1 00:00:21,040 --> 00:00:25,200 Speaker 1: November was a really big month for climate lawsuits. Earlier 2 00:00:25,239 --> 00:00:27,400 Speaker 1: in the month, the folks who had been petitioning the 3 00:00:27,440 --> 00:00:31,640 Speaker 1: EPA to use the Toxic Substances Control Act or TOSCA 4 00:00:31,680 --> 00:00:35,760 Speaker 1: to regulate greenhouse gas emissions filed a civil suit to 5 00:00:35,920 --> 00:00:40,000 Speaker 1: compel them to do so. Here's longtime EPA scientist Don 6 00:00:40,080 --> 00:00:41,840 Speaker 1: Viviani on why. 7 00:00:42,120 --> 00:00:44,239 Speaker 2: I could never understand when I was at the agency 8 00:00:44,360 --> 00:00:49,480 Speaker 2: why they would meet a petition to regulate greenhouse guests 9 00:00:49,560 --> 00:00:53,320 Speaker 2: is under TOSCO. It's maddening that with a petition they're 10 00:00:53,400 --> 00:00:56,400 Speaker 2: unwilling to do their job. Tosc is a chemical safety 11 00:00:56,440 --> 00:01:00,040 Speaker 2: Act supposed to keep us safe from unsafe chemicals. O 12 00:01:00,160 --> 00:01:04,080 Speaker 2: two and methane are the two most unsafe chemicals that 13 00:01:04,120 --> 00:01:05,880 Speaker 2: mankind has ever been presented with. 14 00:01:06,640 --> 00:01:09,600 Speaker 1: We'll hear more from Viviani as well as Dan Gelbern, 15 00:01:09,680 --> 00:01:12,720 Speaker 1: the lead attorney on that case, in a minute. But first, 16 00:01:13,160 --> 00:01:17,720 Speaker 1: in other major climate litigation news, the first ever climate 17 00:01:17,880 --> 00:01:22,160 Speaker 1: RICO case has now been filed. The Racketeer Influenced and 18 00:01:22,280 --> 00:01:26,319 Speaker 1: Corrupt Organizations Act was passed in the nineteen seventies to 19 00:01:26,319 --> 00:01:28,640 Speaker 1: give the government a way to deal with organized crime 20 00:01:28,959 --> 00:01:31,920 Speaker 1: the mafia. In the eighties, the Supreme Court upheld the 21 00:01:32,000 --> 00:01:34,640 Speaker 1: use of the law in civil cases as well, which 22 00:01:34,680 --> 00:01:39,240 Speaker 1: can be brought against individuals, organizations, or corporations. If you 23 00:01:39,319 --> 00:01:41,880 Speaker 1: listened to our season on the Chevron Ecuador case, you 24 00:01:41,959 --> 00:01:46,440 Speaker 1: might remember that Chevron successfully sued US attorney Stephen Donziger 25 00:01:46,520 --> 00:01:49,600 Speaker 1: under Rico. This time, the complaint flows the other way, 26 00:01:49,800 --> 00:01:53,520 Speaker 1: alleging that the global oil majors, their trade associations, and 27 00:01:53,560 --> 00:01:57,400 Speaker 1: a network of dark money funded think tanks and operatives 28 00:01:57,760 --> 00:02:01,160 Speaker 1: where part of an organized conspiracy to mislead the public 29 00:02:01,240 --> 00:02:05,360 Speaker 1: on climate change, resulting in a multitude of damages. The 30 00:02:05,360 --> 00:02:09,160 Speaker 1: plaintiffs in this case are sixteen municipalities in the Commonwealth 31 00:02:09,240 --> 00:02:13,160 Speaker 1: of Puerto Rico that suffered tremendous damage when Hurricane Maria 32 00:02:13,280 --> 00:02:16,320 Speaker 1: hit and are steering down the barrel of more intense 33 00:02:16,400 --> 00:02:20,280 Speaker 1: and more frequent hurricanes for the foreseeable future, as we 34 00:02:20,360 --> 00:02:24,600 Speaker 1: saw recently with Hurricane Fiona. I started following this case 35 00:02:24,639 --> 00:02:27,440 Speaker 1: three years ago and went to Puerto Rico in twenty 36 00:02:27,520 --> 00:02:31,840 Speaker 1: nineteen with Attorney Melissa Kay Sims. Simms is senior counsel 37 00:02:31,960 --> 00:02:36,520 Speaker 1: for the plaintiff's law firm Millburg, which also handled several 38 00:02:36,600 --> 00:02:40,840 Speaker 1: of the opioid Rico cases. In fact, Sims originally went 39 00:02:40,919 --> 00:02:43,920 Speaker 1: to Puerto Rico while working on one of those cases. 40 00:02:45,280 --> 00:02:49,240 Speaker 3: The interesting part about the opioid litigation is that really 41 00:02:49,280 --> 00:02:53,120 Speaker 3: it all started in Puerto Rico. Yeah, we represent most 42 00:02:53,160 --> 00:02:55,799 Speaker 3: of the municipalities. We follow the class action for the 43 00:02:55,880 --> 00:02:59,400 Speaker 3: municipalities in Puerto Rico early on, and we filed racketeering 44 00:02:59,480 --> 00:03:02,160 Speaker 3: out one of the first cases that filed racketeering in 45 00:03:02,200 --> 00:03:05,280 Speaker 3: federal court. And what we found out was, you know, 46 00:03:05,400 --> 00:03:07,320 Speaker 3: Puerto Rico has been kind of the guinea pig for 47 00:03:07,520 --> 00:03:09,000 Speaker 3: big Pharma. 48 00:03:09,120 --> 00:03:11,800 Speaker 1: One of her first trips there was about a year 49 00:03:11,880 --> 00:03:15,200 Speaker 1: after Hurricane Maria, and she was shocked by how much 50 00:03:15,240 --> 00:03:18,239 Speaker 1: devastation there still was. I was shocked by how much 51 00:03:18,320 --> 00:03:22,160 Speaker 1: there was even in twenty nineteen, and there's still things 52 00:03:22,240 --> 00:03:25,680 Speaker 1: that haven't been fixed, or things that were fixed and 53 00:03:25,720 --> 00:03:29,560 Speaker 1: that got broken again when Fiona hit. While she was 54 00:03:29,600 --> 00:03:32,799 Speaker 1: traveling back and forth to Puerto Rico, Sim saw various 55 00:03:32,880 --> 00:03:37,400 Speaker 1: articles in newspapers talking about how hurricanes were becoming more intense, 56 00:03:37,800 --> 00:03:41,160 Speaker 1: storm surge was becoming more damaging thanks to climate change, 57 00:03:41,360 --> 00:03:45,200 Speaker 1: and importantly, how several of these outcomes had been predicted 58 00:03:45,280 --> 00:03:48,920 Speaker 1: decades earlier by climate scientists. Who were working for oil 59 00:03:48,960 --> 00:03:51,480 Speaker 1: companies at the time. A light bulb went off. 60 00:03:52,360 --> 00:03:55,120 Speaker 3: If it's proven that you that you cause it, and 61 00:03:55,160 --> 00:03:58,640 Speaker 3: if it's proven that you, you know, conspired with somebody 62 00:03:58,640 --> 00:04:02,800 Speaker 3: else to profit off that loss to the municipality, you 63 00:04:02,800 --> 00:04:03,480 Speaker 3: should have paper. 64 00:04:05,120 --> 00:04:08,920 Speaker 1: Last week, Milberg, the firm that SIMS works with, filed 65 00:04:08,920 --> 00:04:13,440 Speaker 1: a reco case on behalf of sixteen Puerto Rican municipalities 66 00:04:13,560 --> 00:04:17,800 Speaker 1: against seven oil companies, three coal companies, and hundreds of 67 00:04:18,000 --> 00:04:25,479 Speaker 1: organizations and operatives alleging consumer fraud, racketeering, antitrust, fraudulent misrepresentation, 68 00:04:26,240 --> 00:04:33,920 Speaker 1: negligent misrepresentation, negligent fraudulent concealment, conspiracy to defraud, products, liability, 69 00:04:34,279 --> 00:04:38,320 Speaker 1: strict liability, failure to warn, negligent failure to warn, and 70 00:04:38,640 --> 00:04:42,680 Speaker 1: unjust enrichment as a result of the devastating storms of 71 00:04:42,720 --> 00:04:47,000 Speaker 1: September twenty seventeen and the aftermath of those storms, which 72 00:04:47,040 --> 00:04:51,080 Speaker 1: occurred as a result of the defendants acts and omissions. 73 00:04:51,680 --> 00:04:55,960 Speaker 1: It's a whopping case. The complaint itself is thousands of pages, 74 00:04:56,080 --> 00:04:59,080 Speaker 1: with lots and lots of exhibits. I'll be bringing you 75 00:04:59,200 --> 00:05:01,479 Speaker 1: a whole lot more this story in the weeks and 76 00:05:01,560 --> 00:05:05,480 Speaker 1: months ahead. But having spoken to a few legal analysts 77 00:05:05,520 --> 00:05:09,800 Speaker 1: about it already, I can say it is a big deal. 78 00:05:10,480 --> 00:05:12,200 Speaker 1: After the break, we're going to talk about the other 79 00:05:12,240 --> 00:05:16,040 Speaker 1: climate case I mentioned up top. NASA climate scientist James Hanson, 80 00:05:16,200 --> 00:05:19,400 Speaker 1: Carbon Major's Report author Richard Heady, and a handful of 81 00:05:19,440 --> 00:05:22,320 Speaker 1: other folks have sued the EPA to compel them to 82 00:05:22,440 --> 00:05:27,400 Speaker 1: regulate greenhouse gas emissions under the Toxic Substances Control Act. 83 00:05:27,760 --> 00:05:42,640 Speaker 1: I'm Amie Westervelt, and this is drilled earlier this year, 84 00:05:42,760 --> 00:05:47,080 Speaker 1: doctor James Hanson, Richard Heaty, Don Viviani, who you heard 85 00:05:47,080 --> 00:05:50,799 Speaker 1: from up top, and climate psychologist Lee's Van Susterron filed 86 00:05:50,920 --> 00:05:54,240 Speaker 1: a petition to the EPA asking them to make a 87 00:05:54,279 --> 00:06:00,000 Speaker 1: determination around a pretty straightforward question, do greenhouse gases post 88 00:06:00,120 --> 00:06:04,280 Speaker 1: was an unreasonable risk to environmental and human health? If so, 89 00:06:04,640 --> 00:06:08,720 Speaker 1: they would fall under the Toxic Substances Control Act, or TOSCA, 90 00:06:08,920 --> 00:06:12,680 Speaker 1: which explicitly gives the EPA the right to create rules 91 00:06:12,920 --> 00:06:16,760 Speaker 1: that would remove that harm. In September, the EPA rejected 92 00:06:16,760 --> 00:06:20,360 Speaker 1: that petition, and in early November the petitioners took their 93 00:06:20,440 --> 00:06:23,839 Speaker 1: case to court. I talked to Attorney Dan Gilburn of 94 00:06:23,880 --> 00:06:28,839 Speaker 1: the Climate Protection and Restoration Initiative and Viviani shortly after 95 00:06:28,880 --> 00:06:29,920 Speaker 1: the case was filed. 96 00:06:31,160 --> 00:06:33,680 Speaker 2: My name is Don Viviani. I was a scientist at 97 00:06:33,760 --> 00:06:36,400 Speaker 2: EPA for about thirty four to thirty five years, and 98 00:06:36,480 --> 00:06:39,680 Speaker 2: at one point in the nineties I was director of 99 00:06:39,720 --> 00:06:42,960 Speaker 2: the Climate Policy Assessment Division. So a lot of what's 100 00:06:43,000 --> 00:06:46,240 Speaker 2: going on now is my fault, and I apologize for that, 101 00:06:46,279 --> 00:06:48,640 Speaker 2: but it was a long time ago, and I also 102 00:06:49,080 --> 00:06:52,400 Speaker 2: had some other divisions that were with regulations, and I 103 00:06:52,440 --> 00:06:54,320 Speaker 2: was I was chairman of the Great Lakes and Water 104 00:06:54,360 --> 00:06:57,080 Speaker 2: Quality Commission Toxic Substice Commission, so I know a little 105 00:06:57,080 --> 00:06:59,360 Speaker 2: bit about all of the things that are here. 106 00:06:59,560 --> 00:07:03,640 Speaker 4: My name is Dan Galpern. I am the founder, executive 107 00:07:03,680 --> 00:07:08,200 Speaker 4: director and General counsel of Climate Protection and Restoration Initiative, 108 00:07:08,480 --> 00:07:13,360 Speaker 4: and for about the last thirteen years and still I 109 00:07:13,480 --> 00:07:18,880 Speaker 4: serve as the attorney and policy advisor to the well 110 00:07:18,880 --> 00:07:23,280 Speaker 4: known climate scientist James Hansen. And I met John probably 111 00:07:23,360 --> 00:07:26,400 Speaker 4: about seven years ago when we were talking of a 112 00:07:26,440 --> 00:07:30,640 Speaker 4: similar petition to the Environmental Protection Agency that he actually filed. 113 00:07:31,040 --> 00:07:35,440 Speaker 4: So under the Toxic Substances Control Act, the Environmental Protection 114 00:07:35,520 --> 00:07:40,760 Speaker 4: Agency is to impose certain restrictions on a chemical substance 115 00:07:40,880 --> 00:07:44,720 Speaker 4: or mixture where the agency determines that that chemical substance 116 00:07:44,800 --> 00:07:48,400 Speaker 4: or mixture presents an unreasonable risk of injury to health 117 00:07:48,480 --> 00:07:51,320 Speaker 4: or the environment, And the law was established to protect 118 00:07:51,360 --> 00:07:57,920 Speaker 4: the public and the natural world from the increasing intrusion 119 00:07:58,040 --> 00:08:05,200 Speaker 4: into the environment of chemical substances from our increasingly industrial society. 120 00:08:05,440 --> 00:08:11,080 Speaker 4: And so our petition established I think in considerable detail 121 00:08:11,320 --> 00:08:15,840 Speaker 4: that greenhouse gases and fossil fuels, which are the primary 122 00:08:15,880 --> 00:08:20,400 Speaker 4: sources of the overconcentration of greenhouse gases in the atmosphere now, 123 00:08:20,480 --> 00:08:23,800 Speaker 4: especially carbon dioxide and methane, and some of the other 124 00:08:24,240 --> 00:08:28,560 Speaker 4: greenhouse gases as well, clearly impose an unreasonable risk of 125 00:08:28,640 --> 00:08:31,480 Speaker 4: injury to help them the environment. In fact, President Biden, 126 00:08:31,640 --> 00:08:34,640 Speaker 4: both before he became president as candidate and then also 127 00:08:34,760 --> 00:08:38,520 Speaker 4: as president, has referred to the climate crisis that's created 128 00:08:38,559 --> 00:08:41,880 Speaker 4: by the over concentration of these chemicals as an existential 129 00:08:41,960 --> 00:08:44,559 Speaker 4: threat to our nation and to the planet. So it's 130 00:08:44,559 --> 00:08:47,880 Speaker 4: well beyond an unreasonable risk, and there are alternative which 131 00:08:48,040 --> 00:08:52,640 Speaker 4: renders the risk doubly unreasonable. So our petition called upon 132 00:08:52,679 --> 00:08:56,560 Speaker 4: the agency to undertake a rule making to eliminate that 133 00:08:56,679 --> 00:09:00,320 Speaker 4: unreasonable risk, and in particular, we said it should act 134 00:09:00,400 --> 00:09:04,240 Speaker 4: under the statute to phase out greenhouse gas emissions and 135 00:09:04,600 --> 00:09:07,520 Speaker 4: fossil fuels. And the reason for that, as we explain 136 00:09:07,600 --> 00:09:11,080 Speaker 4: in the petition, is that current global warming and current 137 00:09:11,440 --> 00:09:16,280 Speaker 4: acidification of the oceans is a function not of future emissions, 138 00:09:16,320 --> 00:09:20,480 Speaker 4: but of the accumulated emissions from especially since the late 139 00:09:20,600 --> 00:09:23,920 Speaker 4: late nineteen seventies and nineteen eighties, and so the companies 140 00:09:23,920 --> 00:09:26,280 Speaker 4: that have profited the most from the ability to utilize 141 00:09:26,280 --> 00:09:29,040 Speaker 4: the atmosphere as an open sewer should by right pay 142 00:09:29,520 --> 00:09:32,000 Speaker 4: to at least in part, to clean up their mess. 143 00:09:32,080 --> 00:09:34,240 Speaker 2: I could never understand when I was at the agency 144 00:09:34,320 --> 00:09:37,280 Speaker 2: why they would need a petition to regulate greenhouse gases 145 00:09:37,360 --> 00:09:41,120 Speaker 2: under TOSCO. It's maddening that with a petition they're unwilling 146 00:09:41,240 --> 00:09:44,000 Speaker 2: to do their job. TOSK is a chemical safety actor. 147 00:09:44,080 --> 00:09:47,200 Speaker 2: It's supposed to keep us safe from unsafe chemicals. CO 148 00:09:47,440 --> 00:09:50,800 Speaker 2: two and methane are the two most unsafe chemicals that 149 00:09:50,920 --> 00:09:54,840 Speaker 2: mankind has ever been presented with. If TOSCA can't regulate 150 00:09:54,920 --> 00:09:56,880 Speaker 2: those two things, I don't know what the hell it's 151 00:09:56,920 --> 00:10:00,240 Speaker 2: good for. So really, all the petition does is stas 152 00:10:00,400 --> 00:10:02,720 Speaker 2: epated to its job. The science of the risk isn't 153 00:10:02,720 --> 00:10:05,359 Speaker 2: particularly fancy. I mean it's the physics of a microwave 154 00:10:05,400 --> 00:10:07,880 Speaker 2: oven and the chemistry of your soda stream machine. So 155 00:10:08,040 --> 00:10:10,559 Speaker 2: it's not like the science is a problem. And we're 156 00:10:10,600 --> 00:10:13,640 Speaker 2: already seeing the fact that these greenhouse gasses, the legacy 157 00:10:13,640 --> 00:10:15,840 Speaker 2: ones that are still up there, are baking and burning 158 00:10:15,840 --> 00:10:17,640 Speaker 2: the planet and acidifying the ocean. 159 00:10:17,679 --> 00:10:18,600 Speaker 5: So the risk is there. 160 00:10:18,679 --> 00:10:20,840 Speaker 2: All the elements are there. They just need to do 161 00:10:20,880 --> 00:10:21,959 Speaker 2: their job absolutely. 162 00:10:22,080 --> 00:10:25,319 Speaker 4: Thanks for that. The reason we turned to this approach, well, 163 00:10:25,440 --> 00:10:28,280 Speaker 4: number one, it makes sense because the law is clear 164 00:10:28,400 --> 00:10:31,480 Speaker 4: on its face. If there are chemical substances and mixtures 165 00:10:31,520 --> 00:10:35,280 Speaker 4: that present an unreasonable risk, the agency must act to 166 00:10:35,320 --> 00:10:37,959 Speaker 4: eliminate that unreasonable risk, to the point of fidding those 167 00:10:38,040 --> 00:10:41,120 Speaker 4: chemical substances and mixtures. But the reason we turn to 168 00:10:41,160 --> 00:10:44,280 Speaker 4: this as well is because this is existing law, and 169 00:10:44,920 --> 00:10:48,760 Speaker 4: for decades now, Congress has been at an impasse over 170 00:10:48,840 --> 00:10:51,920 Speaker 4: what to do about the climate crisis. Now, this year, 171 00:10:52,200 --> 00:10:55,240 Speaker 4: with the passage of the Inflation Reduction Act and the 172 00:10:55,320 --> 00:11:00,760 Speaker 4: earlier passage of the Bipartisan Infrastructure Law, the Democratic majorities 173 00:11:00,920 --> 00:11:06,040 Speaker 4: in both houses did act somewhat to begin addressing the 174 00:11:06,160 --> 00:11:10,640 Speaker 4: risk by amplifying investments and clean energy, and by paying 175 00:11:10,720 --> 00:11:15,080 Speaker 4: for additional research and development and deployment of carbon negative 176 00:11:15,280 --> 00:11:20,320 Speaker 4: technologies to remove or learn how to remove excess greenhouse 177 00:11:20,360 --> 00:11:24,239 Speaker 4: gases from the atmosphere. But two things. Number one, it's 178 00:11:24,559 --> 00:11:28,080 Speaker 4: no better than a drop in the proverbial bucket. Number two, 179 00:11:28,520 --> 00:11:32,480 Speaker 4: it's all done on the taxpayer's dime. And so in 180 00:11:32,520 --> 00:11:38,120 Speaker 4: no way do these efforts begin to require the industries 181 00:11:38,920 --> 00:11:41,640 Speaker 4: that have most profited from the ability to futilize the 182 00:11:41,679 --> 00:11:44,840 Speaker 4: atmosphere as an open sewer to try to resolve the problem. 183 00:11:44,880 --> 00:11:48,480 Speaker 4: And that's important because unless we establish the principle that 184 00:11:48,559 --> 00:11:51,840 Speaker 4: the polluter should pay to help clean up its mess 185 00:11:51,960 --> 00:11:55,680 Speaker 4: then we're essentially imposing the entire burden on our children 186 00:11:55,679 --> 00:11:58,760 Speaker 4: and future generations. Very needs to have a substantial stake 187 00:11:58,960 --> 00:12:02,440 Speaker 4: in this on just the ability to profit from certain 188 00:12:02,480 --> 00:12:06,600 Speaker 4: new tax credits. We should impose an incentive structure for 189 00:12:06,679 --> 00:12:10,760 Speaker 4: them to rapidly phase out emissions and to commence to 190 00:12:10,840 --> 00:12:11,760 Speaker 4: cleaning up their messages. 191 00:12:11,920 --> 00:12:16,320 Speaker 2: Do you want to comment on the IRA, It's fine. 192 00:12:16,400 --> 00:12:19,160 Speaker 2: It's fine that that it does. It does decarbonize a 193 00:12:19,160 --> 00:12:22,920 Speaker 2: little bit. It certainly does provide for some decarbonization. Again, 194 00:12:22,960 --> 00:12:25,960 Speaker 2: as Dan said, on a taxpayer's time and enables people 195 00:12:26,040 --> 00:12:29,080 Speaker 2: who have a tax liability, so it's not everybody, but 196 00:12:29,120 --> 00:12:31,559 Speaker 2: it enables people to have a tax liability to use 197 00:12:31,559 --> 00:12:34,720 Speaker 2: greener energy. And that's great. But if you want to 198 00:12:34,840 --> 00:12:37,480 Speaker 2: fix the problem, well, first of all, fossil fuels are 199 00:12:37,520 --> 00:12:41,360 Speaker 2: part of our economic DNA, and you really can't fix 200 00:12:41,480 --> 00:12:45,959 Speaker 2: greenhouse guess problems without an economic solution. And there are 201 00:12:45,960 --> 00:12:49,480 Speaker 2: two ways to limit our deduction of greenhouse gases. Number one, 202 00:12:49,720 --> 00:12:52,600 Speaker 2: you can limit fossil fuel supply and you can limit 203 00:12:52,640 --> 00:12:56,679 Speaker 2: fossil fuel demand. Fossil fuel demand is limited somewhat by 204 00:12:56,720 --> 00:12:59,640 Speaker 2: the decarbonization. You know, people won't need as much if 205 00:12:59,640 --> 00:13:02,360 Speaker 2: they've got heat pumps out there and they're using solar energy, 206 00:13:02,520 --> 00:13:05,240 Speaker 2: and that's fine, but we're actually increasing a little bit 207 00:13:05,280 --> 00:13:08,520 Speaker 2: fossil fuel supply through some of the aspects of the IRA. 208 00:13:09,280 --> 00:13:12,800 Speaker 2: For example, it allows power plants and industrial boilers and 209 00:13:12,840 --> 00:13:16,360 Speaker 2: other folks to continue to burn coal and oil and 210 00:13:16,440 --> 00:13:19,400 Speaker 2: natural gas as long as they capture some small portion 211 00:13:19,520 --> 00:13:23,880 Speaker 2: of that using carbon capture and storage. Now, city production 212 00:13:23,920 --> 00:13:27,160 Speaker 2: and power production is a high cost infrastructure in low marginy, 213 00:13:27,320 --> 00:13:30,880 Speaker 2: and if the taxpayer is paying for the infrastructure that's 214 00:13:30,960 --> 00:13:36,960 Speaker 2: required to carbon capture, then actually we're actually making sure 215 00:13:37,000 --> 00:13:39,160 Speaker 2: that we're going to be using fossil fuels far into 216 00:13:39,200 --> 00:13:42,320 Speaker 2: the future, and especially since so most of the carbon 217 00:13:42,360 --> 00:13:46,960 Speaker 2: that's captured is not actually sequestered initially, it's actually used 218 00:13:47,000 --> 00:13:49,800 Speaker 2: to capture gas and oil. It's hard to get to 219 00:13:49,960 --> 00:13:52,680 Speaker 2: so it's actually producing more oil and gas than they 220 00:13:52,679 --> 00:13:56,000 Speaker 2: would have otherwise. Plus through carbon capture and storage, if 221 00:13:56,000 --> 00:13:58,840 Speaker 2: you look at the upstream and downstream emissions, you're actually 222 00:13:58,840 --> 00:14:02,200 Speaker 2: only capturing forty fifty percent of the power. Plants are 223 00:14:02,200 --> 00:14:05,800 Speaker 2: emitting about fifteen times the ambient levels of CO two 224 00:14:06,040 --> 00:14:08,040 Speaker 2: under the best conditions of carbon capture. 225 00:14:08,120 --> 00:14:10,720 Speaker 5: I mean, we had them kind of same again with 226 00:14:10,880 --> 00:14:15,440 Speaker 5: the cop negotiations, where you know, there's very little appetite 227 00:14:15,440 --> 00:14:18,600 Speaker 5: for saying no more fossil fuels or no more missions. 228 00:14:18,880 --> 00:14:22,680 Speaker 2: They're also increasing the ability to drill through additional thrilling rights. 229 00:14:23,000 --> 00:14:25,480 Speaker 2: I find most pernationous about the IRA that it gives 230 00:14:25,480 --> 00:14:29,160 Speaker 2: people the impression that, well, we can relax because you know, 231 00:14:29,640 --> 00:14:32,360 Speaker 2: we basically solve most of the problem and I'm sure 232 00:14:32,360 --> 00:14:33,800 Speaker 2: it will solve the rest of it, and that's not 233 00:14:33,840 --> 00:14:36,720 Speaker 2: true at all. So to me, this is sort of 234 00:14:36,760 --> 00:14:39,120 Speaker 2: like government greenwashing, saying oh no, we took care of 235 00:14:39,120 --> 00:14:40,840 Speaker 2: this problem. No, you didn't take care of it. 236 00:14:41,720 --> 00:14:45,440 Speaker 5: There's a lot of politicians and political reporters too that 237 00:14:45,600 --> 00:14:50,080 Speaker 5: don't understand that climate policy doesn't work quite the way 238 00:14:50,160 --> 00:14:53,080 Speaker 5: other policies do, or a compromise is a big win. 239 00:14:54,720 --> 00:14:58,080 Speaker 4: I think it's important not to paper over the problems 240 00:14:58,080 --> 00:15:02,200 Speaker 4: that you just mentioned. Capture and storage is a good one. 241 00:15:02,400 --> 00:15:05,840 Speaker 4: The reason why I think this COP was an abject 242 00:15:05,880 --> 00:15:11,200 Speaker 4: failure is the same as the reason that COP twenty 243 00:15:11,280 --> 00:15:15,000 Speaker 4: six in Glasgow was a failure, and that is a 244 00:15:15,040 --> 00:15:20,320 Speaker 4: failure to establish as a central minimum standard that we 245 00:15:20,480 --> 00:15:25,080 Speaker 4: need to phase out fossil fuels now in Glasgow. In 246 00:15:25,160 --> 00:15:29,280 Speaker 4: the Final Communica there was a sentence or a sentence 247 00:15:29,320 --> 00:15:33,680 Speaker 4: fragment that called upon the parties to phase down coal, 248 00:15:34,200 --> 00:15:37,720 Speaker 4: not other fossil fuels, but coal to the extent that 249 00:15:37,760 --> 00:15:42,480 Speaker 4: the coal was unabated. And this year there was a 250 00:15:42,520 --> 00:15:47,760 Speaker 4: movement led by India and then supported by the United 251 00:15:47,760 --> 00:15:52,480 Speaker 4: States in particular John Kerry, to call for a phase 252 00:15:52,600 --> 00:15:56,240 Speaker 4: down not only of coal but also oil and natural gas. 253 00:15:56,560 --> 00:15:58,960 Speaker 4: But this never made it in it because of the 254 00:15:59,000 --> 00:16:01,880 Speaker 4: opposition of an number of countries. And so this is 255 00:16:01,920 --> 00:16:05,160 Speaker 4: a problem, as Don pointed out, if we continue to 256 00:16:05,360 --> 00:16:10,960 Speaker 4: produce and import and export and distribute and sell fossil fuels. 257 00:16:11,040 --> 00:16:14,080 Speaker 4: They will be used as intended and used as intended 258 00:16:14,320 --> 00:16:18,680 Speaker 4: means the release of considerable quantities of greenhouse gas missions, 259 00:16:18,720 --> 00:16:21,640 Speaker 4: especially CO two, and so that takes us to CCS. 260 00:16:21,760 --> 00:16:25,560 Speaker 4: Carbon capture and storage is not yet established or proven 261 00:16:25,600 --> 00:16:29,480 Speaker 4: at scale in the United States or anywhere else. Nonetheless, 262 00:16:29,920 --> 00:16:34,960 Speaker 4: funding CCS projects were one central feature of the Inflation 263 00:16:35,040 --> 00:16:39,240 Speaker 4: Reduction Act, and so you know, a commitment to funding 264 00:16:39,520 --> 00:16:43,560 Speaker 4: more research and development and deployment of CCS that has 265 00:16:43,680 --> 00:16:46,240 Speaker 4: been decided for better or for worse here in the 266 00:16:46,360 --> 00:16:51,160 Speaker 4: United States. Yes, should not count to eliminate a producer 267 00:16:51,480 --> 00:16:55,800 Speaker 4: obligations with respect to reducing emissions unless it's highly effective, 268 00:16:56,000 --> 00:16:59,760 Speaker 4: and so we will be monitoring and pressing for that. 269 00:17:00,000 --> 00:17:03,760 Speaker 4: For example, if you are admitting fifty percent or more 270 00:17:03,840 --> 00:17:06,400 Speaker 4: of the emissions that you otherwise would admit, well, then 271 00:17:06,440 --> 00:17:10,560 Speaker 4: that is no solution. We need to essentially phase out 272 00:17:10,600 --> 00:17:14,760 Speaker 4: all emissions and remove a share of the excess if 273 00:17:14,800 --> 00:17:18,439 Speaker 4: we are to have a prayer of protecting and restoring 274 00:17:18,480 --> 00:17:22,399 Speaker 4: a viable climate for our children and future generations. 275 00:17:22,760 --> 00:17:25,600 Speaker 5: Yeah, okay, I'm going to let you describe this lawsuit. 276 00:17:25,640 --> 00:17:32,400 Speaker 4: Now, so EPA rejected the petition on several grounds, some 277 00:17:32,480 --> 00:17:36,080 Speaker 4: of which were quite surprising, the most surprising of which 278 00:17:36,240 --> 00:17:39,360 Speaker 4: is that the EPA said that it was doing enough 279 00:17:39,400 --> 00:17:44,119 Speaker 4: already with respect to the IRA and with respect to 280 00:17:44,160 --> 00:17:47,280 Speaker 4: other rules that it had already enacted in rules that 281 00:17:47,320 --> 00:17:51,159 Speaker 4: it was planning to enact to meet the President's goals 282 00:17:51,240 --> 00:17:53,760 Speaker 4: in the reducing emissions, and they named a number of 283 00:17:53,840 --> 00:17:58,600 Speaker 4: those rules. They only provided a quantitative assessment of emissions reductions, however, 284 00:17:58,720 --> 00:18:03,240 Speaker 4: from one of the measures, that is the Inflation Reduction Act, 285 00:18:03,280 --> 00:18:06,480 Speaker 4: and in fact that one shows only a small, real 286 00:18:06,560 --> 00:18:10,760 Speaker 4: but a small reduction from what otherwise was to occur 287 00:18:11,200 --> 00:18:15,160 Speaker 4: without the IRA. They provided no spreadsheet that showed that, 288 00:18:15,280 --> 00:18:18,280 Speaker 4: you know, you'll get seventeen percent from the IRA here, 289 00:18:18,720 --> 00:18:22,560 Speaker 4: and you'll get you know, x percent from new tailpipe 290 00:18:22,600 --> 00:18:26,240 Speaker 4: emissions here, and all that adds up to one hundred percent. No, 291 00:18:26,359 --> 00:18:29,520 Speaker 4: they didn't provide anything like that. So that is one 292 00:18:29,520 --> 00:18:33,879 Speaker 4: of the basis of our lawsuit that they not only 293 00:18:33,920 --> 00:18:37,600 Speaker 4: did it fail to prove what they asserted, they didn't 294 00:18:37,600 --> 00:18:41,560 Speaker 4: even attempt to make any such showing. And furthermore, that's 295 00:18:41,600 --> 00:18:44,439 Speaker 4: not even the standard that's relevant under the law. The 296 00:18:44,480 --> 00:18:47,560 Speaker 4: standard under the Toxic Substance Control Act is not that 297 00:18:47,600 --> 00:18:50,560 Speaker 4: you need to reduce the chemicals to the point that 298 00:18:50,800 --> 00:18:55,639 Speaker 4: any particular ministration has indicated it seeks to do. You 299 00:18:55,720 --> 00:19:00,040 Speaker 4: need to act to confront the unreasonable risk until the 300 00:19:00,080 --> 00:19:03,320 Speaker 4: point that you've eliminated that unreasonable risk, and that is 301 00:19:03,359 --> 00:19:07,440 Speaker 4: a much more stringent standard. In any event, we sued 302 00:19:07,680 --> 00:19:11,239 Speaker 4: twelve asking the Court in the District of Oregon for 303 00:19:11,400 --> 00:19:16,439 Speaker 4: Eugene to itself determine that greenhouse gas emissions and fossil 304 00:19:16,440 --> 00:19:19,440 Speaker 4: fuels present an unreasonable risk of injury to health of 305 00:19:19,520 --> 00:19:24,800 Speaker 4: the environment, and therefore, on that basis to instruct the 306 00:19:24,880 --> 00:19:27,439 Speaker 4: Environmental Protection Aidency to open up the rule making that 307 00:19:27,640 --> 00:19:31,480 Speaker 4: we requested in the petition, that is, the remedy that 308 00:19:31,720 --> 00:19:35,159 Speaker 4: Congress provided for in Section twenty one of the Toxic 309 00:19:35,200 --> 00:19:39,040 Speaker 4: Substances Control Act. And the Court is supposed to take 310 00:19:39,440 --> 00:19:45,480 Speaker 4: its own fresh look at the relevant facts. Do carbon dioxide, methane, 311 00:19:45,600 --> 00:19:50,000 Speaker 4: nitros oxide HFCs, and the other greenhouse gases and their 312 00:19:50,040 --> 00:19:53,520 Speaker 4: principal sources fossil fuels, do they present an unreasonable risk 313 00:19:53,600 --> 00:19:56,080 Speaker 4: of injury to health through the environment or not? And 314 00:19:56,160 --> 00:20:00,159 Speaker 4: if they do, then it should compel the Agency to 315 00:20:00,480 --> 00:20:04,080 Speaker 4: undertake a rule making under TOSCA to address that risk. 316 00:20:04,240 --> 00:20:07,240 Speaker 2: Again, what really enraged me is is not only did 317 00:20:07,240 --> 00:20:10,479 Speaker 2: they not provide the information to show that what they 318 00:20:10,520 --> 00:20:12,800 Speaker 2: were doing was actually going to be enough, they asked 319 00:20:12,840 --> 00:20:15,080 Speaker 2: us to provide the information that it wasn't going to 320 00:20:15,119 --> 00:20:17,119 Speaker 2: be enough. They said, you know, in your lawsuit, you 321 00:20:17,160 --> 00:20:19,679 Speaker 2: didn't show that all the things that we're doing and 322 00:20:19,880 --> 00:20:22,480 Speaker 2: we intend to do aren't going to be enough. I mean, 323 00:20:22,520 --> 00:20:25,160 Speaker 2: which just crazy. They're not only asking us to approve 324 00:20:25,200 --> 00:20:27,560 Speaker 2: a negative, they're asking us to read their minds. What 325 00:20:27,600 --> 00:20:30,800 Speaker 2: it boils down to is they said, don't worry about it. 326 00:20:31,240 --> 00:20:34,160 Speaker 2: We've got this handled. And that's the sort of response 327 00:20:34,200 --> 00:20:36,280 Speaker 2: that you give to your spouse when you're standing on 328 00:20:36,320 --> 00:20:38,480 Speaker 2: a stool instead of a step ladder to change your 329 00:20:38,560 --> 00:20:41,720 Speaker 2: light bulb. No, no, I have this under control. This 330 00:20:42,119 --> 00:20:45,000 Speaker 2: is completely safe. It's not what you say. When the 331 00:20:45,000 --> 00:20:47,800 Speaker 2: future of the planet hangs in balance, you've got to 332 00:20:47,800 --> 00:20:50,200 Speaker 2: be pretty damn sure that you do have it under 333 00:20:50,240 --> 00:20:53,439 Speaker 2: control enough to demonstrate how you have it under control. 334 00:20:53,520 --> 00:20:55,120 Speaker 2: And they didn't do that. Mm hmm. 335 00:20:55,440 --> 00:20:58,399 Speaker 5: So now you've filed asume, is there any kind of 336 00:20:58,480 --> 00:21:01,040 Speaker 5: different argument that it's making and what could it compel 337 00:21:01,440 --> 00:21:03,159 Speaker 5: the EPA to do so? 338 00:21:03,880 --> 00:21:07,800 Speaker 4: I mean, another thing that we pointed out was that 339 00:21:08,040 --> 00:21:13,040 Speaker 4: it's not plaintiffs spurred into establish exactly what the rule 340 00:21:13,600 --> 00:21:18,000 Speaker 4: should be. That's the function for the agency. In the 341 00:21:18,080 --> 00:21:22,000 Speaker 4: course of rule making under the statute, they should be 342 00:21:22,040 --> 00:21:25,280 Speaker 4: going out to the public and trying to call the 343 00:21:25,280 --> 00:21:28,680 Speaker 4: best ideas as to how this actually should be done, 344 00:21:28,840 --> 00:21:33,280 Speaker 4: including reaching out to communities around the country. And so, 345 00:21:33,640 --> 00:21:36,000 Speaker 4: had they done what they should have, which is to 346 00:21:36,160 --> 00:21:39,040 Speaker 4: have granted the petition, they should have gone to highly 347 00:21:39,080 --> 00:21:44,800 Speaker 4: impacted communities or communities where there are scientific bodies, where 348 00:21:44,840 --> 00:21:49,080 Speaker 4: people have been thinking through these issues. And you know, 349 00:21:49,119 --> 00:21:51,560 Speaker 4: basically they should have gone out to America to figure 350 00:21:51,600 --> 00:21:54,919 Speaker 4: out how best to proceed. And there's you know, a 351 00:21:54,920 --> 00:21:57,199 Speaker 4: procedure for that. It's in the statute. It's called an 352 00:21:57,200 --> 00:22:00,920 Speaker 4: advanced notice of rule making where they would see input. Well, 353 00:22:00,920 --> 00:22:03,160 Speaker 4: they didn't do that. We, by the way, decided that 354 00:22:03,359 --> 00:22:05,320 Speaker 4: if they're not going to do it, we will do 355 00:22:05,440 --> 00:22:07,879 Speaker 4: it to the extent that we have resources. And so 356 00:22:08,119 --> 00:22:11,280 Speaker 4: on November one, eleven days before we filed the lawsuit, 357 00:22:11,440 --> 00:22:14,679 Speaker 4: we actually held the public hearing in Boulder, Colorado, in 358 00:22:14,760 --> 00:22:18,320 Speaker 4: conjunction with the City of Boulder in city council chambers, 359 00:22:18,520 --> 00:22:21,840 Speaker 4: and twenty experts from the around the world actually testified, 360 00:22:21,880 --> 00:22:24,320 Speaker 4: some in person and some by zoom, and you can 361 00:22:24,359 --> 00:22:27,119 Speaker 4: find the full record of that at Cprclimate dot R. 362 00:22:27,240 --> 00:22:30,560 Speaker 4: We provided that record to the Environmental Protection Agency. That's 363 00:22:30,600 --> 00:22:33,480 Speaker 4: the sort of thing that the agency should be doing 364 00:22:33,680 --> 00:22:36,639 Speaker 4: in any event. We in our petition and in the 365 00:22:36,720 --> 00:22:41,560 Speaker 4: lawsuit both are reserved the right to provide additional input 366 00:22:41,680 --> 00:22:45,760 Speaker 4: to the agency in conjunction with that rulemaking under TOSCA 367 00:22:45,880 --> 00:22:48,960 Speaker 4: or other existing EPA authority, it needs to act so 368 00:22:49,080 --> 00:22:54,040 Speaker 4: as to phase out fossil fuel emissions, particularly greenhouse gas emissions, 369 00:22:54,280 --> 00:22:59,000 Speaker 4: and in addition, they need to ensure the removal of 370 00:22:59,040 --> 00:23:03,440 Speaker 4: a substantial mount of the overburden of atmospheric CO two 371 00:23:03,480 --> 00:23:06,199 Speaker 4: and methae, because unless that is done, we will not 372 00:23:06,280 --> 00:23:09,960 Speaker 4: be able to reverse the present crisis in sufficient time 373 00:23:10,440 --> 00:23:13,479 Speaker 4: to preserve, for example, nature as we've come to know it. 374 00:23:13,520 --> 00:23:17,720 Speaker 4: We need to do both, and the agency has the 375 00:23:17,760 --> 00:23:21,960 Speaker 4: authority to commence that entire project by utilizing the authorities 376 00:23:21,960 --> 00:23:23,520 Speaker 4: that we laid out in the lawsuit. 377 00:23:23,640 --> 00:23:26,359 Speaker 2: Amy, you asked what else was new, and there's a 378 00:23:26,400 --> 00:23:29,439 Speaker 2: couple of things. The IRA is new. It's not in 379 00:23:29,440 --> 00:23:32,600 Speaker 2: the petition because it was passed after we'd filed, so 380 00:23:32,800 --> 00:23:34,919 Speaker 2: we talk about that, and that's sort of brand new. 381 00:23:35,200 --> 00:23:38,160 Speaker 2: The other thing, in twenty fifteen, I did a petition 382 00:23:38,240 --> 00:23:42,080 Speaker 2: EPA under the Toxic Substances Control Act to regulate CO 383 00:23:42,320 --> 00:23:45,719 Speaker 2: two because of ocean acidification. And I did that as 384 00:23:45,760 --> 00:23:47,800 Speaker 2: sort of a workaround because you know, there are a 385 00:23:47,840 --> 00:23:50,600 Speaker 2: lot of screwy climate deniers out there, but nobody could 386 00:23:50,640 --> 00:23:54,080 Speaker 2: really deny the fact that the oceans were actually being cidified. 387 00:23:54,680 --> 00:23:59,120 Speaker 2: And EPA responded to that petition by saying, don't worry, 388 00:23:59,320 --> 00:24:02,560 Speaker 2: we're handling ocean acidification. That was in twenty fifteen. We 389 00:24:02,560 --> 00:24:04,280 Speaker 2: didn't follow a civil suit, and I think one of 390 00:24:04,280 --> 00:24:06,600 Speaker 2: the main reasons was because we thought a judge would 391 00:24:06,600 --> 00:24:09,119 Speaker 2: give difference to the fact that the agency was promising 392 00:24:09,560 --> 00:24:12,120 Speaker 2: that in fact, it was unnecessary for them to regulator 393 00:24:12,240 --> 00:24:16,280 Speaker 2: under TOSCA because trust me, we have it handled. Now. 394 00:24:16,440 --> 00:24:19,000 Speaker 2: This may sound familiar because that's exactly what they said 395 00:24:19,000 --> 00:24:22,320 Speaker 2: this time. So they didn't have a secret plan last time, 396 00:24:22,560 --> 00:24:24,680 Speaker 2: and they don't have a secret plan this time, so 397 00:24:24,840 --> 00:24:26,280 Speaker 2: that's sort of new. 398 00:24:26,400 --> 00:24:30,800 Speaker 4: Also, in their rejection in twenty fifteen of Don's petition, 399 00:24:31,320 --> 00:24:34,400 Speaker 4: they said that the Toxic Substances the Control Act does 400 00:24:34,440 --> 00:24:38,160 Speaker 4: not apply to greenhouse gases because they said greenhouse gases 401 00:24:38,200 --> 00:24:41,760 Speaker 4: like CO two are mere byproducts of other activity. There 402 00:24:41,800 --> 00:24:44,560 Speaker 4: was no support in the statute for that, and in fact, 403 00:24:44,560 --> 00:24:47,720 Speaker 4: that was just plain wrong. One of the nice things 404 00:24:47,760 --> 00:24:50,880 Speaker 4: about their current letter of rejection, however, is that they 405 00:24:50,920 --> 00:24:54,239 Speaker 4: admit that the Toxic Substances Control Act is available to 406 00:24:54,280 --> 00:24:58,600 Speaker 4: control greenhouse gas emissions greenhouse gas polution. So we point 407 00:24:58,640 --> 00:25:02,560 Speaker 4: out in the lawsuit that the Agency admits to that. 408 00:25:02,720 --> 00:25:05,200 Speaker 4: And the other thing that the Agency admits to that 409 00:25:05,240 --> 00:25:08,600 Speaker 4: we pointed out in our complaint is that the scientific 410 00:25:08,840 --> 00:25:11,719 Speaker 4: evidence that we laid out in the petition is of 411 00:25:12,040 --> 00:25:16,880 Speaker 4: sufficient quantity and robustness to have been essentially on par 412 00:25:17,200 --> 00:25:19,399 Speaker 4: with the evidence that they used in two thousand and 413 00:25:19,440 --> 00:25:23,920 Speaker 4: nine to ground the endangerment finding which kicked off the 414 00:25:24,080 --> 00:25:30,880 Speaker 4: agency's restrictions on tailpipe emissions from autos and light trucks. Nonetheless, 415 00:25:31,080 --> 00:25:34,480 Speaker 4: in their letter rejection, they did not decide one way 416 00:25:34,560 --> 00:25:38,200 Speaker 4: or the other whether greenhouse gas emissions present a unreasonable 417 00:25:38,280 --> 00:25:42,000 Speaker 4: risk of injury to health in the environment. They neatly 418 00:25:42,080 --> 00:25:44,280 Speaker 4: avoided that central question, do. 419 00:25:44,200 --> 00:25:47,840 Speaker 5: You think you might see interveners like the American Petroleum 420 00:25:47,840 --> 00:25:51,639 Speaker 5: Institute or the US Chamber, any of these folks that 421 00:25:51,680 --> 00:25:54,280 Speaker 5: have intervened in other climate cases. 422 00:25:54,720 --> 00:25:57,280 Speaker 4: I think that it's a possibility, but I don't want 423 00:25:57,320 --> 00:26:02,080 Speaker 4: to talk about that before it happens. Prepared for all eventualities. 424 00:26:02,240 --> 00:26:05,040 Speaker 4: But you know, the agency does not need their help. 425 00:26:05,200 --> 00:26:09,040 Speaker 4: This is an agency determination and it should be made 426 00:26:09,080 --> 00:26:11,680 Speaker 4: on the question of risk and risk alone. 427 00:26:12,200 --> 00:26:13,800 Speaker 5: That kind of answer is the next thing I was 428 00:26:13,840 --> 00:26:16,000 Speaker 5: going to ask you, which is, to what extent does 429 00:26:16,040 --> 00:26:21,800 Speaker 5: it seem possible that this response from them came in 430 00:26:21,880 --> 00:26:25,639 Speaker 5: the wake of West Virginia versus EPA, And maybe the 431 00:26:25,640 --> 00:26:28,919 Speaker 5: EPA is thinking, oh, if we make a rule on 432 00:26:29,080 --> 00:26:32,480 Speaker 5: greenhouse gases, it's going to end up in the Supreme Court. 433 00:26:32,560 --> 00:26:34,760 Speaker 5: And I wonder if you think that played a role. 434 00:26:35,040 --> 00:26:37,080 Speaker 4: Well, I don't want to speak for the agency on that. 435 00:26:37,359 --> 00:26:40,760 Speaker 4: I think it's possible, although the words West Virginia did 436 00:26:40,800 --> 00:26:44,320 Speaker 4: not appear in their letter of rejection, but I'd like 437 00:26:44,400 --> 00:26:46,639 Speaker 4: to talk to it more generally. A number of the 438 00:26:46,760 --> 00:26:51,480 Speaker 4: rules that the agency is contemplating or maybe contemplating, are 439 00:26:51,520 --> 00:26:55,480 Speaker 4: based on provisions of law that are far less particular 440 00:26:55,920 --> 00:27:01,040 Speaker 4: as to the agency's specific duties than it's Toxic Substances 441 00:27:01,080 --> 00:27:03,720 Speaker 4: Control Act. Like take, for example, the revision of the 442 00:27:04,080 --> 00:27:07,040 Speaker 4: Clean Air Act that was at issue in the West 443 00:27:07,119 --> 00:27:13,200 Speaker 4: Virginia versus EPA case. There, the Obama administration built its 444 00:27:13,520 --> 00:27:18,200 Speaker 4: Clean Power Plan on the basis of a provision that 445 00:27:18,200 --> 00:27:20,520 Speaker 4: that was quite general if you go back and read 446 00:27:20,560 --> 00:27:24,920 Speaker 4: the majority opinion. But here, under specifically Section six of 447 00:27:24,960 --> 00:27:29,640 Speaker 4: the Toxic Substances Control Act, the Agency is required, not permitted, 448 00:27:29,720 --> 00:27:35,240 Speaker 4: but is required to impose requirements to ensure that any 449 00:27:35,320 --> 00:27:39,760 Speaker 4: such unreasonable risk from these chemical substances are eliminated. And so, 450 00:27:40,240 --> 00:27:43,800 Speaker 4: in fact, I think that the West Virginia decision provides 451 00:27:43,840 --> 00:27:48,000 Speaker 4: a very strong argument for action under the Toxic Substances 452 00:27:48,040 --> 00:27:50,960 Speaker 4: Control Act if they want to do anything serious about 453 00:27:51,040 --> 00:27:55,760 Speaker 4: the climate crisis at all. So, if they intend to 454 00:27:55,960 --> 00:28:02,000 Speaker 4: seriously enact a full fledged decarbonization program in the United States, 455 00:28:02,280 --> 00:28:05,160 Speaker 4: then you wanted to be based on a firm legal foundation. 456 00:28:05,560 --> 00:28:08,199 Speaker 4: And that's what we had in mind with respect to 457 00:28:08,200 --> 00:28:11,439 Speaker 4: our petition for the Toxic Substance Control Act. Even before 458 00:28:11,480 --> 00:28:14,640 Speaker 4: the West Virginia decision, we were concerned about this very 459 00:28:14,680 --> 00:28:19,000 Speaker 4: issue because West Virginia did not arise out of whole cloth. 460 00:28:19,119 --> 00:28:22,520 Speaker 4: There have been recurrent efforts by the Supreme Court over 461 00:28:22,560 --> 00:28:26,119 Speaker 4: recent years to cut back EPA authority to get after 462 00:28:26,440 --> 00:28:31,000 Speaker 4: the climate risk, where they were relying on statutes that 463 00:28:31,080 --> 00:28:35,280 Speaker 4: are far more ambiguous on the question than TOSCA. 464 00:28:35,440 --> 00:28:38,400 Speaker 2: Yeah, let me maybe support that a little bit more. 465 00:28:38,400 --> 00:28:41,960 Speaker 2: If you read the West Virginia decision mariority decision, it 466 00:28:42,080 --> 00:28:44,960 Speaker 2: says that EPA is an expert in how the United 467 00:28:45,000 --> 00:28:48,760 Speaker 2: States should produce the synergy because under the law it 468 00:28:48,880 --> 00:28:52,280 Speaker 2: gave folks who burn coal, for example, of the opportunity 469 00:28:52,280 --> 00:28:55,560 Speaker 2: to lessen their emissions by using, for example, green energy 470 00:28:55,600 --> 00:28:58,520 Speaker 2: sources to provide some of the power. And the Court said, rightly, so, 471 00:28:58,640 --> 00:29:00,960 Speaker 2: really the EPA was an expert, and that Department of 472 00:29:01,120 --> 00:29:04,600 Speaker 2: Energy was well, again, now we're talking about chemical safety, 473 00:29:04,720 --> 00:29:08,080 Speaker 2: and EPA is exactly expert in that. It's what they do. 474 00:29:08,200 --> 00:29:12,080 Speaker 2: It's also about risk, and epas experts and risk, so 475 00:29:12,680 --> 00:29:14,960 Speaker 2: EPA is actually expert in this. The other thing is 476 00:29:14,960 --> 00:29:18,560 Speaker 2: that EPA has an internal process that it uses to 477 00:29:18,960 --> 00:29:22,120 Speaker 2: decide whether or not to regulate, and at no point 478 00:29:22,560 --> 00:29:26,800 Speaker 2: in that process does it say are we handling it 479 00:29:26,840 --> 00:29:31,080 Speaker 2: through other means? That comes in later the first part 480 00:29:31,080 --> 00:29:34,360 Speaker 2: of the process is is there a risk, and clearly 481 00:29:34,440 --> 00:29:37,000 Speaker 2: there's a risk. The second part of the process is 482 00:29:37,400 --> 00:29:39,960 Speaker 2: it a significant risk? And there is a significant risk. 483 00:29:40,000 --> 00:29:42,880 Speaker 2: The third part of the processes do we need a 484 00:29:42,920 --> 00:29:45,680 Speaker 2: work group for it because it may be an unreasonable risk? 485 00:29:45,720 --> 00:29:48,640 Speaker 2: And the answer to that is of course, And that's 486 00:29:48,640 --> 00:29:50,680 Speaker 2: what they were supposed to do. They were supposed to 487 00:29:50,800 --> 00:29:53,720 Speaker 2: establish a work group. They weren't supposed to jump to 488 00:29:53,760 --> 00:29:57,040 Speaker 2: the answer and say no, no, we have this handled. Hm. 489 00:29:57,320 --> 00:30:01,040 Speaker 5: That's so interesting. Okay, so what's the next step here? 490 00:30:01,600 --> 00:30:04,760 Speaker 4: Well, we a lot happens before you get to a trial, 491 00:30:04,800 --> 00:30:07,880 Speaker 4: but eventually we're headed to a trial on the question 492 00:30:08,080 --> 00:30:12,160 Speaker 4: these chemicals present an unreasonable risk, and the court needs 493 00:30:12,200 --> 00:30:15,400 Speaker 4: to decide that on the basis of the record that 494 00:30:15,440 --> 00:30:19,720 Speaker 4: we established in court. So there will be experts testifying 495 00:30:19,840 --> 00:30:22,480 Speaker 4: on the question. This is going to be a full 496 00:30:22,560 --> 00:30:25,840 Speaker 4: fledged civil lawsuit over that question, and then if the 497 00:30:26,080 --> 00:30:29,960 Speaker 4: court makes the decision that we think is compelled by 498 00:30:30,160 --> 00:30:33,760 Speaker 4: the reasonable evidence, then we'll be back to the point 499 00:30:33,760 --> 00:30:37,960 Speaker 4: where the agency should be already, which is that the 500 00:30:38,000 --> 00:30:40,400 Speaker 4: agency should be undertaking a rule making. 501 00:30:40,760 --> 00:30:43,479 Speaker 5: The last question I have for both of you is 502 00:30:43,760 --> 00:30:48,240 Speaker 5: just well, two things. One, I'm curious to hear both 503 00:30:48,240 --> 00:30:53,440 Speaker 5: of your opinions on why TOSCA hasn't really been used 504 00:30:53,640 --> 00:30:56,640 Speaker 5: in this way by the agency. John, Like, I remember 505 00:30:56,680 --> 00:30:58,960 Speaker 5: you talking about this petition in twenty fifteen and it 506 00:30:59,000 --> 00:31:02,320 Speaker 5: seemed like such a no, So I'm curious what has 507 00:31:02,440 --> 00:31:06,200 Speaker 5: kept them from using it. And then the other is 508 00:31:06,560 --> 00:31:11,240 Speaker 5: just what you would say two people who are like, well, 509 00:31:11,840 --> 00:31:15,720 Speaker 5: we don't have time for a lawsuit. We need to 510 00:31:15,720 --> 00:31:18,880 Speaker 5: be tackling this issue now. And why is the EPA 511 00:31:19,000 --> 00:31:21,560 Speaker 5: dragging their feed so much? Is there any other sort 512 00:31:21,560 --> 00:31:22,480 Speaker 5: of way to push them? 513 00:31:22,760 --> 00:31:25,080 Speaker 2: First of all, as to why they haven't done it before, 514 00:31:25,240 --> 00:31:28,200 Speaker 2: it's because they were frightened. They got hammered really badly 515 00:31:28,320 --> 00:31:30,520 Speaker 2: on the asbestos case, and I thought they had a 516 00:31:30,560 --> 00:31:34,080 Speaker 2: slam dunk there, but they didn't. And it was because 517 00:31:34,280 --> 00:31:36,400 Speaker 2: the courts felt they didn't do their due diligence and 518 00:31:36,480 --> 00:31:39,680 Speaker 2: looking at other alternatives. They didn't look at costs and 519 00:31:39,720 --> 00:31:42,200 Speaker 2: benefits properly, et cetera, et cetera. Well, you know what, 520 00:31:42,360 --> 00:31:45,880 Speaker 2: Congress got rid of that requirement in the twenty sixteen amendments, 521 00:31:46,120 --> 00:31:49,520 Speaker 2: So I really don't know why the Trump administration didn't 522 00:31:49,600 --> 00:31:52,000 Speaker 2: jump on it. Then it's quite puzzling. The other thing 523 00:31:52,120 --> 00:31:55,120 Speaker 2: is is that, yeah, lawsuit is going to take a 524 00:31:55,160 --> 00:31:59,560 Speaker 2: long time. And the other hand, there's no other alternative. 525 00:32:00,280 --> 00:32:03,520 Speaker 2: We can't march into EPA and hold guns to their heads. 526 00:32:03,840 --> 00:32:05,640 Speaker 2: You know, they're going to do what they're going to do, 527 00:32:05,840 --> 00:32:08,600 Speaker 2: but we have to compel them. They could, in fact, 528 00:32:08,640 --> 00:32:11,000 Speaker 2: because of fear of the lawsuit, or because of a 529 00:32:11,080 --> 00:32:13,960 Speaker 2: ground swell of support for the lawsuit, decide that they 530 00:32:13,960 --> 00:32:16,280 Speaker 2: made a mistake and maybe they ought to revisit this, 531 00:32:16,400 --> 00:32:18,960 Speaker 2: and maybe they would open up a work group and 532 00:32:18,960 --> 00:32:20,840 Speaker 2: they ought to hold some more public hearings and find 533 00:32:20,840 --> 00:32:23,960 Speaker 2: out what people really think. So that's basically what I 534 00:32:24,000 --> 00:32:25,880 Speaker 2: have to say that, as far as I know, I 535 00:32:25,880 --> 00:32:28,640 Speaker 2: can't think of any other mechanism because they still need 536 00:32:28,640 --> 00:32:31,640 Speaker 2: a legal mechanism to deal with the fossil fuel companies, 537 00:32:31,680 --> 00:32:34,240 Speaker 2: to deal with emissions, and this is the only one 538 00:32:34,240 --> 00:32:37,120 Speaker 2: I see. It's what it was designed to do. TOSCO 539 00:32:37,280 --> 00:32:41,840 Speaker 2: was designed to fill in when other authorities weren't working. 540 00:32:42,280 --> 00:32:45,480 Speaker 2: And if there was ever a situation where other authorities 541 00:32:45,480 --> 00:32:47,200 Speaker 2: weren't working, it's climate change. 542 00:32:47,560 --> 00:32:51,520 Speaker 4: Yeah, there's no question, but that we know what needs 543 00:32:51,520 --> 00:32:54,840 Speaker 4: to be done, and so does the agency. So I mean, 544 00:32:54,880 --> 00:32:57,360 Speaker 4: it is embarrassing to have to point this out, but 545 00:32:57,680 --> 00:33:01,720 Speaker 4: to have hid behind the type of that they are 546 00:33:01,720 --> 00:33:06,200 Speaker 4: doing enough already when they know that that is not true. 547 00:33:06,360 --> 00:33:11,120 Speaker 4: That's not a position that the United States and the 548 00:33:11,160 --> 00:33:16,440 Speaker 4: Agency need to retain. The Agency has a track record 549 00:33:16,560 --> 00:33:21,240 Speaker 4: to its credit of sometimes reconsidering past preliminary decisions or 550 00:33:21,280 --> 00:33:25,840 Speaker 4: past decisions in the light of new evidence and new information. 551 00:33:25,960 --> 00:33:29,960 Speaker 4: And here there is new information they have the standard wrong. 552 00:33:30,240 --> 00:33:34,000 Speaker 4: And the United States now has a new strong position 553 00:33:34,520 --> 00:33:38,320 Speaker 4: with respect to the need to do something serious about 554 00:33:38,440 --> 00:33:43,400 Speaker 4: fossil fuels and greenhouse gas emissions. And there's the information 555 00:33:44,040 --> 00:33:47,720 Speaker 4: that the international system under the Unit Nations FREMEW or 556 00:33:47,760 --> 00:33:50,719 Speaker 4: Convention on Climate Chain is going to be ineffective on 557 00:33:50,760 --> 00:33:55,280 Speaker 4: these central questions unless some major nation or group of 558 00:33:55,360 --> 00:33:58,560 Speaker 4: nations takes leadership. The combination, for example, of the United 559 00:33:58,600 --> 00:34:01,920 Speaker 4: States and the European Union could provide just that leadership, 560 00:34:01,920 --> 00:34:03,840 Speaker 4: but it needs to be more than words. And so 561 00:34:04,040 --> 00:34:07,880 Speaker 4: here the United States could match its rhetoric by an 562 00:34:07,920 --> 00:34:12,040 Speaker 4: example by making itself an example of good behavior to 563 00:34:12,239 --> 00:34:13,600 Speaker 4: seriously address the crisis. 564 00:34:13,719 --> 00:34:17,560 Speaker 5: I understand why fossil fuel companies don't want to do 565 00:34:17,719 --> 00:34:22,680 Speaker 5: anything about climate change. But I don't understand why the 566 00:34:23,480 --> 00:34:28,600 Speaker 5: EPA would be citing the idea of doing something. 567 00:34:27,719 --> 00:34:30,840 Speaker 4: About it, I should say. On the other hand, however, 568 00:34:31,080 --> 00:34:33,880 Speaker 4: the statute was used for just this purpose, to commence 569 00:34:33,920 --> 00:34:39,040 Speaker 4: the phase out of florocarbons CFC's, and under a rule 570 00:34:39,520 --> 00:34:43,520 Speaker 4: promulgated by the agency, I think, even without a citizen's petition, 571 00:34:43,640 --> 00:34:47,120 Speaker 4: but I'm not sure about that where they so yeah, 572 00:34:47,160 --> 00:34:50,080 Speaker 4: so there you go, don I mean, back in nineteen 573 00:34:50,120 --> 00:34:52,920 Speaker 4: seventy eight, the agency was able to act even without 574 00:34:52,960 --> 00:34:56,040 Speaker 4: a citizens group coming forward, and they did it for 575 00:34:56,120 --> 00:34:59,000 Speaker 4: two reasons. The principal reason that they cited in their 576 00:34:59,080 --> 00:35:01,799 Speaker 4: draft rule and their fin rule was to address a 577 00:35:01,840 --> 00:35:06,439 Speaker 4: potent ozone depleting chemical CFCs, because there was concern they're 578 00:35:06,480 --> 00:35:09,200 Speaker 4: still concerned, but now we've started to address it substantially 579 00:35:09,480 --> 00:35:12,000 Speaker 4: that the ozone layer was thinning and was going to 580 00:35:12,200 --> 00:35:16,319 Speaker 4: lead to serious environmental and public health consequences. But number two, 581 00:35:16,520 --> 00:35:20,319 Speaker 4: they said in their rule that they were doing this 582 00:35:20,440 --> 00:35:25,319 Speaker 4: because CFCs are a potent global warming forcing agent. And 583 00:35:25,400 --> 00:35:29,520 Speaker 4: so there you go. You have a administrative precedent using 584 00:35:29,560 --> 00:35:34,719 Speaker 4: the same statute against a greenhouse gas that is, you know, 585 00:35:34,920 --> 00:35:39,439 Speaker 4: distributed worldwide, and so it's it's a tremendous precedent from 586 00:35:39,440 --> 00:35:40,959 Speaker 4: which the agency can build. 587 00:35:41,840 --> 00:35:44,080 Speaker 2: I have a lot of friends at DPA, and hopefully 588 00:35:44,120 --> 00:35:46,359 Speaker 2: when this is all over, I'll still have a lot 589 00:35:46,360 --> 00:35:49,239 Speaker 2: of friends at EPA. But the thing Touring Member is 590 00:35:49,239 --> 00:35:52,000 Speaker 2: is that EPA isn't a monelith. I mean, there's lots 591 00:35:52,040 --> 00:35:56,120 Speaker 2: of different patents there. And I would bet that ninety 592 00:35:56,160 --> 00:36:00,000 Speaker 2: percent of the employees there in staffers because those guys 593 00:36:00,200 --> 00:36:03,880 Speaker 2: they're working at EPA, most of them because they're environmentalists, 594 00:36:04,120 --> 00:36:07,839 Speaker 2: would love to do this. But I think this was 595 00:36:08,800 --> 00:36:13,520 Speaker 2: a political decision that we have the IRA we can 596 00:36:13,560 --> 00:36:17,399 Speaker 2: ease off a little bit now. And I believe that 597 00:36:17,440 --> 00:36:19,920 Speaker 2: we weren't given a fair trial in the agency, and 598 00:36:19,960 --> 00:36:24,200 Speaker 2: the decision was made beforehand that we need to find 599 00:36:24,200 --> 00:36:26,480 Speaker 2: a way to shut this down. And they found a 600 00:36:26,480 --> 00:36:28,879 Speaker 2: bunch of reasons. And that's why the reasons aren't very good, 601 00:36:28,920 --> 00:36:30,240 Speaker 2: because there are no good reasons. 602 00:36:30,400 --> 00:36:33,200 Speaker 4: It's one other thing that's worthy of mention because they 603 00:36:33,320 --> 00:36:36,000 Speaker 4: mentioned it in their letter rejection and they say that 604 00:36:36,040 --> 00:36:38,920 Speaker 4: this is not one of our major reasons. But we 605 00:36:38,960 --> 00:36:42,080 Speaker 4: also want to say that were severely underfunded. 606 00:36:42,719 --> 00:36:45,040 Speaker 5: I was just gonna say that I've heard this about 607 00:36:45,080 --> 00:36:48,120 Speaker 5: the methane rule too, and I know Senator of White 608 00:36:48,160 --> 00:36:52,040 Speaker 5: House has already brought this up, like, Hey, this new 609 00:36:52,080 --> 00:36:55,840 Speaker 5: and improved and much more stringent rule is great, but 610 00:36:55,920 --> 00:36:57,839 Speaker 5: it's not going to mean anything if we don't have 611 00:36:57,880 --> 00:37:01,799 Speaker 5: the resources to actually for it. And I think that 612 00:37:01,800 --> 00:37:04,680 Speaker 5: that is kind of a recurring thing that you do. Right. 613 00:37:04,680 --> 00:37:08,640 Speaker 5: They need to be funded and staffed enough to actually 614 00:37:08,760 --> 00:37:09,800 Speaker 5: enforce these laws. 615 00:37:10,200 --> 00:37:13,960 Speaker 2: Every time there's a new administration, they scramble everything they do. 616 00:37:14,280 --> 00:37:16,520 Speaker 2: They basically says, all right, these are our new priorities. 617 00:37:16,840 --> 00:37:19,719 Speaker 2: You guys aren't doing this. You guys are now doing that, 618 00:37:20,239 --> 00:37:22,880 Speaker 2: and they spread around resources and you've got to triage this. 619 00:37:22,960 --> 00:37:26,000 Speaker 2: You have to say, what's the biggest risk facing the 620 00:37:26,040 --> 00:37:27,040 Speaker 2: American people at. 621 00:37:26,920 --> 00:37:27,560 Speaker 3: A globe right now? 622 00:37:27,600 --> 00:37:29,960 Speaker 2: And it's climate change, And you know, we're going to 623 00:37:30,120 --> 00:37:32,520 Speaker 2: just stop doing some of these other things even though 624 00:37:32,520 --> 00:37:35,919 Speaker 2: they're mandated by law, because this is mandated by law too, 625 00:37:36,160 --> 00:37:37,759 Speaker 2: and it's way more important. 626 00:37:37,880 --> 00:37:40,759 Speaker 4: Yeah, And what they have been doing and what they're 627 00:37:40,760 --> 00:37:44,680 Speaker 4: planning to do pales and importance with this overriding question. 628 00:37:44,920 --> 00:37:47,279 Speaker 4: And so you know, if it's necessary for them to 629 00:37:47,320 --> 00:37:51,040 Speaker 4: get additional resources to undertake this rulemaking, which I'm not 630 00:37:51,120 --> 00:37:53,920 Speaker 4: quite sure it is, but if it is necessary, well, 631 00:37:53,960 --> 00:37:58,120 Speaker 4: then they should seek a budget augmentation for the purpose 632 00:37:58,440 --> 00:38:01,560 Speaker 4: or reallocation for the purpose. We can't let something as 633 00:38:01,600 --> 00:38:06,040 Speaker 4: parochial or as basic as whether the agency has the 634 00:38:06,120 --> 00:38:11,000 Speaker 4: resources to do in adequate rulemaking. Particularly this problem has 635 00:38:11,080 --> 00:38:14,279 Speaker 4: been studied so much by the US government and by 636 00:38:14,400 --> 00:38:19,320 Speaker 4: other agencies and by private organizations, and every single national 637 00:38:19,360 --> 00:38:21,920 Speaker 4: Academy of science is on the planet. You know, we 638 00:38:22,280 --> 00:38:25,440 Speaker 4: can't let that impair us from acting well. 639 00:38:25,480 --> 00:38:27,600 Speaker 5: And also, isn't it true that getting on top of 640 00:38:27,640 --> 00:38:31,080 Speaker 5: this would also get on top of so many of 641 00:38:31,120 --> 00:38:35,680 Speaker 5: the other airpoints that APA has to deal with too, right, 642 00:38:35,800 --> 00:38:39,120 Speaker 5: I mean, it's not like these are mutually exclusive things. 643 00:38:39,560 --> 00:38:42,600 Speaker 4: No, And we point that out in our Magnus opus, 644 00:38:42,640 --> 00:38:45,319 Speaker 4: the part two of our petition that you know, just 645 00:38:45,360 --> 00:38:49,919 Speaker 4: from particulates alone, it's a substantial threat to public health. 646 00:38:49,960 --> 00:38:53,520 Speaker 4: I mean, we're already overdue. We will be stemming far 647 00:38:53,600 --> 00:38:57,320 Speaker 4: worse problems with respect to global warming and ocean a certification, 648 00:38:57,400 --> 00:38:59,960 Speaker 4: the potential collapse of the food web, the you know, 649 00:39:00,200 --> 00:39:04,960 Speaker 4: tremendous imposition on human and natural systems, including agriculture, and 650 00:39:05,440 --> 00:39:10,040 Speaker 4: the potential loss of major cities along the coastlines, including 651 00:39:10,080 --> 00:39:12,279 Speaker 4: in the United States. So yeah, we're in it for 652 00:39:12,320 --> 00:39:16,120 Speaker 4: a world of hurt unless we get serious, and this 653 00:39:16,360 --> 00:39:20,160 Speaker 4: is the most straightforward way we know of doing it. 654 00:39:26,600 --> 00:39:28,920 Speaker 1: That's it for this time. I'll be posting updates on 655 00:39:28,960 --> 00:39:32,280 Speaker 1: these cases as they happen to our website at Drilled 656 00:39:32,320 --> 00:39:36,040 Speaker 1: podcast dot com and possibly to the podcast feed as well. 657 00:39:36,239 --> 00:39:39,800 Speaker 1: Make sure that you're subscribed to our newsletter at Drilled 658 00:39:39,800 --> 00:39:43,000 Speaker 1: podcast dot com to get breaking news as well as 659 00:39:43,040 --> 00:39:46,839 Speaker 1: our weekly roundup of climate coverage. Thanks for listening, and 660 00:39:46,920 --> 00:40:01,760 Speaker 1: we'll see you next time. Drilled is an original Critical 661 00:40:01,800 --> 00:40:06,720 Speaker 1: Frequency production. Our producer is Sarah Ventry. Sound design, mixing 662 00:40:06,800 --> 00:40:09,880 Speaker 1: and mastering are by Peter Duff, who also wrote our 663 00:40:09,920 --> 00:40:13,839 Speaker 1: original score. Our First Amendment attorney is James Wheaton at 664 00:40:13,880 --> 00:40:17,960 Speaker 1: the First Amendment Project, and the show is reported, written 665 00:40:18,000 --> 00:40:20,319 Speaker 1: and hosted by me Amy Westervelt.