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acc am oct 30
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(ACC Mentioned) Carbon Fiber and Plastics Driving Automotive Innovation
Oct 29, 2015 | Body Shop Business
According to the U.S. Department of Energy, automobile components made with advanced composite materials could reduce the weight of passenger cars by half and improve fuel efficiency by nearly 35 percent. That’s one of the primary reasons that automakers are ramping up use of composite auto parts made with carbon fiber-reinforced... -
Udall: Senate Leadership Needed to Break Dysfunction, Allow Debate on Popular Bills to Reform Chemical Safety Law, Reauthorize LWCF
Oct 28, 2015 | U.S. Senator Tom Udall
For the second time in two weeks, U.S. Senator Tom Udall and several others went to the Senate floor to urge Senate leaders to step in and break a stalemate holding up two very popular bills: Udall's bipartisan legislation to protect Americans from dangerous chemicals, and another bipartisan measure to reauthorize the Land... -
We Need A TSCA Reform Law That Preserves State Protections Until National Standards In Full Force
Oct 29, 2015 | Center for Effective Government
By Ronald White
This month marks the 39th anniversary of the passage of the Toxic Substances Control Act (TSCA), our nation’s outdated and ineffective law for protecting the American public from toxic chemicals. Due to legislative hurdles in the law, of the 84,000 chemicals registered for use in the U.S., EPA has only been able to ban or restrict... -
FDA Under Pressure To Ban Chemicals In Face Paint
Oct 29, 2015 | The Hill - Regulation
By Tim Devaney
This Halloween, the Food and Drug Administration (FDA) is facing pressure to ban toxic chemicals from children’s face paints. Thousands of parents have been spooked by claims that Halloween face paints may contain dangerous chemicals that pose a threat to their children. -
Chemical Safety Tops US Cleaning Industry's Concerns
Oct 29, 2015 | Chemical Watch
By Kelly Franklin
Issues related to materials, including chemical safety and raw material sourcing, rank as the highest sustainability concern for cleaning products manufacturers and stakeholders, according to a recent report from the American Cleaning Institute (ACI). -
(ACC Mentioned) All Aboard After Congress Votes To Avert Threatened Train Shutdown
Oct 29, 2015 | Fortune
By David Z. Morris
Lawmakers in Washington voted this week to extend a looming deadline for the implementation of a system that would let “smart trains” talk to each other and avoid accidents. Rail operators that failed to install the system by Dec. 31 would have faced hefty fines and legal liabilities. But as part of a short-term highway funding extension approved... -
(ACC Mentioned) In Louisville, Former U.S. Transportation Secretary Blasts Congress On Train Safety Delay
Oct 29, 2015 | WDRB
By Marcus Green
When a CSX train derailed and caught fire in this small Bullitt County city nearly nine years ago, carloads of burning chemicals sent plumes of black smoke into the air. The fire burned for four days. Not long after the derailment – and following other deadly passenger rail crashes – Congress gave the nation’s large train operators until the end of... -
Obama Signs Highway Funding Extension
Oct 30, 2015 | BNA Daily Environment Report
President Barack Obama signed a bill Oct. 29 extending authorization for surface transportation programs, including hazardous materials transportation programs, through Nov. 20. The Surface Transportation Extension Act of 2015 (H.R. 3819) passed the House Oct. 27 and the Senate Oct. 28 to reach the president's desk... -
Obama Signs Stopgap Funding, Extends Rail Safety Deadline
Oct 30, 2015 | E&E Daily News
By Sean Reilly
President Obama yesterday signed the latest stopgap road and public transportation funding bill as his administration acquiesced to a previously opposed delay in strengthening railroad safety requirements. The measure, H.R. 3819, will keep transportation programs in business through Nov. 20. It is the fourth... -
House Moves Toward Highway Bill Floor Debate Next Week
Oct 30, 2015 | BNA Daily Environment Report
By Stephanie Beasley
A six-year highway and transit authorization bill expected to reach the House floor next week will combine provisions from House legislation and a Senate-passed version, a House Rules Committee aide told Bloomberg BNA. That could make it easier for the House to accept the Senate's pay-fors. -
Audit Finds Montana Railroad Safety Lacking as Oil Traffic Rises
Oct 29, 2015 | AP (in the Wall Street Journal)
Montana’s oversight of railroad safety falls short at a time when crude-oil train traffic from the Bakken region, already high, is only expected to increase, a new audit found. Montana has no active rail-safety plan and employs only two inspectors to cover the state, the Montana Legislative Audit Division report released Wednesday said. In addition... -
South Shore Shutdown Averted With Deadline Extension
Oct 29, 2015 | The Chicago Tribune
By Carole Carlson
South Shore trains will keep running into 2016. Northern Indiana Commuter Transportation District General Manager Mike Noland breathed a sigh of relief when Congress approved a three-year delay for the installation of pricey new train safety technology that most railroads in the country haven't installed yet. -
EPA Science Advisers Seek Clarity in Fracking Report
Oct 30, 2015 | BNA Daily Environment Report
By Alan Kovski
The Environmental Protection Agency has to do a better job of explaining the limited scope of an assessment of the risks posed by hydraulic fracturing to drinking water, according to science advisers. The agency also should do a better job of clarifying some of the basics of what it included, the EPA Science Advisory Board members said during... -
As SAB Meets, Advocates Renew Calls For Broader EPA Fracking Study
Oct 29, 2015 | InsideEPA
By Amanda Palleschi
Environmentalists and property owners near hydraulic fracturing wells are renewing their calls for EPA to re-open its investigation into fracking’s drinking water impacts, saying the draft report the agency’s Science Advisory Board (SAB) is reviewing is deeply flawed. -
House Subpanel to Mark Up EPA Carbon Rule Resolutions
Oct 30, 2015 | BNA Daily Environment Report
The House Energy and Commerce Subcommittee on Energy and Power will mark up two resolutions (H.J. Res. 71 and H.J. Res. 72) Nov. 3 that would overturn the Environmental Protection Agency's Clean Power Plan and its regulation of carbon dioxide emissions from new and modified power plants, according to an Oct. 29 statement. -
House Subcommittee To Vote On Challenges To EPA Rules Next Week
Oct 29, 2015 | PoliticoPro - Whiteboard
By Andrew Restuccia
A House Energy and Commerce subcommittee will vote next week on two disapproval resolutions aimed at overturning the EPA's final climate regulations for power plants through the Congressional Review Act. The panel's energy and power subcommittee is scheduled to vote on the resolutions Tuesday at 1 p.m., the committee... -
The EPA Deserves a Stay
Oct 29, 2015 | The Wall Street Journal - Opinion
President Obama’s palace revolution on climate won’t come off peaceably after all, as 26 states and dozens of business groups this week filed suits against his takeover of the carbon economy. For all Mr. Obama’s eco-abuses, the legal reckoning now at hand is the most important. -
Briefing Schedule Set for Clean Power Plan Stay Requests
Oct 30, 2015 | BNA Daily Environment Report
By Anthony Adragna
A federal appeals court has agreed to a request from the Environmental Protection Agency to consolidate and fully brief arguments by Dec. 23 on whether to grant an immediate stay of the Clean Power Plan (West Virginia v. EPA, D.C. Cir., No. 15-1363 10/29/15). -
Court Accepts EPA Briefing Plan In ESPS Suit, Setting Quick Stay Deadline
Oct 29, 2015 | InsideEPA
By Dawn Reeves
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit has largely accepted EPA's proposed scheduling order in litigation challenging the agency's final existing power plant greenhouse gas rule, including imposing a fast deadline for any additional motions to stay the regulation during judicial review. -
EPA Touts Air Law Litigation Record As High Court GHG Challenge Looms
Oct 29, 2015 | InsideEPA
By Stuart Parker
EPA air lawyers are touting what they say is a very strong recent record in Clean Air Act litigation before appeals courts, ahead of fresh lawsuits challenging the agency’s tougher ozone standards and a suit seeking to block EPA’s power plant greenhouse gas (GHG) rules that many predict will be resolved by the Supreme Court. -
Senate GOP Environment Coalition Faces Uphill Fight
Oct 29, 2015 | PoliticoPro
By Darren Goode
The new coalition of Senate Republicans aimed at prodding the caucus to expand how it deals with climate change and environmental issues has sparked some hope that the party may edge back to the political center, even though the group isn't likely to have more than a modest effect on any legislation. -
Senate Republicans Form Informal Environmental Caucus
Oct 30, 2015 | BNA Daily Environment Report
By Anthony Adragna
Four Senate Republicans have formed an informal group to prod their party toward developing a more concrete platform on how to protect the environment, address climate change and promote clean energy development. Sens. Kelly Ayotte (N.H.), Lindsey Graham (S.C.), Mark Kirk (Ill.) and Lamar Alexander (Tenn.)...
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(ACC Mentioned) Carbon Fiber and Plastics Driving Automotive Innovation
Oct 29, 2015 | Body Shop Business
According to the U.S. Department of Energy, automobile components made with advanced composite materials could reduce the weight of passenger cars by half and improve fuel efficiency by nearly 35 percent. That’s one of the primary reasons that automakers are ramping up use of composite auto parts made with carbon fiber-reinforced plastics (CFRP) in their vehicles.
The growing trend toward “lightweighting” vehicles through use of lighter, advanced materials such as CFRP is driven in large part by the Corporate Average Fuel Economy (CAFE) fuel efficiency standards mandating 54.5 miles per gallon for auto fleets by 2025. In addition, buyers of new vehicles say fuel economy remains the most influential factor in determining which vehicle they select, according to a survey by J.D. Power.
CFRP are both lightweight and especially strong, up to 10 times stronger than steel, 50 percent lighter than steel and 30 percent lighter than aluminum.
“The combination of carbon fiber and lightweight plastics creates an advanced composite matrix, something much tougher than either material could be on its own,” said Steve Russell, vice president of plastics for the American Chemistry Council, which sponsors the Plastics Make it Possible initiative. “These advanced materials will help automakers reach their fuel efficiency goals, reduce emissions and save consumers money at the pump.”
In addition to improved fuel efficiency, CFRP components can contribute to safety since they can absorb up to 12 times more crash energy than steel.
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Oct 28, 2015 | U.S. Senator Tom Udall
For the second time in two weeks, U.S. Senator Tom Udall and several others went to the Senate floor to urge Senate leaders to step in and break a stalemate holding up two very popular bills: Udall's bipartisan legislation to protect Americans from dangerous chemicals, and another bipartisan measure to reauthorize the Land and Water Conservation Fund (LWCF), which expired on Sept. 30.
Both bills have enough support to pass the Senate easily, but they are caught in a procedural knot. Senator Richard Burr (R-N.C.) is blocking Udall's chemical safety bill because he wants a vote on the LWCF reauthorization at the same time. And because a small group of Republican senators object to reauthorizing the LWCF in its current form, neither bill can move.
Udall said he and other senators are frustrated, and he urged Senate leaders to break the stalemate: "We have two pieces of legislation, very popular pieces of legislation, with enough votes to get them on the floor, but we can't get them on the floor. We're in a situation where the leadership needs to step in and say both of these have huge bipartisan support, let's have a vote on them. We shouldn't have this dysfunction, this gridlock," Udall said in his remarks. "If people have an objection they can come down to the floor and voice it."
Udall's bill, introduced with Sen. David Vitter (R-La.), would reform the broken Toxic Substances Control Act of 1976 (TSCA). Because of a court decision and flaws in the law, TSCA has prevent the Environmental Protection Agency (EPA) from regulating any more than a handful of dangerous chemicals - even known carcinogens like asbestos. Udall's Frank R. Lautenberg Chemical Safety for the 21st Century Act would require the EPA to test and regulate new and existing chemicals, taking into consideration only the impact the chemicals might have on the people who are most at risk: infants, pregnant women, the elderly and chemical industry workers.
Udall told the story of Dominique Browning, who leads the group Moms Clean Air Force. Browning, a cancer survivor, supports Udall's chemical safety reform bill in part because of her own experience. Her doctor told her that her illness was most likely caused by environmental factors. Udall said he is pushing for TSCA reform to protect Americans - especially mothers and their children.
"This is about people like Dominique Browning, who want to see a cop on the beat to deal with dangerous chemicals," Udall said in his remarks.
Udall added that he wants to reauthorize the LWCF, which has enabled New Mexico to conserve thousands of acres of land. Parks and recreation opportunities supported by the LWCF create and sustain jobs and contribute millions of dollars to New Mexico's economy.
"People love their parks, they love the Land and Water Conservation Fund," Udall said. "This is something we shouldn't have let lapse."
Udall was joined on the floor by Senators Jeff Merkley (D-Ore.) and Edward J. Markey (D-Mass.). As Udall and other senators did last week, Merkley asked unanimous consent to take up and pass the LWCF reauthorization bill, S. 2165. But Senator James Lankford (R-Okla.) objected. Udall then asked for unanimous consent to take up TSCA reform. Burr asked to amend it by adding the reauthorization of the LWCF. Lankford objected, and so Burr objected to beginning debate on TSCA reform. Both bills remain blocked. -
We Need A TSCA Reform Law That Preserves State Protections Until National Standards In Full Force
Oct 29, 2015 | Center for Effective Government
By Ronald White
This month marks the 39th anniversary of the passage of the Toxic Substances Control Act (TSCA), our nation’s outdated and ineffective law for protecting the American public from toxic chemicals. Due to legislative hurdles in the law, of the 84,000 chemicals registered for use in the U.S., EPA has only been able to ban or restrict nine toxic chemicals since the law was passed in 1976.
Efforts in Congress over the past several years to reform TSCA are now culminating with the possibility that revised TSCA legislation will advance in the Senate next month. Though the current version of the Senate legislation has addressed some of the flaws raised by chemical safety and public health advocates in previous versions of the legislation, several problems remain.
Our country's primary chemical safety law was passed 39 years ago; we need an updated law that still allows states to protect their citizens.
Perhaps most significant of remaining concerns is language that prohibits states from adopting future toxic chemical safeguards even before the Environmental Protection Agency (EPA) completes action to ensure that the public is adequately protected.
The chemical bisphenol A, better known as BPA, represents a case in point. BPA was identified by EPA more than five years ago as needing a priority health review due to its toxic effects on human reproduction and development. Studies have also linked BPA to heart disease, obesity, and asthma in children. Last year the agency included it in their updated list of priority chemicals for review. In response to public health concerns, 10 states have passed legislation that bans the use of BPA in children’s products such as bottles, sippy cups, and food containers, and several major retailers have eliminated the use of BPA in the children’s products as well as the water bottles they sell.
But EPA is expected to take several more years before they complete their assessment of BPA’s health risks and other states aren’t waiting for EPA to take action. Eight states have laws pending that would ban BPA in children’s products and in several states eliminate its use in receipt paper, a significant source of BPA exposure in adults. But if the current proposed Senate bill is adopted into law, state officials that attempt to protect their residents from BPA in the future would be prohibited from doing so once EPA started developing regulations. The chemical industry lobbied intensely to ensure that restrictions on future state efforts to restrict toxic chemicals remain in the new TSCA legislation. Last month, attorneys general from the states of Washington, Vermont, New Hampshire and California wrote to Senate leaders voicing their concern and urging that the Senate bill drop this “regulatory pause”.
The Senate should adopt the House bill’s provision that would still allow states to protect citizens from chemicals EPA has not yet regulated.
In contrast to the Senate bill, the House of Representatives passed a less complex version of TSCA reform legislation in June by an overwhelming 398 to 1 vote. Its bill would not prevent states from adopting new safeguards until new EPA requirements are actually implemented and are fully in force. Ideally states should always have the option of establishing more protective health and safety standards than those set by the national government. However of the two TSCA reform bills now likely to be considered by Congress, the House legislation is a much more reasonable, common-sense approach to addressing new state standards than the Senate bill, which would hold the health of the American people hostage to the historically glacial pace of EPA’s scientific review and the rule development process.
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FDA Under Pressure To Ban Chemicals In Face Paint
Oct 29, 2015 | The Hill - Regulation
By Tim Devaney
This Halloween, the Food and Drug Administration (FDA) is facing pressure to ban toxic chemicals from children’s face paints.
Thousands of parents have been spooked by claims that Halloween face paints may contain dangerous chemicals that pose a threat to their children.
Nearly 40,000 people are petitioning the FDA to ban lead, nickel, cobalt and chromium from Halloween face paints after Sen. Charles Schumer (D-N.Y.) raised concerns about the issue earlier this month.
“Every Halloween we worry about the candy we’re putting in our kids’ mouths but nowadays, we need to worry about the face paint we’re putting on our kids’ faces,” Schumer said in a statement. “Toxic Chinese chemicals in children’s Halloween makeup and face paint is a scary thought, and yet, often times, parents don’t even know what’s in these products.
"When it comes to the kind of makeup our kids slather on at Halloween, lead, nickel and cobalt do not belong, and so, I am urging the FDA to unmask the ingredients that are often left off of the packaging,” he added.
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Chemical Safety Tops US Cleaning Industry's Concerns
Oct 29, 2015 | Chemical Watch
By Kelly Franklin
Issues related to materials, including chemical safety and raw material sourcing, rank as the highest sustainability concern for cleaning products manufacturers and stakeholders, according to a recent report from the American Cleaning Institute (ACI).
Transparency, defined by public disclosure of information related to sustainability, governance and products, also ranked as a top concern.
According to ACI president and CEO Ernie Rosenberg, the trade group “is already tackling a number of these top-tier issues”.
Through the trade group's Cleaning Product Safety Initiative, the ACI has compiled an ingredient inventory of more than 900 substances, used in its members' products, and has made available a hazard dataset that allows consumers to learn about potential risks, associated with those chemical ingredients.
Earlier this year, the industry group expanded the inventory to include human exposure models, associated with consumer product use.
The ACI has also partnered with other trade groups, to offer a voluntary chemical ingredient disclosure initiative that facilitates a “uniform system for providing ingredient information to consumers in a meaningful and easy-to-understand way”, across several consumer products industries.
ACI vice president of sustainable initiatives, Brian Sansoni, said that “many of our member companies are providing more information than ever before about their ingredients in their products.” He added that the ACI “[expects] these types of transparency programmes to grow and evolve in the months and years to come”.
The trade group's third biennial sustainability report included, for the first time, a “materiality assessment”, which drew on responses from cleaning producers and stakeholders to identify top sustainability concerns for the industry.
In addition to materials and disclosure issues, these included: climate change and greenhouse gas emissions;ecological impacts;water use; andworkplace health and safety.
Mr Sansoni said that the deeper understanding of the industry's priority issues will allow them to “assess the extent to which our current initiatives address these”, and to determine whether the trade group should “adjust our initiatives accordingly”.
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(ACC Mentioned) All Aboard After Congress Votes To Avert Threatened Train Shutdown
Oct 29, 2015 | Fortune
By David Z. Morris
Lawmakers in Washington voted this week to extend a looming deadline for the implementation of a system that would let “smart trains” talk to each other and avoid accidents.
Rail operators that failed to install the system by Dec. 31 would have faced hefty fines and legal liabilities. But as part of a short-term highway funding extension approved by the House on Tuesday and the Senate on Wednesday, the new deadline would be end of 2018, with the possibility of further extensions for some operators.
The original deadline for the so-called “Positive Train Control” was set by the Rail Safety Improvement Act of 2008. Rail industry representatives called the deadline arbitrary because the technology wasn’t commercially available at the time— and, therefore, no one really knew when it would be ready.
Though railways have reported spending billions of dollars on implementing the new safety system, it has been clear for nearly two years would be unable to meet the original deadline because of technical challenges and the vast American rail network. The slow rollout became a topic of hot debate earlier this year when an Amtrak train derailed in Philadelphia on a section of track without the safety system installed, killing eight people.
Railroads and passenger systems have spent recent months threatening service shutdowns as soon as the end of October, and issuing dire warnings about the potential impact of a broader shutdown. Earlier this month, in a conference call with several audibly frustrated rail executives, Metra CEO Donald Orseno told reporters the Chicago passenger rail system would have to be shut down without a deadline extension.
On the freight side, the American Chemistry Council–which represents hazardous material producers that would have been particularly impacted – concluded that curtailed rail service could have triggered a 2.6% GDP contraction starting in the first quarter of next year.
In normal political times, these declarations and reports might have seemed like a bit of kabuki – there’s no way that Congress could let America’s trains shut down because of a deadline they imposed themselves, right? But considering that legislators’ inability to reliably fund highways has already become a perennial drain on the national economy, perhaps worst-case scenarios were worth talking about.
That’s especially true because there was real opposition to the extension, particularly from Sen. Barbara Boxer (D-Calif.), who had instead proposed a much stricter system of case-by-case, one-year extensions. Boxer reportedly dropped her opposition in exchange for confirmation of new Federal Railroad Administration head Sarah Feinberg.
President Obama is expected to sign the highway bill and accompanying smart train extension soon.
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Oct 29, 2015 | WDRB
By Marcus Green
When a CSX train derailed and caught fire in this small Bullitt County city nearly nine years ago, carloads of burning chemicals sent plumes of black smoke into the air. The fire burned for four days.
Not long after the derailment – and following other deadly passenger rail crashes – Congress gave the nation’s large train operators until the end of 2015 to install new technology meant to prevent similar disasters.
Positive train control involves devices that monitor trains’ location and speed and track signals, activating brakes if a collision is imminent. Its goal is to stop accidents mainly caused by operator error, such as excessive speed.
“I think that would be a big asset for us as emergency responders and ... folks who live around any kind of derailment area,” said Rob Orkies, chief of the Zoneton Fire District, which responded to the Bullitt County crash. “I could see it as a positive impact.”
But Congress is giving railroads more time to act. The House and Senate agreed this week to move the deadline for making the upgrades until Dec. 31, 2018, after railroads warned lawmakers they weren’t ready and threatened to dramatically slow freight shipments without an extension.
During a visit to Louisville on Thursday, former U.S. Transportation Secretary Ray LaHood, a Republican who represented Illinois in the U.S. House from 1995 until 2009, said the congressional action sends the “wrong message about our priority on safety.”
“If positive train control had been on those tracks on that Philadelphia Amtrak train, that crash (last May) would not have occurred and people would not have been injured or killed,” LaHood, who served in the Obama administration from 2009 to 2013, said in an interview with WDRB News.
All but two members of Kentucky’s congressional delegation voted for the 2008 bill requiring the automated system on passenger trains and railroads carrying shipments of some toxic and poisonous chemicals. Then-U.S. Rep. Geoff Davis, R-4th, and former Senator Jim Bunning opposed the measure.
LaHood voted for the bill.
“We need positive train control,” he said. “Congress thought it was a good idea when they passed it. Now to extend the deadline I think is a very bad idea and it sends the wrong message about our priority on safety.”
But Barry Barker, TARC’s executive director and legislative committee chair for the American Public Transportation Association, said railroads simply weren’t able to install the complex network of technology in time.
“The reality of it is that the technology is not there to do what they want to do under the law, so it became a question of: Do you start fining people and shutting down the rail systems or do you give them this two year break?” he said.
Industry groups praised the congressional action. The American Chemistry Council, which had predicted “cascading impacts on the nation’s food, energy, and water supplies,” said the bill will allow critical supplies of chlorine and other chemicals to keep moving.
Kentucky corn growers typically use trucks and barges to move shipments of their grain, so a freight slowdown would have been minimal in Kentucky, said Laura Knoth, executive director of the state’s corn growers association.
But she said rail is the preferred way to move corn in other parts of the country.
“It’s very important for the grain industry,” she said. “In the upper Midwest rail is just critical to get it anywhere."
Through 2014, North American railroads had spent more than $5 billion installing PTC systems, according to the Association of American Railroads. CSX, which operates freight lines in the Louisville area, has spent more than $1.4 billion, spokesman Rob Doolittle said.
CSX doesn’t share detailed figures on how much money it has spent in Kentucky, where upgrades are occurring along routes that carry shipments of hazardous chemicals, he said.
“There’s technology being deployed in many places to support the system,” he said.
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Obama Signs Highway Funding Extension
Oct 30, 2015 | BNA Daily Environment Report
President Barack Obama signed a bill Oct. 29 extending authorization for surface transportation programs, including hazardous materials transportation programs, through Nov. 20. The Surface Transportation Extension Act of 2015 (H.R. 3819) passed the House Oct. 27 and the Senate Oct. 28 to reach the president's desk by the Oct. 29 expiration date (209 DEN A-20, 10/29/15). The extension also moves the deadline for positive train control system installation by railroads, including those carrying toxic-by-inhalation materials. The House will move next week to address its six-year surface transportation bill with hazmat provisions on the floor. The Senate passed its own six-year bill in July.
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Obama Signs Stopgap Funding, Extends Rail Safety Deadline
Oct 30, 2015 | E&E Daily News
By Sean Reilly
President Obama yesterday signed the latest stopgap road and public transportation funding bill as his administration acquiesced to a previously opposed delay in strengthening railroad safety requirements.
The measure, H.R. 3819, will keep transportation programs in business through Nov. 20. It is the fourth short-term measure that Obama has signed since August 2014; members of Congress hope it will give them enough time to wrap up work on a three-year funding measure. The Senate passed its version in July; the full House could take up the longer-term legislation next week, according to a Rules Committee notice.
More contentiously, the bill signed yesterday gives railroads at least until the end of 2018 to implement the automated safety system known as positive train control (PTC). The legislation also leaves open the option of a two-year grace period after that for carriers that meet certain conditions.
The large freight railroads had said they could not meet the previous Dec. 31 deadline, set by a 2008 law enacted soon after a commuter train crash killed 25 people in the Los Angeles area. Without more time for implementation, some warned that they would halt passenger train traffic and chlorine shipments on their tracks for fear of the potential liability. Joined by trade groups for the chemical industry, drinking water utilities and other businesses, they mounted an intense lobbying campaign in favor of a blanket extension.
Opposed were the White House and a handful of Democratic senators. The administration, which noted that some railroads had made more progress toward installing PTC equipment than others, wanted to phase in implementation by working with individual railroads. In April, Sens. Barbara Boxer of California, Richard Blumenthal of Connecticut and three other Democrats introduced legislation that would have allowed the Federal Railroad Administration to dole out one-year extensions only on a case-by-case basis.
Earlier this month, Boxer said any rollback of the deadline should be part of a long-term transportation bill. This week, Blumenthal said he was doing everything he could to "separate" the proposed extension from the short-term funding measure.
But any such effort risked delaying the bill's passage, needed to ensure the smooth flow of federal dollars to road and transit projects. If Blumenthal was in the Senate chamber when the legislation reached the floor yesterday, he did not audibly object to its approval during a voice vote. Boxer offered only token opposition, offering and quickly withdrawing a suggestion that the extension be limited to a year.
But she had previously obtained the assurance of Senate Commerce, Science and Transportation Chairman John Thune (R-S.D.) to move the bill in tandem with the nomination of Sarah Feinberg to head the railroad administration. Feinberg, whose candidacy had won committee approval by a 19-1 margin the day before, was quickly confirmed, also on a voice vote.
In a statement afterward, Boxer said she was disappointed at failing to shorten the length of the PTC extension but added that "a strong team of senators brought enough pressure" to push Feinberg's nomination through.
"If we care about safety, we need to have someone leading the agency, and Sarah Feinberg is passionate about safety," Boxer said.
Not immediately clear was the future of an American Chemistry Council lawsuit filed last month that sought to force freight railroads to keep moving chorine and other "toxic-by-inhalation" products if no extension was granted (Greenwire, Oct. 12). While the legislation signed yesterday "obviously" changes things, spokesman Scott Jensen said in an email, he could not immediately outline the council's plans, both for the litigation and a parallel filing with the Surface Transportation Board.
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House Moves Toward Highway Bill Floor Debate Next Week
Oct 30, 2015 | BNA Daily Environment Report
By Stephanie Beasley
A six-year highway and transit authorization bill expected to reach the House floor next week will combine provisions from House legislation and a Senate-passed version, a House Rules Committee aide told Bloomberg BNA. That could make it easier for the House to accept the Senate's pay-fors.
The long-delayed highway bill will be one of the first major pieces of legislation to come to the floor under newly elected House Speaker Paul Ryan (R-Wis.). Transportation Secretary Anthony Foxx told reporters Oct. 29 that he expects Ryan to make it a priority to complete a highway deal before a short-term patch expires Nov. 20.
The House Rules Committee is scheduled to meet Nov. 2 to consider the Senate-passed highway bill, which was an amendment to the Hire More Heroes Act (H.R. 22) passed by the House earlier this year. A second meeting to establish groundrules for considering amendments to the House highway bill is expected to happen Nov. 3, the committee aide said.
The aide also said the highway legislation slated to reach the House floor next week will combine provisions from the House and Senate bills. That could create an easier path for House lawmakers to adopt revenue provisions in the Senate bill.
The House Transportation and Infrastructure Committee recently approved a six-year, $325 billion highway bill (H.R. 3763) that does not yet include a finance title but is expected to fund programs for three years(205 DEN A-17, 10/23/15). The Senate passed a $350 billion, six-year bill (H.R. 22) in July .
The Senate-passed bill includes three years of guaranteed funding. The legislation would transfer $46 billion to the Highway Trust Fund to supplement slumping motor fuels tax receipts and offset the costs with measures that include reducing Federal Reserve dividend payments to member banks.
Ryan to Oversee Highway Vote as Speaker
The six-year surface transportation bill will be one of the first major votes shepherded by Ryan, who was responsible for highway and transit funding issues as chairman of the tax-writing Ways and Means Committee.
“I've had many conversations with Speaker Ryan previously in his role as the House Ways and Means chair,” Foxx said during a press call Oct. 29. “He's hearing from his colleagues on both sides of the aisle how critical getting a highway bill is. And I'd expect him to work to find a way to get something done.”
Foxx added that the big questions are how much funding Ryan will push for—and for how many years.
Foxx Optimistic About Very Short Patch
The Senate cleared a short-term highway patch on Oct. 28 that will reauthorize surface transportation programs for the next three weeks while Congress reconciles a long-term highway bill . President Barack Obama signed the extension into law on Oct. 29.
Foxx said he was “cautiously optimistic” that lawmakers would agree to and pass a multiyear highway deal before the extension expires Nov. 20.
“I think that the fact that they made [the extension] so short is an indication of the optimism on both sides of the Hill that something can get done in relatively short order,” Foxx said. “I am hopeful that the bill is big enough to make a dent in the growing challenges of infrastructure in our country.”
Uncertainty Affects DOT Grants
Foxx said that the growing need for a multiyear surface transportation reauthorization that includes higher levels of federal funding was evident with the increasing number of applications the Department of Transportation recently received for the Transportation Investment Generating Economic Recovery (TIGER) competitive grant program.
The DOT announced Oct. 29 that it would provide $500 million in TIGER grants for 39 transportation projects in 34 states. The agency said it received 627 eligible applications from 50 states and several U.S. territories requesting $10.1 billion, or 20 times the available funding.
“I think a lot of what's happening across the country is that as transportation dollars dwindle at the federal level, TIGER is increasingly becoming the escape valve for projects that are looking for dollars,” Foxx said. “Quite frankly, we're seeing more and more ‘state of good repair' projects come through TIGER that are literally projects designed to get roads resurfaced or bridges repaired or things like that, critical and urgent needs but needs that are typically handled through the normal allocation of federal highway and aid dollars.”
This is the seventh round of TIGER grants since 2009. So far a total of $4.6 billion has been provided to 381 projects under the program.
Forty-three percent of the most recent TIGER grant funding will be directed to rural areas, such as the Native American village of Point Hope, Alaska. The Transportation Department said that it is the highest percentage of TIGER funding it has ever provided to rural projects.
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Audit Finds Montana Railroad Safety Lacking as Oil Traffic Rises
Oct 29, 2015 | AP (in the Wall Street Journal)
Montana’s oversight of railroad safety falls short at a time when crude-oil train traffic from the Bakken region, already high, is only expected to increase, a new audit found.
Montana has no active rail-safety plan and employs only two inspectors to cover the state, the Montana Legislative Audit Division report released Wednesday said. In addition, there is a lack of statewide emergency planning and hazardous-material response capability should an oil spill occur, the report said.
That is a potentially precarious situation with a new crude-oil transfer station in North Dakota coming online that should boost oil traffic crossing Montana from about 10 trains a week to as many as 15 cars a week. About 20% of Montanans live in an evacuation zone for an oil-train derailment, which is within a half-mile of a rail line, the report said.
Two of the agencies criticized in the report said they were restricted by state or federal law in what they could do.
Trains carrying Bakken crude have been involved in fiery derailments in six states in recent years. In 2013, a runaway train derailed and exploded in downtown Lac-Mégantic, Quebec, killing 47 people.
More recently, a train hauling Bakken crude derailed and spilled 35,000 gallons near the remote northeastern Montana town of Culbertson in July. That area was highlighted in the audit for its lack of equipment and trained manpower to respond to a spill.
The audit focused its assessment on the efforts of the state’s Public Service Commission, the Disaster and Emergency Services agency and the Department of Transportation. It credited the Transportation Department with adequately managing highway rail-crossing safety, but it found problems with the other agencies.
The Public Service Commission is responsible for the supervision of railroads in partnership with the Federal Railroad Administration. The commission hasn’t conducted a rail-safety risk assessment and doesn’t have enough inspectors to adequately cover the state, the auditors said.
“Aside from ensuring the minimally mandated number of rail-safety inspections are being conducted on an annual basis, the PSC is not actively engaged, internally or externally with other stakeholders, in rail safety,” the report said.
Commission spokesman Eric Sell said Thursday that the agency plans to introduce the issue next week for a possible investigation. He said the state’s role in rail regulation is subservient to the U.S. government, and only the state Legislature can authorize hiring additional inspectors.
“This is really out of our control with the limited resources we have,” Mr. Sell said. “If the Legislature finds we should take a bigger role and provides more resources, we’d be happy to do that.”
The Montana Legislature’s next session isn’t until January 2017.
The audit suggested lawmakers take railroad oversight away from the Public Service Commission if it “is unwilling or unable to prioritize its railroad safety activities.” Mr. Sell said that would be the prerogative of the Legislature.
The review also faulted Disaster and Emergency Services for weaknesses in statewide emergency planning and in the ability to quickly respond to a hazardous material spill, particularly in northeastern Montana, where BNSF Railway’s main northern line crosses.
There aren’t enough properly trained and equipped firefighters for the area to have its own hazmat team, and no professional fire department to host one, the report said.
The nearest regional hazmat team is 300 miles away in Billings. Two rail companies have their own teams, but they are primarily meant to respond to spills in rail yards.
As a result, many local governments’ response plans to hazardous material spills entail forming a perimeter to keep people out until trained responders arrive, which could take 12 hours or more depending on the distance and the season, according to the audit.
Adjutant Gen. Matthew Quinn said in a written response that the jurisdiction of the Department of Military Affairs—the parent agency of Disaster and Emergency Services—is limited by state law, which gives local governments the responsibility for their own emergency preparedness and response.
The department plans to hold a railroad hazmat exercise in 2017 and will advise and assist those local governments to the extent of its authority, Mr. Quinn said.
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South Shore Shutdown Averted With Deadline Extension
Oct 29, 2015 | The Chicago Tribune
By Carole Carlson
South Shore trains will keep running into 2016.
Northern Indiana Commuter Transportation District General Manager Mike Noland breathed a sigh of relief when Congress approved a three-year delay for the installation of pricey new train safety technology that most railroads in the country haven't installed yet.
"I'm very relieved. If you were to ask me when I thought this would happen, I thought it would be the last minute," Noland said Thursday. "I'm happy we know in October."
The technology, known as positive train control, could likely have averted the Amtrak derailment in May that killed eight people in Philadelphia.
President Barack Obama is expected to sign the larger transportation funding bill into law.
The NICTD board approved a resolution earlier this month vowing to suspend South Shore service Jan. 1 because it won't have the system installed in time.
Railroads across the country, including the Metra commuter line in Chicago, called on Congress to extend the deadline, also vowing to shut down.
Noland said the outcry led to greater understanding about positive train control. "What a bipartisan effort this was," he said. "Hats off to the Indiana delegation. They were in early and supportive."
The bill gives railroads until Dec. 31, 2018, to install the expensive technology, and they can seek a waiver for up to another two years if needed.
Positive train control relies on GPS, radio signals and computers to monitor a train's position and automatically slow or stop trains that are in danger of colliding or derailing due to excessive speed. Many railroads were late starting on PTC while they waited for the government to develop standards for the technology and while they tried to decide which approach best suited their needs.
The NICTD board of directors has approved an $80 million contract with the Parsons Engineering Group to install the system, but doesn't it expect it to be ready until about December 2018.
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EPA Science Advisers Seek Clarity in Fracking Report
Oct 30, 2015 | BNA Daily Environment Report
By Alan Kovski
The Environmental Protection Agency has to do a better job of explaining the limited scope of an assessment of the risks posed by hydraulic fracturing to drinking water, according to science advisers.
The agency also should do a better job of clarifying some of the basics of what it included, the EPA Science Advisory Board members said during an Oct. 28–29 meeting.
The advisers, holding a public discussion as part of their peer review of the EPA draft assessment, were bothered that the assessment lacked clear explanations for leaving out of the study such issues as the potential for off-site spills of fracking fluids, the leaks that can come from improperly closed wells and—above all else—the differing likelihood and severity of risks.
The scientists came back again and again to what they saw as a failure on the part of the EPA to provide indicators of what aspects of fracking should be of greatest concern in the context of drinking water risks. Readers could be left with the impression that everything could happen and should be feared, the advisers said.
They also stressed repeatedly that the assessment would be far more useful if it listed good management practices that reduce risks. They emphasized that despite the cautionary note from the EPA, the study does not identify or evaluate best management practices.
More Wanted on Risks, Practices
Several of the scientists suggested that it would be a good idea for the EPA to specify areas of additional research needed. Jeffrey Frithsen, an EPA scientist at the meeting of the advisory panel, said the agency would welcome advice from the panel on areas especially in need of additional research and data collection.
Frithsen helped open the first day of the meeting with cautionary notes on the limited scope of the study, titled “Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources,” released this year at almost 1,000 pages in length (108 DEN A-1, 6/5/15).
The assessment does not identify or evaluate best management practices. It also is not it a risk assessment for human exposure and does not identify or evaluate policy options, Frithsen said.
But throughout the two-day meeting, the science advisers made it clear that some sort of listing of best management practices was needed in many parts of the report, and some degree of differentiation was needed between different risks in terms of likelihood and severity.
On one of the risks—the possibility of fracking fluids or gases migrating through the subsurface pathways to drinking water wells—Joseph Ryan, a University of Colorado professor of environmental engineering, said some statistical analysis of the chances of that happening was needed instead of the report's vague rhetoric about what “can” happen or what “may” happen.
Similar criticism was leveled throughout the advisers' meeting. Dean Malouta of White Mountain Energy Consulting LLC said much of the writing in a centrally important chapter on well construction, integrity and fluid injection was vague enough that “the reader is left to wonder if anything can happen anywhere any time.”
Definitions, Details Questioned
The EPA draft assessment contained much information, much of it good, but it needed more information and greater clarity in what it did contain, the science advisers said.
The definition of water resources in the EPA assessment includes saline underground water than no one uses for drinking water or would want to use without extensive treatment, a point that was touched upon in the discussion.
The EPA should include an explanation of why the agency chose to define drinking water resources as it did, said Joseph DeGeorge, a specialist in safety assessment for Merck Research Laboratories.
The report also confused various drill-site accidents as if they could all be connected to hydraulic fracturing simply because they occurred at a fracked well, more than one adviser said. They pointed to the report's highlighting of a 2007 leak of methane near Bainbridge, Ohio.
That leak was not related to fracking, said Shari Dunn-Norman, a geosciences professor in the Missouri University of Science and Technology. The Bainbridge accident was a cement failure, she said.
More information should be drawn from state agencies, where oil and gas companies file information routinely, several of the advisers said. Scott Bair, an Ohio State University geology professor, added that the assessment seemed to contain some confusion about what regulators—state or federal—are responsible for what aspects of oil and gas work.
Complex Challenges Acknowledged
The advisers acknowledged that some things cannot necessarily be made entirely clear.
On the subject of subsurface migration of methane, John Fontana, a geologist and president of Vista GeoScience LLC, said experts can easily disagree on where some gas originated.
“Identifying where stray gas comes from is an amazingly complex science,” Fontana said.
When gas is found in a water well or aquifer, “it almost always has a potential for a natural source,” he said.
But where information is lacking or uncertain, the assessment should do a clearer job of saying so, the advisers suggested.
The advisers plan to have a draft review with their recommendations on the EPA assessment by the end of January 2016. It will take several more months for the Science Advisory Board to come up with a final review, after which the EPA will produce a final version of the assessment.
Activists, Landowners Heard
The science advisory panel did not include activists, but it heard from them. The public was given some time to address the meeting on its first day.
Landowners from Pennsylvania, Wyoming and Texas who say their well water was polluted because of fracking also spoke, often in sharply emotional terms.
Environmental activists strongly objected to the limited scope of the assessment—including the lack of environmental impact assessment and the lack of human health risk assessments.
The activists objected especially that the executive summary of the assessment included the statement that no systemic problems had been found. The body of the report did not support that statement, they said.
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As SAB Meets, Advocates Renew Calls For Broader EPA Fracking Study
Oct 29, 2015 | InsideEPA
By Amanda Palleschi
Environmentalists and property owners near hydraulic fracturing wells are renewing their calls for EPA to re-open its investigation into fracking’s drinking water impacts, saying the draft report the agency’s Science Advisory Board (SAB) is reviewing is deeply flawed.
“The study was limited in scope, it was poorly designed and relied on industry data,” Food & Water Watch (FWW) Executive Director Wenonah Hauter said at an Oct. 28 press conference. She added that the study “has been used to justify the ongoing narrative about the safety of fracking” and that the report still contains “many examples of fracking groundwater contamination.”
And speaking during a public comment session at the start of the SAB fracking panel’s first in-person meeting Oct. 28, Tracy Carluccio of Delaware Riverkeeper, called on the agency to withdraw the draft report and launch a new study with a “more inclusive scope” that includes environmental impacts beyond drinking water. Carluccio also criticized the data EPA relied on, saying it was poorly documented, often industry-supplied and based on unjustified assumptions.
EPA has said 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.
SAB members have highlighted limitations in the agency’s landmark draft study, including its lack of “prospective” baseline studies (Inside EPA, Oct. 23).
But EPA defends the report, and at the start of the SAB panel’s first in-person meeting Oct. 28-30 in Washington, D.C., Jeffrey Frithsen, of the agency’s National Center for Environmental Assessment, noted that the draft study is not intended to examine human health or human exposure or to examine site-specific conditions. “It’s not a risk assessment,” he said. “Our assessment is focused on following the water.
Environmentalists and residents who live near fracking operations, however, are critical of EPA’s approach, with Ray Kemble, a Dimock, PA, landowner and former gas industry worker calling the EPA report “a real embarrassment to the Obama administration.”
“In 2007, my water was tested by Cabot Oil & Gas and was found to be clean and safe to drink before Pennsylvania allowed fracking to come to Dimock,” Kemble said at the press conference. But in 2008, his water became poisoned.
“The Pennsylvania [Department of Environmental Protection] and the EPA confirmed this contamination, but abandoned us in 2012 and did not even include us in their long-term study. I am here today to demand that EPA recognize us, include our case in this study, and reopen the investigation,” Kemble said.
EPA Studies
EPA began investigating under the Superfund law whether contaminated drinking water in Dimock was tied to fracking but announced in 2012 that it was taking no further action, ending the study without reaching any conclusions amid criticism from GOP lawmakers that the agency lacked authority under the Superfund law to conduct such an investigation.
Wyoming rancher John Fenton told a similar story at the Oct. 28 press conference, saying that EPA’s investigation into Pavillion, WY, drinking water pollution was stalled after it allowed the state to take over the investigation and state officials then “ignored us without explanation.”
EPA announced in 2013 that it was dropping work on its December 2011 draft study suggesting that fracturing fluid “likely” contributed to contamination of an aquifer in Pavillion, WY (Inside EPA, June 28, 2013).
“EPA seems to be intent on finding the facts to support the conclusion they’ve already reached -- ‘fracking is safe’,” Fenton said in a statement, adding in his remarks that EPA has become “an agency that has been been emasculated by the oil and gas industry.” And Earthworks policy director Lauren Pagel also expressed frustration with the Obama administration’s consideration of fracking impacts. “When push comes to shove, EPA headquarters always squashes the investigation, or minimizes the findings,” she said. “We thought the Obama administration was against the politicization of science. But when it comes to fracking, they’re not.”
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House Subpanel to Mark Up EPA Carbon Rule Resolutions
Oct 30, 2015 | BNA Daily Environment Report
The House Energy and Commerce Subcommittee on Energy and Power will mark up two resolutions (H.J. Res. 71 and H.J. Res. 72) Nov. 3 that would overturn the Environmental Protection Agency's Clean Power Plan and its regulation of carbon dioxide emissions from new and modified power plants, according to an Oct. 29 statement. Rep. Ed Whitfield (R-Ky.), the subcommittee chairman, told Bloomberg BNA Oct. 28 the full House hoped to consider both resolutions of disapproval in “early November.” The Kentucky Republican introduced the resolutions to block the final rules on Oct. 26. Companion resolutions have also been introduced in the Senate and are also considered likely for votes in November (209 DEN A-11, 10/29/15) .
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House Subcommittee To Vote On Challenges To EPA Rules Next Week
Oct 29, 2015 | PoliticoPro - Whiteboard
By Andrew Restuccia
A House Energy and Commerce subcommittee will vote next week on two disapproval resolutions aimed at overturning the EPA's final climate regulations for power plants through the Congressional Review Act.
The panel's energy and power subcommittee is scheduled to vote on the resolutions Tuesday at 1 p.m., the committee announced today.
The resolutions, which were authored by subcommittee Chairman Ed Whitfield, focus on killing the EPA rules for existing power plants and new plants respectively.
The Senate Environment and Public Works Committee is expected to soon vote on similar resolutions introduced by Senate Majority Leader Mitch McConnell and Sen. Shelley Moore Capito. But a committee spokeswoman declined to say when the panel will vote.
Final floor votes are expected in the House and Senate shortly before or during the Paris climate change summit, which is scheduled for Nov. 30-Dec. 11.
CRA resolutions only require a simple majority vote for passage. The resolutions are expected to easily win approval from the House and Senate once they clear the committees. But President Barack Obama will veto the measures and lawmakers do not have enough votes to override a veto. Oct 29, 2015 4:58 PM EDT
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Oct 29, 2015 | The Wall Street Journal - Opinion
President Obama’s palace revolution on climate won’t come off peaceably after all, as 26 states and dozens of business groups this week filed suits against his takeover of the carbon economy. For all Mr. Obama’s eco-abuses, the legal reckoning now at hand is the most important.
On Aug. 3 the Environmental Protection Agency finalized the so-called Clean Power Plan, or CPP, which orders states to reorganize their energy systems from power plants to electric outlets. But the EPA waited no fewer than 81 days until Oct. 23 to publish the rule in the Federal Register, a delay that matters in administrative law because publication formally opens the plan to judicial review. The average lag for the EPA this year on all other major rules is 27 days.
The EPA is stalling for time because the Obama crowd knows that states must rush to start the slow, capital-intensive and irrevocable transition away from fossil fuels over the next year or so to meet their 2020 “interim” targets. Even if the CPP is repealed by the next Administration, or junked by the courts, they’re hoping to intimidate the states and dictate the U.S. energy mix for a generation.
So the 26 Attorneys General and business lobbies are asking the D.C. Circuit Court of Appeals for a stay that would enjoin the CPP while the judiciary considers the legal merits. This would be unusual. Conventional regulatory litigation spools out over the years, with judges tending to defer to rule-makers.
But the EPA has invited more scrutiny by deliberately exploiting this deference. Its thinking is that if the energy reality on the ground shifts while the courts move at the snail’s pace, then losses are irrelevant. For instance, the Supreme Court overturned a mercury-emissions regulation earlier this year, albeit when it was too late. When the EPA published the rule in 2011, the low-ball prediction was that coal use would fall by less than 1%. Instead it plunged by 12% in 2012 alone and continued to drop.
Thus EPA Administrator Gina McCarthy could brag on Bill Maher’s show that however the Court ruled, “Most of [the utilities] are already in compliance, investments have been made, and we’ll catch up. We’re still going to get at the toxic pollution from these facilities.” So much for the rule of law.
The Clean Power plaintiffs can demonstrate immediate and permanent injury. The EPA’s own models show utilities will shed 233 coal-fired power plants in 2016 alone, or 20% of the grid’s remaining coal generation. Some marginal generators like rural electric nonprofit cooperatives may go under.
The plaintiffs are also likely to prevail on the legal merits, both statutory and constitutional. The 2,000-page CPP is conjured from a couple hundred words in a subsection of a 38-year-old statute about “best systems of emissions reduction.” Traditionally this has meant technology that can be installed on a given site, like scrubbers.
Now the EPA is rewriting the definition to direct states to regulate “outside the fence line” of power plants well beyond the best tech. They must not only decommission sources of carbon energy, but they must also run the green gamut from mandating a new fleet of wind and solar, building new transmission lines, creating more efficiency subsidy programs for consumers and much else. On a rewrite so grandiose, the EPA has earned a stay and deserves no administrative deference.
Such a claim of authority with no limiting principle will naturally expand over time. Under the pretext of regulating power plants, can the EPA instruct states to adopt green-city building codes that curtail the use of CO2-heavy cement? How about an organic fertilizer mandate for agriculture, or controls on “enteric fermentation”—er, flatulence—in cattle and other livestock? The EPA has entertained all of these possibilities in draft documents, and no sphere of public or private life will be spared.
Oklahoma Attorney General Scott Pruitt best limns the larger constitutional stakes. He grounds his argument in the Supreme Court’s anti-coercion doctrine, which teaches that the feds cannot commandeer sovereign state resources. The EPA says state agencies must rewrite their laws and programs to carry out orders from Washington headquarters, or else it will impose a more draconian federal plan. The Supreme Court reversed ObamaCare’s Medicaid expansion mandate because it denied states “a legitimate choice whether to accept the federal conditions.” One irony is that even if EPA weren’t rewriting black-letter law to bullrush the CPP, the rewrite itself would be unconstitutional.
The CPP will undermine growth, consumer incomes and U.S. competitiveness in ways that will be difficult for the next President to reverse, if he or she is so inclined. Perhaps this time the courts will give the EPA’s willfulness more than the customary wink and nod.
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Briefing Schedule Set for Clean Power Plan Stay Requests
Oct 30, 2015 | BNA Daily Environment Report
By Anthony Adragna
A federal appeals court has agreed to a request from the Environmental Protection Agency to consolidate and fully brief arguments by Dec. 23 on whether to grant an immediate stay of the Clean Power Plan (West Virginia v. EPA, D.C. Cir., No. 15-1363 10/29/15).
Any additional motions for an immediate stay of the regulation to slash carbon dioxide emissions from the nation's existing power plants would be due by Nov. 5, and the EPA must respond by Dec. 3 under the order from the U.S. Court of Appeals for the District of Columbia Circuit.
The three-judge panel that set the briefing schedule—Judges Janice Rogers Brown, Sri Srinivasan and Robert Wilkins—will likely not be the same panel to decide on the merits of the stay requests, several attorneys told Bloomberg BNA Oct. 29.
States and industry groups have asked the court to immediately grant a stay of the EPA regulation (RIN 2060-AR33; 80 Fed. Reg. 64,661), arguing it imposes immediate burdens on utilities and states and violates the Clean Air Act.
The order consolidates stay requests led by West Virginia, the Utility Air Regulatory Group, National Mining Association, U.S. Chamber of Commerce and a separate one from Oklahoma. It also has the effect of delaying any legal decision on the Clean Power Plan until after the end of international climate change negotiations in Paris.
Speedy Work From the Court
Judges ruled on the EPA's motion for a briefing schedule on the stay issue just one day after the agency made it. Consolidating the requests for stay would eliminate “chaotic and duplicative briefing” in the case and allow the court to move more quickly onto the merits of the case, the EPA said (209 DEN A-11, 10/29/15).
More than half the states and dozens of other organizations have already challenged the EPA's final rule in federal appeals court since its Oct. 23 formal publication. The regulation sets carbon dioxide emissions standards for existing power plants in each state but tasks state regulators with developing compliance plans.
Meanwhile, new lawsuits challenging the final rule continue to be filed. The Basin Electric Power Cooperative, a wholesale electric generation and transmission cooperative with members in nine states, filed its own challenge to the Clean Power Plan Oct. 29 (Basin Elec. Power Coop. v. EPA, D.C. Cir. , No. 15-1393, petition filed 10/29/15).
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Court Accepts EPA Briefing Plan In ESPS Suit, Setting Quick Stay Deadline
Oct 29, 2015 | InsideEPA
By Dawn Reeves
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit has largely accepted EPA's proposed scheduling order in litigation challenging the agency's final existing power plant greenhouse gas rule, including imposing a fast deadline for any additional motions to stay the regulation during judicial review.
The Oct. 29 per curiam order in West Virginia, et al. v. EPA, et al. says any additional stay motions must be filed by Nov. 5 and be limited to 20 pages. The court limits EPA to a 50-page response to all stay motions that is due by Dec. 3. One reply by stay opponents, limited to 32 pages, must be filed by Dec. 8, and any replies by stay supporters must be filed by Dec. 23 and be limited to 41 pages.
The order reflects the deadlines EPA suggested in an Oct. 28 motion but imposes stricter page number limits. It also provides one indication of the possible makeup of the three-judge panel that would rule on the stay requests -- a critical detail to the outcome of the ruling -- though the composition is not certain.
Despite the quick action on the stay requests, petitioners still have 60 days from Oct. 23 to petition for review of the rule, or to side with EPA in defending it.
EPA's request asked that the court set aside any stay motions received after Nov. 5, and only consider them if they raise new or outstanding issues. The court's order does not address this request.
The stay schedule suggests a ruling on the issue will come early next year, as industry groups seeking the stay predicted in an Oct. 26 call with reporters. That means the Obama administration will be able to go to international climate talks in Paris in December with its existing source performance standards (ESPS) in place.
The order also identifies the three-judge panel that signed the stay schedule as Janice Rogers Brown, a President George W. Bush appointee, and Obama appointees Sri Srinivasan and Robert Wilkins.
One environmentalist says, “We don't know for sure, but this could well be the” same panel that rules on the stay motions. “Beyond that is also uncertain,” the source notes.
However, one industry source says the panel is more likely a rotating motions panel, because those same three judges “have been ruling on all the procedural motions that are now being submitted to the D.C. Circuit on all the pending cases.”
Another industry source agrees, adding that the panel that issued the scheduling order is “almost certainly not” the merits panel.
The first industry source says the composition of the merits panel will probably not be known “until we get a ruling on the stay motions.” However, the source acknowledges it is “not impossible that this same panel would rule on the pending stay motions,” referencing another case where that outcome occurred. It is “unlikely” but not “impossible,” the source clarifies.
The makeup of the panel of judges that hears the case could be crucial to the outcome of the case, and one that has two Obama appointees would be seen as favoring EPA, whereas a panel with a majority of Republican appointees would not.
Earlier Panel
The court randomly assigns panels to cases, and in an earlier suit challenging the proposed ESPS, the three-judge panel consisted of GOP appointees Brett Kavanaugh, Thomas Griffith and Karen LeCraft Henderson. Those judges rejected the challenge as premature on procedural grounds, but were receptive to ESPS opponents' position during oral arguments in April.
However, that panel is unlikely to hear the new case after the court Oct. 8 issued its mandate -- a procedural step that formally imposes a ruling -- in favor of EPA in challenges brought by coal mining firm Murray Energy Corp. and a coalition of states led by West Virginia.
Petitioners in those cases had asked the full court in July to reconsider the panel's ruling, or in the alternative to delay issuing the mandate so the challenges over the final rule could be heard by the original panel. But EPA argued that the court had no choice but to dismiss the case, an action the court took when the mandate issued.
The chance of getting an all-GOP-appointed D.C. Circuit panel is only 8 percent, according to Brian Potts, an attorney at Foley Lardner, who suggested earlier this year that petitioners should seek to retain the same panel in the suit over the final ESPS.
In a related matter, Peabody Energy Corp. submitted an Oct. 29 motion to intervene in the case on the petitioners' side. “Peabody has an estimated 6.6 billion tons of proven and probable coal reserves in the United States. . . . However, the Rule is significantly harming and will continue to significantly impair Peabody's interest because it is aimed at reducing coal use in the United States,” the motion says.
In a subsequent Oct. 29 order, the court ordered petitioners to submit a variety of preliminary documents, including a statement of issues to be raised in the litigation, by Nov. 30. Petitioners and EPA must also file any dispositive motions by Dec. 14. But the court also said it would defer additional briefing “pending further order of the court.” In addition to the court's consideration of the stay requests, that deferral could be due to the fact that groups have until Dec. 22 to file petitions to review the ESPS -- 60 days from the Oct. 23 formal publication of the rule.
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EPA Touts Air Law Litigation Record As High Court GHG Challenge Looms
Oct 29, 2015 | InsideEPA
By Stuart Parker
EPA air lawyers are touting what they say is a very strong recent record in Clean Air Act litigation before appeals courts, ahead of fresh lawsuits challenging the agency’s tougher ozone standards and a suit seeking to block EPA’s power plant greenhouse gas (GHG) rules that many predict will be resolved by the Supreme Court.
Speaking at an air law conference organized by the American Law Institute-Continuing Legal Education (ALI-CLE) in Washington, D.C., Oct. 23, EPA Deputy General Counsel Ethan Shenkman said that EPA by its own terms has won 12 of 14 air law suits heard by the U.S. Court of Appeals for the District of Columbia Circuit in 2015. The D.C. Circuit generally hears cases challenging national regulations and “is really the court of last resort for so much of what we do,” Shenkman said, calling the agency’s relationship with the court “gold.”
EPA’s analysis counts as one lawsuit three early challenges to the agency’s proposed Clean Power Plan (CPP) rules for existing power plants, In re: Murray Energy Corp, Murray Energy, et al. v. EPA, et al., and West Virginia, et al. v. EPA, et al., which the agency won. The D.C. Circuit rejected these challenges because it deemed proposed rules not “final agency action,” and hence not subject to judicial review.
Murray Energy is once again litigating the existing source performance standards (ESPS) rule, this time in its final form, in West Virginia v. EPA, now pending before the D.C. Circuit. Many legal observers believe this litigation is likely to be ultimately decided by the Supreme Court, given the sweeping scope of the CPP and its novel use of air law authority to regulate energy use beyond power plants themselves.
The company was further the first challenger to file suit against EPA’s Oct. 1 tougher final ozone national ambient air quality standards (NAAQS), announcing its new suit on Oct. 26, the day of the rule’s publication in the Federal Register.
Of the two lawsuits the D.C. Circuit did not not decide in 2015 in EPA’s favor, EPA considers only one, Delaware Department of Natural Resources v. EPA, to be a straightforward loss, Shenkman said. In that case, the court rejected EPA’s rationale for exempting certain generators from air rules while they were operating as part of demand-response programs.
Shenkman counts another suit, EME Homer City Generation, L.P. v. EPA, as a partial loss for the agency. In the case, the D.C. Circuit on remand from the Supreme Court remanded the air emissions “budgets,” or maximum allowances, of several states under the Cross-State Air Pollution Rule (CSAPR), EPA’s emissions trading program for power plants that is designed to curb interstate air pollution.
The high court earlier in a 6-2 decision upheld key principles underpinning CSAPR, overturning a previous D.C. Circuit ruling that vacated the rule entirely. EPA air officials say they consider this a significant victory, because it preserves for future rules the trading program’s methodology, despite the ongoing problems with state emissions budgets.
EPA Victories
The remaining air law cases that the D.C. Circuit has heard so far this year, all victories for EPA, include cases covering GHG standards for motor vehicles, GHG permitting, air toxics regulations, EPA test fuels policy, interstate air pollution plans, animal feeding operations and others.
Shenkman said this undermines arguments that the composition of D.C. Circuit panels decides cases, when in fact the court takes a more even-handed approach regardless of whether the judges on a panel are Republican or Democratic appointees. However, at least in the years since 2011, some judges have heard more Clean Air Act cases than others, despite the fact that cases are allocated in “a random selection process, for the most part,” according to Shenkman. Panel selection is still something of a mystery, and there may be ways judges can ask for a particular case; “I don’t know,” he added.
Democratic appointee David Tatel has heard seven air law cases since 2011, GOP appointees Brett Kavanaugh and Thomas Griffith five and four respectively, and Chief Judge Merrick Garland, a Democratic appointee, also four, Shenkman said. A study of recent air act case outcomes shows that Democratic appointees support EPA’s position slightly more than their Republican-appointed colleagues, but the difference is small, Shenkman added.
Shenkman credited much of EPA’s recent success before the court to the agency’s experience in dealing with the court, and the court’s familiarity with the Clean Air Act. “We just take the D.C. Circuit very seriously. We have this long-term relationship with the D.C. Circuit. It is precious, it is like gold,” Shenkman said.
Shenkman’s analysis comes as many observers expect the CPP challenge to ultimately reach the Supreme Court, a venue that top EPA air lawyers say is less familiar and less predictable for the agency. At the ALI-CLE conference, top EPA air attorney Lorie Schmidt said “the Supreme Court is different,” because while the D.C. Circuit has a very large body of air act case law, the Supreme Court has very little. The high court is also more likely to change “bedrock” legal principles that EPA relies on when crafting rules and defending them in court, Schmidt said.
Leading legal analysts also differ in their interpretation of the Supreme Court’s recent air law decisions, but agree that by its own standards the high court is showing a remarkable interest in air act issues. Speaking at the ALI-CLE event, former Justice Department environmental defense lawyer Thomas Lorenzen, now a partner with law firm Crowell and Moring, said that since 2001 the court has heard five air law cases, which shows “an extraordinary appetite” for such litigation, “and I don’t think we are done,” as the court will likely hear a CPP challenge.
Chevron Deference
In addition to air law cases, two recent rulings by the high court also may have a significant bearing on future air act litigation, given their broad applicability to federal government regulation, Lorenzen said. These are the healthcare case King v. Burwell, in which the court declined to grant the government Chevron deference over a statutory interpretation, and Perez v. Mortgage Bankers Association, in which three conservative justices said they would consider overturning Auer deference, under which federal agencies are normally entitled to interpret their own regulations without the need for regulatory revisions.
Burwell raises the question of whether Congress has legitimately delegated its authority to a federal agency to act at all, or whether this runs counter to the “non-delegation doctrine” -- especially in the case of major, very expensive regulations with significant economic implications. In the case, the high court refused Chevron deference to the Internal Revenue Service over its reading of the Affordable Care Act, yet sided with the government anyway.
The Burwell “Chevron step zero” analysis “is likely to be an inquiry in all future environmental cases,” Lorenzen said. Traditionally, courts under the 1984 high court precedent established in Chevron USA, Inc. v. Natural Resources Defense Council take a two-step approach, asking first whether a statute is ambiguous or silent on a topic, and second, if so, whether a federal agency has permissibly interpreted the statute when regulating.
Lorenzen added that conservative Justice Antonin Scalia, in particular, sounds increasingly skeptical of Chevron deference, and that the high court’s conservative wing in general shows increasing hostility to federal agencies designing transformational regulations -- such as the CPP -- based on their interpretation of “long extant” statutory provisions not previously used for such sweeping purposes.
Law professor Lisa Heinzerling, with the Georgetown University Law Center, said the high court’s recent air law rulings are ambiguous, and lack a clear win-loss record. For example, the court in a 5-4 decision in Michigan v. EPA remanded EPA’s power plant air toxics rule to the agency, finding in an opinion authored by Scalia that EPA failed to consider costs in making a preliminary decision on whether it was “appropriate and necessary” to regulate the sector.
At face value, this appears a loss for EPA. However, the Supreme Court “left open all the important questions” surrounding the case, such as if or how EPA should consider ancillary benefits, and EPA “remains very much in control of the remand” at this point. The agency is retooling its cost-benefit analysis used for the regulation itself and hopes to issue a revised toxics rule in the spring, agency officials say.
EPA’s Schmidt said that, “ultimately, it may not change the regulation that power plants are subjected to.”
'Pragmatic' Result
In another recent case, Utility Air Regulatory Group (UARG) v. EPA, the court in 2014 rejected by a 9-0 vote the rationale for EPA’s GHG air permitting program, saying EPA’s interpretation of the air law permitting provisions is unreasonable. The ruling was complex, however, with several justices authoring opinions offering their own interpretation of the permit regime. Heinzerling said this showed that at least Scalia and three other justices were “quite grumpy about EPA.”
Nonetheless, the court left most GHG permits in place because they apply to sources included in EPA’s permitting program “anyway” for conventional pollutants, covering 83 percent of eligible sources instead of the 86 percent under EPA’s “tailoring rule” and related regulations. “Not a bad result for the agency,” Heinzerling said.
Schmidt concurred, calling the result “very pragmatic” and a victory for EPA policy. “We consider that a win for us,” Schmidt said. With respect to Michigan, Schmidt again underscored that EPA has taken costs into consideration from day one with the CPP, even though the GHG regulations for new and existing sources are governed by different statutory provisions -- air law sections 111(b) and 111(d) -- than the distinct air toxics provisions of section 112(d) that apply only to power plants.
Schmidt further noted that in addition to the environmental cases the high court does hear, there are many it does not, despite a rising tide of petitions for certiorari in environmental cases. The court’s refusal to hear such cases, most of which challenge EPA rules, is significant, Schmidt said.
However, industry attorney and former EPA General Counsel Roger Martella reiterated industry warnings that the CPP will not likely pass legal muster. He reprised arguments that the CPP overeaches by regulating entities far beyond the source; that air law section 111(d) prohibits regulation of an industry sector already regulated under section 112; and that section 111(d) does not apply to “owner-operators” of sources, but rather to sources themselves. Also, Burwell bodes ill for the CPP, Martella said. Attorney Vickie Patton, of the Environmental Defense Fund, countered that the attention on Burwell is misplaced, noting that Chevron itself was a Clean Air Act case. The CPP is a logical and flexible response to the high court’s own landmark 2007 ruling in Massachusetts v. EPA, in which the court found that EPA could regulate GHGs under the air act should it find that they endanger human health and the environment, she said.
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Senate GOP Environment Coalition Faces Uphill Fight
Oct 29, 2015 | PoliticoPro
By Darren Goode
The new coalition of Senate Republicans aimed at prodding the caucus to expand how it deals with climate change and environmental issues has sparked some hope that the party may edge back to the political center, even though the group isn't likely to have more than a modest effect on any legislation.
The four — Sens. Lindsey Graham (S.C), Kelly Ayotte (N.H.), Mark Kirk (Ill.) and Lamar Alexander (Tenn.) — have previously staked out moderate positions on environmental issues. They were part of a small group of Republicans who supported resolutions in January recognizing the human role in causing climate change, and their new group may help build some momentum behind what green lawmakers see as a trend.
“These are people who are reading the tea leaves,” former George W. Bush EPA administrator and New Jersey Gov. Christine Todd Whitman said. “They’re saying, look, we’ve got to be more than the party of no and this happens to be an important issue [and] a winning strategy.”
Graham has long sought to make the GOP platform greener, even before he launched his presidential bid. But that effort, like his White House aspirations, hasn't had much success.
“This is significant and it’s part of a pattern that we’ve seen this year where Republican elected officials and candidates increasingly are fearful that they’re going to end up on the wrong side of history and the wrong side of voters,” said Sen. Brian Schatz (D-Hawaii), who authored one of the non-binding climate change amendments during January’s debate on the Keystone XL pipeline. “The longer-term play is that Republicans nationwide recalibrate and don’t concede environmentalism to the Democrats."
Some observers question whether the new Senate Energy and Environment Working Group will end up merely as a fleeting effort to help Ayotte and Kirk appeal to moderate and independent voters in their tight reelection contests rather than as a substantive move to press for a more environmentally friendly Republican policy.
“There may be a political calculus on behalf of the two senators who have tough races next year, but that is fine by me,” said Rob Sisson, head of ConservAmerica and formerly Republicans for Environmental Protection. “The calculus in Illinois and New Hampshire is the same as Virginia, Florida, Colorado, Michigan, Pennsylvania and few other pivotal states.”
Whitman said she thought the creation of the working group appeared to be more than a short-term strategy to help Ayotte and Kirk hold their seats.
“If you take that argument, it means the people in their states care about this,” she said. “So it’s not something that you’re going to start and walk away from, because you have to run again.”
Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), who has her own bipartisan energy plan with ranking member Maria Cantwell (D-Wash.) collecting dust on the Senate floor calendar, said the move is welcome.
“We’re doing the same and I think the more who do it kind of puts the spotlight on an issue that’s important to people around the country,” she said. “So why should we as Republicans be afraid to talk about the clean side of [energy]?”
John McCain, who is close with Graham and Ayotte and has in the past supported some climate change measures, said he wasn’t approached to be part of the working group. “But they know that my position on nuclear power is such that when nuclear power is left out of the equation, then it’s not serious in my view,” said McCain, referring to climate policy.
But McCain in some ways represents what the coalition is trying address: the move away from mainstream environmental positions by Republicans that has allowed Democrats to dominate the discussion and paint Republicans as anti-science.
Green groups cautiously welcomed the news of the working group, applauding the senators for trying to change the Republican approach to environmental issues, although they don't expect any tectonic shifts in the short term.
"Even with this progress, it seems we’re a ways off from being able to pass strong pro-environment legislation," said Tiernan Sittenfeld, the senior vice president for government affairs at the League of Conservation Voters. noting that even the four members of the new working group are divided over issues like President Barack Obama's climate regulations for power plants.
"Whether they’re going to be putting forward ambitious policy proposals remains to be seen, but it seems tough given where they are," she said.
Aides said the working group is focused first on starting a conversation, rather than putting forward legislation. The group's focus will become clearer in the coming weeks as they begin to map out their plans in a series of meetings.
Former Rep. Jim Gerlach (R-Pa.) suggested that the effort could produce “opportunities when another big bill comes to the floor in being able to have enough bipartisan support for something to be inserted in as an amendment.”
“It doesn’t have to be this huge environmental bill that this small number of legislators will come up with,” said Gerlach, who co-led a bipartisan land conservation caucus in the House with now-Sen. Chris Murphy (D-Conn.). “They’ll probably come up with more practical ways on different bills to do different things.”
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Senate Republicans Form Informal Environmental Caucus
Oct 30, 2015 | BNA Daily Environment Report
By Anthony Adragna
Four Senate Republicans have formed an informal group to prod their party toward developing a more concrete platform on how to protect the environment, address climate change and promote clean energy development.
Sens. Kelly Ayotte (N.H.), Lindsey Graham (S.C.), Mark Kirk (Ill.) and Lamar Alexander (Tenn.) will “meet periodically to discuss general energy and environmental issues and exchange ideas about potential legislation” as part of the informal caucus, known as the Senate Energy and Environment Working Group.
“The first step is really beginning a broader dialogue about these issues in the Republican conference, which is one of the goals of the working group,” Liz Johnson, a spokeswoman for Ayotte, said in a statement.
Among the initial topics of conversation will be energy efficiency and the Land and Water Conservation Fund, which uses oil and gas royalties for recreation and conservation projects, according to Johnson. There are ongoing efforts to grow the membership of the caucus, according to a statement.
Ayotte and Kirk face competitive reelection contests in 2016, and the New Hampshire Republican became the first senator to break from her party by endorsing the Obama administration's Clean Power Plan, which would regulate carbon dioxide emissions from power plants (207 DEN A-4, 10/27/15).
All four members of the informal caucus backed the scientific consensus from more than 97 percent of scientists that human activity significantly contributes to climate change. Sen. Susan Collins (R-Maine) was the only other Republican senator to vote that way as part of an amendment debate to legislation that would have approved the Keystone XL oil pipeline in January (14 DEN A-17, 1/22/15).
Some Republicans Frustrated on Climate Change
There have been signs that some Republicans are frustrated with their party's handling of environmental and climate change issues. Eleven House Republicans introduced a resolution (H. Res. 424) in September to promote “economically viable, and broadly supported private and public solutions to study and address” climate change.
Ayotte said she was frustrated that Congress only disapproved of actions coming from the Obama administration and didn't pursue solutions of its own.
“I think we are abdicating our responsibility, and we are missing an opportunity as we think about long-term energy policy for this country that will help our economy, that will protect our security, that will protect our environment,” Ayotte said at a forum in December 2014. “And that's only going to happen if all the stakeholders come together and we are actually willing to take these issues up in Congress, not just we disapprove of this.”
Senior Democrats Hails ‘Breakthrough.'
Sen. Dick Durbin (D-Ill.), the number two Democrat in the Senate, hailed the formation of the caucus as a “breakthrough” in the discussion on climate change.
“[Republicans] have these four at least open the door to conversation; that is an encouraging development,” Durbin told Bloomberg BNA Oct. 29. “I'm hoping that is the beginning of the effort. I know Senator Ayotte has expressed some interest in this, and Senator Kirk has voted along those lines in the past. But to have Senator Graham, Senator Alexander on board, I like the mix that comes [with] this.”
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