Time to Regulate Odors
Author
Adam Babich - Tulane University
Tulane University
Current Issue
Issue
2
Cancer Alley

Why regulate odors? Two reasons: First, to improve public welfare. Odors from air pollution may be an occasional, minor nuisance in most neighborhoods, but not everywhere. For people living adjacent to chemical plants, refineries, and landfills, obnoxious chemical odors can be a daily occurrence that impairs their quality of life. Second, to protect public health. Reducing odors means reducing chemical emissions that cause odors. Many of those chemicals also pose health hazards. Yes, emissions of dangerous chemicals are already subject to Clean Air Act regulatory programs. But those programs are rife with gaps and limitations. The result? Kimberly A. Terrell summarized a 2022 peer-reviewed study that she published with Gianna St Julien as follows: “Numbers of cancer cases are abnormally high among Louisiana’s heavily polluted, predominantly Black neighborhoods,” many of them located in a heavily industrialized corridor known as “cancer alley.”

Can EPA legally regulate odors? Yes! In fact, both EPA and Congress anticipated that possibility. In its 1971 notice that listed nitrogen oxides as a “criteria pollutant” for which the agency would set National Ambient Air Quality Standards, the agency stated that “evaluation of other air pollutants, including fluorides, polycyclic organic matter, and odorous substances, is being conducted, and the list will be revised as the administrator [i.e., EPA] deems appropriate.” In the 1976 case affirming a district court order that required EPA to list lead for regulation, NRDC v. Train, the Second Circuit quoted legislative history that “Congress expects criteria to be issued for nitrogen oxides, fluorides, lead, polynuclear organic matter, and odors, though others may be necessary.” Congress ordered EPA in the 1977 amendments to the Clean Air Act to evaluate “whether air quality criteria or [NAAQS] should be published under the Clean Air Act for odors.” EPA published its response in 1980, concluding that “federal regulatory involvement in odor control does not appear to be warranted.” That conclusion, however, is more than four decades old. If it was ever defensible, it is out-of-date.

The CAA provides ample authority to regulate odors. The heart of the law is the “criteria pollutant” program. That program is built around two expansive commands to the agency in Clean Air Act Section 109: one, “to protect the public health” with “an adequate margin of safety,” and two, “to protect the public welfare from any known or anticipated adverse effects.” To implement those commands EPA sets “primary” NAAQS, which are “requisite to protect the public health,” and “secondary” NAAQS, “requisite to protect the public welfare.” The act’s definitional section clarifies that welfare includes “effects on economic values and on personal comfort and well-being.” The criteria pollutant program is triggered under Section 108 of the act when EPA adds to a list of pollutants that, in the agency’s judgment, “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare” and which are present “in the ambient air” due to emissions from “numerous or diverse mobile or stationary sources.”

Listing of a criteria pollutant triggers a series of deadlines: EPA has 12 months after the listing to issue a criteria document that “accurately reflect[s] the latest scientific knowledge” with respect to “the kind and extent of . . . effects on public health or welfare.” Simultaneously, EPA must propose primary and secondary NAAQS “for any such pollutant.” The agency then has 90 days to issue final standards. After promulgation of NAAQS, Section 110 of the act provides that states “shall” submit for EPA approval plans for “implementation, maintenance, and enforcement” of those standards within three years (a deadline that EPA can extend for 18 months for plans to attain welfare standards). At least since the 1992 Supreme Court opinion in New York v. United States, however, it has been clear that Congress “may not compel the states to enact or administer a federal regulatory program.” Thus, Congress’s provision for state implementation plans is best read as a strong suggestion. But if a state fails to submit an approvable plan, EPA must step in and issue a federal implementation plan. Under Section 172 of the act, the plan should provide for attainment of a welfare standard “as expeditiously as practicable” after EPA designates an area as nonattainment for the standard.

Why is ambient regulation of odors necessary? First, of course, obnoxious odors inarguably impact welfare. In a 2006 Federal Register proposal in the context of landfill gases, EPA recognized that odor problems create “potential for local property devaluation and poorer quality of life for local residents.” For an agency charged with safeguarding welfare “from any known or anticipated adverse effects,” no more should be required. But an important additional consideration is that protection from odors would come with a co-benefit. It would enhance protection of public health. As a practical matter, when changes are made to polluting facilities to reduce an impact from pollution, those changes generally end up reducing other impacts as well. Those reductions are termed co-benefits (or collateral benefits or ancillary benefits).

One might ask, then, why additional health protections are necessary when EPA has already promulgated primary NAAQS “requisite to protect the public health.” At times, the federal government has seemed to equate compliance with primary standards with sufficient protection of public health. During the Clinton administration, EPA’s Office of Civil Rights issued its notorious Select Steel opinion, which rejected a petition for enforcement of the agency’s environmental justice regulations. EPA’s theory in Select Steel was that without a violation of an EPA health-protection standard, “there is no affected population which suffers ‘adverse’ impacts within the meaning of Title VI” of the Civil Rights Act. How can a minority community complain of a disproportionate impact when there is no impact?

Similarly, during the Trump administration, the agency took the position that a cost-benefit analysis of a hazardous air pollutant regulation would give lesser weight to co-benefits from reductions of criteria pollutants, such as particulate matter and ozone precursors. EPA explained that particulate matter and ozone “are already addressed by the numerous statutory provisions governing criteria pollutants.” The Biden administration, however, reversed that position. EPA stated that reducing pollutant concentrations “below the levels of the NAAQS is reasonable and well-supported by scientific evidence.” This is because, for many pollutants, there is no bright-line threshold below which exposures pose no risk of injury.

Congress has recognized that the criteria program’s health-protection standards, although supposedly set with an “adequate margin of safety,” do not protect against all health impacts. Congress made that recognition explicit in the 1977 Clean Air Act Amendments—when adding the Prevention of Significant Deterioration program to keep clean air from deteriorating to the level of the primary NAAQS. In Section 160 of the act, Congress explained that one of its goals was “to protect public health and welfare . . . notwithstanding attainment and maintenance” of all NAAQS. Senator Edmund Muskie (the father of the Clean Air Act) explained in June 1977, “Even at the national primary standard level, which is the health standard, there are health effects that are not protected against.” A 1977 House report acknowledged, “The idea that the national primary standards are adequate to protect the health of the public has been belied.” Further, “The inadequacies of the standards are substantial both with regard to the pollutants which are regulated and with respect to [EPA’s] failure to regulate others.”

To date, EPA has used the criteria program to set standards for only six pollutants—carbon monoxide, nitrogen dioxide, ground-level ozone, lead, particulate matter, and sulfur dioxide. These six pollutants, however, cover a lot of territory. Ground-level ozone, for example, results from an atmospheric chemical reaction involving sunlight, oxygen, volatile organic compounds (VOCs) and oxides of nitrogen (known as NOx). Implementing the ozone standard, therefore, requires EPA and states to regulate VOCs and NOx as ozone precursors. These include a broad collection of chemicals. Another criteria pollutant, particulate matter, consists of small respirable particles which can include a variety of potentially dangerous chemicals. Criteria-program regulations, however, are not designed to abate all risks associated with the specific chemicals that fit within the categories of VOCs, NOx, or particulate matter. For example, benzene is a VOC and also a carcinogen. The criteria-pollutant program, however, only regulates benzene in its role as ozone precursor. The fact that VOC reductions may also reduce cancer risks from benzene is a co-benefit, but EPA did not calibrate its criteria-pollutant regulations for that purpose.

Similarly, the CAA’s Hazardous Air Pollutant program leaves gaps in the protection of public health. The basic hazardous air pollution standard—known as Maximum Achievable Control Technology—is an emission standard, not an ambient standard. Thus, if a neighborhood is surrounded by three major sources of hazardous air pollution, lawful emissions may be up to three times the standard. A limited exception is the MACT standard for oil refineries, which includes a “work practice standard” that generally requires refinery owners to “monitor benzene concentrations around the fenceline or perimeter of the refinery” and “maintain fenceline benzene concentrations at or below the concentration action level” of 9 micrograms per cubic meter. (The quotes are from a 2020 EPA Federal Register notice.)

For new major sources of hazardous air pollutants (i.e., those that emit at least “10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants”), EPA must set a minimum “MACT floor” that is at least as stringent as “the emission control that is achieved in practice by the best controlled similar source, as determined by” the agency. For existing major sources, EPA sets the MACT floor at “the average emission limitation achieved by the best performing 12 percent of the existing sources (for which [EPA] has emissions information).” The D.C. Circuit explained in its 2004 Mossville Environmental Action Now v. EPA opinion that “EPA need not base its standards on actual data, but could lawfully rely on estimates drawn from the regulatory data as to what the best performing 12 percent were achieving.” Further, EPA may select a standard that sources among that best performing 12 percent can meet “every day and under all operating conditions.” EPA does, however, have discretion to go beyond the MACT floors and set more stringent standards after considering “the cost of achieving such emission reduction[s], and any non-air quality health and environmental impacts and energy requirements.” For sources that do not qualify as “major” (known as “area sources”), EPA may promulgate more discretionary standards based on “generally available control technologies.”

The act’s hazardous air program also requires EPA—if necessary “to provide an ample margin of safety”—to issue an additional promulgation eight years after finalizing a MACT standard. For carcinogens, EPA has defined “ample margin of safety” to allow a lifetime excess cancer risk of between one-in-one million and one-in-ten thousand. Neither end of this “acceptable risk” range is firmly rooted in policy, but a one-in-one million risk is roughly consistent with the traditional concept of a de minimis (or trivial) risk. If there are 332 million people in the United States, however—and assuming (a big assumption) that each person faces the maximum allowable risk—we would expect any particular carcinogen regulated at the more stringent end of the range to cause 332 excess cancers within the country. And for a one-in-ten thousand risk, the number would be 33,200 excess cancers. Added to that would be risks from other hazardous air pollutants, including “synergistic risks,” which occur when combinations of chemicals pose risks greater than the sum of the risks posed by each individual chemical.

Another CAA regulatory program is New Source Performance Standards, based on “the Best System of Emission Reduction,” considering cost, any non-air quality impacts, and energy requirements. That program has served two primary purposes. NSPS standards for sources that are also regulated under the criteria program set a floor beneath which other technology-based standards (specifically, Best Available Control Technology and Lowest Achievable Emission Rate, which apply to new major sources or significantly modified major sources of criteria pollutants) cannot lawfully drop. Also, the NSPS program acts as a gap-filler, allowing EPA to regulate new and existing sources that fall at least partially between the cracks in other CAA programs, for example regulation of methane emissions from oil-and-gas production facilities.

EPA’s air quality regulatory programs are hobbled in their ability to protect public health by agency decisions to base regulatory actions on emission estimates rather than on actual emission measurements. In fact, more than five decades after the act was passed, EPA continues to designate areas of the country as “unclassifiable,” meaning that the agency believes it is unable to determine whether health protection standards are met “on the basis of available information.” In her book Next Generation Compliance, veteran environmental regulator Cynthia Giles notes, “When EPA monitors actual emissions, it finds that pollution is much worse than is being reported. . . . The net effect: a lot more pollution [goes] into the surrounding communities than . . . revealed by the estimated emissions.” Here is one example: When EPA set its action level for benzene ambient concentrations at the fencelines of oil refineries, the agency selected a concentration that no refinery would exceed as long as its estimates of fugitive emissions were accurate. Nonetheless, in 2018-2019, benzene concentrations in air around 10 oil refineries blew that limit. The offending refineries include operations by major players such as Chevron, Shell, Marathon, Valero, and BPF Energy. The result provides some insight into the efficacy of using unverified industry estimates of emissions as a basis for protecting public health.

In a 2008 case, NRDC v. EPA, the D.C. Circuit upheld the agency’s 2006 analysis of risks from the synthetic organic chemical industry’s hazardous air pollutant emissions. EPA relied on the seven-year-old results of an American Chemistry Council questionnaire, filled out by member companies, with a 44 percent response rate. In other words, EPA based its analysis that was supposed to provide the public with an ample margin of safety on old industry estimates from a minority of the regulated community. Why? The agency explained that, among other things, reliance on “industry sources is a well-established practice” and it would have been “very costly and time-consuming” for the agency to require collection and submission of data. Upholding EPA’s decision, the court explained, “We generally defer to an agency’s decision to proceed on the basis of imperfect scientific information, rather than to invest the resources to conduct the perfect study.”

Recently, the agency has sought to grapple with the excess emissions caused by “startup, shutdown, and malfunction” events, which can dwarf the emissions that are subject to permit limits. Similarly, the agency is revisiting exemptions for “fugitive emissions”; that is, emissions that “could not reasonably pass through a stack, chimney, vent, or similar opening.” Both of these emission categories are significant contributors to the air pollution problem that are not adequately accounted for in the current permitting regime.

Regulation of odors could help mitigate these deficiencies and focus EPA and state agencies on avoiding local impacts. These often fall on lower-income and minority communities. The problem has been amply demonstrated. The 2002 Third Circuit case of South Camden Citizens in Action v. New Jersey Department of Environmental Protection concerned an air emissions permit issued for a new facility in a neighborhood that already had “two Superfund sites, several contaminated and abandoned industrial sites, and many currently operating facilities, including chemical companies, waste facilities, food processing companies, automotive shops, and a petroleum coke transfer station,” not to mention permits that had been issued for “operation of a regional sewage treatment plant, a trash-to-steam incinerator, and a co-generation power plant.” The neighborhood comprised 63 percent African American, 28.3 percent Hispanic, and 9 percent white residents.

Occasionally, one hears the argument that residents of fenceline communities must have decided, voluntarily, to move close to pollution sources. Of course, Congress intended the Clean Air Act to result in healthful ambient air regardless of a neighborhood’s location. In addition, however, the assumption that residents of overburdened neighborhoods are volunteers is flawed. A 2023 environmental justice lawsuit, Inclusive Louisiana, et al. v. St. James Parish, was based on allegations that, in 2014, St. James Parish adopted a land use plan that steered industry to the parish’s 4th and 5th Districts, which are majority African American, by designating large tracts of property in those districts as “future industrial.” The lawsuit also alleged that the 2014 plan created industrial buffer zones for the parish’s white-majority churches but not Black-majority churches. (In Louisiana, a “parish” is the equivalent of a county.) The court dismissed the case on statute-of-limitations grounds but held that it “cannot say that [the plaintiffs’] claims lack a basis in fact.” Especially given the lack of specific environmental justice legislation, regulation of odors would provide a tool for mitigating the effects of such disproportionate environmental impacts.

Is it practical for EPA to set a welfare standard for odors? It is. One approach to odor regulation is the narrative standard. For example, the Virginia Administrative Code’s Standard for Odor reads, “No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions which cause an odor objectionable to individuals of ordinary sensibility.” Narrative standards are relatively common in Clean Water Act regulation. The U.S. District Court for the Northern District of Florida explained the concept in its 2012 opinion in Florida Wildlife Federation v. Jackson by way of analogy: “a state could adopt a numeric speed limit—70 miles per hour—or a narrative standard—don’t drive too fast. Or a state could adopt a combination of both—don’t drive over 70, and don’t drive too fast for conditions.”

In contrast, Colorado’s odor emission regulation takes a numeric approach. The idea is to determine how many times a sample must be diluted before becoming undetectable: “For areas used predominantly for residential or commercial purposes it is a violation if odors are detected after the odorous air has been diluted with seven (7) or more volumes of odor free air.” The approach is analogous to EPA Method 9 opacity readings, which require trained smoke readers to evaluate emission plumes. Similarly, most odor tests still require human noses, but those noses are deployed systematically, with the aid of a mechanical dilution device such as an olfactometer. The Bay Area Air Quality Management District’s “Odorous Substances” regulation provides, “a diluted sample shall be deemed odorous if during evaluation . . . at least two of the [three] subjects gave negative responses to at least 8 of the 10 odor-free or ‘blank’ presentations and affirmative responses to at least 8 of the 10 sample presentations.” The Bay Area regulation applies after 10 or more people complain to the Air Pollution Control Officer within a 90-day period “until such time as no citizen complaints have been received by the APCO for one year.”

Another approach is to develop ambient concentration standards for specific chemicals, derived from odor measurements. In a 2015 paper, “Approaches to Derive Odor-Based Values,” the Texas Commission on Environmental Quality’s Toxicology Division discusses and provides a list of publications that describe standardized methods for odor measurement. The report highlights odor threshold studies from a 1992 EPA study and a 1989 American Industrial Hygiene Association report. Under this approach, for example, a 1-hour average ambient reading of 30 parts per billion by volume of hydrogen sulfide could be a violation of an odor regulation. Of course—under an EPA welfare standard for odors—no individual source would necessarily be in violation. Instead, the state’s attainment status for the secondary odor standard would be at risk and the state, ideally, would take action to remedy the problem.

For some odors associated with some industries, surrogate odor values may be useful. Moreover—as with all environmental monitoring—technology is constantly improving and the ability to conduct widespread ambient monitoring with “electronic nose” technology may not be far off.

There are no panaceas. Just as all Clean Air Act programs suffer from gaps and mistakes, regulation of odors under the criteria program would pose frustrations. As a secondary, welfare standard, an ambient NAAQS for odors would lack a statutory attainment deadline; instead, attainment would be required on “the date by which attainment can be achieved as expeditiously as practicable after . . . such area [is] designated nonattainment.” This lack of a specific attainment deadline, of course, makes ambient regulation of odors more practical in the short-run and less scary for EPA. It also opens the door for serious foot-dragging that will require political will to overcome. But at least it would provide a handle that would allow reasonably enlightened regulators to insist on fenceline improvements.

Part of the genius of the Clean Air Act is that its overlapping programs can help make up for the shortcomings of individual programs. For example, hazardous air pollution standards result in reduction of ozone precursors that states might never have summoned the political will to mandate in discretionary parts of their state implementation plans. The ozone ambient standard helps limit volatile organic compounds (as ozone precursors) that might otherwise have only been subject to emission standards based on estimates of “acceptable” risk from individual chemicals.

Congress’s failure to enact environmental justice legislation creates a large gap in protection for some of our most vulnerable communities—those near the fencelines of industrial facilities. Regulation of ambient odors as a criteria pollutant would be one step toward addressing that gap. And with practice, and improving technology, an ambient regulation for odors could represent significant progress in realizing the Clean Air Act’s vision: “to protect and enhance the quality of the nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”

OPENING ARGUMENT The nose is a sensitive instrument for detecting chemicals. EPA can take advantage, making progress in public health protection, and improving quality of life for those who already shoulder a disproportionate share of the burdens associated with industrial society.

Behind EPA’s Cancer Alley Pullback
Author
Lylla Younes - Grist
Grist
Current Issue
Issue
5
In Cancer Alley, huge chemical plants often have citizens as neighbors. Getty Images.

Pastor Philip Schmitter waited more than 20 years for the Environmental Protection Agency to do its job. In 1992, he’d filed a civil rights complaint to halt the construction of a power station that would spew toxic lead into the air of his predominantly Black community in Flint, Michigan. Decades passed without a response, so he joined four other groups around the country in a lawsuit to compel the agency to address their concerns.

The case hinged on the EPA’s duty to enforce Title VI, a provision of the landmark Civil Rights Act of 1964. Title VI allows federal agencies to take action against state policies that discriminate by disproportionately harming groups protected by the act—the discriminatory policy being, in this case, Michigan’s permitting of a plant that would pollute Black neighborhoods. After EPA lost the suit in 2020, agency officials finally began timely investigations of civil rights complaints and made some of EPA’s first-ever findings of discrimination.

That progress, however, could be short-lived.

This summer, EPA abruptly terminated three of its highest-profile open civil rights complaints. The move deals a major blow not only to the majority-Black communities that filed them but also to EPA’s own authority to enforce Title VI in places with some of the nation’s worst air quality. The cases originated in the region widely known as Cancer Alley, an 85-mile industrial corridor in southeast Louisiana, and were voluntarily closed after the state’s Republican attorney general sued the federal government for alleged abuses of power during the complaint negotiations.

Grist obtained copies of two draft agreements from the now-defunct negotiations, which reveal efforts by EPA officials to institute profound changes to Louisiana’s permitting process, which has historically concentrated chemical plants near Black communities. One of the most substantial terms of the resolution would have required state regulators to assess whether a community is already exposed to disproportionately high levels of pollution before permitting new plants there. With the cases closed, the prospect of those changes has all but vanished.

“This is basically the EPA not using the full power of its environmental laws,” said Adam Kron, a senior attorney at Earthjustice who worked on the case. He described Title VI as one of the clearest ways to advance environmental justice, a goal that the Biden EPA has repeatedly called a priority. “It’s disappointing to see EPA acquiesce to what seems like a lawsuit that really doesn’t have much grounding to it.”

The Title VI statute states that no person should, on the basis of race, color, or national origin, be subject to discrimination under any program that receives federal funding. The provision is wide-reaching, covering hundreds of thousands of programs across the country and governing decisions as diverse as where a road can go or who can get treatment at a hospital. But in the environmental space, it’s been largely underutilized, with EPA routinely failing to respond to dozens of cases within the 180-day period required by the law.

The 2020 federal court ruling on Schmitter’s case gave communities in Louisiana’s St. James and St. John the Baptist parishes hope that Title VI could finally help limit pollution in their backyards. Together, their complaints alleged a number of negligent actions by state regulators, including a failure to curb cancer-causing emissions that violate federal safety standards, and to consider pre-existing pollution when permitting new industrial plants. A formal resolution of their cases would have likely addressed these concerns.

The draft agreements that Grist obtained include sweeping measures to change the way the state of Louisiana approves new industrial facilities, like folding community involvement into critical moments of the decisionmaking process and requiring officials to prove, both before and after plants begin operating, that their emissions will not disproportionately harm people of color. In Louisiana, majority-Black communities are exposed to at least seven times the emissions, on average, as predominantly White communities in industrial areas.

“We were hoping to get systemic change,” said Kimberly Terrell, a research scientist at the Tulane Environmental Law Clinic, who worked on the complaints. “For decades, people have been fighting against individual polluters and individual facilities, but when the decisionmaking process itself is flawed, you need something that seeks to improve it.” Louisiana officials did not respond to a request for comment.

Despite progress with the agreements, testimony in Louisiana’s legal filings suggests that, at some point during the negotiation process, things between state and federal officials began to sour. Then, in late May, the state’s attorney general, Jeff Landry, sued EPA.

The case hinged on EPA’s ability to pursue actions based on “disparate impacts,” or the idea that a policy or agency decision can disproportionately harm a specific group of people, regardless of whether or not that harm is intentional. These standards have always been unpopular with some state officials who view them as evidence of federal agencies meddling in matters beyond their authority. The Supreme Court’s conservative majority is sympathetic to these concerns, ruling in numerous landmark cases over the past few years to vastly restrict the powers of federal regulators.

But multiple lawyers whom Grist interviewed argued that Louisiana’s legal arguments would have ultimately been unlikely to undermine Title VI, raising the question of why EPA appears to have preemptively conceded on the matter. “It was unripe—there was no action by the EPA that Louisiana could challenge,” said Kron. “So it seems like a strange lawsuit for [the federal government] to take as a serious enough threat to just undo this whole process that’s been going on for over a year.”

Environmental advocates and residents in Louisiana also decried the decision to close the complaints.

“I often feel like our communities are left to fight on our own,” said Joy Banner, an activist and long-time resident of the region. “It’s disappointing when we have organizations at the federal level who aren’t willing to step in to fight along with us for our basic human right to survive.”

EPA spokesperson Khanya Brann told Grist that the agency remains “fully committed” to improving the environmental conditions in the communities that filed the complaints.

“Community participation has been critical to identifying both problems and solutions, and we look forward to our continued partnership with the residents in both parishes as we continue our joint efforts to improve public health and the environment,” she said.

The Environmental Protection Agency wrote in its letters announcing the closure of the complaints that it would address residents’ concerns through other means, like its pending litigation against one of the region’s most infamous chemical plants and its proposed rules for tightening standards for certain types of facilities operating in the region. But residents told Grist that those measures do not cover the totality of their concerns, and that a major benefit of the Title VI process is its speedy timeline: While court cases can drag on and emissions standards can take years to implement, a resolution of the complaints may have granted communities much faster relief from toxic emissions.

Claire Glenn, a criminal defense attorney with a background in civil rights law, compared EPA’s use of Title VI to other federal agencies’ more robust implementation of the law. The Department of Transportation, for example, requires regulators to consider whether a project will disproportionately impact a group of people before it’s ever constructed. However, she added, deciding where a transit line goes is often less controversial than approving a multi-billion dollar company’s new industrial complex. “I think the reason EPA’s Title VI program is so hamstrung is because it is so directly butting up against corporate interests,” she said.

Advocates told Grist that they are exploring other options to advance residents’ concerns, and called EPA’s actions this week a setback but not a roadblock. Residents said that they are determined not to give up.

“We come from a long line of people who fought,” said Banner. “This is just one little hill that we have to overcome—but ultimately I see us heading to the mountain, and victory is the mountain.”

This story was originally published by Grist.

TESTIMONY The agency was on the cusp of cleaning up Cancer Alley. Then it backed down. Documents obtained by the online publication Grist reveal the sweeping changes that EPA was negotiating before giving in to GOP pressure.

Science of Federal Air Regulation and State Wildlife Management
Author
Craig M. Pease - Former Law School Professor
Former Law School Professor
Current Issue
Issue
4
Craig M. Pease

The wildlife management science underlying hunting and fishing regulation by the states is rather different from the science of federal toxics, wetlands, and carbon dioxide regulation. So too, the political milieu wherein science enters wildlife regulation is quite unlike the politics of science found in federal environmental regulation.

Connecticut deer management is governed by its own specific state statute, the White-tailed Deer Management Act of 1974. To document its implementation of that statute, the Connecticut Department of Energy and the Environment’s Wildlife Division publishes annually a “Deer Program Summary.” The herd is about 120,000, with about 8,000 killed annually by hunters, and about 18,000 deer killed in collisions with autos.

It is a complex regulatory scheme, with 12 deer management zones, and specific regulations pertaining to rifles, muzzleloaders, shotguns, revolvers, bows, crossbows, does, landowners hunting their own property, Sunday hunts, wearing orange, and hunting near dwellings. Layered over this are additional regulatory provisions specific to the urban areas in the southwest of the state that have way too many deer, including sharpshooters, tree stands, and special permit provisions to incentivize hunting there. The typical hunter is unsuccessful. But in theory, a hunter who carefully followed the regulations could, in a single year, take 14 deer.

As laid out in the most recent summary, the Wildlife Division bases the hunting regulations on data from prior year harvest record, hunter surveys, habitat studies, road kills, and acorn crop size, all indirect proxies for just counting deer. Extrapolating to deer herd size from these indirect data is not entirely straightforward. That said, by employing a mix of formal data analysis and qualitative judgment, I am confident that the Wildlife Division has an excellent understanding of the Connecticut deer herd, looking across the entire state.

Yet the state’s hunting regulations are specific and numerous. There is much more limited and uncertain data supporting any given specific regulation (e.g., a bow hunt on private property, in one specific management zone). In essence, the regulatory scheme itself has created its very own scientific uncertainty.

This scientific uncertainty is an entirely different situation from that which arises in federal regulation of particles known as PM2.5. There the scientific uncertainty arises because the regulations are working at the limit of the scientific frontier—the regulators are trying to regulate PM2.5 simultaneously as scientists are pushing back the PM2.5 scientific frontier. By contrast, there is not much of a Connecticut deer herd scientific frontier. The role of the Wildlife Division is not so much to purse new scientific knowledge, but rather, year-after-year, to gather the same data and apply the same analysis methodologies.

This is not a criticism of the Wildlife Division; it is a good thing, from the viewpoint of regulatory consistency. Indeed, although I have referred to the Wildlife Division’s deer population work as science, its role is more akin to engineering or medicine. Scientists seek new knowledge. Engineering and medicine apply existing knowledge.

In federal regulation, opposition to the regulation itself often masquerades as opposition to the underlying science. For PM2.5, and much federal environmental regulation, that opposition typically consists of corporate and other economic interests. This is perhaps unsurprising, as essentially all federal environmental regulation is rooted in the Commerce Clause.

By contrast, much opposition to state hunting regulation, and the underlying recommendations of wildlife managers, comes from non-economic perspectives, especially animal rights activists. It is instructive to read the Humane Society’s toolkit, “Coexisting With Deer: An Advocate’s Guide for Preventing Deer Culls in Your Community,” side-by-side with the Wildlife Division’s “Managing Urban Deer in Connecticut.” These publications differ on many points, including immunocontraception (deer birth control), Lyme disease, fencing, and deer-vehicle collisions. It is not so much that the Humane Society has the science wrong; rather, they repeatedly fail to forthrightly acknowledge the high cost, impracticalities, and ineffectiveness of the policies they espouse.

We have too much PM2.5, and often have too many deer. Whereas the wide prevalence of PM2.5 makes its regulation more difficult, the wide prevalence of deer makes their regulation easier, by providing the regulator with a broad array of regulatory options to choose among, hopefully in ways consistent with the governing statute and science.

Science of Federal Air Regulation and State Wildlife Management.

Cut Methane Now or Doom the Planet
Author
Durwood Zaelke - Institute for Governance and Sustainable Development
Institute for Governance and Sustainable Development
Current Issue
Issue
3
Parent Article

The climate emergency is here, and the only way to stop the downward slide to chaos is to cut methane and other super climate pollutants as fast as possible, while also dramatically reducing carbon dioxide emissions. One message has been made clear by the United Nations Environment Programme and Climate and Clean Air Coalition’s Global Methane Assessment, and the Intergovernmental Panel on Climate Change’s Sixth Assessment reports: Cut methane now or doom the planet.

According to the recent IPCC reports, every added increment of climate pollution causes further irreversible harm. As just one example, the Arctic is now warming four times faster than the rest of the world. In March, both the Arctic and Antarctic experienced unprecedented heat, with the Arctic 30 degrees Celsius above normal, and the Antarctic 40 degrees above normal.

Tipping points are notoriously hard to quantify, and hence frequently excluded from climate models. But the probability that we’ll pass critical thresholds in a matter of years to decades is increasing every day.

In this do-or-die moment, the biggest immediate opportunity to slow warming is to cut methane and other short-lived climate pollutants, including hydrofluorocarbon (HFC) refrigerants, tropospheric ozone, and black carbon soot. Addressing these emissions is the single most impactful and fastest way to slow warming over the next two decades. It also gives us the best and probably only chance of keeping the 1.5 degrees Celsius goal in sight. This strategy could slash the rate of overall global warming by half, and the rate of heating in the Arctic by two-thirds. The good news is we already know how to do this, and can thus realize the benefits to health, productivity, and food security.

As explained by the Sixth Assessment report from IPCC Working Group III, “Due to the short lifetime of methane in the atmosphere, projected deep reduction of methane emissions . . . effectively reduces peak global warming.” This aligns with calculations from the Global Methane Assessment that indicate reducing methane emissions by 45 percent by 2030 would avoid almost 0.3 degrees Celsius of warming globally and 0.5 degrees Celsius of warming in the vulnerable Arctic by the 2040s. The assessment further finds that this reduction would prevent 255,000 premature human deaths every year, 775,000 asthma-related hospital visits, 73 billion hours of lost labor from extreme heat, and 26 million tonnes of crop losses globally.

While decarbonization is essential, such measures will cause warming over the next decade by reducing the cooling particles that are co-emitted during the burning of coal and diesel—which has the effect of “unmasking” existing warming and cancelling the cooling benefits of carbon reductions until around mid-century. The Sixth Assessment report makes this clear: “The projected reduction of cooling and warming aerosol emissions over time leads to net warming in the near- to mid-term . . . mostly due to reduced fossil fuel combustion that was not equipped with effective air pollution controls.”

Both the United States and the EU are taking steps to slash their methane emissions, including by leading the Global Methane Pledge, which has been signed by 111 countries. The pledge commits to cutting global methane emissions by at least 30 percent below 2020 levels this decade. If achieved—and combined with rapid decarbonization—such reductions would put the world on a pathway consistent with limiting warming to 1.5 degrees Celsius by the end of this century, with limited or no overshoot.

But the voluntary pledge is not sufficient in the face of the fast-unfolding climate emergency. The EU and United States need to work together to develop a global methane agreement that is inspired by the Montreal Protocol on Substances That Deplete the Ozone Layer, and that borrows key aspects of what is widely regarded as the world’s most successful multilateral environmental agreement. The European Parliament has already started calling for such an agreement, which presumably would focus initially on stopping leaks from the fossil fuel sector.

As we tighten the screws on methane leaks, we also need to transition as quickly as possible from fossil fuels to verifiably clean energy—which doesn’t include forest bioenergy. With Putin’s invasion of Ukraine and the war crimes we see on television, it’s untenable for Europe to continue buying gas from Russia, paying an estimated $340 million each day, according to the Financial Times. So far, Lithuania, Latvia, and Estonia have committed to ending Russian gas imports, and pressure is building on other European countries to follow suit. For the climate and security, it’s essential to hasten the shift from “petrostates” to “new electrostates,” in the words of The Economist.

As Europe shifts from Russian gas, which has the highest methane leak rate in the world, it’s important that any replacement gas has a low leak rate. An immediate agreement to reduce methane leaks among the countries sending replacement gas to Europe could be the on-ramp for achieving gas with a low leak rate, and could build the foundation for a global methane agreement. This should be a key goal of the Task Force on Energy Security set up under the March 25, 2022, Joint Statement between the United States and the European Commission on European Energy Security.

Durwood Zaelke is founder and president of the Institute for Governance & Sustainable Development, and adjunct professor at University of California, Santa Barbara. The author thanks Romina Picolotti for her significant contribution.

We Can't Afford Not to Cut Methane
Author
Drew Shindell - Climate and Clean Air Coalition
Climate and Clean Air Coalition
Current Issue
Issue
3
Parent Article

Last year we saw yet another summer in which climate change served up deadly wildfires and heat domes, and yet another autumn of supercharged hurricanes. But at the UN climate conference in Glasgow last November, one promising action reflected the urgent need for progress on climate. Led by the United States and the European Union, countries around the world signed onto a global pledge to reduce methane, the second most important driver of climate change, after carbon dioxide.

The Global Methane Pledge calls on countries to reduce methane emissions by at least 30 percent by 2030 relative to 2020 levels. As of March, 110 countries had signed on. This is a major win for fast action on climate and shows that countries are broadening efforts to fight the climate crisis.

Why target methane? Methane emissions are responsible for almost half of the net warming impact caused by human activities since the beginning of the industrial revolution. To keep warming below 1.5 degrees Celsius, we must get to net-zero emissions of long-lived greenhouse gases—primarily carbon dioxide—along with large reductions in emissions of short-lived climate pollutants, primarily methane. Both achievements need to happen. Unlike carbon dioxide, which stays in the atmosphere for hundreds of years, methane’s lifespan is approximately twelve years, That means that while decarbonization provides long-term, but not near-term, climate relief, actions to reduce methane can rapidly slow warming. Phasing out fossil fuel usage only achieves about 30 percent of the methane reductions needed to limit warming to 1.5 degrees over the next 30 years. The global pledge specifically targets methane across all sectors, making it a critical companion to net-zero goals.

Our recent Global Methane Assessment for the UN Environment Programme and the Climate and Clean Air Coalition found that a 40 percent reduction in methane emissions in 2030 relative to 2020 levels would put us on a path consistent with 1.5 degrees of warming. The pledge brings us at least three-quarters of the way to that goal—if implemented widely. That’s a good start, and as countries get better at reducing methane and technologies improve, we can and should aim for even bigger cuts.

The reductions needed could be achieved almost completely through measures that target methane directly, with technology we already have and at neutral costs. In the United States, these include leak detection and repair for oil and gas systems, increased recovery of gas currently flared or vented from oil and gas operations, oxidation of methane vented from coal mines, and capture and use of methane from landfills and manure. All emitting sectors need to be involved. To cut the rest, the United States should reduce food waste and loss and adopt healthier diets, with reduced consumption of cattle-based foods. These efforts would have the equally important benefit of reducing hunger and improving public health, and are arguably best addressed with programs focused on those areas and knowledge from the behavioral sciences.

Curbing methane emissions is also relatively cheap. About 60 percent of the emissions controls are low-cost (less than $600 per metric ton of methane) or even result in net savings. That’s because captured methane, whether from manure, decomposing food scraps, or at oil wells, has value if brought to market or turned directly into electricity. When gas pipelines and storage tanks leak, they’re essentially leaking money. When needed, governments should support financing for such methane capture projects.

And then there’s the upsides for the environment and for public health. Meeting the pledge’s 30 percent reduction target would shave off approximately 0.2 degrees Celsius warming from 2040 to 2070, avoid roughly 200,000 premature deaths per year from ozone exposure by 2030, prevent the loss of about 21 million tons of wheat, rice, corn, and soy per year from ozone exposure and climate change, and save 60 billion lost work hours annually from heat exposure. Those benefits would increase with further methane reductions after 2030.

When we add up the cost to human health, agriculture, forestry, labor productivity, and additional climate-related damages, each metric ton of methane emitted totals roughly $4,300 in losses and unrealized potential. Put simply: the benefits of reducing methane through targeted measures far outweigh the costs. And prior experiences in reducing air pollutants and ozone-depleting substances show us that actual mitigation costs are frequently far less than initial estimates. We must raise awareness of this financial calculus.

The Global Methane Pledge represents a pivotal moment in our fight against climate change and comes at a time when rapidly improving monitoring capabilities can help optimize targeted reductions. The United States should lead by implementing policies that make the pledge’s goals a reality and rapidly reduce emissions from the fossil sector, landfills, and manure. We must make cutting methane a priority. We can’t afford not to.

Drew Shindell is Special Advisor on Methane Action to the Climate and Clean Air Coalition and Nicholas Professor of Earth Sciences at Duke University.

Call to Action for Zero Methane Emissions
Author
Cynthia L. Quarterman - Atlantic Council's Global Energy Center
Atlantic Council's Global Energy Center
Current Issue
Issue
3
Parent Article

For more than a decade, new geologic finds and mining practices have supplied the United States with a bounty of natural gas. The country has become the world’s largest gas producer and a net exporter, with plenty to spare, even in time of war. Thanks to this bounty, natural gas has surpassed coal as the largest feedstock for electricity generation in the United States, helping to reduce greenhouse gas emissions.

Nonetheless, the use of natural gas is no panacea. It mitigates one problem, carbon dioxide releases, but exacerbates another—methane emissions. To unleash the full clean energy potential of natural gas, policymakers and industry need to quickly adopt and implement common-sense methane mitigation measures.

While natural gas burns relatively cleanly, it is made up primarily of methane, a potent GHG. When methane is not burned, but released into the atmosphere, its climate effect is significantly more potent than carbon dioxide in the short term. Methane is estimated to have accounted for 30 percent of global warming since pre-industrial times. The largest contributor to anthropogenic methane releases is agriculture, from sources such as livestock, manure, and enteric fermentation. Second are fossil fuel-related methane emissions from the energy sector. Third is the waste industry, from landfills and sewage. Although addressing the larger, longer-term effects of carbon dioxide is a top priority, decreasing shorter-lived methane emissions now will allow more time to address society’s bigger carbon emissions challenge.

There is no doubt that reducing methane emissions is the right thing to do for our future. Fortunately, most stakeholders appear to be on board—which means the time to act is now. Beyond slowing down climate change, the country will reap economic benefits associated with new methane-capturing technology. Still more economic benefits will arise from recovering and selling otherwise wasted methane. Yet, before any great leaps can be made in methane emissions reduction, the federal government should develop a comprehensive national policy and research strategy to single out methane reduction from the long laundry list of climate change initiatives.

The plan must not only identify current methane emissions by sector, but also clearly delineate future target levels for each—and how benchmarks will be reached. Many view the fossil fuel industry as having the greatest potential to mitigate methane emissions at the least cost, in part because any methane recovered can be sold. That may be true, but we cannot rely upon the oil and gas industry alone to reduce emissions.

The residential appliance industry downstream can also work to prevent methane releases. And though agriculture, the largest methane emitter, may seem too multitudinous to tackle, at a minimum, large-scale livestock industry players must seriously engage in reducing methane emissions by using different livestock feed or improving manure and animal-handling practices. Similarly, the waste management industry needs to create and implement systems that reduce methane emissions or convert releases into fuel. The expectations on all industries must be clearly set and defined.

To act on the low-hanging fruit in the fossil fuel industry, we first need a clear understanding of the current state of affairs. EPA and some NGOs have attempted to estimate methane emissions from the sector. The crux of the problem is: How much and from where is methane leaking, and how should these releases be monitored, measured, minimized, and verified? A White House working group on GHG monitoring and measurement announced at the end of January is starting to look at that question.

Fortunately, many technological solutions to minimize and prevent methane leaks in the fossil fuel arena already exist. What’s missing is either a firm industry commitment with government acceptance, or an enforceable policy mandate and accompanying industry agreement to reduce methane emissions to a certain level by a specific date. The proposed EPA rule to reduce methane emissions from oil and gas operations is a step in the right direction. A long-stymied Bureau of Land Management waste prevention rule to minimize methane emissions on federal lands would also help. Similarly, the planned rulemaking by my former agency, the Pipeline and Hazardous Materials Safety Administration, could help reduce methane emissions from oil and natural gas transportation-related operations.

Every little bit will help, but can we really wait for those iterative, piecemeal regulatory changes to pass through the digestive track of the long, litigation-rich rulemaking process? Is that necessary when some of the biggest stakeholders in the oil and gas industry (including the American Gas Association, American Petroleum Institute, Interstate Natural Gas Association of America, and others) and their company’s shareholders vocally support methane reduction? Would a congressional solution or negotiated agreement be feasible? And finally, among the many paths forward, can we as a country rise to the occasion and find a solution before it is too late? As a former chief of two fossil fuel-related regulatory agencies, I believe we can, and we must.

Cynthia Quarterman is a distinguished fellow at the Atlantic Council’s Global Energy Center. She is former administrator of the federal Pipelines and Hazardous Materials Safety Administration and former director of the Minerals Management Service at the Interior Department.

Use Incentives to Boost Innovation and Cut Emissions
Author
Mary K. Crowell - Beveridge & Diamond PC
Beveridge & Diamond PC
Current Issue
Parent Article

The increased focus on methane emissions is likely here to stay. The Biden administration has demonstrated that reducing methane emissions is a high priority, and the EU released its own Methane Strategy in 2020. In addition, more than 100 countries, including the United States, have pledged to reduce methane emissions by 30 percent by 2030.

This flurry of recent activity will only continue, given the scientific consensus on global warming from human activity. It is important that stakeholders—such as producers who emit methane, states and municipalities, and other industry players—understand the risks and opportunities of these policy goals, and seize available incentives to harness the current momentum.

Because of years-long legal challenges to rulemaking under the Clean Air Act to limit greenhouse gas emissions, the regulatory landscape in the near future is somewhat unpredictable. In the challenges’ latest iteration, the Supreme Court granted certiorari to review the Trump administration’s Affordable Clean Energy Rule, which directly implicates EPA’s authority to create rules that regulate greenhouse gas emissions under Section 111(d) of the Clean Air Act. The pendulum continues to swing; this decision could effectively limit EPA’s authority or expand it, providing a degree of regulatory uncertainty for methane emissions regulations under Section 111(d).

Notwithstanding this uncertainty, policymakers and regulators will likely continue to use whatever tools are available to them to address methane emissions. For example, the Biden administration recently released its U.S. Methane Emissions Reduction Action Plan. The sweeping plan introduced a litany of strategies to reduce key sources of methane from various sectors. Targeting methane emissions through voluntary incentive programs is a pillar of the plan’s strategy to decrease emissions. By injecting billions of dollars into the mix, the administration hopes to create new energy sources, markets, and jobs at the same time. This strategy could work: In many cases, cutting emissions will require innovation in emission control and detection technologies, particularly for hard-to-target and hard-to-detect emissions sources. The methane plan reflects the belief that robust government incentive programs can work in tandem with regulation to spur solutions.

In this spirit, programs like the U.S. Department of Agriculture’s Climate Smart Commodities show promise for reducing methane emissions through creating new markets and products. Announced in February 2022, the program will allocate $1 billion toward projects proposed by producers that bolster methods of climate-conscious agricultural production. With this funding, USDA aims to develop “climate-smart commodities,” defined as an “agricultural commodity that is produced using farming, ranching, or forestry practices that reduce greenhouse gas emissions or sequester carbon.”

The investment offers strong incentives for the agricultural sector, which is the greatest contributor to U.S. methane emissions and has seen its emission levels increase since 1990. The grants span from one to five years, with totals up to $100 million. This kind of public and private partnership is an example of how voluntary engagement of knowledgeable stakeholders can lead to innovative solutions.

Another important incentive in the toolkit could be bolstering the carbon credit system for producers that capture their methane emissions to create biogas. Many landfill operators already capture biogas, and, according to EPA, an estimated 474 additional landfills are viable candidates to follow suit. States are increasingly focusing on landfill emissions. The methane plan also announced EPA’s intentions to boost its voluntary Landfill Methane Outreach Program, with a goal of recovering 70 percent of landfill methane for biogas creation. Landfill operators could tap into these resources to continue to develop systems to capture biogas to sell in the alternative fuel market, turning this methane into an energy source.

Funding for methane reduction projects similarly abounds under the 2021 bipartisan infrastructure law. The law aims to reduce methane emissions in the oil and gas sector by allocating $4.7 billion to plugging the more than 3 million estimated abandoned wells. 26 states have already provided notices of intent to obtain program grants, and additional funding will also be allocated for federal land and a tribal orphaned well grant program. The infrastructure law also directs $11.3 billion to the Abandoned Mine Land Program through the Department of the Interior. These funds will be accessible to states and tribal nations to address old mining operations that emit methane.

Although incentive-based strategies alone are unlikely to achieve current methane emissions reduction goals, they can work in tandem with other command-and-control regulations, thereby lessening the regulatory burden imposed on stakeholders and offering an important tool to reduce methane emissions. Ideally, policies can spur connections between stakeholders, provide critical project funding, and encourage creative innovations.

Mary K. Crowell is an associate attorney at Beveridge & Diamond PC. Opinions expressed are her own.

Opportunity Knocks to Cut Methane. Can We Rise to the Occasion?
Author
Mary K. Crowell - Beveridge & Diamond PC
Cynthia Quaterman - The Atlantic Council's Global Energy Center
Durwood Zaelke - Institute for Governance & Sustainable Development
Liz Scott - American Lung Association
Kassie Siegel - Center for Biological Diversity's Climate Institute
Drew Shindell - Climate and Clean Air Coalition
Beveridge & Diamond PC
The Atlantic Council's Global Energy Center
Institute for Governance & Sustainable Development
American Lung Association
Center for Biological Diversity's Climate Institute
Climate and Clean Air Coalition
Current Issue
Issue
3
The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report

Methane is over 80 times more effective than carbon dioxide at trapping heat in the atmosphere, making reducing emissions crucial to slowing climate change. But satellite technologies pinpoint tens of thousands of methane sources—from oil and gas wells, to natural gas pipelines, to livestock feedlots, to landfills. How can we come up with the best policies to foster innovation and cut methane from such a variety of sources?

At last fall’s UN climate summit, more than 100 countries signed onto a global pledge to reduce worldwide methane emissions by 30 percent by 2030. Back home, EPA unveiled a set of proposed rules in November to reduce methane leaks from pipelines. Meanwhile, the bipartisan infrastructure law allocates billions of dollars toward cleaning up orphan oil and gas wells and modernizing natural gas pipelines.

At the local level, cities from Seattle to New York have recently banned gas use for heating and cooking in new buildings. Others point out that methane emissions from livestock (think: cattle burps) and agriculture have yet to be tackled by the administration.

We ask experts from a range of backgrounds: How can we capitalize on the heightened interest in methane to achieve the most reductions possible? What role should affected sectors play in fast-tracking methane cuts? And among a slew of technological and policy proposals for reducing methane, which are the most promising—and what solutions are missing?

Methane is over 80 times more effective than carbon dioxide at trapping heat in the atmosphere, making reducing emissions crucial to slowing climate change. But satellite technologies pinpoint tens of thousands of methane sources—from oil and gas wells, to natural gas pipelines, to livestock feedlots, to landfills. We ask experts from a range of backgrounds: How can we come up with the best policies to foster innovation and cut methane from such a variety of sources?