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Global Trade for the Global Good
Oct 9, 2015 | The Hill - Congress Blog
By JB Penn
Last month, members of the United Nations General Assembly formally adopted the 2030 Agenda for Sustainable Development. -
TPP and ‘Dead Rats’
Oct 9, 2015 | The Hill - Congress Blog
By Michael Stumo
The New Zealand Trade Minister Tim Groser said, last weekend, that everyone was swallowing “dead rats” to get the Trans-Pacific Partnership done. -
MacArthur Foundation Declares Nanotechnologist a Genius
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Senate Impasse Over Legislation Renews Doubts About TSCA Reform Vote
Oct 9, 2015 | InsideEPA
By Maria Hegstad
Senate disputes over legislation including energy appropriations and a measure to reauthorize the Land and Water Conservation Fund (LWCF) are preventing a vote on a bipartisan Toxic Substances Control Act (TSCA) reform bill, and it is unclear when senators might debate the legislation after the Senate reconvenes on Oct. 19. -
California Passes Nation’s Strongest Ban on Plastic Microbeads
Oct 9, 2015 | EcoWatch
Yesterday, California Gov. Jerry Brown signed the nation’s toughest ban on personal care products containing plasticmicrobeads, such as toothpastes, soaps and scrubs designed to be rinsed down the drain. -
Three Killed in Blast at Natural Gas Plant in Louisiana
Oct 9, 2015 | The Wall Street Journal
By Alison Sider
Three workers were killed in an explosion and fire Thursday at a natural gas plant in Gibson, La., according to Williams Partners LP, the company that owns the facility. -
Texas Site Catches Fire Again, Prompts Safety Questions
Oct 9, 2015 | E&E - Greenwire
A Texas industrial site Wednesday caught fire for the second time in a week, prompting questions about the safety of workers and the public in the area. -
EPA Spills Water at Another Abandoned Site in Colo.
Oct 9, 2015 | E&E - Greenwire
By Manuel Quiñones
A U.S. EPA crew working at an abandoned mine site in western Colorado spilled roughly 2,000 gallons of water yesterday, according to early reports. -
A note on Cybersecurity Awareness Month
Oct 9, 2015 | The Hill - Congress Blog
By Kenneth E. Bentsen, Jr.
A large-scale cyber attack is one of the most serious threats facing the financial system and the broader U.S. economy. While the probability of such an attack may be low, the impact would be quite large and is not to be ignored. -
When Will We Decide to Hit Back on Cybersecurity?
Oct 9, 2015 | The Hill - Congress Blog
By Peter L. Levin
The recent cyber intrusions into Sony and the U.S. Office of Personnel Management have highlighted to the general public a festering weakness: America’s cybersecurity policy framework is wholly inadequate. -
Appeals Court Halts WOTUS Rule Nationwide
Oct 9, 2015 | E&E - Greenwire
By Robin Bravender
A federal appeals court today halted a high-profile Obama administration rule defining the scope of the Clean Water Act, marking the latest legal blow to the controversial policy. -
Sixth Circuit Puts Controversial ‘Waters of the United States’ (WOTUS) Rule on Hold
Oct 9, 2015 | The Washington Post
By Jonathan H. Adler
This morning a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of a regulation issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers defining the scope of the “waters of the United States” subject to federal regulatory jurisdiction under the Clean Water Act (CWA). -
U.S. Appeals Court Blocks EPA Water Rule Nationwide
Oct 9, 2015 | The Wall Street Journal
By Brent Kendall and Amy Harder
A federal appeals court on Friday issued a nationwide stay blocking a new Environmental Protection Agency regulation that seeks to expand the amount of water and wetlands under federal protection. -
Court Blocks Obama’s Water Rule Nationwide
Oct 9, 2015 | The Hill - E2 Wire
A federal court ruled Friday that President Obama’s regulation to protect small waterways from pollution cannot be enforced nationwide. -
Appeals Court Freezes WOTUS in Blow to Obama Admin
Oct 9, 2015 | E&E - Greenwire
By Robin Bravender and Jeremy Jacobs
Critics of a high-profile Obama administration water regulation are heralding a federal court's decision to block the policy -- at least temporarily. -
6th Circuit Order Blocking EPA CWA Rule Hints At Court Scrapping Policy
Oct 9, 2015 | InsideEPA
By David LaRoss
The U.S. Court of Appeals for the 6th Circuit has issued an order blocking EPA from implementing its Clean Water Act (CWA) jurisdiction rule nationwide while it weighs whether it has authority to hear suits over the rule, though at least two judges suggest if they hear the suit then they will scrap the policy for exceeding EPA's authority. -
Letter to the Ediotr: EPA’s New Ozone Standard Is Science-Based
Oct 9, 2015 | The Wall Street Journal
By Janet McCabe
Your editorial “The Twilight Ozone” (Oct. 2) is a rerun of the long-discredited argument that environmental standards somehow harm the economy. You blindly ignore science, the law and history. -
E&E Daily's Bush Talks Impact of Leadership Uncertainty on Energy Legislation
Oct 9, 2015 | E&E TV
How will yesterday's decision by House Majority Leader Kevin McCarthy (R-Calif.) to drop out of the race for speaker affect the future of energy legislation in the House this fall? -
House Turns Oil Exports Dial to 11
Oct 9, 2015 | PoliticoPro (Morning Energy)
By Eric Wolff
While their leadership crisis continues, House Republicans plans to rally around energy, one of their most frequently unifying policy areas, with a vote on legislation to end decades-old limits on crude exports. -
McCarthy Exit Postpones Elections, Not Export Vote
Oct 9, 2015 | PoliticoPro (Afternoon Energy)
By Jennifer Shutt
House Majority Leader Kevin McCarthy's stunning decision to abandon his bid for speaker threw the Capitol into chaos this afternoon, and caused outgoing Speaker John Boehner to postpone leadership elections and stay in his job until a successor can be found. Jake Sherman, Anna Palmer and John Bresnahan have the story. -
House backs Crude Exports But Short of Veto Override Margin
Oct 9, 2015 | E&E - Greenwire
By Geof Koss
The House today easily passed legislation to end the decades-old ban on crude oil exports but failed to achieve the two-thirds majority needed to override a promised presidential veto. -
Lifting Ban on Crude Oil Exports Will Jumpstart a New Energy Era
Oct 9, 2015 | The Hill - Congress Blog
By Dan K. Eberhart
When an energy bill is introduced in Congress that promises an epic change in the global balance of power, it’s natural that lawmakers, media, and everyday people will debate its merits. -
Oil Regulators Release Improvement Plan for Agency
Oct 9, 2015 | E&E - Energywire
By Debra Kahn
California oil and gas officials released an assessment yesterday of the regulatory flaws that led to oil wastewater being injected into drinkable aquifers for decades. -
Capito Bill Would Clip EPA's Wings on Clean Power Plan -- CBO
Oct 9, 2015 | E&E - Greenwire
By Jean Chemnick
Sen. Shelley Moore Capito's bill to scuttle U.S. EPA's power plant carbon rules would also severely restrict the scope of any replacement rules, the Congressional Budget Office said yesterday. -
Ga. Hammers Ahead on Rule as it Mulls Lawsuit
Oct 9, 2015 | E&E - Energywire
By Kristi E. Swartz
The director of Georgia's Environmental Protection Division told a packed room of electric utility officials, policymakers, clean energy advocates and others to set aside their personal views of U.S. EPA's Clean Power Plan and help the Peach State draft a plan that would meet its carbon-reduction goals. -
Gov. Cuomo Aims to Link U.S. Northeast's Carbon Market with Calif.'s
Oct 9, 2015 | E&E - Climatewire
New York Gov. Andrew Cuomo (D) yesterday announced his state will "explore the possibility" of linking the Northeast's carbon cap-and-trade system with California's, envisioning a "North American market" where emissions allowances are bought and sold across the United States as well as in Canada. -
Amtrak Threatens Partial Shutdown
Oct 9, 2015 | The Hill - Transportation
By Keith Laing
Amtrak is warning Congress that it will have to shut down service on many of its long-distance train routes if lawmakers do not extend a federal deadline for automating trains.
Industry and Association News
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Global Trade for the Global Good
Oct 9, 2015 | The Hill - Congress Blog
By JB Penn
Last month, members of the United Nations General Assembly formally adopted the 2030 Agenda for Sustainable Development. Touching on issues from eradicating hunger and poverty, to achieving gender equality, to combating climate change and its impacts, this new set of global goals charts a path toward a sustainable future.
During the ceremony, Secretary General Ban Ki-moon noted that the 2030 agenda “compels us to look beyond national boundaries and short-term interests and act in solidarity for the long-term.” I believe the same is true of global trade if we are to sustainably feed the over 9 billion people that will inhabit our planet by 2050.
All early forecasts indicated 2015 was to be the breakout year for the global economy.
Yet, all signs now point to another disappointment. World Trade Organization economists reduced their estimation of commercial activity for 2015 from 3.3 to 2.8 percent – the fourth consecutive year trade growth has fallen below 3 percent.
This decline in global trade, however, should be of no surprise, given slower moving economies across much of the world.
China has witnessed significant volatility in its stock market and its currency fell by some 4.4 percent against the U.S. dollar this summer. China’s Finance Minister suggests the economy is entering a “new normal” – a growth rate of around 7 percent over the next several in contrast to decades of double-digit growth.
Other countries are experiencing similar struggles. Brazil’s economy is in recession, inflation remains a serious problem, unemployment continues to rise, and the stock market reached a 6-year low.
Unfortunately, the impact of these downturns is no longer local.
With rapid globalization, the slowing of economies can be felt around the world. As the second largest global economy, China’s slowing economic growth affects all the markets with which China trades and invests. For example, when the Chinese economy purchases less due to economic challenges, Japan, Taiwan, Australia and other trading partners are immediately affected.
The impact of these economic downturns and their ripple effects are even more troubling as we consider changing diets and increasing food demand in countries that are already struggling with food insecurity. Countries unable to meet their domestic food demand will increasingly rely on the movement of food and agricultural products around the world. And, we must strive to make this movement more open and equitable between food deficit countries and the surplus producers.
The same is true with respect to accessing the technology and equipment farmers everywhere need to increase their yields, their incomes and to improve overall food security. But, many unnecessary cross-border barriers exist today. For example, shipping a spare tractor part from South Africa to Kenya can take as long as 21 days - a trip that should be only a few hours or a day at most.
These are the economic and food security challenges we face without the expansion of global trade and further removal of tariff and non-tariff barriers.
Fortunately, global leaders are working toward the completion of two trade agreements that would help realize Secretary General Ban Ki-moon’s message of looking beyond national boundaries.
The just-concluded Trans Pacific Partnership, or TPP, involving the U.S. and Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam, promises significant strides in growing trade across a region that represents nearly 40 percent of global gross domestic product (GDP) and already is the market for 44 percent of U.S. total exports.
Likewise, the Transatlantic Trade and Investment Partnership or TTIP would strengthen trade between the U.S. and European Union member countries, which together account for nearly half of global economic output. Although still a work in progress, TTIP is intended to expand markets, increase investment, and generate jobs on both sides of the Atlantic.
Each of these agreements, along with continued multilateral trade liberalization efforts, is critical to spurring our global economy and, in turn, helping ensure that we will be able to feed the growing planet.
During this promising time of implementing a new sustainability agenda for the next 15 years, let’s ask policymakers and leaders in the U.S. and across the world to move beyond our parochial protectionist instincts and to keep the global good firmly in sight. Global trade is critical to catalyzing the economic development necessary to ensure sustainable food insecurity and to enjoy a healthier and more productive world.
We must embrace this exciting time of global change and move quickly with the work ahead.
Penn is the chief economist of Deere & Company and former under secretary for Farm and Foreign Agricultural Services at the Department of Agriculture (2001-2006). He is also a member of the DuPont Advisory Committee on Agricultural Innovation and Productivity.
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Oct 9, 2015 | The Hill - Congress Blog
By Michael Stumo
The New Zealand Trade Minister Tim Groser said, last weekend, that everyone was swallowing “dead rats” to get the Trans-Pacific Partnership done. As details come out, the economic rationale for the deal fades. Negotiators seem to have reached a deal just to reach a deal.
The U.S. trade negotiators should be focusing on building America’s industrial and agricultural supply chains to increase both domestic and international market share. We should want to increase net exports, to remedy our trade deficit. There is nothing inherently wrong about globalization that results from technology and transportation.
Oddly, the U.S. trade policy focus is upon growing global supply chains rather than the market share of domestic suppliers. That’s a big reason U.S. manufacturing and agricultural production is in decline, relative to other trading and producing nations. Can you imagine governments of China and Japan placing their policy thumb on the scale in favor of global suppliers instead of their domestic producers?
Given all the “dead rats,” it is not clear that the U.S. Trade Representative achieved enough to convince enough industries to support the deal and to convince enough Republican lawmakers to give Obama a win during his remaining time in office.
America’s meatpacker lobby organizations - such as the National Cattleman’s Beef Association and the National Pork Producers Council - demanded full elimination of Japanese duties on pork and beef. The TPP result fell far short.
While the average weighted tariff in Japan is about 2.5 percent overall, idiosyncratic tariffs on beef are indeed high at 38.5 percent. This will be reduced over the course of 15 years to 9 percent. Disconcertingly, the tariff reductions will be reversed if US exporters actually sell a lot of beef to Japan.
As to pork, while Japan will eliminate its 4.3 percent tariff over 10 years, it is really a farce. The country will preserve a variable tariff which prevents U.S. pork from being sold below domestic Japan prices. In other words, U.S. pork exports can never undercut domestic prices.
Japan is also increasing its VAT to 10 percent ext April, from 5 percent in 2010. All U.S. exports to Japan will pay this added 5 percent tax at the border.
We now know that meat tariff reductions negotiated in the Korea trade agreement, implemented in 2012, did not increase U.S. meat exports. The Japan result will be similar.
As to dairy and sugar, our trade negotiators conceded terms incentivizing more access to the U.S. market by New Zealand and others. Thus, any growth in our domestic market will benefit producers elsewhere, not necessarily Americas farmers.
Congressional demands for an effective system to control currency devaluation were largely ignored. There is a mere fig leaf of a promised future side agreement enabling countries to “discuss” currency devaluation, but no remedy is on the table. Japan’s currency devaluation of more than 55 percent is a tariff and subsidy equivalent that overwhelms any TPP concessions.
State-owned and controlled enterprises in Vietnam, Singapore, and Japan which operate in the commercial realm, competing against U.S. exporters, do not appear to have any substantial limitations placed upon them. The subsidized state enterprise issue has been central to China’s growth in our market. But under the TPP, the unlimited subsidies and resulting competitive advantage will continue.
President Obama needs the support of U.S. industries to push this agreement through Congress. The opposition does not fall neatly upon partisan lines. Several industry sectors have expressed disappointment. The agricultural sector is divided. Senate Finance Committee Chairman Orrin Hatch (R-Utah) is disappointed with the result on data protection for biologics in the pharmaceutical industry.
Whether the TPP will pass depends largely upon three core dynamics that could produce more “no” votes than July’s narrow Fast Track trade authority passage and sink the TPP in Congress. First, will there be enough industries that support the deal to successfully push their congressmen to vote “yes”? Second, did Obama’s negotiators meet enough statutory Fast Track negotiating objectives to plausibly claim that he was not ignoring Congress? Third, will Republicans want to give Obama a big win during the presidential campaign in the twilight of his administration?
We will not know the answer until the summer of 2016, at the earliest, due to the statutory timelines contained in the Fast Track trade authority bill passed last July.
Stumo is the CEO of the Coalition for a Prosperous America, a nonpartisan, nonprofit organization representing the interests of America manufacturing, agriculture and workers.
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MacArthur Foundation Declares Nanotechnologist a Genius
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Senate Impasse Over Legislation Renews Doubts About TSCA Reform Vote
Oct 9, 2015 | InsideEPA
By Maria Hegstad
Senate disputes over legislation including energy appropriations and a measure to reauthorize the Land and Water Conservation Fund (LWCF) are preventing a vote on a bipartisan Toxic Substances Control Act (TSCA) reform bill, and it is unclear when senators might debate the legislation after the Senate reconvenes on Oct. 19.
The impasse over unrelated bills is a set-back for the bill's supporters, who had urged their colleagues to allow for a vote on S. 697 before TSCA reaches the fortieth anniversary of its enactment on Oct. 11. “Don't let TSCA turn 40 without reforming it,” said Sen. Tom Udall (D-NM) at an Oct. 6 press conference in Washington, D.C. Udall introduced the original TSCA bill with Senate environment committee member David Vitter (R-LA).
The TSCA bill has at least 60 declared supporters -- enough to overcome a potential filibuster threat -- after Udall and Vitter agreed to various revisions to attract additional support from Democrats.
Some environmentalists and states are, however, looking for additional changes to S. 697 to win their support, with the Natural Resources Defense Council (NRDC) saying that the revised bill does not address its fears about language that could weaken EPA's significant new use rule (SNUR) power to identify chemicals of concern.
Separately, the National Conference of State Legislatures (NCSL) and the Environmental Council of the States (ECOS) -- two groups representing state officials -- in a recent letter to the top Republican and Democratic members of the Senate say they welcome the push for TSCA reform but add that changes to the bill are necessary. For example, the groups call for softer preemption of state chemicals programs and other updates.
Senators finished their work Oct. 8 without holding a vote on the reform bill, and although the upper chamber will hold a handful of pro forma sessions in the coming days it is out of session from Oct. 12-16.
Senate Majority Whip John Cornyn's (R-TX) office says the Senate will next convene Oct. 19 and resume consideration of a motion to proceed on a “sanctuary cities” bill, S. 2146, unrelated to TSCA reform. The Senate Press Gallery says that the Senate would likely then attempt on Oct. 20 to vote to invoke cloture on S. 2146.
Pending Legislation
Further complicating the prospects for TSCA reform, Democrats blocked the energy and water appropriations legislation, H.R. 2028, from proceeding before the Columbus Day break. The 49-47 vote to prevent cloture drew the ire of Sen. Lamar Alexander (R-TN), chair of the Appropriations Committee's energy and water panel, who called it “a very bad precedent and it really insults the Senate.”
He added, “That's not the way we are supposed to do our jobs. . . . To vote ‘no’ sets a dangerous precedent for the Senate that says we are not interested in doing what taxpayers elected us to do.”
When the Senate reconvenes, TSCA reform sponsors still have to solve an ongoing fight over a push to reauthorize the LWCF, which expired Sept. 30. The fund helps acquire and maintain park lands and is funded by companies drilling offshore for oil and gas. Sen. Richard Burr (R-NC) is seeking to offer an amendment to the TSCA reform bill that would reauthorize the fund -- but that is dividing supporters of S. 697.
Politico has reported that the amendment could face opposition from a handful of senators including Republicans Ted Cruz (TX) and Mike Lee (UT), leading to neither the rider nor the bill getting a vote.
Udall at the Oct. 6 press conference said he supports Burr and Sen. Kelly Ayotte (R-NH) in pushing a stand-alone bill to reauthorize the LWCF, and is trying to reach a deal with the senators through which they would drop the planned TSCA bill amendment in exchange for Udall helping to promote support for the LWCF bill.
Ayotte and Sen. Maria Cantwell (D-WA) both attempted during Senate floor action Oct. 8 to advance the standalone LWCF reauthorization bill, calling for unanimous consent of its passage.
Both efforts were quickly stifled with Sens. Lee and James Lankford (R-OK) objecting. Neither Ayotte's nor Burr's spokespersons responded to requests for comment regarding the situation.
States' Concerns
Even if senators can reach agreement on how to resolve the impasse over unrelated legislation, they might still have to address some lingering concerns about the bill from advocates and states.
Separate from NRDC's doubts over the SNUR language, NCSL and ECOS sent a Sept. 23 letter to Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Harry Reid (D-NV) saying they are “grateful for the changes that have been made to previous versions” of the bill “but believe that continued dialogue with the states as well as additional modifications are critical for a final comprehensive law that protects public health and the environment.”
In particular, the two states groups urge the senators to ensure that the final TSCA measure limits preemption of state chemicals programs; permits states to regulate chemicals during the period when states seek a waiver to regulate chemicals that have been assessed by EPA; and address concerns about how to ensure that EPA has the necessary funding and other resources “to fully implement this legislation” should it become law.
If the Senate approves S. 697 in the coming weeks, it will then head to conference committee to be reconciled with a much narrower TSCA reform bill, H.R. 2576, which cleared the House in a 398-1 vote in June. Both chambers would then hold votes on the reconciled final version of the bill.
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California Passes Nation’s Strongest Ban on Plastic Microbeads
Oct 9, 2015 | EcoWatch
Yesterday, California Gov. Jerry Brown signed the nation’s toughest ban on personal care products containing plasticmicrobeads, such as toothpastes, soaps and scrubs designed to be rinsed down the drain. Assembly Member Richard Bloom (D-Santa Monica) authored AB 888 after trillions of the tiny spheres of plastic ended up in rivers, lakes and oceans, where they are mistaken for food by fish and other wildlife.
“AB 888 is a comprehensive solution to the growing problem of microbead pollution. A recent study found a staggering amount of micro-plastic pollution in the San Francisco Bay but these beads have also been found in the open ocean, rivers and the Great Lakes,” said Assembly Member Bloom. “California steps forward to lead the nation in environmental protection by banning this pervasive source of plastic pollution. While other states have passed similar regulations, AB 888 was carefully crafted to avoid any loopholes that would allow for use of potentially harmful substitutes. This legislation ensures that personal care products will be formulated with environmentally-safe alternatives to protect our waterways and oceans.”
AB 888 is sponsored by the California Association of Sanitation Agencies (CASA), Californians Against Waste (CAW), Story of Stuff Project, 5 Gyres Institute and Clean Water Action.
According to CASA, after plastic microbeads are rinsed down the drain, their small size allows them to often bypass wastewater treatment filters. They then end up in local waterways and eventually the ocean where they attract chemicals such as PCBs and flame retardants to their surfaces. This can pose a threat to human health when fish and other organisms mistake them for food and the toxins make their way up the food chain.
“It never made sense to put billions of bits of plastic in products designed to be rinsed down the drain, polluting water and threatening wildlife,” said Mark Murray, executive director of Californians Against Waste. “California has adopted the strictest ban on polluting plastic microbeads in the nation and it will serve as the defacto national standard.”
Unlike plastic microbead bans passed in other states, AB 888 does not allow for companies to use plastic microbeads that are made of new formulations of plastic that their producers claim are safe or “biodegradable” because such claims have not been scientifically proven.
“The sponsors and author of the California Microbeads Bill drafted our policy to be the most environmentally responsible in the world. We simply banned plastic microbeads of any kind,” said Stiv Wilson, campaigns director for the Story of Stuff Project. “If industry wants to use a form of biodegradable plastic, they’re going to have to prove it’s totally safe before they can use it. We are not taking their word for it. Johnson & Johnson and Procter & Gamble fought us every step of the way, never producing a shred of evidence about the safety of their so-called ‘green innovation’ alternatives. The state of California called their bluff.”
Earlier this year, the Story of Stuff Project produced this online video to explain plastic microbeads pollution:
The 5 Gyres Institute, a leading research organization focusing on plastic pollution in the world’s oceans, recently discovered microbeads on a research expedition in the Great Lakes, where they found as many as 466,000 microplastics per square kilometer. And in California, the institute estimates that 471 million microbeads are dumped into the San Francisco Bay every single day.
“Our research estimates that there are over 5 trillion pieces of plastic in the world’s oceans. AB 888 will eliminate a significant contributor of plastic pollution at the source, before it ever has a chance to reach the oceans,” said Anna Cummins, executive director of the 5 Gyres Institute. “We are proud to cosponsor legislation that will give California the strongest protection in the country from harmful plastic microbeads.”
“The shocking part about the fight to get AB 888 passed in California is that plastics are a major but totally avoidable form of toxic pollution in a state with limited water resources,” said Andria Ventura, toxics program manager for Clean Water Action. “Safe alternatives have been on the market since before plastic existed. Clean Water Action’s members overwhelmingly supported this bill because they don’t want to contaminate our waters by the simple action of washing their faces.”
Plastic microbeads measure less than 5 millimeters in diameter and are added to facial scrubs, toothpastes and other personal care products as colorants or exfoliants. A single product can contain 350,000 microbeads. Many natural alternatives, such as apricot shells and cocoa beans, have already successfully been used instead of plastic microbeads in personal care products.
AB 888 takes effect on Jan. 1, 2020 and will keep an estimated 38 tons of plastic pollution out of California’s freshwater and marine environments every year.
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Three Killed in Blast at Natural Gas Plant in Louisiana
Oct 9, 2015 | The Wall Street Journal
By Alison Sider
Three workers were killed in an explosion and fire Thursday at a natural gas plant in Gibson, La., according to Williams Partners LP, the company that owns the facility.
The plant, located 70 miles southwest of New Orleans, wasn’t operating at the time of the blast, the company said. The fire happened during maintenance work on a tank known as a “slug catcher,” which is designed to remove liquids and impurities from the natural gas stream that flows through the plant.
The three workers who died were contractors, and two other contract workers were seriously injured, Williams said. None of the 13 Williams employees on site were hurt.
“We are deeply saddened by this tragedy. Our thoughts and prayers are with those injured and their families during this very difficult time,” said Warren Toups, Williams’s operations manager.
The Gibson plant is connected to Williams’s Transco pipeline system—a 10,000-mile network of pipes that moves natural gas from the Gulf Coast to states along the U.S. East Coast. Gas deliveries on Transco haven’t been disrupted as a result of the accident, the company said.
The Gibson facility is about 60 miles from Geismar, La., where a chemical plant owned by Williams exploded in 2013, killing two workers. That facility resumed operations earlier this year.
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Texas Site Catches Fire Again, Prompts Safety Questions
Oct 9, 2015 | E&E - Greenwire
A Texas industrial site Wednesday caught fire for the second time in a week, prompting questions about the safety of workers and the public in the area.
Pasadena, Texas' Schuetz Container Systems Inc., where plastic tanks are cleaned of leftover chemicals, was unable to tell first responders what materials had caught fire, what was in the facility or even where the company's records were stored, Fire Marshal David Brannon said.
"The folks that were exposed -- we didn't even know how to decontaminate them," he said.
Late last week, a different explosion rocked the plant, injuring at least four people.
Two firefighters were injured Wednesday from inhaling fumes and were treated and released without knowing what had injured them.
"It was a fiasco, and we're not happy about it at all," Brannon said. "This is one of the worst ones I've dealt with in 25 years. ... Nobody could give us answers" (Dempsey/Collette, Houston Chronicle, Oct. 8). -- BTP
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EPA Spills Water at Another Abandoned Site in Colo.
Oct 9, 2015 | E&E - Greenwire
By Manuel Quiñones
A U.S. EPA crew working at an abandoned mine site in western Colorado spilled roughly 2,000 gallons of water yesterday, according to early reports.
The spill at the Standard Mine Superfund site in Gunnison County appears to be far smaller than August's blowout at the Gold King mine, which affected several states and tribal lands.
An EPA statement said the agency contractor was working on dewatering a sediment pond into Elk Creek. The work is not complete, the statement said.
"Based on the neutral pH levels, the quantity of water released and flow levels downstream in Coal Creek, the Town of Crested Butte did not close its water intakes," EPA said. "Subsequent investigation found no visible plume or signs of significant impacts in downstream locations."
The agency said it immediately notified Crested Butte's water treatment plant and the Colorado Department of Public Health and Environment.
Rep. Scott Tipton (R-Colo.), however, said EPA had yet to reach out to his office. Tribal and state leaders criticized EPA for its slow notifications following Gold King, and the agency promised to do better.
"While initial reports are that the water was not contaminated, another spill caused by the actions of the EPA calls further into question this agency's ability to adequately execute these types of projects," Tipton said.
Following Gold King, EPA halted work at several abandoned mine sites to diminish the risk of another blowout. Environmental groups and many communities have praised the agency for working to help resolve the decades-old problem of abandoned mines.
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A note on Cybersecurity Awareness Month
Oct 9, 2015 | The Hill - Congress Blog
By Kenneth E. Bentsen, Jr.
A large-scale cyber attack is one of the most serious threats facing the financial system and the broader U.S. economy. While the probability of such an attack may be low, the impact would be quite large and is not to be ignored. October is Cybersecurity Awareness Month and a good time to take stock of what’s being done and could be done to enhance the financial services industry’s ability to prepare for, respond to and recover from a systemic attack that could impact consumers across the country.
From criminals seeking financial gain, to nation states committing corporate espionage, to cyber terrorists seeking to dislocate markets and destroy confidence, cyber threat actors are becoming more sophisticated, making cybersecurity an area of risk that must be actively managed by firms similar to all other areas of risk. An active partnership between the industry and government grounded in robust information sharing is widely recognized as the most effective way to help mitigate these threats.
One of the most immediate ways to enhance the collective cyber defense effort is for Congress to take action on bipartisan information sharing legislation that is pending in the Senate. The Cybersecurity Information Sharing Act, or CISA, has the potential to remove roadblocks to information sharing and enable the industry to better protect our systems and data as well as the privacy of our customers. As the Senate considers the plethora of amendments that have been suggested in recent months, it’s important that the underpinning goals of the legislation not be undermined.
Of course, legislation is not a panacea for addressing cyber threats. For our part, the industry is dedicating tremendous resources to protect the integrity of the markets and its millions of consumers, and this job is never done. It’s important that everyone understand cyber preparedness is more than just defense. Firms, the industry broadly and our government partners are developing and testing protocols for recovery and response as we can never be certain, nor should we assume, that all attacks can be detected and stopped. SIFMA is working our members on a variety of initiatives aimed at enhancing readiness, response and recovery.
One important example is the work we are doing to better assess the cybersecurity controls that are in place at third-party solution providers to ensure risks are addressed and mitigated. Firms have a regulatory obligation to rigorously vet their partners’ cybersecurity capabilities, and we think this work can be enhanced and streamlined by the use of an industry-wide standard centered on the AICPA SOC2 and the NIST Cybersecurity Framework. The voluntary standards proposed for all businesses by the National Institute of Standards and Technology provide an excellent foundation for communicating and mitigating cybersecurity risks.
SIFMA is also regularly holding exercises and tests to help our membership continuously refine member and sector playbooks for addressing systemic cyber threats. Just last month, we held the Quantum Dawn 3 cybersecurity exercise, which enabled financial institutions to practice how they would coordinate with key industry and government partners to maintain equity market operations in the event of a systemic attack, in this case one that interrupted the overnight clearing and settlement process within the equity markets. Over 650 individuals participated from firms of different sizes and key government partners including the U.S. Department of the Treasury, Department of Homeland Security, Federal Bureau of Investigation, federal regulators and the Financial Services Information Sharing and Analysis Center (FS-ISAC). The key takeaway: information sharing is critical and allows firms to more quickly respond to and mitigate an attack. We are working with Deloitte on a report that will further distill key takeaways and best practices for addressing cyber threats moving forward.
This is just a small sample of the work the industry is doing through SIFMA and other industry organizations to help protect firms and clients. Other initiatives we have focused on include the development of best practices for managing insider threats, guidance for smaller firms with fewer resources, protocols for coordination regarding market closing and opening in the event of a major crisis, and principles for effective regulatory guidance.
Indeed, another key piece of the puzzle is the important role that regulators play in cybersecurity. Coordinated regulatory guidance can promote effective business practices and help protect consumers. As various regulators consider cybersecurity guidance – and essentially work to address the same issue – coordination will be key to avoid duplicative or contradictory guidance or rules that could disrupt market operations. SIFMA has developed a set of principles for coordinated regulatory guidance that we believe will strengthen the collective cyber defense and recovery effort.
And that’s just it: this is a collective effort. The industry, policymakers, regulators and consumers all share the same goals and incentives to mitigate cyber threats and protect the integrity of our nation – during October and every other month of the year.
Bentsen is president and CEO of SIFMA.
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When Will We Decide to Hit Back on Cybersecurity?
Oct 9, 2015 | The Hill - Congress Blog
By Peter L. Levin
The recent cyber intrusions into Sony and the U.S. Office of Personnel Management have highlighted to the general public a festering weakness: America’s cybersecurity policy framework is wholly inadequate. We continue to fumble the creation of a coherent strategy supported by clear operational guidelines and meaningful response capabilities.
Because we have not effectively addressed the problem, we’ve unwittingly raised the stakes in a way that will ultimately lead to a trigger event for which we’ll have no legitimate alternative beyond publicly declaring that “now you’ve gone too far,” followed by kinetic retaliation.
Our adversaries, our allies, and our nation deserve something better than this know-it-when-we-see it strategy that currently guides our thinking.Finding a solution to this challenge is no easy task. First, there is currently neither a domestic agreement nor an international norm against which we can measure a proportional response to a cyber-intrusion.
A generation ago, the federal government executed people for revealing nuclear secrets to our Cold War adversaries. But today we hardly notice when the Chinese government steals plans for our most advanced weapons systems, as has been widely reported, or exfiltrates the personnel files of tens of millions of federal employees.
Clearly our definition of proportional response to espionage has changed, leaving us vulnerable to the perception – never mind the reality – of arbitrary rules of engagement.
Therefore, the first order of business in crafting a solution is to define what constitutes a cyber-attack: Ostensibly, it is one that converts any kind of information into an action or event that either: interferes with individual liberty or personal choice; disrupts an activity of daily living or costs money to remediate; or destroys or handicaps a physical asset, irrespective of ownership or use.
These categories can help discriminate what matters more from what matters less.
Next, the U.S. should remove the destabilizing ambiguity of how we will protect ourselves domestically, and what would trigger a response overseas. The current impasse diminishes any deterrent because we are a rule-driven society, and it’s difficult to justify the use of force without clear rules. Importantly, such a framework could be designed to maintain flexibility and choice regarding individual privacy, corporate participation, and military response. These goals are not mutually exclusive; they just need to be clear.
When it comes to the actual response, the U.S. is well equipped to interfere with, economically disrupt, or kinetically harm an enemy. And while the U.S. government is widely believed to have successfully launched the Stuxnet virus on Iran’s nuclear program in a digital attack, we have been reluctant to actively respond to either that country or any of our other three largest digital antagonists – China, Russia, or North Korea – when it comes to internet mischief, data exfiltration, or outright theft.
So what, then, would constitute a proportional (re)action?
Establishing expectations is complicated because the international community has lost its confidence in U.S. leadership on this topic. They publicly complain of our broad definition self-defense, regardless of the physical hazard. Even our friends privately raise concerns that we do not follow our own rules. But that does not mean we should not make them
Our response to cyber intrusions should be subtle, dynamic, and known. It could range from slow degradation of a foreign network to more dramatic expressions of proportional discouragement. Our actions can be geographically scaled, penetratingly deep, and vaguely attributable. Their execution should be sanctioned and structured, not extra-legal or impulsive.
The U.S. government urgently needs to consolidate and rationalize its cyber capabilities. This will require muscular executive leadership as well as congressional collaboration and approval. Our cybersecurity policy apparatus is fragmented and fractured, with overlapping responsibilities, self-negating authorities, and internecine rivalries that handicap authentic defense at the expense of agency interest or prestige. The situation has gotten worse, even as the need has become more urgent.
But to do nothing, and to claim nothing, is to evince an unwise defensive posture of forbearance or inability, even as our adversaries ratchet up and test their capabilities as if it were a benign military exercise. We simply cannot continue to offer a well-lit terrestrial landing pad, easily accessed from borderless reaches of cyber-space. It’s high time we put some defenses around it, and made intrusion a more risky and expensive proposition.
Levin is CEO of Amida Technology Solutions and a visiting senior fellow at the Center for a New American Security (CNAS). During the first Obama term, he was the CTO at the U.S. Department of Veterans Affairs.
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Appeals Court Halts WOTUS Rule Nationwide
Oct 9, 2015 | E&E - Greenwire
By Robin Bravender
A federal appeals court today halted a high-profile Obama administration rule defining the scope of the Clean Water Act, marking the latest legal blow to the controversial policy.
Judges on the 6th U.S. Circuit Court of Appeals in Cincinnati issued an order granting states' request to stay the Waters of the U.S. rule while the court considers its legality.
"The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court," according to the split opinion issued by the court today. "... [W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims," the judges wrote.
The order comes in response to challenges by 18 states to the Waters of the U.S. rule from U.S. EPA and the Army Corps of Engineers and puts the regime on hold pending legal review. The rule aimed to clarify which waters fall under the jurisdiction of the Clean Water Act, but the regulation has been fiercely criticized by some states and agricultural and other industry groups.
The states argued they would face irreparable harm from the rule and the patchwork of implementation. "Given the rule's manifest illegality and harms to the states, this inconsistent application of the WOTUS rule should not be allowed to stand," the states told the judges.
A third judge dissented in today's opinion, writing that he did not believe the appeals court should issue a stay before determining that it had jurisdiction to review the rule.
A number of lawsuits have been filed in both district and appeals courts, and it is yet to be determined which court will ultimately hear the consolidated challenges.
In late August, a North Dakota federal judge blocked the rule's implementation in the 13 states whose case appeared before him but declined to extend the injunction more broadly.
Correction: A previous version of this story misattributed a quote made by the states challenging the rule.
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Sixth Circuit Puts Controversial ‘Waters of the United States’ (WOTUS) Rule on Hold
Oct 9, 2015 | The Washington Post
By Jonathan H. Adler
This morning a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of a regulation issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers defining the scope of the “waters of the United States” subject to federal regulatory jurisdiction under the Clean Water Act (CWA). This rule — the so-called WOTUS rule — represents the EPA and Army Corps’ effort to clarify the scope of federal regulatory jurisdiction in light of Supreme Court decisions in 2001 and 2006 concluding that the agencies had adopted an unduly broad interpretation of the scope of their authority. Numerous challenges against the WOTUS rule are pending in courts around the country, including one in North Dakota I covered here.
A particularly interesting aspect of the court’s decision is that there is some question as to whether the court of appeals has jurisdiction to consider a challenge to the rule under the CWA. Specifically, there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts. Other courts considering WOTUS rule challenges have split on this question. Also interesting is that those parties seeking a stay — those opposing the rule — are also those who are arguing that the challenges should be heard in district courts, and that Sixth Circuit lacks jurisdiction to hear the initial challenge.
On the merits, the majority concluded that the opponents of the WOTUS rule have shown a sufficient likelihood of prevailing in their challenge to justify the stay. Judge McKeague, joined by Judge Griffin, wrote for the court:
[W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims. Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling inRapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act,it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.
Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).
The majority also concluded that there were good reasons to maintain the status quo pending the resolution of challenges to the rule.
What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters. Given that the definitions of “navigable waters” and “waters of the United States” have been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule.See Rapanos, 547 U.S. 715; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). In one sense, the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.
The court also noted that (as discussed here), the rule has already been stayed in 13 states. A nationwide stay serves the additional purpose of maintaining nationwide uniformity while the litigation proceeds.
Judge Keith dissented from the court’s opinion on the grounds that the court should not issue a stay against the rule until it determines that it has jurisdiction under the CWA to review the rule. In response, the majority argued that it has the discretionary power to issue a stay pending the resolution of the jurisdictional question, and that briefing on that matter is underway.
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U.S. Appeals Court Blocks EPA Water Rule Nationwide
Oct 9, 2015 | The Wall Street Journal
By Brent Kendall and Amy Harder
A federal appeals court on Friday issued a nationwide stay blocking a new Environmental Protection Agency regulation that seeks to expand the amount of water and wetlands under federal protection.
The Cincinnati-based U.S. Circuit Court of Appeals for the Sixth Circuit, in a split ruling, said it was prudent to block the regulation while litigation continued over whether the Obama administration’s effort was legal.
“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing,” the court said.
The court’s order was a preliminary boost for a group of 18 states that challenged the EPA regulation, which seeks to add smaller bodies of water under federal water rules.
U.S. trial judges previously have reached conflicting conclusions on whether the EPA’s efforts should be put on hold.
One federal judge in August blocked the rule in 13 states that had challenged it in a federal court in North Dakota, saying those states were likely to succeed in their lawsuit against the regulation.
In coordination with the U.S. Army Corps of Engineers, the EPA in May issued the rule, which is estimated to put about 3% more waterways throughout the U.S. under new federal jurisdiction. That would require a federal permit to pollute those waters and could restrict access altogether. Major waterways, like most rivers and lakes, are already under protection of the Clean Water Act and aren’t affected by the rule.
Critics, including lawmakers and business and farming groups, say the rule amounts to a federal power grab of state rights.
The EPA has said the rule is necessary to clarify which waters should fall under the protection of the federal Clean Water Act of 1972 after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially streams and wetlands, should fall under federal jurisdiction.
Companies apply for permits under the Clean Water Act for a host of industrial activities, such as building roads, bridges and discharging of waste material like sewage. The Corps of Engineers, which issues Clean Water Act permits along with the EPA, says it approves tens of thousands of such permits a year. EPA officials say farming activity wouldn’t need a permit based on an existing exemption.
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Court Blocks Obama’s Water Rule Nationwide
Oct 9, 2015 | The Hill - E2 Wire
A federal court ruled Friday that President Obama’s regulation to protect small waterways from pollution cannot be enforced nationwide.
In a 2-1 ruling, the Cincinnati-based Court of Appeals for the Sixth Circuit delivered a stinging defeat to Obama’s most ambitious effort to keep streams and wetlands clean, saying it looks likely that the rule, dubbed Waters of the United States, is illegal.
“We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims,” the judges wrote in their decision, explaining that the Environmental Protection Agency’s (EPA) new guidelines for determining whether water is subject to federal control — based mostly on the water’s distance and connection to larger water bodies — is “at odds” with a key Supreme Court ruling.
The judges said they have yet to decide whether they have jurisdiction to review the regulation, but a stay would make it easier to determine that.
“A stay allows for a more deliberate determination whether this exercise of executive power, enabled by Congress and explicated by the Supreme Court, is proper under the dictates of federal law,” the court said.
“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.”
The decision expands a stay that a North Dakota judge imposed in August, the day before the rule took effect, and that only applied to 13 states.The EPA said it will respect the court’s decision, but it believes the rule is legal and necessary. “The agencies respect the court’s decision to allow for more deliberate consideration of the issues in the case and we look forward to litigating the merits of the Clean Water Rule,” EPA spokeswoman Melissa Harrison said. “The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law,” she added.
The National Federation of Independent Business, one of the groups that sued to stop the rule, welcomed Friday’s decision.
“Small businesses everywhere this morning are breathing a sigh of relief,” Karen Harned, executive director of the group’s legal foundation, said in a statement.
“The court very properly acknowledged that the WOTUS rule has created a ‘whirlwind of confusion’ and that blocking its implementation in every state is the practicable way to resolve the deep legal question of whether it can withstand constitutional muster.”Environmentalists were disappointed with the stay. “We strongly disagree with this irresponsible decision that lets polluters continue to put the drinking water of one in three Americans at risk,” said Madeleine Foote, a lobbyist with the League of Conservation Voters. “Time and again the public has demonstrated that it overwhelmingly supports restoring these safeguards for the water our children and grandchildren drink, swim, and play in,” she said.
Waters of the United States has become one of the most controversial environmental regulations under Obama.
Republicans, nearly 30 states and a wide range of business interests say that it is a major overreach of federal power, putting the EPA in charge of nearly every square inch of private and state land.
The EPA and the Army Corps, which enforce the rule together, said it was necessary to clarify the federal government’s authority and ensure protection of small waterways that are connected to bigger ones, as called for under the Clean Water Act.
The Friday decision means those small waterways will, for the time being, go without Clean Water Act authority.
The stay is not the final word on the regulation, since the court still needs to go through the process of making a full ruling on it. After that, it can be appealed up to the Supreme Court.
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Appeals Court Freezes WOTUS in Blow to Obama Admin
Oct 9, 2015 | E&E - Greenwire
By Robin Bravender and Jeremy Jacobs
Critics of a high-profile Obama administration water regulation are heralding a federal court's decision to block the policy -- at least temporarily.
Judges on the Cincinnati-based 6th U.S. Circuit Court of Appeals today issued an order granting states' request to stay the Waters of the U.S., or WOTUS, rule nationwide.
"The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court," according to the split opinion issued by the court today (Greenwire, Oct. 9).
A two-judge majority said the significance of the administration's new rule, which defines what marshes, bogs and wetlands qualify for Clean Water Act protections, warranted leaving the current regime in place for now.
"The sheer breadth of the ripple effects caused by the rule's definitional changes counsels strongly in favor of maintaining the status quo for the time being," they wrote.
There's a battle playing out nationally over which court should hear challenges to the rule from U.S. EPA and the Army Corps of Engineers. The 6th Circuit judges halted the rule while they determined whether they have jurisdiction to handle the case.
"[W]e have no doubt of our authority ... 'to make orders to preserve the existing conditions and the subject of the petition[s]' pending our receipt and careful consideration of briefing on the jurisdictional question," the judges wrote in the 2-1 opinion. They added that petitioners have grounds to question the court's jurisdiction of the case and that the contrary position "has color as well." That question of jurisdiction will be "ripe for decision in a matter of weeks," they said.
The majority decision was issued by two Republican-appointed judges, David McKeague and Richard Allen Griffin.
A dissenting judge on the panel said it is "not prudent" for a court to act before determining whether it has jurisdiction to review the rule. "If we lack jurisdiction to review the rule, then we lack jurisdiction to grant a stay," wrote Judge Damon Keith, a Democratic appointee to the court.
The court's majority said, "[W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims."
The order comes in response to challenges by 18 states to the WOTUS rule. Those states are Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin.
The states argued they would face irreparable harm from the rule and the patchwork of implementation. "Given the rule's manifest illegality and harms to the states, this inconsistent application of the WOTUS rule should not be allowed to stand," they told the court.
Several other states and green groups that back the administration's rule are also involved in the lawsuit. Those intervenors include Connecticut, the District of Columbia, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington.
A number of lawsuits have been filed in both district and appeals courts, and it is yet to be determined which court will ultimately hear the consolidated challenges.
In late August, a North Dakota federal judge blocked the rule's implementation in the 13 states whose case appeared before him but declined to extend the injunction more broadly (Greenwire, Aug. 27).WOTUS critics see long-term court victory
Critics of the water rule hailed the court's decision as a major victory and an indication that they'll ultimately win in court.
"The 6th Circuit's order to suspend nationwide the implementation of the Obama administration's final WOTUS rule is a victory for all states, local governments, farmers, ranchers and landowners," said Senate Environment and Public Works Chairman James Inhofe (R-Okla.). "In issuing the stay, the court determined that 'petitioners have demonstrated a substantial possibility of success on the merits of their claims.' This means that the court is likely to overturn the rule."
American Farm Bureau Federation President Bob Stallman said the court's stay reflects a recognition "that this rule has serious flaws."
He added, "We're not in the least surprised: This is the worst EPA order we have seen since the agency was established more than 40 years ago. ... We are confident that the courts will strike down this rule."
Pat Parenteau, a Vermont Law School professor who has previously supported the rule, countered that the ruling may ultimately be a bad sign for challengers. He noted that one reason the judges granted the stay was that an aspect of the final rule that defined distance limitations on establishing federal jurisdiction was not part of the proposed regulation.
The judges called that aspect of the regulation "facially suspect," but Parenteau noted the result was that it reduced the number of bodies of water that qualify. It didn't expand it, as the challengers contend.
"The states and the industry are going to crow that they are right," he said, "but I think at the end of the day, the reason the rule could be overturned is that it gave up federal jurisdiction without explaining why."
EPA spokeswoman Melissa Harrison said the agency respects the court's decision to allow for "more deliberate consideration of the issues in the case, and we look forward to litigating the merits of the Clean Water Rule."
She added, "The agencies' prior rule will remain in effect nationwide, and we will continue to apply the best science and technical data on a case-by-case basis to waters at issue."
Green groups warned the stay would hamper efforts to safeguard water supplies.
"We strongly disagree with this irresponsible decision that lets polluters continue to put the drinking water of one in three Americans at risk," League of Conservation Voters Legislative Representative Madeleine Foote said. "For too long, legal uncertainties have created an unworkable status quo that jeopardizes the clean water our families, economy and communities depend on. We hope the court's final decision ensures these critically important public health protections are once again the law of the land."
Reporter Annie Snider contributed.
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6th Circuit Order Blocking EPA CWA Rule Hints At Court Scrapping Policy
Oct 9, 2015 | InsideEPA
By David LaRoss
The U.S. Court of Appeals for the 6th Circuit has issued an order blocking EPA from implementing its Clean Water Act (CWA) jurisdiction rule nationwide while it weighs whether it has authority to hear suits over the rule, though at least two judges suggest if they hear the suit then they will scrap the policy for exceeding EPA's authority.
The Oct. 9 order by Judge David McKeague on behalf of fellow Judge Richard Allen Griffin nevertheless drew a dissent from Senior Judge Damon J. Keith who said it is premature of the court to issue an injunction blocking the rule before it even decides whether it has jurisdiction to hear the litigation over the policy. Keith in his brief dissent did not address the majority's several attacks on the legality of specific provisions in the rule.
The 6th Circuit is still weighing arguments over whether it has authority to hear challenges to the CWA rule. The CWA is unclear on whether challenges to nationally applicable rules issued under the water law must be heard in federal district or appellate courts, prompting myriad lawsuits at both levels.
Critics of the rule -- including industry groups and Republican lawmakers -- say it unlawfully exceeds EPA's authority by expanding the water law's reach far beyond what Congress intended. They welcomed the national stay of the rule, which follows a recent federal district court order blocking the rule's implementation in 13 states.
Sen. James Inhofe (R-OK), Chair of the Senate Environment & Public Works Committee that oversees EPA, said the ruling is a good signal for legal challenges to the CWA policy but also bolsters the case for S. 1140, a bill that would force EPA and the Army Corps of Engineers to withdraw their joint rulemaking and then launch an extensive round of consultation with states, industry and others to inform a new version of the regulation.
“This means that the court is likely to overturn the rule. Because this process can take several years, the Sixth Circuit’s ruling makes it all the more important for Congress to pass” S. 1140, Inhofe says.
Coal firm Murray Energy -- the lead challenger in the consolidated 6th Circuit case -- also issued an Oct. 9 statement where company head Robert E. Murray described the 6th Circuit's order as “a very good decision and yet another signal that this Rule is an absolutely illegal overreach by President Obama and his Democrat supporters.”
'Irresponsible Decision'
Although at least two of the three 6th Circuit judges overseeing the consolidated suits over the CWA rule suggested they would scrap the regulation if they agree to hear the case, environmentalists are optimistic EPA could win an eventual suit on the merits. League of Conservation Voters Legislative Representative Madeleine Foote said in an Oct. 9 statement that while “[w]e strongly disagree with this irresponsible decision. . . . We hope the court’s final decision ensures these critically important public health protections are once again the law of the land.”
Environmentalists say the Obama administration's CWA rule -- jointly crafted by EPA and the Corps -- resolves uncertainty about the law's scope following the 2006 Supreme Court case Rapanos v. United States that created competing tests for jurisdiction, and will ensure better protection of U.S. waters.
McKeague in the stay order acknowledges the uncertainty caused by the Rapanos ruling and the need for a national regulation to resolve the issue, but says EPA's rule appears to be legally questionable.
The order says challengers have shown “a substantial probability of success on the merits,” citing flaws in how the rule defines a “significant nexus” between waterbodies and EPA and the Corps' alleged failure to give notice that it was considering many of the provisions included in their joint final rule.
“[T]he rulemaking process by which the distance limitations were adopted is facially suspect. . . . Nor have respondents identified specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose. Their argument that 'brightline tests are a fact of regulatory life' and that they used 'their technical expertise to promulgate a practical rule' is undoubtedly true, but not sufficient,” the order says.
The 6th Circuit's decision ends the piecemeal implementation of the rule that took effect Aug. 28. The uneven implementation had been in place after U.S. District Court for the District of North Dakota Chief District Judge Ralph Erickson issued a more limited order that blocked the rule only within the 13 states suing over it in that court.
EPA said in response to that order that it would continue to use guidance from 2008 on CWA jurisdiction in those 13 states, signaling that it might do the same nationwide now that the rule has been stayed completely.
Significant Nexus
McKeague's order raises questions about EPA's adoption of distance-based thresholds for when waters have a significant nexus, which EPA says is the best way to implement the test for jurisdiction established by Justice Anthony Kennedy's concurring opinion in Rapanos -- one of two tests for jurisdiction established in that case, the other test crafted by Justice Antonin Scalia.
“Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of 'waters of the United States' as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction,” McKeague writes.
The judge adds that challengers in the 6th Circuit case have raised apparently valid claims that there is no direct relationship between the 2014 proposal the agencies took public comment on and the distance-based limits on which waters can have a significant nexus that the final rule includes.
“Although the record compiled by respondent agencies is extensive, respondents have failed to identify anything in the record that would substantiate a finding that the public had reasonably specific notice that the distance-based limitations adopted in the Rule were among the range of alternatives being considered,” the order says.
Beyond the challengers' claims on the rule's merits, McKeague says national uniformity and stability also support a nationwide stay -- especially with Erickson having already blocked its implementation in his district court case.
“In light of the disparate rulings on this very question issued by district courts around the country -- enforcement of the Rule having been preliminarily enjoined in thirteen state[s] -- a stay will, consistent with Congress’s stated purpose of establishing a national policy, restore uniformity of regulation under the familiar, if imperfect, pre-Rule regime, pending judicial review,” the order says.
Court's Jurisdiction
Keith in his dissent did not address the CWA rule on the merits but instead argued that the court must first decide whether it has jurisdiction over the suit before it can stay the rule. “If we lack jurisdiction to review the Rule, then we lack jurisdiction to grant a stay,” he writes in his dissent.
The 6th Circuit must now decide whether it has jurisdiction to hear the consolidated lawsuits over the CWA rule. Challengers to the rule have favored review in the district courts while EPA and its supporters have sought to hear the case in appellate courts, but it is unclear whether the 6th Circuit's signals that it could ultimately back the challengers' position will change those arguments.
Meanwhile, parties in the district court cases are awaiting a decision from the federal courts' multi-district litigation panel on whether to consolidate the host of separate district-level challenges to the rule. The panel signaled at Oct. 1 oral arguments that they will reject EPA's push to combine the suits, but there is no deadline for the judges to issue their final ruling on that question.
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Letter to the Ediotr: EPA’s New Ozone Standard Is Science-Based
Oct 9, 2015 | The Wall Street Journal
By Janet McCabe
Your editorial “The Twilight Ozone” (Oct. 2) is a rerun of the long-discredited argument that environmental standards somehow harm the economy. You blindly ignore science, the law and history.
Clear evidence from clinical studies and an independent panel’s expert advice strongly indicated that the previous standard wasn’t sufficiently protective of American health. Based on the science, the administrator strengthened the standard.
Far from “wholly discretionary,” as the Journal claims, the Clean Air Act requires the EPA to review, and if necessary revise, air-quality health standards every five years, and to set them at a level requisite to protect public health with an adequate margin of safety.
In 45 years the U.S. economy has tripled while air pollution has decreased nearly 70%. Since 1980 ground-level ozone is down 33%—a trend that EPA projections show will continue. With pollution standards already in place or under way, smog-forming emissions will continue to decline. By 2025 only 14 counties outside of California are expected to measure ozone levels above 70 ppb, down from 213 counties today.
Science tells us that too many people are still exposed to too much ground-level ozone and that it makes people sick, puts them in the hospital and shortens their lives, so the law requires an ozone standard to better protect all of us, but especially children, who are particularly at risk. Reducing pollution comes with a cost, but the facts show that the cost of doing nothing is far higher.
Janet McCabe
Office of Air and Radiation
EPA
Washington
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E&E Daily's Bush Talks Impact of Leadership Uncertainty on Energy Legislation
Oct 9, 2015 | E&E TV
How will yesterday's decision by House Majority Leader Kevin McCarthy (R-Calif.) to drop out of the race for speaker affect the future of energy legislation in the House this fall? On today's The Cutting Edge, E&E Dailyreporter Daniel Bush discusses the latest developments in the speakership race and explains how yesterday's news could affect votes on key energy issues.Transcript
Monica Trauzzi: Welcome to The Cutting Edge. How will yesterday's House leadership stunner affect the future of key energy legislation?E&E Daily's Dan Bush has been tracking all the latest developments from Capitol Hill. Dan, very surprising day yesterday. How does Kevin McCarthy's decision to not seek the speakership impact the level of order we can expect from the House this fall?
Daniel Bush: Right now it's fair to say the House is in complete disarray. There's a scramble on to find somebody who can step up and run for speaker successfully, but right now it's unclear that any member of the GOP caucus has the 218 votes that they would need to win a floor vote, and at the same time, Congress is facing several huge fiscal issues, from raising the debt limit on November 5th to avoiding another government shutdown on December 11th. So the prospects for this stuff is tricky.
Monica Trauzzi: So obviously the crude oil export bill has received a lot of attention and been a big focus throughout the fall, including from the White House, where we've heard indications from the president that he would veto any such bill. Despite leadership uncertainty, the House has moved forward on the crude oil export bill, but there was some controversy. What were the most controversial amendments there?
Daniel Bush: Sure, so there's an amendment fight between Democrats and Republicans over key provisions of the bill. Democrats have been asking for stipulations, restrictions on the crude oil export bill in order to get their support. Some have called for a year delay in implementing it. Frank Pallone, the -- sorry, the ranking member of the Energy and Commerce Committee, has put forward language that would require the president to sign off only if he determined that it didn't increase carbon emissions. So that's been the main fight, and Republicans have, so far, blocked Democratic amendments to the bill and appear, you know, eager to move forward with their version of the legislation.
Monica Trauzzi: So if this leadership uncertainty stretches beyond the end of October, what will the broader impacts be, then, on energy and the legislation that's trying to move through the House?
Daniel Bush: Sure. So the crude oil export ban bill is sort of one part of it, but there's been a broader debate over energy reform in general. There's a big package moving through the House right now. Fred Upton, the chairman of the Energy and Commerce Committee, had hoped to put that bill on the floor sometime this fall, but obviously the speaker's race has thrown a wrench into that, and it's unclear at this point when there's time in the calendar for them to get to that legislation. So clearly there's going to be delay. We don't know yet how long.
Monica Trauzzi: So there are a lot of names going in the ring right now for who the next speaker could be. How could that person, that one person really shape the future and the agenda that we see coming out of the House?
Daniel Bush: It's going to be very difficult. You mentioned that there are several people sort of in the mix. Paul Ryan, the chairman of the Ways and Means Committee, is being petitioned hard to get in. Somebody like him would have to unite the more moderate wing of the caucus with the Freedom Caucus in the Republican Party, the more conservative element. That's going to be very difficult to do, and it's going to affect, as you said, all sorts of legislation moving forward, and it's difficult at this point to see how the Republican Party in the near term can come together on these big energy and fiscal issues.
Monica Trauzzi: All right. Fascinating to watch. Thank you for coming on the show.
Daniel Bush: Thanks for having me.
Monica Trauzzi: More Cutting Edge coming next Friday. We'll see you then.
[End of Audio]
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House Turns Oil Exports Dial to 11
Oct 9, 2015 | PoliticoPro (Morning Energy)
By Eric Wolff
HOUSE TO TURN OIL EXPORT DIAL TO 11: While their leadership crisis continues, House Republicans plans to rally around energy, one of their most frequently unifying policy areas, with a vote on legislation to end decades-old limits on crude exports. The bill's backers, both on Capitol Hill and in the oil industry, are eyeing as many as 30 Democratic votes for the proposal despite the turnaround of one key minority-party vote, Rep. Gene Green (D-Texas).
A frequent ally of oil thanks to his ties to refiners, Green voted for the bill in committee but plans to oppose it on the floor after talks derailed over bolstering its protections for domestic processors of crude. The bill's low-water mark for bipartisan support lies around 16, its number of Democratic co-sponsors, and a last-minute push by environmental groups coupled with a White House veto threat could keep its numbers lower than supporters hope.
Fractured Freedom Caucus? One amendment to watch during the exports debate is Rep. Justin Amash's bid to strike language added on the bill's way to the floor that boosts Maritime Security Program payments in an effort to win extra Democratic votes. Heritage Action for America slammed the addition as an earmark, raising the prospect of fraying conservative support, but exports backers cheered when Rep. Jim Bridenstine — like Amash, a member of the influential House Freedom Caucus — blogged in favor of the new language.
What happens next? No matter how the House vote shakes out, the exports bill continues to face strong headwinds in the Senate. Check out Elana Schor's dispatch from earlier this week on the long-term state of play for overseas oil trade.
FRIDAY I'M IN LOVE: I'm your host Eric Wolff, and hey, the week didn't turn out too wonky after all! Thanks Rep. McCarthy! But if you've got some wonkiness to share, feel free to send it my way at ewolff@politico.com, or follow us on Twitter @ericwolff, @Morning_Energy, and@POLITICOPro.
CBO: CAPITO BILL WOULD NOT STOP EPA FROM REGULATING POWER PLANTS:Sen. Shelley Moore Capito's ARENA Act throws out a bushel of EPA rules and adds a host of new requirements on EPA if it attempts to regulate carbon from power plants new and old. But the Congressional Budget Office said yesterday it doesn't believe the agency would be deterred from proposing a new carbon rule for power plants consistent with those requirements: "The bill would not prohibit EPA from continuing to work on activities related to power plants, such as developing guidance and providing technical assistance to states. Based on information from EPA, CBO estimates that implementing this legislation would not have a significant effect on EPA’s workload or spending related to power plant emissions."
OOPS, THEY DID IT AGAIN: Just two months after EPA accidentally spilled 3 million gallons of wastewater into Colorado’s Animas River, the agency is behind another — significantly smaller — spill. Workers at the Standard Mine, which produced silver until the 1970s, were drilling a tunnel to bypass a collapsed part of the mine when about 2,000 gallons of wastewater spilled from a pond. The wastewater likely made its way into Coal Creek, but the mayor of nearby Crested Butte said yesterday that the town's water supply was not affected. Standard Mine was one of the sites where remediation work was halted by EPA for a few weeks following the Gold King spill, but work resumed last month after officials said they had ensured an emergency response plan was in place. More from the Denver Post: http://dpo.st/1RwzHLp
EPA learns from its mistakes: "EPA immediately notified the Town of Crested Butte water treatment plant and called the Colorado Department of Public Health and Environment spill hotline," Liz Purchia, EPA's top spokeswoman, told ME. "Based on the neutral pH levels, the quantity of water released, and flow levels downstream in Coal Creek, the Town of Crested Butte did not close its water intakes. Subsequent investigation found no visible plume or signs of significant impacts in downstream locations."
INTERIOR DIVES INTO ANIMAS SPILL: Pro's Alex Guillén has the story: "The Interior Department will conduct a wide-ranging technical review of the Animas River spill accidentally caused by EPA workers in August at the Gold King mine in Colorado, according to a Superfund work form ...The Aug. 20 document for the first time outlines how Interior's Bureau of Reclamation will conduct its review, for which $125,000 has been allocated. The review is focused on technical matters rather than legal issues like potential negligence."
THE NATIONAL PARK SERVICE WORKS FOR TIME-SHARE TOO? For years, high government officials stayed at the Brinkerhoff Lodge in Grand Teton National Park for free, or at a steep discount. The lodge is only open to federal employees on an official visit. But according to an Interior IG report released yesterday, Park staff created a one-hour briefing just to meet this requirement. Vice President Joe Biden and other Obama administration officials took the parks up on this amazing offer! Your host has the details. (In case you missed the South Park reference:http://on.cc.com/1DG5KSe)
IT'S SCIENCE: EPA's top air official, Janet McCabe, has once again taken to the editorial pages of the Wall Street Journal with a letter defending a regulation — this time the ozone standard. "You blindly ignore science, the law and history," she writes of the Journal's own editorial slamming the new standard. "Science tells us that too many people are still exposed to too much ground-level ozone and that it makes people sick, puts them in the hospital and shortens their lives, so the law requires an ozone standard to better protect all of us, but especially children, who are particularly at risk."
DON'T CRY FOR ME, GOP CONGRESS: When ME boarded his trusty Morning Bicycle yesterday to commute to the newsroom, Kevin McCarthy was a freight train with one destination: Speaker of the House of Representatives. About a half hour later, as ME locked up the MB in the garage below POLITICO'S gleaming headquarters, Republicans were weeping in the cloakroomover McCarthy's decision to bail out. As POLITICO readers know, Republicans floated many names to take the job (at one point in the day Pro's Elana Schor told her colleagues that if called, she would serve). By sundown, all eyes turned to a reluctant Rep. Paul Ryan, as GOP leaders pled with him to take the job. POLITICO's Jake Sherman, John Bresnahan, Anna Palmer, and have thestory, and stay with The Gavel for regular updates on leadership races.
ENERGY BILL FOR TRIBES PASSES: The House of Representatives defied a presidential veto threat and passed the Native American Energy Act yesterday. The bill would make it easier for tribes to lease their land for energy production, whether mining, drilling, or wind farms.
ENVIROS STILL TRYING TO INFLUENCE DEBATES: Last month Tom Steyer, the billionaire climate activist, called on Anderson Cooper, moderator for the first Democratic debate next week, to grill the candidates on their positions on climate change. CNN, which is hosting the debate, will be taking questions from Facebook. The League of Conservation Voters will reach out to its members today to find the perfect question. It will post the question to Facebook, and then mobilize its membership to "like" the question to the top of the list.
NOW AVAILABLE: POLITICO PRO LEGISLATIVE COMPASS — This first-of-its-kind legislative data analytics and decision-making tool is changing how policy professionals manage and act on legislation. Leveraging features such as a personalized dashboard, virtual whip count, bill text comparison and 20 years of data, users will not only save time but benefit from customizing and cross-referencing information, enabling them to make smarter and faster decisions. Contact us or your Account Manager to schedule your demo today.
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McCarthy Exit Postpones Elections, Not Export Vote
Oct 9, 2015 | PoliticoPro (Afternoon Energy)
By Jennifer Shutt
McCARTHY EXIT POSTPONES LEADERSHIP ELECTIONS, NOT EXPORT VOTE: House Majority Leader Kevin McCarthy's stunning decision to abandon his bid for speaker threw the Capitol into chaos this afternoon, and caused outgoing Speaker John Boehner to postpone leadership elections and stay in his job until a successor can be found. Jake Sherman, Anna Palmer and John Bresnahan have the story.
— House oil export vote on track:Tomorrow's House vote on crude exports legislation will continue despite the ongoing uncertainty, a GOP leadership aide told POLITICO today. The vote on the overseas oil sales bill is on track to take place less than 24 hours after McCarthy's stunning cancellation of his campaign, leaving the House GOP conference in a leadership vacuum. The legislation is still expected to pass, although its Democratic support could prove weaker than supporters had hoped following Wednesday's veto threat from the White House.
— Who's next? Speculation about who would replace McCarthy immediately kicked into high gear, Lauren French reports. Reps. Daniel Webster of Florida and Jason Chaffetz of Utah, who challenged McCarthy, are still in the running. Republicans also are considering appointing an interim speaker. Possible caretakers include Reps. Candice Miller of Michigan and John Kline of Minnesota, who are both retiring; Rep. Tom Cole of Oklahoma, who has served in Congress since 2003; and National Republican Congressional Committee chairman Greg Walden of Oregon, who also is a senior member of the Energy and Commerce Committee.
SENATE DEMOCRATS BLOCK ENERGY SPENDING BILL: Senate Democrats blocked a $35.4 billion Energy Department spending bill as part of their effort to get Republicans to negotiate a new budget deal. The 49-47 vote fell short of the 60 necessary to proceed to a bill funding DOE and water infrastructure programs. As the Senate opened its vote, the White House threatened to veto the bill. The same fate is expected when Senate Majority Leader Mitch McConnell in the coming weeks tries to bring up a range of fiscal 2016 spending bills covering EPA, Interior and other agencies. Spending bills overseeing the Defense Department, military construction and veterans' affairs have also been blocked.
— Three Republicans and a Democrat crossed the aisle. Nevada Republican Sen. Dean Hellervoted against the bill, saying his "concern was they’d make Yucca Mountain part of this” if the bill were open to amendment. Georgia Republicans Johnny Isakson and David Purdue also opposed it over an Army Corps of Engineers provision related to their home state. West Virginia's Joe Manchin was the only Democrat to vote for the bill.
Welcome to Afternoon Energy. I’m your host Jennifer Shutt. Send your energy news and tips tojshutt@politico.com, mdaily@politico.com and njuliano@politico.com, and keep up with us on Twitter at @JenniferShutt, @dailym1, @nickjuliano, @Morning_Energy and @POLITICOPro.
NOW AVAILABLE: POLITICO PRO LEGISLATIVE COMPASS — This first-of-its-kind legislative data analytics and decision-making tool is changing how policy professionals manage and act on legislation. Leveraging features such as a personalized dashboard, virtual whip count, bill text comparison and 20 years of data, users will not only save time but benefit from customizing and cross-referencing information, enabling them to make smarter and faster decisions. Contact us or your Account Manager to schedule your demo today.
TSCA FLOOR VOTE ON HOLD THROUGH RECESS: A deal on bringing the TSCA bill to the Senate floor will have to wait at least until after next week’s congressional break. “We’re still having some very good productive discussions, and I think that this is going to happen sooner rather than later,” bill sponsor Sen. Tom Udall said. “But it doesn’t look like this week, so we’re going to be working hard over the break and continuing the discussions.” Republicans Richard Burr and Kelly Ayotte are preventing unanimous agreement to hold quick debate on the bill as they seek an unrelated vote on extending the Land and Water Conservation Fund. TSCA bill cosponsor Sen. David Vitter said they are attempting to get unanimous agreement to have a debate of about two hours on a measure that has 60 official cosponsors.
VOLKSWAGEN CEO: NO REASON TO THINK DIESELS HAD ‘DEFEAT DEVICES’ IN 2014: Volkswagen's top U.S. executive said today he had "no reason" to suspect the company's diesel cars were equipped with technology to purposefully skirt pollution limits. "Let me be very clear," Volkswagen Group of America President and CEO Michael Horn told a House Energy and Commerce oversight panel. Horn said he first heard that the company installed the software to cheat on emissions tests "around the Sept. 3 meeting — a couple of days before," referencing the day when VW officials admitted the deception to the EPA.
IMF CALLS CLIMATE CHANGE ‘MACRO-CRITICAL’ ISSUE: The changing climate presents a ‘macro-critical’ issue for the economy and while the International Monetary Fund cannot invest to combat melting ice sheets or stronger storms, it can advocate for removing subsidies from the “wrong pockets," IMF Chief Christine Lagarde said today in remarks posted toYouTube. During a panel discussion in Lima, Peru, she said climate change is all new for the IMF. “We have never done that before — climate change was not on the map--and I can assure you that it's not an easy task to convince some of our board members that actually investing time, resources, research, brain power into those issues is actually macro-critical, and should be pursued,” Lagarde said.
IOWA FARMERS WARN BIDEN ON ETHANOL: Iowa farmers really want Vice President Joe Biden to run. But not necessarily because they're eager to vote for him. Instead, at a time that ethanol's kind of a hard sell, growers of corn and other crops used to make biofuels believe a Biden run would provide them a critical bit of leverage right when they need it. At the moment, the Obama administration is previewing next year's rules for the amount of ethanol that has to be mixed with gasoline - a regulation that has fueled the ethanol industry and earned untold millions for corn growers. Sarah Wheaton reports.
— Farm group blames RFS uncertainty for income drop: Uncertainty about the Renewable Fuel Standard over the past few years has contributed significantly to a downturn in farm income, says a white paper released today by farm groups. Net farm income for 2015 is projected to decrease by 50 percent from the record $123.7 billion of 2013, according to Agriculture Department data. The National Corn Growers Association and the National Farmers Union say the decline is due in large part to questions about the RFS.
API PUBLISHES NEW STANDARDS FOR SHALE DEVELOPMENT: The American Petroleum Institute released two hydraulic fracturing standards today, which is hopes will “provide detailed specifications for pressure containment and well integrity, as well as environmental safeguards, including groundwater protection, waste management, emissions reduction, site planning, and worker training.” ANSI/API RP 100-1 and 100-2 are voluntary, according to API Director of Standards David Miller.
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House backs Crude Exports But Short of Veto Override Margin
Oct 9, 2015 | E&E - Greenwire
By Geof Koss
The House today easily passed legislation to end the decades-old ban on crude oil exports but failed to achieve the two-thirds majority needed to override a promised presidential veto.
Members backed the bill (H.R. 702) by a 261-159 margin, handing Republicans a win on a major energy goal. But that victory was muted somewhat by the failure to secure the 290 votes needed for a veto override.
The White House's veto threat, which called the bill unnecessary, may have cost some Democratic votes (E&ENews PM, Oct. 7).
Rep. Eddie Bernice Johnson (D-Texas) took the unusual step of disavowing the bill that she is a sponsor of, saying it "does not appropriately consider" national security, environmental and consumer impacts of the measure.
Lawmakers repeated a host of familiar arguments for and against the bill, with proponents citing a body of studies that paint a rosy economic portrait and geopolitical benefits of allowing crude exports.
"Everything about this says yes," said Majority Whip Steve Scalise (R-La.). "It's time to lift this relic of the 1970s."
But Rep. Frank Pallone (D-N.J.), the ranking member of the Energy and Commerce Committee, called the bill unnecessary, noting that the administration has authority to allow some exports.
"The bottom line is that it is imperative for Congress to consider a host of factors before we lift the current restrictions and certainly if we are to completely dismantle our nation's ability to restrict oil exports, as proposed by H.R. 702," he said.
Democratic opponents characterized the bill as a giveaway to Big Oil. In a reference to bipartisan interest in a deal, Rep. Earl Blumenauer (D-Ore.) said the measure should be part of a broader energy strategy.
"If you're going to hand out another goody to the oil industry, let's have a more comprehensive approach," he said.
The House debated amendments from members of both parties that addressed a number of aspects of the crude exports debate.
The chamber rejected on a 109-306 vote an amendment by Rep. Justin Amash (R-Mich.) that would have stripped a provision from the bill to boost authorized spending levels for the Maritime Security Program. The provision, added this week by House leaders, won support for the bill from maritime interests, including labor groups, but Amash said it had nothing to do with crude exports and therefore belonged in defense legislation.
Lawmakers voted 414-1 for an amendment offered by Reps. Luke Messer (R-Ind.) and Alan Lowenthal (D-Calif.) that would allow the president to restrict crude exports to state sponsors of terrorism.
A second Messer amendment that would restrict exports of crude and refined petroleum products to Iran was adopted on a 419-0 vote.
Rep. Joe Barton (R-Texas), the original sponsor of the underlying bill who managed the floor debate, also agreed to accept a number of fairly noncontroversial amendments in the interest of attempting to make a 1:40 p.m. flight.
That included an amendment by Reps. John Delaney (D-Md.), Carlos Curbelo (R-Fla.) and Chris Gibson (R-N.Y.) to add language to the bill finding that the United States has reduced its oil consumption over the past decade and that increased investment in clean energy technology and efficiency will lower greenhouse gas emissions and increase national security.
A second climate-related amendment by Rep. Jared Huffman (D-Calif.) that would require the Energy Department to tally the greenhouse gas consequences of lifting the ban was adopted by voice vote after Barton asked the sponsor to forgo a roll call vote.
Huffman agreed, after noting that the majority had blocked other bids by Pallone and himself to calculate the environmental costs of the bill. "Instead of analyzing full impacts before voting, the majority has adopted a 'pollute first, ask questions later' approach," said Huffman. Lifting the 40-year-old ban on exports, he said, would boost oil production especially in environmentally sensitive areas offshore or on public lands.
Also agreed to by voice vote was an amendment by Rep. Brenda Lawrence (D-Mich.) requiring a study of the effects on consumers and the economy of lifting the ban.
Republicans also agreed to accept an amendment by Rep. Henry Cuellar (D-Texas) to authorize DOE to continue developing partnerships in the areas of gas and oil exploration, production and refining with minority-serving institutions.
Barton also agreed to accept a pair of amendments by Rep. Sheila Jackson Lee (D-Texas). The first would require the executive branch to report to Congress within 10 years about the impact of lifting the export ban on "energy and national security." The second would require a report within 180 days on how lifting the ban would help veterans and women in the United States, while promoting energy and national security.
Jackson Lee agreed to Barton's offer to add the amendments on a voice vote but first sought a commitment that they would be considered a serious addition to the underlying bill.
Noting that he would be on the conference committee should the Senate pass its own exports measure, Barton assured his Texas colleague they would.
"Your amendments will be in the conference report that goes to the president if we get that far," he said.
One of the 10 amendments made in order for the debate -- a proposal by Rep. John Garamendi (D-Calif.) that would hand the federal government the power to reduce exports in the event they cause "sustained crude oil supply shortages or sustained crude oil prices significantly above world market levels" -- was not offered without explanation.
The chamber rejected by a 179-242 margin a Democratic motion to recommit that would have added language saying the bill doesn't prevent the federal government from enforcing "federal laws or regulations necessary to protect human health, the environment, or public safety."
"Should Big Oil profits trump the need for pipeline safety?" Huffman asked, eliciting a resounding "no" from Democrats.
Barton called the proposal unnecessary.
Reporter Jean Chemnick contributed.
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Lifting Ban on Crude Oil Exports Will Jumpstart a New Energy Era
Oct 9, 2015 | The Hill - Congress Blog
By Dan K. Eberhart
When an energy bill is introduced in Congress that promises an epic change in the global balance of power, it’s natural that lawmakers, media, and everyday people will debate its merits.
And the repeal of the 40-year-old ban on exporting crude oil represents such a bill.
The ban has been in place since the 1970s, when the U.S. suffered a devastating oil embargo courtesy of the Organization of Petroleum Exporting Countries (OPEC). The embargo instilled fears about U.S. energy dependency and OPEC’s power as a “swing producer,” able to manipulate global petroleum supplies and prices at will. By December 1975, President Gerald Ford signed a ban on most U.S. energy exports that remains in place today.
But today, America’s boom in shale oil and gas exploration has pushed domestic petroleum stockpiles to near historic levels. Thanks to innovations in drilling technologies, the U.S. actuallysurpassed both Saudi Arabia and Russia as the world’s top energy producer in 2014, churning out almost nine million barrels of oil per day –80 percent more than in 2008.
All the signs are pointing to our future as the world’s energy superpower.
In Congress, momentum for energy policy change is gathering. And with pending legislation in both the House and Senate that endorse lifting the ban, it seems as though America is about to cross a great divide.
Should we adopt a “smart,” “all-in” energy policy that includes renewables and environmental protections, but also recognizes that 80 percent of the world’s energy needs are still met by fossil fuels?
Will we recognize that lifting the decades old ban on crude oil is a significant step toward creating an energy interdependent global marketplace – one that provides a stable, alternate energy resource to countries otherwise dependent on hostile oil-producing regimes?
The devil is in the details, of course. But the momentum is growing rapidly.
On Friday, we expect a full House vote on a separate bill to green-light all crude oil and natural gas exports. Faced with plummeting oil and gas prices and economic doldrums that have reverberated throughout the U.S. and the world, the GOP-controlled House, led by current Majority Leader Kevin McCarthy (R-Calif.), is very likely to pass the measure.
The Obama administration has indicated that any move to lift the export ban should be the U.S. Commerce Department’s decision. White House Press Secretary Josh Earnest said the fact that Republicans are advocating for oil exports shows they are in the pocket of oil and natural gas interests, and Obama will oppose any Republican-sponsored bill.
But several Democratic leaders, including Senate Minority Leader Harry Reid (D-Nev.), Sen. Robert Menendez (D-N.J.), and Sen. Heidi Heitkamp (D-N.D.), now suggest that compromise is in order.
An energy “grand bargain” could be struck if comprehensive legislation offered incentives for both parties to act. In this scenario, Heitkamp predicts, Obama would sign an energy bill passed by Congress provided that a package lifting the export ban also included strong incentives and tax breaks for renewables and climate protections.
Removing the export ban will certainly bolster energy companies, currently crippled by low oil prices, and desperate for reformed export rules that would help keep our domestic energy industry alive. But more than bootstrapping our own economy, a vote to end the U.S. crude export ban will usher in a new era of thinking about global energy interdependence and the power of free markets.
It will be a clear message that we stand ready help to vulnerable nations everywhere – from Eastern Europe to Africa to parts of the Middle East, South America and Asia – to find alternate routes of supply that are stable, fairly priced, and secure.
And we can only hope the U.S. will take the leap.
Eberhart is CEO of Denver-based Canary, a privately held oilfield service company.
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Oil Regulators Release Improvement Plan for Agency
Oct 9, 2015 | E&E - Energywire
By Debra Kahn
California oil and gas officials released an assessment yesterday of the regulatory flaws that led to oil wastewater being injected into drinkable aquifers for decades.
Officials disclosed in February that they had been approving injection of wastewater into federally protected aquifers for decades. Oil drillers were injecting wastewater from drilling operations into more than 2,500 wells that were near drinkable groundwater, violating the Safe Drinking Water Act. Under a U.S. EPA-approved emergency plan, the state is aiming to determine which of the wells have to stop injecting by February 2017 at the latest (EnergyWire, July 20).
Over the next two years, the state's Division of Oil, Gas and Geothermal Resources will reorganize its staff, overhaul its record-keeping, adopt new rules for cyclic steaming and designate staff to anticipate regulations for emerging technologies, under the "renewal plan" released yesterday.
Cyclic steam injection is a form of enhanced oil recovery that alternates steam injections and oil extractions from the same well, which state officials said could affect wells' integrity by subjecting them to hot and cool periods. Proposed regulations are due out next month, with a final version expected by December 2016.
The plan is designed to further the state's effort to "bring all the problems of the division to light, bring them out into the bright sunshine, so we could fix them," said DOGGR chief Steve Bohlen, who was appointed by Brown in 2014. "This continues in that same vein."
State officials also issued an evaluation of their activities in one of the six districts that California is divided into for permitting purposes. The review, mandated under the 2010 law S.B. 855, is supposed to be completed every year. The latest review is the first since 2011 and covers only the Los Angeles Basin.
It finds that the district has been plagued by poor record-keeping, poor storage of files and missing data. Seventeen percent of underground injection projects in the district have incomplete data, down from 56 percent in 2011. Additionally, most injection projects have not been reviewed annually, as state and federal law requires. The report found that the majority of projects have not been reviewed since 2007.
While most of the illegal wastewater injection wells were not in District 1, the region does contain about 268 injection projects, 154 of them active, according to the report. State officials said none of them were injecting into drinkable aquifers, but environmentalists said that couldn't be proved from the report and that wells across the state could be similarly uninspected.
"DOGGR is now claiming since they've investigated these wells since February, those have been taken off the danger list, but whether or not that's true is unclear from this report," said Hollin Kretzmann, an attorney with the Center for Biological Diversity, which has sued the state over the emergency injection well regulations as well as hydraulic fracturing regulations enacted last year.
"What's alarming is the broader picture," Kretzmann said. "This is just the latest demonstration that DOGGR is not up to the task of corralling the state's oil and gas industry. DOGGR has been totally asleep at the wheel in District 1, and there's no indication in this report it wouldn't also apply to other districts."
Kretzmann said an Alameda County Superior Court judge this week overruled the state's motion to dismiss the injection lawsuit and that he expects a hearing to be scheduled by December. "That's a huge victory for us and signals our case is really strong, and we fully expect to win on the merits," he said.
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Capito Bill Would Clip EPA's Wings on Clean Power Plan -- CBO
Oct 9, 2015 | E&E - Greenwire
By Jean Chemnick
Sen. Shelley Moore Capito's bill to scuttle U.S. EPA's power plant carbon rules would also severely restrict the scope of any replacement rules, the Congressional Budget Office said yesterday.
The West Virginia Republican's bill, S. 1324, would kill the Clean Power Plan by allowing states to opt out of compliance at will without fear that a federal implementation plan would be constructed to take its place, the CBO report noted. It also would require the agency to set aside rules for new and modified facilities that were final in August and that together make up the core of President Obama's second-term Climate Action Plan.
While the measure would allow the agency to put forward rules to take their place -- and CBO assumes that EPA would do so -- it's not clear that those rules could require technology that differs from a business-as-usual scenario. Rules for existing plants could not be promulgated until EPA makes a report to Congress on their climate and economic effects and issues state-specific plans.
A separate provision of the bill, which CBO does not mention, would bar EPA from regulating under Section 111(d) of the Clean Air Act at all if it has already done so under Section 112, effectively codifying in law a legal objection often raised by opponents of the Clean Air Act that will figure in coming litigation. EPA's 2011 mercury and air toxics rule is written under Section 112.
Rules for new and modified facilities must be based "on actual emissions levels achieved by at least six different electric generating units across the United States when operating for a continuous 12-month period." So, in effect, they couldn't go beyond the current state-of-the-art technology for newly built coal and natural gas generation.
The report acknowledges that the Capito measure "would not prohibit EPA from continuing to work on activities related to power plants, such as developing guidance and providing technical assistance to states." But David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, said it would dramatically change EPA's regulatory authority.
"It's basically saying that instead of being a plumber that comes to your home and fixes your pipes, [EPA is] now allowed to give you advice over the phone," he said.
The Environment and Public Works Committee approved the Capito bill in August, and Senate Majority Leader Mitch McConnell (R-Ky.) has expressed his support. It tracks with his strategy of persuading state governors to "just say no" to implementing EPA's rule.
But while the House has passed roughly similar legislation, it remains unclear whether McConnell will make room for Capito's bill in a busy fall legislative schedule -- especially as it seems unlikely it would garner the 60 votes needed to pass.
Instead, McConnell and Environment and Public Works Chairman James Inhofe (R-Okla.) are readying Congressional Review Act resolutions for after EPA publishes the new and existing power plant rules in the Federal Register. They could pass the Senate with a simple majority of the vote, and while they would not be expected to withstand a presidential veto, McConnell hopes they would show the world ahead of this year's climate talks in Paris that Congress is not united behind Obama's climate pledges.
Doniger criticized Republicans for seeking to undermine global confidence in the U.S. pledge.
"The Republicans spent more than a decade arguing that we shouldn't act alone because other countries are unreliable, now they're arguing that they shouldn't act because we're unreliable," he said.
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Ga. Hammers Ahead on Rule as it Mulls Lawsuit
Oct 9, 2015 | E&E - Energywire
By Kristi E. Swartz
The director of Georgia's Environmental Protection Division told a packed room of electric utility officials, policymakers, clean energy advocates and others to set aside their personal views of U.S. EPA's Clean Power Plan and help the Peach State draft a plan that would meet its carbon-reduction goals.
"Irrespective of your view on whether the plan is great or not great, when you get around to doing this, it's historic, and it's not the typical approach under the Clean Air Act," said Judson Turner at the EPD's first stakeholder meeting since the final rule was issued in August.
"Whether it's legal, we'll see," he added.
Georgia is not one of 14 states seeking to challenge the rule once it is published in theFederal Register, but the option to sue remains. In his short talk yesterday morning, Turner was firm that EPD would draft a compliance plan to submit to EPA, but questioned the Clean Power Plan's legality several times.
"We're going to be put in a position to try and put together a plan, and in consultation here with the governor and the attorney general here in Georgia, and they are going to make their position on" whether to take legal action, Turner said.
In the meantime, Turner said Georgia's governor has directed him to work as best as he can within the existing legal framework to write a plan that is good for the state.
"He means reliability, he means affordability," Turner said, referring to keeping the lights on and electric utility bills from skyrocketing, two chief concerns of the rule's critics.
When asked for further details afterward, Turner said he was not in a position to make news on Georgia's legal strategy but offered this:
"There's going to be lawsuits in 20-plus states, I suspect Georgia is going to definitely consider that," Turner said in an interview withEnergyWire.
A spokesman for Georgia Attorney General Sam Olens' office declined comment on the issue at this time.
Georgia must cut its power-sector carbon emissions rate 34 percent from 2012 levels by 2030 to meet targets set by EPA's Clean Power Plan. The state intends to ask EPA for an extension when it files its initial plan next September (EnergyWire, Sept. 29).Getting down to specifics
Yesterday's meeting marked a shift between just talking about the Clean Power Plan to developing a process on how the state will meet its targets. EPD plans to hold another large stakeholder meeting in January, but likely will host smaller meetings on specific topics starting later this month.
Turner told EnergyWire that Georgia probably won't make any key decisions on its plan until January. These decisions include whether the state will pursue a rate- or mass-based plan and whether it will link up with neighboring states for a carbon market or prepare itself to trade with states nationwide.
A rate-based plan would require the power fleet to adhere to an average amount of carbon per unit of power produced. A mass-based plan would cap the total tons of carbon the power sector could emit each year.
States that link up to form their own carbon trading market all would have to agree to pick a rate- or mass-based one. The group cannot contain a mix of states that have chosen different compliance paths.
This critical decision has particular significance for the Southeast, which has three states -- including Georgia -- that are building nuclear reactors, a policy analyst said.
Those states would benefit directly from those reactors if the state uses a rate-based plan. They get an indirect benefit from the additional emission-free nuclear power if a mass-based plan is followed.
"I think this is a key question ... are all of your states in your region going to go mass-based or are they going to go rate-based?" said David Hoppock, a senior policy associate with Duke University's Nicholas Institute for Environmental Policy Solutions. "I think that is much more an open question in the Southeast because of the states with new nuclear units."
Turner said Georgia has worked with South Carolina and Tennessee when it filed comments on the draft rule regarding nuclear power plants under construction. The states asked that EPA allow those emission-free projects to count toward compliance.
Beyond that, he hasn't talked with air regulators in neighboring states at this point but said it likely will happen soon. Georgia is home to Southern Co., which operates electric utilities here and in Alabama, Florida and Mississippi, which means the states already are connected, at least when it comes to transmission lines.
"I suspect there will be multiple conversations with those states," Turner said.
For more information on Georgia and the Clean Power Plan, visit E&E'sPower Plan Hub.
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Gov. Cuomo Aims to Link U.S. Northeast's Carbon Market with Calif.'s
Oct 9, 2015 | E&E - Climatewire
New York Gov. Andrew Cuomo (D) yesterday announced his state will "explore the possibility" of linking the Northeast's carbon cap-and-trade system with California's, envisioning a "North American market" where emissions allowances are bought and sold across the United States as well as in Canada.
During a speech alongside former Vice President Al Gore yesterday at Columbia University, Cuomo called carbon markets "a powerful tool for reducing the pollution that is contributing to climate change," but added, "Small regional coalitions are not enough."
"Therefore, today, I have directed my administration to reach out to our partners in other states, such as California, as well as the Canadian provinces, about building a broader North American market to collectively reduce harmful emissions," Cuomo said. "Hopefully, this will drive a national discussion to every state in the nation."
In a release made public after the remarks, the governor's office added that the administration will pursue a linkage between the Regional Greenhouse Gas Initiative (RGGI), a cap-and-trade system that involves eight other Northeastern states, and California's carbon market, which is also linked to the Canadian provinces of Quebec and Ontario.
"Connecting these markets would be more cost-effective and stable, thereby supporting clean energy and driving international carbon emission reductions," the release stated. "New York State will also engage other states and provinces to build a broader carbon market and further drive an international discussion that encourages government action on carbon emissions."
Praising both New York and California for the states' aggressive climate policies in a speech after Cuomo's remarks, Gore said, "We really do have the prospect of seeing the emergence of a North America market in carbon emissions and the instruments that will accelerate that decarbonization of our economy."
This announcement was also cheered by environmental advocates.
"The Governor's commitment to work toward a North American carbon market underscores the importance of putting a price on carbon and highlights the effectiveness of existing cap-and-trade programs, including the nine-state Regional Greenhouse Gas Initiative (RGGI) and the California-Quebec system," Derek Walker, associate vice president of global climate at the Environmental Defense Fund, said in a statement.
However, representatives for the Regional Greenhouse Gas Initiative and the California Air Resources Board, which administers the state's cap-and-trade system, provided no additional details on the potential linkage. It remains unclear if the two systems are actively discussing the idea.
"We are committed to working with others to expand the number of jurisdictions that put a price on carbon," a spokesman for the California Air Resources Board said in a statement.No immediate response from the West
RGGI did not return a request for comment in time for publication, directing an emailed inquiry to the New York State Department of Environmental Conservation.
Carbon trading between states is widely seen as a key mechanism that may be used to comply with the Obama administration's sweeping new rule regulating greenhouse gas emissions from power plants. Yesterday, acting EPA air chief Janet McCabe told the House Energy and Commerce Subcommittee on Energy and Power that the Clean Power Plan "does not set in place a cap-and-trade program," but she did say that interstate trading is a tool that could help states maintain an affordable and reliable power supply (Greenwire, Oct. 7).
RGGI is regarded as a model for interstate trading under the rule. New York, for example, is expected to easily meet EPA's targets laid out by the final Clean Power Plan, and a recent analysis by the nonprofit Acadia Center determined that it and other states will be able to use RGGI to comply with the Clean Power Plan if the program makes only "a few minor changes."
Bob Perciasepe, president of the Center for Climate and Energy Solutions, said in an emailed statement that "market-based approaches to reducing carbon emissions are already proving to be effective and efficient," adding that many additional states "are looking into how they could use these approaches to implement the Clean Power Plan."
Cuomo's announcement was made along with a series of othercommitments yesterday, including a $1 billion pledge to the New York solar industry and a memorandum of understanding between New York and other states, provinces and cities called the Under 2 MOUcommitting to help maintain Earth's average temperature rise below 2 degrees Celsius. California, which has been gathering participants to the MOU ahead of the U.N. climate talks in December, now counts 42 signatories in 19 countries.
"Climate change is a reality, and not to address it is gross negligence by government and irresponsible as citizens," Cuomo said.
California Gov. Jerry Brown (D) put out a statement praising Cuomo for signing the MOU but not mentioning the possibility of linking markets.
"Across the globe, imaginative leaders of states, provinces and cities are taking decisive action to stem the mounting threats of global warming," Brown said. "Governor Cuomo's participation marks a real milestone in the subnational movement to block dangerous climate change."
Reporter Debra Kahn contributed.
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Amtrak Threatens Partial Shutdown
Oct 9, 2015 | The Hill - Transportation
By Keith Laing
Amtrak is warning Congress that it will have to shut down service on many of its long-distance train routes if lawmakers do not extend a federal deadline for automating trains.
Railroads currently have until Dec. 31 to install an automated train navigation system known as Positive Train Control (PTC), which regulates the speed and track movements of trains.
Amtrak stays it will be able to meet the deadline on most of the tracks it owns in the Northeast, but the company says it is reliant in other parts of the country on freight railroads that have already said they will shut down service in January 2016 to avoid fines for not meeting the deadline.
"Most of the 21,000-mile national network that Amtrak operates over is owned by other railroads that host our trains. The host is responsible for installation on their infrastructure," Amtrak CEO Joseph Boardman wrote in a letter dated Oct. 5 to Sen. John Thune (R-S.D.), who is chairman of the Senate committee that handles transportation issues.
"Many freight railroads have stated that they may refuse to transport certain freight and may suspend passenger service on their track that is not PTC-compliant, if the current December 31, 2015 deadline is not extended," Boardman wrote.
The December deadline for automated trains was set under a law passed in the aftermath of a 2008 commuter rail crash in California.
Lawmakers have moved to extend the deadline at the behest of freight companies, but the effort stalled after a deadly Philadelphia Amtrak crash in May that killed multiple passengers.
Boardman said in his letter that Amtrak will have little choice but to shut down service on routes that operate on freight rail tracks, even though the company supports moving to the automated PTC train navigation system.
"Based on information that we have gathered from the hosts, Amtrak will plan on suspending service on the national network beginning mid-December on routes that are not PTC complaint or where MTEAs have not been obtained," he said, noting that "this suspension will also impact Amtrak's state supported services that operate in partnership with states across the country" such as California, Connecticut, Illinois and Virginia.
"Amtrak expects to operate Northeast Corridor services where PTC has been installed and will operate our national network of services to the extent permitted by the law and FRA," Boardman wrote. "Should Congress fail to pass legislation to extend the PTC deadline beyond December 31, 2015, there will be significant impacts to our service and our customers and tenant railroads."
Boardman told lawmakers Amtrak "will need to begin to notifying passengers through our reservation system of disruptions that may occur as a result of the PTC deadline," beginning on Dec. 1.
"The potential economic impacts would also be substantial, since a vast majority of our network would be inoperable without an extension of the deadline," he wrote. "We will work with the multitude of partners that rely on Amtrak service, from state and local partners, to commuter rail operators, to the freight railroads, to ensure that passengers and partners are aware of any disruptions that may occur."
Supporters of extending the deadline have sounded the alarm about a potential shutdown of the nation's train services.
"I believe, absent Congressional action, we will begin to see the effects of the deadline four to six weeks prior to the December 31st deadline as railroads begin to cycle traffic off their lines," Thune, who is chairman of the Senate Commerce, Science and Transportation Committee, said during a recent confirmation hearing for Acting Federal Railroad Administration chief Sarah Feinberg.
“This is a looming economic and safety disaster that is completely avoidable," Thune continued.
Passenger advocacy groups have pressured Congress and rail companies to figure out a way to keep trains on the tracks at the beginning of next year.
"You're 17 times more likely to be killed in a car crash than a train accident, so for Congress to allow the absence of PTC to force commuters onto highways is the ultimate case of letting the perfect get in the way of the good,” National Association of Railroad Passengers President Jim Mathews said in a statement.
Transportation department officials in the Obama administration have told lawmakers they have little choice but to enforce the law that Congress passed.
"We will enforce the law as of the deadline of Dec. 31, so on Jan. 1 we will enforce the deadline and the law," Feinberg said in her confirmation hearing.
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