On Monday, October 9, 2017, the EPA proposed to repeal the Clean Power Plan. Once it is published in the Federal Register tomorrow there will be a 60 day public comment period. [Update: read Pruitt’s delusional press release here.] As we have before for the proposed and final rule, Gasp will be commenting. It is not only regrettable, but also disgraceful that we are commenting again, this time against repealing one of the most critical plans to address and combat climate change.
Clearly the motto of this new administration is to repeal, repeal, repeal with no thought of replacing. Where Scott Pruitt sued the EPA 14 times prior to being in charge of the EPA, I cannot say I’m shocked at this announcement. But this is conscience-shocking.
Where September of this year was the most active month on record for Atlantic hurricanes and the 10 hottest years recorded have all occurred since 1998, climate change isn’t a distant threat, it’s here. The time to act has long passed and we certainly do not have time to roll back existing regulations.
EPA estimates the Clean Power Plan will prevent up to 3,600 premature deaths and 90,000 childhood asthma attacks every year once it is fully implemented.
The message today? Meh, your health, your children’s health, they don’t matter. This administration would rather coyly and ignorantly pretend they’re unsure whether carbon is a pollutant. Such an absurd position is indefensible, especially when it’s well-known who has been buttering Scott Pruitt’s bread for a very long time.
This is a slap in the face to current and future generations. If you agree, please sign our petition for climate action!
It’s been a few weeks since I updated everyone on executive and legislative actions. Sadly, this is not because there has been nothing to update; so this will be a long one! However, one reason this update is delayed is because I attended an inspiring conference two weeks ago that replenished my “hope budget” and gave me new energy to tackle the many and ever-growing attacks on clean air. Since I blogged last month, several new developments have cropped up and we have new updates:
- March 6, 2017: White House Announces Plan to “Close Out” Energy Star program: A spending blueprint would slash Energy Star and related programs, leaving $5 million “for the closeout or transfer of all the climate protection voluntary partnership programs.” According to our friends at ACEEE, Energy Star spend about $50 million through EPA and $7 million through the Department of Energy. According to the Obama administration, the Energy Star program saved consumers $34 billion in electricity costs and prevented more than 300 million metric tons of GHGs in one year while improving ambient air quality.
- March 8: The HONEST Act (H.R. 1430): This proposed bill is sponsored by Lamar Smith, R-TX. The bill works “[t]o prohibit the Environmental Protection Agency from proposing, finalizing, or disseminating regulations or assessments based upon science that is not transparent or reproducible.” This bill is an attempt to revise the EPA’s scientific review process that guides their rulemaking. The bill was introduced on March 8, 2017 and passed by recorded vote in the House (228 – 194) on March 29, 2017.
- March 13: Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch: President Trump signed this Executive Order, where the stated purpose is “intended to improve the efficiency, effectiveness, and accountability of the executive branch by directing the Director of the Office of Management and Budget (Director) to propose a plan to reorganize governmental functions and eliminate unnecessary agencies (as defined in section 551(1) of title 5, United States Code), components of agencies, and agency programs.”
- March 15: Republicans Joint Resolution on Climate Change: A group of 17 Republican members of Congress signed a resolution vowing to seek “economically viable” ways to combat global warming. It pledges to “study and address the causes and effects of measured changes to our global and regional climates” and seek ways to “balance human activities” that contribute.
- March 17: Ozone Standards Implementation Act of 2016 (H.R. 4775). This proposed bill, sponsored by Pete Olson, R-TX, was reintroduced and aims to update to the national ozone standards, with various provisions that would change the way the Environmental Protection Agency reviews standards for particulate matter, lead and other air pollutants. The same bill failed last year and we blogged about its potential disastrous effects on air quality and public health.
- March 21: President Trump is Not Considering a Carbon Tax: despite a meeting between Republican elder statesmen and Trump Administration officials, President Trump announced he is not considering a carbon tax.
- March 28: Presidential Executive Order on Promoting Energy Independence and Economic Growth: President Trump signed this Executive Order. The goal is to halt the United States’ government’s attempts to curb carbon dioxide emissions with the goal of encouraging American business. We borrowed the words of our friends at NAACP on this day to express our extreme disappointment with this negligent and potentially disastrous change in course for addressing the impacts of climate change.
- April 5: Congressional hearing on the RECLAIM Act of 2017 (H.R. 1731): At the hearing, ranking member Alan Lowenthal, D-CA, stated “[t]he idea behind the RECLAIM Act is to take part of the large unexpended balance in the [AML Fund] and devote it to projects where cleaning up mines leads to economic and community benefits. This is, quite frankly, a win-win.” There was testimony from the bill’s lead sponsor, Hal Rogers, R-KY, and three witnesses. The hearing itself was a major milestone for the RECLAIM Act.
FOLLOW UP ON ACTIONS PREVIOUSLY COVERED
- Congressional Review Act put into play by U.S. Congress: The CRA allows senators and representatives who disapprove of a regulation to enter a resolution eliminating it. The resolutions require the signature of the president. So far this year, the following rules protecting the environment and human health have been targeted under the CRA:
- The Department of Interior’s Stream Protection Rule: Update: On February 16, 2017, President Donald Trump signed the repeal of the Stream Protection Rule.
- Department of the Interior Methane Flaring Rule: The House voted on February 3, 2017 with no action so far from the Senate as of the date of this post. Update: on March 21, 2017, some Republican lawmakers came out against using the CRA to repeal this rule. Specifically, Sen. Lindsey Graham said he believed the rule could be subject to improvement, not just cancellation. “I think we can replace it with a better reg, rather than a CRA.”
- Drilling and Mining on Public Lands: On January 31, 2017, the House introduced a joint resolution that would repeal the rules that allow the National Park Service to manage private drilling and mining in 40 parks across the country.
Status of Bills in U.S. Congress covered in previous posts:
|HR 998||Jason Smith, R-MO||Establishes a commission to identify obsolete and unnecessarily burdensome regulations to be repealed. It also sets goals for the commission to reduce costs by 15 percent and to prioritize major rules that are more than 15 years old and rules that can be eliminated without diminishing effectiveness.||No action since the bill passed the House on 3/1/2017.|
|HR 1009||Paul Mitchell, R-MI||Requires independent agencies to submit rules to the Office of Management and Budget before they are published—essentially giving the president tight control of the rule-making process||No action since the bill passed the House on 3/1/2017.|
|HR 1004||Tim Walberg, R-MI||Would require agencies to publish more detail of forthcoming rules and regulations||No action since the bill passed the House on 3/2/2017.|
|HR 637||Gary Palmer, R-AL||Blocks the EPA’s ability to address climate change||No actions taken since the bill was introduced. You can read our analysis of the bill here.|
|HR 861||Matt Gaetz, R-FL||Would abolish the EPA effective December 31, 2018||No actions taken since the bill was introduced.|
|HR 958||Sam Johnson, R-TX||Would leave EPA with a budget of less than $1 billion. This bill would eliminate EPA climate change programs and would also close all of the EPA’s regional offices, halt new regulations on ground-level ozone pollution and require the agency to lease unused property||No actions taken since the bill was introduced.|
- February 21, 2017: Letter sent from automobile manufacturers to Scott Pruitt asking him to relax emissions requirements: The Alliance of Automobile Manufacturers sent a letter to Scott Pruitt (EPA Administrator) asking him to withdraw the Final Determination on Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation. Update: on March 15, 2017, President Trump announced plans to re-examine the CAFE (Corporate Average Fuel Economy) standards, taking a step back from Obama-era environmental regulations.
- OMB Proposed Budget Cuts to EPA and NOAA: The proposed budget cuts would reduce EPA’s staff by one fifth in the first year and eliminate dozens of programs. Specifically, EPA’s staff would be slashed from 15,000 to 12,000. The proposed budget would also cut EPA’s grants to states, including air and water programs, by 30 percent and eliminate 38 separate programs in their entirety. Media outlets also discovered a four page budget memo that would slash NOAA’s budget by 17 percent, delivering steep cuts to research funding and satellite programs. Any such cuts would have to be codified through the congressional appropriations process. Update: U.S. Congress is currently in recess for the Easter holiday but are expected to consider OMB’s budget proposal upon their return.
Make sure you’re signed up to receive our e-newsletters. We send updates and action alerts about issues that could threaten air quality, public health, and the environment. We will also always provide ways for you to act on any development, whether it’s positive or negative.
On December 29, 2016, the EPA withdrew a proposed rule to amend its nondiscrimination regulation regarding compliance information for Title VI of the Civil Rights Act.
Last year Gasp weighed in on the proposed changes and objected to the removal of deadlines in the proposed rule. We are happy to report that EPA considered Gasp’s and other groups’ comments opposing this change and has decided to withdraw the proposed amendments.
EPA is also moving enforcement of external compliance with Title VI from the Office of Civil Rights to EPA’s Office of General Counsel. This is a positive step and will bring pertinent expertise and ability to handle the backlog of complaints to the process. In turn, this change could bring much-needed relief to communities suffering a disproportionate burden of environmental harm.
However, “disparate impact” is still not sufficiently defined in EPA’s final plan. From Gasp’s comment on the EPA’s Office of Civil Rights Notice of Proposed Rulemaking, a disparate impact can be legally defined as follows:
The Supreme Court of the United States addressed the concept of disparate impact under Title VII of the Civil Rights Act by reasoning that disparate impact liability furthered the purpose and design of the statute. The Court noted that “Congress directed the thrust of [§ 703(a)(2)] to the consequences of employment practices, not simply the motivation.” Antidiscrimination laws should be construed to encompass disparate impact claims when their text refers to the consequences of actions and not just to the mindset of actors. A plaintiff bringing a disparate impact claim challenges practices that have a “disproportionately adverse effect on minorities.” The U.S. Supreme Court also reasoned that “[r]ecognition of disparate impact liability under the [Fair Housing Act] also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. ” In its Interim Guidance, the EPA acknowledges that frequently “discrimination results from policies or practices that are neutral on their face, but have the effect of discriminating. Facially-neutral policies or practices that result in discriminatory effects violate EPA’s Title VI regulations unless it is shown that they are justified and that there is no less discriminatory alternative.”
As seen above, current case law reflects a disparate impact in the employment or housing context. EPA should have given some direction and definition as to what it looks like when a community is disproportionately impacted by environmental pollution. Without this critical guidance, and as has happened in the past, mere adherence to environmental regulations could become the standard without considering disparate impacts on minority communities.
The very intent of ensuring other agencies who receive funds from EPA comply with Title VI is to ascertain that environmental racism is not occurring, and address it accordingly if it is. Accordingly, EPA would need to provide very clear guidelines on what constitutes a disparate impact.
On January 18, 2017, EPA addressed the above issue in part by issuing a Final Compliance Toolkit. Importantly, EPA removed the rebuttable presumption that compliance with an environmental law is a defense to a disparate impact claim. Specifically, EPA will examine whether site-specific information demonstrates the presence of adverse health effects from NAAQS pollutants, even though the area is designated attainment for all such pollutants and the facility recently obtained a construction and operating permit that ostensibly meets applicable requirements.
EPA’s assessment would seek to establish whether a localized adverse health impact, as indicated by the NAAQS, exists in the area at issue and has been (or will be) caused by the emissions from the power station even though the impact of the facility had previously been modeled to demonstrate that the source met.
The Toolkit also recognizes impacts other than health impacts in a community. Specifically, the non-health harms EPA will consider, include, among other things, economic (e.g., depressed property values), nuisance odors, traffic congestion, noise and vermin.
With respect to the non-health harms alleged (e.g., economic, traffic, noise), Title VI allows agencies to consider whether these effects are occurring and, if so, whether they are sufficiently harmful to support a violation finding.
Gasp plans to continue to be a part of the conversation for further improving EPA’s Title VI compliance program. Gasp also enthusiastically welcomes the positive changes in the final plan. Although it is always uncertain how a new administration will handle agency actions, Gasp looks forward to an improved program in 2017.
 See Griggs v. Duke Power Co., 401 U.S. 424 (1971)
 Id. at 432 (emphasis added).
 See Id. and Smith v. City of Jackson, 544 U.S. 228 (2005).
 Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
 Texas Dep’t of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __ (2015).
 Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (EPA, Feb. 5, 1998) at 2
On Monday, the Supreme Court of the United States denied certiorari in Michigan v. EPA. This means that SCOTUS rejected Michigan’s and 20 other states, including Alabama, appeal to block the mercury and air toxics standards (MATS). In denying review, SCOTUS upholds the D.C. Circuit’s decision to not vacate the rule.
Almost a year ago I wrote about the SCOTUS decision that resulted in EPA performing a cost analysis for the MATS rule. Because the rule was not invalidated or stayed, crucial protections for air quality and public health have remained in effect.
Image courtesy Moms Clean Air Force (source: http://www.momscleanairforce.org/how-mercury-poisoning-works)
Mercury is a potent neurotoxin that is emitted from coal-fired power plants. It is converted by organisms in nearby water sources like streams and rivers into methylmercury, which is absorbed by fish.
This is what leads to fish advisories like the ones published by the state of Alabama Department of Public Health and our friends at the Coosa Riverkeeper. It has even been linked to lower IQs and can have harmful health effects in children.
Thank you to everyone who told Attorney General Luther Strange to stop wasting taxpayer’s money opposing MATS! Today is a great day for air quality and public health!
Check out this helpful infographic on mercury pollution from Moms Clean Air Force.
This story has been updated with the webcast link and to correct the time of the event.
The. U.S. Environmental Protection Agency has announced that it is hosting a public meeting at Howard University School of Law in Washington, D.C., Tuesday, March 1 from 3–6 p.m. The meeting will be live-streamed via webcast and teleconference. The call-in number is 877-887-8949 and the conference ID is 58156799. Registration is optional.
Last month the EPA released what’s called a “Notice of Proposed Rulemaking” to modify how it addresses discrimination complaints. Title VI of the 1964 Civil Rights Act prohibits recipients of federal funding from discriminating on the basis of race, color, or national origin in programs and services. Examples of discrimination include any action or inaction that results in the segregation or denial of services, poor or decreased services, or inadequate participation opportunities.
In order to enforce Title VI, most federal agencies have adopted regulations that specifically prohibit discrimination whether it is intentional or not. In other words, if the programs and services inadvertently have a discriminatory effect, individuals can file complaints with that federal agency against the recipient of the federal funding.
There are currently four Title VI complaints from Alabama with the EPA, including two related to toxic air polluters in the Birmingham area. The EPA has a lackluster record when it comes to environmental justice complaints. To its credit, though, it is making a good-faith effort to change that. Comments are due March 14 (because the published deadline of March 12 falls on a Saturday).
Gasp is drafting detailed comments on the EPA’s proposed changes as well as the new Draft Case Resolution Manual. We’re in the process of recruiting other organizations and citizen groups to sign on. If your organization would like to be be a part of this effort, please contact us.
We have made it easy for individuals to take action in three easy steps: 1. Customize your letter. 2. Enter your contact information. 3. Click “Submit.” Take action now!
Si necesita asistencia en español, por favor contacte a la oficina de derechos civiles al (202) 564-7272.