99% of the American population has never read a single word from the daily publication known as the Federal Register, or its annually-updated codification, the Code of Federal Regulations (CFR), both of which detail all of the rules, proposed rules, and public notices emanating from nearly every agency in our Federal government. The Register is the driest of dry publications, containing everything from federal motor vehicle safety standards governing the cars we drive and the appliances we own, to the allowable chemical output and efficiency of chemical and energy company smokestacks. There are few color pictures in the Federal Register, and the diagrams incorporated in some its pages are for the most part are opaque and bewildering.
But the Register is well-known to companies that profit from burning chemicals and energy sources extracted from the ground. They have entire teams of in-house lawyers poring over every word of it. Some of those lawyers are specifically tasked with working within our government to make sure those rules are written a specific way to benefit their company’s bottom line. And because the jargon contained in the Register is practically indecipherable to a public weaned on episodes of “The Biggest Loser” or “The Voice,” rather than fossil-fuel industry vernacular, most changes and alterations to its content slip by unnoticed by the public.
So in an era dominated by an attention-grabbing sociopath whose daily affronts to our senses tend to overwhelm even the most attentive, no one is happier than the corporations that manufacture chemicals and burn fossil fuels. Because nearly all of the laws and regulations governing their behavior can be changed with a tiny, barely noticeable edit or revision to the Federal Register. And no one, especially a media preoccupied by chasing Tweets, has the time or inclination to take notice.
While everyone else last week was settling in to their summer plans, Trump’s Environmental “Protection” Agency snuck a proposed rule into the Register which would officially allow the chemical and fossil fuel industries to spew more toxic chemicals carcinogens such as benzene, arsenic, xylene, formaldehyde and toluene, all substances linked to cancers and neurological, gastrointestinal, respiratory, kidney and immune system impacts in humans, into the air we breathe.
What, you didn’t hear about it? You’re not alone. It received virtually no attention in the media. It is even difficult now to find any news story about it. Only a press release from the Environmental Defense Fund, which no one will likely read.
(Washington, D.C. – June 25, 2019) The U.S. Environmental Protection Agency today formally proposed a rule to create a loophole for toxic pollution – almost a year and a half after it began implementing the legal interpretation in the rule and in spite of a pending court challenge.
What is particularly egregious about the announcement of this now-formally proposed “loophole” to existing regulations promulgated under the Clean Air Act, is the fact that Trump’s EPA has permitted it to go into effect for the past 1 ½ years, without going through the procedures mandated by law for informing the public.
EPA’s loophole applies to “maximum achievable control technology,” or MACT, standards for hazardous air pollutants under the Clean Air Act. These standards generally apply to large industrial facilities, like refineries and chemical plants, that emit high amounts of 187 dangerous or cancer-causing pollutants.
Until January 2018, those “major source” facilities had to comply with the MACT standards for as long as they operated. Then, former EPA Administrator Scott Pruitt created a loophole – in a four-page memo issued, contrary to law, without notice or public comment and without considering the damage to Americans’ health and the environment. The loophole allows facilities to opt out of the MACT standards if their pollution levels drop below major source thresholds.
Put simply, this “loophole” allows large chemical and energy companies (“major sources”) to increase their levels of toxic pollution by “reclassifying” themselves as entities (“area sources”) which do not have to comply with prior requirements that forced such companies to use the latest technologies in mitigating their pollution of the air. The “loophole” effectively abrogates regulations on these companies that have been in effect for decades. Those regulations cost these companies billions in lost profits, even as they improve the quality of the air we breathe. Changing them has been the focus of an intense lobbying effort by the fossil fuel and chemical industries for nearly a quarter century, for the purpose of increasing their bottom lines at the expense of the public’s health.
The most at-risk recipients of this poisoned air are people living near the companies, typically lower-income to middle-class families who are unable to live elsewhere, and disproportionately, people of color. A significant portion of the neighborhoods around Houston and Galveston, Texas, will suffer the lethal health consequences of this rule change, as determined by the Environmental Defense Fund in a report they had to prepare themselves because the government has conducted no analysis whatsoever on the number of plants likely to take advantage of this “loophole” (EDF found 18 such facilities in the Houston area alone, surrounded by nine hospitals and 78 schools within a three mile radius). But the effects will be measurable—and noticeable-- throughout the nation, because the “loophole” is estimated to affect over 2000 existing facilities.
As a result of this new “Air Toxics Loophole,” major sources that agree to emit below major source thresholds can now reclassify themselves as area sources and skirt compliance with more stringent MACT standards.Because area source standards are frequently much weaker than MACT standards –and do not even exist for many industrial source categories –the result will be potentially significant increases in toxic air pollution. In addition, facilities that exempt themselves from MACT standards by invoking the Air Toxics Loophole will also be able to avoid rigorous monitoring, reporting, and recordkeeping requirements that are associated with those standards. This means that EPA and the public will have even less ability to track emissions from these facilities going forward, or to ensure that these facilities are not exceeding major source thresholds.
(emphasis added)
So if the Trump EPA was already implementing this unlawful rule change, why issue a formal rule now? Because the EDF and other groups had brought a lawsuit and the industry expects a Trump-appointed Federal Judge will shrug his shoulders and say that it’s all moot now anyway. And then the EPA will dutifully hold its required 60-day period for public comment, which will be just as dutifully ignored.
“EPA’s action is dangerous and shameful,” said Patrice Simms, Vice President of Litigation for Earthjustice, another group involved in the lawsuit. “People from overburdened communities need better protection from hazardous air pollution, instead the Trump Administration is trying to take away what protection they have.”
This is how a truly lawless administration operates. In a media environment preoccupied by one Trumpian outrage after another, the effect is to make these types of actions nearly invisible to the public.
Two decades ago a video demonstrating the limitations of the human attention span went viral. The video (posted at the bottom here) depicts a group of young people passing a basketball. The viewer is told to count the number of times the ball is passed by someone wearing white. After the video ends, the viewer is asked a question—but not about the number of ball passes. The viewer is asked if he saw the gorilla.
Because 90-plus percent of everyone watching the video, being focused on the number of passes, failed to see a man dressed in a gorilla suit stroll slowly and quite clearly through the field of view.
The lesson of the video is that people just aren’t equipped to focus on multiple things occurring at the same time. Unless you know the gorilla is there, you more than likely will not see it.
And no one is more aware of that than the corporations whose profits depend on the public’s ignorance of what they are doing.