Preview Newsletter
ACC PM 1/8/16
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(ACC Mentioned) American Chemistry Council on Air for Portman
Jan 8, 2016 | National Journal
By Andrea Drusch
The American Chemistry Council is going up with another round of TV ads praising Sen. Rob Portman (R). The campaign will “run for three weeks throughout Ohio and will encourage constituents to contact the office of the Senator to tell him to keep up the good work.” -
Vanadium Industry Applauds EPA's Decision To Delay, Expand Risk Analysis
Jan 8, 2016 | Inside EPA
By Maria Hegstad
Stakeholders related to the vanadium industry and a joint industry-Defense Department (DOD) vanadium research project are commending EPA's recently announced decision that it will not finalize its Integrated Risk Information System (IRIS) assessment of the human health risks of exposure to vanadium pentoxide (V2O5) but instead fold its work into a broader analysis of vanadium compounds. -
EPA, NIH Offer $1M to Spur Improved Toxins Testing
Jan 8, 2016 | E&E Greenwire
By Sam Pearson
U.S. EPA and other federal agencies will work together to give away $1 million to researchers who can develop methods to produce more accurate tests to screen toxic chemicals. -
Five Reported Injured in Massachusetts Chemical Plant Explosion
Jan 8, 2016 | Wall Street Journal
By Associated Press
Authorities say a reported explosion at a Dow Chemical plant in northeastern Massachusetts has injured five people and damaged part of the building. -
Fire Marshall: Chemical Explosion Unrelated to 2013 Death
Jan 8, 2016 | Washington Post
By Associated Press
The Massachusetts Fire Marshal says an explosion at a chemical plant that injured four people had a different cause than an explosion at the same plant in 2013 that killed one. -
Report Finds Potential Chemical Exposure at Ohio Nuclear Site
Jan 8, 2016 | E&E Greenwire
Federal nuclear weapons workers may have seen less significant health improvements in the past 20 years than previously thought, according to a new government report. -
Maintaining Confidence, McCarthy Expects ESPS Stay Ruling Within Weeks
Jan 8, 2016 | Inside EPA
By Abby Smith
EPA is expecting an appellate court to decide whether to grant a stay of its existing power plant greenhouse gas rule within the coming weeks, says Administrator Gina McCarthy, reiterating her confidence that the court will rule in the agency's favor due to a lack of demonstrated harm by challengers and the support of many utility groups for the rule. -
Air Officials Cautiously Optimistic Ga. Can Meet Goals
Jan 8, 2016 | E&E Energywire
By Kristi E. Swartz
Georgia is on track to surpass an initial goal to reduce carbon emissions from its power sector, a state air official said yesterday. -
EPA Working to Ensure Paris Deal ‘Cast in Stone'
Jan 8, 2016 | Bloomberg BNA
By Andrew Childers and Andrea Vittorio
The Environmental Protection Agency will spend the next year working to ensure that the climate change deal reached in Paris “is cast in stone to the extent we can,” Administrator Gina McCarthy said. -
EPA, Industry Defend 'Systemic, Widespread' Finding
Jan 8, 2016 | E&E Energywire
By Mike Soraghan
U.S. EPA and the oil and gas industry yesterday defended the agency's finding that hydraulic fracturing doesn't cause "systemic" problems for groundwater, after the agency's science advisers formalized their criticism of the finding. -
TransCanada is Suing the U.S. Over Obama’s Rejection of the Keystone XL Pipeline. The U.S. Might Lose.
Jan 8, 2016 | Washington Post
By Todd Tucker
On Jan. 6, TransCanada went to court to claim that the Obama administration’s failure to approve the Keystone XL pipeline violates U.S. obligations under the North American Free Trade Agreement, or NAFTA. The company is asking for $15 billion in compensation from U.S. taxpayers. -
High-Stakes Claims, Hazy Precedent Steer Keystone XL Lawsuit
Jan 8, 2016 | E&E Energywire
By Ellen M. Gilmer
TransCanada Corp.'s attempt to resuscitate the Keystone XL pipeline promises a drawn out legal battle over President Obama's rejection of the long-embattled oil project.
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News - There are no clips to report at this time.
Energy and Environment News
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(ACC Mentioned) American Chemistry Council on Air for Portman
Jan 8, 2016 | National Journal
By Andrea Drusch
The American Chemistry Council is going up with another round of TV ads praising Sen. Rob Portman (R). The campaign will “run for three weeks throughout Ohio and will encourage constituents to contact the office of the Senator to tell him to keep up the good work.” The ACC ran the same ads on Portman’s behalf last fall.
ACC President and CEO Cal Dooley: “Ohio is the sixth largest chemistry-producing state. … Because of Ohio’s impact on our industry and as representatives one of the nation’s largest manufacturing sectors, we want to acknowledge Sen. Portman’s hard work and bipartisan leadership on key issues that help our economy.”
Link to Video:
https://www.youtube.com/watch?time_continue=30&v=qylOpO8LgDM
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Vanadium Industry Applauds EPA's Decision To Delay, Expand Risk Analysis
Jan 8, 2016 | Inside EPA
By Maria Hegstad
Stakeholders related to the vanadium industry and a joint industry-Defense Department (DOD) vanadium research project are commending EPA's recently announced decision that it will not finalize its Integrated Risk Information System (IRIS) assessment of the human health risks of exposure to vanadium pentoxide (V2O5) but instead fold its work into a broader analysis of vanadium compounds.
"EPA should be given credit as their decision allows for the newest science to be fully integrated into the assessment," said Judith MacGregor, chair of the scientific review board for the vanadium safety research project funded jointly by industry and DOD. "The decision also makes regulatory sense as total vanadium, not vanadium pentoxide, is measured in the environment."
The agency in its fiscal year 2015 budget request had said the V205 assessment was "anticipated to be complete in early 2015," the next IRIS assessment expected to be finalized after the December 2014 assessment of Libby amphibole asbestos.
But industry and DOD in 2014 sought a second peer review of some portion of the V2O5 assessment, as well as a stopping rule decision from EPA to determine whether IRIS staff must review the results of the industry-military research program before completing the assessment. As recently as last spring, EPA had yet to reach decisions on either request.
V2O5 is made from spent catalysts from oil refineries and power plants. It is used to strengthen steel and titanium alloys, making the metal lighter and stronger -- qualities that have made the substance attractive to the military. EPA's air office requested the IRIS assessment because the metal is used as a catalyst to reduce nitrogen oxides emissions from power plants and in diesel engines.
EPA announced last month in its IRIS multiyear plan that it would not finalize the V2O5 assessment "at this time."
"As a result of discussions during the development of the IRIS multiyear agenda, it was determined that an evaluation of the potential toxicity of multiple vanadium-containing compounds, including vanadium pentoxide, was a cross-Agency high priority need," EPA says in the IRIS plan. "For this reason, EPA has decided that the ongoing assessment of vanadium pentoxide toxicity would benefit from a concurrent, systematic evaluation of all of the available vanadium speciation and toxicity information."
Asked for further explanation, IRIS Director Vincent Cogliano said last month, "vanadium chemistry is very complicated. We thought that we'd get a better, more defensible assessment if we folded vanadium pentoxide into a larger vanadium assessment." He added that a deciding question was, "What are we really looking at, total vanadium or vanadium in a particular oxidation state?"
The IRIS agenda adds that the new assessment of "vanadium-containing compounds" will start near the beginning of the IRIS process, undergoing scoping and problem formulation steps, systematic review to investigate and analyze human health risks and peer review by the Chemical Assessment Advisory Committee. EPA created that new subcommittee of the agency's Science Advisory Board to peer review IRIS assessments.
'Consensus Thinking'
"We're glad to finally see it," an industry source says of EPA's decision. "I think they spent a lot of time talking to the program offices. It [appears to] represent a lot more consensus thinking around the agency, and if true, that's a good thing."
The source adds that the V2O5 assessment "was started before all these reforms were put into place," and that it's a "good thing to put it into a larger assessment" in part because the pushed back time line "will allow EPA to give full consideration of" the industry-military research program "instead of at the last minute."
MacGregor describes the vanadium compounds as having "very little safety research published," a situation that seems likely to complicate EPA's efforts to assess the compounds. "There's significant uncertainty about vanadium," she said. "Research is very much needed."
MacGregor described some of the project's earlier work as "looking at the mode of action of vanadium pentoxide, which does not support a genotoxic [mode of action (MOA)] or a linear cancer risk assessment."
A genotoxic MOA or uncertainty about the MOA generally leads EPA to default to a conservative linear cancer risk modeling approach which assumes that there is no safe level of exposure to the contaminant under assessment in an effort to be health protective. A draft V2O5 assessment EPA circulated for interagency review in the summer of 2014 concluded the chemical is a "likely" carcinogen. EPA's last public draft, released in September 2011, includes a reference concentration (RfC), or the maximum amount of a substance that EPA estimates can be inhaled daily over a lifetime without associated adverse health effects, of 1x10^-5 milligrams per cubic meter of air and an oral reference dose (RfD), analogous to the RfC for ingestion, of 9x10^-4 milligrams per kilogram body weight per day.
That 2011 draft also included an inhalation unit risk (IUR), or an estimate of cancer potency when inhaled, of 3.4 per milligram per cubic meter of air. Critics counter that these risk estimates are unnecessarily stringent and ignore data justifying a softer limit. They argue that the new data justify their long-running claims that the agency's risk estimates are orders of magnitude below naturally occurring background levels, and are skewed by flawed data that EPA used in crafting the assessment.
MacGregor's group is working on two more publications about vanadium compounds other than V2O5. These toxicology studies are of acute and short-term repeat exposures by inhalation. "They demonstrate other vanadium compounds are much lower toxicity than vanadium pentoxide," she said. "Vanadium pentoxide is the most toxic of the [vanadium] compounds assessed."
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EPA, NIH Offer $1M to Spur Improved Toxins Testing
Jan 8, 2016 | E&E Greenwire
By Sam Pearson
U.S. EPA and other federal agencies will work together to give away $1 million to researchers who can develop methods to produce more accurate tests to screen toxic chemicals.
Called the "Transform Tox Testing Challenge," the project rolled out today is a new way of motivating the scientific community to prioritize important research for EPA, officials said.
Working with two units of the Department of Health and Human Services -- the National Center for Advancing Translational Sciences and the National Toxicology Program, branches of the National Institutes of Health -- EPA aims to drum up interest from scientists whose innovations will be needed to make it easier for the agency to determine the safety of potentially harmful substances.
If Congress passes legislation this year to update the Toxic Substances Control Act of 1976, it will create new mandates on EPA to evaluate the safety of chemicals used in the United States. But to do so effectively, EPA will need to develop ways to test chemicals faster and more reliably, many experts believe (E&E Daily, June 23, 2015).
Under Senate legislation, S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," the agency would also be prodded to reduce the use of animal testing and pushed to accelerate the use of automated chemical screening technology instead.
This technology, known as high-throughput screening, allows thousands of chemicals to be tested using automated processes meant to gauge whether they cause certain types of biological activity.
EPA said that with current technology, high-throughput screening can struggle to identify chemicals that are capable of metabolizing into more toxic forms when they enter the human body.
The idea of the new initiative is to prod scientists to develop methods that can account for this possibility, EPA said. The agency also today launched a new website to tout the initiative.
The contest will proceed in three stages. Until April 8, scientists may submit "practical designs that may be fully implemented." Up to 10 of these may receive a $10,000 prize and move on to the next round.
By then, only five proposals will receive $100,000 awards and advance to the final round. At that point, participants must show "a commercially viable method or technology for EPA and its partners to demonstrate and test," according to EPA.
The top proposal will then take home a $400,000 award.
"This will help researchers more accurately assess effects of chemicals and better protect human health," EPA said in a statement.
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Five Reported Injured in Massachusetts Chemical Plant Explosion
Jan 8, 2016 | Wall Street Journal
By Associated Press
Authorities say a reported explosion at a Dow Chemical plant in northeastern Massachusetts has injured five people and damaged part of the building.
Firefighters, paramedics and police responded to the plant in North Andover at about 2:30 p.m. Thursday.
North Andover Town Manager Andrew Maylor said there are reports of five people being brought to hospitals, including one person who was critically injured. Mr. Maylor says no chemicals were released into the air and there is no danger to the surrounding area.
Local, state and federal authorities are at the scene. The cause of the blast is under investigation.
A Dow Chemical spokeswoman didn’t immediately return a message Thursday.
A worker was killed in a chemical explosion at the same plant in 2013.
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Fire Marshall: Chemical Explosion Unrelated to 2013 Death
Jan 8, 2016 | Washington Post
By Associated Press
The Massachusetts Fire Marshal says an explosion at a chemical plant that injured four people had a different cause than an explosion at the same plant in 2013 that killed one.
Fire Marshal Stephen Coan says a preliminary investigation found that the explosion Thursday at the Dow Chemical plant in North Andover was caused when a chemical used in the manufacture of LED lights made contact with water.
Coan says Dow is fully cooperating in the investigation.
Emergency workers responded to the plant 30 miles north of Boston at about 2:30 p.m. Thursday. Officials said there was no fire, and no chemicals were released into the air.
Hospital officials said the victims had shrapnel and burn injuries.
The 2013 explosion was caused when a different chemical came into contact with air.
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Report Finds Potential Chemical Exposure at Ohio Nuclear Site
Jan 8, 2016 | E&E Greenwire
Federal nuclear weapons workers may have seen less significant health improvements in the past 20 years than previously thought, according to a new government report.
For years, the Department of Labor's program to aid nuclear workers with health problems, called the Division of Energy Employees Occupational Illness Compensation, has assumed that conditions at federal nuclear sites have become safer since 1995.
A report last month from the National Institute for Occupational Safety and Health casts doubt on that assumption. The report, a health examination at the Portsmouth Gaseous Diffusion Plant in Scioto Township, Ohio, found that air sampling at the now-shuttered uranium enrichment plant contains a potentially lethal gas, hydrogen fluoride, at levels up to 30 times the suggested limits.
The report found that workers at the site were concerned about their potential exposure to toxic chemicals, and five had experienced health problems they believed were the result of their jobs.
"Several employees expressed concern that they felt rushed to complete job tasks and that some managers placed production goals ahead of safety," the report said. "Employees believed these problems have led to near misses and accidents."
Under Department of Labor regulations, claims examiners are supposed to assume that nuclear workers were not exposed to harmful chemicals if the alleged exposure came after 1995. Amanda McClure, a spokeswoman for the department, said the findings didn't require that policy to change.
"We will take NIOSH's Portsmouth facility report into consideration on a case-by-case basis," McClure said.
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Maintaining Confidence, McCarthy Expects ESPS Stay Ruling Within Weeks
Jan 8, 2016 | Inside EPA
By Abby Smith
EPA is expecting an appellate court to decide whether to grant a stay of its existing power plant greenhouse gas rule within the coming weeks, says Administrator Gina McCarthy, reiterating her confidence that the court will rule in the agency's favor due to a lack of demonstrated harm by challengers and the support of many utility groups for the rule.
“We'll be getting a decision in the next couple weeks or so,” McCarthy said, speaking at a Jan. 7 Council on Foreign Relations (CFR) event, her first public appearance since December's international climate talks in Paris.
She stressed that “the support from many of the utilities -- or certainly the lack of challenge -- speaks volumes as to whether or not we did this right.” She added: “So there's no reason . . . there's no damage that would warrant a stay that any of us can identify. We're really hopeful on it.”
Observers have said they expect a ruling from the U.S. Court of Appeals for the District of Columbia Circuit onseveral motions from challengers to stay EPA's power plant existing source performance standards (ESPS) early this year, though McCarthy's comments are the first indication from the agency of just how soon it expects the ruling.
Obama administration officials, including McCarthy, have been largely consistent in their defense of the rule against a stay. In addition, both environmentalists and even some industry lawyers note that winning a stay is historically very difficult, and that opponents of the ESPS face a high bar in this case.
During an October event, Van Ness Feldman attorney Kyle Danish said such requests face an “uphill battle,” adding that states and industry would have to prove they will suffer “irreparable harm” while the litigation is ongoing.
But the agency's Dec. 3 motion opposing a stay emphasized the extended planning period, until 2018, allowed by the final rule, as well as a two-year delay to the start of the compliance period, until 2022 -- combating state and industry claims that they must begin compliance action now.
“Each state is free to elect to have EPA do all of the work required to adopt and implement standards within the state, in which case the Rule imposes no deadlines or burdens on the state at all,” EPA added in the motion.
At the CFR event, McCarthy again underscored growing utility support for the rule, citing events during the international climate talks where utility groups appeared by her side to tout the ESPS.
At one such event, held Dec. 5 in Paris, utility executives and officials with the Edison Electric Institute said that utilities will “exceed” the ESPS' targets, and that they consider the rule an “investment opportunity.”
McCarthy said that while in Paris, she found herself doing “a lot less talking” than anticipated about the ESPS because utility officials were there showing their support for the rule.
“That is quite a change. [Utilities] were the ones talking about their ability to meet this, its consistency with the way in which investment is happening in the U.S., and how this is the direction that we need to take in order to get investment once again in our energy infrastructure so that we can meet the challenges of today and tomorrow,” McCarthy said.
Further underscoring her confidence that the agency will win the stay ruling, McCarthy noted that her focus has been on states' compliance actions. “I think that the biggest thing that we're looking at is to just make sure that we're continuing the conversation with states,” she said, adding that the agency is working to ensure states submit either initial or final compliance plans by the Sept. 6 deadline.
“I've been to many meetings, and I'm seeing nothing but very positive energy around this. The states are beginning to work together -- not just individually but together -- meeting to start making choices about where they think they want to head,” McCarthy said. “I'm pretty confident that we're going to have the plans in.”
Paris Leadership
McCarthy during her remarks also emphasized the importance of U.S. leadership in securing an international climate agreement in Paris, noting that domestic action under President Obama's Climate Action Plan, as well as bilateral agreements with countries like China and Brazil, were key in bolstering the discussions in Paris.
And she expects U.S. leadership to continue as countries work to solidify terms of the agreement, including measures for transparency and accountability. She noted that EPA will be working in conjunction with the State Department to “make sure that this agreement is cast in stone to the extent that we can and provides that positive momentum moving forward.”
McCarthy says that during the Paris negotiations, she spent time explaining to countries what the steps for a reporting and verification system might look like. She expects it could look similar to the approach EPA uses with states in implementing its national ambient air quality standards, including emissions inventories, analyses to determine appropriate actions and reports every few years to ensure standards are being met.
“What EPA does, and what we were doing at the conference and the convention, is to basically outline what those steps might look like and why they're not just a measure of accountability, but why it's smart for developed and developing countries to do that,” McCarthy said, adding that the challenge for EPA will be to help with capacity building in developing countries to ensure they can adequately meet the transparency requirements.
In addition, McCarthy listed three domestic priorities EPA will tackle in 2016: strengthening rules on heavy-duty vehicles, ramping up action on hydrofluorocarbons and establishing rules for limiting methane in the oil and gas sectors.
“We have a series of work that's going to continue, but we are not going to take our eyes off the ball of sharing our expertise in supporting this international effort, which for the first time has a framing that could make it very successful, and we intend to get it there,” McCarthy said.
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Air Officials Cautiously Optimistic Ga. Can Meet Goals
Jan 8, 2016 | E&E Energywire
By Kristi E. Swartz
Georgia is on track to surpass an initial goal to reduce carbon emissions from its power sector, a state air official said yesterday.
Under targets set by U.S. EPA's Clean Power Plan, Georgia must cut its emission rate 33 percent from 2012 levels by 2030. If the state decides to require power generators to meet a specific rate of emissions to obtain this goal, then Georgia will emit around 1,200 pounds of carbon dioxide per megawatt-hour between 2022 and 2024.
This is below an incremental target of 1,290 pounds of CO2/MWh, according to Bert Pearce, an environmental engineer with the Georgia Environmental Protection Division's air branch.
"You can see the first interim goal, we've already met that," said Pearce, speaking to a packed room for the EPD's latest stakeholder meeting on the Clean Power Plan. "If we do everything we say we're going to do, we'll be below that during this period."
Pearce was referring to EPD's statewide data that is a combination of the types of energy generation resources that are currently on the grid as well as what's ahead. This includes the state's continued transformation away from coal and adding natural gas, nuclear and renewable energy.
His statement drew concerns from those in the audience, including a Georgia Power official, who pointed out that there were caveats to EPD's assumptions.
"EPD's estimate of future CO2 emissions in Georgia is based on their review of public information about the electric generation mix in 2020. However, this method does not include important factors like growth, changes in fuel prices and other variables," Georgia Power spokesman John O'Brien said in an emailed statement to EnergyWire after the meeting.
The public will get a look at Georgia Power's projected growth and what, if any, types of generation the utility needs to fuel that soon. The utility is set to file its long-term energy plan with the Georgia Public Service Commission by the end of the month.
EPD's Air Protection Branch Chief Karen Hays said others at the meeting suggested they weren't sure about the agency's data. She said EPD's data is based on current information and internal assumptions.
"It's always in flux, that's the problem," she said. "The next time, the number might be different, we might have different information. But we're trying to look at, 'OK, based on what we know, where do we think we'll be.'"
The chief topic of yesterday's meeting was whether Georgia should participate in an optional incentive program that encourages states to build wind and solar energy generation and install energy efficiency measures in low-income communities between 2020 and 2022.
EPA will give states that opt to participate in the rule's Clean Energy Incentive Program (CEIP) allowances, or "emission rate credits."
Pearce offered two suggested timelines for ways the state could do this, allowing for time for solar, wind and energy efficiency projects to be vetted and approved. One scenario would put the solar and wind generation on the grid in late 2020, after the state could start receiving credit under the CEIP.
The second timeline is more aggressive.
Pearce said the challenge is that a project under CEIP cannot start construction until EPA approves a state compliance plan. This means rapidly adding more wind, solar or energy efficiency now would not do anything to boost Georgia's effort to meet its targets.
States must file initial plans with EPA by September 2016. They then can ask for a two-year extension, which Georgia and many other states plan to do.
Members of the state's clean energy community urged Georgia to submit its state plan at least by 2017, which would ensure more time to take advantage of the CEIP.
"The idea that you could get CEIP credits ahead of time makes sense, that's very practical," said Anthony Coker, vice president of market development at Atlanta-based Hannah Solar.
Simon Mahan, director of the Southern Wind Energy Association, suggested that moving more quickly would allow projects to take advantage of federal renewable tax credits, which Congress recently extended, but not indefinitely.
"If you can get all of these timelines in sync with one another, you can get a better idea of when you should start submitting [project] proposals," he said.
EPD's Hays said given the complexity of writing a state plan, it's likely Georgia is going to need all of that two-year extension. The state is pursuing whether there are other options such as prequalifying certain renewable energy and energy efficiency projects as a way to make the process go more quickly.
"There's so many different moving parts, there's so many pros and cons to the different decisions," she said.
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EPA Working to Ensure Paris Deal ‘Cast in Stone'
Jan 8, 2016 | Bloomberg BNA
By Andrew Childers and Andrea Vittorio
The Environmental Protection Agency will spend the next year working to ensure that the climate change deal reached in Paris “is cast in stone to the extent we can,” Administrator Gina McCarthy said.
The EPA's climate change regulations, particularly the Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide limits on the fleet of existing power plants, were key in providing the U.S. with credibility as it worked with nearly 200 other countries to cement the international climate deal reached in Paris last December, McCarthy said. Now the Obama administration will spend the remainder of its time in office implementing that rule, as well as pursuing new limits on methane emissions from landfills and new oil and gas wells and establishing additional limits on carbon dioxide emissions from trucks as a way to ensure that the U.S. can live up to the emissions reductions pledge it made as part of the agreement, McCarthy told the Council on Foreign Relations Jan. 7.
“2016 is not going to be a year we slow down. It's a year we build on the momentum of the historic year that passed,” McCarthy said, echoing points she had made in a Jan. 4 blog post (01 ECR, 1/4/16).
The Paris Agreement essentially is built on voluntary pledges from developed and developing nations to reduce their greenhouse gas emissions, but it includes binding transparency requirements to verify those actions. Developed and most developed nations will be required to provide detailed reports on their climate actions every two years. Details of the verification process is among the key issues nations will hash out at the next round of UN talks later this year in Morocco (245 ECR, 12/22/15).
‘End of the Beginning.’
The Paris Agreement should be thought of as “the end of the beginning” as nations move from arguing about the issue to acting on it, Paul Bodnar, who directs climate and energy work at the National Security Council, said at a separate Jan. 7 event presented by the Center for Strategic & International Studies in Washington.
“The most important thing we need to do now is to shift our whole focus from negotiating to doing,” he said.
Now that countries have agreed on the need for a low-carbon shift, Bodnar said the next question is pace: “How fast are we going to get there?”
“That's, to me, the organizing principle of what comes next,” he said, for renewable energy and climate finance, for example.
Rick Duke, who helps lead climate efforts at the White House's Domestic Policy Council and Council on Environmental Quality, at the same event highlighted the big renewable energy boost coming from the budget deal that passed Congress just after the Paris accord was reached.
The unexpectedly generous package, which extends tax credits for wind and solar for five years, could spur about $73 billion in investments, according to Bloomberg New Energy Finance estimates (241 ECR, 12/16/15).
“We've got tremendous momentum on solar and wind already,” Duke said at the CSIS event. “And now you've got a clear, stable foundation to continue scaling up those solutions and continue bringing down the cost.”
International Inventories
In addition to its suite of domestic greenhouse gas regulations, the EPA also will work with developing countries to improve their ability to measure their greenhouse gases as nations prepare to meet the Paris Agreement's transparency and verification requirements.
“Most countries hate to be the one who didn't meet the goals they articulated and that's a huge driver when you get into the international world,” McCarthy said.
Accurate inventories will be vital to ensuring nations meet those goals because it is quite easy for inherent biases and assumptions to skew estimates of emissions, she added.
“It's amazing how bad we are at estimating that before we look at it,” McCarthy said.
The EPA has offered its expertise to developing countries, including China, as they begin to work on their emissions inventories, even embedding agency staff overseas to provide technical assistance.
While working internationally to improve emissions inventories, McCarthy said the EPA also is focused on ensuring its own measurements and data are as accurate as possible.
“We're going to keep looking at the science around this and the analytics,” she said.
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EPA, Industry Defend 'Systemic, Widespread' Finding
Jan 8, 2016 | E&E Energywire
By Mike Soraghan
U.S. EPA and the oil and gas industry yesterday defended the agency's finding that hydraulic fracturing doesn't cause "systemic" problems for groundwater, after the agency's science advisers formalized their criticism of the finding.
"EPA's hydraulic fracturing assessment advances scientific understanding of the potential impacts of hydraulic fracturing on drinking water resources and the factors that may influence those impacts," the agency said in a statement passed along by a spokeswoman.
The statement was in response to a draft letter issued yesterday by EPA's science advisers criticizing an EPA study released in June that found hydraulic fracturing has not caused "widespread, systemic" problems with drinking water (E&ENews PM, Jan. 7)
The letter added that the Science Advisory Board is concerned that "this statement does not reflect the uncertainties and data limitations described in the body of the Report associated with such impacts."
The statement also stressed the upcoming public comment sessions to be done by teleconference on Feb. 1 and 2. The agency expects a final report from the review panel this spring.
"We're very interested to hear the public comments and feedback from the SAB," the statement said.
To industry, the June study's finding was a clean bill of health, although the study did say there had been instances of contamination from fracturing.
Green groups have been seething about the EPA headline, saying it turned a lack of evidence into proof that fracking is benign. They sought to emphasize what EPA's release had downplayed -- that there were instances of contamination.
Scott Segal, whose firm, Bracewell & Giuliani, represents Cabot Oil & Gas Corp. and other oil and gas producers, said yesterday that EPA's finding was consistent with those of many other reports.
"The experts at EPA's Office of Research and Development should not let largely discredited, anecdotal or litigation-inspired evidence stand in the way of conclusions based on scientific consensus," Segal said.
But environmental groups are praising the review panel's criticism.
"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," said Wenonah Hauter, executive director of Food & Water Watch.
The letter also says the study should include more explanation of three major EPA investigations into water contamination near drilling sites that were scuttled by agency higher-ups. The sites are in Dimock, Pa.; Pavillion, Wyo.; and Parker County, Texas.
A state study last month concluded that fracturing is unlikely to have contaminated drinking water east of Pavillion. The report was disparaged by the residents who had complained about the water quality, but it was highlighted yesterday by Senate Environment and Public Works Chairman James Inhofe (R-Okla.), who had been critical of EPA's contamination findings.
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Jan 8, 2016 | Washington Post
By Todd Tucker
On Jan. 6, TransCanada went to court to claim that the Obama administration’s failure to approve the Keystone XL pipeline violates U.S. obligations under the North American Free Trade Agreement, or NAFTA. The company is asking for $15 billion in compensation from U.S. taxpayers.
This mixes two challenges confronting President Obama and Democratic politicians in recent years. Environmentalists have turned the ecologically questionable tar sands pipeline into a no-fly-zone in domestic politics. Meanwhile, labor and other groups have made opposition to NAFTA-style deals essential for their electoral support. In the face of this pressure from the left, even one-time advocates of both the pipeline and trade deals like Hillary Clinton have reversed course on both.
The U.S. has never lost an ISDS lawsuit. Keystone might break the winning streak.
A bit of background before moving into what TransCanada’s case could portend. NAFTA (much like the proposed Trans-Pacific Partnership, or TPP) allows foreign investors to bring direct legal challenges against a wide range of host state regulations. These cases are heard outside of national courts, by panels of three arbitrators selected by the litigating investor and government. These arbitrators lack the formal power to overturn host state policies, so instead order the payment of cash compensation that can then be enforced in national courts.
While the U.S. has never lost a NAFTA case, Canada and Mexico have — along with dozens of other countries under similar trade and investment pacts. This investor-state dispute settlement (ISDS) system has become increasingly controversial.
Could the Keystone NAFTA case end the US’ winning streak? I predicted the possibility four years ago.
All else equal, the case would seem like a good bet for the investor. As detailed in TransCanada’s initial NAFTA filing, after initial enthusiasm, the U.S. sent wildly mixed messages about whether the pipeline would be approved – delaying the review process far beyond the average length of time. The U.S. has approved other pipelines, and admitted that this process was different in its degree of politicization. Even critics of Keystone XL (including Obama) admit that blocking the pipeline will have a limited impact on climate emissions, and others note that the campaign was motivated primarily by social movement politics. This is far from the dispassionate, consistent regulatory process that investment arbitrators tend to favor.
In short, TransCanada has a decent legal claim that the U.S. discriminated against its pipeline in an arbitrary manner. Formally speaking, the company’s claim is that the U.S. violated NAFTA’s national treatment, most-favored nation treatment, expropriation, and fair and equitable treatment obligations. To fully cover its bases, TransCanada is also launching a constitutional claimin U.S. courts.
…except for the fact that the U.S. uses not just law but all forms of influence.
But all else is not equal. First of all, the U.S. is the respondent. The State Department’s defense lawyers are widely regarded as the best in the business. They are among the architects of the ISDS system, and can be expected to use every available defense.
Moreover, the U.S. brings considerable informal political pressure to bear. For instance, Abner Mikva, a former judge appointed as a NAFTA arbitrator by the U.S. in a close case, claims to have been politically pressured to side against the investor.
Such formal and informal tactics amount to what Lawrence Helfer and Anne-Marie Slaughter call a “system of constrained independence of international tribunals,” or what Karen Alter labels “altered politics” — where states combine litigation, bargaining and leverage to influence courts and other legal actors.
Moreover, international adjudicators have shown increased reluctance to rule that economic liberalization commitments always trump public interest policies.
In my own interviews with arbitrators, I have found evidence to support either the argument that TransCanada’s case is a sure dud or a winner. On the one hand, arbitrators do express awareness of their political context, and a desire to avoid second-guessing complex domestic regulation.
On the other, they are also sensitive to the charge that the system is rigged in favor of developed nations. Finding against the U.S. could enhance the system’s legitimacy with the developing nations that are overwhelmingly the targets of ISDS cases. This unpredictability — both legally and politically — has led some scholars to call the cases “crap shoots.”
But winning the case isn’t the only way for TransCanada to win on the issue.
TransCanada may not need to actually win for the case to serve a useful function. Over a third of launched ISDS cases end in settlement. The threat of cases can sometimes get governments to rethink their regulatory stance, as John Oliver’s crackpot comedic investigators showed in their exposé of the effect of tobacco company threats against public health measures in Africa.
TransCanada needn’t look so far from home for a template. Within days of being swept into office late last year, Canada’s Trudeau government threatened to sanction the U.S. if it did not remove country-of-origin labels (COOL) on beef. Canada and Mexico had won a World Trade Organization case against the labels, and knew that they had allies in Congress who wanted to get rid of COOL for their own reasons. The sanction threat was enough to get Congress to repeal the labels, and then some.
In an example of what I’ve called “chilling inflect,” Congress went beyond what the WTO required — all while using the political cover of compliance obligations.
Will this lawsuit affect the U.S. primaries?
While the NAFTA case’s benefit for TransCanada is uncertain, the harm to Canada’s image among U.S. liberals is not. The Canadian government already created some ill will when it leaked private conversations with 2008 Obama campaign advisor Austan Goolsbee that suggested the candidate’s criticism of NAFTA was disingenuous. This later proved right.
With TransCanada’s latest move, left-leaning congressional TPP opponents will use the case as symbolic kindling in their argument against the pact, which includes Canada. Former Maryland governor Martin O’Malley — who is challenging Hillary Clinton from the left — is already making this point. This opportunistic use of litigation horror stories has its tactical risks, especially since this is a NAFTA case and NAFTA will not be phased out, whether or not there’s a TPP.
Nonetheless, this obscure legal case is unlikely to directly swing many votes. Polls show the public generically supports trade, although there is little dataon how they respond to non-traditional trade issues like ISDS.
The case’s impact on the election — if any — is likely to be indirect, primarily affecting congressional races. Some Democratic-leaning constituencies, for instance – including labor unions — have pledged to work to turn out the votebased on how strongly candidates oppose the TPP. To the extent TransCanada’s latest action provides them with a more salient hook, these pressure tactics will be easier to employ.
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High-Stakes Claims, Hazy Precedent Steer Keystone XL Lawsuit
Jan 8, 2016 | E&E Energywire
By Ellen M. Gilmer
TransCanada Corp.'s attempt to resuscitate the Keystone XL pipeline promises a drawn out legal battle over President Obama's rejection of the long-embattled oil project.
The pipeline backer Wednesday lodged dual complaints challenging Obama's November rejection of the proposed oil pipeline. While one complaint seeks to recover sunk investments under the North American Free Trade Agreement (EnergyWire, Jan. 7), the other asks a federal court in Texas to declare that Obama was constitutionally out of bounds.
The U.S. District Court for the Southern District of Texas has its work cut out for it. TransCanada's lawsuit makes high-stakes claims about the limits of presidential power and raises rarely litigated issues of executive authority over cross-border projects.
"The asserted Presidential power to prohibit construction of the Keystone XL Pipeline exceeds the Constitution's limits because it concerns a matter committed to Congress," the company's lawyers said in the complaint, "and is contrary to the express and implied will of Congress."
The lawsuit encapsulates the long-running feud between the Obama administration and Republicans and some Democrats in Congress over whether the pipeline is in the national interest. Using power reserved under an executive order, Obama decided in November that the pipeline did not serve the national interest because approval of the project -- which has drawn massive opposition from environmentalists -- would undermine the United States' negotiating power in global climate discussions.
TransCanada counters that the president's executive authority is limited by the will of Congress, which has authority over interstate and international commerce, and that his decision cannot be based on overly broad factors like international negotiations.
Environmentalists jumped to the administration's defense yesterday, arguing that TransCanada's claims were flimsy and fueled by political motives.
"This is not a separation-of-powers issue," Center for Biological Diversity attorney William Snape told EnergyWire. "I think what TransCanada's doing is laying out that they're not done fighting politically. They're throwing a bucket of spaghetti on the ceiling and seeing what sticks."
Legal precedent
Applicable legal precedent for TransCanada's challenge is sparse and murky, experts say.
In fact, TransCanada has made its own contributions to case law that doesn't help the company's current arguments. TransCanada was an intervenor-defendant in a 2009 case brought by American Indian tribes challenging the approval of the original Keystone pipeline. The U.S. District Court for the District of South Dakota ruled for the government and TransCanada, finding that the tribe lacked standing and, notably, that the president has "inherent Constitutional authority to conduct foreign policy on behalf of the nation."
The next day, the U.S. district court in Washington, D.C., handed down a similar ruling underscoring the role of the president in approving cross-border pipelines. TransCanada also took the government's side in that case.
"Those are very bad cases for TransCanada," said James Coleman a law professor at the University of Calgary who helped represent TransCanada in those cases. But, he added, the courts' conclusions were never subjected to further judicial review in an appellate court, and the holdings only reach so far.
TransCanada echoed that position in this week's legal filings. First of all, they were decided in different jurisdictions so would be persuasive but not binding in the Houston court. But more importantly, TransCanada's lawyers said, the decisions do not uphold the rejection of a pipeline, and they do not involve presidential actions that go against the will of Congress.
"District court decisions noting the President's power to grant permits for cross-border oil pipelines have pointed to this tradition of the exercise of limited powers and the (then existing) absence of any objection by Congress," they wrote. "But none of these decisions affirmed the denial of a permit, much less one undertaken over the objection of Congress and based on a novel rationale well beyond the traditional criteria or scope of Presidential action."
For cases supporting its current cause, TransCanada is reaching back nearly a century, leaning in part on a 1920 dispute between the executive branch and Western Union Telegraph Co. Raising monopoly concerns, the executive branch tried to block Western Union from extending a submarine cable from Florida to offshore communications facilities. The U.S. District Court for the Southern District of New York found that the president was exceeding his power and interfering with commerce that falls under Congress' authority.
"The implications of the power contended for by the government are very great," Judge Augustus Hand wrote in the opinion, noting that such power would be a slippery slope that could give the president tyrannical power over exports, imports and other matters. The 2nd U.S. Circuit Court of Appeals affirmed.
The power to block Keystone is just the kind of unilateral decision the courts were aiming to avoid, TransCanada argued this week.
Lawmakers' wishes
Congress has passed several statutes since the Western Union case outlining the criteria for presidential powers over cross-border facilities, including cables, electric transmission, natural gas pipelines and international bridges. But lawmakers have not expressly addressed presidential powers over cross-border oil pipelines.
That's where the analysis of Obama's action gets sticky.
"For oil, we don't have a statute. What we've had is that the president has asserted his authority under an executive order to decide these issues," Coleman said. "The president's never denied one, so there's never been an opportunity to test whether the president has the power to deny this type of pipeline."
Tulane University Law School professor Keith Werhan said the scenario creates unpredictable litigation prospects, with few clear statutes or standards on which the court can rely.
"If the president can't trace his authority to a statute, you get into the prospect of reading the tea leaves," Werhan said. "There are no hard and fast rules."
According to TransCanada, the court should look to the legal framework established in the seminal Youngstown v. Sawyer, a 1952 dispute over President Truman's decision to seize steel production facilities to avoid a strike during the Korean War. A concurring opinion in the case that is often applied today establishes a rough legal approach to the legality of unilateral presidential decisions in the context of congressional support.
The framework suggests that presidential actions that have congressional support are most likely legitimate, presidential actions on subjects Congress has not addressed are more limited, and presidential actions that go against congressional orders are most limited.
Under a Youngstown analysis, TransCanada argues, Obama's decision would fall into the third category because the House and Senate have repeatedly passed bills in recent years to support construction of Keystone XL.
Lewis & Clark Law School professor William Funk noted that TransCanada's argument could be persuasive, given that the concurring opinion in Youngstown put Truman in the third category after finding that Congress had clearly signaled its opposition to his action.
And the fact that the pro-Keystone bills never became law (one was vetoed; others did not advance) does not detract from their status as indicators of congressional will, Werhan said.
"It suggests he's acting contrary to congressional will," he said. "Even though Congress couldn't muster a statute to block it, Congress is making clear that it doesn't want that action to happen."
Lewis & Clark Law School professor Melissa Powers disagreed, questioning how failed congressional actions could supplant authority granted in an executive order.
"Congress could not override his veto because there were not enough votes in the Senate," she said in an email. "Nonetheless, TransCanada wants the court to find that failed 'legislation' somehow should have operative effect overriding the Executive Order. I just don't see how that's a viable claim."
In any case, Funk said, a conclusion that Obama acted contrary to Congress' wishes does not necessarily mean he acted beyond his powers. A recent Supreme Court case found that Obama acted within his authority in a question of foreign state recognition even though Congress had passed a law directly contradicting his position.
Even in the second Youngstown category, the pipeline rejection would be considered an overreach, TransCanada argues, because Congress had never acquiesced to the president's reasoning that approving the pipeline would undermine global climate negotiations.
"The President's need to prohibit international and domestic trade to secure greater negotiating power with foreign states resembles no rationale any President has asserted to limit and transborder facilities in the past," the company's lawyers wrote. "[T]he breadth of its effect is unprecedented, and the prohibition encroaches on the power committed by the Constitution to Congress to regulate foreign and domestic commerce."
Still, Coleman said, the analysis is strained. Congress may have signaled its support for the pipeline, but it never expressed exactly what criteria it wanted the president to use in making his decision.
"Congress has never suggested that the president has some authority to consider global perceptions and approve or deny a permit on that basis," he said. "But at that point, you're grasping at straws for something. That's the messy situation that you're in if you decide, 'Well, we have to figure out what Congress would want the president to do.'"
Snape agreed, arguing that TransCanada is "splitting hairs" in its analysis of Obama's reasons for rejecting the pipeline. The president's decisionmaking authority inherently includes the ability to consider constantly changing factors, he said.
"They are splitting hairs," he said. "That does not sound convincing to me at all. We live in different times, and the president makes determinations on the national interest based on the times he or she is in."
Prospects
Experts watching the case remained circumspect about its prospects in court.
"You always have worse than even odds when you're a private company suing the government," said Coleman, the Calgary professor. "But these are open questions, and it's quite possible that you would win."
Coleman said TransCanada's move to file the case in Houston was likely a strategic attempt to end up in the 5th U.S. Circuit Court of Appeals after the district court issues its decision. The 5th Circuit recently ruled against Obama's unilateral immigration amnesty plan.
"Sometimes courts, when they see particularly aggressive assertions of unilateral executive power, they're more likely to push back," he said.
Still, Snape, who said CBD has no current plans to intervene in the lawsuit, remained confident in the government's position in the case.
"That's exactly why we have a president," he said. "TransCanada ought to bone up on U.S. high school civics and how the Constitution works."
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