Preview Newsletter
ACC AM July 28
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(ACC Mentioned) Senate to Take Up Cybersecurity, Not TSCA, Next
Jul 28, 2015 | BNA Daily Environment Report
By Ari Natter and Pat Rizzuto
The Senate will take up cybersecurity legislation following action on the highway bill, knocking action on legislation to reform the nation's primary chemical statute until after Labor Day, a Senate Republican leadership aide told Bloomberg BNA July 27. There is “not enough time,” to do both bills before recess, the aide said in an e-mail. -
Americans Face an Irreversible Rollback in Chemical Safety | Commentary
Jul 28, 2015 | Roll Call
By Linda Reinstein
Nearly forty years ago, Congress recognized the dire need to protect the public from toxic chemicals with the passage of the Toxic Substances Control Act of 1976. This landmark law gave the Environmental Protection Agency the authority to regulate industrial chemicals, and gave hope to Americans that they could live in an environment... -
Broader Assessment of Combustion Chemical Urged
Jul 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency should expand the scientific studies and potential health hazards it considers as it analyzes a chemical found in coal tar and released through diesel exhaust and other combustion sources, a panel of scientific advisers told the agency. -
Targeted Toxicity: Dollar Stores and Environmental Justice
Jul 27, 2015 | Safer Chemicals Healthy Families
By Sophie Wunderlich
From brightly colored strip malls to rural roadsides, dollar stores are ubiquitous in almost every part of the country. Their purpose is to sell the absolute cheapest products possible, making the stores incredibly accessible for people from almost all walks of life. However, this accessibility has led to a dependence on dollar stores for low-income... -
NTP Releases Report on Carcinogens Handbook
Jul 28, 2015 | BNA Daily Environment Report
A handbook describing the process the National Toxicology Program uses to prepare the descriptions of chemicals used in the Report on Carcinogens (RoC) was released by NTP July 24. The RoC lists chemicals, viruses and other agents that are known or reasonably anticipated carcinogens. Inclusion in the report provides... -
September Meeting to Discuss IRIS Canceled
Jul 28, 2015 | BNA Daily Environment Report
The Environmental Protection Agency canceled its September Integrated Risk Information System (IRIS) meeting. Instead, the agency will hold its next IRIS meeting Oct. 28-29, the EPA announced in a July 24 e-mail. The agency did not give details about why it canceled the September meeting, but it said “scheduling changes”... -
San Francisco Settles Underground Tank Violations
Jul 28, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
San Francisco officials have negotiated a $1.35 million agreement to resolve alleged underground storage tank violations at four facilities, the California State Water Resources Control Board said (People v. City and County of San Francisco, Cal. Sup. Ct., No. CGC-15-546708, 7/24/15). -
Recent Spills Give More Reason to Move Beyond Big Oil
Jul 27, 2015 | EcoWatch
By Franz Matzner
Big Oil has dealt North America a battering this month as we’ve seen spill after spill hit the headlines. Label it negligence or an inevitable reality of oil production, the impact is the same: oil and its byproducts are being dumped into our communities, our water supplies and the delicate ecosystems that we value. -
GAO: Thousands Of Chemical Facilities May Be Providing Bad Data On Toxic Release Threats
Jul 27, 2015 | Fierce Homeland Security
By Dibya Sarkar
More than 2,700 chemical facilities may be misreporting the threat posed to an area from the release of a hazardous chemical, the Government Accountability Office said in a new report assessing the Homeland Security Department's program assessing such security risks. -
(ACC Mentioned) D.C. Circuit Sets Arguments In Combustion Air Rule Suits
Jul 27, 2015 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has scheduled oral arguments for Dec. 3 in three related lawsuits challenging EPA's package of combustion air rules that includes a maximum achievable control technology (MACT) air toxics rule for boilers and a stricter emissions standard for incinerators. -
EPA Faces Competing Calls To Withdraw, Expand Shale Gas ELG Proposal
Jul 27, 2015 | InsideEPA
By Bridget DiCosmo
EPA is facing competing calls over its proposed Clean Water Act (CWA) effluent rule for wastewater from the shale gas industry, with environmentalists calling on the agency to expand the rulemaking to address conventional oil and gas development and centralized waste treatment (CWT) facilities, and industry urging EPA to scrap the rule. -
Keystone Approval Among Energy Bill Amendments Oil Pipeline
Jul 28, 2015 | BNA Daily Environment Report
By Ari Natter
An amendment that would deem TransCanada Corp.'s Keystone XL pipeline approved is among the nearly 100 amendments that have been filed for potential consideration during a July 28 Senate Energy and Natural Resources Committee markup of broad energy legislation. -
Oil Exports Would Raise Gas Prices, Study Says
Jul 27, 2015 | The Hill - E2 Wire
By Timothy Cama
A study commissioned by a group opposed to exporting crude oil found that ending the decades-old ban would raise gasoline prices. The study by Alan Stevens, president of consulting firm Stancil & Co., predicted an average gas price increase of 8.4 cents to 14.5 cents per gallon if domestic oil producers are allowed to ship their products overseas... -
Leave Jones Act Out Of Export Ban -- Reps. Shuster, Defazio
Jul 27, 2015 | E&E News PM
By Geof Koss
The leaders of the House Transportation and Infrastructure Committee this month delivered a message to lawmakers mulling an overturning of the crude export ban: Leave the Jones Act out of it. In a letter to the leaders of the House Energy and Commerce Committee, Transportation Chairman Bill Shuster ... -
Oklahoma Asks Court for Stay of Clean Power Plan
Jul 28, 2015 | BNA Daily Environment Report
By Andrew Childers
Oklahoma asked a federal appellate court to stay the Environmental Protection Agency's Clean Power Plan until litigation over the proposed rule has been resolved (Pruitt v. McCarthy, 10th Cir., No. 15-5066, motion for stay 7/24/15). “Absent an injunction pending appeal, Oklahoma will be forced to restructure its electric system in order... -
Despite Odds, Critics Continue Suits To Block Final Power Plant GHG Rule
Jul 27, 2015 | InsideEPA
By Dawn Reeves
Critics of EPA's looming greenhouse gas (GHG) rule for existing power plants are continuing their long-shot lawsuits to block the rule from being finalized, despite widespread assessment that the litigation faces insurmountable procedural hurdles as federal courts are unlikely to find they have jurisdiction to review the proposed version. -
EPA Sets 2015 New Power Plant Emissions Allowances
Jul 28, 2015 | BNA Daily Environment Report
The Environmental Protection Agency issued its 2015 allocated emissions allowances for new power plants under the agency's cross-state air pollution rule, which regulates power plant emissions that cross state lines. The EPA's federal implementation plans for the cross-state rule reserve portions of each state's annual emissions ... -
Ads, Rally Target Sen. Burr On Clean Power Plan
Jul 28, 2015 | E&E Daily News
By Josh Kurtz
The League of Conservation Voters yesterday began airing two TV ads that accuse Sen. Richard Burr (R-N.C.) of siding with polluters and urge him to support U.S. EPA's Clean Power Plan. The ads are not campaign spots, even though Burr is up for re-election next year and is potentially vulnerable... -
Power Plant Rule Would Harm Rural Economies -- Co-Op Study
Jul 27, 2015 | E&E News PM
By Jean Chemnick
Rural America stands to lose more than urban America if U.S. EPA's Clean Power Plan drives power prices up, according to a paper released today by the National Rural Electric Cooperative Association. The trade group for rural electricity nonprofits argued in its report that rural economies are more sensitive to rate... -
House, Senate Seek Careful Bipartisan Balance as Energy Bills Advance
Jul 27, 2015 | Roll Call
By Lauren Gardner
The House and Senate are taking slightly different approaches to moving energy bills through their chambers, but both have the same goal — to get President Barack Obama to sign bipartisan legislation reflecting the United States’ newfound position as a major energy producer. -
Green Groups Come Out Against Senate Energy Reform Bill
Jul 27, 2015 | The Hill - E2 Wire
By Devin Henry
Eleven major environment and conservation groups came out against a Senate energy policy overhaul bill on Monday. The groups — a list that includes major players like the Sierra Club, Natural Resources Defense Council and the League of Conservation Voters, among others — said there “several provisions in this bill that we believe could... -
Green Groups Split With Cantwell on Senate Energy Bill
Jul 27, 2015 | National Journal
By Ben Gemen
Several prominent environmental groups are balking at a major energy bill crafted in part by the top Democrat on the Senate Energy and Natural Resources Committee. A letter from 11 groups ahead of Tuesday's committee markup shows how difficult it will be for lawmakers to avoid the political pitfalls that have doomed various energy bills... -
Industry Groups Launch Campaigns Against Ozone Proposal
Jul 28, 2015 | E&E Daily News
By Amanda Peterka
As Congress nears its August hiatus, industry and business groups this week are launching campaigns targeting U.S. EPA's proposal to tighten the national ozone standard. The National Association of Manufacturers today launched what it said was a multimillion-dollar ... -
Major Brands Support Strong Climate Agreement
Jul 28, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Executives from 13 of the largest and most recognizable U.S. brands—including Apple, Bank of America and Walmart—met with White House officials July 27 to voice support for a strong climate deal at an international summit in Paris later this year. “We think that Paris is a great opportunity to drive expectation... -
Environmental Group Sues Over Colorado's Haze Plan
Jul 28, 2015 | BNA Daily Environment Report
By Tripp Baltz
WildEarth Guardians is petitioning a federal appeals court to review the Environmental Protection Agency's approval of Colorado's plan for dealing with regional haze (WildEarth Guardians v. EPA, 10th Cir., No. 15-9553, 7/24/15). The environmental group filed its legal challenge July 24 under the Clean Air Act in the U.S. Court... -
Hillary Clinton Lays Out Climate Change Plan
Jul 27, 2015 | The New York Times
By Trip Gabriel and Coral Davenport
Setting ambitious goals for producing energy from the sun, wind and other renewable sources, Hillary Rodham Clinton seized on an issue Monday that increasingly resonates with Democratic voters and sets up a stark contrast with the Republican presidential field. With many Republican candidates saying... -
The Holes In Clinton’s Climate Plan
Jul 27, 2015 | PoliticoPro
By Elana Schor
Hillary Clinton’s newly unveiled climate vision sounds ambitious on its face: 500 million new solar panels from coast to coast, eco-minded energy tax breaks and enough green power to keep the lights on in every U.S. home. But just as glaring were the details she left out. Does Clinton support or oppose the Keystone XL oil pipeline? -
Clinton Steers Clear Of Keystone
Jul 27, 2015 | PoliticoPro
By Hadas Gold
Despite rolling out a set of climate change goals Sunday night, Hillary Clinton declined once again to take a position on the proposed Keystone XL pipeline on Monday, deferring to the State Department. After touring a green-certified transit station in Des Moines, Clinton told reporters that she wouldn’t... -
Dem Opponents Use Clinton Energy Plan To Tout Their Own
Jul 27, 2015 | E&E News PM
By Jennifer Yachnin
Democratic presidential front-runner Hillary Clinton is focused on solar power in her new energy platform, but her rivals for the Democratic nod see an opportunity to throw some shade. In the wake of Clinton's unveiling of her energy platform -- which focuses heavily on increasing the nation's solar ... -
Support Documents for Water Rule ‘Flawed’: Corps Memo
Jul 28, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
The economic analysis and the technical support documents used in developing and justifying a regulation to clarify the scope of the Clean Water Act are flawed and out of context, the U.S. Army Corps of Engineers said in memos just before the rule was released. -
Corps Downplays GOP's Claims Of Memos Proving 'Waters' Rule Unlawful
Jul 27, 2015 | InsideEPA
By David LaRoss
A top Army Corps of Engineers official is downplaying Senate Republicans' claims that memos between EPA and the Corps prove their argument that the agencies' joint Clean Water Act (CWA) jurisdiction rule is unlawful due to a lack of inter-agency consultation, with the Corps saying the memos were only part of a broader, adequate review. -
Energy Industry Group Challenges Clean Water Rule
Jul 28, 2015 | BNA Daily Environment Report
A group of energy companies has petitioned a federal appeals court to review and set aside the final clean water rule on the ground that it is arbitrary and capricious (Util. Water Act Grp. v. EPA, 5th Cir., No. 15-60509, 7/24/15). In its July 27 petition for review, the Utility Water Act Group also wrote that the rule, issued by the Environmental... -
Patchwork Of Suits Adds To Confusion On Venue For CWA Rule Challenges
Jul 27, 2015 | InsideEPA
By Bridget DiCosmo
The growing patchwork of litigation spawned by EPA's Clean Water Act (CWA) jurisdiction rule is adding to confusion over which courts are likely to hear consolidated cases, which the agency is sure to push for, though court watchers say it is uncertain whether the agency could win appellate court review before a district court ruling. -
Obama Admin Ok'd Controversial Rule Over Experts' Objections
Jul 27, 2015 | E&E - Greenwire Alert
By Annie Snider
The Obama administration has sold its controversial new water rule as protecting vital streams and wetlands based on sound science, deep technical expertise and solid legal principles. The federal government's on-the-ground experts disagree. According to documents obtained by Greenwire and interviews with former Army Corps... -
House Leaders Rule Out Passing Senate Highway Bill
Jul 27, 2015 | E&E News PM
By Daniel Bush and Sean Reilly
The House won't take up the Senate's long-term transportation bill before breaking for its August recess at the end of the week, Majority Leader Kevin McCarthy (R-Calif.) said today. McCarthy ruled out any action in the House this week on the Senate's six-year road and transit measure...
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(ACC Mentioned) Senate to Take Up Cybersecurity, Not TSCA, Next
Jul 28, 2015 | BNA Daily Environment Report
By Ari Natter and Pat Rizzuto
The Senate will take up cybersecurity legislation following action on the highway bill, knocking action on legislation to reform the nation's primary chemical statute until after Labor Day, a Senate Republican leadership aide told Bloomberg BNA July 27.
There is “not enough time,” to do both bills before recess, the aide said in an e-mail.
The Senate is scheduled to adjourn sometime the week of Aug. 3 and return after Sept. 7, Labor Day.
The cybersecurity bill (S. 754), by Senate Intelligence Chairman Richard Burr (R-N.C.), is aimed at improving cybersecurity threat data-sharing between the government and the private sector and comes in the wake of high-profile data breaches at Anthem Inc. and the Office of Personnel Management.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) would overhaul the Toxic Substances Control Act for the first time since it became law in 1976. S. 697 would give the Environmental Protection Agency more authority to obtain toxicity and other information about chemicals and require the agency to evaluate chemicals that have been on the market for decades, but never subject to a safety review by the agency.
Delaying the debate on S. 697 is likely to mean senators will hear from their environmental, health and industry constituents while working in their states in August and September.
The American Chemistry Council, American Medical Association, Chamber of Commerce, General Electric Co., Johnson & Johnson Services Inc., Koch Companies Public Sector LLC, March of Dimes and Parkinson's Action Network are among the diverse organizations that have lobbied on S. 697 since April 1.
Supporters Still Hopeful
Time constraints notwithstanding, supporters of S. 697 say they are still hopeful the energy behind the chemicals bill will impel floor action before the August recess.
“We're still having conversations with leadership about it, and we're still very hopeful that the Senate will take up TSCA reform before the August break. There's a lot of interest in getting to the Lautenberg bill soon because it has really strong bipartisan support,” an aide for Sen. Tom Udall (D-N.M.) told Bloomberg BNA by e-mail.
Udall introduced S. 697, which is backed by 52 Republican and Democratic senators (137 DEN A-17, 7/17/15).
Udall and Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, are among the senators supporting the chemical safety bill who repeatedly have urged Senate Majority Leader Mitch McConnell (R-Ky.) to take up the legislation before the August adjournment (136 DEN A-3, 7/16/15).
ACC: If Not August, Then Fall
The American Chemistry Council, which supports TSCA reform, said it, too, wants S. 697 to reach the Senate floor.
“We believe there may still be an opportunity to do so before the August recess,” Anne Kolton, vice president for communications at ACC, told Bloomberg BNA by e-mail.
“The extended consideration of the highway bill makes scheduling more of a challenge before they adjourn, but we're confident that we'll see Senate action this fall, if not before the August break,” she wrote.
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Americans Face an Irreversible Rollback in Chemical Safety | Commentary
Jul 28, 2015 | Roll Call
By Linda Reinstein
Nearly forty years ago, Congress recognized the dire need to protect the public from toxic chemicals with the passage of the Toxic Substances Control Act of 1976. This landmark law gave the Environmental Protection Agency the authority to regulate industrial chemicals, and gave hope to Americans that they could live in an environment that was free of dangerous toxins.
Unfortunately, 1976 TSCA has failed miserably, and the EPA has only managed to ban five chemicals since 1976. Today, 84,000 chemicals remain present in U.S. homes, schools, the environment, and consumer products. Shockingly, among these ever-present poisons is asbestos.
For more than 100 years, scientific studies have confirmed asbestos exposure can cause the devastating and always-fatal mesothelioma, as well as lung, gastrointestinal, laryngeal and ovarian cancers, asbestosis and pleural diseases. The World Health Organization estimates 107,000 workers around the world will die every year of an asbestos-related disease. And in the U.S., 41 Americans die every day from asbestos-related diseases. Yet, asbestos is still legal in the U.S. and imports continue.
In fact, asbestos — of all things — was the vehicle that allowed the chemical industry to break 1976 TSCA, and put public health and safety at indefinite risk. In 1989, after conducting a ten-year study, the EPA issued a final rule under Section 6 of TSCA banning most asbestos-containing products. Yet, just two years later, the Fifth Circuit Court of Appeals overturned the ban in Corrosion Proof Fittings vs. EPA. As a result, most of the original ban on the manufacturing, importation, processing, and/or distribution in commerce for the majority of the asbestos-containing products covered in the 1989 final rule was overturned and Americans remain at constant risk of exposure to this deadly substance.
It’s no wonder that TSCA reform is “big business.” According to Open Secrets, in 2014, the chemical industry spent more than $64.7 million lobbying Washington. The chemical industry has vast resources to influence the regulation of dangerous chemicals, but Americans pay the ultimate price – in many cases with their lives. Although it may appear progress has been made with the passage of the TSCA Modernization Act (HR 2576) and Sens. David Vitter, R-La., and Tom Udall’s, D-N.M., “Frank R. Lautenberg Chemical Safety for the 21st Century Act” (S 697) — which will soon go to the Senate floor — we are dangerously far away from real TSCA reform. Astonishingly, both bills ignored even mentioning asbestos.
Just months ago, Udall acknowledged, “The poster child for TSCA reform is asbestos.” He’s absolutely right. Real TSCA reform must ensure the EPA can expeditiously review unsafe chemicals like asbestos and take action to protect public health. As written without an asbestos amendment, this legislation allows the EPA discretion to select which high priority chemicals will be prioritized for testing instead of mandating the prioritization of deadly chemicals such as asbestos.
Shockingly, three independent investigations in 2000, 2007, and just again in 2015 confirmed asbestos contamination in consumer products and children’s toys. Over the past fifteen years, the U.S. consumed 55,000 metric tons of asbestos and an estimated 150,000 Americans have died from preventable, asbestos-related deaths. Congress, the EPA, and the Consumer Product Safety Commission have taken no action to stop these toxic imports.
The USA lags behind the European Union and Australia in regulating asbestos. More than 50 countries have banned it, and these countries remain economically viable without asbestos in consumer products and toys. Unlike the USA, the EU has placed the burden of protection on industry instead of the everyday consumer, and established REACH (the Registration, Evaluation, Authorization and Restriction of Chemicals) to hold industries responsible for assessing and managing the risks posed by the chemicals they produce, use, and sell. Instead of individuals and nonprofits spending time and dollars privately investigating asbestos in consumer products, they consider it industry’s responsibility.
The time is now for real TSCA reform.
Americans demand and deserve legislation that protects us from hazardous chemicals and lethal carcinogens, not a chemical industry-supported TSCA rollback.
Unfortunately, both proposed bills fall short of what is needed to ensure meaningful TSCA reform, especially when it comes to asbestos. Now is the time for our lawmakers to come together to pass a bill to end the asbestos man-made disaster, ensure that this killer is expeditiously banned, and finally protect the American public from toxic chemical hazards.
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Broader Assessment of Combustion Chemical Urged
Jul 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency should expand the scientific studies and potential health hazards it considers as it analyzes a chemical found in coal tar and released through diesel exhaust and other combustion sources, a panel of scientific advisers told the agency.
The Chemical Assessment Advisory Committee for benzo[a]pyrene urged the agency to analyze several worker studies and consider several additional possible ways the chemical could harm people's health.
For example, the committee said the EPA should consider the potential human health relevance of toxicity the chemical causes to rodents' forestomachs. People do not have that particular organ, but they have similar tissue, the committee said in a draft critique of the EPA's draft toxicological review benzo[a]pyrene.
The agency's Science Advisory Board, which includes the benzo[a]pyrene committee, released the draft critique online July 24. The committee will continue to work on its draft document during two public teleconferences scheduled Aug. 21 and Sept. 2.
Air Office Plans to Use Final Information
The benzo[a]pyrene assessment that the EPA's Integrated Risk Information System is conducting is important to several parts of the agency. For example, risk values and health conclusions that would be made in the agency's final assessment would affect about a dozen regulatory and nonregulatory risk-management actions the agency's air office expects to release in a year or so, an EPA toxicologist said in April (73 DEN A-11, 4/16/15).
Benzo[a]pyrene (BaP) is the most-studied compound within the family of more than 100 polycyclic aromatic hydrocarbons, so information about it is used to predict the toxicity of other PAHs.
These polycyclic chemicals are produced when materials such as coal, oil, gas, wood and garbage are burned but the combustion process is not complete. Natural sources include forest fires and volcanos. People also can be exposed by eating barbecued or smoked foods or by applying coal tar-based medications used for skin problems such as eczema.
Panel Agrees With Several EPA Conclusions
The EPA released a draft, updated assessment of benzo[a]pyrene in 2014 that concluded the chemical is a human carcinogen that also can harm development, reproduction and the immune system (193 DEN A-6, 10/6/14).
The SAB committee agreed with those conclusions.
The agency should examine more studies and potential harms that may be associated with BaP exposure, however, the committee said .
It suggested, for example, that the agency give more consideration to data that showed effects on inflammation and abnormal tissue growth in the cervix, part of the female reproductive system.
The potential for benzo[a]pyrene to harm neurodevelopment also needs to be examined further to ensure the agency examines many potential ways harm could occur, the committee said. Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:8.0pt; mso-para-margin-left:0in; line-height:107%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}
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Targeted Toxicity: Dollar Stores and Environmental Justice
Jul 27, 2015 | Safer Chemicals Healthy Families
By Sophie Wunderlich
From brightly colored strip malls to rural roadsides, dollar stores are ubiquitous in almost every part of the country. Their purpose is to sell the absolute cheapest products possible, making the stores incredibly accessible for people from almost all walks of life. However, this accessibility has led to a dependence on dollar stores for low-income Americans. The core customer base, around 42%, has an average income of less than $30,000 a year. 40% of dollar store buyers rely on public assistance of some type. For many families, dollar stores are the only source of their household necessities, including food, children’s toys, and clothing.
However, these cheap products do not come without a more significant cost. Despite low prices, dollar stores are selling products with high levels of toxicity, posing a significant threat to the most vulnerable population. In February of this year, the Campaign for Healthier Solutions and Healthystuff.org conducted a study to determine the presence of toxic chemicals in dollar store products. The study tested 164 products at 4 major discount retailers—Dollar General, Dollar Tree, Family Dollar, and 99 Cents Only—in 6 states. Researchers tested for antimony, arsenic, bromine, chlorine, lead, mercury, and tin. Of the 164 products tested, 133 (81%) were found to have at least 1 toxic chemical above established levels of concern, and 49% contained 2 or more toxic chemicals. These levels of toxicity can pose a grave danger to the consumer.
In fact, multiple products actually contained excessive lead, including a table cover and jewelry designed for children and teens. A dangerous heavy metal, lead has been deemed unsafe for children at all levels. Even the slightest exposure to lead impacts a child’s brain development, resulting in irreversible learning and developmental problems. Lead is a potent neurotoxin that has already been regulated by the US Consumer Product Safety Commission, yet the study still found the substance in products targeted at families and children.
Another chemical of great concern, vinyl plastic, was found in 63 (38%) of the products tested. Vinyl plastic, which itself is linked to asthma and lung problems, also contains plasticizers that maintain its flexibility, referred to as phthalates. Phthalates are endocrine disruptors, toxic chemicals that can cause birth defects, cancer, asthma, allergies, thyroid problems, and kidney disease. Exposure occurs easily because phthalates are not chemically bound to the vinyl, and therefore tend to leach out or evaporate into the air and food. Humans are typically exposed to phthalates dermally, or through ingestion or inhalation. Due to these serious health risks, phthalates—specifically DEHP, BBP, and DBP—have been banned in the US in children’s products above concentrations of 0.1% since 2009. Despite this ban, the Dollar Store Report found that 12 of the products tested, 32% of all products containing vinyl plastic, had toxic phthalates above the CPSC’s limit. Not only are dollar stores knowingly selling dangerous products, but they have also shown blatant disregard for safety regulations, placing our nation’s children at serious risk for health problems.
Above all, these alarming toxicity levels in our country’s dollar stores illuminate a necessary discussion about environmental justice. In many communities where dollar stores are located, the stores are simply the only establishment selling essential household products. Therefore, people of color and low-income families are trapped in a dangerous cycle: even if they wanted to protect their family from hazardous chemicals, they have no access to healthier, safer alternatives. Dollar stores knowingly create toxic monopolies, exposing vulnerable families to hazardous chemicals. In fact, Family Dollar policies specifically target “food deserts”, or impoverished rural towns or urban neighborhoods where they would be the only store selling food. The people in these areas already experience reduced availability of medical care, fresh food, and public services. Therefore, these families’ overall health already affords them a diminished ability to withstand toxic chemical exposure. Dollar store products may be cheap, but the long-term costs associated with health problems are enormous.
The US has a long history of environmental injustice, consistently putting vulnerable people at risk by disproportionately exposing them to sources of ecological harm. For example, sites for chemical or waste dumping tend to be placed in low-income areas or communities of color. Non-white communities have an average of 48 hazardous waste sites per square mile, while White communities have just two. Toxic chemicals in dollar store products are only adding to the burden placed on these vulnerable populations. Dee Treviño of Houston, Texas describes the dangerous situation faced by low-income families:
“My family is already exposed to pollutants and other environmental dangers, so why would I add onto that? Seeing illnesses in my own extended family and lack of access to healthcare, why would I increase my family’s chances of developing something due to my poor choices when buying products?”
While dollar stores experience sales totaling $36 billion (40% of these profits go toward food products—most of which are unhealthy and may be packaged with plastics containing toxic BPA), low-income families struggle to make ends meet and are forced to shop at these toxic chemical-infested dollar stores.
These dangers are not just theoretical: it has been proven that low-income communities and people of color are excessively experiencing the negative health impacts linked to toxic chemical exposure. Overall, communities where 15% or more of the population is non-White bear more than 20 times the environmental burden of White communities, with 10 times the chemical pollution released per year. In fact, African-American and Mexican-American children are much more likely to be lead poisoned than White children. African-American children have double the asthma rates of White, Hispanic, and Asian children. By ignoring federal regulation and manufacturing products with toxic chemicals, dollar stores only serve to further this harmful trend.
The danger posed by toxic chemical exposure in dollar store products is what the Campaign for Healthier Solutions is trying to alleviate. The campaign is a grassroots organization across 4 states, based around the principles of environmental justice. I spoke with José Bravo, the campaign’s National Coordinator, to learn about their recent work. As he explained, their core belief is simple: “Everybody should have the ability to shop wherever they want without being poisoned.” The Campaign for Healthier Solutions sent a letter with signatures from organizations in 27 states to the CEO’s of each store. These letters asked them to halt the sale of toxic products to low-income communities and to adopt policies that require disclosure of toxics and removal of the substance if there is a safer alternative available. These letters stipulate the Campaign for Healthier Solutions’ demands: that the dollar stores change their policies, that the chains themselves demand reform from their suppliers, and that they improve the quality of their food offerings. With the lack of accessible fresh food for people in dollar store-dependent areas, the stores could make an enormous difference in the community if they were to sell fruits and vegetables from the local area. Mr. Bravo believes dollar stores should aim to place foods from community gardens onto their shelves. “It would give consumers access to the fresh food in an affordable manner.”
Finally, the campaign demands a face-to-face meeting with the CEO of each chain. This face-to-face meeting would be an effort to help the company craft a new chemicals policy by giving them examples of preexisting successful campaigns. It is neither impossible nor particularly arduous for dollar store chains to change their policies. Successful and comprehensive strategies already exist and have been implemented by stores like Wal-Mart and Target. Dollar stores could model their chemicals policies after these standards, including ingredient disclosure and risk assessment. These strategies are well documented and can be designed by hired technicians or experts in the field. As José Bravo described, “They wouldn’t be the first to do this.” Many companies, states, and municipalities are already making strides in ensuring the safety of consumer products. Additionally, safer alternatives to toxic chemicals are readily available for retailers. Change is far from impossible, yet these meetings have not yet been agreed to.
Dollar stores, in response to the Campaign for Healthier Solutions and Healthystuff.org’s report, have taken small, preliminary actions to respond to federal and state regulations, but still have not taken truly meaningful steps. According to Mr. Bravo, “Some of the products we had tested that came back positive for toxics have been removed—but not all of them.” The chains have been largely unresponsive. Dollar General even openly criticized the report, claiming the testing protocol was inadequate or biased. Despite the Dollar Store Report’s publicly available verification of an independent laboratory, Dollar General continues to question the legitimacy of the findings. However, these claims do not seem to worry Mr. Bravo all that much. “Our campaign has had good media coverage,” he explained, confident in their accuracy.
At this point, he told me, the Campaign for Healthier Solutions is “challenging any of the 4 dollar store chains to step up and be the leader.” So far, he says, it has fallen on deaf ears and it remains unclear which company will be the first to change their ways and be the leader. If the chains are still non-compliant with their demands, the campaign plans to continue gaining public support and taking action to achieve its goals. The battle for safer dollar store products is far from over, but it is one that they will continue to fight.
If Americans allow dollar stores to continue selling toxic products to vulnerable families, we cannot call ourselves an egalitarian or socially-conscious society. It is a grave injustice that low-income communities and families of color experience these dangers. Changes must be made to ensure equal access to safe products. The ability to live a safe and healthy lifestyle must not hinge on income or race: it must be equally available to all people.
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NTP Releases Report on Carcinogens Handbook
Jul 28, 2015 | BNA Daily Environment Report
A handbook describing the process the National Toxicology Program uses to prepare the descriptions of chemicals used in the Report on Carcinogens (RoC) was released by NTP July 24. The RoC lists chemicals, viruses and other agents that are known or reasonably anticipated carcinogens. Inclusion in the report provides hazard information, but it does not mean any particular exposure to the chemical or other agent would cause cancer. Inclusion in the report, however, can trigger the need to update safety data sheets and other hazard communications. The NTP prepares the document for the Department of Health and Human Services as requested by Congress. The NTP announcement and a copy of the RoC handbook are available at http://ntp.niehs.nih.gov/pubhealth/roc/handbook/index.html .
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September Meeting to Discuss IRIS Canceled
Jul 28, 2015 | BNA Daily Environment Report
The Environmental Protection Agency canceled its September Integrated Risk Information System (IRIS) meeting. Instead, the agency will hold its next IRIS meeting Oct. 28-29, the EPA announced in a July 24 e-mail. The agency did not give details about why it canceled the September meeting, but it said “scheduling changes” prompted the decision along with the need to provide the public sufficient time to review materials for the meeting. The topics for the September meeting had not been announced by the agency. EPA said it will announce the topics for the Oct. 28-29 meeting in coming weeks.
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San Francisco Settles Underground Tank Violations
Jul 28, 2015 | BNA Daily Environment Report
By Carolyn Whetzel
San Francisco officials have negotiated a $1.35 million agreement to resolve alleged underground storage tank violations at four facilities, the California State Water Resources Control Board said (People v. City and County of San Francisco, Cal. Sup. Ct., No. CGC-15-546708, 7/24/15).
Announced July 27, the settlement requires the San Francisco Municipal Transportation Agency to pay $425,000 in penalties and $100,000 for reimbursement of enforcement costs.
State officials agreed to suspend $850,000 in penalties and other payments, if, over the next five years, the transportation agency completes several enhanced compliance projects and remains in compliance with the laws and terms of the final consent judgment.
A California Superior Court judge in San Francisco approved the settlement July 24.
The enforcement action stems from an investigation the state water board launched in 2012 as part of its review of government-owned underground storage tank facilities.
In the related civil complaint filed July 6, state authorities alleged multiple violations involving leak prevention requirements at four city- and county-owned fuel storage facilities.
Specific allegations accused the transportation agency of failing to ensure monthly inspections and testing of various equipment; recordkeeping failures; failure to adequately maintain spill containment systems and equip tanks with overfill prevention systems; and making false statements to authorities.
Officials at the San Francisco Municipal Transportation Agency failed to respond to a request for comment on the settlement.
The enforcement action is the fourth brought against the San Francisco Municipal Transportation Agency since 2010, the state water board said. Normal 0 false false false EN-US X-NONE HE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:8.0pt; mso-para-margin-left:0in; line-height:107%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri",sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}
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Recent Spills Give More Reason to Move Beyond Big Oil
Jul 27, 2015 | EcoWatch
By Franz Matzner
Big Oil has dealt North America a battering this month as we’ve seen spill after spill hit the headlines. Label it negligence or an inevitable reality of oil production, the impact is the same: oil and its byproducts are being dumped into our communities, our water supplies and the delicate ecosystems that we value. Despite the industry’s slick rhetoric of reassurance about the safety of oil extraction, it is undeniably clear that Big Oil is unable to contain its destructive product to the detriment of our health, communities and environment.
It is high time our elected leaders embrace this indisputable fact and start taking serious steps to reduce our exposure to these risks—starting by saying no to the most extreme projects like drilling in the Arctic and Atlantic coasts or tar sands development—and ensuring that whatever extraction does occur is held to stringent safety standards. Ultimately, however, what the recent headlines make abundantly clear is that we will only be safe from the harms of fossil fuel production when we succeed in moving beyond oil to clean alternatives—and there is no time to waste.
Between four spills in July alone (described in the chart above), we have seen more than 1.3 million gallons oil foul our lands while an unknown quantity, up to another million gallons, was leaked in to Galveston Bay. Of the oil allowed to spill onto soil, 97 percent of it was near Ft. McMurray in Alberta, Canada. The 1.3 million gallons of emulsion (tar sands bitumen and water) leaked by tar sands leviathan, Nexen, constitutes one of the worst land spills in history and it evaded detection by the relatively new pipeline’s “failsafe” spill detection system.
Neither the spill itself nor the failure of the failsafe are rare occurrences, unfortunately. A 2012 study by the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration found that leak detection systems only detected spills on a company’s right-of-way 11 percent of the time. So pipelines are left to dump toxic pollutants onto the ground until an employee, landowner, or member of the public stumbles across it 9 times out of 10. In the last 20 years, there have been more than 5,600 “significant” pipeline incidents that have caused nearly 1,400 injuries, killed an average of 18 people each year and cost almost $7 billion in damages.
Big Oil wants us to label these spills as unforeseen mistakes. “Accidents happen,” they say. But when a pattern is clear, risks are high and consequences grave, it’s time to question whether it is right to accept a status quo of predictable, consistent error and harm. Instead, we must acknowledge that each of these oil spills are not only technological mistakes or matters of human error, but systematic failures and allowing them to continue becomes a question of conscience.
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GAO: Thousands Of Chemical Facilities May Be Providing Bad Data On Toxic Release Threats
Jul 27, 2015 | Fierce Homeland Security
By Dibya Sarkar
More than 2,700 chemical facilities may be misreporting the threat posed to an area from the release of a hazardous chemical, the Government Accountability Office said in a new report assessing the Homeland Security Department's program assessing such security risks.
The GAO report (pdf), which was published July 22, reviewed the Chemical Facility Anti-Terrorism Standards, or CFATS, program that identifies and assesses the risk by chemical facilities and then requires those facilities to impose measures to better protect those facilities. The Infrastructure Security Compliance Division, or ISCD, within DHS's Office of Infrastructure Protection oversees the program.
Among other findings, GAO said ISCD used self-reported and unverified data to determine the risk level of facilities evaluated for an intentional toxic release threat.
There are 37,000 facilities that have submitted what's called a "Top-Screen," an initial screening tool for a facility with a "chemical of interest" that provides data, including its name, facility location, and chemicals and their quantities at the site. Of those 37,000, more than 6,400 facilities store a chemical that's at or above a certain threshold quantity, which could pose a toxic release threat, GAO said.
"As part of the Top-Screen, ISCD requires these facilities to self-report the Distance of Concern, which represents the radius of an area in which exposure to a toxic chemical cloud from a release event could cause serious injury or fatalities from short-term exposure," the report said.
ISCD uses this Distance of Concern to determine what would happen from an intentional release. Using DHS guidance and Top-Screen data, GAO recalculated the Distance of Concern for a sample of facilities and compared the results to what the facilities themselves reported.
Investigators said they found that more than 2,700 facilities – at least 44 percent of facilities with a toxic release chemical – misreported the Distance of Concern. Additionally, at least 1,200 of those 2,700 facilities, or 43 percent, underestimated the radius of an exposure area.
GAO said that ISCD officials acknowledged that some facilities may have erred in reporting the Distance of Concern and that they don't verify such information. They said that most facilities use a web-based tool to calculate the Distance of Concern to meet certain Environmental Protection Agency requirements.
However, GAO said DHS guidance requires facilities to calculate the Distance of Concern based on an intentional release, which is different from what EPA requires.
"By verifying that the data ISCD used in its risk assessment are accurate, ISCD could better ensure it has identified the nation's high-risk chemical facilities," GAO said.
Additionally, investigators also found that ISCD has made significant progress in approving site security plans and that it will take up to a year to review and approve such plans for about 900 remaining facilities. That's a substantial improvement over the previous estimate of seven to nine years that GAO reported in 2013.
Still, GAO said that ISCD needs to better document processes and procedures for facilities that have yet to implement planned measures outlined in their site security plans.
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(ACC Mentioned) D.C. Circuit Sets Arguments In Combustion Air Rule Suits
Jul 27, 2015 | InsideEPA
The U.S. Court of Appeals for the District of Columbia Circuit has scheduled oral arguments for Dec. 3 in three related lawsuits challenging EPA's package of combustion air rules that includes a maximum achievable control technology (MACT) air toxics rule for boilers and a stricter emissions standard for incinerators.
In July 21 orders, the court said it will hear together the cases United States Sugar Corp v. EPA, which challenges the MACT for large “major” source boilers; American Chemistry Council v. EPA, which challenges the MACT for smaller “area” source boilers; and American Forest and Paper Association, et al. v. EPA, which is a suit over the agency's emissions standard for commercial and industrial solid waste incinerators.
Major sources as defined by the Clean Air Act are those emitting more than 10 tons per year (tpy) of one hazardous air pollutant (HAP) or 25 tpy of a combination of HAPs. Area sources emit below these thresholds.
Criticisms of the rules raised by industry in briefing in the cases include whether EPA can require energy efficiency assessments and tune-ups for boilers; whether EPA can set MACT limits on a pollutant-by-pollutant basis; whether EPA should set “work practice standards” instead of numeric emissions limits; EPA's failure to account for malfunctions in setting MACT standards; and whether MACT limits are unattainable.
Environmentalists, meanwhile, challenge EPA's use of carbon monoxide as a “surrogate” for HAPs, the agency's use of subcategories to set MACT standards, and EPA's reliance on a statistical method called the Upper Prediction Limit (UPL) to set MACT standards. Environmentalists say the UPL is not a true average, as required by the Clean Air Act, and makes the MACT emissions limits weaker than they should be.
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EPA Faces Competing Calls To Withdraw, Expand Shale Gas ELG Proposal
Jul 27, 2015 | InsideEPA
By Bridget DiCosmo
EPA is facing competing calls over its proposed Clean Water Act (CWA) effluent rule for wastewater from the shale gas industry, with environmentalists calling on the agency to expand the rulemaking to address conventional oil and gas development and centralized waste treatment (CWT) facilities, and industry urging EPA to scrap the rule.
Industry groups in public comments filed on EPA's proposal to set first-time zero discharge standards for municipal treatment plants processing wastewater from the oil and gas sector say that the agency did not complete the extensive analysis required under section 304 of the CWA and urge the proposed rule's immediate withdrawal.
While EPA has said that the proposal will not result in costs to industry because the agency did not identify any operators currently discharging to publicly owned treatment works (POTW), industry warns that the rule would permanently remove a potentially viable wastewater management option for the industry.
But environmental groups are urging EPA to expand the rulemaking to include CWTs, which EPA is examining in a separate study. Further, environmentalists are seeking strict restrictions for wastewater from conventional drilling in addition to effluent from shale, or unconventional, gas and oil development.
"EPA's proposed distinction between unconventional oil and gas wastewater and conventional oil and gas wastewater has the virtue of concentrating on the subset of oil and gas operations experiencing the fastest growth, but it is less than optimal for pretreatment authorities and public health and the environment," Environmental Defense Fund says in July 17 comments on the proposed rule. "If these two forms of production are permanently segregated, EPA will fill only a portion of the existing regulatory gap with this rule."
EPA's shale pretreatment proposal, issued March 31 under section 304(m) of the CWA, is aimed at filling what the agency says has become a gap in existing effluent limitation guidelines (ELG) for the oil and gas industry to help ensure that the current practice of not sending wastewater to POTWs continues.
Current regulations for direct dischargers for onshore oil and gas wastewater set a "zero discharge" standard for discharges of pollutants to surface waters, but there are no existing rules for "indirect" dischargers of the sector's effluent, such as drillers that send their wastewater to POTWs for treatment before it is discharged.
The POTW issue drew particular concern in the Marcellus Shale region, largely due to challenges such as a lack of effluent limits for pollutants unique to the sector and Pennsylvania's geological constraints that limit the number of underground disposal wells -- EPA's preferred method of disposal of the sector's wastes.
The agency says in its proposed rule that no POTWs are currently receiving shale wastewater, and therefore the rule "causes no incremental change to current industry practice that EPA measured as compliance costs or monetized benefits."
EPA says that the rule is still necessary because onshore unconventional oil and gas extraction facilities have discharged to POTWs in the past, and the potential remains that some facilities could consider discharging to POTWs in the future. The agency took comment on the rule through July 17.
Industry's Concerns
But industry is calling on EPA to withdraw the rule, saying it would improperly cut them off from possible future options for wastewater disposal without the agency having undertaken the required analysis under section 304 of the law.
The American Petroleum Institute in July 17 comments raises concern that the proposal was "developed without observance with the analytical requirements for the development of ELGs and pretreatment standards that are laid out in the [CWA] and its implementing regulations, as well as in numerous categorical pretreatment standards that precede the present proposal."
The group charges that the proposed rule would result in permanently eliminating a potentially viable option for disposal. "We therefore oppose the permanent removal of an option that has the potential, with improved technology, to become a valuable tool for recycling treated water and returning this important resource to the hydrologic cycle," the comments say.
The Independent Petroleum Association of America (IPAA) similarly says in July 16 comments that EPA's analysis is "flawed" and falls short of CWA requirements to craft ELGs that "meet not only current circumstances but future needs as well."
The CWA requires an ELG to be based on the best technology economically achievable. IPAA argues that EPA did not adequately consider this threshold. "Consequently, we recommend that EPA withdraw the current proposed pretreatment ELG[,] . . . that it conduct a thorough review of actual waste water management technologies, that it determine best available technology economically achievable (BATEA) and new source performance standards based on these technologies," and then repropose the rule, the comments say.
On the other hand, environmentalists, while generally supportive of the rulemaking, say that the agency should use the opportunity to address other wastewater issues related to the oil and gas sector -- part of a longstanding push for EPA to take a more holistic approach to regulating the sector's wastes as opposed to dealing with piecemeal parts of the industry.
Waterkeeper Alliance in July 17 comments urges EPA to consider, either as part of this rulemaking or in a second proposal, updating pollution control standards for CWTs associated with hydraulic fracturing and developing water quality criteria for all chemicals common to shale gas wastewater. "EPA should update the CWT ELGs to adequately address all of the constituents present in shale gas wastewater," including bromides, radionuclides and total dissolved solids (TDS), the comments say.
The agency announced last year the launch of a study of CWT facilities, or industrial plants, that accept oil and gas extraction wastewater, to examine whether current regulations provide adequate controls for treating such wastes, but it is unclear whether any regulatory updates are planned.
The comments also urge EPA to update all of its recommended water criteria -- which it sets under the CWA and which are then used by states to set enforceable water quality standards to protect surface waters -- for all shale gas wastewater constituents. This would include creating first-time criteria for naturally occurring radioactive material, bromide, and TDS, while updating criteria for chloride, oil and grease and other substances for which there is existing criteria.
'Unconventional' Definition
Meanwhile, Kansas' Department of Health and the Environment (KDHE) in July 16 comments urges EPA to refine its definition of "unconventional" oil and gas, which says "The tight oil/gas reservoir rocks have permeability and porosity lower than reservoirs of conventional oil and gas resources but with permeability generally greater than shale."
KDHE says in its comments that the definition is descriptive but "provides little in the way of regulatory criteria" and could hinder enforcement if EPA regions and delegated states were unable to clearly distinguish between conventional and unconventional drilling wastewater. "Clear and distinct definitions for both 'conventional oil and gas' and 'unconventional oil and gas' need to be provided . . . to enable EPA, States, and POTWs to determine whether wastewater from oil and gas extraction would be prohibited from being introduced into a POTW wastewater treatment system," the comments say.
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Keystone Approval Among Energy Bill Amendments Oil Pipeline
Jul 28, 2015 | BNA Daily Environment Report
By Ari Natter
An amendment that would deem TransCanada Corp.'s Keystone XL pipeline approved is among the nearly 100 amendments that have been filed for potential consideration during a July 28 Senate Energy and Natural Resources Committee markup of broad energy legislation.
It remains to be seen if Sen. John Hoeven (R-S.D.) intends to offer the amendment or how many of the other amendments will be considered.
Other amendments filed include a measure by Sen. John Barrasso (R-Wyo.) to expedite permitting of natural gas pipelines on federal land and a measure by Hoeven that would grant states a greater role in regulating coal ash.
That measure, co-sponsored by Sen. Joe Manchin (D-W.Va.), also would permanently bar the Environmental Protection Agency from regulating coal ash as a hazardous waste under the Resource Conservation and Recovery Act and is supported by groups representing utilities such as American Electric Power and Dominion.
The potential amendments to the Energy Policy Modernization Act of 2015 (no bill number assigned) come amid pent up demand in the Senate for energy legislation, which last passed a major energy bill in 2007. A fight over amendments related to the Keystone XL pipeline and the EPA's regulation of power plants, among other issues, led to wide support for energy efficiency legislation (S. 2262) being pulled from the Senate floor last year (92 DEN A-3, 5/13/14).
Robert Dillon, a spokesman for committee chairman Lisa Murkowski (R-Alaska) and other Republicans on the energy committee, said it was possible several amendments could be rolled into a larger manager's amendment package.
Working With Sponsors on Amendments
“We're working through amendments with the sponsors and seeing if they are going to offer them,” Dillon told Bloomberg BNA. “It's an open process. If we don't finish tomorrow we'll keep going Wednesday, Thursday.”
Other amendments that have been filed include a measure by Sen. Mike Lee (R-Utah) that would give authority over the regulation of hydraulic fracturing on public land to the state instead of the federal government and a “sense of the Senate” amendment by Sen. Bernie Sanders (I-Vt.) stating that global warming is real and caused by human activities and “has already caused devastating problems” in the U.S. and abroad.
“It is imperative that the United States transform the energy system of the United States away from fossil fuels and toward energy efficiency and sustainable energy as rapidly as possible,” the text of the presidential nominee's amendment said.
Opportunity for Debate Welcomed
Murkowski in remarks to reporters last week has said she welcomes the “opportunity for good debate” at the markup.
“If you don't like what's in it, you think something should be added, this is your opportunity to weigh in,” Murkowski said.
The underlying legislation revealed July 22 includes policy measures ranging from expediting the Energy Department's approval process for liquefied natural gas exports to boosting the cybersecurity protections for the electric grid, and it represents months of bipartisan negotiations within the committee(141 DEN A-8, 7/23/15).
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Oil Exports Would Raise Gas Prices, Study Says
Jul 27, 2015 | The Hill - E2 Wire
By Timothy Cama
A study commissioned by a group opposed to exporting crude oil found that ending the decades-old ban would raise gasoline prices.
The study by Alan Stevens, president of consulting firm Stancil & Co., predicted an average gas price increase of 8.4 cents to 14.5 cents per gallon if domestic oil producers are allowed to ship their products overseas.The conclusions clash with those of oil companies who support the ban, along with other business groups and independent researchers.
“Allowing the export of crude would cause domestic gasoline, jet fuel, diesel, and heating oil prices to increase,” the study found, in addition to other negative impacts like increasing the United States’ trade imbalance.
The research was commissioned by Consumers and Refiners United for Domestic Energy, or CRUDE, an ad-hoc group of independent refiners who are lobbying to keep the 40-year-old export ban.
It comes the day before the Senate Energy and Natural Resources Committee could start considering a bill sponsored by Sens. Lisa Murkowski (R-Alaska) and Heidi Heitkamp (D-N.D.) to end the ban.
“This study clearly demonstrates that exporting U.S. crude will raise prices at the pump,” Jay Hauck, the group’s executive director, said in a statement.
“This report is a holistic and thorough analysis of energy markets, which shows that American consumers and businesses will take a major hit if Congress lifts export restrictions,” he said. “This is more evidence that Congress should think long and hard before rushing to change our 40-year-old energy independence law.”
Producers for American Crude Oil Exports, or PACE, has come to different conclusions.
The ad-hoc group says gasoline prices would actually decline if oil were exported, in addition to benefits like more jobs, more economic growth and better national security.
In responding to CRUDE’s study, PACE said its main problem is its assumption that crude oil prices determine the cost of gasoline and other refined products.
The oil producers’ group cites research from the Energy Information Administration, the Government Accountability Office and elsewhere to say that CRUDE’s incorrect assumption invalidates the rest of its analysis.
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Leave Jones Act Out Of Export Ban -- Reps. Shuster, Defazio
Jul 27, 2015 | E&E News PM
By Geof Koss
The leaders of the House Transportation and Infrastructure Committee this month delivered a message to lawmakers mulling an overturning of the crude export ban: Leave the Jones Act out of it.
In a letter to the leaders of the House Energy and Commerce Committee, Transportation Chairman Bill Shuster (R-Pa.) and ranking Democrat Peter DeFazio of Oregon warned that linking the Jones Act to the crude export ban would complicate the energy bill's prospects by triggering a referral to their own panel. The Jones Act requires that commodities moving on waters within the United States do so on American-owned and -built vessels that are crewed by at least three-quarters U.S. citizens.
"We look forward to supporting a comprehensive energy package, which promotes U.S. production, the efficient use of energy and U.S. energy independence," Shuster and DeFazio wrote to Energy Chairman Fred Upton (R-Mich.) and ranking member Frank Pallone (D-N.J.) on July 21. "We hope that package will not include provisions detrimental to the U.S. maritime transportation system or our national defense sealift needs."
The energy panel ultimately left the crude export ban out of the base bill marked up last week, although the omission appears to have been more out of maintaining bipartisan support for the energy package than fears of annoying members of the Transportation Committee (E&E Daily, July 21).
The issue could surface during a full committee markup expected in September or on the House floor.
The letter serves as a reminder of the enduring political support for the Jones Act, which was signed into law by President Woodrow Wilson. Multiple industries have long complained about the costs the law adds to U.S. shipments, but the clout of the shipbuilding industry has kept the statute intact.
With energy producers increasingly taking to the water to get oil and gas to market, the long-standing Jones Act complaints have periodically surfaced in recent years, as U.S. production boomed.
Some critics of the push to repeal the crude export ban have also raised the issue, noting that doing so would make it cheaper for producers to send oil and gas to European refiners than it would to Pennsylvania refineries, where such shipments would be subject to Jones Act requirements.
The top House and Senate Republicans leading the export push have both acknowledged the intersection between exports and the Jones Act, which threatens to undercut some potential support for a repeal of the crude ban. But Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) this month said no lawmakers have signaled to her that their support for exports hinges on accompanying Jones Act changes (E&E Daily, July 15).
A GOP aide said the panel had received the letter and plans to coordinate with other committees as it works to advance the energy package.
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Oklahoma Asks Court for Stay of Clean Power Plan
Jul 28, 2015 | BNA Daily Environment Report
By Andrew Childers
Oklahoma asked a federal appellate court to stay the Environmental Protection Agency's Clean Power Plan until litigation over the proposed rule has been resolved (Pruitt v. McCarthy, 10th Cir., No. 15-5066, motion for stay 7/24/15).
“Absent an injunction pending appeal, Oklahoma will be forced to restructure its electric system in order to ‘keep the lights on,' harming the citizens of Oklahoma, and to continue making unrecoverable expenditures of public resources,” Oklahoma said in a motion July 24 to stay the rule filed in the U.S. Court of Appeals for the Tenth Circuit.
Oklahoma appealed after its challenge to the EPA Clean Power Plan (RIN 2060-AR33) was dismissed by the U.S. District Court for the Northern District of Oklahoma for lack of jurisdiction. (141 DEN A-3, 7/23/15).
The Clean Power Plan would set a unique carbon dioxide emissions rate for the power sector in each state, and state regulators would develop their own plans on how best to achieve those emissions goals. The EPA would issue federal plans for states that choose not to develop their own plans. The final rule is expected in August.
Oklahoma argued the stay is necessary because the EPA has not allotted sufficient time for states to comply once the rule is final, meaning states must begin making preparations now.
“Because the EPA Power Plan requires its goals to be met at a breakneck pace, and constructing and integrating new capacity is a years-long process, Oklahoma has no choice but to begin carrying out EPA's commands before EPA finalizes the plan,” the state said.
Oklahoma also joined 13 states in asking the U.S. Court of Appeals for the District of Columbia Circuit to rehear challenges to the EPA's proposal (In re: Murray Energy Corp., D.C. Cir., No. 14-1112, petition for rehearing, 7/24/15; 143 DEN A-2, 7/27/15).
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Despite Odds, Critics Continue Suits To Block Final Power Plant GHG Rule
Jul 27, 2015 | InsideEPA
By Dawn Reeves
Critics of EPA's looming greenhouse gas (GHG) rule for existing power plants are continuing their long-shot lawsuits to block the rule from being finalized, despite widespread assessment that the litigation faces insurmountable procedural hurdles as federal courts are unlikely to find they have jurisdiction to review the proposed version.
Oklahoma Attorney General Scott Pruitt (R) July 24 asked the U.S. Court of Appeals for the 10th Circuit to stop EPA from finalizing the existing source performance standards (ESPS), arguing that the measure -- expected as soon as the first week in August -- should be blocked while the state appeals the lower court ruling that found it lacks jurisdiction to review the proposed version of the rule.
“EPA's current plan to restructure the United States' energy economy through 'plant-to-plug' regulation under section 111(d) of the Clean Air Act is a textbook example of ultra vires activity, as the [Clean Air] Act expressly withholds from EPA authority to regulate power plants . . . under these circumstances. The district court's decision to defer review of that action to future litigation in the District of Columbia Circuit abrogates its obligation to exercise jurisdiction,” Pruitt charged in a July 24 motion in State of Oklahoma v. Gina McCarthy.
The filing adds that without an injunction the state “will be forced to restructure its electric system in order to 'keep the lights on,' harming the citizens of Oklahoma, and to continue making unrecoverable expenditures of public resources.'”
In addition, lawyers for coal mining firm Murray Energy, as well as several states led by West Virginia, July 24 asked the D.C. Circuit to rehear en banc their unsuccessful cases, In Re: Murray Energy and West Virginia et. al, v EPA, which also sought to block the proposed rule.
A three-judge panel had previously dismissed the cases as premature because the rule is not yet final but Murray and the states argue that rehearing is warranted because the decision “renders a broad category of agency misconduct judicially unreviewable.
“The panel's sweeping refusal to review EPA's extreme actions, in the face of three different potential vehicles, is contrary to controlling case law. By holding unequivocally that this Court has no authority in any of the cases, the panel majority has rendered all agency misconduct during rulemaking immune from judicial review -- no matter how harmful or unlawful,” their joint petitions say.
If the court rejects en banc review, then the petitioners ask the panel to stay its mandate putting its ruling into effect until the final ESPS is published in the Federal Register, an action that if granted would preserve what ESPS opponents believe is a favorable panel to hear the challenge over the final rule.
Staying the mandate “would permit this Court simply to leave for another day the question of this Court's authority to stop agency misconduct during a rulemaking,” the filings say.
While many observers have said such litigation is likely to fail, if only for the fact that the rule is likely to be final -- and judicially reviewable -- by the time the challenges are resolved, it signals the kind of litigation that critics of the ESPS are likely to pursue once the measure is promulgated.
Oklahoma's Opposition
Oklahoma is one of the states that is likely to join such suits, its governor having already signed an executive order that prohibits the state from submitting an ESPS compliance plan to EPA, and could seek to challenge the proposed version of the rule, filing its July 1 suit claiming that the state lacks any other options for “relief” from harms the proposal is already causing.
The action sought a declaration that EPA lacks authority under section 111(d) to regulate existing power plants, and asked for a preliminary injunction to prohibit EPA from finalizing or enforcing the rule.
Oklahoma filed the suit shortly after some state officials indicated they would seek pathways to challenge the ESPS outside of the D.C. Circuit, where they believe they may receive a more favorable outcome. For example, Arkansas Gov. Asa Hutchinson (R) said last month that he would seek another venue to challenge the rule while at the same time begin work on an implementation plan. “We'd like to get a venue outside of the D.C. (court) to take another crack at this issue,” he said.
In response to the Sooner State suit, Judge Claire Eagan of the U.S. District Court for the Northern District of Oklahoma quickly dismissed Pruitt's claim, ruling July 17 that the state had not shown the court it had jurisdiction to review the proposal and that plaintiffs would be able to make their case once the rule is final. She called the claims of irreparable harm “exaggerated” and said there is “no reason to believe that plaintiffs will have to wait long before renewing proceedings” in the D.C. Circuit, where she said they should challenge the final rule.
Oklahoma then quickly moved to appeal Judge Eagan's ruling, filing a July 20 notice that did not include any substantive details, but it also filed a motion with the district court seeking to enjoin EPA from finalizing the ESPS. A similar motion to the 10th Circuit, such as what was just filed, was considered to be the next step.
Oklahoma had also joined the suit led by West Virginia in the D.C. Circuit that challenged as unlawful a consent decree between EPA and environmentalists and committed the agency to writing GHG rules for the power sector. The West Virginia case, which was argued together with the Murray litigation, also asked the court to bar EPA from finalizing the ESPS until it ends regulation of utilities under section 112 where it limits mercury and other air toxics.
But the D.C. Circuit rejected that case in June, along with the suits brought by Murray Energy. In the injunction motion to the 10th Circuit, Oklahoma says it is likely to succeed on the merits of its challenge because, it says, the district court did have jurisdiction and because EPA's action is “plainly ultra vires” or beyond its powers. It adds that an injunction will not harm EPA because “it would do no more than preserve the status quo that has existed from the dawn of electricity generation in the United States allowing Oklahoma to continue to exercise its traditional policy discretion.”
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EPA Sets 2015 New Power Plant Emissions Allowances
Jul 28, 2015 | BNA Daily Environment Report
The Environmental Protection Agency issued its 2015 allocated emissions allowances for new power plants under the agency's cross-state air pollution rule, which regulates power plant emissions that cross state lines. The EPA's federal implementation plans for the cross-state rule reserve portions of each state's annual emissions budget for allocation to power plants that began operating after Jan. 1, 2010. The agency sets the allowances for sulfur dioxide and nitrogen oxide emissions in an annual allocation process. The EPA announced availability of the 2015 allowances in a notice scheduled for publication July 28. Spreadsheets containing the allocations for the sulfur dioxide, ozone season nitrogen oxides and annual nitrogen oxides trading programs are available at http://www.epa.gov/crossstaterule/actions.html.
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Ads, Rally Target Sen. Burr On Clean Power Plan
Jul 28, 2015 | E&E Daily News
By Josh Kurtz
The League of Conservation Voters yesterday began airing two TV ads that accuse Sen. Richard Burr (R-N.C.) of siding with polluters and urge him to support U.S. EPA's Clean Power Plan.
The ads are not campaign spots, even though Burr is up for re-election next year and is potentially vulnerable, but are simply a form of advocacy for the environmental group, which is spending about $100,000 to air them on satellite television.
They will be followed by a rally in the state capital of Raleigh on Thursday urging Burr, North Carolina Gov. Pat McCrory (R) and other Tar Heel State officials to support the Clean Power Plan, the Obama administration's signature proposal to reduce greenhouse gas emissions. A bill is making its way through the Republican-led state Legislature that would enable North Carolina to opt out of complying with EPA's rule, which is due to be finalized soon, until all legal challenges are exhausted.
One of the 30-second ads opens with scenes of happy families, with certain individuals disappearing from the screen to represent deaths caused by air pollution. It's followed by a picture of a pollution-belching smokestack.
"When Senator Richard Burr led the fight to let power companies release unlimited carbon pollution into the air ... he put polluters' profits ahead of your family's health," a narrator intones. "Tell Senator Burr to stop siding with polluters and vote for the Clean Power Plan."
The second 30-second ad opens with a woman talking to the camera about her son's battle with asthma.
"It's incredibly frightening for a parent to watch their child struggling to just breathe," she says. "He would do this thing where he'd grab kind of at his chest. When he was diagnosed with asthma, I had no idea that it was going to affect our lives this way."
Then an announcer comes on and says, "Senator Richard Burr voted repeatedly to let polluters dump unlimited carbon pollution into our air -- leading to more asthma attacks in children. Tell Senator Burr to support the Clean Power Plan."
According to the Associated Press, Burr's office responded yesterday with a statement decrying "one size fits all" federal regulations.
"This will not only be intrusive and costly, but will make it more difficult for North Carolina to continue to lead on this issue," the statement said of the Clean Power Plan.
Burr is seeking a third term in 2016, and while Democrats still cling to the hope that they can defeat him in a swing state with several close elections on tap, they do not have a single declared candidate running for the seat. Burr had more than $3.7 million in his campaign account as of June 30.
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Power Plant Rule Would Harm Rural Economies -- Co-Op Study
Jul 27, 2015 | E&E News PM
By Jean Chemnick
Rural America stands to lose more than urban America if U.S. EPA's Clean Power Plan drives power prices up, according to a paper released today by the National Rural Electric Cooperative Association.
The trade group for rural electricity nonprofits argued in its report that rural economies are more sensitive to rate fluctuations because they tend to run on energy-intensive industries like agriculture and manufacturing, rather than the service and financial sectors that tend to locate in urban areas.
Businesses in what the paper dubbed "Co-op Nation" -- areas of the country that are served by rural co-ops because they are too sparsely populated to entice for-profit utilities -- required 34 percent more power than industry elsewhere, the report said.
This means that if electricity prices climb 10 percent or 25 percent between now and 2040 -- as the paper suggests they will, in part because of the rule -- that would have a proportionally larger impact on rural regions than it would on urban areas. Those losses would trickle down to local businesses, reducing the tax base and impacting public-sector jobs, it said.
The study holds that a 10 percent increase in electricity prices would mean 1.2 million jobs lost in 2021 nationwide, with nearly 500,000 of those located in rural communities.
Rural co-ops have said they would like to see EPA include provisions in its final Clean Power Plan that will prevent them from having to prematurely retire their assets, especially if they are still paying for them. They argue that many co-ops are heavily invested in coal-fired generation because of past federal policies, and that they are smaller and less diversified then their for-profit counterparts, with little ability to absorb stranded assets and cost.
Kirk Johnson, NRECA's vice president for government relations, said he and other representatives from rural co-ops made that case during recent meetings with EPA and the White House's Office of Management and Budget ahead of the rule's release next month.
Johnson said he hoped to persuade the White House office to make changes to the rule during its final interagency review process. Recommended tweaks compared with the proposal included modifications to the so-called building blocks that EPA uses to calculate state reduction goals, changes to deadlines, and the idea of a new reliability safety valve to allow fossil fuel plants to remain online for additional years in some cases, he said.
"We don't see the overall structure of this changing," Johnson said. But OMB might be able to lower some requirements based on changes to some of EPA's building block inputs or change the dates to an interim compliance target, he said.
Some environmental and consumer rights advocates have criticized OMB's Office of Information and Regulatory Affairs in the past for substantially changing rules during its review. Johnson said he hoped OIRA would take a broader view of the rule's potential economic impacts than EPA might have done.
Lisa Johnson, CEO and general manager of Seminole Electric Cooperative in Florida, said after her own meeting with OMB and other administration staff earlier this month that the rule as proposed would force 27 of her state's 30 coal-fired power plants to shutter by 2020 to meet a tough interim target of 794 pounds of carbon dioxide per megawatt-hour. This would mean many of the state's power providers would have to retire relatively new generating units -- including those that have been upgraded recently to comply with other EPA rules, she said.
"We're generally supportive of proposals that talk about dealing with the stranded asset issue," she said.
Once the rule is final in the coming weeks, focus will turn to the role the states play in implementation.
Seminole's Johnson said states do have some latitude to craft their own plans for compliance, but they will have to walk a fine line between protecting state interests and submitting something that EPA will approve.
"I think that the states will have the ability to address the situation as they see fit," she said. "The question, I think, will be whether that will be agreeable to EPA."
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House, Senate Seek Careful Bipartisan Balance as Energy Bills Advance
Jul 27, 2015 | Roll Call
By Lauren Gardner
The House and Senate are taking slightly different approaches to moving energy bills through their chambers, but both have the same goal — to get President Barack Obama to sign bipartisan legislation reflecting the United States’ newfound position as a major energy producer.
But will it last in a Republican-controlled Congress that is eager to promote the domestic oil and gas boom while bucking efforts by the administration to address climate change?
Both bills aim to boost the reliability and resilience of U.S. energy infrastructure such as the electric grid and pipelines while promoting energy efficiency across the economy. The Senate bill stretches into renewable energy — declaring hydropower a clean resource for purposes of federal programs — while also hastening the Department of Energy permitting process for exporting liquefied natural gas overseas.
“This [House draft] bill is a reasonable start, but it is by no means complete,” House Energy and Commerce ranking Democrat Frank Pallone Jr. of New Jersey said during last week’s subcommittee markup.
So far, neither chamber’s committee is touching the most controversial energy issues that would be sure to roil Democrats and possibly derail any compromise. Language approving the Keystone XL pipeline, lifting the ban on crude oil exports and delaying or blocking the Environmental Protection Agency’s Clean Power Plan doesn’t appear in either the Senate or House measure, though the EPA does not fall under the Senate panel’s jurisdiction.
But it will likely be difficult to maintain the delicate balance between keeping poison-pill provisions off the bills while achieving GOP policy priorities — especially in the House Energy and Commerce Committee, which has a history of moving energy legislation without the support of the minority.
“The product that you have before you is a product of common ground,’’ Senate Energy and Natural Resources Chairwoman Lisa Murkowski told reporters last week. “You will note that there’s a lot of things that you might have expected a Republican from Alaska to include in a bill that has my name on it,” citing the exclusion of language to open the Arctic National Wildlife Refuge to oil and gas drilling.
“But I also acknowledge that a base bill that’s going to be a bipartisan bill must be something that has support from all sides,” she added.
As talks with Democrats continue, the House bill is a more modest effort than committee Republicans originally intended, and they are still interested in addressing issues such as electric capacity markets, crude oil exports and efficiency standards for buildings, House Energy and Power Subcommittee Chairman Edward Whitfield, R-Ky., said after the July 22 markup.
“We’re just going to make a good-faith effort through staff and even members trying to address some of these issues and make this bill more comprehensive than what it is today,” he said.
Murkowski has promised an open amendment process during this week’s markup of her comprehensive energy legislation, and she’s looking to another committee’s recent legislative process for inspiration.
Murkowski told reporters on July 23 she’s made it clear to her colleagues she wants to move a bipartisan bill out of committee, as she aims to be the first panel leader to advance a major energy policy bill since 2007.
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Green Groups Come Out Against Senate Energy Reform Bill
Jul 27, 2015 | The Hill - E2 Wire
By Devin Henry
Eleven major environment and conservation groups came out against a Senate energy policy overhaul bill on Monday.
The groups — a list that includes major players like the Sierra Club, Natural Resources Defense Council and the League of Conservation Voters, among others — said there “several provisions in this bill that we believe could cause detrimental effects to public health and our environment.”In a letter to Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) and ranking member Maria Cantwell (D-Wash.), the groups listed ten sections of the 357-page bill that they said put environmental causes at risk.
Among them are provisions to speed up permitting for liquefied natural gas exports and mining operations, a section repealing a fossil fuel phase-out for federal buildings and changes to hydropower regulations that they say could put fish and wildlife at risk.
The groups said the bill could endanger Environmental Protection Agency public health programing and argued it doesn’t go far enough to invest in clean energy and reduce greenhouse gasses.
“Unless these concerns are addressed, we are unable to support this bill,” the groups said in their letter, which comes before the Energy and Natural Resources Committee begins marking up the bill on Tuesday.
Opposing the bill puts the groups at odds with Cantwell, a Democrat who helped write the legislation.
The Senate’s energy reform bill is a bipartisan package, the product of months’ worth of hearings and negotiations between Murkowski and Cantwell and their staff. The two are co-authors of the legislation and publicized its introduction last week.
The green groups acknowledged that bipartisan work in their letter, and praised a handful of provisions in the bill, including reauthorization for a conservation program and efforts to boost the energy grid and energy efficiency.
“Authoring a bill of such complexity in a bipartisan manner is a truly impressive accomplishment,” the groups wrote, “but that does not justify removing key environmental protections.”
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Green Groups Split With Cantwell on Senate Energy Bill
Jul 27, 2015 | National Journal
By Ben Gemen
Several prominent environmental groups are balking at a major energy bill crafted in part by the top Democrat on the Senate Energy and Natural Resources Committee.
A letter from 11 groups ahead of Tuesday's committee markup shows how difficult it will be for lawmakers to avoid the political pitfalls that have doomed various energy bills in recent years.
The Sierra Club, the League of Conservation Voters, the Environmental Defense Fund, the Natural Resources Defense Council, and others attacked "several provisions in this bill that we believe could cause detrimental effects to public health and our environment."
Last week, Committee Chairwoman Lisa Murkowski and Maria Cantwell, the panel's top Democrat, unveiled the wide-ranging "Energy Policy Modernization Act," which addresses a range of issues that include energy efficiency, infrastructure modernization, renewable energy, and critical minerals mining.
In a bid to garner broad support for the bill, Murkowski said that she and Cantwell deliberately shied away from more controversial issues such as the Keystone XL pipeline or climate change.
But even a slimmed-down measure didn't pass muster with the green groups. They balked at 10 specific provisions, including sections on expediting liquefied natural-gas exports, ending a mandate to phase out fossil fuels in federal buildings, altering certain Energy Department efficiency programs, and expediting certain mineral mining permits
Beyond complaints about specific sections, the letter says the bill needs a "stronger vision for accelerating the development and deployment of clean energy."
The groups are bullish on several aspects of the legislation, including efforts to extend the Land and Water Conservation Fund, as well as programs that support energy efficiency and better equip the electric grid to handle more renewable energy.
An aide to Cantwell cautioned that there will be chances to alter the legislation, but did not provide an immediate response to the green groups' specific complaints.
"We acknowledge that the bill isn't perfect; most bipartisan bills can't be perfect, given they are compromises by their very nature. We hope that the amendment process will allow us the opportunity to improve the bill," said Rosemarie Calabro Tully, Cantwell's committee spokeswoman.
Jason Plautz contributed to this article.
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Industry Groups Launch Campaigns Against Ozone Proposal
Jul 28, 2015 | E&E Daily News
By Amanda Peterka
As Congress nears its August hiatus, industry and business groups this week are launching campaigns targeting U.S. EPA's proposal to tighten the national ozone standard.
The National Association of Manufacturers today launched what it said was a multimillion-dollar ad buy in the Washington, D.C., region warning that a stricter standard would be tough to achieve. Later this week, NAM and the Chamber of Commerce will lead a coalition of organizations running ads in Beltway publications.
In August, the organizations plan to target several areas around the country and meet with local policymakers.
"It's all systems go for us," said Ross Eisenberg, NAM vice president of energy and resources policy. "We are at a point where we are going to be using every single one of the faculties and devices available to us as an advocacy organization."
In November, EPA proposed to tighten the national ambient air quality standard for ozone from 75 parts per billion to between 65 and 70 ppb. EPA said that the 75-ppb limit -- set in 2008 during the George W. Bush administration -- was no longer adequate to protect the public against harmful health effects linked to ozone pollution.
Public health organizations have called on the agency to set an even tighter limit at 60 ppb, pointing to studies that have found negative health effects at higher levels. Under the Clean Air Act, EPA must set a new national ambient air quality standard at a level that provides the public with an adequate margin of safety.
Industry organizations, however, have warned that a stricter standard would come with high compliance costs and be difficult to achieve.
NAM's Eisenberg said that the time was ripe for the newest campaigns on ozone. EPA plans to finalize the rule by Oct. 1.
"Members are going home for the recess," he said. "We want to make sure that this remains on top of their issue priority list. If not now, when?"
The TV ad that will launch today and run for the next two weeks warns that national parks face compliance issues with a tighter standard because of background ozone levels. Neither NAM nor the chamber shared details yesterday on the new print ads that are slated to run later this week.
Next month, as Congress is out of session, several industry and business organizations plan to hit the road to advocate for EPA to retain the current ozone standard and to meet with local officials. Under the Clean Air Act, states and local regulatory agencies will be held responsible for meeting a tighter standard.
The Chamber of Commerce plans to soon roll out a report focusing on how a tighter standard could affect transportation planning in the Las Vegas region, according to Senior Director of Communications Matt Letourneau.
It's the second report in a series that will ultimately span five metropolitan areas; last week, the chamber released its first report on the D.C. area (Greenwire, July 22). Letourneau said that the chamber is targeting Las Vegas in its report because it faces issues with background ozone and a growing population.
"The high-growth areas are having trouble because obviously the more people that you add, the more ozone that they emit," he said, "and so, in a way, the way the rule's structured is going to punish places that are adding people."
The Center for Regulatory Solutions, a project of the Small Business and Entrepreneurship Council, plans to also focus on local areas in the coming weeks. Earlier this month, the center issued a report that focused on the potential impacts of EPA's proposal on the Chicago area (Greenwire, July 13).
"Over the August recess, we will be highlighting the costly impacts the administration's ozone regulation will have on states across the country," said Karen Kerrigan, president of both the SBE Council and the Center for Regulatory Solutions. "From Colorado to Virginia, community leaders are expressing real concerns about EPA's proposal, which is the most costly regulation in history."
Eisenberg said that NAM has been doing a "tremendous amount of outside-the-Beltway education" and that the group has found that the local policymakers' awareness of the upcoming rule is varied.
Letourneau at the Chamber of Commerce said that local officials have been more focused on the Clean Power Plan, which EPA has proposed to stem carbon dioxide emissions from existing power plants. The agency plans to finalize the rule in the coming weeks.
"I think there's so much attention on the power plant rule that ozone has kind of been in the background a little bit," Letourneau said. "It's moving on a similar timeline and tracks."
Environmental and public health groups urging a tighter standard say that industry groups are overstating the costs of compliance. In a regulatory impact analysis last year, EPA found that the health benefits of the proposed rule would outweigh costs by a margin of 3-1.
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Major Brands Support Strong Climate Agreement
Jul 28, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Executives from 13 of the largest and most recognizable U.S. brands—including Apple, Bank of America and Walmart—met with White House officials July 27 to voice support for a strong climate deal at an international summit in Paris later this year.
“We think that Paris is a great opportunity to drive expectations and transformation,” Rob Bernard, Microsoft's chief environmental strategist, said in a July 27 briefing with reporters. Bernard added that “having certainty on a worldwide level of where multiple countries, not just the United States, stand on the future would be a great thing.”
The companies also committed to reduce their carbon footprints and make at least $140 billion in low-carbon investments. Microsoft, which has been carbon neutral for three years thanks to an internal carbon fee, said it would continue to offset its emissions and purchase 100 percent renewable energy.
Fellow carbon-neutral tech giant Google vowed to triple its renewable power purchases over the next decade.
“We're serious about environmental sustainability not because it's trendy, but because it's core to our values and also makes good business sense,” Google executive chairman Eric Schmidt wrote in a blog post.
The White House hopes the companies' commitments will snowball into other sectors of the economy, especially the power sector, as the climate treaty negotiations near. Among the companies signing on so far, there is only one energy company, owned by Berkshire Hathaway.
Companies Spreading the Word
“We're going to ask the companies that are here today to help us spread the word and encourage their counterparts, their supply chains to think seriously about making commitments here as well,” Brian Deese, one of the president's top climate advisers, said during the briefing. Deese said the White House plans to unveil a second round of corporate pledges in the fall.
The Obama administration has committed to slashing the nation's greenhouse gas emissions 26 percent to 28 percent by 2025 as its contribution toward the Paris deal, which would for the first time commit both developed and developing nations to act on climate change. The pledge is dependent on executive actions—including proposed limits on carbon pollution from power plants that have become the target of legislators in the Republican-controlled Senate, who have also threatened to undercut the global climate agreement in some way (96 DEN B-1, 5/19/15).
When asked why she wanted to speak out on such a hotly debated topic, Rhonda Clark, chief sustainability officer at UPS, said climate change is both a risk and an opportunity “and, fortunately for us at UPS, we see more of an opportunity for the future than we see a risk.”
“So we're happy to stand in front and talk about our commitments and how we plan to move forward,” she said outside the White House after meeting with Deese and other senior administration officials. As part of its commitment, UPS said it would double its current carbon intensity goal from a 10 percent cut by 2016 to a 20 percent cut by 2020.
Kevin McKnight, chief sustainability officer at aluminum maker Alcoa, also came out in support of the administration's climate initiatives, in particular, fuel economy standards for cars and trucks.
“My position here is that Alcoa provides products that have the potential to substantially help companies” meet those standards, he said in the briefing, by making automobiles lighter and thus more fuel-efficient. By 2025, the company wants to reduce emissions from the use of its products by an amount equal to three times the emissions created by their production.
The other signatories to the pledge were Cargill, Coca-Cola, General Motors, Goldman Sachs and PepsiCo.
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Environmental Group Sues Over Colorado's Haze Plan
Jul 28, 2015 | BNA Daily Environment Report
By Tripp Baltz
WildEarth Guardians is petitioning a federal appeals court to review the Environmental Protection Agency's approval of Colorado's plan for dealing with regional haze (WildEarth Guardians v. EPA, 10th Cir., No. 15-9553, 7/24/15).
The environmental group filed its legal challenge July 24 under the Clean Air Act in the U.S. Court of Appeals for the Tenth Circuit, seeking to overturn EPA Administrator Gina McCarthy's May 26 approval of the Colorado state implementation plan for addressing regional haze.
The EPA reissued its final approval of Colorado's SIP revision submitted in May 2011 with respect to the state's best available retrofit technology determination for the Comanche generating station, a 1,400-megawatt coal-fired power plant near Pueblo, Colo.
The EPA originally had given final approval to the Colorado regional haze SIP on Dec. 31, 2012. In response to a petition for review of that final action in the Tenth Circuit, the EPA successfully moved for a voluntary remand, without vacatur, to respond more adequately to public comments concerning Comanche.
The EPA provided new responses to the comments in the rulemaking notice, which was effective June 25, 2015, it said.
WildEarth Guardians and the National Parks Conservation Association originally petitioned the Tenth Circuit in February 2013, challenging EPA approval of Colorado's BART determinations for two units at Comanche, in addition to other units. The agency later reached a settlement with the two environmental groups concerning their claims.
The EPA is reviewing the petition, Rich Mylott, spokesman for EPA's Region 8 office in Denver, told Bloomberg BNA July 27.
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Hillary Clinton Lays Out Climate Change Plan
Jul 27, 2015 | The New York Times
By Trip Gabriel and Coral Davenport
Setting ambitious goals for producing energy from the sun, wind and other renewable sources, Hillary Rodham Clinton seized on an issue Monday that increasingly resonates with Democratic voters and sets up a stark contrast with the Republican presidential field.
With many Republican candidates saying they do not believe that climate change is a threat or requires government intervention, Mrs. Clinton assailed their logic, saying, “The reality of climate change is unforgiving no matter what the deniers say.”
She set a goal to produce 33 percent of the nation’s electricity from renewable sources by 2027, up from 7 percent today — a higher goal than the 20 percent that President Obama has called for by 2030.
Mrs. Clinton’s strategists see climate change as a winning issue for 2016. They believe it is a cause she can advance to win over deep-pocketed donors and liberal activists in the nominating campaign, where she is facing Democratic challengers to her left on the issue. It is also one that can be a weapon against Republicans in a general election. Polls show that a majority of voters support candidates who pledge policy action on the warming climate. Continue reading the main story Who Is Running for President?
Mrs. Clinton called for installing a half-billion solar panels by 2020, a sevenfold increase from today, and to generate enough energy from carbon-free sources within 10 years of her inauguration to power every home in America.
Republicans criticized the proposal as an “energy poverty” agenda that could raise utility bills and lead to blackouts. Policy analysts said it could be tough for Mrs. Clinton to follow through on such ambitious goals.
While Mr. Obama’s climate change goals, driven by regulations from the Environmental Protection Agency, would lift the nation’s renewable power to about 20 to 25 percent, according to E.P.A. estimates, the rest of the increase, experts said, will be impossible without new laws requiring renewable power. Congress has failed over the past decade to pass such laws.
The Clinton campaign emphasized that her targets cleared a bar set last week by the billionaire environmentalist Tom Steyer, who spent $74 million on political races in 2014. He announced that for candidates to receive his support in 2016, they must offer policies that would lead the nation to generate half its electricity from clean sources by 2030, and 100 percent by 2050.
Former Gov. Martin O’Malley of Maryland, who has made climate change the center of his Democratic presidential campaign, laid out a plan last month that meets the criteria, winning Mr. Steyer’s blessing. Senator Bernie Sanders of Vermont, who has called for a tax on carbon emissions, draws thunderous applause at rallies by promising bold action to combat climate change.
Although Mrs. Clinton has emphasized fighting global warming as a priority in earlier speeches, the role of a single large donor, Mr. Steyer, in apparently influencing the details of her proposal was suggested by her press secretary, Brian Fallon. On Twitter he said, “Counting nuclear, as Steyer does, she exceeds his 50 percent goal” for 2030.
But Mrs. Clinton showed some limits to how far she would go to address climate change by refusing to say, once again, if she opposed the Keystone XL pipeline — a litmus test for grass-roots environmentalists. The pipeline would deliver oil from the oil sands of northern Alberta in Canada to Texas.Recusing herself because she had played a role as secretary of state in evaluating the pipeline, Mrs. Clinton said the decision was in the hands of the Obama administration. Mr. Sanders and Mr. O’Malley oppose the pipeline.
Just as liberal Democrats have tried to pull Mrs. Clinton to the left on economic issues, environmental groups have sought stronger statements from her opposing hydraulic fracturing, oil trains and drilling in the Arctic.
Anti-Keystone protesters have greeted Mrs. Clinton on the campaign trail in New Hampshire and even outside a May fund-raiser for her at Mr. Steyer’s home in San Francisco overlooking the Golden Gate Bridge.
“Hillary Clinton is just half the way there,” said Bill McKibben, head of the group 350.org, which has led the grass-roots movement calling for Mr. Obama to reject the Keystone pipeline. “This is a credible commitment to renewable energy, and a recognition that the economics of electricity are changing fast. Now, we need Clinton to show she understands the other half of the climate change equation — and prove she has the courage to stand up against fossil fuel projects like offshore and Arctic drilling, coal leasing in the Powder River basin, and the Keystone XL pipeline.” Continue reading the main story First Draft Newsletter
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Without offering specifics, Mrs. Clinton promised that in coming months she would unwrap additional climate policies, including aid to workers in coal-producing regions who suffer economic harm.
“I am going to set ambitious goals, and I am going to have a real plan that will enable us to meet those goals,” Mrs. Clinton said.
Her campaign put the cost of her clean electricity initiatives at about $60 billion over 10 years, which it said would be offset by ending tax breaks for oil and gas producers.
“We’ll stop the giveaways to big oil companies and extend, instead, tax incentives for clean energy, while making them more cost-effective for both taxpayers and producers,” Mrs. Clinton said.
Experts said there would be more practical challenges.
“It’s an ambitious goal. It will be a big lift to get there,” said Anthony Paul, a fellow at Resources for the Future, a nonpartisan research organization.
Mr. Paul suggested that in order to meet Mrs. Clinton’s goals, Congress would have to mandate production of renewable power, or to tax greenhouse gas pollution — both proposals that have floundered on Capitol Hill.
Republicans were quick to criticize the proposals. “Hillary Clinton’s energy plan is to raise more taxes and double down on President Obama’s E.P.A. overreach, which held down wages and cost American jobs,” said Michael Short, a spokesman for the Republican National Committee.
Mrs. Clinton’s campaign chairman, John Podesta, was the architect of Mr. Obama’s signature climate change policy, a set of E.P.A. regulations to cut carbon emissions from power plants. Mrs. Clinton’s new plan appears explicitly designed to build on that plan.
While running for re-election in the 2012 campaign, Mr. Obama almost never mentioned climate change. But Democratic strategists say they now see it as a resonant campaign issue.
A January poll conducted by The New York Times, Stanford University and Resources for the Future found that two-thirds of Americans said they were more likely to vote for political candidates who campaign on fighting climate change.
“This issue now polls better than any other issue for Democrats,” said Paul Bledsoe, a former top climate change official in the Clinton administration. “It’s in Clinton’s interest to talk about the issue, both for primary voters and to highlight Republican vulnerabilities in the general election.”
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The Holes In Clinton’s Climate Plan
Jul 27, 2015 | PoliticoPro
By Elana Schor
Hillary Clinton’s newly unveiled climate vision sounds ambitious on its face: 500 million new solar panels from coast to coast, eco-minded energy tax breaks and enough green power to keep the lights on in every U.S. home.
But just as glaring were the details she left out.
Does Clinton support or oppose the Keystone XL oil pipeline? Or Arctic offshore drilling? Or tougher restrictions on fracking? Or the oil industry’s push to lift the 1970s ban on exporting U.S. crude oil? Clinton avoided all those questions in the solar-heavy climate plan she outlined Sunday night, and in her speech promoting it Monday in Iowa — and she declined yet again Monday to say where she stands on Keystone.
That means that liberals longing for Clinton to erase what they see as the dirtiest spot on President Barack Obama’s environmental record — his support for an “all-of-the-above” energy strategy that includes domestic oil and gas drilling — have to keep waiting. Greens want to cheer for Clinton, but Democratic rivals Bernie Sanders and Martin O’Malley are already trying to outflank her with even more ambitious climate plans, while the GOP attacks her from the right.
“Clinton’s climate plan is remarkable for what it doesn’t say, yet,” California-based environmental activist R.L. Miller, who founded the Climate Hawks Vote PAC, said in a statement. Specifically, she added, Clinton offered “no effort to keep fossil fuels in the ground, no price on carbon; no word on Keystone XL, Arctic oil or other carbon bombs; no word on fracking.”
Climate activists are also looking for the Democratic front-runner to put some distance between herself and her record at the State Department, which issued a series of studies finding no significant environmental obstacles to approving Keystone.
“We’re expecting a reset” of the former secretary’s platform, Sierra Club Executive Director Michael Brune said in an interview, “and a completely different climate and energy policy than the last time she ran for president.”
While Clinton’s pitch to boost renewables to a 33-percent share of the nation’s power supply is “a positive first step,” Brune added, “we’re looking for her to reconcile her climate and energy policies, which is something Obama has not yet been able to do effectively.”
Even a largely glowing response from billionaire climate activist Tom Steyer made a point of noting that “in the coming months we look forward to hearing more details about her proposals.”
Clinton’s campaign said that by design, the steps she outlined Sunday and Monday are not “the sum of her plan,” but are just the first piece of a broad environmental platform. “We made clear these goals were just the first pillars of her larger climate and energy agenda,” a campaign spokesman said, writing to POLITICO that “even many of the activists you quote seem to understand that.”
In the coming months, Clinton’s campaign said in a fact sheet, she plans to outline steps that will include reducing oil consumption, modernizing the electric grid and aiding “coal communities.”
At the core of the tension is climate activists’ insistence that the next president go beyond defending Obama’s main approach to global warming — a series of EPA regulations that will throttle carbon emissions from major pollution sources such as power plants. Instead, they want Obama’s successor to commit to reining in an oil and gas industry that has turned the U.S. into one of the world’s top fuel exporters.
Anti-fossil fuel campaign group Oil Change International’s campaigns director, David Turnbull, warned that greens are looking for a candidate with a plan to keep oil and gas locked up, not just expand wind and solar projects.
“Any coherent climate policy needs to address not just our urgent need to continue scaling up renewable energy but also the reality that fossil fuel production needs to be swiftly curtailed as well,” he said.
Clinton’s campaign described Monday’s speech as “just the beginning” of a broader energy plan, promising future proposals to cut U.S. oil use — without mention of natural gas consumption — and ensure “safe and responsible” drilling by putting some lands off-limits. But the former first lady has already declined to endorse a ban on fossil-fuel development on public lands, which O’Malley has backed, and she hewed to a years-long pattern in declining to take a position on Keystone.
O’Malley’s deputy campaign manager, Lis Smith, slammed Clinton again Monday for avoiding Keystone, and for failing to publicly oppose drilling off the Alaska coast.
“Real leadership is about forging public opinion on issues like Keystone — not following it,” Smith said in a statement that touted O’Malley’s goal of 100-percent clean power by 2050. ”Every Democrat should follow his lead and take a stand to commit to ending our reliance on fossil fuels.”
Republican National Committee spokesman Michael Short also hit Clinton over her Keystone silence, but the GOP took the criticism a step further by trashing her renewable-power plan as lacking detail yet loaded with inevitable tax hikes. “Hillary Clinton’s energy ‘plan’ is to raise more taxes and double down on President Obama’s EPA overreach,” Short said in a statement.
The Clinton camp estimates that its proposal, which calls for installing 500 million solar panels across the U.S. by the end of her term, would cost about $60 billion over 10 years — money that would come from rolling back tax benefits for the oil and gas industry. But it’s unclear where at least $20 billion of that money would come from.
Democrats have unsuccessfully targeted an array of oil and gas breaks for repeal over the past four years, with estimates of the money raised in the process going as high as $4 billion per year, or $40 billion over 10 years, leaving Clinton short by one-third at best. A failed 2012 Democratic bill ending oil and gas subsidies would have raised $24 billion over 10 years, according to the Congressional Budget Office.
The Clinton campaign said recent scores from the Congressional Budget Office and the Joint Committee on Taxation “show that it will be possible to offset most of the cost of Hillary Clinton’s clean energy challenge. The remainder will be covered by additional revenue raisers and loophole closures related to the oil and gas industry.”
Environmentalists mainly welcomed Clinton’s announcement as a promising start.
The Clinton campaign did not return a request for comment on how it would close the gap in paying for its renewable-energy plan, and on its future oil and gas agenda.
Heather Taylor-Miesle, director of the Natural Resources Defense Council Action Fund, said her group is “excited about” the opening bid from Clinton, while acknowledging that “we have to deal with oil and gas” and that environmentalists won’t know how to judge the candidate’s plan in that department until she reveals it.
Even 350.org co-founder Bill McKibben, who aimed a torrent of anti-Keystone activism at Clinton’s State Department and warned her in June that “many serious environmentalists currently distrust you,” said her first crack at a climate plan got “half the way there.”
“Now, we need Clinton to show she understands the other half of the climate change equation — and prove she has the courage to stand up against fossil fuel projects like offshore and Arctic drilling, coal leasing in [Wyoming’s] Powder River basin and the Keystone XL pipeline,” he added in a statement.
After Clinton said Monday that she couldn’t speak on Keystone “because I had a leading role in” the pipeline’s administration review, McKibben said by email that her rationale was “silly” because “she’s rightly full of insights about Iran, about Benghazi, about Korea, about a thousand other ongoing issues the State [Department] processes daily.”
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Clinton Steers Clear Of Keystone
Jul 27, 2015 | PoliticoPro
By Hadas Gold
Despite rolling out a set of climate change goals Sunday night, Hillary Clinton declined once again to take a position on the proposed Keystone XL pipeline on Monday, deferring to the State Department.
After touring a green-certified transit station in Des Moines, Clinton told reporters that she wouldn’t comment on the pipeline because she had played a leading role in starting the process to review the project while she was secretary of state.
“No other presidential candidate was secretary of state when this process started, and I put together a very thorough deliberative evidence-based process to evaluate the environmental impact and other considerations of Keystone,” Clinton said.
“As such, I know there is a very careful evaluation continuing and that the final decision is pending to be made by Secretary Kerry and President Obama. Very simply, the evaluation determines whether this pipeline is in our nation’s interest and I’m confident that the pipeline impacts on global greenhouse gas emissions will be a major factor in that decisions, as the president has said. So I will refrain from commenting because I had a leading role in getting that process started and I think we have to let it run its course,” she said.
On Sunday evening, Clinton rolled out the first elements of her climate change platform, calling for moving the economy on “a path towards deep decarbonization by 2050” and “enough clean renewable energy to power every home in America” by 2027.
On Monday, Clinton said she will soon lay out a plan for how to pay for her goals but that she intends to be a “good fiscal steward” for investments that will pay off in the future.
“A lot of these changes will pay for themselves. So there will be front-end money needed,” Clinton said. “But there are ways of making those investments and getting a return on those investments that will redound to the benefits of the American taxpayer. So I will be talking about energy and climate security, modernizing North American infrastructure, about safe and responsible production, especially making sure tax payers get a fair deal for development on public lands and areas that I think are too sensitive for production that should be taken off the table.”
Clinton also said she would stop the “giveaways to big oil companies” and extend tax incentives to clean energy.
As for convincing a possible Republican-controlled Congress to join on the climate change bandwagon, Clinton said she hopes to be able to call for a “ceasefire” on climate change.
“Making this a central issue in my campaign, I hope, will give me the momentum to be able to go to the congress and say, ‘Look, cease fire.’ We need to make the transition and we can do it and save money at the same time and create millions of new jobs and businesses that will be to the benefit of our country, so stay tuned,” Clinton said.
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Dem Opponents Use Clinton Energy Plan To Tout Their Own
Jul 27, 2015 | E&E News PM
By Jennifer Yachnin
Democratic presidential front-runner Hillary Clinton is focused on solar power in her new energy platform, but her rivals for the Democratic nod see an opportunity to throw some shade.
In the wake of Clinton's unveiling of her energy platform -- which focuses heavily on increasing the nation's solar capacity by 2020 and ensuring that renewable energy sources contribute to at least a third of the nation's energy generation -- candidates for the Democratic presidential nomination, including Vermont Sen. Bernie Sanders (I) and former Maryland Gov. Martin O'Malley, have used the media spotlight to highlight their own plans, typically touting their more aggressive stances on issues like fossil fuel production.
Although Clinton has vowed to end tax benefits to the fossil fuel industry and cut off oil and gas development on public lands that she said are too sensitive for production, she refused earlier today to reject or endorse construction of the Keystone XL oil pipeline (Greenwire, July 27).
A top aide to O'Malley, who has vowed to make a nationwide shift to renewable energy by 2050 his top priority if elected to the White House, chided fellow Democrats -- without naming Clinton directly -- for not embracing the same standard.
"Governor O'Malley is opposed to the Keystone XL pipeline because we can't move to a clean energy future if we continue to rely on dirty, short-term fossil fuel fixes," Deputy Campaign Manager Lis Smith said in a statement. "Real leadership is about forging public opinion on issues like Keystone -- not following it. Every Democrat should follow his lead and take a stand to commit to ending our reliance on fossil fuels."
Sanders, who has been a prominent critic of the KXL pipeline and the fossil fuel industry in general, also issued a series of statements on social media accounts today highlighting his own energy platform.
"The fossil fuel industry is destroying the planet with impunity and getting rich while doing it," Sanders' campaign stated on Twitter this afternoon.
Earlier in the day, his campaign posted a similar message to its Facebook account.
"The simple truth is that if we do not act boldly and quickly, these problems will only get much worse in the years to come," Sanders said. "Global warming is the greatest environmental threat facing the planet and averting a planetary disaster will require a major reduction in the burning of coal, oil and other fossil fuels."
It remains to be seen whether Clinton's energy proposals will sway environmentalists who have criticized her refusal to oppose the Keystone XL pipeline. Clinton has said that because the government's review process began during her tenure as secretary of State, it would be inappropriate for her to weigh in on the matter.
Bill McKibben, founder of the environmental group 350.org, praised Clinton's recent statements but said she must still oppose production of fossil fuels.
"Hillary Clinton is half the way there. This is a credible commitment to renewable energy, and a recognition that the economics of electricity are changing fast," McKibben said in a statement. "Now, we need Clinton to show she understands the other half of the climate change equation. ... Because at the end of the day, growth in renewables doesn't mean enough if we're simultaneously kicking the decarbonization can down the road with more pipelines and more extraction on public lands."
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Support Documents for Water Rule ‘Flawed’: Corps Memo
Jul 28, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
The economic analysis and the technical support documents used in developing and justifying a regulation to clarify the scope of the Clean Water Act are flawed and out of context, the U.S. Army Corps of Engineers said in memos just before the rule was released.
“To briefly summarize: our technical review of both documents indicate the corps data provided to EPA has been selectively applied out of context, and mixes terminology and disparate datasets. In the corps' judgment, the documents contain numerous inappropriate assumptions, with no connection to the data provided, misapplied data, analytical deficiencies, and logistical inconsistencies,” Maj. Gen. John Peabody, deputy commanding general for civil and emergency operations, told Jo-Ellen Darcy, assistant U.S. secretary for the Army for civil works, in a May 15 memo.
The top regulatory and legal corps officials also said the rule would be “legally vulnerable” and “difficult to implement.”
The memo and other documents related to the final regulation (RIN 2040-AF30) were reviewed by Bloomberg BNA on July 24 and 27. The clean water rule was jointly published on June 29 by the corps and the Environmental Protection Agency. It has since been challenged by states, industry and environmental groups (80 Fed. Reg. 37,054).
To back his claims, Peabody attached a review of the rulemaking's economic analysis and the technical support document (TSD) by the corps' economist, Paul Scodari.
“The corps had no role in selecting or analyzing the data that the EPA used in drafting either document,” Scodari said. “As a result, the documents can only be characterized as having been developed by the EPA and should not identify the corps as an author, co-author or substantive contributor.”
Implying or portraying otherwise is “simply untrue,” Scodari said. He said the corps merely provided raw data to the EPA, which, in turn, chose to use the data to justify the benefits of the rule, estimate costs for mitigation in states where no mitigation programs exist, account for waters not previously identified by the corps and represent geographical regions that the data didn't support.
For the economic analysis document, Scodari said the corps provided the EPA with raw dredge-and-fill permitting data under Section 404 of the Clean Water Act spanning fiscal years 2009 to 2014. The corps also provided the EPA with both preliminary and approved jurisdictional determinations for the given years.
Data Used ‘Out of Context.'
Peabody also included a separate memo by Jennifer Moyer, chief of the corps' regulatory programs.
“Section 404 data provided to the Corps has been used out of context as if it were applicable to all Clean Water Act programs despite the fact that this data is only meaningful for a specific authority under the Clean Water Act (Section 404) and does not represent data under sections 303, 401, 402, or other programs implemented by the EPA and states for different purposes under the Clean Water Act,” Moyer wrote.
Under the Clean Water Act, Section 402 governs the National Pollutant Discharge Elimination System permitting program, Section 401 gives states the authority to certify that federal hydropower projects meet state water quality standards, Section 303 governs the oil and hazardous chemical spill programs and Section 301 governs water quality standards.
Regarding the technical support document, Moyer was equally critical.
“It appears EPA used a considerable amount of corps data in preparing the TSD; no data was requested or provided to the EPA to produce the TSD; the corps also had no role in performing the analysis or drafting the TSD,” she wrote.
Overestimating Jurisdictional Determinations
As an example, Moyer said the document overestimated the case-specific determinations the corps has completed since 2008.
The technical support document cited the figure of more than 500,000 jurisdictional determinations of which more than 50 percent have involved case-specific determinations to ascertain a significant nexus with downstream navigable waters. In reality, Moyer said, the corps has completed 424,000 jurisdictional determinations of which 17 percent involved significant nexus evaluations.
A landowner or property owner seeks a jurisdictional determination to find out whether a given wetland or water falls under the Clean Water Act and therefore is subject to federal water pollution programs. Under the final rule, the EPA and the corps have sought case-by-case determinations for isolated waters that fall within the 100-year floodplain and within 4,000 feet of the ordinary high water mark of a traditional navigable water, interstate water or territorial sea.
Questioning ‘Arbitrary' Threshold Limit
Both Moyers and Scodari questioned what they termed the “arbitrary” use of the 4,000-feet threshold limit to evaluate federal jurisdiction.
Darcy for her part told Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, that the May 15 and April 27 memos by Peabody weren't released outside the Army, but the contents were discussed in detail with the EPA and other federal agencies when the White House Office of Management and Budget began the interagency review April 3.
She urged Inhofe not to release the documents to the public. Inhofe acknowledged Darcy's request by not releasing the memos publicly, but questioned her in a July 27 letter about the corps' actual support for the rulemaking by quoting various sections of the documents in question.
The corps declined to comment on July 27 on analyses done by its top regulatory and legal officials that show the final clean water rule to be flawed from a legal and practical standpoint.
“Due to the ongoing litigation, we are not commenting on the draft final rule at this time,” corps spokesman Doug Garman told Bloomberg BNA in a July 27 e-mail.
EPA Sidestepped Questions Related to Memos
The EPA in turn sidestepped questions concerning the substance of the memos. Corps officials were unsparing in their criticism of the agency for moving ahead with the rulemaking despite it being flawed.
“As with any multiagency rulemaking, the EPA and Army/Corps worked closely and carefully to make sure that all concerns surrounding the Clean Water Rule were addressed before finalization. These memos were internal, deliberative Army/Corps documents, so any questions should be directed to the Army,” EPA spokeswoman Monica Lee told Bloomberg BNA in a July 27 e-mail.
The EPA and the corps are facing challenges from 30 states, with Tennessee being the latest state (see related story). The clean water rule also is being challenged by nearly 20 business, agriculture and industry groups as well as four different sets of environmental groups over the clean water rule (141 DEN A-2, 7/23/15).
The Natural Resources Defense Council and the National Wildlife Federation, which also are challenging the rule on grounds that it isn't protective enough of the nation's waters and wetlands, didn't respond to e-mails seeking comment.
However, the memos included concerns expressed by the environmental groups that the 4,000-feet threshold limit to establish case-by-case jurisdiction over isolated waters would exclude large lakes, ponds and wetlands.
Farm Bureau Validated
The American Farm Bureau Federation saw its position validated with the corps memos showing the EPA taking a unilateral rather than co-regulator approach to rulemaking.
“The documents reveal a dysfunctional process within and between the agencies, where political officials were making decisions over the vigorous objections and against the findings of agency staff, without taking the time to address the concerns,” Don Parrish, the bureau's senior regulatory relations director, told Bloomberg BNA in a July 27 e-mail. “They show an ‘ends justify the means—get it done now, no matter what' mentality that is not appropriate for agency rulemaking on such an important issue.”
But Scodari told Peabody that the corps “can't run away from the rulemaking.”
“The [corps] is just going to have to live with it and leave responsibility for defending it to the EPA and the OMB,” he said.
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Corps Downplays GOP's Claims Of Memos Proving 'Waters' Rule Unlawful
Jul 27, 2015 | InsideEPA
By David LaRoss
A top Army Corps of Engineers official is downplaying Senate Republicans' claims that memos between EPA and the Corps prove their argument that the agencies' joint Clean Water Act (CWA) jurisdiction rule is unlawful due to a lack of inter-agency consultation, with the Corps saying the memos were only part of a broader, adequate review.
Sen. James Inhofe (R-OK) argues that the memos that the Corps recently provided him in response to a recent request show that EPA failed to fully consult with the Corps on the rule. “[T]he facts in these documents support my conclusion, and the conclusion of the 30 states that have already filed lawsuits challenging the final [CWA] rule, that the rule is lacking factual, technical and legal support,” Inhofe says in a July 27 letter to the Corps.
However, Jo-Ellen Darcy, the Corps' assistant secretary of the Army for public works, preemptively tried to fight that argument in a July 17 letter to Inhofe, chairman of the Senate environment panel. Inhofe has criticized the rule as expanding the scope of the CWA far beyond what Congress ever intended.
The letter accompanied the Corps' submissions of memos and other documents that Inhofe and the other 10 GOP members of the Senate Environment & Public Works Committee (EPW) requested on the legality of the rule. Critics of the rule are seeking to argue that the Corps had major concerns about the rule but EPA failed to fully consult the Corps or address the concerns, which EPA's opponents say undermines the legal basis for the rule.
Darcy's reply responds to one of several letters that Republicans on EPW have sent the Corps and EPA about the development of the rule, each of which raises legal and other doubts over the policy.
For example, “The final rule raises even more questions regarding its legality” than the proposed rule, the Inhofe letter says. “In fact, it appears that EPA is once again rewriting a statute to meet its policy goals despite repeated warnings from the Supreme Court against such actions,” the Republicans said in July 14 letters to EPA and the Corps. The GOP requested answers to a host of questions on various technical, legal, and other aspects of the rule.
Darcy's July 17 letter to Inhofe says that while the memos shows that Corps scientists were sometimes critical of the rule during its development, their concerns were addressed before its proposal in April 2014. The agencies took comment on that proposal and then issued their final version of the waters rule in the June 29 Federal Register.
“I emphasize that the Army considered all the input received from the Corps throughout the drafting, vetting, and interagency review processes,” Darcy says in her letter to Inhofe.
EPA Consultation
To counter the claim that EPA failed to consider Corps comments on the rule, Darcy's letter cites three provisions of the CWA rule that she says were added or modified in direct response to input from the Corps.
The first provision says that waters within 1,500 feet of a traditionally navigable water should be considered jurisdictional only if the two waters are also in the same 100-year floodplain; the second provision is the rule's jurisdictional exclusions for certain kinds of ditches; and the third provision is the rule preamble's “flexible grandfathering” language for applying jurisdictional determinations made before the rule was issued.
Those changes are “in addition to many other technical edits, for which the Corps was advocating” and which appeared in the final rule, Darcy says in the letter to Inhofe.
Darcy also seeks to downplay memos from Corps staffers that appear critical of the rule, including one by economist Paul Scodari that was never relayed to Corps headquarters. Darcy says that critical memo was integrated into a second letter that was relayed to headquarters. She also downplays a memo from Corps Regulatory Program Chief Jennifer Moyer that included criticism of the rule but was written close to its formal proposal.
“Although received very late in the process, the concerns raised in the Moyer memorandum were in fact considered prior to issuance of the draft final rule,” Darcy's letter says.
While the Corps has submitted copies of the CWA memos to EPW, Darcy in her letter asks the committee not to publicly distribute them, noting that the Freedom of Information Act exempts “pre-decisional” documents from release. “Safeguarding these documents is particularly important now that the Army and the EPA are actively involved in litigation associated with publication of the final rule,” Darcy says in her letter.
An array of state and industry plaintiffs are already asking federal district and appellate courts to invalidate the CWA rule as unlawful or unconstitutional, and attacks on the policy's scientific basis are expected to form the centerpiece of at least some aspects of the legal challenges.
Inhofe's Concerns
Despite Darcy's claims that the Corps' concerns were fully considered in developing the CWA rule, Inhofe in his new letter touts the unreleased memos as evidence that the regulation lacks scientific support and should therefore be struck down by the courts.
“[T]he facts in these documents support my conclusion, and the conclusion of the 30 states that have already filed lawsuits challenging the final WOTUS rule, that the rule is lacking factual, technical and legal support,” Inhofe writers.
Inhofe quotes lines from the Corps memos that say, “[T]he process followed to develop [the rule] greatly limited Corps input”; that “The Corps . . . had no role in performing the analysis or drafting” the technical support document (TSD) that offers scientific justification for the rule; that the TSD's statement that waters within 4,000 feet should be considered to share a “significant nexus” in some circumstances “ is unfounded”; and that, in response to the determination that five categories of isolated waters can be considered “similarly situated” and thus linked, “the Corps has never seen any data or analysis to explain, support, or justify this determination.”
He also attacks EPA for apparently taking the lead on developing the rule to the exclusion of the Corps. “I also was surprised to learn that, even though the rule was purportedly a joint effort of EPA and the Corps, it appears that the Corps did not receive the draft final rule until EPA submitted it to interagency review on April 3, 2015, and according to [Army Major General John] Peabody's April 27, 2015 memorandum to you, 'the process followed to develop it greatly limited Corps input,'” the senator writes. Inhofe asks another round of questions for Darcy about the development of the rule and key provisions, and requests a response by July 30.
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Energy Industry Group Challenges Clean Water Rule
Jul 28, 2015 | BNA Daily Environment Report
A group of energy companies has petitioned a federal appeals court to review and set aside the final clean water rule on the ground that it is arbitrary and capricious (Util. Water Act Grp. v. EPA, 5th Cir., No. 15-60509, 7/24/15).
In its July 27 petition for review, the Utility Water Act Group also wrote that the rule, issued by the Environmental Protection Agency and U.S. Army Corps of Engineers, exceeds the agencies' Clean Water Act jurisdiction, in violation of Section 706(2) of the Administrative Procedure Act.
Consisting of 174 energy companies and three national trade associations of energy companies—the Edison Electric Institute, the National Rural Electric Cooperative Association and the American Public Power Association, the group's members require Clean Water Act Section 402 National Pollutant Discharge Elimination System permits and Section 404 dredge-and-fill permits as part of their operations, according to the petition.
The group contends that its members would be injured by the final clean water rule.
The agencies published the rule (RIN 2040–AF30), which seeks to clarify which waters fall within the jurisdiction of the Clean Water Act, on June 29. Although the rule takes effect Aug. 25, it was considered final on July 13 for the purposes of judicial review (80 Fed. Reg. 37,054; 125 DEN A-15, 6/30/15).
Industry, States, Groups Challenge Rule
In addition to UWAG, industry and environmental groups as well as states have challenged the rule.
Groups led by the Chamber of Commerce, claim that the rule will cause their members to suffer “real economic harm” to their businesses and property (134 DEN A-1, 7/14/15).
The Natural Resources Defense Council, National Wildlife Federation, Puget Soundkeeper and Waterkeeper Alliance have challenged the rule in separate actions. In some cases the environmental groups claim the rule does not go far enough the protect water quality and in others the groups are preparing to defend the rule against industry and state challenges (141 DEN A-2, 7/23/15).
Since the publication of the rule, it has been challenged by more than 30 states (125 DEN A-4, 6/30/15).
On July 23, Tennessee and Michigan joined Ohio in the filing of its first amended complaint in the U.S. District Court for the Southern District of Ohio (Ohio v. EPA, S.D. Ohio, No. 15-cv-02467, 7/23/15).
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Patchwork Of Suits Adds To Confusion On Venue For CWA Rule Challenges
Jul 27, 2015 | InsideEPA
By Bridget DiCosmo
The growing patchwork of litigation spawned by EPA's Clean Water Act (CWA) jurisdiction rule is adding to confusion over which courts are likely to hear consolidated cases, which the agency is sure to push for, though court watchers say it is uncertain whether the agency could win appellate court review before a district court ruling.
One legal source says there "seems to be a growing consensus among the rule challengers that this is a district court case," but adds that "I could also imagine courts deciding it would be simpler to resolve the issues in Circuit Court," which EPA would likely prefer to district court rulings, which could prolong judicial review.
Various states and industry groups have teamed up in challenges to the policy filed in various federal district and appellate courts, raising a range of criticisms -- arguing that the rule generally exceeds the agencies' authority under the CWA and is at odds with the Constitution by expanding the reach of the water law. Several suits also claim the rule violated the Administrative Procedure Act by not giving enough time for public input on the policy, and one suit argues the rule should have included a more comprehensive National Environmental Policy Act review.
As of press time, filings included challenges in federal district courts in West Virginia, Minnesota, Georgia, Texas, Oklahoma, Ohio and North Dakota; and appellate challenges filed by Murray Energy in the U.S. Court of Appeals for the 6th Circuit, Southeastern Legal Foundation in the 11th Circuit, Texas, Louisiana and Mississippi in the 5th Circuit, and Center for Biological Diversity and other groups in the 9th Circuit.
EPA and the Army Corps of Engineers published the final rule in the June 29 Federal Register, but said in the notice that it is considered issued for purposes of judicial review at 1 p.m. Eastern time on July 13, starting the 120-day clock through Nov. 10 for review in the appeals courts.
But the quick and voluminous filing of the cases in district court is significant, observers say, given what is considered great uncertainty over the appropriate venue and timing of litigation over the rule.
Hunton & Williams attorney Diedre Duncan predicted in early June that given the CWA's 120-day statute of limitations for judicial review, there is likely to be a "race to the courthouse with multiple litigants," after the rule is promulgated.
But that litigation clock applies only to appeals court review, and sources say it is unclear whether appellate courts have jurisdiction to hear a challenge to the rule.
Judicial Review
Many environmental statutes, including the Clean Air Act and the Resource Conservation & Recovery Act, provide that judicial review of final agency rules must proceed in a court of appeals as opposed to a federal district court. But section 509 of the CWA says that only specific types of rules must be initiated at the appellate level.
Section 509 also allows litigants to file in any appeals court, as opposed to other statutes, such as the air law which says that nationally applicable laws may only be reviewed in the U.S. Court of Appeals for the District of Columbia Circuit -- meaning challenges to the CWA rule could be filed in any of the 12 appellate circuits.
Section 509 of the CWA says that legal challenges to approval or promulgation of any effluent limitation "or other limitation" under sections 301, 302, 306, or 405, permit approvals under section 402, or individual water quality control strategies under section 304 must seek initial review in an appeals court. However, the jurisdiction rulemaking does not fall within a specific section of the water law, and so the open question is whether it will be considered as an "other limitation" under the courts.
In the final rule's preamble, EPA and the Corps say, "The Supreme Court and lower courts have reached different conclusions on the types of actions that fall within section 509," but do not weigh in on whether the jurisdiction rule will fall within those parameters.
But opponents to the rule seem to be adopting the consensus that the district courts remain the proper venue, observers say. For example, the states in State of Texas, et al. v. U.S. Environmental Protection Agency, et al., in their July 16 petition for review in the 5th Circuit say they are filing for appellate review "only as an abundance of caution," and believe it should be dismissed for lack of jurisdiction. The states also filed in the U.S. District Court for the Southern District of Texas.
The states say that EPA and the Corps' preamble language suggesting that appellate review might be appropriate is "clearly incorrect as a matter of law," citing a 2012 11th Circuit ruling, Friends of the Everglades v. EPA, in which the court held that EPA's water transfer rule did not pose a "limitation" and thus did not fall under section 509.
District Litigation
"I think most people do believe district court" is the proper venue, a third source says, but adds that EPA and the Corps will try to make a case for the rule to be considered under section 509 -- in particular because an appeals court ruling that is favorable for the agencies could preclude future as-applied challenges to CWA enforcement actions based on the rule's provisions.
While sources generally agree that EPA and the Corps will seek to consolidate the filings in circuit court, ideally in the D.C. Circuit, it is unclear whether that would be successful. By rule, the multi-circuit panel must choose a circuit court to hear the case at random among any first-filed court of appeals challenges. Parties had until July 23 for filing to be considered in the random lottery system.
"I would think it a near certainty that some consolidation will occur," a second legal source says. "The agencies have an excellent argument that, without a multi-district litigation designation, they could be subject to inconsistent or conflicting judgments."
But that source cautions that they suspect the district court litigation may be consolidated given the uncertainty about whether the court of appeals has jurisdiction to hear initial challenges. And one environmentalist says the Justice Department is most likely to consolidate the cases in the D.C. district court, and that industry's strategy of filing in multiple districts across the country was unnecessary.
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Obama Admin Ok'd Controversial Rule Over Experts' Objections
Jul 27, 2015 | E&E - Greenwire Alert
By Annie Snider
The Obama administration has sold its controversial new water rule as protecting vital streams and wetlands based on sound science, deep technical expertise and solid legal principles.
The federal government's on-the-ground experts disagree.
According to documents obtained by Greenwire and interviews with former Army Corps of Engineers leaders, the agency's top brass has argued behind the scenes that changes made in the final version of the rule will significantly limit the reach of the Clean Water Act, potentially leaving as much as 10 percent of water bodies that feed communities' drinking water supplies and are important for fish and wildlife no longer protected from pollution.
In fact, the corps disagreed so strongly with the joint U.S. EPA-Army rule that it requested all references to the agency be removed from the rule and supporting documents.
Experts at the corps, which is responsible for the vast majority of the calls about whether a creek or marsh warrants federal protection under the 1972 law, contended that the new limits under the rule are arbitrarily drawn, supported neither by science nor by law, and will be unworkable on the ground.
In an April 27 memo to the political official who oversees the corps, the agency's top commander for civil works, Maj. Gen. John Peabody, said that even after the rule had been sent to the White House for final interagency review, the corps continued to have "serious concerns" about several aspects of it.
"The rule's contradictions with legal principles generates multiple legal and technical consequences that, in the view of the Corps, would be fatal to the rule in its current form," he wrote to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, a Pentagon-based political appointee.
In the memo, Peabody suggested that corps staff felt cut out of the process for developing the rule, which was driven by EPA and Darcy's office. He indicated that his agency only received a copy of final changes made to the rule after it had been sent to the White House and objected to the rule being described as a joint endeavor of EPA and the corps.
But Peabody's concerns apparently were not addressed by May 15, when he wrote a second memo to Darcy's office.
After getting a copy of the agencies' technical and economic analyses underpinning the rule -- which were partially based on raw data provided by the corps -- the agency's experts had determined that those documents were fundamentally flawed, too, he wrote.
"Our technical review of both documents indicate[s] that the Corps data provided to EPA has been selectively applied out of context, and mixes terminology and disparate data sets," Peabody's second memo states. "In the Corps' judgement, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies, and logical inconsistencies."
Again, he asked that the corps not be identified as a co-author in the final documents.
That Peabody put his concerns in writing is highly unusual, according to a former corps leader who has followed the ongoing imbroglio.
"It's unbelievable that the corps would be openly critical of a policy decision by the assistant secretary," the former leader said. "Any public official welcomes input into these decisions, but generally once the decision is made, everybody works to carry it out. That's our system and is certainly the system in the military."
Like all current and former officials interviewed for this story, the former corps leader spoke on the condition of anonymity because of the sensitivity around the issue and the corps' general policy of staying out of the political fray.
The corps memos were shared with Greenwire on the condition that the documents not be published. It is unclear whether they will be made part of the administrative record for the rulemaking, or whether they are obtainable under the Freedom of Information Act.
A second former corps leader said the corps took the extraordinary step of sending the memos because the agency wanted to get on the record saying not only that its experts disagreed with the rule, but that they did not think it would work in the field.
To be sure, responsibility for policy decisions lies with Darcy's office, while the corps is charged with applying those policy decisions on the ground.
"During the rulemaking process, the Office of the Assistant Secretary of the Army for Civil Works received and considered legal, technical and policy input from the corps," Army spokeswoman Moira Kelley said. She noted that pending litigation limits the department's ability to comment.
A spokesman for the corps declined to comment, including on whether any changes made to the rule between the draft version sent to the White House and the version officially finalized in June had allayed its experts' concerns. But the final language in several key areas of the rule that had raised worries for the corps appears not to have changed from the draft version.
EPA spokeswoman Monica Lee said by email that "all concerns" were addressed before the rule was finalized.
"As with any multiagency rulemaking, the EPA and Army/Corps worked closely and carefully to make sure that all concerns surrounding the Clean Water Rule were addressed before finalization," she said.
Now, the corps' unusually vocal disagreement with its policy bosses raises questions about the technical grounding of the rule and the process by which it was developed.
Those questions open the door to new legal arguments under a number of environmental laws and on procedural grounds at a time when dozens of states, industry groups and environmentalists have already filed suit over the rule.
The revelations also stand to add new political fire to the ongoing legislative brawl over the rule on Capitol Hill.
Both the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee have received copies of the memos from the Army in response to information requests. Today, EPW Chairman James Inhofe (R-Okla.) argued in a letter to Darcy that information in the memos underscores his concerns about the process by which the rule was developed. Scathing legal review
But the picture painted by the corps documents stands in stark contrast to the prevailing narrative by political opponents of the new rule, who contend it is a vast expansion of federal Clean Water Act authority driven by an overreaching EPA.
Instead, the documents show that it was corps leaders, in most cases, who were arguing for broader federal authority as final revisions were being made to the rule.
Facing fierce opposition from agricultural groups, municipal officials, the construction industry, congressional Republicans and some farm state Democrats, the Obama administration made key changes in the final rule that officials said were aimed at responding to concerns raised about the proposed version.
Among those changes: a first-ever geographical limit, beyond which wetlands and ponds are deemed too far-flung from the tributary network to warrant federal protection. In most cases, that outer-most boundary is 4,000 feet from the nearest tributary.
Another change, which the corps argues was dropped into the rule the day that it was sent to the White House for review, added language that exempts wetlands near waterways that are currently in agricultural use from being automatically covered under the law.
Exemptions for ditches -- a key area of concern for a number of critics -- were also altered.
But a scathing legal review from the corps' top lawyer for environmental issues accompanying Peabody's April 27 memo concluded that, without fixes to these new limitations, the rule would be "legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement."
The lawyer, Lance Wood, called the 4,000-foot limit particularly arbitrary. In fact, he wrote that EPA had initially proposed a 5,000-foot outer boundary, and then three days later changed it to a narrower 4,000-foot limit.
The Obama administration has officially estimated as much as a 4.65 percent increase in federal jurisdiction under the final water rule. But a technical analysis from the corps' regulatory chief, Jennifer Moyer, concluded that as much as 10 percent of wetlands that had previously been covered by the Clean Water Act would be out of reach due to changes in the final rule.
Moyer's analysis includes a dozen examples of wetlands, ponds and other waters that have been federally protected under current practices but would not be under the new rule.
For instance, the corps identified 300 acres of wetlands and a 100-acre pond in Clarksville, Tenn., that had been deemed by the corps to be covered by the Clean Water Act because they were known to drain into the Red River through sinkholes. But the wetlands are at least 10,000 feet from the channel of the river -- far outside the new geographical limit, the corps analysis states. Meanwhile, a change in the final rule that does not allow lakes and ponds to be considered tributaries would knock the pond out of Clean Water Act protection, according to the corps analysis.
But because the corps has not been consistently collecting data on the distance between water features and the nearest river channel, it simply does not have the information to know how many such lakes, wetlands and ponds across the country would no longer be protected under the rule, Moyer wrote.
To better understand the potentially sweeping consequences of the changes made between the proposed and final versions of the rule, Peabody and his staff argued that an environmental impact statement was required under the National Environmental Policy Act.
Such detailed analysis can take more than a year, though, and with the Obama administration racing to get the final rule out the door before summer, only a less detailed environmental assessment was done. That assessment found the rule would have no significant impact on the environment, and thus that no further study was needed.
The corps' analysis also raises a number of issues with the agencies' economic justification and technical support for the rule.
For instance, the agencies officially estimate that the rule could bring more than $500 million in benefits. Those benefits were in large part based on wetlands and stream restoration work that Clean Water Act dredge-and-fill permits require to be done in order to offset damage done to wetlands in streams elsewhere.
But Moyer argued that those benefits were based on a significant overestimate of the amount of restoration work that would be required under the new rule. In some instances, the official analysis predicts restoration work will be required six times more frequently than the corps has required in the past, according to her memo.
The key question now is how the corps memos could play into the court battles over the water rule that are already shaping up across the country.
The documents stand to offer both ammunition and potential downsides to a range of litigants.
In substance, the corps' concerns dovetail closely with arguments still being hammered out by environmental groups that are challenging the rule as too weak. The agency's memos could offer them a road map for arguing against the stricter limits set under the final rule and key exemptions.
But the process concerns that the corps memo raises could open the door to arguments calling for the entire rule being struck down. In that way, the documents could end up empowering states and industry groups that are challenging the rule for the exact opposite reason.
At a minimum, the divergence of views over the rule stands to cause problems as government lawyers set out to defend it before a judge.
"Of course [the Department of Justice] is going to defend it, and they're going to rely a lot on the corps counsel and the Army counsel, and I guess it would be very interesting to watch the three of those counsels come to some kind of defensible position now," the second former corps leader said.
But the first former corps leader said the memos could end up playing either way in court.
On one hand, the argument could be made that the administration acted arbitrarily by overruling the corps' experienced concerns. On the other hand, it could be argued that the documents make the final policy decision look stronger, having been made after considering the corps' full-throated views, the former leader said.
"It's unseemly, for sure; but how damaging is it? There are different views," the former leader said.
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House Leaders Rule Out Passing Senate Highway Bill
Jul 27, 2015 | E&E News PM
By Daniel Bush and Sean Reilly
The House won't take up the Senate's long-term transportation bill before breaking for its August recess at the end of the week, Majority Leader Kevin McCarthy (R-Calif.) said today.
McCarthy ruled out any action in the House this week on the Senate's six-year road and transit measure, raising the odds that House lawmakers will head home to their districts Thursday without having reached a compromise with the upper chamber to replace a stopgap transportation bill that expires Friday. Absent congressional approval of a new funding measure, federal reimbursements for projects around the country will be disrupted, according to the Transportation Department.
"We're not taking up the Senate bill," McCarthy told reporters in a briefing this afternoon. Instead, he urged the Senate to pass a five-month spending measure that sailed through the House earlier this month, calling it the "best option" to temporarily fund highway and transit programs while lawmakers negotiate a long-term bill.
"The easiest, best way to move forward is [for the Senate] to take up the five-month bill," McCarthy said.
A spokesman for Senate Majority Leader Mitch McConnell (R-Ky.) had no immediate comment. On the Senate floor, however, McConnell reiterated his desire to get the Senate legislation "across the finish line."
"The lines have been drawn," Erich Zimmermann, director of transportation programs at the National Association of Regional Councils, said in a phone interview. "Hopefully, somebody is going to call 'boo' and we'll figure out a way forward."
The political terrain appears to favor House leaders, who have repeatedly dismissed the Senate's efforts to pass its approximately 1,000-page bill in little more than a week. After unveiling the measure last Tuesday, senators have yet to actually debate it, instead dealing with amendments to repeal the Affordable Care Act and reauthorize the Export-Import Bank. On the current track, Zimmermann doubted that the Senate could pass the bill before Thursday, when the House is set to leave. The Senate is scheduled to continue meeting through most of next week.
At today's briefing, McCarthy added that the House passed its transportation measure weeks ago in order to avoid a last-minute showdown with the Senate.
"We did this three weeks ahead of time. We've been very clear," McCarthy said. The House measure would carry road and transit programs through Dec. 18.
On the Senate floor, Environment and Public Works Chairman James Inhofe (R-Okla.) warned that the House legislation would continue the cycle of short-term funding extensions that have become increasingly common since 2009, an approach that he said ultimately drives up the cost of transportation projects.
"The conservative position is to support" the Senate bill, Inhofe said. Although lasting six years on paper, however, the measure ensures funding for road, rail and transit programs only through fiscal 2018.
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