Comments on NHTSA’s DEIS Oct 23, 2018
Andrew J. Yamamoto, Esq., Editor, Scott D. Pinsky, Esq., Environmental Law Editor, and Manvir Dhaliwal, intern, InternationalMosaic.com
Re: Draft EIS for the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for MY 2021-2026 Passenger Cars and Light Trucks (https://www.regulations.gov/document?D=NHTSA-2017-0069-0178)
Both individually and as editors or intern of InternationalMosaic.com, we object to the Draft EIS for the proposed degradation of future mileage standards (Proposed Repeal) for many reasons.
The first seven reasons for our objections are set forth in an attachment hereto (and were also attached to the second set of comments submitted on September 16, 2018: Comment Tracking Number: 1k2-95gl-ekit). Additional bases for objection are:
(8) The mountain of scientific evidence that supports that Obama-era mileage standards are necessary has grown. Since InternationalMosaic.com submitted its last comments, United Nation officials have provided alarming evidence that the world, and the USA in particular, must dramatically accelerate efforts to reduce fossil fuel use far more than contemplated under existing laws. On October 8, 2018, The Guardian reported:
“The world’s leading climate scientists have warned there is only a dozen years for global warming to be kept to a maximum of 1.5C, beyond which even half a degree will significantly worsen the risks of drought, floods, extreme heat and poverty for hundreds of millions of people.
“The authors of the landmark report by the UN Intergovernmental Panel on Climate Change (IPCC) released on Monday say urgent and unprecedented changes are needed to reach the target, which they say is affordable and feasible although it lies at the most ambitious end of the Paris agreement pledge to keep temperatures between 1.5C and 2C.
“The half-degree difference could also prevent corals from being completely eradicated and ease pressure on the Arctic, according to the 1.5C study, which was launched after approval at a final plenary of all 195 countries in Incheon in South Korea that saw delegates hugging one another, with some in tears.”
https://www.theguardian.com/environment/2018/oct/08/global-warming-must-not-exceed-15c-warns-landmark-un-report (PDF copy submitted with these comments).
The Guardian continued: “Even half degree of extra warming will affect hundreds of millions of people, decimate corals and intensify heat extremes, report shows”
https://www.theguardian.com/environment/2018/oct/08/world-leaders-have-moral-obligation-to-act-after-un-climate-report (PDF copy submitted with these comments). Cf. https://www.npr.org/2018/10/08/655360909/grim-forecast-from-u-n-on-global-climate-change (PDF copy submitted with these comments).

The recent UN conclusions add to the overwhelming evidence that urgent action is needed. See, e.g., IPCC, Climate Change 2013: The Physical Science Basics, http://www.ipcc.ch/report/ar5/wg1/ ; IPCC, Climate Change 2014: Synthesis Report, http://ar5-syr.ipcc.ch/.
NEPA requires that NHTSA “fess up” to the cataclysmic environmental consequences of the Proposed Repeal. In short, NHTSA cannot approve the Proposed Repeal without a new DEIS that fully discloses the adverse environmental impacts of the Proposed Repeal.
(9) The ongoing production of important scientific information shows that the consideration of any DEIS for the Proposed Repeal be delayed until June 30, 2019. That will be approximately 6 months after an international conference on the issue (to be held in Katowice, Poland). https://unfccc.int/process-and-meetings/conferences/katowice-climate-change-conference-december-2018/katowice-climate-change-conference-december-2018 A PDF copy of information about the conference is attached
(10) The cumulative effects of the Proposed Repeal when coupled with other known major federal actions was not disclosed in the DEIS and must be. Such other actions include, but are not limited to, the EPA’s plan to allow drillers to release much more methane (a potent climate changing chemical) and the Proposal to Limit Use of Scientific Evidence in Rulemakings, 83 Fed. Reg. 18,768 (April 30, 2018) – Docket ID No. EPA-HQ-OA-2018-0259. Articles about the methane issues include: https://www.reuters.com/article/us-usa-epa-methane/trumps-epa-proposes-weaker-methane-rules-for-oil-and-gas-wells-idUSKCN1LR2BK, https://www.nytimes.com/2018/09/10/climate/methane-emissions-epa.html, (PDF copies of the articles are being submitted with these comments) . The NHTSA should withdraw its DEIS and acknowledge it is invalid.

(11) The DEIS fails to recognize that the Proposed Repeal will cost consumers billions of dollars. The Trump administration concedes the inefficiency of car engines will cost consumers $133 billion just to keep their gas tanks full (https://www.bloomberg.com/news/articles/2018-08-02/u-s-proposes-easing-auto-mileage-rules-california-s-authority). Moreover, according to an analysis done by the Consumers Union, new vehicle consumers would save about $3,200 per car and $4,800 per truck or SUV if President Obama’s standards are met by 2025 https://consumersunion.org/wp-content/uploads/2016/09/Fueling-Savings-Consumer-Savings-from-CAFE-2025-Final-1.pdf (copy attached)
(12) The DEIS fails to recognize that the Obama era mileage rules will create jobs and fails to recognize that the Proposed Repeal will cause America to forego the creation of thousands of jobs. 43,000 out of the 484,000 new jobs opened in the U.S. by 2030, would be full time in the auto sector and 49 states will obtain net job gains as proven in the “More Jobs per Gallon” report done by the independent research firm Management Information Services Inc. (https://www.forbes.com/sites/ericagies/2011/08/05/obamas-stricter-fuel-efficiency-standards-will-save-money-create-jobs-say-report/#3d6065267f8b). (PDF copy attached)

(13) The DEIS is fatally flawed because it fails to acknowledge that the EPA has underestimated methane gas emissions by energy companies. https://www.reuters.com/article/us-usa-methane/u-s-oil-gas-system-methane-leaks-larger-than-epa-estimates-study-idUSKBN1JH2TP (PDF copy attached). This error undercuts and invalidates DEIS because DEIS understates the climate change impacts of the Proposed Repeal by ignoring the repeal’s climate change impact by increasing fossil fuel extraction (the consequences of which are in addition to those of increased vehicle emissions).
(14) Hurricane Michael’s destruction this fall shows the dramatic impact of climate change. A PDF copy Wikipedia’s report on Michael is attached. Michael is just the latest of a long series climatic disasters that show that America must immediately reduce its reliance on fossil fuels. As Professor Kim Cobb, the link between climate change and a long series of hurricanes is clear. https://www.washingtonpost.com/outlook/2018/10/14/hurricanes-like-michael-show-why-we-cant-ignore-climate-change/?noredirect=on&utm_term=.091a0ba3eb6b (PDF copy attached).
The DEIS should be re-written to acknowledge that the vast majority of scientists have concluded that the Proposed Repeal and similar federal actions will cause an increase in hurricanes hitting America The continued news about hurricanes underscores the irresponsible nature of the DEIS’s repeated irresponsible efforts to downplay the patent significance

Andrew J. Yamamoto, Esq., Editor, Scott D. Pinsky, Esq., Environmental Law Editor, InternationalMosaic.com have submitted comments on the “Draft EIS for the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for MY 2021-2026 Passenger Cars and Light Trucks” (https://www.regulations.gov/document?D=NHTSA-2017-0069-0178)

[Although there were  some technical problems  submitting today’s comments, they were in  substance as follows.]

Both individually and as editors, the editors of InternationalMosaic.com object to the Draft EIS for proposed degradation of future mileage standards (Proposed Repeal) for, inter alia, the following reasons.
(1) The DEIS systematically understates the risks of the Proposed Repeal. At a minimum, the DEIS should concede that the action will increase emissions of climate changing gases and cumulative effect of the repeal may be the increase in catastrophic weather events like Hurricanes, Florence, Harvey and Maria. With respect to Harvey, Wikipedia says: “Warmer air can hold more water vapor, in accordance with the Clausius–Clapeyron relation, and there has been a global increase of daily rainfall records. Regional sea surface temperatures around Houston have risen around 0.5 °C (0.9 °F) in recent decades, which caused a 3–5% increase in moisture in the atmosphere. This had the effect of allowing Harvey to strengthen more than expected.[172] The water temperature of the Gulf of Mexico was above average for this time of the year, and likely to be a factor in Harvey’s impact.[173] Within a week of Harvey, Hurricane Irma formed in the eastern Atlantic, due to the similar conditions involving unusually warm seawater. Some scientists fear this may be becoming a ‘new normal’. Also higher sea-water temperatures can make hurricanes more devastating.
“The slow movement of Harvey over Texas allowed the storm to drop prolonged heavy rains on the state, as has also happened with earlier storms.[ Harvey’s stalled position was due to weak prevailing winds linked to a greatly expanded subtropical high pressure system over much of the US at the time, which had pushed the jet stream to the north. Research and model simulations have indicated an association between this pattern and human-caused climate change (internal links omitted).” https://en.wikipedia.org/wiki/Hurricane_Harvey#Climate_change

(2) The DEIS is fatally flawed (and must be replaced with a new draft EIS) because it does not consider any alternatives that improve vehicle gas mileage more than the present set of standards. Instead, the DEIS only considers the “no project option” and seven alternatives that ratchet up the production of climate changing gases. The attached July 2012 final EIS for the current system expressly considered a reasonable pro-climate option. See page 2-14. In view of last year’s hurricanes Harvey and Maria and today’s Florence, both the NEPA and common sense require NHTSA to fully and publicly consider a few options that require at least a seven annual percent improvement in vehicle fleet mileage.

(3) The DEIS is fatally flawed (and must be replaced with a new draft EIS) because it does not consider any market-based alternatives (e.g., a “cap and trade” type option). See Wikipedia https://en.wikipedia.org/wiki/Emissions_trading (discussing “cap and trade” systems).

(4) The ongoing Hurricane (now storm) Florence also provides new evidence that must be considered in a new draft EIS. On September 13, 2018, the Washington Post reported: “In the case of Hurricane Florence and the Carolinas, some six inches of the coming storm surge is attributable to climate change because sea levels have risen in the past 100 years or so.” https://www.washingtonpost.com/energy-environment/2018/09/13/no-brainer-climate-change-has-made-hurricane-florence-worse/?for-guid=4264d5f5-26bb-e511-8a53-90b11c3d639b&utm_campaign=narrative&utm_medium=email&utm_source=usatoday-Climate%20Point&utm_term=.16474520865a

(5) The EPA plans to allow well owners to increase their release of methane, a potent climate change chemical. See EPA Announces Proposal to Roll Back Obama-Era Rules on Methane Emissions, Wall Street Journal, September 15, 2018. https://www.wsj.com/articles/epa-announces-proposal-to-rollback-obama-era-rules-on-methane-emissions-1536702464  Given that the methane decision will impact the climate in a manner similar to vehicle emissions, the new DEIS must consider the cumulative effects of the vehicle emission and methane rules. Truth be told, the DEIS, and the EIS for every major federal action that will increase the production or release of climate changing elements or compounds, must fully analyze and disclose the cumulative effect of the action when aggregated with the effect of all other human activities

(6) The DEIS improperly fails to disclose the serious cost to American consumers that will result from worsened fuel mileage. EPA estimates that, if its preferred plan is adopted, an extra 206 billion gallons of fuel will be used from 2010 to 2050. DEIS, page S-6. While fuel costs vary, and assuming each gallon costs 4 dollars and assuming zero climate impact, the proposed action would cost 824 billion dollars.
Cf. U.S. Energy Information Administration, Weekly Retail Gasoline and Diesel Prices, https://www.eia.gov/dnav/pet/pet_pri_gnd_dcus_y05la_w.htm (survey L.A. prices).

(7) The DEIS should disclose that EPA’s proposed regulatory rollback will not improve vehicle safety. Washington Post, August 15, 2018, “The Trump administration said weaker fuel standards would save lives. EPA experts disagree” (https://www.washingtonpost.com/energy-environment/2018/08/15/trump-administration-said-weaker-fuel-standards-would-save-lives-epa-experts-disagree/?utm_term=.ad4d6c40a73a) ‘ To quote “EPA’s internal analysis[,] …freezing the Obama-era rules would lead to slightly more fatalities (seven for every trillion miles driven), cost jobs, and in economic terms, have a net negative impact of $83 billion.” Obviously, both the proposed Regulatory Rollback and the DEIS should be withdrawn.

Less than thirty minutes before the “witching hour” when the comment period ended, InternationalMosaic.com submitted it’s last set of comments. As in  the past, the substance of the comments is below, but we apologize for some glitches in formatting and any missing quotation marks.

“The proposed regulation will undercut the ability of EPA (including future EPA administrators) to protect the public pursuant to the SDWA and TSCA. The breadth of the proposed regulation is is shown in part by reviewing the chemicals covered by the two acts. See, e.g., The non-confidential list of 67951 TSCA chemicals, https://www.epa.gov/tsca-inventory/how-access-tsca-inventory , the list of hazardous wastes, https://www.epa.gov/hw/defining-hazardous-waste-listed-characteristic-and-mixed-radiological-wastes

, SDWA Regulations, https://www.epa.gov/ground-water-and-drinking-water/national-primary-drinking-water-regulations, PDF copy of list, https://www.epa.gov/sites/production/files/2016-06/documents/npwdr_complete_table.pdf

“Moreover, in addition to being bad for the environment, SDWA and TSCA lists mark the starting points for the required EIS that EPA must prepare, as required by NEPA, before the regulation is approved.”

The substance of this morning’s comment is below.

In general, before approving the proposed regulation, NEPA requires EPA to prepare a thorough EIS for the project. In a discussion entitled: “What is included in an EIS?”, EPA outlines the EIS requirements. https://www.epa.gov/nepa/national-environmental-policy-act-review-process#EIS The requirements include: “Alternatives: Consideration of a reasonable range of alternatives that can accomplish the purpose and need of the proposed action.”

Although the documents that EPA presented in support of the proposed regulation fall far short of what NEPA requires in many ways, the most obvious deficit may be the EPA’s failure to meaningfully discuss reasonable alternatives to the proposed action. In the present case, as a consequence of “Anti-Environment” regulation’s extraordinary breadth, NEPA requires EPA to prepare an EIS which reviews and discusses the many reasonable (and often patently superior) alternatives to the proposed regulatory action.

While courts sometimes differ on the necessary scope of alternatives, it is clear that even a minimal EIS should discuss several alternatives. The proposed regulation lists 8 different statutes
(i.e., CAA, CWA, SDWA, RCRA, CERCLA, EPCRTKA, FIFRA, and TSCA ) it will impact. See proposed regulation Federal Register, Vol. 83, No. 83 pg. 18769. Clearly, a reasonable discussion of alternatives would compare the proposed action’s impacts with an alternative that impacts only 1 statute. Another alternative would apply to two of the listed statutes. Put simply each permutation of these statutes less than 8 statutes ought to be fully discussed in the EIS as a reasonable alternative. The EPA only has itself to blame for the complexity of the requisite EIS because it alone proposed a regulation that would affect 8 important statutes in one regulation.
Another alternative would be to authorize the EPA inspector general to expeditiously review any claims of bias.

Still another alternative that could be examined is to (at the regulated industries’ expense) have a shadow agency do an independent investigation of all proposed regulations. Depending on how the shadow agency was constructed it could be like shadow cabinets in Britain.

Given that the ostensible purpose of the proposed regulation is to increase the “transparency” in EPA decision making, a reasonable alternative would be to require each person expressing a position on a EPA action to disclose her or his salary and/or compensation for that statement and for any supporting study. This could be similar to what a party may discover about an expert witness offered in federal court. This would allow the public to act as more informed participants in any debate.

As the August 16, 2018 comment deadline approaches, the public, including the editors of InternationalMosaic.com may have to accelerate their efforts. The substance of this morning’s comment is below.

Dr. Frank Kline, a psychiatrist who has taught at both the University of Southern California and the University of California, Irvine, said the following:

“Statement of Frank Kline, M.D.
August 13, 2018

“I am a psychiatrist who spent 13 years as professor at USC’s Medical School and 13 years as professor of psychiatry at the University of California at Irvine. I have served as a medical officer in the United States Army and have worked in public clinics. During my career, I have written and/or reviewed numerous papers, speeches, studies and books concerning biomedical research.

“Based on my experience it is my professional opinion that good medical studies often require that the identity of individual test subjects be kept confidential. Many test subjects refuse to participate in studies if they know that their identity and personal medical information will not be protected.

“Studies done on human subjects where the subjects’ privacy is not protected may produce false or biased results.”
Dr. Kline’s statement underscores the need to protect test subject privacy in all good biomedical research. The statement unveils the true folly of proposed regulation.

Equally important, the statement shows that the proposed regulation may warp future EPA regulations by forcing the EPA to turn a “blind eye” towards good scientific studies merely because the studies’ investigators protect the privacy of their test subjects. The adverse environmental impacts may be horrific and require full disclosure in the NEPA required EIS.

“The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress on December 11, 1980. This law created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. ” EPA, Superfund: CERCLA Overview, https://www.epa.gov/superfund/superfund-cercla-overview While the space allotted to this comment does not permit a thorough discussion of CERCLA’s history, EPA discusses the many chemical spills that led to CERCLA and includes computerized graphics at this address: https://www.epa.gov/superfund/superfund-history

The EPA’s numerous CERCLA regulations are in print in the CFR. Electronic versions can be found at https://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR (official) or https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=d5cf8817453753f37820f1e458cfd52a&ty=HTML&h=L&mc=true&n=pt40.30.307&r=PART (unofficial, but more current).

The adoption or amendment of numerous EPA regulations require good scientific data including private medical data protected by privacy laws such as HIPAA, as well as data that is private and or difficult to reproduce for other reasons (for example, endangered wildlife surveys that may not be able to be repeated without impermissibly harming the wildlife or studies that require access to private land).

Examples of such good data and studies that led to CERCLA and/or the related regulations include: https://www.health.ny.gov/environmental/investigations/love_canal/lcreport.htm

Click to access report_public_comment_final.pdf

https://archive.epa.gov/epa/aboutepa/love-canal-tragedy.html
http://www.gendisasters.com/new-jersey/13273/logan-township-nj-chemical-explosion-dec-1977

As an example of a regulation that may not have been adopted if the proposed regulation was in effect, 40 CFR Part 355 Sub Part C Section 355.33 provides:

§355.33   What release quantities of EHSs and CERCLA hazardous substances trigger the emergency release notification requirements of this subpart?
The release of a reportable quantity (RQ) of an EHS or CERCLA hazardous substance within any 24-hour period triggers the emergency release notification requirements. RQs for EHSs are listed in Appendices A and B of this part in the column labeled “reportable quantity.” RQs for CERCLA hazardous substances are listed in Table 302.4 of 40 CFR 302.4 in the column labeled “final RQ.”
Obviously, any revision of the rule or of the RQs listed in “Table 302.4 of 40 CFR 302.4 in the column labeled ‘final RQ’” would require a good scientific basis. That would include data protected by privacy laws such as HIPAA.

By forcing EPA to ignore such private (and appropriately non-public) data, the proposed anti-environment rule is fiendishly calculated to block the EPA staff from considering the best data available.   As is true with respect to FIFRA, as regards CERCLA, this scheme has at least two devastating flaws.

First, the proposed rule will nonsensically bar EPA from considering the best scientific data available disabling EPA rulemaking. This rule would violate the agency’s common sense and statutory duty to consider the sound scientific data. Put simply, the proposed regulation turns the statutory scheme of CERCLA upside down by forcing to ignore data that EPA can use to prevent Love Canal type disasters in the future.

Second, before EPA approves its proposed regulation, NEPA requires that EPA prepare an EIS. That EIS must include a detailed analysis of each chemical listed in “Table 302.4 of 40 CFR 302.4 in the column labeled ‘final RQ’” Such analysis of each chemical should include: the quantity of the chemical that was stored, used or released on each and every CERCLA site, the number of people living, playing or working near each site, the human toxicity of the chemical, the non-human affect of the chemical on the flora and fauna within wind’s reach of the site, and the the site’s impact on groundwater underlying every site.

Taken alone, each legal flaw is sufficient to compel the conclusion that EPA should reject its proposed “Anti-Environment” Regulation.

Yesterday’s front page of the Los Angeles Times feature an important story about a Ninth Circuit Court of Appeals decision concerning chloropyrifos. The prominence of the article reaffirms the importance  of controlling the use of pesticides.

Coincidentally, we have been planning to submit an additional comment to the EPA regarding its proposed “Anti-Environment” Regulation and issues related to the  Federal Insecticide, Fungicide and Rodenticide Act. While the FIFRA comment is just one of many that we have filed in advance of the August 16, 2018 comment deadline,  the FIFRA issues touch almost everyone’s lives. Pesticides are everywhere.

As before, the substance of our comments is below.  Also, we apologize for the lack of quotation marks and special formatting to make it clear that the following text was “cut”  from our comments.

From Rachel Carson’s serialized publication of Silent Spring to the present day, America has dealt with mountains of scientific evidence concerning the environmental damage (including damage to humans) caused by pesticides. See generally Congressional Research Service, Pesticide Law: A Summary of the Statutes, Nov. 14, 2012 (overview of pesticide law). Little, if any of such evidence was generated by studies that were verifiable and public in the sense contemplated by EPA’s proposed “Anti-Environment” Regulation.

While much of the data included private medical data protected by privacy laws such as HIPAA, much of the data was private and or difficult to reproduce for other reasons (for example, endangered wildlife surveys may not be able to be repeated without impermissibly harming the wildlife).

A striking example of the risks posed by the proposed “Anti-Environment” Regulation was highlighted this week when the Ninth Circuit USCA released its decision in League of United Latin American Citizens v. Wheeler, Case No. 17-71636 (decision published August 9, 2018; slip op. attached). In that case, the Ninth Circuit ruled that EPA had to ban the use of chloropyrifos on food products because of the studies showing the harms to humans. L. Dolan, Court orders ban on pest killer, Los Angeles Times, Aug. 10, 2018, pages A1 and A7.

In the event the EPA’s “Anti-Environment” Regulation were in effect, chloropyrifos could not be banned despite the pesticide’s documented risks to the brains of children. Id.

By forcing EPA to ignore such private (and appropriately non-public) data, the proposed anti-environment rule is fiendishly calculated to block the EPA staff from considering the best data available. This scheme has at least three devastating flaws.

First, the proposed rule will nonsensically bar EPA from considering the best scientific data available disabling EPA rulemaking. This rule would violate the agency’s common sense and statutory duty to consider the sound scientific data.

Second, the proposed regulation turns the statutory scheme of FIFRA upside down. Very limited amounts of pesticides on food products are allowed only if EPA determines the amount to be safe. Slip op. p. 7. See also slip op. at p. 9 (explaining how the EPA must meet FDA standards on this). The proposed regulation seeks to exclude much information that establishes the pesticide’s harm whereas the statute requires the manufacturer to prove that the amount is safe.

Third, before EPA approves its proposed regulation, NEPA requires that EPA prepare an EIS. That EIS must include a detailed analysis of each registered pesticide’s environmental impacts. Such analysis of each pesticide should include: the quantity of the pesticide used every year, the number of applicators applying the pesticide each year, the human toxicity of the pesticide, the non-human affect of the pesticide on the flora and fauna within wind’s reach of the pesticide application area, the pesticide’s impact on groundwater underlying the application area. Also in light of the studies relied in the United case, it I s clear that the EIS must also include a detailed analysis of the pesticide’s impact on the family of the applicators and any other people living near the application area. United, slip op at p. 11-12 (discussing internal EPA studies). Given that there are thousands of registered deadly pesticides, EPA should begin work on the EIS immediately. P. Finegan, FIFRA Lite: A Regulatory Solution or Part of the Pesticide Problem?, 6 Pace Environmental Law Review 615, 624 (1989) (noting that there are over fifty thousand registered pesticide products with over 600 active ingredients).

Tonight, InternationalMosaic.com  filed another comment about the EPA’s proposed   rule. The substance of the comment on the proposed rule is as follows (and selected parts are quoted below):

Among its numerous defects, EPA’s proposed “Anti-Environment” Regulation is invalid because it directly conflicts with HIPAA ‘s patient confidentiality protections.

In America, an important source of health information are medical records protected by HIPAA. That statute protects the privacy of our personal medical information. See, e.g., Ambrosone CB et al., Conducting Molecular Epidemiological Research in the Age of

HIPAA: A Multi-Institutional Case-Control Study of Breast

Cancer in African-American and European-American Women, 2009 J of Oncology, Article ID 871250 (PDF copy attached); id. at 2-3 (noting that test subjects could not be identified by their doctors without prior consent and describing the additional procedures required).

As the Department of Health and Human Services explains: “A major goal of the [HIPAA] Privacy Rule is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well being.” https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html.

By forcing EPA to ignore such private (and appropriately non-public) data, the proposed anti-environment rule is fiendishly calculated to block the EPA staff from considering the best data available.  This scheme has at least two devastating impacts.

First, the proposed rule will nonsensically bar EPA from considering the best scientific data available disabling EPA rulemaking. This rule would violate the agency’s common sense and statutory duty to consider the “best” data.

Second, by purporting to limit EPA’s consideration of important data,  the proposed rule would cripple EPA efforts to comply with NEPA.

Either impact taken alone compels the conclusion that EPA should reject its proposed “Anti-Environment” Regulation.

EPA has said that members of the public have to submit their comments on the proposed Anti-Environment regulation by August 16, 2018. This is not enough time to simply cogitate on and discuss the relevant issues much less properly research and  prepare scientific data on the  same. Nonetheless, we will  continue making comments that EPA may find helpful. The salient parts of our latest comment are below. (We omit quotation marks when quoting ourselves.).

“EPA estimates that more than 35 million people, roughly 12 percent of the U.S. population, live within one mile of a RCRA Corrective Action site.2 The presence of hazardous constituents in contaminated soil, sediments, groundwater, surface water, and air at, or emanating from, RCRA Corrective Action sites can increase the risk of adverse health effects to ex­posed populations. This can be especially critical for minority and poor communities—as well as sensitive sub-populations such as children, pregnant women, and the elderly—who can be disproportionately af­fected. Dangers include acute health effects, such as poisoning and injuries from fire or explosions, and long-term effects, such as cancers, birth defects, and other chronic non-carcinogenic effects (e.g., damage to kidney, liver, nervous and endocrine systems). By reducing exposures to contaminants listed in Table 1, as well as hundreds of others, RCRA Corrective Action cleanups protect the health of local residents, site workers, and others. Corrective Action sites can, and often do, contain more than one contaminant. ” RCRA Corrective Action: Case Studies Report, April 2013, p. 1 (PDF copy attached [to submission to the EPA]).

In addition to helping humans, RCRA helps both surrounding communities and the environment. Id. at 2.

EPA adopted regulations to administer its duties under RCRA, see id. at p. 24 (Appendix A) . Under previous administrations, EPA used its regulations and powers flexibly to maximize its effectiveness. Id.

Unfortunately, EPA has much to do. See, e.g., id. Even when construction of all RCRA facilities is completed, clean up operations will continue. Id. at p. 25 (Appendix B).

A very scary problem with the EPA’s proposed “Anti-Environment” Regulation is that it will evicerate EPA’s ability to regulate under RCRA to protect the millions of Americans living near RCRA sites. Good public policy requires both EPA and our elected officials to carefully consider, and if appropriate, to rely on the available data and studies. The proposed regulation is nothing short of a brazen attempt to undercut the progress we Americans have made. Ignoring such good studies as proposed would endanger millions.

Additionally, EPA’s success and the success of the existing regulations in handling RCRA problems with current scientific studies (studies that EPA would be compelled to ignore under the proposed regulation) provides further evidence that NEPA requires EPA to prepare a thorough EIS before it adopts the proposed regulation. Adopting the regulation withjout an EIS would violate NEPA.

Today, we submitted another comment to the  EPA.

It said in pertinent part:

A frightening feature of the EPA’s proposed “Anti-Environment” Regulation (now championed by Mr. Wheeler) is that it will undo years of efforts to reduce the hazards created by toxic substances.

TSCA was enacted in part because of solid scientific studies that established the general risks caused by the toxic that are now pervasive. See generally, David Markell, An Overview of TSCA, Its History and Key Underlying Assumptions, and Its Place in Environmental Regulation, 32 Wash. U.J.L. & Pol’y 333 (2010).

“[T]he National Cancer Institute has estimated that 60 to 90 percent of the cancers occurring in this country are a result of environmental contaminants. Many doctors and scientists now believe that cancer, which has been projected to kill as many Americans in 1975 as all the battle deaths in Vietnam, Korea, and the Second World War combined, appears particularly susceptible to a preventive approach through control of toxic substances.” Id. at 341 (quoting Senator Tunney).

Good public policy requires both EPA and our elected officials to carefully consider, and if appropriate, to rely on the available data and studies. The proposed regulation is nothing short of a brazen attempt to undercut the progress we have made.

Additionally, the TSCA story provides further evidence that NEPA requires EPA to prepare a thorough EIS before it adopts the proposed regulation.