By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The Trump administration continues to erode US regulation in many areas – especially of the environment, with the Environmental Protection Agency (EPA) and other agencies advancing policies to benefit the fossil fuels industry.
The latest depredation: changing a calculation method so as to understate the health risks of air pollution, and thereby allow states to decide how (or whether) they will regulate coal-fired power plans. As The New York Times reported yesterday in E.P.A. Plans to Get Thousands of Deaths Off the Books by Changing Its Math:
The Environmental Protection Agency plans to change the way it calculates the health risks of air pollution, a shift that would make it easier to roll back a key climate change rule because it would result in far fewer predicted deaths from pollution, according to five people with knowledge of the agency’s plans.
The E.P.A. had originally forecast that eliminating the Obama-era rule, the Clean Power Plan, and replacing it with a new measure would have resulted in an additional 1,400 premature deaths per year. The new analytical model would significantly reduce that number and would most likely be used by the Trump administration to defend further rollbacks of air pollution rules if it is formally adopted.
The proposed shift is the latest example of the Trump administration downgrading the estimates of environmental harm from pollution in regulations. In this case, the proposed methodology would assume there is little or no health benefit to making the air any cleaner than what the law requires. Many experts said that approach was not scientifically sound and that, in the real world, there are no safe levels of the fine particulate pollution associated with the burning of fossil fuels.
The Trump EPA’s final version of its Affordable Clean Energy Rule is slated to be made public in June.
The Environmental Working Group (EWG) says in Trump EPA’s Fake Math: Clean Air Doesn’t Save Lives, So Burn More Coal that experts say the new methodology is unsound and hadn’t been reviewed by independent scientists:
It ignores decades of research by EPA scientists, instead relying on “unfounded medical assumptions” that there is no benefit to air that is any cleaner than is required by law – even when those standards are not strictly based on protecting health but are the product of political and economic compromise.
“Using fake math to hide the death toll from dirty air at the behest of the coal industry is sadly consistent with the Trump administration’s complete disregard for public health,” said Olga Naidenko, Ph.D., EWG’s senior science advisor for children’s environmental Health. “This sleight of hand means that more adults may die early and more children may become victims of asthma.”
The Trump EPA’s goal is clear: it wants to rescind its predecessor’s Clean Power Plan, which would have capped emissions from coal power plants. The EWG notes:
EPA’s own career scientists previously estimated that the Clean Power Plan would prevent up to 4,500 premature deaths and 140,000 to 150,000 asthma attacks in children, and lead to climate and health benefits worth up to $93 billion in 2030.
The Trump EPA’s replacement, the Affordable Clean Energy Rule, will leave it up to states to decide how or whether they will regulate pollution from coal-fired power plants. It is expected to reduce carbon dioxide emissions from power plants by a paltry 1.5 percent by 2030, far below the 30 percent target under the earlier proposal.
States Step in to Regulate the Environment
The new EPA rule will undoubtedly be subject to legal challenge once it’s issued, and it’s impossible to predict what the ultimate legal resolution will be.
Does this mean the outlook for environmental regulation is as bleak as it seems, at least until a new president is inaugurated (assuming Trump doesn’t secure a second term)?
The Washington Post published a comprehensive piece on 20th May, States aren’t waiting for the Trump administration on environmental protections, detailing several areas in which state regulators have stepped in to advance state-level environmental protection measures:
More than a dozen states are moving to strengthen environmental protections to combat a range of issues from climate change to water pollution, opening a widening rift between stringent state policies and the Trump administration’s deregulatory agenda.
In recent months, Hawaii, New York and California have moved to ban a widely used agricultural pesticide linked to neurological problems in children, even as the administration has resisted such restrictions. Michigan and New Jersey are pushing to restrict a ubiquitous class of chemical compounds that have turned up in drinking water, saying they can no longer wait for the Environmental Protection Agency to take action.
Colorado and New Mexico have adopted new policies targeting greenhouse gas emissions from fossil fuel drilling and limiting where these operations can take place. And more than a dozen states have adopted policies that would force automakers to produce more fuel-efficient cars than required by federal standards.
The Post account decried the uncertainty and compliance burdens the ramping up of various state measures imposes on US businesses – which now must comply with a patchwork of state regulations, rather than uniform federal standards.
The Post account described several intitiatives. I’ll mention one here: requiring more fuel-efficient cars. Fourteen states, including California, and the District of Columbia, are bucking administration policy on this issue.
Breaking New Legal Ground
Not mentioned in the Post account, but another area in which states are pioneering new approaches to reducing – and paying the costs arising from climate change – is climate liability litigation. New York last year filed a federal lawsuit against five major oil companies for their contributions to climate change. That suit was dismissed, but is under appeal (see this account in Climate Liability News, NYC Files Appeal, Challenges Dismissal of Climate Liability Suit for further details).
Hawaii is now mulling its legal options. As Climate Liability News reported in Hawaii Leaders Mull Potential of Climate Liability Cases:
Lawmakers and experts met in Honolulu earlier this month to discuss current trends in climate litigation and how Hawaii could leverage its own laws to recoup damages brought by climate change.
“Oil companies like BP should be held responsible for the damage done to our environment by their activities,” Sen. Mazie Hirono said at the climate conference, explaining why she co-drafted a friend-of-the-court brief in support of climate liability lawsuits filed by the cities of Oakland and San Francisco.
Such legal action could put fossil fuel companies on the hook for damages. The state of Rhode Island, cities of New York, Baltimore, Oakland and San Francisco and Boulder as well as counties in California and Colorado are among those that have filed lawsuits against the fossil fuel industry, a wave of claims that has spread from exclusively coastal regions to inland jurisdictions.
Hawaiian law makes it a particularly congenial jurisdiction for bringing such lawsuits, according to Climate Liability News:
Hawaii’s laws concerning indigenous rights provide additional grounds for the state to bring potential climate lawsuits, the panelists said. The state follows U.S. common law and recognizes indigenous rights. Courts as well as state and county agencies are constitutionally mandated to protect “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians.”
In addition, the state has been at the forefront of initiatives to address climate change:
Hawaii was the first state to implement legislation that aligns with the Paris Agreement and is one of several states with environmental rights provisions in their constitutions. The state’s legislators want Hawaii’s proactive climate policy––which includes committing the state to 100 percent renewable energy by 2045 and a proposal for the state to become the first to tax carbon emissions––to set an example for climate change mitigation worldwide.
The Bottom Line
We’re a long way away from the state of play when a Republican President, Richard Nixon, created the EPA via a reorganisation plan (see my post, Happy Earth Day 2019). The Trump administration’s environmental record is atrocious. In the climate change area, it’s highly unlikely that Trump will step up and endorse a Green New Deal anytime soon – although, to be sure, with Trump, it’s never quite clear just what he might decide to do next. Recall that old New York Lotto ad: You never know…
Leaving that extreme possibility aside, states and municipalities are at the moment the key battleground. Policymakers are not powerless, and can advance initiatives to protect their citizens in the face of federal inaction on crucial environmental issues.
If these initiatives are well-crafted, they can provide models for a future time – which I hope is not too far distant – when more environmentally-minded policymakers fill federal positions again.