Preview Newsletter
ACC PM
-
(ACC Mentioned) EPA IG To Evaluate Antimicrobial Testing Program
Aug 28, 2015 | InsideEPA
EPA's Inspector General (IG) has announced the launch of an evaluation of the Office of Chemical Safety and Pollution Prevention's (OCSPP) antimicrobial testing program, which reviews antimicrobial pesticides used to disinfect hospitals to ensure that products the agency registers for use meet EPA's efficacy standards. -
California Consults on Toxicity of Seven Substances
Aug 28, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (OEHHA) has initiated a consultation on seven substances. -
California Considers Diaminotoluene Prop 65 Listing
Aug 28, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (OEHHA) is seeking public comments on the possible removal of diaminotoluene (mixed) from Proposition 65's list of substances known to the state to cause cancer. -
WHOA!(TUS)
Aug 28, 2015 | Politico Morning Energy
EPA's Waters of the U.S. rule has been blocked from taking effect today - at least in some places. -
EPA Water Rule Takes Effect in Some States
Aug 28, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) started enforcing its controversial water pollution jurisdiction rule Friday in all but 13 states. -
North Dakota Federal Judge Blocks Waters Rule, Suggests States Will Win
Aug 28, 2015 | PoliticoPro
By Jenny Hopkinson
A federal judge in North Dakota has granted a request from 13 states for an injunction on EPA’s Clean Water Rule, blocking the measure from taking effect Friday. -
EPA Limits Scope Of Ruling Blocking CWA Jurisdiction Rule To 13 States
Aug 28, 2015 | InsideEPA
By Bridget DiCosmo
EPA is limiting the scope of the federal district court ruling blocking implementation of its Clean Water Act (CWA) jurisdiction rule to the 13 states involved in the suit that resulted in the order, saying it will apply Bush-era guidance on the law's reach in those states even as it implements the Obama administration's rule in all other states. -
Judge Throws Major Obama Rule into Doubt
Aug 28, 2015 | E&E - Greenwire
By Annie Snider and Jeremy Jacobs
The legal and practical morass surrounding the Obama administration's controversial water rule became more muddied yesterday when a federal judge blocked its implementation in 13 states just hours before it was set to go into effect. -
Sen. Fischer to Lead Field Hearing on Ozone Proposal
Aug 28, 2015 | E&E - Greenwire
By Amanda Peterka
Sen. Deb Fischer (R-Neb.) next week will host an Environment and Public Works Committee field hearing on U.S. EPA's proposal to tighten the national ozone standard. -
EPA Sends Refinery Air Rules For White House Review
Aug 28, 2015 | InsideEPA
EPA has sent its package of revised refinery emissions “residual risk” rules for White House Office of Management & Budget (OMB) pre-publication review, a mandatory step prior to publication of the regulations that are expected to tighten limits on the sector's air toxics and its disposal of waste gases through flaring. -
EPA Submits Refinery Emissions Rule for White House Review
Aug 28, 2015 | E&E - Greenwire
By Amanda Peterka
U.S. EPA yesterday sent its final rule to stem toxic air emissions from refineries to the White House for review. -
California's Congressional Dems Push for State Climate Bills
Aug 28, 2015 | The Hill - E2 WIre
By Devin Henry
Democrats in the California congressional delegation are urging state lawmakers to pass two sweeping environmental bills this legislative session. -
Methane Leaking From Natural Gas Operations Underestimated
Aug 28, 2015 |
By Jeff Johnson
A new study finds methane is leaking at surprisingly high rates from a mostly unaccounted for part of natural gas operations—facilities that collect, compress, and process natural gas for pipeline distribution after drilling and hydraulic fracturing (Environ. Sci. Technol. 2015, DOI: 10.1021/acs.est.5b02275). -
On Energy, Obama’s Got No Friends In Alaska
Aug 28, 2015 | National Journal
By Jason Plautz
When President Obama visits the Alaskan Arctic this weekend, he'll be greeted by a familiar face: Frostpaw the Polar Bear. -
Dedicating Time and Resources to Safety on Our Nation’s Trains
Aug 28, 2015 | The Washington Post
By The Editorial Board
Come January, your commuter train might stop running. That’s because railways across the country might have to suspend operations should they fail to meet an end-of-year congressional deadline for installing safety technology — a possibility that is looking increasingly likely for many stretches of rail, according to a recent federal report.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Energy and Environment News
Transportation News
-
(ACC Mentioned) EPA IG To Evaluate Antimicrobial Testing Program
Aug 28, 2015 | InsideEPA
EPA's Inspector General (IG) has announced the launch of an evaluation of the Office of Chemical Safety and Pollution Prevention's (OCSPP) antimicrobial testing program, which reviews antimicrobial pesticides used to disinfect hospitals to ensure that products the agency registers for use meet EPA's efficacy standards.
Jeffrey Harris, director of the IG's Toxics, Chemical Management and Pollution Prevention Evaluations division, announced the project in an Aug. 26 memo to OCSPP Assistant Administrator Jim Jones. “The [IG]’s objective is to determine whether the Antimicrobial Testing Program ensures the efficacy of EPA-registered hospital sterilants, disinfectants and tuberculocides,” the memo says, but does not further explain the review.
EPA recently proposed guidelines for data requirements for new antimicrobial products, as promised in asettlement agreement over a lawsuit brought in 2013 by the chemical industry association American Chemistry Council. The lawsuit and guidelines address a larger scope of antimicrobial products than just hospital sterilizers, such as wood preservatives and anti-fouling agents. Comments on the proposal are due Aug. 31.
-
California Consults on Toxicity of Seven Substances
Aug 28, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (OEHHA) has initiated a consultation on seven substances. Their status as reproductive or developmental toxicants on the state's Proposition 65 list is being considered.
The state's Proposition 65 Developmental and Reproductive Toxicant Identification Committee (DART IC)will discuss the substances on 9 November. They are:methyl-n-butyl ketone;2,5 hexanedione;nickel;pentachlorophenol;perfluorooctanoic acid (PFOA);perfluorooctane sulfonate (PFOS); andtetrachloroethylene.
Methyl-n-butyl ketone was added to the Prop 65 list in 2009 via the Labor Code mechanism. Subsequent changes to the Osha regulation – on which the listing was based – have called into question its status as a reproductive toxicant. Since 2014, the substance – along with its metabolite 2,5 hexanedione – has been under further review (21 March 2014).
As part of this process, the OEHHA has released for public comment hazard identification materials supporting the reconsideration of methyl-n-butyl, and the listing of its metabolite, as substances known to the state to cause reproductive toxicity.
The remaining five substances were found in 2007 to have had “relevant data” when subjected to an epidemiologic data screen. However there was insufficient human data at that time for them to be selected for preliminary toxicological evaluation.
Following the November meeting, DART IC will advise the OEHHA on whether to prioritise any of these substances for the development of hazard identification materials. It will not determine the five substances' listing status at the meeting.
The public consultation on all seven substances is open until 12 October.
-
California Considers Diaminotoluene Prop 65 Listing
Aug 28, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (OEHHA) is seeking public comments on the possible removal of diaminotoluene (mixed) from Proposition 65's list of substances known to the state to cause cancer.
Diaminotoluene (mixed) was listed under Prop 65 in 1990. This was based on its classification by the EPA as a group B2 “probable” carcinogen. The agency's basis document said the carcinogenicity rating applied to all isomers of diaminotoluene. However it also indicated that the evidence of carcinogenicity was from the 2,4-diaminotoluene isomer.
A 2014 petition to the OEHHA called for a reconsideration of the listing.
The Carcinogen Identification Committee (CIC) will determine on 4 November whether the substance should remain on the Prop 65 list. It will also decide if diaminotoluenes as a group, or any of its five isomers, should be listed.
The deadline for comments is 7 October.
-
Aug 28, 2015 | Politico Morning Energy
EPA's Waters of the U.S. rule has been blocked from taking effect today - at least in some places. According to a statement from the agency, the injunction only applies to the 13 states that were subject to the specific suit - Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Everywhere else will be subject to the new rule.
The ruling late Thursday by a federal judge in North Dakota granting a preliminary injunction on the measure puts that court squarely at odds with federal courts in Georgia and West Virginia. Judges in those states found that the U.S. Court of Appeals has jurisdiction over the suit. Read the ruling from North Dakota is here: http://politico.pro/1JzBqcG
So what now? The fight will move to a federal judicial panel, which will decide whether to grant a request from EPA to consolidate several lawsuits in the U.S. Court of Appeals for the Sixth Circuit and then move that lawsuit to the U.S. District Court for the District of Columbia. States and industry groups strongly oppose that move, as none of the lawsuits have been filed in the D.C. circuit and letting the case go ahead in several states could help draw the attention of the Supreme Court. The panel will take up the issue at its Oct. 1 meeting in New York City: http://1.usa.gov/1KitxgM
-
EPA Water Rule Takes Effect in Some States
Aug 28, 2015 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) started enforcing its controversial water pollution jurisdiction rule Friday in all but 13 states.
Friday marks 60 days after the rule, known as the Clean Water Rule, was published in theFederal Register and the day that the agency planned to start enforcement along with the Army Corps of Engineers.
In response to a petition from 13 states, a North Dakota federal judge temporarily blocked the rule’s implementation late Thursday, ruling that the states would likely suffer if it took effect and that they are likely to succeed when their underlying lawsuit against the rule is decided.
But the EPA is interpreting the North Dakota decision to apply only in the states involved in the litigation.
“The Clean Water Rule is fundamental to protecting and restoring the nation’s water resources that are vital for our health, environment, and economy,” EPA spokeswoman Melissa Harrison said. “EPA and the Department of the Army have been preparing to implement the rule on the effective date of August 28.”
The preliminary injunction, Harrison said, applies only in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
“In all other respects, the rule is effective on August 28,” she said. “The agencies are evaluating these orders and considering next steps in the litigation.”
That interpretation is at odds with statements from both opponents and supporters of the regulation, which declares that small waterways such as streams and wetlands are subject to pollution-control rules under the Clean Water Act.
Rep. Jason Chaffetz (R-Utah), chairman of the House Oversight Committee, said the injunction is a big win for states’ rights.
“I am pleased that the arbitrary and subjective guidelines imposed by the EPA's [waters of the United States] rule will no longer go into effect today,” he said in a statement.
“This ruling is an important check on an administration that continues to overreach in its authority. Such flawed policy should never see the light of day.”
The National Wildlife Federation also seemed to believe that the entire rule had been blocked.
“An extensive body of science definitively proves the connections between these smaller waters and larger rivers, lakes and bays. This sound science, as required under the Clean Water Act, underpins the rule and will ensure that it is affirmed in the courts,” said Collin O’Mara, the group’s president.
“On behalf of fish, wildlife, and all Americans who love the outdoors, we will work tirelessly to ensure that these critical streams and wetlands are protected,” he said.
-
North Dakota Federal Judge Blocks Waters Rule, Suggests States Will Win
Aug 28, 2015 | PoliticoPro
By Jenny Hopkinson
A federal judge in North Dakota has granted a request from 13 states for an injunction on EPA’s Clean Water Rule, blocking the measure from taking effect Friday.
In an 18-page opinion issued late today, Chief Judge Ralph Erickson of the U.S. District Court for North Dakota found that because the rule “would encompass virtually all EPA actions under the Clean Water Act,” and not just permitting procedures, the law gives original jurisdiction over the measure to the district courts.
Erickson further added that “the states are likely to succeed on their claim” as “it appears likely that the EPA has violated the Congressional grant of authority in its promulgation of the rule at issue.” EPA may also have failed to comply with federal rulemaking statues, he said.
The move granting the injunction followed a pair of opinions from district courts in other states that the suit needed to be addressed by an appellate court.
In a six-page opinion flied late today, Chief Judge Lisa G. Wood of the U.S. District Court for the Southern District of Georgia, denied an injunction request by 11 states, saying jurisdiction over the case belongs in the U.S. Court of Appeals. The opinion mirrored conclusions reached Wednesday in a West Virginia federal court.
-
EPA Limits Scope Of Ruling Blocking CWA Jurisdiction Rule To 13 States
Aug 28, 2015 | InsideEPA
By Bridget DiCosmo
EPA is limiting the scope of the federal district court ruling blocking implementation of its Clean Water Act (CWA) jurisdiction rule to the 13 states involved in the suit that resulted in the order, saying it will apply Bush-era guidance on the law's reach in those states even as it implements the Obama administration's rule in all other states.
The decision is likely to lead to inconsistent application of the rule across the United States, as the agency will be using different tests for jurisdiction in the 13 states compared to what critics say is the more expansive view of the CWA established in EPA's rule that took effect Aug. 28. But at least one legal observer says there is precedent for the agency adhering to an adverse ruling on a CWA policy in affected states while using another policy elsewhere.
EPA's plan adds more confusion to significant uncertainty over lawsuits against the rule, with a fight unfolding over whether appellate or district courts have jurisdiction to hear the challenges to the rule and more than half the states, industry groups and environmentalists filing challenges in multiple circuits.
U.S. District Court for the District of North Dakota Southeastern Division Judge Ralph Erickson ruled Aug. 27 to immediately block EPA and the Army Corps of Engineers from implementing the rule.
In a statement, an agency spokeswoman says that for the 13 states that challenged the rule in the district court case North Dakota, et al. v. EPA, the agency will continue to apply existing 2008 regulatory guidance for determining CWA jurisdiction while beginning to implement the new rule in the other states.
The states in which EPA will apply the earlier guidance are: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
“In all other respects, the rule is effective on August 28,” EPA says in the statement. “The Agencies are evaluating these orders and considering next steps in the litigation,” referencing the North Dakota ruling and also rulings from two other district courts that denied requests for injunctions to block the rule.
Earlier this week, United States district courts in Georgia and West Virginia agreed with the agencies that legal challenges to the rule could only be brought in the appellate courts and therefore denied the requests for preliminary injunction. A host of consolidated appeals challenges are pending the U.S. Court of Appeals for the 6th Circuit, where EPA and the Corps claim any challenges to the rule must be heard.
U.S. District Court for the Northern District of Virginia Judge Irene Keeley Aug. 26 dismissed without prejudice litigation over the rule in Murray Energy Corporation v. EPA, et al., finding that the court lacks jurisdiction for mining company Murray Energy's challenge to the rule. Keeley also said she lacks jurisdiction to decide whether to grant a motion from the energy company seeking a preliminary injunction.
Separately, U.S. District Court for the Southern District of Georgia's Brunswick Division Judge Lisa Wood issued an Aug. 27 decision rejecting Georgia's request in State of Georgia v. EPA for an injunction halting the rule.
Judge's Order
But the district court in North Dakota, in an Aug. 27 opinion and order by North Dakota's Erickson, asserts the district court's authority to hear the rule over the appellate court.
The judge said, “Original jurisdiction is vested in this court and not in the court of appeals,” Erickson concludes he has jurisdiction to hear the suit because only CWA rules that establish effluent limits and “other limitations” must be heard in appeals court, and EPA's rule is not an “other limitation,” as it only defines waters of the United States.
EPA and the Corps published the final rule June 29. It is aimed at clarifying CWA jurisdiction in the wake of 2001 and 2006 Supreme Court rulings that creating confusion on when smaller waters are subject to the water law because of water quality effects of downstream waters. The rule adopts language from the 2006 ruling inRapanos v. United States in which Justice Anthony Kennedy said in a concurring opinion that wetlands, whether "alone or in combination with similarly situated lands in the region," pose a "significant nexus" and are jurisdictional when they "significantly affect the chemical, physical, and biological integrity" of downstream, traditionally navigable waters.
By contrast, the plurality opinion in Rapanos written by Justice Antonin Scalia held that only "relatively permanent" waterbodies that connect to traditional navigable waters and wetlands that have a "continuous surface connection" to such relatively permanent water bodies, are jurisdictional under the water law.
The rule adopts the language from the Kennedy test, finding that tributaries and "adjacent waters" share a significant nexus with downstream waters and are jurisdictional, and identifying specific types of other waters, such as prairie potholes, that could share a significant nexus to be assessed on a case-by-case basis.
Erickson warned that the rule oversteps the Kennedy language, however, writing in the order that “The Rule here likely fails to meet this standard,” he writes, finding that the rule likely violates the CWA and the Administrative Procedure Act. The order indicates that EPA's definition is overly broad, saying, “The Rule allows EPA regulation of waters that do not bear any effect on the 'chemical, physical, and biological integrity' of any navigable-in-fact water.”
Legal Uncertainty
But EPA's decision to the apply the rule everywhere but the 13 states that participated in the litigation may create even greater uncertainty, given that the 2008 guidance has long been said to be difficult to implement in the field and leaves regulators making decisions about waters' jurisdiction on a largely case-by-case basis.
The decision comes after EPA recently launched a Clean Air Act rulemaking to exclude adverse appellate court rulings on its air policies from applying nationwide. Some observers have said that proposal might lead to uneven enforcement of the air law, as the plan appears to give agency regions broad discretion to respond to such rulings absent any guidance from headquarters on a uniform response.
But the agency's decision to narrow the application of the adverse CWA ruling to the states involved in that suit is not an unprecedented one, according to at least one legal observer.
Jonathan Adler, of Case Western University School of Law, in an Aug. 28 article on the Washington Post's website that, “This will create the somewhat incongruous (but hardly unprecedented) situation in which the scope of asserted federal regulatory jurisdiction will be more expansive and more well-defined in some states than in others.”
Adler cites as an example of differing applications of EPA water policies the 4th Circuit's 1993 ruling to vacate EPA and the Corps' regulation asserting jurisdiction over waters and wetlands based on the presence of migratory birds, later upheld by the Supreme Court in Solid Waste Agency of Northern Cook Country v. EPA (SWANNC).
“For several years, until the rule was voided by the U.S. Supreme Court in SWANCC, the EPA and the Army Corps did not apply the rule within the Fourth Circuit, but applied it everywhere else,” Adler writes.
However, National Corn Growers Association President Chip Bowling in an Aug. 28 statement argued that EPA's position is “incorrect” and that the injunction should apply to all 50 states. “Whether the injunction applies to 13 states or all 50, the [CWA] rule will have serious consequences for every farmer and rancher in America,” Bowling said, and urged EPA and the Corps to “withdraw the rule and start this process over.”
Environmentalists' Challenge
In addition to the existing slew of lawsuits, EPA's CWA rule continues to face fresh legal challenges. For example, a coalition of environmental groups including the Waterkeeper Alliance and the Center for Biological Diversity filed suit over the policy Aug. 27 in the U.S. District Court for the Northern District of California's San Francisco Division.
“Plaintiffs support those portions of the Final Rule that maintain and clarify long-standing protections of tributary streams, wetlands, and other waters whose regulatory status has been thrown into doubt by a series of recent Supreme Court decisions on the scope of Clean Water Act jurisdiction; for this reason, plaintiffs do not seek vacatur of the Final Rule in its entirety. However, a number of key provisions of the rule are legally or scientifically indefensible, and must therefore be remanded to the Agencies,” according to the filing.
Among the provisions that the environmentalists oppose are those that “impermissibly abandon waters that must be protected under the Clean Water Act as a matter of law; arbitrarily deviate from the best available science; or were promulgated without compliance with the Agencies’ notice and comment obligations. Moreover, the Agencies failed to comply with the National Environmental Policy Act’s [NEPA] procedural requirements, including the requirement to prepare a detailed Environmental Impact Statement [EIS] assessing the impacts of the Final Rule.”
The 13 states pursuing the North Dakota case over the rule also allege that it violates NEPA, though they are raising that argument in a bid to scrap the rule whereas advocates cite it in a push to strengthen it.
The states say that NEPA requires federal agencies to prepare an EIS for “major” federal actions significantly affecting the environment. But they argue that the Corps decided to forgo an EIS for the CWA rule and instead pursued an environmental assessment and finding of no significant impact to the environment. They say this violates NEPA because the final CWA rule qualifies as a “major” agency action.
-
Judge Throws Major Obama Rule into Doubt
Aug 28, 2015 | E&E - Greenwire
By Annie Snider and Jeremy Jacobs
The legal and practical morass surrounding the Obama administration's controversial water rule became more muddied yesterday when a federal judge blocked its implementation in 13 states just hours before it was set to go into effect.
In an 18-page ruling late yesterday, U.S. District Court Chief Judge Ralph Erickson for the District of North Dakota granted a preliminary injunction against U.S. EPA and the Army Corps of Engineers' Waters of the U.S. rule, which redefines which streams and wetlands warrant federal protection under the Clean Water Act.
Erickson ruled that the regulation likely oversteps the Supreme Court's standard for federal authority set in its 2006 Rapanos v. United States decision and that the agencies also appear to have violated Administrative Procedures Act requirements. Although the Department of Justice had focused its arguments opposing the injunction on questions of venue, Erickson found that challengers have a "fair chance of success" on the merits of the case.
"The Rule," Erickson wrote, "allows EPA regulation of waters that do not bear any effect on the 'chemical, physical, and biological integrity' of any navigable-in-fact water."
He also particularly took issue with the breadth of EPA's definition of a tributary in the rule.
Opponents of the water rule quickly hailed the injunction as a victory.
"Judge Erickson's ruling is a significant and rightful win for states' rights. I am pleased that the arbitrary and subjective guidelines imposed by the EPA's WOTUS rule will no longer go into effect today," House Oversight and Government Reform Chairman Jason Chaffetz (R-Utah) said in a statement today. "This ruling is an important check on an Administration that continues to overreach in its authority. Such flawed policy should never see the light of day."
EPA, which said it is still weighing its next legal steps, emphasized that the injunction applies only in the 13 states that were party to the lawsuit heard by Erickson: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming. The agency said yesterday that the 2008 guidance that has been on the books to govern Clean Water Act decisions will remain in effect in those states, while the new rule will proceed today in the 37 other states.
Legal experts and backers of the rule argue that the injunction may only be temporary.
"One way or another, they're going to attack the injunction, you can be sure of that," said Vermont Law School professor Pat Parenteau. "It's just a question of how they're going to play that."
In the meantime, the agencies' approach sets up a difficult situation for regulators on the ground, said Don Riley, a retired major general who previously served as the second in command at the Army Corps of Engineers. His former agency is responsible for the vast majority of on-the-ground calls about which bogs, marshes and creeks are subject to federal regulation.
"I think there's going to be significant confusion among the districts and across the corps, because you could have, in the same corps division, different standards," he said. "What does that poor regulatory chief do?"
Riley, now a senior vice president at the Washington, D.C., firm Dawson & Associates, said the confusion is compounded by the fact that there is fierce disagreement between the corps leaders and their political bosses over the new rule, as was laid out in a pair of inflammatory memos while the rule was undergoing interagency review (Greenwire, July 27).
"If I was a regulator and I had [a jurisdictional determination] on my desk today in one of the other 37 states, I'd be waiting for my boss to tell me what to do, and he'll look to his boss, and it'll go all the way up to headquarters, and you've got this tension between headquarters and the secretary's office," he said. "What was already going to be a slower permitting process is now going to be even longer, and it will frustrate many landowners."
To be sure, there is some precedent for the agencies applying different water regimes in different states.
In 1993, the 4th U.S. Circuit Court of Appeals, which covers Maryland, Virginia, North Carolina, South Carolina and West Virginia, threw out water regulations stemming from the "migratory bird rule."
Those regulations were ultimately completely invalidated by the Supreme Court in 2001. But until then, EPA and the Army Corps applied different regulations to different states.
Notably, the 13 states party to yesterday's injunction include several that stood to be ground zero for changes made in the new rule.
Arid Arizona, New Mexico and Nevada, which were all party to the suit, are covered in dry washes and other streams that flow only after it rains, which face a new standard under the final rule. According to EPA, 94 percent of Arizona's streams are ephemeral.
North and South Dakota, also party to the suit, are pockmarked with prairie potholes, which were often seen as too far from the tributary network to warrant federal protection under the George W. Bush administration guidance but receive special consideration under the new rule (Greenwire, June 1).Conflicting court rulings
The ruling also further complicates an already complex litigation picture for the regulations.
Three other federal district court judges -- in Oklahoma, Georgia and West Virginia -- have declined efforts by challengers, including 11 states, to halt the rule.
Of those three, rulings from judges in Georgia and West Virginia, which also came yesterday, squarely conflict with Erickson on the issue of which court has jurisdiction to hear challenges to the water rule.
EPA and the Army Corps believe the Clean Water Act grants jurisdiction to federal appeals courts, which sit above district courts in judicial hierarchy.
The judges in Georgia and West Virginia agreed yesterday.
The question is whether the water rule constitutes an "effluent limitation" or "other limitation" or directly affects permitting for the challengers in the case. If it does, the Clean Water Act authorizes the cases to go straight to appeals courts, bypassing district courts.
Erickson said it does not and criticized the agencies for taking an "exceptionally expansive" view of those terms in the law.
"The rule has at best an attenuated connection to any permitting process," wrote Erickson, a George W. Bush appointee. "If the exceptionally expansive view advocated by the government is adopted, it would encompass virtually all EPA actions under the Clean Water Act."
U.S. District Court Judge Lisa Godbey Wood squarely rejected that reasoning in her ruling for the Southern District of Georgia yesterday.
"[I]ts undeniable and inescapable effect is to restrict pollutants and subject entities to the requirements of the Clean Water Act's permit program," wrote Wood, another Bush appointee. "Indeed, that is, in part, why the Plaintiffs are suing, and it is part of the harm of which they complain."
U.S. District Court Judge Irene Keeley for the Northern District of West Virginia used similar reasoning yesterday in rejecting an injunction request by Ohio-based Murray Energy Corp. (Greenwire, Aug. 27).
In light of the conflicting rulings, environmentalists who support the rule have urged patience as the process plays out in courts.
"Consider a recent point of reference: the Affordable Care Act was found to be invalid by some different courts when it was similarly challenged in a number of places," wrote Jon Devine of the Natural Resources Defense Council in a blog post this morning. "At the end of the day, however, it was twice upheld by the Supreme Court, and is now the law of the land."
EPA could appeal Erickson's decision to the 8th U.S. Circuit Court of Appeals, highlighting the rulings from the judges in Georgia and West Virginia.
There are also challenges to the rule filed in eight federal appeals courts. Those cases have already been consolidated to the Cincinnati-based 6th U.S. Circuit Court of Appeals.
Further complicating the picture, a judicial panel on mutidistrict litigation in New York City will consider where those cases should be heard on Oct. 1. EPA is pressing to have lawsuits moved to the U.S. District Court for the District of Columbia, a request the challengers have strongly opposed.
Jonathan Adler, a law professor at Case Western Reserve University who has opposed the Obama administration rule, said that while the conflicting decisions may seem confusing, the rule will eventually be sorted out -- perhaps by the Supreme Court.
"Having a period of time in which the application of EPA's rule is not uniform certainly seems weird," he said, "but it's the sort of temporary situation that we've seen before."Green groups sue
Meanwhile, a subset of environmental groups challenging the rule from the left yesterday filed their complaint, with their own request for an injunction.
The suit, from the Waterkeeper Alliance, Center for Biological Diversity, Center for Food Safety and a number of local environmental groups, was filed in U.S. District Court for the Northern District of California.
The groups have long seen weaknesses in the Obama administration's rule, but their arguments received a boost from the internal Army Corps documents that laid out the concerns from the agency's own experts, which dovetailed with greens in some key areas (Greenwire, Aug. 5).
The lawsuit filed yesterday challenges portions of the final rule, including first-ever geographical limits on jursidiction, exclusion of waters that are in agricultural use from Clean Water Act coverage, and provisions relating to ditches and waste treatment systems under the Administrative Procedures Act and the National Environmental Policy Act.
"Most environmental groups were cautiously optimistic when they saw the proposed rule come out, but there were a number of changes made very late in the process, and almost all of those last-minute changes had the result of shrinking the scope of waters protected," said Jamie Saul, staff attorney and assistant clinical professor at Lewis & Clark Law School's Earthrise Law Center, which is involved with the suit.
Saul said the aim is to "fashion a scalpel-like approach" to cut away portions of the rule that the groups find problematic, while still leaving other portions of it intact. But many legal experts question whether this will be possible and argue the suit could cause the entire rule to be struck down.
Saul said the groups are aware of the danger.
"That's a risk," he said. "That's not our preferred outcome, but we can live with that outcome."
While his groups would prefer to see a more tailored remedy that leaves intact strengthened aspects of the new rule, Saul said, in total, they see more lost than won in the final rule.
"From our view, the final rule here in several important respects is a step back away from what Justice Kennedy would require under the significant nexus analyis," he said. "We certainly prefer the old rule to the new rule as currently written, with all the exclusions and limitations that have been added."
-
Sen. Fischer to Lead Field Hearing on Ozone Proposal
Aug 28, 2015 | E&E - Greenwire
By Amanda Peterka
Sen. Deb Fischer (R-Neb.) next week will host an Environment and Public Works Committee field hearing on U.S. EPA's proposal to tighten the national ozone standard.
The hearing Tuesday will be held in Columbus, Neb., and feature as witnesses representatives from the utility and steel sectors, as well as a local chamber of commerce. A public health professor from the University of Nebraska, Omaha, is also scheduled to testify.
The hearing is likely to focus on expected costs of EPA's proposal, which would lower the national ambient air quality standard for ground-level ozone from 75 parts per billion to between 65 and 70 ppb.
"This rule would require industrial facilities across the country, including many in Nebraska, to install expensive ozone control equipment, limit production, or buy 'offsets,'" according to the hearing announcement from Fischer's office. "Any one of these requirements could stifle economic growth and harm Nebraska families."
EPA is set to choose a final standard by an Oct. 1 court-ordered deadline. According to the Clean Air Act and affirmed by the Supreme Court, EPA is required to set a new standard that adequately shields the public against adverse health effects linked to pollution.
Business and industry groups have urged EPA to retain the 75 ppb limit, arguing that the science is uncertain and the costs of a tighter standard would be too high. Public health and environmental groups, on the other hand, have called on the agency to set a new standard no higher than 60 ppb.
At a June EPW Committee hearing on the ozone proposal, Fischer said she was in favor of clean air but worried that counties and states would not be able to afford a tighter standard (E&E Daily, June 4).
Schedule: The field hearing is Tuesday, Sept. 1, at 10 a.m. CDT at Central Community College in Columbus, Neb.
Witnesses: Russ Baker, environmental and regulatory affairs division manager for the Omaha Public Power District; John Kinter, environmental manager at Nucor Steel Nebraska; Mark Zimmerer, president of the Norfolk Area Chamber of Commerce; and David Corbin, emeritus professor of health education and public health at the University of Nebraska, Omaha.
-
EPA Sends Refinery Air Rules For White House Review
Aug 28, 2015 | InsideEPA
EPA has sent its package of revised refinery emissions “residual risk” rules for White House Office of Management & Budget (OMB) pre-publication review, a mandatory step prior to publication of the regulations that are expected to tighten limits on the sector's air toxics and its disposal of waste gases through flaring.
The rules combine revised new source performance standards (NSPS) for the sector with updates to its air toxics controls in order to comply with a Clean Air Act “risk and technology review” to review those limits eight years after their implementation. EPA sent the rules for OMB pre-publication review Aug. 27 -- a process that typically takes 90 days -- and faces a Sept. 30 judicial deadline for finalizing the regulations.
Industry groups such as the American Petroleum Institute (API) have been critical of the rulemaking, citing a Bush-era rule that found no additional risks from refineries and hence no need to tighten regulations. But the Obama EPA scrapped that rule in early 2009 shortly after President Obama took office.
Despite the industry's concerns, an API official recently expressed optimism that EPA will issue a rule substantially less stringent than the proposed version, in response to industry comments on a host of technical issues.
API and others were especially critical of the agency's measures to ban emergency releases of air pollutants through pressure relief valves, which API said will result in more, not less, flaring. This is at odds with EPA's overall policy of reducing pollution caused by flares, and is also unsafe, industry figures claim.
EPA through measures included in consent decrees reached with refineries and now through regulation is seeking to ensure that flares are operated efficiently and fully combust harmful pollutants rather than release them.
-
EPA Submits Refinery Emissions Rule for White House Review
Aug 28, 2015 | E&E - Greenwire
By Amanda Peterka
U.S. EPA yesterday sent its final rule to stem toxic air emissions from refineries to the White House for review.
The White House Office of Management and Budget received the rule yesterday, kicking off the interagency review, according to the office's website. EPA is aiming to release the final rule at the end of September under a consent decree.
EPA's proposed rule issued in May 2014 encompassed both the New Source Performance Standards and maximum achievable control technology for refineries under the Clean Air Act. The proposal was the result of a 2012 lawsuit by the Environmental Integrity Project and Earthjustice over the agency missing the eight-year deadline to review and revise the new source standards.
The May rule proposed to require refineries to upgrade emissions controls for storage tanks, set new requirements for coking units, and install monitoring and control valves for flares. The rule also would require refineries to monitor concentrations of benzene levels at their fence lines.
There are 142 petroleum refineries considered major pollution sources under the Clean Air Act, as well as seven small area sources, according to EPA. Along with benzene, the rule is meant to address polycyclic aromatic hydrocarbons, nickel and hydrogen cyanide.
Environmentalists have called on EPA to strengthen the proposal in certain areas, including its provisions on fence-line monitoring of pollution and flaring.
The oil and gas industry, however, views the rule as part of an "avalanche" of unnecessary regulations coming down from the Obama administration on the sector, according to Howard Feldman, director of scientific and regulatory affairs at the American Petroleum Institute.
API and American Fuel & Petrochemical Manufacturers submitted extensive joint comments on the rule, their bottom line being that the rule's environmental benefits would not outweigh the costs. The industry has estimated the rule would cost refiners more than $20 billion on top of millions of dollars in annual costs.
At a recent meeting with reporters, Feldman said the industry still had concerns with the fence-line monitoring and flaring requirements.
"Existing refineries right now, the public health is protected with an ample margin of safety. There's not a significantly high risk," he said. "We've already put in the controls. We don't need a whole other layer of significant controls right now."
-
California's Congressional Dems Push for State Climate Bills
Aug 28, 2015 | The Hill - E2 WIre
By Devin Henry
Democrats in the California congressional delegation are urging state lawmakers to pass two sweeping environmental bills this legislative session.
Sens. Dianne Feinstein and Barbara Boxer sent a letter to members of the California Assembly on Wednesday urging them to pass the bills before their legislative session ends next month.
House Democratic Leader Nancy Pelosi and 25 other congressional Democrats endorsed the measures on Friday, as well.
Lawmakers are considering a bill that would codify Gov. Jerry Brown’s (D) climate goals into law and another to cut the state’s oil consumption over the next 15 years.
Both bills passed the state Senate this summer, but the Assembly has yet to consider them. The bills’ boosters hope to the pass them before lawmakers adjourn on Sept. 11.
“We're running out of time to address the climate crisis,” Pelosi said in a statement Friday.
“We need strong leadership at the state and local levels because deniers in Congress are still using snowballs to refute the overwhelming consensus of the global scientific community. I hope my friends in the California legislature can lead by example.”
Brown’s climate goal — aiming for a 40 percent reduction in the state’s greenhouse gas emissions from 1990 levels by 2030 — is one of the most aggressive in the nation. He issued an executive order setting the target in April, but lawmakers hope to enshrine it in California law as well.
Democrats are also pushing a bill to increase renewable energy in the state and cut oil consumption in half by 2030.
The oil and gas industry has pushed back against the bill, warning that it would hurt drivers and businesses in California, as well as the state’s petroleum producers. But Democrats have rebuffed those concerns, and highlighted the legislation’s potential environmental impact instead.
“These visionary bills would set ambitious goals on renewable energy, energy efficiency and reducing our reliance on fossil fuels, building on the success California has already had in protecting public health and creating clean energy jobs,” Feinstein and Boxer wrote in their letter.
-
Methane Leaking From Natural Gas Operations Underestimated
Aug 28, 2015 |
By Jeff Johnson
A new study finds methane is leaking at surprisingly high rates from a mostly unaccounted for part of natural gas operations—facilities that collect, compress, and process natural gas for pipeline distribution after drilling and hydraulic fracturing (Environ. Sci. Technol. 2015, DOI: 10.1021/acs.est.5b02275).
The study found that gathering and processing had methane losses twice that of earlier estimates by the Environmental Protection Agency. “This was the first-ever national study on methane emissions from natural gas gathering facilities,” notes Anthony J. Marchese, a Colorado State University mechanical engineering professor, who led the new study.[+]Enlarge FIELD COLLECTIONSResearchers used ambient measurements of methane and tracer gases to derive methane loss from natural gas gathering and processing operations.Credit: Colorado State University
U.S. natural gas production has shot up by more than 26% over the past 10 years, largely owing to new hydraulic fracturing and horizontal drilling technologies. Natural gas burns cleaner and emits about half the carbon dioxide of coal when used to generate electricity. But methane, the primary component in natural gas, is a potent greenhouse gas when leaked to the atmosphere. The climate change impact of methane is 80 times that of CO2over the first 20 years after leakage and 20 times as potent over a 100-year span. Methane leakage from oil and gas operations is responsible for nearly one-third of all U.S. methane emissions, and EPA estimates that if methane leakage exceeds about 3% of production, the natural gas climate benefit over coal is lost.
Currently, EPA assumes about 1.3% of all methane generated through oil and gas production is lost to the environment and has estimated that about 20% of that comes from gathering and processing operations. “There is not a high level of confidence in EPA’s number,” Marchese says. “The data are old and mostly estimates, coupled with a handful of recent measurements and industry-supplied data.”
In the new work, Marchese and his team sampled ambient methane concentrations at 114 gathering facilities and 16 processing plants in 13 states. The team measured methane and tracer gases near the facilities to determine methane emissions from a given site and used computer methods to extrapolate their measurements to the national scale.
Marchese’s team found methane loss to be nearly twice EPA’s estimate for this sector. The new figures would raise the total methane loss to more than 1.5% of production, Marchese says.
Although the percentage seems small, the amount of gas lost from gathering facilities is valued at $390 million a year, Marchese says, and could provide enough gas to fuel 3.2 million households. “It may be a bitter pill for industry to swallow,” he says, but notes that his study was partially funded by gas companies that want to know about leaks.
Marchese’s study is one of 16 funded and organized by a small group of gas producers and the Environmental Defense Fund, an advocacy group, that are trying to lock down methane loss from all aspects of natural gas production—from exploration to burning in natural gas vehicles. The final report will combine all these data and is expected by year’s end. When completed, Marchese says, the new total loss number “may be north of 2%.” How far north that number goes will determine whether methane retains its perceived greenhouse gas advantage over coal.
Katie Brown, a spokeswoman with Energy In Depth, a petroleum-industry-funded research, education, and outreach organization, stresses that even with the new leakage emissions, the total lost to the environment from the oil and gas system production still makes natural gas a cleaner fuel than coal.
-
On Energy, Obama’s Got No Friends In Alaska
Aug 28, 2015 | National Journal
By Jason Plautz
When President Obama visits the Alaskan Arctic this weekend, he'll be greeted by a familiar face: Frostpaw the Polar Bear.
Although Obama is traveling to Alaska to talk up the administration's work on combating climate change, environmentalists are eager to point out what they see as a hypocritical decision to approve Shell's bid to drill for oil in the Arctic. And they'll use Obama's three-day appearance in the state to shine a spotlight on what they're calling a black mark on his record.
Greens are organizing a rally across the street from a State Department conference in Anchorage where the president will speak Monday. The liberal group CREDO Action is even circulating a video and petition comparing Obama's trip to President George W. Bush's tone-deaf declaration of "Mission Accomplished" in Iraq.
"We want Obama's actions to match his rhetoric on climate change, and that first and foremost means keeping Alaskan oil in the ground," said Rebecca Noblin, Alaska director for the Center for Biological Diversity, which is sending its trademark polar bear costume as part of the rally.
But while environmentalists want the president to clamp down on drilling, Alaska Gov. Bill Walker said he's going to use Obama's visit to push a different message.
"We have an excellent pipeline in Alaska, except it is three-quarters empty," Walker said on a press call Tuesday. "So I'll talk to him about what we need to do to put more oil in the pipeline."
In a letter to Obama, Alaska Republican Sen. Lisa Murkowski urged the president to use his trip to learn about the diverse energy development in the state, but cautioned that "climate change must not be used as an excuse to deprive Alaskans of our best economic prospects."
It all speaks to the tightrope that Obama has had to walk when it comes to energy production, especially in Arctic waters. Green groups don't want to see any drilling, even under conditions that the administration says would make it as safe as possible. And energy boosters in the state say the White House has clamped down too much, especially by setting aside large swaths of the Arctic National Wildlife Refuge as wilderness.
Obama arrives in Alaska on Monday to deliver remarks at a State Department conference on the Arctic, then will spend two more days traveling around the state. In a video announcing the visit, Obama said Alaska provided a "wake-up call" on climate change, and the White House says the trip is part of a month-long push on the issue after the release of the administration's Clean Power Plan.
The state is feeling the brunt of climate change—and Obama could meet with native Alaskans in the Arctic facing the first-hand challenge of sea-level rise.
But Alaska is also ground zero for a massive debate over expanded drilling, as oil companies look to Arctic waters for potentially vast oil fields. The debate kicked into high gear this summer when the Obama administration gave the green light for Shell to start drilling in the Chukchi Sea.
The White House has defended the permit, saying the Interior Department is making sure that the drilling is being done safely. But environmentalists say any movement towards oil production in the Arctic is going too far.DON'T MISS TODAY'S TOP STORIES
“
Exactly what I need as a busy college student."
Samantha, StudentSign up form for the newsletter
"Issuing Shell a permit to drill in the Arctic is going in the opposite direction of things like the Clean Power Plan," said Kirby Spangler, an organizer with Alaska Rising Tide. "It can't be done safely."
Arctic drilling is rapidly becoming a flash point for the environmental movement, especially with the fight over the Keystone XL tar sands pipeline nearing a close. Protesters in Seattle used kayaks to try to block a Shell vessel from leaving port, and protesters have been pushing on major Democrats to speak out against Arctic drilling (and were given a boost when presidential front-runner Hillary Clinton said she was opposed to it).
For Alaskan greens used to living on the fringe of the movement, they're hoping the trip can bring their issues back to the center.
"Normally in Anchorage, we're turning out 100 or 200 people if we're lucky, so it's really hard for us to know what's going to happen," said Spangler, who is helping to put together the rally in Anchorage. "There's a spotlight on us now, and that gives us a chance to point out the injustice of what's being done in the Arctic."
Spangler said organizers are even seeing interest from a variety of groups, including faith-based and indigenous organizations, for protesting the president's visit, a sign of how widespread concerns are about Arctic drilling in the state. The fact that it's the first presidential visit to the Alaskan Arctic offers a unique—and timely—platform.
But Alaskan officials are also eager to make their case. Speaking to reporters, Walker said he was encouraged by what he's heard from Obama, especially after the approval of the Shell permit, but planned to emphasize the need to open up ANWR and other offshore areas.
And drilling backers say they've got their own deep bench of allies. An ad out Thursday from the Arctic Slope Regional Corporation uses the voices of native Alaskans to promote oil and gas development.
"As stewards of the land, we have the most at stake in protecting an environment that is fundamental to our way of life," ASRC president Rex Rock Sr. said in a statement. "We also understand that environmental stewardship does not come at the expense of the responsible development of our natural resources, which is essential to our economic future."
If Obama does weigh in on the drilling controversy, it's unlikely he'd use the trip to make any major announcement. But greens said there's still plenty of room for him to turn his critics back into allies during the week.
"It would be almost a 360 for him to say Shell can't drill any more, but in an ideal world we'd like to hear him say that the best thing we can do to be a leader on climate … is to keep fossil fuels in the ground in the first place," said Marissa Knodel, a climate change campaigner with Friends of the Earth. "He has the authority to stop leasing on federal lands and water. A pledge to do that would be ideal."
-
Dedicating Time and Resources to Safety on Our Nation’s Trains
Aug 28, 2015 | The Washington Post
By The Editorial Board
Come January, your commuter train might stop running. That’s because railways across the country might have to suspend operations should they fail to meet an end-of-year congressional deadline for installing safety technology — a possibility that is looking increasingly likely for many stretches of rail, according to a recent federal report. That’s unacceptable. Congress should extend the deadline, but the railroad systems must earn the extension by showing that they are making progress.
In 2008, Congress passed legislation requiring passenger and freight railroads to implement a communications technology called positive train control (PTC), which keeps trains from speed limit violations and collisions. It set a firm Dec. 31 deadline that the Federal Railroad Administration cannot waive: Congress alone has the power to delay. If it does not, liability concerns may stop trains from operating.
The problem is nicely illustrated by two Washington-area examples: Maryland’s MARC commu ter train service and the Virginia Railway Express (VRE). There are two components to the upgrade. One involves changes to the trains. Those are under the purview of MARC and VRE, and both say they fully expect their systems to be in compliance by the deadline. The second set of modifications, though, have to occur on the tracks. It’s up to Amtrak and the freight carriers who own the miles of rail in each state’s jurisdiction to get that job done. Amtrak has the system in place in the Northeast Corridor and says it will have finished testing by the deadline. The freight carriers, however, are not there yet. Chances are they still will not be in January. That threatens not only Maryland and Virginia commuter rails but also operations on carrier-owned rails throughout the country.
Railroad companies have little excuse not to get into compliance faster. Experts say PTC could have prevented May’s fatal Amtrak crash near Philadelphia. Eight people died there. The National Transportation Safety Board estimates that the technology could have saved 65 more lives between 2004 and 2014. Surely the threat of a standstill in January would push all parties involved to tune up their trains and their tracks. A shutdown would leave 50,000 Maryland and Virginia commuters stranded every day, if not more in other states. Contingency plans to put commuters on buses are hardly an acceptable substitute for mass railway travel.
There is a middle ground. The federal government needs to be able to impose fines and other penalties on delinquent passenger and freight lines, and commuters need to be able to get where they’re going. Congress should revise the 2008 legislation to give railroads more time to come into compliance, with consequences for those who fail to produce concrete plans for immediate improvement and meet milestones along the way.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Energy and Environment News
Transportation News
Add recipients
Suggested