EPA Said “No.” Petitioners Respond.


Petition to Phase Out Greenhouse Gas (GHG) Pollution to Restore a Stable and Healthy Climate

EPA Said “No.” Petitioners Respond.

For Immediate Release: Contact
Dan Galpern, General Counsel and Executive Director
Climate Protection & Restoration Initiative (CPR Initiative)
e: dan.galpern@CPRclimate.org

Background: On June 16, 2022, on behalf of five expert Petitioners and two public interest groups, Dan filed our far-reaching Petition to Phase Out GHG Pollution to Restore and Stable and Healthy Climate. On September 14, EPA rejected the Petition.

Key Petitioners Respond:

James Hansen, Individual Petitioner, Climate Scientist & CPR Initiative Advisor

EPA is blowing an enormous opportunity if they do not reconsider, which they can do. 

The correct response is for the Agency to render an “unreasonable risk determination” in response to our Petition. EPA can then start a rulemaking in which they can impose an across-the-board rising fee on CO2 pollution, as supported by thousands of economists and many others. That will kick-start rapid movement to clean energy nationwide, far more efficiently than expensive subsidies that add a debt burden for young people. A simple rising carbon fee can be made near-global via border tax adjustments. In contrast, subsidized emission reductions lower fossil fuel demand and global fossil fuel price, thus spurring fossil fuel use elsewhere.

I hoped for much more from this EPA and the Biden team. We are simply asking them to use their existing authority under the law. President Biden’s legacy and, most important, the future of young people, are at stake.

Donn Viviani, Individual Petitioner, former EPA scientist, CPR Initiative Board President

The EPA denial didn’t answer the important question, and what it did say was misleading. Congress passed TSCA so EPA could regulate “unreasonable risks” from chemicals like greenhouse gases (GHGs). In fact, TSCA compels EPA to regulate chemical risks that are unreasonable. 

Petitioners asked a simple question: Are GHGs an unreasonable risk to the future of our children and their children? EPA admitted that climate change amounts to an “undeniable, urgent crisis,” but the Agency avoided the central question, Whether the risk imposed by GHG pollutants is unreasonable. That specific avoidance allowed EPA to decline to restrict GHG pollution under TSCA. EPA instead claimed that the IRA plus other current and intended actions are sufficient. But no one really believes that.

A price on carbon to reduce emissions, a fee imposed on polluters to pay for legacy carbon drawdown, both of these actions are available to EPA in rulemaking once the Agency decides GHGs pose an unreasonable risk. Those are the most efficient paths forward under existing law, if EPA really wants to stop polluters from baking the planet and acidifying the ocean. 

Of course, EPA just might have a secret plan to avert catastrophic climate change. If so, now might be a good moment to let us all in on it. Who knows? We and other members of the public just might have something to add. Back to reality: At least our proposal to make full use of TSCA’s on-point tools and substantial authority is no secret, and we remain open to working with the Agency to make it happen.

We cannot and will not give up, and I hope many more will join us.

John Birks, Individual Petitioner, atmospheric scientist, and CPR Initiative Board Member

I feel that the EPA just missed out on a great opportunity to make use of existing authority to put us on a path to not only phase out greenhouse gas emissions but also remove the excess burden of legacy emissions.
I strongly support the clean energy investments made in the recently passed Infrastructure Investment and Jobs Act and Inflation Reduction Act measures that were supported by President Biden. But, as Dan pointed out in his recent post, even if current and projected EPA rules put us on track to meet the Administration’s 2030 GHG reduction target, it will still be true that CO2 and many of the other GHG pollutants will still be at higher concentrations in the atmosphere than they are now. Climate change due to excess GHGs is already causing drought, dangerously low water supplies and massive forest fires in the Western U.S., while at the same time stronger storms with increased flooding in the East.
Current policies and investments should, indeed, slow the rate of increase in the atmospheric concentration of CO2 and methane, but what is required is a substantial reduction in their concentrations. That requires a rapid phase out of GHG pollution, as well as removal of a substantial amount of the overburden – both achievable through rule-making under TSCA.
So, I hope that EPA will reconsider and reverse its decision.

Richard Heede, Individual Petitioner, Climate Accountability Analyst & CPR Initiative Advisor

I was struck, quite frankly, by how much the EPA rejection letter reads like a White House press release. Particularly its reliance on preliminary estimates of emissions reductions from the IRA and its assertions about unspecified new rules it purportedly plans to issue sometime in the future. Talk about lack of specificity!

In the days prior to the Agency’s deadline, through its comment on the record, the American Petroleum Institute challenged Petitioners right to seek EPA’s use of TSCA to restrict ongoing and legacy GHG emissions, and implied that we were seeking “to supplant [other] environmental statutes designed to address combustion byproducts.” API had every right under the First Amendment even to comment in this tendentious and inaccurate way. But I remain concerned with the strong influence in recent history of big oil, gas, and coal, in bending US climate policy. That influence is clearly manifested in the Inflation Reduction Act’s major gifts to fossil fuel interests. I hope that here the strong parallel in EPA’s response is coincidental merely.

EPA could have taken up the opportunity we presented it in our Petition to fill in some of IRA’s gaps and offset some of its weaknesses. The IRA was virtually all carrots and no sticks. A rulemaking under TSCA could have supplied the sticks.

We will need to figure out another way forward, now, to compel this to be done under the law. My co-petitioners and I are in this for the long haul, but I wish our expert federal environmental agency would have been willing to exercise a greater measure of leadership in this regard.

Lise Van Susteren, Individual Petitioner, physician & writer, & CPR Initiative Board Member

This EPA decision to deny our Petition – in a very real policy sense, to deny the reality of our climate emergency – is heartbreaking.

As a mental health professional, I am acutely aware of what happens when we ignore or downplay the consequences of self-destructive behavior – as we are doing here with respect to the climate crisis. In my work with young people, particularly, I know of the depth of their anguish, anger, and fear that our government, and the institutions upon which we all count to survive, are leaving opportunities on the table that would address the rising danger.

Indeed, I tried at several junctures to impress upon the Agency that young people desperately need a stronger federal response to the crisis that they now properly perceive.

Climate instability is exacting not only a physical toll, but an emotional toll: for as bad as the storms are outside, the storms inside will be even worse. They are and will continue to permeate every aspect of society – affecting our economies, our politics, our belief in a livable future. There is still time, but not much, if we retain personal integrity and exercise courage to put aside politics and make people, particularly young people, our priority.

John Fitzgerald, Counsel to Methane Action & Vice-President of the CPR Initiative Board

Pursuant to the Infrastructure Act and the Inflation Reduction Act, we will now be paying many billions of dollars for clean energy infrastructure and to create a market for carbon removal efforts. A number of techniques to remove carbon dioxide and methane from the atmosphere – some of them, highly promising – are now being pursued, albeit solely at taxpayer expense. 

A critical question remains: Will the fossil fuel industry be required to contribute to this enterprise? As Dan has noted repeatedly, the big oil, gas and coal companies have profited mightily by their ability, to date, to use the atmosphere as a free and open dump for their waste products. Will it be taxpayers alone who are forced now to foot the large bill to remove excess CO2 and CH4? Or should the major polluters be made to pay?

CPR Initiative and Petitioners Hansen, Viviani, Birks, Heede, Susteran have provided EPA (and the nation) with their crystal-clear answer: Big oil, gas and coal should be compelled to pay a fair share, in order to continue to emit during a GHG phase out period, and also to clean up their mess. Employing the clear terms of the Toxic Substances Control Action, our Petition paved that path, but in this first go-round EPA nonetheless managed to lose its way. We have options under the law to help them get back on track. Stayed tuned.