EPA is well aware of all of these things, and they're worried about it, and all the staff is running around wishing that they could do something. The problem is they felt that they didn't have the authority and that none of the laws gave the authority. And in fact, the authority has been hiding in plain sight the entire
time under the Toxic Substances Act. But there was sort of a perceived wisdom that the Toxic Substances Control Act didn't work based on how the Agency got hammered over asbestos. And it was actually the agency's fault because they didn't do their due diligence, but they thought they had a slam dunk there.
It didn't work.
They kind of threw up their hands and say, we have to work under the Clean Air Act, which is an abysmal law.
Welcome back to drill that I'm naming Westervelt. A lot of kin folks are moments waiting for the Supreme Court to rule in West Virginia versus APA. That case questions whether the EPA has the authority to regulate greenhouse gas emissions from power plants, particularly beyond the immediate area of the plants themselves. Folks are worried the court might come down with a broad ruling that severely limits the agency's ability to regulate greenhouse gases. Period. The other end of
the spectrum is entirely possible too. The case argues about a problem that no longer exists, the Clean Power Plan. Historically, when the Court is asked to rule on something that has become a moot point over the course of litigation, they opt not to rule. In this case, it's unclear which direction they'll go. While we wait to see what will happen there, it's important to remember a couple of things. First,
West Virginia versus EPA deals specifically with the Clean Air Act. Historically, the Clean Air Act is the law that's been invoked in various efforts to deal with greenhouse gases, and for obvious reasons, if you're trying to regulate something that's released into the air, it makes sense to invoke the law to protect the air. But first of all, the EPA absolutely can continue to regulate particulate matter under the Cleaner Act. That's a type of air pollution that's produced by the
same activity that produces greenhouse gas emissions. The combustion of fossil fuels. And secondly, the Cleaner Act is not the only law that's relevant here in the intro there you heard former EPA scientist Don Viviani speaking at a press conference earlier this month.
I was actually director of Climate Policy Assessment Division for a while in the nineties.
Vivianni says, climate advocates have been sleeping on a law that might actually be better suited than the Clean Air Act to deal with climate change, the Toxic Substances Control Act, or TOSCA, And this.
Sort of problem is exactly the thing that task was designed for. Congress knew that there were problems out there that were multimedia, multi program that a single media act couldn't handle, and that we needed something more expansive. It was designed to take care of things that the other laws weren't properly taken care of. And if you look back at the history of climate it's quite clear then none of the other laws are taking care of this. So this is exactly what TOSCO was designed to do.
Actually, Vivianni has signed on to a petition being filed with the EPA today requesting that the agency regulate greenhouse gas emissions under TOSCA. Other petitioners include climate scientists doctor James Hansen and climate accountability expert Richard Heaty, who authored the famed Carbon Meter's report, which pinpointed the seventy companies most responsible for climate change. The petitioners are asking that the EPA acknowledged the risk posed by greenhouse gases and
commence rulemaking to deal with it. So TOASCA has historically applied to chemicals and materials only, notes that it has actually been used to regulate gases in the past as well.
OSCAR actually was used in nineteen seventy eight for just this purpose with respect to CFCs on the ground in the rule that CFCs were endangering the ozone layer and presented a serious risk with respect to global warming. CFCs are also a gas, and therefore you know there actually is strong precedent in EPA's own actions and utilizing this statute to kickstart in the effort to get rid of that potent pollutant that has very strong greenhouse gas forcing effect as well, it.
Also has the benefit of clear language that was strengthened as recently as twenty sixteen by a bipartisan effort.
They just reauthorized the the Act in twenty sixteen is a bipartisan reauthorization. So clearly this is the language that was The TOSK is supposed to deal with. Unreasonable risk is recent and it was a bipartisan It was a bipartisan passage.
Doctor James Hansen says he hopes this effort will give the agency the boost it needs to act before it's too late.
We're so far off and that just hasn't hasn't sunk yet. And you know, even though we have International Organization Framework Convention on Climate Change and the conferences of the parties, some of the stuff that they're coming out with is pretty nonsensical. The last cop the head said, we've kept within the possibility to stay under one five degrees warming. That's absolute bullshit. There's too much inertia in the energy
system and in the warming that's in the pipeline. Just because this the planet is now out of balance by an enormous amount. Doesn't sound like much a little more than a one walk per meter square, but that contains more than one degree celsius additional warming, and we're already at one point too. So yeah, we've we've passed the point of being dangerous, but we can still deal with the situation if we begin to make a fossil fuels pay their cost to society and and do that in
a way which can be made global. And the United States should be the leader. We are by far the most responsible for the situation we're in, both on an absolute basis and even more so on a per capitat basis, and we're derelict in not not fescing up to that responsibility.
And the government is not doing that now even though they claim, oh, we're going to reduce emission fifty Well that's you've got to do it in a way that can be made global, and we have to recognize our global responsibility, and we're not doing that.
But this in today's episode, we're going to delve into this novel approach to regulating greenhouse gas emissions. After the break, I'll be joined by Attorney Dan Gelbern, Executive Director and General Council of the Climate Protection and Restoration Initiative. He's representing the petitioners. He'll walk us through the argument here and why he thinks it just might work.
Stay with us.
So I'm hoping that you can start with an explanation of why TOSCA is so well suited to dealing with greenhouse gas emissions, and the decision to kind of avoid the Clean Air Act in this petition certainly well.
TASCA is well situated to serve as a foundational statute for a wide ranging decarbonization effort in the United States because of its very strong language and because we have gone so far beyond the level of safe atmospheric CO two and other greenhouse gas emissions, and so what is needed now is not merely tinkering at the edges, but restrictions to the point of prohibition, to the point of a phase out actually of greenhouse gas emission sources, at
least the major ones, because as the Administration itself has recognized, we need not only to get to net zero in terms of CO two and other GHD emissions, but we have to get to net negative, and we have to do that as soon as possible, and certainly soon after the mid century point. So what we're trying to provide is a firm legal foundation under which these types of actions can proceed and to avoid the recurrent and protract the deadlock in Congress over any the need for any
new legislation. No new legislation is needed here. Congress acted strongly in passing the Toxic Substances Control Act and in amending it just six years ago in twenty sixteen.
Right, and can you talk about how some of the improvements to TOSCA helped us strengthen this petition? What were those changes in twenty sixteen, and right, and how they come into play here.
Right, Let's first talk about the threshold determination that needs to be made by EPA when considering any specific chemical substances or mixtures. We are proceeding here under section twenty one of the Toxic Substances Control Act, the Citizens Provision, and it allows citizens to request that the agency commence a rule making in order to deal with chemical substances or mixtures that present a risk of injury to health or the environment. And we certainly have that here overwhelmingly
with respect to the climate crisis. And so the threshold determination EPA needs to make is just that do greenhouse gas emissions and their major sources, do they present a risk of injury to health or the environment or not.
When they make that determination, then that commences a rule making, and so they need to make that determination within ninety days of our filing of this petition, and then the rule making will take as long as it's necessary, and it could be several different rule makings, but Congress specified a set of requirements that need to be imposed by the agency until the point that the chemical substances and mixtures no longer present the risk of injury to health
in the environment. So that's the threshold determination, and that is specifically what we're seeking in this petition now where we lay out a little bit in the petition what we think a adequate rule would look like, But with respect to the legal impact of this petition, it is
simply asking for EPA's initial determination. We would then participate in the rule making process, as would perhaps a number of other people, to attempt to ensure the strongest and most adequate rule to address this crisis.
Right, can you walk you through how this intersects with what may or may not come out from the Supreme Court this month on West Virginia versus EPA, and what sorts of legal challenges you expect to see.
Certainly, well, First of all, a rule making under TOSCA does not mean that other authorities should not continue to be utilized, and in fact, the petition strongly recommends continuing to utilize the Clean Air Act and other authorities. That makes sense. There's a challenge, as you noted, right now before the Supreme Court in West Virginia versus Environmental Protection Agency. We're talking on June fifteen. Anticipate that decision any day
and certainly by the first few days of July. That deals specifically with section one to eleven D of the Clean Air Act. One eleven D of the Clean Air Act has nothing to do with our petition under the Toxic Substances Control Act. One eleven D of the Clean Air Act confers authority on EPA to compel emissions controls
from existing power plants. And there is a specific question as to whether the Obama EPA, in fashioning the now dormant Clean Power Plan, overstepped its bounds and read into that provision of law authority to restrict emissions outside the fence line of power plants rather than just inside the fence line of power plants. So that's a specific, fairly
narrow technical issue. Those including West Virginia, number of other conservative states, and a portion of the fossil fuel industry are urging the Supreme Court in that case to rule much more broadly to say that without express language in this statute, no federal agency can really do much to restrict economic activity at the center of industrial policy within
a sector of the economy. And so they're seeking to have a very broad prohibition against not only the EPA but other agencies attempts to restrict activity that even where it presents a significant risk to human health or the environment. But you know, it's very unclear to me whether the Supreme Court will take up that ivy. I'm not saying
it's impossible, we will see. But the language at issue in section one to eleven D, I think, while the EPA did construe it correctly, is far more vague or ambiguous than the language that we're relying on under the Toxic Substance Control Act in our petition. All that is to say, therefore, that I think that even if the Supreme Court rules very broadly in West Virgini Universus EPA, the legal basis for our petition under the Toxic Substance Control Act should be unaffected.
Right, Right, And what are some of the potential outcomes here?
Okay, Well, let me first talk about what needs to happen and why this works as doctor Hanson and other climate scientists have established, and I note doctor Hanson because he's one of the co petitioners of this petition, they have established that we, as I indicated before, have already gone well into the danger zone with respect to the atmospheric concentration of greenhouse gas gases, including carbon dioxide and CO two and methane THH four and the halogenated fluoro
carbons and so on. And what that means then, especially in light of the long atmospheric residency time of carbon dioxide, we need not only to phase out emissions, but we also need to remove a substantial portion of the so called legacy emissions, the emissions that remain in the air from past industrial and economic activity exxons, emissions from nineteen twenty or emissions deriving from the sale of their product
gasoline oil. A substantial share of that remains in the atmosphere for millennia and there continues to heat the planet unless it is unless we work to accelerate its removal. Nature will remove it, but over hundreds of thousands of years to millions of years. We can't wait that long. So then, corresponding to the problem that we confront this petition seeks a phase out of emissions, again of course
within reach of US law. This is a global problem, and we hope that the United States, and setting a good example, will strengthen international institutions that are attempting to address this problem globally. And there's good reason that that would work, both phase out emissions within reach of US law and to ensure removal of the overburden of the surf feet of atmospheric CO two that human activity is
responsible for. And so the first is accomplished by imposing restrictions and to ensure a substantial phase out of continuing or new greenhouse gas emissions, and the second would be accomplished pursuant to rule making to fossil fuel industry, which is the major source of greenhouse gas emissions in the United States and in most other nations, would be required to either remove or to pay for the removal of
a substantial share of its emissions. We recognize that it would probably untenable to compel the fossil fuel industry to remove all of its emissions from time immorial, and so in effect there's a burden sharing presumption in the petition, so industry would be responsible for fifty percent of their legacy emissions since nineteen ninety two, that is the date of the signing of the United Nations Frame of Convention on Climate Change, And it's a ratification in the United
States Senate because that's the point at which there is absolutely no reasonable doubt that the industry was on full notice that their activity was creating a untenable situation for the planet, and that everyone was obliged to do something about it, at least arguably. So, I think it's a
very reasonable, perhaps even generous compromise. In the law, where a person or a company substantially contributes to a problem that leads to the death or injury of people, the basic principle is joined several liabilities so that the entirety of the problem, that one can be held responsible for the entirety of the problem where you have substantially contributed,
and then you would seek contribution from co defendants. But here we're seeking to apportion responsibility in this way so that they would be responsible for fifty percent of their emissions only since nineteen ninety two, and then that obligation would grow with time, so that soon after mid century, the industry would be responsible to remove all of the greenhouse gas emissions that results from the use as intended
of their product burning coal, oil and gas. So those are the two sets of responsibilities that petitioners have in mind that would be the outcome of a rule making.
It's consistent with the prescription in the three major studies that were produced this last year by the Intergovernmental Panel on Climate Change and the overwhelming consensus of the relevant scientific community that we need both the phase out emissions worldwide and we need to remove a substantial share of the overburden greenhouse gas emissions that are long resident in
the atmosphere and in the ocean. So we need to essentially clean up the mess, and the major industry bears a substantial share of the burden to get that done, right, got it? Okay?
Can you walk through some of the potential outcomes here? I know you're expecting legal challenges. What might those be?
Well, we're in a retigious society. This is a industry, the fossil fuel industry, the predominant source of greenhouse gas emissions in this country, that is used to getting its way. On the other hand, there have been a series of successful regulatory programs that have limited the industry's unfettered right to treat the atmosphere as an open sewer, and it has adjusted well, and we believe that it would adjust well to this type of regulation. That is to say,
the industry would be transformed into an energy industry. Just last week, the United Nations General Secretary called for the phase out of fossil fuels worldwide. They don't have to go to court and challenges. They could participate in good faith in the rulemaking process and we come up with a reasonable pathway to get from a disaster to safety.
In the alternative, they could challenge EPA's decision. That would I think be legal insanity for them to argue that greenhouse gas emissions do not present a risk of injury to health or the environment. I think that they would
certainly lose on that. We are prepared to go to court to defend a favorable agency determination, and we will do what's necessary going from one end of this country to another to galvanize the public to ensure that the administration has the political support it needs to do what is right here, and that is to take strong action to preserve our nation from the continuing threat of devastating
climate change. It's within reach because of this petition and pointing out, you know, this strong tool that has been hiding in plain view. It's a tool that therefore should be used to address what the President has called an existential risk, an existential threat. So, yeah, there's possibility there will be opposition. There's also the possibility that there will be cooperation and we will join together to fashion a reasonable and timely rule to protect our country.
Is there some sense to that Under TOSCA, multiple other sources of greenhouse gas emissions can be regulated, you know, beyond the power plans.
To the ordering is really a question of priorities and what's the most important to be done, what's the most difficult to be done. The Toxic Substance Control Act provides significant authority to the agency to do what's necessary to protect the public and the environment from chemical substances and mixtures that are present a overwhelming threat.
And so.
There are diffuse sources, including in agriculture, concentrated animal feeding operations. There's a significant amount of methane that is produced there as well as CO two. But the agency would need to decide on priorities and on the ordering, and I anticipate that it would be seeking to control restrict the major sources of emissions first, which includes coal, oil and
gas production and also importation and use and disposal. I mean, we dispose of the greenhouse gas emissions from the burning of coal, oil, and gas right now, predominantly by just releasing it into the atmosphere, as if the atmosphere is a free and open sewer and that needs to be
phased out as rapidly as possible. But yes, the statue does provide a strong tool to the agency to address the gamut of problems arising from the production of these chemical substances, of mixtures, the greenhouse gas emissions and their major sources.
Right.
I think that we covered everything, But is there anything that we didn't talk about that you think is important for people to know or to understand about this petition.
One of the things I would like to say, however, is that this petition also serves as something of an antidote to despair that increasingly infects a public that is knowledgeable about the scope and the severity of the crisis that we confront.
That's it for this week. To read or endorse the petition and track its progress, check out cprclimate dot org. We'll bring you an update when the EPA makes a decision too before you exit out of your podcast app. If you could just take a moment to rate or review the podcast, I'd really appreciate it. It helps the show reach more listeners. Thanks for that, and thanks for listening, and we'll see you next time. Drilled is an original
production of the Critical Frequency Podcast Network. Our producer is Jules Bradley, our editor is Jude Joffee, Block mixing, sound design and scoring by Peter Duff, and I'm your host and creator, Amy Westerbald. If you would like to get bonus content, ad free episodes, and access to exclusive merchandise, please check out our Patreon at patreon dot com slash drilled. You can also sign up for our newsletter at drilled podcast dot com, and you can follow us on Twitter at we are Drilled
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