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ACC AM Nov 10
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(ACC Mentioned) Chinese Plastics Associations Join Effort To Reduce Marine Debris
Nov 10, 2015 | Packaging World
By Anne Marie Mohan
Three associations representing China’s plastics industry have become the latest signatories to the industry’s Global Declaration for Solutions on Marine Litter, a commitment to help find and implement solutions for keeping plastics out of the ocean. The China Petroleum and Chemical Industry Federation (CPCIF)... -
(ACC Mentioned) Unexpectedly, US PVC Looks For A Bottom
Nov 9, 2015 | ICIS News
By Bill Bowen
The US polyvinyl chloride (PVC) market wasn’t supposed to be here. Last week, October contract prices fully settled, down 1 cent/lb and the third straight month of declines, bringing to five the number of months in 2015 that prices dropped, compared with one month that saw increases. -
(ACC Mentioned) US Sales of Plastic Resins Up 3pc YTD: ACC
Nov 9, 2015 | Argus
The US produced 6.4bn lb of major plastic resins in September, up 0.5pc from last year, according to the latest statistics from the American Chemistry Council. Overall production so far this year stands at 58.8bn lb, up 3pc year... -
How Industry Twists Science To Downplay The Dangers Of Toxic Chemicals
Nov 9, 2015 | Environmental Working Group
By Bill Walker
The most egregious flaw of the United States’ toothless and outdated system of regulating chemicals is the failure to adequately and independently test chemicals for safety. Because of the Environmental Protection Agency’s woeful shortage of resources, manufacturers submit their own data to vouch for new chemicals, and most studies... -
(ACC Mentioned) PHMSA Denies Crude-by-Rail Rule Hazmat Petitions
Nov 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The nation's hazardous materials transportation regulator has denied several administrative petitions from railroads, fuel and chemical manufacturers, tribes and others seeking changes in its crude-by-rail rule. These groups, including the American Chemistry Council and others, urged the Pipeline and Hazardous... -
(ACC Mentioned) PHMSA Rejects Tank Car Rule Appeals
Nov 9, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
PHMSA has rejected appeals of its tank car safety rule that were filed by several groups spanning railroads, shippers and energy interests. In a response published today, PHMSA denied appeals filed by the Dangerous Goods Advisory Council, American Chemistry Council, Association of American Railroads... -
Feds Reject Industry Challenges To Oil Train Safety Rule
Nov 9, 2015 | McClatchy DC
By Curtis Tate
The U.S. Department of Transportation has rejected several appeals by industry groups to its rule issued in May on the safety of trains carrying large quantities of crude oil and ethanol. The department also agreed with tribal groups in the Pacific Northwest that had expressed concern about proposed changes to notification requirements to states ... -
Industry Doubles Down On Push To Delay Pipeline Safety Changes
Nov 10, 2015 | E&E Daily News
By Hannah Northey
A top natural gas industry group is attempting to amplify its argument on Capitol Hill that it's too early to change federal law governing pipeline safety when upgrades are underway. The American Gas Foundation published a report that found laws passed in 2006 and 2011 are still "maturing" and that pipeline upgrades are in the works. -
Keystone's Dead. Here's What's Next on the Enviros’ Hit List
Nov 9, 2015 | Bloomberg
By Eric Roston
Barack Obama belittled the Keystone XL pipeline debate even as he brought it to a close. The project, which would have delivered heavy, oil-sands crude from Western Canada to the Gulf Coast, "has occupied what I, frankly, consider an overinflated role in our political discourse," he said Friday. "It became a symbol too often used as a campaign... -
Hill Supporters Ponder Limited Options, New Reality
Nov 10, 2015 | E&E Daily News
By Manuel Quiñones and Geof Koss
Republican lawmakers say TransCanada Corp. remains set on building the Keystone XL oil pipeline from Alberta -- and they remain committed to helping the company achieve its goal. On Friday, after seven years of deliberations, Secretary of State John Kerry and President Obama decided to deny TransCanada permission to cross... -
Environmental Groups, BP Oppose FERC Approval of LNG Plant
Nov 10, 2015 | BNA Daily Environment Report
By Rebecca Kern
Environmental groups and BP Energy Co. opposed the Federal Energy Regulatory Commission's decision to approve Dominion Virginia Power's Cove Point liquefied natural gas export terminal in Maryland in a set of briefs filed in a case against FERC (EarthReports Inc. v. FERC, D.C. Cir., No. 15-1127, brief filed 11/6/15). -
Hoeven Lobbying for Oil Export Provision in Highway Bill
Nov 10, 2015 | BNA Daily Environment Report
By Ari Natter
Sen. John Hoeven (R-N.D.) isn't giving up on trying to attach legislation to end the ban on most crude oil exports to the highway bill, even though the measure was left out of transportation legislation passed by both chambers. In an interview, Hoeven said he plans to lobby conferees that will be assigned to reconcile the differences between... -
Clean Power Plan Divides Governors, Attorneys General
Nov 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
Three days after Colorado Attorney General Cynthia Coffman (R) filed suit on behalf of the state challenging the Environmental Protection Agency's Clean Power Plan, Colorado Gov. John Hickenlooper (D) announced he was going to try and stop her. “Attorney General Coffman has filed an unprecedented number of lawsuits... -
McCarthy Defends Clean Power Plan Costs, Benefits
Nov 10, 2015 | BNA Daily Environment Report
By Andrew Childers
Environmental Protection Agency Administrator Gina McCarthy defended the economic and health benefits of the Clean Power Plan even as a new industry-funded analysis suggests the carbon dioxide standards will cost utilities far more than predicted by the agency. The plan will translate into “major health benefits as well as cost... -
McConnell Boasts 'Just Say No' Forced EPA Adjustments
Nov 10, 2015 | E&E Daily News
By Amanda Reilly
Senate Majority Leader Mitch McConnell (R-Ky.) is reiterating his opposition to the Obama administration's efforts to reduce carbon dioxide emissions from power plants as questions arise over whether his "just say no" strategy is crumbling. In an opinion piece sent to media outlets yesterday, the senator highlighted the letters he wrote... -
Obama Administration On Full Throttle For Climate Talks
Nov 9, 2015 | PoliticoPro
By Andrew Restuccia
Top Obama administration officials are working furiously behind the scenes as the Paris climate change summit approaches to keep the momentum for a global deal on track, plot an aggressive communications plan and gird against attacks from Republicans. The White House has set up an internal war room... -
FERC Asked to Reevaluate 1978 Energy Law, Policies
Nov 10, 2015 | BNA Daily Environment Report
By Brian Eckhouse
Three Republican lawmakers asked the U.S. Federal Energy Regulatory Commission to reevaluate a landmark 1978 law that helped promote wider use of energy efficiency and renewable energy. Sen. Lisa Murkowski (R-Alaska) and Reps. Fred Upton (R-Mich.) and Ed Whitfield (R-Ky.), who all lead energy ... -
Clinton Vows to Make Climate Change ‘Huge' Priority
Nov 10, 2015 | BNA Daily Environment Report
By Anthony Adragna
Democratic presidential frontrunner Hillary Clinton said Nov. 9 she would continue and expand on President Barack Obama's climate change initiatives as some of her first acts in office. Clinton, speaking in Nashua, N.H., said she would look at renewing executive actions on climate change, pursue legislation to address the problem and set... -
EPA Eyes April 2020 For Final NOx-SOx NAAQS Decision
Nov 9, 2015 | InsideEPA
EPA is planning to release in April 2020 a final decision on whether to launch a first-time joint “secondary” national ambient air quality standard (NAAQS) to reduce environmental harms from nitrogen oxides (NOx) and sulfur oxides (SOx), a standard that some scientists have cautioned might be too difficult to implement. -
60 Groups Press Lawmakers 'To Mitigate' New Ozone Rule
Nov 10, 2015 | E&E Daily News
By Sean Reilly
Dozens of business groups are pressing Congress to quickly block U.S. EPA's new ozone standard from taking effect, warning in a letter that close to one-third of the nation's counties could fail to meet the lower ambient air quality threshold of 70 parts per billion. Without immediate action, the new rule "will negatively...
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(ACC Mentioned) Chinese Plastics Associations Join Effort To Reduce Marine Debris
Nov 10, 2015 | Packaging World
By Anne Marie Mohan
Three associations representing China’s plastics industry have become the latest signatories to the industry’s Global Declaration for Solutions on Marine Litter, a commitment to help find and implement solutions for keeping plastics out of the ocean.
The China Petroleum and Chemical Industry Federation (CPCIF), the China Synthetic Resin Marketing Association, and the China Plastics Processing Industry Association (CPPIA) have officially signed on to the global declaration under which plastic industry leaders commit to contribute to scientific research, knowledge sharing, and partnerships to develop post-use solutions that treat plastics as resources and keep them out of the marine environment.
“Plastics are essential to achieving a sustainable society, because they reduce waste, energy use, and greenhouse gas emissions, all while improving the quality of modern life,” says CPCIF Chairman Li Shousheng. “We must continue working together to find post-use solutions that take advantage of these valuable materials so they don’t become litter or create ‘white pollution.’”
“We welcome and commend China’s plastics industry for joining global efforts to address marine debris,” says Steve Russell, Vice President of Plastics for the American Chemistry Council. “Marine debris is a complex, global problem, and China’s participation is a strong signal that this industry is committed to doing our part in providing solutions.”
To date more than 60 associations in 34 countries have signed the plastics industry’s global declaration, through which 185 projects have been planned, initiated, or completed since its launch in March 2011. These associations report on their progress annually.
Earlier this year, CPPIA became a partner in the plastics industry’s Operation Clean Sweep® program, an effort designed to help companies that handle plastics raw materials properly contain these resources and prevent them from entering the marine environment.
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(ACC Mentioned) Unexpectedly, US PVC Looks For A Bottom
Nov 9, 2015 | ICIS News
By Bill Bowen
The US polyvinyl chloride (PVC) market wasn’t supposed to be here.
Last week, October contract prices fully settled, down 1 cent/lb and the third straight month of declines, bringing to five the number of months in 2015 that prices dropped, compared with one month that saw increases.
The latest result was to put contract prices down by 6 cents/lb from where they had started 2015.
US spot export PVC prices lowered to $620/tonne on the low end of the ICIS-assessed range, the lowest level since May of 2009, or 78 months.
That has come about via low costs for ethylene feedstock and a global economic picture that some liken to water swirling around a drain.
“The whole market is spiraling down,” said a PVC trader who works in most global markets. “There are no bright spots that I can see.”
The US PVC market started the year with bright hopes that the construction recovery that has been postponed year after year since the Great Recession would come barreling back with some resemblance to its pre-recession vigor.
And while construction activity has improved this year, it has mostly been in multi-family housing projects that consume less than about one-third per unit of the wire, pipe and PVC architectural features that a single family home demands.
“Demand just isn’t there,” the trader added.
A 3 cents/lb ($66/tonne) increase in March hit them hard after they were unable to pass the cost along to their customers.
Domestic demand started the year suppressed by poor weather. As sales rebounded slowly through the spring, peak construction season never caught fire. Soon after equities markets collapsed in China in August, US total sales, including captive use, was down 2.5% for the year through September, according to figures released last month by the American Chemistry Council using data compiled by Veris Consulting.
A number of plant maintenances were expected to help rebalance the market in October.
“Well, I think everybody has it that the US market is so-so,” a buyer of PVC resin to make pipe wrote in response to an enquiry in early October. “If it was better, there would be a lot more delivery constraints with the different turnarounds (voluntary or not) that are going on.”
That material on hand was able to deliver the market through a month with at least three major plants suffering outages or planned maintenances allowed prices to descend even further.
“Their outlook for domestic demand was just way too optimistic,” said a second trader.
Additionally, US producers shipped an unusual volume of PVC to Latin America to cover for material lost in a fire at a Braskem plant in Brazil in October. US producers commanded a premium for the material provided on a prompt basis while taking their eyes off of global markets, one trader said.
When they started offering material to other markets, especially Asia and the Middle East, they had to buy back that business with aggressive price moves.
In the meantime, supply is likely to lengthen.
Early next year, Shintech is expected to begin delivering additional supply to the market when its $500m expansion to plants in Louisiana will boost its output by 300,000 tonnes/year, or about 20%.
Several market sources say that Shintech has said that much of the material has already been placed with buyers. But any addition of supply is likely to keep prices low without a boost to demand.
Market participants now say that, with December destocking nearing and end-of-year inventory taxes set be assessed in seven weeks, the likelihood that demand will rebound with any strength before the end of the year seems remote, at best.
Major US PVC producers include Axiall, Formosa Plastics, Occidental Chemical, Shintech and Westlake Chemical.
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(ACC Mentioned) US Sales of Plastic Resins Up 3pc YTD: ACC
Nov 9, 2015 | Argus
The US produced 6.4bn lb of major plastic resins in September, up 0.5pc from last year, according to the latest statistics from the American Chemistry Council.
Overall production so far this year stands at 58.8bn lb, up 3pc year to date, as producers take advantage of cheap feedstocks. September sales and captive use of resins rose 3.6pc from last year to 6.6bn lb.
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How Industry Twists Science To Downplay The Dangers Of Toxic Chemicals
Nov 9, 2015 | Environmental Working Group
By Bill Walker
The most egregious flaw of the United States’ toothless and outdated system of regulating chemicals is the failure to adequately and independently test chemicals for safety. Because of the Environmental Protection Agency’s woeful shortage of resources, manufacturers submit their own data to vouch for new chemicals, and most studies of existing chemicals are conducted by for-profit consultants selected and paid by the very companies whose products they’re evaluating.
Chemical companies should have to pay for testing their products, but they shouldn’t be able to pick and choose who does the work. Two major journalistic investigations published recently reveal how the chemical industry has hijacked the current system – not only through the findings of scientists-for-hire but by shaping the actual methods of regulatory toxicology to downplay the health risks. This double-barreled perversion of science skews regulation of notorious hazards such as formaldehyde as well as emerging threats like bisphenol A, or BPA, a hormone disrupting chemical used in food packaging and cash register receipts, and glyphosate, a carcinogen that is the active ingredient in Monsanto’s Roundup weed killer.
Reporting for The Intercept through open-records requests, Sharon Lerner obtained the studies EPA relied on when it concluded last summer that there was “no convincing evidence” that glyphosate, the most widely-used herbicide in the U.S. and worldwide, disrupts hormones. She found that “the decision was based almost entirely on pesticide industry studies”:
Only five independently funded studies were considered in the review of whether glyphosate interferes with the endocrine system. Twenty-seven out of 32 studies . . . were either conducted or funded by industry. Most of the studies were sponsored by Monsanto or an industry group called the Joint Glyphosate Task Force. One study was by Syngenta, which sells its own glyphosate-containing herbicide, Touchdown.
How did the funding affect the findings? Three of the five independent studies found that glyphosate interferes with the functioning of hormones, but not one of the 27 industry-sponsored studies concluded that glyphosate is harmful. Although data from many of the industry studies suggested harm and the rats in some studies died, in each case the researchers discounted or dismissed those findings.
That case involves twisting the interpretation of data on a specific chemical. But a six-month investigation by Valerie Brown and Elizabeth Grossman for In These Times magazine dug deeper.
They found that 30 years ago scientists working for the Defense Department, which is responsible for more than two-thirds of America’s 1,300 heavily polluted Superfund sites, began promoting the use of computer simulations to track how chemicals affect people’s bodies. This method, known as PBPK modeling, is cheaper and faster than doing tests on animals or in a test tube, but the results are only as good as the information used to set up the model:
Many biologists say PBPK-based risk assessments begin with assumptions that are too narrow, and thus often fail to fully capture how a chemical exposure can affect health . . . Because of its reliance on whatever data are included, PBPK modeling can be deliberately manipulated to produce desired outcomes.
The Pentagon wanted to minimize costly cleanups of chemicals such as perchlorate, the explosive ingredient in rocket fuel. But corporate interests also saw that computer modeling could be used, as one company memo said, to blunt “excessively conservative” regulations that could lead to “unnecessary expensive controls” and place “constraints on important industrial processes.” Results from PBPK studies by industry-funded consultants, Brown and Grossman wrote, have consistently “downplayed the risk and delayed the regulation” of formaldehyde, styrene, tricholorethylene, BPA and the pesticide chlorpyrifos, among many other hazardous chemicals.
The widespread use of computer modeling has sparked increasing tension between scientists who use it and health-effects researchers who look at the actual effects of a chemical on the body. Their escalating feud is not an esoteric academic debate but a battle for the use of sound science to inform regulations so as to protect public health – not corporate profits.
As the conflict continues, health-effects researchers are leaving their ivory towers and becoming outspoken about the way PBPK studies are being used to promote weak regulations. They believe that if Americans knew how industry manipulates science to keep dangerous chemicals on the market, citizens would demand change. Brown and Grossman noted:
Scientists typically shy away from activism, but many now believe it’s what’s needed to punch through the machinations and inertia regarding chemical regulation. . . Or, as the University of California’s Bruce Blumberg said, “I think we need to take the fight to the people.”
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(ACC Mentioned) PHMSA Denies Crude-by-Rail Rule Hazmat Petitions
Nov 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The nation's hazardous materials transportation regulator has denied several administrative petitions from railroads, fuel and chemical manufacturers, tribes and others seeking changes in its crude-by-rail rule.
These groups, including the American Chemistry Council and others, urged the Pipeline and Hazardous Materials Safety Administration to alter parts of the rule (RIN 2137-AE91) ranging from thermal protection to braking requirements. However, the federal regulator said in its response that it “reasonably determined how to apply new regulations.”
“While we understand that shippers, carriers, and tank car manufacturers for Class 3 flammable liquids will face new challenges in the wake of these regulations, we maintain that they are capable of complying with the final rule,” said PHMSA Administrator Marie Therese Dominguez in the signed document.
The response, which was issued Nov. 5 and released Nov. 6, ends the administrative consideration of the rule and shifts the focus of those hoping to alter the rule to federal courts and Congress. The denial was issued before two trains carrying flammable liquids derailed in Wisconsin—one on Nov. 7 and the other on Nov. 8.
Petition Denials
The rule itself requires that large quantities of flammable liquids such as crude oil and ethanol being transported by rail be moved in stronger tank cars, with certain speed restrictions and other requirements, to limit risks of derailments.
The hazmat office declined to reconsider:
• narrowing the types of goods the rail rule applies to;
• eliminating, further defining or delaying its sampling and testing program;
• expanding reporting requirements related to retrofitting tank cars;
• adding thermal protection requirements for tank cars;
• adding information sharing procedures;
• altering brake requirements; or
• reassessing tribal impacts of the rule.
The American Chemistry Council, American Fuel & Petrochemical Manufacturers, Association of American Railroads and Dangerous Goods Advisory Council each expressed in e-mails to Bloomberg BNA disappointment in PHMSA's decision.
The fuel manufacturers and the goods council said separately they were evaluating the agency's decision but didn't identify more specific next steps. The fuel manufacturers' group did say it hopes Congress will resolve its concern—namely that PHMSA expand its reporting requirements for retrofitting tank cars.
Columbia River Treaty Tribes didn't respond to Bloomberg BNA's e-mail requesting comment.
Court, Congress Shift
Several groups, including some that filed administrative petitions, are a part of ongoing litigation in the U.S. Court of Appeals for the D.C. Circuit (152 DEN A-15, 8/7/15).
Others have gone to Congress to get the rule changed, with some efforts focused on the upcoming multiyear reauthorization of hazardous materials and other surface transportation programs. The House and Senate are preparing to conference on their bills (204 DEN A-20, 10/22/15).
But even as efforts to identify the appropriate policy solution continue, more flammable liquid train derailments are occurring, highlighting what many consider an urgent safety issue.
On Nov. 7, 25 train cars derailed from a BNSF Railway train near Alma, Wis. Nine of those cars ended up at least partially into the Mississippi River, and five of those leaked ethanol into the river totaling up to 20,000 gallons, BNSF told Bloomberg BNA. The railroad said it hasn't identified any environmental impacts from the spill so far.
On Nov. 8, 13 tank cars carrying Bakken crude oil derailed from a Canadian Pacific Railway train near Watertown, Wis. One of those tank cars leaked up to 500 gallons of crude oil, and as of midday Nov. 9, more than 30 families were still evacuated, Canadian Pacific told Bloomberg BNA. Environmental impacts are being monitored, and no air monitoring readings have identified unsafe conditions, the railway said.
The Federal Railroad Administration is investigating both incidents, a Transportation Department spokesman told Bloomberg BNA.
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(ACC Mentioned) PHMSA Rejects Tank Car Rule Appeals
Nov 9, 2015 | PoliticoPro - Whiteboard
By Kathryn A. Wolfe
PHMSA has rejected appeals of its tank car safety rule that were filed by several groups spanning railroads, shippers and energy interests.
In a response published today, PHMSA denied appeals filed by the Dangerous Goods Advisory Council, American Chemistry Council, Association of American Railroads, American Fuel & Petrochemical Manufacturers, and jointly the Umatilla, Yakama, Warm Springs, and two Nez Perce tribes as well as the Quinault Indian Nation.
The various groups had sought appeals on the basis of the scope of PHMSA's rulemaking, impacts to tribal communities, the timeline required for retrofitting certain tank cars, reporting requirements, thermal protection, braking mandates, and those related to the Bakken oil sampling and testing program. PHMSA also denied a request to delay the date of compliance to March 31, 2016 for some requirements.
"We conclude we reasonably determined how to apply new regulations and provided the regulatory analysis to support those decisions. While we understand that shippers, carriers, and tank car manufacturers for Class 3 flammable liquids will face new challenges in the wake of these regulations, we maintain that they are capable of complying with the final rule," the notice reads.
In a statement, AAR restated much of its arguments and said it is "disappointed" in PHMSA's ruling.
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Feds Reject Industry Challenges To Oil Train Safety Rule
Nov 9, 2015 | McClatchy DC
By Curtis Tate
The U.S. Department of Transportation has rejected several appeals by industry groups to its rule issued in May on the safety of trains carrying large quantities of crude oil and ethanol.
The department also agreed with tribal groups in the Pacific Northwest that had expressed concern about proposed changes to notification requirements to states for large rail shipments of crude oil.
The trade groups, which represented railroads, refiners, and chemical companies, had objected to a variety of components of the rule relating to its scope, to the timeline for completing a retrofit and replacement of tank cars used to carry flammable liquids, what level of fire protection the cars should have and whether they should be equipped with advanced electronic brakes.
The department rejected all of those appeals, as well as one by the Columbia River Treaty Tribes and the Northwest Treaty Tribes, which had argued that the department had not formally consulted with tribal groups on the rule and it should reopen a notice and comment period for them to participate.
However, the Federal Railroad Administration and the Pipeline and Hazardous Materials Safety Administration did agree with the tribes on one issue: the rule’s effective abandonment of a requirement that railroads hauling large quantities of crude oil notify state emergency officials.
After the final rule was published in May, the department received feedback from tribal authorities and others expressing “intense concern” about the decision to withdraw a May 2014 emergency order requiring the notification of shipments of 1 million gallons or more of Bakken crude.
Based on that feedback, the department in late May issued a notice that it would continue the notification requirement indefinitely and proposed making it permanent. In July, the Federal Railroad Administration warned railroads that the emergency order remained in effect and they must continue to comply with it.
In its response Monday, the department said its actions had satisfied the tribes’ concern.
“In accordance with the notice, PHMSA continues to consider options for codifying the central aspects of the order permanently in a future rulemaking action,” it wrote. “The treaty tribes will have the opportunity to comment on these future regulatory proposals in the course of that rulemaking proceeding.”
Railroad industry groups opposed the notification requirement because numerous states released the oil train reports to the public under their open records laws. McClatchy sought such records from 30 states last year and received partial or complete responses from all but about half a dozen.
The railroads insisted that the information contained in the reports, including the routes of the trains and their approximate weekly frequencies was both business and security sensitive.
While a few states agreed, most did not. The railroads lost bids in Pennsylvania, Texas and Maryland to prevent those states from releasing the oil train reports to McClatchy and other news organizations.
There have been 10 derailments since the beginning of this year in North America where crude oil or ethanol was spilled, including two over the weekend in Wisconsin.
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Industry Doubles Down On Push To Delay Pipeline Safety Changes
Nov 10, 2015 | E&E Daily News
By Hannah Northey
A top natural gas industry group is attempting to amplify its argument on Capitol Hill that it's too early to change federal law governing pipeline safety when upgrades are underway.
The American Gas Foundation published a report that found laws passed in 2006 and 2011 are still "maturing" and that pipeline upgrades are in the works.
"While more time is certainly needed to fully assess the cumulative impact of these changes, observations to date indicate that these new approaches are making meaningful contributions to pipeline safety and reliability," the foundation wrote in the study that Van Ness Feldman prepared for the group. "The rate of gas pipeline incidents involving third-party excavation damage has also declined significantly in recent years."
Terry McCallister, chairman of the American Gas Association, made similar arguments before the Senate Commerce, Science and Transportation Subcommittee in September. McCallister said many of the programs are in early stages and Congress should allow more time (E&E Daily, Sept. 29).
"Progress is being made and we believe it would be premature to make changes to the law at this time," McCallister wrote in prepared testimony.
The full Senate Commerce panel is considering crafting a pipeline safety bill. The Pipeline and Hazardous Materials Safety Administration has been blasted for failing to enact congressionally mandated pipeline safeguards, including spill notifications and the use of automatic and remote-control shut-off valves. The agency has responded by stepping up its pace in implementing the law and beefing up its staffing.
Other groups like the Interstate Natural Gas Association of America, however, have called for congressional action.
Don Santa, INGAA's president and CEO, called on Congress in prepared remarks in September to pass a pipeline safety reauthorization bill soon and provide additional clarity to guide PHMSA on incomplete gas pipeline rules stemming from a 2011 law.
"Given how long it has taken to send these proposed rules to [the Office of Management and Budget] for review, and the record of delay in other rulemakings across the executive branch, we have good reason to be apprehensive that it may take several more years to finalize these pipeline safety rules," Santa wrote.
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Keystone's Dead. Here's What's Next on the Enviros’ Hit List
Nov 9, 2015 | Bloomberg
By Eric Roston
Barack Obama belittled the Keystone XL pipeline debate even as he brought it to a close. The project, which would have delivered heavy, oil-sands crude from Western Canada to the Gulf Coast, "has occupied what I, frankly, consider an overinflated role in our political discourse," he said Friday. "It became a symbol too often used as a campaign cudgel by both parties rather than a serious policy matter."
Mr. President, the cudgelers are just getting started.
The environmental movement is on the march again, perhaps more so than at any time since concerns about acid rain led Congress to pass the Clean Air Act Amendments of 1990. As political symbols go, Keystone XL was a potent one. It hung over the White House for several years and sparked all-around congressional fury. And, as a bonus for the greens, it came amid an environmentalist feeding frenzy over news that New York Attorney General Eric Schneiderman had started to investigate what ExxonMobil knew about climate change and when it knew it.
So, what now? Author and activist Bill McKibben, the rejuvenated movement's most ardent spokesman, offered a sneak peek at the next targets that his group, 350.org, and like-minded environmental organizations will pursue. Other pipelines
McKibben said there are dozens of pipelines in the U.S. and abroad that together would keep the economy burning carbon for decades. Enbridge's Northern Gateway pipeline, which would carry 525,000 barrels of oil a day from Alberta, Canada, to the Pacific, is already facing a changing political climate. Fossil-fuel leases
When he's not campaigning to be president, Bernie Sanders still represents Vermont in the Senate. Senators Jeff Merkley (D-Oregon), Patrick Leahy (D-Vermont), and Sanders last week introduced a bill that would strike this item from environmentalists' to-do list. It's not immediately clear how much the Keep It in the Ground Act would cost the U.S. government in forgone revenue on new projects. Overall, the Interior Department's Office of Natural Resources Revenue brings in more than $13 billion in energy and mineral leases. Coal mines
Global coal use in 2015 is expected to drop more than in any year before; it's already fallen as much as 4.6 percent through September. That doesn't mean it's going to disappear, and some countries are hungrier for coal than ever. That's why India's Adani Enterprises is putting $5 billion into Australian coal. Its Carmichael mine and rail project is already in the works, and under protest, in Queensland, Australia. Fracking
Shale oil and gas companies in the U.S. continue to produce, despite low energy prices, but they're staring at federal rules on hydraulic fracturing expected within the next couple of years. Environmentalists are particularly concerned about drought-stricken California, where the industry is demanding more water when there's less to go around. Obstacles to solar power
With solar module costs down by two-thirds since 2010, "soft costs" loom larger than ever in the U.S. These include legal and other professional services that help project developers comply with local rules. At home, that means changing laws from the local to the federal level. Abroad, countries like India need massive amounts of public and private financing to keep the temptation of fossil fuels at bay. Developing nations will look to the U.S. for financing and investment, and the environmentalists may advocate on their behalf. Fossil-fuel exports
The U.S. bans most crude-oil exports. And economics is on the greens' side when it comes to building ports that can ship coal. If they're serious about stopping the trade of all fossil fuels, then they're also up against the U.S. natural gas juggernaut and its new liquefaction and export facilities.Fossil-fuel subsidies
Climate activists are likely to advocate for a wide interpretation of what qualifies. Shipping oil by rail
High-profile conflagrations have drawn attention to transport safety.
With all these targets to choose from, environmental activists had best remember the Keystone campaign's simplest lesson: Focus on one thing. With a name the kids can remember.
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Hill Supporters Ponder Limited Options, New Reality
Nov 10, 2015 | E&E Daily News
By Manuel Quiñones and Geof Koss
Republican lawmakers say TransCanada Corp. remains set on building the Keystone XL oil pipeline from Alberta -- and they remain committed to helping the company achieve its goal.
On Friday, after seven years of deliberations, Secretary of State John Kerry and President Obama decided to deny TransCanada permission to cross the international border.
Now pro-KXL lawmakers are mulling their limited options. One of them could involve threatening to shut down the government over the project. But the most popular option seems to be waiting.
"I can't say specifically what is going to work or what isn't going to work, but there's going to be a huge effort," Sen. James Inhofe (R-Okla.) told E&E Daily last night.
Sen. John Hoeven (R-N.D.), one of TransCanada's top defenders on Capitol Hill, said, "They're going to continue the effort, and as soon as Congress can move it, that's what they want.
Congress could easily pass stand-alone legislation to approve KXL, just as it did earlier this year. The problem is getting a veto-proof majority. Supporters would need four more votes in the Senate and roughly 20 more in the House.
"Obviously it's tough getting two-thirds," Hoeven said. "We're at 63, but everybody's pretty well settled in, so it's hard to move anybody. So really it comes down to attaching it to something, or we're looking at the next administration."
Inhofe has expressed skepticism about attaching KXL to the pending transportation reauthorization. Trying to push the issue in the spending bill to keep the government funded past Dec. 11 could put lawmakers on a collision course with the White House, raising the specter of a shutdown.
Obama touted his decision during remarks last night: "America is leading the world towards dealing with climate change in a serious way. Approving that project would have undercut our global leadership. And we've got to lead by example."
Sen. Heidi Heitkamp (D-N.D.), a pipeline supporter, said she plans to talk to some of the Democrats fence-sitters "and see if they are willing to turn their minds at this point."
Inhofe predicted that Democrats may be willing to support Keystone XL legislation as it gets closer to next year's elections.
"Clearly this is something the American people want," he said.
Hoeven, too, predicted that KXL will be a recurring issue as the November 2016 elections get closer. "You want to talk about a bread-and-butter issue, jobs and national security," he said.
Sen. Angus King (I-Maine), one pro-KXL target, said last night that he would have to consider the specifics of any legislation favoring the pipeline but is "inclined" against moving from the "no" to "yes" column on approval through legislation.
Asked whether the president's decision to reject KXL would persuade more Democrats to intervene in the project's favor, Sen. Joe Manchin (D-W.Va.), another supporter, replied, "I haven't heard that."
Manchin added, "With the president doing what he did, it makes it more challenging. We knew that." He floated the possibility of waiting "till 2017."
Sen. John Thune (R-S.D.) said, "We'll do everything we can if somebody can figure out a way to advance this project, but I hope a new administration will look at it differently." GOP writes Canada
Several Republican lawmakers -- including Reps. Brian Babin of Texas and John Fleming of Louisiana -- are collecting signatures on a draft letter to Canadian leaders urging them not to give up on KXL.
"We wish to reiterate that these actions taken by the current administration do not reflect the overwhelming, bipartisan consensus on this issue within the United States Congress," says the draft letter.
The missive encourages Canadian leaders against pushing for an alternative to KXL and instead advises them to wait for the result of next year's U.S. elections.
"Simply put, if the American People choose a president who supports building Keystone XL, that president can reverse this misguided decision and authorize the project the day he or she takes office," the letter says.
Senior administration officials said last week that TransCanada would have to reapply for permission to build KXL if Obama's decision stands.
The top three Democratic candidates for president are all opposed to KXL. The front-runner, former Secretary of State Hillary Clinton, who was endorsed yesterday by the League of Conservation Voters Action Fund, expressed pride in Obama's rejection.
But even if one of the Democrats wins, the configuration on Capitol Hill may be sufficiently different to quash a presidential veto of pro-KXL legislation -- something highly unlikely to happen now. Taking aim at permitting
Beyond the discussion about KXL, lawmakers like Hoeven and Heitkamp want to dust off legislation to reform the permitting process for transboundary projects.
"I have kind of turned my attention to how we can fix the process, which is horribly broken," she told E&E Daily. "This clearly was a political decision, there was no doubt about it. In fact, they admitted it in their discussion."
Hoeven said Obama's decision may rekindle interest in bipartisan legislation (S. 1228) he introduced with Sen. Joe Donnelly (D-Ind.) this year.
The bill would "streamline and takes the politics out" of the process, including by imposing a 120-day deadline on the State Department to make a final decision after reviewing the environmental impacts of a project.
"I think it will get it some momentum," Hoeven said.
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Environmental Groups, BP Oppose FERC Approval of LNG Plant
Nov 10, 2015 | BNA Daily Environment Report
By Rebecca Kern
Environmental groups and BP Energy Co. opposed the Federal Energy Regulatory Commission's decision to approve Dominion Virginia Power's Cove Point liquefied natural gas export terminal in Maryland in a set of briefs filed in a case against FERC (EarthReports Inc. v. FERC, D.C. Cir., No. 15-1127, brief filed 11/6/15).
The environmental groups argued the terminal should be stopped because it would add a significant amount of greenhouse gas emissions to the atmosphere.
The Chesapeake Climate Action Network, the Sierra Club and EarthReports Inc. filed a joint brief Nov. 6 in the U.S. Court of Appeals for District of Columbia Circuit against FERC and Dominion.
The D.C. Circuit rejected the group's motion in June to stop Dominion from constructing the Cove Point LNG terminal (115 DEN A-20, 6/16/15).
In addition, BP Energy filed a brief Nov. 6 claiming that FERC's decision to approve the Dominion project misreads the Natural Gas Act, and that Dominion discriminated against BP Energy.
BP said it should receive the same privileges that another customer, Statoil Natural Gas LLC, received.
The two cases against FERC were consolidated in the D.C. Circuit court.
Environmental Concerns
The environmental groups said in their brief that FERC failed to take a “hard look at the significant environmental consequences” of allowing Dominion to construct its LNG export facility in Calvert County, Md. The facility would be capable of exporting nearly 1 billion cubic feet of LNG per day for 20 years.
The groups filed a lawsuit against FERC in May asking for a stay on the construction of the facility in response to FERC's denial of the groups' request for a rehearing (106 DEN A-15, 6/3/15).
In their brief, the groups said FERC arbitrarily refused to calculate significant greenhouse gas emissions from the LNG export facility in violation of the National Environmental Policy Act. The groups said emissions from the facility would surpass those of Maryland's seven coal-fired power plants.
They said because FERC didn't use any social cost of carbon tools or any other tools to assess the project's climate change impacts, it therefore “failed to disclose significant harms warranting a preparation of an [environmental impact statement.]”
Discrimination Alleged Against BP
Meanwhile, BP Energy claims that FERC's approval decision misinterprets the Natural Gas Act, which it says prevents natural gas facilities from unduly discriminating against customers.
BP said in its brief that by offering Statoil an opportunity to relinquish or “turn back” unwanted services without offering the same opportunity to BP, Dominion unduly discriminated against BP as a customer. BP also said Dominion offered this deal to Statoil because it already was working with it on other projects.
The date for oral arguments has not yet been set. The brief from FERC, the respondent, is due Jan. 5.
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Hoeven Lobbying for Oil Export Provision in Highway Bill
Nov 10, 2015 | BNA Daily Environment Report
By Ari Natter
Sen. John Hoeven (R-N.D.) isn't giving up on trying to attach legislation to end the ban on most crude oil exports to the highway bill, even though the measure was left out of transportation legislation passed by both chambers.
In an interview, Hoeven said he plans to lobby conferees that will be assigned to reconcile the differences between the House (H.R. 3763) and Senate (H.R. 22) bills to include language to end the trade prohibition.
The move “makes a lot of sense,” Hoeven told Bloomberg BNA, because one of the funding sources of the $325 billion bill is a sale of oil from the Strategic Petroleum Reserve, and ending the 1975 ban on oil exports could result in increased domestic oil production, according to an Energy Information Administration analysis.
“I think we have a good chance to do it,” Hoeven said, adding that he is already talking about the idea to members of Senate leadership and other lawmakers. Senate conferees for the highway bill could be named as soon as Nov. 10, Don Canton, a spokesman for Hoeven, told Bloomberg BNA.
‘Long Odds.'
Ending the ban, a priority for companies such as Exxon Mobil, ConocoPhillips and other oil producers, was not included in the House's six-year transportation reauthorization bill (H.R. 3763), which was approved Nov. 5. The House Rules Committee didn't allow such amendments to be considered during debate.
Attaching legislation to lift the ban to the House highway bill, which has wide support, could have allowed vulnerable senators to vote indirectly for the issue if the measure survived a House-Senate conference committee to iron out differences in the two chambers' bills. Including it in a broader bill also could lead President Barack Obama to rethink his veto threat of standalone legislation (H.R. 702) to end the trade prohibition, proponents said.
But Hoeven's bid to include it in the conference report faces “long odds,” Jim Manley, a former senior aide to Senate Minority Leader Harry Reid (D-Nev.), told Bloomberg BNA.
“If the administration continues to oppose [ending the ban], how [can] something like this work its way into the final conference committee report?” said Manley.
The House approved H.R. 702 to lift the ban in October on a 261-159 vote, but the Senate is unlikely to approve such a measure in this Congress, analysts have said (197 DEN A-6, 10/13/15).
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Clean Power Plan Divides Governors, Attorneys General
Nov 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
Three days after Colorado Attorney General Cynthia Coffman (R) filed suit on behalf of the state challenging the Environmental Protection Agency's Clean Power Plan, Colorado Gov. John Hickenlooper (D) announced he was going to try and stop her.
“Attorney General Coffman has filed an unprecedented number of lawsuits—without support or collaboration with the governor's office—raising serious questions about the use of state dollars and the attorney-client relationship between the governor and the attorney general,” Hickenlooper said in a Nov. 4 statement. “These lawsuits create conflicts in state-wide policy that are contrary to the best interest of the State of Colorado.”
Coffman, for her part, said she is a “separately elected constitutional officer and the State's chief legal officer,” and the state's constitution “clearly grants” her the authority to take independent legal action in the public interest.
“If, as the governor asserts, only he can determine when Colorado files or joins a lawsuit, he can prevent important legal questions from being put before our courts simply because he wishes to avoid conflict with this Administration,” Coffman said in a statement provided to Bloomberg BNA.
The Colorado dispute highlights political divides playing out in other states as they grapple with how to respond to the EPA's Clean Power Plan (RIN 2060-AR33; 80 Fed. Reg. 64,661), which sets carbon dioxide emissions limits for the power sector in each state. The standards would be implemented by state regulators, but a majority of states have already filed lawsuits to over turn the rule (West Virginia v. EPA, D.C. Cir., No. 15-1363, 10/23/15).
Though the attorneys general are bringing the lawsuits on behalf of the states, the governors and top state legal officials in Colorado and at least seven other states are divided on how to address the Clean Power Plan. In Maryland, Michigan, Iowa and North Carolina the spats have gone public.
A split in political party affiliation is not the only reason behind the disputes. In Maryland, Iowa and North Carolina, for example, the governor and attorney general are of opposite parties, but in Michigan both are Republicans with different ideas on whether to challenge the EPA's rule.
Bloomberg L.P., Bloomberg BNA's parent company, has launched an advertising campaign that targets the attorneys general of four states for their opposition to the Clean Power Plan.
Disagreements Expected
“These disagreements happen all the time, but they're usually not public like the situation in Colorado,” James E. Tierney, director of the National State Attorneys General Program at Columbia Law School, told Bloomberg BNA. “And they're supposed to happen. Rather than follow the federal approach of a politically appointed attorney general, state governments wanted to have friction between the AG and the governor.”
Attorneys general are elected by the public in 43 states and appointed by the governor in five others—Alaska, Hawaii, New Hampshire, New Jersey and Wyoming—according to the National Association of Attorneys General. In Maine, the Legislature selects the attorney general in a secret ballot, and in Tennessee, the state Supreme Court fills the post. In the District of Columbia, the mayor appoints the attorney general, NAAG said.
Legal experts disagree on whether attorneys general—even one elected by the people—can make decisions about joining a lawsuit, whether as a plaintiff or a defendant-intervenor, without the input of the governor.
“Does [Coffman] have the authority? Of course she does—end of story,” said Tierney, who served as the attorney general of Maine from 1980 until 1990. “You don't want your governor alone deciding when the state should sue and when the state should settle. Governors think they can do whatever they want.”
Balance of Power Tested
In the Colorado standoff, Coffman said she is glad “the framers of the State Constitution chose a system of government that includes a plural executive—a system in which the powers of the executive branch are diffused so they cannot be wielded by a single person. Each state-wide elected official has their own authority and the attorney general's is to uphold the law.”
Hickenlooper filed a petition Nov. 4 with the Colorado Supreme Court for an order requiring Coffman to show cause regarding her legal authority to sue the federal government without his authorization (Hickenlooper v. Coffman, Colo., No. 2015SA296 , 11/4/15).
To be resolved is whether the attorney general, as the state's top lawyer, has the independent authority to decide when and when not to sue on behalf of the state, or whether she must yield to the governor as her primary client, letting him—the highest elected official in state—decide whether to get the state involved in litigation.
Former Interior Secretary and U.S. Sen. Ken Salazar, who served as attorney general of Colorado from 1999 to 2005, said Coffman exceeded her authority when she filed suit against the EPA without consulting Hickenlooper.
“The attorney general must be the lawyer for the governor and the executive branch agencies, and as such, the Attorney General and her office provide legal guidance and support under the strict requirements of the Code of Professional Responsibility and Colorado-specific statutory authority,” Salazar, a Democrat, said in a statement provided to Bloomberg BNA.
“The only exception for the attorney general to take a position adverse to the governor is where the governor has taken a clearly unlawful position, and then only when certain traditional protocols are followed,” he said. “Here no such argument can be made against Gov. Hickenlooper's position concerning the clean power rule.”
Attorney General Opposes North Carolina Lawsuit
In North Carolina, after the Republican governor and the Democratic attorney general disagreed on the Clean Power Plan, the governor directed the state Department of Environmental Quality—in lieu of the state, per se—to join the West Virginia lawsuit against the EPA. Attorney General Roy Cooper (D) is on record as favoring the Clean Power Plan, the department noted (160 DEN A-13, 8/19/15).
In an August letter to legislative leaders, Cooper said North Carolina is “in a great position” to work with the EPA in formulating a state approach that complies with the Clean Power Plan. In the letter he expressed concern about a bill (H.B. 571) in the 2015 session of the Legislature that would have required the state secretary of environment and natural resources to file suit against the EPA.
Cooper urged lawmakers to “avoid the path of litigation,” saying the bill presents constitutional challenges. He said he also was concerned a lawsuit “will risk North Carolina's well-deserved reputation for protecting the quality of our air, recruiting businesses that produce cutting-edged technologies and offering leadership around the world on energy issues.”
The bill died in the session. The department sued the EPA anyway.
“The attorney general has … made it clear that he supports federal control of North Carolina's electric generating system,” Crystal Feldman, spokeswoman for the department, told Bloomberg BNA in a Nov. 2 e-mail. Instead of Cooper, the department's general counsel, Sam Hayes, is representing the state in the matter.
States Defend EPA
Eighteen states led by New York intend to assist the EPA in defending the Clean Power Plan. None of the states joining has a Republican attorney general, but six of them—Iowa, Illinois, Maine, Maryland, Massachusetts and New Mexico—have a Democratic attorney general and a Republican governor (214 DEN A-3, 11/5/15).
In a conference call after the petition to intervene in the litigation was filed, Iowa Attorney General Tom Miller (D) said he and the governor have disagreed on litigation “on occasion in the last few years, which is not surprising.” The two are “in different parties and have different views on the issues such as the relationship with the federal government,” Miller said.
Gov. Terry Branstad (R) “knows I feel very strongly about this,” Miller said. “His utility board that he appoints has been working very closely with us and the industry to move forward with the plan and meeting the plan's goal.” Even amid their differences, “there's respect going back and forth between the two of us as we work through these things,” he said.
New Mexico, Maryland Split
James Hallinan, spokesman for New Mexico Attorney General Hector Balderas (D), acknowledged that Balderas's decision to join in the Nov. 4 petition supporting the EPA as a defendant-intervenor represents a “different position” on the Clean Power Plan than that taken by Gov. Susana Martinez (R), who has written the Obama administration about her opposition to the rule.
However, New Mexico Environment Department Secretary Ryan Flynn has said the state is planning to comply with the rule. Balderas and Flynn “work very closely together on many issues,” Hallinan said, declining to comment on whether Balderas's filing to join with New York set off a controversy with the governor. Martinez's spokesman did not return calls from Bloomberg BNA seeking comment.
In Maryland, Gov. Larry Hogan (R) opposes the decision of Attorney General Brian E. Frosh (D) to join as a defendant-intervenor in the lawsuit against the EPA.
“With regard to this matter the attorney general is, unfortunately, not acting on behalf of the governor or the Hogan administration, which remains focused on finding balanced solutions to Maryland's environmental challenges,” Matthew Clark, spokesman for the governor, told Bloomberg BNA. “Maryland is on track to meet its targets on carbon emissions, and Environment Secretary Ben Grumbles recently joined business leaders in support of a recommendation to reduce greenhouse gas emissions 40 percent by 2030. It's not all clear how the use of state resources to defend a suit against the federal government is the best use of taxpayer dollars.”
However, unlike in Colorado, Hogan is not expected to try to block Frosh.
“I'd be surprised if he did,” Eric Schaeffer, executive director of the Environmental Integrity Project in Washington, D.C., told Bloomberg BNA. “It's Maryland,” he said. “The politics in the state would not be great for that.”
Same Party, Different Take
In Michigan the governor and the attorney general—both Republicans—have had a public disagreement on what to do about the Clean Power Plan. While Gov. Rick Snyder (R) is directing state departments to take steps to comply with the EPA plan, Attorney General Bill Schuette (R) joined the group of states opposing it.
Sara Wurfel, a spokeswoman for Snyder, told Bloomberg BNA that Schuette is pursuing the case “in his individual capacity as a representative of the state.” The governor in the meantime is “just focused on implementing it right now, and coming up with our own, Michigan-specific plan” ahead of the 2016 federal deadline, she said.
Snyder and Schuette have disagreed on litigation in the past, the most recent and most high-profile dispute being over same-sex marriage. Schuette defended a Michigan constitutional amendment banning same sex marriage while Snyder stayed on the sidelines. Schuette was also a party to Halbig v. Burwell, which challenged federal Affordable Care Act subsidies to states without their own insurance exchanges while Snyder unsuccessfully tried to create a Michigan-run exchange.
Prior to the Nov. 3 election, Kentucky was the only state to join in the suit challenging the EPA while having both a Democratic governor and a Democratic attorney general. The election of a Republican as the next governor certainly strengthens Kentucky's opposition to the EPA plan, as Gov.-elect Matt Bevin (R) has vowed not to submit a Clean Power Plan for the state in order to protest what he calls the EPA's “regulatory overreach.”
Colorado Could Test Limits of Discretion
Though it is not uncommon for governors and attorneys general to differ, the spat in Colorado has reached its highest court, where judges are being asked to determine the limits of Coffman's discretion as the state's top legal official.
Hickenlooper argues Coffman is bound by Colorado Revised Statutes 24-31-101, which states it “is the duty of the attorney general, at the request of the governor, the secretary of state, the state treasurer, the executive director of the department of revenue, or the commissioner of education, to prosecute and defend all suits relating to matters connected with their departments.”
“That means she is to prosecute and defend all causes for which the state has an interest,” Richard Collins, professor at the University of Colorado Law School in Boulder, Colo., told Bloomberg BNA. “But it doesn't really say she can hop into a case like” the Clean Power lawsuit on her own if she wants to, he said.
“The attorney general is an independent elected official who has some discretionary authority under Colorado law. No question about that,” Hickenlooper said in a statement to Bloomberg BNA. “But what is at stake here is the authority to file costly suits on the state's behalf. The law makes it clear that except in limited circumstances—which don't exist here—the attorney general is not permitted to file such lawsuits unless directed to do so by the governor.”
Coffman told Bloomberg BNA she was disappointed the governor “is taking this course.”
“The governor's action is an expression of his frustration with the legal challenges I have filed against the federal government,” she said. “I am pursuing those challenges because it is my responsibility as the independently elected attorney general to serve as a check against the abusive, unlawful exercise of federal power over the lives of Colorado's citizens.”
Differences Could Be Personal
The dispute between Hickenlooper and Coffman may be more than political—it also might be personal, Eric Sondermann, an independent Denver-based political analyst, told Bloomberg BNA. Hickenlooper had a very different working relationship with Coffman's predecessor, John Suthers, a Republican who served as attorney general from 2005-2015 and is now the mayor of Colorado Springs, Sondermann said.
“Even though Suthers and Hickenlooper were not always on the same page, there was always consultation and a sense of amicability,” he said. “They would give each other a heads-up” before taking a significant legal action, he said. “That's the piece that's missing here. There is an element of personal pique, clearly, in how Hickenlooper has reacted” to Coffman's filing suit.
Hickenlooper is in his second term as governor and is term-limited, while Coffman—who is married to Rep. Mike Coffman (R-Colo.)—is viewed as a possible Republican candidate for governor in 2018, Sondermann said.
Precedent May Favor Coffman
If Hickenlooper's battle with Coffman is ultimately decided by the Colorado Supreme Court, Coffman may get some help from a 2003 case involving Salazar, the former attorney general who now believes she is exceeding her authority (Colorado, ex rel. Salazar, Colo., 03-SA-133, 03-SA-147, 12/1/03).
In that case, which resolved litigation over legislative redistricting, the Colorado Supreme Court ruled unanimously that the attorney general has the power and the duty to sue the state to protect and promote the public interest. While the circumstances of the case are different than those of the multi-state suit over the EPA's Clean Power Plan, the decision gave new powers to the state's top lawyer that could be wielded against the governor and the state legislature, Collins said.
In the case, the prime defendant, then-Colorado Secretary of State Donetta Davidson (R), argued that Salazar serves as her attorney and therefore cannot sue her. The court disagreed, saying the attorney general does have that authority if acting in the public interest, Collins said.
However, Collins said, the question of whether the governor has the authority under Colorado law to tell the attorney general to sue or not to sue has not been decided in court. Collins said in his opinion the state statute defining the powers of the attorney general “leans in favor of the governor, but it certainly doesn't clearly answer the question.”
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McCarthy Defends Clean Power Plan Costs, Benefits
Nov 10, 2015 | BNA Daily Environment Report
By Andrew Childers
Environmental Protection Agency Administrator Gina McCarthy defended the economic and health benefits of the Clean Power Plan even as a new industry-funded analysis suggests the carbon dioxide standards will cost utilities far more than predicted by the agency.
The plan will translate into “major health benefits as well as cost savings” for families with benefits “all along” in the near-term,” McCarthy said Nov. 9 at the annual meeting of the National Association of Regulatory Utility Commissioners (NARUC) in Austin, Texas.
“It does this in ways that we are sure will keep energy reliable and affordable,” she said.
The EPA rule (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state that will be implemented by state regulators.
Twenty-seven states already have filed lawsuits to overturn the Clean Power Plan, and 18 states have intervened to defend the rule (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion to intervene 11/4/15; 214 DEN A-3, 11/5/15).
McCarthy said the EPA anticipated and is prepared for arguments against the rule, which forms the backbone of President Barack Obama's domestic efforts to address climate change.
“You don't see 4.3 million comments come in on a rule without recognizing that people are giving you hints on how they think it ought to come out,” McCarthy said.
Reductions Come at Steep Costs
In an analysis released Nov. 9, the American Coalition for Clean Coal Electricity (ACCCE) said the Clean Power Plan could drive the desired carbon dioxide emissions reductions but at a much steeper cost than the EPA estimates.
The report said annual carbon dioxide emissions could be reduced by as much as 37 percent from 2005 levels by 2031 but at an average annual cost of $29 billion to $39 billion between 2022 when the first emissions reductions are required and 2033.
The EPA anticipates its rule will reduce emissions by 32 percent from 2005 levels by 2030, and in its regulatory impact analysis released with the rule, the agency projected compliance would cost utilities $8.4 billion per year in 2030 under a rate-based scenario and $5.1 billion annually under a mass-based program.
“This analysis makes it abundantly clear the president's power plan will result in higher electricity prices and delivers a sharp wake-up call to states and consumers,” Mike Duncan, president and chief executive officer of ACCCE, said in a statement.
The analysis said retail electricity rates could increase by between 11 percent and 14 percent annually between 2022 and 2033.
“Americans do not deserve to foot the bill of this costly and burdensome mandate meant to solidify the president's legacy on climate change,” Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, said in a Nov. 9 statement on the analysis.
Texas to Evaluate Rule Impacts
Meanwhile, the Texas Legislature's speaker of the house, Joe Straus (R), has formed a committee tasked with looking at new EPA rules, including the Clean Power Plan, and how they will affect the state. One of the jobs the new committee was tasked with is to consider the implications of creating a state plan to comply with the Clean Power Plan versus the federal plan that would result from non-compliance, as well as possible legal recourse as part of the state's response, Rep. Straus's office said in a statement.
Bryan Shaw, chairman of the Texas Commission on Environmental Quality, has said the state is evaluating all of its options under the Clean Power Plan (215 DEN A-4, 11/6/15).
The Texas House Committee on Federal Environmental Regulation will examine a number of other rules as well, both proposed and finalized, including the national ambient air quality standards for ozone, a rule determining the jurisdiction of the Clean Air Act and new standards regulating methane emissions from the oil and natural gas sector, the Nov. 5 statement said.
“Many House members are concerned about the damage that these proposals could cause to our economy and about an expansion of federal power into the authority of the states,” Straus said in the statement. “The House needs to take a thorough look at how these rules will affect jobs, energy rates and future economic development in Texas.”
In addition to the economic and reliability impacts the new standards will have on the state, the committee will look at the financial implications of these standards on the Texas Emissions Reduction Plan. The chair of the committee is Rep. Geanie Morrison (R), and the vice chair is Rep. Jessica Farrar (D).
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McConnell Boasts 'Just Say No' Forced EPA Adjustments
Nov 10, 2015 | E&E Daily News
By Amanda Reilly
Senate Majority Leader Mitch McConnell (R-Ky.) is reiterating his opposition to the Obama administration's efforts to reduce carbon dioxide emissions from power plants as questions arise over whether his "just say no" strategy is crumbling.
In an opinion piece sent to media outlets yesterday, the senator highlighted the letters he wrote to governors earlier this year urging them to hold off on complying with the Clean Power Plan. He suggested that U.S. EPA adjusted its compliance schedule in the final rule because of the state campaign encouraged by his opposition.
"I'm determined to continue the fight against the Obama administration's attack on Kentucky jobs," McConnell said. "The administration's lack of compassion for those being trampled by these massively regressive regulations is shocking."
EPA's Clean Power Plan finalized in early August requires states to develop plans to reduce carbon dioxide emissions from existing power plants. EPA also issued a rule that would limit CO2 emissions from new and modified power plants.
As EPA worked to finalize the Clean Power Plan, McConnell was at the frontlines of opposition, writing newspaper columns and making public statements urging states to not comply.
He also took credit for a policy rider in the Senate's spending bill for the Interior Department and EPA that would bar EPA from putting in place a federal implementation plan for states that don't comply with the program (Greenwire, July 8).
But the "just say no" strategy appears to be losing its legs as environmental regulators and state leaders work on compliance strategies, even as 27 states have filed suit against the final Clean Power Plan (Greenwire, Oct. 28).
In the opinion piece circulated this week, McConnell touted the "just say no" strategy that he laid out in the March letter to governors.
"I wrote this letter because there is a legitimate question as to whether the administration even has the authority under federal law to issue these regulations," McConnell said.
Kentucky Gov.-elect Matt Bevin (R) has said that he will not put in place the Clean Power Plan in Kentucky as long as litigation over the rule is ongoing.
McConnell also suggested in his opinion piece that the early opposition from states convinced the Obama administration to move the program's starting date back by two years. The proposed Clean Power Plan asked states to start complying in 2020, while the final rule puts the start date at 2022; the deadline for submitting a final plan is 2018.
"This tacit admission from the Obama Administration that its plan is unworkable proves that the pushback from states is making a difference," McConnell wrote.
He noted that President Obama would be out of office when the program went into place and that "the next administration may not even continue forward on this disastrous route."
McConnell is also sponsoring a Congressional Review Act resolution to scuttle EPA's rule for new power plants, as well as co-sponsoring a CRA measure to block the Clean Power Plan.
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Obama Administration On Full Throttle For Climate Talks
Nov 9, 2015 | PoliticoPro
By Andrew Restuccia
Top Obama administration officials are working furiously behind the scenes as the Paris climate change summit approaches to keep the momentum for a global deal on track, plot an aggressive communications plan and gird against attacks from Republicans.
The White House has set up an internal war room to coordinate its strategy ahead of the two-week talks that kick off at the end of the month. Secretary of State John Kerry, EPA Administrator Gina McCarthy and Energy Secretary Ernest Moniz have been deliberating about the negotiations in weekly climate-focused huddles with top White House officials like the president's chief of staff, Denis McDonough, and senior adviser Brian Deese, according to aides who briefed POLITICO on the administration's plans.
"[W]e have a chance to put in place a global climate agreement that spurs increased ambition by all countries to reduce carbon pollution and leads to the growth of the clean energy economy," Deese said. "As we get closer to the opening of the Paris talks, the President and the Obama Administration will continue to push for a strong, durable agreement that achieves these goals."
Officials said the administration has coalesced around five priorities for the Paris agreement. The final deal should incorporate ambitious climate change plans from every country; include provisions that pressure nations to review those plans every five years with an eye toward increasing ambition over time; impose a transparency regime to review the climate commitments; encourage more public and private financing to help poor countries cope with climate change; and prod subnational groups like cities and corporations to take steps to slash emissions.
The stakes are high for Obama, who has made securing a climate deal one of his top second-term priorities and a key part of his legacy. A failure would be a huge political embarrassment — not to mention the potential consequences for the planet. Administration officials are wary of repeating the mistakes of the 2009 Copenhagen climate talks, which ended with a watered-down agreement and bitterness on all sides.
Obama will travel to Paris for the start of the talks, joining dozens of other world leaders. Kerry, who has pressed for action to combat climate change for decades, will participate in nearly the entire two weeks of the conference, an unprecedented amount of time at a climate summit for a secretary of State.
As the Paris climate talks approach, the White House is furiously strategizing, even though the day-to-day negotiations are left to the State Department.
A new task force is now meeting twice a week to coordinate climate strategy and upcoming announcements with an eye toward Paris. The task force includes senior staff from EPA, the Energy Department and the State Department, as well as staff from the White House offices of communications, legislative affairs, counsel and science and technology policy, a White House official told POLITICO.
Kerry, Moniz and McCarthy have made the Paris talks the core focus of their weekly meetings, which are chaired by Deese and include regular participation from McDonough, the White House official said.
The White House is also keeping in regular contact with Democratic leaders in both chambers, as well as other climate-focused lawmakers, to coordinate strategy, the official said. Deese, for example, met with a group of liberal Senate Democrats to talk about climate change and Paris in a closed-door meeting in the Capitol in late September, congressional aides said. The State Department also holds regular bipartisan briefings on the climate negotiations with members of Congress.
In another indication of the degree of focus on Paris, the White House has hired Tom Reynolds, a veteran Democratic aide, to coordinate high-level climate communications. Echoing its strategy on the Iran deal, the White House launched a Twitter handle, @FactsOnClimate, in part to "correct the record when there is public misinformation" ahead of the Paris talks, the White House said.
The frenzy of activity represents a step change, even for an administration that has gone on the offensive on climate change in the past year.
As one of the world's biggest emitters, the United States will be at the center of the often-tense and chaotic negotiations. After years of criticism that it isn't doing enough to slash its emissions, the United States is hoping it will be hailed as a climate change champion this time around.
Obama's climate change negotiators — led by Todd Stern, the State Department's climate envoy — will come to Paris touting a robust domestic climate change agenda that includes first-of-their-kind final greenhouse gas regulations for power plants and a litany of less high-profile measures that the White House has been unveiling on a regular basis for months. Friday's rejection of the Keystone XL pipeline is expected to kick off a sprint to Paris that will include a series of new climate-related announcements.
All of this comes as Obama's personal interest in securing a deal in Paris has reached a fever pitch. The president has come to believe that climate change will be one of his biggest legacy-builders, administration officials said, and he has grown increasingly worried about the impact that surging emissions will have on his children and grandchildren, a theme he returns to often in speeches.
"An agreement in Paris would be a turning point in terms of action on climate, supplying the confidence and the certainty countries need to act," a White House official said. "It would show countries that if they act, their partners and competitors will do so as well. And it would send a clear signal that nations are committed to tackling climate change and that there is no going back."
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FERC Asked to Reevaluate 1978 Energy Law, Policies
Nov 10, 2015 | BNA Daily Environment Report
By Brian Eckhouse
Three Republican lawmakers asked the U.S. Federal Energy Regulatory Commission to reevaluate a landmark 1978 law that helped promote wider use of energy efficiency and renewable energy.
Sen. Lisa Murkowski (R-Alaska) and Reps. Fred Upton (R-Mich.) and Ed Whitfield (R-Ky.), who all lead energy committees or subcommittees, submitted a letter Nov. 6 asking FERC to hold a technical conference on the Public Utility Regulatory Policies Act (PURPA).
The law requires utilities to purchase power from renewable energy projects under some circumstances. The three legislators said that a policy drafted when clean-power technologies were still emerging may need to be revisited.
“Electricity markets, generation technologies and investments in the electric grid have changed substantially since PURPA was enacted nearly 40 years ago,” the legislators said in the letter. “Since then, competitive electricity markets and open access policies have emerged and matured, expanding the markets for new generation resources, particularly renewable energy resources.”
PURPA Contracts
Some utilities, including PacifiCorp, a unit of Warren Buffett's Berkshire Hathaway Energy Co., have lobbied Congress to amend PURPA.
“BHE's PacifiCorp utility is experiencing a significant increase in PURPA contract requests, despite the fact that its long-range resource plan shows no need for additional generation resources until 2028,” Jonathan Weisgall, vice president of legislative and regulatory affairs at Berkshire Hathaway Energy, said during a June hearing before the House Energy and Commerce Subcommittee, led by Whitfield.
The company is “locked into a PURPA ‘must purchase’ contract at rates that are 43 percent higher than the market price—forcing customers to pay an incremental $1.1 billion over the next 10 years for electricity that is not even needed,” the three lawmakers said in their letter. Murkowski is chairman of the Senate Committee on Energy and Natural Resources, and Upton heads the House Committee on Energy and Commerce.
A FERC spokesman in Washington didn't immediately return a call seeking comment.
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Clinton Vows to Make Climate Change ‘Huge' Priority
Nov 10, 2015 | BNA Daily Environment Report
By Anthony Adragna
Democratic presidential frontrunner Hillary Clinton said Nov. 9 she would continue and expand on President Barack Obama's climate change initiatives as some of her first acts in office.
Clinton, speaking in Nashua, N.H., said she would look at renewing executive actions on climate change, pursue legislation to address the problem and set up the next phase of international negotiations on the subject during her first weeks in office.
“This will be a huge part of what I try to do in my very first weeks in office,” Clinton said in accepting the endorsement of the League of Conservation Voters Action Fund.
The former secretary of state, New York senator and first lady has pledged to make the U.S. a clean energy superpower if elected president, but she has increasingly sought to shore up her environmental bona fides to allay the concerns of some environmental advocates (151 DEN S-14, 8/6/15).
This year, for example, Clinton came out against the proposed Keystone XL pipeline and drilling in the Arctic. Both of those were key issues that some in the environmental community saw as reasons for concern with her candidacy, since they said she hadn't been clear about her positions.
Optimistic About Paris Talks
In the shorter term, Clinton said there is a “very high hope and expectation that there can be a new, ambitious, lasting international climate agreement” that would emerge from weeks of international negotiations in Paris this December.
If those talks are ultimately successful, it will be because of the foundation Clinton and Obama helped establish during negotiations in Copenhagen in 2009, she said.
The U.S. leaders did help salvage a last-minute deal during the 2009 talks, but many observers have said the Copenhagen accord fell well short of a breakthrough and led to grumbling by many nations who felt they were essentially cut out of the agreement.
But Clinton said the negotiations were important because they showed that the world must “stay focused and stay relentless in dealing with these big problems,” and they brought many of the developing countries to the table for the first time. She vowed to continue those principles if elected.
“As president, I will build on what we get done in Paris and will keep pushing it,” Clinton said. “It will always be a high priority of mine.”
‘Move Away From Coal.'
During her remarks, Clinton said she would defend Environmental Protection Agency final rules to cut carbon dioxide emissions from power plants, but she also said she would pursue a transition fund for communities harmed by the downturn in the coal industry.
“We have to move away from coal,” Clinton said. “Everyone understands that. There's no doubt about it. But that does not and should not mean we move away from coal miners, their families and their communities.”
Other struggling communities worthy of attention are those of low-income residents who live close to power plants and other industries that generate significant amounts of pollution, Clinton said.
“I think this is something we don't talk about enough,” Clinton said. “Environmental justice shouldn't just be slogan. It should be a goal.”
Hails Investigation Into Exxon
Clinton also waded further into the issue of whether Exxon Mobil Corp. may have misled the public or investors about the risks of burning fossil fuels.
Clinton hailed New York Attorney General Eric T. Schneiderman's decision to launch an investigation into the company's activities as a “big deal” (215 DEN A-10, 11/6/15).
“This is something that all three of the Democratic candidates called for,” she said, aligning herself with Sen. Bernie Sanders of Vermont and former Gov. Martin O'Malley (Md.).
In endorsing Clinton for president, the League of Conservation Voters Action Fund hailed her “proven history of leadership” and “strong environmental record.”
“When it comes to fighting the climate crisis, the stakes couldn't be higher—and we are confident that Hillary Clinton is the right person for the job,” Gene Karpinski, president of the fund, said in a statement. “Hillary Clinton is without a doubt the most effective leader to stand up to Big Polluters and push forward an aggressive plan to tackle climate change and get it done.”
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EPA Eyes April 2020 For Final NOx-SOx NAAQS Decision
Nov 9, 2015 | InsideEPA
EPA is planning to release in April 2020 a final decision on whether to launch a first-time joint “secondary” national ambient air quality standard (NAAQS) to reduce environmental harms from nitrogen oxides (NOx) and sulfur oxides (SOx), a standard that some scientists have cautioned might be too difficult to implement.
In a Nov. 9 Federal Register notice EPA announced its draft integrated review plan (IRP) for the NOx-SOx NAAQS review, which includes a timeline for the assessment. Under the agency's plan it would release in July next year a first draft of an integrated science assessment (ISA) -- a comprehensive review of existing policy-relevant science on NOx and SOx emissions.
EPA's Clean Air Scientific Advisory Committee (CASAC) would then review the ISA and those comments would help inform a risk and exposure assessment slated for release in November 2016, providing quantitative characterizations of exposures and associated risks to the environment from NOx and SOx emissions.
That review will eventually help inform the agency's policy assessment, in which EPA will float options for setting the first-time joint standard. A first draft of the assessment is due in February 2018, with a notice of proposed rulemaking set for May 2019 and the final NAAQS decision to be made by April 2020.
EPA held a “Kickoff Workshop” at Research Triangle Park, NC, in March to debate the merits and challenges of a joint NOx-SOx NAAQS. Secondary NAAQS are designed to protect the environment, while primary standards are intended to protect human health. The agency in 2012 shelved plans to issue a joint standard at that time, citing data uncertainties, and said it would continue to research the issue -- leading to the new workshop.
Environmentalists in Center for Biological Diversity (CBD) v. EPA sued the agency in federal appeals court challenging the April 3, 2012, final rule that dropped an earlier draft proposal to set a first-time combined NOx and SOx secondary standard. EPA in that rule said scientific uncertainties prevented it launching the joint standard, which would have employed a new method called the Aquatic Acidification Index (AAI).
The U.S. Court of Appeals for the District of Columbia Circuit in a May 27, 2014, ruling acknowledged the data gaps and EPA's plans to pursue a pilot air research study to inform a potential future NOx-SOx standard, and ruled in favor of the agency against forcing issuance of the NAAQS. CBD faulted the decision and urged the three-judge panel that heard the case to rehear it, but the court denied that request in a Dec. 4 order.
The end of the litigation shifts focus to the agency's IRP and its upcoming review for a potential joint NOx-SOx NAAQS, but some scientists at March's workshop warned such a limit could be hard to implement.
EPA will take comment on the draft IRP through Dec. 30.
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60 Groups Press Lawmakers 'To Mitigate' New Ozone Rule
Nov 10, 2015 | E&E Daily News
By Sean Reilly
Dozens of business groups are pressing Congress to quickly block U.S. EPA's new ozone standard from taking effect, warning in a letter that close to one-third of the nation's counties could fail to meet the lower ambient air quality threshold of 70 parts per billion.
Without immediate action, the new rule "will negatively impact our economy and stifle growth in many parts of the country," some 60 organizations said in the letter to lawmakers that echoes previous criticism of the new standard. Lawmakers should listen "to the concerns of their communities and stakeholders and protect our nation's recovering economy by taking necessary legislative steps to mitigate the rule's most harmful economic consequences while continuing EPA projected improvements to ozone air quality."
The letter, dated Friday, was released yesterday by the National Association of Manufacturers. The diverse lineup of signers included the Institute of Makers of Explosives and Oregon Women in Timber, as well as NAM, the National Federation of Independent Business and other high-profile lobbies.
While the letter did not spell out what alternate path they want Congress to take, it said that thousands of elected officials and other stakeholders had urged EPA to maintain the existing 75 ppb standard. In addition, several state attorneys general have previously contended that no human clinical studies show significant public health effects below 72 ppb of ground-level ozone, a key component of smog.
But EPA Administrator Gina McCarthy has said the 70 ppb limit will protect public health with an adequate safety margin, as required by the Clean Air Act. The rule's Oct. 26 publication has already prompted lawsuits from five states and Murray Energy Corp.; more are expected during the 60-day window for legal challenges to be filed.
By EPA's own data, 217 of the United States' approximately 3,000 counties cannot meet the 75 ppb standard, the letter said. Under the 70 ppb benchmark, the number could swell to 958, "subjecting large parts of the country to costly nonattainment control requirements," the signers added.
McCarthy has called the new standard achievable, with EPA likely to designate areas that are in noncompliance with the standard in 2017 based on 2014, 2015 and 2016 air quality data. Environmental groups have objected that the new threshold is too weak.
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