Preview Newsletter
ACC PM 12/28/15
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Microbeads, Marine Debris, Regulation and the Precautionary Principle
Dec 28, 2015 | Huffington Post
By Steven Cohen
A small, one could say, micro-sized miracle took place earlier this month as the United States Congress enacted the Microbead Free Waters Act of 2015. This legislation requires that manufacturers remove the beads, largely used in cosmetics, from their products by July 2017. -
4 Ways To Protect Your Skin From Winter Weather
Dec 28, 2015 | Environmental Working Group
By Megan Boyle
It may not feel like winter right now, but we know that won’t last. It will get cold outside – and our skin will sure know it. Dropping temperatures and outdoor fun mean dry skin, cracked lips and brittle hair for the whole family. Heated homes, schools and office buildings make matters worse. We slather on moisturizing creams and lotions for relief, but most of these products are loaded with chemicals. Some of them are known to be harmful; many are untested and essentially unregulated. -
Canadian Railroads on Track with Greenhouse Gas Emission Reduction, RAC Report Says
Dec 28, 2015 | Progressive Railroading
Investments in efficient locomotives and other fuel-management strategies appear to be paying off for Canadian railroads, which are "well positioned" to meet their greenhouse gas (GHG) emission reduction targets, according to a new report released by theRailway Association of Canada (RAC). -
2016 Will Accelerate Environmental Progress. Here are 5 Reasons Why.
Dec 28, 2015 | Environmental Defense Fund
By Fred Krupp
2015 was a breakthrough year for our environment – one of the most important in decades. The nations of the world agreed to a climate deal that finally gives us a chance to turn the corner toward safety. America put in place the first-ever limits on carbon pollution from its largest source, power plants. And the Senate passed sweeping bipartisan legislation that promises to fix our chemical safety system, which has been broken for 40 years. -
Your Guide to the Legal Fight Over Obama’s Climate Legacy
Dec 28, 2015 | Politico Pro
By Alex Guillen
The lawsuits over EPA’s landmark power plant carbon rules are about to kick into high gear, a legal fight to determine the fate of President Barack Obama’s climate legacy as he enters his final year in office. -
District Court Dismisses TRI Oil & Gas Case
Dec 28, 2015 | Inside EPA
The U.S. District Court for the District of Columbia has dismissed litigation at the request of environmentalists and EPA following the agency's decision in October to launch a rulemaking to add natural gas processing plants to the industry sectors required to report their chemical releases to EPA's Toxics Release Inventory (TRI). -
SoCal Gas Pinpoints the Site of a Leaking Well Near Porter Ranch
Dec 28, 2015 | LA Times
By Louis Sahagun
Southern California Gas Co. officials said Sunday they have pinpointed the location of a leaking natural gas injection well that has displaced thousands of residents in the upscale San Fernando Valley community of Porter Ranch. -
EPA Planning New RMP Requirements For Facility Audits And Disclosure
Dec 28, 2015 | Inside EPA
By Dave Reynolds
EPA is planning to strengthen its industrial facility accident prevention program with new requirements for facilities to face independent audits, conduct hazard analysis, and share information with emergency planners and the public, though industry representatives are urging the agency to limit costly new revisions, saying the current program is working. -
Go Live Elsewhere, We’re Cutting Carbon Here
Dec 28, 2015 | Wall Street Journal
By Allysia Finley
Earlier this month California Gov. Jerry Brown promised to cut greenhouse-gas emissions to 80% below 1990 levels by 2050. This goal will be nearly impossible to achieve with California’s current population, projected to grow by 30% over the next 35 years to 50 million.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News - There are no clips to report at this time.
Transportation News
Energy and Environment News
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Microbeads, Marine Debris, Regulation and the Precautionary Principle
Dec 28, 2015 | Huffington Post
By Steven Cohen
A small, one could say, micro-sized miracle took place earlier this month as the United States Congress enacted the Microbead Free Waters Act of 2015. This legislation requires that manufacturers remove the beads, largely used in cosmetics, from their products by July 2017. These beads are too small to be stopped by sewage treatment plants and, once in the waters, attract toxic chemicals and find their way into fish that eat them as if they were food. We in turn eat the fish and unknowingly ingest the toxics. The miracle is that the U.S. Congress passed a piece of environmental law. According to John Schwartz of the New York Times:
"A bill to protect the environment was introduced in the House in March. In early December, the House passed the bill. A week later, the Senate passed it as well, without changing a word and by unanimous consent, just before Congress left town on Friday. That is the strangely charmed life of the Microbead-Free Waters Act of 2015, which sailed through Congress in an age when most legislation plods."
As Mr. Schwartz' piece indicates, there were many good reasons that the law was passed. First, many large manufacturers were already dropping their use of the microbeads, having learned of its environmental impact. Second, a number of states had already enacted statewide bans and others were considering them. But the state laws were inconsistent and would make doing business difficult for cosmetic firms. National legislation was better for business. Business lobby groups and the cosmetics industry supported the national ban and so there was really no significant opposition to it from anywhere.
Microbeads are a small part of the much larger problem of marine debris. As more people consume more products that are made of substances that do not biodegrade easily, if at all, the volume of plastics that end up in our waterways continues to grow. The cost of cleaning up the oceans is impossible to quantify, and communities near the water are spending more and more money trying to clean their beaches and prevent trash from entering the water in the first place. Last spring I advised a group of Columbia students in our MPA in Environmental Science and Policy program who worked for our local environmental agencies to quantify the costs of preventing trash from entering the waterways in New York and New Jersey. The group surveyed municipalities along the Hudson-Raritan Estuary and learned that "these municipalities spend $59,063,285 dollars a year on marine debris waste management activities. This translates to a per capita cost of $6.16, and $75,407 per square mile."
The problem of marine debris is large and grows every day. Writing in National Geographic Laura Parker observes:
"The numbers are staggering: There are 5.25 trillion pieces of plastic debris in the ocean. Of that mass, 269,000 tons float on the surface, while some four billion plastic microfibers per square kilometer litter the deep sea. Scientists call these statistics the "wow factor" of ocean trash. The tallies, published last year in three separate scientific papers, are useful in red-flagging the scope of the problem for the public. But beyond the shock value, just how does adding up those rice-size fragments of plastic help solve the problem? Although scientists have known for decades about the accumulating mass of ocean debris and its deadly consequences for seabirds, fish, and marine animals, the science of sea trash is young and full of as-yet unsolved mysteries. Indeed, until scientists learn more about where ocean trash is, how densely plastic accumulates in different ocean ecosystems, and how it degrades, they can't really calculate the damage it's causing. There are still big, basic questions: As it degrades, do plastic toxins seep into the marine environment? If so, how and in what amounts?"
We know that there is a lot of junk in the ocean, but our knowledge of its environmental impact remains superficial and requires additional observation, data collection and analysis. We also need a new approach to introducing new technologies into economic production. Except for new drug and medical technologies which must be tested before they are allowed to be sold, other new technologies are introduced first and only regulated after damage is proven. The introduction of drugs conforms to the precautionary principle, the introduction of other technologies conform to what we could call the reactionary principle: react after the fact and only if the damage is beyond question.
We are all like the canary that used to be lowered into the mine to see if the air was poisoned. If the canary came back dead, the miners were not allowed into the mine. If it came back alive the miners could go to work. In a more crowded world with more and more technology being developed that can damage living fauna, flora and beings, we need to understand the full impact of the new technologies we are developing. This requires a deeper understanding of earth systems science and a deeper understanding of the main and side effects of all new technologies.
The critique of prior testing of new technology is that it would inhibit innovation and the development of new technologies. It might do that, and inhibiting damaging technologies would be a good thing. There are already a number of constraints on innovation such as unimaginative management, inadequate finance, and inadequate institutional capacity. Adding a regulatory hurdle would slow things down a bit, but it would also reduce the unanticipated consequences of new technologies. In the case of microbeads, sewage treatment plant operators could have commented before the technology was ever used, and the same substitutes that will now replace the beads could have been used from the start. How many other easily replaceable technologies are now in use and damaging the planet? We don't know and have no way of easily finding out.
While policy attention is focused on large, world-scale issues such as climate change, the planet continues to die the death of a thousand cuts. We ignore the day-to-day destruction that derives from an economic paradigm that has not yet internalized the need to assess the environmental impacts of new technologies and products. It is clear that the hunger for economic growth and wealth pushes business and governments to ignore environmental impacts that are considered an inevitable byproduct of development. But this fails to account for the costs that will inevitably be borne when the damage must be cleaned up. A more careful production process with pollution control technologies may cost more in the short run, but it saves money in the long run. And to the degree that businesses are convinced that they must adhere to environmental standards to avoid sanctions, they will push their engineers and production managers to develop innovative methods of controlling environmental impacts.
End of pipeline effluent standards and end of smokestack emission standards are necessary to ensure environmental quality. But so too is prior testing of new technologies and products before they are permitted into the marketplace. While some toxic substances degrade and pose little long-term harm to ecosystems, others are highly persistent and find their way up the food chain and can affect human health. The success of the microbead legislation is important and indicates that it is possible for the United States Congress to find common ground and ban unneeded toxics. The deeper change needed is far tougher and is a long way off. We need to spend more money to better understand the impact of technology on the natural environment and human health. And we must ensure that new technologies are only introduced after we have assessed their impact on the planet.
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4 Ways To Protect Your Skin From Winter Weather
Dec 28, 2015 | Environmental Working Group
By Megan Boyle
It may not feel like winter right now, but we know that won’t last.
It will get cold outside – and our skin will sure know it.
Dropping temperatures and outdoor fun mean dry skin, cracked lips and brittle hair for the whole family. Heated homes, schools and office buildings make matters worse.
We slather on moisturizing creams and lotions for relief, but most of these products are loaded with chemicals. Some of them are known to be harmful; many are untested and essentially unregulated.
Before stocking up this winter, check out these tips to protect your skin from the cold while minimizing your exposure to potentially harmful chemicals.
1. Choose healthy products
Lotion
Lotion is a cold-weather essential for exposed areas like our faces and hands. When you choose a lotion for yourself and your family, look for thick, creamy options – but skip ones with fragrance. The government doesn’t require companies to disclose the ingredients that give a product fragrance, so there’s no way to know what’s in there, which could include hormone disruptors, allergens and asthma triggers.
Apply lotion while your skin is moist and skip bubble bath, which dries skin. For children, people with sensitive or particularly dry skin, the best bet is to use natural oils such as coconut or canola instead of lotion.
Hair conditioner
When you’re shopping for a conditioner, avoid those that list propyl paraben or DMDM hydantoin on the label. These preservatives pose safety concerns.
When you rinse, leave a little product in your hair to provide added conditioning throughout the day.
Lip balm
We can’t avoid ingesting a bit of lip products when we talk, eat or drink, so it’s extra important to apply a healthy one. Try non-petroleum balms made from natural oils and avoid products that list retinyl palmitate or retinyl acetate on the label.
During the winter months, choose products that offer sun protection if you’re out in the snow or near water, but avoid any that list oxybenzone on the label.
Search more than 64,000 products in EWG’s Skin Deep database to find the right lotion, hair conditioner or lip balm for your family.
2. Wear sunscreen
Even when it’s cold outside, the sun still shines brightly. Although your risk of sunburn is lower in winter, the sun’s skin-damaging ultraviolet rays reflect off snow and water, increasing your exposure.
Wear protective clothing and apply sunscreens that list zinc oxide or titanium dioxide as the active ingredients; products with 3 percent avobenzone are the next best. Click here to learn more about staying safe in the sun and steer clear of these 11 worst sunscreens for kids.
3. Do it yourself
You can use common household oils to moisturize your skin, lips, hair and scalp. Popular natural ingredients include shea butter and coconut, argan, avocado, jojoba or almond oils. If you add essential oils for scent, use them sparingly. These botanical extracts can trigger allergic skin reactions in people with sensitive skin.
To condition your hair, try rinsing it with diluted apple cider vinegar and warm water after shampooing.
Be sure to test homemade products on a small patch of skin to check for allergic reactions. Since they’re made from perishable ingredients, they have a shorter shelf life than store-bought products, so discard them within a few months – or earlier if you notice changes to their consistency or scent.
4. Stay hydrated
Keep your skin healthy and hydrated from the inside by drinking plenty of water and eating nutritious, moisture-rich foods such as fruits and vegetables.
With naturally hydrated skin, you’ll need fewer products and you’ll use them less often, an effective way to save money and limit your family’s exposure to the complex mixture of ingredients in commercial body care products.
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Canadian Railroads on Track with Greenhouse Gas Emission Reduction, RAC Report Says
Dec 28, 2015 | Progressive Railroading
Investments in efficient locomotives and other fuel-management strategies appear to be paying off for Canadian railroads, which are "well positioned" to meet their greenhouse gas (GHG) emission reduction targets, according to a new report released by theRailway Association of Canada (RAC).
The "Locomotive Emissions Monitoring Program" report documents emissions of GHGs and criteria air contaminants (CAC) from locomotives operating in Canada between 2012 and 2013.
In 2013, GHG emissions from all railroad operations in Canada declined 1.6 percent from 2012, according to the report.
Since 1990, Canada's freight and passenger railroads have reduced their GHG emissions intensity by more than a third, RAC officials said in a press release.
"Investments in more efficient locomotives, among other fuel-management technologies and policies, have allowed Canada's railways to make substantial emissions reductions," said RAC President and Chief Executive Officer Michael Bourque. "Today's locomotives can haul a ton of goods almost 200 km on a single liter of fuel, and in doing so, remove more than 300 trucks from the road — limiting harmful emissions and reducing road congestion."
The latest report is the third to be released under a memorandum of understanding (MOU) between RAC and Transport Canada. The MOU encourages RAC's Class I, short line and intercity passenger railroad members to voluntarily cut their emissions intensity. -
2016 Will Accelerate Environmental Progress. Here are 5 Reasons Why.
Dec 28, 2015 | Environmental Defense Fund
By Fred Krupp
2015 was a breakthrough year for our environment – one of the most important in decades.
The nations of the world agreed to a climate deal that finally gives us a chance to turn the corner toward safety. America put in place the first-ever limits on carbon pollution from its largest source, power plants. And the Senate passed sweeping bipartisan legislation that promises to fix our chemical safety system, which has been broken for 40 years.
At Environmental Defense Fund, we’re proud to have played key roles in all of these breakthroughs.
Still, even with all that we accomplished, I expect 2016 to top the year now coming to an end.
The twin drivers of progress in the next 12 months will be ambition and accountability – two mutually dependent qualities the environmental movement must have to thrive.
Ambition without accountability is just rhetoric, and accountability without ambition is merely record keeping. Together, though, they are what made the recent Paris talks such a success, and they are how we’ll ratchet up global action in the year ahead.
Here’s why:
1. Paris set the tone
For the first time, the world got the message: Climate change is the race of our lives. And leaders responded with action on a global scale.
In support of the latest Conference of the Parties, or COP21, 187 countries covering almost 99 percent of global emissions submitted commitments to take action on climate.
The agreement reached in Paris doesn’t solve climate change, but it created a framework through which the world can take measurable, verifiable action to see emissions peak, stabilize and eventually decline.
And it requires countries to track progress and increase ambition over time, further improving the odds that we can keep warming below catastrophic levels.
In other words, Paris is the starter’s gun.
2. Markets are ramping up
The Paris agreement sent a powerful, immediate signal to global markets that the clean energy future is open for business. It’s a message markets are primed to receive: Emissions trading systems are already at work in more than 50 places that are home to nearly 1 billion people.
With the Paris framework in place, momentum for bottom-up, decentralized market-based policies will only increase – and at the core of such systems are transparency and integrity.
It’s a principle of economics that as participation grows, activity accelerates. We reach economies of scale, new investment is drawn in, and businesses come to depend on the new market tools.
3. Private sector is coming onboard
The corporate world is ready to play a larger role, too.
More than 100 savvy businesses ran an ad in The Wall Street Journal just before the Paris talks, supporting action to reduce United States emissions that achieve or exceed national commitments, “and increase ambition in the future.”
By pledging, these companies also invite us to hold them accountable.
4. Clean energy investments are rising
Domestically and internationally, 2015 was a breakthrough year for clean and efficient energy, and 2016 should see the amplification of smart policies and investments.
On the domestic front, the U.S. Department of Energy released a new standard to cut emissions from commercial air conditioners and furnaces. It’s expected to save more energy than any other standard the agency has issued so far.
The promise of clean energy is global, and another critical piece of the Paris agreement is that it invites the developing world to participate in the rising flow of clean energy investments.
Emerging economies such as China and India are expected to spend $2.7 trillion on renewable energy between 2015 and 2040, far outpacing industrialized nations.
Now all nations, rich and poor, will be able to show that these investments pay off.
5. Market solutions grow on land, at sea
The “no net loss” habitat standards the Obama administration announced in late 2015, and is set to ramp up in 2016, call for landscape-scale, market-based solutions that bring net benefits for wildlife on working lands.
At the same time, successes in the U.S. commercial fishing sector are expanding globally. Fishing rights management programs are transforming the industry, increasing prosperity in fishing communities and abundance in fish populations.
These two, ambitious initiatives are built on demonstrable results. Look for more progress in 2016 as they continue to expand.
2016: A year of opportunity
While we’re making extraordinary environmental gains, there is, of course, still much to be done.
We need to continue to work with government and industry partners to identify and mitigate methane leaks from the oil and gas sector. We know it can be done at low cost and have tremendous impact.
We also need to ensure that a strong bill to reform the Toxic Substances Control Act emerges from the House-Senate negotiations and is signed into law. Americans deserve to know their everyday products are safe to use.
The era of delay is over. We must be ambitious and hold our public officials, our business leaders, and ourselves accountable. We need smart, flexible solutions that can ratchet up environmental protection over time.
Ambition plus accountability accelerates progress.
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Your Guide to the Legal Fight Over Obama’s Climate Legacy
Dec 28, 2015 | Politico Pro
By Alex Guillen
The lawsuits over EPA’s landmark power plant carbon rules are about to kick into high gear, a legal fight to determine the fate of President Barack Obama’s climate legacy as he enters his final year in office.
You may know the difference between a FIP and a SIP, but when environmental attorneys start talking about Chevron, it’s not because they just filled up their car. BSER is not one of the robots in the new “Star Wars” movie. And Footnote 7 is not the hot new indie rock act playing the Black Cat.
Unless you’re a Clean Air Act lawyer, some of the legalese being bandied about can be confusing. Here is POLITICO’s quick reference guide to the most important concepts, court cases and people to know as you follow the Clean Power Plan litigation.
CLEAN AIR ACT SECTIONS
102(c) — This section says states cannot enter legally binding compacts without first getting congressional approval. Sen. Mitch McConnell last April raised the prospect of using that provision to prevent states from forming any trading agreements, but his argument never gained much traction. States are free to create formal trading agreements or to use existing ones, such as the Regional Greenhouse Gas Initiative. But those would not be legally binding because states could leave at any time. Any state that withdrew would have to show it could still hit its target or be subject to a federal plan from EPA.
111(b) — EPA used this section to write its carbon rule for new power plants, also known as the New Source Performance Standard or NSPS. It requires new and renovated facilities to use the “best system of emission reduction.” Critics say the rule effectively outlaws new coal plants by requiring expensive and unproven carbon capture systems. Because of the way the law is structured, if this rule is struck down, so too is the rule for existing plants.
111(d) — The Clean Power Plan, which governs existing plants, falls under this section of the law. It allows EPA to direct states to write plans to control nontoxic emissions not regulated elsewhere in the act. There are three big arguments against this rule. One, that another part of the Clean Air Act prohibits it. Two, that EPA should not be able to go “beyond the fenceline” of coal plants to require strategies like fuel shifting. And three, that there are several constitutional violations.
112 — This part of the Clean Air Act allows EPA to regulate major sources ofcertain hazardous air pollutants — like benzene, hexane and vinyl chloride — from major sources ranging from power plants and oil refineries to shipbuilders and spandex producers. Carbon dioxide, which does not directly harm human health but drives climate change, is not included on the list of hazardous air pollutants. EPA’s Mercury and Air Toxics Standard was written under this section.
TERMINOLOGY
112 Exclusion — The argument that EPA cannot regulate power plants’ carbon dioxide emissions under section 111(d) because it already regulates their mercury emissions under section 112. Section 111(d) lets EPA direct states to set emissions standards for “any existing source for any air pollutant” that is not otherwise regulated. But defining whether other regulations really trump the section is complicated by a drafting error when Congress updated the act in 1990.
Conflicting provisions from the House and Senate were both signed into law and became part of the Statutes at Large, which supersede the U.S. Code when there’s a conflict. Critics say EPA should not be able to regulate the same source of pollution twice, meaning the mercury rule for power plants trumps any carbon limits for the sector. EPA says its authority can survive under either conflicting provision and is asking the court for deference to proceed.
BSER — “Best system of emission reduction,” the phrase in Section 111(d) EPA has interpreted to allow it to regulate emissions beyond the fence line of coal and gas power plants. Critics often note that the statute requires EPA to set a standard that “has been adequately demonstrated.” The BSER requirement also applies to the new plant rule’s requirement for partial carbon capture.
Chevron deference — The doctrine that courts should defer to an agency’s interpretation of the law when two factors are present. First, the statute must be ambiguous. Second, the agency’s interpretation must be “based on a permissible construction of the statute” — i.e. not necessarily the best possible interpretation, but simply a reasonable one. The test was formalized in the 1984 Supreme Court case Chevron v. NRDC.
EGU — “Electric generating units,” aka power plants.
EM&V — “Evaluation, measurement and verification.” The protocols to prove that any given action — like efficiency programs or a carbon tax — really curbs emissions as much as expected.
Footnote 7 — A footnote in the Supreme Court’s 2011 ruling in AEP v. Connecticutproviding for an “exception” to EPA’s authority to regulate carbon dioxide from existing power plants: “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program … or the ‘hazardous air pollutants’ program, [Section 112].” Opponents argue that Footnote 7 indicates the Supreme Court would subscribe to the 112 Exclusion argument. The Obama administration points out that when the Supreme Court wrote the footnote, it had not been briefed on the competing House and Senate provisions and thus couldn’t fully address the issue.
Federal implementation plan — If a state implementation plan falls short in EPA’s judgment or if a state refuses to submit a plan, the federal government must step in and directly regulate via a federal implementation plan, or FIP. EPA is still working to finalize its Clean Power Plan FIP and is taking comment through Jan. 15. It plans to issue a final FIP by summer.
Office of the Law Revision Counsel — This nonpartisan division of the House is responsible for assembling the official U.S. Code. The OLRC has concluded that the House version of Section 111(d) should win out over the Senate version, a position that bolsters arguments against the Clean Power Plan. It has proposed formally codifying that into the Statutes at Large, an effort embraced by Republicans and opposed by Democrats and environmentalists.
State implementation plan — Many environmental laws rely on cooperative federalism to enforce regulations, under which states create implementation plans for approval by EPA, known as a state implementation plan, or SIP. States have until Sept. 6 to submit an initial plan or ask for an extension. EPA is asking states to show how they will hit emission-reduction targets by regulating coal-fired power plants, encouraging utilities to switch to gas or implementing policies to bring more renewable power online, among other strategies.
Trading-ready — In a nod to the difficulties of creating formal partnerships, EPA also gives states using rate-based plans the option of adopting a “trading-ready” approach under which individual power plants would be able to trade credits without a formal arrangement. Critics of the Clean Power Plan call this a backdoor attempt at creating a cap-and-trade program.
RELEVANT LEGAL CASES
AEP v. Connecticut, 2011 — This Supreme Court ruling reinforced the court’s view that EPA can regulate greenhouse gases, but it offered EPA no guidance on how to proceed. The case served as a sequel to Massachusetts v. EPA.
Delaware Department of Natural Resources & Environmental Control v. EPA, 2015 — In this ruling, the D.C. Circuit Court of Appeals tossed out part of an EPA emissions rule for backup generators because the agency hadn’t adequately consulted with FERC on grid reliability concerns. Whether EPA adequately consulted FERC on the Clean Power Plan will be among the issues raised in the new challenges.
King v. Burwell, 2015 — The Supreme Court raised questions of deference when itsided with the administration in a fight over Obamacare subsidies. EPA’s supporters were pleased that it used a broad reading of the Affordable Care Act to rule in the administration’s favor. But critics say the court should treat the Clean Power Plan differently, particularly since it is a regulation and not a law.
Massachusetts v. EPA, 2007 — The landmark Supreme Court ruling in which the court ruled that EPA has the authority to regulate greenhouse gases, and that it must do so if it concludes such gases are a threat (which EPA has). While it was a big win for environmentalists, the court offered little guidance on exactly how EPA could regulate, or to what extent.
Michigan v. EPA, 2015 — While this Supreme Court decision on the mercury rule did not directly touch on the Clean Power Plan, critics say it shows the court wants to keep EPA on a short leash. The justices dinged EPA for not considering costs before proceeding to regulate mercury. Justice Clarence Thomas filed a concurrence warning “we should be alarmed that [EPA] felt sufficiently emboldened” by previous deference from the court to think its mercury rule would be acceptable.
Murray v. EPA, 2015 — The suite of failed lawsuits before the D.C. Circuit Court of Appeals that challenged the proposed Clean Power Plan. A panel of three Republican-appointed judges tossed out the challenges as premature because the rule was not yet finalized. The judges offered no clues in their ruling as to how they would fall on the merits of the arguments; they will not necessarily be the ones to hear the challenge to the final rule.
Scialabba v. Cuellar de Osorio, 2014 — This Supreme Court ruling that upheld an immigration board’s interpretation of conflicting legal provisions could aid EPA’s defense against the 112 exclusion argument. But legal experts disagree over whether Chevron deference actually applies in cases of conflicting provisions as opposed to ambiguous provisions.
Utility Air Regulatory Group v. EPA, 2014 — Critics of the Clean Power Plan see this Supreme Court ruling as a warning shot across EPA’s bow, although the justices left in place EPA's authority to regulate the vast majority of sources. The opinion — which came just weeks after EPA proposed its carbon rule — said the court is skeptical “when an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.’” Congress must be clear when it wants EPA to take actions with major impacts on the economy, the court said.
PEOPLE
Cruden, John — Assistant attorney general for the Justice Department’s Environment and Natural Resources Division. Cruden, who will help shape EPA’s legal defense, was previously president of the Environmental Law Institute. He has called the Clean Power Plan lawsuits the "Super Bowl of climate change litigation."
Kennedy, Anthony — The Supreme Court’s perennial swing vote and potentially the justice who will decide whether the Clean Power Plan lives or dies. On the one hand, Kennedy joined the court’s liberal wing in 2007’s Massachusetts v. EPA. On the other hand, in 2014 he sided with the more conservative justices in UARG v. EPA.
Lin, Elbert — West Virginia’s solicitor general. Lin likely will argue in court for the state challengers; he represented West Virginia and other states last spring in the failed challenge to the proposed version of the rule. A Yale graduate, Lin once clerked for Supreme Court Justice Clarence Thomas.
Morrisey, Patrick — West Virginia attorney general and the lead AG challenging EPA’s Clean Power Plan. Morrisey, who declined to run for governor so he could run for re-election as attorney general next fall, argues that the rule will hurt his state especially by decreasing coal’s market share.
Tribe, Laurence — The Harvard constitutional law scholar and liberal icon who inflamed Democrats and environmentalists when he said the climate policies of President Barack Obama — his onetime mentee — amount to “burning the Constitution.” Working on retainer for coal producer Peabody Energy, Tribe has made several constitutional arguments against the rule. It’s unclear whether those will gain traction in court.
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District Court Dismisses TRI Oil & Gas Case
Dec 28, 2015 | Inside EPA
The U.S. District Court for the District of Columbia has dismissed litigation at the request of environmentalists and EPA following the agency's decision in October to launch a rulemaking to add natural gas processing plants to the industry sectors required to report their chemical releases to EPA's Toxics Release Inventory (TRI).
EPA's decision responds in part to a petition by the Environmental Integrity Project (EIP), but also rejects the group's efforts to expand the TRI rules to include oil and gas facilities and compressors. The agency agreed in an Oct. 22 response to the petition to begin a rulemaking to add natural gas processing plants to those sectors required to report releases to the TRI.
Environmentalists had petitioned EPA in 2012 to add oil and gas extraction to the inventory, and subsequently sued the agency earlier this year in EIP, et al. v. EPA, seeking to force a response to the petition. The groups argued that the recent advances in technology leading to widespread use of hydraulic fracturing have dramatically increased the number of facilities within the industry and the volume of releases.
"Due to inaction by the U.S. Environmental Protection Agency (EPA), the industry remains exempt from one of the nation's most basic toxic pollution reporting mechanisms: the [TRI]," the suit said.
But the plaintiffs and EPA Dec. 15 filed a joint stipulation to voluntarily dismiss the lawsuit, given EPA's recent response. The court on the same day issued a minute order accepting the stipulation and closed the case.
Under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), which established the toxics reporting program, EPA has the authority to initiate a rulemaking to subject facilities within an industry sector to TRI.
In its response, EPA says that it has determined that natural gas processors may be appropriate for addition to the scope of TRI, given that of the 517 processing plants identified in the lower 48 states as of 2012, the agency estimates that more than half would annually meet TRI reporting thresholds. EPA also flags chemicals listed under TRI that are used in processing, including hydrogen sulfide, benzene, toluene, ethylbenzene and xylene.
"With respect to the information factor, the addition of natural gas processing facilities to TRI would meaningfully increase the information available to the public and further the purposes of EPCRA [section] 313," it says.
But in the response, EPA rejected environmentalists' arguments that concentrations of oil and gas wells would fit within the statutory definition of "facility" under EPCRA.
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SoCal Gas Pinpoints the Site of a Leaking Well Near Porter Ranch
Dec 28, 2015 | LA Times
By Louis Sahagun
Southern California Gas Co. officials said Sunday they have pinpointed the location of a leaking natural gas injection well that has displaced thousands of residents in the upscale San Fernando Valley community of Porter Ranch.
Workers were continuing to drill a relief well and had reached a depth of 3,800 feet about midnight Saturday when they discovered the site of the target well using a magnetic ranging tool, said Anne Silva, a spokeswoman for SoCal Gas. The well extends more than 8,000 feet below the surface.
The company is still "not sure of the exact location of the leak," Silva said, "but suspects it is within a shallow level — within the first several hundred feet of the 8,700-foot well."
With the goal of stopping the leak as quickly as possible, the company is creating a secondary relief well as backup to its ongoing drilling operation.
Drilling of the secondary well is slated to begin in January, Silva said, "and should take about three to four months."
But Silva said Saturday's discovery will probably not affect the timeline for stopping emissions.
The gas company has already told state regulators that it would complete drilling of the primary relief well by Feb. 24, but representatives said in an interview last week that repairing the leak could take until the end of March.
The well began spewing mostly methane gas Oct. 23. Silva described the failed well as "a 7-inch diameter steel pipeline that allows natural gas to be put into a naturally occurring underground storage field."
SoCal Gas said the only solution lies in relief wells being drilled to intercept and plug the damaged well.
The company is paying to relocate and house residents and pets sickened by fumes that health officials and independent experts say can cause headaches, nosebleeds, nausea and other short-term ailments but pose no long-term health risks.
Porter Ranch is a 30-year-old master-planned community of 30,000 people, schools, businesses, parks and hiking trails tucked beneath the Santa Susana Mountains at the northwestern tip of the San Fernando Valley.
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EPA Planning New RMP Requirements For Facility Audits And Disclosure
Dec 28, 2015 | Inside EPA
By Dave Reynolds
EPA is planning to strengthen its industrial facility accident prevention program with new requirements for facilities to face independent audits, conduct hazard analysis, and share information with emergency planners and the public, though industry representatives are urging the agency to limit costly new revisions, saying the current program is working.
EPA is expected to propose in March a rule revising its risk management plan (RMP) facility safety program. The agency is wrapping up a Small Business Advocacy Review of the rule's potential costs to small businesses and recently outlined priorities for the forthcoming proposal to industry officials who are advising that federal review. EPA on Dec. 21 sent the proposed rule for White House Office of Management & Budget pre-publication review.
In a Nov. 19 presentation to a “Small Business Advocacy Review Panel Outreach Meeting,” the agency details plans for revising RMP with changes to bolster existing requirements for facility audits and add new requirements for consideration of safer processes, as well as new standards to boost disclosure of facility data to first responders and the general public.
Most new requirements apply to facilities that pose a threat to the public in case of a release, which comprise the bulk of the roughly 12,000 RMP-covered facilities, and include refining, chemical manufacturing, energy production and water treatment plants.
According to the presentation, companies are calling for EPA to limit or eliminate certain requirements for third-party audits, incident investigations and safer alternatives analysis. Prior to the review, industry officials told EPA that more flexibility is needed in criteria for independent auditors, that root-cause analysis may not be necessary after every incident, and that reviews of safer alternatives should be limited or excluded since existing methods already reduce risk.
EPA's forthcoming proposed rule revising the RMP program is part of a broad federal effort to strengthen the safety and security of industrial facilities under President Obama's Executive Order (EO) 13650, which calls for improving coordination and communication between levels of government, and revising policies, rules and standards.
Obama issued the order Aug. 1, 2013, in the wake of an explosion in April of that year at a fertilizer facility in West, TX, that killed 15 people and injured 200 others. EPA had planned to propose revisions to RMP in September, though agency officials have recently said they are now targeting early 2016, with observers expecting a proposal in March.
Two industry sources say that EPA appears unlikely to include in the forthcoming proposal the addition of new chemicals, such as ammonium nitrate, to the RMP program, a change the agency floated in documents seeking public input on the rulemaking, and that Senate Democrats Barbara Boxer (CA) and Ed Markey (MA) have sought.
One industry source notes that EPA did not include plans to add new chemicals in the recent presentation to industry officials, while a second source says agency officials have indicated they are looking to the Occupational Safety & Health Administration to first consider that issue, and that EPA might consider adding chemicals in a future proposal.
“Any proposed regulations they may do next year should only be” from among those in the recent presentation, the first source says, noting that significant changes should be vetted during the review of rule's potential costs.
Safer Technologies
EPA's recent presentation also backs advocates' fears that the agency will not use authority under section 112(r) of the Clean Air Act to require facilities to use inherently safer technologies (IST) where feasible, though the presentation shows EPA is weighing a requirement for certain facilities to assess whether IST would improve safety.
A coalition of environmental, labor and public interest groups in July 2012 petitioned EPA to require facilities to use IST, such as alternative chemicals or process changes that reduce the likelihood or consequences of an attack. But EPA Administrator Gina McCarthy this fall told advocates the agency would not require IST as part of the RMP proposal.
A source with a public interest group tells Inside EPA that an EPA requirement for facilities to consider IST would be a step in the right direction, but that any facility analysis of safer alternatives should be reviewed for accuracy. And in order to ensure safety, the source says EPA should require facilities to implement IST measures where feasible.
EPA's recent presentation narrows an array of topics included in the agency's July 2014 request for information (RFI) on strengthening the RMP program, which currently requires facilities to report holdings of threshold levels of certain chemicals and to reduce the risk of their accidental release.
Last year, EPA took comment on the RFI that suggested potentially sweeping changes to the rule, ranging from covering new chemicals and requiring new process safety analysis and review of past near-accidents, to scrapping the RMP program in favor of a different approach.
The agency presentation says EPA has “identified priority elements from the RFI to include in the proposed rule.”
The presentation focuses on six topics that may be addressed in the forthcoming proposal: third-party audits; root-cause analysis after accidents or near misses; safer alternatives analysis; improved coordination with first responders; emergency response drills and information sharing.
EPA plans to strengthen an existing self-auditing requirement by requiring facilities that have had accidents to hire a third-party auditor rather than conduct an audit themselves, the presentation says. EPA would set qualifications to ensure third-party auditors are knowledgeable, experienced and impartial.
RMP currently requires companies to investigate catastrophic releases or incidents that could have caused such a release, but EPA is planning to strengthen that requirement by narrowing the definition of catastrophic release, and requiring the review to assess the root cause and consider changes that would prevent that cause from recurring.
Although not planning to propose that facilities file such “root cause” investigation reports with the agency, EPA is planning to require that facilities maintain records of the reviews for five years.
Noting that both EPA and U.S. Chemical Safety Board investigations have found IST could have prevented serious accidents, EPA plans to require that chemical and paper manufacturing facilities, as well as petroleum and coal products manufacturers analyze process changes that could reduce or eliminate hazards, and determine whether implementing the changes is feasible.
The agency presentation says the proposal will not require facilities “to implement any prescribed technology, however EPA is taking comment on whether implementation should be required.”
Emergency Plans
EPA is also seeking to bolster facilities' coordination with local emergency planners by clarifying that first responders may request facility emergency plans, and requiring most facilities to coordinate annually with local emergency officials.
Another priority proposal is a new requirement for facilities to practice their emergency response plans every five years, inviting local officials to participate, and to conduct a “table top” review of the plan in each intervening year.
EPA is also planning to strengthen requirements for sharing information with emergency responders and the general public. The agency plans to propose requirements for facilities to provide local emergency planning committees chemical hazard information, accident investigation reports, as well as information detailing any planned IST upgrades.
Facilities would have to provide the general public data on their chemical holdings and details on accidents during the last five years, as well as a summary of the facilities' emergency response programs. Data must be accessible, possibly through a website or file at a public library or other government building, according to the presentation.
While some public interest groups have argued that requiring disclosure of data showing how much damage an accident could cause outside of a facility would spur companies to switch to safer chemicals, EPA is continuing its current view that such off-site consequence data is a security risk that should not be released.
In the presentation, EPA says facilities should not disclose confidential, classified or sensitive information, including off-site consequence analysis data.
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Go Live Elsewhere, We’re Cutting Carbon Here
Dec 28, 2015 | Wall Street Journal
By Allysia Finley
Earlier this month California Gov. Jerry Brown promised to cut greenhouse-gas emissions to 80% below 1990 levels by 2050. This goal will be nearly impossible to achieve with California’s current population, projected to grow by 30% over the next 35 years to 50 million. So ecovangelists are trying to block any economic development that could help support more people.
The Newhall Ranch project in north Los Angeles County, which aims to provide housing for nearly 60,000 people as well as tens of thousands of jobs at stores, schools and recreational centers, is the most recent target. With energy-efficient lighting, comprehensive recycling, bike trails and drought-tolerant landscaping, the 12,000-acre planned community would be a green Levittown. But the proposed development—one of the biggest in state history—has been under siege from its inception in 1994 by environmental activists.
The California Supreme Court recently rejected Newhall’s final environmental-impact report. The court’s legally nebulous decision could delay construction for years—and cast a pall over future development.
Newhall’s report, which the Department of Fish and Wildlife approved in 2010, was more than 5,000 pages, with hundreds of pages dedicated to analyzing its greenhouse-gas emissions as required by recent regulatory amendments to the 1970 California Environmental Quality Act (CEQA). The state wildlife agency projected that Newhall would reduce greenhouse-gas emissions 31% by 2020 relative to the California Air Resources Board’s 2008 “baseline” model. This was a larger reduction than the 29% cut that the board has mandated statewide.
The report also included measures for the developer to restore habitat for species potentially affected by the development, such as the coast horned lizard and Townsend’s big-eared bat. U.S. Fish and Wildlife Service officials would move any unarmored threespine stickleback—a tiny fish protected under state and federal law—out of harm’s way.
No matter. The Center for Biological Diversity, along with other local green groups, sued to block the development, arguing that the state wildlife agency’s methodology for analyzing its greenhouse-gas emissions was flawed. They also contended that the stickleback conservation plan violated California’s prohibition against “taking” and “live transplanting” legally protected species—although state law allows “regulated taking” of threatened species.
California’s Second District Court of Appeal rejected all of the lawsuit’s dubious claims, but a 5-2 majority of the state Supreme Court sided with the obstructionists. The majority nitpicked the report’s methodology, conjecturing that perhaps a greater than 31% reduction in greenhouse emissions from new projects might be needed to meet the 29% statewide mandate because it could be harder to achieve efficiencies from older, already-constructed developments. There was no scientific evidence in the court record to support this hypothesis, which was floated by the state attorney general’s office.
The court suggested ways to revise the report but emphasized that it cannot “guarantee that any of these approaches will be found to satisfy CEQA’s demands as to any particular project.” In dissent, Justice Ming Chin said that the majority “is permitting the project opponents to relitigate some already decided issues.” He noted that “delay the project long enough and it has to meet new targets, and then perhaps new targets after that. All this is a recipe for paralysis.”
Green activists have long sought to block new development—and California housing costs are the highest in the country due to the mismatch between supply and demand. The median house price in the Los Angeles metro area is $507,000 compared with $210,000 in Dallas, $290,000 in Miami, $388,000 in Washington, D.C., and $412,000 in New York.
Housing costs have helped to drive middle- and low-income residents out of the state. Newhall Ranch appears to be one more human sacrifice on the altar of the greater environmental good.
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