Al Gore's Crass and Dishonest EPA Freakout
Al Gore: “This is a shameful abdication of responsibility by @EPA. President Trump is using a public health crisis to justify a free allowance to pollute our air & water.” Bernie Sanders: “How do the geniuses at Trump’s EPA respond to Americans dealing with a deadly respiratory disease? They allow power plants and factories to spew even more air pollution! Absolutely obscene.”
And so on and so forth. The term “dishonesty” does not quite capture how silly all of this is. EPA may not relax its national ambient environmental quality standards “requisite to protect the public health” with “an adequate margin of safety” unless it undertakes a formal rulemaking process including the public-notice-and-comment requirements of federal administrative law. EPA would have to argue that COVID-19 somehow has rendered the existing standards too strict in terms of the public health requirements of the law, a stance so dubious that it is difficult to see how it would pass muster with scientists, administrators, and the courts. Any such change in environmental quality standards would require years to complete, after which the inevitable lawsuits under the Clean Air Act and Clean Water Act would ensue, consuming years or decades, with the ultimate outcome very much in doubt.
As a more immediate matter, emissions control systems at industrial facilities, powerplants, and the like are highly complex arrays of technologies and sophisticated equipment, individualized on a site-by-site basis and integrated in minute detail with the underlying production equipment. Notwithstanding the cartoonish visualizations of Gore and the others, emissions control systems cannot simply be turned on and off. And do Gore and his allies believe that EPA may relax state emissions limits by federal fiat? No, it may not.
So what has EPA actually done? It is obvious that environmental inspections and reporting requirements might conflict with temporary health guidelines attendant upon the COVID-19 pandemic. Accordingly, the EPA announced:
The consequences of the pandemic may constrain the ability of regulated entities to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.
EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. After this policy is no longer in effect, the EPA expects full compliance going forward.
Like the dog that failed to bark in Sherlock Holmes’ Silver Blaze, notice what is missing from this temporary relaxation of EPA requirements: any change in actual environmental quality or emissions standards:
If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority… as quickly as possible. The notification also should include information on the pollutants emitted, discharged, discarded, or released; the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and the expected duration and timing of the exceedance(s) or releases. The EPA will consult with authorized states or tribes, as applicable, in accordance with the July 11, 2019 memorandum on Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work to determine the appropriate response. Where the EPA implements the program directly, the EPA will evaluate whether the risk posed by the exceedance, disposal, or release is acute or may create an imminent threat to human health or the environment and will follow the steps set forth [earlier].
The EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether enforcement response is appropriate.
That’s it. No change in ambient environmental quality standards. No change in emissions limits. No change in anything that actually affects public health. The only change is in “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance.” Was this really so difficult for Gore and the others? Or do they simply not care about the actual facts?
