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ACC AM July 1
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(ACC Mentioned) ACC Publishes 2015 Guide to Chemical Industry
Jun 30, 2015 | Powder & Bulks Solids
The American Chemistry Council (ACC) has issued its 2015 edition of the Guide to the Business of Chemistry, a detailed economic profile of the chemistry industry and its contributions to the U.S. and world economies. American chemistry is the global leader in production, providing over fifteen percent of the world’s chemicals and ... -
(ACC Mentioned) P&G Puts Focus on PE Film Recycling
Jun 30, 2015 | Greener Package
By Anne Marie Mohan
In 2010, The Procter & Gamble Company unveiled a long-term environmental sustainability vision centered on Conservation of Resources, Renewable Resources, and Worth from Waste, with aggressive, measurable goals for 2020. To reach these goals, P&G has partnered with several industry organizations to advance the sustainable use... -
(ACC Mentioned) Obama Signs Trade Bill
Jun 30, 2015 | Chemical & Engineering News
By Glenn Hess
President Barack Obama on June 29 signed into law a bill giving him fast-track authority to complete a sweeping transpacific free-trade agreement with 11 other nations in the coming months. The new law also grants the President the power to present that deal to Congress for a yes-or-no vote without an opportunity to amend the terms of the... -
(ACC Mentioned) The Surprising Truth About the Dates on Food Labels
Jun 30, 2015 | Health
By Carolyn Cakir
Food waste is a big problem: Americans estimate they toss $640 worth of food each year, according to a new survey from the American Chemical Council. And an earlier analysis by the Institute of Food Technologists (IFT) found that consumers to throw away approximately 133 billion (!) pounds total of wasted food a year. -
(ACC Mentioned) Chemicals May Alter Placenta Genes, Threaten Fetuses
Jul 1, 2015 | Environmental Health News
By Brian Bienkowski
Women exposed to widely used chemicals while pregnant are more likely to have altered gene function in their placentas, according to a new study. It is the first study to show that exposure to phenols and phthalates may alter how genes are expressed in the placenta of pregnant women and suggests that such exposures may hamper... -
(ACC Mentioned) Lohud Communities Consider Banning Polystyrene
Jun 30, 2015 | Lohud - The Journal News
By Akiko Matsuda
A ban on polystyrene in New York City might seem groundbreaking, but one of the rivertowns in Westchester was ahead of the game by six months. The city begins its ban on foam take-out containers July 1, but Hastings-on-Hudson has had the law on its books since January. Other Lower Hudson Valley communities, including the city... -
A Mixed Bag: Comparing The Preemption Provisions Of The House and Senate TSCA Reform Bills
Jun 30, 2015 | Environmental Defense Fund
By Richard Denison
There are some clear similarities, and some clear differences, between the preemption provisions of the TSCA Modernization Act of 2015 (H.R. 2576) and the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), the House and Senate TSCA reform bills. Without getting too far into the weeds, I’ll use this post to compare... -
White House Expresses Concerns Over TSCA Bill's Industry-Funded Reviews
Jun 30, 2015 | E&E News PM
By Sam Pearson
The White House is optimistic that Congress will be able to pass a bill to overhaul the Toxic Substances Control Act of 1976 this year but has concerns about some provisions in the existing proposals, a spokesman said. White House Assistant Press Secretary Frank Benenati said the administration is "pleased with the ongoing bipartisan ... -
Petition Urges EPA To Regulate CO2 Under Toxics Law
Jun 30, 2015 | E&E News PM
By Emily Yehle
The Center for Biological Diversity has hit upon a novel way to cut carbon dioxide emissions: regulate them as a toxic chemical. The environmental group sent a petition to U.S. EPA today, asking the agency to use its authority under the Toxic Substances Control Act to regulate carbon dioxide emissions. CBD's contention: Carbon dioxide emissions... -
UN Experts Group Weigh Joint Approach To International Corrosivity Standards
Jul 1, 2015 | BNA Daily Environment Report
By Bryce Baschuk
After more than six years of debate, an international group of experts has yet to resolve concerns with the best way to harmonize classification rules for corrosive materials in transport. The topic ranked among the most contentious issues considered last week by the United Nations Subcommittee of Experts on the Transport of Dangerous Goods... -
DuPont Replaces Manager At LaPorte Plant Where Four Died In November
Jun 30, 2015 | The Houston Chronicle
By Lise Olsen
DuPont announced Tuesday that it has replaced its plant manager in La Porte, where four people died in a massive leak of toxic gases from a pesticide unit on Nov. 15, 2014. The company is bringing in James O'Connor, a 34-year DuPont veteran, as part of its attempts to win approval to restart the unit, which has been idle since the deaths. -
Shell Secures New Authorization in Pursuing Arctic Drilling
Jun 30, 2015 | AP (in The New York Times)
Royal Dutch Shell has secured another federal authorization as it pursues plans to drill exploration wells in the Arctic waters off the Alaska coast. The U.S. Fish and Wildlife Service on Tuesday issued a letter of authorization allowing for the possible harassment of polar bears and Pacific walrus incidental to Shell's drilling program work. -
Interior Reins In Shell’s Arctic Drilling Plans
Jun 30, 2015 | PoliticoPro - Whiteboard
By Elana Schor
The Interior Department today granted Shell authorization to disturb wildlife populations during its Arctic drilling bid this summer, but forced the company to tweak its plans by enforcing a 15-mile minimum distance between rigs to minimize the threat to walruses off the Alaskan coast. -
Facts Supporting Keystone XL Pipeline Growing, TransCanada Tells State Department
Jul 1, 2015 | BNA Daily Environment Report
By Ari Natter
After nearly seven years of review, it's time to build the Keystone XL pipeline, TransCanada Corp. said in a letter to the State Department. “Given the passage of time, the facts supporting the proposed project have continued to build,” Kristine Delkus, the Calgary-based company's executive vice president and general counsel, said in a June 29 letter. -
Keystone Developer Says New Regulations Justify The Project
Jun 30, 2015 | The Hill - E2 Wire
By Devin Henry
Recent Canadian action on climate change helps justify the construction of the Keystone XL pipeline, a TransCanada executive said in a letter to Secretary of State John Kerry this week. The Alberta government’s hike of the province’s carbon tax, as well as Canada’s commitment to international climate change agreements, means the Keystone... -
EPA Must Put More Analysis Into Permit For Offshore Oil Drilling Waste in Beaufort
Jul 1, 2015 | BNA Daily Environment Report
By Alan Kovski
A general permit for discharge of waste streams in the Beaufort Sea during oil exploration was mostly upheld by a federal appeals court decision June 29, but the Environmental Protection Agency will have to do more analysis of one part of the Clean Water Act permit on remand from the court (Alaska Eskimo Whaling Comm'n v. EPA... -
Oklahoma Court Rules Earthquake Victim Can Sue Oil Companies
Jun 30, 2015 | Reuters
By Yeganeh Torbati
An Oklahoma woman who was injured when an earthquake rocked her home in 2011 can sue oil companies for damages, the state's highest court ruled on Tuesday, opening the door to other potential lawsuits against the state's energy companies. Oklahoma has experienced a dramatic spike in earthquakes in the last five years... -
Oklahoma Court Rules Homeowners Can Sue Oil Companies Over Quakes
Jun 30, 2015 | The New York Times
By Richard A. Oppel Jr.
The Oklahoma Supreme Court ruled Tuesday that homeowners who have sustained injuries or property damage from rampant earthquakes they say are caused by oil and gas operations can sue for damages in state trial courts, rejecting efforts by the industry to block such lawsuits from being decided by juries and judges. -
EIA Reports Add Natural Gas Production Data
Jul 1, 2015 | BNA Daily Environment Report
The U.S. Energy Information Administration is adding data from 10 states to its monthly reports on natural gas production in the U.S. The new states—Arkansas, California, Colorado, Kansas, Montana, North Dakota, Ohio, Pennsylvania, Utah and West Virginia—will dramatically increase the data the agency currently collects from Alaska... -
‘Vigorous Debate' Expected on Mercury Rule After High Court Ruling, EPA Attorney Says
Jul 1, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency anticipates a “vigorous debate” on the future of its mercury and air toxics standards once the rule is formally remanded back to a federal appeals court, an agency attorney said June 30. Lorie Schmidt, associate general counsel for air and radiation at the EPA, said the agency is “committed” to ensuring... -
What the Supreme Court's EPA Decision Means For The Mercury Rule And Clean Power Plan
Jun 30, 2015 | The Hill - E2 Wire
By Richard Revesz
In the final ruling of an historic Supreme Court term, the Obama administration was handed a loss on Monday, but the fallout will likely be minimal. In a 5-4 decision written by Justice Antonin Scalia, the court found that the Environmental Protection Agency (EPA) should have considered costs when it first began the regulatory process for its Mercury... -
High Court's View of EPA Deference Unclear After Mercury Pollution, Health Care Rulings
Jul 1, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
It's unclear how much deference the Environmental Protection Agency should expect to receive in the future from courts when the agency interprets statutory language, attorneys told Bloomberg BNA. A string of recent decisions from the Supreme Court has called into question how much leeway the EPA and other ... -
SCOTUS Says EPA Must Now Consider Costs. Are Benefits Next?
Jul 1, 2015 | The Hill - Contributors
By Stuart Shapiro
The Supreme Court ruled on Monday in Michigan v. EPA that statutory language directing the Environmental Protection Agency (EPA) to consider "appropriate and necessary" factors when regulating power plant mercury emissions included costs to the power plants. The short-term effect of the ruling may be minimal, as power plants have ... -
Utility Groups Sue EPA Over Mercury Rule Reconsideration Despite High Court Ruling
Jul 1, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Hawaiian Electric Co. Inc. and the Utility Air Regulatory Group both challenged the Environmental Protection Agency's decision to deny a reconsideration request on the agency's mercury and air toxics standards for power plants (Hawaiian Elec. Co., Inc. v. EPA, D.C. Cir., No. 15-1193, 6/29/15; Util. Air Regulatory Grp. v. EPA, D.C. Cir... -
EPA: Supreme Court Ruling Won’t Stop Climate Rules
Jun 30, 2015 | The Hill - E2 Wire
By Timothy Cama
The Supreme Court’s decision against a key Obama administration air pollution rule is not stopping regulators from moving forward on the government’s most ambitious climate change rule. Janet McCabe, head of the air pollution office at the Environmental Protection Agency (EPA), characterized the Monday ruling in Michigan v. EPA as “very... -
U.S. Leaves the Markets Out in the Fight Against Carbon Emissions
Jun 30, 2015 | The New York Times
By Eduardo Porter
In 1990, by an overwhelming majority, Congress amended the Clean Air Act to establish a market for electric utilities to trade the right to emit sulfur dioxide, one of the main contributors to acid rain. The law was based on a simple economic insight. If utilities facing high costs to cut emissions could, instead, buy allowances to pollute from those... -
California Greenhouse Gas Emissions Fall — But Not By Much
Jul 1, 2015 | SF Gate
By David R. Baker
Despite California’s many efforts to fight global warming, the state’s greenhouse gas emissions rose in 2012, as a nuclear power plant shut down and the drought hit hydroelectric dams hard. But the increase, it turns out, didn’t last. Data released by the state on Tuesday show that California’s emissions of carbon dioxide and other heat-trapping... -
More Than Half of States Sue EPA To Block Rule on Water Jurisdiction
Jul 1, 2015 | BNA Daily Environment Report
By Chris Marr
Nine more states sued to block the Environmental Protection Agency's new clean water rule a day after publication of the final rule, which now faces litigation from more than half of the states (State of Georgia v. McCarthy, S.D. Ga., No. 2:15-cv-00079, 6/30/15. The joint lawsuit, filed June 30 in the U.S. District Court for the Southern District... -
Nine More States Challenge EPA’s Water Rule
Jun 30, 2015 | PoliticoPro - Whiteboard
By Jenny Hopkinson
Another nine states have filed suit against EPA’s clean water rule, bringing the total number of states challenging the revised definition of waters of the United States to 27. The latest lawsuit was filed this morning in the U.S. District Court for the Southern District of Georgia by the attorneys general of that state, West Virginia, Alabama, Florida... -
States' Suits Claim EPA 'Waters' Rule Violates Federal Laws, Constitution
Jun 30, 2015 | InsideEPA
By Lara Beaven
At least 14 states have filed three separate lawsuits in federal district courts over EPA's Clean Water Act (CWA) jurisdiction rule claiming it violates the water law, the Administrative Procedure Act (APA) and the Constitution --- among the first of what are expected to be multiple challenges to the rule filed in various venues and... -
Mining Industry Says EPA CWA Rule Could Exacerbate Permitting Delays
Jun 30, 2015 | InsideEPA
By Bridget DiCosmo
Mining industry officials say EPA's final Clean Water Act (CWA) jurisdiction rule could increase permit burdens and exacerbate delays in the permitting process highlighted in a new study sponsored by the sector, while they push for Congress to approve legislation that aims to accelerate mines' ability to obtain permits. -
Illinois, Industry Crude-by-Rail Cases Consolidated
Jul 1, 2015 | BNA Daily Environment Report
A federal appeals court has consolidated two Illinois communities' challenges against the Transportation Department's crude-by-rail rule with two industry lawsuits (API v. United States , D.C. Cir., No. 15-01131, 6/29/15). The U.S. Court of Appeals for the District of Columbia Circuit ruled June 29 that the lawsuit filed by the village of Barrington...
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(ACC Mentioned) ACC Publishes 2015 Guide to Chemical Industry
Jun 30, 2015 | Powder & Bulks Solids
The American Chemistry Council (ACC) has issued its 2015 edition of the Guide to the Business of Chemistry, a detailed economic profile of the chemistry industry and its contributions to the U.S. and world economies.
American chemistry is the global leader in production, providing over fifteen percent of the world’s chemicals and representing 14 percent of all U.S. exports. It is also one of America’s largest manufacturing industries, an $801 billion enterprise providing 804,000 high-paying jobs. For every one chemistry industry job, 6.3 others are generated in other sectors of the economy, including construction, transportation, and agriculture, totaling nearly six million chemistry-dependent jobs.
“The business of chemistry is the building block for everything around us,” said the publication’s lead author, ACC chief economist Kevin Swift. “Supporting nearly 25 percent of the U.S. GDP, the business of American chemistry is vital to continued economic expansion, job creation, and the return of a strong domestic manufacturing sector.”
“At the midway point in 2015, the business of chemistry is poised for growth,” Swift continued. “Ongoing recovery of end-use markets, sustained competitiveness, and the return of global economic growth will lift demand for American chemistry for several years and in the long-term the industry will grow faster than the overall economy.”
Prepared annually by ACC’s Economics and Statistics Department, The Guide to the Business of Chemistry divides the $801 billion business into more than thirty categories of production, ranging from inorganic chemicals to plastic resins; from adhesives and sealants to oilfield chemicals; and from fertilizers to pharmaceuticals and consumer products. Within each segment the report highlights distinct characteristics, including growth dynamics, markets, new developments, and other issues affecting each sector.
Individual sections of the guide cover a variety of topics in detail, including financial performance, U.S. and global trade, innovation, capital investment, employment, environmental, health and safety statistics, energy, and distribution. Charts and graphs help illustrate data and provide comparisons for the past 10 years.
The Guide to the Business of Chemistry is available to ACC members for $285 and non-members for $385. -
(ACC Mentioned) P&G Puts Focus on PE Film Recycling
Jun 30, 2015 | Greener Package
By Anne Marie Mohan
In 2010, The Procter & Gamble Company unveiled a long-term environmental sustainability vision centered on Conservation of Resources, Renewable Resources, and Worth from Waste, with aggressive, measurable goals for 2020. To reach these goals, P&G has partnered with several industry organizations to advance the sustainable use of packaging materials throughout the entire life cycle, including raw material development, manufacturing, consumer use, and end of life.
In May 2015, P&G joined the American Chemistry Council’s Flexible Film Recycling Group to develop and encourage the recycling of polyethylene film. In this Q&A article, P&G Research and Development Manager Stephen Sikra discusses how this effort will help advance P&G’s environmental vision, the challenges of recycling PE film, and the importance of film recycling.
Packaging World:
What is your role and what are your responsibilities at P&G?Stephen Sikra:
I lead P&G’s global Material Science and Technology (MS&T) program for package material innovation. The focus of my work is helping P&G achieve two of its visionary goals: to one day have zero waste—manufacturing and consumer—sent to landfill, and to make all packaging with 100% renewable or recycled materials.One key area of our R&D efforts is advancing sustainable materials for use in P&G packages and products. This effort spans the full life cycle of our value chain, so we consider raw material development through manufacturing, consumer use, and end of life. To help our understanding of this life-cycle process, we work with and learn from many partners. For example, I work with industry leaders such as the Association of Postconsumer Plastic Recyclers, the recently formed Closed Loop Fund, and now the American Chemistry Council’s Flexible Film Recycling Group to develop and encourage local recycling programs.
Why did you choose to join the FFRG? How do their initiatives fit in with P&G’s goals for recycling?
The FFRG is making positive strides to advance film recycling by bringing stakeholders together with a simple, unified mission: “To significantly increase the collection and recycling of all flexible films and to educate the public about the importance of recycling.” The FFRG is making use of the existing film reclamation infrastructure built around retail stores for collection. We believe increased participation in this mechanism can bring tangible advances to film recycling in the near term. This helps enable multiple goals for P&G, including:• Using packaging that is recyclable or engaging in programs to create the ability to recycle it. Our goal is to have 90% recyclable packaging or have programs in place to create the ability to recycle it by 2020.
• Contributing to our vision for one day having zero consumer and manufacturing waste to landfill.
• Increasing the supply of material to meet growing PCR demand, such as P&G’s goal of doubling the use of PCR material by 2020.
With the FFRG, we hope to expand participation in film recycling via existing and new retail store take-back programs. Further, we look to partner with FFRG to expand film recycling beyond polyolefin films and store collection.
Can you elaborate on how P&G’s membership in the FFRG will facilitate the company’s goal for zero waste to landfill?
Our vision for zero consumer waste to landfill is more than an aspiration; we are working toward this long-term vision and have set short-term goals to get us there, each with published, measurable results, so we are holding ourselves publically accountable for making solid advances.When we assess P&G packaging materials under the lens of recycling, we see opportunities to improve high-density polyethylene and PET recycling; P&G has a long history of working with the APR in this space. Along with other like-minded companies, we recently became founding members of the Closed Loop Fund to expand the recycling infrastructure with low-interest loans. With the ACC, the APR, and others, we formed the APR Rigids Committee about six years ago to increase PP recycling, driving a 3X increase in recycled PP.
We see film recycling as another opportunity area and view the FFRG efforts as a meaningful way to advance the cause. We hope this becomes another successful example of industry partners coming together for a common cause. We recognize that to make real progress, our industry will need substantial increases in consumer and commercial recycling. This is a step in the journey. Eventually, I hope to see more advances in curbside film collection. For now, our message is simple, “Take your clean, dry film back to stores for recycling.”
FFRG focuses on the recovery of flexible PE film, wraps, and bags. How much of this type of packaging does P&G use? What is it used for?
P&G is a relatively small film user (by tonnage) compared to the total film market, using films for both shipping and packaging. We use film to contain unit loads of product shipped on pallets within our distribution system. This industrial film is routinely recycled today by our plants and retail customers.On the consumer side, P&G uses flexible PE film as shelf packaging and unit packaging primarily for items such as diapers, feminine care products, and tissue/towels. We are working to educate and encourage consumers to recycle high-quality polyolefin films in store take-back programs.
Why is the recycling of PE film important?
Film packaging has many benefits versus rigid packaging, including the use of less material to package products, requiring less energy to produce, taking up less space in shipment/storage/retail, and reducing the environmental impacts of transportation. Given the many benefits and the increasing use of film packaging, it is important we work to optimize collection and recovery, as both post-consumer and post-industrial films have value. Maximizing recovery of value is good for business, good for consumers, and good for the environment.What do you believe are some of the greatest challenges to PE film recycling?
When I consider recycling in general, I view four factors as critical to a successful program: access to collection, participation by consumers, systems for separation of materials, and end markets for the recycled material. I see strong demand for recycled PE film material in both durable goods and films/flexibles. There are challenges—although I prefer to call them “opportunities”—including access, participation, and separation. Importantly, we know most curbside systems are not equipped to handle film; it can jam municipal recycling facility (MRF) equipment that is not designed for film handling, and separation/identification systems are not in place for film. Because of this, the message to most U.S. consumers is, “Don’t put films in your recycling bin.” So a lot of work needs to be done to make curbside film recycling effective, including education and outreach to infrastructure investments. Along our journey, making use of the best current systems, such as store take-back programs (and the few curbside programs that do exist) makes sense.Considering film recycling in the retail take-back system, consumer awareness and participation is a key focus area. The 2014 survey by Plastics Make it Possible® indicates that of the two-thirds of Americans who regularly recycle, less than one-third return plastic shopping bags to stores for recycling (so less than 25%). We aim to increase this rate and expand the collection beyond bags by including packaging materials made of similar clean, dry, polyolefin film. In this effort, we look to make use of the How2Recycle label from GreenBlue’s Sustainable Packaging Coalition (SPC) as a simple means to communicate recyclability to consumers.
One of P&G’s stated sustainability goals is to double the use of recycled resin in your plastic packaging. Can P&G use recycled PE for new packaging?
P&G can and does use recycled PE in our packaging. In fact, we have been using recycled PE (and PET) since the late 1980s. Our main use of plastic PCR material is in bottles, although we have demonstrated PCR use in films as well. Our 25-year history of using PCR—25% or more in all U.S. detergent and fabric softener bottles, for example—and our recently announced goal of doubling our PCR use by 2020 is indicative of our commitment to the recycling industry. Simply, we use PCR, and we are in it for the long haul. Specific to new packaging, consideration of PCR inclusion and recycling is made in every situation; this is part of sustainable packaging design, along with performance requirements and product protection, material selection, minimization of material, cost, supply, and other factors.As far as demand for recycled PE film, I see it as very strong with many uses, including durable goods such as composite lumber for decks, fencing, building and garden products, crates, and piping, and for flexible applications, including new film packaging and plastic bags.
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(ACC Mentioned) Obama Signs Trade Bill
Jun 30, 2015 | Chemical & Engineering News
By Glenn Hess
President Barack Obama on June 29 signed into law a bill giving him fast-track authority to complete a sweeping transpacific free-trade agreement with 11 other nations in the coming months.
The new law also grants the President the power to present that deal to Congress for a yes-or-no vote without an opportunity to amend the terms of the pact.
The White House hopes to complete an agreement this year on the Trans-Pacific Partnership (TPP), which would create a free-trade zone stretching from Japan to Chile that includes 40% of the global economy. A separate accord is also in the works with the 28-member-nation European Union—the Transatlantic Trade & Investment Partnership (TTIP)—but those talks are not as far along.
Industry officials say the two trade agreements would help facilitate a surge in U.S. chemical exports and boost economic growth and domestic job creation. The chemical sector surpassed $190 billion in exports in 2014, making it one of the nation’s largest exporters.
“The future looks even brighter,” says Calvin M. Dooley, chief executive officer of the American Chemistry Council, an industry trade group. “We estimate total chemical exports could expand nearly 8% per year through 2019 to $282 billion, while exports could double by 2030.”
On the basis of 2013 chemical exports, more than half of the top 20 export markets are currently a part of TPP or TTIP negotiations.
The U.S. chemical industry also has more to gain in tariff reduction from the planned U.S.-EU agreement than any other manufacturing sector, says William E. Allmond IV, vice president of the Society of Chemical Manufacturers & Affiliates, a trade association for specialty chemical makers. If the pact is approved, “the industry would save more than $1 billion annually in eliminated tariffs,” he says.
“These TPP and TTIP markets are also important now and in the future for the chemical industry and others, not because of market access, but also because it provides a means to address many other nontariff issues,” such as import licensing requirements, Allmond adds.
Congress approved the bill in late June after months of contentious debate and several close votes. Republicans overwhelmingly supported the legislation, but most Democrats, reflecting strong opposition by labor unions, opposed it.
In addition to the trade promotion authority bill, as the fast-track measure is called, Obama signed related legislation that will provide retraining for U.S. workers who might lose their jobs as a consequence of the free-trade deals.
“I would not be signing these bills if I was not absolutely convinced that these pieces of legislation are ultimately good for American workers,” Obama said at a ceremony in the East Room of the White House. “This is a reminder of what we can get done on even the toughest of issues if we compromise.”
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(ACC Mentioned) The Surprising Truth About the Dates on Food Labels
Jun 30, 2015 | Health
By Carolyn Cakir
Food waste is a big problem: Americans estimate they toss $640 worth of food each year, according to a new survey from the American Chemical Council. And an earlier analysis by the Institute of Food Technologists (IFT) found that consumers to throw away approximately 133 billion (!) pounds total of wasted food a year.
Confusion over those tiny date stamps on food products is a big part of the problem.
That’s because, while they may sound similar, “use-by,” “sell-by,” and “best-by” dates actually mean three different things when it comes to food safety. And none of these dates are literal expiration dates that reflect exactly when a product will become harmful or dangerous to eat. They only mark the point at which it’s reached peak quality, consistency, or flavor—leading to a lot of confusion and still-good food thrown out before its time, according to the IFT.
To help you decide when it’s really time to toss that carton of milk, we’ve laid out the differences between common dates you’ll find on food packaging. Use-by date
You should, theoretically, eat food before this date, which is based more on when the quality of the product will go down than the chance that it will make you sick. But “quality is likely to go down much faster and safety could be lessened” after this point, Bob Brackett, PhD, director of the Institute for Food Safety and Health, noted in a press release. So when in doubt, it’s a good rule of thumb to throw food out on or very close to this date.
Much like the “use-by date,” this number tells consumers when a product should be eaten to guarantee ideal flavor and quality, not when a food will go bad. Sell-by date
This marking informs retailers of the date by which they should sell the product or remove it from store shelves. Food is still safe for at-home consumption well after this point. In fact, according to Brackett, “typically one-third of a product’s shelf life remains after the ‘sell-by’ date for the consumer to use at home.”
Bottom line: While these dates are guidelines—and a good starting point—they’re not going to help you determine when food will make you sick, or even when exactly you should throw it out. The good news is, most food takes longer than you’d think to go bad.
Always try to make sure your cold food stays cold and that your cooked food stays hot, since bacteria multiply the fastest between 40 degrees and 140 degrees. To keep them from growing, refrigerate food at less than 40 degrees, and reheat cooked leftovers to at least 165 degrees. And keep in mind the “2-2-4” rule of thumb: Don’t leave food out longer than 2 hours, refrigerate it in containers less than 2 inches deep, and use or freeze all refrigerated leftovers before 4 days.
For even more in-depth pointers on when you should really toss specific food items out, look to sites like The Food Keeper, a web sites with a searchable database of guidelines for storing and keeping everything from cereal to baby food safe, as well as Foodsafety.gov.
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(ACC Mentioned) Chemicals May Alter Placenta Genes, Threaten Fetuses
Jul 1, 2015 | Environmental Health News
By Brian Bienkowski
Women exposed to widely used chemicals while pregnant are more likely to have altered gene function in their placentas, according to a new study.
It is the first study to show that exposure to phenols and phthalates may alter how genes are expressed in the placenta of pregnant women and suggests that such exposures may hamper fetuses’ proper development and growth.
“Altered expression of a gene is of concern because we will have more or less of a protein,” said senior author of the study, Karin Michels, a professor and epidemiologist at the Harvard University School of Public Health, in an emailed response. “Proteins have essential function, for example, as hormones in the body.”
The researchers tested the urine of 179 women in their first trimester of pregnancy for eight phenols, including widely used bisphenol-A (BPA), and 11 phthalate metabolites, substances formed after the body processes phthalates. Then they tested how certain genes were expressed in the placenta. The women were enrolled in a study cohort at Harvard University.
They found that exposure was associated with altering certain molecules that regulate the expression of genes in the placenta. The study is concerning because the placenta is a lifeline for the fetus and properly functioning genes are crucial for the health of both the placenta and the growing fetus.
“The placenta is vital for nutrient transport to the fetus, regulation of oxygen, transport of waste out of the fetal compartment … preventing infection,” said Jennifer Adibi, an assistant professor and epidemiologist at the University of Pittsburgh who studies how chemicals impact placentas and fetuses.
“In the early stages, the fetus doesn’t have a functional endocrine system, it does not produce the hormones it needs to develop, and the placenta actually provides those,” said Adibi, who was not involved in the study.
Phenols and phthalates are widely used. Phthalates are used in vinyl products, in cosmetic as fragrances and in other plastics to make them pliable.
Phenols have a wide variety of uses including plastic resins, pesticides, and cleaning and personal care products. One of the most common, BPA, is ubiquitous and used to make polycarbonate plastic and found in some food cans and paper receipts.
Both phthalates and phenols are found in most people and the compounds are endocrine disruptors, meaning they interfere with people’s hormones. Disrupted hormones can lead to numerous defects and diseases.
During pregnancy, various hormones rise to ensure that the fetus is carried to term. “Phthalates and phenols may interfere especially with these hormones by either mimicking their effect or blocking them,” Michels said.
The first trimester is a “critical window of exposure for implications in adverse health outcomes later in life,” Michels and colleagues wrote in the study published this month in the Environmental Health Perspectives journal.
Adibi said the study is more evidence that human placentas respond “very uniquely” to chemicals such as phthalates. “This kind of challenges that historical view of the placenta—that chemicals pass through it in a passive way and interact with the fetus directly,” she said.
The study had “numerous shortcomings,” according to a statement from the American Chemistry Council (ACC), which represents chemical manufacturers.
“This study does not provide enough information about the source of potential exposures and the study participants themselves to draw conclusions about the findings,” the statement said.
The ACC also pointed out that the study did not draw any conclusions about negative health effects associated with potential exposures, as the researchers did not find any associations between the expression of genes and birth weights or lengths.
However the altered gene expression may affect other aspects of long-term health such as metabolism or hormones, which may not directly impact birth weight or length but could manifest later in childhood or adult characteristics, Michels said.
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(ACC Mentioned) Lohud Communities Consider Banning Polystyrene
Jun 30, 2015 | Lohud - The Journal News
By Akiko Matsuda
A ban on polystyrene in New York City might seem groundbreaking, but one of the rivertowns in Westchester was ahead of the game by six months.
The city begins its ban on foam take-out containers July 1, but Hastings-on-Hudson has had the law on its books since January. Other Lower Hudson Valley communities, including the city of Yonkers and the county of Westchester, are also considering bans. In Rockland and Putnam, the use of polystyrene foam products has been banned within government offices, but not outside of the county facilities.
New York City's new regulations prohibit restaurants, stores and manufacturers from using single-use polystyrene items, including cups, bowls, plates, take-out containers and trays. Polystyrene loose fill packaging, known as packing peanuts, are also banned under the law. Foam containers for raw meat or seafood sold at stores are still allowed.
Though commonly referred to as Styrofoam, that name brand of polystyrene foam isn't used in food packaging, according to its manufacturer, Dow Chemical Co.
New York City went ahead with the ban because the material can't be recycled. But the American Chemistry Council, an industry trade organization, disagrees, saying that polystyrene has been recycled throughout the U.S. and Canada.
Hastings-on-Hudson, with a population of about 8,000, is among several communities that also banned single-use plastic bags. There is a grace period, the mayor said, for both the bags and the polystyrene while the village educates the community about the new law.
"By and large, compliance is good, and they have adopted well," Mayor Peter Swiderski said.
The Food Industry Alliance of New York, which represents the grocery industry, sued the village, arguing that Hastings' law is unconstitutional. The case is pending before the state Supreme Court in Westchester.
Supporters of the ban say polystyrene doesn't decompose and makes up a significant portion of the trash polluting local waterways.
The city of Yonkers is also considering a bill that would ban polystyrene take-out containers and plastic bags. The bill was introduced to the City Council in early June by Council President Liam McLaughlin. The discussion will continue when the meeting is reconvened in September.
Westchester County Legislator Catherine Parker, D-Rye, has also proposed a bill to limit use of plastic bags and polystyrene foam containers by retail businesses. The bill is currently being discussed in the Environment and Energy Committee, she said.
"Our environment is very important," Parker said. "Everything that we can do to help the environment, that's a good thing."
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A Mixed Bag: Comparing The Preemption Provisions Of The House and Senate TSCA Reform Bills
Jun 30, 2015 | Environmental Defense Fund
By Richard Denison
There are some clear similarities, and some clear differences, between the preemption provisions of the TSCA Modernization Act of 2015 (H.R. 2576) and the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), the House and Senate TSCA reform bills. Without getting too far into the weeds, I’ll use this post to compare and contrast these controversial and complex aspects of the legislation.
Similarities
First, as is the case with current TSCA, both bills apply preemption only on a chemical-specific basis; that is, only when EPA is acting on a specific chemical is there any preemptive effect, and the effect is limited to that chemical.
Here’s what else is the same or similar in both bills:
First, both bills grandfather in state actions taken before August of this year, as well as actions taken under laws in effect on August 31, 2003, an indirect way of preserving California’s Proposition 65 warning/labeling law.
Second, under both bills, final actions by EPA generally preempt states, including both when EPA finds that a chemical “will not present an unreasonable risk” and when it finds such risk and issues a regulation imposing restrictions.
These final actions preempt both past state actions (unless grandfathered-in) and future state actions, unless the action taken by the state: is identical to the Federal requirement;is adopted under the authority of a federal law; oris adopted under a state air or water quality or waste treatment or disposal law.
Third, both bills generally tie the scope of any preemption to the scope of EPA’s action on a chemical, leaving states free to act, for example, on uses of a chemical that EPA did not consider in its review.
Differences
All of the above is very similar in the two bills, with three significant exceptions that are worse in the House bill (we’ll get to what’s worse in the Senate bill below): While the Senate bill’s preemption applies only to state restrictions on a chemical, the House bill would preempt any state requirement “designed to protect against exposure” to a chemical. This broader reach could well apply to state requirements for things like reporting or disclosure, not just to direct restrictions. In contrast, the Senate bill explicitly carves out such state actions from being preempted.The House bill’s preemption applies even if the state action is taken to address a health or environmental concern not considered by EPA; in contrast, the Senate bill only preempts state restrictions on uses EPA has addressed with respect to the same health or environmental concern.The House bill’s preemption applies to new chemicals just entering the market: If EPA has imposed any requirement on such a chemical, states could not ever impose requirements on any uses of that chemical proposed by the company, even long after it enters the market. The Senate bill has no such preemption for new chemicals. Note that about 700 new chemicals enter the market each year.
A positive aspect of the House bill (and a negative in the Senate bill) is that there is no preemption of new state requirements based on EPA initiating a risk evaluation of a chemical. In contrast, the Senate bill would block new state restrictions on a chemical at the point when EPA has defined the scope of and initiated a safety assessment for that chemical. Several amendments were made to significantly limit the effect of this provision just prior to the vote in the Senate Environment and Public Works Committee: This “early” preemption lifts once EPA issues a final safety determination. At that point: if EPA has found the chemical meets the safety standard, final preemption would apply; or if EPA has found the chemical does not meet the safety standard, states could impose new requirements while EPA develops its requisite regulation.States can readily get a waiver to act during the assessment phase.If EPA misses its deadline for issuing a safety determination, states waivers are automatically approved.
In our view, very few states are likely to act during this period when EPA is assessing a chemical, knowing that preemption would apply once EPA takes final action. The above changes restore the ability of states to act if they believe they need to, and avoid creating any perverse incentive to drag out the federal process.
Waivers
Finally the two bills differ with respect to waivers in two respects: The House bill keeps current TSCA’s waiver provision, which clearly sets a lower bar for EPA to grant a waiver than the Senate bill.However, under the House bill, EPA does not have to act on a request from a state for a waiver and there is no deadline for a decision; if EPA fails to decide or denies the waiver, the state has no clear recourse or ability to appeal. If EPA grants a waiver, however, industry could sue EPA to try to get it overturned.
In contrast, in the Senate bill, there is a mandate and a deadline for EPA to decide on any waiver request. If EPA misses the deadline, a state or any other person can challenge EPA in court for its failure to perform a mandatory duty. (In addition, a waiver for a state to act during EPA review of a chemical is automatically approved if EPA misses its deadline to decide on the waiver request.) Finally, if EPA denies a waiver, the state can sue EPA to try to get the denial overturned.In sum, both bills have more preemption than current law, and each is a mixed bag.
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White House Expresses Concerns Over TSCA Bill's Industry-Funded Reviews
Jun 30, 2015 | E&E News PM
By Sam Pearson
The White House is optimistic that Congress will be able to pass a bill to overhaul the Toxic Substances Control Act of 1976 this year but has concerns about some provisions in the existing proposals, a spokesman said.
White House Assistant Press Secretary Frank Benenati said the administration is "pleased with the ongoing bipartisan efforts in the House and the Senate to reform TSCA, which seek to address the goals spelled out" in U.S. EPA's principles for TSCA reform.
The administration has not released a statement of policy on either S. 697, the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," or H.R. 2576, the "TSCA Modernization Act," but that doesn't mean the White House considers either bill to be complete, Benenati said.
"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," Benenati said in a statement that was first reported by Inside EPA. He declined to list additional examples.
The House passed H.R. 2576 by a vote of 398-1 last week, and Senate Majority Leader Mitch McConnell (R-Ky.) has said he plans to take up S. 697 next month (E&E Daily, June 24).
The issue of industry-funded assessments stalling action at EPA has previously been raised by several advocacy groups, though a spokesman for Rep. John Shimkus (R-Ill.) said the provision shouldn't impact EPA actions.
The provision "should not affect the number of reviews that EPA requests on its own and that the appropriators budget for," Shimkus spokesman Jordan Haverly said in a statement.
Haverly noted that H.R. 2576 would require EPA to report to Congress on its workload -- including the number of risk evaluations proposed both by the agency and manufacturers.
This is required "so appropriators can anticipate how much to provide for risk management rules that may follow the risk evaluations," Haverly said.
In a blog post, Andy Igrejas, the director of Safer Chemicals, Healthy Families, said the House bill was a strong foundation for reform but was imbalanced in favor of industry.
For example, Igrejas wrote, the bill requires EPA to complete industry-requested assessments that are funded through fees on companies that ask for them. However, while EPA is supposed to complete at least 10 of its own reviews per year, these assessments are "subject to the availability of appropriations."
Though the House bill now gives EPA some discretion to defer the industry requests if they constrain agency operations, the reliance on the decisions of future appropriators is troubling, Igrejas wrote. By comparison, the Senate bill allows EPA to raise revenue for agency-driven reviews through a user fee on chemical companies.
"A small amendment here would have a big impact," Igrejas wrote.
The Environmental Defense Fund, a key supporter of S. 697, also raised the issue today in an "urgent alert" to supporters. EDF urged its members to contact senators and ask them to support the Senate bill, without incorporating what EDF described as harmful provisions in the House legislation.
"Most shockingly," the group said, the industry-funded assessment language in the House bill would "create a virtually unlimited opportunity for the chemical industry to decide which chemicals get reviewed by EPA."
Though the Senate bill has also been criticized by environmental groups and Sen. Barbara Boxer (D-Calif.), among others, as being subject to industry influence, EDF's alert blasted provisions in the House bill for that offense.
"It's not reform if the chemicals industry gets to set the agenda and pull the strings," the group said.
Lawmakers could work out these issues in the weeks ahead, Benenati said.
"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," he said.
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Petition Urges EPA To Regulate CO2 Under Toxics Law
Jun 30, 2015 | E&E News PM
By Emily Yehle
The Center for Biological Diversity has hit upon a novel way to cut carbon dioxide emissions: regulate them as a toxic chemical.
The environmental group sent a petition to U.S. EPA today, asking the agency to use its authority under the Toxic Substances Control Act to regulate carbon dioxide emissions. CBD's contention: Carbon dioxide emissions cause ocean acidification, which in turn threatens sea life and thus qualifies as a chemical substance that causes harm to health and the environment.
Donn Viviani, a retired EPA scientist who joined CBD in submitting the petition, drew a parallel to EPA's regulation of chlorofluorocarbons. The agency prohibited the use of the compound as a propellant in aerosol cans after it was linked to the ozone "hole" over Antarctica.
"We've solved big environmental problems before and our petition shows the EPA a path to take bold action and leadership to save our oceans," Viviani said in a statement.
EPA now has 90 days to respond to either grant or deny the petition. If denied, the agency must publish the reasons in the Federal Register; if accepted, it must begin a rulemaking.
Such petitions are CBD's forte. The group routinely submits petitions to the Fish and Wildlife Service to force the agency to consider listing species under the Endangered Species Act. But while petitions to FWS do often jump-start a listing consideration, today's petition to EPA is far less clear-cut.
EPA spokeswoman Laura Allen said the agency plans to review the petition.
"Climate change is one of the greatest challenges of our time, and one of the greatest threats we've ever faced," Allen wrote in an email. "That's why, as we mark the second anniversary of the President's Climate Action Plan, EPA is taking serious action to fight climate change."
CBD's petition outlines the evidence that ocean acidification threatens most sea life, from the mollusks that have difficulty growing their shells to the dissolution of corals to the increased toxicity of algal blooms. Such acidity occurs as the ocean absorbs increasing levels of carbon dioxide.
Such acidification "is a severe threat to the marine environment and the health of people who depend on oceans and coasts," CBD says in the petition. "Because of the unreasonable risk that CO2 poses to the environment and human health, this petition seeks rulemaking under the Toxic Substances Control Act ('TSCA') to regulate CO2 from cradle to grave."
The petition also asks EPA to consider a "test rule" under TSCA, if it determines that not enough data exists to predict the effects of carbon dioxide emissions. Such testing is usually done on new chemicals to determine their safety. But the petition suggests that EPA has the authority to test reduction strategies such as sequestration and capture, as well as conduct vulnerability studies for coastal ecosystems and identify imperiled wildlife species.
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UN Experts Group Weigh Joint Approach To International Corrosivity Standards
Jul 1, 2015 | BNA Daily Environment Report
By Bryce Baschuk
After more than six years of debate, an international group of experts has yet to resolve concerns with the best way to harmonize classification rules for corrosive materials in transport.
The topic ranked among the most contentious issues considered last week by the United Nations Subcommittee of Experts on the Transport of Dangerous Goods (TDG) due to industry concerns that harmonization could produce costly over-classification requirements.
Members of the TDG subcommittee concluded their June 22–June 26 meeting in Geneva without any significant decisions or conclusions, a result that was largely expected, as it was the group's first session of its biennial schedule.
Some members said they lack sufficient guidance and information from the subcommittee on Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and provided a list of questions and suggestions for GHS members to consider at their work session this week.
Canadian Corrosivity Proposal
The TDG subcommittee members also disagreed on Canada's proposal for classifying corrosive materials in the UN Model Regulations and the Globally Harmonized System of Classification and Labelling of Chemicals.
Canada's proposal would classify materials with extreme pH as corrosive under the highest packaging category, Group I. The proposal also included an additivity approach, though the Canadian delegation acknowledged the method was vulnerable to over-classification.
The Netherlands said the Canadian proposal was not adequately harmonized with the GHS and worried that it would lead to more testing.
In addition, the U.S. delegation did not favor any attempt to change classification for corrosivity in transport. Members said they opposed the use of pH as criteria in classification methods due to concerns that it could lead to over-classification and increased testing.
Austria also opposed the use of pH as classification criteria, while Belgium said pH classification criteria could be useful for bulk shipments.
Spain, meanwhile, said classifications should take account of inhalation risks of corrosive materials and their reactivity with water.
‘No Solution Yet.’
Subcommittee Chairman Duane Pfund noted that the conversation of pH and additivity methods were among the more difficult issues for members to find common ground on.
“We're committed to trying to find nontesting methods for determining corrosivity. There's no solution yet,” said Pfund, who is also director of the U.S. Department of Transportation's Office of International Standards.
“There is certainly an understanding that we don't want to introduce provisions that under-classify or over-classify,” Pfund told Bloomberg BNA. “We need to test.”
Heidi McAuliffe, senior counsel with the International Paint & Printing Ink Council, said: “There are still lots of issues percolating with this and no real consensus for how to incorporate the GHS criteria into the model regulations. This was the first meeting of the new biennium so there is no sense of urgency at this point to make final decisions.”
Explosives, Batteries
There were also a large number of papers on explosives, which the subcommittee's explosives working group (EWG) considered in parallel meetings to the plenary session.
Members considered a proposal for a globally harmonized format for explosives security markings to be used on transport packaging and their contents.
There also was a discussion within EWG to increase the traceability of explosives as a deterrent against theft and misuse for terrorist attacks.
The Informal Working Group on Lithium Batteries met June 23 to discuss eight topics considered at the working group's previous session in March.
Among the issues debated were transportation limits based on watt-hour markings, packaging for rechargeable lithium metal and lithium sulfur batteries, new testing procedures for hybrid lithium metal/ion batteries, formats for lithium battery test reports, internal short circuits, identification of damaged or defective batteries, and testing provisions for safety circuits.
The working group's next session will be held in Washington in September.
Next Steps
The TDG subcommittee is expected to reconsider the Canadian proposal regarding corrosivity classification, among others, at its next meeting scheduled for Nov. 30–Dec. 9. The GHS subcommittee will then meet from Dec. 9–Dec. 11.
The work of the two groups ultimately will contribute to the December 2016 meeting of the full UN Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals.
At that meeting, the full committee will consider final approval of the subcommittees' amendments and their incorporation in the 19th Revised Edition of the UN Model Regulations.
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DuPont Replaces Manager At LaPorte Plant Where Four Died In November
Jun 30, 2015 | The Houston Chronicle
By Lise Olsen
DuPont announced Tuesday that it has replaced its plant manager in La Porte, where four people died in a massive leak of toxic gases from a pesticide unit on Nov. 15, 2014. The company is bringing in James O'Connor, a 34-year DuPont veteran, as part of its attempts to win approval to restart the unit, which has been idle since the deaths.
"I'm glad to be back in Texas and join the La Porte team serving our Crop Protection customers," said O'Connor, in a news release. "I take the consent to operate very seriously, and my near-term focus will be to ensure a safe restart" of the facility.
O'Connor is the fifth plant manager at the La Porte plant, about 22 miles east of downtown, in only six years.
Other problems in W. Va.
O'Connor previously served as plant manager for DuPont in Belle, W. Va., from 2010-2014. The Belle plant was also the target of federal investigations after a piece of inexpensive tubing failed in January 2010, exposing a long-time worker to a fatal dose of phosgene, a gas used in chemical warfare in World War I.
That death and the subsequent fatal injury of a welder at another DuPont facility in New York in 2011 both prompted Chemical Safety Board investigations that found serious problems with DuPont operations.
The La Porte 2014 accident remains under investigation by state and federal environmental authorities and by the Chemical Safety Board.
DuPont said O'Connor also briefly served as operations director for its spinoff company Chemours, which DuPont formed last year as part of a series of nationwide restructurings. Prior to his stint as a plant manager in West Virginia, he served as a safety manager for DuPont electronics and communications business and in a variety of other leadership roles.
Previous head reassigned
DuPont spokesman Aaron Woods said that La Porte's previous plant manager, Randy Clements, remains a DuPont employee who "has been assigned to another position." Records show that Clements had been the plant manager for only about a month before a massive leak of methyl mercaptan killed four workers: Wade Baker, 60; Crystle Wise, 53; Robert Tisnado, 39; and Tisnado's older brother Gilbert "Gibby" Tisnado, 48. The Tisnados died in attempts to rescue other workers, though Gibby Tisnado managed to help one other worker escape.
The families of all four workers have accused Clements and DuPont of negligence in civil lawsuits that are pending in Harris County courts.
OSHA in May issued a $99,000 fine for violations of process safety management rules in a citation that DuPont is fighting.
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Shell Secures New Authorization in Pursuing Arctic Drilling
Jun 30, 2015 | AP (in The New York Times)
Royal Dutch Shell has secured another federal authorization as it pursues plans to drill exploration wells in the Arctic waters off the Alaska coast.
The U.S. Fish and Wildlife Service on Tuesday issued a letter of authorization allowing for the possible harassment of polar bears and Pacific walrus incidental to Shell's drilling program work. Intentional harassment is not permitted.
The authorization includes measures that Shell must take to minimize the effect of its work on the animals, including a minimum spacing of 15 miles between all drill rigs or seismic survey vessels, something conservation groups had sought. Nonetheless, some of those groups still called on President Barack Obama's administration to stop Arctic drilling.
Chris Krenz, Arctic campaign manager and senior scientist for Oceana, said the government seems to be rushing to meet Shell's timeline rather than taking the time needed to do the appropriate analyses.
"The closer the Shell rigs encroach upon the Chukchi Sea, the further away the Obama administration retreats from its promise to leave a strong climate legacy," Friends of the Earth's Marissa Knodel said in a statement.
Shell still needs drill permits. If it gets those, it could begin drilling in the Chukchi Sea in mid-July.
Shell spokesman Curtis Smith said by email that the company is evaluating Fish and Wildlife's letter of authorization and continues to pursue the exploration plan conditionally approved by another federal agency earlier this year. "That includes drilling in the Chukchi Sea once open water permits," he wrote.
The letter of authorization came the same day that Shell's second Arctic drilling ship, the Noble Discoverer, left Everett, Washington, en route to Alaska. The 572-foot drill ship was escorted from the harbor in Everett by two tug boats and two Coast Guard vessels, KIRO-TV reported.
The U.S. Coast said it temporarily detained five protesters in kayaks who tried to stop the vessel as it left Everett early Tuesday morning. The activists were brought to shore and issued citations for violating the safety zone around the drill ship, Chief Petty Officer David Mosley said. All were released.
Shell's other drilling rig, the Polar Pioneer, arrived in Alaska's Dutch Harbor on Saturday, Smith said in an email to The Associated Press. It will remain there until Shell has received the final permits it needs from the government to drill and the sea ice over the drilling area begins to clear.
Shell wants a 30-mile radius around the drill site to be free of ice before starting to drill, Smith said.
Shell experts are predicting the drill site over the Burger prospect in the Chukchi Sea will be clear the third week of July, and the company's drill fleet would move into the Bering Strait sometime after the first week of July to meet that target date, he said.
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Interior Reins In Shell’s Arctic Drilling Plans
Jun 30, 2015 | PoliticoPro - Whiteboard
By Elana Schor
The Interior Department today granted Shell authorization to disturb wildlife populations during its Arctic drilling bid this summer, but forced the company to tweak its plans by enforcing a 15-mile minimum distance between rigs to minimize the threat to walruses off the Alaskan coast.
The 15-mile buffer outlined in the Fish and Wildlife Service’s letter of authorization to Shell means that two wells crucial to the company’s multi-billion-dollar Chukchi Sea drilling plan cannot be drilled simultaneously during the region’s short summer season, because the wells in question are nine miles apart. Environmentalists and five Democratic senators have urged the White House to rescind its conditional approval for Shell to drill in light of the 2013 FWS regulation on minimum distance between wells.
“It is important to note that today’s action does not green-light Shell’s activity this summer, nor does it preclude Shell’s proposed activity,” Interior said in a statement accompanying the letter of authorization’s release. “If Shell’s exploration program proceeds this summer, it will be subject to compliance with all applicable regulations and conditions, including the [FWS authorization] and strong federal oversight.” -
Facts Supporting Keystone XL Pipeline Growing, TransCanada Tells State Department
Jul 1, 2015 | BNA Daily Environment Report
By Ari Natter
After nearly seven years of review, it's time to build the Keystone XL pipeline, TransCanada Corp. said in a letter to the State Department.
“Given the passage of time, the facts supporting the proposed project have continued to build,” Kristine Delkus, the Calgary-based company's executive vice president and general counsel, said in a June 29 letter.
The letter, addressed to Secretary of State John Kerry and Amos Hochstein, the State Department's special envoy and coordinator for international energy, was submitted as part of a “supplemental filing” in which the company pressed its case to allow construction of the 1,700 mile pipeline.
The State Department should consider Canadian policy developments related to global warming and greenhouse gas emissions when considering the application, the letter said.
“These developments include: the Canadian government's announcement of further greenhouse gas reductions; the announcement of enhanced GHG reduction measures by the government of Alberta; the [Group of Seven] agreement to take steps to decarbonize the world economy by 2100; and the establishment of a North American Energy Ministers Working Group on Climate Change and Energy,” the company wrote.
In addition, TransCanada said construction of the Keystone XL pipeline is consistent with the findings and recommendations of the Quadrennial Energy Review for greater integration of North American energy infrastructure and would decrease crude-by-rail shipments.
“In the absence of new pipeline infrastructure several crude oil loading facilities have been constructed, and proposed, to move crude oil by rail from Alberta,” the letter said.
State Department Approval Required
State Department approval of the project is required because the pipeline, which would carry crude from Alberta oil sands to Gulf Coast refineries in Texas, would cross an international boundary.
In February, President Barack Obama vetoed legislation (S. 1) that would have authorized the project and circumvented the ongoing administration review (37 DEN A-1, 2/25/15).
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Keystone Developer Says New Regulations Justify The Project
Jun 30, 2015 | The Hill - E2 Wire
By Devin Henry
Recent Canadian action on climate change helps justify the construction of the Keystone XL pipeline, a TransCanada executive said in a letter to Secretary of State John Kerry this week.
The Alberta government’s hike of the province’s carbon tax, as well as Canada’s commitment to international climate change agreements, means the Keystone project has to meet high environmental standards in both Canada and the United States, Kristine Delkus, TransCanada's executive vice president and general counsel, wrote in the letter.The United States government has been reviewing TransCanada’s application to build the Keystone pipeline for seven years. President Obama has said the project should only go forward if it doesn’t add to the problem of carbon pollution, something Delkus said will be proven by the new regulatory actions in Canada.
“There have been a number of recent and highly significant governmental policy developments related to carbon emissions and climate change concerns,” she wrote. “Each of these are directly relevant to the President’s statement that the proposed project will not be determined to be in the national interest absent a finding that it would not ‘significantly exacerbate’ climate change.”
In May, the Canadian government said it would cut its greenhouse gas emissions by 30 percent below 2005 levels by 2030 and issue regulations to get there. The country also joined other G-7 nations in pledging to reduce their reliance on fossil-fuels and cut greenhouse gas emissions by 40 percent to 70 percent by 2050.
The newly-elected left wing Alberta government said last week that it would double its carbon tax by 2017 in an effort to encourage fewer carbon emissions from the province and its oil sands.
If the Canadian governments take those steps, Delkus wrote, they would ensure what the company says is Keystone’s limited impact on the environment. The pipeline, she said, would also fulfill the need for more American energy infrastructure investment and relieve oil movement on railways.
“Clearly the developments with respect to Canadian, Alberta, North American, and international [greenhouse gas] policy, as well as recent industry positions and technological developments are all consistent with the President’s stance on not exacerbating the risk of climate change, as is TransCanada’s own clean energy footprint,” she wrote.
Congress passed a bill authorizing construction of the pipeline in February, but President Obama vetoed it. Kerry is reviewing final comments on the pipeline and will soon send a recommendation on the project to Obama, but there’s no deadline for when that might happen.
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EPA Must Put More Analysis Into Permit For Offshore Oil Drilling Waste in Beaufort
Jul 1, 2015 | BNA Daily Environment Report
By Alan Kovski
A general permit for discharge of waste streams in the Beaufort Sea during oil exploration was mostly upheld by a federal appeals court decision June 29, but the Environmental Protection Agency will have to do more analysis of one part of the Clean Water Act permit on remand from the court (Alaska Eskimo Whaling Comm'n v. EPA, 9th Cir., No. 13-70633, 6/29/15).
The Alaska Eskimo Whaling Commission asked the U.S. Court of Appeals for the Ninth Circuit to remand the National Pollutant Discharge Elimination System (NPDES) permit for more analysis to support additional restrictions on discharges of 13 waste streams.
The court ruled against the plaintiff on 12 of the waste streams but remanded the permit to the EPA for determination of whether non-contact cooling water could affect bowhead whales.
The court noted that the EPA had admitted it overlooked cooling water when it was estimating the rates and distances over which discharged waste waters would dissipate.
Intervenors in the case included two subsidiaries of Royal Dutch Shell Plc and another company interested in Arctic offshore oil exploration, ConocoPhillips Co.
Beaufort at Issue, Not Chukchi
The permit is for use from Nov. 28, 2012, through Nov. 27, 2017. The agency also issued an NPDES general permit for oil exploration in the Chukchi Sea, west of the Beaufort, but that permit was not challenged in this case.
The Alaska Eskimo Whaling Commission went to court on behalf of certain villages of Alaska natives who engage in subsistence hunting of bowhead whales.
The panel denied the petition in all other respects, because the EPA's issuance of the NPDES permit “is otherwise supported by the record evidence, does not reflect a failure to consider an important aspect of the problem, and is not otherwise arbitrary or capricious.”
The 13 waste streams covered by the permit are water-based drilling fluids and cuttings, deck drainage, sanitary wastes, domestic wastes, desalination unit wastes, blowout preventer fluid, boiler blowdown water, fire control system test water, non-contact cooling water, uncontaminated ballast water, bilge water, excess cement slurry, and the muds, cuttings and cement discharged at the sea floor.
Justice Department attorney Daniel Pinkston argued the case for the EPA. Christopher Winter of the Crag Law Center in Portland, Ore., argued for the plaintiff. Kyle Parker of Crowell & Moring LLP in Anchorage, Alaska, argued on behalf of intervenor Shell Gulf of Mexico Inc. and Shell Offshore Inc.
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Oklahoma Court Rules Earthquake Victim Can Sue Oil Companies
Jun 30, 2015 | Reuters
By Yeganeh Torbati
An Oklahoma woman who was injured when an earthquake rocked her home in 2011 can sue oil companies for damages, the state's highest court ruled on Tuesday, opening the door to other potential lawsuits against the state's energy companies.
Oklahoma has experienced a dramatic spike in earthquakes in the last five years, and researchers have blamed the oil and gas industry's practice of injecting massive volumes of saltwater left over from oil and gas drilling.
The state saw nearly 600 quakes of magnitude 3.0 or greater in 2014, compared to just one or two per year prior to 2009, according to the Oklahoma Geological Survey.
Oil production in Oklahoma has doubled in the last seven years, in part because drillers can dispose of vast amounts of saltwater found in oil and gas formations relatively cheaply by injecting it back into the ground.
That practice is separate from hydraulic fracturing or "fracking," which has been linked to some smaller quakes but is not believed to be causing Oklahoma's tremors.
Oklahoma, home to major energy companies including Chesapeake Energy Corp., Devon Energy Corp., and Sandridge Energy Inc., has already tightened regulations on injection wells. The state is considering tougher rules , and lawsuits would further boost costs for energy companies.
Falling rocks injured Sandra Ladra's legs when a 5.0-magnitude quake toppled her chimney in 2011. She has sued two Oklahoma oil companies, New Dominion LLC and Spess Oil Company, which operate injection wells near her home in Prague, Oklahoma.
A lower court ruled that the case had to go before the Oklahoma Corporation Commission, the regulator overseeing oil and gas, and dismissed Ladra's case in 2014.
On Tuesday, the Oklahoma Supreme Court reversed that decision, ruling that the commission's authority does not extend to the power to "afford a remedy" to those harmed by the violation of its regulations. The case will return to district court to decide whether Ladra should be granted any damages.
Ladra's lawyer, Arkansas-based Scott Poynter, told Reuters he can now move forward on several other potential suits from Oklahoma residents seeking compensation from energy companies for damages resulting from earthquakes.
Attorneys for New Dominion and Spess did not immediately respond to requests for comment.
Industry advocates on Tuesday downplayed the significance of the court's ruling, and cast doubt on whether Ladra and her attorneys could prove specific wells were responsible for the earthquake that caused her injuries.
Researchers say more work needs to be done to determine the exact mechanism of the link between underground injection and earthquakes, and whether location, volume, pressure, or other factors are the most significant.
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Oklahoma Court Rules Homeowners Can Sue Oil Companies Over Quakes
Jun 30, 2015 | The New York Times
By Richard A. Oppel Jr.
The Oklahoma Supreme Court ruled Tuesday that homeowners who have sustained injuries or property damage from rampant earthquakes they say are caused by oil and gas operations can sue for damages in state trial courts, rejecting efforts by the industry to block such lawsuits from being decided by juries and judges.
The case has been closely watched both by the energy industry and by fracking opponents across the United States, and the 7-to-0 ruling opens the door for homeowners in a state racked by earthquakes to pursue oil and gas companies for temblor-related damage.
It is the first time the court has specifically addressed whether plaintiffs could sue for damage that experts believe is typically caused by massive amounts of wastewater generated by oil and gas drilling — often involving hydraulic fracturing, or fracking — that are ultimately injected into underground disposal reservoirs near fault zones.
While such quakes rattle other places, Oklahoma, where oil and gas companies have outsize economic and political influence, has faced the brunt of them in recent years: In the past, the state typically had just one or two quakes of magnitude 3.0 or higher per year. But during a boom in fracking over the past decade, the number has steadily and sharply risen, to 585 last year, more than in any other state except Alaska.
This year, Oklahoma is on a pace for 1,100 quakes of magnitude 3.0 or higher.
Industry lawyers had argued that state law prevented trial courts from hearing lawsuits over wastewater-related quake damage, and that a state regulatory agency, the Corporation Commission, was the proper venue for such disputes.
But Scott Poynter, a Little Rock, Ark., lawyer for two Oklahoma homeowners who sustained severe quake damage in 2011, argued that the industry was just trying to keep their lawsuits from being decided by jurors who might award monetary damages.
Several of the worst quakes in the state’s history hit the tiny town of Prague in November 2011, including one that registered 5.7 and another that registered 5.0, which caused the tall chimney of Sandra Ladra’s home to crumble, sending down large pieces of stone that struck her as she sat in a recliner. Ms. Ladra suffered significant injuries to her knees and legs.
She filed suit against two companies that operate nearby wastewater disposal wells that she believed had caused the quakes. In October, however, lawyers for the well operators persuaded a state judge to dismiss the lawsuit, arguing that state law requires disputes to go before the Corporation Commission. Mr. Poynter, Ms. Ladra’s lawyer, appealed to the State Supreme Court, leading to Tuesday’s ruling.
Mr. Poynter said he had been investigating damage on behalf of clients in other areas of the state where “there has been a lot of shaking going on,” including Guthrie, Cushing and Stillwater. He believes Tuesday’s ruling may embolden more property owners to sue.
“People have been waiting on this decision,” he said, adding that he would proceed with Ms. Ladra’s lawsuit as well as with a separate class-action lawsuit related to the 2011 quakes.
The State Supreme Court did not take a position on Ms. Ladra’s underlying argument that wastewater disposal wells caused the quake that injured her and damaged her home, though the justices did note the “dramatic increase in the frequency and severity of earthquakes” in the state.Explaining their ruling, the justices cited “the long-held rule that district courts have exclusive jurisdiction over private tort actions when regulated oil and gas operations are at issue.”
Lawyers for the oil and gas companies sued by Ms. Ladra — the Spess Oil Company and New Dominion — did not return phone calls seeking comment on Tuesday. But during a court hearing in October, they warned a state judge that juries siding with plaintiffs in cases like this one would invite economic catastrophe.
If the companies are held liable at trial, “these wells will become economic and legal liability pariahs,” said Robert G. Gum, a lawyer for New Dominion. “They will be shut down.”
When the lawsuits were filed, top officials in Oklahoma were steadfastly insisting that the link between quakes and disposal wells was not clear.
But in April, state leaders did an unexpected about-face and embraced the scientific consensus. They even created a website that cited a determination by the state’s geological survey that “the majority of recent earthquakes in central and north-central Oklahoma are very likely triggered” by wastewater disposal wells.
Many in the industry, however, maintain that claims of a clear connection require more study.
According to Mr. Poynter, industry officials have been busy seeking protections from the Oklahoma Legislature, successfully winning passage of a law that restricts municipalities from regulating oil and gas wells within their jurisdiction.
He also said the industry had tried — but so far failed — to win passage of another law requiring a state-approved expert to first certify any lawsuits over wastewater-induced quakes.
“In other words, it was going to be the industry picking the experts,” Mr. Poynter said, calling it one of a number of proposals “designed to stymie our litigation or make it as difficult as possible for homeowners with earthquake damage to bring suit.”
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EIA Reports Add Natural Gas Production Data
Jul 1, 2015 | BNA Daily Environment Report
The U.S. Energy Information Administration is adding data from 10 states to its monthly reports on natural gas production in the U.S. The new states—Arkansas, California, Colorado, Kansas, Montana, North Dakota, Ohio, Pennsylvania, Utah and West Virginia—will dramatically increase the data the agency currently collects from Alaska, Louisiana, New Mexico, Oklahoma, Texas, Wyoming and the Gulf of Mexico, the agency said in a June 30 statement. EIA said it expanded the scope of the data collection in response to the significant increase in natural gas production over the past few years. -
‘Vigorous Debate' Expected on Mercury Rule After High Court Ruling, EPA Attorney Says
Jul 1, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency anticipates a “vigorous debate” on the future of its mercury and air toxics standards once the rule is formally remanded back to a federal appeals court, an agency attorney said June 30.
Lorie Schmidt, associate general counsel for air and radiation at the EPA, said the agency is “committed” to ensuring that the standards on power plant emissions of mercury and other hazardous air pollutants remain in place.
“We will continue to work to make that happen,” Schmidt said during a webinar hosted by the Environmental Law Institute.
The future of the mercury and air toxics standards is unclear following a June 29 U.S. Supreme Court decision that held the EPA was required to consider the cost of compliance when deciding it was “appropriate and necessary” to regulate mercury emissions from power plants. The Supreme Court, in a 5-4 opinion, reversed a 2014 federal appeals court decision that had upheld the standards and remanded the issue back to that court for further consideration (Michigan v. EPA, 2015 BL 207163, U.S., No. 14-46, 6/29/15; 125 DEN A-1, 6/30/15).
Wide Variety of Remedies Available
The U.S. Court of Appeals for the District of Columbia Circuit has a “wide range of options” on how to handle the mercury standards on remand, according to Harold Blinderman, a partner with Day Pitney LLP.
Blinderman told Bloomberg BNA June 30 that the D.C. Circuit could vacate the rule in its entirety, stay the rule while the EPA considers cost or decide to leave the rule in place during EPA consideration, because it would cause more harm to throw the rule out than to keep it. Blinderman noted that as a practical matter, the mercury and air toxics standards have been in place for more than three years and a majority of industry has already complied with the standards.
The effect of the D.C. Circuit's decision on the future of the mercury rule will largely be limited to about 170 power plants that received a compliance extension of up to one year, which gives them until April 2016 to come into compliance or shut down, Blinderman said.
Vacatur Request Expected
It will take about 30 days for the Supreme Court to formally transmit the mercury rule litigation back to the D.C. Circuit, Peter Glaser, a partner at Troutman Sanders LLP, said during the ELI webinar.
Glaser, who represented the National Mining Association in Michigan v. EPA, said once that happens, it is likely that at least one of the petitioners will ask the D.C. Circuit to vacate the rule in its entirety in light of the Supreme Court's decision.
Attorneys representing the Clean Air Task Force and the Environmental Defense Fund told Bloomberg BNA June 29 that they would oppose any request that the D.C. Circuit vacate or stay the mercury and air toxics standards.
A pair of environmental attorneys both pointed to the D.C. Circuit's past decision to leave the Clean Air Interstate Rule (CAIR), a Bush-era regulation on air pollution that crosses state lines, in place on remand. The circuit court declared that regulation was unlawful, but left the rule in place while the EPA worked on a replacement (North Carolina v. EPA, 531 F.3d 896, 67 ERC 1151, 2008 BL 146717 (D.C. Cir. 2008)).
“I'm very optimistic about the chances of the rule continuing in effect because that is consistent with case law in the D.C. Circuit that allows important health protections to remain in effect so the public is not harmed,” John Walke, clean air director for the Natural Resources Defense Council, said.
Walke told Bloomberg BNA June 30 that the status of the mercury and air toxics standards is very similar to the status of CAIR in 2008: regulated sources are already in compliance or are on the verge of compliance.
Graham McCahan, a senior attorney with the Environmental Defense Fund, said during the webinar that the case is “even stronger” for a remand without vacatur of the mercury standards than it was for CAIR. The D.C. Circuit in 2008 found several “fundamental fatal flaws” with CAIR, but left the rule in place to preserve the environmental benefits of the rule, according to McCahan. By comparison, the issue with the mercury and air toxics standards is a more narrow procedural ruling, he said.
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What the Supreme Court's EPA Decision Means For The Mercury Rule And Clean Power Plan
Jun 30, 2015 | The Hill - E2 Wire
By Richard Revesz
In the final ruling of an historic Supreme Court term, the Obama administration was handed a loss on Monday, but the fallout will likely be minimal. In a 5-4 decision written by Justice Antonin Scalia, the court found that the Environmental Protection Agency (EPA) should have considered costs when it first began the regulatory process for its Mercury and Air Toxics Standards.Some pundits have cast the Michigan v. EPA ruling as a major blow to the EPA's efforts to limit pollution from power plants. But the impact of this decision looks to be small: The mercury rule is likely to be upheld eventually and will probably remain in place until then, and there is absolutely nothing in this decision that threatens the legal theory undergirding the soon-to-be-released Clean Power Plan, which will regulate carbon dioxide emissions from power plants.
What this means for the mercury rule
The EPA's Mercury and Air Toxics Standards aim to reduce mercury, arsenic and other harmful pollution emitted by power plants. This rule is expected to reduce premature mortality from heart attacks and respiratory disease, creating between $37 billion and $90 billion in quantified benefits per year, versus $9.6 billion in compliance costs. But the industries and states that challenged the rule claimed that the EPA didn't consider costs early enough in the regulatory process. Five justices agreed, saying the EPA can establish that a regulation is "appropriate and necessary" only if the agency evaluates the compliance costs when it first considers regulating a pollutant. Instead, the EPA evaluated this rule's costs later in the regulatory process, when determining how stringent the standards should be for various categories of plants (the merits of this approach are discussed in a brief by the Institute for Policy Integrity, and in Justice Elena Kagan's dissent for the case).
The Supreme Court ruling did not invalidate the mercury rule, or even decide on a remedy for fixing it. The court merely remanded the rule back to the U.S. Court of Appeals for 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 responds to the Supreme Court's concerns.
The D.C. Circuit judges have often made use of "remand without vacatur" for other EPA regulations, such as the Clean Air Interstate Rule. There is good reason to use this technique here, because the EPA already conducted a cost-benefit analysis for this rule, finding it to be economically justified. The Supreme Court did not dispute that the direct and ancillary benefits of the rule vastly outweigh compliance costs. In fact, the most important part of the majority opinion is Scalia's acknowledgement that the court did not preclude the agency from taking the ancillary benefits of the regulation into account. The justices merely wanted costs to be considered at an earlier stage.
In the coming months, the D.C. Circuit — the same panel of judges that already upheld the rule — will remand the rule back to the EPA. They will likely do so without vacating it, citing the fact that the rule's benefits greatly exceed its costs. The EPA is then likely to say that the cost-benefit analysis that it already conducted is also relevant to the threshold determination on whether to regulate the toxic pollution from power plants. At that point, the D.C. Circuit is likely to uphold the rule, because the agency will have done what it was told to do and because the D.C. Circuit panel did not have a problem with the agency's cost-benefit analysis when the rule was first challenged. And the Supreme Court will likely decline to take up the case again, leaving the rule intact, because the case would no longer present the kind of discrete legal issue that tends to prompt Supreme Court review.
This Supreme Court ruling will certainly delay the final resolution of an important public health regulation that has been in the works since 2000, when the EPA made its "appropriate and necessary" finding. But the cost to the public will be somewhat muted, as the majority of power plants have already begun installing pollution controls to comply with this rule, which was finalized in 2012. And if the rule remains in place during the remand to the EPA, other plants will be required to follow suit even before the rule is ultimately upheld.
What this means for the Clean Power Plan
Reading the tea leaves on how courts might view the Clean Power Plan — President Obama's signature climate change initiative — has become a popular pastime in the energy world. Fossil fuel interests have trumpeted this ruling as evidence that greenhouse gas regulations are doomed. But the legal standing of the Clean Power Plan is essentially unaffected by this decision, and it remains strong.
The American Energy Alliance, a group linked to the Koch brothers, said in a statement: "[The] EPA can no longer ignore the costs of its reckless agenda. This decision shows that states should resist EPA’s calls to submit plans for the upcoming climate rule." Such statements are simply an effort to mislead the public about the Clean Power Plan, and have no connection to any plausible legal argument.
The Supreme Court ruled in 2007's Massachusetts v. EPA case that the EPA is required to regulate greenhouse gases under the Clean Air Act. It has affirmed the EPA's authority in two more cases, American Electric Power v. Connecticut, and last term's Utility Air Regulatory Group v. EPA. The Clean Power Plan is the agency's attempt to follow through on this court-mandated authority. The court has further specified that the agency can regulate emissions from existing power plants — the main subject of the Clean Power Plan.
The cost issues at the center of the mercury rule case do not apply to the Clean Power Plan, as the later rule was drafted under a totally separate Clean Air Act provision that explicitly calls for analysis of costs. The EPA has already conducted extensive economic reviews of the Clean Power Plan, which was designed to prioritize flexible compliance options and minimize costs. In short, nothing in this decision calls into question the legal legitimacy of the Clean Power Plan.
In a Supreme Court term filled with momentous cases, the repercussions of this ruling will be minor.
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High Court's View of EPA Deference Unclear After Mercury Pollution, Health Care Rulings
Jul 1, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
It's unclear how much deference the Environmental Protection Agency should expect to receive in the future from courts when the agency interprets statutory language, attorneys told Bloomberg BNA.
A string of recent decisions from the Supreme Court has called into question how much leeway the EPA and other federal agencies have when interpreting ambiguous statutory language, which lawyers said may indicate a shift in how courts oversee agency decisions.
James Rubin, counsel at Dentons US LLP, said that it is “pretty plain to see” that recent decisions on the Affordable Care Act and the EPA's mercury and air toxics standards indicate a potential shift in the amount of deference agencies can expect.
“There is a lot more brewing with Chevron deference,” Rubin said.
For more than 30 years, since a 1984 decision in Chevron U.S.A. Inc. v. NRDC, courts have applied a two-part test for judicial review of agency actions. Under Chevron, a court must first 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 (Chevron U.S.A. Inc. v. NRDC, 467 U.S. 843, 21 ERC 1049 (U.S. 1984).
Court Scrutinizes Agency Decisions
However, attorneys said a pair of 2015 rulings by the U.S. Supreme Court as well as a 2014 decision limiting the scope of the EPA's greenhouse gas permitting program could signal a shift in the court's willingness to defer to the EPA and other agencies.
The Supreme Court in King v. Burwell, a 6-3 opinion authored by Chief Justice John Roberts, didn't use the Chevron framework to uphold the federal government's decision to make federal tax credits available under the Affordable Care Act in states that didn't set up their own health care exchanges, despite statutory language indicating that such tax credits were only available to people who participated in exchanges set up by the state.
In the opinion, Roberts said it was an “extraordinary case” that was outside of Chevron's domain because the tax credit issue was of “deep economic and political significance.”
The court also declined to apply the Chevron doctrine because the court found it “especially unlikely” that Congress would mean to leave such an interpretation up to the Internal Revenue Service, an agency that has no expertise in crafting health care policy (King v. Burwell, 2015 BL 202885, U.S., No. 14-114, 6/25/15).
Case Called ‘Extraordinary Decision.'
“Burwell was an extraordinary decision in terms of statutory construction,” Peter Glaser, a partner at Troutman Sanders LLP, said during a June 30 webinar hosted by the Environmental Law Institute.
Glaser, who represented the National Mining Association in challenges to the mercury and air toxics standards, said the health care ruling is a “real negative” for the EPA's climate agenda because the agency is expecting to receive deference from the courts.
In Michigan v. EPA, a 5-4 decision with an opinion authored by Justice Antonin Scalia, the court found that the EPA's interpretation of the phrase “appropriate and necessary” in Section 112(n)(1)(A) of the Clean Air Act was unreasonable.
The court held the EPA was required to consider the cost of compliance when deciding whether it was appropriate and necessary to regulate emissions of mercury from power plants, a determination that triggered promulgation of the mercury and air toxics standards, a regulation the EPA estimated would cost the power industry $9.6 billion annually (Michigan v. EPA, 2015 BL 207163, U.S., No. 14-46, 6/29/15; 125 DEN A-1, 6/30/15).
‘Cracks' Seen in Deference Doctrine
Thomas Lorenzen, a partner with Crowell & Moring LLP who formerly worked at the Justice Department, told Bloomberg BNA that both decisions show a potential shift in the amount of deference EPA should expect to receive in the future.
In the King v. Burwell opinion, the court decided not to defer to the IRS because the agency had no expertise and because the question was “simply too important” to defer to the agency, Lorenzen told Bloomberg BNA.
Meanwhile, in the Michigan v. EPA decision, the court declined to defer to the EPA on its interpretation of a “quintessentially ambiguous term,” Lorenzen said.
“We're starting to see cracks in Chevron deference,” Lorenzen said.
Both Lorenzen and Rubin highlighted a concurring opinion in Michigan v. EPA authored by Justice Clarence Thomas, which argued that the Chevron doctrine raises “serious separation-of-powers” questions. Thomas wrote that deferring to agency interpretation precludes judges from exercising independent judgment of what is the best reading of ambiguous statutory language in favor of an agency's construction.
Thomas advocated for the elimination of the Chevron doctrine, but no other justice signed onto his concurring opinion, indicating that he doesn't have a majority to support that, Lorenzen said.
Implications for Climate Agenda
Janet McCabe, EPA's acting assistant administrator for air and radiation, wrote in a June 30 blog post that the Supreme Court's decision on the mercury and air toxics standards won't affect the Clean Power Plan, the agency's rulemaking (RIN 2060-AR33) to limit carbon emissions from existing power plants.
However, a shift in the Supreme Court's view of deference could affect the legality of the Clean Power Plan once the agency issues its final regulation, expected by the end of August.
The agency has argued that 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 (125 DEN A-3, 6/30/15).
Conflicting amendments to Section 111(d) were signed into law in 1990, with language in the House amendments suggesting that the EPA would be barred from regulating sources under Section 111(d) that are already subject to Section 112 air toxics standards, as are power plants.
Lorenzen said the King v. Burwell decision, along with a 2014 decision that struck down the EPA's tailoring rule for greenhouse gas emissions, both hint that the Supreme Court will be skeptical of attempts by the agency to regulate vast segments of the economy (Util. Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 78 ERC 1585, 2014 BL 172973 (2014; 121 DEN A-1, 6/24/14).
The EPA will have to proceed with “extreme caution” in its attempt to regulate carbon emissions from power plants, Lorenzen said.
Health Care Ruling More Significant
Attorneys said that the Supreme Court's health care ruling will have more of an effect on future EPA action than the mercury ruling.
Robert McKinstry, partner and practice leader of the Climate Change and Sustainability Initiative at Ballard Spahr LLP, agreed during the Environmental Law Institute webinar that the health care ruling would have a “more significant and lasting role” on statutory construction than the “narrow” mercury ruling.
Ballard Spahr represented several power companies, including Calpine Corp. and Exelon Corp., that intervened in the mercury rule litigation on behalf of the EPA.
McKinstry said the “new Roberts rule” of statutory construction could benefit the EPA's defense of the Clean Power Plan because Roberts decided to eschew a Chevron analysis in order to look at the intent of the statute as a whole.
Looking at the overall structure of the Clean Air Act and the 1990 amendments would boost the EPA's arguments that the statute did not mean to bar regulation of power plant emissions of carbon dioxide because the plants are already subject to regulations for other pollutant emissions, he said.
Opponents Get ‘Brand New' Case to Cite
Lisa Heinzerling, the Justice William J. Brennan Jr. professor of law at the Georgetown University Law Center, said in a blog post that the King v. Burwell decision will give opponents of the Clean Power Plan a “brand-new, important, six-justice case” to cite in support of arguments that “sheer economic and political magnitude” of regulating carbon emissions means that the EPA should not use the Clean Air Act to do so.
“In proposing to regulate greenhouse gas emissions from power plants under section 111 of the Clean Air Act, EPA has thoroughly wrapped itself in Chevron's flag,” she wrote. “It is at least arresting, therefore, and maybe even startling, that in a brand-new case of huge importance, with six Justices on board, the Supreme Court was willing to dump the Chevron framework and go it alone, without the relevant agency.”
Mercury Ruling Stayed Within Framework
Several attorneys said it was notable that the Michigan v. EPA opinion stayed within the framework of Chevron.
John Walke, clean air director at the Natural Resources Defense Council, told Bloomberg BNA that there was “speculation and anxiety” in advance of the ruling, the last of the court's 2014-2015 term, that the court would ground its ruling on the mercury rule in the same exception as the health care decision.
A similar decision on the mercury rule, which the EPA estimated would cost industry $9.6 billion a year, could have opened up a whole new area of law by deeming such cases of “sufficient economic and political importance” to not defer to an agency's interpretation, he said.
“Thankfully, the decision was grounded in the Chevron framework,” Walke said.
Bicky Corman, a partner at Venable LLP who previously served as deputy general counsel at the EPA, agreed that it was notable that the Supreme Court did not use the same reasoning as it did in King v. Burwell to decide on the mercury rule. The court still “heeded what the agency had to say” on the cost issue, even though the court ruled it was an unreasonable interpretation, she said.
Future Implications Unclear
Walke said he believes the court “badly misapplied Chevron” in deciding the EPA was required to consider the cost of regulating power plant emissions of mercury. However, it remains “an open question” whether it's a one-time incident or whether it signals the beginning of a “broader intrusion” by the court to second guess agency action.
Resolution of that open question can only play out in future Supreme Court opinions and in how the Michigan v. EPA opinion is interpreted in lower courts, Walke said.
Kevin Desharnais, a partner at Mayer Brown LLP, said the Supreme Court's decision on the mercury and air toxics standards could serve as a “cautionary note” to the agency on how it views Chevron deference.
“They were viewing it as unbridled discretion,” Desharnais told Bloomberg BNA.
Decision May Set Outer Limits
While it is clear that “appropriate and necessary” was ambiguous language, the court found that the EPA's interpretation was “well beyond” what is reasonable, Desharnais said.
The mercury and air toxics standards decision could help define the “outer limits” of deference that the courts will provide to agencies, Desharnais said, though an additional decision may be needed to define what the actual limits are.
“This certainly sets an outer bound,” Desharnais said.
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SCOTUS Says EPA Must Now Consider Costs. Are Benefits Next?
Jul 1, 2015 | The Hill - Contributors
By Stuart Shapiro
The Supreme Court ruled on Monday in Michigan v. EPA that statutory language directing the Environmental Protection Agency (EPA) to consider "appropriate and necessary" factors when regulating power plant mercury emissions included costs to the power plants. The short-term effect of the ruling may be minimal, as power plants have been complying with the regulation since it went into effect earlier this year and are unlikely to simply stop doing so.
However, the longer term implications are potentially important. A lower court will now probably order the EPA to consider costs and reexamine the regulation. The EPA, which already estimated the costs of the mercury rule at $9.6 billion, will probably turn around and quickly say that these costs are dwarfed by the benefits of the rule. They will argue that the costs have thus been considered, and the regulation should go into effect. Then things will get interesting.
The EPA estimates the benefits of the rule as ranging from $37 billion to $90 billion per year. Indeed, these numbers were cited in Justice Elena Kagan's dissent from Michigan v. EPA as a reason that the issue of considering costs was not sufficient to overturn the mercury rules. However, the plaintiffs in the case described the benefits as only $5 million per year and this number played a role in Justice Antonin Scalia's majority opinion in the case.
Why the huge difference? It comes down to whether you count "co-benefits." The $5 million number cited by plaintiffs consists of the direct benefits of reducing exposure to mercury as measured by the EPA in their cost-benefit analysis of the regulation ($5 million is likely significantly lower than the actual benefits from reducing mercury exposure because the EPA only counted measurable impacts on people who lived near power plants, but this is not what accounts for the different numbers). The $37 billion to $90 billion estimate includes the benefits of reducing exposure to particulate emissions, which will happen as a side effect of power plants reducing their mercury emissions. Particulate matter exposure is a significant factor in heart disease and cancer.
The difference between these numbers played a significant role at oral argument in Michigan v. EPA. On the one hand, it seems clear that an agency should count all effects, costs or benefits of a regulation when they tally up its impact. Certainly, advocates for industry have long argued that indirect costs such as lost jobs or changes in market conditions should be counted.
On the other hand, the EPA has a standard for particulate matter. By statute, the EPA is required to set this standard at a level "requisite to protect the public health ... allowing an adequate margin of safety." This raises the following question: If the EPA is already protecting public health, then why are there thousands of lives saved adding up to billions of dollars in benefits, for reducing particulate emissions further? If all of these lives will be saved, shouldn't we have a lower particulate emissions standard?
This seemingly arcane accounting question has wide implications. The EPA has regularly used public health benefits from particulate emissions to justify many regulations designed to reduce other pollutants. If, upon returning to the Supreme Court to defend its mercury regulation, the EPA is told that this practice is illegitimate, the court will both reject the mercury rule and make it more challenging for the EPA to defend many of its future air pollution regulations.
Near the end of his opinion, Justice Scalia telegraphed that this question might be in the court's near future, writing: "Even if the Agency could have considered ancillary benefits when deciding whether regulation is appropriate and necessary — a point we need not address ... " They may need to address it soon.
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Utility Groups Sue EPA Over Mercury Rule Reconsideration Despite High Court Ruling
Jul 1, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Hawaiian Electric Co. Inc. and the Utility Air Regulatory Group both challenged the Environmental Protection Agency's decision to deny a reconsideration request on the agency's mercury and air toxics standards for power plants (Hawaiian Elec. Co., Inc. v. EPA, D.C. Cir., No. 15-1193, 6/29/15; Util. Air Regulatory Grp. v. EPA, D.C. Cir., 15-1191, 6/29/15).
Both parties filed their lawsuits June 29, the same day the U.S. Supreme Court ruled against the EPA on the mercury standards, finding that the agency acted unreasonably when it did not factor cost consideration into its decision that it was “appropriate and necessary” to regulate power plant emissions. The court, in a 5-4 decision, remanded the litigation back to the U.S. Court of Appeals for the District of Columbia Circuit for further proceedings (Michigan v. EPA, 2015 BL 207163, U.S., No. 14-46, 6/29/15; 125 DEN A-1, 6/30/15).
The Utility Air Regulatory Group is one of the petitioners that prevailed in Michigan v. EPA.
The MATS rule remains in place for now pending further action by the D.C. Circuit, a development that required the Hawaiian Electric Co. to file a lawsuit in order to preserve its claim against the agency, Debra Jezouit, a partner at Baker Botts LLP representing Hawaiian Electric, said.
“We have to preserve that issue just in case D.C. Circuit leaves the MATS rule in place,” Jezouit told Bloomberg BNA June 30.
Hawaiian Electric requested that the EPA reconsider its treatment of non-continental oil-fired power plants. Jezouit said the company thinks that EPA's analysis for those plants was flawed.
The Hawaiian Electric and Utility Air Regulatory Group petitions for review both challenged the EPA's April decision to deny all remaining reconsideration requests on the mercury and air toxics standards. ARIPPA, an association of power companies that generate alternative energy and steam from coal mining refuse, filed a lawsuit earlier in June challenging the EPA's refusal of its reconsideration request, which focused on the effect of the rule's hydrogen chloride emissions limit on ARIPPA member companies (ARIPPA v. EPA, D.C. Cir., No. 15-1180, 6/23/15; 121 DEN A-4, 6/24/15).
Jezouit said the D.C. Circuit may decide to hold litigation on the reconsideration requests in abeyance pending resolution of the MATS remand. However, Hawaiian Electric thinks its issue with the rule should be considered and hopes that the court allows the case to proceed without waiting for action on the MATS remand, she said.
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EPA: Supreme Court Ruling Won’t Stop Climate Rules
Jun 30, 2015 | The Hill - E2 Wire
By Timothy Cama
The Supreme Court’s decision against a key Obama administration air pollution rule is not stopping regulators from moving forward on the government’s most ambitious climate change rule.
Janet McCabe, head of the air pollution office at the Environmental Protection Agency (EPA), characterized the Monday ruling in Michigan v. EPA as “very narrow,” and said it does not affect any other air or climate regulations.“The decision does not affect the Clean Power Plan, which EPA will be finalizing later this summer and which will chart the course for this country to reduce harmful carbon from its fleet of existing power plants,” McCabe wrote in a Tuesday blog post, referring to the EPA’s proposed limits on carbon dioxide output from the power sector.
“This decision does not affect other Clean Air Act programs that address other sources and types of air pollution … it means that rules and programs that reduce other types of pollutants under other sections of the Clean Air Act — like ozone and fine particles (smog and soot) can continue without interruption or delay,” she continued.
The Monday ruling faulted the EPA’s process for writing limits on mercury, arsenic and other toxic air pollutants from power plants. It did not strike the rule down, instead leaving it to a lower federal court to decide.
Republicans, the energy industry and other opponents of President Obama’s environmental rules celebrated the decision has a major rebuke of the EPA that should slow its landmark climate rule, among others.
But McCabe disagreed.
She called the decision “disappointing to everyone working to protect public health by reducing emissions of mercury and other toxic air pollutants from coal- and oil-fired power plants,” but said it does nothing to change other regulations or make the agency think twice about how it regulates.
Specifically, the Supreme Court faulted the EPA for not considering the costs of the mercury regulation before it started to consider such rules.
The agency only considered costs during the regulatory process, which it does with most rules, and will continue to do, McCabe said.
Officials have not said what they will do next with the mercury rule, including whether they will seek to remedy the problem that the Supreme Court identified.
“There are questions that will need to be answered over the next several weeks and months as we review the decision and determine the appropriate next steps once that review is complete,” McCabe wrote.
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U.S. Leaves the Markets Out in the Fight Against Carbon Emissions
Jun 30, 2015 | The New York Times
By Eduardo Porter
In 1990, by an overwhelming majority, Congress amended the Clean Air Act to establish a market for electric utilities to trade the right to emit sulfur dioxide, one of the main contributors to acid rain.
The law was based on a simple economic insight. If utilities facing high costs to cut emissions could, instead, buy allowances to pollute from those who could cut emissions for less, reducing overall pollution would be much cheaper. The idea had been successfully used before, during the Reagan administration, to reduce lead in gasoline.
It worked again. By 1996, sulfur dioxide emissions had declined by a fifth. A study published a few years later concluded that trading of pollution permits cut the cost almost by half, saving utilities and their customers billions of dollars.
Here’s the not-so-funny punch line: A decade and a half later, when President Obama proposed using “cap and trade” to cut emissions of greenhouse gases — the biggest environmental threat of our time — lawmakers looked back upon this unquestionable success and said “no.”
Members of Congress have changed, of course. Many Republicans who say that climate change is a myth or believe that the Obama administration is engaged in an unnecessary “war on coal” may have been hoping to block any environmental program. What they achieved, however, was to direct the nation’s efforts to combat climate change in a much more expensive direction.
“It is a mystery,” said Gilbert E. Metcalf, an economist at Tufts University specializing in energy and the environment, “why the Republican Party drives environmental policy away from using Adam Smith’s invisible hand.”
There is plenty of evidence of the high cost of regulation. Sebastian Rausch, from the Center for Economic Research at ETH University in Zurich, and Valerie J. Karplus from the Massachusetts Institute of Technology have modeled how a cap-and-trade policy would look compared to a variety of regulatory options — including a federal renewable portfolio standard, a clean energy standard, fuel economy standards and the like.
A standards-based policy, which is what we have now, is generally much more inefficient, delivering only one-fourth the emissions reductions of cap and trade for the same cost.
“The politics are making the administration do things in a much more expensive way,” said Michael J. Graetz of Columbia Law School, “than if the Congress had acted to do something about climate change.” Continue reading the main story Related Coverage Global Climate Pact Gains Momentum as China, U.S. and Brazil Detail PlansJUNE 30, 2015 China Pledges to Halt Growth of Carbon Emissions in Climate PlanJUNE 30, 2015
Other research points in the same direction. My column last week highlighted an assessment of the federal weatherization program by three top environmental economists. The findings, though heavily criticized by the Energy Department, were nonetheless discouraging. Residential weatherization reduced carbon emissions at a cost of $329 per ton, about 10 times as much as the Obama administration’s estimate of the damage that carbon in the atmosphere imposes on society. Continue reading the main story Costing Carbon
In most European countries, high energy taxes help limit carbon emissions. But the nations that consume the most energy impose little cost for the damage from burning fossil fuels.
By contrast, price-based tools — emissions permits traded on open markets or taxes that provide polluters an incentive to cut emissions — are efficient because they spread the cost of abatement throughout the entire economy. As Robert N. Stavins, who heads the Harvard Environmental Economics Program, points out, using regulatory standards to limit greenhouse gas emissions from many millions of households, factories, farms, cars, trucks — all of which face very different costs of abatement — would be an implausibly complex task.“The only way to do this is to send information through markets,” Professor Stavins said. An economywide carbon price, he argues — as does much of the economics profession, including many Republicans — would give everybody the incentive to reduce emissions at the lowest possible cost.
But little progress has been made. While carbon is often implicitly priced via excise taxes and other taxes on energy, the price tag is almost always too low to encourage substantial reductions in CO2 emissions.
Economists at the Organization for Economic Cooperation and Development estimated that the effective tax on carbon among the world’s 41 biggest polluting nations, which account for some 84 percent of global carbon emissions from energy, amounted to about $16.60 per metric ton of CO2, on average. That’s about $20 less than the estimate of carbon’s social costs.
China, the United States, Russia and India, which generate more than half of the world’s greenhouse gas emissions, price CO2 at less than $5.50 a metric ton. In Russia, the world’s third-largest emitter, the implicit tax on carbon from energy use is roughly zero.
What’s worse, subsidies to fossil fuels around the world reach into the hundreds of billions of dollars a year, putting a thumb on the scale in the wrong direction. Taxes on coal — the most polluting fuel — are often zero. Across the 41 countries evaluated by the organization it was taxed, on average, at $1.75 per metric ton of CO2.
“The overall landscape of energy taxation in most countries does not correspond well with the features commonly associated with effective environmental taxation,” the organization’s report concluded.
Can devastating climate change be averted without properly pricing carbon? Probably not.
To be sure, prices cannot do the job alone. The world also needs an intense, concerted investment effort to develop new energy technologies. But it also needs to put in place a powerful incentive to move away from fossil fuels that avoids being so expensive that it is politically untenable.
Unfortunately, some influential people are pushing the wrong way. Two weeks ago, Pope Francis made a case for aggressive action against climate change, but then rejected the use of markets to help do the job.
Trading carbon permits “can lead to a new form of speculation, which would not help reduce the emission of polluting gases worldwide,” he wrote. “It may simply become a ploy, which permits maintaining the excessive consumption of some countries and sectors.”
Mr. Metcalf of Tufts worries that the pope’s views could complicate the effort to forge a worldwide climate agreement in Paris in December. “What we don’t want is the Paris agreement to try to shut down markets,” he told me. “There’s a lot of pressure to inject some of the language about their negative aspects.”
Still, for all the skepticism from many quarters, the evidence that prices can do the job better than anything else is starting to sink in. The World Bank tallied eight new carbon markets that opened their doors in 2013. China is experimenting with seven carbon market pilot programs and is expected to start a nationwide trading program next year. Mexico and France introduced new carbon taxes last year. Mexico cut its oil subsidies.
President Obama’s clean power plan might lead to more carbon pricing, encouraging states to reduce their emissions by joining regional carbon exchanges.
Even Republicans might be brought on board. Professor Graetz at Columbia argues there is a good case for a carbon tax as part of a broad fiscal overhaul, using the revenue to offset cuts in payroll taxes.
Taxing carbon, a “bad,” to reduce taxes on wages, a “good,” could improve economic efficiency. And it could disentangle the debate over climate change from the perennial ideological battle over the size of government.
In the end, opposition to effective climate change policies will not stop the fight against climate change. But it can, unfortunately, prevent the fight from being done in the smartest possible way.
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California Greenhouse Gas Emissions Fall — But Not By Much
Jul 1, 2015 | SF Gate
By David R. Baker
Despite California’s many efforts to fight global warming, the state’s greenhouse gas emissions rose in 2012, as a nuclear power plant shut down and the drought hit hydroelectric dams hard.
But the increase, it turns out, didn’t last.
Data released by the state on Tuesday show that California’s emissions of carbon dioxide and other heat-trapping gases started falling again in 2013. The drop wasn’t much, just 0.3 percent. The state’s economy still pumped almost 460 million metric tons of greenhouse gases into the atmosphere, according to the California Air Resources Board.
But considering the circumstances, state officials still consider that a success.
The California economy grew 2 percent in 2013. At the same time, the deepening drought continued to cut the output of hydroelectric dams, forcing utilities to rely more on power plants burning natural gas. And the owners of the San Onofre nuclear plant north of San Diego decided to close the plant for good. All of those factors could have pushed greenhouse gas emissions higher.
Why didn’t they? The amount of renewable power generated within the state surged, with wind power production jumping 32 percent and solar rising 13 percent, according to the air resources board. And the state finally closed several old power plants that burned petroleum coke, a byproduct of the oil refining process.
“This inventory provides convincing evidence that California can grow its economy and continue to fight climate change,” said Mary Nichols, the board’s chairwoman. “No longer must economic growth result in smokestacks and pollution.”
California’s emissions peaked in 2004 at over 495 million metric tons and have since fallen 7 percent. But the state’s emissions are still higher than they were in 2010 — before the drought began — when they dropped to 456 million metric tons.
State law calls for cutting the state’s greenhouse gas emissions back to 1990 levels — an annual total of about 431 million metric tons — by 2020. And Gov. Jerry Brown has set a goal of reducing emissions 40 percent below 1990 levels by 2030.
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More Than Half of States Sue EPA To Block Rule on Water Jurisdiction
Jul 1, 2015 | BNA Daily Environment Report
By Chris Marr
Nine more states sued to block the Environmental Protection Agency's new clean water rule a day after publication of the final rule, which now faces litigation from more than half of the states (State of Georgia v. McCarthy, S.D. Ga., No. 2:15-cv-00079, 6/30/15.
The joint lawsuit, filed June 30 in the U.S. District Court for the Southern District of Georgia, accuses the Environmental Protection Agency and the U.S. Army Corps of Engineers—led by Gina McCarthy and Jo Ellen Darcy, respectively—of attempting to take over states' responsibility for managing and protecting intrastate waters and lands.
Led by Georgia Attorney General Sam Olens (R), the state attorneys general argue the rule amounts to a federal overreach that violates the Clean Water Act, the Administrative Procedure Act and the U.S. Constitution.
“Contrary to the plain terms of the Clean Water Act and the Supreme Court's decisions interpreting that Act, the Final Rule asserts that the Agencies have virtually limitless power over non-navigable intrastate waters,” the state of Georgia writes in its complaint.
Joining Georgia as plaintiffs in the case are Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, West Virginia and Wisconsin. The states asked the federal court to vacate the rule, block its enforcement by injunction and remand the rule to the EPA and Corps of Engineers for rewriting.
Prior to the Georgia filing, at least 18 states joined together in a handful of other federal lawsuits opposing the rule on June 29, the same day as its publication in the Federal Register (125 DEN A-4, 6/30/15).
States Predict Regulation of ‘Ditches.’
The final rule, also called the “waters of the U.S.” rule (RIN 2040-AF30), is due to take effect Aug. 25 and to be considered final July 13 for judicial review.
The rule aims to define which bodies of water fall under the federal jurisdiction of the Clean Water Act.
In the Georgia complaint, the states describe the rule's definition as being overly broad, so as to potentially include “large categories of intrastate waters and sometimes wet lands—from minor roadside ditches, to ephemeral streams, to creeks, ponds and streams that lie where the Agencies believe water may flow once every hundred years.”
The expansion of federal authority would not only infringe on states' own authority but also place “significant burdens upon homeowners, business owners, and farmers by forcing them to obtain costly federal permits in order to conduct activities on their lands that have no significant impact on navigable, interstate waters,” according to the Georgia complaint.
Mining Company Sues
At least one business also sued to block the new water rule. The Ohio-based coal mining company Murray Energy filed suit against the EPA and the Corps of Engineers, along with McCarthy and Darcy, on June 29 in the U.S. District Court for the Northern District of West Virginia (Murray Energy v. EPA, N.D. W.Va., No. 1:15-cv-00110, 6/29/15.
Like the states, Murray alleges that the agencies violated federal law and the constitution by reaching beyond their authority, while also failing to adequately address the concerns raised in the form of public comments during the rulemaking process.
Murray's mine sites contain various ditches and ponds that would be subject to federal regulation under the definitions provided in the new Clean Water rule, according to Murray's complaint. These water features are frequently affected by site construction work and daily mine operations, including filling some water bodies with dirt or gravel while allowing other water bodies to receive and discharge stormwater runoff.
“Complying with the final rule for these features will cost Murray substantial sums of money to apply for, obtain, and comply with permit conditions, in lost productivity resulting from an inability to utilize a mine site in an efficient manner, and in a general devaluation of its mine holdings,” the company writes in its complaint.
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Nine More States Challenge EPA’s Water Rule
Jun 30, 2015 | PoliticoPro - Whiteboard
By Jenny Hopkinson
Another nine states have filed suit against EPA’s clean water rule, bringing the total number of states challenging the revised definition of waters of the United States to 27.
The latest lawsuit was filed this morning in the U.S. District Court for the Southern District of Georgia by the attorneys general of that state, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin.
The suit largely mirrors the three filed Monday. It alleges that the final rule gives EPA and the Army Corps of Engineers “virtually limitless power over non-navigable, intrastate waters.” The states argue that the rule violates the Clean Water Act, Administrative Procedure Act, the Commerce Clause and state sovereignty under Tenth Amendment and ask the court to vacate the measure. -
States' Suits Claim EPA 'Waters' Rule Violates Federal Laws, Constitution
Jun 30, 2015 | InsideEPA
By Lara Beaven
At least 14 states have filed three separate lawsuits in federal district courts over EPA's Clean Water Act (CWA) jurisdiction rule claiming it violates the water law, the Administrative Procedure Act (APA) and the Constitution --- among the first of what are expected to be multiple challenges to the rule filed in various venues and citing differing legal claims.
Ohio and Michigan filed their suit, The State of Ohio, et al. v. United States Army Corps of Engineers, et al., June 29 in the U.S. District Court for the Southern District of Ohio, Eastern Division, the same day EPA and the Corps published their joint final regulation in the June 29 Federal Register.
Texas, Louisiana and Mississippi also sued the federal agencies June 29, filing their suit, State of Texas, et al. v. EPA, in the U.S. District Court for the Southern District of Texas.
And a group of nine states, led by Georgia, filed suit June 30 in the U.S. District Court for the Southern District of Georgia. The plaintiffs in State of Georgia, et al. v. Regina McCarthy, et al. are the state attorneys general for West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah and Wisconsin.
Texas, Louisiana and Mississippi also filed a similar suit in the U.S. Court of Appeals for the 5th Circuit, noting the legal uncertainty over whether district or appellate courts have original jurisdiction to hear the case.
In the June 29 Federal Register, the agencies said that the rule is effective on Aug. 28 and “this regulation shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on July 13, 2015.”
The quick filing of the states' cases in district court is significant given what legal experts have said is great uncertainty over the appropriate venue and timing of litigation over the rule.
Hunton & Williams attorney Diedre Duncan predicted in early June that given the CWA's 120-day statute of limitations for judicial review, there is likely to be a "race to the courthouse with multiple litigants," after the rule is promulgated. But that litigation clock applies only to appeals court review, and sources say it is unclear whether appellate courts have jurisdiction to hear a challenge to the rule.
All of the district court suits make similar arguments challenging the scope of the final jurisdiction rule and its allegedly adverse impact on states.
For example, Ohio and Michigan say, “This case involves a renewed effort by two federal agencies, in the face of contrary statutory language and Supreme Court precedent, to expand their regulatory scope far beyond those waters, and to claim authority over areas that federal law properly leaves to state supervision and care.”
'Overreaching' Rule
Ohio and Michigan also claim that through the “overreaching Rule, these federal agency Defendants injure the States of Ohio and Michigan as landowners, as regulators (including as regulators of State waters), as trustees of the natural resources of the States, as guardians of the interests of their residents, and as keepers of their sovereign territory.”
The states led by Georgia say their case “involves an attempt by two agencies of the federal government to usurp the States' primary responsibility for the management, protection, and care of intrastate waters and lands,” in violation of the Constitution's 10th Amendment.
“This rule is a staggering overreach by the federal government and violates the very law it claims to enforce,” West Virginia Attorney General Patrick Morrisey (R) said in June 30 statement on the suit filed by the nine states. “It will have dire consequences for homeowners, farmers and other entities by forcing them to navigate a complex federal bureaucracy and obtain costly permits in order to perform everyday tasks like digging ditches, building fences or spraying fertilizers.”
The states led by Texas argue, “The success of protecting and improving the quality of American waters has come through the cooperative work of the states and the federal government. That success is threatened when administrative agencies attempt to substitute their judgment for decisions by Congress, the courts, and the states. Moreover, the very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts.”
Specifically, these states say the rule harms them “by (1) expanding the number of waters subject to federal regulation; (2) eroding the states’ authorities over their own waters; (3) increasing the states’ burdens and diminishing the states’ abilities to administer their own programs; and (4) undermining the states’ sovereignty to regulate their internal affairs as guaranteed by the Constitution.”
The rule is designed to resolve uncertainty about the reach of the law following a 2006 Supreme Court ruling that created competing tests for assessing CWA jurisdiction, as well as an earlier 2003 high court ruling, Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, and an influential 1985 9th Circuit ruling, United States v. Riverside Bayview Homes.
EPA, environmentalists and others argue that the rule provides much-sought clarity on the law's scope, but the GOP, industry and others counter that it expands the CWA's reach far beyond what Congress intended.
The rule automatically applies jurisdiction to all tributaries and adjacent waters, or waters bordering, neighboring or contiguous to other jurisdictional waters.
It also lists five specific types of “similarly situated” waters in regions that science shows should be subject to a case-by-case analysis to determine whether there is a “significant nexus.” These waters are prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California and Texas coastal prairie wetlands.
And waters within a 100-year floodplain of other waters would be subject to case-by-case jurisdictional analysis, while a host of water features, such as ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary, groundwater, erosional features, and stormwater control features would be excluded from jurisdiction.
Jurisdictional Waters
All three state suits take issue with the rule's definitions of jurisdictional waters, with the states led by Georgia saying the rule's categorization of all tributaries as waters of the United States violates both of the Supreme Court's tests in Rapanos v. United States.
The states led by Georgia say the rule violates both the test outlined by Justice Anthony Kennedy in his concurring opinion and the one outlined by Justice Antonin Scalia in the plurality opinion. It violates the Kennedy test because it places tributaries within the agencies' regulatory authority without regard to a tributary's actual impact on the “chemical, physical, and biological integrity of” any primary water.
And it violates the Scalia test because the definition includes a feature with any flow into a primary water, even if that flow does not constitute a “continuous surface connection,” Georgia's brief says.
The states make similar arguments about the rule's per se coverage of all adjacent waters and per se coverage of intrastate waters with a significant nexus to primary waters.
Ohio and Michigan say the final rule “appears informed far more by the dissent in Rapanos than by the four-Justice plurality or Justice Kennedy’s concurrence: indeed, Defendants’ Technical Support Document (at pages 37-40) in its introductory discussion of 'Supreme Court Decisions' devotes five paragraphs and two and one half pages to a fulsome discussion of the Rapanos dissent, while giving just one short-shrift paragraph each (and a total of one page) to the plurality and the Kennedy concurrence.”
The states led by Texas says the final rule has a “misplaced” reliance on the Kennedy test. “While the Federal Agencies will undoubtedly argue that relying on Justice Kennedy’s concurrence is proper in a fractured opinion such as this, that opinion does not grant the Federal Agencies permission to exceed their authority under the Clean Water Act and the Constitution,” the Texas brief says.
These states argue that it “would have been more prudent to rely on the Rapanos plurality’s holding” because that standard “is more expressly consistent with the goals of the Clean Water Act, Congress’s commerce power, and the underlying precedent in Riverside Bayview and SWANCC.”
The states led by Texas say it is noteworthy that Kennedy's concurring opinon expressed concern that both the majority- and minority-plurality opinions would expand CWA jurisdiction beyond permissible limits, “thereby reinforcing Plaintiffs’ position that the Federal Agencies are not properly relying on Justice Kennedy’s 'significant nexus' standard.”
The states led by Georgia also say the final rule is not a “logical outgrowth” of the proposed rule and violates the APA because the proposed rule did not give interested parties sufficient notice with respect to the definition of adjacent waters and inclusion of waters on a case-by-case basis.
Their complaint also charges the rule harms states by imposing “numerous significant and immediate costs” upon them. Because the rule increases the number of waters subject to the CWA, states must immediately take on a number of tasks. These include: determining which waters were added to the federal agencies' jurisdiction and deciding if state-developed water quality standards apply; issuing a cleanup plan known as a total maximum daily load if the standards are not met; conducting “more water quality assessments at significant expense”; and processing additional National Pollutant Discharge Elimination System permit applications, Georgia's brief says.
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Mining Industry Says EPA CWA Rule Could Exacerbate Permitting Delays
Jun 30, 2015 | InsideEPA
By Bridget DiCosmo
Mining industry officials say EPA's final Clean Water Act (CWA) jurisdiction rule could increase permit burdens and exacerbate delays in the permitting process highlighted in a new study sponsored by the sector, while they push for Congress to approve legislation that aims to accelerate mines' ability to obtain permits.
The June 25 study, “Permitting, Economic Value, and Mining in the United States,” crafted by SNL Metal and sponsored by the National Mining Association (NMA), seeks to quantify the costs associated with permitting delays and lost investments. It found that “on average, a typical mining project loses more than one-third of its value as a result of unexpected delays in receiving the numerous permits needed to begin production.”
The study assessed CWA discharge permits, Clean Air Act permitting, and underground injection control permits, which are governed by EPA; National Environmental Policy Act (NEPA) analyses performed by other federal agencies; Endangered Species Act consultations; and CWA section 404 dredge-and-fill permits issued by the Army Corps of Engineers.
The study refers to a 1999 National Academy of Sciences report on hardrock mining on federal lands which it says found that “it is often the lack of coordination by all relevant agencies that results in excessive delays.”
Three case studies are offered in the report, the Rosemont Copper Mine in Arizona, which is still awaiting some permits five years after its planned 2010 start date, the Kensington Gold Mine in Alaska, plagued for nearly 20 years by permitting delays, and the Twin Metals Mine in Minnesota, which is still in early stages.
The three examples show that “permitting delays have caused, or have the potential to cause, substantial erosion of the value of these projects,” according to the report.
NMA CEO and President Hal Quinn said in a June 26 interview with Inside EPA that the group expects that the joint EPA-Corps final rule issued in May to clarify the scope of CWA jurisdiction is likely to expand the area for which mining projects will need to seek section 402 and 404 permits, adding to the study's projected seven to 10 years it takes to permit a mining project.
The final waters rule means that permitting will be “expanded to areas not being regulated” and the broad scope of the rule “isn't going to make the process any more effective,” Quinn said.
EPA and the Corps issued the rule May 27 in an attempt to clarify when smaller waters are considered jurisdictional following two Supreme Court decisions that confused the issue. But sources say the fact the rule is likely to eventually end up before the high court again following expected legal challenges -- including a suit announced by West Virginia and eight other states June 30 -- could result in the agencies having to issue another CWA rule.
Quinn also said that while many of the project delays stem from the number of federal agencies involved in the NEPA and other projects and often duplicative reviews required from the various permits, “late engagement by EPA” in the NEPA process can also contribute to delays. The agency often raises issues late in the process that have not previously been raised by other agencies, forcing additional analysis, Quinn said.
NMA will use the study to bolster support for a Senate bill, S. 883, introduced in March by Sen. Lisa Murkowski (R-AK), which would outline a series of actions and requirements for the Department of the Interior and Department of Agriculture aimed at reducing delays in the federal permitting process for new mines. For example, the bill would require the agencies to establish and adhere to timelines for permits and other licensing decisions, set performance goals for permitting, and engage in early collaboration with other federal agencies and stakeholders.
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Illinois, Industry Crude-by-Rail Cases Consolidated
Jul 1, 2015 | BNA Daily Environment Report
A federal appeals court has consolidated two Illinois communities' challenges against the Transportation Department's crude-by-rail rule with two industry lawsuits (API v. United States , D.C. Cir., No. 15-01131, 6/29/15). The U.S. Court of Appeals for the District of Columbia Circuit ruled June 29 that the lawsuit filed by the village of Barrington and the city of Aurora should be consolidated with those of the American Petroleum Institute and the American Short Line and Regional Railroad Association. The two industry lawsuits were initially filed separately, too, and more environmental challenges are likely to be filed in the D.C. Circuit soon (see related story)(125 DEN A-17, 6/30/15). The challenges center on the same Pipeline and Hazardous Materials Safety Administration rule that makes tank car standards and operational controls, such as speed limits, more stringent for trains carrying larger loads of Class 3 flammable liquids, including crude oil. The June 29 order is available at http://www.bloomberglaw.com/public/document/American_Petroleum_Institute_v_USA_et_al_Docket_No_1501131_DC_Cir.
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