“Supreme Court; If It’s Worth It For Corporations, Pollution May Be Okay”: EPA Can Only Regulate Pollution When It’s Cost-Effective
The case, Michigan v. EPA, specifically dealt with the EPA’s regulation of mercury emissions from power plants under the Clean Air Act—a long, twenty-year process that has been opposed by industry at every turn, even as mercury air pollution from coal-fired power plants has ++irreparably poisoned the Great Lakes .
Today, the clock has been set back. In its third 5-4 decision of the day, with Justice Kennedy again providing the swing vote, industry has prevailed. Writing for the court, Justice Scalia held that the EPA had to factor in costs in deciding whether to regulate, not just how to regulate.
If you think about it, this is an impossible task practically and philosophically.
Practically speaking, the regulatory process for mercury has lasted twenty years—in large part because the EPA weighed dozens of options, evaluating the costs and benefits of each. Today’s decision requires the EPA to balance costs and benefits at the very beginning of the process, before either the costs or the benefits are known.
EPA’s position was that, while costs must, of course, be taken into account in deciding how to regulate toxic chemicals like mercury, the initial decision of whether to regulate them should not be dictated by how much it costs to do so. What matters at that point—whether regulation is “appropriate and necessary” under the statute—is only whether public health is at stake.
In policy-speak—as I wrote in a law review article twenty years ago—the difference is between “risk assessment” and “risk management.” Risk assessment is when you notice a leak in your basement, and decide you have to do something about it. Risk management is when you evaluate your options, and decide what to do.
The difference is obvious, and intuitive. But it does mean that the initial decision may not take cost into account.
Thus the EPA argued that the words “appropriate and necessary” do not imply a balancing of costs and benefits, only a determination of public health. Justice Scalia said this was not “reasonable decisionmaking.” As Justice Kagan said in her dissent, the EPA took costs into account later in the regulatory process. But Justice Scalia said that is not enough—the initial decision, too, must include costs.
This is as incoherent philosophically as it is practically. Think about it this way: Who owns the right to your health?
In the EPA’s reasoning, you do. Under the Clean Air Act, if someone else’s activities are going to meaningfully endanger your health, the government is entitled to stop them.
In Justice Scalia’s reasoning, now the law of the land, the toxic chemical emitters do. If it is economically efficient to poison you with mercury—if the costs to them outweigh the benefits to you, calculating an economic value of your health—then they get to do it.
If this seems outrageous, it’s because it is. Justice Scalia had to focus exclusively on the first sliver of the regulatory process in order to make his argument. “EPA’s interpretation precludes the Agency from considering any type of cost,” he writes. But that’s only true at the initial decision of whether to regulate or not (risk assessment). In subsequent decisions of how to regulate (risk management), cost was taken into account many times.
Which is what makes sense philosophically, as well as practically. Deciding whether to regulate a toxic substance should not be an economic decision. Deciding how to do so should be—of course, the government should choose the most efficient method of regulation, and balance costs and benefits appropriately. But the decision of whether a toxic substance is toxic is a matter of science, not money.
Zooming back a bit, Michigan v. US now starts to look a lot like the corporations-are-people cases like Citizens United and Hobby Lobby. In this growing body of cases, corporate interests have been equated with individual ones. Corporations have rights to free speech and the free exercise of religion.
Now their right to make money running dirty power plants is equated with the right of human beings to breathe free of mercury pollution. Your rights, their rights—what’s the difference?
Ironically, Justice Scalia’s originalism—which last week had him arguing that if a practice could be banned in 1868, it could be banned in 2015—would have cut the other way here, if he took it seriously. For the first hundred years of US history, there were no corporations as we know them today. Corporate charters were time-bound, limited, and revocable. Only in the Gilded Age did they attain “legal personhood” as we know it today.
This is the point conservatives often miss in decrying the growth of government and regulation. Yes, government has grown well beyond anything the Founders could have imagined. But the Founders could not have imagined today’s mega-corporations either.
Peabody Energy, one of the primary backers of the current lawsuit, has an annual revenue of $6.79 billion. In 1812, the largest non-banking corporation in America, the American Fur Company, was worth about $1 million—about $17.2 million in 2015 dollars.
In other words, just one of the corporations fighting the EPA’s mercury regulations is worth 394 times the largest US corporation in existence two centuries ago. While the growth in governmental power since then, represented by regulations like the Clean Air Act, has indeed been significant, it is dwarfed by the growth in corporate power.
Michigan v. US now stands for the principle that corporate interests are equal in kind to human interests. Whether the EPA should regulate mercury depends on whether it’s cost-effective to do so, treating the costs to industry and the benefits to health equally.
Because corporations are people, right?
By: Jay Michaelson, The Daily Beast, June 29, 2015
Five years after the Deepwater Horizon rig blew up, the Chandeleur Islands look alive off the coast of Louisiana.
The beaches are sugary white and unstained by oil. The water is green and full of fish. Birds are everywhere — laughing gulls, willets, terns, skimmers, egrets, oyster catchers, and herons.
A rookery that some feared would be annihilated by the spill is thriving, the mangroves bobbing with hundreds of pelicans, old and young.
It’s glorious to see, yet also deceiving. For 87 straight days in 2010, crude oil gushed nearby from a broken well in the Gulf of Mexico — 172 million gallons, according to the U.S. government, though nobody really knows how much.
And nobody can say how much of it remains in the water. Most of the oil has likely dissolved or evaporated, but panels of scientists assert that millions of gloppy gallons still spatter the sea floor.
The Chandeleurs, a crescent barrier chain that’s part of the Breton National Wildlife Refuge, were among the first to get oiled after the BP blowout. It was also the first place where dying sea birds were found.
A six-foot sand berm was hastily constructed to contain the oil at the northernmost Chandeleurs. Whether it was because of that, the tides or favorable winds, the islands were not hit as brutally as some coastal areas.
Seeing all this life on the water at sunrise, one can’t be blamed for thinking everything’s fine, pretty much back to normal. That’s what you hear from BP, too, but it’s not entirely true.
Since the spill, bottle-nosed dolphins have been dying at about three times the normal rate in the northern Gulf. Deep-water corals have shown lasting damage. Oil traced to the BP blowout has been found in the livers of red snapper and tilefish. Unexplained lesions and tumors have been observed in bottom-dwelling fish.
BP says the seafood taken from the Gulf is safe to eat, and tests much lower for oil residues than is required by the Food and Drug Administration.
The oil giant has spent a fortune cleaning up its image and the mess in Louisiana, Alabama, Mississippi, and Florida, including $13.7 billion in claims and settlements. The company says its drilling operations are much safer now.
Because the whole world got to watch the Deepwater Horizon disaster live — literally streaming — politicians who favored more offshore exploration retreated temporarily. They were counting on Americans to have a short memory.
Then, in January, the Obama administration proposed a plan that would open offshore oil leases in the Atlantic Ocean, from Virginia to Georgia. Ten new leases would also be granted in the Gulf of Mexico; one is in the eastern zone near Florida, where opposition to coastal drilling traditionally has been fierce.
Yet, except for criticism from environmental groups, there hasn’t been a loud public outcry over Obama’s plan in Florida, or in any of the states with tourist economies that depend on clean, untarred beaches.
Virginia’s two U.S. senators, both Democrats, praised the president’s drilling program, saying it “should result in the safe, responsible development of energy resources.”
Because big oil companies never screw up, right?
Apparently, five years is the political probation period after a man-made catastrophe. Obama has moved to allow seismic testing for possible offshore oil and gas reserves all the way from Delaware to Cape Canaveral.
The process involves the staccato firing of big compressed air guns deep in the ocean over periods of weeks. Prominent scientists from Duke, Cornell and other institutions say the method poses a “significant threat to marine life.”
In a rare display of attentiveness, Florida’s Department of Environmental Protection last month wrote to the feds, seeking postponement of seismic permits until more is known about how the blasting air guns affect whales, fish and sea turtles. (Negatively would be a good guess).
On a boat in the Chandeleurs, under a sky filled with birds, it’s tempting to marvel at nature’s rebound and push aside the dreadful images from the spring of five years ago.
There are no obvious signs of the BP spill here. Even the protective berm is gone, obliterated by Hurricane Isaac in 2012.
Yet the truth is that terrible damage was done by that 87-day flood of oil into the Gulf, and many communities suffered immensely. Since then, numerous spills have occurred both on land and in water in this country, none of them on the scale of the Deepwater Horizon but still a signal for extreme caution.
Nobody knows when the next big ocean blowout will happen.
Everything out there looks just fine.
Until one day it isn’t.
By: Carl Hiaasen, Columnist for The Miami Herald; The National Memo, May 5, 2015
“Keystone Isn’t A Futile Fight”: The Owners Of The Keystone Pipeline Just Canceled A Project In Canada
TransCanada on Thursday announced a two-year delay to its plans to move the Canadian tar sands. The company is cancelling its plans to build a controversial export terminal in Quebec, citing environmental concern over the endangered beluga whale. This means a delay to plans for finishing the Energy East pipeline, now set for 2020. In the meantime, TransCanada will search for a new location for its port.
For once, then, Canadian oil news isn’t about the TransCanada-owned Keystone XL, which has faced a six-year delay as the Obama administration sits on a decision to issue a permit. At least not directly, anyway. Energy East, once completed, would be even bigger than Keystone XL, delivering 1.1 million barrels of crude oil per day, compared to Keystone’s 800,000 barrels. As its name implies, the pipeline would run from the Alberta tar sands eastward to the shipping lanes of the Atlantic coast.
Not only are Keystone and Energy East similar battles, but proponents (and opponents) often tie the two pipelines’ fates together. Keystone opponents say building that pipeline would ensure tar sands extraction continues at a rapid pace, setting the world on track for severe climate change. Proponents argue that Keystone doesn’t matter either way, because other pipelines like Energy East make tar sands development inevitable. If the United States doesn’t build its pipeline, they say, Americans will miss out on the economic benefits. “We don’t think there’s any way that the oil will stay in the ground,” Matt Letourneau, a spokesperson for the U.S. Chamber of Commerce, said last year. “Certainly the market will find a way.”
But so long as there are delays, tar sands development isn’t inevitable because Energy East’s future, like Keystone’s, is far from settled. Oil companies are still in the middle of working out how to get the landlocked tar sands to the coasts for refining and shipment, and during their delays on multiple fronts, Keystone isn’t a futile fight.
The delay could provide a boost to organizers trying to delay other tar sands projects. Each of these pipelines face a similar environmental playbook: Delay as long as possible in the hopes that it becomes unprofitable or impossible for companies to pursue their plans. Keystone has faced years of delay, and now Energy East faces its own uncertain future. Environmentalists weren’t the only reason for TransCanada’s change of plans. Because oil prices are low right now, companies have little incentive to pursue their plans to extract costly tar sands for little profit.
TransCanada still has a strong incentive to find a new port and finish construction. Oil prices surely will rebound eventually, making the tar sands profitable once again.
“I don’t think you can look at this as a major impediment to the future of oil sands development but it certainly speaks to the opposition to pipelines, the anxiety about shipments of oil and, of course, to the increasing importance of environmental protection to the public,” Andrew Leach, an economist with the University of Alberta, said. “The beluga is an iconic species, so I think the writing was on the wall for this once the risk to habitat was made clear, in particular in Quebec.”
In the short-term, however, this is a win for environmentalists. And it may even help them in their fight against Keystone.
By: Rebecca Leber, The New Republic, April 2, 2015
Koch Industries, considered Public Enemy Number One by many environmentalists, is blanketing the airwaves with an ad campaign touting its contributions to society.
Charles and David Koch, billionaire moguls of a fossil fuel empire, sign off their company’s self-aggrandizing ads with the triumphant exclamation “we are Koch!”
The main ad in their series of spot commercials features a kaleidoscope of bucolic farms as well as bustling factory workers and lab technicians. A narrator informs us that the company has a 60,000 strong workforce dedicated to providing a broad range of products to” help people improve their lives.” [“We Are Koch.”]
There is no mention of this second largest privately held company in the nation being slapped with numerous fines for pollution offenses. There is nary a word about the Koch brothers using their immense wealth to finance the debunking of climate change. No reference is made to the company’s lobbying efforts to thwart clean, renewable energy expansion and weaken anti-pollution regulations.
One of the ads features Claire Johnson, an environmental engineer lauding the work of her employer, Flint Hill Resources, a Koch chemical refining multi-site operation.
“If a pollution incident does occur,” Johnson declares as she stares into the camera, “we are great at self-regulation…” [We Are Koch.]
Koch’s perception of its self-regulatory skills is not shared by government authorities responsible for safeguarding our air, water and land. You can understand why when you learn that the very same Flint Hill Resources was recently fined $350,000 for allowing a Texas chemical plant to leak a lethal amount of hazardous emissions.
To counter the Koch’s pervasive propaganda, an advertising rebuttal is needed. Television satirist Jon Stewart took a one-time stab with a video parody displaying oil fields and polar bears. The video was accompanied by a supposed Koch narrator rhapsodizing that “with our devotion to fossil fuels, we [Koch] make your planet warmer and water more flammable while lubricating your birds and displacing your polar bears.”
Unfortunately, Stewart doesn’t have the resources to saturate the electronic mass media with his visual message. It is a shame there is no major ad campaign offering such responses as something like the following. Picture a Koch Industries chemical plant discharging suspicious-looking affluent into a waterway with a narrator boasting “here is a Koch plant operating at full tilt.” A sonorous voice then intones “They Are Koch.”
How about a video in which a melting iceberg collapses into the sea as a Koch narrative drones “global warming is a natural phenomenon. There is no human-induced climate change. They Are Koch.”
The camera zooms in on a bulldozer unloading toxic coal residue into a hazardous waste landfill with a voice-over proclaiming “renewable energy at this stage is unaffordable. That leaves the plentiful coal and other fossil fuels we supply as the only practical alternatives for the foreseeable future. They Are Koch.”
Koch Industries employs a lot of people, but it jeopardizes a lot as well.
By: Edward Flattau, The Blog, The Huffington Post, March 25, 2015
It’s a very exciting time in the world of oil geopolitics, if you’re a fan of juvenile saber-rattling in the service of making billionaires even richer:
The fracking boom has driven US output to the highest in three decades, contributing to a global surplus that Venezuela has estimated at 2 million barrels a day. That’s equal to or more than the production of six OPEC members…
Conventional oil producers in OPEC can no longer dictate prices, United Arab Emirates Energy Minister Suhail Al-Mazrouei said in an interview in Vienna this week. Newcomers to the market who have the highest costs and created the glut should be the ones to determine the price, he said.
“That is what OPEC is hoping for,” said Carsten Fritsch, a commodity analyst at Commerzbank in Frankfurt. “It’s the question of who will blink first.”
OPEC will feel pressure too, with prices now below the level needed by nine member states to balance their budgets.
The United States has been making it a matter of public policy to poison its own groundwater and stress its fault lines by fracking, steaming and acidizing for oil. This is partly in order to enrich its own oil magnates, and partly to stick its thumb in the eye of Russia, Venezuela and OPEC. The Hillary Clinton-led state department has only been too happy to strongly encourage shale gas fracking in Europe in order to frustrate Russian ambitions as well.
So OPEC has been flooding the world with cheap oil partly out of revenge, partly in a regional power play against Iran and others, and partly to disincentivize Western fracking by making it economically unfeasible.
It’s all good fun, and I’m sure the players feel like they’re doing great work to advance the interests of their “good people” against all those other “bad people” in those nasty other countries.
Of course, what almost no one is paying attention to in the middle of all this is the impact on climate change and the planet. We now know beyond a doubt that if all of this new shale oil comes out of the ground and gets burned into the atmosphere as CO2, the world’s youngest inhabitants may not have many habitable places left to live by their retirement age.
But that’s not so important compared to frustrating the economic ambitions of that rival nation-state, right?
By: David Atkins, Political Animal, The Washington Monthly, November 29, 2014