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ACC AM Aug 10
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(ACC Mentioned) Industry Urges EPA to Redo Nano Chemical Rule
Aug 10, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency does not have the legal authority to require chemical manufacturers and processors to report information the agency sought to obtain under a proposed data-collection rule for nanoscale chemicals, industry groups told the agency in comments on its proposed rule. -
(ACC Mentioned) Chemical Lobbyists Caught Writing Chemical Laws In Least Surprising Turn Of Events Ever
Aug 7, 2015 | The Bulletin
By Michelle Constantineau
The American Chemistry Council (ACC) is a trade association for chemical companies. It represents the likes of companies such as Exxon Mobile, Chevron, Dow Chemical, Honeywell, and dozens of others, and aids them in pooling their resources to influence national discussion surrounding toxic chemicals... -
(ACC Mentioned) Rising Stars: Emily Tipaldo
Aug 7, 2015 | Plastics News
By Jeannie Reall
Emily Tipaldo, 31, American Chemistry Council Plastics Division Title: Packaging director, Location: Washington, D.C. Birthplace: Baltimore, Social media: LinkedIn, Twitter @EmmTip Education: Bachelor’s degree, cum laude, Mary Washington College; master’s degree in international relations, with distinction, University of Westminster in London. -
EPA Research Office Nominee Downplays GOP Attacks On Agency Science
Aug 7, 2015 | InsideEPA
By Maria Hegstad
President Obama's long-pending nominee to head EPA's Office of Research & Development (ORD) is pushing back on Republican senators' attacks on agency science, defending against concerns about potential conflicts of interest and other alleged flaws in scientific data that EPA often uses as the basis for its regulatory decisions. -
EDC Criteria Debate Reignites
Aug 7, 2015 | Chemical Watch
By Emma Davies and Emma Chynoweth
Authors of the 2012 UN Environment Programme (Unep)/World Health Organization (WHO) Endocrine Disrupting Chemicals State of the Science report have published a detailed “rebuttal” of criticisms made of it. The critique, published in 2014, was funded by a number of chemical and pesticide industry organisations... -
EPA's Proposed Trichloroethylene Rule Published
Aug 10, 2015 | BNA Daily Environment Report
A proposed rule that would require companies to notify the Environmental Protection Agency 90 days before they plan to make or process trichloroethylene (TCE) for use in some consumer products was published in the Federal Register Aug. 7 (80 Fed. Reg. 47,441). The EPA released the proposed significant new use rule (SNUR) online July 30... -
PHMSA Outlines Work to Address Pipeline Response Gaps
Aug 10, 2015 | BNA Daily Environment Report
By Rachel Leven
Improvements in training, engagement and leveraging of existing resources are under way to address gaps in pipeline emergency response efforts, federal regulators told Congress. The Pipeline and Hazardous Materials Safety Administration has already moved to address these gaps through actions such as funding “train-the-trainer” pipeline... -
Activists Urge Inspections of Offshore Calif. Pipelines
Aug 10, 2015 | BNA Daily Environment Report
By Alan Kovski
An environmental advocacy group asked federal regulators to inspect all pipelines in federal and state waters off the coast of California. The Aug. 6 petition from the Center for Biological Diversity was sent to the Bureau of Safety and Environmental Enforcement and the Pipeline and Hazardous Materials Safety Administration ... -
Wastewater Spill From Colorado Gold Mine Triples In Volume: EPA
Aug 9, 2015 | Reuters
By Steve Gorman
n">Some 3 million gallons of toxic wastewater, triple previous estimates, have poured from a defunct Colorado gold mine into local streams since a team of Environmental Protection Agency workers accidentally triggered the spill last week, EPA officials said on Sunday. -
(ACC Mentioned) Not Just Skimming the Surface
Aug 9, 2015 | Scienceline
By JoAnna Klein
In 1997, Captain Charles Moore was sailing from Hawaii back to the mainland when he found himself in a sea of floating debris the size of Texas. Some of the bobbing plastic was so big that Moore could spot it from the deck of his boat, though most was much smaller. The Great Pacific Garbage Patch, as it became known... -
DOE Approves Florida LNG Export Project
Aug 7, 2015 | PoliticoPro - Whiteboard
By Elana Schor
The Department of Energy today gave the green light for Florida-based American LNG Marketing to export 8 million cubic feet of liquefied natural gas per day to nations with which the U.S. does not have a free trade agreement. The company first applied for the 20-year approval in March. The facility would ship fuel in ISO containers... -
‘Frack Now, Pay Later,’ Top Services Companies Say Amid Oil Crash
Aug 7, 2015 | Reuters
By Terry Wade and Anna Driver
Business is so tough for oilfield giants Schlumberger NV and Halliburton Co that they have come up with a new sales pitch for crude producers halting work in the worst downturn in years. It amounts to this: "frack now and pay later." The moves by the world's No. 1 and No. 2 oil services companies show how they... -
Small Tea Party Meeting Has a Special Guest: Big Oil
Aug 10, 2015 | Bloomberg Politics
By Isaac Arnsdorf
The featured speaker at the July meeting of the Northern Virginia Tea Party was Miles Morin, the state coordinator of Virginia Energy Citizens. About three dozen people came to hear him in a sports bar just outside the Capital Beltway in Falls Church. He took the stage following the Lord’s Prayer, the Pledge of Allegiance... -
Universities Must Divest from the Fossil Fuel Industry
Aug 10, 2015 | The New York Times - Opinion Pages
By Naomi Oreskes
Academic life is dedicated to the creation and dissemination of knowledge, so academics should be particularly offended by organized efforts to undermine knowledge. Yet this is exactly what the fossil fuel industry has done for more than two decades. -
Canadian Candidates Battle Over Keystone Pipeline, Climate
Aug 7, 2015 | The Hill - E2 Wire
By Devin Henry
Canadian Prime Minister Stephen Harper defended Thursday his work on approving the Keystone XL Pipeline and predicted the next United States president will support the project. “As you know, that’s a situation under the control of the United States,” Harper said of Keystone during Canada's first ... -
EPA Argues Statute Clear in Clean Power Plan Defense
Aug 10, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency in its final Clean Power Plan sought to short circuit arguments against the carbon dioxide standards as opponents of the rule press judges to quickly take up their legal challenges. The final Clean Power Plan (RIN 2060-AR33), issued Aug. 3, revises and expands the EPA's defense of it... -
Industry, States Set to Fight EPA Greenhouse Gas Rules
Aug 9, 2015 | The Wall Street Journal
By Brent Kendall and Amy Harder
Industry representatives and a group of state attorneys general are preparing to file lawsuits soon to challenge Obama administration rules requiring significant cuts in power-plant carbon emissions. The move, expected in the coming weeks, would open up a legal battle by contesting the authority... -
Pallone: Democrats Seen Supporting House Energy Bill
Aug 10, 2015 | BNA Daily Environment Report
By Ari Natter
Energy legislation being crafted in the House is likely to garner plenty of Democratic support when it reaches the House floor, Rep. Frank Pallone (D-N.J.), the top Democrat on the House Energy and Commerce Committee, said. Bipartisan support for the bill, which was approved by voice vote in the Subcommittee on Energy... -
EPA Questions Cross-State Ruling's Effect on Settlement
Aug 10, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency is seeking comment on whether a recent federal appeals court decision on state emissions budgets under the agency's cross-state air pollution rule has any effect on a proposed settlement with the Sierra Club over interstate pollution from Texas. -
Climate Fight Shifts To Courts
Aug 9, 2015 | The Hill - E2 Wire
By Timothy Cama
States, energy companies and business groups are preparing to sue the Obama administration over its new climate rule, viewing it as their bet shot at stopping the regulations while President Obama is still in office. With Congress largely powerless to stop the rule, opponents of Obama’s push say the court system is their only ...
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(ACC Mentioned) Industry Urges EPA to Redo Nano Chemical Rule
Aug 10, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency does not have the legal authority to require chemical manufacturers and processors to report information the agency sought to obtain under a proposed data-collection rule for nanoscale chemicals, industry groups told the agency in comments on its proposed rule.
As proposed, the EPA's rule would exceed the authority Congress provided the agency under Section 8(a) of the Toxic Substances Control Act, wrote the NanoManufacturing Association (NMA).
The rule's proposed approach to defining distinct variations of the same nanoscale chemical—each of which would be subject to separate recordkeeping and reporting requirements—“is impractical and unenforceable and should be eliminated,” wrote the NanoBusiness Commercialization Association (NanoBCA).
The American Chemistry Council's Nanotechnology Panel “strongly urges EPA to re-propose the rule after due consideration of comments and clarification of key concepts and authorities.”
The rule (RIN 2070-AJ54) the agency proposed April 6 addresses nanoengineered chemicals, a single term used for many different molecules used to make advanced materials for the aerospace, agriculture, electronics, energy production, food packaging and other industries (80 Fed. Reg. 18,330; 58 DEN A-4, 3/26/15).
Bayer AG, DuPont, IBM and Lockheed Martin are just a few of the companies making and using nanoengineered chemicals and the products made possible with them.
The revenue stream attributable to nano-enabled products grew from $339 billion in 2010 to $731 billion in 2012, Lux Research Inc., a market research firm, said in a 2014 update.
“Our expanded forecast for nano-enabled products reveals the global value of nano-enabled products, nano-intermediates and nanomaterials reaching $4.4 trillion by 2018,” Lux said.
In contrast to trade associations and individual companies, at least two state agencies and the Environmental Defense Fund argued that the EPA must expand its proposed rule's scope to ensure the rule collects information needed to protect people and the environment.
Comments on the proposed rule, due Aug. 5, were still being posted in the EPA's docket on Aug. 7.
Outside Scope of Law; Unworkable
ACC's panel, the Brussels-based Nanotechnology Industries Association, the Japan Chemical Industry Association, NanoBCA, the NMA, the Society of Chemical Manufacturers and Affiliates' (SOCMA) Nanotechnology Coalition and the U.K.'s Chemical Industries Association are just some of the trade groups that argued two core points:
• the section of TSCA the agency used to issue the proposed rule does not authorize the scope of information the agency proposed to require; and
• the proposal is vague and unworkable.
‘Inherent Structural Problem.'
“There is an inherent structural problem with the proposed rule, because the proposed definition of a reportable chemical substance is based on data on the size of particles, aggregates or agglomerates that EPA has no authority to require manufacturers or processors to develop under TSCA Section 8(a),” NanoBCA wrote.
NanoBCA's objections are striking, because the association has encouraged companies making nanoengineered chemicals to provide EPA environmental, health and safety data throughout those years—a position it continued to voice in its Aug. 5 comments.
“If EPA has more comprehensive and accurate information concerning the nature and properties of nanoscale chemical substances, this could favorably and efficiently address unwarranted concerns that have been raised concerning the health and environmental effects of the products of nanotechnology, and promote more balanced and scientifically informed risk assessment and risk mitigation decisions,” NanoBCA wrote.
“Nevertheless, there are some significant structural and legal concerns with the proposed TSCA Section 8(a) rule in the form that the EPA has proposed it,” the association continued.
Statute's Definition Key
Section 8(a) of TSCA authorizes the agency to require chemical manufacturers, importers and processors to submit general information they already have on their chemicals such as the identity of the chemical or chemical mixture, ways the company uses the chemical or mixture, quantity manufactured or processed, by-products produced during manufacture or processing, and the number of individuals exposed.
Reporting can only be required for chemicals as the term chemical is defined by TSCA, the NanoManufacturing Association wrote.
The statute's definition of a chemical is based solely on its molecular identity, the NMA said.
That means TSCA contemplates “a single reporting form on a per chemical substance basis.”
The proposed rule, by contrast, would require separate reports be filed for each discrete physical form—or each different nanoscale version—of the same chemical substance, a requirement “outside the scope of the law,” the NMA said.
Commonly Repeated Concerns
Common concerns trade associations and individual companies raised included:
• the lack of regulatory protocols that companies could use to generate much of the physical-chemical property data sought under the proposed rule;
• vague terms used in the rule such as its coverage of nanoscale chemicals with undefined “novel” and “unique” properties;
• the rule's proposed exclusion of chemicals with trace amounts of primary particles, aggregates or agglomerates in the size range of 1 to 100 nanometers, but no definition of what constitutes a trace amount; and
• the rule's treatment of nanoscale chemicals as different than any other class of chemicals, even though the proposed rule said the agency has not concluded that they are likely to harm people or the environment.
Trade Groups: Look at Canada's Approach
“There is no reason why nanoscale forms of chemical substances should be treated differently from conventional chemical substances,” the Nanotechnology Industries Association (NIA) wrote.
NIA, ACC's panel and SOCMA's Nanotechnology Coalition were among the trade groups urging the EPA to seek data on nanoscale chemicals using an approach more similar to the one Canada announced in the July 25 Canada Gazette.
Canada's approach focuses on a narrow scope of nanomaterials with the greatest potential for exposure, SOCMA's coalition wrote. By contrast, the EPA is striving to collect information on all nanomaterials, many of which have a very low exposure potential, the coalition wrote.
California: ‘Imperative’ Need for Data
California's Department of Public Health, Washington State's Department of Ecology and the Environmental Defense Fund argued instead that the EPA should expand the scope of its proposed rule to ensure the agency collects information needed to protect people and the environment.
As the variety of products containing nanomaterials multiplies, the exposure to nanomaterials will become more widespread among workers and the general public, California's health department wrote.
“It is imperative to generate meaningful data on engineered nanomaterials to enable risk-assessment and risk-management decisions,” the department wrote.
“If all nanosized chemical substances are not considered ‘new chemical substances,’ a data call like the one proposed in this rule will be of little use in the future,” it continued.
The Environmental Defense Fund said the rule the agency finally proposed “is a significant step back from, and provides much less opportunity for meaningful review and regulatory authority than other approaches EDF and other public health stakeholders have for years called on EPA to use.”
EDF: 10 Years, Still Waiting
EDF referred to a white paper the agency's now-defunct National Pollution Prevention and Toxics Advisory Committee (NPPTAC) issued in 2005. EDF was among the nongovernmental organizations that served on that committee.
That paper outlined issues the advisers said the agency should consider as it developed a voluntary data-collection program and regulations for nanoscale materials (228 DEN A-6, 11/29/05).
The agency pursued the voluntary data-collection program.
So little information was submitted voluntarily that the EPA announced in 2009 it would have to pursue regulations to get basic information that would allow it to understand key characteristics of nanoscale materials (65 DEN A-6, 4/8/09).
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Aug 7, 2015 | The Bulletin
By Michelle Constantineau
The American Chemistry Council (ACC) is a trade association for chemical companies.
It represents the likes of companies such as Exxon Mobile, Chevron, Dow Chemical, Honeywell, and dozens of others, and aids them in pooling their resources to influence national discussion surrounding toxic chemicals and the regulation thereof. If there’s been a law governing anything to do with toxic chemicals in your state, the ACC has probably had a hand in it.
Despite all this involvement, they swear they don’t lobby …
According to ACC president and CEO Cal Dooley, the association “does not advocate with state legislatures or state regulatory agencies on [chemical companies’] behalf related to flame retardant chemistries.”
But the ACC has been caught fighting state efforts to regulate chemicals found to cause cancer, diabetes, infertility, and IQ deficits.
The Center for Public Integrity found the ACC engaged in lobbying efforts against three Californian bills that would have restricted the use of chemical flame retardant linked to numerous serious health problems.
The bills, filed in 2007, 2009, and 2010 respectively, were ultimately crushed by the opposition. Furthermore, research by the Center for Health, Environment and Justice uncovered data that exposed the major role of the ACC in “[helping to] defeat, amend or postpone the passage of more than 300 flawed bills dealing with chemicals and plastics in 44 states.” They killed a bill to keep chemicals out of the hands of children.
A 2014 Connecticut bill would have allowed the state’s Public Health Department to identify and provide citizens in the state with a list of chemicals harmful to children. The three-page bill, which would have cost the state virtually no money to implement, was killed by lobbyists from the ACC and state business organizations without it even reaching a vote.
Grant D. Gillham, a chemistry industry whistleblower, said while testifying on a piece of Californian legislation that would require labels for chemicals in children’s products, “Over a five-year period of time we [the ACC and chemical industry lobbyists] killed 58 of 60 bills like this throughout the country”.
AND the ACC set up a fake fire safety group as a front for their agenda.
A 2012 investigation by the Chicago Tribune revealed that the advocacy group Citizens for Fire Safety, which presented itself as an unaffiliated grassroots lobbying organization, was actually a front for the chemical industry and the ACC.
In 2007, a bill that would have banned some forms of flame retardant came up for a vote in California’s state legislature. Concerned over potential loss of profits, ACC member companies Albemarle, Chemtura, and ICL Industrial Products schemed to create Citizens for Fire Safety to lobby on their behalf in defeating the bill.
They bombarded television and radio with ads like this one, concealing their agenda behind supposed concern for public welfare:
This group paid burn victims, children, and even a top burn surgeon to testify to the need for and safety of flame retardants in furniture. The surgeon, David Heimbach, admitted to being paid $240,000 by industry officials to tell a wrenching – and entirely false – account of a baby who was burned in a fire due to a lack of flame retardants in the pillow she was laying on.
Let’s take a moment to let that sink in: They literally paid an M.D. to provide false testimony about a baby bursting into flames to protect their bottom line.
Manipulative tactics such as this convinced California lawmakers that there was no need to continue efforts to scale back flame retardant use in the state. All told, the companies spent a collective $22 million on lobbying efforts to kill the 2007 California legislation. The ACC essentially wrote a bill that would block states from regulating actual poison.
Reports suggest that the most popular Senate update to current legislation originated with the ACC and the chemical industry. As the San Francisco Gate reported,
“The draft bill, obtained by Hearst Newspapers, is in the form of a Microsoft Word document. Rudimentary digital forensics — going to “advanced properties” in Word — shows the “company” of origin to be the American Chemistry Council.”
The ACC has spent $190 million on lobbying for this bill, as well as thousands of dollars on tv ads supporting co-sponsors of the legislation, such as Sen. Tom Udall (D – N.M.) and Kay Hagan (D – N.C.). Creating television spots for these candidates is a way for the ACC to support campaigns without having to register contributions with the Federal Elections Committee. Conclusion: ACC uses our corrupt political system to push their agenda at the local, state, and federal level.
As absurd as that sounds, with campaign finance law in shambles and regulatory bodies facing budget shortfalls, chronic understaffing, and instances of out-and-out corruption, agencies overseeing the ACC are virtually powerless to keep them from engaging in this technically legal behavior.
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(ACC Mentioned) Rising Stars: Emily Tipaldo
Aug 7, 2015 | Plastics News
By Jeannie Reall
EMILY TIPALDO, 31
American Chemistry Council Plastics Division
Title: Packaging director
Location: Washington, D.C.
Birthplace: Baltimore
Social media: LinkedIn, Twitter @EmmTip
Education: Bachelor’s degree, cum laude, Mary Washington College; master’s degree in international relations, with distinction, University of Westminster in London.
Associations: Association of Postconsumer Plastic Recyclers; Women’s Energy Network, D.C. Chapter board member; also work substantially with the Sustainable Packaging Coalition.
Q: Tell us about your family.
Tilpado: I’m married to a wonderful guy named Frank and we have a cat (Max), dog (Bean) and four chickens (Carmella Soprano, Miss Lee, Einstein and the Karate Kid).
Q: What was your first plastics job and why were you interested in the industry?
Tilpado: Plastics and chemistry are tangible. I love being part of an industry that is innovative and touches human lives across the globe. I’m also fascinated by the industry’s connections with energy, public policy, design and resource management. In 2009, I joined ACC’s legal department as its coordinator. Doing administrative and paralegal work for both chemical and plastics gave me my first exposure to the industry.
Q: What is your greatest achievement?
Tilpado: In supporting efforts by major consumer product goods companies to phase out the use of exfoliating microbeads in personal-care products, I developed the federal legislative strategy that united advocacy on behalf of three associations: ACC, the Personal Care Products Council and the Consumer Healthcare Products Association. Upon developing the desired model bill, we collectively lobbied the relevant House and Senate members. Discussions using the model bill as our agreed-upon language continue, with a hope of moving the bill this summer.
Q: What is your biggest failure and what did it teach you?
Tilpado: In middle school, I quickly branded myself as “bad” at math and science and never stopped to think how that mental shutdown would affect my career prospects. As I’ve come into my own, as an appreciative, pragmatic steward of the world around me, I can see the immense contribution of science and of plastics. I now know to keep an open mind and not to shy away from new endeavors.
Q: What is your current challenge at work?
Tilpado: Getting people to think about plastics sustainability holistically. Plastics, like all things, cannot be judged by a single attribute. Plastics are selected for a variety of factors that differ for each application. Encouraging companies, nonprofit environmental organizations, and the general public to look more closely at the benefits of plastics, as well as providing them with the tools to understand these benefits, is an ongoing challenge.
Q: What about the plastics industry surprises you?
Tilpado: The industry is like the old Transformers (yes, as we know I’m a child of the ‘80s) commercial: “More than meets the eye!” It’s amazing to work in a forward-thinking, innovative industry. Constantly, I’m learning about new plastic applications and companies challenging themselves to do more with less.
Q: What advice would you give to a person considering a career in the plastics industry?
Tilpado: Immerse yourself in all things plastics. Go to trade shows and industry events. Speak with those in the industry. Contact relevant trade associations for more information. And, while PhDs and engineers are the backbone of the industry there are other, critical, career paths in plastics such as communications and marketing, sales, waste management/end-of-use management and advocacy.
Q: If you were CEO of a company what would you do first?
Tilpado: First, I would spend at least a day in as many of the company’s roles as possible. I learn by doing. Experiencing firsthand what my employees do on a day-to-day basis would immensely help me understand the operations and challenges.
Q: Who is your mentor, or someone you look up to?
Tilpado: Two women who are invaluable mentors to me are Ms. Karyn Schmidt, ACC assistant general counsel, and Ms. Sarah Brozena, ACC senior director of regulatory and technical affairs. They are technical and political experts, with years of experience and a kindness toward imparting career advice. Karyn and Sarah are underappreciated for their managerial and tactical savvy. I am indebted to them for their support during my time at ACC.
Q: What job do you really want to have in the future?
Tilpado: I would love to be chief operating officer of a plastics or packaging company, or work for the sustainability division of a large consumer products company. Becoming vice president of the ACC Plastics Division, taking over for Mr. Steve Russell, also appeals to me! I get excited about being a champion for the plastics industry.
Q: What do you do to relax?
Tilpado: Disconnect. Spending time with my family and friends, time outdoors — stand-up paddling, kayaking, and running — traveling and reading are important to me.
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EPA Research Office Nominee Downplays GOP Attacks On Agency Science
Aug 7, 2015 | InsideEPA
By Maria Hegstad
President Obama's long-pending nominee to head EPA's Office of Research & Development (ORD) is pushing back on Republican senators' attacks on agency science, defending against concerns about potential conflicts of interest and other alleged flaws in scientific data that EPA often uses as the basis for its regulatory decisions.
In a July 30 response to questions from GOP members of the Senate Environment & Public Works Committee (EPW), nominee Thomas Burke says that existing agency procedures and a host of planned future actions address concerns about inadequate science. And he vows to follow through with improvements to ORD's work, such as a plan to prioritize Integrated Risk Information System (IRIS) chemical risk assessments.
Burke's answers, recently obtained by Inside EPA, offer few concessions to Republican critics of the agency's science, and it is unclear whether the response will help shift his stalled nomination.
The ORD nominee is one of several nominations for top agency positions that have been pending in the Senate for weeks, including acting EPA air chief Janet McCabe to head the Office of Air & Radiation on a permanent basis and de facto agency water chief Ken Kopocis to be the Office of Water's next permanent assistant administrator.
Senate Republicans have suggested that they will place "holds" blocking all EPA nominees from proceeding to further hearings or confirmation votes until agency Administrator Gina McCarthy answers questions that GOP senators submitted to EPA long ago on a wide range of controversial rulemakings.
Burke is one of a few of the nominees who has had an EPW confirmation hearing, answering questions from senators in person in early June. After that hearing, senators had the chance to send the nominee further written queries. Burke's response includes replies to those questions, which were mostly submitted by EPW Chairman Sen. James Inhofe (R-OK) but also includes several questions from fellow EPW member Sen. Jeff Sessions (R-AL).
Burke, a former New Jersey Department Environmental Protection official and most recently a dean of public health at Johns Hopkins University in Baltimore, was first nominated to be EPA's assistant administrator (AA) for ORD in 2013. Burke joined the agency last January as the agency's Science Advisor and as a deputy AA to ORD, both roles that do not require Senate confirmation unlike the ORD chief position which does.
Dual Roles
Inhofe in his questions asked Burke about the dual role he is currently seeking as both science advisor and ORD chief. EPA has received advice from National Academy of Science (NAS), the Government Accountability Office and its Science Advisory Board (SAB) recommending that EPA split the dual role and have separate people undertake the two jobs -- both to reduce workload and to address real or perceived conflict that can arise between ORD and science staff in regional or program offices. EPA has long resisted the advice, and only briefly in recent years -- during former Administrator Lisa Jackson's tenure -- had separate individuals filled the two roles.
Burke responds that he and McCarthy consulted with NAS and believe that its recommendations would be fulfilled by the dual roles. "Having served as the Deputy Assistant Administrator and the EPA Science Advisor since January of this year, it is clear to me that it is possible for the AA of ORD to direct the world-class research program in ORD and serve as the EPA Science Advisor," Burke writes, adding, "[T]here is an important advantage to this model," citing ORD's alignment with EPA's mission and experienced scientists supporting the ORD chief.
"EPA has a built-in mechanism that would provide a check on any potential or perceived conflict of responsibility -- the Science and Technology Policy Council (STPC) -- a group of senior . . . EPA representatives that provide input on science and technology policy issues and ensures that EPA's science is well-coordinated," Burke adds.
Inhofe also questioned Burke whether EPA has followed advice from a 2004 NAS report cautioning the agency against reliance on old data when developing new national ambient air quality standards (NAAQS).
Burke responds that he agrees with NAS that "NAAQS decisions must be based on the best possible science and am pleased to find that this is the case. After the 2004 NAS report, EPA revised the process to evaluate the science . . . the 2011 [NAS] report . . . complimented the revisions to the NAAQS documentation and review process."
Some of Inhofe's questions touch upon legislation that Republicans are pushing to require publication of all studies that EPA and other agencies use in decision-making, or altering the make-up of EPA's SAB, a panel of independent, external science advisors to include more industry and state and local officials.
On the issue of making agency science "transparent," Burke responds by describing a database where EPA offices can store data and make it publicly available, as well as a policy on data access.
Inhofe also pressed Burke to "increase the participation of industry scientists and scientists from American heartland" on the SAB, arguing that "most SAB members are from academic institutions on both coasts."
Burke, a former SAB member, responds that the board's existing membership includes 32 percent with industry or consulting experience, 13 percent with state, local government or tribal experience and that 11 of the 45 members of the chartered SAB reside in Midwestern states.
'Tremendous Resource'
Burke describes SAB as a "tremendous resource" and adds that he has started discussions with STPC "to ensure that the highest priority, cross-agency science questions are identified and that the agency takes full advantage of its SAB as a source of advice on those questions."
Inhofe also questioned Burke regarding changes underway with EPA's influential and often controversial IRIS program. IRIS analyzes environmental contaminants' human health risks, and provides cancer and non-cancer risk estimates that often form the basis for EPA waste, water and air decisions, and are consulted by other agencies world-wide as well. But the program has long been under scrutiny by regulated entities, Congress and the GAO for its lengthy, convoluted process and assessments that industry considers too strict.
Inhofe raised one concern that has been growing among regulated entities as the agency has in recent years undertaken assessments of chemicals like ethylene oxide, formaldehyde and methanol that are produced endogenously -- within the body -- as well as exogenously by industrial processes. Industry has urged the IRIS program to draft new guidance on the issue and to reality check these and other IRIS assessments.
"Do you agree that when ORD programs assess potential risks from such substances, it's critical to derive the range of potential risks arising from both sources -- internal and environmental -- and to communicate the degree to which these estimated risks from internal and external sources are plausible and realistic?" Inhofe asked.
"This is an important consideration in understanding and managing incremental risk from environmental exposure," Burke replies. "Since there are many natural products of metabolism that may have toxic effects if they are out of balance, the fact that they are produced naturally does not make them 'safe' at all doses."
Inhofe also raised another long-standing concern, saying that EPA's 2011 IRIS assessment of the solvent trichloroethylene, a frequent contaminant at Superfund sites and groundwater sources, is too strict, based on a short-term health effect of fetal cardiac malformations, and leads to overly stringent cleanup requirements, particularly when it intrudes onto sites as a vapor.
But Burke responds that an IRIS assessment "does not dictate how risk managers use scientific information in decision-making."
IRIS Agenda
Meanwhile, Burke commits to release "a prioritized IRIS agenda covering the next several years' effort" in response to another question about the program. IRIS leaders have been promising the release of such a five-year prioritized plan of IRIS assessments for some months, but that plan has yet to be released.
Inhofe also questioned Burke about NAS recommendations for use of transparent, systematic evaluation of studies included in IRIS assessments, and Burke indicates the program is evaluating different approaches to do so. He adds that if confirmed by the Senate, he will work with the program to "improve its methods for study evaluation and integration."
Echoing industry concerns about environmentalists urging the IRIS program to include study funding source as an element of its systematic reviews of toxicity literature, Inhofe asks Burke's views on the subject.
Burke replied that he will ensure clear criteria are used for judging study quality and integrating the information, and not authorship or funding source.
Elsewhere in his questions, Inhofe raised concerns over EPA's human testing program, which has been under scrutiny for some years, and is currently under NAS review.
Inhofe questioned whether EPA has complied with all the recommendations made in an EPA Inspector General (IG) report on the program last year, and whether testing on children is ever justified.
Burke responds that "all corrective actions have been implemented" in response to the IG's report, adding that "there are some things you can only learn by interacting directly with people, controlling variables and methods to allow firm conclusions to be drawn."
His response regarding exposing children to environmental pollutants does not mention an observational study of children's everyday exposures EPA sought to fund a decade ago, but canceled due to concerns from Sen. Barbara Boxer (D-CA), the ranking member of EPW. Burke does appear to try to alleviate the concerns raised with that aborted 2005 study grant. "There's an important difference between observational studies of populations and intentionally dosing humans with a pollutant," Burke replies. "EPA does not intentionally expose children to pollutants. However, EPA has funded some important epidemiological studies that include children . . . This research ultimately helps the EPA to better understand how to protect children from the harmful effects of pollutants."
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Aug 7, 2015 | Chemical Watch
By Emma Davies and Emma Chynoweth
Authors of the 2012 UN Environment Programme (Unep)/World Health Organization (WHO) Endocrine Disrupting Chemicals State of the Science report have published a detailed “rebuttal” of criticisms made of it.
The critique, published in 2014, was funded by a number of chemical and pesticide industry organisations (CW 20 February 2013 and CW 24 April 2014).
Editors and other experts behind the original report describe the critique as “scientifically not erudite and not convincing to EDC specialists”.
They conclude that criticism of their report is “without basis” and suggest that it creates the false impression of scientific controversy that is aimed at politicians and bureaucrats unfamiliar with the complexities of the issue.
The 2012 report says that disease risk due to endocrine-disrupting chemicals (EDCs) “may be significantly underestimated” and highlights the fact that many endocrine-related diseases are on the rise.
However, an industry-funded review, led by James Lamb from Exponent, fiercely criticised it, claiming that it does not accurately reflect the state of the science on endocrine disruption.
Lamb et al's 2014 critique lists a number of points, including the lack of both a systematic framework for reviewing and evaluating studies, and weight-of-evidence assessment.
Such criticism is based on “naive assumptions”, write the Unep/WHO experts, led by Ake Bergman from the Swedish Toxicology Sciences Research Center (Swetox), who was chief editor and coordinator of the 2012 report (GBB April 2014).
The first assumption is that there exists a systematic approach to assess causation that is “uncontroversial for endocrine disrupting chemicals”, they write in a paper to be published in Regulatory Toxicology and Pharmacology.
“A universally accepted weight-of-evidence method for endocrine disruptors does not yet exist,” and “will be a considerable challenge to develop”, add the authors.
Methods that exist, for example for carcinogens, cannot simply be transferred to endocrine disrupting chemicals, they explain. Such an approach would require dealing with adverse effects and mode-of-action at the same time, which would be unprecedented, they say.
Another assumption is that such standardised approaches will always yield the same objective outcome, they add.
“These ideas are illusory and are based on gross simplifications of the debates about causality that have taken place in the epidemiological and science philosophy literature,” they write.
Dr Lamb tells Chemical Watch that he disagrees strongly with the rebuttal article.
He suggests that the divergence of views comes because: “They are adopting a precautionary principle and hazard-only approach, while we are analysing the issues using a scientific risk-based approach.
"Using these different methods for reviewing and evaluating data leads to different conclusions.”
Further, he says: “Our position is consistent with the recent comments [from stakeholders] published by the European Commission on defining criteria for identifying endocrine disruptors, which support a risk-based approach.”
He adds that the issues of dose-response and potency separate the two groups of authors.
“By relying on a risk-based approach, we consider dose-response and potency as critical elements of the analysis of adverse effects. They tend to minimise this issue. We consider that a mistake,” he says.
According to the Commission, the European Food Safety Authority (Efsa) and the Joint Research Centre consider potency and low dose irrelevant to EDC criteria.
Furthermore, the EU executive says the EDC criteria options are based on identification and characterisation of hazard. Its EDC roadmap notes, where applicable, risk assessment and/or socio-economic elements could be introduced in sectorial legislation.
“The impact of all options will be assessed, considering potential effects on health, environment, trade, agriculture, and socio-economy in general. The assessment has already started, but further steps in the analysis are needed,” it states.
Once concluded, the College of EU Commissioners will take a decision regarding the criteria.
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EPA's Proposed Trichloroethylene Rule Published
Aug 10, 2015 | BNA Daily Environment Report
A proposed rule that would require companies to notify the Environmental Protection Agency 90 days before they plan to make or process trichloroethylene (TCE) for use in some consumer products was published in the Federal Register Aug. 7 (80 Fed. Reg. 47,441). The EPA released the proposed significant new use rule (SNUR) online July 30 (147 DEN A-4, 7/31/15). The SNUR is open for public comment through Oct. 6. Consumer applications of TCE constitute a small amount of the solvent's domestic use. The vast majority of the 250 million pounds made in and imported into the U.S. annually is sold for industrial applications and through industrial supply chains, the agency said. The proposed SNUR is available at https://federalregister.gov/a/2015-19348.
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PHMSA Outlines Work to Address Pipeline Response Gaps
Aug 10, 2015 | BNA Daily Environment Report
By Rachel Leven
Improvements in training, engagement and leveraging of existing resources are under way to address gaps in pipeline emergency response efforts, federal regulators told Congress.
The Pipeline and Hazardous Materials Safety Administration has already moved to address these gaps through actions such as funding “train-the-trainer” pipeline response hosting online, adding information to the National Pipeline Mapping System online tool and working with an industry-sponsored program regarding community outreach and preparedness for hazardous materials transportation-related incidents, the agency said in a report.
There are still “challenges and opportunities” to be addressed, according to the report, “Summary of the Pipeline and Hazardous Materials Safety Administration's Pipeline Emergencies Training Engagements.”
Among those challenges, the report said, is the need to encourage other states to adopt approaches similar to the Georgia Pipeline Emergency Responders Initiative, which started in 2012. Under this approach, state and federal regulators, pipeline operators and firefighters have improved communication and understanding of risks and responsibilities, resulting in a new training program and other benefits, it said.
Congress requested a report regarding pipeline emergency training as part of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235). The report was presented roughly two months before the authorization for pipeline safety programs under PHMSA expires, amidst congressional efforts to draft and pass a reauthorization bill by that Sept. 30 deadline (145 DEN A-17, 7/29/15).
The reports were sent to the chairmen and ranking members of the House and Senate appropriations committees, with a signed July 27 letter from Transportation Secretary Anthony Foxx. They were shortly followed by a July 29 PHMSA report on its status, challenges and strategies in competing with industry to hire qualified pipeline inspectors.
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Activists Urge Inspections of Offshore Calif. Pipelines
Aug 10, 2015 | BNA Daily Environment Report
By Alan Kovski
An environmental advocacy group asked federal regulators to inspect all pipelines in federal and state waters off the coast of California.
The Aug. 6 petition from the Center for Biological Diversity was sent to the Bureau of Safety and Environmental Enforcement and the Pipeline and Hazardous Materials Safety Administration in reaction to the May 19 crude oil spill from a Plains All American Pipeline LP coastal pipeline in Santa Barbara County, Calif.
The Outer Continental Shelf Lands Act imposes on BSEE a duty to inspect offshore oil and natural gas pipelines, and the Pipeline Safety, Regulatory Certainty and Job Creation Act imposes a similar requirement on PHMSA, the petition said. In practice, the duties are divided up between the two agencies in various ways.
There are more than 200 miles of pipelines off the California coast, the petition said. The petition expressed concerns about the potential for spills from pipelines as a result of corrosion, fatigue stress and other factors.
Preliminary findings by PHMSA cited corrosion as a possible cause of the Santa Barbara County spill (108 DEN A-3, 6/5/15).
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Wastewater Spill From Colorado Gold Mine Triples In Volume: EPA
Aug 9, 2015 | Reuters
By Steve Gorman
n">Some 3 million gallons of toxic wastewater, triple previous estimates, have poured from a defunct Colorado gold mine into local streams since a team of Environmental Protection Agency workers accidentally triggered the spill last week, EPA officials said on Sunday.
The discharge, containing high concentrations of heavy metals such as arsenic, mercury and lead, was continuing to flow at the rate of 500 gallons per minute on Sunday, four days after the spill began at the Gold King Mine, the EPA said.
An unspecified number of residents living downstream of the spill who draw their drinking supplies from their private wells have reported water discoloration, but there has been no immediate evidence of harm to human health, livestock or wildlife, EPA officials told reporters in a telephone conference call.
Still, residents were advised to avoid drinking or bathing in water drawn from wells in the vicinity, and the government was arranging to supply water to homes and businesses in need.
The spill began on Wednesday after an EPA inspection team was called to the abandoned mine near the town of Silverton in southwestern Colorado to examine previously existing wastewater seepage.
As workers excavated loose debris at the site, they inadvertently breached the wall of a mine tunnel, unleashing a flow of the orange-tinged slurry that cascaded into Cement Creek and then into the Animas River downstream.
The town of Durango, Colorado, roughly 50 miles south of the spill site, shut off its intakes of river water as a precaution, according to the EPA.
By Friday, the main plume of the spill had traveled some 75 miles south to the New Mexico border, prompting utilities in the towns of Aztec and Farmington to shut off their intakes from the Animas as well, local authorities said.
Agency officials said they were consulting with representatives of the Navajo Nation, whose sprawling reservation borders Farmington and the San Juan River, which is fed by the Animas River and has also been tainted by the spill.
EPA previously estimated 1 million gallons of wastewater had been released since Wednesday, but on Sunday the agency revised that up to 3 million gallons, based on measurements taken at a U.S. Geological Survey stream gauge.
In recent days, EPA has been diverting the ongoing release into two newly built settling ponds where the waste was being treated with chemicals to lower its acidity and to filter out dissolved solids before being discharged to Cement Creek.
The creek's water quality has already been badly degraded from a long history of acid mine drainage in the area, agency officials said.
Preliminary water sampling from the creek and Animas River showed that concentrations of heavy metals briefly spiked in areas reached by the wastewater plume but appeared to clear considerably once it had passed downstream, EPA regional Administrator Shaun McGrath said.
EPA officials said that by Sunday, a delineated "leading edge" of the contamination flow was no longer visible from aerial surveys, indicating concentrations of wastewater were diminishing.
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(ACC Mentioned) Not Just Skimming the Surface
Aug 9, 2015 | Scienceline
By JoAnna Klein
In 1997, Captain Charles Moore was sailing from Hawaii back to the mainland when he found himself in a sea of floating debris the size of Texas. Some of the bobbing plastic was so big that Moore could spot it from the deck of his boat, though most was much smaller. The Great Pacific Garbage Patch, as it became known, was the consequence of a gyre — a vortex of swirling ocean currents that sucked floating debris into its core.
Soon, that same gyre would seduce Marcus Eriksen and Anna Cummins.
Eriksen and Cummins met at a birthday party for Captain Moore in 2007 and got engaged while cruising the Garbage Patch with him. They turned their growing fascination with plastic into a crusade to remove it from the world’s oceans. They used cash gifts from their 2009 wedding — he wore a recycled plastic tux, she a plastic gown — to incorporate 5 Gyres, a small non-profit that has since grown into a well-funded group with partners around the world that embarks on research expeditions across four oceans. Today, the group focuses on correcting public misunderstanding about the diffuse nature of the problem — they prefer to call it plastic smog instead of a garbage patch — and promoting innovative solutions, such as tougher manufacturing laws and greener products.
“Charlie Moore started it, and they took it to a different level,” says Chelsea Rochman about Eriksen and Cummins, who first brought attention to the ocean plastic problem through Moore’s The Algalita Marine Research Foundation. Now a marine ecologist at The University of California, Davis, Rochman got her research start in 2009 exploring The Great Pacific Garbage Patch.
Eriksen, a Gulf War veteran, became interested in the environment after witnessing hundreds of burning oil wells in Kuwait. He was drifting down the Mississippi River on a handmade raft made of plastic debris when he heard about Moore’s discovery in 2004. Around the same time, Cummins first heard Moore speak while she was conducting bilingual education and environmental outreach for a California non-profit. Both ended up sailing separately with Algalita.
When the pair finally met, the natural next step was the formation of 5 Gyres, their own non-profit to clean up all of the ocean’s gyres. At first the group focused on understanding the scope of the problem.
“In the beginning, it was just a scrappy NGO doing science,” says Cummins.
Setting sail on its first expedition in January 2010, the group relied in part (and still does) on contributions from donors, or “ambassadors” who each paid up to $8,500 for a spot on the boat. During their trips they survey the ocean for plastic debris, quantify how much they find and sometimes bring on extra people for other research. On occasion, Cummins plays the fiddle.
5 Gyres had split from Algalita to take its environmental advocacy global. And after a few well-publicized trips, Eriksen and Cummins started attracting corporate sponsors such as Patagonia, Kleen Kanteen, and even the American Chemistry Council, which lobbies for the chemical industry.
Today, 5 Gyres is deeply involved in advocacy as well as science. They now have a $600,000 annual budget supported by 32 corporate backers and a small army of grassroots activists. Prominent climate activist Bill McKibben is one of the group’s scientific advisors.
By 2014, 5 Gyres had made 16 global expeditions and collected data from 1,571 locations. Based on the data from those voyages, Eriksen concluded in a 2014 PLOS-One study that there are at least 5.65 billion pieces of plastic floating atop the Earth’s oceans. He says that’s more than 250,000 metric tons of plastic, roughly equivalent to a stack of waster bottles stretching all the way to the moon and back — twice.
Ranging from the size of a boat to the size of a grain of sand, these pieces of plastic degrade, fragment, sink or collect in ocean currents and travel the world as tiny, toxic particles.
“There are no patches of trash sitting in the ocean,” according to Eriksen. “I think its more appropriate to call it a smog, where you get this fine, particulate substance that becomes globally distributed throughout the water column in all dimensions.”
He thinks that California’s experience with airborne smog may be instructive in fighting microplastic pollution. In the 1970’s, some of the early ideas for addressing smog in California focused on sucking it up with vacuums. But soon attention shifted to the source of the emissions, and engineers designed better mufflers and cleaner smokestacks.
Eriksen and Cummins hope that reframing the “garbage patch” as a “plastic smog” will convince people to focus on land-based preventative solutions rather than trying to clean up debris after it’s in the ocean.
With 288 million tons of plastic produced worldwide in 2012, and 4.8 to 12.7 million tons entering the ocean in 2010, trying to remove plastics from the world’s oceans would be like mopping up water from an eternally gushing faucet.
The problem is so vast that Eriksen acknowledges “there is no silver bullet.” But he thinks progress is possible by hitting three targets: individuals, companies and government.
Individuals, he says, can reduce consumption, recycle what they can and clean up plastic before it reaches the ocean. Industries can design marine biodegradable products and encourage the use of glass alternatives with return programs where bottles serve as discount coupons for the consumer’s next purchase.
As for government, pressure from 5 Gyres and other groups has led 18 states to pass or propose legislation limiting the use of microbeads, the granular particles found in some cosmetics and cleaning products. These tiny plastics are small enough to pass through filters in the water system, flush into waterways and ultimately end up in the bellies of marine animals. Concern over microplastic toxicity and its potential harm throughout the food chain is gaining momentum in research groups and environmental agencies around the world.
The smaller the plastic, the bigger the concern, explained Anna-Marie Cook of the U.S. Environmental Protection Agency. She says the tiny bits act like sponges, sopping up environmental chemicals such as flame retardants and pesticides.
Rochman, the UC-Davis ecologist, says she’s found microplastics in all sorts of marine life. Animals eat them and their tissues absorb the chemicals — in some cases, causing signs of endocrine disruption and behavior problems.
As concern about the problem spreads, 5 Gyres plans to expand its 16-member staff of scientists, educators, writers and artists. “We are growing our reach to be a citizen science hub for plastic pollution activists worldwide,” says Eriksen.
5 Gyres is collaborating with artist Alejandro Duran, who has attracted attention for his plastic installations on the Yucatan coast. Eriksen, also a sculptor, joined Moore at the Atlanta Science Festival on a panel about plastic, art and advocacy this March.
After their daughter Avani (whose name means Earth in Italian) was born in 2012, Eriksen and Cummins have been focusing on educating children. Their most recent expedition culminated in an international youth summit in the Bahamas.
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DOE Approves Florida LNG Export Project
Aug 7, 2015 | PoliticoPro - Whiteboard
By Elana Schor
he Department of Energy today gave the green light for Florida-based American LNG Marketing to export 8 million cubic feet of liquefied natural gas per day to nations with which the U.S. does not have a free trade agreement.
The company first applied for the 20-year approval in March. The facility would ship fuel in ISO containers and also intends to serve domestic transportation customers. -
‘Frack Now, Pay Later,’ Top Services Companies Say Amid Oil Crash
Aug 7, 2015 | Reuters
By Terry Wade and Anna Driver
Business is so tough for oilfield giants Schlumberger NV and Halliburton Co that they have come up with a new sales pitch for crude producers halting work in the worst downturn in years. It amounts to this: "frack now and pay later."
The moves by the world's No. 1 and No. 2 oil services companies show how they are scrambling to book sales of new technologies to customers short of cash after a 60 percent slide in crude to $45 a barrel.
In some cases, they are willing to take on the role of traditional lenders, like banks, which have grown reluctant to lend since the price drop that began last summer, or act like producers by taking what are essentially stakes in wells.
At Halliburton, some of the capital to finance the sales will come from $500 million in backing from asset manager BlackRock, part of a wave of alternative finance pouring into the energy industry that one Houston lawyer said on Thursday allows companies to "keep the engine running."
When its second-quarter net profit tumbled by more than half a billion dollars to just $54 million, Halliburton's Chief Executive Dave Lesar told analysts the company needed to find new revenue. The BlackRock money, he said, would allow Halliburton to "look at additional ways of doing business with our customers, different business models, push beyond where we have been today."
Halliburton declined to provide additional details, including how many customers it has for its financing program, citing confidential dealings with clients. Schlumberger has said it has eight onshore refracking clients in North America.
Another variant, which Halliburton has considered and Schlumberger has pushed, is one in which the companies cover up-front costs for a producer and then get a piece of a well's performance.
The services companies have made these special offers to producers in a bid to roll out the new business line of refracking, in which existing wells are worked over to lift output.
Halliburton and Schlumberger tout refracking as a cheap way of adding barrels because it avoids drilling new wells, which can cost several million dollars each.
TINY BALLS
One way to refrack involves injecting tiny rubber-coated balls and reactive fluids that can later dissolve in a well to seal off existing fissures in rock. This boosts pressure. Then, new cracks in rock that release oil are created with a pressurized frack slurry of sand, water and chemicals.
It is not yet clear how much business refracking will generate.
Oilfield services analyst Angie Sedita at the Swiss bank UBS said in a note to clients that refracking will "not be enough of a demand driver" in 2016 and will take time to make inroads.
Two prominent shale producers, EOG Resources Inc and Anadarko Petroleum Corp, have both said refracking technology needs improvement.
Others, including Chesapeake Energy Corp and Devon Energy Corp have said they have been refracking and are happy with the results.
Devon said this week it has refracked 1,000 wells over the years in North Texas and indicated it has no plans to tap unusual financing from a service company.
A few dozen wells have been refracked twice and the company said it is working on newer generation refracking methods for its large inventory of wells.
"We've got a great opportunity there and we're continuing to prosecute that on our own," Tony Vaughn, Devon's executive vice president for exploration and production said on Wednesday.
Schlumberger Chief Executive Paal Kibsgaard has acknowledged producers might be unwilling to give up output from a well they think will be lucrative, and instead choose a traditional services contract.
"It's just a reflection of do they want to capture more of the value themselves or would they like to outsource all the risk and potentially much more of the upside to us?," he said on the company's July results call.
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Small Tea Party Meeting Has a Special Guest: Big Oil
Aug 10, 2015 | Bloomberg Politics
By Isaac Arnsdorf
The featured speaker at the July meeting of the Northern Virginia Tea Party was Miles Morin, the state coordinator of Virginia Energy Citizens.
About three dozen people came to hear him in a sports bar just outside the Capital Beltway in Falls Church. He took the stage following the Lord’s Prayer, the Pledge of Allegiance, a retired Air Force colonel’s advice on emergency preparedness—“lock and load”—and a retired Exxon Mobil Corp. environmental adviser’s presentation on “the myth of climate change.”
Morin's talk originally was billed as being about how “the radical environmental movement poses a serious threat to our freedoms, our property.” That description was removed from an online invitation after it was reported by The Intercept, a news website. In the revised iteration, Morin was to share information on how to tell “local, state and federal officials why you support pro-energy policies.”
Morin said his organization supports “all of the above” in domestic energy production—a slogan that President Barack Obama frequently uses to describe his energy policy. At least one member of the crowd mentioned his interest in just one of the above—rooftop solar panels helping him unplug from the grid. But Morin talked only about oil and gas in general and specifically about bringing fracking and offshore drilling to Virginia.
Virginia Energy Citizens, which describes itself as a grassroots coalition, is sponsored by the American Petroleum Institute, the main lobbying group for the U.S. oil industry. The fine print on the bottom of Energy Citizens’ website acknowledges the relationship. Morin works for Capital Results, a public relations firm in Virginia and North Carolina, according to his biography on the company’s website.
The oil and gas industry is resisting a string of new regulations this year from the Obama administration, affecting methane leaks, fracking on federal land, crude by rail, and carbon emissions from power plants. Faced with a President who wants to make fighting climate change part of its legacy, lobbyists are instead taking their fight to the streets. The Tea Party meeting offers a rare glimpse of their tactics on the ground.
It also illustrates a new twist on the age-old Washington influence game: Lobbyists and paid consultants often try to shape public opinion with advertising, but attending meetings and passing themselves off as grassroots activists is new, said Craig Holman, the government affairs lobbyist for Public Citizen, a Washington-based watchdog group. It could create the appearance of a public outcry to lawmakers who don't realize lobbyists are behind it, he said.
"That's clearly deceptive," Holman said. "Not only are they trying to deceive the Tea Party activists, they'll also be deceiving Congress at the same time."
Environmental activists with the Sierra Club are familiar with this tactic, which they call "astroturfing," according to Michael Brune, the group's executive director. The organization said it has identified millions of dollars spent on front groups to resist local fracking bans, oppose state forests, influence utilities commissions and resist climate-change regulations.
Among the assertions Morin made at the meeting:
On fracking: “The EPA has said there is no evidence of hydraulic fracturing contaminating drinking water.” But in a June report, the Environmental Protection Agency said fracking and related activities contaminated drinking water in a number of specific instances, although the impact was not “widespread” or “systemic.”
On the EPA's plan to restrict ozone: “We’re not even there yet at the 75 parts per billion 2008 level, and EPA is proposing to lower it to 60 or 65 parts per billion, and if that happens it will put most of Virginia in a non-attainment zone.” In fact, all but three of Virginia’s counties meet the current standard. The EPA is proposing to lower the standard to between 65 and 70 parts per billion. Nine Virginia counties would fail at 70 parts per billion, another four wouldn’t meet the stricter standard, and 10 counties already have ozone levels below 65 parts per billions. The EPA projects all Virginia counties would meet the proposed range by 2025.
On the impact of ozone restricting: “It will increase our electricity rates on average by 15 percent throughout the country if we lower those standards.” Meeting the proposed 65 parts per billion ozone standard would increase average home power prices by 1.7 percent over what they would otherwise be through 2040, according to a February study by NERA Economic Consulting for National Association of Manufacturers.
On health effects: “A federal court, just this past year, found that lowering the ozone level any more would not have positive effects on human health.” Last October, the U.S. Supreme Court declined to review a 2013 appeals court decision that upheld the EPA’s 2008 standards, which industry groups said were too restrictive. That decision also rejected environmentalists’ claims that the standard was too lax—the court said the EPA had done enough to show that setting the level at 75 parts per billion protected public health.
Morin urged attendees to sign up to write letters to the editor, meet with elected officials and attend rallies. He promised to linger after the meeting to take questions, but he said he doesn’t talk to reporters.
Ron Wilcox, the meeting’s host for the Tea Party, concluded Morin’s presentation saying, “We want to help this group as much as we possibly can.”
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Universities Must Divest from the Fossil Fuel Industry
Aug 10, 2015 | The New York Times - Opinion Pages
By Naomi Oreskes
Academic life is dedicated to the creation and dissemination of knowledge, so academics should be particularly offended by organized efforts to undermine knowledge. Yet this is exactly what the fossil fuel industry has done for more than two decades.
Scientists reached consensus in the late 1970s that burning fossil fuels would likely lead to anthropogenic climate change, and since the early 1990s their predictions have been coming true. Yet virtually as soon as scientists began to say so publicly, the fossil fuel industry began to work to challenge it. Following a strategy honed by the tobacco industry, they insisted that the science was too unsettled and uncertain to justify policy action, and have launched highly personal — arguably defamatory — attacks on individual scientists.
Some of the leading fossil fuel companies claim that they no longer promote disinformation, but nearly all of them are members of trade organizations that do. Why should universities invest in an industry that has deliberately sought to undermine the knowledge that we have produced?
What's more, it is well established consensus that even the use of existing reserves of oil, gas, and coal will push the global climate well past the 2-degree target that would protect us from the most serious harm, but the fossil fuel industry has expressed no willingness to consider an alternative business model.On the contrary, the major oil and gas companies are continuing to explore aggressively for still more fossil fuel resources, including tar sands, shale gas, shale oil, and conventional oil in hard-to-reach places. All of these resources have carbon footprints worse than conventional oil and gas, and given the time it takes to explore, develop, and exploit an oil or gas field, these activities promise to lock in another half century of fossil fuel dependence.
University leaders around the country have repeatedly stated that they understand the threat of climate change, and take it seriously. Many universities have expanded their commitment to climate change research. But what is the logic of working diligently — and spending billions of dollars of taxpayer and philanthropic money — to understand the threat of disruptive climate change, only to invest in an industry whose activities virtually guarantee it? -
Canadian Candidates Battle Over Keystone Pipeline, Climate
Aug 7, 2015 | The Hill - E2 Wire
By Devin Henry
Canadian Prime Minister Stephen Harper defended Thursday his work on approving the Keystone XL Pipeline and predicted the next United States president will support the project.
“As you know, that’s a situation under the control of the United States,” Harper said of Keystone during Canada's first pre-election debate Thursday night.“I’ve had many conversations with President Obama. … He is simply saying he will make a decision that is in the American best interest, but as you know there’s overwhelming public support on both sides, and I’m very optimistic, in the long run, about the future of that project.”
Harper said it “may be the case” that the next president will approve the project even if Obama opposes it during his term.
“I’m actually very confident, looking at the field, that whoever is the next president, I think, will approve that project very soon in their mandate,” he said.
The Obama administration is currently reviewing the Keystone project and could decide soon on its prospects.
Republicans support the project, though Democratic front-runner Hillary Clinton has refused to give a position on it. Other Democratic candidates oppose Keystone.
Harper and the leaders of three other major Canadian parties sparred Thursday in the first debate ahead of the country’s October elections. Energy and climate issues were a key topic in the debate, with Harper taking credit for more energy exports, reductions in greenhouse gas emissions and his work on the Keystone project.
His opponents hit him at every turn, saying he hasn’t instituted the climate policies he promised earlier in his term as prime minister and crediting an economic downturn, not government action, with reducing emissions.
They also fought over the future of Keystone. Thomas Mulcair, the leader of the New Democratic Party, the top opposition to Harper’s Conservative Party government, implied that he opposes the project and would institute harder regulations on the energy sector, including a carbon tax.
“I would enforce that type of legislation, make polluters pay for the pollution they create, and these types of projects would get looked at with a thorough and credible environmental process,” he said.
“Part of sustainable development is creating those value-added jobs in your own country. You don’t export them to another country. … I want to create those 40,000 jobs [from Keystone] here in Canada.”
Liberal Party leader Justin Trudeau accused Harper of making the Alberta oil sands region the “scapegoat” for climate change and said he would work with the U.S. and Mexican governments on continental energy regulations if he were prime minister.
The Green Party’s Elizabeth May said her party is opposed to every major proposed pipeline project in the country, and called for more work to combat climate change.
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EPA Argues Statute Clear in Clean Power Plan Defense
Aug 10, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency in its final Clean Power Plan sought to short circuit arguments against the carbon dioxide standards as opponents of the rule press judges to quickly take up their legal challenges.
The final Clean Power Plan (RIN 2060-AR33), issued Aug. 3, revises and expands the EPA's defense of its legal authority to regulate carbon dioxide emissions from power plants under Section 111(d) of the Clean Air Act. The new interpretation comes as federal courts have sought to limit the leeway federal agencies have to interpret laws.
Where previously the EPA had argued that conflicting amendments to the statute were vague and open to interpretation, the agency now says the plain text supports the Clean Power Plan, an argument it had offered during initial legal challenges to its proposal. The agency now argues that conflicting amendments adopted to Section 111(d) when the Clean Air Act was last amended in 1990 can now be read harmoniously to support the Clean Power Plan's requirements.
“On this issue, the EPA has concluded that the two differing amendments are not properly read as conflicting,” the agency said in the rule. “Instead, the House amendment and the Senate Amendment should each be read to mean the same in the context presented by this rule: that the Section 112 Exclusion does not bar the regulation under CAA section 111(d) of non-[hazardous air pollutants] from a source category, regardless of whether that source category is subject to standards for [hazardous air pollutants] under CAA section 112.”
Conflicting amendments to Section 111(d) were adopted when the Clean Air Act was last amended in 1990. The Senate amendment would bar the agency from regulating pollutants under Section 111(d) that are already regulated as toxic pollutants under Section 112. The House language would say the EPA cannot regulate industrial sources under Section 111(d) if they are already subject to hazardous air pollutant standards under Section 112, as are power plants.
Opponents of the Clean Power Plan argue the House amendment should take precedence and the Senate language is merely a conforming amendment meant to give force to the House language. Therefore, the EPA cannot regulate carbon dioxide emissions from power plants, which are already subject to the mercury and air toxics standards issued under Section 112.
The EPA had offered a similar interpretation of those amendments as part of its Clean Air Mercury Rule, a mercury emissions trading program that was struck down by the U.S. Court of Appeals for the District of Columbia Circuit without judges reaching the issue of Section 111(d)'s interpretation.
However, now the EPA argues that the House language is ambiguous and can also be interpreted to support the Clean Power Plan. The agency also says that opponents' arguments do not give full force to the text of the Clean Air Act by ignoring the Senate amendment.
“The Senate amendment, like the House amendment, was enacted into law as part of the 1990 CAA amendments, and must be given effect,” the EPA said.
Courts Have Chipped Away at Deference
The EPA's latest interpretation of its Clean Air Act authority comes as both the D.C. Circuit and the U.S. Supreme Court have issued decisions that place limits on the deference federal agencies receive when interpreting laws.
“They're offering a statutory interpretation argument and backing off their initial argument that the statute is unclear so therefore the court should give EPA deference,” Richard Alonso, a partner at Bracewell & Giuliani LLP, told Bloomberg BNA Aug. 7. “What the EPA has realized is the D.C. Circuit and the Supreme Court have chipped away at Chevron.”
For more than 30 years, since a 1984 decision in Chevron U.S.A. Inc. v. NRDC, courts have applied a two-part test for judicial review of agency actions. Under Chevron, a court must first decide whether the plain text of the law is clear. If the law is ambiguous, then the court must decide whether the agency's interpretation of the law is permissible (Chevron U.S.A. Inc. v. NRDC, 467 U.S 843, 21 ERC 1049 (S.C. 1984) , (U.S. 1984)).
Recent Supreme Court decisions on the health-care law and the EPA's interpretation of Section 112 for its mercury and air toxics standards have found courts placing new limits on the deference federal agencies receive, Alonso said (126 DEN A-1, 7/1/15).
While opponents of the Clean Power Plan will offer other challenges to the rule, Alonso said resolving the interplay between Sections 112 and 111(d) is key because it represents a “threshold issue” that the court must resolve before reaching those other arguments.
“This is the first issue that has to be decided,” he said.
EPA's Interpretation ‘Much Stronger.'
Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, told Bloomberg BNA that the EPA is now offering a “much stronger interpretation of the statute.”
“The reality is that the Senate amendment was voted on by both chambers and signed by the president and that makes it law,” he said.
The EPA first offered its revised interpretation of the interaction between Sections 112 and 111(d) of the Clean Air Act in a reply brief filed in early lawsuits seeking to block the proposed rule before it could go final (59 DEN B-1, 3/27/15).
The lawsuit was ultimately dismissed on the grounds that rule was not yet final at the time (In re: Murray Energy Corp., 2015 BL 180996 (D.C. Cir. 2015) ).
“It's kind of an ironic result of the Murray litigation that they may have strengthened their defense,” Jacob Hollinger, a partner at McDermott Will & Emery, told Bloomberg BNA.
Adding the new interpretation to the final rule rather than in a court brief prepared by the Justice Department should give the EPA stronger legal footing in future challenges to the Clean Power Plan, Revesz said.
“The Justice Department's views about plausible interpretations are not entitled to deference. The agency's views are entitled to deference,” he said.
States Seek Quick Court Action
States and utilities opposed to the EPA's Clean Power Plan are urging federal appellate judges to rehear challenges to the rule now that it is final, a step the agency opposes (In re Murray Energy Corp., D.C. Cir., No. 14-1112, motions filed 8/6/15).
The EPA and petitioners traded dueling motions on the D.C. Circuit Aug. 6. Fourteen states led by West Virginia Attorney General Patrick Morrisey as well as mining firm Murray Energy Corp., power company Peabody Energy Corp. and the Utility Air Regulatory Group, a power industry trade group, argued in an Aug. 6 court filing that the EPA's requirement that states make an initial submission of their state plans to meet the required carbon dioxide emissions reductions by Sept. 6, 2016, necessitates the court act quickly to review the rule. D.C. Circuit had previously dismissed legal challenges to the rule as premature, because it was not yet final.
The EPA in an Aug. 6 response opposed the petitioners' request that the court withhold issuing its mandate in the underlying decision, because the judges have already determined they lack jurisdiction.
Fourteen states have asked the D.C. Circuit to rehear challenges to the Clean Power Plan (151 DEN A-5, 8/6/15).
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Industry, States Set to Fight EPA Greenhouse Gas Rules
Aug 9, 2015 | The Wall Street Journal
By Brent Kendall and Amy Harder
Industry representatives and a group of state attorneys general are preparing to file lawsuits soon to challenge Obama administration rules requiring significant cuts in power-plant carbon emissions.
The move, expected in the coming weeks, would open up a legal battle by contesting the authority of the Environmental Protection Agency on a wide range of grounds, some of them little explored by the courts.
The EPA issued the regulations last week under a seldom-used section of the Clean Air Act. The agency also is confronting a legislative oddity from 1990, when Congress updated the clean-air law but inadvertently enacted differently worded House and Senate amendments that are relevant to the EPA’s carbon rules. How courts interpret the amendments could determine whether the administration’s power-plant rules survive.
Additional legal challenges will focus on whether the agency exceeded its powers by pushing utilities to shift to cleaner forms of energy instead of just focusing on pollution controls at fossil-fuel-fired power plants.
“There are definitely novel issues in this case,” said Tim Profeta, director of Duke University’s Nicholas Institute for Environmental Policy Solutions.
The paucity of legal precedent on the Clean Air Act provision behind the carbon rules, known as Section 111(d), has some upside for the EPA, giving it flexibility to be creative with power-plant oversight, Mr. Profeta said. “The challenge, of course, is [that] without decades of precedent there is some question about how courts will apply it. It’s a two-edged sword,” he said.
The EPA rules, in the works since 2013 and the cornerstone of President Barack Obama’s climate agenda, call for a 32% cut in power-plant carbon emissions by 2030 based on emissions levels of 2005.
“The legal foundation for this rule is laid out in great detail, we have responded to comments in a transparent way and we are confident that it is consistent with the law,” EPA spokeswoman Melissa Harrison said.
The EPA has used the law’s 111(d) provision only a handful of times since it was enacted in 1970, and never for a pollutant on the scale of carbon dioxide. The EPA in the regulations said lawmakers meant the provision to fill gaps in other clean air programs by covering “a wide range of air pollutants—including ones that Congress may not have been aware of at the time it enacted the provision.”
Challengers say Congress never intended the provision—which requires states to devise pollution-reduction plans—as a sweeping grant of power to the EPA.
“We believe in this final rule the EPA is trying to convert itself from an environmental regulator to a central planning authority of states’ energy economies,” said West Virginia Attorney General Patrick Morrisey, whose office is leading a coalition of states that plan to challenge the rules in court.
Mr. Morrisey said he hopes to persuade 20 or more states to join the coming lawsuit, and anticipates filing related litigation challenging concurrent EPA rules for future power plants. He also said the state was working with coal miners and business allies that also are planning lawsuits.
Another group of states, led by New York and Massachusetts, support the regulations and pledged to back the EPA in court.
The differing House and Senate amendments from 1990, which address potential double regulation, could be crucial to the case. Challengers say the amendments mean the EPA’s carbon rules are barred because the agency already regulated power plants under a different section of the law for different pollutants.
The EPA disagrees and says the amendments mean the exclusion doesn’t apply when the agency is regulating a different pollutant than what it regulated previously.
The EPA’s final rules included some changes from the original 2014 proposal that could help it defend against certain lines of attack.
For example, the agency removed a component focusing on energy efficiency in homes and businesses from its formula on targeted emission reductions. Utilities had expressed concern, telling the EPA they can’t control how efficient customers are with their electricity. The agency acknowledged in the final rule that the energy-efficiency component didn’t fit within its traditional implementation of the Clean Air Act.
“It’s fair to say that was a place that would have attracted a lot of legal fire,” said Sean Donahue, a Washington, D.C., environmental lawyer who has been working with the Environmental Defense Fund to support EPA’s position in court.
An early test will come when challengers ask a court to block implementation of the carbon rules while the litigation proceeds. Courts consider several factors when deciding whether to grant such requests, including whether the challengers are likely to win and whether they will be irreparably harmed if the rules go into effect during the court battle.
The EPA’s supporters point out the agency gave states two extra years to comply, undermining the case for a stay.
Mr. Morrisey, the West Virginia attorney general, said states need a stay because they are required to begin developing plans now for cutting emissions.
Challenges to the EPA regulations go straight to the U.S. Court of Appeals for the District of Columbia Circuit, a court that regularly reviews government regulations. A final legal decision, possibly after appeals to the Supreme Court, could come after Mr. Obama leaves office.
In the run-up to the legal battle there have been some twists that could factor into the case. One came when the Supreme Court in June upheld the legality of nationwide health insurance subsidies. While the Obama administration won the case, the court declined to give deference to the administration’s interpretation of an ambiguous provision in the Affordable Care Act.
Lawyers close to the power-plant case believe challengers will try to use the ruling to convince judges they don’t owe deference to the EPA, at least on how to interpret the House and Senate amendments.
The Obama EPA for several years built a winning streak in the courts, including on its earlier rules limiting greenhouse-gas emissions from automobiles. The agency, however, recently has suffered two notable setbacks.
The Supreme Court in June ordered the EPA to reconsider rules requiring power plants to cut mercury emissions, because the agency didn’t properly consider the cost. And last year, the high court faulted the EPA for claiming power under a greenhouse-gas permitting program to regulate small emitters in the future, a ruling challengers plan to cite in the new case.
“Over the past six years, the courts have upheld the EPA’s air rules far more often than not,” said the EPA’s Ms. Harrison. She also said a 2011 Supreme Court ruling made clear the agency had authority under another section of the Clean Air Act to limit carbon pollution from facilities like power plants.
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Pallone: Democrats Seen Supporting House Energy Bill
Aug 10, 2015 | BNA Daily Environment Report
By Ari Natter
Energy legislation being crafted in the House is likely to garner plenty of Democratic support when it reaches the House floor, Rep. Frank Pallone (D-N.J.), the top Democrat on the House Energy and Commerce Committee, said.
Bipartisan support for the bill, which was approved by voice vote in the Subcommittee on Energy and Power in July, is expected to hold when it reaches the floor, Pallone said in a C-SPAN interview that aired Aug. 7.
“I'm pretty confident that if the committee can vote out a bill that is bipartisan that the same thing will happen on the floor, and it will attract votes on both sides of the aisle,” he said.
Pallone said recent collaboration between Democrats and Republicans on legislation (H.R. 2576) to update the 1976 Toxic Substances Control Act that passed in June on a 398-1 vote was expected to continue on the energy bill.
“We do have that as an example of where we can move,” Pallone said. “I think we can come together and do something that is pretty good.”
The legislation, which includes measures that would streamline the federal citing process for interstate natural gas pipelines and allow the Energy Department to take certain measures during “grid security emergencies,” was stripped of more controversial provisions that had been included in earlier drafts (141 DEN A-13, 7/23/15).
Negotiations on more thorny measures, such as language that would have blocked the DOE from implementing energy efficiency standards for furnaces or repealed a 2007 law requiring federal buildings to phase out the use of fossil fuels by 2030, are ongoing.
“It's going to get more substance,” Rep. Fred Upton (R-Mich.), the chairman of the full committee, said in July, characterizing the subcommittee-passed version as “bare bones.”
Bill Expected to be Broadened
Among the areas likely to be addressed in the beefed up legislation are pipeline safety and security of the nation's electric grid, Upton said, though he added language expediting the Energy Department's approval process for liquefied natural gas exports was unlikely to be in the final bill.
That provision, which is supported by organizations representing natural gas producers such as Cabot Oil & Gas Corp. and Range Resources Corp., has faced opposition from committee Democrats and environmental groups.
“There is no question that the Republicans on our committee want to do an energy infrastructure and efficiency bill, and I think we can come together and do something that is pretty good,” Pallone said.
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EPA Questions Cross-State Ruling's Effect on Settlement
Aug 10, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency is seeking comment on whether a recent federal appeals court decision on state emissions budgets under the agency's cross-state air pollution rule has any effect on a proposed settlement with the Sierra Club over interstate pollution from Texas.
The proposed consent decree calls for the EPA to act by Feb. 22, 2016, either to determine that an existing federal implementation plan satisfies Texas's “good neighbor” obligations under the 1997 national ambient air quality standards for ozone or to promulgate a new federal plan that fulfills those requirements. The settlement would resolve a claim by the Sierra Club that the EPA has not carried out a nondiscretionary duty under the Clean Air Act to promulgate an adequate federal plan for Texas (Sierra Club v. EPA, D.D.C., No. 1:10-cv-1541, partial consent decree filed 7/27/15).
The good neighbor provision requires states to address emissions that cross state lines and either contribute significantly to nonattainment or interfere with maintenance of national air standards in any downwind areas in other states.
Texas is one of the states covered by the cross-state air pollution rule (RIN 2060-AP50), which set limits on power plant emissions of sulfur dioxide and nitrogen oxides in 28 states. However, the EPA determined when it promulgated the cross-state rule that Texas's inclusion may not be sufficient to address the state's statutory obligations with respect to the 1997 ozone standards.
The EPA and the Sierra Club entered the partial consent decree with the U.S. District Court for the District of Columbia on July 27, one day before the U.S. Court of Appeals for the District of Columbia Circuit ruled that the emissions budgets under the cross-state rule impermissibly overcontrolled power plant emissions in Texas and 12 other states EME Homer City Generation LP v. EPA, 2015 BL 239912, D.C. Cir., No. 11-1302, 7/28/15; 145 DEN A-6, 7/29/15).
The EPA on Aug. 10 will open a 30-day public comment period on the proposed consent decree, including whether the D.C. Circuit's decision in EME Homer City Generation LP v. EPA should “in any way affect” whether the EPA should move ahead with the terms of the consent decree. Comments, which will be accepted until Sept. 9, can be filed at http://
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Climate Fight Shifts To Courts
Aug 9, 2015 | The Hill - E2 Wire
By Timothy Cama
States, energy companies and business groups are preparing to sue the Obama administration over its new climate rule, viewing it as their bet shot at stopping the regulations while President Obama is still in office.
With Congress largely powerless to stop the rule, opponents of Obama’s push say the court system is their only hope at beating back the carbon limits until a new president takes over the Oval Office in 2017.“That is the most viable pathway by which the rule will be stopped during the Obama administration, because whatever the Congress does, he could veto,” said William Yeatman, a fellow at the conservative Competitive Enterprise Institute.
Given the high stakes of the fight, the litigants are nearly certain to appeal the case all the way to the Supreme Court.
More than a dozen states joined energy interests earlier this year in an attempt to block the proposed carbon limits for power plants. While that effort failed, the dry run helped the litigants sharpen their arguments for the bigger battle to come.
Their arguments will rest on whether the Environmental Protection Agency’s (EPA) actions fall in line with the Clean Air Act and the Constitution.
Opponents of the rule believe strongly that the EPA stepped out of line, while the agency and its allies are confident that the courts will uphold it as a lawful use of executive power.
“I do believe the rule, as finalized, suffers from a number of legal infirmities,” said Yeatman, whose group is likely to join the litigation on behalf of the challengers.
Sixteen states and the National Mining Association have formally asked the EPA to delay implementation of the rule while the courts consider arguments, which could stretch for years.
They are soon likely to ask the Court of Appeals for the District of Columbia Circuit to immediately stop the EPA from implementing the rules. For that to happen, the litigants will have to prove that they will suffer irreparable harm without such a stay, and that they are likely to win the case.
The legal arguments against the rule generally fall into three categories: that the EPA is violating constitutional limits on federal power; that the Clean Air Act prohibits “double regulation” on power plants whose other emissions are already regulated under another section of the law; and that the EPA lacks authority to regulate parts of the electric grid that are outside of power plants.
The constitutional argument has been made most forcefully by Larry Tribe, a Harvard University law professor who once mentored President Obama and who has worked for Peabody Energy Corp.
“Burning the Constitution of the United States, about which I care deeply, cannot be part of our national energy policy,” Tribe told the House earlier this year.
He later made similar arguments to the Court of Appeals for the District of Columbia Circuit.
Defenders of the rule say that the constitutional claims have little impact on court proceedings, which more often rely on interpretations of statute.
“I think those arguments have not been made persuade the court, they’ll be made to help the political process,” said Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law. “They just allow Sen. [Mitch] McConnell [R-Ky.] to tell governors that a liberal authority like Larry Tribe is on their side.”
The argument over “double regulation,” meanwhile, was central to the coal mining company Murray Energy Corp.’s preemptive challenge of the rule.
When Congress last updated the Clean Air Act in 1990, the Senate passed an amendment to prohibit regulating the same emissions from the same sources using two provisions in the law. But a separate House amendment appears to prohibit regulating any two kinds of pollutants from the same sources, which would render the carbon rules illegal.
Strangely, both versions were passed and signed into law, a phenomenon that has been referred to as a “glitch.” In 2012, the EPA put into place rules limiting emissions of mercury and other toxic air pollutants from power plants.
“By the plain terms of the Clean Air Act, as interpreted by the Supreme Court and by EPA itself, this action foreclosed EPA from mandating state-by-state emission standards for these same sources,” Murray told the D.C. Circuit Court.
The EPA says that the House version can be reasonably interpreted to allow the carbon rules. It argues that the law only prohibited double regulation of hazardous pollutants like mercury.
“The government just has a much more sensible argument on its authority,” said Jody Freedman, a Harvard law professor who once worked in the White House under Obama.
“It makes eminent sense,” she said of the EPA’s interpretation.
Still, opponents in Congress and across the country have stuck to the double regulation issue, seeing it as one of their most powerful arguments.
Lastly, opponents have attacked the sweeping nature of the rule. The EPA set its emissions standards for each state based, in part, on adding renewable energy or other low-emitting forms of power to the electric grid, replacing higher-emitting options like coal.
States say that the Clean Air Act does not allow such “beyond the fenceline” regulations.
“This final rule adopts a radical, unprecedented regime, transforming EPA from an environmental regulator into a central planning authority for electricity generation,” West Virginia Attorney General Patrick Morrisey, who is leading a fight against the rules by 16 states, said in a statement.
In a formal request to delay the rule, Morrisey called the approach “novel” and “unlawful in numerous respects.”
Again, the EPA foresaw the argument and tried to preempt it, saying in its regulation that it is completely reasonable to look at entire electrical grids for regulatory purposes.
“It’s completely economically right and from an engineering perspective right to see the industry as able to do these things across the grid,” Freedman said.
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