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Chemical Management News

TSCA Reform Legislation Could Smooth Path For New Biotechnologies
Oct 26, 2015 | Inside EPA
By Maria Hegstad

Pending legislation in Congress to reform the 40-year-old Toxic Substances Control Act (TSCA) could make it easier for EPA to assess the potential risks of new technologies, such as synthetic biology, and review requests to undertake field research or commercialize new products, an industry attorney says.
Consideration of Hair Dye Substance for Prop 65 Opposed
Oct 26, 2015 | Chemical Watch

A diaminotoluene isomer widely used in hair dyes should not be considered for listing as a carcinogen under California's Proposition 65, said the Personal Care Products Council (PCPC) (CW 28 August 2015).
US EPA Receives 45 Pre-Manufacturing Notices in August
Oct 26, 2015 | Chemical Watch

The US EPA received 45 pre-manufacturing notices (PMNs) for new substances in August.
Canada Adds 24 Substances to DSL
Oct 26, 2015 | Chemical Watch

The Canadian government has added 24 substances to its Domestic Substances List (DSL).
California Agency to Study Chemical Exposure from Synthetic Turf
Oct 26, 2015 | Chemical Watch

California's Office of Environmental Health Hazard Assessment (Oehha) has initiated a study to evaluate potential health risks posed by exposure to chemicals in synthetic turf and playground mats containing recycled tyre “crumb rubber”.

Chemical Security News

Week Ahead: Cyber Bill Faces Final Vote
Oct 26, 2015 | The Hill - Cybersecurity
By Cory Bennett

Tuesday will be the day of reckoning for the Senate’s most comprehensive cybersecurity bill to-date.

Transportation News

(ACC Mentioned) The Ryan Power Dynamic; Lew Issues another Debt Limit Warning; Highway Trust Fund Running Out, Again
Oct 26, 2015 | The Washington Post
By Kelsey Snell

RYAN’S NEW POWER TEAM SHAPING UP. House Ways and Means Committee Chairman Paul Ryan (R-Wis.) has started to build the team to help him lead should he be elected speaker later this week. Ryan tapped longtime Republican aide David Hoppe to lead his staff. The Post’s Robert Costa has more:
Lobbying Undercuts Deadline for Train Safety
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Bipartisan House Bill Aims to Boost Pipeline Inspections
Oct 26, 2015 | E&E - Greenwire
By Geof Koss

A bloc of House members from both parties is pressing legislation to allow federal regulators to directly hire pipeline inspectors, with an eye toward boosting the ranks of women, minorities and veterans.
Increased Oil Train Traffic Brings More Scrutiny from Minn. Governor
Oct 26, 2015 | E&E - Energywire

St. Paul, Minn., is facing a serious increase in oil train traffic, and Gov. Mark Dayton (D) said Thursday he wants some oversight.
Earthquake-Zone Tunnels May Derail 1st Phase of Bullet Train
Oct 26, 2015 | E&E - Greenwire

The most ambitious tunneling project ever in the United States will almost certainly take longer and be more expensive than expected, according to documents associated with California's $68 billion high-speed rail project and expert interviews.

Energy and Environment News

Opponents Push to Block Rule While Defenders Prep for Battle
Oct 26, 2015 | E&E - Energywire
By Ellen M. Gilmer

Defenders of U.S. EPA's Clean Power Plan are wading through stacks of challenges this week in the wake of a massive new legal assault against the climate rule.
Opponents Lock Arms to Stop Obama's Carbon Rule
Oct 26, 2015 | Roll Call
By Ed Felker

The Federal Register publication on Oct. 23 of the first-ever federal limits on carbon emissions from power plants started a promised battle between the Obama administration and opponents of the rule, both in federal courts and on Capitol Hill.
Republican Senator Kelly Ayotte Backs President Obama’s Climate Change Rule
Oct 26, 2015 | National Journal
By Ben Geman

New Hampshire Senator Kelly Ayotte is at odds with GOP leadership and the vast majority of her Republican colleagues over climate change policy heading into the 2016 elections.
Ayotte Offers 1st GOP Support for Clean Power Plan
Oct 26, 2015 | E&E - Greenwire
By Jean Chemnick

When Senate Majority Leader Mitch McConnell floats his resolutions to kill U.S. EPA's power rules for carbon dioxide this week, he will lack the support of at least one Republican.
Vulnerable GOP Senator Backs Obama’s Climate Rule
Oct 26, 2015 | The Hill - E2 Wire
By Timothy Cama

A Republican senator facing a tough reelection fight is supporting President Obama’s signature climate change rule.
As Legal Onslaught Begins, EPA Tells States How to Buy Time on Climate Rule
Oct 26, 2015 | E&E - Climatewire
By Elizabeth Harball and Rod Kuckro,

As expected, the publication of the final Clean Power Plan in the Federal Register on Friday brought on a swarm of lawsuits from opponents of the U.S. EPA rule.
Court Battles Could Drag into 2018
Oct 26, 2015 | E&E - Greenwire
By Robin Bravender

Those waiting for the outcome of the legal battles over the Obama administration's Clean Power Plan should get comfortable.
Businesses Slam Obama for Pushing Power Rule Ahead of Climate Talks
Oct 26, 2015 | The Hill - E2 Wire
By Devin Henry

Business groups suing the Obama administration over its climate rule for power plants are calling the rule a “political aspiration” designed to “coerce” other countries into instituting climate action plans of their own.
SAB Members See Limitations In EPA Fracking Study Ahead Of Peer Review
Oct 26, 2015 | Inside EPA
By Bridget DiCosmo

Members of an EPA Science Advisory Board (SAB) panel are highlighting limitations in the agency’s landmark draft study of hydraulic fracturing’s potential drinking water impacts, including its lack of “prospective” baseline studies, that might hint at recommendations they could make on how to improve the analysis.
Republicans Attack Climate Rules to Send Message to UN
Oct 26, 2015 | National Journal
By Jason Plautz

Both chambers of Congress this week are set to join the avalanche of attacks on the Obama administration’s rules limiting emissions from the power sector.
Obama’s Carbon Emission Hypocrisy
Oct 26, 2015 | The Hill - Congress Blog
By Former Sen. Jim Talent (R-Mo.)

On November 30, President Obama will join leaders from 196 nations in Paris for the COP 21 United Nations Conference on Climate Change. Ironically, that same day, his Environmental Protection Agency could deliver a crippling blow to the Renewable Fuel Standard (RFS), the only federal law on the books that has actually seen success in reducing greenhouse gas emissions.

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Chemical Management News

TSCA Reform Legislation Could Smooth Path For New Biotechnologies

Oct 26, 2015 | Inside EPA

By Maria Hegstad

Pending legislation in Congress to reform the 40-year-old Toxic Substances Control Act (TSCA) could make it easier for EPA to assess the potential risks of new technologies, such as synthetic biology, and review requests to undertake field research or commercialize new products, an industry attorney says.
While the legislation does not “expressly address any of the issues” with biotechnology, nanotechnology or new technologies specifically, “any legislative recast of TSCA will help with new technologies,” Lynn Bergeson, of the law firm Bergeson & Campbell said during an Oct. 15 event at the Wilson Center on Synthetic Biology (synbio).
“The big picture is if TSCA were to be reformed, there are greater opportunities for EPA to obtain information and make risk findings and determine that . . . existing chemicals are not meeting an established safety standard,” Bergeson said. “Because TSCA reform is mature, we are very hopeful it will emerge soon . . . and in whatever form it will expand the agency’s authority to review, assess and procure information to make safety findings, which I think we can all get behind and support.”
Bergeson, however, indicated that while she hopes to see TSCA reform, she believes that the existing statutory structure can handle new technologies like nanotechnology and biotech, but the regulatory underpinnings need modernization.
Bergeson and her colleagues have outlined five of these “urgently needed” regulatory changes in a new report, “The DNA of the U.S. Regulatory System: Are We Getting It Right for Synthetic Biology?” They released the report at the event.
Among the report’s recommendations are “Developing a long-range, governmentwide strategy to assure that, going forward, the regulation of synthetic biology encourages innovation while timely identifying and addressing risks through a science-based, transparent process that encourages public confidence.”
Additionally, the report recommends more funding for EPA and other federal agencies to train and keep abreast of the growing number of new technology applications they are reviewing, with the addition of new technology stewards in all offices to coordinate between the agencies and offices; creation of centers of technological excellence to keep up with developments; routine briefings for agency staffs from industry and academic innovators and creation of an ongoing education process for federal decision makers and the public about synbio.
Industrial biotechnology, or synbio, “is evolving so rapidly that no widely accepted definitions exist,” according to the Wilson Center Synthetic Biology Project’s website. The site describes synbio as recent advances in science that allow researchers to create new organisms by engineering DNA sequences. These new organisms can do things like “produce biofuels or excrete the precursors of medical drugs. To many people, this is the essence of synthetic biology,” the website says.
A recent committee from the National Academy of Sciences (NAS) heralded biotechnology as a solution to fossil fuels demand, since petrochemicals are the feedstocks for many chemicals. In their stead, NAS argued in a report released last spring, these feedstocks could be replaced or augmented by synbio processes.
Updated Framework
The Wilson Center’s report comes as EPA and the White House are turning their focus onto synbio technologies and reconsidering how to regulate them. EPA recently hosted a public stakeholder meeting to discuss its plans to update a 1997 guidance document designed to assist companies that under TSCA must submit to EPA pre-manufacture notices of their new technologies as though they were introducing new traditional chemicals. The updated guide will have a focus on genetically modified algae, one of the common types of applications the agency sees. In its announcement, EPA indicated that the numbers of synbio applications it is receiving has increased dramatically in the past three years.
The White House Office of Science and Technology Policy (OSTP), meanwhile, has instructed EPA, the Food and Drug Administration (FDA) and the Agriculture Department (USDA) to update their 1986 Coordinated Framework, which the agencies use to guide how they will regulate complicated biotechnology applications, which sometimes can be hard to pigeonhole within an individual agency’s regulatory bailiwick. The framework was last updated in 1992.
In July, OSTP announced that EPA, FDA and USDA would create an interagency working group to update the framework. Earlier this month, OSTP, requested public input, seeking “relevant data and information, including case studies, that can assist in the development of the proposed update to the Coordinated Framework for the Regulation of Biotechnology (CF) to clarify the current roles and responsibilities of the EPA, FDA, and USDA and the development of a long-term strategy consistent with the objectives described in the July 2, 2015 EOP memorandum.”
FDA has announced that it will host the first of three stakeholder workshops on the coordinated framework Oct. 30 in Silver Spring, MD, according to its website.
OSTP explains that the update will “help clarify which biotechnology product areas are within the authority and responsibility of each agency and outline how the agencies work together to regulate products that may fall under the authorities of multiple agencies,” according to a July 2 OSTP blog post.
It also tasks the interagency group with “develop[ing] a long-term strategy, after public input, to ensure that the Federal regulatory system is well-equipped to assess efficiently any risks associated with the future products of biotechnology. And, OSTP says it will “commission an outside, independent analysis of the future landscape of the products of biotechnology,” by NAS.
Like the recent report from the Wilson Center and Bergeson & Campbell, OSTP says “the complexity of the array of regulations and guidance documents developed by the three Federal agencies with jurisdiction over biotechnology products can make it difficult for the public to understand how the safety of biotechnology products is evaluated, and navigating the regulatory process for these products can be unduly challenging, especially for small companies.”
TSCA Improvements
Bergeson, in discussing possible changes to TSCA that could aid regulation of new technologies, pointed to a 2014 report from the J. Craig Venter Institute as one that provides suggestions of improvements that could be made to TSCA to further improve the oversight of biotechnologies.
The report, released in May 2014, concluded that “regulatory agencies have adequate legal authority to address most, but not all, potential environmental, health and safety concerns posed by anticipated near-term microbes, plants, and animals engineered using synthetic biology.” It identifies what it calls two key challenges for the regulatory system, and identifies various ways in which these could be addressed.
For EPA, the Venter report warns that synbio “will lead to an influx of genetically engineered microbes intended for commercial use, which may overwhelm EPA’s Biotechnology Program. While EPA regulators have successfully reviewed such engineered microbes to date, this influx will include a larger number and more diverse set of microbes than the program has seen previously, including many with intended or possible environmental exposure. Moreover, as engineered microbes become increasingly complex, risk assessments will pose a greater challenge. EPA will require additional funding to meet the increased workload and expertise requirements. In addition, the agency may be constrained by the authority given to it under TSCA, which has been criticized as inadequate, both in the context of engineered microbes and more broadly.”
The Venter report proposes two options to address the challenge for EPA, either more funding for its Biotechnology Program and crafting measures to expedite certain reviews or Congress amending TSCA “to strengthen EPA’s ability to regulate engineered microbes. This option . . . could either address engineered microbes specifically or could strengthen TSCA for all chemicals subject to the law.”

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Consideration of Hair Dye Substance for Prop 65 Opposed

Oct 26, 2015 | Chemical Watch

A diaminotoluene isomer widely used in hair dyes should not be considered for listing as a carcinogen under California's Proposition 65, said the Personal Care Products Council (PCPC) (CW 28 August 2015).
According to comments submitted by the trade group to the state's Office of Environmental Health Hazard Assessment (Oehha), “there is no scientific basis for the listing of 2,5-diaminotoluene as a Proposition 65 carcinogen”.
It added that the substance is only being considered due to “confusion” surrounding the identity and listing status of diaminotoluene (mixed), which it says is a commercial mixture of 2,4 and 2,6-diaminotoluene.
2,4-Diaminotoluene has been listed as a carcinogen under Prop 65 since 1988, and the PCPC said it is “widely accepted to be carcinogenic.” However, it said there is “no evidence” that the 2-5 isomer is carcinogenic.
The trade group's comments were part of a consultation to inform the 4 November meeting of Oehha's Carcinogen Identification Committee (CIC). The body will be considering the possible removal of diaminotoluene (mixed) from Prop 65, as well as the potential listing of any of its isomers.

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US EPA Receives 45 Pre-Manufacturing Notices in August

Oct 26, 2015 | Chemical Watch

The US EPA received 45 pre-manufacturing notices (PMNs) for new substances in August.
Included in these were:fluid stabilisers;ingredients for use in industrial, automotive, and multi-purpose exterior coatings;epoxy hardeners; andadditives for use in oil, fluid loss control, and industrial paper applications.
During the same period, the agency received 42 notices of commencement (NOC) to manufacture new chemicals. It also received two applications for test market exemptions (TME) for vegetable fatty acid alkyl esters used as chemical intermediates.

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Canada Adds 24 Substances to DSL

Oct 26, 2015 | Chemical Watch

The Canadian government has added 24 substances to its Domestic Substances List (DSL).
The DSL lists substances considered to be 'existing' in Canada. According to the notice that appeared in the Canada Gazette, adding substances to the DSL “facilitates market access by exempting them from assessment and reporting requirements”.
The listing of three of these substances prompted their removal from the Non-Domestic Substances List (NDSL), which is comprised of substances considered 'new' to Canada. Substances listed on the NDSL are subject to some reporting requirements.

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California Agency to Study Chemical Exposure from Synthetic Turf

Oct 26, 2015 | Chemical Watch

California's Office of Environmental Health Hazard Assessment (Oehha) has initiated a study to evaluate potential health risks posed by exposure to chemicals in synthetic turf and playground mats containing recycled tyre “crumb rubber”.
The study is designed to “fill in data gaps” from studies conducted by the agency in 2007 and 2010. Specifically, it will aim to assess “the risks from chemical exposure resulting from ingesting crumb rubber”, which it says is pertinent to synthetic turf use during athletic activities.
The agency's evaluation will include:identifying and analysing the chemicals released by crumb rubber and artificial grass;monitoring the air above playing surfaces to determine chemicals that can be inhaled;determining exposure to chemicals in crumb rubber from ingestion and dermal contact; andconducting an assessment of the potential health impacts associated with use of synthetic turf and crumb rubber playground surfaces, based on the findings of the study.
California's study comes as localities around the US have moved to ban the installation of fields containing the ground up rubber infill materials, and as US Congressman Frank Pallone (D-New Jersey) has called on the legislature to take up an examination of its safety (CW 20 October 2015).
Oehha has announced public workshops in November and December to inform its three-year study of the materials. The agency also will involve a panel of scientific experts in its assessment, it said.

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Chemical Security News

Week Ahead: Cyber Bill Faces Final Vote

Oct 26, 2015 | The Hill - Cybersecurity

By Cory Bennett

Tuesday will be the day of reckoning for the Senate’s most comprehensive cybersecurity bill to-date.
After months of maneuvering, backers of the Cybersecurity Information Sharing Act (CISA) have finally been able to schedule a final vote on the bill, which would encourage companies to share data on hacking threats with the government.
The measure has spurred contentious debate on Capitol Hill, with privacy-minded senators and a growing number of tech companies arguing the bill will merely shuttle more of Americans’ personal data to the government without actually bolstering cyber defenses.
CISA's proponents — including a large bipartisan coalition of lawmakers, many industry groups and the White House — counter that the bill is a necessary first step to help the country better understand and block overseas hackers.
Both sides will make their last stands during a packed Tuesday on the Senate floor. Eight amendments are scheduled for votes throughout the day, before Senate leaders are expected to move to end debate on CISA and take a final vote.
A slew of privacy focused amendments from leading CISA critics Sens. Al Franken (D-Minn.), Dean Heller (R-Nev.), Patrick Leahy (D-Vt.) and Ron Wyden (D-Ore.) will all get an up-or-down vote.
Together, the edits would heighten the bar for scrubbing personal details from the data being handed to the government, limit the types of information the government can receive and eradicate what critics say are anti-transparency clauses in the bill.
But none of amendments are expected to pass, according to many lobbyists. Wyden told reporters he is holding out hope and believes he can win over more votes in the coming days.
“When you have a reactive Congress — we’ve all seen these cyberattacks — and somebody says here’s a cybersecurity bill, you always have a big educational challenge,” he said.
Privacy advocates have also turned their attention toward a more achievable goal: Killing an amendment from Sen. Tom Cotton (R-Ark.) that would facilitate a direct data transfer between businesses and the FBI and Secret Service. Currently, the bill encourages companies to go through the Department of Homeland Security (DHS), with some limited exceptions.
Industry proponents say the edit would allow companies to continue communicating with long-standing law enforcement partners critical to fighting cyber crime. But privacy groups say it would merely let companies and the government skirt important DHS privacy protections.
The White House essentially warned lawmakers not to approve Cotton’s offering in its official CISA endorsement, issued late Thursday.
The administration's approval was the icing on the cake for CISA supporters, following a week of legislative momentum on their bill.
On Tuesday, Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.), CISA’s co-sponsors, unveiled a manager’s package that included a slate of amendments intended to help assuage the privacy concerns of on-the-fence senators and the White House.
Two days later, 83 senators voted to end debate on the package and move to a final vote on the amendments. In its endorsement, the White House specifically lauded the Burr-Feinstein edits.
“This work has strengthened the legislation and incorporated important modifications to better protect privacy,” the White House said.
CISA proponents also got a positive sign when lawmakers shot down a contested amendment from Sen. Rand Paul (R-Ky.). His proposal would have stripped legal liabilities provided to companies sharing data under CISA if those firms were caught breaking a user or privacy agreement with its customers in the process. It received 32 votes, short of the majority needed for adoption.
“I was told that it was a bill killer by particularly the health industry, as well as others out there,” Feinstein told reporters after the vote. "We got a good vote."

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Transportation News

(ACC Mentioned) The Ryan Power Dynamic; Lew Issues another Debt Limit Warning; Highway Trust Fund Running Out, Again

Oct 26, 2015 | The Washington Post

By Kelsey Snell

RYAN’S NEW POWER TEAM SHAPING UP. House Ways and Means Committee Chairman Paul Ryan (R-Wis.) has started to build the team to help him lead should he be elected speaker later this week. Ryan tapped longtime Republican aide David Hoppe to lead his staff. The Post’s Robert Costa has more:
“As Ryan moves toward the speakership, the people added, he is eager to sustain the amicable relationships he has built with hard-right factions within the conference, such as the House Freedom Caucus. In Hoppe, a former vice president at the Heritage Foundation and a former aide to House conservatives, he sees a confidant as well as a liaison to leadership-wary backbenchers.
“‘Dave has been a foot soldier in the conservative movement, and he is a good friend,’ Ryan said Sunday in a statement. ‘His decades of experience fighting for the cause and his passionate commitment to conservative principles are just what I’m looking for to create a new kind of speakership.'”
For more details of Ryan’s K-street relationships Power Post’s Catherine Hohas a rundown of his network in Washington.
LEW PENS NEW OP-ED ON DEBT LIMIT. Treasury Secretary Jacob Lew called on Congress again on Monday to quickly pass a debt limit increase in order to avoid default. Lew has been meeting with lawmakers, writing letters to leaders and making public pleas in recent weeks in an attempt to convince Congress to act on the debt limit, including a Monday op-ed in USA Today.
“Unless Congress acts, after Nov. 3 we will be running the government on only the cash currently available, a profoundly irresponsible course of action. By that date, we estimate that we will have less than $30 billion cash available to fund a nearly $4 trillion enterprise — clearly not enough when our net expenditures can reach as much as $60 billion on some days. No sensible business would run itself this way, and the federal government should be no different.
For 226 years, we have been a nation that consistently pays our bills. Our creditworthiness is a critical part of our strength as a nation, and protecting that strength is a solemn responsibility. Congress should not threaten to squander that strength. There is no way of knowing the full extent of the damage defaulting on our obligations would cause for the U.S. and global economy, and it should be inconceivable to find out.”
HIGHWAY TRUST FUND RUNNING OUT AGAIN. Much of the fiscal focus in recent weeks has been the looming debt limit, but Congress must also act by Oct. 29 or the Highway Trust Fund will run dry. The Wall Street Journal editorial board wrote Sunday pushing Congress to act before the deadline.
“A one-month interruption would cost $30 billion and nearly 700,000 jobs, according to a report from the American Chemistry Council. Add to that 28,000 fewer homes built and 175,000 fewer cars sold, as the effects ripple across the supply chain. You’d need 600,000 trucks to haul the almost two billion tons in freight that travels by rail.
An extension should be an easy bipartisan fix, if not for Senator Barbara Boxer (D., Calif.). The Highway Trust Fund runs out of gas this week, so Congress must pass a temporary measure to buy more time. Legislators could tuck a PTC extension into the stopgap, but Conductor Boxer is derailing that idea so she can use it as leverage in negotiating a long-term highway agreement. Remember this the next time she is on the Senate floor railing about ‘public safety.'”

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Lobbying Undercuts Deadline for Train Safety

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Bipartisan House Bill Aims to Boost Pipeline Inspections

Oct 26, 2015 | E&E - Greenwire

By Geof Koss

A bloc of House members from both parties is pressing legislation to allow federal regulators to directly hire pipeline inspectors, with an eye toward boosting the ranks of women, minorities and veterans.
The bill (H.R. 3823), introduced last week, would allow the Pipeline and Hazardous Materials Safety Administration to hire inspectors "with an emphasis on creating opportunities for women, veterans, and minorities," according to a joint statement from sponsors Gene Green (D-Texas), Pete Olson (R-Texas), Janice Hahn (D-Calif.) and Brian Babin (R-Texas).
The bill would move hiring authority from the Office of Personnel Management to PHMSA, which the sponsors say "would streamline and expedite the hiring process for pipeline inspectors." However, that power would sunset at the end of 2017.
A spokeswoman for Green said the limitation on direct hiring authority is intended to allow PHMSA to fill 109 new positions within its pipeline safety program that were created by the fiscal 2015 omnibus spending law. Of that total, 80 percent of the jobs are required to boost enforcement and inspection.
The bill additionally would require PHMSA within 180 days of becoming law to submit a report to Congress on efforts to hire women, minorities and veterans as inspectors.
The legislation follows a handful of high-profile pipeline accidents, including a May incident in which more than 100,000 gallons of crude oil was released into the Pacific Ocean near Santa Barbara, Calif. PHMSA last month criticized the Texas firm that operated the pipeline, Plains All American Pipeline, for poor safety practices (Greenwire, Sept. 14).
It also comes as Democrats on the Energy and Commerce Committee have pressed for the inclusion of provisions to help women, veterans and minorities in a series of energy bills. Rep. Bobby Rush (D-Ill.), the ranking member on the Energy and Power Subcommittee, last month called for such provisions as a condition for supporting the bill to lift the ban on crude oil exports, which he later opposed on the floor (Greenwire, Sept. 17).
Olson is vice chairman of the Energy and Power Subcommittee, but in addition to Energy and Commerce, the bill has also been referred to the Transportation and Oversight and Government Reform committees.

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Increased Oil Train Traffic Brings More Scrutiny from Minn. Governor

Oct 26, 2015 | E&E - Energywire

St. Paul, Minn., is facing a serious increase in oil train traffic, and Gov. Mark Dayton (D) said Thursday he wants some oversight.
BNSF Railway Co. recently started diverting between 11 and 23 crude trains a week through the Twin Cities because of construction, Dayton said. He said the route puts 99,000 more Minnesotans within a half-mile of the trains on a route that the Department of Transportation didn't properly inspect for crude oil transportation.
"The crossings were not a high priority [for inspection] because we didn't know that this volume of oil cars were being moved here," Dayton said.
Dayton said he spoke personally with BNSF President and CEO Carl Ice, who told him the train company would run its own inspections soon. However, Dayton wasn't assuaged, moving up state track inspections from mid-November to within the next few weeks.
Dayton said it's within BNSF's rights to move traffic but he was unhappy it didn't say anything and doesn't want it to happen again without anyone's knowledge.
"I gave him my home phone number," Dayton said. "I told him that if there are any changes in the routing in Minnesota, I expect him to call me directly himself" (Robb Jeffries, Forum of Fargo-Moorhead, Oct. 23).

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Earthquake-Zone Tunnels May Derail 1st Phase of Bullet Train

Oct 26, 2015 | E&E - Greenwire

The most ambitious tunneling project ever in the United States will almost certainly take longer and be more expensive than expected, according to documents associated with California's $68 billion high-speed rail project and expert interviews.
The California High-Speed Rail Authority says it will construct 36 miles of tunnels in an earthquake-prone area by 2022 in its bid to connect Los Angeles and San Francisco, in addition to dozens of bridges and six stations along 300 miles of track.
"It doesn't strike me as realistic," said James Monsees, a top tunneling expert who authored the federal manual on highway tunneling. "Faults are notorious for causing trouble."
Construction is already 2.5 years behind schedule and in the midst of multiple lawsuits.
Without rights of way or even an exact route, the first phase between Burbank and Merced cost 31 percent more than thought, and the overall project cost rose at least 5 percent, according to a confidential 2013 report from Parsons Brinckerhoff, the state's main management contractor.
According to the report obtained by the Los Angeles Times, state officials used a different, lower-cost estimate in their 2014 business plan four months later.
An authority spokeswoman declined to discuss the difference, which comes as the project cost is now double the original bond estimate of $33 billion made when voters approved the project in 2008.
Authority Chief Executive Jeff Morales said he was not aware of the Parsons Brinckerhoff projection but believes costs can be reduced and delays can be made up.
"You can never make up an early cost increase," said Robert Bea, a member of the National Academy of Engineering and a pioneer in civil engineering risk analysis. "It just gets worse. I have never seen it go the other way in 60 years" (Ralph Vartabedian, Los Angeles Times, Oct. 24).

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Energy and Environment News

Opponents Push to Block Rule While Defenders Prep for Battle

Oct 26, 2015 | E&E - Energywire

By Ellen M. Gilmer

Defenders of U.S. EPA's Clean Power Plan are wading through stacks of challenges this week in the wake of a massive new legal assault against the climate rule.
The lawsuits came pouring in Friday morning after the much-contested plan was published in the Federal Register, more than two months after EPA officials unveiled the final version in early August. After multiple previous attempts to block the rule were thrown out as premature, the Federal Register publication means the Clean Power Plan is now officially ripe for review.
West Virginia led the charge last week, banding with 23 other states for a federal lawsuit that accuses EPA of creating an unprecedented regulatory scheme without legal backing.
"EPA claims to have sweeping power to enact such regulations based on a rarely-used provision of the Clean Air Act but such legal authority simply does not exist," West Virginia Attorney General Patrick Morrisey (R) said in a statement Friday.
The coalition of states also has asked the court to block the rule's implementation while considering its legality. Two other states, Oklahoma and North Dakota, have filed separate challenges.
Affected industry groups, meanwhile, brought challenges on many fronts. Murray Energy Corp. and coal industry groups, which led previous efforts against the plan, filed suit Friday and also requested a stay of the rule. A coalition of 37 electric cooperatives filed their own suit, and the U.S. Chamber of Commerce, the National Association of Manufacturers and 13 other business groups filed one more.
"This plan restricts resources and reduces reliability, while setting a dangerous precedent for future regulation of other sectors," NAM general counsel Linda Kelly said in a statement. "Manufacturers can't sit by while this Administration makes it increasingly difficult to make things and create jobs in the United States, especially at a time when the regulatory weight borne by manufacturers is heavier than ever."
And that's just to start. Other critics of the rule, including the American Public Power Association and the International Brotherhood of Boilermakers, have also filed suit, and more are expected to follow -- making it one of the biggest legal attacks EPA has ever faced.
Prospective litigants have until Dec. 22 to make their move in the U.S. Court of Appeals for the District of Columbia Circuit, which is fielding all of the challenges. The various lawsuits will likely be consolidated.Previewing arguments
EPA allies say they don't expect any novel arguments to arise as the litigation moves forward.
"The arguments against the Clean Power Plan are going to be the ones we've already seen," said Richard Revesz of New York University School of Law's Institute for Policy Integrity.
So far, that's been the case. The legal theories will be spelled out in further detail in court briefs, but several of the litigants gave a preview in their stay requests. The filings focus on earlier arguments that EPA cannot impose new rules on already-regulated sources, that the agency lacks authority to regulate "beyond the fence line" of power plants and that the Clean Power Plan commandeers state energy programs.
In one request filed Friday, a large group of electric utilities, co-ops and industry associations led with the second argument, that EPA's rule violates limitations in the Clean Air Act by regulating beyond the actual power plant.
"The Rule's restructuring of the electric sector is not only wholly untethered from the CAA, but is an assertion of authority over energy policy that is greater than what Congress has given to any federal agency, including the Federal Energy Regulatory Commission," the request said, adding that FERC and the states have been sidelined while EPA acts as an "energy czar."
West Virginia and the rest of the state coalition made similar arguments, saying EPA's approach "runs roughshod over States' sovereign rights" in an area where states have more expertise.Mounting a defense
EPA and environmental attorneys picked apart arguments against the rule last week, defending the plan as a necessary step in achieving greenhouse gas emissions reductions.
"We are confident we will again prevail against these challenges and will be able to work with states to successfully implement these first-ever national standards to limit carbon pollution, the largest source of carbon emissions in the United States," EPA Administrator Gina McCarthy said in a statement.
Responding to the "fence line" argument, environmental lawyers say EPA is on firm legal ground because the Clean Air Act requires the agency to consider the "best system of emissions reduction." EPA has found that system to be a full-grid approach, they say.
As for federalism complaints, Earthjustice attorney Howard Fox said in a Thursday call that the Clean Power Plan includes ample flexibility for states to design their own approaches and includes the option for a federal plan for states that opt not to craft their own.
"The Clean Power Plan follows the tradition of federal-state partnerships that courts have upheld time and again against constitutional challenge," he said. "Constitutional arguments against the plan are last-ditch attempts to block the transition to clean energy that is already underway."
NYU's Revesz added that states and industry will have a tough time persuading the court that the rule needs to be stayed, given the long compliance schedule and the option for states to request an extension for submitting a final plan.
The Natural Resources Defense Council, the Environmental Defense Fund, Earthjustice and the Sierra Club plan to intervene in the litigation on EPA's side. Attorneys general from 15 states, New York City and Washington, D.C., have vowed to get involved, and Boulder, Colo., is also expected to join.

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Opponents Lock Arms to Stop Obama's Carbon Rule

Oct 26, 2015 | Roll Call

By Ed Felker

The Federal Register publication on Oct. 23 of the first-ever federal limits on carbon emissions from power plants started a promised battle between the Obama administration and opponents of the rule, both in federal courts and on Capitol Hill.
A top Environmental Protection Agency official, Janet McCabe, in a call with reporters on Oct. 22 resisted any notion that the landmark rule is vulnerable to efforts by opponents to kill it, a stance backed by environmental advocates.
EPA Administrator Gina McCarthy, in a blog post at the end of last week, added that the rule is “grounded firmly in science and the law.”
Yet the rush to stop the rule, known as the Clean Power Plan, was immediate.
Critics made good on their vows to fight back in the halls of Congress and in the U.S. Court of Appeals for the District of Columbia with suits by states and industry that could end up before the Supreme Court.
It’s a fight that will determine whether President Barack Obama’s signature action to address climate change, which takes on the biggest source of U.S. greenhouse gas emissions, will remain on the books after he leaves the White House.
The rule aims by 2030 to drive down power plant carbon emissions 32 percent below 2005 levels. It is a key part of Obama’s pledge to reduce total U.S. emissions 26 percent to 28 percent by 2025, one he hopes will persuade other nations to sign a global, if nonbinding, climate agreement in Paris this December.
The publication of the rule came more than two months after the EPA finalized its text on Aug. 3, a delay it said was not extraordinary, though critics said the rule was held up to ensure any court action against it did not happen before the Paris conference.
McCabe said states have begun engaging with the EPA on the rule as they prepare to write compliance plans, with initial drafts due by next September and final plans due by 2018.
State Resistance
A handful of states have threatened to resist compliance, however, which would lead to the imposition of an EPA plan. Oklahoma Gov. Mary Fallin, a Republican, has issued an executive order prohibiting state agencies from drafting one.
Senate Majority Leader Mitch McConnell, R-Ky., has urged governors to resist submitting compliance plans, based on his argument that the rule will be overturned in federal courts.
McConnell wasn’t looking solely to the courts as the rule became operative on Oct. 23, however. He said he would join with three pro-coal colleagues to introduce two disapproval resolutions under the Congressional Review Act to cancel the key parts of the rule that affect new and existing power plants. The 1996 law allows Congress to block recent agency rules by passing a joint resolution of disapproval, which cannot be filibustered. The procedure has only worked once in the past, and it won’t this time because the president can veto the disapproval resolution.
Joining McConnell are West Virginia Sens. Shelley Moore Capito, a Republican, and Joe Manchin III, a Democrat, as well as Heidi Heitkamp of North Dakota, also a Democrat.
McConnell said he would schedule floor votes for the resolutions.

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Republican Senator Kelly Ayotte Backs President Obama’s Climate Change Rule

Oct 26, 2015 | National Journal

By Ben Geman

New Hampshire Senator Kelly Ayotte is at odds with GOP leadership and the vast majority of her Republican colleagues over climate change policy heading into the 2016 elections.
Ayotte, who is girding for a difficult reelection fight, on Sunday became the first GOP senator to support President Obama’s sweeping regulation that mandates carbon emissions cuts from the nation’s power plants.
Her announcement arrives as Majority Leader Mitch McConnell and many other Republicans are ramping up their legislative and messaging battle against the EPA rules, which seek to cut nationwide pollution from power plants by 30 percent, relative to 2005 levels, by 2030.
One reason for Ayotte’s position: Beer brewing. Ayotte cited the support of New Hampshire businesses for the plan, including Smuttynose Brewing Company, but also the apparel company Timberland, and Worthen Industries, which supplies adhesives and coatings to a various industries.
“It’s so important that we protect New Hampshire’s beautiful environment for our economy and for our future. After carefully reviewing this plan and talking with members of our business community, environmental groups, and other stakeholders, I have decided to support the Clean Power Plan to address climate change through clean energy solutions that will protect our environment,” she said.
While Ayotte is the first GOP senator to flatly endorse the plan, Maine’s Susan Collins issued a lengthy statement in August calling the measure “significant” and said it was better than the draft version, but stopped short of outright support.

The EPA rule, a central pillar of Obama’s climate change agenda, lays out state-by-state targets for cutting emissions, and New Hampshire is tasked with a 23.3 percent reduction.
The rule enables states to use a range of options to meet the requirements, such as increased use of renewable energy, improvements in energy efficiency, and emissions trading with other states.
Environmentalists call it an important way to cut emissions from coal-fired power plants, the nation’s largest source of unchecked carbon pollution. But major business groups and Republicans argue that the plan will be economically harmful.
Ayotte, who is in her first term, is facing a challenge from Democratic Gov. Maggie Hassan, and early polling suggests a close race in the offing. New Hampshire will be an important battleground as Democrats seek to regain control of the Senate in next year’s elections.
Ayotte laid out her position in a carefully worded statement which notes that New Hampshire is already “well on its way” to meeting its emissions-cutting target. Ayotte vowed to “carefully monitor” the implementation of the rule to ensure it provides enough flexibility and does not drive up energy costs in the state.
The announcement from Ayotte’s office points out that it’s not the first time she has broken with GOP leadership on environmental issues.
In 2011 and 2012, she was among a half-dozen Republicans to vote against bills that would have blocked EPA rules to cut smog-forming and toxic pollution from power plants.

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Ayotte Offers 1st GOP Support for Clean Power Plan

Oct 26, 2015 | E&E - Greenwire

By Jean Chemnick

When Senate Majority Leader Mitch McConnell floats his resolutions to kill U.S. EPA's power rules for carbon dioxide this week, he will lack the support of at least one Republican.
Sen. Kelly Ayotte (R-N.H.) announced her support over the weekend for the Clean Power Plan, becoming the first Republican senator to endorse President Obama's flagship climate rule.
A statement released by her office said Ayotte, who is locked in a tight race for re-election against the state's Democratic Gov. Maggie Hassan, was motivated "to protect New Hampshire's beautiful environment for our economy and for our future."
Ayotte credited Granite State businesses including Smuttynose Brewing Co. and Timberland LLC with influencing her decision.
And she said during an interview with a local television station last night that her state was "well on its way through positive steps that we've already taken to meeting these goals." She pledged to "monitor" the rule's implementation to ensure it safeguards state interests.
The rule EPA published in the Federal Register on Friday would reduce power-sector emissions nationwide by 32 percent by 2030, but it sets New Hampshire's emissions rate reduction at just over 23 percent. That's half as stringent as the one EPA initially proposed for the state last year.
McConnell plans to introduce two Congressional Review Act resolutions this week aimed at scuttling the Clean Power Plan and new source rules.
Ayotte, an up-and-comer in the Republican Party who has sometimes been mentioned as a vice presidential contender, seems to be a politically significant convert to the climate cause -- though her office points to a growing record of times she has broken with party leadership to take pro-climate-action positions.
But Kevin Book, managing director of ClearView Energy Partners, said in an interview that Ayotte's move is not evidence of a GOP shift on the issue. There are parochial reasons for Ayotte to take this stance to keep her seat in a "purplish" state, he said.
"She's from a state that's pretty close to CPP compliance anyway," Book noted. New Hampshire is heavy on low-carbon electricity sources and is already shifting away from coal. So meeting the rule's mandates is not likely to burden the state's ratepayers as much as may be the case elsewhere, he said.
And in an election cycle where control of the Senate hangs in the balance, it may be "strategically useful for Republicans to let the Ayotte take a greener tint when she's trying to keep the state red," he said.
Still, if other Republicans who are fighting for re-election follow Ayotte's lead, he said, it could become a trend. And as demographics shift long-term, Book said he did think it likely that Republicans would feel the need to carve out a less dismissive position on climate change.
David Jenkins, vice president of Conservatives for Responsible Stewardship, said Ayotte's stance is significant.
"Republicans who are in competitive districts or competitive states are starting to feel the need to be better on this issue," he said.
Some of those Republicans signed on to a resolution last month sponsored by Rep. Chris Gibson (R-N.Y.), which called climate change a problem that deserved to be addressed. Jenkins, who worked on that measure, expects the current list of 11 signatories to expand soon and to include some members who are not traditional moderates.
Rep. Carlos Curbelo (R-Fla.), who is one of the most outspoken of the resolutions' backers, penned an op-ed this weekend in the Miami Herald calling for more bipartisanship.
"To view climate change through partisan lenses only detracts from efforts to discover practical solutions," he said.
"I understand the reluctance that some of my congressional colleagues and fellow Americans have about investing in renewable energy sources to address a problem whose impacts are not immediately noticeable," he continued. "However, accelerating clean energy efforts in the present will minimize the risk of serious climate-change effects and overbearing regulations in the future."
Jenkins said Ayotte was forced to support the Clean Power Plan because Republicans haven't formulated an alternative of their own.
"If there were a Republican alternative being offered up, and the Republican leadership was taking it seriously, then Republicans would have a place to go with this other than supporting a Democrat proposal," he said.
"If this goes on with Republicans just doing nothing but trying to block the Clean Power Plan and they're unsuccessful, the Clean Power Plan is entrenched," he said. "That will be pretty much the way we deal with climate change for the foreseeable future."
Curbelo has said he is working on a Republican bill to reduce emissions, but it seems unlikely it would receive backing from House leaders.
Ayotte's move is not the first time she has charted her own course on climate change. She voted for amendments supporting man-made climate science last January. But Democrats this morning dismissed her endorsement of the Clean Power Plan as "hollow." The state's Democratic Party noted in a statement that Ayotte once voted to prevent EPA from regulating greenhouse gases under the Clean Air Act for any sector.
"While I'm glad to see that Kelly Ayotte is heeding Maggie Hassan's call for New Hampshire's delegation to support the Clean Power Plan, it's impossible to take Ayotte's hollow support seriously considering that she's voted to undermine the very efforts she now claims to support," said New Hampshire Democratic Party Chairman Ray Buckley.
They also noted that she has a 23 percent lifetime score from the League of Conservation Voters.
But LCV's Daniel Weiss said "Sen. Ayotte's welcome support for the Clean Power Plan reflects the thousands of phone calls and letters she received from New Hampshire residents urging her to support it." He said he hoped other Republicans would soon follow suit.

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Vulnerable GOP Senator Backs Obama’s Climate Rule

Oct 26, 2015 | The Hill - E2 Wire

By Timothy Cama

A Republican senator facing a tough reelection fight is supporting President Obama’s signature climate change rule.
Sen. Kelly Ayotte (N.H.) came out in support late Sunday of the Environmental Protection Agency’s (EPA) regulation that seeks a 32-percent cut in the power sector’s carbon dioxide emissions.
Ayotte, who faces a tough reeelection bid in a state that voted for President Obama in the last two presidential cycles, is the first congressional Republican to openly endorse the rule dubbed the Clean Power Plan.
“After carefully reviewing this plan and talking with members of our business community, environmental groups, and other stakeholders, I have decided to support the Clean Power Plan to address climate change through clean energy solutions that will protect our environment,” Ayotte said in a statement.
“New Hampshire is already well on its way to meet the goals of the Clean Power Plan through positive steps it has already taken,” she continued, saying she would closely monitor the regulation’s implementation to ensure that the state has sufficient flexibility in complying.
New Hampshire Gov. Maggie Hassan is seeking the Democratic nomination to face Ayotte, and would be seen as a top-notch challenger. She's already attacked Ayotte on climate, signaling she intends to make it an issue in the race.
Hassan on Friday called for the state’s congressional delegation to support the climate plan. She accused Ayotte of siding “with corporate special interests over New Hampshire’s environment," arguing the senator had fought to protect tax breaks for oil companies and voted to block the EPA from moving forward with regulations to reduce carbon emissions.

Though only elected to the Senate in 2010, Ayotte has already shown a track record of bucking the GOP on climate.
She was only one of five senators to have voted in January to pass a non-binding amendment stating that “climate change is real and human activity significantly contributes to climate change.”
In July, Ayotte was the first recipient of a donation from Jay Faison, a Republican who has pledged to donate money in the 2016 election to encourage the GOP to recognize climate change and endorse conservative solutions to it.
Faison donated $500,000 to a super PAC benefitting Ayotte.
NextGen Climate, the super PAC run by billionaire environmental activist Tom Steyer, welcomed Ayotte’s position, but pushed her to do more.
“Sen. Kelly Ayotte today recognized a simple political fact: New Hampshire voters overwhelmingly support policies like the Clean Power Plan that save lives, lower energy costs and address climate change,” Mike Padmore, the New Hampshire director for the group, said in a statement.
“Now it’s time for Sen. Ayotte to show that she truly supports America’s clean energy future and commit to achieving more than 50 percent clean energy by 2030,” he said, repeating a challenge Steyer has made to all political candidates in the 2016 cycle.

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As Legal Onslaught Begins, EPA Tells States How to Buy Time on Climate Rule

Oct 26, 2015 | E&E - Climatewire

By Elizabeth Harball and Rod Kuckro,

As expected, the publication of the final Clean Power Plan in the Federal Register on Friday brought on a swarm of lawsuits from opponents of the U.S. EPA rule.
On Friday morning, West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton jointly announced a 24-state lawsuit challenging EPA's rule. Later that day, Oklahoma Attorney General Scott Pruitt and North Dakota Attorney General Wayne Stenehjem announced their states are also challenging the rule, meaning that over half of U.S. states are opposing the Clean Power Plan in court.
Morrisey called the Clean Power Plan "one of the single most onerous and illegal regulations coming out of Washington, D.C., that we've seen in a long time."
EPA's Clean Power Plan aims to slash carbon dioxide emissions from the U.S. power sector 32 percent by 2030. The rule's supporters call it an essential step to rein in climate change, while its detractors call it too expensive and an example of federal government overreach.
In addition to the states, a number of industry groups also announced Friday they are challenging the Clean Power Plan in court, including the U.S. Chamber of Commerce, National Rural Electric Cooperative Association and National Association of Manufacturers. The Clean Power Plan also saw opposition in Congress shortly after it was formally published -- on Friday, Senate Majority Leader Mitch McConnell (R-Ky.) said he and Sen. Joe Manchin (D-W.Va.) will file a resolution of disapproval under the Congressional Review Act this week designed to halt implementation of the rule.
EPA, the White House and their supporters on Friday expressed confidence that the Clean Power Plan will carry the day in court.
"The Clean Power Plan is grounded firmly in science and the law," EPA Administrator Gina McCarthy wrote in a blog post Friday.EPA offers guidance on 'simple' process for state extensions
In addition to rebuffing claims that the Clean Power Plan is legally vulnerable, EPA leaders and staff are busying themselves helping states figure out how to implement the regulation.
As part of that effort, the agency released a memorandum last week to regional EPA directors on what states must include in their initial submittal with the agency next September if they want an extension to submit a final state plan in 2018.
Many, if not most, states are expected to file for an extension, acting EPA air chief Janet McCabe said at a conference of air regulators in Washington, D.C., last week. McCabe stressed that this process would not be onerous.
In the memorandum, EPA stressed that for a state to get an extension, the "process is simple and requires only that the state demonstrate it has taken certain preliminary and readily achievable steps towards the development of its plan."
It notes what must be included in the extension request, to be filed on Sept. 6, 2016: a description of the compliance approaches the state is considering, an explanation for why the state needs more time to submit a final plan and a description of how the state has reached out to interested parties for input.
Also, states that would like to participate in the Clean Energy Incentive Program, which gives early credit for the installation of wind energy, solar energy or energy efficiency in low-income communities, need to indicate interest in their initial submittals.
States that receive an extension must provide an update on their progress to EPA on Sept. 6, 2017, the memorandum notes.
EPA, which has repeatedly stressed the flexibility of the final rule, emphasized in the memo that states are in the driver's seat for what they would like to include in their initial submittal.
"The actions enumerated in this memorandum and in the attachment serve to illustrate the wide range of choices states have in meeting the elements on which an extension request would be granted," the memorandum states.
"The opportunity for an extension is intended to support and promote a state's ability to design a plan consistent with and responsive to state-specific circumstances and needs," it adds.

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Court Battles Could Drag into 2018

Oct 26, 2015 | E&E - Greenwire

By Robin Bravender

Those waiting for the outcome of the legal battles over the Obama administration's Clean Power Plan should get comfortable.
The court fights over U.S. EPA's plans to curb power plants' greenhouse gas emissions officially kicked off Friday as opponents rushed to challenge the rule in a federal appeals court. The high-stakes legal brawl promises to include dozens of interested groups including states, industries, labor groups and environmentalists. And it's almost certain to drag on for months or even years as the appeals court -- and possibly the Supreme Court -- decide the rule's fate.
At stake is EPA's rule that aims to slash carbon dioxide emissions from utilities by 32 percent by 2030. As the legal war gets underway, friends and foes of the administration's plans insist they've got the winning argument and will ultimately prevail in court. EPA's allies point to previous victories in court upholding the administration's climate policies, while critics of the rule predict judges will determine it's an example of illegal regulatory overreach.
Both sides are girding for a long fight.
First up, judges will decide whether to freeze the rule, which critics are pressing the court to do.
As lawsuits started to pour into the U.S. Court of Appeals for the District of Columbia Circuit on Friday, states and industries opposed to the rule also requested that the court take immediate action to prevent EPA from implementing the power plant regulation.
A coalition of 24 states led by West Virginia and Texas warned that they "are being immediately and irreparably harmed by EPA's illegal effort to force States to reorder their electrical generation systems." In their motion asking the court to halt the regulation, they added, "This case involves an unprecedented, unlawful attempt by an environmental regulator to reorganize the nation's energy grid" (E&ENews PM, Oct. 23).
Separate stay requests also came in from industry groups. A coalition of more than a dozen industry associations led by the U.S. Chamber of Commerce filed a motion asking the court to block the rule, lawyers representing the coal industry filed another stay request, and anotherrequest was made by utilities led by the Utility Air Regulatory Group and the American Public Power Association.
Texas Attorney General Ken Paxton (R) told reporters last week that state challengers are "pretty confident that we're going to get a stay."
Environmentalists, meanwhile, say there's little chance the court will step in to stall the regulation. Despite challengers' calls for the "extraordinary step of an immediate judicial stay to block the Clean Power Plan," the rule's "foes are unlikely to get a stay in the short run or to overturn the rule in the coming months or years," Natural Resources Defense Council attorney David Doniger told reporters last week.
To get a stay, opponents are required to make several arguments to the court, including showing that they'd be irreparably harmed by the regulation. But Doniger said, under EPA's rule, "States have three years to develop plans, and the first compliance obligations for power companies are seven years away." He added, "the Supreme Court has already found three times in the last eight years that EPA has the authority and responsibility to curb carbon pollution under the Clean Air Act."
It's unclear when the court will weigh in on whether to grant a stay. The judges may wait until the 60-day deadline for lawsuits and another 30-day deadline for filing court motions have passed to allow all interested parties to weigh in. That could mean a decision on a stay could come more than 90 days after the first lawsuits were filed, in the early months of 2016.
Then the judges will delve into the merits of the case, involving a lengthy back and forth of legal filings by all sides involved. The court is expected to ultimately consolidate the challenges to the EPA regulation.
Ultimately, a panel of three randomly picked appeals court judges will hear oral arguments in the case and issue their opinion. Some legal experts predict that decision could come late next year or early in 2017.
"I think the best guess is we get a decision on the stay by the end of the first quarter of next year, and we probably get a decision on the merits by the end of the year," said Jeff Holmstead, an attorney at Bracewell & Giuliani who is representing coal industry clients challenging the rule.
The 2016 presidential election could also shake up the court battle. If a Democrat wins the White House, the administration is expected to stay the course defending the rule, but a Republican administration could withdraw its legal support for the rule.
A Republican administration could also propose to withdraw the rule entirely, said Holmstead, who was EPA's air chief during the George W. Bush administration. "If there's a Republican in the White House, I'm quite confident that one of the first things they will do is rescind the rule." Although the rule would be final, he said, the administration could propose to withdraw the regulation and explain its reasoning. Supporters of the Clean Power Plan, however, argue that such a rulemaking process would be onerous and subject to further legal arguments.
After the appeals court issues a decision -- possibly at the end of 2016 or in early 2017 -- parties to the lawsuit could request that the full court hear the case. The court rarely grants such en banc review of opinions, but this case may be high-profile enough to spur judges to agree to do so.
By 2017 or 2018, experts predict the legal fight over the Clean Power Plan will wind up in the Supreme Court.
"The Supreme Court is more predictable, and so you would expect about a year later you'd get a decision from the Supreme Court," Holmstead said.

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Businesses Slam Obama for Pushing Power Rule Ahead of Climate Talks

Oct 26, 2015 | The Hill - E2 Wire

By Devin Henry

Business groups suing the Obama administration over its climate rule for power plants are calling the rule a “political aspiration” designed to “coerce” other countries into instituting climate action plans of their own.
On a call with reporters Monday, the president of the U.S. Chamber of Commerce’s Institute for 21st Century Energy accused the Obama administration of pushing its Clean Power Plan now as a way to gain leverage at a December climate chance conference in Paris.
“In the administrant’s own words, they want to march into Paris with the strongest hand possible, and implementing a transformation of the entire electric sector certainly gives one the appearance of a strong hand, albeit the fact that this is going to be litigated for a number of years,” the Chamber's Karen Harbert said.
“There is no certainty going into Paris, with the transformation of the electric sector. Far from it.”
The Chamber, along with the National Association of Manufacturers (NAM) and the National Federal of Independent Businesses, were among the dozens of groups and states to sue against the Environmental Protection Agency’s climate rule on Friday, when it was published in the Federal Register.
The rule, which looks to cut carbon emissions from the power sector by 32 percent by 2030, is the key component of Obama’s climate action plan, a set of policies that make up the U.S.’s contribution to a potential United Nations climate deal this year.
Republicans have looked to attack both the U.S.’s role in the Paris talks and the Clean Power Plan, casting doubt on the prospects that either will succeed in diminishing global warming. Business groups did the same on Monday.
“I do believe it’s fair to say that there is a political aspiration here, to show leadership in Paris and to encourage or coerce other countries to follow suit,” Harbert said.
“As they admit, without other countries doing something, we do nothing with this regulation to address the issue of greenhouse gas emissions.”
The Clean Power Plan faces a host of legal and legislative challenges, including Congressional Review Act resolutions from members.
State attorneys general suing over the rule predicted a court order delaying its implementation could come within a month, or right around the Paris talks.
But officials with the business groups said Monday that it could take into next year to get a court to rule on the stay requests. Litigation against the rule, generally, is expected to take years.
“The Clean Air Act wasn’t designed as a tool for climate negotiations,” said Linda Kelly, NAM’s senior vice president. “We have to make sure that the agency is acting within the bounds of its regulatory authority, which it is not here.”

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SAB Members See Limitations In EPA Fracking Study Ahead Of Peer Review

Oct 26, 2015 | Inside EPA

By Bridget DiCosmo

Members of an EPA Science Advisory Board (SAB) panel are highlighting limitations in the agency’s landmark draft study of hydraulic fracturing’s potential drinking water impacts, including its lack of “prospective” baseline studies, that might hint at recommendations they could make on how to improve the analysis.
The draft report released in June is not intended to be a quantitative risk assessment, but instead identifies mechanisms by which fracking could potentially impact drinking water. The study found no “widespread” impacts to drinking water supplies from fracking but identified some potential “vulnerabilities” to water.
The draft conclusions are being cited by industry and environmentalists separately to bolster their competing calls over regulating fracking.
EPA however has cautioned that its draft assessment should not be used to drive policy decisions because it contains a number of data limitations that hindered the ability to make national conclusions about some of the state-specific findings -- potentially undermining its industry claims to cite the study bolsters their calls against further regulation of fracking, or environmentalists’ argument that the study shows the need for controls.
For example, on chemical mixing, EPA found that the frequency of on-site spills from hydraulic fracturing activities could be estimated for two states, Colorado and Pennsylvania, from approximately 0.4 to 12.2 spills per 100 wells, but not nationally due to data availability.
But the SAB panelists, ahead of an Oct. 28-30 scheduled peer review to be held in Washington, D.C., arehighlighting some other concerns about the study’s limits, which could ultimately prompt the panel to provide recommendations for future studies to address the issues.
For example, in individual comments filed ahead of the peer review, Daniel Goode, of U.S. Geological Survey, writes, EPA’s data on the relationship between quantities of water use and fracking is “highly informative,” but limited by the “lack of information on water use and availability at the local or site scale,” which EPA notes in the draft report.
“This limitation could have possibly been addressed by EPA data collection and monitoring at sites of existing [fracking] water use, possibly as part of prospective studies that were in the study plan, but which were not conducted,” according to Goode’s written comments.
EPA planned to include “prospective” studies at drill sites that were just being developed, allowing researchers to track changes in the water quality near the site as drilling progressed and thus accumulate valuable “baseline” data, but those were hindered by setbacks, including difficulties identifying appropriate sites and a failure to reach legal agreements with operators.
“Such studies would allow EPA to monitor water acquisition and the effects of such acquisition to a level of detail not practiced by industry or required by state regulation,” Goode writes, calling the absence of the studies a “major limitation” of the draft report. “These detailed new data would allow EPA to reduce current uncertainties and research gaps about the relation between” fracking and drinking water.
Joseph DeGeorge, of Merck Research Laboratories, raised similar concerns in his comments. “The data from these case studies could have dramatically reduced the uncertainties carried forward in many aspects of the assessment and the absence of these studies is a significant loss for the assessment,” DeGeorge writes.
Study Shortcomings
The draft report examined findings across five phases of the fracking-water lifecycle for potential impacts: water acquisition, chemical mixing, well injections, flowback and produced water, and wastewater management.
Congress in an appropriations law required EPA to conduct the draft analysis. EPA in the study says that it did not find evidence that the mechanisms by which fracking could potentially impact drinking water have “led to widespread, systemic impacts” in the United States. Those mechanisms include water withdrawals in areas of low water availability; spills of fracking fluids and wastewater; fracking directly into underground sources of drinking water; underground migration of liquids and gases; and inadequate wastewater management.
During a Sept. 30 teleconference to review the charge questions ahead of the peer review, the panelists sought to clarify the scope of its review, including the extent to which the panel should consider the lack of quantitative data on the frequency and severity of impacts in the study.
“It’s not clear to me how we assess how clearly” those factors were identified in the draft report given that it lacks specific quantification of the frequency and severity of impacts related to fracking and drinking water resources, panel member Peter Bloomfield, of North Carolina State University, said during the call.
The individual comments reflect some of those concerns. For example, James Saiers, of Yale University, notes in the written comments that the “usefulness and overall impact of the report could be increased through recommendations of steps that could be taken to mitigate the limitations and reduce the uncertainties.” Such recommendations could address monitoring programs, data reporting and accessibility, and areas of high-priority research, Saiers writes.
Cass Miller, of University of North Carolina, writes that while EPA properly articulated the data limitations throughout the draft analysis, “Assessing the potential for environmental contamination of drinking water resources would require much more data than is currently available.”
Miller suggests that EPA quantify, to the extent possible, the fraction of sites using best practices for preventing contamination from chemical mixing, and emphasize “stronger support for the development and use of fracking additives that pose a lower risk to the environment.”

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Republicans Attack Climate Rules to Send Message to UN

Oct 26, 2015 | National Journal

By Jason Plautz

Both chambers of Congress this week are set to join the avalanche of attacks on the Obama administration’s rules limiting emissions from the power sector.
The measures to kill the rules under a fast-track process of the Congress Review Act don’t have much of a future—even if they reach President Obama’s desk, they’ll face a sure veto. A flurry of lawsuits from states and industry groups is a more likely avenue for a serious challenge to the rules, even if the legal process will take years to unwind.
But opponents are eager just to have the debate, since it sows seeds of doubt about the climate plan as the Obama administration works to maintain a strong posture with the international community ahead of United Nations climate talks in Paris at the end of the year.
The power-plant rules—which will require a 30 percent reduction in carbon emissions by 2030—are the largest piece of the administration’s climate-change agenda and form the centerpiece for the emissions-reduction plan that the U.S. is presenting to the rest of the world amid United Nations climate negotiations.
But they’re also the No. 1 target for Congressional Republicans and industry groups, who say the entire climate agenda is a federal overreach that’s going to raise electricity prices and tank the economy.
Senate Majority Leader Mitch McConnell announced plans this week to introduce a CRA resolution with Democrat Joe Manchin to block the administration’s rules limiting carbon emissions from new power plants. Sens. Shelley Moore Capito and Heidi Heitkamp will introduce an accompanying resolution to stop the rules for existing power plants, and leaders say they’ll move quickly to get them to the floor.
Rep. Ed Whitfield will offer a CRA resolution in the House as well.
Whitfield said the introduction of the resolutions would “mark an important milestone in our fight to keep the lights on and protect jobs and affordable energy.” In a statement, McConnell said the CRA would “allow Congress the ability to fight these anticoal regulations,” but added that it’s just “another tool in that battle.”
The members say the measure is a way for Congress to intervene in a rule that will raise energy costs and cost jobs. But it’s a long shot—only one CRA resolution has ever succeeded. President Obama is sure to veto a resolution if it reaches his desk, and Democrats are likely to be able to sustain it.
Senate supporters of the climate rule have also said they’re gearing up for a massive fight on the floor over the climate rules.
But a vote does give opponents an on-the-record statement of disapproval and a signal that at least one branch of the government isn’t on board with the climate agenda.
And that’s exactly what McConnell and other opponents of the Clean Power Plan want to tell the rest of the world. McConnell has been working for months to try to communicate to states and other countries that the Clean Power Plan isn’t on solid ground in a bid to undermine international climate talks.
Last spring, McConnell issued a warning to foreign governments, saying, “Considering that two-thirds of the U.S. federal government hasn’t even signed off on the Clean Power Plan and 13 states have already pledged to fight it, our international partners should proceed with caution before entering into a binding, unattainable deal.” His office has also been reaching out to embassies to inform them about steps that opponents could take to kill the rule.
On Friday, 24 states and several industry groups—including the National Mining Association and the U.S. Chamber of Commerce—filed multiple lawsuits against the EPA over the rule. The Senate and House are also moving their own bills that would force EPA to scrap the plans. The Senate has also been stepping up its work to try to get oversight over any climate deal.
The White House says that the rules are on solid ground. EPA administrator Gina McCarthy said in a statement that the rule has “strong scientific and legal foundations” and that the agency was “confident we will again prevail against these challenges.”
And as for any concerns about the Paris talks?
“It is notable that the principal argument against taking domestic action against climate change is that if we act and the rest of the world doesn’t act then we somehow put our economy at a disadvantage,” said a senior administration official.
“Well, now, we’ve acted, and the opposite is true,” the administration official added, saying that the actions had helped solidify deals with countries such as China and Brazil, and would carry through the U.N. conference.
The administration pledged to the U.N. that it would cut emissions 26 to 28 percent below 2005 levels by 2025, through measures such as the Clean Power Plan, fuel economy standards, and clean-energy incentives. The U.N. talks are dependent on countries each submitting—and following through—on their own emissions plans.
Republicans have long argued that unless large emitters such as China are also cutting back, U.S. action on climate change will be ineffective and put the country at an economic disadvantage. But increasingly, they’ve argued the inverse—that other countries shouldn’t sign onto a pledge that the U.S. can’t follow through on.
Environmental groups, however, say those arguments are defeatist. And more to the point, groups say that the rule has a solid backbone in the Clean Air Act and won’t fall victim to a legal challenge.
“They can throw everything and the kitchen sink at this standard, but the Clean Power Plan’s push to cut dangerous carbon pollution from power plants for the first time ever is based on a law passed by Congress and upheld by the Supreme Court, and it has the overwhelming support of the American people,” said Mary Anne Hitt, director of the Sierra Club’s Beyond Coal campaign.

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Obama’s Carbon Emission Hypocrisy

Oct 26, 2015 | The Hill - Congress Blog

By Former Sen. Jim Talent (R-Mo.)

On November 30, President Obama will join leaders from 196 nations in Paris for the COP 21 United Nations Conference on Climate Change. Ironically, that same day, his Environmental Protection Agency could deliver a crippling blow to the Renewable Fuel Standard (RFS), the only federal law on the books that has actually seen success in reducing greenhouse gas emissions.
Regardless of where one stands on the issue of climate change, it is abundantly clear that the president is focusing on dubious solutions to his stated goal of bringing about a time when “the rise of the oceans began to slow.” The administration is talking out of both sides of its mouth on the necessity of greenhouse gas reduction, showing stunning hypocrisy in turning its back on the RFS while promoting other, more costly and less effective approaches to reduce CO2 emissions.
When I was in the Senate, we passed the RFS with wide bipartisan support in 2005—and it was signed into law by President George W. Bush—providing a clear timetable and set of targets in order to reduce our dependence on foreign oil and harness a fuel sector of homegrown, renewable alternatives. The RFS did this by requiring an increasing percentage of biofuels be blended into the fuel supply year after year through 2022, allowing time for the renewable fuel industry to mature.
By any standard, the RFS has been a success. Billions have been invested into the budding industry, which currently supports 850,000 well-paying jobs around the country. It has lowered gas prices by $1.09 per gallon, saving the average American household $1,200 on their gas bill. And it has helped reduce our foreign oil imports to the lowest level in 20 years.
As for the environmental impact, this year was the RFS’s ten year anniversary. In that time, the RFS has reduced transportation-related carbon emissions by over 589 million metric tons, or the equivalent of removing more than 124 million cars off of the road.
When Barack Obama was running for president in 2008, he spoke to a group of governors at a climate conference in Los Angeles and pledged, “When I am president, any governor who’s willing to promote clean energy will have a partner in the White House. Any company that’s willing to invest in clean energy will have an ally in Washington.” These allies seem to be companies in the business of solar, because, for the last two years, the EPA has been rolling back this successful policy to the detriment of investors who have contributed billions to the renewable fuels industry.
After nearly three years of delays, it took a federal court order to force EPA to finalize this year’s rule. In May, the EPA released its new proposal, substantially lowering the amount of biofuel that’s required to be blended into American gasoline and adding a new loophole in the law that would allow oil companies to control how much renewable fuel is blended from year to year. If this is the plan finalized on November 30, the EPA will be responsible for the carbon equivalent of adding 7.3 million cars to the road in 2015 alone. Not only would this be a giant step backward, it would fly in the face of the law’s intent.
The RFS is sound policy on many levels, from job creation to reduced dependence on foreign oil. It has also been uniquely successful in delivering these benefits while also achieving the stated goal of Obama: cleaner energy production. The policy solutions he is proposing in Paris will be costly and unlikely to deliver the result he seeks. Setting that aside, it would make sense for the president to, at a minimum, advance the policy goals of the RFS and add ethanol production to the agenda in Paris -- at least then he’d be supporting a broadly successful policy, instead of more job killing regulations. The first step for Obama to achieve his goal of cleaner energy production can happen here at home, starting with him directing the EPA to stick to the Renewable Fuel Standard as it was written into law.

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