Air Date: Week of January 3, 2020

California has received 50 different waivers under the Clean Air Act since the rule was established in 1970. The rollback under the Trump Administration is the first time one of these waivers has been revoked. (Photo: Cindy Shebley, Flickr, CC BY 2.0)

2019 saw the rollbacks of more than 80 environmental rules under the Trump Administration. Critics say these changes could harm more than the climate: they'll llkely hurt business, the environment, and human health as well. Pat Parenteau, former EPA regional counsel and professor at Vermont Law School, joins Host Steve Curwood for an overview of some of the key regulatory rollbacks.

Transcript

CURWOOD: From PRX and the Jennifer and Ted Stanley Studios at the University of Massachusetts Boston, this is Living on Earth, I’m Steve Curwood.

During 2019 the Trump Administration rolled back or began to roll back more than 80 environmental rules, according to research by the law schools at NYU, Columbia and Harvard. And experts say these changes will harm the climate, the land, and human health. We don’t have enough time to cover all 80 plus rollbacks, but we asked former EPA regional counsel and Vermont Law School Professor Pat Parenteau to help us understand just a few of the most broad-reaching ones. Pat, welcome back to Living on Earth.

PARENTEAU: Thanks, Steve, good to be with you.

CURWOOD: So, we're here to talk a bit about the regulatory situation when it comes to environmental protection and almost all the moves rolled back protections. So, let's walk through some of these. What about the waiver that California has had under the Clean Air Act, pretty much since it was passed back in the 70s. It seems that the Trump administration wants to take that away. Why and what's the impact?

PARENTEAU: So, California has actually received 50 different waivers over the history of the Clean Air Act from 1970 on and never has a waiver that's been granted ever been revoked. So once again, the Trump administration is setting a precedent. In this case, of course, the wrong precedent. And California had adopted a rule that required a certain number of electric vehicles and low-emission vehicles in their fleet. And then other states are able to join with California's standards for fuel efficiency and emission reduction. And 13 other states have done so. And all of those states are now challenging the Trump administration's revocation of what we call the California waiver. It is probably the single most important rule for reducing greenhouse gas emissions on the books. It's a major, major reduction of pollution, not just carbon pollution, but other forms of pollution. And of course, it's promoting the new generation of vehicles that we're going to see increasingly. And that's in litigation, and the wisdom of the legal academy is that the Trump administration is probably going to lose that argument because the Clean Air Act does not authorize revocation of California waivers. Only Congress could do that. And there's very little indication that Congress would do that. So, we'll probably see in 2020, a decision from the courts on whether or not the revocation of the California waiver is going to be upheld, and the betting, as I say is, it won't be.

CURWOOD: One of the most recent of these rollbacks concerns the Waters of the United States or WOTUS Policy. Please give me a bit of this history and what's happening with it now.

PARENTEAU: Right. So, this is the rule that determines the scope of coverage of Waters of the United States. This includes rivers and lakes, wetlands, estuaries, and the rule has to do with where is the line between federal protection for these waters and waters that don't have that protection and they're left to the wishes of the individual states. The Trump administration has proposed a rule to roll back that jurisdiction to eliminate something along the order of 20% of the rivers across the country and over half of the wetlands that were formerly protected. If the waters are not covered by the Clean Water Act, then discharges to them are not regulated, including toxic discharges in some cases. Over 45% of the waters in the United States are impaired, meaning they don't meet water quality standards. So, we have a lot of work to do to clean up those waters. And one way to do that is to require permits for sources that discharge directly into the waters. It has wildlife benefits, fisheries benefits, public health benefits. And without that floor of federal protection, you get a crazy quilt of places where there is protection and places where there isn't protection. A lot of the pushback against the former regulations came from the Farm Bureau and the large agricultural industries. Also from the National Association of Homebuilders, the American Mining Congress. So, these are all the industries and land uses that cause water quality impairment, and they resent having a strong federal law dictating what they need to do to clean up.

CURWOOD: So in June, Pat, the EPA finalized what they call the Affordable Clean Energy rule to replace the Clean Power Plan from the Obama administration. Remind us about this rule and how it differs from the Clean Power Plan, and to what extent is it actually being enforced?

PARENTEAU: Right. So the Clean Power Plan developed by EPA, under the Obama administration had targeted a reduction of greenhouse gases 32% by 2030. And in fact, we're well on our way towards achieving that goal. The Clean Power Plan tried to give the states flexibility in how to meet these emission reduction targets through things like using cleaner natural gas over coal, bringing on wind and solar and other renewables. The Affordable Clean Energy rule abandons all of that, and basically says the only thing we're going to do is try to slightly improve the efficiency of individual power plants. Some analyses say that might have a very small, negligible reduction in emissions. Other analyses say that the emissions might actually increase. But in any case, a lot of the emissions that are not greenhouse gas emissions, but are other pollutants, those kinds of pollutants will actually increase under the Affordable Clean Energy rule at a very high cost. So, some of the economic analyses of the ACE rule show that in fact, the benefits from the rule will be outstripped by the costs of the rule, which is more than a little ironic coming from an administration that's supposed to be saving money and improving efficiency and so forth. But these were campaign promises that the President made that he was going to repeal these rules and free the fossil fuel industry from these restrictions because the administration doesn't accept the science of climate, doesn't believe it's a serious problem. This is completely against what the science is saying, what the economics is saying. We're moving in exactly the wrong direction on energy policy right now.

CURWOOD: Let's talk about human health. Of course, enhancing climate disruption is bad for human health, but what are the rollbacks that stand out to you particularly as egregious when it comes to the lack of protection for human health?

PARENTEAU: Yeah, there are a couple that come to mind. One is this problem with disposal of coal ash from all of the coal mining in Appalachia and the use of coal in burning and generating electricity. So we have all across the country, these major lagoons full of this toxic coal ash. Once again, the Obama administration was beginning to address this legacy of the coal era and trying to clean up these pits, which are contaminating groundwater. So that's a health issue, because it has groundwater contamination components. And there was the famous case of chlorpyrifos pesticide. The Obama administration had proposed to ban this pesticide because of its adverse health effects. The Trump administration has renewed its use. And the Ninth Circuit ruled that the repeal of the ban on chlorpyrifos was illegal. So that's also tied up in a lot of litigation.

CURWOOD: Pat, there's this saying: if you have the facts on your side, you argue them. If you have the procedure on your side, you’ll argue that. If you have neither, you just kind of pound your fist on the table. To what extent are these rollbacks based on facts, regulatory procedure, or just simply pounding that fist on the table?

PARENTEAU: The situation with the rollback of the Clean Water Act is a good example. The EPA, under Administrator Wheeler has said we're not basing the decision on science. We're basing the decision on, quote, “policy”. And we think we need to give more deference to the states who don't want federal regulation of these waters. And the problem with that, of course, is that there are spillover effects. If one state decides not to protect its waters, that has impacts on other states that depend on the same waters, rivers and lakes and so forth. So, that's a clear example of an administration saying facts don't matter.

CURWOOD: And what you've been describing, Pat, sounds pretty dire in the eyes of folks who care about environmental protection. I'm sitting down though, so you can tell me. What do you think that 2020 has now in store for environmental regulations under this administration?

PARENTEAU: Well, more of the same. I don't see any major change in philosophy or approach. We were looking for maybe some improvements in at least those egregious public health problems from Superfund sites. But here we have the Trump administration arguing in the Supreme Court, that property owners around Superfund sites should not be able to go to state court to get additional remedies when the Superfund remedy that EPA has adopted won't protect their property or their groundwater or their health. We hoped that we would see something in response to the Flint water crisis on protecting public water supplies. Haven't seen as much on that as we were promised. There could be a lot more done with strengthening the rules under the Safe Drinking Water Act. EPA's capability of enforcement has been reduced through budget reductions and staff that's been leaving because they're simply demoralized. They don't feel like the agency is on mission anymore. So, some of the areas where I'd like to be able to say we've seen a little bit of progress, it's really hard to find them.

CURWOOD: So, if there's a new administration following the 2020 elections, what might happen then, in your view?

PARENTEAU: A lot of these issues can be repaired and reversed. This is one of the reasons why some of the industry, including industry within the electricity industry and the automotive industry, don't actually agree with everything the Trump administration is doing. There's a real split in the industry about having policies that go back and forth dramatically from one administration to the next. Businesses want more predictability, more consistency, more of a level playing field. And what we're going to see with a new administration, I think, is a reversal of many of the issues that we've been talking about, which of course, will simply mean more and more litigation. That might make some of us that are in the business of producing environmental lawyers happy, but I don't think it's in the national interest. So, hopefully with the new administration, we can begin to repair some of the damage that's been done by this administration, but do so in a way that's durable.

CURWOOD: Alright, to what extent is this all bad news from the perspective of environmental protection and conservation? What is there in the way of something positive that the Trump administration has done?

PARENTEAU: Well, I don't know about the Trump administration. But I can tell you that I think across the country in the states and cities, there's a lot of good things going on. We see more and more clean energy coming in to state portfolios with pledges to meet 100% renewables in California, in Hawaii, in New Mexico. Here in Vermont, we've got a pledge of 90%. There's a long way to go to achieve those. But I think the states are the ones that are moving on that. And cities more and more are doing the same thing with the way that they're purchasing clean energy, the way that they're greening their cities, adapting to climate change. So, I think the real good news is not anywhere at the federal level. It's all at the state and local level.

CURWOOD: So, how fair is it to say that Pat Parenteau, the former EPA Regional General Counsel and law professor, is glad to see 2019 in the rearview mirror when it comes to the federal level of environmental protection?

PARENTEAU: Yeah, goodbye and good riddance is the way I would term that. And let's hope for a much brighter future in 2020. Lots of big things happening in 2020. It will be an interesting time, whether that's a curse or a blessing, we'll find out.

CURWOOD: Indeed. Pat Parenteau is a professor at Vermont Law School. Thanks so much for taking the time with us and I hope you enjoyed the holidays.

PARENTEAU: My pleasure, happy holidays, Steve.

 

Links

The New York Times | “Trump to Revoke California’s Authority to Set Stricter Auto Emissions Rules”

The New York Times | “95 Environmental Rules Being Rolled Back Under Trump”

The Hill | “Misguided Affordable Clean Energy Rule Is on the Wrong Side of History”

Inside Climate News | “Trump EPA Targets More Coal Ash Rules for Rollback. Water Pollution Rules, Too.”

More about Pat Parenteau