Either by legal action or election results, the run of politicization of science that has marked the U.S. Environmental Protection Agency’s regulatory regime on emissions looks to wither away, bringing relief to a major Louisiana industrial concern punished for political reasons.
As of the middle of last week, things weren’t looking great for Denka Performance Elastomers in LaPlace, the country’s only producer of neoprene. For over a decade, Denka and its predecessor have been in the crosshairs of the EPA that alleges production of neoprene emits too high levels of chloroprene that supposedly causes cancer. The EPA has tried to impose emission strict standards even as the company has instigated a huge decrease in these amounts.
That battle escalated in a rule proposed in April and made final in May that broadly changes the emission regime, but specifically for Denka creates a level that the company has said is impossible to meet by an Oct. 15 deadline. It has gone to court to suspend this implementation.
A central facet of the appeal is that the EPA relied upon questionable research that more valid study showed wildly overestimated the level at which chloroprene emission becomes harmful. To back this up, analysis of employees at the facility, who sometimes encounter much higher amounts than the presumed level for extended periods, in fact showed below average cancer rates. Moreover, in the most concentrated area of emissions by Denka and others, St. James and St. John the Baptist Parishes, the latest (2015-19) data show a below state average rate for all cancers in these areas and below that of some other nearby parishes, confirming yet another data point against the fiction of a “cancer alley” running the course of the Mississippi River from Baton Rouge to New Orleans.
But the EPA has disregarded these data contradicting its position because of politicization of the issue, first under the Democrat Pres. Barack Obama Administration, and now on steroids under the Democrat Pres. Joe Biden Administration. Passing on massive costs, if not forcing the closure of, Denka has been on the front lines as a proxy for racially-based and extremist environmentalist issue preferences.
The two came together most notoriously a couple of years ago when the Biden EPA tried to put Denka and other large emitters front and center as propagators of “environmental racism,” or the myth that pollution-intense producers intentionally were situated nearest areas of disproportionately minority residents as a means of having them bear unduly the supposed health costs instead of whites. Not coincidentially, the main culprits typically fingered as committing this emit large qualities of carbon that allegedly induce catastrophic anthropogenic global warming.
Naturally, no quality data exist to prove any of this, which prompted Republican then Atty. Gen., now Gov. Jeff Landry to fight back on behalf of the state. And not long after he called the politicized EPA’s bluff, it folded up the attempt.
But now the empire is back with this new rule, which must be understood merely as an extension of this previous move. Landry has fought back with his administration relaxing any state enforcement, but whether it absolves Denka of technical noncompliance starting this fall if the firm doesn’t meet the promulgated level is uncertain.
For its part, Denka asked for an injunction against the EPA applying the rule in the venue where regulatory disputes go, the Court of Appeals for the District of Columbia. Last week, a panel refused, saying it hadn’t made a strong enough case to forgo a trial of the full court, which may not conclude until after the deadline.
Yet now the company has another arrow in its legal quiver. A couple of days after this, the U.S. Supreme Court in Loper Bright Enterprises v. Raimondo reversed the outcome of a past poorly-reasoned precedential case, known as the “Chevron Doctrine” that gave regulatory bureaucracies maximal deference in the absence of specificity in statute to impose rules. Or, in paraphrasing one analyst, instead of agencies starting with a regulatory program and trying to come up with a plausible legal justification for it based on their authorizing statutes, agencies will need to start from the statute’s wording itself and decide what is permissible.
More than almost any other regulatory agency, the EPA will have to curtail its activism given the paucity of direct powers and direction assigned by the statutes that empower it. Denka and/or Louisiana, under the direction of GOP new Atty. Gen Liz Murrill, can invoke this new decision to demonstrate that the EPA overstepped its authority in establishing the rule in question.
And, of course, increasingly likely is electoral relief as the odds increase Republican former Pres. Donald Trump defeats Biden this fall. Under Trump, the EPA acted more evenhandedly and transparently even as it encountered politicized agency resistance (a course of action that leftist academia, journalists, and special interests ironically tried to portray as being itself politicized), and probably would return to that under another term of his that very possibly would include modifying the rule in question.
Landry’s team and Murrill need to support steadfastly Denka as part of a larger campaign against federal government overreach with its perverse and evidence-free regulatory agenda designed not with science in mind, but political outcomes. Hopefully, a building “greenlash” will put some more wind behind those sails, and when the dust settles Louisiana may end up setting precedent for a better and more accountable EPA that regulates with less politicization and more reasonableness.
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