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When is a Win More than a Win?

July 31, 2020

Our corner of the environmental legal community has been rolling in wins, this spring and summer, in court cases challenging the Administration’s environmental rollbacks. This is good news in the midst of the pandemic and the movement against systemic racism inspired by the Black Lives Matter protests, and should be celebrated not just by lawyers, as important for air quality and the environment in abstract terms, but as a step forward for the most vulnerable in our society. In case after case, courts are declaring that science matters, that public health matters, and that our environmental laws demand rational, science-based, public health- protective decision-making by the federal government. The additional pollution control that will result from these successes helps everyone, and will most directly benefit those living near regulated industries – who, the data show, are more likely than average to be Black or brown people, and economically disadvantaged.

On July 15th, for example, a federal district court judge threw out the Trump Administration’s repeal of important Bureau of Land Management requirements controlling releases of methane, a potent greenhouse gas, during oil and gas production activities on federal lands – including Tribal lands. California, et al. v. Bernhardt, No. 4:18-cv-05712-YGR (July 15, 2020). In an opinion saying beautifully what the environmental legal community has argued since 2017, Judge Yvonne Gonzalez Rogers of the Northern District of California soundly thrashed the agency, holding that the Trump Administration’s repeal was based on an unreasonable reading of the law, was unsupported by science, was an abandonment of the Government’s duties to ensure that oil and gas development on Tribal lands are safe, responsible and environmentally protective, and that the Administration had improperly failed to consider the very real costs imposed by eliminating the control requirements, both on local public health and on the global climate.

Just five days earlier, the appeals court in Washington D.C. issued a win to our client public health and environmental groups and state and local government petitioners across the country. Clean Wisconsin, et al. v. EPA, No. 18-1203 (D.C. Cir. July 10, 2020).  In that case we argued, and the court held that the U.S. EPA’s work in implementing national ozone smog rules was not based on science, but on concerns about minimizing costs to industry, by defining dirty air areas as tightly as possible in eight states. Again, the court reprimanded the Trump Administration’s favoritism to industry over public health, aimed at requiring the fewest number of industrial sources to add much needed pollution control, and sent back ozone smog dirty air boundaries in 11 counties from Texas to Michigan for a redo based on science.

Science matters. Earlier this spring the same circuit court threw out the Administration’s effort to purge the scientific advisory boards it is required to rely on under the several environmental laws that require EPA to ground its decision-making in scientific evidence. Physicians for Social Responsibility, et al. v. Wheeler, 956 F.3d 634 (D.C. Cir. 2020). The court held that U.S. EPA had provided no legitimate rationale for its decision to stop relying on the advice of the nation’s top experts in making science-based decisions.

Public health matters, never more so than right now. The Administration is not at liberty to ignore the effects of its decision-making on the real people who are harmed by it. EPA – and BLM, and the other agencies of the federal government have a duty to comply with the statutes Congress has passed, as yet another court held in handing down yet another win on July 28th as I am writing this. New Jersey, et al. v. Wheeler, No. 1-20:cv-01425-JGK (S.D.N.Y. July 28, 2020). EPA’s duty is to act expeditiously under them to ensure that people have “clean and breathable air,” not to hand wave about “uncertainty” and claim impossibility without any support.

Even so, this Administration continues putting forward proposals prioritizing industry interests over legal directives and science showing what is best for breathers and the environment. We see this in the current proposal to require formal cost-benefit analysis in support of Clean Air Act rulemaking, including the idea that little or no weight should be given to regulatory benefits for which a dollar figure cannot be developed.  But consider, that it is difficult or even impossible to monetize the value to a Tribal community of being able to engage in traditional practices without fear of mercury pollution, does not mean it has no value and cannot justify pollution reductions.  We saw it in the Administration’s proposal not to strengthen the national particulate matter standards, despite scientific evidence showing health harms persisting with exposures to ambient air at concentrations even below the current standard. We saw it with EPA’s decision to reverse a 20 year old finding that it is “appropriate” to regulate the coal- and oil-fired power plants, the nation’s largest emitters of highly toxic air pollution that the Agency’s own record shows disparately harm people of color and environmentally disadvantaged communities, and even though the industry had already complied with standards.

These politically-driven decisions, putting industry interests over public health, have been a hallmark of the Trump Administration’s record. It is good news, indeed, that the courts are recognizing, over and over again, that such actions are not lawful, that they cut against the very purposes – environmental and public health promotion and protection — for which the EPA exists, and that they clearly harm people. It is good news indeed that courts are directing this Administration to act as expeditiously as possible to do the job correctly – based in the law, and in science, not politics, and protecting public health.

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