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Acc Jan 8
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Upton, Shimkus to Discuss TSCA-Update Strategy
Jan 8, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Key House legislators will meet Jan. 11 to discuss priorities including how to reconcile House and Senate bills to update the Toxic Substances Control Act. House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Rep. John Shimkus (R-Ill.), chairman of the energy committee's Environment and the Economy Subcommittee.. -
At-Risk Groups Stressed in Draft EPA Exposure Guidelines
Jan 8, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Draft, updated guidance the Environmental Protection Agency released Jan. 7 to help risk analysts examine people's exposure to chemicals and other stressors emphasizes the need to consider lifestage, geographic location, occupation and other factors that can make some groups more vulnerable than others. -
US Data Shows Higher BPA Exposure From Till Receipts
Jan 7, 2016 | Chemical Watch
A study in Environmental Science and Technology shows US population data confirms that thermal paper till receipts are a significant source of exposure to bisphenol A (BPA). Rebecca Simonne Hehn from the University of California at Berkeley sorted data from the 2003–2004... -
‘Microbeads’ Soon Will Be Banned From Toothpaste And Soaps
Jan 7, 2016 | The Washington Post
By Katherine Shaver
Congress and the White House are coming after your toothpaste, facial scrubs and body wash. Beginning in mid-2017, tiny plastic beads found in some bath and beauty products will be prohibited. The ban, which President Obama signed into law in late December, is aimed at the billions of “microbeads” that some researchers... -
Agencies Offer Up to $1 Million in Toxicity Testing Challenge
Jan 8, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Federal agencies are offering toxicity test developers up to $1 million to modify high throughput screens so the tests predict the toxicity of chemical metabolites. The Environmental Protection Agency, the National Institutes of Health's National Center for Advancing Translational Sciences (NCATS) and the National Toxicology Program, which ... -
Advisers Propose Changes in EPA Fracking Study
Jan 8, 2016 | BNA Daily Environment Report
By Alan Kovski
The Environmental Protection Agency study of hydraulic fracturing risks needs clarifications if it is to justify its summary statement that it found no “widespread, systemic impacts on drinking water resources,” according to a draft review issued Jan. 7 by the EPA Science Advisory Board. -
EPA Science Advisers Buck Agency On Fracking Safety
Jan 7, 2016 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) went too far with its finding that hydraulic fracturing is safe, the agency’s science advisers say. The 31-member Science Advisory Board is taking issue with the EPA’s conclusion in a landmark report from June that there is no evidence that fracking has “led to widespread, systemic impacts on drinking water... -
The U.S. EPA Called Fracking Safe. Now Its Scientists Disagree
Jan 7, 2016 | Bloomberg
By Jennifer A. Dlouhy
A landmark study by the U.S. Environmental Protection Agency that concluded fracking causes no widespread harm to drinking water is coming under fire -- this time, from the agency’s own science advisers. The EPA’s major finding in June’s preliminary report, that there’s no evidence fracking has led to "widespread, systemic impacts on drinking... -
EPA To Release Final Fracking Report This Year, Consider Science Advisers' Recommendations
Jan 7, 2016 | PoliticoPro - Whiteboard
By Elana Schor
EPA plans to release a final version of its high-profile report on fracking and drinking water this year and will consider critical comments released today by its independent science advisers as it shapes the final project, according to a spokeswoman. An EPA spokeswoman, responding to new... -
States Addressed Biofuels, Oil and Gas Drilling in 2015
Jan 8, 2016 | BNA Daily Environment Report
By Tripp Baltz
New policy matters cropped up amid traditional issues of concern in areas of energy, alternative fuels and oil and gas drilling in state legislatures in 2015. Several states advanced bills designed to promote renewable energy, or at least clarify criteria governing siting of facilities, with an eye toward addressing such matters as the effect... -
FERC: Dominion LNG Facility's Impacts Fully Assessed
Jan 8, 2016 | BNA Daily Environment Report
By Rebecca Kern
The Federal Energy Regulatory Commission said in a recent District of Columbia Circuit brief that it has taken a “hard look” at the environmental consequences of Dominion Resources Inc.'s Cove Point liquefied natural gas export facility in response to criticisms from environmental groups that it hasn't done a thorough enough assessment. -
NAFTA Test For Keystone XL Offers Greens New Weapon Against Trade Pacts
Jan 7, 2016 | PoliticoPro
By Elana Schor
The NAFTA challenge to President Barack Obama's rejection of the Keystone XL pipeline comes at an awkward time for the administration's trade agenda, giving the left a new rallying cry to mobilize against the Trans-Pacific Partnership deal that Congress is expected to take up by this summer. -
Pa. Prepares To Finalize Surface-Impact Rules For Marcellus Shale
Jan 8, 2016 | E&E Daily News
By Mike Lee
Pennsylvania's energy regulators are preparing to finalize a controversial set of oil and gas rules, despite opposition from the industry. The Department of Environmental Protection is sending the final version of the so-called Chapter 78 rules to the state Environmental Quality Board, which is scheduled to discuss them at a meeting Feb. 3. -
Oil Industry's Long Give-And-Take With Obama Administration
Jan 8, 2016 | E&E Daily News
The last few years have presented several wins and losses for the oil industry under the Obama administration. While environmentalists say the president's policies prompted the domestic oil production surge, oil companies say they prospered in spite of them. -
Oil Sector Raises Cost, Burden Concerns Over EPA Waste Generator Rule
Jan 7, 2016 | InsideEPA
By Suzanne Yohannan
The oil industry is warning that EPA's proposed update to regulations for hazardous waste generators could create significant costs and burdens for regulated entities, although industry says that some of the planned regulatory changes could make it easier for various sectors to know the mandates with which they must comply. -
No Plan B If Court Blocks Rule -- McCarthy
Jan 7, 2016 | E&E News PM
By Amanda Reilly
U.S. EPA Administrator Gina McCarthy said today she has no "plan B" in case the courts block the agency's Clean Power Plan during litigation as challengers have requested. Speaking at a Council on Foreign Relations event in Washington, McCarthy expressed faith in the legal underpinnings of the rule and said her focus was instead on working with states to craft compliance plans due in September. -
Defiant Ala. Pledges To Wait Out Court Ruling
Jan 8, 2016 | E&E Daily News
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... -
House Passes Bills to Add Steps to Regulatory Process
Jan 7, 2016 | BNA Daily Environment Report
By Cheryl Bolen
The House on Jan. 7 passed by a vote of 244-173 a bill (H.R. 712) that seeks to end the secretive practice of enacting federal regulations through so-called sue-and-settle litigation, one of the chief regulatory priorities of the U.S. Chamber of Commerce. The House then finished debate and passed by a vote ... -
House Passes Regulatory Reform Bills
Jan 7, 2016 | The Hill - E2 Wire
By Lydia Wheeler and Cristina Marcos
The House on Thursday approved Republican-backed regulatory reform bills to curb what they view as costly regulations. The first bill, titled the Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act, passed 245-174. The legislation, introduced by Rep. Jason Smith (R-Mo.), would establish a bipartisan... -
NRDC Sees Frantic Final Push on Environment from Obama
Jan 8, 2016 | BNA Daily Environment Report
By Anthony Adragna
President Barack Obama's administration will work furiously to complete a wave of environmental regulations during his final year in office, defend existing rules in court and set the stage for additional efforts by the next president, officials with the Natural Resources Defense Council said Jan. 7. -
Obama Legacy to Include Energy Efficiency Drive
Jan 8, 2016 | BNA Daily Environment Report
By Jonathan N. Crawford
For a taste of the energy legacy that President Barack Obama is about to leave behind, check the fridge. No, literally. Since 2009, his administration has created 43 rules that will deliver the biggest energy savings of any president in history, eliminating demand in 2030 equal to the electricity produced by 96 power plants... -
EPA Chief: Obama Administration Will Seek To Lock In Climate Gains In 2016
Jan 7, 2016 | The Washington Post
By Joby Warrick
The Obama administration is preparing an ambitious agenda on climate change for its final year in office, pushing ahead on multiple fronts to ensure that the United States keeps its promises to rein in greenhouse gas pollution, the head of the Environmental Protection Agency says. -
Governor Proposes Spending $3.1B In Cap-And-Trade Money
Jan 7, 2016 | E&E News PM
By Anne C. Mulkern
California would spend $3.1 billion in revenues from its carbon cap-and-trade program under the proposed fiscal 2016-17 budget Gov. Jerry Brown (D) released today. The money is part of a projected $170.7 billion spending plan, with cap-and-trade dollars coming from auctions the state holds as part of its effort to cut greenhouse gas pollution. -
House To Take Up Bill Blocking EPA Water Rule
Jan 7, 2016 | The Hill - E2 Wire
By Devin Henry
House Republicans will begin considering a bill next week to block implementation of the Environmental Protection Agency (EPA) rule setting federal regulatory power over waterways. The House Rules Committee said Thursday that it will take up a Congressional Review Act (CRA) resolution blocking the water rule. The Rules Committee is the last... -
California Budget Plan Would Fund Climate, Water Policies
Jan 8, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
California Gov. Jerry Brown proposed Jan. 7 a fiscal year budget for 2016-17 that would allocate $3.1 billion of the state's cap-and-trade revenue to curb greenhouse gas emissions and an additional $212.1 million in general fund monies to prepare for an potential fifth year of drought.
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Full Text of Stories Below
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Upton, Shimkus to Discuss TSCA-Update Strategy
Jan 8, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Key House legislators will meet Jan. 11 to discuss priorities including how to reconcile House and Senate bills to update the Toxic Substances Control Act.
House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Rep. John Shimkus (R-Ill.), chairman of the energy committee's Environment and the Economy Subcommittee, will meet privately Jan. 11 to discuss the subcommittee's 2016 priorities, a committee aide told Bloomberg BNA Jan. 7.
Modernizing the nearly 40-year-old chemicals statute “remains a top priority,” the aide said.
Therefore, strategies House and Senate legislators may use to reconcile their respective bills modernizing TSCA will be among the topics Upton and Shimkus will discuss, the aide said.
By a unanimous voice vote Dec. 17, the Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), which would overhaul TSCA for the first time since it became law in 1976 (244 DEN A-7, 12/21/15).
The House passed its TSCA Modernization Act (H.R. 2576) June 23, 2015, by a 398–1 vote (121 DEN A-1, 6/24/15).
The House returned from its holiday break on Jan. 5, while the Senate returns Jan. 11.
Senators such as Tom Udall (D-N.M.), who worked for years to secure passage of what became S. 697, are gearing up for negotiations between the chambers, an aide for Udall told Bloomberg BNA.
“We don't want to rush the process, but we're hopeful for significant progress relatively soon and look forward to a strong final agreement in 2016,” the aide said.
House and Senate leadership have not decided whether there will be a formal conference committee process, Udall's aide said.
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At-Risk Groups Stressed in Draft EPA Exposure Guidelines
Jan 8, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Draft, updated guidance the Environmental Protection Agency released Jan. 7 to help risk analysts examine people's exposure to chemicals and other stressors emphasizes the need to consider lifestage, geographic location, occupation and other factors that can make some groups more vulnerable than others.
The EPA released for comment by Feb. 22 draft updated Guidelines for Human Exposure Assessment (81 Fed. Reg. 774). The agency last updated that guidance in 1992.
The newly released draft update incorporates advances made in exposure assessment since 1992 and recommends exposure assessment approaches offered by the National Academies of Sciences, Engineering, and Medicine along with the EPA's Science Advisory Board.
When issued as final, the guidance is intended for use by agency risk assessors, consultants and contractors performing assessments for the agency. Other users include state risk assessors, companies and academic scientists who conduct assessments in accordance with EPA's policies, and procedures.
Industrial facilities, for example, assess the risks of their manufacturing, chemical storage and other activities to identify potential liabilities and ways to reduce risks.
Expanded Recommendations
The updated guidance recommends risk assessors consider a number of issues that were not mentioned in 1992 or received less emphasis at that time.
For example, the draft includes a new chapter urging exposure assessors to be aware of environmental justice issues, including unique population characteristics and sociodemographic factors that could increase exposure or predispose a lifestage, vulnerable group or population to greater risk. These factors may include age, sex, genetic susceptibility, cultural characteristics, behaviors, occupation, socioeconomic status, race/ethnicity and geographic location.
The updated guidance significantly expands the agency's recommendations to hold a planning, scoping and problem formulation stage before beginning to assess exposure.
Elements of this planning, scoping and problem formulation stage include establishing goals and objectives; building an interdisciplinary team; developing a conceptual model; identifying assessment options, available resources and data needs; producing an overall assessment plan; engaging and involving appropriate stakeholders; engaging and involving the community; establishing data quality objectives; and conducting peer review.
The team that will conduct the risk assessment, which includes exposure assessment, should discuss whether its planned analysis approach should be peer reviewed. Subsequent peer reviews would be considered as the assessment reaches specific milestones, according to the draft guidance.
The updated guidance also expands the factors risk assessors should consider in deciding how much uncertainty and variability is in their exposure assessment and how they can characterize that uncertainty and vulnerability.
For example, a chart lists misclassification, incompleteness and 11 other errors that can result from various types of uncertainty.
Emerging Topics to Be Addressed as They Mature
The guidance is general and does not endorse specific exposure assessment models or approaches.
Nor does it delve into the agency's efforts to use databases, software algorithms and other computational tools to conduct high throughput screening exposure assessments. “As these emerging topics mature, the Risk Assessment Forum will update this document,” the guidance said.
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US Data Shows Higher BPA Exposure From Till Receipts
Jan 7, 2016 | Chemical Watch
A study in Environmental Science and Technology shows US population data confirms that thermal paper till receipts are a significant source of exposure to bisphenol A (BPA).
Rebecca Simonne Hehn from the University of California at Berkeley sorted data from the 2003–2004 US National Health and Nutrition Examination Survey (Nhanes) according to occupation. She then compared it with urinary BPA excretion levels.
Individuals with potential occupational exposure to thermal paper receipts were found to be significantly more likely to have detectable levels of urinary BPA compared to individuals with unlikely occupational exposure (p-value <0.001).
Women with potential occupational exposure to till receipts also had on average over twice the level of urinary BPA compared to those with unlikely occupational exposure. There was no statistically significant association between occupation and urinary BPA excretion among men.
The results suggest that BPA from thermal paper should be considered when determining exposures to the substance.
The European Commission is currently deciding whether to proceed with a restriction on BPA in till receipts. It has two Opinions to consider. Echa’s Risk Assessment Committee (Rac) backed a French proposal for a restriction because of risks to occupationally exposed pregnant women (CW 11 June 2015). However, the Socio-economic Assessment Committee (Seac) came to a more neutral position (CW 9 December). A decision is expected in March.
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‘Microbeads’ Soon Will Be Banned From Toothpaste And Soaps
Jan 7, 2016 | The Washington Post
By Katherine Shaver
Congress and the White House are coming after your toothpaste, facial scrubs and body wash.
Beginning in mid-2017, tiny plastic beads found in some bath and beauty products will be prohibited. The ban, which President Obama signed into law in late December, is aimed at the billions of “microbeads” that some researchers estimate wash down U.S. drains every day, slip through sewage treatment plants and end up being eaten by fish in lakes, rivers and oceans.
“This is huge,” said Julie Lawson, executive director of Trash Free Maryland, an environmental group that helped push through a state ban on microbeads last year. “We’re not trying to get these products off the shelves. We’re trying to get manufacturers to change the way they make them.”
The tiny plastic beads are most often used as mild abrasives to exfoliate skin and strip away dirt and oil. They also put the colorful sparkle in some toothpastes and help fill in wrinkles in some “age-defying” make-up. Congressional researchers say hundreds of products contain microbeads and that a single bottle or tube can have hundreds of thousands of the tiny particles.
Once they wash down drains and reach sewage treatment plants, they can slip through filters that weren’t designed for such small particles and end up discharged into waterways, where they look like tiny eggs. Fish that eat them can suffer problems, researchers say, and end up on dinner plates.
Drinking water drawn from the same waterways with the beads isn’t considered a risk, environmental activists say, because water filtration plants screen out smaller contaminants than sewage treatment facilities.
“They are so small, and there are so many of them,” said George S. Hawkins, general manager of D.C. Water, which provides drinking water in Washington and sewage treatment for the city and surrounding suburbs. “The worry was they’re getting through our systems and into rivers and becoming part of the food chain.”
While there’s been relatively little research into the prevalence of beads in waterways, the problem drew national attention in 2013, after a study found colorful microbeads in the Great Lakes. A 2015 study estimated that, nationwide, 808 billion beads are washed down drains daily. Up to 99 percent of those probably settle out at the sewage treatment plant and end up in leftover sludge, those researchers said. However, even the relatively scant numbers that get through treatment plants amount to an estimated 8 billion daily reaching waterways, the study found.
John Hurson, who oversees government affairs for the Personal Care Products Council, said manufacturers can replace the beads with natural materials, such as sand, sugar or ground-up walnut shells. It’s unclear how the change will affect product costs, he said.
He said companies used the plastic beads because they’re safe, non-allergenic and gentle on the skin. But he said some companies, particularly European manufacturers, began discontinuing them voluntarily in the early 2000s, after a late-1990s study raised the possibility that they were getting through sewage treatment facilities.
Hurson said the industry is responsible for a “minuscule portion” of microplastics found in waterways because they also come from clothing fibers, boat paint particles and degrading plastic bags and bottles. Even so, he said, the industry supported environmental groups’ calls for a national standard on microbeads after at least eight states passed similar bans in the past two years.
“It made sense to us to be very supportive of a national phaseout,” Hurson said.
Even with limited scientific data on a relatively new issue, the legislation enjoyed an unusual level of bipartisan support, sailing through Congress with little controversy.
“This is a very strange example of the policy being quicker than the science,” said Chelsea Rochman, one of the researchers on the 2015 study. “But we know enough about microplastics to know they’re a concern for wildlife.”
The federal ban, activists said, goes further than the state laws because it takes effect sooner and doesn’t allow exceptions. It pertains only to microbeads in toothpaste and “rinse-off” products, so it doesn’t cover those in deodorants, lotions or make-up. It also doesn’t affect plastic abrasives in household cleaners.
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Agencies Offer Up to $1 Million in Toxicity Testing Challenge
Jan 8, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Federal agencies are offering toxicity test developers up to $1 million to modify high throughput screens so the tests predict the toxicity of chemical metabolites.
The Environmental Protection Agency, the National Institutes of Health's National Center for Advancing Translational Sciences (NCATS) and the National Toxicology Program, which is managed by the National Institute of Environmental Health Sciences, plan to launch a Transform Tox Testing Challenge on Jan. 8.
Under the challenge, the agencies will invite biotech and other companies, academic researchers, federal agency researchers and nongovernmental organizations to compete in a three-stage challenge (see chart).
Participants would receive up to $1 million to modify high throughput screens so the tests predict toxicities that may result from chemical metabolites.
Solution Sought for Missing Part
“Right now, we're missing a significant part of the [toxicity] picture,” Rusty Thomas, director of the EPA's National Center for Computational Toxicology, told Bloomberg BNA Jan. 7.
Most of the automated high throughput screens that researchers use to determine when a chemical activates, deactivates or perturbs cellular function analyze solely the effects of the “parent chemical” to which the cells are exposed, he said.
When chemicals are ingested or inhaled by living organisms, however, they are rapidly broken down into metabolites by the liver and through other biological processes, Thomas said.
The inability of high throughput tests to mimic the biological process and break chemicals down into their metabolites means the tests could miss perturbations that are caused by the metabolite rather than the parent chemical, he said.
If successful, the Tox Testing Challenge would improve the relevance and predictive capacities of automated tests that can quickly and simultaneously evaluate hundreds, even thousands, of chemicals.
Better Tests, Increased Health Protection
Better tests mean researchers could “more accurately assess chemical effects and better protect human health,” the agencies said on a website announcing the testing challenge.
The participating agencies have not often run competitive challenges such as this, said Thomas, who said he has been working to develop the competition since he became the EPA center's director in September 2013.
As this is the agencies' first venture into a technology competition, Thomas said he doesn't have a sense of how many applicants they will get.
“ I would be happy if we had more than a dozen. I'd be ecstatic if we had a couple of dozen,” Thomas said.
The challenge is divided into three stages that whittle down the original participants to a single organization that could be awarded up to $400,000 to deliver a method or device that will add metabolic capacity to high throughput screens.
The three agencies haven't set a hard deadline by which participants must complete the challenge, according to Thomas.
Ideally, a solution could be found in about a year and a half, he said, but “the main goal, however, is to get a good solution.”
The three funding agencies are inviting a range of organizations to participate because potential solutions could come from many places, Thomas said.
While the competition is proceeding, the funding agencies will continue their own research to add metabolic capacity to high throughput screens, he said.
More Than One Solution Envisioned
Eventually, Thomas envisions several methods or technologies being developed that can address metabolism in different stages of a chemical's absorption, metabolism and distribution through the body.
The Tox Testing Challenge is the latest development in a multiyear research effort federal agencies launched after the National Academies of Sciences, Engineering, and Medicine issued its 2007 report, Toxicity Testing in the Twenty-First Century: A Vision and a Strategy.
Since then, federal agencies and biotech companies have refined various technologies so researchers can use them to quickly and simultaneously determine the potential of chemicals, pharmaceuticals, food additives or other compounds to activate, deactivate or perturb various cellular functions.
A key example is the Tox21 program, a high-throughput robotic screening system housed at NCATS that researchers have been using to test 10,000 chemicals and pharmaceuticals (48 DEN A-14, 3/11/11).
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Advisers Propose Changes in EPA Fracking Study
Jan 8, 2016 | BNA Daily Environment Report
By Alan Kovski
The Environmental Protection Agency study of hydraulic fracturing risks needs clarifications if it is to justify its summary statement that it found no “widespread, systemic impacts on drinking water resources,” according to a draft review issued Jan. 7 by the EPA Science Advisory Board.
The summary statement was applauded by oil and gas industry officials and decried by environmental activists when the 998-page study was released June 4. It bothered the SAB review panel because of uncertainty about exactly what the statement meant.
“The statement is ambiguous and requires clarification and additional explanation,” the SAB draft review said.
The science advisers said major statements of findings in the EPA report needed more precision and a better discussion of the data limitations and uncertainties in the subject.
The advisers on the review panel will rework their draft until they have a final to submit to the full Science Advisory Board for consideration, likely in the spring. The full SAB may make additional changes before the review goes to the EPA. After that, the EPA will consider changes to its “draft final report” before issuing an entirely final version.
Water Volumes, Prominent Cases
The draft review from the SAB panel listed numerous possible points of improvement for the EPA study on fracking risks to drinking water.
The EPA study should do a better job of emphasizing water supply strains from fracking, the draft review said. “Local-level hydraulic fracturing impacts can be severe, and the draft Assessment Report needs to do a better job of recognizing the importance of local impacts,” the draft review said.
Fracking involves the pumping of water, sand and chemical additives into geologic layers to create fracture pathways for the flow of oil or natural gas. Because several million gallons of water may be used for fracking one well, it has been understood for some time that the practice could prove problematic in arid regions.
The science advisers, like many environmental and local activists, urged inclusion in the EPA study of information about water problems blamed by some residents on gas production in Dimock, Pa., Pavillion, Wyo., and Parker County, Texas. Examination of the “high-visibility cases” could be important to public perceptions and understanding, the draft review said.
That drew a stinging response from Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, who issued a statement calling it an “irresponsible and a purposeful interjection of bad science.”
The three cases are the most politicized local controversies connected to fracking, and a complete resolution of the details was not achieved by the EPA, much to the frustration of activists and some lawmakers (63 DEN A-5, 4/2/14).
Better Risk Analysis Wanted
The advisers wanted more attention to the risks of severe accidents such as blowouts, which may be infrequent but can have substantial local impacts. Beyond that, the advisers recommended more attention to any well failures.
“The EPA should also clearly describe the probability and risk associated with hydraulic fracturing well injection-related failure scenarios and mechanisms,” the draft review said.
The EPA study noted many possibilities for public exposure to fracking fluids, but the science advisers wanted the possibilities considered more systematically, with attention to probability. “The agency should identify the most likely exposure scenarios and hazards,” the draft review said.
During discussions in October and December, the science advisers repeatedly expressed concerns about generalities that did not adequately address the likelihood and severity of risks (234 DEN A-17, 12/7/15).
Much More Data Wanted
The SAB draft review called for some details that the EPA had explicitly said it did not try to include in its study, such as best management practices.
“The SAB recommends that the agency describe best management practices used by industry,” the draft review said.
The EPA tried to circumscribe how deeply it delved into toxicological data concerning fracking chemicals, but the science advisers called for more such data.
The EPA study considered wastewater handling, but the science advisers called for far more information.
The draft review said the study should have more information on wastewater volumes, locations of disposal sites and methods, trends in disposal methods and much more.
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EPA Science Advisers Buck Agency On Fracking Safety
Jan 7, 2016 | The Hill - E2 Wire
By Timothy Cama
The Environmental Protection Agency (EPA) went too far with its finding that hydraulic fracturing is safe, the agency’s science advisers say.
The 31-member Science Advisory Board is taking issue with the EPA’s conclusion in a landmark report from June that there is no evidence that fracking has “led to widespread, systemic impacts on drinking water resources in the United States.”The panel came out with an initial 133-page draft of its report on the study Thursday, saying that the main conclusion of the EPA’s findings does not follow the actual data that it precedes.
“The SAB finds that this statement does not clearly describe the system(s) of interest (e.g., groundwater, surface water) nor the definitions of ‘systemic,’ ‘widespread,’ or ‘impacts,’ ” the advisory panel said.
“The statement is ambiguous and requires clarification and additional explanation,” the scientists wrote, adding that the main conclusions “are inconsistent with the observations, data, and levels of uncertainty presented and discussed in the body of the draft assessment report.”
The panel’s members have been vocal about criticizing report in recent months. They plan to finalize their findings Feb. 1 and forward them to EPA leaders for their consideration.
EPA spokeswoman Melissa Harrison said the agency looks forward to receiving their contributions.
“The agency uses robust peer review to ensure the integrity of our scientific products,” she said. “We will use the comments from the SAB, along with the comments from members of the public, to evaluate how to augment and revise the draft assessment.”
The Thursday report was a victory for environmentalists who have said the EPA’s June analysis looked far too favorable to the oil and natural gas industry. The substance of the analysis documented a number of cases in which fracking and its related processes affected water supplies, but those were overshadowed.
“There was a clear disconnect between the EPA’s top-line spin — that there was no evidence of ‘widespread, systemic’ impacts on drinking water from fracking — and the content of the actual study, which highlights data limitations, open questions and clear evidence of local and severe impacts,” Wenonah Hauter, executive director of Food and Water Watch, said in a statement, adding that she is glad that the science advisers wanted to highlight fracking’s problems.
The oil and gas industry trumpeted the EPA report as a major endorsement of fracking, and industry officials want to make sure it doesn’t take a negative turn.
Jack Gerard, head of the American Petroleum Institute, accused fossil fuel opponents of trying to inject their ideology into the EPA’s science.
“The science should be settled,” Gerard said of the science board’s actions. “There are a handful of people who are not happy with the outcome, and they continue to drive their agenda based on ideology, not based on the science.”
Fracking injects water, sand and chemicals into the ground high pressures to free oil and gas that is trapped in rock formations.
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The U.S. EPA Called Fracking Safe. Now Its Scientists Disagree
Jan 7, 2016 | Bloomberg
By Jennifer A. Dlouhy
A landmark study by the U.S. Environmental Protection Agency that concluded fracking causes no widespread harm to drinking water is coming under fire -- this time, from the agency’s own science advisers.
The EPA’s major finding in June’s preliminary report, that there’s no evidence fracking has led to "widespread, systemic impacts on drinking water," was seen as a vindication of hydraulic fracturing. A repudiation of the results could reignite the debate over the need for more regulation.
Members of the EPA Science Advisory Board, which reviews major studies by the agency, said in a report released Thursday the agency’s main conclusion "is ambiguous and requires clarification."
The major findings "are inconsistent with the observations, data and levels of uncertainty" presented in the rest of EPA’s water study, the 31-member panel said. The panel will deliberate over the draft recommendations it issued Thursday during a public teleconference Feb. 1, and possibly further revise them before sending final advice to EPA.
The scientific panel’s recommendations aren’t binding and the EPA is not required to change its study to accommodate them. But they already are raising questions about the most comprehensive assessment yet of a practice that has driven a domestic oil and gas boom but also spawned complaints about water contamination.
An EPA spokeswoman said the agency will use comments from the scientists and the public to "evaluate" possible changes to the report.
Oil Exports
A significant change could be a big blow to an industry that is celebrating major policy wins, including the end of trade restrictions that for four decades blocked the export of most raw, unprocessed U.S. crude.
Fracking, also known as hydraulic fracturing, involves pumping water, sand and chemicals underground to free oil and gas trapped inside dense rock formations.
For the congressionally mandated study, the EPA analyzed more than 3,500 sources of information, including previously published papers, state reports and the agency’s own scientific research, but found no clear evidence that the fracking process itself could cause chemicals to flow through underground fissures and immediately contaminate drinking water. The agency did say that injecting fluids into formations that also contain drinking water resources "directly affects the quality of that water."
When the agency took a broader look at the entire water cycle around fracking -- from getting water supplies to disposing of fluid waste -- it documented instances where failed wells and above-ground spills may have affected drinking water resources.
Peer Review
Robust peer review by the EPA’s Science Advisory Board, established by Congress in 1978, is designed to ensure the integrity of scientific reports, agency spokeswoman Melissa Harrison said in an e-mail.
She said the agency will use the comments from the advisory panel, as well as those submitted by the public, "to evaluate how to augment and revise the draft assessment."
"The final assessment will also reflect relevant literature published since the release of the draft assessment," Harrison said.
For now, advisory board members want the final document to include more information about alleged contamination near drilling sites in Dimock, Pennsylvania, Parker County, Texas, and Pavillion, Wyoming -- places "where hydraulic fracturing activities are perceived by many members of the public to have caused significant local impacts to drinking water sources."
High Visibility
"Examination of these high-visibility cases is important," the panel said, "so the public can understand the status of investigations in these areas, conclusions associated with the investigations, lessons learned for hydraulic fracturing practice if any, plans for remediation if any, and the degree to which information from these case studies can be extrapolated to other locations."
Wyoming’s Department of Environmental Quality said in a report last month that there is a "negligible" likelihood that fracking was to blame for any water contamination in Pavillion. Senator James Inhofe, a Republican from Oklahoma, said Wyoming’s report supports EPA’s broad national conclusions last year.
"It is inexplicable why the Science Advisory Board has encouraged EPA to incorporate their three discredited studies into the agency’s final water study," Inhofe said in a statement on Thursday. "It is irresponsible and a purposeful interjection of bad science in order to distort the factual narrative.”
The review panel’s request for EPA to clarify its top-line finding was foreshadowed during public meetings in October. When one of the panelists –- University of California engineering professor Thomas Young –- suggested a rewrite, the group broke out in spontaneous applause.
‘Science Settled’
Industry lobbyists and trade groups are working to tamp down the panel’s criticism, with American Petroleum Institute president Jack Gerard casting it as the work of determined environmental activists opposed to fossil fuels.
“The science should be settled,” Gerard told reporters at a news conference Tuesday. “There are a handful of people who are not happy with the outcome, and they continue to drive their agenda based on ideology, not based on the science."
The API and the Independent Petroleum Association of America delivered a similar message in separate letters to the EPA.
Scott Segal, head of the policy resolution group at Bracewell & Giuliani in Washington, and a lobbyist who represents Range Resources Corp. and other energy companies, said in an interview that the review board should disregard “anecdotal evidence presented by litigants in active cases.” By contrast, he added, “the overwhelming weight of scientific evidence is on the side of the regulated community.”
Spill Data
Science advisers reviewing EPA’s fracking report praised the agency’s "overall approach" and said the document provided "a generally comprehensive overview" of the issue. But more research, including long-term, prospective studies, are also needed, the group said in its draft recommendations.
Panel scientists previously said the evidence doesn’t support the conclusion about water safety.
Spill data alone "gives sufficient pause to reconsider the statement” that there’s no evidence of systemic, widespread damage, said panelist Bruce Honeyman, professor emeritus at the Colorado School of Mines.
"It’s important to characterize and discuss the frequency and severity of outliers that have occurred,” said panelist Katherine Bennett Ensor, chairwoman of the Rice University Department of Statistics.
And panel member James Bruckner, a professor of pharmacology and toxicology at the University of Georgia, said the report glosses over the limited data and studies available to the agency.
"I do not think that the document’s authors have gone far enough to emphasize how preliminary these key conclusions are and how limited the factual bases are for their judgments," Bruckner said.
Young, the University of California professor who suggested rewriting the top-line conclusion, faulted the document for trying “to draw a global and permanent conclusion about the safety or impacts of hydraulic fracturing at the national level” given the “uncertainties and data limitations described in the report."
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EPA To Release Final Fracking Report This Year, Consider Science Advisers' Recommendations
Jan 7, 2016 | PoliticoPro - Whiteboard
By Elana Schor
EPA plans to release a final version of its high-profile report on fracking and drinking water this year and will consider critical comments released today by its independent science advisers as it shapes the final project, according to a spokeswoman.
An EPA spokeswoman, responding to new recommendations from the agency's Science Advisory Board for greater "clarity and adequacy" on the broad findings of the six-month-old fracking report, also noted that those SAB comments would take final form in a report set for release sometime this spring.
"The agency uses robust peer review to ensure the integrity of our scientific products," the EPA spokeswoman said. "We will use the comments from the SAB, along with the comments from members of the public, to evaluate how to augment and revise the draft assessment."
The final edition of the fracking report "will also reflect relevant literature published since" June, when EPA's initial report finding no "widespread, systemic" drinking water impact from fracking was released.
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States Addressed Biofuels, Oil and Gas Drilling in 2015
Jan 8, 2016 | BNA Daily Environment Report
By Tripp Baltz
New policy matters cropped up amid traditional issues of concern in areas of energy, alternative fuels and oil and gas drilling in state legislatures in 2015.
Several states advanced bills designed to promote renewable energy, or at least clarify criteria governing siting of facilities, with an eye toward addressing such matters as the effect of wind energy on agriculture, for example.
Other states considered laws and rules addressing pipelines, an area with some regulatory uncertainty, because some oil and natural gas gathering lines aren't covered by existing state and federal rules. Water used in fracking was at the center of a bill in Pennsylvania, while biofuels garnered the attention of lawmakers in New Jersey.
Of significance were a handful of bills that didn't move forward on the topic of local drilling regulatory authority—up to and including bans and moratoriums on hydraulic fracturing—in Texas, Colorado, Oklahoma and elsewhere.
New Pipeline Rules in California
New laws targeting oil and gas production and activities grew out of the May 19 rupture of the Plains All American Pipeline that discharged more than 100,000 gallons of crude and petroleum along the coast north of Santa Barbara, some of it spilling into the Pacific Ocean.
Under one such bill (A.B. 864), beginning in 2018, new or replacement oil pipelines near environmentally and ecologically sensitive areas along the state's coast must use leak-detection systems and other technologies to reduce the impact of potential spills. The law also requires oil pipeline operators in sensitive areas to submit plans for retrofitting existing facilities by July 1, 2018, and to complete the retrofits by Jan. 1, 2020.
Another pipeline bill (A.B. 1420) requires state oil and gas regulations to prescribe minimum standards for oil and gas production facilities, including pipelines. Under the law, the Department of Conservation's Division of Oil, Gas and Geothermal Resources (DOGGR) has until Jan. 1, 2018, to evaluate and update as needed existing regulations for all underground active gas pipelines that are four inches or less in diameter located in sensitive areas that are 10 years old or older.
S.B. 295 requires the state fire marshal to adopt regulations to carry out annual inspections of intrastate pipelines and operators of those facilities within its jurisdiction beginning in 2017. S.B. 414 requires the California Office of Spill Prevention and Response (OSPR) to update, by July 1, 2018, regulations to improve oil spill preparedness and response. The law also requires OSPR to work with the U.S. Coast Guard to identify the best available technologies to prevent spills and respond to them.
In the area of renewable energy, California Gov. Jerry Brown (D) signed a bill (S.B. 350) moving forward his goal, announced in January 2015, to boost the state's renewable energy standard, now at 30 percent by 2020, to 50 percent by 2030. The measure also aims to double the energy efficiency of existing buildings by 2030.
A related bill, A.B. 802, requires the California Public Utilities Commission to clear the way for the state's investor-owned utilities to offer incentives to make existing buildings more energy efficient and then recoup the costs through reasonable rates.
It also requires utilities to maintain records on the energy use of buildings they service. The new law repeals a provision in existing law requiring owners or operators of commercial buildings to disclose energy performance information upon the sale or lease of a building.
Other California Bills
Other energy-related legislation in California included:
• A.B. 692, requiring state agencies that use vehicle fuels to buy a minimum of 3 percent of very low carbon fuels a year, beginning January 2017, and then increasing that amount by 1 percent a year, as long as it's feasible and the fuels perform adequately;
• A.B. 693, creating a program offering financial incentives for solar installations at multifamily affordable housing projects;
• A.B. 793, requiring retail electric and gas companies to develop incentive programs by June 30, 2016, that encourage customers to use energy management technologies;
• A.B. 876, requiring county and regional agencies to include organic waste recycling facilities in their existing solid waste management planning activities, as a way to reduce methane emissions;
• A.B. 1034, encouraging surface mine operators to consider construction of renewable energy generation facilities on disturbed land, as an interim use to reclaiming mined land;
• A.B. 1045, requiring the California Environmental Protection Agency to create policies to encourage recycling of organic waste and directing state air and water regulators and the Department of Food and Agriculture until 2017 to develop recommendations that promote organic waste processing technologies and a related infrastructure;
• A.B. 1236, requiring cities and counties to create an expedited permitting and inspection process for the installation of electric vehicle charging stations;
• A.B. 1269, extending until 2021 sales and use tax exclusions for projects that promote advanced manufacturing in California, reduce greenhouse gas emissions or curb air and water pollution and energy consumption;
• A.B. 1482, requiring the Natural Resources Agency to update the state's climate adaptation plan by July 1, 2017, and then again every three years. The law also creates a framework for the Resources Agency to coordinate adaptation efforts with other state agencies.
• A.B. 1496, requiring the California Air Resources Board to monitor high-emission methane hot spots and complete a study review of scientific information on the atmospheric reactivity of methane as a precursor to the formation of photochemical oxidants;
• S.B. 246, establishing an Integrated Climate Adaptation and Resiliency Program to coordinate regional and local adaptation efforts with state planning;
• S.B. 379, requiring cities and counties by 2017 to include climate risk assessments and adaptation strategies in general hazard mitigation plans. Local agencies without the plans would have until 2022 to identify risks and adaptation strategies;
• S.B. 513, authorizing regional air districts, except in Sacramento, to levy motor vehicle registration fees that can be used on projects to bring the areas into attainment with federal and state air pollution standards. The measure allows vehicle registration fees in the Sacramento area to be used to help fund alternative fuel and electric infrastructure; and
• S.B. 758, requiring studies on climate forecasting and the causes and impacts of atmospheric rivers to learn how information about these long, narrow bands of moisture that travel one mile above the ocean can be used to better operate reservoirs to improve flood protection and improve management of water storage facilities.
Oil and Gas Measures in Colorado
In Colorado, perhaps the most noteworthy energy bills of the 2015 General Assembly were the oil and gas measures that didn't survive the session.
Lawmakers scuttled a bill (S.B. 93) that would have required local governments to compensate mineral rights owners when a local ordinance or rule—including a ban on hydraulic fracturing—reduces the fair market value of the resource.
They also killed a measure (H.B. 1119) that would have provided for the compensation of a royalty owner when a local ordinance, resolution or other policy prohibits the practice of hydraulic fracturing to recover oil and gas within a local government's jurisdiction.
Governor's Task Force
Legislators in Colorado did not propose legislation addressing recent conflicts between the state and local governments over community regulation of fracking and other drilling activities.
Instead, all eyes were on a special Task Force convened by Gov. John Hickenlooper (D) designed to address siting of large drilling facilities. The task force made recommendations now being considered by the state Oil and Gas Conservation Commission.
Additionally, the question of local control over drilling is at the center of two court cases now pending before the Colorado Supreme Court (Longmont v. Colorado Oil and Gas Ass'n., (Colo., No. 15SC668, petition for writ of certiorari (2015)).
The cases concern appeals of lower court rulings that a fracking ban in Longmont and a similar moratorium in Fort Collins violated the state's Oil and Gas Conservation Act. Oral arguments in the two cases were heard by the court Dec. 9.
Other Colorado Bills
Other energy bills approved in 2015 in Colorado include:
H.B. 1219, allowing a taxpayer who places a renewable energy project in an enterprise zone and receives certification to claim an Enterprise Zone Investment Tax Credit (ITC) for the project an option to receive a refund of the credit. The amount of the refund is equal to 80 cents for every one dollar of ITC credit and is capped at $750,000 per tax year and taxpayer.
H.B. 1364, clarifying that limited inspections apply to small hydroelectric facilities governed by a 2014 bill (H.B. 1030) that amended the inspection standards for small hydroelectric generation equipment to align with the minimum standards in the 2011 National Electrical Code for small wind electrical production.
H.B. 1377, allowing generation from shared generation facilities using other renewable energy technologies, including small wind, small hydroelectric, geothermal, and biomass, to count against the retail distribution requirements for cooperative electric associations under certain conditions.
S.B. 254, extending the deadline to Dec. 31, 2016, for municipally owned utilities under certain circumstances to meet Colorado's renewable energy standard.
Bills in Illinois
The Illinois General Assembly took action on four bills pertaining to the procurement and development of renewable energy.
S.B. 3560 creates the Utilization of Renewable Energy on State-Owned Properties Task Force to “consider the financial implications of installing and maintaining renewable energy facilities on State-owned property, the impact on property values and the community, and environmental factors relating to renewable energy.”
The law requires the task force to develop a final report, including recommendations for further use of renewable energy on state land. The report must be presented to the governor and the Illinois General Assembly on or before Sept. 1, 2016.
Standards for Wind Farms
S.B. 920 amends the state municipal code to clarify that counties and municipalities have full authority to establish standards for wind farms and electric-generating wind devices “notwithstanding any other provision of law.”
H.B. 3523 creates the Wind Energy Facilities Construction and Deconstruction Act, specifying that operators of commercial wind energy facilities located on private property must enter into “agricultural impact mitigation agreements” with the Department of Agriculture. Such agreements must describe construction and deconstruction plans to help preserve the integrity of any land that is impacted.
The law further specifies that the impact agreements must be approved by the agriculture department before any public hearings with a county or municipality. Supporters of the measure stressed it would maintain land integrity and protect local farmers and landowners.
S.B. 1312 requires the state to more actively examine its use of solar power. It requires the Illinois Commerce Commission to develop annual reports on the adoption of solar photovoltaic systems by residential and small business consumers across the state.
Under the law, the ICC must provide a description of barriers to residential and small business consumers' financing, installation and valuation of energy produced by solar photovoltaic systems. The law also requires electric energy suppliers to provide any information requested by the commission for this analysis.
New Jersey Net Metering
In New Jersey, the Legislature approved a bill (S-2420) increasing electric power net metering capacity threshold to a specified percent of total annual kilowatt hours sold in the state. Net metering allows electricity customers who generate their own electricity using solar, wind and other forms of renewable energy to “bank” excess electricity on the grid in the form of kilowatt hour credits. These credits can be used by customers as needed.
Another New Jersey measure (S-2599) is designed to spur the development of biofuels in the state. The law provides a definition of bio-based liquid fuel and biodiesel fuel.
“Until now, New Jersey was one of only two states in the U.S. without statutes in place for converting natural fats, greases and plants into renewable, clean biofuel in an environmentally friendly way,” Assemblywoman Holly Schepisi (R), one of the bill's sponsors, said in an Aug. 17 statement after the bill was signed into law.
North Carolina Tax Credit
Lawmakers in North Carolina approved a bill (S.B. 372) providing a tax credit of 35 percent of the cost of constructed, purchased or leased renewable energy property.
They also approved a measure (H.B. 157) stipulating the state Environmental Management Commission need not regulate toxic air emissions from oil and natural drilling operations unless the commission determines that general state and federal air toxics regulations provide inadequate environmental protection.
Oklahoma Bill Addresses Local Rules
Gov. Mary Fallin (R) signed a bill (S.B. 809) curbing municipal efforts to regulate oil and gas operations, touted by the state as reaffirming the state as the sole regulator of Oklahoma's oil and natural gas industry.
The law took effect with the governor's signature, allowing the state oil and gas regulator—the Oklahoma Corporation Commission—to control rules on oil and gas while giving municipalities room to establish “reasonable setbacks” as long as they don't “prohibit or ban” oil and gas operations.
While welcomed by local oil and gas interests, Oklahoma Sierra Club Director Johnson Bridgwater said it was “unfathomable” that Oklahoma would respond to increased levels of seismicity by enacting legislation “that assures local governments in our state will lose their authority to fully regulate and address the very industries that are being identified as the cause of the biggest threat and safety concern to all of these communities and their residents.”
Oregon Low-Carbon Fuel Standard
Democratic lawmakers in Oregon beat back efforts in 2015 by Republican colleagues to derail the state's progress toward implementing a low-carbon fuel standard.
With majorities in both the House and the Senate, Democrats passed S.B. 324 March 4, which lifted a Dec. 31, 2015, sunset on the Oregon Clean Fuels program established in 2009. Its passage means Oregon—which had so far only collected data on the quantity and type of fuels being used in the state—is moving toward implantation of the low-carbon standard.
The program is based on California's low-carbon fuel standard and calls for importers of transportation fuels to cut average carbon intensity of the fuels. The size of the cuts will ramp up over the years until the goal of a 10 percent reduction by 2025 in the life cycle carbon intensity of the fuels is met.
In 2015, importers continued to report on the types and volumes of fuel imported into the state. Cory-Ann Wind, an air quality planner for the Oregon Department of Environmental Quality, told Bloomberg BNA just after the bill passed that beginning in 2016, there will be a 0.25 percent reduction in the carbon intensity of imported fuels.
The program allows providers of clean fuels such as biodiesel to generate and sell credits to importers. Oregon, which has no refineries, imports fuel from Washington, Utah and California.
Pennsylvania Mine Drainage Bill
Pennsylvania Senate Bill 875, now Act 47 of 2015, clarifies legal liabilities for acid mine drainage that is treated and re-used in conventional or unconventional oil and gas wells.
The new legislation gives immunity to mine operators who provide treated mine water for drilling operations as long as the water is used outside the boundaries of the mining area, is used for oil and gas well development and is used by someone other than the mine operator.
Oil and gas developers who use the water will be immune from liability to treat it, according to the bill.
Nothing in the bill limits liabilities for unlawful spills or releases of treated mine water or relieves the mine operator or well developer of other legal obligations.
Hydraulic fracturing of Marcellus Shale in Pennsylvania uses an average of 4.5 million gallons of water per well; proponents say the bill will save fresh water.
Tennessee Emissions
S.B. 1325 requires the Tennessee Advisory Commission on Intergovernmental Relations, upon submission of the final state plan for regulating carbon dioxide emissions from covered electric-generating units by the Department of Environment and Conservation to the federal Environmental Protection Agency, to prepare a report that assesses certain effects of the state plan.
Texas Bars Local Drilling Rules
Texas Gov. Greg Abbott (R) signed a bill (H.B. 40) preventing municipalities from regulating oil and gas operations, granting the state exclusive jurisdiction of oil and gas operations and preempting ordinances and regulations enacted at the local level, unless the regulation meets one of four tests, according to the bill.
Crafted in response to a ballot measure approved by Denton that would ban hydraulic fracturing within its city limits, the bill would ensure the state avoids “a patchwork quilt of regulations that differ from region to region, differ from county to county or city to city,” Abbott said.
The law, which took effect immediately, was criticized as a power grab by environmental groups who continue to express concern about Texas's intermittent seismic activity in the Dallas-Fort Worth metro area.
Utah Energy Bills
S.B. 188, signed by Gov. Gary Herbert (R), allows the Board of Oil, Gas, and Mining to allow more than one well to be drilled in a drilling unit under certain circumstances. H.B. 393 creates the San Juan County Energy Zone for energy exploration, access and development policy in San Juan County.
S.B. 280 allows the governor's energy adviser to serve as the director of the Office of Energy Development. S.B. 156 enacts an energy efficient vehicle tax credit for certain motorcycles.
H.B. 410 modifies and renames the Facility Energy Efficiency Act and modifies state and local provisions relating to energy efficiency programs. Herbert signed S.B. 14 March 31, addressing renewable energy tax credits in Utah.
Washington Rail Safety
Washington enacted a new law addressing rail transportation safety by requiring refineries to notify the state in advance of crude-by-rail shipments.
That the reporting requirement in ESHB 1449 is placed on refineries rather than rail companies reflects a strategic decision by the bill's prime sponsor to avoid giving the rail industry ammunition to overturn the law in the courts on the grounds of federal preemption.
The bill also mandates additional state inspection of crude-by-rail facilities and crossings; updates spill-response planning to reach “best achievable protection to respond to a worst case spill”; and updates the definition of oil in spill prevention, cleanup and financial responsibility statutes to explicitly include bitumen, synthetic crude and natural-gas well condensate.
Wyoming Enhanced Oil Recovery
A new law (SEA 16) took effect in Wyoming changing the name of the state's Enhanced and Improved Oil Recovery Commission to the Enhanced Oil Recovery Commission and removing references to any “institute.”
The law clarifies the mission of the commission to include work with gas recovery, gas technology and both conventional and unconventional oil and gas reservoirs. It specifies the commission shall work with the School of Energy Resources at the University of Wyoming.
It further specifies the commission shall facilitate agreements between the university's School of Energy Resources and the oil and gas industry through which industry is allowed access to the school's expertise and work product while the school gains access to industry data and facilities.
Contributing to this story were Andrew Ballard in Raleigh, N.C., Michael Bologna in Chicago, Leslie Pappas in Philadelphia, Paul Shukovsky in Seattle, Paul Stinson in Austin, Texas, and Carolyn Whetzel in Los Angeles.
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FERC: Dominion LNG Facility's Impacts Fully Assessed
Jan 8, 2016 | BNA Daily Environment Report
By Rebecca Kern
The Federal Energy Regulatory Commission said in a recent District of Columbia Circuit brief that it has taken a “hard look” at the environmental consequences of Dominion Resources Inc.'s Cove Point liquefied natural gas export facility in response to criticisms from environmental groups that it hasn't done a thorough enough assessment.
FERC also said in its Jan. 5 respondent brief to the U.S. Court of Appeals for the District of Columbia Circuit that environmental group EarthReports is wrong in saying FERC is the only agency responsible for the National Environmental Policy Act environmental assessment required for the LNG facility in Calvert County, Md. (EarthReports v. FERC, D.C. Cir., No. 15-1127, brief filed, 1/5/16).
EarthReports, along with the Sierra Club and the Chesapeake Action Network, said in its November 2015 brief that FERC failed to take “a hard look at the significant environmental consequences” of allowing Dominion to construct the LNG facility. When operational, the facility would be capable of exporting nearly 1 billion cubic feet of LNG a day for 20 years (217 DEN A-19, 11/10/15).
FERC said EarthReports disregards the environmental review the Energy Department conducted for Dominion's export authorization proceeding, which included studies analyzing the impacts associated with natural gas production and hydraulic fracturing, and global greenhouse gas emissions and resulting climate impacts from exporting LNG.
FERC: BP Case Should Be Dismissed
FERC said in the same Jan. 5 response brief that the case BP Energy Co. filed against FERC related to the Dominion LNG facility should be dismissed for lack of standing.
BP filed a suit against FERC claiming that FERC's decision to approve the Dominion project misreads the Natural Gas Act, and that Dominion discriminated against BP. The company's suit also said BP should receive the same privileges that another customer, Statoil Natural Gas LLC, received (BP Energy Co. v. FERC, D.C. Cir., No. 15-1205, brief filed, 1/5/16).
FERC said, “BP fails to demonstrate that it has suffered or will suffer any harm as result of the early termination of another customer's service contracts with Dominion.” The commission also said the “alleged differential treatment” of BP and Statoil wasn't enough to lead to discrimination concerns. Statoil and BP are not “similarly situated” as customers for the LNG facility, FERC said.
The two cases against FERC have been consolidated in the D.C. Circuit court.
The joint brief for intervenors in the case—Dominion Cove Point and Statoil—is due Jan. 19. Final briefs are due Feb. 29. A date for oral arguments has not been set.
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NAFTA Test For Keystone XL Offers Greens New Weapon Against Trade Pacts
Jan 7, 2016 | PoliticoPro
By Elana Schor
The NAFTA challenge to President Barack Obama's rejection of the Keystone XL pipeline comes at an awkward time for the administration's trade agenda, giving the left a new rallying cry to mobilize against the Trans-Pacific Partnership deal that Congress is expected to take up by this summer.
TransCanada Corp. said Wednesday it planned to use NAFTA provisions that let foreign companies contest decisions by governments in a claim seeking upward of $15 billion in damages for Obama's rejection of its Canada-to-Texas pipeline. The company faces a high hurdle to prevail — the U.S. has never lost an ISDS case, or investor-state dispute settlement — but green groups and unions are already using the latest Keystone fight to motivate liberals to oppose Obama's TPP pact.
"Ultimately, TransCanada's lawsuit won't do much to change the outcome of the fight against Keystone XL — we already won that battle," Jamie Henn, co-founder of the green group 350.org, wrote in a Wednesday column. "But it could help fuel new fights against trade agreements like the TPP, and it will certainly help galvanize more opposition to the fossil fuel industry."
Edward Alden, a senior fellow at the Council on Foreign Relations, wrote in a Thursday column on the NAFTA challenge that there was "no question that the case will be fresh ammunition for Democratic opponents of the TPP deal."
"The only silver lining for the president may be that Republican supporters of the Keystone pipeline will be delighted to see the Canadians taking a swipe at President Obama over the decision," he wrote. "Perhaps that will cause a few more of them to rally behind the TPP agreement as a vehicle for reining in what they see as the president’s abuse of his executive authority."
The Obama administration and its pro-TPP allies say the new trade deal, which may not get a final up-or-down vote in Congress for months after its official signing by the 12 nations under it next month, includes new environmental safeguards that are stronger than those in NAFTA. White House spokesman Josh Earnest hailed the undefeated U.S. record in ISDS challenges as an "indication we've been quite effective" at using the system to bolster domestic interests while shielding the nation from undue foreign pressure.
"Our strong record in that venue is a strong argument for precisely why Congress should approve the Trans-Pacific Partnership," Earnest told reporters.
But green and labor groups are infuriated by TPP's expansion of the number of countries where businesses can bring ISDS claims against the U.S. They warn that disputes aimed at expanding fossil fuel industry rights to drill and mine domestically will spike if TPP takes effect, making TransCanada's Keystone challenge the first of a fresh wave from companies in the Pacific region.
Shane Larson, legislative director for the Communications Workers of America, lamented the Keystone NAFTA filing as a fresh example of "how trade pacts can be used by corporations to undercut U.S. domestic policy decisions, laws, and regulations."
"And make no mistake," Larson added in a statement, "passing the TPP would allow dramatically more companies in more countries to challenge U.S. laws and regulations.”
Keystone and TPP were already intertwined in the Democratic presidential primary race. Sen. Bernie Sanders (I-Vt.) criticized Hillary Clinton on Wednesday for turning against TPP after leaving the Obama administration, much as she came out against Keystone after declaring in 2010 as Secretary of State that she was "inclined" to approve the $8-billion-plus pipeline.
"You can't be for the TPP and against the TPP, for the Keystone pipeline, against the Keystone pipeline," Sanders told MSNBC. "You know, I have been fairly consistent my entire political life."
Clinton's campaign did not return a request for comment on whether the newest Keystone challenge strengthens the case against the Asia-Pacific trade pact.
The White House has yet to press its pro-TPP case on Capitol Hill, though that campaign is likely to pick up after nations involved in the nearly $28 trillion agreement add their final approval to the document Feb. 4 in New Zealand. Once the administration begins courting lawmakers to support for its trade pact, which cannot be amended under the terms of the fast-track authority Obama won in June, greens are poised to hoist their anti-Keystone banners once again.
Sierra Club senior policy adviser Ben Beachy noted that both NAFTA and TPP allow private lawyers to serve as arbiters of foreign companies' claims to discriminatory treatment by the U.S. government.
"Neither NAFTA nor the TPP has meaningful rules requiring these lawyers to be impartial," Beachy wrote in a Thursday column.
Rep. Sander Levin (D-Mich.), the House Ways and Means Committee's senior Democrat, said Thursday that he had pitched two remedies that would have helped head off a trade-deal challenge on Keystone, "yet the administration chose not to accept them." Those proposals would have set up a "diplomatic screen" allowing the U.S. and Canadian governments to agree that the decision could not be contested and underscored that alleged "arbitrary" moves, such as Obama's Keystone rejection, would not violate NAFTA standards.
“A full and vigorous public debate is needed to identify problems like this one before the TPP agreement is signed," Levin said in a statement on TransCanada's challenge.
The Senate's top Democrat on trade issues, Finance Committee ranking member Ron Wyden (D-Ore.), rattled liberal groups last year with his dealmaking on TPP and fast-track authority. He dismissed TransCanada's NAFTA challenge as "a desperate attempt to salvage a lost cause" in a Thursday statement.
Jeffrey Schott, a senior fellow at the Peterson Institute for International Economics and veteran Treasury Department adviser on international trade and energy, said TransCanada's Keystone claim is "a hard case to win" under NAFTA, and he shrugged off attempts to cast TPP's environmental provisions as a mirror of NAFTA's.
The new trade pact has "a much bigger ballpark for countries to act in deference of environmental concerns than under NAFTA," Schott said. TPP language giving countries discretion to shape their own internal regulations was added "because of the concerns of environmental groups," he added.
White House adviser Rohan Patel also touted expanded protections for wildlife and forests after TPP's final release in November.
Obama's spokesman sounded his own optimistic note on the NAFTA challenge on Thursday, telling reporters the White House is "confident the decision that was made vis-a-vis the Keystone pipeline was entirely consistent with our international obligations." A USTR spokesman did not return a request for comment on the Keystone challenge's relevance to the TPP debate.
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Pa. Prepares To Finalize Surface-Impact Rules For Marcellus Shale
Jan 8, 2016 | E&E Daily News
By Mike Lee
Pennsylvania's energy regulators are preparing to finalize a controversial set of oil and gas rules, despite opposition from the industry.
The Department of Environmental Protection is sending the final version of the so-called Chapter 78 rules to the state Environmental Quality Board, which is scheduled to discuss them at a meeting Feb. 3.
The rules are intended to control the surface impacts of drilling, such as surface water impoundments. They would also allow the DEP to add permit restrictions for gas wells that are close to schools, parks and other public resources (EnergyWire, March 10, 2015).
The drilling industry says they're unnecessary, though, and won't be cost-effective. The Marcellus Shale Coalition, a leading trade group, said the DEP has ignored the industry's comments on the rules.
"This rule making will cost Pennsylvania job creators nearly $2 billion annually without providing meaningful environmental benefits," said the coalition's president, David Spigelmyer, in a statement.
Pennsylvania has become the second-biggest natural gas producing state since development began in the Marcellus Shale about 10 years ago. The Marcellus is a deep layer of rock that has to be cracked open with a high-pressure mix of water, sand and chemicals before it will produce.
The process, known as hydraulic fracturing, or fracking, is more intensive than conventional drilling and has led to complaints about pollution, noise, truck traffic and other problems.
The industry has pushed back hard against the regulations, which have been pending since 2011. The state Legislature ordered the DEP in 2014 to prepare separate rules for shale wells and conventional wells.
The DEP has already toned down parts of the regulations. The original proposal included restrictions on noise from drilling sites, but the DEP said that issue was too complex. It also dropped a proposal to regulate some types of storage tanks that are used to hold spent drilling fluids (EnergyWire, Aug. 13, 2015).
The Environmental Quality Board has 20 members, including 11 state department heads.
If the regulations are approved by the board, they will go to the Independent Regulatory Review Commission, a separate review body that determines whether state regulations are reasonable and serve the public interest.
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Oil Industry's Long Give-And-Take With Obama Administration
Jan 8, 2016 | E&E Daily News
The last few years have presented several wins and losses for the oil industry under the Obama administration. While environmentalists say the president's policies prompted the domestic oil production surge, oil companies say they prospered in spite of them.
The American Petroleum Institute gave its state-of-the-industry report Tuesday denouncing regulations, keying in on the Clean Power Plan. API President Jack Gerard said the CPP, "under the guise of environmental protection, does in fact, seek to pick winners and losers in the energy market, not based on market conditions, consumer preference or economic reality."
The United States depends largely on oil and gas for economic benefit, though, even as the president pushes for more green initiatives. This last year, the government started opening the door to development on the Atlantic coast, largely shunned regulations on hydraulic fracturing (aside from the president's court-blocked regulations) and lifted the 40-year ban on oil exports. Drilling also was allowed in the Arctic, though there were two canceled drilling rights auctions there and a ban to drill in certain Arctic National Wildlife Refuge areas.
"API has plenty to celebrate," said Lukas Ross, a climate campaigner with environmental group Friends of the Earth. Ross noted setbacks in flaring rules and the limited methane emissions restrictions, which cause environmentalists to call for more government action.
Kevin Book, managing director of ClearView Energy Partners LLC, calls the administration's strategy a "give-a-little, take-a-little" approach, reflecting its struggle between the major economic benefits from the industry and its mission to cut carbon emissions.
Even while U.S. oil production rose 82 percent in the last seven years, both the price of oil and its public view have plummeted. Book said the lasting implications of the administration's work will be largely social. That is, Book said the international climate deal and the creation of broader environmental reviews puts a focus on the "social cost of carbon," which he said in some form "is likely to endure"
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Oil Sector Raises Cost, Burden Concerns Over EPA Waste Generator Rule
Jan 7, 2016 | InsideEPA
By Suzanne Yohannan
The oil industry is warning that EPA's proposed update to regulations for hazardous waste generators could create significant costs and burdens for regulated entities, although industry says that some of the planned regulatory changes could make it easier for various sectors to know the mandates with which they must comply.
EPA in a Sept. 25 Federal Register notice proposed to make over 60 changes to current Resource Conservation & Recovery Act regulations for the generators. The revisions are designed to improve the effectiveness of, and compliance with, the hazardous waste generator program. The agency took comment on the proposal through Dec. 24.
The revisions include "rearranging some of the generator regulations that had outgrown their original numbering system so it will be easier for facilities of all sizes that generate hazardous waste to find everything they need to know in one place," EPA waste chief Mathy Stanislaus said in an Aug. 31 statement on the draft rule.
The proposed changes stem from problems identified in 2004 and 2013 EPA evaluations of the hazardous waste generator program. The revisions also address responses to a 2014 notice of data availability that EPA issued on the retail sector asking for comment on hazardous waste management practices in that sector and on challenges they face in complying with RCRA, the rule's preamble says.
Among the proposed changes are replacing the phrase "conditionally exempt small quantity generator" (CESQG) with the phrase "very small quantity generator" (VSQG) so as to be consistent with the other two generator categories -- large quantity generators (LQGs) and small quantity generators. Additionally the agency is proposing to allow CESQGs to send hazardous waste to an LQG that is under the control of the same person.
"Numerous situations exist in industry, government, and academia where an organization with satellite locations that qualify as CESQGs could take advantage of this provision in order to consolidate and manage the hazardous waste in an environmentally sound manner," EPA says in the rule's preamble.
The proposal would also allow companies to maintain their smaller generator status if they have an episodic generation of waste that exceeds the small quantity limits.
API's Criticisms
The American Petroleum Institute (API), which represents the oil industry, says in Dec. 3 comments it supports certain measures in the proposed rule -- such as an allowance for episodic waste generation -- but is critical of a number of measures in the proposal and seeks modifications.
But API criticizes the rule's proposal to require generators to document all nonhazardous waste determinations, saying it is "unnecessary and burdensome."
While some of the revisions will likely make it easier for generators to understand their regulatory obligations, "EPA's revised recordkeeping requirements for waste determinations are unnecessarily burdensome, will be difficult to implement, and in our view will not result in more accurate waste determinations," API says.
Further, the group says it believes EPA has largely underestimated the costs related to maintaining documentation of every nonhazardous waste determination. EPA estimated it would take just 15 minutes for a technician to prepare documentation of such a determination, but API says due to potential enforcement actions if documentation is inadequately detailed, generators "will certainly take more than 15 minutes to prepare the records."
API also dislikes the requirement to maintain waste determination records beyond three years, calling it unnecessary, and is critical of EPA's proposal to distinguish between "independent requirements" that are applicable to all generators, and "conditions for exemption" requirements that generators have to follow to be exempt from requirements applicable to treatment storage and disposal facilities (TSDFs).
EPA includes language that subjects generators who fail to meet a condition for exemption to enforcement under RCRA section 3008 for violating requirements applicable to TSDFs.
This would shift the focus of enforcement, API says. "If a generator has a relatively minor violation of a condition for exemption, such as a one-day exceedance of their storage limit, enforcement officials would be compelled to bring an enforcement action against the generator as an unpermitted TSDF or forego enforcement altogether," it says.
It argues, "This shift in focus for potential enforcement against hazardous waste generators is entirely disproportionate with what should be EPA's enforcement objectives." Under this, EPA would label "any generator with even the most minor compliance deviations . . . as an unpermitted TSDF."
API backs a proposal to allow CESQGs "to consolidate hazardous waste at an LQG but believes the proposed conditions are too stringent and will discourage the use of this option." This will give flexibility to companies operating numerous sites generating small amounts of hazardous waste, but API says the many conditions in the rule, such as labeling requirements at the CESQG location, as well as notification and recordkeeping mandates, will limit the provision's use.
API supports several of the proposed changes in the rule aimed at creating flexibility and clarity for generators. These include the plan to allow CESQGs and SQGs to not bump up to larger generator categories when they experience an episodic waste generation -- although API would like that to be moved to two episodic events a year.
API also supports proposed changes EPA says it would make to satellite accumulation requirements, and the agency's proposal to permit generators to seek a site-specific waiver from a mandate that ignitable, reactive wastes be located at least 15 meters from a facility's property line.
Further, the group backs EPA's clarification allowing a CESQG to maintain its generator status when it mixes hazardous waste with non-hazardous waste provided the resulting substance does not exhibit hazardous waste characteristics, and supports EPA's backing of online training to meet generator training requirements.
Waste Determinations
The American Chemical Society (ACS), which represents scientists who work in academic, government and industrial laboratories, also raises concerns in its Dec. 15 comments over the rule's proposed requirements to document hazardous waste determinations, even when the waste is not found to be hazardous, saying they would "have significantly more impact on the management of laboratory waste than on other hazardous waste generation settings."
Generally, ACS says it is concerned that the proposed rule will create requirements "that will place additional ongoing functional and financial burdens on laboratories in many sectors," and that EPA has not given full consideration to these burdens.
The group's two other main concerns are that the rule would maintain "the current ambiguous situation regarding the 'point of generation' of hazardous waste and where the application of RCRA requirements begins," and that additional hazardous waste labeling requirements "will impose a significant burden on laboratory waste generators without providing the benefits described in the docket."
In comments submitted by the Colorado Department of Public Health and Environment, posted in the regulatory docket Dec. 18, the state says it "is generally pleased" with the draft rule, but notes that adopting the new regulations into state regulations "will entail considerable effort as Colorado's sections and some structural elements of our regulations differ from the federal RCRA regulations." The scope of the rule will require in-depth analysis and working with EPA and other states to finalize the rules in a way that benefits both regulators and the regulated community, the state says. Colorado provides specific comments on sections of the rule, agreeing with many of the provisions and making suggestions for changes to some of the provisions.
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No Plan B If Court Blocks Rule -- McCarthy
Jan 7, 2016 | E&E News PM
By Amanda Reilly
U.S. EPA Administrator Gina McCarthy said today she has no "plan B" in case the courts block the agency's Clean Power Plan during litigation as challengers have requested.
Speaking at a Council on Foreign Relations event in Washington, McCarthy expressed faith in the legal underpinnings of the rule and said her focus was instead on working with states to craft compliance plans due in September.
"Plan A's a good one, and I don't want anything to think it isn't," McCarthy said when asked whether she had a backup plan for a stay. "I think we'll get through the stay soon."
McCarthy also called the Clean Power Plan "our shot" to use the Clean Air Act to address the power sector's carbon footprint.
EPA's Clean Power Plan, finalized in August, requires states to develop plans to reduce carbon dioxide emissions from existing power plants.
Almost 150 opponents, including 27 states, have challenged the rule in the U.S. Court of Appeals for the District of Columbia Circuit. States and industries have asked the court to immediately halt the rule while the legal issues play out (Greenwire, Jan. 4).
Appeals court judges will likely hand down a ruling on the stay request within the next few weeks. If they do block the rule, it would likely slow state efforts to shape compliance plans.
"I think we all are confident that we'll meet the legal test there," McCarthy said.
She added, "There's no reason, no damage to warrant a stay that any of us can identify."
McCarthy said she was further confident that states would be able to meet the Clean Power Plan's September deadline.
That month, states have to either submit initial plans laying out how they will achieve emission reduction targets or demonstrate progress toward that goal.
"I've been to many meetings, and I'm seeing nothing but really actually positive energy around this," McCarthy said.
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Defiant Ala. Pledges To Wait Out Court Ruling
Jan 8, 2016 | E&E Daily News
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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House Passes Bills to Add Steps to Regulatory Process
Jan 7, 2016 | BNA Daily Environment Report
By Cheryl Bolen
The House on Jan. 7 passed by a vote of 244-173 a bill (H.R. 712) that seeks to end the secretive practice of enacting federal regulations through so-called sue-and-settle litigation, one of the chief regulatory priorities of the U.S. Chamber of Commerce.
The House then finished debate and passed by a vote of 245-174 a bill (H.R. 1155) that would establish a nine-member review commission to recommend federal rules for repeal, despite opposition from Democrats, the White House and public interest organizations.
The Office of Management and Budget on Jan. 5 issued statements of administration policy threatening a presidential veto of both measures. Similar versions of these bills have been passed—and vetoes threatened—in previous sessions of Congress.
Democrats charged that both measures were attempts by Republicans to hamstring federal agencies to the point where they can no longer effectively regulate.
“This is the second anti-regulation bill that Republicans have brought to the floor in two days,” said Rep. Elijah Cummings (D-Md.), the ranking member of the House Committee on Oversight and Government Reform.
Goal Is Transparency
H.R. 712, the Sunshine for Regulatory Decrees and Settlements Act, would require that consent decrees and settlement agreements be filed only after interested parties have had the opportunity to intervene in the litigation and join settlement negotiations.
The bill's sponsor, Rep. Doug Collins (R-Ga.), said the bill would go after consent decrees negotiated behind closed doors, many times without those who are affected having the ability to give input. “That's just not fair,” he said. “This bill simply is about transparency.”
Lawmakers considered seven amendments to the bill, adopting two sponsored by Republicans and defeating five offered by Democrats.
Incorporates Two Other Measures
H.R. 712 incorporates two other bills that would make other changes to the regulatory process: H.R. 690, which would require federal agencies to post online a plain-language summary, of not more than 100 words, of any proposed rule; and H.R. 1759, which would require agencies to submit to OMB a monthly report listing each rule they expect to propose or finalize during the following year.
H.R. 1759, called the All Economic Regulations are Transparent (ALERT) Act, was introduced this session by Rep. John Ratcliffe (R-Texas). The bill also would prohibit a rule from taking effect until it had been posted online for at least six months.
Cummings said that while the bill purports to provide transparency, it does the opposite by directing the Office of Information and Regulatory Affairs (OIRA) to publish the total cost of all rules proposed or finalized without counting any of the offsetting benefits.
“That's not transparency, that's misinformation,” Cummings said.
Chamber Applauds
In a statement, the U.S. Chamber of Commerce charged that special interest groups use sue-and-settle litigation as a tactic to force federal agencies to settle disputes through regulation.
The bill would bring transparency and accountability to the process by requiring agencies to publicly post and report to Congress information on sue-and-settle complaints, consent decrees and settlement agreements, the statement said. Also, consent decrees and settlement agreements could be filed only after being published for at least 60 days.
Rep. Hank Johnson (D-Ga.), who opposed the bill, said proponents argue the bill is necessary because federal agencies collude with pro-regulatory plaintiffs to advance a mutually agreed-upon regulatory agenda through the use of consent decrees and settlement agreements.
Proponents also charge that the sue-and-settle tactic specifically allows agencies to skirt the requirements of the Administrative Procedure Act to dictate the content of an agency rulemaking or bind agency action, Johnson said.
“Sadly, however, the majority [party] has not put forth a single dust particle of credible evidence to support this claim,” Johnson said.
SCRUB Act Passed
The bill passed by the House in the second vote Jan. 7, H.R. 1155, is called the Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act. It is sponsored by Rep. Jason Smith (R-Mo.).
In addition to creating a review commission, the bill would establish a “cut-go” process that would require agencies to repeal the rules identified by the commission before they could issue any new rules.
“The SCRUB Act will start the process of unraveling years of convoluted, sometimes contradictory, regulations and eliminating the costs that come with them,” said Rep. Tom Marino (R-Pa.).
Lawmakers began debate of the bill the evening of Jan. 6, approving three amendments by voice vote sponsored by Republicans. The House on Jan. 7 voted down another six amendments to the bill sponsored by Democrats.
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House Passes Regulatory Reform Bills
Jan 7, 2016 | The Hill - E2 Wire
By Lydia Wheeler and Cristina Marcos
The House on Thursday approved Republican-backed regulatory reform bills to curb what they view as costly regulations.
The first bill, titled the Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act, passed 245-174. The legislation, introduced by Rep. Jason Smith (R-Mo.), would establish a bipartisan commission to review existing federal regulations and identify rules that should be repealed.
Lawmakers say the commission’s goal would be reduce cumulative costs from regulations by 15 percent and prioritize rules that have been in effect for more than 15 years.ADVERTISEMENT“What we are asking for is to simply have a bipartisan group of people — bipartisan — look at regulations that may be outdated and scrub them. I think that is a reasonable expectation. That is not asking too much,” said House Oversight Committee Chairman Jason Chaffetz (R-Utah).
Critics argue that creating a new commission could cost taxpayers as much as $30 million — the amount of funding authorized by the legislation — and replicate what agencies and Congress are already doing.
"The commission would have virtually unlimited authority to subpoena witnesses or documents," Rep. Elijah Cummings (D-Md.), the House Oversight Committee’s top Democrat, said. "This means that it could compel an individual to testify on any subject. A schoolteacher could be compelled to testify about education rules, or a senior citizen could be compelled to testify about Medicare or Social Security rules."
Another measure, titled the Sunshine for Regulatory Decrees and Settlements Act, also sailed through the House on a 244-173 vote. The bill is intended to limit special interest groups’ ability to push federal agencies to adopt rules through litigation by prohibiting the same-day filing of complaints, pre-negotiated consent decrees and settlement agreements in cases seeking to compel agency action.
"Ensuring that folks aren’t steamrolled by new regulations should be a no-brainer. Transparency shouldn’t be controversial," said Rep. John Ratcliffe (R-Texas).
The White House said this week that the president would veto both bills because they would limit authority federal agencies have to issue rules.
The Small Business Entrepreneurship Council praised the House this week for for kicking off 2016 by taking action on legislation, saying it will reduce regulatory burdens for small businesses and reform the “sue and settle” tactic used by some interest groups.
“Both of these bills, if enacted, will improve and provide a needed check to the regulatory process, which means entrepreneurs and small businesses will enjoy a better business environment,” the council’s president and CEO, Karen Kerrigan, said in a statement.
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NRDC Sees Frantic Final Push on Environment from Obama
Jan 8, 2016 | BNA Daily Environment Report
By Anthony Adragna
President Barack Obama's administration will work furiously to complete a wave of environmental regulations during his final year in office, defend existing rules in court and set the stage for additional efforts by the next president, officials with the Natural Resources Defense Council said Jan. 7.
NRDC experts said they expected the Republican-led Congress would continue attempts to undermine environmental gains through the appropriations process and votes on resolutions to nullify regulations, but said those pushes would not affect Obama's regulatory plans before leaving office.
“There's a long list of things they have on their plate and from every sign that I think we've gotten, they're going to hopefully leave no stone unturned,” Jake Schmidt, director of the NRDC's International Program, told reporters. “They will be running out the door, not slow-walking.”
The group said it expected the U.S. would fully fund its first $500 million contribution to the international Green Climate Fund, predicted strong domestic action to protect the health of pollinators and anticipated “full court press” internationally to reach an agreement phasing down the production and use of hydrofluorocarbons (HFCs).
Looking Ahead on Climate
David Doniger, director of the NRDC's Climate and Clean Air Program, said the group would urge the administration to begin considering how to “revise and revisit” its plan to address climate change to set the stage for further action in the next administration.
That might include options for reducing greenhouse gas emissions from other major industrial sectors like oil refineries, chemical plants and cement manufacturers, Doniger said, adding the environmental community was exploring ways to drive emissions reductions in those areas.
“It's going to be useful to look at all these different categories for where the opportunities are for cost-effective reductions,” he said.
Appropriations Fight to Continue
Scott Slesinger, legislative director within NRDC's Government Affairs division, said the environmental community did well in 2015 at preventing more than 100 policy riders from being tacked on to government funding legislation (242 DEN A-1, 12/17/15).
He predicted a similar battle in 2016, but said groups again were ready to protect the president's environmental gains.
“We're going to be working again with our friends in the environmental community, the progressive community, the White House, Democratic leadership to try to be as successful this year as we were last year,” Slesinger said.
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Obama Legacy to Include Energy Efficiency Drive
Jan 8, 2016 | BNA Daily Environment Report
By Jonathan N. Crawford
For a taste of the energy legacy that President Barack Obama is about to leave behind, check the fridge.
No, literally. Since 2009, his administration has created 43 rules that will deliver the biggest energy savings of any president in history, eliminating demand in 2030 equal to the electricity produced by 96 power plants, based on a consumer group's estimates. And among the most effective is one that has the family refrigerator running on less power than it takes to light a 50-watt bulb.
A rule completed last month will shrink the energy used by commercial rooftop air conditioners and furnaces, an effort the U.S. government projects will save 1.7 trillion kilowatt-hours of electricity over 30 years, more than any other change since efficiency laws were enacted in 1975. Supporters say the changes will cut power bills. Opponents warn appliance costs will rise as manufacturers spend tens of millions redesigning products.
“It's major progress for energy efficiency and it's also a major success in straightening out an important energy savings program that had not previously delivered on what it was supposed to do,” Andrew deLaski, executive director of the Boston-based Appliance Standards Awareness Project, said in a phone call.
Opponents See Overreach
The Obama administration is guilty of overreach, say opponents. A rule for dishwashers proposed in 2014 curbs water consumption so much that the machines failed to remove food caked on plates and utensils, according to the Association of Home Appliance Manufacturers, a trade organization. The draft standard, which may be adopted in August, was the result of the U.S. Energy Department's failure to consider input from manufacturers and conduct proper product testing, the Washington-based group said.
“The DOE is rushing to promulgate as many rules as they possibly can and they are running into situations where they are cutting corners in the analysis,” said Joseph McGuire, president of the Washington-based group. “We are concerned that they're going too far and they're going too fast, and it won't be a good deal for the consumer.”
Republicans in Congress have fought several energy plans pushed by Obama. Rep. Mike Pompeo (R-Kan.), said the premium consumers pay for many of the products redesigned to meet the higher standards outweighs the energy savings. He backs legislation to suspend action on the rules for as long as 18 months.
Kathleen Hogan, the Energy Department's deputy assistant secretary for energy efficiency, defends the Obama effort as a boon for consumers.
“One of the key commitments was to really get the appliance standards program up to date,” Hogan said in a telephone interview. “It's a tremendous impact on saving people money and reducing our need for energy.”
Energy-Saving Rules for Many Things
Energy-consuming devices from clothes washers and dryers to ceiling fan light kits and beverage vending machines have been given new energy conservation standards, with the president pledging to review 17 more standards for possible revision before the end of his term. The Energy Department has estimated that the reductions will save consumers more than $520 billion through 2030 in electricity costs.
Those savings come at the expense of power company earnings. Retail electricity sales have been flat since 2007 after gaining most every year from 1949, according to Energy Information Administration data. The Standard & Poor's 500 Utilities Index had the third-worst stock performance of any industry group last year, with shares tumbling 8.4 percent.
“In spite of the fact that the economy is growing at its fastest rate since 2005, we're still seeing load growth stagnating in most every market,” said Shahid Malik, president of energy resources and trade at Newark, New Jersey-based utility Public Service Enterprise Group Inc.
President's Leadership
Obama's push for efficiency was part of his emergence as a global leader in the drive to cut greenhouse gases, with the president reaffirming his pledge to curtail carbon emissions through energy efficiency in a pact with China in September.
All the standards updated during Obama's presidency may cut 3 billion metric tons of carbon dioxide by 2030, equal to about half the carbon pollution from the entire U.S. energy sector in a year, according to the Energy Department.
In 2016, energy reductions may reach about 130 billion kilowatt-hours and save consumers about $14 billion, according to deLaski of Appliance Standards Awareness Project.
“When you can advance a policy that saves people money, promotes innovation, saves a bunch of energy and yields environmental emission reductions all at the same time, it's a no-brainer,” he said.
Wholesale power in the benchmark hub for the largest U.S. grid extending from Washington to Chicago fell $8.18, or 25 percent, to average $23.93 a megawatt-hour for the hour ended at noon Jan. 7 from the same time a day earlier, grid data compiled by Bloomberg showed.
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EPA Chief: Obama Administration Will Seek To Lock In Climate Gains In 2016
Jan 7, 2016 | The Washington Post
By Joby Warrick
The Obama administration is preparing an ambitious agenda on climate change for its final year in office, pushing ahead on multiple fronts to ensure that the United States keeps its promises to rein in greenhouse gas pollution, the head of the Environmental Protection Agency says.
Despite last month’s major win at the Paris climate talks — and in spite of a shrinking timeline for new regulations — 2016 “is not an opportunity to relax,” EPA Administrator Gina McCarthy said in an interview. The agency’s chief cited new efforts to lock in progress in lowering air pollution and predicted that the administration’s signature regulatory accomplishments would survive challenges from a hostile Congress and from the courts.
“We’re not just going to stay with what we’ve already done,” said McCarthy, who will complete her third year as administrator in July. “We’re going to look for other opportunities.”
McCarthy made the comments in advance of a speech Thursday before the Council on Foreign Relations, in which she outlined environmental priorities for the administration’s final year. In the address, she described plans to increase technical assistance to foreign governments in monitoring and controlling emissions of carbon dioxide and other greenhouse gases — aid she said would “make sure the [Paris] agreement is cast in stone to the extent that we can.”
The Obama administration insisted that the Paris agreement include strong accountability provisions requiring countries to monitor pollution and show verifiable progress in reducing it. McCarthy said many countries — including major economic powers such as China — lack the technical experience or know-how needed to carry out the agreement’s provisions, and the EPA is preparing to help fill the gap.“Countries want to do it, but many of them don’t have the capacity at this point,” McCarthy said. “A lot of what the EPA is doing is sharing expertise — on how to do the work, and also on the benefits it brings, so it’s not seen as a chore but as an opportunity.”
The challenge for many developing countries, she said, is how to continue to grow economically while still lowering air pollution that can harm human populations as well as the environment. “It can be done,” she said, “and it can drive the new technologies you need to come to the point where you’re not being forced to do it, but you’re embracing it .”
On the domestic front, the EPA will formally adopt new regulations aimed at cutting pollution from heavy trucks and curbing methane leaks from oil and gas operations, she said. The agency also is working with state regulators to implement the so-called Clean Power Plan, the controversial rule adopted in the summer that requires states to reduce carbon emissions from power plants, the country’s biggest single source of greenhouse-gas pollution.
The administration’s signature regulation on climate change faces fierce opposition from the Republican-led Congress, as well as lawsuits by states and utilities opposed to the plan.
McCarthy expressed confidence that both the regulation and the Paris agreement would be on solid footing by the time the next president assumes office in 2017.
“Congress did give us a job to do, and that’s the job we’re doing,” she said. “If there are members of Congress who don’t like it, they’re going to have to figure out a way to address it legislatively. And so far there are no opportunities to do that, that we can foresee.”
Opponents of the administration’s climate agenda repeated vows this week to repeal much of it. On Tuesday, the president of the country’s largest trade organization for oil and natural gas companies criticized the administration for policies that he said favored certain types of energy over others — or that simply sought to keep fossil fuels in the ground. “There are some in government who will advance their favored forms of energy to that dubious and untested end,” the American Petroleum Institute’s Jack Gerard said in a policy speech, “heedless of the potential harm it could cause to our economy or how much it could cost the American consumer.”
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Governor Proposes Spending $3.1B In Cap-And-Trade Money
Jan 7, 2016 | E&E News PM
By Anne C. Mulkern
California would spend $3.1 billion in revenues from its carbon cap-and-trade program under the proposed fiscal 2016-17 budget Gov. Jerry Brown (D) released today.
The money is part of a projected $170.7 billion spending plan, with cap-and-trade dollars coming from auctions the state holds as part of its effort to cut greenhouse gas pollution. It sells allowances to businesses that are required to account for their carbon emissions.
The $3.1 billion from cap and trade includes $700 million from last year that was not spent, and $2.4 billion that's expected to be generated from auctions this coming fiscal year.
The governor said he spends "a lot of time" trying to achieve his ambitions on reducing climate change, especially in light of his trip last year to the U.N. conference on global warming in Paris.
"I set a goal for 2030, and that goal is extremely challenging," Brown said today, referring to his desire to cut greenhouse gas emissions by that year to 265 million tons annually from the current 460 million metric tons. That would be 40 percent below 1990 levels.
"It's not just the budget. It's changing a lot of different things in the residential, commercial and industrial and transportation and agricultural sectors," Brown said. "There's no one silver bullet. ... It takes many, many things, and we're working on that."
Under a deal struck with the Legislature in 2014, Brown gets to allocate 60 percent of cap-and-trade money to fixed categories, including development of a high-speed rail line; upgrades to intercity rail; and building low-income housing near subways, light rail and bus lines. Brown cut the agreement with lawmakers to obtain ongoing funding for the bullet train intended to connect Los Angeles and San Francisco.
In Brown's new blueprint, the bullet train would get $500 million. Cap-and-trade money also would be spent on programs aimed at cutting petroleum use in half by 2030. That comes after a provision requiring that reduction was dropped from S.B. 350 last year, following heaving lobbying from the oil industry. The surviving bill, now a law, mandates that by that year utilities make half their electricity from renewable sources. It also requires a doubling of the energy efficiency in buildings.
"California's transportation sector accounts for 37 percent of GHG emissions in California, representing the highest source of statewide emissions," Brown's budget noted.
Brown's budget would send $400 million to transit and intercity rail programs and give $500 million to the California Air Resources Board to allocate for efforts that shrink use of gasoline-fueled cars. Those include incentives for people to buy electric and other non-polluting cars. Another $100 million would go to the California Department of Transportation for spending on the Low Carbon Road Program. That will provide competitive grants for improvements to streets and roads that encourage walking, bicycling, using transit and other "carbon-reducing road investment," the budget said.
Brown's budget also has $150 million from cap-and-trade proceeds for programs that reduce greenhouse gas emissions through water conservation and restoring ecosystems for improved carbon sequestration.
Another $100 million in the governor's proposed budget for fiscal 2016-17 would go to what Brown called "transformational climate communities." That's funding for infrastructure built near rail and transit.
ClimateWire last year showed that cap-and-trade money for housing is filling the gap left when redevelopment went away (ClimateWire, Aug. 26, 2015). ClimateWire also revealed for the first time specifically how $1.4 billion of cap-and-trade money was spent. High-speed rail took up $750 million, with an option to take another $400 million. Intercity rail lines reaped big dollars for system upgrades. The San Francisco Municipal Transportation Agency and Southern California Regional Rail Authority each received $41.2 million. The Los Angeles County Metropolitan Transportation Authority won $38.5 million (ClimateWire, Aug. 25, 2015).
The Legislature doles out the remaining 40 percent of the cap-and-trade profits, though it held back $1.7 billion last year.
Under state law, at least 25 percent of proceeds must be spent on projects that benefit disadvantaged communities, while 10 percent must be allocated directly in those communities.
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House To Take Up Bill Blocking EPA Water Rule
Jan 7, 2016 | The Hill - E2 Wire
By Devin Henry
House Republicans will begin considering a bill next week to block implementation of the Environmental Protection Agency (EPA) rule setting federal regulatory power over waterways.
The House Rules Committee said Thursday that it will take up a Congressional Review Act (CRA) resolution blocking the water rule. The Rules Committee is the last step for legislation before hitting the House floor, so the move sets up a full House vote on the CRA, which passed the Senate in November, soon. The regulation, called the “Clean Water Rule” by the EPA and otherwise known as the “Waters of the U.S.," is controversial among Republicans and agriculture groups, who say it gives the government too much power over waterways. All but one Republican in the Senate voted for the CRA when it came to floor in November.
“My legislation is the necessary next step in pushing back against this blatant power grab by the EPA,” Sen. Joni Ernst (R-Iowa), the resolution’s sponsor, said in a floor speech in November.
“We will send this to the president, where he will be forced to decide between the livelihood of our rural communities nationwide and his unchecked federal agency.”
If the House passes the resolution, it will go to the White House, where President Obama is likely to veto it. In November, the Obama administration defended the rule and said a resolution against it would “nullify years of work and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water.”
The water rule faces legal challenges as well. Thirty-one states and multiple industry groups have sued over it, and a federal court stayed its implementation in October.
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California Budget Plan Would Fund Climate, Water Policies
Jan 8, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
California Gov. Jerry Brown proposed Jan. 7 a fiscal year budget for 2016-17 that would allocate $3.1 billion of the state's cap-and-trade revenue to curb greenhouse gas emissions and an additional $212.1 million in general fund monies to prepare for an potential fifth year of drought.
The proposed $122.6 billion spending plan forms the basis of negotiations with lawmakers on a final budget that must be completed by July 1.
Under Brown's plan, the cap-and-trade revenue would support clean transportation programs, help curb emissions from short-lived climate pollutants, protect wetlands that sequester carbon emissions, and support emissions reduction efforts in disadvantaged communities.
Funding for emergency drought response would protect and better manage water supplies, advance conservation efforts and offer emergency assistance, according to the plan.
The proposal calls for spending a total of $3.9 billion in general revenue, special funds and bond money for California Environmental Agency programs, including the California Air Resources Board, State Water Resources Control Board, Department of Toxic Substances Control and Office of Environmental Health Hazard Assessment.
In a conference call with reporters, Cal-EPA Secretary Matt Rodriquez said the plan “reflects the administration's commitment to address the many environmental challenges the state faces.”
New greenhouse gas emissions policies enacted last year and the governor's new 40 percent emissions reduction goal by 2030 mean the state has a full agenda in fiscal year 2016-17, Rodriquez said.
Programs that fall under the Natural Resources Agency, including the departments of Water Resources, Conservation and Fish and Wildlife would receive $2.9 billion in general fund revenue and $2.1 billion in special funds and bond monies under the proposal.
Along with providing additional funds for emergency drought response the budget would help fund continued implementation of the statewide Water Action Plan, upgrade fire response systems, Salton Sea restoration efforts, oil and gas pipeline inspections, clean energy programs and flood prevention efforts.
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