Speaker 1: November was a really big month for climate lawsuits. Earlier
Speaker 1: in the month, the folks who had been petitioning the
Speaker 1: EPA to use the Toxic Substances Control Act or TOSCA
Speaker 1: to regulate greenhouse gas emissions filed a civil suit to
Speaker 1: compel them to do so. Here's longtime EPA scientist Don
Speaker 1: Viviani on why.
Speaker 2: I could never understand when I was at the agency
Speaker 2: why they would meet a petition to regulate greenhouse guests
Speaker 2: is under TOSCO. It's maddening that with a petition they're
Speaker 2: unwilling to do their job. Tosc is a chemical safety
Speaker 2: Act supposed to keep us safe from unsafe chemicals. O
Speaker 2: two and methane are the two most unsafe chemicals that
Speaker 2: mankind has ever been presented with.
Speaker 1: We'll hear more from Viviani as well as Dan Gelbern,
Speaker 1: the lead attorney on that case, in a minute. But first,
Speaker 1: in other major climate litigation news, the first ever climate
Speaker 1: RICO case has now been filed. The Racketeer Influenced and
Speaker 1: Corrupt Organizations Act was passed in the nineteen seventies to
Speaker 1: give the government a way to deal with organized crime
Speaker 1: the mafia. In the eighties, the Supreme Court upheld the
Speaker 1: use of the law in civil cases as well, which
Speaker 1: can be brought against individuals, organizations, or corporations. If you
Speaker 1: listened to our season on the Chevron Ecuador case, you
Speaker 1: might remember that Chevron successfully sued US attorney Stephen Donziger
Speaker 1: under Rico. This time, the complaint flows the other way,
Speaker 1: alleging that the global oil majors, their trade associations, and
Speaker 1: a network of dark money funded think tanks and operatives
Speaker 1: where part of an organized conspiracy to mislead the public
Speaker 1: on climate change, resulting in a multitude of damages. The
Speaker 1: plaintiffs in this case are sixteen municipalities in the Commonwealth
Speaker 1: of Puerto Rico that suffered tremendous damage when Hurricane Maria
Speaker 1: hit and are steering down the barrel of more intense
Speaker 1: and more frequent hurricanes for the foreseeable future, as we
Speaker 1: saw recently with Hurricane Fiona. I started following this case
Speaker 1: three years ago and went to Puerto Rico in twenty
Speaker 1: nineteen with Attorney Melissa Kay Sims. Simms is senior counsel
Speaker 1: for the plaintiff's law firm Millburg, which also handled several
Speaker 1: of the opioid Rico cases. In fact, Sims originally went
Speaker 1: to Puerto Rico while working on one of those cases.
Speaker 3: The interesting part about the opioid litigation is that really
Speaker 3: it all started in Puerto Rico. Yeah, we represent most
Speaker 3: of the municipalities. We follow the class action for the
Speaker 3: municipalities in Puerto Rico early on, and we filed racketeering
Speaker 3: out one of the first cases that filed racketeering in
Speaker 3: federal court. And what we found out was, you know,
Speaker 3: Puerto Rico has been kind of the guinea pig for
Speaker 3: big Pharma.
Speaker 1: One of her first trips there was about a year
Speaker 1: after Hurricane Maria, and she was shocked by how much
Speaker 1: devastation there still was. I was shocked by how much
Speaker 1: there was even in twenty nineteen, and there's still things
Speaker 1: that haven't been fixed, or things that were fixed and
Speaker 1: that got broken again when Fiona hit. While she was
Speaker 1: traveling back and forth to Puerto Rico, Sim saw various
Speaker 1: articles in newspapers talking about how hurricanes were becoming more intense,
Speaker 1: storm surge was becoming more damaging thanks to climate change,
Speaker 1: and importantly, how several of these outcomes had been predicted
Speaker 1: decades earlier by climate scientists. Who were working for oil
Speaker 1: companies at the time. A light bulb went off.
Speaker 3: If it's proven that you that you cause it, and
Speaker 3: if it's proven that you, you know, conspired with somebody
Speaker 3: else to profit off that loss to the municipality, you
Speaker 3: should have paper.
Speaker 1: Last week, Milberg, the firm that SIMS works with, filed
Speaker 1: a reco case on behalf of sixteen Puerto Rican municipalities
Speaker 1: against seven oil companies, three coal companies, and hundreds of
Speaker 1: organizations and operatives alleging consumer fraud, racketeering, antitrust, fraudulent misrepresentation,
Speaker 1: negligent misrepresentation, negligent fraudulent concealment, conspiracy to defraud, products, liability,
Speaker 1: strict liability, failure to warn, negligent failure to warn, and
Speaker 1: unjust enrichment as a result of the devastating storms of
Speaker 1: September twenty seventeen and the aftermath of those storms, which
Speaker 1: occurred as a result of the defendants acts and omissions.
Speaker 1: It's a whopping case. The complaint itself is thousands of pages,
Speaker 1: with lots and lots of exhibits. I'll be bringing you
Speaker 1: a whole lot more this story in the weeks and
Speaker 1: months ahead. But having spoken to a few legal analysts
Speaker 1: about it already, I can say it is a big deal.
Speaker 1: After the break, we're going to talk about the other
Speaker 1: climate case I mentioned up top. NASA climate scientist James Hanson,
Speaker 1: Carbon Major's Report author Richard Heady, and a handful of
Speaker 1: other folks have sued the EPA to compel them to
Speaker 1: regulate greenhouse gas emissions under the Toxic Substances Control Act.
Speaker 1: I'm Amie Westervelt, and this is drilled earlier this year,
Speaker 1: doctor James Hanson, Richard Heaty, Don Viviani, who you heard
Speaker 1: from up top, and climate psychologist Lee's Van Susterron filed
Speaker 1: a petition to the EPA asking them to make a
Speaker 1: determination around a pretty straightforward question, do greenhouse gases post
Speaker 1: was an unreasonable risk to environmental and human health? If so,
Speaker 1: they would fall under the Toxic Substances Control Act, or TOSCA,
Speaker 1: which explicitly gives the EPA the right to create rules
Speaker 1: that would remove that harm. In September, the EPA rejected
Speaker 1: that petition, and in early November the petitioners took their
Speaker 1: case to court. I talked to Attorney Dan Gilburn of
Speaker 1: the Climate Protection and Restoration Initiative and Viviani shortly after
Speaker 1: the case was filed.
Speaker 2: My name is Don Viviani. I was a scientist at
Speaker 2: EPA for about thirty four to thirty five years, and
Speaker 2: at one point in the nineties I was director of
Speaker 2: the Climate Policy Assessment Division. So a lot of what's
Speaker 2: going on now is my fault, and I apologize for that,
Speaker 2: but it was a long time ago, and I also
Speaker 2: had some other divisions that were with regulations, and I
Speaker 2: was I was chairman of the Great Lakes and Water
Speaker 2: Quality Commission Toxic Substice Commission, so I know a little
Speaker 2: bit about all of the things that are here.
Speaker 4: My name is Dan Galpern. I am the founder, executive
Speaker 4: director and General counsel of Climate Protection and Restoration Initiative,
Speaker 4: and for about the last thirteen years and still I
Speaker 4: serve as the attorney and policy advisor to the well
Speaker 4: known climate scientist James Hansen. And I met John probably
Speaker 4: about seven years ago when we were talking of a
Speaker 4: similar petition to the Environmental Protection Agency that he actually filed.
Speaker 4: So under the Toxic Substances Control Act, the Environmental Protection
Speaker 4: Agency is to impose certain restrictions on a chemical substance
Speaker 4: or mixture where the agency determines that that chemical substance
Speaker 4: or mixture presents an unreasonable risk of injury to health
Speaker 4: or the environment, And the law was established to protect
Speaker 4: the public and the natural world from the increasing intrusion
Speaker 4: into the environment of chemical substances from our increasingly industrial society.
Speaker 4: And so our petition established I think in considerable detail
Speaker 4: that greenhouse gases and fossil fuels, which are the primary
Speaker 4: sources of the overconcentration of greenhouse gases in the atmosphere now,
Speaker 4: especially carbon dioxide and methane, and some of the other
Speaker 4: greenhouse gases as well, clearly impose an unreasonable risk of
Speaker 4: injury to help them the environment. In fact, President Biden,
Speaker 4: both before he became president as candidate and then also
Speaker 4: as president, has referred to the climate crisis that's created
Speaker 4: by the over concentration of these chemicals as an existential
Speaker 4: threat to our nation and to the planet. So it's
Speaker 4: well beyond an unreasonable risk, and there are alternative which
Speaker 4: renders the risk doubly unreasonable. So our petition called upon
Speaker 4: the agency to undertake a rule making to eliminate that
Speaker 4: unreasonable risk, and in particular, we said it should act
Speaker 4: under the statute to phase out greenhouse gas emissions and
Speaker 4: fossil fuels. And the reason for that, as we explain
Speaker 4: in the petition, is that current global warming and current
Speaker 4: acidification of the oceans is a function not of future emissions,
Speaker 4: but of the accumulated emissions from especially since the late
Speaker 4: late nineteen seventies and nineteen eighties, and so the companies
Speaker 4: that have profited the most from the ability to utilize
Speaker 4: the atmosphere as an open sewer should by right pay
Speaker 4: to at least in part, to clean up their mess.
Speaker 2: I could never understand when I was at the agency
Speaker 2: why they would need a petition to regulate greenhouse gases
Speaker 2: under TOSCO. It's maddening that with a petition they're unwilling
Speaker 2: to do their job. TOSK is a chemical safety actor.
Speaker 2: It's supposed to keep us safe from unsafe chemicals. CO
Speaker 2: two and methane are the two most unsafe chemicals that
Speaker 2: mankind has ever been presented with. If TOSCA can't regulate
Speaker 2: those two things, I don't know what the hell it's
Speaker 2: good for. So really, all the petition does is stas
Speaker 2: epated to its job. The science of the risk isn't
Speaker 2: particularly fancy. I mean it's the physics of a microwave
Speaker 2: oven and the chemistry of your soda stream machine. So
Speaker 2: it's not like the science is a problem. And we're
Speaker 2: already seeing the fact that these greenhouse gasses, the legacy
Speaker 2: ones that are still up there, are baking and burning
Speaker 2: the planet and acidifying the ocean.
Speaker 5: So the risk is there.
Speaker 2: All the elements are there. They just need to do
Speaker 2: their job absolutely.
Speaker 4: Thanks for that. The reason we turned to this approach, well,
Speaker 4: number one, it makes sense because the law is clear
Speaker 4: on its face. If there are chemical substances and mixtures
Speaker 4: that present an unreasonable risk, the agency must act to
Speaker 4: eliminate that unreasonable risk, to the point of fidding those
Speaker 4: chemical substances and mixtures. But the reason we turn to
Speaker 4: this as well is because this is existing law, and
Speaker 4: for decades now, Congress has been at an impasse over
Speaker 4: what to do about the climate crisis. Now, this year,
Speaker 4: with the passage of the Inflation Reduction Act and the
Speaker 4: earlier passage of the Bipartisan Infrastructure Law, the Democratic majorities
Speaker 4: in both houses did act somewhat to begin addressing the
Speaker 4: risk by amplifying investments and clean energy, and by paying
Speaker 4: for additional research and development and deployment of carbon negative
Speaker 4: technologies to remove or learn how to remove excess greenhouse
Speaker 4: gases from the atmosphere. But two things. Number one, it's
Speaker 4: no better than a drop in the proverbial bucket. Number two,
Speaker 4: it's all done on the taxpayer's dime. And so in
Speaker 4: no way do these efforts begin to require the industries
Speaker 4: that have most profited from the ability to futilize the
Speaker 4: atmosphere as an open sewer to try to resolve the problem.
Speaker 4: And that's important because unless we establish the principle that
Speaker 4: the polluter should pay to help clean up its mess
Speaker 4: then we're essentially imposing the entire burden on our children
Speaker 4: and future generations. Very needs to have a substantial stake
Speaker 4: in this on just the ability to profit from certain
Speaker 4: new tax credits. We should impose an incentive structure for
Speaker 4: them to rapidly phase out emissions and to commence to
Speaker 4: cleaning up their messages.
Speaker 2: Do you want to comment on the IRA, It's fine.
Speaker 2: It's fine that that it does. It does decarbonize a
Speaker 2: little bit. It certainly does provide for some decarbonization. Again,
Speaker 2: as Dan said, on a taxpayer's time and enables people
Speaker 2: who have a tax liability, so it's not everybody, but
Speaker 2: it enables people to have a tax liability to use
Speaker 2: greener energy. And that's great. But if you want to
Speaker 2: fix the problem, well, first of all, fossil fuels are
Speaker 2: part of our economic DNA, and you really can't fix
Speaker 2: greenhouse guess problems without an economic solution. And there are
Speaker 2: two ways to limit our deduction of greenhouse gases. Number one,
Speaker 2: you can limit fossil fuel supply and you can limit
Speaker 2: fossil fuel demand. Fossil fuel demand is limited somewhat by
Speaker 2: the decarbonization. You know, people won't need as much if
Speaker 2: they've got heat pumps out there and they're using solar energy,
Speaker 2: and that's fine, but we're actually increasing a little bit
Speaker 2: fossil fuel supply through some of the aspects of the IRA.
Speaker 2: For example, it allows power plants and industrial boilers and
Speaker 2: other folks to continue to burn coal and oil and
Speaker 2: natural gas as long as they capture some small portion
Speaker 2: of that using carbon capture and storage. Now, city production
Speaker 2: and power production is a high cost infrastructure in low marginy,
Speaker 2: and if the taxpayer is paying for the infrastructure that's
Speaker 2: required to carbon capture, then actually we're actually making sure
Speaker 2: that we're going to be using fossil fuels far into
Speaker 2: the future, and especially since so most of the carbon
Speaker 2: that's captured is not actually sequestered initially, it's actually used
Speaker 2: to capture gas and oil. It's hard to get to
Speaker 2: so it's actually producing more oil and gas than they
Speaker 2: would have otherwise. Plus through carbon capture and storage, if
Speaker 2: you look at the upstream and downstream emissions, you're actually
Speaker 2: only capturing forty fifty percent of the power. Plants are
Speaker 2: emitting about fifteen times the ambient levels of CO two
Speaker 2: under the best conditions of carbon capture.
Speaker 5: I mean, we had them kind of same again with
Speaker 5: the cop negotiations, where you know, there's very little appetite
Speaker 5: for saying no more fossil fuels or no more missions.
Speaker 2: They're also increasing the ability to drill through additional thrilling rights.
Speaker 2: I find most pernationous about the IRA that it gives
Speaker 2: people the impression that, well, we can relax because you know,
Speaker 2: we basically solve most of the problem and I'm sure
Speaker 2: it will solve the rest of it, and that's not
Speaker 2: true at all. So to me, this is sort of
Speaker 2: like government greenwashing, saying oh no, we took care of
Speaker 2: this problem. No, you didn't take care of it.
Speaker 5: There's a lot of politicians and political reporters too that
Speaker 5: don't understand that climate policy doesn't work quite the way
Speaker 5: other policies do, or a compromise is a big win.
Speaker 4: I think it's important not to paper over the problems
Speaker 4: that you just mentioned. Capture and storage is a good one.
Speaker 4: The reason why I think this COP was an abject
Speaker 4: failure is the same as the reason that COP twenty
Speaker 4: six in Glasgow was a failure, and that is a
Speaker 4: failure to establish as a central minimum standard that we
Speaker 4: need to phase out fossil fuels now in Glasgow. In
Speaker 4: the Final Communica there was a sentence or a sentence
Speaker 4: fragment that called upon the parties to phase down coal,
Speaker 4: not other fossil fuels, but coal to the extent that
Speaker 4: the coal was unabated. And this year there was a
Speaker 4: movement led by India and then supported by the United
Speaker 4: States in particular John Kerry, to call for a phase
Speaker 4: down not only of coal but also oil and natural gas.
Speaker 4: But this never made it in it because of the
Speaker 4: opposition of an number of countries. And so this is
Speaker 4: a problem, as Don pointed out, if we continue to
Speaker 4: produce and import and export and distribute and sell fossil fuels.
Speaker 4: They will be used as intended and used as intended
Speaker 4: means the release of considerable quantities of greenhouse gas missions,
Speaker 4: especially CO two, and so that takes us to CCS.
Speaker 4: Carbon capture and storage is not yet established or proven
Speaker 4: at scale in the United States or anywhere else. Nonetheless,
Speaker 4: funding CCS projects were one central feature of the Inflation
Speaker 4: Reduction Act, and so you know, a commitment to funding
Speaker 4: more research and development and deployment of CCS that has
Speaker 4: been decided for better or for worse here in the
Speaker 4: United States. Yes, should not count to eliminate a producer
Speaker 4: obligations with respect to reducing emissions unless it's highly effective,
Speaker 4: and so we will be monitoring and pressing for that.
Speaker 4: For example, if you are admitting fifty percent or more
Speaker 4: of the emissions that you otherwise would admit, well, then
Speaker 4: that is no solution. We need to essentially phase out
Speaker 4: all emissions and remove a share of the excess if
Speaker 4: we are to have a prayer of protecting and restoring
Speaker 4: a viable climate for our children and future generations.
Speaker 5: Yeah, okay, I'm going to let you describe this lawsuit.
Speaker 4: Now, so EPA rejected the petition on several grounds, some
Speaker 4: of which were quite surprising, the most surprising of which
Speaker 4: is that the EPA said that it was doing enough
Speaker 4: already with respect to the IRA and with respect to
Speaker 4: other rules that it had already enacted in rules that
Speaker 4: it was planning to enact to meet the President's goals
Speaker 4: in the reducing emissions, and they named a number of
Speaker 4: those rules. They only provided a quantitative assessment of emissions reductions, however,
Speaker 4: from one of the measures, that is the Inflation Reduction Act,
Speaker 4: and in fact that one shows only a small, real
Speaker 4: but a small reduction from what otherwise was to occur
Speaker 4: without the IRA. They provided no spreadsheet that showed that,
Speaker 4: you know, you'll get seventeen percent from the IRA here,
Speaker 4: and you'll get you know, x percent from new tailpipe
Speaker 4: emissions here, and all that adds up to one hundred percent. No,
Speaker 4: they didn't provide anything like that. So that is one
Speaker 4: of the basis of our lawsuit that they not only
Speaker 4: did it fail to prove what they asserted, they didn't
Speaker 4: even attempt to make any such showing. And furthermore, that's
Speaker 4: not even the standard that's relevant under the law. The
Speaker 4: standard under the Toxic Substance Control Act is not that
Speaker 4: you need to reduce the chemicals to the point that
Speaker 4: any particular ministration has indicated it seeks to do. You
Speaker 4: need to act to confront the unreasonable risk until the
Speaker 4: point that you've eliminated that unreasonable risk, and that is
Speaker 4: a much more stringent standard. In any event, we sued
Speaker 4: twelve asking the Court in the District of Oregon for
Speaker 4: Eugene to itself determine that greenhouse gas emissions and fossil
Speaker 4: fuels present an unreasonable risk of injury to health of
Speaker 4: the environment, and therefore, on that basis to instruct the
Speaker 4: Environmental Protection Aidency to open up the rule making that
Speaker 4: we requested in the petition, that is, the remedy that
Speaker 4: Congress provided for in Section twenty one of the Toxic
Speaker 4: Substances Control Act. And the Court is supposed to take
Speaker 4: its own fresh look at the relevant facts. Do carbon dioxide, methane,
Speaker 4: nitros oxide HFCs, and the other greenhouse gases and their
Speaker 4: principal sources fossil fuels, do they present an unreasonable risk
Speaker 4: of injury to health through the environment or not? And
Speaker 4: if they do, then it should compel the Agency to
Speaker 4: undertake a rule making under TOSCA to address that risk.
Speaker 2: Again, what really enraged me is is not only did
Speaker 2: they not provide the information to show that what they
Speaker 2: were doing was actually going to be enough, they asked
Speaker 2: us to provide the information that it wasn't going to
Speaker 2: be enough. They said, you know, in your lawsuit, you
Speaker 2: didn't show that all the things that we're doing and
Speaker 2: we intend to do aren't going to be enough. I mean,
Speaker 2: which just crazy. They're not only asking us to approve
Speaker 2: a negative, they're asking us to read their minds. What
Speaker 2: it boils down to is they said, don't worry about it.
Speaker 2: We've got this handled. And that's the sort of response
Speaker 2: that you give to your spouse when you're standing on
Speaker 2: a stool instead of a step ladder to change your
Speaker 2: light bulb. No, no, I have this under control. This
Speaker 2: is completely safe. It's not what you say. When the
Speaker 2: future of the planet hangs in balance, you've got to
Speaker 2: be pretty damn sure that you do have it under
Speaker 2: control enough to demonstrate how you have it under control.
Speaker 2: And they didn't do that. Mm hmm.
Speaker 5: So now you've filed asume, is there any kind of
Speaker 5: different argument that it's making and what could it compel
Speaker 5: the EPA to do so?
Speaker 4: I mean, another thing that we pointed out was that
Speaker 4: it's not plaintiffs spurred into establish exactly what the rule
Speaker 4: should be. That's the function for the agency. In the
Speaker 4: course of rule making under the statute, they should be
Speaker 4: going out to the public and trying to call the
Speaker 4: best ideas as to how this actually should be done,
Speaker 4: including reaching out to communities around the country. And so,
Speaker 4: had they done what they should have, which is to
Speaker 4: have granted the petition, they should have gone to highly
Speaker 4: impacted communities or communities where there are scientific bodies, where
Speaker 4: people have been thinking through these issues. And you know,
Speaker 4: basically they should have gone out to America to figure
Speaker 4: out how best to proceed. And there's you know, a
Speaker 4: procedure for that. It's in the statute. It's called an
Speaker 4: advanced notice of rule making where they would see input. Well,
Speaker 4: they didn't do that. We, by the way, decided that
Speaker 4: if they're not going to do it, we will do
Speaker 4: it to the extent that we have resources. And so
Speaker 4: on November one, eleven days before we filed the lawsuit,
Speaker 4: we actually held the public hearing in Boulder, Colorado, in
Speaker 4: conjunction with the City of Boulder in city council chambers,
Speaker 4: and twenty experts from the around the world actually testified,
Speaker 4: some in person and some by zoom, and you can
Speaker 4: find the full record of that at Cprclimate dot R.
Speaker 4: We provided that record to the Environmental Protection Agency. That's
Speaker 4: the sort of thing that the agency should be doing
Speaker 4: in any event. We in our petition and in the
Speaker 4: lawsuit both are reserved the right to provide additional input
Speaker 4: to the agency in conjunction with that rulemaking under TOSCA
Speaker 4: or other existing EPA authority, it needs to act so
Speaker 4: as to phase out fossil fuel emissions, particularly greenhouse gas emissions,
Speaker 4: and in addition, they need to ensure the removal of
Speaker 4: a substantial mount of the overburden of atmospheric CO two
Speaker 4: and methae, because unless that is done, we will not
Speaker 4: be able to reverse the present crisis in sufficient time
Speaker 4: to preserve, for example, nature as we've come to know it.
Speaker 4: We need to do both, and the agency has the
Speaker 4: authority to commence that entire project by utilizing the authorities
Speaker 4: that we laid out in the lawsuit.
Speaker 2: Amy, you asked what else was new, and there's a
Speaker 2: couple of things. The IRA is new. It's not in
Speaker 2: the petition because it was passed after we'd filed, so
Speaker 2: we talk about that, and that's sort of brand new.
Speaker 2: The other thing, in twenty fifteen, I did a petition
Speaker 2: EPA under the Toxic Substances Control Act to regulate CO
Speaker 2: two because of ocean acidification. And I did that as
Speaker 2: sort of a workaround because you know, there are a
Speaker 2: lot of screwy climate deniers out there, but nobody could
Speaker 2: really deny the fact that the oceans were actually being cidified.
Speaker 2: And EPA responded to that petition by saying, don't worry,
Speaker 2: we're handling ocean acidification. That was in twenty fifteen. We
Speaker 2: didn't follow a civil suit, and I think one of
Speaker 2: the main reasons was because we thought a judge would
Speaker 2: give difference to the fact that the agency was promising
Speaker 2: that in fact, it was unnecessary for them to regulator
Speaker 2: under TOSCA because trust me, we have it handled. Now.
Speaker 2: This may sound familiar because that's exactly what they said
Speaker 2: this time. So they didn't have a secret plan last time,
Speaker 2: and they don't have a secret plan this time, so
Speaker 2: that's sort of new.
Speaker 4: Also, in their rejection in twenty fifteen of Don's petition,
Speaker 4: they said that the Toxic Substances the Control Act does
Speaker 4: not apply to greenhouse gases because they said greenhouse gases
Speaker 4: like CO two are mere byproducts of other activity. There
Speaker 4: was no support in the statute for that, and in fact,
Speaker 4: that was just plain wrong. One of the nice things
Speaker 4: about their current letter of rejection, however, is that they
Speaker 4: admit that the Toxic Substances Control Act is available to
Speaker 4: control greenhouse gas emissions greenhouse gas polution. So we point
Speaker 4: out in the lawsuit that the Agency admits to that.
Speaker 4: And the other thing that the Agency admits to that
Speaker 4: we pointed out in our complaint is that the scientific
Speaker 4: evidence that we laid out in the petition is of
Speaker 4: sufficient quantity and robustness to have been essentially on par
Speaker 4: with the evidence that they used in two thousand and
Speaker 4: nine to ground the endangerment finding which kicked off the
Speaker 4: agency's restrictions on tailpipe emissions from autos and light trucks. Nonetheless,
Speaker 4: in their letter rejection, they did not decide one way
Speaker 4: or the other whether greenhouse gas emissions present a unreasonable
Speaker 4: risk of injury to health in the environment. They neatly
Speaker 4: avoided that central question, do.
Speaker 5: You think you might see interveners like the American Petroleum
Speaker 5: Institute or the US Chamber, any of these folks that
Speaker 5: have intervened in other climate cases.
Speaker 4: I think that it's a possibility, but I don't want
Speaker 4: to talk about that before it happens. Prepared for all eventualities.
Speaker 4: But you know, the agency does not need their help.
Speaker 4: This is an agency determination and it should be made
Speaker 4: on the question of risk and risk alone.
Speaker 5: That kind of answer is the next thing I was
Speaker 5: going to ask you, which is, to what extent does
Speaker 5: it seem possible that this response from them came in
Speaker 5: the wake of West Virginia versus EPA, And maybe the
Speaker 5: EPA is thinking, oh, if we make a rule on
Speaker 5: greenhouse gases, it's going to end up in the Supreme Court.
Speaker 5: And I wonder if you think that played a role.
Speaker 4: Well, I don't want to speak for the agency on that.
Speaker 4: I think it's possible, although the words West Virginia did
Speaker 4: not appear in their letter of rejection, but I'd like
Speaker 4: to talk to it more generally. A number of the
Speaker 4: rules that the agency is contemplating or maybe contemplating, are
Speaker 4: based on provisions of law that are far less particular
Speaker 4: as to the agency's specific duties than it's Toxic Substances
Speaker 4: Control Act. Like take, for example, the revision of the
Speaker 4: Clean Air Act that was at issue in the West
Speaker 4: Virginia versus EPA case. There, the Obama administration built its
Speaker 4: Clean Power Plan on the basis of a provision that
Speaker 4: that was quite general if you go back and read
Speaker 4: the majority opinion. But here, under specifically Section six of
Speaker 4: the Toxic Substances Control Act, the Agency is required, not permitted,
Speaker 4: but is required to impose requirements to ensure that any
Speaker 4: such unreasonable risk from these chemical substances are eliminated. And so,
Speaker 4: in fact, I think that the West Virginia decision provides
Speaker 4: a very strong argument for action under the Toxic Substances
Speaker 4: Control Act if they want to do anything serious about
Speaker 4: the climate crisis at all. So, if they intend to
Speaker 4: seriously enact a full fledged decarbonization program in the United States,
Speaker 4: then you wanted to be based on a firm legal foundation.
Speaker 4: And that's what we had in mind with respect to
Speaker 4: our petition for the Toxic Substance Control Act. Even before
Speaker 4: the West Virginia decision, we were concerned about this very
Speaker 4: issue because West Virginia did not arise out of whole cloth.
Speaker 4: There have been recurrent efforts by the Supreme Court over
Speaker 4: recent years to cut back EPA authority to get after
Speaker 4: the climate risk, where they were relying on statutes that
Speaker 4: are far more ambiguous on the question than TOSCA.
Speaker 2: Yeah, let me maybe support that a little bit more.
Speaker 2: If you read the West Virginia decision mariority decision, it
Speaker 2: says that EPA is an expert in how the United
Speaker 2: States should produce the synergy because under the law it
Speaker 2: gave folks who burn coal, for example, of the opportunity
Speaker 2: to lessen their emissions by using, for example, green energy
Speaker 2: sources to provide some of the power. And the Court said, rightly, so,
Speaker 2: really the EPA was an expert, and that Department of
Speaker 2: Energy was well, again, now we're talking about chemical safety,
Speaker 2: and EPA is exactly expert in that. It's what they do.
Speaker 2: It's also about risk, and epas experts and risk, so
Speaker 2: EPA is actually expert in this. The other thing is
Speaker 2: that EPA has an internal process that it uses to
Speaker 2: decide whether or not to regulate, and at no point
Speaker 2: in that process does it say are we handling it
Speaker 2: through other means? That comes in later the first part
Speaker 2: of the process is is there a risk, and clearly
Speaker 2: there's a risk. The second part of the process is
Speaker 2: it a significant risk? And there is a significant risk.
Speaker 2: The third part of the processes do we need a
Speaker 2: work group for it because it may be an unreasonable risk?
Speaker 2: And the answer to that is of course, And that's
Speaker 2: what they were supposed to do. They were supposed to
Speaker 2: establish a work group. They weren't supposed to jump to
Speaker 2: the answer and say no, no, we have this handled. Hm.
Speaker 5: That's so interesting. Okay, so what's the next step here?
Speaker 4: Well, we a lot happens before you get to a trial,
Speaker 4: but eventually we're headed to a trial on the question
Speaker 4: these chemicals present an unreasonable risk, and the court needs
Speaker 4: to decide that on the basis of the record that
Speaker 4: we established in court. So there will be experts testifying
Speaker 4: on the question. This is going to be a full
Speaker 4: fledged civil lawsuit over that question, and then if the
Speaker 4: court makes the decision that we think is compelled by
Speaker 4: the reasonable evidence, then we'll be back to the point
Speaker 4: where the agency should be already, which is that the
Speaker 4: agency should be undertaking a rule making.
Speaker 5: The last question I have for both of you is
Speaker 5: just well, two things. One, I'm curious to hear both
Speaker 5: of your opinions on why TOSCA hasn't really been used
Speaker 5: in this way by the agency. John, Like, I remember
Speaker 5: you talking about this petition in twenty fifteen and it
Speaker 5: seemed like such a no, So I'm curious what has
Speaker 5: kept them from using it. And then the other is
Speaker 5: just what you would say two people who are like, well,
Speaker 5: we don't have time for a lawsuit. We need to
Speaker 5: be tackling this issue now. And why is the EPA
Speaker 5: dragging their feed so much? Is there any other sort
Speaker 5: of way to push them?
Speaker 2: First of all, as to why they haven't done it before,
Speaker 2: it's because they were frightened. They got hammered really badly
Speaker 2: on the asbestos case, and I thought they had a
Speaker 2: slam dunk there, but they didn't. And it was because
Speaker 2: the courts felt they didn't do their due diligence and
Speaker 2: looking at other alternatives. They didn't look at costs and
Speaker 2: benefits properly, et cetera, et cetera. Well, you know what,
Speaker 2: Congress got rid of that requirement in the twenty sixteen amendments,
Speaker 2: So I really don't know why the Trump administration didn't
Speaker 2: jump on it. Then it's quite puzzling. The other thing
Speaker 2: is is that, yeah, lawsuit is going to take a
Speaker 2: long time. And the other hand, there's no other alternative.
Speaker 2: We can't march into EPA and hold guns to their heads.
Speaker 2: You know, they're going to do what they're going to do,
Speaker 2: but we have to compel them. They could, in fact,
Speaker 2: because of fear of the lawsuit, or because of a
Speaker 2: ground swell of support for the lawsuit, decide that they
Speaker 2: made a mistake and maybe they ought to revisit this,
Speaker 2: and maybe they would open up a work group and
Speaker 2: they ought to hold some more public hearings and find
Speaker 2: out what people really think. So that's basically what I
Speaker 2: have to say that, as far as I know, I
Speaker 2: can't think of any other mechanism because they still need
Speaker 2: a legal mechanism to deal with the fossil fuel companies,
Speaker 2: to deal with emissions, and this is the only one
Speaker 2: I see. It's what it was designed to do. TOSCO
Speaker 2: was designed to fill in when other authorities weren't working.
Speaker 2: And if there was ever a situation where other authorities
Speaker 2: weren't working, it's climate change.
Speaker 4: Yeah, there's no question, but that we know what needs
Speaker 4: to be done, and so does the agency. So I mean,
Speaker 4: it is embarrassing to have to point this out, but
Speaker 4: to have hid behind the type of that they are
Speaker 4: doing enough already when they know that that is not true.
Speaker 4: That's not a position that the United States and the
Speaker 4: Agency need to retain. The Agency has a track record
Speaker 4: to its credit of sometimes reconsidering past preliminary decisions or
Speaker 4: past decisions in the light of new evidence and new information.
Speaker 4: And here there is new information they have the standard wrong.
Speaker 4: And the United States now has a new strong position
Speaker 4: with respect to the need to do something serious about
Speaker 4: fossil fuels and greenhouse gas emissions. And there's the information
Speaker 4: that the international system under the Unit Nations FREMEW or
Speaker 4: Convention on Climate Chain is going to be ineffective on
Speaker 4: these central questions unless some major nation or group of
Speaker 4: nations takes leadership. The combination, for example, of the United
Speaker 4: States and the European Union could provide just that leadership,
Speaker 4: but it needs to be more than words. And so
Speaker 4: here the United States could match its rhetoric by an
Speaker 4: example by making itself an example of good behavior to
Speaker 4: seriously address the crisis.
Speaker 5: I understand why fossil fuel companies don't want to do
Speaker 5: anything about climate change. But I don't understand why the
Speaker 5: EPA would be citing the idea of doing something.
Speaker 4: About it, I should say. On the other hand, however,
Speaker 4: the statute was used for just this purpose, to commence
Speaker 4: the phase out of florocarbons CFC's, and under a rule
Speaker 4: promulgated by the agency, I think, even without a citizen's petition,
Speaker 4: but I'm not sure about that where they so yeah,
Speaker 4: so there you go, don I mean, back in nineteen
Speaker 4: seventy eight, the agency was able to act even without
Speaker 4: a citizens group coming forward, and they did it for
Speaker 4: two reasons. The principal reason that they cited in their
Speaker 4: draft rule and their fin rule was to address a
Speaker 4: potent ozone depleting chemical CFCs, because there was concern they're
Speaker 4: still concerned, but now we've started to address it substantially
Speaker 4: that the ozone layer was thinning and was going to
Speaker 4: lead to serious environmental and public health consequences. But number two,
Speaker 4: they said in their rule that they were doing this
Speaker 4: because CFCs are a potent global warming forcing agent. And
Speaker 4: so there you go. You have a administrative precedent using
Speaker 4: the same statute against a greenhouse gas that is, you know,
Speaker 4: distributed worldwide, and so it's it's a tremendous precedent from
Speaker 4: which the agency can build.
Speaker 2: I have a lot of friends at DPA, and hopefully
Speaker 2: when this is all over, I'll still have a lot
Speaker 2: of friends at EPA. But the thing Touring Member is
Speaker 2: is that EPA isn't a monelith. I mean, there's lots
Speaker 2: of different patents there. And I would bet that ninety
Speaker 2: percent of the employees there in staffers because those guys
Speaker 2: they're working at EPA, most of them because they're environmentalists,
Speaker 2: would love to do this. But I think this was
Speaker 2: a political decision that we have the IRA we can
Speaker 2: ease off a little bit now. And I believe that
Speaker 2: we weren't given a fair trial in the agency, and
Speaker 2: the decision was made beforehand that we need to find
Speaker 2: a way to shut this down. And they found a
Speaker 2: bunch of reasons. And that's why the reasons aren't very good,
Speaker 2: because there are no good reasons.
Speaker 4: It's one other thing that's worthy of mention because they
Speaker 4: mentioned it in their letter rejection and they say that
Speaker 4: this is not one of our major reasons. But we
Speaker 4: also want to say that were severely underfunded.
Speaker 5: I was just gonna say that I've heard this about
Speaker 5: the methane rule too, and I know Senator of White
Speaker 5: House has already brought this up, like, Hey, this new
Speaker 5: and improved and much more stringent rule is great, but
Speaker 5: it's not going to mean anything if we don't have
Speaker 5: the resources to actually for it. And I think that
Speaker 5: that is kind of a recurring thing that you do. Right.
Speaker 5: They need to be funded and staffed enough to actually
Speaker 5: enforce these laws.
Speaker 2: Every time there's a new administration, they scramble everything they do.
Speaker 2: They basically says, all right, these are our new priorities.
Speaker 2: You guys aren't doing this. You guys are now doing that,
Speaker 2: and they spread around resources and you've got to triage this.
Speaker 2: You have to say, what's the biggest risk facing the
Speaker 2: American people at.
Speaker 3: A globe right now?
Speaker 2: And it's climate change, And you know, we're going to
Speaker 2: just stop doing some of these other things even though
Speaker 2: they're mandated by law, because this is mandated by law too,
Speaker 2: and it's way more important.
Speaker 4: Yeah, And what they have been doing and what they're
Speaker 4: planning to do pales and importance with this overriding question.
Speaker 4: And so you know, if it's necessary for them to
Speaker 4: get additional resources to undertake this rulemaking, which I'm not
Speaker 4: quite sure it is, but if it is necessary, well,
Speaker 4: then they should seek a budget augmentation for the purpose
Speaker 4: or reallocation for the purpose. We can't let something as
Speaker 4: parochial or as basic as whether the agency has the
Speaker 4: resources to do in adequate rulemaking. Particularly this problem has
Speaker 4: been studied so much by the US government and by
Speaker 4: other agencies and by private organizations, and every single national
Speaker 4: Academy of science is on the planet. You know, we
Speaker 4: can't let that impair us from acting well.
Speaker 5: And also, isn't it true that getting on top of
Speaker 5: this would also get on top of so many of
Speaker 5: the other airpoints that APA has to deal with too, right,
Speaker 5: I mean, it's not like these are mutually exclusive things.
Speaker 4: No, And we point that out in our Magnus opus,
Speaker 4: the part two of our petition that you know, just
Speaker 4: from particulates alone, it's a substantial threat to public health.
Speaker 4: I mean, we're already overdue. We will be stemming far
Speaker 4: worse problems with respect to global warming and ocean a certification,
Speaker 4: the potential collapse of the food web, the you know,
Speaker 4: tremendous imposition on human and natural systems, including agriculture, and
Speaker 4: the potential loss of major cities along the coastlines, including
Speaker 4: in the United States. So yeah, we're in it for
Speaker 4: a world of hurt unless we get serious, and this
Speaker 4: is the most straightforward way we know of doing it.
Speaker 1: That's it for this time. I'll be posting updates on
Speaker 1: these cases as they happen to our website at Drilled
Speaker 1: podcast dot com and possibly to the podcast feed as well.
Speaker 1: Make sure that you're subscribed to our newsletter at Drilled
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Speaker 1: we'll see you next time. Drilled is an original Critical
Speaker 1: Frequency production. Our producer is Sarah Ventry. Sound design, mixing
Speaker 1: and mastering are by Peter Duff, who also wrote our
Speaker 1: original score. Our First Amendment attorney is James Wheaton at
Speaker 1: the First Amendment Project, and the show is reported, written
Speaker 1: and hosted by me Amy Westervelt.