New York’s Good Environmental Intentions Unsullied by Reality

From Climate Etc.

by Roger Caiazza

However noble the concept of eliminating any risks from any source of pollution, if it is construed to mean that anything that might be contributing to bad health must be prohibited, then there will be massive consequences.

My entire career as an air pollution meteorologist has been devoted to upholding the Clean Air Act (CAA).  Several New York initiatives are combining to undermine the very foundation of that law.  Furthermore, these initiatives are contrary to the premise of my Pragmatic Environmentalist of New York blog that practical tradeoffs of environmental risks and societal benefits are necessary for workable solutions.  This post describes the initiatives and what I believe will be the inevitable consequence.

I have extensive experience with air pollution control theory, implementation, and evaluation over my entire career.  I write about New York energy and environmental issues at the Pragmatic Environmentalist of New York blog.  The opinions expressed in this post do not reflect the position of any of my previous employers or any other company I have been associated with; these comments are mine alone.

Background

It has been over 50 years since Congress established the basic structure of the Clean Air Act in 1970.  The EPA summary describes control of common pollutants:

“To protect public health and welfare nationwide, the Clean Air Act requires EPA to establish national ambient air quality standards for certain common and widespread pollutants based on the latest science. EPA has set air quality standards for six common “criteria pollutants“: particulate matter (also known as particle pollution), ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, and lead.”

“States are required to adopt enforceable plans to achieve and maintain air quality meeting the air quality standards.   State plans also must control emissions that drift across state lines and harm air quality in downwind states.”

“Other key provisions are designed to minimize pollution increases from growing numbers of motor vehicles, and from new or expanded industrial plants.  The law calls for new stationary sources (e.g., power plants and factories) to use the best available technology, and allows less stringent standards for existing sources.”

My first professional job in 1976 was with a consulting company that did contract work for the Environmental Protection Agency developing emission factors that could be used to analyze and project impacts to public health and welfare.  Later I worked for other consultants that evaluated the air quality dispersion models to make sure they provided adequate estimates of predicted air quality impacts from polluting sources.  Eventually I went to work for an electric utility where I was responsible for maintaining air quality compliance at their facilities.  All my work was a tiny part of the national effort to develop a robust methodology to protect public health and welfare nationwide.  On behalf of all my colleagues, I want to say that it is a pretty darn good system.

The goal of the regulatory process is to maintain air quality impacts below the National Ambient Air Quality Standards (NAAQS).  The Clean Air Act established two types of national air quality standards.  The primary standards protect public health with an adequate margin for safety.  The secondary standards are “designed to protect the public welfare from adverse effects, including those related to effects on soils, water, crops, vegetation, man-made (anthropogenic) materials, animals, wildlife, weather, visibility, and climate; damage to property; transportation hazards; economic values, and personal comfort and wellbeing”.  The entire point of this background section is that United States air quality regulation is built around the concept that there is a threshold for adequate safety and if the measured or projected air quality is below those standards then public health is protected.

New Paradigm

In the past several years the Precautionary Principle, a strategy to cope with possible risks where scientific understanding is incomplete, has led many to rely on the idea that to be safe we have to eliminate all risks as a precaution.  At its core that means that there is no such thing as a threshold for adequate public health safety.

David Zaruk has explained the resulting problem: policy-makers and politicians have confused this uncertainty management tool with risk management.  He authors the Risk Monger blog “meant to challenge simplistic solutions to hard problems on environmental-health risks”. He is a professor at Odisee University College where he lectures on Communications, Marketing, EU Lobbying and Public Relations.

I recently compared Zaruk’s analysis of this approach to risk management in the European Union relative to New York’s Climate Leadership and Community Protection Act (Climate Act) implementation.  He explained that “patronizing activists with special interests solely dedicated to seeing industry and capitalism fail is destroying trust in all industries (excluding them from the policy process and equating the word “industry” with some immoral interpretation of lobbying)”.  The activists are using the same tactics that worked with the decline of the tobacco industry: “Using the emerging communications tools to create an atmosphere of fear and hate, these activists have successfully generated a narrative that the only solution to our problems is no risks and no thresholds.”  Policymakers, perceiving these loud voices as representative, have adopted the path of virtue politics rather than Realpolitik (that is to say policy by aspiration and ideology rather than practical solutions relying on the best available evidence).

Three Zero-Risk Initiatives

There are three examples of initiatives in New York that rely on the zero-risk approach.  The Climate Act has a net-zero by 2050 goal that presumes that all GHG emissions have risks and must be eliminated.  The New York Department of Environmental Conservation (DEC) has an Environmental Justice initiative.  It includes Commissioner Policy 29 (CP-29) that provides guidance for incorporating environmental justice concerns into DEC environmental permit review process and the DEC application of the State Environmental Quality Review Act (SEQR).  Finally, in November 2021, New York State passed an Environmental Rights Amendment to the New York constitution.  It added  a new section to the state constitution that reads: “Each person shall have a right to clean air and water, and to a healthful environment.  This Amendment will be the focus of this article.

I was prompted to write this article after reading Celebrating the 1-Year Anniversary of the New York Environmental Rights Amendment, written by a litigation assistant at Earth Justice.  This article includes a link to a webinar: “The environmental rights amendment: by and for New Yorkers” that lays bare the planned use of the Equal Rights Amendment to further the agenda of New York activists who apparently want to see industry fail.  I don’t claim that they necessarily want industry to fail but their expectation that aspirational environmental demands based on ideology are compatible with overall societal needs is naïve, such that the end result of their vision will be the shutdown of all industry including power generation.

The four webinar speakers were Anthony Rogers-Wright, New York Lawyers for the Public Interest; Rebecca Bratspies, City University of New York School of Law; Maya van Rossum, Green Amendment for the Generations & Delaware Riverkeeper Network; and Michael Youhana, Earthjustice.  I am comfortable saying that these folks epitomize the special interest activists described by Zaruk.

I suggest that anyone interested in this issue take the time to listen to the entire webinar.  I am not going to dissect every speaker’s presentation, but I do want to highlight the comments of Professor Bratspies starting at 15:46 of the recording.  She was asked how the Environmental Rights Amendment could be used to influence decision making.

Bratspies explained that environmental justice is about “fair treatment and meaningful involvement” of people in decision making that affects them.  She believes that the New York regulatory program is about process and not substance.  People get to participate but they “have no substantive hook” to affect the outcome.  She referred to a Supreme Court decision that “prohibits uninformed rather than unwise decision making.”  She said that the Environmental Rights Amendment changes that because it puts fair treatment of how environmental burdens and benefits are distributed on the table:  “Now it is not just about process, it is about substance.”  She then stated that now there is a substantive right to a clean environment, not just a right to participate in the process.

She went to explain that the Amendment creates new possibilities for challenging “unequal” decisions.  As an example, she thinks this can be used when permitting decisions are made.  The following is a lightly edited version of her end game explanation starting at 17:55 of the  webinar recording:

“All the polluting infrastructure in New York City requires permits from the government in order to operate.  Those permits specify levels of pollution that facility is allowed to emit.  Those levels of pollution are set based on a pretty complicated formulas about national standards.  But now the people who live nearby who have been so long viewed as in energy sacrifice zones can go in and say that I have the right to breathe clean air.  You can’t let this facility emit so much pollution that it impacts my ability to breath clean air.  My kids have the right to not have asthma.  Pollution and asthma are intimately intwined.“

This interpretation of the Environmental Rights Amendment presumes that it is supposed to provide assurance of good health (e.g., no asthma) for all.  Individuals in EJ communities near existing sources of air pollution believe that poor health outcomes are attributable to those sources based on environmental activist studies.   They do not understand the proven NAAQS protections for the population.  Activists have stoked their fears by funding projections that claim there is no threshold for health impacts and that there is a relationship between health impacts and ambient concentrations below the NAAQS standards.

At its core, this argument relies on a zero-risk approach.  Bratspies espouses the view that the NAAQS are not protective of human health because pollutants are still emitted and present in the air.  She believes that asthma observed in EJ neighborhoods must be caused by local facilities.  The fact that there are decades of experience that support the ambient air quality standards and the methodologies used to ensure that no one is subjected to air quality over those standards are immaterial.  New York City EJ activists, like all the speakers on the webinar, believe the PEAK coalition conclusion that “Fossil peaker plants in New York City are perhaps the most egregious energy-related example of what environmental injustice means today.”  Unfortunately, the analysis that forms the basis of that conclusion is flawed.  The health impacts claimed are for ozone and inhalable particulates that are secondary pollutants that form far downwind of the adjoining neighborhoods.  Bratspies believes that air pollution and asthma are “intimately intwined” but does not acknowledge that ambient air pollution levels have gone down over the same period that asthma rates have gone up.

This approach threatens the viability of any facility that emits pollution  From the get go, if clean air is defined as zero then no emissions from power plants are allowed.  But where does it end?  No emissions from natural gas for heating or cooking?  No emissions from the cooking process itself? If you can smell something cooking, that is a volatile organic compound pollutant that is a precursor to ozone which is regulated by the Clean Air Act.  The intentions of the Environmental Rights Act are good but they are also based on an incomplete understanding of the situation and science.

The other two initiatives have similar issues.  New York’s Climate Act has an aggressive schedule that mandates a zero-emissions or zero-risk electric generating sector by 2040.  Buried in the law is a requirement that State agencies are supposed to consider the Climate Act requirements in their actions.  Late last year the DEC issued a policy document that outlines the requirements for Climate Act analyses as part of the air pollution control permit applications.  As part of the zero-risk mindset even the risks of a permitted source somehow affecting Climate Act implementation must be addressed and discussed even though there are no specific promulgating regulations.

Finally, the DEC Environmental Justice initiative includes Commissioner Policy 29 (CP-29) that provides guidance for incorporating environmental justice concerns into DEC environmental permit review process.  The guidance explicitly addresses the need for meaningful public participation by minority or low-income communities in the permit process; the availability or accessibility of certain information to the public early in the permit process; and the need for the permit process to address disproportionate adverse environmental impacts on minority and low-income communities.  Based on the webinar this is still insufficient for the activists because it does not guarantee the right to clean air and a healthful environment.

Conclusion

However noble the concept of eliminating any risks from any source of pollution, if it is construed to mean that anything that might be contributing to bad health must be prohibited, then there will be massive consequences.

A zero-risk standard sets a high hurdle for permitting a new facility or keeping an existing source in operation.   All applicants follow the existing permitting requirements demonstrating that their facility does not exceed the applicable air quality standards.  New York’s new permitting guidance then requires public hearings and consultation with stakeholders whose goal is no risk.  At the very least the permitting process is slowed down to go through more public stakeholder steps, which adds time and expenses for the source owners. When the activists say “It is not just about process, it is about substance” what they mean is we must get the answer we want and if we don’t, it is clear from the webinar that their planned response is to litigate on the grounds of the right to clean air.

Going to court always adds time and expense but could also shut down the state.  The court is going to have to decide what clean air means.  It is easy to see an argument that a standard must be developed but once that approach is initiated, it is hard to imagine a new standard that is more defensible than the existing NAAQS.  We already have a process to evaluate permits relative to those standards so what is the point? Rationally I would hope that the court would decide in favor of the Clean Air Act but who knows.  If the definition of clean air and water is zero pollution, then the State might as well shut down now because nothing meets that standard.

There is no question that past inequities in environmental burdens were wrong and should be avoided in the future.  Nor is there any question that everyone deserved the right to clean air and water.  The problem is that if this good intentioned solution insists on zero risk, then the reality is that it requires no emissions.  If no tradeoffs are allowed then the only solution is to shut down or not build.

Thanks to Russell Schussler for comments and the title.