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Chemical Management News

Canada Consults on Phthalates' Cumulative Risk Assessment
Aug 3, 2015 | Chemical Watch

The Canadian government is consulting on an approach for the assessment of cumulative risk from combined exposure to 14 phthalates.

Chemical Security News

GAO Faults DHS' Security Program As Advocates Press EPA For IST Rule
Aug 3, 2015 | InsideEPA
By Dave Reynolds

The Government Accountability Office (GAO) is criticizing a Department of Homeland Security (DHS) facility security program, faulting the agency's assessment of and enforcement against facilities that pose risks -- shortcomings that advocates say buttress their long-standing calls for EPA to use Clean Air Act authority to impose strict process safety requirements.

Energy and Environment News

States Should Shun the EPA’s New Power Mandate
Aug 2, 2015 | The Wall Street Journal
By Hal Quinn and Peter Glaser

On Monday President Obama is announcing the final version of his Clean Power Plan, the carbon-emission rules for power plants to secure his climate-change legacy.
Obama’s New Climate-Change Regulations to Alter, Challenge Industry
Aug 2, 2015 | The Wall Street Journal
By Amy Harder, Colleen McCain Nelson, and Rebecca Smith

A new rule mandating the first-ever federal limits on power-plant carbon emissions aims to change the way Americans make and consume electricity, accelerating a shift already under way toward cleaner fuels, renewable energy and consumer-generated power.
Clean-Energy Debate Pitted Ambition Against Legal Worries
Aug 2, 2015 | The Washington Post
By Joby Warrick

Four weeks before the official rollout, the news for President Obama’s signature regulation on climate change suddenly went from bad to abysmal.
Why Obama’s Epic Climate Plan Isn’t Such a Big Deal
Aug 3, 2015 | PoliticoPro
By Michael Grunwald

The carbon regulations that President Obama is unveiling today sound like they’ll be a bit stronger than the toothless draft rules he unveiled last year.
How Obama's New Emissions Rules Will Likely Shape the White House Race
Aug 3, 2015 | LA Times
By David Lauter

With Monday's release of landmark rules to combat global warming, President Obama is putting into place what probably will be the last piece of his ambitious second-term agenda – one that highlights deep divisions in the country and helps shape the race to succeed him.
GOP Presidential Hopefuls Blast Obama on Climate
Aug 3, 2015 | The Hill - E2 Wire
By Timothy Cama

Top Republican presidential candidates blasted the Obama administration’s landmark climate rule for power plants.
Bush: Obama Carbon Rules 'Unconstitutional'
Aug 3, 2015 | The Hill - Ballot Box
By Jesse Byrnes

Republican presidential candidate Jeb Bush is panning President Obama's newly unveiled climate change rules for power plants, ascribing them to continued executive branch overreach.
GOP Voters Reject Climate Plan Despite Backing Carbon Limits
Aug 3, 2015 | E&E - Greenwire
By Jennifer Yachnin

Republican voters in two early primary states are less than enthusiastic about the Obama administration's Clean Power Plan, despite endorsing limits on carbon pollution, according to a poll released today.
Lawyers Brace for 'Tsunami' of Litigation to Follow Climate Rule's Release
Aug 3, 2015 | E&E - Energywire
By Ellen M. Gilmer

Attorneys for states, environmental groups and the power sector are gearing up for a cascade of litigation as the Obama administration rolls out its biggest effort yet to curb greenhouse gas emissions.
Top US Coal Company Vows Five Lawsuits Against Climate Rules
Aug 3, 2015 | The Hill - E2 Wire
By Timothy Cama

The company, which is the country’s largest privately held coal mining company, is filing a lawsuit against each of the three individual regulations the the Environmental Protection Agency (EPA) will formally unveil Monday.
Clean Power and the Divided States of America
Aug 3, 2015 | E&E - Energywire
By Peter Behr

U.S. EPA's Clean Power Plan is opening new fault lines among sparring states across the country and the federal government, triggered by sharp political differences over climate policy.
Mining Group Asks EPA to Stay its Climate Rule
Aug 3, 2015 | The Hill
By Lydia Wheeler

The National Mining Association (NMA) is asking the Obama administration to stay its climate change rule for power plants pending judicial review.
Coal Producer Murray Will Sue Four More Times Over Carbon Rules
Aug 3, 2015 | PoliticoPro - Whiteboard
By Alex Guillen

Coal producer Murray Energy plans to file four new lawsuits against EPA's final carbon rules for power plants, the company said today.
Clean Power Plan Changes Appease Many Concerns, But Coal Lobby Promises a Fight
Aug 3, 2015 | E&E - Energywire
By Emily Holden, Rod Kuckro and Peter Behr

Far-reaching rules that form the backbone of the U.S. commitment to cutting global greenhouse gas emissions do much to "help ease the pain" to states and the energy industry, as one state regulator described.
Industry Giant Files for Bankruptcy Ahead of Rule's Release
Aug 3, 2015 | E&E - Greenwire
By Manuel Quiñones

The coal industry is arguably the hardest hit in the Obama administration's new rules to cut down on carbon emissions from new and existing power plants.
EPA Outlines Further Details On Final GHG Rule For Existing Power Plants
Aug 3, 2015 | InsideEPA

EPA has released a series of fact sheets outlining further details about its final greenhouse gas (GHG) standards for existing power plants, including estimates that show the rule could have up to $34 billion in health benefits and specifics on two approaches for how states can craft their GHG reduction plans for complying with the regulation.
Rose Garden Event to Unveil Final Carbon Standards Reflective of Industry, State Feedback
Aug 3, 2015 | E&E - Energywire
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.
The Long, Hazy and Winding Political Path that Brought the Obama Admin to the Clean Power Plan
Aug 3, 2015 | E&E - Climatewire
By Evan Lehmann and Christa Marshall

Climate change was riding an updraft in 2008. More Americans than ever before -- or since -- saw it as a troubling issue. And President-elect Obama had just pledged in his campaign to do something about it. So did his Republican opponent.
Obama Delivers on Promise of Action on Climate Change
Aug 3, 2015 | E&E - Greenwire
By Jean Chemnick

President Obama vowed in his second inauguration address that he would build a legacy on global warming.
Obama Reaches for Green Legacy, But Will History Books Agree?
Aug 3, 2015 | National Journal
By Rebecca Nelson and Ben Geman

Riding in his fortress of a Cadillac that gets just 3.7 miles to the gallon, President Obama knew it was time to go big on climate change.
EPA Updates Ozone Data in Preparation for Rulemaking
Aug 3, 2015 | E&E - Greenwire
By Amanda Peterka

U.S. EPA is releasing updated data on ozone pollution ahead of a formal rulemaking later this year guiding states on how to address interstate emissions under the 2008 ozone standard.
Cap and Trade and Polarization
Aug 3, 2015 | The New York Times
By Paul Krugman

One of the most obvious facts about the U.S. political scene is also a fact most pundits refuse to acknowledge: the extreme polarization we now experience, the complete disappearance of any kind of political center, is not a two-sided phenomenon.
Texas, Oil Sector Push Back On EPA Crafting New NO2 Risk Assessment
Aug 3, 2015 | InsideEPA
By Stuart Parker

Texas and the oil sector are pushing back on the possibility that EPA might craft a new formal risk and exposure assessment (REA) of nitrogen dioxide (NO2) to inform its upcoming review of the ambient air standard for the pollutant, with the oil sector outright opposing a new REA and Texas calling for more data before EPA crafts one.

Transportation News - There are no clips to report at this time

Industry and Association News - There are no clips to report at this time.

Chemical Management News

Canada Consults on Phthalates' Cumulative Risk Assessment

Aug 3, 2015 | Chemical Watch

The Canadian government is consulting on an approach for the assessment of cumulative risk from combined exposure to 14 phthalates. It has also made available four state-of-the-science reports on the substances.
The proposed approach document contains:key considerations for risk assessments;a summary of current current international initiatives for the cumulative risk assessment of phthalates; anda summary of the “approaches considered to be most relevant for the assessment of cumulative risk from combined exposures to certain phthalates under the Chemicals Management Plan (CMP).”
Certain phthalates were among those identified as priorities for action for the second phase of the CMP. Their selection was based on a categorisation process completed in 2006, and on information received as part of the first phase of the CMP.
This substance grouping included 14 phthalate substances, selected for a variety of reasons:being identified as potentially associated with reproductive and developmental effects;being associated with potential ecological effects of concern; andbeing identified as priorities internationally.
There is the possibility that some phthalates may have common health effects of concern. Therefore Health Canada has addressed the potential for cumulative risk from combined exposure to these substances by expanding the scope of the grouping from by adding an extra 14 substances.
These include three previously assessed under the Canadian Environmental Protection Act (Cepa):dibutyl phthalate (DBP);butyl benzyl phthalate (BBP); anddiethyl hexyl phthalates (DEHP).
The deadline for comments is 30 September. Health Canada expects to release draft screening assessments for the substances in the summer of 2016. This will include an assessment of cumulative risks. After considering public comments it hopes to publish final screening assessments and cumulative risks in 2017.

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Chemical Security News

GAO Faults DHS' Security Program As Advocates Press EPA For IST Rule

Aug 3, 2015 | InsideEPA

By Dave Reynolds

The Government Accountability Office (GAO) is criticizing a Department of Homeland Security (DHS) facility security program, faulting the agency's assessment of and enforcement against facilities that pose risks -- shortcomings that advocates say buttress their long-standing calls for EPA to use Clean Air Act authority to impose strict process safety requirements.
EPA and DHS are leading a federal effort to implement President Obama's August 2013 Executive Order 13650 on improving the safety and security of industrial facilities, and each agency is also weighing changes to their facility safety or security regulations as part of the process.
In a July 22 report, GAO faults DHS' Chemical Facilities Anti-Terrorism Standards (CFATS) program, saying the agency has relied on unverified data that facilities have submitted on the potential consequences of an attack in its risk assessment process that determines whether a facility is high-risk and therefore subject to additional regulation.
In the report, "DHS Action Needed to Verify Some Chemical Facility Information and Manage Compliance Process," GAO also says DHS lacks policies and procedures for responding to non-compliant facilities, and has inappropriately counted security measures as a sign of the program's success even when a facility has not actually implemented the required changes.
The new criticism from GAO comes as DHS is finishing an overhaul of the CFATS process for assigning tiered risk levels to industrial plants after an April 2013 GAO report called the process flawed because it failed to consider a facility's vulnerability and the economic consequences of an attack.
In a July 8 letter to GAO, DHS officials agree with the findings of the new report, and say they will verify submitted data on the consequences of an attack, and develop policies and procedures for consistently ensuring that non-compliant facilities implement changes required under the facility's site security plan.
But advocates, who have long criticized CFATS as lax, argue the GAO report is further evidence that new EPA rules are needed to reduce the risk or consequences of an accident or attack on the nation's industrial facilities.
"It's very clear that industry, left to voluntary efforts are not necessarily going to undertake the kinds of process safety approaches that are absolutely necessary to ensure their facilities are as safe as possible," a source with the Center for Effective Government (CEG) says, noting GAO's findings that DHS lacks documented policies for addressing noncompliance.
Risk Management
CEG and more than two dozen environmental, labor and good governance groups, including Greenpeace and the Environmental Justice Health Alliance, recently requested a meeting with EPA Administrator Gina McCarthy in advance of the agency's plan to propose updates to its Risk Management Plan (RMP) facility safety program in September.
The RMP update comes as EPA's Office of Inspector General (IG) July 15 announced plans for a follow-up review of actions EPA has taken to address a critical March 2013 IG report that found the agency's training and management controls for the RMP program are inadequate to ensure inspections of facilities' risk management plans are effective.
In a July 10 letter, advocates reiterate calls from a 2012 petition for EPA to use authority under section 112(r) of the Clean Air Act to require facilities to use inherently safer technologies, such as alternative chemicals or safer processes, which they say reduce the risk or consequences of an accident or attack.
"We were also extremely encouraged to see EPA consider new Risk Management Program regulations to require the 'implementation of safer technologies and alternatives where feasible," advocates say in the letter requesting a meeting.
EPA, DHS, and the Occupational Safety and Health Administration are leading a working group charged with implementing President Obama's Aug. 1, 2013, executive order on strengthening the safety and security of industrial plants, by improving communication and coordination, and weighing new policies, rules and standards.
As part of the effort, EPA and DHS are weighing improvements to their RMP and CFATS programs. EPA took comment through October on a request for information (RFI) on strengthening RMP, and is scheduled to issue a notice of proposed rulemaking in September, according to the White House Office of Management & Budget website.
RMP currently requires facilities to report holdings of threshold levels of certain chemicals and to reduce the risk of their accidental release. In the RFI, EPA suggests potentially sweeping changes to the RMP rule, ranging from covering new chemicals and requiring new process safety analysis or review of past near-accidents, to scrapping the program in favor of a new approach.
Similarly, DHS took comment last fall on an Aug. 18 advance notice of proposed rulemaking on improving CFATS, and the agency is planning to issue a notice of a proposed rule sometime next year, a DHS official says.
During a July 22 Chemical Sector Security Summit in Alexandria, VA, DHS officials said the agency is already nearing completion of an overhaul of its process for assigning levels of risk to industrial facilities.
The new methodology comes after GAO, in the critical April 2013 report, said DHS used an incomplete risk assessment process that failed to consider vulnerability or economic consequences of an attack in ascribing risk levels to 3,500 high-risk chemical facilities.
At the conference, DHS' David Wulf told Inside EPA that the new CFATS tiering methodology has undergone external review and seeks to address GAO's 2013 criticism. DHS officials hope to complete the new methodology and begin using it in the fall.
In the July 22 report, GAO adds new criticism to DHS implementation of the CFATS program. And in a July 8 letter responding to a draft version of the critical report, the agency agrees to address the new concerns by the end of the year.
In the letter to GAO's Chris Currie, Jim Crumpacker, director of DHS' Departmental GAO-OIG Liaison Office, says DHS will develop policies and procedures for addressing non-compliant facilities, including ensuring that safety measures required under a facility's site security plan are implemented.
Additionally, Crumpacker says DHS will verify data that facilities have submitted on the distance around a facility that could be affected by an attack, and also change that process so facilities no longer calculate that information themselves. DHS also will develop CFATS performance measures that count facility security improvements only after their implementation has been verified.
GAO Report
The GAO report finds that DHS' process for assigning risk tiers fails to verify the data facilities submit showing the distance a chemical release could endanger following an attack, a flaw that could cause CFATS to fail to classify a facility as high-risk. According to GAO estimates, more than 2,700 facilities, approaching half of an estimated 6,400 facilities that pose a risk of a toxic release, misreported the distance that would be at risk from an attack on a facility.
GAO also faulted DHS' enforcement process, finding the agency lacks documented policies and procedures for ensuring non-compliant facilities implement improvements required under a DHS-approved facility site security plan (SSP).
GAO found that 34 of 69 facilities that DHS had inspected as of February had not fully complied with their plan, yet rather than taking enforcement action, DHS officials work with facilities to address problems on a case-by-case basis.
While DHS officials told GAO that working with non-compliant facilities is more productive for ensuring compliance, GAO says the lack of documented procedures for tracking facility improvements following an inspection prevents DHS from addressing non-compliant facilities in a consistent manner, according to the report.
GAO also says current CFATS performance measures count security measures that were already in place when a facility began working on a plan to comply with the DHS regulatory program, as well as planned improvements, even before the agency verifies those changes have been made.
GAO says DHS has significantly improved its pace in reviewing a backlog of security plans submitted under CFATS. Although GAO estimated in 2013 that it would take the agency seven to nine years to clear the backlog of SSPs, the new report says DHS could complete that task in less than a year.
While agreeing with GAO's recommendations, DHS, in the July letter, pushes back against GAO's characterization of some findings. While acknowledging facilities have submitted erroneous information, DHS says that data supported only a preliminary review and that additional information would be submitted before DHS assigned a final tier.
Any "tangible impact from this erroneous data is likely to be extremely minimal," DHS says, noting the problem applies only to a small fraction of the 37,000 facilities that submitted information under CFATS. And DHS says it is "highly unlikely" the misinformation would significantly impact whether a facility is tiered as high risk.
As for GAO's compliance concerns, DHS says it is currently focusing more on reviewing SSPs than conducting compliance inspections and has conducted relatively few inspections so far. Those early inspections will inform best practices that will assist inspectors when the agency begins conducting a greater number of inspections in the future.

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Energy and Environment News

States Should Shun the EPA’s New Power Mandate

Aug 2, 2015 | The Wall Street Journal

By Hal Quinn and Peter Glaser

On Monday President Obama is announcing the final version of his Clean Power Plan, the carbon-emission rules for power plants to secure his climate-change legacy. The plan is designed to hobble electricity generators much as the Environmental Protection Agency’s 2012 rule to reduce mercury and other emissions has harmed the coal industry.
Fortunately for consumers, on June 29 the Supreme Court slapped down the agency’s 2012 rule. In Michigan v. EPA, the court said the agency failed its legal obligation to compare the cost of its mercury standards with the benefits.
Reckless disregard for costs has also guided the agency’s Clean Power Plan. The White House promises Monday’s rule will offer more flexibility to meet emissions targets than an earlier draft, but the targets may be even more difficult to meet. That will force rate payers into steeper cost increases, and concessions the EPA makes to some states and industries will come at the expense of others.
If the EPA succeeds, Americans will be paying for decades. NERA Economic Consulting estimates that the Clean Power Plan will cost $366 billion and bring double-digit electricity-rate increases to 43 states. Regulators including the North American Electric Reliability Corporation warn that the plan could weaken the reliability of the national electric grid by forcing many power plants to close well before new ones can be built. Yet even the administration admits that the EPA plan will have only a trivial impact on the climate.
The Clean Power Plan gives each state an emissions budget and an ultimatum: Give us a plan to cut your carbon emissions using our assumptions about energy-efficiency improvements, green-energy construction, etc.—or we will impose a federal plan on your state. Never mind that most states have objected to the EPA plan.
Governors thus face a dilemma: Accept the EPA’s invitation by developing a state plan and open their states to lawsuits for any perceived breach, or decline to cooperate and take their chances with a federal plan.
The EPA says the Michigan decision has no bearing on the legality of the Clean Power Plan because the agency considered costs as it developed the rule. In all likelihood, the agency will again try to obscure the real costs of its regulations—by double-counting benefits derived from rules already on the books—as it did in the mercury rule.
But the Supreme Court’s decision in Michigan casts a longer shadow over EPA ambitions than the admonition to consider costs. The decision also affirmed the principle that an agency is not entitled to rewrite the law by selecting the legislative words it likes while discarding the ones it does not. The law directs the EPA to determine whether it is both “appropriate and necessary” to impose more regulatory burdens on power plants—but the agency heeded only the word “necessary,” altogether ignoring whether more regulations were “appropriate” in view of the massive potential costs. This, said the court, was an unreasonable interpretation.
This is where the agency’s hubris may be its undoing. In the Clean Power Plan, the EPA ignores words in the Clean Air Act that limit its standard-setting authority to individual sources of emissions. Instead, the agency targets the entire electricity industry as an emissions source. No words in the Clean Air Act plausibly—never mind reasonably—invite the EPA to coerce the wholesale transformation of state electric grids with arbitrary reduction targets.
The Clean Power Plan depends on states’ bowing to the EPA by drawing up plans that make their power supplies less diverse and more expensive. Without state complicity, the EPA’s ambitious carbon-reduction target is not achievable within the bounds of its legal authority and technical competence.
The governors of Oklahoma, Mississippi, Wisconsin, Indiana, Texas and Louisiana have already done the calculations and decided that the cost of collaborating with the EPA will be much higher than declining to do so. Especially with the legal prospects of the Clean Power Plan growing dimmer, there’s no reason for other governors to voluntarily turn the lights off on their economies.
Mr. Quinn is president and chief executive of the National Mining Association. Mr. Glaser, a partner at Troutman Sanders LLP, represented the association before the Supreme Court in Michigan v. EPA.

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Obama’s New Climate-Change Regulations to Alter, Challenge Industry

Aug 2, 2015 | The Wall Street Journal

By Amy Harder, Colleen McCain Nelson, and Rebecca Smith

A new rule mandating the first-ever federal limits on power-plant carbon emissions aims to change the way Americans make and consume electricity, accelerating a shift already under way toward cleaner fuels, renewable energy and consumer-generated power.
The regulations, which will be unveiled by President Barack Obama at a White House event Monday, are part of a broader push by the administration to position the U.S. as a leader in tackling climate change. The Environmental Protection Agency regulations are central to the administration’s submission to an international climate conference set for December in Paris.
White House officials say Mr. Obama views addressing climate change as part of his legacy. He announced an aggressive climate deal with China in November and has put the issue high on the agenda in meetings with world leaders in recent months. The president also will discuss climate change with Pope Francis during his visit to the U.S. next month, following the pope’s release of an encyclical on the issue in June.
“This rule enhances in important ways our ability to achieve the international commitments that we have made,” Brian Deese, a senior adviser to Mr. Obama, told reporters Sunday.
But divisions at home cast some doubt on the administration’s ability to fully implement the regulations, which were released in draft form a year ago.
Industry officials say they are worried about the plan’s cost and timetable. Republicans in Congress and states hardest hit by the plan say they will fight it. More than a dozen states and the coal industry have vowed to sue the EPA, and several states have threatened to refuse to comply with the rule.
The rule would require a 32% cut in power-plant carbon dioxide emissions by 2030 from 2005 levels, an increase from the 30% target proposed last year. EPA Administrator Gina McCarthy said Sunday the rule would result in an estimated annual cost of $8.4 billion by 2030 and have total benefits, including public-health benefits, of $34 billion to $54 billion per year by then.ENLARGE
The regulations require states to draft their own plans to reduce power-plant emissions to reach an overall carbon reduction target nationwide. States would have to put in place compliance plans by 2018 and meet their first targets for reductions by 2022. As with the draft rule released last year, the EPA would impose a federal plan on states that don’t comply, according to the administration.
The final rule calls for the nation to get 28% of its electricity from renewable resources by 2030, versus roughly 13% last year. Industry experts say cutting carbon emissions 32% by 2030 will require billions of dollars in investments for new transmission lines that accommodate more solar and wind power and new pipelines to feed natural-gas-fired power plants, as coal becomes less important as a fuel.
U.S. electric utilities have already taken steps to shift to less carbon-intensive fuels, and they worry about the degree to which their whole system will need to be upgraded to accommodate more renewable energy, much of it generated by customers with solar panels or other equipment.
The industry, experts said, expects to spend more than $100 billion next year on capital projects, and will adjust its spending programs to reflect the new rules even as court challenges proceed.
“Utilities already are moving in that direction by retiring coal plants and adding renewables,” said Nick Akins, chief executive of Ohio-basedAmerican 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 shutting power plants that aren’t yet paid off, Mr. Akins said, meaning consumers will have to pay for assets that aren’t providing benefits. Other executives said consumers may be able to trim their electricity use and keep their bills flat—or even reduce them.
Administration officials said Sunday they had taken industry concerns into account in the year since the draft was released. Most significantly, the final rule pushes back the first year that states must begin complying, to 2022 from 2020.
In another nod to industry concerns, the final rule would help encourage nuclear power generation, which doesn’t emit any carbon and accounts for about 20% of the U.S.’s electricity.RELATEDNew Expectations for Electricity ConsumersFive Things About Obama’s New Climate Rules
Nuclear reactors under construction in Tennessee, South Carolina and Georgia will get credit toward compliance with the rule, a change from the proposal, according to the administration. Nuclear plants that boost their output also will get more credit.
One industry concern is the final rule seeks to prevent a wholesale shift to natural gas. Over the past few years, utilities have been burning more gas, which produces 50% less carbon emissions than coal but still more than zero-emitting sources like wind and nuclear power. That shift has been helped along by the domestic boom in gas production since 2008 aided by new drilling methods such as hydraulic fracturing, or fracking.
The 2014 draft rule relied on a large and early shift from coal to natural gas. The final regulations would remove that assumption and instead create a new program to encourage states to deploy more renewable energy and energy efficiency by giving credits toward compliance on such projects that begin construction early on.
“We’re disappointed and discouraged that they [the administration] seem to be ignoring the fact that natural gas has greatly reduced emissions,” saidMarty Durbin, chief executive of America’s Natural Gas Alliance, a trade group representing natural-gas-producing companies.
Analysts at Sanford C. Bernstein & Co. said the rule would increase utility consumption of natural gas by 7.1 billion cubic feet a day, or 32%, enough to lift national demand for it by about 10%. The big loser—the coal industry—will see consumption drop 23% by 2020, adding to the crisis already rocking mining. Some opponents have labeled the rule a “war on coal.”
The administration is expected to address these and other concerns over coming weeks to make the case that urgent action is needed.
“We’ll hear the same tired plays from the same special-interest playbook, but the American people know better,” Ms. McCarthy said.
To date, states including California and nine in the Northeast have been in the minority in devising programs to trim carbon dioxide emissions blamed for climate change.
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.”
Electric-grid operators would need to make sure their systems can handle power flowing from decentralized sources, such as millions of rooftop solar systems and thousands of wind turbines. Meanwhile, big utility-owned power plants that have provided round-the-clock electricity may face new restrictions that reduce their hours of operation to limit emissions.
Utilities have been shutting coal plants for several years to satisfy other EPA rules. Since 2011, 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.
The plan drew praise from Democratic lawmakers and presidential contenders. Hillary Clinton, the front-runner for the Democratic presidential nomination, lauded Mr. Obama’s plan on Sunday, pledging to push back against GOP threats to the regulations and to do more to address climate change.
Sen. Marco Rubio, a Republican candidate for president, said Sunday that Mr. Obama’s policies would hurt the economy and drive up the cost of electricity.
“They will do nothing to address the underlying issue that they’re talking about because, as far as I can see, China and India and other developing countries are going to continue to burn anything they can get their hands on,” he said.

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Clean-Energy Debate Pitted Ambition Against Legal Worries

Aug 2, 2015 | The Washington Post

By Joby Warrick

Four weeks before the official rollout, the news for President Obama’s signature regulation on climate change suddenly went from bad to abysmal.
Already, the Senate’s top Republican was urging a nationwide boycott of the carbon-cutting proposal known as the Clean Power Plan. Fourteen states had joined in a lawsuit seeking to block the rule even before it became final. Then came a blow from the Supreme Court: a surprise June 29 decision blocking the White House’s previous attempt at curbing pollution from coal-burning power plants.
By July 7, the head of the Environmental Protection Agency was testily deflecting questions over whether the Clean Power Plan — a pillar of the White House’s climate-change strategy — could survive the gantlet of legal and political challenges it faced.
“We certainly know how to defend against lawsuits, for crying out loud,” EPA Administrator Gina McCarthy told reporters at a Washington news conference.
[White House set to adopt sweeping curbs on carbon pollution]Mapping how the United States generates its electricityVIEW GRAPHIC
White House officials pressed ahead with the proposal, ultimately deciding on an altered version that will be formally adopted at a ceremony Monday. But while the revised rule expresses lofty aims, the details reflect real, practical concerns about the battles still to come: an expected onslaught of litigation and legislation designed to derail the rule.
The final shape of the Clean Power Plan was hashed out over months of often contentious meetings as administration officials debated how to balance two competing objectives. On one side were advocates who pushed for the deepest possible cuts in U.S. greenhouse-gas pollution to help build momentum for international climate talks this December in Paris. On the other were experienced regulators and lawyers who saw trouble ahead as the proposed rule picked up growing numbers of opponents in Congress and in the utilities industry.
As expected, some of the opponents went on the attack Sunday, hours after elements of the revised regulation were made public. Critics called the new version badly flawed and liable to be tossed out by judges.
“The EPA still has created an untested foundation for the rule,” said Scott Segal, director of the Electric Reliability Coordinating Council, an association of power companies that will be subject to the regulation. “It has tread upon established constitutional principles and undermined the sense of federalism that is essential to the Clean Air Act.”
But other observers said the administration appeared to have gotten exactly what it wanted. Supporters said the revisions to the regulation undercut the most salient legal and political objections raised by critics, including the claim that the plan will unfairly burden poor people or will lead to disruptions in the power supply. At the same time, the plan appears capable of achieving its goals of encouraging greater adoption of renewable energy as well as dramatic reductions in heat-trapping carbon pollution over the next 15 years, said S. William Becker, executive director of the National Association of Clean Air Agencies, an independent group that represents state regulators.
“EPA has struck the right balance,” Becker said. “The agency has strengthened its legal defense of the program without sacrificing environmental integrity.”
[Clinton promises to build on Obama climate plan as critics weigh in]In this Jan. 20 photo, a plume of steam billows from the coal-fired Merrimack Station in Bow, N.H. (Jim Cole/AP)
First proposed a year ago, the Clean Power Plan is the administration’s boldest attempt to date to reduce emissions blamed for climate change. The rule takes aim at coal-fired power plants and requires every state to reduce pollution from electricity generation, the biggest single source of greenhouse-gas emissions.
The revised plan sets a goal of cutting carbon pollution from power plants by 32 percent by the year 2030, compared with 2005 levels — a 9 percent jump from the previous target of 30 percent — while rewarding states and utility companies that move quickly to expand their investment in solar and wind power.
The original proposal introduced in June 2014 drew skepticism from many states and furious opposition from congressional Republicans, particularly lawmakers from coal-producing states. In March, Senate Majority Leader Mitch McConnell (R-Ky.) wrote a letter to all 50 governors urging them to ignore the EPA rule, calling it “extremely burdensome and costly” and on “shaky legal grounds.” Six states vowed to boycott the rule, and Democratic governors joined Republicans in lawsuits to block its implementation.
Against a backdrop of rising criticism, EPA and White House officials convened a series of private meetings to determine whether and how to change the proposal. At the EPA, McCarthy, a former Massachusetts environmental official and veteran of numerous fights over pollution laws, presided over daily meetings in the agency’s wood-paneled Alm conference room to hash out possible revisions with the agency’s air-quality officials and lawyers. Later the sessions moved to the Old Executive Office Building, where White House and State Department officials grappled over the rule’s final form.
“It is an understatement to say that the administrator and the agency were under tremendous pressure to get the rule done and, more importantly, to get it right,” said an administration official who attended many of the sessions.
While all the participants expressed support for a robust rule, McCarthy would face the additional burden of having to defend the proposal in front of skeptical congressional panels and, ultimately, in court, said the official, who spoke on the condition of anonymity to describe internal deliberations.
“She recognized the amount of scrutiny this rule will be under, both politically and legally,” the official said. “She has been leading the charge to ensure that it is airtight, that all the legal t’s are crossed and i’s dotted, and that it adheres strictly to the Clean Air Act.”
Among those pushing for the strongest possible rule was Secretary of State John F. Kerry, who will represent the United States in talks later this year on a proposed international climate treaty. Kerry “pushed very hard internally” for a tough regulation, according to a diplomatic official familiar with the private discussions, arguing that the United States needed to set a strong example if it expected other countries to join in a global pact to reduce greenhouse-gas pollution blamed for accelerating Earth’s warming.
“He wanted to make the rule as strong as possible to keep the United States on track for meeting its commitments,” said the official, who also spoke about the deliberations on the condition of anonymity.
The discussions were nearing the homestretch when the Supreme Court issued its June 29 ruling blocking the EPA’s 2011 regulation curbing emissions of mercury and other toxins from coal-fired power plants. The court’s 5-to-4 decision did not overturn the EPA’s regulation but said the agency erred in failing to properly consider the cost imposed on businesses and ratepayers.
The court’s decision cheered opponents of the Clean Power Plan while casting a pall over the now thrice-weekly gatherings of White House and EPA officials to draft the final version of the rule.
“While the court decision was hardly a resounding defeat, it made clear what was at stake,” said the administration official who participated in the internal discussions.
The court decision was an impetus for a number of changes that softened the rule’s impact on states. In the end, White House officials agreed to extended compliance timelines, giving states an additional two years and increased flexibility to help them meet pollution-cutting targets.
A “safety valve” feature was added so states could appeal for additional extensions if disruptions to the power supply appeared likely. Whole sections of the proposal were cut because of concerns that they made the rule vulnerable to court challenges.
But while the regulation was softened in some ways, it was strengthened in others. Pollution-cutting goals were toughened, and a new Clean Energy Incentive Program was added to reward states for acting quickly to invest in renewable energy. The end result was a rule that was both technically strong and legally solid, said Paul Bledsoe, who was a climate-change aide in the Bill Clinton White House.
“The final regulations clearly show the administration walking a fine line,” Bledsoe said. “For the moment they seem to have struck a remarkable balance, providing a secure position from which to negotiate forcefully with other nations in Paris later this year.”

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Why Obama’s Epic Climate Plan Isn’t Such a Big Deal

Aug 3, 2015 | PoliticoPro

By Michael Grunwald

The carbon regulations that President Obama is unveiling today sound like they’ll be a bit stronger than the toothless draft rules he unveiled last year. That doesn’t mean they’ll be strong. And it certainly doesn’t mean they’ll be “the strongest action ever taken to combat climate change,” as The New York Times breathlessly referred to them in its news pages yesterday morning.
It’s not yet clear exactly what they’ll be, because so far the Obama administration has only revealed some non-binding national goals, not the hard emissions targets that states will be required to meet. But the early leaks suggest that the Clean Power Plan will require the electricity sector to decarbonize slightly more than it would have under the draft plan. The sector’s emissions are expected to drop 32 percent from 2005 levels by 2030, up from 30 percent in the draft. The plan now anticipates renewable energy to rise to 28 percent of the grid’s capacity by 2030, instead of 22 percent, and coal to drop to 27 percent of capacity, instead of 31 percent.
That’s nice, but by the end of this year, according to Bloomberg New Energy Finance, the power sector’s emissions will already be down 15.4 percent from 2005 levels — about half the anticipated reductions in just a decade, and before the plan goes into effect. In other words, even under the strengthened plan, the rate of decarbonization is expected to slow over the next 15 years. What, did you think the strongest action ever taken to combat climate change would actually accelerate the nation’s efforts to combat climate change?
The final rule will also delay the first deadline for states to meet interim targets from 2020 to 2022, a significant walkback in a plan that Obama, cueing the Times, called “the biggest, most important step we’ve taken to combat climate change.”
If you’re really ranking them, the Clean Power Plan is at best the fourth-strongest action that Obama has taken to combat climate change, behind his much-maligned2009 stimulus package, which poured $90 billion into clean energy and jump-started a green revolution; his dramatic increases in fuel-efficiency standards for cars and trucks, which should reduce our oil consumption by 2 million barrels per day; and his crackdown on mercury and other air pollutants, which has helped inspire utilities to retire 200 coal-fired power plants in just five years. The new carbon regulations should help prevent backsliding, and they should provide a talking point for U.S. negotiators at the global climate talks in Paris, but the 2030 goals would not seem overly ambitious even without new limits on carbon.
Take the goals for coal. Plants that emitted nearly 600 million tons of carbon have been retired or scheduled for retirement since 2005, but at a briefing yesterday, Environmental Protection Agency administrator Gina McCarthy said the total reductions for the sector by 2030 are only anticipated to be 870 million tons. So most of the reductions have already been achieved. Reducing coal to 27 percent of our power capacity by 2030 would be significant, since it was about 50 percent in 2005 and is still nearly 40 percent. But the coal industry is in shambles—another major producer, Alpha Natural Resources, is expected to file for bankruptcy today—and the Sierra Club’s Beyond Coal campaign, which has met or exceeded all its goals since its launch in 2010, has set a goal of retiring the entire U.S. coal fleet by 2030. If coal still provides 27 percent of our power in 15 years, it’s hard to imagine us meeting any of Obama’s larger climate goals.
The starkest change in the EPA’s numbers between the draft and final versions of the new rule was its increased expectations for renewable energy, which prompted Republicans like Jeb Bush to denounce the plan as a disastrous assault on America’s pocketbooks. But as McCarthy had basically admitted to me, the expectations for renewables in the draft plan were absurdly low, largely because they were based on the U.S. government’s routinely ludicrous energy forecasts. In fact the draft plan’s bar was so low that five states had already achieved their 2030 goals. McCarthy suggested yesterday that the revisions have less to do with substantive changes in the plan than with a belated recognition of America’s renewables boom: “We have larger amounts of renewables that are anticipated to be in the energy mix regardless of this rule.” Clearly, EPA will raise the bar, but as wind and solar prices continue to plummet and installations continue to soar, a truly strong plan would raise the bar a lot higher.
Nevertheless, the new plan is already being hailed by environmentalists, denounced by industry, and hyped by the media as a bombshell. It doesn’t fit the narrative to suggest that the plan is really kind of eh. It only fits the available facts.

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How Obama's New Emissions Rules Will Likely Shape the White House Race

Aug 3, 2015 | LA Times

By David Lauter

With Monday's release of landmark rules to combat global warming, President Obama is putting into place what probably will be the last piece of his ambitious second-term agenda – one that highlights deep divisions in the country and helps shape the race to succeed him.
On immigration, healthcare, same-sex marriage and now climate change, Obama has aggressively used the powers of his office to align public policy with the values and aspirations of a largely urban, liberal and minority constituency heavily concentrated on the East and West coasts.
In the process, he has courted a backlash from Republican constituencies and states – an older, whiter population concentrated in the South and the nation's interior.In dispute over coal mine project, two ways of life hang in the balance
That division was plain to see in reactions to the new rules, which aim to change how the nation generates electricity in order to cut emission of carbon dioxide and other gases blamed for warming the world’s climate.
Over the next 15 years, the plan would aim to sharply reduce the use of coal and ramp up the use of wind and solar power. Currently, coal accounts for almost 40% of the nation’s electricity, while wind and solar produce about 5%. By 2030, if the administration's plan works, renewables would account for 28% of U.S. power generation, edging past coal at 27%.
The plan would boost efforts already underway, mostly in coastal states, led by California, to greatly increase the use of renewable power. But for those parts of the country still heavily reliant on coal, nearly all of them Republican-governed states in the Midwest, Great Plains and South, the rules would force a major economic transition that many elected officials have vowed to resist.
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Democratic presidential hopefuls quickly lined up to praise the plan. Republicans, who have accused the administration of waging a “war on coal,” attacked it.
Obama is scheduled to formally unveil the regulations on Monday, but administration officials released an outline on Sunday.
“Our country’s clean-energy transition is happening faster than anybody anticipated,” Environmental Protection Agency chief Gina McCarthy told reporters in a conference call. The new rules will accelerate those trends and maintain the reliability and affordability of the nation’s electrical supply while slowing climate change, she said.
The EPA will issue the rules using its authority under the Clean Air Act, meaning that Obama does not need to seek congressional approval. But opponents of the plan have already said they would try to block it in court.See the most-read stories this hour >>
Anticipating lawsuits, the administration dropped some elements of a preliminary proposal it issued in June 2014 and gave states an additional two years, until 2022, to comply with the new rules. But administration officials say the new plan will deliver a somewhat bigger cut in carbon emissions than they had projected last year. That's largely because emissions from power plants are already dropping, McCarthy said.
Taking into account the improvements already underway “made the lift we had to achieve a lot lower,” she said.
Overall, the EPA estimates the plan will reduce emissions from the nation’s electrical industry by 32% compared with the level in 2005, which is the baseline the administration uses. Because electricity generation accounts for about one-third of U.S. carbon emissions, reductions from power plants would be a major step toward the administration’s goal of cutting total U.S. emissions by 26% to 28% over the next 15 years.
The EPA estimates that the rule will add $8.4 billion to utility costs over that period, but will yield at least four times that amount in benefits, said White House senior advisor Brian Deese. The utility industry already spends about $100 billion a year on plants and equipment, McCarthy noted.
Administration officials see the new rules as a significant enticement to get other countries to commit to reducing their greenhouse gas emissions in global talks. Negotiations are scheduled to convene in Paris in December with hopes of achieving a new international agreement on combating climate change.
But some environmental advocates say the administration’s plans are already too weak to stop the warming of the world’s climate. They are likely to carefully scrutinize the new plan for signs that the administration made too many concessions to industry. Major environmental organizations withheld most comment on the new plan Sunday, saying they needed time to study the details.
Political figures were less reticent.
Hillary Rodham Clinton, the front-runner for the Democratic nomination to succeed Obama, issued a statement calling the plan “a significant step forward” and saying that “as president, I’d defend it.” Other Democrats seeking the nomination followed Clinton’s lead.
The main contenders for the Republican nomination, by contrast, were all already on record opposing the administration’s plan, which has been under development for several years. Most have also expressed doubts about whether climate change is a significant problem that requires a government response.
By a coincidence of the calendar, as the administration began publicly outlining its plans, many of the leading candidates for the Republican nomination were at a gathering of wealthy donors assembled by Charles and David Koch, the billionaire brothers who have heavily funded efforts to oppose government regulation of the economy, particularly the energy industry.
Speaking to that gathering, at a resort hotel in Dana Point, Sen. Marco Rubio (R-Fla.), one of the presidential aspirants, said the new plan “will make the cost of electricity higher for millions of Americans” and will achieve nothing because any U.S. reductions will quickly be overwhelmed by increased emissions from other countries.
“As far as I can see, China and India and other developing countries are going to continue to burn anything they can get their hands on,” Rubio said. “We must balance our interests for the ecology, which is legitimate, with our interest for the economy,” he added.
Jeb Bush, in a statement, called the administration’s plan “irresponsible and overreaching” and said it would “throw countless people out of work” and increase energy prices.
The stark political divide means the administration’s plan for reshaping the power industry will join an already lengthy list of major policies up for grabs in the 2016 election. In addition to Obama's big domestic initiatives, the list includes the proposed agreement to limit Iran’s nuclear programs and the warming of U.S. relations with Cuba.
The administration's plan would give each state a target for reducing emissions and ask them to come up with detailed blueprints for achieving those goals. Those blueprints could include a wide range of techniques, including increased use of renewable fuels, expanded use of nuclear power, closing older coal-fired plants and improvements in energy efficiency. The plan will include incentives for states to expand renewable energy use early in the process and to invest in cleaning up dirty plants in low-income areas that have often suffered the worst effects of pollution.
A new president who opposed the plan could try to repeal it entirely or give states waivers from compliance. In the meantime, both sides will head quickly to court.
Opponents are urging states to go slow until that litigation is over – a strategy that could significantly delay the plan’s effects. Earlier this year, for example, Senate Majority Leader Mitch McConnell (R-Ky.), a major defender of the coal industry, sent a letter to governors urging them to refuse to comply.
The administration's plan “goes far beyond” the EPA’s legal authority, he said, predicting that “the courts are likely to strike it down.”

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GOP Presidential Hopefuls Blast Obama on Climate

Aug 3, 2015 | The Hill - E2 Wire

By Timothy Cama

Top Republican presidential candidates blasted the Obama administration’s landmark climate rule for power plants.
Citing concerns, like the science behind climate change or the economy, 2016 hopefuls said at a late-Sunday event hosted by Freedom Partners that President Obama’s carbon limits would only hurt the country.
Sen. Ted Cruz (R-Texas) said climate change simply isn’t happening, and the temperature data proves it.
“Facts matter,” Cruz said at the event hosted by the Charles and David Koch-backed group.
“If you look to the satellite data in the last 18 years, there’s been zero recorded warming. Now the global warming alarmists, that’s a problem for their theories. Their computer models show massive warming, the satellite says it ain’t happening.”
Politico’s Mike Allen characterized Cruz’s position as “full-on denial” of the overwhelming consensus that the climate is changing and humans are significantly contributing, and Cruz did not disagree.
He said the new power plant rules that Obama will formally release Monday show that leading Democrats have abandoned working Americans.
“And they have chosen to go with California environmentalist billionaires and their campaign donations instead of the jobs of union members,” he said. Billionaire environmental activist Tom Steyer has donated to a number of Democrats.
Cruz pledged that he would move to block the rules if elected.
Sen. Marco Rubio (R-Fla.) did not disagree with the science of climate change, but focused on how the new rules would hurt the economy.
“It will make the cost of electricity high for millions of Americans,” he said, adding that while a billionaire wouldn’t mind the increase in energy costs, a single mother would.
Rubio also questioned the effectiveness of the rules, saying that major developing countries like China and India will still emit massive amounts of greenhouse gases.
“The bottom line is that American energy will allow millions of people to improve their standard of living, just as it has eradicated poverty for millions of people around the world,” he said.
The rules, which top Obama administration officials detailed Sunday, would mandate a 32-percent reduction in the power sector’s carbon emissions, stronger than what the administration proposed last year.
Former Florida Gov. Jeb Bush (R) said the rules are unconstitutional and will not survive court challenges.

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Bush: Obama Carbon Rules 'Unconstitutional'

Aug 3, 2015 | The Hill - Ballot Box

By Jesse Byrnes

Republican presidential candidate Jeb Bush is panning President Obama's newly unveiled climate change rules for power plants, ascribing them to continued executive branch overreach.
"It's typical of the Obama administration, taking executive power he doesn't have," the former Florida governor said Sunday night at a Freedom Partners event in southern California, noting current U.S. policy on pollution.
"I believe it's unconstitutional, and, I think, in a relatively short period of time, the courts will determine that as well," Bush added.
The Environmental Protection Agency maintains its action on the climate rule is within its power for regulating pollution under the Clean Air Act, but is expected to face legal challenges.
The regulation unveiled by the Obama administration on Sunday aims to reduce carbon emissions by 32 percent nationwide by 2030, based on carbon levels in 2005.
If states do not submit plans to reach the specified carbon-reduction goals, the EPA will write and impose strategies for them. Obama will announce the plan Monday afternoon.
"I think it's going to be a disaster," Bush said Sunday night. "For high, sustained economic growth, where people have a chance at earned success, this is going to be a job killer."
Bush mocked a 2 percent annual U.S. economic growth rate, saying with it the Obama administration "wants to create the new normal," adding, "2 percent will damn us as a nation."
"This is going to be a disaster and we should fight it," Bush said.
Sen. Ted Cruz (Texas), another Republican presidential candidate, pledged to block the new rules if elected, saying they would raise Americans' electricity costs, according to The New York Times.

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GOP Voters Reject Climate Plan Despite Backing Carbon Limits

Aug 3, 2015 | E&E - Greenwire

By Jennifer Yachnin

Republican voters in two early primary states are less than enthusiastic about the Obama administration's Clean Power Plan, despite endorsing limits on carbon pollution, according to a poll released today.
The survey from GOP firm American Viewpoint queried 400 likely Republican primary voters in South Carolina and New Hampshire on a host of energy policy questions, including whether voters would support limiting carbon pollution from coal-fired power plants.
According to the survey commissioned by the NRDC Action Fund and the League of Conservation Voters, a majority of GOP voters in both states endorse limiting greenhouse gases. Fifty-nine percent of Republican voters in South Carolina and 58 percent in New Hampshire back restrictions. About a third of voters surveyed in both states would oppose any restrictions.
But only 50 percent of those polled in New Hampshire and 52 percent in South Carolina said they would support the Clean Power Plan's goal of reducing carbon dioxide from coal-fired power plants by 2030. In New Hampshire, 42 percent of GOP voters said they opposed the plan, and that figure reached 43 percent in South Carolina.
In addition, support for the Clean Power Plan slipped further after Republican voters were read two statements: one arguing the regulation would cost jobs and increase energy prices, and another arguing the regulation would increase the use of renewable energy sources and create jobs.
After hearing those arguments, only 44 percent of those polled in New Hampshire and 41 percent in South Carolina said they would support the Clean Power Plan. Among South Carolina voters, 50 percent of those surveyed said they would oppose the plan after listening to arguments from both sides.
But the poll also found a majority of GOP voters want Republican presidential primary contenders to offer a "clean energy plan." Among those polled, 72 percent in New Hampshire and 68 percent in South Carolina said it is important for candidates to offer such plans.
The poll, conducted July 21 to 26, had a 4.9-point margin of error.
A Quinnipiac University poll released today also asked would-be voters about climate change, focusing on Pope Francis' recent encyclical endorsing action on global warming.
The nationwide survey of 1,644 registered voters found a majority of those polled, 68 percent, believe that human activity contributes to climate change. Twenty-seven percent of voters do not believe human activity causes global warming, while 6 percent remained undecided.
Although similar percentages of voters agreed with the pope's call to action -- 65 percent said the world should "do more to address climate change," while 27 percent disagreed with that statement -- the survey found voters do not see climate change as a moral issue.
Among those polled, 49 percent said climate change is not a moral issue, while 44 percent said it is and 6 percent remained undecided.
The July 23-28 survey had a 2.4-point margin of error.

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Lawyers Brace for 'Tsunami' of Litigation to Follow Climate Rule's Release

Aug 3, 2015 | E&E - Energywire

By Ellen M. Gilmer

Attorneys for states, environmental groups and the power sector are gearing up for a cascade of litigation as the Obama administration rolls out its biggest effort yet to curb greenhouse gas emissions.
Though U.S. EPA is making some concessions in the final Clean Power Plan, set for formal release today, the changes are unlikely to fend off broader challenges to the rule's unprecedented impacts on power plants across the country.
Government lawyers and their environmental allies got a preview of their opponents' legal arsenal in April, when energy companies and 15 states attempted to block EPA from finalizing the climate plan. Though the lawsuits were recently dismissed as premature, the critics' central argument that the agency lacks authority to implement the new rule is poised to live on in impending litigation.
Environmental groups went on the offensive last week in an attempt to dismantle that argument and others expected to reach the courtroom. Natural Resources Defense Council attorney David Doniger said in a press call that he expects a "tsunami" of litigation to rush through the courts but an ultimate victory for EPA.
"A coalition of polluters and their political allies have already launched a torrent of litigation against the Clean Power Plan, and they're batting 0 for 6 in these premature cases," he said, referring to the dismissed suits. "We expect that torrent to turn into a tsunami when the final Clean Power Plan is announced. But no matter how many cases are filed and how many press releases are issued, the legal attack is likely to fail."
NRDC and a coalition of environmental groups plan to intervene on EPA's side in the anticipated challenges to the rule.
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Opponents in the power sector and mostly Republican-controlled states, meanwhile, are eager to get back in the courtroom. A panel for the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in two consolidated cases in April, but the judges remained tight-lipped about their leanings on the merits of the cases, ruling only that the challenges were premature.
Central to opponents' legal arguments is the question of EPA's jurisdiction in light of seemingly unresolved differences in the Senate and House versions of a 1990 amendment to Section 111(d) of the Clean Air Act, the agency's authorizing statute for the Clean Power Plan. The Senate version is interpreted to bar EPA from crafting new rules for a pollutant that is already regulated, while the House version is interpreted to bar the agency from regulating a source that is already regulated.
A separate provision of the Clean Air Act already regulates power plants, so the Clean Power Plan, which targets existing power plants, would be out of bounds under opponents' interpretation of the House version of the amendment.
"The agency has simply taken this section and attempted to create a scheme where Congress said it could not go," said Squire Patton Boggs attorney Geoffrey Barnes, representing Murray Energy Corp. in oral arguments in April (Greenwire, April 16).
EPA has noted that it favors the Senate version, arguing that it captures the intent of the Clean Air Act by allowing EPA to regulate greenhouse gases. Government lawyers further point to legal precedent that gives agencies deference when interpreting ambiguous laws.
McDermott Will & Emery attorney Jacob Hollinger, who previously supervised air enforcement attorneys in EPA's Region 2 office in New York, told EnergyWire he expects the agency to refine that defense to explain that the Clean Power Plan is actually in line with both versions of the amendment.
"EPA really focused on the conflict between the House and Senate amendments in the draft rule," Hollinger said. "I think we can expect a revised defense, one that focuses less on conflict and more on alternative readings of the House language."
Fifteen states -- Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Wisconsin and Wyoming -- joined earlier challenges to the rule. Many of those states and other critics, including Texas, are expected to sue over the final version.
The soon-to-be plaintiffs will also likely lean on another challenge to EPA's jurisdiction, arguing that the Clean Air Act does not authorize the agency to set emissions targets across the power sector -- outside the "fence line" of power plants. The draft Clean Power Plan set state targets based on four building blocks: coal plant efficiency, increased use of natural gas, development of renewables and increased demand-side efficiency.
Only the first measure is inside the traditional fence line of EPA air regulation, drawing criticism from states and industry representatives who say the agency is fashioning itself as a full-scale energy regulator instead of focusing on power plant emissions.
"The difference in this case is that the EPA would accomplish emission reductions primarily through changes in the way energy is produced, distributed and used -- and not through the application of emission-control technology on affected power plants," Hunton & Williams partner Allison Wood wrote in a New Jersey Law Journal article. "Imposing an energy management regulatory scheme is beyond the EPA's authority."
EPA is relying on a section of the Clean Air Act that requires the agency to consider the "best system of emissions reduction." Supporters say the agency is on solid legal ground because it has modeled the rule after states that have succeeded in reducing emissions by taking a full-grid approach.
"The statute leaves it to EPA to determine what the best system is, and in the case of the power sector, the various power companies and states that have successfully reduced carbon pollution have done that by flexibly applying the systemwide approach that is reflected in the proposed Clean Power Plan," Environmental Defense Fund attorney Tomás Carbonell said.
The final rule takes the efficiency building block out of the equation, effectively removing one target from "beyond-the-fence-line" legal attacks (Greenwire, Aug. 1).
Another leading argument from opponents of the Clean Power Plan is likely to focus on federalism. Laurence Tribe, the constitutional scholar who made headlines for representing Murray Energy against EPA after years of being considered a liberal icon, told the D.C. Circuit that EPA was making a power grab by "commandeering" state governments to carry out federal policy (Greenwire, March 17).
Supporters of the plan say the approach is classic cooperative federalism, permitted by law as a tool for states and the federal government to work together to solve a problem. States that do not want to create a plan for meeting EPA's targets can simply decline to do so, and EPA will provide a federal implementation plan.
Finally, states and businesses worried about the Clean Power Plan's impact are expected to bring standard procedural and technical challenges against the rule, arguing that the agency's data was insufficient or that EPA used improper methods in reaching its conclusions. E&E Legal (a group with no ties to E&E Publishing) rolled out its legal allegations in a report last week, accusing EPA of improperly teaming up with environmentalists to draft the rule.
"Congress or the courts -- or EPA, in a moment of rationality -- should stop these rules from taking effect before the (intended) anticipatory harms of a sham rulemaking are imposed upon millions of Americans, without years of delay and devastation before the ultimately illegal agency rulemaking is overturned," report author Chris Horner said in a statement.Tweaking strategy
Though changes in the final Clean Power Plan are unlikely to alter opponents' key lines of argument in future litigation over the rule, experts say challengers' initial anticipated strategy of asking the court to stay the rule's implementation may need some tweaking.
The final rule will require states to submit final implementation plans to EPA by 2018, with an interim compliance period beginning four years later. The deadlines are an extension of draft proposals that would have required state plans next year and compliance by 2020.
A longer time frame could make it tougher for states and industry to convince the court that they meet the high bar for a court-ordered delay, which requires a plaintiff to show that it is likely to succeed in the overall litigation, that it would suffer irreparable harm if the rule takes effect, that a stay of the rule would not injure other parties and that a stay would serve the public interest.
"They'll have an insurmountable task to demonstrate to the court that they'll suffer irreparable harm in the months it takes to brief and argue this case," said Doniger of NRDC. "States that oppose the Clean Power Plan are unlikely to persuade the court that the planning involved in writing an initial state plan in the next year constitutes irreparable harm -- especially when the final plans don't have to be completed for two more years, if reports are right -- and especially when they have the option to decline to write a plan at all, and to leave it to EPA to regulate power plants directly."
Crowell & Moring partner Thomas Lorenzen, who previously defended EPA rules for the Justice Department, told EnergyWire last week that the changes could be intended to weaken critics' arguments for a stay (EnergyWire, July 30).
Delays to the deadlines are unlikely to diminish environmental groups' support for the rule.
"I'm going to be very vigorous about not commenting on what we're hearing," Doniger said last week. "But I will say that the kind of delays that we have been hearing are unlikely, at least for NRDC, to take us to the extreme where we would be challenging them."
State and industry challenges to the rule are expected as soon as today.

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Top US Coal Company Vows Five Lawsuits Against Climate Rules

Aug 3, 2015 | The Hill - E2 Wire

By Timothy Cama

Murray Energy Corp. said it is filing five federal lawsuits to fight the the Obama administration’s new climate rules for power plants, and it expects to win.
The company, which is the country’s largest privately held coal mining company, is filing a lawsuit against each of the three individual regulations the the Environmental Protection Agency (EPA) will formally unveil Monday.
It will also file a lawsuit against the entire regulatory package, and appeal a lawsuit that it lost in June against the one of the regulations when it was in the proposal phase.
“This illegal rule will adversely restructure the electric power system in America and will force every state to radically change their energy policies,” the company said in a Monday statement. “It will dramatically increase the cost of electricity for all Americans, with no environmental benefit whatsoever.”
Bob Murray, the company’s president, said the revised deadlines in the rule do not improve it, and only push back big cost increases that families cannot afford.
“We have no choice but to challenge the Obama administration’s illegal actions in court, and we will prevail,” he said.
Murray is a frequent, vocal critic of President Obama and his environmental policies.
In a speech last month, Murray called Obama the “nation's greatest destroyer” and said he is “intent on destroying coal and our country for their bizarre personal and political ends.”
The company has filed numerous lawsuits against Obama policies.
Last year, it sued to stop the proposed climate rule for existing power plants and became the lead appellant of numerous energy companies and states challenging it. The Court of Appeals for the District of Columbia Circuit threw out the lawsuit in June, saying it was premature.
Obama plans Monday to announce finalized versions of that rule, along with a rule limiting carbon emissions from newly built power plants and a proposed rule to lay out a framework for states that do not voluntarily comply with the existing plant rule.
Murray said that once those three rules are formally proposed in the Federal Register, it will file lawsuits against each one and against the entire package.
It will also appeal the rejection of its prior lawsuit, joining states that have filed a similar appeal.

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Clean Power and the Divided States of America

Aug 3, 2015 | E&E - Energywire

By Peter Behr

U.S. EPA's Clean Power Plan is opening new fault lines among sparring states across the country and the federal government, triggered by sharp political differences over climate policy.
At first glance, the Obama administration's principal climate policy initiative seems to have landed in the same political bucket as health care and immigration, with blue states and red ones respectively aligned for or against Washington-led policies. "The Clean Power Plan will be a driver in a new chapter in the debate over federalism, without question," said Peter Fox-Penner, chairman emeritus of the Brattle Group consulting firm. But there is a lot more going on, he added.
Opposition to EPA's plan appears to have hardened in GOP-led states. At the same time, grid managers and utility executives in both "pro" and "con" states have come together to consider common compliance plans, Fox-Penner noted.
The final CPP released today encourages regional compliance strategies that permit trading of renewable energy generation output from states with surpluses into states that need it to meet compliance targets. "I think EPA will want to facilitate those kinds of developments," said Ken Colburn, a principal at the Regulatory Assistance Project, which advises state officials on environmental and energy policy.
Collaboration will be embraced in parts of the country and shunned in others, raising a long-term question, experts say: Will the CPP further divide the nation along state and political lines, pushing possible consensus on a global climate threat further into an indefinite future? Or will the CPP serve to tighten regional linkages, eventually pulling the country closer to a more common view?
"It is a shame things have become so polarized and that looking to states to carry out their responsibilities under a federal standard is so controversial," said Kevin Kennedy, deputy director of the World Resources Institute's U.S. Climate Initiative.
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Shortly after EPA delivered the proposed CPP a year ago, governors in 15 states had signed onto legal action opposing the plan. All but one were headed by Republican governors.
A states'-rights argument resonates in protests by governors and attorneys general. "Rather than limiting itself to EPA's narrow mandate of air pollution control, the proposed rule forces states to abandon their sovereign rights in favor of a national energy consumption policy," said Oklahoma Attorney General E. Scott Pruitt (R), one of 13 state chief legal officers who stated opposition to the EPA plan last August. All were from GOP-led states.
Opposing states have vowed to fight EPA, arguing that the Clean Air Act cannot be used to regulate a state's power plant carbon dioxide emissions. The Ohio Environmental Protection Agency protested to EPA: "Nowhere is U.S. EPA delegated authority for states to usurp the Federal Power Act and mandate generation dispatch based on CO2 emissions rather than cost."
On the other side, attorneys general from 11 states and the District of Columbia, and New York City's corporation counsel, applauded EPA in a December 2014 comment. The CPP "puts states in the driver's seat to implement and enforce the required emission reductions," stated the attorneys general, all Democrats. The plan was also endorsed last year by environmental officials and regulators from 15 states, 13 headed by Democratic governors, plus two from GOP-led political swing states.
Doug Scott, former chairman of the Illinois Commerce Commission and a vice president of the Great Plains Institute, told ClimateWire in May that environmental and air regulators from 41 states have participated in discussions of collaborative approaches to the CPP (ClimateWire, May 18). "Our experience from states that are going to make a legal challenge, they have said nothing publicly, but still behind the scenes they're saying, 'OK, what are our options?'" Scott said.Regional identities
Support and opposition to the CPP along political lines departs from the old maxim preached by former Sen. Jeff Bingaman (D-N.M.) and other congressional veterans. They observed that on major energy legislation, the critical alignments typically were not by political party but by geology; more precisely, they were between states that generate and export energy and states that are mainly energy consumers.
In this view, the United States is a nation of regions, with the particular energy profile of each part woven into its region's culture. The Texas-Oklahoma oil patch is different from Appalachian or Rocky Mountain coal states, and in turn, both are unlike the hydropower-rich Pacific Northwest. All of these resource-endowed regions think differently about energy than states dominated by urban customers.
Texas is the prime example of a state defined by its resources. The Lower 48 states are divided into three separate electric power grid networks, each with tightly synchronized power flows inside its boundaries. The Eastern and Western interchanges are separated with geological logic by the Rocky Mountains. Texas split itself off into its own grid to ward off Washington, D.C., energy regulation and keep other states' hands off its cheapest power resources -- including its deposits of lignite coal. Richard Cudahy, a 7th U.S. Circuit Court of Appeals senior judge and former state energy regulator, wrote about a Texas utility official response in a 1976 confrontation that could have subjected Texas to federal energy regulation: "The sons of bitches are trying to steal my lignite!"
Opposition to the CPP is centered on coal. A recent article in the journal of the Federalist Society argued, "for many States, the rule will create real hardship for the States' citizens. EPA's proposal is built on a fault line, with California and northeastern and northwestern States, which do not use much coal, on one side, and most Midwestern and southern States, which use much more coal, on the other." Compliance costs will fall most heavily -- and unfairly -- on coal-dependent states, the article authors argued. The United States are divided by competition for jobs, and states with relatively cheap power covet their advantage.
The CPP debate goes beyond a simple model of resource-based politics, however. It combines a paramount energy issue -- the future of the nation's electricity supply -- with an emotional environmental debate -- greenhouse gas emissions and climate change. Political differences harden when energy and environment intertwine. The auto bumper stickers that appeared in Wyoming and Texas in 1973, "Let the bastards freeze in the dark" or "Let the Yankee bastards freeze," were a retort to Eastern environmentalists opposing oil production at a time when energy prices were escalating, according to news reports at the time.
When it comes to environmental issues, the Bingaman regional rule of thumb isn't the decisive element, said Daniel Matisoff, an assistant professor at the Georgia Institute of Technology's Strategic Energy Institute. Studies of why states take different paths on environmental policy lead to a single, most dominant reason, he said.
"The No. 1 factor over time is definitely politics. Specifically, with RPS (state renewable energy portfolio standards) and other state energy policies, the choices tend to be dominated by a liberal-conservative divide," he said. According to the U.S. Energy Information Administration, the District of Columbia and 31 states have enacted renewable standards (and six have non-mandatory goals). Another 13 states, 10 of them in the South, did not adopt RPS rules or goals. A Gallup polling analysis ranks 11 of those states among the most conservative in the United States.
But the influence of a state's natural resource endowments can push historical alignments in new directions. The Governors' Wind Energy Coalition, which advocates for wind energy interests, lists 22 members -- eight of whom are Republican chief executives. Five of the eight GOP members come from states with large wind power output.
Ohio and Pennsylvania still contribute a large block of members to the House Coal Caucus, and the Ohio EPA cited coal's contribution to cheaper electricity as a foundation of the state's historical manufacturing base. "Any increases to electricity cost, which Ohio EPA expects will occur under this proposal, could be very costly and damaging to the manufacturing industry in Ohio," the agency said.
However, coal's economic importance to Ohio loses ground as production grows from the Marcellus and Utica shale gas plays. They are delivering royalties to state residents and creating a wide range of new jobs, from drilling to steel pipe manufacturing, road and pipeline construction, engineering services and -- officials hope -- petrochemical manufacturing in the future. Ohio.com reported last month, "Coal is on the way out and cleaner burning natural is moving in," noting new gas-fired generation projects drawing on the state's new gas resources.Regional facts of life
The upheaval from shale gas technology is not the only lever for change that lies beyond governors' control, Fox-Penner said.
Regional coordination is a fact of life today for power networks, recognizing the shared nature of electricity, which travels across state boundaries on transmission lines, obeying laws of physics, not voters' choices. Collaboration among state grid operators occurs naturally among the regional transmission organizations (RTOs) and other multi-state grid planners and managers, Fox-Penner said.
New technology is steadily upsetting the status quo, as well, he added. Renewable power costs continue to decline. The traditional line between transmission and distribution networks has started to blur. The potential of large utility-size solar power installations is steadily expanding. "The technology and cost shifts in the industry are everywhere," he said.
"These are common drivers that all states will have to adapt to. The CPP comes on top of that," he said. Because of these trends, he added, "my gut feeling is that there won't be an acceleration of states splintering in a bad way. They are more likely to learn from each other, not because the CPP is making them, but because so much is changing in the industry in every realm. You can't afford to put blinders on and try to build a fortress around yourself."
Jennifer Macedonia, a senior policy adviser at the Bipartisan Policy Center, said she expects to see a lot of states take up an option under the CPP to follow an emissions trading approach, allowing companies access to lower-cost reductions outside the plant and potentially outside the state. "Various studies show multistate trading would be beneficial from a cost and reliability standpoint," she said.
"You're likely to see a lot of states with interest in that approach, as long as EPA better accommodates a trading-ready plan that doesn't require detailed negotiations between states. I would expect more agreement, in the sense that things should be more settled. When they are settled, even if you don't like it, there is certainty and more likely acceptance," she said.
"States being laboratories of experimentation is a great idea," Matisoff said, citing U.S. Supreme Court Justice Louis Brandeis' famous formulation. "And we see a lot of it. We see states learning lessons from others states. We might end up having these regional plans that allow compatible responses, and the effect is a national plan, although it's more complex and less efficient."
Opposing the potential of the CPP to push states toward collaboration over energy is the need for new regulatory decisions and policies and new markets in many states to trade carbon, boost renewable energy production and efficiency programs, and expand transmission. Some state governors vow to "just say no" to the CPP. The shortest path to comprehensive nationwide energy policy still appears to run through Congress, where partisanship rules.
"Few [economists] would disagree that a national carbon price or a national plan would be more efficient. The EPA pushed [the CPP] because there wasn't action by Congress," Matisoff said. The agency is constrained by a "clunky" law from the 1970s, he added. "Faced with that, there is hope that Congress might be encouraged to do something more efficient. I wouldn't discount it in the future."
The political strife surrounding the CPP makes that future even harder to read. The World Resource Institute's Kennedy cautioned, "I wouldn't say I'm an optimist that the CPP by itself, as it's implemented, will start to look like a nationally coherent program. But I'm hopeful -- recognizing this is as much hope as hard-nose thinking -- that you will see a lot of regional cooperation."

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Mining Group Asks EPA to Stay its Climate Rule

Aug 3, 2015 | The Hill

By Lydia Wheeler

The National Mining Association (NMA) is asking the Obama administration to stay its climate change rule for power plants pending judicial review.
The Washington D.C.-based national trade organization said the new rule from the Environmental Protection Agency, which President Obama will announce later today, is going to increase energy costs.
“EPA’s final Clean Power Plan reflects political expediency, not reality for supplying the nation with low cost reliable power,” NMA’s President and CEO Hal Quinn said in a statement. “Left in place are targets for replacing affordable energy with costly energy.”
Under the rule, EPA is asking states to formulate plans to reduce carbon emissions by 32 percent from 2005 levels by 2030. Plans are due in September of 2016, but states that need more time will be able to request a two-year extension for final plan submissions. Compliance would begin in 2022 instead of 2020 and emission reductions would be phased in gradually up to 2030.
In a letter to EPA Administrator Gina McCarthy, NMA said the climate change rules are likely to be reversed on appeal, since Congress did not give the agency the power to restructure how the nation produces and consumes electricity.
“Congress did not even give the Federal Energy Regulatory Commission, much less EPA, that power,” the letter said. “Instead, Congress, in the Federal Power Act, preserved states’ inherent power over electric utility resource planning and development.”
Since more than 90 percent of coal sold in the U.S. is used for power generation, NMA said the EPA rule would also cripple domestic coal production and eliminate thousands of mining jobs. The group is pushing EPA to stay the effectiveness of the rule until after it’s litigated on its merits.
“All of this time, effort, money and controversy will be for naught if the rule is overturned,” NMA said in its letter to the EPA. “Worse, changes to the grid that states would not choose to make absent the rule will be locked in if a stay is not issued.”
NMA wasn’t the only industry group voicing its opposition to the rule on Monday.
The National Association of Manufacturers (NAM) said it's keeping all options on the table, including litigation, to protect manufacturers' ability to compete in the global marketplace.
"This regulation will be exceptionally difficult for manufacturers to meet and will increase energy prices and threaten electric reliability,” NAM’s President and CEO Jay Timmons said in a statement. “Manufacturers are committed to being responsible stewards of our environment, leading the way in that effort, and we are disappointed the Obama administration has chosen to pursue this path.”
The U.S. Chamber of Commerce said it's also considering litigation to stop the rule it's calling “an EPA regulatory power grab,” from taking effect.
“While the final rule will take some time to analyze, we know that it still has the same fundamental legal flaws and imposes the same unbearable costs as the original proposal, while having no measurable impact on global emissions,” Chamber President and CEO Thomas Donohue said in a statement. “With these rules, the EPA is trying to stretch its authority beyond recognition and to double down on its attempt to impose an unprecedented takeover of our energy system.”

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Coal Producer Murray Will Sue Four More Times Over Carbon Rules

Aug 3, 2015 | PoliticoPro - Whiteboard

By Alex Guillen

Coal producer Murray Energy plans to file four new lawsuits against EPA's final carbon rules for power plants, the company said today.

Separate suits will challenge each of the three rules being finalized today: for existing plants, modified and reconstructed plants, and new plants. The fourth suit will challenge the overall rulemaking.

Those are in addition to the company’s previous suit challenging the proposed rule. Murray and a number of states recently asked for an en banc rehearing in that case. The court rarely grants such requests.

Founder Robert Murray called the two-year delay of the initial implementation deadline "irrelevant."

"American families and businesses will still bear the brunt of huge electricity cost increases and less power system reliability," he said in a statement.

Murray Energy, which has 7,000 employees, led an industry suit against the proposed rule that was tossed out as premature in June. The company is also pursuing a separate lawsuit alleging EPA has not properly considered lost coal mining jobs in its regulations.

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Clean Power Plan Changes Appease Many Concerns, But Coal Lobby Promises a Fight

Aug 3, 2015 | E&E - Energywire

By Emily Holden, Rod Kuckro and Peter Behr

Far-reaching rules that form the backbone of the U.S. commitment to cutting global greenhouse gas emissions do much to "help ease the pain" to states and the energy industry, as one state regulator described.
The Obama administration's final Clean Power Plan, which the White House will officially announce this afternoon, includes a slew of changes responding to constructive criticism and aiming to bolster U.S. EPA's legal defense to imminent challenges. The rule gives states two extra years to submit plans and start making cuts, eases interim goals into a "glide path" and contains grid reliability assurance mechanisms (Greenwire, Aug. 2).
It also provides states with a model plan and with "trade-ready" elements for swapping compliance credits with one another. The regulation adopts a uniform emissions rate and assigns states' goals based on their energy mixes, which will even out disparate state targets, EPA chief Gina McCarthy said on a call with reporters yesterday afternoon.
The rule will incentivize early action to build renewable energy and implement user-side energy efficiency programs in low-income communities. The aim is to shift toward renewables rather than encourage an early surge toward natural gas as a means of replacing coal power, McCarthy said.
The Clean Power Plan will no longer count under-construction nuclear plants in state targets, but it will give states credit for them and for increases in existing nuclear generation. Standards for new coal-fired power plants will require carbon capture and storage, but at a lower rate than previously proposed, McCarthy said. A senior administration official later clarified that new power plants that primarily run on coal could operate without deploying CCS. Requirements can be met with a range of technological options, including co-firing and, potentially, integrated gasification combined-cycle technologies to turn coal into gas, the official said.
The organization of state air administrators who will write compliance plans "gives 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.
Rhea Suh, president of the Natural Resources Defense Council, called the Clean Power Plan "a simple idea that will change the world." She pledged NRDC would "fight with everything we've got to ensure the plan moves forward and provides the necessary momentum for unified global action."
Power plant carbon emissions under the rule would fall 32 percent below 2005 levels by 2030 -- 2 percentage points more than originally proposed.
"When the United States leads, other nations follow," McCarthy said. "Since we proposed the rule last year, the U.S. has made joint announcements with China and Brazil where each country made major new commitments to cut carbon pollution. Since three of the world's largest economies have stepped up, we're confident other nations will follow, and the world will reach a climate agreement in Paris later this year."Utility industry awaits plan details
"Left in place are targets for replacing affordable energy with costly energy," the National Mining Association said. "This is not a course correction."
Edison Electric Institute President Tom Kuhn said the organization of investor-owned utilities needed to review the final guidelines in their entirety, but its "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," Kuhn said.
The leader of the National Rural Electric Cooperative Association (NRECA), Jo Ann Emerson, said her group appreciates EPA's "efforts intended to help offset the financial burden of rising electricity prices and jobs lost due to prematurely shuttered power plants." But she said the rule "still appears to reflect the fundamental flaws of the original proposal."
Kirk Johnson, NRECA's senior vice president for government relations, said that based on what is known about the changes in the rule, his guess is "some co-ops will find themselves with the other utilities in their states in a slightly easier position and others will find themselves in a harder positions relative to the proposal."More time to write plans, start carbon cuts
Becker said state air regulators are "particularly pleased with the additional time provided to develop and submit plans and to begin meeting the interim compliance deadline." The rule gives states until 2018 to submit final plans and until 2022 to start making reductions.
"These changes help make good on EPA's promise to give states significant flexibility in meeting their goals," Becker said.
"States and utilities told us they needed more time than the proposal gave them -- and we listened," McCarthy said yesterday. "That's why, in the final rule, required pollution reductions don't kick in until 2022. That's a two-year extension. We want to make sure utilities have plenty of time to take carbon pollution into account with the investments they're already making and shift to a low-carbon future."
Scott Segal, an industry lobbyist with law firm Bracewell & Giuliani, said, "While the final rule reflects some concession from EPA on this point, it should be noted that the final rule remains a very difficult task over a very compressed time period."
McCarthy said to encourage states to invest early in wind and solar power, as well as energy efficiency in low-income communities, EPA is creating a voluntary matching fund program.
In a change E&E reported Saturday, EPA will no longer include energy efficiency as a building block for setting state goals, although states can still pursue programs to cut energy use as a compliance method (Greenwire, Aug. 1).
Malcolm Woolf, Advanced Energy Economy's senior vice president for policy and government affairs, said AEE is "pleased with the increased commitment to renewable energy and energy efficiency in the final rule, but disappointed that there is no credit for action taken between now and 2020, and that not all energy efficiency is eligible for credit between 2020 and 2022."
"These are missed opportunities in the short run. But in the long run, the final Clean Power Plan will drive improvement in the electric power system," Woolf said.Answers for states that 'just say no'
EPA will also provide a model plan and propose a federal implementation standard for states that do not write their own blueprints. A handful have already vowed they will refuse to comply, and more may join them, depending on the structure of the federal plan.
Bob Perciasepe, president of the Center for Climate and Energy Solutions and former EPA deputy administrator, said he knows from conversations with state leaders and utility CEOs that "even those who may openly oppose the rules are thinking hard about how to meet them."
"Many are very interested in the types of incentive and market-based approaches EPA is encouraging," he said. "It behooves every state to sit down with stakeholders -- mayors, consumers, businesses -- and craft a plan that fits it best. States should take advantage of the opportunity to innovate and make their economies stronger and more sustainable."
In another big shift that could please some states and upset others, the rule will apply a uniform carbon emissions rate for plants.
"Using uniform national carbon pollution rates for similar types of power plants, we've set individual state goals based on where each state currently gets its energy," McCarthy said. "In short, a plant in Ohio is now treated the same as a plant in New Mexico."
The revision will bring state goals -- which in the draft rule ranged from emissions rate reductions of 11 percent to 72 percent -- closer together. That could require much more of some states and anger those that had less stringent goals under the proposed rule.Boosting renewables, downplaying natural gas
While environmentalists and renewable energy advocates were sanguine about the changes, the natural gas industry balked at the White House's objective of minimizing the switch from coal to gas.
"The White House appears to be making a shift that ignores the market reality that natural gas stands ready today to cost-effectively meet our environmental and energy challenges," said Dan Whitten, spokesman for America's Natural Gas Alliance. "An accelerating move to natural gas is critical to keeping the lights on, heating and cooling our homes, and fueling growth in domestic manufacturing, all while reducing air emissions."
Whitten added that the gas industry would work with states now to ensure their plans "help them make the transition to a cleaner energy future, powered by greater use of natural gas."
"The news today that EPA will shift the emphasis of the rule away from natural gas toward renewables would make it an even more costly and unrealistic rule," added the American Energy Alliance.
McCarthy said that after the rules are implemented, coal power is projected to represent 27 percent of generation capacity in 2030 -- down from an expected average of 36 percent in 2015.
The U.S. Energy Information Administration said that without the draft Clean Power Plan, coal power would make up 30 percent of generation capacity through 2040.
The coal industry, which stands to lose market share under assumptions for both the draft and the final rule, said the final version's tougher targets "mean the calculation for governors does not change," according to Luke Popovich, spokesman for the National Mining Association.
States should still refuse to comply with the rule, he said, because the White House's effort to boost renewables "spells higher costs from transmission infrastructure and monthly utility bills."
"Are governors now willing to stick their consumers with the bill so this president can have his 'legacy'?" Popovich said.
"The nation's governors now have a clear choice to make about their course: Accept this flawed plan and put their citizens at risk, or reject it and challenge EPA's authority and competence to manage their state's energy economy from Washington," said NMA President Hal Quinn.
The coal trade group filed a request yesterday with EPA to stay the rule while the courts weigh in on the rule, and it plans to ask the courts for a judicial stay in the likely event that fails. It is unclear how later deadlines for state implementation plan submission and compliance might hurt opponents' chances of securing a stay, for which they must prove that the rule will do irreparable harm in the near term.
"Rest assured we won't stop fighting until this illegal and economically destructive rule is overturned by the courts," added Mike Duncan, president and CEO of the American Coalition for Clean Coal Electricity.Nuclear power gets relief
The final plan gives the nuclear power industry two of the changes it pressed hard for, one of them affecting the treatment of the five nuclear units currently under construction in Georgia, South Carolina and Tennessee. Their output now won't be counted until the plants are actually operating, which eases those states' compliance challenges. Increased nuclear power production from "uprates," or capacity increases at existing plants, will also count as zero-carbon sources in meeting state requirements, making such projects more valuable.
But McCarthy did not mention a third issue -- how the final plan deals with a part of the existing nuclear plant fleet that is considered "at risk" of shutting down prematurely because of competition with wind farms and natural gas generation. That may be an issue that EPA puts in the states' hands, through new carbon trading programs that are expected to emerge, some analysts predict.
Tim Echols, a Georgia electricity regulator, said the nuclear changes were the No. 1 request from Southern states, and they will "help ease the pain."Rule includes reliability assurances
Much of the criticism of the draft rule revolved around how it may hurt grid reliability.
McCarthy cited two approaches in the final plan for avoiding potential reliability issues that could threaten power deliveries. The new plan will address fears of a "cliff edge" situation where a block of coal generation in a state retires faster than utilities can replace it. "We're taking care of that through the startup change," McCarthy said, referring to the extended 2022 compliance date, "as well as a more gradual interim step-down standard."
The final plan also includes a "narrowly crafted" safety valve, she said. "This is an opportunity to deal with the situation that frankly we don't see happening, but it is an insurance policy against any situation that would threaten the energy system," she said.
The safety valve is modeled after EPA's relief mechanism in its regulation of mercury and toxic power plant emissions, she said, without offering more details. "We don't really expect that safety value to ever actually have to be used." States will also have to consider reliability in their plans.
Susan Tierney, a senior adviser with the Analysis Group, said the fine print should answer some key issues. "Will power generators or states have to go through a checklist to show EPA they really need more time?" Another question is whether states that were given more immediate breathing room on carbon reduction would have to do more later to get back on track with its goals, she said.
The Obama administration will announce the rule in a ceremony at the White House at 2 p.m. today. An EPA spokeswoman said the full rule will be available on the agency website today, and EPA will follow "normal procedures for publishing in the Federal Register, which is as soon as practicable."
"Bring a toothbrush," McCarthy told reporters. "It's kinda long."
Reporters Jean Chemnick, Elizabeth Harball and Manuel Quiñones contributed.

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Industry Giant Files for Bankruptcy Ahead of Rule's Release

Aug 3, 2015 | E&E - Greenwire

By Manuel Quiñones

The coal industry is arguably the hardest hit in the Obama administration's new rules to cut down on carbon emissions from new and existing power plants.
Today, Alpha Natural Resources Inc., one of the country's largest coal mining companies, filed for federal Chapter 11 bankruptcy protection in a move seen as emblematic of the industry's woes.
Alpha said coal is in an "unprecedented period of distress." It pointed to competition from natural gas, a global coal glut and "regulation that has pushed electric utilities to transition away from coal-fired power plants."
CEO Kevin Crutchfield said, "While a difficult decision, this voluntary Chapter 11 filing is the right strategy at the right time for the future of our business."
Crutchfield, pointing to the rounds of cuts and layoffs to stave off the company's collapse, said this morning that bankruptcy "will enable us to build on the significant steps we have taken over the past several years to restructure our debt and protect our operations."
United Mine Workers of America President Cecil Roberts said members had recently approved more resources for the union to secure worker benefits amid mounting bankruptcies.
West Virginia Gov. Earl Ray Tombin (D) said, "We recognize market forces play a role in these decisions; however, today’s announcement by Alpha also demonstrates the negative impacts the EPA's irresponsible mandates continue to have on our state."
While many utilities have expressed plans to deal with the coal plant shutdowns and work with EPA's rule, mining companies cannot survive without their customers, making them and their workers among the rule's biggest foes (Greenwire, July 31).
"Although we have faced many new regulations regarding coal production and use from the Obama administration, it is clear that these [greenhouse gas] regulations are, by far, the most damaging and economically harmful when compared to any of the Obama administration's previous actions," Bill Bissett, president of the Kentucky Coal Association, said this morning.
A new report from Kentucky's Energy and Environment Cabinet said power plants receiving one-third of the state's coal production are in the process of shutting down. EPA's mercury rule to reduce mercury emissions from plants is responsible for many retirements.
Kentucky has gone from producing more than 30 million tons of coal per quarter in 2008 to 15.7 million tons during the second quarter of this year. Mine employment has gone from more than 17,000 in 2008 to just under 10,000 today.
"Simply put, there is no greater threat than these final GHG regulations to coal-powered economies like Kentucky's economy," Bissett said, "and we must do everything possible to stop this final rule and show the growing numbers of people and organizations against this wrongheaded and ineffective regulation."
Nationwide, coal production has dropped from more than 1 billion short tons in recent years to just under that amount in 2014. Employment has dropped from around 90,000 in 2011 and 2012 to under 70,000 in June, according to the Bureau of Labor Statistics.
Earlier this year, the U.S. Energy Information Administration said the proposed Clean Power Plan rule for existing plants would boost coal plant retirements from about 40 gigawatts to about 90 GW. The new rule's regulatory impact analysis has yet to be released.
EPA Administrator Gina McCarthy said yesterday that the final rule envisions coal fueling about 27 percent of power generation by 2030. By contrast, EIA said last year that coal could remain above 30 percent of the power sector without EPA's proposed rule, not counting green group efforts to kill coal, such as fighting new plants around the country.
"We urge states to contest the rule vigorously and to defend their long-standing authority to manage their electric power systems in the way they deem most cost-effective, prudent and wise," said Deck Slone, Arch Coal Inc.'s senior vice president of strategy and public policy.
Arch and the National Mining Association not only have promised to fight the rule but are trying to convince governors to turn their back on it.
They also are calling on the administration and Congress to boost spending on technology to help make coal cleaner. Coal critics have pointed out that the cap-and-trade bill the industry opposed included such investments.
Bruce Nilles, one of the heads of the Sierra Club's Beyond Coal Campaign, said on Twitter about coal company bankruptcies: "In a sustainable world they all must go."Critics 'wrong' -- McCarthy
McCarthy said yesterday that she expected critics to rely on what she called the "special-interest playbook." She said the Clean Power Plan's critics are the same people who opposed previous agency efforts at protecting the environment.
"They are wrong," McCarthy told reporters during a conference call.
Asked about the rule's impact on the coal industry, McCarthy and top presidential aide Brian Deese said the standards aren't about fuels but overall emissions reductions.
"It's flexible, customizable, puts states in the driver's seat," McCarthy said about the Clean Power Plan. Deese said, "As EPA sets standards, states have flexibility to develop plans that work for them."
Asked about the rule lowering its reliance on natural gas as a so-called bridge fuel, McCarthy said, "I don't want you to get the impression that we are putting our finger on any particular type of energy generation."
When it comes to the separate rule to reduce carbon emissions from new power plants, which is also set to be released today, McCarthy said the administration left the door open to new coal.
"This rule is taking advantage of cost-effective reductions that are available, using current technology, and that's what we're supposed to do," she said.
Whether EPA has kept or softened its proposed carbon capture requirement for all new coal plants remains uncertain. McCarthy said carbon capture and storage (CCS) would be required but at a lower capture rate (Greenwire, Aug. 2).
"We think that remains reasonable as well as available for new coal units moving forward," she said. Coal interests had blasted EPA for requiring a technology that has yet to become commercially available.
An administration source then said companies could build a new coal plant without CCS but using technology like coal gasification or using more than one fuel.
Either way, EPA and other forecasters had predicted that utilities would build few -- if any -- new coal-fired power plants in the coming years.
Alpha's Crutchfield said the coal sector will be smaller but will not disappear. Many power plants will remain, and coal will continue being needed for steel production.
He said, "There is no doubt more uncertainty ahead, but also transformational opportunity in the coal sector for those who make proactive, strategic decisions."

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EPA Outlines Further Details On Final GHG Rule For Existing Power Plants

Aug 3, 2015 | InsideEPA

EPA has released a series of fact sheets outlining further details about its final greenhouse gas (GHG) standards for existing power plants, including estimates that show the rule could have up to $34 billion in health benefits and specifics on two approaches for how states can craft their GHG reduction plans for complying with the regulation.
The existing source performance standards (ESPS), part of a utility GHG reduction strategy known as the Clean Power Plan, aim 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. EPA is also finalizing a GHG rule for newly constructed power plants as part of the plan.
As part of the roll-out of the regulations, EPA unveiled several fact sheets on the ESPS including estimates that climate benefits from the existing source rule are pegged at $20 million (slightly higher than the proposal) and health-related benefits are $14-$34 billion (significantly lower than the proposal's $14-$40 billion).
It was unclear at press time why the new health benefits are lower, even while the rule's overall targets are stronger, and EPA had not yet released its regulatory impact analysis for the rule that could potentially give an explanation.
A separate fact sheet on legal issues points out that the final ESPS will go beyond issuing state targets in a rate-based form of pounds of carbon dioxide (CO2) per megawatt hour.
In addition, the rule will set “a mass-based state goal measured in short tons of CO2,” as well as “a mass-based state goal with a new source complement measured in total short tons of CO2.”
EPA has earlier issued “examples” for the two mass-based options, though the final version appears to offer the numbers as default limits, a move that emissions trading advocates had pushed for.
An overall ESPS fact sheet notes that the agency also is offering two types of state compliance plans. An “emission standards plan” would set source-specific requirements for each power plant in the state.
A “state measures plan” would include a “mix of measures” such as renewable standards and efficiency programs that would not be included as federally enforceable components of a plan.
States can also include federally enforceable limits on power plants, and would be required to include federally enforceable backstop measures if the other measures fall short.
EPA also adds that states can use its proposed federal implementation plan -- which is also being unveiled this afternoon -- “for their backstop.” Officials have said the federal plan likely will create a framework for power plants in states to opt into emissions trading programs.
The agency also released another fact sheet with a slew of numerical details on the ESPS, such as the rule's GHG cuts are equal to the annual emissions of 166 million cars, as well as reductions in sulfur dioxide of 318,000 tons and cuts to nitrogen dioxide of 282,000 tons.

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Rose Garden Event to Unveil Final Carbon Standards Reflective of Industry, State Feedback

Aug 3, 2015 | E&E - Energywire

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."
AdvertisementContain 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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The Long, Hazy and Winding Political Path that Brought the Obama Admin to the Clean Power Plan

Aug 3, 2015 | E&E - Climatewire

By Evan Lehmann and Christa Marshall

Climate change was riding an updraft in 2008. More Americans than ever before -- or since -- saw it as a troubling issue. And President-elect Obama had just pledged in his campaign to do something about it. So did his Republican opponent.
It went from a salesman's pitch to a presidential commitment two weeks after the election. Obama vowed to rewrite the nation's energy profile, eliminating all but 20 percent of existing emissions within 40 years. It was "a new chapter" for climate change, he said in a video six weeks before taking the oath.
"Now is the time to confront this challenge once and for all," Obama said then.
Nearly seven years later, Obama is ready to partially fulfill that promise. When his administration releases the final rules regulating greenhouse gas emissions at electric power plants today, it will mark the enactment of the nation's most ambitious climate program in history. It's supposed to cut the sector's greenhouse gas emissions by 32 percent.
The start of a long journey: President-elect Obama on Nov. 18, 2008, as he announced his first climate change policy. He described it as a "federal cap-and-trade" program "with strong annual targets." Photo courtesy of Change.org
From a legal standpoint, the path began in 2007. The Supreme Court sided with Massachusetts and 11 other states who sued U.S. EPA for failing to regulate greenhouse gas emissions from vehicles. The agency established new carbon standards on cars; it also expanded the decision to include sources like power plants.
Since then, efforts to curtail emissions have passed through failed attempts to replace regulations with landmark climate legislation. Then, there was a two-year phase in which many federal officials avoided talking about rising temperatures. Then, in 2013, there was a sudden rebirth of the issue when Obama announced his intention to finish EPA climate regulations in 2015.
Along the way, Democrats and environmental organizations have gone through a forest of question marks. Is a legislative price on carbon, like a tax or a cap-and-trade market, still optimal? If so, should EPA regulations be traded away to gain the support of Republicans for a program that, in theory, might reduce more emissions? Or is that politically impossible, and is the nation now bound to a regulatory path for, say, the next 15 years?
"I think we're further away from carbon pricing than we have been in the last 25 years," said Paul Bledsoe, a climate adviser during the Clinton administration. As for trading regulations away in an effort to enact a carbon tax, he said, "That's never going to happen."
But many Democratic lawmakers say that regulation alone isn't enough. Presidential hopeful Sen. Bernie Sanders (I-Vt.) points to a carbon tax as the best outcome, and Democratic front-runner Hillary Clinton supports legislation to increase the use of renewable energy.
In that way, maybe the regulations could be a bargaining chip.
"Once Republicans ... realize it's here to stay, maybe they'll also talk about other approaches to dealing with this," said Rep. Chris Van Hollen (D-Md.), who's proposed a bill to price carbon.Rhetoric about suicide and murder
When Obama assumed office in 2009, Democrats in Congress began scrambling to take advantage of his momentum on climate change.
The House zipped through a series of hearings early that year, touching on the key elements of a national climate plan: the role of efficiency, the "future of coal," how offsets would work, adaptation and renewable energy. Altogether, at least nine hearings on climate were held in the Energy and Commerce Committee within the first three months of the president's term.
Then, in April, the hike became a sprint. Four hearings in four days. Cabinet secretaries and agency administrators testified with industry executives and environmental leaders about a new cap-and-trade bill, the "American Clean Energy and Security Act" (for short, it was called the Waxman-Markey bill). A key argument by Democrats was that it would supersede EPA's future regulations made possible by the Supreme Court. Preventing the existence of those rules was supposed to be a carrot for Republicans.
Sixty-seven witnesses appeared all told. The event coincided with Earth Day, and then raced past it. The anticipation of what it might do was sky high. Rep. Edward Markey (D-Mass.), who's now a senator, ended the first day of speeches with this prophecy: Tomorrow "we begin to write history."
Within minutes, the bill was under attack. A week earlier, EPA had taken one of its first steps toward regulating carbon by announcing its proposed endangerment finding: Greenhouse gases harm people's health, it said. But some Republicans refused to be intimidated. Embarking on a climate bill was like committing suicide to prevent murder by regulation, one lawmaker said.
"We are again faced with a choice," said Rep. Marsha Blackburn (R-Tenn.) during the initial hearing on Waxman-Markey. "We can acquiesce to bad regulation that will have certain and disastrous impacts on our economy, or we can legislate an even more harmful system. It is as though when faced with a gun to our head, Congress is going to take it and shoot ourselves in the chest."
That was just the beginning. The hearings focused on a discussion draft of the bill. It was unusually long at 648 pages. It would soon be twice that.A turn toward regulating carbon
The prospects of legislation might have been growing. But so were quieter movements toward regulation. Months earlier, a federal court told the government that it should be considering the benefits of lower emissions when developing fuel economy standards for cars. Until then, the George W. Bush administration considered that the release of carbon dioxide from cars had no economic value. In other words, the social cost of carbon was $0.
The 9th U.S. Circuit Court of Appeals ended that.
"The value of carbon emissions reduction is certainly not zero," Judge Betty Fletcher said in the 2008 opinion in Center for Biological Diversity v. the National Highway Traffic Safety Administration.
Within months, newly arriving officials in the Obama administration would see the decision as a justification for establishing a social cost of carbon. For the first time, it would be used consisently in rulemaking across the government. Some saw it as a prerequisite for future carbon rules. Others say it gave the complicated process of estimating a dollar figure related to carbon damage a stamp of credibility.
San Juan Generating Station in New Mexico, one of many coal-fired plants likely to be affected by the Obama administration's Clean Power Plan rule. It serves 1.8 million customers. Photo courtesy of Wikipedia.
"The court case is a big turning point," said Billy Pizer, a former Obama administration official who worked on the estimate in 2009.
Meanwhile, the House was hurtling toward a vote on cap and trade. The bill included language that would have prevented this week's release of EPA's Clean Power Plan. But that didn't seem to persuade Republicans.
The vote was called at 7:17 p.m. on June 26, 2009. Eight Republicans sided with 211 Democrats; it passed by just three votes at a time when Democrats outnumbered the GOP by more than 75 members. Among those voting "no" were 44 Democrats, mostly from conservative districts and energy-rich regions.
The outcome was celebrated as history-making by Democrats and environmental organizations. But its narrow margin of victory was also encouraging to Republicans.
"That was pretty much dead in its tracks when we saw how close that was," Rep. Fred Upton (R-Mich.), chairman of the Energy and Commerce Committee, said last week. "And frankly it was a turning point in the prospects of the House flipping back to the Republican side."In the Senate, a path strewn with doubts
The Senate's struggle began in October 2009 when Sens. John Kerry (D-Mass.) and Lindsey Graham (R-S.C.) published an op-ed in The New York Times challenging their colleagues to pass climate legislation. Their argument was based on national security, job creation and environmental protection.
But it also contained a threat: EPA regulation.
Anyone in the Senate who tries to kill the bill will one day "come running to Congress in a panic" when the regulations are enacted, to secure the kinds of "incentives and investments we can pass today," they wrote. In other words, the regulations were an expensive nightmare; the bill, meanwhile, could raise billions in revenue.
Two months later, the duo had turned into a trio, with the addition of Sen. Joe Lieberman (I-Conn.). They sent Obama a letter containing a "Framework for Climate Action and Energy Independence" in the days before he attended the United Nations' climate negotiations in Copenhagen, Denmark. They said "support is building."
It would be short-lived. By the time they introduced the "American Power Act" in May 2010, Graham had abandoned the effort after failing to get a single Republican to join him. Within weeks, the plan was dead.
One official with the utility industry, which supported the effort, recalls a pivotal moment. Rahm Emanuel, Obama's chief of staff, told the official in a telephone call that the White House was shifting its attention to the Senate's legislative debate around the Affordable Care Act, or Obamacare.
"We were disappointed," the official said. "It was the Senate that couldn't get it done. No one credits that it was Rahm Emanuel who picked up the phone, screaming at everybody, saying, 'We're moving to health care; we're not doing climate.'"
Other obstacles now emerged on the path. Among them were moderate Democrats.
Former Sen. Byron Dorgan (D-N.D.) was a proponent of moving separate energy legislation that passed the Energy and Natural Resources Committee in 2009. It would have established a federal renewable electricity standard and improved transmission siting.
"We would have had policies in place since 2010 that would have been very helpful in addressing climate change. In the end, we got nothing," he said in an interview.
Nowadays, some of his former Senate colleagues say it was a "mistake" not to move an energy bill that could have reduced emissions. But he laments the failure of a carbon price for a key reason: the cash.
Congressional action would have been preferable to EPA rules because it could have funded carbon capture and sequestration, he said.
"That research money has not now been available, and as a result, the coal industry ... it's very hard to see how they are going to have a very bright future," Dorgan said.Radio silence interrupted by criticism
The midterm elections in the fall of 2010 marked an end to efforts, temporarily, at establishing climate policies. Republicans took control of the House by winning 63 Democratic seats. In the Senate, Democrats lost their imposing majority of 59 seats, returning to Washington, D.C., with 53 members.
Winter 2011 began a two-year period of near-silence on climate change.
As Obama moved into campaign mode later that year, the Keystone XL pipeline became a persistent White House thorn. The president sometimes came under fire from his environmental base for not addressing climate change forcefully.
Former Vice President Al Gore, for instance, sharply criticized Obama in a June 2011Rolling Stone editorial for not pushing climate legislation harder in the Senate and defending against congressional budget cuts.
"President Obama has never presented to the American people the magnitude of the climate crisis. He has simply not made the case for action," Gore said, echoing a common green sentiment at the time.
In the 2011 State of the Union, Obama didn't mention climate change at all and cited it in a passing sentence in his 2012 address, tied with a push for a clean-energy standard. It would not become the main focus of any of his speeches until 2013, according to White House transcripts. "Energy security" became a more common phrase, as did "clean energy," but more for its job-creating and oil-reducing potential than lowering emissions.
Which was not to say that the issue never came up with Obama then -- it was just more of a prairie dog popping out of hiding in front of receptive audiences, buried amid other topics.
"As new threats spread across borders and oceans, we must dismantle terrorist networks and stop the spread of nuclear weapons, confront climate change, and combat famine and disease," Obama told the British Parliament in May 2011.With rules in place, will legislation follow?
That all changed in June 2013. Obama resurrected the issue in a speech at Georgetown University announcing his Climate Action Plan. Its cornerstone was the same EPA regulations that he and congressional Democrats had warned Republicans against allowing to be enacted, favoring legislation instead.
"It's not like this snuck up on people," said Nat Keohane, who worked as a special assistant to the president and is now a vice president with the Environmental Defense Fund.
But the top-down nature of Obama's announcement also makes the Clean Power Plan somewhat of an anomaly of EPA history.
"The administration announced to the world 30 percent from 2005 levels by 2030. And then instructed EPA to come up with a rule that met that goal. That is not the way these things are typically developed," said Thomas Lorenzen, a former Justice Department environmental attorney now at the firm Crowell & Moring LLP.
It's one of the many ways this rule differs from all others, he noted, in addition to the long debate before Massachusetts v. EPA about whether carbon dioxide could be regulated as a pollutant at all. Then there is the innovative use of Section 111(d) of the Clean Air Act, which traditionally involved lowering emissions on a facility via an easy technology fix, not trying to address the entire fuel mix of a whole state.
"The background of this rule is really, 'How far is EPA willing to depart from what it has traditionally done ... in an effort to tackle what is a very big problem?'" he asked.
To others, EPA's rules are an important tool to help achieve the president's goal of reducing emissions by up to 28 percent in 2025. But many believe it's not enough. Legislation that puts a price on carbon will also be needed to avoid longer-term effects of climbing temperatures, Keohane said.
"We need both," he said.
Unlike many other observers, Keohane believes that climate legislation could be possible within five years because of electoral pressures from younger voters and a shifting willingness among Republicans to act on climate change.

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Obama Delivers on Promise of Action on Climate Change

Aug 3, 2015 | E&E - Greenwire

By Jean Chemnick

President Obama vowed in his second inauguration address that he would build a legacy on global warming.
"We will respond," he said, "to the threat of climate change, knowing that the failure to do so would betray our children and future generations."
The following June, the president used a sweltering day at Georgetown University to lay out a broad plan for using existing legal authorities to control emissions of heat-trapping gases despite Congress' refusal to act.
"This is a challenge that does not pause for partisan gridlock," he declared. "It demands our attention now."
Today, Obama will fulfill his promise with the release of U.S. EPA's Clean Power Plan.
The rule for curbing the power sector's greenhouse gas emissions is the most significant climate action ever taken in the United States. And it has already drawn more partisan fire than any of the administration's past regulatory actions.
Obama, who will unveil the plan this afternoon in the East Room of the White House, aims to use that rule to help deliver one last piece of his climate promise -- the international accord on carbon emissions at U.N. talks in Paris this December. The president has worked to pave the way for it in bilateral and multilateral discussions with world leaders and organizations ranging from Chinese President Xi Jinping last year to the African Union last week. EPA's power plant rules form the core of what U.S. negotiators will take to Paris.
As news trickled out last week and over the weekend about the final rules for new, modified and existing power plants, environmentalists cheered. The Clean Power Plan would have some later deadlines than were included in the draft, but with tighter targets and more incentives for renewables and efficiency, they were told. Future coal plants might be held to a slightly laxer emissions rate, but not one so lax they could meet it without using co-firing or pollution control technologies, the agency said (Greenwire, Aug. 2).
Absent congressional action to overturn the rules or an adverse court ruling, Obama's new power plant program will force the sector to make a permanent shift away from the fossil fuels of its past.
"With this historic announcement, the United States is making clear that it is no longer acceptable to put unlimited amounts of climate pollution into our air," Environmental Defense Fund President Fred Krupp said in a statement. "The move toward a world safe from climate change is beginning in earnest."Rough ride
But environmentalists have not always been as pleased with Obama's performance on the flagship environmental issue as they are today. His second-term inaugural address drew as much attention as it did in part because it came after an election in which the president rarely uttered the words "climate change."
The same was true in the two years that preceded that election, years that followed the Democrat's "shellacking" in the 2010 midterm elections that turned control of the House over to Republicans, putting hopes for a comprehensive climate change bill on hold indefinitely. The president skirted climate change in his State of the Union addresses in 2011 and 2012 in favor of vague invitations for bipartisan cooperation on "all of the above" energy policy.
And even as efforts to enact cap and trade were underway at the Capitol in 2009 and 2010, Democrats who were involved have often complained that the White House largely wasn't. The president expressed support, they say, but made it clear that priorities like economic recovery and health care were higher on his list. The House under then-Speaker Nancy Pelosi (D-Calif.) passed its version of the bill sponsored by then-Reps. Henry Waxman (D-Calif.)and Ed Markey (D-Mass.) in 2009, but efforts to move a companion foundered in the Senate, and many of the red state House Democrats who backed Waxman-Markey attributed their 2010 losses at least in part to their votes.
Chris Miller, who was an energy aide for then-Majority Leader Harry Reid (D-Nev.), said the administration wasn't yet up to speed when congressional Democrats were working on cap and trade. It was still engaged in filling administration posts and grappling with the economic downturn, he said.
"They didn't have a huge and direct role in either the contents or the strategy, really," said Miller, who still works on these issues at Washington, D.C., consulting firm AJW. "They were generally supportive, but it probably wasn't their highest priority at that point in time."
But the president took Waxman-Markey with him when he attended the U.N. climate talks in Copenhagen, Denmark, in December 2009. While the talks failed to deliver the looked-for deal on emissions, they did create a framework for financial commitments from major economies to help poor nations adapt to climate change. And when the House legislation faltered, Miller said, Obama knew he had to find a replacement policy that would deliver the reductions that he had promised the world -- a pledge of 17 percent below 2005 levels by 2020 that has since been superseded by his promise of emission cuts of 26 to 28 percent by 2025.
"So they began the long, slow process to figure out what they could do," said Miller, which eventually led to the Climate Action Plan that summer day at Georgetown, and in turn to the Clean Power Plan, which he called a "turning point."
The last two years since the White House laid out its plan, Miller said, Democratic lawmakers have been more confident that the administration is committed to moving the ball on climate change before it leaves. Engagement with allies on Capitol Hill has also "hit its stride," he said.
"For those members, [the Climate Action Plan] washed away some of the residue of the failure of the administration to engage more proactively prior to that on Waxman-Markey," he said. "I think they're on a much better footing than they were, but it's been a gradual process."Perseverance
But Carol Browner, who was the White House's climate "czar" during Capitol Hill's cap-and-trade wars, said Obama made global warming a priority from day one.
When it came to the Capitol Hill fight for cap and trade, Browner said, "We tried."
"I was up there day in and day out," she said. "We had the president meeting with people. We worked hard with Pelosi to get the votes."
In the end, the political realities in the Senate meant Reid elected not to bring the proposal by then-Sens. John Kerry (D-Mass.) and Joe Lieberman (I-Conn.) to the floor, she said.
"It was up to the Congress to decide the schedule that they operated on, and they chose to do health care first," she said.
Obama showed his strong early commitment through the first executive order he signed, which directed EPA and the Transportation Department to work together for the first time on greenhouse gas rules to rein in vehicle tailpipe emissions -- rules to improve the efficiency of American cars and trucks.
And Obama again showed the value he placed on addressing climate change, she said, when he insisted that economic stimulus legislation in 2009 include billions of dollars for renewable energy, efficiency and energy infrastructure.
"That was us," Browner said.
Even before Obama's first inauguration, Browner recalled, members of his transition team huddled in Chicago to plan out the package they would present to Congress. In attendance were future National Economic Council Director Larry Summers and Peter Orszag, who would become director of the White House Office of Management and the Budget.
The date was Dec. 16, 2008, which Browner said she recalls because it was her birthday and Orszag's. The president had tasked them with getting the most for green energy that they possibly could out of the stimulus package. It would ultimately include $90 billion on energy -- the largest single investment by the federal government in that sector.
"He was moving on climate change before Congress even held a hearing on climate change," Browner said.
Obama's perseverance on the issue shows his deep devotion to it, she said.
"It would have been really easy to give up and say, 'I went to Congress; they didn't want to do it,'" she said. But instead, Obama found alternatives, including the Clean Power Plan.
And while the Clean Power Plan and the other two rules are important components of what Obama will ultimately leave in place when he exits the White House in January 2017, they are part of his legacy, not his entire legacy, she said. They build on the tailpipe emissions rule and the stimulus and other components that date back to his early years in office -- actions that Browner was personally involved in.
"Each of them independently is hugely important. And taken together, they are more than just the sum of their parts," she said.'They're going to fight for this thing'
Peter Ogden, a senior fellow at the Center for American Progress who spent time in the State Department early in the Obama presidency, said the timing of today's rules shows how cognizant Obama is of the role the United States plays in spurring international progress on warming.
The rules are "the final major piece in that domestic puzzle" on climate change, he said. It will arm the administration with accomplishments it can now take to Paris to help broker a global deal that observers hope will one day yield enough reductions to help stave off the worst effects of warming.
"Getting the Clean Power Plan rule in place before Paris is something that I think they'll really be able to use as evidence of the president's determination and of America's determination," Ogden said. For years now, Obama has raised climate change in meetings with his foreign counterparts, even on other topics.
"No foreign leader now in the run-up to Paris comes to meet with the president without being prepared to talk about climate change," he said. "And what really gives the United States the ability to do that and to have that conversation is our domestic action and leadership."
The administration says that its power plant rules will endure the legal challenges and legislative assaults that will inevitably follow. Murray Energy Corp., which launched a pre-emptive challenge to the proposed Clean Power Plan, announced today that it will reprise that effort now that the rule is final (see related story).
And a handful of state governors have already said they will opt not to implement the rule, arguing that the federal plan EPA will release today will not ultimately be able to achieve the scope of reductions -- and incur the costs -- that a state plan could.
But proponents of the rule say the administration will not turn its full attention to defending the rules it has put in place, with the goal of completing judicial review before Obama leaves office. The next administration will then have difficulty rolling them back, they say, without performing a full rulemaking and fending off court challenges in its turn.
EPA's fiscal 2016 budget request to Congress included an increased ask for lawyers to help defend the agency's rules, and the White House has communicated to Congress that it will not accept any spending bills that seek to roll back the carbon rules -- even temporarily.
"I think that certainly they are going to do everything in their power, as they have made clear, to make sure that their rule is implemented," Ogden said. "They've already made clear that this is not something that they're just putting out there to stand alone -- that they're going to fight for this thing."

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Obama Reaches for Green Legacy, But Will History Books Agree?

Aug 3, 2015 | National Journal

By Rebecca Nelson and Ben Geman

Riding in his fortress of a Cadillac that gets just 3.7 miles to the gallon, President Obama knew it was time to go big on climate change.
After his reelection in 2012, Obama rode in "The Beast" with top climate aide Heather Zichal coming back from a meeting at the Energy Department. They were talking casually about an environmental strategy for his second term, when she found herself promoting the idea that Obama "throw everything he can" into a climate plan to guide his next four years.
"His immediate reaction wasn't, 'Well, what do you think the politics of that are, or wouldn't it be hard to do?' There was no question," Zichal recalled. "It was just, 'That's a great idea. But we have to go big, and we have to go bold.'"
Monday's official announcement of sweeping Environmental Protection Agency rules that impose a first-ever mandate to cut carbon pollution from the nation's coal-fired power plants, by far the largest source of unchecked emissions, is the most important result.
This is second-term Obama. A president who routinely reminds people that he never has to run for office again using the power of the executive branch to sidestep an opposition Congress to accomplish legacy-defining agenda items. If Congress won't act on energy and immigration, the White House will.
But despite going far beyond his predecessors on global warming, Obama's green legacy will face question marks for years. Executive actions such as new EPA regulations lack the certainty of the bedrock environmental statutes Congress passed in the late 1960s and early 1970s.
The particulars of how he's using the Clean Air Act to demand cuts in power-plant pollution are almost certain to wind up before the Supreme Court. And GOP White House contenders, if elected, would seek to dismantle or hamstring the rules, which have already emerged as a top target of congressional Republicans.
Obama's green legacy is not yet set. He has yet to announce a decision on whether or not to approve the Keystone XL pipeline, which environmentalists bitterly oppose, believing Keystone will enable a surge in carbon-spewing oil-sands production in Canada. And greens are still unhappy he is allowing Shell to drill for oil off the Alaskan coast in the Arctic Ocean.
And another legacy item awaits: The United States is heavily involved in negotiations aimed at reaching a major global climate accord at a make-or-break United Nations summit in Paris late this year.
"He really sees this as just an issue that just can't be ducked," said Dan Utech, a White House adviser on energy and climate. "For both today, but also for the sake of his daughters, their kids, and the kids and grandkids of all Americans."
Obama has talked about how, as an undergraduate in Los Angeles, the pollution was so bad that "folks couldn't go outside." And he has blamed rising temperatures for his daughter Malia's asthma attacks when she was 4.
Of course, the sweeping EPA rules weren't the first choice for the administration. An extensive climate-change bill to set up a national cap-and-trade system passed the House in mid-2009 but collapsed in the Senate the next year.
Presidents are often remembered for sweeping actions and bills they signed, like the civil rights and anti-poverty bills that President Lyndon Johnson pushed through Congress. Carol Browner, Obama's former climate-policy director, said Obama doesn't get the credit he deserves for his step-by-step approach on climate change.
"People don't see the arc of it. They see each of these acts as isolated. But when you put them together, they're actually more than the sum of the parts," Browner said. "It all comes together to give you a magnitude of reduction."
The stimulus Obama ultimately signed in 2009 would steer some $90 billion into low-carbon energy initiatives and technologies. Another big win on climate in his first term: rules finalized in 2012 that boost gas mileage standards for cars and light trucks to 54.5 miles per gallon by 2025, a mandate that will make the United States auto fleet much greener.
William Reilly, who led EPA under President George H.W. Bush, strongly praised Obama for his steps to address global warming, especially in the face of strong opposition from congressional Republicans. Reilly credits Obama for tackling a topic that had been "suspended as a presidential priority for the previous eight years" under President George W. Bush.
Reilly cited the big boost in auto mileage regulations as an example of an accomplishment that has received too little praise. "People have paid too little attention to the consequences of that," he said.
Obama's GOP foes—including the ones hoping to succeed him—say the rules will leave a legacy of a different sort: one of a president willing to impose overaggressive green rules that hurt the nation's economic competitiveness. "The rule runs over state governments, will throw countless people out of work, and increases everyone's energy prices," Jeb Bush, one of the leading GOP White House contenders, said Sunday.
The criticism from Bush and other Republicans underscores a risk for Obama: The problem with presidential directives and international diplomacy, is they can be undone by whoever succeeds him.
"The scary thing is that despite all of the great things that the president has put in motion, it is very easy for a Republican to unravel those," Zichal said. "In the same way President Obama had the existing authority to have such a tremendous regulatory agenda, a [new] president could easily have an agenda to unwind that."
In the nearer term, the White House is promising to fight hard to keep the EPA rules intact. McDonough last week vowed to "veto ideological riders" from Capitol Hill aimed at thwarting the rules. "We will not back down," he said.
Internationally, Obama struck a landmark climate deal with China late last year. China agreed to have its rising carbon emissions peak by 2030 at the latest. Obama pledged domestic reductions of 26 to 28 percent below 2005 levels by 2025. (U.S. carbon emissions are already down about 10 percent over the past decade.) White House officials hope the accord between the world's top two greenhouse-gas polluters will energize the effort to strike a global pact in Paris.
If Obama's muscular executive agenda isn't dismantled by a future president or Congress, Princeton University political historian Julian Zelizer said Obama has earned a spot on a Mount Rushmore of environmental presidents alongside people like Teddy Roosevelt, Lyndon Johnson, and Richard Nixon (who established the EPA).
"He deserves a spot in that he has used executive power to deal with this, he has now talked about it, he has come back to a theme that he kind of left behind in 2008," Zelizer said.
Zelizer believes, however, that Obama's heavy focus on climate is too late to make it among the things he's most remembered for. "He made a decision in terms of dealing with what should come first and where he was going to burn his political capital—on health care, on stimulus," he said. "Part of that was pragmatic, part of it was a sense of crisis, but he didn't really tackle climate change until now, and it's late in his presidency. In some ways, in terms of shaping what he's about and the themes that he will be remembered for, I think it is other issues."
But Obama, his allies say, has always been engaged on green energy and climate change from the beginning.
Just a month after his election, on December 16, 2008, the soon-to-be president met with his transition team in Chicago to talk about how to handle the fiscal crisis. Discussing what would be included in the massive economic stimulus, he told his advisers, including Browner, "I want a big commitment to green energy. A big investment."
"He's been consistent from the beginning of his presidency that he would work on this, that he could use the tools available to him," Browner said. "Climate change is a complex issue. There's not a silver bullet."
On the policy debates, he leaves the particulars up to trusted staffers.
"He is definitely engaged in the substance decisions, but he's not going to argue in the weeds on a very detail specific component of the 111(d) regulation," Zichal said, referring to the new EPA power-plant regulations. "He's absolutely committed to making sure that all these regulatory actions line up with his broader vision and goals. And then he largely empowers the people around him that he's put so much trust in and known for years to help deliver the goals."
It's a starkly different approach than the heavily bureaucratic process Browner faced as EPA head in the Clinton administration. If she wanted to regulate ozone, she recalls, "I'd have a big debate about whether I should even regulate it. I'd have to argue about the science; I'd argue about the law. And then they'd say, 'OK, yes, you should regulate it.' Then I'd have a second debate maybe a year later, about how much I should regulate it."
With Obama, she said, administrators have much more freedom to get things done. "He puts his finger on the scale at the beginning and says: 'This is important. I want you to do this.'"

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EPA Updates Ozone Data in Preparation for Rulemaking

Aug 3, 2015 | E&E - Greenwire

By Amanda Peterka

U.S. EPA is releasing updated data on ozone pollution ahead of a formal rulemaking later this year guiding states on how to address interstate emissions under the 2008 ozone standard.
The data update information released in January and cover emissions in 2011 and 2017. EPA will request comment on the data in a Federal Register notice scheduled for publication tomorrow.
"These data and methods will be used to inform a rulemaking proposal that the EPA is developing and expects to release later this year to address interstate ozone transport for the 2008 ozone national ambient air quality standards," EPA says in a pre-publication version of the notice.
EPA in 2008 established the national standard for ground-level ozone at 75 parts per billion. Ozone is a key component of smoggy air that's formed when nitrogen oxides and volatile organic compounds react in the presence of sunlight.
Separately, EPA has proposed to tighten the standard to between 65 and 70 ppb after finding that the current standard is no longer adequate to protect the public against negative health effects associated with ozone pollution (Greenwire, Nov. 26, 2014).
Earlier this year, EPA set a final July 2018 deadline to meet the 75 ppb limit for areas that are considered in "moderate" nonattainment with the standard. The Clean Air Act's "good neighbor" provisions require that states address air pollution emissions that cause violations of the ozone standard across their borders.
The agency's data are meant to show which areas of the country are expected to be out of compliance with the 75 ppb limit in 2017 -- the last full year before the compliance deadline -- and how different types of sources contribute to overall concentrations.
EPA calculated 2017 ozone concentrations using computer modeling. Along with requesting comment on the data, the agency said it will take feedback on its models. EPA is also releasing 2011 baseline ozone data from across the country.
EPA applied an approach established in its Cross-State Air Pollution Rule to identify how sites are expected to be affected by cross-border air pollution in 2017. The agency is not, however, proposing a threshold yet for determining upwind states that "significantly" contribute to compliance issues in downwind states.
Last week, a federal court sent sulfur dioxide and ozone emissions budgets for several states back to EPA under the cross-state rule, finding that the agency had erred by requiring reductions in interstate pollution that were greater than necessary to meet older ambient air quality standards (Greenwire, July 28).

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Cap and Trade and Polarization

Aug 3, 2015 | The New York Times

By Paul Krugman

One of the most obvious facts about the U.S. political scene is also a fact most pundits refuse to acknowledge: the extreme polarization we now experience, the complete disappearance of any kind of political center, is not a two-sided phenomenon. Democrats haven’t moved drastically to the left — if anything they inched right for a couple of decades, and are only now shuffling slightly back toward a more robust liberalism. But Republicans have barreled off to the right.
This is, as I said, obvious — except that for those whose whole professional self-image involves standing between the supposed extremes, it’s too painful to acknowledge. So it’s worth pointing out specific policy areas where we can trace the positions of the parties explicitly.
One prime example is, of course, health reform: yes, Obamacare is identical in all important respects to Romneycare, which in turn followed a blueprint originally propounded at the Heritage Foundation.
Environmental policy may, however, be an even better case. Cap and trade began as a Republican idea — a corrective to command-and-control regulation. There was, in fact, a time when many Democrats disliked the idea of using market mechanisms to limit pollution, so this was a case of Republicans pushing policy in the direction of good economics. Bush the elder introduced cap and trade to control acid rain; John McCain even sponsored a climate change bill that relied on cap and trade.
But now Republican candidates for president are scrambling to declare themselves against the Obama administration’s proposals; Mitch McConnell is urging states to defy the feds and refuse to implement the regulations.
Leave on one side the sheer evilness of sabotaging efforts to avert environmental catastrophe in pursuit of political gain. Just note where the divide comes from.

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Texas, Oil Sector Push Back On EPA Crafting New NO2 Risk Assessment

Aug 3, 2015 | InsideEPA

By Stuart Parker

Texas and the oil sector are pushing back on the possibility that EPA might craft a new formal risk and exposure assessment (REA) of nitrogen dioxide (NO2) to inform its upcoming review of the ambient air standard for the pollutant, with the oil sector outright opposing a new REA and Texas calling for more data before EPA crafts one.
Under EPA's regular review process for its national ambient air quality standards (NAAQS) for "criteria" air pollutants, including NO2, the agency can if it wishes conduct a full REA to support a new NAAQS, or skip the step if it feels there is not sufficient new data to warrant it. EPA is now in the early stages of its review of the NO2 NAAQS, last revised in 2010 when EPA set a new one-hour standard at 100 parts per billion (ppb).
Under the Clean Air Act, EPA must review and if necessary revise its NAAQS every five years. The agency frequently misses this deadline, however, and is again behind schedule with the NO2 standard. EPA's "Rulemaking Gateway" website does not list a projected date for a proposed rule to revise the standard.
The NAAQS process typically starts with planning and seeking data, followed by an integrated science assessment (ISA) that synthesizes and evaluates the most policy-relevant science on a NAAQS.
As a next step EPA can craft a new REA that uses conclusions in the ISA to "develop quantitative characterizations of exposures and associated risks to human health or the environment associated with recent air quality conditions and with air quality estimated to just meet the current or alternative standard(s) under consideration. This assessment includes a characterization of the uncertainties associated with such estimates," says EPA's website.
Finally, EPA uses the findings in the ISA or REA, or both, to inform its policy assessment in which it outlines the scientific justification for either retaining or revising its existing NAAQS.
EPA in a May 13 Federal Register notice invited comment on the agency's planning document that considers whether the agency should conduct a new REA in support of the NAAQS review. EPA staff in the document suggested that a new REA would be warranted only if new NO2 monitoring data, such as that provided by EPA's new near-road monitoring network, show NO2 levels high enough to be of significant concern.
The agency recently closed the comment period on the notice, and in response it is facing calls to either drop any plans for a new REA or gather extensive new data before developing the study.
The American Petroleum Institute (API) in July 3 comments urges EPA not to conduct an REA. "A new analysis of air quality data will not be informative for a risk assessment," API says.
"Updated risk and exposure assessments are not warranted," the group says. More specifically, "a new quantitative risk assessment for long-term NO2 exposure and respiratory effects is neither warranted nor feasible," API argues.
API says that although EPA suggests a new air quality analysis could be conducted based on monitoring in metropolitan regions, such "regional data do not typically include small scale variations in regional air quality, such as variations near or on roadways," so such an analysis should not form the basis for a quantitative REA.
The group also contests what it says is the support of EPA's Clean Air Scientific Advisory Committee (CASAC) for a new REA. CASAC "suggested that EPA consider conducting a risk assessment based on long-term NO2 exposure studies and respiratory effects, but the available studies do not support a likely causal association," API says.
Risk Assessment
Meanwhile, the Texas Commission on Environmental Quality (TCEQ) in its July 1 comments takes a more cautious approach. "TCEQ agrees that the data on the health effects of NO2 have not substantially changed since the last REA. We also agree that there is evidence for a causal relationship between short-term NO2 exposure and respiratory effects in asthmatics. Data based on the effects of NO2 exposure measured during controlled human exposure studies can and should be used for a human health risk assessment," TCEQ says.
"On the other hand, the uncertainties in the epidemiology studies (exposure measurement error, confounding, etc), makes these data unsuitable for deriving a risk assessment," TCEQ says.
Confounding is the presence of other factors, not related to NO2 exposure, such as exposure to other pollutants or the presence of pre-existing health conditions, that influences assessments of NO2's health effects.
TCEQ, however, accepts that data from the newly-established near-road monitoring network, which EPA established to implement the 2010 NO2 NAAQS, will be useful to inform both a new air quality analysis and potentially a new REA. The state appears to have reached this conclusion in part because data from the near-road network are not showing NO2 levels significantly elevated near roads, as many has expected, and instead the highest concentrations are sometimes some distance from the roadway.
"TCEQ thinks that monitoring data obtained from the near-road NO2 monitoring network, designed to measure NO2 concentrations near heavily-trafficked roadways, will help address some of the uncertainties in previous assessments. In fact, monitoring data collected in Texas do not support a large difference in NO2 concentrations measured near roadways compared to concentrations measured farther away from those roads," TCEQ says.
Also, "TCEQ thinks an updated exposure assessment may be warranted when enough data from recently deployed NO2 near-road monitors becomes available."
TCEQ cautions, however, that a suggestion by EPA in its planning document that the agency could develop national emissions "factors" for use in computer modeling to simulate on-road and near-road NO2 levels would be flawed. Data gathered in one metropolitan area would not necessarily be representative of conditions elsewhere, TCEQ warns.

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