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ACC AM Dec 10
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(ACC Mentioned) SPI Endorses Prop 65 Insurance Plan That Protects Plastics Companies From Predatory Lawsuits
Dec 9, 2015 | Plastics Today
By Clare Goldsberry
SPI: The Plastics Industry Trade Association (Washington, DC) announced on Dec. 4 its endorsement of a new insurance program designed to shield small- to medium-sized companies from opportunistic lawsuits related to California's Proposition 65. The SPI Prop 65 Protection Program insures product manufacturers, distributors... -
(ACC Mentioned) Bye-Bye Bath Beads
Dec 9, 2015 | Legal Reader
By Jay W. Belle Isle
The House of Representatives voted this week to ban plastic microbeads in personal hygiene products, such as facial scrubs and body washes. The little exfoliating wonders are an environmental nightmare, apparently. So, the legislation now goes to the Senate. If passed there and signed by our Commander in Chief, it’s bye-bye bath beads. -
Potential FY16 Bill Rider On LWCF Could Free TSCA Reform Bill For Vote
Dec 9, 2015 | BNA Daily Environment Report
By David LaRoss
Congress is weighing a potential rider to the pending fiscal year 2016 omnibus bill that would reauthorize the Land & Water Conservation Fund (LWCF), sources say, which if successful could free the Senate's stalled Toxic Substances Control Act (TSCA) reform bill for a vote as some senators are blocking that bill until the LWCF dispute is resolved. -
IRIS Program Prepping Other EPA Offices For Novel Arsenic Risk Estimates
Dec 9, 2015 | InsideEPA
By Maria Hegstad
Leaders of EPA's influential Integrated Risk Information System (IRIS) assessment program have started preparing colleagues in regional and program offices that use IRIS assessments in their regulatory work for novel risk specific dose calculations that will be included in the pending assessment of arsenic's human health risks. -
Evolving Chemical Issues Drive Change at Law Firms
Dec 10, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The upsurge of new and modernized chemical regulatory regimes in other countries coupled with legislative and regulatory action by U.S. states has spurred law firms to expand their chemicals practice over the last decade. Advancements in nanotechnology and genetic engineering also are spurring new legal questions for law firms... -
(ACC Mentioned) Rail Reform Bill On Track To Clear Congress This Week
Dec 9, 2015 | The Journal of Commerce
By Reynolds Hutchins
U.S. lawmakers are expected to pass an overhaul of the Surface Transportation Board, giving the nation’s main freight rail regulator more teeth to crackdown on service issues and boost competition in the industry. The bill’s sponsors say they are confident the legislation will arrive on President Obama’s desk before the new year. -
Senate Committee Passes Pipeline Reauthorization Bill
Dec 10, 2015 | BNA Daily Environment Report
By Rachel Leven
A Senate committee passed Dec. 9 by voice vote—with a number of amendments—a bipartisan bill to reauthorize pipeline safety programs through 2019. Among the changes included in the Senate Commerce, Science and Transportation Committee-passed SAFE PIPES Act (S. 2276) that reauthorizes pipeline programs... -
Senate Panel Advances Four-Year Pipeline Reauthorization Bill
Dec 9, 2015 | Roll Call
By Kellie Mejdrich
The Senate Commerce, Science and Transportation Committee Wednesday sent a four-year reauthorization of pipeline safety programs to the full Senate by voice vote. The bill (S 2276) would increase authorized funds for federal pipeline safety programs under the Department of Transportation by about 40 percent in fiscal 2016 and increase the amount... -
Nebraska Court Dismisses Lawsuit Over Pipeline Law
Dec 10, 2015 | BNA Energy & Environment Blog
By Christopher Brown
A Nebraska court has dismissed one of two lawsuits filed by landowners against TransCanada Corp. challenging a state law that gave the governor the authority to approve a route for the proposed Keystone XL pipeline (Steskal v. TransCanada Keystone Pipeline LP, Neb. Dist. Ct., CI 15-6, dismissed, 12/4/15). -
Enbridge, U.S. Fend Off Challenge to Pipeline Expansion Plan
Dec 10, 2015 | BNA Daily Environment Report
By Andrew Harris and Rebecca Penty
Enbridge Inc. and the U.S. State Department beat back a legal challenge to the Canadian company's plans to increase the capacity of its cross-border Alberta Clipper oil pipeline. A federal court judge in Minneapolis on Dec. 9 ruled he doesn't have the authority to review preliminary government authorizations on the project... -
'Alberta Clipper' Decision Can't Be Challenged, Judge Rules
Dec 9, 2015 | E&E News PM
By Jeremy P. Jacobs
A federal judge today rejected a bid by environmental groups and Native American tribes to block a major oil sands pipeline that crosses the U.S.-Canada border. The Sierra Club, the National Wildlife Federation, White Earth Nation and others sued to challenge the State... -
(ACC Mentioned) Court Should Review Clean Power Plan Legality First
Dec 10, 2015 | BNA Daily Environment Report
By Andrew Childers
Opponents of the Clean Power Plan are asking a federal appellate court to first address whether the Environmental Protection Agency has the legal authority to issue the rule before tackling specific challenges to how the regulations are implemented (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion filed 12/8/15). -
Local Fracking Bans Said to Impede Colorado's Interest
Dec 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
Local attempts to ban or impose a temporary halt to hydraulic fracturing impede Colorado's role in fostering the responsible development of its oil and gas resources, an industry attorney argued before the state Supreme Court Dec. 9 (City of Longmont v. Colorado Oil and Gas Ass'n, Colo., No. 2015SC667, oral argument... -
Jewell Says She Has No 'Timeline' To Complete BLM Methane Rule
Dec 9, 2015 | PoliticoPro - Whiteboard
By Elana Schor and Alex Guillén
Interior Secretary Sally Jewell said today that the Bureau of Land Management's long-awaited rule for venting and flaring of methane produced by drilling sites on public lands may not be finished before she leaves her post. "I don’t actually have a timeline" to finish work on the BLM rule, Jewell told reporters. "I know that it would certainly... -
Spending Deal May Not Come Together Until Next Week
Dec 9, 2015 | E&E News PM
By Hannah Hess, Geof Koss and Manuel Quiñones
The House appears headed for a Friday vote on the short-term continuing spending resolution to keep the federal government open while lawmakers continue to negotiate a long-term deal. Senate and House leaders have yet to say how long the CR will be for. House Minority Leader Nancy Pelosi (D-Calif.) told reporters today that she expected it... -
EPA Limits Emissions at Eight Texas Plants
Dec 10, 2015 | BNA Daily Environment Report
By Nushin Huq
The Environmental Protection Agency imposed sulfur dioxide limits on eight coal-fired power plants in Texas after disapproving portions of the state's regional haze plan, according to a final rule signed Dec. 9. As a result, the EPA imposed a federal plan that sets sulfur dioxide emissions limits on 15 generating units at eight coal-fired plants... -
EPA Rolls Out Final Haze Plan For Texas, Okla.
Dec 9, 2015 | E&E News PM
By Sean Reilly
U.S. EPA today unveiled a final regional haze plan for Texas and Oklahoma with little changed from a draft version that attracted fierce criticism from Texas Gov. Greg Abbott (R) and the state's electric companies. The plan, which is intended to improve visibility at the national parks and wildness areas, calls for a reduction of sulfur... -
Obama Hasn't Received Carbon Resolutions To Veto
Dec 10, 2015 | BNA Daily Environment Report
By Anthony Adragna
More than a week after Congress passed two resolutions to nullify the centerpieces of President Barack Obama's efforts to fight climate change domestically, several Republican aides said legislators haven't yet sent copies of the measures to the White House for a sure veto. -
Grijalva Urges White House Effort on Environmental Riders
Dec 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The Obama administration should be doing more to keep environmental riders, including one related to the stream protection rule, out of the upcoming omnibus bill, a senior House Democrat told Bloomberg BNA Dec. 9. “We should be getting more indications from the White House as to their opposition to some of these things”... -
GOP Senators Take Aim At Potential Climate Deal
Dec 9, 2015 | PoliticoPro
By Devin Henry
Senior Senate Republicans continued Wednesday to cast doubt on the effectiveness of a potential climate deal in Paris while calling again for a round of congressional votes on the agreement. Sen. Jim Inhofe (R-Okla.), the chairman of the Environment and Public Works Committee and a chief critic of President... -
5 Climate Summit Takeaways As Deadline Nears
Dec 9, 2015 | PoliticoPro
By Andrew Restuccia, Sara Stefanini and Kalina Oroschakoff
A climate deal is close but it’s not there yet, as negotiators worked through the night Wednesday on a draft that shows the outlines of a possible agreement but still leaves large areas of disagreement only two days before talks are scheduled to end. The wear and tear deep into the second week of climate negotiations... -
U.S. Joins Coalition Pressing For 'Ambitious Agreement'
Dec 9, 2015 | E&E News PM
By Lisa Friedman
The United States has joined more than 100 rich and poor countries calling themselves the "high ambition coalition" that declared tonight they will not accept a "minimalist" climate change agreement. Led by the Marshall Islands, the European Union, a group of progressive Latin American countries and the world's least...
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Dec 9, 2015 | Plastics Today
By Clare Goldsberry
SPI: The Plastics Industry Trade Association (Washington, DC) announced on Dec. 4 its endorsement of a new insurance program designed to shield small- to medium-sized companies from opportunistic lawsuits related to California's Proposition 65. The SPI Prop 65 Protection Program insures product manufacturers, distributors and formulators of products that contain federally approved plasticizers from falling victim to predatory lawsuits.
Proposition 65 gives California's attorney general the authority to serve a notice of violation against any company along the supply chain that sells a product directly or indirectly in California containing chemicals classified by the state as carcinogens. Among the listed chemicals are plasticizers that add flexibility to commonly used products such as luggage tags, key chains and purses. Multiple plastics industry organizations say that scientific evidence shows that plasticizers included on the list are not hazardous to people's health.
"Prop 65 punishes law-abiding business owners who are good actors," Terry Peters, SPI's Vice President of Industry Affairs, said. "Attorneys and the state of California are the only winners in these lawsuits and they anticipate that companies targeted will choose to settle because it is less expensive and less time-consuming than mounting an affirmative defense."
According to the California Attorney General's office, in 2014 there were 663 settlements totaling more than $29 million associated with Prop 65 notices of violation. Attorney fees and costs accounted for 71% of that total, or more than $21 million. SPI estimates that the average settlement cost for a California Prop 65 case exceeds $80,000.
The law affects any company providing constituent materials that end up in consumer products in California, regardless of where the business is headquartered. Unfortunately, companies can be named in multiple lawsuits and suffer even more damage to their bottom line, said the SPI release.
A closer look at Prop 65 through information provided by the American Chemistry Council on its website indicates that there are 900 substances, including diisononyl phthalate (DINP), which is used as a plasticizer; additives and ingredients in food and household products; naturally occurring substances; and ethyl alcohol in alcoholic beverages, aspirin and many prescription drugs. The law "requires anyone doing business in California to label a product if human exposure to a listed substance in the product is expected to be at a level above the established ‘safe harbor' level (No Significant Risk Level) to that substance." Note that Prop 65 is not a restriction on the product's use, but is a labeling requirement that applies in certain instances, said the ACC.
In June of 2014, the ACC filed a lawsuit to stop Prop 65 from including certain chemicals in plastics. However, in March 2015, the California Superior Court denied the relief sought by the ACC. The ACC filed an appeal in May of 2015.
In June of this year, the High Phthalates Panel of the ACC released the following statement in regard to ACC's lawsuit challenging the listing of DINP as a chemical known to cause cancer pursuant to the California Safe Drinking Water & Toxic Enforcement Act of 1986, aka Proposition 65:
"DINP is one of the most thoroughly studied compounds in the world. DINP has been reviewed by numerous international scientific panels over decades and the conclusions are essentially the same each time. DINP as currently used in commercial and consumer products does not pose a risk to human health at typical exposure levels. This conclusion was confirmed most recently by the European Commission (January 2014) following a four-year, in-depth evaluation by the European Chemistry Agency, which did not conclude that DINP is a human carcinogen."
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(ACC Mentioned) Bye-Bye Bath Beads
Dec 9, 2015 | Legal Reader
By Jay W. Belle Isle
The House of Representatives voted this week to ban plastic microbeads in personal hygiene products, such as facial scrubs and body washes. The little exfoliating wonders are an environmental nightmare, apparently. So, the legislation now goes to the Senate. If passed there and signed by our Commander in Chief, it’s bye-bye bath beads.
Representative Frank Pallone (D-NJ) introduced the legislation earlier in 2015. His goal was to protect our lakes and streams from a deluge of itsy-bitsy pieces of plastic. Some of you might be wondering why he is so concerned about this when there are other issues at stake.
While the microbead issue may seem as small as the beads themselves, it is actually pretty macro in terms of environmental damage. These beads typically between 0.0004 to 1.24 millimeters in size, easily sneaking past water filtration systems making it into our lakes and streams. According to a paper published in the Marine Pollution Bulletin in December 2013, Lake Michigan contained an average 17,000 microbeads per square kilometer and some areas of Lake Ontario had as much as 1.1M beads per square kilometer.
The damage they do is on the macro scale. Microbeads can coat the lakebed, choking out any plant life and causing oxygen levels to plummet. Certain small fish mistake the indigestible beads for fish eggs and eat them. Eventually, their stomachs fill with plastic and they starve to death. The cycle continues when larger fish eat the smaller ones and so on and so on.
As if it weren’t enough, plastic acts as a sponge for some pollutants, such as pesticides and motor oils. When the fish eat them, these toxins are absorbed and passed on up the food chain ultimately stopping at us.
House Energy and Commerce Committee Chair Fred Upton (R-MI) said, “Simply put, microbeads are causing mega-problems. Once they’re flushed down the drain, that’s when the problem really begins.”
Rep. Pallone, the ranking Democrat on the Committee, added, “We must put a stop to this unnecessary and avoidable pollution.”
This legislation would preempt states from passing laws regulating microbeads. This provision was added, according to Pallone, because it phases out microbead-containing products faster than any current state laws. The products banned would be all non-prescription, rinse-off items, including toothpaste.
The House got a high five from the American Chemistry Council (ACC) for passing the bill. “Plastics play a vital role in our economy—from helping build and maintain homes to advancing new technologies. H.R. 1321 is an important step to ensure we have one sensible, national standard for phasing out the use of solid plastic microbeads in personal care products across America.”
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Potential FY16 Bill Rider On LWCF Could Free TSCA Reform Bill For Vote
Dec 9, 2015 | BNA Daily Environment Report
By David LaRoss
Congress is weighing a potential rider to the pending fiscal year 2016 omnibus bill that would reauthorize the Land & Water Conservation Fund (LWCF), sources say, which if successful could free the Senate's stalled Toxic Substances Control Act (TSCA) reform bill for a vote as some senators are blocking that bill until the LWCF dispute is resolved.
Reauthorization of the LWCF is one of several environmental policy debates between Republican and Democratic lawmakers as they scramble to reach agreement on long-term funding legislation before a current continuing resolution (CR) funding the government expires Dec. 11. Observers say that legislators are unlikely to meet that goal and are expected to soon propose a short-term extension giving them more time to craft a full-year omnibus.
Some EPA critics had suggested that the bill could be a vehicle for provisions to block major agency rules including its power plant greenhouse gas standards and Clean Water Act (CWA) jurisdiction rule. But several Democrats have vowed to block such provisions, and urged President Obama to veto any bill including such riders.
However, some Democrats are said to be at least considering agreeing to adopt language in the budget bill to lift a decades-old ban on oil exports in exchange for concessions such as LWCF reauthorization, according to a recent Politico Pro article -- which would remove what has been the major roadblock for the Senate TSCA bill.
One Democratic staffer says an LWCF rider through the omnibus is “possible” but still uncertain. There has been “no resolution on that yet,” the source continues.
An environmentalist warns that in order for reauthorization to succeed negotiators will still have to find common ground with the same Republicans who have blocked its inclusion in other legislation, including TSCA reform.
However, a second environmentalist says advocates that back LWCF reauthorization are optimistic that it will pass as part of the omnibus. “What we are hearing is that LWCF is absolutely in the mix, that it's one of the top priorities for many of the legislators in the Senate and the House,” the source says.
Omnibus Bill
Lawmakers will still have to resolve other fights before they can craft an omnibus bill, including the push by some Republican critics of EPA to include language blocking rules they oppose.
The Democratic staffer says Republicans have recently “indicated that they intend to pass a short-term CR -- I think what [House Speaker] Paul Ryan [(R-WI)] said was 'a handful of days,'” but the staffer says that as of Inside EPA's press time Democrats have yet to see proposed language for the extension.
Moreover, the source says Democrats could still oppose any extension of existing funding levels if there has been no movement toward an agreement on policy riders. “We don't want to just agree to an extension if nothing's going to change,” the source says.
A rider reauthorizing the LWCF could help win Democrats' backing for the spending bill since they generally support the fund, and the second environmentalist said supporters of the fund are hopeful that that such a provision will appear in the final legislation.
But the first environmentalist says any such language would also need to satisfy the Republicans who have so far blocked other LWCF reauthorization.
Sen. Richard Burr (R-NC) has sought to attach an amendment to the TSCA reform bill, S. 697, that would reauthorize the LWCF, and is blocking a floor vote on the bill until that issue is resolved. However, Sen. Mike Lee (R-UT) and other GOP senators oppose reauthorization of the fund without changes to how it operates and would fight the amendment, which has stymied both the LWCF and TSCA bills.
“I believe that will happen if Sen. Burr and the other Republicans who claim to support it to make it happen,” the first environmentalist says.
With budget talks appearing certain to last beyond the Dec. 11 deadline Congress is unlikely to take up TSCA reform before its end-of-year recess in any case, but an LWCF deal in the omnibus would allow for a vote on S. 697 as soon as early January when legislators return to start their 2016 session.
'Poison Pill'
Democrats are publicly pressing the chambers' GOP leaders to put forward a FY16 bill free of all environmental riders. For instance, in a Dec. 7 “Dear Colleague” letter from Minority Leader Nancy Pelosi (D-CA) to her caucus, she says “Following our Caucus and Whip meetings last week, it was clear that Democrats cannot support an Omnibus that includes the poison pill riders inserted by the Republican leadership.”
However, Republicans are said to be pressing for policy concessions to win support from conservatives who would otherwise oppose the $40 billion discretionary spending increase in the budget deal enacted in November. The legislation required Democratic support to pass Congress in part because many GOP legislators voted against the spending boost.
There have been suggestions from industry observers that Democrats might agree to a one-year bar on implementing the CWA jurisdiction rule in exchange for allowing the GHG standards to go forward.
But environmentalists and the Democratic staffer say such a deal is unlikely at best -- even though the CWA rule is under a judicial stay of implementation nationwide from the U.S. Court of Appeals for the 6th Circuit while courts consider the complex challenges to its legality from states, industry and environmentalists.
“In the past, these debates have happened not wholly contingent on what's playing out in court. Regardless of what the court battles might be, people are going to make their decisions on the merits of a legislative provision independent of that,” the Democratic staffer says.
A third environmentalist says that if Congress approves a law blocking the CWA rule, even temporarily, it could be seen by judges as a signal that legislators as a whole oppose the policy, undermining the administration in defending the rule in the pending litigation. “Congress stepping up now and saying anything other than positive could be taken wrong by the courts. Anything they do to undermine the Clean Water Act would not be a 'nothingburger.' It would be substantial,” the source says.
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IRIS Program Prepping Other EPA Offices For Novel Arsenic Risk Estimates
Dec 9, 2015 | InsideEPA
By Maria Hegstad
Leaders of EPA's influential Integrated Risk Information System (IRIS) assessment program have started preparing colleagues in regional and program offices that use IRIS assessments in their regulatory work for novel risk specific dose calculations that will be included in the pending assessment of arsenic's human health risks.
The assessment aims to implement advice the National Academy of Sciences (NAS) gave the agency in a seminal 2009 report on risk assessment and a 2013 report on the long-running arsenic assessment. NAS has urged EPA to harmonize risk assessment by performing a non-cancer assessment in a method similar to that traditionally used only for cancer assessment. Such an approach provides risk managers more information and allows for the all-important cost-benefit analyses that underlie many agency rules.
Speaking Dec. 2 at the first meeting of the second phase of NAS arsenic review in Washington, D.C., Vincent Cogliano, director of the IRIS program, called the risk harmonization recommendation "one of the most far reaching and different of the recommendations." While the approach is "rather different from the way EPA tends to do things," IRIS scientists are following the recommendation, he said.
"The risk assessment input we would be giving would be a dose-response curve where hopefully we can estimate our risks down to the doses our program offices need, and if not maybe some guidance on how far down below that we can extrapolate with some reasonable level of confidence," he said.
Cogliano went on to add that because the assessment will provide risk managers with different kinds of risk estimates than they are used to seeing, particularly for non-cancer risk numbers which are traditionally thresholds below which no adverse health effect is expected, program offices "will need to be comfortable" with the new approach.
"The recommendations in your 2013 report . . . call for some very novel dose-response approaches, and right now our agency risk management approaches generally know how to use slope factors and reference doses. And we'll be giving them a noncancer dose-response function. We're already having periodic meetings with them," Cogliano said.
One NAS committee member, Gary Ginsberg, a senior toxicologist with the Connecticut Department of Health, asked Cogliano if IRIS will release a guidance document to the program and regional offices to assist them in using the novel risk estimates in the arsenic assessment.
Cogliano indicated guidance may be considered, and that if undertaken, it will be crafted in collaboration with interested staff from other offices in a partnership.
NAS committee members also questioned EPA officials about the time line for NAS review of the draft assessment -- something that likely will not occur until the end of next year -- and how the agency is evaluating the studies it is using in the assessment.
NAS' Recommendations
NAS' recommendations in the 2013 arsenic report differed from its 2009 report, "Science and Decisions," due to the rare wealth of environmental toxicity data available regarding arsenic exposure -- a fact highlighted by both NAS and Cogliano in his remarks. For arsenic-related health effects with the greatest amount of data, the NAS committee suggested that extrapolation could be avoided, and the entire dose-response curve plotted with data, avoiding the controversial extrapolation altogether.
Cogliano reminded the committee during his remarks that the approach is unlikely to become a normal practice at EPA because few if any of the chemicals have the wealth of data that arsenic does.
How to extrapolate cancer risk from traditional high-dose toxicology studies to the lower doses that most Americans experience in the environment is a long-standing controversy in many dose-response analyses, and the long-running arsenic IRIS assessment is a prime example.
Five years ago, EPA released for partial peer review a significantly more stringent draft assessment than the 1991 published IRIS assessment EPA is trying to update. That draft included a linear extrapolation cancer modeling approach, which assumes that there is no safe level of exposure to a toxicant. EPA uses this approach, intended to be a health protective default, when a toxicant has a mutagenic mode of action (MOA) or biological means of causing cancer, or if it has what the agency considers insufficient information to determine an MOA.
The 2010 draft also used controversial Taiwanese epidemiology data, resulting in risk values that critics warned would have driven unattainable and cost-prohibitive drinking water, soil cleanup, pesticide safety and other regulatory limits. The following year, Congress required EPA to undergo NAS review of the assessment before completing it.
NAS in its 2013 report urged EPA to step away from its controversial default application of a linear method for assessing arsenic's cancer risks. The report argued that there is sufficient information about the ubiquitous metal to drop the traditional approach that results in very strict risk estimates. The report also encouraged EPA to focus on newer epidemiological studies than the Taiwanese data, including some populations exposed to much lower levels of arsenic to form the basis for modeling the dose-response curve and reduce the need for extrapolation.
"The [NAS] committee proposes a limited extrapolation by using the modeled shape of the dose-response relationship to provide a data-informed estimate of the potential dose-response relationship below the range of observation," the report says. "EPA could use different models and present the risk estimates that would result to illustrate the magnitude of the impact of selecting one model over another. Justification should be provided for the chosen model, including any policy considerations that were factored into the decision."
Concern over how IRIS scientists will extrapolate arose again during the latest NAS meeting, with one new committee member, Jay Goodman, questioning an approach proposed by one of the IRIS arsenic chemical managers, Ila Cote, to move away from a MOA approach to a similar, but more general approach known as adverse outcome pathway. Goodman, a professor of pharmacology and toxicology at Michigan State University, questioned whether a certain outcome might lead the IRIS team to conclude that arsenic had a non-linear dose-response and certain doses were below threshold.
A contractor for EPA performing toxicokinetic analyses for the arsenic assessment, Bill Mendez, replied that "there are no assumptions of linearity . . . and no assumptions of threshold, either."
Cote added, "We're trying to let the data speak for itself."
A returning committee member, Hugh Barton, an associate research fellow at pharmaceutical giant Pfizer, praised Cote's response. "That's great to hear, because that was one of the strongest recommendations in our last report," he said. "Let the data speak for itself so people stop arguing about extrapolation."
Dose-Response Analysis
But another member of the IRIS team, Jeff Gift, who spoke at the meeting about the ongoing dose-response analysis work, offered the cautionary note that the data-rich approach "is not possible for all [health] endpoints."
After the concerns over EPA's 2010 draft, Congress later required that EPA seek the ongoing NAS review of its assessment. NAS designed the arsenic IRIS assessment in two parts. The first crafted the 2013 report, which reviewed existing literature about arsenic, tiered health effects with the greatest causal link for EPA risk assessment, and recommended approaches for assessing the effects.
The second phase, undertaken by a committee with a mix of returning members and new ones was intended to peer review EPA's draft arsenic assessment. In the two years since NAS released its recommendations, EPA has yet to complete a draft, and Cogliano told committee members it will be some time before they receive a draft to review.
Questioned about the draft assessment's time line by committee chairman Aaron Barchowsky, a professor of environmental and occupational health at the University of Pittsburgh, Cogliano said that IRIS' arsenic team is working to get a draft completed in the next six to nine months, "maybe next summer." That draft will then undergo intra-agency review and inter-agency peer review, revisions, public comment and more revisions per the IRIS development process before it will be made available to NAS for peer review, Cogliano said.
The time line appeared to be of concern for some members of the NAS committee, with one questioning where the NAS committee fits into the process.
Ginsberg raised another concern, noting that IRIS staff had provided "some very specific" evidence tables in remarks before the first arsenic committee more than two years ago. He asked the IRIS speakers "at what point do you stop accumulating [information] and crunch the numbers?"
The arsenic co-chemical manager, Janice Lee, outlined at length the team's efforts to gather and systematically review all of the relevant arsenic data. Starting with some 43,000 studies, she described a process using both computational tools and human review to winnow that number of studies to some 575 studies "to conduct a full text review to determine relevancy for hazard identification," according to her presentation slides. She indicated that the team adopted a systematic review approach crafted by the National Toxicology Program two years ago for its process.
Systematic review is an approach that the IRIS program has been evaluating and seeking to implement over the past several years, following a critical NAS review of its draft assessment of formaldehyde in 2011. A second, 2014 report, reviewing the IRIS program, praised the approach. Generally, the methodology includes creating pre-determined criteria for studies that will best address the research question at hand, and then searching and reviewing the literature for such studies. Derived from the evidence-based reviews of medical literature, the approach is intended to provide the highest quality data for answering questions and transparently presenting how conclusions are reached.
'Risk Of Bias' Evaluation
One key concern for stakeholders has been the whether the "risk of bias" evaluation of studies -- criteria designed to identify studies with methodological weaknesses, would include funding source. Environmentalists have pressed EPA to consider studies' funding source, arguing this can bias results, while industry representatives have argued that studies should be judged on their merits alone.
Goodman asked Lee if the team's risk of bias evaluation included "where studies were performed or who's funding the study? Is a study funded by industry viewed automatically as with some suspicion . . . ?"
Lee replied that funding source was not included in the team's risk of bias evaluation. Cogliano jumped in to further clarify that "We really evaluate all studies on their merits, their conduct, their design, their merits."
Lee also added that for the arsenic assessment, the IRIS team would be adopting classification language for non-cancer assessments. This is another difference between how IRIS has traditionally handled cancer and non-cancer assessments. Cancer assessments received classifications, such as "human carcinogen" or "likely human carcinogen," while no such classifications existed for levels of causative information available for non-cancer effects.
Lee indicated that the team has decided to adopt the classification system used by the Integrated Science Assessment (ISA) program, also based in the National Center for Environmental Assessment with the IRIS program. EPA scientists perform ISAs on five-year cycles to support the reassessments of the six criteria pollutants identified in the Clean Air Act. The classifications are used to describe the level of evidence underpinning the causative relationship between an environmental toxicant and a human health effects. The ISA classification system includes the terms causal relationship, likely to be a causal relationship, suggestive of a causal relationship, inadequate to infer a causal relationship, and not likely to be a causal relationship.
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Evolving Chemical Issues Drive Change at Law Firms
Dec 10, 2015 | BNA Daily Environment Report
By Pat Rizzuto
The upsurge of new and modernized chemical regulatory regimes in other countries coupled with legislative and regulatory action by U.S. states has spurred law firms to expand their chemicals practice over the last decade.
Advancements in nanotechnology and genetic engineering also are spurring new legal questions for law firms to address, attorneys told Bloomberg BNA.
Scientific innovations have made it even more important than years ago to have scientists from diverse disciplines within the law firm, according to Seth Goldberg, an attorney with Steptoe & Johnson LLP.
Goldberg, along with attorneys and their colleagues from three other law firms, discussed with Bloomberg BNA ways their chemical practices are changing with technological advances and how they have changed in the 10 years since REACH became law.
Expansion
REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals) became law in 2006 in the European Union, Iceland, Liechtenstein and Norway. Since then, Bergeson & Campbell PC has seen “tremendous growth” said Heidi Brown Lewis, director of marketing for the firm. “We've more than doubled the size of our U.S. team, adding attorneys, scientists and regulatory professionals, many with high-level experience in regulatory agencies.”
In addition to its Washington headquarters, Bergeson & Campbell opened a consulting affiliate, the Acta Group, in Manchester, U.K., as well as an office in Beijing, and established partnerships in South Korea, California and New York to address chemical regulations, she said.
Each of the four law firms defined chemical regulations broadly to include assisting clients with commercial chemicals, food additives, genetically modified organisms, hazardous materials, pesticides, product-safety requirements of the Consumer Product Safety Commission and other issues.
Goldberg said the staff of Steptoe's chemicals practice has doubled during the past 10 years, particularly in Europe and China.
The firm now has nine full-time lawyers and non-attorney specialists working on chemicals in Brussels and two full-time professionals in Beijing, said Kathy King, director of public relations at Steptoe.
Different Countries; Analogous Stages
Goldberg said the additional staff help Steptoe's clients participate abroad in each stage of a law or regulation's development just as they do in the U.S.
The specific process of how a law or regulation is developed and how a law firm interacts with legislation or regulations under development in each country or region differs, he said.
The basic steps, however, are analogous, Goldberg said. They include:
• the development phase that involves meeting with local officials to get clients' views on the table;
• some form of consultation or notice-and-comment phase;
• refinement of the legislative or regulatory proposals including more meetings with officials;
• issuance of the law or regulation;
• development of guidance or other materials coupled with more meetings; and
• implementation, helping clients work through the new process to get their chemicals to market.
The effort Steptoe expends on each of these steps differs, depending on the country or region, Goldberg said.
In China, the law firm spends more time securing the approval of a specific chemical than it does in Europe, he said.
In Europe, however, the firm spends more time on issues such as appealing decisions made by the European Chemicals Agency and working to get the specific use of a chemical authorized, Goldberg said.
Leveraging Expertise
K. Russell LaMotte, an attorney with Beveridge & Diamond PC, said that firm follows a different model than many others. It doesn't maintain overseas offices and therefore hasn't opened additional offices abroad.
Its partnerships with attorneys, consultants and other professionals around the world, however, have grown as the global regulatory landscape has gotten more complicated, according to LaMotte.
Law firms in other countries often don't have a chemical regulatory expert, he said.
“Companies have been relentlessly innovating. Our whole business model is to follow business's lead.”
—Lynn Bergeson, Bergeson & Campbell PC
“In a country such as Japan, for example, there typically are very few environmental lawyers and none that focus on chemicals,” he said.
Beveridge & Diamond's partnership approach leverages the expertise of its U.S. attorneys that have in-depth knowledge about a particular chemical or pesticide with local attorneys who know key officials in and the regulatory culture of another country, LaMotte said.
Chemical manufacturers face common challenges in diverse countries and this approach allows a consistent team of Beveridge & Diamond's attorneys to address the challenges quickly wherever they occur, said Mark Duvall, who directs the firm's Toxic and Harmful Substances practice and Aaron Goldberg, who specializes in regulations designed to prevent chemicals from being diverted for illicit purposes.
Lost in Translation
Lynn Bergeson, managing partner of Bergeson & Campbell, said the firm's growing international practice and in-house scientific expertise has made her acutely aware of the need for specialized translators.
The in-house expertise of a toxicologist and medical doctor fluent in Mandarin has been particularly helpful, she said.
Translations are challenging on their own, but translating chemical information is particularly “dicey,” Bergeson said.
It is critical to have or work with individuals who have the technical and cultural knowledge to accurately translate information and complete needed forms, she said.
Lawrence Culleen, with Arnold & Porter LLP, said the law firm has strengthened its supply chain work.
During the past 10 years, companies up and down the supply chain want more assurance that the chemical or other product they are buying complies with applicable regulations, he said.
Arnold & Porter's long-standing expertise in product safety regulations and litigating toxic tort claims has positioned it to meet the demand to address chemical issues from multiple perspectives, Culleen said.
‘Getting to Yes.'
Bergeson said scientific developments in nanotechnologies, biotechnologies and other emerging technologies have played a profound effect on her firm's practice.
Her firm highlights new global policies and important developments for such technologies in a blog, called Nano and Other Emerging Technologies.
“Companies have been relentlessly innovating,” she said. “Our whole business model is to follow business's lead.”
The law firm's attorneys working with former government officials and multidisciplinary scientific teams understand how existing regulations can be applied to new innovations, she said.
Applying regulations to new technologies always brings about “the inevitable ‘square peg fitting into a round hole phase,’ ” Bergeson said.
“We get them to yes,” she said, meaning her scientists and former regulatory officials work with the regulators to understand how the new technology can be managed under existing rules.
Evolving Science
Not only are the technologies being used to make products changing, so too is the safety science regulators are demanding, said Steptoe's Goldberg.
More stages of a product's life cycle are now part of the regulatory review, he said.
For example, some regulations require that a company consider during a product's design the effect its disposal would have on human health or the environment, he said.
Further, he said, “The kinds of toxicology studies being required are becoming increasingly sophisticated.”
As just one example, he pointed to increased regulatory use of structure activity relationships in which toxicity or other data from one chemical is applied to chemicals with similar structures.
Companies and agencies are using new in silico, or computer-based, models to predict toxicity and exposure, he said.
New toxicity concerns, such as endocrine disruption, have taken on a greater importance in regulatory reviews during the past 10 years, according to Goldberg.
Lawyers and the scientists with whom they work have to understand the current state of the science and be able to effectively argue their points, he said.
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(ACC Mentioned) Rail Reform Bill On Track To Clear Congress This Week
Dec 9, 2015 | The Journal of Commerce
By Reynolds Hutchins
U.S. lawmakers are expected to pass an overhaul of the Surface Transportation Board, giving the nation’s main freight rail regulator more teeth to crackdown on service issues and boost competition in the industry.
The bill’s sponsors say they are confident the legislation will arrive on President Obama’s desk before the new year.
Sens. John Thune, R-S.D., and Bill Nelson, D-Fla, introduced the Surface Transportation Board Reauthorization Act of 2015 in March.
Under Thune and Nelson’s plan, the STB would gain expanded investigative powers, additional funding and two more chairs, bringing the total membership from three to five.
The additional two members will allow the board to discuss matters outside of public hearings, which was impossible under under current administrative rules that require open hearings if a majority of the regulatory body meets.
Additionally, the bill allocates $176 million over the next five years, up from the $31.4 million the STB got in the fiscal year that ended Oct. 1 and a more far-reaching allocation than the single-year extensions the STB has received since its authorization expired in 1998.
Thune and Nelson’s bill also eliminates holdover limitation and allows for limited board meetings without initial public meeting notice, but with later public disclosure. The bill also allows the board to initiate some investigations, not just respond to complaints, and would require the STB to establish a database of complaints and prepare quarterly reports on them.
Thune and Nelson’s bill would change the case review process, too, requiring the board to establish timelines for stand-alone rate cases and a report on rate case methodology. The bill would also codify an arbitration process for certain rate disputes and carrier complaints.
Since 1996 and the dissolution of the Interstate Commerce Commission, the STB has had economic regulatory oversight over U.S. freight railroads. Run by a three-member, bipartisan board, the agency has jurisdiction over railroad rate reasonableness, mergers, line acquisitions, new rail-line construction and line abandonment.
Since 1996, however, the STB has never been reauthorized or “substantively reformed,” according to Thune and Nelson.
Considered one of the most ambitious directives on rail oversight in the past two decades, the bill has been met with high praise from the likes of the American Chemistry Council, Consumers United for Rail Equity and others rail shipper groups, representing soybean farmers to scrap recyclers. Even the rail industry, which originally opposed a similar reauthorization bill that failed to pass Congress last year, has lent its support to the latest legislation.
Shipping delays beset U.S. railroads in 2014, as record grain harvests and oil production strained the nation’s rail network. Farmers complained that oil shipments from the Bakken shale formation received special treatment over crops. Rail officials said aging tracks and a shortage of train cars, locomotives and crews were behind the delays. All agreed that a recovering U.S. economy was putting more business on the rails overall.
The Association of American Railroads, the main U.S. rail lobby group, initially expressed strong reservations over Thune and Rockefeller’s pitch for STB reauthorization in 2014. AAR President and CEO Edward R. Hamberger said railroads had several serious concerns with the Thune-Rockefeller bill, first among them legislation that would give the STB the authority to cap rates and require railroads to turn over traffic to competitors.
AAR warned Congress in September 2014 that if the Thune-Rockefeller legislation proceeded without alteration it "would harm the nation's railroads' ability to move what the economy demands and deliver the service shippers expect. The railroad industry would not be able to continue to reinvest record amounts of private capital into the freight rail system if the STB Reauthorization Bill passes in its current form."
A year later, AAR has changed its tune.
“The freight rail industry thanks the Senate Commerce Committee for its leadership and the attention spent working to address the concerns important to the railroads,” the group said in a statement. “The bill, as introduced, should not be opposed.”
Thune and Nelson’s bill passed a Senate vote in June under unanimous consent, meaning there was no formal recorded vote. House leadership scheduled the bill on the calendar for a possible vote on Tuesday, but no vote occurred. The bill, however, is still expected to pass without objection sometime this week.
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Senate Committee Passes Pipeline Reauthorization Bill
Dec 10, 2015 | BNA Daily Environment Report
By Rachel Leven
A Senate committee passed Dec. 9 by voice vote—with a number of amendments—a bipartisan bill to reauthorize pipeline safety programs through 2019.
Among the changes included in the Senate Commerce, Science and Transportation Committee-passed SAFE PIPES Act (S. 2276) that reauthorizes pipeline programs within the Pipeline and Hazardous Materials Safety Administration are provisions that would:
• ensure a consulting role for the nation's pipeline safety regulator in the Federal Energy Regulatory Commission natural gas pipeline infrastructure pre-filing and permitting process;
• protect state pipeline authorities' ability to aid in inspection and oversight of interstate pipelines;
• require gathering of information regarding federal tracking of natural gas leaks and states' natural gas leak policies; and
• force withdrawal of a Transportation Department interpretation letter on marking requirements related to certain petroleum distillate fuel cargo tanks.
S. 2276, as it was introduced by Sens. Deb Fischer (R-Neb.), Cory Booker (D-N.J.), Steve Daines (R-Mont.) and Gary Peters (D-Mich.) on Nov. 10, would lower maximum funding levels and require that existing mandates be examined and addressed before PHMSA begins new rules. It would also give the agency direct hire authority and require a number of studies, reviews, rules and other mandates such as requiring the agency to develop “minimum safety standards” for underground natural gas storage facilities (218 DEN A-13, 11/12/15).
S. 2276 will now be sent for a full Senate vote, although timing for that vote is unclear. The vote is not expected to occur this month, according to a commerce committee spokesman.
“The SAFE PIPES Act is an important step forward to improve the protection of pipeline river crossings, fill vacant inspector positions and facilitate communication between PHMSA and state agencies,” Daines said in a statement. “This is a strong, bipartisan bill that will enhance pipeline safety, promote economic opportunity and help protect our environment.”
Pipeline safety programs authorization ended Sept. 30. The House still hasn't introduced a reauthorization bill.
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Senate Panel Advances Four-Year Pipeline Reauthorization Bill
Dec 9, 2015 | Roll Call
By Kellie Mejdrich
The Senate Commerce, Science and Transportation Committee Wednesday sent a four-year reauthorization of pipeline safety programs to the full Senate by voice vote.
The bill (S 2276) would increase authorized funds for federal pipeline safety programs under the Department of Transportation by about 40 percent in fiscal 2016 and increase the amount available from a trust fund established to help pay for oil spill cleanup by almost 7 percent in the current fiscal year from fiscal 2015. Safety programs were last reauthorized in a 2012 law (PL 112-90) that expires at the end of this year.
Sen. Deb Fischer, R-Neb., the bill’s sponsor, told the panel the legislation would ensure the Pipeline and Hazardous Materials Safety Administration completes work required by the last reauthorization, addresses staffing challenges and establishes minimum standards for natural gas storage facilities.
PHMSA has been under fire for its management of pipeline safety programs. During a hearing convened by Fischer in September, the agency was sharply criticized for failing to carry out safety recommendations and slowness to issue regulations, which industry groups have complained cause uncertainty.
Senate Commerce Chairman John Thune, R-S.D., said after the markup it was “very unlikely” the bill could move much this year, but he is hopeful “we can get it to the floor some time next year, and hopefully get it to the president’s desk some time next year.”
Unlike surface transportation programs, pipeline programs keep running in the event authorization lapses.
The last pipeline program reauthorization, in 2012, followed a gas explosion in San Bruno, Calif., in 2010 that killed eight people and destroyed 38 homes. This year, a pipeline rupture near the coast in Santa Barbara County, Calif., caused major environmental damage and raised questions about state and federal pipeline program effectiveness.
Senators adopted a substitute version of the bill with five additional amendments, including one from Sen. Edward J. Markey, D-Mass., that would require a federal audit of state policies on natural gas leaks. Increased Authorization
Authorization levels for the Department of Transportation pipeline programs would increase under the bill from approximately $91 million a year to $127 million in fiscal 2016, and then increase each year to just over $135 million in fiscal year 2019.
Authorization from the Oil Spill Liability Trust Fund would also rise from approximately $18.6 million a year to about $19.9 million in fiscal year 2016, and then increase to $21.1 million in fiscal 2019.
The bill makes a number of policy changes, including restricting resources for further pipeline safety rulemakings until current rulemaking work is completed; directing the Transportation Secretary to consider establishing a national pipeline inspection database; requiring minimum safety standards for underground natural gas storage facilities within two years of the bill’s enactment; and adding the Great Lakes as a high risk area for pipelines.
Fischer said the underground storage standards were requested by Kansas's two Republican senators: Jerry Moran and Pat Roberts.
Moran told the panel that Kansas utilities regulators and others in his state were anxious for PHMSA to develop the regulations.
In a move that affects more transportation programs than just pipelines, the bill would also require a federal audit of the Transportation Security Administration’s pipeline security programs and other surface transportation programs.
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Nebraska Court Dismisses Lawsuit Over Pipeline Law
Dec 10, 2015 | BNA Energy & Environment Blog
By Christopher Brown
A Nebraska court has dismissed one of two lawsuits filed by landowners against TransCanada Corp. challenging a state law that gave the governor the authority to approve a route for the proposed Keystone XL pipeline (Steskal v. TransCanada Keystone Pipeline LP, Neb. Dist. Ct., CI 15-6, dismissed, 12/4/15).
The Dec. 4 ruling came one month after President Barack Obama announced that his administration had rejected TransCanada's application to build the project and two months after TransCanada had said that it would withdraw from Nebraska litigation over a proposed pipeline route that had been approved in January 2013 by then-Gov. Dave Heineman (R) (216 DEN A-1, 11/9/15).
The lawsuit had been filed in January 2015 by 43 landowners in Holt County, Neb., whose land was the subject of condemnation proceedings filed by TransCanada in an effort to secure easements for the proposed pipeline .
The plaintiffs argued that the pipeline-siting law violated the Nebraska Constitution on a variety of grounds, including that it illegally gave authority over a common carrier to the governor.
But the court ruled that the lawsuit had been rendered moot after TransCanada dismissed Oct. 1 the underlying condemnation proceedings and that the public-interest exception to the mootness doctrine didn't apply.
“The dismissal of the condemnation proceedings, coupled with the two-year limitation to commence such proceedings, has emasculated the justiciable dispute requirement,” the court said. “Plaintiffs invite the court to summarily pass upon the constitutionality of [the pipeline-siting law]. It is not inclined to do so. The foregoing issues raised by the Second Amended Complaint are moot.”
Ruling About Mootness Only
Brian Jorde, a partner with Domina Law Group PC LLO in Omaha, Neb., who represented the plaintiffs, told Bloomberg BNA Dec. 9, “The important thing to remember is that this ruling was about mootness and had nothing to do with the merits of our lawsuit over the pipeline-siting law. The judge in this ruling pointed out that every judge that has addressed the constitutionality of the pipeline siting law has found it to be unconstitutional, including four members of the state Supreme Court. Should TransCanada or another company try to use this law to win approval for a future pipeline, we will be ready to fight it again.”
Jorde also represents landowners in an identical lawsuit filed in York County, Neb., where the court has set a hearing on TransCanada's motion to dismiss for Dec. 18 (Dunavan v. TransCanada Keystone Pipeline LP, Neb. Dist. Ct., CI 15-12, hearing scheduled, 12/18/15).
Jorde said it was likely that the judge in that lawsuit would “adopt the same stance.”
In a statement, Mark Cooper, a TransCanada spokesman, said, “After voluntarily withdrawing the eminent domain cases, TransCanada asked the court to dismiss the case on the grounds that the issues in this case are moot. We did so because we chose to pursue approval of Keystone XL via the Nebraska Public Service Commission. The Court agreed with TransCanada that these issues are moot and that the public interest exception argued by the plaintiffs does not apply.”
Application Withdrawn
Cooper told Bloomberg BNA Dec. 9 that TransCanada had withdrawn its application for route approval from the Nebraska PSC in the wake of Obama's rejection of the Keystone project and that the company is now “considering our next steps.”
“We felt, considering that the PSC is bound by a seven to 12-month timeline in considering our application, that it would be inappropriate and unfair to ask them to keep the clock running while we take the necessary time to determine our approach,” Cooper said.
Speaking more broadly of the future of the Keystone-pipeline project, Cooper said the company has “continued to receive support for the project from landowners, legislators and labor organizations, among others.”
“We continue to believe without a doubt that Keystone XL is in the economic, environmental and geopolitical interests of the United States, and we are looking at all available options in getting it built,” he said.
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Enbridge, U.S. Fend Off Challenge to Pipeline Expansion Plan
Dec 10, 2015 | BNA Daily Environment Report
By Andrew Harris and Rebecca Penty
Enbridge Inc. and the U.S. State Department beat back a legal challenge to the Canadian company's plans to increase the capacity of its cross-border Alberta Clipper oil pipeline.
A federal court judge in Minneapolis on Dec. 9 ruled he doesn't have the authority to review preliminary government authorizations on the project, actions he called “presidential in nature” (White Earth Nation v. Kerry, D.Minn., 14-cv-04726, 12/9/15)
Calgary-based Enbridge has been waiting since 2012 for a State Department decision on a permit allowing it to almost double the conduit's capacity. That determination was made more fraught by President Barack Obama's rejection last month of TransCanada Corp.’s plan to build another cross-border pipeline, the Keystone XL.
Enbridge found a temporary way last year to boost shipments on its existing Alberta Clipper system, by switching crude from one pipeline to another before it crosses the border, while waiting out the permit process. The State Department said it would allow that work-around, according to the ruling.
The State Department's consideration became the catalyst for the lawsuit, filed in November 2014 by the White Earth Nation, a Native American tribe in Minnesota, asserting the U.S had violated federal environmental and historic preservation laws.
Rejecting the challenge, U.S. District Judge Michael J. Davis said that “overwhelming authority supports a finding that the State Department's actions in this case are presidential in nature, and thus not subject to judicial review.”
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'Alberta Clipper' Decision Can't Be Challenged, Judge Rules
Dec 9, 2015 | E&E News PM
By Jeremy P. Jacobs
A federal judge today rejected a bid by environmental groups and Native American tribes to block a major oil sands pipeline that crosses the U.S.-Canada border.
The Sierra Club, the National Wildlife Federation, White Earth Nation and others sued to challenge the State Department's 2014 approval of two proposed actions from Enbridge Inc. that they say required environmental review: modifications to a new pipeline called the Alberta Clipper and a bypass proposal that they claim was designed to sidestep scrutiny.
But federal District Judge Michael Davis in Minnesota said the State Department's approvals -- which amounted to letters saying the pipeline upgrades were consistent with earlier presidential permits -- are not eligible to be challenged in court.
"[T]he overwhelming authority supports a finding that the State Department's actions in this case are Presidential in nature, and thus not subject to judicial review," Davis wrote, citing previous court rulings.
The Alberta Clipper and Enbridge's other actions along the border have become a rallying cry for environmentalists since President Obama rejected TransCanada's Keystone XL pipeline earlier this year.
In total, Enbridge's proposals would allow its pipelines to carry roughly the same amount of oil sands from Alberta into the United States every day as Keystone XL would have. And because they cross the U.S.-Canada border, the pipelines fall under the State Department's purview, with final decisions resting with the president.
Enbridge's pipeline plan is more complicated than the Keystone XL. It concerns two pipelines: Line 3 and Line 67, the Alberta Clipper line.
They both follow the same route, running about 1,000 miles to transport crude from Alberta to Superior, Wis. Line 3 was originally built in the late 1960s after receiving a presidential permit in 1968.
Construction of the Alberta Clipper began in August 2009. It received a presidential permit that year to carry about 450,000 barrels per day.
Starting in 2012, Enbridge began taking steps to expand the capacity of both lines. It asked the State Department to update its permit for the Alberta Clipper to carry 800,000 barrels per day.
The State Department then began conducting an environmental review under the National Environmental Policy Act of that request.
While that review was ongoing, Enbridge two years later requested to make changes to Line 3. It said Line 3 needed maintenance, as required under its permit, including replacing the pipeline crossing the border.
It also sought permission to create a bypass system that would connect the Alberta Clipper to Line 3 both in Canada and, separately, in the United States.
In July 2014, the State Department said the interconnections do not require new authorizations.
The environmentalists contend that the new bypass system is an attempt to skirt environmental review of the new Alberta Clipper line, which they now call the "Quiet Keystone," by using Line 3's transboundary section.
Enbridge's bypass plan, they say, allows the Alberta Clipper and Line 3 to carry significantly more crude into the United States without being subject to a full NEPA review.
The judge today, however, didn't rule on the merits of their claims. Davis said the State Department's approvals were only its interpretations of presidential orders. They did not, therefore constitute final agency actions that are eligible to be challenged in court.
Ken Rumelt of the Vermont Law School, the lead attorney in the case, suggested that the environmentalists are considering appealing the ruling.
"We are disappointed with the decision, which essentially says 'the courts can't help you,'" Rumelt said in a statement. "We will be considering various options."
And Jim Murphy of the National Wildlife Federation called on the president to step in and disapprove the projects.
"The administration," he said, "should put a halt on this expansion and first take a promised hard look at the serious consequences from spills and carbon pollution that tar sands expansion will have on the natural treasures of this area."
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(ACC Mentioned) Court Should Review Clean Power Plan Legality First
Dec 10, 2015 | BNA Daily Environment Report
By Andrew Childers
Opponents of the Clean Power Plan are asking a federal appellate court to first address whether the Environmental Protection Agency has the legal authority to issue the rule before tackling specific challenges to how the regulations are implemented (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion filed 12/8/15).
In a motion filed Dec. 8 in the U.S. Court of Appeals for the District of Columbia Circuit, petitioners asked the court to expedite the briefing schedule for challenges to the EPA's fundamental authority to issue the carbon dioxide standards for power plants and then sever challenges to the implementation of the rule to be addressed in a separate docket.
“This will enable the Court to resolve promptly the foundational legal issues related to whether EPA has authority under the Clean Air Act (“CAA” ) to issue the Rule, and even if it does, whether Section 111(d) of the CAA, 42 U.S.C. § 7411(d), authorizes a rule like this rule,” the petitioners said. “Depending on how the Court resolves those foundational legal issues, briefing of the state-specific and record-based issues could be narrowed or avoided altogether.”
The expedited briefing schedule sought by the petitioners, including states led by West Virginia, utilities such as Luminant Generation Co. and industry trade groups, including the National Mining Association, the Chamber of Commerce and the American Chemistry Council, would see the lawsuit briefed and argued by May 2016, well in advance of the September deadline for states to submit their initial compliance plans.
The Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state, which would be implemented by state regulators. The rule is currently being challenged by 27 states as well as several utilities, unions and trade groups.
Petitioners Press Arguments
The petitioners in their motion pressed the argument that the EPA is barred from regulating carbon dioxide emissions from power plants under Section 111(d) of the Clean Air Act, because those units are already subject to hazardous air pollutant standards issued under Section 112, the mercury and air toxics standards.
Conflicting amendments were adopted to Section 111(d) when the Clean Air Act was last amended in 1990. The Senate language would bar the EPA from regulating pollutants under Section 111(d) that are already subject to limits under Section 112 while the House language prevents the EPA from regulating industrial sources such as power plants under Section 111(d) if they are already regulated under Section 112.
They also argue that the rule unlawfully forces states to reorganize their power sectors under threat of being subject to a federal plan if they fail to comply.
The petitioners also have asked the court to stay implementation of the Clean Power Plan during litigation, a request that's been opposed by the EPA, states that support the rule and environmental groups (236 DEN A-11, 12/9/15).
Court Urged to Expedite Review
Though the states have up to three years to submit their compliance plans and the first emissions reductions aren't required until 2022, the petitioners argue the D.C. Circuit should expedite its review of the Clean Power Plan, because states and utilities must begin planning their compliance strategies.
Though states can receive an extension on their final plans until 2018, the initial plan that must be submitted to the EPA by Sept. 6, 2016, will require significant effort on the part of regulators, they argued.
“The extension request criteria EPA imposes are not a simple ‘push the button' approach,” the petitioners said. “They require each state to have started identifying and developing how its electricity industry will be restructured, and presenting a draft initial plan to the public in sufficient detail to allow meaningful public feedback. If approved, state plans restructuring their electric systems become federally enforceable by EPA and through citizen suits, and are subject to revision only with the approval of EPA.”
The EPA's response is due Dec. 21.
State Concerns Could Be Addressed Later
Resolving the EPA's fundamental legal authority to issue the Clean Power Plan could obviate the need for the court to address more particular challenges to how the rule is being implemented, the petitioners argued.
The motion cites several state-specific concerns with the rule that need not be addressed by the court should the judges find the EPA lacks the ability to promulgate the Clean Power Plan.
Those include Arkansas's objection to how the EPA accounted for existing nuclear power generation in the state and an argument by South Dakota that the rule fails to take into account that the state's lone natural gas-fired and coal-fired power plants lack common ownership and serve different grids and customer bases.
They also include Kansas's argument over stranded assets for power plants that have already installed required pollution controls and Wyoming's belief that the rule doesn't sufficiently protect the greater sage grouse and other at-risk species.
Setting aside those state-specific challenges in a separate docket would be the most economical use of the court's time and resources, the petitioners argued.
Bifurcation, Severance Requested
“Bifurcation and severance of the fundamental legal authority issues from the challenges to the programmatic elements, and speedy briefing and resolution of the former, will promote the fair and efficient management of these cases, and is in the interest of judicial economy,” they said. “It will allow the court to resolve whether EPA has any authority under the CAA to adopt the rule before addressing the multitude of complex and fact-based individual issues relating to the rule's implementation.”
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Local Fracking Bans Said to Impede Colorado's Interest
Dec 10, 2015 | BNA Daily Environment Report
By Tripp Baltz
Local attempts to ban or impose a temporary halt to hydraulic fracturing impede Colorado's role in fostering the responsible development of its oil and gas resources, an industry attorney argued before the state Supreme Court Dec. 9 (City of Longmont v. Colorado Oil and Gas Ass'n, Colo., No. 2015SC667, oral argument, 12/9/15; City of Fort Collins v. Colorado Oil and Gas Ass'n , Colo., No. 2015SC668, 12/9/15).
“I don't know how there can be a finding [that] a complete ban does not impede the state interest,” said Mark J. Mathews of Brownstein, Hyatt, Farber & Schreck in Denver Dec. 9, attorney for the Colorado Oil and Gas Association (COGA), which sued Longmont, Colo., for a fracking ban approved by voters in 2012 and Fort Collins, Colo., for a five-year moratorium on the drilling technique that voters approved.
Attorneys for the municipalities said even with the restrictions, oil and gas operators can develop natural gas and oil using alternatives to fracking, which involves the high-pressure injection of water, chemicals and sand into tight shale formations deep underground to release hydrocarbon resources.
“Operators can and will continue to do that without fracking,” said Daniel Kramer of the Longmont city attorney's office, representing the city in oral arguments before the Colorado Supreme Court.
The question in two appeals before the court is whether home-rule cities in Colorado are prohibited from promulgating local land use regulations that prohibit the use of fracking if the state Oil and Gas Conservation Commission is the “dominant” regulator of drilling in the state.
COGA Sued Following Voters' Restrictions
After voters approved the restrictions, COGA sued, saying the restrictions were preempted by state law. The commission and Top Operating Company, an energy producer with a permit to drill in Longmont, intervened in the case with COGA, while four environmental groups joined Longmont as defendant-intervenors.
Lower district court rulings in Boulder and Larimer counties, coming on motions for summary judgment, found in favor of the industry, saying that while local interests are strong in protecting the environment, safety and public health, they don't outweigh the state's interest in “fostering” oil and gas development(183 DEN A-17, 9/22/15).
In its appeal of the lower court ruling, Longmont said the court applied the wrong test for preemption and should have allowed the city to develop a full evidentiary record at trial, Kramer said.
“The state's interest is not in fracking,” he said. “The state's interest is in the production of oil and gas as long as it is consistent with health and safety. The question is whether fracking is necessary to achieve the state's interest. If alternative methods, such as underbalanced drilling, are just as efficient, just as economical as fracking, then the state's interest is not impeded.”
Fracking Called Pervasive
Mathews said fracking is “pervasive” among drilling operations in Colorado, and the commission rules clearly regulate aspects of fracking. “To say there is a split between oil and gas and hydraulic fracturing is an artificial distinction,” he said.
He said if the court applies the “operational conflict” preemption test to the question of who should regulate fracking, it will see that the local ban in Longmont and the five-year moratorium in Fort Collins “attempt to forbid what the state authorizes.” Under Colorado law, a local ordinance may be fully or partially preempted if its operational effect would conflict with the application of a state statute.
Mathews said the operational conflict of the Longmont ban was “clearly a straight conflict.” The lower court also found that fracking in Longmont was a “mixed local and state concern,” as opposed to a purely local concern. A state statute supersedes the local ordinance where a conflict exists, he said.
Temporary Delay
The justices heard arguments in the Fort Collins case following the arguments in Longmont. Representing Fort Collins, attorney Barbara Green of Sullivan, Green and Seavy in Boulder said the city doesn't have the intent to impede drilling but rather to enact a temporary halt of operations.
“We're not prohibiting anything. We're delaying it for a period of time,” she said. “The alternative is that industry says the state law allows it to drill anywhere at any time, for any length of time.”
Mathews said the operational conflict test applies in the case of Fort Collins as well. “There is no practical legal difference between a moratorium or a ban,” he said. “They can no more ban it for five years than they can ban it forever.”
If the court rules in favor of industry it will mean that local bans on fracking will not prevail in Colorado, Mathews said. “It doesn't mean they have no land use authority, just that they cannot ban,” he said.
‘More than Oil and Gas.'
Before the arguments, COGA issued a statement saying it's confident it will win the appeals.
“While oil and gas was the catalyst for the action, these cases are much more than just about oil and gas,” Dan Haley, COGA president and chief executive officer, said in the statement. “Depending on the outcome, the decisions could have tremendous impact across all businesses in Colorado and how and if they can operate in our communities if certain people just decide they don't like someone's business.”
A Longmont citizens' group, Our Health, Our Future, Our Longmont, said in a statement it is determined to “protect and defend our families, our children, our grandchildren from the enormous threats of fracking and its consequences.”
“We hope that the justices of the Colorado Supreme Court share our values and recognize that the people are the state's highest priority and are guaranteed by our constitution the right to our health, safety and welfare,” said Kaye Fissinger, president of the group.
Groups Joining in Lawsuit
The environmental groups that joined in the Longmont case on the side of the city were Food and Water Watch, the Sierra Club, Earthworks, and Our Health, Our Future, Our Longmont.
Amicus briefs were filed by the county of Boulder, the city of Boulder, Colorado Concern, the Denver Metro Chamber of Commerce, the Colorado Competitive Council, the Colorado Motor Carriers Association, the Colorado Farm Bureau, the Colorado Municipal League and the Mountain States Legal Foundation.
Many of the same parties filed amicus briefs in the Fort Collins case. They were also joined by the American Petroleum Institute and Citizens for a Healthy Fort Collins.
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Jewell Says She Has No 'Timeline' To Complete BLM Methane Rule
Dec 9, 2015 | PoliticoPro - Whiteboard
By Elana Schor and Alex Guillén
Interior Secretary Sally Jewell said today that the Bureau of Land Management's long-awaited rule for venting and flaring of methane produced by drilling sites on public lands may not be finished before she leaves her post.
"I don’t actually have a timeline" to finish work on the BLM rule, Jewell told reporters. "I know that it would certainly be my goal to have that rule finished during the time that I’m in this position. But there’s appropriate notification periods and working with OIRA and all of those things are necessary."
BLM is expected to officially propose the rule sometime this month, though the Obama administration's all-hands-on-deck push for a strong climate deal during this week's United Nations talks in Paris may well push that release date close to New Year's. A final rule is expected in June, according to the administration's regulatory agenda released earlier this fall, although those schedules sometimes slip.
The regulation also faces challenges from a predecessor rule governing well construction, chemical disclosure, and other aspects of the fracking process on federal lands that was recently stayed by a federal court.
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Spending Deal May Not Come Together Until Next Week
Dec 9, 2015 | E&E News PM
By Hannah Hess, Geof Koss and Manuel Quiñones
The House appears headed for a Friday vote on the short-term continuing spending resolution to keep the federal government open while lawmakers continue to negotiate a long-term deal.
Senate and House leaders have yet to say how long the CR will be for. House Minority Leader Nancy Pelosi (D-Calif.) told reporters today that she expected it to be "very short."
Ongoing talks are focusing on whether the spending bill will also include a measure to extend a slew of tax provisions. Policy riders also continue to jam the process.
House Appropriations Chairman Hal Rogers (R-Ky.) said "several dozen" riders, including a provision targeting U.S. EPA's Clean Water Act jurisdiction rule, were still part of the negotiations.
"There's a lot of unresolved issues. Some are being handled by leadership, and then a whole host of others will be considered at the committee level, so we've got a lot of work ahead of us," Rogers said. "We are making progress."
Sen. John Hoeven (R-N.D.) thinks there's a chance of getting the water rule rider in. "Obviously, nothing's final till everything's final, but it's certainly in the mix," he said.
If Democrats and Republicans can agree on a tax extender package, Rogers said he would have "no problem" with it being attached to an omnibus. Pelosi has expressed concerns about such a step.
House Speaker Paul Ryan (R-Wis.) "wants to push as much of this as he can to the committee level," according to Rogers, who commended Ryan for being "very effective."
Rogers told reporters not to expect text of the spending agreement until next week, although he later walked back that statement, saying he hoped for "a breakthrough that would propel us toward a bill soon, but it's too early to predict that."
Also on the table is a measure to lift restrictions on crude oil exports. Democrats would likely get concessions for agreeing to the proposal, potentially including no new policy riders.
Asked about progress on the exports front, Senate Minority Leader Harry Reid (D-Nev.) replied, "We're working on everything."
Hoeven said, "First of all, the oil export ban should be passed on the merits. And in the case of [the water rule], you've got a lot of bipartisan support, you got 11 Democrats on board. And I think if it's in there, it helps the whole package draw votes."
Interior Secretary Sally Jewell today reiterated the administration's position that it would not negotiate on riders, including one to block her department's proposed stream protection rule.
"We do not support the riders, and the stream protection rule is one of them," she said. "It's very important to the administration that that goes through."
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EPA Limits Emissions at Eight Texas Plants
Dec 10, 2015 | BNA Daily Environment Report
By Nushin Huq
The Environmental Protection Agency imposed sulfur dioxide limits on eight coal-fired power plants in Texas after disapproving portions of the state's regional haze plan, according to a final rule signed Dec. 9.
As a result, the EPA imposed a federal plan that sets sulfur dioxide emissions limits on 15 generating units at eight coal-fired plants in Texas and set a three-to-five-year deadline to come into compliance.
The EPA also raised concerns about Oklahoma's reasonable progress goals.
The EPA said it's ready to work with Texas to develop its state implementation plans, which would replace the federal plan outlined in its final rule. The rule is effective 30 days after its publication in the Federal Register.
The plants affected by the rule are Luminant's Big Brown, Martin Lake, Monticello, and Sandow coal plants, NRG's Limestone plant, GDF Suez's Coleto Creek plant, Xcel Energy's Tolk plant and the San Miguel Electric Cooperative plant.( 227 DEN A-6, 11/25/14)
Under the regional haze requirements, states must develop plans to improve air quality at national parks and wilderness areas.
The EPA disapproved of Texas's reasonable progress goals for improving visibility at Big Bend and the Guadalupe Mountains, the state's Class I areas, which are federally -protected parks and wilderness areas. Texas didn't demonstrate that its goals would provide for “reasonable progress towards meeting the national visibility goal,” the EPA said in its decision.
“We are finalizing our determination that Texas' analysis was deficient and not approvable because the large control set it selected was not appropriately refined, targeted, or focused on those sources having the most significant and potentially cost-effective visibility benefits,” the EPA said.
The Texas Commission on Environmental Quality could not be reached for comment.
Estimates of Natural Visibility Flawed
The agency also disapproved Texas's assessment of the emission reduction measures needed to achieve the uniform rate of progress covered by the state implementation plan. While Texas correctly followed the procedures for analyzing the rate of progress for attaining natural visibility conditions by 2064, the EPA found that the state's calculation was based on a flawed estimation of natural visibility conditions for Big Bend and the Guadalupe Mountains.
The reasonable progress goals for Big Bend and the Guadalupe Mountains were also disapproved by the EPA because the agency found that Texas failed to adequately justify reasonable progress goals that were less stringent than the ones under Section 51.308 (d)(1)(ii), the EPA said.
“Although we agree with Texas that a rate of improvement necessary to attain natural visibility conditions by 2064 is not reasonable, we do not find that the rate of improvement that Texas has selected is reasonable,” the EPA said.
The EPA also disapproved of Texas's calculations of baseline and natural visibility conditions for Big Bend and the Guadalupe Mountains.
The EPA also found that Texas didn't adequately coordinate with Oklahoma. Oklahoma's Class I area includes the Wichita Mountains. Their visibility is often marred due to electric generating units in Texas, but the EPA found that Texas didn't develop an adequate technical basis to inform consultations with Oklahoma in order to develop coordinated management strategies.
2018 Goals Approved
The EPA did approve Texas' reasonable progress goals for 2018. It also approved the state's monitoring strategy for the measuring, characterizing and reporting of regional haze visibility impairment within all Class I areas in the state.
The state's Best Available Retrofit Technology, or BART, determinations for non-electric generating units also were approved by the EPA, but the agency didn't finalize its proposed actions with regard to Texas's BART-eligible generation sources.
“Cleaning up haze pollution means clearer air in our treasured wild places,” Cherelle Blazer, organizing representative with the Sierra Club's Beyond Coal campaign, said in a statement. “It also means healthier air in cities across Texas—especially in the communities near these dirty coal plants. The EPA's plan allows Texans to enjoy the natural wonder of our state while also keeping our families safe at home.”
Oklahoma Goals Disapproved
The EPA also took final action to disapprove Oklahoma's reasonable progress goals. The EPA said Oklahoma's flawed consultation with Texas denied the state the knowledge it needed to properly construct its reasonable progress goals for the Wichita Mountains.
Because of the disapproval, the state may not adopt a reasonable progress goal that represents less viability improvement than is expected to result from implementation of other requirements of the Clean Air Act during the applicable planning period, the EPA said.
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EPA Rolls Out Final Haze Plan For Texas, Okla.
Dec 9, 2015 | E&E News PM
By Sean Reilly
U.S. EPA today unveiled a final regional haze plan for Texas and Oklahoma with little changed from a draft version that attracted fierce criticism from Texas Gov. Greg Abbott (R) and the state's electric companies.
The plan, which is intended to improve visibility at the national parks and wildness areas, calls for a reduction of sulfur dioxide emissions of about 230,000 tons annually at eight coal-fired plants in Texas. No Oklahoma facilities will be affected.
"It covers the same plants that they proposed to cover and requires the same emissions reductions," said Elena Saxonhouse, a staff attorney with the Sierra Club.
EPA rolled out the draft plan in November 2014 with the goal of improving visibility at the Wichita Mountains National Wildlife Refuge in Oklahoma as well as Big Bend National Park and Guadalupe Mountains National Park in Texas; the latter is home to the state's highest point, Guadalupe Peak, more than 8,700 feet tall.
The response from Abbott was caustic. "Whatever EPA's motivation, the results of the 'regional haze' rule are absurd, arbitrary, capricious and contrary to law," Abbott said in a comment filed in April. Not only would the plan cost more than $2 billion, he wrote, "it would do nothing to improve visibility in Big Bend or the Guadalupe Mountains."
An Abbott spokesman had no immediate comment this afternoon. At the Association of Electric Companies of Texas, which had also deemed the draft plan unlawful, President and CEO John Fainter said officials were still reviewing the final plan and were not yet in a position to comment.
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Obama Hasn't Received Carbon Resolutions To Veto
Dec 10, 2015 | BNA Daily Environment Report
By Anthony Adragna
More than a week after Congress passed two resolutions to nullify the centerpieces of President Barack Obama's efforts to fight climate change domestically, several Republican aides said legislators haven't yet sent copies of the measures to the White House for a sure veto.
Several current and former senior congressional aides told Bloomberg BNA the procedural process necessary before sending bills to the president—known as enrollment—could be completed in as little as 24 hours but usually takes between five and seven days.
“I have seen quite lengthy periods occur between enrollment and presentation to the president,” Chris Miller, former environmental adviser to Senate Minority Leader Harry Reid (D-Nev.), told Bloomberg BNA. “Fairly rare, but it does occasionally happen.”
The resolutions (S.J. Res. 23 and S.J. Res. 24) passed the House Dec. 1 after clearing the Senate Nov. 17. S.J. Res. 24 would strike down the Clean Power Plan (RIN 2060-AR33), which regulates carbon dioxide emissions limits for existing power plants, while S.J. Res. 23 would nullify a similar rule (RIN 2060-AQ91) for new and modified units (231 DEN A-2, 12/2/15).
Obama has vowed to veto both measures, which were passed on votes well short of the margins to override such an action. The House votes were timed to coincide with the start of international climate change negotiations in Paris.
Can Move Quickly
Multiple former Democratic aides said the process of moving legislation on to the president for consideration could be completed within a matter of hours when desired, but they said the Republican-led Congress controls the timing.
“The majority party determines the timing,” Jim Manley, a former senior aide to Reid, said. “You move in hours or 24 hours if you really hustle.”
For example, Obama signed a five-year highway bill into law (Pub. L. No. 114–94) Dec. 4 less than one day after it cleared both chambers and plans to sign broad educational reform legislation (S. 1177) on Dec. 10 after the bill cleared Congress the day before.
“They [Republicans] might want to hold it until the new year to gain more attention,” one current Democratic aide told Bloomberg BNA of the climate resolutions. “This is something that could take just a few hours, though.”
House Paris Trip Cancelled
Meanwhile, a group of Republican and Democratic House members will no longer travel to the international climate change negotiations in Paris later this week due to slow progress on funding the government, aides from both parties told Bloomberg BNA Dec. 9.
Rep. Ed Whitfield (R-Ky.) and House Minority Leader Nancy Pelosi (D-Calif.) were to have been the lead members of their parties on the trip to the final week of negotiations at the 21st Conference of the Parties to the U.N. Framework Convention on Climate Change, but House Majority Leader Kevin McCarthy (R-Calif.) said Dec. 8 the chamber would likely be working through the weekend.
Democrats had planned to tell negotiators they would defend against attacks on Obama's efforts to address climate change, while Republicans intended to tell those gathered that significant portions of the country opposed the president's efforts (232 DEN A-4, 12/3/15).
That means a group of 10 Senate Democrats will be the only group of legislators to attend the climate talks. Sen. Ben Cardin (D-Md.) told Bloomberg BNA Dec. 8 that the senators were “extremely effective” during their visit at reassuring negotiators that Obama's efforts on climate change would be protected.
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Grijalva Urges White House Effort on Environmental Riders
Dec 10, 2015 | BNA Daily Environment Report
By Rachel Leven
The Obama administration should be doing more to keep environmental riders, including one related to the stream protection rule, out of the upcoming omnibus bill, a senior House Democrat told Bloomberg BNA Dec. 9.
“We should be getting more indications from the White House as to their opposition to some of these things,” Rep. Raul Grijalva (D-Ariz.), ranking member of the House Natural Resources Committee, said. “Right now, unfortunately, to be blunt, I don't hear the level of concern that I'd like to hear … coming out of our caucus and out of the White House.”
The stream protection rule, which has come under fire by mining companies such as Murray Energy Corp., is one of several environmental rules that could be included in a rider to limit future action. The White House has said it is opposed to including any riders; however, Democrats have acknowledged there may be some (233 DEN A-1, 12/4/15).
Inclusion of a rider on the stream protection rule (RIN 1029-AC63), which is expected to be finalized in August, would be controversial. The rule aims to protect streams by limiting the mining through—and placement of waste in—streams and limiting the generation of total mining waste (209 DEN A-14, 10/29/15).
It is “very important to the administration” that the rule be completed to make sure acid mine drainage and other issues associated with coal mining are addressed, Interior Secretary Sally Jewell told reporters Dec. 9. Many Democrats, such as Grijalva, agree.
Meanwhile, Julia Slingsby, a spokeswoman for the majority on the House Natural Resources Committee, told Bloomberg BNA in an e-mail that blocking the stream protection rule that “has cut states out of the process and threatens the livelihoods of many coal workers across the country” is “a priority” in the omnibus for the committee's Republican members.
Continuing Resolution Moving
Also Dec. 9, House and Senate Republicans said they plan to move a five-day continuing resolution to prevent any government shutdown and buy them more time to hammer out a deal with Democrats and the White House over the year-end omnibus spending package.
House Republicans said the new CR running to Dec. 16 will prevent any funding lapse when a current stopgap expires Dec. 11 at midnight and allow negotiations over the omnibus to continue. The House is expected to take up the measure (H.J. Res. 75) Dec. 11 and send the bill to the Senate.
House Appropriations Committee Chairman Hal Rogers (R-Ky.) said the CR is necessary because negotiators have made little progress in resolving their disputes over the policy riders that will be attached to the must-pass spending package and are not even close to filing the omnibus.
‘Not Negotiating on Riders.'
When asked how preventing a rider on the stream protection rule stacks up compared to other riders in the mix such as one on the Environmental Protection Agency's Waters of the U.S. rule, Jewell gave a blanket response.
“We're not negotiating on riders,” Jewell said. “There are a whole lot of them. I don't even know how many at this point, but we do not support the riders, and the stream protection rule is one of those.”
However, Grijalva said the White House and others need to make their voices heard now—while the omnibus bill is being negotiated—because after that it will be much harder to change.
“Once the president's in the Catch-22 of having to sign something that's been negotiated, what happens then is that—quite frankly—it's harder to undo that in a must-pass bill. More importantly, undoing that in the next administration becomes very difficult,” Grijalva said. “Undoing is much more difficult than stopping.”
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GOP Senators Take Aim At Potential Climate Deal
Dec 9, 2015 | PoliticoPro
By Devin Henry
Senior Senate Republicans continued Wednesday to cast doubt on the effectiveness of a potential climate deal in Paris while calling again for a round of congressional votes on the agreement.
Sen. Jim Inhofe (R-Okla.), the chairman of the Environment and Public Works Committee and a chief critic of President Obama’s climate agenda, warned that, if negotiators craft a deal that won't require U.S. Senate ratification, it will make for an ineffective climate accord. Inhofe — who, in a floor speech, frequently referred to the two-week climate conference in Paris as a “party” — said Congress has already had its say against Obama’s climate rules for power plants, and that lawmakers may do the same under a Republican presidential administration down the road.
“Nothing is happening over there now,” he said.
“They’re having a good time, and I’m sure they’re having enough to eat and enough to drink, but that party will be over. … Enjoy your party over there, nothing is going to happen, nothing binding is going to take place on this issue.”
Officials hope to finalize an international deal on climate change by the weekend, with the goal of reducing carbon emissions around the world. Negotiators intend to craft a deal that is not legally-binding so the Senate — with its Republican majority — won’t take a vote on the matter.
Republicans also took issue with Secretary of State John Kerry’s Wednesday pledge to double the amount of funding the U.S. provides to help developing countries deal with climate change. The U.S. currently spends about $400 million annually on the grants.
Sen. John Barrasso (R-Wyo.), who has pledged to block Obama funding requests for another international climate grant program, slammed that plan.
“[Obama] seems to want to promise any policy, pledge any amount of money to get” a deal, Barrasso said in a floor speech.
“The American people oppose sending their money to a United Nations climate slush fund. As their elected representatives, Congress must not allow the president to continue to try to buy popularity for himself using Americans’ tax dollars. Congress must not allow the president to use this meeting in Paris to advance his own legacy at the expense of the American people and the American economy.”
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5 Climate Summit Takeaways As Deadline Nears
Dec 9, 2015 | PoliticoPro
By Andrew Restuccia, Sara Stefanini and Kalina Oroschakoff
A climate deal is close but it’s not there yet, as negotiators worked through the night Wednesday on a draft that shows the outlines of a possible agreement but still leaves large areas of disagreement only two days before talks are scheduled to end.
The wear and tear deep into the second week of climate negotiations is beginning to show. The Internet is getting slower, the coffee machines are giving up the ghost, and the food lines are getting longer.
Thousands of bleary-eyed journalists and activists wander around a massive conference center in this suburb north of Paris for the 10th straight day, and negotiators from nearly 200 nations are holed up in private conference rooms poring over the draft’s technical details.
The French hosts of the negotiations have set a Friday night deadline to finalize the agreement. So far, negotiations seem to be on track, although the seemingly endless stream of speeches at Wednesday night’s gathering of negotiators underlined that there are still deep differences. If past climate talks are any indication, diplomats should brace themselves for several more days of near-constant haggling before a deal is reached.
Here’s POLITICO’s list of things to watch out for as the negotiations approach the finish line:
1. "Nothing is agreed until everything is agreed." — Laurent Fabius, COP21 president
A Paris deal appears visible on the horizon … but there’s still a lot of work to do.
The problem is that the latest draft lays out the deepest fault lines in the negotiations, and they tend to be over issues that cut across the entire package. But on the positive side, a lot of the smaller issues have been dealt with.
Until now, some of the biggest players — India and China but also the European Union and others on the developed side — have largely kept their cards close to their chests. In the final hours, they are gradually starting to take steps towards what people here like to call “the landing zone,” or the conditions for an agreement that doesn’t end in a nasty crash.
“The issues that are so near and dear are the issues that will be dealt with tonight and tomorrow,” Jennifer Morgan, director of the climate program at the NGO World Resources Institute, told reporters soon after the draft text was published. “We’re still very much in flux.”
Among the most contentious issues is the question of how to differentiate between developed and developing countries throughout the deal, and assign responsibility for the expensive work of dealing with climate change. The wealthy side tried to introduce the phrase “in a position to do so,” meaning that emerging economies able to provide financial aid or other types of support can do so. Developing countries have pushed back.
Another issue is the agreement’s level of ambition, whether it should set a goal of keeping global warming below 1.5 degrees Celsius, rather than 2 degrees. Small island countries have mounted a strong campaign over the past 10 days to scale it up, but some industrializing countries have expressed concern.
There’s also debate over how financial aid will be provided, particularly after the developed world meets its pledge to help mobilize $100 billion per year by 2020.
Positions are already starting to shift, at least behind closed doors, said Liz Gallagher, the climate diplomacy leader at the environmental analysis group E3G.
“There aren’t any obvious villains at the moment,” she said, pointing to the U.S.’s commitment on Wednesday to double its finance for helping countries adapt to climate change to $860 million by 2020, and the European Union’s flurry of financial pledges over the past 10 days. “That’s starting to lubricate the talks.”
Still, the differences were visible at the plenary on Wednesday night. Some of the most vulnerable countries stressed that they will not shake on a deal that does not shoot for a less-than-1.5-degree goal, as well as laying out a plan for addressing the loss and damage countries have already suffered from climate change.
“Nobody is going to take them out now without a war,” Tuvalu Prime Minister Enele Sopoaga told reporters.
India’s Environment Minister Prakash Javadekar said he would like a lofty goal too, but that it would be unachievable. “To achieve 1.5 degrees would require developed countries to massively reduce their emissions and massively scale up their climate finance. That is not happening.”
2. Alliances are shifting
It’s all about showing strength in numbers now.
This week saw the emergence of an informal “high ambition coalition,” made up of the EU and its 28 countries, the U.S., 79 African, Pacific and Caribbean countries, and some Latin American countries, like Mexico and Colombia. It’s significant because it cuts across nearly every country group in the talks.
“We will not accept an agreement that takes in the lowest common denominator,” Pablo Abba Vieira Samper, deputy environment minister of Colombia, said on Wednesday.
But while the coalition broadly agrees that it wants as ambitious and binding a deal as possible, it remains to be seen how it handles tricky issues like climate finance and burden sharing.
The aim of building a coalition between developed and “progressive” developing countries is also to break the ranks of the Like Minded Developing Country group, a bloc that includes fossil-fuel giant Saudi Arabia and others who are holding fast against attempts by the EU, U.S. and other developed countries to soften the lines differentiating their responsibilities.
As new alliances are born, existing ones — the G77 and China, as well as Brazil, South Africa, India and China (BASIC) — are starting to fray over divisive issues. Some in the G77, like low-lying islands, say their future depends on a 1.5-degree goal, while bigger countries, like Indonesia, Saudi Arabia and Malaysia, are resistant.
The differences between the BASICs started to show during a press conference on Tuesday, with India taking a much harder line than Brazil and South Africa on the developed world’s need to pay in finance and technology.
3. Don’t mess with the U.N. convention
Despite the new category-busting alliances, for some the long-standing concept of differentiation isn’t up for discussion.
The global effort to fight climate change has traditionally been divided along a clear line that the United Nations drew in 1992: the Annex 1 list of wealthy countries, and everybody else. The problem is that the ‘everybody else’ group now includes powerhouses like China, Brazil, South Korea and Singapore.
The EU, U.S. and other developed countries want a more nuanced definition. The G77 and China remain staunchly united against that push, at least publicly. They want to preserve the U.N. Framework Convention on Climate Change’s principle of ‘common but differentiated responsibility,’ known in U.N. lingo as CBDR.
“CBDR is a bedrock of the convention. We’re here not to disembowel the convention but to enhance the convention,” the Malaysian delegate said on Wednesday.
4. The French get rave reviews — but will it last?
It’s a venerable tradition at climate change negotiations: when things don’t go your way, blame the host country. But this time around, the French have won near-universal praise — and it’s not just because of their world-class cuisine.
Fabius, France’s foreign minister and a veteran diplomat, has learned the lessons of past climate summits. He has created a more transparent process complete with regular public and closed-door meetings in order to build trust among delegates. Fabius himself has held regular meetings with key negotiators and he’s given countries that could throw a wrench into the final deal leading roles in the negotiations.
“The way he’s run this process has inspired trust. He’s been open, he’s been transparent. He’s said what he’s going to do and then he’s done it,” said Alden Meyer, the director of strategy and policy for the Union of Concerned Scientists. “He’s built personal trust and credibility as somebody who sticks to his word.”
Even some of the negotiators who have raised strong objections to the way past climate negotiations have been run offered kind words. “I’ve never seen so much serenity and so many smiles,” Claudia Salerno, the Venezuelan climate envoy, said earlier this week.
But it’s unclear if the good will can last, especially as the negotiations intensify and countries continue to air their grievances about the draft text.
5. The exhaustion factor
Top negotiators have been working through the night for the last several days, prodded by French leaders who insist on concluding on Friday night.
Summit organizers are trying to make the nights less brutal for negotiators. They’ve set up relaxation rooms with comfortable couches around the conference center — and some negotiators even have nooks for sleeping.
But the days will only get longer from here on out and tiredness could be one of many wildcards as the debate drags on — especially if the talks blow past the Friday deadline. Exhaustion can shorten tempers and increase the likelihood of inter-country fighting.
Fabius hopes negotiators can produce a new draft by Thursday afternoon that resolves many of the most divisive issues. But if they can’t agree to a nearly complete draft by then, the talks will likely go well into the weekend because the final deal must be translated into six languages and reviewed by lawyers before it can be approved.
“We have a lot of work ahead of us over the next 48 hours — if we’re lucky, that’s all that it will take,” said Jake Schmidt, director of the international program at the Natural Resources Defense Council.
Exhaustion already seems to be taking its toll. Salerno acknowledged that she accidentally forgot to include a section on intergenerational equity in the draft text that was made public Wednesday afternoon.
“It was a human error,” Salerno told her fellow negotiators. “It was due to fatigue.”
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U.S. Joins Coalition Pressing For 'Ambitious Agreement'
Dec 9, 2015 | E&E News PM
By Lisa Friedman
The United States has joined more than 100 rich and poor countries calling themselves the "high ambition coalition" that declared tonight they will not accept a "minimalist" climate change agreement.
Led by the Marshall Islands, the European Union, a group of progressive Latin American countries and the world's least-developed nations, the coalition called for language in the burgeoning accord to keep global temperatures from rising more than 1.5 degrees Celsius.
Other goals include seeing emissions targets reviewed and elevated every five years, a strong long-term goal outlining how the world is expected to decarbonize, all countries submitting to transparency measures and a "strong package of support" for developing countries to tackle climate change.
Paris Climate Talks provides in-depth coverage of the 21st U.N. summit to forge a new global agreement to reduce carbon dioxide emissions. Visit the special report.
"There are some countries who are in the coalition and indeed seek a more minimal outcome," U.S. lead negotiator Todd Stern said. "This is our moment, and we need to make it count."
The coalition comes as a new draft text is being considered by 195 nations gathered here to craft a global accord. Coalition members said they were pleased by the progress but concerned the text divides the world into rich and poor nations as divvied up by the United Nations in 1992.
Much of the aim of this group is to tear down those walls and create a new system in which countries take on responsibilities based on their wealth, emissions and capacity -- not on 20-year-old categories.
"This is not a negotiating group. It is rather about joining the voices of all those who are committed to an ambitious agreement and a safe climate future," Marshall Islands Foreign Minister Tony de Brum said. He said the group comprises "big and small, rich and poor" countries.
"We will not accept a minimal or bare-bones package," he said.
The coalition already appears to be creating consternation among countries that are not part of it. Tuvalu negotiator Ian Fry and Seychelles Ambassador Ronny Jumeau, for example, said they aren't clear what the coalition is. A negotiator from the Maldives declined to comment on the group.
"I don't know what to think of them. I'm suspicious. Who are they? Who chose them? How did it happen?" Jumeau said.
He added, "High ambitious with the U.S.? I'm worried."
Chinese lead negotiator Su Wei shrugged off news of the group's announcement. "Everybody wants to be ambitious," he said. "People want to be ambitious but also realistic. Maybe too much ambition will lead to empty things. It needs to be ambitious and achievable."
Secretary of State John Kerry alluded to the group's formation in his speech here earlier in the day, saying, "This is a group of countries that is fully committed to ensuring that the agreement is a truly ambitious one.
"Addressing climate change will require a fundamental change in the way that we decide to power our planet. And our aim can be nothing less than a steady transformation of a global economy," he said.
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