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ACC AM Nov 9
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(ACC Mentioned) Industry Groups Criticize EPA Enforcement Priorities
Nov 9, 2015 | BNA Daily Environment Report
By Renee Schoof
Industry groups have told the Environmental Protection Agency it hasn't provided the data necessary to justify some of the enforcement priorities it has proposed for fiscal years 2017 to 2019, particularly in the areas of air toxics and industrial explosions. The EPA is considering 33 comments that it received on its proposed National... -
(ACC Mentioned) “Excuse Me, Sir, Are There Chemicals in That?” Why TSCA Reform Needs to Improve Our Chemical Safety
Nov 6, 2015 | Union of Concerned Scientists
By Gretchen Goldman
As any air traffic controller will tell you, sometimes having more information can be a burden. As a pregnant environmental engineer with pollutant exposure knowledge, I’ve never been more convinced of this. Knowing that there are chemicals in the environment that could be harmful to my growing baby makes me hyper-aware... -
(ACC Mentioned) Meat Industry Could Take California To Court Over Cancer Warning Labels
Nov 7, 2015 | The Hamilton Spectator
By Curtis Tate
The recent finding by an international panel that eating processed meat increases the risk of cancer could trigger warning labels under California law and a legal battle by meat producers and their trade groups to avoid the requirement. California is one of the largest producers and consumers of meat in the U.S... -
Environmental Working Group Launches Cosmetics Verification Program
Nov 9, 2015 | Chemical & Engineering News
By Marc S. Reisch
The Environmental Working Group, an activist organization, has launched a verification seal for personal care products intended to help consumers avoid toxic chemicals and contaminants that it says are commonly found in cosmetics. The seal, known as EWG Verified, will make shopping “easier for overwhelmed consumers who want... -
Details of HFC Phaseout Agreement Yet to Be Resolved
Nov 9, 2015 | BNA Daily Environment Report
By Andrew Childers and Dean Scott
Countries have agreed to amend the Montreal Protocol in 2016 to phase down use of hydrofluorocarbons (HFCs), extremely potent but short-lived greenhouse gases, but details of how that phasedown will be achieved equitably must still be negotiated in a series of extraordinary meetings to be held next year. -
Advocates Say McCarthy Ruled Out Favored Safety Plan
Nov 6, 2015 | E&E News PM
By Sam Pearson
Chemical safety groups that met with U.S. EPA Administrator Gina McCarthy last month left deeply concerned that the agency apparently does not plan to include regulatory changes requiring chemical plants to put new safety measures in place in a key rulemaking underway. Representatives from the Coalition to Prevent Chemical Disasters ... -
Emergency Responders Seek Crude-by-Rail Notification
Nov 9, 2015 | BNA Daily Environment Report
By Paul Shukovsky
West Coast emergency management officials and first responders are seeking more information about the movement of volatile Bakken crude oil and more support from the rail industry to prepare for potential incidents, speakers at an oil spill task force meeting in Portland, Ore., said. -
FRA to Publish Rail Inspection Safety Advisory
Nov 9, 2015 | BNA Daily Environment Report
A Federal Railroad Administration safety advisory reminding railroad track owners to be diligent in rail flaw and track inspections—spurred by a crude oil train derailment earlier this year—will be published Nov. 9 in the Federal Register. The advisory also reminds companies to ensure inspectors are appropriately trained. -
The Hole in Obama's Pipeline Safety Plan
Nov 9, 2015 | Politico
By Elana Schor and Andrew Restuccia
After a ruptured oil pipeline went undiscovered for 17 hours, spilling 800,000 gallons of heavy oil into Michigan's Kalamazoo River in 2010, Congress ordered an audit that laid bare the industry's lackluster record of spotting leaks. But after five years of work, the Obama administration has proposed a regulatory overhaul that fails to patch... -
How Obama's Waiting Game Killed Keystone
Nov 6, 2015 | PoliticoPro
By Elana Schor and Sarah Wheaton
In the summer of 2011, the signs outside the White House gates denouncing the Keystone XL pipeline mixed with Barack Obama campaign buttons and chants of “Yes we can.” But inside, the president and his top aides were fretting about the economy, with unemployment stuck at 9 percent and gasoline topping $3.60 a gallon little more than ... -
Republicans Vow Continued Fight on Keystone After Rejection
Nov 9, 2015 | BNA Daily Environment Report
By Ari Natter
Senate Majority Leader Mitch McConnell (R-Ky.) and other congressional Republicans vowed not to give up on legislative efforts to get the Keystone XL pipeline approved, but analysts said there was little they could do after President Barack Obama announced Nov. 6 that the administration rejected TransCanada Corp.'s... -
Citing 'American Leadership' In Paris Talks, Obama Rejects Keystone Pipeline
Nov 6, 2015 | InsideEPA
By Lee Logan
Linking the decision to fast-approaching international talks in Paris to address climate change, President Obama has rejected a key permit for the controversial Keystone XL tar sands pipeline that had become a major symbol in longstanding disagreements on energy and climate issues. -
Secret E-Mails Support Clean Power Plan Stay: Group
Nov 9, 2015 | BNA Daily Environment Report
By Anthony Adragna
E-mails hidden from the public rulemaking docket provide further evidence for a federal appeals court to grant an immediate stay of the Environmental Protection Agency's Clean Power Plan, according to a filing(West Virginia v. EPA, D.C. Cir. , No. 15-1363, brief filed 11/5/15). The Energy and Environment Legal Institute, a free market advocacy... -
Murkowski Officially Launches Re-Election Bid
Nov 9, 2015 | E&E Daily News
By Margaret Kriz Hobson
Early Friday, Senate Energy and Natural Resources Chairwoman Lisa Murkowski boarded a plane in Washington, D.C., and flew to Alaska to tell an enthusiastic group of supporters something they already knew: She's running for re-election. At a crowded music venue here in the state's most populated city, the Alaska Republican said that since... -
EPA's Revised Boiler MACT Expands 'Clean Fuel' Compliance To Biomass
Nov 6, 2015 | InsideEPA
By Stuart Parker
EPA's final revised maximum achievable control technology (MACT) air toxics rule for “major” source boilers expands the definition of “clean fuels” approved as a compliance option to cut emissions during boiler startups to include certain types of biomass, pleasing industry groups although EPA retained other provisions that they oppose. -
EPA Alters Startup Requirements Under Boiler Standards
Nov 9, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency revised its air toxics standards for major source industrial boilers to include alternative work practice standards that can be adhered to during startup procedures. The final rule (RIN 2060-AS09), signed Nov. 5, updates the maximum achievable control technology (MACT) standards for boilers and was... -
Fine Particulate Arguments Focus on Practical Effect
Nov 9, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Oral arguments over the Environmental Protection Agency's implementation rule for fine particulate matter standards mostly focused on jurisdictional issues, namely whether a ruling in favor of environmental groups challenging the rule would have any practical effect (WildEarth Guardians v. EPA, D.C. Cir., No. 14-1145, argued 11/6/15). -
Judges Wrestle With Authority, Remedy In Suit Over Stricter PM Air Plans
Nov 6, 2015 | InsideEPA
By Stuart Parker
Appellate court judges at Nov. 6 oral argument in a suit filed by advocates seeking to force stricter fine particulate matter (PM2.5) controls on states wrestled with whether they have authority to hear the case and what remedy they could order, in a case that poses a test for when EPA must retroactively apply certain Clean Air Act mandates. -
EPA Spars With CWA Rule Opponents On Push To Stay District Court Suits
Nov 6, 2015 | InsideEPA
By Bridget DiCosmo
EPA is sparring with opponents of the agency's Clean Water Act (CWA) jurisdiction rule over the administration's push for federal district courts to stay myriad lawsuits over the regulation until an appellate court decided whether it can hear a challenge to the rule, as critics of the rule are saying there is no legal basis for delaying the suits.
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(ACC Mentioned) Industry Groups Criticize EPA Enforcement Priorities
Nov 9, 2015 | BNA Daily Environment Report
By Renee Schoof
Industry groups have told the Environmental Protection Agency it hasn't provided the data necessary to justify some of the enforcement priorities it has proposed for fiscal years 2017 to 2019, particularly in the areas of air toxics and industrial explosions.
The EPA is considering 33 comments that it received on its proposed National Enforcement Initiatives before it issues its final set of priorities for the period.
The agency's National Enforcement Initiatives [NEI] are a guide to what the agency believes are the most important environmental problems where noncompliance is high and more federal enforcement could be expected to reduce pollution and protect public health and the environment.
The Corporate Environmental Enforcement Council Inc., a business coalition, for example, said that additional information and justification were needed for all of the agency's enforcement priorities but added that “nowhere was this more apparent” than in the new proposed focus on industrial accidents and hazardous releases. When it proposed this initiative, the EPA said that there were about 150 catastrophic accidents per year and 2,000 high-risk facilities throughout the country.
“These numbers are concerning and very well may place them among the most important environmental problems facing the nation,” wrote Steven B. Hellem, the council's executive director. “But what is the basis for the numbers? How do the numbers compare with data from previous years? How did EPA define and identify ‘catastrophic' accidents and ‘high risk' facilities? We ask that EPA provide the underlying data and information about these accidents and facilities so that we can better understand both the severity of the problem and the extent to which noncompliance is a significant contributing factor.”
Criticism Levied at Toxic Air Initiative
Similarly, Hellem quoted the EPA's proposed enforcement initiative on cutting toxic air pollution as saying it was “much greater than what had previously been estimated.”
“While this may go to the importance or relative severity of the problem, it does nothing to show that noncompliance is a significant contributing factor,” Hellem wrote. “Indeed, EPA has presented no information about actual noncompliance, just a statement that ‘noncompliance is a growing threat.' Rather than make this an NEI, the proper path for addressing previously unknown or underestimated emissions would be to evaluate their risk and then initiate a rulemaking to regulate the risk to acceptable levels.”
He added that without more information to justify each initiative, “we are concerned that NEIs will be susceptible to misuse,” such as being used as a proxy for rulemaking.
The American Chemistry Council also questioned how the EPA got its numbers of catastrophic industrial accidents and high-risk facilities. It called for supporting information to be added to the docket and for the public comment period to be extended. The council also opposed the agency's plans to focus on toxic air pollution from industrial facilities and from energy extraction.
The Center for Effective Government supported the EPA's proposal, including the new initiative on chemical releases, fires and explosions. The group said that the EPA should go further and require that the facilities assess safer alternatives to hazardous chemical use, storage and production processes and implement the safer approaches when possible.
Next Enforcement Priorities
The EPA called for comments on Sept. 15 when it published its proposed priorities in the Federal Register. The agency proposed a continuation of all six of its current priorities:
• air pollution from power plants and other large sources;
• toxic air pollution;
• pollution from land-based natural gas extraction;
• raw sewage and contaminated stormwater;
• pollution from mineral processing operations; and
• animal waste pollution in water.
It also proposed three new areas of focus: an expansion of the initiative on toxic air emissions to include a focus on organic liquid storage tanks and hazardous waste facilities; water pollution by mining, chemical manufacturing, food processing and primary metals manufacturing; and reducing the risks and impacts of industrial accidents involving highly toxic substances (178 DEN A-6, 9/15/15).
EPA Reviewing Comments
The EPA has reviewed the comments and is considering them as it makes its decisions about the National Enforcement Initiatives, deputy press secretary Nick Conger told Bloomberg BNA Nov. 6.
The agency expects to make a decision on them in early 2016 so that they can be included in the agency's Office of Enforcement and Compliance Assurance's National Program Manager Guidance Addendum for FY 2016-2017. Six of the comments the agency received weren't posted online.
Some of the industry groups also complained about the EPA's Next Generation compliance strategy, which involves the use of advanced pollution-detection equipment, electronic reporting and easy public access to environmental enforcement information.
The new technology is used to observe air emissions from organic liquid storage tanks. The International Liquid Terminals Association said that the “EPA must recognize the limitations of current advanced or remote monitoring techniques alongside the costs in demanding a greater degree of precision from these technologies than is readily evident in the monitoring results.”
Next Generation Called ‘Misguided.'
The American Petroleum Institute, in comments by its senior director for regulatory and scientific affairs, Howard Feldman, said that Next Generation was “an overt and misguided effort by EPA to shift enforcement responsibility away from the agency” and that the methods put undue burdens on regulated companies and encourage third-party enforcement that isn't subject to checks and balances.
API, in greater detail, argued that all of the enforcement initiatives that apply to its sector should be eliminated from the list of priorities and returned to a standard enforcement regime. For example, API cited the initiative on cutting toxic air pollution applied to petroleum refineries' leaks, flares and excess emissions.
However, the EPA has finalized a rule covering hazardous air pollutant emissions from refineries that includes a fenceline monitoring program. “Consequently, any concerns that the agency may have had about emissions from this sector have been addressed,” Feldman wrote.
Continue Controls Urged on Animal Farms
The Natural Resources Defense Council, Food and Water Watch and the Farmers Union encouraged the EPA to keep controlling water pollution from large animal farms as a priority.
The farm group said that rural areas needed clean water and that operators who don't buy waste management equipment get an unfair advantage over those who “play by the rules.”
The National Cattlemen's Beef Association argued that making control of animal waste a priority was unnecessary and argued that “new and ongoing efforts” would achieve the same goals. The group also said that there was no evidence that having this area as an enforcement priority in the past had resulted in water quality improvements.
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Nov 6, 2015 | Union of Concerned Scientists
By Gretchen Goldman
As any air traffic controller will tell you, sometimes having more information can be a burden. As a pregnant environmental engineer with pollutant exposure knowledge, I’ve never been more convinced of this. Knowing that there are chemicals in the environment that could be harmful to my growing baby makes me hyper-aware of what I’m exposed to, for how long, and at what quantities.
But a bigger challenge for me and countless others concerned about their chemical exposure is the fact that it isn’t only environmental pollutants that we should worry about, but also our exposure to chemicals through consumer products. As I’ve noted before, I had always assumed that if a product was on the market, it was because our public protections had ensured that it was safe. But even a cursory look at our chemical policies shows that this is far from the truth.
The law governing our use of chemicals in consumer products is the Toxic Substances Control Act (TSCA). TSCA was passed in 1976 and is sorely in need of an update. The law has been overwhelmingly ineffective at regulating the safety of chemicals used in commercial products. Today there are some 84,000 chemicals registered for commercial use, and the EPA has been able to regulate just nine—far less than one percent!
As a result, many of the products we use every day contain toxic chemicals at quantities that could be harmful. A recent study by the Campaign for Healthier Solutions, run by Coming Clean and the Environmental Justice Health Alliance for Chemical Policy Reform, for example, tested 164 products sold at dollar stores and found that 81 percent of them contained one or more toxic chemicals. Moreover, the toxicity of dollar store products is likely to disproportionately affect low-income communities and communities of color who rely more on dollar stores to meet their needs. Retail stores can take action by choosing products without chemicals of concern, but a great deal of our toxic chemical exposure should be eliminated by a better chemical policy at the federal level. Reforming TSCA
Thankfully, due in part to the efforts of the Safer Chemicals, Healthy Families, a coalition of more than 450 organizations throughout the country including the Union of Concerned Scientists, Congress has recognized this need for reforming our chemical policy and is now in the process of updating TSCA. It’s not yet clear exactly how strong the new version of the bill will be, but we certainly know what needs to be in it, in order to better protect us from harmful chemicals in consumer products: EPA authority and capacity to review and regulate more chemicals. Under the current law, the EPA has very limited resources to review the safety of many, many chemicals. The result is that the vast majority of chemicals in use go unregulated. A new TSCA should fix this situation. Industry fees and funding from Congress should ensure EPA has the staff and other resources it needs to fulfill this mission.A strong role for the states in chemical safety: In the absence of a strong federal policy regulating chemicals, many states—including California, Washington, Maine, Connecticut, and New York—have taken initiatives to set their own strong standards. To the largest extent possible, a new law should respect current state laws and ensure that states are free to protect their citizens from unsafe chemicals in the future until the EPA takes strong action. States also should be free to impose restrictions on chemical uses that the EPA does not address in its regulations.Independence from industry interference. As a recent UCS report demonstrated, the chemical industry has been a powerful force in influencing policy outcomes around chemical regulation. When it comes to TSCA, we know the industry, working largely through its major trade association the American Chemistry Council, wants to see a reformed law that enables it to operate as close as possible to business as usual. A strong TSCA law should not micromanage how the EPA uses science.
From my own efforts to prevent chemical exposure of my expectant baby to the efforts of the Campaign for Healthier Solutions in getting chemicals out of dollar store products, it is clear that we need improved chemical policies to protect us. I’ll be watching closely as Congress decides on a policy. Ultimately, I hope my baby will grow up in a world where I and millions of mothers like me, can rely on the government to keep us safe.
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(ACC Mentioned) Meat Industry Could Take California To Court Over Cancer Warning Labels
Nov 7, 2015 | The Hamilton Spectator
By Curtis Tate
The recent finding by an international panel that eating processed meat increases the risk of cancer could trigger warning labels under California law and a legal battle by meat producers and their trade groups to avoid the requirement.
California is one of the largest producers and consumers of meat in the U.S., and the meat industry is likely to fight any effort by the state to label its products under Proposition 65. That law, approved by the state's voters three decades ago, requires warnings about products that contain substances known to cause cancer.
"I expect to see a lot of activity from the meat industry about that process," said Patty Lovera, assistant director of Food and Water Watch, a consumer watchdog group. "They'll beat it down in the court of public opinion."
Industry advocates and legal experts anticipate that the meat producers will try to cast doubt on the findings or downplay their significance and could take California to court over the labelling requirements.
"We may have to," said Janet Riley, senior vice president for public affairs at the North American Meat Institute, the industry's trade association. "The level of reaction is not proportional to the level of threat."
California's Office of Environmental Health Hazard Assessment, the agency that enforces Proposition 65, relies heavily on the World Health Organization's International Agency for Research on Cancer for guidance on what to list and label as carcinogenic. In California, the body's research is considered as authoritative as that of the U.S. Environmental Protection Agency and the U.S. Food and Drug Administration.
The agency has added about 800 chemicals to the list since it was first published in 1987. Once a substance is listed, businesses with 10 or more employees have a year to comply with its labelling requirements.
Based on hundreds of studies, the international panel last month added bacon, sausage, ham, hotdogs and other processed meats to its list of Group I carcinogens, which include tobacco and asbestos. However, the panel emphasized that the classification of processed meats in that category did not mean the danger was equal to that of those substances.
The panel also classified red meat as "probably carcinogenic" based on "limited evidence" showing a relationship between its consumption and colon cancer. Red meat includes beef, pork, veal and lamb.
The panel also cautioned that the cancer risk from meat consumption was relatively low compared with smoking and excessive drinking, and it acknowledged that meat has known health benefits.
Critics of Proposition 65, which passed in 1986, have argued for years that its public benefits are limited because it gives consumers little context or comparison of relative risk. A warning typically only states that the product in question contains chemicals or substances known by the state to cause cancer.
"It doesn't tell them what the risk is," said Karyn Schmidt, senior director for regulatory and technical affairs at the American Chemistry Council, a trade group in Washington. "People don't know how much they can eat."
Groups that support Proposition 65, however, say products should be labelled so consumers can choose whether to accept the risk of exposure to carcinogens and if not, choose other products instead.
"The solution to that problem isn't to label less," said Stephanie Feldstein, population and sustainability director at the Center for Biological Diversity, an environmental group. "It's to have better products."
California's environmental health office will now consider the World Health Organization's findings. Allan Hirsch, the California agency's chief deputy director, said the next step would be to formally notify the public of its intent to list processed meat and red meat as carcinogens, and a public comment period would follow.
Groups on both sides anticipate that the meat industry will attempt to discredit the science of the panel's research in a bid to head off a listing. But it could be tough to dissuade the state agency from disregarding a report from an international body whose work it considers highly persuasive.
"It would be an uphill battle for the industry to contest this on the science," said Laura MacCleery, regulatory affairs attorney for the Center for Science in the Public Interest.
Meat producers might have better luck arguing that federal law pre-empts Proposition 65. The U.S. Department of Agriculture regulates meat labelling, and courts have struck down state laws when they have come in conflict with federal requirements, though not always.
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Environmental Working Group Launches Cosmetics Verification Program
Nov 9, 2015 | Chemical & Engineering News
By Marc S. Reisch
The Environmental Working Group, an activist organization, has launched a verification seal for personal care products intended to help consumers avoid toxic chemicals and contaminants that it says are commonly found in cosmetics.
The seal, known as EWG Verified, will make shopping “easier for overwhelmed consumers who want to quickly find a bottle of shampoo or a tube of toothpaste that is better for their health,” says Ken Cook, the group’s president. Two small cosmetic makers, Beautycounter and MyChelle Dermaceuticals, will be the first program participants.
Products eligible for the mark cannot contain probable reproductive, carcinogenic, or environment-damaging toxins, EWG says. Among the ingredients the group proscribes are paraben preservatives and nitro- and polycyclic musk fragrance ingredients, all of which it considers suspected endocrine disruptors.
However, personal care products that include synthetic chemicals aren’t automatically barred from receiving the EWG seal. Although sunscreen formulas aren’t covered in the new verification program, the group has argued in favor of certain synthetic sunscreen ingredients permitted in Europe but not allowed in the U.S.
Seal-eligible products must also meet other criteria such as scoring high in EWG’s Skin Deep cosmetics database and fully disclosing ingredients on packaging labels. Only products that “meet our robust criteria, as opposed to minimal government standards,” are eligible to receive the mark, says Nneka Leiba, the group’s deputy director of research.
Leiba says she hopes the program will spur development of safer products. If successful, the group plans to roll out the program to other goods it tracks such as cleaners and food.
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Details of HFC Phaseout Agreement Yet to Be Resolved
Nov 9, 2015 | BNA Daily Environment Report
By Andrew Childers and Dean Scott
Countries have agreed to amend the Montreal Protocol in 2016 to phase down use of hydrofluorocarbons (HFCs), extremely potent but short-lived greenhouse gases, but details of how that phasedown will be achieved equitably must still be negotiated in a series of extraordinary meetings to be held next year.
Key components to be determined will be funding assistance for developing countries, differentiated phasedown schedules and intellectual property rights to some of the alternatives, Durwood Zaelke, president of the Institute for Governance & Sustainable Development, who participated in the negotiations told Bloomberg BNA Nov. 6. That assistance will be critical as the amendment will push countries to further limit their use of HFCs, which were intended to replace hydrochlorofluorocarbons (HCFCs), which deplete the ozone layer.
“We're asking now all the countries to do a second transition simultaneously with the one that's already going on,” Zaelke said.
Counties announced that they had agreed to phase out use of HFCs at the conclusion of the 27th Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, which ran from Nov. 1-5 in Dubai. Details of the amendment are expected to be hammered out in 2016 during an extraordinary working group meeting and an extraordinary meeting of parties.
Secretary of State John Kerry said the agreement opens “a new chapter” in global efforts to tackle climate change, because it targets greenhouse gases far more potent in contributing to global warming than carbon dioxide, the most prevalent greenhouse gas.
“This is a major accomplishment” under the Montreal Protocol, Kerry said in a Nov. 5 statement, because implementation of the amendment backed by countries in Dubai could avoid 0.5 degree Celsius of warming by century's end.
A ton of HFCs has a global warming potential—the degree to which a substance warms the planet—of up to 10,000 times that of a ton of carbon dioxide, but they have much shorter atmospheric lives. If implemented, the HFC reductions could be a significant contribution to the temperature goal negotiators hope to include in a United Nations climate deal at December talks in Paris: a global goal to keep temperatures from rising more than 2 degrees Celsius (3.6 degrees Fahrenheit) above preindustrial levels to avert catastrophic climate change.
The Dubai agreement has “laid the groundwork for even greater co-operation toward a successful outcome” at the Nov. 30-Dec. 11 Paris summit, Kerry said, where nearly 200 nations hope to get a global climate agreement that would enter into force in 2020.
U.S. Curbs HFCs
President Barack Obama has already made curbing emissions of HFCs part of his administration's efforts to address climate change.
Environmental Protection Agency Administrator Gina McCarthy, who attended the Dubai talks, said the agreement would spur all countries to “transition to alternatives and away from HFCs” in the years ahead.
The EPA, which would implement the protocol, has already taken steps (RIN 2060-AS18) under the Significant New Alternatives Policy (SNAP) Program to phase out the use of some HFCs (80 Fed. Reg. 42,870; 128 DEN A-4, 7/6/15).
However, the Natural Resources Defense Council and the Institute for Governance & Sustainable Development have petitioned the EPA to go further and ban the use of several other HFCs as well.
On Nov. 9 the EPA will publish in the Federal Register a proposed rule (RIN 2060-AS51) that would expand Section 608 of the Clean Air Act to bar the deliberate venting, release or disposal of HFCs or other non-ozone-depleting substitute refrigerants when servicing or disposing of air conditioning and refrigeration equipment. The administration announced the rule in October as major private-sector companies, including Dow Chemical Co., Honeywell International Inc., Johnson Controls Inc. and Target Corp., also announced new commitments to slash emissions of HFCs (200 DEN A-4, 10/16/15).
Momentum Builds to Paris
Supporters of the amendment said the international agreement should provide momentum for the upcoming Paris negotiations.
“It is a significant accomplishment for climate action on the road to the Paris Climate Conference later this month and sends a strong signal that the international community can come together to confront some of the world's greatest environmental challenges and continue progress toward cutting global greenhouse gas emissions,” McCarthy said.
The next round of amendment talks likely won't happen until after the Paris negotiations, but Zaelke said participants “are prepared to move extraordinarily fast” after that.
“I think we've seen this at other times too, there being this sense of momentum. It's critical we maintain that sense of momentum post-Paris,” Carol Werner, executive director of the Environmental and Energy Study Institute, told Bloomberg BNA.
While the parties have not yet set a schedule for the amendment talks, Werner said the Obama administration will likely push to have the amendment finished before it leaves office in January 2017.
“Everybody will be feeling urgency so things aren't just hanging around,” she said.
The success of the Montreal Protocol should spur nations as they meet to reach a new climate agreement, advocates said. However, the protocol's success also highlights the importance of pursuing multiple avenues to address climate change, Zaelke said.
“This is a treaty that always does its business and always moves forward,” he said. “It's the best example I've ever seen of an international agreement where business gets done on a regular basis.”
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Advocates Say McCarthy Ruled Out Favored Safety Plan
Nov 6, 2015 | E&E News PM
By Sam Pearson
Chemical safety groups that met with U.S. EPA Administrator Gina McCarthy last month left deeply concerned that the agency apparently does not plan to include regulatory changes requiring chemical plants to put new safety measures in place in a key rulemaking underway.
Representatives from the Coalition to Prevent Chemical Disasters -- which includes more than 100 advocacy groups like Greenpeace, the Sierra Club and the Center for Effective Government -- met with McCarthy and Mathy Stanislaus, the assistant administrator for solid waste and emergency response, on Oct. 13 at EPA's Washington, D.C., headquarters.
For more than two years, since President Obama issued an executive order meant to launch an interagency process to boost safety at chemical facilities after a deadly fertilizer explosion in West, Texas, the groups have pressed EPA to put tough rules in place for the sites. Their top policy prescription is a plan, favored by many watchdog groups but opposed by the chemical industry, to require high-risk chemical facilities to conduct safety evaluations, and then implement identified safety improvements as feasible.
At the meeting, McCarthy told the group the use of inherently safer technology (IST) was not being pursued under an EPA rulemaking to update the risk management program, a set of regulations under the Clean Air Act Amendments of 1990 that apply to sites storing large quantities of hazardous chemicals, the coalition said.
Former EPA Administrator Christine Todd Whitman planned to propose a version of this in 2002 but was rebuffed by the Bush White House. The policy hasn't advanced in the more than 13 years since.
McCarthy told the advocates the policy was ruled out due to its "complexity" and "challenges with small business," the group said.
EPA has "a lot going on" to add such a daunting task to its portfolio, McCarthy said, according to the coalition.
For months, advocates have expressed concern EPA was insufficiently committed to the rulemaking, which comes amid high-profile agency priorities like the Clean Power Plan, Waters of the United States rule and new ozone standards -- even though polls commissioned by the environmental groups often find broad support for changes (Greenwire, Oct. 8). Earlier this year, Chris Schepis, the minority staff director for the House Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies, told a chemical security conference that he believed some members of the Obama administration were "hesitant" about the policy (E&ENews PM, July 23).
In a statement, EPA declined to confirm McCarthy's comments to the advocacy groups, citing the ongoing "development and review process."
"We need to review approximately 100,000 comments received on the RMP Request for Information and fulfil the Small Business Regulatory Enforcement Fairness Act requirements," the statement said. "EPA estimates publication in early 2016."
McCarthy's comments were "pretty disturbing and, we assume, candid," said Greenpeace Legislative Director Rick Hind, who attended the meeting.
Bill Allmond, the vice president of government affairs at the Society of Chemical Manufacturers and Affiliates, said the safety groups' claims were difficult to believe.
"Whether EPA will require facilities to do IST is still very much an open question," Allmond said. He called the coalition's claims "extremely premature."
Allmond said he found it difficult to imagine McCarthy would discuss the contents of a pending regulation before it has been issued.
The Obama executive order launched interagency coordination among EPA, the Department of Homeland Security, the Department of Labor and other agencies. For more than 10 months, the agencies worked together to produce a report, "Actions to Improve Chemical Facility Safety and Security -- A Shared Commitment." The report outlined a series of regulatory activities the agencies could conduct to boost safety during the remainder of Obama's term (Greenwire, June 6, 2014).
EPA's first task is to complete a proposed rule to update the risk management program, which requires chemical sites that keep large quantities of hazardous chemicals present to file risk management plans with the agency. The agency planned to issue a proposed rule by September, which groups said was crucial for the rule to avoid being overturned by Congress or a future president in 2017. After months of assurances that it was on track to propose the rule as planned, EPA has yet to do so amid a delayed small-business review panel (Greenwire, Oct. 5).
Though EPA lists the Small Business Advocacy Review panel as a "potential" panel, Allmond said the panel has begun its work.
"The panel has been assembled, it has members, and they are communicating with EPA on some of the proposals that the agency has put forth," Allmond said.
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Emergency Responders Seek Crude-by-Rail Notification
Nov 9, 2015 | BNA Daily Environment Report
By Paul Shukovsky
West Coast emergency management officials and first responders are seeking more information about the movement of volatile Bakken crude oil and more support from the rail industry to prepare for potential incidents, speakers at an oil spill task force meeting in Portland, Ore., said.
Advance notice of the movement of unit trains hauling up to 81,000 barrels of crude would provide the kind of “situational awareness” that emergency managers seek in order to be ready to respond to what speakers at the Pacific States/British Columbia Oil Spill Task Force meeting Nov. 5 identified as the potential for catastrophic accidents.
Chris Field, an Environmental Protection Agency emergency management program official, told colleagues from California, Washington, Oregon and British Columbia that he sees a patchwork of state initiatives in response to inadequate federal regulation.
“When you look across the country, you see a kind of quilt of successes where the states step up and are moving faster and farther,” the EPA Region 10 official said.
Asked by Bloomberg BNA during a break in the meeting to expand on his perspective, Field said: “I just think federal regulators could hear what the states are asking for and require the railroads to do more.” He said better notification of shipments of crude, the quantities involved and staging locations would help first responders be better prepared in the event of an incident.
Quick Response Needed
He called the type of information currently provided “not very helpful to responders.” And he said there should be more enforcement to ensure railroads are complying with existing regulations, particularly around rail tankers in staging areas and sidings.
A staffer for Sen. Maria Cantwell (D-Wash) shared the senator's concerns about those issues, reading from a letter in which Cantwell said the increased movement of crude-by-rail begs for “bolstered oversight.” Cantwell said in her letter that the Crude-by-Rail Safety Act she introduced earlier this year “would establish new regulations to mitigate the volatility of crude oil shipped by rail, and provide resources and training to first responders. We must act quickly to put in place rules that will protect our communities.”
Emergency managers in Washington state have little meaningful, real-time information about crude-by-rail movements through the state, said Department of Ecology Spill Program Manager Dale Jensen. Jensen made a plea to representatives from BNSF Railway and Union Pacific Railway present at the meeting: “Anything that you can do to make that info more transparent.”
Ross Lane, regional director of public affairs for BNSF, described such efforts by the company.
“One of the newest tools available to the first responders is a secure mobile app called ‘AskRail,’ which was developed by BNSF and other Class I railroads,” he said in an e-mail to Bloomberg BNA. “It provides first responders immediate access to accurate, timely data about what type of hazardous materials a railcar is carrying so they can make an informed decision about how to respond to a rail emergency. Also, for decades, BNSF has provided free hazmat training to first responders across our network. We also sponsor firefighters so they can attend a specialized three-day workshop on crude by rail at the national training facility in Pueblo, Colorado.”
In an exchange between Jensen and Union Pacific hazardous materials manager Kim Keeling, Keeling cited Department of Homeland Security concerns about revealing sensitive information about the movements of crude that could be used by terrorists. Because of state public records laws, Jensen said he cannot sign agreements to protect confidentiality of the information.
Difficulty in Getting Information
Jensen said that for years, his office has received advance notice of maritime oil tankers approaching Washington laden with millions of gallons of crude.
“We have transparency for information coming in on the marine side. I don't see why it's so difficult to get the same information for rail.”
Several participants at the conference expressed their disappointment that the Federal Railroad Administration declined invitations to attend the meeting.
“The federal prevention agencies like FRA should be here,” said the EPA's Field. “They should hear what the concerns are and where the shortcomings are,” Jensen said in response to a question from Bloomberg BNA: “We tried really hard to get FRA here.”
All three states at the meeting as well as British Columbia have taken steps to fill what many at the meeting see as the federal regulatory void.
State Rep. Mark Johnson (R) of Oregon represents a district in the Columbia River gorge that contains the main rail corridor for the movement of crude-by-rail. Johnson said his district “has the most to lose in a catastrophic event.”
Bumping Up Against Preemption
“I can't stop oil trains,” said Johnson. “I can't tax the carriers. I can't penalize the carriers. The pre-emption laws around rail transport are incredibly strong.” Instead, Johnson sponsored HB 3225 which was enacted into law last July. It requires, and pays for, the development and implementation of a coordinated response plan that includes training, equipment and the ability to acquire real-time information on the location of crude-by-rail shipments already crossing tracks in the state.
Washington Rep. Jessyn Farell (D) was a prime sponsor of a bill that passed in the last regular session. It added considerable language on rail transport of crude to an existing statute that was heavily oriented toward maritime transport. Among the provision of ESHB 1449 is a requirement that the Department of Ecology adopt rules determining contingency plans for railroads transporting crude. Jensen said the rule would be formally announced soon and should be promulgated by August, 2016.
Said Farell: “We found ourselves bumping up against federal preemption. Just because we are taking strong action at the state level doesn't mean we should let the federal government off the hook.”
In California, the Office of Spill Prevention and Response is implementing a 2014 legislative mandate to expand from a maritime orientation to one that also includes rail transport by broadening jurisdiction to all waters of the state, said Yvonne Addassi, chief of preparedness and acting deputy administrator of the Department of Fish and Game, the spill office's parent agency. She said railroads will be submitting contingency plans by Jan. 1.
Polluter Pays Approach
British Columbia—sandwiched between the sea and the tar sands of Alberta—is ground zero for crude-by-rail transport as well as proposed pipeline development, according to Graham Knox, director of the Environment Ministry's environmental emergency program.
In 2012, the B.C. government laid out several conditions for heavy pipeline development, including the creation of “a world leading spill response regime” for the province, Knox said. Now in development, the program will include principles such as polluter pays and strong government oversight.
A provincewide, industry-funded Preparedness and Response Organization is contemplated that would operate within the framework of new regulatory requirements supporting preparedness, response and recovery, Knox said. A time line calls for new legislation and regulations implementing the plan beginning in the spring of 2016.
Some first responders at the meeting said that despite progress made at the state level, substantially more assistance is needed from the railroads.
Derailments, Spills Will Occur
Assistant Chief Brian Schaeffer of the Spokane, Wash., Fire Department said: “We are going to have derailments, and catastrophic spills are going to occur. None of us, including the city of Spokane, have the resources and capability and the staffing to respond to one of these incidents.”
Against that backdrop, Schaeffer said “we felt separated from the industry.” The department “didn't know when or where” the crude would be transported across the city's elevated bridges that run adjacent to hospitals, a high school and the Spokane River.”
And while Chad Hawkins, emergency readiness coordinator for the Oregon Fire Marshall's office is deeply encouraged by progress made through the passage of HB 3225, he noted that a 2014 survey of fire departments found about 80 percent said they were unable to adequately respond to a crude-by-rail incident.
The only representative of a nongovernmental organization present was Brett VandenHeuvel of Columbia Riverkeeper, among several environmental group plaintiffs in a lawsuit against BNSF for allegedly polluting waterways, including the Columbia River, with coal dust spewing from trains.
VandenHeuvel voiced his concern about a proposal to build a crude-by-rail terminal on the river at Vancouver, Wash., that would ship 360,000 barrels per day, which he said equals four unit trains per day(195 DEN A-15, 10/8/15).
“There's a lot states can do,” he said. “They can change zoning, nuisance code ordinances to make a real difference.”
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FRA to Publish Rail Inspection Safety Advisory
Nov 9, 2015 | BNA Daily Environment Report
A Federal Railroad Administration safety advisory reminding railroad track owners to be diligent in rail flaw and track inspections—spurred by a crude oil train derailment earlier this year—will be published Nov. 9 in the Federal Register. The advisory also reminds companies to ensure inspectors are appropriately trained. These tasks are especially important for hazardous material and passenger rail, the notice said. The safety advisory, which focuses in part on rail head surface conditions, is part of the agency's response to a CSX Corp. crude oil train derailment in Mt. Carbon, W.Va. (197 DEN A-9, 10/13/15). It is part of the Transportation Department's broader effort to improve the safety of rail movement of flammable liquids, such as crude oil. The notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-28411.pdf.
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The Hole in Obama's Pipeline Safety Plan
Nov 9, 2015 | Politico
By Elana Schor and Andrew Restuccia
After a ruptured oil pipeline went undiscovered for 17 hours, spilling 800,000 gallons of heavy oil into Michigan's Kalamazoo River in 2010, Congress ordered an audit that laid bare the industry's lackluster record of spotting leaks.
But after five years of work, the Obama administration has proposed a regulatory overhaul that fails to patch that hole in the nation’s pipeline safety net — a revelation that has been largely ignored amid Washington's obsession with the Keystone XL pipeline.
The proposal includes no minimum standards for how quickly the companies that own and operate the nation's sprawling network of oil pipelines must detect and plug leaks that can turn rivers, lakes and fields into hazardous-waste sites. Spills from pipelines carrying oil and other hazardous liquids have caused more than $2 billion in property damage in the past five years, while killing seven people and injuring 15, according to data from the Pipeline and Hazardous Materials Safety Administration.
While the agency’s proposed rule expands the number of pipelines that must have a leak-detection system in place, it sets no basic standards for how well that technology should work. Instead, safety advocates say, it lets pipeline operators decide for themselves whether they are adequately prepared.
"PHMSA is leaving it up to individual companies to make the determination of how well their leak detection can perform," said Carl Weimer, the executive director of the Pipeline Safety Trust, the country's leading pipeline watchdog group. "And we have seen multiple times that while many companies may do a good job under such a rule, there are enough others that will not."
The rule was inspired by the Michigan leak in 2010 and made more urgent by later pipeline disasters, including a 2013 rupture that drove people from their homes in Arkansas and a 100,000-gallon spill that that befouled California’s coastline this year.
The pipeline safety agency has long faced criticism for not doing enough to prevent accidents — and for a culture that even some of its allies admit is dominated by the oil and gas pipeline industry, as a POLITICO investigation published in April showed. Despite praise for PHMSA’s renewed urgency under a new chief who joined in August, safety advocates wonder whether it is up to the task.
The agency told POLITICO it plans to release a separate regulation on leak detection soon, perhaps as early as the spring. But the proposed safety rules for oil pipelines that it proposed last month represent a first test of the agency’s ability to take a harder regulatory line, and they underscore the immense challenges facing PHMSA.Safety advocates say they were barely consulted as the rule was being written, and records show that the administration held only two meetings with outside groups while the rule was being reviewed by the White House. Both of those were with industry, the first with the American Petroleum Institute and the Association of Oil Pipelines, and the second with GE.
Still, Steve Allen, chairman of the National Association of Pipeline Safety Representatives, said the proposal reflects PHMSA "trying to do the right thing."
“It seems that, under new the administrator, it’s possible to get more of these rulemakings through," said Allen, whose group represents state-level oil and gas pipeline regulators. "Why, I don’t know — but that’s all very positive."
But Weimer called the lack of leak-detection standards striking, especially because Congress had told PHMSA in a bipartisan 2011 pipeline safety bill to issue stronger standards pending the outcome of an external audit. That audit later found that a successful leak detection system “can easily pay for itself” in lessening the size of spills and inspire “greater public confidence” in pipeline safety.
"We can't understand if PHMSA plans at some future date to take this on, why it is not in a rule that has taken five years to produce, especially after they spent lots of money on a large leak detection study," Weimer said.
Meanwhile, lawmakers are unlikely to prod the agency to move faster anytime soon, as Congress’ bandwidth is being occupied by major rewrites of highway law and policies on shipping hazardous material. And the number of advocates who track pipeline safety remains small, even after the Michigan spill and five subsequent major leaks that also made national headlines.
Safety watchdogs praised some of PHMSA’s Oct. 1 proposals, but they greeted its omissions with exasperation.
The proposals would increase the number of pipelines that must have monitoring systems in place to detect spills beyond those located in “high consequence areas," such as urban centers or environmentally sensitive regions. (High-consequence areas represent an estimated 43 percent of the nation’s total oil-shipping mileage.) The rule would also require companies to inspect their pipes within 72 hours of a natural disaster or extreme weather event, and would require operators of smaller "gathering" pipelines that previously went unregulated to submit annual reports to the federal government.
Throughout the nearly five-year-long process of writing the rule, watchdog groups say they were left in the dark about what they should expect.
Safety advocates say minimum leak-detection standards have been successful in individual states that have adopted them, an indication that they could be expanded across the country. At least two states — Washington and Alaska — have imposed regulations that set minimum regulatory standards for leak detection systems on intrastate pipelines. Weimer said his group has not heard anything about those regulations causing problems in the states.
Lois Epstein, Arctic program director at The Wilderness Society, pointed to a 2012 Alaska state report that urged companies to regard the ability to detect a leak representing 1 percent of a pipeline’s daily volume as “an absolute minimum level of performance." But PHMSA's proposed rule sets no minimum performance level.
Epstein added by email that "it’s clear that operators could find products that meet leak detection performance standards, and that there doesn’t seem to be a good reason — technical or otherwise — why PHMSA did not include such standards in its proposed rule."
Pamela Miller of the Alaska-based green group Arctic Connections was one of about two dozen interested parties who spoke out while PHMSA was accepting public comment on its safety plans.
“I’m glad that the public will have transparency on spills that occur," she said of the proposed reporting rules for smaller pipelines. "But on the opportunity to ensure there’s a hammer, to make sure they don’t happen in the future, the regulation is very disappointing. Especially considering how long it’s been in the works.”
Leak detection systems are already a booming business. The global market for pipeline leak detection systems is set to reach $1.8 billion by 2020, according to Canada-based consultancy TechSci Research. And the American Petroleum Institute and the Association of Oil Pipe Lines told PHMSA that most operators already use leak-catching systems on pipelines even outside of the higher-risk areas where they're now required.But the systems most commonly used in the U.S. have a questionable success rate.
According to the 2012 outside audit written for PHMSA, one popular type of system — known as supervisory control and data acquisition, or SCADA — detected leaks in less than one-quarter of hundreds of reported incidents. Another type of system, called computational pipeline monitoring or CPM, had a detection rate of less than 15 percent.
SCADA systems collect data remotely from inside pipelines and transmit it to far-off control centers, while CPM uses an added layer on the pipeline to monitor factors that can warn of a spill, such as pressure or temperature. PHMSA has adopted an industry-crafted standard for CPM that applies only to companies choosing to use the systems.
The pipelines that ruptured in the 2010 Michigan spill and the 2013 Arkansas spill both had SCADA systems in place but not CPM, according to incident reports. PHMSA had warned ExxonMobil about faults in the SCADA on its Arkansas pipeline five months before the 2013 rupture, though an Exxon spokesman noted that the agency had signed off on changes to the company’s leak detection program prior to the Arkansas disaster.API, the oil industry's main trade group, declined a request for an interview to discuss the PHMSA proposal, which it said is still under review. The industry's initial response to the pipeline safety plan indicated neither support nor opposition.
"We need a practical pipeline safety rule for hazardous liquids that will complement industry’s strong safety standards," API midstream director Robin Rorick said in a statement last month.
PHMSA spokeswoman Artealia Gilliard defended the agency's lack of direct consultation with safety and environmental groups during the five-year process of crafting the proposal, describing the public comment period following its initial 2010 advanced notice of rulemaking as "a form of stakeholder engagement in advance."
In a response to written questions, the agency said it maintains outside advisory committees on both liquid and gas pipelines as a means to "obtain and consider expert insight on rulemaking proposals."
But the advisory committees have come under criticism for being too heavily influenced by the pipeline industry. The committee for hazardous liquids, for example, includes representatives from major pipeline operators such as Kinder Morgan Energy Partners, Marathon Pipe Line, Shell Pipeline, Phillips 66 Pipeline and Colonial Pipeline. The Pipeline Safety Trust’s Weimer is one of four public envoys on the committee, but he is the only member representing an outside pipeline safety watchdog group.
Weimer said his group was "really not at all" involved in the crafting of PHMSA's proposed regulation, though it did submit written comments about how the rule should be structured.
Richard Kuprewicz, a veteran pipeline consultant who also serves as a public representative on PHMSA's advisory committee, said it would be "disingenuous" to describe the panels as a source of input while the agency was crafting the rule.
A sign is posted on a bridge to indicate water contamination after approximately 800,000 gallons of crude oil spilled into the Kalamazoo River in Marshall, Michigan 2010. | Getty
Kuprewicz, whose firm has worked with industry and local governments, suggested that a re-examination of PHMSA's regulatory model might be in order, pointing to "too many ruptures where people are saying, 'We’ve learned our lesson and we’ll never do it again.'"
Environmental groups, including the Natural Resources Defense Council and the Sierra Club, said PHMSA did not reach out to them, though both groups submitted written comments on the rule.
Public records show that a PHMSA official and representatives from the White House Office of Management and Budget discussed the rule with API and AOPL, the pipeline industry's main lobbying arms, at the groups' request in June 2014. PHMSA and OMB officials also met with GE in June 2015 to discuss the company's pipeline inspection technology, according to the records.
"I think we’re not yet at the point where the public has an equal seat at the table with industry when determining what the minimum safety standards should be," said Anthony Swift, an energy analyst at NRDC who has long focused on pipeline safety. "All too often, public concern about pipeline safety is viewed more as a nuisance than the input of an important" group of people who are affected by pipeline regulations, he said.
Yet even the agency’s critics say PHMSA's new administrator, Marie Therese Dominguez, deserves praise for trying to make the agency more nimble.
"She's moving things along much better than they have previously," said Rep. Peter DeFazio of Oregon, the top Democrat on the House Transportation and Infrastructure Committee. DeFazio added that he had previously questioned whether PHMSA might need a structural overhaul, "but I think that she's pulling it together in a pretty good way."
PHMSA is facing a congressional reauthorization process in the coming months. It's unclear whether lawmakers will push for major changes at the agency, but Democrats and Republicans alike have recently trained their sights on the problems at PHMSA, including a litany of unmet mandates from Congress. A bipartisan group of lawmakers, for example, introduced legislation last month to make it easier for PHMSA to hire new pipeline inspectors.
PHMSA officials say they are working behind the scenes to comply with congressional safety mandates and finish the long-stalled regulations. But the agency faces a number of obstacles. It lacks a sufficient budget, it struggles to compete for personnel with pipeline expertise against the companies that can offer higher pay, and it faces the daunting task of determining the costs and benefits of its technical and complicated rulemakings.
On top of all that, PHMSA must grapple with the OMB, which scrutinizes every regulation. The proposed rule for oil pipelines, for example, lingered at OMB for months despite carrying a $23 million annual price tag, far short of the typical $100 million threshold for significant regulations.
The budget office ultimately deemed the regulation significant because of the degree of inter-agency coordination involved, agency spokeswoman Gilliard said.
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How Obama's Waiting Game Killed Keystone
Nov 6, 2015 | PoliticoPro
By Elana Schor and Sarah Wheaton
In the summer of 2011, the signs outside the White House gates denouncing the Keystone XL pipeline mixed with Barack Obama campaign buttons and chants of “Yes we can.”
But inside, the president and his top aides were fretting about the economy, with unemployment stuck at 9 percent and gasoline topping $3.60 a gallon little more than a year before Obama had to face the voters again. And supporters of the Canada-to-Texas oil pipeline were playing the pocketbook card big time, promising it would put thousands of Americans to work, lower prices at the pump and lessen U.S. reliance on Mideast oil.
Obama and his aides were skeptical of those claims, but knew they could lose the political argument if his opponents painted him as a jobs-killer. So, stuck between the demands of allies he would need for his reelection — labor unions that supported Keystone, and green groups and liberal donors who detested it — he waited.
And waited some more, past 2012, past the 2014 midterms. Until Friday, when he finally rendered the verdict that the project’s supporters and foes had come to expect: He was saying no to the $8 billion, 1,179-mile pipeline.
The White House said Obama’s decision was entirely based on his commitment to taking on climate change — and the decision came just weeks before he’s due to jet to Paris to try to reach a global climate agreement with leaders of nearly 200 nations. But the move also came in a world where many of Keystone’s political and economic underpinnings had collapsed: Oil prices have plummeted in the past year, while the unemployment rate fell Friday to 5 percent, the lowest since before the 2008 financial crisis.
“Four years ago, anything that said ‘job creation,’ people would jump onto,” said former Obama chief of staff Bill Daley, whose one-year tenure coincided with those first massive anti-Keystone protests outside the White House. “Now it’s a very different world.
“They waited long enough to where — whether intentional or not — obviously I don’t think it’s a big deal,” Daley said Friday. “Oil prices are down, unemployment’s low.”
White House press secretary Josh Earnest said the decision shouldn’t have surprised anyone who understands “a basic tenet” of Obama’s presidency. “The president’s campaign slogan in 2007 and 2008 wasn’t ‘Stay the Course,’” he said. “It was ‘Change You Can Believe In.’”
And one prominent Keystone opponent, climate activist billionaire Tom Steyer, said he’d been confident all along about where Obama would land. “The president, always, in his heart was here," he said.
But for years, neither side was taking anything for granted. The fight over Keystone became the United States’ loudest, most expensive, most politically fraught environmental controversy in a generation. In the end, its fate came down to a question of power — with the greens, not the oil industry, wielding the political heft and grass-roots energy to sway Obama to their side.
American Petroleum Institute President Jack Gerard, the top advocate for the normally powerful oil industry, left no doubt Friday about what he thinks went wrong. “Obama has put extreme ideology over American opportunity," he said.
BIG STAKES ON BOTH SIDES
A defeat for Keystone was far from the conventional wisdom four years ago in Washington, which saw the pipeline as primed for Obama’s sign-off. The president was campaigning on an “all of the agenda” energy platform that included a big role for fossil fuels, while Hillary Clinton’s State Department was producing one environmental study after another that concluded Keystone posed little danger. Polls showed the project had the support of more than 60 percent of Americans.
Opposing it, however, was a new generation of in-your-face green activists who were re-energizing an environmental movement that had seen its agenda log-jammed in the Capitol. More than 1,200 of them were arrested in those first massive protests in 2011, and months later thousands returned to encircle the White House.
Those latter protests convinced Sierra Club Executive Director Michael Brune that the environmentalists would win, he said Friday. "When we were able to turn 10,000 people out in Washington, D.C., around a single pipeline, I knew,” he said.
Crucial acts in the Keystone passion play also took place far from the Beltway — in the Sandhills, legislative halls and courtrooms of Nebraska, and in the strip-mined oil sands of Alberta, Canada.
Steyer and other well-heeled liberal campaign contributors weighed in as well. “Over 175 significant donors to the Democratic Party have urged the president to reject this pipeline since late 2011,” political consultant Betsy Taylor, who coordinates a network of wealthy climate donors, said by email Friday.
Meanwhile, Obama’s public thinking on the pipeline appeared to evolve as his political fortunes fell and rose.
Former aides portrayed Obama as repulsed by the degree to which Keystone dominated the political echo chamber, a frustration he made evident Friday as he lamented the pipeline’s “overinflated role in our political discourse." Though he had privately said environmentalists were exaggerating the pipeline’s threat to the climate, he more frequently complained that Keystone’s supporters were overstating its economic bonanza — and he increasingly came to resent their attempts to force his hand.
“This pipeline would neither be a silver bullet for the economy, as was promised by some, nor the express lane to climate disaster proclaimed by others,” Obama said Friday as he announced his decision.
At the same time, Obama repeated one of the most disputed claims that environmentalists have used to discredit the project — the argument that Keystone would simply be an export pipeline, whose oil would flow “through our heartland to ports in the Gulf of Mexico and out into the world market.” (Backers say much of the oil would instead be refined in the U.S.) Secretary of State John Kerry’s written statement announcing his decision repeated greens’ favorite description for the heavy Canadian crude: “one of the dirtiest sources of fuel on the planet.”
THE BATTLE'S QUIET BEGINNINGS
On Sept. 19, 2008, a Canadian energy company little known to most Americans filed what should have been a routine permit application with the State Department.
The world’s descent into financial crisis was dominating the news — Lehman Brothers had filed for bankruptcy just four days earlier. Obama was preparing for his first debate against John McCain. Even environmentalists had little reason to pay much notice to TransCanada’s project, consumed as they were by the expectation that the next president, whoever he was, would push to enact some kind of climate change legislation.
But the new project was a big deal for TransCanada — and by extension the regime of Canadian Prime Minister Stephen Harper, a Conservative leader who staked his economic record on turning his nation into an “energy superpower,” fueled by an expansion of heavy oil production.
Before 2008, TransCanada made most of its money from natural gas, with a smaller share from green-energy sources like solar and wind. But that year, it unveiled an oil pipeline called Keystone, which began shipping up to 590,000 barrels of crude a day from Alberta to the Midwest in 2010. Now it was seeking to expand its pipeline network to the Gulf Coast — a venture it christened Keystone XL.
This oil would come from bitumen, a heavy hydrocarbon mined or steamed from deep underground the boreal forests of western Canada in an energy-gulping extraction process that makes it even more reviled by environmentalists than conventional fuel. The thick, tarry Alberta crude gives Canada the world’s third-largest oil reserves, behind Saudi Arabia and Venezuela.
With Venezuela and Mexico facing grim futures in the U.S. market, thanks to political and financial struggles, the company expected the United States to welcome the chance to import oil from its stable, friendly northern neighbor for decades to come. Meanwhile, studies estimated that building the pipeline would create several thousand spin-off jobs in construction and other industries, welcome news to Democratic-leaning labor unions, and it would help shore up the reelection hopes of Democratic lawmakers from oil- and gas-heavy states, including Louisiana Sen. Mary Landrieu.
Besides, Keystone would hardly be the first oil pipeline that would cross the U.S.-Canadian border.
“We’re a smallish Canadian company that builds infrastructure — why would we think any of our products that we’ve built many, many times over the decades would become a point in a presidential debate?” asked TransCanada spokesman James Millar. “I don’t think any of us could have predicted that.”
But some people would soon take notice of TransCanada’s project. They included U.S. environmental activists whose hopes of getting Congress to pass a massive climate bill ran aground when the Democrat-controlled Senate failed to pass cap and trade in 2010.
Bruised greens were eager to regain their footing. Keystone XL became their North Star.
One of those greens was Bill McKibben, a bespectacled Middlebury College scholar from Vermont — and neighbor of independent Sen. Bernie Sanders — who in 2007 founded a climate activist group called 350.org with social-media-savvy former students. (The group’s name comes from the carbon dioxide level in the atmosphere that scientists say would begin to trigger catastrophic climate change.) He seized on the pipeline issue in the summer of 2011, after NASA climatologist turned activist James Hansen published a warning that tapping Canada’s oil sands would be “essentially game over” for the global warming fight.
So McKibben and his supporters began what seemed to many at the time as a doomed-to-fail protest movement, more like a quixotic throwback to 1970s-era eco-activism than the sophisticated backroom lobbying campaign that the major environmental groups had waged on behalf of cap and trade. The smart money inside the Beltway saw Keystone as a slam-dunk, probably by the end of 2011.
Clinton, whose department would need to sign off on the project, signaled as much in a 2010 appearance in San Francisco where she said the administration was “inclined” to green-light it.
“We’re either going to be dependent on dirty oil from the Gulf or dirty oil from Canada … until we can get our act together as a country and figure out that clean, renewable energy is in both our economic interests and the interests of our planet,” Clinton said in her off-the-cuff remarks to the Commonwealth Club of San Francisco.
But fighting against a pipeline offered a purity that the Capitol Hill haggling had lacked. Obama had a simple choice: yes or no.
The anti-Keystone campaign relied on old-fashioned civil disobedience and some Hollywood star power — among the 1,200-plus activists arrested in a weeks-long sit-in outside the White House was actress Darryl Hannah. The demonstrators were undeterred by a night in jail, and undaunted when, in the middle of their sit-in, the State Department released an environmental study that found no major risks to granting TransCanada's permit.
They even took inspiration from unexpected sources, chuckling for years after a 2011 National Journal poll found more than nine in 10 “insiders” predicting the pipeline would proceed.
Months later, 350.org and Washington green groups summoned thousands of demonstrators to form a human chain around the White House, hoping that would have an impact on Obama’s thinking. Later protests saw arrests of eco-leaders like Brune, a former rainforest activist who brought a more in-your-face style of protesting to the 120-year-old Sierra Club.
FUROR IN NEBRASKA
Meanwhile, another anti-Keystone force was stirring more than 1,300 miles from Washington: In Nebraska, red-state ranchers and native Americans worried that leaks from Keystone could foul their soil and their biggest water source, the vast but shallow Ogallala Aquifer. Their case rested chiefly on the pipeline’s proposed route through remote northern counties where endangered whooping cranes cruise among piles of soil that give the region the moniker Sandhills.
The Sandhills, covering an estimated third or more of Nebraska, overlie the eight-state Ogallala region and include prime agricultural land in the Cornhusker State. Rural residents worried about disruptions the pipeline's construction would cause, as well as contamination if the pipeline leaks.
Nebraska has a surprisingly strong populist vein running through its deep-red political system. The state’s one-house, nonpartisan legislature meets in a Capitol building inscribed with an overt call to grass-roots engagement: “The salvation of the state is watchfulness in the citizen.”
Still, few players in the Keystone debate expected the debate to be swayed by a handful of heartland landowners, few of whom considered themselves environmentalists when the pipeline was first proposed. But the landowners started off suspicious of TransCanada's tactics in wooing local support, wariness that hardened into distrust as the company prepared to condemn land for the pipeline if necessary. As the years passed, some of Keystone’s conservative Nebraskan critics even grew more open to the climate cause.
The landowners’ activism still needed a flint to spark. That’s where Jane Kleeb came in.
Kleeb, a 42-year-old former Democratic organizer and MTV correspondent, attended her first public meeting on Keystone in May 2010. She came at the request of a National Wildlife Federation organizer who thought she could take on the obscure pipeline fight through her liberal-leaning nonprofit, Bold Nebraska.
Kleeb and her rancher allies did that and more, lobbying for state legislators to take action on the rules for deciding where pipelines can run. The opponents also filed challenges in state court that managed to gum up the project for years. They even swayed Nebraska’s Republican then-governor, Dave Heineman, who had publicly criticized the pipeline’s proposed route for crossing the beloved Sandhills.
Kleeb and her grass-roots cavalry set to work in 2010 and 2011, forcing Heineman to schedule a special state legislative session aimed at prodding TransCanada to accept a new route and crafting a new pipeline-siting bill. Heineman approved a deal that angered Kleeb and the ranchers, one that set new limits on future pipeline routes but allowed TransCanada to change Keystone’s path on its own, keeping the project moving.
Still, the opponents’ work paid off in Washington: In light of the wrangling in Nebraska, the State Department announced in mid-November 2011 that it was postponing its decision on Keystone’s national permit. The decision would now come sometime after the 2012 elections — putting off Obama’s politically no-win decision.
'POLITICS INVADED THE PROCESS'
Congressional Republicans suspected that Clinton, their longtime nemesis, had dragged out the review to spare Obama. So they insisted on giving the president a deadline in exchange for approving a must-pass tax bill before the end of 2011: Within 60 days, he had to decide yes or no on Keystone.
In January, Obama called the GOP’s bluff and said no.
But, he said, TransCanada was welcome to reapply. He said he was rejecting the permit solely because 60 days was not long enough for State to review the new Nebraska route.
“Politics invaded the process” after the route was moved, TransCanada’s Millar said, though he warned that “we’ve always looked at the political process as something we can’t control.”
Republicans in Congress developed an unusually close relationship with officials of Canada’s Conservative government during the Keystone fight. Canadian Ambassador Gary Doer and then-Natural Resources Minister Joe Oliver were regular fixtures at pro-pipeline press conferences.
“I will build that pipeline if I have to myself,” GOP presidential nominee Mitt Romney declared in April 2012.
And Obama at times didn’t sound much different, running for reelection on an “all of the above” energy platform that included room for both green energy and fossil fuels. He gave one March 2012 speech from a TransCanada pipe storage yard near Cushing, Okla., where he boasted that “my administration has approved dozens of new oil and gas pipelines over the last three years — including one from Canada.”
“Anybody who suggests that somehow we’re suppressing domestic oil production isn’t paying attention,” Obama added in front of the piles of green-tinted pipelines. He also used the speech to order speeded-up approval for Keystone’s slightly less controversial southern half, which would connect Oklahoma’s oil storage hub with Texas.
But almost as soon as Obama won a second term, he shifted gears: making climate change a focus of his inauguration speech and using a June 2013 climate address at Georgetown University to lay down an ultimatum: He would approve the pipeline “only if this project does not significantly exacerbate the problem of carbon pollution.”
That promise marked the beginning of the end.
Canada’s uncharacteristically aggressive lobbying of the Obama administration to approve the pipeline rose as high as Harper, who declared in 2013 that his nation “won’t take no for an answer.” The Canadian government spent more than $20 million in D.C. promoting the country’s energy industry, including placing ads in Metro stations near the White House.
Meanwhile, TransCanada tried stay above the politically fray. That appeared to backfire as its fortunes were inextricably linked with Republicans’ machinations.
“We lost a few of the senators we would have preferred not to lose” in the early days of the fight, said Tiernan Sittenfeld, senior vice president of the League of Conservation Voters. But after 17 Democrats joined Sen. John Hoeven (R-N.D.) and the rest of the GOP on a symbolic pro-Keystone vote during a budget debate in March 2013, there “wasn’t a whole lot of ground to take” from the anti-pipeline side, she added.
Those 62 pro-Keystone senators, too little to force their will on Obama through a veto override, proved a high-water mark for bipartisan support in the Senate, as red-state Democrats who supported the pipeline lost their races and opposition hardened among more liberal Democrats. Not until after the GOP picked up six seats in the 2014 midterm election would the pipeline claim the same level of support.
About a week before that symbolic budget vote, GOP senators left a meeting with Obama convinced that he had committed to making a decision on the project by the end of 2013. But Hoeven, one of the pipeline’s biggest backers, was already convinced the answer would be no.
“When he didn’t make that decision” in 2013, Hoeven said in an interview, supporters concluded that Obama planned “to defeat it instead with endless delays.”
Still, the tune from the State Department’s environmental reviews remained the same: Keystone would have no significant impact on the warming planet, the department declared in its second “final” study of the project in January 2014.
That review was a “sham,” fumed Democratic Rep. Raul Grijalva of Arizona, as greens began poking holes in the department’s reasoning. But to Keystone and its supporters, the message Obama needed to hear was that the facts were on Keystone’s side.
“No matter how much noise they make or how much misinformation they spread, the science does support this project,” TransCanada CEO Russ Girling said.
Then, deliverance for the greens arrived once again from Nebraska.
THE GOOD FRIDAY SURPRISE
Girling was vacationing abroad with his family that April 2014 when he got a call from the State Department. Once again, the department was indefinitely delaying its decision because of events in Nebraska, this time in response to a state Supreme Court case brought by Kleeb and her allies.
“There weren’t any thank-yous, I can tell you that,” Girling recalled in an interview soon after that. “And there wasn’t much discussion. It was a straightforward, one-way dialogue.”
Keystone’s supporters won the Nebraska case nine months later, but another crucial U.S. election had come and gone. Pipeline supporters like Landrieu were swept away. Obama had even less political motivation to approve the pipeline.
By the time 2015 dawned, veterans of the Keystone wars inside TransCanada were growing mentally prepared for the pipeline’s rejection. In the spring, the company’s home-province champions in the Conservative Party fell to a stunning defeat in Alberta’s election. October brought Harper’s ouster at the hands of young Liberal leader Justin Trudeau.
The company tried one final gambit this week, asking the State Department for a delay that would have left the decision in the hands of the next president. Keystone’s only hope was that that president would be a Republican.
But this time, Obama was in no mood to wait. Kerry’s signature on the official recommendation to nix Keystone came Tuesday, hours after TransCanada’s last-ditch salvage attempt.
And on Friday, the president delivered the final blow.
Millar, the pipeline company’s veteran spokesman, warned greens that Keystone’s defeat will prove a “Pyrrhic victory” — the world’s appetite for oil isn’t going away, no matter the markets’ current doldrums.
“People have made Keystone into, ‘If we just stop it, we’ll be fine and our future will be sunshine and roses,'” Millar said. “Well, that’s not realistic.”
But foes like McKibben took exactly that message from their victory. The climate activist, who became the unofficial godfather of the anti-Keystone movement, credited its David-and-Goliath spirit with invigorating his personal belief that greens can topple Big Oil.
“It’s taught me not to be as defeatist in the face of the richest industry on Earth as I think I was,” he said.
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Republicans Vow Continued Fight on Keystone After Rejection
Nov 9, 2015 | BNA Daily Environment Report
By Ari Natter
Senate Majority Leader Mitch McConnell (R-Ky.) and other congressional Republicans vowed not to give up on legislative efforts to get the Keystone XL pipeline approved, but analysts said there was little they could do after President Barack Obama announced Nov. 6 that the administration rejected TransCanada Corp.'s application to build the project.
Obama's decision makes it all the more unlikely Republicans would succeed in attaching language approving Keystone to a must-pass bill or muster the additional four votes needed to overcome the White House veto of legislation deeming the proposed heavy oil pipeline approved.
“The reality is it may take until we get a new administration,” Sen. John Hoeven (R-N.D.), one of the Senate's chief backers of the $8 billion project, told Bloomberg BNA in a phone interview. “Given that he just vetoed it, obviously it's going to be hard to get additional Democrats to join us.”
Obama announced the administration's decision to reject the project, proposed to carry crude from Alberta oil sands to Gulf Coast refineries in Texas, in remarks given at the White House, formally ending a seven-year review of the pipeline, which had come to embody his commitment to addressing climate change.
Climate Leadership Cited
“Shipping dirtier crude oil into our country would not increase America's energy security,” Obama said in remarks three weeks ahead of international climate talks in Paris. “America is now a global leader when it comes to taking serious action to fight climate change. Frankly, approving this project would have undercut that global leadership, and that is the biggest risk that we face. Not acting.”
Congressional Republicans and others said they weren't surprised by the decision, which the White House had been telegraphing for months, and said they would continue to fight for the pipeline(45 DER A-31, 3/9/15)(45 DEN A-1, 3/9/15)
“Given this project's importance to North American energy independence, the question still remains not if but when Keystone will be built. Republicans have no intention of giving up on common-sense jobs ideas like Keystone,” McConnell said in a statement. “Our nation's long-term need for the energy and jobs Keystone would provide will certainly outlast the little over a year remaining in the term of the current Administration.”
Little Congress Can Do
Still, lawmakers have little recourse, said Brigham McCown, who formerly served as acting administrator of the Pipeline and Hazardous Materials Safety Administration during the George W. Bush administration.
“I don't think there is much the Congress can do at the moment other than to point out how misaligned the president's energy policy is,” McCown said in an interview. “We get more oil from Canada then any other country. This decision ensures it will still get to market, but less effectively, less efficiently and with more spills.”
The oil that would have flowed through the 1,179-mile long pipeline is expected to travel by rail, for a total of 1,400 rail cars of crude a day, and increase the likelihood of accidents occurring, he said.
Democrats, Environmentalists, Praise Decision
Meanwhile, environmentalists and other opponents of the project heralded the president's decision.
“I want to thank the Obama Administration for protecting the health of the American people and the health of the planet by rejecting the ill-advised Keystone tar sands pipeline, which would have brought the filthiest oil known to humankind into our country in large amounts,” Sen. Barbara Boxer (D-Calif), the top Democrat on the Senate Environment and Public Works Committee, said in a statement.
Legislation (S. 1) that would have circumvented the Obama administration's review of the Keystone XL pipeline was vetoed by the president in February, and a veto override vote in the Senate fell five votes short of the 67 needed (43 DEN A-16, 3/5/15).
Hoeven's office said the number of Senate supporters actually totals 63 because Sen. Joe Donnelly (D-Ind.), a co-sponsor of the legislation, wasn't present for the vote.
“I don't see any Congress members in the Senate flipping their take on Keystone,” Rob Barnett, an analyst with Bloomberg Intelligence, said in an interview. “The stakes are higher now.”
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Citing 'American Leadership' In Paris Talks, Obama Rejects Keystone Pipeline
Nov 6, 2015 | InsideEPA
By Lee Logan
Linking the decision to fast-approaching international talks in Paris to address climate change, President Obama has rejected a key permit for the controversial Keystone XL tar sands pipeline that had become a major symbol in longstanding disagreements on energy and climate issues.
Obama announced the decision to reject a finding that the pipeline was in the “national interest” during a Nov. 6 address at the White House, flanked by Vice President Joe Biden and Secretary of State John Kerry.
“The United States is now a global leader when it comes to taking action on climate change,” Obama said, citing “American leadership” as a key factor driving more than 150 countries to submit climate mitigation pledges as part of next month's Paris talks.
“Approving this project would have undercut that global leadership. And that's the biggest risk we face -- not acting,” the president said.
That leadership may already be proving apparent, helping the the administration secure stronger commitments from other countries than it otherwise might have. For example, Chinese leaders reportedly agreed to a personal request from Obama for a steeper emissions reduction commitment based in part on the president's commitments, according to former EPA Administrator William Reilly.
Obama also cited three additional factors for rejecting the Keystone pipeline, which would have carried high-carbon Canadian tar sands to refineries along the Gulf of Mexico.
Obama said Keystone “would not make a meaningful long-term contribution to our economy” and that it would not lower gas prices -- as evidenced by the precipitous fall in gas prices over the past several years. He also said it would not boost the country's “energy security,” given that the United States has been increasing domestic oil supplies for years and now produces more oil than it buys from other countries.
Environmentalists hailed the move as the first major fossil fuel project rejected because of its climate impact. “Rejecting Keystone XL is a critical step forward as we reduce our dependence on fossil fuels,” billionaire climate advocate Tom Steyer said in a statement. “It’s time for our leaders to continue this momentum by laying out a plan that will get us to more than 50 percent clean energy by 2030.”
The World Resources Institute's Jennifer Morgan added that “the rejection of the Keystone pipeline is a signal that should reverberate to all parties involved in the Paris climate talks. It shows that the Obama administration is serious about moving the country toward clean, renewable energy sources.”
Source of Friction
Industry groups and congressional Republicans -- who earlier this year failed to override Obama's veto of legislation to approve the project -- were sharply critical, however. "This decision will cost thousands of jobs and is an assault to American workers. It's politics at its worst,” the American Petroleum Institute said in a statement, adding that “the White House has placed political calculations above sound science.”
Although Obama said Keystone would not be the “express lane to climate disaster,” he said little else that would undercut advocates' interpretation.
“Today we're continuing to lead by example,” he said. Arguing that if policymakers want to “prevent large parts of this earth from becoming inhospitable . . . we're going to have to keep some fossil fuels in the ground rather than burn them and release dangerous pollution into the sky.”
Underscoring the administration's long-standing argument on fossil fuel development, the president said the United States “will continue to rely on oil and gas as we transition -- as we must transition -- to a clean energy economy. That transition will take some time, but it's also going more quickly than any anticipated.”
The Keystone decision will likely be cited by environmentalists to continue a push to reject fossil fuel extraction projects, given that they have been criticizing the administration for approving domestic coal and natural gas infrastructure even as it moves forward with a host of regulations intended to restrict greenhouse gas emissions in the electricity, transportation and other sectors.
The Keystone permit decision -- which has been pending for seven years -- has until recently been a source of friction between the United States and Canada.
Former Prime Minister Stephen Harper, a member of the Conservative Party who hailed from oil-rich Alberta, had been an ardent proponent of the project. But Harper's party recently lost its hold on parliament, ushering in new Prime Minister Justin Trudeau of the Liberal Party.
Trudeau supported Keystone, though he has also pledged to be more aggressive than Harper on climate issues.
During his address, Obama said that he spoke with the Canadian leader, who “expressed disappointment.” But he said they “both agreed that our close friendship on a whole range of issues, including energy and climate change, should provide the basis for even closer coordination going forward.” The president also argued that Keystone has “occupied what I frankly consider to be an over-inflated role in our political discourse.” He argued the pipeline was used as a “campaign cudgel for both parties rather than a serious policy matter.”
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Secret E-Mails Support Clean Power Plan Stay: Group
Nov 9, 2015 | BNA Daily Environment Report
By Anthony Adragna
E-mails hidden from the public rulemaking docket provide further evidence for a federal appeals court to grant an immediate stay of the Environmental Protection Agency's Clean Power Plan, according to a filing(West Virginia v. EPA, D.C. Cir. , No. 15-1363, brief filed 11/5/15).
The Energy and Environment Legal Institute, a free market advocacy group, Nov. 5 said former senior policy adviser Michael Goo used “impermissible” private e-mail communications with environmental advocates in preparing the regulation. Failure to place those documents into the public record violates the Administrative Procedure Act, the filing said.
“Commenters could not know that it was through ex parte contacts that the rule was drafted with third parties with whom Mr. Goo previously worked prior to joining EPA, and which then lobbied him at EPA on these two rules, to ensure a particular outcome,” the filing said. “The failure to properly make this material available in the public docket justifies the vacating of this rule.”
A coalition of states and multiple industry groups have already asked the U.S. Court of Appeals for the District of Columbia Circuit to immediately grant a stay of the EPA regulation (RIN 2060-AR33; 80 Fed. Reg. 64,661), arguing it imposes immediate burdens on utilities and states and violates the Clean Air Act.
More than half the states and dozens of additional entities have already challenged the centerpiece of President Barack Obama's efforts to address climate change. The federal appeals court ordered the issue of whether to grant an immediate stay of the regulation be fully briefed by Dec. 23 (210 DEN A-1, 10/30/15).
There has been congressional interest in whether Goo improperly coordinated with environmental groups to skirt transparency requirements (115 DEN A-1, 6/16/15).
Multiple Stays Sought
Along with the filing, two additional groups—Peabody Energy Corp. and the Basin Electric Power Cooperative, Inc.—sought immediate stays of the regulation. The court-ordered deadline to file such motions was Nov. 5.
In its petition, Peabody said the regulation is unconstitutional because it usurps powers intended for Congress, violates the principles of federalism and goes against the Fifth Amendment by “forcing coal companies to bear a burden that ought to be shared by all members of society.”
“The rule flies in the face of structural principles that operate to check governmental power, safeguard individual liberty, and vindicate ‘the principle that ours is a government of laws, not of men,' ” the filing states.
Additional stay motions have been filed by a coalition of industry groups, the National Mining Association, the state of Oklahoma, the state of North Dakota, a coalition of 24 other states and the Utility Air Regulatory Group.
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Murkowski Officially Launches Re-Election Bid
Nov 9, 2015 | E&E Daily News
By Margaret Kriz Hobson
Early Friday, Senate Energy and Natural Resources Chairwoman Lisa Murkowski boarded a plane in Washington, D.C., and flew to Alaska to tell an enthusiastic group of supporters something they already knew: She's running for re-election.At a crowded music venue here in the state's most populated city, the Alaska Republican said that since landing, she "got off the plane, went home, put on some lipstick, and [her husband] Verne [Martell] and I went down to the Division of Elections and I wrote my check" to run in the state's August 2016 Republican primary.
She promised supporters that this time around, they won't need to help her mount a write-in campaign to retain her Senate seat.
In 2010, Murkowski was defeated in the Alaska Republican primary by tea party candidate Joe Miller. But she came back to win the general election as a write-in candidate with the support of the state's unions and Native corporations.
Holding up her arm to display a wristband distributed by her 2010 campaign to help voters remember how to spell her last name, Murkowski said: "It's hard to believe that it's been five years since you were all wearing these blue bands that were your spelling cheat sheet."
"We're not going to have to do that in 2016," she proclaimed. "We're going to do it the good old-fashioned way. We're going to work hard every day. We're going to come together as Alaskans on the issues we care most about."
Currently, Murkowski has no challengers in the Republican primary. But some Republicans predict Miller will jump into the Senate primary race before Alaska's June filing deadline.
Miller ran for the 2014 Republican nomination for Senate but lost to Dan Sullivan, who ultimately beat Democratic Sen. Mark Begich in last November's general election.
Murkowski, 58, is no stranger to political controversy. She initially came to the U.S. Senate in 2002 when her father, then-Sen. Frank Murkowski, was elected Alaska governor. He appointed her to fill his Senate seat, triggering a political firestorm in the state.
Since then, Lisa Murkowski has taken the same professional path as her father in moving up the ranks on the Senate Energy and Natural Resources Committee and became chairwoman in 2015. She also heads the Senate Interior, Environment and Related Agencies Appropriations Subcommittee.
During her 13 years in the Senate, Murkowski has sometimes been accused of being more moderate than Alaska's hardcore conservative Republican base.
But since taking over as chairwoman of the Senate Energy Committee, she's emerged as a major critic of the Obama administration on issues relating to federal land-use management, water pollution regulations and climate change controls. She's also a major champion of lifting the nation's ban on exporting domestic crude.
Murkowski's re-election campaign Web page emphasizes those conflicts with the White House, opening with her statement that "I have tried to work with this administration -- even though they've made it extremely difficult every step of the way -- but those days are now officially over."
A week before filing for re-election, Murkowski attacked the Obama administration's energy policies in the Republican Party's weekly radio address to the nation. She charged that the White House's actions "ignore the will of hard-working Alaskans" by closing the door to new oil production needed to sustain the Trans-Alaska pipeline (E&E Daily, Nov. 2).
Specifically, she attacked the Interior Department for limiting oil and gas development in the National Petroleum Reserve and the coastal plain of the Arctic National Wildlife Refuge. Murkowski accused federal regulators of creating a "constantly shifting regulatory environment" that contributed to Royal Dutch Shell PLC's decision to abandon its $7 billion exploration program in the Chukchi Sea. She also criticized the administration for canceling two future oil and gas lease sales in the Alaskan Arctic.
Speaking to enthusiastic supporters in Anchorage, Murkowski repeated her call for expanded oil and gas development in Alaska.
"We're going to continue the fight for ANWR," she told the cheering crowd. "We're going to continue the fight for access to the National Petroleum Reserve. We're going to continue the fight for offshore. Because it is not over yet. ... We are not giving up our opportunity to access our resources. We're going to do the right things for Alaskans."
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EPA's Revised Boiler MACT Expands 'Clean Fuel' Compliance To Biomass
Nov 6, 2015 | InsideEPA
By Stuart Parker
EPA's final revised maximum achievable control technology (MACT) air toxics rule for “major” source boilers expands the definition of “clean fuels” approved as a compliance option to cut emissions during boiler startups to include certain types of biomass, pleasing industry groups although EPA retained other provisions that they oppose.
The reconsidered boiler MACT -- which was announced last month and published on EPA's website Nov. 5 -- largely adopts alternative compliance provisions for startup and shutdown periods outlined in the earlier proposed version of the revised rule. EPA is offering the alternatives, such as use of clean fuels, because traditional emissions control devices do not function efficiently when boilers are either starting up or shutting down.
The rule confirms the proposal's language that operators of major source boilers -- those emitting 10 tons per year (tpy) or more of one hazardous air pollutant (HAP) or 25 tpy of a combination of HAPs -- will be able to use “work practices” during startup in lieu of compliance with numeric MACT pollution limits.
Part of the work practice requirement is that boiler operators use clean fuels to minimize pollution. EPA in the rule expands the list of approved clean fuels to include certain gases and also “clean dry biomass.”
This approach pleases forest industry groups. In an Oct. 30 statement anticipating the rule's signature, American Wood Council (AWC) President and CEO Robert Glowinski said, “With just three short months before the compliance deadline, AWC is pleased that this critical piece of the rulemaking is completed. Wood product manufacturers produce almost 80 percent of their own energy through the use of carbon neutral biomass residuals, and this reconsideration will allow mills to avoid costly retrofits required to burn alternative fuels.”
Separately, the American Forest and Paper Association in an Oct. 30 statement said, “With the compliance deadline of January 2016 looming, we're pleased that the final Boiler MACT reconsideration rule has been completed and addresses many of the issues we asked EPA to reconsider, particularly around how to safely and quickly start-up and shutdown our boilers while preventing damage to control equipment.”
Boiler operators will be required to engage particulate matter pollution controls within one hour of starting to burn “non-clean fuels” such as coal, and all pollution controls within four hours of the start of supplying “useful thermal energy,” the same formulation as in EPA's proposed reconsidered rule.
EPA is retaining from the proposal a carbon monoxide (CO) limit from its prior MACT rule set at 130 parts per million (ppm), despite industry concerns over the correct level of such limits and environmentalists' doubts about use of CO as a “surrogate” for other pollutants, such as polyclic aromatic hydrocarbons.
The final rule further retains the proposal's continuous “parameter” monitoring requirements, with minor changes. Environmentalists generally prefer actual continuous emissions monitoring to “parametric” monitoring that checks monitor performance rather than direct readings of pollution.
Pending Litigation
Meanwhile, the U.S. Court of Appeals for the District of Columbia Circuit is poised to hear oral argument Dec. 3 in pending litigation over other aspects of the major boiler MACT, as well as related challenges to a boiler air toxics rule for smaller “area” source boilers and an emissions rule for solid waste incinerators.
The three-judge panel hearing United States Sugar Corp. v. EPA and the related cases consists of three Republican nominees, Karen LeCraft Henderson, Janice Rogers Brown and Thomas Griffith. Litigation over the MACT standards has been delayed for years by EPA's reconsideration of the rules.
The litigation is wide-ranging, covering such topics as how EPA sets its MACT “floors,” or maximum emissions limits, with environmentalists claiming the floors are too weak, and industry that they are too stringent.
One issue likely to arise is EPA's use of the Upper Prediction Limit, a statistical tool common to several EPA air toxics rules -- including the agency's flagship air toxics rule for power plants currently on remand to the D.C. Circuit -- that environmentalists say allows EPA to set MACT floors at less stringent levels than the law requires.
Environmentalists unhappy with the panel selection have filed a Nov. 6 motion for the court to “correct” its choice, in the light of what they claim is a commitment by the court to assign the same panel that earlier heard a related case on EPA's rule defining “non-hazardous secondary materials.” The rule determines what materials may be burned as “fuel” under the MACT rules, or as “waste” under the stricter incinerator standards.
In Eco Services Operations LLC v. EPA, the court June 3 rejected challenges by both industry and environmentalists, allowing EPA's rule to stand. The panel that heard the suit consisted of Judges David Tatel and Robert Wilkins, both Democratic appointees, and David Sentelle, a Republican appointee. However, environmentalists claim that a Feb. 26 court order requires that the same panel hear the three cases scheduled for Dec. 3 arguments. This followed an earlier court order that required all four cases be heard by the same panel, environmentalists say in their motion. They say, “briefing in all four cases then proceeded on a coordinated basis, with the understanding that all four sets of briefs would be read and considered by the same panel of three judges.”
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EPA Alters Startup Requirements Under Boiler Standards
Nov 9, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency revised its air toxics standards for major source industrial boilers to include alternative work practice standards that can be adhered to during startup procedures.
The final rule (RIN 2060-AS09), signed Nov. 5, updates the maximum achievable control technology (MACT) standards for boilers and was promulgated to address industry concerns in advance of the Jan. 31, 2016, compliance deadline under the standards.
The changes made by the EPA include an alternative definition of startup that includes clarified testing activities and other changes to address industry concerns that the definitions included in the boiler MACT regulation were not sufficiently clear.
The agency also adopted work practices that allow the use of clean fuels during boiler startup and shutdown. Under the alternative work practice, sources must engage all applicable pollution controls devices necessary to meet the emissions standards within four hours after useful thermal energy is first supplied to the boiler. The new practice also requires particulate matter controls to be engaged within an hour of the introduction of non-clean fuels.
Industry groups issued statements after reviewing the boiler MACT revisions on Oct. 30 that welcomed the changes but also cautioned that meeting the emissions standards will prove costly. The boiler MACT rule (RIN 2060-AQ25; RIN 2060-AR13) applies to more than 14,000 existing boilers and is estimated by the EPA to cost industry about $1.6 billion annually. Major source boilers are commonly found at chemical plants, petroleum refineries and other industry facilities.
Robert Glowinski, president and chief executive officer of the American Wood Council, said in a statement that the EPA's decision to update the regulatory definition of “clean fuels” under boiler MACT to include dry biomass will be helpful to the wood product industry.
“Wood product manufacturers produce almost 80 percent of their own energy through the use of carbon neutral biomass residuals, and this reconsideration will allow mills to avoid costly retrofits required to burn alternative fuels,” Glowinski.
High Compliance Costs Cited
Donna Harman, president and chief executive officer of the American Forest & Paper Association, also issued a statement welcoming the reconsideration rule, which she said would help address several issues, including how to safely start up and shut down boilers without damaging pollution control equipment.
“The agency has been responsive to many of our implementation concerns as evidenced in this latest rule,” Harman said. “However, policy makers must not lose sight of the fact that this rule is only one of a dozen or more potentially affecting our industry to the tune of $10 billion over the next decade.”
Glowinski also cited the high costs of the boiler MACT rule, which he said will require “millions of dollars” of capital expenditures from the American Wood Council's member companies.
While the reconsideration of the boiler MACT rule is now complete, litigation over the standards will soon be considered before the U.S. Court of Appeals for the District of Columbia Circuit.
The court on Dec. 3 will hear oral arguments in litigation over the boiler MACT rule, as well litigation over emissions standards for area source boilers (RIN 2060-AM44; RIN 2060-AR14) and commercial and solid waste incinerators (RIN 2060-AO12; RIN 2060-AR15). Industry had asked the court to schedule arguments earlier in 2015 due to the January 2016 compliance deadline, but the court rejected that request in July (U.S. Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, order filed 7/21/15; Am. Forest & Paper Ass'n v. EPA, D.C. Cir., No. 11-1125, order filed 7/21/15; Am. Chemistry Council v. EPA, D.C. Cir., No. 11-1141, order filed 7/21/15; 141 DEN A-4, 7/23/15).
The oral arguments are scheduled to be heard by Judges Karen LeCraft Henderson, Janice Rogers Brown and Thomas Griffith.
Environmental groups involved in the litigation filed a Nov. 6 motion asking for the court to “correct” the panel assignment to be consistent with an October 2013 order that said four related cases would be heard by the same three-judge panel. The fourth case, over the EPA's nonhazardous secondary materials rule, was decided in June by Judges David Tatel, Robert Wilkins and David Sentelle (Eco Servs. Operations LLC v. EPA, 2015 BL 175759, D.C. Cir., No. 11-1189, 6/3/15; 107 DEN A-5, 6/4/15).
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Fine Particulate Arguments Focus on Practical Effect
Nov 9, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Oral arguments over the Environmental Protection Agency's implementation rule for fine particulate matter standards mostly focused on jurisdictional issues, namely whether a ruling in favor of environmental groups challenging the rule would have any practical effect (WildEarth Guardians v. EPA, D.C. Cir., No. 14-1145, argued 11/6/15).
Judge Sri Srinivasan of the U.S. Court of Appeals for the District of Columbia Circuit spent much of the Nov. 6 oral argument asking both the federal government and a coalition of environmental groups to explain the effects that vacatur of the implementation rule would have. The rule at issue (RIN 2006-AS12) classified all areas that failed to meet the fine particulate standards as “moderate” nonattainment areas, gave states six years to demonstrate compliance in those areas and reset the deadline for submitting a state implementation plan to Dec. 31, 2014.
Paul Cort, an Earthjustice attorney representing WildEarth Guardians and other environmental petitioners, said petitioners have identified “clear legal consequences” of such a ruling, even though that deadline for state implementation plan submittal has already passed. He said that the “reset” of the SIP submittal deadline, which the petitioners alleged is illegal under the Clean Air Act, has allowed San Joaquin Valley, Calif., to request a “voluntary redesignation” from moderate to serious nonattainment.
The voluntary redesignation process, which Cort said is only available within an 18-month window following the planning deadline, gives areas four years to submit a new implementation plan including the more stringent pollution control requirements for a serious nonattainment area. Cort said that without the “reset” planning deadline, San Joaquin Valley would have been unable to request a voluntary redesignation and only would have had the standard 18 months to submit a serious nonattainment SIP.
However, Brian Lynk, the Justice Department attorney who argued on behalf of the government, said the EPA has long held that it has the discretion outside of that “18-month window” to approve a voluntary redesignation request. The agency for more than 20 years has held that it can approve such a request up until the deadline for the agency to make a formal determination that an area has missed its attainment date, Lynk said. Therefore, Lynk argued, vacatur of the implementation rule's deadlines would have no effect on availability of the voluntary redesignation process for states.
Discussion of Merits
The court did eventually reach the merits of the case, specifically the petitioner's arguments that the EPA's implementation rule illegally changed statutory deadlines for submitting SIPs under the 1997 and 2006 fine particulate standards. The rule gave nonattainment areas until Dec. 31, 2014, to submit their plans, though petitioners argued that the plans for the 1997 standards should have been submitted by Oct. 5, 2006, and plans for the 2006 standards should have been submitted by June 14, 2011.
The updated implementation rules were promulgated in response to a 2013 D.C. Circuit ruling that found the EPA had originally implemented the fine particulate matter standards under the wrong subpart of the Clean Air Act (NRDC v. EPA, 706 F.3d 428, 75 ERC 1961, 2013 BL 39092 (D.C. Cir. 2013); 04 DEN A-6, 1/7/13).
Cort argued that the Clean Air Act contains clear statutory deadlines for the submittal of implementation plans under national ambient air quality standards. He described the implementation rule as an attempt to “retroactively absolve” states of the consequences of missing their deadlines for SIP submittal.
“Congress spoke to what happens when deadlines are missed,” he said.
Judge Stephen Williams, who participated in arguments via telephone, appeared unsympathetic to that argument. He said Congress established those deadlines under the Clean Air Act so a “sensible planning process” could occur to implement national air standards.
Srinivasan also cited Congressional intent, wondering whether Congress could have foreseen a circumstance where a national air standard was initially implemented under the wrong subpart of the Clean Air Act. He added that Congress clearly intended to give states the ability to voluntarily redesignate areas and obtain extra time to develop a state implementation plan, an opportunity that would be removed under the petitioners' arguments.
Judge Douglas Ginsburg, the third member of the panel, did not participate in oral arguments. Ginsburg will consider the case based on an audio recording of the arguments, Srinivasan said.
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Judges Wrestle With Authority, Remedy In Suit Over Stricter PM Air Plans
Nov 6, 2015 | InsideEPA
By Stuart Parker
Appellate court judges at Nov. 6 oral argument in a suit filed by advocates seeking to force stricter fine particulate matter (PM2.5) controls on states wrestled with whether they have authority to hear the case and what remedy they could order, in a case that poses a test for when EPA must retroactively apply certain Clean Air Act mandates.
In the lawsuit, WildEarth Guardians, et al. v. EPA, environmentalists are urging the U.S. Court of Appeals for the District of Columbia Circuit to vacate a June 2014 agency rule imposing stricter air law “subpart 4” PM2.5 control requirements on states prospectively under tight deadlines. The mandates are more stringent than weaker “subpart 1” provisions that the agency used with later deadlines, but which advocates argue are now unlawful.
EPA's rule responded to a 2013 D.C. Circuit ruling in Natural Resources Defense Council (NRDC) v. EPA that said EPA had wrongly implemented its PM2.5 standards under the less stringent “subpart 1” requirements that apply generally to all six national ambient air quality standards (NAAQS). After the ruling, advocates urged EPA to apply the tougher measures in areas that had earlier been deemed in nonattainment with the PM2.5 NAAQS.
The agency's June 2014 rule rejected those calls, making the revised rule prospective because the court did not vacate a separate rule requiring states to submit plans solely under weaker subpart 1 requirements.
Whatever the court rules will have important implications not only for the emissions control plans that states craft for complying with the agency's 1997 PM2.5 national ambient air quality standard (NAAQS) of 65 micrograms per cubic meter (ug/m3) over 24 hours, but also the agency's tighter 2006 limit of 35 ug/m3. A 2012 rulemaking retained the 2006 24-hour standard, but tightened the annual standard from 15 ug/m3 down to 12 ug/m3.
The eventual decision by the panel of Judges Sri Srinivasan, Stephen Williams and Douglas Ginsburg could also set new precedent on the retroactive application of air law requirements. Srinivasan was the only judge to attend argument in person. Williams participated by telephone, and Ginsburg was absent and will review the argument record later.
Environmentalists say EPA lacks legal authority to change deadlines enshrined in the air law -- even where these deadlines may have already passed, and say this means the court must scrap the June 2014 rule.
EPA in the suit claims that this will achieve nothing in the real world, as the jurisdictions primarily affected by the change, which are both in California, are already doing everything possible to comply with the subpart 4 provisions and to meet the NAAQS. The agency in briefing further argued that applying the subpart 4 deadlines as written in the statute would in fact require administrative action by the agency -- and this would be unlawfully retroactive.
The subparts have key differences in how states must craft state implementation plans (SIPs) detailing how they will attain the NAAQS. For example, under subpart 1, EPA has discretion to decide how severe the "nonattainment" status of an area is when it is exceeding the NAAQS, and can extend attainment deadlines by up to 10 years.
In contrast, under subpart 4, EPA must classify an area as in "moderate" or "serious" nonattainment with a NAAQS, attainment deadlines can only be extended five years, and serious areas failing to meet an attainment deadline must then cut pollution by five percent annually.
According to environmentalists' claims in unrelated litigation, states had to submit PM2.5 SIPs to EPA by June 14, 2011, under subpart 4, while EPA says that under the subpart 1 schedule the date was Dec. 14, 2012, according to the original deadlines.
Judges' Questions
At argument, rather than focusing on the retroactivity dispute, the judges asked most questions on the issue of whether the court has jurisdiction to hear the case, and whether the court can provide meaningful redress.
Attorney Paul Cort, who argued for NRDC in the 2013 case and is representing environmentalists in the PM2.5 suit, faced tough questions on the court's jurisdiction from Srinivasan.
Cort argued that “if there is any legal consequence” of EPA's June 2014 rule, then the court must vacate it because the agency has overstepped its authority by not imposing the tighter deadlines. A legal consequence would include, for example, granting a state longer to submit a SIP showing how it would attain the NAAQS.
“I'm not sure that's right,” Srinivasan responded, asking Cort what happens if there is no effective relief that the D.C. Circuit could grant -- and hence no jurisdiction for the court.
Cort replied that the rule does have real-world consequences that can be redressed. If the court were to vacate the rule, it would cut from four years to 18 months the time areas applying for “voluntary” reclassification to a more serious level of nonattainment to submit SIPs. This would be the case for the San Joaquin Valley of California, which along with the South Coast, which covers the greater Los Angeles area, experiences bad PM2.5 pollution.
San Joaquin is seeking reclassification from “moderate” to “serious” nonattainment status, which requires tougher pollution controls but allows areas longer to meet the NAAQS. “If you pick at one thread” of the statute's timelines, “then the whole thing starts to unravel,” Cort said.
Judge Williams was consistently skeptical of environmentalists' position. He challenged Cort's position that the deadlines “flow from the statute,” saying, “it sounds to me like that is a verbal quibble to say that is not backdating” deadlines. “I assume Congress set the deadlines so that a sensible planning process can go forward,” Williams said, asking Cort if the the real consequence of his argument “is a sharply compressed schedule.”
Cort replied that 18 months is plenty of time for states to submit their SIPs.
Srinivasan, meanwhile, also said that in the real world, “nobody knew” that subpart 4 deadlines applied. He pressed Cort on why environmentalists want to eliminate the option of areas to voluntarily reclassify and buy themselves more time to submit SIPs, as provided by Congress.
Cort replied that this possibility was intended to bring about better air quality more quickly, by ensuring imposition of tougher controls, but that would not be the case here.
Department of Justice attorney Brian Lynk, representing EPA, said there “is not a tangible consequence in terms of clean air” of forcing states to submit SIPs earlier, as the California areas concerned are already either attaining the NAAQS or otherwise taking all practical steps to limit PM2.5 emissions.
However, vacating the classification rule would create serious confusion in the states, in part because older EPA rules, based on subpart 1, have not been vacated by the D.C. Circuit, notwithstanding its finding in NRDC.
Classification Rule
As a result, Lynk said that vacating the classification rule would mean states revert to earlier rules that are inconsistent with that ruling.
Furthermore, there is already litigation brought by environmentalists in the U.S. District Court for the Northern District of California, in Center for Biological Diversity, et al. v. EPA, over EPA's failure to comply with various SIP-related deadlines established by the classifications rule.
Lynk also said EPA has a longstanding legal interpretation that allows the agency more flexibility in conducting reclassifications of areas to more serious nonattainment status than environmental petitioners say is the case. EPA holds the view that it can reclassify an area at any time up until an area's attainment deadline. For the South Coast and San Joaquin areas, this means until June next year, Lynk said.
Environmental petitioners, however, say that EPA is time-limited under the air law at an earlier stage. The law states that for reclassification before the attainment date of an area, “the Administrator shall reclassify appropriate areas within 18 months after the required date for the State’s submission of a SIP for the Moderate Area.” Cort contested “EPA's claim that they can re-classify at any time,” but in response to assertions from Lynk that the issue is not properly before the court in the present case, conceded that, “maybe that fight is still to come” if environmentalists challenge actual reclassification decisions in the future.
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EPA Spars With CWA Rule Opponents On Push To Stay District Court Suits
Nov 6, 2015 | InsideEPA
By Bridget DiCosmo
EPA is sparring with opponents of the agency's Clean Water Act (CWA) jurisdiction rule over the administration's push for federal district courts to stay myriad lawsuits over the regulation until an appellate court decided whether it can hear a challenge to the rule, as critics of the rule are saying there is no legal basis for delaying the suits.
The fight is just the latest in an ongoing complicated series of filings at the federal district and appellate court levels in challenges to the rule, which EPA crafted jointly with the Army Corps of Engineers. At least 11 district court cases are pending after a Mutli-District Litigation (MDL) panel refused the administration's request to consolidate them. While judges have stayed a handful of the cases, several of the district court cases are currently proceeding.
But the U.S. Court of Appeals for the 6th Circuit is yet to decide whether it, rather than the district courts, has authority to hear appellate suits over the rule that have been consolidated in that court. The 6th Circuit will hear oral argument in that case Dec. 8, and his issued a nationwide stay of the rule pending a decision.
And the 11th Circuit is weighing an appeal of a stay issued by the U.S. District Court for the Southern District of Georgia in a suit filed in that court over the rule. The end result could be a mass of confusing rulings, because if the 6th Circuit sends the cases back to district court and lifts its stay, then 11 states might be covered by a federal district court judge's stay of the rule while states not part of that suit might suddenly have to comply with the rule.
In a Nov. 2 filing in one district court challenge to the rule, Justice Department (DOJ) attorneys argue on behalf of EPA and the Corps that the lower courts should stay all their suits pending a 6th Circuit ruling.
“This course of action is in the interest of judicial economy and efficiency, will not harm Plaintiffs, and would prevent potential hardship to the Federal Agencies,” DOJ attorneys write in asking for a stay of the U.S. District Court for the Southern District of Texas, Galveston Division, suit in State of Texas, et al. v. EPA, et al. DOJ argues the 6th Circuit is likely to rule that it has the authority to hear initial challenges to the CWA rule.
The DOJ attorneys write, “There can be no dispute that the Sixth Circuit's forthcoming ruling on the issue of whether jurisdiction to review the Clean Water Rule lies exclusively in the courts of appeals under [section 509] will directly bear on whether this Court has subject matter jurisdiction in this case.”
Industry and state plaintiffs, however, counter in a Nov. 2 motion that even though the 6th Circuit has issued its nationwide injunction blocking implementation of the rule, the district court should proceed so they could ensure injunctive relief from the lower court in the event the appellate court lifts its stay.
The plaintiffs argue in the U.S. District Court for the Northern District of Oklahoma suit, State of Oklahoma v. EPA, that the court has not yet considered the plaintiffs' earlier motion for preliminary injunction. Therefore, the plaintiffs argue that if the 6th Circuit were to lift the injunction, then, “There would thus be a gap between the dissolution of the Sixth Circuit’s stay and any injunctive relief this Court could provide.”
Injunction Motion
Similarly, in a suit pending in the U.S. District Court for the Southern District of Ohio Eastern Division, State of Ohio v. EPA, et al., several states argue in a Nov. 3 filing that if the 6th Circuit finds it lacks jurisdiction, its injunction would be set aside. “The States therefore submit this preliminary injunction motion now to allow full briefing on a regular schedule here so that this Court may rule as appropriate when the Sixth Circuit determines that this case does not fall within the narrow category of Clean Water Act cases specified for review by Circuit petition.”
In a similar vein, the 11 states appealing to the 11th Circuit the stay issued by the U.S. District Court for the Southern District of Georgia warned Oct. 13 in a letter to the appeals court that if it does not rule before the judges hearing the consolidated suits, then the 6th Circuit's stay could evaporate without the states having an opportunity to ask Wood for a new order blocking implementation of the CWA rule. This is because the 11th Circuit oversees Georgia, so only it or the Supreme Court can order Wood to resume proceedings there.
The 11 states participating in the State of Georgia suit are Georgia, Florida, West Virginia, Alabama, Indiana, North Carolina, Kansas, South Carolina, Kentucky, Utah and Wisconsin.
Confusion over which courts will be in position to issue stays at what time is only one of the complications resulting from the parallel suits over the CWA rule. Section 509 of the CWA says that only challenges to specific types of rules must be initiated at the appellate level, while others should be brought to district court, but it is unclear which category a rule governing the reach of the act falls under -- hence the complicated litigation.
Critics of the rule favor review in the district courts, where a host of separate challenges are pending, while EPA and the Corps, have backed review in the appellate courts. They also unsuccessfully sought an order that would have consolidated all the pending district suits before a single judge. DOJ on EPA's behalf in a Nov. 4 notice of supplemental authority filed with the 11th Circuit says the MDL panel's decision “centralized and streamlined review” of the rule in the 6th Circuit. “If review instead proceeds in the many district courts where challenges are pending, there is a risk of both inconsistent decisions and multiple appeals that delay the ultimate resolution of the judicial challenges to the Rule’s validity,” the notice says.
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