In December of 2008, Tennessee’s Emory River turned black. It was clogged with an estimated 300 million gallons of sludge after a dam failed at the nearby Kingston Fossil Plant and sent a slurry of coal ash and water surging into the river valley. Coal ash, a byproduct churned out by coal-fired power plants, is toxic; as Kingston’s sludge destroyed homes on the banks of the river, it also carried heavy metals like mercury and lead into the waterways. Many of the workers hired to clean up the spill are still suffering from serious illness over a decade later.
In the aftermath of the disaster, the Environmental Protection Agency began inspecting coal ash storage facilities across the country. In 2015, citing their findings, the agency created a policy that regulated storage of the toxic waste product — an incremental move, but an indication that the Obama-era EPA took the lessons of the Kingston spill seriously. Now, the Trump administration is chipping away at the policy, introducing and widening loopholes even after the D.C. Circuit ruled that the original regulations had not been stringent enough. And the creeks and streams of coal country, once protected from this kind of contamination, are heavier with toxic ash because of it.
The Trump administration is dismantling the coal ash rule sentence by sentence. Through a series of ostensibly unremarkable changes — an added exception here, an extended deadline there — the Trump EPA has poked enough holes in that environmental regulation to put this country’s water resources at risk. And the crumbling of the coal ash rule reflects a larger pattern: Among the scores of environmental regulations that the Trump administration has attempted — often successfully — to roll back, many seem esoteric or mundane. Changes to the rules are so embedded in regulatory jargon or misleading language that their implications risk going unnoticed. Moreover, the Trump EPA has pursued these rollbacks in the shadow of other extraordinary attacks on the environment and climate: withdrawing from the Paris Climate Accord and replacing the Obama-era Clean Power Plan, to name a couple. Those decisions are egregious, and they demand our attention. But if we want a stable future for Earth and its inhabitants — in fact, if we do not want to reverse environmental progress by decades — we cannot afford to ignore the Trump EPA’s subtler moves. After all, steady erosion can cause a landslide.
That is not to say every environmental advocate needs to keep track of every deregulatory move; that is a dizzying prospect. (The rule changes are so constant and wide-ranging that Harvard Law School’s Environmental & Energy Law Program created a tracker just for other environmental rollback trackers.) Some specific rollbacks, however, demonstrate the hefty consequences that the Trump EPA’s strategic rule-tweaking can have.
Take, for instance, the agency’s recent deregulation of hydrofluorocarbons. In the ’90s, the EPA approved HFCs as a replacement for ozone-depleting chemicals, part of a landmark international commitment to protecting the dwindling ozone layer. When research began to show that HFCs are greenhouse gases thousands of times more potent than carbon dioxide, many countries ratified the Kigali Amendment, pledging to phase out HFCs as well; in 2016, the EPA established national regulations on HFCs, pending U.S. ratification. Not only has the Trump administration failed to send the Kigali Amendment to the Senate, but the EPA has rolled back the 2016 regulations on HFCs. Their changes might seem small; on industry recommendation, they tossed requirements for the inspection and repair of HFC leaks, for instance. But the EPA itself has predicted that the rollbacks could add about 3 million metric tons of carbon dioxide-equivalent emissions to the U.S. output annually, an amount roughly equal to the greenhouse emissions of almost 650,000 cars in one year.
Even more galling, the Trump EPA titled that new rule “Protecting Stratospheric Ozone.” To be clear, this rule is exactly as stringent toward ozone-depleting substances as the previous regulations were; it merely loosens restrictions on an alternative that has since lost scientific and international favor. In other words, far from protecting the ozone layer at all, it caters to industry and places the United States in opposition to the growing international embrace of chemical alternatives that neither destroy the ozone layer nor contribute heavily to the greenhouse effect.
In fact, deceptive language abounds in the agency’s recent rollbacks: one recently proposed rule, titled “Strengthening Transparency in Regulatory Science,” would prohibit EPA regulators from relying on any scientific data that cannot be made publicly available. This might be a laudable goal — except that health data is often confidential, meaning that the EPA would lack much of the research behind its regulation of industrial polluters. The proposal has generated widespread criticism from the scientific community; in a recent letter, a coalition of the country’s universities and leading scientific organizations condemned the rule, writing that it is “not about strengthening science, but about undermining the ability of the EPA to use the best available science in setting policies and regulations.” Protecting the ozone layer and increasing scientific accessibility should absolutely be environmental priorities, but the Trump EPA is using them as smokescreens for distinctly anti-environmental policies.
To set off the avalanche of deregulation, the Trump administration has eagerly given control of the EPA to some of the agency’s most vocal detractors. It is important to clarify that the Trump EPA continues to employ a number of career staff members who have committed themselves to environmental protection; deep budget cuts and disapproval of the agency’s new deregulatory bent, however, have compelled many of them to leave. And much of the new leadership chosen by the Trump administration comes to the EPA directly from the chemical and fossil fuel industries that the agency is charged with regulating. Most visibly, agency head Andrew Wheeler previously worked as a coal lobbyist. But the conflicts of interest are everywhere; for instance, the head of the EPA’s Superfund program — established to hold polluting corporations responsible for their own cleanup — had previously fought for Dow Chemical in the company’s Superfund disputes. With that kind of leadership, it is hardly surprising that environmental protections are disintegrating.
All of these changes — the regulatory tweaks, the disavowal of science, the political appointees — have very real human consequences. And the majority of the burden is borne, far and away, by low-income communities and communities of color. The Obama administration, for instance, tried to ban a pesticide called chlorpyrifos; last year, the Trump EPA announced it would not pursue a ban, and scores of farmworkers have suffered bouts of acute poisoning as a result. The agency has proposed scientifically dubious allowances for toxic air pollutants, when research has shown that neighborhoods with more low-income residents or residents of color face disproportionately high concentrations of precisely those pollutants. The Trump EPA’s environmental transgressions threaten global consequences, but these communities will be affected first and most intensely.
What in the (increasingly polluted) world can we do? While regulatory changes do have public comment periods during which advocates can register their disapproval, litigation appears to be the most effective weapon. Environmental advocacy groups and coalitions of state attorneys general have tirelessly challenged the Trump EPA’s rollbacks — often to great effect. Aggressive litigation will help blunt the administration’s attack on the planet until a new president can replace the EPA’s leadership and set the agency back on course. Litigators are particularly situated to target the Trump EPA’s regulatory sleight-of-hand, but legal recourse is not available to everyone; in large part, it will be up to states and environmental organizations to safeguard these long-sought protections. Those efforts, combined with the attention of the public, could preserve the country’s regulatory foundation until the Environmental Protection Agency can get back to doing the job it was named for.
Image by Ella Ivanescuis licensed under the Unsplash License.
