On May 30, 2018, KOTM Counsel Bill DePaulo filed comments, jointly with People Concerned About Chemical Safety, Inc., at the EPA in connection with proposed "transparency" rules that could fundamentally alter the implementation of clean air, clean water and other critical health and safety regulations. More than 130,000 comments were filed on this critical piece of regulatory governance.
The key to EPA's "transparency" proposal is the requirement to publish, at the time of a proposed rulemaking, the underlying scientific data supporting the proposal, so that other scientists can conduct analyses intended to test or "reproduce" the results. The problem with the proposed rule is that many historic health studies, including particulate matter studies that were the basis for much of the regulations implementing the Clear Air Act, were promulgated many years ago on the basis of private health data that cannot be published now under applicable privacy rules.
Intending to reassure the public, EPA stated that the proposed "transparency" rule, which requires publication of underlying data, would be prospective. In the same breath, EPA noted that there are mandatory requirements to revisit the earlier rules, on a firm deadline, to assess whether the science underlying them is sound. In short, the proposed "transparency" rule could be used, by persons intent on dismantling the EPA regulations, to undo the last half century of work to protect health and the environment. But then who would do that? Who indeed.
Although it is surely only a coincident, DePaulo pointed out in his comments that EPA's "transparency" rule was modeled on the ironically titled "Honest Act" proposed by retiring Texas congressman, the current chair of the House Science Committee, Lamar Smith. Yes, the same Lamar Smith who famously has subpoenaed the underlying data regulations his supporters in the petroleum industry would like to see go away.
Chairman Smith's great claim to fame has been his general harassment of the governmental agency scientists who, applying traditional scientific processes, have consistently found things like concentration of particulate matter to be associated with increased pulmonary disease and early death. With EPA's proposed rule, even as he leaves Washington, DC, Chairman Smith can take pleasure in the vision of future generations.
DePaulo took the opportunity to point out to EPA that the "reproducibility" crisis was not the only data issue before the agency. Also of concern is the "producibility" crisis. Specifically, the current administration has withdrawn funding from the National Academies of Sciences, Engineering and Medicine for a study tentatively titled “Potential Human Health Effects of Surface Coal Mining Operations in Central Appalachia.” See NAS Press Release dated August 21, 2017 (Attachment G). See also, Trump administration halts study on coal mining's impact on health, August 21, 2017 The Roanoke Times, http://www.roanoke.com/business/news/trump-administration-halts-study-on-coal-mining-s-impact-on/article_bf9a6a04-ad9e-5fe2-a0cb-177c2c9cccca.html (last visited May 25, 2018). Why not produce the study, at a cost of less than $100,000, and subject it to peer review? Or is it so clear that the outcome would prejudice efforts to continue MTR that the Trump Administration simply can't allow the study to see the light of day?
And not to be outdone, the Department of Health and Human Services (HHS) has denied PCACS's FOIA request for a copy of the Agency for Toxic Substances and Disease Registry (ATSDR) assessment of a class of toxic chemicals that has contaminated water supplies near military bases, chemical plants and other sites from New York to Michigan to West Virginia. Publication of the assessment was blocked after a January 30, 2018 email in which an unidentified White House employee stated: “The public, media, and Congressional reaction to these numbers is going to be huge” and “The impact to EPA and [the Defense Department] is going to be extremely painful. We (DoD and EPA) cannot seem to get ATSDR to realize the potential public relations nightmare this is going to be,” See https://www.politico.com/story/2018/05/14/emails-white-house-interfered-with-science-study-536950 (last visited May 16, 2018).
On May 22, 2018, the Department of Health and Human Services denied PCACS FOIA request for the ATSDR study on the grounds that:”ATSDR's Toxicological Profile for Perfluoroalkyl Substances has not been approved for release to the public.” The obvious question is why the study is not ready? Is it because agency scientists are scrupulously running checks on the statistical bases for the conclusions in the study? Or is it because the release of the study would cause a predicable – and politically inconvenient – demand for enhanced regulatory response from an administration committed to the destruction of the EPA as an effective regulatory body?
As the National Enquirer -- a loud and proud supporter of the Trump Administration has stated -- "Thinking people want to know."
Attached below are KOTM and PCACS's comments filed with the EPA.
On March 13 and again on March 21, 2018, Bill DePaulo, Counsel to KOTM, appeared in the Circuit Court of Monroe County, West Virginia as counsel for one of the alleged "tree-sitters" ensconced in trees purportedly blocking MVP's ability to clear trees along the path of the 303-mile natural gas pipeline.
The point of contention was at a spot in the Jefferson National Forest where the MVP would intersect with the Appalachian National Scenic Trail (ANST, the priceless national treasure running from Georgia to Maine). According to the FERC that licensed MVP's construction, MVP was required to leave a 300 foot buffer on either side of the Appalachian Trail and tunnel underneath it as a means of minimizing the impact of the 42" natural gas pipeline on the ANST. Effectively, there was a 600 foot long "NO CUT" zone extending across the width of the ANST, 300 feet on either side.
MVP failed in its effort to obtain an injunction against the tree-sitters because, on cross examination, their surveyor could not reliably prove that the tree-sitters were, as MVP alleged, 7 feet beyond the NO CUT zone. As explained in National Public Radio's coverage of the hearing:
At the center of the courtroom debate was a map, provided by MVP, showing the location of pipeline mile markers, the Appalachian National Scenic Trail and the tree sitters in Jefferson National Forest. The Federal Energy Regulatory Commission, known as FERC, has granted MVP permission to cut trees up to the pipeline’s mile marker 196.29.
But exactly where is mile marker 196.29?
Defense attorney William DePaulo went through the map item by item, defining points, adding numbers and to reveal that some points had been rounded. Then he pulled out a piece of paper in what he called a “6th grade” measuring tool to demonstrate items on the map were not located to scale during his cross examination of MVP expert witness, Marshall W. Robinson.
DePaulo, pressed the paper to the map, “Put the left corner at 196.35 and go up to 196.4 they are not the same distance are they,” he asked.
“No, they’re not,” responded Robinson.
Defense attorney William DePaulo cross examines expert witness Marshall Robinson about the surveyed map presented as evidence in the case.
CREDIT NANCY ANDREWS
DePaulo then turned to the judge, “And that’s 5/100ths of a mile. And we know that 196.35 and 196.4 is also 5/100ths of a mile. And it should be, if the map is to scale, it oughta be the same thing. But it clearly is not,” DePaulo concluded.
Judge Irons described himself as “flabbergasted.”
“The devil’s in the details,” he said. “I have a map that it seemed pretty clear at first blush and then the more we listened to it there are rounding errors, there’s inconsistencies. As I sit here I really don’t know whether or not it’s right.”
Judge Robert A. Irons of the Monroe County Circuit Court ultimately ruled that MVP had not carried the burden of proof necessary to obtain a preliminary injunction, and denied MVP's requested order to remove the tree-sitters.
In the time the tree-sitters on Peter's Mountain were in place three more sits began on the Virginia side of the Appalachian Trail. MVP's efforts to evict those tree-sitters has had inconsistent success, with tree-sitters in one location voluntarily vacating a given tree subject to an injunction, for another still free of MVP. And there are a lot of trees spread out over the proposed 303-mile MVP pipeline.
Paul Corbit Brown, President of Keeper of the Mountains Foundation, spoke today on behalf of the Divestment Work our organization is committed to, with the support from RAN (Rainforest Action Network) and alongside Indigenous and frontline activists from across the Americas to confront Chase Bank’s shareholders for its massive funding of extreme fossil fuels and rights violations at its Annual General Meeting in Plano, Texas.
An absolutely amazing group of leaders. I was truly humbled and honored to be here today with them to speak truth to power to JP Morgan Chase. The words I spoke to the board and shareholders:
"Any investment is a gamble, and every company or individual has the right to gamble their own resources in the hopes of making a profit. However, no company, no individual has the right to gamble that which does not belong to them. Your money is far from the only asset that is at risk due to your investments in fossil fuels. Also on the table are the health of those living in the communities affected by the industries you support and profit from; the damage and devastation to the resources that WE ALL rely on such as clean water and clean air; and lastly, climate change. We are long past the time for taking climate change seriously. There is no debate among those who are thinking clearly and honestly.
Dear members of the board and shareholders of JP Morgan Chase, you are gambling with that which does not belong to you and we, the people of the communities you are profiting from, are suffering and literally dying as a result of your gamble. The truth is that our rapacious appetite for wealth through the consumption of fossil fuels is destroying the life support system for human beings. The truth is that we must realign our investment priorities in favor of a renewable, sustainable and equitable energy economy. The truth is that the laws of nature will ALWAYS supplant the laws of humans. So that you, Dear board and shareholders, are clear that I am not speaking in hyperbole, I submit these more than 20 peer reviewed health studies and ask that they be entered into the official record of this meeting. You have the right and responsibility to know the harm of your investment.
We all know the truth, now we are left with one of two choices: we will rise to meet the truth or we will succumb to it.”