Preview Newsletter
ACC AM Nov 4
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Ruling Chides DuPont's Strategy in Toxic Leak Case
Nov 4, 2015 | BNA Daily Environment Report
By Steven M. Sellers
DuPont can't rely on a previously excluded government document to argue on appeal it had no reporting obligation under the Toxic Substances Control Act in a whistle-blower suit over toxic gas released at a company plant, the Middle District of Louisiana ruled Nov. 2 (United States ex rel. Simoneaux v. E.I. du Pont Nemours & Co... -
Group Criticizes CPSC Over Scuttled Synthetic Turf Review
Nov 3, 2015 | E&E News PM
By Sam Pearson
A watchdog group is crying foul after the Consumer Product Safety Commission confirmed recently it has halted an enforcement review of lead levels in synthetic turf products. Since 2013, CPSC's Office of Compliance and Field Operations had been reviewing whether synthetic turf should be regulated as a children's product. -
Asbestos Scare in Cannon Is a Reminder of Congress’ Failure to Act | Commentary
Nov 4, 2015 | Roll Call
By Linda Reinstein
On Oct.30, the Cannon House Office Building was evacuated for a potential asbestos leak and closed until further notice. The Architect of the Capitol confirmed that the potential release of asbestos occurred during construction as part of the Cannon Renewal Project. I can imagine the shock and fear of members of Congress... -
Chemical Companies Can Test Reporting Software
Nov 4, 2015 | BNA Daily Environment Report
Chemical manufacturers are invited by the Environmental Protection Agency to test the electronic software they must use to submit Chemical Data Reporting (CDR) rule submissions in 2016. Companies can participate through Nov. 20 in the beta tests of the 2016 CDR electronic reporting tool, the EPA announced Nov. 2. -
Top Five Reasons To Shop With EWG VERIFIED™
Nov 3, 2015 | Environmental Working Group
By Ashley McCormack
EWG’s Skin Deep®, launched in 2004, transformed the way you shop for personal care and cosmetics items. Two years ago, we introduced the Skin Deep® barcode scanning app to make shopping on-the-go even easier. Now we’re taking an even deeper dive to revolutionize the marketplace once again with EWG VERIFIEDTM. -
(ACC Mentioned) INSIGHT-Buffett's BNSF Helped Lead Fight To Delay Train Safety Technology
Nov 4, 2015 | Reuters
By David Morgan and Nick Carey
Nov 4 When an Amtrak passenger train derailed in Philadelphia in May, killing eight people and injuring scores more, the railroad industry's campaign to delay a Dec. 31 deadline to install technology to prevent such disasters appeared to be finished. Not, as it turned out, if billionaire investor Warren Buffett and Sen. John Thune... -
(ACC Mentioned) Threat To US Chemical Rail Transport Headed Off
Nov 4, 2015 | ChemistryWorld
By Rebecca Trager
When US rail freight companies threatened to shut down chemical shipments because they would be unable to implement new rail safety technology on time, the chemical industry sounded the alarm. Without an extension beyond the 31 December deadline, chemical transport by train across the US would likely have ended... -
(ACC Mentioned) 4 Things Kinder Morgan Inc. Wants You to Know About the Natural Gas Story
Nov 3, 2015 | The Motley Fool
By Matthew DiLallo
Kinder Morgan's (NYSE:KMI) founder Richard Kinder wanted to make one thing abundantly clear on its third-quarter conference call: Kinder Morgan is a natural gas story -- and that story is really good. Here are four things he wanted investors to know about that tale. -
Senators Float Bill To Stop Drilling On Public Lands
Nov 4, 2015 | E&E Daily News
By Amanda Reilly and Manuel Quiñones
Sens. Jeff Merkley (D-Ore.) and Bernie Sanders (I-Vt.) today plan to introduce climate change legislation aimed at dramatically reducing oil, gas and coal activities on public lands. The bill would stop new leases and the renewal of all nonproducing leases for fossil fuels on federal lands... -
Kansas Commission Extends Limits on Wastewater Injection
Nov 4, 2015 | BNA Daily Environment Report
By Christopher Brown
The Kansas Corporation Commission has extended limits on wastewater disposal in an area of increased seismic activity in south-central Kansas for an additional 180 days. The formal action in the form of an order by the commission on Oct. 29 took place about six weeks after KCC staff members recommended extending the limits... -
Texas Allows Operators to Keep Injection Well Permits
Nov 4, 2015 | BNA Daily Environment Report
By Nushin Huq
Commissioners at the Texas Railroad Commission voted unanimously during a public meeting Nov. 3 to adopt staff recommendations to allow two operators to keep their injection well permits despite a study linking the disposal wells to seismic activity in the area. -
TransCanada's Keystone Pause Calms Political Headache
Nov 4, 2015 | BNA Daily Environment Report
By Rebecca Penty, Robert Tuttle and Justin Sink
TransCanada Corp.’s request to pause a U.S. review of its Keystone XL oil pipeline gives President Barack Obama a way to ease a political headache at home and help him repair frayed relations with Canada. The Calgary-based company asked Secretary of State John Kerry in a letter on Nov. 2 to suspend the assessment of the $8-billion... -
Keystone's Hopes For White House Lifeline Dim
Nov 3, 2015 | PoliticoPro
By Elana Schor
A Canadian company's last-ditch attempt to buy time for its Keystone XL pipeline was sputtering Tuesday, with the White House showing every sign that President Barack Obama intends to bring the seven-year-long fight to a close on his own. Even without a final verdict yet from Obama on approving or rejecting... -
Keystone Delay Request ‘Unusual,' Earnest Says
Nov 4, 2015 | BNA Daily Environment Report
By Ari Natter
TransCanada Corp.'s request for a pause in the federal review of its Keystone XL pipeline “seems unusual,” White House Press Secretary Josh Earnest said during a press briefing Nov. 3. Earnest added the “current plan” remains for President Barack Obama to make a decision on the proposed pipeline before leaving office in January 2017. -
EPA Extends Comment Deadline on Methane Rules
Nov 4, 2015 | BNA Daily Environment Report
The Environmental Protection Agency is extending until Dec. 4 the deadline to comment on a package of rules intended to curb methane emissions from new oil and natural gas wells. The comment period originally closed Nov. 17. The EPA proposed the first new source performance standard for methane emissions from new oil and gas wells... -
House Subcommittee Moves to Kill EPA's Carbon Rules
Nov 4, 2015 | BNA Daily Environment Report
By Anthony Adragna and Andrew Childers
A sharply divided House Energy and Commerce Committee subpanel advanced two resolutions Nov. 3 that would nullify the centerpieces of President Barack Obama's efforts to combat climate change. The Energy and Power Subcommittee advanced one resolution (H.J. Res. 72) that would kill off the Clean Power Plan, which aims to ... -
23 States Seek To Block EPA Carbon Rule For New Plants
Nov 3, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
West Virginia today led 22 other states in suing over EPA’s carbon rule for new power plants, expanding its litigation into the second of the two power plant carbon rules published last month. The suit says only that the rule — which requires new coal-fired power plants to use partial carbon capture technology to limit their emissions... -
States Sue Over EPA Rule On New Power Plants
Nov 3, 2015 | The Hill - E2 Wire
By Devin Henry
Twenty-three states are suing the Environmental Protection Agency (EPA) over its emissions rules for new and modified power plants. The states, led by West Virginia Attorney General Patrick Morrisey, say the EPA exceeded its authority when issuing the rules, which look to cut down on carbon emissions from future power plants... -
House Panel Approves Climate Rule Resolutions
Nov 3, 2015 | The Hill - E2 Wire
By Devin Henry
A House committee on Tuesday approved two resolutions to overturn the Obama administration’s climate rule for power plants. The Congressional Review Act resolutions, sponsored by Rep. Ed Whitfield (R-Ky.), are meant to block the Clean Power Plan rule limiting carbon emissions from existing power plants and a similar rule for new plants... -
As ESPS Suit Begins, GOP Pushes Air Act Codification To Bolster Critics
Nov 3, 2015 | InsideEPA
By Lee Logan
Just as litigation over EPA's existing power plant greenhouse gas rule is beginning, House Republicans are pushing legislation to reorganize various environmental laws in the U.S. Code in an effort that would clarify competing versions of a key Clean Air Act section and bolster an interpretation offered by state and industry critics... -
One Effort to Kill Water Rule Fails; Another Likely to Pass
Nov 4, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Senate failed to take up legislation Nov. 3 that would force the Obama administration to redo a rule clarifying the scope of the Clean Water Act, but teed up a separate vote to outright kill the final rule that is expected to pass. More than half the chamber voted to move onto a resolution of disapproval (S.J. Res. 22) from Sen. Joni Ernst... -
White House Warns Of 'Confusion' From Senate Bills To Block CWA Rule
Nov 3, 2015 | InsideEPA
By Bridget DiCosmo
The White House is warning that two Senate bills to undo EPA's Clean Water Act (CWA) jurisdiction rule would create major regulatory “confusion” if they became law, though at press time senators blocked consideration of the first bill to revise the rule and EPA's critics might lack the 60 votes to approve the second measure to scrap the rule. -
Senate Set For Close Procedural Vote On Bill To Redo Clean Water Rule
Nov 3, 2015 | PoliticoPro
By Jenny Hopkinson
The Senate could move Tuesday to limit debate on proceeding to a bill that would force the EPA to scrap and reissue its Clean Water Rule, a move that supporters hope will set the stage for the measure to be added to upcoming appropriations legislation in a long-shot bid to avert a White House veto.
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Ruling Chides DuPont's Strategy in Toxic Leak Case
Nov 4, 2015 | BNA Daily Environment Report
By Steven M. Sellers
DuPont can't rely on a previously excluded government document to argue on appeal it had no reporting obligation under the Toxic Substances Control Act in a whistle-blower suit over toxic gas released at a company plant, the Middle District of Louisiana ruled Nov. 2 (United States ex rel. Simoneaux v. E.I. du Pont Nemours & Co., 2015 BL 360494, M.D. La., No. 12-cv-00219, 11/2/15).
The company argued the statement showed the Environmental Protection Agency had notice of the allegations in the lawsuit, relieving it of reporting obligations under TSCA, but the court said the move was “an attempt to embellish the record for appeal purposes” and a “thinly veiled attempt to ‘stack the deck' of the record.”
Jeffrey Simoneaux, a DuPont employee, claimed the company failed to properly report leaks of poisonous sulfur trioxide at a Louisiana plant, but the EPA declined to intervene in the False Claims Act case in 2012, according to the decision.
The government reversed course more than two years later and shortly before trial when it filed a “Statement of Interest” in the case, but that didn't justify its intervention so late in the case, the U.S. District Court for the Middle District of Louisiana ruled last year. The court also ruled last January that the EPA document was inadmissible in a jury trial of the matter.
The same result was required here, the court said, where DuPont again submitted the statement after a judgment in its favor was vacated by the court because of DuPont's failure to produce certain evidence about leak calculations at the site.
The company already had conceded that the government received no notice when Simoneaux's suit was filed in 2012, and needed extra time to review the sealed complaint, the court said. These facts refuted any argument that the EPA statement was probative of the timing of the government's knowledge of the alleged leaks, the court said.
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Group Criticizes CPSC Over Scuttled Synthetic Turf Review
Nov 3, 2015 | E&E News PM
By Sam Pearson
A watchdog group is crying foul after the Consumer Product Safety Commission confirmed recently it has halted an enforcement review of lead levels in synthetic turf products.
Since 2013, CPSC's Office of Compliance and Field Operations had been reviewing whether synthetic turf should be regulated as a children's product. Under that designation, it would have been subjected to a lower limit for lead content. Public Employees for Environmental Responsibility has argued that CPSC has ignored examples of synthetic turf products being marketed for use by children, including at playgrounds, that should qualify it for the designation under the Consumer Product Safety Improvement Act of 2008.
In a letter to Sen. Elizabeth Warren (D-Mass.) in July, CPSC Office of Legislative Affairs Director Jason Levine said CPSC wanted to determine the safety of artificial turf by using the resources of other federal agencies, rather than conducting its own health evaluation.
As a result, Levine wrote, staff determined that the review study "was unlikely to be the best option, based upon the need for individual health assessments, among other factors."
Levine added, "To my knowledge, this information has also been communicated to PEER."
Not so, the group countered, adding that CPSC is wrong to interpret the law as requiring individual health assessments.
"The Consumer Product Safety Commission has abandoned its legal duty to protect children on playgrounds from chemical exposure," Jeff Ruch, PEER's executive director, said in a statement. "Nor can we get a straight answer from the Commission about why it punted on playground lead limits and kept silent."
Levine wrote that by working with other federal agencies like U.S. EPA and the National Institutes of Health's National Institute of Environmental Health Sciences and National Toxicology Program, along with the Centers for Disease Control and Prevention's Agency for Toxic Substances and Disease Registry and the U.S. Food and Drug Administration, "We believe these questions can be answered more quickly than by any one agency alone."
CPSC spokesman Scott Wolfson declined to elaborate on Levine's letter.
During the Bush administration, CPSC publicly stated it was "safe" for children to play on artificial turf surfaces, but CPSC no longer believes it has sufficient information to make that claim, Levine wrote. He said that was "because of the small sample size involved in the study of the product."
CPSC didn't produce records showing how its technical staff determined that this claim lacked a scientific foundation, Ruch said.
After PEER said it was unable to confirm that CPSC was conducting an enforcement review, the group sued CPSC earlier this year seeking documents about the action.
The lawsuit, brought under the Freedom of Information Act, led to CPSC releasing email records that PEER said showed agency staffers were confused about synthetic turf and over-reliant on an industry group, the Synthetic Turf Council, for crucial safety information (Greenwire, April 29).
The records released included correspondence between agency staffers and the industry group, including a message from Levine offering the trade group's studies as "the best single source" of research to be used to respond to congressional inquiries.
Public concern over the safety of synthetic turf fields has grown since an "NBC Nightly News" report last year aired the health concerns of ex-student athletes, who feared they had developed illnesses from their exposure to synthetic turf fields. Rep. Frank Pallone (D-N.J.), the ranking member of the House Energy and Commerce Committee, has called for congressional hearings on the products (Greenwire, Oct. 2).
In California, state regulators are launching their own inquiry into the issue. California's Office of Environmental Health Hazard Assessment, part of the California EPA, plans to hold three public workshops later this month, along with a webinar, to discuss new safety studies of synthetic turf the agency is performing this year under a contract with the state Department of Resources Recycling and Recovery.
A spokesman for the Synthetic Turf Council didn't respond to a request for comment today. However, the group has previously defended the safety of artificial turf products.
Previous research "provides confidence that there is no elevated human health or environmental risk from the ingestion, inhalation or dermal contact with synthetic turf," Terrie Ward, the marketing and educational director at the Synthetic Turf Council, said earlier this year.
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Asbestos Scare in Cannon Is a Reminder of Congress’ Failure to Act | Commentary
Nov 4, 2015 | Roll Call
By Linda Reinstein
On Oct.30, the Cannon House Office Building was evacuated for a potential asbestos leak and closed until further notice. The Architect of the Capitol confirmed that the potential release of asbestos occurred during construction as part of the Cannon Renewal Project. I can imagine the shock and fear of members of Congress, their staff, and AOC employees upon learning that this invisible killer had surrounded them in their workplace. Ironically, many of these same members of Congress have repeatedly opposed efforts to ban asbestos and ushered through legislation that would let the asbestos industry off the hook for the deaths and disease caused by this substance.
Don’t be fooled; Oct. 30 was not the first time asbestos has plagued Congress. In July 2014, an asbestos incident occurred during asbestos abatement work temporarily closed the House side of the Capitol.
Although many people — perhaps even Congress — mistakenly believe asbestos is a declining threat, the recent asbestos closure should serve as a sobering reminder that this man-made disaster continues to plague unsuspecting Americans, and deserves immediate congressional action to protect the public. Like many families, mine was blissfully ignorant about asbestos diseases, wrongly assuming that if the government did not limit or ban a substance, it must be safe. Then in 2003, my husband Alan was diagnosed with mesothelioma. Because this cancer is almost always fatal, the available surgical treatments amounted to nothing more than death by one thousand cuts, all in hopes for more time with us. My daughter and I were forced to watch Alan whither from a vibrant man to a frail asbestos victim gasping for air.
Since Alan was diagnosed, countless bills to ban asbestos have been introduced, but all have failed. What’s worse, the asbestos industry has been able to bamboozle Congress to draft legislation that reduces liability, accountability and transparency with the so-called Fairness in Asbestos Injury Resolution Act and Furthering Asbestos Claim Transparency Act — and that’s only part of the harrowing story.
The asbestos industry has known for more than 100 years that asbestos causes mesothelioma and other lung, gastrointestinal, laryngeal and ovarian cancers, as well as non-malignant lung and respiratory diseases. However, since 1900, more than 31 million metric tons of asbestos have been used in buildings and consumer products, and can still be found in our homes, schools, workplaces and even the toys our children play with. In fact, the U.S. Geological Survey reported that in 2015 alone, the United States consumed 400 metric tons of asbestos. The reason? To meet “manufacturing needs” — even when safer substitutes exist.
Congressional inaction leaves Americans at risk in homes, schools, and workplaces throughout the nation as up to 15,000 people die yearly from preventable asbestos-caused diseases.
In 2013, the recent National Institute for Occupational Safety and Health study of three cohorts in San Francisco, Chicago and Philadelphia gave us new data. As reported, “The population of firefighters in the study had a rate of mesothelioma two times greater than the rate in the U.S. population as a whole.”
But there’s more. The Global Burden of Disease, Injuries, and Risk Factor Study from the prestigious Lancet medical journal, found occupational asbestos exposure to be responsible for 194,000 deaths in 2013. The new numbers represent a more than 80 percent increase from the 107,000 per annum statistic from the World Health Organization. Despite this, the toxin is still legal — and lethal — in the United States thanks to congressional inaction, willful blindness, and corporate malfeasance.
The Toxic Substances Control Act of 1976 provided the Environmental Protection Agency with the authority to require reporting, record keeping and testing along with restrictions related to chemical substances and/or mixtures. In 1989, the EPA issued a final rule under Section 6 of TSCA banning most asbestos-containing products. However, in 1991, this rule was vacated and remanded by the Fifth Circuit Court of Appeals. As a result, most of the original bans on the manufacture, importation, processing, or distribution in commerce for the majority of the asbestos-containing products originally covered in the 1989 final rule were overturned.
While the Senate and House continue efforts to reform TSCA, neither the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S 697) nor the House of Representatives TSCA Modernization Act (HR 2576) provide for expedited action for asbestos.
The time is now to empower and ensure the EPA can finally ban asbestos and end the deadly asbestos man-made disaster.
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Chemical Companies Can Test Reporting Software
Nov 4, 2015 | BNA Daily Environment Report
Chemical manufacturers are invited by the Environmental Protection Agency to test the electronic software they must use to submit Chemical Data Reporting (CDR) rule submissions in 2016. Companies can participate through Nov. 20 in the beta tests of the 2016 CDR electronic reporting tool, the EPA announced Nov. 2. The CDR rule requires chemical manufacturers and importers to submit production volume and other information from June 1 to Sept. 30, 2016. During an Oct. 14 webinar EPA staff offered tips on using the software (199 DEN A-10, 10/15/15). EPA's webinar presentation is available at http://www2.epa.gov/chemical-data-reporting/e-cdrweb-2016-epa-overview-and-demonstration. Chemical manufacturers wanting to test the software should e-mail eTSCAReporting@epa.gov. EPA's announcement is available at http://www2.epa.gov/chemical-data-reporting/how-report-under-chemical-data-reporting#beta.
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Top Five Reasons To Shop With EWG VERIFIED™
Nov 3, 2015 | Environmental Working Group
By Ashley McCormack
EWG’s Skin Deep®, launched in 2004, transformed the way you shop for personal care and cosmetics items. Two years ago, we introduced the Skin Deep® barcode scanning app to make shopping on-the-go even easier.
Now we’re taking an even deeper dive to revolutionize the marketplace once again with EWG VERIFIEDTM. The new EWG verification mark is designed to help you identify healthier products, right at the point of purchase.
Only items that meet our strict standards can display the EWG VERIFIEDTM mark on their packages or online sites.
Why should you look for the EWG VERIFIEDTM mark the next time you shop?
1. It empowers you to make healthier choices. The government hardly regulates cosmetics. To pick healthier products, you can scan ingredient labels and learn hundreds of ingredient names and potential exposure hazards, as our EWG scientists have done. Or you can do it the easy way and look for the EWG VERIFIEDTM mark while you’re shopping – online or in stores, knowing EWG did the research for you.
2. It ensures products fully disclose all ingredients so you know exactly what you’re getting. You can rest easier knowing that every ingredient meets our stringent criteria– and that you know each and every ingredient in the bottle. EWG VERIFIEDTM prevents companies from hiding potentially harmful ingredients behind terms like “fragrance.”
3. It holds cosmetics makers to an even higher standard than Skin Deep. Items with the EWG VERIFIEDTM mark must score a “green” rating in EWG’s Skin Deep®, be free of substances on our “unacceptable” list and meet limits outlined in our “restricted” list. They must also fully disclose all ingredients and follow good manufacturing practices.
4. It is convenient. You probably already know that many common ingredients in personal care products may not be good for your health. But who wants to stand in an aisle and squint at labels? The EWG VERIFIEDTM mark gives you a fast way to spot healthier items.
5. It will move the market. By giving people more information, we’ve helped change their shopping habits. More and more cosmetics companies have responded with healthier offerings. Together, we can put pressure on cosmetic makers to reformulate products with chemicals that don’t threaten our health.
While personal care aisles are still filled with items that contain harmful or potentially harmful ingredients, they are moving in the right direction. Ultimately we hope to expand EWG VERIFIEDTM to other important categories – such as household cleaners and food so we can continue to push the market and guide you as you shop, in the personal care aisle and beyond, showing you which items have met our mark for your health.
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(ACC Mentioned) INSIGHT-Buffett's BNSF Helped Lead Fight To Delay Train Safety Technology
Nov 4, 2015 | Reuters
By David Morgan and Nick Carey
Nov 4 When an Amtrak passenger train derailed in Philadelphia in May, killing eight people and injuring scores more, the railroad industry's campaign to delay a Dec. 31 deadline to install technology to prevent such disasters appeared to be finished.
Not, as it turned out, if billionaire investor Warren Buffett and Sen. John Thune, a South Dakota Republican, had anything to do with it. Thune chairs the Senate Commerce Committee, which oversees the rail industry.
Last week, under pressure from companies including Buffett's BNSF Railway Co, which has spent more money lobbying Congress this year than any other railroad, U.S. legislators passed, and President Obama signed, a law that delays the so-called positive train control mandate for at least three years, with the possibility of an additional two-year delay.
That means railroad operators can put off having to buy and install equipment that safety advocates say would have prevented accidents that have claimed more than 245 lives and caused over 4,200 injuries since the National Transportation Safety Board began calling for the technology in 1969.
Railroad advocates presented a blunt argument: Unless the mandate to install positive train control technology was delayed, the railroads would attempt to cripple the economy. Railroads that missed the deadline to install systems that automatically slow or stop a train under dangerous circumstances claimed that they would face heightened liabilities by operating outside of federal law, and that therefore they would decline to carry passengers, including commuters. They wouldn't deliver commodities that are classified as hazardous, but are also vital to the economy - including chemicals like chlorine and ammonia needed to run city water treatment plants, refine oil and keep farms and factories running.
BNSF, at $3.9 million, was the biggest spender among individual rail operators as railroads and allies including unions and regional transit authorities spent almost $25 million lobbying Congress on PTC and other issues, according to Senate documents.
BNSF, along with Norfolk Southern Corp and Canadian Pacific Railway, referred questions for comment to the Association of American Railroads.
"We commend Congress for passing the extension," said AAR spokesman Ed Greenburg. "We have been warning for years that the deadline was unworkable because the technology had to be developed from scratch." Railroads have spent $6 billion on PTC up to now and expect to spend another $4 billion before implementation is complete, according to the AAR.
Opponents of the deal, including Senators Diane Feinstein of California, Chuck Schumer of New York, Ed Markey of Massachusetts and Richard Blumenthal of Connecticut, all Democrats, found themselves outmaneuvered by the rail industry, aided by Thune and a regulator's favorable interpretation of an obscure law.
"It is entirely inappropriate that the railroad industry would make hostages of America's passenger rail services and chemical shippers in order to secure their favored legislative outcome," Feinstein said in a statement for the Congressional Record. "It is offensive that only when a railroad could face full liability for an accident that they find operation without PTC to be unacceptably dangerous."
LOBBYING
Lobbying by shippers and other interests, including the U.S. Chamber of Commerce, drove total spending to almost $113 million over the course of the year. Records show that lobby spending jumped from about $18.5 million in the first quarter to $70 million in the third quarter as the push intensified.
Thune said he realized early on that the New Year's Eve deadline could have dire consequences for the economy and for railroads, which were reporting problems with positive train control systems.
But after May's Amtrak disaster, "when they announced that this could have been prevented if they'd had positive train control, there was a real spotlight on why we weren't there and what we could do to get there faster," Thune told Reuters in an interview.
Meanwhile, the railroads were hampered by anti-trust considerations that prohibited operators from talking directly with each other to launch a collaborative effort.
That changed in August after Thune sent letters to the regulatory Surface Transportation Board and individual railroads asking what would happen if the PTC deadline was not extended. His committee then publicized their responses.
"That was sort of the seminal moment," Thune said. Now the railroads had a channel for their views.
Then on Sept. 3, Surface Transportation Board Chairman Daniel Elliott wrote a letter to Thune stating that railroads could be exempt from their federal obligation to provide service to shippers due to issues involving safety. [ID: nL1N11D0EN] The board is an economic regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers.
Less than a week later, major U.S. and Canadian railroads including BNSF, Norfolk Southern and Canadian Pacific began informing Thune that Congress' failure to act on a PTC extension would lead to crippling disruptions for shippers and rail passengers beginning Jan. 1. [ID: nL1N11F2T1]
"Everybody thought they were hyping this or overreacting," Thune said. Then letters started coming in from shippers, farmers and cities alarmed by the potential disruptions. Railroad executives also raised the issue in quarterly calls with investors.
Soon, members of Congress were hearing from a host of industries -- automakers, oil companies, high-tech firms, farmers, water treatment facilities and even the makers of bullet-proof vests. The American Chemistry Council, the National Association of Manufacturers and the U.S. Chamber of Commerce weighed in on the railroads' behalf.
Household names and giant employers including Exxon Mobil, Chevron, Cisco Systems, General Electric, Cargill Inc and Land O' Lakes joined the fray.
"I started having members coming up to me and saying, What are we going to do about this and how are we going to fix this? Democrats and Republicans," Thune said.
That left it to four members of Congress - all of them big beneficiaries of rail industry campaign contributions - to work out a deal that could win bipartisan support in both the Senate and the House of Representatives. They then pushed to attach it to a must-pass short-term extension to the Highway Trust Fund.
The four were Thune and the Senate Commerce Committee's top Democrat Bill Nelson of Florida, the House Transportation Committee's Republican chairman Bill Shuster of Pennsylvania and that panel's top Democrat, Peter DeFazio of Oregon.
Together, the four have received $1.2 million rail industry campaign contributions during their Capitol Hill careers, with about two-thirds of that sum going to the two Republicans, according to the nonpartisan Center for Responsive Politics.
The measure passed both chambers on simple voice votes that meant individual lawmakers didn't have their positions recorded. Supporters said that showed near universal support for the measure.
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(ACC Mentioned) Threat To US Chemical Rail Transport Headed Off
Nov 4, 2015 | ChemistryWorld
By Rebecca Trager
When US rail freight companies threatened to shut down chemical shipments because they would be unable to implement new rail safety technology on time, the chemical industry sounded the alarm. Without an extension beyond the 31 December deadline, chemical transport by train across the US would likely have ended on much of the nation’s rail network in January 2016. But the immediate danger of such a calamity appears over.
President Obama signed a highway bill on 29 October that provides passenger and freight railroads with three more years to install an automated speed regulating system known as positive train control (PTC), which would prevent collisions.
Had the PTC deadline not been postponed, rail companies would have faced significant liability if they kept operating past the end of this year, including for any accidents occurring with trains transporting toxic inhalation hazard (TIH) materials. TIH chemicals include chlorine, anhydrous ammonia and hydrogen fluoride, which are all used in both consumer and industrial goods and processes.
The PTC extension pushes the required date for implementation to 31 December 2018. The new law also allows for an additional two-year extension if certain benchmarks are met.
‘It means we no longer have to worry about a regulator induced shut down of freight rail service,’ says Scott Jensen, a spokesperson for the American Chemistry Council (ACC). ‘The regulatory issue has been resolved for now.’
Bill Allmond, with the Society of Chemical Manufacturers and Affiliates, notes that speciality chemical companies rely on rail shipments of raw materials to their manufacturing facilities or to their suppliers’ facilities. Movement of some chemicals requires rail shipment and so there was no alternative for those products, he says. ‘Given the enormity of the crisis that would have ensued all across the economy if rail shipments ceased, Congress made the right decision to extend the deadline by three years,’ Allmond tells Chemistry World.
The National Association of Chemical Distributors (NACD) also says the inability to move TIH materials would have been disastrous for its members. While NACD members represent the ‘immediate downstream customer’, there would have been problems for its members’ customer bases, including utilities, pharmaceutical companies, metal processing, industrial refrigeration and water treatment facilities, according to the organisation’s legislative affairs director, Laura Chambers.
The Association of American Railroads’ president and chief executive, Edward Hamberger, said freight and passenger railroads can now push on with the development, installation and testing of the ‘complex’ PTC technology. However, most rail firms estimate that it will take about one to five years for them to implement PTC, according to a congressional Government Accountability Office (GAO) report released in September.
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(ACC Mentioned) 4 Things Kinder Morgan Inc. Wants You to Know About the Natural Gas Story
Nov 3, 2015 | The Motley Fool
By Matthew DiLallo
Kinder Morgan's (NYSE:KMI) founder Richard Kinder wanted to make one thing abundantly clear on its third-quarter conference call: Kinder Morgan is a natural gas story -- and that story is really good. Here are four things he wanted investors to know about that tale.
Kinder Morgan and natural gas
Kinder led off his comments by saying:I want to give you some hard cold facts about the natural gas story, which is our single most important business. As many of you know our natural gas operations produce over half of our cash flow and we move about a third of all the gas consumed in the United States. So, to put it very simplistically as natural gas demand grows, so do we.
While Kinder Morgan is a diversified midstream company, its core business is natural gas pipelines, which Kinder noted produces half its cash flow. Because of this, natural gas is important to the company's current operations as well as its future.
Kinder then laid out the bull case for natural gas, using projections from respected industry research firm Wood Mackenzie. He said:
If you compare 2014 to 2015 Wood Mackenzie is now estimating there will be an increase in demand year-to-year of 5%. Its projected increase from today's level of 76 Bcf a day to about 110 Bcf a day by 2025, that's an increase of 40%.
This demand growth isn't a pipe dream because there are four major drivers fueling that growth, which are detailed on the slide below.
1. It's electric
Kinder continued by saying:The first and probably the most interesting is electric generation. If you look at the 2015 mix of generating output -- and this is according to the EIA -- 32% is gas and 33% coal ... [and this] represents a dramatic shift to the positive for natural gas. If you flash ahead again -- these are EIA numbers -- to 2030 their projection of the mix of generation is 39% gas, 18% coal. ... If you want to look at Kinder Morgan specifically our gas transportation volumes for electric generation are up 18% year-to-date 2015 versus the same period 2014. ... So these are real numbers, real occurrences that are happening in the natural gas story.
Kinder first points out the fundamental shift away from coal and toward cleaner-burning natural gas. It's a shift that has significantly affected the coal industry with a number of producers in, or on the brink of, bankruptcy. Coal producer Peabody Energy (NYSE:BTU) is one of those in the brink. One reason for this is because demand for coal by utilities continues to sink. Peabody Energy noted in its third-quarter report that it "now projects utility coal demand to decline approximately 100 million tons in 2015, primarily due to lower natural gas prices" with gas pushing down coal's share of electric generation. Worse yet, Peabody Energy "expects 2016 utility coal consumption to be below 2015 levels based on current natural gas prices and expected plant closures." That said, Peabody's loss is Kinder Morgan's gain because it is building a number of pipelines to support additional gas demand by utilities.
2. Viva la Mexico
The natural gas story, however, extends far beyond its market share battle with coal in the U.S. Kinder noted:The second demand driver is natural gas exports to Mexico. It's real and it's growing. Let me give you the facts. Natural gas exports to Mexico for 2015 are expected to average 2.6 Bcf a day versus a 2014 average of 1.8 Bcf a day. That's an increase of 44%. This summer we found that natural gas exports had at times exceeded 3 Bcf a day. Over the next four years, Mexico is expected to add 10.5 gigawatts of new natural gas capacity and it's expected that another 3.2 gigawatts of oil power capacity will switch to natural gas. Meanwhile as I think most of us know, Mexico's gas production continues into decline.
Kinder points out that an increasing amount of U.S. natural gas is making its way into Mexico for two reasons. First, like the U.S., Mexico is building more natural gas power plants, which is increasing its demand for gas. However, it's increasing its demand at a time when production in the country is declining, which has opened up a number of opportunities for Kinder Morgan to expand its pipelines to export gas to Mexico, including a $38 million expansion to its Mier-Monterrey pipeline.
3. The chemical reaction
Next, Kinder noted:Third driver is the tremendous build-out of US industrial and petrochemical facilities. Let me give you the facts. The American Chemistry Council now counts 243 projects with a cumulative investment of $147 billion for the years 2010 to 2023.
Cheap natural gas is fueling an unprecedented amount of industrial and petrochemical expansion projects in the U.S. because these facilities are large consumers of natural gas. That's great news for Kinder Morgan because these facilities will need to be connected to the natural gas supply network, with Kinder Morgan benefiting from the potential to build pipelines to directly supply these new plants.
4. LNG is coming
Kinder concluded with:Finally let's talk about LNG exports. These are no longer years away. FERC approved LNG export projects have 10.6 Bcf a day of capacity. By the end of this year Sabine Pass Train 1 will be in service with 650 million a day of capacity. By next year with Sabine Pass Trains 1 through 3 online LNG capacity will be 1.95 Bcf a day. By 2019 U.S. LNG export capacity will be 8.97 Bcf a day only counting FERC approved projects which have achieved final investment decision.
Kinder notes that the first of many LNG export facilities are expected to come online later this year when Cheniere Energy's (NYSEMKT:LNG) Sabine Pass offloads its first natural gas cargos. These projects directly benefit Kinder Morgan, which earlier this year signed a 20-year deal with Cheniere Energy to supply gas for its Corpus Christi facility. Kinder Morgan is investing $212 million to expand its facilities to support this agreement with Cheniere Energy.
Investor takeaway
If there's one thing Richard Kinder wanted to make abundantly clear on the company's third quarter conference call it is the fact that the natural gas story is real. Further, there are four drivers of that story, all of which have huge growth potential for the company both in the near and long term. This is why Kinder Morgan believes its best days appear to be ahead of it.What Tim Cook Didn't Tell You
The world's biggest tech company forgot to show you something, but a few Wall Street analysts and the Fool didn't miss a beat: There's a small company that's powering their brand-new gadgets and the coming revolution in technology. And we think its stock price has nearly unlimited room to run for early-in-the-know investors! To be one of them, just click here. -
Senators Float Bill To Stop Drilling On Public Lands
Nov 4, 2015 | E&E Daily News
By Amanda Reilly and Manuel Quiñones
Sens. Jeff Merkley (D-Ore.) and Bernie Sanders (I-Vt.) today plan to introduce climate change legislation aimed at dramatically reducing oil, gas and coal activities on public lands.
The bill would stop new leases and the renewal of all nonproducing leases for fossil fuels on federal lands. It would also put a halt to leasing activities for offshore drilling in the Pacific Ocean and Gulf of Mexico and block offshore drilling in the Arctic and Atlantic.
Merkley called the legislation the first step in a new "keep-it-in-the-ground" movement to build public opposition to leasing activities on public lands.
"This bill is about recognizing that the fossil fuel reserves that are on our public lands should be managed in the public interest," Merkley told a small group of reporters at a briefing yesterday. "And the public interest is for us to help drive a transition from fossil fuels to a clean-energy future."
Environmentalists are lauding the bill as "landmark climate change legislation." The senators will unveil the measure today at a noon press conference on Capitol Hill featuring environmental activists, including 350.org co-founder Bill McKibben.
Merkley and other Democratic lawmakers have supported legislation and proposed Obama administration reforms to ensure companies are paying their fair share for coal leases. They have also pushed for more accounting of climate impacts (Greenwire, Nov. 2).
Industry groups like the National Mining Association have responded by saying that restrictions on production would simply reduce federal revenues.
Neal Kirby, spokesman for the Independent Petroleum Association of America, suggested the legislation would stifle economic growth, job creation and government revenues.
"When the U.S. oil and natural gas industry thrives, America succeeds," Kirby said. "The work of America's independent producers have generated an energy renaissance in our country, spurring economic growth in small towns and local communities across the nation, helping lower energy costs and keeping more spending money in American families pockets."
Merkley said it's time to move away from such a debate. He said lawmakers needed to see leasing reform "not as a way to build revenue for the government but in fact to address the global challenge of global warming."
Currently, 10 percent of the world's fossil fuel reserves are located on the nation's public lands, Merkley said, charging that new leasing activities on federal lands "lock in" fossil fuel extraction for decades.
The bill would lower the oil, gas and coal sectors' carbon dioxide emissions on public lands by more than 90 percent, according to Merkley's office.
Fossil fuel defenders often cite the need to promote a variety of energy sources, the drawbacks of relying only on renewables, and efforts at making burning coal, gas or oil cleaner.
Kirby also pointed to polls showing support among Americans -- both Democrats and Republicans -- for fossil fuel production.
"In a nation rich with abundant, affordable energy resources and responsible environmental protections already in place," Kirby aid, "any national anti-fossil fuels campaign will go nowhere with American voters."
But Merkley, citing the urgency of climate action, said, "We cannot afford to extract and burn more than 20 percent of the identified fossil fuel reserves in the world. The public interest is for us to help drive a transition."
He acknowledged that the legislation would likely not pass the current Republican-controlled Congress. But he said he hoped the bill would open discussions on Capitol Hill and become part of the debate in upcoming elections.
"I certainly don't anticipate that we have a chair of energy and natural resources on either side of Capitol Hill ... that is going to hold hearings or a markup on this bill," Merkley said, "but this gives a rallying point for the grass roots to get engaged as they've gotten engaged in the Keystone pipeline, as they got engaged on the Arctic."
McKibben pointed to what he called the "capitulation" by TransCanada Corp. on KXL. The company this week asked the Obama administration to halt its review process for the pipeline pending action in Nebraska.
McKibben also said the environmental movement's passion against Arctic drilling would follow other projects. "It will be just as strong as it was in the Arctic when the question turns to the Atlantic," he said.
McKibben yesterday called public lands "one of the easiest" places to curb the flow of carbon dioxide to the atmosphere. He compared the legislation to efforts to preserve rainforests in Brazil, arguing that both rainforests and fossil fuels should be left in place.
Merkley coupled the proposal to the Obama administration's Clean Power Plan to reduce carbon emissions from power plants, which he said would help reduce demand for fossil fuels.
Echoing Merkley, McKibben said he expected environmental groups to rally around the bill. "This will push the debate closer to where it needs to go," McKibben said.
"And that debate is evolving way, way faster than anyone thought," he added. "Remember, it was only three years ago in the last presidential election that neither of the candidates even mentioned climate change for months upon months upon months."
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Kansas Commission Extends Limits on Wastewater Injection
Nov 4, 2015 | BNA Daily Environment Report
By Christopher Brown
The Kansas Corporation Commission has extended limits on wastewater disposal in an area of increased seismic activity in south-central Kansas for an additional 180 days.
The formal action in the form of an order by the commission on Oct. 29 took place about six weeks after KCC staff members recommended extending the limits, which first took effect in March 2015 (65 DEN A-2, 4/6/15)(175 DEN A-11, 9/10/15).
But the commission has not yet determined whether reduced seismic activity that has been observed since March was the result of the disposal limits, or by other factors, according to Samir Arif, a KCC spokesman.
“We're hoping that further study will help us clarify whether reduced injection pumping has caused the reduction in earthquake number and intensity that we've seen, or whether there are other causes,” Arif told Bloomberg BNA Nov. 3. The area is where wastewater produced during hydraulic fracturing has been disposed underground.
Increased Seismic Activity
The KCC action concerns a two-county area of south-central Kansas that has experienced a dramatic increase in seismic activity in the past two years. Overall, the number of earthquakes in Kansas increased from four in 2013 to 127 in 2014, according to information provided by KCC.
In the first 10 weeks of 2015, there were an additional 51. The majority of these earthquakes took place in Harper and Sumner counties, located on the Oklahoma border around 260 miles southwest of Kansas City, Kan. Those counties also have been one of the most important areas in Kansas for the disposal of fracking wastewater.
In response to the increase, a task force set up in early 2014 by Gov. Sam Brownback (R) recommended improved monitoring of seismic activity and the use of a new scoring system to evaluate earthquakes. In addition, KCC issued its March 2015 order limiting wastewater injection rates at more than 70 disposal wells in Harper and Sumner counties.
In the 180 days before the limits were put in place, there were 133 earthquakes in the two counties, 44 of which were magnitude 3.0 or greater, KCC said. In the 180 days after the limits were put in place, there were 85 earthquakes in the two counties, 23 of which were magnitude 3.0 or greater, KCC said.
But while the downward trend in earthquake frequency and intensity is encouraging, the numbers must be evaluated cautiously, Arif said.
“The scientists are still very reluctant to say that this downward trend has been caused by the limits we put in place,” he said. “It's important to note that the earthquake trend has also followed a downward trend in oil prices, which has resulted in a drop in oil production that also could be related to the seismic trends we are seeing.”
The area of Kansas that has shown the greatest increase in seismic activity also is geologically connected to areas of Oklahoma that also have been the site of wastewater-injection activity, Arif said. “There could be things going on across the border that are affecting Harper and Sumner Counties,” he said.
The KCC order will remain in effect through March 13, 2016.
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Texas Allows Operators to Keep Injection Well Permits
Nov 4, 2015 | BNA Daily Environment Report
By Nushin Huq
Commissioners at the Texas Railroad Commission voted unanimously during a public meeting Nov. 3 to adopt staff recommendations to allow two operators to keep their injection well permits despite a study linking the disposal wells to seismic activity in the area.
“The causal factor study presents data indicating a weak, temporal correlation between injection and seismic activities,” Paul Dubois, commission technical examiner, told commissioners during the meeting. “Too small, however, to imply a causal relationship without further corroborating evidence.”
The commission examined EnerVest's Briar Lease Well No. 1 in Wise County and XTO Energy Inc.’s West Lake SWD No. 1 in Parker County in a show-cause proceeding.
The proceedings were initiated in April after the journal Nature Communication published a study by a seismology team from Southern Methodist University that found a combination of gas fluid injection and removal is the most likely cause of earthquakes that occurred in Azle, Texas, at the end of 2013 and the beginning of 2014 (177 DEN A-16, 9/14/15)
“I support the work you guys did, and I agree with your findings,” Ryan Sitton, one of the three commissioners, told Dubois during the meetings. “A lot of people have questions about this, even in places like Irving, where there's no oil and gas activity in proximity. We have a chance to lead on this.”
Surface Mining Fees
The commissioners also unanimously approved staff's proposed amendments to 16 Texas Administrative Code Section 12.108 relating to permit fees related to coal mining.
The proposed amendments are the result of a legislative rider passed in House Bill 1 by lawmakers in May. Railroad Commission Rider 5 requires the amounts appropriated from general revenue for fiscal years 2016 and 2017 to cover the costs of permitting and inspecting coal mining facilities.
The amendments eliminate the current annual mined acreage fee of $84 per acre, increase the current annual bonded acreage fee from $12 to $13.05 per bonded acre and increase the current annual permit fee from $6,540 to $6,600 per permit.
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TransCanada's Keystone Pause Calms Political Headache
Nov 4, 2015 | BNA Daily Environment Report
By Rebecca Penty, Robert Tuttle and Justin Sink
TransCanada Corp.’s request to pause a U.S. review of its Keystone XL oil pipeline gives President Barack Obama a way to ease a political headache at home and help him repair frayed relations with Canada.
The Calgary-based company asked Secretary of State John Kerry in a letter on Nov. 2 to suspend the assessment of the $8-billion project, arguing it would allow the department to await the results of a separate review in Nebraska. Obama has been critical of Keystone XL, which has been under U.S. review for seven years.
“If you think you're going to get a ‘no,’ it may be better to wait,” Kevin Book, managing director at energy policy advisory Clearview Energy Partners LLC in Washington, said. “The surprise is that it's the sponsor itself that seems to be pushing for the delay, rather than the administration seeking to avoid a politically difficult decision.”
Keystone XL has been one of the most contentious energy issues of Obama's presidency, dividing Democratic constituencies ahead of the presidential election, and the request gives him a reason to punt a ruling to the next administration. A suspension of the review would allow Obama to reset the relationship with Justin Trudeau, who will take office as Canada's prime minister this week.
Future Decision
“It gives the two of them space to discuss other things,” said Julian Zelizer, a professor of history and public affairs at Princeton University. “Any decision in the future, politicians usually prefer.”
While Trudeau favors the pipeline, he has said rebuilding ties with the U.S. is a top foreign policy priority. Trudeau, who is expected to meet Obama in November at a Group of 20 summit in Turkey, has emphasized the need for Canada to boost its environmental performance to win favor for pipeline proposals including Keystone. Supporters of the pipeline have argued it would create jobs, while environmentalists and top Democratic donors say it would encourage development of the oil sands, exacerbating climate change.
TransCanada would have a better shot at approval under a Republican president, Book said. Democratic candidate Hillary Clinton has said the pipeline should be rejected.
The U.S. State Department is reviewing the TransCanada letter, Pooja Jhunjhunwala, a spokeswoman, said in an e-mail. White House spokesman Josh Earnest declined to comment, saying the letter was addressed to the State Department. A spokesman for Trudeau, Cameron Ahmad, said in an e-mail late Nov. 2 that the Liberal leader didn't have any comment at that time.
Nebraska Review
TransCanada decided in September to apply for an additional regulatory review of the line in Nebraska and back off from conflicts with landowners. Suspending the federal process would let the State Department make a decision based on the pipeline's final route in the state, TransCanada told Kerry Nov. 2, according to a copy of a letter e-mailed by the company. The company is focused on showing the U.S. benefits of the project, said Mark Cooper, a spokesman.
“We've said from the outset that our focus isn't on the various political machinations on what the President may or may not do,” Cooper said.
Gulf Refineries
Keystone XL would span 1,179 miles (1,897 kilometers) from Alberta through three states—Montana, North Dakota and Nebraska—before connecting to an existing pipeline network feeding crude to U.S. Gulf Coast refineries. The line would carry as much as 830,000 barrels of oil a day, including some from North Dakota's Bakken shale.
“Canadian producers are going to have to find other ways to ship out crude than going through Keystone,” said Carl Larry, head of oil and gas for Frost & Sullivan LP in Houston. Canada “is realizing the U.S. isn't going to be helpful in pushing Keystone.”
Energy producers aren't as desperate for pipeline space after shelving a spate of oil-sands projects to conserve cash, amid the worst oil-price slump in decades.
No Need
“At this point in time there is not a need for it now or in the next three years really,” said John Auers, executive vice president at Turner Mason & Co., an energy consulting firm in Dallas. “It's certainly possible TransCanada realizes that and they are taking their time.”
Canadian oil producers have also backed other pipeline projects and are moving more crude on trains. Kinder Morgan Inc. has a plan to almost triple the capacity of its existing Trans Mountain line to the Pacific and TransCanada's Energy East line will transport as much as 1.1 million barrels a day from Alberta to the Atlantic, if approved and built.
Environmental groups characterized TransCanada's request as a triumph while suggesting that Obama still shouldn't hesitate to deny a permit.
“While this is a victory of opponents of Keystone, this doesn't take the onus away from the President to reject the pipeline,” said Anthony Swift, Canada project director for the Washington-based National Resources Defense Council. “The company can withdraw the permit application but it does not have the power to suspend the administration's decision process.”
—With assistance from Brian Wingfield in Washington, Josh Wingrove in Ottawa and Jeremy van Loon in Calgary.
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Keystone's Hopes For White House Lifeline Dim
Nov 3, 2015 | PoliticoPro
By Elana Schor
A Canadian company's last-ditch attempt to buy time for its Keystone XL pipeline was sputtering Tuesday, with the White House showing every sign that President Barack Obama intends to bring the seven-year-long fight to a close on his own.
Even without a final verdict yet from Obama on approving or rejecting the Canada-to-Texas oil pipeline, environmentalists treated the outcome as a victory against long odds. Meanwhile, the oil industry had spent big and fallen flat for a project that was now getting few public cheers from its traditional fans in the GOP.
The traditional roles in the pipeline feud were reversed Tuesday as TransCanada, the pipeline's once-impatient developer, pushed for a yearlong delay from an administration that was suddenly skeptical of requests to stop the clock.
TIMELINE: Keystone's 7-year saga
"Given how long it's taken, it seems unusual to me to suggest that somehow it should be paused yet again," White House spokesman Josh Earnest told reporters, less than 24 hours after TransCanada sought a pause that could push the decision to the next president. The company's request cited uncertainty over the project’s route through Nebraska — similar to the reasoning that the administration previously used to delay Obama's decision past the 2012 and 2014 elections.
Still, the administration gave no indication of when it might announce a decision on either the delay or the pipeline itself. A State Department spokeswoman said only that the agency would not stop its review of Keystone while it decides on TransCanada's request. Obama has previously said he hopes to rule on the Keystone permit before he leaves office.
Environmental groups, meanwhile, are impatient for Obama to reject the pipeline now — a switch from their angst from four years ago, when a greenlight from the White House appeared imminent. Some green groups are already moving on to bigger fights, including the push to reach a global deal on climate change at a summit that starts late this month in Paris.
And the fervently pro-Keystone GOP isn't showing much fight on the issue. Florida Sen. Marco Rubio was the only Republican presidential hopeful to respond to questions about TransCanada’s request for a delay.
The request "is another consequence of President Obama's outrageous political decision to block the Keystone pipeline, which would create thousands of jobs and strengthen our national security," Rubio spokeswoman Brooke Sammon said by email. "Marco has outlined a comprehensive, pro-growth energy plan, and as president, he'll approve Keystone as soon as possible."
But at the moment, pushing Keystone through legislation would be "kind of tough," Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said, "now that they've taken the application down, or at least put it on hold." That was much different from early this year, when Murkowski and her GOP colleagues spent nearly a month on a bill that aimed to force federal approval of the Keystone permit request.
“They know the Obama administration is going to say no,” Sen. John Hoeven (R-N.D.) said of TransCanada, calling a delay “the best case they’re going to get out of” the president’s team.
House Majority Leader Kevin McCarthy (R-Calif.) described TransCanada's request for a postponement as a natural response to an “administration devoid of critical thinking or solutions.” He contrasted the issue with the House’s highway bill debate, which may feature more than 100 amendments from both parties, rather than directly criticizing Obama’s expected rejection of the pipeline.
One of Keystone’s stalwart Democratic boosters also saw few signs of life in the GOP effort to push the pipeline past Obama, even if other projects to move heavy Canadian oil into the U.S. eventually succeed.
“Forget about this administration,” Sen. Joe Manchin (D-W.Va.) advised, saying he doubts that Republicans will take up Keystone legislation again after failing to corral enough votes to override Obama's veto earlier this year. “I don’t see anybody changing their votes.”
Keystone's supporters within the oil industry are still not willing to concede defeat, though Obama's years of inaction rankle them.
"One person made a decision not to move forward on the project" despite its bipartisan support in Congress, said Louis Finkel, the American Petroleum Institute's top lobbyist, who slammed the White House for opting "to reject the will of the people."
Finkel said the environmentalists celebrating their presumed success "should take their tactics to the public" at the ballot box next year, letting voters decide which energy policy vision they prefer. The oil industry pointed on Tuesday to a poll that showed majorities of voters backing oil and natural gas development.
TransCanada said it wasn't throwing in the towel either.
“Our focus right now is not on the political machinations of what this president may or may not do, or what a future administration may or may not do,” TransCanada spokesman Mark Cooper said. The company would stay committed to the project “as long as our shippers are supportive,” he added.
But the environmentalists who led the Keystone fight are already turning their attention to other energy campaigns that can benefit from the same aggressive, social media-driven grass-roots strategy that’s on the verge of taking down the $10 billion pipeline. Sens. Jeff Merkley (D-Ore.) and Bernie Sanders (I-Vt.) are hoisting one of those new banners Wednesday with a bill that aims to block further oil and gas drilling on federal lands.
“Republican presidential candidates need to get serious about a clean energy future rather than obsessing about one pipeline,” League of Conservation Voters Senior Vice President of Government Affairs Tiernan Sittenfeld said. “People have realized it’s time to move on, and we are confident that this pipeline will not be built.”
People following the Keystone saga largely saw TransCanada’s delay request as a bid to keep its current permit application alive until a potential Republican president can approve it in 2017. Yet the company could also submit a new application to the next GOP White House even if Obama rejects the project outright.
Cooper, the TransCanada spokesman, declined to address the question of whether the company might reapply for a permit under the next president. But he did vow, like Finkel of API, that greens’ win would prove short-lived.
“For those who think this is a victory for the environment, for greenhouse gases, to not have pipelines approved — they are sadly mistaken,” Cooper said.
GOP energy lobbyist Michael McKenna sounded a similar note.
“They’ve won the fight, but they’ve lost the war,” McKenna said of climate activists. Pointing to State Department projections that much of Keystone’s emissions-heavy Canadian oil would make its way to global markets regardless of the pipeline’s fate, he asked: “What did they ‘win’?”
Activist Bill McKibben, the 350.org co-founder who stoked the pipeline into a national political issue, answered that question in a Tuesday letter to supporters. “[W]e’ve helped build a movement ready to take down hundreds of other fossil fuel projects and keep fossil fuels where they belong — underground.”
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Keystone Delay Request ‘Unusual,' Earnest Says
Nov 4, 2015 | BNA Daily Environment Report
By Ari Natter
TransCanada Corp.'s request for a pause in the federal review of its Keystone XL pipeline “seems unusual,” White House Press Secretary Josh Earnest said during a press briefing Nov. 3.
Earnest added the “current plan” remains for President Barack Obama to make a decision on the proposed pipeline before leaving office in January 2017.
The State Department is still reviewing TransCanada's request for the delay, Earnest said, “but given how long it's taken, it seems unusual to me to suggest that somehow it should be paused yet again.”
The Calgary-based company requested the State Department delay its review of the proposed 1,700-mile pipeline, in a Nov. 2 letter, in which it said it wanted a suspension of the review while Nebraska regulators make a decision on the final route for the $8 billion pipeline (212 DEN A-19, 11/3/15).
Rob Barnett, an analyst for Bloomberg Intelligence, said the request is seen as a bid to avoid an anticipated rejection of the project by the Obama administration in hopes a Republican wins the White House in 2016.
“A Republican victory is probably the best hope for approving the transport project that is critical to Canada's oil-sands development,” Barnett wrote in a research note Nov. 3.
Earnest, in his remarks at the White House press briefing, said the State Department is analyzing TransCanada's letter to determine “what is motivating that request.”
The pipeline, which would carry crude from the Alberta oil sands to Gulf Coast refineries in Texas, requires a presidential permit because it crosses an international boundary, and a review remains ongoing at the State Department.
Handling of the project, first applied for by TransCanada in 2008, has come to represent the administration's commitment to addressing climate change, and proponents have said it is being delayed for political reasons.
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EPA Extends Comment Deadline on Methane Rules
Nov 4, 2015 | BNA Daily Environment Report
The Environmental Protection Agency is extending until Dec. 4 the deadline to comment on a package of rules intended to curb methane emissions from new oil and natural gas wells. The comment period originally closed Nov. 17. The EPA proposed the first new source performance standard for methane emissions from new oil and gas wells (RIN 2060-AS30) Sept. 18. The EPA estimates its proposal will reduce emissions of methane—a potent but short-lived greenhouse gas—by between 340,000 short tons and 400,000 short tons by 2025. With that rule, the EPA also published a proposed rule (RIN 2060-AS06) on when oil and gas facilities should be aggregated for permitting purposes as well as a proposed federal implementation plan (RIN 2060-AS27) for minor emissions sources on Indian lands. The EPA's notice is available at http://www3.epa.gov/airquality/oilandgas/pdfs/20151103commentextension.pdf.
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House Subcommittee Moves to Kill EPA's Carbon Rules
Nov 4, 2015 | BNA Daily Environment Report
By Anthony Adragna and Andrew Childers
A sharply divided House Energy and Commerce Committee subpanel advanced two resolutions Nov. 3 that would nullify the centerpieces of President Barack Obama's efforts to combat climate change.
The Energy and Power Subcommittee advanced one resolution (H.J. Res. 72) that would kill off the Clean Power Plan, which aims to slash carbon dioxide emissions from the nation's existing power plants, and another (H.J. Res. 71) that would block final emissions limits for new and modified power plants.
The votes on the measures, sponsored by the subcommittee's chairman, Rep. Ed Whitfield (R-Ky.), were 15-12.
“These resolutions are necessary for protecting ratepayers, the reliability of our electricity supplies and our nation's global competitiveness,” Whitfield said. “We would not be doing this today except for the administration consistently showing it is unwilling to work with us on these important issues.”
Whitfield previously told Bloomberg BNA the full House hoped to take up the resolutions, under the Congressional Review Act, in “early November.” Both would ultimately require the support of two-thirds of the chamber to become law as Obama has pledged to veto any effort to undermine his efforts on climate change (209 DEN A-11, 10/29/15).
Companion efforts (S.J. Res. 23; S.J. Res. 24) in the Senate, led by Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Shelley Moore Capito (R-W.Va.), are also expected to secure Senate floor votes this month ahead of international negotiations toward a climate change accord in Paris this December.
The EPA formally published both regulations on Oct. 23 (80 Fed. Reg. 64,510; 80 Fed. Reg. 64,662). More than half the states and dozens of industry groups already have challenged the Clean Power Plan (RIN 2060-AR33), and some of those same entities also have filed legal challenges to the standards for new and modified plants (RIN 2060-AQ91).
Democrats Call Resolutions Unfortunate
Multiple Democrats on the subcommittee said it was unfortunate the panel was considering legislation to undo the administration's actions on climate change.
“It's disappointing we're here again today,” Rep. Frank Pallone (D-N.J.), ranking member of the full House Energy and Commerce Committee, said. “We've already wasted enough of the committee's time.”
Democratic lawmakers said the effort was a waste of time because the resolutions stood no chance of becoming law.
“I think we all know the president will not sign these resolutions,” Rep. Gene Green (D-Texas) said.
States Challenge New Plant Rule
Meanwhile West Virginia and 22 other states filed a lawsuit Nov. 3 challenging the EPA's new source performance standards for future and modified power plants (West Virginia v. EPA, D.C. Cir., docket number unavailable, 11/3/15).
The states argue the EPA's performance standards are unlawful because they require new coal-fired power plants to install costly and unproven carbon capture systems to meet the emissions limit.
“EPA cannot rely on experimental and costly technology that threatens hard-working West Virginians whose livelihoods are dependent upon the coal industry,” West Virginia Attorney General Patrick Morrisey said in a Nov. 3 statement.
The states' lawsuit joins similar challenges to the performance standards already brought by North Dakota, Murray Energy Corp. and the Energy & Environmental Legal Institute (211 DEN A-4, 11/2/15).
Most of those states also have brought a lawsuit challenging the EPA's Clean Power Plan, issued under Section 111(d) of the Clean Air Act, which sets carbon dioxide emissions limits for existing power plants (West Virginia v. EPA, D.C. Cir., No. 15-1363, 10/23/15).
The EPA must regulate carbon dioxide emissions from new power plants under Section 111(b) of the Clean Air Act before it can regulate existing power plants under Section 111(d). A successful challenge to the new source performance standards would also effectively overturn the Clean Power Plan.
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23 States Seek To Block EPA Carbon Rule For New Plants
Nov 3, 2015 | PoliticoPro - Whiteboard
By Alex Guillén
West Virginia today led 22 other states in suing over EPA’s carbon rule for new power plants, expanding its litigation into the second of the two power plant carbon rules published last month.
The suit says only that the rule — which requires new coal-fired power plants to use partial carbon capture technology to limit their emissions — oversteps EPA's authority and is "not in accordance with law."
“EPA cannot rely on experimental and costly technology that threatens hard-working West Virginians whose livelihoods are dependent upon the coal industry,” West Virginia Attorney General Patrick Morrisey said in a statement.
The Clean Air Act requires EPA to regulate new sources of pollution before existing sources, meaning that if the new plant rule is tossed out by a court, the larger Clean Power Plan goes down as well.
The states involved in the suit are West Virginia, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming. Also party to the suit are the Arizona Corporation Commission, and environmental agencies for Louisiana and North Carolina. New Jersey, which joined a multi-state lawsuit challenging EPA's carbon rules for existing plants, did not participate in today's filing.
The new lawsuit likely will be joined with one brought against the new plant rule last month by North Dakota. Murray Energy and the Energy & Environment Legal Institute have also sued over the new plant rule.
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States Sue Over EPA Rule On New Power Plants
Nov 3, 2015 | The Hill - E2 Wire
By Devin Henry
Twenty-three states are suing the Environmental Protection Agency (EPA) over its emissions rules for new and modified power plants.
The states, led by West Virginia Attorney General Patrick Morrisey, say the EPA exceeded its authority when issuing the rules, which look to cut down on carbon emissions from future power plants around the United States. The EPA’s rule sets carbon limits for natural gas and coal-fired power plants, requiring the plants to implement new technologies to decrease their emissions.
In a statement, Morrisey said the rule would hurt the state’s coal industry.
“This gamble proves far too costly for West Virginia,” Morrisey said. “EPA cannot rely on experimental and costly technology that threatens hard-working West Virginians whose livelihoods are dependent upon the coal industry.”
The new plant rule is separate from the Clean Power Plan, which limits carbon emissions from existing power plants. Taken together, the regulations are designed to reduce power sector carbon emissions, a strategy at the heart of President Obama's climate platform.
Both rules have run into legal and legislative opposition among Republicans and red-state Democrats.
A House panel approved Congressional Review Act resolutions against the two rules on Tuesday. Senate Majority Leader Mitch McConnell (R-Ky.) has said the Senate will take up similar measures soon, though President Obama has promised to veto them.
More than half the states have already sued over the Clean Power Plan, including a coalition similar to the one led by West Virginia in the new power plant lawsuit. The states are hoping a court panel will stay the rules’ implementation during litigation, a decision that will come no earlier than late December.
“These unlawful policies cannot go forward,” Morrisey said. “Not only will EPA’s rules threaten good-paying jobs and small business throughout West Virginia, this unilateral action is unlawful.”
The states joining West Virginia include Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming.
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House Panel Approves Climate Rule Resolutions
Nov 3, 2015 | The Hill - E2 Wire
By Devin Henry
A House committee on Tuesday approved two resolutions to overturn the Obama administration’s climate rule for power plants.
The Congressional Review Act resolutions, sponsored by Rep. Ed Whitfield (R-Ky.), are meant to block the Clean Power Plan rule limiting carbon emissions from existing power plants and a similar rule for new plants. “The [CRA] can be invoked to prevent a rule that exceeds an agency’s statutory authority or prevent a rule that is likely to be unworkable or that would do more harm than good,” Whitfield said during an Energy and Commerce subcommittee mark-up on the legislation.
“In the case of EPA’s carbon dioxide regulations, the two resolutions of disapproval would prevent all of these things.”
Republicans and coal-state Democrats have long opposed the Clean Power Plan, which looks to cut power sector emissions by 32 percent by 2030. During the mark-up on Tuesday, Republicans repeated many of their long-held objections to the rule, warning that it could raise electricity rates and make the power grid less reliable.
They said President Obama went too far in enacting the power plant rules, equating them to a failed push to get cap-and-trade legislation through Congress during the president’s first term.
“We would not be doing this today if it weren’t for the administration showing it is unwilling to work with us on this important issue,” Whitfield said.
Democrats, though, lambasted the effort, repeating warnings from scientists about the impact of carbon emissions on climate change and calling on Republicans to craft their own plan addressing the issue rather than undoing Obama's rule.
“At a time when doctors are warning us to do much, much, more to protect or children from climate change, we are here trying to undo the work of the very agency that is most responsible for protecting our air, our water from harmful pollutants,” Rep. Bobby Rush (D-Ill.) said.
Whitfield introduced his resolutions after the Obama administration finalized the climate rules last month. Several senators have done the same, and Majority Leader Mitch McConnell (R-Ky.) has pledged to bring the bills to the floor for a vote soon.
If they reach his desk, Obama is certain to veto any resolutions against his climate regulations, something Whitfield himself has acknowledged as likely.
But Republicans said Tuesday that the CRA resolutions are important, nonetheless.
“It’s still a useful exercise because it shows the will, as expressed by the majority … that the American people are not happy with President Obama’s climate change policy,” Rep. Joe Barton (R-Texas) said.
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As ESPS Suit Begins, GOP Pushes Air Act Codification To Bolster Critics
Nov 3, 2015 | InsideEPA
By Lee Logan
Just as litigation over EPA's existing power plant greenhouse gas rule is beginning, House Republicans are pushing legislation to reorganize various environmental laws in the U.S. Code in an effort that would clarify competing versions of a key Clean Air Act section and bolster an interpretation offered by state and industry critics, who charge the agency lacks threshold power to advance its rule.
But in a sign of how heated the issue has become, three top Republicans on the House Energy & Commerce Committee in a Nov. 2 letter are accusing EPA of stalling the arcane effort to reorganize various environmental laws in the U.S. Code to boost the legal foundation of its existing source performance standards (ESPS), by preserving competing versions of the air act section that GOP lawmakers charge let the agency “create an argument” that it has authority for the regulation.
The underlying dispute over EPA's authority for the ESPS is complicated because House and Senate amendments to section 111(d) were never reconciled in conference before the 1990 air act amendments were enacted. The Senate amendment would explicitly allow EPA's proposed rule by limiting section 111(d)'s "112 exclusion" to pollutants already regulated under that section. The House amendment could be read as prohibiting the rule because it focuses on source categories, not pollutants.
The issue has already been the subject of unsuccessful litigation seeking to block the proposed version of the ESPS, where West Virginia, coal mining firm Murray Energy and other agency critics charged that the agency lacked threshold authority to issue the ESPS.
But the courts never go to the merits of the argument, finding instead that the litigation was premature because the rule was not yet final. Nevertheless, Murray and other critics have already signaled in litigation over the final version of the ESPS that they plan to raise the issue again.
“As EPA has repeatedly admitted, starting with the Clinton Administration and continuing to the proposed version of the [ESPS] itself, this text in the U.S. Code means what it says: EPA may not require states to regulate a source category under Section 111(d) when EPA already regulates that source category under section 112,” West Virginia and other states said in their recent brief asking the U.S. Court of Appeals for the District of Columbia Circuit to stay the final rule.
Even as EPA was completing the final rule, the congressional Office of Law Revision Counsel, which is appointed by the House speaker, was continuing its multi-year effort to restate the air act in the U.S. Code as “positive” law -- which would conclusively establish the text of the law rather than its current status as “prima facie evidence of the law.”
The law revision office says it has been working on the effort since 2007, with the intent of consolidating all major environmental laws into one section of the U.S. Code.
But EPA argues that a bill approved Oct. 27 by the House Judiciary Committee, H.R. 2834, which would implement the law revision office's proposals, would incorrectly codify critics' interpretation of air act section 111(d).
“By selectively using one text and not including other language that had been enacted by Congress and signed into law by the President, the restated provision, if it were law, would exacerbate the confusion,” EPA General Counsel Avi Garbow says in a July letter to the Judiciary Committee.
'Great Reliance'
Due to the Obama administration's opposition, the judiciary bill likely faces a high hurdle to enactment. Further, it is not clear whether it would technically impact the ESPS because a bill must specifically state it applies retroactively in order to have that effect.
Even so, conclusively removing the Senate amendment -- as H.R. 2834 would do -- would undercut a key pillar of EPA's legal argument.
The GOP lawmakers argue that H.R. 2834 “would remove an un-executable remnant of statutory language enacted in the 1990 amendments to the Clean Air Act.”
The GOP lawmakers -- Energy & Commerce Committee Chairman Fred Upton (MI), oversight panel Chairman Tim Murphy (PA) and power panel Chairman Ed Whitfield (KY) -- argue that EPA “has put great reliance” on the language that would be removed, and argue the agency “may have been inhibiting a statutorily prescribed process because it would undermine the agency's legal arguments supporting its” ESPS.
The lawmakers ask EPA to provide a host of documents by Nov. 16 regarding its participation in the law revision counsel's process to restate the air act as “positive” law.
The lawmakers' letter comes in response to the law revision counsel's charge in a Sept. 16 letter to the Judiciary Committee that, “Although the EPA letter does not say so in so many words, it appears that EPA opposes enactment of the Clean Air Act and other source laws into a positive law title of the United States Code.”
The letter argues that EPA for years has not “made any communication of which we are aware suggesting that EPA had an issue with” the law revision office's 1992 determination that the Senate amendment “could not be executed.”
It further notes that the Senate amendment is listed as a “conforming amendment,” and that any provision intended to substantively change the meaning or effect of the law included in such a section “would be seen as a breach of trust among the members, to put it mildly.”
The law revision counsel also suggests that the Senate amendment might be a “mistake,” and if so, it would “properly be treated as a dead letter.”
As a result, enactment of the bill, and the law revision counsel's recent letter, could provide support for petitioners challenging the ESPS. Murray Energy, for example, argued in the earlier litigation that courts should defer to the law revision office's interpretation of section 111(d).
“In this case, the Office did its job and applied the 1990 Amendments in updating the Code. EPA has identified no oversight or error by the Office,” the mining firm says in a December 2014 brief in failed litigation over the proposed ESPS. “To the contrary, it is clear from the Office’s amendment note to Section 111 that the Office executed the substantive [House] amendment and determined that the superfluous conforming [Senate] amendment failed. EPA cannot second guess that determination.”
An industry lawyer says that the law revision counsel's letter is the “most damning part” of the House GOP's recent request for information on the issue. “This just adds more ammo to the arguments that the administration is willing to do anything and everything to get the [ESPS] going -- no matter how weak the legal backing is,” the source says. In the final ESPS, EPA adopted a new interpretation of the House amendment to section 111(d), arguing it is ambiguous but that the only “reasonable” reading would allow the rule to move forward. But the agency also argues that the presence of the Senate amendment cannot be ignored, and that giving weight to both amendments would also allow the agency to promulgate the rule.
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One Effort to Kill Water Rule Fails; Another Likely to Pass
Nov 4, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Senate failed to take up legislation Nov. 3 that would force the Obama administration to redo a rule clarifying the scope of the Clean Water Act, but teed up a separate vote to outright kill the final rule that is expected to pass.
More than half the chamber voted to move onto a resolution of disapproval (S.J. Res. 22) from Sen. Joni Ernst (R-Iowa) that would nullify the waters of the U.S. rule issued by the Environmental Protection Agency and U.S. Army Corps of Engineers.
Final passage of the resolution—subject to a lower procedural threshold of a simple majority—to immediately kill the rule and prevent the agencies from promulgating a significantly similar version in the future is likely to occur around midday Nov. 4, according to an aide for Senate Majority Leader Mitch McConnell (R-Ky.).
Stand-alone Vote Falls Short
An earlier procedural vote to move to the Federal Water Quality Protection Act (S. 1140), which calls for a rewrite of the rule, fell three votes short of obtaining the 60 votes necessary to invoke cloture and allow the Senate to consider the bill. McConnell then moved forward with the Ernst resolution under provisions of the Congressional Review Act.
“If you're looking for an excuse to extend the reach of the federal bureaucracy as widely and intrusively as possible, why not just issue a regulation giving bureaucrats dominion over land that has touched a pothole, or a ditch, or a puddle at some point?” McConnell said on the floor. “And that's why the waters of the U.S. regulation is so worrying.”
Although the Ernst resolution is expected to easily pass in the chamber, it faces a certain veto from President Barack Obama. It then appears unlikely to secure the 67 Senate votes necessary to override the veto.
Ernst introduced the Congressional Review Act challenge to the regulation Sept. 17 with the backing of 46 Republican senators. Just one regulation has been overturned through use of the statute since it became law in 1996—a final rule from former President Bill Clinton's Labor Department setting ergonomics standards (181 DEN A-10, 9/18/15)
Four Democrats Support Bill
Democrats bucking their party to support S. 1140 were Sens. Joe Donnelly (Ind.), Joe Manchin (W.Va.), Heidi Heitkamp (N.D.) and Claire McCaskill (Mo.).
The joint EPA and Corps of Engineers regulation (RIN 2040–AF30) has been a flashpoint for controversy since its release this summer (80 Fed. Reg. 37,054). Lawsuits by more than 30 states and 20 organizations representing agriculture, industry and developers have been filed against the rule, and a federal appeals court issued a nationwide stay in October (In re EPA, 6th Cir., MDL No. 135, 10/9/15).
S. 1140, sponsored by Sen. John Barrasso (R-Wyo.) and Donnelly, would have forced the agencies to rewrite the final rule by Dec. 31, 2016, and include only streams that have enough flow to transport pollutants at levels that would impair traditional navigable waters (84 DEN A-19, 5/1/15).
“We don't have to sit on the sidelines and watch this rule slowly crumble under legal scrutiny,” Barrasso said before the vote. “This piece of legislation on the floor today allows for Congress to establish the principles of what the new EPA rule would look like.”
White House Threatens Vetoes
The White House said advisers would recommend that Obama veto either measure undermining the clean water rule should they reach his desk. In particular, a statement of administration policy said the Ernst resolution was “not an act of good governance.”
“If enacted, S.J. Res. 22 would nullify years of work and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water,” the statement said. “It would sow confusion and invite conflict at a time when our communities and businesses need clarity and certainty around clean water regulation.”
Earlier in the day, the Obama administration said in a separate statement of administration policy that it “strongly opposes” S. 1140.
“If S. 1140 were enacted, any revisions to the [Clean Water Act] regulations would require the agencies to define waters of the United States in a manner inconsistent with the [Clean Water Act] as interpreted by the U.S. Supreme Court, resulting in more confusion, uncertainty, and inconsistency,” the statement said.
House lawmakers passed similar legislation (H.R. 1732) in May on a 261-155 vote. That bill, which also drew a veto threat from the White House, would have forced the rule's withdrawal within 30 days of the legislation passing (92 DEN A-3, 5/13/15).
11 Senators Outline Concerns
Several Democratic and independent senators who previously expressed concerns with the regulation opted not to back S. 1140, but their votes came with a warning.
“While we cannot currently support the Federal Water Quality Protection Act, we believe the EPA and Army Corps of Engineers can and must do better to address the legitimate issues that have been raised in regards to the implementation of this rule,” a Nov. 3 letter from 11 senators said. “Should the EPA not provide this clarity or enforce this rule in a way that erodes traditional exemptions, we reserve the right to support efforts in the future to revise the rule.”
Sen. Angus King (I-Maine) led the effort to send the letter, which was addressed to EPA Administrator Gina McCarthy and Jo-Ellen Darcy, assistant secretary of the U.S. Army for civil works.
Also signing the letter were Democrats Bill Nelson (Fla.), Tim Kaine (Va.), Mark Warner (Va.), Dianne Feinstein (Calif.), Brian Schatz (Hawaii), Chris Coons (Del.), Tom Carper (Del.), Jon Tester (Mont.), Michael Bennet (Colo.) and Amy Klobuchar (Minn.).
Earlier during the debate over S. 1140, senior Senate Democrats said the Barrasso bill could not become law and criticized Republicans for what they described as wasting the chamber's time.
“Republicans are content to waste the Senate's time just so they can launch another attack on the environment,” Senate Minority Leader Harry Reid (D-Nev.) said on the floor. “They are just wasting valuable Senate time on these show votes.”
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White House Warns Of 'Confusion' From Senate Bills To Block CWA Rule
Nov 3, 2015 | InsideEPA
By Bridget DiCosmo
The White House is warning that two Senate bills to undo EPA's Clean Water Act (CWA) jurisdiction rule would create major regulatory “confusion” if they became law, though at press time senators blocked consideration of the first bill to revise the rule and EPA's critics might lack the 60 votes to approve the second measure to scrap the rule.
The first of the two measures is S. 1140 introduced by Sen. John Barrasso (R-WY) that would force EPA and the Army Corps of Engineers to immediately withdraw their joint rulemaking, and then launch an extensive round of consultation with states, industry, and others to inform a new version of the regulation. Senators blocked that bill Nov. 3 in a 57-41 vote on invoking cloture, three votes shy of the 60 needed to proceed to consider the bill.
Attention shifts to the second of the two bills, S.J. Res. 22 introduced in September by GOP Sen. Joni Ernst (IA), which would use Congressional Review Act (CRA) disapproval authority to entirely scrap the CWA rule.
Senators in a 55-43 vote Nov. 3 agreed to open debate for 10 hours on the resolution, which at press time had 49 co-sponsors, and no Democratic supporters -- far short of the 67 votes vital to overcome a presidential veto. According to the Senate website, a vote on the resolution could take place as early as noon on Nov. 4.
The White House in two Statements of Administration Policy (SAP) issued Nov. 3 said President Obama's senior advisors would recommend that he veto both S. 1140 and S.J. Res. 22 if they cleared Congress.
The CRA allows Congress to approve resolutions by a majority vote to undo agency rulemakings. However, even if Republicans are able to secure the 60 votes needed to clear the resolution through Congress, it is doubtful that Senate supporters of the push would be able to secure the 67 votes to overcome an expected Obama veto.
The SAP on the CRA resolution says it would “nullify years of work and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water. EPA and Army have sought the views of and listened carefully to the public throughout the extensive public engagement process for this rule.”
“Simply put, S.J. Res. 22 is not an act of good governance. It would sow confusion and invite conflict at a time when our communities and businesses need clarity and certainty around clean water regulation.”
If such a resolution succeeded either with Obama's signature or by Congress overturning a veto, some observers have said that the CRA could prohibit the agencies from crafting another jurisdiction policy.
Disapproval Resolution
The CRA says a rule blocked under the CRA "may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."
House critics of the rule in July introduced their CRA resolution, H.J. 59, which has support from three Democrats: Reps. Collin Peterson (MN), David Scott (GA) and Brad Ashford (NE), and 34 GOP co-sponsors.
Critics of the rule -- which the administration says clarifies the water law's scope, but which opponents say expands the reach of the CWA far beyond what Congress intended -- will look to move the resolutions after the 57-41 vote that blocked further consideration of Barrasso's bill to revise the rule.
S. 1140 had 46 total sponsors with three Democrats supporting the bill: Sens. Joe Donnelly (D-IN), Heidi Heitkamp (D-ND) and Joe Manchin III (D-WV).
Other Democratic lawmakers during the floor votes on S. 1140 Nov. 3 urged lawmakers to vote down the motion to invoke cloture. Sen. Barbara Boxer (D-CA), ranking member on the Environment & Public Works Committee, said the bill would “repeal the heart of the CWA.”
Senate Minority Leader Harry Reid (D-NV) meanwhile called the vote “another Republican charade” aimed at attacks on the administration’s environmental policies.
The White House in its SAP on the Barrasso bill warned that, “If S. 1140 were enacted, any revisions to the CWA regulations would require the agencies to define waters of the United States in a manner inconsistent with the CWA as interpreted by the U.S. Supreme Court, resulting in more confusion, uncertainty, and inconsistency.”
Separate from efforts in Congress to block the CWA rule, the regulation is also the subject of more than a dozen district court and appeals court challenges. The U.S. Court of Appeals for the 6th Circuit on Oct. 9 issued a nationwide injunction blocking EPA and the Corps from implementing the rule as it weighs whether it has authority to hear the suits, with two judges suggesting if they hear the suit then they will scrap the policy for exceeding EPA's authority.
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Senate Set For Close Procedural Vote On Bill To Redo Clean Water Rule
Nov 3, 2015 | PoliticoPro
By Jenny Hopkinson
The Senate could move Tuesday to limit debate on proceeding to a bill that would force the EPA to scrap and reissue its Clean Water Rule, a move that supporters hope will set the stage for the measure to be added to upcoming appropriations legislation in a long-shot bid to avert a White House veto.
With House and Senate lawmakers preparing to reconcile their separate versions of the bill, the American Farm Bureau Federation and other opponents of EPA’s rule are pushing to combine the legislation with a "must-pass" measure like a spending bill, which they say could make it harder for President Barack Obama to follow through on his veto threat.
“They will have to conference them, and then the real decision would be, do you send it over to the president as a stand-alone legislation?” said Don Parrish, the farm bureau's senior director of regulatory relations. “[W]e would be in favor of putting it with the end-of-the-year spending bill.”
Even in the spending bill, the measure would face stiff opposition from the administration and the majority of Senate Democrats, who have long defended the rule despite attacks from Republicans, state officials and the agriculture, energy and construction industries.
In a Statement of Administration Policy on Tuesday morning, the White House threatened to veto Wyoming Republican John Barrasso's legislation (S 1140), arguing it would run afoul of the Clean Water Act and result in “in more confusion, uncertainty, and inconsistency” for regulated groups. The administration issued similar criticisms of the House bill, H.R. 1732, by Rep. Bill Shuster (R-Pa.), which passed in May.
The EPA rule, which went into effect in late August, seeks to clarify which water bodies are governed by the federal Clean Water Act.
Industry groups and states have long called for greater clarity on the issue, although they argue that the rule is too stringent and would regulate almost every waterway in the United States. Since the rule was finalized in June, 31 states and dozens of industry groups have sued to block the measure, arguing that the agency has violated federal rulemaking laws, infringed on states' rights and gone far beyond the intent of the Clean Water Act.
The U.S. 6th Circuit Court of Appeals stayed the rule in October pending a decision on which court has authority over the cases.
The House and Senate bills both call for the EPA to withdraw the rule and use guidelines in the legislation to work with landowners, industry groups and state and local governments to redraft the measure. However, the Senate version also includes a provision instructing the administration to "use best efforts” to publish a final rule by Dec. 31, 2016, which has been touted by the Democrats signed onto the bill.
“There is no long, hide-the-ball game being played here,” Indiana Democrat Joe Donnelly, a co-sponsor of the Senate bill, said in a floor speech. “We want to have this done by the end of next year.”
Farmers and other groups want the rule withdrawn by the end of the year, before they need to start making land-use decisions in the spring that could require federal permits. While they support Congress' calls for the EPA to reissue a rule, Parrish said, "the window for getting this thing done by the end of 2016 is tight.”
Senate Majority Leader Mitch McConnell has echoed the concerns of industries and the states. In remarks on the Senate floor Tuesday morning, the Kentucky Republican argued, “If the administration is actually serious about protecting waterways — and not just cynically using this regulation as a ploy to extend the bureaucracy’s reach — then it should follow the proper process to get to a balanced outcome."
The Kentucky Republican said the EPA failed to consult properly with farmers, landowners, mine operators, states and other groups affected by the rule.
“In short, what this bipartisan bill would do is require the administration to actually follow the balanced approach it should have followed in the first place,” he said.
The ultimate passage of Barrasso's bill will depend on getting more Democrats or the chamber's two independents to back the measure. Sens. Donnelly, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Claire McCaskill of Missouri have said they will vote for the legislation, requiring at least a couple more votes to overcome a filibuster.
Democratic leadership in the Senate has long panned the Republican efforts to roll back the rule.
“This legislation will fail, of course, and Republicans know it will fail,” Senate Minority Leader Harry Reid predicted in a speech on the floor Tuesday, adding that even if the measure were to pass, it will be vetoed by the president.
Republicans “have no solutions, they have no plan to keep our water clean or address climate change,” Reid said, calling the effort to pass Barrasso’s bill “a show vote.”
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