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Senators Spar Over Cybersecurity Legislation as Vote Looms
Oct 21, 2015 | E&E - Energywire
By Blake Sobczak
The U.S. Senate opened debate on a cyberthreat sharing bill yesterday, possibly setting the stage for a key vote on the legislation by as early as next week. -
Lawmakers Agree to Extend Automated Train Deadline by 3 Years
Oct 21, 2015 | The Hill - Transportation
By Keith Laing
Lawmakers in the House and Senate have reached an agreement to extend for three years a federal deadline for a new automated train system, possibily avoiding a partial railway shutdown. -
Pollution Prevention Projects Help Block Toxics -- Study
Oct 21, 2015 | E&E - Greenwire
By Ben Panko
American manufacturing facilities have prevented the release of billions of pounds of toxic chemicals through the use of "pollution prevention projects," according to a new study using U.S. EPA data. -
Republicans, Environmentalists Ramp Up Attacks On EPA Ozone Standard
Oct 21, 2015 | InsideEPA
By Stuart Parker
Republicans and environmentalists are ramping up competing attacks on EPA's decision to tighten its ozone air limit from 75 parts per billion (ppb) down to 70 ppb, with the GOP House holding an Oct. 22 hearing on the data behind the standard while advocates claim the agency heeded the utility sector's call not to tighten the limit below 70 ppb. -
EPA Defends Rationale For Avoiding Distinct 'Secondary' Ozone Air Limit
Oct 21, 2015 | InsideEPA
By Stuart Parker
EPA is defending the scientific rationale for its decision to avoid setting a distinct "secondary" ozone air standard designed to protect the environment separate from its strengthened "primary" health-based limit issued this month, after White House reviewers told the agency to ensure the decision is based on a review of ozone's welfare effects. -
EPA's Final Climate Rule Made Compliance Easier for Some State Regulators, Harder for Others
Oct 21, 2015 | E&E - Climatewire
By Elizabeth Harball
Whether they plan on embracing or fighting the rule, Virginia, Kansas, Pennsylvania and Missouri are all planning on writing state plans to submit to U.S. EPA proposing how they aim to comply with the Obama administration's recently released Clean Power Plan that seeks to curb greenhouse gas emissions from power plants. -
'Assume the Rule Will Survive,' Former EPA Chief Tells States
Oct 21, 2015 | E&E - Greenwire
By Amanda Reilly
Former U.S. EPA Administrator William Reilly said today the Clean Power Plan would survive legal challenges, urging regulators to start writing state plans. -
Countries Are Set to Dramatically Cut Their Carbon Emissions. And It Still Isn’t Enough.
Oct 21, 2015 | The Washington Post
By Chris Mooney
In a new analysis released as the Paris climate change summit nears, the International Energy Agency says countries’ collective pledges to reduce emissions would lead to a dramatic disconnect between using energy and emitting greenhouse gases. -
Clock is Ticking on Bid to Block EPA Water Rule
Oct 21, 2015 | The Hill - Pundits Blog
By Daren Bakst
If ever a rule deserved killing, it's the new water rule issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. A classic example of "regulators gone wild," the rule seeks to regulate almost every "body" of water in these United States. -
Appeals Court to Rule Swiftly on WOTUS Legal Battle Venue
Oct 21, 2015 | E&E - Greenwire
By Annie Snider
A federal appeals court will hold oral arguments in December on whether it will review the legal battle over the Obama administration's controversial water rule or send the challenges to district court.
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Senators Spar Over Cybersecurity Legislation as Vote Looms
Oct 21, 2015 | E&E - Energywire
By Blake Sobczak
The U.S. Senate opened debate on a cyberthreat sharing bill yesterday, possibly setting the stage for a key vote on the legislation by as early as next week.
The "Cybersecurity Information Sharing Act of 2015," sponsored by Sen. Richard Burr (R-N.C.) and better known as CISA, would grant liability protection to companies that disclose cybersecurity data with the U.S. government while revising the way threat intelligence spreads between the private and public sectors.
Critics of S. 754, including major technology firms such as Google and Twitter, claim it doesn't do enough to safeguard Americans' personal information. Proponents argue that the legislation offers the best opportunity for Congress to help combat a slew of recent cybersecurity incidents, from the breach of employee data at the Office of Personnel Management to attacks on privately owned critical infrastructure.
Sen. Dianne Feinstein (D-Calif.), vice chairwoman of the Senate Select Committee on Intelligence and a supporter of information-sharing efforts, said yesterday that "it's only a matter of time" before critical networks such as those underpinning major banks or the electric grid are targeted by cyberattacks "that could seriously affect hundreds of thousands of lives."
"So, clearly, it's well beyond the time to act," she added.
Opponents of the legislation contend that more information sharing would not have prevented recent cyber incidents, such as an intrusion into OPM's networks that affected more than 22 million current and former federal workers who saw their data stolen (E&E Daily, July 10).
Sen. Ron Wyden (D-Ore.), a vocal skeptic of the bill, pointed to the OPM breach to argue that "if you can't protect it, don't collect it."
"This bill would allow companies to hand over a large amount of private and personal information about millions of their customers with only a cursory review," he said, echoing concerns by privacy and civil liberties groups such as the Electronic Frontier Foundation.House doubts
If the Senate can sort through nearly two dozen amendments and pass CISA, the bill would need to be reconciled with two similar pieces of information-sharing legislation that sailed through the House earlier this year.
But Rep. Michael McCaul (R-Texas), chairman of the House Homeland Security Committee and lead sponsor of one of the related bills, raised doubts about the chances he'll see eye to eye with his colleagues in the Senate.
He voiced concerns that CISA in its current form gives the U.S. intelligence community too much custody over information sharing, as opposed to the Department of Homeland Security, a civilian agency.
"I would urge, with whatever power you have, to contact the Senate if you have the same concerns that I do and let them know that this is not the right approach," he told attendees at a cybersecurity forum hosted by Kaspersky Government Security Solutions Inc. yesterday, adding that an "NSA-centric rather than a DHS-centric bill will have little or no hope of passing the House."
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Lawmakers Agree to Extend Automated Train Deadline by 3 Years
Oct 21, 2015 | The Hill - Transportation
By Keith Laing
Lawmakers in the House and Senate have reached an agreement to extend for three years a federal deadline for a new automated train system, possibily avoiding a partial railway shutdown.
The agreement calls for moving a Dec. 31 deadline for railroads to install an automated train navigation system known as Positive Train Control (PTC) to the end of 2018 at the earliest. The system, which regulates the speed and track movements of trains, has been touted as a game changer for train safety, but railroads have complained it is difficult to implement.
Under the new agreement, railroads would have an extra three years to work on the automated train conversion. They will also have the option of requesting an extra two years to work on the installation if they submit plans for doing the work by Dec. 31, 2018. The requests would have to be approved by the Department of Transportation on a case-by-case basis.
Critics have complained the agreement will result in a "blanket five-year" extension for railroads to install technology that has been touted as a life-saver that can prevent deadly train accidents.
The extension will be added to a highway funding bill that is being considered this week by the House, according to officials with the chamber's Transportation and Infrastructure Committee.
"The #STRR Act includes language bridging the House & Senate approaches to extending #PTC implementation deadline," the panel tweeted about the highway bill, which is known as the Surface Transportation Reauthorization and Reform Act of 2015.
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 and commuter rail companies, but the effort stalled after a deadly Philadelphia Amtrak crash in May that killed eight passengers.
A highway funding bill that was passed by the Senate in July included language that would change the mandate for railroad companies to implement the automated train system by year's end to a requirement that they submit plans by that date for installing the technology in the near future.
The House, meanwhile, had introduced a bill in the lower chamber that would push back the deadline for most railroads to install automated train technology until December 2018. The House measure would have also allowed the Transportation Department to grant exemptions to the automated train deadline beyond 2018 to individual rail companies on a case-by-case basis.
The provisions that have been added to the highway bill are being touted as a compromise between the two chambers' approaches to the automated train extension.
Critics of giving railroads more time to implement the automated train system are unimpressed with the details of the compromise proposal.
"This five year extension of life-saving technology is way too long, with way too little guarantee that PTC implementation will get done," Sen. Richard Blumenthal (D-Conn.) said in a statement.
"A short-term patch of highway funding should not be the vehicle for such a profoundly important measure," he continued. "I will work for a reasonable measure that provides adequate time but holds railroads accountable through year-by-year review of progress toward fully-implemented PTC.”
Lawmakers have been feeling pressure to move the automated train deadline because several railroad companies, including Amtrak, have threatened to shut down service at the end of the year unless Congress relents on the mandate.
“If Congress fails to extend the deadline, freight and passenger railroads may have little choice but to suspend commuter service and sharply curtail freight shipments,” the Washington, D.C.-based American Public Transportation Association (APTA) and the Association of American Railroads (AAR) said this week. “This would affect the 26 commuter rail systems providing 1.7 million trips daily and 90 freight railroads that provide essential goods to communities across the country.”
Supporters of extending the deadline have cited the threats of a 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," Sen. John Thune (R-S.D.), who is chairman of the Senate Commerce, Science and Transportation Committee, said during a recent confirmation hearing for the Federal Railroad Administration's Acting Administrator Sarah Feinberg.
Critics such as Blumenthal, meanwhile, have complained that a "blanket extension" of the automated train deadline lets railroads off the hook for improving safety for passengers.
"It has been more than 45 years since the National Transportation Safety Board first urged railroads to implement positive train control — an unacceptable delay in implementation of this critical, life-saving technology that has allowed numerous, preventable tragedies," Blumenthal said in a statement after the House PTC extension measure was introduced in September.
"Extensions should be granted only to railroads that have demonstrated diligent, good faith efforts to meet the mandate," he continued then. "Only by holding railroads’ feet to the fire will this critical, life-saving technology finally be implemented.”
Transportation Department officials in the Obama administration have told lawmakers they have little choice but to enforce the law that Congress passed.
"The reality is without Congress doing something, we've got a deadline coming up and we're going to have to enforce that deadline," Transportation Secretary Anthony Foxx told reporters earlier this month.
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Pollution Prevention Projects Help Block Toxics -- Study
Oct 21, 2015 | E&E - Greenwire
By Ben Panko
American manufacturing facilities have prevented the release of billions of pounds of toxic chemicals through the use of "pollution prevention projects," according to a new study using U.S. EPA data.
The study published this week in the journal Environmental Science and Technology found that the average source reduction project reduces pollution by emitters by about 9 to 16 percent, and since 1991 these programs have prevented the release of between 5 billion and 14 billion pounds of toxic chemicals.
The study examined more than 370,000 projects logged in EPA'sToxics Release Inventory, which has been required to collect data on pollution prevention programs since 1990 (Greenwire, April 13, 2006).
"We were kind of checking to make sure ... are they really making a difference, or, to some extent, is it just greenwashing?" said co-author Daniel Teitelbaum, an EPA analyst who worked with the TRI until earlier this year.
"We wanted to really understand what effect had all these projects had over the last 20 years," said lead author Matthew Ranson, an economist at the consulting firm Abt Associates Inc.
Pollution prevention projects can range from changing raw materials or solvents, Teitelbaum said, to simply checking one's inventory more carefully. Some of these projects can result in large pollution reductions, while others appeared to have no effect at all. The projects are largely voluntary, Ranson said, so data on their effectiveness could encourage businesses to employ them and help them choose the best practices.
"We hope that business will see pollution prevention as something that's cost-effective and as something that has environmental results that benefit communities," Teitelbaum said.
"It's just been a very effective technique for addressing toxic pollution," Ranson concluded.
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Republicans, Environmentalists Ramp Up Attacks On EPA Ozone Standard
Oct 21, 2015 | InsideEPA
By Stuart Parker
Republicans and environmentalists are ramping up competing attacks on EPA's decision to tighten its ozone air limit from 75 parts per billion (ppb) down to 70 ppb, with the GOP House holding an Oct. 22 hearing on the data behind the standard while advocates claim the agency heeded the utility sector's call not to tighten the limit below 70 ppb.
The fights over whether the standard is unnecessarily stringent or unlawfully weak under the Clean Air Act continue more than two weeks after EPA issued its Oct. 1 decision to tighten the 2008 limit of 75 ppb. While the rule was undergoing White House Office of Management & Budget (OMB) review, sources told Inside EPA that the agency had selected 70 ppb for the standard but that some White House officials were seeking a 68 ppb standard.
That article, and subsequent coverage by other news organizations, prompted House science panel Chairman Lamar Smith (R-TX) to seek information from EPA Administrator Gina McCarthy and White House Chief of Staff Denis McDonough. Smith said he has concerns that the alleged push for the 68 ppb standard was for "purely political reasons" and not based on scientific evidence on ozone's impacts on humans, as required by law.
In an Oct. 6 response to Smith, EPA Associate Administrator Laura Vaught says that EPA has posted in a public docket details of written comments it received from OMB on its drafts of the final ozone standard rule and the Regulatory Impact Analysis that accompanied it, as well as EPA's written responses.
"In light of the rule's promulgation, setting the standard at 70 ppb, we are confident that the documents available in the docket will assuage your earlier concerns, and simply validate that the interagency process was used appropriately, as always, to ensure that the American people have an ozone standard that was thoroughly analyzed and grounded in science," she writes.
But the documents available in the docket at press time do not appear to reveal much if any debate over the 70 ppb standard or address questions that Smith raised in his letter about a possible 68 ppb limit.
House Science, Space & Technology Committee staff say that as of press time, EPA has not supplied any documents about the ozone national ambient air quality standard (NAAQS), nor had the White House replied to the letter addressed to McDonough, despite Smith setting an Oct. 8 deadline for a response.
"Just because the rule was released at 70 ppb does not mean that the White House did not put pressure on the EPA to enact a lower ozone standard at the behest of the environmental lobby," a House GOP source says.
The House science panel will hold a hearing Oct. 22 to discuss the science behind the new NAAQS, during which such allegations may resurface. The hearing will feature as witnesses former George W. Bush EPA air policy chief Jeff Holmstead, now an industry attorney with Bracewell & Giuliani, Michael Honeycutt, director of toxicology for the Texas Commission on Environmental Quality and Seyed Sadredin, executive director of the San Joaquin Valley Air Pollution Control District in California -- all of whom have questioned the need for a stricter ozone limit.
Primary NAAQS
Under the Clean Air Act as interpreted by the courts, EPA must set a primary NAAQS -- designed to protect the public health "with an adequate margin of safety" -- based exclusively on the scientific record before the agency and without considering implementation costs. EPA earlier proposed setting the NAAQS at a level within a range of 65 ppb to 70 ppb, tougher than the former level of 75 ppb set by the Bush administration in 2008.
In the final rule, not yet published in the Federal Register, EPA opted to set the primary NAAQS at 70 ppb, at the top of the range twice unanimously recommended by the agency's Clean Air Scientific Advisory Committee (CASAC). EPA set the secondary standard, designed to protect the environment, at the same level.
On an Oct. 15 webinar hosted by the Environmental Law Institute (ELI), John Walke -- an attorney with the Natural Resources Defense Council (NRDC) and a former EPA air official -- again reiterated environmentalists' outcry over the outcome of the ozone NAAQS rulemaking. "We believe it to be a failure of responsibility," Walke said, a "missed opportunity" to set a truly health-protective standard and a "stunning" decision.
Environmental and public health groups including NRDC lobbied EPA to set the standard at 60 ppb, pointing to evidence of adverse health effects even at this low level. Industry and mostly Republican lawmakers at the state and federal levels, and also some Democrats, strongly countered this push with their own campaign for EPA to leave the NAAQS unchanged, warning of severe economic impacts from compliance with a tougher rule.
All sides in the debate concede that EPA has a very strong record of defending its NAAQS rules for the six "criteria" air pollutants in appellate court challenges. The agency successfully defended its 2008 ozone NAAQS set at 75 ppb from environmentalists' claims that is was too weak, and industry claims it was unjustifiably stringent, despite setting the limit at a level weaker than the 70 ppb then recommended by CASAC.
EPA therefore enjoys considerable discretion to set the standards based upon its interpretation of the science, so long as it clearly explains its rationale. To win in court, litigants contesting a NAAQS must prove the agency's decision-making was "arbitrary and capricious" -- which is hard to substantiate based on the scientific record.
Nevertheless, Walke on the call hinted at possible arguments that supporters of a more-stringent primary NAAQS could make in any future suit filed in the U.S. Court of Appeals for the District of Columbia Circuit.
Walke contrasted the most recent ozone NAAQS review with a discretionary previous rulemaking effort undertaken by former Obama EPA Administrator Lisa Jackson in 2011. Spurred by environmentalists' arguments that the Bush EPA wrongly ignored CASAC to set the standard at 75 ppb, Jackson advocated a 65 ppb standard, Walke said, based on the science then available -- though she eventually sent to OMB for review a final 70 ppb limit.
President Obama then directed EPA to set the rulemaking aside. The White House justified the decision by arguing that the reconsideration was a discretionary decision and would have imposed an unreasonable implementation burden on states when they were still implementing the 2008 standard. At the time, a mandatory five-year review of the ozone NAAQS was due in March 2013, although EPA slipped behind schedule in meeting this mandate.
Walke on the webinar criticized McCarthy's public statements to the effect that additional evidence gathered since Jackson's reconsideration justifies setting the Oct. 1 NAAQS at 70 ppb. "In fact the opposite is true," Walke said, pointing to new studies showing adverse health effects at lower levels of ozone.
Safety Margin
Walke noted CASAC's advice to EPA that a 70 ppb NAAQS would offer little if any margin of safety. In a June 26, 2014 letter, CASAC said, "Although a level of 70 ppb is more protective of public health than the current standard, it may not meet the statutory requirement to protect public health with an adequate margin of safety."
CASAC concluded, "our policy advice is to set the level of the standard lower than 70 ppb within a range down to 60 ppb, taking into account your judgment regarding the desired margin of safety to protect public health."
EPA said it based its 70 ppb decision on the assumption that a level of 72 ppb protects healthy adults, and that 70 ppb offers the necessary margin of safety to protect vulnerable populations such as children and asthmatics. Walke compared the Bush EPA's decision to set the standard at 75 ppb, based on an assumption that 80 ppb was safe and a 5 ppb margin of safety would be adequate, with the Obama EPA's 2 ppb margin of safety.
Walke also noted a Sept. 25 meeting held shortly before the release of the final NAAQS between EPA senior officials including acting air policy chief Janet McCabe and officials from the Edison Electric Institute (EEI), representing the electric generating sector, which backed a 70 ppb limit.
Although EPA had by this stage already sent its final rule set at 70 ppb to the White House Office of Management and Budget (OMB) for pre-publication review, Walke notes the support of EEI for a 70 ppb standard in a document presented at that meeting and subsequently entered into the public record.
In that document, titled "Reasons the Agency Should Finalize an Achievable Level of 70 ppb," EEI said that the agency "could choose to retain the current standard, but it is clear that the Agency will be revising the standard downwards. A final ozone standard of no lower than 70 ppb . . . would both provide real environmental benefit and give states a reasonable path forward to implement the final standard."
EEI's Concerns
EEI based its opinion on concerns that a tougher standard than 70 ppb would be too difficult to implement, especially for the power industry which must also comply with EPA's Clean Power Plan to curb greenhouse gas emissions.
The group was further concerned that a standard set below 70 ppb risks making implementation impossible in parts of the West that experience high "background" ozone that stems from natural causes and foreign emissions, because high background levels that regulators cannot control could reach or exceed an even tougher NAAQS.
EEI said EPA has "ample" scientific support for a 70 ppb standard. "EPA relies on both controlled human exposure studies and epidemiological studies in assessing impacts of a lowered standard and these studies support finalizing a standard at 70 ppb, provide real environmental benefit while also remaining implementable for states and the business community," according to the document.
Previously, EEI in March 17 comments on the proposed version of the NAAQS said it "recommends that EPA should retain the current level of the primary ozone standard at 75 ppb. Numerous commenters note that there exists no strong justification for lowering the primary standard from its current level. Indeed, the record provides ample justification for retaining the current standard."
But the comments added that, "Should EPA nonetheless determine that a revision of the standard is necessary, the Agency should not set the final primary standard below the top end of its proposed range of 70 ppb."
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EPA Defends Rationale For Avoiding Distinct 'Secondary' Ozone Air Limit
Oct 21, 2015 | InsideEPA
By Stuart Parker
EPA is defending the scientific rationale for its decision to avoid setting a distinct "secondary" ozone air standard designed to protect the environment separate from its strengthened "primary" health-based limit issued this month, after White House reviewers told the agency to ensure the decision is based on a review of ozone's welfare effects.
In the Oct. 1 final rule tightening the primary ozone national ambient air quality standard (NAAQS) down to 70 ppb from the 2008 limit of 75 ppb, the agency says that setting the secondary limit at 70 ppb will satisfy a Clean Air Act mandate that the two standards protect public health and welfare. The rule marks the latest time the agency has refused to set a district secondary NAAQS for ozone, after rejecting a similar request in the 2008 rulemaking.
Environmentalists sued EPA over that decision and the U.S. Court of Appeals for the District of Columbia Circuit in a per curiam opinion issued in July 2013 in State of Mississippi v. EPA, et al. said the agency's explanation in the 2008 rule for matching the standards was too weak, citing prior court rulings on the issue.
"It is insufficient for EPA merely to compare the level of protection afforded by the primary standard to possible secondary standards and find the two roughly equivalent," the court said, referencing a February 2009 D.C. Circuit ruling in American Farm Bureau Federation v. EPA. In that case the court in another per curiam opinion remanded the agency's 2006 annual fine particulate matter NAAQS to the agency, ordering it to better justify the scientific basis behind its decision to set a level outside the range recommended by its science advisers.
"Because EPA failed to determine what level of protection was 'requisite to protect the public welfare,' EPA's explanation for the secondary standard violates the [Clean Air Act]," the court said.
When the D.C. Circuit subsequently remanded the 2008 secondary ozone standard to EPA for better explanation, the agency eventually said that its October rulemaking would respond to the remand.
While the final version of the ozone NAAQS was under White House Office of Management & Budget (OMB) pre-publication review, one administration official said EPA should set the secondary NAAQS based on a specific analysis of the welfare -- or environmental -- effects of ozone, according to a "Summary of Interagency Working Comments."
According to the document, the "Reviewer recommends that the secondary standard be set independently of the primary standard based on an appropriate analysis of the welfare effects of ozone emissions, regardless of whether that standard ultimately ends up being higher, lower, or the same as the primary standard."
Remand Response
In the final ozone rule released Oct. 1, EPA does not appear to explicitly respond to the interagency reviewer's comment -- though it says it "has addressed the court's remand with this final action."
EPA says the secondary limit is "based on judgments regarding the currently available welfare effects evidence, the appropriate degree of public welfare protection for the revised standard, and currently available air quality information on seasonal cumulative exposures that may be allowed by such a standard."
Following that review, EPA Administrator Gina McCarthy concluded that matching the primary and secondary ozone limits would comply with air law requirements, the agency says.
"Based on air quality analyses which indicate such control of cumulative seasonal exposures will be achieved with a standard set at a level of [70 ppb] (and the same indicator, averaging time, and form as the current standard), the Administrator concludes that a standard revised in this way will provide the requisite protection," EPA says. The indicator, averaging time and form are technical terms for implementing the NAAQS.
Environmentalists have long urged the agency to set a distinct secondary NAAQS with a different form and averaging time that is aimed specifically at protecting the environment -- principally plants -- from the harmful effects of ground-level ozone. The current form of the ozone NAAQS is geared toward protecting humans from ozone exposures, not trees that are cumulatively exposed to ozone over a growing season, critics argue.
This view has garnered some support among EPA staff, and the agency developed a distinct metric for the secondary ozone standard called W126 that measures ozone exposure in parts per million- hours (ppm-hrs).
EPA's Clean Air Scientific Advisory Committee (CASAC) has also recommended that the agency set a distinct secondary standard, using a different form than the primary NAAQS.
However, in its latest final ozone NAAQS, EPA again eschews a distinct form in favor of the setting the primary and secondary standard at the same level, using the same metric.
"In making this decision on the secondary standard, the Administrator focuses on [ozone] effects on tree seedling growth as a proxy for the full array of vegetation-related effects of [ozone], ranging from effects on sensitive species to broader ecosystem-level effects. Using this proxy in judging effects to public welfare, the Administrator has concluded that the requisite protection will be provided by a standard that generally limits cumulative seasonal exposures to 17 ppm hours (ppm-hrs) or lower, in terms of a 3-year W126 index," EPA says.
The rule continues the agency's practice of setting the ozone limits at the same level and using the same "form" and averaging time. Since the 1997 ozone standard, which is expressed as 84 ppb, EPA has set the standard using the annual fourth-highest daily maximum 8-hour concentration, averaged over 3 years.
Secondary Standard
However, EPA does not set the secondary standard using the W126 form, which means states can avoid crafting distinct state implementation plans (SIPs) for secondary NAAQS attainment that demonstrate how they will show compliance with the novel metric. Instead they can use one SIP for both limits.
EPA's final rule is consistent with the proposed version of the NAAQS, in which the agency analyzed the necessary ozone cuts in terms of the W126 index, but proposed to set the standard using the same form as the primary limit.
In a fact sheet on the proposed version of the rule issued in December, EPA said, "To achieve a level of protection equivalent to 13 to 17 ppm- hours based on the W126 metric, EPA is proposing to set an 8-hour secondary standard at a level within the range of 65 to 70 ppb. EPA analyzed data from air quality monitors and found that setting a standard in a W126 form would not provide additional protection beyond an 8-hour standard."
In March 17 comments on EPA's proposed version of the new NAAQS, a coalition of nine environmental groups said that, "In selecting a form to protect vegetation EPA must use the best biologically relevant metric. The W126 metric has been recommended to EPA (and found by the EPA Administrator herself) as being the most biologically relevant form in this current review, as well as in the 2006 review and the 2010 reconsideration." The groups included the American Lung Association, Natural Resources Defense Council and Sierra Club.
The groups said, "Our organizations believe that EPA must set a W126 standard of 7 ppm-hrs to be protective of tree growth, foliar health, and to mitigate anthropogenic climate change. This form and level reflects the best protection promoted by the CASAC and by the National Park Service.
"We are dismayed that EPA has left the secondary standard in the shadows in its 2014 proposal. Of particular concern is EPA's unwillingness to propose a W126 standard despite the Agency's clear recognition that this is the correct metric to characterize impacts to vegetation. Such an approach is unlawful and arbitrary," they added.
In its new ozone NAAQS rule, EPA set its final standard at the top of its proposed range -- again leaving open the possibility that other, stricter NAAQS limits set using the W126 metric would be more protective of public welfare. At press time, environmentalists had not publicly confirmed whether or not they will sue EPA over either the secondary standard or their claims that the primary limit is also too weak.
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EPA's Final Climate Rule Made Compliance Easier for Some State Regulators, Harder for Others
Oct 21, 2015 | E&E - Climatewire
By Elizabeth Harball
Whether they plan on embracing or fighting the rule, Virginia, Kansas, Pennsylvania and Missouri are all planning on writing state plans to submit to U.S. EPA proposing how they aim to comply with the Obama administration's recently released Clean Power Plan that seeks to curb greenhouse gas emissions from power plants.
But at a conference on the Section 111(d) rule hosted by Infocast in Washington, D.C., yesterday, officials charged with crafting those plans said they are already feeling the impacts of political shifts in their states as a result of dramatic changes in EPA's requirements in the final rule compared to the proposed rule. This means some states, like Virginia, are supporting the rule more eagerly, while others, like Missouri and Kansas, will be challenging EPA more aggressively.
For example, Missouri Public Service Commissioner Scott Rupp said his state still plans on writing an initial plan and, like many other states, will likely ask for an extension to submit a final plan to EPA in 2018.
But thanks to the final rule's more stringent requirements for his state -- Missouri must now make a 36.7 percent emissions rate reduction, as opposed to a 21.3 percent reduction in the proposed rule -- utilities are less eager to talk to state leaders about the advantages of writing a state plan.
"When the final plan comes out, complete change -- much more difficult for Missouri," said Rupp, who stipulated that the opinions he expressed are his own and don't represent the Missouri PSC. "Now the people that would have been pushing for, 'Hey, we need to get this done' ... now you have our utilities going, 'Yeah, we're suing.'"
He added, "A month ago I would have said we're working on a mass-based approach and everybody is working together, but at this point I think ... you're going to see probably some stronger positioning, much more in line with the state of Texas."
Rupp said this is even more certain given that this month, Missouri Attorney General Chris Koster, who is also a Democratic candidate for governor in the 2016 election, said his state is joining a lawsuit challenging EPA on the rule (EnergyWire, Oct 13).
"Regardless of who wins [the 2016 election,] you are going to have a veto-proof Republican Legislature and a person in the governor's office who is against the Clean Power Plan," Rupp said.
Timothy Keck, deputy chief counsel for Kansas Department of Health and Environment, said his state is also "adversely affected" by more stringent goals under the final Clean Power Plan. Kansas' requirements jumped from a 22.7 percent emissions rate reduction to 43.5 percent, "which is going to be a hard pull for us to do," Keck said.
"We are going to be one of the states that is at the courthouse door, ready to file one of the lawsuits that will be filed shortly after publication," Keck said.
Recent events have served to further steel Kansas' state lawmakers against the Clean Power Plan. The closure of two coal-fired units resulted in swift backlash from Republican leadership in the state Legislature (ClimateWire, Oct. 19).
But while Kansas is hoping for the court system to issue a stay of the rule, Keck said the outcome of that request is uncertain so it's likely the state will be making an initial submission of its plan next September and "will take as much time as we are allowed to take from EPA to submit our final plan."Va. warms up to climate rule
For Virginia, changes to the final Clean Power Plan worked in the opposite direction, said Michael Dowd, director of the air division with the state's Department of Environmental Quality.
Virginia saw its final goals ease slightly, from a 37.8 percent emissions rate reduction requirement in the proposed rule to a 31.6 percent emissions rate reduction in the final rule.
Gov. Terry McAuliffe (D) "went from a skeptic of the proposal to a supporter of the final rule," Dowd said, citing a recent op-ed by the governor cheering the Clean Power Plan for creating economic growth opportunities for his state.
Although Dowd allowed the EPA rule will mean Virginia's coal communities "will be hit very hard," he went on to call the final rule "a lot fairer" and "more legally sustainable" than the proposed rule. Virginia will likely be submitting its state plan in 2017, before McAuliffe's term expires, Dowd said.
It remains unclear whether Virginia will choose a rate-based plan, meaning its power fleet must meet a specific average amount of carbon per unit of power produced, or a mass-based plan, meaning the state would cap the total tons of carbon its power sector can emit each year. It will depend heavily on what other states choose to write in their plans, said Dowd, and Virginia's utilities have not yet weighed in on the decision.
But Dowd said at this early date, "it would appear, from my perspective, that a mass-based approach has a lot to recommend it" because it seems easier to implement, adding that the state is considering joining a "trading-ready" program which would allow it to exchange allowances with other states.A 'prisoner's dilemma' for Missouri?
Like Virginia, Pennsylvania also saw its goals ease in EPA's final Clean Power Plan, and the state announced it will submit a final plan to the agency by next September (ClimateWire, Sept. 10). But the state also remains unclear on what will be included in the plan.
"What that plan looks like I could not tell you -- mass based versus rate based, we don't know," said Robert Powelson, commissioner with the Pennsylvania Public Utility Commission.
Powelson added it's unlikely that the state will join the Regional Greenhouse Gas Initiative, an already-established multi-state carbon market in the U.S. Northeast. Instead, he hinted that Pennsylvania is considering trading with states outside of RGGI.
"There seems to be bipartisan support to say we might look for a new dance partner or two," said Powelson.
Whether supporting or decrying EPA's final rule, all the officals that spoke at the panel said figuring out what other states are planning has made solidifying their own plans a unique challenge, especially because EPA has disallowed the practice of trading emissions credits or allowances between states that choose a mass-based approach and states that choose a rate-based approach.
"If West Virginia, for example, goes mass-based, and we go rate-based, that may not be good," Dowd said. "We really have to consider what our other states are doing, but we're not going to know until they submit their plans, so keeping in touch with each other is really, really important."
Missouri's Rupp said that under the Clean Power Plan, states are now dealing with something akin to the "prisoner's dilemma," a classic game theory scenario in which two criminals in solitary confinement must choose whether or not to betray the other without being given the opportunity to communicate. Depending on the other's decision, a prisoner's choice to betray his colleague could result in getting set free or it could result in him spending an even longer period in prison.
"We feel like we're a prisoner, and should we take a plea? Should we not? What are other states going to do? I think that's kind of the mindset that is there," Rupp said.
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'Assume the Rule Will Survive,' Former EPA Chief Tells States
Oct 21, 2015 | E&E - Greenwire
By Amanda Reilly
Former U.S. EPA Administrator William Reilly said today the Clean Power Plan would survive legal challenges, urging regulators to start writing state plans.
Reilly -- who was President George H.W. Bush's EPA chief -- criticized Republican elected officials who have publicly opposed EPA's bid to reduce the power sector's carbon footprint and said it would be a "bad idea" to not write state implementation plans, or SIPs, to comply with the program.
"Move ahead with planning and assume the rule will survive," he told an Environmental Council of the States meeting in Washington, D.C.
Finalized in early August, EPA's Clean Power Plan aims to reduce carbon dioxide emissions from existing power plants. While Reilly said he was "under no illusion that meeting the objectives of the Clean Power Plan will be easy or straightforward," he said he believed EPA had put forth a flexible final program that would allow for collaborations between states and faster adoption of renewable forms of energy.
In his speech today, Reilly criticized congressional Republicans broadly for not believing that climate change was a problem.
"Many of the governors take a similarly dim view of the science of climate change and also would repudiate the rule," he said. "Several governors and legislatures have said they will not allow their regulators to submit state implementation plans. That would be a bad idea."
Reilly cast the decision of writing a state implementation plan as a choice between following the law or politics. He warned that in states that don't submit plans, Congress had sent an "unmistakable message" through the cooperative-federalism framework of the Clean Air Act that EPA would step in to protect public health with a federal implementation plan.
"I suspect that in the end, none of the governors and attorneys general ... want to see the agency write their implementation plan," he said. "They may be partisan, but they're not stupid."
Fifteen states filed a lawsuit to block the draft of the rule, and when the final version was unveiled, they petitioned for an emergency stay. When the rule is published in the Federal Register, their challenges will no longer be premature, and opponents are likely to file petitions for review and ask the court to stay the rule.
While he said the Clean Air Act was far from an ideal tool to address climate change, Reilly said that EPA was working within the authority given to it by Congress to reduce carbon dioxide emissions.
Reilly said that opponents who are pushing for a stay will be hard-pressed to prove to a court that the rule will cause immediate damage, since any effects are likely to be far in the future. He said that he expected the rule would hold up against the various legal challenges.
"My own expectation is even if elements of the rule are disapproved," he said, "most of what it contemplates will survive."
In addition to his work at EPA, Reilly has served as president of the World Wildlife Fund and currently sits on the board of Texas-based Energy Future Holdings Corp.
Paul Bailey, senior vice president of federal affairs and policy for the American Coalition for Clean Coal Electricity, told regulators at the ECOS meeting to not rush into making plans, arguing instead that the rule had a "very good chance" of getting struck down.
"How far do you go to make irrevocable commitments considering this program could be overturned in court?" Bailey said.
Reilly praised electric utilities for steps they've already taken to reduce carbon dioxide emissions but said the power sector, as a major generator of CO2, must move further and faster to avert "potentially catastrophic climate events," he said.
Quoting Pope Francis' encyclical calling for moral action to address climate change, Reilly said he believes state air regulators are the "unsung heroes on whom we all depend" and that the politics would catch up to actions they take to address climate change.
"The culture is moving ahead of the politics on climate, and where culture leads, the politics eventually and inevitably follows," Reilly said. "The clean power rule is on the right side of history."
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Countries Are Set to Dramatically Cut Their Carbon Emissions. And It Still Isn’t Enough.
Oct 21, 2015 | The Washington Post
By Chris Mooney
In a new analysis released as the Paris climate change summit nears, the International Energy Agency says countries’ collective pledges to reduce emissions would lead to a dramatic disconnect between using energy and emitting greenhouse gases.
Specifically, the pledges by over 150 nations — responsible for about 90 percent of the globe’s emissions — would reduce the rate of emissions growth between now and 2030 to about one third of what it has been from 2000 to the present, says the agency.
In a sense, this is great news — hence the positive take by IEA chief Fatih Birol:
But if you look more closely, the result is more concerning. “The annual growth in global energy-related emissions slows to a relative crawl by 2030 (around 0.5% per year),” the report notes, but it is still growth, not yet a cessation or a decline.
Indeed, energy related emissions keep rising in the IEA’s projections, and are equivalent to 42 gigatons of carbon dioxide annually in 2030 (they were 32.3 last year). And thus the IEA calculates that this level of emissions is “consistent” with a global temperature rise of 2.7 degrees Celsius by the year 2100.
That is far beyond the 2 degree Celsius rise above pre-industrial levels that some contend would represent a climate safe zone. And even this idea — a key premise of international climate negotiations — is increasingly in question.
For instance, a recent study in Nature found that “prolonged ocean warming of 0.5 C above present, together with atmospheric warming of 2 C, ultimately leads to the loss of 80% to 85% of all floating ice in Antarctica.” And once the floating ice shelves are reduced and lose their critical buttressing function, continental ice will flow much more rapidly into the sea, leading to major sea level rise. This will play out over centuries, but the commitment to it happening will occur in this one, the research found.
Another recent analysis, meanwhile, found that every 1 degree Celsius of temperature rise translates into an eventual 2.3 meter rise of the oceans.
In fairness, it is not like Paris is the last moment ever when the world can decide to cut its emissions. One key implication of the IEA’s analysis is that climate ambition will have to be “raised progressively” following Paris to reduce emissions further.
The countries’ commitments “must therefore be viewed as an important base upon which to build ambition,” says IEA.
But the problem is that every year’s emissions add more warming commitment, and the atmosphere is a lot more predictable in this sense than politics or economies. Thus, as Paris nears, the global race is now officially on — to cut, and cut, and cut emissions, and just maybe catch up with the speed of warming.
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Clock is Ticking on Bid to Block EPA Water Rule
Oct 21, 2015 | The Hill - Pundits Blog
By Daren Bakst
If ever a rule deserved killing, it's the new water rule issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. A classic example of "regulators gone wild," the rule seeks to regulate almost every "body" of water in these United States. For example, man-made ditches and ephemeral streams (typically dry water beds that carry water only after major storms) could be regulated.
Such regulatory overreach would have been anathema to the authors of the Clean Water Act (CWA), which lays out a cooperative relationship between the federal government and states. Yet this overreaching regulation has prompted attorneys general and regulatory agencies from 31 different states to sue the federal government. That's a good indication that the EPA and Corps aren't cooperating.
Under the CWA, property owners are often required to obtain costly and time-consuming permits if engaging in activities that affect waters that the EPA and Corps believe should be covered under the law (i.e., jurisdictional waters). A property owner doesn't have to dump toxic waste to need a permit; under the CWA, someone might need a permit for simply kicking some sand into jurisdictional water.
By expanding what waters are deemed jurisdictional, the EPA and Corps are grabbing more power. This could include forcing property owners to acquire additional permits for ordinary activities from farming to homebuilding. Many property owners will have to decide whether to spend the money to secure the permits or simply forego the activities because of the cost.
Not surprisingly, many members of Congress have expressed serious concern about this rule. The House even passed legislation to kill the rule and create a new process by which a new rule could be developed. That legislation has ground to a halt, however. Still, there's a simple solution to deal with the problem: the Congressional Review Act (CRA).
This law offers an expedited process by which Congress can pass a resolution to disapprove of the water rule and bar the EPA and Corps from issuing a rule that is substantially the same.
Another advantage to this approach: Approval requires only a simple majority in each House, avoiding the threat of a Senate filibuster.
Legislators in the House and Senate have already introduced CRA resolutions. But the CRA carries a tight and rather complicated timeline. To take advantage of the CRA procedures, the Senate would likely have to pass a disapproval resolution by early November; otherwise, this opportunity to get something passed will have been wasted.
Of course, President Obama may veto a CRA resolution, and overriding the veto would be difficult. The same, though, could be said for any legislation that attempts to kill this new water rule. None of that should matter.
By passing the legislation, Congress would make its opposition to the rule very clear. This isn't some wasted intellectual exercise. Congress needs to go on the record about where it stands on this rule.
The rule has engendered an incredible level of opposition. Farmers, ranchers, manufacturers,local governments and most states actively oppose it. The Corps itself had expressed seriousconcerns about its own rule just weeks before it was released. The EPA was so desperate to ramrod it through that it employed controversial activities, such as a video and social mediacampaign, to gin up support for the rule.
Recently, the Sixth Circuit Court of Appeals issued a stay temporarily blocking implementation of the rule across the entire country. It concluded that the parties challenging the rule "have demonstrated a substantial possibility of success on the merits of their claims." The rule might very well get overturned by the courts.
However, lawmakers can't sit idle and hope the judiciary will do their job for them — especially since the Sixth Circuit has not yet determined if it has jurisdiction to review the rule.
Congress needs to take legislative action now. Fortunately, the CRA makes it easy for them to do so. This is a significant accomplishment just waiting to happen. The clock is ticking.
Bakst is a research fellow specializing in agricultural policy in the Heritage Foundation's Roe Institute for Economic Policy Studies.
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Appeals Court to Rule Swiftly on WOTUS Legal Battle Venue
Oct 21, 2015 | E&E - Greenwire
By Annie Snider
A federal appeals court will hold oral arguments in December on whether it will review the legal battle over the Obama administration's controversial water rule or send the challenges to district court.
In a notice to litigants yesterday, the 6th U.S. Circuit Court of Appeals scheduled oral arguments for Dec. 8 in Cincinnati. Each side -- those moving to keep the cases in appeals court and those moving to have them heard in federal district court -- will receive 20 minutes to divvy up among its parties.
The question of which venue the legal battle will take place in has emerged as a key point early in the fight over the Waters of the U.S. rule. Under the Clean Water Act, certain types of challenges can go directly to federal appeals court, bypassing district courts. The question is whether the issues raised in the WOTUS court challenges meet the requirements for doing so.
Dozens of suits have already been lodged in both types of courts, and judges have come to differing conclusions about who has jurisdiction.
The Justice Department wants the cases heard in appeals court, which is designed for review and which would provide a cleaner, more centralized process. But opponents of the rule prefer that the cases be heard in district court, where judges have more on-the-ground perspective and where differing rulings could help make the issue attractive for the Supreme Court to ultimately weigh in.
Last week, the Judicial Panel on Multidistrict Litigation ruled against consolidating the district court cases, meaning that if the cases end up on the district court route, they could be heard in a dozen different courts (Greenwire, Oct. 14).
The 6th Circuit Court of Appeals has indicated that it intends to make its decision on where the cases belong swiftly, although it took the unusual step earlier this month of blocking the rule's implementation in the meantime (Greenwire, Oct. 9).
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