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Speaker 1: EPA is well aware of all of these things, and

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Speaker 1: they're worried about it, and all the staff is running

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Speaker 1: around wishing that they could do something. The problem is

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Speaker 1: they felt that they didn't have the authority and that

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Speaker 1: none of the laws gave the authority. And in fact,

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Speaker 1: the authority has been hiding in plain sight the entire

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Speaker 1: time under the Toxic Substances Act. But there was sort

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Speaker 1: of a perceived wisdom that the Toxic Substances Control Act

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Speaker 1: didn't work based on how the Agency got hammered over asbestos.

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Speaker 1: And it was actually the agency's fault because they didn't

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Speaker 1: do their due diligence, but they thought they had a

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Speaker 1: slam dunk there.

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Speaker 2: It didn't work.

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Speaker 1: They kind of threw up their hands and say, we

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Speaker 1: have to work under the Clean Air Act, which is

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Speaker 1: an abysmal law.

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Speaker 3: Welcome back to drill that I'm naming Westervelt. A lot

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Speaker 3: of kin folks are moments waiting for the Supreme Court

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Speaker 3: to rule in West Virginia versus APA. That case questions

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Speaker 3: whether the EPA has the authority to regulate greenhouse gas

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Speaker 3: emissions from power plants, particularly beyond the immediate area of

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Speaker 3: the plants themselves. Folks are worried the court might come

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Speaker 3: down with a broad ruling that severely limits the agency's

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Speaker 3: ability to regulate greenhouse gases. Period. The other end of

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Speaker 3: the spectrum is entirely possible too. The case argues about

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Speaker 3: a problem that no longer exists, the Clean Power Plan. Historically,

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Speaker 3: when the Court is asked to rule on something that

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Speaker 3: has become a moot point over the course of litigation,

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Speaker 3: they opt not to rule. In this case, it's unclear

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Speaker 3: which direction they'll go. While we wait to see what

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Speaker 3: will happen there, it's important to remember a couple of things. First,

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Speaker 3: West Virginia versus EPA deals specifically with the Clean Air Act. Historically,

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Speaker 3: the Clean Air Act is the law that's been invoked

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Speaker 3: in various efforts to deal with greenhouse gases, and for

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Speaker 3: obvious reasons, if you're trying to regulate something that's released

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Speaker 3: into the air, it makes sense to invoke the law

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Speaker 3: to protect the air. But first of all, the EPA

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Speaker 3: absolutely can continue to regulate particulate matter under the Cleaner Act.

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Speaker 3: That's a type of air pollution that's produced by the

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Speaker 3: same activity that produces greenhouse gas emissions. The combustion of

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Speaker 3: fossil fuels. And secondly, the Cleaner Act is not the

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Speaker 3: only law that's relevant here in the intro there you

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Speaker 3: heard former EPA scientist Don Viviani speaking at a press

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Speaker 3: conference earlier this month.

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Speaker 1: I was actually director of Climate Policy Assessment Division for

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Speaker 1: a while in the nineties.

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Speaker 3: Vivianni says, climate advocates have been sleeping on a law

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Speaker 3: that might actually be better suited than the Clean Air

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Speaker 3: Act to deal with climate change, the Toxic Substances Control Act,

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Speaker 3: or TOSCA, And this.

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Speaker 1: Sort of problem is exactly the thing that task was

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Speaker 1: designed for. Congress knew that there were problems out there

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Speaker 1: that were multimedia, multi program that a single media act

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Speaker 1: couldn't handle, and that we needed something more expansive. It

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Speaker 1: was designed to take care of things that the other

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Speaker 1: laws weren't properly taken care of. And if you look

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Speaker 1: back at the history of climate it's quite clear then

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Speaker 1: none of the other laws are taking care of this.

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Speaker 1: So this is exactly what TOSCO was designed to do.

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Speaker 3: Actually, Vivianni has signed on to a petition being filed

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Speaker 3: with the EPA today requesting that the agency regulate greenhouse

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Speaker 3: gas emissions under TOSCA. Other petitioners include climate scientists doctor

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Speaker 3: James Hansen and climate accountability expert Richard Heaty, who authored

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Speaker 3: the famed Carbon Meter's report, which pinpointed the seventy companies

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Speaker 3: most responsible for climate change. The petitioners are asking that

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Speaker 3: the EPA acknowledged the risk posed by greenhouse gases and

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Speaker 3: commence rulemaking to deal with it. So TOASCA has historically

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Speaker 3: applied to chemicals and materials only, notes that it has

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Speaker 3: actually been used to regulate gases in the past as well.

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Speaker 4: OSCAR actually was used in nineteen seventy eight for just

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Speaker 4: this purpose with respect to CFCs on the ground in

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Speaker 4: the rule that CFCs were endangering the ozone layer and

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Speaker 4: presented a serious risk with respect to global warming. CFCs

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Speaker 4: are also a gas, and therefore you know there actually

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Speaker 4: is strong precedent in EPA's own actions and utilizing this

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Speaker 4: statute to kickstart in the effort to get rid of

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Speaker 4: that potent pollutant that has very strong greenhouse gas forcing

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Speaker 4: effect as well, it.

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Speaker 3: Also has the benefit of clear language that was strengthened

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Speaker 3: as recently as twenty sixteen by a bipartisan effort.

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Speaker 1: They just reauthorized the the Act in twenty sixteen is

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Speaker 1: a bipartisan reauthorization. So clearly this is the language that

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Speaker 1: was The TOSK is supposed to deal with. Unreasonable risk

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Speaker 1: is recent and it was a bipartisan It was a

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Speaker 1: bipartisan passage.

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Speaker 3: Doctor James Hansen says he hopes this effort will give

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Speaker 3: the agency the boost it needs to act before it's

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Speaker 3: too late.

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Speaker 2: We're so far off and that just hasn't hasn't sunk yet.

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Speaker 2: And you know, even though we have International Organization Framework

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Speaker 2: Convention on Climate Change and the conferences of the parties,

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Speaker 2: some of the stuff that they're coming out with is

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Speaker 2: pretty nonsensical. The last cop the head said, we've kept

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Speaker 2: within the possibility to stay under one five degrees warming.

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Speaker 2: That's absolute bullshit. There's too much inertia in the energy

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Speaker 2: system and in the warming that's in the pipeline. Just

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Speaker 2: because this the planet is now out of balance by

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Speaker 2: an enormous amount. Doesn't sound like much a little more

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Speaker 2: than a one walk per meter square, but that contains

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Speaker 2: more than one degree celsius additional warming, and we're already

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Speaker 2: at one point too. So yeah, we've we've passed the

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Speaker 2: point of being dangerous, but we can still deal with

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Speaker 2: the situation if we begin to make a fossil fuels

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Speaker 2: pay their cost to society and and do that in

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Speaker 2: a way which can be made global. And the United

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Speaker 2: States should be the leader. We are by far the

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Speaker 2: most responsible for the situation we're in, both on an

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Speaker 2: absolute basis and even more so on a per capitat basis,

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Speaker 2: and we're derelict in not not fescing up to that responsibility.

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Speaker 5: And the government is not doing that now even though

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Speaker 5: they claim, oh, we're going to reduce emission fifty Well

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Speaker 5: that's you've got to do it in a way that

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Speaker 5: can be made global, and we have to recognize our

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Speaker 5: global responsibility, and we're not doing that.

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Speaker 3: But this in today's episode, we're going to delve into

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Speaker 3: this novel approach to regulating greenhouse gas emissions. After the break,

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Speaker 3: I'll be joined by Attorney Dan Gelbern, Executive Director and

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Speaker 3: General Council of the Climate Protection and Restoration Initiative. He's

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Speaker 3: representing the petitioners. He'll walk us through the argument here

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Speaker 3: and why he thinks it just might work.

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Speaker 6: Stay with us.

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Speaker 3: So I'm hoping that you can start with an explanation

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Speaker 3: of why TOSCA is so well suited to dealing with

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Speaker 3: greenhouse gas emissions, and the decision to kind of avoid

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Speaker 3: the Clean Air Act in this petition certainly well.

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Speaker 7: TASCA is well situated to serve as a foundational statute

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Speaker 7: for a wide ranging decarbonization effort in the United States

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Speaker 7: because of its very strong language and because we have

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Speaker 7: gone so far beyond the level of safe atmospheric CO

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Speaker 7: two and other greenhouse gas emissions, and so what is

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Speaker 7: needed now is not merely tinkering at the edges, but

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Speaker 7: restrictions to the point of prohibition, to the point of

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Speaker 7: a phase out actually of greenhouse gas emission sources, at

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Speaker 7: least the major ones, because as the Administration itself has recognized,

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Speaker 7: we need not only to get to net zero in

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Speaker 7: terms of CO two and other GHD emissions, but we

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Speaker 7: have to get to net negative, and we have to

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Speaker 7: do that as soon as possible, and certainly soon after

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Speaker 7: the mid century point. So what we're trying to provide

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Speaker 7: is a firm legal foundation under which these types of

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Speaker 7: actions can proceed and to avoid the recurrent and protract

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Speaker 7: the deadlock in Congress over any the need for any

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Speaker 7: new legislation. No new legislation is needed here. Congress acted

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Speaker 7: strongly in passing the Toxic Substances Control Act and in

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Speaker 7: amending it just six years ago in twenty sixteen.

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Speaker 3: Right, and can you talk about how some of the

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Speaker 3: improvements to TOSCA helped us strengthen this petition? What were

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Speaker 3: those changes in twenty sixteen, and right, and how they

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Speaker 3: come into play here.

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Speaker 7: Right, Let's first talk about the threshold determination that needs

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Speaker 7: to be made by EPA when considering any specific chemical

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Speaker 7: substances or mixtures. We are proceeding here under section twenty

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Speaker 7: one of the Toxic Substances Control Act, the Citizens Provision,

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Speaker 7: and it allows citizens to request that the agency commence

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Speaker 7: a rule making in order to deal with chemical substances

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Speaker 7: or mixtures that present a risk of injury to health

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Speaker 7: or the environment. And we certainly have that here overwhelmingly

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Speaker 7: with respect to the climate crisis. And so the threshold

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Speaker 7: determination EPA needs to make is just that do greenhouse

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Speaker 7: gas emissions and their major sources, do they present a

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Speaker 7: risk of injury to health or the environment or not.

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Speaker 7: When they make that determination, then that commences a rule making,

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Speaker 7: and so they need to make that determination within ninety

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Speaker 7: days of our filing of this petition, and then the

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Speaker 7: rule making will take as long as it's necessary, and

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Speaker 7: it could be several different rule makings, but Congress specified

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Speaker 7: a set of requirements that need to be imposed by

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Speaker 7: the agency until the point that the chemical substances and

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Speaker 7: mixtures no longer present the risk of injury to health

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Speaker 7: in the environment. So that's the threshold determination, and that

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Speaker 7: is specifically what we're seeking in this petition now where

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Speaker 7: we lay out a little bit in the petition what

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Speaker 7: we think a adequate rule would look like, But with

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Speaker 7: respect to the legal impact of this petition, it is

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Speaker 7: simply asking for EPA's initial determination. We would then participate

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Speaker 7: in the rule making process, as would perhaps a number

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Speaker 7: of other people, to attempt to ensure the strongest and

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Speaker 7: most adequate rule to address this crisis.

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Speaker 3: Right, can you walk you through how this intersects with

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Speaker 3: what may or may not come out from the Supreme

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Speaker 3: Court this month on West Virginia versus EPA, and what

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Speaker 3: sorts of legal challenges you expect to see.

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Speaker 7: Certainly, well, First of all, a rule making under TOSCA

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Speaker 7: does not mean that other authorities should not continue to

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Speaker 7: be utilized, and in fact, the petition strongly recommends continuing

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Speaker 7: to utilize the Clean Air Act and other authorities. That

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Speaker 7: makes sense. There's a challenge, as you noted, right now

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Speaker 7: before the Supreme Court in West Virginia versus Environmental Protection Agency.

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Speaker 7: We're talking on June fifteen. Anticipate that decision any day

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Speaker 7: and certainly by the first few days of July. That

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Speaker 7: deals specifically with section one to eleven D of the

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Speaker 7: Clean Air Act. One eleven D of the Clean Air

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Speaker 7: Act has nothing to do with our petition under the

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Speaker 7: Toxic Substances Control Act. One eleven D of the Clean

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Speaker 7: Air Act confers authority on EPA to compel emissions controls

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Speaker 7: from existing power plants. And there is a specific question

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Speaker 7: as to whether the Obama EPA, in fashioning the now

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Speaker 7: dormant Clean Power Plan, overstepped its bounds and read into

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Speaker 7: that provision of law authority to restrict emissions outside the

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Speaker 7: fence line of power plants rather than just inside the

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Speaker 7: fence line of power plants. So that's a specific, fairly

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Speaker 7: narrow technical issue. Those including West Virginia, number of other

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Speaker 7: conservative states, and a portion of the fossil fuel industry

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Speaker 7: are urging the Supreme Court in that case to rule

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Speaker 7: much more broadly to say that without express language in

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Speaker 7: this statute, no federal agency can really do much to

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Speaker 7: restrict economic activity at the center of industrial policy within

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Speaker 7: a sector of the economy. And so they're seeking to

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Speaker 7: have a very broad prohibition against not only the EPA

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Speaker 7: but other agencies attempts to restrict activity that even where

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Speaker 7: it presents a significant risk to human health or the environment.

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Speaker 7: But you know, it's very unclear to me whether the

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Speaker 7: Supreme Court will take up that ivy. I'm not saying

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Speaker 7: it's impossible, we will see. But the language at issue

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Speaker 7: in section one to eleven D, I think, while the

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Speaker 7: EPA did construe it correctly, is far more vague or

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Speaker 7: ambiguous than the language that we're relying on under the

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Speaker 7: Toxic Substance Control Act in our petition. All that is

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Speaker 7: to say, therefore, that I think that even if the

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Speaker 7: Supreme Court rules very broadly in West Virgini Universus EPA,

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Speaker 7: the legal basis for our petition under the Toxic Substance

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Speaker 7: Control Act should be unaffected.

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Speaker 3: Right, Right, And what are some of the potential outcomes here?

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Speaker 7: Okay, Well, let me first talk about what needs to

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Speaker 7: happen and why this works as doctor Hanson and other

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Speaker 7: climate scientists have established, and I note doctor Hanson because

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Speaker 7: he's one of the co petitioners of this petition, they

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Speaker 7: have established that we, as I indicated before, have already

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Speaker 7: gone well into the danger zone with respect to the

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Speaker 7: atmospheric concentration of greenhouse gas gases, including carbon dioxide and

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Speaker 7: CO two and methane THH four and the halogenated fluoro

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Speaker 7: carbons and so on. And what that means then, especially

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Speaker 7: in light of the long atmospheric residency time of carbon dioxide,

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Speaker 7: we need not only to phase out emissions, but we

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Speaker 7: also need to remove a substantial portion of the so

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Speaker 7: called legacy emissions, the emissions that remain in the air

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Speaker 7: from past industrial and economic activity exxons, emissions from nineteen

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Speaker 7: twenty or emissions deriving from the sale of their product

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Speaker 7: gasoline oil. A substantial share of that remains in the

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Speaker 7: atmosphere for millennia and there continues to heat the planet

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Speaker 7: unless it is unless we work to accelerate its removal.

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Speaker 7: Nature will remove it, but over hundreds of thousands of

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Speaker 7: years to millions of years. We can't wait that long.

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Speaker 7: So then, corresponding to the problem that we confront this

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Speaker 7: petition seeks a phase out of emissions, again of course

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Speaker 7: within reach of US law. This is a global problem,

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Speaker 7: and we hope that the United States, and setting a

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Speaker 7: good example, will strengthen international institutions that are attempting to

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Speaker 7: address this problem globally. And there's good reason that that

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Speaker 7: would work, both phase out emissions within reach of US

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Speaker 7: law and to ensure removal of the overburden of the

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Speaker 7: surf feet of atmospheric CO two that human activity is

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Speaker 7: responsible for. And so the first is accomplished by imposing

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Speaker 7: restrictions and to ensure a substantial phase out of continuing

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Speaker 7: or new greenhouse gas emissions, and the second would be

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Speaker 7: accomplished pursuant to rule making to fossil fuel industry, which

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Speaker 7: is the major source of greenhouse gas emissions in the

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Speaker 7: United States and in most other nations, would be required

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Speaker 7: to either remove or to pay for the removal of

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Speaker 7: a substantial share of its emissions. We recognize that it

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Speaker 7: would probably untenable to compel the fossil fuel industry to

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Speaker 7: remove all of its emissions from time immorial, and so

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Speaker 7: in effect there's a burden sharing presumption in the petition,

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Speaker 7: so industry would be responsible for fifty percent of their

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Speaker 7: legacy emissions since nineteen ninety two, that is the date

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Speaker 7: of the signing of the United Nations Frame of Convention

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Speaker 7: on Climate Change, And it's a ratification in the United

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Speaker 7: States Senate because that's the point at which there is

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Speaker 7: absolutely no reasonable doubt that the industry was on full

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Speaker 7: notice that their activity was creating a untenable situation for

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Speaker 7: the planet, and that everyone was obliged to do something

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Speaker 7: about it, at least arguably. So, I think it's a

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Speaker 7: very reasonable, perhaps even generous compromise. In the law, where

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Speaker 7: a person or a company substantially contributes to a problem

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Speaker 7: that leads to the death or injury of people, the

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Speaker 7: basic principle is joined several liabilities so that the entirety

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Speaker 7: of the problem, that one can be held responsible for

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Speaker 7: the entirety of the problem where you have substantially contributed,

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Speaker 7: and then you would seek contribution from co defendants. But

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Speaker 7: here we're seeking to apportion responsibility in this way so

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Speaker 7: that they would be responsible for fifty percent of their

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Speaker 7: emissions only since nineteen ninety two, and then that obligation

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Speaker 7: would grow with time, so that soon after mid century,

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Speaker 7: the industry would be responsible to remove all of the

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Speaker 7: greenhouse gas emissions that results from the use as intended

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Speaker 7: of their product burning coal, oil and gas. So those

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Speaker 7: are the two sets of responsibilities that petitioners have in

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Speaker 7: mind that would be the outcome of a rule making.

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Speaker 7: It's consistent with the prescription in the three major studies

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Speaker 7: that were produced this last year by the Intergovernmental Panel

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Speaker 7: on Climate Change and the overwhelming consensus of the relevant

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Speaker 7: scientific community that we need both the phase out emissions

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Speaker 7: worldwide and we need to remove a substantial share of

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Speaker 7: the overburden greenhouse gas emissions that are long resident in

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Speaker 7: the atmosphere and in the ocean. So we need to

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Speaker 7: essentially clean up the mess, and the major industry bears

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Speaker 7: a substantial share of the burden to get that done, right,

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Speaker 7: got it? Okay?

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Speaker 3: Can you walk through some of the potential outcomes here?

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Speaker 3: I know you're expecting legal challenges. What might those be?

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Speaker 7: Well, we're in a retigious society. This is a industry,

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Speaker 7: the fossil fuel industry, the predominant source of greenhouse gas

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Speaker 7: emissions in this country, that is used to getting its way.

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Speaker 7: On the other hand, there have been a series of

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Speaker 7: successful regulatory programs that have limited the industry's unfettered right

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Speaker 7: to treat the atmosphere as an open sewer, and it

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Speaker 7: has adjusted well, and we believe that it would adjust

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Speaker 7: well to this type of regulation. That is to say,

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Speaker 7: the industry would be transformed into an energy industry. Just

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Speaker 7: last week, the United Nations General Secretary called for the

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Speaker 7: phase out of fossil fuels worldwide. They don't have to

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Speaker 7: go to court and challenges. They could participate in good

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Speaker 7: faith in the rulemaking process and we come up with

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Speaker 7: a reasonable pathway to get from a disaster to safety.

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Speaker 7: In the alternative, they could challenge EPA's decision. That would

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Speaker 7: I think be legal insanity for them to argue that

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Speaker 7: greenhouse gas emissions do not present a risk of injury

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Speaker 7: to health or the environment. I think that they would

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Speaker 7: certainly lose on that. We are prepared to go to

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Speaker 7: court to defend a favorable agency determination, and we will

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Speaker 7: do what's necessary going from one end of this country

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Speaker 7: to another to galvanize the public to ensure that the

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Speaker 7: administration has the political support it needs to do what

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Speaker 7: is right here, and that is to take strong action

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Speaker 7: to preserve our nation from the continuing threat of devastating

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Speaker 7: climate change. It's within reach because of this petition and

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Speaker 7: pointing out, you know, this strong tool that has been

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Speaker 7: hiding in plain view. It's a tool that therefore should

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Speaker 7: be used to address what the President has called an

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Speaker 7: existential risk, an existential threat. So, yeah, there's possibility there

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Speaker 7: will be opposition. There's also the possibility that there will

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Speaker 7: be cooperation and we will join together to fashion a

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Speaker 7: reasonable and timely rule to protect our country.

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Speaker 3: Is there some sense to that Under TOSCA, multiple other

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Speaker 3: sources of greenhouse gas emissions can be regulated, you know,

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Speaker 3: beyond the power plans.

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Speaker 7: To the ordering is really a question of priorities and

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Speaker 7: what's the most important to be done, what's the most

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Speaker 7: difficult to be done. The Toxic Substance Control Act provides

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Speaker 7: significant authority to the agency to do what's necessary to

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Speaker 7: protect the public and the environment from chemical substances and

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Speaker 7: mixtures that are present a overwhelming threat.

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Speaker 2: And so.

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Speaker 7: There are diffuse sources, including in agriculture, concentrated animal feeding operations.

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Speaker 7: There's a significant amount of methane that is produced there

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Speaker 7: as well as CO two. But the agency would need

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Speaker 7: to decide on priorities and on the ordering, and I

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Speaker 7: anticipate that it would be seeking to control restrict the

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Speaker 7: major sources of emissions first, which includes coal, oil and

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Speaker 7: gas production and also importation and use and disposal. I mean,

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Speaker 7: we dispose of the greenhouse gas emissions from the burning

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Speaker 7: of coal, oil, and gas right now, predominantly by just

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Speaker 7: releasing it into the atmosphere, as if the atmosphere is

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Speaker 7: a free and open sewer and that needs to be

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Speaker 7: phased out as rapidly as possible. But yes, the statue

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Speaker 7: does provide a strong tool to the agency to address

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Speaker 7: the gamut of problems arising from the production of these

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Speaker 7: chemical substances, of mixtures, the greenhouse gas emissions and their

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Speaker 7: major sources.

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Speaker 2: Right.

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Speaker 3: I think that we covered everything, But is there anything

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Speaker 3: that we didn't talk about that you think is important

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Speaker 3: for people to know or to understand about this petition.

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Speaker 7: One of the things I would like to say, however,

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Speaker 7: is that this petition also serves as something of an

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Speaker 7: antidote to despair that increasingly infects a public that is

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Speaker 7: knowledgeable about the scope and the severity of the crisis

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Speaker 7: that we confront.

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Speaker 3: That's it for this week. To read or endorse the

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Speaker 3: petition and track its progress, check out cprclimate dot org.

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Speaker 3: We'll bring you an update when the EPA makes a

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Speaker 3: decision too before you exit out of your podcast app.

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Speaker 3: If you could just take a moment to rate or

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Speaker 3: review the podcast, I'd really appreciate it. It helps the

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Speaker 3: show reach more listeners. Thanks for that, and thanks for listening,

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Speaker 3: and we'll see you next time. Drilled is an original

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Speaker 3: production of the Critical Frequency Podcast Network. Our producer is

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Speaker 3: Jules Bradley, our editor is Jude Joffee, Block mixing, sound

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Speaker 3: design and scoring by Peter Duff, and I'm your host

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