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PM ACC 1/7/2016
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Hundreds of Advocacy Groups Ask Congress to Block Obama’s Pacific Rim Trade Pact
Jan 7, 2016 | Washington Post
By David Nakamura
A coalition of more than 1,500 interest groups is sending a letter to Congress on Thursday demanding that lawmakers block the Trans-Pacific Partnership (TPP), the 12-nation Pacific Rim trade pact championed by the Obama administration. -
Enviros Wield TransCanada Challenge Against Trade Deal
Jan 7, 2016 | E&E - Energywire
By Geof Koss
Environmentalists are seizing on TransCanada Corp.'s twin legal challenges against President Obama's rejection of the Keystone XL pipeline to oppose the Trans-Pacific Partnership trade deal pending before Congress. -
Business Groups United on TPP
Jan 7, 2016 | Politico Pro - Morning Trade
By Victoria Guida
The administration leveled up this week by officially scoring the endorsements of all the major trade associations, including the U.S. Chamber of Commerce on Wednesday. -
US FDA Bans Three Perfluorinated FCMs
Jan 7, 2016 | Chemical Watch
The US Food and Drug Administration (FDA) has prohibited the use of three classes of long-chain perfluorinated compounds (PFCs) in food contact materials (FCMs) (CW 24 October 2014). -
New Jersey, Chemical Industry Critique ATSDR's Draft PFC Risk Analyses
Jan 7, 2016 | InsideEPA
By Maria Hegstad
Scientists working for New Jersey and chemical companies are questioning core elements of a federal toxicology profile for 13 perfluoroalkyl chemicals (PFCs), arguing the Agency for Toxic Substances and Disease Registry (ATSDR) has ignored EPA risk assessment policies... -
Oregon to Reevaluate 'Significant and Outdated' PELs
Jan 7, 2016 | Chemical Watch
Oregon plans to address outdated permissible exposure limits (PELs), at the state level, in 2016, says Osha administrator Michael Wood. -
Maker Of Product Linked To Hair Loss Kept Safety Studies Secret
Jan 7, 2016 | Environmental Working Group
By Tina Sigurdson
As more than 17,000 customers complained to Guthy-Renker about severe hair loss and baldness after using its WEN by Chaz Dean cleansing conditioner, the company was quietly conducting numerous safety studies, according to federal court documents. -
California Governor Declares State of Emergency Over Gas Leak
Jan 7, 2016 | Wall Street Journal
By Tamara Audi
California Gov. Jerry Brown declared a state of emergency Wednesday over a massive gas rupture that has been sending methane into an upscale neighborhood here for more than two months. -
Company Behind Keystone XL Sues Obama Administration Over Rejected Pipeline
Jan 7, 2016 | National Journal
By Jason Plautz
The company behind the Keystone XL pipeline announced Wednesday that it is suing the Obama administration over its rejection of the controversial tar-sands pipeline. -
C2ES's Perciasepe Says U.S. to Pay Diplomatic Price if Next Administration Rejects Paris Deal
Jan 7, 2016 | E&E TV
Following a major turning point in the global discussion on climate change at the Conference of the Parties meeting earlier this month, what role will the private sector and state and local governments play in helping the United States meet its commitments? -
EPA head: Court Won’t Block Climate Rule
Jan 7, 2016 | The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency (EPA) predicted that a federal court is weeks away from deciding against temporarily blocking the agency’s landmark climate change rule. -
Key Players Gird for Historic Court Battle
Jan 7, 2016 | E&E - Greenwire
By Tiffany Stecker
This will mark the first full year in what is likely to be one of the longest, most drawn-out legal battles in federal environmental regulatory history. -
House to Take Up Resolution to Kill Water Rule Next Week
Jan 7, 2016 | PoliticoPro - Whiteboard
By Annie Snider
The House will next week take up a resolution to kill the Obama administration's controversial Waters of the U.S. rule, although the move will only hit a brick wall at the White House. -
DOE Finds Renewable Standards Reaped Billions in Benefits
Jan 7, 2016 | E&E - Climatewire
By Daniel Cusick
State renewable energy standards netted $7.4 billion in environmental benefits in 2013 while spurring the creation of roughly 200,000 new energy-sector jobs, a new analysis from the Energy Department finds. -
Defiant Ala. Pledges to Wait Out Court Ruling
Jan 7, 2016 | E&E - Energywire
By Kristi E. Swartz
Alabama is waiting for the federal courts to rule on U.S. EPA's Clean Power Plan before the state makes any move on how to comply with it, the state's air division chief said yesterday. -
Wash. Proposes Cap and Trade for Large Facilities
Jan 7, 2016 | E&E - Greenwire
By Amanda Reilly
The state of Washington yesterday proposed its first-ever limits on carbon dioxide emissions from large facilities.
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
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Hundreds of Advocacy Groups Ask Congress to Block Obama’s Pacific Rim Trade Pact
Jan 7, 2016 | Washington Post
By David Nakamura
A coalition of more than 1,500 interest groups is sending a letter to Congress on Thursday demanding that lawmakers block the Trans-Pacific Partnership (TPP), the 12-nation Pacific Rim trade pact championed by the Obama administration.
"The questions policymakers should be asking about these rules is whether, on the whole, they would create American jobs, raise our wages, enhance environmental sustainability, improve public health and advance human rights and democracy," the coalition writes in the four-page letter. "After careful consideration, we believe you will agree, the answer to these questions is no."
Labor unions, environmental groups, consumer advocates and faith groups are among the 1,525 organizations that signed onto the document, which was organized by the Citizens Trade Campaign. Hundreds of local labor union affiliates have signed on.
The effort comes in the same week that several big business organizations, including the U.S. Chamber of Commerce, formally endorsed the trade deal, which is among President Obama's top economic agenda items in the final year of his presidency.
Obama has said that the trade accord, which includes Japan, Mexico, Canada and Australia, will boost U.S. competitiveness in the Asia-Pacific region in the face of China's growing clout. Opponents of the TPP have said that the deal will lead to a loss of manufacturing jobs to Asian nations, harm the environment and increase the cost of some new-generation medicines in poorer countries.
"The TPP elevates investor rights over human rights and democracy," the letter states. The AFL-CIO, the American Federation of Teachers, Greenpeace and the Sierra Club are among the signatories.
Administration officials disputed the characterizations.
“TPP will not only provide a much needed boost to Made-in-America exports and the jobs they support, it will also help level the playing field for American workers and businesses through the toughest labor, environment and innovation protections of any trade agreement in history," said Matthew McAlvanah, a spokesman for the U.S. Trade Representative's office. "At a time when our competitors are actively working to write the rules of the road in the Asia-Pacific through agreements that would put our workers and businesses at a disadvantage, we can’t afford to sit on the sidelines.”
Obama bucked the majority of Democrats in pursuit of the deal, teaming with Republicans to pass legislation granting him "fast-track" trade powers in June, and negotiators for the 12 nations inked the final deal in October. The administration hopes that Congress will vote on the pact by this summer, but some GOP leaders have cited concerns with provisions related to the tobacco and pharmaceutical companies. Senate Majority Leader Mitch McConnell (R-Ky.) has suggested that the vote could be delayed until after the November presidential election or until a new president takes office next January.
The letter from opponents could have the most sway with the small coalition of 28 House Democrats who voted in favor of the fast-track bill. Under the terms of that legislation, Congress cannot amend the trade accord before holding a vote.
"The TPP does not deserve your support," the group writes. "Had Fast Track not become law, Congress could work to remove the misguided and detrimental provisions of the TPP, strengthen weak ones and add new provisions designed to ensure that our most vulnerable families and communities do not bear the brunt of the TPP’s many risks. Now that Fast Track authority is in place for it, Congress is left with no means of adequately amending the agreement without rejecting it entirely. We respectfully ask that you do just that."
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Enviros Wield TransCanada Challenge Against Trade Deal
Jan 7, 2016 | E&E - Energywire
By Geof Koss
Environmentalists are seizing on TransCanada Corp.'s twin legal challenges against President Obama's rejection of the Keystone XL pipeline to oppose the Trans-Pacific Partnership trade deal pending before Congress.
The company, which is hoping to build the pipeline from Alberta into the United States to largely carry oil sands crude, accused the White House of flouting the Constitution and international norms. And many supporters of the project in Congress are rallying to its side.
But green groups wasted no time yesterday in linking TransCanada's legal fight -- which includes a federal lawsuit challenging the constitutionality of Obama's decision, as well as itsnotice of intent to file a claim seeking more than $15 billion in damages under the North American Free Trade Agreement -- to the so-called TPP deal (Greenwire, Jan. 6).
"TransCanada's use of the NAFTA investment tribunal is why TPP, written with the same provision, is a bad idea," wrote William Snape, senior counsel to the Center for Biological Diversity, in an email.
"We don't need foreign fossil fuel companies suing the United States in 'world court' for the president, federal agencies or state governments seeking to lawfully keep dirty KXL oil in the ground," Snape said.
Environmentalists have long criticized investment provisions of trade deals that allow companies to challenge government policies, and the inclusion of such avenues in TPP is among the laundry list of complaints that green groups laid out against the deal when negotiators released it in November (Greenwire, Nov. 5, 2015).
Sierra Club Executive Director Michael Brune echoed the point yesterday. "These destructive provisions that wrongly empower corporations to attack our safeguards show exactly why NAFTA was wrong and why the dangerous and far-reaching Trans-Pacific Partnership is worse and must be stopped in its tracks," Brune said in a statement.
TransCanada's actions are unlikely to help the White House muster Democratic support for TPP, which must be approved by Congress later this year to take effect. House Democrats have already expressed a host of reservations about the deal (E&E Daily, Nov. 18, 2015).
Rep. Raúl Grijalva (D-Ariz.) said yesterday that TransCanada's legal steps were arrogant and disappointing, and undermined U.S. sovereignty.
"This is a domestic decision," he told E&E Daily last night. "The United States can speak for itself, and we need to protect that."
Grijalva also accused TransCanada of interjecting itself into the 2016 presidential campaign and said he hopes Canadian Prime Minister Justin Trudeau "will tell them to back off."
Trudeau has expressed support for KXL but has also been unwilling to mount a significant lobbying effort for the project, unlike his predecessor.
Nevada Republican Rep. Mark Amodei was sympathetic to TransCanada, which waited years for Obama's rejection of the infamous pipeline last November.
"I hope they win," he told E&E Daily.
The company explained in a release: "The NAFTA claim asserts that TransCanada had every reason to expect its application would be granted as the application met the same criteria the U.S. State Department applied when approving applications to construct other similar cross-border pipelines."
South Dakota regulators recently approved a permit renewal for KXL to cross the state. Project supporters hope a new administration or Congress will make it a reality.Constitutional question
While a NAFTA challenge has long been considered a likely option for TransCanada, the separate lawsuit filed in federal court in Houston yesterday accuses the Obama administration of infringing on Congress' constitutional authority to regulate interstate commerce.
"Congress unquestionably has the power, under the Constitution's foreign commerce clause and domestic commerce clause, to determine whether a pipeline of this type should be developed," says the company's complaint.
"In addressing oil pipeline development generally, facilitating cross-border trade in petroleum products, and authorizing the Keystone XL Pipeline directly, Congress has already exercised those powers in a manner incompatible with any assertion that the President can unilaterally prohibit development of the Keystone XL Pipeline," the document says.
While Congress has advanced legislation related to oil pipelines and cross-border infrastructure, including legislation approving KXL, none of the measures have become law. The president vetoed the approval measure.
White House authority over cross-border pipelines stems from an executive order issued by President Lyndon Johnson, and later clarified by President George W. Bush.
A handful of federal courts have entertained -- and rejected -- challenges to the process laid out in the executive order, citing presidential authority under the Constitution to conduct foreign policy.
"As these cases show, courts that have analyzed the President's exercise of permitting authority as articulated in Executive Order 13337 have held that it is a legitimate exercise of the President's constitutional authority, and therefore does not require legislative authorization," the Congressional Research Service noted in a 2012 report.
However, in at least one of the cases, the court accepted the president's authority to permit cross-border pipeline based partly on the fact that Congress has "not attempted to exercise any exclusive authority over the permitting process" (E&ENews PM, Nov. 6, 2015).
Environmentalists, still gleeful over Obama's rejection of KXL, sounded a confident, even sarcastic, tone yesterday that the litigation will prove fruitless.
"Thank you, TransCanada," said Oil Change International Executive Director Stephen Kretzmann in a statement. "We were just discussing how to explain the danger the TPP poses to the environment, and this is the perfect example. We're also really happy to use this opportunity to explain again why KXL and all tar sands infrastructure is a disaster for the climate. We'll use really small words this time. We promise."
Reporter Hannah Hess contributed.
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Jan 7, 2016 | Politico Pro - Morning Trade
By Victoria Guida
BIZ GROUPS UNITED ON TPP: The administration leveled up this week by officially scoring the endorsements of all the major trade associations, including the U.S. Chamber of Commerce on Wednesday. But while the business groups said they would fight for the deal in Congress, the direct message in each of the statements of support this week is to the administration, not lawmakers. This is particularly notable in the Business Roundtable’s statement: “We want Congress to approve the TPP this year. To that end, we are urging the administration to quickly address the remaining issues.”
The message is clear: Business groups want TPP, but they will hold the administration’s feet to the fire to try to resolve the big three issues they don’t like: insufficient monopoly protection for biological drugs, the carveout from the investor-state dispute settlement mechanism for tobacco-control-related complaints, and a provision that would allow governments to restrict where financial services firms can store data.
Story Continued Below
It’s not clear yet what exactly each of those industries — pharmaceutical, tobacco and financial services — want from the administration before they are appeased. But in a statement Wednesday, Chamber President Tom Donohue seemed to echo the sentiments of Senate Finance Committee Chairman Orrin Hatch, who wants the Obama administration to seek specific implementation plans from TPP partners that will help quantify what the U.S. will be getting out of the deal. Hatch has been especially dissatisfied with the outcome on biologics.
“[T]he benefits of a trade agreement lie in how it is interpreted, implemented, and enforced,” Donohue said in the statement. “With that in mind, we’re rolling up our sleeves to work with the administration, Congress and our TPP partners to ensure the agreement is implemented in a way that maximizes its commercial benefits, including market access, rules, and intellectual property protections.” Game on.
IT’S THURSDAY, JAN. 7! Welcome to Morning Trade, where we’re geeking out over the discovery by NOAA archaeologists of two whaling ships from the 1800s that sank off the coast of Alaska more almost 144 years ago. If we were trade reporters a couple hundred years ago, whaling would’ve been a big deal. Have any news from this century? Let me know at vguida@politico.com or @vtg2.
BUT FROMAN WILL TAKE IT: Despite the messaging to the administration, U.S. Trade Representative Michael Froman was pleased with the public support from business. “This is a recognition of the broad benefits that TPP will deliver for the workers, farmers and ranchers who make up America’s economic backbone,” Froman said in a statement. “Exporters in every sector of the U.S. economy increasingly realize that the cost to the U.S. economy of delaying TPP will be billions of dollars lost to our foreign competitors. Working with congressional leaders, we will continue to work for passage of TPP as soon as possible to ensure that the economic benefits these endorsements cite are not delayed.”
And White House press secretary Josh Earnest on Tuesday highlighted the business support as “a clear example of how even Democrats and Republicans can agree that the Trans-Pacific Partnership would do good and important things for the U.S. economy.” Notably, he listed TPP first when asked about the president’s priorities for the year.
TPP SIGNING CEREMONY? TPP leaders are set to sign TPP on Feb. 4 in New Zealand, according to Bloomberg BNA. Click here to read the article: http://bit.ly/1IRMc4n.
RAIN ON TPP PARADE: But the politics of passing TPP just got a little harder. The company behind the Keystone XL pipeline filed an official notice that it will launch an investor-state dispute settlement case against the U.S. under the North American Free Trade Agreement, seeking more than $15 billion in damages. Civil society groups that have long decried ISDS as having the potential to undermine public interest policies pounced on the decision as proof of their criticisms.
“Keystone XL is dead and nothing about this legal maneuvering changes that. But TransCanada ought to be ashamed of trying to extract billions in U.S. taxpayer dollars to boost its profits after being stopped in its tracks from building a dirty, dangerous tar sands pipeline in our backyards,” Sierra Club Executive Director Michael Brune said in a statement. “These destructive provisions that wrongly empower corporations to attack our safeguards show exactly why NAFTA was wrong and why the dangerous and far-reaching Trans-Pacific Partnership is worse and must be stopped in its tracks.”
Democratic presidential candidate Martin O’Malley in a tweet called the suit “outrageous” and “an example of why I oppose #TPP.” Read more Pro coverage of the decision here: http://politico.pro/1Rb4FeR.
Click here to read the notice of intent: http://politico.pro/1VKdc7S, and here to read TransCanada’s press release: http://mwne.ws/1OB5VWA. And if you’re interested in a debate on the merits of TransCanada’s case, Cato Institute’s Simon Lester, who runs WorldTradeLaw.net, already brought up the possibility: http://bit.ly/1Z6uMDc.
THAT’S NOT ALL ON THE ENVIRONMENT: Some environmental groups including the Sierra Club argue TPP doesn’t do nearly enough to protect the environment. Lewis & Clark law professor Chris Wold explains why in a new paper out this week titled, “Empty Promises and Missed Opportunities: An Assessment of the Environmental Chapter of the Trans-Pacific Partnership.” The upshot of his argument? The environment chapter is mostly weak and unenforceable. Click here to read it: http://bit.ly/1Rj8Zck, and a USTR fact sheet on the chapter: http://1.usa.gov/1Rj9fYS.
WORLD BANK: TPP WILL DO A LITTLE GOOD: Some good news for TPP: The World Bank says in a new report it would have a small but positive impact on the U.S. economy. "By shifting resources towards the most productive firms and sectors and expanding export markets, TPP has the potential to lift overall [gross domestic product] of member countries by 1.1 percent by 2030," the report says.
Vietnam and Malaysia stand to gain the most from the pact, with projected GDP gains of 10 percent and 8 percent, respectively, over the next 15 years, according to the report. Meanwhile, the economic benefit for the United States, Canada and Mexico "would be small, on the order of 0.6 percent of GDP," because their existing barriers to trade are already low and because trade represents a modest share of their overall economic activity. Click here to read the full story from Pro Trade’s Doug Palmer: http://politico.pro/22LYRfY.
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US FDA Bans Three Perfluorinated FCMs
Jan 7, 2016 | Chemical Watch
The US Food and Drug Administration (FDA) has prohibited the use of three classes of long-chain perfluorinated compounds (PFCs) in food contact materials (FCMs) (CW 24 October 2014).
The compounds are:diethanolamine salts of mono- and bis (1 H, 1 H, 2 H, 2 H perfluoroalkyl) phosphates where the alkyl group is even-numbered in the range C8-C18 and the salts have a fluorine content of 52.4%t to 54.4% as determined on a solids basis;pentanoic acid, 4,4-bis [(gamma-omega-perfluoro-C8-20-alkyl)thio] derivatives, compounds with diethanolamine (CAS No. 71608-61-2); andperfluoroalkyl substituted phosphate ester acids, ammonium salts formed by the reaction of 2,2-bis[([gamma], [omega]-perfluoro C4-20 alkylthio) methyl]-1,3-propanediol, polyphosphoric acid and ammonium hydroxide.
The ban comes in response to a 2014 petition from a coalition of NGOs.
The FDA says it acted on newly available data showing the toxicity of substances with similar structures to the compounds. This demonstrated there is "no longer a reasonable certainty of no harm from the food-contact use.”
The rule, which takes effect immediately, amends the food additive Regulation by no longer allowing the substances' use as oil and water repellents in paper and paperboard products. These include microwave popcorn bags and pizza boxes.
The NGO petition noted that the US companies using these compounds voluntarily ceased their use in 2011, at the FDA's urging.
However the Environmental Working Group (EWG) – one of the petitioning organisations – says the rule is “too little, too late”.
“The FDA’s belated action comes more than a decade after EWG and other advocates sounded alarms, and five years after US chemical companies stopped making the chemicals," it says.
"It does nothing to prevent food processors and packagers from using almost 100 related chemicals that may also be hazardous.”
The EWG advocates that food contact materials be proven safe before being allowed on the market.
The organisations who petitioned the FDA in October 2014 werethe Natural Resources Defense Council;the Center for Food Safety;the Breast Cancer Fund;the Center for Environmental Health;Clean Water Action;the Center for Science in the Public Interest;Children's Environmental Health Network;the Environmental Working Group; andImproving Kids' Environment.
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New Jersey, Chemical Industry Critique ATSDR's Draft PFC Risk Analyses
Jan 7, 2016 | InsideEPA
By Maria Hegstad
Scientists working for New Jersey and chemical companies are questioning core elements of a federal toxicology profile for 13 perfluoroalkyl chemicals (PFCs), arguing the Agency for Toxic Substances and Disease Registry (ATSDR) has ignored EPA risk assessment policies in calculating two risk estimates but differing on which policies have not been followed.
Scientists with New Jersey's departments of Environmental Protection (NJDEP) and Health (NJDOH) call ATSDR's document "inadequate in many instances. The document has not been appropriately updated throughout," the state agencies write in their joint Nov. 25 comments. New Jersey also considers the minimum risk level (MRL) that ATSDR calculated for one of the more researched PFCs, perfluorooctanoic acid (PFOA), "not scientifically supportable. This study does not appear to be an appropriate basis for MRL development, and the Benchmark Dose [BMD] modeling used to derive the MRL is not valid."
And New Jersey harshly critiques the monkey study ATSDR used as the basis for the PFOA MRL calculation. "The study itself is problematic for use in risk assessment for reasons including possible mortality at the lowest dose."
New Jersey's comments, like the rest of the public comments that ATSDR received regarding the draft PFC ToxProfile, were due Dec. 1 but were not released until Dec. 29 at Inside EPA's request.
New Jersey also questions ATSDR's mathematical approach, using BMD modeling with the study data, which New Jersey suggests does not follow EPA's BMD modeling technical guidance because ATSDR has "an insufficient number of data points for BMD modeling," relying on a single study. EPA's 2002 guidance on using BMD modeling "would instead recommend use of a" no observed adverse effect level or lowest adverse effect level derivation when only one dose group is available, the state says.
The state does not comment upon the study that ATSDR uses as the basis for its MRL for another more-researched PFC, perfluorooctane sulfonate (PFOS).
Industry comments criticize ATSDR's MRL for both PFOA and PFOS, questioning the federal agency's decision to base the MRLs on liver weight change effects, which they argue does not comport with EPA risk assessment guidance.
For example, 3M writes in its Nov. 30 comments that "The selection of these two MRLs was based on the increased liver weight observed in non-human primate toxicology studies, which, based on guidance, research and the comments provided herein, is scientifically unjustified. The use of increased liver weight alone by the ATSDR is inconsistent with current USEPA guidelines and other published peer-reviewed expert conclusions."
Risk Estimates
3M goes on to argue that the liver weight effects ATSDR uses to calculate the risk estimates are reversible and argues that "a significant body of mechanistic experimental data that relates to the liver response to exposure to PFOA or PFOS strongly suggests that liver weight as an endpoint for the human-health risk assessment is inappropriate and needlessly conservative."
An environmentalist in a critique of ATSDR's draft when it was released last fall bemoaned its reliance on liver weight change, which is often a crude assessment of an agent's toxicity. Newer studies assess PFCs' reproductive developmental toxicity, as well as its immunotoxicity, the source said, pointing specifically to a recent review article by Philippe Grandjean and Richard Clapp, public health professors at Harvard University and University of Massachusetts Lowell, respectively. The source said he hopes that EPA's water office, in finalizing its ongoing assessments of PFOA and PFOS, chooses not to follow ATSDR's approach.
ATSDR, by congressional mandate, produces ToxProfiles for hazardous substances found at Superfund sites, based on frequency of occurrence, toxicity and potential for human exposure. The agency also produces profiles for substances related to sites connected with the Defense and Energy departments.
The draft ToxProfile for 13 PFCs, released for public comment in September, includes non-cancer risk estimates for PFOA and PFOS that are similar to EPA's Integrated Risk Information System (IRIS) risk estimates. But the new draft document does not contain risk calculations for the other 11 PFCs because ATSDR determined that it had insufficient information to calculate quantitative risk estimates for them -- a finding that industry supports but the New Jersey scientists say is unfounded.
For PFOA, ATSDR calculates an MRL for intermediate exposure duration of 2x10^-5 milligrams per kilogram bodyweight per day (mg/kg/day), based on a 2002 study showing liver weight changes in lab monkeys. For PFOS, ATSDR proposes an MRL of 3x10^-5 mg/kg/day, based on liver weight changes in a separate 2002 toxicology study of lab monkeys.
ATSDR calculates MRLs for acute, intermediate and chronic exposure durations by ingestion or inhalation, while EPA's IRIS program generally focuses on chronic risk estimates by either route of exposure.
In the case of PFOA and PFOS, ATSDR provides only intermediate-duration oral MRLs, defined in the document as exposure durations of 15-364 days. Because of the difference in the duration of the risk estimates, the numbers cannot be compared directly to the chronic IRIS reference doses that EPA proposed for PFOA and PFOS in its latest draft assessment, which underwent critical peer review in August of 2014.
EPA's Office of Water in 2009 issued drinking water health advisory levels of 0.4 micrograms per liter of water (ug/L) for PFOA and 0.2 ug/L for PFOS, but these numbers are not mandatory. Based on standard default assumptions EPA uses for its drinking water standards and health advisories, the PFOA reference dose (RfD), for example, would appear to translate into a chronic drinking water health advisory level of 0.1 ug/L, a stricter level than the 2009 health advisory level.
PFOA RfD
EPA in 2014 proposed a PFOA RfD, the maximum amount of a substance EPA estimates can be ingested daily over a lifetime without adverse non-cancer health effects, of 2x10^-5 mg/kg/day due to changes in the liver linked to developmental effects and changes in the kidney. In the PFOS assessment, EPA is proposing an RfD of 3x10^-5 mg/kg/day due to developmental toxicity and liver effects.
EPA, meanwhile, announced last month that it plans to conduct an IRIS assessment of perfluoroalkyl compounds, though its agenda indicates that managers are still discussing which of the compounds will be included in the IRIS assessment. The assessment is in the first group of chemicals that EPA has prioritized for starting to assess in the next few years.
Commenting on ATSDR's decision to limit risk estimates in the ToxProfile to PFOA and PFOS, the New Jersey scientists say "ATSDR's conclusion that there is insufficient information to develop MRLs for [PFCs] other than PFOA and PFOS is closely related to its decision that rodent toxicology data, in general, should not be considered for MRL development . . . [but] we do not agree that this conclusion is supported by the available scientific information."
Industry, by contrast, supports this conclusion. For example, consultants to Solvay Specialty Polymers USA, LLC, write in that company's Nov. 30 comments that they agree that with ATSDR's determinations that there are insufficient data to derive acute or chronic MRLs, and that there is only sufficient data to calculate the two subchronic MRLs for PFOA and PFOS. Further, they write that they agree with ATSDR's conclusions that "[f]or all [PFCs], rodent data are not appropriate for use in the evaluation of human health effects and calculation of human health toxicity values [and] . . . [f]or all [PFCs], the human data are insufficient for making clear determinations of human health risks."
Solvay's comments are supported by the chemical trade organization Chemistry Council of New Jersey, of which Solvay is a member, according to the Council's Dec. 1 comments.
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Oregon to Reevaluate 'Significant and Outdated' PELs
Jan 7, 2016 | Chemical Watch
Oregon plans to address outdated permissible exposure limits (PELs), at the state level, in 2016, says Osha administrator Michael Wood.
According to Mr Wood, this comes due to inaction at the federal level: “It is clear that federal Osha will never be able to keep the regulatory levels sufficiently up to date, at least, until a completely new approach is developed and adopted”, he said.
The agency plans to reevaluate four to six of “the most significant and outdated PELs”. These will be identified following discussions with toxicologists and industrial hygienists, to determine “which chemicals represent the most significant unregulated – or under-regulated – risk”.
Additionally, Mr Wood has announced his aim to encourage employers to adopt more highly protective exposure levels. This will be accomplished “using our consultation and educational resources, but also reinforcing the important role of education even as part of our enforcement visits”, he said.
He referenced levels recommended by the National Institute for Occupational Safety and Health (Niosh) and the American Conference of Government and Industrial Hygienists as being based on more current exposure information than enforceable PELs.
Osha Assistant Secretary David Michaels “welcomed” Oregon's news, saying that the initiative “shows how adaptable and effective state plans can be in addressing safety and health issues”.
“Osha's state counterparts have always been sources of innovations in worker health and safety,” he added.
Federal Osha initiated a request for information in October 2014, to seek feedback on how it can improve its process for updating outdated PELs (CW 22 October 2015).
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Maker Of Product Linked To Hair Loss Kept Safety Studies Secret
Jan 7, 2016 | Environmental Working Group
By Tina Sigurdson
As more than 17,000 customers complained to Guthy-Renker about severe hair loss and baldness after using its WEN by Chaz Dean cleansing conditioner, the company was quietly conducting numerous safety studies, according to federal court documents.
What did those studies conclude? We at EWG want to know — and so do the many people who say they were injured — but as far as we know, Guthy-Renker has not disclosed the results of its safety studies to the federal Food and Drug Administration or the public.
We know about the existence of the secret safety studies because of documents filed in a class action suit brought against Guthy-Renker in federal court in Los Angeles. But the woefully weak and outdated federal law that governs the personal care products industry does not require companies like Guthy-Renker to inform the FDA about customer complaints or their own health and safety studies.
Cosmetics manufacturers can use virtually any ingredients without first making sure their products are safe. They can leave consumers and federal regulators in the dark.
Sens. Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine) have proposed a bill to fix this massive loophole in federal law. Their Personal Care Products Safety Actwould require cosmetics makers to disclose their products’ ingredients and reports of adverse health events to the FDA. They would have to hand over internal studies showing potential health effects.
The FDA would be empowered to recall dangerous products and to require specific labeling and warnings for products that contain ingredients not suitable for everyone.
EWG first reported about the hair loss complaints last month and also revealed that Chaz Dean’s WEN product line contains synthetic chemicals, including known allergens, even though his marketing materials suggest that the products are naturally derived from ingredients found in his garden.
The controversy swirling around Guthy-Renker is a cautionary tale from an industry that operates with almost no oversight by federal health officials. Until a remedy like the Feinstein-Collins proposal is the law of the land, American consumers will remain at risk from the unchecked use of chemicals in personal care and cosmetics products.
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California Governor Declares State of Emergency Over Gas Leak
Jan 7, 2016 | Wall Street Journal
By Tamara Audi
California Gov. Jerry Brown declared a state of emergency Wednesday over a massive gas rupture that has been sending methane into an upscale neighborhood here for more than two months.
The move comes after residents, activists and lawyers have been pressing Mr. Brown for such a declaration for weeks.
Mr. Brown had not done so in part because such declarations help provide government funds for recovery costs, and Southern California Gas Co., a unit of Sempra Energy, is paying for work associated with trying to stop the leak, and to relocate thousands of residents.
SoCal Gas officials have said the leak may not be plugged until the end of March.
State officials have already been on the site of the leak, in the Porter Ranch neighborhood of Los Angeles, but the declaration will “direct further action to protect public health and safety, ensure accountability and strengthen oversight of gas storage facilities,” according to a statement from the governor’s office.
Earlier this week, Mr. Brown visited Porter Ranch, as well as the Aliso Canyon Natural Gas Storage facility, the site of the leak.
SoCal Gas officials say they are trying to plug an underground well that is spewing gas from a large underground reservoir.
Thousands of residents have relocated because of health problems like headaches, nosebleeds and nausea likely caused by an odorant added to the gas, according to health officials. The officials have said they don't believe there are long term effects from exposure.
Mr. Brown’s proclamation says the gas company must maximize its daily withdrawals of natural gas from the storage facility to lessen the amount of gas that can escape through the rupture. It also says an independent panel of medical and scientific experts will be created to review health concerns.
The declaration also calls for increased oversight of the gas industry in the state, and creates new “emergency regulations” for gas storage facility operators, including daily inspection of gas storage well heads and regular testing of safety valves in wells.
Denni Arriola, the president and chief executive of SoCal Gas, said in a statement that the utility “stands willing and ready to cooperate with the Governor’s office, all state and local officials, and regulatory agencies.” Mr. Arriola said the company remains focused on “quickly and safely stopping the leak and minimizing the impact to our neighbors.”
Politicians and environmental groups welcomed the declaration.
“Governor Jerry Brown’s emergency order is both necessary and overdue as it comes on the 79th day since this disaster began,” said Alexandra Nagy, an organizer for Food & Water Watch, an environmental advocacy group. “We are relieved that the residents of Porter Ranch, whose lives have been severely disrupted, will be getting additional resources that are greatly needed.”
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Company Behind Keystone XL Sues Obama Administration Over Rejected Pipeline
Jan 7, 2016 | National Journal
By Jason Plautz
The company behind the Keystone XL pipeline announced Wednesday that it is suing the Obama administration over its rejection of the controversial tar-sands pipeline.
TransCanada has filed suit in a federal court, claiming that President Obama’s rejection of the project in November represented an “unprecedented exercise of Presidential power” and overstepped Congress’s power to regulate interstate and international commerce.
The company also said it will separately initiate a claim under the North American Free Trade Agreement to recover more than $15 billion in damages that the company says it suffered “as a result of the U.S. administration’s breach of its NAFTA obligations.”
President Obama in November rejected the pipeline after a seven-year review process, saying that its potential impact on climate change far outweighed any economic benefits. Coming just weeks before the opening of the United Nations climate talks in Paris, the White House framed the decisionas a clear symbol to the rest of the world of the country’s climate leadership.
“Frankly, approving this project would have undercut that global leadership,” Obama said at the time. “And that’s the biggest risk we face—not acting.”
TransCanada said that rationale doesn’t hold water and it is going to sue to keep the project alive.
“Misplaced symbolism was chosen over merit and science—rhetoric won out over reason,” the company said in a blog post explaining its lawsuit.
The pipeline would have sent oil from Canadian oil sands to Gulf Coast refineries. Environmentalists have long argued that the pipeline would be “game over” for the climate by spurring more development of carbon-intensive oil sands. Republicans and the oil industry pushed for its construction, saying it would help free America from its reliance on foreign oil and create jobs along the route.
TransCanada’s suit—filed in a federal court in Texas—also charges that the White House superseded Congress’s authority to determine whether a cross-border pipeline should be developed. The House and Senate last year passed a bill that would have approved the project, but it was vetoed by the White House on the grounds that it was interfering with the State Department’s permitting process.
Separately, the company announced its plans to submit an arbitration claim under Chapter 11 of NAFTA to take back billions in damages and costs. The lengthy review process, the company said, required heavy spending to keep the pipeline route alive.
The rejection, TransCanada added, deprived investors “of the value of billions of dollars of investment in the project.”
The NAFTA charge could be a tough sell—the U.S. has never lost a NAFTA claim since the treaty was signed in 1994.
Under the NAFTA process, TransCanada sent a notice of intent to submit a claim to the State Department, but it must wait six months from the date of the Nov. 7 denial before it can file an arbitration request. The company can negotiate with the administration in the meantime.
Earlier this week, South Dakota state regulators once again approved a portion of the pipeline that would go through the state, in spite of the federal rejection
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C2ES's Perciasepe Says U.S. to Pay Diplomatic Price if Next Administration Rejects Paris Deal
Jan 7, 2016 | E&E TV
Following a major turning point in the global discussion on climate change at the Conference of the Parties meeting earlier this month, what role will the private sector and state and local governments play in helping the United States meet its commitments? During today's OnPoint, Bob Perciasepe, president of the Center for Climate and Energy Solutions and the former deputy administrator of U.S. EPA, discusses the next steps for the deal, including Clean Power Plan implementation. He also talks about how a potential party shift in the White House could affect the deal's future.
anything, that's a pretty strong signal of a direction we're going in. In the U.S. you have many states and cities already sending those signals, and now with the Clean Power Plan bringing more states into the fold a lot of strong signals are being sent on the direction we're going.
Monica Trauzzi: And how instrumental were states and cities in getting the deal done and at the meeting?
Bob Perciasepe: You know, the way the deal is constructed in a very flexible, bottom-up approach for setting the contributions and a higher sort of top-down accountability and transparency approach, sort of a hybrid, what you saw was countries building their contributions based on what their subnational, local business community is doing. And in the U.S. -- the contribution that the U.S. made at the conference were based on what states are doing, already doing, what businesses are innovating on, like electric vehicles. All of that was taken into account.
Monica Trauzzi: And the Clean Power Plan, as you mentioned, it's going to be a huge part of the U.S. meeting its commitments. You've been working with states and stakeholders as they work on creating compliance plans. Are you confident that each state will submit a compliance plan?
Bob Perciasepe: I'm highly confident that most states will. There may be some that don't. There's a pivotal point coming up here on whether the courts will put a stay on the rule or not. I think it's unlikely, but once that hurdle is cleared I think the gates will open even harder for states to be working on their plans. And most states are already doing that.
Monica Trauzzi: So -- and that's a big question, too. In terms of its impact on the Paris deal if there is a stay or any kind of legal action against the Clean Power Plan, how does that impact the U.S.'s ability to meet its commitments?
Bob Perciasepe: Well, keep in mind this is a commitment after 2025 and we're in 2015, so there's 10 years that -- well, actually we're almost in 2016. So there's almost 10 years that are involved with this. And what you see in the U.S. is many -- California was there in force, Tennessee was there. You had states all over the country were visiting in Paris and participating in the process. And you already have 10 states in the country that have a price on carbon, you know, the Northeast and California. So things are happening already. The Clean Power Plan puts direction and emphasis on it after 2030, but some of those trends are already happening. And I think that came across very strongly in Paris, and I think there's a lot of discounting on what the legal action will be because they recognize this is a direction that we're already going in.
Monica Trauzzi: So as you spoke with negotiators and their teams in Paris, what were the discussions like about the Clean Power Plan? How big did it play?
Bob Perciasepe: Oh, it played very, very, very big, but in addition to the states being in Paris, which is not -- it didn't happen in the earlier conferences or the parties -- there were also a very strong showing of the American power industry was there. Many CEOs were there talking about what their corporate commitments are to be made. So it's not like the Clean Power Plan is irrelevant by any stretch of the imagination, because it sets the signals we were talking about earlier in this conversation. But I think what was also delivered in Paris by both the companies, the states and the cities -- there was a summit of over 100 mayors at the same time as the conference. The signal that was sent there to the negotiators was that these are things we are committed to across the board in the United States, and I think that that was very helpful.
Monica Trauzzi: As we head into an election year, a shift in administrations, potentially a party shift in the White House, what could the impacts be on post-Paris next steps if the White House goes to a Republican?
Bob Perciasepe: Yes, well, it's hard to speculate what will happen in a presidential election. I think Yogi Berra once said that comment that predicting the future is a tough thing to do. And so 190 countries agreed to this. For the United States to not be part of that, there'd be some diplomatic price to pay. I mean, you know, the countries that are not participating are countries like North Korea, you know, Syria. So there'll be a diplomatic price to pay to not participate in that process, and the same thing with the Clean Power Plan. It's supported pretty strongly in the United States by the public, the broad public, and again I think adjusting could always happen but I think it'd be hard to walk away without some political price. So it remains to be seen who gets elected, but whoever's elected, they're going to have to face those kinds of diplomatic and political issues regardless. It's not a simple like "I don't want to do it so I'm not going to do it."
Monica Trauzzi: All right, Bob. Great to see you, as always. Thanks for coming on the show.
Bob Perciasepe: All right, thank you.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
OnPoint
Aired: Monday, December 21, 2015
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EPA head: Court Won’t Block Climate Rule
Jan 7, 2016 | The Hill - E2 Wire
By Timothy Cama
The head of the Environmental Protection Agency (EPA) predicted that a federal court is weeks away from deciding against temporarily blocking the agency’s landmark climate change rule.
A coalition of states, energy companies, business groups and others led by West Virginia has asked the U.S. Court of Appeals for the District of Columbia Circuit to put the regulations on hold while they are litigated.
But EPA chief Gina McCarthy was confident Thursday that her agency will win both on the petition to halt the rule and the case overall.
“I think we’ll get through the stay soon. We’ll be getting a decision in the next couple weeks or so,” McCarthy said at a Council on Foreign Relations event on climate change policy.
“There’s no damage that would warrant a stay that any of us could identify,” she said. “So we’re really hopeful on that.”
The requested stay is only the first of many expected steps in the litigation, which could take years.
The court will later decide on the merits of the case. But whoever wins, the other side is likely to appeal to the Supreme Court, extending the timeline even farther.
McCarthy repeated her stance that the climate rule for power plants is legally defensible under the Clean Air Act.
“We all are confident that we meet the legal test there,” she said.
McCarthy was resistant to talking about what would happen if the rule were overturned, saying it will not happen.
But she said the Obama administration would probably keep trying to work on the issue of climate change.
“This is our shot at looking at this under the Clean Air Act,” she said. “We’d always welcome Congress taking action. We don’t see that coming up, so we’ll look at other opportunities.”
Beyond the court fight, McCarthy said her top priority for the climate rule is working with states to implement it.
States are under a September deadline to submit their plans for how they will meet their individual emissions reduction targets from the EPA, or to ask for an extension of up to two years.
“I’ve been to many meetings and I’m seeing nothing but really, very positive energy on this,” McCarthy said. “I’m pretty confident that we’re going to have the plans in.
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Key Players Gird for Historic Court Battle
Jan 7, 2016 | E&E - Greenwire
By Tiffany Stecker
This will mark the first full year in what is likely to be one of the longest, most drawn-out legal battles in federal environmental regulatory history.
The Obama administration's Clean Water Act jurisdiction rule -- better known as the Waters of the U.S. rule or WOTUS -- will spend the foreseeable future in court, rather than being implemented on the ground.
The measure seeks to establish which waterways and wetlands receive automatic protection under the law. Clarity is necessary, rule supporters say, because two Supreme Court rulings made it harder to define the federal government's reach.SPECIAL SERIES
In this series, E&E rounds up some of the key players on energy and environmental policy.
But before parties can make arguments for and against the rule, judges must decide on a key procedural detail: Do local district courts have jurisdiction to decide on the legality of the rulemaking? Or should the challenges be heard at the appellate level?
Those questions do not yet address the core arguments that states, farming groups, industry associations and other opponents have made since the rule went into effect last August.
Foes of the rule say WOTUS is unconstitutional and misinterprets the Clean Water Act. They also say the administration flouted proper procedure during its development. But the court jurisdiction issue could take years to resolve before legal experts finally dig into the meat and potatoes of the rule.
"This could be a long slog," said Reed Hopper, principal attorney with the conservative Pacific Legal Foundation in Sacramento, Calif., adding that the jurisdiction issue may not be resolved until 2017 at the earliest.
The next couple of months will begin to offer rule watchers a sense of how long the road will be. The Cincinnati-based 6th U.S. Circuit Court of Appeals will soon rule on whether the appeals court has jurisdiction -- which the Department of Justice argued last month is the proper venue -- or district court, which industry challengers prefer.
The 11th U.S. Circuit Court of Appeals will hear oral arguments on the same question on Feb. 23 in Atlanta. Parties expect a ruling soon after.
Here are some of the key players in the debate, both in the courtroom and behind the scenes.DOJ's Environmental and Natural Resources Division
Steve Samuels is heading the Obama administration's defense team against the Clean Water Rule's critics. He's a 30-year veteran of DOJ's environmental division, where he witnessed the legal evolution of the federal government's role in implementing the Clean Water Act.
Samuels began his DOJ career in 1985, four days after the Supreme Court ruled for a more expansive definition of regulated waters in United States v. Riverside Bayview Homes Inc., a win for environmentalists.
DOJ Team Photo from left to right: David Gunter, Daniel Dertke, Andrew Doyle, Jessica O’Donnell, Stephen Samuels, Amy Dona, Martha Mann, Stacey Bosshardt and Aaron Avila. Photo courtesy of DOJ.
In the decades followingBayview Homes, Samuels helped interpret and craft the legal strategy for U.S. water policy following the 2001 Supreme Court ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers -- also known as SWANCC -- and the court's 2006 decision inRapanos v. United States, the two cases that blurred the limits of federal jurisdiction (Greenwire, Sept. 30, 2015).
Before his time at DOJ, Samuels worked at the Energy Department and the law firm Breed, Abbott & Morgan. He has two children and counts traveling, live music and following the Washington Nationals baseball team among his hobbies.
While Samuels will stay behind the curtain, he will use his extensive curriculum vitae on water policy to boost colleagues in the division who will be presenting the administration's case in court.
In October Martha Mann argued a motion before the Judicial Panel on Multidistrict Litigation to consolidate the various district court water rule cases. She also presented oral arguments to the 6th Circuit last month.
Mann joined DOJ's environmental division in 2001. The mother of two lives in Clarksville, Md., and spends her off hours renovating an old home and farm, sailing and traveling.
Daniel Dertke argued against three motions for preliminary injunction against the rule last year. A member of DOJ's environmental division since 1993, he lives in Arlington, Va., with his three children. Dertke enjoys hiking, camping, the St. Louis Cardinals baseball team and Duke University's basketball team, his undergraduate alma mater.
Other members of the administration's litigation team are Jessica O'Donnell, Andy Doyle,Amy Dona, Stacey Bosshardt, Kristofor Swanson, Robert Lundman and David Gunter, under the supervision of Samuels, Jon Lipshultz and Aaron Avila.
Fun fact: Dertke, O'Donnell and Mann are all parents to twins.Tim Bishop
Bishop, a partner with the law firm Mayer Brown LLP, is lead counsel for a coalition of 18 national agriculture, energy and construction trade groups that are challenging the Clean Water Rule in the U.S. District Court for the Southern District of Texas.
Tim Bishop. Photo courtesy of Mayer Brown.
Bishop made his mark on the water regulatory landscape while representing industry groups in SWANCC. However, the British-born attorney has not always fought against the federal government's efforts.
He worked with EPA to defend the agency against environmentalists' challenges to a policy that exempted logging roads from stormwater regulation in Decker v. Northwest Environmental Defense Center, and observers considered him as being fairly liberal earlier in his career (Greenwire, Feb. 26, 2014).
In addition to the jurisdictional question, judges weighing the Clean Water Act rule will also decide whether the administrative record as certified by the administration is complete and accurate, Bishop said.
"Hopefully we will get a decision striking down the Rule before the end of the year," Bishop said in an email, assuming the questions on jurisdiction don't linger too long in the courts.
Bishop also led the American Farm Bureau Federation and other groups' Supreme Court petition to challenge the 3rd U.S. Circuit Court of Appeals' upholding of EPA's total maximum daily load allowance, or "pollution diet," for the Chesapeake Bay.Reed Hopper
Hopper, principal attorney for the Pacific Legal Foundation, is no stranger to high-profile water cases. He argued for defendant John Rapanos in the 2006 Supreme Court case, where a split decision forced the Army Corps and EPA to determine on a case-by-case basis which streams, wetlands and marshes fall under federal jurisdiction and compelled the administration to develop a new rule to streamline the process.
Rapanos greatly affected how EPA and the corps assert Clean Water Act jurisdiction over the nation's waters, a win for industry and farming groups.
Now, Hopper is leading the challenge by 11 parties from five states against WOTUS in the U.S. District Court for the District of Minnesota, where the judge is waiting on the appellate courts' rulings to move on the case.
The Pacific Legal Foundation is representing landowners in two other notable water cases.
The Supreme Court agreed last month to hear Hawkes Co., et al v. U.S. Army Corps of Engineers, a case launched by several developers in Minnesota, and PLF will defend an appeals court decision on jurisdictional determinations of wetlands.
PLF is also representing California farmer John Duarte in a case set to be argued in the U.S. District Court for the Eastern District of California.
The firm is suing the corps and the Central Valley Regional Water Quality Control Board, claiming regulators denied Duarte due process when saying he had violated the Clean Water Act for plowing his farm to plant wheat.
The American Farm Bureau Federation recently highlighted the case as a cautionary tale of how EPA's new Clean Water Act jurisdiction rule could affect landowners.
The father of three and grandfather of six describes himself as an avid reader and is a member of the Church of Jesus Christ of Latter-day Saints.Britt Grant
Georgia's solicitor general will help represent 11 states before the 11th U.S. Circuit Court of Appeals next month in favor of keeping the WOTUS cases in district courts across the country, where dozens of states and industry challengers filed suit last year.
Britt Grant. Photo courtesy of LinkedIn.
Grant worked on domestic issues at the White House during President George W. Bush's first term. She then served as a law clerk at the U.S. Court of Appeals for the District of Columbia Circuit under Judge Brett Kavanaugh, a Bush appointee with a track record of ruling against EPA in high-profile cases.
She then spent almost four years at the Washington, D.C., firm Kirkland & Ellis LLP before returning to her hometown of Atlanta to work in the Georgia Office of the Attorney General.
Grant began her stint in the firm's policy office, where she managed the Savannah Harbor Expansion Project, a $706 million corps endeavor to deepen the harbor's shipping channel. She became the solicitor general last year.
In October, Grant was one of 11 people recommended to Georgia Gov. Nathan Deal (R) for an appointment on the Georgia Court of Appeals.Judges David McKeague and Richard Griffin
These two 6th Circuit judges were actively involved in questioning attorneys during the oral arguments over which courts have jurisdiction to weigh challenges to the WOTUS rule.
McKeague and Griffin were appointed by Bush in 2001 and 2002, but their confirmation took years. Senate Democrats fought the nominations, first by stalling the process in the Senate Judiciary Committee.
After Senate control shifted to the GOP in 2003, Michigan Democratic Sens. Carl Levin and Debbie Stabenow fought to block the confirmation votes in retaliation for Bush's refusal to renominate two Michigan nominees to the 6th Circuit, whose own confirmations were stalled during the Clinton administration. The Senate finally confirmed McKeague and Griffin in 2005.
McKeague was recently part of a panel of judges that ruled in favor of a mining company's right to discharge the chemical element selenium into a nearby creek (Greenwire, Jan. 28, 2015).Judge Ralph Erickson
Ralph Erickson. Photo courtesy ofThe Bismarck Tribune.
This North Dakota U.S. District Court judge made headlines in August when he blocked the Clean Water Act jurisdiction rule from going into effect in 13 states.
Erickson, a Bush appointee, is moving forward on an industry challenge to the rule, deviating from other district judges who are waiting on the federal appeals courts to rule on jurisdiction.
The former personal-injury lawyer, who presided over a high-profile death penalty case in 2007, has some experience with federal water issues.
In 2010, Erickson ruled that a North Dakota farmer was guilty of illegally draining wetlands covered by a Fish and Wildlife Service easement, upholding a lower-court ruling (Greenwire, Nov. 11, 2015).Jon Devine
The Natural Resources Defense Council's Devine is one of the attorneys leading environmentalists' defense of the rule. Along with the National Wildlife Federation and the Southern Environmental Law Center, Devine will be crafting arguments in favor of the rule and the protections it extends to streams, marshes and bogs.
Devine will also play a big role in promoting the rule to the public in the face of criticism from industry groups and congressional Republicans.
"If past is prologue, the congressional Republican leadership will try to divert attention from the rule's grounding in the Clean Water Act and copious science by attacking everything else they can think of," Devine said.
Devine also expects the courts to resolve the preliminary matters this year and shift to the legal merits of the challenges to the rule.
When he's not working, Devine enjoys spending time with his wife and two sons kayaking, tubing and swimming on the Potomac and Shenandoah rivers; skiing and snow boarding in the winter; and attending Boston Red Sox and Nationals baseball games.
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House to Take Up Resolution to Kill Water Rule Next Week
Jan 7, 2016 | PoliticoPro - Whiteboard
By Annie Snider
The House will next week take up a resolution to kill the Obama administration's controversial Waters of the U.S. rule, although the move will only hit a brick wall at the White House.
The House Rules Committee will set the terms of debate for Sen. Joni Ernst's resolution of disapproval under the Congressional Review Act on Monday night. The resolution passed the Senate in November by a vote of 53-44, needing only a simple majority to pass. The lower chamber has voted multiple times to block the regulation, also called the Clean Water Rule, and is expected to do so again this time.
But President Barack Obama has consistently threatened to veto such measures, and opponents are far from having the votes to override him. After opponents failed to secure a rider on the end-of-year spending bill blocking the rule, the main fight has moved to the court room.
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DOE Finds Renewable Standards Reaped Billions in Benefits
Jan 7, 2016 | E&E - Climatewire
By Daniel Cusick
State renewable energy standards netted $7.4 billion in environmental benefits in 2013 while spurring the creation of roughly 200,000 new energy-sector jobs, a new analysis from the Energy Department finds.
Among other things, the joint study released yesterday by the National Renewable Energy Laboratory and Lawrence Berkeley National Laboratory found that renewable portfolio standards (RPSes) have spurred $2.2 billion in benefits through reduced greenhouse gas emissions alone and reduced water withdrawals by 830 billion gallons in 2013.
"Our goal was to estimate the magnitude of RPS benefits and impacts at a national level using established methodologies, while recognizing that individual states can perform their own, more detailed assessments," NREL's Jenny Heeter, one of the report's authors, said in a statement announcing the findings.
RPS policies, currently enacted in 29 states and the District of Columbia, require that rate-based utilities and other electricity providers meet a minimum portion of their load using renewable energy sources like solar, wind, biomass or geothermal. Most RPSes are expressed as a percentage of generation that must come from renewable resources by a specific date, say 25 percent by 2025.
But RPSes vary. Some states, such as South Carolina and Indiana, require utilities to meet relatively modest clean energy goals -- 10 percent or less over the next five to 10 years, for example. Others have adopted aggressive targets, such as Vermont's 75 percent by 2032 requirement and California's 50 percent by 2030 RPS.
While such policies have shifted U.S. power generation profiles, they have also been a source of deep political division. Environmentalists and clean energy advocates generally cheer the programs while backers of traditional energy resources say they distort energy markets and drive up costs for utilities and ratepayers.
The DOE analysis notes that many states are currently considering whether to extend, eliminate or otherwise revise existing RPS policies. As such, it "is intended to inform these ongoing discussions by helping states evaluate RPS programs," said Ryan Wiser, a senior scientist and deputy group leader for LBNL's Electricity Markets and Policy Group.Savings from electricity, natural gas
In addition to evaluating environmental benefits, the study also assessed other economic impacts of clean energy laws.
For example, the research estimates that RPS policies saved consumers up to $1.2 billion from reduced wholesale electricity prices and $1.3 billion to $3.7 billion from reduced natural gas prices in 2013. Such savings occur because renewable electricity displaces other electricity generation with higher operating costs, the researchers said.
The authors also noted that while the study is national in scope, many of the associated benefits and impacts were regional and even state specific.
For example, the economic benefits from air pollution reductions are associated mostly with reduced sulfur dioxide (SO2) emissions from coal-fired power plants and are concentrated in the Mid-Atlantic, Great Lakes, Northeast and Texas, according to the report. Similarly, reductions in water withdrawal and consumption were largest in California and Texas, both of which experience intermittent drought conditions.
Renewable energy industry officials welcomed DOE's latest study, saying it bolsters the notion that the United States can transition away from more polluting forms of energy without compromising electricity security and reliability.
"It is widely appreciated that wind energy protects the environment by directly displacing the burning of fossil fuels at power plants," Michael Goggin, senior research director at the American Wind Energy Association, wrote in a blog post. "Today's study confirms that wind energy also benefits consumers by keeping electricity and natural gas prices low and protecting against energy price spikes."
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Defiant Ala. Pledges to Wait Out Court Ruling
Jan 7, 2016 | E&E - Energywire
By Kristi E. Swartz
Alabama is waiting for the federal courts to rule on U.S. EPA's Clean Power Plan before the state makes any move on how to comply with it, the state's air division chief said yesterday.
Alabama is one of 27 states that have asked the U.S. Court of Appeals for the District of Columbia Circuit to freeze the landmark rule, which requires a reduction in power-sector carbon dioxide emissions. While many of those other states -- including Alabama's neighbors -- are writing compliance plans despite their legal challenge, Ron Gore at the Alabama Department of Environmental Management (ADEM) said his state will take a different strategy.
"We're waiting until late spring before taking any serious efforts," he told EnergyWire.
A D.C. Circuit decision on whether to stay the rule could come as early as this month. If a stay is not granted, Gore acknowledges, ADEM has a lot of work to do in a short amount of time, as states must file an initial plan by September of this year.
States also can ask for a two-year extension -- only after filing their initial thoughts -- which many have said they intend to do.
"We're going to have to get on the stick and do enough between late spring and September to get our extension from the EPA," Gore said.
Alabama needs to cut its emissions rate by 33 percent from 2012 levels by 2030. The state gets the bulk of its electricity from coal and remains fairly resistant to renewable energy, though its largest utility, Alabama Power Co., buys wind power from other states and has plans to add solar this year.
As a conservative state, Alabama's legal strategy on fighting federal environmental mandates fits with its politics. The state's Public Service Commission, which oversees Alabama Power and other regulated utilities, has railed against the Clean Power Plan and the Obama administration since the rule's inception.
"It has been said that one intends the natural consequences of his actions; Obama clearly intends to harm the citizens and industries of our state and nation," read part of a statement on the PSC's website last August after the final rule was released.
"As a candidate, Obama campaigned on a theme of hope and change," it continues. "As president, Obama has left no hope for Americans who pay for their electricity and is actively seeking to change the United States into a third world country."
The state's inaction could have a ripple effect and unintended consequences should the court not issue a stay, clean energy advocates argue. At the very least, it raises the chances that EPA will wind up assigning the federal compliance plan for Alabama.
"Alabama is taking a big, risky bet with this wait-and-see approach to the Clean Power Plan and leaves itself open to having a federal plan imposed. In addition to the risk of having a poorly conceived, last-minute plan, Alabama may not receive an extension at all," said Amelia Shenstone, campaigns director for the Southern Alliance for Clean Energy (SACE).
ADEM has formed a stakeholder group that includes only the state's regulated electric and gas utilities, Gore said. The group has held no formal meetings.
Michael Churchman, executive director of the Alabama Environmental Council, said his organization, SACE and others met briefly with ADEM before EPA issued the final rule. He wants to include ADEM at an annual energy forum in February to talk about the Clean Power Plan.
"We understand there are extensions available [for state plans], but there needs to public engagement before that happens," he said. "We'd love to help with those meetings."
What's more, Alabama Power's parent is Atlanta-based Southern Co., which also owns and operates electric companies in Florida, Georgia and Mississippi. Each of those states -- as well as all four of Southern's electric companies -- has sued to block the plan, but unlike Alabama, all have participated in stakeholder meetings in their home territories.
For an energy giant like Southern that has four interconnecting states, like-mindedness on Clean Power Plan compliance is critical when it comes to a key feature of the regulation: trading carbon emissions.
States that choose to write a plan have to decide whether they want to pick a rate-based compliance path, which requires generators to meet a specific rate of emissions, or a mass-based one, which means the state would cap emissions and allow generators to purchase allowances to run power plants. States that pick one type of compliance plan cannot trade emissions with states that pick another one. This could put Southern in a tricky position if some of its states pick different plans.
Alabama's wait-and-see strategy at this point adds another layer of uncertainty during key planning phases. The federal plan is basically a federally enforced carbon-trading program. Power companies have stressed that EPA should provide options, but it's unclear whether that will happen (EnergyWire, Nov. 23, 2015).
Gore said Alabama will want to enter into a carbon-trading market at the very least with nearby states. It also would consider broadening that to include states that are farther away, he said.
Georgia's Environmental Protection Division is holding another major Clean Power Plan stakeholder meeting today. The meeting's focus is on EPA's program to provide incentives for early adoption of some renewable energy measures and for energy efficiency measures for low-income households.
Keith Johnston, managing attorney for the Southern Environmental Law Center's Birmingham, Ala., office, praised Georgia and other neighboring states for having an open dialogue despite suing EPA.
Alabama is also "well on its way" to meeting its Clean Power Plan goals, according to SELC's analysis. Cutting certain groups out of the stakeholder process will end up harming the state, Johnston said.
"It hurts the citizens of Alabama when the state agency obviously goes out of its way to exclude them from the process," he said. "The state is so afraid of federal control and overreach, it seems like they are doing their damnedest to have a federal plan implemented, and it baffles me that they are not moving forward with at least other stakeholders keeping the public informed with what's going on with the threat of this federal plan hanging over them."
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Wash. Proposes Cap and Trade for Large Facilities
Jan 7, 2016 | E&E - Greenwire
By Amanda Reilly
The state of Washington yesterday proposed its first-ever limits on carbon dioxide emissions from large facilities.
The plan calls for capping CO2 from emitters of 100,000 or more metric tons of the heat-trapping gas and requiring a 5 percent reduction every three years.
Entities would be allowed to trade pollution allowances to meet the limits, both within the state and through other carbon markets, including California and the Regional Greenhouse Gas Initiative in the Northeast.
"We're trying to offer a wide range of opportunities for folks in the program to get those emissions reductions," said Bill Drumheller, climate and energy specialist at the Washington Department of Ecology.
Gov. Jay Inslee (D) instructed the department to devise the plan to meet the targets set out by a 2008 state law that called for carbon reductions. By 2020, the law calls for the state to reduce overall greenhouse gas emissions to 1990 levels.
The proposal introduced yesterday is a step toward achieving the reductions called for by the Legislature but won't fully achieve the limits because it does not cover all state emissions, said Sarah Rees, the department's special assistant on climate change policy.
"This is only one piece of the puzzle," Rees said. "We need to put multiple strategies in place. The science is telling us that what was projected years ago is happening today, and we need to act now to protect our environment and economy for future generations."
The proposal, which the department aims to finalize this summer, would cover a variety of industries within the state, including natural gas distribution, petroleum fuel production, power plants and waste facilities. Those entities are already required to report yearly greenhouse gas emissions to the state and represent about 60 percent of Washington's greenhouse gas emissions.
Entities would be able to meet the requirements by reducing emissions; obtaining emissions credits from other entities within the state; obtaining credits from other carbon markets in North America; and funding projects, such as the conversion of cow waste to energy at farms, to help reduce emissions within the state.
"If an organization overcomplies, they can bank those emissions reductions to use in future years or sell them to others," Drumheller said. "So there's an incentive to do more than what is required."
The 100,000-metric-ton threshold for compliance would decline over the years.
Rees said state officials shaped the proposal with input from stakeholders and altered their plan in response to concerns.
The state initially was not going to impose carbon limits on fuels that are imported into the state because of data issues, but Rees said that officials heard from stakeholders that the plan would put Washington fuels at a disadvantage. The plan now covers imported fuel but proposes to delay compliance for three years to sort out those data issues.
It also proposes to delay compliance by three years for energy-intensive, trade-exposed industries such as the pulp and paper sector, cement facilities and chemical facilities.
Rees said that the program would not cost the state additional money to administer because it would draw from the state's existing greenhouse gas reporting program.
The carbon proposal is separate from the state's work developing an implementation plan for the Clean Power Plan, U.S. EPA's program for reducing carbon dioxide emissions from existing power plants. But Rees said the same officials are working on both efforts to reduce emissions.
"They are separate reduction requirements, but we're working to make sure the results will also be harmonized within that plan," Rees said. "In fact, we will be having some follow-up meetings with the power sector to talk about specific issues about the Clean Power Plan and this rule's overlap."
Reporter Elizabeth Harball contributed.
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