This story is part of Record High, a Grist series examining extreme heat and its impact on how — and where — we live.
President Joe Biden was unequivocal when asked, during an interview with the Weather Channel last week, if he was “prepared to declare a national emergency with respect to climate change.”
“I’ve already done that,” he answered without hesitation.
But the president has not, in fact, declared a national emergency for climate change, despite claiming that he’s “practically” done so. Activists, several Democratic lawmakers, and climate scientists have in recent weeks renewed calls for Biden to take that very step, an act that would unlock sweeping executive authorities to halt fossil fuel production and ramp up manufacturing of clean energy technologies.
Though such calls have been made since the day Biden took office, the hottest June and July in history has prompted frustration bordering on outrage with his administration’s response to deadly heat and the climate change driving it. Environmental advocates say that although the president acknowledges the climate crisis in his rhetoric, his administration continues to expand fossil fuel production.
“As long as we are producing and exporting these fossil fuels, the planet will continue to cook,” Jean Su, a senior attorney and energy justice director at the Center for Biological Diversity, told Grist.
Su and other environmental lawyers say declaring a climate emergency would be fairly straightforward. Under the National Emergencies Act, Biden could issue a declaration that would activate provisions in existing laws to take drastic measures to address climate change. The president could, for example, halt crude oil exports by reinstating a ban that Congress lifted in 2015. He also could suspend offshore oil and gas drilling in over 11 million acres of federal waters, owing to a clause in those leases that allows the president to suspend operation during a national emergency.
For example, once a climate emergency is declared, Biden could divert billions of dollars from the military toward constructing renewable energy projects. Under the Defense Production Act, a law invoked by the Trump administration to boost the supply of Covid-19 medical supplies, Biden could order businesses to manufacture more clean energy and transportation technologies. He also could extend loan guarantees to industries crucial to decarbonizing the electrical grid and transportation sector, further boosting the supply of renewable power.
Biden would, of course, face considerable blowback. Dan Farber, an environmental law professor at UC Berkeley, told Grist that a climate emergency declaration could prompt legal challenges that might land before a conservative Supreme Court. He noted that in the last few years, the court has struck down broad measures taken by the Biden administration to respond to the Covid-19 pandemic, including a vaccination mandate for large employers and a moratorium on evictions.
“I think that makes it iffy whether the Supreme Court really would allow sweeping use of any of these emergency powers in a climate emergency,” Farber said.
Su noted that while litigation always is a potential response to any policy, the powers invoked by an emergency declaration would be easily defended in court. “We’re not looking at somersaults and breathing creative definitions into words. These are really straightforward statutory language questions,” Su said.
The Supreme Court has never overturned a presidential emergency declaration, but there are hurdles beyond that arena, including backlash from Congress, which might threaten the chances of passing future climate legislation. Voters might balk as well, making any declaration a potentially risky move as Biden seeks re-election next year.
But the biggest obstacle to a climate emergency declaration may be the Biden administration itself. Declaring an emergency — and invoking all its potential authorities — sits in direct opposition to its stance on fossil fuels, which so far has fostered the industry’s growth. It has in just the past year approved new oil drilling in Alaska, supported a booming liquified natural gas export industry along the Gulf Coast, and fast-tracked completion of the Mountain Valley methane pipeline in West Virginia.
“This administration claims to be climate champions, and yet they have constantly approved things like the Mountain Valley Pipeline,” said Roishetta Sibley Ozane, founder and director of the Vessel Project, a mutual aid and environmental justice organization in Louisiana. “If you’re going to be a climate champion, you can no longer be approving new fossil fuel infrastructure.”
Given these challenges, Biden might have an easier time — and provide more immediate relief for communities — by declaring an emergency for heat rather than climate change. He could do so under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988. The law authorizes the federal government to provide financial and other forms of assistance to states, tribes, territories, and cities when the president declares a natural disaster or emergency.
While the Stafford Act doesn’t explicitly name heat as a disaster covered under the law, Farber and Su say there’s nothing in the statute that prevents extreme heat from qualifying. Much like declaring a disaster for, say, a hurricane, doing so for heat could enable the Federal Emergency Management Agency, or FEMA, to provide relief funding for supplies like power generators and emergency responses like medical care or repairing heat-stressed power grids.
But the challenges with declaring heat as a disaster might be more administrative than legal. To receive assistance, cities, tribes, and states need to prove that an emergency exceeds their current funding and resource capacity. It can be difficult to tally up the costs of extreme heat, which is less likely to destroy property and more likely to take a toll on public health and productivity. As heat continues to strain electrical systems and send people to hospitals, however, those costs are only becoming more tangible.
Environmental activists say it’s a reminder that the crisis of extreme heat will only get worse until President Biden takes decisive action.
“We absolutely need emergency funding to deal with people dying on the streets right now,” Su said. “But we also need to deal with the root of the crisis, which is fossil fuels.”
The Biden administration announced its biggest effort yet last week to scrub carbon dioxide out of the air, with more than $1 billion going to two facilities on the Gulf Coast that will use “direct air” carbon capture technology.
Direct air capture, or DAC, is a process which separates carbon from oxygen, and reduces CO2 in the atmosphere. The trapped CO2 can then be safely stored underground, deep in the ocean or converted into useful carbon products like concrete, which would prevent its release back into the air.
Project Cypress will be built in Calcasieu Parish, Louisiana and the South Texas DAC is planned for Kleberg County, Texas. Both sites are designed to capture up to 1 million metric tons of carbon dioxide per year initially. Officials said the projects will create over 4,500 jobs for local workers and people formerly employed in the fossil fuel industry.
The process of direct air capture is a great way to mitigate the global warming crisis, said Daniel Sigman, Dusenbury Professor of Geological and Geophysical Sciences at Princeton University.
“This carbon capture and sequestration involves stripping CO2 out of the air and putting it somewhere,” Sigman said. “Carbon capture is something that people become interested in when it’s too late to prevent carbon dioxide emissions. “
However, some scientists think the initiative is a waste of money because DAC requires a significant amount of energy to purify CO2 and store it, making it one of the most expensive and inefficient ways to sequester carbon.
The initiative is being funded through the Bipartisan Infrastructure Law of 2021 and is part of a Department of Energy initiative which aims to build a nationwide network of large-scale carbon removal sites to mitigate the climate crisis.
“Cutting back on our carbon emissions alone won’t reverse the growing impacts of climate change; we also need to remove the CO2 that we’ve already put in the atmosphere—which nearly every climate model makes clear is essential to achieving a net-zero global economy by 2050,” said U.S. Secretary of Energy Jennifer M. Granholm in a statement.
The funding for the project was noted as the world’s largest-ever investment in engineered carbon removal, with each new hub expected to clear more than 250 times more carbon dioxide from the air than the largest direct air capturing facility currently operating.
Sigman said getting the technology right for something of this magnitude is tricky. With carbon dioxide making up around 420 parts per million of molecules it’s a challenge to come up with chemical means to strip those molecules out of the air, he said.
“Carbon dioxide is throughout our whole atmosphere,” said Sigman. “So we have to think about how much our atmosphere is going to be passing through Texas and Louisiana, we have to think about how much of our atmosphere will be passing through these areas.”
This story was originally published byProPublica, a nonprofit newsroom that investigates abuses of power.
The Environmental Protection Agency approved a component of boat fuel made from discarded plastic that the agency’s own risk formula determined was so hazardous, everyone exposed to the substance continually over a lifetime would be expected to develop cancer. Current and former EPA scientists said that threat level is unheard of. It is a million times higher than what the agency usually considers acceptable for new chemicals and six times worse than the risk of lung cancer from a lifetime of smoking.
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.”
On a rugged stretch of the Gulf Coast in Texas, environmental groups called foul in 2020 when an oil company sought pollution permits to expand its export terminal beside Lavaca Bay.
Led by a coalition of local shrimpers and oystermen, the groups produced an analysis alleging that the company, Max Midstream, underrepresented expected emissions in order to avoid a more rigorous permitting process and stricter pollution control requirements.
In its response, Max Midstream did not respond to those allegations. Instead, it cited what it characterized as the “quintessential one-mile test” by Texas’ environmental regulator, the Texas Commission on Environmental Quality, to claim that the groups and citizens involved had no right to bring forth a challenge because they lived more than one mile from the Seahawk Oil Terminal.
“The well-established Commission precedent has been repeated again and again,” the lawyers wrote. “Based on the quintessential one-mile test relied upon by the Commission for decades, none of the Hearing Requests can be granted.”
But the agency says the one-mile test cited by the company’s lawyers doesn’t exist.
“The Commission has never adopted a one-mile policy,” said TCEQ spokesperson Laura Lopez. “Instead, the Commission applies all factors set out in statute and rules.”
A Citgo refinery fumes behind a home in Hillcrest, Corpus Christi.
Dylan Baddour/Inside Climate News
Indeed, the test is not codified in Texas law or TCEQ rules. Yet it appears consistently in TCEQ opinions going back at least 13 years as a means to restrict public challenges to air pollution permits. It has beencited repeatedly by industry lawyers anddenounced by environmental advocates.
“This practice is arbitrary and unlawful,” said Erin Gaines, an Austin-based senior attorney with the nonprofit Earthjustice. “TCEQ’s practices prevent people from having a meaningful voice in the permitting process for polluting facilities in their community.”
U.S. law requires that states provide citizens with the opportunity to challenge pollution permits in federal court. The rules regarding who may bring forth challenges are laid out in Article III of the U.S. Constitution, which doesn’t say anything about a distance limit.
Dozens of Texas environmental groups have argued in petitions, now before the U.S. Environmental Protection Agency, that TCEQ unlawfully restricts access to judicial review, including through the one-mile rule, and litigants in the Max Midstream case have now challenged the use of the one-mile rule in federal court and are awaiting a hearing set for this fall.
The TCEQ, which is responsible for implementing federal pollution laws in Texas, issued its blanket denial that the rule exists despite a list of more than 15 cases compiled by Inside Climate News that centered on the one-mile standard. In some, it was explicitly cited by TCEQ itself, or by industry lawyers. In others, the one-mile standard is depicted on maps produced by the TCEQ. In each case, the distance standard is the main or the only justification offered for granting or denying citizens’ hearing requests.
Last year the nonprofit Earthjustice reviewed 460 requests for air permit hearings between 2016 and 2021. It found that while requests from citizens living within one mile of a facility comprised 12 percent of the requests, they comprised 83 percent of the requests the agency granted; almost all of the remaining 17 percent of granted requests came from people who lived only slightly farther than one mile away.
“TCEQ’s actions speak for themselves,” Gaines said. “TCEQ routinely denies hearing requests from members of the public unless they own property within one mile of a facility.”
The Texas Commission on Environmental Quality central headquarters in Austin, pictured on July 26, 2023
Dylan Baddour/Inside Climate News
The one-mile standard
Texans who wish to challenge TCEQ permit decisions must file a request with the agency. Its executive director reviews those requests and recommends whether or not the agency’s three commissioners, all appointed by the Republican governor of Texas, should grant them.
To do that, the executive director assesses whether the challengers qualify as “affected persons” with legal standing to bring forth complaints. Texas’ administrative code considers an “affected person” anyone who will be “affected by the application” in a way that is not “common to members of the general public.”
When formulating recommendations, the TCEQ’s Lopez said, the executive director “considers many factors, only one of which relates to the location of the facility.”
However, a review of the agency’s recommendations shows that the distance standard is regularly the only factor used to recommend rejection of hearing requests.
It appears in writing as far back as 2010, when 36 people challenged a permit renewal for a gas processing plant in northeast Texas, mostly complaining about odorous hydrogen sulfide gas coming from the facility’s flares.
“The Executive Director has generally determined that hearing requestors who reside greater than one mile from the facility are not likely to be impacted differently than any other member of the general public,” wrote the executive director at the time, Mark Vickery, who is now a lobbyist for the Texas Association of Manufacturers. “For this permit application, the Executive Director’s staff has determined that no requestors are located within one mile of the proposed facility.”
(The permit renewal in question was not eligible for a hearing anyway, Vikery wrote, because it posed no changes from its original form.)
His recommendation: none of the requestors should be recognized as affected persons. The TCEQ commissioners agreed.
“All requests for a contested case hearing are hereby DENIED,” wrote then-TCEQ Chair Bryan Shaw, who is now a lobbyist for the Texas Oil and Gas Association.
“Rule of thumb“
By 2014, the rule was well known among lawyers for industrial developers. That year, 16 members of the Danevang Lutheran Church in rural Wharton County requested a hearing over plans to build a gas-fired power plant in their tiny town.
In written arguments to the TCEQ, lawyers for the plant developer, Indeck Wharton, wrote, “A key factor the Commission frequently uses as guidance on the distance issue is the one-mile ‘rule of thumb.’”
“While it is not an immutable rule, the Commission frequently uses it as a guide,” the lawyers wrote. “It is not found in any statute, regulation or guidance document. Instead, it is founded in common sense and experience.”
TCEQ’s executive director at the time, Zak Covar, then invoked the one-mile limit.
“Although the church is within one mile of the proposed facility, the request does not claim that any person resides at the church,” Covar wrote before the commissioners denied the church members’ request for a hearing and issued the permit as proposed.
In 2017, the TCEQ received 16 hearing requests — including from local residents, a Texas A&M University chemist and the Bryan Independent School District — over plans by Saint-Gobain Ceramics and Plastic Inc., to build a facility in Bryan.
A 2017 map produced by the TCEQ executive director showing distances of hearing requestors relative to a proposed industrial facility in Bryan, Texas.
Via Inside Climate News
“Because distance from the facility is key to the issue of whether there is a likely impact … the ED has identified an area of approximately one mile from the plant on the provided map,” wrote the executive director at the time, Richard Hyde.
Only Jane Long Intermediate School sat within the one-mile radius. So TCEQ denied 15 hearing requests and granted the school district’s. Later, the school district withdrew its hearing request, citing a settlement agreement with Saint-Gobain, and TCEQ approved the permit application.
Two years later, when Annova LNG applied for permits to build a gas compressor and terminal on the Rio Grande delta, the nearby city of South Padre Island requested a hearing.
“The City stated that it is located more than one mile from the proposed terminal,” wrote the executive director at the time, Toby Baker. “Given the distance of the City from the proposed terminal, the ED recommends that the Commission find that the City is not an affected person.”
The commission agreed. Hearings were denied and a permit was issued.
Also in 2019, 36 residents requested hearings over permits for a concrete plant in Midlothian. The nearest of them, Sarah Ingram, lived 1.2 miles away and expressed concern about the health of her children when protesting the pollution permit.
“As none of the requestors reside within one mile of the plant’s emission point, they are not expected to experience any impacts different than those experienced by the general public,” Baker wrote.
In 2020, the nonprofit Lone Star Legal Aid filed a hearing request on behalf of Port Arthur resident John Beard over a developer’s plans to build an LNG export terminal.
According to the request, Beard regularly spends time on Pleasure Island, an 18-mile long recreational area in Port Arthur that runs as close as 900 feet from the proposed terminal site, in his capacity as the chair of the Pleasure Island Advisory Board.
John Beard pictured in Port Arthur on on July 2, 2018.
Pu Ying Huang/Texas Tribune
In evaluating the request, the TCEQ only considered Beard’s home address, four miles away.
Lone Star Legal Aid filed an 11-page response, claiming “sites like Port Arthur LNG require the commission to consider a larger impact area than merely a mile,” and that “there are no distance restrictions imposed by law on who may be considered an affected person.”
TCEQ referred the question to the State Office of Administrative Hearings, where an administrative law judge agreed with Lone Star Legal Aid, writing, “the Applicant’s own data indicated that operation of the Proposed Facility will result in increased levels of [nitrogen oxides] and [fine particulate matter] at Mr. Beard’s residence.”
The administrative judge declared Beard an “affected person” and ordered a hearing over the pollution permit, which was held in February 2022. A second administrative judge also agreed with some of Lone Star Legal Aid’s complaints and recommended that the TCEQ require Port Arthur LNG to use better pollution control technology that would lower emissions of nitrogen oxides and carbon monoxide from the facility’s eight gas compressor turbines.
Meanwhile, TCEQ has granted hearing requests for requestors who live within a mile. In 2015, a group called Citizens Alliance for Fairness and Progress in Corpus Christi requested a hearing over air pollution permits for a planned modification at a Citgo Refinery, and identified group members living a few blocks from the refinery.
Five years later, the executive director recommended granting the request “because the Alliance identifies as members residents (sic) that reside within one mile of the proposed facility.” Citgo withdrew its application before a hearing was held.
Legal complaints
The country’s landmark environmental laws, the Clean Air and Clean Water acts, require states to provide opportunities for citizens to challenge pollution permits in court, a process known as judicial review, so a judge may evaluate if permits are consistent with federal standards.
Texas law provides such opportunities in its health and safety code, which says: “A person affected by a ruling, order, decision, or other act of the [TCEQ]… may appeal the action by filing a petition in a district court.”
But multiple petitions to the EPA have alleged that Texas courts will only take up pollution permit complaints if the plaintiff has already been through a “contested case hearing” in administrative courts run by the state. Thus, by denying complainants’ requests for contested case hearings, often citing the one-mile standard, the TCEQ controls their access to the courts.
“Participation in the contested case hearing process is a prerequisite to seeking judicial review of a TCEQ permitting decision,” reads one 38-page petition filed with the EPA in 2021 by 22 Texas environmental groups, focused on TCEQ’s water pollution management. “This empowers the TCEQ full discretion to deny any person the right of judicial review.”
Where federal law is concerned, requirements for access to judicial review are laid out in Article III of the U.S. Constitution. When states are charged with enforcing federal law, they may not impose limits beyond what the Constitution says, according to Gaines, the environmental attorney with Earthjustice in Texas.
In another 61-page petition filed last year with the EPA over TCEQ’s air pollution management, 11 Texas environmental groups said the contested case hearing process is absent from the sweeping pollution management plans that Texas, like all states, must submit to the EPA for approval.
That process, the petition says, includes “an arbitrary presumption that only those who own property or live within one mile of a proposed new or modified source are affected persons entitled to participate in a contested case hearing.”
“While not codified anywhere, this ‘rule of thumb’ is used regardless (of) how large the source is, the character of the emissions, the size of a facility’s stacks, or local meteorological conditions,” the petition said.
Max Midstream’s Seahawk oil terminal at the Port of Calhoun County seen on June 7, 2023.
Dylan Baddour/Inside Climate News
For that petition, an EarthJustice analysis showed that TCEQ granted only 12 percent of hearing requests between 2016 and 2021 — virtually all of them from people who lived within a mile or just slightly further from the applicant’s location.
Early this year, the U.S. Environmental Protection Agency responded to the 2021 petition and said it was “informally investigating the allegations.”
“If proven to be true, the allegations outlined in the Petition are concerning,” Charles Maguire, the EPA deputy regional administrator, wrote in January.
The EPA can revoke a state’s authority to implement federal environmental law if the state regulator does not meet program requirements, Maguire wrote, including “failure to comply with the public participation requirements.”
A spokesperson for EPA Region 6, Jennah Durant, told Inside Climate News, “Because both petitions are still under review, EPA cannot provide further details at this time.”
Durant declined requests for interviews with Region 6 administrator Earthea Nance and did not respond to questions about why only informal investigations were launched.
“If states start to deviate too much from national expectations about good implementation enforcement, which includes access to judicial review, the EPA can disapprove of the state’s plan,” said Cary Coglianese, director of the Penn Program on Regulation at the University of Pennsylvania. “It’s not a threat that’s used often and it can’t be used lightly.”
Diane Wilson stands in Port Lavaca, across Lavaca Bay from the Formosa Plastics Corp. Plant, pictured on July 23, 2023.
Christopher Baddour/Inside Climate News
The case of Max Midstream
Diane Wilson filed her first hearing request with the TCEQ in 1989. Since then she’s filed over a hundred more, she guesses. Only twice has she been recognized as an affected person, in 1998 and 2015.
“You ask any activist out there, any grassroots person, and they will tell you the same thing about TCEQ,” she said. “They’re in a big love affair with industry.”
Wilson, who leads an organization called San Antonio Bay Estuarine Waterkeeper, filed a challenge with the TCEQ when Max Midstream sought its permit to discharge airborne toxins including “hazardous air pollutants” such as hydrogen sulfide, carbon monoxide, nitrogen oxides, sulfur dioxide, volatile organic compounds and fine particulate matter, all known by the EPA to cause cancer and other serious health impacts.
Her organization, together with the Environmental Integrity Project and Texas Rio Grande Legal Aid, obtained data from Max Midstream’s permit application for the Seahawk Oil Terminal, analyzed it and concluded that the company underrepresented expected emissions in order to avoid a more rigorous review process for larger pollution sources.
That was when lawyers for Max Midstream cited the one-mile rule.
“Based on consistent Commission precedent,” the lawyers wrote. “Only a property owner with an interest within one mile or slightly farther could possibly qualify for a contested case hearing.”
“It’s crazy they say that,” said Wilson, 75, as she sat in a bayside park in Port Lavaca. She pointed across the water to the sprawling Formosa Plastics Corp. plant that stood prominently on the horizon, some seven miles away (farther than Max Midstream). “I have been here and watched releases from that plant come clear across the bay. It’s like a fog come in.”
She submitted to the TCEQ analysis from Ranajit Sahu, a private environmental consultant in California who previously managed air quality programs and has a Ph.D. from the California Institute of Technology. He testified that harmful health impacts from the terminal could extend up to five miles away.
She also pointed to a 2009 study, led by a researcher at Texas A&M University and published in the journal Ecotoxicology, which linked clusters of genetic damage among cows in Calhoun County to industrial emissions up to 15 kilometers (9.3 miles) away. The largest cluster identified was seven kilometers (4.3 miles) from the industrial facilities.
Nevertheless, in a 2022 opinion, Baker, the TCEQ executive director, sided with Max Midstream. Although Wilson had stated that she regularly spent time near the site of the proposed facility, her home was 16 miles away in the town of Seadrift.
Baker wrote: “Given the distance of Ms. Wilson’s residence relative to the location of the terminal, her health and safety would not be impacted in a manner different from the general public. Therefore, the ED recommends that the commission find that Diane Wilson is not an affected person.”
A map produced by the TCEQ executive director in 2022 showing locations of hearing requesters relative to Max Midstream’s Seahawk oil terminal on Lavaca Bay.
Via Inside Climate News
The director used the same reasoning to recommend rejection of hearing requests from five residents in Port Lavaca, about 4 miles across the water from the Seahawk terminal — a complex of huge storage tanks, marine loading docks and a pump station to move oil through a 100-mile pipeline.
They included Mauricio Blanco, a 51-year-old shrimper who said he spends nine hours per day on the water close to the proposed facility, even though he lives six miles away.
Also included: Curtis Miller, 61, owner of Miller’s Seafood, a national wholesaler of shrimp, fish and oysters started by his uncle in the 1960s, with its headquarters on the bayside in Port Lavaca.
In official comments, he told the TCEQ he would be harmed economically by increased air emissions because carbon dioxide from the terminal will contribute to acidification of bay waters, harming the oyster population he depends on.
Baker acknowledged Miller’s economic concerns, but concluded that “based on his location relative to the terminal, Mr. Miller’s health and safety would not be impacted in a manner different from the general public.”
Miller, a stout seaman covered in sunspots, said, “I don’t know what they base that on. I think we could be strongly affected here 4 or 5 miles away.”
From the docks at Port Lavaca, he pointed across the water at the Seahawk Terminal, the tallest feature on the horizon, looming large to the northeast.
Curtis Miller, president of Miller’s Seafood, stands beside his fleet of shrimping boats in Port Lavaca, Texas, on June 7, 2023.
Dylan Baddour/Inside Climate News
“Does that look far away to you?” he said.
Then he pointed at a U.S. flag that was flapping to the southwest, directly from the plant to where he stood.
“Look which way the wind is blowing,” he said. “That’s our prevailing summer wind.”
It issued Max Midstream a permit authorizing 61 different emissions points to release up to eight different air contaminants at a collective rate of hundreds of pounds per hour.
“Emissions from this facility must not cause or contribute to ‘air pollution’ as defined in Texas Health and Safety Code,” the permit said.
In June 2022, Wilson sued the TCEQ in federal court, alleging that it “acted arbitrarily and unreasonably in determining that Plaintiffs did not qualify as affected persons” based solely on distance.
“There are no distance restrictions imposed by law for this type of permit,” reads a legal brief Wilson filed for the case in July 2023.
She claimed TCEQ issued a pollution permit that was not compliant with state and federal law and asked the court to overturn it. A first hearing in the case is set for November.
Jakarta, Indonesia, frequently ranks as one of the most polluted cities in the world, and was recently named the most polluted city on the planet by Swiss air quality technology company IQAir.
Authorities in Indonesia are blaming the air pollution issues in the city of more than 11 million on a combination of vehicle emissions and weather patterns, specifically the current dry season.
For the past few months, residents of Jakarta have been greeted each morning by a combination of gray skies and a blanket of dense smoke, reported The Associated Press.
“In June, July and August, there is invariably an escalation in air pollution in Jakarta due to the dry air,” said senior environment and forestry official Sigit Reliantoro at a press conference, as AFP reported.
Reliantoro said the high pollution levels from June to August were caused by seasonal wind changes.
“I have to wear a mask all the time. Both my body and my face are suffering,” Anggy Violita, a 32-year-old officer worker in Jakarta, told AFP in another report. “Last week my entire family was sick for a week and the doctor told me I should stay indoors.”
Data from the country’s Ministry of Environment and Forestry said transportation produces 44 percent of the air pollution, while 31 percent comes from industry, reported The Associated Press.
Many of the vehicles in Jakarta, particularly motorcycles, are highly polluting and inefficient, and maintenance standards are rarely enforced. Public transportation in the metropolitan area of 30 million is lacking, so heavy traffic produces a constant stream of pollution.
President of Indonesia Joko Widodo, along with six other officials, was charged with neglecting the right of citizens to clean air in 2021. The court ordered that the poor air quality in Jakarta be improved, but health issues related to the city’s air pollution continue to escalate.
“It is increased compared to 2022. And it is almost the same condition we found in 2019 and 2018, before the COVID-19 pandemic,” said Dwi Oktavia, head of disease prevention and control at the Jakarta Health Agency, as Reuters reported. “[W]e should actively be using public transportation and bicycles.”
Indonesia has promised to be carbon neutral by 2050 and to stop the construction of new coal-fired power plants this year, reported AFP. However, one of the largest coal-fired power plants in Southeast Asia, Java’s Suralaya, is being expanded by the Indonesian government.
There are 10 coal-fired plants operating within 100 kilometers of Jakarta, according to Greenpeace Indonesia, and they probably don’t help the city’s pollution issue.
As one solution to Jakarta’s air quality problem, some of the city’s industrial and economic operations are scheduled to be moved to Nusantara, Borneo, which is being planned as the country’s new capital city.
When you compost your food scraps instead of sending them off to a landfill, you reduce methane emissions and create organic material in which to grow plants.
Composting also improves soil health; reduces erosion and the need for pesticides or fertilizers; and promotes carbon sequestration and climate resiliency.
Two common types of aerobic composting processes are vermicomposting, which involves worms, and hot backyard compost piles.
While many organic materials can be composted, not all should be composted in a residential setting because they will decay too slowly and potentially attract pests. Commercial settings will allow for more types of items to be composted.
Finished compost can be mixed in soil or used as mulch.
San Francisco was the first American city to create a food scrap composting program in 1996, but many more have since kicked off their own programs or are currently considering it.
If your municipality doesn’t offer composting or food scrap collection services, you can look to private haulers or community gardens.
Not all food scrap collection services are using the collected organic materials for compost. Instead, they may be using it to create other products, like biogas.
A handful of states are allowing residents to choose to have their bodies composted once they die, but some groups find the practice controversial.
What Is Composting and Why Does It Matter?
Composting is the practice of intentionally breaking down organic substances — like food scraps — and turning it into compost, essentially a nutrient-rich organic matter that is excellent for feeding plants. It also helps reduce methane emissions associated with food waste (more on that later). And according to the Natural Resources Defense Council, “compost is an essential tool for improving large-scale agricultural systems” by improving soil health, reducing erosion and conserving water.
The U.S. Environmental Protection Agency (EPA) also notes that using compost “attracts beneficial organisms to the soil and reduces the need for pesticides and fertilizers,” as well as promotes carbon sequestration and, subsequently, climate resiliency.
A gardener adds a crate full of rotten tomatoes to a backyard compost heap. coldsnowstorm / E+ / Getty Images
How Does Composting Help Mitigate Climate Change?
Climate change is occurring because of human activities that create greenhouse gases, like carbon dioxide and methane, that prevent heat from the sun from escaping from our atmosphere and entering into space (the “greenhouse effect”).
When organic waste is thrown into the trash or into a landfill, it decomposes anaerobically, or without oxygen, in a process that then creates methane. While you’ve probably heard about the climate impact of carbon dioxide emissions, methane emissions last less time in the atmosphere but have a stronger impact while there.
“Methane has more than 80 times the warming power of carbon dioxide over the first 20 years after it reaches the atmosphere,” according to the Environmental Defense Fund. “Even though [carbon dioxide] has a longer-lasting effect, methane sets the pace for warming in the near term. At least 25% of today’s global warming is driven by methane from human actions.”
But when that organic waste is instead composted, it decays aerobically (that is, in an oxygen-rich environment), and methane isn’t emitted.
What Can I Do With Finished Compost?
Finished compost can be used throughout the garden in lieu of artificial or chemical products to help feed plants. It can be mixed into soil or used as a potting mix, or otherwise spread on top of the soil in the garden bed to use as mulch, according to the Institute for Local Self-Reliance.
A gardener levels potting compost in a tray for sowing seeds. Nigel Kirby / Loop Images / Universal Images Group via Getty Images
What Are the Different Types of Composting?
There are three overall composting categories: hot methods, cold methods and vermicomposting. Within those categories are numerous different types of compost setups, but the most common types you’ll likely come across in the residential context are aerated, thermophilic compost piles (or backyard compost piles) and vermicomposting boxes. Several cold methods also create compost and they are slower, anaerobic processes.
As the name implies, backyard compost piles are simple enough to set up and maintain that you can do it at home. By incorporating an appropriate mix of carbon-rich and nitrogen-rich materials, as well as oxygen and water, you can build and maintain a compost pile that will produce finished compost in a matter of months. Temperatures within a backyard compost pile can reach between 130° to 160° Fahrenheit, according to the EPA which explains the backyard compost pile creation and maintenance process in full on its website.
Vermicomposting, meanwhile, involves using worms and microorganisms to break down organic matter to turn it into compost, according to the NC Cooperative Extension. The extension notes that only seven types of worms can work for composting, but California’s Department of Resources Recycling and Recovery recommends using one of two species: Eisenia foetida and Lumbricus rubellis. The process can be done inside or outside.
A farmer scatters fruit waste around soil at an earthworm farm in Turin, Italy on July 28, 2023. Stefano Guidi / Getty Images
Hot composting methods can produce finished compost with several weeks of maintenance, although that doesn’t account for curing time. It’s important to cure your compost, or leave it undisturbed to allow it to continue breaking down, after the first weeks of active maintenance in a backyard compost pile.
Vermicomposted organic matter, however, doesn’t require curing, according to the Institute for Local Self-Reliance, meaning you can use the finished compost right away.
Where Else Can I Compost if Not at Home?
Even if you don’t have space at home to have your own compost setup (or perhaps hosting a family of worms is unappealing to you), that doesn’t mean you can’t put your food scraps to good use.
Some community gardens may have a compost pile you can contribute to, but check with whomever is in charge of it to make sure you’re not adding too much of certain items (or the wrong things entirely). And depending on where you live, your local farmers market might offer a food scrap composting drop-off option.
Increasingly, municipalities like Arlington County, Virginia are offering their own food scrap pick-up programs to compost locally. That county began offering curbside food scrap collection in 2021, after five years of collecting only yard waste from residences. And some cities are creating pilot projects to test out such programs before committing to them long-term. Washington, DC, for example, is kicking off a curbside composting pilot this summer for 12,000 households whose waste is handled by the city’s public works department.
But such programs aren’t exactly brand-new ideas, as San Francisco became the first American city to establish a large food scrap composting program nearly 30 years ago, in 1996. (The city met several smaller waste reduction goals but failed to meet an ambitious zero-waste by 2020 goal, revising it to cutting total waste by 15% by 2030 and reducing landfill-bound waste by 50%).
A worker with waste management company Recology carries bags of compostable material to his truck in San Francisco, California. Justin Sullivan / Getty Images
If your city doesn’t offer its own food scrap collection program, research whether private food scrap haulers exist in your area. Essentially, you sign up and pay these haulers to independently collect your organic waste on a set schedule and take it to an off-site compost pile. Some may allow you to skip weeks when you haven’t collected enough scraps to make pick-up worthwhile.
Another bonus of composting away from the house? Often you can opt to receive some of the finished compost if you’re a regular subscriber or contributor, meaning you can gain the garden benefits of composting without having to do the dirty work yourself.
What Can I Compost?
Some resources say that anything that can be eaten can be composted. That may be true in general, but some things should only be composted in certain settings. Not every substance decomposes at the same rate, meaning items that are slower to break down could attract pests, according to Food Print, a GRACE Communications Foundation project that focuses on environmental concerns around the industrial food system.
The Institute for Local Self-Reliance offers a list of what should and shouldn’t be composted on their website. Yard waste, such as untreated wood chips and fall leaves, as well as cut flowers, tea bags without staples, crushed egg shells and fresh fruit and vegetable scraps can all get tossed in a backyard compost pile. But the institute doesn’t recommend trying to compost pet waste, meat, bones, dairy products, or cooked foods.
However, if you drop off your food scraps or have them picked up by a municipal compost service, that service provider can likely compost a more expansive array of items that you’re able to do at home. Arlington County, Virginia details on its food scraps collection webpage a lengthier list than most backyard composters could rely on, including meats, bones… basically anything we consume, plus things like greasy pizza boxes, soiled napkins, natural corks and even hair and fingernail clippings.”
A growing number of products claim to be compostable, but often they are only compostable in industrial or commercial settings. If you have a specific question (like whether you can compost an old slice of apple pie since it’s mostly apples, or whether take-out utensils labeled compostable actually can be), don’t overthink it. Just reach out to the agency or company running the program and ask.
Can Humans Be Composted?
The short, scientific answer to that question is yes, humans are compostable. But the question of whether you’re allowed to compost humans depends on where you live.
Currently, six states in the U.S. allow for human composting as an after-death alternative to traditional burials or cremation, according to CNBC Make It. California, Colorado, New York, Oregon, Vermont and Washington (which first set the trend in 2019) have all made it a legal option for residents. According to Legiscan, Nevada’s governor signed a law that made human composting legal in the state on May 30, 2023, making it the seventh state to do so.
A human composting legislation tracker maintained by Earth Funeral Group notes that Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Rhode Island and Virginia have all had bills filed to legalize natural organic reduction, another term for human composting. The same tracker notes that legalization legislation has been considered but failed to pass in Hawaii and Pennsylvania.
Composting humans has several environmental benefits over more common types of end-of-life corpse care. Cremation creates roughly 400 kg of carbon dioxide per body, according to an article published by The Guardian. The newspaper further explains how traditional burials aren’t much better, with “embalming fluid seeping into the soil as the body and coffin decompose, as well as other toxins such as radiotherapy or chemotherapy drugs,” in addition to limited burial space.
Nonetheless, reporting by Illinois television station WTVO notes that some religious groups and traditional burial groups are actively against the practice, citing concerns for the dignity of the deceased.
Are Food Scrap Collection Programs Always Making Compost?
Not necessarily. Depending on where you live, your scraps might be sent off to an anaerobic digester to be processed. As noted before, an anaerobic processing of food scraps creates methane, but operators of anaerobic digesters tout that the machines contain those emissions and turn them into biogas or digestate, according to the EPA. That biogas can be used for manufacturing feedstocks, electricity, heating, vehicle fuel or renewable natural gas (which is basically processed biogas). Depending on whether it’s in liquid or solid form, digestates can be turned into “animal bedding, nutrient-rich fertilizer, a foundation material for bio-based products (e.g., bioplastics), organic-rich compost, and/or simply as soil amendment, the latter of which may include the farm spreading the digestate on the field as fertilizer.”
Food scraps aren’t the only thing that can be processed in an anaerobic digester. The agency also lists animal manure, wastewater biosolids, crop residues, fats, oils and brewery or winery waste as products that can go in such a system.
A farm-based maize silage anaerobic digester plant for producing biofuel in Germany. Arterra / Universal Images Group via Getty Images
National Oceanic and Atmospheric Administration (NOAA) scientists at the Climate Prediction Center have updated their forecast for this year’s Atlantic basin hurricane season to an above-normal activity level, up from the near-normal activity level predicted earlier this year.
Forecasters are saying that the likelihood of the 2023 Atlantic hurricane season — which lasts from June 1 to November 30 —being above-normal is now 60 percent, double what they had predicted in May, a press release from NOAA said. Near-normal hurricane activity is now just 25 percent likely, down from 40 percent in May. The new outlook gives a below-normal Atlantic hurricane season a 15 percent chance.
Forecasters believe it is likely that the current atmospheric and ocean conditions, like the record sea surface temperatures in the Atlantic, will offset the usual effects of El Niño that tend to temper atmospheric conditions.
El Niño causes the central Pacific Ocean to naturally warm, which affects global weather, reported The Associated Press. Its sinking air and crosswinds normally reduce storm activity. The current El Niño event is affecting the Pacific, but so far hasn’t brought changes to the Atlantic or Gulf of Mexico.
“The impacts of El Niño have been slower to emerge over the Atlantic,” said Matthew Rosencrans, lead hurricane season outlook forecaster at NOAA’s Climate Prediction Center, as The Associated Press reported.
The 2023 NOAA forecast predicts 14 to 21 named storms — a named storm is one with winds of 39 miles per hour or higher, the press release said. Of the named storms, NOAA said six to 11 could become hurricanes. A hurricane is classed as a storm with winds that are 74 miles per hour or more. Of the possible hurricanes, two to five could turn into major hurricanes with winds of 111 miles per hour or higher. The level of confidence with which NOAA makes these predictions is 70 percent. The updates include storms that have already occurred this hurricane season.
“During active years, there’s a doubling in the chance of a hurricane hitting the East Coast of the U.S. compared to an average or below-average season,” said Rosencrans, as reported by NPR.
This year’s Atlantic basin hurricane season has already chalked up five tropical storms and one hurricane, the press release said. On average, a hurricane season has 14 named storms, with seven of those reaching hurricane strength, including three major hurricanes.
“The main climate factors expected to influence the 2023 Atlantic hurricane activity are the ongoing El Niño and the warm phase of the Atlantic Multi-Decadal Oscillation, including record-warm Atlantic sea surface temperatures,” Rosencrans said in the press release. “Considering those factors, the updated outlook calls for more activity, so we urge everyone to prepare now for the continuing season.”
The most recent Climate Prediction Center ENSO discussion said there is more than a 95 percent likelihood that El Niño will continue through winter in the Northern Hemisphere. Forecasters said that the El Niño atmospheric conditions that tend to tamp down tropical activity during the Atlantic hurricane season have not only been slow to develop, but they also may not be around for much of the rest of this year’s season.
The updated Climate Prediction Center forecast also factored in Atlantic trade winds that are a little below-normal, a wind shear forecast that is below-normal and a West African Monsoon that is near- or above-normal.
The hurricane outlook covers all storm activity during a season, not just those that make landfall. Storms that do make landfall are usually predictable within about one week of their approach to land.
“The National Weather Service is dedicated to providing timely and accurate forecasts to empower individuals, families and communities to take proactive measures this hurricane season,” said Ken Graham, director of NOAA’s National Weather Service, in the press release. “New tools such as a new hurricane model, the Hurricane Analysis and Forecast System and the expansion of the National Hurricane Center’s Tropical Weather Outlook to seven days are examples of our commitment to enhancing our forecasting capabilities and services.”
NOAA says everyone who lives in areas that are vulnerable to hurricane activity should have a hurricane plan in place and use official channels to stay informed as the 2023 hurricane season progresses.
Forgot about that container of yogurt in the back of the fridge? A bag of granola lost in the pantry? A glance at the expiration date might tell you that it’s time to toss it, but in fact, “expired” food might still be perfectly safe and enjoyable to eat.
Heeding expiration dates often causes us to throw away food that’s still completely edible, contributing to our massive food waste problem in the U.S. With grocery prices soaring — rising nearly 8% between April 2022 and April 2023 — these wasted products are just money down the drain. Stamps of “sell by,” “enjoy by,” “best by,” “best if used by,” “use by,” and “best before” don’t all necessarily mean the same thing, and don’t communicate anything about the actual safety of the food after the printed date. In the absence of a national standard for food dating, these phrases have long confused and misguided our sense of when a product is edible.
How Did Expiration Dates Come to Be?
Sell-by dates on food products were first introduced by the store Marks & Spencer’s in the 1950s, but they didn’t really gain much public attention until the 1970s. By then, most Americans were shopping at grocery stores for the majority of their food — rather than growing it themselves or purchasing it directly from farms — as well as consuming more processed and packaged products, ultimately leading to greater concern about the freshness of ingredients.
At that time, sell-by information was printed on products as a code that retailers could then decipher using a key, but it wasn’t made readily available to consumers. When customers began demanding more transparency about their purchases (some activists even began decoding the labels and passing out booklets explaining how to read the codes), manufacturers responded by dating their products more clearly with sell-by dates. While the vast majority of surveyed shoppers reported their approval of such dating, the then-Congressional Office of Technology Assessment stated that there was “little or no benefit derived from open dating in terms of improved microbiological safety.” Yet, a very similar system of dating food products is still widespread in the United States today.
A “consume before” expiration date on a can of tuna. Nancybelle Gonzaga Villarroya / Moment / Getty Images
What Does an Expiration Date Actually Mean?
There is no universal, federal standard for what these dates mean, leaving it up to states to make their own rules and regulations based on a hodge-podge of information, recommendations, and industry discretion. Some states don’t require labeling at all, and standards vary widely. In Montana, for example, milk can be sold for only 12 days after it’s pasteurized, but cross the border into Idaho, and it can be sold for more than 20 days. While companies aren’t required to put dates on products (except for baby formula), they cannot print false or misleading information — but they also don’t need FDA approval for any dates they do print.
Ultimately, expiration dates have much more to do with quality than safety. However, a 2019 study found that 84% Americans throw out food at least occasionally because it’s nearing/past the date on the package. Andy Harig of FMI (a food industry association) told CNN in an interview that the printed date is mostly about protecting the brand, an estimate of when the food will taste best so that customers will enjoy it and continue to purchase it. The date is not an exact science, but a prediction of when an item will be of highest quality in terms of taste, appearance, and texture. While it might provide consumers comfort as a point of reference, it isn’t really telling us what we need to know. Not only could the food still be safe, but if not stored properly it might be bad far before the date. “Use by” dates will often be a conservative estimate, too, since producers anticipate that consumers likely won’t store the product perfectly.
The Problem of Food Waste
According to the USDA, 30-40% of the United States’ food supply is wasted every year, and the average household spends a whopping $1,866 a year on food that ends up being thrown away. Food waste is not only an issue of wasted money, but of growing greenhouse gas emissions, landfill space, and widespread food insecurity.
Of all food that’s wasted in the home, The FDA estimates that about 20% stems from uncertainty about the meanings of labels on packaged foods. In other words,one-fifth of a household’s food is usually thrown out due to expiration dates, even when some of that food might still be perfectly safe to eat.
Luckily, there has been some legislative momentum to create better standards for these expiration dates. The Food Date Labeling Act of 2021 aims to require food manufacturers to label products with “use by” and “best by” alongside dates to specifically communicate safety and quality, respectively. But even if this act is signed into law, the government would also need to make a more concerted effort to communicate what these labels mean to consumers.
How Can You Tell Whether Something That’s Past Its Expiration Date Is Safe to Eat?
On the FoodKeeper app developed by the USDA’s Food Safety and Inspection Service, users can look up how long certain foods last by different storage methods. Our bodies are also pretty good at detecting decay. If you’re not sure whether a food item is safe to eat, rely on your senses. Most products will have a clear change in smell, appearance, and taste if they’ve turned. Pay special attention to any changes in color, texture, or consistency.
U.S. Department of Agriculture
There are a few general rules of thumb for how long certain items last, regardless of what the package says:
Some things basically never go bad, including sugary products like corn syrup, molasses, honey, and plain sugar; vanilla and other extracts; salt; and vinegar.
Grains vary in terms of their shelf life. Generally, white grains last longer than unrefined brown ones, which have a higher fat content. White flour lasts basically forever, but whole grain will go bad after a few months. White and brown rice act similarly.
Dried beans last for several years, but will become harder and thus more difficult to soften through cooking over time (although they’re still perfectly safe to eat).
Oils last a long time too if they are kept in sealed containers, but do a sniff test first. If it’s turned, it’ll smell metallic or fishy, and will feel more glue-like. Similarly, dressings made of vinegar or oil (unless they include dairy or other additives) last for up to a year when refrigerated.
Canned and jarred foods last for years — even decades, in some cases. Plastic, however, is often gas-permeable and won’t last as long. When opened up, there should be no rotten smell, cloudiness, or mold. On jars, the little button on the top should be rigid when pressed. If it’s popped, bacteria has likely grown inside the jar.
Milk is one of the most wasted foods in the world, but because so many germs are killed during the pasteurization process, it’s often completely safe to drink after the expiration date — just do a quick inspection of its odor and appearance before tasting.
Eggs typically last three to five weeks or longer. A typical egg test (other than smelling something rotten when you crack it open) can be performed by carefully placing it in a bowl of water. If the egg floats to the surface rather than falling to the bottom, it’s likely gone bad.
Infant formula products are the exception to this haphazard expiration-dating, and are regulated by the FDA. To determine the “use-by” date, manufacturers determine when the product will no longer have the minimum amount of each indicated nutrient. Labels on products that are considered “foods that pregnant women should avoid” should also be heeded. These include things like raw fish, deli meats, unpasteurized dairy products, and sprouted vegetables because of their ability to carry listeria, an invisible and dangerous bacteria. These products are often served cold, so they don’t go through the heating process (the “kill step”) that kills bacteria before being consumed.
It’s important to remember that food will already have been contaminated with germs like E. coli or salmonella before it’s brought home, but proper storage can inhibit the growth of these pathogens and generally keep food fresher for longer. Keeping the refrigerator at 40 degrees Fahrenheit or cooler can inhibit the growth of E. coli, or heating the food to 140 degrees Fahrenheit or hotter.
