Obama Blocks Ozone Rule, Chinese Groups Criticize Apple, Nuclear Update, Cheney's Memoir, Expanded Lacey Act (by Bob Percival)

After fierce lobbying from industry groups, President Obama announced on Friday September 2 that he had directed EPA Administrator Lisa Jackson to withdraw a proposal to tighten the national air quality standard for ozone. President Obama cited “the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover” (http://www.whitehouse.gov/the-press-office/2011/09/02/statement-president-ozone-national-ambient-air-quality-standards). In a memo directing EPA to reconsider the rule, OMB’s Cass Sunstein noted that EPA could consider a new standard in two years and that other recent rules also will reduce ozone pollution (which presumably would reduce the cost of meeting a tighter standard). Sunstein’s letter is available online at: http://www.whitehouse.gov/sites/default/files/ozone_national_ambient_air_quality_standards_letter.pdf).

The administration’s decision leaves in place the 2008 ozone standard (0.075 ppm over 8 hours) that the Bush administration had promulgated over the unanimous objections of EPA’s Clean Air Scientific Advisory Committee (CASAC). CASAC had recommended that the standard be set within a range from 0.060 to 0.070 ppm. The best that could be said for Obama’s decision is that he is being honest about the reason for the action, unlike his predecessor who frequently directed EPA in secret to weaken regulatory decisions without publicly disclosing the real reasons. And the Obama administration did pledge to complete a new review of the ozone standard by 2013. But it sets a terrible precedent by buying into industry scapegoating of environmental regulations for economic problems, lending credibility to the “now is not the time” argument that always is used to oppose new environmental laws or regulations. In 1990 when the spectacularly successful 1990 Clean Air Act Amendments were about to be adopted by Congress, industry opponents assembled a group of Nobel Prize-winning economists who argued that it would seriously harm the economy, an argument repeated in 1997 when EPA tightened air quality standards. Both predictions proved dead wrong, see Motoko Rich & John Broder, A Debate Arises on Job Creation v. Environmental Regulation, N.Y. Times, Sept. 5, 2011, at B1, but President Obama has now caved to similar pressure, which will make it harder to explain why other EPA regulatory actions also should not be put on hold.

Of course the “now is not the time” argument is remarkably versatile and is employed even in times of robust economic growth when it is argued that “now is not the time” because any new regulation will kill the robust growth. Actually the ozone rule is particularly ill-suited as a target for this argument because it would take many years to implement since states first have to change their implementation plans, obtain EPA approval, and then issue permits. Describing America’s polluting coal, oil and chemical industries as “masters of the art” of “economic scare tactics,” Christopher Swann reminds us that industry claimed the 1990 Clean Air Act would increase electricity prices by 13% when in fact they fell by 20%. Christopher Swann, “Backing Off Air Rules,” N.Y. Times, Sept. 5, 2011, at B2. Moreover the decision to scrap the new rules penalizes companies who invested in new pollution control technology in anticipation of the existing Clean Air Act being implemented in a timely fashion. The decision will hurt the natural gas industry, which had anticipated increased demand for its product as the ozone rules forced dirtier energy providers to close. Liam Denning, Obama Burns Gas Drillers on Ozone, Wall St. J., September 3-4, 2011, at B16. For a devastating insider’s account of the history behind this decision by NRDC attorney John Walke see: http://switchboard.nrdc.org/blogs/jwalke/the_president_sabotages_clean.html.

Of course the Clean Air Act makes it illegal for EPA to consider economic impacts when setting purely health-based standards like national air quality controls (costs can be considered at the implementation stage). Also the President does not have the legal authority to dictate to the EPA Administrator what decision she should make in setting air quality standards under the Clean Air Act. See Robert V. Percival, “Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?” 79 Fordham L. Rev. 2487 (2011). However, there is widespread agreement that the President could fire EPA Administrator Lisa Jackson if she refused to comply with his directive.  On Friday Jackson appeared to accept the President’s directive while definitely not endorsing it. After citing EPA’s other actions to control air pollution during the Obama administration, she concluded: ”We will revisit the ozone standard, in compliance with the Clean Air Act.”  Her statement is available online at: http://yosemite.epa.gov/opa/admpress.nsf/0/E41FBC47E7FF4F13852578FF00552BF8

Last week five Chinese environmental groups led by Ma Jun’s Institute for Public and Environmental Affairs released another report criticizing pollution by Chinese suppliers of Apple. The report, entitled “The Other Side of Apple 2” is based on data collected during a seven-month investigation of Apple’s suspected suppliers. It finds that 27 of these suppliers have released toxic pollutants that have harmed communities or the environment. Apple executives responded to the report by reiterating the company’s commitment to environmental compliance by its suppliers and by agreeing to speak with the authors of the report. Last week the World Bank released a report urging China to act to reduce the rise of non-communicable diseases including diseases caused by air and water pollution. The report, entitled “Toward a Healthy and Harmonious Life,” is available online at: http://www.worldbank.org/content/dam/Worldbank/document/NCD_report_en.pdf. The report notes that China can save a staggering $10.7 trillion from 2010 to 2040 if it can just reduce by 1% its rate of cardiovascular disease.

Japan’s new prime minister Yoshihiko Noda confirmed that he supports a gradual phaseout of nuclear power. Last week, in his first address to the Japanese nation, Noda stated that it would be “unrealistic” to build any new nuclear power plants or to extend the life of existing plants in light of the severe accident at the Fukushima Daiichi reactor complex. Last week the Associated Press released the results of a lengthy investigation concluding that seismic risks at U.S. nuclear power plants have been significantly underestimated, by a figure of 24 times in one case. The study concluded that nearly one-quarter of the 104 nuclear plants in the U.S. may need to be modified to protect against seismic risks. Dina Cappiello & Jeff Donn, Quake Risk to Reactors Greater than Thought, AP (http://hosted.ap.org/dynamic/stories/U/US_NUCLEAR_PLANTS_EARTHQUAKES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT). On September 1 the U.S. Nuclear Regulatory Commission (NRC) released for public comment a draft letter requesting its licensees to reevaluate their facilities’ vulnerability to earthquakes and to supply the NRC with data to assist in the revision of safety standards for seismic risks. 76 Fed. Reg. 54507 (Sept. 1, 2011).

Like President George W. Bush’s memoir (see Nov. 14, 2010 blog post), former Vice President Dick Cheney’s “In My Time” almost entirely ignores environmental issues. The words “climate change,” “global warming,” “Kyoto Protocol,” and even “Christie Todd Whitman” are never mentioned in his book. One would have thought Cheney would be proud enough to explain how he engineered President Bush’s repudiation of his campaign pledge to control emissions of CO2 or his successful effort to neuter EPA Administrator Whitman, issues covered extensively in Bart Gellman’s Angler and Whitman’s own memoir (“It’s My Party Too”). However, Cheney cannot resist describing his failed energy task force as a triumph, not because it changed policy, but rather because he was able to defeat lawsuits seeking greater disclosure of its operations. Cheney portrays environmentalists as naive for promoting renewable energy and expresses pride in his famous statement that “Conservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy.“ Cheney claims that environmentalists do not understand the need to increase the domestic supply of fossil fuels and again raises the bogus specter of the lights going out if we do not do so. He never mentions Ken Lay or the role of Enron’s energy traders in engineering the brief escalation of electricity prices in California that initially was used to justify formation of his task force.

In 2008 the federal Lacey Act that makes it illegal to import wildlife in violation of U.S. or foreign laws was amended to extend its protections to forest products. The law requires companies to use “due care” to ensure that their suppliers of forest products are in compliance with the law, making it a powerful tool to decrease demand for the fruits of illegal logging operations. Federal agents recently raided a Gibson Guitar factory in Tennessee to investigate whether ebony from India was shipped to the company in violation of Indian law. The raid has been taken as a signal that the U.S. Department of Justice will aggressively enforce the Lacey Act as extended to forest products. Anderson Hardwood Floors expresses strong support for the law as a means of protecting it from unscrupulous competitors who obtain wood through illegal logging. Anderson, which now makes 90% of its products in the U.S., imports wood only from Paraguay where it can be confident that its suppliers are complying with the law. Kris Maher & James R. Hagerty, Forestry Law Splits Wood Industry, Wall St. J., Sept 2, 2011, at B2.

Last week I began teaching Environmental Law at both the Georgetown University Law Center, where I am a visiting professor this fall, and the University of Maryland School of Law. There are 56 students in my Georgetown class and 66 in the Maryland class. In both classes we are using my casebook Environmental Regulation: Law, Science and Policy, which has just been issued by Wolters Kluwer in an electronic edition that enables professors to annotate and update the casebook instantly and to embed interactive video links into the text. The new SmartBook technology also enables students to brief cases, highlight the text, prepare outlines, and access the text from mobile media. These are really exciting developments that have been enthusiastically embraced by the students who have elected to use the SmartBook version of the casebook. For more information see my casebook website at http://www.erlsp.com.