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The punch-counterpunch sparring between the Trump administration and the state of California over rollbacks of federal environmental regulations is often described as a war of words, with neither the president nor Gov. Jerry Brown giving an inch.

Some of the disputes are largely symbolic—foot-stamping gestures from Washington, D.C., designed to resonate with the president’s core supporters rather than to hold up in court.

But the latest skirmish is serious: The federal Environmental Protection Agency’s decision to unravel fuel-efficiency standards for cars and light trucks not only threatens California’s autonomy in setting its own emissions limits; it also could derail the state’s ability to reach its future greenhouse-gas-reduction goals.

“This is a politically motivated effort to weaken clean-vehicle standards with no documentation, evidence or law to back up that decision,” said Mary Nichols, chairwoman of the state Air Resources Board, in a statement. “This is not a technical assessment; it is a move to demolish the nation’s clean-car program. The EPA’s action, if implemented, will worsen people’s health with degraded air quality and undermine regulatory certainty for automakers.”

The gauntlet was thrown down by EPA Administrator Scott Pruitt, a darling of the Trump administration for his zeal in dismantling Obama-era environmental regulations. Even though Pruitt is the target of multiple investigations for alleged ethical transgressions and has found his job security in question, the effect of his current decisions may resonate far beyond his or his boss’ terms in office.

“There have been some troubling developments,” said Deborah Sivas, director of the Environmental Law Clinic at Stanford Law School. “But I think a lot of this is ultimately not going to happen.”


Putting the Brakes on Fuel Efficiency

Sivas said an attack on the fuel-efficiency standard is one of the critical fights for California, which must drastically reduce emissions from the state’s enormous transportation sector to stay on track in cutting carbon.

At issue are miles-per-gallon standards set near the end of the Obama administration. They require an average 45.4 miles per gallon by 2022 and more than 50 miles per gallon by 2025. Standards differ by vehicle type and are stricter for cars than for SUVs and light trucks.

Chet France, the former EPA senior executive who directed the office that crafted the regulations, says the fuel-standard rule is solid. France, who retired in 2012, said the benchmarks were the product of rigorous technical research and vetting with federal agencies, the California air board and car manufacturers.

The rule was reviewed again during the last days of the Obama administration and determined to be reasonable.

“The mid-term review was thorough and found that advances in auto-industry technology meant that meeting the standards was easier and cheaper than the EPA had predicted,” France said. “It concluded that the standards were attainable, and, if anything, they could have gone further.”

Pruitt called the current regulations inappropriate, saying they “set the standards too high.” He said his agency and the National Highway Traffic Safety Administration would revisit them, but he has not yet announced any proposed changes.

In explaining its rationale, the EPA is expected to dust off a decades-old analysis that suggests lighter, more fuel-efficient cars are not substantial enough to withstand crashes and thus pose a danger to drivers. Federal and state crash tests disprove that, but Sivas said she anticipates similar arguments.

The state is pushing back hard. Brown, during a recent visit to Washington, told reporters that the rollback is “not going to happen, and the attempts to do this are going to be bogged down in litigation long after we have a new president.”

On Tuesday, May 1, California filed its 32nd lawsuit against the Trump administration, asserting that in preparing to change the emission standards, the EPA is violating the Clean Air Act and failing to follow its own regulations. In announcing the suit, which 17 other states have joined, Brown conjured images of floods and wildfires ravaging the state as greenhouse gases warm the planet.

“This is real stuff,” he said. “I intend to fight this as hard as I can.”

In addition to rolling back mileage requirements, Pruitt has signaled that he may revoke California’s legal authority to establish its own emissions standards, independent of federal benchmarks. A dozen other states have adopted California’s standards; together, that coalition represents more than a third of the national auto market.

“California is not the arbiter of these issues,” Pruitt said in television interview in March. While the state may set its own limits on greenhouse-gas emissions, he said, it “shouldn’t and can’t dictate to the rest of the country.”

California’s right to request a waiver from federal clean-air laws is well established and, legal experts say, the burden would be high for the administration to convince a court that there is a compelling reason to change the longstanding policy.

Pruitt told lawmakers in Washington, D.C., last week that his agency was engaged in talks with California officials regarding proposed changes.

California Air Resources Board spokesman Stanley Young said the state has had three meetings with the EPA since December, adding: “Nothing substantive was discussed, so I wouldn’t characterize them as negotiations.”

He said the board had not seen a final proposal, and no future meetings were scheduled.

On Friday, Nichols tweeted to Pruitt: “Call me.”


Opening the Coast to Drilling

Perhaps the most consequential of the administration’s many moves to expand domestic-energy production is the Interior Department’s five-year plan to offer lease sales in federal waters off the outer continental shelf, including parcels where drilling has been banned for decades. That includes the California coast.

The plan, announced by Interior Secretary Ryan Zinke, envisions drilling in the Arctic, off the Hawaiian coast and in the Atlantic and Pacific oceans, as well as expanding existing exploration into the eastern Gulf of Mexico. The leasing is scheduled to begin in 2019 off the north coast of Alaska, and then move to the lower 48 states, the agency said.

Zinke said the leasing plans would expand the country’s energy independence. “This is the beginning of an opening up,” he said, promising that the months-long public-comment period before enactment would include all stakeholders. “The states will have a voice.”

Whose voice will be heeded may be another matter. Florida’s governor has already negotiated directly with President Donald Trump to exempt his state from leasing. Even though Brown had a conversation with administration officials relaying California’s wish to be included in a similar exemption, no announcement has been made that would prevent drilling in federal waters off the coast.

But this is one issue where the state may get its way, thanks to current market forces and a stubborn regulatory blockade.

The oil and gas industries have shown little interest in exploring off the California coast, and the State Lands Commission has resolved to make it much more difficult and expensive for companies to get crude oil to land and into pipelines.

The commission’s policy to prevent construction of onshore infrastructure does nothing to stop drilling but could limit the volume of oil shipped at a time when the low price per barrel is already discouraging new exploration.

Given those financial and logistical headaches, companies may take a pass.

“A state like California is going to put its full force and resources on the line,” said Timothy O’Connor, a California-based attorney for the Environmental Defense Fund. “There’s still an element of local and state control, and we are going to defend our values to their very core. That’s certainly one of them.”


Rolling Back Air Rules

California has notched two victories over the Trump administration’s efforts to undo a methane regulation instituted during Obama’s term.

The Waste Prevention Rule was to have gone into effect in January 2017, regulating emissions of natural gas leaking from more than 100,000 oil and gas wells on public lands across the country.

The federal Interior Department delayed enactment of the rule and was sued by California and New Mexico. The states prevailed. The agency then suspended part of the new rule and the two states sued again, winning in court once more.

The victory has significant impact in California, home to vast, aging oil fields and energy infrastructure. Methane’s potent heat-trapping capacity makes it many times more damaging to the atmosphere than carbon dioxide. The state Air Resources Board recently limited methane coming from both new and existing oil and gas sources.

Another win came in a suit the state joined after the EPA postponed implementation of yet another Obama-era rule aimed at combating smog. The “Ozone Rule” reduced allowable concentrations of ozone, a main component of smog.

Pruitt ordered the EPA to extend the deadline to comply with the new standards by at least a year. Two days after California and 15 other states filed suit, Pruitt reversed his decision.

The state also won a suit calling for federal transportation officials to monitor greenhouse-gas emissions along national highways, but the government is considering repealing the regulations.

In another pending case, California and other states are suing the EPA to identify areas of the country with the most polluted air. In April, Trump weighed in, directing the EPA to relax restrictions on state governments and businesses that have been key to cutting smog.

In a memo, the president instructed Pruitt to expedite a review of state smog-reduction plans and streamline the process for businesses to get air-quality-related permits. In addition, Trump ordered a review of other air-quality regulations related to public health to determine whether they “should be revised or rescinded.”

The agency said the directive was aimed at trimming costs and maximizing efficiency.


Dropping Protection for Water

In an effort to more precisely define which bodies of water are covered under federal law, the Obama administration adopted a rule in 2015 that effectively expanded the number of protected waterways, including springs and floodplains that appear for only part of the year.

The idea was to safeguard both water quality and water quantity, and to put an end to the time-consuming practice of determining status on a case-by-case basis. The U.S. Supreme Court had already weighed in, but the high court’s definitions of the “waters of the United States” failed to provide adequate clarification.

The Obama administration’s definition-stretching rules were strenuously opposed by developers, who said they swept up much of the undeveloped land in California, including wetlands.

Soon after Trump came into office, the EPA launched a review of the rule, and then got rid of it.

In February, California sued the EPA and the U.S. Army Corps of Engineers, which signs off on development permits in protected wetlands.

The legal case is still pending, but Sivas said the Trump administration is doing an end-run by requiring the Army Corps to run all permit requests through Washington, rather than making those determinations in regional offices.

By centralizing the decision-making, Sivas said, political appointees can circumvent scientific and legal analysis performed by field offices and determine the outcome based on other factors.

“My guess is they are going to say (to developers), ‘You don’t need a permit,’” she said.

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Environment

The normally divided Congress recently got together to take on a major overhaul of the 1976 Toxic Substances Control Act, giving the Environmental Protection Agency broad new authority to regulate chemicals in millions of products American use every day.

“When Americans go to the grocery store and hardware store, they assume products they buy have been tested and are safe; they aren’t,” Sen. Tom Udall, D-New Mexico, one of the bill’s chief authors, said in a press call. “For the first time in 40 years, we will have a working chemical safety law.”

The Frank R. Lautenberg Chemical Safety for the 21st Century Act, as the update is called, would be the biggest environmental law to pass Congress in two decades. It was approved by the House 403-12 in May, and is currently in the hands of the U.S. Senate—where it hit an unexpected snag: Despite the broad bipartisan support for the bill, Sen. Rand Paul, R-Kentucky, is blocking a vote, saying he wants time to learn about the bill. He also says that businesses are always complaining to him that they’re “regulated to death” and this bill “takes the power away from the states and creates a new federal regulatory regime.”

The bill allows the EPA to evaluate the safety of tens of thousands of older chemicals that were impossible to regulate under existing law, and strengthens the agency’s hand in reviewing new chemicals. It requires the agency to consider only safety and health—not costs—when deciding whether a chemical presents “unreasonable risk.” It charges companies up to $25 million to pay for the reviews, and provides new protections for vulnerable groups such as children, the elderly and people with compromised immune systems.

If the EPA finds that a chemical poses a risk to any group of people, it must “impose restrictions sufficient to ameliorate the risk,” says Richard Denison, lead senior scientist for the Environmental Defense Fund, who has long worked on the bill.

The bill was shepherded through Congress by Udall and Sen. David Vitter, R-Louisiana. The unlikely duo came together because the industry, public health groups and environmental groups all agreed the Toxic Substances Control Act was broken. Over 40 years, the EPA managed to use the law to test only a few hundred of the tens of thousands of chemicals in circulation. The prime example of the law’s weakness came when the EPA tried to use it to restrict asbestos. However, a court overturned the ban in 1991, eviscerating the agency’s power to regulate existing chemicals.

In the vacuum, some states, including California, Oregon and Washington, started to regulate toxic chemicals. These state efforts helped push the industry to the table to negotiate a new bill.

Sen. Barbara Boxer, D-California, initially fought against the bill, because it would have restrained states’ efforts to regulate toxic chemicals. More recently, she used her influence to narrow those restrictions. “I didn’t go on this bill; I changed it,” Boxer said at a recent press conference. “I wish I had the option to write the bill on my own. Believe me, it would have been much stronger. But I know if we want to make progress, we need to reach across the aisle.”

Under the final bill, state chemical regulations already on the books will remain in effect. Going forward, state action will be pre-empted while the EPA reviews a chemical. Once the EPA acts, its decision on whether a chemical is safe or needs to be restricted will trump any state action. States can request waivers or step in if the EPA takes more than 3 1/2 years to complete its evaluation.

States that had pushed hard for fewer restrictions on their authority to regulate chemicals seemed ready to adapt to the new bill and eager for a stronger federal regulator. Ken Zarker, who manages the Pollution Prevention and Regulatory Assistance Section of Washington State’s Department of Ecology, called the bill “workable,” even though his state and others were disappointed that it will restrict states’ regulatory ability. Washington’s Legislature earlier this year banned several flame retardants in furniture and children’s products. Zarker’s agency was tasked with studying five additional chemicals and reporting back to the Legislature on whether they, too, should be banned. Under the new toxics law, if the federal government decides to review these same chemicals, that could hamper speedier action by the state.

“The feds move too slow; it’s like trying to fight with one arm tied behind your back,” says Zarker.

Still, Zarker says only a few states have the resources to review toxic chemicals. So, having a stronger federal cop on the beat, as provided by this bill, should be good for everybody.

“At least it sets up a system; we currently don’t have one,” Zarker says. “We’ve got to start somewhere.”

But some health experts warn that although the measure is stronger than current law, it will not provide what so many people want—timely, dependable information about the safety of the chemicals they and their children encounter every day. The bill requires the EPA to name the first 10 chemicals it will evaluate within six months, and within 3 1/2 years be conducting risk evaluations of at least 20 high-priority chemicals. The bill sets a three-year deadline for the EPA to complete risk assessments of chemicals after designating them as high risk. The agency then would have two years to regulate.

The “glacial pace” of chemical reviews envisioned by the bill and the inadequate funding means that the EPA will be unable to provide consumers with the “proactive prevention that so many consumers are seeking,” said Leonardo Trasande, an associate professor of pediatrics at New York University.

“How can that be sufficient when there are thousands of highly produced chemicals without testing data?” Trasande wrote previously in a blog post. In his post and in his earlier article in the Journal of the American Medical Association, he outlined concerns that the new bill will fail to give the government adequate tools to protect vulnerable populations from the risks posed by synthetic chemicals. “A large—and growingliterature demonstrates that synthetic chemicals can disrupt the developing brains of children,” he writes.

Other public health experts are concerned about the way the EPA currently evaluates whether chemicals pose health risks. “Right now, EPA’s risk assessment process is inadequate to fully characterize the risk for effects other than cancer. That’s a huge problem,” said Tracey Woodruff, who directs the program on reproductive health and the environment at the University of California, San Francisco. “That could allow a lot of chemicals to stay on the marketplace that might pose a public health risk.”

Of ourse, how the EPA implements the new law and how much funding the agency gets to do the work will have a huge impact on whether it will live up to its sponsors’ high hopes.

This piece originally appeared in High Country News.

Published in Environment

California has been taking strong measures to deal with extreme drought. Gov. Jerry Brown recently ordered cities to cut water use, and approved new regulations to limit the flow of water in toilets, urinals and faucets.

But some economists think that there are more efficient and effective ways to mitigate drought—so they’re starting to dust off the idea of water markets.

Putting financial tools to work in the world of water management, they believe, could free up more water for use, overcoming some of the major problems associated with dry spells, and avoiding the need for some crisis measures. Proponents say markets can tell us where water is scarce and where it isn’t, and could help address one of the more nefarious aspects of water-wasting: how cheap water seems compared to how important it is.

“Drought is a train moving at us at three miles per hour,” Jennifer Pitt, director of the Colorado River Program for the Environmental Defense Fund, says, “and if we don’t get off the track, it’s our own damn fault.”

Rather than complicated laws, policies and agreements, a market system could allow users to sell or buy rights from year to year, or to conserve water use without losing water rights. Such instruments, for example, would help a broccoli farmer lease his water rights to an almond farmer, earning money on a fallow field for a year while preventing a catastrophe in his neighbor’s orchard. Water law today often prohibits farmers from doing that.

While California’s drought has dominated headlines, the Colorado River Basin and many other watersheds are facing a longer-term problem: As the climate changes, dry areas of the planet are likely to get drier, so droughts will probably last even longer.

“Markets are going to be critical to the solution to drought,” Pitt says. That doesn’t mean privatizing water fully, but recognizing water’s relationship to the land it runs through—and therefore to property.

Currently, most water is bound to property rights, under a series of doctrines that make it hard to move around and hard to conserve. A use-it-or-lose-it aspect underpins many water policies. They may be mere slips of paper, but water rights can be as cumbersome to move as boulders. That lack of flexibility in Western water policy and law creates “quite a bit of tension and risk,” says Peter Culp, a water lawyer at Squire Patton Boggs, in Phoenix.

In a recent discussion paper for the Brookings Institution’s Hamilton Project, “Shopping for Water: How the Market Can Mitigate Water Shortages in the American West,” Culp and co-authors Robert Glennon, at the University of Arizona, and Gary Libecap, at the University of California at Santa Barbara, give five proposals for putting water markets in place: “Reform legal rules that discourage water trading to enable short-term water transfers; create basic market institutions to facilitate trading of water; use risk mitigation strategies to enhance system reliability; protect groundwater resources; and continue to expand federal leadership.”

That means, for example, that states could encourage water users to free up water on a short-term basis. (The broccoli farmer who gives his water for a year for the sake of his neighbor’s almonds is an example of this.) They also suggest finding ways to link water rights to consumption, rather than diversion, and to ensure that junior water users are not harmed in times of drought. They advocate for eliminating the “beneficial use doctrine,” which demands that all water must be used for a beneficial purpose, such as agricultural irrigation or a city utility, or see its right forfeited. That idea, the authors say, hampers markets and discourages efficient use of water.

Water markets certainly have detractors and caveats. There’s a lot of reluctance to move out of the old system, which has been in place for years and is surrounded by complicated, hard-to-untangle laws and traditions.

Such rights could also be traded without regard to the rural communities that rely on them, says Patricia Mulroy, the former water czar for Las Vegas and currently a fellow at Brookings.

“Once the market forces take hold, the only thing people will talk about is the money,” she says. “And only the economists and the accountants will move their lips.”

This story originally appeared in High Country News.

Published in Environment