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Court Finds Bush-Era Ozone Standards Violate Clean Air Act

Earthjustice

Today’s decision by a federal appeals court upholds the contention by environmental groups that the Bush Administration’s smog standards do not assure protection of forests and vegetation from ozone damage as the law requires. The court’s judgment found that in 2008 the U.S. Environmental Protection Agency (EPA) violated the Clean Air Act when it refused to set protective standards and ignored the unanimous recommendation of its independent science advisors. However, the decision also upholds a health standard that these same scientific advisors had found failed to protect public health.

Photo courtesy of Shutterstock

The decision is the result of a suit brought by Earthjustice on behalf of the American Lung Association, Environmental Defense Fund (EDF), Natural Resources Defense Council, National Parks Conservation Association, and Appalachian Mountain Club. Also challenging the standards as too weak were the states of  New York, California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, Oregon, Rhode Island, as well as Washington D.C. and New York City.

Health and environmental groups initially filed suit against the Bush Administration following the final EPA decision in May 2008.  Shortly after taking office, the Obama Administration asked the court to put the case on hold while EPA reconsidered the evidence that the standards were too weak to protect public health and welfare. The two-year reconsideration included three public hearings showing overwhelming public comment urging stronger protections, as well as a restatement by the EPA’s independent science advisors of their support for a tighter standard.

Then-EPA Administrator Lisa Jackson had concluded that the Bush-era ozone standards were not sufficiently or lawfully protective of public health. In an abrupt about-face, however, President Obama in September 2011, ordered EPA to leave the 2008 standards in place while continuing its ozone review slated for completion in 2013. EPA has now missed the statutory deadline for completing its ozone review and has not proposed any rulemaking yet.

These organizations resumed the legal battle following the Obama Administration’s decision to continue to ignore the overwhelming scientific research and the opinion of experts that much stronger standards were needed.  
 
Sometimes called smog, ozone is a highly irritating gas found to shorten lives and worsen asthma and other lung diseases. It also is highly damaging to trees and plants, posing a major threat to the nation’s forests. EPA’s science advisers and the National Park Service told EPA a separate ozone standard was warranted to prevent these harms. Although EPA was poised to set such a standard, President Bush at the last minute ordered the agency not to include the secondary standards meant to protect our forests and national parks from smog.
 
“The Bush Administration violated the law in refusing to protect our forests from this dangerous pollutant,” said Earthjustice Attorney David Baron. “EPA must now take strong action to repair the damage.”
 
“Forested landscapes are important ecological resources that are highly valued for providing clean air and water as well as recreational opportunities that support local tourism economies. Protecting them from air pollution has always been a goal of the Clean Air Act, and this ruling underscores the importance of EPA acting on the science to do so effectively,” said Georgia Murray, Appalachian Mountain Club staff scientist.
 
“Smog sickens and even kills some plants and trees, even in America’s national parks, which are supposed to have the cleanest air in the country” said Mark Wenzler, vice president of Climate and Air Quality Programs at the National Parks Conservation Association. “The Obama administration now has an opportunity to follow the science, and not play politics with protecting our national parks and forests from air pollution damage.”
 
The Court rejected challenges by health and environmental groups and states to EPA’s 2008 health standard for ozone.  Although acknowledging that those standards were weaker than recommended unanimously by EPA’s science advisors, the Court found that the agency had not acted arbitrarily in setting the weaker standards.
 
“There is no question that ozone makes people sick and can kill at levels well below the standard EPA set in 2008. Given that overwhelming evidence and the requirement to set the standard where it will protect public health, we are disappointed that the Court upheld this inadequate standard,” explained Janice Nolen, American Lung Association Assistant vice president of national policy. “The evidence continues to grow that we need a stronger standard. The American Lung Association expects that the Obama Administration to follow the science and the law in the current review.”
 
“The scientific evidence for a more protective standard has only become stronger since 2008,” said Elena Craft, Health Scientist for EDF. “Notwithstanding today’s decision, EPA must move forward with stronger standards to protect Americans’ health with an adequate margin of safety in its legally-required review of the 2008 standard, which is now underway.”
 
Not only had the EPA’s science advisors found the health standard inadequate, major health and medical groups, in addition to the American Lung Association, had also supported a much stronger health standard, including the American Academy of Pediatrics, American Thoracic Society and the American Medical Association.
 
“The practical effects of today’s ruling on the health standard should be minimal, because there is on ongoing standard-setting process in which EPA’s science advisers and the nation’s major medical societies have all said we need much stronger smog standards,” said John Walke, clean air director for the Natural Resources Defense Council. “EPA needs to heed that advice, and protect our children and seniors who are especially at risk from smog.”
 
The Court also rejected all challenges to the ozone standards by industry and the state of Mississippi.

Visit EcoWatch’s AIR page for more related news on this topic.

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Ola Elvestrun, Norway's environment minister, announced Thursday that it is freezing its contributions to the Amazon Fund, and will no longer be transferring €300 million ($33.2 million) to Brazil. In a press release, the Norwegian embassy in Brazil stated:

Given the present circumstances, Norway does not have either the legal or the technical basis for making its annual contribution to the Amazon Fund.

Brazilian President Jair Bolsonaro reacted with sarcasm to Norway's decision, which had been widely expected. After an official event, he commented: "Isn't Norway the country that kills whales at the North Pole? Doesn't it also produce oil? It has no basis for telling us what to do. It should give the money to Angela Merkel [the German Chancellor] to reforest Germany."

According to its website, the Amazon Fund is a "REDD+ mechanism created to raise donations for non-reimbursable investments in efforts to prevent, monitor and combat deforestation, as well as to promote the preservation and sustainable use in the Brazilian Amazon." The bulk of funding comes from Norway and Germany.

The annual transfer of funds from developed world donors to the Amazon Fund depends on a report from the Fund's technical committee. This committee meets after the National Institute of Space Research, which gathers official Amazon deforestation data, publishes its annual report with the definitive figures for deforestation in the previous year.

But this year the Amazon Fund's technical committee, along with its steering committee, COFA, were abolished by the Bolsonaro government on 11 April as part of a sweeping move to dissolve some 600 bodies, most of which had NGO involvement. The Bolsonaro government views NGO work in Brazil as a conspiracy to undermine Brazil's sovereignty.

The Brazilian government then demanded far-reaching changes in the way the fund is managed, as documented in a previous article. As a result, the Amazon Fund's technical committee has been unable to meet; Norway says it therefore cannot continue making donations without a favorable report from the committee.

Archer Daniels Midland soy silos in Mato Grosso along the BR-163 highway, where Amazon rainforest has largely been replaced by soy destined for the EU, UK, China and other international markets.

Thaís Borges.

An Uncertain Future

The Amazon Fund was announced during the 2007 United Nations Climate Change Conference in Bali, during a period when environmentalists were alarmed at the rocketing rate of deforestation in the Brazilian Amazon. It was created as a way of encouraging Brazil to continue bringing down the rate of forest conversion to pastures and croplands.

Government agencies, such as IBAMA, Brazil's environmental agency, and NGOs shared Amazon Fund donations. IBAMA used the money primarily to enforce deforestation laws, while the NGOs oversaw projects to support sustainable communities and livelihoods in the Amazon.

There has been some controversy as to whether the Fund has actually achieved its goals: in the three years before the deal, the rate of deforestation fell dramatically but, after money from the Fund started pouring into the Amazon, the rate remained fairly stationary until 2014, when it began to rise once again. But, in general, the international donors have been pleased with the Fund's performance, and until the Bolsonaro government came to office, the program was expected to continue indefinitely.

Norway has been the main donor (94 percent) to the Amazon Fund, followed by Germany (5 percent), and Brazil's state-owned oil company, Petrobrás (1 percent). Over the past 11 years, the Norwegians have made, by far, the biggest contribution: R$3.2 billion ($855 million) out of the total of R$3.4 billion ($903 million).

Up till now the Fund has approved 103 projects, with the dispersal of R$1.8 billion ($478 million). These projects will not be affected by Norway's funding freeze because the donors have already provided the funding and the Brazilian Development Bank is contractually obliged to disburse the money until the end of the projects. But there are another 54 projects, currently being analyzed, whose future is far less secure.

One of the projects left stranded by the dissolution of the Fund's committees is Projeto Frutificar, which should be a three-year project, with a budget of R$29 million ($7.3 million), for the production of açai and cacao by 1,000 small-scale farmers in the states of Amapá and Pará. The project was drawn up by the Brazilian NGO IPAM (Institute of Environmental research in Amazonia).

Paulo Moutinho, an IPAM researcher, told Globo newspaper: "Our program was ready to go when the [Brazilian] government asked for changes in the Fund. It's now stuck in the BNDES. Without funding from Norway, we don't know what will happen to it."

Norway is not the only European nation to be reconsidering the way it funds environmental projects in Brazil. Germany has many environmental projects in the Latin American country, apart from its small contribution to the Amazon Fund, and is deeply concerned about the way the rate of deforestation has been soaring this year.

The German environment ministry told Mongabay that its minister, Svenja Schulze, had decided to put financial support for forest and biodiversity projects in Brazil on hold, with €35 million ($39 million) for various projects now frozen.

The ministry explained why: "The Brazilian government's policy in the Amazon raises doubts whether a consistent reduction in deforestation rates is still being pursued. Only when clarity is restored, can project collaboration be continued."

Bauxite mines in Paragominas, Brazil. The Bolsonaro administration is urging new laws that would allow large-scale mining within Brazil's indigenous reserves.

Hydro / Halvor Molland / Flickr

Alternative Amazon Funding

Although there will certainly be disruption in the short-term as a result of the paralysis in the Amazon Fund, the governors of Brazil's Amazon states, which rely on international funding for their environmental projects, are already scrambling to create alternative channels.

In a press release issued yesterday Helder Barbalho, the governor of Pará, the state with the highest number of projects financed by the Fund, said that he will do all he can to maintain and increase his state partnership with Norway.

Barbalho had announced earlier that his state would be receiving €12.5 million ($11.1 million) to run deforestation monitoring centers in five regions of Pará. Barbalho said: "The state governments' monitoring systems are recording a high level of deforestation in Pará, as in the other Amazon states. The money will be made available to those who want to help [the Pará government reduce deforestation] without this being seen as international intervention."

Amazonas state has funding partnerships with Germany and is negotiating deals with France. "I am talking with countries, mainly European, that are interested in investing in projects in the Amazon," said Amazonas governor Wilson Miranda Lima. "It is important to look at Amazônia, not only from the point of view of conservation, but also — and this is even more important — from the point of view of its citizens. It's impossible to preserve Amazônia if its inhabitants are poor."

Signing of the EU-Mercusor Latin American trading agreement earlier this year. The pact still needs to be ratified.

Council of Hemispheric Affairs

Looming International Difficulties

The Bolsonaro government's perceived reluctance to take effective measures to curb deforestation may in the longer-term lead to a far more serious problem than the paralysis of the Amazon Fund.

In June, the European Union and Mercosur, the South American trade bloc, reached an agreement to create the largest trading bloc in the world. If all goes ahead as planned, the pact would account for a quarter of the world's economy, involving 780 million people, and remove import tariffs on 90 percent of the goods traded between the two blocs. The Brazilian government has predicted that the deal will lead to an increase of almost $100 billion in Brazilian exports, particularly agricultural products, by 2035.

But the huge surge this year in Amazon deforestation is leading some European countries to think twice about ratifying the deal. In an interview with Mongabay, the German environment ministry made it very clear that Germany is very worried about events in the Amazon: "We are deeply concerned given the pace of destruction in Brazil … The Amazon Forest is vital for the atmospheric circulation and considered as one of the tipping points of the climate system."

The ministry stated that, for the trade deal to go ahead, Brazil must carry out its commitment under the Paris Climate agreement to reduce its greenhouse gas emissions by 43 percent below the 2005 level by 2030. The German environment ministry said: If the trade deal is to go ahead, "It is necessary that Brazil is effectively implementing its climate change objectives adopted under the [Paris] Agreement. It is precisely this commitment that is expressly confirmed in the text of the EU-Mercosur Free Trade Agreement."

Blairo Maggi, Brazil agriculture minister under the Temer administration, and a major shareholder in Amaggi, the largest Brazilian-owned commodities trading company, has said very little in public since Bolsonaro came to power; he's been "in a voluntary retreat," as he puts it. But Maggi is so concerned about the damage Bolsonaro's off the cuff remarks and policies are doing to international relationships he decided to speak out earlier this week.

Former Brazil Agriculture Minister Blairo Maggi, who has broken a self-imposed silence to criticize the Bolsonaro government, saying that its rhetoric and policies could threaten Brazil's international commodities trade.

Senado Federal / Visualhunt / CC BY

Maggi, a ruralista who strongly supports agribusiness, told the newspaper, Valor Econômico, that, even if the European Union doesn't get to the point of tearing up a deal that has taken 20 years to negotiate, there could be long delays. "These environmental confusions could create a situation in which the EU says that Brazil isn't sticking to the rules." Maggi speculated. "France doesn't want the deal and perhaps it is taking advantage of the situation to tear it up. Or the deal could take much longer to ratify — three, five years."

Such a delay could have severe repercussions for Brazil's struggling economy which relies heavily on its commodities trade with the EU. Analysists say that Bolsonaro's fears over such an outcome could be one reason for his recently announced October meeting with Chinese President Xi Jinping, another key trading partner.

Maggi is worried about another, even more alarming, potential consequence of Bolsonaro's failure to stem illegal deforestation — Brazil could be hit by a boycott by its foreign customers. "I don't buy this idea that the world needs Brazil … We are only a player and, worse still, replaceable." Maggi warns, "As an exporter, I'm telling you: things are getting very difficult. Brazil has been saying for years that it is possible to produce and preserve, but with this [Bolsonaro administration] rhetoric, we are going back to square one … We could find markets closed to us."

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