Schneiderman Takes on EPA for Clean Air Delay (Audio)

overrule the e PAS delay. To talk with us today about the the e PAS delay and what of this rule and what this law, how this lawsuit is going to effect whether the e p A can do it? Are Charles Warren, a partner at Kramer Levin NF Talas and Frankel and Diane Cott's senior research fellow in regulatory policy at the Heritage Foundation. Chuck, let's start with what the e p A actually did here. What have they

announced about this rule? Well, the only way the really announced was that they were delaying the designations of non attainment areas really for ozone when they were supposed to be done by October. They were putting it off for a year. To and I think you have to really just look at this a little bit. And what happens is that there was a new ozone standard set by the regulation in October where they lowered the standard for ozone.

And what's supposed to happen then is that the states are supposed to designate areas that aren't attaining those standards, and then they have to take steps to make sure they can attain those standards. And so what the e p A did here was to say, instead of having to submit those plans by this October, they're delaying it

for a year. UM. Not quite. The states have had to submit their designations, but the e PA isn't going to make a determination on whether e p A finds those attainment areas um And that he is correct though that the you know, there's a year delay, and that year delay has been um you know authorized under the Clean Air Act for UH the e p A administrator in instances where UH the administrator has insufficient information to

make those designations chuck. The d C Circuit last month rule that the e p A could not delay the methane rules on the oil industry for three years, and on Monday ordered through it to enforce the methane rules. Is that precedent the court will follow in this case? Yes, I think they will because I think again, this is one of the this seems to be one of the standard operating procedures of the c p A where they don't actually try to change things right away. They try

to delay. And I don't think even though there's some wiggle room there, I don't think. I don't think it's enough in this case for them to prevail in court. I think based on that methane decision and and and and the full court basically just this Monday said things have got to move forward nine to two, I believe, and so full DC Circuit Court. So I think they will um uh do the same thing in this situation, Diane.

This rule was finalized a couple of years ago, and you know, you mentioned that under the Clear Act Clear Cleaner Act, there may be some ability for the e p A to need, you know, to delay things if they need more information. What more information is it that the e p A is now saying they need. Sure, then that's a good question. But let me just make one additional point, which is um with respect to the methane rule, uh, There's two tracks going on here with ozone.

One is that the agencies and any agency can decide to reconsider a rule on its merits and whether or not they are going to issue a new or different rule. But I know, I know, I'm saying that this is the second track is in this instance where UM a part of the rule, that is the designation's process, is being delayed, but the other standard, the existing standard, is still in effect, and UM states, you know, still have

to abide by that existing standard. But what is needed here, you know, is UM primarily two sets of information that it was problematic from the from the origination of the

rule under the Obama Act. One is that we haven't when the rule, when this new standard was issued, UM, a great many areas of the country hadn't had come into a compliance with either the two thousand and eighth standard or standard, and so they imposed a new standard before we knew what the results were going to be of standards for which many many areas of the country

had not even yet come into a compliance. Secondly, UM, many of the benefits that e p A claimed would result from this rule our consequence not of reductions in ozone,

but in the reductions of particulate matter. The e p A has delayed implementation of a rule that would affect air pollution and lower the the limits for how much ozone can be in the air in the United States, and fifteen states, led by Attorney General Eric Schneiderman of New York, along with the District of Columbia, have sued the e p A to prevent the delay from happening.

We've been talking with Charles Warren, a partner at Kramer Levin, Talas and Frankel, and Diane Katz, senior research fellow in regulatory policy at the Heritage Foundation, about the e PAS action and the state's lawsuit against it. Diane, before the break, we were talking about, UM, you know different ways that the e p A can either try to revise the rule or implement it. But and what we've seen with this e p A is a lot of attempts to delay rules rather than going through the process to revise

them and do new ones. UM, why is it do you think that the e p A would delay this rule rather than if they don't like it, simply trying to revise it to make it more amenable to their

view of how the rule should work. Well, they're doing both and every administration has the right where you know, any new administration, actually any administration has the right to review any rule UH and the administrative procedures acts as that if they want to replace it rule they may, they just have to go through the regular rulemaking procedure. And so the e p A and you know e

p A s under other administrations are doing that. They're looking at rules that have UM in some cases very questionable premises and deciding whether or not the rule is going to stand. And in some cases some rules have and it in other cases, you know, looking at rules that that shouldn't are not warranted, have very you know, questionable UM premises and so ozone clearly falls into that

that category. Now, as I as I mentioned earlier, the e p A with this particular rule has a couple of different ways UM to manage the rule, and one

is to reconsider it, which they are doing. And the second is UM in the midst of the rule being in effect already UM what enforcement actions or what UM you know UM and actions for the going further into that, can they take UM or stop while they reconsider and so what's under reconsideration here um as I said, is that the benefits of this rule are not justified by the cost of the rule in any way, shape or form.

The rule is going to cost, you know, several billion dollars a year, and virtually all of the benefits that are that the e p A identified as the rule having have nothing to do with those own chuck. We know that this is opposed. This rule is opposed by UH fossil fuel companies and other companies, and that prue It has made UH a name for himself by suing

the e PA when he was in Oklahoma. Doesn't the Administrative Procedure Act require the e p A to do certain things like public comment and justifications before what prue It is attempting to do here, Sure, let me let me explain. Let me explain one thing the premise here that's been discussed, frankly, in my view, is is totally wrong.

First of all, we're talking about these criteria pollutants such as OO zone in particulates, and the e p A has an obligation to set standards based on public health with an adequate margin of safety, and that means to protect the most vulnerable in the population. So these standards.

The standards themselves have to be set based on scientific studies and impacts that it's going to have on vulnerable populations, and the standards themselves are not set on a cost benefit basis, and a lot of people like to say, oh, yes, you know, it's benefits and all that. There's Once the standard is set, then the question is how do you

go about the meeting those standards. And those standards are met by through states setting a state implementation plan, and there they can look at ways to ameliorate what might be the economic impacts. But the problem that someone like prow It's going to have is that he goes he's going to go back to reconsider this standard and going through the Administrative Procedure Act, as you indicated June, he's gonna have a hard time justifying why they should change this.

And that's why he uses these backdoor methods and tries to then say well, we're going to delay this, and we're going to keep delayed. Like you know, he talked about a one year delay. He might come in with a new delay. He tried the methane. He tried it two year delay and they said no, we're not going to do that, and I just think that in the end, they're not gonna be able to get away with it. They're gonna have to operate within the law and within

the Administrative Procedure Act and follow the law. And if they're going to change the standards, they're going to have to justify those changes because they will be challenged and they may and I don't think they're gonna be able to justify it based on the public health impacts. And that's really what you have to look at here in

these kinds of standards. Uh, you know, dan uh, the National Medical Association, the American Academy of Pediatrics, the American Public Health Association, the American Lung Association have all come out against congressional attempts to roll back uh this rule. And you know, doesn't that sort of indicate that maybe there there is at least a basis for this that should require the a p A to go through a full administrative process before they delay implementation exactly what it's doing.

There's some confusion here among you guys about a two track process. Okay, So if if e PA wants to reconsider the entire um ozone knacks, you know, the five every five years. E p A is to review the standard for a variety of different pollutants and decide whether or not a stricter standard is necessary in this case, in two thous you know, for two thousand fifteen, they

decided a stricter standard was necessary. Okay. E p A can reconsider that rule and that finding, which it is doing through the through procedures set down in the Administrative Procedures Act. Secondly, e p A under the Clean Air Act has the opportunity has the authority to delay implicmentation of the new standard in the in the face of uncertainty or questions about um whether the designation was correct, whether the standard was correct. I can read you, you

know that part of the of the statute. I don't know why, you know. The attorney here doesn't seem to understand or be cognizant of what the what the statute says. It actually says that outright that such period may be extended for up to one year in the event the administrator has insufficient information to promulgate the designations. Let's let's let's let's Chuck respond to that, because we have about thirty seconds left. Where was his justification for doing that?

Sure he can do that. Where is the justification? Is insufficient information he did he just said were extending it. I didn't see any justification for that, and uh, well, we'll see what they have to say. But I don't I don't see I don't see a justification at this point. Afraid we're gonna have to cut off our disagreement. There are thanks to Charles Warren of Cramer Levin and Diane Ketch of Cats of the Heritage Foundation for being with us