Speaker 1: EPA is well aware of all of these things, and
Speaker 1: they're worried about it, and all the staff is running
Speaker 1: around wishing that they could do something. The problem is
Speaker 1: they felt that they didn't have the authority and that
Speaker 1: none of the laws gave the authority. And in fact,
Speaker 1: the authority has been hiding in plain sight the entire
Speaker 1: time under the Toxic Substances Act. But there was sort
Speaker 1: of a perceived wisdom that the Toxic Substances Control Act
Speaker 1: didn't work based on how the Agency got hammered over asbestos.
Speaker 1: And it was actually the agency's fault because they didn't
Speaker 1: do their due diligence, but they thought they had a
Speaker 1: slam dunk there.
Speaker 2: It didn't work.
Speaker 1: They kind of threw up their hands and say, we
Speaker 1: have to work under the Clean Air Act, which is
Speaker 1: an abysmal law.
Speaker 3: Welcome back to drill that I'm naming Westervelt. A lot
Speaker 3: of kin folks are moments waiting for the Supreme Court
Speaker 3: to rule in West Virginia versus APA. That case questions
Speaker 3: whether the EPA has the authority to regulate greenhouse gas
Speaker 3: emissions from power plants, particularly beyond the immediate area of
Speaker 3: the plants themselves. Folks are worried the court might come
Speaker 3: down with a broad ruling that severely limits the agency's
Speaker 3: ability to regulate greenhouse gases. Period. The other end of
Speaker 3: the spectrum is entirely possible too. The case argues about
Speaker 3: a problem that no longer exists, the Clean Power Plan. Historically,
Speaker 3: when the Court is asked to rule on something that
Speaker 3: has become a moot point over the course of litigation,
Speaker 3: they opt not to rule. In this case, it's unclear
Speaker 3: which direction they'll go. While we wait to see what
Speaker 3: will happen there, it's important to remember a couple of things. First,
Speaker 3: West Virginia versus EPA deals specifically with the Clean Air Act. Historically,
Speaker 3: the Clean Air Act is the law that's been invoked
Speaker 3: in various efforts to deal with greenhouse gases, and for
Speaker 3: obvious reasons, if you're trying to regulate something that's released
Speaker 3: into the air, it makes sense to invoke the law
Speaker 3: to protect the air. But first of all, the EPA
Speaker 3: absolutely can continue to regulate particulate matter under the Cleaner Act.
Speaker 3: That's a type of air pollution that's produced by the
Speaker 3: same activity that produces greenhouse gas emissions. The combustion of
Speaker 3: fossil fuels. And secondly, the Cleaner Act is not the
Speaker 3: only law that's relevant here in the intro there you
Speaker 3: heard former EPA scientist Don Viviani speaking at a press
Speaker 3: conference earlier this month.
Speaker 1: I was actually director of Climate Policy Assessment Division for
Speaker 1: a while in the nineties.
Speaker 3: Vivianni says, climate advocates have been sleeping on a law
Speaker 3: that might actually be better suited than the Clean Air
Speaker 3: Act to deal with climate change, the Toxic Substances Control Act,
Speaker 3: or TOSCA, And this.
Speaker 1: Sort of problem is exactly the thing that task was
Speaker 1: designed for. Congress knew that there were problems out there
Speaker 1: that were multimedia, multi program that a single media act
Speaker 1: couldn't handle, and that we needed something more expansive. It
Speaker 1: was designed to take care of things that the other
Speaker 1: laws weren't properly taken care of. And if you look
Speaker 1: back at the history of climate it's quite clear then
Speaker 1: none of the other laws are taking care of this.
Speaker 1: So this is exactly what TOSCO was designed to do.
Speaker 3: Actually, Vivianni has signed on to a petition being filed
Speaker 3: with the EPA today requesting that the agency regulate greenhouse
Speaker 3: gas emissions under TOSCA. Other petitioners include climate scientists doctor
Speaker 3: James Hansen and climate accountability expert Richard Heaty, who authored
Speaker 3: the famed Carbon Meter's report, which pinpointed the seventy companies
Speaker 3: most responsible for climate change. The petitioners are asking that
Speaker 3: the EPA acknowledged the risk posed by greenhouse gases and
Speaker 3: commence rulemaking to deal with it. So TOASCA has historically
Speaker 3: applied to chemicals and materials only, notes that it has
Speaker 3: actually been used to regulate gases in the past as well.
Speaker 4: OSCAR actually was used in nineteen seventy eight for just
Speaker 4: this purpose with respect to CFCs on the ground in
Speaker 4: the rule that CFCs were endangering the ozone layer and
Speaker 4: presented a serious risk with respect to global warming. CFCs
Speaker 4: are also a gas, and therefore you know there actually
Speaker 4: is strong precedent in EPA's own actions and utilizing this
Speaker 4: statute to kickstart in the effort to get rid of
Speaker 4: that potent pollutant that has very strong greenhouse gas forcing
Speaker 4: effect as well, it.
Speaker 3: Also has the benefit of clear language that was strengthened
Speaker 3: as recently as twenty sixteen by a bipartisan effort.
Speaker 1: They just reauthorized the the Act in twenty sixteen is
Speaker 1: a bipartisan reauthorization. So clearly this is the language that
Speaker 1: was The TOSK is supposed to deal with. Unreasonable risk
Speaker 1: is recent and it was a bipartisan It was a
Speaker 1: bipartisan passage.
Speaker 3: Doctor James Hansen says he hopes this effort will give
Speaker 3: the agency the boost it needs to act before it's
Speaker 3: too late.
Speaker 2: We're so far off and that just hasn't hasn't sunk yet.
Speaker 2: And you know, even though we have International Organization Framework
Speaker 2: Convention on Climate Change and the conferences of the parties,
Speaker 2: some of the stuff that they're coming out with is
Speaker 2: pretty nonsensical. The last cop the head said, we've kept
Speaker 2: within the possibility to stay under one five degrees warming.
Speaker 2: That's absolute bullshit. There's too much inertia in the energy
Speaker 2: system and in the warming that's in the pipeline. Just
Speaker 2: because this the planet is now out of balance by
Speaker 2: an enormous amount. Doesn't sound like much a little more
Speaker 2: than a one walk per meter square, but that contains
Speaker 2: more than one degree celsius additional warming, and we're already
Speaker 2: at one point too. So yeah, we've we've passed the
Speaker 2: point of being dangerous, but we can still deal with
Speaker 2: the situation if we begin to make a fossil fuels
Speaker 2: pay their cost to society and and do that in
Speaker 2: a way which can be made global. And the United
Speaker 2: States should be the leader. We are by far the
Speaker 2: most responsible for the situation we're in, both on an
Speaker 2: absolute basis and even more so on a per capitat basis,
Speaker 2: and we're derelict in not not fescing up to that responsibility.
Speaker 5: And the government is not doing that now even though
Speaker 5: they claim, oh, we're going to reduce emission fifty Well
Speaker 5: that's you've got to do it in a way that
Speaker 5: can be made global, and we have to recognize our
Speaker 5: global responsibility, and we're not doing that.
Speaker 3: But this in today's episode, we're going to delve into
Speaker 3: this novel approach to regulating greenhouse gas emissions. After the break,
Speaker 3: I'll be joined by Attorney Dan Gelbern, Executive Director and
Speaker 3: General Council of the Climate Protection and Restoration Initiative. He's
Speaker 3: representing the petitioners. He'll walk us through the argument here
Speaker 3: and why he thinks it just might work.
Speaker 6: Stay with us.
Speaker 3: So I'm hoping that you can start with an explanation
Speaker 3: of why TOSCA is so well suited to dealing with
Speaker 3: greenhouse gas emissions, and the decision to kind of avoid
Speaker 3: the Clean Air Act in this petition certainly well.
Speaker 7: TASCA is well situated to serve as a foundational statute
Speaker 7: for a wide ranging decarbonization effort in the United States
Speaker 7: because of its very strong language and because we have
Speaker 7: gone so far beyond the level of safe atmospheric CO
Speaker 7: two and other greenhouse gas emissions, and so what is
Speaker 7: needed now is not merely tinkering at the edges, but
Speaker 7: restrictions to the point of prohibition, to the point of
Speaker 7: a phase out actually of greenhouse gas emission sources, at
Speaker 7: least the major ones, because as the Administration itself has recognized,
Speaker 7: we need not only to get to net zero in
Speaker 7: terms of CO two and other GHD emissions, but we
Speaker 7: have to get to net negative, and we have to
Speaker 7: do that as soon as possible, and certainly soon after
Speaker 7: the mid century point. So what we're trying to provide
Speaker 7: is a firm legal foundation under which these types of
Speaker 7: actions can proceed and to avoid the recurrent and protract
Speaker 7: the deadlock in Congress over any the need for any
Speaker 7: new legislation. No new legislation is needed here. Congress acted
Speaker 7: strongly in passing the Toxic Substances Control Act and in
Speaker 7: amending it just six years ago in twenty sixteen.
Speaker 3: Right, and can you talk about how some of the
Speaker 3: improvements to TOSCA helped us strengthen this petition? What were
Speaker 3: those changes in twenty sixteen, and right, and how they
Speaker 3: come into play here.
Speaker 7: Right, Let's first talk about the threshold determination that needs
Speaker 7: to be made by EPA when considering any specific chemical
Speaker 7: substances or mixtures. We are proceeding here under section twenty
Speaker 7: one of the Toxic Substances Control Act, the Citizens Provision,
Speaker 7: and it allows citizens to request that the agency commence
Speaker 7: a rule making in order to deal with chemical substances
Speaker 7: or mixtures that present a risk of injury to health
Speaker 7: or the environment. And we certainly have that here overwhelmingly
Speaker 7: with respect to the climate crisis. And so the threshold
Speaker 7: determination EPA needs to make is just that do greenhouse
Speaker 7: gas emissions and their major sources, do they present a
Speaker 7: risk of injury to health or the environment or not.
Speaker 7: When they make that determination, then that commences a rule making,
Speaker 7: and so they need to make that determination within ninety
Speaker 7: days of our filing of this petition, and then the
Speaker 7: rule making will take as long as it's necessary, and
Speaker 7: it could be several different rule makings, but Congress specified
Speaker 7: a set of requirements that need to be imposed by
Speaker 7: the agency until the point that the chemical substances and
Speaker 7: mixtures no longer present the risk of injury to health
Speaker 7: in the environment. So that's the threshold determination, and that
Speaker 7: is specifically what we're seeking in this petition now where
Speaker 7: we lay out a little bit in the petition what
Speaker 7: we think a adequate rule would look like, But with
Speaker 7: respect to the legal impact of this petition, it is
Speaker 7: simply asking for EPA's initial determination. We would then participate
Speaker 7: in the rule making process, as would perhaps a number
Speaker 7: of other people, to attempt to ensure the strongest and
Speaker 7: most adequate rule to address this crisis.
Speaker 3: Right, can you walk you through how this intersects with
Speaker 3: what may or may not come out from the Supreme
Speaker 3: Court this month on West Virginia versus EPA, and what
Speaker 3: sorts of legal challenges you expect to see.
Speaker 7: Certainly, well, First of all, a rule making under TOSCA
Speaker 7: does not mean that other authorities should not continue to
Speaker 7: be utilized, and in fact, the petition strongly recommends continuing
Speaker 7: to utilize the Clean Air Act and other authorities. That
Speaker 7: makes sense. There's a challenge, as you noted, right now
Speaker 7: before the Supreme Court in West Virginia versus Environmental Protection Agency.
Speaker 7: We're talking on June fifteen. Anticipate that decision any day
Speaker 7: and certainly by the first few days of July. That
Speaker 7: deals specifically with section one to eleven D of the
Speaker 7: Clean Air Act. One eleven D of the Clean Air
Speaker 7: Act has nothing to do with our petition under the
Speaker 7: Toxic Substances Control Act. One eleven D of the Clean
Speaker 7: Air Act confers authority on EPA to compel emissions controls
Speaker 7: from existing power plants. And there is a specific question
Speaker 7: as to whether the Obama EPA, in fashioning the now
Speaker 7: dormant Clean Power Plan, overstepped its bounds and read into
Speaker 7: that provision of law authority to restrict emissions outside the
Speaker 7: fence line of power plants rather than just inside the
Speaker 7: fence line of power plants. So that's a specific, fairly
Speaker 7: narrow technical issue. Those including West Virginia, number of other
Speaker 7: conservative states, and a portion of the fossil fuel industry
Speaker 7: are urging the Supreme Court in that case to rule
Speaker 7: much more broadly to say that without express language in
Speaker 7: this statute, no federal agency can really do much to
Speaker 7: restrict economic activity at the center of industrial policy within
Speaker 7: a sector of the economy. And so they're seeking to
Speaker 7: have a very broad prohibition against not only the EPA
Speaker 7: but other agencies attempts to restrict activity that even where
Speaker 7: it presents a significant risk to human health or the environment.
Speaker 7: But you know, it's very unclear to me whether the
Speaker 7: Supreme Court will take up that ivy. I'm not saying
Speaker 7: it's impossible, we will see. But the language at issue
Speaker 7: in section one to eleven D, I think, while the
Speaker 7: EPA did construe it correctly, is far more vague or
Speaker 7: ambiguous than the language that we're relying on under the
Speaker 7: Toxic Substance Control Act in our petition. All that is
Speaker 7: to say, therefore, that I think that even if the
Speaker 7: Supreme Court rules very broadly in West Virgini Universus EPA,
Speaker 7: the legal basis for our petition under the Toxic Substance
Speaker 7: Control Act should be unaffected.
Speaker 3: Right, Right, And what are some of the potential outcomes here?
Speaker 7: Okay, Well, let me first talk about what needs to
Speaker 7: happen and why this works as doctor Hanson and other
Speaker 7: climate scientists have established, and I note doctor Hanson because
Speaker 7: he's one of the co petitioners of this petition, they
Speaker 7: have established that we, as I indicated before, have already
Speaker 7: gone well into the danger zone with respect to the
Speaker 7: atmospheric concentration of greenhouse gas gases, including carbon dioxide and
Speaker 7: CO two and methane THH four and the halogenated fluoro
Speaker 7: carbons and so on. And what that means then, especially
Speaker 7: in light of the long atmospheric residency time of carbon dioxide,
Speaker 7: we need not only to phase out emissions, but we
Speaker 7: also need to remove a substantial portion of the so
Speaker 7: called legacy emissions, the emissions that remain in the air
Speaker 7: from past industrial and economic activity exxons, emissions from nineteen
Speaker 7: twenty or emissions deriving from the sale of their product
Speaker 7: gasoline oil. A substantial share of that remains in the
Speaker 7: atmosphere for millennia and there continues to heat the planet
Speaker 7: unless it is unless we work to accelerate its removal.
Speaker 7: Nature will remove it, but over hundreds of thousands of
Speaker 7: years to millions of years. We can't wait that long.
Speaker 7: So then, corresponding to the problem that we confront this
Speaker 7: petition seeks a phase out of emissions, again of course
Speaker 7: within reach of US law. This is a global problem,
Speaker 7: and we hope that the United States, and setting a
Speaker 7: good example, will strengthen international institutions that are attempting to
Speaker 7: address this problem globally. And there's good reason that that
Speaker 7: would work, both phase out emissions within reach of US
Speaker 7: law and to ensure removal of the overburden of the
Speaker 7: surf feet of atmospheric CO two that human activity is
Speaker 7: responsible for. And so the first is accomplished by imposing
Speaker 7: restrictions and to ensure a substantial phase out of continuing
Speaker 7: or new greenhouse gas emissions, and the second would be
Speaker 7: accomplished pursuant to rule making to fossil fuel industry, which
Speaker 7: is the major source of greenhouse gas emissions in the
Speaker 7: United States and in most other nations, would be required
Speaker 7: to either remove or to pay for the removal of
Speaker 7: a substantial share of its emissions. We recognize that it
Speaker 7: would probably untenable to compel the fossil fuel industry to
Speaker 7: remove all of its emissions from time immorial, and so
Speaker 7: in effect there's a burden sharing presumption in the petition,
Speaker 7: so industry would be responsible for fifty percent of their
Speaker 7: legacy emissions since nineteen ninety two, that is the date
Speaker 7: of the signing of the United Nations Frame of Convention
Speaker 7: on Climate Change, And it's a ratification in the United
Speaker 7: States Senate because that's the point at which there is
Speaker 7: absolutely no reasonable doubt that the industry was on full
Speaker 7: notice that their activity was creating a untenable situation for
Speaker 7: the planet, and that everyone was obliged to do something
Speaker 7: about it, at least arguably. So, I think it's a
Speaker 7: very reasonable, perhaps even generous compromise. In the law, where
Speaker 7: a person or a company substantially contributes to a problem
Speaker 7: that leads to the death or injury of people, the
Speaker 7: basic principle is joined several liabilities so that the entirety
Speaker 7: of the problem, that one can be held responsible for
Speaker 7: the entirety of the problem where you have substantially contributed,
Speaker 7: and then you would seek contribution from co defendants. But
Speaker 7: here we're seeking to apportion responsibility in this way so
Speaker 7: that they would be responsible for fifty percent of their
Speaker 7: emissions only since nineteen ninety two, and then that obligation
Speaker 7: would grow with time, so that soon after mid century,
Speaker 7: the industry would be responsible to remove all of the
Speaker 7: greenhouse gas emissions that results from the use as intended
Speaker 7: of their product burning coal, oil and gas. So those
Speaker 7: are the two sets of responsibilities that petitioners have in
Speaker 7: mind that would be the outcome of a rule making.
Speaker 7: It's consistent with the prescription in the three major studies
Speaker 7: that were produced this last year by the Intergovernmental Panel
Speaker 7: on Climate Change and the overwhelming consensus of the relevant
Speaker 7: scientific community that we need both the phase out emissions
Speaker 7: worldwide and we need to remove a substantial share of
Speaker 7: the overburden greenhouse gas emissions that are long resident in
Speaker 7: the atmosphere and in the ocean. So we need to
Speaker 7: essentially clean up the mess, and the major industry bears
Speaker 7: a substantial share of the burden to get that done, right,
Speaker 7: got it? Okay?
Speaker 3: Can you walk through some of the potential outcomes here?
Speaker 3: I know you're expecting legal challenges. What might those be?
Speaker 7: Well, we're in a retigious society. This is a industry,
Speaker 7: the fossil fuel industry, the predominant source of greenhouse gas
Speaker 7: emissions in this country, that is used to getting its way.
Speaker 7: On the other hand, there have been a series of
Speaker 7: successful regulatory programs that have limited the industry's unfettered right
Speaker 7: to treat the atmosphere as an open sewer, and it
Speaker 7: has adjusted well, and we believe that it would adjust
Speaker 7: well to this type of regulation. That is to say,
Speaker 7: the industry would be transformed into an energy industry. Just
Speaker 7: last week, the United Nations General Secretary called for the
Speaker 7: phase out of fossil fuels worldwide. They don't have to
Speaker 7: go to court and challenges. They could participate in good
Speaker 7: faith in the rulemaking process and we come up with
Speaker 7: a reasonable pathway to get from a disaster to safety.
Speaker 7: In the alternative, they could challenge EPA's decision. That would
Speaker 7: I think be legal insanity for them to argue that
Speaker 7: greenhouse gas emissions do not present a risk of injury
Speaker 7: to health or the environment. I think that they would
Speaker 7: certainly lose on that. We are prepared to go to
Speaker 7: court to defend a favorable agency determination, and we will
Speaker 7: do what's necessary going from one end of this country
Speaker 7: to another to galvanize the public to ensure that the
Speaker 7: administration has the political support it needs to do what
Speaker 7: is right here, and that is to take strong action
Speaker 7: to preserve our nation from the continuing threat of devastating
Speaker 7: climate change. It's within reach because of this petition and
Speaker 7: pointing out, you know, this strong tool that has been
Speaker 7: hiding in plain view. It's a tool that therefore should
Speaker 7: be used to address what the President has called an
Speaker 7: existential risk, an existential threat. So, yeah, there's possibility there
Speaker 7: will be opposition. There's also the possibility that there will
Speaker 7: be cooperation and we will join together to fashion a
Speaker 7: reasonable and timely rule to protect our country.
Speaker 3: Is there some sense to that Under TOSCA, multiple other
Speaker 3: sources of greenhouse gas emissions can be regulated, you know,
Speaker 3: beyond the power plans.
Speaker 7: To the ordering is really a question of priorities and
Speaker 7: what's the most important to be done, what's the most
Speaker 7: difficult to be done. The Toxic Substance Control Act provides
Speaker 7: significant authority to the agency to do what's necessary to
Speaker 7: protect the public and the environment from chemical substances and
Speaker 7: mixtures that are present a overwhelming threat.
Speaker 2: And so.
Speaker 7: There are diffuse sources, including in agriculture, concentrated animal feeding operations.
Speaker 7: There's a significant amount of methane that is produced there
Speaker 7: as well as CO two. But the agency would need
Speaker 7: to decide on priorities and on the ordering, and I
Speaker 7: anticipate that it would be seeking to control restrict the
Speaker 7: major sources of emissions first, which includes coal, oil and
Speaker 7: gas production and also importation and use and disposal. I mean,
Speaker 7: we dispose of the greenhouse gas emissions from the burning
Speaker 7: of coal, oil, and gas right now, predominantly by just
Speaker 7: releasing it into the atmosphere, as if the atmosphere is
Speaker 7: a free and open sewer and that needs to be
Speaker 7: phased out as rapidly as possible. But yes, the statue
Speaker 7: does provide a strong tool to the agency to address
Speaker 7: the gamut of problems arising from the production of these
Speaker 7: chemical substances, of mixtures, the greenhouse gas emissions and their
Speaker 7: major sources.
Speaker 2: Right.
Speaker 3: I think that we covered everything, But is there anything
Speaker 3: that we didn't talk about that you think is important
Speaker 3: for people to know or to understand about this petition.
Speaker 7: One of the things I would like to say, however,
Speaker 7: is that this petition also serves as something of an
Speaker 7: antidote to despair that increasingly infects a public that is
Speaker 7: knowledgeable about the scope and the severity of the crisis
Speaker 7: that we confront.
Speaker 3: That's it for this week. To read or endorse the
Speaker 3: petition and track its progress, check out cprclimate dot org.
Speaker 3: We'll bring you an update when the EPA makes a
Speaker 3: decision too before you exit out of your podcast app.
Speaker 3: If you could just take a moment to rate or
Speaker 3: review the podcast, I'd really appreciate it. It helps the
Speaker 3: show reach more listeners. Thanks for that, and thanks for listening,
Speaker 3: and we'll see you next time. Drilled is an original
Speaker 3: production of the Critical Frequency Podcast Network. Our producer is
Speaker 3: Jules Bradley, our editor is Jude Joffee, Block mixing, sound
Speaker 3: design and scoring by Peter Duff, and I'm your host
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