05 August 23
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Pondering a historic document
After all, this isn’t the first indictment he has faced, or even the first in federal court. It isn’t the first time we have had to grapple with his moral failings, the unleashing of political violence, or the degradation of our constitutional order.
Much of what is in the document made public on Tuesday we knew before. We saw it unfold on TV. We read the reporting of its aftermath. We heard the gripping public testimony in front of the bipartisan House Select Committee that investigated the insurrection of January 6.
It wasn’t even that the indictment was a surprise. For a long time, the investigation has been in the public consciousness. After Trump announced that he had been told he was a target, it was mostly a matter of when, not if.
It is important to keep in mind that this latest indictment does not charge Trump with arguably the gravest potential crimes, like insurrection or sedition, even though many who watched in horror the events leading up to and cresting on January 6 think it obvious he is guilty of both.
Randall Eliason, a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia, argued in a New York Times opinion piece titled “What Makes Jack Smith’s New Trump Indictment So Smart” that the special counsel wisely chose to limit the scope of the case (and the number of defendants) to just Trump despite the six other unnamed but easily identifiable co-conspirators. Smith did this, the piece points out, in order to proceed quickly to trial and yield the best chance at conviction. “Although it might have been psychologically gratifying to see Mr. Trump charged with sedition, the name of the legal charge is less important than the facts that will make up the government’s case,” Eliason wrote.
In other words, Smith decided not to try to prove too much; keep the charges few and based on what facts he believes are most likely to convince a jury — and whatever part of the public may be open to persuasion.
Let us stop for a moment to ponder these facts and the narrative they tell. They are chilling, but we must remember the Department of Justice will have to prove them in a court of law. Trump is presumed not guilty until and unless he is proven otherwise. He has every right to mount a vigorous defense. It’s probably best for the country that his lawyers fight hard and smart. The more thoroughly this case is adjudicated, the more its conclusion is likely to be strengthened by the process.
But in reading the indictment, all who love and care for our precious republic and its democratic traditions should feel a deep shudder of fear that we were driven to such a precipice. The writing itself is not fancy — no stacking of dependent clauses or diving into a thesaurus in search of adjectives. Reading the introduction aloud, it almost has the syncopation of a children’s picture book, even if the story it tells is one of horror:
The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020.
The Defendant lost the 2020 presidential election.
Despite having lost, the Defendant was determined to remain in power.
So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won.
These claims were false, and the Defendant knew that they were false.
But the Defendant repeated and widely disseminated them anyway — to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.
He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.
Indeed, in many cases, the Defendant did pursue these methods of contesting the election results.
His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election result.
What follows that in the indictment is a story we all saw unfold in real time, laid bare in a double-spaced legal document. There is also a lot to read between the lines. Even former Trump Attorney General Bill Barr, who enabled many of Trump’s worst instincts and misled the American public about Trump’s fitness for office, told CNN he thinks prosecutors have more evidence than what they have shared thus far. He called the indictment “very spare” and added, “I think there’s a lot more to come and I think they have a lot more evidence as to President Trump’s state of mind.”
Be that as it may, these 45 pages comprise one of the most consequential pieces of writing in American history. It does not have the earth-shattering rhetoric of our Declaration of Independence, the poetry of Lincoln’s “Gettysburg Address” or the urgent morality of Dr. Martin Luther King’s “Letter from Birmingham Jail.” But it is a clear statement at one of the most pivotal intersections in our nation’s narrative; that autocracy and the fomenting of political violence to subvert the peaceful transfer of presidential power is not only anathema to our values — it is illegal.
History is riddled with “what ifs.” We are left to ponder what the worst outcomes might have been if things had turned out differently, from our own revolution, to World War II, to the Cuban Missile Crisis. January 6 should be added to that list.
As bad as it was, it could have been (and came close to being) much worse. And that reality bursts forth from this indictment. According to what is written in the indictment, violence was expected by Trump and his co-conspirators. They understood that their schemes to steal an election would almost certainly plunge the nation into chaos. That was the plan.
In the end, their plot was unsuccessful, but the danger has not receded. Trump is running for president. At this point he is the favorite, by far, to win the Republican nomination. And that means he could win reelection. That result would likely usher in chaos, greater and deeper division than even what we now have. It could very well end the country as we know it.
That may sound to some to be hyperbole, but by any reasonable analysis, that is a lesson to be learned from this indictment. And that is what Jack Smith hopes to prove in federal court. One can make a credible argument that this is one of (if not THE) most consequential criminal cases in American history.
A former and potentially future president is accused of trying to destroy the United States. His own vice president is a key witness. You couldn’t make this up. But this is the reality of what we face. Democracy is always fragile and must be fought for to survive. A free people must constantly be on alert and working to preserve their liberty.
At the birth of our nation, Benjamin Franklin is said to have quipped that the Framers had produced “a republic, if you can keep it.” Lincoln, in his Gettysburg Address, spoke of how the Civil War was a “test” of whether a nation “conceived in Liberty, and dedicated to the proposition that all men are created equal ... can long endure.” We, the people, can take nothing for granted.
This concept of the United States of America, still relatively new in human history, is impossible to maintain without the continual peaceful transfer of power at the top. That is what this new indictment is about.
In his first inaugural address as governor of California in 1967, Ronald Reagan spoke eloquently of this truth:
“We are participating in the orderly transfer of administrative authority by direction of the people. And this is the simple magic of the commonplace routine, which makes it a near miracle to many of the world’s inhabitants. This continuing fact that the people, by democratic process, can delegate power, and yet retain the custody of it. Perhaps you and I have lived too long with this miracle to properly be appreciative. Freedom is a fragile thing and it's never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation.”
This is what is at stake for the generations alive today. It is an epic battle that will now take place in federal court as well as at the ballot box.
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Attorney General Merrick Garland. (photo: Susan Walsh)
Prosecutors asked U.S. District Court Judge Tanya Chutkan to issue a protective order in the case a day after Trump pleaded not guilty to charges of trying to overturn his 2020 election loss and block the peaceful transition of power. The order — which is different from a so-called "gag order" — would limit what information Trump and his legal team could share publicly about the case brought by special counsel Jack Smith.
Such protective orders are common in criminal cases, but prosecutors said it's "particularly important in this case" because Trump has posted on social media about "witnesses, judges, attorneys, and others associated with legal matters pending against him."
Prosecutors pointed specifically to a post on Trump's Truth Social platform from earlier Friday in which Trump wrote, in all capital letters, "If you go after me, I'm coming after you!"
Prosecutors said they are ready to hand over a "substantial" amount of evidence — "much of which includes sensitive and confidential information" — to Trump's legal team.
They told the judge that if Trump were to begin posting about grand jury transcripts or other evidence provided by the Justice Department, it could have a "harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case."
Prosecutors' proposed protective order seeks to prevent Trump and his lawyers from disclosing materials provided by the government to anyone other than people on his legal team, possible witnesses, the witnesses' lawyers or others approved by the court. It would put stricter limits on "sensitive materials," which would include grand jury witness testimony and materials obtained through sealed search warrants.
A Trump spokesperson said in an emailed statement that the former president's post "is the definition of political speech," and was made in response to "dishonest special interest groups and Super PACs."
The indictment unsealed this week accuses Trump of brazenly conspiring with allies to spread falsehoods and concoct schemes intended to overturn his election loss to President Joe Biden as his legal challenges floundered in court.
The indictment chronicles how Trump and his Republican allies, in what Smith described as an attack on a "bedrock function of the U.S. government," repeatedly lied about the results in the two months after he lost the election and pressured his vice president, Mike Pence, and state election officials to take action to help him cling to power.
Trump faces charges including conspiracy to defraud the U.S. and conspiracy to obstruct Congress' certification of Biden's electoral victory.
It's the third criminal case brought this year against the early front-runner in the 2024 Republican presidential primary. But it's the first case to try to hold Trump responsible for his efforts to remain in power during the chaotic weeks between his election loss and the attack by his supporters on the U.S. Capitol on Jan. 6, 2021.
After his court appearance on Thursday before a magistrate judge, Trump characterized the case as a "persecution" designed to hurt his 2024 presidential campaign. His legal team has described it as an attack on his right to free speech and his right to challenge an election that he believed had been stolen.
Smith has said prosecutors will seek a "speedy trial" against Trump in the election case. Judge Chutkan has ordered the government to file a brief by Thursday proposing a trial date. The first court hearing in front of Chutkan is scheduled for Aug. 28.
Trump is already scheduled to stand trial in March in the New York case stemming from hush-money payments made during the 2016 campaign and in May in the federal case in Florida stemming from classified documents found at his Mar-a-Lago estate.
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Ballots being counted. (photo: Mark Henle/The Republic)
He stepped outside briefly to speak about how the decision to indict Donald Trump for conspiracy to overturn the 2020 election came from career prosecutors and was led by a special counsel committed to “accountability and independence.”
In other words, this wasn’t about politics.
Try as Garland might, though, there is no escaping the politics of the moment when the Justice Department of a president who is running for reelection is indicting his chief political rival, the front-runner for the Republican nomination.
And though he has distanced himself from the investigation since he appointed special counsel Jack Smith 10 months ago, Garland has the last word on matters related to the prosecution of Trump as long as he is the attorney general.
The Justice Department is facing its biggest test in history — navigating unprecedented conditions in American democracy while trying to fight back against relentless attacks on its own credibility and that of the U.S. election system. The success or failure of the case has the potential to affect the standing of the department for years to come.
“In grand terms this is a really huge historic moment for the Department of Justice,” said Wendy Weiser, vice president for the Democracy Program at the Brennan Center for Justice.
President Joe Biden has sought to distance himself from the Justice Department to avoid any appearance of meddling when the agency is not only probing Trump, but also the president’s son Hunter. But it’s going to get more challenging for Biden, too. Anything he says about the Jan. 6, 2021, insurrection at the Capitol from now on could complicate matters for prosecutors. And any trial is likely to take place against the backdrop of the 2024 presidential election.
The latest indictment is the third criminal case filed against Trump this year, but the first to try to hold him criminally responsible for his efforts to cling to power in the weeks between his election loss and the Capitol attack that stunned the world. He pleaded not guilty on Thursday before a federal magistrate judge and was ordered not to speak about the case with any potential witnesses.
Trump has said he did nothing wrong and has accused Smith of trying to thwart his chances of returning to the White House in 2024. Trump and other Republicans have railed against the investigation and the Justice Department in general, claiming a two-tiered system of justice that vilifies Trump and goes easy on Biden’s son, who was accused of tax crimes after a yearslong probe.
“Another dark day in America as Joe Biden continues to weaponize his corrupt Department of Justice against his leading political opponent Donald J. Trump,” said U.S. Rep Elise Stefanik, R-N.Y.
Trump’s own Justice Department was subject to complaints of politicization, drawing heavy criticism as the federal probe of Russia’s 2016 election interference thrust prosecutors center stage and dragged out scandals that Trump seized on as proof of a “deep state” operating against him.
The release of the Russia report by special counsel Robert Mueller was colored by politics, with then-Attorney General William Barr issuing a four-page memo ahead of the report that was widely criticized as spinning the investigation’s findings in favor of Trump. Mueller’s actual report — two volumes and 448 pages — was far more nuanced and laid out in part how Trump directed others to influence or curtail the Russia investigation after the special counsel’s appointment in May 2017.
On Nov. 9, 2020, as Trump began to suggest with no evidence there might be widespread voter fraud, Barr issued a directive pushing prosecutors to investigate any suspected instances. But by the waning days of the Trump administration Barr had turned against Trump, telling The Associated Press before he told the president that there had been no widespread election fraud.
Garland, a longtime federal appeals court judge who had been Barack Obama’s choice for the U.S. Supreme Court but never got a hearing, was chosen by President Biden to be a stabilizing force. He promised to return the Justice Department to “normal,” restoring its reputation for political independence and ensuring equal justice.
Throughout his career, Garland has been steeped in Justice Department procedures and norms, and as a judge his decisions were thorough but “judicially modest,” said Jamie Gorelick, a lawyer who served as deputy attorney general in the 1990s and has been a Garland colleague and friend for decades.
“His view was, you do what you need to thoroughly and well and you don’t reach, you don’t do more than you have to do,” she said.
While Garland hasn’t been directly involved with the Trump case since naming Smith as special counsel, the indictment handed down Tuesday reflects a similar approach, she said. “It doesn’t rely on crazy new theories. It does not try to do more when less would be more effective,” she said.
Indeed, the indictment covered much of same ground that played out on live TV, or was unearthed in the House investigation into the Jan. 6 insurrection, where violent protesters beat and bloodied police officers, smashed through windows and occupied the Capitol for hours.
If Smith loses the case, the Justice Department could lose credibility, particularly as the barrage of Republican attacks against the department grows. If prosecutors win, a former president could see time behind bars. If Trump is reelected, he could undo the charges and has said he plans to “completely overhaul the federal Department of Justice and FBI,” part of a larger effort by Trump to push more power toward the presidency.
“There are pieces now in play that the Justice Department is going to continue to take on for years to come,” said Robert Sanders, a senior lecturer of national security at the University of New Haven. “The next 12 months are going to be a critical stage in the history of this nation.”
Against that fraught backdrop, the broader work of the department goes on.
On the same day Trump was arraigned in Washington, federal prosecutors announced guilty pleas in a racist assault on two Black men who were brutalized during a home raid in Mississippi. And U.S. officials also announced the arrest of two U.S. Navy soldiers for spying for China in California.
Garland, during his Philadelphia visit, went almost immediately back to the community event he’d gone there to observe, chatting with police officers outside, as reporters shouted questions about the unprecedented indictment. But Garland wouldn’t bite.
“I appointed Jack Smith special council to take on the ongoing investigation in order to underline the department’s commitment to accountability and independence,” he said. “Any questions about this matter will have to be answered by the filings made in the courtroom.”
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U.S. Army soldiers patrol a village in Kandahar province in Afghanistan, Sept. 8, 2012. (photo: Tony Karumba/AFP)
Donald Trump pardoned Clint Lorance, a former Army officer convicted of murdering innocent civilians in Afghanistan.
Lorance, who won his pardon following an advocacy campaign by conservative activists and Republican politicians, left prison in 2019 thanks to Trump. Since then, he has by all accounts moved on with his life. He has written two books: one on his experience being charged with war crimes and another offering tips for millennial conservative activists on how to ensure that the U.S. will “always lead the world in everything.”
In his latest post-murder move, Lorance is working to become a lawyer. After graduating from Appalachia School of Law this May, he is now also reportedly sitting the Oklahoma bar exam and applying to practice law in the state.
The idea of a convicted war criminal being tasked with interpreting and upholding the law in the U.S. has rankled a few — most notably Lorance’s former military comrades. It was the men in his unit who turned him in after witnessing his murder of two innocent Afghan villagers, Haji Mohammed Aslam and Ghamai Abdul Haq. They testified against him at his court-martial.
Now, one of the men from his unit is making his objections official. In response to the news that Lorance would sit the bar exam, Todd Fitzgerald issued a letter to the Oklahoma Bar Association calling on his one-time commander to be denied certification to practice law in the state.
Fitzgerald, a former Army soldier who served with Lorance in the 82nd Airborne Division in Kandahar and witnessed his crimes, sent his letter late last month. The missive outlined a series of events that he and his fellow soldiers witnessed during the period they were briefly under Lorance’s volatile command — for all of three days — before he murdered the two civilians.
“His actions during the three days he was in charge of our platoon were deliberate and he repeatedly displayed an astonishing lack of candor so egregious that resulted in his being reported, detained, and eventually convicted and sentenced based on the testimony of myself and many other eyewitnesses,” Fitzgerald wrote in his letter to the bar. (Neither Lorance nor the Oklahoma Bar responded to requests for comment.)
Over the span of those three short days, Fitzgerald wrote, after Lorance was sent to their outpost, soldiers witnessed him pointing a gun in the face of an elderly Afghan man while counting down in preparation to kill him, directing random fire into a village, ordering his reluctant troops to open fire and kill two unarmed men on a motorcycle, and then threatening to kill the crying women and children from the village who came to collect the dead men’s bodies afterwards.
In his letter, Fitzgerald said that Lorance had “acted cruelly and inhumanely, without provocation, and to the detriment of innocent lives as well as the safety of everyone else around.” The letter accuses Lorance of creating a false narrative in his defense that the men he had ordered killed, villagers known to U.S. troops, had been supporters of the Taliban, while characterizing himself as a victim of a politicized military justice system. The killings of the two men, Fitzgerald said, not only devastated the residents of the nearby village but also destroyed efforts by the U.S. military to cooperate with them against the Taliban.
“He has since refused to acknowledge any responsibility for his own actions,” Fitzgerald added in his letter, “instead making a point to say that he takes responsibility for our actions as if he were protecting us when the truth is that he endangered all of our lives by causing the deaths of people who had been previously helping us and destroying the relationship we had built up with the local nationals.”
Fitzgerald is not the only one from Lorance’s platoon who had this sentiment about their former commanding officer. In the wake of his pardon, a number of them came forward to describe their reactions, with one describing it as a “nightmare.” While Lorance has become a cause célèbre on segments of the right, with Trump even bringing him and other pardoned war criminals on stage with him at public events, the soldiers who served under Lorance’s command and witnessed his actions while on duty have suffered from post-traumatic stress disorder, alcoholism, suicide, and drug abuse since leaving the military.
In an op-ed for the Army Times published last month, another soldier who served under Lorance in Afghanistan, Mike McGuinness, also called for the Oklahoma bar to deny Lorance’s bid to practice law. McGuinness described Lorance as morally unfit to be entrusted with upholding or interpreting the law in any circumstance.
“Giving orders to shoot unarmed people, threatening women and children, and then asking subordinates to cover it up is pretty damning evidence of a lack of moral fiber,” McGuinness wrote. “What displays that even more is Lorance’s insistence that he was the victim, his complete lack of remorse, and his failure to take accountability for his actions in Afghanistan.”
Trump Pardons
Lorance had initially been sentenced to 19 years in prison following his 2013 court-martial on murder charges. He was released from prison in 2019, following a successful campaign by conservative activists and commentators — including Fox News hosts Sean Hannity and Pete Hegseth, as well as current and former GOP politicians Duncan Hunter, Paul Gosar, and Adam Kinzinger — to lobby Trump for his pardon.
Lorance’s pardon — and subsequent self-reinvention as a conservative activist, author, and would-be lawyer — was only one consequence of Trump’s embrace of convicted war criminals during his time in office. In addition to Lorance, Trump pardoned a group of Blackwater mercenaries convicted of a notorious massacre in Iraq, former Navy SEAL Eddie Gallagher, and a host of other soldiers convicted by military courts of murdering civilians in Iraq and Afghanistan. These pardons were often issued over the objections of U.S. military lawyers, senior military commanders, and other Pentagon officials, who criticized the moves as undermining military discipline and harming the reputation of the armed forces.
Today, Lorance’s LinkedIn page describes himself as a “military justice reform advocate” as well as “Iraq & Afghanistan veteran & author.” The page says he completed his degree at Appalachian School of Law in May of this year. It’s unclear whether the outcry from other veterans who served with him will be enough to stop Lorance from practicing law in Oklahoma, particularly given his support from a range of powerful conservative politicians who advocated for his pardon. Despite his unpopularity with the troops he commanded, he remains a celebrated figure on the Republican right, who have characterized their defense of Lorance as an act of loyalty to U.S. service members.
Yet the celebration of a war criminal, convicted by the military’s own court system, coupled with the neglect of those who served under him and tried to do the right thing has left a painful memory for Fitzgerald and others who spoke out against Lorance. In his letter to the Oklahoma bar, Fitzgerald called for the institution to take a moral stand against Lorance by refusing him admission in light of the grave crimes for which he had been convicted.
“It is my utmost respect for the rule of law and the institutions that uphold these laws that drives me to send this communication. It has been a terrible experience and a moral injury to live through the murders of two innocent men. It would be a much greater injustice to say nothing while the person responsible takes no accountability and attempts to exert influence over the lives of others in any position of authority or control again,” wrote Fitzgerald. “This is a plea of conscience, for the men who were killed unjustly and are not here to advocate for themselves, for their families, and for all of the other surviving witnesses that live with the weight of this burden on their hearts and souls.”
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Pollution from a factory. (photo: Science Focus)
An EPA document shows that a new Chevron fuel ingredient has a lifetime cancer risk more than 1 million times higher than what the agency usually finds acceptable — even greater than another Chevron fuel’s sky-high risk disclosed earlier this year.
Federal law requires the EPA to conduct safety reviews before allowing new chemical products onto the market. If the agency finds that a substance causes unreasonable risk to health or the environment, the EPA is not allowed to approve it without first finding ways to reduce that risk.
But the agency did not do that in this case. Instead, the EPA decided its scientists were overstating the risks and gave Chevron the go-ahead to make the new boat fuel ingredient at its refinery in Pascagoula, Mississippi. Though the substance can poison air and contaminate water, EPA officials mandated no remedies other than requiring workers to wear gloves, records show.
ProPublica and the Guardian in February reported on the risks of other new plastic-based Chevron fuels that were also approved under an EPA program that the agency had touted as a “climate-friendly” way to boost alternatives to petroleum-based fuels. That story was based on an EPA consent order, a legally binding document the agency issues to address risks to health or the environment. In the Chevron consent order, the highest noted risk came from a jet fuel that was expected to create air pollution so toxic that 1 out of 4 people exposed to it over a lifetime could get cancer.
In February, ProPublica and the Guardian asked the EPA for its scientists’ risk assessment, which underpinned the consent order. The agency declined to provide it, so ProPublica requested it under the Freedom of Information Act. The 203-page risk assessment revealed that, for the boat fuel ingredient, there was a far higher risk that was not in the consent order. EPA scientists included figures that made it possible for ProPublica to calculate the lifetime cancer risk from breathing air pollution that comes from a boat engine burning the fuel. That calculation, which was confirmed by the EPA, came out to 1.3 in 1, meaning every person exposed to it over the course of a full lifetime would be expected to get cancer.
Such risks are exceedingly unusual, according to Maria Doa, a scientist who worked at EPA for 30 years and once directed the division that managed the risks posed by chemicals. The EPA division that approves new chemicals usually limits lifetime cancer risk from an air pollutant to 1 additional case of cancer in a million people. That means that if a million people are continuously exposed over a presumed lifetime of 70 years, there would likely be at least one case of cancer on top of those from other risks people already face.
When Doa first saw the 1-in-4 cancer risk for the jet fuel, she thought it must have been a typo. The even higher cancer risk for the boat fuel component left her struggling for words. “I had never seen a 1-in-4 risk before this, let alone a 1.3-in-1,” said Doa. “This is ridiculously high.”
Another serious cancer risk associated with the boat fuel ingredient that was documented in the risk assessment was also missing from the consent order. For every 100 people who ate fish raised in water contaminated with that same product over a lifetime, seven would be expected to develop cancer — a risk that’s 70,000 times what the agency usually considers acceptable.
When asked why it didn’t include those sky-high risks in the consent order, the EPA acknowledged having made a mistake. This information “was inadvertently not included in the consent order,” an agency spokesperson said in an email.
Nevertheless, in response to questions, the agency wrote, “EPA considered the full range of values described in the risk assessment to develop its risk management approach for these” fuels. The statement said that the cancer risk estimates were “extremely unlikely and reported with high uncertainty.” Because it used conservative assumptions when modeling, the EPA said, it had significantly overestimated the cancer risks posed by both the jet fuel and the component of marine fuel. The agency assumed, for instance, that every plane at an airport would be idling on a runway burning an entire tank of fuel, that the cancer-causing components would be present in the exhaust and that residents nearby would breathe that exhaust every day over their lifetime.
In addition, the EPA also said that it determined the risks from the new chemicals were similar to those from fuels that have been made for years, so the agency relied on existing laws rather than calling for additional protections. But the Toxic Substances Control Act requires the EPA to review every new chemical — no matter how similar to existing ones. Most petroleum-based fuels were never assessed under the law because existing chemicals were exempted from review when it passed in 1976. Studies show people living near refineries have elevated cancer rates.
“EPA recognizes that the model it used in its risk assessments was not designed in a way that led to realistic risk estimates for some of the transportation fuel uses,” an agency spokesperson wrote. For weeks, ProPublica asked what a realistic cancer risk estimate for the fuels would be, but the agency did not provide one by the time of publication.
New chemicals are treated differently under federal law than ones that are already being sold. If the agency is unsure of the dangers posed by a new chemical, the law allows the EPA to order tests to clarify the potential health and environmental harms. The agency can also require that companies monitor the air for emissions or reduce the release of pollutants. It can also restrict the use of new products or bar their production altogether. But in this case, the agency didn’t do any of those things.
Six environmental organizations concerned about the risks from the fuels — the Sierra Club, Natural Resources Defense Council, Moms Clean Air Force, Toxic-Free Future, Environmental Defense Fund and Beyond Plastics — are challenging the agency’s characterization of the cancer risks. “EPA’s assertion that the assumptions in the risk assessment are overly conservative is not supported,” the groups wrote in a letter sent Wednesday to EPA administrator Michael Regan. The groups accused the agency of failing to protect people from dangers posed by the fuels and urged the EPA to withdraw the consent order approving them.
Chevron has not started making the new fuels, the EPA said.
Separately, the EPA acknowledged that it had mislabeled critical information about the harmful emissions. The consent order said the 1-in-4 lifetime cancer risk referred to “stack air” — a term for pollution released through a smokestack. The cancer burden from smokestack pollution would fall on residents who live near the refinery. And indeed a community group in Pascagoula sued the EPA, asking the U.S. Court of Appeals in Washington, D.C., to invalidate the agency’s approval of the chemicals.
But the agency now says that those numbers in the consent order do not reflect the cancer risk posed by air from refinery smokestacks. When the consent order said stack emissions, the EPA says, it really meant pollution released from the exhaust of the jets and boats powered by these fuels.
“We understand that this may have caused a misunderstanding,” the EPA wrote in its response to ProPublica.
Based on that explanation, the extraordinary cancer burden would fall on people near boats or idling airplanes that use the fuels — not those living near the Chevron refinery in Pascagoula.
Each of the two cancer-causing products is expected to be used at 100 sites, the EPA confirmed. ProPublica asked for the exact locations where the public might encounter them, but Chevron declined to say. The EPA said it didn’t know the locations and didn’t even know whether the marine fuel would be used for a Navy vessel, a cruise ship or a motorboat.
In an email, a Chevron spokesperson referred questions to the EPA and added: “The safety of our employees, contractors and communities are our first priority. We place the highest priority on the health and safety of our workforce and protection of our assets, communities and the environment.”
Doa, the former EPA scientist who worked at the agency for three decades, said she had never known the EPA to misidentify a source of pollution in a consent order. “When I was there, if we said something was stack emissions, we meant that they were stack emissions,” she said.
During multiple email exchanges with ProPublica and the Guardian leading up to the February story, the EPA never said that cancer risks listed as coming from stack emissions were actually from boat and airplane exhaust. The agency did not explain why it initially chose not to tell ProPublica and the Guardian that the EPA had mislabeled the emissions.
The agency faced scrutiny after the February story in ProPublica and the Guardian. In an April letter to EPA administrator Michael Regan, Sen. Jeff Merkley, the Oregon Democrat who chairs the Senate’s subcommittee on environmental justice and chemical safety, said he was troubled by the high cancer risks and the fact that the EPA approved the new chemicals using a program meant to address the climate crisis.
EPA assistant administrator Michal Freedhoff told Merkley in a letter earlier this year that the 1-in-4 cancer risk stemmed from exposure to the exhaust of idling airplanes and the real risk to the residents who live near the Pascagoula refinery was “on the order of one in a hundred thousand,” meaning it would cause one case of cancer in 100,000 people exposed over a lifetime.
Told about the even higher cancer risk from the boat fuel ingredient, Merkley said in an email, “It remains deeply concerning that fossil fuel companies are spinning what is a complicated method of burning plastics, that is actually poisoning communities, as beneficial to the climate. We don’t understand the cancer risks associated with creating or using fuels derived from plastics.”
Merkley said he is “leaving no stone unturned while digging into the full scope of the problem, including looking into EPA’s program.”
He added, “Thanks to the dogged reporting from ProPublica we are getting a better sense of the scale and magnitude of this program that has raised so many concerns.”
The risk assessment makes it clear that cancer is not the only problem. Some of the new fuels pose additional risks to infants, the document said, but the EPA didn’t quantify the effects or do anything to limit those harms, and the agency wouldn’t answer questions about them.
Some of these newly approved toxic chemicals are expected to persist in nature and accumulate in living things, the risk assessment said. That combination is supposed to trigger additional restrictions under EPA policy, including prohibitions on releasing the chemicals into water. Yet the agency lists the risk from eating fish contaminated with several of the compounds, suggesting they are expected to get into water. When asked about this, an EPA spokesperson wrote that the agency’s testing protocols for persistence, bioaccumulation and toxicity are “unsuitable for complex mixtures” and contended that these substances are similar to existing petroleum-based fuels.
The EPA has taken one major step in response to concerns about the plastic-based chemicals. In June, it proposed a rule that would require companies to contact the agency before making any of 18 fuels and related compounds listed in the Chevron consent order. The EPA would then have the option of requiring tests to ensure that the oil used to create the new fuels doesn’t contain unsafe contaminants often found in plastic, including certain flame retardants, heavy metals, dioxins and PFAS. If approved, the rule will require Chevron to undergo such a review before producing the fuels, according to the EPA.
But environmental advocates say that the new information about the plastic-based chemicals has left them convinced that, even without additional contamination, the fuels will pose a grave risk.
“This new information just raises more questions about why they didn’t do this the right way,” said Daniel Rosenberg, director of federal toxics policy at NRDC. “The more that comes out about this, the worse it looks.”
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A destroyed silo at the scene of the port explosion that took place in Beirut, Lebanon. (photo: Str/AFP)
The third anniversary of the biggest non-nuclear blast in history is being used by families of the 236 who died to call for an international inquiry.
People affected by the horrific explosion in 2020 called on the UN’s Human Rights Council in an open letter supported by more than 300 organisations and individuals. Their hopes of getting justice from the local Lebanese courts grow dimmer by the day as the legal saga drags on without any resolution.
“On the third anniversary of the explosion, we are no closer to justice and accountability for the catastrophe that damaged half of the capital city,” said the letter, which was put out by Human Rights Watch. It added that “the Lebanese authorities have repeatedly interfered with, obstructed and undermined the domestic investigation.”
“Uncovering the truth of what happened on 4 August 2020 is the only way to prevent such a tragedy from occurring in the future and is pivotal to ensure redress after the devastation of that day,” it said.
The blast, which was caused by a fire that ignited nearby stockpiles of confiscated ammonium nitrate, was blamed on the widespread incompetence and mismanagement of Lebanon’s ruling elite, many of whom are former warlords from the 1975-1990 civil war.
The blast was the largest non-nuclear explosion in history, injuring some 7,000 people and destroying countless buildings which will cost an estimated $15 billion to repair.
Besides Lebanese nationals, people from 15 other countries fell victim to the blast, with many states still waiting on answers from Lebanese officials on the causes of the explosion.
An investigation was launched into why nearly 2,750 tons of ammonium nitrate, a highly explosive chemical used commonly in fertilisers and often in bombs, was stored in the port in the heart of the capital city, but it has since stalled. The case began to face serious pushback when fingers started to be pointed at the country’s senior political figures.
Despite resistance from the politicians and people connected to the powerful factions in the country, Tarek Bitar, the leading judge in the inquiry, went on to charge top officials in January this year in an attempt to re-start the case.
Bitar charged Lebanon’s top prosecutor, Ghassan Oueidat; the head of general security, Abbas Ibrahim; and state security agency chief Tony Saliba, opening a new front of the already troubled case, but later Bitar was dismissed from his position and issued with a travel ban. The 17 people arrested in the original probe were also released.
Lebanon is ruled by a power-sharing division, which gives the premiership to a Sunni Muslim, with the presidency reserved for a Christian and a Shia Muslim chairing parliament. The mechanism, which secures representation based on religious and sectarian constraints, has led to corruption, nepotism, and the gradual slide of the economy into ruins.
Decades of poor governance has left people with little faith in the institutions of the country, meaning they are now calling for an international organisation to find the full story of what happened.
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A gray wolf. (photo: National Geographic)
It was a common type, one of many Wilson and colleagues had snagged on summer nights in the southern Michigan countryside. They were looking for increasingly scarce Indiana and northern long-eared bats, which historically migrated there for birthing season, sheltering behind peeling bark of dead trees.
The scientists had yet to spot either species this year as they embarked on a netting mission.
“It’s a bad suggestion if we do not catch one. It doesn’t look good,” said Allen Kurta, an Eastern Michigan University professor who has studied bats for more than 40 years.
The two bat varieties are designated as imperiled under the Endangered Species Act, the bedrock U.S. law intended to keep animal and plant types from dying out. Enacted in 1973 amid fear for iconic creatures such as the bald eagle, grizzly bear and gray wolf, it extends legal protection to 1,683 domestic species.
More than 99% of those listed as “endangered” — on the verge of extinction — or the less severe “threatened” have survived.
“The Endangered Species Act has been very successful,” Interior Secretary Deb Haaland said in an Associated Press interview. “And I believe very strongly that we’re in a better place for it.”
Fifty years after the law took effect, environmental advocates and scientists say it’s as essential as ever. Habitat loss, pollution, climate change and disease are putting an estimated 1 million species worldwide at risk.
Yet the law has become so controversial that Congress hasn’t updated it since 1992 — and some worry it won’t last another half-century.
Conservative administrations and lawmakers have stepped up efforts to weaken it, backed by landowner and industry groups that contend the act s tifles property rights and economic growth. Members of Congress try increasingly to overrule government experts on protecting individual species.
The act is “well-intentioned but entirely outdated ... twisted and morphed by radical litigants into a political firefight rather than an important piece of conservation law,” said Bruce Westerman, an Arkansas Republican and chairman of the House Committee on Natural Resources, who in July announced a group of GOP lawmakers would propose changes.
Environmentalists accuse regulators of slow-walking new listings to appease critics and say Congress provides too little funding to fulfill the act’s mission.
“Its biggest challenge is it’s starving,” said Jamie Rappaport Clark, president of the advocacy group Defenders of Wildlife.
Some experts say the law’s survival depends on rebuilding bipartisan support, no easy task in polarized times.
“The Endangered Species Act is our best tool to address biodiversity loss in the United States,” Senate Environment and Public Works chairman Tom Carper said during a May floor debate over whether the northern long-eared bat should keep its protection status granted in 2022.
“And we know that biodiversity is worth preserving for many reasons, whether it be to protect human health or because of a moral imperative to be good stewards of our one and only planet.”
Despite the Delaware Democrat’s plea, the Senate voted to nullify the bat’s endangered designation after opponents said disease, not economic development, was primarily responsible for the population decline.
That’s an ominous sign, said Kurta the Michigan scientist, donning waders to slosh across the mucky river bottom for the bat netting project in mid-June.
“Its population has dropped 90% in a very short period of time,” he said. “If that doesn’t make you go on the endangered species list, what’s going to?”
TURBULENT HISTORY
It’s “nothing short of astounding” how attitudes toward the law have changed, largely because few realized at first how far it would reach, said Holly Doremus, a University of California, Berkeley law professor.
Attention 50 years ago was riveted on iconic animals like the American alligator, Florida panther and California condor. Some had been pushed to the brink by habitat destruction or pollutants such as the pesticide DDT. People over-harvested other species or targeted them as nuisances.
The 1973 measure made it illegal to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect” listed animals and plants or ruin their habitats.
It ordered federal agencies not to authorize or fund actions likely to jeopardize their existence, although amendments later allowed permits for limited “take” — incidental killing — resulting from otherwise legal projects.
The act cleared Congress with what in hindsight appears stunning ease: unanimous Senate approval and a 390-12 House vote. President Richard Nixon, a Republican, signed it into law.
“It was not created by a bunch of hippies,” said Rebecca Hardin, a University of Michigan environmental anthropologist. “We had a sense as a country that we had done damage and we needed to heal.”
But backlash emerged as the statute spurred regulation of oil and gas development, logging, ranching and other industries. The endangered list grew to include little-known creatures — from the frosted flatwoods salamander to the tooth cave spider — and nearly 1,000 plants.
“It’s easy to get everybody to sign on with protecting whales and grizzly bears,” Doremus said. “But people didn’t anticipate that things they wouldn’t notice, or wouldn’t think beautiful, would need protection in ways that would block some economic activity.”
An early battle involved the snail darter, a tiny Southeastern fish that delayed construction of a Tennessee dam on a river then considered its only remaining home.
The northern spotted owl’s listing as threatened in 1990 sparked years of feuding between conservationists and the timber industry over management of Pacific Northwest forestland.
Rappaport Clark, who headed the U.S. Fish and Wildlife Service under President Bill Clinton, said there were still enough GOP moderates to help Democrats fend off sweeping changes sought by hardline congressional Republicans.
“Fast-forward to today, and support has declined pretty dramatically,” she said. “The atmosphere is incredibly partisan. A slim Democratic majority in the Senate is the difference between keeping the law on life support and blowing it up.”
The Trump administration ended blanket protection for animals newly deemed threatened. It let federal authorities consider economic costs of protecting species and disregard habitat impacts from climate change.
A federal judge blocked some of Trump’s moves. The Biden administration repealed or announced plans to rewrite others.
But with a couple of Democratic defections, the Senate voted narrowly this spring to undo protections for a rare grouse known as the lesser prairie chicken as well as the northern long-eared bat. The House did likewise in July.
President Joe Biden threatened vetoes. But to wildlife advocates, the votes illustrate the act’s vulnerability — if not to repeal, then to sapping its strength through legislative, agency or court actions.
One pending bill would prohibit additional listings expected to cause “significant” economic harm. Another would remove most gray wolves and grizzly bears — subjects of decades-old legal and political struggles — from the protected list and bar courts from returning them.
“Science is supposed to be the fundamental principle of managing endangered species,” said Mike Leahy, a senior director of the National Wildlife Federation. “It’s getting increasingly overruled by politics. This is every wildlife conservationist’s worst nightmare.”
ELUSIVE MIDDLE GROUND
Federal regulators are caught in a crossfire over how many species the act should protect and for how long — and how to balance that with interests of property owners and industry.
Since the law took effect, 64 of roughly 1,780 listed U.S. species have rebounded enough to be removed, while 64 have improved from endangered to threatened. Eleven have been declared extinct, a label proposed for 23 others, including the ivory-billed woodpecker.
That’s a poor showing, said Jonathan Wood, vice president of law and policy with the Property and Environment Research Center, which represents landowners.
The act was supposed to function like a hospital emergency room, providing lifesaving but short-term treatment, Wood said. Instead, it resembles perpetual hospice care for too many species.
But species typically need at least a half-century to recover and most haven’t been listed that long, said Noah Greenwald, endangered species director with the Center for Biological Diversity, an environmental group.
And they often languish a decade or more awaiting listing decisions, worsening their condition and prolonging their recovery, he said. The Fish and Wildlife Service has more than 300 under consideration.
The service “is not getting the job done,” Greenwald said. “Part is lack of funding but it’s mixed with timidity, fear of the backlash.”
Agency officials acknowledge struggling to keep up with listing proposals and strategies for restoring species. The work is complex; budgets are tight. Petitions and lawsuits abound. Congress provides millions to rescue popular animals such as Pacific salmon and steelhead trout while many species get a few thousand dollars annually.
To address the problem and mollify federal government critics, supporters of the act propose steering more conservation money to state and tribal programs. A bill to provide $1.4 billion annually cleared the House with bipartisan backing in 2022 but fell short in the Senate. Sponsors are trying again.
The Fish and Wildlife Service is using funds from Biden’s Inflation Reduction Act to improve strategies for getting species off the list sooner, Director Martha Williams told a House subcommittee in July.
It’s also seeking accommodation on another thorny issue: providing enough space where imperiled species can feed, shelter and reproduce.
The act empowers the government to identify “critical habitat” where economic development can be limited. Many early supporters believed public lands and waters — state and national parks and wildlife refuges — would meet the need, said Doremus, the California-Berkeley professor.
But now about two-thirds of listed species occupy private property. And many require permanent care. For example, removing the Kirtland’s warbler from the endangered list in 2019 was contingent on continued harvesting and replanting of Michigan jack pines where the tiny songbird nests.
Meeting the rising demand will require more deals with property owners instead of critical habitat designations, which lower property values and breed resentment, said Wood of the landowners group. Incentives could include paying owners or easing restrictions on timber cutting and other development as troubled species improve.
“You can’t police your way” to cooperation, he said.
The Fish and Wildlife Service proposed regulatory changes this year to encourage voluntary efforts, hoping they’ll keep more species healthy enough to reduce listings. But environmentalists insist voluntary action is no substitute for legally enforceable protections.
“Did the makers of DDT voluntarily stop making it? No,” said Greenwald, arguing few landowners or businesses will sacrifice profits to help the environment. “We have to have strong laws and regulations if we want to address the climate and extinction crises and leave a livable planet for future generations.”
GRIM PROSPECTS
Stars and fireflies provided the only natural light on the June night after Michigan biologists Kurta and Wilson extended fine nylon mesh over smoothly flowing River Raisin, 90 minutes west of Detroit. Frogs croaked; crickets chirped. Mayflies — tasty morsels for bats — swarmed in the humid air.
Long feared by people, bats increasingly are valued for gobbling crop-destroying insects and pollinating fruit, giving U.S. agriculture a yearly $3 billion boost.
“The next time you have some tequila, thank the bat that pollinated the agave plant from which that tequila was made,” Kurta said, tinkering with an electronic device that detects bats as they swoop overhead.
Hour after hour crept by. Eight bats fluttered into the nets. The scientists took measurements, then freed them. None were the endangered species they sought.
A month later, Kurta reported that 16 nights of netting at eight sites had yielded 177 bats — but just one Indiana and no northern long-eared specimens.
“Disappointing,” he said, “but expected.”
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