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Michael Oko, 202/513-6245 or cell 202/904-5245
As the U.S. Environmental Protection Agency prepares for an era under new leadership, environmental groups are taking legal action aimed at improving much-needed air pollution controls for almost 50 industries.
Attorneys at Earthjustice and the Natural Resources Defense Council are filing a rulemaking petition and lawsuit today targeting weak and overdue air regulations for 48 industries -- from chemical plants to refineries, paper mills to metal smelters.
The petition, which is being filed jointly by Earthjustice and NRDC, seeks to require unlawfully weak toxic air pollution rules for dozens of industries to conform to protections demanded by the Clean Air Act. The second, a lawsuit filed by Earthjustice, on behalf of Sierra Club, seeks to end years of delay by the outgoing administration in updating air pollution rules for more than two dozen additional industries.
Today's actions follow a steady stream of court findings that Bush-era environmental rules and policies have blatantly violated federal law.
"The Obama administration will have the opportunity to protect Americans against toxic air pollution that causes cancer and other harms, after the courts repeatedly found Bush administration rules broke the law," said John Walke, Clean Air Director for N RDC. "The public stands to benefit from stronger cleanup measures that will reduce carcinogens, smog and soot pollution that plague our communities."
The actions coincide with Senate confirmation hearings for Lisa Jackson, President-elect Barack Obama's pick to head the EPA. As the outgoing administration has failed to take required steps to protect the public, the groups expressed hope that the incoming administration would carry out its Clean Air Act responsibilities to protect the American people against toxic air pollution.
"The rules we're asking EPA to fix cover many of this country's worst toxic polluters," said Earthjustice attorney Jim Pew who is filing today's petition. "It's time for a fresh approach - one that is built around protecting public health instead of polluters' entitlement to continue business as usual."
The industries affected by the challenged regulations emit hazardous air pollutants, including some compounds that are associated with cancer, birth defects, anemia, lung and respiratory harm, damage to the nervous system, liver, kidneys, brain, skin and eyes, as well as other health disorders.
"USA Today's recent investigative report 'The Smokestack Effect' revealed that air outside more than 400 schools nationwide appears to be more toxic than the air at Meredith Hitchens Elementary, a school here in Cincinnati that was recently closed due to air toxics. Parents across the nation are concerned and rightly so," said Marti Sinclair, Chair of Sierra Club's National Air Committee.
The industries outlined in the petition and lawsuit have unlawfully weak, outdated or even nonexistent control requirements. In many instances EPA allowed industrial facilities to emit as much as they like by setting what the agency incredibly called "no control" emission standards for hazardous air pollutants. In other instances, EPA broke the law by setting standards tailored to accommodate the worst polluters rather than meeting the performance of the best and cleanest operations. The environmental groups are asking EPA to bring the pollution control requirements for these industries up to date and into compliance with the Clean Air Act.
"After the Bush administration, some serious housecleaning is in order," said attorney Emma Cheuse at Earthjustice, which filed today's lawsuit. "We've identified eight years' worth of bad air rules that need to be corrected and dozens of polluting industries that are long overdue for lawful regulation. The first step is for EPA to write rules that have been due for years so we can stop playing catch-up on toxic pollution and make the air in our local communities healthier to breathe."
The law requires that EPA set industry air pollution standards that reflect the emission levels currently being achieved by the least-polluting facilities in a given industry. Instead of following the law, in many instances EPA lowered the bar, tailoring weaker thresholds to the dirtiest factories. In addition, the law requires EPA to ensure that the standards use newly available technology and provide enough protection for human health and the environment.
For a copy of the petition being filed jointly with NRDC, please visit: https://www.earthjustice.org/library/legal_docs/mact-petition-for-rulemaking.pdf
For a copy of the complaint in the lawsuit, being filed in federal district court in San Francisco, CA on behalf of Sierra Club, please visit: https://www.earthjustice.org/library/legal_docs/mact-rtr-deadlines-complaint.pdf
NRDC works to safeguard the earth--its people, its plants and animals, and the natural systems on which all life depends. We combine the power of more than three million members and online activists with the expertise of some 700 scientists, lawyers, and policy advocates across the globe to ensure the rights of all people to the air, the water, and the wild.(212) 727-2700
While a DOJ attorney declined to disclose the government's position, one observer said it seems to be: "Stop trying to make us... get rid of the debt ceiling. That sort of thing is for high-level insiders only, not pesky labor unions that are going about it all wrong."
With a "significant gap" remaining between what House Republicans and White House negotiators want to resolve the debt limit fight, a federal judge on Tuesday scheduled a hearing next week for a related lawsuit brought by a union for government workers.
Attorneys for the National Association of Government Employees (NAGE)—which represents about 75,000 workers across federal agencies—sued President Joe Biden and Treasury Secretary Yellen in the U.S. District Court for the District of Massachusetts earlier this month. The union's legal team requested emergency action by the court in a filing on Friday.
During a Tuesday videoconference, Judge Richard Stearns gave the U.S. Department of Justice (DOJ) until May 30 to file a response detailing the department's position on presidential authority relating to the public debt and scheduled a hearing for May 31—the eve of the so-called X-date, or when Yellen warns the government could run out of money.
While NAGE wants a decision from the court before the X-date, Stearns, an appointee of former President Bill Clinton, "sounded skeptical of arguments from the union's lawyers that disaster for the nation is impending if he did not put the case on an even faster track," according toPolitico.
"If the emergency is as dire as you think it is, I would think that it's within the power of the president to address it using executive branch authority," the judge said. He added that "I understand there are time constraints, given that events are developing probably even as we're meeting, that probably make a decision prior to June 1st impossible."
Politico also noted that during the conference, DOJ lawyer Alexander Ely declined to disclose the department's position on whether the 14th Amendment's declaration that "the validity of the public debt of the United States... shall not be questioned" means the president can disregard the debt limit on constitutional grounds.
\u201cAs I read this, the government's position in the suit is:\n\n"Stop trying to make us to get rid of the debt ceiling. That sort of thing is for high-level insiders only, not pesky labor unions that are going about it all wrong."\n\nAh, the eternal cry of elites against activists.\u201d— David Rosen (@David Rosen) 1684867753
Thomas Geoghegan, an attorney for NAGE, said that "what we're faced with, I fear, is that the government doesn't really have a position on this, but there is no time to prevent irreparable injury."
As Common Dreamsreported Monday, Revolving Door Project executive director Jeff Hauser argued that not only should U.S. Attorney General Merrick Garland "refuse to defend the unconstitutional legal incoherence that is the debt ceiling," but also the DOJ should "file papers supporting the National Association of Government Employees' request, and should do so as soon as possible."
"NAGE's argument is sound," Hauser said. "While President Biden may be willing to keep channels open until the very last minute with nihilistic, bad-faith Republican lawmakers, the Justice Department's obligation is to the Constitution, which is unequivocal."
The American Prospect executive editor David Dayen—who has been closely following the case—noted on Twitter that the DOJ and NAGE's formal request for the Tuesday conference states that "defendants intend to file an opposition to plaintiff's emergency motion for preliminary injunction."
Law Dork's Chris Geidner responded that "it's not necessarily opposition to the underlying arguments. It's possible that their opposition is either to a court ordering this or employees, through litigation, ordering them to do so. I'd think it would be unusual for any executive to argue otherwise."
The Tuesday conference came as the head of another union representing federal workers sent a letter to the White House.
"Many federal agencies that deliver services directly to the public, like the Social Security Administration, are already at the breaking point from years of inadequate funding," American Federation of Government Employees national president Everett Kelley wrote to Biden, warning the House GOP's proposed spending cuts "would be an economic and humanitarian calamity."
"I urge you not to yield to threats but instead to heed the advice of many legal scholars who have concluded that you have the inherent power, and indeed the duty, to avoid a default under the Constitution's 14th Amendment," Kelley added. "You have additional authorities to mint platinum coins under 31 USC § 5112. Please use these authorities now before it is too late."
As Matt Bruenig, president of the think tank People's Policy Project, highlighted in a blog post Tuesday, minting the coin isn't Biden's only option—he could also have the Treasury "issue bonds with a face value of $0 that only paid its holders a set amount of interest each year for a certain number of years. In this scenario, people would still buy the bonds in order to receive the interest, but there would be no principal and thus no face value."
"My current thinking on the best way for Biden to deal with the debt limit is to sell zero-principal bonds," Bruenig wrote. "These would not count as debt under the wording of the debt limit statute because they have a $0 face value. If this was challenged, then the administration has three different defenses to the challenge: that zero-principal bonds do not contribute to the debt limit, that the debt limit is unconstitutional, and that illegally selling bonds is no more unconstitutional than illegally raising taxes, selling assets, or cutting spending.
"But whichever course of action Biden chooses," he concluded, "we should be clear that he has other options than agreeing to crack the whip against America's poor."
"Harlan Crow thinks he is the law," remarked one legal expert. "The billionaire and his lawyer apparently believe they get to stop congressional investigations if they so choose."
Legal experts and U.S. Senate Judiciary Chair Dick Durbin on Tuesday derided billionaire Harlan Crow's refusal to answer the panel's questions regarding years of gifts—including luxury vacations and private school tuition—bestowed by the Republican megadonor upon Supreme Court Justice Clarence Thomas and his family.
In a letter to Durbin (D-Ill.) responding to requests for information about the private jet, yacht, and upstate New York resort owned by Crow and his holding companies, Michael Bopp of the law firm Gibson Dunn—which represents Crow—asserted that the Judiciary Committee "has not identified a valid legislative purpose for its investigation and is not authorized to conduct an ethics investigation of a Supreme Court justice."
Durbin responded to Bopp's letter with a statement arguing that the missive "did not provide a credible justification for the failure of Mr. Crow and three corporate entities to respond to the committee's written questions."
"First of all, the committee did not receive individual responses from anyone representing the three companies," Durbin said. "That is untenable since the gifts and access to justices that these companies provided are highly relevant to the committee's legislative efforts on ethics reform."
\u201cSCOOP: Here's the letter that Justice Clarence Thomas's benefactor Harlan Crow sent to the Senate Judiciary Committee last night. His lawyers, from top firm Gibson Dunn, are arguing Congress doesn't have the authority to investigate the Supreme Court.\n\nhttps://t.co/PAtQvK7a8S\u201d— Emily Birnbaum (@Emily Birnbaum) 1684861388
"Second, the letter claims that Congress lacks authority to enact ethics legislation that applies to Supreme Court justices—a claim belied by multiple congressionally enacted ethics laws that Chief Justice [John] Roberts highlighted as applying to Supreme Court justices in his April 25 'Statement on Ethics Principles and Practices,'" Durbin continued.
"Further, Mr. Crow's letter relies on a separation of powers defense when Mr. Crow does not work, and has never worked, for the Supreme Court," the senator added. "Harlan Crow believes the secrecy of his lavish gifts to Justice Thomas is more important than the reputation of the highest court of law in this land. He is wrong."
Chris Geidner, a former legal editor and Supreme Court correspondent for BuzzFeed News, wrote on his Law Dork Substack:
What is perhaps most remarkable about the letter is not even its dismissal of the congressional oversight request—which absolutely must be followed at the earliest possible moment by the committee's issuance of a subpoena—but, rather, the underlying basis for that decision. In the letter, Bopp concludes—again, on Crow's behalf—that "Congress lacks the authority" to pass ethics legislation relating to the Supreme Court.
Bopp cannot state that as a matter of law—and dismiss Durbin's request based on that knowledge. This is so because Chief Justice John Roberts himself has acknowledged that Congress has already passed ethics legislation that applies to the justices. What's more, Roberts also explained in 2011 that the court has never addressed whether Congress can do so but that the justices "nevertheless comply with those provisions."
"Harlan Crow thinks he is the law," Geidner contended. "The billionaire and his lawyer apparently believe they get to stop congressional investigations if they so choose."
\u201cthe tl;dr of this letter is "the separation of powers means supreme court justices can do whatever they want & congress can't do shit about it."\n\n(can't wait to read neil gorsuch's ~fantastico~ rewriting of this into a supreme court opinion.)\u201d— Leah Litman (@Leah Litman) 1684863630
MSNBC legal analyst Jordan Rubin, a former Manhattan prosecutor, quipped that Crow's "arrogant and misguided" response to Durbin "practically begs for a subpoena."
Rubin's remarks echo
progressive calls to subpoena both Crow and Thomas.
In addition to Durbin, Senate Finance Committee Chair Ron Wyden (D-Ore.) has also asked Crow to account for gifts he gave to Thomas and his family, and called the billionaire's rationale for not doing so "a joke."
"The bottom line is that nobody can expect to get away with waving off finance committee oversight, no matter how wealthy or well-connected they may be," Wyden said earlier this month.
"I urge you not to yield to threats but instead to heed the advice of many legal scholars who have concluded that you have the inherent power, and indeed the duty, to avoid a default," wrote AFGE's leader.
A union leader representing over 750,000 government employees on Tuesday pressured U.S. President Joe Biden to reject congressional Republicans' demands for spending cuts in exchange for raising the debt ceiling and to avert an economically devastating default by invoking the 14th Amendment to the Constitution.
As Treasury Secretary Janet Yellen has continued to warn that the federal government could run out of money to pay its bills as early as June 1, some legal scholars and progressive lawmakers have encouraged Biden to combat the GOP's economic hostage-taking by invoking the section of the amendment which states that "the validity of the public debt... shall not be questioned."
The American Federation of Government Employees, AFL-CIO (AFGE) joined those calls on Tuesday, with national president Everett Kelley writing to Biden to call for "unilateral action to ensure that the government continues to pay its bills and fulfill its obligations after the Treasury exhausts all extraordinary debt measures within the next several days."
"Our union members are the doctors, nurses, firefighters, border patrol agents, corrections officers, federal police, food safety inspectors, transportation security officers, and other public servants who keep the government running around the clock," Kelley noted. "They served tirelessly throughout the pandemic, defending the public, often at great personal risk. More than a few gave their lives to their country. It would be unconscionable now to agree to a budget deal that once again sacrifices their well-being on the altar of fiscal austerity."
"We urge you not to agree to spending caps because, inevitably, they undermine the ability of federal agencies to carry out their missions."
"We urge you not to agree to spending caps because, inevitably, they undermine the ability of federal agencies to carry out their missions and result in further unwarranted cuts to federal jobs and compensation," the union leader stressed, taking aim at a key demand of House Speaker Kevin McCarthy (R-Calif.) and fellow Republicans, who passed their so-called Limit, Save, Grow Act late last month.
Noting that "many federal agencies that deliver services directly to the public, like the Social Security Administration, are already at the breaking point from years of inadequate funding," Kelley warned that they "can in no way withstand further budget cuts of the magnitude proposed by House Republicans in the morally bankrupt 'Limit, Save, Grow Act.' This bill, even in the most diluted form, would be an economic and humanitarian calamity."
"Clearly a default must be avoided at all costs," he added. "I urge you not to yield to threats but instead to heed the advice of many legal scholars who have concluded that you have the inherent power, and indeed the duty, to avoid a default under the Constitution's 14th Amendment. You have additional authorities to mint platinum coins under 31 USC § 5112. Please use these authorities now before it is too late."
Before returning to Washington, D.C. to continue negotiations with McCarthy, Biden told reporters on Sunday that "I think we have the authority" to invoke the 14th Amendment but given the potential for a legal challenge," the question of whether it could be done in time to prevent a default "is unresolved."
\u201cQ: "It sounds like the White House is now ruling out invoking the 14th Amendment as an option to get around the debt ceiling. Is that accurate?" \n\n@PressSec: "It is not going to fix the current problem that we have right now..."\u201d— CSPAN (@CSPAN) 1684871442
Politicoreported Friday that some Biden aides worry that "even the appearance of more seriously considering the 14th Amendment could blow up talks that are already quite delicate," and actually doing so could "trigger a pitched legal battle, undermine global faith in U.S. creditworthiness, and damage the economy."
Kelley's letter came as a federal judge scheduled a debt limit lawsuit hearing for May 31, the day before the so-called X-date. That case—filed by another union, the National Association of Government Employees, against Biden and Yellen—cites the 14th Amendment and aims to have the debt limit statute deemed unconstitutional.