Preview Newsletter
PM ACC 1/12/2016
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Critics of Obama Trade Pact Seize on Keystone Dispute
Jan 12, 2016 | The Hill - E2 Wire
By Vicki Needham
Opponents of President Obama’s Pacific Rim trade pact are seizing on a new lawsuit over the Keystone XL oil pipeline in an attempt to galvanize opposition in Congress. -
(ACC Mentioned) America's Great Leap Forward: Obama's Watermelon Environmentalism
Jan 12, 2016 | Science 2.0
By Gil Ross
This week, President Obama gets the podium to harangue us with his final retrospective, and prospective: the State of the Union address. -
California Considers Bill for Chemical Disclosure in Cleaning Products
Jan 12, 2016 | Chemical Watch
By Kelly Franklin
A California bill that would require manufacturers to fully disclose chemical ingredients in cleaning products has raised industry concerns over protection of trade secrets, while NGOs say the measure is needed to allow consumers to make informed purchasing decisions. -
Vowing 'Never again,' Lawmakers Offer Bills on Methane Leak
Jan 12, 2016 | E&E - Greenwire
By Anne C. Mulkern
The operator of a Los Angeles drill site with a massive methane leak would be barred from injecting more natural gas and older wells would be blocked from production until state agencies deemed them safe, under legislation announced yesterday. -
AAR Outlines PTC Progress, Sets Goals for 2016
Jan 12, 2016 | Progressive Railroading
Positive train control (PTC) implementation is expected to cost the freight railroad industry $9 billion to $10 billion, according to a PTC progress update released yesterday by the Association of American Railroads (AAR). -
FERC to Launch 'Significant Outreach' on Clean Power Plan
Jan 12, 2016 | E&E - Energywire
By Rod Kuckro and Emily Holden
The Federal Energy Regulatory Commission will soon begin an informal effort to engage stakeholders nationwide about a range of concerns with U.S. EPA's Clean Power Plan, said FERC Commissioner Colette Honorable in an interview. -
TFC Utilities' Kellerman Says Power Plan, Paris Agreement Catalysts for Transforming Electric Power Sector
Jan 12, 2016 | E&E TV
How will the grid need to evolve to meet the pledges made by the United States in Paris? During today's OnPoint, Larry Kellerman, managing partner at Twenty First Century Utilities and the former president of Goldman Sachs' electric power business, discusses... -
EPA IG Launches Review Of Air Monitoring Network
Jan 12, 2016 | InsideEPA
EPA's Inspector General (IG) is launching a review of the agency's air monitoring network in order to assess whether it meets EPA's criteria for monitoring, following an IG report that faulted EPA Region 6's monitoring. -
Utility Groups Urge Appellate Review Of CWA Groundwater Liability Claims
Jan 12, 2016 | InsideEPA
By David LaRoss
Electric utilities are urging two federal district judges to allow a speedy appellate ruling on whether the Clean Water Act (CWA) regulates contaminants from coal ash disposal sites that reach protected surface waters through a groundwater connection... -
States Challenge Sierra Club's Intervention in N.D. Case
Jan 12, 2016 | E&E - Greenwire
By Tiffany Stecker
States opposing the Obama administration's contentious rule to define "waters of the U.S." are seeking to limit an environmental group's intervention. -
Calif. Holding 'Very Preliminary' Carbon Market Talks with N.Y.
Jan 12, 2016 | E&E - Climatewire
By Elizabeth Harball
California Air Resources Board Chairwoman Mary Nichols yesterday said her state is in "very preliminary" talks with New York to explore the possibility of linking carbon markets. -
Greens Ask the EPA to Take Over Pollution Enforcement in Texas
Jan 12, 2016 | The Hill - E2 Wire
By Timothy Cama
Two environmental groups are asking the Environmental Protection Agency (EPA) to take over the enforcement of federal air and water laws in Texas, arguing the state is no longer living up to its responsibilities. -
Industries, Environmentalists Clash Over Merits Of Joint NOx-SOx NAAQS
Jan 12, 2016 | InsideEPA
By Stuart Parker
Groups representing the oil, power and other sectors are clashing with environmentalists over the potential merits of EPA establishing a first-time joint national ambient air quality standard (NAAQS) for nitrogen oxides (NOx) and sulfur oxides (SOx)... -
Enviros, Interior Broker Settlement Over Offshore Fracking
Jan 12, 2016 | E&E - Energywire
By Ellen M. Gilmer
Environmentalists challenging hydraulic fracturing in the Pacific Ocean have reached a tentative agreement with the Department of the Interior to end litigation over the practice.
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Critics of Obama Trade Pact Seize on Keystone Dispute
Jan 12, 2016 | The Hill - E2 Wire
By Vicki Needham
Opponents of President Obama’s Pacific Rim trade pact are seizing on a new lawsuit over the Keystone XL oil pipeline in an attempt to galvanize opposition in Congress.
Environmental groups, trade groups and labor unions say TransCanada’s attempt to secure $15 billion in compensation for the rejection of Keystone under the North American Free Trade Agreement (NAFTA) is emblematic of how trade agreements favor corporate interests, harm workers and undermine U.S. law.
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They warn the case is just a preview of what’s to come if lawmakers approve the Trans-Pacific Partnership (TPP), a 12-nation deal that contains new investor-state dispute settlement (ISDS) rules.
Shane Larson, legislative director for the Communications Workers of America, said that “whether it’s TransCanada’s new NAFTA challenge or the recent [country-of-origin meat labels] ruling, we have an unfortunate volume of recent reminders of how trade pacts can be used by corporations to undercut U.S. domestic policy decisions, laws and regulations.”
“And make no mistake, passing the TPP would allow dramatically more companies in more countries to challenge U.S. laws and regulations,” Larson added.
TransCanada Corp. on Wednesday filed a NAFTA case against the United States that says the administration violated the 20-year-old trade pact by preventing the construction of the Keystone oil sands pipeline across the Canadian border.
Separately, the company sued the administration directly over the Keystone decision, arguing the president does not have the authority to reject cross-border pipelines. Legal experts doubt that challenge will succeed.
But observers say TransCanada could have a shot at winning the NAFTA case, which is likely to hinge on whether the company received “fair and equitable” treatment from the United States — a vague term that will be up to a NAFTA tribunal to decide.
Critics of the TPP say the Keystone battle vindicates their long-standing opposition to investor-state dispute rules.
Sierra Club Executive Director Michael Brune said that the “destructive provisions that wrongly empower corporations to attack our safeguards show exactly why NAFTA was wrong and why the dangerous and far-reaching Trans-Pacific Partnership is worse and must be stopped in its tracks.”
Lori Wallach, director of Public Citizen’s Global Trade Watch, said that the TransCanada case is an example of the “attack on U.S. environmental policy that the president insisted could never happen under the controversial investor-state corporate tribunal regime that his Trans-Pacific Partnership trade deal under which U.S. investor-state liability would be doubled.”
The future of the TPP in Congress is uncertain. Most Democrats have come out against the pact, and the reaction from Republicans and the business community has been lukewarm.
That’s starting to change, however. Three powerful business groups — the National Association of Manufacturers, the Business Roundtable and the Chamber of Commerce — endorsed the deal last week, and Speaker Paul Ryan (R-Wis.) has talked of his desire to see it come up for a vote.
“Ultimately, the TPP is a significant improvement over the status quo — for manufacturers and for the broader economy,” the manufacturers said in a statement.
Whenever the trade pact does hit the House floor — which might not be until after the November elections — the margin is expected to be razor-thin. That has both sides girding for a long battle over every possible swing vote.
House Ways and Means Committee ranking member Sandy Levin (D-Mich.), who has said he wants to reach a point where he can back the TPP, said that the NAFTA challenge “further highlights why we must be certain that the Trans-Pacific Partnership trade agreement addresses serious concerns about the investor-state dispute settlement procedures.”
“A full and vigorous public debate is needed to identify problems like this one before the TPP agreement is signed,” he said.
Supporters of the TPP downplay the impact of the Keystone case, with one Senate aide saying the case is unlikely to change many minds about the TPP.
But even then, TPP supporters say it makes huge improvements to the investor-state dispute process by providing greater protections for governments and making is easier to throw out frivolous cases.
Josh Earnest, the White House press secretary, last week said that “ISDS is this dispute resolution process that’s been in place for 50 years, and the United States has never lost a case.”
“But because we’ve never lost a case, it is an indication that we’ve been quite effective in taking other countries and raising concerns about other countries’ practices at the ISDS in a way that has benefited the ability of American businesses to do business overseas,” he said.
“So our strong record in that venue actually, I think, is a strong argument for precisely why Congress should approve the Trans-Pacific Partnership.”
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(ACC Mentioned) America's Great Leap Forward: Obama's Watermelon Environmentalism
Jan 12, 2016 | Science 2.0
By Gil Ross
This week, President Obama gets the podium to harangue us with his final retrospective, and prospective: the State of the Union address. Rumor has it that he’s just about had it with the recalcitrant 114th Congress, and will avoid pushing specific legislation — a fruitless task, he’s learned the hard way, given the sizable majorities of Republicans in both houses. Of course, that hasn’t stopped him from trying. Trying, that is, to get his extraordinarily ambitious domestic agenda implemented by the simple process of rulemaking, thereby bypassing the Legislative branch entirely, ruling from “the White House” through the immensely vast and complex aggregate of federal agencies, who can be depended upon to do his bidding, or else.
More on that soon. Let’s get back to health and science. I’ve heard that he’ll propose a “moon shot” against cancer, inspired by Vice President Biden’s tragic loss of his son to brain cancer. At least it’s not another “Manhattan project,” right? Remember Richard Nixon’s well-funded “War on Cancer” from 1970 or so? How’s that been going?
Surprisingly well, in fact, although the inroads we’ve made against cancer (or more accurately, “cancers,” since the uncontrolled cellular chaos we call cancer is a conglomeration of different diseases) has little to do with that Nixon war. Scientific and medical progress against the various types of neoplasia goes in fits and starts, each incremental advance building upon the last one and supporting further progress. If Obama, or Biden, believe that throwing a few more millions into the NCI pot will help “defeat cancer,” they are as mistaken as those who march in pink to defeat breast cancer. Cancer is largely a disease of aging, and we can only hope to impede it, not conquer it (recent good news from the American Cancer Society notwithstanding, showing the continuing decline in cancer deaths in our country). The gradual downward trend in cancer incidence and death derives from the parallel gradual decline in smoking, mainly, although increased colonoscopic screening for colon cancer has helped, as has better diagnostic imaging and more effective surgical and medical treatments. But a moon shot against cancer is a “who could object” winner, politically.
On more substantive health moves, or lack of them, the recent Omnibus budget bill failed to effectuate the one key item that might actually save more lives than any other: the Cole amendment to the bill (named for the Oklahoma representative who is the main sponsor) would have eliminated the vile “substantial equivalence” date for e-cigarette and vapor products when applying for market approval from the FDA. As written now, the Family Smoking and Tobacco Control Act of 2009 requires and extensive documentation for any “tobacco” product not on the market as of February 2007 to remain on the market. Since there were essentially no e-cigarettes on the market then, if the act is not amended, the entire ecig “industry” — mostly mom-and-pop small businesses — would have to spend millions of dollars and hundreds of man-hours providing a premarket tobacco application (PMTA) to the FDA, a task that will bankrupt just about the entire marketplace. This would leave the reduced-harm products to be scooped up by Big Tobacco, an outcome allegedly feared by the FDA and our other public health officials. Yet, their drumbeat of attacks against ecigs and vapor products indicates an entirely other agenda, for their actions will only keep smokers smoking and keep those cigarette taxes rolling in. The CDC, FDA, NIH, and just about all the academic centers, medical journals and politicians are determined to fear monger and distort and outright lie about the illusory dangers of e-cigs, for a variety of reasons having nothing to do with public health.
You’d think, for instance, that Chicago Mayor Rahm Emanuel would have more important things to worry about than ecigs and vaping, right? Like trying to keep his police force from mowing down innocent minority kids, and then aiding and abetting the coverup of such acts. But no! His Dept. of Health has just released a new PR campaign, with the oh-so-clever headline, “VAPING: LIQUID POISON.” Yet, no one has been harmed at all by ecig vapor. I find it a continued source of frustration and anger at our “public health” gurus that, given that the nation’s most important preventable cause of premature death is cigarette smoking, and yet we focus our resources on fighting against the likeliest best method to help smokers quit.
What else is to be found in the recent Omnibus bill? How about GMOs? You remember, one of the favorite punching bags for the chic progressives who have grown tired of regaling us against vaccines. Frankenfoods! Well, there was a proposal to forbid states from individually mandating the labeling of foods containing GMOs, so as to prevent a hodge-podge of 40+ state regulations on this (of course, there is nothing at all to stop anyone from labeling their own product as “GMO-free”). Sadly, this proposal was excised from the bill before it was signed at December’s end. So when little Vermont implements its GMO labeling law, which could be soon, every food company in the USA, or the world, will have to decide whether to keep sending products to Vermont with a special “Vermont Only” label — or just say “the hell with it, let them eat ice cream.”
Another unscientific effort by Congress was the arbitrary reversal of the FDA’s approval of the AquaAdvantage salmon. After about a decade of evaluation, stalled at the executive branch by the president’s craven distaste for appearing to flout his progressive anti-science base, finally the FDA said that it was all clear for marketing the GMO fish (although not for another 2 or 3 years). Not so fast: the new bill contained a provision that in effect upended the science-based approval, throwing a political- and economic-based monkey wrench into the plan. No big salmon for you.
Biotech agriculture is in fact one of the most promising ways we have to keep malnutrition in check — IF those who oppose science when used in this area will allow it. A few years ago, when GMO corn was sent on an emergency basis to African nations where their populations were starving, the leaders refused to accept it under the belief that such corn was tainted. And Golden Rice remains in limbo, thanks largely to Greenpeace, while hundreds of thousands of impoverished Asians and Africans die of immune deficiencies linked to low levels of vitamin A.
“Reform” of the 39-year old chemical safety law, affectionately called TSCA (Toxic Substances Control Act of 1976), seems about to pass, after almost a decade in limbo. Why does TSCA need reforming? Because the enviro-left got into bed with the American Chemistry Council, whose members — flush with fracking-derived chemical precursors and natural gas — just got tired of fighting Sens. Lautenberg (RIP) and Boxer and their anti-chemical coterie, and said, “OK, let’s all just get along.” Really, the main objections to the law were that it had not led to the wholesale bans and restrictions on chemicals that groups such as NRDC posited to be toxic. Could it be, however, that all those endocrine-disrupting, gender-bending, obesigenic, carcinogenic toxic chemicals were, actually, non-toxic after all? Yes it could! In fact, ACSH did a study of the whole litany of toxic chemical “clusters” identified by NRDC in 2011, and found any objective evidence for chemical toxicity in exactly three out of the 42 alleged.
If finally enacted this year, the reformed TSCA will be a potent drag on chemical innovation, grant even more power to the EPA, and become a lifetime employment guarantor for innumerable petty bureaucrats at the EPA, while conferring absolutely zero health or environmental benefit upon anyone. (The EPA's calculations of the public health benefits of their regulations, like their cost estimates, are derived from computer-modeling mixed with magical thinking). Do we really want to give the EPA even more power over us? They poisoned the Animus River in the southwest by their clumsy investigation of the Gold King mine, destroying heritage sites for Native Americans and befouling the acreage of many ranchers and farmers, without owning up to any responsibility. Imagine what would happen to a small landowner who did the same?
Now, on to the jewel in the Obama crown: his plan to conquer global warming by trashing our estimable power grid and energy supply chain, in his quixotic attempt to hold back the tide of climate change by trashing our fossil fuel industries, with coal being target number one. Recall, the president and his Secretary of State have both been quoted as saying that climate change is America’s most important problem!
Congress over the past 7 years has been uncooperative in helping him and his main accomplices, EPA Administratixes Lisa Jackson (aka Richard Windsor: she invented double emails way before Hillary) and the current attack dog, Gina McCarthy. Ms. McCarthy has gone so far as to propose that the industries being targeted should deem the efforts to annihilate them as, rather, a good opportunity to re-invent themselves in a cleaner business — an opportunity, rather than an auto-de-fé.
I refer to the NRDC-conceived-and-written “Clean Power Plan,” which invokes such beloved tropes as “carbon capture and storage” (CCS) and an “our way or the highway” invitation to either develop a state-by-state plan to reduce “carbon pollution” (formerly known as carbon dioxide) levels by a third (compared to 2005 levels) by 2030 — or else. Or else meaning that the EPA will eagerly do it for them. Problems: 1: the states are mostly not amenable to such a willy-nilly switch from what seemed to be perfectly fine energy/electricity generation to a system of “sustainable” energy that is at present not so reliable, and yet way more expensive; 2: Congress has been presented with CCS plans before and has expressed disdain for this approach in no uncertain terms (indeed, some enviro-activists have referred to this as a billion-dollar carbon-trading scam); 3: CCS has nowhere been shown to actually work efficiently. Never. Anywhere. 4. Legal folks of various political persuasions have opined that the…creative use of the Clean Air Act as a basis for this extensive schema does not pass muster.
These caveats are certain to give any court reasons to at least mull over the ramifications of this new paradigm. And indeed, twenty-six states and a passel of businesses and trade groups are suing to prevent the EPA from moving forward with the CPP. Of some interest: although the CPP was finalized in August, it was not formally published until October, to prevent (it is thought) the issue from coming before a court until after the December Paris climate conclave, IPCC-COP21. It would hardly do to have the world’s leading proponent of the massive global wealth transfer against global warming having his signature program thrown out by a federal judge while he himself was in Paris canoodling with all the climate experts in his thrall.
Similar comments might be made regarding another key feature of the Obama doctrine: the “Waters of the U.S.” or WOTUS (the EPA insists on calling it the Clean Water Rule), which would place rivers, streams and rivulets under the control of the EPA. This too has been challenged, and a federal appeals court has upheld a temporary injunction on its implementation. (In a revelatory sidelight, the agency was found in violation of federal rules by conducting a sub rosasocial media campaign to drum up pseudo-grassroots support for this horrendous regulation; the GAO called them out for the astroturf campaign and for the covert nature of its provenance).
The most costly of the Obama program may well be the new ozone regulations (actually the National Ambient Air Quality Standards, NAAQS), which would massively increase the costs of doing business — any business — across a wide swath of the country. To get this level (70 ppm ozone, down from 75 but instead of 60) without a major uproar, the EPA used a time-honored technique: they first proposed an obscene standard of 60 ppm, then compromised at 70—such a relief!). If allowed to stand, a large fraction of American counties would be found to be non-compliant, with the resulting expense and employment ramifications, again to no one’s benefit.
And now that we have espied the earliest benefits of the fracking-derived shale gas revolution, with gas prices plummeting under two-dollars a gallon and an aura of pleasant nonchalance about the international religious strife in the petro-despotisms of the middle east (as opposed to the intense anxiety we felt in the 70s), the imperial agencies of the EPA and the Dept. of the Interior have taken aim at the fracking industry. They have proposed onerous rules ostensibly to regulate leakages of methane, giving little thought to the facts that fracking-related methane leaks have been cut down substantially over the past few years, and that oil-and-gas derived methane is a fraction of the total methane output. (Seriously, what do you think gas prices would be now, what with Saudi Arabia and Iran about to come to blows and the Chinese stock market in turmoil, if not for fracking?). And now the EPA Science Advisory Board has announced that it is going to re-evaluate their prior report exonerating fracking from groundwater contamination. This couldn’t be part of the broader crusade against fossil fuels, could it?
How about that Keystone XL pipeline, huh? Well, the leftists who only want fossil fuels “kept in the ground” were ecstatic when President O finally put his foot down and said “No.” He actually announced that clearing it would present the wrong message when he was on his way to Paris for the climate summit — nothing to do with real economics or health. So now, Trans-Canada, which lost billions upon that decision, is now suing the president for exceeding his authority, and Canada is suing the U.S. under NAFTA, for violating the terms of the agreement which frown upon politically-motivated policies such as that enunciated by the president about his Keystone veto.
The Omnibus bill did allow us to resume exporting oil and natural gas, which is a good thing. The ban on exports dates from the Arab-Iranian oil boycott of the 1970s, but we’ve enjoyed a glut of these products for quite a while now, and oil is at historic low prices. In exchange, the Republican leadership gave away the farm by being willfully blind to the extension of tax subsidies for sustainables such as solar and wind. Also moving forward, the billions of dollars contributed to a variety of green climate groups will also continue.
But what about nuclear energy? Clearly, nuclear is the safest, cleanest source for climate fanatics as well as climate denialists, or even skeptics. Nevertheless, many in the left-wing climate camp disdain nuclear, based upon…what? I have no idea, same reason they fear vaccines and GMOs, perhaps. Meaning pure anti-science ideology trumping anyone’s best interest. And by the way, there was zilch in the Omnibus bill in support of Obama’s verbal pro-nuclear and “all of the above” chatter. In summary, the global warming zealots want us to disassemble our energy production, meaning fossil fuels largely, and transfer billions to the undeveloped world so they too can use solar and wind power instead of the efficient sources that raised our own economy since the industrial revolution — while they diss the two cleanest sources of effective, reliable energy delivery, nuclear and natural gas. Bummer, man.
Obama came on as the leader of “the most transparent administration in history,” but has proven to be quite the opposite. He has ruled from on high through a bevy of unelected, unaccountable bureaucrats, who have doled out billions of dollars to pet environmental groups and programs. When the EPA’s “secret science” data were requested by Congress, they have been stonewalled. The sad fact is that there is no middle ground on the science of global warming — one is either an advocate for doing everything possible to stem the tide of disastrous man-made global warming, or one is branded a denier. To even venture to propose a debate or discussion turns you into an enemy, a shill for Big Fossil Fuel. Yet, even a proponent of this policy, Secty. Of State Kerry, avers that even if we do everything we can, the fact that India and China will continue to use coal into the foreseeable future means we alone cannot keep to our states goals. Temperatures may well rise, but the data say that rise will likely be in the one-degree centigrade level, worst case scenario. And the gloom and doomsayers on weather cataclysms cannot point to any such unusual activity anywhere on earth.
The entire climate agenda of the Obama-Kerry-McCarthy cabal is merely an excuse for their agenda: massive wealth redistribution from the wealthier countries to the poorer countries, under the auspices of various international governing authorities. They well know it would take decades for even the most efficient and honest rulers of third world countries to effectuate a transformation of their economies to carbon-free sustainables; therefore they know as well that their mantra of urgent, now-or-never action being required is nonsense. But they cannot afford to allow the cataclysmic prophecies of such as Al Gore’s “Inconvenient Truth” to be downplayed, so the alarmism and fear-mongering must proceed. And while they’re at it, why not make a hefty profit from all those new, sustainable business opportunities for themselves and their cronies (Al Gore, e.g., is now a multi-millionaire).
Answer to the pre-test question: Watermelon Environmentalists are green on the outside but red inside. (h/t: Hank Campbell).
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California Considers Bill for Chemical Disclosure in Cleaning Products
Jan 12, 2016 | Chemical Watch
By Kelly Franklin
A California bill that would require manufacturers to fully disclose chemical ingredients in cleaning products has raised industry concerns over protection of trade secrets, while NGOs say the measure is needed to allow consumers to make informed purchasing decisions.
The bill (AB 708) would require manufacturers of cleaning products – including air care products, automotive cleaning products and floor polishes – to indicate on product labels the 20 most predominant ingredients. These would also need to disclose the presence of any substances listed as candidate chemicals, under the Department of Toxic Substances Control (DTSC) Safer Consumer Products programme.
If a product contains more than 20 ingredients, the manufacturers would have to indicate on the label that a full list is available on its website.
Jamie McConnell, director of programmes and policy at the NGO Women's Voices for the Earth, says that the bill “is the result of consumer demand”.
“AB 708 will standardise ingredient disclosure across the industry, making it easy for consumers to find the information they need to make informed decisions about the products they want to purchase,” she says.
The bill has the backing of several NGOs, which will be hosting a 20 January rally in Sacramento in support of it.
Yet a variety of industry groups staunchly oppose the measure.
Douglas Troutman, general counsel and vice president of government affairs at the American Cleaning Institute (ACI), says that the trade group's advocacy has been “public and thorough” in opposition to the bill.
According to Mr Troutman, much of the cleaning products industry is already voluntarily disclosing chemical ingredients due to consumer demands.
“Industry is responding without the need for oversight,” he says. “The need for this legislation is zero.”
“Significant concerns remain about protecting manufacturer product innovations and formulas,” says Kristin Power, vice president of state affairs for the Consumer Specialty Products Association (CSPA). “Manufacturers should have flexibility in how they choose to communicate information to their consumers,” she adds.
The CSPA will be holding a fly-in in Sacramento on 13 January to give members a chance to voice their concerns to legislators.
The International Fragrance Association's director of government affairs, Megan Ekstrom, says that the level of disclosure that would be required under AB 708 would be “unprecedented” for fragrances.
The trade group is “very much against the provisions in the bill that would require the disclosure of a fragrance formulation”, she adds.
Fragrance disclosure is a “hot spot”, agrees Nancy Buermeyer, senior policy strategist with the Breast Cancer Fund – an NGO that backs the bill. But, the organisation considers the provisions to be “very important” to ensure consumers can make informed decisions.
Says Ms Buermeyer, “the time has come, and consumers are increasingly concerned about what they're exposed to in their homes. We are pushing hard to get this through.”
The California assembly has until 31 January to pass the measure in order for it to be taken up in the Senate. The bill is expected to come to the floor for a vote in the final days of the month.
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Vowing 'Never again,' Lawmakers Offer Bills on Methane Leak
Jan 12, 2016 | E&E - Greenwire
By Anne C. Mulkern
The operator of a Los Angeles drill site with a massive methane leak would be barred from injecting more natural gas and older wells would be blocked from production until state agencies deemed them safe, under legislation announced yesterday.
A group of state lawmakers said they would offer that moratorium and a slate of other bills in response to the Aliso Canyon disaster now in its third month. Another measure would mandate more frequent inspections of natural gas storage locations statewide and add requirements to use subsurface safety valves and new scanning technology.
A third bill would make utility Southern California Gas Co., which operates Aliso Canyon, pay for damages out of shareholder profits. The company could not add those expenses to ratepayer bills.
"One of our goals is just two simple words: never again," state Sen. Fran Pavley (D) said as she and a group of other lawmakers gathered not far from the site of the leak, near the Los Angeles neighborhood of Porter Ranch. "How can we make sure that this kind of tragedy doesn't happen again?"
The leak hurts the state's goal of reducing climate emissions, said Senate President Pro Tem Kevin de León (D). California wants to cut greenhouse gas releases 40 percent below the 1990 level by 2030. Aliso Canyon at its peak was spewing daily emissions equal to driving 7 million cars or running six coal-fired power plants, an information sheet on the bills said.
"There is no question that this is a significant setback with regards to the harmful emissions to our air as well as to our atmosphere, not just here locally but to the state of California," de León said. It's not just bad for local residents, he said, "it also threatens to undermine our efforts at a statewide level."
De León was part of a California group that traveled to the United Nations' climate conference in Paris to argue for tougher action on emissions. He added that "obviously this does not help as we move forward trying to meet these targets globally."
Trisha Muse, a spokeswoman for SoCalGas, said the bills announced yesterday represented "the start of a legislative process."
"SoCalGas appreciates the legislators' interest in the topic and looks forward to participating in the public discussion," she said in an email. "As we have said since this incident began, SoCalGas stands willing and ready to cooperate with the Governor's office, all state and local officials, and regulatory agencies."
The leak, announced by the company in late October 2015, has forced the evacuation of thousands of residents and the relocation of school classes. Gov. Jerry Brown (D) last week declared a state of emergency and ordered action by multiple agencies (ClimateWire, Jan. 7). Some of the new legislation builds on what Brown ordered, including more oversight of storage wells.Moratorium would start immediately
The bills lawmakers announced included:S.B. 875, from Pavley, de León and state Sen. Bob Huff (R). It would impose the moratorium on any new injections of natural gas or use of what they called "vintage wells" for production at Aliso Canyon. At the site, 48 of the 111 gas storage wells were originally drilled in 1953 or earlier, the bill fact sheet said. The prohibitions would not be lifted until the Department of Conservation; Division of Oil, Gas & Geothermal Resources; the California Public Utilities Commission (CPUC); the state Energy Commission; and outside experts deemed that the site, and the old 1950s wells, did not pose a risk to public health or safety. The oversight groups would also need to consider how to minimize or eliminate use of the facility while still maintaining energy reliability in the region. It will be "urgency" legislation, a type of bill that would take effect immediately if it passed and Brown signed it. Urgency bills require a two-thirds vote of each chamber for passage.S.B. 877 would add the requirements on well safety. It would mandate that all natural gas storage facilities undergo inspection within a year and at least once annually thereafter. It would require companies to have "aggressive new leak prevention and response plans." It would mandate that those be similar to ones already in place for disasters like oil spills "so that any leaks are detected quickly, reported immediately, and shut down as quickly as possible." Tim O'Connor, director of the Environmental Defense Fund's oil and gas program in California, called for thorough state assessments. "It is critical that the Legislature fully reviews the state's rules governing well construction and maintenance, and that a commitment be made to continuously revise and improve standards overseeing California's aging natural gas infrastructure," O'Connor said in a statement. "Aliso Canyon is a wakeup call not only for California but for other states to conduct similar reviews in order to prevent future leaks like this from happening."S.B. 876 would have the utility pay for damages, including the relocation expenses of residents and all emergency costs. The measure would prohibit the CPUC from allocating any expenses tied to the Aliso Canyon leak to gas ratepayers. Company investors also would have to pay for greenhouse gas mitigation costs. Brown in his executive order said there would need to be climate offsets equal to the damage. The bill would require the gas company to create a fund that would bankroll direct measures. Purchases of tradable environmental credits would not be allowed.
SoCalGas is a subsidiary of Sempra Energy. In a filing last week with the U.S. Securities and Exchange Commission, the company said it's already spent $50 million on leak costs. It said that it has insurance policies with coverage exceeding $1 billion.
As of Jan. 3, about 2,500 households had been temporarily relocated with roughly 1,460 requests pending, the company said. It also faces more than two dozen lawsuits.Cutting methane emissions
Other legislation from Sen. Ricardo Lara (D) would set targets for cutting short-lived climate pollutants. S.B. 878 wants a 50 percent cut in black carbon emissions, a 40 percent reduction in methane and a 40 percent drop in fluorinated gases by 2030. Utilities would be accountable for meeting those goals.
The lawmakers yesterday also warned that Aliso Canyon could be just the beginning of methane disasters. There are 13 other underground natural gas storage facilities in the state, the fact sheet on the bills said. Most of the capacity is in or near urban areas, including West Los Angeles and the San Francisco Bay Area.
More than half of the approximately 420 gas storage wells statewide are more than 40 years old, the fact sheet said.
Aging infrastructure throughout the state is a problem, de León said. He noted what he called the "spectacular" water main break last summer involving the Los Angeles Department of Water and Power (LADWP). It dumped 20 million gallons of water near the University of California, Los Angeles, according to the Associated Press, and came during the state's four-year drought.
"That is equivalent to what is happening here in Porter Ranch," de León said. "It could happen elsewhere. The only difference with LADWP is that it is water that floods." Methane, he said, "poses risks to residents throughout the area and potentially throughout the state."
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AAR Outlines PTC Progress, Sets Goals for 2016
Jan 12, 2016 | Progressive Railroading
Positive train control (PTC) implementation is expected to cost the freight railroad industry $9 billion to $10 billion, according to a PTC progress update released yesterday by the Association of American Railroads (AAR).
As of Dec. 31, 2015, the freight railroads spent more than $6 billion on PTC, as they continue to work on installation and implementation. PTC is a priority for the industry, but it is critical to make sure that the technology is installed and implemented correctly, AAR officials said in a prepared statement.
Making sure PTC is done right means field-testing is "essential" for safely deploying the technology, which will be a critical focus for the industry in 2016, they said. Currently, rail operators are discovering failure rates of up to 40 percent as they install and test the PTC equipment in labs and designated pilot territories.
By the end of 2016, the AAR anticipates the industry will make the following progress:
• 38 percent of the targeted 60,153 route miles will have PTC technology;
• 63 percent of 22,066 locomotives will be equipped with PTC technology;
• 51 percent of the 114,515 employees requiring training will be PTC-qualified;
• 87 percent of the more than 32,654 track-side signal systems will be PTC ready; and
• 77 percent of the 3,968 base station radios will be installed.
The end of 2015 was the original deadline that Congress set for railroads to implement the rail safety technology. Because a majority of railroads would not be able to meet the deadline, Congress late last year extended it to the end of 2018 and, if necessary, up to an additional two years to finalize and test the new technology.
In order to qualify for the extra two years, railroads must meet specific progress benchmarks, AAR officials said. Those benchmarks include:
• PTC hardware is 100 percent installed on a railroad's system by Dec. 31, 2018;
• PTC technology is implemented on more than 50 percent of its system;
• Employee training required by the Federal Railroad Administration is completed; and
• All spectrum necessary for PTC implementation is obtained.
PTC technology will be overlay systems, which means they will supplement existing train safety checks and balances, according to AAR. -
FERC to Launch 'Significant Outreach' on Clean Power Plan
Jan 12, 2016 | E&E - Energywire
By Rod Kuckro and Emily Holden
The Federal Energy Regulatory Commission will soon begin an informal effort to engage stakeholders nationwide about a range of concerns with U.S. EPA's Clean Power Plan, said FERC Commissioner Colette Honorable in an interview.
The effort, coming more than five months after the final rule was published, will be led by FERC staff, Honorable said.
"We need to be proactive, and we need to be acting now and not just talking about it," she said, describing "what I would characterize as a significant outreach effort with stakeholders."
"We are planning in the next weeks or so to reach out to state regulators, air regulators, consumer groups, [regional transmission organizations (RTOs)] and [independent system operators (ISOs)], industry, public power groups, generators and others," she said.
Until now, the extent of FERC's work since EPA issued its final rule to curb carbon emissions from the power sector has been periodic interagency meetings with staff from EPA and the Department of Energy, chiefly focused on issues surrounding grid reliability.
"It's important for us to stay connected," Honorable said of FERC's sister agencies. "Inasmuch as we accept and know that we are not the environmental regulator, the EPA knows they are not the reliability regulator.
"It's more than just information-sharing. I believe that these are ways for us to assess issues that have been raised and find interagency ways to address them and to provide advice and counsel to the EPA," she said.
But the nationwide outreach to the broad spectrum of parties with skin in the game reflects FERC's belief that it has to interact with "state regulators and air regulators in the first instance who have to develop the plans and implement them," as well as others who will "work collaboratively to execute the plans clearly with the focus on reliability, cost and how it will impact consumers," said Honorable, one of three Democratic commissioners.
Initially, the outreach effort would be less formal than the series of regional meetings FERC held in 2015 on the proposed EPA rule, Honorable said.
Instead, the agency is likely to use venues such as the upcoming winter meeting of the National Association of Regulatory Utility Commissioners in Washington, D.C., to learn about "any barriers that occur with regard to our processes here at FERC" relating to complying with the EPA rule.
Republican FERC Commissioner Tony Clark told House lawmakers last month that it may be difficult for states to construct new gas pipelines and power lines in time to comply with the Clean Power Plan, which begins in 2022.
Honorable noted that 92 percent of pipeline applications are completed by FERC within 12 months, though she acknowledged that the transmission process is "much more challenging."
She said she hopes the commission's Order 1000 will help to smooth out regional transmission planning, and she defended state and municipal autonomy over approving or disapproving local lines.
"I support creative ways that we can think about how we expedite and move those lines forward," Honorable said. "I'm not so sure that removing that jurisdiction from the states is the best way to do that."Keeping states in the loop
Before joining FERC in January 2015, Honorable was chairwoman of the Arkansas Public Service Commission, as well as president of NARUC. In her brief tenure at the agency, she has been an advocate for heeding the views of state regulators as they grapple with federal regulation.
"I would not want to attempt to suggest to my state colleagues how they should go about their business, but, having been a state regulator, I wasn't afraid to look for help where I could find it," she said.
So she suggests looking to efforts by "entities that don't have a dog in the hunt, so to speak," as they conduct analyses of and meetings on the nuts and bolts of the Clean Power Plan to inform state regulators.
"When I was chairman of the Arkansas commission, we didn't have a large staff, and we just didn't have the bench to spend a lot of time on modeling and such, so our ability to harness that expertise elsewhere was very helpful," Honorable said.
As examples, she cited work by the North American Electric Reliability Corp., the RTOs and ISOs, and think tanks such as the Great Plains Institute, Duke University's Nicholas Institute for Environmental Policy Solutions and the Bipartisan Policy Center in studying "what this new energy future would look like with implementation" of the Clean Power Plan.
"There is value in all of this work if we understand this important caveat: Until we know for certain which plants are online, which plants are offline [when the compliance period nears its end], we really can't know for sure the cost impacts and the reliability impacts," she said.
The studies she has been highlighting are ones by the Midcontinent Independent System Operator and the Southwest Power Pool, "which clearly and strongly support the notion that regional planning will save consumers significantly -- as much as 40 percent in regional planning versus state-by-state planning" in terms of compliance with the EPA rule's carbon emissions reduction goals.
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Jan 12, 2016 | E&E TV
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Larry Kellerman, managing partner at Twenty First Century Utilities. Larry is the former president of Goldman Sachs' electric power business. Larry, it's great to have you here.
Larry Kellerman: Thank you very much, Monica. Pleasure to be here.
Monica Trauzzi: Larry, you recently founded TFC Utilities with a mission of transforming regulated utilities to drive the adoption of clean energy and efficiency. With many utilities already making significant alterations to their business models and the Clean Power Plan certainly driving transformation in the sector, where do you see your biggest window for contributing?
Larry Kellerman: Our biggest window, Monica, is going to be in the area of customer-facing initiatives, energy production, energy conservation, and energy management tools, products and services that exists on the side of the electric infrastructure where utilities have historically been hesitant to operate, which is the customer's side of the meter. We believe that by leveraging, democratizing and making available one of utility's greatest assets, which is its low-regulated transparent cost of capital to help customers acquire and implement products and services on their side of the meter, we not only can help implement a lot of the initiatives that are behind the Clean Power Plan and the Paris initiatives but also help to evolve the grid in a manner that is shaped not by our will but by the will of our customers.
Monica Trauzzi: Many utilities have been resistant to this sort of consumer side of things. How do you overcome those hurdles with those utilities?
Larry Kellerman: We overcome those hurdles by owning utilities. So we are focused on the owning, operation and optimization of the regulated utilities that we ourselves own and manage. So our objective is to be the best utility that we can be, and in so doing what we are not going to do is patent or protect or hide what we are accomplishing. What we want to be is, if you will, a city on the hill, an example that other utilities can elect to copy and emulate in the future. So we wish to be a good example for the remainder of the industry.
Monica Trauzzi: So you mentioned Paris, the Clean Power Plan. We've all had a little time to digest the Paris agreement by now. What role do you see for utilities in meeting the goals that have been set forth in Paris?
Larry Kellerman: Clearly in this country as well as in a number of other countries, the electric power generation sector is a major contributor to greenhouse gas emissions. The utilities sector needs to be a leader in minimizing the amount of greenhouse gas emissions that they contribute into that problem set going forward. And I believe the majority of the utilities in this country either are actively embracing or are at least planning on adopting plans and initiatives that will help them to be part of the solution.
Monica Trauzzi: Right. And so a big part of the U.S.'s pledge in Paris is the Clean Power Plan. Does the power plan sufficiently foster a pathway to a 21st-century grid?
Larry Kellerman: In and of itself it is a step. Is it everything? No. It requires state-by-state implementation, which a lot of people, including myself, believe is not necessarily the way that the utility industry has organized itself historically, which has been more around regional planning than state-by-state implementation. A power plant may be in one state but it may be owned or controlled by a utility in another state as a result of regional operations of the grid on a historic basis. But is it a start? Yes. Is it a good start? Yes. It establishes targets that I believe are very achievable overall in the aggregate across the country.
Monica Trauzzi: So you think this regional approach that many states are taking a look at now is kind of the successful approach for the Clean Power Plan?
Larry Kellerman: I believe it is the logical evolution. It is how the grid and the generation assets in the grid have grown up as a result in many parts of the country in terms of interregional cooperation and joint ownership of assets by utilities historically, and therefore it is a logical evolution of where the Clean Power Plan will likely be driving in the future in order to optimize its implementation.
Monica Trauzzi: So what's going to be the critical driver for transforming the utility model towards that future model? Is it Paris? Is it the Clean Power Plan, or is it sort of the market dynamics that we're seeing at play already that are driving utilities to make cleaner investments?
Larry Kellerman: It's the market dynamics, and underlying the market dynamics it is the transformational set of new products, services and tools, the technological changes that are occurring. Many, if not most of those changes are occurring at the customer side of the meter, the customer-facing activities and the assets, including everything from rooftop solar to Tesla battery walls to Nest thermostats to there's an entire ecosystem of increasingly lower costs, increasingly accessible to consumers at both the residential, commercial and industrial level assets, products and services that help consumers better manage their energy and in many cases produce their own energy locally, cost effectively, and in a clean and green manner.
Monica Trauzzi: But many of these new technologies leave the grid vulnerable. How do you keep the grid safe?
Larry Kellerman: You keep the grid safe by evolving it over time from the current approach, which has been developed over many, many decades which is effectively a hub-and-spoke system where you have large-scale remote power plants that were built in that fashion because of the dynamics of economies of scale. New technologies are busting apart the old paradigm that you need those types of massive economies of scale, a thousand, 2,000 megawatts in a single location in order to drive the cost down. At this point in the evolution of technology one can have much lower scale in terms of generation assets in order to be cost-effective. What that means is that the grid evolves over time from the current hub-and-spoke-oriented system into a set of tightly interconnected and intersecting micro-grids. That is an evolutionary process that will take place over a number of decades, but that is the direction that is logical and makes sense given the state and the trajectory of technology.
Monica Trauzzi: All right. We are going to end it right there. Thank you so much for your time, I appreciate it.
Larry Kellerman: Thank you.
Monica Trauzzi: Nice to have you on the show.
Larry Kellerman: I appreciate it very much.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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EPA IG Launches Review Of Air Monitoring Network
Jan 12, 2016 | InsideEPA
EPA's Inspector General (IG) is launching a review of the agency's air monitoring network in order to assess whether it meets EPA's criteria for monitoring, following an IG report that faulted EPA Region 6's monitoring.
In a Jan. 8 memorandum to EPA's acting air policy chief Janet McCabe, James Hatfield, acting director for air issues within the IG's Office of Program Evaluation, says that the review is part of the IG's fiscal year 2016 Annual Plan, which outlines the audits, investigations and evaluations the IG aims to pursue in FY16.
The objective of the review “is to determine whether selected air monitoring data in EPA's Air Quality System (AQS) meet criteria established by the EPA. Specifically, we want to know: 1. Do data revisions comply with EPA criteria? 2. Do data exclusions or gaps comply with EPA criteria?,” the memo says.
“During the preliminary research phase, we plan to review EPA regulations, policies, procedures and guidance related to the collection of ambient monitoring data; analyze ozone ambient monitoring data to identify instances of data revisions and gaps; and review a sample of data points where data was revised or is missing,” Hatfield writes.
The memo does not give a reason for the office's focus on monitoring, but it does ask EPA to furnish its staff with ozone data reporting requirements and guidance in particular, without mentioning other pollutants.
EPA in an Oct. 1 final rule set a tougher ozone national ambient air quality standard (NAAQS) of 70 parts per billion (ppb), down from the previous level of 75 ppb adopted in 2008. The national monitoring network will be key to implementation of the standard, especially in areas that may be facing ozone NAAQS attainment issues for the first time.
The IG's decision to broadly review the agency's air monitoring network follows the Dec. 17 issuance of an IG report titled “EPA can strengthen its reviews of small particle monitoring in Region 6 to better ensure effectiveness of air monitoring network,” which found failings in EPA's oversight of states' siting of monitors measuring particulate matter levels. Region 6 covers Arkansas, Louisiana, New Mexico, Oklahoma and Texas.
“We recommend that Region 6 address state-specific deficiencies in monitoring plans and assessments and strengthen its network assessment review process,” the IG said in that report, which made six recommendations, all of which EPA accepted and proposed corrective action for.
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Utility Groups Urge Appellate Review Of CWA Groundwater Liability Claims
Jan 12, 2016 | InsideEPA
By David LaRoss
Electric utilities are urging two federal district judges to allow a speedy appellate ruling on whether the Clean Water Act (CWA) regulates contaminants from coal ash disposal sites that reach protected surface waters through a groundwater connection, arguing that courts are divided on the issue and an early appeal would help resolve pending suits on the subject.
Power sector groups in recent briefs ask the district courts weighing two separate CWA coal ash cases to find that an immediate appeal is necessary to provide certainty on facilities’ responsibilities under the water law, and argue that environmentalists are trying to set too high a bar for courts to grant such review.
“Plaintiffs suggest that Fourth Circuit case law requires an issue to be 'completely dispositive of the litigation' in order to be a 'controlling question of law' . . . That is not the law,” Duke Energy says in a Jan. 7 brief to the U.S. District Court for the Middle District of North Carolina in Yadkin Riverkeeper, et al., v. Duke.
Instead, Duke argues, the courts should allow parties to appeal a district judge's order to a circuit court even when other issues remain to be litigated whenever an appellate decision would “materially shorten and simplify the litigation” -- as they say it would in the coal ash suit.
Meanwhile, the Utility Water Act Group (UWAG), which represents utilities on a host of CWA issues, is seeking to add amicus briefs in both the North Carolina suit and a related case in the U.S. District Court for the Eastern District of Virginia, though environmentalists are opposing both efforts.
Duke and its allies are hoping to win 4th Circuit review of an Oct. 22 order from Judge Loretta C. Biggs inYadkin, as well as a similar order issued Nov. 6 by Judge Raymond A. Jackson in the Virginia suit, Sierra Club, et al. v. Dominion Virginia Power. Since the suits are ongoing, the appellate court can only step in now if one or both judges gives permission for an interlocutory appeal.
Both judges rejected industry defendants' motions for dismissal -- which were based on the argument that since groundwater is not covered by the CWA, groundwater releases are never subject to the water law even if they later reach jurisdictional waters.
However, other federal judges in past cases have come to the opposite conclusion -- including another North Carolina district court judge in a related case against Duke, Cape Fear River Watch, et al., v. Duke. There, Judge Louise Wood Flanagan of the Eastern District of North Carolina dismissed many of the plaintiffs' groundwater claims on the logic that groundwater releases are never restricted by the CWA.
The defendants argue that conflicts on the groundwater issue both within the 4th Circuit and between judges in other jurisdictions warrant the appellate court taking up the case. Duke in its Jan. 7 brief notes that along with the recently-decided cases, local regulators are preparing to appeal a 2014 ruling, Hawaii Wildlife Fund v. County of Maui, to the 9th Circuit following lengthy proceedings on liability.
The district court's ruling in that case said that while it granted the environmental plaintiffs' motion for partial summary judgment because a dye tracer test showed effluent migrating from the county's facility to the ocean, establishing CWA jurisdiction in similar cases absent such tests is a murkier issue.
Amicus Briefs
UWAG has submitted proposed amicus briefs in both pending cases, urging the judges to allow an interlocutory appeal because of the practical complications that will ensue for utilities operating under court decisions that allow CWA liability for groundwater releases.
"[P]hysical and technical issues will greatly complicate, if not totally stymie, the permitting process, making it even more protracted, burdensome, and expensive" if utilities are held liable for groundwater-borne contamination under the CWA, UWAG says in its Dec. 31 Virginia brief.
Along with the problem of legal uncertainty, the group argues that rulings cementing CWA liability for groundwater releases will force many now-unpermitted facilities to seek CWA National Pollutant Discharge Elimination System (NPDES) permits, because it is nearly impossible to be certain that groundwater releases will never reach surface waters.
A regime where facilities are liable for contaminants that move through groundwater to protected surface waters "would create an NPDES-permitting dragnet that would capture any structure, facility, or area, whether by design or default, that collects or captures and holds liquid that, by design or otherwise, makes its way to groundwater that ultimately is hydrologically connected to" jurisdictional water, the brief says.
In its shorter brief to the North Carolina court, UWAG focuses on arguments that CWA regulation of groundwater releases would conflict with state-specific regulatory regimes.
“[C]urrent programs that govern activities affecting soil and groundwater may be rendered duplicative at best and inconsistent at worst with [CWA] rules,” it says in its Dec. 15 brief in Yadkin Riverkeeper.
However, advocates in both suits are hoping to block the courts from considering UWAG's arguments. Plaintiffs in Sierra Club say in a Jan. 11 brief that the utility group has added no new claims worth considering, while inYadkin the environmentalists say it is acting as a surrogate for Duke to exceed the court's normal limits on briefing.
The Yadkin plaintiffs say in their Jan. 8 response brief that Duke is the largest member of UWAG, and that the association's brief is “substantially similar” to its amicus filing in Sierra Club -- which was crafted by the same law firm representing Duke before the North Carolina court.
“[T]his supposed amicus brief is in reality just additional argument on behalf of Duke Energy. . . . Through this game of legal musical chairs, Duke Energy seeks to expand its briefing in this Court,” the environmentalists argue.
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States Challenge Sierra Club's Intervention in N.D. Case
Jan 12, 2016 | E&E - Greenwire
By Tiffany Stecker
States opposing the Obama administration's contentious rule to define "waters of the U.S." are seeking to limit an environmental group's intervention.
In a motion filed last week, 13 states plus two New Mexico agencies argued that the Sierra Club did not have standing to argue in favor of upholding U.S. EPA and the Army Corps of Engineers' Clean Water Rule. The states also wrote in their motion that the green group's late arrival to the case would cause unnecessary delays.
In the filing, the states ask the U.S. District Court for the District of North Dakota Southeastern Division to either bar the Sierra Club's participation or limit the group to amicus curiae, or "friend-of-the-court," status.
Sierra Club filed its motion to intervene last month, arguing that its members in Minnesota, adjacent to North Dakota, would be harmed if a narrow interpretation of which streams, marshes and wetlands are covered under the Clean Water Act's jurisdiction were implemented.
Janette Brimmer, an attorney for Earthjustice who is representing the Sierra Club in this case, said the states' reasons for blocking the group are unwarranted.
"They're arguing that we're somehow late to the party, which is frankly ridiculous," Brimmer said.
Opponents of the rule, which seeks to redefine which waters receive federal protection after two landmark Supreme Court cases, filed challenges in numerous district courts after the regulation was finalized in May. The challenge in the North Dakota District court was filed last June.
While most district judges are waiting on two federal appeals courts to decide whether lower district courts have jurisdiction to hear the case, the North Dakota district court will hear the case regardless of the appeals court's ruling (Greenwire, Aug. 28, 2015).
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Calif. Holding 'Very Preliminary' Carbon Market Talks with N.Y.
Jan 12, 2016 | E&E - Climatewire
By Elizabeth Harball
California Air Resources Board Chairwoman Mary Nichols yesterday said her state is in "very preliminary" talks with New York to explore the possibility of linking carbon markets.
The idea of linking California's cap-and-trade system with New York's was first proposed by New York Gov. Andrew Cuomo (D) late last year. He envisioned a "broader North American market to collectively reduce harmful emissions" (ClimateWire, Oct. 9, 2015).
"We've had very preliminary conversations through the governor's office with the [Regional Greenhouse Gas Initiative] states about these issues," Nichols said yesterday at an event hosted by the Center for Global Development in Washington, D.C.
Nichols' comments yesterday were the first time a California official has acknowledged the possibility of allowing carbon allowances to be traded between parties in her state and in New York.
However, Nichols stressed that no decisions have been made. Linking the systems would be a convoluted process, she said, partially because her state's program covers all sources of carbon emissions, while the Northeast cap-and-trade program that New York participates in only covers carbon emissions from power plants.
"I don't think that there's any inclination on their part to go to an economywide cap-and-trade program at this point, and we're not inclined to do just a power plant program, so we will have to explore whether there are other ways that we could link," Nichols said.
"It would not be the kind of full linkage that most people have thought about unless we make some changes in our programs," she added.
Nichols said the process of linking California's program with the Canadian province of Quebec demonstrated the complexity of what is required to expand her state's program into other jurisdictions.
"Under California law, the governor and the attorney general both have to certify that any entity that we link with as a system is fully compliant with California's," Nichols said. "Their rules have to be as stringent, their enforcement program has to be as good. We have to be able to send inspectors into their jurisdiction and they have to be able to send them to ours. There are a lot of details to be worked out."
However, Nichols added that the Obama administration's Clean Power Plan, which aims to reduce America's power plant emissions by 32 percent from 2005 levels by 2030, "is providing a real strong push for all states to look separately at their electricity systems, including ours."
"We are looking at whether there are ways that our power producers would benefit -- or might benefit -- from some more direct form of linkage, but this is very exploratory at this point," Nichols said.
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Greens Ask the EPA to Take Over Pollution Enforcement in Texas
Jan 12, 2016 | The Hill - E2 Wire
By Timothy Cama
Two environmental groups are asking the Environmental Protection Agency (EPA) to take over the enforcement of federal air and water laws in Texas, arguing the state is no longer living up to its responsibilities.
The Environmental Defense Fund and the Caddo Lake Institute said recent legislation in Texas pushes the state below the minimum requirements for granting permits to facilities that could pollute the air or water.
Additionally, the state has cut funding for its Council on Environmental Quality to a point that it cannot effectively protect the environment, they argue.
“The Texas laws create fundamentally unfair legal processes that deprive all Texans of basic rights and will result in more pollution in our state,” Jim Marston, EDF’s regional director for Texas, said in a statement Tuesday, the day after submitting the petition to the EPA.
“The legislature also has repeatedly underfunded the state environmental agency to the point that the TCEQ cannot adequately do its job,” Marston said.
The greens argue that a concerted effort by Texas’ Republican-led legislature and Gov. Greg Abbott (R) to weaken and defund environmental enforcement have left the state unable to live up to the requirements. The EPA would take over enforcement if the state of Texas was deemed unable.
“Sadly, because our current office holders will not protect Texans from dangerous pollution, we have no choice but to ask EPA to exercise its fundamental duty under the Clean Air and Clean Water Acts and to retake responsibility to administer these vital national health programs,” Marston said.
The air and water laws allow states to administer certain programs, as long as the EPA determines that the states have sufficient rules and funding in place to do so, as Texas has been allowed to do.
The EDF petition points specifically to a state law that reduces the rights of outside groups to object to pollution permits while the state is considering them.
The changes mean “restrict and limit the public’s ability to obtain judicial review of TCEQ’s permitting decisions ... reduce opportunities for public participation by increasing the burden on permit opponents in a contested case hearing ... [and] provide inadequate resources for implementation and enforcement” of clean air and clean water laws, the petition states.
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Industries, Environmentalists Clash Over Merits Of Joint NOx-SOx NAAQS
Jan 12, 2016 | InsideEPA
By Stuart Parker
Groups representing the oil, power and other sectors are clashing with environmentalists over the potential merits of EPA establishing a first-time joint national ambient air quality standard (NAAQS) for nitrogen oxides (NOx) and sulfur oxides (SOx), with industry rejecting advocates' claims that the planned limit is legal and beneficial.
The Association of Automobile Manufacturers in comments recently submitted to EPA says the plan for a potential joint standard presents “large uncertainties” and complex implementation problems.
However, a coalition of environmental groups in comments to the agency argue that creating the combined standard is vital to better protect waterbodies from air pollution deposition. “Scientific evidence strongly supports moving forward with strengthened secondary standards for both oxides of nitrogen and oxides of sulfur and indeed sensitive ecosystems across the United States would greatly benefit from updated standards,” they say.
EPA has for several years been exploring the idea of creating a first-time combined “secondary” NAAQS for NOx and SOx based not on concentrations in ambient air, but on deposition of the pollutants in waterbodies as part of a “critical load” approach to protecting ecosystems. Secondary NAAQS are required under the Clean Air Act to protect the environment, separate from the “primary” NAAQS which are designed to protect public health.
But the agency has not yet set a joint NOx-SOx standard due to ongoing scientific uncertainties. For example, in 2012 EPA said that while the separate existing secondary standards for NOx and SOx are not adequate to protect against acidification due to deposition of the pollutants, there is too much uncertainty to combine the limits.
EPA nevertheless continues to weigh the potential for a joint secondary standard, and recently floated a draft integrated review plan (IRP) outlining how it plans to conduct the review of the possible NAAQS.
The IRP is a planning document that frames the scope of a NAAQS review, and hence has significant influence on the outcome of the review. Other documents prepared later in the review include integrated science assessments (ISAs) that synthesize the latest scientific evidence, optional risk and exposure assessments (REAs), and policy assessments (PAs) that provide the EPA administrator with policy options when setting a new standard.
According to the plan published in the Nov. 9 Federal Register, the agency by April 2020 will issue a final decision on whether to launch the joint secondary standard.
Review Plan
EPA took public input on the draft IRP through Dec. 30, and the Alliance of Automobile Manufacturers in its Dec. 29 comments says that NOx and SOx cuts through existing programs might make a combined standard moot.
“The first question that EPA needs to address in this review is whether current and committed emission control programs will reduce acidification, eutrophication and the other effects sufficiently so that an additional secondary standard(s) would be superfluous by the time it (they) could be promulgated and then implemented,” the group says.
In separate Dec. 30 joint comments, the American Petroleum Institute (API) and the Utility Air Regulatory Group (UARG) also question the merits of a joint standard. “Because the IRP sets the stage for all of the significant analytical steps that take place during the review of the secondary NAAQS . . . it is essential that the IRP identify the appropriate issues for EPA to evaluate during the NAAQS review and that it correctly characterize those issues,” they say.
However, the groups “believe that the IRP does not adequately frame the issues that are most important in this review of the secondary NAAQS for NOx and SOx.” They add, “EPA’s history suggests that a new secondary standard focused on the acidifying effects of nitrogen ('N') and sulfur ('S') deposition would be consistent with past EPA and congressional actions. A more balanced review of the facts supports the opposite conclusion.”
The groups cite Congress' creation of programs such as the air law Title IV acid rain program to address atmospheric deposition as prohibiting the use of secondary NAAQS to address this issue.
“In sum, Congress has created a comprehensive regulatory program to address NOx and SOx deposition-related acidification. It has further directed EPA to assess and report back to the legislature on whether further legislative action would be appropriate to address any remaining acidification problems. In doing so, Congress has reserved the right to craft any regulatory response, thereby precluding EPA action under the NAAQS program,” they say.
API and UARG doubt the scientific basis for a novel joint NAAQS based on deposition, saying, “The IRP makes clear that EPA sees value in the critical loads and ecosystem services concepts, but neither concept is well-suited to a NAAQS review. Further, the critical loads and ecosystem services information that is available has significant limitations.” Critical load refers to the level of pollution above which ecosystem damage, such as from acidification, is judged to occur. Ecosystem services refers to the broad array of benefits provided by the ecosystem.
Environmentalists' Support
Environmentalists who have long supported a joint NOx-SOx NAAQS as beneficial to waterbodies counter in their Dec. 30 comments that the agency has the legal and scientific basis for establishing the standard.
The coalition of groups including the Adirondack Council, Appalachian Mountain Club, Environmental Defense Fund and National Parks Conservation Association supports EPA taking a critical loads approach.
“Under the current national standards, it would take more than 300 years for some watershed ecosystems in the Adirondack Park to recover their chemical balance and vitality. However, the establishment of a rigorous national ambient air quality standard to address these serious effects using the critical loads model would speed the recovery process significantly,” according to the coalition's comments.
The National Park Service also lends its support to the agency's consideration of a joint standard, saying inDec. 21 comments, “We agree with the EPA 's proposal to again consider NOx and SOx together in one secondary standard because both species are being deposited concurrently and processed through ecosystems. In addition, because reduced nitrogen species such as ammonia and ammonium are critical contributors to nitrogen effects to ecosystems, we concur with the EPA's proposal to consider total deposition of oxidized nitrogen and reduced nitrogen species together in evaluating ecosystem effects and critical loads for resource protection."
The environmental group Center for Biological Diversity (CBD), however, in its comments criticizes EPA for not undertaking formal consultation with the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service under Section 7 of the Endangered Species Act (ESA) in its prior reviews of the secondary NAAQS for NOx and SOx. CBD calls the existing separate standards “out of date” and “under-protective."
“Without consultation, the EPA cannot insure that any final secondary standard is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat. To fulfill its duty under the ESA, the EPA must incorporate Section 7’s consultation process into the Integrated Review Plan and future policy decisions related to the secondary standards” for NOx and SOx, CBD says.
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Enviros, Interior Broker Settlement Over Offshore Fracking
Jan 12, 2016 | E&E - Energywire
By Ellen M. Gilmer
Environmentalists challenging hydraulic fracturing in the Pacific Ocean have reached a tentative agreement with the Department of the Interior to end litigation over the practice.
Lawyers from Interior, the Center for Biological Diversity and the California-based Environmental Defense Center yesterday told the U.S. District Court for the Central District of California that they have wrapped up settlement discussions in two lawsuits brought separately by the environmental groups. The legal challenges are on hold until the settlements receive formal approval from Interior and the Department of Justice. The terms of the agreements are under wraps until then.
EDC sued Interior in late 2014, arguing that the agency's Bureau of Safety and Environmental Enforcement and Bureau of Ocean Energy Management were rubber-stamping applications for fracking and "acidizing" from platforms in the Santa Barbara Channel, rather than performing environmental reviews. CBD filed suit in February 2015, making similar allegations of inadequate environmental review for offshore platforms (EnergyWire, Dec. 5, 2014).
The groups allege violations of the National Environmental Policy Act, Coastal Zone Management Act and Outer Continental Shelf Lands Act, and ask the court to enjoin drilling on certain wells until Interior prepares an environmental impact statement.
The lawsuits raised red flags for oil and gas companies seeking to protect industry investments. The American Petroleum Institute intervened on Interior's side in both lawsuits, and Exxon Mobil Corp. intervened in the EDC lawsuit (EnergyWire, March 19, 2015).
Representatives from both environmental groups and Interior said they could not comment on the terms of the prospective settlements, but EDC attorney Brian Segee reiterated toEnergyWire his group's concerns about the current permitting method for offshore fracking.
"In general, offshore drilling in federal waters off California's coast is continuing under decades old plans and dated or nonexistent environmental analysis," he said in an email, adding that the technologies have "changed and advanced, and pose risks to the environment and public health that have never been studied, particularly offshore."
CBD attorney Kristen Monsell said her group was pleased with the progress in the settlement negotiations.
"We're pleased by the progress in this case, which we filed to protect California's coast from offshore fracking," she said in a statement. "We'll continue to work to keep this toxic technique out of our fragile coastal environment."
A spokesman for Interior said he had no information about the settlement terms.
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