Call of the Swan, 6th Day of Hagwinter, 525 M.E. (Electra): Are greenhouse gases pollutants? Back in 2009, the Supreme Court said that yes, they were, but now EPA is poised to rule that pollutant or not, they pose no danger. The previous endangerment finding will be struck down, freeing power companies to emit as much greenhouse gas as they want and car makers to eliminate emission controls on their vehicles.

The Stable Genius' EPA and his MAGA admin don't understand how carbon dioxide, a naturally occurring compound and a major component of the Earth's atmosphere, can be considered a "pollutant." Don't plants require CO₂ to live? Humans exhale CO₂ - will we be regulating breath next? 

The question of whether natural substances can be pollutants came up in a court case in which I participated back in my working days. 

Grocery stores and supermarkets return to their supplier those eggs that have broken or spoiled, rather than dispose of the smelly waste in their dumpsters. The suppliers have no shortage of broken or otherwise unsellable eggs of their own, and have means and methods to properly dispose of the waste that are unavailable to the retailers. 

One day, a big tanker truck filled with the waste and clearly marked "Inedible Egg Product," was traveling from a supplier in north Georgia to a proper waste-disposal facility. Unfortunately, the truck ran off the road, overturned, and spilled many gallons of the inedible egg product into a creek. No one was hurt, fortunately, but the egg waste in the water resulted in a fish kill. In addition to their cost for the cleanup, towing and repairing the truck, etc., the supplier and the hauler were fined by the state for environmental damages to the creek. 

Fortunately, both the supplier and the hauler were insured, but the insurance company declined to pay for the cleanup costs or the fine. Both companies had environmental policies, which per the wording covered the cost for "accidental releases of pollutants to the environment."  However, eggs, the insurance company decided, even inedible egg waste, aren't a pollutant identified in any state or federal regulations and therefore don't qualify for coverage under the policy. Lawsuits ensued.

I was hired by the attorneys for the supplier as an expert on environmental regulation. My argument was the inedible egg product, as it had no further use, was heading for disposal. As such, it was a waste that met the regulatory definition of "solid waste." If you're new to environmental law, don't get hung up on the word "solid" - even wastewater is a "solid waste." It's "solid" as in "material" or "tangible," not a state as opposed to liquid or gas. The disposal of solid waste into a creek, I argued, was forbidden by law and was a form of pollution, and therefore qualified for coverage under the policy.

I got a condescending pat on the head from the attorneys for that one, as if they hadn't already thought of that. Unfortunately, "pollutant" was defined in the policy as those substances specifically identified in the applicable laws and statutes. Everything from arsenic to zinc, from acetone to the pesticide ziram,  were listed, but nope, there was no listing under E for "eggs," there were no discharge standards for eggs or egg waste, and there were on maximum allowable concentrations for eggs or egg waste in water bodies. What else you got, kid?

That was frustrating. The egg waste killed the fish and egg waste isn't a natural component of freshwater streams, but I couldn't prove that the egg waste in the creek met the policy definition of a pollutant. But then it dawned on me: the eggs themselves didn't kill the fish, the fish suffocated after the bacteria breaking down the waste consumed all the available oxygen dissolved in the stream. There are no standards for egg waste in the regulations, but there are standards for biological oxygen demand, and BOD levels are monitored and strictly controlled by EPA and the states. BOD is a pollutant.

A simple lab test can assign a numerical BOD value to any organic substance, and one gallon of egg waste has an equivalent value of x mg/L of BOD. Instead of thinking of the tanker as holding some number of gallons of egg waste, from a regulatory viewpoint it should be considered as having a number of pounds of BOD. Using some hypothetical values, 2,000 gallons of eggs with a BOD of 0.08 pounds per gallon is 160 pounds of BOD. And since BOD is a regulated pollutant, an unpermitted release of 160 pounds of BOD into a water body qualified for coverage under the insurance policy.

That gave the attorneys pause. It was a valid argument they had to agree, but from a trial POV, it might be too complex or abstract for a judge and jury to understand. But as happens so often in these lawsuits, both sides agreed to a compromise settlement and the case, and my BOD argument, never saw the inside of a courtroom.

All of which is a longwinded way of explaining that even though it is naturally occurring, in large enough quantities, greenhouse gasses like CO₂ have heat-trapping and insulating properties just like the egg waste has a biological oxygen demand. The release of industrial quantities of CO₂ poses an endangerment to the climate and hence to human health and the environment. 

Even the imbeciles on the corrupt Supreme Court understood that, but apparently not the Stable Genius or his grossly unqualified EPA administrator.