Working for the Environment as a Young Lawyer

Do you sometimes wonder how to make your voice heard? So far, 2020 has brought a global pandemic, social isolation, civil unrest, and economic hardship. It might feel like you need more credentials – and more wrinkles – before you can do anything about it. Not so. Though you might not change the world in a day, your voice matters and deserves to be heard. Once you put your ideas out there, you might be surprised by what you are able to accomplish.

I am the only lawyer in my family and hadn’t thought about law school at all until the idea was raised by a few people close to me after I graduated from McGill in 2011. I applied partly out of frustration with the limited work opportunities available to me without an advanced degree and ended up in a career that I love and a professional community that continuously challenges me. If you have ideas and enthusiasm, you will find colleagues and mentors only too happy to support your projects and help you launch your career.

After graduating from Columbia Law School in 2018, I applied to join the Environmental Law Committee (“ELC”) of the New York City Bar Association (“NYCBA”) to get involved in local environmental matters. The ELC’s members include lawyers from government (federal, state, and local), firms, and non-profits, as well as in-house counsel and academics.  Some were veterans and others, like me, are just starting out. That summer of 2019, I had read about the EPA designation of the New York region as in “serious nonattainment” of the National Ambient Air Quality Standards (“NAAQS”) for ozone. I wasn’t exactly sure what that meant, but I knew serious nonattainment of air quality objectives could not be a good thing, and it was a local issue I thought might interest the Committee. I reached out to contacts at the Natural Resources Defense Council and one of their scientists, Vijay Limaye, agreed to come and speak to the ELC about air pollution and specifically, ozone and particulate matter.

Ground-level ozone (O3) contributes to smog and is typically formed by photochemical reactions between volatile organic compounds (VOC) and nitrogen oxides (NOx). Significant sources of VOC include chemical plants and gas pumps. NOx result primarily from combustion in motor vehicles and industrial furnaces, or at power plants. Particulate matter is formed by minuscule clumps of solid particles and water droplets that can penetrate deep into the lungs when inhaled. It originates from sources like construction, fires, power plants, industrial activities, and vehicles.

Because air pollution travels freely across state and city lines, local governments cannot guarantee adequately clean air to residents without strong, uniform federal standards. One way the Clean Air Act (“CAA”) addresses this cross-boundary pollution problem is by requiring the EPA to set and regularly update NAAQS for “criteria pollutants”: ozone, particulate matter, carbon monoxide, lead, sulfur dioxide, and nitrogen dioxide. NAAQS must protect the public health (ie., people) and the public welfare (ie., property, visibility, the economy, etc.).

Under the federal rulemaking process, the EPA first publishes a “proposed rule” in the Federal Register, which sets out its findings and proposals and is followed by public comment period. Once the EPA has reviewed the comments and taken them into account, it publishes a final rule that becomes law.  Under the Administrative Procedure Act, agency action may be found unlawful on the grounds that it is arbitrary and capricious.  5 U.S.C. § 706.

After Vijay’s talk, we formed an Air Quality Subcommittee and had our first meeting during the COVID-19 pandemic, via Zoom. We agreed to focus our efforts on drafting a comment on the EPA’s proposed rule for the particulate matter NAAQS. We were concerned because the agency proposed to maintain the NAAQS at their current level, despite scientific evidence that the existing standards do not sufficiently protect the public health or welfare.

Our comments focused on two basic criteria for NAAQS: they must “accurately reflect the latest scientific knowledge” (CAA Sec. 108(a)(2)) and they must “allow an adequate margin of safety” (CAA Sec. 109(b)(1)). The latter requires the EPA to “act in the face of uncertainty,” Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1155 (D.C. Cir. 1980), and build a buffer into the NAAQS to account for “uncertain and unknown dangers.” Mississippi v. EPA, 744 F.3d 1334, 1353 (D.C. Cir. 2013).

When rulemaking under the CAA, the EPA relies on the advice of the seven-member Clean Air Scientific Advisory Committee (“CASAC”) (CAA Sec. 109(d)(2)(A)).  We argued that its reliance on the CASAC in this instance was arbitrary and capricious for several reasons. First, in 2017, the agency banned EPA grant beneficiaries from serving on its advisory committees, which resulted in the removal of experienced grantees from the CASAC and introduced an industry bias in favor of less stringent standards. Second, the EPA disbanded the specialized Particulate Matter Review Panel that had formerly advised the CASAC and replaced it with “ad hoc” consultants that could not provide the CASAC with the expertise it needed to effectively advise the agency. Third, the CASAC only had the opportunity to comment on inadequate draft versions of the EPA’s scientific and policy assessments. 

We also contended that the EPA’s proposed rule was arbitrary and capricious because it failed to introduce an adequate margin of safety.  The proposed rule pointed to scientific uncertainty as a basis for maintaining the current standards. Building an adequate margin of safety, however, required the agency to respond to preliminary evidence of unacceptable health and welfare outcomes, especially among vulnerable populations, by making the standards more stringent. Among other evidence, we pointed to new research suggesting a link between COVID-19 and long-term exposure to particulate matter, and the disproportionate impacts the current pandemic has had on vulnerable and minority populations.

In light of all these findings, the ELC’s comment urged the EPA to withdraw the proposed NAAQS on particulate matter and promulgate a stricter standard that will adequately protect the public health and welfare. (Read the full comment here.)

Serving as a member of the Environmental Law Committee gave me the opportunity to mobilize local attorneys to stand up for the health and welfare of New Yorkers on an issue that matters to me, while learning from more senior colleagues and benefitting from their mentorship. I’m looking forward to another year!

By: Emily Rebecca Hush

Emily is a member of the NYCBA’s Environmental Law Committee and a contributing author to the Committee’s Report.  The views expressed in this post are hers and not necessarily those of the NYCBA.

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