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acc am nov 18
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(ACC Mentioned) November 18 Federal Register
Nov 18, 2015 | BNA Daily Environment Report
The following entries are summaries from the November 18, 2015, Federal Register (Vol. 80, No. 222). Environmental Protection Agency - CHEMICALS: Pesticide Tolerance Exemption ... -
Requirement to Assess Alternative Chemicals Growing
Nov 18, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Companies that make toys or other products with chemicals included on a hazardous list increasingly will have to evaluate ways of making those products with substitute chemicals due to European and U.S. state regulations requiring alternative assessments, according to attorneys and consultants. -
Baby Items Tied to Infants’ Exposure to a Fire Retardant Linked to Cancer and Hormone Disruption
Nov 17, 2015 | Environmental Working Group
By Johanna Congleton
Evidence of a chemical linked to cancer and hormone disruption was found in the urine of all babies tested for a new study from Duke University. The sources, researchers say, could be nursery gliders, car sets, bassinettes and other baby products that might be treated with toxic fire retardant chemicals. -
Lumber Liquidators to Eliminate Lead, Reprocessed Plastic
Nov 18, 2015 | BNA Daily Environment Report
Lumber Liquidators has agreed to eliminate reprocessed plastic from its vinyl flooring, according to Safer Chemicals, Healthy Families, coalition of nonprofit advocacy groups. A spokesman for Lumber Liquidators told Bloomberg BNA the coalition's summary of the company's agreement was accurate. Reprocessed plastic raises... -
(ACC Mentioned) Environmentalists, Industry Seek Final Say in Highway Bill
Nov 18, 2015 | BNA Daily Environment Report
By Rachel Leven
Environmental groups want to nix Republican-backed environmental streamlining provisions—including a pilot permitting program—from a multiyear highway bill in conference this week, but it isn't clear how many conferees are ready to champion the issue. Meanwhile, the hazardous materials industry is facing a smoother... -
PHMSA Publishing Crude-by-Rail Petition Responses
Nov 18, 2015 | BNA Daily Environment Report
The Pipeline and Hazardous Materials Safety Administration will publish Nov. 18 its responses to administrative petitions about its crude-by-rail rule. The denials of several petitions on the rule (RIN 2137-AE91), which imposes new tank car, speed and classification requirements for large shipments of flammable liquids by rail, were initially released... -
Changes Sought to Colorado Well Siting Proposal
Nov 18, 2015 | BNA Daily Environment Report
By Tripp Baltz
Environmentalists and drillers in Colorado continue to disagree on whether local governments should have greater regulatory control over oil and gas activity, but they agree on one thing: The state's proposed rules (Recommendations 17 & 20) governing large-scale drilling facilities must be modified. -
BLM Advances Plan To Limit Drilling On Colo.'s Roan Plateau
Nov 17, 2015 | E&E News PM
By Scott Streater
The Bureau of Land Management today released a draft analysis of a revised management plan for Colorado's pristine Roan Plateau that would close the most sensitive areas of the plateau to future oil and gas leasing and allow only limited development on other existing leases. -
Rep. Bishop Urges BLM To Seek Industry Input On Regs
Nov 17, 2015 | E&E News PM
By Phil Taylor
House Natural Resources Chairman Rob Bishop (R-Utah) today asked the Bureau of Land Management to seek more industry input on a suite of oil and gas regulations it is updating to better measure production from federal lands. "I am deeply concerned that the BLM did not regularly engage industry stakeholders to ensure that any proposed... -
House Package, Climate Resolutions Will Move To Floor After Recess
Nov 18, 2015 | E&E Daily News
By Geof Koss and Tiffany Stecker
A key House lawmaker said yesterday that a broad energy package and disapproval resolutions targeting U.S. EPA's Clean Power Plan will come to the floor the week Congress returns after the Thanksgiving break. Rep. Ed Whitfield (R-Ky.), who chairs the Energy and Commerce Subcommittee on Energy and Power, told E&E... -
EPA Proposes More Power Plant Emissions Cuts
Nov 18, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
An Environmental Protection Agency proposal would require power plants in 23 states to achieve additional reductions in emissions of nitrogen oxides, a precursor to the formation of ground-level ozone. The proposed rule, signed Nov. 16 and released to the public Nov. 17, would update the state emissions budgets for nitrogen... -
Clean Power Plan Goal Will Be 'Far Surpassed' -- McCarthy
Nov 17, 2015 | E&E News PM
By Amanda Reilly
The United States will "far" surpass the Clean Power Plan's 2030 goal to reduce carbon dioxide emissions from the power sector by 32 percent compared to 2005 levels, U.S. EPA Administrator Gina McCarthy predicted. In a podcast released today by Columbia University's Center on Global Energy Policy, the EPA administrator defended the agency... -
EPA: ‘Clear' Right to Shield McCarthy From Deposition
Nov 18, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's right to a writ of mandamus to prevent Administrator Gina McCarthy from being deposed in a lawsuit over the impact air pollution regulations have on jobs “is clear and indisputable,” the agency told a federal appellate court (In re McCarthy, 4th Cir., No. 15-2390, brief filed 11/16/15). -
Despite Veto Promise, Senate Backs Resolutions Rejecting EPA GHG Rules
Nov 17, 2015 | InsideEPA
By Doug Obey
The Republican-led Senate has moved forward with resolutions disapproving EPA's greenhouse gas (GHG) rules for new and existing power plants, demonstrating that a majority of the chamber is opposed to the rules in an effort to bolster support for Republicans in coal states and undercut the Obama administration's... -
RGGI Stakeholders Agree on Power Plan Compliance Approach
Nov 18, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
Environmental groups and representatives from the electric power industry agreed Nov. 17 that states in the Regional Greenhouse Gas Initiative should use a mass-based approach for new and existing sources of carbon emissions to comply with the Environmental Protection Agency's Clean Power Plan. -
Majority of Senate Votes to Kill Obama Climate Rules
Nov 18, 2015 | BNA Daily Environment Report
By Anthony Adragna
More than half the Senate Nov. 17 voted to kill two regulations that are the centerpieces of President Barack Obama's efforts to combat climate change. One resolution (S.J. Res. 24), offered under the Congressional Review Act, would immediately nullify the Clean Power Plan, which regulates carbon dioxide emissions from existing power plants... -
Senate Votes To Strike Down Obama’s Climate Rules
Nov 17, 2015 | The Hill - E2 Wire
By Timothy Cama
The Senate voted Tuesday to block a pair of regulations representing the central pillars of President Obama’s climate change initiative. The votes approving resolutions under the Congressional Review Act come less than two weeks before Obama and other world leaders meet in Paris to agree to a worldwide pact to fight global warming. -
Senate Votes To Upend Centerpiece Of Obama Climate Pledge
Nov 17, 2015 | PoliticoPro
By Andrew Restuccia and Darren Goode
The Senate approved a pair of resolutions on Tuesday aimed at killing the centerpiece of President Barack Obama's climate agenda, part of a Republican-led effort to undercut the White House goal of striking a new global warming deal in Paris next month. The Senate voted to green-light two disapproval resolutions under... -
White House Warns Of Veto For Second Carbon Rule Resolution
Nov 17, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama would veto a Senate resolution designed to kill EPA's carbon rule for new and modified power plants, according to a White House Statement of Administration Policy released less than an hour before the measure is slated for a floor vote. -
EPA Wants Stronger ‘Good Neighbor’ Air Rule For States
Nov 17, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration is seeking to crack down further on air pollution that cross state borders and makes it harder for states to comply with regulations. The Environmental Protection Agency (EPA) formally proposed Tuesday to update its “good neighbor” rule to take into account nitrogen oxide emissions that affect states’ compliance...
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(ACC Mentioned) November 18 Federal Register
Nov 18, 2015 | BNA Daily Environment Report
The following entries are summaries from the November 18, 2015, Federal Register (Vol. 80, No. 222).Environmental Protection Agency
CHEMICALS
Pesticide Tolerance Exemption
Final rule of the EPA amends regulations under 40 CFR 180.960 to establish an exemption from the requirement of a tolerance for residues of 2-propenoic acid, polymer with ethenylbenzene and (1-methylethenyl)benzene with a minimum average molecular weight of 2,000 amu (CAS Reg. No. 52831-04-6) when used as an inert ingredient in a pesticide chemical formulation. The rule eliminates the need to establish a maximum permissible level for residues on food or feed commodities. The rule is issued in response to a petition by BASF Corp., of Florham Park, N.J. The rule is effective Nov. 18, 2015. Objections and hearing requests are due Jan. 19, 2016. Contact: Susan Lewis; EPA, Office of Pesticide Programs; (703-305-7090)
PESTICIDES
Certification of Pesticide Applicators
Notice of the EPA announces an extension of the comment period for an Aug. 24, 2015, proposed rule (80 FR 51356) to amend regulations under 40 CFR 171.1 through 171.311 (nonconsecutive) regarding certification of applicators of restricted use pesticides (RUPs). The rule clarifies and expands private applicator competency standards; adds categories for aerial application, soil fumigation and nonsoil fumigation; and requires commercial and private applicators who apply pesticides aerially or by fumigation to demonstrate competency for such categories. The rule also requires commercial and private applicators to demonstrate continued competency to use RUPs every three years by passing written exams for each certification they hold or by completing specific training in a continuing education program administered by the certifying authority. In addition, the rule adds new standards for noncertified applicators working under the direct supervision of a certified applicator and requires commercial applicators, private applicators and noncertified applicators using RUPs under the direction supervision of certified applicators to be at least 18 years old. Finally, the rule establishes three options for certification of applicators in Indian country and updates requirements for submission, approval and maintenance of state, tribal and federal agency certification plans. Comments now are due Dec. 23, 2015. Contact: Michelle Arling; EPA, Office of Pesticide Programs; (703-308-5891)
PESTICIDES
Pesticide Tolerances/Flutriafol
Final rule of the EPA amends regulations under 40 CFR 180.629 to establish tolerances for residues of the fungicide flutriafol in or on dried hop cones at 20 parts per million. The rule is issued in response to a petition filed by Cheminova Inc., of Arlington, Va. The rule is effective Nov. 18, 2015. Objections and hearing requests are due Jan. 19, 2016. Contact: Susan Lewis; EPA, Office of Pesticide Programs; (703-305-7090)
Federal Transit Administration
ENVIRONMENTAL IMPACT ASSESSMENT
California/Green Line Sacramento International Airport Project
Notice announces the intention of the Federal Transit Administration, in conjunction with the Sacramento Regional Transit District, to prepare an environmental impact statement for the proposed Green Line to the Airport Project in Sacramento County, Calif. The project involves the extension of the existing Green Line light rail service from the existing terminus of the Green Line in Sacramento to the Sacramento International Airport. The notice specifies that the EIS will evaluate alternatives to the proposed action, including a no build alternative and possible minimum operable segments. Meeting are scheduled for Dec. 1, 2 and 3, 2015, in Sacramento. Comments are due Jan. 15, 2016. Contact: Jeff Damon; FTA; (415-744-2590)
Fish and Wildlife Service
ENVIRONMENTAL IMPACT ASSESSMENT
California/Western Butte County Conservation Plan
Notice of the Fish and Wildlife Service announces the availability an environmental impact statement for the habitat conservation plan/natural community conservation plan for Western Butte County, Calif. The notice also announces the receipt of an application from 11 involved parties for a 50-year incidental take permits for 39 covered species under the Endangered Species Act. Meetings are scheduled for Jan. 25, 2016, in Chico and Jan. 26, 2016, in Oroville and Gridley, Calif. Comments are due Feb. 16, 2016. Contact: Mike Thomas; USFWS, Sacramento Fish and Wildlife Office; (916-414-6600)
Nuclear Regulatory Commission
ENVIRONMENTAL IMPACT ASSESSMENT
Missouri/Discovery Ridge Radioisotope Production Facility
Notice announces the intention of the Nuclear Regulatory Commission to prepare an environmental impact statement for Northwest Medical Isotopes LLC's application for a construction permit for a radioisotope production facility at the Discovery Ridge Research Park in Columbia, Mo. The notice specifics that the construction will include space for operational activities related to special nuclear material regulated under 10 CFR 70. A meeting is scheduled for Dec. 8, 2015, in Columbia. Comments are due Jan. 4, 2016. Contact: Nancy Martinez; NRC, Office of Nuclear Reactor Regulation; (301-415-2719)
RADIATION
List of Approved Spent Fuel Storage Casks
Proposed rule of the Nuclear Regulatory Commission amends regulations under 10 CFR 72.214 to revise the NAC International Inc. MAGNASTOR® Cask System listing in the list of approved spent fuel storage casks to include Revision 1 to Amendment Nos. 0, 1, 2 and 3 to Certificate of Compliance No. 1031. The amendment revises the Technical Specifications (TSs) to modify the decay times in Tables B2-4 and B2-5 in Appendix B of the TSs for minimum decay time required for spent fuel assemblies that contain nonfuel hardware and to correct a typographical error in two actual boron loadings in TS 4.1.1(a). A concurrent direct final rule adopts the revision, effective Feb. 1, 2016. Comments are due Dec. 18, 2015. Contact: Solomon Sahle; NRC, Office of Nuclear Material Safety and Safeguards; (301-415-3781)
RADIATION
List of Approved Spent Fuel Storage Casks
Direct final rule of the Nuclear Regulatory Commission amends regulations under 10 CFR 72.214 to revise the NAC International Inc. MAGNASTOR® Cask System listing in the list of approved spent fuel storage casks to include Revision 1 to Amendment Nos. 0, 1, 2 and 3 to Certificate of Compliance No. 1031. The amendment revises the Technical Specifications (TSs) to modify the decay times in Tables B2-4 and B2-5 in Appendix B of the TSs for minimum decay time required for spent fuel assemblies that contain nonfuel hardware and to correct a typographical error in two actual boron loadings in TS 4.1.1(a). The rule is effective Feb. 1, 2016, if no adverse comments are received by Dec. 18, 2015. Contact: Solomon Sahle; NRC, Office of Nuclear Material Safety and Safeguards; (301-415-3781)
Office of Energy Efficiency and Renewable Energy
ENERGY EFFICIENCY
External Power Supply Energy Conservation Standards Exemption
Proposed rule of the Department of Energy, Office of Energy Efficiency and Renewable Energy, amends regulations under 10 CFR 429.37 and 430.32 to exempt from energy conservation standards certain external power supplies (EPSs) made available by manufacturers as service or spare parts for end-use consumer products. The rule exempts qualifying EPSs that are manufactured between Feb. 10, 2016, and Feb. 10, 2020; marked in accordance with the External Power Supply International Efficiency Marking Protocol; compliant with applicable standards for Class A EPSs and certified to the department as meeting at least International Efficiency Level IV; and made available by the manufacturer as a service or spare part for an end-use product manufactured before Feb. 10, 2016. The rule also requires annual reports of the total number of exempt EPS units sold as service and spare parts that do not meet the relevant energy conservation standards. Comments are due Dec. 18, 2015. Contact: Jeremy Dommu; DOE, Office of Energy Efficiency and Renewable Energy; (202-586-9870)
Department of Homeland Security
CHEMICALS
Chemical Security Assessment Tool
Notice announces the intention of the Department of Homeland Security, National Protection and Programs Directorate, to seek OMB approval for a revised information collection request regarding the Chemical Security Assessment Tool (CSAT). The CSAT is used to identify high-risk chemical facilities under the chemical facility anti-terrorism standards (CFATS) under 6 CFR 27. The revised collection adds questions to the CSAT Top-Screen application to assist respondents in identifying security issues for chemicals of interest. Comments are due Jan. 19, 2016. Contact: DHS, Privacy Office; (202-343-1717)
Chemical Safety and Hazard Investigation Board
CHEMICALS
Chemical Safety and Hazard Investigation Board Meeting
Notice of the Chemical Safety and Hazard Investigation Board announces changes to the agenda for a meeting (80 FR 69635; 11/10/2015) to discuss investigations and operational activities through the end of the calendar year and to provide an update on board audits conducted by the EPA inspector general. The revised agenda adds discussion about future public meetings about worker fatigue and process safety management. The revised agenda also includes a staff presentation and board vote on a recommendation to the BP Global Executive Board of Directors to implement an incident reporting program. The meeting is scheduled for Nov. 23, 2015, in Washington, D.C. Contact: Amy McCormick; CSB; (202-261-7630)
Pipeline and Hazardous Materials Safety Administration
HAZARDOUS MATERIALS TRANSPORTATION
Enhanced Tank Car Standards/High-Hazard Flammable Trains
Notice of the Pipeline and Hazardous Materials Safety Administration announces the agency's response to five administrative appeals of a May 8, 2015, final rule (80 FR 26643) that amended regulations under 49 CFR 171.7, 171.8, 172.820, 173.41, 173.241, 173.242, 173.243, 174.310, and 179.200 through 179.202-13 (nonconsecutive) regarding the transportation of hazardous materials by rail. The rule establishes new operational requirements regarding speed restrictions, braking systems and routing for certain trains transporting large volumes of Class 3 flammable liquids. The rule also updates tank car standards, establishes a sampling and classification program that requires offerors to ensure proper classification and characterization of unrefined petroleum-based products, and adds notification requirements. The appeals were submitted by the Dangerous Goods Advisory Council; the American Chemistry Council; the Association of American Railroads; the American Fuel & Petrochemical Manufacturers; and jointly the Umatilla, Yakama, Warm Springs, and Nez Perce tribes and the Quinault Indian Nation. The current action is dated Nov. 18, 2015. Contact: Ben Supko; PHMSA, Standards and Rulemaking Division; (202-366-8553)
U.S. Coast Guard
WATER TRANSPORTATION
Gulf of Mexico OCS Safety Zone/Titan SPAR Oil and Gas Facility
Final rule of the Coast Guard adopts regulations under 33 CFR 147.865 to establish a 500-meter safety zone around the Bennu Oil and Gas Titan SPAR system, located in Mississippi Canyon Block 941 on the outer continental shelf (OCS) in the Gulf of Mexico. The rule specifies that the safety zone is intended to reduce the threat of allisions, collisions, security breaches, oil spills or releases of natural gas due to vessels operating outside the normal shipping channels and fairways. The rule is effective Dec. 18, 2015. Contact: Rusty Wright; Coast Guard, District Eight Waterways Management Branch; (504-671-2138)
WATER TRANSPORTATION
Gulf of Mexico OCS Safety Zone/Turritella FPSO System
Final rule of the Coast Guard adopts regulations under 33 CFR 147.863 to establish a 500-meter safety zone around the Turritella floating production storage offloading (FPSO) vessel system, which is a ship-shaped offshore production facility that stores crude oil in its hull and is located in Walker Ridge 551 on the outer continental shelf (OCS) in the Gulf of Mexico. The rule specifies that the safety zone is intended to reduce the threat of allisions, collisions, security breaches, oil spills or releases of natural gas due to vessels operating outside the normal shipping channels and fairways. The rule is effective Dec. 18, 2015. Contact: Rusty Wright; Coast Guard, District Eight Waterways Management Branch; (504-671-2138)
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Requirement to Assess Alternative Chemicals Growing
Nov 18, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Companies that make toys or other products with chemicals included on a hazardous list increasingly will have to evaluate ways of making those products with substitute chemicals due to European and U.S. state regulations requiring alternative assessments, according to attorneys and consultants.
A growing number of U.S. states and the European Union are requiring alternative assessments of chemicals deemed to pose some kind of hazard, said Lawrence Culleen, an attorney with Arnold & Porter LLP. He spoke during a Nov. 17 webinar, Distributing Products Globally: Tips for Thriving in the Complicated Regulatory Landscape, held by Arnold & Porter and Ramboll Environ Inc., a consulting company.
The trend means companies must be aware of how to conduct an alternative assessment and keep in mind that a failure to do one well can have almost as many negative consequences as a failure to do one at all, Culleen said.
He and other speakers mentioned as possible negative consequences liability and the potential that regulators will restrict uses of a chemical or manufactured product.
Tom Fox, an attorney practicing in the law firm's London office, said tailoring an alternative assessment to meet the requirements in one jurisdiction, such as for a U.S. state regulation, might address the needs of another jurisdiction or raise additional questions in, for example, Europe. The international context in which a company does business needs to be kept in mind, he said.
Diverse Approaches, Manipulated Choices
Culleen said there is no common definition of what constitutes an alternative assessment.
The general idea, however, is that a company or other organization identifies and compares various chemicals or chemical mixtures for which concerns have been identified, he said.
Universities, government agencies and private sector organizations have developed alternative assessment methodologies, Culleen said.
The various approaches may identify the same hazard differently depending on the “weight,” or concern level, placed on a particular hazard, said Robert DeMott, a toxicologist working with Ramboll Environ.
“Regulatory programs intend to manipulate your choices,” he said.
Requirements, Trends
Peggy Otum, who practices law in Arnold & Porter's San Francisco office, said California is leading states across the U.S. in its requirements for alternative assessments. She referred to the assessments mandated under California's Safer Consumer Product Regulations (188 DEN A-18, 9/29/15).
The assessment may identify a substitute chemical, point to a new way to redesign the product to eliminate or reduce the chemical of concern or underscore that no substitution is currently feasible, she said.
The EU already requires alternative assessments under REACH (Regulation No. 1907/2006 on the registration, evaluation, authorization and restriction of chemicals), Culleen said.
Fox said REACH is part of the broader EU Environment Action Program to 2020, which calls for a “non-toxic environment” in which risks associated with chemicals, especially those that interfere with the endocrine system, have been addressed and more sustainable substitutes have been developed.
Culleen said the concept of alternative assessments, if not the precise term, also is included in both House and Senate legislation designed to modernize the U.S. Toxic Substances Control Act. The House approved its TSCA Modernization Act (H.R. 2576) in June by a 398–1 vote. The Senate's Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), however, has been unable to reach the floor for a vote due to an unrelated environmental issue (218 DEN A-1, 11/12/15).
Despite the many different types of assessments being conducted and hazards being focused on, DeMott said there are some trends in the analyses being required.
Regulators are focusing on hazard, the intrinsic characteristic of a chemical independent of how the chemical is used or whether anyone is exposed to it, he said. Hazard is different from risk, which is what people might experience if they are exposed to a hazardous substance, DeMott said.
Regulators also increasingly want companies to prove their chemical or their particular use of a chemical is safe, and their definition of what constitutes safe is a “moving target,” DeMott said.
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Baby Items Tied to Infants’ Exposure to a Fire Retardant Linked to Cancer and Hormone Disruption
Nov 17, 2015 | Environmental Working Group
By Johanna Congleton
Evidence of a chemical linked to cancer and hormone disruption was found in the urine of all babies tested for a new study from Duke University. The sources, researchers say, could be nursery gliders, car sets, bassinettes and other baby products that might be treated with toxic fire retardant chemicals. The remains of a second chemical also linked to endocrine disruption were found in 93 percent of the infants tested.
The chemicals are TDCIPP (tris(1,3-dichloro-isopropyl)phosphate) and TPHP (triphenyl phosphate). Four years ago, Duke researchers found TDCIPP in 36 percent of the baby products they tested that were purchased between 2000 and 2010. In the new study, the same research group tested the urine collected from 43 babies for evidence of TDCIPP and TPHP, and the results were alarming.
Each of the babies tested had detectable levels of a chemical produced when the body processes TDCIPP, known as a metabolite. A metabolite of TPHP was detected in all but three infants.
Adding to the concern, more infants in this study had extreme levels of the TDCIPP metabolite in their urine, compared to toddlers tested in a separate study conducted last year by Duke and EWG. What's more, the levels of both chemicals were on average higher than amounts previously found in adults.
The State of California lists TDCIPP as a known carcinogen and the U.S. Consumer Product Safety Commission considers it a probable human carcinogen. It may also disrupt endocrine signaling – the chemical messages hormones send throughout the body – which is vital during the early stages of a baby's development. TPHP is also linked to hormone disruption that may cause developmental or reproductive harm.
In the new study, the level of the TDCIPP metabolite in the babies' urine was closely related to the number of infant products their parents owned. Babies whose parents reported owning more than 16 such products had on average almost seven times more of the metabolite in their urine than babies in families who owned fewer than 13 products. Children who attended daycare centers also had higher levels of the metabolite, suggesting that products there added to their exposure.
This study is not intended to be a warning to parents to avoid buying the things needed to keep their babies safe and comfortable. However, it does mean parents should consider doing their homework before shopping. Not all baby items have added fire retardants, and parents can choose items free of these chemicals.
Read this Guide to Fire Retardants in Children's Products to learn what you need to know to minimize your family's exposure to these toxic chemicals.
But smarter shopping may not be enough. The United States' weak and outdated regulations fail to adequately protect babies or others who are most vulnerable from the effects of toxic chemicals. The system needs reform, so that parents can be confident that the products they buy for their newborns are safe. To learn more, visit EWG’s website on the Toxic Substances Control Act.
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Lumber Liquidators to Eliminate Lead, Reprocessed Plastic
Nov 18, 2015 | BNA Daily Environment Report
Lumber Liquidators has agreed to eliminate reprocessed plastic from its vinyl flooring, according to Safer Chemicals, Healthy Families, coalition of nonprofit advocacy groups. A spokesman for Lumber Liquidators told Bloomberg BNA the coalition's summary of the company's agreement was accurate. Reprocessed plastic raises health concerns because it can contain wires, cables and other materials with lead, cadmium, brominated flame retardants and phthalates, the coalition said. Lumber Liquidators also will limit lead in flooring to less then 100 parts per million and have a Consumer Product Safety Commission-certified lab regularly test compliance with the company's new policies, Safer Chemicals said. “We are pleased to work with Safer Chemicals, Healthy Families on this initiative, as part of our ongoing efforts to lead the industry forward with responsible sourcing practices,” said Jill Witter, chief compliance and legal officer of Lumber Liquidators, in a statement circulated by the coalition. The new flooring standards will be phased in over the next year, the coalition said. In October, Lumber Liquidators agreed to pay nearly $13.2 million in penalties following a federal investigation over the use of illegal timber in its imported flooring. It also is also being investigated following claims that its flooring contained dangerously high levels of formaldehyde (214 DEN A-8, 11/5/15)(10 WCR 934, 11/13/15)(16 CLASS 1202, 11/13/15)(30 TXLR 1092, 11/12/15)(43 PSLR 1281, 11/9/15)(32 ITR 1912, 11/5/15)(61 CARE 61, 11/4/15)(213 International Trade Daily, 11/4/15)(See previous story, 11/04/15).
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(ACC Mentioned) Environmentalists, Industry Seek Final Say in Highway Bill
Nov 18, 2015 | BNA Daily Environment Report
By Rachel Leven
Environmental groups want to nix Republican-backed environmental streamlining provisions—including a pilot permitting program—from a multiyear highway bill in conference this week, but it isn't clear how many conferees are ready to champion the issue.
Meanwhile, the hazardous materials industry is facing a smoother path to achieving sought-after policy changes, such as alterations to the Transportation Department's crude-by-rail rule. Other interested groups are also continuing to lobby for changes—such as water infrastructure funding measures—to the long-awaited multiyear surface transportation bill.
“I hope we end up with a law that moves us forward instead of backward,” Deron Lovaas, state and federal policy practice director for urban solutions at the Natural Resources Defense Council, told Bloomberg BNA. “Based on what's on the table now, that's a long shot.”
The House and Senate are set to go to conference on the bill, with 41 total conferees announced across both chambers. The group is vying to meet a Nov. 20 deadline when a short-term transportation patch that includes authorization for hazmat transport programs expires.
That deadline will probably be pushed back, as the House passed by a voice vote Nov. 16 a short-term extension (H.R. 3996) through Dec. 4. That bill will now be sent to the Senate.
The first public meeting of the conference on the House versus Senate multiyear bills will occur on Nov. 18.
Environmental Reviews
Several environmental groups are most concerned with National Environmental Policy Act environmental permit and review streamlining provisions within both bills (214 DEN A-14, 11/5/15).
The Senate bill (H.R. 22) that was passed in July included the U.S. Chamber of Commerce-supported Federal Permitting Improvement Act (S. 280), authored by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Mo.). S. 280 would require coordination by the various agencies reviewing a given major infrastructure, energy or manufacturing project and significantly limit the amount of time allowed for opponents of a project to challenge a decision for a permit.
Meanwhile, the House bill—also referred to as H.R. 22 after adopting the base Senate language—incorporated the Senate's S. 280 language, and then added an amendment to further overhaul the policy act. The amendment offered by Rep. Tom Marino (R-Pa.) and House Judiciary Committee Chairman Bob Goodlatte (R-Va.) was approved by a voice vote in the House and made changes to the S. 280 language, such as making it harder for deadlines related to permitting to be extended by agencies. Some of these changes were in line with the House's RAPID Act (H.R. 348) (216 DEN A-4, 11/9/15).
The House bill also includes language based on what conferee Rep. Jeff Denham (R-Calif.) initially introduced in the House as the NEPA Reciprocity Act (H.R. 2497), which would allow the transportation secretary to certify for rail and highway projects that a state's environmental review process satisfies the federal NEPA process. Denham's bill, which essentially appears as a pilot program, was initially co-sponsored by at least two other conferees—Blake Farenthold (R-Texas) and Cresent Hardy (R-Nev.)—and is supported by the National Association of Counties. But it was opposed by Rep. Raul Grijalva (D-Ariz.) and certain other Democrats.
Members of the League of Conservation Voters, Earthjustice and the NRDC noted process and substantive concerns with these provisions as they move into conference, labeling it their top measure or set of measures to nix or at least reduce severity of during conference. Lovaas said he hopes that the nontransportation focused provisions are taken out and emphasized that while the Senate language “is problematic, it doesn't compare to the House version.”
The Transportation Department also has come out against several environmental streamlining provisions in both bills. For example, Transportation Secretary Anthony Foxx opposed several provisions in a Nov. 13 letter to House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.), including the pilot program based on Denham's H.R. 2497.
The U.S. Chamber of Commerce has in the past expressed support for S. 280, calling it similar to H.R. 348, saying in a May statement that “[c]ommonsense reforms to the permitting process would ensure that the environment is protected while giving businesses greater certainty and confidence to invest in job-creating projects.” The chamber declined to comment for this article.
Potential Champions
Lovaas pointed to Sen. Barbara Boxer (D-Calif.), ranking member of the Senate Environment and Public Works Committee, as a potential champion for the environmentalists' side of the issue, saying she and Committee Chairman Jim Inhofe (R-Okla.) work well together.
However, when asked by Bloomberg BNA if eliminating the environmental streamlining provisions would be a top priority for her in conference, Boxer said “Well, streamlining—that's not a danger to the environment.”
“But if they're trying to overturn laws, environmental laws, I won't allow that,” Boxer told Bloomberg BNA. She added, “I don't see any bumps in the road at this point on that front.”
Zach Drennen, a legislative associate for the League of Conservation Voters, told Bloomberg BNA that on the House side it was “too bad” that Grijalva, who had worked to exclude these provisions in the House, wasn't included as a conferee; however, he said there are still a number of other “environmental champions” among the conferees.
“We are confident that they are aware of this provision and working to take it out,” Drennen said of some of the House conferees.
Reaching out to each conferee's office and a review of recent news releases didn't reveal many staunch advocates of rejecting these provisions, although some, like Rep. Jerrold Nadler (D-N.Y.), do note their opposition to anti-environmental provisions of the bill. However, this is far from the full picture.
For example, Sen. Ron Wyden (D-Ore.), who is a conferee, told Bloomberg BNA that he is aware and “very focused on” these provisions. But he said he wouldn't hazard a guess at whether it would or wouldn't be included in the final bill.
Meanwhile, several Republicans and some Democrats in both chambers have publicly touted support for the provisions to cut the red tape behind permitting. For example, Reps. Bob Gibbs (R-Ohio) and Elijah Cummings (D-Md.), both conferees, also told Bloomberg BNA that they support environmental streamlining provisions from the House bill.
Senate Commerce, Science and Transportation Committee Chairman and conferee John Thune (R-S.D.) told reporters that he is interested in those provisions.
“My guess is that—hopefully—the final bill will have some streamlining in it,” Thune said, adding that the provisions would “probably” look more like the Senate bill version.
Marty Hayden, vice president of policy and legislation for Earthjustice, said the odds of getting these provisions that have “no business in the highway bill” out are unknown.
“Conferences are always a challenge, but you never know what can happen until you try,” Hayden said.
Crude-by-Rail
Meanwhile, a number of crude-by-rail provisions that appear in the House and the Senate bills—many aiming to address the Pipeline and Hazardous Materials Safety Administration's rule finalized earlier this year to regulate large shipments of crude oil and other flammables by rail—have open proponents among the conferees.
Even a cursory review of conferees reveals several champions for the issue. Rep. Corrine Brown (D-Fla.) has expressed support for emergency responder notification requirements, Reps. Lou Barletta (R-Pa.) and Rick Larsen (D-Wash.) have noted support for additional “top fittings” requirements, and Sen. Dick Durbin (D-Ill.) has highlighted support for comprehensive oil spill response requirements.
In October, House Subcommittee on Railroads, Pipelines and Hazardous Materials Chairman Denham praised at the House markup the crude-by-rail provisions within the House bill, saying the measure would “significantly strengthen the safety of crude-by-rail shipments.”
Some of the crude-by-rail provisions aren't touted as loudly, such as provisions requiring the Transportation Department to reconsider electronically controlled pneumatic brake requirements in the final crude-by-rail rule that are opposed by oil groups and railroads, but are included in both bills. Inclusion in both bills is a signal the provision will probably be included in the final bill.
The Transportation Department is still hoping, according to Foxx's Nov. 13 letter, that some of these provisions will be taken out. For example, Foxx pointed to the brake provisions included in the House and the Senate bills as “new obstacles” to improving the safety of crude-by-rail transportation.
The provisions on brakes has the backing of Thune, who called the provisions “reasonable,” and hasn't been identified as a key priority for many conferees.
Industry seemed largely on board with these provisions. While Ed Greenberg, Association of American Railroads spokesman, declined to comment on the pending legislation, Sabrina Fang, American Petroleum Institute spokeswoman, said the oil group is “encouraged by the attention being given to enhancing the safety of rail transportation.”
Scott Openshaw, American Chemistry Council spokesman, told Bloomberg BNA in an e-mail the trade association supports the recently passed House highway bill's approach to “fixing the flammable tank car rule.” He specifically emphasized support for a provision in the House bill that would prioritize retrofitting and use of new tank cars for oil and ethanol unit trains.
“We'll be working to ensure this provision remains intact and is a part of the final package,” Openshaw said.
Other Provisions
When it comes to the rest of hazardous materials, Cynthia Hilton, co-facilitator for the Interested Parties for Hazardous Materials Transportation, said the stage seems largely set. The Senate and House bills already have been broadly similar for many hazmat issues—for example, both declining to include an administration requested user fee for hazmat programs—and the differences they do have probably aren't controversial, she said.
The area where there “might be a wrinkle” is first responder grant reforms, Hilton said, noting the potential for increased fees to pay for these changes. Industry also will be looking to ensure there is accountability for these grants as well, to make sure the grant funds are used “efficiently and effectively” and that there is proof of it, she said.
And other groups—environmental and others alike—are working to ensure their own interests are in or out of the bill.
For example, the American Water Works Association, Association of Metropolitan Water Agencies and three other water groups sent a letter Nov. 9 to the chairmen and ranking members of the Senate Environment and Public Works and the House Transportation and Infrastructure committees urging them to include an alteration to the Water Infrastructure Finance and Innovation Act that would allow communities to use these loans and tax-exempt debt to finance water infrastructure.
The provision that is included in the Senate bill, but not the House version, is a priority for Gibbs, chairman of the House Subcommittee on Water Resources and Environment, to get included in the final bill, he told Bloomberg BNA.
Additionally, Drennen said the League of Conservation Voters is continuing to work to keep out some of the most problematic amendments out of the bill during conference, such as those identified in a Nov. 4 letter from the League and nine other environmental groups to House members.
At the end of the day, the importance of what comes out of conference, especially for environmental provisions, is that provisions within the bill could be difficult to reverse. Hayden emphasized this concern to Bloomberg BNA regarding environmental review provisions.
“Were this to become law,” Hayden said, “I think it would take a better Congress to rescind it.”
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PHMSA Publishing Crude-by-Rail Petition Responses
Nov 18, 2015 | BNA Daily Environment Report
The Pipeline and Hazardous Materials Safety Administration will publish Nov. 18 its responses to administrative petitions about its crude-by-rail rule. The denials of several petitions on the rule (RIN 2137-AE91), which imposes new tank car, speed and classification requirements for large shipments of flammable liquids by rail, were initially released Nov. 9 (217 DEN A-9, 11/10/15). The administrative petitions addressed issues ranging from tank car requirements to the scope of the rule. Now the appropriate venue for challenges against the rule will be in court. Congress, however, may also take action to amend the rule through its upcoming highway bill, set to be finalized by Dec. 4. The Transportation Department has opposed some provisions of that bill. The public inspection notice for the petitions' response is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-28774.pdf.
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Changes Sought to Colorado Well Siting Proposal
Nov 18, 2015 | BNA Daily Environment Report
By Tripp Baltz
Environmentalists and drillers in Colorado continue to disagree on whether local governments should have greater regulatory control over oil and gas activity, but they agree on one thing: The state's proposed rules (Recommendations 17 & 20) governing large-scale drilling facilities must be modified.
Representatives of oil and gas operators, environmental groups, community organizations and other stakeholders testified Nov. 16 and 17 at a hearing on proposed Colorado Oil and Gas Conservation Commission regulations on the siting and planning of such facilities. Several witnesses urged the commission to make substantive changes to the proposed rules.
The rules “must be modified to uphold the intent, meaning and integrity” of recommendations by a special Task Force on State and Local Regulation of Oil and Gas Operations convened by Gov. John Hickenlooper (D), according to Dan Haley, president and CEO of the Colorado Oil and Gas Association. He spoke Nov. 17 during the hearing.
The commission is likely to rule on the proposed regulations at its next meeting Dec. 7 and 8.
“If Recommendations 17 and 20 were written the same as the draft rules before you, the industry representatives and maybe even a few non-industry members would not have voted in favor of the recommendations, and as such [they] would not have passed out of the Task Force,” Haley said.
‘Decommission' the Commission
Meanwhile, an environmental group, 350 Colorado, called for the “decommissioning of the COGCC” given the “failure of the proposed rules” to fulfill the intended purpose of the task force, which is to address conflicts between local and state regulation of oil and gas development and to consider the “scale, proximity and intensity” of large-scale operations near urban and suburban areas.
In recent years, Colorado has experienced a boom in drilling and related oil and gas activity in part due to technological advances in extracting oil and natural gas from tight shale formations, among them the use of hydraulic fracturing, or fracking, and horizontal drilling. Fracking is the high-pressure, high-volume injection of water, sand and chemicals deep underground to release trapped hydrocarbon resources.
Recommendation No. 17 outlines a consultation process to facilitate a dialogue between operators and local governments when an operator proposes to locate a large oil and gas facility in an Urban Mitigation Area, defined in Commission rules as an area with 22 building units in a 1,000-foot radius.
Community Planning
Recommendation No. 20 encourages local governments to integrate future oil and gas development into community planning and oil and gas operators to consider community planning in proposing future development. The governor's task force unanimously approved Recommendations Nos. 17 and 20 in February.
Representatives from three industry groups—the Colorado Oil and Gas Association, the Colorado Petroleum Association and the Colorado Petroleum Council, which is the local chapter of the American Petroleum Institute—said the commission's proposed rules go beyond the task force recommendations, and they presented an alternative.
The commission proposes to define large-scale oil and gas facilities in an urban mitigation area as those having 90,000 total feet of wellbore length or total onsite hydrocarbon storage capacity of 4,000 barrels. The industry alternative recommends using total well count as the chief criterion for defining a large-scale facility.
Jamie Jost, managing partner in Burleson LLP's Denver office, representing the industry groups at the hearing, said well count provides a “clear, concise and consistent way of determining whether a project” is a large-scale facility.
Industry Presents Alternative
Oil and gas producers also complained the commission proposal includes a requirement on operators to provide notification to adjacent local government jurisdictions and allow them to act in a “consulting agency” role if the proposed municipal development is within 1,000 feet of a proposed large-scale oil and gas facility. Allowance of such a local land use process interferes with the state process of permitting drilling.
Industry representative also took issue with the proposal's limitation on the allowed duration of drilling, completion and stimulation operations.
Environmental groups also disagreed with the approach taken by the proposal.
“We find that the proposed rules contain far too many flaws, failures, and harmful concepts to serve or advance the public interest, and therefore, we request that the rules be withdrawn and tabled, to avoid further harm to local democracy, public health and safety, and to the climate,” 350 Colorado said in a statement.
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BLM Advances Plan To Limit Drilling On Colo.'s Roan Plateau
Nov 17, 2015 | E&E News PM
By Scott Streater
The Bureau of Land Management today released a draft analysis of a revised management plan for Colorado's pristine Roan Plateau that would close the most sensitive areas of the plateau to future oil and gas leasing and allow only limited development on other existing leases.
The draft supplemental environmental impact statement (EIS) essentially follows many of the terms agreed to by the Interior Department and the industry in a legal settlement with a coalition of conservation groups. They had sued BLM in 2008 challenging the agency's environmental review and subsequent approval of 19 drilling leases atop the plateau.
Terms of the November 2014 settlement included BLM conducting a supplement to the EIS for the Roan Plateau resource management plan to address issues raised by a federal judge's order in 2012, and to consider other management alternatives that would protect the sensitive plateau. It's considered one of Colorado's most ecologically diverse landscapes and home to elk, mule deer and native cutthroat trout.
BLM's preferred alternative outlined in the two-volume draft supplemental EIS would essentially codify many of the terms of the settlement into agency management policy, including closing the top of the plateau, where 17 of the 19 hotly contested leases were withdrawn as part of the legal settlement.
The draft document also includes a "more robust" analysis of air quality impacts of drilling in the region, which the conservation groups had insisted upon, as well as an analysis of a less invasive drilling alternative that would require directional drilling from private lands or areas below the top of the plateau.
As part of the agreement to cancel the 17 oil and gas leases atop the plateau, BLM refunded about $47.6 million in bonus bids and annual rental payments to leaseholders, including Denver-based Bill Barrett Corp.
The preferred alternative in the draft supplemental EIS would allow Bill Barrett to develop two remaining leases atop the plateau. Three other leaseholders -- WPX Energy Rocky Mountain LLC, OXY USA Inc. and Ursa Piceance Holdings LLC -- would be allowed to develop 12 leases at the base of the plateau, said David Boyd, a BLM spokesman in Silt, Colo.
"For many years, the Roan Plateau was a symbol of conflict in the American West," BLM Director Neil Kornze said today in a statement. "We are fortunate that a visionary group of local, state and industry leaders, as well as sportsmen and conservationists, came together to create a new path for the future of the Roan Plateau. This draft document moves that vision forward and protects some of the state's most important fish and wildlife habitat while also allowing for oil and gas development in places where it makes sense."
The draft supplemental EIS will be published in the Federal Register on Friday, kicking off a 90-day public comment period ending Feb. 18.
Environmentalists have long argued that drilling atop the Roan Plateau and the sensitive areas at the base of the flat-topped mountain could have devastating consequences to wildlife. Sporting groups are particularly worried that drilling activities would sever migratory routes for mule deer to move between the Roan Plateau and the Piceance Basin to the north.
The coalition of 10 environmental groups -- including Trout Unlimited, the Colorado Environmental Coalition, the Wilderness Society and the National Wildlife Federation -- maintained in their lawsuit that BLM's leasing approval was based on a faulty environmental review that did not consider more protective alternatives for managing the plateau. They also argued that BLM improperly considered drilling impacts from only about 210 wells, not the thousands of wells Bill Barrett has proposed to drill atop the plateau.
U.S. District Judge Marcia Krieger in Denver agreed, directing BLM in a 2012 order to go back to the drawing board and review its Roan Plateau drilling plan, formally adopted in June 2007 (EnergyWire, June 25, 2012).
The announcement by Interior Secretary Sally Jewell last year that a settlement had been reached ended six years of litigation to protect the Roan Plateau, which rises thousands of feet above a pristine valley near the town of Rifle, Colo. (E&ENews PM, Nov. 21, 2014).
BLM announced in January that it had formally withdrawn the 17 contested leases.
BLM Colorado State Director Ruth Welch said in a statement that the draft document "represents another important step in the BLM's fulfillment of its commitments under the Roan settlement."
The draft supplemental EIS drew praise from conservation groups, including some groups involved in the original lawsuit against BLM.
"This keeps us moving toward a balanced, fair solution to protecting the Roan Plateau," said David Nickum, executive director of Colorado Trout Unlimited. "We're hopeful that the final management plan will preserve last year's settlement, which protects the Roan's best hunting and fishing habitat while allowing careful, responsible development of its energy reserves. Done right, we can meet both goals."
Nada Culver, senior director for agency policy with the Wilderness Society, said the legal settlement with BLM was a "potential model" for how other communities in the West could deal with contentious land-use issues.
"Part of what that model relies on is the BLM implementing the agreement and building long-term plans to protect the Roan," Culver said. "This draft plan carries this work forward, and we thank the BLM here in Colorado for continuing to support the efforts of all the parties that came up with this joint vision."
But it also drew support from Denver-based Western Energy Alliance, an oil and gas industry trade group representing more than 400 energy companies that account for nearly a quarter of the nation's natural gas and 21 percent of its oil production.
Kathleen Sgamma, the alliance's vice president of government and public affairs, said the proposals in the draft EIS provide some certainty for the industry as to what will be allowed in the plateau region.
"We're glad to see BLM is moving forward with the EIS in accord with the settlement agreement with interested companies and local and state officials," Sgamma said in an email. "Since Congress mandated natural gas development on the Roan Plateau in the late 1990s, there has been too much uncertainty and delay. We're happy to see BLM is making tangible progress."
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Rep. Bishop Urges BLM To Seek Industry Input On Regs
Nov 17, 2015 | E&E News PM
By Phil Taylor
House Natural Resources Chairman Rob Bishop (R-Utah) today asked the Bureau of Land Management to seek more industry input on a suite of oil and gas regulations it is updating to better measure production from federal lands.
"I am deeply concerned that the BLM did not regularly engage industry stakeholders to ensure that any proposed rule would encompass industry's concerns," Bishop wrote in a letter to BLM Director Neil Kornze.
Bishop's letter addresses BLM's proposed rules updating Onshore Orders 3, 4 and 5, which the agency has rolled out individually beginning in July. They would designate "facility measurement points" to prevent the "theft and loss" of revenue from production on federal lands and would also update standards for how companies measure the oil and gas they produce.
All three proposals seek to ensure that taxpayers receive fair compensation for the development of federal minerals. The public comment period for Order 3 ended Oct. 9, while those for Orders 4 and 5 close Nov. 30 and Dec. 14, respectively.
Bishop said BLM has failed to adequately reach out to interested stakeholders. By releasing the rules individually, he said, stakeholders were prevented from considering "the interplay between the onshore orders."
"Without the necessary input from interested parties, the proposed rules could hamper production on federal lands, resulting in less royalty payments for the American people," he said.
Bishop requested that each of BLM's state offices conduct public forums before the agency finalizes any of the onshore orders.
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House Package, Climate Resolutions Will Move To Floor After Recess
Nov 18, 2015 | E&E Daily News
By Geof Koss and Tiffany Stecker
A key House lawmaker said yesterday that a broad energy package and disapproval resolutions targeting U.S. EPA's Clean Power Plan will come to the floor the week Congress returns after the Thanksgiving break.
Rep. Ed Whitfield (R-Ky.), who chairs the Energy and Commerce Subcommittee on Energy and Power, told E&E Daily the comprehensive package (H.R. 8) will hit the floor the week of Nov. 30, as will the Congressional Review Act resolutions (H.J. Res. 71 and H.J. Res. 72) that would block the climate rules for new and existing power plants.
Both parties on the Energy and Commerce Committee spent months negotiating the energy package, which aims to boost the electric grid, efficiency and speed of the export of natural gas. But Democrats largely opposed the bill in committee, after weeks of discussions failed to resolve outstanding issues (E&E Daily, Oct. 1).
Whitfield signaled some changes are possible before the legislation hits the floor but said the bill will largely resemble what passed the committee.
"I think it will pass overwhelmingly, and it will basically be the way it came out of committee," he said. "There may be a few changes."
Energy and Commerce Chairman Fred Upton (R-Mich.) separated more controversial issues from the package, but it's still drawn complaints from environmentalists (E&ENews PM, Nov. 10) and conservative groups (E&ENews PM, Oct. 15).
Whitfield acknowledged the bill doesn't tackle higher-profile issues but predicted that it will still draw broad backing.
"It's a pretty modest bill in many ways, but we think it's important, and we think it will pass overwhelmingly," he said. "The Senate's going to pass a bill, and so I think you're going to see one of the rare conferences with the Senate on a piece of legislation."
However, Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) acknowledged yesterday that a floor debate for her committee's companion bill (S. 2012) is likely to slip into next year. She had hoped for floor time this fall but noted a crowded to-do list is likely to crowd it out before next year.
"It's looking more and more difficult," she told E&E Daily yesterday.
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EPA Proposes More Power Plant Emissions Cuts
Nov 18, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
An Environmental Protection Agency proposal would require power plants in 23 states to achieve additional reductions in emissions of nitrogen oxides, a precursor to the formation of ground-level ozone.
The proposed rule, signed Nov. 16 and released to the public Nov. 17, would update the state emissions budgets for nitrogen oxides included in the cross-state air pollution rule to address power plant emissions that interfere with the ability of downwind areas to attain or maintain the 2008 national ozone standards of 75 parts per billion.
The EPA projected the rule would cut nitrogen oxides emissions by 85,000 tons in 2017, but state air officials told Bloomberg BNA that the proposal only partially addresses the role of transported air pollution because it only addresses power plant emissions, not emissions from other sources.
“EPA has taken a concrete step toward reducing smog-forming emissions from power plants,” Bill Becker, executive director of the National Association of Clean Air Agencies, told Bloomberg BNA in an e-mail. “But, as the agency itself acknowledges, the proposal is merely a ‘partial solution' and does not come close to fully addressing the serious health problems our nation faces due to ozone pollution.”
The EPA said in a fact sheet that the proposal, combined with other factors affecting the power sector, will result in a more than 30 percent reduction of summertime nitrogen oxides emissions from 2014 to 2017.
The agency projected its proposal (RIN 2060-AS05) would affect 913 power plants and cost the power industry $93 million annually starting in 2017.
The agency said the proposal would lead to significant improvements in air quality for the 2017 ozone season.
EPA Touts ‘Familiar' Framework
Janet McCabe, EPA acting assistant administrator for air and radiation, told reporters that the proposal would use a “familiar approach” to addressing pollution that crosses state lines. She noted that the EPA framework for addressing transport under national ozone standards was affirmed by the U.S. Supreme Court.
The Supreme Court in 2014 upheld the structure of the cross-state air pollution rule (RIN 2060–AP50), finding that the EPA made a reasonable, cost-considering interpretation of the Clean Air Act's “good neighbor” provision, which requires upwind states to control emissions that prevent downwind areas from attaining or maintaining national air standards (EPA v. EME Homer City Generation LP, 134 S. Ct. 1584, 78 ERC 1225, 2014 BL 118432 (2014); 83 DEN A-1, 4/30/14).
McCabe said the proposed transport rule would update summertime nitrogen oxides emissions budgets for the 23 affected states, which the agency determined affect the ability of downwind areas to attain and maintain the 2008 ozone standards. Power plants will have significant flexibility to determine how they will comply with the transport rule, which allows for emissions trading within the affected states.
An EPA analysis of the power sector found that the industry can achieve cost-effective emissions reductions through a variety of control techniques, including the operation of already-installed pollution controls and shifting generation to power plants with lower emissions, McCabe said.
States: ‘Minimalist' Approach on Transport
Paul Miller, deputy director and chief scientist at the Northeast States for Coordinated Air Use Management, told Bloomberg BNA in an e-mail that he was still reviewing the proposal, but said the agency took a “minimalist approach” that does not fully address the contributions of emissions that cross state lines to the 2008 ozone standards. Miller said one reason for that approach may have been the timing of the rulemaking, which aims for reductions by 2017.
“In light of the timing, I don't think EPA felt like it had many practical options for lowering state NOx budgets with such a short time horizon that could go beyond readily available measures for fossil fuel power plants,” Miller said. “Therefore, it adjusted state NOx budgets assuming such rudimentary things like coal plants would actually run their already installed controls, installed controls that are being run could be better optimized and some generation could be shifted to lower emitting sources.”
NESCAUM is an association of eight Northeastern states, including New York, New Jersey and Connecticut. Each of those three states have areas that would face challenges in meeting or attaining the 2008 ozone standards due to emissions from upwind states, according to the EPA.
Both Miller and Becker said the EPA must take additional action to fully address ozone transport, including new federal control measures to cut nitrogen oxides emissions from sources beyond power plants. They both highlighted heavy-duty vehicles as a significant source of nitrogen oxides emissions that the EPA could address, though Miller said there is no indication that the EPA plans to move quickly to do so.
No Provisions for 2015 Ozone Standards
Environmental groups largely welcomed the proposal to further reduce power plant emissions.
Graham McCahan, senior attorney for the Environmental Defense Fund, said in a statement that the proposal is a “common sense and achievable next step” to provide the American public with healthier air.
Frank O'Donnell, president of the nonprofit Clean Air Watch, said in an e-mail that the proposal is a “step in the right direction” toward helping downwind states meet national ozone standards. However, O'Donnell said the updated transport rule would help states meet the 2008 ozone standards, not the new, stronger ozone standards (RIN 2060-AP38) of 70 ppb issued in October.
“So EPA must do more in the future to help downwind states meet the new ozone standard set earlier this year,” O'Donnell said. “Anything less than that will fail to adequately protect public health.”
Miller said there is a sense that states are ready to move past the 2008 standards in order to get at implementing the newer 2015 ozone standards.
When asked for a reaction to the proposed transport rule, Howard Feldman, senior director of regulatory and scientific affairs at the American Petroleum Institute, said the EPA and states need to work toward meeting the 2008 ozone standards before implementing the more stringent 2015 standards.
“Implementation of the 2015 standards should be delayed until states have a chance to reach the previous standards,” Feldman said in an e-mail.
D.C. Circuit Ruling Addressed
McCabe told reporters the proposed transport rule would address a July ruling by the U.S. Court of Appeals for the District of Columbia Circuit that found some emissions budgets under the cross-state rule to be illegal.
While the Supreme Court upheld the framework of the cross-state rule, it also found the EPA lacks the authority under the Clean Air Act to require states to achieve reductions beyond what would bring all affected downwind states into compliance with national air standards. The D.C. Circuit in July found the EPA impermissibly over-controlled power plant emissions in 13 states and remanded the emissions budgets back to the EPA for further consideration (EME Homer City Generation LP v. EPA, 795 F.3d 118, 80 ERC 2005, 2015 BL 239912 (D.C. Cir. 2015); 145 DEN A-6, 7/29/15).
That ruling covered the 2014 ozone-season nitrogen oxides budgets for the following 11 states: Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia and West Virginia.
McCabe said the proposed transport rule would set new budgets for nine of those states, while removing two other states, South Carolina and Florida, from the cross-state rule's ozone season nitrogen oxides trading program.
“It takes care of that remand issue, as well as focusing on the 2008 ozone standard,” McCabe said.
The proposed update to the transport rule does not include any provisions on sulfur dioxide emissions, so it would not resolve the D.C. Circuit's ruling on sulfur dioxide emissions budgets for Alabama, Georgia, South Carolina and Texas.
Public Meeting Planned
The EPA will open a 45-day public comment period after the proposed transport rule is published in the Federal Register.
In addition, the agency scheduled a Dec. 17, 2015, public hearing on the proposal that will be held in Washington, D.C. The hearing will be held at the EPA's headquarters in the William Jefferson Clinton East building.
Parties interested in offering testimony at the hearing can contact Gabrielle Stevens in the EPA's Office of Air and Radiation at stevens.gabrielle@epa.gov by Dec. 15.
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Clean Power Plan Goal Will Be 'Far Surpassed' -- McCarthy
Nov 17, 2015 | E&E News PM
By Amanda Reilly
The United States will "far" surpass the Clean Power Plan's 2030 goal to reduce carbon dioxide emissions from the power sector by 32 percent compared to 2005 levels, U.S. EPA Administrator Gina McCarthy predicted.
In a podcast released today by Columbia University's Center on Global Energy Policy, the EPA administrator defended the agency program and said it follows a shift from coal-fired power generation that's already taking place in the market.
"The coal industry with its power generation is becoming much less competitive over time, particularly with the advent of inexpensive natural gas," McCarthy said. "So you're seeing the exact shift that we're talking about. You're seeing a shift from coal to natural gas, and you're seeing a shift now to increase renewables, becoming competitive even with natural gas."
McCarthy also touted the U.S. leadership role in the upcoming international climate negotiations in Paris as opponents in the Senate today warned that they may block funding that President Obama has promised to help developing countries.
"We're going to put attendees of the conference on record and be aware of the fact that the money may not be coming," Sen. John Barrasso (R-Wyo.) said today.
Barrasso and Senate Environment and Public Works Chairman James Inhofe (R-Okla.) are circulating a letter to Obama about the upcoming climate negotiations that will be made available tomorrow, according to Barrasso's office. The EPW Committee tomorrow will hold a hearing on the negotiations.
In Paris, U.S. negotiators will likely lean heavily on the Clean Power Plan to show the U.S. commitment to addressing climate change. Under the Clean Power Plan finalized in August, states are required to develop plans to meet individual carbon dioxide reduction targets for existing power plants.
EPA faces pushback against the Clean Power Plan in both the courts and Congress. Today, the Senate began a debate on a resolution under the Congressional Review Act that would kill the rule, though the White House has threatened to veto the measure (Greenwire, Nov. 17).
The House Energy and Commerce Committee this afternoon is also scheduled to begin marking up CRA resolutions targeting the plan and EPA's rule to stem carbon dioxide emissions from new and modified power plants.
"People will be concerned," McCarthy said, "but I think we will prevail, and I think over time people will see that the actions we're asking them to take are actually in the direction in which investments are happening now."
McCarthy highlighted the ability of states to shape their own individual or regional plans to meet the program's targets. She said that "job one" was to maintain reliability in the electricity system and that EPA also looked wherever possible for opportunities to lower cost, pointing to the agency's decision to extend the time frame for compliance compared to the proposed rule.
"We are looking at the energy transition that is already happening," she said, "and we're setting our standards on a state-by-state basis on how much those facilities themselves might be able to reduce, how much opportunity there is for shifting between high- and low-carbon fuels."
Today, Senate opponents cast the plan as part of a broader war on coal by the Obama administration and raised doubts about the legality of the program and whether its targets were feasible.
The full Senate could still vote as soon as today on the resolution to eliminate the Clean Power Plan. A separate resolution to defeat the administration's regulations on new coal plants will also likely be considered.
"They're putting something that is unattainable in place," said Sen. Joe Manchin of West Virginia, one of few Democratic senators to publicly support the resolutions. "That's why we need to block this plan."
Opponents in the Senate are hoping to use the CRA vote to send a message to the international community before the Paris talks that Congress is not on board with Obama's climate change agenda.
In the podcast, McCarthy today said she would "likely" attend the climate change negotiations that kick off Nov. 30. She said she looked forward to having a "positive outcome" at the talks and said the U.S. delegation would focus on making sure countries agree to aggressive carbon reduction goals, a way to revisit the targets and a means of providing financial support to the poorest countries.
McCarthy said the tone was different in the runup to the Paris talks than previous international climate negotiations because of the commitments that countries, including China and India, have made to reduce their emissions.
"I do think, and I don't want to overstate this, but the dedication of the United States and the leadership of the president going into Paris has, I think, changed that dynamic considerably," she said. "People have high hopes, and we'll have to see what we come out with."
Obama has pledged to provide $3 billion toward an international fund to help poorer countries. But Barrasso said poorer countries shouldn't automatically expect to see that money if there's a final agreement at the end of the Paris talks.
"We want to make sure that any of these countries that think they're going to have a check to cash because of an agreement that the president may make in Paris," he told reporters, "that they shouldn't cash the check just yet, that they shouldn't spend the money because we're going to have a say on whether they get the money or not."
McCarthy acknowledged that Congress could hold up the funding but countered that the Obama administration's pledge to help developing countries was "much broader" than the $3 billion fund.
She said she was not surprised about the backlash to the Obama administration's climate agenda and suggested the pushback against the Clean Power Plan occurred because the rule is "hard to explain to people that don't follow the Clean Air Act."
"We certainly knew that this was not going to be an effort without controversy," McCarthy said. "You know climate change has been an issue of tremendous controversy. No matter what we did, it would have been controversial."
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EPA: ‘Clear' Right to Shield McCarthy From Deposition
Nov 18, 2015 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency's right to a writ of mandamus to prevent Administrator Gina McCarthy from being deposed in a lawsuit over the impact air pollution regulations have on jobs “is clear and indisputable,” the agency told a federal appellate court (In re McCarthy, 4th Cir., No. 15-2390, brief filed 11/16/15).
The EPA, which had petitioned the U.S. Court of Appeals for the District of Columbia Circuit Nov. 10 for a writ of mandamus to prevent McCarthy's deposition in a lower court, expanded its argument in favor of the measure in a brief filed Nov. 16. The U.S. District Court for the Northern District of West Virginia overstepped its authority by ordering McCarthy to be deposed in the lawsuit, and her testimony will not provide any information the plaintiffs could not obtain elsewhere, the EPA argued.
“In ruling on the EPA's motion for a protective order, the district court should have determined whether Administrator McCarthy's deposition would give Murray new information essential to its case that could not be obtained from another source,” the EPA said. “But the court did not point to new information that could be disclosed in the deposition that would be relevant (much less essential ) to Murray's claim, nor did the court explain why the information sought could not be obtained elsewhere.”
The EPA has sought the writ of mandamus because Judge John Preston Bailey of the U.S. District Court for the Northern District of West Virginia has refused to shield McCarthy from deposition in a lawsuit brought by Murray Energy Corp. and 11 other affiliated coal companies that seeks to compel the agency to evaluate the impact its air pollution regulations have on jobs as required by Section 321(a) of the Clean Air Act. The coal companies argue rules such as carbon dioxide standards for power plants and hazardous air pollution limits for industrial boilers have affected jobs in the industry.
Bailey on Nov. 12 denied the EPA's motion to shield McCarthy from deposition (Murray Energy Corp. v. McCarthy, N.D. W.Va., No. 5:14-cv-00039-JPB, order issued 11/12/15; 219 DEN A-2, 11/13/15).
“There is no reason to believe that Administrator McCarthy's deposition could provide essential information about the EPA's alleged noncompliance with Section 321(a) of the Clean Air Act, and contrary to the reasoning of the district court, an agency's noncompliance with a statutory obligation does not constitute ‘a clear showing of misconduct or wrongdoing' that could justify deposing a Cabinet-rank officer,” the EPA told the appellate court.
The coal companies' response brief is due Nov. 20.
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Despite Veto Promise, Senate Backs Resolutions Rejecting EPA GHG Rules
Nov 17, 2015 | InsideEPA
By Doug Obey
The Republican-led Senate has moved forward with resolutions disapproving EPA's greenhouse gas (GHG) rules for new and existing power plants, demonstrating that a majority of the chamber is opposed to the rules in an effort to bolster support for Republicans in coal states and undercut the Obama administration's negotiating position in the looming United Nations climate talks in Paris.
But the administration has already pledged to veto the measures in strongly worded statements, meaning that they remain for now a purely political statement against the president's climate agenda.
“I think we need to make a statement that this is a regulation that is going to be very harmful,” Sen. Shelley Moore Capito (R-WV) said in a Nov. 17 interview with Inside EPA, acknowledging that critics of EPA's GHG rules lack the votes to overcome Obama's pledged vetoes of the resolutions.
Even so, Capito said the Senate votes put her and others “on record” in opposition to the rules.
Capito added that the resolutions also signal to other countries that President Obama lacks Capitol Hill support for his climate agenda in the lead up to the Paris negotiations, scheduled for Nov. 30-Dec. 11.
Capito's comments came prior to a 52-46 Senate vote on a resolution -- backed mostly by Republicans and a handful of coal state Democrats -- calling for EPA's existing source performance standards (ESPS) to have “no force or effect.”
In a subsequent vote on a separate resolution, the Senate voted 52-46 to reject EPA's companion GHG rule for new and modified power plants.
Sen. James Inhofe (R-OK), the Environment & Public Works Committee (EPW) chairman and a longtime EPA foe, acknowledged the inevitability of an administration veto, but he said in a floor statement that the Senate votes demonstrate “there will be no possibility of legislative resurrection” of the rules should courts reject them.
The debate on EPA' GHG rules gave lawmakers a chance to reiterate familiar arguments for and against the rules under expedited Congressional Review Act (CRA) procedures that guaranteed passage with a 50-vote threshold in the Senate. However, the CRA also requires both chambers of Congress to muster a two-thirds majority to overcome a presidential veto.
EPA's critics -- mostly Republicans -- called the rules a threat to low-cost electricity and the economy.
“Passing this regulation will send a clear message to the world that a majority of the U.S. Congress does not stand behind the president's efforts to address climate change with economically catastrophic regulations,” Capito said in floor remarks branding the rules as an effort to implement cap-and-trade programs that failed in Congress in 2010.
The votes also split members of the nascent Senate Republican energy and environment working group, with the groups's organizer -- Sen. Kelly Ayotte (R-NH) -- and Sen. Mark Kirk (R-IL) voting against the resolutions. Another member, Sen. Lamar Alexander (R-TN) voted for them. The fourth member, Sen. Lindsey Graham (R-SC) is running for president and did not vote, but has said he opposes EPA's rules. Ayotte and Kirk are up for reelection in 2016.
The only other Republican to vote against the resolutions was Sen. Susan Collins (R-ME).
Three Democrats voted for the resolutions: Sens. Joe Manchin (WV), Heidi Heitkamp (ND) and Joe Donnelly (IN).
Other Democrats, meanwhile, argued the rules could lower power bills, are sorely needed to address mounting concerns about climate change and are legally required under the Clean Air Act. “The administration is not only well within its rights, if they did not act they would be sued and they would lose,” said EPW ranking member Barbara Boxer (D-CA).
Democrats also sought to turn the votes into a referendum on the lack of a Republican plan for addressing climate change, and repeatedly challenged Republicans to come up with an alternative to EPA's GHG rules.
Republicans have not elaborated on such alternatives, though Ayotte in a brief interview noted that the GOP environment working group plans to hold its first meeting this week.
Paris Attacks
Both parties showed early signs of trying to adapt their political messaging on the rules to the recent terrorist attacks in Paris, with Democrats calling the CRA votes effort a diversion from important security and budget priorities and some Republicans dismissing concerns over climate change as “trivial” in light of the attacks.
“Given what happened in Paris, given the need to keep America safe, why are we going after the Clean Air Act again?” said Boxer. “We should be moving to [consider] the omnibus budget agreement. We should be moving in every part of that budget to make America safe.”
In a similar vein, Sen. Sheldon Whitehouse (D-RI) said, “While the smoke is still clearing over Paris, we are still engaged in this big exercise in time wasting.” Whitehouse noted the resolutions would not survive a veto and suggested the votes were an attempt to demonstrate loyalties to “big oil” and tea party climate deniers.
On the Republican side, Sen. John Barrasso (R-WY) in Nov. 17 remarks to reporters cited the Paris attacks as a reason to de-prioritize the administration's climate agenda, which he already opposes. He also noted that he is poised to release a letter from senators to the president reiterating demands that the President not strike a climate deal in Paris that circumvents Congress.
The White House just prior to both votes issued two Statements of Administration Policy (SAPs) that pledged in no uncertain terms that Obama would veto both resolutions because they would “undermine the public health protections of the Clean air Act and stop critical US efforts to reduce dangerous carbon pollution from power plants.”
The SAP on the resolution targeting the new power plant rule adds: “Most importantly the resolution could enable continued build-out of outdated, high-polluting, and long-lived power generation infrastructure and impede efforts to reduce carbon pollution from new and modified power plants -- when the need to act, and to act quickly, to mitigate climate change impacts on American communities has never been more clear.” The SAP addressing the ESPS resolution contains similar language and says the resolution would “block progress towards cleaner energy, eliminating public health and other benefits of up to $54 billion per year by 2030. Most importantly, the resolution would impede efforts to reduce carbon pollution from existing power plants -- the largest source of carbon pollution in the country.”
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RGGI Stakeholders Agree on Power Plan Compliance Approach
Nov 18, 2015 | BNA Daily Environment Report
By Gerald B. Silverman
Environmental groups and representatives from the electric power industry agreed Nov. 17 that states in the Regional Greenhouse Gas Initiative should use a mass-based approach for new and existing sources of carbon emissions to comply with the Environmental Protection Agency's Clean Power Plan.
They disagreed, however, on how aggressively the RGGI states should pursue opening up the cap-and-trade program to other states. Environmentalists urged caution in expanding the program, while representatives from the power industry encouraged expansion.
The comments were made at the first of four stakeholder meetings scheduled by RGGI as it seeks input on how it can comply with the Clean Power Plan (215 DEN A-19, 11/6/15).
The RGGI states anticipate using the mass goals under the Clean Power Plan for both existing and new sources as a pathway for compliance. They also plan to use the rule's emissions standards approach and then discuss with stakeholders the best potential pathway to becoming trading-ready.
Would Miss ‘A Big Opportunity.'
Derek Furstenwerth, senior director of environmental services at Calpine Corp., told the meeting that RGGI's structure “has been one that has worked very well” and should be a model for other states to comply with the Clean Power Plan. He said RGGI would be missing “a big opportunity” if it didn't open up trading with other states.
“A lot of details have to be worked out on how that would work, but generally speaking, we would want to see the program be able to trade with states outside of RGGI,” he said.
Radmila Miletich, legislative and environmental policy director for the Independent Power Producers of New York (IPPNY), told the meeting that IPPNY would like RGGI to consider moving beyond just the electric sector to include other sectors of the economy. She called for “a more comprehensive and holistic” approach to carbon reductions.
“We need to see what other sectors need to do to catch up to the electricity sector,” she said.
Joshua Berman, a staff attorney with the Sierra Club, told the meeting that RGGI should be used as a means for the northeastern states to meet their long-term, economywide greenhouse gas emissions goals. Eight of nine RGGI states have greenhouse gas goals for 2030 and 2050.
“We see RGGI as the obvious and only workable tool to do this in the electricity sector,” Berman said.
Jordan Stutt, a policy analyst at the Acadia Center, told the meeting that RGGI states should take a “wait-and-see” approach to expanding to other states, although Acadia would “certainly like to see a national trading program. He said RGGI is a mature program that has worked out a number of problems over the years, including an oversupply of allowances and low allowance prices. Nascent markets, he said, may experience similar problems.
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Majority of Senate Votes to Kill Obama Climate Rules
Nov 18, 2015 | BNA Daily Environment Report
By Anthony Adragna
More than half the Senate Nov. 17 voted to kill two regulations that are the centerpieces of President Barack Obama's efforts to combat climate change.
One resolution (S.J. Res. 24), offered under the Congressional Review Act, would immediately nullify the Clean Power Plan, which regulates carbon dioxide emissions from existing power plants, and would prevent the Obama administration from ever promulgating a “substantially similar” regulation. The other resolution (S.J. Res. 23) would thwart a separate regulation setting carbon dioxide emissions limits for new and modified power plants with the same bar on a similar future rulemaking.
Based on the 52-to-46 votes on both resolutions, the measures are well short of the support of the two-thirds of the chamber necessary to overcome promised vetoes from Obama.
Republicans and some coal-state Democrats said the efforts are necessary because the Environmental Protection Agency rules would devastate the nation's economy, harm electricity reliability and costs thousands of jobs. Republicans also said the measures send a signal to international climate negotiators—less than two weeks before they are due to convene in Paris—that the majority of Congress does not back Obama's approach to addressing climate change.
‘Sends Clear Message.'
“Passing this regulation will send a clear message to the world that a majority of the U.S. Congress does not stand behind the president's efforts to address climate change with economically catastrophic regulations,” Sen. Shelley Moore Capito (R-Ky.) said on the Senate floor. “Congress should pass this resolution and place this critical issue squarely on the president's desk. America's economic future is at stake here, and it is time to send a clear signal that enough is enough.”
The Senate action comes as the House prepares to advance its own measures (H.J. Res. 71 and H.J. Res. 72) to block the regulations. The full House Energy and Commerce Committee is expected to advance companion resolutions from Rep. Ed Whitfield (R-Ky.) on Nov. 18, and a full chamber vote is likely on those this month (220 DEN A-1, 11/16/15).
Both EPA regulations were published in the Oct. 23 Federal Register (80 Fed. Reg. 64,510; 80 Fed. Reg. 64,662). The EPA's Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state. The standards would be implemented by state regulators. The new source performance standards (RIN 2060-AQ91) set similar carbon dioxide emissions limits for new power plants.
Vetoes Threatened by White House
In two statements of administration policy, the White House—using stronger language than usual—confirmed Obama would veto both resolutions of disapproval should they reach his desk.
“Because S.J. Res. 24 threatens the health and economic welfare of future generations by blocking important standards to reduce carbon pollution from the power sector that take a flexible, common sense approach to addressing carbon pollution, if the President were presented with S.J. Res. 24, he would veto the bill,” the statement on the Clean Power Plan resolution said.
Most statements of administration policy say advisers would recommend Obama veto a bill, while the Nov. 17 documents said he unequivocally would do so.
Disapproving of the regulation of new and modified power plants would delay the transition to cleaner fuel sources while endangering public health, the second statement of administration policy said.
“The resolution could enable continued build-out of outdated, high-polluting, and long-lived power generation infrastructure and impede efforts to reduce carbon pollution from new and modified power plants—when the need to act, and to act quickly, to mitigate climate change impacts on American communities has never been more clear,” the statement said in reference to S.J. Res. 23.
The attacks on the EPA regulations come, in part, as an attempt to weaken the president's hand going into international negotiations toward an accord on climate change. But Senate Democrats vowed to uphold Obama's veto and predicted the efforts would have little impact as nearly 200 nations gather for United Nations talks.
“I don't think there will be any cloud over the president's authority in Paris,” Sen. Ed Markey (D-Mass.), a leading climate change advocate, told reporters.
Sen. Ben Cardin (D-Md.), another leading advocate of climate action, told Bloomberg BNA the Senate efforts were “not helpful” for the Paris talks but said the international community already understood Obama's efforts enjoyed significant support in Congress.
Other Senate Democrats said the vote raised the more fundamental question of whether senators believed carbon dioxide is a pollutant. Sen. Brian Schatz (D-Hawaii) said it would be a new litmus for those who deny climate change, saying the Clean Air Act requires the EPA to act to address carbon dioxide emissions.
The Clean Air Act “doesn't authorize the EPA to regulate airborne pollutants as they see fit,” Schatz said. “It requires them to regulate all air pollutants.”
Some Party Defections
Three Democratic senators—Sens. Joe Manchin (W.Va.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.)—bucked their party and supported the efforts to nullify the regulations.
Three Republicans—Sens. Susan Collins (Maine), Mark Kirk (Ill.) and Kelly Ayotte (Maine)—voted against the efforts to undermine the EPA regulations. Two Republicans running for president, Sens. Marco Rubio (Fla.) and Lindsey Graham (S.C.), did not vote.
Before the vote, the U.S. Chamber of Commerce “strongly” urged senators to support both efforts to kill off the centerpieces of Obama's efforts to tackle climate change.
“The impact these rules will have on power prices means they will inevitably have negative implications extending to nearly every segment of the economy,” R. Bruce Josten, executive vice president of government affairs for the group, said in a letter Nov. 17.
Other groups also supportive of killing the EPA rules include the American Energy Alliance, Americans for Prosperity and the National Mining Association.
More than 110 environmental groups, including the Union of Concerned Scientists, Sierra Club, Natural Resources Defense Council and League of Conservation Voters, urged senators Nov. 16 to oppose the efforts to kill the regulations (221 DEN A-11, 11/17/15).
Another Lawsuit Filed
Meanwhile, the West Virginia Coal Association became the latest interest group to challenge the Clean Power Plan in federal court. That lawsuit was filed Nov. 17 in the U.S. Court of Appeals for the District of Columbia Circuit (West Virginia Coal Ass'n v. EPA, D.C. Cir., No. 15-1422, lawsuit filed 11/17/15).
Twenty-seven states, led by West Virginia, have filed similar lawsuits while 18 other states have come to the EPA's defense. No new states are expected to join the litigation at this point (West Virginia v. EPA, D.C. Cir., No. 15-1363, 10/23/15).
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Senate Votes To Strike Down Obama’s Climate Rules
Nov 17, 2015 | The Hill - E2 Wire
By Timothy Cama
The Senate voted Tuesday to block a pair of regulations representing the central pillars of President Obama’s climate change initiative.
The votes approving resolutions under the Congressional Review Act come less than two weeks before Obama and other world leaders meet in Paris to agree to a worldwide pact to fight global warming.
The votes are symbolic, since Obama would veto the resolutions and supporters do not have the two-thirds majority needed in both chambers to override the vetoes.
Senators voted 52-46 to stop the carbon dioxide limits for existing power plants, which mandate a 32 percent cut in the power sector’s carbon by 2030. The to block the related carbon rule for newly built power plants pass by the same vote.
Together, the regulations are the biggest part of Obama’s pledge going into the talks to cut the United States’ greenhouse gases 26 percent to 28 percent.
Obama pledged to veto the Senate’s measures. But Republicans said it is nonetheless important to take a stand against the Environmental Protection Agency (EPA).
“If the administration’s proposed Clean Power Plan moves forward, hardship will be felt all across the country. Fewer job opportunities, higher power bills, and less reliable electricity will result,” Sen. Shelley Moore Capito (W.Va.), who sponsored the legislation on the existing plant rule out of concern for West Virginia’s coal-dependent economy, said on the Senate floor.
“Congress should pass this resolution and place this critical issue squarely on the president’s desk,” she said. “America’s economic future is at stake here, and it is time to send a clear signal that enough is enough.”
Sen. Heidi Heitkamp (D-N.D.), who also sponsored the Capito’s resolution, said the EPA’s rule threatens to harm electricity reliability so much that Americans could not be sure their lights would turn on.
“The one thing that we do is that when you reach over to turn on a light switch in the United States of America, the lights come on. And it doesn’t matter what time of the day,” she said, adding that the EPA rule makes that harder.
The White House said Obama would veto the measures, saying they would threaten billions of dollars of benefits to public health and the environment from the regulations.
“Most importantly, the resolution would impede efforts to reduce carbon pollution from existing power plants — the largest source of carbon pollution in the country — when the need to act, and to act quickly, to mitigate climate change impacts on American communities has never been more clear,” the White House said of the existing plant measure, with a similar statement on the other resolution.
Democrats largely agreed, and they criticized Senate Majority Leader Mitch McConnell (R-Ky.) for bringing it to the floor instead of more pressing matters, like funding homeland security.
“I find it really hard to comprehend that a majority of this senate led by my Republican friends would side with the special interests above the people who simply want to breathe clean air, who simply want to see us dedicated to the fight against climate change,” said Sen. Barbara Boxer (D-Calif.), the ranking member of the Environment and Public Works Committee.
She asked why McConnell would bring up the resolutions after last week’s terrorist attacks in Paris “instead of taking up that budget agreement and looking in a bipartisan way at every single agency ... that we fund to make sure they are doing everything to keep America safe?”
“This is an historic debate,” Sen. Ed Markey (D-Mass.) said earlier Tuesday. “It basically boils down to whether or not in the 21st century the United States is going to be leader in the clean energy revolution … or we are still going to be tied to 19th-century technologies like coal.”
The rules, which were made final in August, are also under litigation after various states and dozens of energy companies and groups sued in federal court to stop it.
The House Energy and Commerce Committee is expected to vote Wednesday on that chamber’s versions of both resolutions.Heitkamp was joined by Sens. Joe Donnelly (D-Ind.) and Joe Minchin (D-W.Va.) to buck their party and vote for the resolutions.
Send. Kelly Ayotte (R-N.H.), Susan Collins (R-Maine) and Mark Kirk (R-Ill.) voted with the Democrats against the measures.
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Senate Votes To Upend Centerpiece Of Obama Climate Pledge
Nov 17, 2015 | PoliticoPro
By Andrew Restuccia and Darren Goode
The Senate approved a pair of resolutions on Tuesday aimed at killing the centerpiece of President Barack Obama's climate agenda, part of a Republican-led effort to undercut the White House goal of striking a new global warming deal in Paris next month.
The Senate voted to green-light two disapproval resolutions under the Congressional Review Act, a seldom-invoked law that allows lawmakers to reject a recently finalized regulation with a simply majority vote. One resolution targeted EPA's climate rule for existing power plants, and a second focused on EPA's climate rule for new and modified power plants. Both passed 52-46, largely along party lines.
But the resolutions will not succeed in overturning the EPA regulations. Obama will smack the measures down with vetoes, and lawmakers do not have enough support to override him.
Republicans have been plotting for months to complicate the Obama administration's push for a deal in Paris.
"I think [diplomats] will take a message away from this vote," said Sen. Shelley Moore Capito (R-W.V.), who introduced the first resolution. "The general support for the direction he’s going is weak at best."
Senate Majority Leader Mitch McConnell (R-Ky.), who sponsored the other resolution, focused his attack on the domestic effects of the EPA rules, particularly in his coal-dependent home state.
“Just like with its decision on Keystone last month, the Obama administration is putting facts and compassion to the side in order to advance their ideological agenda,” McConnell said on the Senate floor earlier Tuesday, referring to rejection of the Keystone XL pipeline. “Higher energy bills and lost jobs may be a mere trifle to some on the left, but it’s a different story for millions of middle class Americans in Kentucky and across our country.”
Senate Minority Leader Harry Reid defended the president’s climate regulations. “It is the right thing to do and the president will protect this because it’s the right thing for the health of America,” he said.
Democrats also said the Senate's time would be better spent devising a response to the attacks that rocked the French capital last week. In a floor speech, Sen. Sheldon Whitehouse (D-R.I.) called climate change a "catalyst of conflict" that exacerbates tensions that fuel terrorism and wars.
"Paris is still recovering from the terrorist attacks ... and the majority leader wants to spend floor time serving the coal industry and trying to undue the president's Clean Power Plan," Whitehouse said at a news conference earlier Tuesday.
Sen. John Barrasso (R-Wyo.), a leading EPA critic who doubts mainstream climate science, blasted Democrats who say climate change is a national security issue.
“So when you have a Russian airliner bombed out of the air, when you have the number of killings, deaths, the carnage in Paris, it is time for the president to move away from his focus on climate, which to me appears like a trivial pursuit," Barrasso said Tuesday. "The president ought to be focused not on the upcoming Paris climate talks two weeks from now but on the impacts that are happening and happened in Paris last week."
The House Energy and Commerce Committee is expected to approve a similar set of resolutions this week and the full chamber will follow suit as soon as Nov. 30, the first day of the Paris climate change summit. “That’s probably the best opportunity ... to make it clear what our position is in terms of this international conversation,” said Matt Sparks, a spokesman for House Majority Leader Kevin McCarthy.
Republicans are hoping the votes will send a message to diplomats gathering in Paris for the two-weeks negotiations that a majority of Congress is not behind the president's agenda. They also want to underscore the likelihood that a Republican president would abandon the president's focus on climate change.
The resolutions won the support of three moderate coal-state Democrats, Sens. Joe Manchin, Heidi Heitkamp and Joe Donnelly. Green groups including the Sierra Club and Environment America had mounted advertising campaigns in recent weeks aimed at keeping other moderate Democrats on board, including Sens. Claire McCaskill, Bob Casey, Mark Warner, Michael Bennet and Donnelly.
Republican Sens. Kelly Ayotte, Mark Kirk and Susan Collins voted against the CRA resolutions. Ayotte is facing one of the toughest re-election races next year and became the first national Republican to embrace the Clean Power Plan earlier this year. Kirk, who has faced green pressure in his tough re-election race, had said the EPA rules would harm coal workers in his home state but sided with the administration in the end. Sens. Lindsey Graham and Marco Rubio, both of whom are running for president, did not vote on the resolutions.
"Senator Kirk has championed the ban on sewage dumping in the Great Lakes and today voted to improve air quality and reduce rising childhood asthma rates," a Kirk spokeswoman said in a statement explaining the senator's vote. "With our diverse energy portfolio, Illinois is already leading the way in energy efficiency and is well positioned to balance the the needs of the environment and the economy."
The votes show Republicans remain well-short of the 60 votes they would need to block EPA's rules with spending bill riders, which they have vowed to pursue. And the equal number of defections on either side of the aisle dampen their argument that there is widespread bipartisan opposition to the rules. GOP senators say they will continue to push for environmental policy riders in omnibus spending bill Congress will have to pass to avoid a government shutdown by Dec. 11, the same day the Paris climate talks are scheduled to end.
Sen. John Hoeven (R-N.D.), a member of the Appropriations Committee, acknowledged it would be tough to upend the climate rule, but said Republicans could use that as leverage to block EPA's Waters of the United States rule, which has less support in the Senate.
“The Clean Power Plan is going to be tougher to get both because I think there’ll be more Democratic pushback than on WOTUS and I think the White House obviously is going to fight harder on it as well," Hoeven said Tuesday. "So we may be stuck on the Clean Power Plan … until we get a different administration.”
Democrats said the resolutions will not weaken Obama's leverage in Paris.
“I don’t see it as a legitimate concern,” Whitehouse said. U.S. officials in Paris “will be able to explain that under our rules the president will veto this obviously… we will sustain the veto and this whole exercise is an exercise in futility.”
Many diplomats say they won't be distracted by Republicans' antics. Asked about the Republican attacks by reporters at a recent press conference, the United Nation's top climate change official, Christiana Figueres, shrugged and said, "Yeah, fine."
Indeed, there is growing momentum toward reaching a deal in Paris that encourages every country to take domestic measures to tackle climate change and establishes a mechanism to increase ambition over time. While the agreement on its own won't do enough to prevent the most catastrophic effects of climate change, diplomats hope it will lay the foundation for a decades-long transition off fossil fuels.
Obama has made clinching the climate deal a top second-term priority and a cornerstone of his environmental legacy. White House officials have said that Obama will oppose any attempt to undercut his climate agenda.
“We will not back down," White House chief of staff Denis McDonough said earlier this year, adding later, “We’ll veto ideological riders to stop this plan or undercut our bedrock environmental laws."
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White House Warns Of Veto For Second Carbon Rule Resolution
Nov 17, 2015 | PoliticoPro
By Alex Guillén
President Barack Obama would veto a Senate resolution designed to kill EPA's carbon rule for new and modified power plants, according to a White House Statement of Administration Policy released less than an hour before the measure is slated for a floor vote.
https://www.whitehouse.gov/sites/default/files/omb/legislative/sap/114/sapsjr23s_20151117.pdf
The Congressional Review Act resolution would threaten public health and undermine U.S. climate efforts by allowing the "continued build-out of outdated, high-polluting, and long-lived power generation infrastructure," the White House said.
Obama would veto the bill should it make it to his desk, it added. The White House issued a similar threat for the CRA resolution that would gut EPA’s rule for existing power plants.
The Senate is expected to vote on the measures at 5:30 p.m. The House Energy and Commerce Committee will vote on its own CRA measures tomorrow, with final passage likely coming during the international climate talks in Paris next month. Republicans do not have the votes to override a veto.
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EPA Wants Stronger ‘Good Neighbor’ Air Rule For States
Nov 17, 2015 | The Hill - E2 Wire
By Timothy Cama
The Obama administration is seeking to crack down further on air pollution that cross state borders and makes it harder for states to comply with regulations.
The Environmental Protection Agency (EPA) formally proposed Tuesday to update its “good neighbor” rule to take into account nitrogen oxide emissions that affect states’ compliance with 2008 ozone pollution limits. “This update will help protect the health and lives of millions of Americans by reducing exposure to ozone pollution, which is linked to serious public health effects including reduced lung function, asthma, emergency room visits and hospital admissions, and early death from respiratory and cardiovascular causes,” EPA head Gina McCarthy said in a statement.
“The proposed updates support states’ obligation to address air pollution that is carried across state lines,” she said.
The rule would affect 23 Eastern states whose nitrogen oxide emissions blow into other states and cause increase ozone levels, which are linked to respiratory ailments.
The update, taken with other measures, means a drop of about 30 percent of nitrogen oxides levels in 2017 compared with 2014. The EPA is expecting $1.2 billion in benefits at a $93 million cost.
The regulation is part of the Cross-State Air Pollution Rule, made final in 2011.
Frank O’Donnell, president of Clean Air Watch, welcomed the proposal from the EPA, but said it is not enough, since it relies only on the 2008 ozone standard, not the new ozone rule put in place this year.
“So EPA must do more in the future to help downwind states meet the new ozone standard set earlier this year,” he said. “Anything less than that will fail to adequately protect public health.”
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