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Notes from Underground Series: The Deregulation Crusade: A Pattern of Ignoring Warnings

Adam Arnold, April 24, 2018

Part 2: Coal, Fracking, Pruitt, and NEPA

"We know that it is impossible for humans to flourish without clean air, land, and water. We also know that a strong, market-driven economy is essential to protecting these resources."

President Donald Trump, April 22, 2018

For Earth Day 2018, President Trump declared in effect that environmental regulation is unnecessary, because the market will protect the environment. In fact, environmental regulations are put in place precisely because extractive industries and other businesses generally have no obligation and take no responsibility to protect the environment or to operate sustainably, and gladly externalize costs of harm to the environment and public health. The President’s statement indicates that his understanding of regulation has been fed to him by fossil fuel industry lobbyists or that he is an extremely cynical and disingenuous man.

Despair and Hope

Over 30,000 people in the US are fatally shot every year. On March 24, millions of people in dozens of US cities, led by student survivors of the mass shooting at a Parkland, Florida high school, marched against gun violence.

But what does this have to do with fossil fuels?

There is no discounting the important role the Dickey Amendment has played in the current US gun debate. This rider to the 1996 omnibus spending bill prohibited funding of research that “may be used to advocate or promote gun control.” A recent “clarification” of the language does nothing to disentangle its inane phrasing. How does one know if one’s research will result in advocacy for gun control before conducting the research? The amendment was passed as a response to supposed bias in federal research, but what can be more biased than dismissing the need for gun control before adequately researching the issue? (New developments send mixed messages, with some new funding for research now coming from the private health insurance industry. Do we rely on private interests working to reduce their overhead to resolve what is ultimately a problem of public policy?)

So the argument about how to respond to gun violence rages on, in part because of a dearth of reliable, national data, as might be compiled by the National Institute of Health or the Centers for Disease Control – federal agencies that routinely study threats to public health, from viruses to automobile accidents. Will more research necessarily end the debate or solve the problem? No. But any perceived prohibition against such research clearly does nothing for public health, and assures that the US population becomes more and more polarized. We are left with a battle of memes, and a false equivalence between one group with a demonstrable concern and another with no interest in finding a solution.

Is the connection between the Dickey Amendment and the fossil fuel industry in the Trump era becoming clearer now?


Mass Distraction: finding a moment to focus on the topic at hand

Good science – which requires accurate measurement, detailed analysis, and objective peer review – is hard to find these days. For example, last November’s Keystone Pipeline leak in South Dakota turned out to have released twice as much oil (nearly 10,000 barrels, as opposed to the 5,000 barrels initially reported) into the environment as originally estimated, again confirming that spill measurements tend to underestimate the real environmental devastation caused by the “Dinosaur Industrial Complex.” Without accurate measurement, how can we expect a detailed analysis? Could it be that a detailed analysis is just what the American Petroleum Institute, apparently like the National Rifle Association, is afraid of?

More recently, in mid-March, a Marathon Petroleum Corp. pipeline in Indiana spewed 42,000 gallons of diesel fuel into the ground before the leak was detected, at which point the pipeline was “immediately” shut off. Immediately, after 42,000 gallons escaped into the environment. If that’s immediate, the public must be grateful that Marathon values its product too much to drag its feet.

That kind of response will not protect public health and safety, nor will the attempts to gloss over the severity of these constant leaks. But these are unsurprising consequences of an increasingly weak regulatory system that approves fossil fuel infrastructure projects like many people binge-watch trendy shows on Netflix, only without the remorse.

The purported and predetermined subject of this post was to be coal and fracking, concluding the “four legs of a wobbly table” metaphor in which the other two legs are represented by pipelines and offshore drilling. (See previous post here.) But it is hard to stay on topic when discussing the leaky dyke of environmental degradation, or the doings of the current administration. A new leak, spill, or explosion occurs every four to five minutes – invariably followed by some new scandal, controversy, or search and seizure at a law office. A cynic might even suggest that the latter are parts of some devious strategy to distract the public from the former – i.e. the unavoidable consequences of capricious deregulation.

Undoing regulations is one thing in which the Trump Administration consistently takes pride. Touting a 22-to-1 ratio of regulations destroyed, delayed, or thwarted for each new one adopted (a number with little basis in reality), the administration will increasingly share numbers to demonstrate how much money is being made or saved by abolishing these odious protections. (Without even fully considering the health, safety, and productivity costs associated with deregulation, Politifact found plenty to dispute in the administration’s analysis.)

The numbers presented as “proof” of the value of deregulation are and will continue to be inaccurate, disregarding many of the real costs that will have to be paid by someone – i.e. the public – somewhere down the line. For example, one of the abolished rules called for agencies to incorporate the social cost of carbon in their cost evaluations. Now the cost to the planet from greenhouse gas emissions will not feature in the assessment of deregulatory “savings.” (Luckily this, like many of the administration’s other anti-environmental efforts, will face significant legal scrutiny.)

Other inconvenient and burdensome regulations that have fallen on the Trump chopping block include assaults on the Clean Air Act (because not polluting the air is burdensome on multi-billion-dollar industries – see here and here), and the Clean Water Act (such as EPA head Scott Pruitt now making determinations previously made by regional heads – but more on Pruitt’s shortcomings later).

As for coal and fracking, several deregulatory actions under the Trump Administration directly relate to those industries (among many others, great and small). Here is a brief and incomplete overview:

The freeze on leasing public land to coal companies has been lifted (some details in a New York Times piece here.) And no, the coal companies will not leave the public land as they found it; they aren’t even required to try; it would be “unduly burdensome” to require a coalmining company to be able to pay for cleanup of pollutants left behind at a mining site (but apparently the public can afford to do so). But it’s okay, because those mining companies can just dump those pollutants into the local waterways, thanks to another poorly-conceived deregulatory move (see here and here).

If all this is said to be for the benefit of coal miners, it is curious that the administration is working to eliminate requirements that mining companies limit the toxic coal dust that their employees inhale. (Congress has granted more money for handling black lung cases, though, even if not every state got the memo.)

At least the mining companies – like other fossil fuel companies exploiting what they can find on leased public lands – will have to pay a fair share of royalties for that land use, right? And some of that money can be used to pay for cleanup? No, calculating those royalties would cause “confusion and uncertainty” for those cash-strapped industries that evidently cannot afford accountants. (Confusion and uncertainty are indeed parts of the overall equation, however, as the administration’s policies are confusing and uncertain, as they are not based on scientific reasoning – they destabilize markets.)

As for hydraulic fracturing, a fracking industry insider was under consideration for the President’s Council on Environmental Quality. Meanwhile, it is already easier to frack on public lands and the lands of Native Americans, because water pollution rules proposed by the Obama Administration, which would have required some scrutiny of the risks posed by fracking chemicals, are being rescinded. The rule requiring oil and gas companies to report methane emissions has been revoked to avoid the inconvenience of supplying information on their practices for the study of the impacts of methane emissions.

These indefensible decisions, too, are being questioned by experts and in court, as the dangers posed by fracking are becoming harder – but clearly not impossible – for the administration to ignore.

Law, reason, and public sentiment are all on the side of protecting these protections. But the longer it takes to litigate these issues or for a new administration to roll back the rollbacks, the greater the likelihood of irreparable harm to the environment and the people who live in it.

The biggest threat, then, is that the administration is trying to make it easier to do more harm before reason can win the day. By limiting the ability of the public to respond and speeding up the already well-greased process of approving fossil-fuel infrastructure projects, the administration is stacking the deck in favor of outdated or dangerous industries like those of coal and fracking – picking winners and losers, just as many accused the Obama Administration of doing by attempting to smooth the transition to renewable energy.

How is the Trump Administration enabling more harm to human health and the environment? By attacking the National Environmental Protection Act’s (NEPA) requirements for environmental assessment and public participation.


Stopping it where it starts: Killing NEPA

The advent of NEPA nearly fifty years ago was a tremendous step forward for public involvement in government. It is by no means a perfect piece of legislation; it does not, in itself, protect the environment. But it does force most government projects to face some public scrutiny, whereby complaints and suggestions can be heard and taken into consideration. It forces agencies to think before green-lighting every project that comes before them.

The compromise of NEPA – that environmental impacts must be considered, but may be ignored – has led to countless positive outcomes for the environment and for projects themselves (some examples here), even if it has not stopped or altered every project that threatens the environment (see pipelines, everywhere you look). NEPA, through its Environmental Assessments and Environmental Impact Statements, created a gatekeeper where before there had mostly been public outcry after the fact, when health and environmental impacts are already being felt. It is a fallible gatekeeper, limited by numerous exemptions, but it has been a consequential piece of the democratic process.

Despite NEPA’s toothlessness, it is understandably loathed by an administration that celebrates putting the public at risk through eliminating environmental regulations, just as it loathes inconvenient science that can highlight a risk before it happens. That environmental impact must even be considered threatens the profit-first, human-health-second worldview. That NEPA requires a space for public comment is the ultimate outrage to oligarchs. No wonder the Trump Administration is attempting to whittle away at NEPA’s most important provisions.

Executive Order 13807, issued by the administration in August 2017, calls for a “streamlining” of the review process for infrastructure projects such as oil and natural gas pipelines. Currently, the process often lasts over two years, and E.O. 13807 calls for the process to be kept under two years. Pipelines are already approved at an outrageous rate of over 99%, but the administration is concerned about “efficiency.” Given the rate at which pipelines leak, it might be more “efficient” to scrutinize these projects more intensely, consider viable alternatives, measure the expense of cleanup and damages to human health and public and private property, and perform a cost-benefit analysis.

But instead it’s full coal, gas, and steam ahead. And once a project is approved and underway, the chances of stopping it are small. Maximizing the use of that ill-advised mine, well, or pipeline will mean stretching our fossil fuel dependence – and prolonging and increasing the consequent environmental harm – for decades.

The question raised by E.O. 13807 isn’t solely about pipelines; it is one of feasibility. How can the administration both expect greater efficiency and demand smaller government? Other than automation (a frighteningly logical next step, given the Federal Energy Regulatory Commission’s reputation for rubber-stamping fossil fuel projects), there is only one way to speed things up with fewer people doing the work: cut corners.

Since good science takes time, it will have to be avoided – or so it seems under the Trump Administration. The next logical item on the chopping block, then, appears to be public involvement. Instead of waiting for members of the public to complain about how any given project might damage their property, poison their land and water, and prevent advancements in clean energy solutions, FERC can read the documentation compiled by the company pushing the project and act accordingly.

Protection of health and the environment requires research and analysis, input from stakeholders with varying perspectives, and time, without which good research cannot be performed and the views of many stakeholders will not be heard. Rushing ahead with a hamstrung process is worse than working without a net; it is deliberately removing an existing net and then claiming the fall will be harmless. The deregulators are the ones collecting the admission fee to this circus. When the time comes to clean up the mess, will they have left the big top?


Harmful deregulation is the offspring of corruption

By its proponents, deregulation is made to sound necessary. Outdated or absurd laws and regulations are called up as proxies for all laws and regulations to be burned like straw men, justifying rolling back rules that are designed to protect our health and our environment. Facts are rejected, diluted, or discounted under the weight of bogus science and self-serving obstinacy. Or they are snuffed out before they can be verified by defunding research, or by blindly accepting biased arguments from industry in place of peer-reviewed studies that might suggest that the safest option does not generate adequate capital. Dissenting views are ignored or silenced

If any of this sounds like corruption, it should. A substantial part of GAP’s mission – as contained in laws protecting whistleblowers – is to oppose government waste, fraud, and abuse, and threats to public health and safety. Regulation (or deregulation) that favors those who contribute money and gifts to officials over the wellbeing of the public fits several of these categories. Unnecessary expenses, misuse of authority, cover-ups of scientific data and personal stakes all are earmarks of a compromised, undemocratic government. With each new scandal that comes to light, it becomes more evident that members of the current administration are not interested in transparency, accountability, or serving the public, but are enthusiastic about doing the bidding of destructive and dishonest industries for their own benefit.

Deregulation is the enemy of transparency and accountability, and it should be no surprise that proponents of deregulation sometimes have other ethical failings – such as current EPA head Scott Pruitt, whose past is a smarmy unabashed love affair with the fossil fuel industry. His more recent displays of dubious ethical standards include renting a DC residence below cost from an owner with fossil fuel ties (as a lobbyist for a company that subsequently received favorable treatment from Pruitt’s EPA), meeting behind the scenes with coal executives, and abusing discretionary powers to reward favored aides with well-paid positions when the White House refused to grant them substantial pay raises in their previous positions.

Then there are Pruitt's numerous suspect expenditures, ranging from excessive travel and security budgets to substantial purchases of office furniture. Several EPA personnel have already faced apparent retaliation for bringing these issues to light – incidents to which GAP is paying close attention.

Most egregious of Pruitt’s expenses is a sound- and surveillance-proof cubbyhole in his EPA office, like something out of an old “Get Smart” episode. The Government Accountability Office recently determined that this expense was excessive to the point of illegality, although its concern was with the cost and the procedure for paying for the $43,000 renovation, and not with the disturbing subtext of an anti-environment EPA administrator requiring total secrecy for his communications.

Can there be a more cartoonish depiction of opaque governance than an agency head chatting with industry insiders and other chums under a Plexiglas bubble? No previous EPA administrator has had a need for such secrecy; the ability to discuss classified information has not proven problematic in the past. With a mounting list of ethical questions surrounding him, Mr. Pruitt has made it very easy to assume the worst.

Scott Pruitt’s excesses as EPA head have put him under scrutiny in a way that his dismantling of his agency and disregard for its mission have not, but all these shortcomings are of a kind: they describe a public official with no concern for accountability and no interest in transparency.


Undoing the undoing

If there is good news – other than that more members of this administration are being exposed for their utter lack of scruples – it is that many of the deregulatory moves made by EPA under Pruitt are, like the legs of our energy-economy table, unstable. Most of those not already in the courts will be eventually. Perhaps they could be contained under a single suit that addresses the utter failure of Pruitt’s EPA to fulfill the agency’s mandate.

When agency action defies its mandate and lacks rational, scientific justification, courts – even those packed with sympathetic judges and justices – will be hard-pressed to justify undoing policies that were hammered out based on the best available science.

But how much damage will be done before the undoing can be undone?

For the coal and fracking industries, harm to workers, the public, and the environment will continue until solid regulation can be put in place, or until they succumb to the economic pressure of fighting against sustainable industries. For NEPA, maybe exposing its weakness in the face of ever worse environmental conditions will lead to reforms that limit exemptions and give much-needed teeth to Environmental Impact Statements.

For Pruitt and the rest of this anti-health, anti-environment, anti-science administration, the undoing is an ongoing process as their misdeeds and abuses are exposed, and, with luck, their contempt for the rule of law puts them out of work.

Defining whistleblowers as “leakers” has allowed the administration, with marginal success, to dismiss internally-generated claims of chaos and corruption. Ignoring or silencing scientists has allowed the administration to pursue its predetermined goals with blinders in a darkroom – horse travel and analog photography being appropriately archaic metaphors for the dinosaur cult. Limiting public involvement in infrastructure projects further simplifies achieving the administration’s goal of disregarding opinions with which it disagrees – even when those opinions are based on substantial and demonstrable concerns, and the administration’s are based on profit, profit, self-interest, and profit.

The lack of accountability and transparency in this administration is both literally and figuratively breathtaking. When the canaries in this coalmine start dying, the administration and its fossil fuel compadres, like a shady pet-shop owner, will nail them to their perches and claim they’re “just resting.”

But hope remains. Laws like NEPA are tough to eradicate, especially by an ethically challenged and easily distracted administration. The public is engaged, even as efforts are made to shut it out. And maybe, like the young people leading the charge for reform in the gun laws – and those engaged in litigating the threat of climate change – the next generation will be able to repair the damage done by their forebears.

Let’s just hope there’s something left to repair.