EPA’s Ozone NAAQS Decision — Perhaps the Statute Itself Deserves Some of the Blame

Posted on December 28, 2020 by Seth Jaffe

Last week, EPA formalized its decision to leave the ozone NAAQS unchanged, at 70 ppb.  I don’t think that this decision is in the same category of egregiousness as EPA’s recent decision not to reduce the PM2.5 NAAQS.  After all, only one decision can be the single worst environmental policy of an entire administration.

I’m not that close to the science on the ozone NAAQS, but I have the sense that the ozone evidence is just more of the same in the past four years; it’s nothing like the seeming flood of evidence we’ve seen concerning the risks of PM2.5 at sub-NAAQS exposures.  We do need to remember that there was some substantial evidence in 2015, when EPA adopted the 70 ppb standard, that there are risks at concentrations below 70.

The real question is what we mean by an “adequate margin of safety.”  As I have previously noted, this is really a policy question, not a scientific question.  On the other hand, it’s not an infinitely malleable concept and it’s pretty clear that questions of background or the cost-effectiveness of the controls necessary to get to a level below 70 ppb are not relevant to whether a NAAQS set at an particular level in fact attains an “adequate margin of safety.”  The adequate margin of safety is what it is; whether we as a society want to spend the money necessary to ensure that there is an adequate margin of safety is a different question.

Conceptually, I understand why Congress made the choice that it did.  Let’s first answer the scientific question regarding what level is “safe.”  Then we can figure out how we get to that “safe” level and whether society is prepared to spend the money to do so.  Unfortunately, the structure of the Clean Air Act – not to mention the state of our politics in 2020 – doesn’t permit a rational discussion regarding the policy choices that flow from the “how safe is safe” decision.

And so we end up with what’s supposed to be a scientific question becoming infected with implicit policy questions, which perverts the answer to the scientific question.  From a legal point of view, it’s the conservative justices, who say that they care about what words Congress actually uses in writing legislation, who should be the quickest to reverse both Trump NAAQS decisions.  From a purely etymological point of view, it’s difficult to conclude that either the PM2.5 NAAQS or the ozone NAAQS currently protect the public health with an adequate margin of safety when there is substantial – even if not definitive – evidence that there is significant morbidity and mortality associated with exposures below the current NAAQS.

Do I expect the current conservative Supreme Court majority to do as I suggest?  No, but it would not be a bad litigation strategy for the public health advocates who will inevitably challenge both decisions to focus really sharply on just how much flexibility there can be in the definitions of the words in the phrase “adequate margin of safety”.

EPA Finalizes Decision to Retain the Existing PM2.5 NAAQS — Single Worst Environmental Decision of the Trump Administration?

Posted on December 10, 2020 by Seth Jaffe

On Tuesday, EPA finalized its decision to retain the existing PM2.5 NAAQS of 12 ug/m3, rejecting substantial scientific evidence that PM2.5 causes significant harm at concentrations below 12 ug/m3.  In fact, as noted in one of my prior posts on this subject, an article in the New England Journal of Medicine estimated that exposure to PM2.5 at concentrations below 12 ug/m3 causes more than 10,000 deaths annually.  That hardly seems consistent with the Clean Air Act, which requires that NAAQS be set at the level requisite to protect public health “with an adequate margin of safety.”

As the Trump administration winds down, I think we can start the discussion of the single worst environmental decision made in the last four years.  There’s a lot of competition, and I welcome reader submissions, but for my money, this may well be it.

I understand that there is discussion among the Biden transition team regarding how much to prioritize action to lower the PM2.5 NAAQS.  At some level, it’s a heavy lift, because a lot of work goes in to revising a NAAQS.  The administration may conclude that its climate efforts will address particulate matter as a co-benefit.  That would certainly be true, but the NAAQS are important.  To me, they are still the core of the CAA.  That should be particularly true as a heightened focus on environmental justice emphasizes the link between environmental issues and public health.  Many of those tens of thousands of excess deaths take place in EJ communities.

Retaining the existing PM2.5 NAAQS – worst environmental decision ever by the Trump administration.  And that’s saying a lot.

Who Gets To Decide What is a Major Source That Requires a Permit? That’s a Fine Question

Posted on December 7, 2020 by Seth Jaffe

The recent decision by the 8th Circuit that the Coyote Creek Mining Company did not require a major source permit under the Clean Air Act is both fascinating and important.  The question on the merits was whether CCMC had to include its fugitive emissions in determining its potential to emit.  Such emissions are normally excluded, but are included if they are part of a “coal processing plant.”

The Court concluded that the regulations are ambiguous and that EPA guidance did not resolve the issue.  It went on to review the decision by the North Dakota Department of Health, which concluded that the emissions should be excluded and CCMC did not require a permit.  The Court held that the NDDOH decision was entitled to deference, stating that:

"The process for NSPS enforcement would be significantly impaired if the state authority did not have the ability to make determinations based on application of given facts to the SIP and EPA framework."

There was a vigorous dissent by Judge Stras, who found it incomprehensible that a federal court would defer to a state agency interpretation of federal law.  In his pithy introduction, Judge Stras asserted that:

"Most Americans would be surprised to learn that state bureaucrats can play an even larger role than federal judges do in interpreting federal law."

I’m inclined to put a pox on the houses of both the majority and the dissent.  The problem with the majority is that it is too cavalier in asserting that, under the CAA’s cooperative federalism regime, states have the responsibility to implement the permitting regime.  That’s true, but it’s not obvious that the states get to make major interpretive decisions, such as what EPA’s own regulations actually mean.  I think that the majority also wrongly gives short shrift to the problem of inconsistent decisions being made by different delegated states.

On the other hand, Judge Stras relies on a mode of constitutional interpretation that is void of any basis in the Constitution or our political history.  He also seems far too quick to reach a constitutional question that should not even be at issue.  First, I think Judge Stras is correct that the regulation is not in fact ambiguous in these circumstances.  I would have found that, even if NHDOH was entitled to some deference, its decision that the emissions did not come from a coal processing plant was plainly wrong.

Second, the real solution, not discussed by the majority or the dissent, should have been that this case should not be a dispute between the authority of a federal court and a state agency, but a dispute between EPA and a state agency.  SCOTUS already ruled, in Alaska Dep’t of Envtl. Conservation v. EPA, that EPA has authority under the CAA to override state agency permitting decisions.  The plaintiffs should have asked EPA to override the NHDOH decision.  I don’t know why that did not happen here – perhaps it was because the plaintiffs assumed (probably correctly) that EPA would not rule against CCMC, since EPA had embarked on a mission to save coal.  Even if that were the case, however, the plaintiffs could then have appealed EPA’s decision to federal court and the case would have been presented in the proper way.

Finally, I’ll reiterate that this case really may be important.  Judge Stras is a Trump appointee and I wouldn’t be shocked if some of the recent appointments to SCOTUS were sympathetic to his arguments.  What makes the case really interesting is that those same judges are also those most sympathetic to the state side of cooperative federalism issues.

If this issue were to make it to SCOTUS, it would be fascinating to see if Justice Gorsuch rules for the coal company, because federalism gives decisional authority to the states, or for the plaintiffs, because the Constitution precludes state agencies from interpreting federal law.

As a lawyer I once dealt with was fond of saying, “that’s what makes a horse race!”

New Jersey Governor Signs Historic Environmental Justice Legislation

Posted on December 4, 2020 by Debbie Mans

New Jersey Governor Phil Murphy recently signed a historic environmental justice bill to protect overburdened communities from pollutants.  The law requires the New Jersey Department of Environmental Protection (NJDEP) to deny permits for certain new facilities “upon a finding that approval of the permit…would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit analysis…”.  NJDEP may apply conditions to a permit for the expansion of an existing facility or the renewal of an existing facility’s major source permit based on the same review and finding.

This law was well over a decade in the making, after having stalled for several years in the New Jersey Legislature. A combination of individual leadership in the legislature, early and strong support from Governor Murphy, a determined advocacy campaign lead by environmental justice advocates, and a general sense that it was well past time to address environmental racism led to its passage.

Covered facilities include (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons a day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material a day; (6) scrap metal facility; (7) landfill; or (8) medical waste incinerator (except when attendant to a hospital or university and processing self-generated waste).

If this facility is located in whole or in part in an “overburdened community” then it must prepare an environmental justice impact statement and hold a public hearing in the community.  There are requirements for enhanced public notice, including use of a local non-English newspaper.

An “overburdened community” is defined as any census block group in which (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency. 

The mapping of these areas can be found in Appendix A of “Furthering the Promise: A Guidance Document fo Advancing Environmental Justice Across State Government.”

The law does not become operative until adoption of rules and regulations to implement the provisions of the law.  There is no timeframe provided in the law for NJDEP to accomplish this and it will likely take more than a year due to several key items needing to be hammered out during the rulemaking process. 

This includes how a new facility could qualify as serving a “compelling public need,” allowing NJDEP to grant a permit that imposes conditions, rather than denying the permit.  Additionally, the law leaves to rulemaking or guidance the process and geographic scope of determining whether approval of the permit, together with other environmental or public health stressors affecting the community, would cause or contribute to adverse cumulative or public health stressors that are higher than those borne by other communities within the State, county or other geographic unit analysis.  This is an important issue, because comparing the Ironbound section of Newark to an adjacent neighborhood can result in a different outcome than comparing it to a neighborhood in a different county or region of New Jersey.

NJDEP has begun stakeholder conversations on the proposed rulemaking.  To find out more, please see the presentation from the October 22, 2020, stakeholder session and video recording of the session.  For more information on NJDEP’s Office of Environmental Justice and all their programming visit their website.

Debbie Mans is the former Deputy Commissioner at the New Jersey Department of Environmental Protection

One Op-Ed + One Book = ACOEL Blog

Posted on December 3, 2020 by Krista McIntyre

An opinion in this week’s Los Angeles Times, One of American’s great wildernesses is being destroyed, bit by bit, in a silent massacre (Ben Raines, November 29, 2020), (https://www.latimes.com/opinion/story/2020-11-29/mobile-river-biodiversity-extinctions-alabama) got me thinking about one of my re-reads this year, E.O. Wilson’s The Creation: An Appeal to Save Life on Earth (2006). The LA Times’ op-ed highlighted one of the richest ecosystems in the world, measured by number of species and types of habitat, the Mobile River Basin in Alabama. This wilderness is rich with more species of oak, crawfish, turtle, mussels, and freshwater fish than any other river delta system in the world. E.O Wilson explored and experienced this “stronghold of biodiversity” during his formative teenage years. His work on biodiversity, conservation, entomology, and all-things-Nature is prolific and iconic.

In The Creation: An Appeal to Save Life on Earth, Wilson petitions his counterpart, a Southern Baptist pastor, to join forces for the sake of the planet’s imperiled biodiversity. A secular humanist, a scientist, seeking counsel and help from a “literal interpreter of scripture.” An odd couple, for sure. E.O. Wilson selectively references religion and science, creation and evolution, to forge common purpose with his Pastor-friend. “Dear Pastor, what I fear most is a pervasive combination of religious and secular ideology of a kind that sees little or no harm in the destruction of the Creation.” With the sixth extinction underway, the “human hammer” -- not God’s will -- is to blame for the permanent losses Earth experiences, Wilson urges. He warns that to act as if  “extinction is natural” -- recurring over billions of years without harm to the biosphere -- misses the spiritual and scientific points. “However biodiversity arose, it was not put on this planet to be erased by one species.” Whether by creation or evolution, this “beautifully balanced” and functioning biosphere pre-dated humans. We are latecomers, he says.  And we are accelerants of the destruction.

E.O. Wilson’s experiences in Nature span the Earth. His examples of biodiversity in The Creation include the North American wolverine, the Venezuelan pitchfork ant, and cichlid fish in Africa’s Lake Victoria. But his scientific journey began in Alabama, in the Mobile River Basin, with a Boy Scout project studying fire ants. Now this unique American ecosystem is at risk. In his LA Times’ op-ed, Ben Raines describes the perilous impacts to the Mobile River Basin; impacts that track the factors outlined by E.O. Wilson in The Creation that contribute to global biodiversity loss: habitat loss, invasive species, pollution, population, and overharvesting. The rate of aquatic and terrestrial species extinction, Raines notes, is roughly double that seen anywhere else in the continental United States. And, according to the piece, Alabama ranks last in the nation in spending to protect the environment.

As pled in The Creation, what advice might E.O. Wilson offer Ben Raines to preserve and protect this special area of Alabama? Build alliances with unlikely allies. Meet on common ground. Teach scientific method. Nurture exploration and curiosity of Nature in children. Believe in Nature’s proven powers to heal, to support life, to endure before and after humans. Reach across disciplines and predispositions to summon stewardship of the biodiversity that nourishes human spiritual and scientific life. And don’t delay.