Preview Newsletter
AM ACC 12/4/2015
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(ACC Mentioned) Film Review: ‘Stink!’
Dec 3, 2015 | Variety
By Nick Schager
Yet another testament to the nonfiction legacy of Michael Moore, “Stink!” embraces the documentary template established by the “Roger & Me” and “Bowling for Columbine” director to alternately exasperating and insightful ends. -
EPA Sets Deadlines For Proposing Rare Bans Of Certain Chemical Uses
Dec 3, 2015 | InsideEPA
By David Reynolds
PA has set deadlines for proposing bans of certain uses of several existing chemicals, including the solvent trichloroethylene (TCE), under the agency's rarely used Toxic Substances Control Act (TSCA) section 6 authority... -
Why You Should be Worried About Toxic Chemicals in Fragrance
Dec 4, 2015 | Safer Chemicals, Healthy Families
By Alexandra Scranton
Stop to think for a second about how many fragranced products you come into contact with every day. -
House Energy Bill Boosts Cybersecurity for Electric Grid
Dec 3, 2015 | The Hill - E2 Wire
By Devin Henry
A Republican-backed bill overhauling federal energy policy that passed the House on Thursday includes several significant provisions aimed at defending the nation’s power supply against cyberattacks. -
Congress Passes Highway Bill With Energy Measures
Dec 4, 2015 | BNA Daily Environmental Report
By Rachel Leven, Ari Natter and Amena H. Saiyid
Congress gave final approval late Dec. 3 to a five-year, $305 billion highway bill chock-full of environment and energy provisions and sent it to the president's desk. -
Congress Fails a Simple Test on Transportation
Dec 4, 2015 | Washington Post
By Editorial Board
House and Senate legislators concluded months of tense negotiations this week, agreeing on a transportation bill that will allocate $305 billion to roads, rails and bike paths during the next five years. -
(ACC Mentioned) Boiler Rules Besieged in Court by Greens, Industry
Dec 3, 2015 | E&E PM
By Robin Bravender
U.S. EPA's air pollution standards for boilers came under fire from critics today in a federal appeals court. -
(ACC Mentioned) Court Hears Arguments on Boiler, Incinerator Rules
Dec 4, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Oral arguments on the Environmental Protection Agency's national pollution standards for boilers and incinerators focused on a variety of challenges to the EPA's authority and methodology used to set the standards... -
(ACC Mentioned) D.C. Circuit Weighs Major Air Policy Disputes In Combustion Rule Lawsuits
Dec 4, 2015 | InsideEPA
By Stuart Parker
A three-judge U.S. Court of Appeals for the District of Columbia Circuit panel at Dec. 3 oral argument weighed major air policy disputes in lawsuits over EPA's package of combustion emissions rules, including the agency's method for setting air pollution limits... -
(ACC Mentioned) WtE: A Burning Opportunity
Dec 3, 2015 | Greener Package
By Ben Miyares
The plastic bottle recycling rate in the U.S. is slowing, reducing our resource recovery opportunities. -
EPA Warns Court Against Freezing Climate Rules
Dec 3, 2015 | E&E PM
By Robin Bravender
The Obama administration is asking a federal court not to block its contentious climate rules for power plants while an epic legal battle plays out. -
House Passes Energy Bill; Quick Senate Action Unlikely
Dec 4, 2015 | BNA Daily Environment Report
By Ari Natter
The House voted Dec. 3 to approve the first broad rewrite of energy policy in nearly a decade, but action on the Senate's version of the omnibus energy bill isn't expected to happen anytime soon. -
Senate Panel Chair Expects Compromise Energy Bill Next Year
Dec 3, 2015 | The Hill - E2 Wire
By Devin Henry
The Senate Energy Committee chair expects to be able to reconcile her chamber’s bipartisan energy reform bill with a version that passed the House on a nearly party-line vote Thursday. -
Environmental, Other Riders Threatening Omnibus Talks
Dec 4, 2015 | BNA Daily Environment Report
By David Schultz
Policy riders on environmental and other issues are causing negotiations over an upcoming omnibus spending bill to stall, casting into doubt whether Congress will be able to clear the bill before government funding expires Dec. 11. -
Past Administrators Join EPA in Power Plant Lawsuit
Dec 4, 2015 | BNA Daily Environment Report
By Andrew Childers
Two former Environmental Protection Agency administrators appointed by Republican presidents have joined litigation over the Clean Power Plan in support of the agency (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion to participate, 12/3/15). -
Court: Hickenlooper Can't Block State AG Lawsuits
Dec 4, 2015 | PoliticoPro - Whiteboard
By Alex Guillen
Colorado’s Supreme Court will not allow Democratic Gov. John Hickenlooper to stop Republican Attorney General Cynthia Coffman from suing the Obama administration over the Clean Power Plan, Waters of the United States regulation or its fracking rule. -
Southern California Air Quality Board Set to Vote on Stricter Emissions Standards
Dec 3, 2015 | Los Angeles Times
By Tony Barboza
Southern California air quality regulators are expected to adopt their most significant smog-fighting measure in a decade on Friday, overhauling a much-criticized pollution control program that has failed to reach goals pledged years ago to clean the nation's dirtiest air. -
Republicans’ Climate Change Denial Denial
Dec 4, 2015 | New York Times
By Paul Krugman
Future historians — if there are any future historians — will almost surely say that the most important thing happening in the world during December 2015 was the climate talks in Paris. True, nothing agreed to in Paris will be enough, by itself, to solve the problem of global warming. -
Global Warming Sparks Partisan Firestorm on Once-Sleepy House Committee
Dec 4, 2015 | Washington Post
By Lisa Rein
It was once a sleepy Capitol Hill backwater with a reputation for bipartisanship, where freshmen lawmakers would learn the ropes of lawmaking and budgets.
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
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(ACC Mentioned) Film Review: ‘Stink!’
Dec 3, 2015 | Variety
By Nick Schager
Yet another testament to the nonfiction legacy of Michael Moore, “Stink!” embraces the documentary template established by the “Roger & Me” and “Bowling for Columbine” director to alternately exasperating and insightful ends. A look into the fragrance industry and the harmful chemicals it peddles to kept-in-the-dark consumers, Jon J. Whelan’s film has almost no personality of its own, instead hewing so closely to the Moore playbook that it can’t help but feel like an assembly-line work. While its formal tactics are often questionable, its arguments regarding toxic chemical pollutants found in everyday products are lucid and reasonable to the point of being inarguable, and go a long way toward giving it a shot at setting itself apart from the formulaic activist-doc pack upon its Dec. 5 theatrical expansion.
As with most of Moore’s pre-“Where to Invade Next” features, “Stink!” finds its director assuming the spotlight, initially by recounting his concern over a pair of scented pajamas purchased for his daughters for Christmas at a Justice store. This compels Whelan to call various bigwigs at the tween-targeting retailer in order to hopefully deduce the chemicals used in their production. Whelan depicts himself as a just-like-you parent merely concerned about his kids’ well-being, but this intro is quite obviously a calculated charade. Whelan knows he’ll get no answers from this staged-for-the-cameras phone inquiry, and early home-movie footage of his deceased wife makes it clear that she died of cancer, which Whelan blames on toxic chemicals — and thus indicates that he’s after a far larger condemnation of their destructive ubiquity.
Consequently, the filmmaker’s portrait of himself as just a concerned citizen reeks of manipulative affectation, and the ensuing material confirms that suspicion. “Stink!” vacillates between Whelan’s man-on-the-street reportage, human-interest vignettes (in this case, a high schooler who suffers from deadly anaphylactic shock attacks caused by Axe body spray), interviews with consumer-advocacy and health organization experts, and cutesy graphical interludes that make the raft of facts, figures and data about phthalates and endocrine disrupters easy to digest. Except, of course, that many of the revelations proffered, including the toxic components found in newborn infants’ umbilical cords, are apt to leave one sick to their stomach.
To say the film’s construction is unadventurous would be an understatement. And that structural and aesthetic familiarity goes some way toward sabotaging its underlying case, primarily because it makes Whelan’s cause seem like another in an exceedingly long line of anti-corporate, pro-environment grassroots rallying cries — often driven more by passion and scare tactics than logic or evidence — that flood the market on a monthly basis. By the time Whelan is heading out to local legislative meetings to confront lobbyists for the American Chemistry Council, a trade association run by CEO Cal Dooley that throws its financial weight around Washington in an effort to curb chemical transparency measures, the proceedings have devolved into tired Moore mimicry, albeit with more heartstring-pulling courtesy of Whelan’s tale about the tragic loss of his wife.
Nonetheless, though it feels like a been-here, done-that effort in many regards, “Stink!” is bolstered by the fact that it convincingly makes its bedrock contention. As explicated in horrifying detail, consumer manufacturers don’t have to list any chemicals that are used for a product’s odor; rather, they can just list “fragrances” on their labels, and neither the EPA nor the FDA can do a thing about it, all because such potentially toxic stews are protected as proprietary “trade secret” recipes by 1976’s Toxic Substances Control Act (TSCA). What that means is that no one has any idea what’s been used to create shampoos, baby powders, floor cleaners or any other common merchandise unless they have them independently tested at a laboratory — which, as when Whelan does just that with his daughters’ Justice pajamas, often results in discoveries of flame retardants, carcinogens and other terrifying elements.
For all its gimmickry, then, the film ultimately promotes a very simple two-pronged solution: Force companies to disclose the ingredients in their goods, and reform TSCA so that harmful chemicals can be banned from further use. That, in turn, would empower everyone with the ability to make informed decisions about the health risks they choose to assume, and provide substantial government protection for the population at large. No matter its cinematic derivativeness, “Stink!’s” outcry against continuing to use the American citizenry as chemistry experiment guinea pigs carries with it the unassailable whiff of common sense.
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EPA Sets Deadlines For Proposing Rare Bans Of Certain Chemical Uses
Dec 3, 2015 | InsideEPA
By David Reynolds
PA has set deadlines for proposing bans of certain uses of several existing chemicals, including the solvent trichloroethylene (TCE), under the agency's rarely used Toxic Substances Control Act (TSCA) section 6 authority, as part of the agency's focus on better regulating existing chemicals.
The agency is planning to seek public comment in March on proposals to ban certain uses of TCE and the paint-stripping chemicals n-methylpyrrolidone (NMP) and methylene chloride to protect workers and consumers, according to a recent update to the White House Office of Management and Budget's (OMB) website.
EPA has not sought a ban on an existing industrial chemical under its TSCA section 6 authority since its effort to ban asbestos using that authority was rebuffed by the U.S. Court of Appeals for the 5th Circuit in 1991. The court ruled in Corrosion Proof Fittings v. EPA, that the agency had not met its burden of proof that risks from asbestos could not be reduced by other means.
EPA began exploring possible bans on certain uses of the chemicals roughly a year ago, soon after completing separate risk assessments of the uses of TCE, NMP and methylene chloride that found risks to workers and consumers. The agency conducted risk assessments under a novel program seeking to better regulate existing chemicals under current TSCA authority.
EPA considers "existing" chemicals to be those that were already in commerce when TSCA was enacted in 1976. The agency has less authority to regulate them under TSCA than newer substances.
In a recent update to OMB's Unified Agenda (UA), EPA says it is weighing a ban on TCE used in some commercial degreasing operations and as a spotting agent in dry cleaning, as well as in some consumer products. Plans for potential bans on NMP and methylene chloride would target commercial and consumer paint-removing uses.
EPA toxics officials have also also updated schedules for other rulemakings, including efforts to regulate formaldehyde releases from wood products and better assess risks of nanomaterials, as well as plans to reduce pesticides' risks to bees and ensure pesticide applicators have adequate training.
EPA's Office of Pollution Prevention and Toxics (OPPT) reviewed TCE, NMP and methylene chloride at the outset of its novel "work plan" risk assessment program that the agency intends to eventually use to review and potentially regulate uses of dozens of existing chemicals.
Health Risks
OPPT's June 25, 2014, work plan assessment of TCE identified health risks to workers from degreasing in small shops and to consumers using spray aerosol degreasers and spray fixatives. Similar reviews of methylene chloride and NMP, in August 2014 and March 2015, found risks from commercial and consumer paint-removing uses.
"EPA is initiating rulemaking under TSCA section 6 to address these risks, if the EPA finds that there is a reasonable basis to conclude that the risks to human health or the environment are unreasonable," EPA says of the rulemakings.
Other recent updates to OPPT's rulemaking efforts include a deadline for a long-delayed rule regulating formaldehyde air emissions from wood products. Although EPA had a statutory deadline of January 2013, the rule has been delayed, and the agency is now seeking a final rule for May 2016.
The toxics office also has set an October 2016 deadline for finalizing a TSCA section 8(a) rule imposing reporting and record-keeping requirements for nanoscale materials. EPA has said data collected under the rule will inform possible future oversight of the novel substances that aid technology but also may pose health and safety risks.
EPA pesticides officials are seeking to finalize revisions to certification requirements for pesticide applicators by October 2016 and to propose stronger pesticide data requirements to better assess risks to pollinators by July 2016. The plan to propose updates to Federal Insecticide, Fungicide, and Rodenticide Act data requirements is part of a broad federal effort to improve pollinator health, and one of several agency efforts to reduce pesticides' risks to bees.
The toxics office also set deadlines in the spring and summer for finalizing significant new use rules (SNURs) restricting substances used in a variety of consumer products. The SNURs would require manufacturers, importers or processors to notify EPA 90 days in advance so the agency may review the intended practice before it starts.
EPA plans to finalize a SNUR on toluene diisocyanates, chemicals used to make flexible foam, coatings and adhesives by June, and another SNUR, in August, restricting nonylphenols and nonylphenol ethoxylates, a group of 15 chemicals used to make soaps, detergents, latex paints and automotive and lawn care products.
EPA is planning to finalize in March a SNUR restricting the manufacture of certain perfluorinated chemicals, including long-chain perfluoroalkyl carboxylate, the most well known of which is perfluorooctanoic acid, as well as the use of perfluoroalkyl sulfonate chemicals in carpets. The March SNUR is part of an ongoing effort to prevent the use of so-called dead chemicals that are no longer in use or are being phased out by their manufacturers, often as a result of agreements with EPA.
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Why You Should be Worried About Toxic Chemicals in Fragrance
Dec 4, 2015 | Safer Chemicals, Healthy Families
By Alexandra Scranton
Stop to think for a second about how many fragranced products you come into contact with every day. Whether it’s personal care products like shampoo, dishwashing liquid, laundry detergent, perfume, air fresheners, or candles, chances are you are exposed to at least a dozen products that contain fragrance on a daily basis. Unfortunately we are unknowingly being exposed to potentially hundreds of chemicals as a result, some of which are toxic to our health.
Considering we are exposed to fragranced products every day, even for those of us who deliberately don’t use it (we’ve all sat next to that woman or man on the plane who is wearing too much perfume or cologne or been accosted with the heavily scented dryer exhaust of a neighbor) it’s shocking that there are very little regulations addressing chemical ingredients in fragrance.
Companies claim the exact chemicals used in fragrance are a trade secret and therefore don’t have to be disclosed to the public. (Never mind that advances in reverse engineering can quite accurately deformulate fragrances and are often used by fragrance competitors, which makes that argument moot.) Instead, for products that bear an ingredient label, often the single word “fragrance” is used to denote the presence of scent. That single word can be deceiving, as a single listing of “fragrance” can be made up of hundreds of chemical ingredients.
In response to consumer demands for greater transparency, the International Fragrance Research Association (IFRA), an industry-backed trade group, has published a Transparency List of a whopping 3,000 chemicals used in fragrance. This gives us an idea of what may be in fragrance, but the fragrance ingredients are rarely disclosed on a product-specific level, leaving consumers completely in the dark.The fox guarding the hen house.
What’s more, the safety of those 3,000 fragrance chemicals is not adequately evaluated by any governmental agency globally. Instead IFRA and their research arm, the Research Institute for Fragrance Materials(RIFM) have been trusted to self-regulate and to establish their own safety guidelines for the use of fragrance chemicals.
It’s an inherent conflict of interest for an industry to set their own safety guidelines. Our research has found that the “safety standards” set by the fragrance industry are incomplete, biased, and operate with a problematic lack of transparency which far better serves the financial interests of the fragrance industry than protects public health. The IFRA/RIFM safety program is essentially comprised of four main parts:
Peer-reviewed science on fragrance chemicals
Safety assessments conducted by an independent expert panel (REXPAN)
A comprehensive database of toxicological data on fragrance chemicals
IFRA standards determining allowable levels of fragrance chemicals to be used in products
On the face of it, this sounds pretty good. But the reality shows there are significant gaps and loopholes, leaving a program that is simply inadequate to protect public health. For example, most of the basic scientific studies on fragrance ingredients are conducted by fragrance manufacturers and have never been published in a peer-reviewed journal. The peer-reviewed science that RIFM refers to is comprised of review articles that often mention and rely upon the summary results of these unpublished studies. This means there is no peer review of laboratory practices, appropriate controls, levels of significance or any of the hallmarks of authoritative science, to ensure that the results of these studies have not been manipulated to serve the interests of the manufacturer conducting the testing.
The RIFM Expert Panel (REXPAN) is an independent panel of toxicologists called upon to review the safety of fragrance ingredients. Unfortunately though there is a noticeable omission of expert panel reviews of any fragrance chemicals that are controversial, such as phthalates, synthetic musks, styrene, and methyl eugenol. It’s not clear if REXPAN has ever been asked to conduct a review of these controversial chemicals or whether their reviews simply have never been made public. It appears the REXPAN can get away with this because they operate in relative secrecy with no public disclosure of meeting dates, agendas or minutes.
The comprehensive RIFM database does exist, and is apparently full of interesting and pertinent data on the safety of fragrance chemicals. Unfortunately, one must be a dues paying member of IFRA to gain access to the database. RIFM does offer a non-member subscription to the database for the low price of $20,000 per year, but even those requests must first be approved by an industry review panel.Toxic chemicals in fragrance
The IFRA has established the IFRA Standards, a set of voluntary bans and restrictions imposed on 186 specific fragrance chemicals of concern. The Standards are a bold step for a self-regulating industry, but again, there are holes in this process too. Notably, there are no IFRA standards in place for many of the most controversial fragrance ingredients of concern. There are no restrictions in place for the use of the following known carcinogens: styrene, pyridine, or benzophenone. There are no restrictions on the use of phthalates. There are also no restrictions on the hormone-disrupting synthetic musks Galaxolide or Tonalide.
What’s more, the IFRA standards/Code of Practice are voluntary, with little to no compliance verification required. IFRA member companies must comply with IFRA standards to maintain their membership, but compliance with the standards only rarely must be proven.
The strength of the industry’s safety program is also called into question when you consider that more than 100 of the chemicals on IFRA’s Transparency List can be found on authoritative lists of toxic chemicals around the world including:
· California Proposition 65
· National Toxicology Program Report On Carcinogens
· International Agency for Research on Cancer
· EU Annex ii: Chemicals prohibited from cosmetics in the European Union
· Canadian Hotlist-Chemicals prohibited/restricted from cosmetics
· EU Chemicals of Very High Concern
· ChemSec SIN List
· Hazardous 100+ List
These chemicals have been prioritized for review by numerous governmental bodies due to their inherent toxicity– yet these same chemicals do not appear to be prioritized by the IFRA/RIFM safety program.
Bottom line: fragrance has received a free pass for far too long.Need for policy and market solutions
There are several things that need to happen to help ensure the safety of fragrance ingredients:Federal and state legislation is needed that requires product-specific disclosure of fragrance ingredients.Federal and state legislation is needed that requires fragrance to meet an unbiased standard of safety. Senators Feinstein (D-CA) and Collins (R-ME) recently introduced the Personal Care Product Safety Act (S.1014) which seeks to more stringently regulate ingredients in cosmetics.* Unfortunately the bill continues to exclude fragrance from disclosure and therefore also excludes fragrances from safety substantiation requirements.Manufacturers should voluntarily disclose fragrance ingredients on a product-specific basis. Companies such as SC Johnson & Son, RB, and Clorox have already begun to disclose more fragrance ingredients.Manufacturers should develop and disclose their chemical screening processes, detailing how they ensure the safety of their products, including their fragranced products.Big retailers should “mind the store” and adopt comprehensive chemicals policies that include requirements for public disclosure of fragrance ingredients on a product-specific basis, both on product packaging and online. Both Target and Walmart encourage suppliers to disclose fragrance ingredients through their respective chemical policies. Walmart notes in their Sustainable Chemistry Implementation Guide that disclosure should include “full disclosure of all ingredients including those typically protected under trade secrets (e.g. fragrances).“
Without these protections in place we are left with an industry that keeps safety studies hidden from the public, avoids conducting safety assessments of some of the most high profile fragrance chemicals, and greenlights chemicals that reputable authoritative governmental bodies have deemed hazardous.
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House Energy Bill Boosts Cybersecurity for Electric Grid
Dec 3, 2015 | The Hill - E2 Wire
By Devin Henry
A Republican-backed bill overhauling federal energy policy that passed the House on Thursday includes several significant provisions aimed at defending the nation’s power supply against cyberattacks.
The bill passed on a 249-174 vote but faces a veto threat from President Obama.
Included in Rep. Fred Upton’s (R-Mich.) legislation is the creation of a “Cyber Sense” program that would require the Department of Energy (DOE) to identify and promote cyber-secure products intended for use in the bulk-power system.
The bill also requires that both the DOE and electrical utilities create plans to keep power flowing in the event of a cyberattack. In addition, it establishes a grant program for state and local governments to prepare to mitigate power disruptions resulting from a cyberattack.
The bill comes amid growing concerns of power grid vulnerability from both sides of the aisle.
Democratic presidential front-runner Hillary Clinton has called for power grid upgrades to increase cybersecurity in a sweeping energy infrastructure policy statement released in September.
This fall, federal documents obtained through a Freedom of Information Act request revealed that hackers infiltrated the DOE's computer system more than 150 times between 2010 and 2014.
As the department overseeing the country's power grid and nuclear weapons stockpile, the DOE is an attractive target for cyber spies seeking to uncover vulnerabilities.
A 2013 oversight report noted “unclear lines of responsibility” for cybersecurity within the DOE, as well as a “lack of awareness by responsible officials.”
Experts say critical infrastructure sites are increasingly at risk as electric grids get “smarter.”
National Security Agency Director Michael Rogers told lawmakers last fall that China and “one or two” other countries would be able to shut down portions of critical U.S. infrastructure with a cyberattack. Researchers suspect Iran to be on that list.
Upton’s bill faces steep hurdles in the form of Democratic opposition.
Although a stripped-down version passed through an Energy and Commerce Committee subpanel unanimously over the summer, Democrats on Thursday said Republicans had packed the final version with too many provisions they couldn’t support.
The bill “has one central theme binding its titles: an unerring devotion to the energy of the past,” ranking member Rep. Frank Pallone Jr. (D-N.J.) said. “Provision after provision favors an energy policy dominated by fossil fuels and unnecessary energy use. It is the Republican Party's 19th century vision for the future of U.S. energy policy in the 21st century.”
The White House came out against the bill earlier this week, threatening to veto it over several regulatory provisions it includes.
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Congress Passes Highway Bill With Energy Measures
Dec 4, 2015 | BNA Daily Environmental Report
By Rachel Leven, Ari Natter and Amena H. Saiyid
Congress gave final approval late Dec. 3 to a five-year, $305 billion highway bill chock-full of environment and energy provisions and sent it to the president's desk.
The House passed the Fixing America's Surface Transportation (FAST) Act (H.R. 22) by a 359-65 vote, followed by the Senate's passage on an 83-16 vote.
The bill, which includes authorization for hazardous materials transportation programs, would streamline environmental reviews and permitting of certain projects, include a drawdown from the Strategic Petroleum Reserve, alter the Transportation Department's crude-by-rail rule and expand use of certain water infrastructure loans.
The president's signature on the surface transportation bill that authorizes related programs through 2020 will end a string of 36 short-term extensions and will be the longest-term bill that Congress has passed in nearly 20 years.
While Transportation Secretary Anthony Foxx highlighted in a statement the “bumpy road” it took to get to the “not perfect” bipartisan compromise, Senate Majority Leader Mitch McConnell (R-Ky.) said the bill signifies the success of the “new Senate.”
“Tuesday's announcement on the highway bill [the conference report announced Dec. 1] is just the latest reminder of what's possible in a new and more open Senate,” McConnell said on the Senate floor Dec. 3. “It builds the basis for more wins into the future. And most importantly, it's an achievement for the American people—an achievement that only a new Congress has been able to deliver.”
The White House is expected to hold a signing ceremony for H.R. 22 the week of Dec. 7.
Among the key environmental provisions in the bill is the Federal Permitting Improvement Act (S. 280) by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Mo.). The bill 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 (231 DEN A-19, 12/2/15).
The provision had been supported by the U.S. Chamber of Commerce in the past, but it drew fire from environmental groups who largely lobbied to get environmental review and permit streamlining out of the final conferenced bill.
However, one environmentalist previously told Bloomberg BNA that the Senate language was far less problematic than the House version (222 DEN B-1, 11/18/15).
Energy Provisions
The FAST Act also calls for a 66 million-barrel drawdown from the Strategic Petroleum Reserve for an estimated $6.2 billion in sales. That amount represents a compromise from earlier versions of the bill, which would have raised an estimated $9 billion from a 101 million-barrel drawdown, Sen. Lisa Murkowski (R-Alaska), said (231 DEN A-9, 12/2/15).
“The recent series of proposed and enacted drawdowns constitute a fundamental transformation in the purpose and function of the SPR,” Murkowski, chairman of the Senate Energy and Natural Resources Committee, said in a statement.
Additionally, the legislation includes a reauthorization of the U.S. Export-Import Bank, along with language meant to override Obama administration guidance limiting the bank from financing overseas coal-fired power plants.
The provision, authored by Sen. Mark Kirk (R-Ill.), effectively counters Obama administration guidance that said the bank could no longer support new coal-fired power plants in developing nations unless there are no economically feasible alternatives or the plants use carbon capture technologies.
Crude-by-Rail Rule
Included in the bill's hazardous materials section are a number of changes to the Transportation Department's crude-by-rail approach, requiring tank cars to be more protective and pushing the administration to reconsider controversial brake requirements from its already finalized flammable liquids-by-rail rule (RIN 2137-AE91).
That section also included a number of measures coveted by industry such as forcing the Transportation Department to withdraw a proposed “wetlines” rule (RIN 2137-AE53) and blocked a number of industry-opposed proposals from the Obama administration's GROW America Act such as increased civil penalties (224 DEN A-8, 11/20/15).
In water developments stemming from the FAST Act, municipalities will be allowed to use federal infrastructure loans combined with tax-exempt municipal bonds to finance upgrades and expansions to drinking water and wastewater utilities under a legislative fix included in H.R. 22.
The compromise language reached Dec. 1 between House and Senate lawmakers resulted in striking the paragraph in the Water Resources Reform and Development Act of 2014 (Pub. L. No. 113-121) that barred cities from combining the two financing mechanisms (232 DEN A-8, 12/3/15).
Water Developments
The legislative fix to the five-year pilot program known as the Water Infrastructure Financing and Innovation Act (WIFIA) was backed by a bevy of water utility groups including the Association of Metropolitan Water Agencies, American Water Works Association and the National Association of Clean Water Agencies. WIFIA, which was established under the water resources law, is designed to provide U.S. Treasury-backed loans for up to 49 percent of a water infrastructure project that costs at least $20 million.
Also included in the FAST Act was an amendment offered by Rep. Donna Edwards (D-Md.) requiring transportation planning agencies to study and mitigate the impacts of stormwater runoff prior to construction to reduce costs. Edwards's amendment was adopted in the House version on a voice vote and retained in the final conference language (214 DEN A-14, 11/5/15).
Finally, the bill includes a number of smaller provisions, including one that reverses a 2012 provision that capped abandoned coal mine cleanup fund distribution to states and tribes.
The cap was high enough that it only affected Wyoming. The state will now receive the money it missed out on in fiscal years 2013 and 2014 totaling more than $240 million (232 DEN A-25, 12/3/15).
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Congress Fails a Simple Test on Transportation
Dec 4, 2015 | Washington Post
By Editorial Board
House and Senate legislators concluded months of tense negotiations this week, agreeing on a transportation bill that will allocate $305 billion to roads, rails and bike paths during the next five years. Leaders patted themselves on the back for meeting a major national need in a bipartisan way. You can hold the applause.
True, the bill is something of an improvement over Congress’s recent habits. It is long-term, so state transportation planners and businesses can anticipate the size and shape of federal transportation funding a few years out. The bill preserves a sizeable chunk of money for public transit. It includes double-digit-percentage increases in spending on both roads and transit. Meanwhile, it streamlines federal construction permitting. Given the nation’s infrastructure needs, all of that represents progress.
But lawmakers failed a simple test in how to pay for the bill. The federal gasoline tax once funded the national highway tab, and for good reasons: It’s predictable, it’s sustainable and it’s fair, ensuring that drivers pay for the roads according to how much they use them, rather than asking others to subsidize their driving. But Congress hasn’t raised the tax since 1993, letting it languish at 18.4 cents per gallon even as inflation and other factors eroded the value of the revenue it produced. For years, the obvious solution has been to raise the gas tax to a suitable level.
Congress did not embrace the obvious solution. Instead, lawmakers resorted to a variety of gimmicks, one-time funding sources and flat-out bad policies to raise the $70 billion they needed to supplement revenue from a frozen gas tax.
The government will sell several billion dollars’ worth of oil from the Strategic Petroleum Reserve. It will divert money from airline and cruise ship passenger customs fees. Most concerning, the bill shakes down the Federal Reserve. The Fed already remits most of what it earns on its holdings to the treasury, keeping a share to preserve its ability to weather losses and respond to potential crises without printing money. That system has worked well. Now lawmakers will raid the Fed’s surplus account to fund infrastructure and will cap the amount the Fed can hold in the future. Not only is this a poor offset — the government wouldn’t be raising any new money, just moving it from one federal entity with funding needs to another — it is also an awful precedent. The Fed should have the independence to operate with the financial buffer it deems necessary. Its reserves should not be used in a legislative funding shell game.
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(ACC Mentioned) Boiler Rules Besieged in Court by Greens, Industry
Dec 3, 2015 | E&E PM
By Robin Bravender
U.S. EPA's air pollution standards for boilers came under fire from critics today in a federal appeals court.
The agency's rules to clamp down on toxic emissions from large industrial boilers, process heaters and smaller boilers have been mired in legal challenges since they were first issued by the Obama administration in 2011. Today, industry and environmental attorneys alike urged a panel of judges at the U.S. Court of Appeals for the District of Columbia Circuit to determine that EPA's rules are illegal.
Major industry groups -- including the American Chemistry Council, the American Petroleum Institute, the National Association of Manufacturers and others -- argued that the agency's rules are too stringent. Among their complaints are allegations that EPA failed to account for what emissions reductions are achievable by industry and didn't properly budget for malfunctions that can cause emission spikes.
A coalition of environmental groups represented by Earthjustice, meanwhile, argued that the rules are too lax. Among other things, they contend that EPA failed to properly crack down on certain hazardous pollutants and weakened rules by creating too many categories of sources.
The agency set air toxics rules for large sources of air toxics emissions known as "major source" boilers and for smaller "area source" boilers that burn fuels like natural gas, coal, biomass or other fuels to produce steam that provides electricity or heat. The rules' impacts are broad; EPA estimates that there are about 14,000 major source boilers and process heaters in the country located at refineries, chemical plants and other large facilities. There are more than 180,000 area source boilers used in medical centers, educational facilities and other sites.
Legal challenges to the major and area source boiler rules, as well as lawsuits against EPA's pollution standards for commercial and industrial solid waste incinerators, were consolidated into one oral argument heard today by the D.C. Circuit.
"The final rules are flawed," industry attorney William Wehrum told the judges this morning. Wehrum, now an attorney at Hunton & Williams, served as EPA's top air official during the George W. Bush administration. One of industry's central arguments is that the agency's boiler standards failed to accommodate for periods of malfunctions. "In short, things break," Wehrum said.
EPA has said that setting pollution standards that take malfunctions into account would be "wholly impracticable," given the myriad types of malfunctions that can occur. Perry Rosen, a Justice Department attorney representing EPA in court today, suggested that companies operate their facilities in a way that doesn't result in malfunctions.
"That's all you can give them? Just don't make a mistake," joked Judge Thomas Griffith, a Republican appointee.
Judge Karen LeCraft Henderson, another Republican appointee, pressed Wehrum on whether EPA's approach to look at malfunctions on a case-by-case basis in fact violated the court's precedent. "What's wrong with their case-by-case basis?" she asked.
Wehrum replied that companies are entitled to know what would constitute a violation in advance, rather than being allowed to explain any malfunctions in the course of a later enforcement action.
Douglas McWilliams, an attorney at Squire Patton Boggs also representing industry in the lawsuits, complained to judges about EPA's requirements that industry meet pollution limits achieved by the best-performing sources on a pollutant-by-pollutant basis. Industry contends that the agency's approach could have the effect of shutting down a source with the best controls for one pollutant because it doesn't meet the standards for another.
EPA argues that industry's approach would require the agency to establish air toxics rules that are less stringent than what is being done in practice, which runs afoul of the law.
Earthjustice attorneys, meanwhile, have laid out a number of additional concerns with EPA's rules, including a complaint that the agency improperly used carbon monoxide as a surrogate used to measure hazardous air pollution emissions. Environmental attorneys also challenged EPA's creation of subcategories of regulated sources, contending that it would weaken pollution standards by creating groups with less variation in performance and less room to force emissions reductions.
DOJ attorney Norman Rave told the court today that carbon monoxide is an "appropriate substitute" used in EPA's rules. The agency's attorneys have also argued that EPA's creation of subcategories is consistent with the law.
The court is expected to issue rulings within the next year in the three cases: American Chemistry Council v. EPA, U.S. Sugar Corp. v. EPA and American Forest & Paper Association v. EPA.
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(ACC Mentioned) Court Hears Arguments on Boiler, Incinerator Rules
Dec 4, 2015 | BNA Daily Environment Report
By Patrick Ambrosio
Oral arguments on the Environmental Protection Agency's national pollution standards for boilers and incinerators focused on a variety of challenges to the EPA's authority and methodology used to set the standards (U.S. Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, argued 12/3/15; Am. Forest & Paper Ass'n v. EPA, D.C. Cir., No. 11-1125, argued 12/3/15; Am. Chemistry Council v. EPA, D.C. Cir., No. 11-1141, argued 12/3/15).
The U.S. Court of Appeals for the District of Columbia Circuit Dec. 3 heard arguments from a coalition of industry associations that objected to the agency's pollutant-by-pollutant approach to establishing technology-based emissions standards. The court also heard from environmental organizations that objected to the agency's choice of surrogate pollutants and the use of a statistical tool to determine minimum standards that boilers and incinerators must meet.
Judges Karen LeCraft Henderson, Janice Rogers Brown and Thomas Griffith offered little insight during oral arguments on how they will eventually decide on the legality of three separate EPA rules: national hazardous air pollution standards for major source boilers (RIN 2060-AQ25; RIN 2060-AR13), area source boilers (RIN 2060-AM44; RIN 2060-AR14) and commercial and solid waste incinerators (RIN 2060-AO12; RIN 2060-AR15).
The major source boiler standards, commonly referred to as boiler MACT, apply to more than 14,000 existing boilers found at chemical plants, petroleum refineries and other industrial facilities. Facilities must come into compliance with those standards, which the agency estimates will cost $1.6 billion annually, by Jan. 31, 2016.
Industry Objects to Malfunction Provisions
William Wehrum, a partner at Hunton & Williams LLP, started off the three-and-a-half hour oral arguments with an argument that the EPA standards are flawed in their handling of emissions during equipment malfunctions.
Wehrum, who argued on behalf of U.S. Sugar Corp., the American Chemistry Council and other industry petitioners, said the EPA acknowledged that malfunctions will occur but didn't take that fact into account when promulgating emissions standards that apply to boilers at all times. That is inconsistent with statutory language and D.C. Circuit precedent that it would be arbitrary and capricious for the EPA to not accommodate malfunctions in its regulations, he said.
The EPA has faced legal difficulty in its efforts to address emissions during times of startup, shutdown and malfunction, during which emissions may be higher than during normal operation.
The agency included affirmative defense language, which shielded industry from civil penalties related to unavoidable malfunctions, in many of its air toxics rules. However, the D.C. Circuit in 2014 found the EPA didn't have the authority under the Clean Air Act to do so (NRDC v. EPA, 749 F.3d 1055, 78 ERC 1369, 2014 BL 108218 (D.C. Cir. 2014).
Reliance on Enforcement Discretion
Wehrum argued the EPA's reliance on enforcement discretion to address malfunctions is illegal, because the Clean Air Act requires its national hazardous pollutant emissions standards issued under Section 112 to be achievable.
When asked by Brown how else malfunctions could be addressed, Wehrum suggested that the EPA develop a separate standard that facilities must comply with during malfunctions.
Griffith questioned whether it would be possible for the EPA to issue a numeric standard covering malfunctions or if a work practice standard would be more likely. Wehrum said either approach might be possible, though a work practice standard might be more appropriate.
Perry Rosen, a Justice Department attorney representing the EPA, argued there is no data in the record to support promulgation of a separate emissions standard for times of malfunction.
Data Solicitation
Griffith questioned why the EPA can't solicit data from industry on emissions during different types of boiler malfunctions, which then could be used to issue some sort of different standard. He said it was “EPA's fault” that the agency doesn't yet have the data to do so.
Rosen said the case-by-case review of each malfunction, with use of the agency's enforcement discretion, is the most reasonable way for the EPA to address excess emissions due to equipment malfunction.
Griffith said the case-by-case enforcement is “a tough way to go” for industry, because it would be difficult to plan ahead. Rosen responded that the best way for industry to plan would be to operate in a way that minimizes the likelihood of malfunctions.
“That's all you can give them, huh?” Griffith said. “Just don't make a mistake.”
Brown acknowledged that the court has made things somewhat more difficult for the EPA by declaring an exemption isn't allowed under the Clean Air Act.
She questioned whether it would be possible for the agency to collect data that would allow it to set a baseline for emissions during malfunctions. Rosen said it may be a possibility for a work practice standard to be developed if there is a pattern amongst different types of malfunction, but he argued that the EPA had the discretion to take a reasonable approach to malfunctions by utilizing its enforcement discretion on a case-by-case basis.
Judge Cites Deference Doctrine
Industry attorneys raised several additional challenges to the EPA standards, including the agency's decision to take a pollutant-by-pollutant approach to setting maximum achievable control technology (MACT) standards for boilers and incinerators.
Douglas A. McWilliams, a partner with Squire Patton Boggs, argued on behalf of the industry that the EPA's approach was inconsistent with Clean Air Act language requiring the agency to set the MACT floor standards based on the performance of the best-performing sources in a source category.
The pollutant-by-pollutant approach, in which the EPA picked the best performing sources for each pollutant that is directly regulated to calculate the MACT floor, creates a “dilemma” in which a facility that is the best performing source for one pollutant may be unable to meet the standard for a different pollutant, McWilliams said.
Griffith questioned whether the Clean Air Act defined what the word “best” means. He said once the court confronts ambiguous language, it needs to defer to the EPA's interpretation if it's reasonable.
Griffith said he doesn't know why the EPA's pollutant-by-pollutant approach wouldn't be allowed under the Clean Air Act, unless there is evidence that the standards set by the EPA are impossible to achieve.
EPA Given Discretion
Rosen argued that Congress left the determination of what qualifies as the best performing sources up to the EPA.
“Congress expressly left the discretion to the [EPA] administrator,” Rosen said.
Rosen said he wasn't aware of any example where there is “mutually incompatible” control technology that would allow a facility to meet one air toxics standard at the expense of another.
Authority on Assessment Requirement Questioned
Industry also challenged the EPA's authority to require boiler operators to conduct an energy assessment. That requirement goes beyond the scope of EPA's authority under Section 112 because the study goes “far beyond” the boiler that is the source of pollution, said David Friedland, a principal at Beveridge & Diamond P.C.
Friedland, who argued on behalf of the industry petitioners, said the energy assessment requires facilities to conduct a review of everything from lighting to air conditioning use. The EPA is limited under Section 112 to regulating boilers, which the agency has defined as the actual device, not the entire facility that houses the boiler, he argued.
Rosen argued the energy assessment is a “very limited” requirement that only covers things that are directly related to the boiler and reductions in hazardous air pollutant emissions from the boiler. He called the energy assessment the “ultimate common-sense approach” that only requires boiler operators to implement solutions that they find will save them money.
Environmentalists Target EPA Methodology
While industry groups focused on the EPA's authority to take a pollutant-by-pollutant approach and require an energy assessment, the environmental petitioner argued that there were several legal flaws in the methodology used by the agency to set the boiler and incinerator standards.
James Pew, an Earthjustice attorney representing the environmental petitioners, argued against the agency's use of a statistical tool known as an upper prediction limit to set MACT floors for the major source boiler and incinerator standards.
The upper prediction limit is a statistical tool used by the EPA to predict the level of emissions that the “best-performing” facilities in a source category are expected to meet. The D.C. Circuit has previously struggled with the legality of the tool, remanding parts of the agency's sewage sludge incinerator standards back to the EPA due to uncertainty with the agency's statistical methodologyNat'l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 77 ERC 1473, 2013 BL 220506 (D.C. Cir. 2013).
Pew argued that the upper prediction is unlawful because it doesn't represent the average emissions performance achieved by the best performing sources, as required under the Clean Air Act. Instead, Pew said, use of the upper prediction limit resulted in MACT standards set at the upper limit of what the best performing sources would achieve.
Upper Prediction Limit
Pew said the EPA's insistence that the upper prediction limit represents an average “drains the meaning” of the word.
The EPA provided the court with an expanded explanation of the upper prediction limit in July 2014, but Pew said that response did not explain how the results derived from the upper prediction limit represent an average of the best performing sources (136 DEN A-2, 7/16/14).
Norman Rave, a Justice Department attorney arguing on behalf of the EPA, argued use of the upper prediction limit is consistent with the Clean Air Act because it does represent an average of the best performers.
EPA Choice of Surrogate Criticized
Pew also argued the EPA unreasonably identified carbon monoxide as a surrogate for other hazardous air pollutants, saying that was unreasonable. The EPA established carbon monoxide standards in the major source boiler rule to address emissions of organic hazardous air pollutants.
Pew argued that there are data in the record showing that reducing carbon monoxide does not directly corollate with reductions of polycyclic organic matter and other pollutants that the EPA said are addressed by the carbon monoxide standards.
In response to a question by Griffith asking for examples of pollution control technology that control carbon monoxide but not the organic hazardous air pollutants that the rule intends to address, Pew said there are sources that use different control strategies to reduce polycyclic organic matter that have no effect on carbon monoxide emissions.
Rave defended the agency's use of carbon monoxide as a surrogate. Rave told the court the selection of a surrogate pollutant is a “highly technical” decision, for which there is a large burden on petitioners to show the agency acted in an arbitrary and capricious manner.
Rave said there was “nothing in the record” supporting the environmental groups' allegations that carbon monoxide is not an appropriate surrogate.
Judge Questions Excluded Units
The environmental petitioners also challenged the EPA's decision to not regulate burn-off ovens, foundry sand reclamation units and other devices under the solid waste incinerator standards.
Neil Gormley, an Earthjustice attorney who argued on behalf of the environmental groups, said the EPA unlawfully decided to regulate those units, leaving the “vast majority” of units not covered by the EPA incinerator standards. There are thousands of devices that could be covered under those standards, but only 106 are currently subject to the EPA emissions standards, Gormley said.
Rave clarified that the EPA did not exclude those devices from regulation. Instead, the agency has not yet decided whether those devices fall under the definition of commercial and industrial solid waste incinerators, Rave said.
Griffith questioned whether the EPA has plans to regulate emissions from those devices, but Rave said he was not aware of specific plans by the agency.
Gormley said the petitioners would like the court to remand the incinerator standards back to the EPA with instructions to set standards for all commercial and industrial solid waste incinerators. Rave argued, however, that if the petitioners believe the EPA has a mandatory duty to promulgate regulations, the correct venue to hear that legal challenge is a federal district court, not the D.C. Circuit.
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(ACC Mentioned) D.C. Circuit Weighs Major Air Policy Disputes In Combustion Rule Lawsuits
Dec 4, 2015 | InsideEPA
By Stuart Parker
A three-judge U.S. Court of Appeals for the District of Columbia Circuit panel at Dec. 3 oral argument weighed major air policy disputes in lawsuits over EPA's package of combustion emissions rules, including the agency's method for setting air pollution limits and the extent to which EPA can offer some exemptions to those limits.
The panel of Judges Karen LeCraft Henderson, Janice Rogers Brown and Thomas Griffith gave few indications about how they might decide the suits filed by various industry groups and environmentalists over the combustion rules. The rules under litigation are a “major” source air toxics rule for large boilers, an “area” source air toxics rule for smaller boilers and an emissions rule for commercial and industrial solid waste incinerators (CISWI).
But none of the judges questioned the petitioners' legal standing to pursue the cases -- a threshold requirement for filing a suit --- and therefore the court is likely to rule on the merits of the challenges. That means the eventual outcome of the litigation could potentially set important precedent on several air policy issues.
The suit U.S. Sugar Corporation, et al. v. EPA, et al. challenges the major source maximum achievable control technology (MACT) air toxics rule, the suit American Chemistry Council, et al. v. EPA, et al. contests the area source boiler rule, and American Forest and Paper Association, et al. v. EPA, et al. is over the CISWI air rule. The three-judge panel heard all of the challenges to the rules at the same argument.
Environmentalists earlier asked the court to reassign the cases to another panel consisting of Senior Circuit Judge David Sentelle and Judges David Tatel and Robert Wilkins, which in June upheld a related EPA rule on non-hazardous secondary materials in Eco Services Operations LLC v. EPA that defines what is “fuel” for boilers and what is “waste” for destruction under the CISWI rule, which is stricter than the boiler standards.
However, the court denied the motion to reassign the combustion air rule litigation panel, and during argument asked scant questions of the environmentalists represented by Earthjustice attorneys.
Emissions Exemptions
Former Bush EPA acting air chief William Wehrum, now an attorney representing a broad industry coalition, was the first to speak for petitioners at argument. He criticized EPA's decision to strip Clean Air Act exemptions for what he said were uncontrollable high emissions during periods of malfunction from the rules.
The D.C. Circuit in prior rulings has rejected the agency's policies that allowed air law exemptions for pollution spikes during startup, shutdown and malfunction events, as well as a narrower replacement policy offering companies an “affirmative defense” against air law violation charges for such pollution increases. Those rulings have prompted EPA to scrap the exemptions in its rules, including from agency-approved state air plans.
Wehrum, however, said the decision to remove the malfunction emissions increase exemption from the boiler MACT does not comport with the Clean Air Act's requirement that EPA set standards that are “achievable,” which he said means the agency should take malfunction periods into account. “Malfunctions unavoidably occur,” he said. “In short, things break. . . . EPA made an express decision to set standards for periods of malfunction that it knows cannot be met,” he added, saying the rules should be vacated only with respect to their treatment of malfunction periods.
Asked by Griffith whether EPA could account for malfunctions when setting numeric emissions limits, or alternatively under non-numeric “work-practice standards,” Wehrum said both might be possible, but EPA made no attempt to investigate either possibility in the rulemaking.
Griffith summarized Wehrum's argument as: “You can't make an unlawful law lawful by promising to enforce it in a lawful way,” which Wehrum called “exactly right.”
On this point, Department of Justice (DOJ) attorney Perry Rosen on behalf of EPA said that setting standards to include malfunctions in a “one size fits all way” would be impractical, given the wide variety of possible malfunctions, and that trying to include the worst possible malfunction into standards would simply result in weak standards.
Griffith said that “you deal with variability all the time,” but Rosen insisted there is no data set that would allow EPA to develop such standards. “There is no way to analyze that, there is no reasonable way to factor that in.”
'Pollutant By Pollutant'
Meanwhile, industry attorney Douglas McWilliams took aim at EPA's “pollutant by pollutant” approach to setting MACT emissions limits, or “floors,” in the rules. Industry has long argued that EPA's approach of setting MACT floors based on the 12 percent least-polluting existing sources, or the least polluting new source, for any individual pollutant ignores the reality that often no single plant can meet the resulting emissions limits for all pollutants.
Congress in the air law directs EPA to set MACT based on the pollution levels “achieved in practice by the best controlled similar source,” in the case of new sources, McWilliams said, arguing that “best” performing implies least polluting overall. However, Griffith questioned where the air law says “best” means “best overall.”
The judges examined the possibility that a pollution source might be the best performing for one pollutant, but the worst performing for another -- a scenario that both McWilliams and Rosen said was conceivable -- or that control technology for one pollutant might be mutually incompatible with control technology for another. But Rosen said that in general, sources tend not to have such a wide divergence in performance for different pollutants.
Griffith told McWilliams, “I can see your point if it is impossible to do better” for an individual pollutant, but short of that, the case against the pollutant-by-pollutant approach is hard to make.
Earthjustice's James Pew, arguing for environmental groups seeking tougher standards, meanwhile, said that the air law not only allows the pollutant-by-pollutant approach, but actively requires it.
Energy Assessments
David Friedland, representing industry with respect to another set of issues, focused on EPA's requirement for “energy assessments” in the boiler regulations that go beyond an appraisal of the performance of boilers themselves, to include other aspects of a facility's operations that affect the boiler.
Friedland said the assessments unlawfully go “far beyond the source” that is regulated by the air law's air toxics provisions, requiring reporting on many aspects of a plant's operations that may also be covered by other MACT standards. MACT limits apply to types of equipment, Friedland argued, not whole facilities.
He further argued that the assessments do not meet the requirements for a “beyond the [MACT] floor” standard either, and should be vacated.
DOJ's Rosen countered that the energy assessment requirement is “very limited, it is not facility-wide,” and that also the regulated “source” may be defined as the more than just the boiler, to include a whole plant.
There are no numeric emissions limits associated with the assessments, Rosen said, but rather they are designed to help plants save energy, burning less fuel and therefore emitting fewer air toxics. “It is the ultimate commonsense approach,” Rosen said.
Upper Prediction Limit
Pew meanwhile faulted EPA's use of the Upper Prediction Limit (UPL), a statistical method, to set MACT floors. The method is common to several rules, including EPA's landmark electric utility MACT rule.
Environmental groups argue that the UPL is not a true mathematical “average,” which they say is required by the air law when setting MACT floors for existing sources. The method in the boiler rules uses a 99 percent UPL to predict the level of emissions that the agency is confident sources can achieve 99 percent of the time, to account for variability in plant performance. However, Pew said this simply results in weaker emissions limits, flouting the air law.
Despite a previous remand to EPA to better explain how the UPL meets Clean Air Act requirements by the D.C. Circuit in National Association of Clean Water Agencies v. EPA, a case testing air toxics standards for sewage sludge incinerators, the agency still has not explained how the method is an average, Pew said.
Pew further challenged EPA's reliance on carbon monoxide (CO) as a “surrogate” pollutant regulated to limit air toxics, such as polycyclic aromatic hydrocarbons (PAHs). He noted some scientific data to suggest that the relationship between CO and some toxics -- such as formaldehyde -- is not necessarily a straightforward correlation as EPA says.
DOJ attorney Norman Rave, arguing for EPA, said that the use of CO as a surrogate is “a technical judgment that EPA has made,” supported by the technical record, and that the agency is due deference on such questions. He then defended CO as a good barometer of combustion efficiency and the rate at which PAHs and other toxics are destroyed.
Rave defended the UPL as an “average of the best performers” adjusted for “statistical variability,” and said it is beneficial when setting standards using a small sample size of sources.
Pew rejected this in rebuttal, saying Rave's “representation is simply wrong,” because the UPL is an “extreme upper limit,” not an average. Environmental groups therefore want a remand of these aspects of the rule.
CISWI Standards
Earthjustice's Neil Gormley at argument called for a remand of all EPA's standards for CISWI, based in large part on EPA's exclusion of many devices that it is not certain should be classed as CISWI. The incinerators are covered by air law section 129, which is tougher than the section 112 provisions applied to MACT for boilers. Only 106 of thousands of potential CISWI are regulated under section 129, Gormley said.
He argued that EPA unlawfully failed to apply “beyond the floor” standards for CISWI, applying a standard of what is affordable and hence “reasonable” for industry to implement, rather than the “maximum achievable” level of control.
For area source boilers -- those emitting up to 10 tons per year (tpy) of one hazardous air pollutant (HAP) or 25 tpy of a combination of HAPs -- EPA applied work practice standards in lieu of numeric MACT standards. EPA failed to consider the air law's stringency requirements, Gormley said, and therefore “at the very least, that requires a remand.”
Rave countered that there were no beyond-the-floor control options available at reasonable costs. “Petitioners don't really address the reality of these costs,” as required by the air law, Rave said.
He also denied that EPA has taken any judicially-reviewable final decision not to regulate other devices that might in the future be classed as CISWI, such as cyclonic burn barrels or burn-off ovens.
EPA lacks sufficient data to make a determination now, but will ultimately have to, he conceded. Rave also noted that EPA recently completely completed reconsideration of certain issues that were removed from the present litigation, including the agency's use of a 130 parts per million lower detection limit for CO, an issue related to CO's use as a surrogate for HAPs.
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(ACC Mentioned) WtE: A Burning Opportunity
Dec 3, 2015 | Greener Package
By Ben Miyares
The plastic bottle recycling rate in the U.S. is slowing, reducing our resource recovery opportunities.
I drew that conclusion after reading a press release issued by the Association of Plastic Recyclers (APR) and the American Chemistry Council (ACC) last month. The headline on the release—“Plastic Bottle Recycling in U.S. Tops 3 Billion Pounds for First Time”—gives no hint of the slowing that’s taking place.
But a close reading of the 2014 United States National Postconsumer Plastics Bottle Recycling Report,which triggered the release, convinces me that the quest to conserve and recover resources from our packaging production stream needs a boost. The time has come to invest more in waste-to-energy (WtE) facilities in the U.S. so that we can recover more resources, more efficiently, from our packaging discards. This is a matter of particular urgency for flexible packaging, which continues to displace various rigid packaging formats despite the fact that recycling flexible packaging remains a largely unsolved puzzle.
Now in its 25th year, the U.S. plastic bottle recycling report is a comprehensive annual assessment of plastic bottle recycling in America by the Plastics Division of the ACC and the APR. The study measures the amount of high-density polyethylene and polypropylene bottles collected for recycling, as well as the rate of recycling of those bottles. This study includes post-consumer recycling values and comments for PET developed by the National Association for PET Container Resources (NAPCOR) and APR.
The report indicates that more than 3 billion pounds (1.5 billion tons) of plastic bottles were “collected for recycling” in 2014, an increase of 97 million pounds over 2013. But 97 million pounds is the smallest gain in collections for recycling in three years. In 2013 the gain was 120 million pounds over 2012 and the year-over-year gain was 161 million pounds in 2012—a decidedly downward slope.
NAPCOR, which contributed its insight on U.S. PET bottle recycling to the report, notes that the recycling collection rate for PET bottles dipped slightly from 31.2% in 2013 to 31.0% in 2014. The compounded annual growth rate (CAGR) for plastic bottle recycling for the previous 5 years was 4.1%, according to the APR/ACC report, another indication of the slowing trend.
Nearly all (96.9%) of the plastic bottles in the U.S. are made of PET or HDPE. PP is used to blow just 1.9% of them; 0.8% are made of LDPE, and polyvinyl chloride accounts for a mere 0.4% of U.S. plastic bottles. Not surprisingly, PET and HDPE bottles account for 97.2% of those recycled; PP bottles make up a mere 2.6% of the plastic bottle recycling mix. Most plastic bottles in the U.S. are landfilled.
Plastics isn’t the only packaging material that’s landfilled, but it’s the most likely to be dumped. The Environmental Protection Agency says, “Containers and packaging make up the largest portion of municipal solid waste (MSW) generated [in 2013]: 29.8%, or over 75 million tons.” EPA estimates that in 2013 more than 75% of paper and paperboard packaging, 72% of steel packaging (mostly cans) and almost 39% of aluminum packaging, including over 55% of aluminum beverage cans and 34% of glass containers were recycled, but only a little more than 14% of plastic packaging—mostly soft drink, milk and water bottles—and virtually no flexibles—were recycled.
Slightly less than 33 million tons, about 13% of the MSW generated in 2013, was “combusted with energy recovery,” according to EPA. Only “recovery for composting” consumed less (8.8%) of the MSW generated than WtE.
The benefits of WtE processing of waste—particularly “non-recyclable” packaging materials such as multi-material flexible packaging structures—are hard to ignore. They include:
• Generating clean, renewable energy
• Reducing greenhouse gas emissions
• Increasing recycling rates
• Reducing waste volume by up to 90%
• Generating revenue through tipping fees and the sale of recovered metals and renewable energy
Despite these benefits, WtE couldn’t shake its mid-20th century reputation as a “dirty” technology spewing noxious greenhouse gases into the air and leaching toxins into the land and groundwater wherever they were placed. That bad rep and the falling cost of oil that helped keep landfills a cheaper waste disposal option put WtE facility construction on hold until earlier this year. That’s when Palm Beach County, FL, brought the country’s largest, most modern and most efficient energy from MSW plant on stream as Renewable Energy Facility #2.
The Florida plant could become a template for future WtE facilities in the U.S. It also should be a “must see” stop for the Materials Recovery for the Future (MRFF) coalition as they look to create “a mainstream recovery solution for flexible packaging.”
Ben Miyares, Packaging Sherpa, is a packaging market and technology analyst and is president of The Packaging Management Institute, Inc. He can be reached at bmiyares@packmgmt.org.
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EPA Warns Court Against Freezing Climate Rules
Dec 3, 2015 | E&E PM
By Robin Bravender
The Obama administration is asking a federal court not to block its contentious climate rules for power plants while an epic legal battle plays out.
Attorneys representing U.S. EPA submitted an 87-page document to the U.S. Court of Appeals for the District of Columbia Circuit today asking judges to reject requests from state and industry groups to halt the agency's greenhouse gas rules.
Opponents of the rule "seek the immediate and extraordinary relief of a stay," EPA told the court. But those challengers "cannot establish any -- let alone all -- of the elements required."
The states and industry groups asking the court to stay EPA's rules have warned the court that they stand to be immediately and irreparably harmed if the regulations go forward while the litigation proceeds. The court fight is widely expected to drag on for years and could ultimately wind up in the Supreme Court (E&ENews PM, Oct. 23).
The brief offers a glimpse into EPA's strategy for defending its policy in court. It also comes as the administration is touting EPA's greenhouse gas rules during international climate negotiations in Paris.
EPA told the court today that its foes haven't shown that they'll suffer from irreparable harm while the case is pending or that they're likely to prevail on the merits of the case.
Those challenging the rule "have no likelihood of merits success," the agency said, adding that agency's rule is based on "well-established authority" under the Clean Air Act.
EPA also said its challengers "do not face any irreparable harm during the relatively short period of judicial review in this court," noting that states have up to three years to submit plans for complying with the rule's emission guidelines. Or "each state is free to elect to have EPA do all of the work required to adopt and implement standards within the state, in which case the Rule imposes no deadlines or burdens on the state at all."
As for industry challengers, they also "face no imminent harm," EPA said, because the rule "builds on preexisting industry trends" and "movants have no obligations whatsoever until at least 2022," when reduction requirements will begin to be phased in.
Halting the rule would also be contrary to the public interest, EPA told the court, because its rule "will secure critically important reductions in greenhouse gas emissions from the largest emitters in the United States." And "because CO2 in the atmosphere is long-lived, any delay in implementation of the rule and securing these emission reductions is highly consequential."
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House Passes Energy Bill; Quick Senate Action Unlikely
Dec 4, 2015 | BNA Daily Environment Report
By Ari Natter
The House voted Dec. 3 to approve the first broad rewrite of energy policy in nearly a decade, but action on the Senate's version of the omnibus energy bill isn't expected to happen anytime soon.
The House legislation (H.R. 8) was passed by a vote of 249-174, amidst a veto threat and nearly unanimous opposition by Democrats. The bill would expedite the Energy Department's consideration of licenses to export liquefied natural gas, increase security of the nation's electric grid and speed up the review time for federal permitting of natural gas pipelines.
Similar to H.R. 8, the Senate's broad energy bill would expedite the federal approval process for liquefied natural gas exports, but with action unlikely before year's end, consideration of the bill in an election year could be tricky, Cheryl Wilson, a Bloomberg Intelligence Government Analyst, told Bloomberg BNA.
“Even though the Senate's version is less controversial, it will probably similarly attract divisive measures that would make its passage challenging,” Wilson said.
Other highlights of the Senate energy bill, which was easily approved by the Energy and Natural Resources Committee 18-4 in July, include provisions that would strengthen building codes, among other energy efficiency measures, as well as provisions that would increase cybersecurity protections for the electricity grid and expedite the licensing process for hydropower projects.
Robert Dillon, spokesman for Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee and the bill's author, expressed optimism the measure could still see floor action in 2016.
Murkowski Still Committed
“Yes, the chairman is committed to moving EPMA,” Dillon said in an e-mail, referring to the Energy Policy Modernization Act of 2015. “And it is doable in an election year.”
H.R. 8 would also lift the 40-year-old ban on the export of most crude oil after an amendment by Rep. Joe Barton (R-Texas) was adopted by a vote of 255 to 168 (197 DEN A-6, 10/13/15).
Other notable amendments include a measure by Rep. Gene Green (D-Texas), designed to speed the permitting process for cross-border energy projects such as the Keystone XL pipeline. That amendment was adopted by a vote of 263-158.
The underlying bill also would allow the Federal Energy Regulatory Commission to coordinate the states’ water quality certification of hydropower projects.
The Association of Clean Water Administrators, Association of State Wetland Managers and Environmental Council of the States oppose this provision, saying it could override state certification authority granted under Section 401 of the Clean Water Act. Under the law, FERC cannot grant a license to a hydropower project until a state certifies that a federal hydropower project won't violate underlying water quality standards.
H.R. 8, as passed by the House, would allow FERC to issue the license if the state hasn't certified the project by a given deadline (231 DEN A-7, 12/2/15).
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Senate Panel Chair Expects Compromise Energy Bill Next Year
Dec 3, 2015 | The Hill - E2 Wire
By Devin Henry
The Senate Energy Committee chair expects to be able to reconcile her chamber’s bipartisan energy reform bill with a version that passed the House on a nearly party-line vote Thursday.
Sen. Lisa Murkowski (R-Alaska) on Thursday said her energy policy overhaul package should hit the Senate floor in the new year. The bill won a big bipartisan vote in the Energy and Natural Resources Committee this summer, and she expects to be able to craft a similar compromise with House lawmakers later in 2016.
“Obviously we like the Senate bill, we think that has been a good coming together on a lot of these important issues as we modernize our energy policies and strategies,” Murkowski said at an event held by The Hill and sponsored by ABB, Inc. on Thursday.
“I like the Senate bill. I think the House has been working hard and we appreciate that, but absolutely there is room to meld the two together when we get to that point in time.”
Murkowski negotiated her energy reform bill with Sen. Maria Cantwell (D-Wash.), the ranking Democrat on her committee. The Energy Committee approved the legislation on an 18-4 vote in July.
The package includes provisions to speed up liquefied natural gas exports, indefinitely authorize the federal government’s main conservation fund, reform or remove outdated programs and prepare the electric grid for modern needs, among other things.
Rep. Fred Upton’s (R-Mich.) reform bill, which has similar goals but different language, passed the House on a 249-174 vote Thursday, but only nine Democrats voted for it. The White House also threatened a veto over several provisions within it.
Murkowski said she didn’t look to fill the Senate bill with many party-line priorities, such as expanding energy development in the Arctic National Wildlife Reserve. She said she hopes future negotiations on energy policy look like those on education, which yielded a bipartisan overhaul bill that lawmakers hope to send to President Obama next week.
“This bill is not Lisa Murkowski’s perfect bill,” she said. “But I knew there were certain things that were not going to pass muster in that open process.”
Sen. Martin Heinrich (D-N.M.), a member of the energy panel, concurred and said he expects to see a bill land on Obama’s desk next year.
“It’s not an easy time to put together energy legislation,” he said at The Hill's event. “I wouldn’t describe the legislation as sweeping. It has a lot of parts to it, but I think it struck the right balance given where we are today.”
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Environmental, Other Riders Threatening Omnibus Talks
Dec 4, 2015 | BNA Daily Environment Report
By David Schultz
Policy riders on environmental and other issues are causing negotiations over an upcoming omnibus spending bill to stall, casting into doubt whether Congress will be able to clear the bill before government funding expires Dec. 11.
Rep. Betty McCollum (D-Minn.), the top Democrat on the House Appropriations Subcommittee that oversees funding for the Environmental Protection Agency, told Bloomberg BNA that her party rejected a draft version of the omnibus bill that Republicans proposed because it contained too many riders.
Some of these riders would block the EPA from implementing several new environmental regulations on water, ozone and climate change, while other riders would affect gun control policy or the status of Syrian refugees.
McCollum said this draft proposal from the Republicans contained even more riders than were in an EPA funding bill her subcommittee reported out earlier this year (H.R. 2822), which ultimately died on the House floor after a dispute over the display of the Confederate flag (132 DEN A-13, 7/10/15).
She said Democrats have submitted an alternative proposal for the omnibus that is free of the most controversial riders, putting the ball back in the Republicans' court.
Time Seen Running Out
On the Republican side, top-ranking appropriators in both the House and the Senate told Bloomberg BNA that it is still unclear whether an omnibus bill will be introduced on Dec. 7, as was expected by many congressional staffers earlier this week.
If the bill is introduced later than that date, there may not be enough time to get it through procedural hurdles in both chambers before the Dec. 11 funding deadline, which could trigger a government shutdown.
McCollum said the Republican leadership is beginning to talk about passing a second temporary continuing resolution to extend the funding deadline and buy more time to negotiate, but she said Democrats would likely only agree to extending the deadline by no more than one week.
The federal government is operating under a temporary funding resolution that was passed Sept. 30 by outgoing House Speaker John Boehner (R-Ohio) hours before the end of the 2015 fiscal year (190 DEN A-11, 10/1/15).
EPA Funding
In addition to disagreements over riders, Republicans and Democrats have still not come to an agreement over how much funding the EPA should receive for the remainder of the 2016 fiscal year.
Congress reached a new budget agreement on Oct. 30 that provided more funding for the federal government than was in prior iterations of spending bills that were reported out of appropriations committees earlier this year.
Rep. Ken Calvert (R-Calif.), McCollum's Republican counterpart on her House Appropriations subcommittee, told Bloomberg BNA that the two sides are “pretty close on the numbers side.”
However, Calvert declined to say whether the EPA will receive more funding in the omnibus than was included in H.R. 2822 from earlier this year.
Sen. Lisa Murkowski (R-Alaska), who chairs the Senate Appropriations subcommittee that oversees the EPA, said disputes over environmental provisions in the omnibus are proving to be some of the most difficult to resolve in these expansive negotiations over the must-pass federal spending legislation.
“Everybody is working as fast as they can,” she told Bloomberg BNA. “There's not a lot of time left on the calendar. But as long as everybody keeps talking, that's a good sign.”
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Past Administrators Join EPA in Power Plant Lawsuit
Dec 4, 2015 | BNA Daily Environment Report
By Andrew Childers
Two former Environmental Protection Agency administrators appointed by Republican presidents have joined litigation over the Clean Power Plan in support of the agency (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion to participate, 12/3/15).
William D. Ruckelshaus, the agency's first administrator, who was appointed by President Richard Nixon and later served under President Ronald Reagan as well, and William K. Reilly, who was appointed by President George H.W. Bush, filed a motion in the U.S. Court of Appeals for the District of Columbia Circuit Dec. 3 seeking to join litigation over the EPA's carbon dioxide emissions limits for existing power plants as amici curiae.
Touting their experience implementing pollution laws, Rusckelshaus and Reilly said in their motion that “the Clean Power Plan represents the very kind of pollution control program they endorsed while at EPA.”
“It provides for simultaneously pragmatic, flexible, and cost-effective pollution control programs, and it properly respects state sovereignty by providing states with substantial authority and flexibility in deciding whether and how best to administer the Clean Power Plan,” they said. “The Clean Power Plan also falls well within the bounds of an administrator's authority to embrace reasonable interpretations of existing statutory language to address unforeseen problems without the need to resort to congressional amendment of current law.”
The EPA's Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state that would then be implemented by state regulators. The rule, the centerpiece of President Barack Obama's domestic efforts to curb greenhouse gas emissions, has been challenged by 27 states and several industry and union groups.
Both the House and Senate have passed resolutions to overturn the rule as well as similar carbon dioxide emissions limits for new and modified power plants despite Obama's pledge to veto the measures (231 DEN A-2, 12/2/15).
Ruckelshaus and Reilly are represented by Harvard University law professor Richard Lazarus.
EPA Opposes Stay
Opponents of the Clean Power Plan have asked the D.C. Circuit to stay the rule during the upcoming litigation, but the EPA argued in a Dec. 3 response that the petitioners “have no likelihood of merits success.”
Among the criteria for obtaining a stay from the court is proving that the petitioners would suffer immediate and irreparable harm if the rule is allowed to go into effect during litigation and evidence that the challenges are likely to prevail on their merits.
“EPA has well-established authority under Section 111(d) to limit air pollution emitted by power plants, and the [carbon dioxide] performance levels in the rule reflect EPA's thorough, careful and reasonable application of express statutory factors to the particular facts and circumstances of power generation and [carbon dioxide],” the EPA argued.
The agency also disputed states and industry groups' claims that they would be immediately harmed if the rule is allowed to go into effect while the lawsuits are resolved. States must submit their initial compliance plans to the EPA in September 2016, but they can seek a two-year extension, and the agency has made it clear it will readily grant those requests (204 DEN A-12, 10/22/15).
“Moreover, each state is free to elect to have EPA do all of the work required to adopt and implement standards within the state, in which case the rule imposes no dead lines or burdens on the state at all,” the agency said.
Along with the Clean Power Plan, the EPA has proposed a model federal implementation plan (RIN 2060-AS47) for states that choose not to develop their own compliance strategy.
Utilities are not required to comply with the rule until 2022, and then the emissions reductions will be phased in through 2030, the EPA said.
Peabody Challenges New Plant Rule
Peabody Energy Corp. filed a lawsuit Dec. 3 challenging the EPA's carbon dioxide new source performance standards for new and modified power plants (RIN 2060-AQ91).
The rule has also been challenged by North Dakota, Murray Energy Corp., the Energy & Environmental Legal Institute and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers and the AFL-CIO. North Dakota has said it plans to argue that the standards effectively require new coal-fired power plants to use some form of carbon capture, a technology that the state claims has not yet been adequately demonstrated for the purposes of the Clean Air Act (230 DEN A-19, 12/1/15).
Peabody Energy is being represented by Tristan L. Duncan, Thomas J. Grever and Justin D. Smith at Shook Hardy & Bacon LLP and Harvard law professor Laurence Tribe.
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Court: Hickenlooper Can't Block State AG Lawsuits
Dec 4, 2015 | PoliticoPro - Whiteboard
By Alex Guillen
Colorado’s Supreme Court will not allow Democratic Gov. John Hickenlooper to stop Republican Attorney General Cynthia Coffman from suing the Obama administration over the Clean Power Plan, Waters of the United States regulation or its fracking rule.
Hickenlooper had argued that Coffman should not be able to sue the federal government without his permission, but the court didn’t bite.
In a 5-2 order issued today, the court declined to take up Hickenlooper’s petition, pointing to a 2003ruling involving a analogous dispute between then-Attorney General Ken Salazar and then-Secretary of State Donetta Davidson. Coffman cited that case extensively in defending her authority.
The court’s order indicates that Justices William Hood and Richard Gabriel, both Hickenlooper appointees, voted to take the case.
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Southern California Air Quality Board Set to Vote on Stricter Emissions Standards
Dec 3, 2015 | Los Angeles Times
By Tony Barboza
Southern California air quality regulators are expected to adopt their most significant smog-fighting measure in a decade on Friday, overhauling a much-criticized pollution control program that has failed to reach goals pledged years ago to clean the nation's dirtiest air.
The new plan by the South Coast Air Quality Management District would attempt to fix a program that officials acknowledge has it made it cheaper for oil refineries, power plants, factories and other large facilities to buy up rights to emit smog-forming pollution than to clean up their operations
The air district's Regional Clean Air Incentives Market, or RECLAIM, was adopted in 1993 to regulate hundreds of the region's largest-emitting facilities under one of the nation's first cap-and-trade programs.
The program sets a limit on smog-forming nitrogen oxides from each facility, allocates a set amount of credits and requires operators to hold enough of them to cover annual emissions. The credits are tradeable, allowing facilities that pollute less to sell their credits on an open market, where those that pollute more can buy them.
But the South Coast air district's program has long faced criticism for being flooded with too many credits, making it easier for polluters to continue business as usual.
Now, air quality officials want to cut the number of nitrogen oxide emissions credits by half over the next seven years. Lowering the cap, they say, will help drive down smog levels by giving dozens of facilities, including the region's six major oil refineries, financial incentive to upgrade their pollution controls.
The South Coast air district's 13-member governing board is scheduled to vote on the long-debated proposal at a public hearing Friday in Diamond Bar.
Business groups and oil interests have resisted the cuts as too steep too fast, and say the cost of new pollution controls, which air quality officials estimate at $1.1 billion, is too high.
Environmentalists are urging the air board to adopt agency staff's proposal to reduce the supply of emissions credits from 26.5 tons of nitrogen oxides per day to 12.5 tons by 2023.
"The fundamental question is whether the board is going to protect the health of people in this basin or cave to industry," said Angela Johnson Meszaros, an attorney for the nonprofit law firm Earthjustice. "This is the single most important vote to reduce smog that this board will take in this generation."El Niño-fueled summer storms helped reduce smog in Southern California
Southern California air quality officials devised RECLAIM during an economic downturn in the early 1990s, when they were under pressure to make emissions regulations less of a burden on businesses.
They followed the same model the federal government turned to at the time to reduce acid rain-causing sulfur dioxide emissions from the nation's power plants: a market-based approach like the cap-and-trade program that California now uses to target carbon dioxide emissions fueling climate change.
Instead of drafting separate emissions rules for each piece of equipment that releases pollution, South Coast regulators at the time opted to put "the universe of sources on an air pollution diet," said Executive Officer Barry Wallerstein.
The program they established pledged guaranteed pollution reductions every year and flexibility for businesses through a cap on emissions that would decline over time.
But the program has not worked as intended.
The last time air quality officials acted to reduce the cap on emissions in the RECLAIM program, a decade ago, they projected that nitrogen oxides would decline by 7.7 tons per day by 2012. But the program cut pollution by only 4 tons per day by that year — little more than half of what was pledged.
If the district had opted to regulate each pollution source directly, as the Bay Area and other regions have, those emissions cuts would have been assured. Instead, nitrogen oxide emissions from the 275 facilities regulated under the program have remained flat in recent years, even as the region has blown past federal deadlines to clean the nation's worst smog.
Environmentalists and public health advocates blame air quality officials, who they say have given the industry a free ride and put off much-needed reductions in health-damaging smog. They ask why officials didn't act years ago to correct the market.
"RECLAIM was a detour from reducing emissions through direct regulation," said V. John White, a former lobbyist for the South Coast air district and the Sierra Club who now directs the Sacramento-based Center for Energy Efficiency and Renewable Technologies. "It delayed the installation of controls and emissions reductions and damaged public health."
Nitrogen oxides are combustion gases that disperse throughout the region. They cook in the sunlight to form ozone, a lung-damaging component of smog that is linked to asthma, heart disease and premature deaths and is at the nation's highest concentrations in the inland valleys and mountains of Southern California. Decades of regulations have reduced emissions of the smog-forming gas, but South Coast officials say nitrogen oxides must be cut an additional 75% if the region's air is to meet the new federal ozone limit of 70 parts per billion by the 2037 deadline.
The cuts in emissions credits would apply to 56 of the region's largest air pollution sources, falling most heavily on the L.A. Basin's six major oil refineries in El Segundo, Torrance, Carson and Wilmington. Those facilities hold so many pollution credits, regulators say, that they have lagged in installing equipment to scrub and break down smog-forming emissions from massive heaters, boilers and other combustion sources.
Despite a 2005 projection by the air district that Southern California refineries could afford to install 51 pollution-cutting selective catalytic reduction devices, or SCRs, they deployed only four. Now, air regulators estimate, refineries should be able to outfit their operations with 95 SCRs, which are considered long-established, off-the-shelf technology.
The air district has weakened the proposal slightly as it has been developed over the last two years, but business interests have demanded it be scaled back further.
Curtis Coleman, who directs the Southern California Air Quality Alliance, one of the trade groups that have led the fight against the proposal, said recent modifications by the air district have made it even less acceptable to the industry. "That's why our groups are so upset and pushing back so hard."
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Republicans’ Climate Change Denial Denial
Dec 4, 2015 | New York Times
By Paul Krugman
Future historians — if there are any future historians — will almost surely say that the most important thing happening in the world during December 2015 was the climate talks in Paris. True, nothing agreed to in Paris will be enough, by itself, to solve the problem of global warming. But the talks could mark a turning point, the beginning of the kind of international action needed to avert catastrophe.
Then again, they might not; we may be doomed. And if we are, you know who will be responsible: the Republican Party.
O.K., I know the reaction of many readers: How partisan! How over the top! But what I said is, in fact, the obvious truth. And the inability of our news media, our pundits and our political establishment in general to face up to that truth is an important contributing factor to the danger we face.
Anyone who follows U.S. political debates on the environment knows that Republican politicians overwhelmingly oppose any action to limit emissions of greenhouse gases, and that the great majority reject the scientific consensus on climate change. Last year PolitiFact could find only eight Republicans in Congress, out of 278 in the caucus, who had made on-the-record comments accepting the reality of man-made global warming. And most of the contenders for the Republican presidential nomination are solidly in the anti-science camp.
What people may not realize, however, is how extraordinary the G.O.P.’s wall of denial is, both in the U.S. context and on the global scene.
I often hear from people claiming that the American left is just as bad as the right on scientific issues, citing, say, hysteria over genetically modified food or nuclear power. But even if you think such views are really comparable to climate denial (which they aren’t), they’re views held by only some people on the left, not orthodoxies enforced on a whole party by what even my conservative colleague David Brooks calls the “thought police.”
And climate-denial orthodoxy doesn’t just say that the scientific consensus is wrong. Senior Republican members of Congress routinely indulge in wild conspiracy theories, alleging that all the evidence for climate change is the product of a giant hoax perpetrated by thousands of scientists around the world. And they do all they can to harass and intimidate individual scientists.
In a way, this is part of a long tradition: Richard Hofstadter’s famous essay “The Paranoid Style in American Politics” was published half a century ago. But having that style completely take over one of our two major parties is something new.
It’s also something with no counterpart abroad.
It’s true that conservative parties across the West tend to be less favorable to climate action than parties to their left. But in most countries — actually, everywhere except America and Australia — these parties nonetheless support measures to limit emissions. And U.S. Republicans are unique in refusing to accept that there is even a problem. Unfortunately, given the importance of the United States, the extremism of one party in one country has enormous global implications.
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Some of this denial comes from moderate Republicans, who do still exist — just not in elected office. These moderates may admit that their party has gone off the deep end on the climate issue, but they tend to argue that it won’t last, that the party will start talking sense any day now. (And they will, of course, find reasons to support whatever climate-denier the G.O.P. nominates for president.)
Everything we know about the process that brought Republicans to this point says that this is pure fantasy. But it’s a fantasy that will cloud public perception.
More important, probably, is the denial inherent in the conventions of political journalism, which say that you must always portray the parties as symmetric — that any report on extreme positions taken by one side must be framed in a way that makes it sound as if both sides do it. We saw this on budget issues, where some self-proclaimed centrist commentators, while criticizing Republicans for their absolute refusal to consider tax hikes, also made a point of criticizing President Obama for opposing spending cuts that he actually supported. My guess is that climate disputes will receive the same treatment.
But I hope I’m wrong, and I’d urge everyone outside the climate-denial bubble to frankly acknowledge the awesome, terrifying reality. We’re looking at a party that has turned its back on science at a time when doing so puts the very future of civilization at risk. That’s the truth, and it needs to be faced head-on.
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Global Warming Sparks Partisan Firestorm on Once-Sleepy House Committee
Dec 4, 2015 | Washington Post
By Lisa Rein
It was once a sleepy Capitol Hill backwater with a reputation for bipartisanship, where freshmen lawmakers would learn the ropes of lawmaking and budgets.
Now the recent blow-up over climate research on the House science committee is the latest firefight on a panel that’s more partisan and backbiting than ever, members and former staff say.
As Chairman Lamar Smith (R-Tex.) has molded the committee with a more aggressive role in oversight than anyone can remember, he and his Democratic counterpart are feuding openly over what the Committee on Science, Space, and Technology should really be doing: supporting science or debunking it.
The sniping between the lawmakers and their staffs is ratcheting up with Smith’s highest-profile campaign yet, to discredit scientists at the National Oceanic and Atmospheric Administration who published a pivotal study that refuted the idea that global warming had “paused” over the past decade.
In recent weeks, ranking member Rep. Eddie Bernice Johnson (D) a soft-spoken Texan in her 22nd year on the committee, has sent Smith a series of blistering letters denouncing his subpoena of the scientists and other NOAA staff as, alternately, a “fishing expedition,” a “witch hunt” and an “ideological crusade.”
She has branded her colleague’s claims that NOAA altered historical climate data “the most outrageous statements ever made by a Chair of the Committee on Science.”
And Smith, a fellow Texan who rejects the scientific consensus that man-made pollution is behind global warming, has charged back in his own letter campaign, accusing Johnson of a “lack of interest” in oversight of government waste and wrongdoing and a “partisan political allegiance to the Obama administration.”
Even in an era of extreme partisanship on Capitol Hill, the name-calling stands out. The committee that oversees NASA, the National Science Foundation, NOAA and non-defense research and development in much of the rest of the government is more polarized than ever, current and former staff and members say, with the climate talks in Paris only ratcheting up tensions.
Democrats accuse Smith, now in his third year as chairman, of a contempt for the scientific methods and an almost exclusive focus on discrediting the work and gutting the budgets of federal researchers. They say he has sidelined them by using the GOP’s new, unilateral power in this Congress to depose and subpoena federal officials without a vote.
They claim they find out about bills the majority is introducing at the last minute — and are notified of witnesses he has invited to testify at hearings with only a one- or two-day notice, making it hard for them to come up with their own witnesses in time.
“This committee was always considered nonpartisan, looking at the nation’s future,” Johnson said in an interview. “I’ve had people tell me it’s worse now than the Benghazi committee [investigating the deaths of four Americans in Benghazi, Libya]. It’s just as contentious.”
While she said she and Smith have never been personal friends, Johnson described the chairman as “respectful and friendly” toward her during committee hearings.
“Then I get these letters saying I’m just a pawn of the [Obama] administration,” she said. “I don’t even think of the administration. It’s just common sense that would lead you to research what he’s saying versus what the reality is and try to make a comparison.”
Smith, a former chairman of the high-profile House Judiciary Committee, said in a response to e-mailed questions that he has a “long record” of bipartisanship in Congress.
Johnson “consistently argues that the Committee should seek fewer documents and ask fewer questions,” Smith wrote. “Even in the face of possible or admitted wrongdoing, she places political allegiance to the Obama administration before the Committee’s obligation to hardworking taxpayers. This does damage to Congress as an institution and to the trust people have in our federal agencies.”
Smith said it’s Johnson who has failed in her duty to join him in key investigations: Of a 3-million-gallon toxic waste spill in Colorado caused in part by an Environmental Protection Agency contractor, an illegal meth lab at the National Institute of Standards and Technology, a National Weather Service executive who wrote his own lucrative post-retirement consulting contract. Accessibility for screenreader Home Page Politics Opinions Sports Local National World Business Tech Lifestyle Entertainment Video Photography Washington Post Live Live Chats Real Estate Cars Jobs WP BrandConnect Classifieds Partners washingtonpost.com 1996-2015 The Washington Post Terms of Service Privacy Policy Submissions and Discussion Policy RSS Terms of Service Ad Choices
Federal Eye Global warming sparks partisan firestorm on once-sleepy House committee Resize Text Print Article Comments 6 By Lisa Rein December 4 at 6:00 AM
Rep. Eddie Bernice Johnson (D-Tex.) and Rep. Lamar Smith (R-Tex.) (AP, Getty Images)It was once a sleepy Capitol Hill backwater with a reputation for bipartisanship, where freshmen lawmakers would learn the ropes of lawmaking and budgets.
Now the recent blow-up over climate research on the House science committee is the latest firefight on a panel that’s more partisan and backbiting than ever, members and former staff say.
As Chairman Lamar Smith (R-Tex.) has molded the committee with a more aggressive role in oversight than anyone can remember, he and his Democratic counterpart are feuding openly over what the Committee on Science, Space, and Technology should really be doing: supporting science or debunking it.
The sniping between the lawmakers and their staffs is ratcheting up with Smith’s highest-profile campaign yet, to discredit scientists at the National Oceanic and Atmospheric Administration who published a pivotal study that refuted the idea that global warming had “paused” over the past decade.
In recent weeks, ranking member Rep. Eddie Bernice Johnson (D) a soft-spoken Texan in her 22nd year on the committee, has sent Smith a series of blistering letters denouncing his subpoena of the scientists and other NOAA staff as, alternately, a “fishing expedition,” a “witch hunt” and an “ideological crusade.”
She has branded her colleague’s claims that NOAA altered historical climate data “the most outrageous statements ever made by a Chair of the Committee on Science.”
And Smith, a fellow Texan who rejects the scientific consensus that man-made pollution is behind global warming, has charged back in his own letter campaign, accusing Johnson of a “lack of interest” in oversight of government waste and wrongdoing and a “partisan political allegiance to the Obama administration.”
Even in an era of extreme partisanship on Capitol Hill, the name-calling stands out. The committee that oversees NASA, the National Science Foundation, NOAA and non-defense research and development in much of the rest of the government is more polarized than ever, current and former staff and members say, with the climate talks in Paris only ratcheting up tensions. CONTENT FROM Ryder Leave supply chain management to the experts Outsourcing supply chain roles requires active business management and engagement. By Ryder
Democrats accuse Smith, now in his third year as chairman, of a contempt for the scientific methods and an almost exclusive focus on discrediting the work and gutting the budgets of federal researchers. They say he has sidelined them by using the GOP’s new, unilateral power in this Congress to depose and subpoena federal officials without a vote.
They claim they find out about bills the majority is introducing at the last minute — and are notified of witnesses he has invited to testify at hearings with only a one- or two-day notice, making it hard for them to come up with their own witnesses in time.
“This committee was always considered nonpartisan, looking at the nation’s future,” Johnson said in an interview. “I’ve had people tell me it’s worse now than the Benghazi committee [investigating the deaths of four Americans in Benghazi, Libya]. It’s just as contentious.”
While she said she and Smith have never been personal friends, Johnson described the chairman as “respectful and friendly” toward her during committee hearings.
“Then I get these letters saying I’m just a pawn of the [Obama] administration,” she said. “I don’t even think of the administration. It’s just common sense that would lead you to research what he’s saying versus what the reality is and try to make a comparison.”
Smith, a former chairman of the high-profile House Judiciary Committee, said in a response to e-mailed questions that he has a “long record” of bipartisanship in Congress.
Johnson “consistently argues that the Committee should seek fewer documents and ask fewer questions,” Smith wrote. “Even in the face of possible or admitted wrongdoing, she places political allegiance to the Obama administration before the Committee’s obligation to hardworking taxpayers. This does damage to Congress as an institution and to the trust people have in our federal agencies.”
Smith said it’s Johnson who has failed in her duty to join him in key investigations: Of a 3-million-gallon toxic waste spill in Colorado caused in part by an Environmental Protection Agency contractor, an illegal meth lab at the National Institute of Standards and Technology, a National Weather Service executive who wrote his own lucrative post-retirement consulting contract.
Both parties point to limited bipartisan victories, including a law strengthening science, technology, engineering and math (STEM) education and adding computer science to those efforts and a commercial space bill extending some regulations and providing limited property rights for resources extracted from asteroids.
But it’s the basics of scientific inquiry that have upset the relationship between Democrats and Republicans, from Smith’s early effort to put tight reins on the grant-making National Science Foundation by scrutinizing projects it funds to his challenge to coal regulations, which have attempted to discredit studies on the health effects of carbon emissions.
“This was not a deeply polarized committee before,” said David Goldston, who served as chief of staff to former Rep. Sherwood “Sherry” Boehlert, a moderate Republican who was science committee chairman from 2001 to 2006.
“Relations were extremely cordial,” said Goldston, who is now director of government affairs at the National Resources Defense Council. There were some differences on spending levels, agency missions and the direction of research, he said.
But he described the panel’s current Republican majority this way: “I don’t think they think of themselves as anti-science, but as preventing a perversion of science by left-wing ideology.”
And one of the most ideological battles in science now is climate change, the subject of routine hearings on the committee.
On Tuesday, as the climate change summit got underway in Paris, the committee held a hearing titled, “Pitfalls of Unilateral Negotiations at the Paris Climate Change Conference.”
The parties proceeded in parallel universes, with Democrats lobbing questions to their sole (friendly) witness on the economic and environmental benefits of reducing greenhouse gas emissions and Republicans lobbing questions to their three (friendly) witnesses on why Obama’s Clean Power Plan would cost billions of dollars and cause financial hardship for American families, along with no significant benefit to climate change. Accessibility for screenreader Home Page Politics Opinions Sports Local National World Business Tech Lifestyle Entertainment Video Photography Washington Post Live Live Chats Real Estate Cars Jobs WP BrandConnect Classifieds Partners washingtonpost.com 1996-2015 The Washington Post Terms of Service Privacy Policy Submissions and Discussion Policy RSS Terms of Service Ad Choices
Federal Eye Global warming sparks partisan firestorm on once-sleepy House committee Resize Text Print Article Comments 6 By Lisa Rein December 4 at 6:00 AM
Rep. Eddie Bernice Johnson (D-Tex.) and Rep. Lamar Smith (R-Tex.) (AP, Getty Images)It was once a sleepy Capitol Hill backwater with a reputation for bipartisanship, where freshmen lawmakers would learn the ropes of lawmaking and budgets.
Now the recent blow-up over climate research on the House science committee is the latest firefight on a panel that’s more partisan and backbiting than ever, members and former staff say.
As Chairman Lamar Smith (R-Tex.) has molded the committee with a more aggressive role in oversight than anyone can remember, he and his Democratic counterpart are feuding openly over what the Committee on Science, Space, and Technology should really be doing: supporting science or debunking it.
The sniping between the lawmakers and their staffs is ratcheting up with Smith’s highest-profile campaign yet, to discredit scientists at the National Oceanic and Atmospheric Administration who published a pivotal study that refuted the idea that global warming had “paused” over the past decade.
In recent weeks, ranking member Rep. Eddie Bernice Johnson (D) a soft-spoken Texan in her 22nd year on the committee, has sent Smith a series of blistering letters denouncing his subpoena of the scientists and other NOAA staff as, alternately, a “fishing expedition,” a “witch hunt” and an “ideological crusade.”
She has branded her colleague’s claims that NOAA altered historical climate data “the most outrageous statements ever made by a Chair of the Committee on Science.”
And Smith, a fellow Texan who rejects the scientific consensus that man-made pollution is behind global warming, has charged back in his own letter campaign, accusing Johnson of a “lack of interest” in oversight of government waste and wrongdoing and a “partisan political allegiance to the Obama administration.”
Even in an era of extreme partisanship on Capitol Hill, the name-calling stands out. The committee that oversees NASA, the National Science Foundation, NOAA and non-defense research and development in much of the rest of the government is more polarized than ever, current and former staff and members say, with the climate talks in Paris only ratcheting up tensions. CONTENT FROM Ryder Leave supply chain management to the experts Outsourcing supply chain roles requires active business management and engagement. By Ryder
Democrats accuse Smith, now in his third year as chairman, of a contempt for the scientific methods and an almost exclusive focus on discrediting the work and gutting the budgets of federal researchers. They say he has sidelined them by using the GOP’s new, unilateral power in this Congress to depose and subpoena federal officials without a vote.
They claim they find out about bills the majority is introducing at the last minute — and are notified of witnesses he has invited to testify at hearings with only a one- or two-day notice, making it hard for them to come up with their own witnesses in time.
“This committee was always considered nonpartisan, looking at the nation’s future,” Johnson said in an interview. “I’ve had people tell me it’s worse now than the Benghazi committee [investigating the deaths of four Americans in Benghazi, Libya]. It’s just as contentious.”
While she said she and Smith have never been personal friends, Johnson described the chairman as “respectful and friendly” toward her during committee hearings.
“Then I get these letters saying I’m just a pawn of the [Obama] administration,” she said. “I don’t even think of the administration. It’s just common sense that would lead you to research what he’s saying versus what the reality is and try to make a comparison.”
Smith, a former chairman of the high-profile House Judiciary Committee, said in a response to e-mailed questions that he has a “long record” of bipartisanship in Congress.
Johnson “consistently argues that the Committee should seek fewer documents and ask fewer questions,” Smith wrote. “Even in the face of possible or admitted wrongdoing, she places political allegiance to the Obama administration before the Committee’s obligation to hardworking taxpayers. This does damage to Congress as an institution and to the trust people have in our federal agencies.”
Smith said it’s Johnson who has failed in her duty to join him in key investigations: Of a 3-million-gallon toxic waste spill in Colorado caused in part by an Environmental Protection Agency contractor, an illegal meth lab at the National Institute of Standards and Technology, a National Weather Service executive who wrote his own lucrative post-retirement consulting contract.
Both parties point to limited bipartisan victories, including a law strengthening science, technology, engineering and math (STEM) education and adding computer science to those efforts and a commercial space bill extending some regulations and providing limited property rights for resources extracted from asteroids.
But it’s the basics of scientific inquiry that have upset the relationship between Democrats and Republicans, from Smith’s early effort to put tight reins on the grant-making National Science Foundation by scrutinizing projects it funds to his challenge to coal regulations, which have attempted to discredit studies on the health effects of carbon emissions.
“This was not a deeply polarized committee before,” said David Goldston, who served as chief of staff to former Rep. Sherwood “Sherry” Boehlert, a moderate Republican who was science committee chairman from 2001 to 2006.
“Relations were extremely cordial,” said Goldston, who is now director of government affairs at the National Resources Defense Council. There were some differences on spending levels, agency missions and the direction of research, he said.
But he described the panel’s current Republican majority this way: “I don’t think they think of themselves as anti-science, but as preventing a perversion of science by left-wing ideology.”
And one of the most ideological battles in science now is climate change, the subject of routine hearings on the committee.
On Tuesday, as the climate change summit got underway in Paris, the committee held a hearing titled, “Pitfalls of Unilateral Negotiations at the Paris Climate Change Conference.”
The parties proceeded in parallel universes, with Democrats lobbing questions to their sole (friendly) witness on the economic and environmental benefits of reducing greenhouse gas emissions and Republicans lobbing questions to their three (friendly) witnesses on why Obama’s Clean Power Plan would cost billions of dollars and cause financial hardship for American families, along with no significant benefit to climate change.
Rep. Donna Edwards (D-Md.), who is on the panel, said in an interview that the committee is struggling with the ”fundamental question of whether we are going to trust the science that comes from scientists who are really disengaged from politics.”
“Because of the tenor that the chairman has taken, he’s challenged this idea that we’re going to depoliticize science,” she said.
Several Republicans on the committee declined interview requests.
The committee started in 1958 as the Space Committee to oversee NASA, and gradually its science portfolio grew. Today the Democratic and Republican staffs have little contact, current and former staffers said.
“On oversight, there’s not a lot of cooperation for major investigations,” said one Democratic staffer who requested anonymity because of the sensitivity of what he described as strains between the staffs.
“That tradition goes back a long time. Now it’s not unusual for us to find something out through a press release,” the staffer said.
Smith said in an email that the Republicans “always provide the minority with the required notice of committee proceedings in accordance with the Rules of the House. Usually, we provide more notice than required.”
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