policy, Setting the Facts Straight| Comments are closed

Scott Pruitt’s relentless distortions of climate science and law

This summer was anything but quiet for climate policy.

In June, President Trump announced that the U.S. would withdraw from the Paris climate agreement.

In July, the U.S. Court of Appeals for the District of Columbia Circuit blocked Environmental Protection Agency (EPA) Administrator Scott Pruitt's attempt to suspend protections from climate-destabilizing oil and gas pollution, calling the move “unauthorized” and “unreasonable.”

In August, two judges of the same court reminded EPA of its “affirmative statutory obligation to regulate greenhouse gases,” citing longstanding Supreme Court precedent.

Now, the devastation caused by Hurricane Harvey and the record strength of Hurricane Irma are showing us what’s at stake, as sea level rises and extreme weather becomes more frequent.

Meanwhile, Administrator Pruitt has continued his pattern of deeply misleading statements about climate change and EPA’s responsibility to protect public health and the environment.

Pruitt uses these statements in an attempt to justify rolling back vital public health and environmental safeguards. In just his first four months in office, he took action against more than 30 health and environmental protections, including the Clean Power Plan — our first and only national limit on carbon pollution from existing power plants.

As America’s proven, life-saving environmental protections come under attack, here are four facts about climate law and science to help cut through Pruitt’s distortions.

  1. EPA has an affirmative statutory obligation to regulate climate pollution

Administrator Pruitt frequently questions EPA’s ability and authority to regulate climate pollutants under the Clean Air Act. But contrary to Pruitt’s claims, the Supreme Court has repeatedly ruled that the Clean Air Act covers climate pollution.

  • In Massachusetts v. EPA, the Court held that climate pollutants “without a doubt” and “unambiguous[ly]” meet the definition of “air pollutant” under the Clean Air Act.
  • In its subsequent American Electric Power v. Connecticut (AEP) opinion, the Supreme Court found that section 111 of the Clean Air Act — the section under which EPA issued the Clean Power Plan — “speaks directly” to the regulation of climate pollution from existing power plants. (Even opponents of climate protections conceded that point during oral argument.)
  • The Court again recognized EPA’s authority to regulate climate pollution in a third decision, Utility Air Regulatory Group v. EPA (UARG).

Former EPA administrators serving in both Republican and Democratic administrations have recognized that “Congress has already made the policy decision to regulate” air pollutants that EPA determines — based on scientific factors — endanger the public health or welfare.

That’s why we now enjoy protections from air pollutants like cancer-causing benzene, brain-damaging lead, and lung-impairing particulates. We may not have had those protections if former EPA Administrators had shared Pruitt’s myopic view of the agency’s responsibility under the Clean Air Act.

As the Supreme Court stated in Massachusetts v. EPA, Congress:

underst[oo]d that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language … reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence.

In issuing the Clean Power Plan and other climate protections, EPA scrupulously fulfilled the mandate with which Congress entrusted it. The Clean Power Plan also reflected the Supreme Court’s finding in AEP that climate pollution from existing power plants was covered by section 111.

Administrator Pruitt has seriously misconstrued judicial rulings that conflict with his policy goals.

For example, he claimed that the Supreme Court’s UARG decision “said the authority the previous administration was trying to say that they had in regulating carbon dioxide wasn’t there.”

Pruitt overlooks the fact that the UARG opinion upheld the vast majority of what EPA had done, including the requirement that sources subject to certain permitting obligations under the Clean Air Act utilize “best available control technology” for climate pollution. The Supreme Court only took issue with EPA’s potential regulation of a subset of sources constituting a small percentage of total emissions, which did not implicate EPA’s fundamental obligation to regulate climate pollution.

2. EPA’s obligation to regulate climate pollution is based on scientific factors, not the Administrator’s policy preferences

Administrator Pruitt’s most dangerous Supreme Court misinterpretation might be his twist on Massachusetts v. EPA, a landmark decision that set the foundation for many of the climate protections that followed.

In Pruitt’s reading, when it comes to climate pollution, the Supreme Court held only that EPA “must make a decision whether [to] regulate or not.”

But the Supreme Court actually held that EPA was required to determine — again, based on scientific factors — whether climate pollution endangers public health or welfare.

In 2009, EPA concluded that climate pollution indeed poses a clear danger to public health and welfare, based on an exhaustive review of an expansive array of published studies and surveys of peer-reviewed literature prepared by the U.S. government’s Global Change Research Program, the National Academy of Sciences, and the Intergovernmental Panel on Climate Change.

The D.C. Circuit upheld this Endangerment Finding against a barrage of legal attacks, finding that it was based on “substantial scientific evidence.”

After issuing the Endangerment Finding, EPA was statutorily obligated to follow the Clean Air Act’s process for regulating the dangerous pollution.

Administrator Pruitt’s position more closely resembles the losing argument in Massachusetts v. EPA. The George W. Bush Administration had justified its decision not to regulate climate pollution based on factors completely unrelated to public health or welfare. But the Supreme Court brushed aside EPA’s “laundry list of reasons not to regulate” and ruled that the agency was not free to — in Pruitt’s words — “make a decision” not to regulate. Rather, EPA must conduct a science-based evaluation of the risks that climate pollution poses to public health and welfare, and if the science supports an Endangerment Finding, regulation must follow.

3. The scientific evidence of climate change is overwhelming

Climate change is happening now. As climate pollution continues to accumulate in the atmosphere, it will bring melting sea ice and glaciers, rising sea levels, and more extreme weather including heat waves, floods, and droughts.

Administrator Pruitt attempts to minimize this threat by focusing on uncertainty. In Pruitt’s parlance, we still have more to learn about “the precision of measurement” when it comes to the effects of climate pollution. But the fact that there are still productive areas for research doesn’t mean we should disregard the vast amount that we already know.

As the American Meteorological Society recently told a different Trump Administration official:

[S]kepticism and debate are always welcome,” but “[s]kepticism that fails to account for evidence is no virtue.

In Massachusetts v. EPA, the Supreme Court held that EPA cannot decline to regulate climate pollution due to:

some residual uncertainty … The statutory question is whether sufficient information exists to make an endangerment finding.

EPA answered that question in its 2009 Endangerment Finding, and since then, the overwhelming scientific evidence for human-caused climate change has continued to grow.

In the final draft of the U.S. Global Change Research Program’s latest Climate Science Special Report — which is currently under review by political officials in the Trump Administration — climate scientists determined that, in the last few years:

stronger evidence has emerged for continuing, rapid, human-caused warming of the global atmosphere and ocean.

The year 2016 marked the third consecutive year of record-high global surface temperatures, and 2017 marked the third consecutive year of record-low winter Arctic sea ice. Meanwhile, the rate of sea level rise is increasing.

In contrast to the extensive scientific research demonstrating the role of climate pollution in destabilizing our climate, Administrator Pruitt has proposed a (possibly televised) “red team/blue team” exercise in which opposing teams of government-selected experts debate climate science.

Christine Todd Whitman, who served as EPA Administrator under President George W. Bush, characterized the red team/blue team exercise as “a shameful attempt to confuse the public into accepting the false premise that there is no need to regulate fossil fuels.”

Pruitt has acknowledged that he is “not a scientist” but nonetheless suggested that his red team/blue team exercise would represent “what science is all about.” Anticipating that some scientists might be reluctant to participate, he taunted:

If you’re going to win and if you’re so certain about it, come and do your deal.

But for most scientists, their “deal” is a careful process of observation, experimentation, and peer review — even when it doesn’t fit between commercial breaks.

However Pruitt manages his red team/blue team exercise, it can’t alter the conclusions of the massive body of climate research developed by thousands of scientists over decades of conscientious inquiry.

4. The American public supports policies to address climate change

One argument that Administrator Pruitt advanced for his red team/blue team exercise is that “the American people would be very interested in consuming that.”

Actually, Americans in every state have already shown an appetite for addressing climate change.

A recent survey found that large majorities of Americans support regulating greenhouse gases as a pollutant, setting strict carbon dioxide limits on existing coal-fired power plants, and requiring utilities to produce 20 percent of their electricity from renewable sources.

In fact, each of those policies garnered majority support in every Congressional district in America.

A majority of Americans opposed the decision to withdraw from the Paris climate agreement, as did the CEOs of many prominent businesses.

And the Clean Power Plan was supported in court by a broad and diverse coalition of 18 states, 60 cities, public health experts, leading business innovators (including Google, Apple, Amazon, and Microsoft), leading legal and technical experts, major consumer protection and low-income ratepayer organizations (including Consumers Union and Public Citizen), faith groups, more than 200 current and former members of Congress, and many others. (You can read their legal briefs on EDF’s website.)

Administrator Pruitt’s legal and scientific distortions show no sign of abating, and neither does his destructive rollback of public health and environmental protections. But his efforts have been rife with legal deficiencies. As EDF President Fred Krupp recently wrote, Pruitt “may have finally met his match: the law.”

Shortly after the D.C. Circuit blocked Pruitt from suspending protections from oil and gas pollution, and in the face of legal challenges from EDF and many others, Pruitt withdrew his unlawful delay of another Clean Air Act protection – the implementation of a national health-based smog standard.

EDF will continue to demand that Pruitt fulfill his solemn responsibility to protect the health of our communities and families under our nation’s bipartisan and time-tested environmental laws.

Posted in Basic Science of Global Warming, Clean Air Act, Clean Power Plan, Greenhouse Gas Emissions, Policy, Science, Setting the Facts Straight| Comments are closed

The Tenth Anniversary of Massachusetts v. EPA

U.S. Supreme Court

If it feels like we’re being inundated with bad news about federal climate policy, here’s a cause for hope – today marks the tenth anniversary of the Supreme Court’s decision in Massachusetts v. EPA, one of the most important environmental cases in our nation’s history.

The Supreme Court’s landmark decision in Massachusetts came when the U.S. Environmental Protection Agency (EPA) under the George W. Bush administration was refusing to carry out its responsibilities under the Clean Air Act to address climate pollution.

The case arose from a petition filed in 1999 by citizens, conservation and environmental groups that asked EPA to limit climate pollution under the Clean Air Act. But under President Bush, EPA disavowed its obligation to address climate pollution. At the time, EPA relied on the dubious argument that dangerous climate pollutants emitted into the air somehow didn’t qualify as “air pollutant[s]” under the statute.

Massachusetts, states, cities and a coalition of environmental organizations – including EDF –sought judicial review of that decision, and on April 2, 2007, the Supreme Court rejected EPA’s unlawful claim, ruling that carbon dioxide and other greenhouse gases qualified as air pollutants “without a doubt … The statute is unambiguous.”

The Supreme Court also forcefully rejected the Bush EPA’s “laundry list of reasons” not to address climate pollution. The high Court held that protection of human health and the environment from air pollution under our nation’s clean air laws — including protecting the millions of Americans afflicted by the clear and present danger of climate change — must be rooted in science, not politics or expediency.

This historic Supreme Court decision settled that addressing climate pollution is EPA’s responsibility in carrying out the Clean Air Act, holding:

[G]reenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant.’

Protecting Americans from climate pollution — dangerous air pollution — is the intent, is the purpose, and is provided for under our nation’s vibrant bipartisan clean air laws.

In honor of Massachusetts v. EPA’s tenth anniversary, let’s celebrate this firm and enduring Supreme Court decision and the real-world benefits it has for millions of Americans — and let’s prepare to defend the vital safeguards that followed it. We also celebrate signs of climate progress across society, such as the more than 1,000 businesses and investors that have committed to addressing climate change through implementation of the Paris Climate Agreement. 

Climate Protections under Massachusetts v. EPA

As it turns ten, Massachusetts v. EPA is more relevant than ever. To carry out its responsibility to protect human health and the environment from dangerous climate pollution, EPA has established common sense limits on the pollution discharged from tailpipes, smokestacks, and oil and gas development activities. These actions are fundamental to our nation’s response to climate change and provide enormous health, economic, and environmental benefits to the American people.

Once Clean Cars Standards are fully implemented in 2025:

  • Increased efficiency will provide savings of more than $8,000 in gasoline over the lifetime of a vehicle, compared to a similar vehicle in 2010. Across America, the Clean Cars Standards will save Americans more than $1 trillion at the pump.
  • Americans will have saved 12 billion barrels of oil, increasing U.S. energy security.
  • When new cars are purchased with financing—as they are for most Americans—the fuel savings produce immediate net benefits for American consumers.
  • The auto industry has been beating these standards while adding jobs and achieving record vehicle sales.

Under EPA’s Clean Trucks Standards:

  • Over the lifetime of vehicles covered by the Phase 1 Standards (model years 2014-2018), the standards will save 530 million barrels of oil and yield fuel savings of $50 billion. An operator of a large freight truck is expected to have net savings up to $73,000 over the useful life of a new truck.
  • Over the lifetime of vehicles covered by the Phase 2 Standards (model years 2019-2029), the standards will reduce 1 billion tons of carbon pollution, save nearly 2 billion barrels of oil and save truck owners $170 billion in fuel costs. The Phase 2 benefits are in addition to the benefits of simply leaving the Phase 1 Standards in place.
  • These fuel cost savings will save hard-earned money for truckers and U.S. consumers alike. The Consumer Federation of America found that rigorous fuel economy and climate pollution standards could save American households $250 annually in the near term and $400 annually by 2035 on goods and services.

Once the Clean Power Plan — our first and only national limits on climate pollution from existing power plants — is fully implemented:

  • Americans will breathe cleaner air, which will prevent up to 3,600 premature deaths and 90,000 childhood asthma attacks every year.
  • Average electric bills could decline by as much as 11 percent, due in part to cost-effective energy efficiency measures.
  • Existing power plants’ carbon dioxide pollution will fall approximately 32 perent from 2005 levels. The U.S. has already achieved about two-thirds of that reduction.

Under EPA’s methane pollution standards for new oil and gas operations:

  • Methane pollution will be reduced by 510,000 short tons in 2025, which has the same 20-year climate benefit as closing 11 coal-fired power plants or taking 8.5 million cars off the road.
  • Less natural gas will be wasted, preserving America’s natural resources.
  • These common-sense limits on methane will also reduce 210,000 tons of dangerous smog-forming pollution and 3,900 tons of toxic, carcinogenic pollutants like benzene in 2025.
  • These clean air standards are extremely cost-effective.
  • These standards will also boost America’s vibrant methane mitigation industry—which is already creating jobs and investment in at least 500 different locations across 46 states, especially in major energy-producing states like Texas, Oklahoma, Ohio, and Pennsylvania.

The protections that flow from Massachusetts v. EPA are helping to yield a safer climate for our children, protect the health of our communities, save energy and money for families across America, and build a prosperous clean energy economy. It is not surprising that these safeguards have broad support across red, blue and purple America. In every Congressional district, a majority of adults supports limiting carbon dioxide emissions from existing coal-fired power plants.

Scott Pruitt Is Evading his Obligations under Massachusetts v. EPA

Unfortunately, EPA Administrator Scott Pruitt is trying to evade his obligation to address climate pollution. Since taking his oath as Administrator, Pruitt has repeatedly tried to sow doubt as to whether climate pollution should be regulated under the Clean Air Act — demonstrating a profound disregard for the Supreme Court’s holding in Massachusetts.

Make no mistake – EPA’s obligation to address climate pollution under the Clean Air Act is a settled question in American law.

Climate Pollution Meets the Definition of “Air Pollutant” under the Clean Air Act

Under the Bush Administration, EPA argued that climate pollutants could not be “air pollutants” under the Clean Air Act on the convoluted grounds that “EPA lacks regulatory authority to address global climate change.”

But in Massachusetts, the Supreme Court held that “the Clean Air Act’s sweeping definition of ‘air pollutant’” clearly authorizes EPA to regulate climate pollution.

Moreover, the Court recognized that the Clean Air Act was intentionally written with “broad language … to confer the flexibility necessary to” meet challenges like climate pollution, and EPA cannot dodge its obligations with “policy judgments … [that] have nothing to do with whether greenhouse gas emissions contribute to climate change.”

In other words, EPA has to base its actions on law and science, not politics.

Massachusetts involved a petition to regulate pollution from motor vehicles, but the Supreme Court has repeatedly affirmed that climate pollution from other sectors, including power plants, is also subject to Clean Air Act regulation.

In American Electric Power v. Connecticut (AEP), the Court determined:

Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act … And we think it equally plain that the Act ‘speaks directly’ to emissions of carbon dioxide from the … [power] plants.

The Court went on to identify a specific section of the Clean Air Act under which EPA could issue such protections. EPA subsequently finalized pollution limits — including the historic Clean Power Plan — under that very section.

A few years after AEP, in Utility Air Regulatory Group v. EPA, the Court stood by its finding that the Clean Air Act covered climate pollution from power plants and held that new and modified industrial facilities must also limit their climate pollution.

Administrator Pruitt has publicly doubted whether EPA has the “tools” under the Clean Air Act to address climate change. This is just a feeble variation of the George W. Bush Administration’s stale claim rejected by the Supreme Court a decade ago. In fact, the Supreme Court has recognized that multiple programs under the Clean Air Act are suitable for addressing climate pollution — and EPA has adopted several achievable, common-sense climate safeguards that are already protecting American communities while supporting cost-saving efficiencies. Administrator Pruitt is invoking long-discredited arguments to avoid responsibility for addressing life-threatening pollution.

The Science of Climate Change is Clear

A few weeks ago, Administrator Pruitt told CNBC that he “would not agree that [carbon dioxide is] a primary contributor to the global warming that we see.”

But as far back as Massachusetts, the Supreme Court found that “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere” as recognized by “[r]espected scientists” and called carbon dioxide “the most important species … of a ‘greenhouse gas.’”

Following Massachusetts, EPA initiated a rigorous, scientific, peer-reviewed analysis of the effects of carbon dioxide and five other climate pollutants. In 2009, after reviewing an expansive body of scientific evidence reflecting hundreds of peer reviewed studies, EPA determined that the pollutants:

[M]ay reasonably be anticipated to endanger public health and to endanger public welfare.

EPA’s determination, or Endangerment Finding, was resoundingly upheld in the U.S. Court of Appeals for the District of Columbia Circuit in Coalition for Responsible Regulation v. EPA, based largely on the “substantial record evidence that anthropogenic emissions of greenhouse gases ‘very likely’ caused warming of the climate over the last several decades.”

In the CNBC interview, Administrator Pruitt offered no evidence to support his views about carbon dioxide and climate change. That’s unsurprising because the scientific evidence is not on his side. As EPA observed in its 2015 carbon dioxide standards for new power plants, since the Endangerment Finding was finalized:

The facts, unfortunately, have only grown stronger and the potential adverse consequences to public health and the environment more dire.

The science overwhelmingly shows that climate pollution is causing dangerous climate change. EPA has a statutory obligation to address it under the Clean Air Act.

The Clean Air Act is a Statute to Protect Public Health and the Environment

Massachusetts prohibited EPA from touting “some residual uncertainty” about climate science as an excuse for inaction. EPA must act if it can “mak[e] a reasoned judgment” that “greenhouse gases contribute to global warming.”

When a three-judge panel of the D.C. Circuit unanimously upheld EPA’s Endangerment Finding, it explained that the Clean Air Act’s:

[L]anguage requires a precautionary, forward-looking scientific judgment about the risks of a particular air pollutant, consistent with the [Act’s] precautionary and preventive orientation. Requiring that EPA find ‘certain’ endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it. (internal citations omitted)

The science, which was already clear when the Supreme Court decided Massachusetts in 2007, has only grown clearer in the intervening decade. For instance:

  • Since record keeping began in 1880, the five hottest years globally have all occurred since 2007.
  • Sea levels have risen at increasing rate.
  • The ten summers with the lowest minimum Arctic sea ice extent coincide exactly with the ten summers since Massachusetts was decided. And 2017 has already attained a grim status as the third consecutive year with a record low extent of winter Arctic sea ice.
  • In February 2007, atmospheric carbon dioxide averaged 383.90 parts per million. In February 2017, it averaged 406.42 ppm. The years 2015 and 2016 saw the two biggest annual increases ever recorded.

The Clean Air Act does not require us to watch idly as coastlines disappear, increased instanced of extreme weather such as severe flooding and superstorms cause loss of life and alter lives forever, and more frequent heatwaves threaten vulnerable populations like children and the elderly. It requires action. EPA has an obligation to act to protect public health and the environment by addressing climate pollution in order to reduce the tragic consequences of climate change, which are already unfolding.

The Legacy of Massachusetts v. EPA

Ten years on, Massachusetts v. EPA stands for EPA’s responsibility to address climate change based on law and science. Massachusetts also stands for the ability — and the imperative — to achieve victories for public health and the environment under adverse political conditions. With Administrator Pruitt at the helm of environmental policymaking in the U.S., we have no illusions about the challenges that lie ahead. But there will also be opportunities – opportunities to secure near-term reductions of dangerous pollution, and opportunities to lay the foundation for more progress in the years ahead, all anchored in law and science.

We can’t afford to let climate change accelerate unchecked for the next four years, and Massachusetts inspires us to keep working to protect all Americans from this clear and present danger.

Posted in Cars and Pollution, Clean Air Act, Clean Power Plan, EPA litgation, Greenhouse Gas Emissions, Policy| Comments are closed
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