Preview Newsletter
ACC AM Jan 27
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(ACC Mentioned) Senator Blunt’s Ads Attempt To ‘Polish’ Record
Jan 26, 2016 | Springfield News-Leader
By MJ Grinstead
All of the print and broadcast ads trying to “polish” Senator Blunt’s record of negative/partisan/divisive political activity are very troubling. In October of 2015, a group identified as One Nation was reported to have spent $800,000 “on a TV and radio blitz supporting the Missouri Republican.” -
Framework for New Prop. 65 Website Approved
Jan 27, 2016 | BNA Daily Environment Report
A regulation establishing the framework for a new online tool to inform the public about exposure to chemicals listed under Proposition 65 that require consumer warnings will take effect April 1, California's Office of Environmental Health Hazard Assessment said Jan. 25. Once launched, the new website will include information on common... -
Study: Nano Cosmetics Risk Assessment Possible
Jan 27, 2016 | BNA Daily Environment Report
Computer-based evaluation of the potential risks posed by nanomaterials used in cosmetics is possible in principle, despite the current lack of data, according to a study the Dutch National Institute for Public Health and the Environment issued Jan. 25. The use of such a computer-based tool could be used by “regulators and manufacturers... -
Data Lacking for Silver Nano Level: NIOSH
Jan 27, 2016 | BNA Daily Environment Report
Currently available research on silver nanomaterials is “too limited” for NIOSH to recommend a new policy on particle-specific exposure risks, the agency said in a review draft. But the draft, released Jan. 22, urges industry to implement measures to mitigate worker exposure to silver metal dust and soluble compounds above the agency's 10... -
CSB Eyes Regulatory Gaps in Texas Fertilizer Explosion
Jan 27, 2016 | BNA Daily Environment Report
By Stephen Lee
Gaps in federal safety laws likely facilitated the 2013 explosion and fire at West Fertilizer in West, Texas, according to a preliminary report released by the U.S. Chemical Safety and Hazard Investigation Board Jan. 25. One key gap was found in the Occupational Safety and Health Administration's explosives and blasting agents... -
Feds Blame Chemical Storage For Deadly Texas Plant Explosion
Jan 26, 2016 | The Hill - E2 Wire
By Devin Henry
Federal investigators looking into a deadly explosion at a fertilizer plant in West, Texas are blaming state and federal regulators for not properly overseeing how chemicals were stored. A U.S. Chemical Safety Board report released Tuesday concluded that there are three main scenarios for the explosion, which killed 150 and injured more than 160... -
Sensor Malfunction Unleashes 4,200 Gallon Diesel Spill
Jan 27, 2016 | BNA Daily Environment Report
Several agencies are cleaning up after a heating oil tank leaked onto the banks and into the Schuylkill River in downtown Philadelphia Jan. 25, the Pennsylvania Department of Environmental Protection (DEP) said. A sensor malfunction on an emergency generator at a CenturyLink facility caused the overflow of about 4,200 gallons... -
The Wreck of Amtrak 188
Jan 26, 2016 | The New York Times Magazine
By Matthew Shaer
From 30th Street Station, the train glided northwest out of Philadelphia, tracing the arc of the freeway. Near the old Schuylkill River Bridge, it jogged right, gathering speed, bound for the New Jersey border. Had you been standing anywhere near the tracks, you would have heard Amtrak 188 before you saw it, in the hum... -
New Colorado Rules Require Drillers to Notify Communities
Jan 27, 2016 | BNA Daily Environment Report
By Tripp Baltz
Following several contentious hearings, Colorado has approved new rules defining when oil and gas operators must involve local communities in siting large drilling facilities near residential areas. The nine-member state Oil and Gas Conservation Commission on Jan. 25 approved the proposed rules, originally Recommendations 17 and 20 of... -
Ted Danson, Kate Walsh Demand Halt To Atlantic Seismic Tests
Jan 27, 2016 | E&E Daily News
By Arianna Skibell
Ted Danson, Kate Walsh and Sam Waterston joined ocean activists and lawmakers last night to urge President Obama to halt the permitting process for seismic surveys in the Atlantic Ocean. The actors helped kick off Oceana's Coastal Voices Summit, which will continue today with lobbying on Capitol Hill. Oceana has waged a campaign against... -
EPA Grants More Time For Input On Drilling NESHAP
Jan 27, 2016 | InsideEPA
EPA is granting oil and gas groups' request to grant more time -- from Jan. 26 to March 11 -- to comment on the agency's recent request for data on hazardous air pollutants (HAPs) from the drilling sector, which is expected to inform potential changes that EPA might propose to its 2012 HAP regulations for the oil and gas industry. -
Canada To Consider Climate Change In Future Pipeline Approvals
Jan 26, 2016 | The Hill - E2 Wire
By Timothy Cama
Canadian officials will consider the impact of fossil fuels on climate change for all future approvals of pipelines and natural gas export terminals. The move by Canada’s new liberal government, led by Prime Minister Justin Trudeau, could delay projects and further erode relations between oil-country provinces and coastal ones... -
More Rules Needed for Methane Reduction Goals: Report
Jan 27, 2016 | BNA Daily Environment Report
By Anthony Adragna
New regulations on methane emissions from existing oil and gas infrastructure are necessary if the Obama administration intends to meet its goal of reducing industry emissions by 40 percent to 45 percent from 2012 levels by 2025, according to a report released Jan. 26 by the Clean Air Task Force. -
Senate To Dive Into Bipartisan Package
Jan 27, 2016 | E&E Daily News
By Geof Koss
After a blizzard-induced delay, the Senate will today open debate on long-awaited broad and bipartisan energy reform legislation backed by Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska). "I don't know about you all, but I spent a good portion of my weekend shoveling," Murkowski said on the Senate floor yesterday. -
States Ask Supreme Court to Review Clean Power Plan Stay
Jan 27, 2016 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court should reverse an appellate court and stay the implementation of the Environmental Protection Agency's Clean Power Plan because the carbon dioxide standards are likely to end up before the high court, 29 states and state agencies argued (West Virginia v. EPA, U.S., docket number unavailable, 1/26/16). -
States Asks High Court to Delay EPA Carbon-Emissions Rule
Jan 26, 2016 | The Wall Street Journal
By Brent Kendall and Amy Harder
A group of 26 states on Tuesday filed a last-ditch request at the Supreme Court seeking the delay of a key Obama administration environmental rule to cut carbon emissions from power plants. The move, which faces long odds, comes days after a U.S. appeals court declined the states’ request to halt the Environmental Protection Agency’s... -
States Ask Supreme Court To Block EPA Carbon Rule
Jan 26, 2016 | PoliticoPro - Whiteboard
By Alex Guillén
Twenty-five states today asked the Supreme Court to block EPA’s Clean Power Plan while lawsuits play out after three lower court judges last week declined to do so. “Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that... -
States Appeal To Supreme Court In Fight Against Obama’s Climate Rule
Jan 26, 2016 | The Hill - E2 Wire
By Timothy Cama
Twenty-six states are asking the Supreme Court to block the Obama administration’s landmark climate change rule for power plants. The states, led by West Virginia and Texas, say a lower appeals court was wrong last week to reject their plea to hold the regulation off while the federal court system decides whether it is legal. -
Supply Chain Thwarts Coca-Cola, Goldman Sachs Climate Action
Jan 27, 2016 | BNA Daily Environment Report
By Jessica Shankleman
Goldman Sachs Group Inc., Coca-Cola Co. and 73 other companies that together buy more than $2 trillion of goods and services are unprepared for climate shocks because suppliers are ignoring requests for data on their exposure to rising temperatures and climate regulation. -
Environmental Group Gives 54 California Lawmakers High Marks
Jan 27, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Environmental justice advocates gave 54 California lawmakers high marks for supporting legislative actions in 2015 addressing environmental and social justice in low-income areas and communities of color. The latest annual legislative scorecard from the California Environmental Justice Alliance, released Jan. 25, focused on voting...
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(ACC Mentioned) Senator Blunt’s Ads Attempt To ‘Polish’ Record
Jan 26, 2016 | Springfield News-Leader
By MJ Grinstead
All of the print and broadcast ads trying to “polish” Senator Blunt’s record of negative/partisan/divisive political activity are very troubling.
In October of 2015, a group identified as One Nation was reported to have spent $800,000 “on a TV and radio blitz supporting the Missouri Republican.” (N-L, 10-20-15, “GOP group launches ad blitz”) This is a non-profit group affiliated with American Crossroads, so it does not have to disclose contributors.
Since the ad touted Senator Blunt’s support of veterans, does this group have a mission to help veterans? As a non-profit, what percentage of their contributions actually supports veteran causes?
On December 21, 2015, there was a full page ad in the News-Leader sponsored by AIM , Alzheimer’s Impact Movement. A look at AIM’s website gave no clue as to what this PAC does to promote Alzheimer’s research, support patients or educate families. On opensecrets.org, there is a list of large ($200+) donors to this PAC and they were ALL from outside of the State of Missouri! Why should any Missourian take this group’s word for declaring Senator Blunt’s “leadership” in working for a cure for Alzheimer’s?
Now we are being bombarded with ads paid for by the American Chemistry Council. What is the ACC trying to accomplish by buying all this air time with all the tired/pandering/repeated catch phrases? Senator Blunt has spent the last FIVE years spouting “repeal and replace” over and over again, but has yet to do anything to fulfill the “replace” part of that promise. How is that “working to break partisan gridlock?”
Millions of dollars worth of ad blitzing by secretive/shady/anonymous/lobbying groups leaves lots of questions. (See N-L, 12-20-2015, “Blunt Family Ties Facing Scrutiny.”) Do we really want our Missouri Senator to be one backed by big Washington PACs and out of state influence peddlers?
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Framework for New Prop. 65 Website Approved
Jan 27, 2016 | BNA Daily Environment Report
A regulation establishing the framework for a new online tool to inform the public about exposure to chemicals listed under Proposition 65 that require consumer warnings will take effect April 1, California's Office of Environmental Health Hazard Assessment said Jan. 25. Once launched, the new website will include information on common exposure routes or pathways to exposure, options for reducing or avoiding exposure and links to other websites to learn more about listed chemicals. Approved by the state Office of Administrative Law Jan. 19, the new regulation (Article 2, Section 25205) is part of a broader effort to update and improve the warnings requirements of the landmark right to know law, officially called the Safe Drinking Water and Toxic Enforcement Act of 1986. OEHHA is currently reviewing comments submitted on its full proposal to update Proposition 65 warning regulations, OEHHA spokesman Sam Delson told Bloomberg BNA Jan. 26 (08 DEN B-18, 1/13/16). Under the law, businesses must include labels or signs whenever exposing the public to unsafe levels of a chemical the state has linked to cancer, birth defects or reproductive harm. A copy of OEHHA's regulation for the website is available at http://src.bna.com/cdX.
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Study: Nano Cosmetics Risk Assessment Possible
Jan 27, 2016 | BNA Daily Environment Report
Computer-based evaluation of the potential risks posed by nanomaterials used in cosmetics is possible in principle, despite the current lack of data, according to a study the Dutch National Institute for Public Health and the Environment issued Jan. 25. The use of such a computer-based tool could be used by “regulators and manufacturers for a fast evaluation” of the risks of nanomaterial cosmetic ingredients, the study said. Such a tool would produce risk assessments based on a characterization of the nanomaterial, exposure estimates and hazard data, the study added. There is still a lack of data on nanomaterials, however. Default values may have to be applied for exposure to nanomaterials and a “qualification score” would have to be included in the tool to account for doubts about the reliability of hazard data, the study said. Risk assessment of nanomaterials in cosmetics is still at an early stage. In the European Union, the EU Scientific Committee on Consumer Safety, which is responsible for cosmetic ingredient assessments, has finalized only a limited number of opinions on nanomaterials. The committee's most recent adopted opinion on a nanomaterial—on nano silica—concluded that the data was insufficient to draw any firm conclusion. The Dutch study on a tool for assessment of nanomaterials in cosmetics is available at http://bit.ly/1WMLd7P.
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Data Lacking for Silver Nano Level: NIOSH
Jan 27, 2016 | BNA Daily Environment Report
Currently available research on silver nanomaterials is “too limited” for NIOSH to recommend a new policy on particle-specific exposure risks, the agency said in a review draft. But the draft, released Jan. 22, urges industry to implement measures to mitigate worker exposure to silver metal dust and soluble compounds above the agency's 10 micrograms per cubic meter recommended exposure level. NIOSH recommends industry increase hazard assessment and substitute silver nanomaterials with less-harmful substances, among a long list of other recommendations. The draft also advises workers to sanitize their work sites and ensure personal protective equipment is used properly. The agency authors point to several silver nanomaterial research gaps, as well. Exposure to silver nanomaterials can lead to argyria and argyrosis. Silver nanomaterials are used in an “increasing number of medical and consumer products, such as electronics or coating in textiles,” said the draft. Public comments are due on March 21, and NIOSH will convene a stakeholder meeting March 23. “The comments will be reviewed and addressed as applicable in the final version of the document. NIOSH will also be conducting a peer and stakeholder review of the document,” said NIOSH spokeswoman Nura Sadeghpour in a Jan. 26 statement to Bloomberg BNA. “When NIOSH publishes a document it becomes NIOSH's position on a topic.”
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CSB Eyes Regulatory Gaps in Texas Fertilizer Explosion
Jan 27, 2016 | BNA Daily Environment Report
By Stephen Lee
Gaps in federal safety laws likely facilitated the 2013 explosion and fire at West Fertilizer in West, Texas, according to a preliminary report released by the U.S. Chemical Safety and Hazard Investigation Board Jan. 25.
One key gap was found in the Occupational Safety and Health Administration's explosives and blasting agents standard, which allows companies to store ammonium nitrate (AN) in wooden bins, provided the bins are protected against the impregnation of ammonium nitrate.
However, the rule isn't specific enough—for example, it doesn't define the word “impregnation”—leaving users “to decide appropriate safety measures without proper instruction,” the CSB said.
Moreover, wooden bins aren't recommended in other countries, according to the report.
West Fertilizer stored its AN in three plywood bins, although they hadn't been treated with coated or clad materials. The CSB found that “such construction likely facilitated the fire's spread between storage bins.”
Twelve emergency responders and three members of the public died when a stockpile of AN detonated at West's facility on April 17, 2013. Local hospitals treated 260 patients following the blast, and nearby buildings were flattened.
Retail Exemption at Fault
The report also noted that, at the time of the incident, West qualified under OSHA's “retail exemption” in the process safety management (PSM) standard, meaning the company didn't have to comply with the rule because more than half of its income was derived from sales to direct end users.
Had the PSM rule applied to West, the company would have had to conduct a process hazard analysis that, among other things, would have identified the close proximity of the facility's AN storage warehouse and its anhydrous ammonia storage tanks. That knowledge, in turn, theoretically would have led the company to implement additional safeguards, the CSB said.
The 2013 explosion damaged West's anhydrous ammonia tanks, the CSB said. Had more force been applied to the tanks, the ammonia could have been released into the community.
OSHA won't cite storage facilities for failing to comply with its recent reinterpretation of a process safety management retail exemption through Sept. 30, 2016, the agency said in a Dec. 23 memo. That directive follows passage of legislative language, embedded in the fiscal year 2016 appropriations omnibus, to delay implementation of the reinterpretation until OSHA completes traditional rulemaking procedures on the change .
Emphasis Program Needed?
The report further called on OSHA to launch a regional emphasis program in parts of the country where fertilizer storage facilities are common. Such a program would include a certain number of annual inspections per year, the CSB said.
The precise cause of the explosion may never be known because AN behaves so unpredictably, according to the 262-page report, which CSB members will vote on at a public meeting in Waco, Texas, on Jan. 28.
However, the report did identify two probable contributing factors: the contamination of the AN with materials that served as fuel and the nature of the heat buildup and ventilation of the storage space. The report also contains three specific scenarios describing how the detonation may have happened.
Gaps Leading to Deaths
Several gaps may have also contributed to the 12 emergency responders' deaths, the report concluded. The personnel didn't establish an effective incident command system, hadn't been adequately trained in the handling of hazardous materials, didn't know enough about the hazards of ammonium nitrate and lacked situational awareness on the scene, according to the report.
To make matters worse, much of the technical information about AN that was available to the firefighters was “limited and conflicting,” the report said.
At the time of the blast, West held between 40 to 60 tons of AN on site. Some 30 tons detonated. Nearly half of the 80 facilities across Texas storing more than 5 tons of AN are located within half a mile of a school, hospital or nursing home, the CSB said.
Recommendations
The board's report also contained recommendations calling on OSHA to either add fertilizer-grade AN to the PSM rule's list of highly hazardous chemicals, toxics and reactives, or to revise its explosives and blasting agents standard to prohibit the use of combustible materials for AN facilities and bins and also to require automatic fire sprinkler systems for indoor AN storage areas.
Other recommendations went to the Environmental Protection Agency, the Federal Emergency Management Agency and various Texas state agencies.
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Feds Blame Chemical Storage For Deadly Texas Plant Explosion
Jan 26, 2016 | The Hill - E2 Wire
By Devin Henry
Federal investigators looking into a deadly explosion at a fertilizer plant in West, Texas are blaming state and federal regulators for not properly overseeing how chemicals were stored.
A U.S. Chemical Safety Board report released Tuesday concluded that there are three main scenarios for the explosion, which killed 150 and injured more than 160 in 2013.The report focused heavily on how the plant was storing its ammonium nitrate, CBS Dallas reported Tuesday. The study also blamed the heat, pressure and debris from a fire for helping cause the explosion.
The study also faulted the facility's insurance company with failing to conduct a proper safety inspection of the plant. There were “shortcomings” in the emergency response to the incident, the study said, including for the volunteer firefighters who responded to the fire.
The study recommended policy changes for a dozen different agencies — including the Environmental Protection Agency, Occupational Safety and Health Administration and the Texas Department of Insurance and Commission on Fire Protection — including instructions to write new standards and institute new training regimes for dealing with ammonium nitrate.
The Chemical Safety Board will hold a meeting in Waco, Texas this week to discuss the report.
The West Fertilizer Co.’s storage and distribution facility in West, Texas caught fire and exploded on April 17, 2013. Later that year, President Obama issued an executive order to insure better federal coordination in response to other potential incidents.
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Sensor Malfunction Unleashes 4,200 Gallon Diesel Spill
Jan 27, 2016 | BNA Daily Environment Report
Several agencies are cleaning up after a heating oil tank leaked onto the banks and into the Schuylkill River in downtown Philadelphia Jan. 25, the Pennsylvania Department of Environmental Protection (DEP) said. A sensor malfunction on an emergency generator at a CenturyLink facility caused the overflow of about 4,200 gallons of diesel fuel, according to the U.S. Coast Guard. Authorities said up to 250 gallons of red dye fuel spilled into the river, where it was encased in ice along a several block stretch. There was no oil sheen on the open water and much of the oil was trapped by heavy snow, the DEP said. The U.S. Environmental Protection Agency, the U.S. Coast Guard, the DEP and a number of city agencies were involved in cleaning up the spill using vacuum trucks and absorbent materials. -
Jan 26, 2016 | The New York Times Magazine
By Matthew Shaer
From 30th Street Station, the train glided northwest out of Philadelphia, tracing the arc of the freeway. Near the old Schuylkill River Bridge, it jogged right, gathering speed, bound for the New Jersey border. Had you been standing anywhere near the tracks, you would have heard Amtrak 188 before you saw it, in the hum of the rail bed and the metallic shiver of the electricity in the overhead catenary wires. And then you would have felt it, in the vibration of the earth: the combined weight of a 98-ton locomotive and seven 50-ton cars, carrying a total of 258 people, eight of them employees.
At the head end of 188, swaddled in a cushioned chair stitched with the Amtrak insignia, the 32-year-old engineer, Brandon Bostian, watched the apartment houses of North Philadelphia bleed into view, his boots resting on the corrugated metal floor. Around him, in a tight semicircle, were a series of square screens that displayed speed, brake-pipe pressure and the feed from the rear-facing video cameras. With his left hand, he slid forward a red-handled lever — the master controller — to send a surge of electricity from the catenary system to the traction motors that gripped the rails.
The locomotive under Bostian’s command that night — May 12, 2015 — was an ACS-64 Cities Sprinter, the most advanced engine in the Amtrak fleet. A modification of a machine long used in Europe, the ACS-64 is rated by its manufacturer, Siemens, at 8,600 horsepower, burly enough to haul seven fully loaded coaches at speeds of up to 125 miles per hour. But in the cab of 188, walled off from the outside world by two panes of reinforced glass, the loudest sounds would have been the burp of the radio and the intermittent whine of the alerter, which triggers if an engineer takes his hands off the controls for more than a few seconds, shutting off only once the round red “acknowledge” button on the dashboard has been depressed. Photo Amtrak 188 the day after the derailment.
At around 9:16 p.m., the train crossed the intersection at North 22nd Street. In Reyburn Park, the fluorescent lights gleamed. The skies above were clear, with the temperature hovering at 82 degrees. A westerly wind gusted gently at 20 m.p.h., flattening the trackside weeds. Bostian was less than a mile from North Philadelphia Station, where 188 did not stop, and roughly three miles and three minutes from Frankford Junction, one of the sharpest curves on the Northeast Corridor. The last thing Bostian says he remembers, according to his lawyer, was ringing the in-cab bell as he passed the station house, headed toward the junction.
In the days and weeks and months to come, every part of his northbound journey would be dissected by law enforcement, by the news media, by the public. It would be said, correctly, that the wreck of Amtrak 188 was the worst kind of anomaly — that train travel was safer than many other forms of travel, cars included, and that Amtrak’s safety record was sterling. (This, too, is accurate: From 2000 to 2014, accidents on Amtrak routes dropped to 1.7 accidents per million passenger-miles from 4.1.) Bostian’s personal life would be picked apart, his state of mind questioned. Theories would be floated and discredited: that there was some sort of mechanical problem with the locomotive, or the track, or the signals (none of the above). That Bostian was on his phone at the time of the accident (he was not). That he was using drugs or drinking (his blood was clean).
Finally, investigators would turn their focus on the section of track between North Philadelphia Station and Frankford Junction. Three miles of train travel: the distance it took for an otherwise unremarkable trip, overseen by an engineer known for his prudence, to go violently, impossibly wrong.
There seems never to have been a time when Brandon Bostian did not dream of a career on the railroad. Growing up in suburban Tennessee, a shy and slightly gawky introvert, he papered the walls of his bedroom with pictures of locomotives and made regular pilgrimages to Central Station in Memphis. There, in the evenings, he would observe the arrival of the City of New Orleans, an overnighter immortalized in the 1971 folk song of the same name (“Mothers with their babes asleep rocking to the gentle beat/And the rhythm of the rails is all they feel”). “When you heard the name Brandon Bostian, the first thing you would think is trains,” one friend told The Times.
Most kids outgrow their love of trains. Bostian never did. At the University of Missouri, he studied journalism and business and attended a nondenominational Christian church called the Rock. Openly gay later in life, Bostian dated women in college. “He was never exactly the life of the party,” a fellow Rock parishioner told me. “It took some time to get to know him. Once you did, you saw how truly kind he was, and how smart.” And yet the railroad was never far from Bostian’s mind. A college roommate remembers him holed up in his dorm room, playing train simulators on the computer. He amassed books on trains, small metal models of them. During his senior year, he landed a part-time gig as a brakeman with a regional railway and then later a conductor with Amtrak, and by 2010, he had migrated out to the Bay Area to work as a contract engineer for Caltrain, the local commuter-rail line.
To a remarkable extent, Bostian’s weeks were structured around the railroad. He spent his workdays in the cab and his evenings online on train message boards and forums, gossiping with other professionals and analyzing recent accidents. “I think it’s all about taking the safest action,” he wrote at one point in 2009, in reference to a crash he viewed as preventable. A fellow engineer told me recently, “That kind of devotion is unusual.” He continued, “For a lot of people this is a job. Clock in, clock out. For [Bostian], it was more.”
In 2012, Bostian relocated again, this time to New York, where he had been accepted for training on the Northeast Corridor. He found an apartment in Forest Hills, Queens, a subway ride from Penn Station. Bostian spent several weeks riding shotgun with a veteran railroader, memorizing the hundreds of signal boxes, stops and junctions that line the corridor. Later, he took — and easily passed — the oral and written tests that certified him as a Northeast Corridor engineer.
Bostian was thrilled, colleagues recalled. Working in the sleepy Midwest or California might have fulfilled his childhood aspirations, but the Northeast Corridor, which connects Boston to New York and New York to Philadelphia and Washington, was where the action was. “My impression was that he had become who he always set out to be — in charge of the head end of a train on a major railroad,” one colleague says. “And having come that far, he wasn’t going to be distracted by anything.”
If elsewhere in the country train travel was increasingly an afterthought, here ridership was actually climbing, hitting its highest-ever level in 2014. The Brookings Institution has calculated that since Amtrak was cobbled together in 1970, out of track bought from a range of troubled rail companies, the company as a whole has been losing millions of dollars a year. By comparison, the Northeast Corridor, if spun off as an independent entity, would immediately be profitable.And for very good reason: Of the 21,300 miles of rail operated by Amtrak, no other 225 are nearly as busy. The Northeast Corridor hosts not only Amtrak coaches and high-speed trains but also long freighters and smaller commuter trains (the Southeastern Pennsylvania Transportation Authority, or Septa, and New Jersey Transit trains). Volume is always heavy, with trains forever being diverted from one track to the next to accommodate faster or slower traffic. And no matter how quickly Amtrak dispatches maintenance crews, it is perpetually playing catch-up — the hard-used rails and switches require regular refurbishing. Engineers must be on the lookout not just for pedestrian trespassers on the rails, and errant cars and school buses and trucks at busy road crossings, but also for orange-jacketed work crews.
Finally, there is the challenge of the route itself, which juts and weaves and doglegs with exhausting regularity. Elsewhere in the country, long-haul engineers might be able to bring a train up to speed, level the master controller and skate for a hundred miles without making an adjustment. On the Northeast Corridor, even a moment’s inattention can be catastrophic. “It’s start, stop and start again,” Karl Edler, a veteran Northeast Corridor engineer, told me. “You’re constantly on guard; you’re constantly trying to think one step ahead.”
In much of Asia and Europe, engineers are protected by a technology known in the United States as positive train control, or P.T.C. Connected by digital radio waves or GPS signals, P.T.C. transponders in the track maintain constant contact with computers in the cabs of oncoming trains. If the transponders determine a train is traveling too fast, the locomotive’s brakes are triggered automatically. Amtrak has been working on its own in-house version of P.T.C., called the Advanced Civil Speed Enforcement System, or Acses, for almost a decade. But owing to insufficient funding and a row with the F.C.C., which Amtrak said had been slow to approve the use of the requisite radio bandwidth, its actual implementation has been piecemeal. At the time of the accident, large portions of the Northeast Corridor, including Frankford Junction, were not online. Practically speaking, that meant engineers were working with no safety net.
“I’ll describe it to you this way,” says Sarah Feinberg of the Federal Railroad Administration. “If a train is traveling in an area where P.T.C. isn’t in place and working as a backstop, you’ve got a situation where an engineer has to execute everything perfectly every hour, every day, every week. All the time. Because the slightest, smallest lapse can mean disaster.”
The afternoon of May 12 started typically enough for Bostian. The young engineer crossed the concourse at Penn Station and descended a short set of stairs to a warren of rooms under the departures board. Before the original Penn Station was demolished and replaced in the 1960s, all engineers took their orders from the men of the fourth-floor “movement bureau” and its squadron of telegraph machines. Today, the nerve center of Amtrak’s Manhattan operations is subterranean and decidedly more modern: The telegraph machines have been replaced by a bank of gleaming computers, displaying data from up and down the Northeast Corridor.
Bostian, still fairly new to the corridor and recently transferred to the New York-to-Washington run, wasn’t much for small talk or the ribbing through which railroaders leaven the stressful job. He jotted down his name on the sign-in register and went to pick up a stack of daily updates and instructions for his train from the crew room. Among the documents were the General Orders for the entire corridor — timetables, permanent speed requirements — as well as a series of Temporary Speed Restriction Bulletins, or T.S.R.B.s. After a crew briefing led by the conductor, he grabbed his safety glasses and walked down another flight of stairs to his waiting train.
The spring of 2015 was a fractious time for Northeast Corridor engineers. In March, over the objections of the unions, Amtrak had cut the time engineers were allowed between daily runs, from an average of roughly two and a half hours to, in many cases, 90 minutes or less. Amtrak employees foresaw disaster: “Forcing shorter breaks, day after day, between runs increases fatigue-related risk and the potential for loss of focus,” Edler, a member of the Brotherhood of Locomotive Engineers and Trainmen, wrote in an open letter to Amtrak brass.
According to other engineers, Bostian’s “couplet” on May 12 — a run down to Washington and a run back to New York — was one of the routes affected. (Amtrak declined to comment on any changes to Bostian’s schedule but did say that “from time to time, [the company] revisits crew assignments to look for efficiencies, improve crew rest or to reflect changes in train operations.”) The new route had his Acela 2121 arriving at Union Station at 4:53 p.m. and, after a change of trains, pushing off at 7:10 onboard 188’s Cities Sprinter. If all went well, that would leave him roughly two hours in Washington.
But just minutes after the Acela 2121 left New York, Bostian encountered a problem with his “cab signals,” an internal device that automatically displays information about obstacles or other trains ahead. Without a functioning signaling device, Bostian was forced to reduce the top speed on the 2121, his eyes fixed on every wayside signal for indications of trouble ahead. It was an onerous task. He arrived at Union Station half an hour behind schedule. His actual break time — the time he would have to himself, to eat a sandwich or make a phone call — was all but obliterated, and an Amtrak colleague has since described a collective sense that Bostian was “frazzled” on arrival.
At around 6:40 p.m., he made his way to the ACS-64 Cities Sprinter that he would pilot north to New York. He settled into the engineer’s chair and double-checked the equipment: the radio, the video displays, the cab-signals device that failed him on his southbound leg. Everything seemed to be working well. At 7:10, Bostian received permission to depart, and 188 skated out of Union Station on schedule.Like most trains in the Northeast Corridor, 188 had brought together a diverse and varied group of professionals: businessmen alongside consultants alongside graphic designers alongside start-up founders. In Car 3, Seyward Darby leaned her head against the window and watched the rail yards of Union Station flicker past. For the past year and a half, Darby had been commuting regularly between her apartment in Brooklyn and Washington, where she worked as an editor at Foreign Policy magazine. She hoped this would be her last train trip for a while: In June, she and her fiancé, Corey Sobel, a fiction writer, were to be married, and she was taking time off.
Outside, the dusk was gathering; the buildings lining the tracks gave off a cool glow. Darby opened her laptop and transcribed a few lines from a recent interview with the actor Ethan Hawke, who had been in Washington to promote a new movie on drone warfare. Amtrak 188 shuddered through northeast Maryland, stopping at New Carrollton at around 7:22.
As the train pulled away from Baltimore-Washington International Airport, Darby looked up to see a 20-year-old Navy midshipman named Justin Zemser making his way down the aisle, clad in his dress whites. Zemser was from Rockaway Beach, Queens, the only child of Howard Zemser, who worked in printing, and Susan Zemser, an assistant supervisor at an insurance company. When Zemser was a child, his uncle Richard used to kid that he was destined to be the first Jewish president. In high school, it stopped seeming like a joke: Zemser was the valedictorian of his class at Channel View School for Research, a star running back on the football squad and a regular volunteer at the local soup kitchen. After being accepted by Columbia, Cornell and Yale, he enrolled in the United States Naval Academy, and he was now a third class — the equivalent of a sophomore. Zemser was returning home from school, where he had been supporting friends participating in the annual Sea Trials, a rite of passage for plebes, as freshmen are known. The evening of May 12, he sent a text message to his uncle, telling him he would see him soon, and another to his mom. “Ma, don’t forget to put out my dinner,” he wrote.
Now Zemser stopped in front of Darby’s seat. “Is anyone sitting here, ma’am?” he asked. Darby shook her head and smiled. While he was situating himself, Zemser bumped Darby’s shoulder and elbow. He apologized and opened his own laptop. And for an hour or so, Darby and Zemser sat alongside each other like that, companionably and quietly.
Before Darby realized it, they were already in Philadelphia.
At around 9:17 p.m., Amtrak 188 went through North Philadelphia Station, sounding its bell once. The quadruple lights of the locomotive cut a ribbon through the night, past warehouses and overgrown lots. A few of the tire shops on East Erie Avenue were still open; plastic bags fluttered in the sagging concertina wire that lined the tracks.
If the Northeast Corridor is the most arduous route on the entire Amtrak network, then the three-mile stretch between North Philadelphia Station and the exit to Frankford Junction is among its most exacting sections. This is only in part because of the tight curve itself. Visibility here is also questionable (engineers say the trackside lighting is unpredictable), and trespassers are common. In the wake of the derailment of Amtrak 188, a new wrought-metal fence went up near Frankford Junction, but at the time, access to the tracks was as simple as lifting a scrap of chain-link fence. Even today, it’s not hard to reach the tracks if you want to; plenty of holes and gaps remain. A sergeant with the Philadelphia Police Department told me that the rail bed is popular with addicts and dealers. “And let me tell you,” he said, “you couldn’t build a fence high enough to keep them all out.”
All that foot traffic creates serious hazards for train engineers, who must worry not only about hitting pedestrians but also about being hit themselves, with debris or other hurled objects — an event railroaders describe as “getting rocked.” Familiar to engineers across the United States, rockings are especially common in the densely populated urban centers of the Northeast Corridor, where trespassers target trains for sport. It is not unusual, engineers say, to have two or three objects hit you over the course of a couplet. “Everyone in the Northeast has stories about it,” Edler told me. “After a while, the only ones that stand out are the instances where it’s really crazy, like a railroad spike used as a harpoon, or something.” At night, a rocked engineer has no time to prepare. He or she might be watching the track or monitoring the dashboard gauges, and then suddenly — with a pistol-shot crack — the heavy windshield is spiderwebbed or even caved in. Photo Brandon Bostian, Amtrak 188’s engineer, in 2007.
On the evening of May 12, at least two trains were struck by objects near Frankford Junction. One was a southbound Acela, which was reportedly hit at around 9:05 p.m. The other was a Septa train headed to Trenton. The Septa engineer, who called in the incident just minutes before 188 derailed, immediately put out a “hot track” warning, indicating to all oncoming trains that there was dangerous activity in the area.
According to an assistant conductor onboard Amtrak 188, who later spoke to the National Transportation Safety Board, Bostian heard the “hot track” warning and replied that he had been hit by something as well. By then, Bostian would have been opening up the throttle, preparing for the last straightaway before Frankford Junction.
It was a tricky series of maneuvers for even the most experienced engineer: speed up out of North Philadelphia Station; slow for a gradual curve at North Second Street; throttle open again for the straightaway, where the speed limit is 70 m.p.h.; and dump speed for the sharp 50-m.p.h. curve.
Instead, Amtrak 188 continued to accelerate on the straightaway — 90 miles per hour, 95. Near the entrance to the curve, it hit 106 m.p.h., more than twice the posted speed limit. At the last moment, Bostian activated the emergency brake, but it was too late: The 98-ton locomotive and the seven cars and the 250 terrified passengers were now traveling on their own momentum, free from the rails, lurching rightward into the earth and forward into the surrounding darkness.
In Car 3, the derailment was registered in a variety of ways. Josh Gotbaum, a scholar at the Brookings Institution and the former C.E.O. of the September 11th Fund, heard a screeching sound as the traction motors lost their grip. Beth Davidz, then a media technologist with the news site BillyPenn, saw the lights go dim and thought, This is not an ordinary bump. Vallen Graham, a research associate at Rockefeller University, was ejected from his seat and into the seat back in front of him, bruising his ribs.
Seyward Darby was reaching out to brace herself when Car 3, like Car 4 behind it and Car 2 ahead, landed on its right side. She had no time to think about Justin Zemser in the seat next to her — she had no time to think about anything. Without warning, she was airborne, and dirt was entering the coach in a great cloud. Hours later, at the hospital, she would still be scrubbing it from her face. She came to rest on her back, on the right side of the train, which was now the bottom of the train. Above her, she could see the windows that had once faced west. She did a quick inventory: Her limbs seemed to work. She wasn’t bleeding badly.
A few feet away, invisible to Darby in the smoke and dust, Graham was trying to get the other passengers organized. “If you have flashlights on your phone, please turn them on,” he shouted. Graham didn’t know a whole lot about trains, but he did know that trains like 188 ran on electric currents — the last thing anyone needed was to run into a live wire. Graham reached over to help up the passenger closest to him. “My head hurts,” the man said, and he ran a blood-smeared hand across a deep gash on his forehead.
They needed an escape route. The best exit looked to be the left-facing windows. Graham scrambled on top of a pile of broken seats and pulled out one of the panes. As the air turned smoky, Graham and Gotbaum worked together to evacuate as many passengers as they could, with Gotbaum supporting the passengers’ backs or bottoms and Graham hauling them upward from the lip of the window. It was an assembly line: one passenger, two passengers, three passengers — maybe eight in all, Darby among them.
Gotbaum made one more pass through the car, stopping in front of a woman who appeared to have been crushed by a loose seat. She was not moving. One of her legs protruded from the wreckage at a bizarre angle. There was nothing more that Gotbaum could do. The smoke was thickening; visibility was almost nil; his lungs were stinging. He headed for the window.
It is unlikely that even had he known to look for Justin Zemser, Gotbaum would have found him. According to a lawsuit filed by the Zemser family, Justin was launched from the train car as it overturned. His injuries included skull, sternum and spine fractures; cardiac lacerations; and a punctured aorta. A seat over, Darby would emerge with scrapes and bruises. Two bodies in motion, they followed radically different trajectories, governed by physics and maybe fate — Darby landing in a heap inside the train and Zemser ejected from it.
At around 11 p.m., Richard Zemser received a phone call from his brother Howard. Justin had been on the train that derailed in Philadelphia, and Howard hadn’t heard from him. “I thought, Well, maybe his phone is lost,” Richard told me. “But as the hours went by, it was clear to me something was wrong, because Justin was so close with his parents, and he would have found a way to get word home, even if it involved hunkering down and building a radio, like Marconi.”
Worried, Richard phoned a precinct house in Philadelphia. An officer there promised to call Richard if he heard anything. At around 6 a.m., the phone awoke Richard. Emergency medical workers had found Justin’s body, identified by his dress whites and name tag. Richard promised to notify his brother and his sister-in-law, and set down the receiver. Photo An Amtrak train on a stretch of track in North Philadelphia, near the site of a deadly derailment last May.
“I don’t often shed tears,” Richard recalled, “and so I measure my sadness by the size of the lump in my throat. I’m going to tell you right now, ever since I got that phone call, this damn lump has not stopped growing.”
Georgetta Gregory, the head of the N.T.S.B.’s railroad division, grew up in Arkansas, the daughter of a lifelong rail man. In 1974, at 19, she followed in her father’s footsteps and took her first railroad job; at 30, she became a dispatcher at Southern Pacific. There were few other women in the business then, but Gregory had grit and drive. She moved a lot: California, Colorado, then Georgia, where she was employed for three years at Marta, Atlanta’s municipal rail service.
It was in California that she oversaw her first cleanup after a derailment. “One thing you understand immediately is the phenomenal forces that take place during a railroad accident,” she said recently. “This is extremely large equipment, and it’s whipped around like empty matchboxes. I remember not being scared,” she went on, “but more in awe. Like, this is something to be respected.” Trains moved very quickly, she learned, until they didn’t. Unlike a capsized ship taking on water or a goose-struck airliner gliding to earth, trains almost always wrecked with awesome violence, loudly and fast.
Late on the evening of May 12, Gregory got word from an Amtrak contact about a massive derailment in Frankford Junction. It was too late to book a flight from Washington, so she and three investigators car-pooled to the crash site, arriving at the Conrail yard, on the southeast side of Frankford Junction, at 4 in the morning. The air was acrid with smoke, and through the trees, Gregory saw the flicker of the lights from the Philadelphia Fire Department trucks and ambulances. News helicopters thumped above the crash site.
The wreck appeared in segments: It was sprawled over too much ground to take in at once. The locomotive had detached from the rest of the train and shot 50 yards or so in an easterly direction, down a short embankment, before coming to a halt, its wheels mired deep in the wet dirt. Coaches 7, 6 and 5 were still upright. But Cars 4, 3 and 2 were overturned, and Car 1 — the business-class car — was so bent and crumpled as to be unrecognizable as a car at all.
In the harsh glare of the temporary light fixtures, hundreds of emergency medical workers were at work, escorting those who could walk to waiting police and E.M.T. vehicles and helping to carry those who could not. By dawn, hundreds of survivors were safe in local hospitals, and a grimmer phase of the recovery was underway. The names of the dead scrolled down TV screens across the country: Laura Finamore, Jim Gaines, Abid Gilani, Derrick Griffith, Rachel Jacobs, Giuseppe Piras. A day later, cadaver dogs found the remains of Robert Gildersleeve, a 45-year-old Maryland businessman, in the business-class car.N.T.S.B. rail investigators are trained to minimize the amount of time they need on scene, so the process of debris removal and track repair can begin as quickly as possible — every day that a company can’t run trains on that track is considered to be a day squandered. Gregory and her team set about taking measurements of the cars and their trajectories and red-tagging any evidence, which would be transported to N.T.S.B. or Amtrak facilities for cataloging and three-dimensional scanning.
“It’s important to move fast, but it’s important to do some of the interviews, with the crew and passengers, when it’s fresh in their minds,” Gregory said. “And above all, you want to make sure you’ve got all the evidence that you’re going to need, that there’s nothing you’ve overlooked.”
After four days in Philadelphia, she returned to Washington, where the second — and more difficult — part of the investigation would begin.
Amtrak 188 was not the deadliest crash in company history: In 1993, 47 people died when the Miami-bound Sunset Limited careened off a bridge spanning a tributary of the Mobile River in Alabama. But that accident was quickly attributed to a barge strike that had misaligned the tracks. Most rail wrecks are that way: The cause is either obvious to investigators from the get-go or becomes obvious over the course of weeks — a collision with another train, a malfunctioning engine, a car stuck on the tracks. The fate of 188, by contrast, appeared to be a genuine mystery. There was no obvious cause, no readily apparent smoking gun.
At N.T.S.B. headquarters, a team of close to 20 investigators was convened. They broke into working groups, each of which was assigned an area to examine based on the expertise of its members, typically former railroad engineers or technicians. Over the next few weeks and months, a winnowing process occurred. Faulty signal boxes were dismissed as a possible contributing factor, as were track anomalies and major problems with the locomotive: Data from the black box showed the engine was working perfectly well right up to the moment of derailment.
Computer glitches have also been ruled out. On train message boards of the kind Bostian once frequented, some contributors linked to a report, published on the website of Trains magazine, concerning possible “screen freezes” on the ACS-64’s digital displays. Amtrak has said in a statement that it looked into the issue and found “no further reports of this occurring.”
Similarly, there was no collision with a train or an errant car or truck — 188 was definitely the only vehicle on the rails at Frankford Junction at 9:21 p.m. And although Bostian incurred a leg injury and a head wound requiring staples, his overall heath was good. He consented to a blood test that proved he did not have drugs or alcohol in his system, and he gave the N.T.S.B. investigators his smartphone and permission to look over his phone records. Bostian seemed far too conscientious to have deliberately taken his attention from the controls — no one I spoke to, official or colleague, would give any credence to the proposition that the accident was intentional.
Last summer, in the second month of the inquiry, I visited Robert Hall, the N.T.S.B.’s director of railroad, pipeline and hazardous-material investigations, at his office in Washington’s L’Enfant Plaza. Hall, who was wearing a tie depicting a scene from the Bayeux Tapestry, looked fatigued — the N.T.S.B. had recently announced there was no evidence that Bostian had used his phone directly before 188 wrecked. This announcement hurled the accident, and with it Hall’s team, straight back into the center of the news cycle. (The N.T.S.B. did find that Bostian dialed 911 on his phone after the crash.)
“We’ll get to the bottom of it,” Hall said, yanking at his tie. “Because, look, I don’t subscribe to acts of God. In any system, you’ve got humans making decisions, and those decisions have implications. I suppose you could decide not to design for something, and that omission ends up being the cause. Either way,” he continued, “human error is involved.”
In the first week of February, the N.T.S.B. will release the “docket” from the 188 investigation — a voluminous preliminary report comprising raw data from the train’s black box, imagery from the site and notes from investigators. Its ruling on the probable cause of the accident will most likely come this spring. Until then, the N.T.S.B. has declined to discuss its findings publicly. Still, in discussions with a range of rail officials — many of whom, citing the N.T.S.B. inquiry, declined to speak on the record — it appears clear that in the eyes of the N.T.S.B., the key to the wreck is something investigators call “lost situational awareness.”
There are two main schools of thought on what may have caused Bostian to lose his bearings. The first takes into account the rockings in the vicinity and Bostian’s own reported account of his train being struck by a large object, his forehead wounds and a small pocked dent on the left side of the windshield — a dent of the kind typically produced by a rock. “To me, it’s pretty clear what happened,” Richard Beall, the longtime accident investigator, told me. “Bostian’s got the throttle open to get the train up to speed. A projectile hits the windshield. Now the windshields on these locomotives are thick, but that impact is going to be out of nowhere and scary. As a human, you’ve got a tendency to duck. But he ducks into the dashboard and smacks his head, knocks himself out. And by the time he’s back up, and he’s reoriented himself, it’s: ‘Oh, crap.’ ”
Of course, other engineers, struck by projectiles in exactly the same place on the Northeast Corridor, managed to keep their trains from overturning — a point that Beall willingly concedes. “It happens, it’s violent and terrifying, but you move on,” he told me. Which brings up the second, and not mutually exclusive, possibility. This situation takes place in the same time frame but has Bostian lost, confusing Frankford Junction with the curve before it and realizing his mistake only at the last moment. Several people involved in the investigation offered the analogy of a driver on a long and darkened freeway, mesmerized by the unending roll of asphalt. A kind of hypnosis takes over. The driver, fatigued, looks up to see his exit, but it’s already starting to pass, and the car swerves off the road at a dangerous speed. If Bostian had been rocked earlier in the trip, they said, this might have only added to his confusion, putting him on edge.
It’s easy to see: a rattled young engineer finishing the second leg of a frustrating couplet, aboard a racehorse of a high-powered locomotive he was still growing accustomed to. A notoriously tricky piece of track. And a moment of distraction at precisely the worst time.
Perhaps the most tragic aspect of the wreck of 188 is that it could have been avoided, or at least mitigated, had the right safeguard — positive train control — been in place. Renewed pressure has been brought to bear on the industry by P.T.C. advocates like Robert Sumwalt of the N.T.S.B. and Sarah Feinberg of the Federal Railroad Administration. (The agencies have been pushing for the technology for decades.) “My hope,” Feinberg told me recently, “is that the derailment was our long-overdue wake-up call that we need P.T.C. — that we owe it to passengers and rail staff to have it online.”
In late May, Joseph Boardman, Amtrak’s C.E.O. and president, promised that the installation of P.T.C. on the Northeast Corridor would be completed by the end of 2015, a pledge he has kept: Today, the system is active on all routes, with the exception of substantial stretches of track owned by the State of Connecticut. (A spokesman for the Connecticut Department of Transportation said it hoped to have P.T.C. installed on all state-owned track by 2018.)
It will be some time before a national rollout is complete. In November, President Obama signed into law an extension to the Rail Safety Improvement Act of 2008, giving railroad companies — which had complained about the cost of implementation — until 2020 to bring the technology online. On sections of rail not protected by P.T.C., “there is absolutely nothing to prevent what happened to Amtrak 188 from happening again,” Richard Beall told me. “Nothing.”
For many survivors of the accident, and for the families of the dead, the public discussion about safety technology has come too late. “I spend my days thinking about how this could have happened,” Howard Zemser told me when I spoke to him by phone earlier this year. “But look, Justin was never lost like other young men are — he had this incredible focus. He didn’t need to count on other people. He counted on himself and his own strength. He would want us to do the same thing.”
In September, Howard and Susan filed their lawsuit against Amtrak, asking for a jury trial and claiming that the company’s “negligent, careless, reckless” actions led to Justin’s death. They are not alone: Dozens of other families and individuals, including the conductor onboard 188, Emilio Fonseca, are suing Amtrak, which said in July that it will not fight claims for compensatory damages. (Congress has capped the amount of money Amtrak can pay out in any single accident at $295 million.)
Survivors, meanwhile, are relying on time to help the memory of the crash fade. Last June, Seyward Darby and Corey Sobel were married in an outdoor ceremony. “I’m so happy to be alive and here with you,” Darby said in her vows. On a recent trip to Europe, she rode a train again for the first time. But reminders of the crash are everywhere. Before the wedding, a large cardboard box arrived at Darby and Sobel’s apartment in Park Slope. Inside was Darby’s computer bag, which was recovered from the wreckage at Frankford Junction. “When I ripped the tape off and opened the flaps, the smell was immediately recognizable and upsetting,” Darby told me. “Like dirt, and metal, everything the train had smelled like after we derailed.” She stuffed the bag into the back of her closet and hasn’t used it since.
Investigators have zeroed in on the cause of the accident, but they may never fully comprehend Bostian’s state of mind on May 12. This is the last real mystery of the wreck of Amtrak 188 — a mystery only Bostian can help solve. And for now, he isn’t talking publicly: He did not answer multiple requests for comment, by phone and by email. He remains on unpaid administrative leave as he prepares for the year ahead.
If the N.T.S.B. finds him directly responsible for the derailment, he could be hit with criminal charges ranging from reckless endangerment to manslaughter. There is precedent: In the late 1980s, a Conrail engineer pleaded guilty to “recklessly causing the deaths of 16 people” after he ran a signal and collided with an Amtrak coach headed to Philadelphia.
Even if Bostian is wholly cleared by the N.T.S.B. and found not to have been negligent in his actions on May 12, it is very unlikely he’ll ever pilot a train again. This alone would be harsh punishment for a man who grew up wanting to do nothing else. His role in the accident — and the inaction that could have prevented it — continue to haunt those who know him best. “When I heard about the accident,” a college friend of Bostian’s told me, “my first thought was, I wish Brandon was driving that train, because it never would have crashed.”
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New Colorado Rules Require Drillers to Notify Communities
Jan 27, 2016 | BNA Daily Environment Report
By Tripp Baltz
Following several contentious hearings, Colorado has approved new rules defining when oil and gas operators must involve local communities in siting large drilling facilities near residential areas.
The nine-member state Oil and Gas Conservation Commission on Jan. 25 approved the proposed rules, originally Recommendations 17 and 20 of a special task force established by Gov. John Hickenlooper (D) to address conflicts over state and local regulation of oil and gas operations. The rules address how and when local governments must be consulted regarding energy development in urban areas, and they describe new mitigation measures and best management practices at drilling sites with the goal of reducing potential impacts of oil and gas activity.
But the end of the rulemaking process did not assuage local government concerns about the extent of their regulatory control over drilling operations, and several environmental groups and community advocacy organizations say they will support proposed ballot measures to increase or expand community controls. Meanwhile, representatives of the oil and gas industry also say they are displeased with the new rules.
Rules ‘Problematic.'
Portions of the new rules “remain problematic, unsupported by reasonable or technical basis, and unclear as to the intent and purpose,” Dan Haley, president and chief executive officer of the Colorado Oil and Gas Association, a leading industry advocacy group in the state, said in a Jan. 25 statement.
Perhaps the most divisive element of the rulemaking proceeding, which sprawled across stakeholder and commission meetings starting in October, was the issue of defining how large an oil and gas facility must be to trigger the local government engagement requirements of the new rule. The final commission vote on a motion to define “large” facility as one having either eight or more new wells or 4,000 barrels of new or existing storage was 5-4.
Another controversial provision of the rule is the requirement that operators file notice for a large facility in an urban mitigation area before reaching a final decision on the location of the facility with the surface owner. Commission rules define an urban mitigation area as one where 22 buildings, or one high occupancy building, such as a school or hospital, are located within a 1,000-foot radius of a drilling facility.
Consultation Process
As approved by the governor's task force in February 2015, Recommendation No. 17 outlined a consultation process to facilitate a dialogue between operators and local governments when an operator proposes to locate a large oil and gas facility in an urban mitigation area. Recommendation No. 20 was designed to encourage local governments to integrate future oil and gas development into community planning and operators to consider community planning in proposing future oil and gas development.
When a new oil and gas facility is proposed for an urban mitigation area and when it meets one of the two large facility thresholds in the new rules, the operator must consult with the local municipality or county to discuss the final siting of the facility and certain mitigation measures addressing noise, lighting, traffic, emissions, fire control, and other possible protections to be used at the site, under the new rules.
The state Department of Natural Resources said the rules would require operators to provide earlier notice to local governments and opportunity for local officials to work with operators on the location of large oil and gas facilities adjacent to communities and require additional mitigation measures and best management practices at these locations to address the potential impacts of oil and gas development activities.
Limit ‘Too Low.'
The limit of 4,000 barrels of hydrocarbon storage is too stringent, Haley said. The trigger is “a low metric when horizontal laterals are being utilized in order to truly minimize surface disturbance in many areas.” An industry proposal called for a trigger of 9,600 barrels, enabling operators to concentrate activity on a lower number of wellpads.
Haley said the association continues to urge the commission to provide incentives for oil and gas companies to use “one of the strongest mitigation measures available”—pipeline transportation, which, he said, “unfortunately was not included into the rule.”
Commission Director Matt Lepore said Jan. 25 that COGCC staff supports the idea of more extensive pipeline use at wellpads in the state, in lieu of tanks storing hydrocarbons (16 DEN A-18, 1/26/16).
“We want to push hard in the direction of tankless facilities,” he said.
Haley said the rule also did not include—as sought by industry—a provision exempting all existing surface use agreements between landowners and operators. “This exception is critical to ensuring that the state cannot interfere with private contractual rights,” he said.
Community Groups Frustrated
Several local community groups—including the Western Colorado Congress, Weld Air and Water, and Citizens for a Health Community—issued a statement after the hearing saying they were “frustrated” with the final rules.
“We had hoped that the COGCC would propose meaningful regulations that provided better siting tools to move oil and gas developments as far away as possible from neighborhoods and schools,” said Jacky Kowalsky of Adams County Communities for Drilling Accountability Now. “Instead, these rules are designed to allow more neighborhood drilling with minor conditions of approval.”
The new rules will apply to less than 1 percent of oil and gas locations in Colorado, Matt Sura, a Boulder attorney who served on the governor's task force and who has represented local governments looking to approve drilling controls, told Bloomberg BNA Jan. 26.
Frustration could drive voter turnout in November, when the general election will have a ballot with as many as 12 anti-drilling proposals for increased local government control over oil and gas drilling in addition to outright bans on hydraulic fracturing.
Ballot Solution
“The COGCC has proven unwilling to address the concerns of residential communities throughout Colorado,” he said. “Individuals, communities, and local governments who are looking for common-sense protections for homes and neighborhoods must look to the legislature or to the ballot for much-needed reform.”
The COGCC rulemaking process “created more frustration and anger with a broken system that can't repair itself,” said Sara Barwinski, another task force member. “Colorado needs a real solution—whether through legislative overhaul or ballot measures.”
Others felt the new notice requirements struck a balance between the needs of local governments to consult with oil and gas operators while allowing energy development to continue in Colorado.
The rules “provide meaningful opportunity for operators and local governments to negotiate siting issues early in the permitting process,” said Kirby Wynn, Oil and Gas liaison for Garfield County.
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Ted Danson, Kate Walsh Demand Halt To Atlantic Seismic Tests
Jan 27, 2016 | E&E Daily News
By Arianna Skibell
Ted Danson, Kate Walsh and Sam Waterston joined ocean activists and lawmakers last night to urge President Obama to halt the permitting process for seismic surveys in the Atlantic Ocean.
The actors helped kick off Oceana's Coastal Voices Summit, which will continue today with lobbying on Capitol Hill. Oceana has waged a campaign against the Obama administration's plan to open up the Atlantic to offshore drilling, starting with the seismic surveys that help oil and gas companies find mineral deposits.
The energy at last night's event was celebratory. A screen on the back wall flashed images of protesters and activists from all over the country holding signs that read "protect our coast" and "stop seismic air guns."
"I know this is incredibly serious, but I've got a big grin on my face," Danson, an Oceana board member and actor known for his role as Sam Malone in the sitcom "Cheers," told the crowd. "We're not going to lose this fight."
Jackie Savitz, Oceana's vice president for U.S. oceans and a self-described "ocean nut," said she once asked a high-ranking official why the administration didn't release a similar offshore drilling plan for the Pacific Ocean.
"He said, 'Because the people there don't want it,'" Savitz recounted. "Well, the people in the Southeast don't want it, either!"
Seismic surveys use loud air guns to find mineral deposits underneath the ocean floor. Scientists say the noise could interfere with whale calls and interrupt their breeding.
Opposition has steadily grown in recent months.
Late last year, Reps. Mark Sanford (R-S.C.) and Bobby Scott (D-Va.) sent a letter, signed by 31 colleagues, pressuring the Bureau of Ocean Energy Management to stop issuing seismic survey permits. Seven House Republicans and 26 Democrats signed the letter, calling for a new environmental review of the impact of the surveys (E&ENews PM, Dec. 10, 2015).
Oceana's campaign has focused on building grass-roots opposition, urging local governments to oppose seismic surveys off their shores. So far, according to the group, 102 municipalities, 650 state and local elected officials, 750 businesses and about 100 members of Congress have publicly opposed offshore drilling in the Atlantic.
The mayor of Fernandina Beach, Fla., Johnny Miller, said that as a retired Navy sonar specialist, he knows the importance and danger of noise and will do everything in his power to stop the air guns.
"It's on all of us to keep pushing to make clear we will not sacrifice our coast," he said, wiping away tears.
Walsh, an actress known for her role as Dr. Addison Montgomery on "Grey's Anatomy," applauded Oceana's progress at last night's event.
She spoke about her experience in Santa Barbara. After the oil spill there last year, she said, officials placed buckets filled with baby wipes along the beach. After people walked barefoot in the sand, they needed the wipes to remove oil from their soles.
"I'm so impressed and moved by the grass-roots efforts," Walsh said, noting the organization's persistence. "It's like playing whack-a-mole. Where are they going to put the drill next?"
Sen. Sheldon Whitehouse (D-R.I.) said opening up the Atlantic for offshore drilling was an error, but one that, with effort, can be rectified.
"I think it was a terrible mistake by the administration to be the first administration ever to allow for the prospect of oil drilling in the Atlantic," he said. "I think the process between opening that gate and actually getting drills into the ocean is one that we will win, but it's unfortunate that we have to have this fight."
Oceana officials estimate that along the Atlantic coast, nearly 1.4 million jobs and more than $95 billion in gross domestic product rely on the ocean, mainly through fishing, tourism and recreation. The drilling process, they said, has the potential to destroy those communities' way of life.
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EPA Grants More Time For Input On Drilling NESHAP
Jan 27, 2016 | InsideEPA
EPA is granting oil and gas groups' request to grant more time -- from Jan. 26 to March 11 -- to comment on the agency's recent request for data on hazardous air pollutants (HAPs) from the drilling sector, which is expected to inform potential changes that EPA might propose to its 2012 HAP regulations for the oil and gas industry.
The agency announced the 45-day comment period extension in a Jan. 26 Federal Register notice in response to requests from several stakeholders that wanted more time to review the request, including the American Petroleum Institute (API).
In its Jan. 12 comments, API sought a 60-day extension, citing a number of other rulemakings EPA launched that the group says overlap with the time frame of the information request, including the agency's package of air rules for the oil and gas sector. That package includes first time methane controls for the sectors, control techniques guidelines for curbing volatile organic compounds from existing sources in nonattainment areas, a proposal for new source review regulations on tribal lands and EPA's policy for revising how emissions are aggregated in permitting decisions.
The request for information will help guide the agency's pending reconsideration of its separate national emissions standards for hazardous air pollutants (NESHAP) issued in 2012 to cut the sector's air toxics levels.
EPA in the new request for information is seeking data not available at the time it crafted the 2012 air toxics standards for the oil and gas production industry, as well as the natural gas transmission and storage sectors, specifically on emissions of benzene, toluene, ethylbenzene and xylene (BTEX) from storage vessels without potential flash emissions (PFE) and information on controls for BTEX emissions. The agency is also requesting information on a potential compliance issue related to regulated small glycol dehydrators.
The agency says that it is requesting information on all HAPs from storage vessels without PFE and on HAPs other than BTEX from small glycol dehydrators, along with seeking information regarding compliance demonstration issues with its 2012 requirements for curbing BTEX from small glycol dehydrators.
The U.S. Court of Appeals for the D.C Circuit in a Sept. 24 order agreed to extend an existing stay holding in abeyance litigation over the drilling NESHAP rule through Jan. 12, 2016, in API, et al., v. EPA, a suit that consolidated petitions for reconsideration from the environmental groups and from industry. EPA said previously in the suit that it is in the process of developing the proposed reconsideration rule that addresses the issues for which it intends to grant reconsideration, but it needs additional time to complete the proposal.
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Canada To Consider Climate Change In Future Pipeline Approvals
Jan 26, 2016 | The Hill - E2 Wire
By Timothy Cama
Canadian officials will consider the impact of fossil fuels on climate change for all future approvals of pipelines and natural gas export terminals.
The move by Canada’s new liberal government, led by Prime Minister Justin Trudeau, could delay projects and further erode relations between oil-country provinces and coastal ones, Reuters reported.Trudeau outlined the plan Tuesday with reporters, saying it’s not his job to be a cheerleader for the projects.
Canada has taken flak from environmentalists around the world for its massive, carbon dioxide-intensive oil sands industry.
The country approved its section of the controversial Keystone XL pipeline years ago, but environmentalists pressured officials in both the United States and Canada to reject it because of its potential impact on climate change.
President Obama rejected Keystone last year, saying the move was necessary to ensure the United States is an international leader on climate change.
The new standards will apply to the Energy East pipeline by TransCanada Corp. and the expansion of the Trans Mountain pipeline, both of which would carry oil sands. They also would apply to a planned liquefied natural gas export terminal in British Columbia.
“The federal role is to put into place a process by which TransCanada and any other company could demonstrate that their projects are in the public interest and could have public support,” Trudeau told reporters after meeting Montreal Mayor Denis Coderre, according to Reuters.
“And what we are going to roll out very soon, as we promised in our election campaign, is to establish a clear process which will consider all the greenhouse gas emissions tied to a project, which will build on the work already done.”
Trudeau's position is much different than Stephen Harper's, his predecessor who went to great lengths to help the oil and gas sector.
The plan is part of a set of reforms the oil sector sees as hostile to the industry, which dominates provinces such as Alberta.
Local governments and indigenous tribes will also have more input in the projects’ considerations under the proposal.
“It’s not just governments which give permits. Communities must also give their approval, give permission,” Trudeau said.
Conservatives are accusing Trudeau of ignoring the value of oil and creating divisions across Canada.
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More Rules Needed for Methane Reduction Goals: Report
Jan 27, 2016 | BNA Daily Environment Report
By Anthony Adragna
New regulations on methane emissions from existing oil and gas infrastructure are necessary if the Obama administration intends to meet its goal of reducing industry emissions by 40 percent to 45 percent from 2012 levels by 2025, according to a report released Jan. 26 by the Clean Air Task Force.
In addition, the report said the Environmental Protection Agency needs to strengthen proposed standards for new and modified infrastructure to require non-emitting technologies and mandate devices to dramatically reduce venting from well bore liquids unloading.
“If the new and modified source standards are strengthened and corresponding strong existing source standards are issued, the administration will be able to meet its 2025 goal,” the report concludes. “A strong existing source rule could cut emissions dramatically in just a few years and would achieve the administration's goal of a 40–45% reduction by 2025.”
Actions already announced by the administration would reduce methane emissions by approximately 28 million metric tons of carbon dioxide equivalent but additional emission reductions of 75 million metric tons of carbon dioxide equivalent would be needed to hit the 40 to 45 percent reduction goal, the report said.
To date, the Obama administration has issued 2012 standards aimed at controlling volatile organic compounds, proposed a suite of rules for new and modified oil and gas infrastructure (80 Fed. Reg. 56,593; RIN 2060-AS30) and just Jan. 22 announced a proposed regulation (RIN 1004-AE14) to reduce emissions of methane and other gases from oil and natural gas wells on federal and Indian lands (15 DEN A-14, 1/25/16).
Existing Source Efforts Needed
But environmental advocates, like the Clean Air Task Force, have long argued the current regulatory efforts must be expanded to include existing oil and natural gas infrastructure if the administration wants to hit its emissions reduction goals. Curbing methane emissions is especially important, they say, because it is a gas more than 80 times as potent as carbon dioxide in the short term. The EPA lists methane as between 28 to 36 times more potent than carbon dioxide when measured over a 100-year period.
Effective regulations for existing sources would tackle leaks from valves, connectors and other equipment through monthly or quarterly surveys of equipment; require use of up-to-date technology and maintenance practices to reduce emissions and compel oil producers to capture or control gas emissions during the oil production process, the report said.
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Senate To Dive Into Bipartisan Package
Jan 27, 2016 | E&E Daily News
By Geof Koss
After a blizzard-induced delay, the Senate will today open debate on long-awaited broad and bipartisan energy reform legislation backed by Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska).
"I don't know about you all, but I spent a good portion of my weekend shoveling," Murkowski said on the Senate floor yesterday. "I feel stronger today, but I'm ready to be back at work where it's a little less rigorous."
Key senators from both parties last week said they were cautiously optimistic the measure -- S. 2012, which advanced through the committee last summer on a wide bipartisan vote -- would sidestep the fractious amendment battles that have dogged energy floor debates in recent years.
"I think people are like, 'We got a bill out of committee 18-4, we can move this,'" said Washington Sen. Maria Cantwell, the Senate Energy panel's top Democrat and bill co-author.
"Let's show the Senate can work. Let's not go crazy with a bunch of ancillary things," Cantwell said. "There's a lot of other people who have some interest in this, so it's not just up to Lisa and I. I think we're feeling like people are giving us the green light to get a basic energy bill done."
Murkowski used the Weekly Republican Address to push the measure nationwide, calling it the first major energy bill to be considered by the Senate since 2007. "It's been over eight years, folks," she said.
Senate Majority Leader Mitch McConnell (R-Ky.) last week framed the measure as a common-sense proposal to produce and save energy while lowering consumers' bills. But in a nod to the political crosswinds, McConnell also noted the bill is deficit-neutral.
"It won't raise taxes," he said on the Senate floor. "It won't add a dime to the deficit."
Still, the conservative Heritage Foundation is criticizing the bill as "an extension of the same, tired 'politicians know best' mentality that siphons taxpayer dollars and hands them to special interests," it wrote.
Among the provisions Heritage opposes are worker training programs, hydropower incentives, aid for advanced vehicle manufacturers, renewable power promotion, and efficiency retrofits for schools and nonprofits, plus the creation of a National Park Maintenance and Revitalization Fund.
Heritage Action, the group's political arm, is warning lawmakers that votes in the energy bill's favor will count against their records. It's unclear what effect Heritage's lobbying will have. Likely amendments
While McConnell has made clear that he'd like to replicate bipartisan legislative successes from last year, including education reform, a long-term transportation bill and tax legislation, lawmakers on both sides have signaled they're considering offering some hot-button amendments on the floor in the coming days.
Sen. John Hoeven (R-N.D.) says measures related to U.S. EPA's Clean Water Act jurisdiction rule, giving states more oversight over hydraulic fracturing and coal ash disposal, are likely to surface (Greenwire, Jan. 21).
Sen. John Barrasso (R-Wyo.) said he's drafting amendments targeting the Interior Department's new moratorium on coal leasing on federal lands (E&ENews PM, Jan. 20).
Sen. Steve Daines (R-Mont.), whose home state would also feel the leasing moratorium, said controversial policies are fair game for amendments, notwithstanding the bipartisan desire to see the bill enacted.
"My task is to make sure I'm looking out for the interests of the people of Montana and our country," he told E&E Daily last week.
Sen. Joe Manchin (D-W.Va.) wants to push bipartisan legislation, S. 1714, to shore up the United Mine Workers of America's troubled pension and retiree benefits plan (Greenwire, July 7, 2015).
"That's not been done," he told E&E Daily last week. "We could take care of that."
Manchin said he may also offer amendments to further research into carbon capture, storage and utilization technology, although he conceded there may be limited Democratic support.
"I've got three or four Democrats, but that's my high-water mark," he said.
Other senators said they may use the floor debate to highlight policy preferences, even if they don't seek votes on specific amendments.
Maine independent Sen. Angus King said he'd push his bill S. 1213, which aims to broker compromise between utilities, regulators and consumers over the costs of integrating renewables, efficiency and distributed generation into the grid (E&ENews PM, June 2, 2015).
"I'm certainly going to discuss that," King said last week. "Whether I'll propose an amendment, I'm not sure."
Murkowski yesterday said she and Cantwell had worked in recent days to get ready for debate, and encouraged colleagues to get in touch about amendments or other issues. The senators made similar calls during the extended Keystone XL bill debate last year.
Murkowski said the bill would "require a great level of cooperation. But we are going to be ready to hit the ground running and try to move quickly with this very, very important legislation."
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States Ask Supreme Court to Review Clean Power Plan Stay
Jan 27, 2016 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court should reverse an appellate court and stay the implementation of the Environmental Protection Agency's Clean Power Plan because the carbon dioxide standards are likely to end up before the high court, 29 states and state agencies argued (West Virginia v. EPA, U.S., docket number unavailable, 1/26/16).
The states, led by West Virginia and Texas, argued in a Jan. 26 petition to the Supreme Court that legal issues presented by the Clean Power Plan are more pressing than those involved in the EPA's greenhouse gas permitting regulations or toxic pollutant standards for power plants, both of which the court reviewed. The Supreme Court should stay implementation of the EPA's carbon dioxide standards until those issues can be resolved, the states said.
“There is at least a fair probability that if the D.C. Circuit upholds the Power Plan, four Justices of this Court would vote to grant a petition for a writ of certiorari and at least a fair prospect that the court majority would declare the Plan unlawful,” the states argued.
The EPA's Clean Power Plan (RIN 2060-AR33) sets a carbon dioxide limit for the power sector in each state, which would be implemented by state regulators. The rule is being challenged by 27 states as well as several industry groups.
The U.S. Court of Appeals for the District of Columbia Circuit, which will hear the first challenges to the rule, denied petitions on Jan. 21 to stay the rule during the litigation (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16; 14 DEN A-4, 1/22/16).
States Cite Parallels to Permitting Decision
The states linked the Clean Power Plan to the EPA's greenhouse gas permitting program, which was limited by the Supreme Court in 2014 (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 34 S. Ct. 2427 (2014)).
In that decision, Justice Antonin Scalia had cautioned the EPA that “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,' ... we typically greet its announcement with a measure of skepticism.”
The states argued that the Clean Power Plan represents a similar overreach on the part of the EPA.
“Just two years ago, this Court made clear in UARG that an agency cannot exercise significant and transformative power unless it has clear congressional authorization,” they said.
States and state agencies joining the petition are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, Wyoming, Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality, and Oklahoma Department of Environmental Quality.
“Given the wide-ranging impact of the Power Plan and its clear illegality, this case more than satisfies the stay factors concerning the likelihood that this Court would grant certiorari and reverse a decision of the D.C. Circuit upholding the Power Plan,” the states said.
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States Asks High Court to Delay EPA Carbon-Emissions Rule
Jan 26, 2016 | The Wall Street Journal
By Brent Kendall and Amy Harder
A group of 26 states on Tuesday filed a last-ditch request at the Supreme Court seeking the delay of a key Obama administration environmental rule to cut carbon emissions from power plants.
The move, which faces long odds, comes days after a U.S. appeals court declined the states’ request to halt the Environmental Protection Agency’s regulation, issued last year, while they challenge it in court.
The appeals court said the state challengers, led by West Virginia and Texas, hadn’t satisfied the demanding legal standards to win a stay of an agency regulation during litigation.
The challenger states argued a stay was warranted because they would otherwise need to begin spending considerable time and money planning for the EPA requirements. The agency said there was no reason to halt the regulation because states don’t have to comply until 2022.
The EPA rule is an important part of President Barack Obama’s strategy for addressing climate change. It seeks to reduce carbon-dioxide emissions from hundreds of power plants across the U.S.
The regulation requires a 32% cut in power-plant carbon emissions by 2030 based on emissions levels of 2005. It is designed to force the utility industry, the largest source of U.S. carbon emissions that contribute to climate change, to shift toward cleaner-burning energy sources over the next several decades.
An EPA spokeswoman declined to comment on the states’ Supreme Court request, referring to an earlier agency statement that said the regulation rested on “strong scientific and legal foundations.”
The Supreme Court will likely act on the request in the coming days.
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States Ask Supreme Court To Block EPA Carbon Rule
Jan 26, 2016 | PoliticoPro - Whiteboard
By Alex Guillén
Twenty-five states today asked the Supreme Court to block EPA’s Clean Power Plan while lawsuits play out after three lower court judges last week declined to do so.
“Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal,” said West Virginia Attorney General Patrick Morrisey.
A three-judge panel of the D.C. Circuit Court of Appeals on Thursday said they would not issue a stay of the carbon rule because the challengers “have not satisfied the stringent requirements for a stay pending court review.”
If the Supreme Court were to grant the stay, the lawsuits would still move forward first in the D.C. Circuit before any expected appeal to the high court.
It is unusual to ask the Supreme Court to step in at this stage of a lawsuit, but “real people are hurting in West Virginia and it’s my job to fight for them," Morrisey said.
The states are West Virginia, Texas, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming. They were joined by four state agencies: the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.
Other challengers have also vowed to appeal seeking a stay, including coal producer Murray Energy.
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States Appeal To Supreme Court In Fight Against Obama’s Climate Rule
Jan 26, 2016 | The Hill - E2 Wire
By Timothy Cama
Twenty-six states are asking the Supreme Court to block the Obama administration’s landmark climate change rule for power plants.
The states, led by West Virginia and Texas, say a lower appeals court was wrong last week to reject their plea to hold the regulation off while the federal court system decides whether it is legal.The appeal shows an attempt to get the high court involved in the litigation much faster than would usually be the case if the states had to wait for the lower court to decide and appeal the ruling.
“While we know a stay request to the Supreme Court isn’t typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule,” West Virginia Attorney General Patrick Morrisey said in a statement. “Real people are hurting in West Virginia and it’s my job to fight for them.”
Without the stay, the states write in their 63-page Supreme Court petition, the regulation “will continue to unlawfully impose massive and irreparable harms upon the sovereign states.”
The Tuesday filing is the latest unorthodox move by conservative-leaning states to convince federal courts to overturn the Environmental Protection Agency’s (EPA) climate rule, known as the Clean Power Plan.
Shortly after the Obama administration proposed the rule, in 2014, the group sought to have it overturned. But the Court of Appeals for the District of Columbia ruled that it could not act on a regulation that is not final.
That court has scheduled oral arguments on the merits of the recent challenge for June 2. The states would usually have to wait for a ruling on that case for a Supreme Court appeal.
The regulation, made final in August, mandates a 32 percent cut in the power sector’s carbon dioxide emissions by 2030.
States’ plans for complying with it are due in September, or they can ask for a two-year extension from the EPA.
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Supply Chain Thwarts Coca-Cola, Goldman Sachs Climate Action
Jan 27, 2016 | BNA Daily Environment Report
By Jessica Shankleman
Goldman Sachs Group Inc., Coca-Cola Co. and 73 other companies that together buy more than $2 trillion of goods and services are unprepared for climate shocks because suppliers are ignoring requests for data on their exposure to rising temperatures and climate regulation.
Almost half of the 7,879 main suppliers to 75 companies including General Motors Co., Microsoft Corp. and Wal-Mart Stores Inc. failed to respond to requests for data on managing climate risk, according to a report Jan. 26 by nonprofit organizations CDP, formerly known as the Carbon Disclosure Project, and BSR, a sustainability consultant.
Many large companies pledged to take measures to address climate change to contribute to a United Nations climate agreement between 195 nations sealed in December in Paris (242 DEN A-14, 12/17/15).
They are taking steps to prepare for weather extremes such as flooding and drought brought on by global warming. While they are setting targets to cut their own fossil-fuel pollution, the report shows their suppliers, which are responsible for as much as four times as much greenhouse gas emissions, are out of sync.
“Companies have a vital role to play in implementing the Paris agreement,” Paul Simpson, chief executive officer of CDP, said in an e-mailed statement. “Those that are unable to do so risk being the losers from this inevitable transition.”
Only 4,005 suppliers, about 51 percent of those asked, provided data on their climate risk management, water risks or carbon emissions. Of those which did respond, 72 percent said climate change risks could significantly impact their operations, sales or costs. Nearly two-thirds said climate policies, such as carbon taxes, posed a risk to their business.
But less than half of respondents set a target to cut carbon emissions and only 34 percent reduced emissions in the past year.
“Emissions are not reducing at the rate required to meet the Paris goals, nor are suppliers building the resilience they need to deal with the climate impacts they will inevitably face,” Christiana Figueres, the UN's top climate diplomat, said in the report.
Companies should work with suppliers to encourage greater action on climate change, according to the report. For example Danish toymaker Lego A/S started hosting “innovation camps” in the hope of creating joint projects with suppliers that could reduce carbon emissions collaboratively. Other companies have threatened to drop suppliers that fail to comply with their environmental policies.
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Environmental Group Gives 54 California Lawmakers High Marks
Jan 27, 2016 | BNA Daily Environment Report
By Carolyn Whetzel
Environmental justice advocates gave 54 California lawmakers high marks for supporting legislative actions in 2015 addressing environmental and social justice in low-income areas and communities of color.
The latest annual legislative scorecard from the California Environmental Justice Alliance, released Jan. 25, focused on voting records for 15 bills that the group supported. Only 11 of the measures were signed into law, the group said.
“This year's scorecard shows the growing power of the environmental justice movement,” CEJA co-director Amy Vanderwarker said in a teleconference with reporters.
More individual lawmakers scored in the 90 percent-100 percent range in 2015 than in the past two years combined, CEJA said in the report.
Thirty-seven lawmakers, including State Senate President Pro Tempore Kevin de Leon, Sens. Fran Pavley and Lois Wolk, Assembly Speaker Toni Atkins and Assembly Speaker-Elect Anthony Rendon earned perfect scores for supporting bills that strengthened the state's renewable energy standard, promoted the installation of solar panels on multi-family affordable housing units and added two new appointees to the California Air Resources Board to work directly with environmental justice communities.
Many of the same lawmakers earned high scores in the Sierra Club's 2015 Legislative Report Card.
“In 2015, we saw historic partnerships between legislative leaders and communities to pass new equitable environmental policies that help fight climate change, reduce toxic exposures, diversify the California Air Resources Board and the largest solar program for low-income tenants in the state,” said Martha Arguello, executive director of Physicians for Social Responsibility - Los Angeles, one the CEJA's partners.
The CEJA scorecard criticized some members of the Moderate Democratic Caucus for opposing the governor's ambitious effort to require a 50 percent reduction in the vehicle use of petroleum. An oil industry-financed campaign argued the provision initially included in S.B. 350, which boosted the state's renewable portfolio standard from 30 percent to 50 percent, would harm low-income families by increasing the cost of fuel.
Many of these moderate Democrats represent low-income individuals and communities of color, “but they succumbed to industry pressure,” the CEJA said in the report.
“Almost every district has some highly impacted communities,” CEJA's Vanderwarker said. “What this means is the legislators can no longer say environmental justice isn't an issue in their district.”
While 2015 was a success in advancing environmental justice issues, much more needs to be done, the CEJA said.
The CEJA and its partner groups said they will continue their advocacy efforts to build on last year's victories.
“Now is the time to make sure our environmental policies are not just scientifically based, but also equity based,” said Sofia Parino, a senior attorney at the Center for Race, Poverty & the Environment.
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