We welcome expressions, support, and collaboration from like-minded organizations

 

 

ENVIRONMENT POLICIES, ANALYSIS, AND RESOURCES

The Environment Domain tracks and reports on policies that deal with the use of natural resources, climate change, energy emissions, pollution, and the protection of endangered species. This domain tracks policies emanating from the White House, the Environmental Protection Agency, the Energy Department, and the Interior Department.

Latest Environment Posts

 

USDA Lets Biotech Companies Regulate Themselves

Brief #85—Environment
By Jacob Morton
In response to President Trump’s June 2019 executive order for the USDA, the Food and Drug Administration, and the Environmental Protection Agency took steps to streamline the process for approving biotech crops, including those produced by gene editing, the USDA has proposed the new SECURE Rule

read more

Hawaii Wildlife Fund defends Clean “ Wai” Water

Brief #84—Environment
By Shannon Quinn Elliott
Hawaiian culture is sacred. Hawaiians give much respect to the history and folklore of their state. Forest, streams, oceans and humans are all interconnected creating “Ohana” one family, protecting invaluable resources. Hawaiian mythology tells a tale of Kane and Kanaloa; Gods of Water, who when they desired to drink would dig their hands into the earth calling on the fresh water to quench their thirst.

read more

EPA Response to COVID-19; Open license to Pollute?

Brief #81—Environment
By Shannon Q Elliot
On March 26, 2020, The Environmental Protection Agency (EPA) issued a memorandum in response to the COVID-19 pandemic. “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” authored by Susan Parker Bodine, (Assistant Administrator for Enforcement and Compliance Assurance) is a 7-page temporary policy, in which the EPA addresses industry concerns over non-compliance issues as a result of COVID-19. Staff shortages, travel restrictions and other imposed regulations are affecting facility operations, reporting obligations and ability to meet required deadlines. 

read more

Does the Covid-19 Pandemic Justify Environmental Rollbacks?

Brief #80—Environment
By Jacob Morton
As a planet, our environmental policies and the current coronavirus pandemic are undeniably linked. The way in which we manage our natural resources, such as cutting down forests, can have unintended consequences, such as exposing humans to wild animals (like bats) that, as a result, are forced to find new habitat and come in closer contact with humans and inevitably transfer disease.

read more

Atlantic Coast Pipeline Controversy awaits Adjudication

Brief #—79
By Shannon Q Elliot
In 2017, The U.S. Federal Regulatory Committee gave the final approval for construction of the Atlantic Coast Pipeline (ACP). A project spearheaded by corporate giants, Dominion and Duke Energy Companies, the pipeline is intended to serve as a vessel for natural gas to reach consumers throughout Virginia, West Virginia and North Carolina. The approval process included reviewing permits issued by The US National Forest Service (USFS), The National Park Service (NPS) and several other federal agencies.

read more
USDA Lets Biotech Companies Regulate Themselves

USDA Lets Biotech Companies Regulate Themselves

Policy:

In response to President Trump’s June 2019 executive order for the USDA, the Food and Drug Administration, and the Environmental Protection Agency took steps to streamline the process for approving biotech crops, including those produced by gene editing, the USDA has proposed the new SECURE Rule. This new rule will reduce USDA oversight and allow biotech companies to decide if their genetically modified plants/products need to be tested and regulated by the USDA. So, instead of the USDA testing and regulating all genetically modified/engineered plants before they are released for use, the biotech companies get to decide whether, or not, to recommend a product for review and regulation by the USDA.

If a biotech company decides a new product does not pose any risk as a future pest to other crops, then it may release that plant/product for use by the industry without even notifying the USDA. As a guide for which crops require government regulation and which crops do not, the new SECURE Rule essentially states that a new genetically engineered (GE) organism is exempt from government regulation if it:

  1. a) was developed using material from an organism that is not a current plant pest
  2. b) was engineered using “conventional breeding methods,” or
  3. c) was modified by introduction of a “gene, allele, or structural variant” that came from a plant of the same species or of a species that is known to be compatible through “conventional breeding methods.”

“Conventional breeding methods” refers to methods of genetic engineering via wide genetic crosses, embryo rescue, or protoplast fusion. In short, these methods are performed, essentially, by introducing desired genetic factors into plant populations where they may be adopted by the plant population through the natural mutation processes plant populations undergo when exposed to certain factors and environments. If all goes well, some plants from the next generation will have naturally mutated to exhibit the desired traits. These methods are considered to produce low plant-pest risk organisms (meaning low risk of becoming a future major pest). Any genetically engineered plants that do not meet these criteria are still subject to USDA regulation…as long as the biotech companies that produce them are honest about their methods and/or choose to report the new product.

Analysis:

The new SECURE Rule has faced a lot of criticism from a broad range of interest groups. According to a statement from the Center for Science in the Public Interest (CSPI), “Despite a unified position from environmental groups, consumer organizations, biotech crop developers, and food industry stakeholders imploring USDA to eliminate a provision allowing crop developers to self-determine whether their products are regulated, the Trump administration refused to require developers to even notify the agency of products they believe are exempt under the new regulations.” The representatives of these interest groups, in a letter delivered to the USDA on March 6, 2020, asked that the agency at least include a process by which biotech companies must report any newly produced organisms. They wrote, “Independent of whether the final rule retains the self-determination provision, we strongly encourage the Agency to include in the final rule a process by which a developer is required to notify the Agency of a GE plant that the developer has determined meets one of the exemptions in proposed 340.1(b) or (c) prior to placement on the market.” The statement further explains that “This mandatory notification process would provide a developer with an opportunity to affirm that a GE plant meets an exemption, and it also would provide additional information to the marketplace and consumers.[…] By providing this additional information to consumers regarding what products are available in the market, the Agency is providing an opportunity to grow consumer confidence in the U.S. food supply.” Despite the USDA’s justification and EPA Administrator Andrew Wheeler’s praise of the new rule for creating a faster path for the release of biotechnology, this coalition of interest group representatives ended their statement saying, “Many of our organizations hope for modification to the original proposal, we believe that USDA’s final rule should provide opportunities for transparency that can be achieved without limiting innovation or these new products’ potential benefits for society and the environment.”

Many fear that the USDA’s new rule is dangerous because it eliminates too many checks and balances on the biotech industry and its potential effects on our food supply. Aviva Glaser, director of agriculture policy at the National Wildlife Federation says, “There is a need for adequate safeguards and effective regulatory oversight to ensure that there aren’t unintended consequences to biodiversity from these new technologies, but unfortunately, USDA’s rule falls short of achieving this.” Gregory Jaffe, biotechnology project director for the CSPI, explains that “While some genetically engineered products are safe and beneficial, the federal government needs a regulatory system that tracks product development and ensures safety before products are marketed.” For the CSPI and of the new rule, he says, “We support science- and risk-based federal oversight of genetically engineered plants to ensure they are safe to humans and the environment before they are released for cultivation or restoration, but today’s final regulation does not achieve that result.”

Many, including Center for Food Safety senior attorney Sylvia Wu, feel it’s a good idea to update the legislation for regulating GMO products, that hasn’t been revised since 1987, but view the new SECURE Rule as simply another tactic by the Trump administration to “push through yet another industry-friendly policy that could have ramifications for the country’s food supply.” Instead of fixing the deficiencies and improving the efficiency and strength of the regulatory legislation, the Trump administration is simply cutting back regulation and oversight all together. Wu states that “the revised regulations dramatically scale back USDA’s regulatory authority, leaving most GMOs unregulated, [and] the new regulations finalized by USDA, paradoxically named the SECURE rule, are anything but secure.”

As Thomas Gremillion, director of food policy for the Consumer Federation of America puts it, the bottom line is this: “Consumers have a right to know how gene editing is being used to produce the foods they buy in the market. This rule will undermine public confidence in the food supply and ultimately set back beneficial uses of this technology.” 

Resistance Resources:

Center for Science in the Public Interest

  • Founded in 1971, the Center for Science in the Public Interest is perhaps the oldest independent, science-based consumer advocacy organization with an impressive record of accomplishments and a clear and ambitious agenda for improving the food system to support healthy eating. https://cspinet.org/

National Wildlife Federation

  • America’s largest and most trusted conservation organization; works across the country to unite Americans from all walks of life in giving wildlife a voice. NWF has been on the front lines for wildlife since 1936, fighting for the conservation values that are woven into the fabric of our nation’s collective heritage. https://www.nwf.org/

Environmental Defense Fund

  • One of the world’s largest environmental organizations and a 501(c)(3) non-profit. Preserving the natural systems on which all life depends. https://www.edf.org/

Consumer Federation of America

  • The Consumer Federation of America (CFA) is an association of non-profit consumer organizations that was established in 1968 to advance the consumer interest through research, advocacy, and education. Today, more than 250 of these groups participate in the federation and govern it through their representatives on the organization’s Board of Directors. CFA is a research, advocacy, education, and service organization. https://consumerfed.org/

Sources Cited:

Hawaii Wildlife Fund defends Clean “ Wai” Water

Hawaii Wildlife Fund defends Clean “ Wai” Water

Summary
Hawaiian culture is sacred. Hawaiians give much respect to the history and folklore of their state. Forest, streams, oceans and humans are all interconnected creating “Ohana” one family, protecting invaluable resources. Hawaiian mythology tells a tale of Kane and Kanaloa; Gods of Water, who when they desired to drink would dig their hands into the earth calling on the fresh water to quench their thirst. Circa 2020, if one were to dig into the earth in Maui County, that drink of water would include seepage from the Lahaina Wastewater Reclamation Facility.

Conservation groups are on a mission in Hawaii. Protecting the vitality of the ocean is a major focus. In 2012, Hawaii Wildlife Fund (HWF), along with The Surfrider Foundation, Sierra Club- Maui Group and West Maui Preservation Association, initiated a civil action against Maui County, alleging that The Lahaina Wastewater Reclamation Facility was injecting treated sewage into groundwater that inevitably reaches the Pacific Ocean. HWF states that the injection wells are a direct point source of pollution and therefore in violation of The Clean Water Act (CWA). The facility would need to apply for a National Pollutant Discharge Elimination System Permit (NPEDS) from the Environmental Protection Agency (EPA) in order to be in compliance with the CWA. As a result of failure to comply, pollution has created severe biological disruptions to coral reefs, marine life, strained social goods and economic services.

The Clean Water Act, is the nation’s primary federal law governing water pollution. The main purpose of the statute is to restore chemical, biological and physical integrity of the nation’s navigable waters. The act establishes a structure to discharge pollutants, and activates the EPA to set standards for municipal and commercial industries. The Lahaina Wastewater Reclamation Facility is authorized by the EPA to operate four class V injection wells, to dispose of effluents. Producing 3-5 million gallons of liquid waste from the county’s 40,000 residents, the injection wells are essentially pipelines that travel far beneath the earth’s surface,entombing waste into porous rock. The concern lies with the seepage from the injection wells which invade groundwater, and ultimately marry into the Pacific Ocean.

County of Maui v. Hawaii Wildlife Fund 2020, has endured a lengthy litigation process. The United States District Court for the District of Hawaii 2014 ruling was in favor of the plaintiffs. The Court agreed that the Lahaina Wastewater Facility needed to apply for an NPDES permit, and referred to the injection wells as a “direct” point source.  Maui County challenged that decision to the Ninth Circuit Court of Appeals. Maui County argued that the injection wells were a source of indirect pollution and named  groundwater, as the culprit which indirectly infused de minimis amounts of liquid sewage into navigable waters.  The Circuit Court upheld the lower court’s ruling. Maui County, unsatisfied with the verdict petitioned The United States Supreme Court, who granted the petition in February 2019.

Analysis

The SCOTUS issued its 6-3 decision on April 23, 2020. The issue; Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. In interpreting the language of the CWA, which defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source, the court held that “a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge.”

The outcome is a victory for environmentalists who work tirelessly to defend navigable waters against an administration who is hellbent on gutting clean water. The Trump Administration repealed the Clean Water Rule of 2015, which protected drinking water for 117 million Americans. They also finalized The Navigable Waters Protections Rule this past April. The vague policy undermines the CWA, cutting protections for national waters. Environmentalists along with some states are ready to sue, on grounds that the new policy is dangerously weak.

The good news? If and when litigation battles commence over the intention of The Clean Water Act, courts will be able to refer to County of Maui v. Hawaii Wildlife Fund 2020. This ruling offers communities reprieve that industries will be held legally responsible if they are negligent in dumping pollutants into navigable bodies of water.

Learn More

Resistance Resources

  • Blue Coast . (2020). Retrieved from bluecoast.org: http://www.bluecoast.org/kanaloa.html
  • EarthJustice . (2020). Retrieved from earthjustice.org: https://earthjustice.org/blog/2019-october/what-the-trump-administration-is-doing-to-your-water
  • Hawaii Wild Life Fund. (2020). Retrieved from wildhawaaii.org: https://www.wildhawaii.org/
  • Surf RIder Foundation . (2020). Retrieved from surfrider.org : https://www.surfrider.org/initiatives/clean-water
  • West Maui Preservation Association . (2020). Retrieved from .savewestmaui.com: https://www.staradvertiser.com/2020/04/23/breaking-news/in-maui-sewage-case-u-s-supreme-court-sees-broad-reach-of-clean-water-act/
The dangers of America’s appetite for meat just multiplied

The dangers of America’s appetite for meat just multiplied

POLICY
Approximately 25% of all U.S. meat packing plants have been closed. The reason: COVID-19; over 4000 meat plant workers in 115 meatpacking plants have tested positive, more than 5000 have been hospitalized, and 20 have died. Meat processing is a highly consolidated industry: four companies—Cargill, JBS, National Beef, and Tyson—control more than 80% of the nation’s beef supply. These COVID outbreaks among plant workers are concentrated clusters. In a single Tyson plant in Indiana, 890 employees tested positive.

Similar numbers are reflected in processing plants located in Minnesota, Wisconsin, Iowa, and South Dakota. Some plants are voluntarily shutting down, while others have been ordered to cease operations, resulting in a significant supply chain disruption. As of April 27, Beef production was down nearly 25% year-over-year and pork production was down 15%. Tyson Foods, one of America’s biggest meat producers, warned in a full-page New York Times ad that the “food supply chain is breaking.”

According to the CDC, meat processing plants are deemed “critical infrastructure” and as such, asymptomatic workers at plants may be permitted to continue work even with the threat of exposure to COVID-19. They must wear protective gear. Deploying this same “critical infrastructure” rationale, President Donald Trump has invoked the Defense Production Act to mandate meatpacking plants stay open during the coronavirus epidemic. This is recognition that a meat supply shortage in the U.S. has political consequences.

A rung up on the supply chain, animal feedlots, have no place to ship their pigs, cattle, and chickens. Producers have started to “euthanize” animals in large numbers. For example, the state of Iowa processes about 50,000 pigs a day, and a significant number are slated to be “depopulated.”

There is anecdotal evidence that workers who do speak out about compromised safety are being threatened with job loss. Some managers have asked line workers to continue to work through mild symptoms. One Smithfield processing employee remarked, “If you’re not in a casket, they want you there.”

ANALYSIS
The Administration’s executive order underscores the political importance of meat in this country. There are economic ripples that reach major feed crops, rural bank loans, local property taxes, and even K-through-12 education funding. Glynn Tonsor, a professor at Kansas State University’s department of agricultural economics, thinks the problem will start to improve by June as meat processing plants find ways to operate in a COVID-19 world. On the other hand, longer-term employee illness could significantly slow down production for over a year, according to David Anderson, professor and extension economist in the Department of Agricultural Economics at Texas A&M University.

In the face of worker safety though, the Executive Order lacks teeth. Sick workers cannot be forced to show up to the plant. They cannot easily be replaced either; these are skilled jobs. The added federal COVID benefits on top of state unemployment insurance may also incentivize more workers to stay out longer. There is the harsh realities of the illness and threat of illness. Kim Cordova, president for workers at a JBS Meatpacking Plant in Greeley, Colorado, told The Washington Post that they are “treating workers like fungible widgets instead of human beings.”

The unions seem to be taking the middle ground by emphasizing the importance of America’s food supply as well as worker on-the-job safety, citing guidelines from the CDC and the Occupational Safety and Health Administration. Yet the food supply is shrinking and some meats may increase in price more quickly than others. The production levels for pigs, for example, can be adjusted more efficiently than cattle because they get to production weight faster.

What is not given enough attention is the fact that the industry predominately employs immigrant minorities and people of color, the very same groups who are disproportionately dying of the virus.

Resistance Resources:

Photo by Charlie Solorzano

EPA Response to COVID-19; Open license to Pollute?

EPA Response to COVID-19; Open license to Pollute?

On March 26, 2020, The Environmental Protection Agency (EPA) issued a memorandum in response to the COVID-19 pandemic. “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” authored by Susan Parker Bodine, (Assistant Administrator for Enforcement and Compliance Assurance) is a 7-page temporary policy, in which the EPA addresses industry concerns over non-compliance issues as a result of COVID-19. Staff shortages, travel restrictions and other imposed regulations are affecting facility operations, reporting obligations and ability to meet required deadlines.

The policy is a reactive answer, broadly addressing industry concerns. The EPA is assuming that all industries will operate under the covenant of “good faith” meticulously documenting any inability to meet  required deadlines. inclusive of chemical plants, oil refineries and steel manufacturers. Industries will be allowed to exceed emission allowance if they can cite COVID-19 as the reason for non-compliance. Under The Clean Air Act, penalties for exceeding emission allowance can reach $35,000.00 per day; per violation up to $295,000.00. The new policy allows industries to dodge monetary penalties, using COVID-19 as a crutch. Without a proper system of checks and balances, undocumented pollution will contribute to further health complications, stress on the medical community and deplete precious resources.

This policy is retroactive to March 13, 2020.

Analysis

American Petroleum Institute (API), was the first to request relief from President Trump. The oil industry’s largest trade group, API submitted a letter to Andrew Wheeler detailing how the COVID-19 crisis has caused infrastructure and compliance roadblocks. The API lists challenges such as administrative constraints while working from home, monitoring requirements, delay of infrastructure projects, and relief from leak detection and repair. The result was a broadly written set of guidelines issued by the EPA, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program”.

EPA Administrator Andrew Wheeler and the Trump Administration defend the decision to suspend enforcement of environmental laws. On March 13, 2020 Wheeler was quoted by the press defending the memorandum “The EPA is committed to protecting human health and the environment but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.” The EPA is adamant that they are working diligently to provide flexibility to organizations while protecting public and environmental health during these unprecedented times. The indirect conflict that lies within, is The EPA agrees to relieve industries of monetary penalties, while environment and public health suffers as a result of potential toxins being released into air, water and land supply

Openly opposing the policy is Michael Brune, Executive Director of the Sierra Club. Brune is adamant that “Donald Trump and Andrew Wheeler are exploiting this pandemic to make toxic pollution legal.” Concurring with Brune is Former Obama-era EPA chief Gina McCarthy, now President of the Natural Resources Defense Council, calling this policy “an open license to pollute.” She believes that It’s unconscionable to use a public health crisis to justify lack of legal responsibility. However, it’s public knowledge that the Trump Administration is heavily in favor of supporting environmental rollbacks.

In a New York Times article, December 21, 2019, “95 Environmental Rules Being Rolled back by the Trump Administration” air pollution, drilling, infrastructure, animals, toxic substances and water pollution rules were being rolled back for being burdensome to large corporations. A report by The New York University Law School’s State Energy and Environmental Impact Center, reports that supported rollbacks could lead to poorer air quality, increase greenhouse emissions and lead to thousands of extra deaths in the coming years. Still, President Trump has made eliminating regulations a top priority. Uninterested or in denial, he has made a point of ignoring advisement on the quality of the environment, and the linkage it has to population health.

As a Federal Agency, the EPA’s mission is to protect human and environmental health. They create standards and laws that reduce environmental risks and ensure Americans have access to clean water, air and land. Considering the wrath of the current pandemic, the EPA should be hyper vigilant of regulated industries, confirming that all protocols are followed, in an attempt to prevent further complications of COVID-19.  As a result of suspending sanctions, monitoring obligations, and laboratory analysis deadlines, there will not be record of the violations, or collateral damage caused as a result of this decree.

Resistance Resources

  • Center for CoalField Justice . (n.d.). Retrieved from https://www.coalfieldjustice.org/: https://www.coalfieldjustice.org/
  • Clean Water Action . (n.d.). Retrieved from https://www.cleanwateraction.org/ : https://www.cleanwateraction.org/
  • Climate Justice Alliance . (n.d.). Retrieved from https://climatejusticealliance.org/: https://climatejusticealliance.org/
  • Coming Clean . (n.d.). Retrieved from https://comingcleaninc.org/: https://comingcleaninc.org/
  • Environmental Justice For All. (n.d.). Retrieved from https://ej4all.org: https://ej4all.org/
  • Food and Water Action . (n.d.).  Retrieved from https://www.foodandwateraction.org/ https://www.foodandwateraction.org/
  • Indigenous Environmental Network. (n.d.). Retrieved from https://www.ienearth.org/: https://www.ienearth.org/
  • National Resources Defense Counsel. (n.d.). Retrieved from https://www.nrdc.org/: https://www.nrdc.org/
  • Public CItizen . (n.d.). Retrieved from https://www.citizen.org/ : https://www.citizen.org/
  • Water You Fighting For. (n.d.). Retrieved from http://www.wateryoufightingfor.com/: http://www.wateryoufightingfor.com/

References

  • Environmental Protection Agency of The United States. (2020). Retrieved from EPA.gov: EPA.gov
  • Friedman, L. (2020, March 26). E.P.A., Citing Coronavirus, Drastically Relaxes Rules for Pollute. Retrieved from NYTimes.com : https://www.nytimes.com/2020/03/26/climate/epa-coronavirus-pollution-rules.html
  • Lavelle, M., McKenna, P., Hasemyer, D., & Kusnetz, N. (2020, March 27). Trump’s Move to Suspend Enforcement of Environmental Laws is a Lifeline to the Oil Industry. Retrieved from insideclimatenews.com : https://insideclimatenews.org/news/27032020/coronavirus-covid-19-epa-api-environmental-enforcement
  • NADJA POPOVICH, L. A.-R.-L. (2019, Decemeber 21). 95 Environmental Rules Being. Retrieved from NYTimes.Com: https://www.nytimes.com/interactive/2019/climate/trump-environment-rollbacks.html
  • Rushton, L., Kirkland, J., & Vore, B. A. (2020, March 24). COVID-19 and Environmental Compliance – Business As Usual, Or Is It? Retrieved from NationalLawReview.com : https://www.natlawreview.com/article/covid-19-and-environmental-compliance-business-usual-or-it

 

EPA Launches Another Blow to Climate Change Policy with Its Roll-back of Obama Era Auto Emission Standards

EPA Launches Another Blow to Climate Change Policy with Its Roll-back of Obama Era Auto Emission Standards

Policy
In 2012, the Obama administration passed a climate policy requiring automobile manufacturers to reduce their vehicles’ CO2 emissions by 5% each year through 2026. This would have meant that all new passenger vehicles and light trucks would have a fuel economy of around 54 mpg by the 2025 model year. In late March, just as we are beginning to see skies clear up as a result of stay-at-home orders during the covid-19 pandemic, the Trump administration rolled back this Obama policy by finalizing a new rule requiring the auto industry to reduce carbon emissions by only 1.5% annually through 2026. The White House has received quite a bit of criticism for this rollback, even from the EPA’s own scientific advisory board, who feel that “the weakened standards will lead to dirtier air and cost consumers at the gas pump long-term” . Even after the first proposal for this policy change, advisors had stated that “there are significant weaknesses in the scientific analysis”  to justify the rationale and policy change. Nonetheless, the White House claims that this move will save consumers money by making new vehicles more affordable and will thus increase safety on the road by encouraging consumers to buy newer and thus safer cars. On top of that, the administration claims this is simply a response to the demand for more SUVs and pickup trucks that tend to be less fuel efficient.

Analysis
Back in 2018, the EPA had stated that the standards set by the Obama administration were “not appropriate and should be revised” (Uria). And now, with the finalizing of the new Trump policy, EPA Administrator Andrew Wheeler calls it a “correction” to an Obama-era climate policy that was too costly for the auto industry to comply with. Wheeler states that “Our final rule … strikes the right regulatory balance that protects our environment, and sets reasonable targets for the auto industry” . Elaine L. Chao, US Secretary of Transportation (and wife of Republican Senate Majority Leader Mitch McConnel) said of the new policy, “By making newer, safer and cleaner vehicles more accessible for American families, more lives will be saved and more jobs will be created” (Uria). President of the American Energy Alliance, Thomas Pyle has also praised the new policy, saying that the standards set by the Obama administration were “impossible to achieve without dramatically altering the automobile market or making the cost of vehicles out of reach for most American families. This new … rule will make cars more affordable for consumers at a time when they need it most” .

Despite the praise from within the White House for the new policy, most analysts are not convinced. Regarding claims that the new rule will make consumers more safe by making new cars more affordable, US Senator and the democratic leader on the Senate Environment and Public Works Committee, Tom Carper argues that the EPA’s “own analysis finds there would be even more premature deaths from increased air pollution” . Compared to models based off of the Obama-era standards, the new policy “will lead to nearly a billion additional metric tons of climate warming CO2 in the atmosphere” . Senator Carper also raises timely health concerns in regards to air quality, stating that “This rule will lead to dirtier air at a time when our country is working around the clock to respond to a respiratory pandemic whose effects may be exacerbated by air pollution” .

Not only will this policy create more air pollution, but critics are also skeptical that it will actually save the American people money. Environmental law professor at the University of California, Los Angeles, Ann Carlson says that “More fuel efficient cars are cheaper for consumers over the long run” . With the implementation of the new policy, “consumers will end up losing money by buying about 80 billion more gallons of gas” as a result of less fuel efficient vehicles. Even new projections from Consumer Report show that “each vehicle sold under the Trump rule will cost its owner on average $2,100 more, even if gas prices continue to fall,” according to Consumer Report’s vice president of advocacy, David Friedman . Not only that, the government’s own analysis “shows that American car companies could experience a loss of thousands of jobs by making dirtier cars that would be locked out of many overseas markets” .

The justifications for the emissions standards roll-back don’t seem to be particularly accurate or well supported, and as Richard Revesz of the Institute for Policy Integrity and dean emeritus at New York University School of Law puts it, “The rollback of the vehicle emissions standards is based on analysis that is shoddy even by the shockingly unprofessional standards of Trump-era deregulation” . Antonio Bento, professor of public policy and economics at the University of Southern California criticizes the analytical models for the new policy, saying “There’s nothing I can say to potentially defend how some of these assumptions got put in what is already a very messy model” . Regardless of the criticism, the new rule has been finalized. However, states like California and Colorado and environmental and health activist groups are expected to fight the legislation in court, and the debate of states’ rights to set their own auto emissions standards could likely reach the Supreme Court. The Editorial Board at the Los Angeles Times puts it well when they write, “The role of the federal government is not to blindly follow the market off a cliff; in the era of climate change, the government must set policies and adopt regulations that push industries to develop products that are better, safer and healthier for the planet”.

Resistance Resources

The Institute for Policy Integrity

  • A non-partisan think tank dedicated to improving the quality of governmental decision making. Producing original scholarly research in the fields of economics, law, and regulatory policy. Advocating for reform before courts, legislatures, and executive agencies. https://policyintegrity.org/

Safe Climate Campaign

  • A Washington-based consumer advocacy group, the Safe Climate Campaign fights global warming by working for big, specific measures to reduce greenhouse gas emissions. http://safeclimatecampaign.org/

California Air Resources Board

  • Protecting the public from the harmful effects of air pollution and developing programs and actions to fight climate change. From requirements for clean cars and fuels to adopting innovative solutions to reduce greenhouse gas emissions, California has pioneered a range of effective approaches that have set the standard for effective air and climate programs for the nation, and the world. https://ww2.arb.ca.gov/homepage

Learn More (Sources):

 

Does the Covid-19 Pandemic Justify Environmental Rollbacks?

Does the Covid-19 Pandemic Justify Environmental Rollbacks?

Policy

As a planet, our environmental policies and the current coronavirus pandemic are undeniably linked. The way in which we manage our natural resources, such as cutting down forests, can have unintended consequences, such as exposing humans to wild animals (like bats) that, as a result, are forced to find new habitat and come in closer contact with humans and inevitably transfer disease. Likewise, just as our environmental policies can affect the chances of a future pandemic, a current pandemic can affect the status and role of existing environmental policies. Currently during this Coronavirus pandemic, we are seeing its effects on a number of existing environmental policies. Change and adaptation during times of emergency is important, but it is crucial for us to understand which changes are necessary and beneficial to communities, and which changes are simply politically motivated and beneficial only to special interest groups.

For instance, as a result of the Coronavirus pandemic, some states like Maine, Massachusetts, New Hampshire, and California have temporarily banned the use of reusable bags and temporarily overridden their respective bans on single-use plastic bags. Governor Charlie Baker of Massachusetts recently ordered a temporary repeal of local bans on single-use plastic bags and has banned the use of reusable bags in grocery stores. Governor Baker stated that given the evidence of Covid-19’s ability to reside on surfaces for extended periods of time, he felt “the risk was simply not worth it” (Crawford). This kind of adaptation might make sense in the midst of an impending crisis. However, it is important that we don’t allow war time efforts to erase the progress we have made up to this point to pass legislation that will continue to benefit the planet and our communities beyond the times of crisis. Lobbyists for the Plastics Industry Association are jumping at this opportunity to permanently roll back legislation banning single-use plastics. A letter written by the Plastics Industry Association and sent to Alex Azar, Secretary of Health and Human Services, claims that “single-use plastics are the safest choice” (Crawford), and that the department should “speak out against bans on these products as a public safety risk” (Crawford).

Legislative overrides and rollbacks aren’t the only issue. Newly proposed ‘pandemic-time’ legislation ought to be analyzed with a critical eye as well. Amid the Coronavirus pandemic, some state officials are seizing the opportunity to protect fossil fuel companies by elevating their status and classification as “critical Infrastructure.” Since the months-long protests at Standing Rock in 2016 to resist the Dakota Access Pipeline (a project of the company Energy Transfer Partners), a number of states, including Oklahoma, Louisiana, Iowa, Ohio, Wyoming, and Minnesota, have attempted to introduce “critical infrastructure” bills aimed at elevating the status and protections for fossil fuel companies. In Iowa, where this kind of legislation was passed into law back in 2018, it is now a criminal act to “protest on anything that could be conceivably understood as part of the fossil fuel industry’s ‘critical infrastructure’” (Gullapalli). Furthermore, any act “that intends a substantial and widespread “interruption or impairment of a fundamental service” (Biggers) of gas, oil, petroleum or refined petroleum products is a felony, punishable by up to 25 years in prison” (Gullapalli). A similar law passed in Louisiana in 2018 states that “Disrupting operations [of any critical infrastructure] is a crime punishable by up to 20 years in prison” (Gullapalli). The panic and distraction the Coronavirus pandemic has created now in 2020, seems to be the opportunity some other state officials have been looking for to pass this kind of legislation into law in their own states.

Three state governors, Andy Beshear (D) of Kentucky, Kirsti Noem (R) of South Dakota, and Jim Justice (R) of West Virginia have all signed legislation that impose criminal penalties for demonstrating protests against fossil fuel companies during the pandemic. Governor Beshear has categorized natural gas and petroleum pipelines as “critical infrastructure,” and thus “tampering with, impeding, or inhibiting operations of a key infrastructure asset,” is to be considered a “criminal mischief in the first degree” (Axelrod). Governor Noem of South Dakota has also signed into law a classification of oil and gas pipelines and other utility equipment as “critical infrastructure,” capitalizing on the opportunity of the pandemic to provide these companies with extra protections and importance under the law. Governor Justice in West Virginia has deemed oil, gas, and pipeline facilities as “critical infrastructure” as well, supporting efforts to provide added protections and status to these companies in the name of supposed necessity during this pandemic.

Analysis

As far as banning reusable grocery bags and lifting bans on single-use plastics, many agree that these are not normal times and being extra careful may be a wise decision at the current moment. However, evidence supporting the claim that single-use plastic bags are a safer option than cloth reusable bags, is not very convincing. According to Amanda Mae Simanek, a professor of epidemiology at the University of Wisconsin, a study in the New England Journal of Medicine found that the Covid-19 virus “could remain viable or potentially infectious on copper for four hours, on cardboard for 24 hours, on stainless steel for two days and on plastic for up to three days” (Crawford). The researchers for this study did not test cloth, but “in general viruses are less likely to be transmitted by soft surfaces than hard ones” (Crawford). Simanek also reminds us that when it comes to the ability of reusable bags to transmit the Covid-19 virus, “there haven’t been any scientific studies and CDC has definitely not made any blanket recommendations about not using reusable bags” (Crawford). Simanek and others, like Ivy Schlegel, a senior research specialist at the environmental nonprofit Greenpeace, feel that for now, to “err on the side of caution” is a reasonable practice, but according to Schlegel, when it comes to the intense response by the plastics industry during this pandemic, “what we’re seeing is an attempt to roll back legislation and sort of go back in time” (Crawford). Schlegel, and her co-authors of a recent research brief, have gone so far as to accuse the plastics industry of “exploit[ing] the COVID-19 emergency to create fear about reusable bags” (Crawford).

In regards to state protections of fossil fuel companies and the passing of “critical infrastructure” legislation, many see this as nothing more than a strategically timed effort to pass controversial laws that benefit fossil fuel interests while media attention is focused on covering the pandemic and not fossil fuel protests. According to Connor Gibson, a researcher at Greenpeace, “While we are all paying attention to COVID-19 and the congressional stimulus packages, state legislatures are quietly passing fossil-fuel-backed anti-protest laws” (Axelrod). Gibson claims that “These laws do nothing new to protect communities. Instead they seek to crack down on the sort of nonviolent civil disobedience that has shaped much of our nation’s greatest political and social victories” (Axelrod). Suspicions of this timing strategy are only further fueled when one sees a similar correlation with the timing of legislation proposals coming from the EPA and Federal Government to halt pollution monitoring requirements for the fossil fuel industry, reduce emissions standards for the automotive industry, and waive fines for fossil fuel, agriculture, and construction companies that harm local bird populations.

Resistance Resources

Environmental Integrity Project

  • 501 (c)(3) nonpartisan, nonprofit watchdog organization that advocates for effective enforcement of environmental laws. Comprised of former EPA enforcement attorneys, public interest lawyers, analysts, investigators, and community organizers

Natural Resources Defense Council

  • Working to ensure the rights of all people to the air, the water and the wild, and to prevent special interests from undermining public interests.

Greenpeace

  • Exposing global environmental problems, and promoting solutions for future generations.

 

Learn More

Atlantic Coast Pipeline Controversy awaits Adjudication

Atlantic Coast Pipeline Controversy awaits Adjudication

Policy

In 2017, The U.S. Federal Regulatory Committee gave the final approval for construction of the Atlantic Coast Pipeline (ACP). A project spearheaded by corporate giants, Dominion and Duke Energy Companies, the pipeline is intended to serve as a vessel for natural gas to reach consumers throughout Virginia, West Virginia and North Carolina. The approval process included reviewing permits issued by The US National Forest Service (USFS), The National Park Service (NPS) and several other federal agencies.

The USFS and The NPS are separate federal agencies. The USFS is managed by The Department of Agriculture, while the NPS is managed by the Department of the Interior. The biggest difference between the two is mission and purpose. The 154 forests managed by the USFS abide by a “multiple use” concept; which assesses recreation, fishing, and harvesting of timber. Their goal is to promote the interconnectedness between people and nature, while considering risk and reward to both. The NPS is considered federally protected; emphasizing strict preservation, which protects natural and cultural resources.  The nation’s 62 national parks are to remain unaffected by infrastructure, encouraging multiple generations to enjoy their exceptional beauty.

The agencies were tasked with analyzing their lands for impacts that would effect ecological systems, air, water, and all resources indigenous to the region. Upon evaluation, permits were issued by the USFS allowing the pipeline to travel through The George Washington National Forest, The Monongahela National Forest, and travel underneath a section of The Appalachian Trail (AT). Conflict arose when Cowpasture River Preservation Association questioned the USFS’s authority to grant a right of way through the Appalachian Trail, which is classified as a National Park.

Cowpasture River Preservation Association is a citizen formed, non-profit organization located in Virginia. Formed in 1972, the nonprofit group takes aim at infrastructure projects that threaten the pristine character of the Cowpasture River. In 2018, they filed a complaint with the Fourth Circuit Court alleging that the USFS abused their authority when they granted a right of way through the AT. They relied on The Mineral Leasing Act of 1920; a statute allowing rights-of-way for pipelines, however expressly prohibits the U.S. government from authorizing pipelines across federal lands.

The court found in favor of CPRA; ruling that the USFS did indeed violate the Mineral Act of 1920. Only an act of Congress can grant the authority to the National Park Service to issue a permit of right-of-way. The ruling also concluded that the permitting processes were “mysterious, arbitrary and capricious.” After the decision, the USFS petitioned the U.S. Supreme Court on ground writ of certiorari, arguing a definitive answer was of critical national importance.

Analysis

US Forest Service v. Cowpasture River Preservation Association made its way to The U.S. Supreme Court, February 24, 2020 with oral arguments lasting approximately 1 hour. The centralized question for the Supreme Court to decide is “Whether the Forest Service has authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.”

Anthony Yang, Assistant to the Solicitor General, and Paul Clement, of Kirkland and Ellis on behalf of USFS (petitioners); argue that the footpath of the AT, is not a unit of the National Park System. The footpath is not a product of nature, rather a product of those traversing the lands. The signage and shelters along the 2192-mile trail spanning from Maine to Georgia, are not true to the environment. In his definition, Yang contends that those directives along the footpath are within USFS authority as is the granting of the right-of-way for energy development.

Michael Kellogg, founding partner of Kellogg, Hansen, Todd, Figel & Frederick PLLC for the respondents argued that The Mineral Leasing Act is crystal clear that a pipeline cannot be authorized through federal lands. The exception being for by an act of congress, and he concluded by stating “Whether it’s a historic building, whether it’s a monument, whether it’s a parkway, or whether it’s a trail, if it’s administered, it counts as an area of land.”

The question over authority is to be determined by The U.S. Supreme Court, however, it would be impossible to ignore the political undertones of this case. CPRA was adamant In their original complaint to the Fourth Circuit Court, that there was not sufficient evidence of market demand, nor market justification for this type of infrastructure project. Lastly, they cited emails from the Trump Administration which pressured the USFS to stick to Dominion and Duke’s project timeline.

Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects (2017), an executive order signed into action by the President highly benefited the $6.5 million-dollar infrastructure project. Reaping the benefits of the proposed pipeline are Dominion, Duke, along with company shareholders. The two companies are revered as corporate political powerhouses in Virginia. Their linkage to the Trump Administration stems from former board member and now, United States Attorney General; William Barr. The energy companies have been known to align their political views with both parties, however have shifted their alliance toward the Trump Administration.

*US Forest Service v. Cowpasture River Preservation Association is pending adjudication before the U.S. Supreme Court.

Resistance Resources

  • Atlantic Coast Pipeline . (2020). Retrieved from www.atlanticcoastpipeline.com: https://atlanticcoastpipeline.com/
  • Ballotpedia . (2020). Retrieved from https://ballotpedia.org: https://ballotpedia.org/United_States_Forest_Service_v._Cowpasture_River_Preservation_Association
  • Cowpsture River Preservation Association . (2020). Retrieved from https://cowpastureriver.org/: https://cowpastureriver.org/
  • Dominion Pipeline Monitoring Coalition. (n.d.). Retrieved from http://pipelineupdate.org/: http://pipelineupdate.org/
  • Facing South . (n.d.). Retrieved from https://www.facingsouth.org: https://www.facingsouth.org/2019/12/big-energy-front-group-launches-push-troubled-atlantic-coast-pipeline
  • NC Warn . (n.d.). Retrieved from https://www.ncwarn.org: https://www.ncwarn.org/our-work/
  • Sierra Club . (n.d.). Retrieved from https://www.sierraclub.org/: https://www.sierraclub.org/
  • Southern Environment . (n.d.). Retrieved from https://www.southernenvironment.org: https://www.southernenvironment.org/cases-and-projects/proposed-natural-gas-pipeline-threatens-scenic-western-virginia
  • The Allegheny Blue-Ridge Alliance . (n.d.). Retrieved from https://www.abralliance.org/: https://www.abralliance.org/

 

References

Atlantic Coast Pipeline . (2020). Retrieved from www.atlanticcoastpipeline.com: https://atlanticcoastpipeline.com/

Ballotpedia . (2020). Retrieved from https://ballotpedia.org: https://ballotpedia.org/United_States_Forest_Service_v._Cowpasture_River_Preservation_Association

Cowpsture River Preservation Association . (2020). Retrieved from https://cowpastureriver.org/: https://cowpastureriver.org/

New York Times . (2020, February 23). Retrieved from www.nytimes.com : https://www.nytimes.com/2020/02/23/opinion/appalachian-trail-pipeline.html

SCOTUS Blog . (2020). Retrieved from www.scotusblog.com : https://www.scotusblog.com/case-files/cases/atlantic-coast-pipeline-llc-v-cowpasture-river-preservation-association/

US EPA Seeks to Limit What is Considered Usable Science

US EPA Seeks to Limit What is Considered Usable Science

Policy Summary
The Trump administration has proposed a new rule that would limit the kinds of research studies deemed credible and usable by the EPA for analysis of existing and proposed legislation and environmental practice. The administration is proposing that when the EPA is evaluating scientific research for the purposes of writing new legislation or revising existing legislation, the agency is to “give preference” to those studies that make all their underlying data available to the public. Though transparency is of course important, this proposal concerns many, because many significant and credible research studies rely on the personal data of individuals (such as health records), which are only made available by individuals to research scientists under the condition that their personal information will remain confidential. For example, a 1993 study by Harvard University called the Six Cities Study, found a link between air pollution and premature deaths. This study used the personal health records of its study subjects as part of its data analysis, including confirming that premature deaths weren’t just simply a result of other underlying illnesses the subjects may have already had. However, that data from the health records is confidential to those individuals and, under law, is not allowed to be released to the public. Many of the study participants were only persuaded to provide personal information, because they were ensured that their personal information would remain confidential. The Trump administration is essentially saying that those studies should no longer be considered so credible and thus, either shouldn’t be used in EPA analysis, or shouldn’t carry as much weight and influence as any other study that happens to have only publicly available data.

Analysis
This proposal is justified by the administration under the guise that it is making government research more transparent, but in reality, it is simply limiting the research that is available for analyzing many important environmental issues, including research that currently supports legislations that the administration has been unsuccessfully trying to roll back. Andrew R. Wheeler, the current Administrator of the EPA says the new rule “will ensure that all pivotal studies underpinning significant regulatory actions at the EPA, regardless of their source, are available for transparent review by qualified scientists” (Friedman). Contrary to Wheeler’s opinion, this comes off to many as simply a strategy to make credible, and possibly damaging, research un-usable in the analyses of many environmental issues. Lisa Friedman, of the New York Times, writes that the American Association for the Advancement of Science feels “The administration’s real goal was to raise suspicions about the bedrock studies that helped establish modern regulations governing clean air and water” (Friedman). And, that this is just another effort “to dilute scientific research, especially on climate change and air pollution, which has underpinned rules that the fossil fuel industry calls burdensome” (Friedman).

The scientific community has criticized the proposal since it was first initiated in 2018. At first, the new proposal mandated that only studies with full public data would be allowed for analysis by the EPA, but the administration recently revised that proposal to say “give preference” to studies that have made all of their underlying data public. Still, the proposal is being criticized by environmental activists and leaders from the Obama administration as making it “easier for the EPA to weaken or repeal existing health regulations, because studies that had previously been used to show the benefits might now be discarded or assigned less importance” (Friedman). Back in January, even an Advisory Panel of scientists appointed by Trump and Wheeler, criticized the new proposal, stating that the EPA has not “fully identified” what the health problem is that this rule is supposedly addressing. What health issue is the EPA trying to solve by implementing this proposal?

Gina McCarthy, Head of the EPA under the Obama administration, is criticizing the current agency leaders for moving forward with this new rule while our country is in the middle of the Covid-19 health crisis. She says, “Now is not the time to play games with critical medical research that underpins every rule designed to protect us from harmful pollution in our air and in our water” (Friedman). Andrew Rosenberg, Director of the Union of Concerned Scientists at the Center for Science and Democracy, said of the proposal, “Benchmark science like Harvard’s Six Cities air pollution study might soon be deemed inadmissible” (Friedman). Rosenberg continued, “They’re putting in non-scientific criteria to decide what science the agency can use.” “Now the most important thing is whether the data is public, not the strength of the scientific evidence” (Friedman). The proposal essentially gives the EPA Administrator the discretion to decide whether or not to use a study that has not made all its personnel and other data public. According to Rosenberg, this would essentially “take scientific decision-making out of the hands of scientists and hand it to a politically appointed administrator” (Friedman). In short, implementing this proposal would mean that at the United States Environmental Protection Agency, scientists no longer decide what the most credible data is, now a politician does.

Resistance Resources:

  • The American Association for the Advancement of Science
    • The world’s largest general scientific society, and an American international non-profit organization with the stated goals of promoting cooperation among scientists, defending scientific freedom, encouraging scientific responsibility, and supporting scientific education and science outreach for the betterment of all humanity. Publisher of the scientific journal Science.
    • https://www.aaas.org/
  • The Union of Concerned Scientists
    • Nonprofit science advocacy organization. Founded in 1969 to “initiate a critical and continuing examination of governmental policy in areas where science and technology are of actual or potential significance.”
    • https://ucsusa.org/
  • The National Association of Pediatric Nurse Practitioners
    • Dedicated since 1973 to “improving the quality of health care for infants, children and adolescents, and to advancing the APRN’s role in providing that care.”
    • https://www.napnap.org/
      • “Supporting academic health sciences libraries and directors in advancing the patient care, research, education, and community service missions of academic health centers through visionary executive leadership and expertise in health information, scholarly communication, and knowledge management.”
      • https://www.aahsl.org/The Association of Academic Health Science LibrariesPhoto by Hans Reniers
Trump’s Department  of Energy Sits on Congressionally  Approved Renewable Energy Funds

Trump’s Department of Energy Sits on Congressionally Approved Renewable Energy Funds

Policy
In 2019, the United States Congress approved $823 million in funding to the Department of Energy’s (DOE) Office of Energy Efficiency and Renewable Energy (EERE). $823 million represents over ⅓ of the EERE’s total budget. The EERE office, under supervision of the Trump administration has still not spent that money. That budget is designated for the funding of grants and other projects that support the research and development of electric vehicles, renewable energy sources, and energy efficiency improving technology. Not only has this budget not yet been spent, but the EERE has also already canceled a $46 million program created to fund solar research and development.

Some Republican committee members, such as Representative Ralph Norman of South Carolina say that it is “business as usual” to have such funds unspent and carry over into the next year (Noor). This response has left many committee members on the other side of the isle frustrated, because it is not typical for such a large amount, 1/3 of an office’s budget, to be withheld as “carryover.” And because of this, many assume that the withholding of these funds is a politically motivated strategy to undermine the effectiveness of the EERE office, which saw successful expansion under the Obama administration.

It should be noted that the Trump administration has aimed to cut the EERE’s budget since it came into office. Last year, the administration’s budget proposal attempted to cut funding to the EERE office by 86%. However, Congress largely ignored the request and actually increased the office’s budget.

Despite the misgivings of many Democrats on the committee, the EERE’s Assistant Secretary Daniel Simmons says, the department “fully intends to utilize its appropriated research funding,” and in a manner “consistent with both congressional guidance and administration priorities” (Natter; Noor). Again, it should be noted that Assistant Secretary Simmons, who was appointed by Trump to his role in 2017, has been an outspoken critic of renewable energy research and implementation. The Trump administration to date, has rolled back clean energy legislation, allowing coal plants to stay open longer, removed emission standards for power plants, as well as rolled back many auto emissions standards.

Analysis
Many believe the nonspending of funds appropriated to the EERE office is simply a political scheme to undermine the effectiveness of a program which grew under the Obama administration and has been largely successful. The EERE office has financed research into electric vehicles, ocean-generated energy technologies, as well as reducing the costs of LED lighting and finding ways to make the cost of wind power competitive with coal. Many Democrats share the sentiment of Representative Bill Foster of Illinois, when he says “When Congress passes a budget, we expect that budget to be followed,” and “it’s unclear to many of us if there has been a completely good-faith effort” (Natter).

The Natural Resources Defense Council (NRDC) has described the withholding as “ideologically driven efforts that thwart action to combat climate change” (Natter). Arjun Krishnaswami, analyst with the NRDC’s Climate and Clean Energy Program, says “The agency is flouting congressional intent” (Natter). Krishnaswami explains that “The magnitude of carryover funds is an indication of whether DOE is following congressional guidance and spending appropriated funds in a timely manner.” And, “more carryover funds mean less money from prior years is getting to clean energy innovators to do their work” (Noor). Just as the hearing to address these withholdings (which Krishnaswami gave his testimony at) began, the Department of Energy announced the funding of $126 million for solar technologies. Assistant Secretary Simmons pointed to this timely announcement, and stated that, “This has been a very good faith effort,” and “We are trying to be good stewards of taxpayer dollars” (Noor).

Resistance Resources

Learn More

Natter, Ari. “Trump Withholding $823 Million for Clean Energy, Democrats Say.” Bloomberg Green, Bloomberg.com, 5 Feb. 2020, www.bloomberg.com/news/articles/2020-02-05/trump-withholding-823-million-for-clean-energy-democrats-say.

Noor, Dharna. “The Trump Administration Is Withholding Almost $1 Billion in Renewable Energy Funding.” Earther, Gizmodo.com, 5 Feb. 2020, www.earther.gizmodo.com/the-trump-administration-is-withholding-almost-1-billi-1841475959.

 

 

 

 

 

The Role of the Judiciary in Interpreting Environmental Policy

The Role of the Judiciary in Interpreting Environmental Policy

Summary

Separation of powers are delegated to the three branches of government via article I section 8, of the U.S. Constitution, entrusting the legislative, executive and judicial branch with the authority to create, implement and interpret U.S law. The concept of environmental protection is a recent idea dating back to the creation of the EPA in the early 1970’s under the Nixon administration. In an era where President Donald Trump, has been named the most hostile president to ever reign over the EPA; the argument is whether or not the judiciary should assume a greater role addressing contentious environmental issues.

Analysis

There are several types of cases that provide insight into the evolving role of the judiciary in regards to environmental policy-making.

(1) Claims from communities that have been injured and suffered damages due to negligent practices on behalf of the government or industry.

For example, in deciding Massachusetts v. EPA 2007, the Supreme Court definitively stated that the Bush Administration needed to take immediate action to combat climate change. The landmark case recognized that the government has a duty and responsibility to regulate environmental issues and ordered swift action be taken to reduce emissions from tailpipes of automobiles.

(2) The interpretation of common law, written law and policy. Common law can be applied through the judiciary when an outcome cannot be determined by written law.

One such common law is The Public Trust Doctrine (PTD) which grants guaranteed permission to the public when accessing resources placed in trust with the states. Each state is individually tasked with the protection and maintenance of such resources. Originally, the PTD was invoked for public and commercial use of navigable waters, but in recent years, some states have expanded the doctrine to include resources such as wildlife, ecological systems, climate change, and atmosphere. Forward thinking states have contended that protection and use of these resources serve the public best when left in their natural state. Texas and New Mexico have added air as a public trust resource and Hawaii has applied the PTD to groundwater. The state of New Jersey has heightened its awareness of Natural Resource Damages initiating eight lawsuits alleging that hazardous substances, such as polycyclic aromatic hydrocarbons, arsenic and lead have seeped into groundwater and navigable waters. New Jersey Department of Environmental Protection v. Deull Fuel (2018) sought to recover natural resource damages caused by negligent discharge of harmful materials. The suit maintains that Deull Fuel Company of Atlantic City, NJ failed to dispose of toxins properly, thus polluting the surrounding area of Beach Thorofare an intercoastal waterway, which serves as a habitat for birds, wildlife, and a variety of plants; as well as a recreational spot for NJ residents and tourists. The suit alleged that Deull Fuel Company left the costly burden of environmental clean up for the tax payers to bear.  In August of 2019, The New Jersey Superior Court denied a motion to dismiss the states common law trespass claim because the Public Trust Doctrine supersedes the element of trespass. In taking legal action against companies that have failed to act environmentally responsible, the state of New Jersey is championing for the environment and for the health of their citizens.  Moving forward state uniformity of the PTD could pressure the federal government to create additional legislative protections for natural resources.

(3) Reparation claims by younger generations for the damage that climate change will inflict on their generation, e.g. Juliana v. The United States 2015

For example, Juliana v. United States 2015 avows that the government failed to protect the younger generations fundamental rights with respect to climate change. Concerned youth, ages 12-23 contended that the ignorance to protect public resources is a violation of their 1st amendment rights which will result in an ill-disposed quality of life as they enter into adulthood. On January 17, 2020 a divided Ninth Circuit Court of Appeals (2-1) found that the government was in violation of the plaintiff’s constitutional rights. Two of the judges presiding over the case urged the plaintiffs to seek remedy through the legislative and executive branches of government. The third judge affirmed the youths’ constitutional climate rights, writing “our nation is crumbling – at our governments’ own hand – into a wasteland.” Attorneys for the plaintiff will request that the full Ninth Circuit Court review this decision.

Resistance Resources

  • https://www.ourchildrenstrust.org/juliana-v-us- Our Children’s Trust is a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate.
  • https://www.youthvgov.org/- We all have the same rights to life, liberty, and property — but these rights depend on a safe climate. We are the 21 young Juliana plaintiffs suing the federal government to defend the rights of youth and future generations.
  • https://earthjustice.org/about- We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change.
  • https://www.sierraclub.org/- The Sierra Club is the most enduring and influential grassroots environmental organization in the United States. We amplify the power of our 3.8 million members and supporters to defend everyone’s right to a healthy world.
x
x

GET CONNECTED---signup to receive free, just in time briefs on government policies and the organizations working to resist them, IN YOUR INBOX.

Pin It on Pinterest