When Barack Obama took office, reform of U.S. chemical regulation appeared to be an area of some bipartisan agreement, especially when compared to climate change, where it was clear a contentious fight would loom on Capitol Hill. Prominent Members of Congress had called for reform of the outdated Toxic Substances Control Act (TSCA) of 1976, EPA Administrator Lisa Jackson soon laid out the Administration’s key principles for TSCA reform, and the largest chemical industry trade association acknowledged that TSCA needed to be “modernized” and “updated.”
Four years later, though, progress on TSCA reform has been frustratingly slow. The 2010 Republican victory in the House dashed hopes for quick action on the Hill, and the chemical industry is once again defending the status quo.
The stakes are enormous. Under TSCA, more than 90% of all chemicals in use have never been tested for their health and environmental effects. TSCA requires the EPA to demonstrate that chemicals pose “unreasonable risk” prior to restricting their manufacture or use, and it erects elaborate procedural hurdles before EPA can make that finding. Since TSCA was enacted, EPA has attempted to restrict only six chemicals under those provisions of the Act, and the last attempt was in 1989.
We are “flying blind” by allowing massive public exposure to untested chemicals. As a result of flaws in TSCA, we also lack solid comparative information about the toxicity of chemicals. For example, while many companies have stopped using Bisphenol-A (BPA) in baby products and food containers, we have little information about substitutes for BPA, and companies are not required to disclose what substitutes they are using. From hydraulic fracturing fluids to flame retardants in furniture to construction materials in our homes, we simply do not know the health and environmental effects of tens of thousands of chemicals to which we are exposed.
Full textBen Somberg posted here recently about the Republican platform and the environment. He noted that the platform uses a discredited estimate of regulatory costs, calls for making environmental regulations into guidance documents for industry, and proposes a moratorium on new regulations for the indefinite future.
Unfortunately, that’s only the tip of the iceberg. If you can think of an anti-environmental measure proposed by any Republican since Reagan took office, there’s a good chance you’ll find it tucked away somewhere in this platform. Since there are so many of them, it’s helpful to organize the proposals into four bins: (a) regulatory reform; (b) climate change and energy; (c) wildlife, water and property rights; and (d) enforcement.
Regulatory Reform. As Ben noted, the platform calls for a moratorium on all new regulations pending White House review of all existing ones. New regulations will also be difficult to enact, if and when the White House review ever concludes. The platform would require congressional approval for all new major rules. The overall goal is to shift the balance away from the environment: “Reining in the EPA” is critical, and we need to put increased weight on “economic development and private property rights,” as compared with health and safety. In short, “The bottom line on regulations is jobs,” not protecting workers from on-the-job hazards, not protecting consumers from defective products, not protecting people who breathe from polluted air, and so on.
Climate Change and Energy. The platform would prohibit EPA regulation of greenhouse gases, and pledges to resist any possible new cap-and-trade law. For the nuclear industry, the platform promises faster processing of pending applications for new plants and more proactive search for permanent waste disposal. The real emphasis is on encouraging the fossil fuel industry, with more drilling offshore, in ANWR, and on federal lands; approval of the Keystone pipeline; leaving regulation of fracking to the states, and encouraging coal production by ending “the EPA’s war on coal.” Mass transit is apparently getting too much funding for the GOP’s taste: highway funds should be used only for highways, rather than transit, and we need to reassess California’s “high-speed train to nowhere,” as it refers to a train linking Los Angeles and San Francisco. (Which one of those is "nowhere"?) In order to speed energy and other projects, the Platform says, we need to limit current requirements for environmental impact statements. If you were to just ask what measures would most benefit the fossil fuels sector, you could do a pretty good job of figuring out the platform’s proposals.
Full textBased on what the Romney-Ryan team has said so far on energy, I expected their energy plan today would be something like the National Energy Policy of 2001, delivered by Vice President Dick Cheney four months after George W. Bush’s inauguration. I thought that their energy plan would simply be a retread of old thinking, much like their education policies. But today’s plan goes to a whole new level.
The 2001 plan, famously developed behind closed doors, predicted a 30% growth in energy demand by 2020, increased dependence on foreign oil, and an increased gap between domestic production and demand, all contributing to the need for greater domestic energy production. After reading the Romney-Ryan plan, I have (and I do not believe that I am saying this) a little nostalgia for the Cheney Plan, for two reasons. First, even though the Cheney’s task force gave prominent seats to fossil fuel companies, most notably coal and oil, at his energy planning table, the Plan did recognize that the United States was realizing significant gains in energy efficiency; that renewable resources should play a role in our energy portfolio; that clean energy tax credits were useful; and, that clean energy R&D funding should be increased.
Second, I was completely wrong about Romney-Ryan going back a decade. I was off a century. The heart of the Romney-Ryan energy plan puts the country back to the turn of the 19th into the 20th centuries, not to the turn into the 21st century. In the late 19th and early 20th centuries, energy industries were regulated, if at all, at the local and then at the state levels. There was a technological reason for local regulation – energy industries were located intrastate. Interstate and national markets were just developing and federal regulation had the direct effect of creating national energy markets and supporting the fossil fuels traded in them. Federal regulation created and sustained the energy markets that the states could not. Federal regulation promoted fossil fuels, facilitated a national infrastructure of oil and natural gas pipelines and electricity transmission lines, and eventually the entire nuclear power industry.
Full textYesterday afternoon, the D.C. Circuit Court of Appeals issued a long-awaited decision on the validity of EPA’s “Cross-State” rule governing interstate transport of pollution.
The EPA has been trying for more than two decades to come up with a solution to the vexing interstate transport problem, but every attempt has failed. The court has now vacated EPA’s most recent (and most ambitious) attempt to protect the residents of “downwind” states (primarily in New England and the mid-Atlantic) from two pollutants (ozone and fine particulate matter) that can cause a number of adverse health effects, ranging from minor eye irritation to premature mortality. EPA’s rule was estimated to prevent 13,000 to 34,000 premature deaths every year.
Worse, the court interpreted the Clean Air Act in a way that ensures that EPA may never be able to implement it with the analytical tools currently at its disposal. If the Obama Administration is serious about protecting children, the elderly, and other vulnerable Americans, it must ask the entire membership of the D.C. Circuit to overturn the panel’s decision. Failing that, it must appeal the decision to the Supreme Court of the United States.
As states along the East Coast struggled over the years to fulfill their obligation under the Clean Air Act to write state implementation plans (SIPs) capable of achieving the national ambient air quality standards (NAAQS), they discovered that the sources of the pollutants were located in upwind states and were therefore not subject to any legal requirements promulgated by the downwind states. The complexity of the problem was magnified by the fact that the relationships between upwind state emissions and downwind state ambient air quality were not well understood.
Full textEarlier this month, the Senate Finance Committee reported out a bill that would extend production tax credits for the wind industry, in addition to providing other tax benefits for the construction of new energy-efficient homes, energy efficient appliances, and biofuels. These are all positive efforts that serve as investments in the necessary transition to a clean energy future. Yet meanwhile, the Presidential campaign rhetoric on this issue, and on energy policy more broadly, is as predictable as it is disappointing.
Governor Romney came out in “firm opposition” to extending production tax credits to the wind industry even though Republican Senators, such as Chuck Grassley, co-sponsored the tax legislation that passed the Senate committee with a 19-5 bipartisan vote. It is equally unsurprising that conservative groups such as the Club for Growth applaud Romney for his "courage" to oppose tax credits and to stand up to claims about green job creation.
On the Obama side of the aisle, not only does the White House support the extension of tax credits, it has announced plans to fast track solar and wind projects on public lands. It is estimated that renewable electricity form these projects will serve roughly 1.5 million homes as well as create jobs. These efforts receive the applause from the usual suspects in the environmental and clean energy communities. Thus, on the campaign trail, clean energy is promoted by the Democratic candidate and opposed by the Republican.
Full textAround the country, a disproportionate number of facilities and operations that discharge sewage, process hazardous waste, and emit toxic air pollution are located in areas with high poverty rates or large minority populations. Environmental regulation that has reduced overall pollution has often failed to do so equitably, leaving (or in some cases even increasing) environmental risks in certain neighborhoods. These communities suffer from environmental harms in far greater numbers than the general population as dirty air, polluted water, and contaminated soils have been relocated to their neighborhoods, or left in operation as facilities in other areas are cleaned up or closed. Sadly, for a long time, environmental justice for the marginalized members of our society has been a low priority for many activists and regulators alike.
Environmental injustices can also be the result of market-based environmental protection schemes that prioritize economic incentives while ignoring hard-to-quantify externalities. Allowing the market to dictate how and where pollution is abated – pollution credit and trading systems – can save compliance costs and speed up overall environmental improvement. But without proper protections in place, that approach can also delay pollution reduction progress in poor and minority communities, or even increase environmental harms to those same communities by redistributing them there.
In the Chesapeake Bay, state and federal regulators are embracing one such scheme—nutrient or water quality trading—to address the decades long failure to protect the waters of the Bay from a calamitous decline. After the 2010 Total Maximum Daily Load (TMDL) set strict limits on nutrient and sediment pollution in the Bay and its tributaries, Bay states began exploring nutrient trading in earnest. In theory, trading allows regulated sources of water pollution to meet strict effluent standards not by reducing their own discharges but by paying other sources—in this case, under-regulated agricultural operations, mostly—to reduce their pollution at a lower cost.
Full texta(broad) perspective
Today’s post is the sixth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these treaties. Previous posts are here.
International Treaty on Plant Genetic Resources for Food and Agriculture
Adopted by the Food and Agriculture Organization on November 3, 2001
Entered into Force on June 29, 2004
Number of Parties: 127
Signed by the United States on November 3, 2002
Sent to the Senate on July 7, 2008
Reported favorably by the Senate Foreign Relations Committee on December 14, 2010
As the world’s population continues to grow, global production of food must grow with it. The United Nations Food and Agriculture Organization (FAO) predicts that farmers will have to increase production by at least 70 percent by 2050 to satisfy the demand for food due to the world’s growing population, urbanization, and rising incomes. To meet the food demands of a future global population of 9 billion people, significant advances in plant genetics are needed.
Full textCross-posted from Legal Planet.
On Tuesday, the D.C. Circuit decided American Petroleum Institute (API) v. EPA, an interesting case dealing with nitrogen oxide (NO2) levels. The standard is supposed to include a margin of safety.Under the Clean Air Act, EPA sets National Ambient Air Quality Standards (NAAQS) for airborne substances that endanger human health or welfare. EPA set such a standard for NO2 in 1971 and finally got around to revising the standard in 2010.
The innovation in the new NO2 standard is that it’s a one-hour standard covering peak exposures, and all air monitors in an area must hit the standard. The previous standard was an annual average, so local, temporary peaks could be quite a bit higher. The evidence showed that the earlier average standard did not protect people against respiratory problems from spikes in nitric oxides, particularly if they were near freeways.
Two industry groups sued to overturn the new standard, but it was unanimously upheld by a panel containing two very conservative judges and one more liberal one. The court was distinctly unimpressed by the industry claims. In response to a claim that EPA violated its own rules because it relied on a study that wasn’t peer-reviewed, the court wrote, “Perhaps the API should have had its brief peer-reviewed.” The court faulted the industry brief for deleting crucial language when quoting an EPA document, among other errors.
Full textIn a CPRBlog post in May 2011, I discussed the lawsuits filed on behalf of children against all 50 states and several federal agencies alleging that these governmental entities have violated the common law public trust doctrine by failing to limit greenhouse gas emissions that contribute to climate change. The suits were filed by Our Children’s Trust, an Oregon-based nonprofit. The claims sought judicial declaration that states have a fiduciary duty to future generations with regard to an “atmospheric trust” and that states and the federal government must take immediate action to protect and preserve that trust. At the time, I opined that although these claims were novel and would likely have little, if any, immediate effect on state climate policy, they relied on what has proved to be a flexible and powerful common law doctrine in at least some states. As a result, I concluded there was likely to be significant variation in results between the states on creating opportunities for a new forum for consideration of climate change harms and potential legal responses. Now, just over a year later, some lower courts have issued decisions in the cases and, as expected, the results vary widely from state to state.
The public trust doctrine is a concept dating back to Roman law which holds that there are certain natural resources that are forever subject to government ownership and must be held in trust for the use and benefit of the public. In the United States, plaintiffs have used the public trust doctrine successfully to prevent states and other governmental entities from conveying public trust resources such as submerged lands or municipal harbors into private ownership, to create public beach access, and to otherwise ensure public access to water-based resources. Until the 1970s, however, the doctrine had little to do with environmental protection and instead was used almost exclusively to prevent the privatization of water-based resources or to preserve public access to fishing, boating, or commerce. Since that time, however, with the help of an influential law review article by Professor Joseph Sax, some states, like California, Louisiana, and Hawaii, have applied the common law doctrine to protect rivers, lakes, and other water-based resources as well as land-based resources such as birds and other wildlife. As I have discussed in my scholarly work on the public trust doctrine, other states have bolstered their common law public trust doctrine by relying on state constitutional provisions and state statutes mandating governmental protection of environmental resources. In this way, these states use the common law, state constitutions, and state statutes together to protect what I call generally “public trust principles.” Despite these developments, however, there are still states that have a much more limited version of the common law public trust doctrine, with courts in those states limiting the doctrine’s reach to ensuring continuing public ownership of water-based resources rather than using it for environmental protection purposes.
Full textAround the nation, a huge number of facilities produce, store, handle, and process a toxic mix of hazardous chemicals every day. According to EPA data, 483 of those facilities put 100,000 people or more at risk of a chemical disaster. Worse, because facility siting decisions have historically been, and continue to be, deaf to impacts on poor and minority communities, those facilities tend to be disproportionately located in communities that bear the brunt of society’s environmental ills.
In March, EPA’s National Environmental Justice Advisory Council (NEJAC) formally recommended that the agency expand its use of a little-known, and even lesser-used, part of the Clean Air Act called the General Duty Clause (GDC), which was passed in the wake of the Bhopal disaster. The GDC states that “owners and operators of stationary sources producing, processing, handling, or storing [chemicals listed under 40 C.F.R Part 68 or any other extremely hazardous substances] have a general duty to: