Preview Newsletter
ACC PM 12/24/15
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US Researchers to Advise Echa on Alternatives Assessment
Dec 24, 2015 | Chemical Watch
By Leigh Stringer
Echa has asked a team of researchers from the University of Massachusetts to advise it on ways to improve how the EU identifies and assesses alternatives to hazardous chemicals. -
State, Industry Opponents Call EPA's ESPS Stay Defense 'Self-Contradictory'
Dec 24, 2015 | Inside EPA
By Abby Smith
States and industry groups that are seeking to stay EPA's existing power plant greenhouse gas (GHG) rule are denouncing the agency's defense of its regulation as hypocritical, faulting officials in recent legal filings for downplaying the rule's immediate effects in court while at the same time calling the rule “transformative” in public statements. -
Superstar Lawyers Gird for Litigation 'World Cup'
Dec 24, 2015 | E&E Greenwire
By Robin Bravender
Environmental lawyers are lining up to have prominent positions in what's expected to be an epic court battle over the Obama administration's Clean Power Plan. -
Enviros Release New Video of Natural Gas Leak
Dec 24, 2015 | E&E Greenwire
By Joby Warrick
A plume of invisible methane rises above Los Angeles in new infrared video obtained by the Environmental Defense Fund. More than 150 million pounds of methane have leaked from the largest natural gas storage facility on the West Coast since it was first detected more than two months ago. -
Industry Innovation, Not Costly Regulations, Will Reduce Methane Emissions
Dec 24, 2015 | The Hill - Congress Blog
By Jack Rafuse, Ph.D.
According to the Environmental Protection Agency, America’s natural gas industry has cut methane emissions by 11 percent in the past decade. Methane emissions from hydraulically fractured natural gas wells are down 79 percent in that period. -
Arctic Study Underscores How Little is Known About Methane Emissions
Dec 24, 2015 | E&E Climatewire
By Gayathri Vaidyanathan
The Arctic tundra is releasing more methane, a potent greenhouse gas, during wintertime than scientists previously thought. -
The EPA’s Scandalous December
Dec 24, 2015 | The Hill - Congress Blog
By Jillian Melchior
The Environmental Protection Agency has been very, very naughty this Christmas. Lucky for the rogue agency, an especially boisterous December news cycle kept the EPA’s prolific misbehavior off the front pages. Nonetheless, the month saw several unrelated developments all involving unethical—and sometimes, possibly illegal—behavior at the EPA. -
EPA Finds 'Background' Ozone Rising But Unlikely To Hinder Meeting NAAQS
Dec 24, 2015 | Inside EPA
By Stuart Parker
EPA in a new white paper says that “background” ozone air pollution from sources beyond regulators’ control is slowly rising domestically and globally, but downplays concerns raised by some industry groups, GOP lawmakers and others that this will make it impossible for states to attain the agency’s recently tightened ozone standard. -
District Courts Urged To Block Appellate Review Of CWA Coal Ash Lawsuits
Dec 24, 2015 | Inside EPA
By David LaRoss
Environmentalists are urging federal district courts to reject energy companies' bid for a quick appellate ruling on whether the Clean Water Act (CWA) regulates pollution from coal ash disposal sites that travels through groundwater to protected surface waters, saying the requests represent an attempt to delay a ruling on the merits of the issue. -
EPA Struggles to Ditch Contentious Rule's Catchy Nickname
Dec 24, 2015 | E&E Greenwire
By Tiffany Stecker
As the 92nd Congress ironed out the Clean Water Act amendments in 1972, lawmakers were unhappy with a well-worn term for resources deserving federal protection, "navigable waters." -
Energy Efficiency Benefits Trickle Up in Structures, Study Finds
Dec 24, 2015 | E&E Climatewire
By Umair Irfan
Insulation, double-glazed windows and smart thermostats have benefits that accrue to landlords, even if they're not paying energy bills, according to researchers.
Industry and Association News - There are no clips to report at this time.
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Energy and Environment News
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US Researchers to Advise Echa on Alternatives Assessment
Dec 24, 2015 | Chemical Watch
By Leigh Stringer
Echa has asked a team of researchers from the University of Massachusetts to advise it on ways to improve how the EU identifies and assesses alternatives to hazardous chemicals.
Echa’s head of unit for risk management implementation, Matti Vainio, told Chemical Watch that the analysis of alternatives is a "very important part" of about 20 restriction proposals and almost 100 applications for authorisation that have been submitted under REACH.
"Echa considers that it would be opportune to take stock and learn from these [proposals and applications] and see how the analysis could be further improved so that substitution would take place in an appropriate manner in the EU," he added.
In early 2016 a team from the university's Lowell Center for Sustainable Production will send out a survey to EU member states and industry. This will gather information on how they currently identify, evaluate and adopt suitable alternatives.
Responses will feed into a study, that also involves interviews with stakeholders from:
government;
industry;
academia; and
NGOs.
The aim is to get to understand their existing substitution knowledge.
The study – to be finalised in the middle of 2016 – will provide recommendations on:
how member states can support the identification, evaluation and adoption of “innovative solutions” to substitute chemicals of concern; and
how to build a community around alternatives assessment for chemical substitution in the EU.
Mr Vainio said the agency assigned Lowell because it has "considerable experience in alternative assessment due to the implementation of the State of Massachusetts' 'Toxics Use Reduction Act'". The Toxics Use Reduction Institute (Turi) that implements the Act is also part of the university.
Furthermore, said Mr Vainio, the university is spearheading an interagency alternatives assessment network in the US. "This network has collaborated with European partners, and many US companies participating in the network are also operating in the EU."
"Echa thought that it would be helpful to use the experience and knowledge of the University of Massachusetts Lowell when developing further the analysis of alternatives and consequent substitution strategies in the EU," he said.
Associate Professor Joel Tickner, heading the Lowell team, says that through this work, and drawing from experience in the US: "We hope to identify mechanisms, such as education, training and guidance, that Echa and the European Commission can implement to improve alternatives assessment and substitution processes undertaken by member states and companies.
"Such mechanisms may include a toxics use reduction institute-like centre focused on technical support, research and education for industry on substitution."
A secondary role of the work, professor Tickner says, is to build stronger international collaboration in this increasingly important field of chemicals assessment and management.
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State, Industry Opponents Call EPA's ESPS Stay Defense 'Self-Contradictory'
Dec 24, 2015 | Inside EPA
By Abby Smith
States and industry groups that are seeking to stay EPA's existing power plant greenhouse gas (GHG) rule are denouncing the agency's defense of its regulation as hypocritical, faulting officials in recent legal filings for downplaying the rule's immediate effects in court while at the same time calling the rule “transformative” in public statements.
“Attempting to walk a line between downplaying the need for a stay and advocating for the Power Plan's immediate importance, EPA's opposition spins a self-contradictory tale of two rules,” reads a Dec. 23 reply brieffiled by 25 opposing states, led by West Virginia.
The states and industry challengers argue in a series of filings that EPA cannot tout the significance of its existing source performance standards (ESPS) rule while arguing in the litigation that neither states nor utilities must take immediate action to comply.
The states' brief adds: “EPA asserts that the Plan is central to 'establish[ing] this country's leadership' right now . . . and is 'critically important' to combating 'the nation's most important and urgent environmental challenge,' such that any delay 'would adversely affect public health and welfare.'
“In the next breath, EPA denies that this momentous rule is covered by the [Supreme Court's] clear statement rule of Utility Air Regulatory Group (UARG) v. EPA . . . for 'agency decisions of vast economic and political significance,' . . . and belittles the notion that Petitioners 'must devote substantial efforts during the period of judicial review to develop plans.'”
The petitioners are asking the appellate court to stay the rule during the litigation, charging that without it, they will be forced to overhaul their generation portfolios even though the rule has not yet won court approval. As an example, they note they shuttered coal plants to comply with EPA's mercury rule for power plants only to have the high court find in Michigan v. EPA that the agency had failed to adequately consider costs when making a threshold determination.
The state and industry reply briefs often cite the 2014 UARG case, in which the Supreme Court narrowed the reach of EPA's GHG permit program and warned the agency to carefully consider its authority before imposing significant regulatory costs.
“When an agency claims to discover in a long-extant statute an unheralded power to regulate 'a significant portion of the American economy,' we typically greet its announcement with a measure of skepticism. . . . We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance,'” the court said in the UARG opinion.
ESPS opponents have frequently cited this UARG language to argue that a court should not defer to EPA's interpretation of the Clean Air Act provision that is the basis for the rule. The ESPS, opponents argue, is a rule of “vast economic and political significance,” and thus requires Congress to explicitly authorize EPA's authority to promulgate it.
UARG Language
The UARG language is particularly important for two critical legal issues raised by petitioners -- whether EPA can regulate power plants' carbon dioxide emissions under section 111(d) given that it already regulates their mercury emissions under section 112, and whether EPA can regulate “beyond the fence line” of affected facilities.
To win a stay, petitioners must show they are likely to succeed on those challenges, and that the rule would cause “irreparable harm” to petitioners as the litigation progresses. They must also show that a stay would be in the public interest and that a stay would not unnecessarily harm other parties to the litigation.
Several observers have said opponents face a high bar to win a stay, particularly given changes to the final rule that extend states' deadline to submit a final compliance plan, to 2018, and the start to the formal compliance period, to 2022.
EPA, in its Dec. 3 response to the stay motions emphasized the delayed planning and compliance periods, as well as states' option to “elect to have EPA do all of the work required to adopt and implement standards within the state” by accepting the federal plan.
EPA also downplayed the significance of UARG, calling petitioners' reliance on the opinion “misplaced.” Unlike in UARG, EPA argues, the agency is not “straining the interpretation of a clear statutory provision” in the ESPS or “expanding its authority so as to require such a strained interpretation.”
“It is instead applying a sensible and straightforward interpretation of the 'best system of emission reduction' to determine the stringency of emission standards, and it is doing so for polluters that have long been regulated under Section 111 . . . The Rule also builds upon existing industry trends and requires gradual and measured CO2 reductions, thus 'moderately increasing the demands' it makes of these sources,” EPA writes.
The agency adds: “Movants mischaracterize the Rule in suggesting that it calls for some 'massive industrial transformation.'”
But opponents in their reply briefs are pushing back against EPA's claims, suggesting that the agency is contradicting itself in order to defend the ESPS against the stay motions. The states dub EPA's treatment ofUARG a “head-in-the-sand approach,” noting that “[t]hough UARG involved the same agency regulating emissions of the same gas, EPA carefully avoids quoting the UARG language that controls this Court's determination.”
Chevron Deference
In a separate Dec. 23 brief, a collection of utility, coal, labor and industry groups argue that once the UARGlanguage is triggered, EPA's pursuit of Chevron deference -- the landmark Supreme Court precedent that gives deference to an agency when statutory language is ambiguous and the agency's interpretation is reasonable -- is “irrelevant.”
“EPA also claims UARG does not apply because it is not 'straining the interpretation of a clear statutory provision,' the text does not clearly foreclose EPA's interpretation. EPA has it backwards: under UARG, where 'decisions of 'vast economic and political significance' are concerned,' the statute must 'speak clearly' to allowEPA's interpretation,” the industry coalition writes.
The industry and labor coalition argues that EPA mischaracterized the rule's “transformative effect” in its defense, leading the agency to “severely understate” the time needed by industry to make the necessary changes to comply with the ESPS. The agency “hence ignores the need for irrevocable action now,” they write.
The brief points to declarations supporting a stay from executives of both large and small utilities, who outline the need for immediate action to begin making investments and constructing new generation for ESPS compliance. “The reality is that almost every State and everyone connected to the power sector is now engaged in intense efforts to reengineer the power sector in time to meet the 2022 compliance deadline,” the brief says, adding “Administrator [Gina] McCarthy is correct: the Rule today is in the process of being 'bak[ed] into the system.'”
The coalition also argues that industry cannot “responsibly defer” making compliance decisions until EPA's September 2019 deadline to approve final plans because that would leave the sector with “far too little time” to prepare for the 2022 start date to the compliance period.
Furthermore, “EPA's attempt to minimize the Rule as a 'market trend' is belied not only by the government's public statements trumpeting the Rule as 'aggressive[ly] transform[ing]' the power sector, but the government's own data,” industry argues.
Constitutional Concerns
In another reply brief, coal mining firm Peabody Energy Corp. points to several constitutional issues with the ESPS, arguing that the rule raises several concerns with the Fifth Amendment, the separation of powers and federalism.
“The Rule's singling out of coal to bear a disproportionate, targeted, and severe burden raises serious Fifth Amendment questions,” Peabody writes in its brief, arguing that the rule could constitute a “taking” of property without just compensation. “EPA insists closing coal plants enhance the U.S. bargaining position in the Paris negotiations. But not even foreign policy interests of the highest order can endow the Executive Branch with missing legal authority.”
The Peabody brief also rejects the notion that EPA should receive Chevron deference in its interpretation of section 111(d) to permit it to promulgate the ESPS. “Even if there were two 'versions of Section 111(d)' (and there are not), EPA would lack the lawmaking power to choose which one to make operative,” Peabody writes.
In addition, the coal company argues that states supporting EPA in the litigation -- which consists of 18 states led by New York -- cannot “permissibly collude with EPA to aggrandize its federal authority,” as such an action would violate federal-state separation. “EPA also ignores that anti-commandeering bars unlawful complicity as much as coercion,” the brief argues.
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Superstar Lawyers Gird for Litigation 'World Cup'
Dec 24, 2015 | E&E Greenwire
By Robin Bravender
Environmental lawyers are lining up to have prominent positions in what's expected to be an epic court battle over the Obama administration's Clean Power Plan.
The lawsuit to determine the fate of U.S. EPA's landmark rule to curb greenhouse gas emissions from power plants promises to go on for years and is expected to ultimately be decided by the Supreme Court. The court battle that kicked off this fall already involves nearly every state, dozens of industry groups, environmentalists, labor groups and scores of attorneys.
"For environmental lawyers, it's the World Cup," said Suzanne Murray, a former EPA regional general counsel who's now a partner at Haynes and Boone.
"This is a historic time in that now the agency is actually looking at the regulation of carbon, and the implications and the impacts of that are dramatic," Murray added. Whether lawyers are defending the administration's legacy or argue that the rule is overreaching, "they have a big incentive to participate."
Given the high stakes of the case, all sides -- the Obama administration, states, industry, greens and many others -- have recruited heavy hitters in environmental law.
The lawsuit is now pending before the U.S. Court of Appeals for the District of Columbia Circuit, where judges are weighing a request from EPA challengers to halt the rule. That decision is expected early in 2016. Then, lawyers on all sides will stay busy as the court delves into the merits of the lawsuit and hears oral arguments. A decision from the appeals court could come late next year or early in 2017. Experts predict the case will then head to the Supreme Court.
Here's a look at some lawyers with key roles in the battle.
State leaders
Nearly every state is participating in the lawsuit.
"This is a big deal for them, not just with the symbolism of climate change but what they might have to do," Murray said.
Leading the state charge against the EPA rule: West Virginia Attorney General Patrick Morrisey (R).
Morrisey has made fighting EPA climate rules central to his job since he took office in 2013. He led a coalition of 24 states challenging the rule, and ensured that their petition was the first one filed against the Clean Power Plan (which means the case will be called West Virginia v. EPA). A handful of other states have sued EPA separately.
"West Virginia is really ground zero in the Obama administration's illegal and unprecedented assault against coal miners and their families," Morrisey said in an interview. He added that he's hoping to send a message that coal has a future in the United States.
Prior to becoming West Virginia's top attorney, Morrisey was a Republican staffer on the House Energy and Commerce Committee and worked as an attorney in private practice. He ran unsuccessfully for a New Jersey House seat in 2000.
West Virginia Solicitor General Elbert Lin is also certain to be central to the court battles.
He's considered an up-and-comer in the environmental law world, and he argued before the D.C. Circuit earlier this year that judges should take the unusual step of blocking EPA's proposed climate rules for power plants before they were finalized.
The judges disagreed, but Lin will continue to play a lead role in the lawsuit as the appeals court digs into the merits of the case. He was previously a partner at the law firm Wiley Rein, a law clerk to Supreme Court Justice Clarence Thomas and a trial attorney at the Justice Department.
Another 18 states have jumped into the lawsuit to defend EPA.
That coalition is led by New York Attorney General Eric Schneiderman (D), who said this fall that he's "committed to aggressively defending the Clean Power Plan to ensure progress is made in confronting climate change."
Within Schneiderman's office, Assistant Attorney General Michael Myers is widely viewed as a central player in the Clean Power Plan case. He's previously been at the center of major environmental cases where New York supported the Obama administration's environmental rules.
Industry's legal muscle
Dozens of industry groups are involved in the behemoth lawsuit against EPA, but a handful of well-known environmental lawyers are seen as central players driving the legal strategy.
Among them are Roger Martella and Peter Keisler at Sidley Austin. They're representing industry groups including the U.S. Chamber of Commerce and the National Association of Manufacturers.
Martella was EPA's general counsel during the George W. Bush administration and handled natural resources cases at the Justice Department.
Keisler is a former acting attorney general who has argued several major Clean Air Act cases before the Supreme Court and is seen by some as a likely candidate to argue against the Clean Power Plan if the case makes it to the high court.
Representing utilities opposed to the rule is Bill Brownell of Hunton & Williams. His clients include the Utility Air Regulatory Group -- a nonprofit association of electric generating companies -- and the American Public Power Association.
Other industry attorneys considered central players in the legal drama are Peter Glaser of Troutman Sanders, who's representing the National Mining Association, and Tom Lorenzen of Crowell & Moring, a former Justice Department lawyer representing power cooperatives who argue that the rule is illegal.
EPA's defenders
In EPA's corner is a team of lawyers from the Justice Department led by Eric Hostetler, Norman Rave and Amanda Shafer Berman.
Hostetler is senior counsel for appellate matters in DOJ's Environment and Natural Resources Division. Since joining the Justice Department in 1996, he's been central to defending air pollution rules before the D.C. Circuit. Among the prominent regulations he's argued for are the Obama administration's standards to slash mercury emissions from power plants and EPA's first regulations to cut greenhouse gas emissions from cars. Before joining the Justice Department, Hostetler was an associate at Crowell & Moring.
Rave is another veteran DOJ attorney who's defended everything from the George W. Bush administration's Clean Air Interstate Rule to the Obama administration's air toxics standards for boilers. Before joining the agency in 1998, he was an associate at Piper & Marbury.
Berman scored a major victory already this year when the D.C. Circuit shot down the attempt by states and industry to halt the administration's Clean Power Plan before it was finalized.
She went head to head with Harvard Law professor Laurence Tribeduring those oral arguments, calling Tribe's assertions "flat-out wrong." The court ultimately sided with the administration, refusing to block the rule before it went final. Since joining DOJ in 2009, she's also helped to defend other EPA climate rules and the agency's air toxics rule for power plants.
She worked previously as an associate at Shearman & Sterling LLP and as an adjunct professor at Howard University School of Law.EPA's enviro, industry backers
Among the Obama administration's nongovernmental backers are a coalition of green groups, renewable energy advocates and some utilities arguing that the climate rule won't cripple their industry.
One of the greens' leading strategists is David Doniger, director of the Natural Resources Defense Council's Climate and Clean Air Program. He worked on climate and air pollution issues in the Clinton EPA and represented NRDC in major climate change cases including the landmark Massachusetts v. EPA lawsuit where the Supreme Court ultimately ruled that greenhouse gases are subject to regulation under the Clean Air Act.
Helping to coordinate green groups' legal tactics is Sean Donahue, an appellate attorney who has represented environmentalists in major air pollution cases that have gone to the Supreme Court. He's a former Justice Department attorney who clerked for Justice Ruth Bader Ginsburg (when she was a D.C. Circuit judge) and former Justice John Paul Stevens.
Kevin Poloncarz, an attorney with Paul Hastings based in San Francisco, is representing a coalition of power companies supporting the agency. His clients include Calpine Corp., National Grid Generation LLC, Pacific Gas and Electric Co., and Southern California Edison Co. Those companies argued earlier this month that the effort to halt EPA's climate rule could hurt utilities investing to crack down on their greenhouse gas emissions.
Battle of Harvard profs
Two high-profile Harvard Law School professors have also jumped into the ring on opposite sides of the case.
Richard Lazarus, often referred to as the dean of environmental law, is representing two former Republican EPA administrators -- William Ruckelshaus and William Reilly -- who intervened in the lawsuit in support of EPA's climate rule. Lazarus also got involved during the pre-emptive strike against EPA's proposed rule, where he urged the court to dismiss the challenge to the draft rule.
And Tribe, a former mentor to Obama, is representing coal producer Peabody Energy Corp. in the case.
In Peabody's motion last month asking the court to halt the climate rule, Tribe argued that the regulation requires states to implement an "anti-consumer federal regulatory program" and illegally forces coal companies "to bear a burden that ought to be shared by all members of society."
Although Lazarus, the former EPA chiefs and Tribe aren't likely to be the central figures in the lawsuit, their prominence in the legal world will undoubtedly draw attention to their arguments.
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Enviros Release New Video of Natural Gas Leak
Dec 24, 2015 | E&E Greenwire
By Joby Warrick
A plume of invisible methane rises above Los Angeles in new infrared video obtained by the Environmental Defense Fund.
More than 150 million pounds of methane have leaked from the largest natural gas storage facility on the West Coast since it was first detected more than two months ago.
Some 1,700 homes and two schools near Aliso Canyon have been evacuated as an invisible plume of gas rises from the facility owned by Southern California Gas Co. at a rate of up to 110,000 pounds per hour.
Environmentalists say the leak is the biggest single methane producer in California, releasing emissions equivalent to six coal-fired power plants or 7 million cars.
"It is one of the biggest leaks we've ever seen reported," said Tim O'Connor, EDF's California climate director. "It is coming out with force, in incredible volumes. And it is absolutely uncontained."
Southern California Gas Co. believes a failed well casing caused the pressurized gas to seep to the surface, but it has been unable to plug it.
The massive leak comes as the Obama administration battles for stricter regulations on methane emissions and California Gov. Jerry Brown (D) seeks to implement the nation's strictest emissions standards (ClimateWire, Dec. 22).
"Even large leaks can be hard to find if they occur away from populated areas," said Adam Brandt, an assistant professor at Stanford University's Stanford Woods Institute for the Environment. "One important step forward for sustainability will be to design ways to quickly detect and fix these large leaks soon after they happen".
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Industry Innovation, Not Costly Regulations, Will Reduce Methane Emissions
Dec 24, 2015 | The Hill - Congress Blog
By Jack Rafuse, Ph.D.
According to the Environmental Protection Agency, America’s natural gas industry has cut methane emissions by 11 percent in the past decade. Methane emissions from hydraulically fractured natural gas wells are down 79 percent in that period. Further, greenhouse gas pollution, which had been rising by about 2.4 percent per year, slowed in 2014 and actually declined in 2015 according to a study published last week in the journal, Nature Climate Change.
Despite those facts and the progress they represent, EPA has decided to implement more burdensome government regulations on the oil and gas industry.
The EPA wants regulations to drive methane emissions down 40 percent by 2025. This duplicative, costly regulation will prove very damaging to an oil and gas sector already struggling with plummeting prices. This is regulation “because I can,” rather than “because it’s logical or needed.”
In pressing for these regulations, the EPA seems to be ignoring the facts. US carbon emissions have been fallen an average of 1.4 percent per year for most of the past decade. Western Europe’s emissions are following the same path. Even China’s carbon pollution is down by nearly 4 percent. All these changes took place as the world economy has been improving.
Further, EPA is either ignoring -- or may not understand -- how important the energy industry is to our country. We all know oil and gas provides fuel for our cars, homes, and businesses. Fewer people know that oil and gas provide raw materials for many American businesses. But many in EPA and out, may not realize the sector provides 9.8 million jobs and represents a direct eight percent of the nation’s economy.
A recent NERA Economic Consulting study commissioned by the American Council on Capital Formation found major flaws in the EPA’s rationale for its new rule. It concluded that EPA’s claimed benefits under the new rule could lead to net costs, instead of net benefits.
The oil and gas industry has the strongest record on greenhouse gas emissions in the world. It leads in technological advancements, something Congress and EPA often overlook. U.S. companies have been at the forefront of efforts to improve the environmental footprint from the well to the marketplace.
In recent years, oil and gas production has dramatically increased due to new discoveries and technological advances. At the same time, methane emissions have continued to decline. As the industry continues its rapid pace of innovation, these advances will continue – if the regulators stay out the way.
It’s hard to innovate when federal regulators decide they know what’s best. Yet the EPA pressed its analysis and proposed rule without vigorous scientific peer review. Any regulation this costly to the nation, with this many more questions than answers and with more “I can” than “I should” needs – at a minimum – a much more thorough vetting.
But the Agency moved with little warning and with all the haste it could muster in hopes of winning some plaudits at the French Global Warming sessions. The comment period on the EPA’s rule is now closed – it’s all up to the bureaucracy to decide how to proceed with a proposed rule that is clearly and blatantly regulatory overreach.
When an industry initiates and carries out actions that clean the environment economically, the nation benefits and so does the EPA. It should recognize those benefits and seek to avoid excessive costs and bureaucratization. This regulatory “policy” is unnecessary, excessive the wrongheaded. Why not stand aside and let innovation succeed?
Rafuse is a former White House energy adviser and current principal of the Rafuse Organization, which advises on energy, international trade and national security.
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Arctic Study Underscores How Little is Known About Methane Emissions
Dec 24, 2015 | E&E Climatewire
By Gayathri Vaidyanathan
The Arctic tundra is releasing more methane, a potent greenhouse gas, during wintertime than scientists previously thought.
The region could be emitting an estimated 12 teragrams of methane, or 6 percent of the planet's total emissions from wetlands, during cold months. The findings, published this week in the Proceedings of the National Academy of Sciences, are counterintuitive.
Scientists had previously assumed that, as the top layers of soil, called the active layer, refreezes in the wintertime, this would hinder bacteria that chew up organic matter and emit methane.
But the study finds that the active layer does not freeze all at once. A section of soil remains unfrozen well into winter months, sometimes until January, and methanogenic bacteria there remain active, said Donatella Zona, an ecologist at the University of Sheffield in the United Kingdom and the lead author of the study. About half the region's methane is emitted during cold months.
"Now that we know how important the winter is to the methane budget, we are working to determine the long-term trends in greenhouse gas emissions from tundra and their sensitivity to winter warming," said Steven Wofsy, an ecologist at Harvard University and a co-author of the study, in a statement.
The finding illustrates just how little scientists know about our planet's methane budget. The greenhouse gas, which is released during fossil fuel extraction, from wetlands and biomass burning, is 86 times as warming as carbon dioxide on a 20-year time scale.
Yet, there are very few long-term records of the local concentrations of methane in the atmosphere. The National Oceanic and Atmospheric Administration's global monitoring division, which does the most comprehensive atmospheric measurements in the world, has not been adequately funded by the federal government since the early 2000s, said James White, director of the Institute of Arctic and Alpine Research at the University of Colorado. He spoke at the American Geophysical Union (AGU) meeting in San Francisco last week.
"Is our national network commensurate with the problem? I think the answer is a resounding no," he said.
Methane on the rise
Concern about methane's impacts on climate has mounted in recent years. Historical recordsshow that methane levels in the atmosphere remained roughly constant over the current Holocene epoch, until humans began industrializing. Between the 1980s and 2000, levels of methane in the atmosphere rose by 12 parts per billion per year. Then, in the early 2000s, the rise abruptly stopped.
Scientists launched dozens of studies to find out why, but before they could, methane emissions began growing again in 2007. Methane levels are now rising by 6 ppb every year.
This has left scientists scratching their heads about the global methane cycle and without the resources to ramp up long-term measurements and pinpoint the origins of the recent rise. Zona and her colleagues, who operate five ground-based methane measuring towers in the middle of nowhere in Alaska's North Slope, have funding till 2016.
"The main problem of science is that you come in, measure something and find something important, and then your funding agency says, 'Great! You found this, now let us do something else,'" Zona said in a phone interview.
Wintertime Arctic methane releases could, theoretically speaking, be at least a partial contributor to the rising methane levels, but it is impossible to say without long-term data.
A natural gas connection?
White at the University of Colorado and his NOAA colleagues have been trying to decode the causes of the global methane rise. A number of events could have set it off. Since 2007, shale gas extraction has risen in the United States and methane has been leaking from various gas drilling paraphernalia. The Arctic has been warming rapidly with climate change, and some wetlands, big contributors of emissions, are getting wetter (ClimateWire, Nov. 19). White ran through the list of possibilities at AGU.
"Is this an increase in emissions from Arctic sources? Is this a change in the methane sink? Is this an increase in emissions related to fossil fuel extraction? Is this more of a methanogenic activity in wetter wetlands?" he asked.
Preliminary data, based on isotope analysis, suggests the recent increase may be due to increased microbial activity in wetlands, together with a slightly higher release during fossil fuel extraction. But there are large uncertainties in these results due to sparse data, White said.
He called on the community to make some noise and get more sampling systems in place.
"Frankly, unless we get out here and yell and scream and beat on the tables and whine like little kids that we want this, I don't know that we are going to get it," White said.
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Dec 24, 2015 | The Hill - Congress Blog
By Jillian Melchior
The Environmental Protection Agency has been very, very naughty this Christmas.
Lucky for the rogue agency, an especially boisterous December news cycle kept the EPA’s prolific misbehavior off the front pages. Nonetheless, the month saw several unrelated developments all involving unethical—and sometimes, possibly illegal—behavior at the EPA.
The first bombshell emerged on December 14, as the Government Accountability Office issued a report finding that the EPA had violated federal law by conducting a “covert propaganda” campaign in support of the Clean Water Rule.
Some background: In the spring of 2014, the EPA sought to “clarify” which waterways are subject to federal jurisdiction. No surprise, the EPA suddenly discovered it should have newfound control over millions of acres of private property.
This power-grab met immediate opposition from diverse corners, including homebuilders, family farmers, manufacturers and even golf courses, which feared an onslaught of permitting requirements, inspections and other hassles. By the summer of 2015, a whopping 27 states had decided to sue the EPA over the Clean Water Rule.
With such throaty protest doubtless in mind, the EPA launched an aggressive social-media campaign, using Twitter, Facebook, YouTube and even Thunderclap to promote the Clean Water Rule. In doing so, the GAO concluded, it had attempted to covertly influence public opinion, also using taxpayer dollars in a lobbying effort—even though federal law forbids agencies from engaging in such activity.
But that’s just one instance of the EPA’s questionable activity.
Another scandal has been brewing at the agency since August, when an EPA cleanup crew botched a job at Colorado’s Gold King mine, unleashing millions gallons of chemical-tainted water into the Animas River, causing it to turn bright yellow.
Already, a report by the Department of Interior suggests the EPA lied about its role in the disaster. The EPA initially claimed the blowout was “likely inevitable” – but ederal investigators reported in October that the agency knew beforehand about the risks of a mine cleanup and chose to rush forward anyway, ignoring recommended precautions.
Then, on Dec. 18, the House Committee on Natural Resources wrote a letter highlighting how “three EPA employees with close ties to the agency’s public response to the Gold King Mine spill” had interviewed key witnesses in early December, several weeks before the Inspector General planned to issue a report on the disaster.
The EPA used those interviews with key witnesses to issue an addendum document that it said could help “clarify any misunderstandings about the incident.”
The Committee did not appreciate such a story-spinning intrusion from the EPA. “Specifically,” the letter says, “the Committee is concerned the EPA’s interview did not follow best investigative practices and may have interfered with the OIG’s ongoing investigation.”
The EPA’s problems keep piling up, too. Just a day after the Committee’s letter—and still just one week after the GAO issued its unrelated report on EPA’s legal shortcomings-- the Wall Street Journal editorial page broke news of fresh EPA emails obtained by ninja public-records lawyer Chris Horner.
The most shocking discovery in the batch: Regulators and green lobbyists secretly worked together to write regulations specifically intended to drive coal-fired power plants out of business. An EPA official—who, incidentally, had once worked as lawyer for green groups—sought feedback on regulatory drafts from environmental groups, using his private email account for the exchange and never docketing the conversation.
As the Journal noted, this sneak partnership on regulation raises serious questions about whether the EPA violated both the Administrative Procedures Act and the Federal Advisory Committee Act, both of which govern collaboration between federal agencies and private special-interest groups.
Add it to the list.
There’s a bitter irony in the EPA’s eyebrow-raising actions, given how hell-bent it has been on strangling everyone else in red tape. As of last summer, the EPA had issued a mind-blowing 3,373 new regulations under the Obama administration, codifying them in a staggering 29,770 pages of new policies.
(That’s the equivalent of reading Stephanie Meyer’s Twilight more than 54 times. The jury’s still out on which is the more unpleasant experience.)
At the overzealous EPA, the rules apparently don’t apply. Taken together, the EPA’s December highlight reel shows an agency operating with wanton disregard for ethics, best practices, and even the law.
Melchior is a senior fellow at the Independent Women's Forum.
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EPA Finds 'Background' Ozone Rising But Unlikely To Hinder Meeting NAAQS
Dec 24, 2015 | Inside EPA
By Stuart Parker
EPA in a new white paper says that “background” ozone air pollution from sources beyond regulators’ control is slowly rising domestically and globally, but downplays concerns raised by some industry groups, GOP lawmakers and others that this will make it impossible for states to attain the agency’s recently tightened ozone standard.
The white paper tees up a host of issues for discussion on background ozone sources and how the naturally occurring pollution might affect meeting the ozone national ambient air quality standard (NAAQS). The paper will feature at an EPA-hosted workshop slated for Feb. 24-25 in Phoenix, AZ. The first day will be open to state and local air regulators, while the second will be open to all interested stakeholders, EPA says on its website.
“This paper discusses the issue of background ozone as part of the implementation of the 2015 ozone standards. The U.S. Environmental Protection Agency (EPA) is using this white paper to establish a common understanding and foundation for additional conversations on background ozone and to inform any further action by the Agency,” the paper says.
Critics of EPA’s Oct. 1 decision to tighten the 2008 ozone standard of 75 parts per billion (ppb) down to 70 ppb have argued that background ozone levels are close to the new limit, making attainment impossible. These EPA opponents say that background ozone is uncontrollable and therefore states have no options to meet the standard. States deemed out of attainment with a NAAQS can ultimately face the threat of EPA withholding highway funding.
In the paper, EPA defines U.S. background (USB) as any ozone formed from sources or processes other than U.S. man made emissions of nitrogen oxides (NOx), volatile organic compounds (VOC), methane, and carbon monoxide. The agency recognizes that others may define background differently, however.
EPA says that “Ambient data analyses have shown that mid-tropospheric [ozone] concentrations in remote areas, within the U.S. and globally, have been increasing over the past two decades at a rate of approximately 0.4 ppb/year within an overall uncertainty range of 0.1 to 0.7 ppb/year. Whether this trend continues is largely dependent upon global changes in emissions of methane, as well as changes in other man made [ozone] precursor emissions outside of the U.S., which are highly uncertain. Additionally, climate change has the potential to affect global background [ozone] levels via changes in temperatures, wildfire emissions, synoptic weather patterns and other factors."
While emissions of NOx -- a major ozone precursor, along with VOC -- are expected to continue to decline in the United States and Europe, “NOx emissions in East and South Asia, however, are expected to continue to increase.” Also, rising methane emissions globally contribute to ozone formation, but “aggressive climate change mitigation policy” can slow the rate of methane emissions, EPA says.
Ozone Decreases
Despite the rise in some USB domestically, the white paper says that measured ozone levels across the United States have generally declined, especially in the East, as U.S. NOx emissions continue to fall as a result of EPA policies and the broader switch from coal-fired power to natural gas, state sources have noted.
EPA says that non-background ozone is the dominant factor on days with high ozone levels in the United States. “Existing modeling analyses indicate that U.S. man made emission sources are generally the dominant contributor to the modeled exceedances of the 2015 [ozone] NAAQS, nationally and within individual regions across the country,” EPA says, noting that higher ozone days “generally have smaller fractional contributions from USB across all regions.”
EPA estimates that nationally, USB accounts for less than 35 percent of exceedances of its 70 ppb NAAQS. Rarely, however, the agency concedes that events such as wildfires or “intrusions” of ozone from the upper atmosphere can result in local ozone levels approaching or exceeding 70 ppb.
EPA predicts that Denver will be the only area in the West with ozone levels above 70 ppb by 2025, with the exception of California, which experiences persistently high ozone levels because of its unique topography. In California, the contribution of USB to total ozone is often around 50 percent, the agency says.
As a solution for fires or stratospheric intrusions, EPA touts its “exceptional events” policy that allows local air regulators to exclude air monitoring data gathered during such events from demonstrations of NAAQS attainment, in order to help states avoid the nonattainment status that requires them to impose strict pollution controls on industry to cut ozone. EPA’s critics say this status drives businesses away, hurting economies in such areas.
The agency has proposed to “streamline” the exceptional events policy, following criticism from state regulators that in its current guise the policy has been unevenly and slowly implemented by EPA’s regional offices. EPA has taken too long to approve requests to exclude data under the policy, critics say.
Environmentalists are already warning, however, that the streamlining process -- which simplifies the criteria states must meet in such circumstances -- risks undermining the health-protectiveness of the NAAQS.
In the white paper, the agency also says that states can propose small nonattainment areas at “locations exceeding the 70 ppb standard where there are no or few nearby permanent sources of ozone precursors, or where nearby sources are shown to be unlikely contributors on days with high” ozone.
Further, the agency says states may use a “rural transport area” exemption for areas monitoring high ozone but which lack any sources of ozone-forming emissions that may be controlled.
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District Courts Urged To Block Appellate Review Of CWA Coal Ash Lawsuits
Dec 24, 2015 | Inside EPA
By David LaRoss
Environmentalists are urging federal district courts to reject energy companies' bid for a quick appellate ruling on whether the Clean Water Act (CWA) regulates pollution from coal ash disposal sites that travels through groundwater to protected surface waters, saying the requests represent an attempt to delay a ruling on the merits of the issue.
In recent briefs filed with federal courts in Virginia and North Carolina, advocates say the court should begin fact-finding on alleged coal ash water contamination from power plants owned by Dominion Virginia Power and Duke Energy, respectively, rather than allowing interlocutory appeals. They argue neither appeal should move forward because it would not resolve the suit even if the power companies win.
“Duke’s request is yet another delay tactic in a long history of attempts to frustrate citizen enforcement of the Clean Water Act . . . certification of an interlocutory appeal would only create a piecemeal series of appeals that would complicate and further prolong this litigation,” the North Carolina plaintiffs argue in a Dec. 21 briefopposing an early appeal in Yadkin Riverkeeper, et al., v. Duke Energy, dealing with alleged contamination from Duke's Rowan County, NC, facility.
Duke is seeking permission from the U.S. District Court for the Middle District of North Carolina to ask the U.S. Court of Appeals for the 4th Circuit to overturn the district judge's decision that it can be held liable under the CWA for pollution releases to groundwater that ultimately reach protected waters. Duke notes that the water law explicitly does not cover groundwater, and says liability on this point is a question that has divided lower courts.
District Judge Loretta C. Biggs held in an Oct. 22 order in the Rowan County fight that if contaminants from a Duke coal ash impoundment are traveling through groundwater to surface waters protected by the CWA, that constitutes a violation of the water law.
Duke is hoping to appeal that order to the 4th Circuit before a final ruling on environmental harms from the alleged leaks. But in order for the company to do so, Biggs must issue an order certifying an interlocutory appeal -- the goal of Duke's pending motion.
Similarly, Dominion Virginia Power is hoping to win 4th Circuit review of a Nov. 6 order from Judge Raymond A. Jackson, of the U.S. District Court for the Eastern District of Virginia, that cited Biggs' ruling to allow environmentalists to continue pressing a CWA suit over groundwater releases, Sierra Club, et al. v. Dominion Virginia Power.
There, Dominion filed a Dec. 11 motion seeking certification for interlocutory appeal. It argues that the 4th Circuit should take up the CWA groundwater question quickly because “The difference of opinion on this issue -- both among district courts within the Fourth Circuit and nationwide -- continues to grow.”
Pending Litigation
In both cases, environmentalists are arguing that certification would be improper in part because Duke and Dominion would still be liable for other violations even if they win on the groundwater question.
Under 4th Circuit precedent, an interlocutory appeal is only proper when it presents a “narrow question of pure law whose resolution will be completely dispositive of the litigation, either as a legal or practical matter, whichever way it goes” and the question represents a “substantial difference of opinion” among courts, theYadkin advocates say.
They continue that since the lower court case can proceed even if Duke is not liable for groundwater releases, or under a related argument over whether the releases trigger the “removed services” provisions of Duke's CWA permit, the case should not qualify for interlocutory appeal. Since the case would continue regardless of the 4th Circuit's decision, “certification would only prolong the course of this litigation, furthering Duke’s delay strategies throughout this case,” the brief says.
Similarly, Sierra Club and its allies say in a Dec. 23 brief that even if the 4th Circuit strikes down their groundwater claims they would continue prosecuting alleged CWA permit violations at Dominion's Chesapeake, VA, power plant.
The environmentalists also seek to rebut the companies' claim that there is a conflict among courts on whether groundwater contamination is regulated by the CWA when the pollutants released ultimately affect jurisdictional surface waters. They say in their new briefs that many of the cases Duke and Dominion cited as blocking CWA suits over pollution carried through groundwater to surface water were actually discussing CWA regulation of groundwater itself.
“In fact, contrary to Dominion’s assertion, the vast majority of courts are in agreement with this Court’s ruling that the nature of the allegations here -- of a direct hydrological connection between the groundwater discharges and the surrounding surface waters -- states a claim under the CWA,” Sierra Club's brief says.
The Yadkin plaintiffs add that in their case Duke cited no conflicting court rulings on the “removed services” permit issue, meaning that even if the groundwater question is worth reviewing through an interlocutory appeal there is no dispute to resolve on the latter issue.
“Counsel’s disagreement with the Court is simply not reason enough to grant an interlocutory appeal,” the brief says.
In a separate brief, the North Carolina groups also oppose Duke's request to stay the case pending resolution of the interlocutory appeal motion, arguing that Duke and state regulators have long sought to delay resolution of claims about groundwater contamination in Rowan County. Since there is no pressing danger to Duke from allowing the case to proceed, there is no reason for a stay, the plaintiffs claim.
“The sole harm that Duke claims it will experience in the absence of a stay is the burden on Duke’s time and resources if the case is allowed to proceed. Yet these are exactly the types of complaints that courts have repeatedly held are inadequate to support a stay,” the brief says.
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EPA Struggles to Ditch Contentious Rule's Catchy Nickname
Dec 24, 2015 | E&E Greenwire
By Tiffany Stecker
As the 92nd Congress ironed out the Clean Water Act amendments in 1972, lawmakers were unhappy with a well-worn term for resources deserving federal protection, "navigable waters."
So House and Senate negotiators cooked up "navigable waters of the United States."
"This new definition clearly encompasses all water bodies, including mainstreams and their tributaries, for water quality purposes," one of the bill's architects, Michigan Democrat John Dingell, said then on the House floor.
And when the Obama administration released new rules last year for defining what waterways and wetlands get Clean Water Act protection, U.S. EPA and the Army Corps of Engineers turned to the old reliable, "Waters of the United States," which quickly got turned into an acronym, WOTUS.
WOTUS had a ring to it, echoing POTUS (president of the U.S.), FLOTUS (first lady of the U.S.) and SCOTUS (Supreme Court of the U.S.).
But the hot-button rule's many opponents used the rule's name as a weapon, saying it revealed the administration's true motive was regulating all waters of the United States.
"It resonates in many parts of the country as something really, really awful," said Pat Parenteau, a Vermont Law School professor.
EPA spokeswoman Monica Lee said, "It's a scare tactic used by those looking to politicize the issue of providing clean water to all Americans."
So EPA is asking the media to forget WOTUS and call the regulation the Clean Water Rule.
"EPA and the Army, the two agencies responsible for writing and implementing the rule, call it the Clean Water Rule and have done so for almost a year and a half," Lee said in an email. "It's the name we use on our websites and how it's referred to in the Federal Register. We are updating the Clean Water Act with a rule, hence the name, Clean Water Rule. It's as simple as that."
The rule's opponents who feasted on WOTUS are also taking aim at "Clean Water Rule."
The American Farm Bureau Federation's Don Parrish, for one, said Clean Water Rule represents an attempt to infuse politics into what should have been a technical matter.
"Rulemaking is supposed to be as dry as Melba toast," Parrish said. "It's supposed to be the federal government taking account in a balanced fashion those who are in support of the rule and those that are opposed to the rule."
Brent Fewell, a partner at the law firm Troutman Sanders LLP, also objects to the name Clean Water Rule, which he says promotes the idea that a regulation alone will lead to clean water.
"To suggest that ... clean water is only protected by federal rules is somewhat dismissive" of state rules that regulate water quality, said Fewell, who served as deputy assistant administrator in EPA's Office of Water under President George W. Bush.
'We weren't crystal-clear'
When EPA rolled out its draft Clean Water Act rulemaking in March 2014, it was called "Definition of Waters of the United States under the Clean Water Act."
And the agency released the final rule in May as "Clean Water Rule: Definition of Waters of the United States Under the Clean Water Act."
EPA Administrator Gina McCarthy has lamented that the agency didn't simply use the title "Clean Water Rule" from day one.
"I really wish we had done a better job of rolling out our proposed Clean Water Rule," McCarthy told the National Farmers Union at the group's annual meeting in Wichita, Kan., before the regulation became final this year.
"I'm really concerned that we weren't crystal-clear, out of the gate, not just about what we intended to do, but about what we weren't intending to do, because it left all kinds of room for people to wonder not just about what the words said but about what we were trying to accomplish" (E&ENews PM, March 16).
The names now used for the rule offer different perspectives: "Waters of the U.S." refers to areas that would get regulatory oversight, while "Clean Water Rule" points to what the rule would achieve.
Jon Devine, a senior attorney with the Natural Resources Defense Council, said he has never referred to the rule as WOTUS, preferring "Clean Water Protection Rule."
"Our focus has consistently been on the important benefits the rule will provide," Devine said. "In that sense, it hasn't been hard at all" to use Clean Water Rule.
Spotlighting "clean water" is a smart move for EPA, said David Konisky, an associate professor of public policy at Indiana University's School of Public and Environmental Affairs.
Clean water consistently ranks as one of the public's top environmental concerns, Konisky said. A Gallup poll in March, for example, showed drinking water contamination and the pollution of rivers, lakes and reservoirs were the top environmental concerns for Americans, with 55 percent and 47 percent of those surveyed saying they worry about those two issues.
"This is going to address the pollution problem that people tend to worry about," Konisky said of Clean Water Rule.
But EPA's insistence on Clean Water Rule may be too little, too late, he said.
After a wave of litigation following the release of the final rule, a North Dakota federal judge issued an injunction to stop the rule in 13 states in August. Other district courts where lawsuits were filed either have ruled that they do not have jurisdiction to hear the issue or are waiting for the 6th U.S. Circuit Court of Appeals to decide whether the contentious rule should head straight to the appeals court (Greenwire, Dec. 7).
"The rule has already been finalized, it's being litigated," Konisky said. "I'm not sure how changing how we talk about it will change the politics of the rule itself."
Clean Power Plan parallels
EPA has been under fire for promoting the rule, using social media to engage a public that would not necessarily carry a high interest in defining an arcane legal term. Last week, the Government Accountability Office said EPA had violated lobbying laws in promoting the regulation (E&ENews PM, Dec. 14).
NRDC was one of the organizations that EPA relied on to promote the benefits of the rule, according to GAO.
"I think it's got a lot to do with politics," NRDC's Devine said. "It gives cover to those who want to simultaneously oppose the Clean Water Rule and give lip service to clean water. That's why you'll commonly hear opponents say something like, 'I'm all for clean water, but not this "WOTUS" rule,' while doing absolutely nothing to actually protect clean water."
EPA's unveiling of the moniker Clean Water Rule coincided last year with its use of a similar name for its landmark rule for curbing greenhouse gas emissions from power plants. The Clean Power Plan, unveiled in June 2014, also has a wonky past. It was called the Section 111(d) Rule, after the Clean Air Act provision that EPA believes gives the agency the authority to regulate greenhouse gas emissions from existing sources.
But while "Clean Power Plan" is almost universally adopted by both backers and challengers of the rule, that hasn't been the case for the water rule.
"Unlike the climate regulations, I don't think there's widespread awareness across the public" about the water rule, Konisky said.
President Obama's personal promotion of the Clean Power Plan played a major role as he mentioned the rule in speeches and interviews leading up to the landmark U.N. climate conference in Paris this month.
There are more neutral -- if less catchy -- ways to refer to the water rule. Fewell of Troutman Sanders would prefer Clean Water Act Rule to Clean Water Rule. The fairest, more objective characterization would be to call it the "jurisdictional rule," law professor Parenteau said, as it defines where the federal government can regulate.
But ultimately, Parenteau said, the rule is EPA's baby and the agency should pick the name.
"The rule is [EPA's] rule, and that's what it should be referred to," he said.
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Energy Efficiency Benefits Trickle Up in Structures, Study Finds
Dec 24, 2015 | E&E Climatewire
By Umair Irfan
Insulation, double-glazed windows and smart thermostats have benefits that accrue to landlords, even if they're not paying energy bills, according to researchers.
In a study published last month in the real estate issue of the Journal of Portfolio Management, authors reported that buildings constructed to minimize energy use have higher occupancy rates, command higher rents and have happier tenants.
The built environment is an important element in fighting climate change. Inside industrial and business buildings, the United States generates 82 percent of its gross domestic product. Buildings also account for about 40 percent of overall energy use.
Taking emissions down around the world will require homes, offices, stores and factories to use less energy. Saving energy also saves money, and these effects ripple through the real estate sector, even if the people using a space don't own it.
While efficiency upgrades might be an easier sell for a homeowner who will recoup his or her investment directly, the business case is a little more difficult for operators of larger building spaces (ClimateWire, March 13, 2012). Often, tenants pay their own utility bills, so efficiency investments during construction need to yield dividends in other ways for landlords.
"We would hope that buildings that are labeled as energy efficient would use less energy, but there are other benefits, as well," said Avis Devine, an assistant professor in real estate and housing at the University of Guelph in Canada.
Devine and her co-author, Nils Kok of the Maastricht University in the Netherlands, looked at 10 years of real estate data from 148 buildings in Canada and 143 buildings in the United States.
The buildings spanned 58 million square feet and received sustainability certificates under programs like the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED), the U.S. Department of Energy's Energy Star and the Canadian Building Owners and Manufacturers Association's BOMA BEST.
The data set, from 2004 to 2013, followed the boom and bust of the real estate market. Researchers examined financial documents, tenant surveys and resource consumption to see what trends would emerge.
"It's difficult to get your hands on that level of data," Devine said.
The results showed that green buildings generally draw higher rents. LEED certification created a 10.2 percent premium. However, BOMA BEST-certified buildings had 1.2 percent lower rents. In the United States, efficient buildings had a 9.5 percent higher occupancy rate, while Canadian buildings with sustainability certificates had an 18.5 percent higher occupancy rate compared with uncertified structures.
Green buildings also kept their occupants more content, with surveys showing about 4 percent higher satisfaction with green buildings in general. BOMA BEST buildings resulted in 20 percent higher satisfaction, and LEED-certified buildings yielded 10 percent higher scores than conventional structures.
"Happy tenants are more likely to re-lease," Devine said. "The re-leasing issue has tremendous financial implications."
Switching between tenants often requires a building owner to spend money to modify the space, particularly for commercial establishments. During the time it takes to make the changes, the space is vacant, generating no revenue. Keeping steady tenants stands to save operators money over the long run.
In addition, Devine said happier tenants put in fewer calls for maintenance and repairs.
Satisfaction with efficient buildings stems in part from comfort. Smarter structures tune lighting and temperature to occupants, which minimizes waste while keeping office workers happy. Many buildings built in past generations were optimized to a blanket standard, which left many occupants out in the cold while wasting energy (ClimateWire, Aug. 4).
Adopting green building standards is voluntary in the United States and Canada, driven largely by demand, unlike other countries that mandate tough efficiency codes.
"In North America, we tend to be more an 'advancement through buy-in' sort of environment instead of top-down, like in other parts of the world," Devine said.
While this study looks at new construction, the bigger challenge will be making the structures already standing more efficient. Much of the current crop now will be around for decades to come, so retrofits will be an important part of how nations address climate change.
It may also be better for the environment to throw a lifeline to old towers and complexes instead of knocking them down to build new ones.
"I always tell my students, 'The most sustainable building is the one that's already built,'" Devine said.
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