Preview Newsletter
ACC AM June 30
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(ACC Mentioned) U.S. Chemical Output Edges Down in May on Broad Declines
Jun 29, 2015 | Zacks
U.S. chemical output fell slightly in May with lower production witnessed across all chemical producing regions – according to the latest monthly report from the American Chemistry Council ("ACC"). The Washington, DC-based chemical industry trade group said that the U.S. Chemical Production Regional Index ("CPRI") edged down 0.2% for... -
(ACC Mentioned) Who You Calling A Dirty MRF?
Jun 29, 2015 | Plastics News
By Jim Johnson
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(ACC Mentioned) TSCA Reform Bill Gets Strong Support
Jun 29, 2015 | Speciality Chemicals Magazine
Both the American Chemistry Council (ACC) and the Society of Chemical Manufacturers & Affiliates (SOCMA) have welcomed the passing of the TSCA Modernization Act of 2015 (HR 2576) in the US House of Representatives on 23 June. The bill, which was approved in a 398-1 vote, is widely seen as the most promising move yet to overhaul... -
(ACC Mentioned) A Look Inside Boston's New 'Expired' Food Supermarket
Jun 29, 2015 | Good Morning America (in Perishable News)
By Stephanie Tuder
We’ve all been in this confusing scenario: your milk in the fridge expires the day you want to use it. But is that its sell-by date? Best by? Use by? What does that expiration date really even mean? All the confusion is one of the factors leading Americans to throw away about $640 worth of food every year, according to a survey out Wednesday... -
(ACC Mentioned) Michael Young : Boca Man Hopes Worm Compost Startup Will Help Reduce Waste
Jun 29, 2015 | WPTV West Palm
By Jason Hackett
You can call Michael Young a hero on two fronts. When he's not saving lives as a fireman in Boca - he's helping to save the planet. It's all because of a bin of creepy crawlers in his front yard. It's called 'vermicomposting' - composting with worms - and Mike has built an entire start up company around it called 'Jolly Green FL'. -
White House Praises TSCA Push But Questions Industry Chemical Reviews
Jun 29, 2015 | InsideEPA
By Bridget DiCosmo
The White House is praising Congress' bipartisan push to advance Toxic Substances Control Act (TSCA) reform bills and hopes to see “strong” final legislation that President Obama can sign, but the administration is questioning a House plan for industry to request chemical safety reviews that could overtake EPA's review priorities. -
California Releases BPA Toxicity Meeting Materials
Jun 30, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (OEHHA) has released the synopsis and slide presentations from the Developmental and Reproductive Toxicant Identification Committee (DART-IC) meeting in which they voted 7-0 that bisphenol A (BPA) was known to the state to be a reproductive toxicant (CW 12 May 2015). -
Comparing the Senate and House TSCA reform legislation: A side-by-side
Jun 29, 2015 | Environmental Defense Fund
By Richard Denison
Last week, the House of Representatives passed the TSCA Modernization Act of 2015 (H.R. 2576), its bill to reform the Toxic Substances Control Act (TSCA). The Senate is poised to consider its own bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), within the next few weeks. -
Restricted Flame Retardant Causes Cancer In Rats, Mice, NTP Peer Reviewers Conclude
Jun 30, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A once widely used but now partially prohibited flame retardant shows clear evidence of causing certain cancers in laboratory rats and mice, according to a scientific panel advising the National Toxicology Program. A mixture of polybrominated diphenyl ethers (PBDEs) that once was commonly used to slow fires in mattresses and ... -
EPA to Publish Final Ferroalloy Production Standards
Jun 30, 2015 | BNA Daily Environment Report
The Environmental Protection Agency set the first emissions standards for formaldehyde, hydrogen chloride, mercury and polycyclic aromatic hydrocarbons from ferroalloys production facilities in a final rule to be published in the Federal Register June 30. The rule (RIN 2060–AQ11) completes the residual risk and technology review of the national... -
EPA Set To Update Toxic Standards For Steelmaking
Jun 29, 2015 | E&E News PM
By Amanda Peterka
U.S. EPA will finalize the first update tomorrow to 1999 toxic air pollution standards for a key process in steelmaking. The final rule, scheduled for publication in tomorrow's Federal Register, applies to the production of ferroalloys, or iron compounds with added elements such as silicon, manganese and chromium. They reduce corrosion in finished ... -
(ACC Mentioned) Chemical Safety Board Down to Two Members, Still at Odds
Jun 29, 2015 | Government Executive
By Charles S. Clark
With the Senate out of town and no chance for quick confirmation of a chairman, the Chemical Safety Board is ending a drama-filled month of June with just two of its complement of five members, two key officials on administrative leave for alleged misconduct and one pending lawsuit. Yet Interim Chairman Rick Engler managed—on June 24, the... -
A Grand Tale Of Intrigue In A Very Small Palace
Jun 30, 2015 | The Washington Post
By Lisa Rein
The board responsible for investigating chemical accidents had one of the most toxic work environments in the government, earning the unhappy distinction last year of worst place to work among small agencies. President Obama forced out the Chemical Safety Board chairman in March under bipartisan pressure from Congress... -
New York State Officially Bans Fracking Following Years of Litigation, Research
Jun 30, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
New York officially banned the natural gas drilling practice known as fracking June 29, after years of litigation, regulation, study and some 260,000 public comments. The move came in a long-awaited “findings statement” issued by the Department of Environmental Conservation under the State Environmental Quality Review Act. -
New York Makes Fracking Ban Official
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
New York state regulators put the finishing touches Monday on the state’s highly controversial ban on hydraulic fracturing. The administration of Gov. Andrew Cuomo (D) filed its 43-page findings statement for the ban Monday, saying fracking is too harmful to the environment and public health to be allowed. -
Pennsylvania Governor and Fracking Sector Face Off on Budget, Regulations
Jun 29, 2015 | The Wall Street Journal
By Kris Maher
Since taking over from a Republican administration this year, Democratic Pennsylvania Gov. Tom Wolf repeatedly has said he supports the state’s booming shale gas industry. But lately, the industry is questioning his commitment. State regulators, who have begun reviewing dozens of environmental cases the previous administration handled... -
Complaint Seeks BIS Disclosure Of Documents on Oil Export Ban Decisions
Jun 30, 2015 | BNA Daily Environment Report
By Rossella Brevetti
The Commerce Department's Bureau of Industry and Security could be forced to release information on decisions it made in administering the oil export ban if a recent Freedom of Information Act (FOIA) suit is successful (Sightline Inst. v. U.S. Bureau of Indus. & Sec., W.D. Wash., No. 2:15-cv-01021, complaint filed, 6/25/15). -
Senate Democrats Lay Out Priorities For Legislative Package
Jun 29, 2015 | E&E News PM
By Daniel Bush
As the debate over a broad energy package intensifies on Capitol Hill, Senate Democrats today rolled out a sweeping list of energy policy priorities focused on curbing carbon emissions and investing in renewable technology. In a letter soliciting input on energy policy from governors, the Democrats called for a national energy policy... -
Clean Power Plan Implications Unclear After Supreme Court Denies Agency Deference
Jun 30, 2015 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court once again cautioned the Environmental Protection Agency against an overly broad reading of its Clean Air Act authorities, but the implications for the agency's Clean Power Plan are unclear, attorneys said. Congressional Republicans seized on the Supreme Court's decision remanding the EPA's toxic pollutant... -
Congress Takes A Break, Tees Up Bills To Cripple Clean Power Plan
Jun 29, 2015 | E&E News PM
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. -
Supreme Court Remands EPA Mercury Rule For Failing to Consider Cost to Power Plants
Jun 30, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency was required to consider the cost of compliance when deciding whether it was “appropriate and necessary” to regulate emissions of mercury and other air toxics from power plants, the U.S. Supreme Court ruled June 29 (Michigan v. EPA, U.S., No. 14-46, 6/29/15). -
Supreme Court Blocks EPA Limits On Power Plant Mercury Emissions
Jun 29, 2015 | Chemical & Engineering News
By Glenn Hess
In a 5-4 decision, the Supreme Court on Monday struck down the Environmental Protection Agency’s first-ever national standards for limiting emissions of mercury and other toxic air pollution from coal- and oil-fired power plants. The Court ruled that EPA erred by not taking into account the costs placed on the electric utility industry... -
Mercury Ruling Boosts 'Just Say No' Strategy -- GOP Lawmakers
Jun 29, 2015 | E&E News PM
By Jean Chemnick
Capitol Hill foes of U.S. EPA's Clean Power Plan have already seized on the Supreme Court's decision today to remand the agency's mercury and air toxics rule back to a lower court as a vindication of their advice to states to "just say no" to the carbon rule. Compliance with the 2011 toxics rule for power plants... -
Apple, Tech Companies Developing ‘Green' Internet With Clean Power Plan in Mind
Jun 30, 2015 | BNA Daily Environment Report
By Joseph A. Kuehne
With the Environmental Protection Agency due to release the final version of its Clean Power Plan sometime in August, companies nationwide are exploring renewable energy as one possible component in their plans to meet the limits that rule would set, and tech companies are leading the way. -
Court Ruling Ups The Bar On Cost-Benefit Projections
Jun 29, 2015 | PoliticoPro
By Eric Wolff
EPA may have a harder time justifying its sweeping air and climate change rules after Monday’s decision in which Justice Antonin Scalia rejected the agency’s bid to limit power plants’ toxic air pollution. Scalia rejected EPA’s argument that economic effects were irrelevant to its decision to impose the Mercury and Air Toxics Standard... -
White House 'disappointed' With Ruling Against EPA
Jun 29, 2015 | The Hill - E2 Wire
By Jordan Fabian
The White House on voiced its disappointment Monday over a Supreme Court ruling against the Obama administration’s landmark air pollution rule. “Obviously we’re disappointed in the outcome,” press secretary Josh Earnest said, adding that the administration is still reviewing the decision. In a 5-4 ruling, the high court decided ... -
Court Emboldens GOP On Climate Regs
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
The Supreme Court emboldened opponents of the Obama administration’s environmental agenda Monday with its ruling against a major air pollution rule. Republicans and others who have railed relentlessly against the Environmental Protection Agency (EPA) in recent years are touting the decision as a validation of their... -
Senate Democratic Caucus Lays Out Energy Policy Goals, Seeks Governors' Input
Jun 30, 2015 | BNA Daily Environment Report
By Ari Natter
Clean-energy investment and increased physical and cyber security are among the energy goals of the Democratic caucus, all 44 Senate Democrats wrote in a letter June 29 to the nation's governors. “We believe it is time for the U.S. Senate to consider the first update to our nation's energy policies in almost a... -
Electricity Generation Shifts From Coal To Gas, Wind, Solar Power, GAO Finds
Jun 30, 2015 | BNA Daily Environment Report
By Rebecca Kern
Natural gas, wind and solar power provided a growing share of the country's electricity generation, while the share of coal and nuclear power generation declined from 2001 to 2013, a Government Accountability Office report found. The retirement of more coal-fueled power plants in the past decade has contributed to the decline of coal-powered... -
Supreme Court’s Ruling Comes Too Late For Coal
Jun 29, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama’s opponents won a Supreme Court skirmish in the “war on coal” Monday, but the ruling blocking his mercury pollution rule won’t do anything to reverse coal’s waning role in the nation’s power supply. And on top of that, legal experts don’t expect the decision to hamper the administration’s plans for landmark climate... -
A Great Day For Coal? Not Exactly.
Jun 29, 2015 | Politico
By Michael Grunwald
It won’t get as much attention as today's perplexing Supreme Court decision blocking mercury limits for coal-fired power plants, but the government quietly revealed last Thursday that the U.S. electricity sector has reached a major milestone. Coal, America’s number-one source of power since the feds began keeping track in 1949, fell to number... -
Greens Want EPA To Save Air Pollution Rule
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
Environmental groups are pushing the Obama administration to revive the power plant air pollution regulations the Supreme Court overturned on Monday. Greens said the court’s 5-4 ruling requires the Environmental Protection Agency (EPA) to merely file paperwork to formally consider the costs of regulating mercury, arsenic, acid gases... -
Supreme Court Ruling Prolongs Uncertainty Over Fate Of EPA Utility MACT
Jun 29, 2015 | InsideEPA
By Anthony Lacey
The Supreme Court's 5-4 ruling faulting EPA for not considering costs when it first decided to craft a maximum achievable control technology (MACT) air toxics rule for utilities prolongs uncertainty over the eventual fate of the rule, as an appellate court will now have to weigh whether to vacate the regulation or remand it to the agency. -
Greens Urge Quick EPA Reaction To Mats Rejection
Jun 29, 2015 | PoliticoPro - Afternoon Energy
By Darren Goode
“Unfortunately the long road to regulating mercury will continue,” Sen. Ed Markey said. “It is dangerous toxic pollutant, and I urge the EPA to immediately reevaluate the rule to protect the health of Americans, especially our children.” Indeed, one of the questions will be how quickly can EPA can address the court’s concerns, and whether... -
Implementing Jurisdiction Rule Will Fall On States Due to House Rider, Attorneys Say
Jun 30, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Implementing the newly published Clean Water Act jurisdiction rule will fall to the states if Congress succeeds in blocking the Environmental Protection Agency from using federal funds to “implement, administer and enforce” it, water attorneys tracking the rulemaking told Bloomberg BNA. -
At Least 18 States File Challenges, Saying Clean Water Rule Exceeds Legal Authority
Jun 30, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
A final rule clarifying the scope of Clean Water Act jurisdiction was challenged by at least 18 states upon its publication in the Federal Register June 29 Texas v. EPA, S.D. Tex., No. 15-00162, complaint, 6/29/15;Ohio v. EPA, S.D. Ohio, No. 15-02467, complaint, 6/29/15; Montana v. EPA, D.N.D., No. 15-00059, 6/29/15). -
Lawsuits Pour In As Ink Dries On Obama Rule
Jun 29, 2015 | E&E News PM
By Annie Snider
At least 17 states have joined lawsuits filed today against the Obama administration, aiming to block a controversial new water rule that would expand the number of streams and wetlands that receive automatic protection under the Clean Water Act. The Waters of the U.S. rule was officially finalized today when it ran... -
Senate Appropriators Won’t Fund DOT’s Interagency Oil Trains Response
Jun 29, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
The Senate’s 2016 transportation spending bill contains no money for the DOT’s multimodal effort to respond to crude-by-rail accidents, instead choosing to fund efforts through individual agencies. The administration had requested $5 million for a new Safe Transportation of Energy Products program, to be housed within the secretary’s... -
Illinois Groups File Crude-by-Rail Lawsuit
Jun 30, 2015 | BNA Daily Environment Report
Two Illinois communities have re-filed their lawsuit over the Transportation Department's crude-by-rail rule, this time in the U.S. Court of Appeals for the District of Columbia Circuit (Vill. of Barrington v. United States, D.C. Cir., No. 15-01182, 6/24/15). The village of Barrington and city of Aurora filed their suit June 24 in the D.C. Circuit.
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(ACC Mentioned) U.S. Chemical Output Edges Down in May on Broad Declines
Jun 29, 2015 | Zacks
U.S. chemical output fell slightly in May with lower production witnessed across all chemical producing regions – according to the latest monthly report from the American Chemistry Council ("ACC").
The Washington, DC-based chemical industry trade group said that the U.S. Chemical Production Regional Index ("CPRI") edged down 0.2% for the reported month following flat growth a month ago and a 0.1% rise in Mar 2015. The U.S. CPRI, which is measured using a three-month moving average, was created by Moore Economics to track chemical production in seven regions nationwide. It is comparable to the Federal Reserve’s industrial production index for chemicals.
Per the ACC, activity for the U.S. manufacturing sector – the largest consumer of chemical products – was flat in May after declining in the previous two months. The sector is a major driver for the chemical industry which touches around 96% of manufactured goods.
U.S. factory activity was essentially flat on a monthly comparison basis in May as a rise in employment was masked by slowdown in new business growth. A stronger dollar is putting pressure on the U.S. manufacturers as it is making American-made products costlier in other nations.
Within the manufacturing sector, production rose in several chemistry end-user markets in May including appliances, motor vehicles, aerospace, rubber products, printing and textile products.
The May reading showed a decline in chemical production across all seven regions. Production in the Gulf Coast, where key building block materials are produced, was down 0.2% on a monthly comparison basis in the reported month. Production also fell 0.2% in Mid-Atlantic and Ohio Valley. Output inched down 0.1% across West Coast, Midwest, Southeast and Northeast.
By segments, chemical production was mixed in the reported month. Gains across pesticides, chlor-alkali, other specialties and synthetic rubber were neutralized by lower production of plastic resins, organic chemicals, adhesives, fertilizers, acids, phosphates, sulfates, manufactured fibers and pharmaceuticals.
Overall chemical production moved up 4% year over year in May with all regions racking up gains.
The U.S. chemical industry, a more than $800 billion enterprise, is heavily linked to the overall condition of the nation’s economy. It has been consistently leading the U.S. economy’s business cycle due to its early position in the supply chain.
The highly cyclical industry is gradually gaining strength after being roiled by the global economic crisis. The industry’s upturn is expected to be backed by strong momentum in the light vehicles market and continued recovery in the construction space.
The ACC sees U.S. chemical production to continue to expand both this year and 2016 and expects the domestic chemical industry to eventually transcend the nation’s overall economic growth. The trade group, in its recently published outlook, said that despite the slowdown in global manufacturing and oil price volatility, chemical production is expected to pick up pace on the heels of new capital investments and capacity additions.
However, the ACC has dialed back its estimates for national chemical production for both 2015 and 2016 factoring in economic softness in the first quarter of 2015 and the impact of a stronger dollar. The ACC now envisions U.S. chemical production to rise 3.2% this year and 3% in 2016. Earlier, it expected a 3.7% growth in 2015 and 3.9% in 2016. The revised outlook is still higher than 2% growth seen in 2014.
The ACC also expects demand for chemicals to grow over the next several years on continued healing across end-use markets, the industry’s sustained competitiveness and the eventual return of global economic growth. Growth in the industry is also expected to usher in improved job prospects.
The shale gas boom and abundant supply of natural gas liquids have provided the U.S. petrochemicals producers a compelling cost advantage over their global counterparts. The ACC expects this competitiveness to drive export demand and new capital investment in the country. New capacity is expected to provide a significant boost to chemical production as these investments come on stream in the coming years.
The shale revolution has incentivized a number of chemical companies including Dow Chemical (DOW - Analyst Report), LyondellBasell Industries (LYB - Analyst Report), Eastman Chemical (EMN - Analyst Report), Celanese (CE - Analyst Report) and Westlake Chemical (WLK - Snapshot Report) to invest billions of dollars on shale gas-linked projects to take advantage of ample natural gas supplies. Such investments are expected to boost capacity and export over the next several years. -
(ACC Mentioned) Who You Calling A Dirty MRF?
Jun 29, 2015 | Plastics News
By Jim Johnson
There might yet be a widespread future for mixed waste processing, an approach to capturing recyclables whose merits have been debated for years.
Mixed waste processing, where recyclables are harvested directly from the waste stream, holds the potential to capture plastics and other recyclables that are still finding their way into the nation’s landfills, according to a new report.
The report, “The Evolution of Mixed Waste Processing Facilities, 1970-Today,” by solid waste and recycling consultants Gershman, Brickner & Bratton Inc., examines the issue.
The Plastics Division of the American Chemistry Council commissioned the report.
“The goal of diverting more materials from the waste stream to higher uses compels us to explore all options,” said Craig Cookson, director of sustainability and recycling for the Plastics Division, in a statement. “As the waste stream continues to evolve, we must consider new strategies and innovations that could help us to meet these challenges.”
While many people separate their recyclables, the report indicates that the typical municipal solid waste stream still can contain a significant amount of material that could be captured before garbage trucks head toward landfills.
New technology is making mixed waste processing “different and in many respects better” than previous facilities, according to the report’s authors. These sites were once called “dirty MRFs,” but that is now considered what the report calls a pejorative.
“Based on its roots in single-stream sortation, today’s MWP technology appears promising. The results in terms of outputs, net revenue, and reduced collection costs could be attractive for some communities. The combination of recycling with energy recovery for non-recycled materials is an excellent approach to managing post-use materials more sustainably,” according to the report’s authors.
Creating mixed waste processing facilities in conjunction with existing materials recovery facilities, or MRFs designed solely to handle recyclables, might be a way to help increase diversion rates.
“GBB finds that combined MRF and MWP systems have the potential to significantly increase both the volume and total revenue from recycling materials. The potential exists to divert 180 percent more high value metals and plastics from landfill than are diverted today,” the report states.
The consulting firm says there needs to be more research.
“Despite MWP’s positive attributes, some very important questions remain, including costs, recovery capabilities, and the potential lack of markets and value for recovered materials,” the report states.
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(ACC Mentioned) TSCA Reform Bill Gets Strong Support
Jun 29, 2015 | Speciality Chemicals Magazine
Both the American Chemistry Council (ACC) and the Society of Chemical Manufacturers & Affiliates (SOCMA) have welcomed the passing of the TSCA Modernization Act of 2015 (HR 2576) in the US House of Representatives on 23 June. The bill, which was approved in a 398-1 vote, is widely seen as the most promising move yet to overhaul the Toxic Substances Control Act (TSCA) of 1976. All agree that TSCA is seriously outdated.
“The House has sent a clear message that now is the time to update TSCA,” said ACC president Cal Dooley. “HR 2576 will build confidence in the US chemical regulatory system, protect human health and the environment, and address the commercial and competitive needs of the US chemical industry and the national economy.”
Meanwhile Bill Allmond, VP of government and public relations at SOCMA, commented: “SOCMA has long awaited significant movement in Congress to reform our nation’s chemical control law and restore public confidence in our industry … This is by far the most credible piece of legislation to reform TSCA since it was enacted in 1976.”
Both bodies urged the Senate, the upper chamber of Congress, to bring the complementary ‘Frank R. Lautenberg Chemical Safety for the 21st Century Act’, S. 697, forward swiftly, so that a fully updated version of TSCA can be signed into law by President Obama by the end of the year. A vote is now expected within a few weeks.
There is optimism about the chance of progress, given the broad bipartisan support for HR 2576 after many years of wrangling. However, the two bills do differ from each other on several points, notably in that S 697 as it stands contains provisions to override state chemical laws, something the industry greatly favours, while HR 2576 omitted them.
Broadly, HR 2576 would change controls on many existing chemicals while maintaining the rules on how new ones are approved. It would also give the EPA powers to demand safety data from manufacturers if it finds that a substance poses a risk to human health or the environment, though many environmentalists fear that allowing manufacturers to pay for these tests will mean that the most dangerous chemicals will not necessarily be the ones getting tested.
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(ACC Mentioned) A Look Inside Boston's New 'Expired' Food Supermarket
Jun 29, 2015 | Good Morning America (in Perishable News)
By Stephanie Tuder
We’ve all been in this confusing scenario: your milk in the fridge expires the day you want to use it. But is that its sell-by date? Best by? Use by? What does that expiration date really even mean?
All the confusion is one of the factors leading Americans to throw away about $640 worth of food every year, according to a survey out Wednesday from the American Chemistry Council.
Doug Rauch wants to change that number. As the former president of Trader Joe’s, he knows the ins and outs of the grocery world and just how much good food goes to waste in the current model.
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(ACC Mentioned) Michael Young : Boca Man Hopes Worm Compost Startup Will Help Reduce Waste
Jun 29, 2015 | WPTV West Palm
By Jason Hackett
You can call Michael Young a hero on two fronts.
When he's not saving lives as a fireman in Boca - he's helping to save the planet.
It's all because of a bin of creepy crawlers in his front yard.
It's called 'vermicomposting' - composting with worms - and Mike has built an entire start up company around it called 'Jolly Green FL'.
"It comes from dirt, make it dirt again, re-use it, and grow something healthy for yourself," he says.
He sells his bins in both large and small sizes.
"I call it the Wormdorf Astoria," he says, showing off the green pail. "I designed this as a compact system that people can use indoors."
No matter the size, their purpose is the same - to reduce the amount of trash we toss in our landfills.
The most recent study by the American Chemistry Council estimates each family dumps about $640 worth of food a year.
"When you think of what they're putting in there, it never breaks down, there's no oxygen," he says. "A head of lettuce 50 years from now will be a head of lettuce."
So he says instead you can take that lettuce, or that watermelon, or those egg shells, dump them in his bin, and let the red wriggler worms do the work.
"The better things you put into the worm bin, the better the soil is going to be when you take it out," Young says. "What they excrete is a complete organic compost that's really good for plants."
The end result is a fresh, full garden for him, and less waste for his family.
"The outside garbage can goes down to curb maybe every two months - that's how much we eliminated waste just in our household," he says. "If you want to make a difference in the world, this is a very simple way, right at home."
Michael sells the 'Wormdorf Astoria' for about 70 bucks each.
He says once you get it set up, it's easy to use and maintain.
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White House Praises TSCA Push But Questions Industry Chemical Reviews
Jun 29, 2015 | InsideEPA
By Bridget DiCosmo
The White House is praising Congress' bipartisan push to advance Toxic Substances Control Act (TSCA) reform bills and hopes to see “strong” final legislation that President Obama can sign, but the administration is questioning a House plan for industry to request chemical safety reviews that could overtake EPA's review priorities.
The review provision in the lower chamber's TSCA reform bill, H.R. 2576, has already prompted push-back from environmentalists. The administration's concern about the language signals that it is just one of several issues about pending TSCA reform bills that lawmakers will have to resolve to win Obama's signature.
The House approved its reform bill in a 398-1 vote on June 23, shifting focus to the pending bipartisan Senate bill, S. 697, introduced by Sens. David Vitter (R-LA) and Tom Udall (D-NM).
Though the White House has not yet issued a formal Statement of Administration Policy on either bill, in 2009 it released “principles” for what it wants to see in a TSCA reform bill. The principles included reviewing chemicals against safety standards based on “sound science” and risk-based criteria protective of human health and the environment, and that industry and EPA should assess priority chemicals in a “timely manner.”
Asked about the latest push for TSCA reform in Congress, a White House spokesman in a June 29 statement to Inside EPA says, “We are pleased with the ongoing, bipartisan efforts in the House and the Senate to reform TSCA, which seek to address the goals spelled out in the Administration’s Principles.”
However, the spokesman adds, “there are provisions in each bill that need modification to better align them with the Administration's principles; as just one example, language in the House bill that could prioritize industry-requested chemical reviews at the expense of EPA’s priorities.”
The language in H.R. 2576 would provide for two types of mandatory risk reviews: those in which EPA determines that a chemical may present an unreasonable risk of injury to health or the environment because of potential hazard and a potential route of exposure under the intended conditions of use; or those requested by the agency administrator.
Environmentalists have aired similar criticisms of the House bill. For example, the Environmental Working Group in a June 3 statement said, “The bill would allow chemical companies to pay for quick reviews and approval of their favorite chemicals. But promised reviews of the truly dangerous chemicals that persist in the environment and build up in Americans bodies could languish for lack of funding from Congressional appropriators.”
House lawmakers did make several changes to the provision allowing industry to request reviews after some Democrats, EPA toxics chief Jim Jones and environmentalists raised concerns about the language.
For example, lawmakers before voting on the final TSCA bill extended the deadline from six months in an earlier draft of the bill to two years for industry-funded reviews, but added language to allow for EPA to delay risk evaluations should it receive more requests than are covered by available resources.
Conference Negotiations
But the White House statement suggests the administration still has concerns with the provision as included in the House-approved TSCA bill. That means the language might be one of the main points of debate during expected conference negotiations to reconcile the House and Senate bills if the upper chamber approves S. 697.
Expressing optimism for a fix, the White House adds, “We believe these concerns can be addressed and we look forward to working with Congress to send strong TSCA reform legislation for the President to sign.”
The Senate received the House bill on June 24, but the upper chamber is slated to take up its own legislation on the floor sometime before the end of August, according to recent remarks by Senate Majority Leader Mitch McConnell (R-KY).
Both bills would overhaul the 1976 TSCA in order to give EPA new authority to address risks from existing chemicals in the marketplace, and eliminate legal hurdles in current law that have hindered the agency's ability to restrict dangerous chemicals, such as its 1991 failure to ban asbestos.
The House bill has narrower preemption of state toxics programs than S. 697. It would "grandfather," or preserve existing state chemical safety laws that have taken effect before Aug. 1 and preserve state toxic tort claims, after EPA takes final action on a chemical, unless they "actually conflict" with new federal mandates. New state chemical laws, however, would be preempted once EPA finishes a restriction under TSCA.
The Senate bill also contains grandfathering provisions to preserve existing laws, but preemption for new chemical rules and laws would occur when EPA launches a review of a chemical.
Udall suggested at a June 25 Bipartisan Policy Center (BPC) TSCA reform discussion in Washington, D.C., that lawmakers have several options to resolve differences between the bills, including an informal conference. Such a process, in which lawmakers hold informal talks ahead of a formal conference and “outlined the differences” in each bill, could mean that the formal conference would go quickly and smoothly, Udall said.
Rep. John Shimkus (R-IL), chair of the House Energy & Commerce Committee environment panel, said he plans to wait until the Senate passes its bill despite urging from Sen. Barbara Boxer (D-CA), ranking member on the Senate environment panel, that the House bill would be the more appropriate measure for the Senate to take up. As a result, the final TSCA legislation that Congress might approve in the coming weeks and send to Obama for his signature is likely to be a compromise between H.R. 2576 and S. 697.
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California Releases BPA Toxicity Meeting Materials
Jun 30, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (OEHHA) has released the synopsis and slide presentations from the Developmental and Reproductive Toxicant Identification Committee (DART-IC) meeting in which they voted 7-0 that bisphenol A (BPA) was known to the state to be a reproductive toxicant (CW 12 May 2015).
Following public comments and discussion, DART-IC determined at its 7 May meeting that BPA had been “clearly shown through scientifically valid testing, according to generally accepted principles, to cause reproductive toxicity, based on the female reproductive endpoint".
The Natural Resource Defense Council (NRDC) and the Endocrine Disruption Exchange (TEDX) cited a number of studies in their presentation to DART-IC that they said demonstrated how BPA can cause: genetic damage to the ovum;alterations in the ovulation cycle;impaired endocrine function;decreased ability to conceive; andadverse effects on sexual behaviour.
The American Chemistry Council (ACC) and the Art and Creative Materials Institute (ACMI) presented slides challenging whether the evidence had “clearly shown” the reproductive toxicity of BPA, noting that suggestive or concerning data does not satisfy the statutory requirement.
The ACMI was involved in lobbying the committee because BPA is used to make polycarbonate components of certain art material products, as well as certain packaging used for art materials.
BPA was listed under California's Proposition 65 as a female reproductive toxicant effective 11 May 2015.
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Comparing the Senate and House TSCA reform legislation: A side-by-side
Jun 29, 2015 | Environmental Defense Fund
By Richard Denison
Last week, the House of Representatives passed the TSCA Modernization Act of 2015 (H.R. 2576), its bill to reform the Toxic Substances Control Act (TSCA). The Senate is poised to consider its own bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), within the next few weeks.
How would these bills address the key flaws in current TSCA? The chart below provides a 35,000-foot-level comparison of the two bills. It's also available as a here: http://blogs.edf.org/health/files/2015/06/TSCA-Lautenberg-Act-House-bill-6-29-15.pdf
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Restricted Flame Retardant Causes Cancer In Rats, Mice, NTP Peer Reviewers Conclude
Jun 30, 2015 | BNA Daily Environment Report
By Pat Rizzuto
A once widely used but now partially prohibited flame retardant shows clear evidence of causing certain cancers in laboratory rats and mice, according to a scientific panel advising the National Toxicology Program.
A mixture of polybrominated diphenyl ethers (PBDEs) that once was commonly used to slow fires in mattresses and upholstered furniture showed clear evidence of causing liver cancers in both rodent species, the peer review panel told National Toxicology Program, according to a summary of the panel's June 25 meeting.
The panel reviewed a mixture of closely related PBDEs that would have been found in pentabromodiphenyl ether (penta-BDE), a flame retardant voluntarily phased out of U.S. production in 2004.
Worker, Workplace Implications
If the peer review panel's conclusion is made final after additional scientific reviews and penta-BDE is deemed a carcinogen, that would be of interest to firefighters who have increasingly raised concerns as well as to federal and state legislators and regulators.
The International Association of Fire Fighters is one example of an organization that has passed a resolution raising health concerns about exposure to flame retardants. The National Institute of Standards and Technology maintains a website with information from a 2009 workshop it held on flame retardants and firefighter health.
NTP's final classifications also could trigger a process that leads to a chemical being placed on California's Proposition 65 list, possibly resulting in hazard communication warnings in workplaces and elsewhere.
“When the NTP report is finalized, we will evaluate it to see if it qualifies penta-BDE for a Proposition 65 listing,” Sam Delson, deputy director for external and legislative affairs for California's Office of Environmental Health Hazard Assessment, told Bloomberg BNA in a June 29 e-mail.
California's Environmental Protection Agency nominated polybrominated diphenyl ethers (PBDEs) for NTP's research portfolio 15 years ago after scientists began increasingly to find the chemicals in animals and people (63 DEN A-13, 3/31/00).
In 2003, California's legislature banned both penta-BDE (CAS No. 32534-81-0) and a related flame retardant, octabromodiphenyl ether (octa-BDE; CAS No. 32536-52-0) from manufacture, distribution and processing in the state.
California's ban also applied to products containing more than 0.1 percent of penta- or octa-BDE effective Jan. 1, 2008 (AB 302, Chartered).
Exposures Continue
The EPA made part of that restriction apply nationwide through a 2006 new-use rule (RIN 2070-AJ02).
Under the new use rule, neither penta- or octa-BDE can be made in or imported into the U.S. without the EPA's review (71 Fed. Reg. 34,015; 113 DEN A-2, 6/13/06).
Furniture and other products containing penta-BDE and octa-BDE have been allowed to be imported under the EPA's 2006 rule.
Domestic furniture manufacturers have raised concerns about that importation (10 DEN A-9, 1/14/05).
Penta-BDE remains in the environment, builds up in the food chain and is a continuing source of animal and human exposure because it remains in mattresses, furniture and other products made before its use was discontinued, according to NTP's draft penta-BDE report.
The flame retardant also is in discarded products, and it could expose workers that recycle used mattresses or upholstered furniture. Connecticut became the first state in 2013 to require mattress recycling, according to the state's description of its law and voluntary stewardship program (Public Act 13-42).
The EPA may restrict further imports of furniture and other products that contain penta-BDE, among other polybrominated biphenyls.
The agency proposed a significant new use rule (RIN 2070-AJ08) on April 2, 2012, that would have required the agency's oversight before products made with either flame retardant could be imported (77 Fed. Reg. 19,862; 54 DEN A-15, 3/21/12).
No final rule has been issued.
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EPA to Publish Final Ferroalloy Production Standards
Jun 30, 2015 | BNA Daily Environment Report
The Environmental Protection Agency set the first emissions standards for formaldehyde, hydrogen chloride, mercury and polycyclic aromatic hydrocarbons from ferroalloys production facilities in a final rule to be published in the Federal Register June 30. The rule (RIN 2060–AQ11) completes the residual risk and technology review of the national emissions standards for hazardous air pollutants (NESHAP) for ferroalloy production. The revised standards will apply to two facilities, one in West Virginia and one in Ohio, which will have two years to comply with the updated requirements. The rule also requires those facilities to capture at least 95 percent of their fugitive emissions and revises the particulate matter emissions limits for electric arc furnaces, metal oxygen refining processes, and crushing and screening operations. Ferroalloy production facilities will also be required to monitor their emissions' opacity using digital cameras. The EPA proposed the rule in 2014 (193 DEN A-1, 10/6/14).. The EPA's final rule is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-15038.pdf.
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EPA Set To Update Toxic Standards For Steelmaking
Jun 29, 2015 | E&E News PM
By Amanda Peterka
U.S. EPA will finalize the first update tomorrow to 1999 toxic air pollution standards for a key process in steelmaking.
The final rule, scheduled for publication in tomorrow's Federal Register, applies to the production of ferroalloys, or iron compounds with added elements such as silicon, manganese and chromium. They reduce corrosion in finished stainless steel and counteract the harmful effects of sulfur in steelmaking.
EPA's final rule revises limits for particulates from electric arc furnaces, metal oxygen refining processes, and crushing and screening operations that go into the production of ferroalloys.
It would tighten controls on fugitive emissions from furnaces and other processes. Under the rule, facilities must put in place systems that capture at least 95 percent of process fugitive emissions.
The final rule also sets emission standards for the first time for formaldehyde, hydrogen chloride, mercury and polycyclic aromatic hydrocarbons stemming from ferroalloys production, as well as requires operations to monitor the opacity of emissions with digital camera technology.
"This rule is health protective due to the revised emissions limits for the stacks," EPA said in a prepublication notice, "and the requirement of enhanced fugitive emissions controls that will achieve significant reductions of process fugitive emissions, especially manganese."
The 1999 regulations applied to two types of ferroalloys -- those containing manganese and silicon -- and cover two companies in West Virginia and Ohio. EPA concluded through a technology and risk review that the regulations expose members of the public living near ferroalloys facilities to "unacceptable" levels of manganese and lead to mercury concentrations in fish and cancer risks that are at the "upper end of acceptability."
The agency proposed the updates in both a 2011 proposed rule and a supplement to that proposal last year.
The American Iron and Steel Institute had warned that the update, while affecting only two domestic companies, would have outsized effects on the broader steel industry and make the United States less competitive globally.
EPA said it made several changes in the final rule to take into account public comments, including adding new flexibilities for facilities to meet the fugitive emission requirements. EPA said it also updated the data underlying the revised standards.
In its economic analysis, EPA says the final rule would cost $40.3 million in upfront capital costs, then $7.7 million a year in 2012 dollars.
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(ACC Mentioned) Chemical Safety Board Down to Two Members, Still at Odds
Jun 29, 2015 | Government Executive
By Charles S. Clark
With the Senate out of town and no chance for quick confirmation of a chairman, the Chemical Safety Board is ending a drama-filled month of June with just two of its complement of five members, two key officials on administrative leave for alleged misconduct and one pending lawsuit.
Yet Interim Chairman Rick Engler managed—on June 24, the final day of board member Mark Griffon’s five-year term—to vote through an “urgent” new rule to improve transparency of the 40-employee agency that investigates industrial accidents and critiques regulations.
“Just like the public has a legal right to know about the chemicals in their communities, the public has a right to know about the governance of this agency and where our investigations stand,” he said, drawing a contrast between himself in his temporary leadership role and the practices of Chairman Rafael Moure-Eraso, who was fired by President Obama in March.
Specifically, the rules require the chairman to schedule at least four public meetings in Washington, D.C., each year; mandate public consideration within 90 days of any item proposed for the calendar but postponed by vote (the previous chairman had postponed such items indefinitely); require public business meetings to include a review of current investigations and action-plan progress; and allow all board members, not just the chairman, to add agenda items at public meetings.
Departing board member Griffon said the “reforms will promote the CSB’s active engagement with stakeholders, including communities, industry, labor, scientific organizations and environmental constituencies. Our action today responds to the appropriate chorus of calls for positive changes at the CSB,” changes demanded by lawmakers of both parties and an inspector general.
“Just last week, the Senate Appropriations Committee sent the CSB an unmistakable message by cutting $300,000 from CSB’s fiscal 2016 budget of $11 million,” the agency said in a release.
During public comment, the transparency rules drew support from the American Chemistry Council, the United Steelworkers and the International Chemical Workers Council. But opposition came from the advocacy group Public Employees for Environmental Responsibility, which continues to attack Engler’s management practices.
In a press release the day of the rules vote, the nonprofit’s executive director, Jeff Ruch, disclosed that CSB Deputy General Counsel Ray Porfiri, who is subbing for General Counsel Richard Loeb during Loeb’s administrative leave, is suing his own agency.
Porfiri is seeking $300,000 from his agency because of “discrimination” against him relating to injuries he suffered in an April 2011 accident while pruning a tree at his home, according to PEER. Porfiri argues those injuries should relieve him, as an attorney, of duties to travel to industrial accident sites.
PEER’s complaint is that Porfiri, as the agency’s new top legal officer, is now supervising the CSB attorney working with the Justice Department on his case, which is pending before a judge. That official, Government Executive has learned, is CSB Assistant General Counsel Michele Bouziane.
According to PEER, the suit currently faces a government motion to dismiss, but Porfiri is pressing for settlement now, before the motion is decided. “If the motion to dismiss is granted, the settlement value of the suit would be greatly decreased, if not completely negated,” the group said. Engler, it adds, now claims authority to order payment to Porfiri without outside review.
Engler did not respond by publication time to requests for comment. But he told the Washington Post that that there is a “firewall” between Porfiri as plaintiff and Porfiri as defendant, meaning that other attorneys will handle his lawsuit against the board, the Post wrote.
Addressing the uncertainty of when a new chairman will be confirmed, Engler in his press release said, “We have an obligation to our oaths of office and the American people to act. It took two years for Member Ehrlich and me to be confirmed. Member Griffon and I will not shut down CSB in the meantime. If these new rules need further improvement, they can be updated in the future.”
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A Grand Tale Of Intrigue In A Very Small Palace
Jun 30, 2015 | The Washington Post
By Lisa Rein
The board responsible for investigating chemical accidents had one of the most toxic work environments in the government, earning the unhappy distinction last year of worst place to work among small agencies.
President Obama forced out the Chemical Safety Board chairman in March under bipartisan pressure from Congress, which had accused him of hostility toward his staff that slowed investigations and led to an exodus of experienced investigators.
By spring, it seemed like the palace intrigue had settled down. But in recent weeks it has only intensified.
The independent board, with just 40 employees and a budget of $11 million, is an obscure corner of government with a big mission nonetheless — to recommend changes to industry, regulators and labor after headline-grabbing accidents from the Deepwater Horizon spill to last year’s chemical spill near Charleston, West Virginia that left thousands of people without drinkable water.
But it’s hard to see how the anyone working there could focus much, what with a purge this month of the board’s entire executive staff. The new interim chairman — who stepped into the job with the support of one of the two remaining members — ordered the managing director and general counsel on paid administrative leave while their conduct is investigated, according to documents obtained by Public Employees for Environmental Responsibility (PEER), a watchdog group.
The officials were allies of former chairman Rafael Moure-Eraso.
With just three seats on the five-member board filled, and the number set to go down to two this week as one member’s term expires, the board won’t have a quorum to set policy and make decisions. President Obama has nominated two new members, but the Senate has not yet confirmed them.
And there’s more. The deputy general counsel, who’s been tapped to handle much of the work of his boss, is suing the board for hundreds of thousands of dollars for allegedly failing to accommodate him after an injury.
Moure-Eraso’s management style came into public view last winter with a critical report by the inspector general for the Environmental Protection Agency. That triggered a separate scathing report by the House oversight committee. The chairman was accused of conducting public business on private e-mail, quashing dissent on his staff and stalling crucial safety investigations.
In an interview with GovExec this month, Moure-Eraso said he had tried to bring order to an agency with “no lines of authority” before his arrival.
Rick Engler stepped into the void this month, finding a vote of support from one of the two remaining board members to designate himself “Board Member Delegated Interim Executive and Administrative Authority.”
Engler said in an interview Thursday that he is busy “righting the ship” and trying to get the little agency “back on mission, to get our laser focus back” after years of turmoil. “The staff has done a wonderful job, despite the turbulence,” he said.
He said he could not discuss internal personnel matters, but an agency official said Engler put the general counsel and managing director on leave to investigate possible misconduct identified by Congress and the inspector general.
Raymond Porfiri, the deputy counsel taking on many of the duties of general counsel, sued the safety board and Moure-Eraso last year. According to documents made public by PEER, the attorney was pruning a tree damaged after a storm and fell to the ground. He alleges that he suffers from back and leg pain, but was restricted from working from home, where he was more comfortable. He also said the board requires him to travel to accident sites, a responsibility other attorneys he works with do not have.
Engler said that there is a “firewall” between Porfiri as plaintiff and Porfiri as defendant, meaning that other attorneys will handle his lawsuit against the board.
“Mr. Porfiri has been here for 17 years,” Engler said. “He has important institutional memory for the operations of the board.”
PEER Executive Director Jeff Ruch said Engler’s coup d’etat has the smell of the same unpleasant management style as his predecessor.
“There were congressional calls for Rafael Moure-Eraso’s ouster because of a toxic work environment,” Ruch said. “Well, we have gone from toxic to thermonuclear under the new guy.”
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New York State Officially Bans Fracking Following Years of Litigation, Research
Jun 30, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
New York officially banned the natural gas drilling practice known as fracking June 29, after years of litigation, regulation, study and some 260,000 public comments.
The move came in a long-awaited “findings statement” issued by the Department of Environmental Conservation under the State Environmental Quality Review Act.
“After years of exhaustive research and examination of the science and facts, prohibiting high-volume hydraulic fracturing is the only reasonable alternative,” DEC Commissioner Joseph Martens said in a statement. “High-volume hydraulic fracturing poses significant adverse impacts to land, air, water and natural resources and potential significant public health impacts that cannot be adequately mitigated.”
While the statement was not seen as a surprise, it officially closes the door on a regulatory process that began at least six years ago when the state issued its first environmental impact statement on high-volume hydraulic fracturing. The state has had an effective moratorium on fracking in place since 2010.
The findings statement comes a little more than six weeks after the DEC issued its final environmental impact statement on fracking, known as a supplemental generic environmental impact statement (94 DEN A-13, 5/15/15).
Oil and gas industry attorney Thomas S. West of the West Firm PLLC told Bloomberg BNA that the findings statement “is an exercise in contradictions.”
“Much of the document is spent refuting the two prior drafts issued by the Department that confirm that high-volume hydraulic fracturing can be done safely if properly regulated,” he said in an e-mail. “Then, the Findings Statement recounts the many mitigation measures that were proposed to regulate high-volume hydraulic fracturing and minimize environmental impacts, but dismisses them as being insufficient.”
He said the statement “runs roughshod on the legal obligations of the Department” to authorize and provide for the operation and development of oil and gas properties in the state and to protect the correlative rights of landowners.
Evidence of Harm From Fracking
John Armstrong, a spokesman for Frack Action, told Bloomberg BNA that the decision to ban fracking “reflects significant scientific evidence that fracking harms people's water, air, health, and communities.”
New York's decision to ban fracking is “reverberating around the nation and the world as more and more places say no to fracking, including Maryland in May and Lancashire, England today,” Armstrong said in an e-mail.
But Karen B. Moreau, executive director of API New York, which is part of the American Petroleum Institute, said “this decision is a moratorium on New York's economic opportunity.”
“New York remains idle while thousands of families in NY's southern tier have their hopes for economic opportunity dashed by the governor's decision,” she said in a statement. “Hydraulic fracturing is being done safely across the country, under the strong environmental stewardship of state regulators and industry best practices.”
In a statement, Kate Sinding, director of the Community Fracking Defense Project at the Natural Resources Defense Council, said “New York has made history today.”
“Gov. Cuomo boldly refused to cave to pressure to gamble our clean air, safe drinking water and communities for oil and gas industry profit,” she said. “The health and well-being of New Yorkers has prevailed over powerful polluters.”
The state's decision applies to “permits to drill, deepen, plug back or convert wells that use high-volume hydraulic fracturing to develop natural gas resources in the Marcellus Shale and other low-permeability gas reservoirs,” according to the findings statement.
“There are no feasible or prudent alternatives that would adequately avoid or minimize adverse environmental impacts and that address the scientific uncertainties and risks to public health from this activity,” the findings statement said.
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New York Makes Fracking Ban Official
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
New York state regulators put the finishing touches Monday on the state’s highly controversial ban on hydraulic fracturing.
The administration of Gov. Andrew Cuomo (D) filed its 43-page findings statement for the ban Monday, saying fracking is too harmful to the environment and public health to be allowed.“After years of exhaustive research and examination of the science and facts, prohibiting high-volume hydraulic fracturing is the only reasonable alternative,” Joe Martens, head of the Department of Environmental Conservation, said in a statement.
“High-volume hydraulic fracturing poses significant adverse impacts to land, air, water, natural resources and potential significant public health impacts that cannot be adequately mitigated.”
Cuomo approved the ban in December, seven years after the state first put a moratorium on the practice.
The natural gas industry has long pressured New York to allow fracking, since it sits atop the gas-rich Marcellus Shale that has turned neighboring Pennsylvania into the second-largest gas producer in the country.
But Cuomo didn’t budge, even after a report earlier this month from the federal Environmental Protection Agency failed to find “widespread, systemic” harm to drinking water from fracking.
New York is the only state with significant gas resources to ban fracking.
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Pennsylvania Governor and Fracking Sector Face Off on Budget, Regulations
Jun 29, 2015 | The Wall Street Journal
By Kris Maher
Since taking over from a Republican administration this year, Democratic Pennsylvania Gov. Tom Wolf repeatedly has said he supports the state’s booming shale gas industry. But lately, the industry is questioning his commitment.
State regulators, who have begun reviewing dozens of environmental cases the previous administration handled, recently imposed an $8.9 million fine for a gas well they said is contaminating drinking water—the largest ever against a gas operator in state history.
The state is also proposing a raft of stricter drilling rules to prevent wastewater from contaminating drinking water sources. And industry officials are upset that the Wolf administration earlier this month slashed its estimate of state jobs supported by the shale-gas industry to 89,000 from the previous administration’s estimate of more than 200,000.
“This administration’s words continue to be alarmingly detached from its actions as it relates to policy and regulatory matters,” said Dave Spigelmyer, president of the Pittsburgh-based Marcellus Shale Coalition.
Jeffrey Sheridan, a spokesman for Mr. Wolf, said the administration seeks a balance between promoting development and protecting the environment. Mr. Wolf took office in January after defeating former Gov. Tom Corbett.
Mr. Sheridan said the prior administration’s industry jobs figures were inflated, including road-construction workers, truck drivers not employed in the industry, and even state regulators.
Mr. Spigelmyer said the change appeared motivated more by politics than economics. Job numbers are a key indicator of the shale boom’s importance to the state economy and are cited in debates about how much to tax and regulate drilling.
Another sore point for the industry is the governor’s appointment of cabinet members who previously worked for an environmental nonprofit organization called PennFuture, including John Quigley, head of the state Department of Environmental Protection. The group has pushed for tougher drilling rules.
Mr. Sheridan said all the appointees were confirmed by the Republican-controlled state Senate and none is biased against the gas drilling.
Hydraulic fracturing, or fracking, has exploded since 2008 into a main economic driver for Pennsylvania. The state’s natural gas production, mostly from fracked wells that tap the Marcellus Shale, exceeded 4 trillion cubic feet last year, doubling the state’s 2012 output and making Pennsylvania the nation’s second-largest gas producer behind Texas. Fracking involves pumping millions of gallons of water and chemicals more than a mile underground to free gas deposits.
This year, state and local governments will receive $224 million from the fees companies are required to pay on fracked wells. Such fees have generated a total of $855 million in revenue since they were enacted in 2012.
Tensions have built as Mr. Wolf and the Republican-led legislature appear unlikely to agree on a state budget ahead of a June 30 deadline. The governor has said he will veto a budget Republicans passed over the weekend because it doesn’t include his top priorities, such as a new 5% severance tax on shale drilling that he estimates will bring in $1 billion in annual revenue to fund schools. A budget stalemate could continue for several weeks before residents begin to notice cuts to services, said experts.
Republican House Speaker Mike Turzai said he opposes the severance tax and believes the governor’s revenue estimate is too high. “The governor’s proposal will amount to a de facto moratorium on the development of natural gas in the Commonwealth,” he said.
As the issue is debated, it isn’t clear whether a new 5% severance tax on gas production would replace the current per-well fee or come in addition to it.
Pennsylvania residents continue to back shale-gas development, recent surveys show, but they have also supported a tax on production to help bridge a deficit the governor’s office estimated at over $2 billion. The state’s Independent Fiscal Office puts the shortfall at $1.5 billion.
On June 16, regulators announced an $8.9 million fine against Range Resources Corp. of Fort Worth, Texas, for allegedly failing to prevent natural gas and other substances from contaminating drinking water in Lycoming County.
Since 2008, the state has assessed $20.2 million in fines against the industry, not counting the latest fine. The highest one assessed previously was a $4.5 million fine against EQT Corp. The company is challenging the fine and declined to comment.
Regulators said Range hasn’t repaired a defective well casing. “I cannot speak for why the previous administration chose not to take action, but this administration will,” said Mr. Quigley, the state’s top environmentalregulator.
Range, which is appealing the fine, said its testing showed that natural gas in 21 nearby residential wells was different from gas in Range’s well. Separate testing concluded the cement casing around the well was sound.
“We are equally confident that the environment and community are not at risk,” Range said in a statement.
Corrections & Amplifications
The largest fine Pennsylvania assessed against a natural-gas producer before this month’s $8.9 million fine was one for $4.5 million, which is being challenged. A previous version of this article cited a fine for $4.15 million without clarifying it as the largest such fine that has been paid. (June 29, 2015)
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Complaint Seeks BIS Disclosure Of Documents on Oil Export Ban Decisions
Jun 30, 2015 | BNA Daily Environment Report
By Rossella Brevetti
The Commerce Department's Bureau of Industry and Security could be forced to release information on decisions it made in administering the oil export ban if a recent Freedom of Information Act (FOIA) suit is successful (Sightline Inst. v. U.S. Bureau of Indus. & Sec., W.D. Wash., No. 2:15-cv-01021, complaint filed, 6/25/15).
“BIS is making public policy decisions about America's energy future behind tightly closed doors. We expect greater transparency and accountability of our government when it is shaping the country's and even the planet's energy future,” Patti Goldman, managing attorney of Earthjustice's Northwest office, said in a press statement.
Earthjustice, on behalf of Sightline Institute, filed a complaint for injunctive and declaratory relief in the U.S. District Court for the Western District of Washington.
Enacted in response to the 1970s Arab oil embargo, the Energy Policy and Conservation Act of 1975 (EPCA) called for regulations banning the export of crude oil produced in the U.S. The EPCA allowed the president to create specific exemptions.
Commerce's BIS, which administers the crude oil export ban, has promulgated regulations codifying the ban, along with the presidential and statutory exemptions to it. The agency has also put in place licensing requirements for permitted exports. The regulations generally allow the export of domestic refined oil and petroleum products without a permit. The regulatory definition of “crude oil” distinguishes between crude oil subject to the ban and refined oil and petroleum products.
Records Requested
According to the June 25 complaint, recent decisions made by the BIS have weakened the export ban on U.S. crude oil. Sightline Institute and Earthjustice filed a FOIA request on Feb. 10, seeking pertinent records related to the decisions, but the BIS failed to respond. Sightline asked for records explaining the full basis for the recent BIS determinations on condensate exports and the definitions of crude oil and processing.
Unless records fall within one of FOIA's nine narrowly tailored exemptions, FOIA compels the release of the requested records.
The BIS's deadline for issuing a final determination of Sightline's FOIA request elapsed on or about March 11, according to the complaint.
“BIS has a duty to release any and all portions of records that are not subject to a FOIA exemption. To the extent that BIS claims the application of any FOIA exemptions, BIS has a duty to substantiate those claims and meet its burden of proof regarding the application of any such exemptions. BIS has failed to prove that the requested records fall within any FOIA exemptions. Even if BIS can prove that some portions of the requested records contain confidential business information and can be withheld on that basis, it must release all segregable portions of the requested records,” the complaint said.
In the past, the BIS has declined to release export license information on the grounds that Export Administration Act Section 12(c) authorizes withholding such documents under FOIA Exemption 3. “The EAA no longer qualifies as a FOIA Exemption 3 statute because it has expired. No other statute authorizes withholding of these documents,” the complaint said.
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Senate Democrats Lay Out Priorities For Legislative Package
Jun 29, 2015 | E&E News PM
By Daniel Bush
As the debate over a broad energy package intensifies on Capitol Hill, Senate Democrats today rolled out a sweeping list of energy policy priorities focused on curbing carbon emissions and investing in renewable technology.In a letter soliciting input on energy policy from governors, the Democrats called for a national energy policy that prioritizes investment in clean energy sources and efforts to upgrade the U.S. electrical grid and other energy infrastructure.
"We believe the U.S. must establish a framework that helps unleash investment in our infrastructure sufficient to ensure all American citizens and businesses have access to affordable, efficient, reliable and cleaner energy," they wrote in the letter.
Individual Democrats also chimed in in support of the effort.
"The need for clean, reliable and efficient supplies of energy is becoming closely intertwined with our economic growth and global competitiveness," Sen. Maria Cantwell of Washington, the top Democrat on the Senate Energy and Natural Resources Committee, said in a statement.
Calling climate change "the most significant challenge our world faces," Minority Leader Harry Reid (D-Nev.) urged Congress to address the issue.
"Updating our outdated energy policy is a good place to start, and we look forward to reviewing suggestions from our country's governors," Reid said.
The letter was signed by 44 Senate Democrats and Maine independent Sen. Angus King, who caucuses with the party. Sen. Bernie Sanders of Vermont, another independent who caucuses with Democrats and is a vocal supporter of action on climate change, didn't sign on.
The senators said the letter was a response to the release of the Department of Energy's Quadrennial Energy Review. It comes as lawmakers on both sides of the aisle work to craft the first broad energy policy package in a decade.
Momentum in the House and Senate is building for the package, which could hit the floors of both chambers later this summer.
But the letter suggests the significant differences that remain between Democrats who support clean energy and Republican lawmakers who favor investment in energy efficiency and infrastructure modernization.
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Clean Power Plan Implications Unclear After Supreme Court Denies Agency Deference
Jun 30, 2015 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court once again cautioned the Environmental Protection Agency against an overly broad reading of its Clean Air Act authorities, but the implications for the agency's Clean Power Plan are unclear, attorneys said.
Congressional Republicans seized on the Supreme Court's decision remanding the EPA's toxic pollutant standards for power plants to a federal appellate court as further evidence that the agency has strayed from its statutory authority, arguing the same reasoning would apply to the Clean Power Plan. However, attorneys said the court's reasoning may not be applicable to the proposed carbon dioxide standards for existing power plants.
“All of us are trying hard to crystal ball this,” Jody Freeman, director of the Environmental Law Program at Harvard University told Bloomberg BNA June 29. “The Clean Power Plan is really a unique case and it's really going to stand or fall on the specifics on [Clean Air Act Section] 111 and the strength of EPA's arguments of whether it's reasonable.”
The EPA's proposed Clean Power Plan (RIN 2060-AR33) would set a unique carbon dioxide emissions rate for the power sector in each state. State regulators would develop their own plans on how best to achieve those emissions goals. The rule is currently at the White House Office of Management and Budget for review.
The Supreme Court reversed a 2014 federal appeals court decision that upheld the EPA's mercury and air toxics standards (MATS), a rule that the agency estimated would cost the power industry $9.6 billion annually, finding the agency must consider compliance costs when determining whether regulating a pollutant under Section 112 of the Clean Air Act is appropriate and necessary (Michigan v. EPA, U.S., No. 14-46, 6/29/15) (see related story).
Scalia Cautions Against Broad Readings
Justice Antonin Scalia, who wrote the majority opinion on the mercury and air toxics standards, said that the EPA “strayed well beyond the bounds of reasonable interpretation” when it chose not to consider compliance costs when it determined that it was appropriate and necessary to regulate toxic emissions from power plants.
Scalia had previously cautioned the EPA against overly broad readings of Clean Air Act provisions in a separate decision limiting the scope of the EPA's greenhouse gas permitting program. “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,' Brown & Williamson, 529 U. S., at 159, we typically greet its announcement with a measure of skepticism,” he wrote in that decision (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (U.S. 2014) ).
Opponents of the Clean Power Plan have repeatedly cited that language in their arguments against the EPA's regulation.
However, Ann E. Carlson, the Shirley Shapiro Professor of Environmental Law at the University of California, Los Angeles, told Bloomberg BNA June 29 that Scalia's latest opinion does little more than reiterate that long-standing position.
“I don't think it tells us anything we didn't already know about Justice Scalia,” she said.
Federal agencies are entitled to deference when they interpret ambiguous statutes, the Supreme Court said in 1984 (Chevron U.S.A. Inc. v. NRDC, 467 U.S. 843, 21 ERC 1049 (U.S. 1984)).
Decision Shows Split on Deference
James Rubin, counsel at Dentons U.S. LLP, told Bloomberg BNA June 29 that the latest Supreme Court decision suggests the justices have diverging opinions on how much deference agencies are due when interpreting statutes.
“This shows you that there's a pretty divided court on what agency discretion means,” he said.
The EPA has argued it is due deference to interpret ambiguous language in Section 111(d) of the Clean Air Act as it has defended its proposed Clean Power Plan. Conflicting amendments to Section 111(d) were signed into law when the Clean Air Act was amended in 1990. The language adopted by the House would bar the EPA from regulating under Section 111(d) industrial sources that are already subject to standards under Section 112, as are power plants. The Senate's language would simply prevent the agency from regulating those pollutants under Section 111(d) that are already subject to hazardous air pollutant standards under Section 112.
The agency argued in lawsuits brought by coal companies and several states challenging the rule that the conflicting amendments create an ambiguity that is open to interpretation. The U.S. Court of Appeals for the District of Columbia Circuit dismissed those challenges on procedural grounds without addressing the merits of the arguments (In re: Murray Energy Corp., 2015 BL 180996, D.C. Cir., No. 14-1146, 6/9/15; West Virginia v. EPA, 2015 BL 180996, D.C. Cir., No. 14-1146, 6/9/15; 111 DEN A-1, 6/10/15).
Republicans Seize on Decision
Republican lawmakers seized upon the court's decision as evidence that the EPA has overstepped its statutory authority and that the Clean Power Plan should be reined in as well.
Senate Majority Leader Mitch McConnell (R-Ky.) said the court's decision showed that states should avoid the millions in anticipated costs to develop compliance plans, because the “likely illegal” EPA regulation itself could be ultimately overturned.
“Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out,” McConnell said.
Senior House lawmakers separately said the Supreme Court's ruling showed the approach advanced by the Ratepayer Protection Act (H.R. 2042), which passed the chamber 247-180 on June 24, was appropriate. That bill allowed states to delay compliance with the Clean Power Plan until all legal challenges have been exhausted, among other provisions (122 DEN A-17, 6/25/15).
“The ruling further underscores the need to extend the compliance requirements for the pending [Clean Air Act Section] 111(d) rule until the numerous legal questions surrounding it are fully resolved,” said Reps. Fred Upton (R-Mich.) and Ed Whitfield (R-Ky.), who chairs the Energy and Commerce Subcommittee on Energy and Power.
Senate Efforts Pushed
Senate Republicans also vowed to advance legislation enabling states to opt out of the regulation until all litigation has finished.
“Going forward, states should not be forced to bear the brunt of other costly EPA regulations before legal challenges are complete,” Sen. Shelley Moore Capito (R-W.Va.) said. “I will continue to work with my colleagues to advance policies that protect reliable and affordable energy, put jobs and our economy first and curb federal overreach.”
Capito has introduced legislation (S. 1324) that would go much further than the House-passed bill by immediately killing off pending carbon pollution rules and setting even stricter requirements for the EPA to meet if it elects to try again on regulating carbon dioxide emissions from power plants (114 DEN A-1, 6/15/15).
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Congress Takes A Break, Tees Up Bills To Cripple Clean Power Plan
Jun 29, 2015 | E&E News PM
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.
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Supreme Court Remands EPA Mercury Rule For Failing to Consider Cost to Power Plants
Jun 30, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency was required to consider the cost of compliance when deciding whether it was “appropriate and necessary” to regulate emissions of mercury and other air toxics from power plants, the U.S. Supreme Court ruled June 29 (Michigan v. EPA, U.S., No. 14-46, 6/29/15).
The court, in a majority opinion written by Justice Antonin Scalia, reversed a 2014 federal appeals court decision that upheld the EPA mercury and air toxics standards (MATS), a rule that the agency estimated would cost the power industry $9.6 billion annually. Scalia was joined in the 5-4 majority by Chief Justice John Roberts and justices Anthony Kennedy, Clarence Thomas and Samuel Alito.
The ruling did not address the substance of the 2012 mercury and air toxics standards, which established emissions limits for mercury, filterable particulate matter as a surrogate for toxic metals and hydrogen chloride as a surrogate for acid gases. Instead, the litigation focused on the EPA's December 2000 determination that it was appropriate and necessary to regulate hazardous air pollution from power plants, which are the largest U.S. source of mercury emissions.
The EPA had argued that Section 112(n)(1)(A) of the Clean Air Act, which instructed the agency to study air toxics emissions from power plants and determine whether to regulate those emissions, did not explicitly require the agency to consider cost in making that determination. The court ruled that was an unreasonable interpretation of the statutory language.
“EPA must consider cost—including cost of compliance—before deciding whether regulation is appropriate and necessary,” Scalia wrote. “It will be up to the agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”
The Supreme Court's decision overturned a 2014 decision by the U.S. Court of Appeals for the District of Columbia Circuit, which ruled that the EPA decision to not consider the cost of regulating was reasonable (White Stallion Energy Ctr. LLC v. EPA, 748 F.3d 1222, 78 ERC 1757, 2014 BL 103957 (D.C. Cir. 2014); 73 DEN A-1, 4/16/14).
The petitioners in the case were a coalition of 21 states led by Michigan, the National Mining Association and the Utility Air Regulatory Group.
EPA ‘Strayed' From Chevron Doctrine
The court held that the EPA “strayed far beyond” the bounds of the Chevron doctrine, a two-part test for review of agency actions, when it decided to not consider cost.
Under Chevron, a court first must decide whether the plain text of the law is clear. If the law is ambiguous, then the court must decide whether the agency's interpretation of the law is permissible.
Scalia wrote that even under the Chevron doctrine, an agency still must operate within “the bounds of reasonable interpretation,” something the agency did not do when it determined it could ignore cost when deciding to regulate power plants.
“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,” Scalia wrote.
Scalia said that while there are settings in which the phrase “appropriate and necessary” does not include cost, a determination of whether to regulate the power industry is not one of those instances.
The other four members of the court, in a dissenting opinion written by Justice Elena Kagan, described the majority opinion as “micromanagement” of the EPA rulemaking process. Kagan wrote that the EPA reasonably declined to analyze cost during a single step in a rulemaking process that was “otherwise imbued with cost concerns.”
Kagan highlighted the EPA's ability to divide power plants into different categories subject to different standards and the agency's cost-benefit analysis prepared for the final MATS rule as examples of the agency's consideration of cost.
“The central flaw of the majority opinion is that it ignores everything but one thing EPA did,” Kagan wrote.
Rule Still in Place
Despite the court's ruling, the mercury and air toxics standards are still in place. The court remanded the decision back to the U.S. Court of Appeals for the District of Columbia Circuit for further proceedings.
The circuit court panel ultimately will determine whether the mercury and air toxics standards are vacated, stayed or remain in effect while the EPA reconsiders its determination to regulate power plant emissions, attorneys told Bloomberg BNA June 29.
Thomas Lorenzen, a partner with Crowell & Moring LLP, said no one involved in the litigation can afford to wait too long for the D.C. Circuit to decide how to proceed.
“So much rests with what the D.C. Circuit does on remand,” Lorenzen said.
Lorenzen highlighted about 170 power plants that received a compliance extension of up to one year from state regulators, which he said will want to know “as quickly as possible” whether they have to comply with the MATS rule. Plants that were not granted an extension were required to comply with the standards by April 16, a deadline that required the installation of billions in pollution controls and factored into the closure of many coal-fired power plants.
Representatives from American Electric Power, FirstEnergy Corp. and other utilities told Bloomberg BNA in April that a Supreme Court ruling against the EPA would come too late to alter plans to close plants or invest in pollution controls (71 DEN A-1, 4/14/15).
Practical Implications for Power Industry
However, there still could be practical implications for power companies if the MATS rule were to be vacated or stayed, Debra Jezouit, a partner at Baker Botts LLP, told Bloomberg BNA. Even companies that are in compliance with the standards are subject to monitoring and recordkeeping requirements under the MATS standards, a burden that could disappear if the rule is vacated, Jezouit said.
Jeffrey Holmstead, a partner at Bracewell & Giuliani LLP who represents the power industry, predicted that it is unlikely that the MATS rule will be vacated by the D.C. Circuit. A more realistic possibility is that the court will stay implementation of the rule or stay the rule in part, so that power plants that received a compliance extension do not have to take further action to come into compliance, Holmstead told Bloomberg BNA.
“I think there will be a lot of pressure on the court to do something quickly,” Holmstead said.
Lorenzen said it is possible that the D.C. Circuit could convene quickly and expedite action on the remand, but he said it is more likely that the court won't act until sometime in the fall.
Holmstead said he expects the court to call for briefing on further proceedings “relatively soon.” Briefing could be completed in about 90 days and a decision on how to proceed could be issued before the end of 2015, Holmstead said.
EPA Committed to Regulating Mercury
The EPA said in a June 29 e-mail statement that the agency is reviewing the Supreme Court's decision and will determine “any appropriate next steps” once that review is complete.
The agency noted that the court's decision did not focus on the substance of the standards themselves, nor the EPA's authority under the Clean Air Act to limit hazardous air pollutants. The EPA “remains committed” to ensuring that appropriate regulations are in place to protect the public from hazardous power plant emissions, the agency said.
Several attorneys representing environmental groups who intervened in the litigation on behalf of the EPA characterized the rule as a narrow loss that is easily correctable by the EPA.
Sean Donahue, an attorney representing the Environmental Defense Fund, told Bloomberg BNA that while he's disappointed with the decision, the court's ruling is very narrow and leaves the EPA with “considerable leeway” on how to proceed.
“Actually, if I had to lose, I'm pretty pleased with the way the majority opinion is written,” Donahue said.
Environmental Attorneys: Quick Action Possible
Donahue said the EPA should be able to make a similar “appropriate and necessary” determination while considering cost because the agency has already done a cost-benefit analysis when it promulgated the MATS rule. The EPA cost-benefit analysis for the MATS rule estimated the standards would generate up to $90 billion in annual public health benefits.
Ann Weeks, senior counsel and legal director at the Clean Air Task Force, agreed that the EPA should be able to go back and do what the Supreme Court said it must do relatively quickly since the agency already has found that the costs are outweighed by the benefits of regulation.
“It shouldn't take that long because the agency has already done the work,” Weeks said. “I think it's just a matter of crossing the T's and dotting the I's on remand.”
Weeks and Donahue both indicated that public health and environmental groups would oppose requests to vacate or stay the MATS rule on remand. Weeks said that while the majority opinion downplays the benefits of the standards, the regulation protects the public from “pretty nasty pollution.”
Sanjay Narayan, managing attorney with the Sierra Club, said that given the neurological effects of exposure to mercury and other air toxics, it is possible that the EPA can quickly make a formal finding that the rule is “massively beneficial.”
“However, the nature of rulemaking tends to discourage quick action, even when the question is somewhat obvious,” he said.
Narayan said the EPA must consider on remand is how it can best address cost in a way that won't end up with the rule back in court.
James Rubin, counsel in the global Energy, Transport & Infrastructure sector at Dentons US LLP, said that although the EPA did a cost-benefit analysis for the rule, it could still take some time for the agency to figure out its next steps. While the Supreme Court gave the EPA a “road map” of what they did not do, the EPA is still going to have to decide how they want to address cost, Rubin said.
Additionally, Rubin noted much has changed since the EPA issued the MATS rule, including the closure of many coal-fired power plants. That could effect the overall cost of the MATS rule, he said.
“It's not just going to be the same study,” Rubin said.
No Holding on Co-Benefits
One issue the Supreme Court did not address in the Michigan v. EPA opinion is EPA's use of “co-benefits” to justify regulation.
During oral arguments, several members of the court were critical of the EPA's cost-benefit analysis for the MATS rule because it attributed billions in annual public health benefits to the standards, even though the agency could only quantify between $4 million and $6 million in benefits to reductions of hazardous air pollutants. Chief Justice John Roberts questioned the legitimacy of counting benefits from reductions of fine particulate matter and other pollutants that are regulated under other sections of the Clean Air Act (58 DEN A-1, 3/26/15).
Scalia wrote the court did not need to address whether the EPA could have legally considered those ancillary benefits in making the “appropriate and necessary” determination because the agency plainly did not do so.
Holmstead of Bracewell & Giuliani, who formerly served as EPA assistant administrator for air and radiation under President George W. Bush, said the co-benefits issue would be likely to come back in litigation if the EPA were to weigh those ancillary benefits against the cost of regulating air toxics.
“I think EPA is on pretty thin ice if it tries to use co-benefits to justify it,” Holmstead said. “I'm sure that would bring another challenge.”
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Supreme Court Blocks EPA Limits On Power Plant Mercury Emissions
Jun 29, 2015 | Chemical & Engineering News
By Glenn Hess
In a 5-4 decision, the Supreme Court on Monday struck down the Environmental Protection Agency’s first-ever national standards for limiting emissions of mercury and other toxic air pollution from coal- and oil-fired power plants.
The Court ruled that EPA erred by not taking into account the costs placed on the electric utility industry in determining whether it was “necessary and appropriate” to regulate the pollutants under the Clean Air Act.
The decision sends the case back to the U.S. Court of Appeals for the District of Columbia Circuit, which will instruct EPA to reconsider its rule. Meanwhile, the 2012 regulation remains in effect.
Federal agencies have “long treated cost as a centrally relevant factor when deciding whether to regulate,” Justice Antonin Scalia wrote on behalf of the Court in the majority opinion.
Although agencies have some leeway to use their expertise to interpret laws, Scalia said 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.” Scalia was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.
EPA said it considered costs at a later stage of the process when it crafted the emission standards. It pegged those costs at about $9.6 billion per year.
But the agency argued that a provision of the federal law required it to initially decide whether there was a need to protect the public from utility emissions. EPA eventually concluded that the public health benefits, which it estimated at $37 billion to $90 billion in 2016 alone, far outweighed the costs.
The standards would have applied to roughly 600 plants, cutting mercury pollution up to 90% and preventing an estimated 11,000 deaths each year, according to EPA.
Justice Elena Kagan said EPA appropriately considered costs. “Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants,” Kagan wrote in a dissenting opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.
Environmental activists expressed disappointment with the ruling. “The Court’s decision to let polluters off the hook is a huge setback for our kids’ health,” says Anna Aurilio, director of Environment America’s Washington, D.C., office.
However, the National Mining Association, a critic of EPA’s regulation, called the court’s ruling a “vindication of common sense that is missing in much of the Administration’s regulatory actions.” Chemical & Engineering News
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Mercury Ruling Boosts 'Just Say No' Strategy -- GOP Lawmakers
Jun 29, 2015 | E&E News PM
By Jean Chemnick
Capitol Hill foes of U.S. EPA's Clean Power Plan have already seized on the Supreme Court's decision today to remand the agency's mercury and air toxics rule back to a lower court as a vindication of their advice to states to "just say no" to the carbon rule.
Compliance with the 2011 toxics rule for power plants meant shuttering numerous coal-fired power plants around the country, they note, but the high court's decision today sheds doubt on whether the rule might ultimately be overturned. The high court sent the rule back to the U.S. Court of Appeals for the District of Columbia Circuit with instructions to reconsider (Greenwire, June 29).
If the mercury rule is invalidated, the cost and loss of coal-fired generation capacity that utilities around the country have incurred may all be for nothing, Republicans say. And that further illustrates why states should opt not to comply with EPA's existing power plant rule until judicial review has concluded.
"While much of the damage of this regulation has already been done, the ruling serves as a critical reminder to every governor contemplating the administration's demands to impose more regressive -- and likely illegal -- regulations that promise even more middle-class pain," Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement today. "Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out as we saw today."
McConnell counseled governors in a letter in March not to be pressured by EPA into meeting tight deadlines to submit implementation plans for the carbon rule. More time will allow Congress and the courts to act, he said at the time, ensuring that states won't subject their power sectors to unnecessary costs.
Of course, industry and state challengers will likely ask courts to stay compliance dates for the greenhouse gas rule as soon as it is finalized later this summer pending their litigation.
Rep. David McKinley (R-W.Va.) said the Supreme Court decision was a "strong rebuke of the EPA's overreach."
"Unfortunately, the ruling is too late to stop the damage from this regulation and save the coal-fired power plants that have already been shut down," he said. "States and utilities considering complying with the EPA's other economically destructive regulations should take notice of this decision."
McConnell and others argue that EPA has little recourse if states opt not to comply. The agency might eventually step in with a federal implementation plan (FIP) for utilities in noncompliant states, as officials have pledged to do, but that process will be slowed if multiple states "just say no." And courts may act in the meantime to knock down some or all of the rule, making those FIPs less stringent.
The House voted last week to allow all states to delay submitting a state implementation plan until judicial review of the Clean Power Plan has concluded (E&E Daily, June 25). The bill, H.R. 2042, would also allow governors to opt out of the rule for economic reasons and would bar EPA from promulgating a FIP in either case.
"The ruling further underscores the need to extend the compliance requirements for the pending [Clean Power Plan] until the numerous legal questions surrounding it are fully resolved," said Reps. Fred Upton (R-Mich.) and Ed Whitfield (R-Ky.), the chairmen of the House Energy and Commerce Committee and its Subcommittee on Energy and Power.
But the bill sponsored by Whitfield faces a tough road ahead in the Senate, where a similar measure by Sen. Shelley Moore Capito (R-W.Va.) has been introduced but must compete for floor time this autumn with legislation to fund the federal government. While McConnell is expected to move some form of legislation on the Clean Power Plan this fall, it will be largely to send a message. The White House has already unequivocally said President Obama will veto any bill that would scuttle his flagship climate rule.
"This is a major part of his legacy, and I can't imagine a scenario whether it's in appropriations or in regular order in committee where the president would allow a rescission of this program to move forward," said Bill Becker, executive director of the National Association of Clean Air Agencies. "It's going to be a very tough row to hoe for critics of this program."
Thomas Pyle, president of American Energy Alliance, said efforts to scuttle the rule in Congress "don't have a prayer" and may give Democrats who vote for them political cover to claim independence from Obama.
But the beauty of the "just say no" strategy is that it doesn't rely on congressional action, he said. Implementing FIPs will require a rulemaking process for each noncompliant state, which could stretch into the next administration.
"It is designed to see who blinks first, right?" he said. "EPA, or the states that don't want to participate in this nonsense."
But Becker said today's Supreme Court decision doesn't ensure that the toxics rule will change, let alone the carbon rule that is written under another section of the law.
Governors of a few states like Oklahoma and Wisconsin have hinted they will take McConnell's advice, but Becker said he thought most would not risk bucking the law for the years it might take for litigation over the carbon rule to work its way through the courts.
"While there are some states who would like to see the legal process play itself out, most states are planning even with this decision on mercury to implement the Clean Power Plan in as timely a manner as possible until or unless the courts or Congress tells them to stand down," he said.
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Apple, Tech Companies Developing ‘Green' Internet With Clean Power Plan in Mind
Jun 30, 2015 | BNA Daily Environment Report
By Joseph A. Kuehne
With the Environmental Protection Agency due to release the final version of its Clean Power Plan sometime in August, companies nationwide are exploring renewable energy as one possible component in their plans to meet the limits that rule would set, and tech companies are leading the way.
Greenpeace released a report in May titled “Clicking Clean: A Guide to Building the Green Internet,” in which the organization noted, “Global mobile data was estimated to increase by a whopping 69 percent in 2014, and is expected to maintain its breakneck growth through at least 2019, due to the rapid increase of video streaming to mobile devices and as more of the world's population gains basic access to the internet via smartphones.
“While there may be significant energy efficiency gains from moving our lives online, the explosive growth of our digital lives is outstripping those gains,” the report continued.
David Pomerantz, senior energy campaigner at Greenpeace and lead author of the report, told Bloomberg BNA June 12 that tech companies, such as Apple, Google, Amazon and Facebook, are leading the charge in switching to renewable energy sources.
The EPA's proposed Clean Power Plan (RIN 2060-AR33) would set a unique carbon dioxide emissions rate for the power sector in each state (106 DEN A-4, 6/3/15).
Three Reasons for Switching
According to Pomerantz, there are three main reasons why companies are making the decision to switch to renewable energy.
The first and most obvious reason is financial. Pomerantz said “in many parts of the country, wind and solar are cheaper than fossil fuels.”
In addition, those renewable forms of energy are less subject to rate changes than fossil fuels, he said. Companies that purchase wind and solar energy are “paying for the certainty of knowing what your costs will be.”
The second reason, Pomerantz noted, is “consumers and customers expect environmental responsibility.” In the past, all companies used to get their energy from utilities, he said. With increased control over where energy comes from, consumers have heightened expectations that companies will make choices they interpret as environmentally responsible.
Finally, the third reason Pomerantz listed was employee morale. Particularly in the information technology sector, he said employees have developed an expectation that their employers will be making environmentally responsible choices. Given the competition for talent, especially for IT professionals, the use of renewable energy can be a powerful recruiting incentive, he said.
Apple Is the Industry Leader
According to the Greenpeace report, Apple “continues to lead the charge in powering its corner of the internet with renewable energy even as it continues to rapidly expand. All three of its data center expansions announced in the past year will be powered with renewable energy.”
Pomerantz called Apple's leadership “pretty remarkable over the last couple of years.”
“Apple has procured energy in pioneering ways,” Pomerantz said. Most impressive, he said, has been “the speed with which they've managed to accomplish their goal.”
According to Apple's website, “As of 2014, 100 percent of our U.S. operations and 87 percent of our operations worldwide are powered by renewable energy — which results in fewer carbon emissions. We're tapping into energy from solar, wind, microhydro, biogas fuel cells, and geothermal sources. We're designing new buildings and updating existing ones to use as little electricity as possible. And we're investing in our own Apple onsite energy production as well as establishing relationships with third-party energy suppliers to source renewable energy.”
Moving Forward
According to the Greenpeace report, “The transition to a clean energy economy is underway, driven by the increasingly competitive price of renewable electricity. Electricity is by far the biggest cost for data centers, and concerns about long-term energy costs, along with brand or customer-driven concerns about the environmental impact of online services, are driving data center operators to consider renewable energy alongside energy efficiency as the core strategies for meeting their data center electricity needs.”
“A few years ago, innovation was purchase agreements outside of utilities. That's become pretty commonplace,” Pomerantz said. “Now, IT companies have managed to reach agreements with utilities to provide renewable energy.”
Both Apple and Google have reached agreements with traditional utilities to develop new services through which the company purchases renewable energy directly from local utilities.
Now, the companies are becoming increasingly involved in policymaking. Both companies, along with Facebook, co-signed a letter May 27 opposing a North Carolina bill that would cap utilities' required purchases of renewable energy (104 DEN A-8, 6/1/15).
Pomerantz said this kind of activity is the next logical step for these companies.
“Moving forward, the next level will be policy-related,” he said. To continue making progress, IT companies will need to “engage with legislators, policy-makers, regulators and utilities, themselves.”
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Court Ruling Ups The Bar On Cost-Benefit Projections
Jun 29, 2015 | PoliticoPro
By Eric Wolff
EPA may have a harder time justifying its sweeping air and climate change rules after Monday’s decision in which Justice Antonin Scalia rejected the agency’s bid to limit power plants’ toxic air pollution.
Scalia rejected EPA’s argument that economic effects were irrelevant to its decision to impose the Mercury and Air Toxics Standard, and said the consideration of costs must be a prerequisite to pursuing such a rule.
In making his point, Scalia highlighted the meager benefits tied directly to reductions in hazardous air pollutants such as mercury, while mostly ignoring the public health benefits EPA said would come from other pollution reductions that would be a side-effect of the rule.
And though Scalia did not reject the inclusion of those “co-benefits” in future rule calculations, he could be foreshadowing that possibility.
“They don’t resolve that issue,” said Jacob Hollinger, a partner with McDermott Will & Emery who worked on mercury rule cases for the state of New York. “The majority is very skeptical of co-benefits to justify the rule,” he added, though he noted they stopped short of defining the contours of that cost-benefit analysis.
The order to consider costs was welcome news to Nick Akins, the CEO of utility group American Electric Power, one of the largest coal consumers in the country, and which has shut down several power plants because of the mercury regulations.
“I think the EPA should take that notion to heart,” he told POLITICO. “The message is really on making sure [they] do their cost-benefit analysis.”
The 5-4 opinion in Michigan v. EPA largely rejected EPA’s insistence that costs did not need to be considered in making the rule, but the justices remanded the issue back to a lower court to set those parameters that would account for so-called ancillary benefits.
“Even if the Agency could have considered ancillary benefits when deciding whether regulation is appropriate and necessary — a point we need not address — it plainly did not do so here,” Scalia wrote.
Under a Reagan-era executive order, EPA must calculate the costs and benefits of every major rule. It found that compliance with the mercury rule would cost around $9.6 billion a year while the benefits would come in between $37 billion and $90 billion. However, nearly every dollar of that estimate is a result of reductions of particulate matter and sulfur dioxide that would come when power plants installed pollution controls or decided to shut down.
Just $4 million and $6 million in benefits are because of reductions in mercury and the other directly regulated pollutants.
EPA’s use of co-benefits is standard agency practice that goes back decades, and it drew scrutiny at that March oral arguments from Chief Justice John Roberts, who grilled the government and called the practice an “end-around” other regulatory restrictions.
Scalia did not reject the inclusion of co-benefits, but he pointedly did not include them in his estimation of the value of the rule
“The Agency could not fully quantify the benefits of reducing power plants’ emissions of hazardous air pollutants; to the extent it could, it estimated that these benefits were worth $4 to $6 million per year,” he wrote.
Scalia says the court need not opine on the co-benefit question because the lack of cost consideration of any kind is enough to rule against EPA. In sending the rule back to the D.C. Circuit, he says the EPA must consider costs, but it is not required to produce a cost-benefit analysis.
“So if they go back and they reconsider costs, there seems to still be an open window that would allow EPA to say, ‘Well we’ve considered the costs in this context. We’re also considering the ancillary benefits and conclude that it’s still necessary and appropriate to regulate [hazardous air pollutants] from this industry.’” said Bill Bumpers, a partner with Baker Botts who represents electric generating companies. “That window has been left open.”
Some EPA critics also argue that if the agency continues to include ancillary benefits, it should consider additional costs as well.
“If the EPA considers co-benefits, it also likely should consider the co-costs of its rule (such as the costs to the manufacturing sector of higher electric rates),” said Brian Potts, a partner at Foley & Lardner who represents some Midwest generators. “In other words, the EPA is going to have a mess on its hands when it has to try to go back and justify its rule based on the rule’s costs and benefits.”
This could signal problems for the EPA in developing future rules, and it may fuel additional criticism of the analysis the agency has used to bolster the Clean Power Plan, its proposed rules to limit carbon dioxide emissions from power plants in the name of addressing global climate change.
The climate rule’s regulatory analysis describes costs and benefits at a few key points in the compliance period. In 2025, for example, the agency calculated that compliance in 2025 will cost $4.6 billion to regulated entities in the United States but the direct benefits of CO2 reductions will reach $25 billion.
However, the agency calculated the benefits by using the “social cost of carbon,” which attempts to put a dollar figure on the benefits of reduced global warming from reduced carbon dioxide emissions. Republicans in Congress are critical of the concept of a social cost of carbon and often accuse the administration of developing it improperly. A GAO report published in August found that federal agencies followed appropriate procedures.
In the wake of Monday’s mercury ruling, EPA could respond by making more effort to calculate direct costs. No one disputes whether reducing mercury, acid gases, or the other pollutants regulated by MATS and the Clean Air Act could have health benefits, but the agency never quantified them in the rule. EPA spokeswoman Melissa Harrison said the agency is still reviewing the rule, and thus couldn’t say if more direct benefits would be assessed. But others expect more benefit quantification in future rules.
“They may make the direct benefits as expansive as possible,” said Thomas McGarity, a law professor at the University of Texas at Austin. “That means a whole lot more time spent on looking at the studies with the acid gases and all that, and also a whole lot more spinning of the analysis to gin up big numbers.”
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White House 'disappointed' With Ruling Against EPA
Jun 29, 2015 | The Hill - E2 Wire
By Jordan Fabian
The White House on voiced its disappointment Monday over a Supreme Court ruling against the Obama administration’s landmark air pollution rule.
“Obviously we’re disappointed in the outcome,” press secretary Josh Earnest said, adding that the administration is still reviewing the decision. In a 5-4 ruling, the high court decided the Environmental Protection Agency did not properly weigh the cost of regulations when it crafted tough new rules on toxic emissions from coal-fired power plants.
Earnest said the decision won't hold back the administration’s broader clean power initiatives.
“There is no reason this court ruling should have any impact on the ability of the administration to develop and implement the Clean Power Plan," he said.
Senate Majority Leader Mitch McConnell (R-Ky.) called the ruling a “a cutting rebuke to the administration’s callous attitude” toward coal-producing states and said there is “no reason” for governors to comply with Obama administration’s climate regulations before the courts have the chance to weigh in.
The ruling does not make McConnell’s criticism “accurate or in the direct interest of the American public,” Earnest said. “In both cases, he is wrong.”
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Court Emboldens GOP On Climate Regs
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
The Supreme Court emboldened opponents of the Obama administration’s environmental agenda Monday with its ruling against a major air pollution rule.
Republicans and others who have railed relentlessly against the Environmental Protection Agency (EPA) in recent years are touting the decision as a validation of their accusations of executive overreach — and vowing to keep up the battle.
While the ruling only directly affects the EPA’s limits on mercury and other toxics air pollutants from coal-fired power plants, opponents see it as a major win that would also hamper Obama’s most significant environmental rule, setting carbon limits for power plants.
The Supreme Court said that the EPA did not properly consider the costs of the regulation before it decided to write it, as required by the Clean Air Act. The rule is still in force while a lower court decides how to enforce the decision.
“Obama administration officials like to pretend that the costs of their massive and regressive regulations either don’t exist or don’t matter,” Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement.
“Today’s Supreme Court decision represents a cutting rebuke to the administration’s callous attitude,” he said.
McConnell added that the ruling backs up his advice to state governors to ignore the power plant regulations, since the mercury rules have already caused plant shutdowns and job losses.
“Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out as we saw today,” he said.
House Majority Leader Kevin McCarthy (R-Calif.) said the decision justifies the House’s repeated votes against EPA rules, like last week’s bill to weaken and delay the carbon rules.
“The House has consistently worked to increase to ensure the American people have a strong voice in the development of regulations that impact their way of life,” McCarthy said.
“The Supreme Court’s decision today vindicates the House’s legislative actions to rein in bureaucratic overreach and institute some common sense in rulemaking.”
“Today’s decision is an indictment of this Administration and its reckless abuse of power,” said Rep. Rob Bishop (R-Utah).
Justin Savage, an energy industry attorney at Hogan Lovells, said the ruling is a “fundamental shift in administrative law,” the legal area dedicated to executive branch regulation.
“It essentially elevates cost analyses that were typically done in the back room at [Office of Management and Budget] into the courtroom,” he said. “The court took a very open-ended phrase, ‘appropriate and necessary,’ and read that to compel EPA to consider costs.”
Savage said the ruling is likely to lead to a sharp increase in litigation concerning whether and how federal agencies analyze the costs of their decisions, including the carbon rules.
But others said the Supreme Court issued a very narrow ruling that only affects the small section of the Clean Air Act under which the EPA wrote its rule.
White House press secretary Josh Earnest told reporters Monday that the decision does not affect the carbon rule.
“There is no reason this court ruling should have any impact on the ability of the administration to develop and implement the Clean Power Plan,” he said.
Ricky Revesz, director of the Institute for Policy Integrity at the New York University Law School, had a similar conclusion.
“Nothing in this decision would in any way call into question the legal legitimacy of the Clean Power Plan,” he said. -
Senate Democratic Caucus Lays Out Energy Policy Goals, Seeks Governors' Input
Jun 30, 2015 | BNA Daily Environment Report
By Ari Natter
Clean-energy investment and increased physical and cyber security are among the energy goals of the Democratic caucus, all 44 Senate Democrats wrote in a letter June 29 to the nation's governors.
“We believe it is time for the U.S. Senate to consider the first update to our nation's energy policies in almost a decade,” the group said in the letter spearheaded by Sen. Maria Cantwell (D-Wash.), top Democrat on the Energy and Natural Resources Committee.
The letter, which comes as the committee aims to unveil broad energy legislation in July, previews the minority party's priorities, and comes as Republican and Democrat committee staffers are in the midst of negotiations in hopes of producing a bipartisan bill.
Other goals laid out in the letter include updating “energy infrastructure,” reducing pollution and waste, and investing in research and development. Democrats plan to release a minority energy bill in July, Cantwell previously told Bloomberg BNA (123 DEN A-6, 6/26/15)(123 DEN A-6, 6/26/15).
“The need for clean, reliable and efficient supplies of energy is becoming closely intertwined with our economic growth and global competitiveness,” Cantwell said in a statement. “We need to keep investing in cleaner, lower-cost energy solutions so that America won't be left behind.”
In addition, the senators wrote that they are seeking input from the nation's governors “to help guide our consideration of reasonable, commonsense updates to our nation's energy policy.”
“Your feedback will help us collectively craft a path forward on an energy policy that unleashes America's limitless capacity for innovation, rewards middle-class families for making smart energy choices, and keeps our air and water clean for generations to come,” said the letter.
The letter was also signed by Independent Sen. Angus King (Maine).
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Electricity Generation Shifts From Coal To Gas, Wind, Solar Power, GAO Finds
Jun 30, 2015 | BNA Daily Environment Report
By Rebecca Kern
Natural gas, wind and solar power provided a growing share of the country's electricity generation, while the share of coal and nuclear power generation declined from 2001 to 2013, a Government Accountability Office report found.
The retirement of more coal-fueled power plants in the past decade has contributed to the decline of coal-powered electricity generation in the U.S., and the trend is likely to continue, the GAO said.
Meanwhile, generating capacity (the maximum amount of electricity a generator can produce) and actual generation (the actual amount of electricity a generator produces at a specific time) for natural gas has increased dramatically from 2001 to 2013. During this time, natural-gas generating capacity increased by 181,000 megawatts, and made up 72 percent of the new generating capacity added. The amount of actual electricity generation from natural gas grew from 17 percent in 2001 to 26 percent in 2013.
Similarly, from 2001 to 2013, the generating capacity and actual generation from wind and, to a lesser amount, solar power plants grew in the U.S. The amount of actual electricity generation from wind and solar increased from slightly over zero percent in 2001 to 4 percent in 2013, the GAO said.
The GAO examined the shift in energy mix used to generate electricity at the request of House Science, Space and Technology Committee Chairman Lamar Smith (R-Texas), Reps. Cynthia Lummis (R-Wyo.) and Gary Palmer (R-Ala.) and Sen. Jeff Sessions (R-Ala.).
Use of Coal on Decline
The generating capacity and actual generation from coal-fired power plants declined from 2001 to 2013. The generation has particularly declined since 2008 as natural gas prices dropped, making coal-fired plants less economically viable. The amount of actual electricity generation from coal fell from 51 percent in 2001 to 40 percent in 2013, the GAO found.
Other contributing factors to the decline include retirement of plants, as well as a shift away from using coal plants to generate baseload electricity. Instead, some regions are using these plants to generate electricity just during peak demand, or when other electricity resources aren't available, the agency said.
Electricity Reliability, Pricing
The GAO also found that these changes in generation and consumption have led system operators to make changes to maintain reliability of the electricity grid.
For example, natural gas is harder to store on-site than coal, oil and nuclear power, so these natural-gas-fueled power plants rely on real-time delivery of natural gas from pipelines. As a result, some regions have experienced challenges in maintaining higher demands for natural gas. System operators in turn had to rely on other, more readily available sources such as coal and oil at times of high demand, as well as demand-response programs.
Also, the increased use of wind and solar power has increased the operational uncertainty for electricity generation. In response, system operators alter the operation of traditional power plants to offset wind and solar electricity fluctuations.
Separately, the increased gas-fueled generation has affected electricity prices, following the spikes and falls of natural gas prices. Meanwhile, increased use of wind and solar power has had varied effects on consumer electricity prices, based on the region and over time, depending on the relative cost of procuring wind and solar compared to other electricity sources, the GAO said.
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Supreme Court’s Ruling Comes Too Late For Coal
Jun 29, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama’s opponents won a Supreme Court skirmish in the “war on coal” Monday, but the ruling blocking his mercury pollution rule won’t do anything to reverse coal’s waning role in the nation’s power supply.
And on top of that, legal experts don’t expect the decision to hamper the administration’s plans for landmark climate regulations that are set to further cement the decline of the fuel that only a few years ago dominated the industry.
For utility giant American Electric Power and others in the power sector, the judgment on the mercury rule that started to take effect in April comes too late to save the dozens of plants that already closed, or are slated to in the next several months.
“We’re not bringing them back,” Nick Akins, AEP’s CEO, president and chairman told POLITICO. “Once that ball gets rolling, it’s not going to change.”
The ruling that clipped an administration regulation on mercury pollution stuck to a narrow path — whether EPA should have considered the costs of the rule in an early analysis rather than later in the rulemaking process — but didn’t reach into the issues expected in the courtroom battles to come over one of Obama’s priorities: battling climate change.
Obama has pushed climate change to the top of the White House agenda for his second term, calling on his EPA to propose the first-ever U.S. measures to curtail emissions of the greenhouse gases that scientists say are raising temperatures and lifting sea levels.
And though Republicans and coal-state politicians welcomed the 5-4 ruling that remanded the EPA rule back to a lower court for further review, little has changed for the prospects of the agency’s final climate change power plant rules due out later this summer, according to legal experts.
“I do think this was a body blow, but [it’s] a long way from a death blow when it comes to cleaning up coal power plants,” said Frank O’Donnell, president of the green group Clean Air Watch.
The opinion written by Justice Antonin Scalia rapped EPA for not properly taking the costs of its regulation into effect early enough, and it raised questions on whether “ancillary,” or additional benefits not directly related to the rule, should be counted.
But Scalia’s majority opinion in Michigan v. EPA doesn’t address whether EPA has the authority to interpret a contradiction in the 1990 Clean Air Act amendments to launch a regulation that will alter how the country’s energy companies’ produce electricity.
“I frankly don’t think this opinion has great implications for [Obama’s] Clean Power Plan based on what I anticipate to be the direct statutory challenges to the plan,” said Bill Bumpers, who heads the climate change practice for utility companies at the law firm Baker Botts.
And the White House insisted after the ruling that EPA’s final carbon dioxide rules would not be affected by the Supreme Court ruling on the mercury and air toxics rule.
“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.
Not everyone agreed that the mercury ruling had little bearing on the carbon rules. Hal Quinn, president and CEO of the industry group National Mining Association, said the court’s opinion was a shot across EPA’s bow for exceeding its authority under the Clean Air Act.
“I think it should give EPA considerable pause about the current design and structure of both its carbon dioxide rules for power plants,” he said, referring to the pending mandates for both existing and future plants.
To be sure, the mercury and carbon regulations are inextricably linked because of language in the Clean Air Act. Early legal challenges to the carbon rules argued that the law says EPA cannot limit greenhouse gases from power plants if it also regulates power plants with the mercury rule, known as the Mercury and Air Toxics Standard.
EPA and other supporters of the carbon rules have countered that an unusual legislative glitch was created when the language in question was signed into law, allowing EPA to regulate both mercury and carbon dioxide.
Ultimately, a circuit court declined to weigh in on the matter because the rule is not yet finalized. But that only delays the clash over carbon, and EPA’s foes are not shying away from another lawsuit.
West Virginia Attorney General Patrick Morrisey, whose state was among those that challenged the mercury rule, warned that the Supreme Court’s ruling showed the justices will not tolerate federal overreach through EPA regulations.
“If the EPA ignores the Supreme Court’s clear warning today and continues to press forward with these illegal, costly rules, my office will challenge those rules in court, and we intend to win — again,” Morrisey said in a statement.
Still, Sen. Majority Leader Mitch McConnell noted that mercury regulation had already forced many plants into retirement, and reiterated his warning to governors around the country not to join the EPA’s climate change plan.
“Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out as we saw today,” he said in a statement.
AEP’s Akins hoped the EPA would become more transparent in its analysis — and that it would better plan for the effects on companies.
“You really need to have an adequate review before you have an impact on the industry,” he said. “That drives a large message for [the climate rule.]”
Now the matter falls back to the D.C. District Court of Appeals — whose ruling upholding the mercury rule was reversed by the Supreme Court on Monday — to decide how to move forward.
The circuit could keep the rule in place while EPA works out a new initial cost-benefit analysis and moves the rule forward. There is precedent for such a decision, according to Graham McCahan, an attorney with the Environmental Defense Fund. The circuit court previously struck down a George W. Bush-era rule governing air pollution that crosses state lines, but kept it in place while the Obama administration wrote a new version that ultimately won the backing of the high court.
Or the circuit court might instead vacate the mercury rule and force EPA to essentially start from scratch.
Brian Potts, an attorney who represents utilities and power providers at Foley & Lardner, said he believed the Supreme Court indicated the circuit court should vacate the rule.
Ironically, he added, that could actually benefit the carbon rules by making moot the argument raised by West Virginia, Murray Energy and other EPA critics.
“EPA is going to be facing a difficult decision: try to keep its mercury regulation in place for the next few years or forego mercury regulation so that the Clean Power Plan can move forward more easily,” Potts wrote in an email.
Bumpers agrees that vacating the mercury rule would at least “temporarily” make the challenges to the carbon rule moot.
He added that it is unclear right now whether EPA’s foes could bring the same legal challenge in the event that the carbon rules are finished before the mercury rules. There are significant and untested legal issues with such a maneuver.
Any conjecture about what will happen are “premature” because the mercury rule isn’t yet “out of the way,” according to McCahan.
“I think that will just get worked out in the context of that [carbon rule] litigation when that happens after the final rule comes out,” he said.
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A Great Day For Coal? Not Exactly.
Jun 29, 2015 | Politico
By Michael Grunwald
It won’t get as much attention as today's perplexing Supreme Court decision blocking mercury limits for coal-fired power plants, but the government quietly revealed last Thursday that the U.S. electricity sector has reached a major milestone. Coal, America’s number-one source of power since the feds began keeping track in 1949, fell to number two behind natural gas in April.
Meanwhile, the latest official data on power generating capacity suggest the trend away from coal is only accelerating. In the first five months of 2015, U.S. utilities added 2.1 gigawatts of new wind and solar capacity, 1.2 GW of new gas capacity, and 0 GW of new coal. As I wrote at length last month, the question is not whether the U.S. coal industry will continue to decline, but how fast.
Today’s 5-4 Court ruling has been framed as a dramatic victory for coal, but the truth is it probably won’t do much to arrest that decline. Industry officials and Republican politicians have hailed the decision as a harsh rebuke to President Obama’s Environmental Protection Agency, and the majority opinion authored by the acerbic Justice Antonin Scalia certainly reads that way. But it’s ultimately a narrow decision that should have a relatively modest impact on the U.S. grid.
The instant reaction to the Court has focused on Scalia’s complaints that the EPA failed to consider the costs of its rule, particularly his suggestion that the agency engaged in the regulatory equivalent of buying a Ferrari without checking the price. But the EPA did conduct an intensive cost-benefit analysis of its mercury rule before imposing it, concluding that the economic benefits (not to mention the thousands of lives it would save) would far exceed the costs, and the majority did not question that analysis. It merely questioned the timing of that analysis, ruling that the EPA should have considered the costs of the regulation before making its initial decision to regulate back in 2000. The Court didn’t find that the agency ignored costs, just that it considered them too late in the process.
As Justice Elana Kagan pointed out in her dissent, that “peculiarly blinkered” analysis “would put the cart before the horse.” The EPA had no way of knowing exactly how much its regulation would cost before designing its regulation, but it did figure that a toxic air pollutant that was poisoning Americans and driving a childhood asthma epidemic probably ought to face some sort of regulation under the Clean Air Act. So it decided to regulate, knowing that it would analyze the costs in great detail later. A better analogy than buying the Ferrari without knowing the price would be visiting a doctor about back pain without knowing the precise cost of back surgery. That early in the process, nobody knows what kind of treatment will eventually be needed.In any case, the Court has essentially put the ball back in the EPA’s court, and the agency shouldn’t have too much trouble demonstrating that the costs of the rule (which it has already calculated are much less than the benefits) are not too high to go forward with the rule. The questions are whether the EPA can comply before President Obama leaves office, which seems likely, and whether lower courts will allow the mercury rule to remain in place until then, which seems unlikely.
But even if the mercury rule dies, there are only 22 coal plants in the U.S. that are still operating without mercury controls, according to SNL Energy. Since the EPA finalized the rule in 2012, most of America’s dirtiest coal plants have either been scheduled for retirement or retrofitted with modern control technologies. Even the staunchest coal advocates seemed to acknowledge today’s ruling came too late to reverse the industry’s decline. Senate Majority Leader Mitch McConnell complained that “much of the damage has already been done,” while House Speaker John Boehner bemoaned that “we can’t erase the damage the EPA has already caused by shutting down coal plants and putting thousands of Americans out of work.”
Really, though, the EPA is just a part of the marketplace’s war on coal. In 2005, cheap coal provided 50% of our power, expensive gas provided 19%, and exorbitant wind and solar provided 2%. But coal has gotten much costlier as it’s been forced to account for much more of its mess, not just mercury but soot, smog, sulfur dioxide, and other air and water pollutants, with Obama’s plan to regulate carbon looming as the next big legal battle. At the same time, the costs of gas, wind and solar have plummeted in recent years. In April, coal was down to 30% of utility generation, gas was up to 31%, and wind and solar were up to 9 percent. The Sierra Club has helped retire 195 coal plants since launching its Beyond Coal campaign in 2010; it’s almost on track for its goal of shutting down half the fleet by 2017.A Supreme Court that denied EPA’s power to regulate coal pollution could conceivably reverse that trend, but that’s not what the Court did today. It provided some comfort to Americans who would equate a decision to protect children from asthma with a decision to buy a fancy sports car. But it didn’t put coal back in the driver’s seat.
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Greens Want EPA To Save Air Pollution Rule
Jun 29, 2015 | The Hill - E2 Wire
By Timothy Cama
Environmental groups are pushing the Obama administration to revive the power plant air pollution regulations the Supreme Court overturned on Monday.
Greens said the court’s 5-4 ruling requires the Environmental Protection Agency (EPA) to merely file paperwork to formally consider the costs of regulating mercury, arsenic, acid gases and other pollutants for coal-fired power plants.The decision leaves the EPA’s rule in place while the Court of Appeals for the District of Columbia Circuit decides how the EPA can move forward.
The EPA considered the costs of the rule and concluded that it had a cost-benefit ratio of about 1 to 10. But it did not account for costs when determining whether regulating at all would be “appropriate.”
“This administration can and should complete its cost analysis promptly, and continue safeguarding public health and saving lives,” John Walke, a senior attorney at the Natural Resources Defense Council, said in a statement.
“The court’s ruling leaves the EPA rule in place, and we are confident the agency will meet its burden in justifying these important health standards, because the benefits to the American people overwhelmingly outweigh industry compliance costs,” he said.
A top Democratic senator agreed with that assessment.
“EPA should move quickly to incorporate its cost analysis into the rule, as called for by the Supreme Court, so that this critical public health safeguard, which prevents premature deaths, heart attacks, asthma attacks and emergency room visits, can remain in place to protect the American people,” said Sen. Barbara Boxer (D-Calif.).
“The court gave EPA the ability to finalize these critical public health protections once and for all,” Lisa Garcia, an attorney with Earthjustice, said in a statement. “Now, EPA must act quickly. Thousands of lives are at stake. Further delay is not an option.”
The Sierra Club said the ruling puts the health of many Americans, including children and pregnant women, at risk.
“The EPA and the Obama administration must now quickly propose revised safeguards that restores at least the same level of protections,” said Mary Anne Hitt, director of the group’s Beyond Coal program. “It’s time to act to ensure progress made in cleaning up noxious pollution isn’t stalled any further, so that children across the America can grow up safe and healthy.”
The agency has not decided how it will proceed and whether it will try to keep the rule in place. But spokeswoman Melissa Harrison said the 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.”
Zygmunt Plater, an environmental regulation professor at Boston College Law School, said the ruling is only a temporary setback for the EPA.
“The EPA already has the data that is needed — it just has to go back and amend the rule-making process slightly to take into account the later evidence,” Plater said.
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Supreme Court Ruling Prolongs Uncertainty Over Fate Of EPA Utility MACT
Jun 29, 2015 | InsideEPA
By Anthony Lacey
The Supreme Court's 5-4 ruling faulting EPA for not considering costs when it first decided to craft a maximum achievable control technology (MACT) air toxics rule for utilities prolongs uncertainty over the eventual fate of the rule, as an appellate court will now have to weigh whether to vacate the regulation or remand it to the agency.
The June 29 decision in Michigan, et al. v. EPA, et al., authored by Justice Antonin Scalia, returns litigation over the rule to the U.S. Court of Appeals for the District of Columbia Circuit, which had previously issued a 2-1 decision siding with the agency's decision to not consider costs. EPA argued that it considered costs when it set the emission limits in the MACT, but the high court said costs should be have been assessed before starting the rulemaking.
Scalia said that even though the Clean Air Act is silent on whether EPA should have weighed costs in issuing a finding that it was “appropriate and necessary” to regulate utilities with a MACT, it should have done so.
“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,” says his opinion.
“The Supreme Court ruling did not invalidate the rule -- it merely remanded the rule back to the [D.C. Circuit], which can now either vacate the rule, or opt for the 'remand without vacatur' technique, leaving the rule in place while the EPA makes required changes,” said Richard Revesz, director of the Institute for Policy Integrity and dean emeritus of New York University Law School, in a June 29 statement.
EPA Administrator Gina McCarthy in June 29 remarks at an event at the National Zoo in Washington, D.C., also cautioned that under the Supreme Court ruling “nothing has been vacated, the rule still stands.”
While she said the agency is still reviewing the majority's opinion, which includes a concurring opinion from Justice Clarence Thomas, she added, “It's not a set-back, it's an extra step.”
EPA's utility MACT has already taken effect and many power plants have already either shuttered or taken the necessary starts to comply, while others won a one-year compliance extension to April 2016. A former Department of Justice (DOJ) official suggests that parties involved might seek swift resolution of the case.
Whatever the D.C. Circuit decides on remand will be key to determining whether EPA can complete its response to the high court ruling before President Obama leaves office. If the court simply orders EPA to conduct some form of cost-benefit analysis without vacating the rule, “it could be a relatively short matter,” the source says.
Cost-Benefit Analysis
EPA already has much of the information on that issue because it undertook extensive cost-benefit reviews when crafting the actual standards in the MACT, also known as the mercury and air toxics standards (MATS). As a result, observers have suggested that the agency could take the cost-benefit review used in writing the rule and have that satisfy the cost analysis requirement for the appropriate and necessary finding.
“But, if EPA has to go back and justify a new MATS, it could be significantly longer,” the former DOJ official says. A lengthy rulemaking could continue through to the next presidential administration.
Even if the agency manages to craft a cost-benefit review that satisfies the D.C. Circuit and the rule remains in place, the MACT still faces other legal challenges that will extend the uncertainty over its fate. For example, power generators recently sued the agency over its denial of a petition to reconsider parts of the rule.
Speaking to reporters at the National Zoo event, McCarthy said, “We don't know what work we'll have to do yet” in response to the high court's ruling, which does not say how EPA should do the cost review.
For the appropriate and necessary finding, Scalia said EPA “must consider cost -- including, most importantly, cost of compliance -- before deciding whether regulation is appropriate and necessary. We need not and do not hold that the law unambiguously required the Agency, when making this preliminary estimate, to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”
The DOJ source adds that Scalia's opinion does not appear to address whether EPA can consider ancillary benefits in its cost review -- an important issue because much of the rule's benefits stem from cutting conventional pollutants and not air toxics -- meaning “that's something EPA will have to think about” when it does a new cost analysis.
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 Ginsburg, 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.”
Ruling Reaction
Response to the ruling divided among expected lines from EPA's supporters and opponents, with industry groups and GOP lawmakers arguing that the Supreme Court has undermined the basis for the entire rule while environmentalists expressed disappointment but said the rule might ultimately survive.
U.S. Chamber of Commerce President and CEO Thomas J. Donohue said, the court “made it clear that EPA cannot turn a blind eye when it imposes massive costs on our economy in return for minimal environmental benefit. . . . Today’s decision underscores how important it is that unprecedented future EPA rules such as the Clean Power Plan, which also reaches beyond the agency’s statutory power, not be implemented until the courts determine their legality.”
The Clean Power Plan includes EPA's pending policies to curb greenhouse gases (GHGs) from power plants, which critics tried to block by filing an ultimately unsuccessful D.C. Circuit suit over the proposed versions of the GHG rules.
Mike Duncan, president and CEO of the American Coalition for Clean Coal Electricity, hinted at the future work EPA will have to do on the utility MACT and urged the agency to address industry's criticisms.
“Thanks to today’s ruling, the EPA will finally have to listen to the nation’s concerns with this poorly constructed, costly rule. Elitist ideas usually carry lofty price tags. When EPA rewrites this regulation, we can only hope it uses real costs and benefit figures rather than those pulled out of its magic bag of tricks,” he said.
Senate Environment & Public Works Committee Chairman James Inhofe (R-OK), a critic of many EPA rules, said. “I applaud the court’s decision to put a halt to reckless rule making that does not take into account commonsense considerations, such as cost. This serves as a reminder that the agency should be implementing laws written by Congress, instead of rewriting those laws to fit the president’s extreme environmental agenda.”
Rep. Frank Pallone (D-NJ), ranking member on the Energy & Commerce Committee, countered that the rule would have massive health benefits that far outweigh the costs to industry. “Although I am disappointed by the Court's decision today, I am confident that EPA will eventually succeed in regulating mercury from power plants, which are the largest source of man-made mercury emissions in the U.S. and the cause of many other adverse health effects. These standards are clearly ‘appropriate and necessary’ and further analysis will show that to be the case,” he said. The League of Conservation Voters (LCV) also suggested EPA could ensure the rule's survival on remand, with LCV Board Chair Carol Browner saying, “It’s an unfortunate decision that puts polluter profits over public health, but it doesn’t remove EPA’s fundamental authority to act to protect public health from dangerous pollutants and EPA should continue to work to find a solution that addresses this toxic pollution.”
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Greens Urge Quick EPA Reaction To Mats Rejection
Jun 29, 2015 | PoliticoPro - Afternoon Energy
By Darren Goode
“Unfortunately the long road to regulating mercury will continue,” Sen. Ed Markey said. “It is dangerous toxic pollutant, and I urge the EPA to immediately reevaluate the rule to protect the health of Americans, especially our children.”
Indeed, one of the questions will be how quickly can EPA can address the court’s concerns, and whether the Obama administration can finalize the rule before the next administration takes over.
“The court’s ruling leaves the EPA rule in place, and we are confident the agency will meet its burden in justifying these important health standards, because the benefits to the American people overwhelmingly outweigh industry compliance costs,” said John Walke, senior attorney and clean air program director at the Natural Resources Defense Council. “This Administration can and should complete its cost analysis promptly, and continue safeguarding public health and saving lives.”
Former Clinton EPA Administrator Carol Browner said the court’s ruling is “an unfortunate decision that puts polluter profits over public health, but it doesn’t remove EPA’s fundamental authority to act to protect public health from dangerous pollutants and EPA should continue to work to find a solution that addresses this toxic pollution.” -
Implementing Jurisdiction Rule Will Fall On States Due to House Rider, Attorneys Say
Jun 30, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
Implementing the newly published Clean Water Act jurisdiction rule will fall to the states if Congress succeeds in blocking the Environmental Protection Agency from using federal funds to “implement, administer and enforce” it, water attorneys tracking the rulemaking told Bloomberg BNA.
Absent any guidance on the rule's many definitions, the lawyers say, states would be mired in confusion trying to interpret and implement the rule, and possibly be vulnerable to citizen lawsuits if they choose against complying.
The EPA and the U.S. Corps of Engineers jointly published the final clean water rule, also known as the waters of the U.S. rule (RIN 2040-AF30), in the Federal Register on June 29. The rule takes effect Aug. 25, but will be considered final on July 13 for the purposes of judicial review (80 Fed. Reg. 37,054; (124 DEN A-13, 6/29/15).
Following the July 4 recess, the House is set to vote on the fiscal year 2016 spending bill (H.R. 2822) for the Interior Department and the EPA that includes a rider barring the agency from using funds in this year or any other fiscal year to “develop, adopt, implement, administer, or enforce” any change to regulations or guidance in effect on Oct. 1, 2012, pertaining to the waters of the U.S. definition. The appropriations bill takes effect Oct. 1 when fiscal year 2016 begins.
At least 18 states filed lawsuits against the agencies over this rulemaking on the day it was published, citing federal overreach (see related story).
“The rule has already been developed, adopted and published so the rider would only apply come Oct. 1 to implementing, administering and enforcing the rule,” Vermont Law School Professor Patrick Parenteau said.
Implementing Rule a ‘Challenge.'
State water officials say implementing the rule in the absence of the EPA, corps guidance would be a challenge.
“States will be left on their own now to interpret this rule in the absence of guidance on say how to identify the ordinary high water mark in tributaries,” Julia Anastasio, executive director and general counsel for the Association of Clean Water Administrators, said. “And it's not just guidance, but funds for training too.”
House Appropriations Committee spokeswoman Jennifer Hing sidestepped the question of whether this rider would shift the responsibility of implementing the rule on the states.
“The provision prohibits federal funding to implement the rule,” she said, adding that “the bill does not impact state and local funds.”
Jon Devine, senior water attorney with the Natural Resources Defense Council, said the rider would “muck up things substantially” for states. As an example, he said the limitation on the use of funds in the funding bill to “implement, administer, or enforce” the new rule could directly affect states, “because the appropriations bill provides funds to EPA to grant to states to run their clean water programs.”
Lowell Rothschild, senior counsel in the Washington D.C. office of Bracewell & Giuliani LLP, agreed with Devine to the extent that the appropriations bill would provide the EPA funds to pass on to the states to implement programs would be affected by the new clean water rule.
“States would be in a tough spot trying to figure out what they could or couldn't fund using those pass-through monies,” said Rothschild, noting that the states wouldn't be affected by federal dredge-and-fill permits issued under Section 404 of the Clean Water Act, as they are for the most part issued by the corps, which is not funded under the same bill as the EPA and Interior.
State NPDES Permits Affected
However, the revised definition of the waters of the U.S. rule, as published June 29, applies to all Clean Water Act programs, including the National Pollutant Discharge Elimination System permitting program under Section 402, that the EPA has delegated to 46 states to operate.
Parenteau, who also has served as regional counsel for EPA Region I from 1984 to 1987, said the impact on states is “purely hypothetical,” because the White House has said it will veto the spending bill for many reasons, including the rider on the clean water rule.
“But hypothetically the rider will create chaos in the sense that the rule is on the books, and states will have to decide how to apply it in the context of the NPDES permit program, for example,” he said. “Delegated states will not be able to opt out of the program.”
If the EPA says the permit program applies to waters covered under the final rule, then states will have to correspondingly adapt their programs to comply, Parenteau added.
Speculating further, Parenteau said the House bill rider doesn't leave the states open to legal challenge, “but it does expose the regulated community to potential citizen suits for unpermitted discharges to waters covered by the rule.”
Rothschild said he doesn't think that third-party lawsuits against states failing to comply with the clean water rule would be successful. That is because “the Congressional language in the rider, being later in time than the Clean Water Act and the Clean Water Rule, would likely be viewed by a court as persuasive and not overridden by it during any such citizen suit,” Rothschild said.
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At Least 18 States File Challenges, Saying Clean Water Rule Exceeds Legal Authority
Jun 30, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
A final rule clarifying the scope of Clean Water Act jurisdiction was challenged by at least 18 states upon its publication in the Federal Register June 29 Texas v. EPA, S.D. Tex., No. 15-00162, complaint, 6/29/15;Ohio v. EPA, S.D. Ohio, No. 15-02467, complaint, 6/29/15; Montana v. EPA, D.N.D., No. 15-00059, 6/29/15).
The final rule, also known as the waters of the U.S. rule (RIN 2040- AF30), was jointly published by the Environmental Protection Agency and the U.S. Corps of Engineers (see related story). It will take effect Aug. 25, but will be considered final on July 13 for the purposes of judicial review (80 Fed. Reg. 37,054; (124 DEN A-13, 6/29/15).
Alleging federal expansion over state waters, 18 states as of press time had filed lawsuits in three different federal courts across the country. More lawsuits were expected not just from states, but also from the regulated industry, including the American Farm Bureau Federation.
The states largely claim the new rule violates the Administrative Procedure Act, the Clean Water Act, the National Environmental Policy Act and Article 1, or commerce clause of the U.S. Constitution that governs environmental laws.
‘Impermissible Expansion' of Jurisdiction
“The Final Rule is an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners,” Texas, Mississippi and Louisiana alleged in their joint complaint in the U.S. District Court for the Southern District of Texas.
Ohio and Michigan filed their joint complaint in the U.S. District Court for the Southern District of Ohio. The two Great Lakes states alleged the “renewed effort” by the EPA and the corps, in the face of contrary statutory language and U.S. Supreme Court precedent, “to expand their regulatory scope far beyond those waters, and to claim authority over areas that the Clean Water Act left to state supervision and care.”
They said the rule doesn't limit regulatory authority to navigable waters, waters and wetlands that abut and maintain a continuous surface connection with navigable waters or to continuously flowing streams that feed directly into navigable waters.
“Rather, in sweeping terms, it purports to extend federal regulatory jurisdiction over broad swaths of the country, including vast areas within the States of Ohio and Michigan, that in no way constitute navigable, potentially navigable, or interstate waters—even in various instances reaching land that is typically dry,” the two states said.
Montana along with 12 other states, and the New Mexico Department of the Environment and the New Mexico State Engineer, filed their joint
lawsuit in the U.S. District Court for the District of North Dakota, claiming the final rule would harm states in their capacity as owners and regulators of the waters and lands within their respective boundaries. New Mexico is one of four states not delegated to run its Clean Water Act National Pollutant Discharge Elimination System permitting program governing discharge of pollutants into federally protected waters.
Taking Over State Management
“The States’ use and management of the waters and lands they own or regulate will be subject to greater federal regulation under the Final Rule,” said Montana on behalf of the 12 states, and the New Mexico agencies.
For the first time, the final clean water rule defines tributaries and limits statutory coverage for wetlands and waters adjacent to navigable waters and their tributaries. The rule also allows the agencies to determine jurisdiction on a case-specific basis by assessing the impact isolated wetlands and waters have on downstream navigable waters, either singly or in combination with similarly situated waters and wetlands.
The rule's definition of what constitutes a water of the U.S. under the Clean Water Act applies to all clean water programs, including discharge permits and dredge-and-fill activities in wetlands and other waters.
Steve Miano, attorney with Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, said that the lawsuits represent a broad-based attack on the rule in terms of procedure and substance.
Question of Deference
Miano, who chairs the American Bar Association Section of Environment, Energy and Resources, said it will be interesting to see how the courts treat the question of deference to the EPA and the corps in this challenge. The Supreme Court has ruled that in situations where the law is unclear, deference should be given to a federal agency's reasonable interpretation Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).
“I've argued in the past that this ought to be a good case for deference given all of the efforts by EPA and the corps. However, notions of deference could be shifting given recent U.S. Supreme Court opinions. Last week's decision on health care reform seemed to limit deference to instances where Congress clearly left an open question, to be filled in by an agency in regulations. More starkly, today's opinion in Michigan v. EPA suggests that the more conservative members of the Court would consider doing away with deference as unconstitutional. One could argue that definitions of the waters of the US were not left to EPA to define,” Miano said. “We will see.”
Lowell Rothschild, senior counsel in the Washington, D.C.-based Bracewell & Giuliani LLP, said states can claim “unique harm” because the Clean Water Act preempts state authority over waters.
“In general, a broader definition of ‘the waters of the United States' will place more waters under federal authority. On the other hand, a more limited definition of ‘the waters of the United States' will place more waters under state and local authority,” Texas, Louisiana and Mississippi said in their lawsuit.
For instance, states are required to identify impaired waters and develop total maximum daily loads to bring them into compliance with water quality standards. They also are required to set the water quality standards or pollution discharge limits.
“If there are more tributaries, then more tributaries will require discharge limits that states will have to set in compliance with the Clean Water Act,” Rothschild said. In other words, “states lose authority on some waters and at the same time are foisted with more responsibility over these waters,” he said.
Expect More Lawsuits
Ellen Steen, the farm bureau general counsel and secretary, told Bloomberg BNA that she expects more states to file lawsuits.
“We, like the states, will probably be forced to file a lawsuit because the rule exceeds the agencies' legal authority and fails to provide the clarity that was promised. But litigation is a long process that does not protect our members from the immediate harm and uncertainty inflicted by the rule. So we remain committed to working for legislation that will require an honest and transparent rulemaking to define waters of the U.S,” Steen said in a June 29 e-mail.
The farm bureau has endorsed the Federal Water Quality Protection Act (S. 1140), which the Senate Environment and Public Works Committee approved along party lines to send to the Senate floor for a vote. It would return the rulemaking to the drawing board with explicit instructions for rewriting (112 DEN A-14, 6/11/15).
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Lawsuits Pour In As Ink Dries On Obama Rule
Jun 29, 2015 | E&E News PM
By Annie Snider
At least 17 states have joined lawsuits filed today against the Obama administration, aiming to block a controversial new water rule that would expand the number of streams and wetlands that receive automatic protection under the Clean Water Act.
The Waters of the U.S. rule was officially finalized today when it ran in the Federal Register, opening the floodgates for legal challenges. The rule is fiercely opposed by industries ranging from farming to oil and gas development to homebuilding.
The attorneys general of 12 states, led by Nebraska's Doug Peterson, filed suit in U.S. District Court for the District of North Dakota.
Their complaint contends the water rule violates provisions of the Clean Water Act, the National Environmental Policy Act and the Constitution.
"Farmers, ranchers, and landowners will find it difficult to operate without added permits and additional obstacles," Peterson said in a statement.
The other states signed onto that lawsuit are Alaska, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota and Wyoming.
Ohio Attorney General Mike DeWine and Michigan Attorney General Bill Schuette also filed a suit this afternoon in federal district court in Columbus, Ohio, arguing that the rule's definition of tributary would "include almost every conceivable water tributary in the country," according to a press release.
Meanwhile, the attorneys general of Texas, Louisiana and Mississippi filed what appears to be the first suit challenging the rule. They argue that the final version of the rule violates the Administrative Procedure Act and the Constitution's Commerce Clause and infringes on states' 10th Amendment sovereignty rights.
"The Final Rule is an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners," the three states' attorneys general wrote in their brief.
"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 the 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."
That lawsuit was filed in U.S. District Court for the Southern District of Texas, as well as in the 5th U.S. Circuit Court of Appeals.
The three Southern attorneys general wrote the "dual filing" was made "out of an abundance of caution" since judicial jurisdiction could be in dispute in this case.
As the legal challenges begin, critics of the water rule are also fighting it on Capitol Hill. The Senate is expected to take up legislation to kill the rule, S. 1140, this summer. The House has already approved similar legislation.
Policy riders blocking funding for the rule's implementation have also made their way into both the House's and Senate's fiscal 2016 funding bills for U.S. EPA.
Click here for the 12-state lawsuit.
Click here for the Texas, Louisiana and Mississippi lawsuit.
Click here for the Ohio and Michigan suit.
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Senate Appropriators Won’t Fund DOT’s Interagency Oil Trains Response
Jun 29, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
The Senate’s 2016 transportation spending bill contains no money for the DOT’s multimodal effort to respond to crude-by-rail accidents, instead choosing to fund efforts through individual agencies.
The administration had requested $5 million for a new Safe Transportation of Energy Products program, to be housed within the secretary’s office, to coordinate the response to the threat posed by oil trains.
However, the bill does include a $3.4 million plus-up for the Federal Railroad Administration, to support hiring additional inspectors and managers, as well as a more robust track inspection program on high-traffic routes.
It also would direct the Pipeline and Hazardous Materials Safety Administration to initiate a rulemaking to apply oil spill response plan requirements to rail carriers. PHMSA issued an advance notice of proposed rulemaking on the subject in July. “The Committee notes with disappointment that to date … PHMSA has not initiated a rulemaking,” the report says.
The measure also would require DOT to begin a study comparing the safety of transporting oil by rail, pipeline or truck. And it would direct DOT and DOE to coordinate to finish the second phase of an eagerly awaited study on oil volatility.
And, responding to serious delays that continue to be experienced on Amtrak’s Empire Builder, which has been affected by the astronomical growth in Bakken crude shipments, the bill would direct FRA and Amtrak to revise their feasibility studies on adding a rail stop to generate more revenue and reduce operating costs along the route, along with possible infrastructure improvements. -
Illinois Groups File Crude-by-Rail Lawsuit
Jun 30, 2015 | BNA Daily Environment Report
Two Illinois communities have re-filed their lawsuit over the Transportation Department's crude-by-rail rule, this time in the U.S. Court of Appeals for the District of Columbia Circuit (Vill. of Barrington v. United States, D.C. Cir., No. 15-01182, 6/24/15). The village of Barrington and city of Aurora filed their suit June 24 in the D.C. Circuit. The communities originally filed their lawsuits in the U.S. Court of Appeals for the Seventh Circuit. They filed a motion to dismiss June 23 in that circuit, saying the Transportation Department has determined challenges against this rule (RIN 2137-AE91). The rule the communities are challenging instates new tank car and operational controls, such as speed limit, requirements for trains moving large amounts of crude oil or other Class 3 flammable liquids (122 DEN A-21, 6/25/15). The D.C. Circuit filing is available at http://www.bloomberglaw.com/public/document/Village_of_Barrington_Illinoi_et_al_v_USA_et_al_Docket_No_1501182.
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