Speaker 1: In two thousand fifteen, under President Obama, the Environmental Protection
Speaker 1: Agency adopted National Ambient Air Quality standards that reduced the
Speaker 1: permissible amount of ozone in the air. But as under
Speaker 1: President Trump, the e p A has now extended the
Speaker 1: deadline for states to comply with the standards by at
Speaker 1: least a year, and now a group of fifteen states
Speaker 1: on the District of Columbia, led by New York Attorney
Speaker 1: General Eric Schneiderman, have brought a legal action seeking to
Speaker 1: overrule the e PAS delay. To talk with us today
Speaker 1: about the the e PAS delay and what of this
Speaker 1: rule and what this law, how this lawsuit is going
Speaker 1: to effect whether the e p A can do it?
Speaker 1: Are Charles Warren, a partner at Kramer Levin NF Talas
Speaker 1: and Frankel and Diane Cott's senior research fellow in regulatory
Speaker 1: policy at the Heritage Foundation. Chuck, let's start with what
Speaker 1: the e p A actually did here. What have they
Speaker 1: announced about this rule? Well, the only way the really
Speaker 1: announced was that they were delaying the designations of non
Speaker 1: attainment areas really for ozone when they were supposed to
Speaker 1: be done by October. They were putting it off for
Speaker 1: a year. To and I think you have to really
Speaker 1: just look at this a little bit. And what happens
Speaker 1: is that there was a new ozone standard set by
Speaker 1: the regulation in October where they lowered the standard for ozone.
Speaker 1: And what's supposed to happen then is that the states
Speaker 1: are supposed to designate areas that aren't attaining those standards,
Speaker 1: and then they have to take steps to make sure
Speaker 1: they can attain those standards. And so what the e
Speaker 1: p A did here was to say, instead of having
Speaker 1: to submit those plans by this October, they're delaying it
Speaker 1: for a year. UM. Not quite. The states have had
Speaker 1: to submit their designations, but the e PA isn't going
Speaker 1: to make a determination on whether e p A finds
Speaker 1: those attainment areas um And that he is correct though
Speaker 1: that the you know, there's a year delay, and that
Speaker 1: year delay has been um you know authorized under the
Speaker 1: Clean Air Act for UH the e p A administrator
Speaker 1: in instances where UH the administrator has insufficient information to
Speaker 1: make those designations chuck. The d C Circuit last month
Speaker 1: rule that the e p A could not delay the
Speaker 1: methane rules on the oil industry for three years, and
Speaker 1: on Monday ordered through it to enforce the methane rules.
Speaker 1: Is that precedent the court will follow in this case? Yes,
Speaker 1: I think they will because I think again, this is
Speaker 1: one of the this seems to be one of the
Speaker 1: standard operating procedures of the c p A where they
Speaker 1: don't actually try to change things right away. They try
Speaker 1: to delay. And I don't think even though there's some
Speaker 1: wiggle room there, I don't think. I don't think it's
Speaker 1: enough in this case for them to prevail in court.
Speaker 1: I think based on that methane decision and and and
Speaker 1: and the full court basically just this Monday said things
Speaker 1: have got to move forward nine to two, I believe,
Speaker 1: and so full DC Circuit Court. So I think they
Speaker 1: will um uh do the same thing in this situation, Diane.
Speaker 1: This rule was finalized a couple of years ago, and
Speaker 1: you know, you mentioned that under the Clear Act Clear
Speaker 1: Cleaner Act, there may be some ability for the e
Speaker 1: p A to need, you know, to delay things if
Speaker 1: they need more information. What more information is it that
Speaker 1: the e p A is now saying they need. Sure,
Speaker 1: then that's a good question. But let me just make
Speaker 1: one additional point, which is um with respect to the
Speaker 1: methane rule, uh, There's two tracks going on here with ozone.
Speaker 1: One is that the agencies and any agency can decide
Speaker 1: to reconsider a rule on its merits and whether or
Speaker 1: not they are going to issue a new or different rule.
Speaker 1: But I know, I know, I'm saying that this is
Speaker 1: the second track is in this instance where UM a
Speaker 1: part of the rule, that is the designation's process, is
Speaker 1: being delayed, but the other standard, the existing standard, is
Speaker 1: still in effect, and UM states, you know, still have
Speaker 1: to abide by that existing standard. But what is needed here,
Speaker 1: you know, is UM primarily two sets of information that
Speaker 1: it was problematic from the from the origination of the
Speaker 1: rule under the Obama Act. One is that we haven't
Speaker 1: when the rule, when this new standard was issued, UM,
Speaker 1: a great many areas of the country hadn't had come
Speaker 1: into a compliance with either the two thousand and eighth
Speaker 1: standard or standard, and so they imposed a new standard
Speaker 1: before we knew what the results were going to be
Speaker 1: of standards for which many many areas of the country
Speaker 1: had not even yet come into a compliance. Secondly, UM,
Speaker 1: many of the benefits that e p A claimed would
Speaker 1: result from this rule our consequence not of reductions in ozone,
Speaker 1: but in the reductions of particulate matter. The e p
Speaker 1: A has delayed implementation of a rule that would affect
Speaker 1: air pollution and lower the the limits for how much
Speaker 1: ozone can be in the air in the United States,
Speaker 1: and fifteen states, led by Attorney General Eric Schneiderman of
Speaker 1: New York, along with the District of Columbia, have sued
Speaker 1: the e p A to prevent the delay from happening.
Speaker 1: We've been talking with Charles Warren, a partner at Kramer Levin,
Speaker 1: Talas and Frankel, and Diane Katz, senior research fellow in
Speaker 1: regulatory policy at the Heritage Foundation, about the e PAS
Speaker 1: action and the state's lawsuit against it. Diane, before the break,
Speaker 1: we were talking about, UM, you know different ways that
Speaker 1: the e p A can either try to revise the
Speaker 1: rule or implement it. But and what we've seen with
Speaker 1: this e p A is a lot of attempts to
Speaker 1: delay rules rather than going through the process to revise
Speaker 1: them and do new ones. UM, why is it do
Speaker 1: you think that the e p A would delay this
Speaker 1: rule rather than if they don't like it, simply trying
Speaker 1: to revise it to make it more amenable to their
Speaker 1: view of how the rule should work. Well, they're doing
Speaker 1: both and every administration has the right where you know,
Speaker 1: any new administration, actually any administration has the right to
Speaker 1: review any rule UH and the administrative procedures acts as
Speaker 1: that if they want to replace it rule they may,
Speaker 1: they just have to go through the regular rulemaking procedure.
Speaker 1: And so the e p A and you know e
Speaker 1: p A s under other administrations are doing that. They're
Speaker 1: looking at rules that have UM in some cases very
Speaker 1: questionable premises and deciding whether or not the rule is
Speaker 1: going to stand. And in some cases some rules have
Speaker 1: and it in other cases, you know, looking at rules
Speaker 1: that that shouldn't are not warranted, have very you know,
Speaker 1: questionable UM premises and so ozone clearly falls into that
Speaker 1: that category. Now, as I as I mentioned earlier, the
Speaker 1: e p A with this particular rule has a couple
Speaker 1: of different ways UM to manage the rule, and one
Speaker 1: is to reconsider it, which they are doing. And the
Speaker 1: second is UM in the midst of the rule being
Speaker 1: in effect already UM what enforcement actions or what UM
Speaker 1: you know UM and actions for the going further into that,
Speaker 1: can they take UM or stop while they reconsider and
Speaker 1: so what's under reconsideration here um as I said, is
Speaker 1: that the benefits of this rule are not justified by
Speaker 1: the cost of the rule in any way, shape or form.
Speaker 1: The rule is going to cost, you know, several billion
Speaker 1: dollars a year, and virtually all of the benefits that
Speaker 1: are that the e p A identified as the rule
Speaker 1: having have nothing to do with those own chuck. We
Speaker 1: know that this is opposed. This rule is opposed by
Speaker 1: UH fossil fuel companies and other companies, and that prue
Speaker 1: It has made UH a name for himself by suing
Speaker 1: the e PA when he was in Oklahoma. Doesn't the
Speaker 1: Administrative Procedure Act require the e p A to do
Speaker 1: certain things like public comment and justifications before what prue
Speaker 1: It is attempting to do here, Sure, let me let
Speaker 1: me explain. Let me explain one thing the premise here
Speaker 1: that's been discussed, frankly, in my view, is is totally wrong.
Speaker 1: First of all, we're talking about these criteria pollutants such
Speaker 1: as OO zone in particulates, and the e p A
Speaker 1: has an obligation to set standards based on public health
Speaker 1: with an adequate margin of safety, and that means to
Speaker 1: protect the most vulnerable in the population. So these standards.
Speaker 1: The standards themselves have to be set based on scientific
Speaker 1: studies and impacts that it's going to have on vulnerable populations,
Speaker 1: and the standards themselves are not set on a cost
Speaker 1: benefit basis, and a lot of people like to say, oh, yes,
Speaker 1: you know, it's benefits and all that. There's Once the
Speaker 1: standard is set, then the question is how do you
Speaker 1: go about the meeting those standards. And those standards are
Speaker 1: met by through states setting a state implementation plan, and
Speaker 1: there they can look at ways to ameliorate what might
Speaker 1: be the economic impacts. But the problem that someone like
Speaker 1: prow It's going to have is that he goes he's
Speaker 1: going to go back to reconsider this standard and going
Speaker 1: through the Administrative Procedure Act, as you indicated June, he's
Speaker 1: gonna have a hard time justifying why they should change this.
Speaker 1: And that's why he uses these backdoor methods and tries
Speaker 1: to then say well, we're going to delay this, and
Speaker 1: we're going to keep delayed. Like you know, he talked
Speaker 1: about a one year delay. He might come in with
Speaker 1: a new delay. He tried the methane. He tried it
Speaker 1: two year delay and they said no, we're not going
Speaker 1: to do that, and I just think that in the end,
Speaker 1: they're not gonna be able to get away with it.
Speaker 1: They're gonna have to operate within the law and within
Speaker 1: the Administrative Procedure Act and follow the law. And if
Speaker 1: they're going to change the standards, they're going to have
Speaker 1: to justify those changes because they will be challenged and
Speaker 1: they may and I don't think they're gonna be able
Speaker 1: to justify it based on the public health impacts. And
Speaker 1: that's really what you have to look at here in
Speaker 1: these kinds of standards. Uh, you know, dan uh, the
Speaker 1: National Medical Association, the American Academy of Pediatrics, the American
Speaker 1: Public Health Association, the American Lung Association have all come
Speaker 1: out against congressional attempts to roll back uh this rule.
Speaker 1: And you know, doesn't that sort of indicate that maybe
Speaker 1: there there is at least a basis for this that
Speaker 1: should require the a p A to go through a
Speaker 1: full administrative process before they delay implementation exactly what it's doing.
Speaker 1: There's some confusion here among you guys about a two
Speaker 1: track process. Okay, So if if e PA wants to
Speaker 1: reconsider the entire um ozone knacks, you know, the five
Speaker 1: every five years. E p A is to review the
Speaker 1: standard for a variety of different pollutants and decide whether
Speaker 1: or not a stricter standard is necessary in this case,
Speaker 1: in two thous you know, for two thousand fifteen, they
Speaker 1: decided a stricter standard was necessary. Okay. E p A
Speaker 1: can reconsider that rule and that finding, which it is
Speaker 1: doing through the through procedures set down in the Administrative
Speaker 1: Procedures Act. Secondly, e p A under the Clean Air
Speaker 1: Act has the opportunity has the authority to delay implicmentation
Speaker 1: of the new standard in the in the face of
Speaker 1: uncertainty or questions about um whether the designation was correct,
Speaker 1: whether the standard was correct. I can read you, you
Speaker 1: know that part of the of the statute. I don't
Speaker 1: know why, you know. The attorney here doesn't seem to
Speaker 1: understand or be cognizant of what the what the statute says.
Speaker 1: It actually says that outright that such period may be
Speaker 1: extended for up to one year in the event the
Speaker 1: administrator has insufficient information to promulgate the designations. Let's let's
Speaker 1: let's let's Chuck respond to that, because we have about
Speaker 1: thirty seconds left. Where was his justification for doing that?
Speaker 1: Sure he can do that. Where is the justification? Is
Speaker 1: insufficient information he did he just said were extending it.
Speaker 1: I didn't see any justification for that, and uh, well,
Speaker 1: we'll see what they have to say. But I don't
Speaker 1: I don't see I don't see a justification at this point.
Speaker 1: Afraid we're gonna have to cut off our disagreement. There
Speaker 1: are thanks to Charles Warren of Cramer Levin and Diane
Speaker 1: Ketch of Cats of the Heritage Foundation for being with
Speaker 1: us