WEBVTT - First Climate RICO Filed + James Hansen Sues EPA 0:00:21.040 --> 0:00:25.200 November was a really big month for climate lawsuits. Earlier 0:00:25.239 --> 0:00:27.400 in the month, the folks who had been petitioning the 0:00:27.440 --> 0:00:31.640 EPA to use the Toxic Substances Control Act or TOSCA 0:00:31.680 --> 0:00:35.760 to regulate greenhouse gas emissions filed a civil suit to 0:00:35.920 --> 0:00:40.000 compel them to do so. Here's longtime EPA scientist Don 0:00:40.080 --> 0:00:41.840 Viviani on why. 0:00:42.120 --> 0:00:44.239 I could never understand when I was at the agency 0:00:44.360 --> 0:00:49.480 why they would meet a petition to regulate greenhouse guests 0:00:49.560 --> 0:00:53.320 is under TOSCO. It's maddening that with a petition they're 0:00:53.400 --> 0:00:56.400 unwilling to do their job. Tosc is a chemical safety 0:00:56.440 --> 0:01:00.040 Act supposed to keep us safe from unsafe chemicals. O 0:01:00.160 --> 0:01:04.080 two and methane are the two most unsafe chemicals that 0:01:04.120 --> 0:01:05.880 mankind has ever been presented with. 0:01:06.640 --> 0:01:09.600 We'll hear more from Viviani as well as Dan Gelbern, 0:01:09.680 --> 0:01:12.720 the lead attorney on that case, in a minute. But first, 0:01:13.160 --> 0:01:17.720 in other major climate litigation news, the first ever climate 0:01:17.880 --> 0:01:22.160 RICO case has now been filed. The Racketeer Influenced and 0:01:22.280 --> 0:01:26.319 Corrupt Organizations Act was passed in the nineteen seventies to 0:01:26.319 --> 0:01:28.640 give the government a way to deal with organized crime 0:01:28.959 --> 0:01:31.920 the mafia. In the eighties, the Supreme Court upheld the 0:01:32.000 --> 0:01:34.640 use of the law in civil cases as well, which 0:01:34.680 --> 0:01:39.240 can be brought against individuals, organizations, or corporations. If you 0:01:39.319 --> 0:01:41.880 listened to our season on the Chevron Ecuador case, you 0:01:41.959 --> 0:01:46.440 might remember that Chevron successfully sued US attorney Stephen Donziger 0:01:46.520 --> 0:01:49.600 under Rico. This time, the complaint flows the other way, 0:01:49.800 --> 0:01:53.520 alleging that the global oil majors, their trade associations, and 0:01:53.560 --> 0:01:57.400 a network of dark money funded think tanks and operatives 0:01:57.760 --> 0:02:01.160 where part of an organized conspiracy to mislead the public 0:02:01.240 --> 0:02:05.360 on climate change, resulting in a multitude of damages. The 0:02:05.360 --> 0:02:09.160 plaintiffs in this case are sixteen municipalities in the Commonwealth 0:02:09.240 --> 0:02:13.160 of Puerto Rico that suffered tremendous damage when Hurricane Maria 0:02:13.280 --> 0:02:16.320 hit and are steering down the barrel of more intense 0:02:16.400 --> 0:02:20.280 and more frequent hurricanes for the foreseeable future, as we 0:02:20.360 --> 0:02:24.600 saw recently with Hurricane Fiona. I started following this case 0:02:24.639 --> 0:02:27.440 three years ago and went to Puerto Rico in twenty 0:02:27.520 --> 0:02:31.840 nineteen with Attorney Melissa Kay Sims. Simms is senior counsel 0:02:31.960 --> 0:02:36.520 for the plaintiff's law firm Millburg, which also handled several 0:02:36.600 --> 0:02:40.840 of the opioid Rico cases. In fact, Sims originally went 0:02:40.919 --> 0:02:43.920 to Puerto Rico while working on one of those cases. 0:02:45.280 --> 0:02:49.240 The interesting part about the opioid litigation is that really 0:02:49.280 --> 0:02:53.120 it all started in Puerto Rico. Yeah, we represent most 0:02:53.160 --> 0:02:55.799 of the municipalities. We follow the class action for the 0:02:55.880 --> 0:02:59.400 municipalities in Puerto Rico early on, and we filed racketeering 0:02:59.480 --> 0:03:02.160 out one of the first cases that filed racketeering in 0:03:02.200 --> 0:03:05.280 federal court. And what we found out was, you know, 0:03:05.400 --> 0:03:07.320 Puerto Rico has been kind of the guinea pig for 0:03:07.520 --> 0:03:09.000 big Pharma. 0:03:09.120 --> 0:03:11.800 One of her first trips there was about a year 0:03:11.880 --> 0:03:15.200 after Hurricane Maria, and she was shocked by how much 0:03:15.240 --> 0:03:18.239 devastation there still was. I was shocked by how much 0:03:18.320 --> 0:03:22.160 there was even in twenty nineteen, and there's still things 0:03:22.240 --> 0:03:25.680 that haven't been fixed, or things that were fixed and 0:03:25.720 --> 0:03:29.560 that got broken again when Fiona hit. While she was 0:03:29.600 --> 0:03:32.799 traveling back and forth to Puerto Rico, Sim saw various 0:03:32.880 --> 0:03:37.400 articles in newspapers talking about how hurricanes were becoming more intense, 0:03:37.800 --> 0:03:41.160 storm surge was becoming more damaging thanks to climate change, 0:03:41.360 --> 0:03:45.200 and importantly, how several of these outcomes had been predicted 0:03:45.280 --> 0:03:48.920 decades earlier by climate scientists. Who were working for oil 0:03:48.960 --> 0:03:51.480 companies at the time. A light bulb went off. 0:03:52.360 --> 0:03:55.120 If it's proven that you that you cause it, and 0:03:55.160 --> 0:03:58.640 if it's proven that you, you know, conspired with somebody 0:03:58.640 --> 0:04:02.800 else to profit off that loss to the municipality, you 0:04:02.800 --> 0:04:03.480 should have paper. 0:04:05.120 --> 0:04:08.920 Last week, Milberg, the firm that SIMS works with, filed 0:04:08.920 --> 0:04:13.440 a reco case on behalf of sixteen Puerto Rican municipalities 0:04:13.560 --> 0:04:17.800 against seven oil companies, three coal companies, and hundreds of 0:04:18.000 --> 0:04:25.479 organizations and operatives alleging consumer fraud, racketeering, antitrust, fraudulent misrepresentation, 0:04:26.240 --> 0:04:33.920 negligent misrepresentation, negligent fraudulent concealment, conspiracy to defraud, products, liability, 0:04:34.279 --> 0:04:38.320 strict liability, failure to warn, negligent failure to warn, and 0:04:38.640 --> 0:04:42.680 unjust enrichment as a result of the devastating storms of 0:04:42.720 --> 0:04:47.000 September twenty seventeen and the aftermath of those storms, which 0:04:47.040 --> 0:04:51.080 occurred as a result of the defendants acts and omissions. 0:04:51.680 --> 0:04:55.960 It's a whopping case. The complaint itself is thousands of pages, 0:04:56.080 --> 0:04:59.080 with lots and lots of exhibits. I'll be bringing you 0:04:59.200 --> 0:05:01.479 a whole lot more this story in the weeks and 0:05:01.560 --> 0:05:05.480 months ahead. But having spoken to a few legal analysts 0:05:05.520 --> 0:05:09.800 about it already, I can say it is a big deal. 0:05:10.480 --> 0:05:12.200 After the break, we're going to talk about the other 0:05:12.240 --> 0:05:16.040 climate case I mentioned up top. NASA climate scientist James Hanson, 0:05:16.200 --> 0:05:19.400 Carbon Major's Report author Richard Heady, and a handful of 0:05:19.440 --> 0:05:22.320 other folks have sued the EPA to compel them to 0:05:22.440 --> 0:05:27.400 regulate greenhouse gas emissions under the Toxic Substances Control Act. 0:05:27.760 --> 0:05:42.640 I'm Amie Westervelt, and this is drilled earlier this year, 0:05:42.760 --> 0:05:47.080 doctor James Hanson, Richard Heaty, Don Viviani, who you heard 0:05:47.080 --> 0:05:50.799 from up top, and climate psychologist Lee's Van Susterron filed 0:05:50.920 --> 0:05:54.240 a petition to the EPA asking them to make a 0:05:54.279 --> 0:06:00.000 determination around a pretty straightforward question, do greenhouse gases post 0:06:00.120 --> 0:06:04.280 was an unreasonable risk to environmental and human health? If so, 0:06:04.640 --> 0:06:08.720 they would fall under the Toxic Substances Control Act, or TOSCA, 0:06:08.920 --> 0:06:12.680 which explicitly gives the EPA the right to create rules 0:06:12.920 --> 0:06:16.760 that would remove that harm. In September, the EPA rejected 0:06:16.760 --> 0:06:20.360 that petition, and in early November the petitioners took their 0:06:20.440 --> 0:06:23.839 case to court. I talked to Attorney Dan Gilburn of 0:06:23.880 --> 0:06:28.839 the Climate Protection and Restoration Initiative and Viviani shortly after 0:06:28.880 --> 0:06:29.920 the case was filed. 0:06:31.160 --> 0:06:33.680 My name is Don Viviani. I was a scientist at 0:06:33.760 --> 0:06:36.400 EPA for about thirty four to thirty five years, and 0:06:36.480 --> 0:06:39.680 at one point in the nineties I was director of 0:06:39.720 --> 0:06:42.960 the Climate Policy Assessment Division. So a lot of what's 0:06:43.000 --> 0:06:46.240 going on now is my fault, and I apologize for that, 0:06:46.279 --> 0:06:48.640 but it was a long time ago, and I also 0:06:49.080 --> 0:06:52.400 had some other divisions that were with regulations, and I 0:06:52.440 --> 0:06:54.320 was I was chairman of the Great Lakes and Water 0:06:54.360 --> 0:06:57.080 Quality Commission Toxic Substice Commission, so I know a little 0:06:57.080 --> 0:06:59.360 bit about all of the things that are here. 0:06:59.560 --> 0:07:03.640 My name is Dan Galpern. I am the founder, executive 0:07:03.680 --> 0:07:08.200 director and General counsel of Climate Protection and Restoration Initiative, 0:07:08.480 --> 0:07:13.360 and for about the last thirteen years and still I 0:07:13.480 --> 0:07:18.880 serve as the attorney and policy advisor to the well 0:07:18.880 --> 0:07:23.280 known climate scientist James Hansen. And I met John probably 0:07:23.360 --> 0:07:26.400 about seven years ago when we were talking of a 0:07:26.440 --> 0:07:30.640 similar petition to the Environmental Protection Agency that he actually filed. 0:07:31.040 --> 0:07:35.440 So under the Toxic Substances Control Act, the Environmental Protection 0:07:35.520 --> 0:07:40.760 Agency is to impose certain restrictions on a chemical substance 0:07:40.880 --> 0:07:44.720 or mixture where the agency determines that that chemical substance 0:07:44.800 --> 0:07:48.400 or mixture presents an unreasonable risk of injury to health 0:07:48.480 --> 0:07:51.320 or the environment, And the law was established to protect 0:07:51.360 --> 0:07:57.920 the public and the natural world from the increasing intrusion 0:07:58.040 --> 0:08:05.200 into the environment of chemical substances from our increasingly industrial society. 0:08:05.440 --> 0:08:11.080 And so our petition established I think in considerable detail 0:08:11.320 --> 0:08:15.840 that greenhouse gases and fossil fuels, which are the primary 0:08:15.880 --> 0:08:20.400 sources of the overconcentration of greenhouse gases in the atmosphere now, 0:08:20.480 --> 0:08:23.800 especially carbon dioxide and methane, and some of the other 0:08:24.240 --> 0:08:28.560 greenhouse gases as well, clearly impose an unreasonable risk of 0:08:28.640 --> 0:08:31.480 injury to help them the environment. In fact, President Biden, 0:08:31.640 --> 0:08:34.640 both before he became president as candidate and then also 0:08:34.760 --> 0:08:38.520 as president, has referred to the climate crisis that's created 0:08:38.559 --> 0:08:41.880 by the over concentration of these chemicals as an existential 0:08:41.960 --> 0:08:44.559 threat to our nation and to the planet. So it's 0:08:44.559 --> 0:08:47.880 well beyond an unreasonable risk, and there are alternative which 0:08:48.040 --> 0:08:52.640 renders the risk doubly unreasonable. So our petition called upon 0:08:52.679 --> 0:08:56.560 the agency to undertake a rule making to eliminate that 0:08:56.679 --> 0:09:00.320 unreasonable risk, and in particular, we said it should act 0:09:00.400 --> 0:09:04.240 under the statute to phase out greenhouse gas emissions and 0:09:04.600 --> 0:09:07.520 fossil fuels. And the reason for that, as we explain 0:09:07.600 --> 0:09:11.080 in the petition, is that current global warming and current 0:09:11.440 --> 0:09:16.280 acidification of the oceans is a function not of future emissions, 0:09:16.320 --> 0:09:20.480 but of the accumulated emissions from especially since the late 0:09:20.600 --> 0:09:23.920 late nineteen seventies and nineteen eighties, and so the companies 0:09:23.920 --> 0:09:26.280 that have profited the most from the ability to utilize 0:09:26.280 --> 0:09:29.040 the atmosphere as an open sewer should by right pay 0:09:29.520 --> 0:09:32.000 to at least in part, to clean up their mess. 0:09:32.080 --> 0:09:34.240 I could never understand when I was at the agency 0:09:34.320 --> 0:09:37.280 why they would need a petition to regulate greenhouse gases 0:09:37.360 --> 0:09:41.120 under TOSCO. It's maddening that with a petition they're unwilling 0:09:41.240 --> 0:09:44.000 to do their job. TOSK is a chemical safety actor. 0:09:44.080 --> 0:09:47.200 It's supposed to keep us safe from unsafe chemicals. CO 0:09:47.440 --> 0:09:50.800 two and methane are the two most unsafe chemicals that 0:09:50.920 --> 0:09:54.840 mankind has ever been presented with. If TOSCA can't regulate 0:09:54.920 --> 0:09:56.880 those two things, I don't know what the hell it's 0:09:56.920 --> 0:10:00.240 good for. So really, all the petition does is stas 0:10:00.400 --> 0:10:02.720 epated to its job. The science of the risk isn't 0:10:02.720 --> 0:10:05.359 particularly fancy. I mean it's the physics of a microwave 0:10:05.400 --> 0:10:07.880 oven and the chemistry of your soda stream machine. So 0:10:08.040 --> 0:10:10.559 it's not like the science is a problem. And we're 0:10:10.600 --> 0:10:13.640 already seeing the fact that these greenhouse gasses, the legacy 0:10:13.640 --> 0:10:15.840 ones that are still up there, are baking and burning 0:10:15.840 --> 0:10:17.640 the planet and acidifying the ocean. 0:10:17.679 --> 0:10:18.600 So the risk is there. 0:10:18.679 --> 0:10:20.840 All the elements are there. They just need to do 0:10:20.880 --> 0:10:21.959 their job absolutely. 0:10:22.080 --> 0:10:25.319 Thanks for that. The reason we turned to this approach, well, 0:10:25.440 --> 0:10:28.280 number one, it makes sense because the law is clear 0:10:28.400 --> 0:10:31.480 on its face. If there are chemical substances and mixtures 0:10:31.520 --> 0:10:35.280 that present an unreasonable risk, the agency must act to 0:10:35.320 --> 0:10:37.959 eliminate that unreasonable risk, to the point of fidding those 0:10:38.040 --> 0:10:41.120 chemical substances and mixtures. But the reason we turn to 0:10:41.160 --> 0:10:44.280 this as well is because this is existing law, and 0:10:44.920 --> 0:10:48.760 for decades now, Congress has been at an impasse over 0:10:48.840 --> 0:10:51.920 what to do about the climate crisis. Now, this year, 0:10:52.200 --> 0:10:55.240 with the passage of the Inflation Reduction Act and the 0:10:55.320 --> 0:11:00.760 earlier passage of the Bipartisan Infrastructure Law, the Democratic majorities 0:11:00.920 --> 0:11:06.040 in both houses did act somewhat to begin addressing the 0:11:06.160 --> 0:11:10.640 risk by amplifying investments and clean energy, and by paying 0:11:10.720 --> 0:11:15.080 for additional research and development and deployment of carbon negative 0:11:15.280 --> 0:11:20.320 technologies to remove or learn how to remove excess greenhouse 0:11:20.360 --> 0:11:24.239 gases from the atmosphere. But two things. Number one, it's 0:11:24.559 --> 0:11:28.080 no better than a drop in the proverbial bucket. Number two, 0:11:28.520 --> 0:11:32.480 it's all done on the taxpayer's dime. And so in 0:11:32.520 --> 0:11:38.120 no way do these efforts begin to require the industries 0:11:38.920 --> 0:11:41.640 that have most profited from the ability to futilize the 0:11:41.679 --> 0:11:44.840 atmosphere as an open sewer to try to resolve the problem. 0:11:44.880 --> 0:11:48.480 And that's important because unless we establish the principle that 0:11:48.559 --> 0:11:51.840 the polluter should pay to help clean up its mess 0:11:51.960 --> 0:11:55.680 then we're essentially imposing the entire burden on our children 0:11:55.679 --> 0:11:58.760 and future generations. Very needs to have a substantial stake 0:11:58.960 --> 0:12:02.440 in this on just the ability to profit from certain 0:12:02.480 --> 0:12:06.600 new tax credits. We should impose an incentive structure for 0:12:06.679 --> 0:12:10.760 them to rapidly phase out emissions and to commence to 0:12:10.840 --> 0:12:11.760 cleaning up their messages. 0:12:11.920 --> 0:12:16.320 Do you want to comment on the IRA, It's fine. 0:12:16.400 --> 0:12:19.160 It's fine that that it does. It does decarbonize a 0:12:19.160 --> 0:12:22.920 little bit. It certainly does provide for some decarbonization. Again, 0:12:22.960 --> 0:12:25.960 as Dan said, on a taxpayer's time and enables people 0:12:26.040 --> 0:12:29.080 who have a tax liability, so it's not everybody, but 0:12:29.120 --> 0:12:31.559 it enables people to have a tax liability to use 0:12:31.559 --> 0:12:34.720 greener energy. And that's great. But if you want to 0:12:34.840 --> 0:12:37.480 fix the problem, well, first of all, fossil fuels are 0:12:37.520 --> 0:12:41.360 part of our economic DNA, and you really can't fix 0:12:41.480 --> 0:12:45.959 greenhouse guess problems without an economic solution. And there are 0:12:45.960 --> 0:12:49.480 two ways to limit our deduction of greenhouse gases. Number one, 0:12:49.720 --> 0:12:52.600 you can limit fossil fuel supply and you can limit 0:12:52.640 --> 0:12:56.679 fossil fuel demand. Fossil fuel demand is limited somewhat by 0:12:56.720 --> 0:12:59.640 the decarbonization. You know, people won't need as much if 0:12:59.640 --> 0:13:02.360 they've got heat pumps out there and they're using solar energy, 0:13:02.520 --> 0:13:05.240 and that's fine, but we're actually increasing a little bit 0:13:05.280 --> 0:13:08.520 fossil fuel supply through some of the aspects of the IRA. 0:13:09.280 --> 0:13:12.800 For example, it allows power plants and industrial boilers and 0:13:12.840 --> 0:13:16.360 other folks to continue to burn coal and oil and 0:13:16.440 --> 0:13:19.400 natural gas as long as they capture some small portion 0:13:19.520 --> 0:13:23.880 of that using carbon capture and storage. Now, city production 0:13:23.920 --> 0:13:27.160 and power production is a high cost infrastructure in low marginy, 0:13:27.320 --> 0:13:30.880 and if the taxpayer is paying for the infrastructure that's 0:13:30.960 --> 0:13:36.960 required to carbon capture, then actually we're actually making sure 0:13:37.000 --> 0:13:39.160 that we're going to be using fossil fuels far into 0:13:39.200 --> 0:13:42.320 the future, and especially since so most of the carbon 0:13:42.360 --> 0:13:46.960 that's captured is not actually sequestered initially, it's actually used 0:13:47.000 --> 0:13:49.800 to capture gas and oil. It's hard to get to 0:13:49.960 --> 0:13:52.680 so it's actually producing more oil and gas than they 0:13:52.679 --> 0:13:56.000 would have otherwise. Plus through carbon capture and storage, if 0:13:56.000 --> 0:13:58.840 you look at the upstream and downstream emissions, you're actually 0:13:58.840 --> 0:14:02.200 only capturing forty fifty percent of the power. Plants are 0:14:02.200 --> 0:14:05.800 emitting about fifteen times the ambient levels of CO two 0:14:06.040 --> 0:14:08.040 under the best conditions of carbon capture. 0:14:08.120 --> 0:14:10.720 I mean, we had them kind of same again with 0:14:10.880 --> 0:14:15.440 the cop negotiations, where you know, there's very little appetite 0:14:15.440 --> 0:14:18.600 for saying no more fossil fuels or no more missions. 0:14:18.880 --> 0:14:22.680 They're also increasing the ability to drill through additional thrilling rights. 0:14:23.000 --> 0:14:25.480 I find most pernationous about the IRA that it gives 0:14:25.480 --> 0:14:29.160 people the impression that, well, we can relax because you know, 0:14:29.640 --> 0:14:32.360 we basically solve most of the problem and I'm sure 0:14:32.360 --> 0:14:33.800 it will solve the rest of it, and that's not 0:14:33.840 --> 0:14:36.720 true at all. So to me, this is sort of 0:14:36.760 --> 0:14:39.120 like government greenwashing, saying oh no, we took care of 0:14:39.120 --> 0:14:40.840 this problem. No, you didn't take care of it. 0:14:41.720 --> 0:14:45.440 There's a lot of politicians and political reporters too that 0:14:45.600 --> 0:14:50.080 don't understand that climate policy doesn't work quite the way 0:14:50.160 --> 0:14:53.080 other policies do, or a compromise is a big win. 0:14:54.720 --> 0:14:58.080 I think it's important not to paper over the problems 0:14:58.080 --> 0:15:02.200 that you just mentioned. Capture and storage is a good one. 0:15:02.400 --> 0:15:05.840 The reason why I think this COP was an abject 0:15:05.880 --> 0:15:11.200 failure is the same as the reason that COP twenty 0:15:11.280 --> 0:15:15.000 six in Glasgow was a failure, and that is a 0:15:15.040 --> 0:15:20.320 failure to establish as a central minimum standard that we 0:15:20.480 --> 0:15:25.080 need to phase out fossil fuels now in Glasgow. In 0:15:25.160 --> 0:15:29.280 the Final Communica there was a sentence or a sentence 0:15:29.320 --> 0:15:33.680 fragment that called upon the parties to phase down coal, 0:15:34.200 --> 0:15:37.720 not other fossil fuels, but coal to the extent that 0:15:37.760 --> 0:15:42.480 the coal was unabated. And this year there was a 0:15:42.520 --> 0:15:47.760 movement led by India and then supported by the United 0:15:47.760 --> 0:15:52.480 States in particular John Kerry, to call for a phase 0:15:52.600 --> 0:15:56.240 down not only of coal but also oil and natural gas. 0:15:56.560 --> 0:15:58.960 But this never made it in it because of the 0:15:59.000 --> 0:16:01.880 opposition of an number of countries. And so this is 0:16:01.920 --> 0:16:05.160 a problem, as Don pointed out, if we continue to 0:16:05.360 --> 0:16:10.960 produce and import and export and distribute and sell fossil fuels. 0:16:11.040 --> 0:16:14.080 They will be used as intended and used as intended 0:16:14.320 --> 0:16:18.680 means the release of considerable quantities of greenhouse gas missions, 0:16:18.720 --> 0:16:21.640 especially CO two, and so that takes us to CCS. 0:16:21.760 --> 0:16:25.560 Carbon capture and storage is not yet established or proven 0:16:25.600 --> 0:16:29.480 at scale in the United States or anywhere else. Nonetheless, 0:16:29.920 --> 0:16:34.960 funding CCS projects were one central feature of the Inflation 0:16:35.040 --> 0:16:39.240 Reduction Act, and so you know, a commitment to funding 0:16:39.520 --> 0:16:43.560 more research and development and deployment of CCS that has 0:16:43.680 --> 0:16:46.240 been decided for better or for worse here in the 0:16:46.360 --> 0:16:51.160 United States. Yes, should not count to eliminate a producer 0:16:51.480 --> 0:16:55.800 obligations with respect to reducing emissions unless it's highly effective, 0:16:56.000 --> 0:16:59.760 and so we will be monitoring and pressing for that. 0:17:00.000 --> 0:17:03.760 For example, if you are admitting fifty percent or more 0:17:03.840 --> 0:17:06.400 of the emissions that you otherwise would admit, well, then 0:17:06.440 --> 0:17:10.560 that is no solution. We need to essentially phase out 0:17:10.600 --> 0:17:14.760 all emissions and remove a share of the excess if 0:17:14.800 --> 0:17:18.439 we are to have a prayer of protecting and restoring 0:17:18.480 --> 0:17:22.399 a viable climate for our children and future generations. 0:17:22.760 --> 0:17:25.600 Yeah, okay, I'm going to let you describe this lawsuit. 0:17:25.640 --> 0:17:32.400 Now, so EPA rejected the petition on several grounds, some 0:17:32.480 --> 0:17:36.080 of which were quite surprising, the most surprising of which 0:17:36.240 --> 0:17:39.360 is that the EPA said that it was doing enough 0:17:39.400 --> 0:17:44.119 already with respect to the IRA and with respect to 0:17:44.160 --> 0:17:47.280 other rules that it had already enacted in rules that 0:17:47.320 --> 0:17:51.159 it was planning to enact to meet the President's goals 0:17:51.240 --> 0:17:53.760 in the reducing emissions, and they named a number of 0:17:53.840 --> 0:17:58.600 those rules. They only provided a quantitative assessment of emissions reductions, however, 0:17:58.720 --> 0:18:03.240 from one of the measures, that is the Inflation Reduction Act, 0:18:03.280 --> 0:18:06.480 and in fact that one shows only a small, real 0:18:06.560 --> 0:18:10.760 but a small reduction from what otherwise was to occur 0:18:11.200 --> 0:18:15.160 without the IRA. They provided no spreadsheet that showed that, 0:18:15.280 --> 0:18:18.280 you know, you'll get seventeen percent from the IRA here, 0:18:18.720 --> 0:18:22.560 and you'll get you know, x percent from new tailpipe 0:18:22.600 --> 0:18:26.240 emissions here, and all that adds up to one hundred percent. No, 0:18:26.359 --> 0:18:29.520 they didn't provide anything like that. So that is one 0:18:29.520 --> 0:18:33.879 of the basis of our lawsuit that they not only 0:18:33.920 --> 0:18:37.600 did it fail to prove what they asserted, they didn't 0:18:37.600 --> 0:18:41.560 even attempt to make any such showing. And furthermore, that's 0:18:41.600 --> 0:18:44.439 not even the standard that's relevant under the law. The 0:18:44.480 --> 0:18:47.560 standard under the Toxic Substance Control Act is not that 0:18:47.600 --> 0:18:50.560 you need to reduce the chemicals to the point that 0:18:50.800 --> 0:18:55.639 any particular ministration has indicated it seeks to do. You 0:18:55.720 --> 0:19:00.040 need to act to confront the unreasonable risk until the 0:19:00.080 --> 0:19:03.320 point that you've eliminated that unreasonable risk, and that is 0:19:03.359 --> 0:19:07.440 a much more stringent standard. In any event, we sued 0:19:07.680 --> 0:19:11.239 twelve asking the Court in the District of Oregon for 0:19:11.400 --> 0:19:16.439 Eugene to itself determine that greenhouse gas emissions and fossil 0:19:16.440 --> 0:19:19.440 fuels present an unreasonable risk of injury to health of 0:19:19.520 --> 0:19:24.800 the environment, and therefore, on that basis to instruct the 0:19:24.880 --> 0:19:27.439 Environmental Protection Aidency to open up the rule making that 0:19:27.640 --> 0:19:31.480 we requested in the petition, that is, the remedy that 0:19:31.720 --> 0:19:35.159 Congress provided for in Section twenty one of the Toxic 0:19:35.200 --> 0:19:39.040 Substances Control Act. And the Court is supposed to take 0:19:39.440 --> 0:19:45.480 its own fresh look at the relevant facts. Do carbon dioxide, methane, 0:19:45.600 --> 0:19:50.000 nitros oxide HFCs, and the other greenhouse gases and their 0:19:50.040 --> 0:19:53.520 principal sources fossil fuels, do they present an unreasonable risk 0:19:53.600 --> 0:19:56.080 of injury to health through the environment or not? And 0:19:56.160 --> 0:20:00.159 if they do, then it should compel the Agency to 0:20:00.480 --> 0:20:04.080 undertake a rule making under TOSCA to address that risk. 0:20:04.240 --> 0:20:07.240 Again, what really enraged me is is not only did 0:20:07.240 --> 0:20:10.479 they not provide the information to show that what they 0:20:10.520 --> 0:20:12.800 were doing was actually going to be enough, they asked 0:20:12.840 --> 0:20:15.080 us to provide the information that it wasn't going to 0:20:15.119 --> 0:20:17.119 be enough. They said, you know, in your lawsuit, you 0:20:17.160 --> 0:20:19.679 didn't show that all the things that we're doing and 0:20:19.880 --> 0:20:22.480 we intend to do aren't going to be enough. I mean, 0:20:22.520 --> 0:20:25.160 which just crazy. They're not only asking us to approve 0:20:25.200 --> 0:20:27.560 a negative, they're asking us to read their minds. What 0:20:27.600 --> 0:20:30.800 it boils down to is they said, don't worry about it. 0:20:31.240 --> 0:20:34.160 We've got this handled. And that's the sort of response 0:20:34.200 --> 0:20:36.280 that you give to your spouse when you're standing on 0:20:36.320 --> 0:20:38.480 a stool instead of a step ladder to change your 0:20:38.560 --> 0:20:41.720 light bulb. No, no, I have this under control. This 0:20:42.119 --> 0:20:45.000 is completely safe. It's not what you say. When the 0:20:45.000 --> 0:20:47.800 future of the planet hangs in balance, you've got to 0:20:47.800 --> 0:20:50.200 be pretty damn sure that you do have it under 0:20:50.240 --> 0:20:53.439 control enough to demonstrate how you have it under control. 0:20:53.520 --> 0:20:55.120 And they didn't do that. Mm hmm. 0:20:55.440 --> 0:20:58.399 So now you've filed asume, is there any kind of 0:20:58.480 --> 0:21:01.040 different argument that it's making and what could it compel 0:21:01.440 --> 0:21:03.159 the EPA to do so? 0:21:03.880 --> 0:21:07.800 I mean, another thing that we pointed out was that 0:21:08.040 --> 0:21:13.040 it's not plaintiffs spurred into establish exactly what the rule 0:21:13.600 --> 0:21:18.000 should be. That's the function for the agency. In the 0:21:18.080 --> 0:21:22.000 course of rule making under the statute, they should be 0:21:22.040 --> 0:21:25.280 going out to the public and trying to call the 0:21:25.280 --> 0:21:28.680 best ideas as to how this actually should be done, 0:21:28.840 --> 0:21:33.280 including reaching out to communities around the country. And so, 0:21:33.640 --> 0:21:36.000 had they done what they should have, which is to 0:21:36.160 --> 0:21:39.040 have granted the petition, they should have gone to highly 0:21:39.080 --> 0:21:44.800 impacted communities or communities where there are scientific bodies, where 0:21:44.840 --> 0:21:49.080 people have been thinking through these issues. And you know, 0:21:49.119 --> 0:21:51.560 basically they should have gone out to America to figure 0:21:51.600 --> 0:21:54.919 out how best to proceed. And there's you know, a 0:21:54.920 --> 0:21:57.199 procedure for that. It's in the statute. It's called an 0:21:57.200 --> 0:22:00.920 advanced notice of rule making where they would see input. Well, 0:22:00.920 --> 0:22:03.160 they didn't do that. We, by the way, decided that 0:22:03.359 --> 0:22:05.320 if they're not going to do it, we will do 0:22:05.440 --> 0:22:07.879 it to the extent that we have resources. And so 0:22:08.119 --> 0:22:11.280 on November one, eleven days before we filed the lawsuit, 0:22:11.440 --> 0:22:14.679 we actually held the public hearing in Boulder, Colorado, in 0:22:14.760 --> 0:22:18.320 conjunction with the City of Boulder in city council chambers, 0:22:18.520 --> 0:22:21.840 and twenty experts from the around the world actually testified, 0:22:21.880 --> 0:22:24.320 some in person and some by zoom, and you can 0:22:24.359 --> 0:22:27.119 find the full record of that at Cprclimate dot R. 0:22:27.240 --> 0:22:30.560 We provided that record to the Environmental Protection Agency. That's 0:22:30.600 --> 0:22:33.480 the sort of thing that the agency should be doing 0:22:33.680 --> 0:22:36.639 in any event. We in our petition and in the 0:22:36.720 --> 0:22:41.560 lawsuit both are reserved the right to provide additional input 0:22:41.680 --> 0:22:45.760 to the agency in conjunction with that rulemaking under TOSCA 0:22:45.880 --> 0:22:48.960 or other existing EPA authority, it needs to act so 0:22:49.080 --> 0:22:54.040 as to phase out fossil fuel emissions, particularly greenhouse gas emissions, 0:22:54.280 --> 0:22:59.000 and in addition, they need to ensure the removal of 0:22:59.040 --> 0:23:03.440 a substantial mount of the overburden of atmospheric CO two 0:23:03.480 --> 0:23:06.199 and methae, because unless that is done, we will not 0:23:06.280 --> 0:23:09.960 be able to reverse the present crisis in sufficient time 0:23:10.440 --> 0:23:13.479 to preserve, for example, nature as we've come to know it. 0:23:13.520 --> 0:23:17.720 We need to do both, and the agency has the 0:23:17.760 --> 0:23:21.960 authority to commence that entire project by utilizing the authorities 0:23:21.960 --> 0:23:23.520 that we laid out in the lawsuit. 0:23:23.640 --> 0:23:26.359 Amy, you asked what else was new, and there's a 0:23:26.400 --> 0:23:29.439 couple of things. The IRA is new. It's not in 0:23:29.440 --> 0:23:32.600 the petition because it was passed after we'd filed, so 0:23:32.800 --> 0:23:34.919 we talk about that, and that's sort of brand new. 0:23:35.200 --> 0:23:38.160 The other thing, in twenty fifteen, I did a petition 0:23:38.240 --> 0:23:42.080 EPA under the Toxic Substances Control Act to regulate CO 0:23:42.320 --> 0:23:45.719 two because of ocean acidification. And I did that as 0:23:45.760 --> 0:23:47.800 sort of a workaround because you know, there are a 0:23:47.840 --> 0:23:50.600 lot of screwy climate deniers out there, but nobody could 0:23:50.640 --> 0:23:54.080 really deny the fact that the oceans were actually being cidified. 0:23:54.680 --> 0:23:59.120 And EPA responded to that petition by saying, don't worry, 0:23:59.320 --> 0:24:02.560 we're handling ocean acidification. That was in twenty fifteen. We 0:24:02.560 --> 0:24:04.280 didn't follow a civil suit, and I think one of 0:24:04.280 --> 0:24:06.600 the main reasons was because we thought a judge would 0:24:06.600 --> 0:24:09.119 give difference to the fact that the agency was promising 0:24:09.560 --> 0:24:12.120 that in fact, it was unnecessary for them to regulator 0:24:12.240 --> 0:24:16.280 under TOSCA because trust me, we have it handled. Now. 0:24:16.440 --> 0:24:19.000 This may sound familiar because that's exactly what they said 0:24:19.000 --> 0:24:22.320 this time. So they didn't have a secret plan last time, 0:24:22.560 --> 0:24:24.680 and they don't have a secret plan this time, so 0:24:24.840 --> 0:24:26.280 that's sort of new. 0:24:26.400 --> 0:24:30.800 Also, in their rejection in twenty fifteen of Don's petition, 0:24:31.320 --> 0:24:34.400 they said that the Toxic Substances the Control Act does 0:24:34.440 --> 0:24:38.160 not apply to greenhouse gases because they said greenhouse gases 0:24:38.200 --> 0:24:41.760