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Roth: Reasons to stay ‘air aware’ in Oklahoma

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on May 21, 2018.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Roth: Reasons to stay ‘air aware’ in Oklahoma

Often Missouri is referred to as the Show Me State, yet we Oklahomans also typically like to see things ourselves to believe them. Yet, there are realities around us too opaque for the human eye, such as air quality and impacts to our health.

Thursday’s ozone warning, a second warning this month, was just such a reality reminding us of the rising temperatures and the growing dangerous levels of particulate matter that rise with warmer months in Oklahoma’s more urban areas. The Air Quality Index forecast, which prompted the warning, showed an AQI of 101, a level described as “Unhealthy for Sensitive Groups.” The accompanying health message indicates that “active children and adults, and people with lung disease, such as asthma, should reduce prolonged or heavy exertion outdoors.”

Now before you rejoice that an ozone warning simply provides a great excuse to put off mowing your lawn, for many Oklahomans it’s a much more serious challenge to their day. But first, let’s understand what makes up the ozone levels and the accompanying dangers.

This amazing Earth of ours has both naturally occurring and human-made pollution, which together create air quality issues impacting human health. And while I recognize a few (a very few, mostly political scientists, not science scientists) outliers still refute the enormous scientific consensus that human activity leads to climate impacts and climate change, have you ever noticed that our ozone health warnings usually apply only to Oklahoma City and Tulsa areas, where humans congregate and commute, where factories churn out industrial output, where cars, homes and buildings emit pollutions by their very existence? But I digress.

The Oklahoma Department of Environmental Quality does a great job monitoring the air quality across Oklahoma and providing advice and warnings to the public when conditions could be hazardous to our health. Bad air quality can affect everybody’s health and can be particularly harmful to fast-growing young children and aging seniors with reduced immune systems. It even has direct economic impacts through loss of working days and increased health care costs. It can also have harmful effects on sensitive vegetation and ecosystems.

And while we can make a marginal difference ourselves, the enormity of the situation really requires collective group efforts, which is why the Clean Air Act and related environmental regulations are designed to protect those vulnerable Oklahomans on days like Thursday. Ozone is one of six common air pollutants identified in the CAA, and the U.S. Environmental Protection Agency calls these “criteria air pollutants” because their levels in our outdoor air need to be limited based upon health criteria for Americans.

Ground-level ozone is the primary component of smog and it forms when nitrogen oxides and volatile organic compounds chemically react with sunlight of hot, windless days. Bad ozone itself is not emitted directly into the air, but is created from that chemical reaction (from other polluting resources emissions) when in the presence of sunlight. These pollutants come from a variety of sources including electric power plants, cars and trucks, construction equipment, gas-powered engines of all kinds, industrial facilities and even your backyard charcoal grills.

Unhealthy levels of ozone can cause increased risk of respiratory infection, throat irritation, coughing, shortness of breath, aggravation of asthma and other respiratory diseases and can even add dangers to people with diabetes, emphysema and cardiovascular diseases. During higher level of ozone days, the risks and impacts are made worse by activity and exercise outside.

There are actions that each of us can take to alleviate the risk, reduce air pollution and protect our health. If interested, please check out AirNow at the EPA website for some great tips: airnow.gov/index.cfm?action=resources.whatyoucando.

Also, in Tulsa please consider INCOG’s site: www.incog.org/Environmental_Planning/environment_air_quality.html.

And in Oklahoma City, ACOG’s site: www.acogok.org/transportation-planning/air-quality/ozone-alert-days.

So in addition to being “weather aware” this time of year, it makes sense for us Oklahomans to be “air aware”
too, even if you can’t see the pollution with your own eyes. Trust me, your lungs and bodies know it’s there.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Coal ash disposal and verb tense

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on November 27, 2017.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Coal ash disposal and verb tense

Back in 2014, the Obama administration, through the Environmental Protection Agency, passed a final rule called the Disposal of Coal Combustion Residuals from Electric Utilities regarding CCRs (coal combustion residuals or “coal ash”) disposal.

The rule addressed the concern that coal ash contains mercury, arsenic, and cadmium, and can and has leaked into groundwater, blown into the air, and decimated the surface.

But keeping in line with the idea you can’t please everyone, the rule was considered too lenient for some and too stringent for others. In fact, those in the former camp were dismayed the rule did not classify coal ash as toxic waste. What the final rule did do was to create regulations and standards concerning the disposal of the byproduct that comes from burning coal for energy.

Fast-forward to last month when the Trump administration’s Scott Pruitt indicated the EPA would reconsider the rule after being sued over it by Utility Solid Waste Activities Group, a utility company industry group, and AES Puerto Rico, which operates a coal-fired power plant.

Those parties asserted the rule went too far in its regulation over inactive pits, where coal ash has been deposited but is not actively being added to, and active pits, those areas currently being filled with ash.

This past week, in oral argument at the D.C. Circuit, the parties underwent a grammar lesson, which concentrated on whether the EPA’s authority extended to inactive coal ash pits.

A focus on where the waste “is disposed of” was said to concern the present tense, or active coal pits. It was argued by petitioners that the EPA had “limited statutory authority” over inactive pits that had not seen new coal ash in some time. This argument essentially suggests the reach of the EPA regulation is only on the disposal activity and not on the lingering environmental risks that remain.

This discussion over the tense of the statute and how it affected the EPA’s authority took a majority of the hearing and its detailed nuances brings into focus the reach of environmental regulation in America.

The EPA expressed its desire to address the issues in the rule through its rulemaking process. One judge on the D.C. Circuit voiced her concern that “nothing would ever get decided” if that were the route taken, seemingly a nod to the current administration’s multiple efforts to prop up the waning coal industry.

It seems to me that when one is arguing the breadth or limits to a new rule, like the Coal Ash Rule, it’s most important to look to the enabling act and its intended reach. In this case, the enabling act is the Resource Conservation and Recovery Act (RCRA), which typically creates the framework for hazardous and non-hazardous solid wastes.

The Coal Ash Rule was promulgated under sub-part D, similar to open dumping of wastes, operation of municipal and industrial waste sites, and location restrictions like flood plains and wetlands.

It may be nuanced to argue verb tense, but it seems to me a regulation is effective only if it accomplishes its intended purpose to protect the public over the course of the hazardous and non-hazardous materials’ life, not just the act of someone “dumping” it somewhere at one single point in time.

“Safe disposal,” in the eyes of the waste’s nearest neighbor (and their water well), probably should include how it lingers in that disposal location.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: A reprieve for ethanol?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on July 31, 2017.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

A reprieve for ethanol?

Have you ever driven by a gas or convenience station and saw a “100% real gasoline” sign posted proudly by the station owner?

In this summer driving season, I bet you have seen such signs somewhere in Oklahoma or elsewhere in America. At the heart of the “real gasoline” claim is that no amount of ethanol or other alternative fuel additive comprises the gallon of gasoline for your vehicle, but instead it’s derived 100 percent from petroleum. And believe it or not, the oil industry and the Obama administration both agreed in recent years that less ethanol in Americans’ gas tanks was a good thing and was legally possible for the 2016 total renewable fuel volume requirements rule determined by the Environmental Protection Agency.

That was, at least, until the D.C. Circuit Court of Appeals ruled in July that Obama’s EPA and the oil industry and refiners were both wrong, giving a major victory to the ethanol and alternative fuels industries instead, when it rejected the EPA’s use of an inadequate domestic supply waiver to reduce ethanol levels in gasoline.

Congress adopted the Renewable Fuel Standard in 2005 and expanded it in 2007, both times signed by President George W. Bush. The program requires oil refiners to blend increasing volumes of renewable fuels with gasoline and diesel, culminating with 36 billion gallons in 2022. This has led to a domestic biofuels industry that some seem to either love or hate because of its effect on domestic oil prices and its environmental pros and cons.

On average, a 42-gallon barrel of crude oil yields about 19 gallons of gasoline when processed at an oil refinery. According to the U.S. Energy Information Administration, there are 137 operating oil refineries in America, including four in Oklahoma: Ardmore (Valero), Ponca City (Phillips 66), Tulsa (HollyFrontier) and Wynnewood (CVR Energy). These refineries are industrial process plants where crude is processed into gasoline, diesel, asphalt base and other petroleum products. And while many in the industry feel there aren’t enough refineries in America to bring refined petroleum products to market quicker, most everyone now believes there is more than enough supply of domestic oil. Today there are no ethanol plants in Oklahoma.

Each year the EPA sets a new national renewable fuel mandate, via public rule promulgation process, to create what’s called the Annual Renewable Fuel Standard, and in that process it can be allowed a waiver to lower the amounts or ethanol and alternatives. It did so in 2015 for the 2016 standard as it does each year, but the alternative fuel industries sued, alleging that the EPA abused its authority. The former EPA, and the oil industry supporting its approach, apparently ran afoul of the law encouraging ethanol by going beyond the simple question of adequacy of supply of the alternative fuels themselves, when it tried to consider whether there were adequate biofuel refueling stations and ethanol pumps at gasoline stations. These types of market issues, according to the court, go beyond the EPA’s legal discretion.

So now, the new EPA will have to redo the 2016 standard requirements that were already implemented, but here we are in the second half of 2017. It might make more sense for Congress to revisit the law now that the reality for domestic energies has changed so dramatically since 2005.

But then again, it might be easier for the EPA to build a time machine in 2017 to craft a fuel standard for 2016 today, rather than Congress to do anything.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: When power attacks science

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on July 10, 2017.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

When power attacks science

What do Okemah, Oklahoma, today’s EPA and Galileo have in common? Life lessons about the resilience of science across the history of humankind, even when those in power would attack it for political gain. Allow me to explain.

The Woody Guthrie Folk Festival, in Guthrie’s hometown of Okemah, is set for another music celebration July 12- 16, as it’s always scheduled around his July 14 birthday. Begun in 1998, WoodyFest continues to attract world-renowned folk and rock music performers, including an artist who caught my ear named Ellis Paul. Paul attended that first year and continues to visit each year. His music is a folk-pop style that can be provocative and his lyrics have stayed with me since I first heard them, including his song Did Galileo Pray?

The song tells the story of Galileo Galilei, the famed 17th-century astronomer attacked by religious leaders for his role in the scientific revolution of the day, including telescopic confirmation of the phases of Venus, the moons of Jupiter and sunspots. He was tried in the Roman Inquisition in 1615 and found “vehemently suspect of heresy” for contradicting scriptures, and he was forced to spend the rest of his life under house arrest.

Singer Ellis Paul’s lyrics ask:

When he looked into a starry sky upon Jupiter, with its cold moons making their weary rounds.

Did he know that the Pope would claim that he ran with Lucifer and a prison cell could be where he’d lay his head down?

Was he wearing a thorny crown? When he plotted the motion of planets, was Mercury in retrograde?

But he found the truth when a lie was what was demanded. When the judges asked him pointedly he was a’ trembling that day.

Chorus:

Did Galileo pray?

And the song wraps with:

Don’t shoot the messenger, when the postman brings you truth today.

I think of this song often for its ironical question of a scientist accused of heresy because his scientifically proven research refuted the positions of those in power at the time. Lately, I’ve thought of this song daily as I read headlines about the current Trump Environmental Protection Agency purging scientists and going after those whose careers have focused on climate science and its proven research.

The EPA is apparently now being stacked with climate-change skeptics and just this month EPA Administrator Scott Pruitt announced, to a lobbying group of coal industry executives no less, that he was convening a “red team-blue team” exercise to challenge mainstream climate science and the enormous consensus that exists across the globe.

So the agency charged with protecting our country’s environment and public health is now pushing its own inquisition and bragging about it to the most polluting industry known to man.

And sadly while efforts to undermine scientific consensus, or at least to delay the response to the dangers of a changing climate, for some rehashed debate about whose fault it is, science just marches on. Proven scientific theories contain facts, which are observations that have been repeatedly confirmed and are, for all practical purposes, accepted as true. And simply put, science doesn’t care if you believe it or not.

But to deny it only risks the lives of those people who politicians have sworn an oath to protect. Guthrie’s famed guitar, which strummed his populist, pro-people messages, had an inscription that read: “This machine kills fascists.” Today it might state that science outlives them too.

So please always remember, this Land is your Land, this Land is my Land … and This Land was made for you and me. We should all protect it as the only land we have, no matter how those in power choose to attack it for political gain.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Rhetoric and regulation

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 15, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Rhetoric and regulation

I’m about to share an opinion that seems highly unpopular today: I believe there is a role for government and responsible regulation to keep people safe.

Why is that so unpopular? Or even controversial to some? Perhaps it’s because I’m an Oklahoman who dares suggest that government has a role to play in our collective lives or perhaps it’s because I’m suggesting that people may need protection, in some form, from businesses that serve the public at large.

But if you are the parent of a 10-year-old boy who died at a Kansas City water park, or of any of the three young girls dumped out of a malfunctioning Ferris wheel in Tennessee, or of the boy who fell out of a wooden roller coaster in Pennsylvania, all in the past week, you may be wondering why tragedy befell your loved one and why more wasn’t done by the regulator to keep them safe.

Regulation, such as the role of regulators to inspect and approve the operation of amusement parks, equipment and rides, comes in many forms in American life, yet it seems to have become a bad word in political rhetoric in these modern times. And to be honest, I’m really at a loss as to why.

We’ve all heard the rhetoric: “too many regulations are killing jobs” or “we don’t need government regulation micro-managing our lives.” But which specific regulations are actually killing jobs by saving people’s lives? And if that’s the trade-off, doesn’t regulation win that swap each day and in every way?

I once had a close friend, a very smart business owner with hundreds of employees, tell me he was voting for George W. Bush so he would “rein in OSHA and needless safety regulations.” My friend left me perplexed as he seemingly framed it in an excessive cost-to-doing-business argument.

Yet, when I did some research for myself, I learned that the American Journal of Industrial Medicine actually concluded that the Occupational Safety and Health Administration does not kill jobs; rather, it prevents jobs from killing workers.

The much-maligned Environmental Protection Agency is responsible for implementing and enforcing America’s Clear Air Act, among many other environmental and public health law objectives. Chiefly the Clean Air Act, first passed in 1973, and amended in 1990, both by Republican presidents, is a comprehensive federal law that regulates air emissions and air quality by removing dangerous pollutants that “endanger public health and welfare.”

As of the 2011 prospective cost-benefit analysis, it has been determined that massive reductions in pollutants like sulfur dioxide, mercury and nitrous oxide have now helped avoid up to 230,000 premature deaths for Americans over the age of 30 each year, help avoid 280 infant deaths a year, have dramatically reduced bronchitis, asthma and other respiratory disease and in turn will help America save over $3.7 trillion in annual benefits by 2020.

And yet this campaign for president features a debate over reopening old coal mines for out-of-work coal miners, who while mining the greatest source of pollution when burned, suffer much risk to injury and health themselves. The better idea may be to retrain them for something that is better for themselves and all the rest of us.

So when you hear politicians talk in large generalized platitudes attacking big, bad ol’ “job-killing regulations,” please ask them:

Which regulation can you prove has cost how many jobs?

Or, which amusement park, factory or meat-processing plant should we not inspect?

Or, what harm, injury or death to your loved ones would you say is worth having for less regulation?

And please be specific.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Corporate agribusiness and the right to harm

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on May 16, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Corporate agribusiness and the right to harm

State Question 777 is a proposed amendment to the Oklahoma Constitution, voted on by the Oklahoma State Legislature to appear on the general election ballot on Nov. 8. But this idea didn’t originate in Oklahoma; it’s part of a national push by corporate farming interests rolling across America. Which is ironic because most of Oklahoma’s largest corporate animal processors are Chinese, Japanese and Brazilian.

The Farm Bureau, a well-respected organization, is the face pushing for this measure, while the Oklahoma Municipal League, the Sierra Club and the Humane Society are some of those opposed.

The proposed amendment would add a new section to the Oklahoma Constitution that would provide, in part, that “the rights of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state.” This inspiring language has led proponents to refer to SQ 777 as the “right to farm.” However, the next sentence of the proposed amendment all but eliminates the Legislature’s ability to regulate farming in our state: “The Legislature shall pass no law which abridges the right of farmers and ranchers to employ agricultural technology and livestock production and ranching practices without a compelling state interest.” Opponents refer to this proposed amendment as the “right to harm.”

Missouri narrowly passed a constitutional amendment in 2014, also the product of corporate agribusiness pushing constitutional protections against local regulation. That amendment was also sponsored by the national Farm Bureau and the like. The vague and sweeping language of the Missouri amendment – which is almost identical to the proposed amendment in SQ 777 – has already sparked litigation and legal challenges.

Not only is the language of the proposed constitutional amendment ambiguous, it is also superfluous in many ways because Oklahoma already has a right-to-farm statute that protects farmers from nuisance liability. The last subpart of the statute also provides that farmers must abide by state and federal laws, including the Oklahoma Concentrated Animal Feeding Operations Act and the Oklahoma Registered Poultry Feeding Operations Act.  Legitimate farmers are well protected by existing Oklahoma law.

According to the U.S. Department of Commerce, agriculture, forestry, fishing, and hunting provided 1.1 percent of Oklahoma’s gross domestic product in 2014. Oklahoma has more than 80,000 farms, which includes approximately 73,000 family farms and 1,900 corporate farms. About 75 percent of the land in our state is agricultural land, and the average farm size is 430 acres. The agricultural industry employs more than 120,000 Oklahomans.

If SQ 777 is passed by voters in November, it would have far-reaching and detrimental effects on family farms in our state, to the advantage of larger corporate interests. It would tie the hands of the state Legislature and municipalities, making it almost impossible to implement reasonable and necessary regulations to protect land and water from corporate pollution. As stated in the proposed amendment, the state Legislature will not be able to pass statutes regulating farming activities unless the Legislature can show a compelling state interest. This is an extremely high burden, and most proposed legislation would not be able to satisfy this threshold. What about cock-fighting? Or puppy mills? Or over-flowing waste lagoons?

No other industry is afforded this type of constitutional protection. Forcing state legislators and local regulators to satisfy such a high constitutional burden in order to protect the interests of their constituents will allow major corporate agribusiness to operate with virtual impunity in Oklahoma.

SQ 777 states that it will not overturn any existing legislation that was passed before Dec. 31, 2014. Several laws passed in 2015 could be reversed by SQ 777, including statutes regulating puppy mills in large cities and protecting pollinating insects.

If SQ 777 were passed, it would only invite more federal government intervention from agencies like the Environmental Protection Agency and U.S. Department of Agriculture. If state regulators are rendered impotent by a state constitutional provision, federal regulators will be forced to step in to address environmental concerns, animal rights, water contamination and other harms.

Surely we Oklahomans can be trusted to respect legitimate farming interests and to respect the land that we belong to as grand without having to concrete corporate farm immunity into our vaulted Constitution. Right?

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Justice Antonin Scalia and the Clean Power Plan

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 22, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Justice Antonin Scalia and the Clean Power Plan

U.S. Supreme Court Justice Antonin Scalia’s sudden death at the age of 79 leaves a vacancy on our nation’s highest court larger than one single person. In fact, it probably leaves a vacancy the size of many people, as the justice’s 29-year tenure certainly suggests.

English philosopher John Stuart Mill, a political economist, feminist and civil servant in the 19th century, probably wouldn’t have agreed much with our late Justice Scalia, but one of his quotes seems a foreshadow of the impact of just such a man:

“One person with a belief is equal to a force of ninety-nine who have only interests.”

Justice Scalia certainly was a man of firm beliefs. He has long been described as the “intellectual anchor for the originalist and textualist position” of the U.S. Supreme Court’s conservative wing. It was Scalia’s consistent belief that the U.S. Constitution provided clear lines of separation among the three branches of government: legislative, executive and judicial.

This rigidity was evident in his approach to three decades of opinions, including those cases involving America’s energy and environmental issues.

Just this month, Scalia joined the majority in an unusual move to grant a judicial stay on the regulatory efforts of the U.S. Environmental Protection Agency and its Clean Power Plan, which prior to the stay seemed on its own path for review on the merits at the D.C. Circuit Court level, then likely headed to the Supreme Court for review.

However, the SCOTUS stay halts states’ implementation of the final rule requiring states to develop plans to limit carbon emissions from the power sector in the coming years, with a deadline of September.

Now the fate of the Clean Power Plan, albeit delayed in time, is likely going to land in the hands of a different Supreme Court in the coming years. The issues being debated in the Clean Power Plan case – EPA authority, congressional actions within the Clean Air Act, states’ rights, citizens’ health and environmental protections – will be an early test for a new, possibly rebalanced SCOTUS.

In most every opportunity, Scalia strongly opposed the idea of a living Constitution, the notion that the judiciary can revisit the meaning of constitutional provisions in applying the facts of modern times. He believed instead that those laws must be viewed in their historical context, as they would have been understood at the time they were drafted.

Only time will tell if his viewpoints, beliefs and work-product legacy will receive the same frozen-in-time approach, or whether his beliefs live beyond the life of the believer.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.