Preview Newsletter
ACC AM Aug 3
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Oversight of Litigation at EPA and FWS: Impacts on the U.S. Economy, States, Local Communities and the Environment
Aug 4, 2015 | U.S. Senate Committee on Environment & Public Works
Location: 406 Dirksen Senate Office Building/ 9:30 AM -
Agency Progress in Retrospective Review of Existing Regulations
Aug 6, 2015 | U.S. Senate Committee on Homeland Security & Governmental Affairs
Location: SD-342, Dirksen Senate Office Building/ 9:00 AM -
(ACC Mentioned) Outlook Stays Bullish For Chemical Industry
Aug 2, 2015 | The Houston Chronicle
By Rhiannon Meyers
Buoyed by a continued flood of cheap natural gas, the U.S. chemical industry continues chugging forward with billions of dollars worth of new plants and expansions along the Texas Gulf Coast even as the rest of the energy sector struggles under a global crude collapse. -
Strong Dollar Hurts Chemical Sales But Profits Stable In Second Quarter
Aug 3, 2015 | Chemical & Engineering News
By Melody M. Bomgardner
U.S. chemical company executives had plenty to complain about in the second quarter. Of early-reporting firms, all but one—Eastman Chemical—reported lower sales compared with last year’s quarter. The minus signs were due to the effects of a strong dollar, weak agriculture markets, and lower prices for some ... -
The Myth of “Natural” Parabens
Jul 31, 2015 | Environmental Working Group
By Rochelle Cameron
Parabens are a class of chemicals used as preservatives in food, industrial products and personal care products, but most widely prevalent in cosmetics and personal care products. Nearly everyone is exposed to these compounds: the U.S. Centers for Disease Control and Prevention tested more than 2,500 urine samples, and detected ... -
Canada Proposes Toxic Designation for Microbeads
Aug 3, 2015 | BNA Daily Environment Report
By Peter Menyasz
The Canadian government has proposed designating microbeads as toxic and developing regulations to restrict their entry into the environment, including banning their use in personal care products. The government intends to add microbeads to the List of Toxic Substances in Schedule ... -
EU Calls for Comments on Functioning of Pollutant Registry
Aug 3, 2015 | BNA Daily Environment Report
By Stephen Gardner
The European Commission is calling for input through Oct. 15 on the European Union's European Pollutant Release and Transfer Register Regulation (E-PRTR, (EC) No 166/2006), under which information on pollutant emissions from industrial sites in the bloc is published online. -
Chemical Facility Security Program Improves
Aug 3, 2015 | Chemical & Engineering News
By Glenn Hess
After years of criticism about delays, the Department of Homeland Security (DHS) has ramped up its rate of reviewing and approving security plans prepared by “high-risk” chemical facilities, a congressional report says.These facilities, which would pose the greatest danger if attacked, must prepare and implement the security plans... -
CSB Approved Contracts Without Required Safeguards -- IG
Jul 31, 2015 | E&E News PM
By Sam Pearson
The U.S. Chemical Safety Board's poorly defined contracting policies have put at least $1.9 million at risk, the U.S. EPA inspector general said in a new report. The report released today found CSB has failed to implement internal controls to ensure that acquisitions including... -
San Francisco Can't Sue PHMSA, Court Rules
Aug 3, 2015 | BNA Daily Environment Report
A federal appeals court on July 30 blocked the City of San Francisco's bid to sue the federal government to force stronger oversight of pipelines in the state. The U.S. Court of Appeals for the Ninth Circuit upheld a lower court decision throwing out a lawsuit against the Pipeline and Hazardous Materials Safety Administration. -
BLM Fracking Rule Proponents Argue SDWA Does Not Preclude Regulation
Jul 31, 2015 | InsideEPA
By Bridget DiCosmo
Proponents of the Bureau of Land Management's (BLM) rule governing hydraulic fracturing on public lands are countering states' claims that Congress intended to address federal regulation of fracking via EPA's Safe Drinking Water Act (SDWA) authority, saying the congressional language of SDWA clearly intended to preserve BLM's authority. -
Shallow Fracking Wells May Threaten Aquifers
Aug 3, 2015 | Chemical & Engineering News
By Jeff Johnson
Several thousand near-surface hydraulic fracturing, or fracking, operations for oil and natural gas production in the U.S. pose a potentially significant risk of contaminating drinking water sources, according to a new analysis. This first national assessment of fracking focused on well depth raises particular concerns about fracking... -
Shell Begins Drilling Again in Arctic Waters
Aug 3, 2015 | BNA Daily Environment Report
By Alan Kovski
Royal Dutch Shell Plc has begun drilling at the Burger prospect in the Chukchi Sea, despite protests, opposition by many politicians, regulatory restrictions and the rigors of the Arctic offshore. Shell hadn't drilled at the Burger prospect since 2012, when sea ice closing in on the site cut short the drilling season. -
Ownership Transfer of Two Cross-Border Pipelines OK'd
Aug 3, 2015 | BNA Daily Environment Report
By Rebecca Kern
The State Department issued presidential permits July 31 transferring ownership of two existing cross-border pipelines, one between the U.S. and Canada and another between the U.S. and Mexico. Despite issuing permits for these projects, the State Department still has yet to decide on the Keystone XL pipeline between the U.S. and Canada. -
Dems Give Clinton Pass On Keystone
Jul 31, 2015 | The Hill - E2 Wire
By Devin Henry
Green groups and Hillary Clinton’s rivals for the Democratic presidential nomination are pressing her to take a firm position on the Keystone XL pipeline. The groups and Clinton's challengers, former Maryland Gov. Martin O’Malley and Sen. Bernie Sanders (I-Vt.), say anyone running to be the Democratic... -
U.S. Power Plant Rules More Uniform Between States: White House
Aug 3, 2015 | BNA Daily Environment Report
By Mark Drajem
The Obama administration’s plan to cut carbon emissions from existing power plants, set for release Monday, will include goals for states that are more uniform than those first proposed in 2014, a White House official said. Brian Deese, an adviser to President Barack Obama on energy... -
Obama Doubles Down On Historic Climate Rule For Power Plants
Aug 2, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration on Sunday unveiled a tougher climate change rule for power plants, demanding that generators cut their carbon dioxide output 32 percent in the first ever limits on the pollutant.The historic regulation from the Environmental Protection Agency (EPA) is the main pillar of President Obama’s climate agenda. -
Political Battle Lines Drawn On EPA Power Plant Rule
Aug 3, 2015 | E&E Daily News
By Jennifer Yachnin
U.S. EPA's final Clean Power Plan rule is set for release today, but the flow of millions of advertising dollars aimed at elevating the measure's importance in a series of competitive Senate races began months ago and is expected to steadily grow ahead of next year's Election Day. -
365 Companies, Investors Support Power Plant Rules
Aug 3, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Adidas, Ben & Jerry's, eBay and more than 360 other companies and investors are throwing their weight behind the Environmental Protection Agency's proposed plan to cut carbon pollution from power plants. In letters sent July 31 to more than two dozen governors, the group is urging “timely finalization”... -
Obama Turns To Climate Change
Aug 2, 2015 | The Hill - E2 Wire
By Jordan Fabian and Tim Cama
President Obama is looking to cement his legacy on climate change. His administration will finalize sweeping new regulations on power plants on Monday, which is sure to spark a fight with Republicans in Congress. In a video released early Sunday, Obama called the plan... -
Obama, Allies Tout Climate Rule Ahead Of Monday Launch
Jul 31, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama set the stage on Sunday for the release of the nation’s most ambitious environmental regulation in decades — a crackdown on power plants’ greenhouse gas emissions that the administration hopes will put the U.S. in striking distance of achieving a global agreement to combat climate change. -
Rose Garden Event To Unveil Final Carbon Standards Reflective Of Industry, State Feedback
Aug 3, 2015 | E&E Daily News
By Emily Holden and Rod Kuckro
The Obama administration will unveil final rules for existing, new and modified power plants at a ceremony at the White House at 2 p.m. today. In a call with reporters yesterday, U.S. EPA chief Gina McCarthy outlined major changes to the rules meant to answers... -
EPA’s New Emissions Rule to Alter Energy Landscape
Aug 2, 2015 | The Wall Street Journal
By Rebecca Smith
The Environmental Protection Agency’s new rules on carbon emissions from power plants will alter the way Americans make and consume electricity, accelerating a dramatic shift to cleaner fuels, renewable energy and consumer choice. Even as the new regulations on greenhouse gases face legal challenges, they will force sweeping... -
Killing EPA’s Climate Rule May Bring More Burdensome Replacement
Jul 31, 2015 | PoliticoPro
By Alex Guillén
Opponents of the Obama administration’s carbon rule for power plants contend that the regulation is convoluted, arbitrary and a major threat to the economy. But if they succeed in getting a court to kill it, the alternative could be far worse. That’s because the EPA has little choice but ... -
EPA Sued Over Toxics Standards Determination
Aug 3, 2015 | BNA Daily Environment Report
By Andrew Childers
Environmental groups are challenging the Environmental Protection Agency's determination that it has met its legal obligation to regulate industrial facilities responsible for at least 90 percent of the emissions of mercury and six other toxic pollutants (Sierra Club v. EPA, D.C. Cir., No. 15-1246, 7/31/15). -
EPA Strengthens Final ESPS And Sees Coal Generation Taking A Bigger Hit
Aug 2, 2015 | InsideEPA
By Lee Logan
The Obama administration is unveiling final greenhouse gas (GHG) standards for the existing power fleet Aug. 3 that are expected to cut emissions by 32 percent from 2005 levels by 2030, a steeper decline than the 30 percent cut envisioned by the proposed version, due largely to a larger decline in coal use and greater use of renewables. -
New EPA Rule On Greenhouse Gases The Latest Blow to King Coal
Aug 1, 2015 | The Washington Post
By Steven Mufson
When coal was king, it fueled more than half of the nation’s electricity. It fired up American industry and powered an ever-growing variety of household appliances and electronics. And American presidential hopefuls paid homage to coal, courting mine owners and miners whose unionized ranks once numbered more than 400,000. -
D.C. Circuit Urged To Impose Emergency Suspension Of EPA Utility MACT
Jul 31, 2015 | InsideEPA
By Stuart Parker
A Western electric utility is urging the U.S. Court of Appeals for the District of Columbia Circuit to impose an emergency suspension of an acid gas emissions limit in EPA's remanded utility air toxics rule, citing lingering doubts over the fate of the rule following a Supreme Court ruling faulting EPA's initial justification for the rule. -
White House Axes Efficiency From State Clean Power Targets
Jul 31, 2015 | E&E - Greenwire
By Jean Chemnick
U.S. EPA's final Clean Power Plan will no longer base state targets, in part, on estimates about how much they could boost energy efficiency, an administration official said. President Obama on Monday will release the final rule for existing-power-plant carbon emissions that does not include ... -
EPA Likely To Include Multiple 'Interim' Compliance Periods In Final ESPS
Jul 31, 2015 | InsideEPA
By Doug Obey
In addition to delaying the start of the “interim” compliance period for its final greenhouse gas (GHG) rule for existing power plants, EPA appears likely to include several early compliance periods in the rule, an effort intended to provide a smoother glide path to final compliance in 2030 and greater certainty that GHG cuts will occur in the program's... -
House Democrats Call for Tighter Ozone Standards
Aug 3, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental Protection Agency Administrator Gina McCarthy should set national ozone standards at a level of 60 parts per billion, according to 64 House Democrats. The representatives, in a July 30 letter to McCarthy, argued that the current 75 ppb standards... -
EPA, California Fight Advocates' Bid For Retroactive Stricter PM2.5 Limits
Jul 31, 2015 | InsideEPA
By Stuart Parker
EPA and California officials are fighting environmentalists' suit aiming to force retroactive application of stricter fine particulate matter (PM2.5) emissions control requirements, saying in final briefs that taking the approach sought by advocates would be unlawful under the Clean Air Act and would also be unnecessary for some areas. -
Ozone Advocacy Efforts Rise as Oct. 1 Deadline Nears
Aug 3, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Industry, public health and environmental groups are turning up the pressure on Obama administration officials and Capitol Hill in advance of a final decision from the Environmental Protection Agency on where to set national ozone standards. The EPA is soon expected to send its final rule to the White House... -
29 State Attorneys General Seek Delay in Water Rule
Aug 3, 2015 | BNA Daily Environment Report
By Pat Ware
Twenty-nine state attorneys general asked federal regulators to postpone implementing a rule to clarify the jurisdiction of the Clean Water Act, saying it would negatively affect the state's agricultural interests and infringe on landowners' private property rights. -
House GOP's Release Of Critical CWA Memos Might Boost Suits Over Rule
Jul 31, 2015 | InsideEPA
By David LaRoss
House Republicans have released several Army Corps of Engineers memos circulated during the development of the Clean Water Act (CWA) jurisdiction rule jointly developed with EPA where the Corps faults the legal and scientific basis for the then-pending rule, potentially boosting pending lawsuits that claim the rule is unlawful.
Congressional Hearings
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Full Text of Stories Below
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Aug 4, 2015 | U.S. Senate Committee on Environment & Public Works
Location: 406 Dirksen Senate Office Building/ 9:30 AM
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Agency Progress in Retrospective Review of Existing Regulations
Aug 6, 2015 | U.S. Senate Committee on Homeland Security & Governmental Affairs
Location: SD-342, Dirksen Senate Office Building/ 9:00 AM
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(ACC Mentioned) Outlook Stays Bullish For Chemical Industry
Aug 2, 2015 | The Houston Chronicle
By Rhiannon Meyers
Buoyed by a continued flood of cheap natural gas, the U.S. chemical industry continues chugging forward with billions of dollars worth of new plants and expansions along the Texas Gulf Coast even as the rest of the energy sector struggles under a global crude collapse.
Chemical giant LyondellBasell recently announced the completion of a $200 million expansion at its Channelview plant. And 75 miles away in Freeport, a plant operated by BASF, a leading global chemical company, kicked off construction of a $600 million ammonia plant expansion on its existing site.
The projects are the latest in a string of investments returning to the United States thanks to a wave of low-cost natural gas and natural gas liquids that chemical companies use to make their products.
“There’s no doubt the chemical sector continues to be bullish in terms of profitability and the fact that investments will continue,” said Mark Eramo, vice president of global business development at IHS Chemical.
More than one-third of 242 chemical industry projects announced have been completed or are under construction, according to the American Chemistry Council. In total, the chemical sector is investing $149 billion in the U.S., according to the trade group.
Cheap gas prices have given the U.S. a fresh competitive edge as chemical companies run their plants at full throttle and roll out plans to grow or retool their facilities to soak up as much low-cost feedstock as possible and to crank out more products.
Lyondell’s recently completed Channelview expansion is slated to boost the company’s ethylene production by 250 million pounds per year, but the company has its sights set on even bigger numbers.
Bob Patel, CEO of the international chemical giant operated out of Houston, said Lyondell intends to continue building other projects that will strengthen its U.S. portfolio, including additional ethylene expansions at its plants in Channelview and Corpus Christi. Ethylene is a key building block used to make plastics.
“The coming years will be very active for us,” Patel said in a recent earnings call with investors.
The commitment came as Lyondell reported a 13 percent surge in second-quarter profits, which the company attributed to ongoing access to abundant supplies of low-cost gas and natural gas liquids and its ability to continue operating while competitors shut down for unscheduled maintenance.
Lyondell’s plants ran at near capacity as a bevy of unplanned outages struck competing plants in Europe.
The shutdowns caused shortages of olefins and polyolefins, the raw materials used to make food packaging, automotive parts, bottles, paints and coating among other things, and they helped boost income for Lyondell, which has been running its European plants hard in recent years to capitalize on the rise in demand for such products.
While low-cost energy has obvious direct benefits for companies such as Lyondell, cheap natural gas also has lured investments from chemical companies with loose ties to the fuel.
The Yara Freeport plant won’t use natural gas as a feedstock to manufacture ammonia, but BASF and partner Yara, a Norwegian fertilizer company, would not have made the $600 million investment absent the U.S. shale boom, said Wayne Smith, chairman and CEO of BASF Corp.
That’s because the ammonia plant will operate using two industrial gases with prices linked to natural gas — nitrogen and hydrogen — underscoring the fuel’s far-reaching effects.
“This project reflects our global view that the marketplace is robust and will remain for many years an opportunity for growth for the chemical industry,” Smith said at a ceremonial groundbreaking for the project.
The project gives Yara its first manufacturing footprint in the U.S. and marks the latest investment by BASF in domestic chemical projects.
Aside from the Freeport plant, BASF also is building a $42.6 million polyurethanes blending facility in Geismar, Louisiana.
BASF also is eyeing building another major project in Freeport that would use natural gas as feedstock to make propylene, also used to make plastics. The company, which has not yet disclosed a potential price tag for the project, expects to make a decision next year, Smith said.
“If we go ahead with that investment, it will be the largest investment BASF’s made in a single plant anywhere in the world,” he said.
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Strong Dollar Hurts Chemical Sales But Profits Stable In Second Quarter
Aug 3, 2015 | Chemical & Engineering News
By Melody M. Bomgardner
U.S. chemical company executives had plenty to complain about in the second quarter. Of early-reporting firms, all but one—Eastman Chemical—reported lower sales compared with last year’s quarter.
The minus signs were due to the effects of a strong dollar, weak agriculture markets, and lower prices for some products—the latter a side effect of cheap raw material and energy costs. Still, demand for performance materials, plus past cost-cutting efforts, helped most firms preserve or even grow earnings.
At Dow Chemical, sales fell more than 13% to $12.9 billion while earnings rose 19.1% to reach almost $1.1 billion. Analysts acknowledged that the company performed better than expected, yet they curbed their enthusiasm.
“Weak crop prices and a sluggish end market have limited agriculture demand,” wrote Laurence Alexander of investment bank Jefferies in an investor note. Indeed, Dow’s agriculture segment saw volumes decrease 2% and prices sink 6%. “Strength in the construction, transportation, and consumer goods end markets was offset by broad-based weakness in most other industrial end markets,” Alexander added.
Although revenues fell, Dow enjoyed strong demand for performance plastics, where volumes increased by 9% compared with the prior year’s quarter, and for performance materials and chemicals, which grew by 4%. In a conference call with analysts, Dow CEO Andrew N. Liveris said U.S. consumers helped drive demand; he mused they had more cash on hand because of low gas prices. In China, rising auto manufacturing and spending on infrastructure such as water treatment facilities boosted sales.
Agriculture more severely impacted results at DuPont, where the segment’s earnings were 7% lower than last year because of reduced sales of DuPont’s soybeans, lower crop protection volumes, and reductions in corn acreage around the world. Performance materials were a bright spot; earnings for the segment grew 3%.
DuPont’s results for the quarter included its performance chemicals business, which was spun off as a separate company, Chemours, on July 1. The business’s operating earnings sank 55% because of lower prices for titanium dioxide and negative currency effects. Overall, DuPont saw earnings erode by 3.8% to just more than $1 billion on a sales drop of 11.4%.
At Eastman, sales and earnings were up compared with last year’s second quarter because of acquisitions, primarily the one involving amines specialist Taminco. But sales and earnings in Eastman’s legacy acetate tow and acetyl chemical businesses dropped.
Currency headwinds pinched results at Huntsman Corp., but overall the firm saw earnings grow nearly 7% to $155 million even as sales shrank by 8.3%. Again, it was performance products and advanced materials to the rescue. Earnings in the two Huntsman segments grew by a combined 20%.
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The Myth of “Natural” Parabens
Jul 31, 2015 | Environmental Working Group
By Rochelle Cameron
Parabens are a class of chemicals used as preservatives in food, industrial products and personal care products, but most widely prevalent in cosmetics and personal care products. Nearly everyone is exposed to these compounds: the U.S. Centers for Disease Control and Prevention tested more than 2,500 urine samples, and detected methyl paraben in 99 percent and propyl paraben in 93 percent.
Although parabens are classified as “generally recognized as safe” in foods by the U.S. Food and Drug Administration, increasing evidence has drawn attention to their possible health risks, primarily their potential to disrupt the endocrine system, which can interfere with the normal functioning of hormones.
But some companies are trying to sidestep such health concerns. Recently, some makers of personal care products have claimed parabens are “natural,” found in healthful foods such as blueberries, carrots and olives. Even the CDC is chiming in, stating on its website that parabens “occur naturally in some foods, including specific fruit juices and wine.” The CDC cited a paper that asserted a widespread and natural occurrence of parabens in food—cloudberry, yellow passion fruit juice, white and naturally sweet wines, Bourbon vanilla—but provided no supporting references for such claims. Turns out that a company that specializes in getting chemical additives approved for use in food wrote the paper.
Intrigued, I dug into the scientific literature. I found a couple of studies that found methyl paraben in cloudberry and vanilla extract, but it’s a big exaggeration to say they are common in fruits and vegetables.
Most claims of naturally occurring parabens fail to provide a reference to a peer-reviewed scientific study to confirm their assertions. Scientific literature about natural sources of parabens is sparse. In contrast, there are many studies using sophisticated analytical techniques to examine the chemical constituents of certain items. In these studies -- listed in the table below -- no parabens are included in the chemicals found in blueberries and many other alleged natural sources of parabens.
This is not to say that parabens are completely absent from the natural world. Related molecules have been found to occur naturally in blueberries and some other plant species. Parabens differ from these molecules in that they contain chemicals called esters, which results in different chemical properties and characteristics.
Certain conditions favor conversion of related compounds into parabens, which may be how certain organisms may be able to produce certain types of parabens. These include a certain strain of Microbulbifer marine bacterium, which has been shown to produce types of parabens naturally.
Two studies that claimed to have found naturally occuring parabens, both from researchers at Colorado State University, were retracted several years after their publication.
The fact is that parabens do exist rarely in nature, but it is highly misleading to claim that they are a common constituent of fruits or vegetables. Meanwhile, a growing body of scientific evidence lends credence to health concerns from paraben exposure.
Companies have started responding to pressure from consumers and health advocates, and have taken voluntary steps to remove paraben compounds from their products. Despite this, there are still many products that contain parabens. Consumers can benefit from using EWG’s consumer guides to help minimize exposure to these chemicals in cosmetics and food.
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Canada Proposes Toxic Designation for Microbeads
Aug 3, 2015 | BNA Daily Environment Report
By Peter Menyasz
The Canadian government has proposed designating microbeads as toxic and developing regulations to restrict their entry into the environment, including banning their use in personal care products.
The government intends to add microbeads to the List of Toxic Substances in Schedule 1 to the 1999 Canadian Environmental Protection Act (CEPA), Environment Canada said in a regulatory impact analysis accompanying a draft order in the Aug. 1 issue of the Canada Gazette, Part I, made public July 31.
“This would enable appropriate preventative measures to be taken to reduce the release of microbeads to the environment,” the department said.
The draft order is open to public comment through Sept. 30.
In a separate notice also published July 31, the department said it plans to develop regulations under the CEPA to prohibit the manufacture, import, sale and offer for sale of microbead-containing personal care products used to exfoliate or cleanse. The notice is open to comment through Oct. 15.
Environment Canada also published in the July 31 Canada Gazette a notice requiring Canadian industries to submit information on their import, export or use of microbeads.
Science Synopsis
The order and notices were accompanied by a synopsis of a science summary report conducted on microbeads, which outlines the results of a priority review initiated by the government in March (60 DEN A-10, 3/30/15).
The Canadian Parliament unanimously voted March 24 to take steps to designate microbeads as toxic.
Environmental group Ecojustice welcomed the government's intention to classify microbeads as a toxic substance and ban their use in personal care products. “We look forward to the swift introduction of regulations that will bring this ban into force,” said Devon Page, the group's executive director.
Additional details on the ban remain to be seen, but Page said he hopes they will extend to so-called biodegradable microbeads, which may only partially degrade and leave residual fragments, or degrade into toxic inorganic compounds or degrade over a such a long period that they are ingested by wildlife while still whole.
“Let's make sure we get this ban right the first time and ensure that we are banning all manner of microbeads,” he said.
Committed to Act
The Canadian Cosmetic, Toiletry & Fragrance Association (CCTFA) did not respond to a Bloomberg BNA request for comment on the proposed federal actions. In March, the group said it welcomed as “very timely” the government's decision to review microbeads. The group said it was committed to eliminating the use of microbeads and had been working with federal agencies on the issue for 18 months.
Environment Canada confirmed July 31 that producers of microbead-containing personal care products, in response to environmental lobbying and studies, have committed to phase out their use during the next few years. Of 14 CCTFA members that responded to a voluntary survey in 2015, five had already stopped using microbeads and nine had committed to doing so by 2018 or 2019, it said.
The department noted that the U.S. states of Colorado, Illinois, Indiana, Maine, Maryland, New Jersey and Wisconsin have introduced legislation to prohibit microbeads in personal care products, and that other states and Congress are considering similar legislation. The European Union also is considering action in response to requests from countries, including Austria, Belgium, Luxembourg, the Netherlands and Sweden.
The small size of microbeads allows them to slip through wastewater plants and end up in rivers, lakes, seas and oceans, Environment Canada said in the regulatory impact analysis accompanying the draft order. As they are composed primarily of polyethylene, they can remain in the environment for a long time and be ingested by a range of organisms.
Adverse Effects Found
Laboratory studies have shown that microbeads have adverse short-term and long-term effects on aquatic organisms, impeding feeding behavior and causing liver stress in fish, Environment Canada said. In addition, they can absorb persistent organic pollutants such as polychlorinated biphenyls (PCBs) and dichlorodiphenyltrichloroethane (DDT), which makes them harmful to organisms that ingest them, the department said.
Microbeads are used in industrial processes, including as abrasive agents for removing paint from boats and ships and as drilling fluids in oil and gas exploration. They are widely used in consumer products, including soaps, facial cleansers and toothpaste, as well as in medical and dental applications, such as tooth polish. They also are used as raw material in plastics production, but those releases are minimized through current industrial processes.
Microbeads are defined as synthetic polymer particles which, at the time of manufacture are greater than 0.1 micrometer and less than or equal to 5 millimeters in size.
Industry Information Required
The Environment Canada notice requiring industries to submit information on microbeads applies to any person who imported, exported or used more than 10 kilograms of the substances in a mixture or product for personal care use.
It does not apply to microbeads in transit through Canada, microbeads contained in hazardous wastes or hazardous recyclable materials, or microbeads used in pest-control products, fertilizers or prescription drugs.
The notice requires information on which categories of substances were involved, based on a list of designated consumer and commercial codes, as well as total quantities, concentrations and numbers of salable units.
Failure to supply requested information is subject to penalties under Section 271 of the Canadian Environmental Protection Act, including fines of up to C$12 million ($9.2 million) and jail terms of up to three years.
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EU Calls for Comments on Functioning of Pollutant Registry
Aug 3, 2015 | BNA Daily Environment Report
By Stephen Gardner
The European Commission is calling for input through Oct. 15 on the European Union's European Pollutant Release and Transfer Register Regulation (E-PRTR, (EC) No 166/2006), under which information on pollutant emissions from industrial sites in the bloc is published online.
The commission said the consultation, which opened July 23, would help it evaluate the “effectiveness, efficiency, coherence, relevance and the EU added value” of the E-PRTR Regulation.
Consultation questions cover the ease of collating data for the E-PRTR and providing it to the commission and the European Environment Agency, which oversee the public database, and the usefulness and user-friendliness of the E-PRTR website.
The E-PRTR was established in 2009 and consists of a searchable database that reports annual data on 91 pollutants emitted from about 28,000 facilities involved in activities such as chemicals production, energy generation, waste management, mining and livestock production.
The database, which is similar to the U.S. Toxics Release Inventory, can be searched by facility, by pollutant and type of emissions, or can generate aggregate data (217 DEN A-4, 11/13/09).
The commission said it would publish an evaluation of the E-PRTR Regulation in 2016, and this “may lead to new policy objectives.”
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Chemical Facility Security Program Improves
Aug 3, 2015 | Chemical & Engineering News
By Glenn Hess
After years of criticism about delays, the Department of Homeland Security (DHS) has ramped up its rate of reviewing and approving security plans prepared by “high-risk” chemical facilities, a congressional report says.
These facilities, which would pose the greatest danger if attacked, must prepare and implement the security plans under the department’s eight-year-old Chemical Facility Anti-Terrorism Standards (CFATS) program.
The report by the Government Accountability Office (GAO), the investigative arm of Congress, estimates that it could take between nine and 12 months for DHS to review security plans for the remaining 900 chemical sites awaiting approval. That’s a significant improvement over GAO’s 2013 estimate that department approval of plans for all affected facilities could take as long as nine years to complete.
Sen. Tom Carper of Delaware, the top Democrat on the Senate Committee on Homeland Security & Governmental Affairs, says the report “shows DHS has made real progress” on CFATS.
But the report also says the program has other problems.
DHS has used unverified data to calculate the risk level posed by some facilities, GAO says. The report estimates that about 44% of the high-risk facilities may have misreported the scope of the area surrounding the facility that could be at risk if a toxic release occurred there.
Some 2,900 of the 37,000 U.S. chemical facilities that have provided data to DHS could pose a threat of exposing surrounding populations to toxics if attacked by terrorists, GAO adds.
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CSB Approved Contracts Without Required Safeguards -- IG
Jul 31, 2015 | E&E News PM
By Sam Pearson
The U.S. Chemical Safety Board's poorly defined contracting policies have put at least $1.9 million at risk, the U.S. EPA inspector general said in a new report.
The report released today found CSB has failed to implement internal controls to ensure that acquisitions including interagency agreements, contracts and purchase orders costing more than $50,000 receive board approval.
Under a previous CSB policy, Managing Director Daniel Horowitz was permitted to approve contracts less than $50,000 in value, while the consent of the chairman or the full board was needed for contracts above $50,000 in value.
But the IG's office said it found 13 contracts totaling more than $1.9 million that lacked the proper approvals -- including contracts for hundreds of thousands of dollars each that were approved by Horowitz but lacked documentation that either former CSB Chairman Rafael Moure-Eraso or the full board had signed off.
Horowitz and General Counsel Richard Loeb are currently on administrative leave during an agency investigation of their conduct.
The CSB also did not take steps to verify whether some contracts were priced appropriately, the report said.
The issue was also complicated by the CSB's replacement of a series of old board orders at a January 2015 meeting without clearly defining how its acquisitions process would go forward, the IG's office said.
The IG's office said it began an investigation of CSB contracting procedures when it received a complaint on a phone hotline that CSB had improperly awarded a $1 million contract.
Last year, the IG issued an early warning report finding that CSB failed to implement internal controls to ensure that acquisitions and contracts costing more than $50,000 received board approval (Greenwire, Oct. 29, 2014).
By failing to implement contracting safeguards, the agency "is at risk for ineffective and inefficient operations," the report said.
In the agency's response to the report, CSB board member Rick Engler said the agency planned to implement the recommendations later this year.
"The CSB takes these findings very seriously and is committed to ensuring the best value from its acquisition program for the American taxpayers," Engler wrote.
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San Francisco Can't Sue PHMSA, Court Rules
Aug 3, 2015 | BNA Daily Environment Report
A federal appeals court on July 30 blocked the City of San Francisco's bid to sue the federal government to force stronger oversight of pipelines in the state. The U.S. Court of Appeals for the Ninth Circuit upheld a lower court decision throwing out a lawsuit against the Pipeline and Hazardous Materials Safety Administration. San Francisco had sued PHMSA for approving and funding the California Public Utilities Commission. Under that state regulator's watch, California has suffered several pipeline disasters, including the 2010 pipeline explosion and fire that killed eight people in San Bruno. But the Ninth Circuit affirmed the lower court's dismissal of the suit because the laws that San Francisco sued under—the Natural Gas Pipeline Safety Act and the Administrative Procedure Act—don't allow the city to bring legal action. The ruling is available at http://opns.bna.com/smms/ready/court_opinions/fed/fed_ap/fa09/13_15855_pdf__v.pdf .
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BLM Fracking Rule Proponents Argue SDWA Does Not Preclude Regulation
Jul 31, 2015 | InsideEPA
By Bridget DiCosmo
Proponents of the Bureau of Land Management's (BLM) rule governing hydraulic fracturing on public lands are countering states' claims that Congress intended to address federal regulation of fracking via EPA's Safe Drinking Water Act (SDWA) authority, saying the congressional language of SDWA clearly intended to preserve BLM's authority.
"The question is whether Congress intended one regulation to preclude the other, and SDWA says its intent is not to preclude," Hannah Wiseman, an Attorneys' Title Professor at Florida State University College of Law, told lawmakers during a July 15 hearing of the House Natural Resources Committee's energy panel. Wiseman added that SDWA's statutory report language is clear in that it was not intended to preclude regulations implemented by U.S. Geological Survey (USGS) -- BLM's predecessor in governing public lands.
Moreover, Wiseman said in her testimony, "SDWA does not address comprehensive protection of public resources" as in the Federal Land Policy and Management Act (FLPMA) and the Mineral Leasing Act (MLA), the statutory authorities under which BLM issued the rule.
Also during the hearing, Rep. Alan Lowenthal (D-CA), ranking member on the subcommittee, said BLM's authority to govern well stimulation on public lands, including fracking, "goes way back" to when USGS governed the practice, pointing out "those regulations were in place before SDWA was passed in 1974." And the House report on SDWA says very clearly Congress does not intend to repeal or limit any authority USGS may have -- it's about as clearly cut as you can get," Lowenthal said.
BLM is facing multiple lawsuits over the fracking rule, including litigation filed by Colorado, North Dakota, Utah, Wyoming, Independent Petroleum Association of America, Western Energy Alliance and two tribes, the Southern Utes and the Ute Tribe of Uintah and Ouray County.
In the industry litigation, the two energy groups claim in their suit filed earlier this year in the U.S. District Court for the District of Wyoming that the rule is a "reaction to unsubstantiated concerns" and will slow development on public lands.
But Wyoming is making the fairly novel argument in its suit, filed in March also in the district court for Wyoming, that Congress created SDWA's underground injection control (UIC) permitting regime, which governs a variety of industry activities including waste disposal, uranium mining, carbon capture and sequestration and others, to exclusively address underground injections. "The UIC program commits exclusive authority to regulate underground injections to the states and the U.S. Environmental Protection Agency," the suit argues.
The suit, State of Wyoming v. United States Department of Interior, et al. claims that the rule exceeds BLM's statutory jurisdiction, conflicts with SDWA and unlawfully interferes with Wyoming's fracking regulations. Wyoming says Congress made it clear that FLPMA does not affect other laws governing use of water on public lands, and cannot be used to modify or supersede existing federal laws for developing water resources.
EPA's Authority
Wyoming's novel argument appears to suggest that EPA should have sole authority under SDWA for regulating fracking. However, Congress subsequently in a 2005 energy law barred EPA from regulating fracking injections, except where diesel fuel is used, under the UIC program, amending SDWA to exclude fracking from the definition of "underground injection."
But Wiseman says in her prepared testimony that in providing the 2005 exemption for SDWA and a number of other statutory exemptions limiting EPA's authority on fracking, "Congress has not indicated an intent to preclude regulation by different agencies under different statutes." Moreover, Wiseman says that environmental laws are often structured to include "discrete exemptions" because lawmakers know that activity is already regulated under a different statute. Wiseman also says that the purpose of the environmental statutes is to limit the environmental "externalities" of private entities and local government activities, not "to limit a "federal agency's authority to manage federally-owned and federally-managed land in a manner consistent with its statutory mandate."
BLM's rule would update nearly 30-year-old existing standards for regulating fracking on public lands, setting requirements for disclosure of chemicals used in fracking, and relying on the state-run database FracFocus as a vehicle for chemical disclosure. The rule, which BLM first proposed in May 2012 and then later revised in a supplemental proposal, also sets requirements to ensure integrity for how fracking wells are constructed and for drilling wastewater storage.
But the federal district court in Wyoming in State of Wyoming issued a temporary stay of the rule, blocking its implementation and agreeing with state and industry plaintiffs suing over the rule that the regulation should not move forward until the court assesses its legality. Judge Scott W. Skavdahl of the U.S. District Court for the District of Wyoming announced at the end of a June 23 hearing in the case that the court is staying the rule -- originally scheduled to go into effect June 24 -- until early August. Skavdahl ordered the government to submit the rule's administrative record to the court by July 22 with the intention of issuing a ruling within a few weeks thereafter, but the judge has since granted an extension to BLM until Aug. 28.
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Shallow Fracking Wells May Threaten Aquifers
Aug 3, 2015 | Chemical & Engineering News
By Jeff Johnson
Several thousand near-surface hydraulic fracturing, or fracking, operations for oil and natural gas production in the U.S. pose a potentially significant risk of contaminating drinking water sources, according to a new analysis. This first national assessment of fracking focused on well depth raises particular concerns about fracking wells less than a mile deep (Environ. Sci. Technol. 2015, DOI: 10.1021/acs.est.5b01228).
Fracking uses water, sand, and an often-proprietary blend of chemicals, which may include benzene, toluene, and other hydrocarbons. Oil and natural gas drilling companies force the mix underground under high pressure to fracture pockets of rock and release oil and gas trapped within, which they draw to the surface.
Shallow wells are cheaper and easier to operate, says Robert B. Jackson of Stanford University, who led the new study. “However, they pose a greater risk for groundwater contamination since they are close to drinking water aquifers.” These groundwater sources can rest from hundreds to thousands of feet below the surface, and natural geologic cracks or faults and past drilling activities can provide a pathway between shallow fracking sites and an aquifer, allowing fracking chemicals, oil, and methane to reach drinking water supplies. Currently, groundwater in Wyoming and California is being investigated for possible fracking-related contamination.
Jackson and colleagues sought to better understand how widespread the risks of fracking-related groundwater contamination might be. So they analyzed the best and only data on fracking wells drilled, from a mostly voluntary well-drilling reporting system known as FracFocus. Between 2010 and 2013, nearly 7,000, or 16%, of the 44,000 hydraulic-fractured oil and gas wells that companies reported drilling were less than a mile deep, according to the team’s analysis. At least 2,600 wells were fracked at 3,000 feet deep or less, and some as shallow as 100 feet. The median depth for all fracturing wells was around 8,200 feet.
In addition, when fracking at least 2,300 of these shallow wells, drillers used large amounts of water and chemicals, more than 1 million gal per well, to initially fracture rocks and free oil and gas reserves. This subset of wells presents even higher risks of groundwater contamination, the team reports. Arkansas, for example, had more than 300 wells fracked shallower than 3,000 feet, using an average of 5 million gal of water and chemicals per well.
FracFocus relied on voluntary reporting during the study period, and Jackson estimates that the actual number of wells drilled was at least twice the reported number. Reporting requirements have become more stringent since late 2013, however, says an official with FracFocus.
Because they are cheaper to drill, shallow wells are likely to become more common, Jackson notes. But because the output in fracked wells drops by about 80% within the first two years of production, tens of thousands of fracked wells would have to be drilled each year to maintain current output, he says.
Several countries, including Germany, the U.K., and Canada require, or are considering, regulation of shallow-well fracking to guard against groundwater contamination. In the U.S., only Texas and Colorado have any policy or technical requirements for such wells so far, according to the report.
Both Jackson and Mike Nickolaus, an analyst with the Groundwater Protection Council, an organization of state water regulators, found the number of shallow wells surprisingly high. But, “depth is not the only issue,” Nickolaus notes. The margins between well and aquifer and the makeup of rock, the site-specific geology, and fracking pressure are also important. He adds that several states are considering measures that would mandate site-specific studies before drilling begins as well as groundwater monitoring before and after fracking near drinking water sources.
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Shell Begins Drilling Again in Arctic Waters
Aug 3, 2015 | BNA Daily Environment Report
By Alan Kovski
Royal Dutch Shell Plc has begun drilling at the Burger prospect in the Chukchi Sea, despite protests, opposition by many politicians, regulatory restrictions and the rigors of the Arctic offshore.
Shell hadn't drilled at the Burger prospect since 2012, when sea ice closing in on the site cut short the drilling season.
The new drilling began July 30 on a lease a few miles from the lease that was drilled in 2012. Shell holds several leases for the Burger prospect, in water about 140 feet deep 70 miles northwest of Wainwright, Alaska.
One of the several restrictions on the work is that Shell can't drill into an oil-bearing geologic layer until a capping stack is available to be deployed in the event of a loss of well control.
The capping stack is aboard an icebreaking ship, the Fennica. The Fennica needed a quick hull repair in Portland, Ore., and as of July 31 was sailing northwest toward Alaska.
“In the days to come, the team aboard the Transocean Polar Pioneer will work to complete the top portion of the well in anticipation of drilling to total depth once the Fennica arrives on site,” Shell said in a statement after the Fennica left a drydock in Portland.
The Transocean Polar Pioneer is the floating drilling rig being used by Shell for the first stage of drilling. Also available nearby is the drill ship Noble Discoverer.
Protesters organized in association with the environmental activist group Greenpeace staged much-publicized efforts to obstruct the Fennica from leaving Portland, but their efforts were no more effective than earlier efforts to stop the Polar Pioneer and Noble Discoverer from leaving their Seattle-area home bases.
“We remain committed to operating safely and responsibly and adding to Shell's long history of exploration offshore Alaska,” the Shell statement said.
Shell drilled in the Chukchi Sea a few decades ago in the same promising area but encountered natural gas rather than oil. No oil discoveries have ever been made in the Chukchi. In the Beaufort Sea, east of the Chukchi, three oil fields have been drilled from artificial islands.
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Ownership Transfer of Two Cross-Border Pipelines OK'd
Aug 3, 2015 | BNA Daily Environment Report
By Rebecca Kern
The State Department issued presidential permits July 31 transferring ownership of two existing cross-border pipelines, one between the U.S. and Canada and another between the U.S. and Mexico.
Despite issuing permits for these projects, the State Department still has yet to decide on the Keystone XL pipeline between the U.S. and Canada.
One permit transfers ownership of the Express Pipeline, running from Hardisty, Alberta, to Casper, Wyo., to Spectra Energy Partners, which acquired it from Kinder Morgan in March 2013, Devin Hotzel, spokesman for Spectra Energy, told Bloomberg BNA July 31.
The permit specifically allows Spectra Energy to connect, operate and maintain existing pipeline facilities at the U.S.-Canada border to transport crude oil, according to a July 31 Federal Register notice (80 Fed. Reg. 45697).
The second permit transferred ownership of a pipeline running from El Paso, Texas, to a pipeline junction at the Rio Grand River on the U.S.-Mexico border to Magellan Pipeline Co., a wholly owned subsidiary of Magellan Midstream Partners, Bruce Heine, a spokesman for Magellan, told Bloomberg BNA July 31. Magellan acquired the pipeline from Plains All American in 2013, Heine said.
The permit specifically allows Magellan to connect, operate and maintain existing pipeline facilities at the U.S.-Mexico border to transport liquid petroleum products, the department said in a July 31 Federal Register notice (80 Fed. Reg. 45695).
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Dems Give Clinton Pass On Keystone
Jul 31, 2015 | The Hill - E2 Wire
By Devin Henry
Green groups and Hillary Clinton’s rivals for the Democratic presidential nomination are pressing her to take a firm position on the Keystone XL pipeline.
The groups and Clinton's challengers, former Maryland Gov. Martin O’Malley and Sen. Bernie Sanders (I-Vt.), say anyone running to be the Democratic nominee needs to have a public stance on whether the Alberta-to-Texas pipeline should be built.But Clinton is getting a pass from many Democrats on Capitol Hill, even those opposed to the pipeline, something that could undercut the pressure on her to publicly say that the pipeline should be constructed or shelved.
“I think the decision is going to be made in this administration, so I think her position on this is moot,” said Sen. Sheldon Whitehouse (D-R.I.), a fierce Keystone opponent who is not pressing Clinton to come out in opposition.
“I want to make sure that she’s the president, and I think her recent video shows how important the climate priority is for her, and how she wants to develop that argument is, to me, up to her. I don’t question her judgment on this,” he said.
Even the lawmakers most opposed to Keystone gave Clinton cover on the matter.
“The climate policy is what we care about,” said Rep. Jared Polis (D-Colo.), a Clinton supporter and vice-chair of the congressional Sustainable Energy and Environment Coalition (SEEC).
“Out of respect for the president and her professional role in his administration, it would be improper for her to comment at this point on the Keystone pipeline while the decisions are currently pending.”
Clinton introduced the first aspects of her climate change platform this week but gave scant details on several issues important to environmentalists, including off-shore drilling and oil and gas policies.
Yet it was her strident refusal to say if she supports Keystone that struck home the hardest for greens.
“This is President Obama’s decision,” Clinton said. “And I am not going to second-guess him, because I was in a position to set this in motion, and I do not think that would be the right thing to do.”
She then laid out a marker for when she might offer her position: “If it’s undecided when I become president, I will answer your question,” she said.
The answer did not please environmental groups.
“We find it completely unacceptable that she cannot provide an answer,” Jane Kleeb, the founder of the anti-Keystone group Bold Nebraska, said. “She is the only candidate in the presidential race that doesn’t have an answer on where she stands on Keystone.”
Sanders and O’Malley seized on the issue, looking to bolster their credentials with environmentalists.
“It is hard for me to understand how one can be concerned about climate change but not vigorously oppose the Keystone pipeline,” said Sanders, who is trying to lead a populist challenge to Clinton.
O’Malley, trailing in the polls but touting a very liberal environmental platform, sent a note to supporters saying, “ducks and dodges — as we're seeing from other candidates — won't help: what we need is action. I know where I stand on Keystone XL and I have a plan to end our reliance on fossil fuels by 2050.”
Rep. Raul Grijalva (D-Ariz.), a co-chairman of the Congressional Progressive Caucus, hasn’t endorsed a presidential candidate yet, and he said Clinton’s wavering on Keystone is a leading reason why.
He said he thinks Clinton is eventually going to have to take a position on the issue given not only its policy implications, but its symbolic importance for many environmentalists in the Democratic Party.
“If it is a symbol, it’s an environmentally important symbol, Keystone, and to 2016, politically, a very important symbol,” he said. If Clinton were to come out against the pipeline, “I think her campaign would be very pleasantly surprised at the positive reaction. Symbol or no symbol, it’s there.”
Grijalva is one of the few Democrats on Capitol Hill to scrutinize Clinton’s silence on Keystone.
Rep. Gerry Connolly (D-Va.), an SEEC co-chair, said Clinton’s punt on Keystone is reasonable, given her position in the Obama State Department and the climate positions she’s put out.
The State Department is currently reviewing the pipeline proposal before President Obama makes an up-or-down ruling the matter. White House press secretary Josh Earnest said this week that the process will be complete before Obama leaves office.
“I don’t think environmentally-inclined voters have any illusion that Hillary is anything but a strong pro-environmental public figure and will be a strong pro-environmental president,” he said.
Rep. Keith Ellison (D-Minn.), who hasn’t endorsed a candidate, said he “assumes” Clinton opposes the pipeline because of the climate proposals she began rolling out this week. He said Clinton is right to resist taking a position just because her rivals are pushing her toward one.
“She doesn’t want to look like she’s being pushed by anybody. It’s not good for her campaign to appear to be sort of influenced. But at the same time, the base wants these things,” he said.
“At the end of the day, I wouldn’t be surprised if O’Malley, Sanders and Clinton have taken very comparable positions. “
But green groups say they don’t want to judge a candidate on assumptions alone.
Kleeb said she thinks Democrats should push Clinton to take a stand on Keystone, but she expects many of them are “playing the long game” and trying not to alienate the odds-on favorite to win the party’s nomination.
Her group, she said, will look to pressure Clinton when she campaigns near the Iowa-Nebraska border later this summer by playing a game of dodge ball outside her events.
“Us in the heartland aren’t looking for an invitation to the White House,” Kleeb said. “We’re looking for clean water.”
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U.S. Power Plant Rules More Uniform Between States: White House
Aug 3, 2015 | BNA Daily Environment Report
By Mark Drajem
The Obama administration’s plan to cut carbon emissions from existing power plants, set for release Monday, will include goals for states that are more uniform than those first proposed in 2014, a White House official said.
Brian Deese, an adviser to President Barack Obama on energy and climate issues, told reporters on a conference call that the health and economic benefits of lowering carbon pollution under the plan will be four to seven times greater than the estimated $8.4 billion cost of the regulations.
One reason that the price tag is expected to be lower than earlier anticipated is that the cost of wind and solar energy is falling, according to the White House.
The final rule aims to accomplish a 32 percent reduction in carbon emissions from the nation’s fleet of power plants by 2030, compared with 2005 levels, against 30 percent in the EPA’s original 2014 proposal. Emissions are already down 15 percent from that peak.
Credit for Renewables
The plan will accomplish this by in part by giving states credit for solar or wind projects that break ground in the next few years, before the rule takes effect in 2022. It will also force utilities to run natural gas plants more or encourage customers to use less electricity.
Power plants burning coal produce almost 40 percent of the nation’s electricity, down from about half just a few years ago. That’s forecast to decline more as these rules kick in.
The administration has bowed to industry demands, though, and will include a safety valve that would delay the rules for individual states if they threaten the reliability of electricity delivery, according to EPA Administrator Gina McCarthy. “We really don’t expect the safety valve to ever have to be used,” McCarthy said on the same conference call as Deese on Sunday.
Greenhouse Gases
The White House says that while it’s backing off on an initial deadline for the rule and making other changes to help states, the final plan will lead to more reductions in greenhouse gases long term because it will boost carbon-free energy and rely less on switching from coal to natural gas. The incentive plan will also reward states that submit plans to the White House early.
“The states that join the race first, and run it the fastest, will win both more investment in clean technologies and less air pollution for their communities,” Fred Krupp, president of the Environmental Defense Fund, a nonprofit group, said in a statement.
Democratic presidential candidate Hillary Clinton said the plan is “a significant step forward” in meeting the threat of climate change.
“It sets a smart federal standard that gives states the flexibility to choose how to reduce carbon pollution most effectively,” Clinton said in a statement, adding that it promotes a healthier environment and a stronger economy.
RNC Statement
The Republican National Committee said in response to Clinton’s statement that Obama’s plan will have “devastating consequences” for the economy and cost jobs.
One thing the EPA didn’t do is bend to complaints from utilities and discard a separate proposal to require new coal plants to use expensive carbon-capture technology. While the only coal plant now under construction has carbon capture, that rule could mean no more coal plants are built in the U.S., industry critics say.
“EPA’s final Clean Power Plan reflects political expediency, not reality for supplying the nation with low cost reliable power,” said Hal Quinn, president of the National Mining Association. On Monday, the group will file a stay to try to stop the plan from going into effect, he said.
The regulation is also expected to face lawsuits from coal-dependent states, coal producers and some utilities or power cooperatives. They argue that the EPA is exceeding its authority and forcing a reorganization of power generation for which it doesn’t have the legal mandate.
‘Unprecedented Interference’
“State leaders are angry that EPA has finalized an unprecedented interference into state authority over energy regulation and markets, clearly inconsistent with statutory and Constitutional principles,” Scott Segal, a lawyer at Bracewell & Giuliani in Washington, said in a research note Friday.
Obama pledged the U.S. will cut greenhouse-gas emissions 26 percent to 28 percent by 2025, as part of United Nations-led negotiations for a global climate accord. With the changes in this regulation, the U.S. will be on track to meet that goal, according to the White House.
One advantage of boosting renewables and relying less on natural gas is that the emission reductions after 2030 will be greater, Deese said.
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Obama Doubles Down On Historic Climate Rule For Power Plants
Aug 2, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration on Sunday unveiled a tougher climate change rule for power plants, demanding that generators cut their carbon dioxide output 32 percent in the first ever limits on the pollutant.The historic regulation from the Environmental Protection Agency (EPA) is the main pillar of President Obama’s climate agenda. It is the biggest piece of his drive to create a legacy and go down in history as the first United States president to take comprehensive action against climate change by cutting emissions of greenhouse gases like carbon dioxide.
Obama will hold an event Monday afternoon at the White House to announce the regulation, the White House said.
The EPA is asking states to formulate plans to reach specific carbon reduction goals assigned to them by 2030, from a 2005 starting point, adding up to a 32 percent reduction nationwide. If the states do not submit plans — as multiple conservative states have threatened — the EPA will write and impose its own strategies upon them.
"In doing is, the president will take the single biggest step that any president has made to curb the carbon pollution that is fueling climate change," top Obama adviser Brian Deese told reporters Sunday.
"We already limit smog and soot pollution, as well as toxics like mercury, from our power plants. But before this rule, there were no limits on carbon," said EPA Administrator Gina McCarthy. "With this plan, carbon pollution from our power sector in 2030 will be 32 percent below 2005 levels."
The administration referred to fighting climate change as a “moral obligation” to the world’s children, and called the rule “flexible and achievable.”
The administration estimates that the climate benefits, in addition to benefits from reducing other pollutants from power plants, would result in a net $46 billion benefit to the nation by 2030, along with thousands of avoided premature deaths and asthma attacks.
Compared with the carbon limits the EPA proposed last year, the final rule is 9 percent more stringent than the 30 percent cut originally envisioned.
It delays the first round of carbon goals to 2022 from 2020, a move that the White House said would result in far more renewable energy like wind and solar and less natural gas replacing coal, which is currently the dominant fuel for electricity.
But the formula for determining states’ individual carbon goals will eliminate the expectation that states implement energy efficiency measures to cut emissions. States will still be allowed to use efficiency to meet the goals, however.
And despite the added stringency, the rule is predicted to avoid little more than 0.01 degrees Celsius in global warming, since the United States’ emissions are only a small part of the world’s.
The new plan also includes incentives for states to comply early, with matching grants for reductions before the deadlines.
Nonetheless, the Obama administration sees regulations on the most carbon-intensive sector in the country as an essential step toward a strong United Nations agreement to stop climate change, which world leaders plan to sign in December in Paris.
Sunday’s announcement included two other related regulations: one with hard limits on the carbon emissions of newly-built power plants and a proposed framework for how the EPA will write implementation plans for states that do not comply.
The rules are expected to draw immediate scorn from congressional Republicans, conservative states, the fossil fuel industry and others.
Senate Majority Leader Mitch McConnell (R-Ky.) has made it a priority to fight the EPA’s main climate rule, and has tried to do so with limit success through legislation, appropriations and publicly urging all of the nation’s governors to ignore it.
He sees it as an imperative to save coal, on which Kentucky’s economy is dependent.
“I can assure you, I will not stand idly by while this administration tries to wipe out the lifeblood of our state’s economy,” McConnell wrote recently in the Cincinnati Inquirer.
Multiple states’ attorneys general have pledged to file lawsuits against the rules, including those in West Virginia, Oklahoma and Texas.
Various industry groups representing different sectors have also mentioned lawsuits as a possible way to fight the regulations.
Administration officials predicted strong criticisms of what has already become Obama's most controversial environmental rule. But the critics are wrong, they said.
"Some special interest critics will tell you that it can’t be done. They’ll say we have to focus on the economy at the expense of the environment. They’ll tell you EPA’s plan will turn the lights off and send utility bills through the roof," said McCarthy.
"But they are wrong," she concluded, citing the EPA's acid rain program in the 1990s as an example of a rule that kept electricity prices stable while improving the environment and health.
"Over the next few days, we’ll hear the same tired plays from the same special interest playbook," McCarthy said. "But the American people know better."
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Political Battle Lines Drawn On EPA Power Plant Rule
Aug 3, 2015 | E&E Daily News
By Jennifer Yachnin
U.S. EPA's final Clean Power Plan rule is set for release today, but the flow of millions of advertising dollars aimed at elevating the measure's importance in a series of competitive Senate races began months ago and is expected to steadily grow ahead of next year's Election Day.
Political observers with ties to both the environmental movement and the energy industry are reticent to openly predict how important the final rule, which aims to reduce carbon emissions from existing power plants with state-specific goals, will ultimately prove in the 2016 cycle. But both sides agree that the regulation could become a key issue in more than a half-dozen races in the battle for majority control of the Senate.
Generally, Republicans are already labeling the measure a sign of federal overreach and are warning of its dire consequences to the economic and the reliability of the electric grid. Most Democrats -- with the exception of some representing fossil fuel-heavy states and districts -- will tout its benefits to the climate.
These arguments are likely to be on display in open-seat races in Indiana, Nevada and Florida, as well as in elections for seats held by Republican incumbents in Illinois, Wisconsin, North Carolina, Ohio, Pennsylvania and New Hampshire.
Incumbents in several of those races have already drawn attention from environmental groups pumping funds into so-called issue ads -- television or digital spots that criticize lawmakers' votes but don't explicitly encourage votes for a candidate -- including Ohio Sen. Rob Portman (R), Illinois Sen. Mark Kirk (R), Pennsylvania Sen. Pat Toomey (R), Wisconsin Sen. Ron Johnson (R) and North Carolina Sen. Richard Burr (R). Environmentalists also took aim at Rep. Ann Kirkpatrick (D), who is seeking the Democratic nod to take on Arizona Sen. John McCain (R).
But Democrats are also likely to be targeted over the measures by Republicans or third-party groups that argue the new rules could hurt coal-producing states and raise energy costs for consumers.
Among the likely targets are former Ohio Gov. Ted Strickland, who is vying for the Democratic nomination to challenge Portman and previously headed the Center for American Progress Action Fund, as well as former Wisconsin Sen. Russ Feingold (D), who is attempting a comeback bid against Johnson.
The latter race could prompt callbacks to the 2010 midterm election and the failed "American Clean Energy and Security Act," commonly referred to as the cap-and-trade bill, the last time a major environmental measure became a key talking point in an election cycle. Democrats lost a record-shattering 63 House seats that year.
National Republican Senatorial Committee spokeswoman Andrea Bozek pointed to Feingold's opposition to the House bill in that cycle, when he argued it would be too harmful to his home state because of its reliance on the coal industry.
"We have a lot of Senate races in Midwestern states that will be disproportionately impacted by these regulations," Bozek said.
But Ryan Cunningham, who serves as senior vice president for energy and climate at public relations firm Fenton, warned against using the 2010 measure to predict how the Clean Power Plan will be received.
"It would be foolish to doubt that there will be efforts to use the Clean Power Plan against some folks," Cunningham said. "But there are structural differences in the law, political differences in the electoral cycle and economic differences ... that make this quite a different situation."
In particular, Cunningham highlighted reductions in the cost of renewable energy and the growth of energy efficiency programs, as well as the state-specific nature of the Clean Power Plan, as opposed to the nationwide program offered under the cap-and-trade bill.
"The flexibility is absolutely crucial," Cunningham said.
Unlike the 2010 measure, the Clean Power Plan is also not a legislative action. Although senators and House lawmakers may vote on measures aimed at decreasing or blocking funding for its enforcement -- or killing it outright -- the rule was not generated by Congress.
But Cunningham also argued that despite the prevalence of cap and trade as a talking point in the 2010 midterm cycle, Democratic support for the measure did not ultimately determine whether a member of Congress lost his or her re-election bid -- or cost Democrats control of the House.
"The general consensus was that the guys that voted for cap and trade, the bulk of them got booted out," Cunningham said, pointing to members like then-Rep. Baron Hill (D-Ind.), who is now competing for the open Hoosier State Senate seat along with a host of Republican primary candidates, including Rep. Todd Young (R), who knocked Hill out of office in 2010. "There was no traceable pattern, in actuality, between people who voted for [cap and trade] and people who got booted out."
NRDC Action Fund Director Heather Taylor-Miesle declined to cite specific races where the group is likely to target opponents of the Clean Power Plan, but she similarly argued that the regulation is unlikely to elicit a repeat of public reaction to the cap-and-trade bill.
"In this case, it's actually a really great thing. Clean energy has become something that has grown dramatically since the last time this was really a discussion before the public," Taylor-Miesle said. "Anywhere where we're going to go, we're going to highlight it."
League of Conservation Voters Senior Vice President for Campaigns Daniel Weiss asserted that Senate candidates may also look to polling data on support for renewable energy to take a position on the regulation.
"Multiple polls demonstrate strong public backing for carbon pollution reductions from power plants. U.S. Senate candidates who support the Clean Power Plan can attract support from these people," Weiss told E&E Daily. "Candidates that oppose the plan will seem more concerned about polluters' profits than public health. This could cost them valuable votes from youth, Latinos and women voters."
But voters could get a preview of the arguments over the Clean Power Plan in coming months, as candidates in two open-seat gubernatorial contests that will be settled this fall spar over the regulation.
Both Kentucky businessman Matt Bevin (R) and state Attorney General Jack Conway (D) have sought ahead of today's announcement to frame themselves as opponents of the new rule, as has Louisiana Sen. David Vitter (R), a leading candidate for his state's governorship who has been one of EPA's most vocal critics on Capitol Hill.
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365 Companies, Investors Support Power Plant Rules
Aug 3, 2015 | BNA Daily Environment Report
By Andrea Vittorio
Adidas, Ben & Jerry's, eBay and more than 360 other companies and investors are throwing their weight behind the Environmental Protection Agency's proposed plan to cut carbon pollution from power plants.
In letters sent July 31 to more than two dozen governors, the group is urging “timely finalization” of state plans to carry out the agency's power plant rules—a move likely intended to counteract an earlier op-ed piece from Senate Majority Leader Mitch McConnell (R-Ky.) calling on governors to reject the rules.
The EPA Clean Power Plan, whose release as a final rule is seen as imminent, would establish unique carbon dioxide emissions rates for each state's power sector and leave it to them to determine how best to achieve the targets.
Several coal-dependent states and industry groups have already tried to block the plan in court, although their challenges were dismissed as premature because the rule had not yet become final.
They have since asked for a rehearing (In re: Murray Energy Corp., 2015 BL 180996, D.C. Cir., No. 14-1112, 6/9/15; West Virginia v. EPA, 2015 BL 180996, D.C. Cir., No. 14-1146, 6/9/15; 143 DEN A-2, 7/27/15).
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Of the letters' 365 signatories, only a handful came from the energy sector and, of those, many are solar power producers such as SunEdison and Sungevity. The letter-writing campaign was organized by sustainability advocacy group Ceres.
“Our support is firmly grounded in economic reality,” the letter stated, as businesses increasingly turn to renewable energy and energy efficiency to cut greenhouse gas emissions and cut costs.
Sixty percent of Fortune 100 companies have set targets in these areas, reporting more than $1 billion a year in savings, according to a recent study Ceres helped write (119 DEN A-14, 6/20/14).
“Having access to clean energy choices, whether efficiency or renewable energy, helps us manage our energy-related costs while also reducing our environmental impact,” said Letitia Webster, senior director of global sustainability at VF Corp., a North Carolina-based apparel company whose brands include The North Face, Timberland and Reef. “The Clean Power Plan will enable us to continue to invest in clean energy solutions and further advance our greenhouse gas reduction goals.”
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Aug 2, 2015 | The Hill - E2 Wire
By Jordan Fabian and Tim Cama
President Obama is looking to cement his legacy on climate change.
His administration will finalize sweeping new regulations on power plants on Monday, which is sure to spark a fight with Republicans in Congress.
In a video released early Sunday, Obama called the plan "the biggest, most important step we've ever taken to combat climate change."
Obama is also pushing to complete a major international agreement on greenhouse gas emissions in Paris later this year.
To underscore his focus on climate change, Obama plans to travel to Las Vegas on Aug. 24 to keynote the National Clean Energy Summit, an event founded by Senate Minority Leader Harry Reid (D-Nev.).
The president will go to Alaska at the end of the month to speak at a conference on how global warming is affecting the Arctic.
Top Obama advisers call climate the number-one issue remaining on his plate in a second term that has featured sweeping executive actions to open relations with Cuba and to secure a nuclear deal with Iran.
“There’s not a more important and pressing issue on the president’s agenda than climate,” White House chief of staff Denis McDonough said in a speech this week.
But Obama's achievements rest on fragile ground. Many of his executive actions on climate could be undone depending on which party wins the White House in 2016.
A major climate victory has eluded Obama, who famously said in 2008 his presidency could be “the moment when the rise of the oceans began to slow and our planet began to heal.”
A 2009 global climate summit in Copenhagen is widely regarded as a failure. Congress failed to pass a cap-and-trade bill to tax carbon emissions early in his presidency.
Measures addressing climate change have been dead on arrival as Republicans, many of whom question whether climate change is man made, have taken control of the House and Senate.
Stymied by Congress, the president frequently used his executive power to craft measures like new fuel efficiency standards for cars and trucks and improvements to the federal government’s own buildings and vehicle fleets.
But the Environmental Protection Agency’s (EPA) forthcoming clean power rule is the cornerstone of the president’s climate agenda.
The rule will put in place the first-ever caps on carbon emissions from power plants, an effort to force companies to use cleaner sources of energy.
Its impact is huge: power plants account for 40 percent of the United States’ carbon emissions, the most of any sector of the economy.
"Power plants are the single biggest source of harmful carbon pollution that contributes to climate change," Obama said. "But until now, there have been no federal limits to the amount of that pollution those plants can dump into the air. Think about that."
The rules would seek to cut the power sector’s carbon output by 30 percent by 2030. And McDonough said Wednesday the rule “will be stronger in many ways than the proposed rule put forward by EPA.”
When the final version of the rule is unveiled Monday, it will demand that the power sector cut its carbon emissions even more, by 32 percent.
It will also provide incentives for early reductions and seek more new capacity in renewable energy sources like wind and solar.
Environmentalists call it the biggest step any president has taken to tackle climate change.
“It’s going to be remembered for a very long time,” added Carol Browner, who served as President Clinton’s EPA administrator and later as Obama’s climate czar. “We are going to feel the positive impacts of this rule for a very long time to come.”
But to conservatives, the climate rules cement a different kind of legacy for Obama.
“If this ends up shuttering a lot of coal-fired power plants and comes under questionable legality, I see it as something that reduces the quality of life for Americans, that poses a threat to the economy and could pose a threat to the reliability of the national power grid, as well as constitutional separation of powers,” said Nick Loris, a fellow at the Heritage Foundation.
Republicans are pledging to fight the rule tooth and nail, in Congress and the courts.
Senate Majority Leader Mitch McConnell (R), whose home state of Kentucky is a major coal producer, is urging states not to comply with the new mandate.
The Obama administration has threatened to veto any legislation that guts its climate regulations.
“When it comes to clean power plant, let me say this: we will not back down,” McDonough said. “We will veto ideological riders to stop this plan or undercut our bedrock environmental laws. And we will move forward on behalf of the American people with the vision set forward by the president.”
Lacking the votes to override a presidential veto, the GOP is most likely to succeed in battling the rule through the courts, where both sides have won recent victories in cases related to Obama climate regulations.
Obama administration officials and their allies anticipate a tough fight, but are confident the rule will withstand both threats.
“The final rollout of the Clean Power Plan will have polluters throwing everything they can at the EPA and the White House, because they know the deck is stacked against them legally,” said Joanne Spalding, an attorney with the Sierra Club.
The White House is expected to mount a vigorous public defense of the rule.
“We’re going to be on offense on this,” said Dan Utech, an adviser to Obama on energy and climate issues.
Even if they survive those threats, many Republican presidential candidates have spoken out against the rules and if elected, could take steps to roll them back.
Wisconsin Gov. Scott Walker has gone as far as saying he would strip the EPA of most of its regulatory power.
Beating back efforts to derail the rule is also critical to the United Nations climate negotiations set to conclude in Paris in December, green groups say.
Ensuring the EPA rule goes into effect will give the United States its strongest negotiating position going into the talks. It will show for the first time the country is serious about following strict limits on greenhouse gas emissions.
“The United States is the lynchpin of a serious global effort,” said David Doniger, clean air director for the Natural Resources Defense Council. “If the U.S. is in, you can make it work. And the Clean Power Plan is the lynchpin of a serious U.S. effort.”
Despite Obama’s second term climate push, not all green activists believe Obama will be remembered fondly when it comes to protecting the environment.
The administration has come under fire for allowing Royal Dutch Shell to drill exploratory oil wells in the Arctic. Al Gore, who has previously praised Obama on climate issues, called the plan “insane.”
Green groups are closely watching whether Obama allows the Keystone XL oil pipeline to be completed, a project they staunchly oppose.
The White House also faces the challenge of raising public awareness of the climate issue, which most Americans do not view as a top priority.
Climate change ranked second lowest on a list of top concerns in the U.S., with just 42 percent of Americans saying they are very concerned about the issue, according to a recent Pew Research Center poll.
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Obama, Allies Tout Climate Rule Ahead Of Monday Launch
Jul 31, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama set the stage on Sunday for the release of the nation’s most ambitious environmental regulation in decades — a crackdown on power plants’ greenhouse gas emissions that the administration hopes will put the U.S. in striking distance of achieving a global agreement to combat climate change.
The new rules and a package of incentives that Obama will announce on Monday are poised to reshape the energy industry for the coming decades, pushing states to shun coal and instead turn to wind and solar sources as part of the first-ever limits on carbon dioxide pollution from power plants.
“Climate change is not a problem for another generation — not anymore,” Obama said in a 2-minute, 26-second video that the White House posted to its Facebook page at midnight. He added that “we can’t condemn our kids and grandkids to a planet that’s beyond fixing,” repeating a phrase he has used before in promoting his climate agenda.
The administration said the final rule would be more aggressive than its earlier plan, citing a new requirement that power plants reduce their carbon pollution by an average of 32 percent in 2030 from the 2005 level, slightly steeper than the 30 -percent cut it had proposed last summer.
But it will dial back a previous emphasis on using natural gas, and it will also delay the initial compliance deadline for states by two years to 2022.
And it will reduce mandates that would force utilities to employ new, largely untested carbon capture and storage technology for new coal power plants, Gina McCarthy, the Environmental Protection Agency’s administrator, said in conference call.
Republican presidential candidates quickly ripped the plan.
Washington should develop policies that are “good for our natural environment but [also] policies that are good for our economy,” Sen. Marco Rubio said in an interview with POLITICO’s Mike Allen. But “a lot of what these people are advocating for would … hurt our economy badly.”
And former Florida Gov. Jeb Bush dubbed it “irresponsible and overreaching,” and said in a statement that “it runs over state governments, will throw countless people out of work, and increases everyone’s energy prices.”
Democratic front-runner Hillary Clinton praised the rule Sunday morning and vowed that “as president, I’d defend it.” She added: “It will need defending. Because Republican doubters and defeatists — including every Republican candidate for president — won’t offer any credible solution. The truth is, they don’t want one.”
Sen. Bernie Sanders (I-Vt.), who also is seeking the Democratic nomination, said the rule “sounds to me like a step forward in ending our dependence on fossil fuel and I support that effort,” while former Maryland Gov. Martin O’Malley wrote on Twitter that the plan “is a great step fwd, & I’d expand it to cover large emission sources beyond power plants.”
The White House spent the weekend of ramping up its sales pitch both within and outside the administration, and was preparing for its own campaign in the coming weeks to highlight the risks of climate change.
“Over the next few days, we’ll hear the same tired plays from the same special interest playbook. But the American people know better,” McCarthy said.
Still, McCarthy said EPA had lowered the expected financial benefits of the rule to between $34 billion and $54 billion annually, with annual costs estimated to be $8.4 billion. That puts the net benefit of $26 billion to $45 billion per year, a steep decline from $55 billion to $93 billion it had originally projected.
The political dynamics surrounding the rule are entirely unchanged, however: It will set up years of legal and political battling with congressional Republicans and other opponents, who call it the major weapon in Obama’s “war on coal,” and it promises to become a major point of contention for the 2016 presidential race.
McCarthy promoted the plan in a video message Saturday in which she touted the public health benefits of the plan, particularly the side effect of reducing pollutants that harm children with asthma. A set of White House talking points obtained by POLITICO called Monday’s announcement “the starting gun for an all-out climate push by the president and his Cabinet,” which will also include an upcoming visit by Obama to the Alaskan Arctic, a speech he will give later this month in Las Vegas at an annual clean energy summit hosted by Senate Democratic leader Harry Reid, and a climate discussion he plans to have with Pope Francis when the pontiff visits the United States.
The regulation also puts a capstone on Obama’s efforts to secure a legacy as the president who made a serious assault on global warming, without waiting for action from Congress — though he will have to depend on his successors to carry it through. States will also play a big role, with six governors so far indicating they won’t comply with EPA’s mandates.
Environmentalists, who have been pressing for Obama to announce the rule personally, call it a crucial first step in cutting the pollution that scientists blame for boosting the Earth’s temperatures and lifting sea levels. But they say far steeper cuts will still be needed if the world is to avoid the worst effects of climate change.
“This is a huge part of the president’s commitment to reducing greenhouse gases,” said Carol Browner, Obama’s first-term climate czar, who left the White House several months after the administration’s attempt at comprehensive climate legislation failed in 2010. “He has viewed the issue of climate change as something he has responsibility for under the law — the moral and ethical responsibility domestically, but also globally.”
Opponents vow that the rule will not stand. “We believe it’s legally deficient on a number of fronts and believe it’s going to have a terrible impact on citizens across the country,” said West Virginia Attorney General Patrick Morrisey, one of several plaintiffs who won a Supreme Court victory this summer over an EPA mercury rule.
Future legal challenges against the climate rule are also likely to end up in front of the Supreme Court.
In addition to requiring existing plants to reduce their carbon pollution, the rule imposes heavy obstacles to the construction of new coal-fired power plants, the biggest source of carbon pollution in the U.S. Together, the requirements would change the way the U.S. produces and uses electricity, continuing an ongoing wave of coal-plant shutdowns while offering legs up to natural gas, solar, wind and maybe nuclear.
Among people closely following the rule, speculation has swirled about how much the final rule will differ from what EPA originally proposed in September 2013 and last June. In addition to the roll back of an interim pollution-cutting deadline to 2022 from 2020, and the softening of the proposal to require future coal-burning plants to capture and store their carbon pollution, a mandate that could be vulnerable in court, the rule will give more leeway to states that are building new nuclear power plants to get credit for those carbon-free sources.
States are also expected to get an extra year to submit their compliance plans to EPA — 2018 instead of 2017. And the White House’s fact sheet indicates that the final plan will do significantly less than the draft proposal to promote natural gas as an alternative to coal. Instead, it puts extra emphasis on energy efficiency and renewable sources such as wind and solar power.
And EPA appears set to tweak the complicated formulas that set widely varying cleanup targets for each state, which in last year’s draft ranged from cuts of 11 percent for North Dakota to 72 percent for Washington state. The raw numbers don’t necessarily reflect the degree of difficulty: Washington, for instance, could meet most of its goal by closing one coal plant that’s already scheduled for retirement, EPA has said.
But EPA’s critics note that the rule comes amid troubling financial times for the coal industry, and might even arrive on the same day that a major coal producer — Virginia-based Alpha Natural Resources — is expected to file for bankruptcy protection. That follows several other high-profile coal company bankruptcy filings.
Environmental regulations like the carbon rule and a forthcoming Interior Department rule meant to protect Appalachian streams are only part of the reason that coal’s share as a source of the nation’s electricity dropped from nearly 50 percent in 2005 to 39 percent last year. Inexpensive natural gas, which burns more cleanly than coal, has taken a greater share of the market. And in some regions, coal deposits are becoming increasingly more difficult and less economical to mine.
Meanwhile, Obama’s earlier attempts to tackle climate change have struggled too. The House passed a cap-and-trade bill in 2009, but it died in the Senate the following year despite the Democrats holding a large majority. The president also stumbled with an anticlimactic 2009 climate summit in Copenhagen, Denmark. But he revived climate change as a theme late in his 2012 reelection campaign, declaring that “climate change is not a hoax,” and in his second inaugural address, in which he said failing to take on the threat “would betray our children and future generations.”
The credibility of those promises will be at stake in December, when negotiators from the U.S. and other nations gather in Paris to try to reach a global climate agreement.
The final rule is also timed for maximum momentum to take advantage of the final year and a half of Obama’s time in office. Litigation over the rule is likely to last through this decade and potentially into the 2020s, making the winner of the 2016 presidential race a key figure in Obama’s climate legacy.
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Rose Garden Event To Unveil Final Carbon Standards Reflective Of Industry, State Feedback
Aug 3, 2015 | E&E Daily News
By Emily Holden and Rod Kuckro
The Obama administration will unveil final rules for existing, new and modified power plants at a ceremony at the White House at 2 p.m. today.
In a call with reporters yesterday, U.S. EPA chief Gina McCarthy outlined major changes to the rules meant to answers calls from energy companies and states for more flexibility and time to implement power-sector changes (Greenwire, Aug. 2).
The rules will cut power plant carbon emissions 32 percent below 2005 levels by 2030, an increase from the draft proposal.
In other changes, the final regulations: Give states two extra years to submit plans and start making cuts. Ease interim goals into a "glide path." Contain grid reliability assurance mechanisms. Provide states with a model plan and with "trade-ready" elements for swapping compliance credits. Adopt a uniform emissions rate and assign states' goals based on their energy mixes. Even out disparate state targets. Incentivize early action to build renewable energy and implement user-side energy efficiency programs in low-income communities. Aim to shift toward renewables rather than encourage an early surge toward natural gas-fired electricity. No longer count under-construction nuclear plants in state targets but will give states credit for them and for increases in existing nuclear generation. Require carbon capture and storage for new plants but at a lower rate than previously proposed.
The nation's state air administrators who will write compliance plans give "EPA two thumbs up for responding" to many of their concerns, said Bill Becker, executive director of the National Association of Clean Air Agencies.
Electric-sector interests were cautiously optimistic about the revisions, while coal industry representatives said the new plan is a "change without a difference" and vowed to fight it until the bitter end.
Go to E&E's Power Plan Hub to read more of this weekly column and to see the latest news, state summaries and developments.
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EPA’s New Emissions Rule to Alter Energy Landscape
Aug 2, 2015 | The Wall Street Journal
By Rebecca Smith
The Environmental Protection Agency’s new rules on carbon emissions from power plants will alter the way Americans make and consume electricity, accelerating a dramatic shift to cleaner fuels, renewable energy and consumer choice.
Even as the new regulations on greenhouse gases face legal challenges, they will force sweeping changes to the once hidebound electricity business. Utility companies and state regulators will need to rewire the electric grid to accommodate more renewable power, much of it generated by customers.
Cutting carbon emissions 32% by 2030 will require billions of dollars in investments to pay for new transmission lines that accommodate more solar and wind power and new pipelines to fuel natural-gas-fired generation, as coal becomes less important as a fuel for power plants.
Utilities, which expect to spend more than $100 billion next year on capital projects, will adjust their spending programs to reflect the new rules even as court challenges proceed, experts said.
“Utilities already are moving in that direction by retiring coal plants and adding renewables,” said Nick Akins, chief executive of Ohio-based American Electric Power Co. , one of the nation’s biggest utilities, which has been a major user of coal. Though some states may object to the EPA rule, he said, most utilities “will be reaching out to our states and be very factual and objective and see if we can comply.”
Executives worry about the EPA plan’s cost, in part because it could result in shuttering power plants that aren’t yet paid off, he said, meaning consumers will still have to pay for assets that aren’t providing any benefit. Other executives said consumers may be able to trim their electricity use and keep their bills flat.
To date, states like California and those in the Northeast have been in the minority in devising programs to trim carbon-dioxide emissions.
The new rule “will act like an accelerant,” said Ted Craver, chief executive of California-based Edison International, parent of Southern California Edison. “Now all the states will have to grapple with the need to reduce carbon emissions.”
The final rule, expected to be unveiled by President Barack Obama on Monday, will call for the nation to get 28% of its electricity from renewable resources by 2030, versus the roughly 13% it got last year. States will have to put in place compliance plans by 2018 and meet their first targets for reductions by 2022.
One effect of the new rule: Utility customers won’t simply be passive consumers of electricity, as they have been for most of the past 100 years. To achieve carbon-reduction goals, they will have to become active participants. They could become sellers of power from their own mini-generators, or collect payments for cutting electricity use when the grid is stressed.
To encourage people to replace old refrigerators, furnaces and air conditioners with more efficient models, utilities are expected to pump up rebate offers.
“All the complexity of overhauling the electric system will need to be behind the curtain,” said Gil Quiniones, president and chief executive of the New York Power Authority, the nation’s biggest state-owned utility. “Utilities or new entrants who can do it well will end up the winners.”
State regulators will play a pivotal role, nudging power companies to overhaul their fleets of power plants—and to get out of the way of consumers who want to install their own solar panels, heat exchangers, basement generators, fuel cells or other technology.
U.S. utilities have installed more than 65 million smart meters that measure electricity consumption throughout the day. Many experts think this will be the technology that will drive other innovations forward—smart meters will make it possible for most consumers in California to pay time-based prices for electricity by 2019.
“Things are moving so fast,” said Michael Picker, president of the California Public Utilities Commission, the state’s utility regulator. “Every executive I talk with says there’s been more change in the past five to seven years than in the last 100 years. And it will accelerate now.”
California utilities got 27% of their electricity from renewable sources in 2014, excluding hydropower’s contribution. In a year of normal rainfall—something the state hasn’t had for four years—hydro could add 15% or more to the renewable-energy mix. The state’s aim is to get 33% of its power from clean sources and it is considering increasing the goal to 50%.
As utilities shut down big coal plants, electric-grid operators will have their work cut out to make sure the system can handle power that is flowing from many decentralized sources—think of millions of rooftop solar systems and thousands of wind turbines. Meanwhile, big utility-owned power plants that have provided around-the-clock electricity may face new restrictions that reduce their hours of operation due to emissions limits.
Statistics already are beginning to reflect the new pecking order for power generators.
In April, power plants that burn natural gas produced more electricity than those that burn coal, the first time there has been such a reversal in U.S. history, according to the Energy Information Administration. Last year, about one-quarter of the new generation added to the grid was solar generation, up 70% from 2013, and more than half came from efficient gas-fired plants. There was no significant amount of coal capacity added.
Utilities have been shutting down coal plants for several years now to satisfy requirements of other EPA rules.
Since 2011, for example, Duke Energy Corp. says it has retired 40 older coal units in the Carolinas and the Midwest and replaced them with super-efficient coal units or gas-fired plants at a total cost of $9 billion.
Atlanta-based Southern Co. , which owns utilities in four states, has invested roughly $10.6 billion in environmental controls since 1990, and Chief Executive Tom Fanning said last week it burned more gas than coal in the second quarter of the year. It is building a power plant in Mississippi that will convert coal to a flammable gas and strip out most of the pollutants, including carbon dioxide, the only project of its kind in the U.S.
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Killing EPA’s Climate Rule May Bring More Burdensome Replacement
Jul 31, 2015 | PoliticoPro
By Alex Guillén
Opponents of the Obama administration’s carbon rule for power plants contend that the regulation is convoluted, arbitrary and a major threat to the economy. But if they succeed in getting a court to kill it, the alternative could be far worse.
That’s because the EPA has little choice but to try to take on climate change somehow — the Supreme Court has already determined that the agency is obligated to regulate greenhouse gases because it determined their contribution to global warming threatens public health. And experts across the political spectrum agree that most alternatives that EPA writes could be far more onerous and costly than what the agency has proposed.
EPA has other options, but they are largely untested, have potentially absurd results and generally have been limited to speculation at think tanks and universities.
“God help us,” said David Bookbinder, a former Sierra Club chief climate counsel who more recently has represented natural gas interests, when asked about the alternatives.
EPA’s carbon rule “is the only practical way that we have to regulate this huge problem. This is it,” said Bookbinder, co-founder of the consulting firm Element VI. “And it’s not perfect, it’s not a good system, but it’s what Congress created.”
Jeff Holmstead, who ran the EPA air office under President George W. Bush, disagrees with the Obama administration’s approach to regulating carbon but sees problems with many of the alternatives that people have proposed. “The other things that have been proposed, I don’t think are very plausible,” he said.
The Clean Air Act wasn’t written with the direct intention of combating climate change. But the Supreme Court determined in its 5-4 ruling in Massachusetts v. EPA in 2007 that the agency has unambiguous authority to regulate greenhouse gases under the Clean Air Act “because greenhouse gases fit well within the Act’s capacious definition of ‘air pollutant.’” Subsequent court rulings have backed EPA’s finding that the gases endanger public health, as well as the administration’s vehicle regulations that followed. For a future EPA administrator to reverse that endangerment finding, he or she would have to determine that climate change itself is not a problem, a difficult case to make given the overwhelming scientific consensus.
EPA wrote its rule using Section 111(d) of the Clean Air Act, a little-used provision designed to regulate pollutants that aren’t subject to several other types of clean air regulation. The agency has previously used that section to regulate a handful of pollutants, including acid mist at sulfuric acid plants and gases from municipal landfills.
One key legal challenge centers on the notion that EPA cannot regulate power plants’ carbon emissions under Section 111(d) because it already regulates the plants under a 2011 mercury rule. Opponents also plan to argue that EPA is going far beyond the bounds of its authority by requiring changes beyond power plants’ fence line. (Holmstead says EPA is relying on the proper part of the law but should only be able to regulate the power plants themselves.)
The administration is confident its rule will survive — but if the Supreme Court says 111(d) isn’t a viable way to regulate carbon dioxide, what options remain for EPA?
The short answer: Nothing good.
Here are the possible avenues the agency could take:
Rely on individual pre-construction permits
For starters, EPA already has one type of authority to regulate carbon dioxide from power plants and other major industrial facilities: So-called Prevention of Significant Deterioration permits are meant to prevent big emitters from making modifications that could coincidentally increase emissions of certain pollutants.
EPA is doing this to some extent, but the relatively obscure program would be a clunky way to achieve nationwide carbon emission cuts.
It only applies to new facilities or to those that make major changes that might increase emissions. EPA can mandate changes only one facility at a time. And ultimately most states are actually in charge of PSD permitting.
“Plodding would hardly be the word for it,” Bookbinder said.
Regulate CO2 like mercury
Another option, using the same provision of the Clean Air Act that EPA used for its mercury rule, doesn’t exactly thrill the industry either.
Section 112 is designed to tackle hazardous air pollutants, a category meant to include dangerous substances like acid gases, chromium, benzene and vinyl chloride. EPA technically could list carbon dioxide and the other greenhouse gases as HAPs, though it would likely have to convince a court that they qualify.
But the law is rigid when it comes to HAPs, including a requirement that EPA regulate any facility that emits more than 10 tons of pollution per year, a threshold that would hit many homes in America if it were applied to carbon dioxide. To avoid such a scenario, EPA tailored its PSD permitting requirements to apply only to existing facilities that emit at least 100,000 tons of CO2.
If it were forced to use Section 112, EPA could probably work out a way around regulating individual households, but “literally you would have probably millions of major sources subject to” the standards, said Holmstead. “I just think that’s not really a very credible thing.”
Treat CO2 like ozone
Another idea some environmental groups once pushed for is to regulate carbon dioxide and other greenhouse gases directly under the National Ambient Air Quality Standards program, which covers ozone, particulate matter, lead and other toxic emissions.
The Center for Biological Diversity, an environmental group, petitioned EPA to do just that back in 2009. The agency never responded, and CBD senior counsel Bill Snape says the group has decided not to pursue that option because of EPA’s subsequent work on the Clean Power Plan.
Were EPA to designate a carbon dioxide standard, it would be a nationwide standard that each state would be responsible for meeting. The problem is that the program was designed for pollutants that remain concentrated near where they were emitted, so cities and counties could be held accountable when they miss EPA’s target — but carbon dioxide doesn’t behave the same way.
Were EPA to set a standard of, as greens wanted, 350 parts per million, the entire United States would be out of attainment; the National Oceanic and Atmospheric Administration said that earlier this year, carbon dioxide concentrations in the atmosphere exceeded 400 parts per million for the first time since measurements began.
States are unable to do anything on their own to reduce that level: Because carbon dioxide disperses evenly throughout the atmosphere, it does not matter whether particles were released in Paris, Texas, or Paris, France. Rising global emissions would overwhelm any domestic reductions, even if U.S. emissions were to somehow drop to zero.
Snape insisted EPA could still set an air quality standard for carbon dioxide, and that it could set emissions budgets for states and give them credit for reducing emissions, even if overall concentrations continued to rise.
But others say the program would be unworkable.
“Talk about ridiculous and futile,” Bookbinder said, noting the inability of states to reduce global carbon levels. “That is clearly not a mechanism that has any possibility of being used.”
Create a North American pact?
Another largely rejected proposal relies on a part of the Clean Air Act — Section 115 — that could force states to take action if a foreign nation complains about U.S. pollutants. Think of it as an international version of EPA’s Cross-State Air Pollution Rule.
That largely untested part of the law was meant to help solve disputes with Canada or Mexico, not to tackle global carbon emissions.
But in 2009, Roger Martella, EPA’s top lawyer for part of the George W. Bush administration, published a paper mulling the possibility of using Section 115 to regulate greenhouse gases. It might be “the most effective, flexible, economically reasonable and legally supportable means by which to regulate greenhouse gas emissions,” he wrote six years ago.
Martella told POLITICO this week that he no longer believes that to be the case because of the Obama administration’s decision to require carbon dioxide controls as part of the pre-construction PSD permits. If regulations under 115 were added now, it would create a “dual regulatory regime, adding burdens without additional benefits.”
“I think if we had a time machine and could go back in time, 115 would have been the best way for EPA to address greenhouse gases holistically under the Clean Air Act,” he added.
A 2013 petition from the Institute for Policy Integrity, a think tank at the New York University School of Law, also called on EPA to regulate via Section 115 as well as Section 615, which gives EPA authority to regulate emissions that harm the ozone layer.
But Martella doubts that strategy. Section 615 was a “specific provision that served its purpose and doesn’t provide additional authority,” he said.
Any effort under Sections 115 or 615 would likely to run into the same problems as the ambient air quality standards option: There is essentially nothing states can do on their own to reduce greenhouse gas emissions on a global scale.
Other creative ideas to tackle carbon emissions — like deriving authority from clean water laws because of ocean acidification, or relying on the Endangered Species Act because greenhouse gas emissions are melting polar bears’ habitat — run into similar issues with ineffectiveness.
“I really think EPA is reaching the limits of what it can do,” said Martella. “To go much further is going to require… Congress to give it new authorization or the states to take action on their own.”
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EPA Sued Over Toxics Standards Determination
Aug 3, 2015 | BNA Daily Environment Report
By Andrew Childers
Environmental groups are challenging the Environmental Protection Agency's determination that it has met its legal obligation to regulate industrial facilities responsible for at least 90 percent of the emissions of mercury and six other toxic pollutants (Sierra Club v. EPA, D.C. Cir., No. 15-1246, 7/31/15).
The EPA gave no prior notice that toxic pollutant emissions limits it has issued for various industrial sources in the past were intended to fulfill its obligation under Section 112(c)(6) of the Clean Air Act to control those seven pollutants, James Pew, an Earthjustice attorney representing the Sierra Club and California Communities Against Toxics, told Bloomberg BNA July 31. Pew said the EPA has argued that the emissions controls required by the various air toxics standards it had issued in the past also were sufficient to control emissions of the seven pollutants listed under Section 112(c)(6).
“EPA is essentially saying now, ‘Oh, we really did regulate those sources for these pollutants, and we did it through surrogates, and we didn't mention it at the time,' which was ridiculous,” Pew said.
The lawsuit was filed July 31 in the U.S. Court of Appeals for the District of Columbia Circuit.
The environmental groups are challenging a June 3 EPA rule (RIN 2060-AS42) in which the agency said it has fulfilled its duty under Section 112(c)(6) to regulate the source categories responsible for at least 90 percent of the aggregate emissions of alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin. The rule listed the various regulations that the agency believed satisfied the control requirement as of February 2011 (80 Fed. Reg. 31,470; 101 DEN A-1, 5/27/15).
“If they really contend they've done the standards, we need to see some record evidence of that,” Pew said. “But there isn't any yet.”
Court Vacated Previous Determination
The U.S. Court of Appeals for the District of Columbia Circuit vacated the EPA's prior March 2011 determination that it fulfilled its requirements under Section 112(c)(6) as part of a lawsuit brought by the Sierra Club (Sierra Club v. EPA, 699 F.3d 530, 75 ERC 1644, 2012 BL 295906 (D.C. Cir. 2012) ).
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EPA Strengthens Final ESPS And Sees Coal Generation Taking A Bigger Hit
Aug 2, 2015 | InsideEPA
By Lee Logan
The Obama administration is unveiling final greenhouse gas (GHG) standards for the existing power fleet Aug. 3 that are expected to cut emissions by 32 percent from 2005 levels by 2030, a steeper decline than the 30 percent cut envisioned by the proposed version, due largely to a larger decline in coal use and greater use of renewables.
Some of the change is due to steps the administration took in the final version of the rule. For example, the final plan includes “more uniform and less varied” state GHG reduction targets, in part due to a change in the goal calculation that applies a national emissions rate to similar types of power plants in different states, EPA Administrator Gina McCarthy said during an Aug. 2 press call before the rule’s release.
“A plant in Ohio is now treated the same as a plant in New Mexico,” she said. “Every state goal is now being looked at as basically how that uniform standard applies [to] their energy mix.”
For the existing source performance standards (ESPS), the new target-setting formula is likely to require greater cuts in coal-heavy states, given that a uniform emissions standard would be applied to states with many high-emitting coal plants, and also to states with few coal units. The exact state goals were not released Aug. 2 ahead of the rule’s official release.
McCarthy said the agency received comments that it is customary in a Clean Air Act rule to create the same standard for similar units. “We found many of those comments were compelling,” she said.
Even though the new formula will change many states’ goals, McCarthy said, “all of these standards remain reasonable and achievable. While those numbers may change, they’re all entirely doable and it’s affordable and it will not threaten reliability.”
Overall, the agency projects coal to take a greater hit under the final rule than under the proposal. The agency now projects coal to be 27 percent of the country’s energy mix in 2030, compared to an equivalent figure of 30 percent under the proposal.
The administration says the final rule will drive a “more aggressive transition to zero-carbon resources,” projecting that the share of renewables in 2030 will be 28 percent, compared to 22 percent under the proposal.
The earlier version “relied on a large, early shift of coal generation to natural gas,” the administration says. Instead, that “rush to gas is eliminated” in the final rule. Officials project the share of gas generation to be roughly flat compared to a business-as-usual case.
But the changes are already drawing heated criticisms from the administration's most ardent coal critics. “EPA’s final Clean Power Plan reflects political expediency, not reality for supplying the nation with low cost reliable power,” the National Mining Association said in a statement. “Left in place are targets for replacing affordable energy with costly energy. These will burden Americans with increasingly high-costs for an essential service and a less reliable electric grid for delivering it. “
President Obama will release a suite of power plant GHG rules Aug. 3. In addition to the final ESPS, he will unveil a proposed federal implementation plan (FIP) for those states that decline to develop their own plans for complying with the ESPS, and a companion new source performance standards (NSPS) rule for new power plants.
Legal Prerequisite
The coal sector also took a hit in the NSPS, which is a legal prerequisite that must be in place before EPA can implement an ESPS. Contrary to early reports, the administration has decided to retain a standard that requires new coal-fired units to install carbon capture and sequestration (CCS) technology, though the standard would require a lower level of carbon dioxide (CO2) capture than the proposed version.
“We think that remains reasonable as well as available for new coal units moving forward,” McCarthy said, adding that plants would need a “simple CCS unit” to meet the new emissions standard.
But industry officials are already warning that the inclusion of CCS, an emerging technology, is a legal weakness for the climate package, given the Clean Air Act requirement that any requirement be based on “adequately demonstrated” technology.
In a release, Bracewell & Giuliani attorney Scott Segal, who represents a group of coal-fired generators, says the move would undermine the NSPS “largely because CCS systems are not currently used in a sufficiently viable format to justify a regulatory standard.”
While the industry has seen “interesting and important innovation” at plants such as Southern Company’s Kemper plant, he says that is not sufficient for an EPA standard. “Also, if the Agency produces a legally suspect rule for new power plants, then it cannot sustain the Clean Power Plan generally,” he says.
Although she did not discuss specific legal arguments, McCarthy reiterated her long-standing claim that the rule is legally sound. The final version explains “legally how the changes were made and how this remains within the four corners of the Clean Air Act. It remains a very strong rule.”
Obama has sought to make the rule part of his broader legacy in addressing climate change. In a video posted early Aug. 2, President Obama called the final ESPS “the biggest, most important step we’ve ever taken to combat climate change.”
McCarthy said the final rule will include total compliance costs of $8.4 billion in 2030, compared with total health and climate benefits of between $34 billion and $54 billion. The net benefits, she said, are between $26 billion and $45 billion. Overall, the rule would result in 870 million fewer tons of CO2 emissions in 2030 than business as usual.
McCarthy compared such annual compliance costs to the roughly $100 billion per year that utilities already spend on infrastructure upgrades. She added that the rule sends “a long-term investment direction signal that I think the energy world will be able to take cognizance of.”
Lawsuits from states and industry are expected to be filed promptly after the rules appear in the Federal Register, a step that McCarthy said would “follow a standard process,” contrary to rumors that the administration would delay publication until after this December’s United Nations climate talks.
Reliability Measures
Even before officials briefed reporters publicly, several other changes to the final rule package had leaked. For example, officials decided to extend by two years the deadline for states to submit their final ESPS compliance plans to 2018, as well as the start of the rule’s “interim” compliance period to 2022.
Those changes were intended to ease concerns that the proposed deadlines were unachievable and, in the case of the interim compliance period, would have resulted in steep emissions cuts that would threaten reliability. To further address reliability concerns, the final rule will also include multiple interim compliance periods.
McCarthy also said states will be required to address reliability in their state plans, and EPA agreed with industry calls to include a reliability “safety valve” for plants that must run more than anticipated to protect reliable electric service.
“This is an opportunity to deal with a situation that, frankly, we don’t see happening,” she said. “But it’s an opportunity for us to have an insurance policy against any situation that would threaten the energy system.” She added that the tool is “narrowly crafted,” and that “we really don’t expect the reliability safety value to actually be used.”
Further, the final rule includes a change that will please three Southeastern states – Georgia, South Carolina and Tennessee – which have under-construction nuclear plants. It will remove such plants from the target-setting formula, but allow their generation to be used as compliance. It will also credit uprates of existing plants as new carbon-free power that can be used to comply.
But it is not clear whether these steps will satisfy the power sector. The Edison Electric Institute, which represents investor-owned utilities, says in an Aug. 2 statement that, “our primary concern remains the overall timing and stringency of the near-term reduction targets. The industry asked that EPA provide sufficient time for states to craft compliance plans and then subject those plans to critical reliability reviews, and we are hopeful the final guidelines will address this issue.”
Energy Efficiency
Reports also emerged that the final rule dropped agency assumptions about states' ability to improve energy efficiency as part of the goal-setting formula.
But officials also created a new program to encourage more renewable energy and energy efficiency in the early years of the program. The final rule will also offer federal “matching credits” to states that make early GHG cuts before the new 2022 start to the compliance window. Credits would be available for renewable power produced in 2020 and 2021, and double credits would be given for energy efficiency programs in low-income areas.
“These credits will be well utilized. We think will this will be fully subscribed,” McCarthy said, though it is unclear whether the program will include any cap on credits.
With “full utilization of the incentive program,” the administration says in a fact sheet, the rule would cut power sector GHGs by 27 percent from 2005 levels by 2020, which is “consistent with the reductions achieved in the proposed rule.” Cuts in 2025 would also be consistent with the proposal, the fact sheet says.
Hitting those targets will be critical, given that the ESPS will play a major role in Obama’s pledge to reduce economy-wide emissions 26 to 28 percent by 2025. The proposed rule was seen as achieving roughly half of that commitment, which is part of this December’s U.N. climate talks in Paris.
Trading Programs
EPA is also seeking to encourage emission trading programs, specifically blessing the concept of “trading ready” states that craft their own compliance plans with a set of “common elements” that would allow power plants to opt into a broader emissions trading market alongside plants located in other states with similar plans.
The agency will also release a proposed FIP Aug. 3, which it describes as a “model rule,” that would create a framework for states to opt into that broader market. The federal plan “sets a structure for all states to follow if they choose,” she said, adding that states have “many different paths toward trading.”
The proposed federal plan will be “cost-effective,” McCarthy said, “and it lets [states’] power plants use interstate trading right away. But they don’t have to use our plan. They can cut carbon pollution in any way that makes sense for them.”
If states refuse to submit compliance plans – and roughly six governors have already threatened to do so – EPA has pledged to impose its FIP on those states to secure an equivalent level of GHG cuts. Importantly, McCarthy said the final ESPS, which sets default rate-based targets for each state, will also include mass-based standards, an approach that trading proponents have said is crucial as goals that measure only tons of CO2 would more easily accommodate trading.
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New EPA Rule On Greenhouse Gases The Latest Blow to King Coal
Aug 1, 2015 | The Washington Post
By Steven Mufson
When coal was king, it fueled more than half of the nation’s electricity. It fired up American industry and powered an ever-growing variety of household appliances and electronics. And American presidential hopefuls paid homage to coal, courting mine owners and miners whose unionized ranks once numbered more than 400,000.
Barack Obama was no exception. As a state legislator in 2004 and again as a U.S. senator, he supported proposals for huge federal subsidies to turn coal into motor fuel and ease America’s reliance on oil imports. “With the right technological innovations, coal has the potential to be a cleaner-burning, domestic alternative to imported oil,” Obama said in June 2007.
All of that has changed. On Monday, the Obama administration takes on the coal industry with the final version of rules it has dubbed the Clean Power Plan, a complex scheme designed to reduce, on a state-by-state basis, the amount of greenhouse gases the nation’s electric power sector emits. The main target: coal.
Today, more people in the United States work jobs installing solar panels than work in the coal industry. Ideas for using liquefied coal for cars never materialized. Industrial users have become more efficient. And coal’s share of electricity generation is waning, with natural gas and renewable energy taking its place. Only a handful of coal power plants have been built in recent years, and the Sierra Club keeps a tally of canceled coal-fired power plants like trophies on the wall.
The reason for the focus on coal is that it remains the largest U.S. producer of greenhouse gases at a time when President Obama is striving for an agreement at the December climate summit in Paris. In March, the United States submitted its own goal to the United Nations, vowing to reduce by 2025 U.S. greenhouse-gas emissions by 26 percent to 28 percent below 2005 levels. Trimming coal emissions must be a part of that.
The president has been leaning on other world leaders one by one — from China, India, Brazil and more — to make commitments to slash emissions. China pledged to a peak year for emissions; India came up with daunting renewable-energy targets; and Brazil said it would protect rain forests that absorb vast amounts of carbon dioxide.
But while the president has made inroads abroad, he has had to fight a rear-guard action at home, where Republicans, led by Senate Majority Leader Mitch McConnell (R-Ky.), have accused him of waging a “war on coal” — and the jobs that go with it. Obama has said his energy policy is an “all of the above” strategy, and his energy secretary, Ernest Moniz, has encouraged Southern Co. in its effort to build a highly efficient coal plant that would inject carbon dioxide emissions into old oil fields to enhance recovery and store the carbon dioxide there permanently.
But carbon capture and storage is costly. Moreover, natural gas is suddenly cheap. And utilities have been turning to natural gas, especially since oil and gas companies using fracking techniques have figured out how to tap vast natural gas resources locked in shale rock.
Natural gas emits about half the greenhouse gases as coal does during combustion. Obama has talked about natural gas as a “bridge” to a renewable future, and increasingly, Obama’s “all of the above” strategy has looked like an all-but-one strategy.
The executive branch can impose its will on states and utilities because of the Clean Air Act. The legislation was intended to reduce emissions of sulfur dioxide, nitrogen oxides and mercury that cause soot, exacerbate asthma and damage brain cells. But on April 1, 2007, the Supreme Court ruled that carbon dioxide was also a pollutant and therefore subject to regulation by the Environmental Protection Agency.
As president, Obama initially supported a different way to restrict carbon dioxide emissions: a cap-and-trade system that would have tried to harness market forces within a set of administrative rules. But that did not pass in the Senate. Another approach, restricting carbon emissions by taxing them, has never garnered much support in a Congress opposed to any tax increases.
That has left the Obama administration with the regulatory option and put it on a collision course with McConnell. The Republican leader has urged states to rebel against the EPA plan, just as he encouraged states to withhold their cooperation with the Affordable Care Act. In the end, ironically, the states trying to assert their opposition will sacrifice the flexibility they have under the Clean Power Plan. The EPA is setting targets, but states can come up with their own strategies. If the states refuse, only then will federal regulators impose a plan of their own.
In the end, the Republican resistance to the EPA’s Clean Power Plan should find little basis in law. Whatever the quality of the EPA’s plan may be, it has a legal responsibility to press ahead.
In its 2007 ruling on whether the EPA could — indeed, must — regulate carbon dioxide, the Supreme Court said: “Agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed.”
“Foes of the Clean Power Plan have admitted they hope to ‘gum up the works’ for the EPA with their barrage of litigation. But they are likely to lose,” David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, said in a statement.
The business world understands this well, whatever the politicians might say. And many utilities have been changing their mix of fuels not only to meet earlier EPA regulations and renewable quotas adopted in more than half of U.S. states, but also for their own business reasons, cutting costs and boosting profits.
Duke Energy, for example, has retired 40 of its older coal units across the Carolinas and the Midwest since 2011 and replaced them with natural gas plants and “state-of-the-art” coal plants that are more efficient. In Florida, Duke has invested more than $3 billion in new generation, allowing for the retirement of half of the state’s coal-fired fleet by 2018, the company said. The company is also investing in some renewable projects.
All this talk about killing coal hasn’t helped coal mining companies. Over the past 15 months, Walter Energy Inc., Patriot Coal Corp. and James River Coal Co. have filed for bankruptcy, hit by particularly sharp drops in coal used in the manufacture of metallurgical coal needed for making steel. Alpha Natural, a major supplier to power plants, is teetering and is contemplating bankruptcy, too, according to Bloomberg News.
Still, coal isn’t done yet. The arithmetic of electricity is challenging. The EPA is trying to reduce electricity use while the country’s population and gross domestic product keep growing — no small feat. Although the Clean Power Plan leaves room for nuclear energy, high capital costs and long construction times have kept nuclear plants off most drawing boards. Only five are under construction; they will just barely offset a handful that closed recently.
But there’s no question that the outlook for coal has changed. Although the National Mining Association says coal plants generated 57 percent of U.S. electricity as recently as 1988, coal-fired power plants still provided a more modest 34 percent of electricity generation in the first five months of this year, according to the Energy Information Administration. (Wind accounted for 4.4 percent in 2014, the EIA says.)
Coal advocates liked to call the United States “the Saudi Arabia of coal.” Today, however, the vast U.S. reserves are more often described in accounting terms as “stranded assets,” meaning that a portion will never be tapped. Coal still provides much of the energy needs of the United States, but it has lost its throne.
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D.C. Circuit Urged To Impose Emergency Suspension Of EPA Utility MACT
Jul 31, 2015 | InsideEPA
By Stuart Parker
A Western electric utility is urging the U.S. Court of Appeals for the District of Columbia Circuit to impose an emergency suspension of an acid gas emissions limit in EPA's remanded utility air toxics rule, citing lingering doubts over the fate of the rule following a Supreme Court ruling faulting EPA's initial justification for the rule.
In a July 31 emergency motion, Tri-State Generation and Transmission Association asks the D.C. Circuit to issue an order before Sept. 1 suspending an obligation for the company's Nucla Station power plant in Colorado from having to meet the rule's hydrogen chloride (HCl) emissions limit. The suspension should stay in place until EPA issues a new finding on whether the overall rule is “appropriate and necessary,” according to the filing.
The Nucla Station plant, like approximately 165 others, has a one-year extension for compliance with the maximum achievable control technology (MACT) rule and therefore would otherwise have to comply by April 16, 2016. Under the terms of the extension, the company must currently decide by Sept. 1 whether to shut down the plant or “spend millions” to meet the HCl pollution limit. As such an investment might not be cost-effective, the company wants to await the outcome of litigation over the rule.
In a 5-4 ruling issued June 29, the Supreme Court in Michigan v. EPA agreed with industry, some states and others critical of the MACT rule that the agency should have considered costs in its its initial finding that it was appropriate and necessary to issue a MACT.
EPA said the Clean Air Act was silent on the issue and therefore it did not have to consider costs for the finding, and instead assessed costs at a later stage when it crafted the actual emissions limits in the final air toxics rule, which is also known as the agency's mercury and air toxics standards (MATS).
But the majority of justices disagreed and said costs should have been considered upfront, remanding the rule and litigation over it to the D.C. Circuit. The appellate court in a 2-1 ruling issued in April 2014 in White Stallion Energy Center LLC, et al., v. EPA, et al. had upheld the rule, but the justices' decision means that the court will now have to reconsider that decision in light of the high court saying that EPA should have factored costs into its finding.
Tri-State now argues that the remand means the D.C. Circuit should act before Sept. 1 to freeze the company's HCl emissions limit compliance obligation for the Nucla Station “unless and until EPA makes a new 'appropriate and necessary' finding in light of Michigan. Specifically, Tri-State requests that, if the MATS Rule is remanded without vacatur and EPA makes such a finding, the Nucla Station compliance obligation for HCl be tolled for at least the number of days between the Supreme Court’s decision in Michigan and the effective date of the new finding.”
Failing to grant the suspension by Sept. 1 -- the deadline set under the Nucla Station plant's one-year extension agreement for a decision on whether to shut down or install controls -- would “make a mockery” of the Supreme Court's ruling Tri-State argues, because it could force the company to make unnecessary major pollution control investments. Installing controls will disproportionately hurt low-income customers of the plant who will bear the cost of the controls through higher electricity prices, the company says. Closing the plant will hurt the town of Nucla, where the plant is a major employer and taxpayer, Tri-State says
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White House Axes Efficiency From State Clean Power Targets
Jul 31, 2015 | E&E - Greenwire
By Jean Chemnick
U.S. EPA's final Clean Power Plan will no longer base state targets, in part, on estimates about how much they could boost energy efficiency, an administration official said.
President Obama on Monday will release the final rule for existing-power-plant carbon emissions that does not include the draft version's "building block 4," the official said, reconfiguring the way states are assigned emissions reduction responsibilities.
The change will not limit states' ability to tap energy efficiency policies and programs in their state implementation plans for the rule.
"Because it is a highly cost-effective means of reducing emissions, we expect very significant investment in energy efficiency under the Clean Power Plan," the official said.
State targets will now be based on the rule's other three building blocks: heat-rate improvements at coal-fired power plants, increased use of combined-cycle natural gas generation to displace coal power and deployment of zero-carbon energy. These inputs set the targets but don't mandate how states comply with them.
Stakeholders took issue with all three of the other inputs in comments to EPA, but they are expected to figure in the final plan.
The June 2014 draft version of the plan, which included the efficiency building block, assumed that states across the country had the capacity to improve their demand-side efficiency by 1.5 percent per year after 2020. The draft assigned all states reduction responsibilities based on that assumption, though it gave some states more time than others to make the cuts.
But many stakeholders said there were legal as well as practical problems with basing requirements on utilities' assumed ability to dampen consumer demand for their product.
"Everybody loves efficiency, but figuring out how to do it in a regulatory context is tricky," said Jeff Holmstead, an industry attorney for Bracewell & Giuliani, who said the draft's efficiency input would have added to the rule's legal vulnerability. Assuming utilities can cut demand for power, he said, is like assuming oil refineries should support mass transit and bike lanes under a hypothetical future regulation for their sector -- a regulatory stretch that would have been unlikely to end well for EPA in court.
Energy efficiency advocates shrugged at news of the change.
"The important thing is that energy efficiency is allowed as a compliance option," said Steven Nadel, president of the American Council for an Energy-Efficient Economy. "We are fairly confident that most states will include some energy efficiency in their plans because efficiency will generally be the low-cost compliance option."
In fact, other reported changes to the final rule, including EPA's apparent choice to allow states to submit final plans as late as 2018 compared with the draft version's 2016 deadline, will boost efficiency as a compliance option by giving states more time to work demand-side reductions into their plans, he said.
Ken Colburn, principal for the Regulatory Assistance Project, which consults states on the rule, said eliminating the energy efficiency building block might cause some knee-jerk responses, but it won't be "terribly significant in reality."
"The four building blocks were never and should never have been considered as what states need to do," Colburn said. Energy efficiency will be a compliance option, even if it isn't a building block, he said.
Kateri Callahan, president of the Alliance to Save Energy, said jettisoning the demand-side building block potentially could improve the role efficiency plays in states' compliance strategies.
"Though we have to wait to evaluate the entire rule, it's difficult to believe that energy efficiency would not be an integral and explicit pathway to compliance," she said. "It's been proven as the easiest, fastest and cheapest way to reduce overall greenhouse gas emissions from power plants."
Efficiency advocates have long argued that EPA's 1.5-percent-per-year estimate was lower than the efficiency opportunities available to states.
"The building blocks were put in place to establish the baseline and to determine each state's individual contribution to meeting the overall 30 percent reduction. They were always being misinterpreted as either a floor or ceiling on how much energy efficiency could be used," Callahan said. "This potential change could have a silver lining in terms of making sure that states have the opportunity to use energy efficiency as much as they want, and hopefully to the greatest extent possible, as it's been proven to be the easiest, fastest and cheapest way to reduce overall greenhouse gas emissions from power plants."
But news that EPA will not base any part of its state targets on efficiency raises a host of other questions, especially as the agency has pledged that its final rule will deliver reductions at least on par with the draft rule's 30 percent below 2005 levels by 2030.
EPA may make up for the loss of building block 4's reductions by introducing changes to state targets that account for opportunities for co-firing of gas or biomass at coal-fired power plants, increased assumptions for how much new renewable energy can come online, or a new minimum target for natural gas plants -- even for states that currently have no gas plants.
EPA also has said the final rule will include a new incentive program for early action on efficiency and renewables, which it has said will deliver additional reductions.
Malcolm Woolf, senior vice president for policy and government affairs at Advanced Energy Economy, applauded the inclusion of that program.
"All along, we have urged EPA to provide a credit banking option in order to prevent disruption of the U.S. advanced energy market," he said. That would be particularly important, he said, given news that the agency has pushed back the beginning of its interim compliance period from 2020 to 2022 (EnergyWire, July 29).
"If states are able to receive credit for all emission reduction measures that take place between now and the start of the compliance period, without restriction or limitation, that will send a market signal that not only maintains but accelerates market growth for energy efficiency and renewables," he said.
The Clean Power Plan will be released together with rules for new and modified power plants. The draft New Source Performance Standard (NSPS) for power plants released in September 2013 included a 1,100-pound-per-megawatt-hour standard for new coal plants, a level that required the use of partial carbon capture and storage technology.
Industry advocates said over the weekend that they had heard the final NSPS would limit coal-fired power plant emissions to 1,500 or 1,600 pounds per MWh. The level might allow ultra-supercritical coal-fired power plants to be built without the use of CCS.
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EPA Likely To Include Multiple 'Interim' Compliance Periods In Final ESPS
Jul 31, 2015 | InsideEPA
By Doug Obey
In addition to delaying the start of the “interim” compliance period for its final greenhouse gas (GHG) rule for existing power plants, EPA appears likely to include several early compliance periods in the rule, an effort intended to provide a smoother glide path to final compliance in 2030 and greater certainty that GHG cuts will occur in the program's early years, sources say.
The two changes taken together appear aimed at addressing state and industry concerns that the proposed rule -- which began the interim compliance period in 2020 -- did not allow enough time to ramp up implementation of various reduction strategies -- including increased dispatch of natural gas power plants and greater reliance on renewables, as well as environmentalists' concerns that the proposal could allow postponement of emissions cuts until the out years of the program.
Sources say the approach could also help codify greater certainty that utility sector emissions cuts will occur consistent with the administration's 2025 GHG reduction commitment in international climate talks.
The idea is to have “steps instead of cliffs” for measuring compliance, one knowledgeable source says.
But the ultimate impact of the changes on regulated utilities is hard to gauge without factoring any revisions to GHG targets EPA's final rule may set for states.
An EPA spokeswoman would not comment because the final rule is still undergoing interagency review.
EPA in its proposed existing source performance standards (ESPS) laid out a plan for achieving a 30 percent cut in GHG emissions from the power sector by 2030, with an initial compliance period averaged over nine years from 2020-2029 and a final compliance calculation for 2030.
But many states and industry groups charged that the cuts EPA required for many states in the “interim” compliance period were front-loaded, creating a “cliff” rather than a smooth “glide path” to eventual compliance in 2030.
While many critics called for the interim targets to be eliminated, EPA Administrator Gina McCarthy said that an interim compliance period was essential given the rule's lengthy 15-year horizon. But she nevertheless promised design changes in how states demonstrate attainment of the interim targets rather than deadline extensions.
Consistent with McCarthy's commitment, officials have already indicated that EPA's final rule will likely extend the start of that compliance period to 2022, at least partially responding to state and industry concerns that the 2020 start date of the interim period did not provide enough lead time to plan for the rule or implement the necessary strategies, potentially undermining reliability.
They have also indicated the final ESPS will include incentives to encourage states to develop renewable energy and energy efficiency programs to help states reach the new 2022 deadlines, and will also give state until 2018 to submit final compliance plans, rather than 2017 for most states under the proposal.
'Iterative Steps'
Sources closely tracking the issue says EPA also plans shorter, multiple periods for measuring compliance to help establish a smoother path to reducing GHGs -- creating a series of “iterative steps” or milestones.
A second knowledgeable source says it appears EPA will include in its final ESPS several three-year averaging periods for emissions compliance, starting in 2022. “What you can expect here is a sort of a ramp up,” rather than the 10-year compliance window, the source says. The source describes that change, coupled with the new 2022 start date, as “an effort to take account of infrastructure constraints” and phase in various building block strategies under the ESPS, particularly ramped up natural gas use.
At the same time, the revised averaging period would appear to help address EPA and advocates' concern that the original lengthy averaging period for compliance could allow utilities to postpone achieving emissions cuts until late in the program.
The first source expects the rule to include an initial compliance period from 2022-2024, another compliance period starting in 2025 extending to 2026 or 2027, and a subsequent compliance period out to 2030.
The multiple compliance periods would also be broadly consistent with calls from environmentalists for shorter compliance periods to make EPA's power plant program more verifiable and enforceable. Natural Resources Defense Council (NRDC), for example in December comments on EPA's proposed ESPS suggested five-year targets -- including 2020, 2025 and 2030.
“This will help make sure there are continuous improvements,” NRDC's David Doniger noted shortly after the group submitted the comments.
The first source says the approach could also help codify greater certainty that utility sector emissions cuts will occur consistent with the administration's 2025 GHG reduction commitment in United Nations climate talks.
The United States announced a pledge in a deal with China in November 2014 -- since reaffirmed this March in preparation for the December climate change talks -- to achieve a 26 to 28 percent reduction below 2005 levels by 2025.
That pledge has led to questions about how far existing and planned GHG regulations will bring the U.S. toward that target. But a specific 2022-2024 interim compliance interval would codify more specifically cuts that other countries could expect from the U.S. power sector by 2025, the first source notes.
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House Democrats Call for Tighter Ozone Standards
Aug 3, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental Protection Agency Administrator Gina McCarthy should set national ozone standards at a level of 60 parts per billion, according to 64 House Democrats.
The representatives, in a July 30 letter to McCarthy, argued that the current 75 ppb standards aren't supported by the scientific record, which they said shows the current standards fail to protect low-income families, people with asthma, the elderly and other vulnerable populations. The letter was organized by Reps. Raul Grijalva (D-Ariz.) and Keith Ellison (D-Minn.), co-chairmen of the Congressional Progressive Caucus.
The EPA in November proposed (RIN 2060-AP38) to revise the current 75 ppb standards, set in 2008 under President George W. Bush, to somewhere in the range of 65 ppb to 70 ppb. The agency also took comments on potential standards of 60 ppb, which are supported by a wide variety of public health groups, including the American Lung Association, the American Heart Association and the American Academy of Pediatrics (229 DEN A-1, 11/28/14).
“A strong smog standard of 60 ppb would drive investments in clean energy and public transit infrastructure, save taxpayers billions of dollars annually in health care costs and save lives,” the representatives said.
The representatives said the current scientific record links exposure to ground-level ozone to premature death, more frequent asthma attacks and long-term damage to the lungs. The letter also cited research that shows certain communities, including communities of color and low-income communities, are disproportionately affected by air pollution.
The EPA is under a court-ordered deadline of Oct. 1 to issue a final decision on whether to revise or retain the ozone standards. The final ozone rule is expected to be submitted to the White House Office of Management and Budget soon.
The House Democrats' letter followed a July 28 letter signed by 136 House members, mostly Republicans, that urged McCarthy to retain the current Bush-era ozone standards due to economic concerns (146 DEN A-5, 7/30/15).
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EPA, California Fight Advocates' Bid For Retroactive Stricter PM2.5 Limits
Jul 31, 2015 | InsideEPA
By Stuart Parker
EPA and California officials are fighting environmentalists' suit aiming to force retroactive application of stricter fine particulate matter (PM2.5) emissions control requirements, saying in final briefs that taking the approach sought by advocates would be unlawful under the Clean Air Act and would also be unnecessary for some areas.
The suit, WildEarth Guardians, et al. v. EPA, pending in the U.S. Court of Appeals for the District of Columbia Circuit, is an important test for how the agency should implement its PM2.5 national ambient air quality standards (NAAQS), which the agency last updated in 2012. The fight centers on when EPA must require strict air law “subpart 4” PM2.5 controls rather than weaker “subpart 1” controls that it previously required.
Environmentalists want the court to vacate a June 2014 EPA rule imposing subpart 4 controls for PM2.5 NAAQS implementation prospectively but not retroactively. The agency issued the rule in response to a 2013 D.C. Circuit ruling in Natural Resources Defense Council (NRDC) v. EPA that said EPA wrongly implemented its PM2.5 standards under the less stringent subpart 1 requirements that apply generally to all six NAAQS. After the ruling, advocates urged EPA to apply the tougher measures in areas that had earlier been deemed in nonattainment with the PM2.5 NAAQS.
But the 2014 rule rejected those calls, and EPA said it was making the revised rule prospective because the court did not vacate a separate rule requiring states to submit plans solely under the subpart 1 requirements -- something that advocates argue will mean insufficiently stringent pollution controls for attaining the PM2.5 standards.
EPA set the 1997 PM2.5 NAAQS at 65 micrograms per cubic meter (ug/m3) over 24 hours, and then in 2006 revised and tightened the limit to 35 ug/m3 over 24 hours. EPA has, however, also issued tougher PM2.5 standards in 2012 which states are now moving to implement under subpart 4. The 2012 NAAQS rule tightened the annual limit for PM2.5 from 15 ug/m3 -- the level in both the 1997 and 2006 NAAQS rules -- to 12 ug/m3.
Environmentalists in briefing have argued that EPA's 2014 “classifications” rule for the 1997 and 2006 NAAQS did not apply the tougher subpart 4 provisions on the correct timetable dictated by the air law, which would see some areas in nonattainment with the PM2.5 NAAQS reclassified from “moderate” to “serious” nonattainment. The worsened status carries with it tougher pollution control requirements, but also more time to attain the NAAQS.
EPA and two California jurisdictions -- which could face stricter PM2.5 controls if advocates win -- counter that what environmentalists seek amounts to unlawful retroactive rulemaking by EPA, that would run counter to legal precedent and punish states for following EPA's implementation requirements previous to NRDC.
EPA's Defense
The agency and the two state districts reject environmentalists' argument that in fact sticking to the air law timetable would be lawful “prospective” action, and also environmentalists' assertion that the statutory deadlines apply automatically “by operation of law,” without any further need for EPA regulation.
In its July 13 final brief, the Department of Justice (DOJ) on behalf of EPA notes that the D.C. Circuit in NRDC “remanded but did not vacate EPA’s earlier implementation rules, thus leaving those rules in place pending EPA’s further action in response to the decision.”
DOJ says that environmentalists inaccurately suggest that “no EPA administrative action at all was ever needed in order for reclassification 'by operation of law' of 'moderate' nonattainment areas to 'serious' status.”
Environmentalists “ignore, however, that under the plain language of the Act, such reclassification occurs only “if the Administrator finds that any Moderate Area is not in attainment after the applicable attainment date,” DOJ says, adding that the administrator never made such a finding.
If the court vacates the classifications rule, DOJ warns, the effect would be to actually leave in place old regulations for implementing the PM2.5 NAAQS under subpart 1 rules, because the court in NRDC remanded, but never vacated, those rules.
Also, DOJ says that the two California regions concerned by the rule are already doing everything within their power to attain the NAAQS, and that the litigation will not speed their attainment.
Therefore the case is moot and the environmentalists lack standing to sue, DOJ argues, adding that, “granting the petition for review would not result in earlier attainment or implementation in any of the nonattainment areas for the 1997 or 2006 PM2.5 NAAQS.”
SIP Requirements
In a separate July 13 final brief, he South Coast Air Quality Management District, representing metropolitan Los Angeles, and the San Joaquin Valley Unified Air Pollution Control District -- which manages air quality in much of California's Central Valley -- agree with EPA's arguments.
They claim that the measures already in place for the two areas under California's state implementation plan (SIP) are already meeting the standards required by subpart 4. SIPs are air quality blueprints written by states outlining the emissions reduction measures they will adopt in order to cut pollution and attain the NAAQS.
“San Joaquin has requested reclassification to Serious [nonattainment] for both the 1997 and 2006 PM2.5 standards, and has already fulfilled all SIP requirements necessary for both standards. EPA has proposed approval of San Joaquin’s reclassification request and SIP for the 2006 PM2.5 standard,” the districts say in their joint brief.
The brief adds that, “Short of inventing a time machine to go back and rewrite history, there is nothing more that San Joaquin can do to align itself with Subpart 4 requirements or otherwise hasten attainment.”
The South Coast air district meanwhile “has attained the 1997 PM2.5 standard, and has not yet missed its Moderate area attainment deadline for the 2006 standard. If it does not attain the 2006 24-hour standard by the Moderate deadline of 2015, it will be reclassified as Serious. South Coast has already fulfilled all obligations to submit SIPs that are currently required for both standards,” according to the filing.
Therefore, “There is nothing for Petitioners to gain from this case. Since Petitioners’ claimed injury cannot be redressed by a favorable ruling,” they lack standing, the air districts say. Oral arguments in the case have not yet been scheduled.
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Ozone Advocacy Efforts Rise as Oct. 1 Deadline Nears
Aug 3, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Industry, public health and environmental groups are turning up the pressure on Obama administration officials and Capitol Hill in advance of a final decision from the Environmental Protection Agency on where to set national ozone standards.
The EPA is soon expected to send its final rule to the White House Office of Management and Budget for interagency review prior to a court-ordered Oct. 1 deadline for a final decision, and organizations are already mobilizing their resources in an attempt to sway the administration.
In addition to planned meetings with administration officials, supporters and opponents of stronger ozone standards have launched advertising campaigns around the Washington, D.C., area, sent letters to the EPA and the White House urging changes to the agency's ozone proposal and issued reports highlighting the potential effects of the EPA's rulemaking.
Environmental and public health organization representatives told Bloomberg BNA that they will promote the significant public health benefits of revising the ozone standards while highlighting a broad coalition of community, civil rights, faith and other groups that want the EPA to issue standards even stronger than those proposed by the agency.
“The public health messaging is the strongest message we have,” Stephanie Maddin, legislative counsel at Earthjustice, told Bloomberg BNA. “Breathing clean air is not a niche issue.”
Effort to Persuade Administration
Meanwhile, officials with the National Association of Manufacturers and the U.S. Chamber of Commerce hope that highlighting the economic impact of tighter ozone standards and widespread state opposition to the EPA's proposal will help persuade administration officials to soften the final ozone rule.
The EPA in November proposed (RIN 2060-AP38) to revise the current ozone standards of 75 parts per billion to somewhere in the range of 65 ppb to 70 ppb. The agency estimated the proposal could cost as much as $16.6 billion annually in 2025 while providing up to $38 billion in annual public health benefits (229 DEN A-1, 11/28/14).
Organizations on both sides of the ozone issue said they expect to expand advocacy efforts in advance of the agency's Oct. 1 court-ordered deadline to issue the final ozone rule, particularly once the rule is sent to the White House Office of Management and Budget for interagency review.
Industry Campaign Targets Administration, Congress
The National Association of Manufacturers, which has been one of the leading voices in opposition to tighter ozone standards, expects to do “just about anything” in its power to try and affect the final ozone rule, according to Ross Eisenberg, its vice president for energy and resources.
The National Association of Manufacturers July 28 launched a multi-million dollar television advertising campaign, starting with commercials airing in the Washington, D.C., market. The commercial highlights that several national parks wouldn't be able to attain the EPA's proposed ozone standards and argues that tighter standards aren't needed because ozone levels have fallen about 20 percent over the past decade.
Eisenberg said the advertising campaign, which he described as a “significant buy” for the association, was timed to coincide with the expected submission of the final ozone rule to OMB and with the annual August recess for Congress. The association wanted to make sure that the ozone issue was “front and center” in the minds of lawmakers as they went back to their districts for the recess, he said.
“We're turning up the volume,” Eisenberg said. “We're not going to turn it down until we convince the administration to look at the ozone regulation in a more positive way.”
NAM followed up the launch of the advertising campaign with a July 29 letter to President Barack Obama, signed by 260 associations and business groups, urging the president to retain the current 75 ppb standards.
Focus on Health Message
Public health and environmental groups plan to counter industry advocacy efforts by amplifying the health concerns with the current 75 ppb standards, Paul Billings, senior vice president for advocacy and education at the American Lung Association, said.
“They [industry advocates] certainly have a megaphone,” Billings told Bloomberg BNA. “But we certainly can increase our voice.”
Billings noted that Earthjustice has launched an advertising campaign illustrating that one out of every six black children suffer from asthma, a condition that science shows is exacerbated by exposure to ground-level ozone. In addition to advertising, groups supporting tighter ozone standards have met with administration officials, engaged in social media campaigns to raise awareness and directly responded to industry arguments against revising the standards.
For example, the National Parks Conservation Association responded to the National Association of Manufacturers' advertising campaign with a letter noting that national parks struggle with significant air pollution problems and aren't as pristine as the commercial makes them out to be.
Terry McGuire, senior Washington representative with the Sierra Club, and Maddin both described plans to “put a face” to the ozone issue by highlighting populations that are adversely affected by ozone exposure. The plan is to highlight vulnerable, sensitive populations that are counting on the White House to protect them from air pollution, according to McGuire.
“There's no room for debate that you save more lives at the lower end of the range,” McGuire said. “The health data speaks for itself.”
Diverse Coalition Assembled
McGuire said there is a “really impressive, diverse, national coalition” that is advocating in favor of ozone standards of 60 ppb.
While the EPA didn't propose setting the standards that stringent, it has solicited comment on setting a standard as low as 60 ppb. In addition to environmental and public health groups, the National Association for the Advancement of Colored People, the Labor Council for Latin American Advancement and several faith-based organizations have joined in the effort for tighter ozone standards.
Those organizations have sent various letters to administration officials advocating for stronger standards and will continue to weigh in as the Oct. 1 deadline for EPA action nears, McGuire said.
The NAACP and other organizations that support stronger ozone standards had a July 24 meeting with Janet McCabe, acting EPA assistant administrator for air and radiation, on ozone. Maddin said the meeting was “more of a back-and-forth” discussion than a presentation.
Maddin and Billings both predicted that there will be several meetings held with White House officials once the ozone rule is submitted to OMB.
Many Meetings Expected
Supporters of stronger ozone standards will have “as many meetings as possible” across constituencies , Maddin predicted. She noted that because it is possible to “call in” to OMB meetings, regional and local “on-the-ground” organizations will be able to participate without traveling to the Washington, D.C., area.
Billings said that while the American Lung Association doesn't yet have concrete plans, it will try to get before OMB to discuss the robust scientific record supporting a tighter standard and remind the administration of what the Clean Air Act requires the EPA to do.
“We'll certainly be in there to make our case,” Billings said.
Eisenberg of the National Association of Manufacturers predicted that industry organizations will get their message in front of “as many folks in the administration” as possible over the next two months. Industries are working together “as a team” on the ozone issue, doing different things with their resources to get their message across, he said.
Chamber Highlights Transportation
One of those efforts is a series of reports from the U.S. Chamber of Commerce's Institute for 21st Century Energy highlighting transportation projects that could be delayed or stopped under tighter ozone standards.
The reports highlight projects that could be affected if areas are unable to demonstrate transportation conformity under tighter ozone standards, which could result in the EPA withholding federal highway funding in those areas.
The first report, highlighting the Washington, D.C. area, was released July 22.
A second report detailing transportation projects in Las Vegas will be released in August, with an additional three reports highlighting additional metropolitan areas scheduled for release in September, according to Matt Letourneau, senior director of communications and media at the Institute for 21st Century Energy.
Letourneau told Bloomberg BNA that while the ozone issue has been “flying under the radar” nationally, partly due to a focus on the imminent release of President Obama's Clean Power Plan regulation, many municipalities are more focused on ozone because of the potential effects on transportation projects. The goal of the report is to elevate those concerns and raise awareness among elected officials and other people who can have an impact on the administration's final decision, he said.
Administration Had Shelved Reconsideration
Letourneau noted that the Obama administration shelved a reconsideration of the 2008 ozone standards in 2011 after receiving “pushback” from allies. The EPA later revealed that it was prepared to issue ozone standards of 70 ppb until the president ordered the agency to stop the reconsideration process.
“The president probably has less to lose this time,” Letourneau said. “But there is always an election coming.”
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29 State Attorneys General Seek Delay in Water Rule
Aug 3, 2015 | BNA Daily Environment Report
By Pat Ware
Twenty-nine state attorneys general asked federal regulators to postpone implementing a rule to clarify the jurisdiction of the Clean Water Act, saying it would negatively affect the state's agricultural interests and infringe on landowners' private property rights.
Specifically, James D. “Buddy” Caldwell, Louisiana's attorney general, sent a letter July 28 asking that implementation be pushed back at least nine months pending the outcome of dozens of lawsuits challenging the regulation. The letter to the Environmental Protection Agency and the Department of the Army, the agencies that promulgated the rule, was also signed by 28 other state attorneys general.
“There is no good reason for our farmers, business owners and state agencies to face uncertainty and the expense involved in complying with this burdensome federal regulation while this matter is pending in court,” Caldwell said in a July 30 statement accompanying the letter.
“Louisiana already effectively manages programs under the Clean Water Act, and we expect the Court to block this illegal power grab by the EPA,” Caldwell said.
Published June 29, the rule (RIN 2014-AF30) seeks to clarify which waters and wetlands are covered by the Clean Water Act.
The rule is set to go into effect Aug. 28 but faces a court challenge from at least 30 states and nearly 20 business, agricultural and industry groups.
Most recently, the Utility Water Act Group joined the challenge, saying the rule would cause its members economic harm (Util. Water Act Grp. v. EPA, 5th Cir., No. 15-60509, 7/24/15; 144 DEN A-4, 7/28/15).
Caldwell said the rule could subject farm ponds, drainage ditches and “even backyards” to federal regulation.
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House GOP's Release Of Critical CWA Memos Might Boost Suits Over Rule
Jul 31, 2015 | InsideEPA
By David LaRoss
House Republicans have released several Army Corps of Engineers memos circulated during the development of the Clean Water Act (CWA) jurisdiction rule jointly developed with EPA where the Corps faults the legal and scientific basis for the then-pending rule, potentially boosting pending lawsuits that claim the rule is unlawful.
The Corps memos, dated between April 24 and May 15, were part of the internal dialogue between EPA and the Corps in the run-up to signing the final CWA rule on May 27. They include substantive, often strongly worded critiques of the rule and EPA's economic and scientific analysis supporting it, all of which could boost critics' legal claims that the rule is unfounded and arbitrary, according to an attorney tracking litigation over the rule.
“The courts in these cases are supposed to look at reasoned decision-making: Did the agency connect the dots? So the more litigants are going to be able to show that there was significant disagreement that didn't get resolved, and that some of the assumptions on which the rule was based aren't actually supported by the record -- that's red meat for a judicial vacatur,” the source says of the memos showing disagreement between the agencies.
EPA and the Corps released the rule publicly in May then published it in the Federal Register in June, with an effective date of Aug. 28. Several lawsuits over the policy have already been filed in federal district courts, while appellate cases over the rule have been consolidated in the U.S. Court of Appeals for the 6th Circuit.
Earlier this week, EPA and the Corps issued a memo in which it pledged to quickly release a suite of tools to ease implementation of the rule including a question-and-answer document and database of jurisdictional findings to resolve uncertainty, though several states are urging the agency to delay the rule's implementation by many months.
The agencies said in the final rule that it is considered issued for purposes of judicial review at 1 p.m. Eastern time on July 13. Critics of the regulation argue that it expands the CWA's reach far beyond what Congress intended, and the attorney suggests that the released memos could bolster opponents of the rule.
For instance, an April 24 letter signed by Major General John Peabody, Deputy Commanding General for Civil and Emergency Operations, says, “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.”
In a separate April 24 memo to Peabody, Lance Wood, the Corps' assistant chief counsel for environmental law and regulatory programs, says the then-draft version of the final rule “contains several serious flaws. If the rule is promulgated as final without correcting those flaws, it will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement.”
Those comments appear to give new support to claims by the array of state and industry plaintiffs that are already asking federal district and appellate courts to invalidate the CWA rule as unlawful or unconstitutional.
Corps' Criticisms
While most of the memos' criticism tends to align with industry and state arguments that the rule is poorly justified, some of it could also back environmentalists' arguments to overturn a provision restricting protections for wetlands, ponds and small waterbodies to areas within 4,000 feet of a stream or river.
In their lawsuits, advocates are claiming that restriction means the rule fails to protect many endangered species such as salmon and sturgeon.
“[T]he 4,000-foot limit arbitrarily cuts off which waters can be determined [to be] 'similarly situated' . . . The TSD recognizes that floodplains of large river systems are much greater than 4,000 feet from” the river's high water mark, Corps Regulatory Program Chief Jennifer Moyer wrote in a May 15 memo.
Corps officials provided the memos to the Senate Environment & Public Works Committee (EPW) and the House Committee on Oversight and Government Reform earlier this month.
But an accompanying letter from Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy asked legislators not to publicly distribute them, noting that the Freedom of Information Act (FOIA) 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 warned.
Critics of the CWA rule have already cited quotes from the memos to argue that the Corps had major concerns about the rule and that EPA failed to fully consult the Corps or address the concerns -- which, they say, undermines the legal basis for the rule.
However, while EPW Chairman Sen. James Inhofe (R-OK) only published excerpts from the memos, the House panel posted them in full as part of the record from a June 29 hearing on the agency's treatment of sexual harassment claims among its staff. The files posted by the committee include stamps on each page reading “For Committee Use Only -- Litigation Sensitive”.
EPW staff did not response to a request for comment on the memos, and the House committee did not release a statement on its publication of the documents.
Pending Litigation
The attorney tracking the case says the release of the memos could have a major impact on the challenges because not only do they seem to support the challengers' claims about flaws in the rule, but they were also unlikely to be published otherwise, either in response to FOIA requests or as part of the litigation process.
That is because in a rule challenge, the agencies are responsible for compiling and submitting to the court an “administrative record” including all the documents they considered in the rulemaking process, and courts generally defer to the government on which documents should be considered part of the record.
“Normally the administrative record wouldn't include these interagency memos, this sort of policy advice. Now, even if EPA and the Corps don't include these letters themselves, you can bet the challengers will file them. . . . And the more the record is messy and has contradictions, the more it reveals,” the attorney says.
In her letter accompanying the submission to Congress, Darcy sought to downplay the criticism in the letters by arguing that EPA and the Army had addressed many of the Corps' critiques before signing the final rule.
"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.
And she specifically highlights Moyer's letter, saying "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.”
But the attorney tracking the legal challenges says that regardless of Darcy's comments, it will likely be up to the courts to weigh whether regulators properly considered the Corps' concerns in the final rule. “What we don't know from where we're standing now is how accurate [Darcy's letter] is -- whether they really did address these issues or if they're just papering that over now.”
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