Environmental groups sue EPA over efforts to block California from limiting vehicle contribution to climate change

Traffic on I-5 in the Los Angeles metropolitan area, 2012 (photo courtesy Wikimedia Commons, licensed under Creative Commons Attribution-Share Alike 3.0 Unported license).

Eleven environmental organizations have challenged the Trump administration’s move to set uniform national fuel economy standards that would effectively prevent California from maintaining its unique tight limits on motor vehicle greenhouse gas emissions.

The groups filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit on Nov. 22, alleging that the National Highway Traffic Safety Administration regulation violates the Clean Air Act.

NHTSA, an agency of the Department of Transportation, finalized the so-called Safer Affordable Fuel-Efficient Vehicles Rule on Sept. 19.

The Environmental Protection Agency simultaneously announced that it was revoking California’s waiver of preemption under the Clean Air Act.

The agencies’ regulation asserts that a 1975 law called the Energy Policy and Conservation Act revoked California’s power to set pollution limits more restrictive than the rest of the nation, a power granted the Golden State by a 1967 statute and incorporated into the Clean Air Act of 1970.

EPA has also claimed that California’s Clean Cars Program forces motor vehicle manufacturers to adopt technology that is not feasible.

California’s autonomy to address motor vehicle pollution has been attacked by a Republican presidential administration before. In 2008 EPA, then under the leadership of a George W. Bush appointee, denied California the ongoing waiver of preemption specified by CAA for the state’s unique regulatory program. The Obama administration later reversed that decision and granted the waiver.

The most current assault on California’s program, which aims to reduce greenhouse gas pollution from the state’s huge number of motor vehicles, was signaled by secretary of transportation Elaine Chao and Environmental Protection Agency administrator Andrew Wheeler in August 2018.

Motor vehicles are the nation’s second-most prolific source of greenhouse gas pollutants. Fourteen states, including the District of Columbia, have adopted California’s motor vehicle emissions standards. Together, these jurisdictions account for more than forty percent of the nation’s population and more than one-third of U.S. light motor vehicle sales. Their choice to incorporate the Golden State’s low emission vehicle criteria into their law is permitted states by section 177 of the Clean Air Act.

The Trump regime’s argument that EPCA precludes California from establishing its own pollutant limits was rejected by two federal courts in 2007 – one in Vermont, one in California. In addition, the U.S. Supreme Court has indicated skepticism of the argument:

[T]hat DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public health and welfare . . . a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency. The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.

The technological feasibility argument also appears likely to run into judicial doubt. A 1979 decision by the DC Circuit suggests that the burden would be on the regime to prove, after five years of manufacturer compliance, that the Clean Cars Program forces the manufacturers to make products for which technology is not available.

On Nov. 15 a coalition of 23 states and several cities asked a federal district court to nullify the revocation of California’s Clean Air Act preemption waiver. Those same jurisdictions separately filed, on Sept. 20, a petition for review in the DC Circuit to challenge the NHTSA fuel economy standards regulation.

Environmental groups have also challenged the revocation of the preemption waiver in the U.S. District Court for the District of Columbia.

Several automakers intervened in the states’ DC Circuit case on Oct. 28.

The environmental organization’s DC Circuit case is Sierra Club et al. v. U.S. Environmental Protection Agency et ux.

 

 

COMMENTARY: Trump EPA transition team dominated by climate science deniers; nation and planet deserve better

When President-elect Donald J. Trump assumes office as the nation’s 45th chief executive in 15 days, he will gain the authority to determine, in large part, the extent to which the nation addresses the growing threat of anthropogenic climate change. His appointees to administer the nation’s Clean Air Act, the only U.S. statute available to force a reduction in greenhouse gas emissions, will be in a position to continue the country’s recent progress in transitioning away from a destructive dependence on coal, oil, and natural gas for energy.

Unfortunately, the personnel entrusted by Trump to manage the transition to a new administration at the U.S. Environmental Protection Agency have instead demonstrated an eagerness to deny scientific knowledge about the impacts of human fossil fuel use on the planet’s atmosphere and oceans.

The chairperson of Trump’s EPA transition team, Myron Ebell, personifies the ignorance and stubbornness of the men and women who have invaded EPA’s offices in an apparent quest to turn the country’s anti-pollution agency into a booster of the fossil fuel industries.

Ebell, 63 and lacking any education or experience as a scientist, is fanatical in his denial of climate science. He has accused climatologists of being a “gang” that has “cooked the data.” He has said that the principal conclusions of climate science, namely that the atmosphere of our planet is warming and the oceans are acidifying, are “myths.” He has called advocates for a shift to clean energy “the forces of darkness,” intent upon “turning off the lights” on the rest of humanity.

Nor does Ebell’s hostility to knowledge end with climate science. He thinks EPA is too hard on pesticides, too. Ebell apparently endorses the fringe view that those compounds pose no significant health risks to humans and that they help wildlife, Rachel Carson and Silent Spring notwithstanding.

My colleague Angela Logomasini in @TownhallColumns: 50th Anniversary of Silent Spring An Unhappy Legacy Continues http://t.co/EDlTN3OO

— Myron Ebell (@myronebell) December 10, 2012

But Ebell is not the only anti-science radical who is even now plotting how to turn EPA into a cheerleader for more carbon dioxide and methane pollution and more pesticide poisoning of animals and man.

Amy Oliver Cooke, for example, is a former talk-show host who has said that her goal is “irritating the extreme eco-left.” Cooke works for the right-wing Independence Institute in Colorado, where she constantly cozies up to right-wing extremists in the Colorado General Assembly. Her Twitter feed is full of paens to fossil fuels, linking their use with patriotism, and attacks windmills as unaesthetic and useless decorations.

https://twitter.com/AmyOliverShow/status/785200624765808641?lang=en

She then goes even further in her slavish devotion to the energy sources that are methodically damaging the planet’s hospitability to life. Cooke labels herself an “energy feminist,” as if helping to lower humanity’s capacity to grow food, increase floods in some areas and drought in others, and decimate biodiversity is something that represents womanhood at its enlightened best.

Then there’s Harlan Watson, a long-time Republican Congressional staff member and favorite of Exxon-Mobil.

Watson, who holds a doctorate in physics and a masters degree in economics, apparently never let his considerable education get in the way of obstructing an effective national climate change agenda. In 2005, as a State Department official, he told representatives of the United Nations Framework Convention on Climate Change gathered in Montreal that the U.S. saw no reason to do anything about greenhouse gas emissions. That followed appearances at other international conferences aimed at building cooperation in the quest to reduce the warming pollution of carbon dioxide.

Watson last worked as an actual scientist in January 1980, according to his LinkedIn profile. At that time, the clear and present danger of climate change was not as evident as it is now, or even as it had become by the time he became deputy assistant secretary of interior in 1989. Watson has worked for a whole slew of Republicans, in fact, including F. James Sensenbrenner, Jr.

Sensenbrenner, the former Wisconsin representative, is known for his steadfast opposition to any international agreement to address climate change. A 2009 guide to Congressional staff quoted Watson as being in sync with Sensenbrenner’s stubborn refusal to address reality: it quoted Watson as saying that the Kyoto Agreement of 1998 was “a bad deal” for the United States. One must wonder whether Watson will broadcasting hostility toward the Paris Agreement to anyone in the new administration who will listen.

Next up is Christopher C. Horner, a lawyer with enough pretension to write not just one, but three, books that tell climate scientists they are all wrong. Those books, possibly facilitated with the help of the financial bounty showered on Horner by coal companies, have all been published by the conservative pillar Regnery. None acknowledge the cold – or should I say hot – reality of climate change: that humans are causing it, that it will severely impact our civilization, and that the extinction of all life on this planet is a possibility if we persist in our refusal to address it.

Horner seems to think it appropriate to use his education and license to practice law as tools to harass scientists, too. The eminent climatologist Michael Mann said in 2015 that Horner “has been instrumental in orchestrating the attacks on climate scientists over the past decade in the form of vexatious and frivolous [Freedom of Information Act] demands [and] efforts to force scientists to turn over all of their personal email.”

Just for good measure, Horner has also gone after Dr. James Hansen with a blizzard of unfounded slanders.

In 2009 he said on national television that Hansen “clearly abused his platform provided to him by the taxpayer, principally by the way he’s been exposed of manipulating and revising data with the strange coincidence of him always found on the side of exaggerating the warming.” Among the many other rhetorical broadsides he has aimed at honorable scientists, he has even accused Hansen of committing a crime: In 2011 he wrote that Hansen evaded his income tax obligations, a claim with no evidence at all to back it up.

Of course, not one word in any of those attacks on scientists is factually accurate.

Another extremist, anti-science “think tank” – the Heritage Foundation – is also represented among the Trumpsters that will soon take over EPA.

David W. Kreutzer wrote in a Sept. 2016 “backgrounder” co-authored with Kevin D. Dayaratna and Nicolas D. Loris that he thinks it’s time for the U.S. to “unleash” oil and gas production. That would seem to put him in tune with Mr. Trump’s oft-stated commitment to lessen or eliminate barriers to more fossil fuel activity in the United States.

Kreutzer is quite specific about how he would do that. He has said that Trump “should open all federal waters and federal lands that are not part of the national park system or congressionally designated areas to exploration and production for all of America’s natural resources.”

I added the emphasis in that statement because that one word – “all” – highlights the extremism in this opinion. Kreutzer seems to believe that even national monuments, marine preserves, and areas of the continental shelf that Presidents have withdrawn from energy exploration should be made available to the oil industry.

But that’s not all. Kreutzer also believes, if one takes his Sept. 2016 “backgrounder” seriously, that “Congress should require the Department of the Interior to conduct lease sales if a commercial interest exists.”

Again, I have added emphasis to the word “require.” If the Republican-dominated 115th Congress takes this advice, and Trump signs a bill that writes it into the U.S. code, we would see rigs along every part of the American coast, even in areas where it is aesthetically or biologically unsound to engage in drilling and even in areas where energy exploration would likely be catastrophically unsafe.

Oh, yes, there is at least one more example of Kreutzer’s over-the-top view about how to encourage even more fossil fuel production: He wants Washington to give states the authority to decide whether energy exploration can occur on federal lands within their borders. I’m sure that we’d see a whole lot of responsible consideration of environmental impacts in madly pro-fossil fuel states like Wyoming, North Dakota, and Alaska!

Just in case you have any doubt that Kreutzer is a climate science denier, note his comments in an interview with Steve Scully of C-SPAN last year. “Global warming is for real in that we’ve had global warming since the end of the last Ice Age,” Kreutzer said.

Now comes David Stevenson of the Caesar Rodney Institute. That’s an organization with clear and extensive financial ties to the fossil fuel-loving, climate science-denying, billionaire Koch brothers.

Stevenson has a bachelors degree in agricultural economics. This apparently qualifies him, at least in his own ideologue mind, to declare (as he did in Nov. 2015) that health-protective air quality regulations in Delaware are unnecessary and that the First State’s commitment to enforcing them makes it an “outlaw” agency.

George Sugiyama is another of Trump’s EPA minions.

A former chief counsel (and, therefore, close advisor) to Congress’ most infamous climate science denier, James M. Inhofe of Oklahoma, Sugiyama has also worked as a lobbyist for the National Mining Association.

Finally, there’s the college kid. Austin Lipari brings no apparent expertise in environmental law or policy, no obvious background in environmental health or toxicology, no known knowledge of climatology or any other scientific field that EPA considers as it applies the nation’s pollution laws.

Lipari does bring to the table membership in the Federalist Society, though. Apparently sympathy for a paranoid certainty that federal environmental laws are a threat to everyone’s freedom to get rich, a view trumpeted by that right-wing lawyer organization, is all it takes to be given a seat at the EPA destruction table.

I do not address here the awesome flaws of the man Trump has chosen to lead EPA – Oklahoma attorney general Scott Pruitt. Suffice to say, Pruitt shares the ignorant, selfish attitude aimed at further filling the coffers of oil and coal companies, their executives, and investors, and which will do great harm to the rest of the American people, that is exhibited by the band of radicals assigned to the agency transition team.

The American people did not vote for this hostile takeover of the environmental policy-setting arena. They did not choose climate science denial, hostility to the public health and economic benefits of clean air, clean water, safe pesticides, and non-toxic industrial sites. They did not say that the future of this planet’s biosphere, the prosperity of our civilization, and the relationships among nations should be handed over to a band of belligerent enemies of knowledge.

Unfortunately, and despite the fact that a man who received only 46 percent of the popular vote should seriously consider the views of those who oppose him, we appear headed for the most severe crisis in federal environmental policy since the era of environmental law began in the 1960s. What timing, too, as scientists have made clear that the world must force an enduring decline in fossil fuel emissions within just a few years if it is to avoid the truly horrific consequences that human-caused warming of the atmosphere and oceans will otherwise cause.

GAO report finds little impact on environmental rules from deadline cases

A federal watchdog agency has found that citizen suits that aim to force the Environmental Protection Agency to meet deadlines specified by federal environmental laws not have much impact on the substance of regulations.

The conclusion debunks an argument advanced by some right-wing politicians, including Republican members of the U.S. House of Representatives, that the agencies are improperly collaborating with environmental advocates to reach lawsuit settlements. For example, a 2013 report by the House Committee on the Judiciary concluded that citizen suit settlements are frequently used “to bind executive discretion under judicial authority, including to bind executive discretion over successive administrations.”

That House committee report went on to hypothesize at length about the impact of so-called “sue and settle” cases, surmising that they cause the agency to inappropriately adjust regulatory priorities.

“In sue-and-settle litigation, defendant regulatory agencies, such as the U.S. Environmental Protection Agency, typically have failed to meet mandatory statutory deadlines for new regulations or allegedly have unreasonably delayed discretionary action,” the House  committee report said. “Political and practical concerns in sue-and-settle cases frequently give rise to perverse agency incentives to cooperate with actual or threatened litigation and negotiate a consent decree or settlement agreement to resolve it. This is because, once a decree or agreement is in place, the defendant agency has a litigation-based excuse to expedite action that helps to diminish political costs, reorder agency funding priorities, or serve other pro-regulatory ends.”

The cases studied by the Government Accountability Office for an audit report released last month do not support this claim.

GAO reviewed 32 “major” rules that EPA finalized between May 31, 2008 and June 1, 2013. Nine of them were issued by the agency after settlements of Clean Air Act lawsuits brought to enforce statutory deadlines.

“[N]one of the settlements we reviewed included terms that required EPA to take an otherwise discretionary action or prescribed a specific substantive outcome of the final rule,” GAO wrote in the report.

The report  explained that citizen suit settlements do not affect the substance of rules because a federal regulation that dates back more than 20 years prevents the government from agreeing to settlements that create mandatory duties. That regulation had its genesis in a procedure for approving settlements of lawsuits against government agencies instituted by Reagan administration attorney general Edwin Meese in 1986.

“[I]n general, this policy restricts [the Department of Justice] from entering into a settlement if it commits EPA to take an otherwise discretionary action, such as including specific substantive content in a final rule unless an exception to this restriction is granted by the [d]eputy [a]ttorney [g]eneral or [a]ssociate [a]ttorney [g]eneral of the United States,” the report said.

That limitation does not apply to consent decrees, which are essentially negotiated court orders approved by a federal judge.

Citizen suits are authorized by all seven of the nation’s principal anti-pollution laws.

 

EPA to delay emission rules for new and existing power plants

The Obama administration announced earlier this month that it would delay release of final rules limiting carbon dioxide emissions from existing electric power plants and release proposed rules governing greenhouse gas pollution from new power plants several weeks later than originally planned.

Environmental Protection Agency assistant administrator Janet McCabe disclosed the modified schedule during a press conference on Jan. 7. She said that the regulatory issues common to both new and existing power plants dictated a simultaneous release of the respective Clean Power Plan regulations.

The agency also said it would develop a model emissions rule to be imposed on states that refuse to act on their own to regulate greenhouse gas emissions from the electricity generation sector.

Since news of the delay in release of the two Clean Power Plan rules broke, commentators have speculated that the administration is seeking to maximize the likelihood that both will survive an expected legal challenge from the industry and others. One law professor who specializes in the Clean Air Act suggested on the Legal Planet blog that EPA may be seeking to harmonize the standards applicable to new and existing coal-fired power plants, particularly those that aim to encourage use of carbon capture technology.

EPA will issue the final rule for existing coal-fired power plants and the proposed rule for new, modified, and reconstructed facilities this summer.

 

EPA effort to block Pebble Mine in Alaska hits judicial bump

A federal judge in Alaska has temporarily barred the U.S. Environmental Protection Agency from exercising a veto of a permit needed to build the largest open pit mine ever proposed in North America.

The decision by U.S. district judge Russel Holland came in a lawsuit that alleges EPA violated the Federal Advisory Committee Act by working with opponents of the copper mine project.

Holland did not release a written opinion. He instead issued a verbal temporary restraining order from the bench.

The lawsuit is part of an effort by Pebble Limited Partnership, the developer of the mine, to bypass EPA’s opposition to its project, which would take up more land in the rugged and fecund Bristol Bay region than the entirety of Manhattan and obliterate the world-class salmon fishery there.

EPA had announced last summer that it would use its authority under section 404(c) of the Clean Water Act to reject a permit that would allow PLP to deposit fill into the bay. The agency plans to finalize that decision early in 2015.

Wednesday’s order by Judge Holland does not indicate that the court agrees with the merits of PLP’s allegations against EPA.

Settlement to force EPA to propose coal ash disposal rules

The Obama administration committed this week to finalizing coal ash regulations by the end of the year.

The deadline is part of a proposed settlement of a lawsuit challenging the U.S. Environmental Protection Agency’s failure to meet statutory deadlines for the rules.

The settlement of the litigation initiated by ten environmental organizations and one native American tribe does not specify the content of the new coal ash regulations.

Coal ash is the second-largest hazardous waste stream, by volume, in the nation. It is produced when power plants incinerate coal as a means of generating electricity.

The average American coal-fired generation facility produces 125,000 tons of hazardous ash and nearly 200,000 tons of toxic sludge every year, according to the Union of Concerned Scientists.

A Dec. 2008 accident involving the breach of a dam in Tennessee caused the release of more than 1 billion gallons of coal ash slurry. The toxic mixture contained more arsenic, chromium, lead, and manganese than the total amount of those dangerous chemicals released into all American waterways by the whole electric power industry in 2007.

Another accident in Jan. 2009, this one in Alabama, involved about 10,000 gallons of toxic wastewater resulting from coal-fired electricity generation.

Despite a promise by former EPA administrator Lisa Jackson to finalize regulations that specify safe methods of handling coal ash, the agency has not done so. After proposing disposal regulations in June 2010, the agency has not acted to finalize them.

The nation’s principal hazardous waste law, the Resource Conservation and Recovery Act, requires EPA to regulate coal ash disposal. EPA may be able to regulate the substance on the basis of statutory classification as either a “special” waste or a “solid” waste.

In 2011, and again last year, the U.S. House of Representatives passed bills that would have forced EPA to regulate coal ash only as a solid (i.e., non-hazardous) waste. Those proposals have thus far failed to clear the U.S. Senate and attempts to attach the proposal as an amendment to other legislation have not proven successful.

The question of whether to regulate coal ash as a hazardous waste is controversial because about 40 percent of the substance is re-used to make a variety of industrial materials, including concrete. Such a designation would also significantly increase the costs associated with disposal because utilities would have to assure that holding ponds are lined and that leaks are prevented.

In Oct. 2013 a federal district judge rejected the Obama administration’s efforts to secure the dismissal of the lawsuit that is the focus of the settlement.

A huge coal ash slurry leak in Tennessee in 2008 has helped to provoke a debate about how the Environmental Protection Agency should regulate the byproduct of coal-fired electricity generation. Photo courtesy Tennessee Valley Authority.