Preview Newsletter
ACC PM 11/12/2015
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(ACC Mentioned) Ocean Battleground: Unconscious Plastics Industry Runs Amok
Nov 12, 2015 | Huffington Post
By Belinda Waymouth
We're so adept at inventing ways to improve the human condition, we're unwittingly traveling in the opposite direction -- where to admire our industrialized accomplishments is to stand on shaky oil-spattered ground. -
Stakeholders Question Approach of Prop 65 Litigation Reform
Nov 12, 2015 | Chemical Watch
By Kelly Franklin
Public comments submitted to California's Office of the Attorney General on proposed amendments to regulations, governing private litigation of Proposition 65 violations, support the proposal's intent, but raise concerns with the agency's approach (CW 7 October 2015). -
California Removes Diaminotoluene (Mixed) from Prop 65
Nov 12, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (Oehha) has removed diaminotoluene (mixed) from the state's Proposition 65 list of substances known to the state to cause cancer, due to insufficient evidence of the substance's carcinogenicity (CW 28 August 2015). -
EWG's Guide To A Healthy Thanksgiving
Nov 12, 2015 | Environmental Working Group
By Dawn Undurraga, Megan Boyle, Sonya Lunder
Roughly a third of the meat on every turkey goes straight into the garbage. If you tend not to finish your leftovers, buy a smaller bird this year. Try an organic, local or heritage turkey or one raised without antibiotics. Or embrace a seasonal centerpiece of stuffed winter squash. -
Obama's Early Bipartisan Push Lacked Commitment -- LaHood
Nov 12, 2015 | E&E - Greenwire
By Peter Baker
Former Transportation Secretary and Republican congressman Ray LaHood says in a new book that President Obama's promises of bipartisanship were mostly for show. -
EPA Seeks To Boost Oil, Gas Industry Flexibility In Voluntary Methane Plan
Nov 12, 2015 | InsideEPA
By Bridget DiCosmo
EPA appears to be trying to enhance flexibility for oil and natural gas production companies that might take part in the agency's revised plan for the sector to voluntarily reduce its emissions of the greenhouse gas (GHG) methane... -
Advocates Hope EPA Data Request Will Spur Oil & Gas Air Rule Revisions
Nov 12, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists hope EPA's recent request for information on hazardous air pollutant (HAP) emissions from the oil and natural gas sector is an early indication that the agency will revise its 2012 air toxics rule for the sector... -
Lawmakers Sharpen Legislative Knives Before Paris Climate Talks
Nov 12, 2015 | E&E - Climatewire
By Jean Chemnick
Congressional partisans on both sides of the climate wars are fortifying their positions as landmark U.N. negotiations in Paris near. -
6th Circuit Reinforces Citizens' Ability To Pursue Emissions 'Nuisance' Suits
Nov 12, 2015 | InsideEPA
By Stuart Parker
The U.S. Court of Appeals for the 6th Circuit in two recent rulings has reinforced citizens' ability to pursue state public nuisance lawsuits against industrial sources of air pollution, building on an earlier landmark ruling from the 3rd Circuit and avoiding a circuit split that critics of the suits could have used to seek Supreme Court review. -
NARUC Talk on Utility Convergence Turns to When, Not If
Nov 12, 2015 | E&E - Energywire
By Edward Klump
If any state regulators were wondering about all the talk of convergence here this week, Susan Story arrived to offer a primer. And maybe even a road map.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Transportation News
Energy and Environment News
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(ACC Mentioned) Ocean Battleground: Unconscious Plastics Industry Runs Amok
Nov 12, 2015 | Huffington Post
By Belinda Waymouth
We're so adept at inventing ways to improve the human condition, we're unwittingly traveling in the opposite direction -- where to admire our industrialized accomplishments is to stand on shaky oil-spattered ground.
Because our worst mess comes from the heyday we're having with hydro-carbons - oil - in all its various incarnations.
One of the most useful things we make from oil is plastic - nearly 300 million tons a year! But plastic doesn't EVER go away. Now it's everywhere.
How did such an advanced species trash the planet in such a short amount of time?
Evolutionary Biologist and Harvard Emeritus, E.O. Wilson, sums it up in a word - narcissism. We're so intensely interested in individual relationships our social intelligence is off the charts. But this communicating/cooperating genius comes at a price - our environmental management skills are rubbish.
Wilson claims adaptive narcissism makes it easy for humans to think the world was made for us, and we don't need to know about the eight million odd other species sharing planet earth.
It's becoming increasingly apparent this is not the case. The fish that eat our plastic are the fish that become our dinner. A report last month found a quarter of fish for sale in Indonesia and California markets have plastic or manmade debris in their guts.
According to Wilson, things such as out-of-control plastic pollution happen because it's not our rational conscious brains making the big decisions, but rather our impulsive emotional unconscious that's in charge.
Any therapist worth her hourly fee will tell you the overriding characteristic of the unconscious is - it wants what it wants when it wants it - regardless of collateral consequences.
Recent news makes the plastics industry a perfect case in point.
Plastic industry heavyweights -- the DOW Chemical Company, the Coco-Cola Company, and plastic manufactures lobby group the American Chemistry Council - among others -- sponsored a report aiming to reduce ocean plastic. But "Stemming the Tide" became quite the lightning rod.
Because the report makes abundantly clear that while the plastics industry can see the burgeoning marine pollution problem, it has no intention to stop or modify what it's doing, even insisting plastic production will increase.
The report singles out five countries with so-called plastic leakage - more plastic refuse than their waste management infrastructure can accommodate. It recommends these countries - China, Indonesia, The Philippines, Thailand and Vietnam - increase incineration of plastics that can't be recycled.
This could reduce ocean plastic, but does so by changing the form the pollution takes - from floating waste to very nasty airborne pollution.
Exacerbating air quality problems in rapidly industrializing countries that already suffer - air pollution kills four-thousand people a day in China - doesn't make sense. No one in their rational mind wants more dioxins - highly toxic substances released when plastic burns - not to mention increased carbon emissions and particulate pollution.
But even in the face of harsh criticism by environmental NGOs, the plastics industry keeps touting incineration as a win-win - with energy created, plastic refuse reduced - all clearing the way for more single-use plastic to be manufactured with supposed impunity.
The plastics industry it would seem is operating unconsciously on several levels. But that's to be expected - Noam Chomsky has been telling us for years corporations are designed to behave like psycho/socio-paths.Wilson says it's imperative we recognize the unconscious aspect of the human brain - unique to our species. That only when we connect our deepest darkest decision-making unconscious to our logic and technological abilities, will there be hope of regaining balance with the natural earth systems - on which our survival depends.
Meanwhile I'll keep doing what I'm evolutionarily best at - communicating. Telling you all about problematic hydro-carbons - plastic is unfortunately just one of them.
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Stakeholders Question Approach of Prop 65 Litigation Reform
Nov 12, 2015 | Chemical Watch
By Kelly Franklin
Public comments submitted to California's Office of the Attorney General on proposed amendments to regulations, governing private litigation of Proposition 65 violations, support the proposal's intent, but raise concerns with the agency's approach (CW 7 October 2015).
The OAG, part of the state's Department of Justice, has proposed amendments that aim to “stem abuse” of litigation, brought by private parties. These include changes that would:cap the value of additional settlement payments (ASPs) paid in lieu of civil penalties;ensure that penalty payments are used for purposes relevant to furthering the goals of Prop 65; andraise the standards for determining whether a “significant” public benefit has been conferred, which is the prerequisite for a plaintiff's being awarded attorney's fees.
A coalition of close to 200 industry organisations, headed by the California Chamber of Commerce, said the proposal was a “welcome step forward”, but “key aspects of the DOJ's proposal will fall short of its stated objectives and, worse, may increase businesses' costs in resolving private enforcement claims.”
Capping the value of ASPs may drive up overall litigation costs, as plaintiffs may seek to cover this “shortfall” through additional attorney's fees or increased civil penalties, added the coalition. Instead, the OAG should prohibit all ASPs; or, if not prohibited, require recipients to demonstrate why an ASP is “necessary and in the public interest” in lieu of a civil penalty.
The coalition also raised issues with proposed changes on how to determine whether a product reformulation has conferred significant public benefit. It argued that the proposed revision could be interpreted to require the “costly exercise” of before-and-after exposure assessments.
It suggested instead that the OAG impose “increased scrutiny early in the private enforcement process”.
The Center for Environmental Health (CEH), a pressure group involved in almost 200 Prop 65 suits settled in 2014, also raised concerns with the proposed "public benefit" changes, claiming they are “ambiguous” and could make it “unnecessarily onerous” for successful plaintiffs to secure attorney's fee payment.
It said settlements that have required product reformulation have lead to “substantial reductions in industry's use of, and Californians' exposure to, toxic chemicals”, and as such should be encouraged. But the current proposal may shift the burden of proof to a plaintiff to determine the amount of exposure, and “could lead to a mini-trial just to get a settlement approved, as there could be legitimate disputed issues of fact [as to a host of] exposure assessment issues.”
Regarding the proposal to cap ASPs to the value of civil penalties, the group said the OAG offered “no rational basis” for the change. The awarding of ASPs can “further the purposes of Proposition 65”, and “there is simply no reason for this limitation.”
However, it did offer its support to the overall goal to “curtail uses of Proposition 65 that provide little public benefit”. To further this aim, it suggested the OAG consider banning all out-of-court settlements completely, or require that settlement agreements be first reported to the OAG to “minimise opportunities for mischief”.
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California Removes Diaminotoluene (Mixed) from Prop 65
Nov 12, 2015 | Chemical Watch
California's Office of Environmental Health Hazard Assessment (Oehha) has removed diaminotoluene (mixed) from the state's Proposition 65 list of substances known to the state to cause cancer, due to insufficient evidence of the substance's carcinogenicity (CW 28 August 2015).
It had been listed under Prop 65 since 1990, but was recently reviewed by the state's Carcinogen Identification Committee (CIC), following a petition to re-evaluate its status.
The committee's review determined that the EPA document, relied upon to list the substance, only showed evidence of the 2,4-diaminotoluene isomer's carcinogenicity, and that diaminotoluene (mixed) “has not been clearly shown, through scientifically valid testing according to generally accepted principles, to cause cancer”.
The delisting will take effect from 20 November.
The agency did not announce an intention to list additional diaminotoluene isomers, including the 2-5 isomer widely used in hair dyes (CW 26 October 2015). The 2-4 isomer remains listed as a substance known to the state to cause cancer.
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EWG's Guide To A Healthy Thanksgiving
Nov 12, 2015 | Environmental Working Group
By Dawn Undurraga, Megan Boyle, Sonya Lunder
1) Roughly a third of the meat on every turkey goes straight into the garbage. If you tend not to finish your leftovers, buy a smaller bird this year. Try an organic, local or heritage turkey or one raised without antibiotics. Or embrace a seasonal centerpiece of stuffed winter squash.
2) Cranberry sauce is delicious, but most store-bought varieties are more than 30 percent sugar. Make your sauce from scratch for great flavor and a nutritional boost. Use less than two-thirds of a cup of sugar per 12 ounces of cranberries, and opt for organic cranberries if you can. Conventional berries are heavily treated with pesticides.
3) Pumpkin pie is a Thanksgiving tradition, with good reason. Pumpkin is packed with nutrition, widely available locally and generally low in pesticides. Baked pears are simple and delightful, too.
4) White potatoes make EWG’s Dirty Dozen foods because of high pesticide loads. Try nutrient-packed mashed sweet potatoes from the Clean Fifteen.
5) Homemade gravy is a delicious way to get the most out of your turkey, but packs in the empty calories. Store-bought gravy can contain heart-damaging trans fats and too much sodium. Enjoy gravy in small doses or try a light, flavorful mushroom ragout instead.
6) Stuff your stuffing with low-pesticide produce. Organic apples, celery, pears and carrots perk up stuffing and add nutritional punch. Walnuts and pecans work nicely in place of sausage.
7) Green beans are a Thanksgiving staple, but canned options are high inbisphenol A, a toxic chemical in the epoxy that lines metal food cans. Go for fresh or frozen organic green beans or other nutritious veggies like peas, broccoli and Brussels sprouts.
Learn more about feeding your family well and finding healthier choices in the grocery store with
EWG’s Food Scores: www.ewg.org/foodscores
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Obama's Early Bipartisan Push Lacked Commitment -- LaHood
Nov 12, 2015 | E&E - Greenwire
By Peter Baker
Former Transportation Secretary and Republican congressman Ray LaHood says in a new book that President Obama's promises of bipartisanship were mostly for show.
LaHood was recruited by then-Chief of Staff Rahm Emanuel in 2009 to serve as the only former elected Republican in the president's Cabinet. But rather than marking the start of a new era of political cooperation, LaHood now says his tenure showed the failure of the two parties to work together.
Though the White House says many top Republicans were never interested in working with Obama, LaHood said the president could have accomplished more if he had been more persistent.
"I do not believe the White House ever committed fully to a genuine bipartisan approach to policymaking, despite the president's words to the contrary," LaHood wrote in his memoir, "Seeking Bipartisanship: My Life in Politics," published last month.
LaHood said the White House's decision to let then-House Speaker Nancy Pelosi (D-Calif.) pass the 2009 economic stimulus legislation without any Republican votes was "the beginning of the end of bipartisanship."
LaHood said he thought Obama could have won the support of some Republicans if he had made more concessions to them. That would have helped create a spirit of cooperation in Congress, LaHood said (Peter Baker, New York Times, Nov. 11).
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EPA Seeks To Boost Oil, Gas Industry Flexibility In Voluntary Methane Plan
Nov 12, 2015 | InsideEPA
By Bridget DiCosmo
EPA appears to be trying to enhance flexibility for oil and natural gas production companies that might take part in the agency's revised plan for the sector to voluntarily reduce its emissions of the greenhouse gas (GHG) methane, by ensuring the plan will not duplicate pending methane rules for the sector or GHG reporting requirements.
The agency "aims to minimize the reporting burden to allow partner companies to focus time and resources on implementation of methane-reducing activities," according to an Oct. 19 technical support document for the Natural Gas STAR Methane Challenge Program that was recently added to EPA's website. The program is a "new mechanism" for oil and gas companies to "make and track ambitious commitments to reduce methane emissions.
Because EPA already collects oil and gas GHG data under subpart W of the agency's reporting program for many facilities, the agency intends to rely on that data the extent possible rather than collect new data, the document says.
EPA is proposing to collect some information from partner companies through annual reporting, to "provide context for participation in the program and facilitate annual tracking of progress," including a list of facilities included in the voluntary plan that report to subpart W, a list of included facilities that do not, any applicable air regulations that apply to those facilities, and a list of facilities acquired or divested during the reporting year.
EPA also says that it is seeking to ensure alignment with its forthcoming package of air rules for the sector. Those include its proposed first-time new source performance standards (NSPS) for regulating methane and control techniques guidelines for curbing ozone from existing oil and gas operations in areas not attaining EPA's ozone ambient air limit.
"For equipment leaks/fugitive emissions and pneumatic pumps, EPA recognizes the potential overlap for coverage of this emissions source with on-going regulatory actions, including the proposed updates to NSPS and draft Control Techniques Guidelines," EPA says. "Methane Challenge intends to specify mitigation options that are consistent with regulatory approaches, with greater flexibility included in the voluntary Program as needed. Therefore, as a result of regulatory developments in process, a proposal for this commitment option will be phased-in at a later date."
'Partnership Agreement'
The agency also released Nov. 10 a "Partnership Agreement" outlining the responsibilities for participating companies and for EPA under the new program. For example, EPA's responsibilities include assisting companies with implementation by providing technical information and updating the list of participating sources and mitigation options covered in the program, and encouraging new control technologies and monitoring methodologies.
The participant's responsibilities include submitting an implementation plan within six months of the agreement outlining expected activities and milestones for achieving commitments and implementing best management practices for sources across the company's operations to achieve mitigation targets.
EPA is accepting stakeholder feedback on the proposal through Nov. 13, after previously releasing a revised plan for the program in July following industry criticism of the merits of a previous voluntary plan.
"The proposed Methane Challenge Program incorporates flexibility into several program elements, including implementation timeframes to inspire ambition in a structure that is achievable," EPA said in the revised plan, which replaced a planned Natural Gas STAR "Gold" program that industry doubted would gain any participants.
The new voluntary program aims to build on the success of the agency's existing Natural Gas STAR voluntary program to identify cost-effective technologies and options for voluntary emission reductions from the sector.
The agency is crafting the framework as part of a package to cut the sector's methane emissions in accordance with the President's goal of reducing 40-45 percent of the sector's methane by 2025.
The proposed voluntary program is intended as a partnership between EPA and industry, setting best practices for facilities to cut emissions of methane. As a result, many in industry have urged EPA to allow participation in the voluntary program as an alternative to strict new emissions standards.
Industry has also had success in getting the agency to scrap its 2014 plan for the voluntary program after complaining that it would have been too burdensome and few companies would have participated.
Oil and gas companies said the agency must ensure a new program provides significant flexibility in how and where to reduce emissions, saying it is vital to address if the program is to win the robust industry participation the agency is seeking.
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Advocates Hope EPA Data Request Will Spur Oil & Gas Air Rule Revisions
Nov 12, 2015 | InsideEPA
By Bridget DiCosmo
Environmentalists hope EPA's recent request for information on hazardous air pollutant (HAP) emissions from the oil and natural gas sector is an early indication that the agency will revise its 2012 air toxics rule for the sector as well as a review of the residual risks to humans from the sector's emissions that environmentalists have criticized.
In a pre-publication notice released Nov. 4 ahead of its upcoming publication in the Federal Register, EPA asks for data not available at the time it crafted the 2012 national emissions standards for hazardous air pollutants (NESHAP) for the oil and gas production industry, as well as the natural gas transmission and storage sectors.
Specifically, the agency asks for groups to submit data within a 60-day comment period on emissions of benzene, toluene, ethylbenzene and xylene (BTEX) from storage vessels without potential flash emissions (PFE) and information on controls for BTEX emissions, and data on a potential compliance issue related to regulated small glycol dehydrators.
The agency says that it is requesting information on all HAPs from storage vessels without PFE and on HAPs other than BTEX from small glycol dehydrators, along with seeking information regarding compliance demonstration issues with its 2012 requirements for curbing BTEX from small glycol dehydrators.
EPA in the notice does not say how it will use the information, but environmentalists are suggesting the data could help form the basis for revising and tightening the 2012 air toxics rule.
The NESHAP -- parts of which are the subject of pending litigation in the U.S. Court of Appeals for the District of Columbia Circuit -- set maximum achievable control technology (MACT) air toxics requirements for BTEX compounds for several sources in the production, transmission and storage sectors. But while EPA proposed extending them to storage vessels without PFE, the agency did not finalize that proposal.
At the time of issuing the final rule, EPA said "we need (and intend to gather) additional data on these sources in order to analyze and establish MACT emission standards for this subcategory of storage vessels."
In the new Register notice, the agency says it is interested in data characterizing emissions and emission rates of storage vessels in production sector that do not have PFE but that "nonetheless emit HAP."
One environmentalist says, "It's positive to see EPA admit it doesn't have enough information to adequately regulate air toxics," and says the agency will hopefully use the additional information it collects as a result of the request to begin filling some of what advocates believe are the "substantial gaps" in the 2012 rules.
"An onslaught of ambient air studies have repeatedly reported finding HAPs at levels of concern" from the sector, both those covered by the NEHSAP rule and those that the rule does not regulate, the source adds.
Drilling Emissions
The advocate says EPA needs to address ambient monitoring data showing BTEX compounds at levels of concern in the vicinity of equipment at well sites, data indicating there are HAPs not covered under the NESHAP emitting from oil and gas sources, and industry equipment not captured by the 2012 emissions rule.
Environmentalists also claim EPA's "residual risk" review of the risk to human health from oil and gas sector air toxics is inadequate to protect health and unlawful under the Clean Air Act.
They say the agency improperly relied on outdated emissions inventory estimates from 2005, which contained values for only roughly 25 percent of the sources subject to the rule. They say this leaves several air toxics, including benzene, n-hexane, formaldehyde, naphthalene and others, either insufficiently regulated or unregulated. But the new data request could give the agency fresh information to revise that review.
The 2012 NESHAP updated EPA's 1999 air toxics limits for oil and gas production, transmission and storage operations. EPA issued the final revised rule in 2012, alongside updated new source performance standards for the sector, which set controls for volatile organic compounds and sulfur dioxide emissions.
The rule is part of a package of regulations EPA issued for the oil and gas sector, and the residual risk review satisfied an air law mandate for the agency to review air rules eight years after their issuance.
In an Oct. 15, 2012 petition for reconsideration of the NESHAP, a host of groups including the Center for Biological Diversity and Natural Resources Defense Council said EPA's estimates do not account for a majority of HAPs from the sector and that the agency must provide a formal rationale for its reliance on the 2005 estimates over actual data.
The groups also argued that new studies became available after the final rule indicating that the risk estimates underpinning the rule significantly underestimate risk, including a February 2012 Journal of Geophysical Atmospheres study titled, "Hydrocarbon Emissions Characterization in the Colorado Front Range -- A Pilot Study," and others.
"In light of the findings of these studies, a more careful assessment of emissions and health risk are needed, to address the need for a stronger rule to protect public health," the petition said.
In the petition, the advocates referenced some of the issues EPA appears to be collecting data on in theRegister notice. The petition urged the agency to set MACT requirements for storage vessels without the PFE, saying the final rule unlawfully delayed" the controls "due to a professed lack of necessary data."
For small glycol dehydrators, the agency should strengthen the limit on BTEX emissions by setting a standard that "actually follows the Section 112(d)(3) (A) requirement to base the floor on the emission reductions achieved by the best performers on average." Additionally, EPA should set a limit on all other HAPs which small glycol dehydrators emit, in addition to BTEX, according to the advocates' petition for reconsideration.
Pending Litigation
The D.C Circuit in a Sept. 24 order agreed to extend an existing stay holding in abeyance litigation over the NESHAP rule through Jan. 12, 2016, in American Petroleum Institute, et al., v. EPA, a suit that consolidated petitions for reconsideration from the environmental groups and from industry.
EPA said previously in the suit that it is in the process of developing the proposed reconsideration rule that addresses the issues for which it intends to grant reconsideration, but it needs additional time to complete the proposal. "EPA has determined that additional information is necessary to enable EPA to evaluate or address some of the issues raised in the reconsideration petitions," the agency said in a Sept. 16 motion to extend the stay.
The agency has not given details about which specific provisions it may include in the reconsideration rulemaking. But a second environmentalist says EPA has several legal options for addressing the gaps in the 2012 air rules, which may not require the agency to launch a totally new residual risk review -- which would be more time consuming -- including under general Clean Air Act section 112 air toxics rulemaking authority.
But that source adds that EPA should conduct a new risk assessment of air toxics at some point to get a complete picture of the "full suite" of impacts for those living near oil and gas sites.
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Lawmakers Sharpen Legislative Knives Before Paris Climate Talks
Nov 12, 2015 | E&E - Climatewire
By Jean Chemnick
Congressional partisans on both sides of the climate wars are fortifying their positions as landmark U.N. negotiations in Paris near.
For House and Senate Republican majorities, that means making the case to the world as forcefully as possible that White House pledges of aid and greenhouse gas emissions reductions are unlikely to materialize -- and shouldn't be counted on in any agreement.
Climate advocates, meanwhile, are preparing to counter that message by traveling to Paris to help President Obama and his Cabinet achieve their long-sought goal of facilitating a deal that allows for U.S. participation.
"Part of what we're going to do is to walk anybody who has any misgivings about our level of commitment -- walk them through how our legislative process works, what the next steps are, how monumentally difficult it would be to undermine this," Sen. Brian Schatz (D-Hawaii) said in an interview with ClimateWire.
Schatz said the delegation's mission would be to allay international fears about the future of policies like U.S. EPA's Clean Power Plan, which are key to the U.S. negotiating position but are under attack at home.
"People shouldn't mistake the United States having a labyrinthine legislative process for not having the support to sustain the president's Clean Power Plan," he said.
Democratic members of both chambers are expected to attend the U.N. confab that runs over two weeks starting Nov. 30. While the list is still in flux, Foreign Relations ranking member Ben Cardin (D-Md.) and Climate Action Task Force Chairman Sheldon Whitehouse (D-R.I.) have said they will go if the Senate schedule permits.
White House climate adviser Brian Deese has been reaching out to allies on Capitol Hill to coordinate strategy, and EPA Administrator Gina McCarthy, Energy Secretary Ernest Moniz and Secretary of State John Kerry have been meeting regularly with senior White House staff to prepare for Paris. Kerry will attend the conference, and McCarthy and Moniz are also likely to do so.
"In recent weeks, the administration has stood up an interagency task force that meets twice weekly to ensure coordination and seamless strategic planning across legislative, communications and engagement offices," said a White House aide. "These efforts also include agency-specific planning sessions and weekly meetings with Cabinet members and senior administration officials, all with the goal of working toward a successful Paris agreement."
Addressing climate change internationally is "a priority policy issue and important legacy piece for President Obama," the aide said.Sending a CRA message in Paris?
It is less clear whether Republicans will visit the French capital or whether they will make their case by holding votes in the House and Senate on resolutions to kill EPA's power plant carbon rules.
The House Energy and Commerce Committee is expected to pass the two Congressional Review Act (CRA) resolutions as easily next week as the subcommittee did last week. The full Senate might take them up next week or could wait to vote until Congress returns from Thanksgiving and the Paris conference is underway (E&ENews PM, Nov. 3).
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) said this week he doesn't know whether he will make the trip. He decided to attend the 2009 Copenhagen, Denmark, gathering at the last minute, he noted, though Inhofe now frequently recounts how he squared off against the Obama administration as a "one-man truth squad" in Denmark.
"That could happen again this year," he said.
Inhofe said his decision would hinge on whether Democratic members seemed to be gaining traction with foreign delegates.
"I want to wait and see what kind of impact they have," he said.
Schatz said Republicans and their handful of Democratic collaborators hoped "to kick up dust and create confusion" in Paris with their CRA resolutions, which will not overcome a veto.
But Inhofe said the resolutions -- which are brought under a rarely used administration oversight law that allows for expedited Senate consideration -- would put his colleagues on the record once and for all on the EPA rules. Democrats from fossil-fuel-rich states will have to show their hands.
"Those people will not any longer be able to go home and say that was the bureaucracy that did it, we were not at all for it, and we were opposed to it," said Inhofe.Moderating voices earn jeers as well as cheers
The measures are expected to easily pass both chambers. In the Senate, some Democrats are likely to join co-sponsors Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota in backing them.
Sen. Kelly Ayotte (R-N.H.) indicated that she will vote against the resolutions by endorsing the existing power plant rule. Sen. Susan Collins (R-Maine) is likely to join her, but they may be the only Republican defections.
There is some limited evidence that other Republicans in both chambers are moderating their climate message. Rep. Chris Gibson (R-N.Y.) led a group of House Republicans in September in a resolution calling for a response to warming. And Ayotte joined fellow Republicans Sens. Mark Kirk of Illinois, Lindsey Graham of South Carolina and Lamar Alexander of Tennessee last month in launching a new informal working group to tackle energy and climate issues (Greenwire, Oct. 29).
Ayotte downplayed the role climate change would play this week, saying the group was about "senators getting together to talk about important issues."
"Climate's one of them, but there are other environmental issues, as you know," she said.
Environmentalists, meanwhile, alternately cheered its formation as further evidence that Republicans are bowing to public pressure and reversing course on warming, or decried it as the legislative equivalent of greenwashing.
In a memo this morning, the Climate Action Campaign hailed Ayotte's working group as evidence of "tremendous momentum" away from Senate Majority Leader Mitch McConnell's (R-Ky.) brand of climate obstruction.
But Sierra Club Executive Director Michael Brune earlier this week blasted the Senate quartet in an op-ed in The Hill newspaper for backing a resolution to do away with EPA's Waters of the U.S. rule. He challenged the senators to redeem themselves by unanimously rejecting the two power plant CRA resolutions.
"With these CRA votes, this new working group has an opportunity to prove its mettle and side with the majority of Americans by supporting the Clean Power Plan," he wrote.Not the time for 'adult conversations'
Brune is not likely to get his wish. Kirk, who is locked in a tight race for re-election in 2016, has already said he will back the power plant resolutions, and Graham and Alexander will do the same.
Schatz, meanwhile, said "adult conversations" with emerging Republican partners would have to wait until the Paris conference and the CRA resolutions are in the rearview mirror. He said he expected a unified GOP effort to scuttle Obama's power plant rules and to deny him an international climate legacy.
"I don't think this is the time they're going to break from orthodoxy, but there are a few of them that are looking for that moment," Schatz said.
Even the Clean Power Plan would be less of a political lightning rod when Obama leaves office and industry has started down the road of complying with it, he said.
But the chances that a Republican administration will diligently implement and defend Obama's marquee climate policy don't appear promising.
"The first thing I would do as president is repeal the regulations that are hampering our energy that the president has put in place, including the Clean Power Act," GOP presidential contender Sen. Rand Paul (R-Ky.) declared during Tuesday's Fox Business Network debate, adding of Obama's coal policies, "He's devastated my state."
Former Florida Gov. Jeb Bush has said he would repeal all Obama-era environmental policies. But his call to "start over" on the Clean Power Plan also seemed to hint he would be open to power-sector carbon regulations in some form.
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6th Circuit Reinforces Citizens' Ability To Pursue Emissions 'Nuisance' Suits
Nov 12, 2015 | InsideEPA
By Stuart Parker
The U.S. Court of Appeals for the 6th Circuit in two recent rulings has reinforced citizens' ability to pursue state public nuisance lawsuits against industrial sources of air pollution, building on an earlier landmark ruling from the 3rd Circuit and avoiding a circuit split that critics of the suits could have used to seek Supreme Court review.
A three-judge panel in a unanimous ruling issued Nov. 2 in Bruce Merrick et al. v. Diageo Americas Supply, Inc., rejected arguments by alcoholic drinks maker Diageo that the federal Clean Air Act preempts tort claims brought by citizens under state common laws of public nuisance against companies holding valid air law permits.
The company is accused by local Kentucky residents of causing property damage through "fugitive," or uncontrolled, ethanol emissions from whiskey aging facilities, and the appeals court decision upholds an earlier federal district court ruling in favor of the residents' nuisance claims.
The ruling in Merrick also serves as the basis for the same 6th Circuit panel's rejection, also issued Nov. 2, of similar industry preemption arguments in Little, et al. v. Louisville Gas & Electric Co., et al. In that case, residents are claiming property damage over emissions from a local power plant.
6th Circuit Judges Eugene Siler, John Rogers and Jane Stranch's rulings preserve citizens' rights to bring public nuisance claims, echoing the 2013 finding by the 3rd Circuit in Kristie Bell, et al. v. Cheswick Generating Station that is seen as a landmark backing of state air nuisance claims.
In the Kristie Bell case, the court also upheld the rights of local residents to bring claims under the state common law of public nuisance, in a dispute over ash from a power plant that fell on houses near the Cheswick power plant, owned by GenOn Power Midwest, L.P., near Pittsburgh.
Writing the opinion for the 6th Circuit in Merrick, Rogers references Kristie Bell and concludes that the federal air law does not -- as industry claims -- preempt state air nuisance suits.
"The states' rights savings clause of the Clean Air Act expressly preserves the state common law standards on which plaintiffs sue. The clause saves from preemption 'the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution,' except that the 'State or political subdivision may not adopt or enforce any emission standard or limitation' that is 'less stringent' than a standard or limitation under an applicable implementation plan or specified federal statute," according to Rogers' ruling.
Pollution Controls
Rogers rejects Diageo's argument that the pollution controls at issue must be a limit established through state regulation, arguing that state courts' orders to the company also count.
"State courts are arms of the 'State,' and the common law standards they adopt are 'requirement[s] respecting control or abatement of air pollution,'" he writes. "Thus, the states' rights savings clause makes clear that states retain the right to 'adopt or enforce' common law standards that apply to emissions."
Rogers says that the Clean Air Act savings clause is "materially indistinguishable" from that in the Clean Water Act, which the courts have held to include state courts as a branch of "states" for the purposes of the statutory language, citing, among other cases, the 3rd Circuit's decision in Bell.
He further finds a difference between claims of the air law "displacing" certain nuisance claims under federal common law, and the "preemption" that Diageo claims exists with respect to state common law.
"Diageo argues that the Supreme Court's reasons for concluding that the Clean Air Act displaces federal common law all militate with equal force in favor of holding that the Act preempts state common law. There are fundamental differences, however, between displacement of federal common law by the Act and preemption of state common law by the Act. For one thing, the Clean Air Act expressly reserves for the states -- including state courts -- the right to prescribe requirements more stringent than those set under the Clean Air Act. The Act does not grant federal courts any similar authority," Rogers writes.
The Supreme Court found that the air law displaced nuisance claims under federal common law in rejecting Connecticut's effort to curb greenhouse gas emissions from an electric utility in American Electric Power v. Connecticut, but the 3rd and 6th Circuit have now found the precedent does not cover state law.
Preemption Arguments
In his opinion in Little, Rogers writes that, "Defendants' Clean Air Act preemption arguments are disposed of by our decision in Merrick v. Diageo Americas Supply." Further, "Plaintiffs' state common law claims are not materially distinguishable from the state common law claims raised in Merrick."
The court's rulings fail to establish the clear split among appeals courts that industry opponents have hoped for, in order to support an eventual appeal for the Supreme Court to decide the issue. One industry legal source says, "If one court says it, that's one thing, but when another court says the same thing, you have to take it more seriously. . . . the [6th Circuit] court was more careful in the discussion and more persuasive."
The source says that the "plain text" argument against air law preemption of state law nuisance claims is so strong that even conservative justices at the high court would not likely depart from it. "I can definitely see [Justice Antonin] Scalia saying 'this is what the law says, and that's that.' It would take an activist court to find preemption here."
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NARUC Talk on Utility Convergence Turns to When, Not If
Nov 12, 2015 | E&E - Energywire
By Edward Klump
If any state regulators were wondering about all the talk of convergence here this week, Susan Story arrived to offer a primer. And maybe even a road map.
The CEO of American Water Works Co. Inc. kicked off a panel discussion Tuesday with a lively call for members of the utility sector -- from electricity and natural gas to water and telecommunications -- to find ways to work together.
Story told the annual meeting of the National Association of Regulatory Utility Commissioners (NARUC) that utility services have common challenges. She whipped through a discussion of supplies, infrastructure, regulations, cybersecurity, customer expectations and climate -- saying cyber and resiliency efforts are particularly ripe for joint work.
"I don't think it's an option of: Should we come together and find common solutions?" she said. "It's: When will we do it and how effective will we do so?"
In laying out examples of common issues, Story noted the electric sector's need for sufficient transmission to handle renewables while natural gas and water need transportation to where they're in demand.
With cyber, Story cited concerns about physical attacks, as well as a need to protect customer data. She said the reason for focusing on resiliency is apparent, as shown by droughts and floods and hurricanes.
"It is amazing the similarities and the challenges that we face today that we need to work together on," she said.
There's also a certain interdependence.
Story said the energy industry relies on water in hydraulic fracturing in shale formations. Then, there are electric plants that run on nuclear, coal and natural gas that use water for cooling. At the same time, Story said energy is important in enabling water's transportation and use.
So what can be done in terms of common efforts, exactly?Customer expectations
Much of the focus at this week's NARUC conference was on U.S. EPA's Clean Power Plan, which aims to curb carbon dioxide emissions from power plants. Here, Story found potential.
She promoted the consideration of water efficiency translated into energy savings, which could help with CO2 reductions.
There also are potential efficiencies from an intelligent grid. Story touted a pilot project with electric and water service that could reduce the amount of capital in the ground tied to customer billing.
Another project involves cycling motors on and off at some water treatment facilities so power isn't used during peak times, according to Story.
The American Water CEO said there could be a step back to see where utility convergence can happen.
"What I don't want to see is for every customer's house to have three to four sets of invested capital when you could have had one or two sets," she said. "What's in the customer's best interest?"
That ties into a theme that's becoming familiar in utility discussions: the customer experience.
"The generation coming up wants what they want, how they want it, when they want it, and they want it very personalized," Story said, asking whether that's affordable to do with utility services.
Maybe not all the way, she surmised, but there needs to be consideration of rising expectations. If a customer can buy a fast-food hamburger for $1 with a credit card, Story said, that person might be having trouble understanding some aspects of the utility industry.
She said there's need for an examination of policies and procedures.Balancing costs and benefits
Tony Clark, a member of the Federal Energy Regulatory Commission, told the same Tuesday crowd that regulations need to be set "for where the world is today and where it's heading, not in respect to a world that existed" 10 or more years ago.
The business models of today may be different in three to five years, according to Michael Troiano, a vice president for the Internet of things department with AT&T Inc. He said work often begins with a conversation over expenses even as changes could bring improvements.
"I just want to make sure there's a balance between cost and benefit creation," he said, including having an open mind to new business models.
A separate Tuesday panel here focused on solar power, and Charles Cicchetti of Pacific Economics Group said a consumer doesn't have an obligation to buy power from a utility.
"And once you start thinking that way, you start to say this is all about what makes sense from the customer perspective" of people who want "to add an expensive investment to their home or small business," he said.
Cicchetti said the value of solar to the system and its effect on reliability need to be quantified before utilities introduce more extensive fees on solar customers or change rates.
Ultimately, American Water's Story said issues facing utilities aren't going away. She said state and federal regulators, staffers, companies and consumer advocates all have a responsibility to help maintain safe, reliable, sustainable and affordable services.
The CEO, whose company offers water and wastewater services, said utilities can take actions that are good for themselves as well as customers.
"The best thing we can do is as a team sit down at the table and figure out the way we can move forward in a way that benefits everybody," she said.
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