Category Archives: Environmental pollution

Supreme Court nominee Brett Kavanaugh on the environment

Repost from DeSmog Blog

How Supreme Court Pick Brett Kavanaugh Could Return US Policy to the Era of Robber Barons

By Sharon Kelly • Wednesday, September 5, 2018 – 11:39
Brett Kavanaugh
Judge Brett Kavanaugh. Credit: C-Span screen shot

As Judge Brett Kavanaugh’s Supreme Court nomination hearings get under way, understanding his appointment’s potential impacts for corporate regulation and the climate means looking back all the way to 1890.

That was when a nearly 50-year stretch known to legal historians as the “Lochner era” kicked off — a time better known in U.S. history as the age of the robber barons.

The Lochner era gets its name from a 1905 Supreme Court case, Lochner v. New York, which threw out state limits on the number of hours bakers could work in a week. This case’s reasoning was later overturned by the U.S. Supreme Court in a 1937 case that rejected a half-century of judicial thinking — doctrines that had led the court to toss out laws governing working conditions, creating food safety standards, and barring child labor.

In 1937, as the Great Depression raged, the Supreme Court faced pressure from President Franklin Delano Roosevelt, frustrated after the Court rejected 11 of 13 early New Deal programs as unconstitutional. The Constitution doesn’t say how many justices are allowed to sit on the Supreme Court — and FDR threatened to add enough justices to change the court’s leanings.

Not long after FDR’s threat, Justices Owen Roberts and Charles Evans Hughes joined majorities that rejected Lochner and found the new National Labor Relations Board constitutional — a move that’s gone down in legal history as the “switch in time that saved nine.” (Nine being the number of justices sitting on the Court.)

During the Lochner era, the Supreme Court followed a “non-delegation doctrine” that required Congress to play an active role in the most minute details of decision-making and policy-setting.

Bringing it back could have huge significance for how the U.S. regulates the environment, food safety, the Internet — and global climate change.

Bringing Lochner Back?

After the Lochner era ended, the Supreme Court allowed Congress, which writes the laws, to delegate the details of rules and regulations to government agencies in the executive branch, which enforces laws. So, for example, the U.S.Environmental Protection Agency (EPA) can decide just how much of a given chemical is safe in a city’s drinking water — and change those rules as new hazards are uncovered — without getting both houses of Congress to sign off on every detail.

Taken to the extreme, uprooting its ability to delegate could require Congress to write or approve every new federal rule and regulation, a herculean task in a country of over 300 million people. The House and Senate’s 535 members would also have to tackle jobs currently performed by dozens of federal agencies like the Food and Drug Administration (FDA), the Federal Communications Commission (FCC), and the Department of Agriculture (USDA).

But there are signs that the Supreme Court might allow the non-delegation doctrine to slip back into the law. In March, the Supreme Court agreed to review a case called Gundy v. United States, limiting its review to non-delegation issues.

And with Justice Kavanaugh shifting the court far to the right, that relatively obscure case might represent a major opportunity for corporations to chip away at the foundations of America’s regulations, including its environmental protections.

“This is a really important sleeper case,” Sean Hecht, a law professor at University of California, Los Angeles told McClatchy in June, before Kavanaugh was nominated on July 9. If the Supreme Court handed down a broad ruling, “[p]arties would feel emboldened to say, you can’t make us do this under the Clean Air Act, or Clean Water Act, or the Endangered Species Act, because Congress wasn’t precise enough in the policy guidance it gave the agency.”

The Gundy case, which involves a dispute over the Sex Offender Registration and Notification Act, directly relates to criminal, not civil law — but legal observers warn that reviving non-delegation in any context could open the doors to hard right-wing judicial activism in much broader contexts.

“There are many on the right that want to upend nearly a century of law,” said Lisa Graves, co-director of the watchdog group Documented and a former Deputy Assistant Attorney General, warning that Kavanaugh’s appointment could kick off a move back towards the Lochner era.

Kochs and Kavanaugh: The Laissez-Faire Link

The Lochner era’s laissez-faire philosophy — a hands-off, “let it be” approach that promotes slashing corporate regulation in the name of limiting government power — is one that many Koch-affiliated organizations and right-wing think tanks share today.

The Federalist Society, whose top donors include David Koch, Charles G. Koch Charitable Foundation, and Koch Industries, according to The Hill, has for years sponsored and hosted debates on reviving the non-delegation doctrine.

Kavanaugh, a long-time Federalist Society member who briefly resigned at the start of his tenure with the G.W. Bush White House Counsel, has remained active at Federalist Society events, though in 2001 he sought to distance himself from the conservative legal group in the press.

The Federal Society role here is extraordinary,” said Graves. Leonard Leo, who has served for years as the society’s executive vice president, took a leave to advise President Trump on judicial nominees. He helped craft the list used by the Trump administration to decide who to appoint to Supreme Court vacancies.

By speaking at and attending many of the Federalist Society events, Kavanaugh maintained a close connection to the group after he became a judge in D.C.’s U.S. Court of Appeals.

Judges are like jewels in the crown of the Federalist Society,” Graves said. “In essence, his involvement lends the prestige of his office to that organization.”

When it comes to climate change, Kavanaugh can see that there is a problem. “The earth is warming. Humans are contributing,” he said in 2016. “There is a huge policy imperative. The pope’s involved.”

But in 2016 during oral arguments for a lawsuit against the Clean Power Plan, Kavanaugh’s reasoning against Obama’s signature climate change program took on a Lochner-esque tone as he argued that Congress hadn’t clearly delegated authority for Obama’s EPA to regulate carbon emissions under the Clean Air Act. “Global warming is not a blank check, either, for the President,” Kavanaugh said.

During hearings on his appointment to the D.C. Circuit, Kavanaugh called Lochner a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.”

Yet after ascending to the D.C. Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices,” Slate reported in July.

Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told Inside Climate News. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough.”

Things Heat Up in Alaska and Maine

The two Republican Senators seen as most likely to shift course on Judge Kavanaugh’s appointment to the Supreme Court are Senators Susan Collins and Lisa Murkowski. They hail from two of America’s northern-most states. And those two northern states, Alaska and Maine, have already begun to feel the consequences of a changing climate.

In Alaska, the climate has been warming so fast, the Washington Post reported in January, that computers rejected data from Barrow, Alaska’s climate monitoring stations because the temperatures were so high that the algorithms assumed something had gone wrong with the monitors (it hadn’t.) Some parking lots and airport runways in the state are now equipped with cooling systems to keep the pavement from buckling as permafrost melts — a problem that’s putting building foundations at risk too.

Meanwhile Maine’s iconic lobsters are under threat not only from ocean acidification, but also from warming seas and invasive marine life. The state’s been experiencing a “marine heatwave” that’s raised ocean temperatures more than 10 degrees above normal levels.

Neither Collins nor Murkowski, who both have broken from party lines in the past, has a stellar track record on climate issues, but polls in their home states have shown strong public support for action.

The impacts of a Supreme Court appointment can be expected to long outlast the Trump administration’s time in office — potentially adding years or decades of delays if a later EPA seeks to take action on the climate.

To some degree, limits on government powers are right in line with a more moderate conservative view.

But the non-delegation doctrine is linked to some of the furthest excesses of unchecked capitalism, Supreme Court justices have pointed out. “Once we start down the road of saying Congress cannot tell even a private agency to go and make some standards, which we all know will be followed, once we start down that road there is no stopping place,” Justice Steven Breyer warned during oral arguments in 2014.

And that would serve the goals of some among the most extreme right-wing activists in the U.S. today. Trump’s former chief strategist Steve Bannon called for the “deconstruction of the administrative state,” the New York Times reported in February 2017.

A full revival of Lochner would go a long way towards achieving that goal — and the consequences for the climate could be dire.

    Why California gets to write its own auto emissions standards: 5 questions answered

    Repost from LEGALPLANET.org – BerkeleyLaw / UCLA LAW

    Why California gets to write its own auto emissions standards: 5 questions answered

    Authored by Nicholas Bryner and Meredith Hankins, Posted on April 6, 2018 10:02 am by Nick Bryner
    Rush hour on the Hollywood Freeway, Los Angeles, September 9, 2016. AP Photo/Richard Vogel

    This article was originally published on The Conversation. Read the original article.

    Legal Planet editor’s note: On April 2, Environmental Protection Agency Administrator Scott Pruitt announced that the Trump administration plans to revise tailpipe emissions standards negotiated by the Obama administration for motor vehicles built between 2022 and 2025, saying the standards were set “too high.” Pruitt also said the EPA was re-examining California’s historic ability to adopt standards that are more ambitious than the federal government’s. Legal scholars Nicholas Bryner and Meredith Hankins explain why California has this authority – and what may happen if the EPA tries to curb it.

    Where does California get this special authority?

    The Clean Air Act empowers the EPA to regulate air pollution from motor vehicles. To promote uniformity, the law generally bars states from regulating car emissions.

    But when the Clean Air Act was passed, California was already developing innovative laws and standards to address its unique air pollution problems. So Congress carved out an exemption. As long as California’s standards protect public health and welfare at least as strictly as federal law, and are necessary “to meet compelling and extraordinary conditions,” the law requires the EPA to grant California a waiver so it can continue to apply its own regulations. California has received numerous waivers as it has worked to reduce vehicle emissions by enacting ever more stringent standards since the 1960s.

    Other states can’t set their own standards, but they can opt to follow California’s motor vehicle emission regulations. Currently, 12 states and the District of Columbia have adopted California’s standards.

    Gov. Ronald Reagan signs legislation establishing the California Air Resources Board to address the state’s air pollution, August 30, 1967. CA ARB
    What are the “compelling and extraordinary conditions” that California’s regulations are designed to address?

    In the 1950s scientists recognized that the unique combination of enclosed topography, a rapidly growing population and a warm climate in the Los Angeles air basin was a recipe for dangerous smog. Dutch chemist Arie Jan Haagen-Smit discovered in 1952 that worsening Los Angeles smog episodes were caused by photochemical reactions between California’s sunshine and nitrogen oxides and unburned hydrocarbons in motor vehicle exhaust.

    California’s Motor Vehicle Pollution Control Board issued regulations mandating use of the nation’s first vehicle emissions control technology in 1961, and developed the nation’s first vehicle emissions standards in 1966. Two years later the EPA adopted standards identical to California’s for model year 1968 cars. UCLA Law scholar Ann Carlson calls this pattern, in which California innovates and federal regulators piggyback on the state’s demonstrated success, “iterative federalism.” This process has continued for decades.

    California’s severe air pollution problems have made it a pioneer in air quality research.
    California has set ambitious goals for slowing climate change. Is that part of this dispute with the EPA?

    Yes. Transportation is now the largest source of greenhouse gas (GHG) emissions in the United States. The tailpipe standards that the Obama EPA put in place were designed to limit GHG emissions from cars by improving average fuel efficiency.

    These standards were developed jointly by the EPA, the U.S. Department of Transportation (DOT), and California, which have overlapping legal authority to regulate cars. EPA and California have the responsibility to control motor vehicle emissions of air pollutants, including GHGs. DOT is in charge of regulating fuel economy.

    Congress began regulating fuel economy in response to the oil crisis in the 1970s. DOT sets the Corporate Average Fuel Economy (CAFE) standard that each auto manufacturer must meet. Under this program, average fuel economy in the United States improved in the late 1970s but stagnated from the 1980s to the early 2000s as customers shifted to purchasing larger vehicles, including SUVs, minivans and trucks.

    In 2007 Congress responded with a new law that required DOT to set a standard of at least 35 miles per gallon by 2020, and the “maximum feasible average fuel economy” after that. That same year, the Supreme Court ruled that the Clean Air Act authorized the EPA to regulate GHG emissions from cars.

    The Obama administration’s tailpipe standard brought these overlapping mandates together. EPA’s regulation sets how much carbon dioxide can be emitted per mile, which matches with DOT’s increased standard for average fuel economy. It also includes a “midterm review” to assess progress. Administrator Scott Pruitt’s new EPA review, released on April 2, overturned the Obama administration’s midterm review and concluded that the 2022 to 2025 standard was not feasible.

    The EPA now argues that earlier assumptions behind the rule were “optimistic” and can’t be met. However, its review almost entirely ignored the purpose of the standards and the costs of continuing to emit GHGs at high levels. Although the document is 38 pages long, the word “climate” never appears, and “carbon” appears only once.

    The EPA’s decision does not yet have any legal impact. It leaves the current standards in place until the EPA and DOT decide on a less-stringent replacement.

    U.S. carbon dioxide emissions from transportation exceeded those from electric power generation in 2016 for the first time since the 1970s.  USEIA
    Can the Trump administration take away California’s authority to set stricter targets?

    The EPA has never attempted to revoke an existing waiver. In 2007, under George W. Bush, the agency denied California’s request for a waiver to regulate motor vehicle GHG emissions. California sued, but the EPA reversed course under President Obama and granted the state a waiver before the case was resolved.

    California’s current waiver was approved in 2013 as a part of a “grand bargain” between California, federal agencies and automakers. It covers the state’s Advanced Clean Cars program and includes standards to reduce conventional air pollutants like carbon monoxide, nitrogen oxides and particulate matter, as well as the GHG standards jointly developed with the EPA and DOT.

    The Trump administration is threatening to revoke this waiver when it decouples the national GHG vehicle standards from California’s standards. EPA Administrator Pruitt has said that the agency is re-examining the waiver, and that “cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country.” In our view, this statement mischaracterizes how the Clean Air Act works. Other states have voluntarily chosen to follow California’s rules because they see benefits in reducing air pollution.

    How would California respond if the EPA revokes its waiver?

    Gov. Jerry Brown, Attorney General Xavier Becerra and California Air Resources Board Chair Mary Nichols have all made clear that the state will push back. It’s almost certain that any attempt to revoke or weaken California’s waiver will immediately be challenged in court – and that this would be a major legal battle.


    Nicholas Bryner, Emmett/Frankel Fellow in Environmental Law and Policy, University of California, Los Angeles and Meredith Hankins, Shapiro Fellow in Environmental Law and Policy, University of California, Los Angeles

      KQED: EPA Demands Answers From Valero Months After Massive Benicia Refinery Outage

      Repost from KQED News

      EPA Demands Answers From Valero Months After Massive Benicia Refinery Outage

      By Ted Goldberg, August 23, 2017

      An 18-minute power outage on May 5, 2017, at the Valero refinery in Benicia led to a prolonged episode of flaring during which 74,000 pounds of sulfur dioxide was released into the air.

      The Valero Energy Corporation is facing a deadline in the coming days to respond to questions from the U.S. Environmental Protection Agency about power issues at its Benicia oil refinery several months after an outage shut down the entire facility for weeks, leading to a major release of pollution.

      The EPA wants detailed information about the outages that have led to flaring events at the refinery over the last three years, and it wants inspection records for all of the facility’s process units.

      “EPA believes that much of the requested information is, or should be, readily available at the facility,” wrote Enrique Manzanilla, director of the agency’s Pacific Southwest Superfund Division, in a letter obtained by KQED.

      The agency has asked Valero to explain its policies on handling outages, its risk management program and its flare system.

      “The company may not withhold any information from EPA on the grounds that it is confidential business information,” the July 27 letter states. The EPA says Valero is required to respond to the agency within 30 days of receiving the letter.

      The outage initially sent a huge plume of smoke into the air, prompting evacuation and shelter-in-place orders. It would later lead to several local and state investigations, a multimillion-dollar lawsuit, a decrease in profits for Valero and a push for more refinery oversight by the city of Benicia.

      A Valero official says the company is working on providing answers to federal officials.

      “We did receive the EPA request, and we intend to respond accordingly,” Lillian Riojas, a Valero spokesman, said in an email.

      The EPA’s demands seem to go against the image the Trump administration has established as less interested in strong regulations on the fossil fuel industry.

      “This letter is a bit surprising given that Trump’s EPA seems to be ignoring many public health issues to the delight of just about every polluter in the country,” said Hollin Kretzmann, at the Center for Biological Diversity, in an email. “The EPA must think Valero’s practices are especially concerning if it’s asking for this information.”

      Still, he says the agency is not being aggressive enough. “This might be little more than a public relations exercise in the face of increasingly high-profile pollution problems at Bay Area refineries,” Kretzmann said. “There’s no assurance that any of this information gathering will lead to meaningful action.”

      Daniel Kammen, a professor in the Energy and Resources Group at UC Berkeley who has long advocated for strong solutions to climate change, says the EPA’s demand for information from one of the nation’s largest oil companies in connection with a local emergency should be the kind of on-the-ground work the agency does, no matter who’s in the White House.

      “Actual workers at the EPA have to continue their jobs irrespective of political interference,” Kammen said.

      If the EPA did not act on its federal mandate to react to Valero’s pollution release, it could be sued by environmental groups, according to Anthony Wexler, director of the Air Quality Research Center at UC Davis.

      “Despite (EPA Administrator Scott) Pruitt’s stance on climate and environment in general, in numerous decisions he has shied away from taking actions that will certainly lose in court,” Wexler said.

      The agency’s demands are part of a review of the refinery prompted by the May 5 outage, according to EPA officials who declined to comment further on the agency’s letter to Valero.

      They came a month after Valero filed a lawsuit against PG&E, blaming the utility for the power failure. The oil giant is seeking in excess of $75 million for damage to refinery equipment and lost revenue it says was the result of the shutdown that took place after PG&E “shut off all electricity” to the Benicia facility.

      PG&E has said the power failure was triggered by an “inadvertent operation” to protect electrical circuits. It has hired an engineering firm to review the cause. That company, Exponent, has yet to turn over a report to PG&E, according to utility spokeswoman Deanna Contreras.

      The refinery released more than 80,000 pounds of sulfur dioxide from flaring in the days and weeks after the outage.

      In June, KQED revealed that the refinery released more than 74,000 pounds of the toxic gas during 14 days of flaring after the outage, described as a “huge amount” by experts. That information came from a report the company filed with state officials and was obtained through a California Public Records Act Request.

      Valero filed a separate report with the California Office of Emergency Services last month that showed the refinery released more than 8,200 pounds of sulfur dioxide on June 18 and 19.

      The outage prompted several investigations, including one that revealed damage to part of the facility.

      California’s Division of Occupational Safety and Health (Cal/OSHA) inspected the refinery after the power failure, closed its investigation the same month and decided not to issue any violations afterward.

      But the outage did damage one of the refinery’s flares, according to Cal/OSHA. “Attention was given to the South Flare, due to damage on flare tips and the dump stack,” wrote Cal/OSHA safety engineer Sean Sasser in a notice after the inspection.

      The Bay Area Air Quality Management District issued several notices of violation against the company due to the flaring in the days after the shutdown. Its investigation is ongoing, according to district spokesman Ralph Borrmann.

      Solano County’s Department of Resource Management also launched a probe. That review is ongoing and is expected to be completed in October, according to Terry Schmidtbauer, the department’s director.

      Experts say the outage led to an increase in the state’s gasoline prices.

      And the shutdown hurt Valero’s bottom line. Its lawsuit claimed that the company lost a “substantial amount of profits.” The company’s second-quarter earnings, released last month, fell by more than 30 percent, apparently because it took several weeks to get the refinery back online.

      The outage has also prompted Benicia city leaders to consider increasing their oversight of the refinery and improve how they communicate with residents about emergencies.

      On the day of the shutdown, authorities imposed shelter-in-place evacuation orders for parts of the city, and at least a dozen people sought medical treatment for breathing difficulties.