Eight years after Louisiana suffered the worst environmental disaster in American history, Liz Murrill, Louisiana’s first “Solicitor General,”- a job that does not exist under state law- and Attorney General Jeff Landry are leading an effort to prevent energy companies from complying with a rule promulgated during the final year of the Obama administration by the Environmental Protection Agency’s Risk Management Program (RMP).
On Friday, Murrill appeared before the U.S. Court of Appeals for the District of Columbia Circuit, often considered the second-most powerful court in the country, to present oral arguments on behalf of twelve state intervenors in the case Air Alliance Houston, et al v. EPA, et al; other intervenors include the American Petroleum Institute, the American Chemical Council, and the U.S. Chamber of Commerce.
In addition to Air Alliance Houston, petitioners also include the Louisiana Bucket Brigade, the Clean Air Council, the Coalition for a Safe Environment, the Union of Concerned Scientists, and the Sierra Club; their suit is supported by eleven states, led by New York.
The rule in dispute seeks to augment and improve disaster response coordination between chemical plants and oil and gas facilities with local first responders and law enforcement, which became a priority in April of 2013 after twelve firefighters died while responding to a massive explosion at a fertilizer plant in West, Texas. In all, fifteen people were killed and more than 200 were injured by the explosion.
“State and federal investigators found that firefighters in West did not know enough about what they faced at the plant,” The Dallas Morning News reported a year later. “The building stored 40 to 60 tons of ammonium nitrate, a fertilizer used by farmers that becomes explosive under certain conditions.”
The new RMP rule addresses many of the vulnerabilities that were exposed by that explosion, emphasizing the necessity of information-sharing with local law enforcement, first responders, and nearby residents. But many in the chemical and oil and gas industry oppose the rule change, and after he was appointed by President Donald Trump, EPA Administrator Scott Pruitt began dismantling a series of regulations unfavored by the industry.
The rule, which was officially proposed in March of 2016, took effect on January 13, 2017, a week before Trump’s inauguration. On March 13, 2017, less than a month after Pruitt was confirmed by the Senate, EPA delayed the implementation of the rule by 90 days. The very next day, Liz Murrill sent Pruitt a nine-page letter, petitioning him to reconsider the rule and delay it for another eighteen months.
Following the expiration of the 90-day delay, in June, Pruitt ultimately agreed with Murrill’s recommendation and ordered the rule be delayed for an additional eighteen months, and that’s when the Louisiana Bucket Brigade and a coalition of environmental groups filed suit against the EPA.
For those unfamiliar with the nuances of administrative law, a rule-making change, such as this one, is already subject to extensive review and a 90-day “notice and comment” period, wherein the agency alerts potential stakeholders of a proposed change and provides them with an opportunity to openly and transparently submit concerns into the record. In fact, Jeff Landry had first expressed his opposition to the rule when it was officially proposed in early 2016; his arguments had already been taken into consideration.
More importantly, though, the law states that, once a rule is finalized, EPA can only delay its implementation for 90 days, unless an additional delay is determined to not be “arbitrary and capricious,” which is an enormously high burden considering the exhaustive review and drafting process already undertaken.
Although Murrill has been preparing her arguments for nearly a year, Landry praised her work for the first time on Thursday. “As I have said before: the ill-advised decision to finalize the RMP Rules not only subjected facilities to even more burdensome, duplicative, and needless regulation; but it also makes all of us more vulnerable to security threats,” he wrote in a press release, encouraging others to tune into listen to Murrill. “I am grateful Administrator Pruitt recognized this and granted our review; and I am confident Solicitor General Murrill will represent our State in the most judicious manner on Friday.”
Murrill was only provided a brief amount of time to present her arguments, which began by noting that Congress already had passed a litany of laws related to emergency response, including a law providing for the protection of animals. But she primarily focused on the claim that the rule could undermine homeland security because, in her opinion, it was too vague about the definition of who should be considered “emergency response officials.” She did not, however, claim that the rule itself was “needless.”
Under questioning from Judge Judith Rogers, Murrill argued that better coordination was necessary and important. You can listen to the entirety of oral arguments here (Murrill’s portion begins at the 1 hour and 36 minute mark).
“Confusion and change… inhibits response,” Murrill said, responding to the fact that EPA had actually amended the rule to better address concerns about information-sharing and homeland security.
Her arguments did not appear to sway Judge Rogers, who noted that Murrill and others were attempting to make two contradictory arguments. “I hear two lines here,” Rodgers told Murrill. “One, we want EPA to do more, but we want it to do it differently. And two, we can do it ourselves. EPA is unnecessary here. We have state laws. We have county laws. We have municipal laws. So, get out of our way and let us resolve these matters. But then I hear, ‘No, no, we want EPA to step in.’
“And just to respond (to your comment) that Congress has laws to protect animals. Years ago, it acted to protect human beings and the environment,” Rogers said.
Murrill’s reply directly belied what her boss, Attorney General Jeff Landry, had told the public only a day before. “The states don’t take the position that there’s not some value in improving these rules,” Murrill told the court. “I don’t think anybody actually disagrees that it’s a good idea to improve and modernize the rules.”
So, what is this really about? Why are Louisiana taxpayers being required to spend money to fight this battle?
According to the petitioners, EPA already put in protections to ensure safety concerns were addressed, and no one denies that better coordination is paramount. Indeed, the central argument offered by Murrill- that the rule is too vague about who should receive information- was already fixed in an amendment dramatically scaling down recipients of this information and ensuring the information would not be subject to “public disclosure.”
And there is “robust evidence” that as a result of this rule, people would “immediately have stronger emergency response.”
It is indisputable that far too often, first responders arrive at the scene of an emergency and subsequently become sick as a result of exposure to certain chemicals. And it’s also indisputable that far too often, first responders do not know the types of chemicals stored in facilities in their own communities.
There is a simple and obvious explanation: Louisiana’s Department of Justice is currently being led by people who have repeatedly proven to care more about the profits and public image of Big Oil and chemical companies than about the state’s environment or those who live in our most vulnerable communities, even if it poses a danger to first responders.
“The whole point of this is to enable and ensure noncompliance,” Emma Cheuse, an attorney for one of the petitioners, told the court.