Preview Newsletter
ACC PM 12/7/15
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(ACC Mentioned) Several New Members Join Fermilab Board of Directors
Dec 7, 2015 | UChicago News
The Fermi National Accelerator Laboratory is a U.S. Department of Energy laboratory, the leading institution for particle physics research in the United States and one of the leading such institutions in the world. -
House Poised to Vote on Bill Banning Microbeads in Soap
Dec 7, 2015 | The Hill
By Lydia Wheeler
The House is poised to vote this afternoon on legislation to ban plastic microbreads from soaps, body washes and other bath products. -
Check Your Home For Cancer-Causing Radon
Dec 7, 2015 | Environmental Working Group
By Megan Boyle
You’ve installed smoke detectors and tested for carbon monoxide. But could another dangerous gas be sneaking into your home? -
Highway Bill Streamlines Safety Rule for Oil by Rail
Dec 7, 2015 | E&E Energywire
By Blake Sobczak
A $305 billion transportation funding bill that President Obama signed into law last week is set to tweak parts of a sweeping oil-by-rail safety rule enacted earlier this year. -
Health Groups Press EPA for New Methane Emissions Limits
Dec 7, 2015 | E&E Greenwire
By Sean Reilly
U.S. EPA should forge ahead with new emissions limits for methane and volatile organic compounds (VOCs) from existing oil and natural gas operations, similar to what it is already proposing for new sources, more than 600 nurses, doctors and other health care professionals said in a letter Friday. -
Conservative Judge Predicts Court Battle Over EPA 'Co-Benefits'
Dec 7, 2015 | E&E Greenwire
By Robin Bravender
As opponents sparred in court last week over the fate of a major U.S. EPA rule to slash mercury emissions, a federal judge forecast that the next big fight over the rule will center on how the agency measures so-called co-benefits. -
Obama's Cabinet Orchestrates Sales Pitch for Clean Power Plan
Dec 7, 2015 | E&E Greenwire
By Jean Chemnick and Joel Kirkland
President Obama's top advisers have arrived in force here today to begin a final push toward a global climate accord, vowing that U.S. carbon reductions are here to stay. -
S&P Warns Against Politics Thwarting Compliance
Dec 7, 2015 | E&E Energywire
By Rod Kuckro
Compliance with U.S. EPA's Clean Power Plan should not be a hardship as long as politicians "get out of the way" and let state regulators and utilities do what is necessary, says a senior analyst with Standard & Poor's. -
California's Appearance at the Climate Change Talks Belies an L.A. Oil and Gas Health Threat
Dec 7, 2015 | LA Times
By Kelvin Sauls
Gov. Jerry Brown and a delegation of California officials are in attendance at the U.N. climate change conference in Paris. They are there, in part, to tout the state's efforts to cut carbon pollution and simultaneously grow the economy. -
Colo. Seeks Plan-Writing Input, Awaits Western States' Modeling Tool
Dec 7, 2015 | E&E Climatewire
By Emily Holden
The Colorado Department of Public Health and Environment (CDPHE) is busily drafting an initial plan for reducing carbon emissions under U.S. EPA's Clean Power Plan, despite legal challenges being deployed by the state's attorney general. -
NARUC's Kavulla Says Federal Compliance Plan Not Acceptable to States
Dec 7, 2015 | E&E TV
By OnPoint
How are legal challenges to the Clean Power Plan affecting regulators' ability to effectively plan for the future under the rule? During today’s OnPoint, Travis Kavulla, president of the National Association of Regulatory Utility Commissioners and a member of the Montana Public Service Commission, discusses how his state is working toward compliance, while concurrently legally challenging the rule. -
ESA Lawsuit Tests Consultation Mandate For CWA Permitting Exemptions
Dec 7, 2015 | Inside EPA
By David LaRoss
Washington state environmentalists are suing EPA and the National Marine Fisheries Service (NFMS) to force an Endangered Species Act (ESA) consultation on the state's Clean Water Act (CWA) permit rules for commercial salmon farms, part of a push for EPA to more broadly consider state water policies' impacts on ESA listed species. -
Court to Decide Small Question with Big Impact on Obama Rule
Dec 7, 2015 | E&E Greenwire
By Jeremy P. Jacobs and Tiffany Stecker
A federal appeals court will grapple tomorrow with whether to review President Obama's controversial rule defining the scope of the Clean Water Act. -
Wonky Court Battle to Set Path for WOTUS Challenges
Dec 7, 2015 | Politico Pro
By Annie Snider
A fight playing out in a federal courtroom in Cincinnati this week could determine whether the Obama administration will eventually get to defend its landmark water regulation before the Supreme Court.
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(ACC Mentioned) Several New Members Join Fermilab Board of Directors
Dec 7, 2015 | UChicago News
The Fermi National Accelerator Laboratory is a U.S. Department of Energy laboratory, the leading institution for particle physics research in the United States and one of the leading such institutions in the world. For decades, work at Fermilab has led to fundamental discoveries about the elementary building blocks of the universe and likewise about the evolution of the universe. Planning is now underway for Fermilab to build a major facility for the study of neutrinos, one of the most mysterious particles in the universe, enabling it to launch the Deep Underground Neutrino Experiment.
Since the start of 2015, Fermi Research Alliance LLC, a partnership between the University of Chicago and Universities Research Association, has appointed several distinguished new members to its board of directors. Members of the board serve as ambassadors and advisers in support of Fermilab’s ambitious research agenda and play a leading role in the advancement of scientific objectives.
“We are very pleased to welcome these distinguished leaders to the board of directors,” said President Robert J. Zimmer, who chairs the Fermilab board. “Their collective expertise and accomplishments will help to facilitate the lab’s work as a leader in fundamental scientific discovery.”
The newest members of the board are:Sam Pitroda, former adviser to the prime minister of India on public information, infrastructure and innovationSteven M. Ritz, professor of physics and director of the Santa Cruz Institute for Particle Physics, University of California, Santa CruzMaxine Savitz, vice-chair of the President’s Council of Advisors on Science and TechnologyF. Quinn Stepan, chairman of Stepan CompanyJohn Womersley, chief executive officer of the Science and Technology Facilities Council
Members that will join in January 2016 are:Kate Gregory, (rear admiral of the U.S. Navy, ret.), former commander of Naval Facilities Engineering Command and chief of civil engineersRolf-Dieter Heuer, president-elect of the German Physical Society and director-general of CERN, 2009-15
“It is a privilege to be working for such an esteemed group,” said Fermilab Director Nigel Lockyer. “Their engagement reflects well on our laboratory's past achievements and bodes well for our future successes.”
Fermi Research Alliance LLC, the operator of Fermilab for the U.S. Department of Energy, announced in August 2014 that it would restructure its board to better support the laboratory and advance Fermilab’s position as a global leader in high-energy physics—neutrino science in particular. These new members will serve three-year terms as members of the board of directors, which will eventually include up to 15 global business, academic and public leaders.
“This is an exciting time for particle physics in the United States and abroad. Fermilab has all the right ingredients to continue to make important discoveries about our world, train the next generation of scientists and develop cutting-edge technologies that drive innovation and grow the economy. The new board will help us in this endeavor,” said Lou Anna K. Simon, vice chair of the Fermi Research Alliance and president of Michigan State University.
More on the board’s new members:
Katherine L. Gregory was the first female flag officer in the United States Navy Civil Engineer Corps. She served as commander of Naval Facilities Engineering Command and chief of civil engineers, the highest-ranking civil engineer in the Navy, until November 2015. Prior assignments included duty as the Pacific Fleet Engineer and commander of NAVFAC Pacific, supporting the U.S. military's refocusing on the Pacific area, and also as the chief of staff for the First Naval Construction Division during the realignment of military troops from Iraq to Afghanistan. Gregory graduated from the United States Naval Academy in 1982 and has served in roles of increasing responsibility in the United States Navy since 1978 until her retirement at the beginning of November 2015. Gregory will join the board in January 2016.
Rolf-Dieter Heuer is president-elect of the German Physical Society and member of the European Commission’s high-level scientific advisory group. He currently serves as the director-general of CERN, a position he has held since 2009 and from which he will step down in December 2015. For much of his career, he has been involved with the construction and operation of large particle detector systems for studying electron-positron collisions. Prior to 2009, Heuer served as research director for particle and astroparticle physics at the German research laboratory DESY, as a professor at the University of Hamburg, and a staff member at CERN working on the OPAL collaboration at the Large Electron Positron collider. Heuer will join the board in January 2016.
Sam Pitroda, an internationally respected telecom inventor, entrepreneur, development thinker and policymaker, has spent 49 years in information and communications technology and related global and national developments. Credited with having laid the foundation for India’s telecommunications and technology revolution of the 1980s, Pitroda has helped lead the campaign to help bridge the global digital divide. Recently, Pitroda served as adviser to the prime minister of India on public information, infrastructure and innovation, with the rank of a cabinet minister. He has served as the chairman of the Smart Grid Task Force, as well as the committees to reform public broadcasting, modernize railways and deliver e-governance and other developmental activities.
Steven M. Ritz is a professor of physics at the University of California, Santa Cruz and director of the Santa Cruz Institute for Particle Physics. He has conducted accelerator-based experiments at most of the world's leading laboratories. His current interests include dark energy studies using weak lensing and searches for signatures of dark matter. Ritz is involved in several aspects of science policy, including serving as chair of the Particle Physics Project Prioritization Panel. Since 1996, he has been very active in the Fermi Gamma-ray Space Telescope, which has made significant discoveries in a wide variety of topics, ranging from cosmic particle accelerators to searches for signals of dark matter and tests of fundamental physics. He is now the Large Synoptic Survey Telescope Camera Project Scientist. Ritz is a fellow of the American Physical Society and a recipient of the NASA Outstanding Leadership Medal.
Maxine Savitz serves as vice-chair of the President’s Council of Advisors on Science and Technology. She is the former deputy assistant secretary for conservation in the U.S. Department of Energy. She received the Outstanding Service Medal from the DOE in 1981. Prior to her DOE service, she was program manager for Research Applied to National Needs at the National Science Foundation. Following her government service, Savitz served in executive positions in the private sector, including president of Lighting Research Institute, assistant to the vice president for engineering at The Garrett Corporation and general manager of Allied Signal Ceramic Components. She retired from the position of general manager for technology partnerships at Honeywell. She served as vice president of the National Academy of Engineering from 2006-2014.
F. Quinn Stepan, chairman of Stepan Company, has worked for the company founded by his father, Alfred C. Stepan Jr., since 1961. During this time he held various executive leadership roles, including chief executive officer, president and chief operating officer, and director of the company. During his leadership, the company has grown in size and stature to a $1.5 billion enterprise, with 2,100 employees and 19 manufacturing facilities around the world. Stepan Company, based in Northfield, Ill., is one of the largest global manufacturers of surfactants and polyester polyols. Stepan is a former chairman of the Soap and Detergent Association’s board of directors and served on the board for seven years. In addition to SDA, he took active roles in a number of industry organizations, including the American Chemistry Council, the Chemical Industry Council of Illinois and the Illinois Business Roundtable.
John Womersley is chief executive officer of the Science and Technology Facilities Council, the United Kingdom’s funding agency for Big Science. A graduate of Cambridge and Oxford universities, he has played a leading role in particle physics both in Europe and the United States. He worked at Florida State University and Fermilab and was a scientific adviser to the U.S. Department of Energy. Womersley's scientific achievements include his time as spokesperson for Fermilab's D-Zero experiment, when he coordinated analysis and publications, including placing the first experimental particle physics paper inNature for more than 70 years. He was the lead author of numerous scientific papers analyzing the properties of high-energy particle collisions and searching for the Higgs boson and other new physics phenomena. He has more than 600 articles published in refereed journals, including the co-discovery of the top quark in 1995.
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House Poised to Vote on Bill Banning Microbeads in Soap
Dec 7, 2015 | The Hill
By Lydia Wheeler
The House is poised to vote this afternoon on legislation to ban plastic microbreads from soaps, body washes and other bath products.
The House Energy and Commerce Committee passed the environmentally conscious bill last month introduced by Rep. Frank Pallone Jr. (D-N.J.) in an effort to protect the nation’s lakes and streams from piling up with these little pieces of plastic.
Because these beads, which are often used to exfoliate the skin, are less than five millimeters in size, they escape water filtration systems and end up in bodies of water where they are mistaken as food by fish and wildlife.
In passing the legislation last month, the House committee approved a technical amendment to clarify that toothpaste is considered a rinse-off cosmetic that’s covered under the bill, which has 36 co-sponsors, including five Republicans.
A companion bill has also been introduced in the Senate by Sens. Debbie Stabenow (D-Mich.) and Gary Peters (D-Mich.), who are concerned about protecting the nation’s Great Lakes.
A report earlier this year by the State University of New York in Fredonia found anywhere from 1,500 to 1.1 million microbeads per square mile in the world's largest source of freshwater.
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Check Your Home For Cancer-Causing Radon
Dec 7, 2015 | Environmental Working Group
By Megan Boyle
You’ve installed smoke detectors and tested for carbon monoxide. But could another dangerous gas be sneaking into your home?
Radon is a radioactive gas that forms naturally as uranium decays in soil. It seeps into homes from the ground or from well water through gaps in the foundation or cracks in the building.
There is no safe level of exposure to radon, which is known to cause lung cancer. The Environmental Protection Agency estimates that radon trapped in indoor air causes about 21,000 deaths a year from lung cancer. Radon is second only to smoking as a cause of this fatal disease.
Because it occurs in almost all types of soil, radon can build up in nearly every type of home, old or new. But some areas are more at risk than others. Click hereto view a map of high radon areas.
Evidence is also mounting that homes located close to fracking operations are at greater risk. A recent study by the Johns Hopkins Bloomberg School of Public Health found that typical radon levels increased in houses in some Pennsylvania counties during an eight-year period of intense fracking development.
In November, 11 national organizations, led by the American Lung Association, came together to announce a new action plan for reducing radon exposures. Called the National Radon Action Plan – A Strategy for Saving Lives, it calls for precautionary measures aimed at saving 3,200 lives a year by 2020 – a sure step in the right direction.
EPA estimates that nearly 1 in every 15 American homes has elevated radon. What can you do to protect yours?
Test your home. Like carbon monoxide, radon has no taste or smell, so it’s nearly impossible to detect without a test kit. If you’ve never tested your home, do so. You should also re-test your home for radon if you begin using a previously unoccupied lower level or basement. If you’re buying a new home, request results of tests done within the past two years.
Luckily, testing is easy and inexpensive. To find a test kit, contact your local home improvement store or the National Radon Program Services program at Kansas State University, which sells discounted kits online. Click here to learn about radon requirements in your state and whether your state provides free or discounted kits to residents.
Know your limits. Although EPA’s threshold level for taking action to reduce radon is 4 picocuries per liter or higher, your family may still be at risk even if your number is below that. EPA recommends that homeowners consider making modifications to their homes if the radon level is anywhere between 2 and 4 picocuries per liter. The good news: Effective measures to lower radon can reduce your home’s level by as much as 99 percent, and there are a variety of options to match your budget.
Consult a professional. To learn more about the risks of radon in your home or fixing high levels, contact a trained professional. Good sources include theNational Environmental Health Association National Radon Proficiency Program and the National Radon Safety Board. You can also call the National Radon Information Line at (800) SOS-RADON.
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Highway Bill Streamlines Safety Rule for Oil by Rail
Dec 7, 2015 | E&E Energywire
By Blake Sobczak
A $305 billion transportation funding bill that President Obama signed into law last week is set to tweak parts of a sweeping oil-by-rail safety rule enacted earlier this year.
The five-year highway reauthorization, dubbed the "Fixing America's Surface Transportation Act," or the FAST Act, would close what critics saw as a loophole in new Department of Transportation regulations to retire older, explosion-prone tank cars.
Recent crude and ethanol rail accidents, including a 2013 oil train derailment and explosion in Canada that killed 47 people, have drawn heightened scrutiny to tank car safety across North America.
In a rule responding to these disasters, DOT set deadlines for phasing out certain tank car models from crude, ethanol or flammable liquid service. The complex schedule drew criticism from many industry and environmental groups for its scope: The rules apply only to "high-hazard" trains with 20 or more crude-laden tank cars in a row, or 35 cars total spread throughout the train. There is an additional category for high-hazard flammable "unit" trains of 70 or more loaded cars.
The FAST Act cuts through these distinctions by requiring all tank cars to be upgraded by DOT's deadlines "regardless of train composition." The bill nixes the ability for shippers to keep using outdated tanks by stringing 19 or fewer cars together, dodging DOT's threshold.
Oil and tank car industry sources said the legislation will do little to change shippers' approach to the tank car deadlines, the first of which looms in 2018. Tom Simpson, president of the Railway Supply Institute, noted that tank car owners don't get to decide how their equipment is assembled into a train. To be on the safe side, they would treat the deadlines as though they applied to all cars, the logic goes.
Simpson said he thought DOT's "high-hazard" designations "were unworkable, in that any tank car at any time could be in a unit train."
In the first quarter of 2015, about 100,000 shipments of flammable liquids moved in small batches that would not have fallen under DOT's rule, according to figures from the Association of American Railroads. AAR has also supported the FAST Act on the grounds that it closes a "gap" in DOT's original approach, a spokesman noted.
"The AAR's position has always been that the tank car rule was a good start, but didn't advance safety as much as it could," the trade group's president, Ed Hamberger, said in a statement last week (E&E Daily, Dec. 3).
Enacting the FAST Act puts the United States on a closer footing with Canada, where tank car rules apply to all cars carrying crude, not just groups of 20 or more (EnergyWire, June 18).
Karen Darch, village president of Barrington, Ill., which has seen various hazardous liquid traffic pass by in the past, said she was "really pleased that the legislation does cover that loophole."
"It makes the law apply to all tank cars, so we were really happy to see that, as well as a few other parts of the FAST Act that went beyond where the rules are," she said.
Those areas include adding "thermal blankets" on new tank cars to lower the chance of a breach in a fire. The bill also requires extra top fittings protection for older cars that get repairs.
Finally, the legislation gives chemical shippers until 2029 -- an extra four years compared to DOT's rule -- to fix or scrap older-model cars used for less-flammable liquids. An industry source said the updates provide some welcome "breathing room" for repairing cars that aren't hauling crude or ethanol.
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Health Groups Press EPA for New Methane Emissions Limits
Dec 7, 2015 | E&E Greenwire
By Sean Reilly
U.S. EPA should forge ahead with new emissions limits for methane and volatile organic compounds (VOCs) from existing oil and natural gas operations, similar to what it is already proposing for new sources, more than 600 nurses, doctors and other health care professionals said in a letter Friday.
"We need comprehensive rules that cover existing oil and gas wells and infrastructure to reduce methane emissions and the impact on climate," the signers told EPA Administrator Gina McCarthy. "We unite in urging EPA to move quickly to address emissions from existing sources as well."
The letter, released late Friday by the American Lung Association, fell on the final day for public comments on EPA's draft regulations to limit methane and VOC releases from new and modified oil and gas operations. Among other features, the draft, unveiled in mid-August, would require the industry to find and repair leaks and limit emissions from equipment used at natural gas transmission compressor stations (Greenwire, Aug. 18).
In a news release today, the Interstate Natural Gas Association of America, which represents the pipeline industry, expressed particular concern with that facet of the proposed regulations, warning that they could lead to increased methane emissions because operators would often have to "blow down" pipelines or compressors to make repairs. The news release followed some 80 pages of comments filed by the association Friday.
The oil and gas sector is the nation's largest industrial source of methane, a greenhouse gas that EPA ranks as 25 times more potent than carbon dioxide in its global warming potential. In September, the top lawyer for the agency's Office of Air and Radiation said it will become clear within the next few years whether the proposed methane rules should be broadened to cover existing facilities.
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Conservative Judge Predicts Court Battle Over EPA 'Co-Benefits'
Dec 7, 2015 | E&E Greenwire
By Robin Bravender
As opponents sparred in court last week over the fate of a major U.S. EPA rule to slash mercury emissions, a federal judge forecast that the next big fight over the rule will center on how the agency measures so-called co-benefits.
The U.S. Court of Appeals for the District of Columbia Circuit is grappling with how to handle EPA's standards to cut power plants' emissions of mercury and other hazardous pollutants after the Supreme Court earlier this year ruled that the agency had failed to properly consider costs before it issued the rule.
During oral arguments before the appeals court Friday, Republican-appointed Judge Brett Kavanaugh pointed to concerns raised by Supreme Court Chief Justice John Roberts with EPA's practice of counting health "co-benefits" in justifying the economic impacts of its clean air rules. Those are health benefits not directly attributable to reductions in mercury.
"He referred to that as an end-run and bootstrapping and disproportionate," Kavanaugh said of Roberts' comments. "I assume that's going to be the key battleground six months, a year from now, will be whether co-benefits are properly part of the analysis or not."
Kavanaugh and two of his Democratic-appointed colleagues are now weighing a request from industry and states to vacate EPA's rule while the agency brings it in line with the Supreme Court's ruling. But the three-judge panel on Friday appeared reluctant to gut the rule, in part because much of the industry has already made investments to comply with the standards and because EPA appears poised to reissue the same standards with revised considerations of costs (Greenwire, Dec. 4).
The agency has committed to fully addressing the high court's concerns by April 15, and EPA issued a proposed finding last month concluding that the benefits of its mercury standards justified the costs of the rule.
If the court agrees to keep the rule in place while EPA tweaks its finding, states and industry could return to court to challenge that finding. Kavanaugh and others have predicted that EPA's assessment of co-benefits will be a key part of their arguments.
"I think there is a pretty good chance that that will be front and center if there is a challenge" to EPA's finding that it is appropriate and necessary to regulate power plants' mercury emissions, said Jeff Holmstead, an industry attorney at Bracewell & Giuliani LLP who served as EPA's air chief during the George W. Bush administration. "A lot of people, including me, have been pretty critical of EPA relying on co-benefits to justify pretty much everything, including the Clean Power Plan."
The Clean Power Plan aims to slash greenhouse gas emissions from existing power plants. EPA has predicted the rule will lead to big cuts in soot and smog, curbing emissions of sulfur dioxide, nitrogen oxides and particulates along with reducing heat-trapping carbon dioxide. Industry contends that EPA's reliance on co-benefits double-counts health benefits for reductions of pollutants that aren't the regulation's focus.
Whether the co-benefits issue comes up in the mercury case or elsewhere, Holmstead said, "I think it will find its way into the courts."
EPA's analysis of the mercury rule found that it would cost industry $9.6 billion a year, while overall benefits would tally as much as $90 billion annually. Of those total benefits, up to $6 million would come from reduced mercury pollution. Most of the rest of the monetary benefits would stem from reductions in particulate matter, a pollutant that is not a target of the mercury rule.
During oral arguments in March, Roberts grilled the Obama administration's solicitor general, Donald Verrilli, about the analysis, suggesting EPA was using the mercury rule to get reductions in particulate matter that it wouldn't be able to otherwise under the Clean Air Act.
"It's a good thing if your regulation also benefits in other ways," Roberts said. "But when it's such a disproportion, you begin to wonder whether it's an illegitimate way of avoiding the different -- quite different limitations on EPA that apply in the criteria program."
Earthjustice attorney Jim Pew said EPA "doesn't have to consider benefits at all to satisfy the Supreme Court decision," and said industry challenges to the agency's calculations of co-benefits are "extraordinarily disingenuous."
John Walke, an attorney at the Natural Resources Defense Council, said Kavanaugh's comments Friday "could be him signaling reservations about EPA's co-benefits." But more likely, he said, it "reflects that industry has been raising that issue from day one."
Kavanaugh was the lone judge to dissent in the appeals court's divided ruling last year that upheld EPA's mercury rule before the high court shot it down.
But while Kavanaugh "has shown himself skeptical of EPA's position in this rulemaking and other rulemakings," Walke said, his "remarks from the bench won't influence what industry will do at all because they have already been doing what he is forecasting."
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Obama's Cabinet Orchestrates Sales Pitch for Clean Power Plan
Dec 7, 2015 | E&E Greenwire
By Jean Chemnick and Joel Kirkland
President Obama's top advisers have arrived in force here today to begin a final push toward a global climate accord, vowing that U.S. carbon reductions are here to stay.
U.S. EPA Administrator Gina McCarthy, Energy Secretary Ernest Moniz and Secretary of State John Kerry are among the administration officials who have joined 40,000 national delegates, global warming activists and journalists gathering in this Paris suburb. Agriculture Secretary Tom Vilsack and Interior Secretary Sally Jewell participated in the first week of the U.N. summit but have since departed.
The administration's collective task is to convince a skeptical world that Obama's Climate Action Plan will survive his presidency, and it has them singing from the same hymnal.
In an interview with Greenwire, McCarthy said interagency cooperation was strong in the run-up to the conference because securing an agreement is such a vital part of Obama's legacy.
"It has been incredibly seamless in terms of both planning for this event and working it through," she said. "We have coordinated doing energy Cabinet meetings totally focused across the administration on Paris."
Agencies have held a morning phone call in the lead-up to the conference to make sure they're all on the same page, and the White House has been offering guidance. "Our communications people talk to each other," McCarthy said.
McCarthy and Moniz took the same United Airlines flight Friday night, as did White House Council on Environmental Quality chief Christy Goldfuss. After landing at Charles de Gaulle Airport on Saturday morning, they made their first appearances jointly later that day, where the Cabinet members pledged the United States would make good on its commitments to cut greenhouse gas emissions.
McCarthy and Moniz told their international audience that federal carbon regulations are legally enforceable, even if Congress isn't happy with the policy and a hostile Republican president is elected in 2016.
"We have political realities in terms of how we can move forward," Moniz said today. "The president made clear -- and I think it's very important -- that ultimately we do eventually have [to have] legislation that provides an economywide approach. But in the meantime, we will emphasize executive authorities that already exist for meeting our ambitious targets."
EPA's Clean Power Plan rule to cut emissions across the electricity sector is a core policy component supporting the U.S. commitment ahead of the Paris talks to reduce emissions at least 26 percent below 2005 levels by 2025. The U.N. climate summit, led by France, is pressing for an agreement by the end of this week.
"This rule is going to stand the test of time," McCarthy said, referring to the Clean Power Plan regulations. "This rule, despite what one might read, is being actively engaged in by every state in the United States."
McCarthy and her air policy chief, Janet McCabe, who is also in Paris, have been the administration's top salespeople on climate rules for the past two years, after Obama directed the agency to get moving on power-sector regulations. As the talks enter their critical second week, McCarthy said one of her roles will be to meet with delegations and answer questions about her agency's flagship climate policy.
The power-sector regulation faces stiff opposition from Republican-led states in the South and other coal-dependent states. There are court challenges and vows to overturn the rule from nearly every candidate for the Republican presidential nomination.
But McCarthy, McCabe, White House senior climate and energy adviser Brian Deese, Senate Democrats and even some friendly electric utilities are trying to beat back any narrative that the United States might ultimately default on its climate commitments, walking away from a Paris deal as it did from the Kyoto Protocol.
McCarthy has been meeting with counterparts from other countries since the Clean Power Plan was first proposed in 2014, and many of the heads of delegation here in Le Bourget are now acquaintances.
"We have had a steady stream of countries coming in asking to understand it, is it going to last, what are all these lawsuits, what is Congress doing?" she said. She said the international community generally accepts that the rule is likely to withstand the coming challenges.
"EPA is recognized for its technological expertise in this area, as well as how well we do defending the Clean Air act and our actions," she said.
The White House has engaged extensively with China and India, the world's first- and fourth-largest carbon emitters, in hopes of paving the way for a climate deal. For that, it had to convince leaders of both countries that the U.S. economy will adopt carbon controls.
It's trying to shift discussions to the U.S. priorities for a final agreement, including establishing a five-year review period and an accountability system for checking nations' progress on cutting emissions.
Taking the stage in a grand hall inside the 19th-century Petit Palais art museum, before loud applause from global warming activists, Kerry hammered home the U.S. position that both industrialized and rich developing nations such as China and South Korea are equally responsible for slashing greenhouse gas emissions.
"We feel very strongly in the United States that in 2015, it is time to get rid of this rigid differentiation between developed and developing," Kerry said.
"It does no good to come to Paris and have a great big meeting and get out of here and say 'there are a lot of goals' if they're not being implemented and you're not moving down the road."
Kerry spoke about the need for the largest-emitting nations to play an active role in cutting emissions. The issue about "differentiation" is a critical paradigm shift for the U.N.-sponsored talks. China, India, Brazil and other big developing countries for the past two decades have insisted on being treated differently. That was put into place in the 1990s as the path forward.
Also today, former California Gov. Arnold Schwarzenegger (R) made a rousing speech before the plenary of international delegates. Meanwhile, back in a decked-out museum in central Paris, California's current governor, Jerry Brown (D), and energy-sector CEOs rallied activists.'U.S. has taken clear action'
Any hope of Congress forging a political consensus around carbon came to a screeching halt after Obama returned from the last major U.N. climate summit in 2009. In 2010, the Senate let a House-passed carbon cap-and-trade bill die.
That history -- and the long memories of delegates who recall Senate Republicans' refusal to ratify the Kyoto accord in 1997 -- is some of the context around the administration's presence here.
"The U.S. has taken clear action," said McCabe, EPA's assistant administrator for air and radiation. "It's important that people see the United States has done that."
In a panel discussion sponsored by the Edison Electric Institute, PG&E Corp. CEO Anthony Earley said cutting U.S. emissions will rely on electric utilities and states driving toward the Clean Power Plan's target: cutting power emissions 32 percent below 2005 levels by 2030.
"From a deployment standpoint, we've shown that utilities are really the perfect organizations to leverage the scale we have in accelerating the transformation of the system."
And Earley leaned on the notion that utilities -- under some pressure from rooftop solar companies and other distributed generators -- are still the backbone of the system, warning that policymakers shouldn't "take it for granted."
The cost of implementing changes is "manageable," he asserted.
Multiple threads of discussion around deployment of energy technology are going on across Paris. And leaders here say "signals" are needed for the private sector to start spending billions on energy technology needed by India and other large developing countries.
Microsoft co-founder Bill Gates partnered with Moniz and the White House on a public-private partnership deal designed to raise billions of dollars through 2020. It would couple billions of dollars in investment from the wealthiest people in the world with a doubling of research and development spending by 20 nations. Under the plan, U.S. R&D spending on cleaner forms of energy technology would go from about $2 billion to $5 billion.
On a separate track is a call for $100 billion in financing for poor and developing countries to deploy new technology and protect themselves from the worst effects of global warming.
As this is happening, the small cadre of U.S. utility officials -- mostly sustainability officers -- is talking about Clean Power Plan implementation.
In California, deploying massive amounts of solar and wind power could eventually require a regional Western market, Earley told Greenwire.
"We need to create regional electricity markets," he said. "The hallmark of renewables is that they're unpredictable; we don't control them. If you have a regional market, we'll be better able to trade this clean energy."
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S&P Warns Against Politics Thwarting Compliance
Dec 7, 2015 | E&E Energywire
By Rod Kuckro
Compliance with U.S. EPA's Clean Power Plan should not be a hardship as long as politicians "get out of the way" and let state regulators and utilities do what is necessary, says a senior analyst with Standard & Poor's.
The ratings agency's analysis, "What the Final Version of the EPA's Clean Power Plan Is Likely to Mean for U.S. States and Industries," calls the Clean Power Plan the "most ambitious effort" to tackle climate change since the Clean Air Act of 1990.
And as the rule plays out, S&P says, "we expect the credit implications for several energy-related industries to be significant and lasting (if not immediate)," with some positive and some negative.
And while the coal industry is a leading candidate to experience negative consequences as natural gas use becomes more prevalent, S&P predicts coal will still play a significant role in generating electricity in 2030, when the EPA rule is supposed to be implemented fully.
"This is the sort of thing where politicians have to get out of the way," said Michael Ferguson, associate director with Standard and Poor's Utilities and Infrastructure Group. "The market is moving in this direction anyway. There's no question about that. This has been happening for years," he said in an interview last week.
Investor-owned utilities "have the ability to be proactive on this. I think the ones who are well-managed will do that because it gives them the chance to influence policy. But on top of that, it gives them the chance to put into rate base assets that they probably believe they need anyway," Ferguson said.
"All this can be largely beneficial for utilities. But it's only going to be beneficial if they're proactive. If they're behind the curve, then potentially they're paying for carbon rather than getting benefits for [reducing] carbon," he said.Coal to still play a role
Roughly 40 percent of U.S. electricity today is generated with coal. In 2030, S&P forecasts that number will be 27 percent, with natural gas having become the preferred fuel for generators. That jibes with what the U.S. Energy Information Administration predicts.
As of September, there was 287.7 gigawatts of coal-fired generating capacity, EIA said. And in 2030, the agency projects there will be 252.8 GW of coal-fired capacity.
The coal plants that will survive fall into two categories, Ferguson said.
The first one is in certain unregulated areas, such as regional transmission organizations. "I think if you look at mine-mouth coal plants -- even if you add the carbon costs on top of them -- they still dispatch really well," Ferguson said.
"They're still going to be profitable, but maybe just not as profitable as they were before," he said, noting that coal plants located near their fuel sources in West Virginia, Texas and Pennsylvania "will still be very strong."
"The other ones that are going to stay open are ones in some regulated markets where there is a political motive not to get rid of coal, so Southeastern markets would come to mind here, the more vertically integrated states," Ferguson said.
Even though the "economical thing to do might be to build" a new combined-cycle gas turbine or move to more renewables, states with a political need to preserve coal plants might instead opt to buy "allowances from states that are awash in low-carbon sources," he said.
As for the cost of compliance with EPA's rule, "it's going to vary significantly by region," Ferguson said.
In the short term, increases for consumers are likely. "If you're just looking at coal-to-gas switching, there would be power price increases, but they would taper off over time because if you assume that gas prices are going to stay low, over time that moderates power price increases," he said.
And state efforts to reduce demand for electricity "would almost exclusively offset the price increases associated with having" to reduce carbon emissions.
Once again, though, Ferguson warms that making "political hay" out of the Clean Power Plan could cost consumers more.
"All the states have a ton of flexibility on how they meet this. That's the virtue of this rule. It's not [the Mercury and Air Toxics Standard rule]; it's not [the Cross-State Air Pollution rule].
"There's not a restrictive set of things you have to do to comply. You can do a lot of different things. The longer the time frame goes on, the fewer options you have -- the less lead time you have to build new combined-cycle gas turbines, the less time you have to build new transmission to bring in clean power from other states if you want to," Ferguson said.
He thinks state utility regulators will see compliance as a "stimulus opportunity; they can reap the stimulus benefits while at the same time point the finger at EPA for any power price increases" that might occur.
"There are public personas and there are private personas on this. And they're very divorced from each other," Ferguson said.
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California's Appearance at the Climate Change Talks Belies an L.A. Oil and Gas Health Threat
Dec 7, 2015 | LA Times
By Kelvin Sauls
Gov. Jerry Brown and a delegation of California officials are in attendance at the U.N. climate change conference in Paris. They are there, in part, to tout the state's efforts to cut carbon pollution and simultaneously grow the economy. Yet as much as California's environmental progress deserves recognition, it is hardly sufficient, and that is especially true at the local level.
Yes, California's system for measuring air quality is more stringent than the national standard, but it doesn't save us from breathing the dirtiest air in the country. Our clean energy goals are ambitious, and yet California remains one of the top oil-producing states in the nation — often drilling in the backyards of our state's poorest and most vulnerable residents. And while the state-mandated cap-and-trade program puts a price on carbon in order to reduce it, that does little to cut pollution in areas where power plants and refineries are housed.California lacks the political will to ... protect hundreds of thousands of its citizens from the dangerous and exploitative practices of oil and gas companies.-
The reality is that California lacks the political will to establish and fully implement regulations that could protect hundreds of thousands of its citizens from the dangerous and exploitative practices of oil and gas companies. There is a real disparity between the environmental dangers faced by low-income communities of color and their more privileged white neighbors.
I serve as senior pastor at the Holman United Methodist Church in South L.A.'s West Adams district. My neighborhood is tightly packed with historic homes, apartments, housing for seniors, a convalescent home and a home for nuns. Children ride their bikes and play basketball in a parking lot near the church. Several schools are located just a few blocks away. Only a wall and a plot of asphalt separate homes in the neighborhood from some 30 active oil wells at the Murphy drill site, operated by Freeport-McMoRan Inc. Oil company workers stand on one side of that wall, dressed head to toe in protective gear and masks, while kids live and play on the other, unprotected and complaining of headaches, nosebleeds and asthma.Porter Ranch gas leak is a wake-up call
These issues are not unique to West Adams — just ask the residents of Porter Ranch, forced out of their homes because of an uncontrollable methane leak at a Southern California Gas Co. facility. But the worst situations are in the poorest communities.
In University Park, a neighborhood only a couple of miles away from my church, a drilling site run by the Allenco Energy Co. was shut down because of community pressure but only after two federal investigators fell ill with nausea and headaches after visiting the site. The Environmental Protection Agency found that the oil company was not taking required precautions to shield the surrounding area from pollutants.
Living less than a half-mile from active oil extraction is considered unsafe, yet a report by Community Health Councils found that 580,000 Angelenos live within just a quarter of a mile — a mere 1,320 feet — from an active well. The state's own scientists have raised alarms about the risks. Nearly six months ago, the California Council on Science and Technology released a report on the dangers of oil operations in dense urban settings. Among other things, it recommended mandatory setbacks around oil wells to minimize human exposure to toxins. Despite the documented threat and the technology council's recommendation, Los Angeles' elected officials have yet to establish a human health and safety buffer to shield homes, schools and hospitals from oil extraction.
In November, a lawsuit was filed against Los Angeles claiming that city officials rubber-stamp oil drilling permits despite state laws that require environmental review. The plaintiffs — many of whom are young people who live near oil and gas sites — allege that the problem is particularly acute in low-income neighborhoods. The suit also contends that extraction is allowed in South Los Angeles and Wilmington with fewer protections and restrictions than at sites in West L.A. and the Wilshire area.
At the Paris climate conference, California may well look like a world leader on environmental solutions. But here at home, thousands of families that live close to drilling sites in Los Angeles are still exposed to severe health and safety dangers. If the state and the city continue to let oil companies drill and extract oil next to schools, homes and hospitals, no matter what Jerry Brown says in Paris, our environmental battles are far from won.
Kelvin Sauls is the senior pastor of the Holman United Methodist Church. He is a member of Californians Against Fracking and a founding member of STAND-LA (Stand Together Against Neighborhood Drilling).
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Colo. Seeks Plan-Writing Input, Awaits Western States' Modeling Tool
Dec 7, 2015 | E&E Climatewire
By Emily Holden
The Colorado Department of Public Health and Environment (CDPHE) is busily drafting an initial plan for reducing carbon emissions under U.S. EPA's Clean Power Plan, despite legal challenges being deployed by the state's attorney general.
In September, the state will request an extension to submit a full plan to EPA by 2018.
CDPHE has been holding public meetings, as well as private talks with companies and advocates. Colorado is also awaiting a modeling tool being built for Western states to evaluate potential carbon-cutting options.
The department hopes to have a draft initial submission ready by July, weeks before EPA's Sept. 6 deadline to ask for two more years to write a final plan.
The department will hold about one public meeting per month ahead of that deadline and is asking for more input on a number of issues, including: The specifics of EPA's Clean Energy Incentive Program. Whether the state should choose a mass- or rate-based plan. How carbon trading might work. What considerations must be made for future electricity demand growth. How to maintain electric reliability. How to minimize costs.
The department has heard it should collaborate with the pubic; reach out to low-income and rural communities; consider economic impacts and potential job losses or gains; rely more on renewable energy and less on fossil fuels; incorporate more energy efficiency practices; and use more solar power and distributed energy, according to a recap of recent meetings.
But state officials are working at cross purposes. Democratic Gov. John Hickenlooper is moving forward to draft a blueprint at the same time Republican Attorney General Cynthia Coffman is suing EPA over the regulation (EnergyWire, Dec. 4). Western states want a model
In conjunction with the public meetings, CDPHE is working out specifics of the state's plan with key stakeholders.
Colorado will use a tool being developed for the Center for the New Energy Economy (CNEE) by the firm Energy Strategies LLC that would allow Western states to evaluate possible carbon-reduction strategies.
CNEE has been coordinating Clean Power Plan discussions among air quality officials, energy offices, utility regulators, industry representatives, regional organizations and EPA offices operating in 13 Western states.
Jeff Burks, the director of Energy Strategies' sustainability and climate change practice, said the first phase of the tool -- funded by the nonprofit Energy Foundation -- should be available in January and will provide modeling options for New Mexico, Utah, Wyoming, Montana and Colorado.
The second phase will model the rest of the Western states, except for California, and will be paid for by participating states and utilities, Burks said.
The tool will not evaluate potential costs but will show states and power companies their compliance gaps between now and the beginning of the rule's implementation in 2022, he said.Utilities need to see how trading might work
EPA's carbon-cutting targets for states are based on a 2012 baseline. But Energy Strategies' tool will show states how far they have come since then and what progress they will make with planned coal plant retirements and other changes.
"We know that the emissions rate and/or mass emissions of CO2 [carbon dioxide] that are reported in the base year of 2012 are not going to be the same for each state in 2022," Burks said. "That's what our model does a very good job of accounting for -- the actual compliance gap."
The tool is built with known and expected data provided by utilities, he said. It will also show each utility how many carbon credits or allowances it might hold, or need to purchase, in a trading system. This will help states in the West and beyond get a sense of who they might want to trade with and how big and liquid a trading market might be, Burks said.
Energy Strategies built an initial version of the tool based on the EPA's proposed Clean Power Plan but had to completely revamp it based on the final rule, which was largely rewritten.
"It took a month just to understand the rule," Burks said.
The original tool was created with guidance from the New Mexico-based utility PNM Resources Inc. The new tool was made in collaboration with PacifiCorp, which serves parts of Washington, Oregon, California, Wyoming, Utah and Idaho.
All the utilities in the five states served by Phase 1 of the tool also participated in its development, Burks added.
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NARUC's Kavulla Says Federal Compliance Plan Not Acceptable to States
Dec 7, 2015 | E&E TV
By OnPoint
How are legal challenges to the Clean Power Plan affecting regulators' ability to effectively plan for the future under the rule? During today’s OnPoint, Travis Kavulla, president of the National Association of Regulatory Utility Commissioners and a member of the Montana Public Service Commission, discusses how his state is working toward compliance, while concurrently legally challenging the rule. He also explains why the Clean Energy Incentive Program is not being prominently considered in compliance discussions in his state.
Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Travis Kavulla, president of the National Association of Regulatory Utility Commissioners and a member of the Montana Public Service Commission. President Kavulla, thanks for joining me.
Travis Kavulla: Thanks, Monica. Glad to be here.
Monica Trauzzi: So as president of NARUC, you are representing a range of incredibly diverse opinions on EPA's Clean Power Plan. Is your sense that all states are having at least some degree of conversation about compliance, regardless of whether they have publicly said so or are legally challenging the rule?
Travis Kavulla: I think so. I mean, you had a political dynamic before where there was a faction of states that simply said, we're challenging and that's our only plan. But those statements were coming out before people saw the federal implementation plan, and if approved in its draft form, that plan could well simply cede the states' ability to make some of the most politically complicated decisions, like the allocation of allowances for a mass-based trading regime, to a decision of a federal template. And that's not going to be acceptable to really any state, I feel. So the only time I would see a state not engaging is in perhaps complicated political situations that have to do with a state's internal politics, probably less so with the scope of national politics.
Monica Trauzzi: Do you have a specific example of a state where -- that would fall in that category?
Travis Kavulla: Well, I can certainly think -- I don't have a specific example, but just -- I can theorize about states with divided governments, certain party controls the legislature, the other party the governor. There's a lot of hay that can be made off of even a minimalist approach to complying with this federal regulation. You know, and coming from Montana, we have experience with being FIPed, as we call it, and it's not a pleasant one. I mean, it has certainly imposed more costs than would have otherwise occurred under a state plan, and so I think it really is incumbent on the members of NARUC and the air regulators and the governors of every state to come up with something.
Monica Trauzzi: Right. How big a part of the conversation is trading playing among regulators?
Travis Kavulla: It's playing a big part. You know, at least -- you know, I tend to be -- consider these questions under a lens of economics. And to me, a classic way to comply with this type of regulation would be to take a state's total carbon emissions budget where it is now, where it has to be by 2022 and then stepping to 2030, and then assign allowances based on those compliance targets to the emitting generators. And then allow them to figure out a trading regime across the nation in a way that would value allowances and value plants based on where power is most expensive, where plants are important in terms of reliability considerations, where it's hard to build an alternative natural gas or renewable plant, and allow essentially the market itself to endogenously find a price for carbon. I think that's the model, but you can tell by EPA's own pronouncements, even though they theoretically endorse this approach, you can tell by their own pronouncements about how this is an investment regime, a jobs plan, if you will, that economic efficiency is going to have to be balanced with political palatability in a state coming up with a plan. And so I think the real question is, how much of a crazy quilt are these state plans going to be? Are they actually going to be able to talk to one another? Are they going to be tradable with one another? That's an unanswered question, and it's going to be answered in 40-something different ways.
Monica Trauzzi: And do you think there's enough time for all of that to sort of come together and for there to be some level of cohesion among states?
Travis Kavulla: I hope so, but you know, EPA's made much over -- of extending its deadline and extending its compliance window, but I'm not sure. I mean, I assume the vast majority of states will make their submissions in 2018. That gives them four years to comply, effectively, and I just don't know. There are other considerations, too. I mean, you have people who have -- if they adopted a mass-based approach, a surplus of allowances, but certain political influences within those states are calling on those states not to monetize those allowances for sale to other states on the basis that that would just be keeping open coal plants in those states. They're instead calling for them to be retired rather than monetized. If a lot of that happens, I think we'd be in real trouble with the liquidity and workability of such a market.
Monica Trauzzi: Montana has filed suit against EPA as part of a coalition of states challenging the rule, and your state is one of those states that's taking sort of that two-pronged approach of legally challenging the rule and then also working towards creating a compliance mechanism. Your governor has created an advisory council to draft a state plan. How do the legal challenges impact your abilities as a regulator to effectively plan for the future under the plan?
Travis Kavulla: It injects uncertainty into everything. You know, why would you invest a dollar complying with the rule that then gets invalidated? But that's nothing new. I mean, we've been answering questions that are similar to that throughout the last decade and a half. I mean, with respect to MATS, we had to -- Mercury and Air Toxics Standard -- we had to ask, well, if you invest a dollar complying with MATS for this plant, what happens when the Clean Power Plan or the cooling water intake rule requires you to spend the second or third dollar and makes the initial investment seem like a stupid idea? So, you know, this is a time of uncertainty, and much of that uncertainty is being injected into the regime of utility regulation by these environmental considerations. You know, I will say it -- uncertainty is relative, and before the Clean Power Plan came out, there was no price at all on carbon except in a very few number of jurisdictions that had adopted their own regulations. Now there's not a price on carbon, but at least you know what kind of target you're hitting at. So there might be less uncertainty, and I'm not characterizing it as good or bad; I'm just saying there might actually be a little less uncertainty now than there had been before, but, you know, the Clean Power Plan has so many moving parts and variables, it's not a regime of cap and trade or carbon taxation at a national level that really offers any kind of blueprint to anyone who estimate capital investments. Not at this point, anyway.
Monica Trauzzi: What steps is your PSC taking right now in terms of developing a strategy for managing the required emissions reductions with your heavy reliance on coal?
Travis Kavulla: You know, the Montana PSC staff has put out nearly 10 white papers that just explain concepts for a reasonably intelligent but not expert audience of policymakers, be they legislators, members of the public in Montana, commissioners. And, you know, they've tried to take building blocks of what Montana might be able to do and get us to a place just conceptually where we meet our target. You know, one of the things about Montana is that, you know, most of our coal-generated electricity is not consumed by utilities in Montana. It's exported from the state. And so you have the strange situation where Montana's governor and environmental regulator are responsible for making decisions about the property of utilities that serve customers not in Montana. It's a complicated situation of political economy. There are big differences in the political landscape between Washington state, Oregon state and Montana in terms of that importing-exporting relationship. It's really unclear how that will play out. You know, I would expect there to be a dialogue of the utility co-owners of some of those big coal plants in the West that are located in Montana, Wyoming, Utah.
Monica Trauzzi: Are you confident that the lights will stay on under this plan in your state?
Travis Kavulla: You know, our state has enough hydroelectric power. It has enough capacity for natural gas. It has enough renewable potential that it's not a question, I don't think, immediately of reliability so long as you don't put a price tag on reliability. It could be very expensive -- very expensive to comply with this rule. Do I think the lights will go out? I don't think that will happen. I should hope not.
Monica Trauzzi: How valuable of a resource is the Clean Energy Incentive Program to your state as you work towards grafting a compliance mechanism?
Travis Kavulla: You know, it's candidly, I think, only a detail in the scope of the plan so far. It's not -- it's something that got a bit of attention when the rule first came out. It's not something that I hear being prominently discussed within our state plan crafting at the moment. To the degree to which it's taken advantage of, it might almost be accidentally so, simply because there are renewable developments in energy efficiency developments in the pipeline for various states during the period that they would qualify for the incentive program. Will it actually drive investments prior to the formal compliance period? I think, candidly, it's a bit too soon to tell. I would assume that the bulk of that work will have to come from utilities' sort of integrated resource plans that try to identify when exactly resources are needed and whether -- and a quantification of the economic advantage. It's hard to say, though, when you're talking about an incentive program that simply sort of churns out additional allowances or credits, what those will be worth if you don't know the underlying value of a credit that will be traded on the market. You know, the market's not operational. There aren't a lot of good models that suggest what an allowance might be sold for, so we just don't know yet.
Monica Trauzzi: Do you think it's in Montana's best interest to be part of a regional trading program like we were talking about earlier?
Travis Kavulla: I don't know, if Montana didn't -- was not able to buy allowances from other states, we would have to close essentially all or most of our coal. I mean, our coal-fired assets are concentrated in one large, roughly 2,100-megawatt facility, and given the fact that our reductions are the steepest on a percentage basis in the nation -- 47 percent -- you'd have to close down that entire plant. So, you know, I mean, I'm willing to say Montana's coal future depends on either this rule being vacated, or if it's not, the ability of Montana to buy allowances from others.
Monica Trauzzi: All right. We're going to end it right there on that note. Thank you so much for your time and for coming on the show.
Travis Kavulla: Thanks, Monica.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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ESA Lawsuit Tests Consultation Mandate For CWA Permitting Exemptions
Dec 7, 2015 | Inside EPA
By David LaRoss
Washington state environmentalists are suing EPA and the National Marine Fisheries Service (NFMS) to force an Endangered Species Act (ESA) consultation on the state's Clean Water Act (CWA) permit rules for commercial salmon farms, part of a push for EPA to more broadly consider state water policies' impacts on ESA listed species.
"As far as other litigation on these types of issues, I am pretty sure there isn't any," says one environmentalist, who says the suit appears to be the first to specifically challenge agencies' failure to consult over CWA permit exemptions after federal regulators twice found that no ESA action is necessary for the Washington rules.
Environmentalists have sought for years to force EPA and the Fish and Wildlife Service and NFMS -- collectively known as the federal wildlife services -- to broaden their interagency consultation on how environmental regulations might affect protected species under ESA, and to pressure the services to find jeopardy to listed species in more situations, which would potentially trigger more stringent protections and mitigation measures.
Environmentalists' lawsuits over the past decade, especially over pesticide registrations, have heightened the tension, leading the agencies to seek advice from the National Academy of Sciences on how to collaborate while advocates have asked courts to set strict deadlines by which the services must complete ESA reviews.
The Wild Fish Conservancy (WFC) filed its complaint against EPA and NFMS Nov. 5 in the U.S. District Court for the Western District of Washington, asking a judge to require interagency consultation on the state's rule suspending many water permit requirements for the farms in Puget Sound. The group is seeking a court order to force consultation over the permit exemption despite EPA and NFMS twice finding that no formal consultation is needed.
WFC's complaint alleges that "Commercial salmon farms pose myriad risks to wild salmonids, many of which are well-studied and documented. Despite known risks and harms, [EPA and NFMS] determined in 2008 that commercial salmon farms in Puget Sound are not likely to have any adverse effect on threatened wild salmonids.”
WFC is hoping to win new federal review of the Washington rule that allows salmon farms to operate without incorporating the state's sediment management requirements into their federal CWA National Pollutant Discharge Elimination System (NPDES) permits.
Environmentalists claim that EPA has avoided consulting on NPDES issues despite the CWA requirement to review and approve all new or modified state "water quality standards," which under the ESA includes consultation when needed. Advocates say this is part of what they describe as an overall pattern of avoiding ESA duties. They say they are hoping to curb such actions through litigation like the WFCC suit.
Pollution Sources
"As a general rule, EPA finds that rules that are related to point sources are NPDES rules that are not water quality standards and rules that pertain to nonpoint sources are not worthy of their action because EPA has no nonpoint source authority. That's pretty much the universe of pollution sources," says the environmentalist.
For instance, plaintiffs in Kentucky Waterways Alliance et al. v. Gina McCarthy et al., pending before the U.S. District Court for the Western District of Kentucky, have argued that EPA's approval of Kentucky's revised water quality standards regarding selenium, nutrients and eutrophication are inconsistent with federal water quality regulations, and should have triggered an ESA consultation.
WFC is hoping to expand on a ruling it won in an earlier challenge over the same Puget Sound farms, where a district judge ordered EPA and NFMS to re-examine the potential impacts of exempting the facilities from sediment management requirements using "the best available science" but did not explicitly order a consultation.
"Remarkably, the agencies concluded again in 2011 that the Puget Sound commercial salmon farms are not likely to have any adverse effect on threatened salmonids and that formal consultation under the ESA is unnecessary," the complaint says.
Rather than seeking a court order for federal regulators to consider for a third time whether consultation is necessary, WFC is now asking the court to directly require the consultation.
The group argues in its complaint that a 2012 outbreak of infectious hematopoietic necrosis virus (INHV) among the region's salmonid population shows the need for ESA action, because the farms' dense population helped spread the disease to many more wild fish than would otherwise have been affected.
"The 2012 outbreak of IHNV at three commercial salmon farms in Puget Sound and documents associated therewith have revealed effects from EPA's approval of the revised water quality standards that may affect listed species and/or critical habitat in a manner or to an extent not previously considered. Reinitiation of the consultation . . . is therefore required under the ESA," the complaint says.
In addition to setting a higher bar for when EPA must consult the wildlife services on states' CWA policies, a ruling that says EPA should have returned to the ESA process based on the INHV outbreak could also provide a precedent for environmentalists to sue over agencies' failure to consult based on later environmental harms, on the basis that they too should have triggered a duty to re-start consultation.
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Court to Decide Small Question with Big Impact on Obama Rule
Dec 7, 2015 | E&E Greenwire
By Jeremy P. Jacobs and Tiffany Stecker
A federal appeals court will grapple tomorrow with whether to review President Obama's controversial rule defining the scope of the Clean Water Act.
The 6th U.S. Circuit Court of Appeals in Cincinnati will hold oral arguments in consolidated cases brought by 18 states, agricultural and industry groups that claim the Waters of the U.S. rule oversteps U.S. EPA's constitutional authority.
Tomorrow's arguments will focus narrowly on a critical procedural question: whether the 6th Circuit has jurisdiction to hear the case.
EPA and the Army Corps of Engineers unveiled the rule in May, arguing that it would provide certainty for which marshes, bogs, wetlands and ditches qualify for Clean Water Act protections. The rule sought to clarify the jurisdiction issue after two muddled Supreme Court rulings.
Lawsuits quickly followed that contended the regime infringed on states' rights and violated the Constitution.
But because of vague language in the Clean Water Act, it was unclear whether the cases should be filed in federal district courts or appeals courts. As a result, more than a dozen were filed in both.
All but one district court has either ruled that it lacks jurisdiction or declined to rule on that question until the 6th Circuit resolves the issue. A federal district court judge in North Dakota, however, found that he does have jurisdiction and is proceeding with the case before him, which was brought by 14 states (Greenwire, Aug. 28).
The 6th Circuit has halted the rule nationwide while it considers jurisdiction (Greenwire, Oct. 9).
Observers expect the 6th Circuit to rule quickly on whether it will keep the more than a dozen consolidated cases in its courtroom.
The Obama administration has pressed for that resolution, which would expedite the litigation and allow the administration to set the groundwork for a case that may eventually reach the Supreme Court after Obama leaves office.
Opponents of the rule, however, contend that the cases should first be heard in federal district courts. They have pressed the North Dakota court to move forward with that case quickly.
That could lead to multiple federal district court judges producing conflicting rulings that would then need to be appealed. In that scenario, the litigation would stretch out for years. And if a Republican were to win the White House next year, it is unlikely that administration would strongly defend the rule in court.
Arguments in In re: EPA and Department of Defense Final Rule are scheduled for 1:30 p.m. EST at the 6th Circuit courthouse in Cincinnati.
Notably, the 6th Circuit's decision may not entirely settle the jurisdiction issue. A separate case, brought by Georgia and 10 other states, is pending at the Atlanta-based 11th U.S. Circuit Court of Appeals. That lawsuit is an appeal of a district court ruling that held jurisdiction belonged at an appellate court. The 11th Circuit is scheduled to hear oral arguments on the issue in February.
The 6th and 11th circuits could reach opposite conclusions, paving the way for the jurisdiction question to reach the Supreme Court.
The 18 states challenging the rule nationwide: Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin.
Seven states and the District of Columbia have intervened in the case supporting the administration. They are Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont and Washington.
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Wonky Court Battle to Set Path for WOTUS Challenges
Dec 7, 2015 | Politico Pro
By Annie Snider
A fight playing out in a federal courtroom in Cincinnati this week could determine whether the Obama administration will eventually get to defend its landmark water regulation before the Supreme Court.
EPA's recently finished Waters of the U.S. rule faces its first major test Tuesday at the 6th U.S. Circuit Court of Appeals, which is considering a dense legal question to determine whether dozens of lawsuits challenging the rule move forward as a single case there or proceed separately through at least 13 courts.
The case will hinge on the judges' interpretation of a section of the Clean Water Act that determines when lawsuits can leapfrog lower courts — avoiding years of legal wrangling in the process. And the Obama administration hopes they take it up, despite facing a panel weighted toward Republican appointees that has already blocked the rule temporarily.
With the clock ticking on the Obama administration, the race is on for top Justice Department lawyers to lay key groundwork in the litigation. If the 6th Circuit were to take the case and keep up its speedy pace in the proceedings, it could reach a decision as soon as next fall, predicted Paul Beard II, an attorney at Alston Bird LLP who successfully argued a recent wetlands case before the Supreme Court. That means the administration’s solicitor general would still be in office, Beard noted, to "lay some strong groundwork" in key early filings for a widely expected Supreme Court appeal.
“The government has an incentive to get this through the process as quickly as possible,” Beard said. “I can’t imagine a Republican administration persuasively defending the WOTUS rule if it got to the Supreme Court.”
The three judges' decision could prove hugely influential to the rule’s fate beyond its influence on the timing over a decision.
For one thing, EPA has had some big cases go its way there. That is encouraging to the agency's defenders, despite the fact that they face a panel with two of former President George W. Bush's appointees, Judge David McKeague and Senior Judge Richard Allen Griffin, who provided the votes for a temporary injunction to block the rule.
Judges in that court took a case relating to whether Clean Water Act permits are required for spraying pesticides, and upheld the government’s position in 2009.
And the 2006 Supreme Court case that prompted the current WOTUS rule —Rapanos v. United States — first went through the 6th Circuit, where judges sided with EPA and the Army Corps of Engineers in claiming jurisdiction over Michigan wetlands up for development.
Also important to the Justice Department are the practical considerations.
Leaving the case in appellate court would prevent opponents of the rule from filing any new challenges beyond the 16 cases filed there so far. In district court, challenges could continue for up to six years.
Already, there are at least 17 district court cases in at least 13 different districts. A judicial panel in New York City decided against consolidating them in October.
That could make for an unwieldy mess if the panel decides the issue belongs in district court, but plaintiffs would prefer it that way.
“There are a lot of reasons the plaintiffs like the district court route,” said Jamie Colburn, a former EPA litigator who teaches law at Penn State. “It gives them many bites at the apple, and it also opens the government up to additions to the record.”
Moreover, in district court the states, farmers, miners and other challengers enjoy a home-field advantage with judges closer to issues on the ground, he said.
But that local perspective comes with something of a catch-22 for plaintiffs: If the cases ended up in district court the 6th Circuit’s nationwide injunction would be lifted, leaving the rule on hold only in the 13 states that persuaded a North Dakota district court to issue a limited injunction in August.
Also factoring into both sides’ strategy is the political timing.
Where the Obama administration wants to speed things up, opponents of the rule would have a motivation to slow the process, particularly if they thought the next president would be more friendly to their point of view.
For their part, the 6th Circuit judges have acknowledged that both sides have good points about where they argue the case belongs.
“While petitioners have grounds to question our jurisdiction … respondents’ contrary position has color as well,” McKeague and Griffin said in their order issuing the temporary injunction.
But the fact that they issued the injunction at all leads many to suspect that they’re itching to take on the case.
Senior Judge Damon Keith dissented from the injunction order, arguing the court must first decide whether it has jurisdiction over the matter.
Either way the 6th Circuit decides it, though, there’s a big risk.
If the Supreme Court were to decide that the case should have started in the districts, it could send the litigation back to square one before ever considering the merits.
After years of court battles, no one would be any closer to knowing whether the WOTUS rule was legal.
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