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Industry and Association News

(ACC Mentioned) US Posts Increase in Monthly Resins Production
Jul 8, 2015 | Hydrocarbon Processing

US production of major plastic resins totaled 6.8 billion pounds during May 2015, an increase of 4.7% compared to the same month in 2014, according to American Chemistry Council (ACC) statistics.
(ACC Mentioned) P&G Joins Recycling Partnership
Jul 8, 2015 | Plastics News
By Jim Johnson

Another big-time name is putting its support behind the Recycling Partnership, a non-profit group aimed at boosting curbside recycling.

Chemical Management News

(ACC Mentioned) Menards Joins other Retailers in Dropping Products with Toxic Chemical
Jul 8, 2015 | Milwaukee Journal Sentinel
By Lee Bergquist

Menards said Wednesday it would stop selling vinyl flooring containing a toxic chemical — an apparent response to a public-relations campaign to pressure the Eau Claire-based company to join other retailers and end its use of the product.
(ACC Mentioned) Oregon Passes Toxics-Free Kid Products Bill
Jul 8, 2015 | BNA Daily Environment Report
By Paul Shukovsky

Oregon lawmakers have passed legislation (S.B. 478 ) to require manufacturers selling children's products to notify the state of the presence of any “high-priority chemicals of concern for children's health” and to remove or substitute chemicals within six years unless granted an exemption.
How the Senate and House TSCA Reform Bills Stack up against the Administration’s Principles for TSCA Reform
Jul 8, 2015 | Environmental Defense Fund
By Richard Denison

In September 2009, the Obama Administration issued its Essential Principles for Reform of Chemicals Management Legislation “to help inform efforts underway in Congress to reauthorize and significantly strengthen the effectiveness of TSCA.” These principles have guided EPA’s testimony and other statements relating to the Senate and House legislative proposals to reform the Toxic Substances Control Act.
Boxer: House Bill is Best Option for Chemical Reform
Jul 8, 2015 | The Hill - E2 Wire
By Lydia Wheeler

With a few additional changes, Sen. Barbara Boxer (D-Calif.) said legislation that passed the House last month is the best approach to reforming the nation’s toxic chemical laws.
Groups Ask Senate Leaders to Take up 'Clearer' House TSCA Bill
Jul 9, 2015 | E&E Daily
By Sam Pearson

A group of environmental and public health organizations that oppose a bipartisan Senate bill to update how the federal government manages toxic chemicals is pushing Senate leaders to consider scrapping the proposal and taking up a more limited House bill instead.
Senators Negotiating Time Limits for TSCA-Reform Bill Debate
Jul 8, 2015 | BNA Daily Environment Report
By Anthony Adragna and Pat Rizzuto

Senators are pushing for floor time and negotiating voluntary time limits to debate legislation to update the Toxic Substances Control Act, which regulates chemicals in consumer and industrial use.
Boxer, Environmentalists Urge Senate To Take Up House TSCA Reform Bill
Jul 8, 2015 | Inside EPA
By Bridget DiCosmo

Sen. Barbara Boxer (D-CA) and a coalition of environmental and public health groups are urging senators to take up the House-approved Toxic Substances Control Act (TSCA) reform bill, saying an alternative pending Senate TSCA bill contains too many problematic provisions including sweeping preemption of state chemicals programs.
Consumers Push Top Retailers to Safer Chemicals
Jul 8, 2015 | Safer Chemicals Healthy Families
By Tony Iallonardo

When it comes to moving our economy away from unsafe chemicals, perhaps no one has more power than major retailers to push suppliers and manufacturers, and ultimately the chemical industry, toward more responsible practices.
Group Urges CPSC to Get Asbestos Out of Crayons, Toys
| E&E News PM
By Sam Pearson

An advocacy group's tests of crayons and toy crime-scene dusting kits are prompting calls for the Consumer Product Safety Commission to halt the sales of such products.
Asbestos Found in Kids' Crayons, Lab Kits
Jul 8, 2015 | BNA Daily Environment Report
By Martina Barash

Federal consumer product regulators say they will look into an environmental and health group's findings that several samples of crayons and toy fingerprint kits contained asbestos fibers when tested.

Chemical Security News

Insurers' Report on Grid Cyberattack Faces Skepticism
Jul 8, 2015 | Political Pro - Whiteboard
By David Perera

A Lloyd’s of London report estimating the impact a cyberattack on the U.S. power grid is generating some skepticism from cyber experts who see self-interest at play.
DOT Proposes Long-Stalled Pipeline Safety Rules Expanding Use of Automatic Valves:
Jul 8, 2015 | Politico Pro -Whiteboard
By Elana Schor

The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration today proposed long-stalled regulations expanding the use of automatic shut-off valves on natural gas lines.
API Finalizes Pipeline Safety Management Document
Jul 9, 2015 | BNA Daily Environment
By Rachel Leven

The American Petroleum Institute finalized its recommended practice document July 8 on safety management systems for oil and gas pipeline operators, an area that the Transportation Department hasn't ruled out regulating.
PHMSA Proposes More Excess Flow Valve Requirements
Jul 9, 2015 | BNA Daily Environment Report
By Rachel Leven

The nation's pipeline safety regulator released a proposed rule July 8 that would increase the number of gas service lines required to install certain valves to stop gas flow if a pipe is broken or damaged.
Canadian Association Updates Pipeline Standards
Jul 9, 2015 | BNA Daily Environment Report

The Canadian Standards Association has published an updated version of its standards for oil and gas pipelines that is intended to improve pipeline safety.
Union Sues OPM over Data Breach
Jul 8, 2015 | E&E News PM
By Kevin Bogardus

The National Treasury Employees Union has filed a lawsuit against the Office of Personnel Management over the massive breach of federal employees' personal information.
Watchdog Slams 'Historical Negligence' at OPM after Data Breach
Jul 9, 2015 | E&E Daily
By Kevin Bogardus

The Office of Personnel Management's internal watchdog pulled no punches at a congressional hearing yesterday when he assessed the agency's cybersecurity defenses after a massive data breach.
Former CSB Chair Could Face Criminal Probe
Jul 9, 2015 | BNA Daily Environment Report
By Robert Iafolla

The bipartisan leadership of a congressional oversight panel asked the Justice Department on July 8 to launch a criminal investigation into whether former Chemical Safety and Hazard Investigation Board Chairman Rafael Moure-Eraso lied during the committee's probe of the agency.

Energy and Environment News

(ACC Mentioned) ACC Supports EPA Funding Measure Prevent to Lower Ozone Standards
Jul 8, 2015 | EP Newswire
By Caitlin Nordahl

The American Chemistry Council (ACC) issued a statement July 8 supporting measures in the fiscal 2016 EPA-interior appropriations bill that would prevent the Environmental Protection Agency (EPA) from lowering ozone national ambient air quality standards (NAAQS) until 85 percent of counties reach the current levels.
Inhofe: U.S. 2025 Emissions Pledges ‘Don't Add Up'
Jul 9, 2015 | BNA Daily Environment Report
By Dean Scott

The U.S. pledge to cut carbon pollution up to 28 percent over the next decade as part of a global climate change agreement is “not only unrealistic but also does not add up,” the Republican chairman of the Senate Environment and Public Works Committee said at a July 8 hearing.
House Votes to Halt EPA's Crackdown on Ozone Pollution
Jul 8, 2015 | E&E News PM
By Amanda Peterka

The House voted today to torpedo the Obama administration's efforts to tighten the Clean Air Act ozone standard in a series of votes on the Republicans' fiscal 2016 spending plan for the Interior Department and U.S. EPA.
House Rejects Lifting Restrictions on Ozone Regulations
Jul 8, 2015 | The Hill - Floor Action
By Cristina Marcos

The House rejected a proposal on Wednesday to eliminate a provision in a GOP spending bill that would restrict the Obama administration’s ability to enforce air quality standards for ozone.
EPA: Mercury Decision Doesn't Affect Chromium Rule
Jul 9, 2015 | BNA Daily Environment Report
By Patrick Ambrosio

A recent decision by the U.S. Supreme Court on the Environmental Protection Agency's mercury and air toxics standards for power plants is not relevant to litigation over revised pollution standards for chromium electroplating facilities, the EPA told a federal appeals court (Nat'l Ass'n for Surface Finishing v. EPA, D.C. Cir., No. 12-1459, letter filed, 7/7/15).
In Broad ESPS Legal Defense, McCarthy Downplays 'Narrow' Mercury Ruling
Jul 8, 2015 | Inside EPA
By Lee Logan

EPA Administrator Gina McCarthy is rejecting critics' claims that the Supreme Court's recent ruling remanding the agency's mercury rule for power plants will bolster future legal challenges to its forthcoming greenhouse gas (GHG) rule for the power sector, arguing the two rules are authorized by different sections of the Clean Air Act.
High Court Taking Hard Look at EPA, Panelists Say
Jul 9, 2015 | BNA Daily Environment Report
By Rebecca Wilhelm

Several cases decided during the recent U.S. Supreme Court term signal that the court is committed to taking a hard look at agency action, especially in lawsuits involving ambiguous statutes with significant economic and political consequences, legal observers said July 8 during a panel discussion.
Manufacturers Target Ozone, Fracking Amendments
Jul 8, 2015 | Politico Pro - Whiteboard
By Darren Goode

The National Association of Manufacturers is urging House lawmakers to maintain language in the Interior-EPA appropriations bill blocking Obama administration regulations on ozone and hydraulic fracturing.
House Agriculture Chairman: No 'Downside' to Crude Oil Exports
Jul 8, 2015 | The Hill - Briefing Room
By Lauren Aguirre

House Agriculture Committee Chairman Michael Conaway (R-Texas) is pushing to allow U.S. crude oil exports, saying he finds no "downside" to lifting the decades old ban.
Unions Back Oil Export Bill, Break with AFL-CIO
Jul 8, 2015 | The Hill - E2 Wire
By Timothy Cama

Two labor unions came out Wednesday in support of a House bill to end the ban on oil exports, breaking with the country’s largest union federation.
Pro-Keystone Unions Back Barton’s Crude Exports Bill
Jul 8, 2015 | Politico Pro - Whiteboard
By Elana Schor

Two of the top unions endorsing the Keystone XL pipeline came out in favor today of Rep. Joe Barton’s legislation that would end the decades-old crude export ban.
Farmers Hurt by Oil Export Ban, Conaway Says
Jul 9, 2015 | BNA Daily Environment Report
By Ari Natter

The 40-year-old ban on the export of crude oil is hurting farmers too, the chairman of the House Agriculture Committee said July 8, during a hearing in which he tied the trade restriction to suffering rural communities.
House Oversight Panel Subpoenas Keystone XL Documents
Jul 9, 2015 | BNA Daily Environment Report
By Ari Natter

The House Oversight and Government Reform Committee issued a subpoena to the State Department seeking information related to TransCanada Corp.’s Keystone XL pipeline, the committee announced July 8.
Oversight Panel Subpoenas State Dept. for Pipeline Documents
Jul 9, 2015 | E&E Daily
By Manuel Quiñones

The House Oversight and Government Reform Committee subpoenaed the State Department yesterday to turn over documents related to its review of the Keystone XL oil pipeline.
Oversight Republicans Subpoena Kerry for Keystone Documents
Jul 8, 2015 | The Hill - E2 Wire
By Devin Henry

House Republicans have subpoenaed Secretary of State John Kerry for documents related to the Obama administration’s review of the Keystone XL pipeline.
Can Clinton Lead the Keystone Army?
Jul 8, 2015 | PoliticoPro
By Elana Schor

An army of liberal green activists has yet to coalesce around a Democratic presidential candidate, and Bernie Sanders and Martin O’Malley are fighting to win them over.
Interior Accepts Controversial Colo. Ruling on Oversight
Jul 9, 2015 | E&E News PM
By Manuel Quiñones

The Obama administration has decided not to appeal a Colorado federal judge's ruling that's forcing the Interior Department to boost scrutiny of coal mines on federal land, including potential climate impacts.
Judges Appear Skeptical Of Suit Over Texas 'Flexible' Air Permits Program
Jul 8, 2015 | Inside EPA
By Stuart Parker

Appellate judges at July 7 oral arguments appeared skeptical of environmentalists' suit claiming that Texas' EPA-approved “flexible” Clean Air Act permit program could allow unlawful circumvention of federal new source review (NSR) air permit requirements, saying advocates failed to prove injury under the program to justify the challenge.
California Governor Presses Canada to Cut Emissions
Jul 9, 2015 | BNA Daily Environment Report
By Allison McNeely and Josh Wingrove

The trio of leaders behind North America's largest cap-and-trade market want Canadian Prime Minister Stephen Harper and other global leaders to do more to cut emissions and combat climate change.
California Criteria Require Monitoring Near Well Sites
Jul 9, 2015 | BNA Daily Environment Report
By Stephen Siciliano

California's State Water Resources Control Board has adopted “model criteria” for monitoring groundwater in areas where hydraulic fracturing is being used to tap oil and gas reserves deep underground.
Obama, Democrats Discussed Climate Change at White House Gathering
Jul 8, 2015 | E&E News PM
By Jean Chemnick

President Obama discussed cooperating on climate action with Democratic senators when they visited the White House last night to bury the hatchet after June's divisive debate over fast-track trade legislation.
GOP Senators Demand Details of Obama's Emissions Pledge
Jul 9, 2015 | E&E Daily
By Jean Chemnick

Senate Environment and Public Works Chairman James Inhofe (R-Okla.) led colleagues in demanding yesterday that the Obama administration make available its assumptions for how the United States would meet President Obama's post-2020 climate change goals.
Senators Question Obama Ability to Implement Climate Plans
Jul 8, 2015 | The Hill - E2 Wire
By Devin Henry

Senators sparred Wednesday over the effectiveness and legality of President Obama’s plans to reduce greenhouse gas emissions as part of an international climate agreement later this year.
House Republicans Question Homeland Security's Emphasis on Climate Change Risks
Jul 9, 2015 | BNA Daily Environment Report
By Anthony Adragna

Assertions that climate change can exacerbate security risks to the U.S. and that it should be factored into strategic planning are “outrageous” and a waste of taxpayer dollars, Republicans said at a House Homeland Security subcommittee hearing July 8.
Republicans Assail DHS Officials for Focusing on Climate Change
Jul 8, 2015 | The Hill - E2 Wire
By Timothy Cama

House Republicans lambasted the Obama administration Wednesday for making climate change a high priority at the Department of Homeland Security (DHS).
Republicans Ridicule DHS Focus on Warming as a 'Threat Multiplier'
Jul 9, 2015 | E&E Daily
By Ariel Wittenberg

Republicans were not buying the connection between climate change and national security put forth by Department of Homeland Security officials yesterday at a heated hearing of the House Homeland Security Subcommittee on Oversight and Management Efficiency.
Sierra Club Launches Ad Campaign against N.M. Plant
Jul 8, 2015 | E&E News PM
By Manuel Quiñones

The Sierra Club is launching what it calls an aggressive radio ad campaign against PNM Resources Inc.'s San Juan coal plant in northwestern New Mexico, the group said today.

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Industry and Association News

(ACC Mentioned) US Posts Increase in Monthly Resins Production

Jul 8, 2015 | Hydrocarbon Processing

US production of major plastic resins totaled 6.8 billion pounds during May 2015, an increase of 4.7% compared to the same month in 2014, according to American Chemistry Council (ACC) statistics.
Keywords:
US production of major plastic resins totaled 6.8 billion pounds during May 2015, an increase of 4.7% compared to the same month in 2014, according to statistics released today by the American Chemistry Council (ACC).
Year-to-date production was 32.2 billion pounds, a 3.4% increase as compared to the same period in 2014.
Sales and captive (internal) use of major plastic resins totaled 6.5 billion pounds during May 2015, an increase of 0.4% from the same month one year earlier. Year-to-date sales and captive use was 32.2 billion pounds, a 4.3% increase as compared to the same period in 2014.

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(ACC Mentioned) P&G Joins Recycling Partnership

Jul 8, 2015 | Plastics News

By Jim Johnson

Another big-time name is putting its support behind the Recycling Partnership, a non-profit group aimed at boosting curbside recycling.
Procter & Gamble Co. of Cincinnati becomes the latest join the partnership, which relies on funding from private sources to help support improvements in public curbside recycling efforts.
“At P&G, we are working toward a vision that one day no waste will go to landfill. Helping expand and enable recycling efforts is key to helping us reaching that vision,” said Steve Sikra, P&G’s global leader for packaging material science and technology, in a statement. “The Recycling Partnership’s work is helping build solutions and create value that we hope will increase at-home recycling.”
This increase, Sikra said in his statement, will help provide “more recycled materials for companies like P&G to use in their packaging.”
Other members of the partnership include Amcor Ltd., Coca-Cola Co., Sonoco Products Co., American Chemistry Council, Association of Postconsumer Plastic Recyclers and the Society of the Plastics Industry Inc.

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Chemical Management News

(ACC Mentioned) Menards Joins other Retailers in Dropping Products with Toxic Chemical

Jul 8, 2015 | Milwaukee Journal Sentinel

By Lee Bergquist

Menards said Wednesday it would stop selling vinyl flooring containing a toxic chemical — an apparent response to a public-relations campaign to pressure the Eau Claire-based company to join other retailers and end its use of the product.
Menards said it planned to stop selling any products containing phthalates (pronounced "tha-layts") at its home improvement stores by the end of year.
The toxic chemical compound has been banned by federal regulators from many children's products, but not flooring. The chemical has been linked to an array of reproductive and development problems in humans.
The Home Depot and Lowes — two of Menards' chief competitors — agreed this spring to phase out products containing the chemicals by the end of the year.
Phthalates are a family of chemical compounds that are used to make polyvinyl chloride or vinyl more flexible.
The concern by health and environmental groups is that phthalates can migrate from flooring and potentially harm children who are more vulnerable to exposure and are more apt to play on the floor.
The company had not responded to letters and phone calls from environmental and health groups dating back to Feb. 25 asking Menards to phase out phthalates in flooring, according to Eric Uram of Madison, a leader of efforts in Wisconsin to end its use in floor products.
On Thursday, a coalition of public interest groups in the state was planning to publicly call on Menards to end the use of phthalates.
The Wisconsin initiative is part of a larger campaign led by Safer Chemicals Healthy Families, a Washington, D.C.-based organization that has asked Menards to pull products with the chemicals. The organization is pressuring major retail companies to identify and find alternatives to more than 100 chemicals in consumer products that are deemed unsafe.
Also, a petition on Change.org is asking John Menard Jr., founder of the company, to stop using the compounds. As of Wednesday, the online petition had more than 3,400 signatures.
Menards told the Milwaukee Journal Sentinel it would stop using floor products with the chemicals after the newspaper called about Thursday's plans by organizers in Wisconsin.
In the statement, spokesman Jeff Abbott said all of the company's vinyl flooring products meet government standards.
"We are still aware of the phthalate concern and have been working diligently with our vendors to eliminate any flooring products that contain phthalates," Abbott said in an email.
Abbott said less than 7.5% of its vinyl flooring products contained phthalates and the company is no longer purchasing such products.
The Consumer Product Safety Commission has no limit on phthalates in flooring. The agency has banned six types of phthalates in child care products.
"The take-away of this is that Menards has heard from the public, understands the concern and is responding to this," Uram said. "We applaud that."
According to the American Chemistry Council, an industry group, phthalates are used in hundreds of products in homes, vehicles and businesses.
In a statement before the Menards' announcement, the council said the chemicals "have been thoroughly studied and reviewed by a number of government scientific agencies and regulatory bodies worldwide and these agencies have concluded that phthalates used in commercial products pose no risk to human health at typical exposure levels."

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(ACC Mentioned) Oregon Passes Toxics-Free Kid Products Bill

Jul 8, 2015 | BNA Daily Environment Report

By Paul Shukovsky

Oregon lawmakers have passed legislation (S.B. 478 ) to require manufacturers selling children's products to notify the state of the presence of any “high-priority chemicals of concern for children's health” and to remove or substitute chemicals within six years unless granted an exemption.The bill is modeled on Washington state's Children's Safe Product Act of 2008 and adopts its list of 66 chemicals, which includes formaldehyde, benzene and several phthalate and paraben substances.The measure's requirement to remove, substitute or seek a waiver for a chemical of concern is invoked if it is present in a children's product that is “mouthable,” a cosmetic, or made for or marketed for use by children under 3 years of age.The Oregon Health Authority must grant a waiver to manufacturers upon a demonstration that removal of a listed chemical “is not financially or technically feasible” or “is not reasonably anticipated to result in exposure.” Manufacturers with annual gross worldwide sales of less than $5 million are exempt.Strong Opposition MountedS.B. 478 passed the House on July 3 by a vote of 43 to 17 and the Senate on July 1 on a vote of 18 to 11 with all Republicans present voting against it.A prime sponsor, Sen. Chris Edwards (D), told Bloomberg BNA that he expects the governor will sign the bill.“It was difficult bill to get passed because you had the American Chemistry Council lead the charge against it,” Edwards said. “The sheer mass of lobbyists that were against the bill just made it difficult.”Lobbyists from the Personal Care Products Council, the Toy Industry Association, the Association of Home Appliance Manufacturers, Associated Oregon Industries and the American Forest and Paper Association also opposed the bill.“Given the political power of the groups against it, I had to prove to my fellow legislators that I had been as reasonable as possible and really worked the bill over,” said Edwards, who added that he needed to show fellow lawmakers that the bill made “every reasonable accommodation possible.”Failing to Close ‘Loophole.’Asked what accommodations were made, Edwards said, “One major concession that I had to make that I frankly didn't want to make—but it was more important to get the bill passed—was to align the definitions in the bill with the state of Washington.”The Oregon bill originally proposed a more stringent definition of “contaminant,” which Edwards said under the Washington definition gives manufacturers a “loophole” because contaminants must be reported only if present at levels of 100 parts per million or more, while all intentionally added chemicals must be reported if they can be accurately detected.A compromise resulted in Oregon adopting the exact language of Washington's regulatory definition saying that a contaminant is a chemical that has no intended function in the final product, according to Edwards and Carol Kraege, toxics policy coordinator for the Washington Department of Ecology.If Edwards had not had to compromise, Kraege said, “more things would be considered intentional and fewer things would be considered contaminants and thus able to escape reporting if at a low enough level in the product.”81 Percent in Favor of BillEdwards credited as a backbone in the effort to draft and pass the bill the Oregon Environmental Council. Its legislative director, Angela Crowley-Koch, told Bloomberg BNA in a July 7 telephone interview that “public support for the bill is huge.” A poll commissioned by the council found 81 percent in favor of it, she said.“People can't believe that it's taken four years here in Oregon to pass the Toxics Free Kids Act,” Crowley-Koch said. Asked why it has taken four years, she said: “The influence of the chemical industry. The American Chemistry Council has been fighting legislation in a number of states to prevent any type of legislation to reduce toxic exposures.”Bloomberg BNA spoke by telephone July 7 with Matt Markee, the chemistry council's contract lobbyist in Oregon, to inquire what tactics he used in an attempt to kill the bill. Markee declined to comment, referring a reporter directly to the council.Crowley-Koch said the forces in opposition to the bill recruited help from the Oregon pulp and paper industry, which she said “really didn't have a dog in the fight. The pulp and paper companies themselves don't manufacture children's products. But they are pretty powerful in Oregon. In some districts, it might be the biggest job provider in the district.”The combined forces in opposition were successful in killing the bill in 2013 and 2014.‘An Unwieldy Patchwork.’In response to a BNA request for an interview, the American Chemistry Council's regional communications director, Andrew Fasoli, sent an e-mail statement saying: “SB 478 was opposed by ACC and a large number of other diverse associations representing businesses and employers in Oregon. The bill only takes into account the mere presence of a chemical in a product in determining if the product is safe or not. Actual human exposure to an individual chemical used in a product is not taken into account and it also ignores how much of the chemical is present.”The statement also objects to what it called “vague language” in regard to the alternative assessment process by which a manufacturer can seek a waiver from having to remove a listed chemical if it is not financially or technically feasible or not reasonably anticipated to result in exposure. And the council criticized the power vested in the Oregon Health Authority that makes the agency “the sole arbiter in determining what products can be sold in Oregon.”“By passing this legislation, Oregon only adds to an unwieldy patchwork of state chemical regulations that businesses must navigate in order to bring their products to the market,” the council statement says. “ACC believes that chemical regulation should be done on a federal level. There has been a great amount of progress in updating the Toxic Substances Control Act of 1976 in Congress.”Kraege, the state's toxics policy coordinator, said, “What is being considered in Congress doesn't really meet our needs. The ultimate solution needs to be a partnership between the states and the federal government” as opposed to federal preemption of state laws.

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How the Senate and House TSCA Reform Bills Stack up against the Administration’s Principles for TSCA Reform

Jul 8, 2015 | Environmental Defense Fund

By Richard Denison

In September 2009, the Obama Administration issued its Essential Principles for Reform of Chemicals Management Legislation “to help inform efforts underway in Congress to reauthorize and significantly strengthen the effectiveness of TSCA.” These principles have guided EPA’s testimony and other statements relating to the Senate and House legislative proposals to reform the Toxic Substances Control Act.
Now that the TSCA Modernization Act of 2015 (H.R. 2576) has passed the House of Representatives, and the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) is expected to come to the Senate floor in the coming weeks, I'll use this post to take a look at how each bill stacks up against the Administration’s principles.
The Administration has itself weighed in on this question in a couple of instances, although it has not provided much detail. A White House statement issued in response to the House’s passage of H.R. 2576 stated:
We are pleased with the ongoing, bipartisan efforts in the House and the Senate to reform TSCA, which seek to address the goals spelled out in the Administration’s Principles. 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.
In recent testimony before a Senate committee, EPA Administrator Gina McCarthy responded as follows to a question as to whether S. 697, as amended by the Senate Environment and Public Works Committee in markup, meets the Administration’s principles (cited in Environment and Energy Daily [subscription required]):
McCarthy replied that Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, had "identified a couple of areas where the bill fell short of the administration's principles, but I also am pleased that the most recent amendments really addressed those issues, and I am encouraged that we're moving forward with a bipartisan bill."
Below is our take on the extent to which each bill aligns with the Administration principles (also attached as aPDF here). For a more detailed comparison of the two bills, see our side-by-sides here and here.
While there are six principles, two of them have several pertinent parts, so we have scored each bill against each of 10 reform elements.
Here’s the overall finding:
Overall score Senate bill: 8.5/10 House bill: 4.0/10

Analysis
How the Senate and House TSCA reform bills stack up against the Administration’s
Principles for TSCA Reform
Sources:Essential Principles for Reform of Chemicals Management LegislationS. 697: The Frank R. Lautenberg Chemical Safety for the 21st Century ActH.R. 2576: The TSCA Modernization Act of 2015
Overall score Senate bill: 8.5/10 House bill: 4.0/10
[Note: There are 6 principles, but Principle #2 has 4 parts, and Principle #5 has 2 parts, for a total of 10 individual scores.]
√ = Meets principle (1 point)
+/- = Partially meets principle (0.5 point)
X = Does not meet principle (no points)
Principle No. 1: Chemicals Should be Reviewed Against Safety Standards that are Based on Sound Science and Reflect Risk-based Criteria Protective of Human Health and the Environment.
EPA should have clear authority to establish safety standards that are based on scientific risk assessments. Sound science should be the basis for the assessment of chemical risks, while recognizing the need to assess and manage risk in the face of uncertainty.Senate bill √
Safety standard defined to prohibit EPA from considering costs in safety determinations.Other instances of “unreasonable risk” in TSCA are similarly qualified.House bill +/-
Prohibits EPA from considering costs in risk evaluations of existing chemicals.Does not apply that prohibition to EPA review of new chemicals or other instances of “unreasonable risk” in TSCA.
Principle No. 2: Manufacturers Should Provide EPA with the Necessary Information to Conclude That New and Existing Chemicals are Safe and Do Not Endanger Public Health or the Environment.
a. Manufacturers should be required to provide sufficient hazard, exposure, and use data for a chemical to support a determination by the Agency that the chemical meets the safety standard.Senate bill +/-
Explicitly calls for EPA to request or require information where available information is insufficient for EPA to make a safety determination for a new or existing chemical.EPA must request information before it can require its submission or development, potentially leading to delays.House bill +/-
Authority but no explicit provision addressing sufficiency of information.New chemicals could continue to enter commerce in the absence of sufficient information for EPA to find the chemical is likely to meet the safety standard.
b. Exposure and hazard assessments from manufacturers should be required to include a thorough review of the chemical’s risks to sensitive subpopulations.Senate bill √
Expressly requires consideration of risks to potentially exposed or susceptible populations and mandates their protection from such risks.House bill √
EPA cannot conclude a chemical will not present an unreasonable risk if one or more potentially exposed populations are subject to such a risk.
c. Where manufacturers do not submit sufficient information, EPA should have the necessary authority and tools, such as data call in, to quickly and efficiently require testing or obtain other information from manufacturers that is relevant to determining the safety of chemicals.Senate bill +/-
Provides authority for EPA to use orders to require testing (with justification) and eliminates TSCA’s requirement to first show risk or high exposure.Generally requires EPA to follow a tiered testing approach.House bill +/-
Provides order authority to require testing; no specific justification to use orders is required.The bill retains TSCA’s requirement for EPA to first show risk or high exposure before requiring testing unless the testing is “necessary to conduct a risk evaluation.”
d. EPA should also be provided the necessary authority to efficiently follow up on chemicals which have been previously assessed (e.g., requiring additional data or testing, or taking action to reduce risk) if there is a change which may affect safety, such as increased production volume, new uses or new information on potential hazards or exposures. EPA’s authority to require submission of use and exposure information should extend to downstream processors and users of chemicals.Senate bill √
EPA can revisit the priority of a chemical at any time based on new information or a request to do so.EPA may subject a new chemical to prioritization at any time based on new information.Mandate to collect needed information from chemical processors/users is provided. House bill X
Provides no explicit authority or mandate to revisit new or existing chemicals based on new information.Provides no mandate to collect needed information from chemical processors/users.
Principle No. 3: Risk Management Decisions Should Take into Account Sensitive Subpopulations, Cost, Availability of Substitutes and Other Relevant Considerations.
EPA should have clear authority to take risk management actions when chemicals do not meet the safety standard, with flexibility to take into account a range of considerations, including children’s health, economic costs, social benefits, and equity concerns.Senate bill √
Explicitly requires restrictions sufficient to ensure the chemical meets the safety standard, up to and including a ban.Cost and other non-risk factors are to be taken into account in deciding among risk management measures.House bill √
Explicitly requires restrictions “necessary so that the chemical substance no longer presents or will present an unreasonable risk,” including to a potentially exposed subpopulation.Cost and other non-risk factors are to be taken into account in deciding among risk management measures.
Principle No. 4: Manufacturers and EPA Should Assess and Act on Priority Chemicals, Both Existing and New, in a Timely Manner.
EPA should have authority to set priorities for conducting safety reviews on existing chemicals based on relevant risk and exposure considerations. Clear, enforceable and practicable deadlines applicable to the Agency and industry should be set for completion of chemical reviews, in particular those that might impact sensitive sub-populations.Senate bill +/-
EPA must make an affirmative safety finding before a new chemical can enter commerce.All existing chemicals are to be prioritized and those deemed high priority must undergo a safety assessment and determination.Deadlines apply to each step in the review and regulatory process.Low minimum numbers of chemicals to be assessed are specified.A limited pathway for industry-requested assessments is provided, with EPA having discretion as to whether to grant a specific request.House bill X
No mandate to review new chemicals or make an affirmative safety finding is provided.No prioritization process or other means to identify chemicals to undergo risk evaluations is established, though EPA can assess chemicals it has prioritized via its work plan.Deadlines apply to risk evaluations and required risk management rules.Low minimum numbers of chemicals to be assessed are specified, subject to availability of appropriations.A virtually unlimited pathway is provided for companies to request risk evaluations for chemicals they want assessed, which EPA must conduct.
Principle No. 5: Green Chemistry Should Be Encouraged and Provisions Assuring Transparency and Public Access to Information Should Be Strengthened.
a. The design of safer and more sustainable chemicals, processes, and products should be encouraged and supported through research, education, recognition, and other means. The goal of these efforts should be to increase the design, manufacture, and use of lower risk, more energy efficient and sustainable chemical products and processes.Senate bill √
A sustainable chemistry provision is included.House bill X
No sustainable chemistry provision is included.
b. TSCA reform should include stricter requirements for a manufacturer’s claim of Confidential Business Information (CBI). Manufacturers should be required to substantiate their claims of confidentiality. Data relevant to health and safety should not be claimed or otherwise treated as CBI. EPA should be able to negotiate with other governments (local, state, and foreign) on appropriate sharing of CBI with the necessary protections, when necessary to protect public health and safety.Senate bill √
Upfront justification of most new CBI claims is required and they are subject to a renewable 10-year time limit.EPA must review all past and new CBI claims for the identity of chemicals in commerce and a representative subset of all other claims.The identity of chemicals in health and safety studies cannot be masked as CBI.States must be given access to CBI.House bill +/-
Upfront justification of new CBI claims is required and they are subject to a renewable 10-year time limit.There is no requirement for EPA to review and require substantiation of past CBI claims for chemical identity for chemicals on the TSCA Inventory.The identity of chemicals in health and safety studies can be masked as CBI.States may be given access to CBI, subject to advance notification of claimants.

Principle No. 6: EPA Should Be Given a Sustained Source of Funding for Implementation.
Implementation of the law should be adequately and consistently funded, in order to meet the goal of assuring the safety of chemicals, and to maintain public confidence that EPA is meeting that goal. To that end, manufacturers of chemicals should support the costs of Agency implementation, including the review of information provided by manufacturers.Senate bill √
Fees must be collected for new and existing chemical reviews, which go into a dedicated “TSCA Implementation Fund.”The level of fees is to be set initially to cover approximately 25% of relevant EPA program costs up to $18 million/year, and can be adjusted over time.House bill X
EPA can charge fees only to cover costs for industry-requested assessments, which go into a dedicated “fee-for-service” fund.No fees can be charged to cover the costs of EPA-initiated assessments.No level of fees is specified.

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Boxer: House Bill is Best Option for Chemical Reform

Jul 8, 2015 | The Hill - E2 Wire

By Lydia Wheeler

With a few additional changes, Sen. Barbara Boxer (D-Calif.) said legislation that passed the House last month is the best approach to reforming the nation’s toxic chemical laws.
A coalition of public health and environmental groups led by Safer Chemicals, Healthy Families sent a letter to Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Harry Reid (D-N.V.) on Tuesday asking the Senate to take up the TSCA Modernization Act that passed the House by a 398-1 vote last month.
“I agree with the coalition that the House bill ‘is clearer and more concise and would be more appropriate to use as the vehicle for changes as the process moves forward,'” Boxer said in a statement quoting the group’s letter.
In the Senate there’s a bill backed by Sens. Tom Udall (D-N.M.) and David Vitter’s (R-La) that’s expected to make it to the floor for a vote this summer. Like the House bill, it aims to reform the Toxic Substances Control Act, known as TSCA.
Boxer, a staunch opponent of that legislation, introduced her own competing bill. But since she's been unable to garner much support, she's voicing support for the House legislation if changes are made.
In their letter, the coalition of health and environmental groups asked for changes that ensure clauses that grandfather in state laws and actions work the way the authors inteded them to, and ensure the Environmental Protection Agency can adequately address chemical threats with reasonable remedies.

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Groups Ask Senate Leaders to Take up 'Clearer' House TSCA Bill

Jul 9, 2015 | E&E Daily

By Sam Pearson

A group of environmental and public health organizations that oppose a bipartisan Senate bill to update how the federal government manages toxic chemicals is pushing Senate leaders to consider scrapping the proposal and taking up a more limited House bill instead.
In their letter to Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Harry Reid (D-Nev.) sent Tuesday and released yesterday, the groups argued that the House bill,H.R. 2576, could more easily be improved to win the endorsement of a broader coalition of health and safety organizations, compared to what they called a flawed Senate proposal, S. 697.
Spearheaded by Safer Chemicals, Healthy Families, the letter was signed by at least 60 groups, including the Sierra Club, the Natural Resources Defense Council, the United Steelworkers union and others. It said that while both bills "fall short of what is needed to ensure the public is meaningfully protected from the dangers of toxic chemicals," the House plan "is clearer and more concise and would be more appropriate to use as the vehicle for changes as the process moves forward."
However, if the Senate takes up its own version of the bill, lawmakers must be willing to remove problematic language, the groups said.
Sen. Barbara Boxer (D-Calif.), the ranking member of the Environment and Public Works Committee and a leading opponent of the Senate bill, said in a statement that the letter "confirms my view that taking up H.R. 2576, with a few additional changes, is the best approach for meaningful TSCA reform."
Sen. Ed Markey (D-Mass.), another opponent of the Senate bill, told E&E Daily he was hopeful "that everyone is open-minded" during the floor action ahead.
Still, there's so far no indication that McConnell is interested in setting aside legislation passed by the Environment and Public Works Committee that now has nearly half the chamber as co-sponsors.
McConnell spokesman Don Stewart said in an email that McConnell would like to advance the Senate proposal this month but has not announced a schedule for doing so.
Sen. Tom Udall (D-N.M.) told E&E Daily yesterday that the Senate bill is still on track to come to the floor before the August recess. However, it must compete with other bills in line, such as new cybersecurity legislation and a proposed 20-week abortion ban introduced by Sen. Lindsey Graham (R-S.C.).
If lawmakers don't take up a cybersecurity bill this month, "then that makes it better for TSCA," Udall said.
With an open amendment process, Udall said, it will be possible to address the concerns of opponents like Boxer.
"I think the Senate bill's the better bill," Udall said. "This is something the Senate's worked on for a long time. It's a much more comprehensive bill."
Udall echoed comments made this week in a blog post by the Environmental Defense Fund, a key supporter of S. 697. The group has advised Udall's office on TSCA legislation.
The Senate bill would go further than House legislation by changing how EPA reviews new chemicals, instead of just existing ones, and provide a permanent funding source for reviews, Udall said.
The Senate bill was also more closely aligned with the Obama administration's principles for TSCA reform, a policy document that outlined the kind of legislation the administration would be willing to accept, Udall said.
In their letter, opponents of Udall's bill said the House bill still needs improvements. Among the necessary changes are a tougher mandate for EPA to complete a minimum amount of chemical reviews per year, changes to how EPA handles industry-requested reviews and other tweaks, they said.
"If there is a conference, there are additional issues in the House bill that should be addressed," the letter said.

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Senators Negotiating Time Limits for TSCA-Reform Bill Debate

Jul 8, 2015 | BNA Daily Environment Report

By Anthony Adragna and Pat Rizzuto

Senators are pushing for floor time and negotiating voluntary time limits to debate legislation to update the Toxic Substances Control Act, which regulates chemicals in consumer and industrial use.“That's what I'm in the middle of right now—trying to get floor time. I haven't done it yet, but I'm planning to,” Sen. James Inhofe (R-Okla.) told Bloomberg BNA July 8.Inhofe referred to the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697).Sen. Tom Udall (D-N.M.) introduced S. 697, which is co-sponsored by 19 other Democrats and 24 Republicans.Staff for Senate Majority Leader Mitch McConnell (R-Ky.) have told Bloomberg BNA previously that McConnell wants Democrats to agree to limit the time they will spend debating the bill and the number of amendments they will add to it.Udall told Bloomberg BNA he would like to have an open amendment process that would complete debate and reach a final vote in a week or two.Sen. Thomas Carper (D-Del.) told Bloomberg BNA: “I think we've got a shot. Those of us who supported the bill coming out of committee I think would very much support doing that [reaching a time agreement].”States Urge Senate to VoteThe Environmental Council of the States (ECOS) and the National Conference of State Legislatures (NCSL) added their voices to those pushing the Senate to take up TSCA modernization.The state organizations sent a letter July 2 to McConnell, Senate Minority Leader Harry Reid (D-Nev.), House Speaker John Boehner (R-Ohio) and House Minority Leader Nancy Pelosi (D-Calif.).They congratulated the House on its passage of a TSCA modernization bill and encouraged the Senate to proceed on its legislation. The House approved the TSCA Modernization Act of 2015 (H.R. 2576) June 23 with a 398-1 vote (121 DEN A-1, 6/24/15).The House bill would allow states to regulate chemicals until the EPA makes a final determination as to whether a regulation is needed or not.S. 697 would limit the scope of or preclude state chemical regulations while the EPA assesses a chemical's safety, but before it reaches a conclusion as to the safety of the chemical.ECOS and NCSL support the House approach, wrote Alexandra Dapolito Dunn, executive director and general counsel for ECOS, and William Pound, executive director of NCSL.Inhofe, Boxer Urge Separate BillsWhen the Senate takes up TSCA reform, “we'll be considering the Senate bill,” Inhofe told Bloomberg BNA.He was referring to Sen. Barbara Boxer's (D-Calif.) preference for using H.R. 2576 as the starting point for legislation and then amending it on the Senate floor. Boxer, who opposes S. 697, has said this several times, most recently in a July 8 statement.A coalition of environmental, health, labor and consumer advocacy groups also support using the House bill as the starting point.“I want to see the House bill come to the floor because it's much easier, it's much more straightforward,” Boxer told Bloomberg BNA. “It needs about four or five amendments that we could vote on.”Boxer's office did not reply to requests for details on specific changes she would plan to make to either the House or Senate bill, if one or the other is taken up on the floor.During an April 28 committee markup of S. 697, Boxer said she would bring 27 amendments to the floor if the Senate takes up the bill. These would include measures to add additional protections for states rights and requirements to address chemicals stored near drinking water (82 DEN A-9, 4/29/15)On July 8, Boxer said she agrees with perspectives the coalition voiced in a July 7 letter encouraging Senate leaders to bring the House bill to the floor.The coalition's letter detailed key requirements of the House and Senate bills that the coalition opposes and ones it would support.Udall: Senate Has Better BillUdall said S. 697 should be the focus of the Senate's discussion.“While I respect my House colleagues' important work on chemical safety reform, it lacks key provisions in the Senate bill to protect families in New Mexico and across the country from dangerous chemicals, and the administration has concerns with its implementation,” Udall told Bloomberg BNA.“I think the Senate's is a better bill. This is something the Senate has worked on for a long time. It's a much more comprehensive bill,” he told reporters.Strengths of the Senate bill, Udall said, include:• the safety standard it requires chemicals to meet to protect public health and the environment;• the $18 million in fees it would secure from chemical manufacturers annually for the Environmental Protection Agency to implement the law;• the new chemicals provisions that would require the EPA to make an affirmative decision that a new chemical would be safe before allowing it to be manufactured; and• confidential business information provisions that would ensure doctors and other health-care providers and emergency responders have access to chemical information they would need to address emergencies.Addressing TSCA Failures“The Senate's comprehensive bill would address all of the major ways the current law fails,” Udall told Bloomberg BNA.Rep. John Shimkus (R-Ill.), who introduced H.R. 2576, recommended at a recent Bipartisan Policy Center forum that the Senate take up S. 697, Udall said.He referred to a June 25 forum where Shimkus and Udall said House and Senate staff already are identifying ways to integrate the different approaches each chamber has taken to update TSCA, which has not had its core provisions changed since 1976 when the average price of gasoline was 57 cents a gallon.The two chambers would then work to reconcile the differences with their bills, Udall told Bloomberg BNA. “That is the common sense path forward.”

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Boxer, Environmentalists Urge Senate To Take Up House TSCA Reform Bill

Jul 8, 2015 | Inside EPA

By Bridget DiCosmo

Sen. Barbara Boxer (D-CA) and a coalition of environmental and public health groups are urging senators to take up the House-approved Toxic Substances Control Act (TSCA) reform bill, saying an alternative pending Senate TSCA bill contains too many problematic provisions including sweeping preemption of state chemicals programs.
In a July 7 letter to Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Harry Reid (D-NV), the Safer Chemicals, Healthy Families Coalition of 57 advocacy groups acknowledges flaws in both the measure approved by the House June 23, H.R. 2576, and the bipartisan Senate bill, S. 697. “The House bill, however, is clearer and more concise and would be more appropriate to use as the vehicle for changes as the process moves forward,” the letter says.
The letter also suggests changes to the House bill that should be addressed if the Senate decides to take it up in lieu of an upcoming vote on S. 697, including revisions to ensure EPA can “impose reasonable remedies” to chemicals it determines are not safe, and the bill's provisions on preemption of state programs.
On preemption, the letter says clarifying changes are vital to ensure House language on “grandfathering,” or preserving existing state programs, works “in the way that the bill authors have described.”
However, the coalition says, “If the Senate does not take up the House bill, the primary failings of the Senate measure must be addressed” ahead of a floor vote on S. 697 that McConnell has suggested could occur by August. Language the groups oppose in the Senate bill includes “a provision that was added right before mark-up that makes it harder for EPA to protect the public from, or even know about, chemicals used in products. While the Senate language on some of these matters has improved, the House bill does not raise these issues at all.”
The House cleared its bill in a 398-1 floor vote late last month, while the Senate Environment & Public Works Committee (EPW) approved S. 697 in a 15-5 vote at an April 28 markup.
Senate Legislation
Sens. David Vitter (R-LA) and Tom Udall (D-NM), who introduced the upper chamber's bill, have said they want to allow some amendments during floor debate, and supporters of the measure are working to ensure they have sufficient votes to defeat amendments that could derail the bill. Such provisions could include riders to block unrelated EPA policies that the GOP opposes but Democrats support, or amendments that change the requirements of the legislation and cause current co-sponsors of the bill to withdraw their support in a final floor vote.
Boxer -- ranking member on EPW -- has vowed to push various amendments to address concerns about what she sees as major problems with S. 697, including its broad state preemption.
In a July 8 statement, the senator said, “I have reviewed the letter released by the Safer Chemicals, Healthy Families coalition of 450 public health organizations, and it confirms my view that taking up H.R. 2578, with a few additional changes, is the best approach for meaningful TSCA reform.”
She added, “I agree with the coalition that the House bill ‘is clearer and more concise and would be more appropriate to use as the vehicle for changes as the process moves forward.’”
In an earlier June 26 statement Boxer had suggested interest in taking up the House measure, and said she reached out to Rep. John Shimkus, (R-IL), chairman of the House energy panel's environment subcommittee.
But Shimkus suggested at a June 25 Bipartisan Policy Center event on TSCA reform in Washington, D.C., that he plans on letting the Senate vote on S. 697 and then launching a process to work out the differences between the bills.
Conference Committee
The coalition's new letter acknowledges the possibility of conference committee talks to craft a final compromise TSCA bill.
“If the Senate does pass its own bill, we recommend that the House bill be the base text for negotiations to reconcile the two,” the coalition says, adding that if there is a conference to resolve the differences between the two bills, “there are additional issues in the House bill that should be addressed.”
Meanwhile, the White House is praising Congress' bipartisan push to advance TSCA reform bills and hopes to see “strong” final legislation that President Obama can sign, but the administration is questioning a House plan for industry to request chemical safety reviews that could overtake EPA's review priorities.
Asked about the latest push for TSCA reform in Congress, a White House spokesman in a June 29 statement toInside EPA recently said, “We are pleased with the ongoing, bipartisan efforts in the House and the Senate to reform TSCA, which seek to address the goals spelled out in the Administration's Principles.”
However, the spokesman adds, “there are provisions in each bill that need modification to better align them with the Administration's principles; as just one example, language in the House bill that could prioritize industry-requested chemical reviews at the expense of EPA's priorities.”
The language in H.R. 2576 would provide for two types of mandatory risk reviews: those in which EPA determines that a chemical may present an unreasonable risk of injury to health or the environment because of potential hazard and a potential route of exposure under the intended conditions of use; or those requested by the agency administrator -- an approach that environmentalists have criticized.

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Consumers Push Top Retailers to Safer Chemicals

Jul 8, 2015 | Safer Chemicals Healthy Families

By Tony Iallonardo

When it comes to moving our economy away from unsafe chemicals, perhaps no one has more power than major retailers to push suppliers and manufacturers, and ultimately the chemical industry, toward more responsible practices.
At Safer Chemicals, Healthy Families, our coalition of 450 business, labour, environment and public health groups had spent years working to update our outdated and broken federal rules. We were frustrated by a chemical lobby that was intent on blocking real reform. We felt a shared moral urgency to reduce suffering, caused by chronic illnesses and other conditions that are linked to chemical exposure.
That is why we launched our “Mind the Store” campaign and called on the nation’s top ten retailers to develop comprehensive chemicals policies to phase out the worst of the worst chemicals, identifying a list of them as the Hazardous 100+. Since we launched the campaign, our supporters wrote to and petitioned top retailers, held dozens of events at stores, tested retailers’ products for dangerous chemicals and invited them to work with us.
Retailers listen to their customers, and are vulnerable to public outcry, but, of course, they can’t ignore the bottom line. Late last year, a study from the UN confirmed what we were witnessing. It found that companies that do not actively manage their use of chemicals face a tremendous downside risk, including millions in fines, reputational damage, recall costs and loss in customer loyalty.
The report has bolstered the case for the nation’s biggest retailers to work with their suppliers to adopt comprehensive programmes to identify, eliminate, and safely substitute dangerous chemicals.
Who are the leaders? The market leaders see this, and are leading the industry. Walmart and Target, which essentially started competing with one another in recent years in a race to safer chemicals, have both adopted comprehensive approaches to chemicals management. As they moved ahead, we kept the pressure on other top retailers, particularly Walgreens, the nation’s largest pharmacy chain. After generating over 135,000 emails from our supporters around the nation, just recently the chain let us know it had heard us, and was developing its own Chemical Sustainability Program. We are enthused, and thank them for listening. We are hopeful they will develop a strong chemicals policy that will promote greater disclosure, while avoiding hazardous chemicals in the products they sell.
Lumber Liquidators in chemical crisis. No cautionary tale in supply chain management this year stands out more than Lumber Liquidators, whose stock price has plunged by more than 60% and is now subject to a Department of Justice criminal investigation, after the CBS programme “60 Minutes” aired a report in March. The report said the flooring giant was selling laminate, sourced from China, that exceeded the California Air Resources Board (CARB) safety standard for formaldehyde, even as the flooring was labelled as compliant with the CARB rule.
And even as we urge comprehensive approaches, there has also been some great recent victories for consumers in wrestling with specific chemicals on our hazardous 100+ list.
Progress on toxic flame retardants. Late last year, we began engaging with and surveying major furniture retailers about whether they were ready to commit to phasing out toxic flame retardant chemicals that have been in nearly every piece of upholstered furniture sold for years. One stepped forward – Ashley, the leading retailer and manufacturer in the nation. While the company was planning a phase-out, it would not commit to a public timeframe. In response, we channelled the energy of thousands of concerned families from coast-to-coast, and just a few weeks later Ashley made it official and committed to a public timeframe for eliminating flame retardants in furniture.
Ashley’s leadership put pressure on other retailers to sell safer products, and within days after that, a social media campaign directed at other furniture retailers resulted in Ethan-Allen announcing on Twitter that it was matching the Ashley policy.
Progress on toxic phthalates. Similarly, our partners at the Ecology Center began testing vinyl flooring sold at national home improvement retailers for unsafe phthalates (months before the Lumber Liquidators story broke). Again, one retailer stepped forward ready to lead. The world’s largest home improvement retailer Home Depot expressed an interest in working with us. By early spring, the company was ready to announce it was phasing out phthalates from virgin vinyl flooring by the end of 2015. That, in turn, put pressure on other industry players to follow suit, and just days later, Lowe’s announced it would match Home Depot’s commitment. Lumber Liquidators has also asked suppliers to move to alternatives.
Everyone wins from this important work. Consumers get safer products, and retailers enjoy better customer confidence while reducing risk. There are far too many hazardous chemicals in products on store shelves. We’re making progress, but there’s much more work to do.

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Group Urges CPSC to Get Asbestos Out of Crayons, Toys

| E&E News PM

By Sam Pearson

An advocacy group's tests of crayons and toy crime-scene dusting kits are prompting calls for the Consumer Product Safety Commission to halt the sales of such products.
A report released today by EWG Action Fund, the advocacy branch of the Environmental Working Group, found crayons and crime-scene dusting kits sold by retailers Amazon.com Inc., Toys "R" Us Inc., Dollar Tree Inc. and Party City contained detectable levels of asbestos, a cancer-causing mineral.
The group said it commissioned the tests to gauge the effectiveness of previous actions to remove asbestos from consumer products. EWG Action Fund contracted with the Scientific Analytical Institute in Greensboro, N.C., to perform the tests. The laboratory detected the presence of asbestos fibers in eight of 54 items tested, the report said.
CPSC has previously examined similar products. In 2000, the agency examined the risk of exposure to asbestos from crayons sold under the brands Crayola, Prang and Rose Art and found "a very low risk," CPSC spokesman Scott Wolfson said. The presence of asbestos fibers in toy crime-scene dusting kits was identified by a consumer advocacy group in 2007.
In both cases, CPSC worked with companies to voluntarily reformulate the products to use different materials, Wolfson said.
Sonya Lunder, a senior research analyst at EWG Action Fund and the lead author of the report, said it was troubling to find that asbestos fibers were still present in some children's products, despite CPSC's knowledge of their use.
"We're very concerned about kids using these products," Lunder said
CPSC will perform its own tests on the products EWG identified, Wolfson said. However, the CPSC report will need to gather more specific data concerning not only the quantity of asbestos present but the levels to which children are likely to be exposed, Wolfson said, as required under the Federal Hazardous Substances Act.
Sens. Dick Durbin (D-Ill.) and Ed Markey (D-Mass.), who have co-sponsored a bill this year to require additional disclosure of asbestos use, said in a statement that EWG's findings were alarming.
"Children's playtime should be filled with fun, not asbestos," the lawmakers said.
Durbin's bill, the "Reducing Exposure to Asbestos Database Act of 2015" (S. 700), would establish a new right-to-know database to allow consumers to learn more about where asbestos is present (E&E Daily, March 11).
The lawmakers wrote a letter to CPSC urging that the agency take regulatory action to ban talc from children's products and issue a rule on asbestos similar to the agency's pending restrictions on certain phthalates.
However, the phthalates rule is authorized under the Consumer Product Safety Improvement Act of 2008, while the agency regulates asbestos under a different federal law.
Durbin and Markey also wrote letters to Amazon, Toys "R" Us, Dollar Tree and Party Cityurging that they stop selling the items.
Toys "R" Us spokeswoman Kathleen Waugh said the company would look into the issue.
"At this time, we are reviewing the referenced report, along with supplier test reports, to ensure full compliance to our strict safety standards," Waugh said.
Adrienne Appell, a spokeswoman for the Toy Industry Association of America, said in a statement that the products identified by EWG were already subject to various safety standards.
"These requirements ensure that children's products do not contain any substances that may be hazardous to children, and are considered to be the most protective in the world," Appell said.
Dollar Tree spokesman Randy Guiler said in a statement that the company would review the findings.
Dollar Tree uses "a robust and stringent CPSC-accredited, independent-testing laboratory to ensure that our imported products meet all safety and legal standards," Guiler said.
Amazon and Party City did not respond to a request for comment this afternoon.

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Asbestos Found in Kids' Crayons, Lab Kits

Jul 8, 2015 | BNA Daily Environment Report

By Martina Barash

Federal consumer product regulators say they will look into an environmental and health group's findings that several samples of crayons and toy fingerprint kits contained asbestos fibers when tested.The group, EWG Action Fund, sent a letter to Consumer Product Safety Commission Chairman Elliot Kaye July 8 urging the agency “to investigate asbestos contamination in children's products and take all necessary precautions to protect children from the dangers of asbestos exposure.”The group also issued a report on the findings.The CPSC “will look into the products identified in the report,” agency spokesman Scott Wolfson told Bloomberg BNA July 8.But the agency, concerned about chain-of-custody issues, will obtain its own samples and conduct tests, he said.Out of 21 “crime scene” fingerprint kits tested, two contained asbestos, according to EWG Action Fund, an organization related to the Environmental Working Group. The results were confirmed by a second laboratory.More than 1 million asbestos fibers were found in each of the two kits, Sonya Lunder, a senior research analyst with EWG Action Fund, said in a call with reporters July 8.Talc, which is often found alongside asbestos deposits in mines, was most likely the source, according to the report, which Lunder co-authored. Talc is used as a binding agent in crayons and is part of the fingerprint powder, the report said.Instructions for one of the kits, the EduScience Deluxe Forensics Lab Kit, told users to use a blower to blow the fingerprinting powder in two separate steps, according to the report.CrayonsThe primary laboratory engaged by EWG Action Fund, the Scientific Analytical Institute, tested 28 boxes of crayons. Eight samples were found to contain asbestos; asbestos findings in four of these were confirmed by the second lab.The CPSC said in 2000 that the risk of exposure to asbestos from crayons is very low, according to the EWG Action Fund report.The CPSC “maintains that the asbestos fibers are embedded in the crayon wax and that a child's body temperature is not warm enough to melt ingested wax and free the fibers,” the report said.But the CPSC said it would monitor children's crayons, and said crayons should not contain asbestos fibers “as a precaution,” according to the report.Wolfson said that even then-Chairman Ann Brown said there was low risk, yet she also advised crayon makers to move away from talc, and two did so.In response to an advocacy group's testing in 2007 that found asbestos in a crime-scene kit, the CPSC obtained an agreement from that company to move away from talc as well, Wolfson said.The regulatory road would be more difficult than for lead, which is spelled out in the Consumer Product Safety Improvement Act, Wolfson said.For asbestos, under the Federal Hazardous Substances Act, “exposure is the key regulatory approach” rather than content, and the staff's work would be harder, he said.

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Chemical Security News

Insurers' Report on Grid Cyberattack Faces Skepticism

Jul 8, 2015 | Political Pro - Whiteboard

By David Perera

A Lloyd’s of Londonreport estimating the impact a cyberattack on the U.S. power grid is generating some skepticism from cyber experts who see self-interest at play.

The report postulates a malware-driven attack on the grid that successfully takes offline more than 70 generators, plunging 15 states and Washington, D.C., into darkness. Costs would be between $243 billion and more than a trillion, says Lloyd’s.

The report itself acknowledges the scenario is “improbable,” but calls it “technologically possible.” It also says such an attack would be the kind of once-in-two-centuries event that planners are supposed to consider when building flood defenses, for example.

“I do agree, the scenario isn’t impossible, but it is very thin on details and supposes a very high degree of [technological] uniformity among the generators (which simply isn’t the case),” said Patrick Miller, founder of the Energy Sector Security Consortium, a Washington state-based nonprofit.

The bulk of the paper is focused on the consequences of such a devastating cyberattack, rather than on how one might be successfully launched.

“This was a research paper commissioned by an insurance company. It should be no surprise that the results strongly favor a position where more insurance would be desirable,” Miller added.

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DOT Proposes Long-Stalled Pipeline Safety Rules Expanding Use of Automatic Valves:

Jul 8, 2015 | Politico Pro -Whiteboard

By Elana Schor

The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration today proposed long-stalled regulations expanding the use of automatic shut-off valves on natural gas lines.

The PHMSA proposal, which had languished under review at the White House Office of Management and Budget for months, moves forward on a National Transportation Safety Board recommendation from 2001 that the automatic valves be installed on all new and replaced pipelines. Under the new regulation, which will be subject to a 60-day public comment period, the valves — also known as excess flow valves — would be mandatory on new or replaced gas lines serving residential and small commercial properties.

“Over 2.2 million miles of natural gas distribution pipelines, including service lines, operate in the U.S. and the use of these devices can have a significant impact on reducing the consequences of natural gas leaks, should they occur,” Transportation Secretary Anthony Foxx said in a statement on the proposal.

The House Energy and Commerce Committee is holding a hearing next week on PHMSA’s pace of compliance with mandates in the 2011 pipeline safety bill as well as NTSB recommendations.

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API Finalizes Pipeline Safety Management Document

Jul 9, 2015 | BNA Daily Environment

By Rachel Leven

The American Petroleum Institute finalized its recommended practice document July 8 on safety management systems for oil and gas pipeline operators, an area that the Transportation Department hasn't ruled out regulating.This type of business system has been used in several other industries, including aviation, to incorporate processes for companies to identify, monitor and address safety issues related to operations. The document that is identified by the number 1173 lays out a cycle—Plan-Do-Check-Act—as part of the safety management system that considers 10 factors that range from risk mitigation to emergency response.“Pipelines are safe and efficient, but we are always looking for new ways to make them better, which is why industry is embracing this new standard,” Robin Rorick, midstream and industry operations director for API, said in a statement.API 1173 was developed over two years under a standard setting practice that is accredited by the American National Standards Institute. The National Transportation Safety Board formally recommended developing this standard following a pipeline incident near Marshall, Mich., in 2010 that sent about 20,000 barrels of crude oil into a tributary of the Kalamazoo River.Several pipeline companies, such as Kinder Morgan, pipeline industry groups, such as the Association of Oil Pipe Lines, and state and federal regulators, such as PHMSA, participated in the two-year development process. The next step, according to an Association of Oil Pipe Lines news release, is for the pipeline industry to help its members implement this document.Rulemaking Still PossibleThe document comes months after a senior Pipeline and Hazardous Materials Safety Administration official said that the agency doesn't have plans to issue a pipeline safety management system rule, but that it may eventually release a rule on the issue.Until then, Jeffrey Wiese, associate administrator for pipeline safety within PHMSA, said that agency would promote the industry document (226 DEN A-11, 11/24/14).Rorick told reporters on July 1 that the industry didn't want to wait for regulators to address issues like safety management systems. Recommended practice documents are a good way “to move the ball forward,” because it provides industry something to “coalesce around.”However, Rorick said he considered the recommended practice well-researched enough to be used by regulators as a regulation. It would be “great” if the recommended practice influenced a rule, he said.“I would not be afraid to say that it is our hope that what we produce will influence regulation because we feel that the recommended practices we develop are the best recommended practices that are out there and have the expertise and the knowledge from our industry,” Rorick said.

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PHMSA Proposes More Excess Flow Valve Requirements

Jul 9, 2015 | BNA Daily Environment Report

By Rachel Leven

The nation's pipeline safety regulator released a proposed rule July 8 that would increase the number of gas service lines required to install certain valves to stop gas flow if a pipe is broken or damaged.Installing these valves—either excess flow or curb valves—would minimize the impact of a leak or explosion, according to the Pipeline and Hazardous Materials Safety Administration. The rule would have—at a 7 percent discount rate—annual costs ranging from $4.4 million to $17.9 million and annual benefits of $7.7 million in addition to the unquantified benefit of reducing methane releases, the proposal (RIN 2137-AE71) said.“Over 2.2 million miles of natural gas distribution pipelines, including service lines, operate in the U.S. and the use of these devices can have a significant impact on reducing the consequences of natural gas leaks, should they occur,” Anthony Foxx, secretary of the Transportation Department, said in a news release.The American Gas Association, which represents hundreds of local natural gas utilities, is one of several groups that have previously expressed an interest in this rule. Several gas transmission and distribution pipeline companies such as MidAmerican Energy Co. and Southwest Gas Corp., as well as pipeline industry suppliers such as Gas Breaker Inc., and government and public entities also have expressed interest.PHMSA's proposed rule responds to a congressional mandate from the Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011 (Pub. L. No. 112-90) and a recommendation from the National Transportation Safety Board.Flow, Curb ValvesThe proposal, which the agency issued an advanced notice of proposed rulemaking in November 2011, would require new or replaced pipelines serving larger homes and small businesses to install excess flow valves—a requirement already in place for lines serving single-family homes.It also would require new or replaced lines servicing certain large-quantity gas consumers, such as industrial facilities, to install manual service line shut-off valves, known as curb valves.The proposal specifically affects pipes that service small commercial businesses and multifamily dwellings, as well as branched service lines that service multiple single-family residences, according to PHMSA.The proposal appears to have addressed concerns that the American Gas Association had when it suggested that the agency exempt certain large-quantity gas consumers from the excess flow valve requirement (130 DEN A-6, 7/8/15).At First Glance“We are still reviewing the rule but, at first glance, it seems to be consistent with AGA's comments submitted to the Advance Notice of Proposed Rulemaking in 2012,” Christina Sames, vice president of operations and engineering for the association, told Bloomberg BNA in a e-mailed statement.“We support expanding the use of excess flow valves in new and fully replaced service lines to applications other than single-family residences where operating conditions allow their use,” he added.Sames said her group will be discussing the rule with its members.Notably, the rule also touted as an unquantified benefit “environmental externalities associated with methane release.” PHMSA recently cited this rule as one that would have ancillary methane reduction benefits, and thus contribute to the Obama administration's methane strategy (10 DEN A-1, 1/15/15).It will be published in the Federal Register at a date determined by the register, the agency said. It then will be available for comment for 60 days under Docket No. PHMSA-2011-0009.

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Canadian Association Updates Pipeline Standards

Jul 9, 2015 | BNA Daily Environment Report

The Canadian Standards Association has published an updated version of its standards for oil and gas pipelines that is intended to improve pipeline safety. The 2015 version of CSA Standard Z662-15: Oil & Gas Pipeline Systems includes extensively updated sections on pipeline integrity management programs, safety management systems and engineering assessment processes, as well as a new annex providing detailed guidance on development of qualification and welding procedure specifications, the independent, not-for-profit body said in a July 7 statement. A thorough understanding of the standard is a critical element in safe design, construction and maintenance of oil and gas pipelines, as the standard is referenced in federal, provincial and territorial legislation, it said. “This new standard will also be our second standard available in an interactive version that can be downloaded to any mobile device and accessed remotely,” CSA executive director and vice president Gianluca Arcan said. The standard applies to the design, construction, operation, maintenance, deactivation and abandonment of oil and gas industry pipeline systems used to transport liquid hydrocarbons, crude oil, condensate and liquid petroleum products, natural gas liquids and liquefied natural gas, oilfield water and steam, carbon dioxide for oilfield enhanced recovery schemes and gas. It is available at http://bit.ly/1IHNo8o.

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Union Sues OPM over Data Breach

Jul 8, 2015 | E&E News PM

By Kevin Bogardus

The National Treasury Employees Union has filed a lawsuit against the Office of Personnel Management over the massive breach of federal employees' personal information.
The union, which represents roughly 150,000 employees in 31 federal agencies and departments, says in its legal complaint filed today in the U.S. District Court of Northern California that OPM violated its members' privacy rights by not protecting their private data.
NTEU President Colleen Kelley told reporters that the agency's response to the breach "has been deficient."
"OPM has been dribbling out information, has not acted aggressively to provide federal employees the massive protection that it can, has hired a contractor that's not up to the task, and has left employees in the dark about how themselves and their families might have been impacted," Kelley said.
Last month, OPM announced that its computer systems had been penetrated by hackers, with many experts suspecting China was behind the attack.
The personnel agency has described the breach as two separate intrusions. The first attack focused on federal employees' personnel files, affecting about 4.2 million current and former government workers. The second dealt with workers' background investigations, and the agency has yet to provide an estimate on the number affected by that attack -- though 18 million Social Security numbers may have been compromised.
Kelley said that her members believe the breach has "put them at risk for years to come" and that "they are very scared."
The union leader noted that the data breach hotline has been beset with problems and that NTEU believes the hack has affected more people than OPM has disclosed so far.
"We suspect and believe there are many more to come, more than the 4 million," Kelley said.
The NTEU president also lamented that OPM has provided only 18 months of free credit monitoring services for federal employees affected by the breach. The union has lobbied to extend that time period, including pushing for legislation on Capitol Hill.
"We have it made very clear that's inadequate," Kelley said.
An OPM spokesman declined to comment.
The data breach has enraged not just federal worker unions but also members of Congress. The incident has been subject to several congressional hearings, including three during the week before lawmakers left Capitol Hill for the July Fourth recess (E&E Daily, June 26).
NTEU also is not the first union to sue OPM over the data breach. The American Federation of Government Employees, the country's largest federal worker union, filed a class-action lawsuit against the agency last week (Greenwire, June 30).
Kelley described her experience dealing with OPM over the breach as "frustrating," but she declined to call on OPM Director Katherine Archuleta and Donna Seymour, the agency's chief information officer, to step down because of the ordeal.
"I think they should be doing everything they can to identify the scope of this problem and to fix it so it never happens again," Kelley said.

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Watchdog Slams 'Historical Negligence' at OPM after Data Breach

Jul 9, 2015 | E&E Daily

By Kevin Bogardus

The Office of Personnel Management's internal watchdog pulled no punches at a congressional hearing yesterday when he assessed the agency's cybersecurity defenses after a massive data breach.
Testifying at a joint hearing held yesterday by the House Science Subcommittee on Research and Technology as well as the Subcommittee on Oversight, Michael Esser, OPM's assistant inspector general for audits, told lawmakers that the agency has long known of problems with its information technology but has failed to plug the holes in its computer networks, exposing the private information of millions of federal employees.
"OPM has known about vulnerabilities in its system for years but has not corrected them," Esser said.
In addition, the agency watchdog noted that OPM has shown a "historical negligence of IT security in general."
In his written testimony, Esser said that the agency has a long history of not securing the proper security authorizations for its computer networks. Eleven of OPM's systems were operating without the proper authorizations in fiscal 2014, and that figure could jump up to 23 systems without the required security controls in the coming years if OPM doesn't seek to renew their authorizations.
Esser was asked by Rep. Barbara Comstock (R-Va.), chairwoman of the Research and Technology Subcommittee, if anyone at OPM has been fired or reprimanded over the data breach.
"I'm not aware of any," Esser said.
Comstock also noted at the hearing that she has received notification from OPM that her personal information may have been compromised in the breach.
Esser also said at the hearing that OPM management pays little attention to the issues the IG has discovered with cybersecurity at the agency.
"Sometimes we feel like things that we report don't get the attention that they should get," Esser said.
OPM has described the data breach as two separate intrusions into its computer networks. The first attack scooped up government workers' personnel files, affecting 4.2 million current and former federal employees. For the second attack, which centered on their background investigations, OPM has been reluctant to provide an estimate on how many individuals have been affected, though 18 million Social Security numbers may have been compromised.
Esser was the only agency official present at yesterday's hearing. OPM Director Katherine Archuleta and Donna Seymour, the agency's chief information officer, did not attend.
Those two officials have come under fire from members of Congress, with some calling on them to resign after the breach. Last month, they often struggled with tough questions from lawmakers at several different hearings (E&E Daily, June 26).
Federal worker unions are also upset with OPM's response to the breach.
Yesterday, the National Treasury Employees Union filed a lawsuit against the agency over the breach. Also, the American Federation of Government Employees began litigation against OPM last week (E&ENews PM, July 8).
Government employees are frightened about the uncertainty regarding who has their private data and what they will do with it.
"We have a lot of distrust out there. A lot of folks are scared, obviously. They don't know what's going to happen," said David Snell, director of the Federal Benefit Service Department for the National Active and Retired Federal Employees Association, at yesterday's hearing.
It seems the federal government has a long way to go to bolster its cybersecurity protections. Gregory Wilshusen, director of information security issues at the Government Accountability Office, was blunt when asked to give a letter grade for federal IT security.
"D," Wilshusen said.

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Former CSB Chair Could Face Criminal Probe

Jul 9, 2015 | BNA Daily Environment Report

By Robert Iafolla

The bipartisan leadership of a congressional oversight panel asked the Justice Department on July 8 to launch a criminal investigation into whether former Chemical Safety and Hazard Investigation Board Chairman Rafael Moure-Eraso lied during the committee's probe of the agency.In a letter to Attorney General Loretta Lynch by the chairman and ranking member of the House Committee on Oversight and Government Reform, the lawmakers cited three instances in which Moure-Eraso's testimony was contradicted by documents or statements from other officials.“The inconsistencies between Mr. Moure-Eraso's testimony and other information received by the committee raise significant concerns about the truthfulness of Mr. Moure-Eraso's testimony,” Reps. Jason Chaffetz (R-Utah), the committee chair, and Elijah Cummings (D-Md.), the ranking member, said in the letter.“Furthermore, the testimony in question is related to key aspects of the committee's investigation, and in each case, Mr. Moure-Eraso appeared to answer questions in such a way as to avoid additional scrutiny,” the letter said.Chaffetz and Cummings asked the White House on March 18 to remove Moure-Eraso and his top two lieutenants from the CSB. Moure-Eraso resigned his chairmanship under White House pressure March 26 and left the agency April 10, less than three months before his five-year term was set to expire (59 DEN A-6, 3/27/15).Moure-Eraso's lieutenants, CSB Managing Director Daniel Horowitz and General Counsel Richard Loeb, were put on leave in June (117 DEN A-18, 6/18/15).Contradicted TestimonyThe House Oversight Committee has investigated leadership problems at the CSB for more than two years, and Moure-Eraso testified twice before the panel. Chaffetz and Cummings said in the letter to Lynch that Moure-Eraso's testimony in those hearings may have involved lying under oath, making false statements and obstructing Congress.The lawmakers pointed to the three specific issues:• Moure-Eraso testified that he consulted with Loeb before allowing access to the e-mails of two CSB staffers, but Loeb told the committee that Moure-Eraso didn't consult with him.• Moure-Eraso testified that the CSB's former chief information officer was responsible for overseeing production of e-mails to the Environmental Protection Agency's Office of Inspector General, but the inspector general told the committee the former chief information officer contradicted that testimony in a sworn statement.• Moure-Eraso testified that he stopped using his personal e-mail for official business roughly 18 months before the committee's June 2014 hearing, but documents and information from the OIG show that Moure-Eraso continued using personal e-mail until a later date.Moure-Eraso: No Intent to MisleadThrough his attorney, Moure-Eraso denied any wrongdoing.“Mr. Moure-Eraso maintains that his answers were accurate to the best of his knowledge and information at the time they were made,” Jim Rodio, a sole practitioner and former federal prosecutor, told Bloomberg BNA July 8. “There was no intent on his part to mislead the committee.”CSB spokeswoman Hillary Cohen declined to comment.Mike Wright, United Steelworkers director of health, safety and environment, said Moure-Eraso should be allowed to retire in peace.“The real issue is creating the most effective CSB as possible,” Wright told Bloomberg BNA July 8. “When we focus on the CSB, it should be on the future, not the past.”

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Energy and Environment News

(ACC Mentioned) ACC Supports EPA Funding Measure Prevent to Lower Ozone Standards

Jul 8, 2015 | EP Newswire

By Caitlin Nordahl

The American Chemistry Council (ACC) issued a statement July 8 supporting measures in the fiscal 2016 EPA-interior appropriations bill that would prevent the Environmental Protection Agency (EPA) from lowering ozone national ambient air quality standards (NAAQS) until 85 percent of counties reach the current levels.

“We commend Chairman Hal Rogers (R-Ky.) and Congressman Evan Jenkins (R-W.V.) for seeking to maintain today’s ozone standards—the most stringent ever—as more communities come into compliance,” said the statement. “By focusing on helping those states and facilities that are falling short, EPA could promote continued air quality improvement alongside manufacturing growth.”

The EPA proposed new NAAQS standards in November 2014 that would lower the current rate of 75 parts per billion to a number in the range of 65 to 70 parts per billion. According to the ACC statement, 2,000 counties in 45 states would be unable to meet the lower range of those standards.

“Industry located in non-attainment areas can face increased operating costs, regulatory permitting delays and restrictions on building or improving facilities,” according to the statement. “EPA’s plan makes little sense when ozone concentrations are falling, manufacturers are expanding and the new production is cleaner and state-of-the-art. We urge lawmakers to approve H.R. 2822.”

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Inhofe: U.S. 2025 Emissions Pledges ‘Don't Add Up'

Jul 9, 2015 | BNA Daily Environment Report

By Dean Scott

The U.S. pledge to cut carbon pollution up to 28 percent over the next decade as part of a global climate change agreement is “not only unrealistic but also does not add up,” the Republican chairman of the Senate Environment and Public Works Committee said at a July 8 hearing.Sen. James Inhofe (Okla.), speaking at a hearing where Republicans honed in on Obama administration efforts to get a global climate deal signed at end-of-year talks in Paris, said the Obama administration has not demonstrated exactly how the U.S. can cut emissions to that level.Speaking to reporters afterward, Inhofe also reiterated a threat Republicans have been making for months, to pursue a Senate vote that would use expedited procedures under the Congressional Review Act to kill the Environmental Protection Agency's power plant carbon pollution limits (7 DEN B-1, 1/12/15; 187 DEN B-1, 9/26/14) .“I'm going to do everything I can,” to target the power plant limits, the chairman said.The U.S. pledge to cut emissions 26 percent to 28 percent by 2025 from 2005 levels, Inhofe said, relies “on an exaggerated stretch of current and future regulatory actions” and the administration's assumption that it can squeeze those reductions from various regulatory actions without any additional congressional authority.The chairman said the U.S. pledge is unattainable in part because the administration is not allowing for the fact that regulations are often delayed and face multiple court challenges.Democrats Applaud Obama ActionThe administration has argued that its pledge is ambitious but attainable largely through ongoing regulatory actions, from power plant carbon pollution limits to more stringent vehicle and appliance efficiency standards. It formally submitted the pledge to the United Nations in March, vowing to make its “best efforts to achieve the upper end” of the 26 percent to 28 percent range (62 DEN A-1, 4/1/15).China also has submitted its formal, pledge, to peak its emissions by 2030 and perhaps sooner and cut its carbon emissions per unit of economic output 60 percent to 65 percent by 2030 from 2005 levels (126 DEN A-3, 7/1/15).Democrats and Republicans on the Senate committee split along party lines on Obama's push for engagement in the UN climate talks, with Republicans charging the president is doing an end-run around Congress by negotiating a deal relying on his executive authority and thus bypassing the need for Senate ratification.Democrats argued that Obama has few options given congressional intransigence over the climate change issue and deserves praise for tackling the issue with a regulatory approach.“The Obama Administration has already taken significant steps toward reaching this target, including establishing new fuel economy and carbon standards for cars and heavy duty trucks,” Sen. Barbara Boxer (Calif.), the committee's ranking Democrat, said.Proposed under Section 111(d) of the Clean Air Act, the EPA Clean Power Plan (RIN 2060-AR33) would set unique carbon dioxide emissions rates for each state's power sector. The final rule is expected in August (99 DEN A-21, 5/22/15).Detailed Analyses Needed?According to a May analysis by the Energy Information Administration, the EPA's proposal is expected to cut U.S. power sector carbon dioxide emissions between 484 million metric tons and 625 million metric tons by 2030, a reduction of between 29 percent and 36 percent from 2005 levels (100 DEN A-1, 5/26/15).But witnesses at the hearing were divided over whether the 26 percent to 28 percent in overall emissions cuts is attainable.Majority witnesses including George Mason University School of Law professor Jeremy Rabkin and Jeffrey Holmstead, a partner at Bracewell & Giuliani LLP, were skeptical. Witnesses for the Democratic minority—World Resources Institute Senior Fellow Karl Hausker and Sarah Ladislaw, director of the Center for Strategic & International Studies' Energy and National Security Program—were more optimistic.Ladislaw cautioned that additional actions might be needed beyond what the Obama administration has proposed if the U.S. is to make good on its pledge. For example, the EPA power plant emissions limits, widely considered the “most significant portion” of Obama's climate agenda, will contribute about a 10 percent reduction in overall U.S. emissions by 2025 compared to 2005 levels, she said, well short of the overall 26 percent to 28 percent reduction pledge.But Holmstead, a former EPA assistant administrator for air and radiation under President George W. Bush, said it “is troubling” the administration has not publicly disclosed precisely how the U.S. can achieve that level of a reduction, other than noting the pledge was the product of a thorough interagency review.“The administration has never provided anything” that could be considered a detailed explanation of its pledge, he said.“In fact, they won't even say whether such a document exists,” Holmstead said. “When the president or the State Department makes a commitment on behalf of the United States, this is not something to be taken lightly.”

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House Votes to Halt EPA's Crackdown on Ozone Pollution

Jul 8, 2015 | E&E News PM

By Amanda Peterka

The House voted today to torpedo the Obama administration's efforts to tighten the Clean Air Act ozone standard in a series of votes on the Republicans' fiscal 2016 spending plan for the Interior Department and U.S. EPA.
By a vote of 180-249, the House struck an amendment by Rep. Donna Edwards (D-Md.) that would have eliminated a policy provision blocking tightening the standard until a majority of counties meet the current limit.
Six Democrats joined 243 Republicans in voting against the amendment. The Democrats crossing the party line were Reps. Brad Ashford of Nebraska, Henry Cuellar of Texas, Ann Kirkpatrick of Arizona, Collin Peterson of Minnesota, Terri Sewell of Alabama and Kyrsten Sinema of Arizona.
EPA has proposed toughening the standard of 75 parts per billion -- set in 2008 by the George W. Bush administration -- to between 65 and 70 ppb based on a review of public health data. EPA is poised to finalize the rule by an Oct. 1 court-ordered deadline.
Critics have argued that lowering the standard would impose heavy costs on industry. The National Association of Manufacturers, one of the top opponents to EPA's proposal, immediately praised the vote.
"Today, the House stood with manufacturers to promote a more sensible approach to ozone regulations, supporting flexibility and reasonableness over costly and unnecessary new requirements," NAM Vice President Ross Eisenberg said in a statement.
EPA has said the current standard is no longer adequate to protect public health. Environmental and public health groups have called on the agency to set the standard even lower, at 60 ppb, citing scientific studies that have linked ozone concentrations above that level to negative health effects.
The policy rider in the bill -- which was added during a markup in the Appropriations Committee -- would prohibit EPA from updating the standard until 85 percent of counties have come into attainment with the 75 ppb limit. It is similar to stand-alone legislation introduced in both the House and Senate that has not received any votes. A Senate spending plan for the Interior Department and EPA also includes the policy rider. EPA identified 46 areas in 2012 that were out of compliance.
"We need to allow the EPA, in fact empower the EPA, to follow the science and create minimum standards necessary to protect public health," Edwards yesterday said on the floor in support of her amendment.
Environmentalists condemned the floor vote, saying it would put people at risk of exposure to dangerous amounts of ozone, which is a key component of smog. They've also urged the House to reject the entire spending plan for its funding levels and policy riders.
Rep. Ted Yoho (R-Fla.) had requested a recorded vote today on a separate amendment that would have barred EPA from setting a tougher standard, regardless of whether the whole country meets the 2008 limit, but he withdrew the amendment. It had failed on a voice vote yesterday.
Overall, the House GOP spending plan would provide the Interior Department, EPA and related agencies with $30.17 billion, or $246 million below current spending levels and $3 billion below President Obama's fiscal 2016 request for the agencies. EPA would take a hit of about 9 percent, or $718 million, under the spending plan.
The bill includes slight funding boosts for Interior agencies, including the Bureau of Land Management and National Park Service, while funding for the Fish and Wildlife Service and the Forest Service -- which is housed within the Agriculture Department -- would remain roughly level.
Along with the ozone policy rider, the bill would bar EPA from completing its Clean Power Plan to reduce carbon dioxide emissions from existing power plants or put in place its Waters of the U.S. rule. The White House has threatened to veto the legislation over the inclusion of policy riders.Sage grouse amendment fails
The House today also voted to delay an Endangered Species Act listing for the greater sage grouse.
An amendment offered by Rep. Niki Tsongas (D-Mass.) to strike a provision that pushes back a decision by Fish and Wildlife on the grouse's future fell by a vote of 186-243. Nine Republicans voted in favor of the amendment, while nine Democrats voted against it.
With the failure of the amendment, the spending bill would continue for one year a ban on preparing proposed listing rules for the greater sage grouse and the Columbia Basin distinct population segment of sage grouse. FWS is under a legal mandate to decide by Sept. 30 whether the greater sage grouse deserves protection under ESA, but the listing rider would prevent a rulemaking that would set federal restrictions in motion until October 2016.
On the floor yesterday, Tsongas argued that the rider was "unnecessary and completely inappropriate" and would undermine FWS's scientific decision. Rep. Mike Simpson (R-Idaho) defended the rider, arguing that the grouse decision would affect 11 states and that the rider was simply meant to give FWS more time to make a decision.
The failed Tsongas amendment would have also overturned riders that require FWS to reissue rules from 2011 and 2012 that delisted wolves in the western Great Lakes and Wyoming, and require the agency to amend an interim rule that would allow some activities to harm or kill northern long-eared bats.Other Democratic amendment votes
The House today voted down several other Democratic attempts to eliminate policy riders and boost funding in the bill for EPA and the Department of the Interior. Members may offer more amendments later this evening; the lower chamber plans to complete consideration of the bill tomorrow.
By a vote of 186-243, the House rejected an amendment by Rep. Jared Polis (D-Colo.) that would strike a rider in the bill barring federal agencies from considering the social cost of carbon in regulations. A second Polis amendment that sought to halt transfers of public land to private ownership fell by a vote of 192-237.
The House also voted 189-237 to reject an amendment by Rep. Don Beyer (D-Va.) that would require all funds in the bill to follow recent executive orders on climate change and energy efficiency.
On mining, the House voted 189-239 to reject an amendment by Rep. Raúl Grijalva (D-Ariz.) that would scrap a bill provision that would prevent the Office of Surface Mining, Reclamation and Enforcement from promulgating a stream protection rule due in the coming weeks.
Republicans and pro-coal Democrats have long opposed the rule, while Grijalva, top Democrat on the Natural Resources Committee, said the rulemaking process should move forward with the goal of doing "a better job at protecting streams."
A separate amendment by Grijalva to strike a rider that makes certain public lands available for grazing without National Environmental Policy Act review in the wake of drought and wildfires fell by a vote of 178-251. The House voted 183-244 to reject a third Grijalva amendment to eliminate a policy provision that blocks new regulations on ivory trading.
The House also voted down an amendment, 184-243, that would boost funding for EPA's inland oil spill programs by $5.4 million, bringing the total for inland spill response up to Obama's full request of $23.4 million.
Rep. Lois Capps (D-Calif.) proposed to offset the increase by taking funding from the Bureau of Ocean Energy Management's leasing activities, citing the May 19 spill off the coast of Santa Barbara.
"We should not be expanding oil drilling unless we are properly prepared for the spills that will inevitably occur," Capps said in support of her amendment.
An amendment by Rep. Kathy Castor (D-Fla.) to boost funding for brownfields reclamation likewise was voted down, 188-239.
Rep. Brenda Lawrence (D-Mich.) offered an amendment that fell by a vote of 179-250 that would have allowed the Bureau of Land Management to implement its newly finalized hydraulic fracturing regulations; the bill contains a policy provision barring BLM from putting them in place.
Tsongas offered an amendment that aimed to strike a rider in the bill that blocks the Obama administration from putting in place its National Ocean Policy, which provides for stewardship of the oceans, coasts and Great Lakes. The House voted down the provision 191-238.
The House also rejected an amendment offered by Rep. John Garamendi (D-Calif.) by a vote of 181-244 that would take money from BLM's oil and gas exploration program and funnel it toward combating invasive species.
An amendment offered by Northern Mariana Islands Del. Gregorio Kilili Camacho Sablan (I) to provide more funding for U.S. territories fell by a vote of 183-245.

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House Rejects Lifting Restrictions on Ozone Regulations

Jul 8, 2015 | The Hill - Floor Action

By Cristina Marcos

The House rejected a proposal on Wednesday to eliminate a provision in a GOP spending bill that would restrict the Obama administration’s ability to enforce air quality standards for ozone.
Under House Republicans’ 2016 spending bill for the Department of Interior, the Obama administration could not propose or implement ozone regulations below the current air quality standard unless 85 percent of counties that don’t currently meet it are fully compliant.
The Environmental Protection Agency (EPA) is currently finalizing a rule lowering the acceptable concentration of surface-level ozone from 75 parts per billion to 65 or 70 parts per billion.
Rep. Donna Edwards (D-Md.) offered an amendment to the Interior Department spending bill to do away with the restrictions, but it failed on a 180-249 vote.
Edwards cited potential dangers to public health and the environment if ozone standards are kept at the status quo.
“Breathing ozone is dangerous for everyone, but particularly for children, for the elderly and people of all ages who have lung diseases,” Edwards said. “We need to allow the EPA -in fact, empower the EPA - to follow the science and create minimum standards necessary to protect public health.”
Under the Clean Air Act, the EPA must review its ozone standards every five years, though it is not necessarily required to change them.
Republicans said that it would be premature and costly to make ozone standards even stricter after establishing a rule in 2008.
“Before we finish that job, EPA wants to move the goalposts,” said Rep. Pete Olson (R-Texas). “This bill simply includes a pause button on new EPA rules until we can finish the job and reach our current mandates.”
The House is expected to pass the underlying Interior Department appropriations bill on Thursday, after debating more than 100 amendments.
- Devin Henry contributed.

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EPA: Mercury Decision Doesn't Affect Chromium Rule

Jul 9, 2015 | BNA Daily Environment Report

By Patrick Ambrosio

A recent decision by the U.S. Supreme Court on the Environmental Protection Agency's mercury and air toxics standards for power plants is not relevant to litigation over revised pollution standards for chromium electroplating facilities, the EPA told a federal appeals court (Nat'l Ass'n for Surface Finishing v. EPA, D.C. Cir., No. 12-1459, letter filed, 7/7/15).In a letter filed July 7 with the U.S. Court of Appeals for the District of Columbia Circuit, the agency said the Supreme Court's decision that the EPA was required to consider cost when deciding whether to regulate power plants “has no bearing” on a challenge brought by environmental and industry organizations over the chromium electroplating standards.The Supreme Court in June ruled that the EPA acted unreasonably when it decided to not factor cost consideration into its decision that it was “appropriate and necessary” to regulate power plant emissions (Michigan v. EPA, 80 ERC 1577, 2015 BL 207163 (U.S. 2015); 125 DEN A-1, 6/30/15).The EPA said the high court's decision, as well as the appeals court decision that the Supreme Court overturned, did not involve the EPA's review and revision of emissions standards under Section 112 of the Clean Air Act. Instead, those decisions involved the agency's promulgation of initial emissions standards for hazardous air pollutants.The revised chromium electroplating standards (RIN 2060–AQ60), issued in September 2012, set more stringent limits on hexavalent chromium emissions. Environmental groups challenged the stringency of the requirements, while the National Association for Surface Finishing alleged the agency violated the air act by revising the emissions standards despite the absence of developments in practices, processes or control technologies.Petitioners Cite Mercury RulingThe Sierra Club and other environmental petitioners, in a July 2 letter to the court, agreed that the Supreme Court's ruling in Michigan v. EPA is not relevant to the chromium electroplating rule. Earthjustice filed the letter on behalf of the Sierra Club, the Clean Air Council and California Communities Against Toxics.However, the environmental groups argued that a 2014 holding by the D.C. Circuit, White Stallion Energy Ctr. LLC v. EPA, is still relevant and was not overturned by the Supreme Court's decision. In that underlying case, the D.C. Circuit held that once the EPA determines it will set standards, the usual standard-setting framework under Section 112 applies, the petitioners said (White Stallion Energy Ctr. LLC v. EPA, 748 F.3d 1222, 78 ERC 1757, 2014 BL 103957 (D.C. Cir. 2014).The environmental groups alleged the EPA ignored Clean Air Act stringency requirements and did not consider setting emissions standards that reflected what had been achieved at the best-performing sources nationwide, which would have led to tougher standards.The three-judge panel that heard arguments in the chromium electroplating litigation appeared to be disinclined to overturn past legal precedent that the EPA is not obligated to recalculate maximum achievable control technology floors, a minimum standard that facilities in a source category must meet, when the agency reviews and revises air toxics standards (233 DEN A-14, 12/4/14).

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In Broad ESPS Legal Defense, McCarthy Downplays 'Narrow' Mercury Ruling

Jul 8, 2015 | Inside EPA

By Lee Logan

EPA Administrator Gina McCarthy is rejecting critics' claims that the Supreme Court's recent ruling remanding the agency's mercury rule for power plants will bolster future legal challenges to its forthcoming greenhouse gas (GHG) rule for the power sector, arguing the two rules are authorized by different sections of the Clean Air Act.
“Making a connection between the mercury and air toxics standards (MATS) decision and the Clean Power Plan is comparing apples and oranges. Last week's ruling will not affect our efforts,” McCarthy said during July 7 remarks at an event hosted by the Christian Science Monitor in Washington, D.C.
The remarks come as part of a broader defense of the legal foundation of the GHG rule, a critical piece of this year's international climate negotiations, with McCarthy downplaying state resistance to the existing source performance standards (ESPS) and arguing that it will be very difficult for a future administration to undo the regulation.
“The court seemed to go out of its way to narrow this decision, in so many ways,” she said.
She said the June 29 ruling in Michigan v. EPA -- which found the agency unreasonably declined to address costs when making a threshold finding that it is “appropriate and necessary” to regulate mercury emissions from the power sector -- concerns a provision that applies only to Clean Air Act section 112 air toxics rules for the sector.
She noted that air act section 111, which gives EPA authority for the ESPS, requires the agency to consider costs, and that it has done so from the outset of the rulemaking.
Further, she said the ruling did not implicate any other provisions in MATS, and that the high court was not “sending a signal on how to do cost” reviews.
“They really went out of their way” to issue a narrow ruling, she said. “Had they not, it could've had much broader implications. It simply didn't. And I think they did that for good reason.”
Because the ESPS will be so critical to the United States meeting its international pledge to cut GHG emissions by 26-28 percent by 2025, the Obama administration has been stressing that the rule is on sound legal footing and will be implemented at a similar level of “ambition” as the proposed rule.
As part of that effort, McCarthy downplayed initial resistance to the rule from some Republican governors, including Indiana's Mike Pence, Oklahoma's Mary Fallin and Wisconsin's Scott Walker. To varying degrees, they have pledged not to comply with the ESPS if the agency does not make significant changes to the final version.
Although some governors “have sent signals [opposing the rule], some stronger than others,” McCarthy said, “it's, to me, very limited at this point.”
She added: “While there may be governors that are making statements, those statements are not filtering down to the very tables that continue to be set, to look at how states are operating and how states might think about how to design a plan that's effective for them, and making sure their reliability and affordability is maintained.”
She argued that “some of the states that are vocal are already benefiting from some of the solutions that we'd want them to have on the table for a Clean Power Plan.” Further, McCarthy said EPA will have a “backstop federal plan that we can call upon if need be, in hopefully very small circumstances when it's necessary.”
'Regulatory Action'
McCarthy also addressed regulatory uncertainty that could come from a subsequent administration in 2017 that opposes strong climate policies. While the Obama administration has committed to finalizing the ESPS before it leaves office, much of the rule's implementation will be left to the next president.
But McCarthy said it would be difficult to simply rescind the rule. “You will have to take regulatory action in order for this to be any different than how we have designed it. You cannot just simply decide, 'I'm not implementing.' You're going to have to make the case that we were wrong. And EPA will make sure that this rule is legally solid, technically accurate, and relies on science as we've always done.”
She added: “We're very confident that we not only know how to do that, but that we certainly know how to defend lawsuits. The Clean Power Plan will absolutely be litigated. Is there a single rule that I would talk about that is not going to be? So while we explain to other countries to expect litigation . . . we're actually very good about writing rules and defending them. This will be no exception.”
The administrator also reiterated EPA's stance that its rule is crafted entirely as an environmental regulation under the Clean Air Act, rather than an energy policy, and is simply building on existing changes in the power sector.
EPA is “staying in our lane” and writing a rule focused on pollution, while leaving energy choices up to the states, she said, adding that “EPA wasn't tipping its hand on energy policy issues.”
That argument could be important when determining whether the agency will receive judicial deference under the high court's Chevron precedent, which holds that courts must defer to agencies' reasonable interpretations of ambiguous statutes.
Agency critics have suggested that the justices' recent ruling in King v. Burwell -- which upheld tax subsidies in the Affordable Care Act -- may undercut EPA claims that it is entitled to judicial deference under Chevron.
“I don't think the court is going to give EPA deference in interpreting the scopes of its own powers,” Bracewell & Giuliani attorney Jeff Holmstead told Politico recently.
Holmstead was referring to the portions of the health care ruling in which the majority, led by Chief Justice John Roberts, declined to grant deference to the administration's interpretation of the statute, finding that Congress did not intend to delegate authority to the IRS when determining which consumers are eligible for subsidies under the law.
Instead, the court majority interpreted the law itself and found that the subsidies were lawful because they are consistent with the law's overall intent.
Holmstead and others say this could signal problems if EPA hopes to win Chevron deference for its interpretation of the air act, arguing that EPA is in a similar position as the IRS because it has not traditionally issued energy policy. “One thing we've learned from Burwell, that's probably something that the court will do on its own,” he says.
'Extraordinary' Chevron Case
But the Natural Resources Defense Council's David Doniger in a July 6 blog post says EPA will likely receiveChevron deference when it defends its GHG rule, saying the Burwell ruling was an “extraordinary” case underChevron, while the MATS ruling was a more ordinary application of the precedent.
Because EPA is the “expert agency charged with carrying out the Clean Air Act,” he predicts that it is “very likely that courts reviewing the Clean Power Plan will accord EPA Chevron deference.”
Doniger adds that Michigan shows that EPA “can still lose” under Chevron, but that “if EPA presents a clear and persuasive argument for its statutory interpretations in the final Clean Power Plan rule, the agency will prevail.”
Regardless of any legal precedent from the Michigan ruling, EPA critics say the ruling provides a cautionary tale for why a court should stay implementation of the ESPS pending legal challenges.
That will be a major fight in the legal challenges to the ESPS, given that utilities argue they will have to make major investment decisions early in the compliance period, and those decisions cannot be changed even if the rule is later struck down in court.
In a June 29 blog post for the Cato Institute, Baker Hostetler attorney Andrew Grossman says the ruling “means utilities and their customers spent tens of billions of dollars complying with a regulation that was always unlawful. One can imagine the Court won't be eager for that to happen again.”
Grossman added that the ruling could be read as a “shot across the bow” from the Supreme Court to the U.S. Court of Appeals for the District of Columbia Circuit: “when the next billion-dollar rule comes up, and there's any legal question about EPA's authority, put the rule on hold so the courts have a chance to do their business.”

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High Court Taking Hard Look at EPA, Panelists Say

Jul 9, 2015 | BNA Daily Environment Report

By Rebecca Wilhelm

Several cases decided during the recent U.S. Supreme Court term signal that the court is committed to taking a hard look at agency action, especially in lawsuits involving ambiguous statutes with significant economic and political consequences, legal observers said July 8 during a panel discussion.This stance should make the Environmental Protection Agency take notice, since the high court has recently declined to accept the agency's interpretation of the Clean Air Act. And three other significant measures are likely headed before it, panelists said during a discussion hosted by the George Mason University School of Law's Law and Economics Center.The decision in Michigan v. EPA, 2015 BL 20716380 ERC 1577, U.S., No. 14-46, 6/29/15, demonstrates the court's unwillingness to defer to agency interpretations of ambiguous statutes when the regulation at issue has high economic costs and is derived from broad exercises of agency authority, panelist Kirsten L. Nathanson, a partner at Crowell & Moring LLP, said.The court held 5-4 in Michigan v. EPA that the EPA should have considered compliance costs before deciding it was “appropriate and necessary” to regulate hazardous air pollution from power plants, even though the Clean Air Act does not expressly require cost considerations (125 DEN A-1, 6/30/15).“The court refused to defer to the [EPA's] interpretation of an ambiguous statutory term,” Nathanson said. “This is the first time that the court has held that the EPA must consider costs at a point when the statute is silent on that issue.”EPA ‘Should Be Troubled.'Nathanson said that the “EPA should be troubled by what we've seen from the Supreme Court,” because for two consecutive terms the court has declined to defer to the agency's interpretation of an ambiguous statute.Last term in Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 78 ERC 1585, 2014 BL 172973 (2014), the court rejected the EPA's interpretation of “any air pollutant” under the Clean Air Act. The court held that major stationary sources that require Clean Air Act permits for conventional pollutants must include controls for greenhouse gas emissions, but that greenhouse gases alone don't trigger requirements to obtain permits (121 DEN A-1, 6/24/14).“We have five justices, who now two years in a row are committed to taking a hard look at agency rule-makings that interpret ambiguous statutory provisions that involve high economic costs and broad exercises of federal power,” Nathanson said.Approach to Statutory ConstructionPanelist Richard O. Faulk, senior director of the Law and Economics Center's Initiative for Energy and the Environment, said that the court's focus on statutory construction heralds a return to its traditional role of deciding what the law means. For example, he said that the court examined the relevant statutory context in Michigan v. EPA and another high-profile case, King v. Burwell, 2015 BL 202885, U.S., No. 14-114, 6/25/15, to effectuate what Congress actually intended instead of strictly abiding by ambiguous statutory language.The court didn't defer to the Internal Revenue Service's interpretation of the Affordable Care Act but rather took a “whole cloth approach” in Burwell, holding that the act extends tax credits to individuals who purchase health insurance on an exchange created by the federal government, Faulk said.In future cases the EPA can expect “less deference for sure [and] more emphasis on statutory construction,” Faulk said.EPA Rule-Making Could Be AffectedThe court's decisions in Michigan and Burwell are “not good news for the EPA,” said panelist Roger R. Martella Jr., a partner at Sidley Austin LLP. He pointed to three “legacy rule-makings … in the pipeline” that might be affected by these recent decisions.The EPA's Clean Power Plan, ozone national ambient air quality standards and Clean Water Rule “will all go through judicial review” and “are probably headed to the Supreme Court,” Martella said.Judicial review of the three rule-makings at the district and appellate levels will likely be affected by the Supreme Court's approach in Michigan and Burwell, Martella said. Lower courts might also be unwilling to defer to the EPA's statutory interpretations, he said.“There's no doubt that all three of these rule-makings … are issues of economic and political significance,” Martella said. “They might be the three most important, economically and politically relevant rules not only in this administration but in the long history of the EPA.”

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Manufacturers Target Ozone, Fracking Amendments

Jul 8, 2015 | Politico Pro - Whiteboard

By Darren Goode

The National Association of Manufacturers is urging House lawmakers to maintain language in the Interior-EPA appropriations bill blocking Obama administration regulations on ozone and hydraulic fracturing.

NAM sent key-vote letters today highlighting Democratic amendments that would strip the ozone and fracking policy riders from the fiscal 2016 spending bill. The influential trade association said it may include members’ amendment votes on its annual scorecard.

Maryland Democrat Donna Edwards offered an amendment to remove language that blocks funding for new EPA ozone restrictions unless at least 85 percent counties can meet current restrictions finalized in 2008. And Michigan Democrat Brenda Lawrence introduced an amendment to strip language blocking funding for Bureau of Land Management fracking controls.

Both amendments are expected to fail, and the underlying spending bill is expected to pass this afternoon.

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House Agriculture Chairman: No 'Downside' to Crude Oil Exports

Jul 8, 2015 | The Hill - Briefing Room

By Lauren Aguirre

House Agriculture Committee Chairman Michael Conaway (R-Texas) is pushing to allow U.S. crude oil exports, saying he finds no "downside" to lifting the decades old ban.
"Crude oil is the only commodity that we can't export, yet we import unlimited quantities," Conaway said at a hearing Wednesday before his committee. "This is important on every level and I don't see any downside."
Energy executives testified in favor of lifting the ban and said refineries are ready to handle the lighter crude produced domestically. Lifting the export ban would encourage production.
"A lot of refineries today are at risk because they can't get light, sweet crude," said Harold Hamm, chairman and chief executive officer of Continental Energy, an Oklahoma-based company.
"Most of the crude oil would go to South Korea, western Europe and South America," he added. "I don’t see a lot of trade happening in China."
Hamm also suggested that domestic refiners are under threat from new EPA regulations on air quality. Increased demand for oil both domestically and worldwide would help them turn around, he said.
"Lifting the ban would certainly help to quickly turn it around, but working with the EPA to build new refineries needs to be done," Hamm said.
Federal officials, though, cautioned that lifting the export ban could have negative impacts on the environment.
"This could lead to incrementally more injuries or environmental damage," said Frank Rusco, director for natural resources and environment at the Government Accountability Office.
He cited harm to surface groundwater quality, increased greenhouse gas emissions and the increased risk of spills from transporting crude oil.
But Rusco acknowledged economic benefits as well.
"It will likely cause consumer prices to fall or remain unchanged," Rusco said. "It should stimulate economic activity, especially in rural areas."
"Production would increase, gas prices would be lower, and it would enhance free trade," added Texas Railroad Commission Chairman David Porter.
In written testimony, he cited an energy study that found that "for every energy job created in oil production, three jobs are created in the supply chain and six more in the broader economy."

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Unions Back Oil Export Bill, Break with AFL-CIO

Jul 8, 2015 | The Hill - E2 Wire

By Timothy Cama

Two labor unions came out Wednesday in support of a House bill to end the ban on oil exports, breaking with the country’s largest union federation.
The Laborers’ International Union of North America (LIUNA) and the International Union of Operating Engineers signed onto a letter with 20 business and industry groups supporting Rep. Joe Barton’s (R-Texas) bill to open the United States’s crude oil market to the world for the first time in 40 years.
“Opening global markets to U.S. producers will support added domestic production that will create hundreds of thousands of new jobs and contribute tens of billions of GDP dollars in the supply chain within the next few years,” the groups wrote to leaders of the House Energy and Commerce Committee.
“At the same time, we will put downward pressure on domestic fuel prices, while we provide our allies and trading partners with an alternative to sourcing energy from unfriendly and unstable sources,” they said.
The unions, along with the groups joining them on the letter, are involved in the shale oil industry, which stands to benefit from new, international oil demand.
The position expressed by LIUNA and the Operating Engineers union sets them apart from the AFL-CIO and the United Steelworkers, the main union for oil refinery employees.
They both declared early in 2014 that they would oppose lifting the ban, under the belief that it would increase oil prices for refiners and threaten jobs in that industry.
“Lifting the ban would not only prove detrimental to the jobs of the men and women employed at U.S. refineries, but also to the communities that rely on the tax base generated from these wages,” the Steelworkers wrote in a joint letter with the Sierra Club in June.
LIUNA and the Operating Engineers are members of the AFL-CIO.
The endorsement from the two unions also puts them at odds with most congressional Democrats.
Both unions also clashed with Democrats over the Keystone XL oil pipeline, when the unions endorsed a Republican-backed bill to bypass President Obama and approve the project.

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Pro-Keystone Unions Back Barton’s Crude Exports Bill

Jul 8, 2015 | Politico Pro - Whiteboard

By Elana Schor

Two of the top unions endorsing the Keystone XL pipeline came out in favor today of Rep. Joe Barton’s legislation that would end the decades-old crude export ban.

“Opening global markets to U.S. producers will support added domestic production that will create hundreds of thousands of new jobs and contribute tens of billions of GDP dollars in the supply chain within the next few years,” the International Union of Operating Engineers and the Laborers International Union of North America wrote, alongside 20 other industrial and construction groups, in a letter to leaders of the House Energy and Commerce Committee.

The Engineers and Laborers’ support for unfettered crude exports could provide Barton and his allies in the GOP with new political momentum as they seek more bipartisan cosponsors for a legislative end to the ban. The energy committee is planning a hearing on Barton’s bill tomorrow.

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Farmers Hurt by Oil Export Ban, Conaway Says

Jul 9, 2015 | BNA Daily Environment Report

By Ari Natter

The 40-year-old ban on the export of crude oil is hurting farmers too, the chairman of the House Agriculture Committee said July 8, during a hearing in which he tied the trade restriction to suffering rural communities.Rep. Michael Conaway (R-Texas), the author of legislation (H.R. 2369) that would end the ban, said the 1975 law is “taking a bite” out of the rural economy, which spends nearly 18 percent of total farm income on energy inputs.“We have heard repeatedly in this committee about the importance of agricultural exports to the rural economy,” he said in his opening remarks. “The same logic applies when it comes to exporting crude oil.”Texas would see more than $5 billion alone in income by 2020 if the ban were repealed, Conaway said.Limited Domestic MarketThe hearing featured witnesses who support changing the law such as Harold Hamm, the chairman and chief executive officer of Oklahoma City-based oil producer Continental Resources Inc.“We have been forced to discount our oil process into a limited domestic market, while the refiners sell at world market prices,” Hamm testified. “As a result, refiner profits have soared 500 percent at no benefit to U.S. consumers or employment.”Frank Rusco, director of the Government Accountability Office's Natural Resources and Environment Division, said in testimony summarizing previous studies that removing the trade restrictions would increase the price of U.S. oil by $2 to $8 a barrel.Lifting the trade prohibition, which was put in place in the wake of the Arab oil embargo, also would lower domestic gasoline prices by between 1.5 cents to 13 cents a gallon, Rusco said.Additional Hearing PlannedOpponents of changing the law include environmental groups and a coalition of refiners made up of Alon USA, Monroe Energy, PBF Energy and Philadelphia Energy Solutions.“I think there was very little evidence presented, other than unsupported statements, that lifting the ban will help the rural economy overall,” Jay Hauck, a spokesman for the group, said in an e-mail to Bloomberg BNA.The House Energy and Commerce Subcommittee on Energy and Power is scheduled to hold a hearing July 9 on separate legislation (H.R. 702) from Rep. Joe Barton (R-Texas) that also would lift the export ban.Witnesses scheduled to testify include Czech Ambassador to the U.S. Petr Gandalovic; Mark Kreinbihl, group president of the Gorman-Rupp Co.; Kirk Lippold, president of Lippold Strategies LLC; and W. David Montgomery, senior vice president of NERA Economic Consulting.

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House Oversight Panel Subpoenas Keystone XL Documents

Jul 9, 2015 | BNA Daily Environment Report

By Ari Natter

The House Oversight and Government Reform Committee issued a subpoena to the State Department seeking information related to TransCanada Corp.’s Keystone XL pipeline, the committee announced July 8.Specifically, the committee is seeking all reports, recommendations, letters and comments received by the State Department in response to interagency comment on whether the department should issue a permit for the pipeline.“Congress has a right to review these documents,” the committee said. “The Department has been uncooperative in the Committee's efforts to conduct oversight of the Keystone XL permitting process and has shown an unwillingness to recognize the Committee's legitimate interest in obtaining information.”The State Department earlier requested comment from the Environmental Protection Agency, Energy Department and other federal agencies about whether the pipeline was in the nation's interest, but it refused to make those documents public.“In light of this, a subpoena is necessary and appropriate,” Rep. Jason Chaffetz (R-Utah), the committee chair, said in a statement. “We will not be stymied in carrying out our responsibility to the American people to effectively oversee the Executive Branch.”State Department approval of the $8 billion project is required because the 1,700-mile pipeline would cross an international border.In February, President Barack Obama vetoed legislation (S. 1) that would have authorized the project and circumvented ongoing administration review. The pipeline, which would carry crude from the Alberta oil sands region to refineries in Texas, has become a symbol of the administration's commitment to addressing climate change (37 DEN A-1, 2/25/15).The State Department did not respond to a request for comment.

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Oversight Panel Subpoenas State Dept. for Pipeline Documents

Jul 9, 2015 | E&E Daily

By Manuel Quiñones

The House Oversight and Government Reform Committee subpoenaed the State Department yesterday to turn over documents related to its review of the Keystone XL oil pipeline.
At issue are letters from different federal agencies expressing their views on whether it's in the national interest to allow KXL to cross from Canada into the United States. The administration considers the documents part of its deliberation process and, therefore, not open to congressional scrutiny.
But committee Chairman Jason Chaffetz (R-Utah) said yesterday: "Congress has a right to review these documents. The department has been uncooperative in the committee's efforts to conduct oversight of the Keystone XL permitting process and has shown an unwillingness to recognize the committee's legitimate interest in obtaining information."
He added: "In light of this, a subpoena is necessary and appropriate. We will not be stymied in carrying out our responsibility to the American people to effectively oversee the executive branch."
In March, Julia Frifield, assistant secretary of State for legislative affairs, told lawmakers that "disclosure of this information would raise separation-of-powers concerns. Accordingly, the State Department is not in a position to provide the requested documents to the committee at this time."
For months, State and the administration have declined to offer any substantive comment on where the review of KXL's permit application stands.

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Oversight Republicans Subpoena Kerry for Keystone Documents

Jul 8, 2015 | The Hill - E2 Wire

By Devin Henry

House Republicans have subpoenaed Secretary of State John Kerry for documents related to the Obama administration’s review of the Keystone XL pipeline.
“Congress has a right to review these documents,” Rep. Jason Chaffetz (R-Utah), the chairman of the House Oversight and Government Reform Committee, said Wednesday.
“The Department has been uncooperative in the committee’s efforts to conduct oversight of the Keystone XL permitting process and has shown an unwillingness to recognize the committee’s legitimate interest in obtaining information. In light of this, a subpoena is necessary and appropriate.”
Committee Republicans have twice asked the State Department to provide it with all “reports, recommendations, letters and comments” related to their review of the pipeline. In a June letter, Chaffetz said the department has not been willing to give the committee those documents or to allow members to review them.
Other agencies, such as the Environmental Protection Agency (EPA), had posted some of their project documents online for inspection, but the State Department, which is currently reviewing the pipeline, “has refused to make even a single page available to the Committee,” Chaffetz wrote with Rep. Cynthia Lummis (R-Wyo.), chairwoman of Oversight’s Interior Department subcommittee, in June.
“We will not be stymied in carrying out our responsibility to the American people to effectively oversee the executive branch,” Chaffetz said Wednesday.
A State Department spokesperson did not immediately return a request for comment.
The subpoena opens a new front in the fight between congressional Republicans and the Obama administration over the pipeline project. Lawmakers passed a bill earlier this year authorizing the pipeline, but Obama vetoed it, citing the State Department’s review.
The Obama administration’s review of the pipeline, which would transport oil from the Alberta oil sands the Gulf of Mexico, is nearly seven years old. The State Department is considering comments on the proposal now, and Kerry will eventually make a recommendation on the project to Obama.

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Can Clinton Lead the Keystone Army?

Jul 8, 2015 | PoliticoPro

By Elana Schor

An army of liberal green activists has yet to coalesce around a Democratic presidential candidate, and Bernie Sanders and Martin O’Malley are fighting to win them over.
Hillary Clinton’s two challengers from the left are each targeting the grassroots greens who, often upstaging the mainstream environmental groups, rallied throngs of opponents against the Keystone XL pipeline — turning an obscure regulatory fight into a symbol of America’s addiction to fossil fuels.
Many of those activists are without a standard-bearer in the Democratic field, and are still suspicious of Clinton because of her refusal to rule out the Keystone project. And they’ve demonstrated the capacity to put supporters in the streets, including more than 1,100 anti-Keystone protesters who went to jail after White House sit-ins four years ago.
That’s offering an opening to the progressive Sanders, who has emerged as Clinton’s top rival in the polls, and O’Malley, whose once-promising campaign has yet to gain traction. Each has rolled out aggressive plans to fight climate change that are well to the left of anything Clinton has offered: Sanders is pushing a carbon tax, for example, while O’Malley pledges to wean the U.S. electricity system entirely off fossil fuels by 2050.
Sanders even launched his candidacy at an event with fellow Vermonter Bill McKibben, the activist who rose to prominence by leading the anti-Keystone crusade as part of the campaign to fight climate change.
There’s little chance that major environmental groups like the Sierra Club or the League of Conservation Voters will endorse a candidate anytime soon — Clinton remains the prohibitive Democratic front-runner, and she too is pledging action on climate change, in contrast to the GOP White House hopefuls who are almost uniformly opposed. Still, Sanders’ and O’Malley’s efforts to display their green bona fides raise questions that could force Clinton to adopt a more aggressively liberal posture on issues ranging from fracking to Arctic offshore drilling.
“[I]t is a badge of honor with voters, particularly voters most likely to participate in Democratic primaries and caucuses, for a candidate to show that she or he is willing to take on big oil, the Koch brothers, other carbon polluters, and the climate change deniers,” said Democratic pollster Geoff Garin, who helped lead Clinton’s strategy team during the final months of her 2008 campaign.
The “growing number of people who are willing to become politically engaged and mobilize around climate and clean energy issues,” he added, “can provide the kind of grassroots people power that campaigns depend on.”
And as with the surge in Sanders’ support from union members, despite AFL-CIO chief Richard Trumka’s attempts to tamp it down, leaders of mainstream environmental groups will have a hard time reining in the passions of their activists and volunteers who have followed McKibben to get arrested at anti-Keystone rallies.
A source close to the Sanders camp says the candidate’s appeal among the rank-and-file union members is sign of what’s to come in the green movement.
“You’re going to see the same thing happen in the environmental community — Sanders is going to attract tremendous support among grassroots activists because he’s putting the issues front and center,” the source said.
Not to be outdone, O’Malley’s campaign has already begun courting environmental groups on the national, state and local-level efforts that will ramp up even further in the coming weeks, spokeswoman Haley Morris said.
O’Malley spent last weekend in Iowa on a campaign push that focused on his green proposals, such as his call to transition U.S. utilities to clean energy sources and shift tax incentives from fossil fuels to renewable energy. He outlined the plan in a Des Moines Register column published before his swing through the state.
“We need to hear from all of the candidates on where they stand — not just that this should be a priority, but what their specifics are, what their plan is to get it done,” the O’Malley camp’s Morris said.
Politically engaged environmental activists say Clinton has yet to prove herself. One example came when 350 Action, an affiliate of the environmental group founded by McKibben, joined the liberal magazine The Nation in asking candidates to swear off campaign money from the fossil-fuel industry: Sanders signed on early, and O’Malley followed suit Tuesday. But “Hillary Clinton, like the 14 Republican candidates contacted, did not reply” to the request, the magazine wrote.
“Broadly speaking, our movement is looking for a candidate who can take us off fossil fuels and do what it takes to avoid catastrophic global warming,” said 350 spokesman Karthik Ganapathy. “Hillary Clinton needs to do a lot to show us that’s her.”
Friends of the Earth Action spokesman Ben Schreiber said green activists can take inspiration from the liberal resistance led by Sen. Elizabeth Warren (D-Mass.) that recently prodded Clinton to move left on trade. “It’s imperative that the environmental community force her to flesh out her priorities” on climate change, he said.
Still, the anti-Keystone activists represent only a small slice of the Democratic electorate, and they aren’t likely to form a core base for either Sanders or O’Malley to mount a major challenge for the nomination. And Clinton may have less to prove to mainstream Democrats, whom polls show view climate change as a growing priority but still only one of many issues they care about.
Climate has “become a much more potent issue for Democratic voters than in the past,” Democratic former energy secretary and New Mexico Gov. Bill Richardson said in an interview. And it’s becoming “a base vote for Democrats,” he added. “But is it a single-issue, decisive vote? Not yet.”
Richardson warned Sanders and O’Malley that Clinton’s “vulnerability” on climate change, fracking and clean energy “doesn’t compare with” the potency of the Iraq War during the 2008 presidential race, when he — and then-Sen. Barack Obama — slammed her vote to authorize military force.
Democratic pollster and consultant Mark Mellman said global warming is an important issue for the party’s voters, but that it remains one of many issues where Clinton’s foes seek to exploit “hair’s-breadth differences, from a policy point of view, among these candidates.”
Clinton did try to appeal to the green wing of the party with her June campaign kick-off speech, in which she mocked Republicans who deny climate science and called for a shift to a clean-energy economy.
But beyond her call to impose additional fees and royalties on fossil-fuel extraction, she hasn’t proposed concrete plans, although Clinton campaign spokesman Ian Sams said there would be more to come.
“Tackling climate change will be a top priority for Hillary Clinton in her campaign,” Sams said by email, describing her campaign launch remarks as a first step in outlining “her ideas for how America can lead the global fight against climate change by becoming the clean energy superpower of the 21st Century, through developing renewable power and building cleaner power plants.
At stake are not just the young liberals who turned out in droves for climate marches galvanized by Keystone. Big money is also at play from newly prominent donors like the billionaire Tom Steyer and his green-minded, deep-pocketed network of allies.
Steyer held a fundraiser for Clinton’s campaign in May, but he has yet to formally endorse a White House candidate after rocketing to prominence by spending $74 million in an attempt to help elect climate-focused Democrats during the 2014 midterms. His NextGen Climate super PAC drew environmentalists to O’Malley by publicly praising the candidate’s climate platform, which emerged on the same day as Pope Francis’ June encyclical on the environment.
Steyer, who’s expected to spend big on the 2016 elections, appeared to redouble his demands after Obama announced last week that the administration was setting a goal of getting 20 percent of the nation’s electricity from renewable sources. White House contenders, Steyer said, must “put forward plans that build upon — and extend — President Obama’s bold leadership on clean energy, set even more ambitious targets, and create the more prosperous future our kids deserve.”
Sanders and O’Malley are rolling out detailed proposals to slash carbon emissions and transition the U.S. economy to run on wind and solar power instead of coal and oil, challenging Clinton to keep up.
At his campaign launch in May featuring 350’s McKibben, Sanders described climate change as a “planetary crisis” and explicitly called for a “tax on carbon” to address it.
“The environmental community has, for the first time, a serious presidential candidate who’s made climate change fundamental to their candidacy,” Mark Longabaugh, a senior Sanders campaign adviser, said in a recent interview.
Climate change and the environment still tend to rank lower than top-tier issues like jobs and the economy among voters, but there is evidence that it is rising in prominence — and that it could be a particularly potent issue for the eventual Democratic nominee.
Nearly six in 10 voters told The Washington Post in March that they want “the next president to be someone who favors government action to address climate change,” with 97 percent of those people describing the issue as important to them. Among opponents of climate action, nearly a third said the issue was “not so important” to them. In an April poll for The Wall Street Journal and NBC News, climate change ranked third on a list of issues Democrats said was their top concern, behind jobs and health care, but beating out issues like terrorism and immigration.
By contrast, climate change ranked dead last among issues Republicans said they were concerned about.

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Interior Accepts Controversial Colo. Ruling on Oversight

Jul 9, 2015 | E&E News PM

By Manuel Quiñones

The Obama administration has decided not to appeal a Colorado federal judge's ruling that's forcing the Interior Department to boost scrutiny of coal mines on federal land, including potential climate impacts.
Colorado U.S. District Judge R. Brooke Jackson ruled in May that the federal Office of Surface Mining, Reclamation and Enforcement had failed to conduct proper National Environmental Policy Act scrutiny before approving mine plans for Trapper Mining Inc. and Colowyo Coal Co. LP.
Even though states with their own strip mine oversight programs are in charge of permitting mines, OSMRE gets to approve mine plans involving federal coal.
Jackson did not order the mines shut down, giving the federal agency 120 days to address the problems he identified. Still, communities and pro-coal lawmakers have expressed concern about their future and urged the administration to appeal (Greenwire, May 19).
Parties had 60 days to appeal, which ran out yesterday, according to plaintiff WildEarth Guardians. Only Colowyo and Trapper filed papers to fight the ruling by the deadline.
"This is a milestone and we sincerely praise the agency for its willingness to finally lead the charge to confront the climate impacts of coal mining," said group climate and energy advocate Jeremy Nichols.
Last year, the same judge scrapped coal mine lease modification plans, citing improper scrutiny of potential climate impacts. Similar cases by WildEarth Guardians against OSMRE mine plan approvals are pending in Montana and New Mexico.

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Judges Appear Skeptical Of Suit Over Texas 'Flexible' Air Permits Program

Jul 8, 2015 | Inside EPA

By Stuart Parker

Appellate judges at July 7 oral arguments appeared skeptical of environmentalists' suit claiming that Texas' EPA-approved “flexible” Clean Air Act permit program could allow unlawful circumvention of federal new source review (NSR) air permit requirements, saying advocates failed to prove injury under the program to justify the challenge.
According to a recording of arguments -- which did not identify which U.S. Court of Appeals for the 5th Circuit judge was talking -- the panel hearing the case, Environmental Integrity Project (EIP), et al. v. EPA, also noted that the agency and the state are both defending the program. “When you see the EPA and Texas at the same counsel table, you know you have got your work cut out for you,” one judge told EIP's Executive Director Eric Schaeffer.
Judges W. Eugene Davis, Patrick Higginbotham and E. Grady Jolly are overseeing the suit, which marks the latest step in environmentalists' long-running campaign to oppose what they see as lax permits.
One judge called the issue one of “legal mumbo jumbo,” telling environmentalists, “you have got to get it down where the cows can get to it,” and struggling to understand what injury advocates have suffered.
Environmentalists claim that the flexible permits program could lead to unlawfully weak air permits in the future that will lead to air pollution increases, which in turn could harm public health. However, a judge said during arguments, “still you have not been aggrieved by pollution,” adding, “you are not saying the air has become more polluted” as a result of the state's flexible permit program approved by the agency.
The flexible permits allow industrial pollution sources to increase their emissions within an overall plantwide cap, without having to ask for a permit modification. The 5th Circuit in 2012 rejected similar arguments against an earlier iteration of the program, in a case brought by EPA that stemmed from a decision to disapprove the program by then-EPA Region 6 Administrator Al Armendariz, who has since been replaced by Ron Curry.
EPA previously argued in that case, State of Texas v. EPA, that the Texas regulations as then written would allow evasion of NSR permit review by “major” sources of air pollution -- those emitting more than 100 tons per year (tpy) or 250 tpy, depending on the pollutant. The court agreed with Texas, however, that the flexible permit program applies explicitly to “minor” pollution sources emitting below these thresholds, and found in favor of Texas.
Revised Program
EPA and the Texas Commission on Environmental Quality (TCEQ) then worked on changes to the program, which satisfied EPA that flexible permits would not produce Clean Air Act violations. The agency therefore approved the modified program, after disapproving its predecessor years after the original program went into effect.
EIP then sued over that approval and is urging the 5th Circuit to agree with its claim that TCEQ's program could allow some facilities to obtain permits that unlawfully evade federal air law NSR requirements. Companies subject to NSR could face stricter emissions control requirements in their federal air permits.
At oral arguments, Schaeffer said the revised program still does not guarantee that major pollution sources will not avoid NSR. This is in part because the flexible permit program sets caps on maximum allowable emissions, while NSR is triggered when actual emissions exceed the regulatory thresholds. Allowable emissions caps under flexible permits can be higher than the major source NSR thresholds, meaning that facilities could increase emissions under their flexible permit and exceed the NSR thresholds without triggering NSR permit review, environmentalists argue.
It is this disparity between allowable emissions and actual emissions that “creates the conflict” between flexible permits and NSR, Schaeffer said. Asked by a judge “don't you need a new permit when you propose to do a major modification” under NSR, Schaeffer said “we argue that you absolutely do, but it is not in the flexible permit program.”
Schaeffer suggested that the language establishing the flexible permit program under Texas law could be modified by adding an explicit requirement for sources to comply with major source NSR.
Judges asked Schaeffer whether he could point to examples of where the flexible permit program has resulted in plants violating NSR. In response, he cited three examples of facilities located in Texas with flexible permits that obtained their major source NSR permits only toward the end of construction, not before construction as required by the air law. Application of the NSR procedure is “mechanical,” Schaeffer said.
Legal Consistency
Department of Justice attorney Alan Greenberg, arguing for EPA, insisted that the regulatory text of the flexible permits program precludes evasion of major source NSR, citing the earlier decision of the court and Texas' assertions about the flexible permit program's consistency with the federal air law.
When pressed on the examples of facilities with flexible permits that obtained major source NSR permits only after construction started, cited by environmentalists, Greenberg said those permits were issued under the previous version of the flexible permit program. That program began in 1994, and “there may have been some issues at that point,” Greenberg said, stressing that he did not concede that there actually had been such issues.
To the extent that there is any ambiguity over the applicability of major source NSR, the most stringent regulatory requirement governs companies' behavior, Greenberg said. “Compliance with major NSR is a condition of the flexible permit program,” he added.
Priscilla Marie Hubenak, representing the state of Texas, made similar points to the judges. For example, she disagreed with environmentalists' assertion that a facility could increase its emissions under a flexible permit and evade major source NSR. “That is not the way it works,” she said.
With respect to actual unlawful emissions rises resulting from the flexible permits program, Hubenak said, “at the time of the previous case. . . . EPA could not cite one instance where there had been evasion of major NSR.”
One of the judges also said that EIP's lawsuit appeared to reiterate complaints that were resolved in the earlierState of Texas case and suggested the new suit “sounds like it's nit-picking the last decision.”

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California Governor Presses Canada to Cut Emissions

Jul 9, 2015 | BNA Daily Environment Report

By Allison McNeely and Josh Wingrove

The trio of leaders behind North America's largest cap-and-trade market want Canadian Prime Minister Stephen Harper and other global leaders to do more to cut emissions and combat climate change.California Gov. Jerry Brown (D) joined Ontario Premier Kathleen Wynne and Quebec Premier Philippe Couillard in taking aim Jan. 8 at Canada's federal government for inaction on the issue, specifically calling on Harper to change his approach.“He ought to be re-examining what he's doing. Canada has a long way to go, as does the United States, as does everybody,” Brown said during a press conference at a Climate Summit of the Americas in Toronto hosted by Wynne.Earlier this year, Ontario announced its plan to join the emissions cap-and-trade system initiated by Quebec and California. “Good climate policy is good economic policy. The two can't be separated,” said Wynne, a Liberal who spars often with Harper's Conservatives. “We need the federal government to hear this message.”Couillard announced July 8 that Quebec would become the third province to sign on to California's Under 2 MOU, aimed at limiting the world's temperature increase to two degrees Celsius and limiting greenhouse gas emissions to 2 tons per capita.The Quebec premier, also a Liberal, said provinces were “filling the void” in Canada on tackling climate change issues, while Brown said more work needs to be done to build a consensus for bold action.‘Not About Pointing Fingers.'“It's not about pointing fingers because we'd have to point to ourselves,” the California governor said. “We've got a lot to do, but some people aren't even on board to know that. So I would say, ‘Get on board. Let's get going. Let's work together.' ”Canada is frequently criticized for inaction on climate issues. The country isn't on pace to meet its previous 2020 climate goal, and government figures show emissions will grow, not shrink, over the next five years.In advance of the United Nations climate conference in Paris later this year, the Canadian government said it would reduce emissions by 30 percent, from 2005 levels, by 2030, but it offered no indication of how it will achieve that.A spokesman for Environment Minister Leona Aglukkaq, who didn't attend the Toronto summit, defended the federal government and criticized carbon-pricing plans as economically burdensome. “Under the strong leadership of Prime Minister Harper, we will continue to take real action to reduce emissions while keeping taxes low and growing our economy,” the spokesman, Ted Laking, said in an e-mail.Fraction of World's EmissionsIn her opening address to the conference, Wynne criticized a view regularly expressed by Harper's government—that Canada has only a fraction of the world's emissions and therefore can't act alone.The Ontario premier said Canada and other developed nations have a moral obligation to cut emissions after benefiting from a high-carbon economy.“There are people who will say Canada's a small jurisdiction, we're a small number of people, the impact we will have is not as great,” Wynne said. “But the fact is the people in this country believe we have a responsibility to do everything we can do. It is in our best interest.”California is the most populous U.S. state, while Ontario and Quebec are Canada's two most populous provinces. The leaders are attending the summit along with former U.S. Vice President Al Gore, former Mexican President Felipe Calderon and others.Reject ‘False Choice.’Couillard told the conference to reject the “false choice” between growth and putting a price on carbon and that the world is “seeing the beginning of the end of the fossil fuel era.” He invited other North and South American leaders to join them in putting a price on carbon emissions.“Make the right choice and use carbon pricing as a path to economic growth and job creation,” the Quebec premier said.Ontario has not announced how it will structure its cap-and-trade system, or what tax revenue it is expected to generate for the government.Brown has made climate change a centerpiece of his fourth term in office. In April, he ordered greenhouse gas reductions of 40 percent below 1990 levels by 2030, the most ambitious statewide effort to combat climate change in the U.S.In May, Brown signed a pact with 11 U.S. and international states, including Catalonia in Spain and Mexico's Jalisco, to curtail temperature increases from carbon pollution.Ontario has announced its own similar 2030 target, planning to eliminate 37 percent of emissions, from 1990 levels, by that deadline.With assistance from Alison Vekshin in San Francisco.

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California Criteria Require Monitoring Near Well Sites

Jul 9, 2015 | BNA Daily Environment Report

By Stephen Siciliano

California's State Water Resources Control Board has adopted “model criteria” for monitoring groundwater in areas where hydraulic fracturing is being used to tap oil and gas reserves deep underground.The criteria prescribe methods and requirements for the use of water to stimulate wells to extract oil and gas.The board said in a press statement that the criteria will result in greater transparency and public access to information about the health of groundwater near “well stimulation” operations for the first time.“These rules will enhance our ability to protect groundwater by requiring comprehensive monitoring of groundwater near oil and gas operations, the strictest monitoring criteria in the nation,” Felicia Marcus, chairwoman of the State Water Resources Control Board, said in the July 7 statement.The goal, according to Marcus, is to identify and trace the causes of groundwater threats and require responsible parties to mitigate the pollution.In 2013, Gov. Jerry Brown (D) signed S.B. 4 directing the state water board to develop the model criteria requiring oil and gas operators to submit groundwater monitoring plans for approval before fracking can begin (184 DEN A-7, 9/23/13).The submitted plans will allow water board officials to assess the potential impacts associated with fracking on underground aquifers.The model criteria were based on recommendations from Lawrence Livermore National Laboratory and include monitoring and sampling methods, They identify chemicals for sampling and specify the frequency with which they should be analyzed.New fracking regulations called for under S.B. 4, requiring permits for the first time, were developed by the state Department of Conservation's Division of Oil, Gas, and Geothermal Resources and took effect July 1 (128 DEN A-10, 7/6/15).

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Obama, Democrats Discussed Climate Change at White House Gathering

Jul 8, 2015 | E&E News PM

By Jean Chemnick

President Obama discussed cooperating on climate action with Democratic senators when they visited the White House last night to bury the hatchet after June's divisive debate over fast-track trade legislation.
There was no specific agenda for the gathering, but Sen. Sheldon Whitehouse's (D-R.I.) colleagues say the senator raised the issue of warming during the exchange with Obama, who responded by asking for Democrats' help defending his initiatives.
"It's no secret what the big markers are for the remainder of the calendar year," said Sen. Brian Schatz (D-Hawaii).
The White House is currently vetting high-profile rules for carbon emissions from new, modified and existing power plants -- rules that form the centerpiece of Obama's Climate Action Plan.
"There is a lot of agreement within the caucus that this should be the top priority for all of us right now," said Sen. Chris Murphy (D-Conn.).
Also at the White House Office of Management and Budget is a rule for methane from new and modified oil and gas operations. All of these rules are expected out this summer, and Schatz noted that Republicans will likely greet them with one or more attempts at a legislative veto via the rarely used Congressional Review Act. He said he expected the White House and Senate Democrats to coordinate their strategies and messaging in defense of those rules.
"The next big moment will be the Pope's visit" in September, Schatz said. "And then we have Paris."
This year's high-stake round of U.N. climate talks in Paris is already coming under increasing scrutiny, as illustrated by this morning's Senate Environment and Public Works Committee hearing on the administration's international climate pledge. Chairman James Inhofe (R-Okla.) said the hearing should communicate to the world that the United States would not meet its commitment to cut emissions between 26 and 28 percent compared with 2005 levels by 2025. But Democrats who attended the White House gathering praised the administration.
Inhofe, a noted climate skeptic, plans to attend this year's climate talks in the French capitol, and the committee is likely to hold additional hearings on the pledge with administration officials later this year.
"The president was very, very strong about our international leadership and what he's been able to do working with the members of the Democratic caucus," said Sen. Ben Cardin (D-Md.).
Schatz said the overall purpose of last night's gathering was to get on the same page after many Democrats parted ways with the administration last month on the trade authority bill.
"Part of the subtext was that there was a disagreement within the family, and sometimes it's just important to break bread and not to flesh out every twist and turn of the previous fight but just to remind each other of our shared values and goals," he said.

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GOP Senators Demand Details of Obama's Emissions Pledge

Jul 9, 2015 | E&E Daily

By Jean Chemnick

Senate Environment and Public Works Chairman James Inhofe (R-Okla.) led colleagues in demanding yesterday that the Obama administration make available its assumptions for how the United States would meet President Obama's post-2020 climate change goals.
The letter to Obama follows up on a committee hearing yesterday at which Inhofe accused the president of misleading the world about how much the United States would do to rein in emissions in the next 10 years in hopes of securing an international climate agreement in Paris this December. Inhofe and 10 GOP colleagues note that the White House references an interagency analysis of reductions the executive branch can make using authorities it already has. They asked to see that review and for a full accounting of any additional regulations the administration expects to come down the pike to satisfy the pledge.
"While the administration is long on promises it is short on details," the senators write, noting that the State Department's own submission to the United Nations calls for "clarity, transparency, and understanding of the contribution."
At yesterday's environment panel hearing, Inhofe made it clear that part of his goal in shining a spotlight on the pledge was to prevent the United States from entering a global agreement on emissions that he said would burden the U.S. economy disproportionally (Greenwire, July 8). He also signaled that the GOP-controlled Senate would battle for some control over the agreement, even if the accord comes in a form that does not require ratification -- which is likely.
"We have serious concerns that you and your administration are rushing headlong into an agreement that would harm the American people and U.S. interests," the senators wrote, calling for "robust and transparent communication between the executive and legislative branches."
Analyses from groups as diverse as the U.S. Chamber of Commerce and the World Resources Institute agree that the United States cannot meet its promise to cut emissions between 26 and 28 percent below 2005 levels by 2025 through the implementation of policies currently in the regulatory pipeline, including U.S. EPA's Clean Power Plan. Those views were raised at yesterday's hearing, though witnesses diverged on whether that meant the White House was wrong to put forward its pledge.
The WRI analysis proposes opportunities for additional cuts from a variety of non-agricultural sources, including tougher tailpipe emissions standards for vehicles and curbs on aviation and industrial greenhouse gas emissions.
Many of these options have appeared for years in the administration's own Unified Agenda of Federal Regulations and in EPA's annual budget request to Congress. And while the Obama administration is not expected to complete greenhouse gas restrictions for aviation and refining before Obama leaves office in January 2017, the agency has gotten the ball rolling on both sets of rules -- issuing an advanced notice of proposed rulemaking for aviation last month and committing EPA to regulate refineries under the Clean Air Act five years ago in a settlement agreement with environmental litigants.
In addition to asking for the analytical underpinnings of the United States' intended nationally determined contribution (INDC) to the United Nations, Inhofe and his colleagues asked the president about his apparent strategy of negotiating an agreement that would not require Senate ratification.
They also took aim at last November's agreement between the United States and China, in which the United States made its emissions reduction pledge while China promised to peak its emissions no later than 2030. They asked at least one question that has also been circulating in environmental circles: At what final rate might China finally cap its emissions?
At yesterday's hearing, Sarah Ladislaw, director and senior fellow at the Center for Strategic & International Studies, said that while the U.S.-China accord may require the United States to cut more emissions than China, China's concurrent pledge to ramp up non-fossil fuels energy to 20 percent by 2030 "is arguably more ambitious than the corresponding U.S. goal."
"Exact comparability is difficult to assess, but both countries' cumulative targets represent an increase in ambitions from the business-as-usual future," she said.
The Republicans also ask Obama for the economic and competitiveness implications of U.S. participation in a climate agreement, arguing that administration policies to curb emissions place U.S. industry at a disadvantage.
While virtually all analyses of the U.S. INDC show the United States will fall short of its post-2020 climate pledge absent additional policies, an analysis by Environment America last month showed that counting state policies helps to close that gap. Counting state programs like the Northeast's Regional Greenhouse Gas Initiative and looking only at carbon dioxide emissions rather than other greenhouse gases, the green group estimated that the United States is on track to miss Obama's pledge by 4 to 6 percent. But EA's assessment assumed another tranche of efficiency and fuel economy standards and that EPA would finalize its Clean Power Plan as proposed -- assumptions that generally track with the WRI analysis.

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Senators Question Obama Ability to Implement Climate Plans

Jul 8, 2015 | The Hill - E2 Wire

By Devin Henry

Senators sparred Wednesday over the effectiveness and legality of President Obama’s plans to reduce greenhouse gas emissions as part of an international climate agreement later this year.
Sen. Jim Inhofe (R-Okla.) said Obama’s proposal to reduce greenhouse gas emissions by 26 to 28 percent by 2025 “is not only unrealistic, it does not add up.” He cited an analysis from a former Sierra Club climate expert who said the actions pursued by Obama — including regulations on everything from power plants to cars and trucks — would fall well short of his goal.
Inhofe also questioned whether the Obama administration has the right to enter into an international climate treaty and pursue further greenhouse gas reductions without congressional approval. He suggested a future presidential administration might be able to undo what Obama commits to accomplish during the talks.
“If they were to find a way to do something without ratification, without Congress’s input, wouldn’t the next administration be in the same position to undo anything that was done?” he said at a Senate Environment and Public Works Committee hearing Wednesday.
The United Nations is hosting a climate conference in Paris this December with the goal of reaching a landmark agreement to reduce greenhouse gas emissions worldwide.
Congressional Republicans have warned that the United States may not be able to reach the goals Obama has so far set out, and if he were to go to Congress asking for more help to do so, he wouldn’t get it.
“There is no public support or congressional support that would ratify that,” Sen. Jeff Sessions (R-Ala.) said.
But Sen. Barbara Boxer (D-Calif.) said that doesn’t matter, because the Clean Air Act gives the Obama administration the right to institute climate policies on its own.
“I believe this is achievable because the president’s climate action plan contains the tools to get it done, even without Congress,” she said. “The bottom line is, we have the Clean Air Act.”
Republicans pushed back on the Environmental Protection Agency’s ability to institute their new emissions rules under current law, noting recent Supreme Court decisions, including one last week that said the agency has gone too far in some of its rule-making.
On Tuesday, EPA Administrator Gina McCarthy said the court’s rulings were narrow and shouldn’t impact the Obama administration’s biggest emissions strategies, including the Clean Power Plan regulations on power plants due out this summer.
“The court seemed to go out of its way to narrow this decision, in so many ways,” McCarthy said. “They really made it just about this single provision that they said Congress told us really to treat this differently.”
At the hearing, Boxer tangled with a law professor over the Obama administration’s right to negotiate a climate treaty without congressional ratification. She said the administration could rely on a U.N. framework on climate change the Senate ratified in 1992.
“The Clean Air Act governs here, you have a treaty that governs here, you have a president that is carrying out the Clean Air Act,” she said.
Republicans’ star witness was David Bookbinder, who used to be the Sierra Club’s chief climate counsel but has since questioned the ability of the Obama administration’s greenhouse gas reduction strategies to meet the emissions goals.
“This is arithmetic, it’s nothing but arithmetic,” he said. “This should come as no surprise to you, and this is no surprise to anybody, we’re not the only ones who can do the numbers. I promise you, the rest of the world can look at the same regulatory measures and do the numbers just as well as we can.”
Bookbinder said that more would need to be done to reduce emissions, including proposals Republicans would oppose, including a tax on carbon or efforts to reducing emissions from the agriculture sector.
“These are the things that you can imagine,” he said. “My point is, if they really are serious about meeting their commitment, they almost have to do those things.”
The U.S.’s emissions targets are just one of those proposed by countries ahead of the U.N.’s December climate talks. Other major emitters, such as the European Union and China, had said they will work to bring down their emissions as well, and green groups have credited the Obama administration with bringing the Chinese to the negotiating table.
Despite the commitments, success at the climate conference is not guaranteed. Republicans, including Inhofe, have looked to warn that the U.S. might not be able to achieve its goals, risking the effectiveness of the overall treaty.
In the hearing Wednesday, he raised the specter of the failed 2009 U.N. climate talks in Copenhagen and suggested something similar could happen this year.
“I personally went to Copenhagen … I said no, what they’re telling you isn’t true,” Inhofe said. “We’re not going to be passing cap and trade as they told you, and this was 2009, and of course that didn’t happen.”

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House Republicans Question Homeland Security's Emphasis on Climate Change Risks

Jul 9, 2015 | BNA Daily Environment Report

By Anthony Adragna

Assertions that climate change can exacerbate security risks to the U.S. and that it should be factored into strategic planning are “outrageous” and a waste of taxpayer dollars, Republicans said at a House Homeland Security subcommittee hearing July 8.Department of Homeland Security officials told the panel that climate change was not a primary threat to the security of the nation, but said it could worsen vulnerabilities already present in critical infrastructure. The officials said responsible planning required them to consider possible impacts from climate change.Republicans are raising concerns about a $16 million budget request—out of a $41.2 billion overall request—from the administration in its fiscal year 2016 plan related to climate change.“Are the American people to believe that the increased operations by ISIS are due to hot weather or a shortage of water?” Rep. Scott Perry (R-Pa.), chairman of the Oversight and Management Efficiency subcommittee, said. “Such assertions are ridiculous and, frankly, insulting.”Officials said addressing climate change was not one of their department's core missions, but said it elevated security risks through more intense weather patterns, opening of new economic contact through melting ice and possible new international conflicts over depleted natural resources.“We do not consider climate change a core mission of the department,” Thomas Smith, acting assistant secretary within the Department of Homeland Security's Office of Policy, said. “We consider it for its impacts on those missions.”Administration Cites Security ThreatSenior military and security officials have increasingly warned through official documents and guidance that climate change could intensify global instability, disease, poverty and conflict. President Barack Obama has called it an immediate national security concern (98 DEN A-13, 5/21/15).Roy Wright, deputy associate administrator with the Federal Insurance and Mitigation Administration within the Federal Emergency Management Agency, said his agency has the responsibility to prepare for a variety of potential factors that could make responding to natural disasters more difficult. Those factors include climate change, he said.Another senior official, Robert Kolasky of the Office of Infrastructure Protection within the DHS, said climate change would “increase the range and potential intensity of risks to our infrastructure” and called preparing for its impact a “prudent investment in corporate governance.”“Our partners aren't debating the science,” Kolasky said. “They are planning for an uncertain future. ... We're not trying to predict or say exactly what will happen in the future.”Democrats on the committee slammed the committee for calling the hearing and said factoring climate change into risk analysis and preparedness was completely appropriate.“It concerns me that we're having this hearing,” Rep. Bonnie Watson Coleman (D-N.J.), the subcommittee's ranking member, said. “We are where we should be in the Department of Homeland Security.”

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Republicans Assail DHS Officials for Focusing on Climate Change

Jul 8, 2015 | The Hill - E2 Wire

By Timothy Cama

House Republicans lambasted the Obama administration Wednesday for making climate change a high priority at the Department of Homeland Security (DHS).
The GOP argued at a hearing that the emphasis comes at the expense of other, more important, activities at DHS, and puts the country at greater risk from terrorists, including the Islamic State in Iraq and Syria (ISIS).
The hearing of the Homeland Security Committee’s oversight subcommittee focused mostly on last year’s Quadrennial Homeland Security Review, which said climate change and its effects “present major areas of homeland security risk.”
“I am shocked that the department continues to make climate change a top, top priority,” said subcommittee Chairman Scott Perry (R-Pa.), citing the risks from terrorist groups, cyberattacks, incompetent airport screeners and other threats.
DHS reported that extreme weather caused by climate change could spur militant groups to become active, a prediction Perry found ridiculous.
“Are the American people to believe that the increased operations by ISIS are due to hot weather or a shortage of water?” Perry asked. “Such assertions are ridiculous, and frankly, insulting.”
The panel called on three DHS officials to testify. President Obama has asked for about $16 million for various climate-change related activities in DHS, mainly in the Federal Emergency Management Agency (FEMA) and in critical infrastructure resilience.
Rep. Jeff Duncan (R-S.C.) said climate change is not caused by human activity, a position with which the Obama administration and the vast majority of scientists disagree.
“The Earth’s been warmer before ... before fossil fuels, the industrial revolution,” Duncan said. “And this notion that man-made climate change is happening is, I think, wrong. I think your priorities are wrong at the Department of Homeland Security.”
Meanwhile, the DHS isn’t sufficiently protecting the United States, Duncan added.
“We’ve got threats of ISIS, we’ve got cartels shooting at helicopters on the border, we’ve got unaccompanied children coming into this country, we’ve got illegal aliens murdering beautiful, innocent lives in San Francisco. We’ve got a woman who got her head blown off in Los Angeles by someone,” he said.
Duncan later added that he is not a climate change “denier,” although he does not believe that humans can change the climate.
Obama’s recent focus on climate change in terms of national and international security has angered many Republicans.
He declared in January that climate change is the greatest threat to future generations and that it threatens more people than terrorism.
That led Sen. James Inhofe (R-Okla.) to famously mock the president by throwing a snowball on the Senate floor earlier this year.
The DHS representatives said considering climate change is essential, but it is not one of the five top priorities of the agency.
“Climate change, just like pandemics and natural disasters, is a factor, but certainly not the only factor that impacts the strategic environment, threats and hazards that face our homeland security,” said Thomas Smith, acting assistant secretary at the DHS for strategy, planning, analysis and risk.
Roy Wright, deputy associate administrator at FEMA, said climate change is an important part of planning for natural disasters.
“By addressing future risks, state, local, tribal and territorial governments are best prepared for future disasters and are able to bounce back faster,” he said.
The committee’s Democrats were angered at the premise of the hearing, titled “Examining DHS’s Misplaced Focus on Climate Change.”
“It concerns me that we’re having this particular hearing and that we’re spending our taxpayer money on trying to create some political theater around this issue of your role in keeping our homeland safe, on any level, with regard to any issue,” Rep. Bonnie Watson Coleman (D-N.J.), the panel’s top Democrat, said to the witnesses.
“I’m not quite sure where my colleagues on the other side of the aisle are assessing or quantifying your misallocation of priorities,” she said.
Rep. Norma Torres (D-Calif.) apologized to the witnesses for the behavior of the GOP.
“We continue to reinforce the border to the south in fear of the boogeyman, while neglecting the real risk to the American people. And that’s the next hurricane that’s going to hit and take down a bridge, or that’s the next flood that is going to impact our homeowners,” she said.

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Republicans Ridicule DHS Focus on Warming as a 'Threat Multiplier'

Jul 9, 2015 | E&E Daily

By Ariel Wittenberg

Republicans were not buying the connection between climate change and national security put forth by Department of Homeland Security officials yesterday at a heated hearing of the House Homeland Security Subcommittee on Oversight and Management Efficiency.
Chairman Scott Perry (R-Pa.) began by slamming DHS for its 2014 Quadrennial Review, which called climate change a "threat multiplier" that could fundamentally alter national security.
He accused the agency of placing more emphasis on climate change than threats like Russia and Iran, which were not mentioned in the report, saying, "I wonder if that conclusion is based on fact or propaganda."
Perry also scoffed at the assertion that climate change has contributed to the rise of Islamic extremism across the globe.
"People are being led to believe that increased actions by ISIS and Boko Haram are due to hot weather conditions and water shortages," he said. "Such assertions, to me, are insulting."
Rep. Jeff Duncan (R-S.C.) echoed that concern, saying DHS's focus on climate change could make the country vulnerable to domestic threats, too.
"There are threats going on around the world from folks who want to do harm to Christians, come into this country and end the American way of life," he said. "But we are now spending our hard-earned tax dollars on climate science and the idea that that's one of the biggest threats to national security."
Thomas Smith, DHS acting assistant secretary of strategy, planning, analysis and risk, assured the subcommittee that "the foundation of the department cornerstone mission is combating terrorism."
Democrats on the subcommittee came to the defense of DHS officials.
"Climate change makes populations more vulnerable to incitement by extremist elements and falls strictly within DHS's purview," ranking member Bonnie Watson Coleman (D-N.J.) said. "That is real. It is not fabricated, it is not a dreamland. It is real, and we need to address it as such."
In many ways, battle lines were drawn before opening remarks began yesterday, due to the hearing's title: "Examining DHS's Misplaced Focus on Climate Change."
The label had Coleman accusing Perry of "playing politics" and "misplacing the focus of a congressional oversight committee."
Rep. Norma Torres (D-Calif.) told witnesses she wanted "to apologize ... for the title of this hearing," which she called "inappropriate."
Such pushback did not stop Duncan and Perry, who both seized on remarks made by President Obama in May to the Coast Guard Academy, when he called climate change an "immediate risk to our national security" (E&ENews PM, May 20).
The two conservatives repeatedly asked witnesses to rank climate change among the security threats to the nation.
"You work for the president, he says no challenge poses a greater threat to future generations than climate change," Duncan said. "Do you believe it is a larger threat than ISIS or other terrorists using social media to radicalize people in the United States?"
Smith repeated that "our mission is preventing terrorism."
"That's not the way we characterize it," he said. "Climate change is a stressor and a threat multiplier, but not a direct threat."
Pushed by Duncan to rank threats to infrastructure, DHS Deputy Assistant Secretary of Infrastructure Protection Robert Kolasky said his office has identified the five top threats to American infrastructure, and "climate change is not one of them."
"It's acts of terrorism, cyberattacks, pandemics, aging infrastructure and extreme weather," he said. "Climate change is something that could have an impact on those."
While DHS officials struggled to convince Republican subcommittee members that climate change was within their department's jurisdiction, witness Marc Levy, deputy director of Columbia University's Center for International Earth Science Information Network, criticized government for not going far enough to prepare for climate security risks.
"The premise of this hearing is backward," he said.
Setting aside how climate change could contribute to global conflict, Levy said damage from global warming alone, from things like heat waves, sea-level rise and crop loss, would be devastating to the United States.
"If a group were to adapt the goal of inflicting these harms on the homeland, they would immediately jump to the top of the terror list," he said.
Perry asked Levy to identify other threat multipliers and rank them against risks associated with climate change.
Levy said doing so was impossible but that "statistical work has enabled us to say that the climate stress is adding a significant additional amount of stress into the mix."
"If we were lucky enough to live in a world without that risk, we would be significantly safer," he said.
Perry then countered, asking Levy to identify the "direct motivations" of Islamic extremism and terrorism and whether climate change is one of them.
Levy declined, saying, "It is outside my expertise to identify what motivates a terrorist."

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Sierra Club Launches Ad Campaign against N.M. Plant

Jul 8, 2015 | E&E News PM

By Manuel Quiñones

The Sierra Club is launching what it calls an aggressive radio ad campaign against PNM Resources Inc.'s San Juan coal plant in northwestern New Mexico, the group said today.
PNM has long proposed to reduce but not end coal-fired power generation at the plant. With the New Mexico Public Regulation Commission reviewing the company's plan, greens want a stronger focus on renewables.
"Keeping it open now would lock New Mexico into a future of burning dirty coal," says the ad, which represents a five-figure investment. "That's just not fair."
The coal industry often touts the fuel's cheap abundance. But citing increased regulatory scrutiny, the Sierra Club ad says, "Burning coal is expensive. And New Mexico's families and small businesses will be stuck paying the bill."
Regulators are scheduled to hold a meeting on the San Juan plant on Tuesday. The Sierra Club ad will run more than 200 times from now until then.

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