EPA nominee would rein in agency

Republished from Composting News, December 2016

By Ken McEntee
December 7, 2016
Many critics of the U.S. EPA have charged that the agency is “out of control,” with 
overzealous regulations. Oklahoma Attorney General Scott Pruitt is one of them, and starting next year, pending congressional approval, Pruitt will be in charge of the agency.
President-elect Donald J. Trump this month announced his intention to nominate Pruitt to serve as the administrator of the EPA.
“The American people are tired of seeing billions of dollars drained from our economy due to unnecessary EPA regulations, and I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses,” Pruitt said.
Trump said Pruitt, who he called an expert in constitutional law and one of the country’s top attorneys general, brings a deep understanding of the impact of regulations on both the environment and the economy making him an excellent choice to lead the EPA.
“My administration strongly believes in environmental protection, and Scott Pruitt will be a powerful advocate for that mission while promoting jobs, safety and opportunity,” Trump said. “For too long, the Environmental Protection Agency has spent taxpayer dollars on an out-of-control anti-energy agenda that has destroyed millions of jobs, while also undermining our incredible farmers and many other businesses and industries at every turn. As my EPA administrator, Pruitt will reverse this trend and restore the EPA’s essential mission of keeping our air and our water clean and safe.”

Trump said Pruitt will be deeply involved in the implementation of his energy plan, “which will move America toward energy independence, create millions of new jobs and protect clean air and water.”
He said he and Pruitt agree that the new administration must rescind all job-destroying executive actions and eliminate all barriers to responsible energy production. This will create at least a half million jobs each year and produce $30 billion in higher wages, Trump said.
As new EPA regulations on clean water and air during the Obama administration have drawn fire from farmers, businesses, state officials and others around the country, Pruitt has been at the forefront of the opposition. He established Oklahoma’s first “federalism unit” to combat unwarranted regulation and overreach by the federal government and has said that states should have the sovereignty to make many regulatory decisions for their own markets.
In September Pruitt participated in oral arguments in federal appeals court in West Virginia v. EPA, in which West Virginia and other states filed suit to stay the Obama administration’s Clean Power Plan. The Obama administration said the aim of the plan is to reduce greenhouse gas emissions.
“This has been a historic and consequential day as 27 states joined together to ensure the precious balance of power is preserved,” Pruitt said during a press conference after the oral arguments. “This administration continues to treat states as mere vessels of federal will, abusing and disrespecting the vertical separation of powers defined by our Constitution. That is why attorneys general, senators and congressmen from across the country have joined together today to maintain rule of law and checks and balances in this very process. I am committed to ensuring the ultimate payer in this matter is not overlooked – the consumers.”
Last year, Oklahoma passed a law that protects the state from unlawful EPA overreach.
“The EPA’s so-called ‘lean Power Plan is the federal government placing the proverbial gun to the head of the state of Oklahoma to make the state bow to the pressure of an unlawful EPA rule,” Pruitt said at the time. “Senate Bill 676 is a bulwark against the overreach of the EPA. This is an important step to the state of Oklahoma’s ability to defend its interests against the unlawful actions of the EPA. No state should be forced to comply with this unlawful rule, and SB 676 is a common-sense approach that ensures decisions about Oklahoma’s power generation are made by state officials and not bureaucrats in Washington.”
In June 2015, in Michigan vs. EPA – a case in which the state of Oklahoma also was a plaintiff - the U.S. Supreme Court ruled 5-4 that the EPA unreasonably interpreted the Clean Air Act when it decided to set limits on the emissions of mercury and other pollutants from power plants without first considering the costs to utilities and others before doing so.
“Thanks to our victory, the EPA can no longer ignore the substantial costs its rulemaking can heap on industry, and eventually ratepayers,” Pruitt said. “The EPA routinely ignores statutes and congressional directive in order to pick winners and losers in the energy arena.”
Also in 2015, Pruitt was among the state officials who filed lawsuits against EPA over the agency’s Waters of the United States (WOTUS) rule, implemented under the federal Clean Water Act.
“I and many other local, state and national leaders across the country made clear to the EPA our concerns and opposition to redefining the Waters of the U.S.,” he said. “However, the EPA’s brazen effort to stifle private property rights has left Oklahoma with few options to deter the harm that its rule will do.”
Pruitt called WOTUS an “egregious power grab by the EPA and an attempt to reach beyond the scope granted to it by Congress. This rule renders the smallest of streams and farm ponds subject to EPA jurisdiction. This means that the first stop for property owners is the EPA, which may deem the property owners’ waters subject to the EPA’s unpredictable and costly regulatory regime. It would be a terrible blow to the private property rights of Americans.”
WOTUS is now in limbo and virtually certain to be rescinded under the Trump administration.
Speaking to Composting News last month (See Composting News, November 2016), Robert LaGasse, executive director of the Mulch and Soil Council, a trade association that represents soil and mulch producers, said he hopes the Trump administration will “take a stronger look at EPA and correct some of the errors that it has made recently.”
That includes WOTUS, which LaGasse has said “presents a big problem for anybody who wants to make changes to their property.”
Jay Lehr, science director for the Heartland Institute, a Chicago-based research organization, and one of the architects of the EPA who has since become a critic of the agency, praised Trump’s nomination.
“This is a great day for the environment, the American people and the economy – which will soon no longer be crippled by totally insane regulations, including the idea that humans exhale a pollutant with their every breath,” said Lehr, who has proposed the elimination of the EPA in favor of putting environmental protection under the control of state agencies. “There would be many people on my list for great EPA administrators but none would be any higher on it than Scott Pruitt. We have not had a knowledgeable individual at the helm of EPA for more years than I am willing to say. For well over a decade, we have had a combination of incompetence and anti-capitalists at the helm who knew nothing of environmental science and more importantly they did not care. As long as they could place road blocks in the way of progress with no validity whatsoever as to improved environmental protection, they felt they were doing their job.”
Fellow Oklahoman and U.S. Sen. Jim Inhofe, chairman of the U.S. Senate Environment and Public Works (EPW) committee, also praised Pruitt as a “leader and a partner on environmental issues for many years.”
“Pruitt has fought back against unconstitutional and overzealous environmental regulations like Waters of the U.S. and the Clean Power Plan,” Inhofe said. “He has proven that being a good steward of the environment does not mean burdening tax payers and businesses with red tape. In his appearances before the Environment and Public Works committee, Pruitt has demonstrated that he is an expert on environmental laws and a champion of states’ roles in implementing those laws.”
Across the aisle, Pruitt’s nomination wasn’t greeted as enthusiastically.
“I cannot support Scott Pruitt, a denier of climate science, to lead the EPA,” said U.S. Senator Brian Schatz (D-Hawaii). “Climate change is real, urgent and caused by humans. It is a scientifically proven fact that any EPA administrator should accept. The EPA has the enormous responsibility of protecting our environment and keeping Americans safe and healthy. Its administrator should share those goals, but Scott Pruitt’s record has shown us that he does not.  While the EPA is tasked with protecting our people and our environment from the impacts of climate change, he denies the science behind it.  And while the agency has worked to keep our air and water clean and safe, Scott Pruitt has worked to undermine the very rules that protect those resources. The health of our planet and our people is too important to leave in the hands of someone who does not believe in scientific facts or the basic mission of the EPA.”
According to House Minority Leader Nancy Pelosi (D-Calif.), “For the sake of the air we breathe, the water we drink and the planet we will leave our children, the head of the EPA cannot be a stenographer for the lobbyists of polluters and big oil. Pruitt has brazenly used his office as a vehicle for the agenda of big polluters and climate deniers in the courts – and he could do immense damage as the Administrator of the EPA.”
Speaking to Composting News last month, Lehr opined that despite Trump’s open skepticism about global warming, he doesn’t anticipate a sudden reversal in Washington policy regarding climate change.
“So far I haven’t read a single word that makes me believe we are going to back up at all on climate change,” he said. “There is no question that Trump feels that it is a hoax, and it is the biggest hoax ever perpetrated on society, and I think he will stick with that. But I think it will take some time to slowly wind it down reasonably. Over a period of time, the more than $5 billion a year of research money that goes to support the climate models at the academic levels will dry up.”

Seattle food waste rule violates privacy, court rules

By Ken McEntee
Composting News

Snooping through residents’ garbage to find violations of Seattle’s food waste disposal ban violates residents’ rights to privacy, as protected by the Washington state constitution, a King County Superior Court judge ruled this month. Judge Beth M. Andrus granted summary judgement to plaintiffs in Bonesteel v. City of Seattle and issued an injunction against enforcement of unconstitutional portions of the city’s food waste disposal ban.

The ruling does not mean that Seattle’s ban on the disposal food waste and compostable paper in residential garbage itself is unlawful, and the plaintiffs did not challenge the city’s right to ban food waste from trash collections.

“The ruling that the city’s ban on recyclables and food waste in the trash is lawful helps Seattle meet its recycling goals,” said Andy Ryan, media relations coordinator for Seattle Public Utilities (SPU). “The ruling requires that we ensure the way trash is collected maintains our customers’ privacy. We will study the ruling and determine what changes we need to make in the program and the city ordinance.”
Bonesteel v. City of Seattle is a civil rights lawsuit filed in July 2015 on behalf of a number of Seattle residents who say their rights were violated by the inspection provisions of the food waste ordinance.

“Today’s ruling is a victory for common sense and constitutional rights,” said Ethan Blevins, staff attorney for the Pacific Legal Foundation (PLF), a non-profit public interest legal organization that represented the residents at no charge. “A clear message has been sent to Seattle public officials: Recycling and other environmental initiatives can’t be pursued in a way that treats people’s freedoms as disposable. Seattle can’t place its composting goals over the privacy rights of its residents. By authorizing garbage collectors to pry through people’s garbage without a warrant, the city has promoted a policy of massive and persistent snooping. That’s not just wrong as a matter of policy, as the judge has correctly ruled, it is wrong as a matter of law.”

At issue was Seattle Ordinance No. 124582, which prohibits residents from throwing food and compostable paper in the trash. The food waste ban requires garbage collectors to monitor the contents of garbage cans through visual inspection and to report residents to Seattle Public Utilities when significant amounts of a can’s contents (more than 10 percent) are made up of recyclables or food waste.  The law applies to single-family homes, apartments and commercial properties.

As invoked by the lawsuit, PLF said, the ordinance violates the right to privacy.  Article I, section 7, of the Washington Constitution provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  The provision offers more expansive protection than the Fourth Amendment to the U.S. Constitution. Washington courts “jealously guard” the right to privacy, holding that people have a reasonable expectation that the contents of their garbage cans will remain private, and that the government may not search rubbish bins without a warrant, PLF said.

SPU inspectors or contractors inspected residents’ trash containers to visually determine whether they exceeded 10 percent food waste. If they did, a sticker indicating the violation was placed on the container and a $1 fine was levied. Seattle contracts with Waste Management and Recology/CleanScapes to collect trash. Compostables are collected by Lenz Enterprises and PacificClean of Washington.

According to the suit, collectors tagged about 500 trash cans per week when the program started in early 2015. The rate of tagged cans dropped to about 40 per week by late 2015.

Ryan said the city is “pleased that the court’s ruling recognizes the city's ability to regulate what goes into trash cans to address conservation and safety needs. Plain view monitoring for dangerous items is vital to protecting worker and public safety. This was the most important issue at stake in this case.”

Also see Seattle sued for trashing privacy rights.

Plastic company cannot claim biodegradability, FTC rules

By Ken McEntee

The Federal Trade Commission (FTC) has ruled biodegradability claims by a plastics additive manufacturer to be deceptive. The attorney for Painesville, Ohio-based ECM BioFilms said ECM will appeal the decision to the U.S. Court of Appeals for the Sixth Circuit.

“It is a disastrous decision that should be held as unconstitutional under the First Amendment,” said Jonathan Emord, of Washington D.C.-based Emord & Associates. “It is an egregious instance of abuse of agency discretion.”

Emord said FTC’s order against ECM reversed the decision of its own administrative law judge and contradicted the testimony of its own scientific experts.”

In January 2015, FTC’s Chief Administrative Law Judge D. Michael Chappell ruled that ECM’s claim that its plastics additive, ECM MasterBatch Pellets, causes plastics to biodegrade was supported by competent and reliable scientific evidence and rejected FTC’s challenge to that claim. Chappell also rejected FTC’s argument that the term “biodegradable” implies that a product will completely biodegrade into elements found in nature within one year after customary disposal — a position articulated in the FTC’s Green Guides industry guidance.

Along with reversing the ALJ decision, FTC changed the one-year rule in its Green Guides to says that products must be proven to break down into natural elements within five years of disposal to claim biodegradability.

ECM advertised the additive causes plastics to be biodegradable, that plastics treated with MasterBatch Pellets are “biodegradable in a landfill” and that plastic products made with ECM additives “biodegrade in nine months to five years.”

Emord said the latter claim had been since withdrawn.

FTC in October 2013, filed an administrative complaint alleging that ECM’s claims were false or unsubstantiated. After about three months of hearings, the commission officially issued its opinion and final order against ECM on October 19. The order basically tells ECM to stop making claims of biodegradability.

“In its opinion, written by Commissioner Terrell McSweeny, the commission affirmed (Chappell’s) initial decision that ECM made deceptive claims that plastics treated with ECM’s additive would completely biodegrade in a landfill within nine months to five years, and that scientific tests supported this claim,” FTC announced. “The commission also upheld the ALJ’s finding that ECM encouraged its customers – companies that manufacture plastics – to pass on the deceptive claims to their customers and end-users.”

FTC said that based on its own examination of the evidence, it also found that ECM made implied claims that plastic products treated with ECM’s additive will biodegrade in a reasonably short period of time, or within five years, and that these claims were false and unsubstantiated. This reversed the ALJ’s finding that the commission did not prove that ECM’s environmental marketing conveyed such implied claims. In its ruling FTC considered ECM’s customers’ inability to “readily judge for themselves the truth or falsity of ECM’s claims.”

The FTC vote to approve the Opinion and Final Order was 4-0, with Commissioner Maureen Ohlhausen dissenting in part and issuing a separate statement. In her statement, Ohlhausen agreed with the ALJ that FTC failed to prove that ECM’s unqualified “biodegradable” claim caused reasonable consumers to believe that treated products would biodegrade in a reasonably short time period.

“This is a momentous decision in the sense that is will transform the industry,” Emord told Composting News. “It promulgates a new rule amending the FTC Green Guide to say that plastic has to biodegrade into elements in nature within five years of customary disposal or you can’t call it biodegradable. The problem is that is not scientific. First of all, materials don’t ordinarily break down into elements - they break down into compounds. Any substance from a piece of wood to banana to a piece of paper breaks into compounds, not elements, which means that there is nothing that can qualify for the term ‘biodegradable.’”

Emord said the five-year rule for a substance breaking down into elements is “nutty.”

“Intrinsically biodegradable substances cannot be predicted to biodegrade within any set time period,” he said. “It depends on ambient environmental conditions and the relative presence of biota. Under the new FTC rule, a product that completely biodegrades five years and one minute after disposal is not lawfully labeled ‘biodegradable’ but one that completely biodegrades just one minute before is.”

Emord said more than 20 gas evolution tests done by ECM and companies that purchased the additive confirmed intrinsic biodegradability.

“Those are generally accepted tests and FTC rejected those tests and articulated what it would accept as biodegradable in broad terms,” Emord said. “There is no testing methodology to prove what they will accept. Nothing is going to completely break down, even if it is intrinsically biodegradable, within five years by any reliable measure.”

Emord said Mort Barlaz, of North Carolina State University, “who is recognized as one of, if not the top expert in the world on biodegradation of plastics in the world,” testified to the commission that the ECM additive made plastics intrinsically biodegradable.

“The method of testing was even affirmed as valid by FTC's own testifying expert, Dr. Thabet Tolaymat, a representative of the U.S. EPA,” Emord said. The judge agreed, in very tedious detail, that we showed proof of biodegradability, and that FTC did not prove otherwise. Without a reasoned explanation for departure from the science, the FTC adopted instead an arbitrary five-year cut off as the standard for allowing biodegradable claims. This is a very strange process where the prosecutor is also the judge. The commission simply rejected all of the evidence that convinced the ALJ of our case, and didn’t have to explain why.”

According to ECM, plastics treated with its additive has been tested and proved as biodegradable and safe for the environment by using the following ASTM test methods D5209, D5338 and 5511.

A complete history of the case against ECM can be found in FTC Docket No. 9358, at http://tinyurl.com/p3bx5gd.