Category Archives: Federal Regulation (U.S.)

Poison in the Air: Detailed Mapping of Cancer-Causing Industrial Air Pollution

This story was originally published by ProPublica, republished here with permission.  By Lylla Younes, Ava Kofman, Al Shaw and Lisa Song, with additional reporting by Maya Miller, photography by Kathleen Flynn for ProPublica, November 2, 2021.  ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Poison in the Air: Sacrifice Zones – Mapping Cancer-Causing Industrial Air Pollution

From the urban sprawl of Houston to the riverways of Virginia, air pollution from industrial plants is elevating the cancer risk of an estimated quarter of a million Americans to a level the federal government considers unacceptable.

Some of these hot spots of toxic air are infamous. An 85-mile stretch of the Mississippi River in Louisiana that’s thronged with oil refineries and chemical plants has earned the nickname Cancer Alley. Many other such areas remain unknown, even to residents breathing in the contaminated air.

Until now.

ProPublica undertook an analysis that has never been done before. Using advanced data processing software and a modeling tool developed by the Environmental Protection Agency, we mapped the spread of cancer-causing chemicals from thousands of sources of hazardous air pollution across the country between 2014 and 2018. The result is an unparalleled view of how toxic air blooms around industrial facilities and spreads into nearby neighborhoods.

At the map’s intimate scale, it’s possible to see up close how a massive chemical plant near a high school in Port Neches, Texas, laces the air with benzene, an aromatic gas that can cause leukemia. Or how a manufacturing facility in New Castle, Delaware, for years blanketed a day care playground with ethylene oxide, a highly toxic chemical that can lead to lymphoma and breast cancer. Our analysis found that ethylene oxide is the biggest contributor to excess industrial cancer risk from air pollutants nationwide. Corporations across the United States, but especially in Texas and Louisiana, manufacture the colorless, odorless gas, which lingers in the air for months and is highly mutagenic, meaning it can alter DNA.

In all, ProPublica identified more than a thousand hot spots of cancer-causing air. They are not equally distributed across the country. A quarter of the 20 hot spots with the highest levels of excess risk are in Texas, and almost all of them are in Southern states known for having weaker environmental regulations. Census tracts where the majority of residents are people of color experience about 40% more cancer-causing industrial air pollution on average than tracts where the residents are mostly white. In predominantly Black census tracts, the estimated cancer risk from toxic air pollution is more than double that of majority-white tracts.

After reviewing ProPublica’s map, Wayne Davis, an environmental scientist formerly with the EPA’s Office of Chemical Safety and Pollution Prevention, said, “The public is going to learn that EPA allows a hell of a lot of pollution to occur that the public does not think is occurring.”

Our analysis comes at a critical juncture for the fate of America’s air. After decades of improvement, air quality has, by some metrics, begun to decline. In the last four years, the Trump administration rolled back more than a hundred environmental protections, including two dozen air pollution and emissions policies.

The EPA says it “strives to protect the greatest number of people possible” from an excess cancer risk worse than 1 in a million. That risk level means that if a million people in an area are continuously exposed to toxic air pollutants over a presumed lifetime of 70 years, there would likely be at least one case of cancer on top of those from other risks people already face. According to ProPublica’s analysis, 74 million Americans — more than a fifth of the population — are being exposed to estimated levels of risk higher than this.

EPA policy sets the upper limit of acceptable excess cancer risk at 1 in 10,000 — 100 times more than the EPA’s more aspirational goal and a level of exposure that numerous experts told ProPublica is too high. ProPublica found that an estimated 256,000 people are being exposed to risks beyond this threshold and that an estimated 43,000 people are being subjected to at least triple this level of risk. Still, the EPA sees crossing its risk threshold as more of a warning sign than a mandate for action: The law doesn’t require the agency to penalize polluters that, alone or in combination, raise the cancer risk in an area above the acceptable level.

In response to ProPublica’s findings, Joe Goffman, acting assistant administrator for the EPA’s Office of Air and Radiation, said in an emailed statement, “Toxic air emissions from industrial facilities are a problem that must be addressed.” Under President Joe Biden’s administration, “the EPA has reinvigorated its commitment to protect public health from toxic air emissions from industrial facilities — especially in communities that have already suffered disproportionately from air pollution and other environmental burdens.”

ProPublica’s reporting exposes flaws with EPA’s implementation of the Clean Air Act, a landmark law that dramatically reduced air pollution across America but provided less protection to those who live closest to industrial polluters.

The 1970 law resulted in outdoor air quality standards for a handful of widespread “criteria” pollutants, including sulfur dioxide and particulate matter, which could be traced to exhaust pipes and smokestacks all over the country and were proven to aggravate asthma and lead to early deaths. But 187 other dangerous chemicals, now known as hazardous air pollutants or air toxics, never got this level of attention. At the time, the science demonstrating the harms of these compounds, which primarily impact people in neighborhoods that border industrial facilities — so-called fence-line communities — was still in its early stages. The EPA did not receive enough funding to set the same strict limits, and industry lobbying weakened the agency’s emerging regulations.

In 1990, Congress settled on a different approach to regulating air toxics. Since then, the EPA has made companies install equipment to reduce their pollution and studied the remaining emissions to see if they pose an unacceptable health risk.

The way the agency assesses this risk vastly underestimates residents’ exposure, according to our analysis. Instead of looking at how cancer risk adds up when polluters are clustered together in a neighborhood, the EPA examines certain types of facilities and equipment in isolation. When the agency studies refineries, for example, it ignores a community’s exposure to pollution from nearby metal foundries or shipyards.

Matthew Tejada, director of the EPA’s Office of Environmental Justice, told ProPublica that tackling hot spots of toxic air will require “working back through 50 years of environmental regulation in the United States, and unpacking and untying a whole series of knots.”

“The environmental regulatory system wasn’t set up to deal with these things,” he said. “All of the parts of the system have to be re-thought to address hot spots or places where we know there’s a disproportionate burden.”

The Clean Air Act rarely requires industry or the EPA to monitor for air toxics, leaving residents near these plants chronically uninformed about what they’re breathing in. And when companies report their emissions to the EPA, they’re allowed to estimate them using flawed formulas and monitoring methods.

“These fence line communities are sacrifice zones,” said Jane Williams, executive director of California Communities Against Toxics. “Before there was climate denial, there was cancer denial. We release millions of pounds of carcinogens into our air, water and food and act mystified when people start getting sick.”

Brittany Madison is worried about the air. Madison, who is 31, lives in Baytown, Texas, a city next to the Houston ship channel where the skyline is dense with the glittering towers of chemical plants. In the apartment she shares with her 7-year-old son, her 39-year-old sister and her nieces and nephew, the low, steady hum of air purifiers is unremitting. Her 3-year-old niece, K’ryah, has suffered from debilitating asthma attacks since she was born. Even on good days, the family tries to keep K’ryah indoors as much as possible. On bad days, they shut the windows. And about once a month, they rush her to the hospital, where she’s given oxygen and injected with steroids.

Madison, who’s six months pregnant, loves taking long walks and watching the kids at the playground, but lately she’s been spending more and more time inside. Her home lies a few miles north of ExxonMobil Baytown Complex, one of the largest refineries in the world. Over the years, Exxon’s massive petrochemical operation has sent millions of pounds of toxic chemicals into the sky during accidents, unplanned discharges and fires. (ExxonMobil did not respond to requests for comment.) After a particularly smoky fire in 2019, Madison came down with a migraine, her first. Her son, who didn’t know the word for headache, told her that his brain was hurting.

Madison began to wonder if living near all these pipes and tanks and towers had something to do with the health conditions that afflicted her neighborhood. Air toxics are associated with a host of adverse effects that range from headaches and nausea to lung damage, heart failure and death, and they’re especially hazardous for kids and the unborn. A study by the University of Texas School of Public Health found that children living within 2 miles of the Houston ship channel had a higher risk of developing acute lymphocytic leukemia. Madison’s father, who worked at several nearby plants, died from a heart attack at 43. Friends and family have died of cancer. “You wonder what causes it. Is it the air we breathe? Or the food?” Madison asked. “There are just all these different questions that no one has answers to.”

The cancer risks from industrial pollution can be compounded by factors like age, diet, genetic predisposition and exposure to radiation; the knock-on effect of inhaling toxic air for decades might, for example, mean the difference between merely having a family history of breast cancer and actually developing the disease yourself. While the cancer and asthma rates in Houston’s Harris County are comparable with those in the rest of the state, Texas officials have identified cancer clusters in several of the city’s neighborhoods.

Large swaths of the Greater Houston area make up the third-biggest hot spot of cancer-causing air in the country, according to our analysis, after Louisiana’s Cancer Alley and an area around Port Arthur, Texas, which is on the Louisiana border. For many homes closest to the fence lines of petrochemical plants in cities like La Porte and Port Neches, Texas, the estimated excess risk of cancer ranges from three to six times the level that the EPA considers acceptable.

But because of the way that the EPA underestimates risk, the true dangers of living in a toxic hot spot are often invisible to regulators and residents.

The agency breaks things down into the smallest possible categories “to avoid addressing what we call cumulative risk,” said John Walke, an attorney at the Natural Resources Defense Council who formerly worked as an EPA lawyer advising the Office of Air and Radiation. “But our bodies do not parse out air pollution according to rule labels or industrial equipment or industrial source categories.” The cancer risk from each facility or type of equipment may be at levels the agency considers “acceptable,” but taken together, the potential harms can be substantial.

The EPA initially sent ProPublica a statement saying that it “ensures that risks from individual source categories are acceptable and that the standards provide an ample margin of safety to protect public health.”

In another statement sent after an interview, the agency added, “We understand that communities often confront multiple sources of toxic air pollution and face cumulative risks greater than the risk from a single source.” The EPA added that it was working both to better harness the science on cumulative risks and “to better understand risks for communities who are overburdened by numerous sources of multiple pollutants.”

Madison can’t help but notice that when her family travels, K’ryah’s asthma improves. “The first chance I get, I’m moving far away from Texas and never looking back,” she said. “I love being outside. I love seeing the stars. I don’t want to feel like someone is pumping gas onto our front porch.”

The locations of the hot spots identified by ProPublica are anything but random. Industrial giants tend to favor areas that confer strategic advantages: On the Gulf Coast, for instance, oil rigs abound, so it’s more convenient to build refineries along the shoreline. Corporations also favor places where land is cheap and regulations are few.

Under federal law, the EPA delegates the majority of its enforcement powers to state and local authorities, which means that the environmental protections afforded to Americans vary widely between states. Texas, which is home to some of the largest hot spots in the nation, has notoriouslylaxregulations.

Between 2008 and 2018, lawmakers cut funding for state pollution-control programs by 35% while boosting the state’s overall budget by 41%, according to a report by the Environmental Integrity Project, an advocacy group founded by former EPA staffers. A Texas Tribune story from 2017 found that during the prior year, the Texas Commission on Environmental Quality had levied fines in fewer than 1% of the cases in which polluters exceeded emission limits. Even when penalties are issued, many polluters see these fines as part of the cost of doing business, said Craig Johnston, a former lawyer at the EPA and a professor of environmental law at Lewis and Clark Law School.

Gary Rasp, a TCEQ spokesperson, told ProPublica that the agency “has taken actions to monitor, mitigate, and improve the air quality in fenceline communities.” The agency runs dozens of stationary air toxics monitors across the state, he added, and “by continuously evaluating air monitoring data, which is more accurate than modeling, TCEQ can identify issues.” The agency also inspects industrial facilities and “has an active enforcement program, referring particularly egregious cases to the Texas Office of the Attorney General.”

That the people living inside these hot spots are disproportionately Black is not a coincidence. Our findings build on decades of evidence demonstrating that pollution is segregated: People of color are exposed to far greater levels of air pollution than whites — a pattern that persists across income levels. These disparities are rooted in racist real estate practices like redlining and the designation of low-income neighborhoods and communities of color as mixed residential-industrial zones. In cities like Houston, for example, all-white zoning boards targeted Black neighborhoods for the siting of noxious facilities, like landfills, incinerators and garbage dumps. Robert Bullard, a professor of urban planning and environmental policy at Texas Southern University, has called the practice “PIBBY” or “Place In Blacks’ Back Yard” — a spin on the acronym “NIMBY” (“Not In My Back Yard”).

Many of the neighborhoods that border chemical plants are low-income and lack the same resources, access to health care and political capital that wealthier neighborhoods can bring to fights against intrusive commercial activities. In places like Baytown, working-class people depend on the very companies that sicken them to earn a living. Over the years, the shadow of industry can permanently impair not just a neighborhood’s health but also its economic prospects and property values, fueling a cycle of disinvestment. “Industries rely on having these sinks — these sacrifice zones — for polluting,” said Ana Baptista, an environmental policy professor at The New School. “That political calculus has kept in place a regulatory system that allows for the continued concentration of industry. We sacrifice these low-income, African American, Indigenous communities for the economic benefit of the region or state or country.”

Tejada, the EPA’s director of environmental justice, said that the Biden administration and the EPA are focused on confronting these disparities. “These places didn’t happen by accident. The disproportionality of the impacts that they face, the generations of disinvestment and lack of access are not coincidences. These places were created. And it is the responsibility of everyone, including the government — chiefly the government — to do something about it.”

The federal government has long had the information it would need to take on these hot spots. The EPA collects emissions data from more than 20,000 industrial facilities across the country and has even developed its own state-of-the-art tool — the Risk-Screening Environmental Indicators model — to estimate the impact of toxic emissions on human health. The model, known as RSEI, was designed to help regulators and lawmakers pinpoint where to target further air-monitoring efforts, data-quality inspections or, if necessary, enforcement actions. Researchers and journalists have used this model for various investigations over the years, including this one.

And yet the agency’s own use of its powerful modeling tool has been limited. There’s been a lack of funding for and a dearth of interest in RSEI’s more ambitious applications, according to several former and current EPA employees. Wayne Davis, the former EPA scientist, managed the RSEI program under the Trump administration. He said that some of his supervisors were hesitant about publishing information that would directly implicate a facility. “They always told us, ‘Don’t make a big deal of it, don’t market it, and hopefully you’ll continue to get funding next year.’ They didn’t want to make anything public that would raise questions about why the EPA hadn’t done anything to regulate that facility.”

Nicolaas Bouwes, a former senior analyst at the EPA and a chief architect of the RSEI model, recalled the occasional battle to get colleagues to accept the screening tool, let alone share its findings with the public. “There’s often been pushback from having this rich data sheet too readily available because it could make headlines,” he said. “What I find annoying is that the EPA has the same information at their disposal and they don’t use it. If ProPublica can do this, so can the EPA.”

In its statement, the EPA said that it plans to improve its approach for sharing air toxics data faster and more regularly with the public. “EPA has not published calculated cancer risks using RSEI modeled results,” it continued. “RSEI results are not designed as a substitute for more comprehensive, inclusive, or site specific risk assessments,” but as a potential starting point that should only be used “to identify situations of potential concern that may warrant further investigation.”

Indeed, our map works as a screening tool, not as a site-specific risk assessment. It cannot be used to tie individual cancer cases to emissions from specific industrial facilities, but it can be used to diagnose what the EPA calls “situations of potential concern.”

Our analysis arrives as America faces new threats to its air quality. The downstream effects of climate change, like warmer temperatures and massive wildfires, have created more smoke and smog. The Trump administration diluted, scuttled or reversed dozens of air pollution protections — actions estimated to lead to thousands of additional premature deaths. In 2018, then-EPA Administrator Scott Pruitt created a massive air toxics loophole when he rolled back a key provision of the Clean Air Act, known as “Once In, Always In,” allowing thousands of large polluters to relax their use of pollution-controlling equipment.

Biden has yet to close this loophole, but he has signaled plans to alleviate the disproportionate impacts borne by the people who live in these hot spots. Within his first few days in office, he established two White House councils to address environmental injustice. And in March, Congress confirmed his appointment of EPA administrator Michael Regan, who has directed the agency to strengthen its enforcement of violations “in communities overburdened by pollution.”

The White House did not respond to a request for comment.

Environmental advocates say that the Biden administration should lean on the EPA to test the air in toxic hot spots and take action against polluters who are violating their permits. It should also push for new rules that take into account the much greater risks posed when multiple facilities are grouped together in an area. Advocates also say the EPA should reexamine its tolerance of 1 in 10,000 as an acceptable excess cancer risk and extend the limit of 1 in 1 million to all, given how much the knowledge and technology surrounding air toxics has advanced since the 1980s. “We recognize that what was acceptable then is not OK now,” said Emma Cheuse, an attorney and air toxics expert at the advocacy group Earthjustice.

The EPA adopted the 1 in 10,000 threshold based on a 1988 agency report that listed the probability of dying from unusual things like “ignition of clothing,” “venomous plants” or drowning and then choosing a risk level roughly in the middle of the range. EPA’s decision was “essentially arbitrary,” said Patricia Ross McCubbin, a professor of environmental law at Southern Illinois University who’s researched the agency’s risk program.

Tejada said that the potential reevaluation of the EPA’s acceptable risk limit was “a big-time policy question.”

“We want to see progress” on hot spots, Tejada added, but given the complexity of the problems, he warned that progress could take time. “We’re not going to lie to anybody and say, ‘Well, by the end of this administration, everyone’s going to be fine.’ I don’t think anybody would buy that.”

Without stronger protections, many of the people living in fence-line communities worry about becoming collateral damage. For residents of Mossville, Louisiana, it is already too late.

Among the most polluted pockets of the country, the community in southwest Louisiana has all but disappeared amid the steady encroachment of the South African chemical giant Sasol. The company’s most recent construction led to a buyout of more than half of the area’s remaining residents. In the late 1990s, more than 500 people lived in Mossville. Residents say only 50 or so remain.

Mossville was founded by formerly enslaved people in the 1790s, long before the Civil War. Debra Sullivan Ramirez, 67, remembers her childhood there as a kind of idyll. She and her family lived off the land, with its shady swamps and leafy orchards. They grew their own fruits and vegetables, hunted and fished, and strained juice from Mayhaw trees to make jelly. After church on Sundays, Sullivan Ramirez remembers, she would fall asleep on her grandma’s front porch to the soothing hum of the Conoco chemical plant across the street.

In hindsight, there had always been warning signs. Fluorescent ponds. Plumes of yellow smoke. The occasional explosion in the sky. Not to mention all the sickness. Many of her neighbors suffered from respiratory problems and heart disease. Her father had diabetes, which may have been triggered by dioxin, a chemical that attacks the pancreas. Her sister Sandra died of ovarian cancer at 61. Her neighbor Kathy Jones died at 58 from an 8-pound tumor near her kidney.

“It wasn’t one block that didn’t have cancer,” Sullivan Ramirez said.

Over the years, Sullivan Ramirez herself has struggled with nerve degeneration and scleroderma, a rare condition that involves the tightening of the skin and connective tissues. While it can be difficult to link specific cases of disease to pollution exposure, the evidence in Mossville has accumulated: In a 1998 health survey conducted by the University of Texas, 84% of Mossville residents reported having headaches, dizziness, tremors and seizures. An EPA study from the same year found that the average level of dioxins in the blood of Mossville residents was dangerously high — triple that of the general U.S. population. Even small amounts of dioxin, one of the most poisonous chemicals released by facilities, can cause developmental problems, damage the immune system and lead to cancer. A 2007 report found that the types of dioxin compounds in the blood of Mossville residents matched those emitted by local industrial facilities.

In an emailed statement, Sasol noted that its property buyout stemmed from direct requests from Mossville residents and that the company offered owners more than the appraised value of their homes. “Sasol and its predecessor have produced or handled chemicals at our Lake Charles complex for more than 60 years. We understand the science and have controls in place to ensure our operations are safe, protective of the environment, compliant with regulations and sustainable over the long term,” wrote Sarah Hughes, a spokesperson for Sasol. “Sasol is proud of our engagement with our neighbors in Mossville and the positive impact it has had on many of its residents.”

Sullivan Ramirez is wary of too much talk. She knows that the new administration has promised something more for communities like hers, but she doesn’t want to get her hopes up. The presentations from captains of industry, the listening sessions with earnest bureaucrats, the proposals from slick attorneys, the promises tossed off by politicians — over the years, she’s heard it all.

The people of Mossville are right to be skeptical, the EPA’s Tejada acknowledged. “I would be skeptical if I was from Mossville,” he added. “They should be skeptical until we actually show up and do the things that they’ve been asking us to do for a long time. But there’s now a level of commitment to actually tangling with these issues in a really serious, substantive way.”

After years of activism in Mossville, Sullivan Ramirez moved to Lake Charles, just a short drive away. But she worries the industrial sprawl will one day overtake her new home. To Sullivan Ramirez, Mossville is “the key” — a warning of what the future holds for America’s other hot spots if business continues as usual.

“This is the 21st century,” she said. “The act of polluting our lands and robbing our communities — when will enough be enough?”

Benicia Author Stephen Golub – Norway??

The good, the bad and the ugly of GM’s Super Bowl ad.

By Stephen Golub, A Promised Land, February 8, 2021

Benicia Author Stephen Golub, A Promised Land

If you watched the Super Bowl, or even if you didn’t, you might well have seen the General Motors ad that features Will Ferrell pitching GM’s electric vehicles. It opens with Ferrell explaining that “Norway sells way more electric cars per capita than the U.S.” He then declares, “Well, I won’t stand for it,” before punching a globe and claiming that, with GM’s new electric battery, “we’re going to crush those lugers. CRUSH THEM! Let’s go, America.”

Ferrell, aka America’s loveable oaf, goes on to recruit Saturday Night Live’s Kenan Thompson and actress/comedian/celebrity Awkwafina to meet him in Norway, with him driving an electric Cadillac and them an electric Hummer to somehow get there. He actually ends up in Sweden and his two pals in Finland. But that’s beside the point.

Because the point’s been made: America will lead the world in EV use.

The Good

The ad doubles down on GM’s recent commitment to stop manufacturing gasoline and diesel vehicles by 2035. As this Atlantic article explains, that’s quite the about-face for the car company, given how it advocated for two regressive Trump administration positions: a rollback of anti-pollution rules and an attempt to block California’s regulation of vehicle emissions. Indeed, GM has been quite the laggard in this regard, as Ford and other automobile manufacturers opposed the administration on both issues.

Given how two-faced GM has been, we can’t be certain it will deliver on its promise until it’s further down the line. Still, the change itself couples with the company’s very public declaration of the move – you can’t get more public than a Super Bowl commercial – to reflect a decisive shift in the right direction for GM and the automotive industry more generally.

And it makes so much sense, even above and beyond environmental repercussions. According to the Atlantic piece:

In the future, Americans’ mass adoption of electric vehicles will seem inevitable. After all, EVs cost less to run than gas-powered cars (because electricity is cheaper than gas); they require cheaper maintenance; they break less; they are quieter. For many types of drivers—daily commuters, for instance, or errands-around-towners—they are already preferable to gas-powered cars.

The Bad

GM’s good news comes with a message that should curb our enthusiasm: Note that the vehicles it uses in the Super Bowl commercial are a Caddy and a Hummer. As environmental/energy expert Philip Warburg notes, “GM’s soon-to-be released electric vehicle flagship, the three-ton, 1,000-horsepower all-electric Hummer, stands as a warning that American auto manufacturers will not be abandoning their energy-wasteful giants, even as they move from internal combustion engines to electric power.”

Warburg goes on to caution that, even as the Biden Administration thankfully steers the United States toward an EV future, it must still focus on exhaust emissions from fossil fuel vehicles and on restraining vehicle size:

First, while the prospect of an all-electric vehicle fleet is alluring, we are decades away from achieving that goal. We therefore can’t afford to shrug our shoulders while most of our cars and trucks continue to rely on gasoline and diesel fuel.

Second, an electrified U.S. fleet dominated by oversized SUVs and pickups will consume substantially more energy than a leaner line of electric vehicles, making it much harder for clean electricity sources to edge out the gas and coal plants that still supply most of our electricity.

However affable a face Ferrell puts on GM’s shift, then, the government and public still need to force and pressure car companies to head in the right direction.

The Ugly

Though this ad will never win any awards for subtlety, it nevertheless plays up the unwittingly Ugly American in a creative and positive way. Ferrell’s taking umbrage at the idea that Norway (!!!) is beating America in EV usage is really a knock at the notion of any country besting us in this regard.

What’s significant here is that GM is making EV progress a matter of pride and patriotism. The commercial plays a bit on our national ignorance by bringing together the mindless “We’re Number One!” notion with Ferrell’s globe-piercing display and his little group arriving not in Norway but neighboring nations.

But hey, if a good-natured but cluelessly competitive American stereotype serves a good cause by highlighting how we must catch up with other countries, I’m all for it. At least in this instance, the Ugly American is a beautiful thing to behold.

[Hat tip: MS]
Stephen Golub, Benicia – A Promised Land: Politics. Policy. America as a Developing Country.

Benicia resident Stephen Golub offers excellent perspective on his blog, A Promised Land: Politics. Policy. America as a Developing Country.

To access his other posts or subscribe, please go to his blog site, A Promised Land.

Forget Trump: Biden is undoing harmful rules that have been in place since Reagan

US President Joe Biden signs executive orders for economic relief to Covid-hit families and businesses in the State Dining Room of the White House in Washington, DC, on January 22, 2021. (Photo by Nicholas Kamm / AFP) (Photo by NICHOLAS KAMM/AFP via Getty Images)
President Biden working for the people, not the powerful. (Photo by Nicholas Kamm / AFP) (Photo by NICHOLAS KAMM/AFP via Getty Images)
Daily Kos, by Ian Reifowitz, January 30, 2021

“It has the potential to be the most significant action Biden took on day one.” That’s what Senior Policy Analyst James Goodwin of the Center for Progressive Reform said about the executive order called Modernizing Regulatory Review (MRR)—although he recognized such a statement might sound “absurd” given everything else the new president did on that day. Goodwin was talking about an executive order (EO) that got little attention from mainstream journalists other than the HuffPost reporter who interviewed him. I initially heard about it thanks to Tim Corrimal’s show, but the Brookings Institute’s in-depth analysis of the MRR also generally tracks with the optimistic assessment from Goodwin. Cass Sunstein, who ran the Office of Information and Regulatory Affairs (OIRA) during President Obama’s first term, also strongly praised the change in a post at Bloomberg.

The memo directs the OIRA, which is housed in the Office of Management and Budget (OMB), to take a new approach when doing its job—namely reviewing regulations proposed by the executive branch. I know that the previous sentence may have left some of you nodding off into a dream about drowning in alphabet soup. (There are worse ways to go.) But trust me, if you breathe air, drink water, or buy, well, anything, there’s a pretty decent chance that what Biden just did will help you and yours stay safer and healthier—or maybe even just stay alive.


The key section of the document calls for the appropriate offices to “provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”

In addition to those important priorities, this Biden-Harris EO mandates that the review of regulations “promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects.”

Finally, the memo requires that any such review “ensure[s] that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.”

One might think all this would be obvious to anyone with a sense of fairness, an interest in actually getting things right based on the best available information, and a concern for justice. One who harbors such illusions clearly hasn’t dealt with Republicans.

Biden’s MRR differs from most of the other executive actions he has taken thus far in that it doesn’t target rules created by his immediate predecessor. Instead, the 46th president is going after a structure created by the godfather of modern conservatism in all its forms (including virulent race-baiting, although that’s not the topic of this post): Ronald Reagan.

With EO 12291 on Feb. 17, 1981, Reagan created the OIRA. Its goal was simple: Find ways to block regulations. The guts of the EO are contained in this section: “(R)egulatory action shall not be undertaken unless the potential benefits to society from the regulation outweigh the potential costs to society.” Sounds reasonable … until it’s time to define benefits and costs to society. Those definitions have rested solely on the basis of dollars and cents. If saving lives costs too much money, well, to paraphrase Col. Jessup from A Few Good Men, “people die.”

At the time, progressives knew what Reagan’s order would mean. Richard Ayres, a leading environmental activist who co-founded the National Resources Defense Council, called this approach to assessing the value of regulations “basically fraudulent.” Going further, he noted: “They are trying to put into numbers something that doesn’t fit into numbers, like the value of clean air to our grandchildren. Cost benefit analysis discounts the future. It allows costs to flow to small groups and benefits to large groups and vice versa. It is concerned with efficiency but not with equity. It is deceivingly precise and ignores ethical and moral choices.”

How’s that for a slogan that sums up an entire movement: “Conservatism: We’ve been ignoring ethical and moral choices for more than 40 years!”

California Rep. Henry Waxman, a long-time progressive champion, added: “It is very dangerous to think we can quantify the way we make policy judgments. We don’t know how to measure the true cost of health or disease.” Waxman was very clear about why this EO was one of the first actions taken during the Reagan presidency: It would enable Republicans to “use cost-benefit analysis to reach decisions that will favor business and industry in this country rather than the public.” Waxman couldn’t have been more right, either about this specific action Reagan took or about Republican priorities across the board.

President Bill Clinton issued a change in 1993 that reduced OIRA’s scope, but unfortunately left the basic framework relatively intact. Other tweaks have been made, including in 2011 under the Obama-Biden administration. But the order issued by the new Biden-Harris administration will, hopefully, usher in a new era for OIRA, one that differs not just by degree, but by kind.

By broadening the definition of costs and benefits beyond what can be calculated on a balance sheet, Biden’s MMR makes enactment possible for far-reaching protections likely to be blocked under the old system. Stuart Shapiro, a public policy professor at Rutgers University who used to work at OMB, explained that the previous approach to regulatory review stifled necessary measures: “Because the benefits are harder to measure, cost-benefit analysis always puts regulation at a disadvantage.” It’s more concrete to say that a specific environmental rule will cost businesses X dollars. However, what is the exact benefit in dollars to a life saved—or a life improved, for that matter? Those benefits are very real to actual people but were not given the proper weight because of the way the costs and benefits had been defined—until Biden came along, that is.

Don’t just take the word of progressives on how much of an impact this new policy will have; listen to how much conservatives despise it. The so-called Competitive Enterprise Institute is a libertarian think tank that, for all intents and purposes, never met a regulation it didn’t hate—especially on the environment. They published a post by Clyde Wayne Crews, a senior fellow and vice president for policy, which squealed that Biden’s MMR would end up “gutting the restraint of the past four years” and “effectively do away with cost-benefit analysis altogether.” Based on how that analysis operated, I’d say good riddance.

As for the last four years, the core of the twice-impeached president’s regulatory review policy was typical of the thoughtlessness of his administration in general. Rather than establish some kind of objective standards to measure the effectiveness of regulations—standards that would certainly favor corporate fat cats—the disgraced despot just said, “If there’s a new regulation, they have to knock out two.” That’s a direct quote—I’m not kidding. In a nutshell, that really was his new rule.

More broadly, The Man Who Tried To Overturn An Election He Lost seriously weakened environmental protections and totally hamstrung our country’s efforts to combat climate change. Hana V. Vizcarra, who researches environmental policy at Harvard, characterized what Trump did over four years as a “very aggressive attempt to rewrite our laws and reinterpret the meaning of environmental protections.” Trump’s anti-regulation regime went beyond the environment, including attacks on labor protections, health protections, education-related protections, and more.

The one wide-ranging piece of legislation enacted by the Republicans under Trump was the Rich Man’s Tax Cut, and Biden certainly needs to undo that giveaway to millionaires and billionaires as quickly as possible. But the other major policy “accomplishments” that need to be undone are in the area of regulation, where Trump had more room to operate by executive order and other executive branch actions. Now President Biden has that same authority, and his new MMR makes clear he knows how to use it.

We’ll likely be seeing one example of the impact of Biden’s executive order when he issues regulations—which we expect to see very soon—on so-called “forever chemicals.” The real name for them is per- and polyfluoroalkyl substances (PFAS), but their nickname derives from the fact that they “never break down in the environment,” as the Environmental Working Group explained. That’s not all:

Very small doses of PFAS have been linked to cancer, reproductive and immune system harm, and other diseases.

For decades, chemical companies covered up evidence of PFAS’ health hazards. Today nearly all Americans, including newborn babies, have PFAS in their blood, and up to 110 million people may be drinking PFAS-tainted water. What began as a “miracle of modern chemistry” is now a national crisis.

During his 2020 campaign, Biden promised to take action on PFAS as part of a wide-ranging plan to “secure environmental justice and equitable economic opportunity.” This is the first step among what will be many, but much of his agenda would likely have been neutered or even blocked under the old regulatory review rules. His new MMR was thus a vital first step in clearing the path for the specific changes he will carry out to protect all Americans’ health, safety, and much more.

It’s very important to remember that what Trump did was no different than what other Republicans have done going back four decades. Conservatives, over and over, wrongly decry as “red tape” the very rules that prevent a relatively small number of immoral, greedy sharks from causing real injury in the blind pursuit of profit—not to mention making it that much harder for the honest business owners who act morally to successfully compete.

Since long before the Orange Menace moved into the White House, his party has been in thrall to corporate interests, and hostile to the interests of consumers—also known as the American people. Even if Republicans purge Trumpism and the Trumpists from their party—something they absolutely must do for the sake of our democracy—the conflict between the parties on regulatory issues will not go away.

When it comes to regulations, one party favors the powerful and the wealthy, and the other works for all of us. It really is as simple as that.


Ian Reifowitz is the author of  The Tribalization of Politics: How Rush Limbaugh’s Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)

‘Stealth Bailout’ Shovels Millions of Dollars to Oil Companies – Valero gets $110 million in pandemic giveaway

Photographer: Vincent Mundy / Bloomberg

Bloomberg News, By Jennifer A Dlouhy, May 15, 2020

  •  Stimulus tax change helps translate losses into instant cash
  •  Oil companies are uniquely poised to benefit, analysts say

As it headed toward bankruptcy, Diamond Offshore Drilling Inc. took advantage of a little-noticed provision in the stimulus bill Congress passed in March to get a $9.7 million tax refund. Then, it asked a bankruptcy judge to authorize the same amount as bonuses to nine executives.

The rig operator is one of dozens of oil companies and contractors now claiming hundreds of millions of dollars in tax rebates. They are employing a provision of the $2.2 trillion stimulus law, called the CARES act, that gives them more latitude to deduct recent losses.

“This is a stealth bailout for the oil and gas industry,” said Jesse Coleman, a senior researcher with Documented, a watchdog group tracking the tax claims. It’s geared to companies “that have been losing money over the last few years — and now they get that money back as a check from the taxpayers. That’s exactly what the oil industry has been doing.”

relates to ‘Stealth Bailout’ Shovels Millions of Dollars to Oil Companies
Electronic drilling with cyber chairs Source: Diamond Offshore Drilling Inc.

The change wasn’t aimed only at the oil industry. However, its structure uniquely benefits energy companies that were raking in record profits in 2018 as crude prices reached $76.41 per barrel, only to see their fortunes flip a year later.

More than $1.9 billion in CARES Act tax benefits are being claimed by at least 37 oil companies, service firms and contractors, according to a Bloomberg News review of recent filings with the Securities and Exchange Commission. Besides Diamond Offshore, which declined to comment, recipients include oil producer Occidental Petroleum Corp. and refiner Marathon Petroleum Corp.

Read More: Occidental Seeking Federal Lifeline For U.S. Oil Industry

Other oil companies say they didn’t lobby Congress for the change, which is widely available across all industries. “We did not request any benefit, but we are obligated to follow the tax laws as passed by Congress, which apply to all corporate manufacturers nationwide,” said Jamal Kheiry, a spokesman for Marathon, which got a $411 million benefit.

Congress embedded the tax change governing losses in the stimulus measure early on, as lawmakers moved rapidly in March to steer trillions of dollars in aid to coronavirus-ravaged workers and companies. Alongside expanded unemployment payments and payroll loan programs, lawmakers saw an opportunity to harness the tax code to help get cash flowing to companies struggling to pay rent, workers and insurance.

It “was sold as help for the little guy — help for small business,” said Steve Rosenthal, a senior fellow with the Urban-Brookings Tax Policy Center. “In the name of ‘small business,’ we’re shoveling out billions of dollars to big corporations and rich guys.”

The provision loosened rules governing how businesses deduct net operating losses — incurred when deductible expenses exceed gross income. For years, companies were able to apply those net operating loss deductions to previous tax returns as well as going forward — but Congress ruled out retroactive relief as part of the 2017 tax cut law.

Tax Law Changes May Limit Benefits of New Loss Carryback Perk

That new forward-focused approach works well when the economy is expanding, but the promise of using today’s losses as tomorrow’s deductions isn’t much help to coronavirus-battered companies with no guarantee they will survive long enough to claim them. So in the stimulus package, Congress gave businesses the chance to carry back all their losses — and claim immediate tax refunds — for five years from 2018, 2019 and 2020.

“The thought was temporarily we should bring them back so that firms that are seeing significant losses in the next year or over the past year or two can carry those back and get some short-term liquidity,” said Garrett Watson, a senior policy analyst at the Tax Foundation, a non-profit that supports pro-growth tax policies.

Traditionally, the ability to deduct net operating losses is meant to ensure companies get fair tax treatment even amid volatility, Watson said — a plus for the notoriously boom-and-bust oil industry. “You are going to see the biggest benefits for firms like oil and gas that are seeing volatile profits — and now, of course, extreme losses,” he said.

The combination of big losses now and the congressional tax changes mean it may be years before some oil companies have to pay corporate income taxes at all.

“We’re going to have some large losses this year,” ConocoPhillips Executive Vice President Don Wallette said in an April 30 earnings call. The company is in “a zero-tax-paying position in the U.S. and expect to remain there for quite some time,” Wallette said.

There’s no limit on how the new refunds can be used — and even bankrupt firms can get them.

Oil for Less Than Nothing? Here’s How That Happened: QuickTake

Consider Diamond Offshore. Once one of the world’s largest drilling rig contractors, it filed for Chapter 11 bankruptcy protection on April 26 after crude prices plunged along with demand for its high-tech drillships.

In a first quarter filing, Diamond, which is majority owned by Loews Corp., said it had recognized a tax benefit of $9.7 million as a result of the carryback change. In an emergency motion filed with a federal bankruptcy court May 1, the company asked for the freedom to dole out $16.7 million in cash incentives to 85 of its 2,300 full-time employees, including as much as $9.7 million for nine senior executives.

The company said at the time that deteriorating market conditions and the collapse of Diamond’s stock had made its existing equity-based bonus program “largely worthless.” The tax filing did not specify how the $9.7 million would be used.

Dozens of other oil businesses have reported reaping the benefits, including $55 million for Denver-based Antero Midstream Corp., $41.2 million for supplier Oil States International Inc. and $96 million for Oklahoma-based producer Devon Energy Corp.

Occidental Petroleum, which enlisted its employees to ask Congress to “provide liquidity to the energy industry,” said it now anticipates a cash refund of about $195 million as a result of the carryback provision and a separate change in the stimulus bill that allows the immediate refund of unused alternative minimum tax credits. An Occidental spokesperson declined to comment.

Millions in Refunds
National Oilwell Varco Inc., a manufacturer of oil and gas equipment, expects a $123 million refund by carrying back its 2019 losses and applying them to its 2014 tax filing.

San Antonio-based refiner Valero Energy Corp. recognized an extra $110 million by carrying back losses to 2015 — when the corporate tax rate was 35% instead of the current 21%.

Valero spokeswoman Lillian Riojas said that is tied to tax losses generated in the first quarter, since the company did not generate a net operating loss for federal income tax purposes in 2018 or 2019. And she said the actual refund will be dependent “not only on the company’s performance for the remainder of the year, but also on the impact” of other tax provisions.

The benefits are “turbo-charged,” said Rosenthal, with the Urban-Brookings Tax Policy Center. That’s because businesses can carry back losses to offset income at a higher corporate tax rate of 35%, before the 2017 tax cut law lowered it 14 points. “Getting those losses at 35% is very, very favorable — especially in 2020 when the losses are going to be devastatingly large.”

The filings themselves reveal only part of the picture. Private companies are able to generate tax refunds too — without disclosing it to the SEC. And while some public companies said they benefited from the tax break, they didn’t reveal by how much.

For instance, refiner Phillips 66 boasted an effective income tax rate of just 2% for the first quarter — well below the federal statutory income tax rate of 21% — partly because of the carryback. But the company did not specify the amount of its expected refund.

House Democrats Unveil $3 Trillion Aid Bill With Cash for States

Dennis Nuss, a spokesman for Phillips 66, declined to comment when reached by phone Thursday. Representatives for Oil States, National Oilwell Varco, Antero and Devon didn’t respond to messages seeking comment.

The importance of the provision hasn’t been lost on President Donald Trump’s administration. Energy Secretary Dan Brouillette recommended oil companies consider taking advantage of the expanded deduction in an April 21 interview with Bloomberg TV, calling it one of several “important liquidity tools that are going to help the industry.”

Congressional tax analysts initially estimated that the expanded loss carryback provision would cost $25 billion over 10 years — just when used by corporations. Now, some are questioning whether the final pricetag could be much higher, and Democrats are seeking to limit the value of the tax break after raising concerns it overwhelmingly helps corporations and the wealthy.

In a new stimulus bill advanced Tuesday, House Democrats proposed scaling back the provision so companies could only apply losses back to 2018. Their plan also would prevent companies with “excessive” executive compensation or stock buybacks from claiming the tax break — a change that would be retroactive back to March.

Rosenthal stressed that it was logical for Congress to help businesses that were profitable before the pandemic. “But the CARES Act goes too far, tilting its benefits overwhelmingly to the wealthiest Americans,” he said in an essay. “I think Congress did not know the extent of what it was doing.”

— With assistance by Ari Natter, Laura Davison, David Wethe, Kevin Crowley, Leslie Pappas, and Rachel Adams-Heard