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PM ACC 12/22/2015
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(ACC Blog) It May be the End of 2015, But American Chemistry is Just Getting Started
Dec 22, 2015 | American Chemistry Matters
By Dr. Thomas Kevin Swift
As we near the end of 2015, it’s worth taking a look back at how far our industry has come the past few years, and where we think American Chemistry will be in the years to come. -
Senate TSCA Bill Meets All EPA's Reform Principles, Says Udall
Dec 22, 2015 | Chemical Watch
By Dinesh Kumar
The bill passed by the US Senate last week to update the Toxic Substances Control Act (TSCA) meets all six of the “essential principles” (CW 30 September 2009) laid out by the Obama administration in 2009 for TSCA reform, according to Senator Tom Udall... -
Links to Essential Reading on Senate and House TSCA Reform Legislation
Dec 22, 2015 | Environmental Defense Fund
By Richard Denison
On December 17, 2015, the full Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697, the Lautenberg Act), which would amend the nearly 40-year-old Toxic Substances Control Act (TSCA). -
To Save Lives, Push MTA to Make Safety Deadline
Dec 22, 2015 | Newsday
By Christopher Hart
During this holiday season, millions of Americans will ride on passenger railroads to be with family and friends. It’s certainly a very safe way to make the trip. But if all had gone as planned, travel by rail could have been even safer. -
Lawyers Bicker Over Ground Rules as Legal Brawl Begins
Dec 22, 2015 | E&E - Greenwire
By Robin Bravender
The legal battle over the Obama administration's Clean Power Plan is so contentious that lawyers are fighting about the ground rules for arguing the case in court. -
Federal Challenges, Local Control Dominate Year in Litigation
Dec 22, 2015 | E&E - Energywire
By Ellen M. Gilmer
In the scrappy world of oil and gas law, 2015 was a year characterized by marquee legal battles, deadlocked debates and new conflicts that will seep into courtrooms in coming years. -
Coalition of Cities Wants to Defend EPA Carbon Rule
Dec 22, 2015 | PoliticoPro - Energy
By Alex Guillen
The U.S. Conference of Mayors, the National League of Cities and a number of major cities have asked to get involved in defending EPA’s Clean Power Plan because they “stand on the front line of efforts to deal with climate change.” -
Wyo. Warns Climate Rule Imperils Sage Grouse Conservation
Dec 22, 2015 | E&E - Greenwire
By Robin Bravender and Phil Taylor
Wyoming is challenging the Obama administration's signature climate change rule on the grounds that it'll hamper efforts to protect the greater sage grouse. -
N.D. Utilities, Regulators Raise Heck on EPA Climate Rule
Dec 22, 2015 | E&E - Climatewire
By Elizabeth Harball
Key utilities and regulators in North Dakota are arguing desperate times may call for desperate measures as the state figures out how to comply with the Obama administration's Clean Power Plan. -
Brownstein Hyatt Farber Schreck's Gore Talks Omnibus Winners and Losers
Dec 22, 2015 | E&E TV
Last week, President Obama signed into law the fiscal 2016 Omnibus Appropriations Act, which lifts the ban on crude oil exports and extends wind and solar energy tax credits for five years, among several other energy measures. -
'Systems Approach' Leads to More FracFocus Disclosure; Much Data Still Secret
Dec 22, 2015 | E&E - Energywire
By Mike Soraghan
The use of a "systems approach" has led to more public disclosure of hydraulic fracturing chemicals, a new Harvard University study found, but overall companies are keeping more information secret. -
Will State Count Massive L.A. Methane Leak When it Totals Hoped-for GHG Cuts?
Dec 22, 2015 | E&E - Climatewire
By Anne C. Mulkern
Multiple investigations are underway into the natural gas leak in Los Angeles County that has forced evacuations and school closures and could mean steep fines for the utility involved. -
DOJ Fights Bid For Court To Weigh Corps' Criticisms In CWA Rule Lawsuit
Dec 22, 2015 | InsideEPA
By Bridget DiCosmo
Department of Justice (DOJ) attorneys are urging a federal district court to reject states' call to include Army Corps of Engineers officials' criticisms of the draft EPA-Corps Clean Water Act (CWA) jurisdiction rule as part of the record in the states' suit over the rule... -
Proposal Would Change Emission-Reporting Requirements
Dec 22, 2015 | E&E - Greenwire
By Amanda Reilly
U.S. EPA is proposing changes to its program requiring that large sources of greenhouse gases report emissions on a yearly basis.
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(ACC Blog) It May be the End of 2015, But American Chemistry is Just Getting Started
Dec 22, 2015 | American Chemistry Matters
By Dr. Thomas Kevin Swift
As we near the end of 2015, it’s worth taking a look back at how far our industry has come the past few years, and where we think American Chemistry will be in the years to come.
There’s no doubt that this is a transformative time for the U.S. chemical industry. Access to vast new supplies of American natural gas from shale deposits is one of the most exciting domestic energy developments in decades, particularly for the business of chemistry. The revolution in shale gas has fostered renewed competitiveness for U.S. basic chemicals, and positively impacted specialty chemical markets as well. In fact, chemical production grew this year by 3.6%, and we anticipate that growth will continue, rising nearly 3% in 2016 and surging through 2020.
Increased production means increased jobs, and for the third year in a row, chemical industry employment grew in 2015, with continued steady job gains expected through 2020, especially as new capacity from 261 new, announced projects and over $158 billion of investment comes online. And, because employees of the business of chemistry make 47% higher wages than the average manufacturing pay, growing payrolls will continue to strengthen local economies.
It hasn’t always been smooth sailing – depreciation of the dollar, weakness in global markets, and a challenging first quarter in 2015 provided potential obstacles to the growth of the chemical industry this year. But despite these challenges, U.S. chemistry outpaced manufacturing gains in 2015.
In the overall economy, growth in consumer spending has accelerated, and the job market has started to firm, in part due to the economic contributions of our growing industry. Our industry’s commitment to the creation of ground-breaking products that make our lives and world healthier and safer means that our companies’ investment in innovation is continuing to grow, with more than $60 billion dollars invested in 2015.
So, what does all this mean? Put simply, as we enter 2016, the business of chemistry is flourishing, and with momentum building, our industry will continue to grow for the next several years, outpacing the growth of the overall U.S. economy.
For more information on the business of chemistry, check out ACC’s recent report, the “Year-End 2015 Chemical Industry Situation and Outlook”, prepared annually by ACC’s Economics and Statistics Department. The Year-End report is our annual review of the U.S. and global business of chemistry, offering global and domestic chemical industry data related to production, trade, shipments, capacity utilization, R&D spending, capital spending, employment and wages.
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Senate TSCA Bill Meets All EPA's Reform Principles, Says Udall
Dec 22, 2015 | Chemical Watch
By Dinesh Kumar
The bill passed by the US Senate last week to update the Toxic Substances Control Act (TSCA) meets all six of the “essential principles” (CW 30 September 2009) laid out by the Obama administration in 2009 for TSCA reform, according to Senator Tom Udall (D-New Mexico), co-author of the measure.
The Senate passed the The Frank R Lautenberg Chemical Safety for the 21st Century Act (S 697) by a unanimous voice vote on 17 December.
In a floor speech the following day explaining how the bill aligned with the principles set forth by the administration, Mr Udall said it requires the EPA to assess chemicals based solely on health and safety information and not on cost: “That was a significant change we made.”
It gives the agency “new authorities to developing testing data and requires the finding of safety before new chemicals enter the market,” he said. So unlike the current procedure, a finding of safety should be made before a substance enters the marketplace, he added.
Mr Udall said that, as called for by the administration, the bill – crafted with Senator David Vitter (R-Louisiana) – explicitly requires the protection of vulnerable populations such as:infants;the elderly;pregnant women; andworkers.
As also demanded by the administration, S 697 requires the EPA to “systematically review all the chemicals in commerce, prioritising the chemicals of most concern first”. And it sets enforceable deadlines for agency action, he said.
As for the administration's emphasis on encouraging green chemistry, Mr Udall said the measure includes a section on sustainable chemistry.
It also makes more information about chemicals available by “limiting industry's ability to claim information as confidential.” And it gives states and health professionals access to confidential business information.,
Finally, he said, the bill assures the EPA of a sustained source of funding and ensures that the agency's priorities are “not overwhelmed by private interests to ensure that the programme we implement is a risk-based system.”
It allows the EPA to develop cost-effective final regulations, but without the “high procedural hurdles in the underlying statute.” It also strikes “an appropriate balance” between federal and state actions,” giving states the right to co-enforce federal standards.
Mr Udall said: “Now we are close to the finish line to fix this broken system for the first time in almost 40 years.”
The Obama administration has not taken a position on the Senate bill or the House passed version of TSCA reform (CW 24 June 2015).
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Links to Essential Reading on Senate and House TSCA Reform Legislation
Dec 22, 2015 | Environmental Defense Fund
By Richard Denison
Richard Denison, Ph.D., is a Lead Senior Scientist.
On December 17, 2015, the full Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697, the Lautenberg Act), which would amend the nearly 40-year-old Toxic Substances Control Act (TSCA).
The House of Representatives already passed its TSCA reform bill in June, the TSCA Modernization Act of 2015,H.R. 2576.
Next up in the New Year will be efforts to reconcile these two bills. In anticipation of this, I am posting here updated analyses of the two bills that examine how and to what extent they would address key flaws in TSCA. These analyses include:brief and detailed side-by-sides of TSCA and the two bills,a comparison of how the bills deal with the contentious issue of preemption of state authority,a comparison of how well the bills meet the Administration’s principles for TSCA reform, andan earlier blog post on the importance of understanding which chemicals are in use today.
All of these materials (including this post) are available at blogs.edf.org/health.
ANALYSES:
· How would Senate and House TSCA reform legislation address key flaws in TSCA? Update of our 5-part series on less talked-about but critically important elements of TSCA reform:
· Enhancing testing authority
· EPA review of new chemicals
· How chemicals are selected for safety evaluations
· Confidential business information
· Consideration of costs and other non-risk factors
· Comparing the Senate and House TSCA reform legislation: A side-by-side
· And now the gory details: A deep-dive comparison of the Senate and House TSCA reform legislation
· Understanding preemption in the Lautenberg Act
· A mixed bag: Comparing the preemption provisions of the Senate and House TSCA reform bills
· How the Senate and House TSCA reform bills stack up against the Administration’s Principles for TSCA Reform
· We don’t know how many chemicals are in use today. We should know.
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To Save Lives, Push MTA to Make Safety Deadline
Dec 22, 2015 | Newsday
By Christopher Hart
During this holiday season, millions of Americans will ride on passenger railroads to be with family and friends. It’s certainly a very safe way to make the trip. But if all had gone as planned, travel by rail could have been even safer.
That’s because a technology called positive train control (PTC) can detect imminent collisions and trains moving at excessive speeds. Humans can make errors, even on their best days, and PTC provides an extra safety net that slows or stops trains when their operators do not. The National Transportation Safety Board (NTSB) has been urging that railroads explore and implement such technology for more than 45 years.Most PopularEditorial: Bring on the feds in SuffolkEditorial: How Nassau GOP takes care of a palLetter: Bellone accountable for Burke promotionYoung: The birth of an Islamic reformation?Opinion: You think our courts are bad? Read this
In 2008, Congress enacted a law that required PTC to be implemented nationwide by Dec. 31, 2015. The law came after a deadly, PTC-preventable head-on collision between a commuter train and a freight train in Chatsworth, Calif. The collision killed 25 people and injured more than 100.
In the more than seven years since the law passed, the NTSB has investigated PTC-preventable accidents that resulted in more loss of life, serious injuries, and significant property damages. Among them:
The June 24, 2012, head-on collision between two Union Pacific freight trains near Goodwell, Okla., which killed three crew members and injured a fourth.
The Dec. 1, 2013, Metro-North commuter train derailment in the Bronx, which killed four and injured dozens of others; the train was traveling more than 82 m.p.h. on a curve with a maximum authorized speed of 30 mph.
The May 12 accident in which an Amtrak Northeast Regional train derailed in Philadelphia, traveling at 106 m.p.h. around a curve with a speed limitation of 50 mph. Eight passengers were killed and more than 200 others were injured.
Although the 2015 deadline would come too late for those who lost their lives or suffered serious injuries in these accidents, at least the law would have enabled us to depend on this life-saving technology coming online by the end of this year.
There have been legitimate hurdles along the way to implementation of PTC, and the railroads that have done the hard work to overcome these obstacles deserve our thanks. They have made railroad transportation safer. But most trains on most tracks remain unprotected by PTC.
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Simply put, railroads have not done what is needed to comply with the 2008 law. Instead, as the deadline approached, railroads threatened to discontinue service if the law were not changed. A seven-year implementation period had culminated in an ultimatum, a stark choice of safety or service. Congress relented, and extended the deadline to 2018 - with the possibility of future extensions through 2020.
So this holiday season, the public will continue to have access to service, but not the level of safety demanded by the 2008 law. The railroads will continue to run, but without full implementation of this life-saving technology.
This year, “Implement Positive Train Control in 2015” is on the NTSB’s most wanted list of transportation safety improvements. We included the date to emphasize the deadline in the law. As we pointed out in January, each death, each injury and each accident that PTC could have prevented testifies to the vital importance of implementing this technology now.
Federal Railroad Administrator (FRA) Sarah Feinberg took a courageous stand on enforcing the 2015 deadline. Now that Congress has changed the law, Feinberg has urged the railroads not to count on another extension - even though the law allows them to be granted by the Department of Transportation. So what’s to prevent railroads from issuing another safety-or-service ultimatum in 2018?
One tool can be found in recommendations the NTSB issued in 2013. At that time we asked that the railroads provide PTC update reports to the FRA every six months until all the trains and tracks covered by the law are protected. Additionally, we recommended that the FRA publish the reports on its website within 30 days of receipt.
This information would enable the public to track the progress of railroads toward meeting the deadline, and policymakers could weigh the implications and take appropriate action.
We still think semi-annual reporting is a good idea, and we urge Feinberg to consider it anew. To avoid ever facing another safety-or-service ultimatum, the FRA and the public must know what progress the railroads are making.
As Feinberg recently told the RailTrends conference, “When we talk about PTC, we are really talking about saving lives.”
It is time for the conscientious stewards of safety throughout the railroad industry to make every day count, from now until the day that PTC is implemented nationwide. We hope that Feinberg will continue to stand firm, and demand that the public be kept frequently informed of the railroads’ progress toward the new 2018 PTC deadline.
Christopher Hart is chairman of the National Transportation Safety Board.
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Lawyers Bicker Over Ground Rules as Legal Brawl Begins
Dec 22, 2015 | E&E - Greenwire
By Robin Bravender
The legal battle over the Obama administration's Clean Power Plan is so contentious that lawyers are fighting about the ground rules for arguing the case in court.
The multitude of states, industries and other groups challenging U.S. EPA's climate rule for power plants asked the U.S. Court of Appeals for the District of Columbia Circuit earlier this month to set a schedule aimed at expediting briefing and arguments on issues they see as central to the case and postponing arguments on other issues. Such a format, they argued, would allow federal judges to hear arguments on the rule's "fundamental legal issues" in the spring of 2016, rather than next fall.
But EPA and its allies cried foul yesterday in their responses to the court.
EPA told the D.C. Circuit judges that their opponents' suggestion would be "counterproductive, unworkable, and prejudicial."
The administration's attorneys argued that the court can't make a "sound determination" about how to set a briefing schedule in the lawsuit before they have resolved pending requests to halt the rule while the litigation plays out. EPA's challengers have asked the court to block the rule, arguing that they'll be harmed if the climate regulation goes forward. The court is expected to decide whether to grant the stay request early next year.
And regardless of the court's decision on a stay, EPA maintained, dividing the legal arguments into two separate rounds is "inefficient, impractical, and unwarranted."
The agency said that format "could substantially delay ultimate resolution (and thus the certainty petitioners claim they are seeking) by requiring two potentially duplicative rounds of briefing and multiple oral arguments in proceedings involving challenges to the same agency rule. It would introduce confusion about which of the overlapping issues are actually before the court during each round of briefing. And it would unduly constrict respondents' ability to effectively brief the issues."
States, environmentalists, utilities and other groups supporting EPA in the lawsuit submitted separate proposals warning the court not to break up briefing in the case.
EPA's challengers -- including 27 states and a host of major industry groups -- urged the judges to first tackle whether the agency had the authority to issue the rule in the first place. "All of the petitioners raise fundamental issues regarding EPA's authority under the [Clean Air Act] to issue the rule at all or to issue this rule," they wrote.
Beyond those "fundamental issues of legal authority and validity, and assuming EPA has authority to issue a rule like this, petitioners raise record-based and fact-bound issues regarding the rule's treatment of specific sources and specific states," the challengers told the court. "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 groups challenging the rule laid out their legal attack strategies in documents sent to the court last week (Greenwire, Dec. 21).Cities ask to weigh in
Today is the deadline for those looking to attack or defend the Clean Power Plan to file their petitions with the D.C. Circuit.
A coalition of cities and mayors asked the court today to participate as amici curiae, or friends of the court, in support of EPA. Additional petitions may be filed later today.
The petition was filed by the National League of Cities; the U.S. Conference of Mayors; Boulder County, Colo.; and the cities of Baltimore; Coral Gables, Fla.; Grand Rapids, Mich.; Houston; Jersey City, N.J.; Los Angeles; Minneapolis; Pinecrest, Fla.; Portland; Providence, R.I.; Salt Lake City; San Francisco; and West Palm Beach, Fla.
The coalition wants to participate in the lawsuit to "support their common view that the Clean Power Plan is a valid exercise of EPA's authority," it wrote to the court.
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Federal Challenges, Local Control Dominate Year in Litigation
Dec 22, 2015 | E&E - Energywire
By Ellen M. Gilmer
In the scrappy world of oil and gas law, 2015 was a year characterized by marquee legal battles, deadlocked debates and new conflicts that will seep into courtrooms in coming years.
Federal challenges, vulnerabilities from the oil price bust and disputes over regulatory authority plastered the dockets for industry lawyers and their environmental counterparts this year. As usual, each side notched significant legal victories to advance its causes, but major questions are still pending in the courts.
"I personally think that 2015 was really a monumental year for both litigation and regulatory action," said Arnold & Porter attorney Matthew Douglas, who has been tracking lawsuits across the country. "There was so much that happened."
Chief among the big developments was the government's new rule for hydraulic fracturing on public and tribal lands. The rule came after years of drafting and negotiating with industry and environmentalists but was immediately challenged by multiple industry groups and states upon its release in March.
Another area steeped in litigation is the long-running debate over "local control" of development. While New Mexico and Ohio courts handed down decisions on the issue this year, the major battleground of Colorado is still at play.
Other technical areas of oil and gas law -- earthquake liability, workforce litigation -- have also been contentious throughout the year and promise more legal wrangling to come.
"The amount of litigation is increasing, and the number of reported cases is staying at a very high level," said oil and gas legal scholar Bruce Kramer. But, he said, the industry still faces legal uncertainty on many issues.Fracking rule showdown
After a 2014 filled with local-level litigation challenging various aspects of oil and gas development, this year was notable for the slew of industry and environmental challenges at the federal level.
Most high profile, of course, has been the industry-led challenge to the Obama administration's new fracking rule. The Independent Petroleum Association of America and Western Energy Alliance sued the Interior Department within minutes of the unveiling of the fracking rule in March. Western states, including Wyoming, Colorado, Utah and North Dakota, filed their own suit, and the Southern Ute and Ute Indian tribes were fast on their heels.
While the Southern Utes forged their own legal path and are now in settlement talks, the other plaintiffs are pushing their challenge together on two different fronts: the U.S. District Court for the District of Wyoming and the 10th U.S. Circuit Court of Appeals.
The dispute is nowhere near resolution, as the opposing sides argue over specifics of the rule and over the very foundation of the Bureau of Land Management's mission: Does the agency have the authority to regulate fracking on public lands (EnergyWire, Oct. 1)?
"It's huge," Douglas said. "To find that they lacked authority and that the proposed rules lacked evidentiary support was a huge win for the industry."
Other federal regulations have also attracted industry challenges, and more are expected to be targeted in the coming year, including U.S. EPA's anticipated restrictions on methane emissions from oil and gas operations.
"Nobody is pleased with the federal government's position," Kramer said. "Certainly in the Intermountain West, even in the purple states, there is a very strong anti-federal approach."
And attorneys general in those states have made clear that they are ready to fight any federal environmental rules that may tread on state jurisdiction. In addition to the fracking rule, states in the West and elsewhere have lined up to bring legal challenges against EPA's Waters of the U.S. rule and the agency's landmark Clean Power Plan.Settlements and sacred land
Meanwhile, environmentalists have fared well on some of their own federal challenges. After the Environmental Integrity Project and other groups filed suit pushing EPA to include the oil and gas industry in disclosure requirements for toxic emissions, the agency announced this fall that it would propose new regulations to cover natural gas processing plants (EnergyWire, Oct. 28).
Groups are also negotiating with Interior over environmental analysis for offshore wells in the Pacific Ocean. After the Center for Biological Diversity and the California-based Environmental Defense Center separately sued Interior for allegedly "rubber-stamping" drilling applications without updated environmental review, the agency moved into settlement discussions with both groups (EnergyWire, Aug. 20).
Also on the federal front this year were two debates over oil and gas development in or near areas considered sacred by tribes.
In Montana, long-suspended drilling permits in a potentially sacred site near the Blackfeet Indian Reservation drew an industry lawsuit in 2013, which saw a flurry of activity this year. Interior signaled in November that it would cancel the contested lease.
The litigation is still active, and any lease cancellation is expected to be challenged by industry, but the agency's move was celebrated as a big win for environmentalists and tribal advocates who have been pushing to protect the area for decades.
Down in New Mexico, meanwhile, environmentalists and tribal advocates haven't been as successful. There, the sacred area at issue is Chaco Canyon and surrounding lands rich with ancient Pueblo artifacts and tribal ruins. Environmentalists sued BLM in March, pushing the agency to stop allowing fracking so close to sensitive areas. The judge denied the plaintiffs' request for a preliminary injunction, and leasing in the region has continued without interruption.State battles
The "local control" debate that dominated dockets in 2014 bled into the current year and isn't over yet.
A district court became the first federal jurisdiction to rule against local fracking bans in January, throwing out a ban in Mora County, N.M., as a violation of state law. The highest court in Ohio soon followed with its own decision, throwing out a de facto ban in an Akron suburb in February and rejecting another city's "community bill of rights" designed to block fracking in March.
Both decisions left wiggle room for local governments to enact less-stringent regulations that affect oil and gas development, but new litigation testing those limits has yet to arise.
"They resolved it in a way that will lead to more litigation because it's an ad hoc situation," Kramer said. "It depends on whether city attorneys or township attorneys decide to push the envelope."
In Texas, litigation over the city of Denton's fracking ban raised eyebrows at the state Legislature, which enacted a law prohibiting such bans. The law took effect in May, Denton retreated from its ban, and the lawsuits were dropped.
In Colorado, on the other hand, local governments have not been shy about pushing the limits. After multiple local bans were struck down in 2014, two cities are now facing off against industry and the state at the Colorado Supreme Court. Oral arguments were held earlier this month, and a decision from the court is expected in the new year.
"I think Colorado's been a battleground for the debate over local control of fracking," Earthjustice attorney Michael Freeman said. "The Supreme Court judgment in those two cases is going to have obviously a huge impact in Colorado, but it also may be something other states are looking at."
If the court sides with industry and Colorado regulators, further pushes for statewide ballot measures blocking fracking are likely. Freeman warned that there's no end in sight for litigation over drilling and fracking near residential areas.
"As long as you've got a state agency that's approving permits that lets companies drill in people's backyards and near elementary schools, you're going to get local residents angry who want to exercise some control over industrial development that happens in their town," he said.Earthquakes
Another area ripe for battle in the courtroom is induced seismicity from wastewater disposal wells.
"Litigation over increased seismic activity that has been tied to disposal wells has not really taken off yet, but there are signs that it might," Douglas said. "There was a lot of activity there in 2015 that is going to come to a head in 2016."
The case causing the most headaches for industry so far is a personal injury and property damage lawsuit in Oklahoma, where plaintiff Sandra Ladra sued New Dominion LLC and Spess Oil Co. for allegedly causing a magnitude-5.7 earthquake that caused her fireplace to collapse and injure her. Despite multiple industry attempts to get the case dismissed, it's still active in state court.
Ladra's lawyer is representing another Oklahoma resident, Jennifer Lin Cooper, in a purported class action that targets the same companies for the same earthquake.
But the most threatening litigation is on the horizon. The Sierra Club filed notice in late October that it planned to sue four oil and gas producers for violating the federal Resource Conservation and Recovery Act while operating disposal wells that have been linked to quakes (EnergyWire, Nov. 3). A lawsuit from the environmental group is expected in late January or early February.
Meanwhile, some states, including Oklahoma and Kansas, are working to update their wastewater disposal regulations to avoid earthquakes. According to Kramer, the new regulations and permits will open new doors to litigation from both industry and environmentalists.Price slump
Still, despite many avenues for litigation in the coming year, experts were quick to point out the impact the price slumps for both oil and natural gas would have on legal spending.
In some areas, oil and gas companies may be more vulnerable to litigation against them. Belt-tightening in the industry is expected to trigger related employment litigation.
"The longer that somebody's out of work, the more desperate they may become and the more likely it is that they'll go see a lawyer," Baker Donelson attorney Steve Griffith told EnergyWireearlier this year (EnergyWire, June 24).
But low commodity prices may also mean a slightly less litigious industry, with smaller companies in particular becoming reluctant to go to the courtroom to challenge government actions.
"In reality, [small companies] don't have the time to sit there and pay lawyers a lot of money to challenge everything," Kramer said. "Commodities prices have a big impact. If you're slashing capital expenditures, you're not going to increase attorneys' fees."
Freeman added that the decreased drilling may also lead to a detente in squabbles over development near residential areas.
"Assuming that companies still want to keep drilling in close proximity to residential neighborhoods, that's going to continue to be a long-term fight," he said. "But with oil at $35 a barrel, who knows if that will continue for the near term."
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Coalition of Cities Wants to Defend EPA Carbon Rule
Dec 22, 2015 | PoliticoPro - Energy
By Alex Guillen
The U.S. Conference of Mayors, the National League of Cities and a number of major cities have asked to get involved in defending EPA’s Clean Power Plan because they “stand on the front line of efforts to deal with climate change.”
EPA made the right call in considering "beyond the fenceline" strategies like boosting energy efficiency and renewables, "a transition that our cities and local governments are at the forefront of implementing," the city groups argue.
Most Americans live or work in cities represented by the two groups, they say, and several cities joining the brief, including Houston and Salt Lake City, are in states challenging the rule in court.
Joining the USCM and NLC are Baltimore; Houston; Los Angeles; Salt Lake City; San Francisco; Minneapolis; Coral Gables, Fla.; Grand Rapids, Mich.; Jersey City, N.J.; Pinecrest, Fla., Portland, Ore.; Providence, R.I.; West Palm Beach, Fla; and Boulder County, Colo.
Several cities, including New York, Chicago, Philadelphia and Washington, D.C., previously formally intervened alongside a number of states to defend the EPA regulation.
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Wyo. Warns Climate Rule Imperils Sage Grouse Conservation
Dec 22, 2015 | E&E - Greenwire
By Robin Bravender and Phil Taylor
Wyoming is challenging the Obama administration's signature climate change rule on the grounds that it'll hamper efforts to protect the greater sage grouse.
Attorneys representing the Cowboy State indicated last week that they're planning to air their concerns about how U.S. EPA's climate rules for power plants will impact sage grouse conservation as part of an ongoing lawsuit challenging the administration's Clean Power Plan. Wyoming is one of more than two dozen states opposing the regulation in a federal appeals court.
In the statement of issues filed by Wyoming and 23 other states with the D.C. Circuit Court of Appeals on Friday, the states indicated that the sage grouse will be central to their case. Among the issues they said they plan to raise: "Whether EPA unlawfully failed to consider the impact of the rule throughout Wyoming on the greater sage grouse and other sensitive species."
Wyoming officials have long been staunch critics of the administration's Clean Power Plan, and they're challenging the regulation on multiple fronts.
In addition to fighting the rule in court, top officials yesterday sent a petition to EPA Administrator Gina McCarthy asking her to scrap the rule and start over.
"This rulemaking has been flawed from the very beginning," Wyoming Gov. Matt Mead (R) said in a statement. "The final rule is the result of an unfair process -- it has both procedural and substantive deficiencies."
Mead said he directed state Attorney General Peter Michael, who is an appointee of the governor rather than an independently elected official, "to use every tool in the legal toolbox to stop this arbitrary and extremely harmful rule," including sending the petition to McCarthy.
Concerns about sage grouse conservation were listed as one of their top arguments against the rule in that petition.
"The EPA refused to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service before issuing the final rule," Michael wrote. "The final rule requires significant development of new renewable generation. It is no secret where new renewable generation can be located in any given state. For example, in Wyoming, significant amounts of wind and solar resources are unlikely to be developed because they are located in core sage grouse habitat, which also supports threatened and endangered species such as the Piping Plover and the Preble's Meadow Jumping Mouse."
Michael added, "The rule should be reopened so that the rule's effects on the nation's threatened and endangered species can be fairly considered."
Wyoming officials have been warning about conflicts between sage grouse conservation and the Clean Power Plan's directives since EPA issued its draft rule in 2014.
In comments submitted to McCarthy last December, Wyoming's Department of Environmental Quality Director Todd Parfitt warned that the state was getting "conflicting messages" from the Fish and Wildlife Service and EPA.
"FWS is telling Wyoming not to disturb large areas of land in order to guard against habitat fragmentation," he said. "EPA is telling Wyoming to develop as much wind energy as possible. Wind energy facilities are very large and disturb greater land areas than EGUs [electricity generating units], which have much smaller footprints. These two federal agencies are giving Wyoming directives that are directly at odds with each other."Wyo. seen as a model
Nationally, the final Clean Power Plan is expected to reduce carbon dioxide emissions from power plants 32 percent below 2005 levels by 2030. The rule also established a target emissions rate for each state.
The greater sage grouse lives in the state's sagebrush steppe, and Wyoming has "devoted significant resources toward developing a conservation plan for this species," Parfitt told EPA last year, with protection of its core habitat areas being one of the important safeguards.
The Obama administration in September found that the greater sage grouse -- the largest native grouse species in North America, which has been central to disputes between conservationists and energy developers -- was not in need of Endangered Species Act protections due to conservation efforts that stemmed its decline.
"The level of wind infrastructure development imagined by the Proposed Rule would negatively impact significant portions of the Greater Sage-Grouse's core habitat. This oversight is not limited to the Greater Sage-Grouse; EPA has also failed to consider the environmental impact to other species such as bald eagles and bats," Parfitt wrote, adding that EPA had failed to properly consider those impacts in the draft rule.
Parfitt also testified before the Senate Environment and Public Works Committee in March, where he told lawmakers that the agency had improperly assessed the amount of land available for renewable energy development because it failed to take designated critical habitats for the greater sage grouse and other species into account. "Only 16.5 percent of the total land area EPA identified for wind energy development is actually available," Parfitt told the committee.
That's due in large part to Wyoming's "core area" strategy to protect important sage grouse breeding grounds from energy development and other threats, a policy established by former Gov. Dave Freudenthal (D) in 2008 and affirmed by Mead in 2011.
It places about 15 million acres off limits to wind farms, according to Brian Rutledge of the National Audubon Society. Much of those areas also happen to be the state's windiest.
"Wind doesn't belong in what we want to call core habitat," he said.
FWS considers the Cowboy State a grouse "stronghold" because it is home to roughly 40 percent of the birds. FWS has extolled Wyoming's sage grouse plan as a model for Western states, citing its regulatory rigor, and might have listed grouse as threatened under the Endangered Species Act without it. The Bureau of Land Management codified Wyoming's strategy in its federal sage grouse conservation plans for Wyoming.
BLM in September imposed similarly strict sage grouse protections across 50 million acres of federal lands in the West to avoid a federal listing. Roughly 35 million acres were placed off limits to wind and solar development.
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N.D. Utilities, Regulators Raise Heck on EPA Climate Rule
Dec 22, 2015 | E&E - Climatewire
By Elizabeth Harball
Key utilities and regulators in North Dakota are arguing desperate times may call for desperate measures as the state figures out how to comply with the Obama administration's Clean Power Plan.
One of the least-populated and most fossil-fuel-intensive states, North Dakota was hit with one of the most stringent carbon emissions reduction requirements under U.S. EPA's new climate rule -- a 45 percent emissions rate reduction from 2012 levels by 2030.
The North Dakota Department of Health, the agency that would implement the rule, held a public comment period on the Clean Power Plan that ended Friday. In comments filed to the state agency, many of the state's major power companies set forth grave concerns on the cost of implementing the Clean Power Plan and also questioned the rule's legality.
Otter Tail Power Co. suggested that the North Dakota Department of Health implement a "cost safety valve" should the rule prove more expensive than the federal agency predicts.
"If EPA's projections are incorrect, States should be afforded the flexibility to adjust their state goals, to ensure costs are kept in line with EPA's justification for the rule," wrote Mark Thoma, environmental services manager for Otter Tail.
The North Dakota Public Service Commission wrote in its comments that the Clean Power Plan could undermine its authority, going so far as to suggest the commission be allowed to halt the rule.
"The PSC would oppose anything in the State Implementation Plan that infringes on our jurisdiction or obstructs our ability to fulfill our constitutional responsibilities," the Public Service Commission wrote, adding, "The DOH must allow the Commission to suspend implementation mandates if they are deemed imprudent.
"The Commission ensures that utility companies do not necessarily take the easiest path at the expense of North Dakota ratepayers," the letter continued. "The [Clean Power Plan] strips the Commission of the authority to do so ... the PSC will oppose a State Implementation Plan that further erodes our authority."To plan or not to plan?
North Dakota public service commissioner Randy Christmann acknowledged in an interview that the state could face consequences from the federal government if the PSC suspended Clean Power Plan implementation.
"What would we do if we suspend it and thus we don't meet their standards? I don't know the answer to that -- but if that seems like a weak answer, I would challenge, what do we do if people can't pay for the electric bills? That doesn't work either," said Christmann, noting his statements do not necessarily reflect the views of the entire Public Service Commission.
"Frankly, I'm more concerned about people being able to not only keep the electricity on in their house, but also pay for healthy food, pay for their medications and things like that," said Christmann. "I'm more concerned about those things than I am about the president meeting his campaign pledges."
Christmann added that unless the North Dakota Department of Health is able to craft a state implementation plan that is "substantially different" from options suggested by EPA, then he would prefer the state not develop an implementation plan at all.
In this respect, however, the state's utilities disagree; most suggested that the state develop its own plan.
"Until the courts issue a legal decision on the rule, Montana-Dakota recommends the Department continue on a path to complete a state plan that considers achievable options at each facility, but also meets the intent of the CPP Rule as completed, allowing as much compliance flexibility for utilities as possible," wrote Abbie Krebsbach, environmental director for Montana-Dakota Utilities Co.Will wind power blow away doubts?
Many North Dakota utilities also went into detail on how they think a potential carbon trading system under the Clean Power Plan should work.
For example, Basin Electric Power Cooperative suggested in its comments that "because of uncertainties as to the trading market for Emission Rate Credits or allowances, the Department should allow nationwide trading to provide utilities with the maximum flexibility under the Rule."
Minnkota Power Cooperative Inc., Otter Tail and Basin Electric all advocated for a state plan that allowed trading on a nationwide basis. This, Otter Tail wrote, would provide "the greatest compliance flexibility, economic efficiencies and market liquidity."
Utilities were less eager to embrace the idea of installing more renewable energy generation to meet emission reduction requirements, with most arguing that the amount of wind and solar that would need to be installed would put undue strain on the state's electric infrastructure and pocketbooks.
EPA's "estimates for renewable resource in North Dakota are significant and the transmission infrastructure is not in place to accommodate the amount of renewables EPA assumes can be added," Montana-Dakota Utilities wrote.
Environmental groups were more hopeful about North Dakota's renewable energy potential, however.
In its comments, the Sierra Club argued the state can achieve its targets by installing 1,500 megawatts of wind energy by 2031, steadily increasing energy efficiency savings and phasing out the state's older coal plants.
"Investments in North Dakota's abundant clean and renewable energy resources -- particularly in wind -- will not only help control generation costs but also hedge against fuel price volatility, prevent pollution, increase our generation diversity, and help maintain our energy exporter status," wrote Todd Leake, chairman of the Sierra Club's Dacotah Chapter.
EPA has committed to sending additional technical staff to North Dakota to assist in the plan-writing process (EnergyWire, Oct. 5). An EPA spokeswoman declined to comment for this article.
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Brownstein Hyatt Farber Schreck's Gore Talks Omnibus Winners and Losers
Dec 22, 2015 | E&E TV
Last week, President Obama signed into law the fiscal 2016 Omnibus Appropriations Act, which lifts the ban on crude oil exports and extends wind and solar energy tax credits for five years, among several other energy measures. During today's OnPoint, Elizabeth Gore, energy policy director at Brownstein Hyatt Farber Schreck and a former chief of staff and legislative director in the Senate, discusses the energy winners and losers in the omnibus and talks about prospects for moving energy-related measures through Congress next year.
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Elizabeth Gore, energy policy director at Brownstein Hyatt Farber Schreck. Elizabeth, it's nice to have you here.
Elizabeth Gore: Glad to be here.
Monica Trauzzi: Elizabeth, last week President Obama signed into law the fiscal 2016 omnibus. It is being touted as a bipartisan deal, but House Speaker Ryan has received pushback from members of his caucus that he made too many concessions to Democrats. On the whole, particularly on energy issues, how would you qualify the balance of the compromise?
Elizabeth Gore: The biggest piece of this on the energy front was the package of the oil export ban being lifted paired with energy tax credits being extended and providing some certainty and longevity in that area. That's a compromise. There are winners and losers on that. It's a little bit hard to keep score. My own view is that it all represented good policy, and to that extent, I think everybody wins.
Monica Trauzzi: Obviously, the lift of the ban on crude oil exports is one of the biggest stories to come out of the negotiations overall. It's something that seemed politically unfeasible just a few months ago, so what happened, and just how big of a step is this in terms of energy policy more broadly?
Elizabeth Gore: Well, in terms of how big of an issue it is, I think it's an incredible shift in a short period of time. As you said, just a few years ago this was something people started to talk about but didn't really seem to have very many supporters and didn't have a lot of political legs to it. It's a great demonstration of how much can get done if you're willing to package it together with a lot of other provisions. The supporters of this were able to prevent it from getting too partisan. There was some Democratic support; Sen. Heidi Heitkamp from North Dakota, for example, was a big, big supporter, and that helped keep it from becoming a Keystone issue where it became very polarizing. And then by adding the energy tax provisions, it really created a more balanced package, and that's what was able to get across the finish line.
Monica Trauzzi: So the oil industry could be considered a winner. Refiners also got their tax break included in the deal. Who are the other big energy winners?
Elizabeth Gore: Clearly, the renewable energy industry did very well in this. They were able to get, as I said, some certainty and longevity that allows real investment to go into the solar and wind industries in particular, and that makes them winners. I'd also mention environmental groups did well in this bill. One of the things that's interesting is what wasn't included, and there were a lot of riders that Republicans in particular were pressing to block rules that the administration has been pushing, and by and large those riders were not included in this package.
Monica Trauzzi: And do you anticipate that heading into next year we'll see those types of issues come back up?
Elizabeth Gore: I do. I think a lot of these issues are going to be revisited next year. But the administration and the Democrats held tough on a lot of these efforts to block some key environmental rules, so it's unclear to me that they're going to be any more successful next year.
Monica Trauzzi: You mentioned the five-year extension of wind and solar tax credits. What does it mean for wind and solar capacity and the potential that we might see coming out of these industries over the next few years?
Elizabeth Gore: The Clean Power Plan, which of course requires cuts in greenhouse gas emissions from utilities, has helped to give a boost to these renewable energy sources, and by providing some certainty on the tax front, these industries really benefit. They have had the disadvantage of seeing their tax provisions extended stutter-step for many, many years, and this longer extension gives them a huge boost, particularly when paired with the Clean Power Plan rules.
Monica Trauzzi: Quite fascinating to see energy-related issues receiving so much attention overall in this package. What do you think this means for efforts to move a broader energy deal? Does it add fuel, or does it sort of push it aside for the time being?
Elizabeth Gore: My view is that the biggest energy issue is the Clean Power Plan and trying to cut carbon emissions. It's hard to see middle ground in that area. If you look at the Clean Power Plan rules in particular, Republicans are in a "just say no" posture; Democrats don't want to tinker with it at all. It's hard to see where you can find compromise where you could make adjustments to the rules that might make them a little less onerous but still meet the overall goals. So it's hard for me to see big areas of compromise in 2016.
Monica Trauzzi: And Congress is pretty limited in what they can do specifically on the Clean Power Plan. I mean, much of this is happening in the states and in the courts.
Elizabeth Gore: Absolutely. I think there are other -- listen, success begets success, and there may be other areas where Congress is going to be able to find compromise. But I think on the biggest issues, it's hard to see a path for a big bill.
Monica Trauzzi: So would you say that Washington is working again, based on what we saw last week, or is that too far of a stretch?
Elizabeth Gore: Well, it certainly worked last week, and I think that there needs to be credit given for the fact that they were able to put together a large bill that covered a huge range of issues, not just in the energy space but across the government. So it worked last week, and we'll have to see. Going into a presidential year, that makes it even more difficult to legislate, but I think we can always be hopeful that Congress will continue to work.
Monica Trauzzi: All right, we'll end it right there. Thank you for coming on the show, I appreciate your time.
Elizabeth Gore: I'm glad I could be here.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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'Systems Approach' Leads to More FracFocus Disclosure; Much Data Still Secret
Dec 22, 2015 | E&E - Energywire
By Mike Soraghan
The use of a "systems approach" has led to more public disclosure of hydraulic fracturing chemicals, a new Harvard University study found, but overall companies are keeping more information secret.
The systems approach, in which companies report chemical identifiers without attribution to specific products, reduced withholding rates more than fourfold, from about 14 to 3 percent, according to the study to be published in the January edition of Energy Policy.
"It appears that when they use the systems approach, companies are a lot more comfortable about disclosure," said author Kate Konschnik, the director of Harvard Law School's Environmental Policy Initiative.
Konschnik and Archana Dayalu, a doctoral student of atmospheric science, analyzed years of data from FracFocus, a website where oil and gas companies report the chemicals they used in hydraulic fracturing of oil and gas wells. For the study, they looked at whether the reports were filed on time, how accurate they were and how often information was withheld.
Konschnik was the author of a 2013 report that highlighted flaws in the accuracy and usefulness of FracFocus (EnergyWire, April 23, 2013). Since then, she has worked with the Groundwater Protection Council, a nonprofit that administers the site, on improvements (EnergyWire, Feb. 27).
Though Baker Hughes Inc. made headlines in April 2014 for seeking to eliminate trade secret claims in its reporting using the systems approach, the study found that Schlumberger Ltd. used the systems method far more often (EnergyWire, April 24, 2014). Schlumberger used the systems approach on 64 percent of the forms analyzed. Baker Hughes used the method on 13 percent of its forms, while Halliburton Co. used it on less than 1 percent.
But Baker Hughes saw the largest drop in withholding rates when employing the systems approach, from 18 to 4 percent. But Halliburton's withholding rate increased with use of the systems approach.
But those three companies account for only 31 percent of the records. Overall, the number of chemical identifiers withheld as "trade secrets" in the reporting system begun in 2013 was about 5 percent higher than the original system begun in 2011 and analyzed in a previous report by U.S. EPA.
The study found that the way some states mandated disclosure impedes the use of the systems approach. For example, some states' rules spell out that companies must list the ingredients of products used, not simply the chemicals used. The report points to Alaska, Idaho, Mississippi, Pennsylvania and West Virginia.
"If those states ... intend for companies to use the systems approach on FracFocus, they may need to revisit their reporting requirements," the study says.
But Konschnik said states should retain the right to demand more specific information about product ingredients in emergencies, such as worker exposure to hazardous products.
The study also found that the amount of time it took to file reports fell dramatically after state regulators imposed deadlines as part of making disclosure mandatory.
Before reporting deadlines, operators took an average of nearly 83 days to file a FracFocus form. After deadlines were imposed, that dropped to 33 days.
Public scrutiny can also help, the study said. After EnergyWire reported in 2013 that more than a fifth of FracFocus reports had being filed late in Colorado, state officials announced that they would penalize companies that file late. After that, the study found, only about 5 percent were late.
"Simply by signaling a deadline (or other requirement) will be enforced, a state may boost compliance rates," the study said.
FracFocus was launched in 2011 by the Groundwater Protection Council, which is governed by a board of state water regulators, and the Interstate Oil and Gas Compact Commission.
It was quickly endorsed by oil and gas trade groups and is the industry's favored means of disclosure. The site now has disclosure reports for more than 106,000 wells.
As part of their effort, Konschnik and Dayalu made the chemical ingredient data more accessible in searchable form. They corrected, or "cleaned," data available from the website and turned it into text files that can be exported into a spreadsheet program.
Click here to access the data used in the study.
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Will State Count Massive L.A. Methane Leak When it Totals Hoped-for GHG Cuts?
Dec 22, 2015 | E&E - Climatewire
By Anne C. Mulkern
Multiple investigations are underway into the natural gas leak in Los Angeles County that has forced evacuations and school closures and could mean steep fines for the utility involved.
Now in its ninth week, the leak poses a setback to California's ongoing work to cut carbon pollution. But how the state will account for the spike in greenhouse gas emissions isn't clear.
Southern California Gas Co. (SoCalGas) has estimated that the leak in a line in the Los Angeles suburb of Aliso Canyon could take four months to repair. If that projection is right, by the time it's capped, it will have put 15 million metric tons of carbon dioxide equivalent into the air, said Tim O'Connor, director of the Environmental Defense Fund's oil and gas program in California.
That would represent 3 percent of the state's greenhouse gas emissions, he said. That's looking at it over a 20-year impact. The state's Air Resources Board (ARB) looks at the hit over a 100-year period, he said, which produces a lower number.
"Regardless of whether using their number or our number, the number is really, really large," O'Connor said. "Some mitigation is needed. We're going to need to make the atmosphere whole."
Methane leaks are not included in what companies need to report to ARB under the state's cap-and-trade program for carbon emissions. The state's counting of greenhouse gas pollution focuses primarily on human-caused contributions. There's no plan yet for how -- or whether -- California will factor in the Aliso Canyon emissions when it determines whether it has met its goal of cutting carbon.
California wants to slice greenhouse gas pollution 40 percent below 1990 levels by 2030, and 80 percent beneath 1990's point by 2050.
"We'll have to see how much methane is ultimately released," Dave Clegern, an ARB spokesman, said in an email. "That will be part of the full impact we have to assess."
When the state set its goal of reducing emissions 40 percent, O'Connor said, it was thinking more about the pollution that happens every day, and not episodic emissions like a time-limited leak. But "now that we have this," he said, "it has to be taken into account."
He said the magnitude of the leak could push the state to look more closely at how to make sure methane leaks are prevented.
"The state's eyes are open, especially on [natural gas] storage, that this is an area to look at," O'Connor said. "Natural gas storage tends to fly under the radar until catastrophe strikes."
SoCalGas did not answer questions provided Friday.3 agencies investigating
California's Public Utilities Commission and the Conservation Department's Division of Oil, Gas and Geothermal Resources (DOGGR) separately have launched probes. The agencies have told SoCalGas to hire an independent third party "to perform a technical analysis of the well failure and its cause," Gov. Jerry Brown's (D) Office of Emergency Services said. The utility must pay for it without charging its ratepayers, and the results will be made public.
The South Coast Air Quality Management District (AQMD), which oversees air matters in Los Angeles and Orange counties, meanwhile, has issued a notice of violation to SoCalGas. AQMD rules prohibit any source from creating a public nuisance, said AQMD spokesman Sam Atwood. The sulfur or "rotten egg" smell tied to the leak could be considered a nuisance.
The agency under that notice could assesses penalties for each day of the leak. Those likely would be determined through negotiations with the company and AQMD lawyers after the problem is resolved and the extent is known. AQMD has a tiered structure for penalties, depending on whether there was strict negligence or whether it was a willful and knowing violation.
The local air agency's hearing board, an independent, five-member group, will meet Jan. 9 to consider a petition on SoCalGas. That likely would require the company to take specific steps to remedy violation. AQMD lawyers have not yet prepared the petition, so the requested steps haven't been determined.
ARB has some oversight but is deferring initially to AQMD, said Clegern with ARB.
"We will have to see the full impact of the incident before we can look at anything like that from a GHG point of view," he said in an email. "In other words, the leak must be stopped."
Los Angeles, meanwhile, has sued SoCalGas. The city in its legal complaint is asking the court to require the company to reduce emissions of greenhouse gas climate pollution.
"We think that's wholly appropriate," said O'Connor with EDF.
The company should have to fund efforts that cut emissions as a kind of "offset" for the amount of short-lived climate pollutants ultimately connected to the leak, he said.
"We need to make sure the accounting's done" and that emissions are lowered in an amount "at least equal to the amount of pollution put out," O'Connor said. "This leak is so big, you can't just mitigate the gas company's pollution and get enough" reductions.
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DOJ Fights Bid For Court To Weigh Corps' Criticisms In CWA Rule Lawsuit
Dec 22, 2015 | InsideEPA
By Bridget DiCosmo
Department of Justice (DOJ) attorneys are urging a federal district court to reject states' call to include Army Corps of Engineers officials' criticisms of the draft EPA-Corps Clean Water Act (CWA) jurisdiction rule as part of the record in the states' suit over the rule, with DOJ saying the criticisms were deliberative and should not be part of the suit.
“Here, the Agencies reasonably determined that agency communications, draft documents, and internal briefing memoranda contain deliberative material,” DOJ attorneys argue on behalf of EPA and the Corps in a Dec. 21 opposition brief filed in State of North Dakota, et al., v. EPA, et al., a suit filed by North Dakota and 13 other states over the rule in the U.S. District Court for the District of North Dakota.
The Corps criticisms at the center of the dispute were in inter-agency memos on the then-draft version of the CWA rule, and highlighted legal and other concerns about the regulation. Neither agency released the comments publicly, but GOP lawmakers released them after the agencies signed the final version of the rule May 27.
The coalition of states suing over the CWA regulation say EPA has no justification for excluding the memos from its administrative record in the case, because they are already public knowledge after being released by GOP lawmakers earlier in the year. The states want to include the memos in the district court suit because they believe the criticisms will bolster their claims that the CWA rule is unlawful.
Magistrate Judge Alice Senechal on Nov. 10 issued an order that rejected DOJ's request to stay the district court litigation pending a decision by an appellate court on whether it has authority to hear suits over the CWA rule. That order required EPA to file its administrative record, which includes documents that informed regulators' decisions in crafting a final rule or other agency action, and is intended to show a court the reasoning that contributed to the rule under challenge.
Agencies are allowed to withhold “deliberative” internal communications from the record, but the coalition of states argues in the suit that the documents have lost their “privilege” because they have already been released publicly.
'Deliberative' Memos
DOJ however is arguing in its new brief that EPA and the Corps properly did not include the memos in the administrative record in the lawsuit because the criticisms were deliberative comments on the rule. DOJ asks the court to reject the states' argument that EPA cannot justify excluding the “privileged” documents from the record because they are already public following their release by GOP lawmakers.
In its filing, DOJ says that the states' argument conflates “privileged” and “deliberative,” saying that the memos are “deliberative” and therefore should not be part of the record. “The States erroneously conflate the deliberative process . . . which can be asserted in the [Freedom of Information Act] FOIA context and which can be waived -- with the deliberative document doctrine under the Administrative Procedure Act [APA],” the brief says.
In this context, the APA protects deliberative materials from judicial review whether or not those materials are otherwise privileged and whether or not they are in the public domain, the brief says.
Deliberative documents are defined as those that “make recommendations or express opinions on legal or policy matters” and are prepared ahead of a final decision to assist decisionmakers, DOJ says, citing a 1992 U.S. Court of Appeals for the 1st Circuit ruling, Town of Norfolk v. Army Corps of Engineers.
DOJ argues that deliberative documents are not considered part of the record for “two sound reasons:” that it is final agency action and articualted justification for it that are the subject of review rather than internal deliberations and that protecting draft, pre-decisional deliberative materials from judicial scrutiny advances the fundamental policy of encouraging the free flow of ideas within agencies. “Indeed, the routine disclosure of such deliberative materials would serve only to chill the frank and candid resolution of complex issues addressed by the Rule,” DOJ says.
The brief cites Madison County Building & Loan Association v. Federal Home Loan Bank, a 1980 8th Circuit ruling that held that “staff memoranda and recommendations . . . used by an agency in reaching a decision” are not part of the record due to “concerns over proper agency functioning.”
Stay Dispute
The administration in an earlier brief also urged the court to reverse the Nov. 10 order rejecting the administration's request for a stay in the litigation. The district court imposed a stay on implementation of the CWA rule in the 14 states that are pursuing the suit, though that order was superseded by a 6th Circuit Ruling that imposed a nationwide stay on implementing the rule.
The 6th Circuit is weighing whether it has power to hear consolidated suits over the rule, and if it decides such cases must be heard in appellate court then it could moot the myriad pending district court suits over the rule. The 6th Circuit at press time had not ruled, but Senechal has refused to stay the district court suit in the meantime.
In a Dec. 14 brief, DOJ argued that if the 6th Circuit rules it does have jurisdiction over the suits, it could moot the slew of pending district court cases. Senechal's “[o]rder denying the stay omits any consideration of whether there would be harm to Plaintiffs from a limited stay of the litigation at a time when the Rule is already stayed nationwide and enjoined as to them,” DOJ said, adding that the judge's order should be reversed “for that reason alone.”
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Proposal Would Change Emission-Reporting Requirements
Dec 22, 2015 | E&E - Greenwire
By Amanda Reilly
U.S. EPA is proposing changes to its program requiring that large sources of greenhouse gases report emissions on a yearly basis.
In the proposal this week, EPA would reduce certain reporting requirements, change the way certain entities report data, establish confidentiality provisions and make other minor changes.
EPA says the proposal will make it easier for entities to report greenhouse gas emissions, as well as improve the quality of data. The agency has proposed to implement the changes in a staggered manner over the reporting years 2016, 2017 and 2018.
"These changes reduce or simplify requirements in a manner that would ease [the] burden on reporters and the EPA," the agency said.
The full proposal will be published soon in the Federal Register, kicking off a public comment period.
EPA in 2009 issued its rule requiring fossil fuel and industrial gas suppliers, vehicle and engine manufacturers, and other greenhouse gas sources to report emissions. Earlier this year, EPA finalized new reporting requirements for the oil and gas sector.
In the new proposal, EPA said it would remove reporting requirements for certain facilities that report few emissions anyway. Among those changes: Underground coal mines would be allowed to stop reporting after they are abandoned and sealed. The agency will also remove pilot gas from reporting requirements.
EPA said it is also exploring whether it should change the method and frequency of reporting for some entities. For example, the agency is looking at whether to increase the frequency with which coal mines must obtain samples for methane measurements.
The proposal would also require natural gas suppliers to report emissions by state -- one of several changes EPA says would allow it to better enforce the program because it can "more thoroughly verify GHG data and understand trends in emissions."
EPA says it does not expect the overall reported emissions to change under the proposal.
The changes would cost about $2.05 million between 2016 and 2018, and about $1.08 million every year after, EPA said. Most of the costs come from the proposed requirements for monitoring methane from underground coal mines.
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