Monthly Archives: February 2017

EPA Has the Responsibility and the Tools to Address Climate Pollution Under the Clean Air Act

(EDF Attorney Ben Levitan co-authored this post)

It’s barely a week since Scott Pruitt was confirmed as EPA Administrator, and he has already provided yet another indication of why he has no business leading the agency.

In an interview with The Wall Street Journal, Pruitt says he wants to undertake a “careful review” as to whether EPA has the “tools” to address climate change under the Clean Air Act. Pruitt further states that EPA should withdraw the Clean Power Plan – a vital climate and public health measure to reduce carbon pollution from the nation’s power plants – and instead wait for Congress to act on the issue of climate change.

Those statements are contrary to the law and disconnected from reality. As Pruitt surely knows, the federal courts – including three separate decisions of the Supreme Court – have made it abundantly clear that the Clean Air Act requires EPA to protect the public from dangerous pollutants that are disrupting our climate. The courts have repeatedly rejected Pruitt’s theory that climate pollution is an issue that only Congress can address through new legislation.

Over the last eight years, EPA has demonstrated that the Clean Air Act is an effective tool for addressing the threat of climate change — by putting in place common sense, highly cost-effective measures to reduce climate pollution from cars and trucks, power plants, oil and gas facilities, and other sources. These actions under the Clean Air Act are saving lives, strengthening the American economy, and yielding healthier air and a safer climate for our children.

Pruitt’s casual willingness to abandon that progress based on a discredited legal theory demonstrates deep contempt for the laws he is charged with administering and the mission of the agency he now leads.

EPA Is Legally Obligated to Address Climate Pollution

The Supreme Court has repeatedly held that EPA clearly has the authority and responsibility to address climate pollution under the Clean Air Act:

  • In Massachusetts v. EPA (549 U.S. 497, 2007), the Supreme Court held that climate pollutants plainly fall within the broad definition of “air pollutants” covered by the Clean Air Act. The Court ordered EPA to make a science-based determination as to whether those pollutants endanger public health and welfare (a determination that EPA ultimately made in 2009, and that has been upheld by the federal courts).
  • In American Electric Power v. Connecticut (564 U.S. 410, 2011), the Supreme Court held that the Clean Air Act “speaks directly” to the problem of climate pollution from power plants.
  • In Utility Air Regulatory Group v. EPA (134 S. Ct. 2427, 2014), the Supreme Court held that the Clean Air Act obligated EPA to address climate pollution from new and modified industrial facilities.

In Massachusetts v. EPA, the Bush Administration’s EPA made — and the Supreme Court rejected —Pruitt’s same argument that EPA lacks the authority and tools to address climate pollution.

The Supreme Court said in no uncertain terms that:

The statutory text forecloses EPA’s reading … Because greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’ we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles. (emphasis added)

The Supreme Court went on to explain that – contrary to what Pruitt is now saying – Congress intended to provide EPA with the tools it needed to address new air pollution challenges, including climate change:

While the Congresses that drafted [the Clean Air Act] might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language [of the Act] reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. (emphasis added)

The Court also found that nothing about climate pollution distinguishes it from other forms of air pollution long regulated under the Clean Air Act. It rejected the Bush Administration’s attempt to argue that climate pollution is somehow “different,” saying that theory was a “plainly unreasonable” reading of the Clean Air Act and “finds no support in the text of the statute.”

That was the law under the Bush Administration – and it remains the law today. It is a binding, rock-solid precedent regardless of who is running EPA at any given time.

Pruitt ought to know all this, because he was one of the Attorneys General who joined polluters and their allies in challenging EPA’s determination that climate pollution endangers public health and welfare.

That 2009 determination was in response to Massachusetts v. EPA, and it was based on an immense body of authoritative scientific literature as well as consideration of more than 380,000 public comments. Yet in their legal challenge to the determination, Pruitt and his allies again argued that EPA should have declined to make an endangerment finding based on the supposed difficulty of regulating climate pollution under the Clean Air Act.

A unanimous panel of the D.C. Circuit rejected those claims, finding that:

These contentions are foreclosed by the language of the statute and the Supreme Court’s decision in Massachusetts v. EPA … the additional exercises [state and industry challengers] would have EPA undertake … do not inform the ‘scientific judgment’ that [the Clean Air Act] requires of EPA … the Supreme Court has already held that EPA indeed wields the authority to regulate greenhouse gases under the CAA. (Coalition for Responsible Regulation v. EPA, 684 F.3d 102, D.C. Cir. 2012, emphasis added)

The Supreme Court did not even regard further challenges to the endangerment finding as worthy of its review. (See Order Denying Certiorari, Sub Nom Virginia v. EPA, 134 S.Ct. 418, 2013)

Pruitt’s suggestion that EPA should stop applying the Clean Air Act’s protections to an important category of pollutants – greenhouse gases – amounts to a repeal of Congress’s core judgment that all air pollutants that cause hazards to human health and the environment need to be addressed under the Clean Air Act. It is an audacious and aggressive effort to alter the Clean Air Act in a way that Congress has never done (and has specifically declined to do when such weakening amendments have been proposed).

EPA Has Established a Strong Record of Successful Climate Protections

Pruitt’s statements also ignore the pragmatic way in which EPA has carried out its legal obligations to address climate pollution. Since Massachusetts v. EPA was decided, EPA has issued common sense, cost-effective measures for major sources of climate pollution – including power plants; cars and trucks; the oil and gas sector; and municipal solid waste landfills.

These actions demonstrate that Pruitt is flatly wrong to suggest that EPA lacks the “tools” to address climate change under the Clean Air Act. They include:

  • The Clean Power Plan will reduce carbon pollution from the nation’s power plants to 32 percent below 2005 levels by 2030, while providing states and power companies with the flexibility to meet their targets through highly cost-effective measures – including shifting to cleaner sources of generation and using consumer-friendly energy efficiency programs that would reduce average household electricity bills by $85 per year. The Clean Power Plan will protect public health too, resulting in 90,000 fewer childhood asthma attacks, 300,000 fewer missed school and work days, and 3,600 fewer premature deaths every year by 2030. The value of these health benefits alone exceeds the costs by a factor of four, and the climate benefits are roughly as large.
  • EPA’s standards for cars and other light-duty vehicles, will save the average American family $8,000 over the lifetime of a new vehicle through reduced fuel costs – while saving 12 billion barrels of oil and avoiding 6 billion metric tons of carbon pollution. A recent analysis by EPA and the U.S. Department of Transportation found that manufacturers are reaching these standards ahead of schedule and at a lower cost than originally anticipated.
  • The most recent Clean Truck Standards, which were finalized in August 2016, will save truck owners a total of $170 billion in lower fuel costs, ultimately resulting in $400 in annual household savings by 2035 – while also reducing carbon pollution by 1.1 billion tons over the life of the program. These benefits are one reason why the Clean Truck Standards have broad support from manufacturers, truck operators, fleet owners and shippers.
  • EPA’s methane emission standards for new and modified oil and gas facilities, finalized in June 2016, will generate climate benefits equivalent to taking 8.5 million vehicles off the nation’s roads – while having minimal impact on industry.

When Scott Pruitt suggests that the Clean Air Act is a poor fit for regulating climate pollution, he overlooks the clear command of the statute, as confirmed repeatedly by the Supreme Court. He also ignores EPA’s successful history of issuing regulations that protect the environment while promoting significant health and economic benefits.

Pruitt might try to distort the truth in an effort to wipe climate protections off the books — subjecting our children and grandchildren to the dire health, security and economic effects of unlimited climate pollution in the process. But the law and the facts are not on his side.

EPA must address climate pollution under the Clean Air Act, and it has the tools to do so effectively.

Posted in Cars and Pollution, Clean Air Act, Clean Power Plan, EPA litgation, News, Policy / Comments are closed

Congressional Review Act: A Law of Unintended and Long-Lasting Consequences

3802348922_e99184a252_bWith legislation flying fast and furious through the Capitol – much of it using new or unusual legal mechanisms – lawmakers today must be doubly mindful of unintended consequences. Case in point: Actions rushed through the House and Senate under an obscure law called the Congressional Review Act (CRA), the details of which can cause deeper, more lasting impact than the simple name implies.

The CRA dates to the 1990s. It says that any rule finalized by a federal agency can be subject to an expedited congressional repeal for 60 legislative days after the agency sends up a copy of the final rule and a report detailing the reasons for its promulgation. Within that window, either chamber can introduce a joint resolution of disapproval – which, if passed by both houses of Congress and signed by the president, effectively voids the rule.

The law sounds simple enough. But it leaves a lot of room for error or mischief.

The CRA enjoys fast-track privileges, allowing a CRA bill to go straight to the floor without committee hearings. A so-called resolution of disapproval can be brought up at any time, with little or no notice. In the Senate, passage requires only a simple majority (51 votes). The measures are not subject to filibuster.

Until January, only one such resolution had ever been passed and signed into law, and the CRA has never been tested in court. But now there are at least 10 different CRA actions moving through the House and Senate. It’s worth a close look at what those measures would really do.

Hands Tied

If the President signs the joint resolution, the agency rule is voided. What’s more, that agency is forever barred from issuing any rule that is “substantially the same” as the as the one voted down. And therein lies the most serious problem.

Because this vague provision has never been clarified by the courts, agencies will almost certainly hesitate to undertake a new rule on the same topic, no matter how serious and well founded the action might be or regardless of new information (this is exactly what happened to the Occupational Safety and Health Administration, the only agency so far to have a rule disapproved through the CRA).

In short, CRA disapproval is a drastic and extreme legislative move that shouldn’t be undertaken lightly by either political party.

CRA Attack on BLM Waste Rule Defies Logic

Take for example the CRA resolution passed last week by the House of Representatives, which would roll back a Bureau of Land Management rule requiring oil and gas companies operating on millions of acres of federal and tribal land to take cost-effective, common-sense steps to reduce nearly 110 billion cubic feet of taxpayer-owned natural gas they currently waste each year through leaks, venting, or simply burning it off (called flaring).

That gas is worth an estimated $330 million dollars annually — more than $1.5 billion since 2013 — and is enough to supply every home in a city the size of Chicago for a year. Besides squandering a valuable energy resource, the waste generates air pollution affecting the health of millions of Americans.

BLM’s much-needed and long-overdue standards to address this problem took years to craft, and reflect input received in over 300,000 public comments.  Industry lobbyists have glibly suggested that a resolution of disapproval means that rule could somehow be sent back to the agency for a redo. But this is not how the CRA works. Lawmakers in that chamber need to understand this critical difference before they vote.

Waking Up to the Problem

The good news is lawmakers in both houses appear to be increasingly aware of the issues involved with the CRA. A resolution roll back the BLM rule passed the House on a vote of 221-191, with a record 11 Republicans voting no (and three Democrats voting yes).

The bill is could hit the Senate floor at any time. Before they vote, Senators should step back and understand that the CRA resolution offers up an axe in place of the scalpel that many are seeking, and weigh their decision accordingly. We need our lawmakers to stand up for their constituents – American taxpayers – to promote their interests over the needs of the oil and gas lobby.

Image source: Flickr/k3nna

Posted in Policy / Comments are closed

Scott Pruitt’s Misleading Senate Testimony – Will ‘Alternative Science’ Replace Real Science at EPA?

Earth as seen from a NOAA weather satellite. Photo: NOAA/NASA

As a climate scientist who is trained to base his conclusions strictly on scientific evidence and not politics, I find it particularly troubling that Scott Pruitt, President Trump’s pick to head the U.S. Environmental Protection Agency (EPA), is misrepresenting the scientific data that shows the earth’s atmosphere is warming.

Pruitt hopes to run the agency responsible for protecting the lives and health of Americans from environmental threats, and that includes reducing greenhouse gas emissions that are warming the planet. And as the Supreme Court has ruled, EPA has the authority to address greenhouse gases.

However, in his testimony before the Senate Environment and Public Works Committee on January 18, and then in follow-up written answers to Senators, Pruitt made several misleading, or flat-out inaccurate, statements.

In his attempt at subterfuge, Pruitt leaned on false and misleading climate-skeptic myths that have been debunked time and time again.

For instance, consider this one question and answer:

Written question from Sen. Jeff Merkley: Are you aware that each of the past three decades has been warmer than the one before, and warmer than all the previous decades since record keeping began in the 1880s? This trend is based on actual temperature measurements. Do you believe that there is uncertainty in this warming trend that has been directly measured? If so, please explain.

Written answer from Scott Pruitt: I am aware of a diverse range of conclusions regarding global temperatures, including that over the past two decades satellite data indicates there has been a leveling off of warming, which some scientists refer to as the “hiatus.” I am also aware that the discrepancy between land-based temperature stations and satellite temperature stations can be attributed to expansive urbanization within in our country where artificial substances such as asphalt can interfere with the accuracy of land-based temperature stations and that the agencies charged with keeping the data do not accurately account for this type of interference. I am also aware that ‘warmest year ever’ claims from NASA and NOAA are based on minimal temperature differences that fall within the margin of error. Finally, I am aware that temperatures have been changing for millions of years that predate the relatively short modern record keeping efforts that began in 1880. (Questions for the Record, page 145)

In response to the scientific evidence that the last three decades have each been warmer than the one before it, Mr. Pruitt offered negligent claims that both the satellite data and surface based observations have shown there to be no warming over the last two decades – the so-called global warming hiatus.

Science does not agree with this assessment.

The idea of a hiatus and a potential discrepancy between satellite and surface based data have been under intense objective scrutiny by the scientific community for some time – and the results are in:

  • NOAA scientists recently published a peer reviewed article in the Journal Science that clearly shows the “hiatus” to have never existed.
  • Then last month a follow up study, undertaken by a separate group of researchers as an objective check on the NOAA result, also confirmed that the global warming hiatus never happened.
  • Additionally, the alleged satellite discrepancy has also been debunked – its origin an artifact of necessary, but potentially faulty, post-processing techniques that are employed when using data gathered by a satellite from space, as opposed to direct surface temperature measurements from thermometers. Stated plainly, raw satellite observations from space are not as accurate as those taken in the actual location, so these raw observations need to be quality controlled for scientific accuracy.

Next, in the same answer, in what can only be described as countering his own misguided narrative, Pruitt attempted to blame the increasing temperature trend – which he just stated did not exist via the hiatus argument – on an unfounded discrepancy between satellite based and urban land based data.He claimed the increase in urbanization was causing a fictitious rise in global temperature – an impact long shown to be minimal at best, especially when applied to the massive geographic expanse of the world relative to the lesser change in the geographic extent of cities.

Pruitt went on to quibble with the fact that 2016 was the warmest year ever recorded, by overemphasizing the role of negligible differences in how various scientific agencies around the world calculate the globally averaged temperature.

Actually, the diversity of approaches is a scientific strength, because it provides a balanced view of the data – much like seeking a second opinion on a medical diagnosis. It’s vital to note that despite these trivial differences in methodology, the three long-running analyses by NASA, NOAA, and Great Britain’s UK Met Office all showed 2014 to 2016 to be the three consecutive warmest years on record. This fact is indisputable.

Pruitt concluded his misdirection by pointing out his awareness that temperatures have been changing for millions of years, and predating the relatively short modern record. Mr. Pruitt is indeed correct that the rapid warming in recent decades is quite alarming in the context of the much slower and longer term natural changes – although I don’t think that was what he was trying to say.

Pruitt seemed unaware of the latest scientific evidence on the various topics he chose to explore during his testimony. That indicates an ignorance of science coupled with a lack of preparation which adds up to being unfit to lead a scientifically-based government agency.

Posted in Basic Science of Global Warming, Greenhouse Gas Emissions, News, Policy, Science, Setting the Facts Straight / Read 3 Responses

Less Science, More Cost: Why the Misguided “Secret Science” Bill Is Bad Policy

shutterstock_3243574012It’s a good idea for the U.S. Environmental Protection Agency (EPA) to rely on the best, most up-to-date science in making its decisions.

Seems like a fairly basic point — but recent legislation aims to thwart EPA’s ability to do so.

Rep. Lamar Smith’s (R-TX) “Secret Science Reform Act” will reportedly be back again this year and soon be on the move.  The bill would prohibit EPA from finalizing an action unless “all scientific and technical information relied on to support” the action is “publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results.”

Like so many misleadingly-named bills of the past, this bill tries to sound like common sense – but in fact, it would do great damage to human health and the environment, as well as to a predictable regulatory environment for business.

A Blindfolded EPA

Here’s the first problem: to make informed decisions, some of the data EPA needs to use can’t be made public without doing damage to real people or to businesses.

Almost all of EPA’s work touches on issues of human health — relying, for example, on research that uses health records of asthma sufferers and their asthma attacks to see if they are associated with air pollution.

Data that involve private medical records of individual patients cannot – ethically or legally – be made fully public.

Here’s another example: businesses sometimes claim that information about their operations is legally protected from public release because it is “confidential business information.”

But under this legislation, EPA would be barred from relying on any study or any analysis unless they made all the underlying information publicly available.

What would be the real-world result for the safety of our air and water and the products we use?

Under this legislation, EPA decision-making would grind to a halt. For instance:

  • EPA would no longer be able to establish limits on emissions of hazardous air pollution into our air if a business claimed that any of the information EPA used to create the Clean Air Act protection was “confidential business information” that could not be released.
  • EPA could no longer issue national air quality standards that rely on studies about the health impacts of pollution if the studies relied in any part on confidential patient health data.
  • EPA could not make decisions about the safety of chemicals because such decisions would necessarily rely on information representing industry trade secrets.

EPA properly relies on peer-reviewed scientific research, and industry studies and data, to inform its efforts to protect public health and the environment. Particularly for health research, studies often involve confidential data that researchers are prohibited by law from disclosing. This legislation would force EPA to pretend that none of this valuable research exists when making substantial agency decisions.

The end result? Our health and environment is put at risk.

Congressional Budget Office Says It Will Cost Hundreds of Millions of Dollars to Implement

Here’s a second problem: even setting aside the enormous confidentiality problems in this legislation, it would be extremely costly to implement.

The “Secret Science” bill authorizes just $1 million in expenditures per year. But the Congressional Budget Office (CBO) estimates that implementing this bill would cost approximately $1 billion to implement over the next four years — and that’s their middle estimate.

CBO estimates that EPA relies on about 50,000 scientific studies every year to accomplish its mission — so providing public online access to all of the underlying data and information is an expensive proposition.

Alternatively, if EPA presses ahead on the basis of a smaller number of studies, EPA protections would be less well-informed and may not reflect the latest science. They could also be inaccurate or incomplete — and thus more vulnerable to legal challenges that would delay the implementation of important public health protections or timely decisions affecting industry operations.

CBO’s own predicted result?

  • “CBO expects that EPA would modify its practices, at least to some extent, and would base its future work on fewer scientific studies, and especially those studies that have easily accessible or transparent data.”
  • “On balance — recognizing the significant uncertainty regarding EPA’s potential actions under the bill — CBO expects that the agency would probably cut the number of studies it relies on by about one-half … CBO estimates the incremental costs to the agency would be around $250 million a year initially, subject to appropriation of the necessary amounts. In our assessment that figure lies near the middle of a broad range of possible outcomes.”
  • “If EPA continued to rely on as many scientific studies as it has used in recent years, while increasing the collection and dissemination of all the technical information used in such studies as directed by H.R. 1030, then implementing the bill would cost at least several hundred million dollars a year.”

The challenges of meeting these huge expenses are enormous. They’re even more daunting in light of simultaneous efforts by EPA’s opponents in Congress to dramatically curtail the agency’s budget.

Bedrock Safeguards Subject to Delay and Uncertainty

Here’s a third problem: the bill would prohibit EPA from finalizing an action unless all information relied on is “publicly available in a manner that is sufficient for independent analysis and substantial reproduction of research results.” Yet for many key health studies, it could take years — decades even — to “reproduce” some key research.

Some of the most rigorous, crucial health studies are based on health data that is collected over many years — for example, studies that follow a group of people over time to understand how their health is affected by environmental conditions. Such data is how we recognized that smoking causes cancer, to cite just one example.

By their very nature, results from such “longitudinal studies,” which may involve thousands of people, cannot be readily and rapidly “reproduced” as a laboratory study on mice might be. Yet such studies, when carefully designed and executed, can be among the most powerful in shedding light on how pollution impacts our health.

The troublingly vague language in this bill could be interpreted to mean that research results can only be used if time has been allowed for reproduction of research results. This presents EPA with an array of bad options: incurring enormous delay and expense to reproduce even the most sound, rigorous studies, even when other research already supports their findings; moving ahead on the basis of limited science and ignoring crucial health insights from the latest research and from longitudinal studies; or moving ahead with the benefit of insights from these studies—but facing needless uncertainty and litigation risk due to the troublingly vague language in the bill. Whichever way, EPA’s ability to protect human health and the environment would be undermined.

Best Available Science

Why would anyone support this legislation that would force EPA to rely on less science at more cost to taxpayers?

Well, it would benefit big polluters who would be handed more ways to pick apart EPA safeguards in court — or stop their creation in the first place. But for the rest of America’s businesses, it could increase uncertainty and economic challenges, because EPA would be hindered in using the industry’s own information in making decisions. And for American families, who would be put at risk by less informed safeguards, the “Secret Science” bill is a bad idea for science and for public health.

It’s just plain wrong to suggest that EPA relies on “secret” data. EPA depends on the best, most up-to-date science – including university research and industry analyses that are available to the public, but that rely on confidential data and information properly protected from disclosure under the law and under common decency.

Update: The new version of the bill has been introduced, with very small changes, under a new title – the Honest and Open New EPA Science Treatment Act (HONEST Act)

Posted in Health, Science / Comments are closed