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(ACC Mentioned) Revising the Toxic Substances Out-of-Control Act
Jun 29, 2015 | Huffington Post
By Steven Cohen
It is a good thing that America had a bipartisan environmental majority in the 1970s and 1980s or our air today would be unbreathable and our water would be undrinkable. -
(ACC Mentioned) Compromises Derail Bill to Regulate Toys
Jun 29, 2015 | Capital New York
By Scott Waldman
Even though it was supported by a vast majority of lawmakers for two years running, a bill to ban toxic chemicals in children's products died in the waning days of session. -
(ACC Mentioned) Manufacturers Balk At EPA Nano Proposal
Jun 29, 2015 | Chemical & Engineering News
By Jessica Morrison
The American Chemistry Council , a chemical manufacturers’ trade group, argues that the proposal would require companies to report physical and chemical information for nanomaterials even though standards are not yet in place for generating those data. -
'Toxics' Bill is an Unnecessary Overreach: Editorial
Jun 29, 2015 | The Oregonian
Many of Oregon's notable policy failures are a consequence of overreach. Why do something simple, lawmakers seem to ask, when you can do something complex and hyper-ambitious instead? -
State Sets Up Oversight Panel for Toxics Agency
Jun 29, 2015 | E&E - Greenwire
California will set up a new independent panel to oversee the Department of Toxic Substances Control after officials found a series of problems with how the agency regulates hazardous waste in the state. -
US Chemical Safety Board Controversy Continues
Jun 29, 2015 | Chemistry World
By Rebecca Trager
Recent events have highlighted the dysfunction and discord within the US Chemical Safety Board (CSB), the independent federal agency charged with investigating serious industrial chemical accidents. -
Terrorist Attack Hits U.S.-Owned Chemical Plant In France
Jun 26, 2015 | Chemical & Engineering News
By Alex Scott
A suspected Islamist extremist attacked an Air Products & Chemicalsindustrial gases plant early on June 26 in L’Isle-d’Abeau, near Lyon, France. -
Inhofe Presses CSB Nominee to Consider Firing Top Staffers
Jun 29, 2015 | E&E - Greenwire
By Sam Pearson
Senate Republicans are urging President Obama's nominee to lead the U.S. Chemical Safety Board to take a stand on whether she would discipline two officials accused of improper actions under former CSB Chairman Rafael Moure-Eraso. -
Supreme Court: EPA Erred in Rule on Toxic Emissions from Power Plants
Jun 29, 2015 | The Washington Post
By Robert Barnes and Joby Warrick
The Supreme Court on Monday said the Obama administration’s Environmental Protection Agency erred by not considering costs when it issued landmark 2011 regulations controlling emissions of mercury and other toxins from power-company smokestacks. -
High Court Strikes Down EPA Limits on Mercury Emissions
Jun 29, 2015 | The Wall Street Journal
By Brent Kendall and Amy Harder
A divided Supreme Court on Monday threw out the Environmental Protection Agency’s first-ever rules requiring power plants to cut emissions of mercury and other toxic air pollutants, a significant blow to the Obama administration’s environmental agenda. -
Supreme Court Blocks Obama’s Limits on Power Plants
Jun 29, 2015 | The New York TImes
By Adam Liptak and Coral Davenport
The Supreme Court on Monday blocked one of the Obama administration’s most ambitious environmental initiatives, an Environmental Protection Agency regulation meant to limit emissions of mercury and other toxic pollutants from coal-fired power plants. -
Supreme Court Overturns Landmark EPA Air Pollution Rule
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama and Lydia Wheeler
The Supreme Court overturned the Obama administration’s landmark air quality rule on Monday, ruling the Environmental Protection Agency did not properly consider the costs of the regulation. -
SCOTUS Snaps EPA Winning Streak
Jun 29, 2015 | The Hill - E2 Wire
By Devin Henry
The Supreme Court’s rejection of an Environmental Protection Agency (EPA) air quality regulation on Monday ends the agency’s recent winning streak at the federal courts. -
Supreme Court Deals Blow to Obama’s Green Agenda
Jun 29, 2015 | PoliticoPro
By Alex Guillen
The Supreme Court dealt President Barack Obama’s environmental agenda a major setback on Monday, ruling that the Environmental Protection Agency had erred in writing its 2012 limits on mercury pollution from power plants. -
Supreme Court Upends EPA Rules for Mercury Emissions
Jun 29, 2015 | The Hill - E2 Wire
By Jeremy P. Jacobs
The Supreme Court today ruled that U.S. EPA should have considered compliance costs before issuing its landmark limits for mercury and other hazardous air pollutants from power plants. -
High Court Remands Utility MACT Over EPA's Failure To Review Costs
Jun 29, 2015 | InsideEPA
The Supreme Court in a 5-4 decision has remanded EPA's maximum achievable control technology (MACT) air toxics rule for power plants to the lower courts after finding the agency erred when it failed to consider costs in its findings that the rule was “appropriate and necessary.” -
Congress Takes a Break, Tees Up Bills to Cripple Clean Power Plan
Jun 29, 2015 | E&E - Energywire
By Emily Holden and Rod Kuckro
Congress has left town for the Independence Day recess after the House last week easily passed legislation to thwart U.S. EPA's proposed Clean Power Plan -
Will Tension Between Lawmakers and Regulators Hamstring the Clean Power Plan?
Jun 29, 2015 | E&E - Climatewire
By Emily Holden
Faced with whittled-down budgets and a growing pile of federal mandates, state lawmakers and energy and environment regulators grappling with immense industry changes don't always get along. -
White House: High Court Decision Shouldn't Impact Greenhouse Gas Rule
Jun 29, 2015 | PoliticoPro - Whiteboard
By Darren Goode
The White House is doubling down on EPA’s determination to complete its greenhouse gas controls for power plants despite today’s Supreme Court rejection of a separate rule on mercury and air toxics. -
Justices Topple EPA Mercury Regs in Ruling Seen as Limited
Jun 29, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
The Supreme Court ruled today that the Obama administration unlawfully failed to consider compliance costs before it issued its landmark power plant emission limits for mercury and other hazardous pollutants. -
Green Group's Unconventional Fight Against Fracking
Jun 29, 2015 | Reuters
By Richard Valdmanis
The residents of Grant Township, Pennsylvania, were worried about Little Mahoning Creek, a picturesque trout stream best fished in the spring when the water runs fast. -
States Sue to Block Obama's Water Rule
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
Texas, Louisiana and Mississippi sued the Obama administration Monday to stop a new regulation asserting federal authority over minor waterways like streams and wetlands. -
(ACC Mentioned) Senate Approves Bill To Reform Rail Policy
Jun 29, 2015 | Chemical & Engineering News
By Glenn Hess
The bill would streamline STB’s “overly burdensome rate review process” and allow the board to be more proactive in resolving freight rail issues, says Calvin M. Dooley, chief executive officer of the American Chemistry Council , a chemical trade association.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
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Energy and Environment News
Transportation News
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(ACC Mentioned) Revising the Toxic Substances Out-of-Control Act
Jun 29, 2015 | Huffington Post
By Steven Cohen
It is a good thing that America had a bipartisan environmental majority in the 1970s and 1980s or our air today would be unbreathable and our water would be undrinkable. Fortunately, laws governing air and water pollution, solid and hazardous waste, endangered species, and toxic substances were enacted during those crucial decades. Since 1990, however, we have passed no major new environmental laws and, rather than update these laws, we struggle to retrofit them to deal with new environmental challenges. While the Clean Air Act is now being used to regulate greenhouse gases as air pollutants, other environmental laws are unfortunately outdated and cannot handle the new dangers caused by changing technologies. For example, a federal regulatory exemption for small quantities of household hazardous waste has made it difficult to regulate the electronic waste from smart phones and laptops. The most serious gap in regulatory coverage, though, may be in the decades-old (1976) Toxic Substances Control Act.
Last year, a chemical used to process coal leaked into the Elk River--a major source of Charleston, West Virginia's water supply. As a result, people went without tap water for several days. Charleston's water crisis placed the regulation of toxic chemicals back on the political agenda in Washington. In a piece on the latest efforts to modernize America's toxics law, Coral Davenport of the New York Times observed that:
Under the 1976 law, the Environmental Protection Agency is required to evaluate the safety of new chemicals introduced in the marketplace. But the agency was not required to evaluate the roughly 64,000 chemicals already being used in American commerce. Since then, about 22,000 new chemicals have been introduced and evaluated, and those that the agency designates as toxic and hazardous are subject to regulation. But the vast majority of chemicals -- including the one that fouled the Elk River, 4-methylcylcohexane methanol, or MCHM -- are unregulated, and little information about many of them is publicly available. Under current law, even asbestos, a known carcinogen, is exempt from regulation.
Under a very mild new law winding its way through Congress, EPA would be required to review the toxicity of 10 chemicals per year. This is a minuscule, almost absurd number when compared to the 64,000 unregulated chemicals now in use. The chemical industry and its lobbyists support this token effort and it is possible that it will be signed into law this summer.
My pragmatic side wants to say that controlling ten hazards is better than controlling none, but I'm not really sure that is true. Assuming we stop inventing new chemicals, it would take over 6,000 years to test the ones we have already created. Let's compare the process for introducing new chemicals to the one that the Food and Drug Administration requires before new drugs are allowed to be introduced in the United States. The introduction of new drugs must adhere to the precautionary principle. Before we allow drugs to be released for use by the public, we test them in the laboratory, then on animals, and then on humans. In contrast, new chemicals are introduced into use and only controlled if they have been proven to cause harm; many times, even after harm is proven they are allowed to continue. In most cases, we simply do not know if the chemicals are harmful.
Our regulation of toxic substances is based largely on ignorance and is inadequate and idiotic. The costs of testing for harm are not negligible, but are far lower than the cost of paying for toxic clean-up or for the cost of health care for those exposed to poison. The Natural Resources Defense Council's website succinctly summarizes the horrific state of toxics control in the United States:
Under the law now, the EPA must prove a chemical poses an "unreasonable risk" to public health or the environment before it can be regulated. Widely considered a failure, the law allowed 62,000 chemicals to remain on the market without testing when it first passed. In more than 30 years, the EPA has only required testing for about 200 of those chemicals, and has partially regulated just five. The rest have never been fully assessed for toxic impacts on human health and the environment. For the 22,000 chemicals introduced since 1976, chemical manufacturers have provided little or no information to the EPA regarding their potential health or environmental impacts.
The impacts of these toxics on our health are often difficult to measure. We are not always aware of the chemicals we come in contact with or the intensity of our exposure. Interactive effects are also difficult to trace. We learn that our workplaces and homes are more toxic than they once were when we need to renovate them or when a fire takes place. When we renovate a building and discover we need to remove asbestos from the walls, we are in effect undertaking a very expensive toxic clean-up. When fire fighters enter a burning home they are now required to wear breathing apparatuses to protect them from the toxic fumes that are emitted from burning furniture, counters and floor coverings. A half-century ago these building materials were made from organic matter: cotton, wool, wood, metal and stone. Today, we use more and more plastics in our interior finishes and furnishings.
I am not opposed to "better living through chemistry" and I am not looking to buy a wooden iPhone, but I do not understand why the chemical industry does not cooperate in an effort to ensure that the products they sell do not harm people and the planet. An unregulated chemical industry is an invitation for disaster. Fortunately, there is at least one place in America where regulation of toxic chemicals is taken seriously--California (of course). In 2013, the California Department of Toxic Substances Control began the phased implementation of its Safer Consumer Products Program. This program is designed to:
...reduce toxic chemicals in consumer products, create new business opportunities in the emerging safer consumer products economy, and reduce the burden on consumers and businesses struggling to identify what's in the products they buy for their families and customers. ...By shifting the question of an ingredient's toxicity to the product development stage, concerns can be addressed early on. The approach results in safer ingredients and designs, and provides an opportunity for California industry to once again demonstrate its innovative spirit by making products that meet consumer demand throughout the world.
California's program publishes a list of dangerous chemicals and targets a small number of products containing those chemicals. According to the Center for Public Integrity's Ronnie Greene:
Companies manufacturing those goods in California... launch detailed assessments to see whether safer chemicals are available and, if so, alter their products. The goal: To remove toxic chemicals from commerce and prompt industry to provide safe alternatives.
Greene notes that the American Chemistry Council, the group that has lobbied against federal toxics reform, also lobbied against California's new regulations. California's state government was able to overcome the interest group's efforts and create this modest new effort to regulate toxic chemicals.
California has long represented America's future. Its nearly 39 million people make it the largest state in the union, and it has been a trendsetter--both positive and negative. While it confronts gridlock on its freeways and a historic drought in its water supply, it is also home to Silicon Valley and remains a magnet for people from all over the world. Its environmental policies have long exceeded national requirements and I'm not surprised that it is a pioneer in toxic substances regulation.
On a more crowded planet with a higher level of consumption, we need to learn to use resources more wisely and exercise greater care when we use chemicals that can harm living organisms. The toxics in Charleston's water supply were a warning. If we want to ensure that it does not represent our environmental future, we should take the warning seriously.
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(ACC Mentioned) Compromises Derail Bill to Regulate Toys
Jun 29, 2015 | Capital New York
By Scott Waldman
Even though it was supported by a vast majority of lawmakers for two years running, a bill to ban toxic chemicals in children's products died in the waning days of session.
The bill never came up for a vote in the Republican-controlled Senate after its supporters split and industry lobbyists made an all-out push to prevent it from getting to the Senate floor.
The bill, dubbed the Child Safe Products Act, sailed through the Assembly in April and had the support of two-thirds of the State Senate, including liberal Democrats and conservative Republicans. The League of Conservation Voters got behind it and leveraged a six-figure financial push from a natural products company to help get it across the finish line. Governor Andrew Cuomo included it in his budget book.
So what happened?
Early this month, State Senator Phil Boyle, a Long Island Republican, said the bill appeared poised to pass the Senate. But weeks of closed-door negotiations among Senate Republicans, industry lobbyists and supporters opened up a rift among the bill's supporters.
Boyle said compromise language in the bill "made some people happy and offended," so he sought to find a "sweet spot" that would satisfy the industry but which also ensured the level of safety that supporters desired. But achieving that compromise proved impossible.
The League of Conservation Voters exerted significant pressure behind closed doors, pushing more lawmakers even as it worked with industry to find a compromise version of the legislation. The bill's main opponents, including the American Chemistry Council and the Toy Industry Association, both said it was unnecessary and would lead to job losses.
But some environmental groups, including the powerful Environmental Advocates of New York, were unhappy with the concessions the league and groups supporting the bill were willing to give industry, including shifting enforcement to the Department of State and a pre-emption clause that would override local bans. As a result, Democratic senators, lead by Brad Hoylman of Manhattan, abruptly withdrew their support as the end of session neared.
Closed-door negotiations excluded some of the key lawmakers and environmental groups needed to pass the bill, said Assemblyman Steve Englebright, a Long Island Democrat and chair of environmental conservation committee.
"We were not invited," he said, adding that in his view the revamped bill in the Senate was a "complete giveaway to the industry.”
League spokesman Jordan Levine said it wasn't news that advocacy groups split on the bill because industry groups had frequent splits as well.
“It's not a surprise when advocates don't agree either,” he said. “What is surprising is that a broad coalition of both advocates and industry have come together on an unprecedented agreement that would still be the strongest law in the nation.”
Last week, as it lined up support for a revamped bill to pass the Senate, the league sent an email to Assembly members, asking them to “clear the air” and reveal where they stood on the measure, a clear attempt to line up support in the Assembly for the new bill if it passed the Senate. That, too, caused some rifts between Democrats in the Assembly, and a League representative later sent an apology email.
By then, the rift was already too deep. Senate Democrats told reporters they would only support the original bill, not any amended version. There was a similar division n the Assembly.
Democratic assemblywoman Deborah Glick of Manhattan tweeted her criticism of the League in the wake of the emails.
“You can always count on NY League of Conservation Voters 2 undercut real environmental progress. One reason Not 2 seek endorsement.”
On Friday, the Business Council of New York State, which lobbied intensively to kill the bill and favored federal legislation instead, hailed its demise as one of the group's key victories.
“We are particularly pleased with the Senate Majority for rejecting the so-called “Safe Child Product’s Act” which would have created a tremendous regulatory burden without making consumer products safer,” C.E.O. Heather Briccetti said in a statement.
Supporters say they will spend the summer regrouping and pushing more local versions of the bill. A number of the local bills will take effect just before the busy Christmas season.
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(ACC Mentioned) Manufacturers Balk At EPA Nano Proposal
Jun 29, 2015 | Chemical & Engineering News
By Jessica Morrison
...The American Chemistry Council , a chemical manufacturers’ trade group, argues that the proposal would require companies to report physical and chemical information for nanomaterials even though standards are not yet in place for generating those data...
Access to full text unavailable -- subscription required.
Story can be found at: http://cen.acs.org/articles/93/i26/Manufacturers-Balk-EPA-Nano-Proposal.html
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'Toxics' Bill is an Unnecessary Overreach: Editorial
Jun 29, 2015 | The Oregonian
Many of Oregon's notable policy failures are a consequence of overreach. Why do something simple, lawmakers seem to ask, when you can do something complex and hyper-ambitious instead? The answers to that question abound – Cover Oregon, the Business Energy Tax Credit and most recently the low-carbon fuel standard. Lawmakers keep right on reaching anyway, and the impulse is driving Senate Bill 478 – aka "the toxics bill" – ever closer to the governor's desk.
The bill's purpose – to protect children from toxins - is part of its genius. Protecting kids is something everybody wants, for which reason the legislation automatically enjoys a significant level of uncritical support. Even so, similar proposals have died in the Legislature before, including in 2013. As appealing as it might sound, this bill has problems – and a very cheap and simple alternative.
The legislation, broadly speaking, would do two things. First, it would establish a list of "high priority chemicals of concern" and require manufacturers of children's products to report the presence of such substances "at or above a de minimis level." The resulting database would be searchable by the public. Second, the bill eventually would require manufacturers to remove these substances from a few classes of products used by very young children. Manufacturers could apply for waivers under certain circumstances – if, for instance, removal is "not financially or technically feasible" – but otherwise the mere presence of a listed chemical in a covered product would be treated as evidence of danger.
As alarming as the bill's terminology might be, the presence of "high priority chemicals of concern" in a product doesn't necessarily mean that using it is dangerous, acknowledges chief Senate sponsor Chris Edwards, D-Eugene. "Any given product by itself can be deemed to be safe if any child were exposed to only that product," he says. "But there's no way to know the total load on a child's system because there are so many products."
The bill targets a fuzzy area insufficiently covered, supporters believe, by federal regulations, which most efficiently govern products marketed in all 50 states. A handful of states, including Vermont, Minnesota and Washington, have adopted related legislation that focuses largely upon the reporting of chemicals deemed worrisome. SB478 would leap with unusual vigor into ban-'em territory.
Surely, you'd think, state lawmakers would be loath to contribute in such dramatic fashion to the creation of a nationwide regulatory patchwork unless they were responding to a true health emergency. This view, however, doesn't square with the loopholes written into SB478. Manufacturers of children's products with global sales under $5 million need not report or remove "high priority chemicals of concern." Manufacturers with 25 or fewer employees may ask for an extra two years to remove listed chemicals.
And then there's the special sporting-goods exemption.
The reporting language in SB478 was written carefully to mirror Washington's program. Oregon will adopt Washington's list of worrisome chemicals, for instance. Oregon will consider adding or dropping chemicals added or dropped by Washington. The monkey-see, monkey-do approach is smart – why repeat work someone else is doing already? – and extends even to definitions. Among these are categories of products excluded from scrutiny, including certain sporting goods. As introduced, the definition of a key sporting-goods exemption mirrored Washington law almost exactly. Recently, however, an amendment to Oregon's bill packed the sporting-goods exemption with scads of products – backpacks, tents, rain gear, sport bags, luggage and so on – marketed, Edwards acknowledged, by the "fairly large sporting equipment and apparel cluster in Oregon."
It's unlikely that lawmakers would carve out such exemptions in a law that responded to anything approaching a public health crisis. You could argue that small and local businesses deserve some concessions, but the freedom to poison kids clearly isn't one of them.
Why, given the limited nature of the problem SB478 seeks to address, take the dramatic and unusual step of compelling manufacturers to remove listed chemicals? Supporters argue that the federal government isn't doing enough to address the problem. However, an update of the 1970s-era Toxic Substances Control Act is working its way through Congress, clearing the House Tuesday by a vote of 398 to one. Telling manufacturers what they may not include in products sold to children is best left to Uncle Sam, who happens to be moving in the right direction.
That leaves the matter of collecting and reporting chemical information for the benefit of parents, many of whom might like to exercise an abundance of caution in shopping for their kids. In that respect, SB478 itself points to a solution that eliminates the need for the bill itself. Because the bill's collection and reporting elements deliberately mimic Washington's program – albeit with some Oregon-specific loopholes – why not defer entirely to the state to our north?
Everything in SB478 that's worth doing, in other words, could be accomplished at almost no cost to Oregonians by steering them to the website site for Washington's Children's Safe Products Act.
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State Sets Up Oversight Panel for Toxics Agency
Jun 29, 2015 | E&E - Greenwire
California will set up a new independent panel to oversee the Department of Toxic Substances Control after officials found a series of problems with how the agency regulates hazardous waste in the state.
Under a provision in the state budget Gov. Jerry Brown (D) signed last week, the three-person review panel will monitor the department's work to improve permitting, enforcement, fiscal management and public outreach and will report to Brown and the Legislature every 90 days.
The board is mandated to include a community representative, a scientist with experience with toxic materials and a local government expert.
The increased oversight comes as DTSC was found to have problems enforcing hazardous waste laws, a backlog of expired facility permits and $194 million in funds owed to the state that went uncollected (Tony Barboza, Los Angeles Times, June 26). -- SP
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US Chemical Safety Board Controversy Continues
Jun 29, 2015 | Chemistry World
By Rebecca Trager
Recent events have highlighted the dysfunction and discord within the US Chemical Safety Board (CSB), the independent federal agency charged with investigating serious industrial chemical accidents.
The CSB, whose members are appointed by the President and confirmed by the Senate, has faced tumultuous times, especially over the last year. The drama culminated in the resignation of its chairman, Rafael Moure-Eraso, in March amid allegations of general mismanagement and use of private email for official board business to circumvent the system. When the White House asked Moure-Eraso to leave under growing pressure from Congress, it appeared that the controversy would die down.
But earlier this month, shortly after CSB board member Rick Engler was granted temporary administrative authority for the board, CSB’s managing director Daniel Horowitz and general counsel Richard Loeb were suddenly placed on administrative leave. At the time, the CSB said it wouldn’t comment on ‘internal personnel matters,’ but the tumult has since grown.
In Loeb’s absence, Raymond Porfiri – who has worked at CSB for about 16 years and is the CSB’s deputy general counsel – has been left as CSB’s top lawyer and the head of its legal department. However, evidence has now come to light that Porfiri is suing the agency for hundreds of thousands of dollars.Lingering lawsuit
Porfiri’s October 2014 lawsuit against the CSB alleges various incidents of discrimination and failure to accommodate his injuries that resulted from an April 2011 accident at his home. Among other things, Porfiri’s suit demands a $300,000 (£191,000) from the CSB, according to documents released by the non-profit Public Employees for Environmental Responsibility (PEER).
There is a conflict because Porfiri is currently supervising the CSB attorney who is defending the agency against his own lawsuit, according to PEER. In addition, the organisation claims that Porfiri is pressing for settlement now, before the motion is decided.
However, Engler maintains that there is no conflict. ‘There is a firewall between Porfiri and his own legal action against the agency,’ he tells Chemistry World. ‘He has had, and will continue to have, nothing to do with handling his own claim against the board,’ Engler adds. He says the CSB is represented by a federal attorney in this matter, so Porfiri has no involvement in his own litigation. Furthermore, Engler denies that Porfiri is supervising the person who is managing his case against the CSB.More changes ahead
Porfiri’s job has not specifically changed, and it could have been perceived as discrimination due to his pending lawsuit had Porfiri not been made use of during Loeb’s absence, according to the CSB.
Meanwhile, another announcement about a further staff reorganisation at the board is expected imminently. ‘We are trying to stabilise the agency – we are doing our best to focus on mission,’ Engler states. ‘This agency has a backlog of long overdue reports, and by all objective surveys, it has extremely low morale.’
At the same time, several congressional committees have been calling for reforms to the CSB and its governance, including the House Government Oversight and Reform Committee, the House Energy and Commerce Committee, and the Senate Environment and Public Works Committee.
In addition, the CSB notes that the Senate Appropriations Committee ‘sent the CSB an unmistakable message’ in June by slashing $300,000 from the board’s proposed budget of $11 million in fiscal year 2016. The appropriators cited issues related to the board’s records management, contracting, personnel management and lack of credibility, the CSB says.
President Obama had originally requested that the CSB receive a 10% increase in funding to $12.27 million in FY2016.
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Terrorist Attack Hits U.S.-Owned Chemical Plant In France
Jun 26, 2015 | Chemical & Engineering News
By Alex Scott
A suspected Islamist extremist attacked an Air Products & Chemicalsindustrial gases plant early on June 26 in L’Isle-d’Abeau, near Lyon, France. Onlookers told radio reporters that one man crashed a car traveling at high speed through the gates of the site and then into gas canisters, causing an explosion. The man has been arrested and the site locked down.
Inside the car, French police report that officers discovered a decapitated body with a message written on it. The head of the person was reportedly attached to the factory fence along with an Islamist flag.
Two other people were injured in the attack, said French President François Hollande in a press briefing. No further details were given about their condition. “There is absolutely no doubt about this that the intention was to cause an explosion,” Hollande said.
It is unclear whether the individual who was killed was from inside the chemical complex, although Air Products says all of its personnel at the site have been evacuated and accounted for.
The site is secure, Air Products tells C&EN. The firm has put into action a set of planned crisis procedures. “Our crisis and emergency response teams have been activated and are working closely with all relevant authorities,” the firm says. Police have been brought into the area to ensure there is no further security threat.
France’s interior minister, Bernard Cazeneuve, identified the suspect who was arrested as Yassine Salhi, who lives in St.-Priest, near Lyon. He is known to security sources as having connections to Salafists, an Islamic fundamentalist organization, but surveillance of him was dropped in 2008.
The incident at the plant was one of three attacks by suspected Islamist terrorists today. Thirteen people have been reported killed in an attack on a mosque in Kuwait, and at least 28 people were reportedly killed at a vacation resort in Tunisia. Whether the three attacks are part of some coordinated operation is a possibility authorities say that they are investigating.
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Inhofe Presses CSB Nominee to Consider Firing Top Staffers
Jun 29, 2015 | E&E - Greenwire
By Sam Pearson
Senate Republicans are urging President Obama's nominee to lead the U.S. Chemical Safety Board to take a stand on whether she would discipline two officials accused of improper actions under former CSB Chairman Rafael Moure-Eraso.
The nominee, Vanessa Sutherland, the general counsel at the Pipeline and Hazardous Materials Safety Administration, largely skirted senators' calls to weigh in on hypothetical personnel actions, and lawmakers questioned her qualifications ahead of an internal probe of PHMSA, documents obtained by Greenwire show.
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) asked Sutherland whether she would "hypothetically" consider at least eight actions allegedly taken by Moure-Eraso, Managing Director Daniel Horowitz and general counsel Richard Loeb to "justify dismissal of that employee, or do you think it would be appropriate for that employee to remain in a senior position"?
Both Horowitz and Loeb are on administrative leave as the board investigates their conduct (E&E Daily, June 18).
Echoing allegations first made against Horowitz and Loeb in a June 2014 House Oversight and Government Reform Committee report, Inhofe asked about offenses including "chastising a CSB employee for consulting with" the Office of Management and Budget, "criticizing the credentials of experienced CSB investigators," "micromanaging investigations," "calling an employee a fool for bringing information on the cost of investigations to supervisor meetings" and helping Moure-Eraso schedule votes without notice to other board members (Greenwire, June 19, 2014).
Sutherland said in her response to Inhofe's committee that she takes personnel matters "very seriously" but would need to look into the situation. Her actions would include determining "over what period did these behaviors occur, was disciplinary action already taken and recorded, and were there any other facts or employee behaviors that contributed to the actions."
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She added, "Organizations cannot promote a culture of excellence or innovation when their senior leaders, whether appointed or hired, do not engage in respectful, ethical and legal behaviors."
Inhofe also took aim at Sutherland's biggest qualification to lead the CSB: her nearly four years as the top attorney at PHMSA, a Department of Transportation agency. The senator noted that while Sutherland had repeatedly touted her experience at the pipeline regulator, PHMSA "is currently under investigation by its inspector general relating to delays in carrying out its mission, so it may not be the best model."
That investigation, launched at the request of Rep. Peter DeFazio (D-Ore.), the ranking member on the House Transportation and Infrastructure Committee, will examine PHMSA's conduct over the past decade. DeFazio has said the probe is needed to "shed needed light on this opaque agency and force it to address serious safety concerns" (E&ENews PM, May 5).
Sutherland repeatedly cited her work at PHMSA, including a deployment to a gas-pipeline rupture in Sissonville, W.Va., in 2012, as preparing her to run the CSB (Greenwire, April 22).
Inhofe also asked Sutherland to explain criticism he said he received from industry that PHMSA has moved too slowly to update standards governing the operation of small-scale liquid natural gas fueling stations.
Sutherland pledged to more closely involve CSB members in decisions -- something Moure-Eraso was criticized for not doing. She also pledged to adhere to a 2002 Department of Justice Office of Legal Counsel opinion regarding the authority of CSB board members and a 1999 letter from then-Sen. Frank Lautenberg (D-N.J.) expressing his view of the proper relationship of CSB board members to the chairman.
Sutherland also compared two board disputes, only one of which Congress has criticized.
A situation at a public meeting in Richmond, Calif., earlier this year in which Moure-Eraso and board member Manuel Ehrlich approved a CSB order consolidating authority with the chairman, without publishing the order in the meeting agenda or providing it to board member Mark Griffon beforehand, was "unfortunate," Sutherland wrote.
The use of surprise board motions, Sutherland wrote, rather than being solely a tool of Moure-Eraso, has "been a common practice, and spans over several different chairs and members."
Sutherland noted at another Richmond meeting in early 2014 that Griffon and former board member Beth Rosenberg had demanded an immediate vote on a motion to delay a CSB report on an investigation into a 2012 fire at the Chevron Corp. refinery in Richmond.
"I believe that members should be free to offer motions, and at the same time, they should also be collegial with, and respectful of, one another so that 'surprise motions' are unnecessary and highly unpopular," Sutherland wrote, adding that if confirmed she would not participate in this practice.Watchdog criticizes EPW chairman
The lack of congressional focus on how the CSB could improve the safety of chemical plants -- rather than its internal machinations -- showed that Inhofe and others were not interested in helping the agency achieve its mission, Public Employees for Environmental Responsibility Executive Director Jeff Ruch said in interview.
"As I understand, Sen. Inhofe's position is he would confirm her to be on the board if she promises not to make chemical facilities safer," Ruch said. "It's telling, because it reveals what we think is the hidden agenda between a lot of the tumult over the past year, most of which is centered on what we think are peripheral and trivial issues."
Inhofe's call for Sutherland to commit to firing Horowitz and Loeb was inappropriate, Ruch said, and could actually make it harder to terminate them even if Sutherland wanted to.
"If the incoming chair had said, before she conducted an investigation, 'I will fire them,' it will probably undermine whatever case they had for firing them and be cause for reversal," Ruch said. "They're entitled to due process -- it's a constitutional right of due process that appears to be lost in the hubbub."
An EPW aide defended the push to fire Horowitz and Loeb as a reasonable measure to fix years of problems at CSB.
"Even putting in a full slate of new board members isn't going to change the culture if those guys are still there running the show behind the scenes," the aide said.
Kristina Baum, a spokeswoman for the EPW Committee, said there was no timetable to act on Sutherland's nomination, or that of board member nominee Kristen Kulinowski, despite the CSB currently having just two members -- Rick Engler and Ehrlich -- after Griffon's departure last week.
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Supreme Court: EPA Erred in Rule on Toxic Emissions from Power Plants
Jun 29, 2015 | The Washington Post
By Robert Barnes and Joby Warrick
The Supreme Court on Monday said the Obama administration’s Environmental Protection Agency erred by not considering costs when it issued landmark 2011 regulations controlling emissions of mercury and other toxins from power-company smokestacks.
The court’s 5-to-4 decision halts further implementation of the Mercury and Air Toxic Standards rule, which required hundreds of coal-burning plants to install equipment to control mercury, a substance linked in multiple studies to respiratory illnesses as well as birth defects and developmental problems in children.
But the decision’s immediate impact could be muted, as many of the country’s electricity utilities had already taken steps to comply with the rules ahead of a deadline next year. EPA officials said the agency was reviewing its options while also noting that the justices focused on a cost-accounting procedure, and not on the agency’s ability to regulate toxic smokestack emissions through the Clean Air Act.
“EPA remains committed to ensuring that appropriate standards are in place to protect the public from the significant amount of toxic emissions from coal and oil-fired electric utilities and continue reducing the toxic pollution from these facilities,” EPA spokeswoman Melissa Harrison said.
Justice Antonin Scalia wrote for the majority, which included Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.
Justice Elena Kagan wrote the dissenting opinion for Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.
[Read: The Supreme Court’s decision in the EPA case]
The court was not deciding whether the law required the agency “to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value,” Scalia wrote. “It will be up to the agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”
It has taken decades to achieve the EPA’s goal of regulating mercury and other hazardous air pollutants. Some of the regulations have already gone into place, and they are to be fully implemented by 2016.
But they have been challenged by industry groups and 21 Republican-led states in which hundreds of the older plants are operating.
The issue comes down to what Congress meant when it ordered the EPA to study whether it was “appropriate and necessary” to regulate the pollutants from power plants. The directive was silent on whether that study should include the costs of regulation.
Objecting states and the industry contended that costs traditionally are a part of such decisions.
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High Court Strikes Down EPA Limits on Mercury Emissions
Jun 29, 2015 | The Wall Street Journal
By Brent Kendall and Amy Harder
A divided Supreme Court on Monday threw out the Environmental Protection Agency’s first-ever rules requiring power plants to cut emissions of mercury and other toxic air pollutants, a significant blow to the Obama administration’s environmental agenda.
The court, in a 5-4 majority opinion by Justice Antonin Scalia, ruled the EPA must reconsider the mercury rules because it didn’t properly take into account the costs of the regulations before deciding to adopt them.
The decision doesn’t prohibit the agency from limiting mercury emissions from power plants, so long as the EPA gives upfront consideration to the price tag for its regulations. But the ruling means the agency will have to go back to the drawing board, which could push any new emissions rules into the twilight of President Barack Obama’s time in office—or beyond.
The EPA adopted the mercury rules in 2012 and they went into effect earlier this year. The agency concluded costs weren’t a relevant consideration when it was deciding whether to develop regulations. The EPA did conduct estimates showing the rules would cost the utility sector $9.6 billion annually.
The regulations required coal and oil-fired power plants to install high-tech scrubbers to remove the pollutants. Many companies have already moved to install the controls. Some utilities received a time extension before having to comply with the rules, and they’ll now likely have an additional reprieve because of Monday’s ruling. The decision could also give utilities that have mothballed older coal-fired power plants the flexibility to bring them back online.
Of the approximately 600 power plants EPA has been regulating under the rule, about 460 of those are coal-fired plants. EPA has granted a one-year extension to about 35% of those plants, according to a March survey by the National Association of Clean Air Agencies, a nonprofit association made up of state air pollution control agencies.
U.S. utilities have been shifting away from coal, the most polluting electricity source, in recent years, propelled by a one-two punch of low natural-gas prices and tougher environmental regulations, especially the mercury rule.
The EPA says power plants are the single-largest source of U.S. emissions of mercury, a neurotoxicant that can be particularly harmful to children and unborn babies.
A group of 21 states, including ones that rely heavily on coal for electricity, and industry groups challenged the EPA at the Supreme Court.
Efforts to craft mercury regulations date back more than two decades, prompted by congressional amendments to the Clean Air Act in 1990. They have been delayed by litigation and legislative battles.
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Supreme Court Blocks Obama’s Limits on Power Plants
Jun 29, 2015 | The New York TImes
By Adam Liptak and Coral Davenport
The Supreme Court on Monday blocked one of the Obama administration’s most ambitious environmental initiatives, an Environmental Protection Agency regulation meant to limit emissions of mercury and other toxic pollutants from coal-fired power plants.
Industry groups and some 20 states had challenged the E.P.A.’s decision to regulate the emissions, saying the agency had failed to take into account the punishing costs its rule would impose.
The Clean Air Act required the regulation to be “appropriate and necessary.” The challengers said the agency had run afoul of that law by deciding to regulate the emissions without first undertaking a cost-benefit analysis.
Writing for the majority, Justice Antonin Scalia wrote: “It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading.”
The E.P.A. had argued that it was not required to take costs into account when it made the initial determination to regulate. But the agency added that it had done so later in setting emissions standards and that, in any event, the benefits far outweighed the costs.
The two sides had very different understandings of the costs and benefits involved. Industry groups said the government had imposed annual costs of $9.6 billion to achieve about $6 million in benefits. The agency said the costs yielded tens of billions of dollars in benefits.
The decision, Michigan v. Environmental Protection Agency, No. 14-46, does not strike down the rule, but it means the E.P.A. will have to review and rewrite it, taking costs into consideration. Industries will be expected to comply with the current rule until a revised one is issued.
“The E.P.A. will have to do more homework on costs,” said Sean Donahue, who represents environmental and public health groups that signed on to the agency’s case. “But I’m very confident that the final rule will be up and running and finally approved without a great deal of trouble. This is a disappointment. It’s a bump in the road, but I don’t think by any means it’s the end of this program.”Continue reading the main storyPollution LimitsIn three environmental regulation cases, the court found the Environmental Protection Agency violated the Clean Air Act by failing to undertake a cost-benefit analysis in deciding whether to set limits on emissions of mercury and other toxic pollutants from power plants.5-4DISSENTMAJORITYSotomayorKaganGinsburgBreyerKennedyRobertsScaliaAlitoThomas• In the mercury case, the United States Court of Appeals for the District of Columbia Circuit ruled that the agency’s interpretation of the Clean Air Act was reasonable.
An E.P.A. spokeswoman, Melissa Harrison, said the agency remained committed to enacting the rule on emissions of mercury, a toxic pollutant linked with threats to fetal health.
Ms. Harrison said that since the court’s ruling was about how and when the agency considered costs in its decision about limiting mercury and and other toxic emissions and not the agency’s authority to limit them over all, the E.P.A. was committed to protecting the public “from the significant amount of toxic emissions from coal- and oil-fired electric utilities and continue reducing the toxic pollution from these facilities.”
The mercury regulation was one in a series of new Clean Air Act regulations from the Obama administration that Mr. Obama hopes to build into a major environmental legacy. Later this summer the agency is expected to release a set of landmark climate change rules limiting greenhouse gas pollution from power plants — restrictions that have faced legal challenges from industry.
In the term that ended in June 2014, the justices heard cases on two other sets of Clean Air Act regulations — one aimed at limiting power plant pollution that wafts across state lines, the other at cutting planet-warming greenhouse gas emissions. The E.P.A. won the first case andlargely prevailed in the second, though the Supreme Court indicated that it remained prepared to impose limits on the agency’s regulatory authority.
Congressional Republicans, who have sought to limit the Clean Air Act rules, celebrated Monday’s decision.
“From its ozone to greenhouse gas to navigable waters rules, the E.P.A. continues to burden the public with more and more costs even as so many are still struggling to get by and improve their lives in this economy,” said Kevin McCarthy of Califoria, the House majority leader.“The Supreme Court’s decision today vindicates the House’s legislative actions to rein in bureaucratic overreach and institute some common sense in rule making.”
Scott Segal, who lobbies on behalf of electric utilities for the firm Bracewell & Giuliani, said the decision should come as a warning to the Obama administration as the E.P.A. prepares to unveil the climate change regulations this summer.
“They’ll need to take a hard-nosed economic analysis that the Supreme Court calls for,” he said.
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Supreme Court Overturns Landmark EPA Air Pollution Rule
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama and Lydia Wheeler
The Supreme Court overturned the Obama administration’s landmark air quality rule on Monday, ruling the Environmental Protection Agency did not properly consider the costs of the regulation.
In a 5-4 ruling, the justices ruled that the EPA should have taken into account the costs to utilities and others in the power sector before even deciding whether to set limits for the toxic air pollutants it regulated in 2011.
The case, Michigan v. EPA, centers on the EPA’s first limits on mercury, arsenic and acid gases emitted by coal-fired power plants, known as mercury and air toxics (MATS). Opponents, including the National Federation of Independent Business, say it's among the costliest regulations ever issued.
The EPA estimated its rule, which took effect for some plants in April, would cost $9.6 billion, produce between $37 billion and $90 billion in benefits and prevent up to 11,000 premature deaths and 130,000 asthma cases annually.
But the agency concluded that its regulatory impact analysis should have “no bearing on” the determination of whether regulations are appropriate, as set forth in the Clean Air Act.
In the majority ruling, Justice Antonin Scalia concluded that the EPA “unreasonably” interpreted the Clean Air Act when it decided not to consider industry compliance costs and whether regulating the pollutants is “appropriate and necessary.”
While the agency is afforded a certain level of power to interpret the law, the court wrote, “EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.”
Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Anthony Kennedy joined Scalia in overturning the rule, while Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg sided with the EPA.
Writing for the minority, Kagan said the EPA properly considered costs at a later stage in the regulation, something that it has done in other rules and that the courts have allowed.
“The majority’s decision that EPA cannot take the same approach here — its micromanagement of EPA’s rulemaking, based on little more than the word ‘appropriate’ — runs counter to Congress’s allocation of authority between the Agency and the courts,” she said.
The EPA said it is reviewing the decision and will decide any next steps — including re-doing the regulation — once that process is complete.
“EPA is disappointed that the Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” EPA spokeswoman Melissa Harrison said in a statement.
She said the agency “remains committed to ensuring that appropriate standards are in place to protect the public from the significant amount of toxic emissions from coal and oil-fired electric utilities and continue reducing the toxic pollution from these facilities.”
Opponents of the regulation immediately cheered the ruling, while environmentalists expressed disappointment.
“The mere fact that the EPA wished to ignore the costs of its rules demonstrates how little the agency is concerned about the effects it has on the American people,” House Majority Leader Kevin McCarthy (R-Calif.) said in a statement.
“The Supreme Court’s decision today vindicates the House’s legislative actions to rein in bureaucratic overreach and institute some common sense in rulemaking,” McCarthy said.
National Mining Association President Hal Quinn called the ruling a “vindication of common sense that is missing in much of the administration’s regulatory actions.”
“The decision effectively puts EPA on notice: reckless rulemaking that ignores the cost to consumers is unreasonable and won’t be tolerated,” he said.
Vickie Patton, general counsel for the Environmental Defense Fund, called the ruling “unfortunate” and said it puts communities and families at risk.
“While today’s decision is a setback, EPA has ample information to swiftly address the Court’s concerns,” she said.
“The court’s decision to let polluters off the hook is a huge setback for our kids' health,” Anna Aurilio, director of Environment America’s Washington office, said in a statement.
Since the ruling only concerns the cost-benefit analysis, the EPA can try writing the rule again if it considers costs.
While Monday's ruling struck down a major environmental priority for President Obama, it is not a complete loss.
Most power plant operators have already either complied by shutting plants down or retrofitting them, or have made firm plans to comply.
On a Friday appearance on HBO’s “Real Time with Bill Maher,” EPA head Gina McCarthy said she was confident the Supreme Court would rule in the EPA’s favor.
But she was not too concerned about what would happen if the ruling went against the EPA.
“This is a rule that actually regulates toxic pollution emissions from primarily coal facilities, and we think we’re going to win because we did a great job on it,” she said.
“But even if we don’t, it was three years ago. Most of them are already in compliance, investments have been made, and we’ll catch up. And we’re still going to get at the toxic pollution from these facilities,” she continued.
Furthermore, the EPA’s carbon limits for power plants are expected to shut down more than half of the nation’s coal-fired power plants, which would also reduce the other air pollutants.
“It is possible that, if the court strikes down the rule, some utilities might not be willing to pay the cost of running the control equipment as much as they would have to under the rule,” Jody Freeman, an environmental law professor at Harvard Law School, said before the ruling
“But generally the bottom line is that that utilities are already headed in the direction of putting more controls on this pollution, whether because of this rule, or to comply with the cross-state pollution rule the Supreme Court already upheld in the Homer case last term, or in anticipation of the carbon rule for power plants,” she said, referring to a case decided last year that upheld the EPA’s regulation on air pollution that crosses state lines.
The ruling also could help the EPA defend its carbon limits in court.
Opponents of the rule, including energy companies, utilities and some states, say the Clean Air Act prohibits the EPA from regulating power plants’ carbon output if other pollution from the plants is also regulated under another section of the law.
While the EPA and its allies disagree, striking down the MATS rule largely neutralizes the problem.
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SCOTUS Snaps EPA Winning Streak
Jun 29, 2015 | The Hill - E2 Wire
By Devin Henry
The Supreme Court’s rejection of an Environmental Protection Agency (EPA) air quality regulation on Monday ends the agency’s recent winning streak at the federal courts.
The D.C. Circuit Court of Appeals upheld the EPA’s carbon monoxide regulations under the National Ambient Air Quality Standards on April 11, 2014. Four days later, it ruled in favor of the Mercury and Air Toxics Standards (MATS) — the same rule the Supreme Court struck down on Monday.
Since then, the EPA won all seven of the federal cases it was party to until the Supreme Court's MATS decision.
Last June, the Supreme Court affirmed the EPA’s power to regulate greenhouse gas emissions that cross state lines. Justices later declined to hear two states' challenges to the agency’s regional haze plan.
The D.C. Circuit, meanwhile, has issued a string of opinions upholding a slate of EPA clean air regulations, from emissions standards for fine particles, nitrogen oxides and sulfur oxides, to its 2013 rule for gasoline refiners under the federal ethanol mandate.
The Supreme Court ended that streak on Monday when it issued a 5-4 ruling against the mercury regulations. Justices said the EPA should have considered the cost for utilities and others to comply with new mercury regulations before deciding to write them.
During an appearance on HBO’s “Real Time with Bill Maher” over the weekend, EPA Administrator Gina McCarthy said she expected the court to affirm the mercury rule “because we did a great job on it.” Before the Supreme Court heard oral arguments on the rule in March, green groups said they were confident the agency’s winning streak would continue.
In a statement after the Supreme Court’s decision, an EPA spokeswoman cast the ruling as a narrow one focused only on cost considerations and not the agency's broader rule-making authority.
“EPA remains committed to ensuring that appropriate standards are in place to protect the public from the significant amount of toxic emissions from coal and oil-fired electric utilities and continue reducing the toxic pollution from these facilities,” spokeswoman Melissa Harrison said.
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Supreme Court Deals Blow to Obama’s Green Agenda
Jun 29, 2015 | PoliticoPro
By Alex Guillen
The Supreme Court dealt President Barack Obama’s environmental agenda a major setback on Monday, ruling that the Environmental Protection Agency had erred in writing its 2012 limits on mercury pollution from power plants.
The decision could also alter the administration’s strategy for rolling out an even grander environmental initiative — EPA’s first-ever regulations on power plants’ greenhouse gas emissions, which had been expected later this summer. Monday’s ruling capped a session that delivered mixed signals regarding how the court will judge the inevitable challenge to that landmark climate rule.
Even standing alone, Monday’s ruling on EPA’s Mercury and Air Toxics Standard, one of the administration’s major green initiatives, comes as a blow to the agency, which was confident it was on solid legal ground after an unequivocal appellate court win in 2014.
EPA said in a statement it was “disappointed” the court did not uphold the rule, but it was still committed to implementing the mercury controls that were now remanded to the U.S. Court of Appeals for the District of Columbia Circuit.
And agency spokeswoman Melissa Harrison noted that because “this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance.”
But congressional Republicans and other critics of EPA’s agenda appeared emboldened by Monday’s ruling as a rebuke for the administration’s broader agenda.
“Today’s decision firmly rejects the Obama administration’s circumvention of the democratic process and restores a dose of accountability to the increasingly unaccountable executive branch,” House Majority Leader Kevin McCarthy (R-Calif.) said in a statement. He added that the decision “vindicates the House’s legislative actions to rein in bureaucratic overreach and institute some common sense in rule-making.”
The ruling, which greens had hoped would bolster the legal case for Obama’s upcoming climate change rules, saps some of the president’s momentum after last week’s crucial rulings supporting Obamacare and gay marriage.
The 5-4 decision, written by Justice Antonin Scalia, said EPA had erred in not considering costs earlier before deciding whether to write the rule. Although EPA ultimately did calculate the costs at nearly $10 billion a year, it determined the public health benefits far outweighed them, putting the figure at $37 billion to $90 billion in 2016 alone. But the court wasn’t willing to give the agency enough latitude to keep the rule in place.
Scalia said EPA’s thinking was akin to a consumer not considering all costs associated with purchasing a high-end sports car.
“By EPA’s logic, someone could decide whether it is ‘appropriate’ to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system,” Scalia wrote.
Justice Elena Kagan called Scalia’s comparison “witty but wholly inapt.”
A more fitting analogy, she wrote in a dissenting opinion with the court’s three other liberal justices, “might be to a car owner who decides without first checking prices that it is ‘appropriate and necessary’ to replace her worn-out brake-pads, aware from prior experience that she has ample time to comparison shop and bring that purchase within her budget.”
Facing that serious hazard, Kagan wrote, and with an “available remedy, EPA moved forward like that sensible car owner, with a promise that it would, and well-grounded confidence that it could, take costs into account down the line.”
The mercury ruling comes after last week’s Obamacare decision that established a new test for the court to use before deferring to an agency’s interpretation of the law. Some experts had suggested that the new test would lead the court to uphold the soon-to-be-finished EPA climate rule, following its precedent that greenhouse gases are subject to the Clean Air Act.
Instead, Monday’s decision indicates a court skeptical of EPA’s aggressive regulatory agenda, throwing into question how the court will react to the virtually unprecedented climate plan.
The mercury rule, focused on improving public health by limiting emissions of toxins like mercury, arsenic and hydrochloric gas from coal- and oil-fired power plants, has already had a big real-word impact — it’s been responsible for shuttering dozens of older coal-fired power plants whose owners decided it was too costly to meet the new requirements. That, in turn, gave a boost to the administration’s climate change efforts.
And EPA said it was not concerned that the remand of the mercury rule to the lower court will jeopardize its upcoming carbon dioxide rule for power plants.
“Cost is among the factors the agency has long explicitly considered in setting standards,” under the Clean Air section used as the basis for the upcoming climate change rule, EPA’s Harrison said.
But Scalia’s opinion also showed the majority is skeptical about EPA’s cost-benefit analysis, questioning whether EPA should have written the rule at all.
He cites EPA’s finding that the rule would bring as little as $4 million to $6 million in direct benefits annually while costing $9.6 billion.
“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Scalia wrote.
That range cited Scalia was a low-ball estimate of the rule’s benefits that applies only to the mercury-related benefits, EPA had argued. The agency placed the health benefits in the tens of billions of dollars per year by including so-called co-benefits that come from reductions in other pollutants included in the rule, such as particulate matter.
Whether EPA can consider such co-benefits in its initial analysis remains up in the air. Scalia directly declined to address whether EPA can consider ancillary benefits because the agency “plainly did not do so here.”
Kagan wrote that the majority’s ruling is a “peculiarly blinkered” way to gauge EPA’s mercury rule, and that she would have agreed with Scalia if the benefits had in fact been lower than the economic costs — except she does not believe that happened with the mercury rule.
“The Agency acted well within its authority in declining to consider costs at the opening bell of the regulatory process given that it would do so in every round thereafter — and given that the emissions limits finally issued would depend crucially on those accountings,” Kagan wrote.
Monday’s ruling, Kagan concluded, “deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives.”
Josh Gerstein and Eric Wolff contributed to this report.
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Supreme Court Upends EPA Rules for Mercury Emissions
Jun 29, 2015 | The Hill - E2 Wire
By Jeremy P. Jacobs
The Supreme Court today ruled that U.S. EPA should have considered compliance costs before issuing its landmark limits for mercury and other hazardous air pollutants from power plants.
Twenty-one Republican-led states, as well as utility and industry groups, challenged EPA's 2011 Mercury and Air Toxics Standards, or MATS.
They argued that EPA should have considered future compliance costs in determining whether it was "appropriate and necessary" to move forward with promulgating the regulations.
EPA estimated the rules would cost the coal power sector $9.6 billion per year.
The agency argued the "appropriate and necessary" finding was a threshold determination that the Clean Air Act mandated be solely based on environmental and public health risks.
MATS has already gone into effect, and EPA estimated it would prevent 11,000 premature deaths and yield between $37 billion and $90 billion in health benefits. In particular, EPA said the standards would protect vulnerable populations such as pregnant women from potent neurotoxins like mercury and lead.
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High Court Remands Utility MACT Over EPA's Failure To Review Costs
Jun 29, 2015 | InsideEPA
The Supreme Court in a 5-4 decision has remanded EPA's maximum achievable control technology (MACT) air toxics rule for power plants to the lower courts after finding the agency erred when it failed to consider costs in its findings that the rule was “appropriate and necessary.”
The majority opinion, written by Justice Antonin Scalia, rejects the agency's arguments that it did not need to consider costs in the appropriate and necessary determination because the Clean Air Act was silent on whether a cost review needed to be part of that decision.
EPA said it assessed costs when it set the actual MACT standards later on, but industry groups and several states sued claiming that costs should have been reviewed at the start.
Scalia agrees, writing, “Read naturally in the present context, the phrase 'appropriate and necessary' requires at least some attention to cost. One would not say that it is even rational, never mind 'appropriate,' to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”
Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Clarence Thomas signed on to the majority, with Thomas also writing a concurring opinion that faults EPA's arguments -- and says the case underscores the limits that courts should place on agencies' “Chevron” deference to interpret statutes.
“These cases bring into bold relief the scope of the potentially unconstitutional delegations we have come to countenance in the name of Chevron deference. . . . Although we hold today that EPA exceeded even the extremely permissive limits on agency power set by our precedents, we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here,” Thomas wrote.
Justice Elena Kagan wrote the dissent, joined by Justices Ruth Bader Ginsberg, Stephen Breyer and Sonia Sotomayor. The dissent notes that EPA assessed costs when it set the MACT standards, saying the majority “insists that EPA must consider costs -- when EPA did just that, over and over and over again.”
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Congress Takes a Break, Tees Up Bills to Cripple Clean Power Plan
Jun 29, 2015 | E&E - Energywire
By Emily Holden and Rod Kuckro
Congress has left town for the Independence Day recess after the House last week easily passed legislation to thwart U.S. EPA's proposed Clean Power Plan.
The bill, from Kentucky Republican Rep. Ed Whitfield, would let states opt out of the carbon emissions requirements for power plants.
In the Senate, similar legislation from West Virginia Republican Shelley Moore Capito faces an uphill battle. Capito's measure will have to compete with spending bills for floor time after the August recess, and it would need to obtain 60 votes for passage.
Opponents are also considering challenging the rule with the Congressional Review Act or through riders to appropriations bills.
But Greenwire's Jean Chemnick says legislative attacks on the Clean Power Plan have little hope of advancing, with President Obama ready to veto any legislation that undermines the EPA rule.
Chemnick tells E&ETV that the White House will "really go to the mattresses" over the rule, which will be finalized later this summer.
Late Friday, the Eastern Interconnection States Planning Council (EISPC) and the National Association of Regulatory Utility Commissioners (NARUC) released its final roadmap for multistate compliance options for EPA's Clean Power Plan.
The resources include a sample memorandum of understanding for multistate coordination and a checklist of legislative language examples that states can use.
NARUC plans a meeting this fall among state commissions, consumer advocates, air agencies, and energy offices to see whether the multistate tools developed by various stakeholder groups fit together and how.
The EISPC/NARUC document is the latest addition to the E&E Power Plan Toolbox.
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Will Tension Between Lawmakers and Regulators Hamstring the Clean Power Plan?
Jun 29, 2015 | E&E - Climatewire
By Emily Holden
Faced with whittled-down budgets and a growing pile of federal mandates, state lawmakers and energy and environment regulators grappling with immense industry changes don't always get along.
Feuds between the groups have always waxed and waned, flaring up as new technologies or environmental standards emerge and spur political backlash.
But U.S. EPA's rule to reduce carbon dioxide emissions from the power sector stands to exacerbate that friction in many states.
With so many cooks in the kitchen, the process of responding to the regulation could easily get messy.
"Personally, I support the outcomes of the Clean Power Plan," said Jeff Morris, a Democratic member of the Washington House of Representatives. "But the construct's horrible."
That's why "smart governors are bringing everybody to the table," said Morris, also a member of the National Conference of State Legislatures' Executive Committee.
The Clean Power Plan sets individual emissions rates for each state and tasks air officials with writing sweeping compliance plans that could determine the future of coal, natural gas and renewable energy.
In most states, air officials will be sharing turf with the electric regulators that will eventually have to sign off on program costs and legislators who are hesitant to stand by and watch others chart out the state's energy path.
Even before the Clean Power Plan, many regulators said lawmakers didn't consult them or give them enough guidance or funding to do their jobs. Now, there are also concerns that elected officials may limit options for keeping electricity costs down in an attempt to retain control over how to react to the rule.
"I'm not sure how to get through to them," said T.W. Patch, a member of the Regulatory Commission of Alaska, about long-standing tensions with legislators. "But more often than not, I think I've failed."A slew of anti-EPA bills
Many state legislators -- who are vulnerable to political reactions to the rule -- feel an obligation to be involved in Clean Power Plan proposals, which could set the energy courses in their states for years to come.
In Kansas, the Legislature passed a bill requiring the state's Department of Health and Environment to consult with a legislative study committee as it works on a compliance plan, yet lawmakers stopped short of demanding an opportunity to sign off on the documents. Insiders have said that law and other similar efforts around the country were the result of a campaign by the conservative American Legislative Exchange Council.
Some legislatures have gone further, restricting plan-writing options. Governors in Texas, Indiana and Oklahoma have said their states will not write implementation proposals at all.
Tom Sloan, a Republican member of the Kansas House, says the pushback is worsened by a trend toward shrinking government, "compounded by anti-EPA feelings."
In the last election, Republicans took control of the most legislatures in a century, and they now hold a near record number of governors' seats.
"Kansas and other states essentially don't believe government should be involved in regulatory areas," he said. At the same time, "federal regulation and law trumps state regulation and law."
"So the fact that we might object to a plan that's put together by our state agency in consultation with the utilities naturally doesn't mean it's not a good plan and not going to be approved by EPA," Sloan said.
Bill Becker, executive director of the National Association of Clean Air Agencies, said some legislatures are "taking on an increasingly more intimate role in the day-to-day decisions that air pollution agencies make, especially with regard to the Clean Power Plan."
"It has serious political and technical issues that bring into play some other issues of affordability and reliability," Becker said. "It's not surprising that in some states, legislatures are insisting upon a great role in the review of some of those plans."
He respects that authority, but he worries that the wrong kind of involvement might lead to higher costs for customers.
"A state legislature that limits the ability of the state to comply is taking away any flexibility that EPA worked hard to place in the program," Becker said.
Regulators realize they will likely need to collaborate with lawmakers to get legislation in place to implement energy plans.
The National Association of Regulatory Utility Commissioners on Friday sent out final guidelines for multi-state coordination under the Clean Power Plan, including a section written by the National Conference of State Legislatures.
Released by NARUC's Eastern Interconnection States Planning Council, the documentprovides examples of legislation that could be necessary to regional approaches and a checklist of policies lawmakers might need to enact.
"The role of state legislatures in this process is critical, even though it may not be obvious," the guidelines say. "State legislatures across the nation are taking a more active role in shaping state and regional energy systems affecting energy generation, efficiency and grid infrastructure. They create the regulatory framework and enforcement authority for public utility commissions, air offices and other state agencies. Legislative action will likely be required to effectively meet Clean Power Plan requirements and to engage in multi-state compliance efforts."'They don't have all the facts'
In some states, regulators are trying to strengthen relationships with legislators on top of a turbulent history, said Patch, of the Regulatory Commission of Alaska, during a roundtable of state commissioners at a meeting in Phoenix earlier this month.
"In the iterations of utility governance, we have had three different commissions," Patch said. "Our legislature has never been ashamed to fire us all and start again."
Even when regulators and lawmakers do communicate well, tensions can rise when the legislative session ends and they head back to their districts.
"Once they are home, they are very far-flung from where we are located, which means that the conversations often end," said Idaho Public Utilities Commissioner Kristine Raper at that same meeting in Phoenix.
The legislators then comment on regulatory cases based on what constituents have said, without consulting the regulators, Raper said.
"They send it in on letterhead, and it has three or four different legislators' signatures at the bottom of it, and they never asked a question before they sent in the letter, so they don't have all the facts," she said.
Lawmakers, on the other hand, say regulators could do a better job of reaching out and educating them about what policy changes might mean to electric costs and grid reliability.
"Most legislators were flower shop owners one day or firemen, and the next day they're trying to decide interconnection standards for the smart grid or something," Morris explains. The National Conference of State Legislatures is trying to address that problem with energy policy immersion courses for newly elected officials, he said.Squeezing air agency budgets
Complicating matters, regulatory work is becoming increasingly politicized, and so is regulatory agency funding.
Under the Clean Air Act, the federal government can give state air agencies up to 60 percent of the money needed to implement federal regulations like the Clean Power Plan.
Becker said states have been receiving closer to 25 percent.
Republicans in Congress have denied the White House's attempts to increase the funding, and state legislators who oppose the Obama administration's climate actions are loath to continue to pay to implement the programs, Becker said.
"For some people, this is religion ... notwithstanding the science," Becker said. "Top political leaders have been terribly critical of this program and strongly advocating states stand down and ignore the law. Other state bodies can't help but hear that."
And after years of slow economic recovery, many states are facing huge budget gaps at a time when electric regulators are seeking money to hire experienced staff to oversee an increasingly complex industry. Commissions get most of their funding from fees on the industry, which must be approved by the legislature. About one-fifth of electric regulators are elected, rather than appointed by the governor, but they are still affected by lawmakers' decisions.
In Washington, utility commission staff are on the same civil service pay schedule as park personnel and prison guards, Morris said.
An attorney with any experience with utility regulation could easily make $140,000 per year as an associate at a major law firm, Morris said, but regulatory positions in Washington top out at $100,000.
"We regularly lose people even to public power agencies because they can pay so much more than we can," Morris said.
In a meeting earlier this month on a complicated solar energy bill, there were about 70 lobbyists in the room and just one electric regulator, he said. "They just can't cover that many different special-interest groups contacting legislators."A bright spot?
In Montana, the Legislature has over several years enacted a 6 percent across-the-board spending reduction through staff vacancies, including at the Public Service Commission.
"Our argument to the Legislature was not that we wanted to grow our staff but simply maintain the 35 [full-time employees] that we had had since before 1997 -- maintain that level of staffing so we could maintain the level of service and functionality that we had been providing," said Commissioner Brad Johnson, who is also running for governor.
Johnson joked that he told the speaker of the Montana House of Representatives that although the state constitution requires the Legislature to meet 90 days every two years, "two days every 90 years would be beneficial to the people of Montana." It's routine for power regulators to kid that they would be better off if the politicians just went home.
Johnson admitted that "the relationship between our commission and the Legislature really is a two-way street" and "the commission is not without at least some indirect blame." He said the Montana PSC is working on a broad strategic plan that will address ways to be more proactive with lawmakers.
Of course, the story isn't the same in all 50 states.
New York is getting an early look at what it is like to implement broad changes to the energy world. The governor's office and regulators are overhauling energy efficiency and renewable energy programs in the Reforming the Energy Vision, or REV, process. Assembly Energy Committee Chairwoman Amy Paulin, a Democrat, said the Public Service Commission has kept lawmakers informed about the process.
"I do feel included," Paulin said. "Because I'm a legislator, I'm not an energy expert. As far as detail to the plan, I'm not sure that I even would have specific suggestions." Republican lawmakers in New York have not necessarily felt the same and have urged regulators to consider the cost impacts of the plan.
In Ohio, legislators agreed not to intervene with state compliance options for the Clean Power Plan, at least until after EPA issues a final rule.
And Becker says that while times might be tough between regulators and lawmakers, there is one bright spot. Air and electric regulators are interacting more and getting along better than ever because of coordinating efforts by national organizations and because they realize they "owe it to the citizens to do this in a cost-effective and fair way," he said.
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White House: High Court Decision Shouldn't Impact Greenhouse Gas Rule
Jun 29, 2015 | PoliticoPro - Whiteboard
By Darren Goode
The White House is doubling down on EPA’s determination to complete its greenhouse gas controls for power plants despite today’s Supreme Court rejection of a separate rule on mercury and air toxics.
“These are two separate rulemaking processes that we have pursued here and there is nothing contained in this ruling that should in any way impact our ability to successfully implement the Clean Power Plan,” White House spokesman Josh Earnest told reporters. -
Justices Topple EPA Mercury Regs in Ruling Seen as Limited
Jun 29, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
The Supreme Court ruled today that the Obama administration unlawfully failed to consider compliance costs before it issued its landmark power plant emission limits for mercury and other hazardous pollutants.
More than 20 Republican-led states and various industry groups challenged U.S. EPA's Mercury and Air Toxics Standards, or MATS.
The rules were finalized in December 2011 and are already in effect, requiring coal-burning power plants to reduce emissions of hazardous substances like mercury, lead and arsenic by installing control technologies or retiring plants.
Challengers contended that EPA should have considered the rule's $9.6 billion in annual compliance costs when it determining it was "appropriate and necessary" as a threshold matter to move forward with the regulations. MATS is among the most expensive regulations ever promulgated by the agency.
The Supreme Court's conservative wing agreed in a 5-4 vote.
Writing for the majority in the last decision of the court's term, Justice Antonin Scalia said EPA failed to act rationally in its interpretation of "appropriate and necessary."
"The agency gave cost no thought at all, because it considered cost irrelevant to its initial decision to regulate," Scalia wrote in a 15-page opinion.
"It is unreasonable," he added, "to read an instruction to an administrative agency to determine whether 'regulation is appropriate and necessary' as an invitation to ignore cost."
Coal plants are the country's largest emitters of mercury, and EPA estimated that once fully implemented, MATS would prevent 11,000 premature deaths and yield between $37 billion and $90 billion in health benefits, including protecting particularly vulnerable populations like pregnant women.
The rule's challengers contested EPA's calculation of the rule's health benefits, arguing that the regulation's direct benefits were between $4 million and $6 million.
Scalia addressed the 1984 seminal Supreme Court decision in Chevron v. Natural Resources Defense Council, which held that a court must defer to an agency's interpretation of ambiguous statutory language if it is reasonable.
With the mercury rule, Scalia said EPA "strayed far beyond those bounds when it read" the law "to mean that it could ignore cost when deciding whether to regulate power plants."
Justice Elena Kagan, joined by three other justices in the court's traditionally liberal wing, dissented.
She wrote that the majority faults EPA because it did not explicitly consider costs at the "very first stage" of the regulatory process.
"And that is so even though EPA later took costs into account again and again and ... so on," Kagan wrote in a 25-page dissent. "The majority thinks entirely immaterial, and so entirely ignore, all the subsequent times and ways EPA considered costs in deciding what any regulation would look like."
Further, she said that under Chevron, the question of whether EPA reasonably interpreted the law "nearly answers itself."
"The central flaw of the majority opinion," Kagan wrote, "is that it ignores everything but one thing EPA did."'Signal is clear'
The high court's ruling reversed an April 2014 U.S. Court of Appeals for the District of Columbia Circuit ruling that upheld the regulations in a 2-1 vote.
The rule's critics immediately welcomed the decision.
"Today's Supreme Court decision is a win for American consumers and a rebuke of EPA's callous approach to regulations," Mike Duncan, president of the American Coalition for Clean Coal Electricity, said in a statement. "We applaud the Court's commonsense decision which serves as a needed reminder that regulatory bodies must actually consider cost impacts of its regulations."
The Supreme Court did not vacate the rules; it remanded the case back to the D.C. Circuit. So, MATS will remain in effect at least until it is reconsidered at the appellate court.
EPA said in a statement that it is "reviewing the decision" but is "disappointed."
However it noted that "this rule was issued more than three years ago, investments have been made and most plants are already well on their way to making emissions reductions."
Nearly 70 percent of the coal industry is already in compliance with MATS, according to the U.S. Energy Information Administration, with other retirement decisions having already been made.
Some court watchers added that Scalia's ruling was limited in scope.
Environmentalists were concerned that the court could hold that EPA must consider costs whenever the word "appropriate" is found in the Clean Air Act, or provide hints on how it might rule on upcoming greenhouse gas standards for power plants, which are due to be finalized later this summer.
But Scalia's opinion does not appear to go that far. In several pages, the justice draws distinctions between the language authorizing the MATS program and other parts of the law, such as the one authorizing the National Ambient Air Quality Standard regime -- EPA's most robust air standard program.
"The more I think about it, the more I think this case will be of extremely limited precedential value, and be limited to the facts of this case," said Bill Snape, an attorney with the Center for Biological Diversity. "It does not appear to be a game changer at all."
EPA's critics on Capitol Hill nevertheless heralded the decision.
"The sweeping powers asserted by the EPA at issue in today's opinion could cost billions of dollars and impose unreasonably high costs on American families and businesses without making them any safer," Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said in a statement. "It is heartening to hear that the court has reined in the EPA, especially on the issue of the costs of regulation. We need balance, and I hope today's opinion will lead to it."
And even though it may have ruled narrowly, the Supreme Court has again shown itself to be an important check on EPA action, and the court sent a clear message to the agency as it moves forward with the controversial greenhouse gas rules, said Lisa Heinzerling, a Georgetown University Law Center professor and former EPA climate official.
Heinzerling added, "The signal is clear from all nine justices that unless you see a clear indication that you shouldn't consider costs, then you should consider costs."
Justin Pidot, a former Justice Department environmental attorney who is now a professor at the Sturm College of Law at the University of Denver, added that the court showed a willingness to delve into the intricacies of the Clean Air Act to rebuke the agency.
"In that sense, this is an ill omen," Pidot said. "It demonstrates a willingness for five of the justices to look at a voluminous administrative record to find reasons for the EPA's justification falters."
Click here for the opinion.
Reporter Amanda Peterka contributed.
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Green Group's Unconventional Fight Against Fracking
Jun 29, 2015 | Reuters
By Richard Valdmanis
The residents of Grant Township, Pennsylvania, were worried about Little Mahoning Creek, a picturesque trout stream best fished in the spring when the water runs fast.
The Pennsylvania General Energy Company had acquired a federal permit to drill an injection well down 7,000 feet about seven miles from the creek to dispose of wastewater from its natural gas hydraulic fracturing operations.
Fearing the operation would harm the Little Mahoning watershed, the town’s supervisors last year passed a "community bill of rights" that blocked the well, stripped the company of its right to inject wastewater underground, and declared that the state had no jurisdiction in the matter.
The ordinance, they openly acknowledged, was likely to be challenged, and defending its legality would be difficult.
Driven largely by opposition to hydraulic fracturing, commonly known as fracking, communities across the United States have passed or are considering measures to assert their right to stop projects with potential to harm local environments - even when the ventures fall squarely under state or federal jurisdiction.
Behind a number of the protests, including the one in Grant, is a little-known activist group, the Community Environmental Legal Defense Fund. In 18 communities across six states the fund has convinced towns, villages or counties to challenge state and federal authorities – and even the U.S. Constitution.
"Our belief is that these communities don't have a fracking problem, they have a democracy problem," said Thomas Linzey, the Pennsylvania-based attorney who founded the fund. "Our premise is that you can't win against the oil and gas industry using the existing legal structure, so the structure needs to be changed."
Fracking, which extracts oil or gas from rock formations by injecting a high-pressure mix of water, sand and chemicals into wells, has helped lift domestic production of natural gas by 35 percent since 2005 and oil by 45 percent since 2010. But it has also been linked to a rise in seismic activity in some places, and triggered fears about water and air pollution.
States have reacted differently to local opposition: Vermont and New York passed sweeping state-wide moratoriums on fracking over the concerns, while Texas and Oklahoma - whose economies rely heavily on the oil and gas industry - this year passed laws forbidding local fracking bans.
For Linzey, all four examples illustrate the same problem: a lack of authority for affected communities to decide their own fates.
So far, five of the communities that have adopted CELDF-written ordinances, including Grant Township, have had them challenged in court, and one decided to repeal its measure after a federal judge ruled against it. The other communities say they don’t expect to win.
The fund’s rebellious approach has drawn fire from the oil industry, legal experts and established environmental groups. And the criticism is likely to grow as cash-strapped local jurisdictions find themselves on the hook for defending ordinances in court cases they have little chance of winning.
But Linzey says his goal is not to write local laws that are popular, or stand up in court, but rather to trigger a public debate about community rights to local self-government - even if it means a community ultimately falls into financial ruin.
"If enough of these cases get in front of a judge, there is a chance we could start to have an impact within the judiciary," said Linzey. "And if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that's exactly what is needed to trigger a national movement."
CELDF has about 10 staff members spread across several of the states where it is active, and also relies on lawyers volunteering their time. The group has never won a case that went to court.
The city of Lafayette, Colorado, has already paid some $60,000 so far defending its 2013 CELDF-authored community bill of rights in court, knowing the effort is a form of legal disobedience with little hope of yielding a courtroom win.
"The idea is to push this issue into people’s consciousness," said Merrily Mazza, a council member in the city of 27,000 people.
"FLATLY UNCONSTITUTIONAL"
About 400 U.S. municipalities have sought to pass bans on fracking over the past ten years, mainly through legal moves like zoning regulations that have been easily overturned, according to Food and Water Watch, a non-profit organization.
But CELDF's strategy of explicitly flouting existing legal structures has made the group one of the fracking industry's most aggravating opponents, according to Kevin Moody, chief counsel for the Pennsylvania Independent Oil and Gas Association. He calls the fund's hard-line view of local self-government "ridiculous," but capable of delaying projects and making them more costly.
"If they want to have this debate, have it in a political arena," Moody said. "Don’t enact ordinances that are blatantly unlawful, tie up local townships, expose them to liability, and tie up companies."
Linzey's approach has also not earned him many friends among established environmental groups, big donors, or legal experts. The organization operates on a relatively small annual $800,000 budget, funded by a handful of left-leaning foundations, including the Park Foundation and the Heinz Endowments, as well as by private donors whose names it withholds.
"I appreciate their opposition to corporate power and their defense of the environment, but it is flatly unconstitutional," says Kent Greenfield, a professor of law at Boston College. He said if communities could reject constitutional rights, nothing could stop them from re-segregating schools, for example.
The Washington-based Natural Resources Defense Council said that while it shares CELDF's goal of combating fracking, it considers CELDF's style too risky for local communities enacting the ordinances.
In Mora County, New Mexico, community leaders this year voted to repeal their CELDF-authored anti-fracking ordinance after a federal court judge ruled against the county in a lawsuit brought by an oil company and landowners.
"We weren’t comfortable using our county as the test case to try to overturn two centuries of law," said Mora County Commissioner Paula Garcia.In Grant Township, residents so far have remained willing to fight. The community has spent just a few thousand dollars of its annual $250,000 budget defending its CELDF-drafted community bill of rights. But it may have to spend more.
Last August, PGE took Grant Township to court, arguing that the measure was unconstitutional and causing it financial harm by delaying a federally-permitted waste injection well.
"If PGE wants to bankrupt this township, that’s fine, that’s just the way it’s going to be," said Jon Perry, 59, one of three township supervisors. "I’m not sure that will look very impressive on their resume."
PGE did not respond to a request for comment.
(Reporting by Richard Valdmanis; Editing by Bruce Wallace and Sue Horton)
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States Sue to Block Obama's Water Rule
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
Texas, Louisiana and Mississippi sued the Obama administration Monday to stop a new regulation asserting federal authority over minor waterways like streams and wetlands.
The rule from the Environmental Protection Agency (EPA) is one of the most controversial regulations from the Obama administration, redefining how the EPA enforces the water pollution protections of the Clean Water Act.
In the lawsuit, filed in a Houston-based federal court, the states argue that the rule “is an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners.”
The states’ attorneys general — all Republican — said the “waters of the United States” rule violates the clear language of the Clean Water Act that drew a line between federal authority and that of states or private landowners over waterways.
“Whereas Congress defined the limits of its commerce power through the Clean Water Act to protect the quality of American waters, the Environmental Protection Agency and Army Corps of Engineers, through the Final Rule, are attempting to expand their authority to regulate water and land use by the states and their citizens,” they wrote.
The case appears to be the first lawsuit against the rule, though it’s unlikely to be the last. Apart from many states, farmers, developers, business groups and others oppose rule, which they said could give the EPA power over almost any piece of land.
The administration wrote the rule and made it final last month in an attempt to clarify its jurisdiction after two Supreme Court cases made it murky. While about 3 percent more area is now covered by the Clean Water Act than before, the protections are still smaller than they were during President Bill Clinton’s administration.
The Clean Water Act gives federal officials jurisdiction over “navigable” water, but they also must regulate a certain distance upstream to protect the main waterways.
If a waterway is under federal jurisdiction, landowners might need permits for anything that harms or pollutes it.
“We’re finalizing a clean water rule to protect the streams and the wetlands that one in three Americans rely on for drinking water,” EPA Administrator Gina McCarthy said when rolling out the rule. “And we’re doing that without creating any new permitting requirements and maintaining all previous exemptions and exclusions.”
Brian Deese, a top adviser to President Obama, said “the only people with reason to oppose the rule are polluters who want to threaten our clean water.”
The agency made a point when it unveiled the rule to explain what is not covered, including standard agricultural practices and isolated ponds.
The House has voted to overturn the rule, and the Senate Environment and Public Works Committee has passed a bill to overturn it while giving the EPA specific instructions to re-write it.
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(ACC Mentioned) Senate Approves Bill To Reform Rail Policy
Jun 29, 2015 | Chemical & Engineering News
By Glenn Hess
...The bill would streamline STB’s “overly burdensome rate review process” and allow the board to be more proactive in resolving freight rail issues, says Calvin M. Dooley, chief executive officer of the American Chemistry Council , a chemical trade association...
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Story can be found at: http://cen.acs.org/articles/93/i26/Senate-Approves-Bill-Reform-Rail.html
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