A Climate Change with Matt Matern Climate Podcast

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153: David Doniger Explores EPA's Future Amid Supreme Court Rulings

Guest Name(s): David Doniger

Matt Matern speaks with David Doniger from NRDC discusses his environmental career and the impact of the Clean Air Act, saving 250,000 lives annually. He addresses the Supreme Court’s decision limiting EPA’s authority, part of a conservative push against federal oversight.

David highlights the need for state and federal action, citing California’s leadership and the Inflation Reduction Act’s incentives for clean energy. He urges continued advocacy and accountability for environmental policies.

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David Doniger has been at the forefront of the battle against air pollution and global climate change since he joined NRDC in 1978. He helped formulate the Montreal Protocol, an international agreement designed to stop the depletion of the earth’s ozone layer, as well as several essential amendments to the Clean Air Act….

You’re listening to A Climate Change. This is Matt Matern, and I’ve got a great guest on the program today, David Doniger with the Natural Resources Defense Council. Thanks, David, for being here. You know, you’ve got a long and very impressive resume starting with the NRDC back in 1978, working on the Montreal Protocol, which saved the ozone layer.

for anybody who is unfamiliar with the importance of that extraordinarily, you know, earth protecting process. And then in 1993, you joined the Clinton White House for the Environmental Quality Council and then EPA and then back to the NRDC in 2001.

And you’ve been there ever since defending the Clean Air Act and protecting our air quality, which I guess just for the audience, I had read that the Clean Air Act II, which was passed under George Bush one, has saved 250,000 lives a year every year since it was enacted 30 years ago. So you think of that’s seven and a half million people whose lives were saved by this pretty profoundly important piece of legislation.

Yes, it’s been a tremendous success for protecting public health and for parts of the environment. Like we’ve also basically beat acid rain and as you mentioned, protected the ozone layer. There’s still a lot of damage done by air pollution though.

Small particles that hurt people’s hurt and kill people every year, also ozone smog. And then there’s the big problem of climate change, which is the granddaddy of all air pollution problems caused by carbon dioxide and other heat trapping pollutants.

Now, why we kind of have you on the program today in particular is, I mean, obviously these issues are important every single day, but the US Supreme Court came down with a new case talking about the Chevron deference, which had been given to essentially the EPA when regulating.

And now that is you know, being taken away and tell the audience why that’s important and why that may shift the environmental protection that we’re currently getting and why it may impair it going forward.

Well, not just by itself, but a whole string of decisions starting a couple of years ago from the Supreme Court have been cutting back on the authority of EPA and other agencies to carry out the laws that they have been assigned to implement by the Congress.

It’s part of a campaign from the right, from big business, from very conservative you know, politically, active, people like the Cokes, and their network, the chamber of commerce and many, many big businesses and right wing people to curtail the power of the federal government because they just, they just don’t want the government on their lawn. They don’t want the government telling them what to do.

The reason we have these laws is that the conduct of companies like that, for example, that release a lot of air or water pollution, hurts people, hurts other people. And it’s to protect those people that Congress passed these laws and their interests should be number one.

But in these decisions, their interests are going to the background because the courts are very sympathetic now to the big companies, the billionaires and so on who just wanted the government stay out of their hair.

Right, essentially the Congress had passed in years past, back in 1970, ‘71, the Clean Air Act number one under Nixon. And at that point in time, I recall reading that it was passed practically unanimously by Republicans and Democrats alike.

Everybody seemed to be rallying around the fact that clean air and clean water seemed like a natural thing that we want to protect for everybody. And since that point in time, things have changed. But in 93, there was still bipartisan support to pass a new Clean Air Act. And since then, I think we’ve seen degeneration of that support as a bipartisan issue.

And unfortunately, I feel like that it it really isn’t true conservatism to not conserve the environment. The conservative thought is to protect the environment, to protect this for future generations is a conservative value. I mean, going back to Teddy Roosevelt and Lincoln were early proponents of conserving land that was important for everybody.

Unfortunately, that seems to have shifted to a number of people wanting to extract as many barrels of oil as possible because they think, hey, if we can make money off of it, that’s the most important value versus the potential damage to our client. So what do you see as the next kind of battle in this?

I mean, is it going to have to happen through Congress, or do you see that courts and people on the ground can make a difference to at least bend the needle towards a climate that will be protected?

So look, efforts at the local level, at the state level, are really important. And some of our states, California is one, there are about 15, 18 others, are really taking the lead with clean energy policies and clean air and water policies and environmental justice policies that are going to make things better.

But the thing of it is, most of the pollution, climate pollution, comes from the states which aren’t doing that. It comes from Texas, it comes from, you name it, West Virginia, Indiana, places where coal and oil and gas are still dominant forces in their state, political, state politics. So they’re not, you can’t expect to pass.

California or Michigan style clean energy laws in Texas. And that’s why we need national action. That’s why we need action at the federal level. Congress wrote these laws, the 1970 and 1990 Clean Air Act amendments, and they were bipartisan, as you say. There was a lot of conflict. I would say that Republicans in general were more sympathetic to the business side of the argument than the Democrats, although you could find oil state Democrats sticking up for their interests too.

But things have really shifted where the country has become in so many ways polarized. And the Republican Party is something of a wholly owned subsidiary of the oil and gas industry these days. So it’s very difficult to get new legislation done.

So the emphasis of the Biden administration has been on trying to make progress under the existing laws. Now there is one major exception to my statement that Congress can’t pass new laws. In 2022, Congress passed the Inflation Reduction Act, which is actually the biggest climate protection law ever put on the books.

It puts hundreds of billions of dollars in incentives on the table for companies, homeowners, car buyers, et cetera, to adopt clean energy technologies that are low polluting. And there’s a tremendous speed up going on in the deployment of those clean technologies. The other thing that that law did was it reinforced, it has some small Clean Air Act amendments that it reinforced some of the important missions of the EPA, including that it’s the EPA’s job to regulate climate pollutants.

So the Supreme Court has, in various ways, been curtailing how expansively EPA could use that power, but it has not revoked that power. In fact, in the decision, a decision called West Virginia versus EPA about power plants two years ago, the court said, EPA, you can’t do things the way you did in an Obama era regulation.

But there is a traditional pathway to set technology -based standards that apply to individual power plants that’s open to you. You could do that under the Clean Air Act. So in the last two years, the EPA has rewritten the power plant rules to follow the direction that they got from the court and then they got from the Congress in the IRA, the Inflation Reduction Act.

Hmm.

And those regulations were issued in May, and they’re now in court being challenged by the power industry, by the coal industry, by the gas industry. We’ll have to see if the courts will uphold what EPA has done, even though EPA has tried very rigorously to follow the roadmap that the court laid out just two years ago.

Well, obviously, former President Trump has campaigned on a pro-oil and gas agenda. And so the chances are that he’d probably come in and wipe all those new Biden era regulations off the books. Right.

Yes, there’s a lot at stake. As the two parties become, especially as the Republican Party becomes the holy unsubsidiary of the oil and gas and fossil fuel industry, the differences in positions get starker and starker. And so the choice that will be made in the next election will be very stark.

So you see if there are some bright openings there for the EPA to regulate into using this pathway that the Supreme Court delineated in the West Virginia case, how might it regulate, say, the oil industry regarding, say, methane, for example, to use cleaner technologies to reduce methane emissions.

Right. Well, in addition to the power plant standard that I mentioned, the Biden administration, Biden’s EPA has produced two other big rules, which are also being challenged. One is to curb the leakage of methane from the oil and gas system. That’s being challenged by, you guessed it, the oil and gas industry and states where they are powerful. And then also rules to curb greenhouse gas emissions from motor vehicles, from cars and trucks.

And those are being challenged not by the auto industry, not by the truck maker industry, but by the fuels industry, because they don’t want to lose their market to electric vehicles. So all these things are going through the courts now. The new decision that you mentioned from last week is a signal from the court, another signal, that’s basically very skeptical, maybe you could say outright hostile…

Right.

…to expansive use of the environmental laws on the books. But as I said, they have, in their opinions, they have recognized that EPA does have a sphere of authority to regulate greenhouse gases, the carbon dioxide, the other heat -dropping pollutants. And EPA’s done that for three of the biggest sources, power plants, the oil and gas industry, and vehicles.

And we’re in the court cases, NRDC’s in the court cases, helping defend the EPA actions. So we think they wrote the standards, you know, we think they skated to where the puck was going. We think they wrote these standards with the sort of new rules that the Supreme Court has announced in mind and that they’re very strongly backed up by factual records and evidence.

And we think that the courts should, well, certainly should and will uphold these actions, even under the restrictive rules that the Supreme Court has announced.

In terms of a Trump, if there was a Trump presidency starting in 2025, I guess, would he be able to wipe that, those regulations off on day one or would he have to go through his administration to go through a period of time of rulemaking processes in order to wipe those off?

Yeah. They’d have to go through an extensive process. And this is what happened in the first Trump administration. They set out to do some things quickly and they got struck down by the courts because they hadn’t followed the basic procedures of consulting, putting out a proposal, consulting with the public, getting comments, evaluating the reaction they got from the public and defending what they did against those complaints.

They just bulldozed ahead and when they bulldozed ahead, they usually lost. So it took them three years to undo some of the things that the Obama administration had done. The Biden administration worked very hard and very fast, but that same process takes time when you’re building things too.

You have to use that process to build something. You have to use that same process to tear it down. But it can use up two to three years to get that stuff done. So a lot of the major accomplishments of the current administration have come to fruition this spring. And unfortunately, the lawsuits won’t get resolved that quickly.

But if the Trump administration comes in, if there is a Trump administration, they would have to make proposals and take public comment and explain their decisions if they wanted to reverse these things. The former president has talked about being a dictator on day one. It would probably take longer than that to achieve his goals.

We can only be thankful for his incompetence that he probably wouldn’t be very effective or completely effective.

Well, that’s true, but there’s much to worry about here because any president relies on assembling a really good team of senior officials and some of whom you get to know their names because you see them on TV from time to time, cabinet officers and so on, but also many other people who don’t get public recognition who do the work along with the career staff.

And the lesson that Trump’s people have learned is that you need to prepare. You need to have some competence and expertise. So I don’t know whether the former president appreciates that himself, but there’s a lot of people from the Heritage Foundation and other conservative organizations preparing blueprints, something called Project 2025, which is the blueprint for all the rollbacks that those guys would like to achieve this time around.
In terms of kind of pivoting a little bit to the SEC regulations, that the SEC had tried to put some disclosure regulations regarding environmental risk, and those seem to be limited. Are there some teeth left in those regulations, or have they been effectively gutted?

Well, the administration issued rules that are significant. They didn’t go as far as some of the advocates want. But they’re significant. The status, though, is that they’ve been challenged in court. Under that statute, you end up with a lottery to determine which court hears the case. And it happened to land in the Eighth Circuit, which is extremely conservative the agency, the SEC, has put the rules on hold until the litigation is resolved.

So they’re not in effect yet. But they are intent on defending their authority to do this. And the essence of it is that the right, the attackers say, what is the SEC going into the environmental space for? That’s not their business.

But the SEC’s view, and we agree with it, is that their business is to help investors, big and small, understand the material risks that are associated with various conduct or positioning that companies take, and that the hazards of climate change, whether they could, you know, a company’s facilities could be flooded or that a company’s pollution would be accelerating those kinds of climate change effects.

The investors need to know that information in order to know which companies are the better investment. So the SEC treats the climate risks like other categories of activity where there are risks that affect the value of the investments and investors should know about.

It seems very commonsensical and obviously there are increasing climate risks and many climate related lawsuits that are evolving across the spectrum. I had previously interviewed Missy Sims who’s suing a bunch of the oil companies for the hurricane in Puerto Rico and many governmental entities are being sued or not, governmental entities are suing various polluters for their effects. What is the NRDC’s role in that litigation and where do you see that headed over time?

Well, NRDC helped represent a group of land conservation trusts. This is about 10, 12, 14 years ago. In a lawsuit against the biggest power companies, the most heavily polluting power companies, we were joining that by eight states. And it was under a theory called federal common law.

There were cases from the early 1900s in which the Supreme Court said that this, for example, the state of Georgia could sue a smelter over the border in Tennessee because of the harm to its forests that the smelter’s pollution was causing. And we pursued that theory. The Supreme Court ended up saying, no, look, this is EPA’s job under the Clean Air Act.

You can’t bring suits in federal court over that kind of pollution. But the Clean Air Act and the court decisions so far leave intact the tort law of states. So cities can bring lawsuits looking for damages from let’s say oil and gas companies from the effects of climate change on their streets, cities, services, you know, from flooding and extreme heat and other kinds of hurricane impacts and so they can bring those suits under state law.

And so far the Supreme Court has rejected two or three attempts by the oil companies to say, looks, this is somehow preempted and only the national government can deal with this and only that means only the Congress.

They keep trying, but so far those attempts to block these state and local government suits have failed. And we’d like to see the cities have their days in court under state law, in state court, and see whether the companies will be held to account for the damage they’ve caused.

Yeah, that would be incredible. And I think a whole wave of litigation should result from that. It’s challenging. These cases are incredibly challenging to bring and require a certain degree of sophistication. And I think we probably need more people litigating these cases to bring these polluters to account. What are your thoughts on how that could be done going forward?

Well, it’s just important to pursue all the available angles again at the state, local and federal level. We need to keep pressing the Congress, even though the Congress is not particularly functional these days, keep pressing the Congress to acknowledge that climate change is a real problem and people are getting hurt and it needs to be remedied.

So we need new laws that make clear what the polluters obligations are to shift to clean energy and eliminate that pollution. And we need to keep working within the laws that exist today to get the most out of them that we can. It would have been better if we dealt with the climate problem 50 years ago or 25 years ago, but the second best time is now.

Right. So in terms of kind of your calls to action, what are the things that you would recommend that the audience go out and do that would make the biggest difference going forward?

Well, I think the basic thing is to let your elected representatives know and let candidates know that you care about climate change. You care about that and other forms of environmental pollution. And you want them, you want to hold them to account for solutions.

We need, you know, all these members of Congress, for example, to feel the heat, so to speak, about the heat. And it’s maybe even more important that the public make its views just known at that top level. We have to have action on climate than it is to talk about any very specific thing at this point. We’ve got to get the top line message right.

Well, certainly that is a good starting point for anybody is to say, hey, we need to hold our elected officials accountable and our candidates should be grilled on these issues to say, what are your positions and where do you stand? And do you support laws that protect our climate and protect us from pollution? I appreciate David, you being on the program.

Yeah, I mean, I’ll just say one more thing. It’s an especially compelling argument when the solutions save you money and make you better off in many other ways. Cleaner vehicles, electric vehicles, are cheaper to own and operate. The technology like heat pumps is cheaper to own and operate than traditional forms of heating that have more pollution.

We really need a shift away from fossil fuels used directly to electricity. And then we have to clean up the power system so that it’s generating that electricity without greenhouse gas emissions. Now, we’re making strides in those directions because of the Inflation Reduction Act and underlying economic trends and state action. And and federal action under this administration. We just have to intensify.

Right. Yeah, it’s amazing that both wind and solar are cheaper than any other form of power right now. So just from an economics perspective, they make the most sense to roll out.

And the most amazing innovation, the most amazing cost reductions are happening in battery storage, which is not just the batteries that go into electric cars, but the batteries that can be used in the electricity generating system so that you generate the wind and the solar power when the wind’s blowing and the sun’s shining.

And the batteries hold it so that you can use it when the wind isn’t blowing. It’s dark. So this is just a tremendous change in the technology. And we need to deploy this stuff like gangbusters.

Right, yeah, it’s heartening to see the amazing technological innovations that are occurring and we could probably go on and on about them. One that comes to mind is the batteries in electric cars being used to take power from, say, if somebody has solar on rooftop solar and storing it in their house and kind of creating this microgrid and then being able to use it later when power is maybe more expensive.

Yes. Yes. And, you know, the power industry, some of the power industry is game to run with these technologies, but some of the power industry is, you know, just wants to protect their current position and fend this stuff off. Same with the gas industry is a big impediment.

It’s a real game changer to deploying these electricity technologies. So there are a lot of battles and there’s a lot of ways that people can lean in, including the things you buy and what you tell the political representative.

Right. We have a, we kind of have a vote every time we go to the store or, or not go to the store, I guess, to buy certain products that are cleaner and greener, and saying to manufacturers, Hey, we’re just not going to buy this garbage. and sends a message to them as well. So every choice that we make, if we’re making it more consciously is going to help push the envelope in a good direction.

Well, again, thank you, David, for being on the program. David Doniger, the Natural Resources Defense Council. You know, everybody should check out the NRDC’s website and give generously as they are a nonprofit and do such great work.

You know, and have people like David who are very well versed in this stuff to be able to go to battle with with multi -billion dollar and trillion dollar companies that have essentially endless resources to fight this. And we need well -trained warriors out in the field to litigate these battles. So thank you, David, for doing that.

I appreciate that and we appreciate the support that we get from hundreds of thousands, actually millions of our members. We welcome more.

Yeah, everybody can give more. This is the time to give that, hey, there’s an existential threat here and the time is now.

So everybody follow us on Apple and Spotify and YouTube, aclimatechange .com. If you follow us on those channels, we will plant a tree in the Amazon jungle and the rainforest in your honor. So we can help that cause. And David, best of luck to you going forward. If there’s anything we can do to work with you, please let us know.

Thank you very much for having me on.

Thanks.

(Note: this is an automatic transcription and may have errors in formatting and grammar.)

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