April 17, 2025 • 56 mins
In March of 2025, the Competitive Enterprise Institute (CEI) released a major new publication, “Modernizing the EPA: A Blueprint for Congress.” This book explores numerous issues across the EPA and the statutes that it administers. The podcast discussion focuses primarily on how the EPA’s role has evolved, particularly as it relates to air regulation, including greenhouse gas regulation. In addition, the discussion highlights flaws and outdated aspects of the Clean Air Act and the need for Congress to reassert its lawmaking power. The lead author and co-editor of the book offers ideas on how Congress can refine the federal approach to environmental and climate policy.
Listen in as Michael Buschbacher, Partner at Boyden Gray PLLC, interviews Daren Bakst, Director of CEI’s Center for Energy and Environment highlighting the key findings and recommendations in the publication.
Listen in as Michael Buschbacher, Partner at Boyden Gray PLLC, interviews Daren Bakst, Director of CEI’s Center for Energy and Environment highlighting the key findings and recommendations in the publication.
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Episode Transcript
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Speaker 1 (00:02):
Welcome to the Regulatory Transparency Projects Fourth Branch podcast series.
All expressions of opinion are those of the speaker.
Speaker 2 (00:16):
Welcome to the Regulatory Transparency Project's Fourth Branch podcast. I'm
Sarah Bankson, Deputy Director of RTP. Today we're happy to
host two experts as they discuss a newly released report
from the Competitive Enterprise Institute modernizing the EPA of Blueprint
for Congress. Darren Bax is a director of the Center
for Energy and Environment and a Senior Fellow.
Speaker 3 (00:37):
At the Competitive Enterprise Institute.
Speaker 2 (00:39):
Dren also authored the report, and so we're very much
looking forward to hearing from him on the recommendations that
are outlined. We're also joined by Michael Buschbacher, partner at
Boyden Gray PLLC. Michael's extensive experience in challenging regulatory overreach.
He represents an array of clients with a particular focus
on energy and environmental matters. Thank you both for being
(01:00):
with us today. With that, I'll hand it over to you, Michael.
Speaker 4 (01:03):
Well, thank you very much. Darren. This is a fascinating
and really ambitious project. So why don't why don't we
just start with the kind of dust jacket version of
what the project is about and what you and CI
are trying to accomplish by putting this out.
Speaker 3 (01:22):
Yeah, so a lot of people were involved in this.
It wasn't just me, but we had a lot of
people here at CI and outside the organization providing advice
and expertise and a CEI were really focused on performing
the administrative state, that's the concern, and especially the out
(01:42):
of control administrative state. And I think if you think
about any agency you'd want to focus on particular, BP
makes a lot of sense. A majority of the costs
of all the ragatory, of all the edatory costs the
federal government from the EPA, so anywhere fifty five sixteen
(02:03):
percent come from EPA. And that's the thing is the
cost by itself doesn't really capture the full scope of
the effect that the EPA has in our lives. I mean,
the nature of the regulations that we can look at
simply from the Facto ev Mandate to the regulations like
(02:25):
the Clean Power Plan two point zero that try to
change the way we generate electricity have just huge sweeping
effects on our lives. So it's really the case we
wanted to do something for Congress to provide specific recommendations
and how to address this agency that I think has
gone beyond its mission regulates like it's the nineteen seventies
(02:46):
and not twenty twenty five and actually can kind of
like focus on what the core environmental issues without being
like an economic planning agency. And I think that's what
it's become.
Speaker 4 (03:00):
You know, you touched on one of the themes that I
picked up in the book, which is that EPA has
gotten beyond what Congress even originally intended when it passed
a lot of these kind of core environmental statues like
the Clean Air Act and the Clean Water Act. Why
do you think things have gotten to where they are?
(03:21):
I mean, it's kind of if they're going beyond where
Congress wanted them to go, sort of raises this question
of why is that and what are the what is
there that prevents that from from happening again. I think
the book has some interesting ideas about how to make
sure there are better checks going forward, But as a
as a broad matter, what are your thoughts on that?
Speaker 3 (03:39):
I think some of the statues themselves a problem. We
haven't like reauthorized the statutes forever, you know, they just
kind of exist and there's this constant review of standards.
And I mean you have a period of fifty years
or however many years. Things change over that period of time,
(04:02):
and Congress really needs to revisit the situation because the
factors of the thought process went into regulating something in
nineteen eighty, it's just not the same thing as in
twenty twenty five. And then you combine that within many
situations throughout the statute, there's no agency the statute I'm
talking about clear acts specifically may not allow consideration of
(04:25):
costs and trade offs, or if it does, it does
so in a fairly weak manner. So then you have
an agency that's continuously regulating trying to get marginal gains,
and to get the marginal gains, it's for massive costs
but very little to constrain it. And then you throw
in the fact that they can regulate greenhouse gases, which
(04:49):
I don't think Congress ever envisioned, and it's greenhouse gas
regulation I don't think was ever envisioned with a Clean
Air Act at all. And when you can regulate greenhouse gases,
you're in effect being able to regulate the entire economy.
That's why it's, you know, such a problem for the
EPA to be able to regulate greenhouse gases, and then
you combine that with like again no cost limitations as
(05:12):
much as there should be. The there's a lot of
cautioning principle type of language in the statute the Cleaner Act.
Speaker 4 (05:18):
Can you explain what what that that means?
Speaker 3 (05:20):
It's just very very risk averse, just kind of almost
we're just gonna assume something is a problem until you
prove otherwise. I me, that's very simplistic, I know, but that's.
Speaker 4 (05:31):
Kind of so it assumes the dysfunctionality that the market
won't solve from the get go, and then if the
burden is on, the burden is on those who want
to have liberty to do what they like to show
why it's okay versus the other way around.
Speaker 3 (05:47):
Well, I think as relates to what we're talking about,
you know, pollutants. It's just the idea that we're going
to assume that it actually causes health and warfare problems
unless it can be shown otherwise. And actually even more
than that, I think there was concern that the EPA
wentn't regulate initially, or was it regulating fast enough. I
(06:08):
don't think that. So the Statute. Last Clean Air Act
kind of almost forces the EPA to regulate in many
situations and doesn't really have to consider the harms of
doing so. And I think it maybe in the nineteen
seventies when we're coming out of the environment is not
exactly in great shape back then a Last compared to today,
(06:32):
I don't think that today we would say that EPA
we should be concerned about the EPA regulating or not.
I think it's pretty obvious they're more than happy to regulate.
And the truth is, so long as you give an agency,
any agency, broad and sweeping powder, they're going to continue
to use that and keep expanding their power. And that's
the big problem.
Speaker 4 (06:52):
So one of the things that you just mentioned, well
two things. One is the diminishing returns on the regulatory cost.
I think of it kind of as a tractor pull.
As you get closer to baseline levels of whatever it
is you're trying to regulate, because there's a little bit
of everything everywhere. Right as you get closer to those
baseline levels, the amount of work it takes to do
(07:12):
that increases, and this kind of pro regulatory bias. What
specific recommendations do you have we can start with maybe
the under the Clean Air Act for dialing that back
(07:32):
to something more reasonable and something that takes cost into account.
You have specific recommendations I think on National Ambient air
Quality Standards, the so called NACS, and so maybe you
can speak about that or any other ideas that you have.
Speaker 3 (07:46):
Let me so I'm NACS again. It's marginal benefits, martial
gains with huge costs. It just seems like the goal
poser costs being moved. There's as folks know, it's a
five year review process, and the agency can make the
(08:09):
standards stricter or not over that the five years, and
they determine whether or not it's appropriate. But we constantly
get this moving of the goalposts. Now there is no
cost consideration in sitting the standards. Now, that's what apparently
the law says, or that's what it's been interpreted to me.
(08:32):
I would say that it's a fallacy. I would say
that I think when you consider when the administrator, I
think there's this idea that there's some objective answer as
to how you set the standard frozone. You know it's
going to be sending parts per billion or whatever. It
might be a PM two point particular matter PM two
point five, as if there's just like an objective, scientific
(08:53):
answer to what the number should be. But risk considerations
themselves are subjective. The risk tolerance is subjective, and that
by itself is something that will change depending on who
the administrator would be, what the talents level is. But furthermore,
I think administrators are considering cost, it's just not making
(09:15):
it transparent. They might do a cost benefit analysis and
they might show the agency might show that data, but
they don't consider it. They're not allowed to. But the
reality is, in practice there are probably decisions being made
where we don't want to make those on standard more
strict because it will hurt the economy. We've seen that
with the Oboma administration and the Biden administration when it
(09:35):
came to reconsideration as opposed to the regular review process
of the reconsideration of ozone. So I think it's kind
of a fallacy to think that costs aren't be part
of it anyway. So a recommendation is we need to
consider the cost, so let's just be honest about it,
make it transparent. So as released to the cost component,
(09:55):
it's just let's just be honest and make sure that
we don't imposing unrealistic requirements on all states to be
able to be entertainment, to meet concentration levels that are
just not feasible, especially for individual states where some of
the background levels are probably already you know, high enough
(10:18):
so that you really are not much to gain. You
can't really achieve much more.
Speaker 4 (10:22):
So, you know, this is a federalist society podcast. I'm
a little slow to point this out, but if you
go and read American Trucking versus Whitman, Justice Scalia's opinion
in there, and I think this is what you're alluding to.
Darren says you can't consider costs as EPA when you're
setting these air quality standards, but then kind of leaves
(10:43):
the door open to considering other things. But not really.
It's a very strange that the two halves of that
opinion are incommensurable, and I think it has left the
agency in a position where to follow the sort of
first half of that opinion would be to destroy the
American economy completely. I mean, if you can't everything makes
(11:05):
a look. Every time you speak, you release a little
bit of GM two point five. So so the notion
that you know, you can't consider anything I think that's
just been a dysfunctionality. They've been sort of muddling through,
and it seems to be quite sensible to have a congressional.
Speaker 3 (11:22):
Solution, right. I mean, when you have like so much
like low hanging through, we're just easy to kind of
all right, you know, there's so many problems, let's just
set the standard at whatever piece it's. We're not really
trying to we're not creating much pain here. We're just
(11:42):
we're going to hanging low hanging through. There's a lot
of opportunity for improvement. So Congress says, we want you
to do it. You know, we we don't care about
maybe those trade offs early on, but we're so far
down the line where we have to start conicering these
costs and trade offs, and these decisions on the in
and air quality standards are so significant at this point
(12:05):
that it should not be up to any agency, the
PA or any agency of this type of the sweeping
decisions that have such a huge effect on our lives,
the economy, how we live our lives. And one of
the recommenations in the in the book is to have
just to say great job, e p A well done. Now,
(12:29):
Congress can take it from here, and states can take
it from here. And that really is really kind of
the ideal solution when it comes Tonact is just to
simply say, okay, e p A, you make sure there's
no backsliding. Maybe we codify the standards in the law.
(12:51):
And at that point, e PA, you're kind of that's
your role. But really except to the states now to
decide for themselves, considering their own interests, but not it
makes sense to have a stricter standard than the standards
that the floor that the federal government has set.
Speaker 4 (13:12):
So the one thing that's interesting to me is the
difference between the next program and Title four of the
Cleaner Act. Title four is the has there not the
Greenhouse guest has the acid rain program, and no one
ever talks about acid rain anymore. And I think the
reason for that is that that program worked pretty well
(13:34):
and that kind of seems to have just sort of
run its course. And that's a cap and trade system
that sets specific goals. Is that one of the kind
of options that you think would be a better approach
for setting you know, or we're looking at ambient air
quality when you're talking about particulate matter or ozone or
(13:56):
things like that.
Speaker 3 (13:57):
I honestly I haven't thought about that, but I mean
set that we set the goals. I would say that
isn't the are the standards themselves the goals in some ways,
But the problem is once we have the goal, five
years later, we've got another goal, even though most of
the counties of the country haven't met the original goal,
and even you know, just like it's like, can we
at least let this the previous standard be implemented and
(14:21):
let people actually try to achieve that. But there's there's
no there's no end point, and there needs to be
an end point the goal. I mean, I think by
codifying some of the standards or we're just saying good job,
you know, is to say that we've reached earning goals,
we're done. Now let the states handle it. Or another alternative,
(14:42):
as possible, if you really want you pay involved, is
to have them play more of a Okay, they can
review it, but let Congress be the one that ultimately
makes a final decision.
Speaker 4 (14:53):
Whether or not. It's kind of a Reigns Act RMS
Act for Title one of the Clean Air Act.
Speaker 3 (15:01):
YEP, that's I think that's exactly what it is. It's
just an alternative. It's I prefer first option door number
one over door number two. I know that door one
and door two are going to be tough. There is snacks,
There are nacts performed bills out there, and they don't
(15:26):
do these things, but they so they kind of keep
EPAY involved. But some of the things they do are
to extend the review period for five years to ten
years to have some consideration of the averse effects of
the setting the standards. But I'd like to see them
be stronger these provisions. I don't know that just going
(15:46):
to five to ten years is really It's fine, but
it's not really the ultimate solution. I really need to
properly consider the averse effects from setting the standards. Need
to be realistic on recognizing the kind of the background
levels and what is actually controllable and what can be done.
You to have feasible kind of technology and not trying
(16:09):
to impose on realistic technological requirements. I think we do
that at least it minimizes the problem.
Speaker 4 (16:16):
So one area that technology forcing stuff comes up is
in Title two. Title two is the mobile source part
of the Clean Air Act, and it's one of the
quirkiest things in that law. Because of that's because cars
move around, it really limits state authority to do anything
(16:38):
related to new auto emission regulation. This is in section
two oh nine of the clean Er Act. But as
you point out in the book, there's one pretty huge
exception to that, and that is California alone and among
the states can get a so called waiver of Clean
Air Act preemption that allows them to impose their own standards,
(16:59):
which they've used to literally ban internal combustion vehicle cars
within the next decade, something that Congress is actually considering
right now about whether to use the Congressional Review Act
to repeal and they those programs don't just affect California.
Of course, every other state in the Union. Under actually,
(17:22):
bizarrely section one seventy seven, which is in the Stationary
Source National Air Quality Standards part of the Clean Air Act,
every other state can adopt it. So what are your
recommendations for changing this part of the Clean Air Act?
Speaker 3 (17:40):
You know, a big theme of the book is kind
of respecting states and their ability to kind of address issues.
We talked about that with just an Acts issue just
now and then the Clean Water Act. A lot of
these statues kind of stress the importance for states be involved.
But I do think that there's something different here when
it comes to do the letter vehicles, uh, truly interstate market,
(18:05):
it's not feasible kind of have a bunch of states
setting different emission standards. Now, California gus the special kind
of waiver unlike other states under Section two nine because
they had some pretty unique air quality issues.
Speaker 4 (18:23):
And I think actually if you there's a book by
John Graham at Iu that says that when the Spanish
arrived for the first time in you know, with now La,
they found it was full as mock. There were no cars.
But it's the unique weather patterns there that create.
Speaker 3 (18:44):
Weather I don't know it topography and elsewhere also. But
the problem is you, first of all, there's been all
kinds of improvements though their quality in California, just like
it has been across country dodible improvements. This is something
that's also really important to point out that it's just
(19:04):
a constant myth that we are er or somehow dirty
or something.
Speaker 4 (19:09):
Are Earth cleaner than every other country in the world.
Speaker 3 (19:12):
Yeah, I mean, it's just I think people don't recognize that.
I think that there's scare tactics out there. Also when
you see things, I know, going on a little tangenteer
on this point, but like when you see things about
greenhouse gas regulation, they'll show like a power planet will
see show smoke or pollution or whatever. And it's amazing
(19:32):
how many people think that, like greenhouse gas kind of
gas is dirty there and it makes it harder to breathe,
and it's just I think it's important for people to
understand that's not what greenhouse gases are. But back to
the waiver issue. The problem is the waivers that may
not being used for greenhouse gas emissions. There's nothing unique
(19:54):
about a car driving in California for a car driving
in Texas. The effect is going to be the same
on California. It doesn't make a difference. So even the
logic of the waiver doesn't make any sense. As really
superhouse gases now we don't in the book. I don't
think it makes sense at all anymore anyway, So the
(20:14):
book recommends to get rid of the waiver. It also
recommends getting rid of the waiver, which is actually called
an authorization for what are called the non road engines
and vehicles, so trains right it's caliform can get a
waiver on that as well. And you know, they're trying
to electrify trains. It's not just cars. They're trying to
(20:37):
kill off the you know, the train. You know a
lot of trains as well.
Speaker 4 (20:40):
So trains already are electric in the sense that they
have many of them have the most common technology, right
is diesel generation of electricity on board the actual train. Right.
Speaker 3 (20:51):
Yeah, So, I mean when I talk about non road
engines is you know, everything from lawnmowers to farm equipment
to you know, so, so our recognition is to get
rid of these waivers. There is legislation actually that centerally
introduced this year called the stop Car backed and we'll
get rid of those waivers.
Speaker 4 (21:08):
CAR refers to the California Air Resource Yeah, yeah.
Speaker 3 (21:14):
Yeah, that's good.
Speaker 4 (21:15):
So that plus the like I said, there's this effort
right now in Congress to see if they can use
the Congressional Review Act to repeal.
Speaker 3 (21:24):
And yes, and they actually should.
Speaker 4 (21:28):
But yeah, that's been that's been a project of mind
for a long time to see the you know, we've
talked about greenhouse gas emissions some it probably makes sense
to just talk directly about this. I mean there's an
important difference in the regulatory if you want to deal
(21:49):
with carbon dioxide, that's sort of different in kind, I think,
from most of the things we think of as pollutants,
and the solutions are are not local or even national.
If you're going to be reducing greenhouse gas emissions, the
only metric that matters isn't that to cross the globe? Right?
So what what should the what should EPA's role for
(22:15):
for this kind of thing be? And there are some
parts of the Cleaner Act at least is currently written
that do have some greenhouse gas emission regulation at some
level expressly, but most of it has been kind of
read into it following the Supreme Court's decision in Massachusetts
versus e PA. So what what do you think what
(22:36):
should the regulatory paradigm be big picture? And what are
the specific fixes on the Clean Air Act that you
think should happen.
Speaker 3 (22:44):
Look big picture? So the way the book is written,
first of all, we're trying to make it very accessible,
a lot of contexts so people can kind of understand
why we're recommending what we are, and also the the issues.
You know, a lot of times papers just kind of
throw out recommendations and not really explain why something's a problem.
The book really tries to explain that, and then the
(23:07):
recommendations kind of we'll start with the ideal and then
kind of work the way down. So the ideal, let
me talk about the ideal is the agency shouldn't be
regularly greenhouse gases in the in the book. In our perspective,
I don't think that the interactive self was intended for
it to be regulated. Uh. I think you can see
(23:29):
that with just just as a fit well, uh, your right,
carbon dioxide is completely different than kind of what we
would think of as the air plutes that kind of
dirty there. And I do think that if there is
greenhouse gas regulation, then Congress should speak specifically to it,
and they shouldn't provide any type of broad delegation of
(23:53):
authority to regular greenhouse gases, but to be very specific
as to what context they want the regular greenhouse gases
to work, and for Congress to be again very specific,
so that you're not just creating some type of discretion
or a lot of discression authority for the agency on
how to regulate greenhouse gases. I want Congress to make
(24:14):
these decisions. That's a lot of the book is all
about Congress. To make these choices is up to Congress
to not if things are going to have devastating effects,
potentially devastating effects in our lives and our economy, then
let Congress make those bad decisions, not unelected bureaucrats. So
that was kind of the main It's kind of starts
(24:35):
like the main recommendation on greenhouse gases, but there are
other considerations as well, Like we were talking about Section
two oh two dealing with motor vehicles, and that's the
session that deal has the enagement finding and the way
(24:55):
the court interpreted.
Speaker 4 (24:57):
He briefly say, what the endangered running.
Speaker 3 (24:59):
Is is the product. So basically EPA, if they determine
that greenhouse or whatever the plutant might be. But in
this case, the greenhouse gas emissions may reasonably be anticipated
to endanger public health and welfare, then the agency shall
regulate those pollutants. That's the two to A one a
(25:25):
one language. And the reason why the endangerment finding is
so important is because that's kind of the extent of it.
The decision whether to regulate comes down to whether or
not you think it may reasonably be anticipated to pose
We may reasonably be anticipated to endanger public health or welfare.
That's a very low standard. So that gets into that
precaution principle idea I have. It also is an example
(25:46):
where in making that decision, you noticed I didn't say
anything about the agency considered whether or not it even
makes sense from a harm perspective, because it it would
regulating and actually create more harm than good. What would
it hurt? Low income communities, would hurt drive up prices?
Would you know? So that was something in matterressorvis EPA case.
(26:08):
You know, the agency did not want to regulate greenhouse
gases back in the day, and it ultimately the core
kind of made it a test like you have to
go through this engagement analysis and if you find a
dangerous public health welfare, then you have to regulate the
greenhouse gases. If you don't think, you have to explain why.
So kind of a big recommendation is Look, I think
(26:32):
whenever an agency, any agency, but especially EPA, it's deciding
whether or not regulation makes sense. Of course, they should
consider the science and have the best available science to
inform them. But we don't live, we don't make these
decisions in a vacuum, These decisions about whether to regulate
(26:53):
affect so many other aspects of our lives.
Speaker 4 (26:56):
Like this is a distinction Roger Pilke has made pretty effectively,
I think where he is said, it's very important to
understand the distinction about between what science can tell you,
which is descriptive, and the actual costs and benefit of
doing something with the policy decision. So science gives you information,
(27:17):
but it doesn't tell you. You know, science can't tell
you that the optimal level of something is x or y,
because you have to decide the comparative value of different
costs and benefits as a policy matter. Well, sometimes gets
like I think about COVID, you know that there were
a lot of things that we lived through where is
like there was no way this was cost justified, but
(27:38):
we were told, you know, follow the science and things
like that. Seems to me that there's a bigger picture
category error, both with policy makers and I think with
many members of the Probably.
Speaker 3 (27:52):
Yeah, this is an issue very close to my heart
and the heart of some of us here at CI.
I've written about for a while is what I sort
of conflating of science and policy is that kind of
trying to make a pot There's an effort trying to
make policy choices look as if there's some type of
(28:13):
pretend as if there's an objective or an objective scientific
answer to a particular policy question, as if it's science,
or if you don't agree with particular policy choice, it
means you don't agree with the science. No, the science
answers the science and answers the objective questions, and then
that's all it does, and you shouldn't go beyond that.
(28:35):
And the policy choices are that the policy makers need
to use the science to inform them, and it's up
to them to make choices regarding how to best address
whatever issue might be taking into account the science. Now,
I will say in the book, dot's talk a little
bit about different Our first chapter is actually about science,
and it.
Speaker 4 (28:55):
Says not a little bit. It's a long chapter and
it's recommendations on how.
Speaker 3 (29:00):
Improve I will say that one of the record wealth
is important is that science. So there's a science Advisory
Board at the EPA. There's a something called the KASE
Act which deals with clean air. Clean Air Science Advisory
Committee SASH tarly required. But during the there are just
times in these advisory boards get into issues that have
(29:22):
absolutely nothing to do with science. Like when I remember
I don't know if it was SAB or a case act.
You know, it wouldn't be a case would have been
SAB where they're writing about things regarding with the wades,
the United States issue and no Clean Water Act. And
I remember this where they are basically at what I
would say almost making legal arguments, certainly policy arguments, and
I'm like, you know, you're not the legal advisory board,
(29:43):
You're the science Advisory Board. And it's just this stay
in your lane, figure out the science. There's plenty of
plenty for you to do there, and it's just important.
And the reason why this is an even bigger shooting
even this book is that for folks that would like
to see I may not agree with certain policy choices
as relates to climate issues. If you disagree on certain
(30:05):
climate policy choices, you're then again labeled as a denier
or whatever other name, bad name they want to call
you because you don't agree with their policy are their
ideology and that that doesn't lead to constructive dialogue. Are
(30:27):
good solutions to problems? Yeah?
Speaker 4 (30:31):
I think that that's sort of a stultifying effect. I mean,
it's supposed to the other thing is you know, the
politicization of science and scientific research. This is something I
think that the science chapter has a lot of good
recommendations on, including you know, meta analyzes, looking at the
(30:52):
scientific research that you're using and seeing if if you
look at it at stuff over time, if you're finding
what's called key value doping, where the P values is
you know, whether something a correlation is statistically significant in
other words, where there's a real connection there, or or
whether it's just kind of random chance. And you know,
(31:14):
researchers have all kinds of ways that they can dope
or fudge the numbers a little bit to make P
values seem significant. And if you've got that, then on
a meta analysis, things that should be normally distributed, like
a bell curve, end up having this kind of funny
shaped bimodal distribution to you know, bring in the stifle
(31:36):
language here what you know, if you want to expand
on some of the ideas about that or the other
kind of meta analysis that you recommend in the And
then Marlowe, who wrote that chapter, recommended in that opening
part of the book that to me is some of
the most interesting and most important because even if you
get the distinction right between science and policy. If the
(31:57):
science is skewed by political considerations or just by bad
quality control, that's really destructive to these endeavors.
Speaker 3 (32:06):
There are ways and where they kind of identifies some
ideas on how you can try to identify where maybe
some things are a little askew when it comes to
you're finding results that you really shouldn't find or maybe
should give pause. I think that the big issue here
is a bigger picture is there is simply a reproducibility
(32:32):
problem with science, replication problems, pure review.
Speaker 4 (32:37):
Which is interested whether you can run the same study
again and yet results right right.
Speaker 3 (32:45):
There is just a lot of cherry picking goes on.
Speaker 4 (32:49):
Do you have any particular good examples of where this
skewed the process and led to some absurd results?
Speaker 3 (32:56):
Well, I you know, I'll say that in the there
are a lot of studies as released in particular Matter
where they're just agency just doesn't seem to want to
pay attention to these other studies. And the PM two
point five stuff is a big issue, is a big
focus in the chapter. The PM two point five is
(33:16):
five particular matter and it is kind of a really
right out there is the big pollutant that the EPA
focuses on and spends a lot of money on itself,
and really they're the big funder of the PM two
poenty five research. The one concern is you've got them
being the big funder of all the research that they
(33:37):
then use then justify the regulations, and you're not getting
kind of this other side, and to the extent that
they they do, we're not always seeing them kind of
recognize that other research.
Speaker 4 (33:51):
Now.
Speaker 3 (33:51):
One of the issues also is just the lack of
transparency for the studies that are are used and disseminated
by the agency. And it's important for people to be
able to access to these underlying data models to get
an idea of whether or not there's the legitimate about
(34:13):
the legitimacy of the studies that are being used. I
think that's President Obama and I think two thousand and
nine eight maybe it doesn't. UH issued a scientific memorandum
and big theme was, you know the importance of having
faith in the science and integrity of science. Well, you
can't have faith in the science unless people can actually
(34:36):
review how you got to your decisions. Too much of
the EPA science and a lot of the work that
they do is kind of a trust us mentality. Trust us,
you know, we know, we don't trust you. That's kind
of the nature of our system of government. We don't
simply just trust people blindly and without question. You're implementing
(34:58):
the laws, and it's important for people to be able
to figure out whether are not your emploment of many
of them consistent with what Congress intended, but also in
a way that it actually reflects the best available.
Speaker 4 (35:10):
Science with I want to make sure we cover some
stuff about water too. That's another big part of the book.
And Clean Water Act comes a little bit after the
Clean Air Act, and one of my friends likes to
joke that you can definitely tell that Congressional staffers were
smoking a fair bit of dope when they wrote the
(35:32):
Clean Air Act, but then had moved on to harder
drugs as the seventies went on and they wrote the
Clean Water Act. Clean Water Act has some crazy stuff
in it, including you can join as a citizen to
as a co prosecutor in any criminal Clean Water Act
endeavor as a matter of right. I don't know if
anyone's ever tried it. I haven't ever looked, but that's
(35:55):
just one kind of funky thing about it. And it's
got pollutants include listed pollutes include things like sunlight and
anything that you know, you put in the water, even
if you just took it out of the water. So
what are some four ideas that you have for water?
And you know, conversely, though it seems like water is
one of the area unlike air, we do have some
(36:15):
real water quality issues. I wouldn't want to go, you know,
over the Potomac and drink the water out of that.
Speaker 3 (36:22):
No, you're not drink I'm going to get there, but
down there and have a gulp every day. Yeah, I mean,
there are some pretty specific issues with Clean Water Act
that are brought up, and I hate that are actually well,
let's start with the first big issue, and that is
(36:42):
what water's even regulated in a Clean Water Act. And
that's where you get to the question of waters in
the United States, the real statutory terms navigable waters, but
and further, it's meant to be.
Speaker 4 (36:56):
Waters is defined as waters of the United States.
Speaker 3 (36:59):
And territorial seed the definitions and of course it's taken
the EPA and the Army Corps who Army Corps also
deals with this Clean Water Act issues in implementing the
law continuously try to expand what the meeting is and
what waters are regulated, and they've kind a shot down
(37:20):
multiple times by the Supreme Court for their overreach. And
recently in Supreme Court case called Sacket versus EPA, which
is got of the second sack Of case there was
a first one, the Supreme Court finally provides some clarity
and they also kind of blessed on what waters are covered.
And I don't know that it's how critical it is
(37:43):
for Congress to try to get into the Clean Water
Act and define waters the United States at this point
given the Supreme Court opinions I think are favorable. But
we certainly do talk about how they could do it,
and it really is just trying to focus on not
dealing with non navigal waters that it really should be.
(38:04):
When we're talking about wetlands, it should be exactly what
the kind of court has said. You know you it's
a type of a wetland. Only a wetland by itself
is not what a water that should be water that
regulated on its own. The only reason why wetland would
be covered is because it's you can't tell the difference
(38:25):
between where you know the traditional navigal water starts and ends.
Speaker 4 (38:32):
You've got a marsh that it butts up to.
Speaker 3 (38:35):
And literally or something. And I think the key point
is that you literally can't tell by the naked eye,
like I can't tell. So it's just that's why it's included.
It's not because we a separate category of water is
to protect, so we would the idea is to kind
of focus on, you know, nutrition, navigal waters and waters
(38:57):
that are kind of connected to those waters, things that
are now avocable as well. And then if we're dealing
with the wetlands that need to be adjacent, not just
adjacent which is what there said, but actually connected. You
can't tell the difference between.
Speaker 4 (39:13):
The surface water connection on the phrases used.
Speaker 3 (39:16):
And also, you know the Supreme Court has said, and
this even the bid administration rule that amended, it's what
is role' woking into. I mean, you're dealing with relatively
permanent waters. And it's important also to make sure that
the Court has said and that means lake streams whatever,
(39:39):
like what people actually think of as waters. That the
problem with with the Whattice issue is there effort to
try to for property ors. We just had no idea
that something would even be regulated there.
Speaker 4 (39:53):
The sactic case, right, it was a family that bought
a plot of land and they had like a little
bit of low lying property that occasionally, not even every year,
every few years would get a little bit flooded and wet,
and you'd have a standing very like a very large
puddle basically in the backyard. And EPA said that this
(40:17):
was covered by the Clean Water Act as a water
of the United States.
Speaker 3 (40:22):
I mean, it's because the property is next to this
drain that's across the street or something, and then that's
connected to this other thing that then you go here
and get to that, and then that connects to a
lake or whatever, and their forcing jacent water. It's just like, okay,
come on.
Speaker 4 (40:38):
It's a little bit like defining the toe as the
hip because the toebone is connected to the kneebone actually exactly.
Speaker 3 (40:44):
So you know, I think enough of that, you know,
I just should point out the Supreme Snissly Legislator recommendation.
But it is important for people to know that one
of the major kind of legal principles that have been
used for a while on the WAE issue was the
(41:04):
significant nexus test for whether or not waters are regulated
is whether or not there's a significant nexus to put
this water in that other water. And if unanimously got
shut down by Supreme Court anyway, the I would say.
Speaker 4 (41:22):
That Anthony Kennedy, uh write Kennedy style jurisprudence. Right.
Speaker 3 (41:27):
So I think you think that there's a lot of
there's some important recommendations in the Water Chapter as well
regarding what are called Session four or four like retroactive vetos,
a Session four or four permits or preemptive vetos of
these permits. In other words, the property or might get
(41:49):
a duly issued permit from the armor core of Engineers
and then kind of after the fact, e PA comes
in and uses veto power into four or four C
to say no, you can't, I.
Speaker 4 (42:00):
Can't do that. Actually, it turns out permission was never
rented properly in the.
Speaker 3 (42:04):
Right, so that you know, like that shouldn't happen. There's
some language we just say.
Speaker 4 (42:08):
Things like a basic good government order of operations kind
of problem.
Speaker 3 (42:12):
Yeah, and then we think that there's I should point
out that I don't know if I'm going on a
tangent here maybe, but Session four four dredge of phil
permits and really there that's really just dirt moving activities.
They're not when we do with dreasure FILD, we're not
(42:33):
really talking about pollution the way people normally would think
about pollution.
Speaker 4 (42:38):
It's not a source of right from a factory where
you've got, you know, disgusting chemicals being put in the water.
Speaker 3 (42:47):
Now, what you're having is a couple trying to build
a house or farmers trying to plows land, and so
we're not dealing with anybody trying to And what happens
is a lot of property owners are not aware that
they might even need the permit, or wouldn't or even
though they might be aware, the Clean Water Actor would
have no reason to believe that they need to actually
(43:08):
get the the permit because it makes no sense because
you look at something that is actually dry land almost
every day of the year, but it might hold water
for a few days a year, and then therefore it's
a a FM or water that somehow is covered under
the Clean Water Act. That again, I don't think that
will be I think moving forward, I don't think the
(43:28):
EPN core will go with that anymore, but you never know.
So that's one reason why it's kind of the as
a strategic reason, like, Okay, the court has given some
good there's a good president here, so you know, is
it worth going into the legislation trying to change Clean
Water Act and opening it up even for mischief or
(43:49):
right or you know, there's also the other argument where
you recognize EPN core exactly haven't been They've always been
trying to expand their power as much as possible, So
maybe they'll never really properly interpret sack a case. Therefore
we may need to have a legislative solution. So yeah,
it's great. I think the Water Act chapter ran by
(44:09):
Tony Francois is a great chapter. I'm very easy to read, too.
Speaker 4 (44:15):
Excellent the running here towards the end of our time,
I think. But I do have a couple more quick
questions for you. One one is about citizen suits and
for people who don't do environmental law. I find that
this concept is very surprising because you know, we don't
(44:36):
have citizen suits for like traffic enforcement. You know, we don't.
Say this is an example I'm borrowing from Professor Michael Graba.
He says, imagine like you have you can just sit
around and see someone run a red light. You can
go and you can you know, just bring an action
against them because you saw it happen or that you
just found it happen on on like you know, some
(44:58):
registry of the photos of who ran red light. That's
basically how citizen suits work under the Cleaner Act, clean
Water Act, many of the other you know, less prominent
environmental statutes, and you have some ideas for reforming them.
I tend to think that they have some serious constitutional
problems just because you wouldn't give you wouldn't let people
(45:20):
bring criminal prosecutions or civil actions or penalties against folks
in other contexts. But you know, maybe if you want
to talk about the recommendations you have and what you
think could be done to reform the citizens suits situation.
Speaker 3 (45:41):
Yeah, So these these laws, these provisions, I think there's
over I think there are over twenty environmental statutes actually
kind of a private attorney's general situation. And this isn't
actually in the Chacker, But there are situations, no matter
what people say, because I've seen them where where there's
(46:05):
kind of a sue and settle situation and the agency
will agree to not just it's not just that the
agency is being sued to meet a specific deadline or
to do something they're required. But also i've seen agreements
where you're.
Speaker 4 (46:21):
Talking about citizens suits where you can sue the agents.
There are two types, right, There's one that's enforcement, and
then I think what you're talking about is where there's
a mandatory duty, often without sufficient funding or resources for
the agency to do it, and then you can sue
as an NGO and make them do it and get
your attorney fees thrown in.
Speaker 3 (46:41):
Yeah, and so you know, sometimes people call those deadline suits.
But the the point is that sometimes there's discretionary decisions
kind of and they into these agreements that have altered
(47:02):
certain on the nature of the rules. Now, even when
they don't, the problem is that if you have the
deadline suit, sometimes they can be very rushed and then
you avoid some of the procedural protections that exists in
the promulgation of a rule. So some of the recommendations
this isn't supervision. Was we discussed specifically in the water
(47:25):
chap or could even discuss elsewhere as well, is just
something we tend to do. But I think the key
point is kind of recognizing that the planet, for cell
should have some type of injury.
Speaker 4 (47:39):
In law and the Prime Court Darren has said that
an aesthetic injury is sufficient, which has led Justice Thomas
to ask if that doesn't mean basically everything. For instance,
the Supreme Court has said that getting an accurate credit
report is not something that people have standing on its
own to sue about, and Justice Thomas is pointed out,
(48:00):
well what if they claimed to aesthetic injury from that?
Speaker 3 (48:03):
Well, you know, the I've been asked a lot like
why is it so easy, at least from our perspective,
from myctive, easy to get standing in the environmental context,
but it's just seems to be more difficult for like
some business a trade have a case.
Speaker 4 (48:21):
At the Supreme Court this month about whether California's electric
vehicle mandate is something that fuel manufacturers and producers can
sue about. Well, the obvious that they're injured by that,
but it's it's a little bit, But are they.
Speaker 3 (48:39):
More injured than me not knowing that the you know, whatever,
Wolf and the Grand Canyon or wherever. Some park that
I'll probably never visit but might want to one day
may not be around or won't be as many. Unfortunately,
those types of injuries abstract speculative of injuries tend to
seem to work comes the environmental context, but something that
(49:03):
to me is far more direct, like and what you
just said doesn't always seem to work, so that that's
a real problem. I think a lot of the challenges
also deal with like like paperwork violations and things like that.
It's just the supervision at least in the clean water
op context, which makes no sense. So there's there's more
details on as well in the book on trying to
(49:25):
fix these problems, because.
Speaker 4 (49:29):
Yeah, there they're a dysfunctionality.
Speaker 3 (49:32):
It sounds like I think the core of the EPA
do plenty of enough to create havoc.
Speaker 4 (49:38):
Uh. Yeah, as someone who's as someone who's represented them before,
I can say that, yes, that is the case.
Speaker 3 (49:46):
All right.
Speaker 4 (49:46):
So you also have some recommendations about the ira and
I want to make sure you get a chance to
talk about those. The inflation of the so called Inflation
Reduction Act and and ways in which that should be changed.
Speaker 3 (50:02):
Yeah, this would be really quick. Get rid of those
ira A provisions that deal with anything to do with energy,
pretty much all the put air quotes, green subsidies. Now
the e p A has Now this is an ep
A book, so it has several different IRA programs as well,
(50:25):
and get rid of every one of them, many of
the provisions and the IRA dealing with I with the
e p A try they try to get cute by
trying to expressly authorize the regulation of greenhouse gas by
for every provision. Then it will say like spend money
for X, Y and z, and then they'll say greenhouse
(50:45):
gases are the air pollutants, blah blah blah blah whatever.
Speaker 4 (50:51):
There are a couple of best ones that they try
to I think.
Speaker 3 (50:54):
You know, look at those are spending programs, not by
itself giving orderator authority, although it does argulation provide help
for anybody way.
Speaker 4 (51:05):
So one interesting thing that does come up is, sure
you're where. There are a number of state attempts to
basically expropriate the American energy industry by trying to retroactively
tax them for carbon dioxide emissions or to say that
they somehow deceived the public and that we, you know,
(51:26):
we wouldn't have filled up our cars if we had
known just how terrible things were. And one of the
core arguments against that is that, look, the Clean Air
Act takes the field here and that's the whole regulatory
regime for the entire country, and so you can't come
in over the top of these other things and say
we're regulating this in this other way or retroactively or whatever.
(51:46):
There is I think some concern that if you're undoing
those kind of provisions you might be and I think
this is a misplaced concern, but I do think it
requires being clear if you're a lawmaker, or being clear
if you're a regulator, that what's happening here is not
opening the door to states to go even further and
(52:07):
do crazy climate stuff on their own.
Speaker 3 (52:11):
Yeah. I agree. I mean, that's that's a good point,
and I think that's something that the scent of that's
an issue needs to be thought through. I also the
argument that somehow we wouldn't filled up for gas tank,
or we're filling up her gas tank right now and
we will continue to. I mean, just the idea of
(52:33):
these retroactive laws should be concerning to anybody, for any industry,
and I'm sure that Federal Society is doing or has
done events on these laws, and we certainly need to
they're concerning very concerning. There's there's a lot of you know,
the President Trump justish had an exective order on some
(52:54):
of the state overreach. I'm not sure what that will
lead to ultimately, but that's something that's certainly on the
the radar screen of the administration. Yeah. So, I mean
every everywhere you look at it on the climate stuff,
it's state, federal, global, it's regulation, it's spending, it's you know,
(53:17):
think about an appliance issue, it's federal regulations to try
to restrict the appliances. It's spending money, giving into states
or local communities to establish building codes to make more
difficult or to have building codes that you won't be
able to connect to natural gas appliances. It's just the
same things. As you know better.
Speaker 4 (53:37):
The Ninth Circuit said, you can't do right.
Speaker 3 (53:40):
Right so with the cars, as you know better than
I do. Every every multiple agencies at federal level. And
I was just stress because we're talking about IRA. I
believe that, uh, certain politicians recognize that people really don't
care about spending very much, and that if you want
to achieve your objectives, you just spend and you can
(54:03):
use that to achieve kind of very radical changes in
the country. And then you know, I think in the
past that you know, you would say, well, we can't
get the spending through, so we'll use the regulatory process
to try to achieve it. I think things almost a
flipped where we're going to spend and regulations will almost
be our backup plan.
Speaker 4 (54:21):
So I think that's I think that is an interesting
and I think you're correct that that is. And that's
one that sadly when the few areas where Congress does
seem to be able to come together and actually do something,
but you can't throw money at problems, is not This
is not a substitute for smart standards and actual you
know law. Well, we're here, you know, I think we're
(54:44):
right at the end of our time to close out
why why don't what are the next steps for the project?
And where can people find more information on it?
Speaker 3 (54:53):
Well, you think you can find more information at CEI
dot org. There's kind of a page for the project act.
And also you can get a copy of the book.
And you know we have hard copies too.
Speaker 4 (55:06):
Oh I got to get one. I've just got.
Speaker 3 (55:09):
And so when we're going to be working on this
issue for for a long time, it's not just release
the book and then go home. It's release the book
and this is just the start of the process. We look,
we want to turn the ideas and there are many
specific ideas and it would be impossible to really to
go through it in a podcast and actually have people
listen to it. So we're going to try to. We're
(55:32):
trying to turn these ideas into legislation, and we we
consider this to be a big fight and we hope
that people would join us in this fight to modernize
and reform v p A.
Speaker 4 (55:44):
Well, thank you, Darren, and and thank you to the
Federalist Society for hosting this podcast. And yeah, I hope
you all get the book in hard copy or PDF
and and read it because it's a very interesting, very
interesting piece of of work and analysis.
Speaker 2 (56:03):
Thanks again, well, thank you both for sharing your time
and expertise with us today. And to our listeners, thank
you for tuning in.
Speaker 1 (56:16):
On behalf of the Federal Society's Regulatory Transparency Project. Thanks
for tuning in to the Fourth Branch podcast To catch
every new episode when it's released. You can subscribe on
Apple Podcasts, Google Play, and Speaker for lays from our TP.
Please visit our website at regproject dot org. That's our
egproject dot org.
Speaker 3 (56:44):
This has been a FEDSC audio production
Welcome to the Regulatory Transparency Projects Fourth Branch podcast series.
All expressions of opinion are those of the speaker.
Speaker 2 (00:16):
Welcome to the Regulatory Transparency Project's Fourth Branch podcast. I'm
Sarah Bankson, Deputy Director of RTP. Today we're happy to
host two experts as they discuss a newly released report
from the Competitive Enterprise Institute modernizing the EPA of Blueprint
for Congress. Darren Bax is a director of the Center
for Energy and Environment and a Senior Fellow.
Speaker 3 (00:37):
At the Competitive Enterprise Institute.
Speaker 2 (00:39):
Dren also authored the report, and so we're very much
looking forward to hearing from him on the recommendations that
are outlined. We're also joined by Michael Buschbacher, partner at
Boyden Gray PLLC. Michael's extensive experience in challenging regulatory overreach.
He represents an array of clients with a particular focus
on energy and environmental matters. Thank you both for being
(01:00):
with us today. With that, I'll hand it over to you, Michael.
Speaker 4 (01:03):
Well, thank you very much. Darren. This is a fascinating
and really ambitious project. So why don't why don't we
just start with the kind of dust jacket version of
what the project is about and what you and CI
are trying to accomplish by putting this out.
Speaker 3 (01:22):
Yeah, so a lot of people were involved in this.
It wasn't just me, but we had a lot of
people here at CI and outside the organization providing advice
and expertise and a CEI were really focused on performing
the administrative state, that's the concern, and especially the out
(01:42):
of control administrative state. And I think if you think
about any agency you'd want to focus on particular, BP
makes a lot of sense. A majority of the costs
of all the ragatory, of all the edatory costs the
federal government from the EPA, so anywhere fifty five sixteen
(02:03):
percent come from EPA. And that's the thing is the
cost by itself doesn't really capture the full scope of
the effect that the EPA has in our lives. I mean,
the nature of the regulations that we can look at
simply from the Facto ev Mandate to the regulations like
(02:25):
the Clean Power Plan two point zero that try to
change the way we generate electricity have just huge sweeping
effects on our lives. So it's really the case we
wanted to do something for Congress to provide specific recommendations
and how to address this agency that I think has
gone beyond its mission regulates like it's the nineteen seventies
(02:46):
and not twenty twenty five and actually can kind of
like focus on what the core environmental issues without being
like an economic planning agency. And I think that's what
it's become.
Speaker 4 (03:00):
You know, you touched on one of the themes that I
picked up in the book, which is that EPA has
gotten beyond what Congress even originally intended when it passed
a lot of these kind of core environmental statues like
the Clean Air Act and the Clean Water Act. Why
do you think things have gotten to where they are?
(03:21):
I mean, it's kind of if they're going beyond where
Congress wanted them to go, sort of raises this question
of why is that and what are the what is
there that prevents that from from happening again. I think
the book has some interesting ideas about how to make
sure there are better checks going forward, But as a
as a broad matter, what are your thoughts on that?
Speaker 3 (03:39):
I think some of the statues themselves a problem. We
haven't like reauthorized the statutes forever, you know, they just
kind of exist and there's this constant review of standards.
And I mean you have a period of fifty years
or however many years. Things change over that period of time,
(04:02):
and Congress really needs to revisit the situation because the
factors of the thought process went into regulating something in
nineteen eighty, it's just not the same thing as in
twenty twenty five. And then you combine that within many
situations throughout the statute, there's no agency the statute I'm
talking about clear acts specifically may not allow consideration of
(04:25):
costs and trade offs, or if it does, it does
so in a fairly weak manner. So then you have
an agency that's continuously regulating trying to get marginal gains,
and to get the marginal gains, it's for massive costs
but very little to constrain it. And then you throw
in the fact that they can regulate greenhouse gases, which
(04:49):
I don't think Congress ever envisioned, and it's greenhouse gas
regulation I don't think was ever envisioned with a Clean
Air Act at all. And when you can regulate greenhouse gases,
you're in effect being able to regulate the entire economy.
That's why it's, you know, such a problem for the
EPA to be able to regulate greenhouse gases, and then
you combine that with like again no cost limitations as
(05:12):
much as there should be. The there's a lot of
cautioning principle type of language in the statute the Cleaner Act.
Speaker 4 (05:18):
Can you explain what what that that means?
Speaker 3 (05:20):
It's just very very risk averse, just kind of almost
we're just gonna assume something is a problem until you
prove otherwise. I me, that's very simplistic, I know, but that's.
Speaker 4 (05:31):
Kind of so it assumes the dysfunctionality that the market
won't solve from the get go, and then if the
burden is on, the burden is on those who want
to have liberty to do what they like to show
why it's okay versus the other way around.
Speaker 3 (05:47):
Well, I think as relates to what we're talking about,
you know, pollutants. It's just the idea that we're going
to assume that it actually causes health and warfare problems
unless it can be shown otherwise. And actually even more
than that, I think there was concern that the EPA
wentn't regulate initially, or was it regulating fast enough. I
(06:08):
don't think that. So the Statute. Last Clean Air Act
kind of almost forces the EPA to regulate in many
situations and doesn't really have to consider the harms of
doing so. And I think it maybe in the nineteen
seventies when we're coming out of the environment is not
exactly in great shape back then a Last compared to today,
(06:32):
I don't think that today we would say that EPA
we should be concerned about the EPA regulating or not.
I think it's pretty obvious they're more than happy to regulate.
And the truth is, so long as you give an agency,
any agency, broad and sweeping powder, they're going to continue
to use that and keep expanding their power. And that's
the big problem.
Speaker 4 (06:52):
So one of the things that you just mentioned, well
two things. One is the diminishing returns on the regulatory cost.
I think of it kind of as a tractor pull.
As you get closer to baseline levels of whatever it
is you're trying to regulate, because there's a little bit
of everything everywhere. Right as you get closer to those
baseline levels, the amount of work it takes to do
(07:12):
that increases, and this kind of pro regulatory bias. What
specific recommendations do you have we can start with maybe
the under the Clean Air Act for dialing that back
(07:32):
to something more reasonable and something that takes cost into account.
You have specific recommendations I think on National Ambient air
Quality Standards, the so called NACS, and so maybe you
can speak about that or any other ideas that you have.
Speaker 3 (07:46):
Let me so I'm NACS again. It's marginal benefits, martial
gains with huge costs. It just seems like the goal
poser costs being moved. There's as folks know, it's a
five year review process, and the agency can make the
(08:09):
standards stricter or not over that the five years, and
they determine whether or not it's appropriate. But we constantly
get this moving of the goalposts. Now there is no
cost consideration in sitting the standards. Now, that's what apparently
the law says, or that's what it's been interpreted to me.
(08:32):
I would say that it's a fallacy. I would say
that I think when you consider when the administrator, I
think there's this idea that there's some objective answer as
to how you set the standard frozone. You know it's
going to be sending parts per billion or whatever. It
might be a PM two point particular matter PM two
point five, as if there's just like an objective, scientific
(08:53):
answer to what the number should be. But risk considerations
themselves are subjective. The risk tolerance is subjective, and that
by itself is something that will change depending on who
the administrator would be, what the talents level is. But furthermore,
I think administrators are considering cost, it's just not making
(09:15):
it transparent. They might do a cost benefit analysis and
they might show the agency might show that data, but
they don't consider it. They're not allowed to. But the
reality is, in practice there are probably decisions being made
where we don't want to make those on standard more
strict because it will hurt the economy. We've seen that
with the Oboma administration and the Biden administration when it
(09:35):
came to reconsideration as opposed to the regular review process
of the reconsideration of ozone. So I think it's kind
of a fallacy to think that costs aren't be part
of it anyway. So a recommendation is we need to
consider the cost, so let's just be honest about it,
make it transparent. So as released to the cost component,
(09:55):
it's just let's just be honest and make sure that
we don't imposing unrealistic requirements on all states to be
able to be entertainment, to meet concentration levels that are
just not feasible, especially for individual states where some of
the background levels are probably already you know, high enough
(10:18):
so that you really are not much to gain. You
can't really achieve much more.
Speaker 4 (10:22):
So, you know, this is a federalist society podcast. I'm
a little slow to point this out, but if you
go and read American Trucking versus Whitman, Justice Scalia's opinion
in there, and I think this is what you're alluding to.
Darren says you can't consider costs as EPA when you're
setting these air quality standards, but then kind of leaves
(10:43):
the door open to considering other things. But not really.
It's a very strange that the two halves of that
opinion are incommensurable, and I think it has left the
agency in a position where to follow the sort of
first half of that opinion would be to destroy the
American economy completely. I mean, if you can't everything makes
(11:05):
a look. Every time you speak, you release a little
bit of GM two point five. So so the notion
that you know, you can't consider anything I think that's
just been a dysfunctionality. They've been sort of muddling through,
and it seems to be quite sensible to have a congressional.
Speaker 3 (11:22):
Solution, right. I mean, when you have like so much
like low hanging through, we're just easy to kind of
all right, you know, there's so many problems, let's just
set the standard at whatever piece it's. We're not really
trying to we're not creating much pain here. We're just
(11:42):
we're going to hanging low hanging through. There's a lot
of opportunity for improvement. So Congress says, we want you
to do it. You know, we we don't care about
maybe those trade offs early on, but we're so far
down the line where we have to start conicering these
costs and trade offs, and these decisions on the in
and air quality standards are so significant at this point
(12:05):
that it should not be up to any agency, the
PA or any agency of this type of the sweeping
decisions that have such a huge effect on our lives,
the economy, how we live our lives. And one of
the recommenations in the in the book is to have
just to say great job, e p A well done. Now,
(12:29):
Congress can take it from here, and states can take
it from here. And that really is really kind of
the ideal solution when it comes Tonact is just to
simply say, okay, e p A, you make sure there's
no backsliding. Maybe we codify the standards in the law.
(12:51):
And at that point, e PA, you're kind of that's
your role. But really except to the states now to
decide for themselves, considering their own interests, but not it
makes sense to have a stricter standard than the standards
that the floor that the federal government has set.
Speaker 4 (13:12):
So the one thing that's interesting to me is the
difference between the next program and Title four of the
Cleaner Act. Title four is the has there not the
Greenhouse guest has the acid rain program, and no one
ever talks about acid rain anymore. And I think the
reason for that is that that program worked pretty well
(13:34):
and that kind of seems to have just sort of
run its course. And that's a cap and trade system
that sets specific goals. Is that one of the kind
of options that you think would be a better approach
for setting you know, or we're looking at ambient air
quality when you're talking about particulate matter or ozone or
(13:56):
things like that.
Speaker 3 (13:57):
I honestly I haven't thought about that, but I mean
set that we set the goals. I would say that
isn't the are the standards themselves the goals in some ways,
But the problem is once we have the goal, five
years later, we've got another goal, even though most of
the counties of the country haven't met the original goal,
and even you know, just like it's like, can we
at least let this the previous standard be implemented and
(14:21):
let people actually try to achieve that. But there's there's
no there's no end point, and there needs to be
an end point the goal. I mean, I think by
codifying some of the standards or we're just saying good job,
you know, is to say that we've reached earning goals,
we're done. Now let the states handle it. Or another alternative,
(14:42):
as possible, if you really want you pay involved, is
to have them play more of a Okay, they can
review it, but let Congress be the one that ultimately
makes a final decision.
Speaker 4 (14:53):
Whether or not. It's kind of a Reigns Act RMS
Act for Title one of the Clean Air Act.
Speaker 3 (15:01):
YEP, that's I think that's exactly what it is. It's
just an alternative. It's I prefer first option door number
one over door number two. I know that door one
and door two are going to be tough. There is snacks,
There are nacts performed bills out there, and they don't
(15:26):
do these things, but they so they kind of keep
EPAY involved. But some of the things they do are
to extend the review period for five years to ten
years to have some consideration of the averse effects of
the setting the standards. But I'd like to see them
be stronger these provisions. I don't know that just going
(15:46):
to five to ten years is really It's fine, but
it's not really the ultimate solution. I really need to
properly consider the averse effects from setting the standards. Need
to be realistic on recognizing the kind of the background
levels and what is actually controllable and what can be done.
You to have feasible kind of technology and not trying
(16:09):
to impose on realistic technological requirements. I think we do
that at least it minimizes the problem.
Speaker 4 (16:16):
So one area that technology forcing stuff comes up is
in Title two. Title two is the mobile source part
of the Clean Air Act, and it's one of the
quirkiest things in that law. Because of that's because cars
move around, it really limits state authority to do anything
(16:38):
related to new auto emission regulation. This is in section
two oh nine of the clean Er Act. But as
you point out in the book, there's one pretty huge
exception to that, and that is California alone and among
the states can get a so called waiver of Clean
Air Act preemption that allows them to impose their own standards,
(16:59):
which they've used to literally ban internal combustion vehicle cars
within the next decade, something that Congress is actually considering
right now about whether to use the Congressional Review Act
to repeal and they those programs don't just affect California.
Of course, every other state in the Union. Under actually,
(17:22):
bizarrely section one seventy seven, which is in the Stationary
Source National Air Quality Standards part of the Clean Air Act,
every other state can adopt it. So what are your
recommendations for changing this part of the Clean Air Act?
Speaker 3 (17:40):
You know, a big theme of the book is kind
of respecting states and their ability to kind of address issues.
We talked about that with just an Acts issue just
now and then the Clean Water Act. A lot of
these statues kind of stress the importance for states be involved.
But I do think that there's something different here when
it comes to do the letter vehicles, uh, truly interstate market,
(18:05):
it's not feasible kind of have a bunch of states
setting different emission standards. Now, California gus the special kind
of waiver unlike other states under Section two nine because
they had some pretty unique air quality issues.
Speaker 4 (18:23):
And I think actually if you there's a book by
John Graham at Iu that says that when the Spanish
arrived for the first time in you know, with now La,
they found it was full as mock. There were no cars.
But it's the unique weather patterns there that create.
Speaker 3 (18:44):
Weather I don't know it topography and elsewhere also. But
the problem is you, first of all, there's been all
kinds of improvements though their quality in California, just like
it has been across country dodible improvements. This is something
that's also really important to point out that it's just
(19:04):
a constant myth that we are er or somehow dirty
or something.
Speaker 4 (19:09):
Are Earth cleaner than every other country in the world.
Speaker 3 (19:12):
Yeah, I mean, it's just I think people don't recognize that.
I think that there's scare tactics out there. Also when
you see things, I know, going on a little tangenteer
on this point, but like when you see things about
greenhouse gas regulation, they'll show like a power planet will
see show smoke or pollution or whatever. And it's amazing
(19:32):
how many people think that, like greenhouse gas kind of
gas is dirty there and it makes it harder to breathe,
and it's just I think it's important for people to
understand that's not what greenhouse gases are. But back to
the waiver issue. The problem is the waivers that may
not being used for greenhouse gas emissions. There's nothing unique
(19:54):
about a car driving in California for a car driving
in Texas. The effect is going to be the same
on California. It doesn't make a difference. So even the
logic of the waiver doesn't make any sense. As really
superhouse gases now we don't in the book. I don't
think it makes sense at all anymore anyway, So the
(20:14):
book recommends to get rid of the waiver. It also
recommends getting rid of the waiver, which is actually called
an authorization for what are called the non road engines
and vehicles, so trains right it's caliform can get a
waiver on that as well. And you know, they're trying
to electrify trains. It's not just cars. They're trying to
(20:37):
kill off the you know, the train. You know a
lot of trains as well.
Speaker 4 (20:40):
So trains already are electric in the sense that they
have many of them have the most common technology, right
is diesel generation of electricity on board the actual train. Right.
Speaker 3 (20:51):
Yeah, So, I mean when I talk about non road
engines is you know, everything from lawnmowers to farm equipment
to you know, so, so our recognition is to get
rid of these waivers. There is legislation actually that centerally
introduced this year called the stop Car backed and we'll
get rid of those waivers.
Speaker 4 (21:08):
CAR refers to the California Air Resource Yeah, yeah.
Speaker 3 (21:14):
Yeah, that's good.
Speaker 4 (21:15):
So that plus the like I said, there's this effort
right now in Congress to see if they can use
the Congressional Review Act to repeal.
Speaker 3 (21:24):
And yes, and they actually should.
Speaker 4 (21:28):
But yeah, that's been that's been a project of mind
for a long time to see the you know, we've
talked about greenhouse gas emissions some it probably makes sense
to just talk directly about this. I mean there's an
important difference in the regulatory if you want to deal
(21:49):
with carbon dioxide, that's sort of different in kind, I think,
from most of the things we think of as pollutants,
and the solutions are are not local or even national.
If you're going to be reducing greenhouse gas emissions, the
only metric that matters isn't that to cross the globe? Right?
So what what should the what should EPA's role for
(22:15):
for this kind of thing be? And there are some
parts of the Cleaner Act at least is currently written
that do have some greenhouse gas emission regulation at some
level expressly, but most of it has been kind of
read into it following the Supreme Court's decision in Massachusetts
versus e PA. So what what do you think what
(22:36):
should the regulatory paradigm be big picture? And what are
the specific fixes on the Clean Air Act that you
think should happen.
Speaker 3 (22:44):
Look big picture? So the way the book is written,
first of all, we're trying to make it very accessible,
a lot of contexts so people can kind of understand
why we're recommending what we are, and also the the issues.
You know, a lot of times papers just kind of
throw out recommendations and not really explain why something's a problem.
The book really tries to explain that, and then the
(23:07):
recommendations kind of we'll start with the ideal and then
kind of work the way down. So the ideal, let
me talk about the ideal is the agency shouldn't be
regularly greenhouse gases in the in the book. In our perspective,
I don't think that the interactive self was intended for
it to be regulated. Uh. I think you can see
(23:29):
that with just just as a fit well, uh, your right,
carbon dioxide is completely different than kind of what we
would think of as the air plutes that kind of
dirty there. And I do think that if there is
greenhouse gas regulation, then Congress should speak specifically to it,
and they shouldn't provide any type of broad delegation of
(23:53):
authority to regular greenhouse gases, but to be very specific
as to what context they want the regular greenhouse gases
to work, and for Congress to be again very specific,
so that you're not just creating some type of discretion
or a lot of discression authority for the agency on
how to regulate greenhouse gases. I want Congress to make
(24:14):
these decisions. That's a lot of the book is all
about Congress. To make these choices is up to Congress
to not if things are going to have devastating effects,
potentially devastating effects in our lives and our economy, then
let Congress make those bad decisions, not unelected bureaucrats. So
that was kind of the main It's kind of starts
(24:35):
like the main recommendation on greenhouse gases, but there are
other considerations as well, Like we were talking about Section
two oh two dealing with motor vehicles, and that's the
session that deal has the enagement finding and the way
(24:55):
the court interpreted.
Speaker 4 (24:57):
He briefly say, what the endangered running.
Speaker 3 (24:59):
Is is the product. So basically EPA, if they determine
that greenhouse or whatever the plutant might be. But in
this case, the greenhouse gas emissions may reasonably be anticipated
to endanger public health and welfare, then the agency shall
regulate those pollutants. That's the two to A one a
(25:25):
one language. And the reason why the endangerment finding is
so important is because that's kind of the extent of it.
The decision whether to regulate comes down to whether or
not you think it may reasonably be anticipated to pose
We may reasonably be anticipated to endanger public health or welfare.
That's a very low standard. So that gets into that
precaution principle idea I have. It also is an example
(25:46):
where in making that decision, you noticed I didn't say
anything about the agency considered whether or not it even
makes sense from a harm perspective, because it it would
regulating and actually create more harm than good. What would
it hurt? Low income communities, would hurt drive up prices?
Would you know? So that was something in matterressorvis EPA case.
(26:08):
You know, the agency did not want to regulate greenhouse
gases back in the day, and it ultimately the core
kind of made it a test like you have to
go through this engagement analysis and if you find a
dangerous public health welfare, then you have to regulate the
greenhouse gases. If you don't think, you have to explain why.
So kind of a big recommendation is Look, I think
(26:32):
whenever an agency, any agency, but especially EPA, it's deciding
whether or not regulation makes sense. Of course, they should
consider the science and have the best available science to
inform them. But we don't live, we don't make these
decisions in a vacuum, These decisions about whether to regulate
(26:53):
affect so many other aspects of our lives.
Speaker 4 (26:56):
Like this is a distinction Roger Pilke has made pretty effectively,
I think where he is said, it's very important to
understand the distinction about between what science can tell you,
which is descriptive, and the actual costs and benefit of
doing something with the policy decision. So science gives you information,
(27:17):
but it doesn't tell you. You know, science can't tell
you that the optimal level of something is x or y,
because you have to decide the comparative value of different
costs and benefits as a policy matter. Well, sometimes gets
like I think about COVID, you know that there were
a lot of things that we lived through where is
like there was no way this was cost justified, but
(27:38):
we were told, you know, follow the science and things
like that. Seems to me that there's a bigger picture
category error, both with policy makers and I think with
many members of the Probably.
Speaker 3 (27:52):
Yeah, this is an issue very close to my heart
and the heart of some of us here at CI.
I've written about for a while is what I sort
of conflating of science and policy is that kind of
trying to make a pot There's an effort trying to
make policy choices look as if there's some type of
(28:13):
pretend as if there's an objective or an objective scientific
answer to a particular policy question, as if it's science,
or if you don't agree with particular policy choice, it
means you don't agree with the science. No, the science
answers the science and answers the objective questions, and then
that's all it does, and you shouldn't go beyond that.
(28:35):
And the policy choices are that the policy makers need
to use the science to inform them, and it's up
to them to make choices regarding how to best address
whatever issue might be taking into account the science. Now,
I will say in the book, dot's talk a little
bit about different Our first chapter is actually about science,
and it.
Speaker 4 (28:55):
Says not a little bit. It's a long chapter and
it's recommendations on how.
Speaker 3 (29:00):
Improve I will say that one of the record wealth
is important is that science. So there's a science Advisory
Board at the EPA. There's a something called the KASE
Act which deals with clean air. Clean Air Science Advisory
Committee SASH tarly required. But during the there are just
times in these advisory boards get into issues that have
(29:22):
absolutely nothing to do with science. Like when I remember
I don't know if it was SAB or a case act.
You know, it wouldn't be a case would have been
SAB where they're writing about things regarding with the wades,
the United States issue and no Clean Water Act. And
I remember this where they are basically at what I
would say almost making legal arguments, certainly policy arguments, and
I'm like, you know, you're not the legal advisory board,
(29:43):
You're the science Advisory Board. And it's just this stay
in your lane, figure out the science. There's plenty of
plenty for you to do there, and it's just important.
And the reason why this is an even bigger shooting
even this book is that for folks that would like
to see I may not agree with certain policy choices
as relates to climate issues. If you disagree on certain
(30:05):
climate policy choices, you're then again labeled as a denier
or whatever other name, bad name they want to call
you because you don't agree with their policy are their
ideology and that that doesn't lead to constructive dialogue. Are
(30:27):
good solutions to problems? Yeah?
Speaker 4 (30:31):
I think that that's sort of a stultifying effect. I mean,
it's supposed to the other thing is you know, the
politicization of science and scientific research. This is something I
think that the science chapter has a lot of good
recommendations on, including you know, meta analyzes, looking at the
(30:52):
scientific research that you're using and seeing if if you
look at it at stuff over time, if you're finding
what's called key value doping, where the P values is
you know, whether something a correlation is statistically significant in
other words, where there's a real connection there, or or
whether it's just kind of random chance. And you know,
(31:14):
researchers have all kinds of ways that they can dope
or fudge the numbers a little bit to make P
values seem significant. And if you've got that, then on
a meta analysis, things that should be normally distributed, like
a bell curve, end up having this kind of funny
shaped bimodal distribution to you know, bring in the stifle
(31:36):
language here what you know, if you want to expand
on some of the ideas about that or the other
kind of meta analysis that you recommend in the And
then Marlowe, who wrote that chapter, recommended in that opening
part of the book that to me is some of
the most interesting and most important because even if you
get the distinction right between science and policy. If the
(31:57):
science is skewed by political considerations or just by bad
quality control, that's really destructive to these endeavors.
Speaker 3 (32:06):
There are ways and where they kind of identifies some
ideas on how you can try to identify where maybe
some things are a little askew when it comes to
you're finding results that you really shouldn't find or maybe
should give pause. I think that the big issue here
is a bigger picture is there is simply a reproducibility
(32:32):
problem with science, replication problems, pure review.
Speaker 4 (32:37):
Which is interested whether you can run the same study
again and yet results right right.
Speaker 3 (32:45):
There is just a lot of cherry picking goes on.
Speaker 4 (32:49):
Do you have any particular good examples of where this
skewed the process and led to some absurd results?
Speaker 3 (32:56):
Well, I you know, I'll say that in the there
are a lot of studies as released in particular Matter
where they're just agency just doesn't seem to want to
pay attention to these other studies. And the PM two
point five stuff is a big issue, is a big
focus in the chapter. The PM two point five is
(33:16):
five particular matter and it is kind of a really
right out there is the big pollutant that the EPA
focuses on and spends a lot of money on itself,
and really they're the big funder of the PM two
poenty five research. The one concern is you've got them
being the big funder of all the research that they
(33:37):
then use then justify the regulations, and you're not getting
kind of this other side, and to the extent that
they they do, we're not always seeing them kind of
recognize that other research.
Speaker 4 (33:51):
Now.
Speaker 3 (33:51):
One of the issues also is just the lack of
transparency for the studies that are are used and disseminated
by the agency. And it's important for people to be
able to access to these underlying data models to get
an idea of whether or not there's the legitimate about
(34:13):
the legitimacy of the studies that are being used. I
think that's President Obama and I think two thousand and
nine eight maybe it doesn't. UH issued a scientific memorandum
and big theme was, you know the importance of having
faith in the science and integrity of science. Well, you
can't have faith in the science unless people can actually
(34:36):
review how you got to your decisions. Too much of
the EPA science and a lot of the work that
they do is kind of a trust us mentality. Trust us,
you know, we know, we don't trust you. That's kind
of the nature of our system of government. We don't
simply just trust people blindly and without question. You're implementing
(34:58):
the laws, and it's important for people to be able
to figure out whether are not your emploment of many
of them consistent with what Congress intended, but also in
a way that it actually reflects the best available.
Speaker 4 (35:10):
Science with I want to make sure we cover some
stuff about water too. That's another big part of the book.
And Clean Water Act comes a little bit after the
Clean Air Act, and one of my friends likes to
joke that you can definitely tell that Congressional staffers were
smoking a fair bit of dope when they wrote the
(35:32):
Clean Air Act, but then had moved on to harder
drugs as the seventies went on and they wrote the
Clean Water Act. Clean Water Act has some crazy stuff
in it, including you can join as a citizen to
as a co prosecutor in any criminal Clean Water Act
endeavor as a matter of right. I don't know if
anyone's ever tried it. I haven't ever looked, but that's
(35:55):
just one kind of funky thing about it. And it's
got pollutants include listed pollutes include things like sunlight and
anything that you know, you put in the water, even
if you just took it out of the water. So
what are some four ideas that you have for water?
And you know, conversely, though it seems like water is
one of the area unlike air, we do have some
(36:15):
real water quality issues. I wouldn't want to go, you know,
over the Potomac and drink the water out of that.
Speaker 3 (36:22):
No, you're not drink I'm going to get there, but
down there and have a gulp every day. Yeah, I mean,
there are some pretty specific issues with Clean Water Act
that are brought up, and I hate that are actually well,
let's start with the first big issue, and that is
(36:42):
what water's even regulated in a Clean Water Act. And
that's where you get to the question of waters in
the United States, the real statutory terms navigable waters, but
and further, it's meant to be.
Speaker 4 (36:56):
Waters is defined as waters of the United States.
Speaker 3 (36:59):
And territorial seed the definitions and of course it's taken
the EPA and the Army Corps who Army Corps also
deals with this Clean Water Act issues in implementing the
law continuously try to expand what the meeting is and
what waters are regulated, and they've kind a shot down
(37:20):
multiple times by the Supreme Court for their overreach. And
recently in Supreme Court case called Sacket versus EPA, which
is got of the second sack Of case there was
a first one, the Supreme Court finally provides some clarity
and they also kind of blessed on what waters are covered.
And I don't know that it's how critical it is
(37:43):
for Congress to try to get into the Clean Water
Act and define waters the United States at this point
given the Supreme Court opinions I think are favorable. But
we certainly do talk about how they could do it,
and it really is just trying to focus on not
dealing with non navigal waters that it really should be.
(38:04):
When we're talking about wetlands, it should be exactly what
the kind of court has said. You know you it's
a type of a wetland. Only a wetland by itself
is not what a water that should be water that
regulated on its own. The only reason why wetland would
be covered is because it's you can't tell the difference
(38:25):
between where you know the traditional navigal water starts and ends.
Speaker 4 (38:32):
You've got a marsh that it butts up to.
Speaker 3 (38:35):
And literally or something. And I think the key point
is that you literally can't tell by the naked eye,
like I can't tell. So it's just that's why it's included.
It's not because we a separate category of water is
to protect, so we would the idea is to kind
of focus on, you know, nutrition, navigal waters and waters
(38:57):
that are kind of connected to those waters, things that
are now avocable as well. And then if we're dealing
with the wetlands that need to be adjacent, not just
adjacent which is what there said, but actually connected. You
can't tell the difference between.
Speaker 4 (39:13):
The surface water connection on the phrases used.
Speaker 3 (39:16):
And also, you know the Supreme Court has said, and
this even the bid administration rule that amended, it's what
is role' woking into. I mean, you're dealing with relatively
permanent waters. And it's important also to make sure that
the Court has said and that means lake streams whatever,
(39:39):
like what people actually think of as waters. That the
problem with with the Whattice issue is there effort to
try to for property ors. We just had no idea
that something would even be regulated there.
Speaker 4 (39:53):
The sactic case, right, it was a family that bought
a plot of land and they had like a little
bit of low lying property that occasionally, not even every year,
every few years would get a little bit flooded and wet,
and you'd have a standing very like a very large
puddle basically in the backyard. And EPA said that this
(40:17):
was covered by the Clean Water Act as a water
of the United States.
Speaker 3 (40:22):
I mean, it's because the property is next to this
drain that's across the street or something, and then that's
connected to this other thing that then you go here
and get to that, and then that connects to a
lake or whatever, and their forcing jacent water. It's just like, okay,
come on.
Speaker 4 (40:38):
It's a little bit like defining the toe as the
hip because the toebone is connected to the kneebone actually exactly.
Speaker 3 (40:44):
So you know, I think enough of that, you know,
I just should point out the Supreme Snissly Legislator recommendation.
But it is important for people to know that one
of the major kind of legal principles that have been
used for a while on the WAE issue was the
(41:04):
significant nexus test for whether or not waters are regulated
is whether or not there's a significant nexus to put
this water in that other water. And if unanimously got
shut down by Supreme Court anyway, the I would say.
Speaker 4 (41:22):
That Anthony Kennedy, uh write Kennedy style jurisprudence. Right.
Speaker 3 (41:27):
So I think you think that there's a lot of
there's some important recommendations in the Water Chapter as well
regarding what are called Session four or four like retroactive vetos,
a Session four or four permits or preemptive vetos of
these permits. In other words, the property or might get
(41:49):
a duly issued permit from the armor core of Engineers
and then kind of after the fact, e PA comes
in and uses veto power into four or four C
to say no, you can't, I.
Speaker 4 (42:00):
Can't do that. Actually, it turns out permission was never
rented properly in the.
Speaker 3 (42:04):
Right, so that you know, like that shouldn't happen. There's
some language we just say.
Speaker 4 (42:08):
Things like a basic good government order of operations kind
of problem.
Speaker 3 (42:12):
Yeah, and then we think that there's I should point
out that I don't know if I'm going on a
tangent here maybe, but Session four four dredge of phil
permits and really there that's really just dirt moving activities.
They're not when we do with dreasure FILD, we're not
(42:33):
really talking about pollution the way people normally would think
about pollution.
Speaker 4 (42:38):
It's not a source of right from a factory where
you've got, you know, disgusting chemicals being put in the water.
Speaker 3 (42:47):
Now, what you're having is a couple trying to build
a house or farmers trying to plows land, and so
we're not dealing with anybody trying to And what happens
is a lot of property owners are not aware that
they might even need the permit, or wouldn't or even
though they might be aware, the Clean Water Actor would
have no reason to believe that they need to actually
(43:08):
get the the permit because it makes no sense because
you look at something that is actually dry land almost
every day of the year, but it might hold water
for a few days a year, and then therefore it's
a a FM or water that somehow is covered under
the Clean Water Act. That again, I don't think that
will be I think moving forward, I don't think the
(43:28):
EPN core will go with that anymore, but you never know.
So that's one reason why it's kind of the as
a strategic reason, like, Okay, the court has given some
good there's a good president here, so you know, is
it worth going into the legislation trying to change Clean
Water Act and opening it up even for mischief or
(43:49):
right or you know, there's also the other argument where
you recognize EPN core exactly haven't been They've always been
trying to expand their power as much as possible, So
maybe they'll never really properly interpret sack a case. Therefore
we may need to have a legislative solution. So yeah,
it's great. I think the Water Act chapter ran by
(44:09):
Tony Francois is a great chapter. I'm very easy to read, too.
Speaker 4 (44:15):
Excellent the running here towards the end of our time,
I think. But I do have a couple more quick
questions for you. One one is about citizen suits and
for people who don't do environmental law. I find that
this concept is very surprising because you know, we don't
(44:36):
have citizen suits for like traffic enforcement. You know, we don't.
Say this is an example I'm borrowing from Professor Michael Graba.
He says, imagine like you have you can just sit
around and see someone run a red light. You can
go and you can you know, just bring an action
against them because you saw it happen or that you
just found it happen on on like you know, some
(44:58):
registry of the photos of who ran red light. That's
basically how citizen suits work under the Cleaner Act, clean
Water Act, many of the other you know, less prominent
environmental statutes, and you have some ideas for reforming them.
I tend to think that they have some serious constitutional
problems just because you wouldn't give you wouldn't let people
(45:20):
bring criminal prosecutions or civil actions or penalties against folks
in other contexts. But you know, maybe if you want
to talk about the recommendations you have and what you
think could be done to reform the citizens suits situation.
Speaker 3 (45:41):
Yeah, So these these laws, these provisions, I think there's
over I think there are over twenty environmental statutes actually
kind of a private attorney's general situation. And this isn't
actually in the Chacker, But there are situations, no matter
what people say, because I've seen them where where there's
(46:05):
kind of a sue and settle situation and the agency
will agree to not just it's not just that the
agency is being sued to meet a specific deadline or
to do something they're required. But also i've seen agreements
where you're.
Speaker 4 (46:21):
Talking about citizens suits where you can sue the agents.
There are two types, right, There's one that's enforcement, and
then I think what you're talking about is where there's
a mandatory duty, often without sufficient funding or resources for
the agency to do it, and then you can sue
as an NGO and make them do it and get
your attorney fees thrown in.
Speaker 3 (46:41):
Yeah, and so you know, sometimes people call those deadline suits.
But the the point is that sometimes there's discretionary decisions
kind of and they into these agreements that have altered
(47:02):
certain on the nature of the rules. Now, even when
they don't, the problem is that if you have the
deadline suit, sometimes they can be very rushed and then
you avoid some of the procedural protections that exists in
the promulgation of a rule. So some of the recommendations
this isn't supervision. Was we discussed specifically in the water
(47:25):
chap or could even discuss elsewhere as well, is just
something we tend to do. But I think the key
point is kind of recognizing that the planet, for cell
should have some type of injury.
Speaker 4 (47:39):
In law and the Prime Court Darren has said that
an aesthetic injury is sufficient, which has led Justice Thomas
to ask if that doesn't mean basically everything. For instance,
the Supreme Court has said that getting an accurate credit
report is not something that people have standing on its
own to sue about, and Justice Thomas is pointed out,
(48:00):
well what if they claimed to aesthetic injury from that?
Speaker 3 (48:03):
Well, you know, the I've been asked a lot like
why is it so easy, at least from our perspective,
from myctive, easy to get standing in the environmental context,
but it's just seems to be more difficult for like
some business a trade have a case.
Speaker 4 (48:21):
At the Supreme Court this month about whether California's electric
vehicle mandate is something that fuel manufacturers and producers can
sue about. Well, the obvious that they're injured by that,
but it's it's a little bit, But are they.
Speaker 3 (48:39):
More injured than me not knowing that the you know, whatever,
Wolf and the Grand Canyon or wherever. Some park that
I'll probably never visit but might want to one day
may not be around or won't be as many. Unfortunately,
those types of injuries abstract speculative of injuries tend to
seem to work comes the environmental context, but something that
(49:03):
to me is far more direct, like and what you
just said doesn't always seem to work, so that that's
a real problem. I think a lot of the challenges
also deal with like like paperwork violations and things like that.
It's just the supervision at least in the clean water
op context, which makes no sense. So there's there's more
details on as well in the book on trying to
(49:25):
fix these problems, because.
Speaker 4 (49:29):
Yeah, there they're a dysfunctionality.
Speaker 3 (49:32):
It sounds like I think the core of the EPA
do plenty of enough to create havoc.
Speaker 4 (49:38):
Uh. Yeah, as someone who's as someone who's represented them before,
I can say that, yes, that is the case.
Speaker 3 (49:46):
All right.
Speaker 4 (49:46):
So you also have some recommendations about the ira and
I want to make sure you get a chance to
talk about those. The inflation of the so called Inflation
Reduction Act and and ways in which that should be changed.
Speaker 3 (50:02):
Yeah, this would be really quick. Get rid of those
ira A provisions that deal with anything to do with energy,
pretty much all the put air quotes, green subsidies. Now
the e p A has Now this is an ep
A book, so it has several different IRA programs as well,
(50:25):
and get rid of every one of them, many of
the provisions and the IRA dealing with I with the
e p A try they try to get cute by
trying to expressly authorize the regulation of greenhouse gas by
for every provision. Then it will say like spend money
for X, Y and z, and then they'll say greenhouse
(50:45):
gases are the air pollutants, blah blah blah blah whatever.
Speaker 4 (50:51):
There are a couple of best ones that they try
to I think.
Speaker 3 (50:54):
You know, look at those are spending programs, not by
itself giving orderator authority, although it does argulation provide help
for anybody way.
Speaker 4 (51:05):
So one interesting thing that does come up is, sure
you're where. There are a number of state attempts to
basically expropriate the American energy industry by trying to retroactively
tax them for carbon dioxide emissions or to say that
they somehow deceived the public and that we, you know,
(51:26):
we wouldn't have filled up our cars if we had
known just how terrible things were. And one of the
core arguments against that is that, look, the Clean Air
Act takes the field here and that's the whole regulatory
regime for the entire country, and so you can't come
in over the top of these other things and say
we're regulating this in this other way or retroactively or whatever.
(51:46):
There is I think some concern that if you're undoing
those kind of provisions you might be and I think
this is a misplaced concern, but I do think it
requires being clear if you're a lawmaker, or being clear
if you're a regulator, that what's happening here is not
opening the door to states to go even further and
(52:07):
do crazy climate stuff on their own.
Speaker 3 (52:11):
Yeah. I agree. I mean, that's that's a good point,
and I think that's something that the scent of that's
an issue needs to be thought through. I also the
argument that somehow we wouldn't filled up for gas tank,
or we're filling up her gas tank right now and
we will continue to. I mean, just the idea of
(52:33):
these retroactive laws should be concerning to anybody, for any industry,
and I'm sure that Federal Society is doing or has
done events on these laws, and we certainly need to
they're concerning very concerning. There's there's a lot of you know,
the President Trump justish had an exective order on some
(52:54):
of the state overreach. I'm not sure what that will
lead to ultimately, but that's something that's certainly on the
the radar screen of the administration. Yeah. So, I mean
every everywhere you look at it on the climate stuff,
it's state, federal, global, it's regulation, it's spending, it's you know,
(53:17):
think about an appliance issue, it's federal regulations to try
to restrict the appliances. It's spending money, giving into states
or local communities to establish building codes to make more
difficult or to have building codes that you won't be
able to connect to natural gas appliances. It's just the
same things. As you know better.
Speaker 4 (53:37):
The Ninth Circuit said, you can't do right.
Speaker 3 (53:40):
Right so with the cars, as you know better than
I do. Every every multiple agencies at federal level. And
I was just stress because we're talking about IRA. I
believe that, uh, certain politicians recognize that people really don't
care about spending very much, and that if you want
to achieve your objectives, you just spend and you can
(54:03):
use that to achieve kind of very radical changes in
the country. And then you know, I think in the
past that you know, you would say, well, we can't
get the spending through, so we'll use the regulatory process
to try to achieve it. I think things almost a
flipped where we're going to spend and regulations will almost
be our backup plan.
Speaker 4 (54:21):
So I think that's I think that is an interesting
and I think you're correct that that is. And that's
one that sadly when the few areas where Congress does
seem to be able to come together and actually do something,
but you can't throw money at problems, is not This
is not a substitute for smart standards and actual you
know law. Well, we're here, you know, I think we're
(54:44):
right at the end of our time to close out
why why don't what are the next steps for the project?
And where can people find more information on it?
Speaker 3 (54:53):
Well, you think you can find more information at CEI
dot org. There's kind of a page for the project act.
And also you can get a copy of the book.
And you know we have hard copies too.
Speaker 4 (55:06):
Oh I got to get one. I've just got.
Speaker 3 (55:09):
And so when we're going to be working on this
issue for for a long time, it's not just release
the book and then go home. It's release the book
and this is just the start of the process. We look,
we want to turn the ideas and there are many
specific ideas and it would be impossible to really to
go through it in a podcast and actually have people
listen to it. So we're going to try to. We're
(55:32):
trying to turn these ideas into legislation, and we we
consider this to be a big fight and we hope
that people would join us in this fight to modernize
and reform v p A.
Speaker 4 (55:44):
Well, thank you, Darren, and and thank you to the
Federalist Society for hosting this podcast. And yeah, I hope
you all get the book in hard copy or PDF
and and read it because it's a very interesting, very
interesting piece of of work and analysis.
Speaker 2 (56:03):
Thanks again, well, thank you both for sharing your time
and expertise with us today. And to our listeners, thank
you for tuning in.
Speaker 1 (56:16):
On behalf of the Federal Society's Regulatory Transparency Project. Thanks
for tuning in to the Fourth Branch podcast To catch
every new episode when it's released. You can subscribe on
Apple Podcasts, Google Play, and Speaker for lays from our TP.
Please visit our website at regproject dot org. That's our
egproject dot org.
Speaker 3 (56:44):
This has been a FEDSC audio production
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