Preview Newsletter
PM ACC 1/14/2016
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Put Aside Demagoguery and Approve the Trans-Pacific Partnership
Jan 14, 2016 | Washington Post
By Editorial Board
As President Obama reminded the nation during his State of the Union speech Tuesday, congressional approval of the Trans-Pacific Partnership (TPP) looms as a major piece of unfinished business for his final year in office. -
Gore-Tex Manufacturer's Assessment backs Fluorinated DWR Treatments
Jan 14, 2016 | Chemical Watch
Outdoor clothing brand, WL Gore & Associates, has released its finding that a non-fluorinated durable water repellent (DWR) treatment alternative does not offer a better environmental profile than the currently used fluorinated chemistry. -
Internet Exposing Grid-Control Systems to Attack -- DHS Official
Jan 14, 2016 | E&E - Energywire
By Blake Sobczak and Peter Behr
Poor security practices have made it easier for hackers to break into key networks propping up the electric grid, manufacturing plants and other infrastructure, according to a Department of Homeland Security official. -
DOT Urges Court to Ditch Enviro Lawsuit over Pipelines
Jan 14, 2016 | E&E - Energywire
By Ellen M. Gilmer
Obama administration officials are urging a federal court to throw out a lawsuit from environmentalists who say the Department of Transportation fails to adequately regulate oil pipelines. -
'Pipelines on Rails' Again Land in Watchdog's Spotlight
Jan 14, 2016 | E&E - Energywire
By Blake Sobczak
Oil tank car upgrades have made a federal transportation watchdog's list of "most wanted" safety improvements for the second year running. -
Technology Derailed: How For-Profit Industry Is Risking Railway Safety
Jan 14, 2016 | Boston Review
By Bryce Emley
Few of us think about cyber security until it fails. Even when it does in a spectacular way—as in the recent theft of nearly 80 million healthcare records from Anthem, contact information from 76 million... -
Senate Bill 'in the Queue' for Floor Time
Jan 14, 2016 | E&E - Greenwire
By Geof Koss
The bipartisan energy package that passed the Senate Energy and Natural Resources Committee last summer is in line to see floor time, but the exact timing isn't yet set, according to a Senate GOP aide. -
U.S. Chamber Promises to Fight 'Runaway EPA'
Jan 14, 2016 | E&E - Greenwire
By Geof Koss
The head of the U.S. Chamber of Commerce today said the business group plans a multipronged front for pushing back against President Obama's regulatory agenda in his final year, with a major focus on U.S. EPA. -
After SOTU, Preparing for the Next Fossil Fuel Fight
Jan 14, 2016 | E&E - Climatewire
By Brittany Patterson and Evan Lehmann
Environmentalists and industry groups alike are speculating on what the president has in store next for oil and coal after a seemingly nebulous statement he made during Tuesday night's State of the Union address. -
9th Circuit Could Revisit Debate Over CWA Groundwater Liability Claims
Jan 14, 2016 | InsideEPA
By Bridget DiCosmo
The U.S. Court of Appeals for the 9th Circuit could revisit the issue of how Clean Water Act (CWA) liability applies to contaminants that reach surface waters through groundwater connections... -
Calls Grow For States To Regulate New Sources In Mass-Based ESPS Plans
Jan 14, 2016 | InsideEPA
By Dawn Reeves
States considering mass-based plans to comply with EPA's existing power plant greenhouse gas rule are facing growing calls from industry, environmental and other sources to also regulate new plants... -
Judges Warn Challenge of 35-Year-Old Rule is 'Too Late'
Jan 14, 2016 | E&E - Greenwire
By Robin Bravender
Environmentalists aren't likely to succeed in their lawsuit challenging a 35-year-old U.S. EPA clean air rule, federal judges signaled today. -
EPA Ploughs Ahead With $9.6 Billion Mercury Rule, Despite Supreme Court's Concerns
Jan 14, 2016 | Forbes
By Susan E. Dudley
The Environmental Protection Agency is going through the motions of responding to a Supreme Court order requiring it to consider whether a $9.6 billion annual increase in Americans’ electric bills is “appropriate and necessary”... -
Time to Focus on Implementation -- Kerry
Jan 14, 2016 | E&E - Climatewire
By Jean Chemnick
With a global agreement on carbon emissions now in place, it's time for countries to deliver the energy investments and policies they promised, Secretary of State John Kerry said yesterday. -
IETA's Forrister Discusses Future of U.S. Climate Diplomacy, Carbon Trading
Jan 14, 2016 | E&E TV
On the heels of President Obama's final State of the Union address in which he highlighted climate change as an urgent challenge, what is the future of U.S. climate diplomacy? During today's OnPoint, Dirk Forrister, president and CEO of the International Emissions Trading Association... -
What's Next for Golden State's Climate Diplomats?
Jan 14, 2016 | E&E - Energywire
By Debra Kahn
California came to Paris with a mission and left having made a splash. -
The EPA’s Politics in the Raw
Jan 14, 2016 | Wall Street Journal
By A.J. Kritikos
It’s official: The Environmental Protection Agency has violated federal law by engaging in “covert propaganda” and “grassroots lobbying.” That is the finding of a Dec. 14 report by the Government Accountability Office—though EPA bureaucrats are unrepentant.
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Put Aside Demagoguery and Approve the Trans-Pacific Partnership
Jan 14, 2016 | Washington Post
By Editorial Board
As President Obama reminded the nation during his State of the Union speech Tuesday, congressional approval of the Trans-Pacific Partnership (TPP) looms as a major piece of unfinished business for his final year in office. The 12-nation trade agreement would knit the United States and 11 Pacific Rim nations more closely together in a rule-based economic zone, with likely benefits for all. Yet presidential candidates across the ideological spectrum have distanced themselves from the pact, including Democrat Hillary Clinton, who helped promote it when she was Mr. Obama’s secretary of state. And that’s to say nothing of those who are crudely trashing the TPP, such as Donald Trump.
The upshot is that a pro-TPP member of the Senate Republican leadership, John Thune (S.D.), called the deal’s chances of passage this year “less than 50-50” after Mr. Obama’s speech. (When Mr. Obama touted the pact briefly in his address, most of the applause seemed to come from his own Cabinet members.) Congress and the candidates need to see the latest nonpartisan assessment of the pact’s effects, which has been issued by the World Bank. Like many previous analyses, it’s fundamentally positive.
In a world desperate for new sources of economic growth, the World Bank finds that the TPP would help by stimulating global trade, which had been increasing rapidly until the Great Recession but has been growing less rapidly since then. By 2030, the World Bank calculates, the economic output of TPP member nations could be 1.1 percent larger than without the TPP. The biggest winner would be Vietnam, which would add 10 percentage points to its gross domestic product, along with a 14 percent increment to the unskilled worker’s average wage. In other words, it would lift hundreds of thousands of people, if not millions, out of poverty.
Meanwhile, the TPP would add 0.6 percent to the size of the U.S. economy, not because the deal is somehow tilted to Vietnam but because the U.S. economy is already huge and open to trade, unlike Vietnam’s. Indeed, the TPP would increase U.S. unskilled wages by 0.4 percent, according to the World Bank, contrary to much fear-mongering about the impact of free trade on low-skilled, low-wage workers. Skilled workers’ wages would also benefit, to the tune of 0.6 percent.
To be sure, these projected economic gains for the United States are incremental, not transformational. They do not support some of the political hype the White House has emitted in favor of the agreement. But what they really don’t support is the even more hyperbolic disaster scenarios being peddled by TPP opponents.
Instead, the World Bank’s deliberate analysis reveals that the TPP is likely to be just what its most sober advocates have always maintained: a modest but measurable net plus for U.S. workers and businesses, with the additional benefit of strengthening the U.S. geopolitical position in Asia, whose strategic importance was just underscored by North Korea’s provocative nuclear testing.
Campaign-season demagoguery notwithstanding, Congress should take its earliest opportunity this year to move the legislation toward final passage.
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Gore-Tex Manufacturer's Assessment backs Fluorinated DWR Treatments
Jan 14, 2016 | Chemical Watch
Outdoor clothing brand, WL Gore & Associates, has released its finding that a non-fluorinated durable water repellent (DWR) treatment alternative does not offer a better environmental profile than the currently used fluorinated chemistry.
The finding is the result of a third-party life cycle assessment (LCA), which considered the full ecological footprint – including energy consumption, emissions and health considerations – of two DWR technologies: a non-fluorinated, hydrocarbon-based DWR and a short-chain polymer DWR, currently used in Gore products.
This assessment of Gore-Tex jackets showed that “the currently available non-fluorinated DWR offering does not give a better environmental profile than Gore’s current fluorocarbon-based DWR treatment.”
In field tests conducted by the company, the non-fluorinated DWR treatments “exhibited clear shortcomings”, including a failure to effectively repel water “after just a short period of use”.
The LCA consequently factored into the use-phase ecological considerations a customer's premature replacement of a jacket or their need to re-apply DWR treatments more frequently.
“Frequently replacing a jacket comes with similarly negative environmental impacts, since the production of a new jacket uses up additional resources like chemicals, energy and water,” according to Bernhard Kiehl, fabrics sustainability leader.
The company concluded that “consumer care, in order to maintain repellency performance, influences environmental impacts far more than choice of chemistry.”
Last year, Gore committed $15m in research to finding alternative DWR materials, amid concerns that short-chain PFCs currently used are persistent, bioaccumulative and toxic (CW 9 September 2015).
Several major fashion brands have pledged to phase out PFCs. However, Greenpeace has criticised the outdoor industry's failure to eliminate them, and contends that the chemicals used in manufacturers' DWR treatments are leaving an “indelible footprint” on the environment (CW 23 September 2015).
Says Mr Kiehl: “As a technology leadership company, we are committed to continually reducing the environmental footprint of our products and acting as a role model for a more responsible outdoor industry. To this end, we will continue to invest in research and apply sound science to drive future innovations.”
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Internet Exposing Grid-Control Systems to Attack -- DHS Official
Jan 14, 2016 | E&E - Energywire
By Blake Sobczak and Peter Behr
Poor security practices have made it easier for hackers to break into key networks propping up the electric grid, manufacturing plants and other infrastructure, according to a Department of Homeland Security official.
Marty Edwards, director of DHS's Industrial Control Systems Cyber Emergency Response Team, said he's "very dismayed" by seeing critical networks "just hanging right off" the Internet in 2015, despite years of advice to the contrary.
"We see more and more [cybersecurity] events that are affecting the actual control system network rather than the enterprise network," Edwards said yesterday at the S4 industrial control system cybersecurity conference here. Attackers are gaining access "mainly because more and more people are connecting that control system layer directly to the Internet," he added.
In Miami this week, it's not hard to find security researchers who can explain -- in highly technical detail -- why that's a bad idea. Several hundred plant managers, engineers, vendors and hackers have converged along the beach to discuss industrial cybersecurity, including a recent power outage in Ukraine that control system experts have linked to malware.
Edwards' team at ICS-CERT issued an alert about the Ukraine incident Monday, urging U.S. electric utilities to check their networks for traces of the BlackEnergy malware platform.
ICS-CERT regularly posts such warnings to control system operators, in addition to providing on-site security assessments, training and emergency response capabilities (EnergyWire, Oct. 15, 2014).
The DHS office has taken heat from security professionals for its reluctance to share potentially useful details from many investigations. There is also a perception that ICS-CERT undercuts the private sector with its taxpayer-funded cybersecurity services.
"Why should the government be doing these things for free when the big companies should be paying people if that [incident response] service is available?" said Dale Peterson, founder and CEO of cybersecurity consulting firm Digital Bond, during a sit-down interview with Edwards yesterday at the Jackie Gleason Theater.
Peterson has long claimed that ICS-CERT spends too much time on "busywork" of little help to the control system community.
He cited a case when a water utility made simple errors in configuring its computer network. Confused by what was happening, the company called in ICS-CERT.
The event, which was not a cyberattack, "hardly seems like something the experts that we hope and expect are in your organization should spend their time on," Peterson said.
Edwards acknowledged shortcomings at ICS-CERT, including its ability to communicate the severity of a given threat. But he suggested that even small incidents can teach valuable lessons to his response team and the companies involved.
"If you're a fireman, you do exercises and drills," he said. "It's good practice even to go out on a little fire, sometimes, so that you're ready when the big one comes."
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DOT Urges Court to Ditch Enviro Lawsuit over Pipelines
Jan 14, 2016 | E&E - Energywire
By Ellen M. Gilmer
Obama administration officials are urging a federal court to throw out a lawsuit from environmentalists who say the Department of Transportation fails to adequately regulate oil pipelines.
In a request this week before the U.S. District Court for the Eastern District of Michigan, DOT and Justice Department attorneys argued that the National Wildlife Federation was out of bounds in challenging DOT's oversight of pipelines that cross rivers. Agency officials say the group's complaints are without merit and, in any case, have been raised in the wrong court. DOT is asking the court to dismiss the lawsuit or transfer it to a federal appeals court in Washington, D.C.
"The Department disagrees with NWF on the merits -- the facilities identified by NWF are fully covered by spill response plans reviewed and approved by the Department under its existing regulations -- but this Court is not the proper jurisdiction in which to litigate this dispute," this week's filing said.
According to agency lawyers, the Oil Pollution Act requires NWF's complaints to be reviewed by the U.S. Court of Appeals for the District of Columbia Circuit.
"Significantly, NWF's amended complaint does not identify a single spill response plan submitted to the Department that the Department has failed to either review or approve," the filing said. "NWF's amended complaint uses its 'review and approve' allegations as a backdoor means of seeking review in this Court of the Department's alleged failure to promulgate regulations."
NWF sued the agency in October, arguing that DOT has failed to fill a regulatory gap for oil pipelines. While the agency requires worst-case spill response plans for pipelines on land, and the Department of the Interior requires the same for pipelines offshore, no such requirement exists for the intersections of pipelines and rivers or other inland bodies of water, the environmentalists say.
"DOT's 20-year-plus continuing failure to carry out its nondiscretionary duties described above has left the nation's public health, fish and wildlife, public and private property, shorelines, and beaches vulnerable to worst-case discharges of oil or hazardous substances," the group told the court last fall.
The issue gained national attention in 2010 when an Enbridge Energy Partners LP pipeline spilled 800,000 gallons of crude oil into the Kalamazoo River in Michigan. Another Enbridge pipeline is facing scrutiny in Michigan for crossing the St. Clair River and more than 4 miles through the Straits of Mackinac.
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'Pipelines on Rails' Again Land in Watchdog's Spotlight
Jan 14, 2016 | E&E - Energywire
By Blake Sobczak
Oil tank car upgrades have made a federal transportation watchdog's list of "most wanted" safety improvements for the second year running.
"Each day that passes until our nation's present tank car fleet is replaced or upgraded is a day lived with elevated risk," the National Transportation Safety Board warned yesterday, citing delays in getting rid of explosion-prone cars known as DOT-111s.
The independent agency pointed to several oil train disasters that have come with an "enormous growth" in crude-by-rail traffic. In early 2015, a CSX oil train jumped the tracks and burst into flames near Mount Carbon, W.Va., injuring one. Two years earlier, a 72-car train hauling crude through Lac-Mégantic, Quebec, derailed and exploded, killing 47 people.
North American crude traffic fell slightly last year compared to 2014 levels, reflecting the oil price slump and an uptick in available pipeline infrastructure in North Dakota's Bakken Shale play. Still, rail-bound shipments of crude oil are expected to top 400,000 carloads in 2015, based on the latest U.S. data, earning oil trains the nickname "pipelines on rails."
Since NTSB first put tank car safety on its annual most wanted list in 2015, regulators at the Department of Transportation have required hazardous materials shippers to phase out all DOT-111s over the next decade. Oil and ethanol companies would need to scrap or update the oldest DOT-111s much sooner, with the first deadline for crude shippers looming in 2017.
NTSB also urged freight railroads to speed up adoption of positive train control, another technology that can prevent deadly derailments.
The two issues were paired in the 10-item list under a recommendation to "promote completion of rail safety initiatives."
"The good news is that Congress and regulators have issued federal mandates requiring PTC and improved tank car design," NTSB said. "The bad news is that we have already seen delays in implementation by railroads, both public and private."
NTSB Chairman Christopher Hart said "sooner is better" for adopting new tank car standards but declined to specify a timeline in a press conference yesterday.
"We have been lucky thus far that derailments involving flammable liquids in America have not yet occurred in a populated area," he said. "But an American version of Lac-Mégantic could happen at any time."
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Technology Derailed: How For-Profit Industry Is Risking Railway Safety
Jan 14, 2016 | Boston Review
By Bryce Emley
Few of us think about cyber security until it fails. Even when it does in a spectacular way—as in the recent theft of nearly 80 million healthcare records from Anthem, contact information from 76 million JPMorgan Chase investors, and 5 million sets of fingerprints from the federal government—we tend not to notice unless the consequences are both direct and dramatic. (Think of the would-be adulterers outed by the Ashley Madison hackers.) This benefits not only the perpetrators, but also their corporate victims, who often opt to deal discreetly, or not at all, with their vulnerabilities.
Among the less glamorous targets of hacking are American railways. But nearly 40 percent of U.S. freight is transported by rail—vastly more than any other mode of transportation. It is efficient and also one of the safest ways to move heavy loads, thanks in part to the 2008 Rail Safety Improvement Act (RSIA), which required all rail companies to overhaul their safety regulations by the end of 2015. One of the act’s requirements is that all rail companies adopt positive train control (PTC), a series of installations and enhancements that allows trains to be operated and monitored remotely via wireless network.
If PTC mitigates potential human errors (speeding through turns, falling asleep in transit, failing to lock brakes), it also creates new dangers by opening up avenues to hackers—vulnerabilities shared by all Web-enabled electronics, payment methods, and vehicles. Neil Smith, a San Francisco–based independent security researcher who has been working with the U.S. Industrial Control Systems Cyber Emergency Response Team (ICS-CERT) since 2012 to assess railway network vulnerabilities, says that the chances of a breach are dangerously high.
In 2008 a teenager in Lodz, Poland, hacked his town’s rail network with only a TV remote and a library computer, taking control of nearby trains and causing multiple derailments. And just because we haven’t heard of serious train hacking in the United States doesn’t mean it hasn’t happened. The watchdog website Nextgov obtained a summary of a Transportation Security Administration (TSA) meeting in which government officials admitted that hackers had “disrupted the railway signals” of an unnamed northwestern rail company on two occasions in December 2011. Industry representatives quickly dismissed the memo as inaccurate.
This seems to be the rail industry’s modus operandi. Because vulnerabilities make for bad PR and potentially cost a lot of money to fix, it is best to avoid disclosing the sources of accidents. In 2012 Smith, also an avid ham radio hobbyist, noticed an antenna on a passing BNSF Railway train while he was waiting at a rail crossing and decided on a whim to record the train’s telemetry data. Stricken by how easy it was for him to access the train’s automated status and control signals, he reported suspicions of network vulnerabilities to ICS-CERT. Until that point, few—if any—professionals in the industry had publicly suggested that cyber attacks on trains were possible. When ICS-CERT consulted with the train’s network developer in hopes of getting Smith the green light to run more definitive tests, they responded cryptically, then shut down communication with both Smith and ICS-CERT.
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Smith heard nothing else about his data until 2014. Within a few months of the massive derailment in Lac-Mégantic, Quebec, which killed dozens and leveled several city blocks, a TSA-Surface inspector found Smith’s report and emailed him about a similar derailment in Michigan. To him, Smith’s research suggested that it was possible that someone had hacked this train’s network, but the theory ultimately lost traction once it moved up to the regional supervisor. Smith heard nothing more about it and was never able to find public reportage on the derailment, noting that the TSA-Surface inspector and his team likely had too little expertise with cyber issues to pursue it further.
According to Smith, though he and other researchers are increasingly confident that North American railways are being hacked, their hands are tied. “Without the manufacturers and rail companies becoming involved,” Smith explains, “we can’t do live tests to be 100 percent sure that something is a ‘for sure’ vulnerability. I can run simulations all day long that back up all of my suspicions, but it’s not like I can walk over to a train track and test it out—that would be a literal act of terrorism.”
Because network vulnerabilities are hard to anticipate, some companies that offer security products—electronics manufacturers and online shopping platforms, for example—hire security research companies such as Rapid7 or Synack to pry into their systems in order to identify holes and advise on how to patch them before they can be exploited. This practice only makes rail companies’ resistance to independent vulnerability testing more disconcerting: it is reasonable for a company with a product so dependent on wireless access to pursue independent testing, all the more so given the industry’s incredibly complex overhaul of systems and protocol over a short span of time and its newness to network security. As a result, Smith adds, rail companies are rarely equipped with necessary defenses because there were no industry-wide, industry-specific security standards to guide their network developers when the RSIA was passed: “The developers woke up and got a memo saying, ‘You need to have X, Y, and Z done by December 31, 2015,’ and so they addressed X, Y, and Z, meanwhile leaving off the other twenty-three characters in the alphabet.”
The other problem is that the technology the rail industry relies on is created by a company owned by Class 1 railroads—those that earn at least $433.2 million, accounting for nearly 70 percent of U.S. freighting in terms of mileage. The U.S. freight rail network as a whole is a $60 billion private industry, heavily invested in its shareholders, customers, and profits. This, Smith believes, is likely why companies don’t want to work with independent researchers or even the Department of Homeland Security: “If these companies agree to investigate their own networks, they’re admitting that there could be vulnerabilities that would require huge amounts of money to overhaul. That could hurt sales and stock prices and scare off their shareholders.” From a financial standpoint, there’s no incentive to rock the boat by admitting to potential security failings, and so publicity and reliable media coverage of railway vulnerabilities are fairly hard to find in America.
What media coverage does exist often comes in the form of conspiracy theory and niche websites. (An exception was Newsweek’s 2015 article “The Future of Hacking: Your Planes, Trains and Automobiles Aren’t Safe.”) By contrast reporting on theories and predictions about railway cyber security in Europe is much easier to find, spanning major publications and organizations ranging from the BBC to the UK’s Financial Times to the RT news outlet. Additionally there seems to be increasing attention to rail security in European cyber security conferences, including a recent panel at the Chaos Communication Congress in Hamburg (covered in Popular Science) and Industrial Control Cyber Security Europe, which is affiliated with the Rail Cyber Security Summit held in London this March. Rod Diridon, Sr., emeritus executive director of the Mineta Transportation Institute, attributes the difference in media treatment to the fact that “most European countries are somewhat socialistic, and their railways are owned by the government and not publicly traded.”
Indeed the U.S. government has little control over the security practices of private rail companies; still one might expect government-funded passenger lines such as Amtrak to be in complete compliance with RSIA. But just weeks before the major Amtrak derailment outside of Philadelphia in May last year, Congress moved to delay mandatory installation of PTC by five years. The derailed train was not equipped with PTC, and officials at the National Transportation Safety Board explicitly stated that the mandated autocontrol technology would have prevented the disaster entirely. Amtrak posted an official blog post days later, noting, “Amtrak leads all other large railroads (Class 1) in the railroad industry in the installation of PTC systems, having spent $110.7 million dollars since 2008 to install PTC.” Though only “certain segments of the American rail network” fall under that mandate, Philadelphia’s Northeast Corridor is one of them.
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Even though PTC has troubling faults, it is a strong step forward in railway safety. Establishing safer railways isn’t a matter of getting rid of it, but of making a concerted national effort to test and secure it. But the intersection of government regulation and private business in the rail industry is complex. The federal testing facility responsible for assessing PTC integration, Technology Transportation Center, Inc., is owned by the Federal Railroad Administration (FRA) but operated by the American Association of Railroads (AAR). “Even though the FRA is doing the testing,” Smith explains, “ultimately it’s up to the AAR to decide what gets tested. With the amount of power they have, it’s like we’re still dealing with the train barons of the 1800s.”
The private companies responsible for making improvements to their networks are also the ones who get to decide whether they need to make changes, and when and whether to engage third-party security experts. Of course, they already have IT teams working to keep their networks secure, but, according to Smith, these efforts have been perilously fragmented during the hasty scramble for compliance; the seven Class 1 train companies’ developers are isolated from each other, from PTC developers, and from third-party security companies. “So you’ve got separate teams across many different rail companies, integrators, and contractors who, if they were just one cohesive unit, might have resolved many security issues,” Smith explains. “But since each one has their own legal teams, PR execs, etc., they don’t want to report that something is wrong if it might mean making them or their business partners look bad.”
Given how new and tenuous PTC is, it seems foolhardy to dismiss independent researchers who have identified existing weaknesses. Certainly there is a lot at stake: one derailment can cost a rail company millions of dollars, so it would seem that protecting their networks is in their best interest. But since RSIA was passed, these companies have invested billions of dollars collectively in compliance upgrades and are now looking at the prospect of investing billions more to fix it. If avoiding that investment means overlooking a theoretical hacking vulnerability that hasn’t proven to do any damage so far, then, at least for a few more years, they seem more than willing to take their chances.
In October Congress voted to push back the RSIA deadline to 2018. In the interim, there may be two possible solutions: either the FRA takes back control of its testing facilities and runs unbiased testing to shape further legislation, or Congress pressures these companies to pursue independent analysis and testing beyond their own internal testing, which so far has proven insufficient. If independent researchers such as Smith can still see the holes they have left in their defenses, then independent testing needs to be a central component of their security protocol, no matter what the cost.
As long as for-profit companies calculate the value of our security according to cost and PR optics, the technologies that facilitate modern life will present untold liabilities. A profit-motivated company has little to gain from transparency if it may alarm investors and consumers and require greater investment with no promise of return. To see the business is to alter it, and publicly traded companies prefer not to open themselves to independent scrutiny, even if doing so would make us safer.
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Senate Bill 'in the Queue' for Floor Time
Jan 14, 2016 | E&E - Greenwire
By Geof Koss
The bipartisan energy package that passed the Senate Energy and Natural Resources Committee last summer is in line to see floor time, but the exact timing isn't yet set, according to a Senate GOP aide.
"ENR is in the queue and our staff is preparing for floor action," Robert Dillon, a spokesman for Senate Energy Chairwoman Lisa Murkowski (R-Alaska), said today in an email, adding that a date has not been set but it could come up "soon."
Murkowski has been angling to bring the bill (S. 2012) to the floor sooner rather than later, which -- should it pass -- would allow the Senate to conference with the House on companion legislation (H.R. 8), which passed the lower chamber last year (E&E Daily, Jan. 5).
One lobbyist said today that the bill could come up the week of Jan. 25 but was skeptical over its prospects, saying the desire by both Murkowski and ranking member Maria Cantwell (D-Wash.) to keep more controversial provisions from the measure may rob it of any serious impetus to make it a priority for many members.
However, one Senate Republican aide says the inclusion of language imposing a deadline on the Energy Department for making final decisions on applications to export natural gas -- a long-standing priority for Republicans and some Democrats -- adds momentum for the bill. The bill also contains provisions intended to boost renewables and efficiency, while strengthening the electric grid.
In an op-ed published today in The New York Times, Murkowski and Jay Faison -- the founder of the ClearPath Foundation, which pushes conservative clean energy solutions -- emphasize the potential of the bill's hydropower provisions to curb greenhouse gas emissions, while noting the White House's threat to veto the House bill, which includes similar provisions.
"President Obama has described climate change as one of the greatest challenges facing our country and has said he is open to new ideas to address it," they wrote. "He can start by supporting legislation to increase the nation's hydropower capacity, one of our vital renewable energy resources."
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U.S. Chamber Promises to Fight 'Runaway EPA'
Jan 14, 2016 | E&E - Greenwire
By Geof Koss
The head of the U.S. Chamber of Commerce today said the business group plans a multipronged front for pushing back against President Obama's regulatory agenda in his final year, with a major focus on U.S. EPA.
In his annual "State of American Business" address, U.S. Chamber CEO Thomas Donohue once again singled out EPA for a tongue-lashing over its regulatory push.
"The current administration is on a regulatory tear -- and this will continue until the day the moving van backs up to the door of the White House next January," Donohue said. "It has unleashed a runaway EPA that is stretching the law -- and in some cases breaking it -- in order to assume control over local economic development across America."
Citing a "raft of EPA measures" -- including upcoming rules to curb methane emissions from oil and gas operations -- Donohue vowed to use "all of our tools to challenge overregulation -- working in the agencies, working with Congress through the appropriations process and the Congressional Review Act, and going to court."
The pushback will also include supporting legislation to overhaul the regulatory apparatus, with Donohue noting last year's passage of a bill to streamline permitting (E&E Daily Oct. 23, 2015). He also cited the "Regulatory Accountability Act," H.R. 185, to impose numerous requirements on the regulatory process.
"It would ensure that regulations costing over a billion dollars would be narrowly tailored, supported by credible data and evidence, and impose the least possible burden while still implementing congressional intent," Donohue said, calling the bill "key" to its efforts this year.
While some question the ability for any major legislative wins during an election year, Donohue noted a slew of bills that became law last year with its support, including trade promotion authority, a repeal of the oil export ban, reauthorization of the Export-Import Bank of the United States, cybersecurity provisions, and permanent and multiyear extensions of a number of tax provisions.
Another key priority is seeing the Trans-Pacific Partnership trade deal approved by Congress, while also pushing for a similar deal with the European Union.Election push
Donohue said the U.S. Chamber would work "aggressively" to elect candidates "who understand that it's the private sector, not government, that creates jobs and prosperity -- and that the overriding goal must be to expand the economic pie, not simply redistribute it."
The group will sit out the presidential election, but Donohue promised to weigh in on policy proposals from the candidates. "If candidates choose to beat up on business, they're going to hear from us," he said.
Donohue called rhetoric from presidential candidates from both parties "a little scary."
He said, "On one side, we have candidates promising to double down on the current administration's policies -- more spending, more entitlements, more taxing and more regulating. I guess they figure that if something isn't working, just do more of it. Does that make any sense?
"And on the other side, there are voices -- sometimes very loud voices -- who talk about walling off America from talent and trade and who are attacking whole groups of people based not on their conduct but on their ethnicity or religion," he said. "This is morally wrong and politically stupid."
Donohue later said his comments were not about any single candidate.
"What business wants to see in this campaign is a long-overdue focus on economic growth," he said. "Growing the economic pie is the only realistic way to create jobs, lift incomes, reduce inequality and expand opportunities for all Americans."
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After SOTU, Preparing for the Next Fossil Fuel Fight
Jan 14, 2016 | E&E - Climatewire
By Brittany Patterson and Evan Lehmann
Environmentalists and industry groups alike are speculating on what the president has in store next for oil and coal after a seemingly nebulous statement he made during Tuesday night's State of the Union address.
"Rather than subsidize the past, we should invest in the future -- especially in communities that rely on fossil fuels," Obama said. Offering his only climate change policy prescription of the evening, he added, "That's why I'm going to push to change the way we manage our oil and coal resources, so that they better reflect the costs they impose on taxpayers and our planet."
Reading between the lines, some see the president's statement as a signal that the administration will try to push through reforms to federal leasing programs for oil, gas and coal on public lands.
A White House official could not confirm Obama's plans and said the administration will provide additional details in the coming weeks.
Two decades-old pieces of legislation -- the Mineral Leasing Act of 1920 and the Mineral Leasing Act for Acquired Lands of 1947 -- give the Department of the Interior's Bureau of Land Management responsibility for minerals leasing on more than 550 million acres of federally owned public lands, as well as state and private lands where mineral rights have been acquired by the federal government.
About 40 percent of U.S.-produced coal comes from 310 active coal leases managed by BLM. Eleven percent of the country's natural gas and 5 percent of its oil come from oil and gas wells on federal lands. BLM collects more than $1 billion each year in bonus bids and royalty revenues from coal-mining operations alone on federal lands.Echoes of 'keep it in the ground'
One former official interpreted Obama's remarks as being aimed at either raising the cost of coal through BLM's leasing process or making it off-limits to coal companies altogether. Neither of those methods would require lawmakers' consent, he said.
The latter seems to echo Obama's increasingly frequent message about leaving fossil fuels untouched underground. In his address, he alluded to the idea of hastening the nation's departure from "dirty energy."
Currently, about 475,000 acres of federal land is leased out for coal mining, according to BLM records. One way the president could reduce emissions is to prevent additional land from being used for extraction, said Bob Abbey, a former director of BLM under Obama.
"There's some discretion to the agency itself on which lands, if any lands, they would like to lease for that particular use," Abbey said in an interview yesterday. "If they decided they would like to lessen the amount of coal that's available to the markets, they would certainly have that discretionary authority to not offer as much land, or tonnage of coal, to companies through the leasing process."
Obama could also reduce the amount of mining by raising its costs. BLM has been criticized for charging below-market rates to companies that are increasingly selling coal in more expensive markets in Asia. If, for example, a company were planning to sell the federal coal in the United States, where coal prices are low, BLM would theoretically charge it less than if the company planned to sell it in more lucrative markets. More coal now is being sold overseas, but critics contend that BLM often fails to charge those companies more.
"And the coal companies, at least some, could say that they're making a sizable profit that wasn't incorporated into the appraisal process," Abbey said. "I think based upon the information that has come to light over the last couple years, the Department of the Interior already has the authority to make changes in the way they appraise coal, and to adjust those appraisals to reflect the market. That in itself I think would raise the cost for leasing."Gale Norton floats price adjustment theory
Industry groups balked at yet another example of presidential action on climate, carried on the backs of reducing U.S. dependence on fossil fuels.
"The president is obviously on the wrong path," said Luke Popovich, vice president of external communications for the National Mining Association. "He's targeting the largest share of coal production from an energy source that provides the largest share of U.S. electricity even now -- removing coal will create a far less diverse energy supply and damages economies in coal states."
Kathleen Sgamma, vice president of government and public affairs for the Western Energy Alliance, a group that represents oil and natural gas companies that operate on public lands in the Western states, said the administration "basically wants to drive oil and gas producers off federal lands."
"It's one thing to update regulations, but it's another to change the nature of production," she said. "For Western producers and Western communities, oil and gas is extremely important."
Others interpreted Obama's meaning differently. Gale Norton, former Interior secretary under President George W. Bush, thinks that Obama could be talking about adjusting the price of federal coal to reflect the costs of releasing greenhouse gases.
In essence, that would require throwing out the traditional appraisal process used by BLM to set royalty prices.
"For the administration to go an entirely different direction and try to use something besides ordinary appraisal approaches seems like it would take congressional action," Norton said.
That scenario might be unlikely, given Obama's tendency to sidestep the Republican Congress.
Instead, he might be considering a change to the environmental review process that is required before new mines can be approved. If it includes a requirement to consider the life-cycle effects of greenhouse gases associated with the coal to be extracted, it might tip the scales against the new mine.
Norton said it's unclear if Obama could do that without proposing a new rule, which might not be done before he leaves office.
"I'm sure that's one that would be litigated one way or the other, with some saying there should be a rulemaking and others saying a secretarial order could require Interior agencies to consider climate change impacts," Norton said.Congress questions the federal leasing programs
Yesterday, Democratic Reps. Alan Lowenthal of California and Raúl Grijalva of Arizona introduced legislation that would raise the rate oil and gas companies pay for leasing public lands to "ensure that the American people are being fairly compensated for the extraction of resources on public lands."
The bill would push the minimum bid companies have to pay for federal lands to $4 per acre and the rental rate to $3 per acre per year. It also would mandate that values be adjusted for inflation. Rates were last set by Congress in the 1980s and have not been adjusted since.
The Sierra Club's lands protection program director, Athan Manuel, said additional regulations on the federal program ultimately benefit the climate.
"The oil and gas industry has benefited from outdated royalty rates for leasing our public lands, while the American people are forced to suffer the consequences of fossil fuel extraction," he said.
Sen. Ed Markey (D-Mass.), who called on the Government Accountability Office to look into the federal coal leasing program in 2012, said, "Leading on climate change means leading by example in how we manage the oil, gas and coal resources that belong to the American people."
"I welcome the president's call to implement reforms that I have been fighting for to ensure that we are not worsening climate change by giving away these fossil fuel resources at bargain-basement prices," he said.
Publicly released in 2014, the GAO report found coal production from federally leased land leveled off in 2002. One of the report's recommendations was that BLM require state offices to use more than one approach to estimate fair market value where practicable.
Last summer, Interior launched a series of listening sessions on the coal program, aimed at making leasing "more transparent and more competitive" (E&ENews PM, July 29, 2015).
Speaking at the first meeting, Interior Secretary Sally Jewell said she wanted leasing to meet the administration's "climate objectives." The department has not said when final recommendations will be made.
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9th Circuit Could Revisit Debate Over CWA Groundwater Liability Claims
Jan 14, 2016 | InsideEPA
By Bridget DiCosmo
The U.S. Court of Appeals for the 9th Circuit could revisit the issue of how Clean Water Act (CWA) liability applies to contaminants that reach surface waters through groundwater connections, as a pending appeal might allow the court to expand on a 2006 ruling seen as opening the door to regulating groundwater under the CWA.
Any new appellate decision on how to assess groundwater liability claims under the water law could help shed light on the contentious issue, given that EPA and the Army Corps of Engineers' joint regulation to define the scope of the CWA clearly exempted groundwater as being covered by the law but preserved the possibility that waters with “shallow subsurface connections” to traditionally navigable waters could be considered jurisdictional.
In the 9th Circuit, a Hawaii wastewater plant is appealing a May 30, 2014, district court ruling that found the facility discharged pollutants into the Pacific Ocean via underground springs in violation of the CWA.
Maui County, which operates the plant, on Dec. 15 filed its appeal of the U.S. District Court for the District of Hawaii's decision in Hawaii Wildlife Fund, et al., v. County of Maui.
The lower court's ruling said the Lahaina Wastewater Facility on Maui, which released treated effluent into four on-site injection wells that eventually discharged into the Pacific Ocean through a submarine springs, violated the water law by operating the injection wells without a CWA discharge permit.
The parties in the suit have been in the remedy phase of the litigation since 2014, and on Nov. 17 entered a settlement agreement with the U.S. District Court for the District of Hawaii. The agreement would require the county to make good faith efforts to secure and comply with requirements of CWA National Pollutant Discharge Elimination System (NPDES) permits for the injection wells while preserving the county's ability to appeal to the 9th Circuit and the Supreme Court -- but would not take effect until the end of the ongoing legal battle.
A final judgment in favor of the environmentalists in the appeal would trigger the other pieces of the settlement agreement, including conducting wastewater reuse projects totaling $2.5 million.
The lower court's 2014 ruling says that it granted the environmental plaintiffs' motion for partial summary judgment because a dye tracer test showed effluent migrating from the plant to the ocean. But the rule also said that establishing CWA jurisdiction in similar cases absent such tests is a murkier issue.
The parties in the suit agreed that the presence of the dye demonstrates a hydrologic connection, but advocates sought CWA liability for discharges, including suspended solids, dissolved oxygen, nitrogen and phosphorous.
The county argued that it applied for a NPDES permit in November 2012 with the state Department of Health, and should not be liable for unpermitted discharges because the plaintiffs cannot show "there are significant physical, chemical and biological impacts as a result of the connection to warrant issuance of an NPDES permit."
Regulating Groundwater
The district court cited the 2006 9th Circuit ruling, Northern California River Watch v. City of Healdsburg, which is seen as upholding the possibility of regulating groundwater under the CWA when it serves as a medium through which pollutants are channeled into jurisdictional waters -- though industry argues that is not the case.
For example, electric utilities are urging two federal district judges to allow a speedy appellate ruling on whether the 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 issue. “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 said 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.
Duke and its allies are hoping to win view of an Oct. 22 order from Judge Loretta C. Biggs in Yadkin, 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.
CWA Jurisdiction
Though the court managed to bypass the Healdsburg test in Hawaii Wildlife Fund because it held that the dye test provided ample evidence that the discharges were "functionally equivalent to a discharge into the ocean itself," it clearly struggled with how to apply the Healdsburg ruling, particularly factoring in the CWA jurisdiction rule.
The rule, which is subject to myriad federal district and appeals court challenges, sought to address confusion created following the 2006 ruling Rapanos v. United States.
In Rapanos, the justices split over what test to use for determining jurisdiction. Justice Antonin Scalia ruled in the court's plurality decision that only "relatively permanent waters" that hold a "continuous surface connection" to a traditionally navigable water can be considered jurisdictional. By contrast, Justice Anthony Kennedy ruled in a concurring opinion that waters that share a "significant nexus" to navigable waters can be regulated under the water law.
"If the Healdsburg test is the only way through which a discharge into groundwater could be determined to come under the Clean Water Act, Healdsburg poses enormous barriers to the regulation of groundwater -- barriers that even the plurality in Rapanos v. United States would likely not endorse," the Hawaii Wildlife Fundruling says.
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Calls Grow For States To Regulate New Sources In Mass-Based ESPS Plans
Jan 14, 2016 | InsideEPA
By Dawn Reeves
States considering mass-based plans to comply with EPA's existing power plant greenhouse gas rule are facing growing calls from industry, environmental and other sources to also regulate new plants in their compliance plans as the easiest way to prevent GHG emissions “leakage.”
“Without question, the simplest approach is to include all sources, including new sources, under the cap,” Dallas Burtraw of Resources for the Future (RFF) told a Jan. 11 event hosted by the Bipartisan Policy Center (BPC).
EPA's final existing source performance standards (ESPS) generally requires states that use mass-based approaches to take steps to prevent leakage of emissions from existing plants to new facilities, particularly to new natural gas combined cycle plants.
Among the leakage-mitigation options the ESPS provides is for states to add a “new source complement” to a state's mass-based emission target that represents emissions from projected new generation through 2030. The additional emissions are intended to accommodate emissions from new plants, potentially subjecting them to less-stringent requirements than what they might face under the agency's new source performance standards (NSPS).
If a state selects this option, any new facility would not be subject to the NSPS requirements because of the Clean Air Act's bar on double regulation, though the new sources would be regulated in this approach under state authority and would not be covered by the ESPS. But the plan would help avoid leakage, in which existing generation is curtailed in favor of new generation that is not covered by the ESPS' emissions limits, undercutting the rule's overall GHG cuts.
The rule also offers other options to address leakage, including the approach the agency takes in the proposed federal plan -- an updating output-based allocation system with a set aside for renewable energy resources. Additionally, states may choose to show that emission leakage is unlikely to occur “due to unique state characteristics or state plan design elements” that mitigate its potential.
Over the past few weeks, officials in Pennsylvania, the nine Northeast states participating in the Regional Greenhouse Gas Initiative (RGGI) and other states have faced calls to adopt the new source complement approach.
While many are calling for use of the new source complement as a way to streamline regulation of new and existing sources under one target, the approach also faces concerns from some officials who fear it would set a hard cap on emissions that may make it difficult to develop new emitting generation in the event of future demand.
But RFF's Burtraw downplayed growth concerns that would prevent states from accepting a mass-based cap, including that EPA can reevaluate the standards within eight years, at which time the agency could redesignate new units as existing units to bring them under the cap. This “poses a lot of uncertainties for power markets,” he said, and added that EPA has important decisions to make in its final model rule to address leakage concerns.
Politically Charged
Speaking at the same BPC event, Bruce Wilcoxon of Dynegy Inc. agreed that including new sources is the best way to address leakage, while he criticized EPA's set-aside approach, saying it raises “complexity and the politically charged nature of the situation” -- such as who decides where those set-asides go -- that states should avoid.
Similarly, Venu Ghanta of Duke Energy charged that EPA may not have provided enough incentive for states to use the new source complement approach because the agency already built in a considerable amount of load growth in states' mass-based caps for existing sources. EPA “did themselves a disservice here,” he said.
He points to North Carolina, where EPA is allowing just 600,000 additional tons of emissions under the new source complement beyond the 51.3 million tons the agency allowed for existing sources. Ghanta calls this “a disincentive . . . . Would I rather do this or take the set aside? I think that's part of the challenge some states are having,” he said.
But Bruce Phillips of NorthBridge Consulting said that because of low natural gas prices and declining solar costs, leakage should not be much of an issue in the ESPS. “I think [low gas and solar prices] diminishes the concern over the impact of the new source complement and the cost of meeting economic growth. I think that kind of an approach may be a more plausible pathway forward than some some states have given it credit for.”
Nevertheless, calls for the approach have been growing. Late last year, several low-carbon power generators urged officials in Pennsylvania and other states to adopt the new source complement, saying it would help discourage a rush to new natural gas plants that would threaten to displace existing natural gas and nuclear power plants.
In separate comments to Keystone State regulators, officials from Calpine Corp. and Exelon Corp., each urged the Keystone State to pursue the new source complement approach, fearing that leakage would incentivize development of additional and unnecessary natural gas generation that would result in market distortions that unfairly disadvantage existing plants.
Environmentalists have also supported the approach. In addition to backing industry calls in Pennsylvania, a coalition of 26 environmental groups last month urged regulators in the nine Northeast states that participate in RGGI, the power plant cap-and-trade program, to only allow other states to trade for ESPS compliance if those states include new sources in their plans.
RGGI covers both new and existing plants, and observers see using EPA's new source complement as the easiest way to align that program with the ESPS.
The environmentalists are now warning that allowing RGGI states to trade credit with states that include only existing plants would cause leakage to new plants in those other states. “This inclusion of new sources should be an explicit precondition for any state that wishes to trade with RGGI,” they said in a Dec. 4 letter.
And the coalition notes that states wanting to include only existing sources in ESPS plans are required by EPA to take steps to avoid leakage, and “the simplest and fairest solution would be for states to require that both existing and new sources are subject to the same standards and price signals."
If the nine RGGI states adopt environmentalists' advice, that could put pressure on other states to also regulate new sources, given that it would be the only way to link with RGGI, an already-established, successful program.
For example, an RFF source has previously said that RGGI and California GHG programs -- which both cover new and existing plants -- could hold outsize influence on the issue among other states.
“The crucial decision with respect to the national success of the Clean Power Plan is whether states include new sources under their emissions caps,” the source said. “California and RGGI already do. These states have headroom as a group, and they can decide who to share that with. Whether they do so may depend on the architecture of plans in the other states.”
Recent Studies
Several recent studies are also suggesting that states may want to adopt mass-based plans with new source complements.
For example, a December policy brief from Duke University's Nicholas Institute finds that the new source complement does not have a universal impact on whether states comply with the rule but also concludes that including new sources “removes the risk of leakage.”
Including new plants “may make compliance harder or easier, depending on assumptions about future electricity demand and the resources that will meet that demand,” the paper says. “Covering new sources would provide a consistent economic signal to existing and new sources with a similar emissions profile. In contrast, excluding new sources may lead to power market distortions. Covering new sources would improve the program's environmental integrity by eliminating the risk of leakage.”
The paper adds that states may face a tradeoff in deciding whether to have a new source complement as part of their program. Some states “may perceive that covering new sources imposes risk by limiting total future emissions, but doing so will likely increase electricity markets' efficiency, states' flexibility in allowance allocation, and emissions integrity, and it may increase the supply of allowances for existing sources.”
The Rhodium Group and the Center for Strategic & International Studies released a Jan. 7 analysis, “Assessing the Final Clean Power Plan: Emissions Outcomes,” that delves into the issue as well, noting that “calculating the ultimate emissions-abatement potential is more difficult than simply adding up the state reduction targets” in part because of leakage, which the paper says is “rightly recognized” by EPA as an important issue to be addressed because it puts the integrity of the rule at stake.
But the paper finds that attempts to address leakage could have other unintended consequences “not captured under its leakage definition. There are two additional categories of potential adverse emissions outcomes. The first is interstate leakage, in which emissions shift from existing sources in one state to new sources in another state. The second is emissions increases from new fossil generators due to the replacement of generation from existing nonemitting generators such as nuclear and hydroelectric plants.”
The paper also expects more clarity from EPA when it issues its final model rule and federal implementation plan, noting that it solicited additional comment on leakage in its draft plans, but it adds that if intrastate leakage prevention provisions are “not effective . . . emissions could be higher than we present in our scenarios.”
And while EPA seeks to prevent such intrastate leakage, the paper also notes that the potential for interstate leakage is “not explicitly prevented” in the rule, due to Clean Air Act requirements that EPA set performance standards only within a state, not across states or nationally. This type of leakage is most likely to occur in the scenario that the environmentalist coalition is seeking to prevent in its letter to RGGI.
The paper describes the emissions that could increase when a state with a cap on existing sources only trades with a state with a cap on new and existing sources. Here “emissions are leaking from the state with a cap on new and existing sources via interstate trade in electricity."
Finally, the paper warns of emissions increases through loss of existing zero-emitting baseload generation that could be replaced by new natural gas combined cycle not covered by the plan.
Additionally, ICF International recently released a “quick take” paper that looks at potential effects of the rule on asset values with the assumption that each state adopts a mass-standard including new sources to address leakage.
It finds a wide range of outcomes, especially in values to coal plants, which experience a decrease of between 5 and 70 percent nationwide, with an average reduction of 30 percent. “The variation is driven by regional markets: coal plants in gas-intensive areas decrease significantly compared with coal-dominant regions. When coal is on the margin in a significant number of hours, [carbon dioxide] costs are more readily passed through in power prices.
The paper adds: “In natural gas-dominant regions, less CO2 is emitted by the marginal gas-fired plants, and thus compliance costs cannot be passed through as easily. In other words, compliance costs are rising faster than energy prices, and thus margins are compressed.”
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Judges Warn Challenge of 35-Year-Old Rule is 'Too Late'
Jan 14, 2016 | E&E - Greenwire
By Robin Bravender
Environmentalists aren't likely to succeed in their lawsuit challenging a 35-year-old U.S. EPA clean air rule, federal judges signaled today.
Lawyers representing Sierra Club de Puerto Rico and other groups pressed a federal appeals court today to toss out an EPA rule from 1980 dealing with how EPA regulates sources of air pollution in areas that have been deemed to be exceeding national standards for certain air pollutants.
The Puerto Rico-based groups say they'll be hurt by the rule because it will allow excessive emissions of lead from an incinerator that's received a permit to build in Arecibo, Puerto Rico, within an area that's already in violation of national lead limits.
If the environmentalists are successful, the case could have broad national implications for when groups could challenge government regulations. But a panel of three judges on the U.S. Court of Appeals for the District of Columbia Circuit today indicated the groups had lost their chance.
"Our case law is quite clear," said Senior Judge Harry Edwards, a Democratic appointee. "You're too late."
Under the Clean Air Act, groups can sue within 60 days after a rule is published in the Federal Register -- or later, if the lawsuit is based solely on grounds that arise after those 60 days. In that case, they have another 60 days to sue after those grounds arise.
The environmentalists argue that they filed their lawsuit in July 2014, within 60 days after an air pollution permit was granted in May 2014 to Energy Answers Arecibo LLC, the company seeking to build the incinerator. The granting of that permit, they argue, "makes this challenge to EPA's rule ripe for review."
Attorneys representing the Obama administration and EPA told the court in a brief that the argument that the court has jurisdiction over the case "based on after-arising grounds is seriously flawed."
Andrew Doyle, a Justice Department attorney representing EPA in court, said today that the attack on the 35-year-old law "is too late." He added that cases will emerge where people argue that they weren't around or didn't have standing when rules were issued, but that "Congress drew lines" about when challengers could bring lawsuits.
Environmentalists argued that in a recent lawsuit involving EPA's greenhouse gas regulations,Coalition for Responsible Regulation v. EPA, opponents of EPA's rules were allowed to challenge regulations beyond the 60-day window.
But in that case, Edwards said, the regulation being challenged had changed. In this case, "if you're not challenging anything more than the regulation" as it was initially promulgated, "you're too late."
Edwards was joined on the panel by Democratic appointee Judge Robert Wilkins and Senior Judge David Sentelle, a Republican appointee.
A decision in the case, Sierra Club de Puerto Rico v. EPA, is likely within the next year.
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EPA Ploughs Ahead With $9.6 Billion Mercury Rule, Despite Supreme Court's Concerns
Jan 14, 2016 | Forbes
By Susan E. Dudley
The Environmental Protection Agency is going through the motions of responding to a Supreme Court order requiring it to consider whether a $9.6 billion annual increase in Americans’ electric bills is “appropriate and necessary” to reduce emissions of hazardous air pollutants. In a perfunctory 18-page notice, EPA proposes to conclude that even after considering costs, its regulations of electric generating units should stand. EPA reaches this conclusion by narrowly defining costs, making generous assumptions about the country’s ability to bear those costs and diverting attention away from the small risk reductions expected.
The Supreme Court Directed EPA to Consider Mercury Rule’s Costs
In June, the Supreme Court concluded that, by ignoring the costs of its Mercury and Air Toxics (MATS) regulation, EPA had violated its statutory authority to regulate when “appropriate and necessary.” Noting that EPA estimated the costs of the rule at $9.6 billion per year, and the benefits from reducing hazardous air pollutants (HAP) at between $4 million and $6 million per year, the majority observed “[o]ne would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”
In response to the Court’s opinion, on December 1, 2015, EPA published a brief supplemental notice that proposes to find “consideration of cost does not alter the agency’s previous conclusion that it is appropriate and necessary to regulate coal- and oil-fired electric utility steam generating units (EGUs) under section 112 of the Clean Air Act.”
EPA’s Response Falls Short
EPA’s response not only fails to adequately respond to the Supreme Court decision, but it fails to meet its own standard for the decision. The supplemental finding emphasizes EPA’s “view that the consideration of cost in the appropriate finding should be weighed against, among other things, the volume of HAP emitted by EGUs and the associated hazards to public health and the environment.”
Despite EPA’s emphasis on the importance of weighing the costs against the anticipated reduction in risks from HAP, EPA does no such thing in the supplemental notice. Its preferred method compares utility sector costs to total power sector sales or capital expenses, and not only appears to have methodological problems that bias the resulting percentages, but fails to address the Court’s directive to balance the harm of the regulation against the good. EPA does not explain why its measures are relevant for determining whether costs are appropriate and necessary and nowhere in Clean Air Act Section 112 nor in EPA’s explanation of its authority under this section are either affordability measures mentioned.EPA grudgingly presents evidence on estimated benefits compared to costs (in keeping with the Court’s direction and EPA’s own emphasis on the importance of weighing costs against health risk reduction), but this calculation is dominated by ancillary benefits that are not subject to its authority under Clean Air Act section 112. In fact, EPA gets 99% of the benefits attributed to the MATS rule by assigning high dollar values to reductions in fine particles, not HAP, emissions. This is particularly troubling because other sections of the Act provide EPA direct authority to regulate fine particles and because direct regulation of a substance is not only a more transparent, but likely a more cost-effective, way to achieve any risk reduction benefits.
Knowing that the benefit Congress sought to achieve through Section 112 represents only 1% of the total benefits EPA claims for the rule, a reasonable observer might question whether the standards are appropriate and necessary. As the Supreme Court observed, EPA valued the benefits of HAP reductions at $4 to $6 million per year, meaning “the costs to power plants were thus between 1,600 and 2,400 times as great as the quantifiable benefits from reduced emissions of hazardous air pollutants.”
The Rule’s High Costs Increase Fatalities
Furthermore, the $9.6 billion cost of the rule itself will have great detrimental effects on public health. Though the cost discussion in the supplemental finding is focused largely on electric utilities’ compliance costs, the incidence of these regulatory costs will ultimately fall on households and individuals who will face higher electric bills. These price increases could have a significant negative impact on the health and welfare of families, particularly those with low incomes. Not only will these increases directly affect the affordability of such essentials as heat and air conditioning, but higher electricity prices will increase the costs of food and other goods, and divert families’ scarce resources away from priorities such as their children’s education or health care.
Statistical research into this wealth-health tradeoff suggests that every $21 million increase in regulatory cost induces one fatality. If true, the high costs of the rule would translate into more than 400 deaths per year.
In contrast, EPA does not predict a single fatality from HAP emissions.
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Time to Focus on Implementation -- Kerry
Jan 14, 2016 | E&E - Climatewire
By Jean Chemnick
With a global agreement on carbon emissions now in place, it's time for countries to deliver the energy investments and policies they promised, Secretary of State John Kerry said yesterday.
Kerry told a military audience at the National Defense University in Washington, D.C., that last month's landmark U.N. climate agreement is only the beginning of the world's response to warming.
"Any agreement only works if it's fully implemented," Kerry said.
More than 180 countries made emissions pledges toward the agreement, which seeks to hold warming to no more than 2 degrees Celsius above preindustrial levels. The question now becomes whether nations can deliver.
"The message of Paris is that the time is now to undertake a permanent transition to a new and low-carbon energy future for the world," Kerry said. "And I can tell you from the evidence that I see, this message is being heard and integrated into policies by prime ministers, governors, mayors all around the world -- by energy corporations and investors, by innovators and entrepreneurs, and by consumers and civil society."
Kerry spent the second week of December in Le Bourget, the airfield outside Paris where the U.N. talks were held, working to craft a deal that would lead to significant reductions but not trigger the Senate's advice-and-consent role. Nearly any agreement would be dead on arrival in the GOP-controlled upper chamber.
The administration believes that the deal parties approved on Dec. 12 meets that test, and the president is widely expected to sign it soon after it opens for signature this April.'The big pivot'
President Obama referred to the agreement in his State of the Union speech, touting the role U.S. policy played in bringing other countries to the table and calling for policies that invest in alternatives "rather than subsidize the past."
But the U.N. deal is as much Kerry's legacy as it is Obama's. The former Senate Foreign Relations Committee chairman led an effort to enact climate change legislation during Obama's first term and has long been a figure in international negotiations.
Kerry told yesterday's audience that he felt renewed momentum after Paris, in part because of its potential to spur the growth of new industries like wind, solar and energy efficiency.
"This is an economic bonanza," he said.
The nexus between energy and climate will be on display this week and next during a pair of international conferences in Abu Dhabi, United Arab Emirates. A handful of experts from the State and Energy departments will attend the International Renewable Energy Agency (IRENA) gathering, which will be followed next week by the World Future Energy Summit.
The IRENA event is the first major gathering since Paris and comes as the world turns its attention to implementation.
Andrew Steer, president of the World Resources Institute, described 2016 as "the big pivot" where leaders go from making promises to keeping them.
"There's a theme for 2016. It's going from commitments ... to action," Steer said. If the Paris agreement is the foundation of large-scale global action on climate change, he added, "we need to pour the cement, we need to act on what's promised."
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IETA's Forrister Discusses Future of U.S. Climate Diplomacy, Carbon Trading
Jan 14, 2016 | E&E TV
On the heels of President Obama's final State of the Union address in which he highlighted climate change as an urgent challenge, what is the future of U.S. climate diplomacy? During today's OnPoint, Dirk Forrister, president and CEO of the International Emissions Trading Association discusses the challenges ahead for global carbon markets and emissions trading. He also explains how a new U.S. president could impact international climate discussions.
Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. With me today is Dirk Forrister, president and CEO of the International Emissions Trading Association. Dirk, always nice to have you here. Thanks for coming on the show.
Dirk Forrister: Thank you, Monica. Great to be back.
Monica Trauzzi: Dirk, on the heels of Paris, President Obama placed a major focus on climate change in his final State of the Union address this week. The White House says that the U.S. is leading the fight against climate change with the most ambitious global climate agreement ever. Is it fair to say that the U.S. is leading on this?
Dirk Forrister: Well, I believe in giving credit where credit's due and in these things I think the U.S. did have a very forceful presence, a very mature, they'd done their homework, they knew where they wanted to go and I think they were a leader, but I don't think they were the only ones because for those of us on the ground, we hadn't seen the kind of leadership out of the host country at quite this level of gravitas before. So having Laurent Fabius chairing these negotiations so effectively made a tremendous difference.
You also have to give the rest of the European Union and China their due credit for it, but I do think the U.S. was the right kind of face for our country in the negotiation.
Monica Trauzzi: In his speech the president laid out a vision for climate and energy. Where do you see that vision going under a Republic administration if a Republican were to win the presidency in November?
Dirk Forrister: Well, so I'm really going to be eager to see how the debate amongst the competing parties plays out in the coming months because I do think the world has changed on this.
This was one thing Obama was right about in his remarks is that we haven't seen this level of consensus in climate change internationally. I think there was only one disgruntled country that was trying to get the floor at the end. Usually there are a handful that are upset about something, but this was a real show of force from the international community.
If a Republican administration completely reverses course, they're going to be out of step with everybody. I don't think that's in the U.S.'s diplomatic interest long term, its security interests long term, certainly its environmental and energy interests long term.
So I personally think it's harder to turn around than some would have you believe, but it all, of course, depends on who that candidate turns out to be.
Monica Trauzzi: So let's talk about the Paris outcome. Looking at what was actually agreed to, would you consider it an overall success?
Dirk Forrister: I would. I think for the era that we're in, a pledge-and-review system, which is what it is, is the right structure to have. It's got a meaningful way to assess progress over time, to increase the ambitions over time and certainly for my organization what we cared about the most was assuming those things were going to fall into place, was there a path forward for business to have the flexibility to make the transition it needs to make in a cost-effective way. That means cross-border trading of emission units for those that are interested.
That piece, it didn't come together until the final hours, but it did come together.
Monica Trauzzi: What was left unclear though? What are the key things that you'll be working on in terms of markets and trading as the agreement is implemented?
Dirk Forrister: Well, so a lot of the magic of markets is in what happens at home in the domestic programs. So to what extent do those domestic programs, be it in Canada or California or Mexico, what do they say about allowing for international transfers, what type of standards do they envision?
All of this needs to plug into an international framework. That piece is going to take a couple years I suspect on what the rules of the road are going to be. We've got a lot more history behind us now on how it can be done, but it basically comes down to clear accounting principles so that imports and exports are not double-counted.
The other is that there will need to be some rules around the international offset mechanism that's been created. It's there, but the rules of how it would operate would still need to be elaborated.
That's going to be an important tool for U.S. companies that operate abroad. Now the U.S. may or may not turn out to be a buyer of those things, but for U.S. industry interests that are active all over the world that's going to be a very, very important component of this agreement, and we need to make sure that it works right. So a lot of work on the details of that.
Monica Trauzzi: The IMF in a new report has called on countries to place a price on carbon. Is that the way to bolster the success of the Paris agreement?
Dirk Forrister: I think it is. IMF, the World Bank have been tremendous in offering a vision of what countries ought to do on this. There have been countries stepping forward to support the call for pricing through the Carbon Pricing Leadership Coalition at the World Bank, something that we've been very supportive of.
I think the countries are there, the CEOs are there, but it's all about the follow-through, which tends to involve a lot of other people in actually implementing the policies. So I do think that's where the action shift. The spotlight has been in Paris. It's going to shift now to Beijing. We're going to see this year what the contours of the national trading program would look like for China. It's supposed to start next year so it's only a year to get some rules in place.
That process is going to be replicated in many other places around the world.
Monica Trauzzi: What do you believe the future of U.S. climate diplomacy is and how have Paris shifted the game?
Dirk Forrister: Well, they sort of have given themselves a regular routine now where they're going to be doing assessments and then they're going to be following those with pledges that are in line with what each country's share ought to be.
So I think we know now that it'll be like 2018 we'll be doing the assessment. In 2020 we'll be looking at what the next round of pledges are going to look like, and that drumbeat will continue far into the future.
I think in terms of the type of agreement and the kinds of cooperation that are envisioned, some of the things have been moved to other forums. So the Green Climate Fund is now one of the central elements looking at climate finance. There's a Climate Technology Centre and Network that focuses on the technology elements.
Now there's going to be a market element at U.N. for those that are interested in use of offsets. So I think some of the expertise moves to those other fora. So in that sense it's a slightly more complex picture that allows for more specialization that I think can be useful.
Monica Trauzzi: You mentioned China earlier. Which countries are you watching most closely to see if they'll be able to stick to the pledges they made in Paris?
Dirk Forrister: Well, I think there'll be many that are focused on the United States because of our track record in the past, but I think this time there's a pretty realistic target that's been proposed. Analysts argue about just how tough it's going to be to meet, but the U.S. is one. I think Canada is one where the initial pledge was by a former government. So there might be more coming from Canada.
I think Australia is also under a spotlight of sorts. It's a key player in the Asia region in offering leadership. It also has new leadership. So maybe there's more to come there.
But then I think it's China and I think it's some of the other leaders in Asia that are going to be important from an emissions vantage point. Indonesia is important. India is important.
So I think all of those. I've got to include Brazil in it because Brazil's also been a major player who's very influential. South Africa. So all of those I think get their fair share of time on the stage to show their opportunity to follow through on what they've committed to do.
Monica Trauzzi: All right, Dirk, we'll be watching. Thank you for coming on the show. Nice to see you.
Dirk Forrister: Thanks Monica.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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What's Next for Golden State's Climate Diplomats?
Jan 14, 2016 | E&E - Energywire
By Debra Kahn
California came to Paris with a mission and left having made a splash.
Now, with 123 cities, states and provinces in tow, California officials are figuring out their next steps for encouraging international climate cooperation after a global agreement that saw California lead the way in carving out a key role for subnational governments.
"When we started this a year ago, my goal was 50 [signatories]", said Aimee Barnes, deputy secretary for border and intergovernmental relations at the California Environmental Protection Agency (Cal EPA), who spearheaded the state's recruitment efforts.
"Then the governor's office said 100," she said. "We surpassed our goals for 2015, so for 2016 I think we'll have to re-evaluate."
The agreement struck in the French capital last month, which included a key section of pledges by subnational governments, was the culmination of more than a year of work by Cal EPA and the state of Baden-Württemberg, Germany, to draw attention to the clout of local leaders.
The idea for the campaign took root at a July 2014 meeting between California Gov. Jerry Brown (D) and Baden-Württemberg Environment Minster Franz Untersteller at the Intersolar conference in San Francisco. That meeting led to the "Under 2 MOU," an agreement that commits the signatories to pursuing an emissions trajectory of 80 to 95 percent below 1990 levels or a target of less than 2 metric tons per person by 2050.
At stake was a potential 2.9 gigatons of emissions, according to the U.N. Environment Programme. The estimated climate contributions of subnational governments and various business-sector agreements, it found in a report, equal about half as much as national governments are expected to reduce their emissions by 2020.'Getting down to brass tacks'
California Environmental Protection Agency Deputy Secretary Aimee Barnes was the state’s top recruiter for a key agreement among regional actors on the sidelines of the global Paris accord. Photo courtesy of Cal EPA.
From just a dozen members at the original signing in May 2015, the group expanded gradually over the course of the year, issuing a steady drumbeat of announcements ahead of the Paris talks. It added 58 signatories during the negotiations, doubling its membership to 123 subnational governments representing more than 720 million people and $19.9 trillion in combined gross domestic product.
U.N. Secretary-General Ban Ki-moon called it the largest-ever commitment from local governments, adding, "It could be a game changer."
The California agreement is the most wide-ranging of 35 voluntary "cooperative initiatives" listed in the Non-State Actor Zone for Climate Action, an effort that came out of a previous U.N. climate conference in Lima, Peru.
But what's next for the group, now that it has successfully drawn attention to the role of subnational governments?
"We'll obviously want to bring additional jurisdictions on board, but also start getting down to brass tacks," said Barnes, who previously worked on climate change policy for the United Arab Emirates. "The focus of our energies will turn a little bit to how can we make this real."
California and Baden-Württemberg have turned over much of the administrative work to the Climate Group, a nonprofit that already runs a similar group with overlapping membership, the States & Regions Alliance.
"It's pretty time- and energy-intensive," Barnes said of the work, which included holding bimonthly conference calls with the signatories. "The Climate Group will hopefully be taking some of that work off our plates. We'll still continue to have a strong hand in guiding the implementation of the agreement."
A Baden-Württemberg climate official also said the states hope to rally other signatories to do the organizing work.Voluntary targets, all carrots and no sticks
"We plan to assemble all Under 2 MOU regions in 2016 to discuss the future work of the initiative," said Ulrich Maurer, head of international cooperation with Baden-Württemberg's Ministry of the Environment, Climate Protection and the Energy Sector. "For the moment, both Baden-Württemberg and California will take the lead in this initiative, but we hope that we can establish a common platform for the future work that will be supported actively by as many regions as possible."
The agreement doesn't actually require that signatories commit to their stated goals. It asks jurisdictions to submit a plan for how they will achieve their targets but does not ultimately require participation.
"Submission of the appendix alongside the letter of intent to sign is strongly preferred; however, consideration will be given to jurisdictions that want to participate but need more time to complete their appendix," the MOU's website says. "In particular, consideration will be given to jurisdictions with capacity building needs that may require support to develop their appendices."
One of the signatories, the Brazilian state of São Paulo, appreciates that exemption. Since 2009, the city had a policy to reduce emissions 20 percent below 2005 levels by 2020, but economic woes have delayed implementation.
São Paulo, which signed the MOU during the Paris talks, is "still in baby steps regarding implementation," said Martina Müller, international adviser for that city's environment department.
"We have a goal of reduction, but we haven't really moved in this direction yet," she said. In Paris, the state announced a voluntary program to encourage businesses to report their greenhouse gas emissions and any steps they are taking to limit them. Being part of the Under 2 MOU could help move the goals forward, she said.Another way forward
Others are further along. The Mexican state of Jalisco, one of the original signatories, has goals to reduce emissions 30 percent by 2030 and 50 percent by 2050, starting from 2010 levels of 5.16 tons of CO2 per capita. It envisions using a carbon market, implementing a "green fund" to finance environmental projects and potentially using the United Nations' REDD (Reducing Emissions from Deforestation and Forest Degradation) program to pay landowners to keep forests intact.
"What the Under 2 MOU has provided to us is a network of experiences and partners on how to be more effective and efficient on our climate actions," said Diego de Leon, Jalisco's director of international affairs.
A side benefit for Jalisco is that it allows the state to cement closer political ties to California, its main trading partner.
"We were close to California, but not in a political way," de Leon said. "We never were able to reach out to the California government, per se. It was the Under 2 MOU that allowed us to have the first meeting between our governor and Governor Brown."
A California observer who was at the Paris talks said the work at the subnational level has made it clear that there is another route forward on climate other than binding international agreements.
"The U.N. can't really solve climate because 195 countries, it's a consensus-based organization, there's just no way you can do it," said Dan Jacobson, legislative director for Environment California. "The best thing that came out of Paris was the recognition that subnationals are really going to lead the way."
Another signatory to the MOU, the Spanish region of Catalonia, agreed.
"[E]ven if the control instruments are legally binding, the emission reduction commitments are not, and there will not be any sanctions established," the spokesman for Catalonia's sustainability department, Carlos Arbolí Padrosa, said of the Paris agreement.
"In this context, it is good news to have gained recognition of the strategic role of the regions -- or 'subnations,' in the United Nations' nomenclature -- in the implementation of climate policies," he said.
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Jan 14, 2016 | Wall Street Journal
By A.J. Kritikos
It’s official: The Environmental Protection Agency has violated federal law by engaging in “covert propaganda” and “grassroots lobbying.” That is the finding of a Dec. 14 report by the Government Accountability Office—though EPA bureaucrats are unrepentant.
The investigation began in June, after Sen. Jim Inhofe (R., Okla.) requested that the GAO review the EPA’s online activities, including its aggressive promotion of the new “waters of the United States” regulatory rule.
Investigators concluded that the EPA illegally used Thunderclap, a social media site, “to correct what it viewed as misinformation.” Government use of social media is not unlawful in itself. But the agency crossed the line by asking supporters to share an EPA-written message on Facebook or Twitter without attributing it to the government. This failure to attribute caused the violation for “covert propaganda.” Simply put, citizens deserve to know when messages presented to them were created by their government.
The violation for “grassroots lobbying” stemmed from an EPA blog post that linked to websites encouraging readers to, for example, “urge your senators to defend Clean Water Act safeguards for critical streams and wetlands.” Federal law prohibits administrative agencies from lobbying the public to support or oppose pending legislation. As the GAO report notes, at least a dozen bills in Congress sought to prevent the EPA’s new waters rule from being implemented.
At bottom, the report concluded that the EPA’s overtly political actions “preclude a good faith characterization” of the facts. Sen. Inhofe has now requested that the GAO review the way that the EPA promoted its Clean Power Plan, which requires states to cut carbon-dioxide emissions from electricity-generating plants.
Executive agencies aren’t supposed to be political. The builders of the administrative state imagined that regulators would be unbiased experts, who would come to objective conclusions about the best policy. That notion has been shown to be woefully naive.
Anyone who doubts that the EPA views itself as a political actor should read its response to the investigations. Liz Purchia, a public affairs official, argued in a blog post that the Thunderclap page was properly labeled, and that the EPA never urged the public to contact lawmakers.
What’s telling is Ms. Purchia’s tone. She wrote that critics are “grasping at anything to distract from and derail our progress.” She attacked “those who question the well-established science behind climate change.” And she assailed “backward-thinkers” who want the EPA to “operate as if we live in the Stone Age.”
Who do we have to blame for this state of affairs? Congress, for one. By passing vague statutes with general goals and authorizing executive agencies to come up with the details, lawmakers have delegated away their exclusive power to make law.
Most of the Supreme Court is complicit. Alone among the sitting justices, Clarence Thomas has suggested a willingness to invalidate these unconstitutional delegations. In a concurring opinion last year, Mr. Thomas wrote that the justices “have too long abrogated our duty to enforce the separation of powers.” He lamented the growth of “a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”
Hear, hear. The questions facing the country don’t lend themselves to objective, expert answers, and choosing what to do with scarce resources always involves trade-offs. The way to take politics out of administrative agencies is simple: Take from them the power to make policy.
Mr. Kritikos, a former clerk for the U.S. Court of Appeals for the Third Circuit, is a lawyer in private practice.
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