The NRDC’s David Doniger says the court ruling is a setback for EPA head Scott Pruitt’s efforts to deregulate the fossil fuel industry
Dimitri Lascaris: This is Dimitri Lascaris for The Real News. The Trump administration has just lost in court over EPA Administrator Scott Pruitt’s proposal to suspend methane greenhouse gas reduction rules for two years. The reduction was called for under President Trump’s “Executive Order on Promoting Energy Independence and Economic Growth.” This executive order purported to rescind Obama’s Climate Action Plan strategy to reduce methane emissions. In a two to one decision rendered this past Monday, the US Court of Appeals for the District of Columbia ruled that the EPA had overstepped its authority and that the agency must follow a new rulemaking process to fully undo the regulations. With us to discuss the importance of this decision and whether the decision may foreshadow upcoming legal challenges to environmental regulations that the Trump administration is seeking to delay or roll back, is David Doniger. David is the policy director of the Natural Resources Defense Council’s Climate Center and the NRDC’s chief global warming lawyer. He has been at the forefront of the battle against air pollution and global climate change since he joined the NRDC in 1978. He helped formulate the Montreal Protocol, an international agreement designed to stop the depletion of the Earth’s ozone layer, as well as several essential amendments to the US Clean Air Act. In 1993, David left the NRDC to serve on the White House Council on Environmental Quality, followed by key posts at the US Environmental Protection Agency. He joined NRDC in 2001 and has since been working to defend the Clean Air Act from assault in Congress. David joins us today from Washington, DC. Thanks for joining us, David. David Doniger: Thank you very much. Dimitri Lascaris I understand that your organization, the NRDC, and other environmental groups, sued the Trump administration over their attempts to delay the methane reduction rules, so please tell us what is this case about and what does it mean for the Trump administration’s efforts to roll back environmental protections? David Doniger: Right. It’s one of the fundamental principles of environmental administrative law that you have to create or change regulations through the same process. So if you want to tear the building down, you have to use the same steps as it took to build the building up. The Trump administration wants to tear down all the climate and public health protection regulations of the Obama administration. They’ve been overeager to get started, and they just started yanking these regulations out of operation without going through the process, which involves the public and forces them to come up with good legal and factual arguments. So this is an example where the EPA Administrator Scott Pruitt, he got asked by his buddies in the oil and gas industry, “Take this methane standard away from us.” He said, “Well, it’s going to take me a while to formally take it away, but I will suspend it. I will stay it so that you don’t have to comply.” We took that decision to court because he doesn’t have the authority to just yank the rule out of operation the way he did, and the court agreed with us. The court acted very fast, in less than a month, to order that the rule go back into effect. Dimitri Lascaris: You and I are both lawyers. The focus of my practice when I was a practitioner was securities law. My recollection of these rule-making procedures is that initially, certainly that was the perspective of securities lawyers is that they were enacted in order to impede regulatory initiatives that didn’t meet the very low standards for regulatory oversight by the Chamber of Commerce and other business groups. In particular, they were used, these rule-making procedures, to impede rule-making relating to the financial industry by the United States Securities and Exchange Commission. There seems to be a certain delicious irony in the fact that these procedures are now posing an obstacle to those who are trying to tear down the house, as you put it, of regulations enacted during the Obama administration. Is that an accurate description of what’s going on here? David Doniger: Perhaps it is in securities law, but in environmental law, the rule-making requirements since the 1970s were simplified so that they really do make a lot of sense, that an agency has to issue a proposal, and in the proposal has to explain what the legal basis is and the factual basis for what it wants to do. Then it has to have a public hearing and take public comment, and then respond to all the comment in a final decision and, again, explain why what it wants to do fits the Clean Air Act, in this case, and what facts it’s found to support what it wants to do. The courts generally give agencies quite a lot of leeway on factual questions, but they do want to make sure that the procedures are followed so that the public gets a chance to comment. Under the Clean Air Act, this works both ways. Industries get to comment but so do members of the public and organizations like ours that stand for people’s heath and environmental protection. So we’re insisting that those rules be followed, and the court agreed with us. Dimitri Lascaris: If the methane reduction rules ultimately survive the Trump administration’s efforts to water them down or repeal them altogether, how extensive will the methane reductions be, and would they be adequate from an environmental perspective? David Doniger: Yeah. Let’s step back a second. The oil and gas industry releases a lot of methane in the leaks in the pipes and the pumps and the seals and the valves, all the network of stuff from the well pads to the pipes that carry gas across state lines and to the cities and to the power plants and so forth. Methane is the main constituent of natural gas, but you don’t want it to leak. You want it to stay in the pipes, keep it in the pipes, and get it to where it’s supposed to be used. Then if it’s burned there, it’s cleaner than coal. It’s still not as clean as getting your electricity from the sun or the wind, but it’s at least cleaner than coal if you don’t have a lot of leakage. The Clean Air Act provides a way for EPA to write regulations to curb the leakage. The EPA had to start with new sources, which really means new wells and new equipment put in since September of 2015, that turns out to be the cutoff point. But 98% or 95% of the equipment that’s out there pumping natural gas and drilling for it, it was put in earlier. So EPA was supposed to go back as well and follow the standard for new sources with a standard that covers the existing sources. If you did both those things, you would curb the methane leakage from what turns out to be the second largest industrial source of climate changing pollution, the oil and gas system. The biggest one is the electricity system, power generation. But oil and gas is big. This rule would cover 18,000 wells that have been drilled and all the associated equipment since the middle of 2015. You can imagine how many there are out there that are older. We want to see EPA stick with these rules for the new sources and then go on and finish the job by curbing the leakage from the old ones, but Scott Pruitt, who was in the pocket of the oil and gas industry when he was Attorney General for Oklahoma, has continued to behave that way. His first actions were to stop the process of writing rules for the existing sources and now to yank out of effect the standard already there for the new ones. We wouldn’t put up with that, so that’s why we went to court, and the DC Circuit Court of Appeals agreed with that. Dimitri Lascaris: Fracking, I understand, was made exempt under the legislation popularly known as the Halliburton loophole because it came about when Dick Cheney, former head of Halliburton, was the vice president of the United States. Is fracking still exempt under these regulations? David Doniger: Fracking may or may not be exempt from certain rules dealing with water pollution. That’s what that Halliburton loophole refers to. But it’s never been exempt from the Clean Air Act, from the air emissions associated with drilling, whether it’s fracking or whether it’s conventional drilling. Then the processing and piping of all that gas from the well pad to the plants that clean it up to the pressers and the pipelines that bring it to market. That’s all been subject to the Clean Air Act and is still today. Dimitri Lascaris: Fracking, I’m sorry, methane as I understand it makes up only 9% of all greenhouse gas emitted as a result of human activity in the United States. Why is it so important to reduce methane? David Doniger: Methane is an extremely powerful heat-trapping pollutant. On a 100-year basis, which is how it’s often compared, it’s 35 times as powerful as carbon dioxide, which is the greenhouse gas of greatest amount. But each molecule of methane is 35 times more potent on a 100-year basis. If you look on a 20-year basis, which many scientists think is the better comparison, it’s 86 times more powerful pound for pound than CO2. So methane is extremely potent, and the oil and gas system is, when you rack up all of the sources of greenhouse gases, and you weight them by how powerful they are, power plant carbon dioxide is number one, but methane from the oil and gas system is number two. So we want to deal with both. Dimitri Lascaris: Lastly, I’d like to talk about the significance of this decision going forward. Obviously, there are other attempts of the Trump administration to roll back environmental regulations. What are some of the other initiatives of the Trump administration that may be impacted by this decision in your opinion? David Doniger: There’s a whole long list of these quickie suspensions or delays or stays that Administrator Pruitt of the EPA is trying and other cabinet departments are trying, too. I’ll give you some examples. The EPA yanked limits on methane coming from landfills. Scott Pruitt postponed for two years the standards that are supposed to reduce the risk of chemical plants blowing up or catching fire. He suspended for a year limits on pesticides that are meant to protect the workers who apply them, so-called applicators. He has suspended indefinitely water pollution limits for toxic stuff coming out of power plants. There’s a neurotoxic pesticide, which we were trying to get EPA to ban in food uses, he put the decision off for five years. You name it, you keep going. The Bureau of Land Management and the Interior Department also implements methane regulations for oil and gas rigs that are on public lands. The Senate refused to vote those down earlier this year, but Secretary Zinke has suspended them indefinitely just like Pruitt had done on other things. At the Labor Department, there are occupational health rules, toxic workplace contaminant rules that have been suspended. In the Transportation Department, there are rules for limiting the amount of greenhouse gases that come from new highways, taking into account when you’re building highways and so on what the pollution associated with using those roads are going to be, those rules have been suspended. So left and right, they’re yanking Obama era protections, and it’s not limited only to public health and the environment. They’re doing the same thing on financial rules and in other areas. So this decision is really important because it’s the first court ruling on this tactic, and it’s a pretty strong signal from a very important court that there’s going to be no shortcuts. You have to follow the rules. You can’t just yank these rules out of effect without having gone through the process to show that what you’re doing is legal and is supported by facts. Dimitri Lascaris: I’ve been speaking to David Doniger of the Natural Resources Defense Council about a new court decision defeating the Trump administration’s attempt to suspend the Obama administration’s methane reduction rules. Thank you very much for joining us, David. David Doniger: Thank you for having me. Dimitri Lascaris: And this has been Dimitri Lascaris for The Real News.