Environmental Protection Agency | Environmental Law Institute

Developments May Influence Track of Chesapeake Bay Restoration Job Trajectory

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Author

Linda K. Breggin - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2021

Issue

Chesapeake Bay restoration efforts are at a critical juncture. The country’s largest estuary is both environmentally significant (estimated to support over 3,600 plant and animal species) and economically important (valued at over a trillion dollars by a blue ribbon panel). But a recent University of Maryland report card gives the bay a “C” health score, based on 10 indicators that include dissolved oxygen, nitrogen, and phosphorus. The score reflects only a “slightly improving trend” over the last 35 years.

Whether progress can ramp up will hinge on the resolution of a bevy of recent developments, all of which highlight the governance challenges that mark the decades-long cleanup effort. To succeed, restoration efforts require not only interstate coordination among the watershed jurisdictions — Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia — but also federal and state partnerships, as well as collaboration with the watershed’s 1,800 local governments. Add to the mix private environmental governance initiatives which involve businesses and households doing their part, and the landscape is even more complex.

Today, watershed restoration efforts are governed, in part, by an EPA Total Maximum Daily Load level that sets out pollution reductions for nitrogen, phosphorus, and sediment designed to “ensure that all pollution control measures needed to fully restore the bay and its tidal rivers are in place by 2025.” In addition, the TMDL is supported by an accountability framework that includes “rigorous accountability measures to ensure cleanup commitments are met, including short- and long-term benchmarks, a tracking and accountability system for jurisdiction activities, and federal contingency actions that can be employed if necessary to spur progress.”

However, EPA’s assessment that the most recent Pennsylvania and New York Watershed Implementation Plans, known as WIPs, fail to achieve their cleanup commitments quickly laid bare the complicated governance dynamics at hand. This is not the first time that Pennsylvania — the state responsible for almost half of the nitrogen and a quarter of the sediment that enters the bay — has lagged behind. An implementation funding gap is causing additional consternation.

In the absence of EPA follow-up, the Chesapeake Bay Foundation and its partners, as well as several state attorneys general, filed lawsuits to require the federal agency to take actions to ensure the plans will achieve the required nutrient reductions and water quality goals. The litigation is pending.

Another developing situation involves the Conowingo dam WIP that was developed when it became clear that the reservoir behind the dam was reaching capacity and could not continue to trap sediment and nutrient pollution — a situation that could lead to “catastrophic events,” whereby “large slugs of pollution” escape into the bay, according to the CBF’s Jon Mueller. EPA has flagged several concerns, noting its lack of confidence that the plan “will be fully implemented to meet the necessary nitrogen reductions without dedicated funding mechanisms in place” — a concern that remains unaddressed.

Also in flux are the Biden administration’s overall efforts to chart a path forward in the wake of the prior administration’s efforts to eviscerate bay restoration support and clean water regulatory protections. Mueller points out that “bedrock” pieces of the federal regulatory scheme that were undermined during the last administration need to be in place for restoration efforts to succeed, citing the Waters of the United States rule as an example. In addition, according to Mueller, “It’s crunch time if we are going to meet the 2025 targets,” and that means the administration needs to quickly fill high- level government positions, in order to achieve necessary policy changes.

Another potential game changer is a recent Maryland court decision that the state is required to regulate air emissions of ammonia as a water pollutant pursuant to the Clean Water Act and state law. The court explained that millions of pounds of manure generated by concentrated animal feed operations release ammonia, which is blown out of poultry houses by industrial fans to settle on nearby land and water, “causing significant pollution to the bay.” The opinion is stayed pending appeal.

Also subject to a recent stay order is a Maryland county’s lawsuit against fossil fuel companies seeking to hold them liable for “climate crisis-caused environmental changes,” including costs incurred for measures to protect the bay’s “fragile ecosystems.” The case follows similar actions brought by Baltimore and Annapolis that are winding through the courts.

These myriad pending policy, budget, personnel, and judicial decisions make the trajectory of bay restoration murky for now — hopefully they will resolve in a manner that allows cleanup efforts to rush forward rather than stagnate.

Developments May Influence Track of Chesapeake Bay Restoration Job Trajectory.

An Insightful History, 40 Valuable Prescriptions

Read more about An Insightful History, 40 Valuable Prescriptions

Author

G. Tracy Mehan III - American Water Works Association

American Water Works Association

Current Issue

March-April 2021

Issue

No one will miss 2020, but two books deserve mention as we bid farewell to that annus horribilis. The Yale Environmental Dialogue, under the leadership of professor Daniel C. Esty, pulled together a cavalcade of experts from every discipline and field imaginable, and from varied political perspectives, to produce a comprehensive collection of essays on every conceivable topic relating to sustainability — ecology, environmental justice, Big Data, public health, land protection, agriculture, economics, urban policy and, very prominently, climate change, all with an emphasis on actionable recommendations.

Edited by Professor Esty, A Better Planet: 40 Big Ideas for a Sustainable Future features contributions by such luminaries as Nobel Prize-winning economist William Nordhaus; Jane Lubchenco, former director of NOAA; Thomas Lovejoy, the “father of biodiversity”; and Susan Biniaz, the former lead climate lawyer for the State Department, who helped negotiate the Paris Agreement. Your reviewer was honored to contribute an essay on water reuse (“Found Water: Reuse and the Deconstruction of ‘Wastewater’”).

Indy Burke, Dean of Yale’s School of Forestry & Environmental Studies, has described the urgent need for seeking common ground amidst current “political division and deep disagreements over core principles” in order to meet contemporary environmental challenges. Says Dean Burke, “We have to do the hard work of bridging these divides.” That is the rationale behind Esty’s Yale Environmental Dialogue and the publication of A Better Planet.

While the Yale project is exciting, forward-looking, and innovative, William and Rosemarie Alley seek to document the historic successes of and current challenges to EPA, the world’s premier environmental agency. In The War on the EPA: America’s Endangered Environmental Protections, the authors write that “in point of fact, never in the EPA’s history has there been a time when anything was simple.” In other words, EPA has always been engulfed in controversy and, given the nature of its role as regulator, caught in a perpetual cross-fire between environmentalists and various regulated sectors in an endless round of regulation, litigation, re-regulation, and legislative interventions. “Virtually everything that the EPA has accomplished has come out of the crucible of intense controversy,” observe the authors. “Even in the best of times, it’s remarkable that anything gets done.”

The Alleys have written a well-researched, articulate, and wide-ranging survey of environmental issues spanning the entire history of the agency. They combine William’s scientific expertise (he was chief of the Office of Groundwater for the U.S. Geological Survey) with Rosemarie’s professional writing skills to offer the reader a very fine and fluid narrative through technically and legally dense subject matter. It would be great supplemental material for an environmental policy or law course. Lawyers looking for a broader perspective, beyond their specialty, and a brief history of environmental regulations and the battles over same, would also benefit.

The Alleys manage to say something interesting on a long list of topics: wastewater and drinking water issues, Superfund and the Resource Conservation and Recovery Act, clean air issues and New Source Review, Waters of the United States, unregulated agricultural nonpoint-source pollution (“a wicked problem”), toxic chemicals, the Clean Power Plan, “secret science,” you name it. Their overview of the complex interaction between geology, groundwater, and toxic chemicals in the environment — along with a succinct description of the evolution from “pump and treat,” ad infinitum, to remediate contaminated groundwater to a more effective bioremediation and in situ treatment — is informed yet intelligible to the non-specialist reader.

It is no criticism to say that they have also written a polemic targeting, in order, President Trump, his former EPA administrators Scott Pruitt and Andrew Wheeler, and several Republican presidents and members of Congress, including but not limited to Ronald Reagan, Newt Gingrich, and George W. Bush. They do not entertain substantive counter-arguments to EPA’s positions or take them seriously. There are good guys and bad guys, period. Still, one may not agree with the polemic but recognize its power and efficacy in making a policy or political point. Cicero and Augustine would approve. But the reader should be forewarned.

The authors lament that science, EPA, and environmental regulation are embroiled in controversy and even disfavored in many quarters. They note the budgetary pressures the agency has experienced over many years, especially the lack of support in the Trump administration. (Congress declined the more extreme cuts.) They want to re-invigorate EPA’s regulatory agenda and deal with a variety of issues: toxic chemicals, “forever chemicals,” climate change, and a moribund Superfund program.

“The long arduous course of scientific study requires considerable time and patience. . . . For Superfund (and other EPA programs) to be effective, the agency not only needs good scientists and lawyers, but also good communicators, listeners, and decisionmakers with high ethical standards,” claim the Alleys. “To accomplish all this, the bottom line is that EPA needs adequate funding and a favorable work environment to attract a capable and committed work force.”

The authors of The War on the EPA describe a daunting set of circumstances having as much to do with the American public’s current skepticism about the federal government as much as the agency. According to the Pew Research Center, “During the . . . George W. Bush administration and the presidencies of Barack Obama and Donald Trump, the share of Americans who say they trust the [federal] government just about always or most of the time has been below 30 percent. Today, 20 percent say they trust the government.” Additionally, “While the share of Republicans who trust the government has increased during Trump’s time as president, only 28 percent say they trust the government, compared with 12 percent of Democrats.”

Different constituencies distrust the feds for different reasons. But this is in stark contrast to 1958, the first year Pew enquired on the matter, and 73 percent expressed trust in the federal government. This is a fundamental shift in the American psyche, and EPA is collateral damage.

This distrust is aggravated by political polarization. As reported by Max Rust and Randy Yeip in The Wall Street Journal (“How Politics Has Pulled the Country in Different Directions,” November 10, 2020), “If it feels like Republicans and Democrats are living in different worlds, it’s because they are.” Rust and Yeip say, “There are few places left in America where one tribe of voters is likely to encounter the other.”

What, if anything, can be done about this state of affairs, at least as it relates to environmental policy? Returning to A Better Planet, Daniel Esty’s essay “Red Lights to Green Lights: Toward an Innovation-Oriented Sustainability Strategy” may be helpful. While recognizing the undoubted success of the command-and-control regulatory strategies of the 1970s and 1980s — red lights for polluters — that “framework has proven to be incomplete. It has failed to offer signals as to what society needs businesses to do, including what problems to solve, what research and development to undertake, and what investments to make.”

Moreover, the original paradigm came at a price. It was slow and inefficient “insofar as the government does almost all of the environmental work.” Indeed, “This over-reliance on government as the central (and often sole) actor also leads to high costs, avoidable inefficiencies, constant litigation over standards, and disincentives for innovation,” argues Esty.

The old approach did not spur transformative change or engage the business community and financial markets as problem solvers. The red-light model does not drive entrepreneurial zeal.

What is needed to address contemporary challenges is “a systematically designed structure of incentives to encourage innovation and problem solving. In short, we need to complement our system of red lights with an expanded set of green lights,” writes Esty. This entails adoption of the polluter-pays principle and the “end to externalities,” i.e., “those who inflict environmental harms on society must pay for them.” Polluters need to be charged for their emissions or other negative impacts. Such “harm charges” would send price signals for the need to remake products or production processes.

Just as those generating negative externalities should pay, those generating positive externalities, or benefits to society, should be compensated, e.g., private landowners whose property provides habitat for endangered species.

Esty’s idea is not new, but it needs to be recalled and taken to heart by policymakers.

With a new administration taking over the executive branch, will Congress be able to come to grips with an environmental statutory regime almost a half century old and provide EPA and other agencies with the tools they need to turn red lights into green? We hope for the best.

An Insightful History, 40 Valuable Prescriptions.

Complainant Rights and Civil Rights Act Title VI

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Author

Tseming Yang - Santa Clara University

Santa Clara University

Current Issue

November-December 2020

Issue

Parent Article

The Debate: Racial Justice Means Environmental Justice

Our Debate asks us to address what can be done to achieve environmental justice in a practical manner at this point in time. My choice would be to provide EJ communities with rights to participate substantively in EPA’s Civil Rights Act Title VI enforcement program, including in claims investigation and internal appeals.

There are of course bolder and farther-reaching steps that could be suggested: legislation reversing the Supreme Court’s decision in Alexander v. Sandoval and restoring a private right of action under Title VI; reorientation of our environmental statutes toward sustainability, climate change, and global environmental challenges; and ultimately, incorporation of a rights-based perspective into our environmental law system, one that recognizes that individuals and communities have a right to a clean and healthy environment not subject to discretionary decisions of the government. Short of such radical “best” solutions, however, second-best reforms focused on the Title VI civil rights enforcement processes will go a long way.

Under Title VI recipients of federal funding are prohibited from engaging in discrimination on the basis of race, color, or national origin. EPA’s long-standing implementing regulations prohibit both intentional discrimination as well as disparate-effects discrimination. To ensure that recipients of EPA funding comply with Title VI and the regulations, the agency has instituted an administrative process to investigate and enforce alleged violations.

At present, communities bringing Title VI complaints to EPA have no substantive right to participate in the ensuing investigation and enforcement process. The agency itself has noted that “EPA does not represent the complainants, but rather the interests of the federal government” in that endeavor. As a result, communities are relegated to being mere passive bystanders in a process that directly implicates issues vital to their lives, health, and well-being. Allowing communities to participate as a matter of right, including in appeals within the agency, would significantly enhance their ability to hold the agency accountable for its implementation of federal anti-discrimination mandates.

Undoubtedly, EPA’s implementation and enforcement of Title VI has had a troubled history. In spite of the frustration that just about everybody has experienced with the program, activists and agency officials alike, the program remains crucial to advancing environmental justice. It is one of the few formal mechanisms that brings a civil rights perspective to environmental regulation and thus sits right at the intersection of all that is difficult about environmental justice. And with its coverage of state and local regulators that receive federal funding, principles developed in EPA’s Title VI program directly and indirectly influence environmental justice policy everywhere.

Giving communities a right to shape factual and legal determinations, especially the ability to challenge agency findings that are incorrect, would fundamentally alter the role of complainants. It would force agency officials to explain decisions regarding its investigative processes and enforcement decisions — likely uncomfortable and awkward for decisionmakers, but also not novel. Polluters who are the targets of environmental enforcement processes, as well as EPA funding recipients who may be the subject of a Title VI complaint, all have well-established rights to challenge agency administrative decisions. Putting EJ communities on the same legal footing is long overdue.

Finally, granting complainants a substantive role in EPA’s administrative process would open up a formal channel for exploring what it means for the agency to pursue environmental equity and to prevent discriminatory effects in providing a clean and healthy environment for all. Such a public dialogue has largely been choked off because there have been few opportunities for EJ communities to bring to bear a civil rights perspective on the Title VI program. And with pressure absent to articulate applicable principles, agency officials have had little incentive to tackle the most difficult questions of environmental equity and discrimination — how to ensure that marginalized communities are protected while pursuing other statutory objectives. That has left law and policy on how civil rights laws apply in an environmental context underdeveloped. Instead of shying away from these difficult questions, however, the agency should embrace that challenge.

The late Luke Cole used to write about community empowerment as the touchstone of EJ lawyering, and communities making decisions for themselves as a key tenet of the movement. Regardless of one’s agreement with his prescriptions, his views were based on a fundamental environmental principle that has now emerged widely across the world — regardless of racial, ethnic, or economic marginalization, the right to a clean and healthy environment is inherent to the dignity of all persons and communities. It is not bestowed by the government as a revocable privilege and should be controlled by communities themselves, not by the government or others. According them a substantive role in EPA’s Title VI investigative and enforcement program would be an important step toward that end.

Tseming Yang is professor of law at Santa Clara University School of Law.

Environmental Justice Faces Fresh Obstacles

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Author

Scott Fulton - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2020

Issue

As the country wrestles with racial justice issues, driven both by police atrocities and the uneven distribution of COVID-19 infection and deaths, it’s time for renewed focus on environmental justice. The quest for EJ remains perhaps the most challenging unsolved problem in the environmental arena. And until we arrive at a place where environmental benefits and burdens are both more equally distributed across society, EJ will remain a problem that differentially compromises not only quality of life, but also health and resilience in the face of maladies like the coronavirus.

There are of course reasons that EJ is a hard nut to crack. Slavery, segregation, redlining, and other forms of discrimination have left us with a system for determining where people live and where polluting activities occur that has baked-in inequity. In such a system, trying to manage EJ in the context of downstream decisions like environmental permits can feel like the tail wagging the dog, with the dog being zoning, land use, and other local decisions that drive what-and-where choices and remain largely off-limits for environmental regulators.

This said, there is much that regulators can do to identify and mitigate environmental injustices, and 1994’s Executive Order 12898, titled ”Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” pushed in this direction, calling for all federal agencies to promote nondiscrimination in health and environment and to avoid “disproportionately high and adverse impacts” to human health and the environment affecting low-income and minority communities.

In 2011, when I was general counsel at EPA, we produced “EJ Legal Tools” — an assessment of the many mechanisms available to the agency to advance environmental justice. We did this to confront the claim of powerlessness expressed by some agency leaders. During that same era, EPA also introduced a mapping and information platform, “EJScreen,” to assist agency decisionmakers and permit applicants in identifying communities and factors where cumulative adverse impacts may occur. In short, there is much that can be done at an agency like EPA to advance EJ, and no doubt considerably more than has been mustered to date. A number of states, including most notably California, have equipped themselves with even better tools for identifying and ameliorating environmental hot-spots.

The National Environmental Policy Act, always decidedly less deferential to local land-use primacy, is designed to “assure for all Americans safe, healthful, productive, and esthetically and cultural pleasing surroundings” and promote intergenerational equity. Environmental impact assessment under NEPA has, for 50 years, included consideration of cumulative and indirect impacts on communities, and has required agencies to consider alternatives as well as impacts not within their direct authority or control. The interpretive guide used across the federal government for how to do this is the “Environmental Justice Guidance Under the National Environmental Policy Act” issued by the Council on Environmental Quality in 1997. The guidance expressly states: “Agencies should consider relevant public health data and industry data concerning the potential for multiple or cumulative exposure to human health or environmental hazards in the affected population and historical patterns of exposure to environmental hazards.”

It goes on to state, “Agencies should consider these multiple, or cumulative effects, even if certain effects are not within the control or subject to the discretion of the agency proposing the action.” Just last year, the Interagency Working Group on environmental justice created by the 1994 executive order published a “Community Guide to Environmental Justice and NEPA Methods” outlining best practices in effectuating the E.O. and CEQ’s guidance.

But CEQ significantly revised the longstanding NEPA regulations in July of this year, and has said that it will be withdrawing the EJ guidance as incompatible with the new regulations. The community guide also appears likely to be jettisoned, as it is tied to the existing NEPA regulations, many of which are now repealed.

Importantly for EJ purposes, in its final rule CEQ did away with the requirement that federal agencies consider the cumulative and indirect impacts of their actions, replacing this with a narrower definition of environmental “effects” based on tort-law “proximate cause” liability standards. And it expressly excluded analysis of effects that are not within the jurisdiction of the action agency to prevent.

It is far from clear that the new regulations and associated guidance will provide for a level of review similar to that currently used for EJ analysis. It rather appears that CEQ has largely deferred any consideration of EJ to some future date when individual federal agencies attempt to apply the new regulations and communities attempt to discern their rights in the absence of a specific regulation and guidance document.

In adopting the new NEPA rule, CEQ stated that it had acted in compliance with the executive order because its rule would not itself cause any environmental impacts: “It is in the agency implementation of NEPA when conducting reviews of proposed agency actions where agencies can consider, as needed, environmental justice issues.” And in its response to comments, CEQ said that if it withdraws the EJ guidance, this will “not create confusion” nor “reduce the quality of analysis.”

We shall see.

On obstacles to achieving justice.

ELI Report

Read more about ELI Report

Author

Akielly Hu - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2020

Issue

National Wetlands Awards: Digitally recognizing a half dozen exemplary stewards of our country’s natural history and heritage

Award for Business Leadership. Mark Beardsley is the principal of EcoMetrics and founder of Riparian Reconnect in Buena Vista, Colorado. He has 24 years of experience as an ecologist and geomorphologist, with a specialty in small streams, beaver restoration, monitoring and evaluation, and environmental ethics. Mark is also involved in Colorado’s stream management planning process and is coauthor of holistic stream and wetland health assessment methods including the Functional Assessment of Colorado Streams (FACStream) and the Colorado Stream Health Assessment Framework.

Mark is the founder and leader in Riparian Reconnect and Badger Creek Partnerships, two grassroots efforts to amplify process-based stream and wetland restoration and beaver-based solutions to Colorado headwaters. Starting from scratch, these programs have grown over 10 years to expand ecological restoration over about 30 miles of stream corridor and 500 acres of riparian and wetland habitat.

In addition to his work in stream and wetland restoration, he has also worked as a college biology and chemistry teacher, climbing guide, ski patroller, and avalanche forecaster. He draws from his experience in these diverse fields and scientific disciplines to bring fresh perspectives and creative approaches that draw on the power of natural processes and ecological health in planning Colorado’s water and environmental future.

He is described by his colleagues as an innovator in the concept of ecological health, and of restoration as a healing process, and empowering natural processes. He teaches that restoration projects are better approached as a healing process by diagnosing the causes of impairment, treatments, and ongoing care rather than as design-build exercises.

Mark has bachelor’s degrees in chemistry and biology, and a master’s in ecology, all from Colorado State.

Award for Scientific Research. W. Day Jr. is distinguished professor emeritus in the Department of Oceanography and Coastal Sciences, College of the Coast & Environment at Louisiana State University, where he has taught since 1971. He has published extensively on the ecology and management of coastal and wetland ecosystems, with emphasis on the Mississippi River delta.

Among his many publications, he is co-editor of Estuarine Ecology 2013, 2nd edition, a text that is widely used as a reference book for graduate-level education. He considers this to be his most important publication in terms of its practical impact. He has served as major professor for 70 MS and Ph.D. students and has written and edited 14 books and published over 400 peer-reviewed articles. His work has been cited nearly 24,000 times.

Professor Day received his Ph.D. in marine sciences and environmental sciences from the University of North Carolina in 1971, working with the noted ecologist H.T. Odum. Since then, he has conducted extensive research on the ecology and management of the Mississippi River delta, and for the last 40 years, has studied coastal ecosystems in Mexico. He has been a visiting professor with numerous international universities.

Day was recipient of a Fulbright Fellowship for study in France, the Estuarine Research Federation Cronin Award for excellence in teaching in coastal sciences.

Most recently, Professor Day worked in the Mediterranean studying the impacts of climate change on wetlands in Venice Lagoon and in the Po, Rhone and Ebro deltas.

Day is currently involved in research on the impacts of 21st century megatrends on sustainability of natural and human systems. He served as chair of the National Technical Review Committee studying the restoration program for the Mississippi River delta and is currently active in delta restoration. He is a member of the Scientific Steering Committee of the Future Earth Coasts program, an international coastal science effort.

Award for Youth Leadership. Trinity Favazza, age 13, has been an amphibian and wetland conservationist since 2016 when she became the Mayor of Amphibiville for the Detroit Zoo. Last year, Trinity was a guest speaker for amphibian and wetland conservation at Google Headquarters in San Francisco, California, and at the ACRS Symposium at Manchester University in Manchester, England.

Her statewide proclamation for an Amphibian Conservation Awareness Week was adopted by Governor Gretchen Whitmer in 2019. Shortly after that, Trinity began her project known as Action for Amphibians. This effort focuses on a three-prong approach to amphibian and wetland conservation. First, the project aims to raise social awareness through social media and to implement her Amphibian Conservation Rocks painted-rocks campaign. Second, she conducts field research to clean up local wetlands, to educate and inspire her classmates, and to collect valuable field data as a citizen scientist for FrogWatch USA. Third, Trinity hopes to raise political awareness for amphibian and wetland conservation statewide and nationally. This year, Trinity continues her conservation work by expanding the Amphibian Conservation Rocks campaign and running her amphibian conservation Instagram hub and conservation website.

Trinity’s primary goal is to inspire a new generation to contribute to amphibian and wetland conservation. One day, she hopes to make Action for Amphibians into a nonprofit organization so that she will be able to collaborate with and aid other conservationists around the world.

Award for Wetlands Program Development. Ted LaGrange has worked as the wetland program manager for the Nebraska Game and Parks Commission for 27 years. As wetland program manager he works on a wide variety of wetland issues throughout Nebraska, including partnerships, private land restoration programs, public lands management, research, regulations, and outreach.

Prior to moving to Nebraska, he worked for eight years as a Waterfowl Research Technician for the Iowa Department of Natural Resources.

Ted received B.S. and M.S. degrees in wildlife biology from Iowa State University. His professional interests are in prairie wetlands and waterfowl/water bird ecology.

Award for Local Stewardship. Sam Lovall has over 35 years of professional landscape architectural experience in design, construction, and grant writing for park, riverfront, trail system, urban planning, and environmental planning projects. Sam also teaches planning and landscape architecture classes for Michigan State University.

He was a project manager for numerous riparian planning projects in southeast Michigan including the development of master plans for the Rouge River Gateway, the Detroit River International Wildlife Refuge Gateway Site, and an opportunity assessment for the Lower Detroit River. Sam is serving Friends of the Detroit River as project manager, successfully completing the Great Lakes Restoration Initiative projects funded through NOAA at several locations.

His current work involves completing construction to restore Lake Okonoka on Belle Isle in Michigan, a project to reconnect Lake Okonoka to the Blue Heron Lagoon and bringing the lake online with the Detroit River. The project is designed by SmithGroup and included input from multiple stakeholders. Sam is also planning for habitat restoration on Sugar Island and at Hennepin Marsh in Michigan.

Award for Promoting Awareness. Robert Wade is a place-based educator who has worked in the Upper Feather River region of California’s northern Sierra Nevada for the past 25 years. As the outdoor education and science coordinator for the Plumas County Office of Education since 1995, he has designed, developed, and implemented successful and sustainable K-12 programs in the region, as well as built upon strategic partnership with over 32 agencies and organizations. In 2016, he helped launch the Next Generation Science Standards, an effort that takes outdoor education and stewardship mainstream through the Outdoor Core Mountain Kid K-12 collaborative. The collaborative supports teachers to integrate weekly outdoor learning adventures for students.

Robert holds a B.S. from the University of California-Berkeley in conservation and resource studies and an MA from the School of Education at the University of San Francisco.

Rob is a national facilitator and consultant supporting K-12 program development in the land trust community. He helped conserve 15 properties within a 10-minute walk of every public school, turn these properties into an active outdoor classroom, and provide teacher training and resources to use these sites regularly and independently.

Rob is the 2017 recipient of the Excellence in Environmental Education Award, presented by the California Environmental Education Foundation.

ELI in Action: Community lawyering workshop held online

In April, ELI and American University Washington College of Law co-sponsored a virtual workshop titled Community Lawyering for Environmental and Climate Justice.

The online event brought together experts to discuss how law can serve as a pathway for communities of color and other historically marginalized communities to access healthy environments, even in the face of harmful climate impacts. The workshop aimed to give multiple perspectives on tools to effectively advance environmental and climate justice. The panel discussion was moderated by ELI Environmental Justice Coordinator Lovinia Reynolds and William Snape III, assistant dean at the law school.

Experts participating in the digital discussion included Kari Fulton, an environmental justice advocate and National Urban Fellow of Georgetown University; Marianne Engelman Lado, director of the Environmental Justice Clinic at Vermont Law School; Vernice Miller-Travis, executive vice president of Metropolitan Group and Founder of WE ACT for Environmental Justice; Michele Roberts of the Environmental Justice Health Alliance; and Fred Tutman, CEO and Riverkeeper of Patuxent Riverkeeper.

Through storytelling and discussion, the panelists described their experiential takeaways on questions such as what the role of the community lawyer is in environmental justice, what skills a community lawyer needs, and lessons learned from past challenges and successes in community lawyering for those who are vulnerable to environmental injustice and climate change.

The discussion centered on a key takeaway: that a good community lawyer always asks local residents what their goals are and provides legal strategies based on their collective goals. More broadly, environmental justice should always be integrated into work meaningfully and stem from the needs of the residents.

The panelists helped identify areas of future work, such as integrating the topics of mental health and disability into community lawyering and environmental justice.

❧

In early April, ELI and Vanderbilt University Law School held the Environmental Law and Policy Annual Review conference. The yearly event brings together the authors of winning environmental law and policy articles and article commenters to present their ideas to an audience that includes business, government, think tank, and nonprofits.

Held virtually this year, the conference featured topics of addressing the cost of carbon dioxide emissions via FERC’s authority to ensure just and reasonable interstate wholesale electricity rates, improving SEC sustainability disclosure requirements, and imposing exactions on developers to incentivize investment in low-carbon energy supply and efficient buildings.

This year’s winning authors included Bethany Davis Noll and Burcin Unel of the Institute for Policy Integrity at NYU School of Law, Jill Fisch of University of Pennsylvania Carey Law School, and Jim Rossi and Christopher Serkin of Vanderbilt University Law School.

❧

In collaboration with Latham & Watkins, ELI continues its work on the China International Business Dialogue on Environmental Governance and hosted a webinar in April to provide policy guidance to multinational corporations affected by recent environmental regulatory changes put forth by the Chinese government. Topics of discussion included regulatory changes in response to the COVID-19 pandemic, as well as recent developments on hazardous chemicals, permitting, and enforcement.

The webinar featured speakers from both ELI and Latham & Watkins leadership teams for CIBDEG. Over 30 key participants joined the call, with at least 10 different MNCs identified (Koch, Pfizer, Chevron, Boeing, Danaher, Nouryon, Ford, ERM, Cargill, Owens Corning, USCBC) as well as two representatives of the Policy Research Center for Environment and Economy, a research institute affiliated with the Ministry of Ecology and Environment in China.

❧

In May, ELI and AECOM held a virtual masterclass on the multi-faceted opportunities and obstacles for stakeholders litigating and regulating PFAS in two of the most prominent points of transmission: water and packaging. The half day event began with an exploration of recent developments in a variety of states’ efforts to address these chemicals.

Leading experts from
AECOM and the government, nonprofit, and business sectors compared regulatory and litigation efforts at the state level as well as the implications for manufacturers.

The second panel focused on the environmental and human health impacts of PFAS- contaminated waters and the necessary approaches to regulate, establish, and enforce cleanups and safe drinking water standards.

A final panel worked to address a growing concern of the use of PFAS in packaging, and how companies can ensure safe use of their product.

National Wetland Award Ceremony Held Digitally

Staying on Course for Justice for All

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Author

Suzi Ruhl - Yale Medical School

Yale Medical School

Current Issue

September-October 2020

Issue

Navigating through the tail end of Hurricane Oscar in the North Atlantic two years ago, the international crew of our cutter fought off seasickness as we battled to stay on course toward the finish line off Madeira. “If we make it to Faro,” we shouted to each other during lulls in the gale, “we will be fine.” When my turn came at the helm, I held to a compass heading that would bring us down to latitude 37 and calmer water off the Portuguese port city, where we could lay in a course for the finish line. Instead of pressing on dangerously under a full suit of canvas, risking sails and spars for greater speed, we kept the main reefed and thus were able to safely make good headway in the rough seas. It was a good decision.

I have found through a lifetime of experience that sailing is an excellent metaphor for the adventures in reaching my longtime professional goal of “justice for all,” the central promise of the Pledge of Allegiance but a destination still beyond the horizon after all these years of environmental law. Everybody uses metaphors to organize their thinking, often drawing from sports like football and baseball. Making it to Faro by harnessing the wind no matter how it blows has become the destination in my professional life. Only from there can you actually set a course toward your goal.

The analogy between the environmental profession and the job of the mariner is a useful one. Ever resilient, sailors are constantly adjusting the rigging to get the most from the wind while avoiding unnecessary risk to the crew and ship. Staying on an even keel is important. They are careful to preserve and allocate food and water resources sustainably and manage waste responsibly. Safety is constantly in force underway. Both skipper and crew know their destination at all times. And they know how to make port even under contrary winds.

Indeed, I learned at the outset of my career in the 1980s that sailing the waters of environmental law and justice can be rough. As founder and president of the Legal Environmental Assistance Foundation, based in Tallahassee, I took to court EPA and other government agencies and multinational corporations as well. LEAF worked with communities burdened by pollution, disease, poverty, and crime. I learned from those most impacted by harmful emissions and discharges, as we made significant yet insufficient progress on our great circle course to environmental equity and justice.

Then, in 2009, when newly elected President Obama declared he wanted change, I joined EPA’s Office of Environmental Justice to become senior counsel. My professional mantra upon leaving public interest practice to join government — my sea chanty so to speak — started with, “For 20 years, I sued EPA,” and concluded on an up note, “Now I am going to work for them.” The lighthouse beacon guiding my government service became the personal voices of those who literally live and die as a result of agency decisions and actions. Their flashing signal patterns illuminated government systems and their actions that foster healthy, equitable, and sustainable communities and those that either intentionally or unintentionally perpetuate environmental injustices. The people we worked with who were affected by pollution were the first to know there was a problem and what was needed to solve that problem.

Yes, my metaphor helped me to see that and gave the point of sail to best capture the wind. That heavy weather sailing along the coast of Spain and Portugal to the northern coast of Africa, along with bareboating around equatorial islands, has taught me that in fact sailing has many lessons for professionals. My lifelong mission has been to work with those who in effect are finding environmental, health, and economic storms crashing over their decks with insufficient means of altering the set of the sails to make headway. Gaining a navigator’s skills in the law and in the science of epidemiology, including degrees in both, has enabled me to act as a pilot, helping citizens steer their communities toward greater equity and justice.

Now, as the challenges facing overburdened, underserved, and underrepresented communities escalate in horrific, relentless waves of heartbreak, especially as seen in the context of Black Lives Matter and the simultaneous COVID-19 crisis, I am again changing vessels, joining the research, service, and teaching crew at the Yale School of Medicine, Child Study Center and Elevate Policy Lab.

At this new waypoint in life, I am pulling together my collective experiences to reset my compass heading, prepare my passage plan, aiming always for the same destination: justice for all. All I know at the outset of this voyage is that it will require leveraging the lessons of the sea and of the men and women who venture out regardless of the weather conditions or a gloomy forecast, for resilience and sustainability are their working tools too.

The first lesson in sailing is to appraise the state of the sea — the wind, the waves, the swell, and weather patterns — when embarking on a voyage and during the passage. This lesson clearly applies to the trajectory of my career in environmental justice, a timeline of constant appraisals and course changes.

If there were a logbook on environmental protection and regulation of pollution since the 1980s, it would be revealing in its constant changes. The log would be a story of denial — a hesitancy to consider the real state of the sea and a rejection of that primary lesson. The first entries show the existence of pollution being denied. When pollution became acknowledged, exposure to people was denied. When pollution and exposure were acknowledged, impact to human health was denied. When pollution, exposure, and impact were acknowledged, the consequences to vulnerable populations — including communities of color, poor neighborhoods, and tribal-indigenous groups — were denied.

This phenomena of ignoring sea states and weather patterns is illustrated through a LEAF lawsuit whose resolution spanned four decades. In 1983, the Department of Energy admitted that it had released two million pounds of mercury from the Y-12 Plant at Oak Ridge between 1950 and 1977. The pollution flowed into the Tennessee River. Unknowingly, low-income rural families swam and fished in the river and a polluted tributary, East Fork Poplar Creek. In the period of denying pollution, elemental mercury was carried from the Y-12 plant by workers into their homes, exposing their families to harmful vapors. While government denied exposure, children who swallowed water during play in the brook were exposed to levels of inorganic mercury that could cause kidney damage, and residents ate fish from the polluted brook, risking the health of their brains.

When pollution, exposure, and impact could no longer be denied, children born to or nursing from women who ate certain species of fish from Poplar Creek were revealed as at increased risk of subtle neurodevelopmental health effects. When LEAF sued 37 years ago, arguing that DOE must comply with the Resource Conservation and Recovery Act, the department argued in court that application of RCRA to Y-12 was inconsistent with the Atomic Energy Act of 1954, which restricted dissemination of classified information pertaining to nuclear weapons and material. Action under RCRA, the department argued, would subject this information to public disclosure. In LEAF v. Hodel, the court held that the plant indeed is subject to RCRA, ruling that DOE had failed to demonstrate that compliance with the landmark statute would result in the disclosure of classified material.

Surprisingly, as an early porthole view into the operation of the federal government that would carry me through my time with EPA, most of the DOE managers and staff supported the decision and embraced the programmatic result: establishment of DOE’s Hazardous Waste Remedial Action Program to address dangerous materials at all of its facilities. This attitude toward the decision is also reflected in the department’s published “Nuclear Energy Timeline”: for the decade of the 1980s, DOE highlighted LEAF v. Hodel along with the “Berlin Wall is torn down. Many communist governments in Eastern Europe collapse.” To have LEAF recognized in the same space with the fall of communism instilled the same pride as does finding the island in the middle of the ocean.

Yet, as ocean currents flow year after year at the same speed and direction, so has been the DOE environmental challenge. Indeed, when joining EPA 26 years after we sued, the first environmental impact statement I reviewed was for the disposal of the hazardous waste from the Y-12 plant.

Invoking environmental justice, I raised the issue that one of the primary site locations was a few miles from a town in Texas that was predominantly Latino, and where the English proficiency was lower than 40 percent. Because Texas is a majority-minority state, the site was not considered to be an environmental justice community. We nonetheless proposed mitigation measures to address these disproportionate impacts, including translating critical documents into Spanish. The lessons learned from this decades-long legal action informed the development of an environmental justice analytical methodology for National Environmental Policy Act reviews.

Favorable sailing conditions were in play due to the leadership of the federal Interagency Working Group on Environmental Justice, or IWGEJ. In 2011, its 17 federal departments and agencies signed the “Memorandum of Understanding on Environmental Justice” and were included under Executive Order 12898, promulgated by President Clinton to establish environmental justice as a goal of the federal government.

The EO identifies NEPA as one of four areas of focus. As founding co-chair (along with the Department of Transportation and then DOE) of the NEPA Committee created in 2012, I worked with NEPA and EJ practitioners across the federal family. Our membership grew from 12 to 200 members, and we produced “Promising Practices for Environmental Justice Methodologies in NEPA Reviews.” This sea chart, along with the “Community Guide for Environmental Justice” and “NEPA Methods (2018),” advance consistent, effective, and efficient consideration of environmental justice under the foundational statute. Through the NEPA Committee, we now had a fleet of vessels recommitted to addressing environmental justice through a more collaborative, comprehensive, and efficient process.

Just as there are always more storms, rulemaking on NEPA now threatens to overwhelm progress. But, a boat sailing in a massive storm cannot stop, and we must call all hands-on-deck to get to a safe destination for all — to get to Faro.

Sailing lesson number two counsels that when underway in a storm, remember that the sea takes no prisoners. When sailing, failure to prepare and to account for real people, real places, and real conditions can kill you. Tragically, failure to account for unique conditions experienced by low-income, people of color, and tribal-indigenous populations is deadly. Pollution, natural and man-made disasters, unhealthy built environments, and lack of access to essential services are killing these populations at disproportionate rates.

At the outset of my career, I challenged the demand for a “dead body count approach” to justify environmental regulation of pollution. Acknowledging only mortality while ignoring morbidity and disability sets the stage for environmental devastation. Decades later, with COVID-19 on the loose, my greatest fear has come to fruition — we have the dead bodies as evidence of disproportionate impact and failure to protect health and the environment of overburdened, underserved, and underrepresented populations. COVID-19 cases by race and ethnicity show the incidence of the virus out of proportion to the percentage of the overall U.S. population — it is almost double for Hispanic, black, and American Indian/Alaskan Native populations.

A closer look by Centers for Disease Control and Prevention researchers shows that people with underlying health conditions were six times more likely to be hospitalized than those with no such conditions, and deaths were 12 times higher. Communities disproportionately burdened by pollution have long experienced higher rates of chronic disease. Now we see higher rates of COVID-19 hospitalizations and higher deaths as a result.

Many of the pre-existing conditions that increase the risk of death in those with the virus are the same diseases that are affected by long-term exposure to air pollution. A small increase in long-term exposure to the fine particles produced by burning fossil fuels, known as PM_2.5, leads to a large increase in the coronavirus death rate. Thus, the virus, through the same vicious cycle of denial and the dead-body-count approach experienced with environmental degradation, is thrust on the same overburdened, underserved, and underrepresented population. Now, my integrated law and public health degrees allow me to heave to under a storm sail and help rescue the multitudes drowning in this deathly sea. More rescue boats in the water would be a huge help. There are thousands of communities needing assistance.

The faces of this nightmare are made real in Lowndes County, Alabama, in the so-called Black Belt, where I have worked on environmental justice across the decades. Reading the horrific news that the rates of COVID-19 are higher in this rural, poor, African American population than in New York City, I recalled our long-ago community victory in stopping the permitting of a fly-by-night hazardous waste disposal facility when I was at LEAF. I see the face of the elderly African American farmer who was more knowledgeable about the conditions of the soil and groundwater than the Ph.D. experts representing the hazardous waste company. I remember this early lesson that the people impacted by pollution should be at the table from the beginning and throughout the decisionmaking process — they should be at the forefront in diagnosing the problems and designing the solutions, and should be part of the cross-training of all stakeholders.

While at EPA, I met families in Lowndes County who step outside their trailers into their own excrement because they lack effective decentralized sewer capacity. I hear the voice of government officials dismissing these health and environmental concerns, callously claiming that “these people would rather get sick twice a year and spend their money on cell phones then pay for the maintenance of a septic tank.”

But, from heartbreak to hope, we reef our sails to avoid the winds of injustice while rapidly propelling progress through the choppy waves. Recognizing that environmental challenges in rural communities were distinct from those faced by urban communities, the EJIWG established the Rural Communities Committee in 2015. With Lowndes County in mind, the working group advanced brownfields-to-healthfields and urban-to-rural agriculture as destinations for communities across Appalachia, Southern California, coastal Georgia, and the Black Belt.

The EJIWG recruited a crew of environmental justice bosuns across the federal family to join the impacted communities and a courageous state public health captain. Together, we navigated the waves of environmental, technical, financial, health, and governance challenges to overcome the underlying currents that had become excuses. As 100 families were on the verge of getting safe sewer systems, we began to celebrate. And then, the county that wanted a health clinic and truck stop but got only the truck stop started dying faster and faster from COVID-19. The huge swell of institutional racism buttressing the denial and the dead-body-count approach to environmental protection crashes over our deck. It is time for a better course to get us to Faro.

The third lesson all sailors must learn is that on ocean passages, carefully choose your vessel and know your coordinates and compass heading to get all passengers and crew safely to port. When I first opened LEAF in the early 1980s, there was no such thing as environmental public health protection. Regulation of pollution was a concept reserved for tree huggers. Ultimately, during my LEAF days and continuing throughout my career at EPA, my EJ colleagues taught me that environmental protection means “people impacted by pollution should live, learn, work, play, and pray in homes and communities where the air is safe to breath, water safe to drink, and land safe to touch.” Ultimately, they want their children and families to be healthy, their homes and neighborhoods to be safe from pollution and crime, and yet they also want to keep their jobs.

Fortunately, during my passage with EPA, I have crewed on voyages seeing significant progress along the rhumb line toward environmental justice that responds to the well-being of vulnerable children, adults, families, and communities. It has been inspirational to work with career and political leaders under multiple administrations to bust the myth that protection of the population in general is sufficient. A rising tide lifts all boats only works if everybody has a boat.

The notion that environmental protection only addresses natural resources such as air, water, and land has been debunked. Environmental assessments and related decisions that do not consider vulnerable subpopulations are no longer sufficient. That consideration includes multiple exposures and body burdens of those facing pollution, poverty, disease, and crime.

Because environmental statutes mandate protection of human health and the population as a whole, EJ professionals have expanded our focus to consider the built environment and access to essential services. We also have come to recognize that access to health care (physical, mental, social, spiritual), food security, transportation options, and physical activity are essential components of environmental protection. Natural disasters are escalating, wreaking disproportionate havoc on vulnerable and overburdened populations. Disaster response, recovery, and preparedness have thus become an environmental justice issue as well.

The trip to the far off but welcoming port of justice for all is far from over. Disastrously, now our progress is being rolled back with a return to denial and the dead-body-count approach for the most vulnerable of society. In such chaotic seas I have made a safe port on Long Island Sound and am embarking on a new ship to the same destination. It will be a challenging voyage under changing conditions.

The fleet comprising Yale Med’s Child Study Center and Elevate Policy Lab includes a stellar ship and crew making a direct impact for real people and real places through innovation and rigorous, evidenced-based approaches. That’s my newest vessel. Our compass heading aims for healthy children, mothers, and families living in communities safe from pollution and violence, as a pathway to economic and social mobility. Our passage plan is to disrupt the current against progress of intergenerational poverty, disease, and environmental degradation.

Getting to this destination comports with my life’s course thus far, given that psychosocial stressors are recognized as a fundamental environmental justice disproportionate-impact factor. Yale’s Elevate Policy Lab, which operates the Mental Health Outreach for Mothers Partnership, provides mental health care to disadvantaged mothers as heads of households and fosters collaboration with community organizations, health care providers, and government partners for systemic change.

Mariners are charged with ensuring that each sail on the vessel is drawing maximally at the same time, knowing that the set of each affects the other. At this point in my career, my course now requires achieving the best trim for each of three goals at the same time. We are simultaneously aiming at health, economic, and environmental challenges facing disadvantaged populations. In my triple-bottom-line justice approach, we are working with women experiencing toxic stress from food insecurity, transportation limitations, and domestic violence, helping to increase their capacity to improve their maternal mental health and help them meaningfully engage in government decisions that affect their lives.

We seek to dislodge the anchors that are the root causes of disparities, strengthen meaningful engagement of impacted populations, and improve measurable, cost-effective outcomes. We rely on the community-based experience that fills my entire career now, trusting that meaningful engagement of underserved, overburdened, and underrepresented individuals via all levels of government improves the health also of their communities as measured by the triple bottom line.

As we knew sailing from the northwest tip of Spain to an island off the coast of Africa, and as I know now after a lifetime’s experience, a boat making way in a massive storm cannot stop. In our metaphorical quest to extract from the law of the sea lessons to achieve environmental justice for all people, and for all communities, we must ensure that we first get to the calmer waters off Faro. Only when we get there can we shake out a reef and put the helm over for a course to the finish line. TEF

Environmental and health professionals can benefit by learning the story the sea has to tell about knowing your destination, bringing the whole crew on board, and making port despite stormy seas and contrary winds. What’s your metaphor for managing your career?

How Agency Science is Under Threat

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Author

Romany M. Webb - Sabin Center for Climate Change Law, Columbia University

Sabin Center for Climate Change Law, Columbia University

Current Issue

September-October 2020

Issue

Parent Article

Bottled Up

The Environmental Protection Agency has a tradition of scientific excellence. EPA has led groundbreaking research on acid rain, lead, chemical safety, and many other public health and environmental issues.

However, in the last four budget cycles, the Trump administration has proposed slashing funding for EPA research programs. When Congress has refused, administration officials have sought to prevent, hide, and discredit research in other ways. They have been remarkably successful despite the existence of agency policies designed to protect researchers against political interference.

Such interference would be antithetical to EPA’s mission to safeguard human health and the environment. As EPA’s Office of the Science Advisor rightly notes on its website, “The agency’s ability to pursue its mission . . . depends upon the integrity of the science on which it relies.” Scientific integrity requires objectivity, meaning that outside factors, including political ones, should not influence research. It also requires transparency, with research findings being communicated openly and in a timely manner, even if politically inconvenient.

The Silencing Science Tracker — a joint initiative of Columbia Law School’s Sabin Center for Climate Change Law and the Climate Science Legal Defense Fund — documents 295 federal government attempts to censor, block, or otherwise interfere with scientific research and discussion since President Trump’s election. While anti-science action has been widespread, occurring at no less than 22 federal bodies, EPA has fared worse than others.

Indeed, a quarter of all actions recorded in the Silencing Science Tracker have occurred at EPA, more than any other body. Of those, nearly two-thirds have targeted its climate change research programs, where scientists have been directed not to compile certain data, prevented from speaking publicly about their work, and had their reports changed by political appointees, among other things.

Many of the actions have limited public access to information about climate change, while others seek to cast doubt on the veracity of data that come to light. In February, Administrator Andrew Wheeler erroneously claimed that the modeling of climate impacts associated with high greenhouse gas emissions “is not reliable.” His predecessor, Scott Pruitt, falsely declared that there is a lack of consensus as to whether emissions even cause climate change.

The targeting of climate science is not surprising, given the Trump administration’s ongoing efforts to dismantle existing regulatory controls on greenhouse gas emissions. What is surprising, though, is the extent to which administration officials have been able to interfere with climate research and censor those conducting it. After all, EPA has a Scientific Integrity Policy that expressly prohibits “leadership from intimidating or coercing scientists to alter scientific data, findings, or professional opinions” and “suppressing, altering, or otherwise impeding the timely release of scientific findings.”

Unfortunately, however, many violations have gone unreported. Under EPA’s policy, whistleblower protections are available to employees who report “research misconduct,” but not to those who report other types of wrongdoing (e.g., censorship) and not to outside parties (e.g., contractors and grantees). Without such protections, many scientists are understandably reluctant to speak up.

In May, EPA’s Office of Inspector General published the results of an agency-wide survey in which 42 percent of respondents said they “do not feel comfortable reporting a potential violation of scientific integrity.” Commonly cited reasons for failing to report included “fear of retaliation, belief that reporting would make no difference, . . . and belief that politics and policy outweigh science.”

EPA scientists are clearly starting to lose heart, and with good reason. While Wheeler has vowed to “support them and their work,” in this case, actions really do speak louder than words.

The Debate: Can Virus Response and Pollution Fight Learn From Each Other?

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Author

Adam Babich - Tulane University

Stephen Harper - Intel Corporation

Vernice Miller-Travis - Metropolitan Group

Rena Steinzor - University of Maryland

Tulane University

Intel Corporation

Metropolitan Group

University of Maryland

Current Issue

September-October 2020

Issue

The Debate: Can Virus Response and Pollution Fight Learn From Each Other?

Environmental protection intersects with public health a considerable amount. Thousands of professionals work actively at the junction, protecting lives and livelihoods through measures to reduce exposure and resulting disease. It can be useful to draw lessons from one facet of the fight for life — and how society implements measures to counter a threat — for possible application in another.

The primary observation is that when thousands of lives are at risk, there can be an urgent response. That was true in the early days of environmental law, when Congress passed by huge majorities the signal statutes that are still at work today. But it has been 30 years since reauthorizion of the Clean Air Act despite the discovery that fine-particle pollution causes 100,000 deaths in the United States every year and the realization that climate change looms over humanity with the promise of even more death and destruction to come. A reauthorized CAA could tackle these problems more easily than the current law.

So those who work in the environmental field might envy the quick congressional action to combat COVID-19 and its economic effects, which hopefully will be contained in a year or so when a vaccine is developed — whereas the toll from air pollution and greenhouse gas emissions will continue to add up every year and will ultimately vastly exceed the deaths from the virus.

Another lesson is that when the crisis is clear, money is no object. After President Nixon refused to sign the Clean Water Act because of the cost, Congress enacted the law over his veto. Cost doesn’t seem to be a problem in enacting measures to fight the virus, either. Trillions of dollars have already been pumped into the U.S. economy.

Another lesson involves federalism. Fifty years ago, U.S. EPA led the fight for clean air and water, urging on the delegated states to carry out its legislative mandates through the regulatory apparatus. In the fight for turning the tide on the coronavirus, the situation has been reversed, as it has been the states in the lead enacting comprehensive measures to protect public health.

The Forum asked a quartet of experienced professionals from different sectors to shine a light on the common facets they observe, and to draw lessons from the fight against pollution for application in the coronavirus response and vice versa.

Environmental protection in large measure means protecting public health. Thousands of professionals work at safeguarding lives and livelihoods through measures to reduce exposure and resulting disease. It is important to draw lessons from one facet of the fight for life — and how society implements measures to counter a threat — for possible application in another. COVID-19 offers a prime example.

Discounting Benefits of Saving Human Life

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Author

Stephen R. Dujack - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2020

Issue

Environmental Protection Agency chief Andrew Wheeler proudly details the administration’s deregulatory record in a Newsweek opinion article published in late July. He frames his success story within President Trump’s January 2017 executive order requiring agencies to eliminate two regulations for each new one. While Wheeler touts the avoided costs, he doesn’t mention the avoided benefits the repealed rules would have provided.

EPA has surpassed the two-for-one goal, Wheeler writes. The agency has taken “five cost-saving deregulatory actions for every one regulation implemented. To date, we have finalized an estimated 64 deregulatory actions, saving an estimated up to $94 billion in regulatory costs, with an additional 39 actions in development projected to save billions more.”

But by definition eliminating rules will “reduce the regulatory burden” by saving on compliance costs. What Wheeler doesn’t mention is that the vast majority of environmental regulations provide benefits that exceed the expenditures. As former EPA Administrator Christie Whitman likes to point out by taking the long view, our system of environmental protection, expensive as it may be on the cost side, has provided immense benefits via improvements to public health and environmental quality while allowing the U.S. economy to prosper hugely in the half century since modern regulation began, making the measures exceedingly popular to the American public.

Wheeler as much agrees that regulation hasn’t undercut growth. His argument is that what might be called the missed benefits of reducing compliance costs haven’t been added to the calculus. However, he leaves out the fact that the benefits of reducing pollution also get eliminated by EPA’s new math.

Wheeler notes that criteria pollutants plunged seven percent in the president’s first three years, but those cuts occurred under existing authorities. In fact, Wheeler turned down the opportunity to lower ambient standards for PM₁₀, which is the most deadly criteria pollutant and which has not declined under Trump. Further, Wheeler’s policies for power plants and cars mean more PM₁₀ compared with the regulatory environment he inherited.

PM₁₀ has in fact been subject to a half century of tightening federal and state requirements, and considerable business and consumer spending to achieve gains in public health that Americans overwhelmingly enjoy.

Similarly, Wheeler takes credit for the fact that “92 percent of community water systems meet all health-based standards, all the time” without noting the achievement is the result of huge taxpayer investment at the federal, state, and local government levels. That investment hasn’t bankrupted America. Instead it has created cheap and safe drinking water as a basic civil right.

Let’s take the Clean Power Plan as an example of what the Trump administration opposes. The CPP “has public health and climate benefits worth an estimated $34 billion to $54 billion per year in 2030, far outweighing the costs of $8.4 billion” according to an Obama EPA fact sheet. The agency notes that if it could better monetize attributes of lessened climate impacts, the cost-benefit ratio would be even more appealing.

Nonetheless, Trump chose to toss out the CPP, justifying the action by reducing the benefits calculations. One way was to increase the discount rate. Economists use the discount rate as a homeowner uses a borrowing rate: to calculate the present-day value (as in a mortgage payment) of a future benefit (a house free and clear, typically in 30 years). By ramping up the rate, the worth of that house in 2050 loses significant dollar value when compared to present-day costs to finance it. The same applies to regulatory benefits achieved that year, coincidentally the target of many deep decarbonization proposals.

Another way was to not count the benefits to other nations due to reductions in emissions on U.S. soil. But why should the value of our actions to reduce a global threat not include all global beneficiaries? It makes no sense when the release of a ton of carbon dioxide spreads to all corners of the planet, causing worldwide effects, to only count the benefits of avoiding that ton that accrue to Americans.

Studying EPA’s revised estimates produced under the new administration, the Congressional Research Service found “the analysis reduced some estimates of the human health ‘co-benefits’ — that is, the benefits resulting from pollutant reductions not directly targeted by the Clean Power Plan.”

These co-benefits include valuable cuts in smog and particulates that the Trump EPA considers invalid inputs into climate change regulatory impact analyses. Thousands of Americans die every year from these pollutants. Reducing this number would provide billions in benefits that the Trump EPA ignores, even though the Clean Air Act requires the agency to reduce dangerous emissions. But pursuing those benefits would take the type of creative rulemaking — and public expenditure — that the administration is eliminating.

The benefits of reduced mortality seemingly don’t count these days. An article in The Hill commenting on EPA’s research into replacing the CPP notes that “a detailed examination of the analysis revealed that the [Trump replacement] regulation would lead to 1,400 more deaths per year than the CPP.” The agency then argued that since the CPP never went into effect, the real baseline is no rule at all, making the replacement automatically appealing. Like magic, the benefits of the Obama rule have disappeared.

Notice & Comment is written by the editor and represents his views.

Green Infrastructure Often More Effective, Less Expensive

Hundreds of studies on nature-based solutions to extreme events show that “green infrastructure” is often cheaper and more effective than engineered projects like dams, levees and sea walls, according to a new analysis.

Experts say federal and state governments should heed those findings and increase funding for natural landscapes and systems to reduce climate disaster risk. Solutions include floodplain restoration and “living shorelines” along vulnerable coasts and rivers.

The 44-page “Protective Value of Nature” report released this morning is a joint effort between the National Wildlife Federation and Allied World, a global insurance and reinsurance firm.

“The science is clear — both model-based studies and empirical evidence from around the world show that natural infrastructure can provide significant, quantifiable levels of protection for communities from natural hazards, and is often more cost-effective than structural infrastructure,” said Jessie Ritter, a study co-author and NWF’s director of water resources and coastal policy.

— E&E News

“Federal employees across multiple agencies said the administration was racing to complete a half-dozen significant [regulatory] rollbacks over the coming month. . . . Several agency officials said they were surprised that political leaders had shown no sign of letting up amid the pandemic.”

—New York Times, March 25

“Carbon taxes boost jobs”

A picture is said to be worth a thousand words, a metaphor that we are going to put to the test right now.

The picture in question is a page from the March issue of Scientific American, with the headline quoted above. Those four words are counterintuitive and bound to be irritating to opponents of regulation of greenhouse gases, who predict economic calamity if restrictions are made on firms’ ability to pollute. They have long argued that cutbacks will harm employment while bringing little environmental or public health benefit.

To test that thesis, two researchers put the details of the Green New Deal into the U.S. Energy Information Administration’s National Energy Modeling System to see what it projects on emissions and the employment market. The result is a series of tiny graphs whose message, despite helpful slugs and captions, takes some time to puzzle out.

A series of graphs show that “carbon dioxide emissons go down,” according to a subhead belying the critics. The first shows tons of emissions per year going out to 2050. The data demonstrate that under business as usual, emissions remain flat. But under a $25 per ton carbon tax, they plunge by more than two thirds. The magazine also shows a line representing a $60 tax. It parallels the $25 line but only offers a relatively small additional improvement compared to the lower tax. But the higher tax does result in roughly half the emissions compared with the lower tax, albeit at substantially higher cost to consumers. One can draw different conclusions depending on the choice of baseline.

The magazine then shows emissions at those two tax levels for four sectors. The message remains the same: the higher tax offers little in the way of additional tons negated, but either tax reduces emissions. For homes and businesses, a tax knocks emissions roughly in half. In industry, emissions are down by a quarter. Transportation, however, offers little improvement by 2050 with the $25 tax and strongly suggests that the higher rate is in order, as it will double reductions, modest as they may be.

The remaining images take up the analysis of what the two tax rates would do to the employment market, under the subhead “Jobs Go Up.” According to a caption, “Under a $25 tax, traditional energy-supply jobs, such as fuels or power generations, would decrease, but energy-efficency jobs — construction, manufacturing — would more than compensate, creating a net gain . . . of 4.2 million job years in 2050.” While energy supply jobs remain flat under a $25 tax, they fluctuate markedly at the higher tax rate, showing at first an increase in jobs and then a decrease. Energy-efficiency jobs, however, go up about the same — substantially — under either assumption.

A map of the United States introduces two final graphs, showing the gains or losses in jobs by region at each of the two tax rates. At either level, they present a daunting picture to government because the results vary widely. While under the $25 tax job gains in West South Central and East North Central zoom up, representing the Mississippi/Ohio River basin, gains are only roughly half as much in the rest of the country. And under the $60 tax, while those two regions remain the job leaders, employment is flat in East South Central and actually declines in the West North Central and Pacific regions.

According to another caption summarizing jobs by region, “A $25 carbon tax would add an extra 72 million job years . . . across all nine U.S. Census divisions, compared with business as usual. A $60 tax would add jobs, though not as many.”

Discounting Benefits of Saving Human Life.

The Transparency Rule Is Not at All About Science; It’s Propaganda

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Author

Craig M. Pease - Scientist and Former Law School Professor

Scientist and Former Law School Professor

Current Issue

September-October 2020

Issue

Just writing “Strengthening Transparency in Regulatory Science” makes me cringe. Ostensibly, this pending EPA rule would ensure that the data and models in agency science are available for reanalysis, replication, and validation. It’s hard to argue with that. Making data and models widely available is desirable, and entirely consistent with foundational principles of good scientific protocol and practice.

Yet this proposal has received near universal condemnation across science, including professional societies, journals, EPA’s own Science Advisory Board, and individuals like Michael Halpern, whose May blog post at the Union of Concerned Scientists website traces the genesis of this rule back decades to tobacco and fossil fuel lobbyists and attorneys. Some scientific data simply cannot be publicly disclosed, for reasons both formal (medical privacy, business trade secrets, FOIA exemptions, and national security) and informal (useful norms in the scientific community for data and model sharing and collaboration).

The methods that scientists use to ensure that data, models, and conclusions are correct and of high quality go far, far beyond transparency. Those methods consist of rules, protocols, norms of behavior, and conceptual models, all of which together constitute a system of scientific common law (with the goal of obtaining data and models that accurately reflect reality), parallel to the legal common law (with the goal of resolving human conflict, and promoting cooperation).

Scientific common law has evolved over time, building on the precedent of successful methodologies and knowledge, and extending and modifying those as scientific methods diversified and knowledge accumulated. These include formal rules and procedures (lab protocols to gather data, statistical protocols to analyze data, grant funding procedures, publication procedures). They also include informal norms that govern expectations for checking one’s own work (a critical line of defense), for collaboration, for data and reagent sharing (possibly with a scientific competitor), and ethical behavior. Even more critically, scientists should be skeptical of anything and everything, and ever alert to the possibility of bias and error.

Moreover, new data and new models need to be consistent with existing scientific knowledge. To appreciate the density, complexity, and nuance of the conceptual models that capture existing scientific knowledge, just flip through a contemporary college textbook on organic chemistry, molecular genetics, or control systems.

The scientific common law is complex, diverse, idiosyncratic, and extremely context dependent. It has evolved over literally centuries. And this government regulation is going to fix alleged deficiencies in the quality of scientific knowledge?

There comes a point when engaging disingenuous naysayers in debate accomplishes nothing, except making one complicit in advertising views that are flat out wrong. For some individuals, no amount of evidence or reason will ever suffice. Thus, over a century and a half after Darwin, it is a strategic mistake to debate anti-evolutionists. Similarly, it was a mistake in 1994, many decades after publication of unassailable science showing that smoking cigarettes causes lung cancer, for Congress to give those five tobacco company CEOs a televised platform to lie.

The transparency rule was promulgated to thwart environmental protection, to shape public opinion, and to further political ends. We should critique the transparency rule not as science, but as propaganda.

Skip the scientific critiques of the transparency rule, and just consult the literature on agit-prop (Edward Bernays), advertising (David Olgivy), marketing (Rory Sutherland), and how groups of people acting together regularly produce catastrophic distortions in financial markets (Charles Mackay). Inasmuch as the transparency rule is itself a work of fiction, quite appropriately so too are some of its best critiques (Aldous Huxley, Joseph Heller, George Orwell, Franz Kafka, and Ayn Rand).

That vast literature explains how public opinion gets shaped, how rational human cognition gets thwarted by subconscious and emotional appeals, how a meme gets passed from person to person, and how government institutions get captured and become corrupt. All this has very little to do with the core predicates of science — reason, evidence, and rational decisionmaking (albeit with effort and prone to error).

When scientists engage transparency rule proponents in debate, it is not an exercise in using evidence and reason to search for truth, but rather enlists the scientist in promoting the widespread public dissemination of views that are the antithesis of good science. The very title of this rule is a marketing ploy, casting a rule opponent as being opposed to a foundational principle of good science.

The transparency rule is an imposter. What is transparent here is the bad faith.

The Transparency Rule Is Not at All About Science; It’s Propaganda.

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