EPA Takes a Pass, But We Will Not Take “No” for an Answer

On September 13, 2022, on the South Lawn of the White House, following a month of political planning, in an event that reportedly “had all the markings of a pep rally,” President Biden led a celebration of the Inflation Reduction Act (IRA).

Sharing the stage with House Speaker Pelosi, Senate Leader Schumer, and West Virginia Senator Joe Manchin (the great James Taylor had already appeared, and taken off) the President called the measure “the most aggressive action to combat climate . . . [o]ver $360 billion.”

Importantly, the President also declared, using the future tense, that “we are going to take the most aggressive action ever, ever, ever to confront the climate crisis and increase our energy security. . . And that’s not hyperbole, that’s a fact.”

And yet, on September 14, 2022, with nary a hint of the irony, the Environmental Protection Agency, hiding behind the IRA and various unspecified future developments, rejected our Petition to Phase Out Greenhouse Gas Pollution.

We filed that Petition pursuant to the Citizens’ Petition section of the Toxic Substances Control Act (TSCA) on June 16. Our filing was on behalf of renowned climate scientist James Hansen, veteran EPA scientist (and CPRI Board President) Donn Viviani, eminent emeritus professor in atmospheric chemistry John Birks, expert climate accountability analyst Richard Heede, and the accomplished physician and writer Lise Van Susteren, along with the exceptional research and action group Climate Science, Awareness and Solutions, and Climate Protection & Restoration Initiative.

Our Petition called upon the Agency to undertake a rulemaking — replete with full public participation — utilizing The Environmental Statute That Could Save the World as the editors of the Washington Monthly titled my recent op-ed.

In its response, EPA agreed with Petitioners that the terms of TSCA apply to ongoing GHG pollution. EPA also agreed with Petitioners (and the President) that the problem is one of a full-blown climate crisis. And yet, the Agency disputed that action under TSCA is necessary. [Further, it flatly disputed that TSCA regulation can reach “legacy disposals” of CO₂, methane, and the other GHG pollutants.]

As to EPA’s claim that a new rule under TSCA is “unnecessary,” the Agency simply and flatly declared that our nation will meet its ambitious GHG reduction targets — “of 50-52% below 2005 levels by 2030, and net zero emissions by no later than 2050” — solely “through benefits from actions already implemented, as well as future anticipated mitigation efforts.”

But just what, we might ask, somewhat impolitely, are those “future anticipated mitigation efforts”? EPA simply did not say, though it did further describe them as “continued executive branch, state, local, and private sector actions.”

IRA advocates had earlier leapt to embrace preliminary emissions reductions estimates — even though those depended on an unusual alignment of uncertain future events (such as a massive buildout of new pipelines). As to such estimates, then, EPA should have proceeded cautiously. Instead, the Agency uncritically adopted them.

EPA’s essay of rejection also contains a few logically galling aspects including — as Donn Viviani has pointed out to me — its insistence that Petitioners should have proven a negative. In essence, the agency argued that we should have demonstrated that implementation of the IRA and the Infrastructure Act, coupled with new EPA rules that might or might not materialize, would fail to meet US targets.

And so, the agency sought to erect an impossible burden. Importantly, that purported burden is based on an irrelevant standard. Indeed, the Toxic Substances Control Act clearly establishes the operative question: Whether or not certain chemical substances (here, GHG pollutants) “present an unreasonable risk of injury to health or the environment.”

Now let’s assume, generously, that the IRA and future EPA actions will secure significant additional emissions reductions over the next several decades. Still, those may not suffice where such pollutants must be virtually eliminated, and a substantial quantity of excess legacy carbon also must be removed, as rapidly as feasible.

On this point, the science is crystal clear, as we establish in the Petition: emission reductions (and appropriate carbon removal) delayed is environmental justice denied. The risk, therefore, of necessity remains unreasonable until we have restored a stable and healthy climate system.

EPA’s claim to agree with Petitioners that the climate crisis now imposes on our nation an existential threat rings hollow, where the Agency still fails to take the strongest actions available to it under existing law. Indeed, we do not even have a genuine carbon price in the United States, as Petitioner James Hansen repeatedly and properly points out. And so, while it may be true that the IRA amounts to the strongest climate action undertaken by Congress in recent years, that remains a very, very, very low bar. More, far more, is required, as Petitioners clearly demonstrate in the Petition.

And so, the Agency blew it — full stop. Its short-sighted rejection necessarily presses us into Phase II of this critical initiative, namely, to weigh all available options under the law. Specifically, we have 60 days from EPA’s rejection to file for judicial review. At the same time, we are considering other, perhaps additional, action. What I can say openly here, for now, is that CPR Initiative and Petitioners simply will not take “No” for an answer.

But we do need your redoubled support. Please consider providing your most generous gift as we consider our next steps, as necessary, to turn this thing around.