This post was originally published on Legal Planet. Reprinted with permission.
Lead can cause neurological damage to young children and developing fetuses. The only really safe level is zero. Because poor children are the most likely to be exposed to this hazard, this is also a major environmental justice issue.
The Trump EPA took the position that it could set a hazard level higher than zero because of the cost of reaching a lower threshold. In a split decision, the Ninth Circuit reversed. The statutory issues are complicated, and a dissent raised some reasonable arguments. Ultimately, though, it's hard to believe Congress wanted EPA to misrepresent that a certain level of lead is safe for children when it really isn't.
The case involved several types of regulations, but the most important dealt with levels of lead dust. The main way children are exposed to lead is by contacting dust from lead paint in older buildings. The key language that the majority relies on requires EPA to set the hazard level to include "any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, lead contaminated paint… that would result in adverse human health effects as established by the Administrator under this chapter."
That language certainly seems to support the majority's view, which is that "lead-based paint hazard" means a level that's unsafe, not one that can't be feasibly reduced. The fact that it's not feasible to eliminate a hazard doesn't mean that the hazard itself has vanished. There was no feasible way of making it safe for British pilots to fight in the Battle of Britain, where their death rate was horrific. Still, it would be weird to say that they were engaged in a nonhazardous activity simply because there was no escaping the risk.
The dissent relied primarily on the final clause ("established by the Administrator. . ."). In the dissenter's view, to show "adverse health effects" only counts if EPA decides on balance that those effects can be addressed feasibly. The dissent then invokes other language in the statute to show that EPA is generally supposed to act on the basis of feasibility. That's not an absurd argument.
Both views of the statute have problems. The dissenter's view requires assuming that Congress meant EPA to designate low levels of lead as nonhazardous even knowing that they were in fact unsafe for children. If it wants to, Congress can define hazardous as "any level that EPA determines should be reduced." Still, you would think that Congress would have made it clearer if it meant to adopt such a counterintuitive definition of the word hazardous.
Behind this disagreement about the definition, there was a deeper dispute about the function that setting hazardous levels plays in the statute. Under the dissenter's view, the hazard level and the remedial regulations aren't separable. EPA issues the safe level based on what remedial regulations are going to be feasible to reduce risk and then issues those regulations. Under the majority's view, there's a two-step process: first EPA sets the safe level based on science, and then it considers feasibility in issuing remedial regulations.
It seems to me that here, too, the majority has the better argument. If the dissenter is right about the way the statute is supposed to operate, it would have been much simpler for Congress to have skipped the process of setting a hazard level. Instead, it could simply have said, "EPA shall issue regulations reducing lead risk, taking into account the risk of harm and the cost of reducing lead levels." Or instead of saying EPA was supposed to determine the hazardous level of exposure, Congress could have said EPA should determine the "acceptable" level of exposure.
This was another Ninth Circuit case where the government had dragged its feet for years about taking action and had taken the minimum action possible only after a court said the delay was unacceptable. That history may well have influenced the majority. I can understand the government's reluctance to admit that it was going to leave lead at an unsafe level for cost reasons. Still, to my mind, if achieving safety isn't feasible, it's better for the government to say so, rather than issuing a decision that purports to determine safety but actually does something much different.
Top image by Ich, used under Creative Commons license CC BY-SA 4.0.
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Daniel Farber | May 24, 2021
Lead can cause neurological damage to young children and developing fetuses. The only really safe level is zero. Because poor children are the most likely to be exposed to this hazard, this is also a major environmental justice issue. The Trump EPA took the position that it could set a hazard level higher than zero because of the cost of reaching a lower threshold. In a split decision, the Ninth Circuit reversed. The statutory issues are complicated, and a dissent raised some reasonable arguments. Ultimately, though, it's hard to believe Congress wanted EPA to misrepresent that a certain level of lead is safe for children when it really isn't.
Daniel Farber | May 21, 2021
In its closing days, the Trump administration issued a rule designed to tilt EPA's cost-benefit analysis of air pollution regulations in favor of industry. Recently, the agency rescinded the rule. The rescission was no surprise, given that the criticisms of the Trump rule by economists as well as environmentalists. EPA's explanation for the rescission was illuminating, however. It sheds some important light on how the agency views the role of cost-benefit analysis in its decisions.
Brian Gumm | May 20, 2021
In the latest episode of Connect the Dots Season 5, host Rob Verchick and his guests discuss the fiscal complexities and possibilities of a just, equitable transition to clean, renewable energy. When it comes to innovation and clean energy, there’s a wide range of players building new technology and sourcing terrains to scale renewables as wide as the great unknown. Funding for those projects comes from a host of financiers, from banks to private equity firms to, perhaps, everyday consumers. The drive behind financing the energy transition results from a dedicated consortium of political agendas, business prerogatives, and consumer demand.
Katlyn Schmitt | May 13, 2021
Dirty, polluted stormwater that runs off of industrial sites when it rains is a major cause of pollution to Maryland’s streams and rivers, and ultimately to the Chesapeake Bay. Maryland is home to thousands of such industrial sites, all of which are required by law to obtain a stormwater discharge permit from the Maryland Department of the Environment (MDE) to prevent pollution and protect public and environmental health. Unfortunately, many of these sites do not have a permit. For example, our research in one small area of Anne Arundel County found that only four out of 12 industrial sites possessed a current permit. Of the industrial sites that hold a permit, many are not in compliance with the permit requirements. Between 2017 and 2020, MDE conducted just under 2,000 inspections of permitted sites throughout Maryland and found that more than two-thirds (68%) were violating the terms of their permits. These industrial sites are commonly clustered in urban areas, creating pollution hot spots of runoff that can include heavy metals and other toxins. Such polluted waters threaten the health of those who live nearby, who are more likely to be low income and populated by people of color.
Daniel Farber | May 7, 2021
Chlorpyrifos is one of the most widely used pesticides in America, although it has been banned in the European Union. Last week, the Ninth Circuit took the extraordinary step of ordering the U.S. Environmental Protection Agency (EPA) point-blank to ban or reduce traces of chlorpyrifos in food. A dissenter accused the majority of misreading the statute in question and abusing its discretion by limiting EPA's options so drastically and giving it only 60 days to act. Warning: The majority and dissenting opinions cover 116 pages, so I'll necessarily be leaving out a lot of details and nuances.
Brian Gumm | May 6, 2021
Companies using fossil fuels like oil, natural gas, and coal are facing heavy pressure to reduce their carbon footprint. If they don’t, they could get hit with financial penalties or be completely shut down. In response, these corporations have come up with a treatment of sorts -- it’s called carbon capture and sequestration, or CCS. The idea is that the industry can continue operating as it always has, but as a caveat, it will install a system to strip carbon from emissions. The carbon will be funneled through pipelines deep into the ground, where it will be buried forever. As a result, plants can keep running, businesses rally on as usual, there’s less pollution in the air, everyone wins. Right? Not exactly. As Connect the Dots host Rob Verchick and his guests discuss in this episode, CCS is not nearly comprehensive enough to reduce emissions at a level and rate necessary to make a difference.
James Goodwin | May 4, 2021
By the time the environmental justice movement began taking shape in the 1980s, communities of color had already been suffering from the disproportionate burdens of pollution for decades. Since then, evidence of racially discriminatory patterns in the distribution of environmental harms has only continued to mount.
Karen Sokol | May 4, 2021
A week after taking office, President Joe Biden issued an executive order “on tackling the climate crisis” that aims to face the challenge comprehensively and equitably. Biden has quickly appointed and seen confirmed a team of leaders who are committed to all aspects of this mission. Our country is finally on the cusp of meaningful climate action. The climate action train is so popular that even fossil fuel companies, which have historically sought to derail it, are now saying they’re on board. We should, of course, welcome all sincere collaborators; the fossil fuel industry is not among them.
David Flores | May 3, 2021
As Maryland heads into the final stretch of a collective effort to clean up the Chesapeake Bay, it has inexplicably passed over its best opportunity in years to modernize regulation of industrial stormwater -- rain and snow that collects toxic pollution as it runs off factories, warehouses, scrap metal dealers, and other industrial sites. Earlier this year, Maryland released a proposed revision of its general water pollution permit, which limits the type and amount of pollutants that facilities can discharge into public waters and sets monitoring and reporting requirements to protect public and environmental health. Unfortunately, the state missed an important opportunity to bring stormwater regulation from the last century into the present -- but it’s not too late to change course.