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ACC Nov 5
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EPA Biotech Algae Oversight Sufficient, Industry Says
Nov 5, 2015 | BNA Daily Environment Report
By Pat Rizzuto
No additional regulations are needed to oversee the commercial use of genetically engineered algae to manufacture chemicals, a leading trade association has told the Environmental Protection Agency. The Biotechnology Industry Organization “would argue that there are no ‘unique issues’ that arise as a result of ... -
EPA calls for nominations for 21st Presidential Green Chemistry Award
Nov 4, 2015 | Renewable Energy From Waste
The U.S. Environmental Protection Agency (EPA) has announced its request for nominations for its 2016 Presidential Green Chemistry Challenge Awards for companies or institutions that have developed a process or product that better protects public health and the environment. -
Pennsylvania Bill Targets Rural Gathering Lines
Nov 5, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
Pipelines transporting Marcellus Shale gas through rural areas of Pennsylvania would receive greater scrutiny by state utility regulators under new legislation introduced in the state. The Oct. 26 proposal targets gathering pipelines in rural areas, classified by the U.S. Department of Transportation's Office of Pipeline and Hazardous Materials Safety... -
The Tangled Tale of PTC
Nov 4, 2015 | Railway Age
By William C. Vantuono
Why is PTC so expensive? So complicated? So time-consuming? Delving into its past may provide some answers. As this is being written, it appears the odds are more than even that Congress will be extending the Dec. 31, 2015 deadline for implementing Positive Train Control. On September 30, the House Transportation and Infrastructure... -
(ACC Mentioned) Energy Influence: McGinty Taps Energy Money, But Toomey Has Head Start
Nov 4, 2015 | PoliticoPro
By Alex Guillén
McGinty opens up deem energy money floodgates: It’s clear whom energy donors on the Democratic side of Pennsylvania’s Senate race are favoring: Katie McGinty. The former head of the White House Council on Environmental Quality raised over $137,000 from energy donors between announcing her Senate campaign Aug. 4... -
Oil Industry Warns Against Merkley-Sanders Bill
Nov 5, 2015 | E&E Daily News
By Amanda Reilly
The oil industry yesterday came out swinging against new legislation that would curb drilling on public lands. Calling the proposal a "political stunt," the American Petroleum Institute warned that the bill would add to energy costs and hurt the federal government's coffers. Sens. Jeff Merkley (D-Ore.) and Bernie Sanders (I-Vt.) introduced the... -
U.S. Says It Won't Pause Keystone XL Review
Nov 5, 2015 | BNA Daily Environment Report
By Larry Liebert, Justin Sink and Rebecca Penty
TransCanada Corp. failed in its attempt to pause the U.S. review of its Keystone XL pipeline, keeping the project where it started the week—unlikely to advance under the Obama administration. The State Department said Nov. 4 that it has notified the company that the review, in its eighth year, will continue. The department was responding to a letter... -
Denial of Keystone Would Be ‘No-Brainer,’ Sanders Says
Nov 5, 2015 | BNA Daily Environment Report
By Dean Scott
Democratic presidential candidate Sen. Bernie Sanders (I-Vt.) said Nov. 4 that it would be a “no-brainer” for President Barack Obama to formally deny the Keystone XL pipeline to put the final nail in the coffin for the project even though the energy company asked for a suspension of its application. -
House Democrats Float Bill Imposing Pacific Ban
Nov 5, 2015 | E&E Daily News
By Jeremy P. Jacobs
Nearly 20 West Coast House Democrats yesterday introduced legislation that would permanently ban offshore drilling in the Pacific Ocean. California Democratic Reps. Jared Huffman and John Garamendi led a coalition of 18 legislators predominantly from California, Oregon and Washington in pressing for the moratorium. -
Groups to Sue Oklahoma Energy Companies Over Quakes
Nov 5, 2015 | BNA Daily Environment Report
By Paul Stinson
Environmental groups are putting four Oklahoma oil and gas companies on notice that they intend to file a federal lawsuit against them, alleging that earthquakes induced by their waste injection are causing endangerment in central Oklahoma and southern Kansas resulting in environmental and property damage and personal injuries. -
Backing Requests, EPA Extends Comment Deadline For Oil & Gas Air Rules
Nov 4, 2015 | InsideEPA
By Bridget DiCosmo
EPA is extending by 30 days the comment deadline for its package of Clean Air Act policies affecting the oil and gas sector, including its first-time proposal to regulate methane, in response to requests from states, tribes and industry that additional time was needed to review the four proposed policies and provide feedback. -
States Ask To Defend Obama’s Climate Rule In Court
Nov 4, 2015 | The Hill - E2 Wire
By Timothy Cama
Eighteen liberal states are asking to join in federal litigation to help the Obama administration defend its climate change regulation for power plants.The states, led by New York, plan to argue to federal judges that the Environmental Protection Agency (EPA) is both allowed and obligated to set limits on carbon dioxide pollution... -
States Come to EPA's Defense Over Carbon Standards
Nov 5, 2015 | BNA Daily Environment Report
By Andrew Childers
Eighteen states, including New York and California, Nov. 4 joined the Environmental Protection Agency in its efforts to defend the Clean Power Plan in lawsuits brought by several other states and industry groups (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion to intervene 11/4/15). -
EPA Cites OMB Review Of Utility MACT Cost Finding To Fight Vacatur Call
Nov 4, 2015 | InsideEPA
By Stuart Parker
EPA is citing its submission of a new utility air toxics rule cost assessment for White House pre-publication review to boost its opposition to critics' calls for a federal appeals court to vacate the underlying regulation, with the agency arguing the cost finding is evidence that it is working to address concerns about the rule raised in a Supreme... -
Advocates Press EPA For Strict Biomass Policy In ESPS Compliance Plans
Nov 4, 2015 | InsideEPA
By David LaRoss
Environmentalists are pressing EPA to include strict controls on burning biomass at power plants as it crafts an implementation plan and model pollution trading framework for its greenhouse gas (GHG) rule for existing power plants, underscoring the doubts over how the rule will ultimately treat wood and other biomass fuels. -
Senate Votes to Overturn EPA Water Rules
Nov 5, 2015 | The Wall Street Journal
By Amy Harder and Naftali Bendavid
The Senate on Wednesday voted to disapprove regulations aimed at bringing more waterways under federal protection, employing a rarely used legislative tool that allows Congress to nullify new federal rules with a simple majority. The action, under the Congressional Review Act, comes one day after the Senate failed to get the 60... -
Senate Passes Measure to Kill Water Rule; Fight to Continue
Nov 5, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Senate passed a resolution Nov. 4 by a 53-44 vote that would immediately nullify a regulation from President Barack Obama's administration to clarify the scope of the Clean Water Act, but the measure fell well short of the 67 votes it would need to overcome a sure presidential veto.
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EPA Biotech Algae Oversight Sufficient, Industry Says
Nov 5, 2015 | BNA Daily Environment Report
By Pat Rizzuto
No additional regulations are needed to oversee the commercial use of genetically engineered algae to manufacture chemicals, a leading trade association has told the Environmental Protection Agency.
The Biotechnology Industry Organization “would argue that there are no ‘unique issues’ that arise as a result of commercial scale production of genetically engineered algae and cyanobacteria that have not already been addressed using current EPA regulatory authority for genetically engineered microorganisms,” BIO said in comments submitted to the agency Oct. 30.
BIO commented on guidance the EPA's chemicals office plans to write to assist companies developing new types of genetically engineered algae to make commercial chemicals. The agency held a Sept. 30 workshop to discuss the planned guidance, which would update 1997 policies (190 DEN A-17, 10/1/15).
In contrast to industry perspectives, advocacy groups urged more stringent EPA oversight of genetically modified algae to avoid concerns, including the genetic contamination of wild species and disruption of natural ecosystems.
The EPA's updated guidance is part of a broader governmentwide effort to overhaul federal regulations of genetically modified organisms. The Food and Drug Administration held a meeting Oct. 30 to discuss that effort (211 DEN A-15, 11/2/15).
Written comments on the EPA's guidance for genetically engineered algae were due Oct. 31. The deadline to comment on the broader governmentwide effort to update the federal Coordinated Framework for the Regulation of Biotechnology is Nov. 13.
Regulatory Background for Guidance Update
Microorganisms, such as bacteria, viruses and genetically engineered algae are treated as chemicals under the Toxic Substances Control Act.
The chemicals, such as oils and biobased plastics microorganisms produce, also may be regulated under TSCA.
The EPA's Office of Pollution Prevention and Toxics (OPPT) is updating its 1997 guidance to help companies distinguish new microorganisms from existing microorganisms. The EPA considers existing microorganisms to be on the Toxic Substances Control Act inventory and therefore not subject to OPPT's oversight in most circumstances. New microorganisms are subject to OPPT's review before they can be made.
The updated guidance also will discuss data the EPA would like chemical manufacturers and processors to submit for new microorganisms. Companies making new microorganisms must submit either “microbial commercial activity notices,” called MCANs, or TSCA Experimental Release Applications (TERAs) or both.
The number of MCANs and TERAs the agency receives annually began to increase significantly in 2012 (see chart). That increase is one of the drivers prompting the agency to update its guidance, EPA officials have said.
Carbon Capture as Emerging Application
Beneficial applications for genetically engineered algae also are expected to grow, the Algae Biomass Organization, which promotes algae-based markets, told Bloomberg BNA. Joule Unlimited Technologies Inc., a bioenergy company; and Algenol, which is commercializing algae technology to make ethanol and other fuels, made similar statements.
The Algae Biomass Organization and Algenol pointed to the Clean Power Plan, released by the EPA in August, to illustrate just one emerging application of genetically engineered algae (149 DEN B-1, 8/4/15).
“EPA, in its final rule implementing the Clean Power Plan, recognized the potential of algae-based CCU [carbon capture and utilization] to reduce carbon dioxide emissions from new and existing power plants,” the biomass organization wrote .
The Clean Power Plan would allow the use of algae, and other processes, that turn captured carbon dioxide into biofuels and other chemicals provided the carbon emission reduction can be proven.
The EPA's plan said the agency would work with interested parties to evaluate the efficacy of emerging CCU technologies, to address any regulatory hurdles and to develop appropriate monitoring and reporting protocols to demonstrate carbon dioxide reductions.
BIO: New Can Mean Less Risk
BIO took exception to questions the EPA asked biotech companies to answer as the agency updates its 1997 guidance. The phrasing of those questions, BIO said, suggests the agency is pre-supposing genetically engineered algae poses harm and must be contained.
“That a technology or the product of that technology is ‘new’ does not mean it automatically needs greater oversight or regulation. In fact, many of the older technologies and chemistries receive less oversight even though in many cases they may pose greater risks,” BIO wrote.
While it is appropriate for the EPA to review its 1997 guidance, that review shouldn't automatically imply the guidance needs revision, because the regulatory process the agency established is working well, BIO said.
The Algae Biomass Organization, Algenol and Joule said the agency's current approach to regulating microbes has worked. They did, however, offer suggestions to address some of the agency's goals without unduly burdening industry.
For example, the EPA could establish a database with information to aid risk assessments, require biotech companies to submit data tailored to their specific algae and manufacturing process and compile examples of best practices for outdoor trials involving genetically engineered algae, Joule said.
Advocacy Groups Call for Tougher Oversight
In contrast to industry's comments about the successful current EPA regulatory process, advocacy groups said the agency's current regulatory system is inadequate and urged a far more stringent approach.
“Food & Water Watch rejects the narrow premise of EPA's current approach. We call on the EPA to jettison its dangerous, industry-friendly regulatory approach to genetically engineered organisms under TSCA,” that organization said.
The International Center for Technology Assessment said, “TSCA is inadequate for microorganisms intended to produce specific chemicals in enclosed containers, and it is more inadequate for the regulation of synbio algae grown in ponds with still greater environmental interactions.”
The law's deficiencies are made worse, the center and the Institute for Agriculture and Trade Policy said, by inadequate staffing in OPPT's biotechnology office.
‘“The unhappy fact is that the agency is greatly understaffed and under-resourced to evaluate the flood of novel microbial TERA's and MCANs,” the institute said.
“Recent Congressional assaults on the EPA's mandate and budget are unlikely to stop in the near future,” the institute said.
Emerging Applications Addressed
Biofuelwatch raised additional concerns and weighed in on emerging applications of genetically engineered algae.
If it proves feasible to grow algae on wastewater treatment effluents, genetically engineered algae could prove beneficial, Biofuelwatch said.
The organization opposed the use of growing algae on power plant flue gases—such as algae being used for carbon capture— saying that would make “the algae industry dependent upon the ongoing operation of highly polluting practices, which is hardly ‘sustainable.’ ”
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EPA calls for nominations for 21st Presidential Green Chemistry Award
Nov 4, 2015 | Renewable Energy From Waste
The U.S. Environmental Protection Agency (EPA) has announced its request for nominations for its 2016 Presidential Green Chemistry Challenge Awards for companies or institutions that have developed a process or product that better protects public health and the environment.
“For more than two decades, we have seen creative innovations making our manufacturing processes and products better and safer,” said Jim Jones, assistant administrator for EPA's Office of Chemical Safety and Pollution Prevention. “Our efforts to speed the adoption of revolutionary and diverse disciplines have led to significant environmental benefits, innovation and a strengthened economy.”
Since the start of the program, EPA has received more than 1,500 nominations and presented awards for 104 new technologies that have reduced more than 826 million pounds of hazardous chemicals and solvents, savings 21 billion gallons of water, and eliminating 7.8 billion pounds of carbon dioxide releases.
EPA is sponsoring the Presidential Green Chemistry Challenge Awards in partnership with the American Chemical Society Green Chemistry Institute® and members of the chemical community including industry, trade associations, and academic institutions.
Nominations are due to EPA by December 31, 2015.
Next June, EPA expects to give five awards for outstanding green chemistry technologies in traditional categories and a sixth award for a green chemistry technology that addresses climate change. The award areas include: Greener Synthetic Pathways;Greener Reaction Conditions;Greener Chemical Products;The Design of Greener Chemicals;Small Business (for a technology in any of the three focus areas developed by a small business);Academic (for a technology in any of the three focus areas developed by an academic researcher); andSpecific Environmental Benefit: Climate Change (for a technology in any of the three focus areas that reduces greenhouse gas emissions).
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Pennsylvania Bill Targets Rural Gathering Lines
Nov 5, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
Pipelines transporting Marcellus Shale gas through rural areas of Pennsylvania would receive greater scrutiny by state utility regulators under new legislation introduced in the state.
The Oct. 26 proposal targets gathering pipelines in rural areas, classified by the U.S. Department of Transportation's Office of Pipeline and Hazardous Materials Safety Administration (PHMSA) as Class 1 pipelines. Class 1 gathering lines are currently unregulated in Pennsylvania, according to a memo from the bill's sponsor, Republican state Sen. Lisa Baker.
“I believe the Commonwealth should have the authority to exercise safety jurisdiction over these lines which are prevalent in my Senate district and could be a risk to people, property and the environment,” Baker said in the memo.
A Bloomberg BNA special report in June found that Pennsylvania requires pipeline operators to register gathering pipelines with state regulators, and about 13,000 miles of gathering lines have been registered since 2011(120 DEN B-4, 6/23/15).
Senate Bill No. 1044, or the Rural Pennsylvania Pipeline Safety Act, would allow the state's Public Utility Commission (PUC) to go further and enforce minimum construction standards and require the marking of lines and facilities, geographic information system (GIS) mapping, leak detection standards, record keeping and other safety-related measures related to the construction, operation and maintenance of rural pipelines.
Establish, Maintain Registry
The bill calls for the PUC to establish and maintain a registry of rural pipeline operators and would give the commission authority to investigate pipeline facilities for safety. The bill also allows the PUC to assess and impose fines and penalties for non-compliance. The bill does not mention specific penalty amounts.
The Connection for Oil, Gas & Environment in the Northern Tier (COGENT), a non-profit in shale-rich northern Pennsylvania that advocates for better regulations around natural gas drilling, expressed support for the bill.
“It's probably one of the most critical aspects of the [shale gas] development,” the group's director, Emily Krafjack, told Bloomberg BNA Nov. 4.
Krafjack, whose home in Wyoming County, Pa., lies within 500 feet of a well pad, also serves on a working group of the Pennsylvania Department of Environmental Protection's Pipeline Infrastructure Task Force, which will soon release a draft report on pipeline safety for public comment, she told Bloomberg BNA. Krafjack said she hopes the report will help build momentum and enrich discussion on the bill.
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Nov 4, 2015 | Railway Age
By William C. Vantuono
Why is PTC so expensive? So complicated? So time-consuming? Delving into its past may provide some answers.
As this is being written, it appears the odds are more than even that Congress will be extending the Dec. 31, 2015 deadline for implementing Positive Train Control. On September 30, the House Transportation and Infrastructure Committee introduced H.R. 3651, the Positive Train Control Enforcement and Implementation Act of 2015, which extends the deadline for at least three years (p. 1). The railroad industry breathed a collective sigh of temporary relief, but the question remains: How did it come to an 11th-hour scenario in the first place?
The industry has been spending a tremendous amount of hard-earned capital on a technology they believe will not deliver much more than a marginal improvement to a safety record that is already outstanding, and that has been steadily improving for many years.
Some of the experts who have been involved with PTC are questioning why, in their opinion, it has morphed into an overly complicated, overly expensive and overly time-consuming initiative whose original intent was to deliver not only improved safety, but measurable business benefits. Railway Age has asked several of these skilled and dedicated people to go on the record with their experiences as well as their opinions. Our intent is not to point fingers, or to stir a pot that has been boiling with intensity for quite some time. Rather, we hope to add some useful, constructive dialogue to a highly complex technological undertaking that perhaps was underestimated some seven years ago, when the Rail Safety Improvement Act of 2008 became law.
Agreeing to disagree
Just three short years ago, Railway Age Contributing Editor Ron Lindsey—one of this industry’s more controversial and outspoken individuals—had this to say in our April 2012 issue:
“Regrettably, the technicians that are handling the extensive complexities of delivering an interoperable PTC solution are neither charged with, nor have they been provided with, the necessary management directives and the proper resources to address both the tactical and strategic perspectives. Specifically, the railroads’ technicians have significantly expanded the technical issues of PTC, and therefore the capital investment, beyond what is required, and they have done so without the necessary strategic perspective that could perhaps justify their activities.”
It is not unusual for brilliant minds to butt heads. Over the years, two of them—Lindsey and Steve Ditmeyer, whose experience with PTC encompasses his days at Burlington Northern and then the Federal Railroad Administration—have disagreed on the nuances of PTC. However:
“I agree wholeheartedly with Lindsey’s assessment,” Ditmeyer told Railway Age for this article. He points out that the Class I railroads were implementing a PTC architecture designed by committee, i.e., the Interoperable Train Control (ITC) Committee, without the participation of a system integrator. Had there been one, the system would have worked when the pieces were put together, he believes.
At the National Transportation Safety Board PTC forum in February 2013, NTSB Board Member Mark Rosekind asked UP’s director of PTC, representing the AAR, who the “system integrator” for PTC was.
“The UP rep responded that the railroads were serving as their own system integrators,” Ditmeyer recalls. “Rosekind then asked who was making sure the systems were interoperable. Again, the UP rep responded that the railroads themselves were. After a pause and consulting with others, the UP rep said he believed the AAR had money in its 2014 budget to hire a system integrator person. Rosekind just shook his head and went speechless.”
Ditmeyer doesn’t believe the AAR ever hired that “system integrator person, which in any event would have been only a token gesture,” he says. “System integration is an activity carried out by organizations that have experience in this discipline, not by individuals.”
Further, notes Ditmeyer, “At the June 24, 2015 Senate hearing on PTC, a CSX vice president, testifying for the AAR, talked about the complexity of the PTC implementation process without once mentioning a system integrator.”
Ditmeyer also gave a presentation at the 2013 NTSB PTC Forum in which he said that BN had hired Rockwell International as designer and system integrator for ARES (Advanced Railway Electronics System), a PTC-predecessor initiative with which he was intimately involved from its inception to its shutdown in the 1990s. He notes, “Wabtec, which purchased Rockwell’s Railway Electronics business unit in the late 1990s and which now produces the on-board platform for the I-ETMS PTC system the freight railroads are implementing, told me in 2009, ‘We have a different business model than Rockwell; we are not serving as a system integrator for PTC. Railroads will have to find their own system integrators.’”
“Two of the very few railroads that will have their PTC systems operational by the mandated deadline hired system integrators to help them: Metrolink hired Parsons Corp. and Caltrain hired WSP | Parsons Brinckerhoff,” Ditmeyer points out.
Business benefits—or not?
One of the more controversial arguments involving PTC has been whether it can, on top of safety improvements, deliver business benefits.
“Before the enactment of the RSIA and the PTC mandate, and even for six months after, UP was touting PTC’s business benefits,” says Ditmeyer. “During a Dec. 17, 2008 UP PTC webinar—after the Chatsworth, Calif., accident—UP said PTC can ‘improve safety, velocity and fuel conservation.’”
Ditmeyer points out that the FRA’s economic analysis of PTC in its final PTC regulation only covered safety benefits. “FRA never said that there would be no business benefits, only that they were contentious and so they omitted them,” he notes. “But that does not mean that no business benefits exist for PTC. It should be intuitively obvious to the most casual observer that the continuous, real-time information that PTC produces could generate significant train operating efficiencies if PTC systems were properly implemented.”
So where is the disconnect? Observes Ditmeyer: “The Class I CEOs made a big mistake when they all assigned the responsibility for PTC implementation to their signaling departments. Signal engineers were fearful that PTC would mean the demise of their signal systems. When they were given the responsibility for implementing PTC, they changed the architecture so that PTC would be tied to all intermediate wayside signals, meaning that more than 20,000 data radios would need to be installed. And then they also decided that they needed to replace all their old wayside signals with new ones to which they could connect the PTC system. These decisions more than doubled the cost of PTC from what FRA had estimated.
“Tying PTC to intermediate wayside signals also had an adverse effect on business benefits. It meant that existing fixed blocks, and the relay logic that controlled the signals, would remain in place. Thus, moving block, and the possibility of closer train spacing, would not be possible. That in turn meant that business benefits such as improved running times, improved reliability, increased track capacity and improved asset utilization would not be obtainable. Had the railroads implemented PTC in such a way as to obtain those benefits, their customers would receive better, more reliable service.
“I don’t think the CEOs did this purposely. I think it happened more because they did not bother to learn about PTC technology, which even the AAR had been looking into for more than 20 years at the time. And they did not lean on their people to keep costs low and to maximize the benefits. This is a leadership mistake.
“UP’s late chairman Jim Young had the right to argue for the repeal of the PTC mandate, but by using (in a Sept. 9, 2011 Bloomberg News article) such incendiary language as calling PTC ‘a terrible waste of money’ and saying that ‘the President should junk the idea’ where his employees could read it, he compromised the principles of strategic leadership by removing all motivation from them to figure out ways to get some business benefits from PTC.”
To reiterate Contributing Editor Frank Wilner’s Watching Washington column in our August 2015 issue: “Railroads once advocated an early version of PTC, known as Advanced Train Control System (ATCS); and BN, prior to its merger with the Santa Fe, was field testing ARES. Although railroads envisioned significant business benefits from ATCS and ARES—BN calculated the benefit-cost ratio of ARES as a positive 3-to-1 by including extensive business benefits—the projects were scrapped as railroads instead pursued a chain of mergers. Railroads say the cost of the more-complex PTC exceeds safety benefits by 11-fold. A changed architecture, requiring replacement of wayside signals and retention of fixed-block train spacing—rather than the less expensive moving-block technology used by ARES—eradicated business benefits for PTC. Compounding the technological hurdles fueling delay is the $14 billion price tag—an unfunded federal mandate occurring as the Surface Transportation Board, encouraged by many in Congress, entertains shipper petitions to place new caps on railroad freight rates.”
“When PTC research began anew after the merger era, railroads indicated support only for its safety aspects,” Wilner points out. “Steve Ditmeyer is the one who first identified the error of turning PTC over to the signal departments, which used the mandate to spend on signals and discard the less expensive but equally efficient and safe ARES architecture that did not include wayside signals and included significant business benefits.”
“How can we get this done?”
We asked retired FRA Deputy Associate Administrator for Safety Standards and Program Development Grady Cothen, now a consultant, to weigh in. At the FRA, Cothen, like Ditmeyer at the BN, was intimately involved with PTC, albeit in a position of having to enforce a government mandate.
“We all have an obligation to be forward-looking about this,” he says. “The real issue now is, how can we get this done? We may gripe and point fingers—mostly to blow off steam, like a safety valve—but at some point this has to be put in a positive frame of reference. I am concerned, as I have told others, that the justification recently given to me by a railroad vice president for finishing PTC was that ‘we have invested so much already.’ Granted, this was a governmental affairs guy, but surely he understands the concept of sunk costs. There needs to be positive reasons to do this—safety, corporate image, business benefits, and even a contribution to maintaining a balanced transportation system—that can be recognized and affirmed. This kind of leadership has been missing, except arguably on BNSF. Yet since the mandate, even Matt Rose and his people have been constrained with respect to what they could say publicly.”
“I have tried to ‘out’ the smart people on the railroads who know full well (or should) that there are lots of good things that will come with PTC—even the overlay approach chosen by the ITC railroads,” says Cothen. “It’s interesting that nobody has tried to argue with me. The answer has been silence, which tells me I’m probably not too far off. The passenger railroad principals who wanted out of the mandate have departed their posts or have gotten religion following Metro-North’s Spuyten Duyvil and Amtrak’s Frankford Curve accidents. They will do PTC because they know it has to be done.”
Cothen believes that freight railroad leadership “needs to change its tune, add some talent to the projects, and treat PTC as a building block for the future. Absent leadership, it’s going to be a long road to actually turning PTC on. The implementation problems will be unnecessarily disruptive, and many of the potential benefits will be squandered.”
Union influence?
There are some who believe that the railroad unions wielded considerable influence when the PTC legislation was drafted. That, according to Cothen, is only partially correct:
“The Senate Commerce Committee produced the final language,” he says. “The California senators were a major influence, but the committee of jurisdiction had the final say. I believe AAR influence was prominent. In my experience, union influence was not as substantial as one would expect. By 2008, the United Transportation Union knew already that BNSF wanted to use PTC to move to one-person crews—BNSF had proposed it in a Product Safety Plan filing, later withdrawn. The Brotherhood of Railway Signalmen was concerned over potential removal of signal systems.”
“I have no doubt that the BRS, along with the UTU and Brotherhood of Locomotive Engineers and Trainmen, influenced [the late Rep. Jim] Oberstar in the drafting of the RSIA,” adds Steve Ditmeyer. “Both the RSIA and the subsequent FRA PTC regulations, however, set performance requirements, not design or configuration standards. Consequently, neither the RSIA nor the FRA’s PTC regulations required railroads to replace their old signals with new ones or to tie their PTC systems to each of the new signals with wayside interface units and data radios. Those decisions and requirements were made in the ITC Committee meetings, which were closed to union members. And all attendees were required to sign non-disclosure agreements. When a railroad submitted its PTCIP (PTC Implementation Plan, required by FRA), and said it intended to replace its old signals and to tie its PTC system to the new signals with wayside interface units and data radios, and if FRA accepted the PTCIP as meeting its safety standards, then the railroad was obliged to follow its PTCIP.”
“I don’t discount BRS input, given that the UTU and the BLET had their hands on the throttle with Oberstar through the whole legislative process,” adds Frank Wilner. “Labor took no back seats during Oberstar’s reign. BRS, understandably out of self-interest, monitors these events carefully. One could argue they would have access to new technology jobs, but, in context, you saw how UTU deep-sixed the BNSF offer for job security, higher pay and access to new jobs were UTU to accept engineer-only on PTC-equipped lines. For sure, at meetings involving planning for PTC architecture, labor relations would have played an important role in addressing perceptions and likely actions by labor re: scope agreements with BRS. Moreover, UTU and BLET have always stressed the ‘overlay’ nature of PTC to bolster the arguments for retention of two-person crews. Two engineers is BLET’s fervent, but not admitted, hope.”
“I don’t assume, at all, that lobbyists understand the concept of sunk costs,” says Wilner. “Nor do I recognize anyone bold enough among rail lobbyists today who would say Job No. 1 is to change the statute and allow railroads to find and invest in the most efficient, productive and cost-effective of technologies. My suspicion is that back in 2008 and before, railroads wrongly assumed that a public-private partnership would subsidize much of PTC, so they did not put up a fight against rail labor and bought into an overlay architecture. Certainly it was in the interests of the BRS to perpetuate, expand and renew wayside signals. Not to be overlooked are the short horizons of many CEOs. Decisions in 2008 that had a December 2015 deadline may have been assimilated as, ‘Well, I’ll be retired by then.’ Public choice theory is a powerful explanation of self-serving, short-sighted, path-of-least-resistance behavior.”
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(ACC Mentioned) Energy Influence: McGinty Taps Energy Money, But Toomey Has Head Start
Nov 4, 2015 | PoliticoPro
By Alex Guillén
McGinty opens up deem energy money floodgates: It’s clear whom energy donors on the Democratic side of Pennsylvania’s Senate race are favoring: Katie McGinty. The former head of the White House Council on Environmental Quality raised over $137,000 from energy donors between announcing her Senate campaign Aug. 4 and the end of September — nearly 14 percent of her overall fundraising, according to POLITICO's review of campaign-finance disclosures.
Her donor list includes environmental attorney Robert F. Kennedy Jr.; former FERC Chairman James Hoecker; Climate Reality Project President and CEO Kenneth Berlin; former Sierra Club chief Carl Pope; philanthropist Lawrence Linden; former Pennsylvania DEP chief John Hanger; and Clinton Vince, head of the energy practice at the law firm Dentons.
McGinty seems to be the candidate of choice for blue-leaning energy and environment donors, thanks in no small part to her strong connections in Washington. In addition to her time advising Al Gore and Bill Clinton on environmental issues, she spent time as Pennsylvania’s Department of Environmental Protection and most recently was chief of staff for Gov. Tom Wolf, who beat her in the Democratic primary for the job.
The other Dem: Meanwhile, former Rep. Joe Sestak, the other major Democrat in the race who is once again running against Republican Pat Toomey, has gotten virtually nothing from energy interests — just over $3,500, out of nearly $1.6 million raised.
But Toomey has a head start: The sitting senator has also landed a significant chunk of energy money since the beginning of the year: $246,000, half of which comes from energy PACs. Toomey’s list includes PACs connected to Koch Industries, Chevron, ExxonMobil, ConocoPhillips, Halliburton, Chesapeake Energy, Marathon Petroleum, Valero, Anadarko, Devon, Exelon, Duke, DTE, Dominion, Westinghouse, Spectra, NiSource, Nucor, Arch Coal and most of the major oil, gas and nuclear trade associations.
Toomey has also cleaned up among executives at major energy companies, including Chevron CEO John Watson; Exelon President and CEO Chris Crane and former CEO John Rowe; PECO Energy President and CEO Craig Adams; PSEG Power President and COO William Levis; Pennsylvania Coal Alliance CEO John Pippy; and Frank Calandra, founder of the mining equipment manufacturer Jennmar.
IT’S A BIRD, IT’S A PLANE, IT’S … SUPER PAC! A Pro-Toomey super PAC, Prosperity for Pennsylvania, was infused earlier this year with a $100,000 check from Lehigh Gas, a Pennsylvania-based gas station leaser and fuel supplier that was sold last year to a Texas outfit for $17 million. The pro-Toomey super PAC has also raised eyebrows because it took a total of $75,000 from Toomey’s leadership PAC, Citizens for Prosperity in America Today. Campaign finance experts believe it’s the first time a candidate’s leadership PAC gave to a supportive super PAC — and warn that if the super PAC spends that money backing Toomey, it could evolve into illegal candidate-super PAC coordination.
WELCOME TO ENERGY INFLUENCE, our newsletter for Pro subscribers on campaign finance and lobbying in the energy world. In this edition, we find out whether a Koch brother just blew a hundred grand, check in on key Senate races and discover which energy folks have been fundraising for Hillary.
Have tips or suggestions? Email me at aguillen@politico.com, or follow me on Twitter: @alexcguillen.
OOPS — DAVID KOCH GIVES BIG TO BOEHNER JUST BEFORE RESIGNATION: Just days before Speaker John Boehner stunned Washington in late September by announcing his plans to resign, David Koch gave $100,000 to a joint fundraising committee that backs the Ohio Republican. The check cleared on Sept. 22, three days before Boehner’s big news, and according to FEC records it’s the second-biggest contribution this year to Boehner for Speaker, a joint fundraising committee that spreads the money between Boehner’s campaign, his leadership PAC and the National Republican Congressional Committee.
Koch isn’t the only one who sent money to Boehner for Speaker right before the big news. FedEx Chairman Fred Smith, for example, is marked as giving more than $66,000 to the committee on Sept. 25, though he likely wrote his check before that date. The committee reports bringing in over $683,000 between Sept. 22 and Sept. 25, including the contributions from Koch and Smith. It’s not immediately clear whether or how much of that money will be returned.
IT’S GOOD TO BE THE CHAIRWOMAN: Senate Energy and Natural Resources Chairwoman Lisa Murkowski, who has yet to attract a Democratic challenger or a primary opponent, had her best quarter yet in terms of energy money raised and percent of overall fundraising that came from energy sources. The Alaska Republican raised just under $300,000 from energy donors in the third quarter, a whopping 35.6 percent of the $836,000 she received overall.
Murkowski’s Q3 donors include: ExxonMobil chief Rex Tillerson; Chevron CEO John Watson; Dallas oilman Ray Hunt; PG&E CEO Anthony Earley Jr.; Energy Transfer Chairman and CEO Kelcy Warren; Sempra Energy Chairman and CEO Debra Reed; Sempra LNG president Octavio Simões; plus various executives at offshore oil and gas services firm Edison Chouest. PAC donors include Chevron, NextEra, Tesoro, BP, Ameren, AEP, Entergy, Whiting Petroleum, Halliburton, Tenaska, Xcel, Devon, Teco, ANGA, the American Wind Energy Association and the Petroleum Marketers Association of America.
So far this year, $737,000 of the $2.7 million Murkowski has raised, more than 27 percent, has come from energy sources.
Mountain woman: Murkowski’s leadership PAC, Denali, has yet to really heat up. FEC records show it had just under $99,000 cash on hand at the end of June, the latest date for which data was available. Things are likely to change soon, if the 2014 cycle is any indication. Denali dropped more than $470,000 during that election, mostly on Republican Senate candidates. In the first half of the year, Denali sent money to Pat Toomey, Johnny Isakson, John Hoeven and Mark Kirk, as well as the National Republican Senatorial Committee. Donors include McKie Campbell, Murkowski's former committee staff director who is now a consultant; former Rep. Denny Rehberg (R-Mont.); Frank Macchiarola, a top executive at America's Natural Gas Alliance; and PACs connected to the National Rural Electric Cooperative Association, Edison Electric Institute, Dominion, NextEra, PPL, Southern Co. and Babcock & Wilcox.
Fundraising steak and potatoes: Murkowski's campaign hit up a D.C. fundraising hotspot Monocle, where it reported spending $3,244 on catering in the third quarter. The campaign dropped by a number of other popular Washington fundraising restaurants, including Charlie Palmer Steakhouse, Bistro Cacao and Johnny’s Half Shell, in addition to Alaska joints like Big Daddy's Barbeque in Fairbanks and Sweet Basil in Anchorage.
Murkowski’s campaign also reported spending $272.58 on Sept. 2 at California Wine Tours, which runs corporate tours of Napa wineries. A campaign spokesman on Wednesday didn’t immediately return a request for comment about the spending.
PORTMAN LEADS IN OHIO ENERGY MONEY: Incumbent Sen. Rob Portman (R-Ohio) has a solid lead in energy money over the two Democratic candidates, pulling in nearly $385,000 this year from energy sources. That represents only about 5 percent of the $7.7 million Portman has raised so far this year, but it puts him significantly ahead of the Democrats in the race, frontrunner and former Gov. Ted Strickland, and Cincinnati councilman P.G. Sittenfeld.
Portman’s donor list includes: Charles Koch; America’s Natural Gas Alliance chief Marty Durbin; Freeport-McMoRan Chairman James Moffett; Freeport-McMoRan Oil & Gas Chairman and CEO James Flores; FirstEnergy President and CEO Anthony Alexander; Dallas oilman Ray Hunt; Devon Energy co-founder Larry Nichols; Pinnacle West Chairman Donald Brandt; AEP chief Nick Akins; former AEP Chairman Michael Morris; former Nucor CEO Daniel DiMicco; Plains All American Pipeline President Harry Pefanis; and National Association of Manufacturers President Jay Timmons.
Portman raise over $62,000 just from a raft of Marathon Petroleum executives, including President and CEO Gary Heminger, Executive Vice President Donald Templin, and most of the rest of the company’s corporate officers. Portman has also pulled in more than $17,000 from AEP executives and $10,000 from Pinnacle West and Arizona Public Service employees.
More than 40 percent of Portman’s energy haul, $161,000, has come from PACs, including Koch, Centrus, Cheniere, Chesapeake Energy, Chevron, ConocoPhillips, Duke, AEP, POET, Exelon, AES, Energy Transfer Partners, NiSource, Alpha Natural Resources, Arch Coal, Vectren, the Ohio Coal Association, the National Mining Association, the American Petroleum Institute, the American Public Power Association, Edison Electric Institute and the American Chemistry Council.
AS FOR THE OHIO DEMS: Strickland has gotten about 1 percent of his haul, $30,000, from energy sources. That includes checks from Cheniere Vice President Ankit Desai, a noted Democratic fundraiser; Melissa Lavinson, PG&E's vice president for federal affairs; and ITC Holdings exec Daniel Oginsky. POLITICO also counted $5,400 from George Soros, known for his climate philanthropy. Sittenfeld has raised just $5,000 in energy money. His biggest energy-related donor is Tiernan Sittenfeld, senior vice president for government affairs at the League of Conservation Voters — and the candidate's older sister.
ENERGY NAMES ON HILLARY’S BUNDLER LIST: Hillary Clinton’s third-quarter bundler list continues to boast several top names from the energy world. Ankit Desai raised $57,300 last quarter, while Growth Energy CEO Tom Buis brought in $35,250. Former Senate Energy and Natural Resources Chairwoman Mary Landrieu, now at Van Ness Feldman, raised another $18,100 for Clinton. Most of Clinton's other Q3 bundlers were lobbyists, though many have energy-related clients. Bundler disclosures for Jeb Bush, Marco Rubio and Chris Christie didn't show any energy-specific fundraisers.
ICYMI — LANDRIEU LANDS FIRST CLIENT: Mary Landrieu will lobby on behalf of the FutureGen 2.0 carbon capture project. The Louisiana Democrat, who joined Van Ness Feldman after being unseated by Sen. Bill Cassidy last year, will work for the FutureGen Industrial Alliance, Inc. on funding for the project. The Energy Department spent $200 million of the $1 billion-plus destined for the FutureGen 2.0 project before delays in financing and legal challenges meant important milestones would be missed. In January, DOE pulled the plug on its funding, leaving the project adrift without a major source of dollars.
Others on the account include Robert Nordhaus, a former FERC and DOE general counsel, and Shannon Angielski, associate director of the Coal Utilization Research Council, an industry coalition. This is Landrieu's first registered lobbying client. Senate rules bar former senators from lobbying Congress for two years, but Landrieu is free to lobby federal agencies. FutureGen already has a lobbying contract with former House Majority Leader Dick Gephardt.
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Oil Industry Warns Against Merkley-Sanders Bill
Nov 5, 2015 | E&E Daily News
By Amanda Reilly
The oil industry yesterday came out swinging against new legislation that would curb drilling on public lands.
Calling the proposal a "political stunt," the American Petroleum Institute warned that the bill would add to energy costs and hurt the federal government's coffers. Sens. Jeff Merkley (D-Ore.) and Bernie Sanders (I-Vt.) introduced the legislation yesterday to halt all new leases and all nonproducing leases for oil, gas and coal extraction on federal lands.
The proposed legislation would also halt leasing activities for offshore drilling in the Pacific Ocean and Gulf of Mexico and block offshore drilling in the Arctic and Atlantic Ocean.
"This extreme proposal is anti-consumer and anti-jobs," API Executive Vice President Louis Finkel said. "It could significantly raise energy costs, destroy tens of thousands of well-paying American jobs, eliminate billions of dollars in federal revenue and put a big dent in one of the few bright spots of our economy."
Democratic Sens. Ben Cardin of Maryland, Barbara Boxer of California, Kirsten Gillibrand of New York, Patrick Leahy of Vermont and Elizabeth Warren of Massachusetts are original co-sponsors.
Merkley, Sanders and environmentalists are lauding the legislation as opening a new front in the grass-roots movement against fossil fuels after the battles against the Keystone XL pipeline and drilling in the Arctic (E&E Daily, Nov. 4).
Yesterday, environmental groups attended the unveiling of the legislation on the lawn in front of the Capitol holding blue and white signs that read, "Keep it in the ground."
According to the bill sponsors and supporters, halting leasing activities on federal lands is vital to address climate change, given that large amounts of the world's fossil fuel reserves are located on U.S. federal lands.
"Phasing out coal, gas and oil production on our federal lands and waters must be part of our broader strategy to shift from dirty fuels that drive climate change to clean energy," said Rhea Suh, president of the Natural Resources Defense Council.
But API said that the bill would make the United States more dependent on foreign oil and mean billions of dollars in lost tax revenue. According to the Department of the Interior, revenues from the sale of natural resources on federal lands totaled $127.4 billion from 2003 to 2013.
The bill is "a political stunt by those who are spouting populist rhetoric for political points," Finkel said. "They are not being honest with American voters."
Merkley pushed back against the criticism, saying that the loss in federal revenue brought on by the legislation could be offset by a reduction in the money paid to the coal and oil industry through subsidies.
He also said that the costs of damage from climate change would outweigh the lost revenue.
"What we're talking about is minimizing not billions but trillions of dollars in damage to our future economy," he said.
Still, Merkley and Sanders say that they don't expect the current Republican-controlled Congress to take up a ban on leasing activity on federal lands or to take meaningful action to address climate change.
"If you're holding your breath or thinking about holding your breath waiting for a committee chair to hold a hearing on such an important issue to America and the world -- don't," Merkley said. "Because it's not going to happen at this moment. ... It's going to begin a grass-roots rally across America."
At the press event yesterday, Sanders announced that he would introduce legislation soon aimed at easing the transition for workers from the fossil fuel industry to the renewable energy industry.
The legislation would provide for education opportunities and job-training programs for workers, he said. Similar bipartisan legislation introduced in the House last month seeks to ease the transition for coal industry workers (Greenwire, Oct. 7).
"Workers in the fossil fuel industry, through no fault of their own -- they're just trying to make a living -- are producing a product which is endangering our planet," Sanders said. "And we have the moral responsibility to make sure that, as we transition away from fossil fuels to energy efficiency and sustainable energy, these workers are protected."
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U.S. Says It Won't Pause Keystone XL Review
Nov 5, 2015 | BNA Daily Environment Report
By Larry Liebert, Justin Sink and Rebecca Penty
TransCanada Corp. failed in its attempt to pause the U.S. review of its Keystone XL pipeline, keeping the project where it started the week—unlikely to advance under the Obama administration.
The State Department said Nov. 4 that it has notified the company that the review, in its eighth year, will continue. The department was responding to a letter on Nov. 2 to Secretary of State John Kerry, in which TransCanada requested a suspension of the assessment while Nebraska regulators conduct their own. The request was seen by some analysts as an attempt to circumvent an expected rejection by President Barack Obama, which the company denied.
“It's the death of the project as long as Obama's president,” Bob Schulz, a professor at the University of Calgary's Haskayne School of Business, said in a phone interview. “There's zero percent probability Obama's going to say ‘Yes.' “
Obama has been critical of Keystone XL, one of the most contentious energy issues during his time in office. The U.S. review has split lawmakers and hurt relations with Canada, which is seeking to expand markets for its crude.
The project is one of four major pipeline proposals designed to carry rising volumes of oil-sands bitumen that are mired in delay amid environmental opposition. While Republican presidential candidates for the 2016 election have shown support for Keystone, Democratic candidates have said they oppose it.
“We've told TransCanada that the review process will continue,” State Department spokesman John Kirby told reporters in Washington Nov. 4. He said Kerry wanted to finish work on the review after “all that has gone into it.”
The pipeline builder said that it respects the department's decision and will keep trying to advance the project.
“Our efforts will continue to demonstrate that Keystone XL is in the national interest of the United States,” Mark Cooper, a spokesman for the Calgary-based company, said in an e-mail.
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 supplying U.S. Gulf Coast refineries. Supporters argue the project would create jobs, open markets for Canadian crude and displace U.S. imports of crude from the Middle East and Venezuela.
Seen Increasing Emissions
Environmental activists, including top Democratic donors, have spent heavily in hopes of defeating a project they say would drastically increase emissions blamed for global warming.
Frank Benenati, a White House spokesman, declined to comment Nov. 4 and referred questions to the State Department. A day earlier, the White House press secretary had cast doubt on the justification for halting the review.
“Given how long it's taken, it's—it seems unusual to me to suggest that somehow it should be paused yet again,” Josh Earnest said. Reaching a final decision on the project by the end of Obama's second term remains “the current plan,” he said.
TransCanada Chief Executive Officer Russ Girling, on a Nov. 3 earnings conference call, said the company's request had nothing to do with politics and was meant to let the outcome of a regulatory assessment of the pipeline in Nebraska be considered in the State Department's review. The Nebraska review is due to extend well into 2016.
The bid by the company now looks like an unsuccessful move in a game of chess, said Martin Pelletier, managing director and portfolio manager at TriVest Wealth Counsel Ltd. in Calgary.
“They clearly saw a potential checkmate on the horizon, and they made their best counter move, and the U.S. just called them on it,” Pelletier said. He predicted Obama will deny the line instead of leaving it to his successor, to secure his environmental legacy. “You'll get a rejection.”
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Denial of Keystone Would Be ‘No-Brainer,’ Sanders Says
Nov 5, 2015 | BNA Daily Environment Report
By Dean Scott
Democratic presidential candidate Sen. Bernie Sanders (I-Vt.) said Nov. 4 that it would be a “no-brainer” for President Barack Obama to formally deny the Keystone XL pipeline to put the final nail in the coffin for the project even though the energy company asked for a suspension of its application.
“We need aggressive action in every way” to combat climate change, Sanders said at a news conference in front of the Capitol.
“And I would hope very much that President Obama will stand up as soon as possible and say that the Keystone pipeline is a no-brainer,” he said, to ensure that the carbon-intensive crude from the Albert oil sands remains untapped.
Sanders, along with Sen. Jeff Merkley (D-Ore.), introduced a bill Nov. 4—the Keep Fossil Fuels in the Ground Act of 2015—to bar the issuance of new leases or renewals for coal, oil and natural gas from all federal lands and waters.
TransCanada Corp., a Calgary-based company, requested a suspension of the State Department's review of the project in a Nov. 2 letter while Nebraska regulators decide on the final route for the $8 billion pipeline (212 DEN A-19, 11/3/15).
But the State Department Nov. 4 rejected the suspension request, and environmental groups are pressing Obama to deny the project entirely to guard against it being built under a future administration.
The Merkley-Sanders bill is co-sponsored by Democratic Sens. Ben Cardin (D-Md.), Barbara Boxer (Calif.), Kirsten Gillibrand (N.Y.), Patrick Leahy (Vt.) and Elizabeth Warren (Mass.).
Focus on Role of Public Lands
The bill cites the role of oil, gas and other fossil fuels in contributing to rising global temperatures, stating the “vast majority of global warming that has occurred over the past 50 years was due to human activities.”
Keeping global temperatures from rising 2 degrees Celsius (3.6 degrees Fahrenheit) beyond preindustrial levels—a global goal nearly 200 nations hope to include in a global climate accord to be negotiated at a December summit in Paris—would require the world to “leave in the ground” 80 percent of proven global reserves of fossil fuels, Merkley said at the news conference.
U.S. publicly owned fossil fuel reserves constitute 10 percent of the planet's reserves, the senator said.
“So if we must keep 80 percent of the fossil fuel reserves in the ground then we must keep our United States fossil fuel reserves [that are] owned by the citizens in the ground,” he said.
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House Democrats Float Bill Imposing Pacific Ban
Nov 5, 2015 | E&E Daily News
By Jeremy P. Jacobs
Nearly 20 West Coast House Democrats yesterday introduced legislation that would permanently ban offshore drilling in the Pacific Ocean.
California Democratic Reps. Jared Huffman and John Garamendi led a coalition of 18 legislators predominantly from California, Oregon and Washington in pressing for the moratorium.
"Offshore drilling is inherently dangerous," Huffman said in a statement that referenced the 1969 Santa Barbara, Calif., oil spill, as well as the 2010 Deepwater Horizon disaster in the Gulf of Mexico.
"With this bill, we are thinking of future generations -- and putting their interests above the short-term profits of Big Oil," he said. "Our pristine coastlines and fragile ocean ecosystems deserve nothing less than the permanent protection this bill guarantees."
The "West Coast Ocean Protection Act" is the House version of Senate legislation reintroduced last month (E&E Daily, Oct. 8).
Huffman's bill would amend the Outer Continental Shelf Lands Act, prohibiting any new oil or natural gas leases off the West Coast.
Garamendi said a moratorium would protect coastal community economies valued at $44 billion from a costly spill.
"The Pacific Coast is just not suited for offshore oil platform drilling," he said. "The seas are too rough; the risk of a catastrophic earthquake is too great; and one tragic accident could kill millions of marine animals, ruin miles of coastline and devastate entire industries."
Offshore drilling in the Pacific Ocean is sporadic. The existing platforms were the result of leases that predate a 1982 congressional moratorium.
Congress lifted that ban in 2008, but the Interior Department has yet to propose any new leases.
The Senate version of the bill was first introduced in 2010. It is unlikely either bill will move forward under the Republican-controlled House and Senate.
In addition to Huffman and Garamendi, the bill is co-sponsored by Democratic Reps. Alan Lowenthal, Barbara Lee, Sam Farr, Grace Napolitano, Mike Thompson, Doris Matsui, Jackie Speier, Mike Honda, Eric Swalwell, Lois Capps, Scott Peters and Susan Davis of California; Derek Kilmer and Suzan DelBene of Washington; Earl Blumenauer of Oregon; and Donna Edwards of Maryland.
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Groups to Sue Oklahoma Energy Companies Over Quakes
Nov 5, 2015 | BNA Daily Environment Report
By Paul Stinson
Environmental groups are putting four Oklahoma oil and gas companies on notice that they intend to file a federal lawsuit against them, alleging that earthquakes induced by their waste injection are causing endangerment in central Oklahoma and southern Kansas resulting in environmental and property damage and personal injuries.
In an Oct. 29 letter addressed to the heads of four companies, the environmental groups allege “ongoing violations” of the Resource Conservation and Recovery Act (RCRA), demanding the companies take immediate action to modify their operations in a way that will substantially reduce seismic activity or face legal action in federal district court 90 days following service of the notice.
Issuing a notice of intent letter, Washington-based Public Justice, writing on behalf of Sierra Club, names as defendants the Oklahoma-based energy companies of Sandridge Exploration and Production LLC, New Dominion LLC, Chesapeake Operating LLC and Devon Energy Production Co., alleging RCRA violations “resulting from the injection and disposal of waste fluids from the oil and fracking industries into the ground via wells in Oklahoma.”
Brought into force in 1976, the RCRA allows citizen lawsuits over hazardous waste.
“This injection has caused or contributed to a huge increase in the number and severity of earthquakes being experienced in Oklahoma and southern Kansas,” according to the letter. “These earthquakes have already caused injuries and property damage and are threatening much more damage that is potentially devastating.”
‘Unnecessary and Unwarranted' Suit
Chad Warmington, president of the Oklahoma Oil & Gas Association, called the legal action “completely unnecessary and unwarranted,” pointing to ongoing efforts at the state level, including Oct. 30 testimony delivered by the state oil and gas regulator—the Oklahoma Corporation Commission—before a joint Oklahoma House and Senate committee to address increased seismicity in Oklahoma.
“This is nothing more than business as usual for these groups in their attempts to completely destroy the production of oil and natural gas in the United States,” said Warmington in a Nov. 2 statement.
Oklahoma Sierra Club Executive Director Johnson Bridgwater refuted that claim.
“This lawsuit is not about ‘destroying oil and gas companies,’ it is about more quickly bringing an end to the 18,000 earthquakes that have plagued our state over the past six years,” he said in a Nov. 4 e-mail to Bloomberg BNA. “There are thousands of people experiencing daily stress and anxiety in our state, and they have had enough.”
Increase in Earthquakes
Following a 1975-2008 period that produced 56 earthquakes of magnitude 3.0 or greater, Oklahoma has seen a sharp rise in that category, registering 585 earthquakes of 3.0 or greater in 2014, a five-fold increase from 2013 levels of 109.
The increase of magnitude 3.0 and greater earthquakes “indicates a greater possibility of having a magnitude 4.0 or greater event in the future,” the Oklahoma Geologic Survey notes on the Frequently Asked Questions page of its website.
Oklahoma Corporation Commission spokesman Matt Skinner said the OCC's part in the Oct. 30 hearing “dealt with whether it was clear we had jurisdiction over disposal wells as relates to seismicity,” according to a Nov. 4 e-mail to Bloomberg BNA.
Launched in September 2013, the state uses a “traffic light system” of evolving best practices as a means for addressing seismicity. In May 2014 the OCC instituted a “yellow light,” a measure that has the effect of withholding administrative approval to any disposal well within three miles of a stressed fault or 10 kilometers (about 6.2 miles) of a seismic swarm, regardless of magnitude (58 DEN A-9, 3/26/15).
Fracking Linked to Quakes
“There is overwhelming evidence linking the fracking industry in Oklahoma to the sharp increase in the frequency and severity of earthquakes in the area,” said Robin Greenwald, head of Weitz & Luxenberg's Environmental Toxic Torts Group, a New York-based firm serving as co-lead counsel in the suit.
“This notice [of intent] is a warning for those companies engaged in fracking to eliminate or substantially reduce injection of their production wastes and to take responsibility for the harm they are inflicting upon the people and environment in Oklahoma,” Greenwald told Bloomberg BNA in a Nov. 4 e-mail.
A Stanford University study published in June 2015 found the state's surge in seismic activity is primarily due to dramatic increases in wastewater injections of brackish water coexisting with oil and gas beneath the ground (118 DEN A-9, 6/19/15).
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Backing Requests, EPA Extends Comment Deadline For Oil & Gas Air Rules
Nov 4, 2015 | InsideEPA
By Bridget DiCosmo
EPA is extending by 30 days the comment deadline for its package of Clean Air Act policies affecting the oil and gas sector, including its first-time proposal to regulate methane, in response to requests from states, tribes and industry that additional time was needed to review the four proposed policies and provide feedback.
Several industry groups had also pressed the administration to extend the comment deadline so that they could review EPA's already issued rules in tandem with an upcoming proposal from the Bureau of Land Management (BLM) governing venting and flaring at oil and gas drilling operations on federal lands.
But the 30-day extension that EPA is granting falls short of the 90-day extension that some industry groups had sought, though an American Petroleum Institute (API) official had also called for a 60-day extension to ensure a minimum 30-day overlap between the EPA and BLM rules.
Nevertheless, the extension may give industry representatives an opportunity to bolster their push for the agencies to avoid possible regulatory duplication as a result of the suite of measures the administration is developing.
The agency says in a pre-publication Federal Register notice that it is extending the comment period from the original Nov. 17 deadline until Dec. 4 for its proposed new source performance standards (NSPS) for the oil and gas sector, regional consistency proposal, a proposed federal implementation plan for tribal lands and its draft control techniques guideline (CTG) for the sector.
The proposed NSPS would set first-time emissions limits for methane from the industry, as well as set controls for volatile organic compounds and methane for some sources not regulated under an earlier 2012 NSPS, such as hydraulically fractured oil wells and downstream compressors and other equipment.
The CTGs would be used by states with areas out of attainment with EPA's ozone national ambient air quality standards, while the regional consistency proposed rule is aimed at clarifying oil and gas drilling permitting in the wake of adverse court rulings.
“The EPA has received several letters from trade and business organizations, states and tribes requesting additional time to review and comment on the three proposed rule revisions, and the notice of availability of the draft CTG document,” the Register notice, slated for publication Nov. 5, says.
For example, Colorado Petroleum Association in an Oct. 9 comment filed on the proposed NSPS says additional time is necessary because the proposal differs substantially from Colorado’s methane regulations, and that the group is “concerned these proposed regulations affect several different agencies and Tribes which have a prominent position in Colorado.”
And the Petroleum Association of Wyoming says in Sept. 22 comments that the group is currently reviewing the proposed rules, but that they require additional time to provide comments, given that the proposals are “complex rules with much detail.”
BLM Rule
Other industry groups have raised broader concerns, urging EPA and White House Office of Management & Budget (OMB) officials to extend EPA's comment deadlines so that they can be reviewed in tandem with the pending BLM proposal.
The BLM proposal, which has been under OMB review since Sept. 18, governs venting, which results in methane releases, and flaring, which results in carbon dioxide emissions, of oil and gas production on federal lands
For example, the Western Energy Alliance in an Oct. 16 letter to both EPA and BLM cites “at least eight regulatory efforts” pending at the agencies that are “related either directly or in a connected nature to measuring and reducing methane emissions from the oil and natural gas industry.”
The group calls the rules “complex, highly technical and closely interrelated,” and urges that comment deadlines be extended so that they collectively close 90 days after BLM's proposed venting and flaring rule is released.
The Gas Processors Association in an Oct. 7 letter to EPA offers a similar rationale, calling for a 60-day extension to the NSPS comment period. The group says the regulation is “just one of four regulations EPA proposed simultaneously as part of the President’s 'Climate Action Plan' to reduce methane emissions from the oil and natural gas industry.” Accordingly, “each of these proposed rules needs to be adequately reviewed to understand the full impacts of each rule as well as the collective impacts of these new regulations,” the group says.
During a Sept. 25 public hearing on EPA's proposed rules, American Petroleum Institute's (API)'s Matthew Todd said EPA and BLM should coordinate the rulemakings to allow a minimum of 30 days overlap, which would require EPA to extend its comment deadline of Nov. 17 by 60 days. “Without this overlap, industry will not have the chance to understand the cumulative impacts and provide meaningful feedback to avoid conflicting requirements across the separate agencies,” he said.
Industry representatives also urged OMB and other administration officials at an Oct. 14 meeting to ensure the BLM rule would be “well coordinated” with EPA's suite of methane proposals for the sector, according to a source familiar with the issue. Meeting attendees included API, BP America, Conoco-Phillips, ExxonMobil, and XTO. “There will be overlap and we hope not inconsistency or conflict,” the source says.
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States Ask To Defend Obama’s Climate Rule In Court
Nov 4, 2015 | The Hill - E2 Wire
By Timothy Cama
Eighteen liberal states are asking to join in federal litigation to help the Obama administration defend its climate change regulation for power plants.The states, led by New York, plan to argue to federal judges that the Environmental Protection Agency (EPA) is both allowed and obligated to set limits on carbon dioxide pollution that comes from power plants.
They will be opposing 26 states, led by West Virginia, that filed lawsuits challenging the rule in the Court of Appeals for the District of Columbia Circuit, along with dozens of corporations and industry groups.
“The EPA’s Clean Power Plan is a critical step forward in responding to the threat of climate change,” New York Attorney General Eric Schneiderman said in a statement Wednesday, the day the states filed their petition to intervene in the litigation.
“The rule is firmly grounded in science and the law,” he said. “The rule incorporates successful strategies New York and other states have used to cut climate change pollution from power plants while maintaining electricity reliability, holding the line on utility bills, and growing our economies. We are committed to aggressively defending the Clean Power Plan to ensure progress is made in confronting climate change.”
The attorneys general of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia and Washington joined the petition, along with Washington, D.C.; New York City; Boulder, Colo.; Chicago; Philadelphia; and South Miami and Broward County, Fla.
Vermont and Hawaii do not have to reduce emissions under the regulation.
The states and cities wrote in their court petition that they “have a compelling interest in defending the Clean Power Plan as a means to achieve their goal of preventing and mitigating climate change harms in their states and municipalities.”
They also plan to argue in the court against motions from EPA opponents to obtain a court stay for the rule, which would halt its implementation while it is litigated.
Forty-four states have now taken sides in the litigation surround the EPA’s rule.
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States Come to EPA's Defense Over Carbon Standards
Nov 5, 2015 | BNA Daily Environment Report
By Andrew Childers
Eighteen states, including New York and California, Nov. 4 joined the Environmental Protection Agency in its efforts to defend the Clean Power Plan in lawsuits brought by several other states and industry groups (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion to intervene 11/4/15).
“This is a smart plan. This is the right plan. It reflects strategies we have seen and used here in our states that are working,” Massachusetts Attorney General Maura Healey told reporters.
The EPA's Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state that will be implemented by state regulators.
Sixteen of the same states filed a similar motion with the U.S. Court of Appeals for the District of Columbia Circuit Nov. 4 to intervene on behalf of the EPA in challenges to its new source performance standards (RIN 2060-AQ91) for carbon dioxide emissions from new power plants as well (North Dakota v. EPA, D.C. Cir., No. 15-1381, motion to intervene 11/4/15).
The litigation over the two rules has embroiled nearly every state, with 26 already bringing challenges to the Clean Power Plan and another 24 states filing lawsuits against the new source performance standards. The rules also are being challenged by several industry groups as well as some unions.
The litigation has occasionally exposed rifts between state officials as some attorneys general and governors are split over whether to challenge or implement the EPA's rules.
Iowa Gov. Terry Branstad (R) has opposed the EPA's Clean Power Plan, but state Attorney General Tom Miller (D) is joining the fight to defend the rule.
Parties Have ‘Different Views.'
“That's happened on occasion in the last few years, which is not surprising,” Miller told reporters. “We're in different parties and have different views on the issues such as the relationship with the federal government.”
California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland,, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington, along with the District of Columbia; Boulder, Colo.; New York City; Chicago; Philadelphia; South Miami and Broward County, Fla., joined the motion to intervene in the Clean Power Plan litigation.
Those same states, with the exception of Virginia and Minnesota, also have filed to defend the new source performance standards along with New York City and the District of Columbia.
Several environmental groups, including the American Lung Association, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Environmental Defense Fund, have already filed motions to intervene on the EPA's behalf as well (208 DEN A-1, 10/28/15).
EPA Authority Defended
Opponents of the Clean Power Plan are expected to argue the EPA has exceeded its Clean Air Act authority by imposing carbon dioxide emissions limits on the power sector in each state (201 DEN B-1, 10/19/15).
But the attorneys general defending the rule said the requirements are a logical extension of the agency's regulatory power and fall in line with U.S. Supreme Court precedent.
“This is exactly what cooperative federalism looks like, and it's a hallmark of our national environmental laws,” Healey said.
New York Attorney General Eric Schneiderman (D) said the EPA's rule follows the Supreme Court's 8-0 decision that the agency's Clean Air Act authority to regulate carbon dioxide emissions displaced federal common law climate change lawsuits (Am. Electric Power v. Connecticut,, 131 S. Ct. 2527, 72 ERC 1609 (U.S. 2011) ).
In that decision, the Supreme Court had specifically highlighted the EPA's authority to regulate carbon dioxide emission under Section 111 of the Clean Air Act, as it has done for power plants.
Agency Responding to Supreme Court Ruling
“They are doing what the Supreme Court said they should do,” Schneiderman said. “EPA absolutely has the authority to issue a plan like this.”
States opposed to the Clean Power Plan, led by West Virginia, have sought to have the rule stayed during the litigation. Additional motions to stay the rule are due Nov. 5.
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EPA Cites OMB Review Of Utility MACT Cost Finding To Fight Vacatur Call
Nov 4, 2015 | InsideEPA
By Stuart Parker
EPA is citing its submission of a new utility air toxics rule cost assessment for White House pre-publication review to boost its opposition to critics' calls for a federal appeals court to vacate the underlying regulation, with the agency arguing the cost finding is evidence that it is working to address concerns about the rule raised in a Supreme Court ruling.
In a Nov. 4 response brief, the Department of Justice (DOJ) on EPA's behalf reiterates that the most appropriate course is for the court to remand the maximum achievable control technology (MACT) emissions rule to the agency, without scrapping it. This is based in part on EPA's assertion that it can quickly remedy the failings identified by the high court, using its existing cost-benefit analysis that EPA conducted when it developed the regulation.
The Supreme Court in its 5-4 ruling from June in Michigan v. EPA faulted the agency for not considering costs in its initial determination that the MACT issued in 2011 was “appropriate and necessary” under the Clean Air Act. Critics say this undermines the basis for the rule and therefore it should be vacated.
The justices did not address the merits of the emissions standards or other aspects of the rule and sent litigation over the rule back to the D.C. Circuit. The appellate court in White Stallion Energy Center, et al. v. EPA et al. is now weighing how to proceed, including remand without vacatur or outright vacatur.
EPA and its supporters say that the agency is moving quickly to address the Michigan ruling by crafting a new proposed finding that the utility MACT is still appropriate and necessary. DOJ in previous filings has suggested that the review will find that projected compliance costs are lower than when the MACT was first written.
Countering industry allegations that EPA may not quickly respond to the high court's ruling, DOJ says in the Nov 4 brief that, “EPA’s commitment to expedited action is not 'in question.' . . . EPA has already taken steps toward proposing a supplemental finding based on a consideration of cost consistent with its representation that it would complete 'a proposed consideration of cost in the next few months,'” quoting acting agency air chief Janet McCabe.
“EPA submitted a notice outlining its proposed action on remand to the Office of Management and Budget [OMB] on October 21, 2015, and regulatory review is already underway,” DOJ adds. OMB review typically takes 90 days but can take more or less time, and OMB's website does not project a completion date for the MACT finding review.
DOJ also argues, however, because the new cost assessment is not yet even at the stage of public proposal, attacks on it by the Utility Air Regulatory Group (UARG) and other industry groups in the current litigation are premature. “EPA has not taken final action relying on any particular consideration of cost to determine whether to affirm the finding -- EPA has not yet even issued a proposed finding,” DOJ says.
“Joint Petitioners and UARG will have the opportunity to comment on EPA’s proposed approach and challenge its final determination if EPA concludes that regulation of power plants remains appropriate after considering cost. Joint Petitioners’ and UARG’s arguments are not ripe for review at this time,” DOJ adds.
DOJ further notes the harmful disruption to both the environment and the utility industry that would result from the D.C. Circuit scrapping the rule due to lost benefits from emissions controls.
Echoing these arguments, environmentalists in their own Nov. 4 response brief stress the harm that an outright vacatur of the MACT rule would cause through higher pollution from power plants, and the relative lack of consideration of environmental and public health harms in industry briefing. Meanwhile, industry petitioners in a Nov. 4 response brief reiterate their position that the court must vacate the MACT in its entirety, because the “appropriate and necessary” finding is invalid. EPA cannot overcome this by promising to quickly issue a fix for the finding, they argue.
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Advocates Press EPA For Strict Biomass Policy In ESPS Compliance Plans
Nov 4, 2015 | InsideEPA
By David LaRoss
Environmentalists are pressing EPA to include strict controls on burning biomass at power plants as it crafts an implementation plan and model pollution trading framework for its greenhouse gas (GHG) rule for existing power plants, underscoring the doubts over how the rule will ultimately treat wood and other biomass fuels.
Sources with the Partnership for Policy Integrity (PPI) and Environmental Advocates of New York say the groups are meeting with top EPA officials to urge them against modeling state or federal compliance plans for the rule on either California's GHG trading program or the Northeast Regional Greenhouse Gas Initiative (RGGI) trading plan. The sources claim that both programs do too little to account for GHG emissions from biomass.
“I think it's really early in the game to say what states are going to do, especially since some of them seem inclined to stretch out this process as long as possible. But RGGI is being discussed as a model for trading regionally and nationally -- other states that are not part of the groups may nevertheless use what they develop. So we want to make them aware of what that policy would mean for biomass,” says a source with PPI.
EPA's existing source performance standards (ESPS) for power plants sets GHG reduction goals but defers to states on crafting GHG reduction plans to comply. If a state refuses to craft a plan or submits a plan that EPA rejects, the agency could then use Clean Air Act authority to craft a GHG reduction plan directly for those states. Some states are expected to pursue GHG trading mechanisms such as RGGI as a compliance option.
But it is unclear what action, if any, the agency is contemplating in response to the fight over biomass' role in such plans. A source with Environmental Advocates says EPA Region 2 officials were in “listening mode” at an Oct. 8 meeting with Regional Administrator Judith Enck. At that meeting, environmentalists urged Enck to hold Mid-Atlantic states to a strict standard in accounting for biomass' GHG emissions in their compliance plans.
The PPI source says that group has held similar meetings with officials in Region 4 covering Southeast states and Region 5 covering Midwest states, but has also seen no firm response from the agency.
PPI is planning to make a similar call for strict biomass controls in formal comments on EPA's proposed federal implementation plan (FIP), which would apply to states that do not develop their own implementation plans for the power plant GHG standards. It is also urging local advocates to ask state regulators for strict biomass rules directly, according to a presentation for a Nov. 4 webinar hosted by the group on biomass “loopholes” in the ESPS, also known as the Clean Power Plan.
PPI says EPA should avoid setting biomass requirements in the FIP that are less-stringent than those likely to be imposed in state-crafted plans. A lenient FIP would “reward states for their failure to submit a state plan,” says the presentation.
Neither the Northeast and Mid-Atlantic states' RGGI nor California requires power plants burning “sustainably harvested” biomass -- which can include wood -- to purchase GHG-reduction credits to offset their emissions. Industry has long claimed that sustainable biomass is carbon neutral because forest regrowth will eventually sequester the carbon dioxide (CO2) released.
But many environmentalist groups have countered that biomass combustion should be subject to the same restrictions as fossil fuels because the initial burn releases CO2 at a rate of approximately 3,000 pounds per megawatt-hour, higher than the emissions from coal. Those emissions will produce immediate impacts while re-sequestration can take decades -- longer than the 2030 final compliance date for the GHG rules, the sources say.
“At the smokestack, it emits more CO2 than coal. If you're assuming that that is somehow offset over time, then you have to be able to show that, in detail, for each source you burn -- and even then the carbon debt payoff times that are being calculated for bioenergy are really extraordinarily long,” the PPI source says.
Detailed Verification
PPI and Environmental Advocates are asking EPA and states to include in any biomass policy a detailed system for verifying that feedstock being burned is actually coming from a sustainable source. Proponents say that this will be difficult but is necessary to confirm proper accounting for wood claimed as waste that would otherwise be left to rot, or as the product of sustainable harvesting.
“There is no model existing out there that really does it right, certainly for carbon trading, that values emissions from wood-burning power plants properly,” the PPI source says.
The sources say proper accounting for biomass is particularly significant because of the competitive advantage given to any fuel declared carbon-neutral under the ESPS. “If you're part of the grid but not required to buy credits, you've got a leg up from the beginning,” the PPI source says.
Despite their push for stringent accounting of biogenic CO2 emissions, the sources say they are unlikely to win a decision to count all biomass combustion as equivalent to burning fossil fuels, in part because of the industry push to count at least some biomass energy as carbon-neutral. Industry “would scream bloody murder if you say 'we're just going to regulate the CO2 coming out of the stack,'” the PPI source says.
EPA's proposed FIP, which the agency floated alongside the final utility GHG rules on Aug. 3, includes a request for input on which sources regulators should count as “qualified biomass” recognized as a valid compliance method under the plan.
Putting off a decision until the final FIP gives EPA's Science Advisory Board time to complete its review of the agency's methods for estimating emissions from biomass, but also prolongs uncertainty for stakeholders waiting to see what kinds of biomass will be considered carbon-neutral under the rules.
EPA released the revised framework late last year, encompassing formulas regulators can use to determine whether burning biomass represents a carbon-neutral power source, a reduction of emissions from fossil fuels, emissions that must be fully counted on par with fossil fuels, or somewhere in between.
A policy memo issued alongside the framework and signed by acting air chief Janet McCabe generally says that if biomass is sustainably produced and harvested, it can be used as a carbon-neutral compliance mechanism, but EPA has yet to define what practices it considers “sustainable.”
While environmentalists have been frustrated with EPA's reluctance to spell out its position on biomass, the PPI source says the ongoing public input process gives advocates some hope that regulators will ultimately decide on a strict regulatory regime. “The fact is that they're still looking for comments on some of these kinds of questions. So from the Clean Power Plan perspective, some of this is still in play -- at least, ostensibly. They may have already made up their minds, and we wouldn't know,” the source says.
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Senate Votes to Overturn EPA Water Rules
Nov 5, 2015 | The Wall Street Journal
By Amy Harder and Naftali Bendavid
The Senate on Wednesday voted to disapprove regulations aimed at bringing more waterways under federal protection, employing a rarely used legislative tool that allows Congress to nullify new federal rules with a simple majority.
The action, under the Congressional Review Act, comes one day after the Senate failed to get the 60 votes necessary to rescind the regulations using more traditional legislative methods.
Wednesday’s 53-44 vote may be largely symbolic, since President Barack Obama is likely to veto any legislation reaching his desk that seeks to overturn the water rules. The House and Senate would be unlikely to muster the two-thirds majorities required to override a veto.
The water regulations, issued by the Environmental Protection Agency and U.S. Army Corps of Engineers, were slated to take effect earlier this year, but a federal court has temporarily suspended the rules while legal challenges play out.
Sen. James Inhofe (R., Okla.), chairman of the Senate Environment and Public Works Committee, said after the vote he wouldn’t give up trying to block the regulations.
“I remain committed to bringing common-sense legislation back to the Senate floor to stop the rule in its tracks,” Mr. Inhofe said. “Our nation’s farmers, ranchers, and private land owners should not have to suffer from a heavy-handed EPA while this rule is being overturned in the courts.”
But Sen. Barbara Boxer (D., Calif.), the committee’s top Democrat, said Mr. Obama would be right to veto the measure.
“Senate Republicans continue to attack our landmark environmental laws, and this resolution would weaken the Clean Water Act, putting our children and families at risk because it takes away protections for drinking water for one in three Americans, or 117 million people,” Ms. Boxer said.
The new regulations, if they survive the court challenges, would put about 3% more of the nation’s waterways under federal protection. That means a permit would be required to release pollutants into the waters. Major waterways, including most rivers and lakes, already fall under the Clean Water Act and wouldn’t be affected.
The Obama administration has argued that the new rules are needed to clarify which bodies of water are covered by the Clean Water Act following Supreme Court decisions that raise questions about whether smaller streams and wetlands are affected.
But critics say the new regulations amount to an impermissible extension of federal power into areas that should be controlled by the states.
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Senate Passes Measure to Kill Water Rule; Fight to Continue
Nov 5, 2015 | BNA Daily Environment Report
By Anthony Adragna
The Senate passed a resolution Nov. 4 by a 53-44 vote that would immediately nullify a regulation from President Barack Obama's administration to clarify the scope of the Clean Water Act, but the measure fell well short of the 67 votes it would need to overcome a sure presidential veto.
House and Senate Republicans hailed the measure's passage and vowed to continue fighting the waters of the U.S. regulation on multiple fronts. Those efforts are likely to include a renewed push on stand-alone legislation, a policy rider in appropriations legislation and additional votes on Congress on the Congressional Review Act challenge.
“We've just begun to fight,” Sen. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, told Bloomberg BNA.
The resolution (S.J. Res. 22), sponsored by Sen. Joni Ernst (R-Iowa), passed the chamber by a simple majority a day after the Senate failed to invoke cloture on standalone legislation—the Federal Water Quality Protection Act (S. 1140)—which would have forced the Environmental Protection Agency and U.S. Army Corps of Engineers to redo their joint regulation under strict congressional instructions (213 DEN A-18, 11/4/15).
The waters of the U.S. rule (RIN 2040–AF30) has been controversial 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 (see related story).
House to Take Up Resolution
In a statement to Bloomberg BNA, House Majority Leader Kevin McCarthy (R-Calif.) said his chamber would take up the Senate-passed resolution nullifying the regulation in the “coming weeks.”
“The House remains committed to ditching this rule and I look forward to House consideration of this resolution in the coming weeks,” McCarthy said. “If the President holds firm on his threat to veto, he will have to explain why he thinks disregarding the people and the courts to expand the power of Washington's bureaucracy is the best way to move our country forward.”
Action in the House would come after three Democrats—Sens. Joe Donnelly (Ind.), Joe Manchin (W.Va.) and Heidi Heitkamp (N.D.)—joined with all Republicans except Sen. Susan Collins (Maine) to support the Congressional Review Act resolution to nullify the regulation and prevent the administration from ever issuing a significantly similar version. Sen. Claire McCaskill (D-Mo.), who backed the stand-alone bill Nov. 3, did not support the resolution of disapproval.
Republicans Sens. Marco Rubio (Fla.), David Vitter (La.) and Lindsey Graham (S.C.) did not vote.
“We're going to use every technique that we can to get this passed,” Sen. John Barrasso (R-Wyo.), who sponsored S. 1140, told Bloomberg BNA.
Return of S. 1140?
One option available to opponents of the waters regulation would be tweaking S. 1140 and bringing it up for a vote again. Inhofe said he would support doing that after 11 Democratic and Independent senators opted not to support the Barrasso bill but expressed concerns with the underlying regulation.
Those 11 senators instead sent a letter Nov. 3 to the EPA and corps urging clearer guidance for the rule's implementation while suggesting they could change their votes in the future. Inhofe called that position “indefensible.”
Barrasso told Bloomberg BNA the moderate Democrats and independent senators likely felt they needed “some kind of cover” from their decisions not to support the legislation.
“It seemed to me that they were people that were either pressured or bullied into voting due to threats of the leader of their caucus,” the Wyoming Republican said. “They voted in a way that they knew was wrong for their constituents, wrong for their states and yet voted that way anyway.”
Inhofe said he planned to discuss with Barrasso bringing up a tweaked version of S. 1140 again to force the senators to vote again to promote “accountability.”
“I would encourage Barrasso to bring it up again because I know there are a lot of people out there in those states that are pretty upset,” Inhofe said.
Likely Policy Rider
Several senators said the passage of the resolution suggested that a policy rider addressing the waters of the U.S. regulation would be a good candidate for inclusion in legislation to fund the government.
“That ought to be one of the issues that should be negotiated as part of the omnibus,” Sen. John Cornyn (R-Texas), the chamber's No. 2 Republican, told reporters. “This idea that there won't be any riders as part of the omnibus is just ridiculous.”
But would that policy rider take the form of Barrasso's stand-alone legislation or the Ernst resolution nullifying the regulation?
“That's subject to negotiation,” the Texas Republican said.
Democrats Shrug Off Vote
Several Democratic senators said the resolution was a waste of time because it stood no chance of surviving a veto from Obama.
“It's nothing going anywhere—thank goodness—because it rolls back a rule that has been very well thought out,” Sen. Barbara Boxer (D-Calif.), ranking member of the Senate Environment and Public Works Committee, told Bloomberg BNA. “It's going to be vetoed, and we're going to uphold the veto, and that's it.”
Sen. Ben Cardin (D-Md.), one of the most outspoken supporters of the regulation, said Congress should not turn the jurisdiction of the Clean Water Act into a political fight but said the ultimate decision would rest with the courts (see related story).
“Let's get there sooner rather than later,” Cardin said on the Senate floor. “Let's not go back to the drawing boards and delay the necessary regulations for our country.”
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