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ACC AM Jan 28
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(ACC Mentioned) Dark Money Dominates Political Ad Spending
Jan 28, 2016 | Bloomberg Politics
By William Allison
Presidential candidates, congressional hopefuls and the super-PACs that back them are preparing to disclose to voters Jan. 31 who has been providing the tens of millions of dollars they have poured into political ads. There's one hitch: that's only about a third of the money that's been spent shaping the elections. -
EPA Workshop Grapples With Exposure Quandary
Jan 28, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Federal, academic and other scientists are grappling with the quandary that actual exposures have little in common with the exposure assumptions typically used in risk assessments that underlie regulatory and other decisions, speakers at a three-day workshop said Jan. 27. -
Consumer Reports: Two-Thirds Of Consumers Misled By Natural Labels
Jan 27, 2016 | The Hill - Regulation
By Lydia Wheeler
Nearly two-thirds of consumers are misled by foods labeled as “natural,” a Consumer Reports National Research Center study released Wednesday found. Of 1,005 adults polled in December, nearly half incorrectly believed that natural claims on labels had been independently verified, and nearly two-thirds thought the “natural” label meant... -
EPA Backs USGS Finding Coal-Tar Sealants Are Major Source Of PAHs
Jan 27, 2016 | InsideEPA
By Dave Reynolds
EPA is largely rejecting an industry request to correct information on its website endorsing U.S. Geological Survey (USGS) findings that coal-tar pavement sealants are the largest source of polycyclic aromatic hydrocarbons (PAHs) in urban lakes, but clarifying that there are multiple natural and man-made sources of PAHs in the environment. -
Safety Of Manufactured Nanomaterials: OECD Issues Two Reports
Jan 28, 2016 | Chemical Watch
The OECD has released two reports in its environment, health and safety publication series on the safety of manufactured nanomaterials Physical-chemical parameters: Measurements and methods relevant for the regulation of nanomaterials contains observations and conclusions drawn from a meeting of the organisation's... -
On The Hunt For Natural Beauty Products For Women Who Actually *Like* Makeup
Jan 27, 2016 | Fast Company
By Jackie Snow
It sounds like the start of a joke: A rock star and a Harvard business school student team up and start a beauty blog. But Beauty Lies Truth is a real site started by Alexis Krauss, one half of the band Sleigh Bells, and Harvard Business School student Jessica Assaf. -
Why I Blocked An Oil Train — And Why You Should Engage In Climate Disobedience Too
Jan 27, 2016 | Grist
By Patrick Mazza
When the Delta 5 sat in front of an oil train at BNSF Delta Yard in Everett, Wash., on Sept. 2, 2014, we did not expect to stop climate disruption or dangerous fossil fuel shipments. By ourselves, that is. What we did expect was that our act of civil disobedience, positioning ourselves on a tripod and blocking... -
Florida House Passes Fracking Bill, Preempts Local Bans
Jan 28, 2016 | BNA Daily Environment Report
By Chris Marr
The Florida House approved a bill to create state regulations for the oil and gas drilling technique known as fracking while preempting local government bans on the technique. HB 191, which passed the House Jan. 27 by a vote of 73-45, temporarily prohibits high-pressure well stimulation while the state Department of Environmental Protection... -
BLM Gas Waste Proposal Considers Royalty Changes
Jan 28, 2016 | BNA Daily Environment Report
By Alan Kovski
A proposed rule to reduce the waste of natural gas from federal and Indian lands opens a couple of doors to increased federal royalties. The Bureau of Land Management proposal, Waste Prevention, Production Subject to Royalties, and Resource Conservation, would revise the way royalties are applied to wasted natural gas and would advance... -
BLM, State Methane Plans Could Boost Call For EPA Existing Source Rule
Jan 27, 2016 | InsideEPA
By Bridget DiCosmo
Environmentalists say plans by the Bureau of Land Management (BLM) and states such as California and Pennsylvania on cutting methane emissions from the natural gas sector could boost their call for EPA to promulgate first-time methane limits on existing drilling operations after it finalizes a methane rule for new drilling. -
2016 Starts With Growing Momentum To Cut Oil And Gas Methane Pollution
Jan 27, 2016 | Environmental Defense Fund
By Felice Stadler
We’re less than a month into 2016, and there are already signs that this could be the year the United States finally gets serious about addressing methane pollution from the oil and gas industry. Some strong first steps in 2015 got the ball rolling, and now attention-grabbing events like the massive methane leak in Southern California and the... -
Energy Bill Consideration Begins
Jan 28, 2016 | BNA Daily Environment Report
By Ari Natter
The Senate began consideration of what could be the first major energy bill in nearly a decade Jan. 27, an effort that was expected to draw Republican amendments that would roll back the Obama administration's Clean Power Plan and other environmental rules. -
Old And New Fights Emerge On Senate Floor
Jan 28, 2016 | E&E Daily News
By Geof Koss and Hannah Hess
Senators from both parties are planning a slew of amendments to the chamber's bipartisan energy bill reflecting both recurring fights over administration policies as well as new battles over recent developments in the energy arena. At noon, lawmakers are set to cast the first of two votes on amendments scheduled last night. -
White House Stops Short Of Veto Threat Of Senate Bill
Jan 27, 2016 | E&E News PM
By Geof Koss and Hannah Hess
The Obama administration today outlined a list of objectionable provisions in the Senate's bipartisan energy bill but stopped short of threatening to veto the measure. The White House, in a statement of administration policy, lauded the bipartisan support for the package, S. 2012, which includes multiple provisions to address efficiency... -
Coalition Of States Seeks Supreme Court Stay Of ESPS
Jan 27, 2016 | InsideEPA
As expected, West Virginia is leading a coalition of 26 states to ask the Supreme Court to stay EPA's existing source performance standards (ESPS) power plant greenhouse gas rule, after an appellate court last week denied opponents' petitions for a stay of the rule pending judicial review. -
Utilities, Industry Join States' Bid For Supreme Court Stay
Jan 27, 2016 | E&E News PM
By Robin Bravender
Utilities and industry groups have joined more than two dozen states asking the Supreme Court to halt U.S. EPA's Clean Power Plan. Their requests were filed today as Chief Justice John Roberts today asked the government to respond to those asking his court to block the Obama administration's signature climate rule. Roberts asked... -
Carbon Trading Illegal in Federal Plan, States Argue
Jan 28, 2016 | BNA Daily Environment Report
By Andrew Childers
A proposed federal plan to implement the Environmental Protection Agency's carbon dioxide standards for power plants is an illegal attempt to impose a cap-and-trade program expressly rejected by Congress, states leading legal challenges to the program said. -
EPA Fights Push To Keep Utility MACT Suits In Abeyance
Jan 27, 2016 | InsideEPA
EPA is fighting the power sector's bid to keep some challenges to provisions in its reconsidered utility maximum achievable control technology (MACT) in abeyance, saying it would best serve “judicial economy” to hear all those challenges now rather than wait for the agency to issue a related final cost review of the regulation. -
SEC May Seek More Climate Change Disclosure
Jan 28, 2016 | BNA Daily Environment Report
By Dave Michaels
The Securities and Exchange Commission is weighing new requirements for public companies to make more frequent disclosures about climate change, Chairman Mary Jo White said. The disclosure of climate-change as well as cybersecurity risks is part of a broader review of financial reporting rules, White said Jan. 26 at a Northwestern... -
The Flint Water Crisis Is Coming to the Senate
Jan 28, 2016 | National Journal
By Jason Plautz
The water crisis that has left thousands with lead-poisoned water in Flint, Michigan is making its way to the Senate floor. Democratic Sens. Gary Peters and Debbie Stabenow of Michigan plan to introduce an amendment Thursday related to the Flint crisis to the bipartisan energy bill under debate this week. -
Advocates Pursue Flint SDWA Suit As EPA, Michigan Clash On Oversight
Jan 27, 2016 | InsideEPA
By David LaRoss
Environmentalists are pursuing a Safe Drinking Water Act (SDWA) suit against city and state officials over the drinking water crisis in Flint, MI, that seeks stricter drinking water monitoring and treatment, while the agency and Michigan clash over EPA's power to issue a SDWA order to force some of the actions sought by the suit.
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(ACC Mentioned) Dark Money Dominates Political Ad Spending
Jan 28, 2016 | Bloomberg Politics
By William Allison
Presidential candidates, congressional hopefuls and the super-PACs that back them are preparing to disclose to voters Jan. 31 who has been providing the tens of millions of dollars they have poured into political ads. There's one hitch: that's only about a third of the money that's been spent shaping the elections.
The rest comes from so-called dark money groups—social welfare organizations, associations and others—which aren't required to reveal the interests behind them and have put up more than $213 million on political ads since the start of 2015, an analysis of Kantar Media CMAG data shows. The groups have promoted their views on everything from climate change to health-care policy to immigration. Official campaigns and super-political action committees have spent about $114 million.
American elections are being transformed by a series of court rulings, including the U.S. Supreme Court's 2010 Citizens United decision, which loosened decades-old limits on money in politics by declaring that political spending was a form of speech protected by the First Amendment. The decision opened the door for nonprofit trade associations, social welfare organizations and limited liability corporations to become more active in politics.
“The campaigns are more complex, as are the money networks, and it's much harder for the public to see what's going on behind the scenes,” said Sheila Krumholz of the Center for Responsive Politics, which tracks money in politics. “Citizens United has given people the psychological confidence and cushion to operate in the shadows. Political operatives know they can do whatever they want so long as they stay within certain boundaries.”
Even though election law gives corporations a free hand, tax law still restricts most nonprofits' political spending to less than half of their budget. Still, almost a quarter of the dark money spending in 2015—about $52.5 million—has gone for ads that specifically mention candidates for federal office, including $10.5 million on the presidential race.
The biggest spender there is the Conservative Solutions Project, a nonprofit formed in 2014 to support Republican Marco Rubio, a Florida senator. The group has spent about $8.1 million on ads featuring excerpts of Rubio's speeches on topics including foreign policy and the need for strong U.S. leadership. The group ran only one ad mentioning a politician other than Rubio: Tea Party favorite Mike Lee, a Republican senator from Utah, who worked on a tax overhaul plan with Rubio. While none of the ads asks viewers to vote for Rubio, they prominently feature his views, accomplishments and agenda.
Of Conservative Solutions Project's spending, $2.9 million has gone to national cable ads and the rest to the first three states with caucuses or primaries: Iowa ($1.3 million), New Hampshire ($1.5 million) and South Carolina ($2.4 million). Meanwhile, Conservative Solutions PAC, the super-PAC supporting Rubio, spent $1.7 million in Iowa, $2.8 million in New Hampshire and just $386,000 in South Carolina, according to CMAG data.
Conservative Solutions Project announced it had raised $15.8 million through in July 2015. That same month, according to a report in the New York Times, it said it planned to spend $20 million on issues advertisements, commercials that might mention federal officeholders and candidates without explicitly telling voters to support or oppose them. The group hasn't aired an ad since Nov. 23, and spokesman Jeff Sadosky said there aren't immediate plans to run any more.
“They're definitely gaming the system,” said Paul Ryan of the Campaign Legal Center, a campaign finance watchdog. The group in November requested that the Tax Division of the Justice Department investigate whether Conservative Solutions Project was engaging in excessive campaign activity on Rubio's behalf.
Sadosky dismissed the complaint and said the group is simply focused on “advocating for a conservative agenda.”
How much more money Conservative Solutions Project has raised won't become public until after the election. Its annual tax returns are due four months after the end of its fiscal year. Sadosky said returns covering June 2014 through May 2015 will be filed by April, but details about its financial activity during the presidential primary season won't become public until 2017.
Rubio isn't the only presidential contender with nonprofit backing. Jeb Bush is being supported by a group called Right to Rise Policy Solutions which also runs alongside the super-PAC that backs him, Right to Rise USA. While the super-PAC pays for ads, the nonprofit runs a website featuring policy papers on national security, education reform and biomedical innovation.
Until the current election cycle, dark money groups acted outside the network of organizations supporting campaigns. In 2012, for example, Americans for Prosperity, a nonprofit with ties to the wealthy libertarian and conservative donors Charles and David Koch, spent more than $33.5 million opposing President Barack Obama—all of it in the general election. In the current cycle, dark money is playing a role in the primaries.
Other nonprofit groups that have gone after presidential candidates don't have apparent links to active campaigns. The Foundation for a Secure and Prosperous America, a nonprofit founded in 2007 to support Republican John McCain's 2008 presidential run, spent $290,000 in early April 2015 running ads in markets serving Iowa, New Hampshire and South Carolina attacking Rand Paul for supporting nuclear negotiations with Iran. As recently as December 2014, according to its most recent filing with the Internal Revenue Service, the group had no income, and was about $4,500 in the red.
Advertising by dark money groups may be even more effective than messages from the candidates themselves, according to Krumholz.
“If we're completely unfamiliar with a group and have no idea who's bankrolling it, instead of discounting its ad, voters give it more attention,” said Krumholz. “That gives these groups more power to manipulate and influence voters.”
Dark money groups are also bearing down on Senate races, where groups have spent more than $39 million since the start of 2015, according to the CMAG data. For example, Senator Pat Toomey, a Pennsylvania Republican, featured in more than $7.1 million worth of ads. The U.S. Chamber of Commerce, the American Chemistry Council and Concerned Veterans for America, a nonprofit with links to the network of organizations created by Charles and David Koch, spent almost $2.4 million touting aspects of Toomey’s record. Planned Parenthood Action Fund, Environmental Defense Action Fund and the Natural Resources Defense Council spent $4.3 million criticizing him.
“Nonprofits want to shape races,” said Travis Ridout, a political science professor at Washington State University, referring to the politically active groups that spend early on congressional candidates. “They want to be involved in Senate and House races across the country. They have more ideological goals, whereas super-PACs are moving into a single candidate role.”
Still, the bulk of the political spending by dark money groups targeted issues without mentioning candidates—about $161 million of the $213 million spent. While most of the groups focused on legislative issues like the agreement with Iran over its nuclear program, lifting the ban on exports of U.S. crude oil, renewable fuel standards and other matters before Congress, there were some ads that were more subtle.
A group called Opportunity News Media LLC ran nine ads—two in Spanish—all narrated by a woman, highlighting the importance of education and having a job, all but one of which end with the tag line, “There are still people who believe opportunity lives in America, and we call ourselves Republicans.” Kantar Campaign Media Analysis Group estimates the ads, the bulk of which aired in the swing states of Colorado and Ohio, cost more than $14 million to air. They ran between the last week of July 2015 and mid-September of that year.
“There may have been one large donor who thought this was a great idea, or maybe it's part of a larger strategy,” said Ridout. “I'd be curious to know who's funding that.”
Because it's a limited liability company, Opportunity News Media is not required to tell him. Or anyone else.
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EPA Workshop Grapples With Exposure Quandary
Jan 28, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Federal, academic and other scientists are grappling with the quandary that actual exposures have little in common with the exposure assumptions typically used in risk assessments that underlie regulatory and other decisions, speakers at a three-day workshop said Jan. 27.
The Environmental Protection Agency is hosting a workshop Jan. 27-29 called Temporal Exposure Issues for Environmental Pollutants: Health Effects and Methodologies for Estimating Risk.
“We know that children, that senior citizens, are more susceptible. We know why that's the case, but that information is rarely integrated into risk assessment,” said Kenneth Olden, director of the EPA's National Center for Environmental Assessment.
Exposure assumptions risk assessors make can greatly affect decisions such as the cleanup level for a contaminated site, the amount of a contaminant that the EPA would allow in drinking water and the types of protective equipment—if any—that workers would need to use when working with a chemical.
Chemical exposures that occur during the growth and developmental stages of tissues, organs and biological systems may cause very different effects than would exposures that occur before or after such periods of change, said Stan Barone, deputy director of the Risk Assessment Division of the EPA's Office of Pollution Prevention and Toxics,
Paul Price, a computational exposure scientist at the EPA's National Exposure Research Laboratory and formerly a senior researcher at the Dow Chemical Co., said risk assessors commonly assume exposures remain constant over a set period of time, such as a lifetime, an eight-hour workday or during a consumer's use of a product.
The reality, however, is much different, Price said.
Exposures Differ
Week day exposures at work are different from transportation-related exposures on the way to or from work, and both of those exposures are different, for example, from those homeowners would experience as they prepare to paint their walls over a weekend, he said.
People are exposed to some chemicals, such as contaminants that could be in drinking water, fairly constantly while they inhale, touch or ingest other chemicals periodically, such as fireplace cleaning products, he said.
Workshop participants will discuss research needed to provide data that would address questions raised by the effort to make exposure estimates better reflect workers', consumers, children's, senior's and other groups' actual exposures.
A goal is to respect the rigors of science yet not let decision makers get lost in its complexity, said David Bussard, director of the Washington, D.C., division of the EPA's National Center for Environmental Assessment.
Workshop participants also should identify the types of research most useful in the near term, said Reeder Sams, senior science advisor of the assessment center's Research Triangle Park, N.C., division.
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Consumer Reports: Two-Thirds Of Consumers Misled By Natural Labels
Jan 27, 2016 | The Hill - Regulation
By Lydia Wheeler
Nearly two-thirds of consumers are misled by foods labeled as “natural,” a Consumer Reports National Research Center study released Wednesday found.
Of 1,005 adults polled in December, nearly half incorrectly believed that natural claims on labels had been independently verified, and nearly two-thirds thought the “natural” label meant more than it does.
Consumer Reports, which has long argued that natural labeling lacks meaningful standards, found many people think a natural label on processed foods means that no pesticides, artificial ingredients, artificial chemicals or genetically modified ingredients were used.
While 62 percent of consumers said they already buy food labeled as natural, 87 percent of those consumers said they would pay more for natural food if the label met their expectations.
The study found that 85 percent of consumers said natural should mean no chemicals were used during processing; 84 percent said no artificial ingredients, colors or pesticides should be used; and 82 percent said the food should not contain genetically modified ingredients.
“Ideally, we’d like to see federal regulators ban the natural label, but if they don’t get rid of it, then they must give it real meaning,” Urvashi Rangan, director of the Consumer Reports Food Safety & Sustainability Center, said in a report released with the study.
The group petitioned the Food and Drug Administration (FDA) in 2014 to ban natural labels altogether and asked the U.S. Department of Agriculture to ban the the word from being used on meat and poultry labels.
In November, the FDA responded by asking the public to comment on whether it should define “natural” and set guidelines for its use on food products. The agency said it has long considered natural to mean that nothing artificial or synthetic, including color additives, were used in producing the food.
The FDA extended the public comment period last month to give industry more time to respond. Comments are now due May 10.
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EPA Backs USGS Finding Coal-Tar Sealants Are Major Source Of PAHs
Jan 27, 2016 | InsideEPA
By Dave Reynolds
EPA is largely rejecting an industry request to correct information on its website endorsing U.S. Geological Survey (USGS) findings that coal-tar pavement sealants are the largest source of polycyclic aromatic hydrocarbons (PAHs) in urban lakes, but clarifying that there are multiple natural and man-made sources of PAHs in the environment.
Additionally, in a Jan. 19 response to the Pavement Coating Technology Council's (PCTC) request for correction under the Data Quality Act (DQA), EPA says the Office of Research and Development is studying sources of PAHs to urban waters, including an evaluation of USGS sediment data using new methodology.
Producers of coal-tar sealant have long opposed assertions by USGS scientists and others that pavement sealed with coal-tar is a major source of PAHs that pose risks to human health and the environment. In April 2014, PCTC filed the DQA petition, urging EPA to remove information from its site citing USGS research finding risks from coal-tar sealants.
The DQA generally requires agencies to ensure that scientific and other data used to develop policy stances are objective, reproducible and peer-reviewed. While the law requires agencies to respond to petitions to correct allegedly flawed data used in rulemakings and other decisions, courts have ruled the agency responses are not reviewable.
In its response, EPA backs USGS findings that coal-tar pavement sealant is a significant source of PAHs, noting that one of EPA's own studies has found that coal-tar sealcoat releases 100 to 1,000 times more PAHs than other surfaces. EPA also declines to remove statements that PAHs have harmful effects on humans and the environment.
But EPA says it will modify language on its website to better emphasize that numerous sources of PAH contamination in urban waters exist, and also that while many forms of PAHs pose risks, not all have been analyzed for their harmful effects. EPA gives PCTC 90 days to file a request for reconsideration of its request for correction.
PCTC, in pushing back against federal assertions about the risks of coal-tar sealant, has filed multiple DQA challenges with USGS, as well as a Freedom of Information Act request seeking information on the EPA study that found coal-tar sealcoat releases significantly more PAHs than other surfaces.
Although DQA challenges face high hurdles for agencies to grant, a successful challenge could bolster the PCTC's opposition to legislative efforts to ban coal-tar sealants. In years past, Rep. Lloyd Doggett (D-TX) has introduced bills to amend the Toxic Substances Control Act to bar the manufacture of coal-tar sealant, and several state and local governments have restricted the sale or use of the sealants.
DQA Challenge
In the April 16, 2014, DQA challenge PCTC targeted two EPA publications that cite USGS studies finding either that coal-tar sealants are the largest source of PAH contamination in urban lakes studied, or that the sealants produce higher PAH concentrations in runoff than parking lots that do not use the sealant.
PCTC argued that EPA's website uses outdated studies to portray coal-tar sealants as a high source of PAHs and toxic to aquatic life despite a lack of scientific consensus. The group also alleged that EPA failed to consider studies by industry and other government agencies contrary to the conclusions of USGS scientists.
Specifically, PCTC requested that EPA withdraw a November 2012 Office of Water fact sheet on "Coal-Tar Sealcoat, Polycyclic Aromatic Hydrocarbons, and Stormwater Pollution," and remove information on its Causal Analysis/Diagnosis Decision Information System (CADDIS) website, suggesting coal-tar sealants are a major source of PAHs in urban waters. CADDIS helps states and EPA regions to assess sources of pollution in aquatic streams.
In the response, EPA declines to withdraw the information and defends "the quality, objectivity and transparency" of the USGS studies as "sufficient for their intended uses." The agency also notes that PCTC has filed several DQA requests with USGS, which has responded "point-by-point in several letters" to the industry group.
Given its support of the USGS studies, EPA declines to reference "PCTC-sponsored studies" questioning the validity of USGS findings on coal-tar sealants. EPA also declined to remove references to states and cities that have restricted sealant use, saying it routinely cites steps others are taking to address stormwater pollution in its publications.
The agency also disputes PCTC's assertion that its website is "influential," arguing the information is not posted in support of agency rules, policy documents or guidance, and is not economically significant, and therefore subject to regulatory review. EPA also says it did not deliberately exclude PCTC in developing the information on its website.
While defending data on its site, EPA says the information is not meant to be an exhaustive inventory of studies but rather to provide best management practices or "brief background information on a potential issue of concern in urban aquatic systems." To better emphasize that coal-tar sealants are one of multiple sources of PAHs to urban waters, EPA has added a new opening paragraph to its stormwater fact sheet that identifies both natural and man-made sources of PAHs. EPA says its CADDIS website already lists multiple PAH sources, but that the agency will change the title of the page from "Pavement Sealants and PAHs" to "PAHs."
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Safety Of Manufactured Nanomaterials: OECD Issues Two Reports
Jan 28, 2016 | Chemical Watch
The OECD has released two reports in its environment, health and safety publication series on the safety of manufactured nanomaterials
Physical-chemical parameters: Measurements and methods relevant for the regulation of nanomaterials contains observations and conclusions drawn from a meeting of the organisation's Working Party on Manufactured Nanomaterials (WPNM) held in Washington, DC, in June 2014.
Approaches on nano-grouping/equivalence/read-across concepts based on physical-chemical properties (Gera-PC) for regulatory regimes details the results of a questionnaire survey conducted by the WPMN between October and December 2013.
Both are published under the responsibility of the OECD's Joint Meeting of the Chemicals Committee and Working Party on chemicals, pesticides and biotechnology.
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On The Hunt For Natural Beauty Products For Women Who Actually *Like* Makeup
Jan 27, 2016 | Fast Company
By Jackie Snow
It sounds like the start of a joke: A rock star and a Harvard business school student team up and start a beauty blog. But Beauty Lies Truth is a real site started by Alexis Krauss, one half of the band Sleigh Bells, and Harvard Business School student Jessica Assaf. Their goal? To advocate for a beauty industry that is inclusive to getting dolled up, but with makeup that has safer and more natural ingredients.
The site (BLT for short), is a part blog, part beauty guide of products that are free of or have fewer artificial ingredients and toxic chemicals. Assaf and Krauss research labels and test products, offering themselves up as guinea pigs. They profile small beauty business owners and interview experts, and feature posts on Krauss’s musician friends and their beauty routines. The site focuses on products that cost $40 and under to make their recommendations affordable to a wide audience.
BLT was born from frustration at the natural beauty movement, which Assaf and Krauss say engaged more with women who preferred minimal makeup—think lip balm and hand cream. "We want to connect with young women who didn’t want to feel guilty using products," Krauss says.
BLT covers more than just cosmetics and skincare, diving into areas their readers, some of whom turn out to be men, ask about. So far, they’ve tackled problems or highlighted alternative solutions for aftershave, tampons, and even tattoo aftercare. "Lathering an open wound with petroleum-based lotion and then wrapping it in plastic doesn’t make sense," Krauss says.
Krauss got interested in the beauty industry in 2013 when she read an article in the New York Times about plastic microbeads, a common ingredient in exfoliants—since banned—that were showing up in waterways and marine life. Looking for alternatives, she got in contact with a friend at Fair Trade USA who told her about S.W. Basics, an organic skincare company in her neighborhood in Brooklyn. She emailed to request samples and Assaf, who worked there at the time, replied. They met in early 2013 and clicked. By the middle of 2014, Beauty Lies Truth was born.
Assaf has been a beauty industry activist since she was 15, when she learned that her mascara had a chemical in it that was also used to clean airplane wheels. "I say it was my first real breakup," Assaf says. "When I broke up with my first beauty product."
Assaf had people telling her through the years to just stop using makeup, which she insists is not the answer. "We love putting on makeup, giving our friends makeovers, getting our nails done," she says. "We shouldn’t have to choose between makeup and our health."
Krauss also doesn’t want to give up makeup—she’s a rock star, after all. She now asserts herself at photo shoots if she doesn’t want certain products being used, even bringing her own supplies.
The United States lags behind other Western countries in testing and regulating the beauty industry. According to Campaign for Safe Cosmetics, the European Union bans 1,328 chemicals from cosmetics that are known or suspected to cause cancer, genetic mutation, reproductive harm, or birth defects. The FDA has only banned or restricted 11.
Under the Toxic Substances Control Act (TSCA), the Environmental Protection Agency can in some circumstances test consumer products and regulate ingredients. In 40 years, it has regulated five. And since women in the U.S. put an average of 168 chemicals—which is not to say they are necessarily unsafe—on their bodies every day, according to research by the nonprofit Environmental Working Group, this leaves American women exposed to more unknowns.
"It’s the Wild West when it comes to cosmetics," says Margie Kelly, a spokeswoman from Campaign for Safe Cosmetics.
Like organic food before it, natural beauty products are having a moment. It’s the fastest growing segment of the global personal-care industry, according to one study. H&M is starting an organic beauty line. The Environmental Working Group has a mobile app on which users can look up the safety score by scanning the barcode of beauty products.
Assaf and Krauss are taking part in the new opportunities this interest is creating and are slowly expanding BLT to—if not quite a full-fledged company yet—a more diverse business to extend their message.
Last summer, Assaf and Krauss did a Kickstarter that got 500 backers for two goodie bags full of natural supplies, a makeup kit, and a skincare kit. They bought the products in bulk and sold them at cost, which they say didn’t result in any profit for them.
And next month, Assaf and two classmates from Harvard are launching RAW IS EVERYTHING, a skincare line using one cold-pressed, unrefined oil per product. Krauss is their spokesmodel.
Krauss says they aren’t asking people to lower their standards, but are promoting a change in the way women think about their beauty routine. "You can’t look like Kim Kardashian with natural beauty supplies," Krauss says.
Even so, they say they aren’t trying to shame anyone into giving up their favorite lipstick. "We all make choices that aren’t healthy," Krauss says. "That’s okay."
Assaf and Krauss say their primary goal is to be a resource for women, so when they do go for that liquid eyeliner (a product that to date does not have a good natural beauty replacement), their purchase is an informed decision.
"This is a feminist issue," Krauss says. "It’s about control over our bodies."
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Why I Blocked An Oil Train — And Why You Should Engage In Climate Disobedience Too
Jan 27, 2016 | Grist
By Patrick Mazza
When the Delta 5 sat in front of an oil train at BNSF Delta Yard in Everett, Wash., on Sept. 2, 2014, we did not expect to stop climate disruption or dangerous fossil fuel shipments.
By ourselves, that is.
What we did expect was that our act of civil disobedience, positioning ourselves on a tripod and blocking an oil train, would help generate a rising crescendo of actions that could spur the public pressure needed to address those deadly threats. For many years, big money and corporate power have blocked large-scale climate action, so we believe that the shock, dissonance, and friction of nonviolent civil disobedience are needed to make the political system work again.
That was the essence of our “necessity defense” as we stood on trial earlier this month for allegedly trespassing and obstructing or delaying a train. The trial, which was held at a county district court in Lynnwood, Wash., from Jan. 11 to 15, marked the first time such a defense was presented in a U.S. climate or fossil fuel–connected civil disobedience case, and only the second climate necessity trial in the world. In 2008, Greenpeace climbers who scaled a coal plant stack in Britain were found innocent on the basis of climate necessity. Like those Brits, we argued that any crimes we committed were necessary to avert greater climate and fossil fuel harms.
Climate civil disobedience veteran Tim DeChristopher, who live-tweeted the event through the week, later set the trial in perspective. “In an American courtroom, activists were presenting the full case for how serious the climate crisis is, how much our government has entirely failed to address that crisis, and how powerful people can be when they step up to their responsibility to stand in the way of the fossil fuel industry.”
“It was one of the most coherent and comprehensive cases for climate action that I’ve seen anywhere,” DeChristopher continued. “It’s a tremendous resource for future activists taking their case to court.” Our arguments
In our testimony, the five of us recounted the range of legal actions we took to address climate and fossil fuel threats before we crossed the line. It was a sweeping inventory of legal citizen activism.
Mike Lapointe spoke of running the Firewheel Community Coffeehouse, an activist hotbed in Everett, Wash., and running for Congress to challenge Rep. Rick Larsen’s corporate power–friendly positions.
Retired music teacher Jackie Minchew told of his climate-centered run for Everett City Council and the numerous letters and op-eds on climate change that he’s had published in the local newspaper, as well as community gardening and logging 8,000 miles on an electric bike.
Abby Brockway, owner of a house-painting company, and educator Liz Spoerri talked of their multiple efforts to keep the Northwest from becoming a fossil fuel export corridor — writing letters, speaking at hearings, participating in legal protests.
My testimony covered my long history as a professional climate activist. A founder of the group Climate Solutions back in 1998, participant in legislative campaigns and consensus-building roundtables, coauthor of a book and writer of many papers on practical climate solutions from renewable energy and electrified transportation to natural carbon sequestration. I related how I am still working on those solutions through legal currents, and will continue to do so. But that is not enough.
As I told the jury, even though I have seen progress, it hardly approaches the towering challenge of climate disruption. I spoke of the need for a World War II–scale global mobilization to begin rapidly replacing fossil fuels with solar and wind energy, and to have the job largely accomplished by 2030. That is the only way we can hope to stay anywhere close to the 1.5°C limit on global warming set as an aspirational goal in the Paris climate agreement, the minimum needed to avert runaway climate change and disruption.
Achieving this global mobilization requires massive people power to overcome the power of corporations such as Exxon, now documented to have conducted research that accurately forecasted the impacts of climate change, and then to have waged a massive lie campaign to stop public action. And to spur this people-power revolution, we need the shock to the system provided by nonviolent civil disobedience. This was the case I made in my testimony and statements acting as my own attorney. (Here’s more on why I decided to engage in civil disobedience.)
Dr. Richard Gammon, a veteran climate scientist and our expert witness on the topic, reinforced the message. He noted that studies in the past two years indicate the tipping point to massive ice loss in the West Antarctic and Greenland has been crossed. Humanity faces major sea-level rise already.
Our fossil fuel train experts also laid out a powerful case. Eric de Place of Sightline Institute noted that the Northwest is in a strategic position, “pinched” between some of the world’s largest fossil fuel reserves and growing Asian markets. Some 20 proposed export projects in the region would ship enough fuels to generate five times as much carbon pollution as the now-cancelled Keystone XL Pipeline. He also recounted the railroad industry’s invention of a dangerous new animal since 2010: the bulk oil train that serves the shale industry. Derailments have caused 10 fiery explosions and numerous spills over the past few years.
Oil train safety expert Fred Millar noted that the speeds at which easily punctured oil tanker cars can run with any level of safety are far exceeded by the speeds railroads believe they need to travel to make money. He also eloquently testified to the capture of railroad regulatory agencies by the industry.
Bellingham physician Frank James told of the health threats caused by the standard leakage of 0.5 to 3 percent of oil carried by train.
BNSF whistleblower Mike Elliott testified about how he was fired after he pressed the railroad on serious safety violations. All options are needed to overcome the power of the railroad, said Elliott, who is now regularly up against BNSF power as a rail labor lobbyist working the Washington legislature. The outcome
In the end, the Delta 5 made third base, but we did not score the full home run. That would have been an instruction to the jury to consider the necessity evidence. Instead, Judge Anthony Howard ordered the six-member jury to disregard the necessity evidence and only consider the immediate circumstances of our act. Did we trespass? Did we obstruct or delay a train?
A necessity defense requires four elements. The judge said we met three. First, defendants believed there was a danger greater than the crime committed. Second, the danger was in fact greater than the crime. And, third, we did not cause the danger. But, in the judge’s view, we did not prove the fourth element, that there were “no reasonable legal alternatives.” We always knew that would be the hurdle. And from the judge’s comments, it appears that we made our case of imminent and avertable danger more on oil trains than on climate.
In the end, we were found guilty of second degree criminal trespass, for which we will be on probation the next two years, and innocent of obstructing/delaying a train. Ironically, though we intended to delay the oil train, the railroad said it was not leaving until later that night. Meanwhile, our attorneys proved to the jury that the five trains the railroad said we did delay were actually stopped by rail managers out of “safety” concerns.
Judge Howard did deliver some compliments even as he handed down his ruling: “Frankly the court is convinced that the defendants are far from the problem and are part of the solution to the problem of climate change … they are tireless advocates that we need in this society to prevent the kind of catastrophic effects that we see coming and our politicians are ineffectually addressing. People in the courtroom learned much, including the guy in the black robe.”
We defendants met some of the jurors in the hall outside after the verdict (here’s video). They assured us that we would have been found innocent on both charges if the jury had been able to consider necessity. All six plus the alternate were with us but were constrained by the very tight instructions given to them by the judge. They thanked us for what they learned, and one or two may accompany Brockway to the Faith Action Network lobby day in Olympia.
In my closing statement to the jury, I sought to empower them. I told them that jurors are the most powerful people in the courtroom, and that no one can second-guess them. But anything that hints at the power of juries to nullify instructions from judges is strictly verboten. When I told the jurors they could do anything they wanted to uphold justice, the prosecutor objected and the judge sustained.
I couldn’t justly tell this story without a large shout-out to our team of pro bono attorneys, Bob Goldsmith, M.J. McCallum, Bridge Joyce, and Evelyn Chuang. They did incredibly hard work and put in many hours thinking through legal strategies. They got us close. And Goldsmith’s old partner Jim Roe kicked it all off. Roe, who took on many pro bono civil disobedience cases, sadly passed away before the trial. Brockway sat with a picture of Roe at the defendants’ table next to me.
We were also backed by supporters who filled the courtroom every day. The Delta 5 expected a large first-day crowd, but not packed benches and even people sitting on the floor each day. Their presence heartened us.
In a way, the verdict is the best of both possible worlds, short of actually being exonerated under a necessity defense. The innocent verdict on train obstruction makes it less likely BNSF will be able to collect an $11,000 restitution claim against us. (BNSF owner Warren Buffett hardly needs the money.) Meanwhile, the guilty verdict opens the way for an appeal on the denial of necessity. And we will appeal. Judge Howard did face an imposing body of case law weighing against the necessity defense in civil disobedience cases. We hope to set new precedents that broaden the use of necessity. The need for civil disobedience
In planning my testimony, I strained the most to draw the connection that established the necessity of climate civil disobedience. I was least satisfied with this part of my testimony. We were trying to focus public attention, and we were trying to do it by gaining media coverage. I tried to explain the need for extraordinary acts to gain that attention. But it was not enough to pass the “no legal alternatives” bar. We are going to have to make a better case that draws out why civil disobedience is necessary even when there are legal avenues, how it is needed to make those legal channels work.
In that regard, one of the most important contributions of our trial might have been an insight from Tim DeChristopher. He has his own climate disobedience story. In 2008, he bid on a federal oil lease in Utah, aiming to prevent drilling on the land, even though he didn’t have the money to pay for it. As a result, DeChristopher was sent to federal prison for nearly two years. He wanted to conduct a necessity defense but was shut down by the judge. His experience is the topic of the movie Bidder 70.
In 2015, he founded the Climate Disobedience Center (CDC) to support climate civil disobedience and necessity defenses, along with Marla Marcum, Ken Ward, and Jay O’Hara. Ward and O’Hara in 2013 used a lobster boat to block a ship delivering coal to a Massachusetts power plant. Marcum organized support for the action. Theirs was the first U.S. climate civil disobedience necessity defense allowed in court. But as the trial started in 2014, the district attorney dropped the charges, said they were right, and went to march with them in the New York People’s Climate March the next week.
The Delta 5 were honored to be the first case CDC supported. They helped us prepare our communications and legal strategies and were with us in court.
As he watched our trial, DeChristopher had an epiphany about what makes civil disobedience uniquely necessary — what it does “that other forms of activism do not do, and why it has played such a central role in so many social movements.” As he told a post-trial gathering, “The intent of civil disobedience is to arouse the conscience of a community in order to build the kind of public pressure that is necessary to resist the corporate control of our government.” The essential act of nonviolent civil disobedience is deliberately placing one’s self in a vulnerable position. “That vulnerability rattles people out of their everyday lives,” which is just what is needed in “our apathetic, disengaged society. It does something entirely unique, and that answers the question of no legal alternatives.”
The response of the jurors to our case is strong evidence for DeChristopher’s insight. In our appeal, we will press the case for the unique and necessary role of civil disobedience in spurring the public conscience to move on climate and fossil fuel threats.
For years before our Delta 5 action, I experienced growing frustration at the repeated failures to pass legislation and enact policies that are bold enough to address the enormous threat of climate disruption. The recent Paris climate agreement underscores that — a 1.5°C aspirational goal accompanied by plans that put the world on course for 2.7 to 3.5°C global warming. That would guarantee sea-level rise of dozens if not hundreds of feet, dieback of a large portion of Earth’s species, and an acceleration of destructive storms and droughts.
Economists believe they can fit climate change into computer models and measure it in terms of dollars shaved from the gross domestic product. Historians know better. They have documented how rapid climate change disrupts human systems in ways that release the horsemen of the apocalypse — famine, pestilence, and war. I have been reading Global Crisis, a recent book about the impact of the Little Ice Age on the 1600s world when rapid global cooling caused chaos from China to Europe and up to one-third of the world’s people died. I believe humanity is on a similar course with rapid global warming. That is why I can no longer abide with business-as-usual politics that downplays the dangers or fails to mobilize the massive global action needed to avert them. That is why I crossed the line into climate civil disobedience.
We face a monumental political challenge of arousing the world to act in a very few years. But it is more than a political challenge. It is a moral-spiritual challenge that will require a revolution in values. We must move beyond mere intellectual and political approaches to a frankly spiritual activism, putting our bodies on the line, taking risks, making ourselves vulnerable, being prepared to make sacrifices. This, and only this, will move people to overcome the dark forces controlling the political system, enabling us to make the rapid changes we must to leave a world with which our children can cope.
It is up to us. The Delta 5 never expected to do it alone. We need you. Take action now. Cross the line. Disobey the law to follow a higher necessity. Do it soon. We don’t have much time left.
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Florida House Passes Fracking Bill, Preempts Local Bans
Jan 28, 2016 | BNA Daily Environment Report
By Chris Marr
The Florida House approved a bill to create state regulations for the oil and gas drilling technique known as fracking while preempting local government bans on the technique.
HB 191, which passed the House Jan. 27 by a vote of 73-45, temporarily prohibits high-pressure well stimulation while the state Department of Environmental Protection studies the practice and its potential environmental effects. The DEP then must write and adopt rules for a permitting process by March 1, 2018. The rules require ratification by the state Legislature.
Although environmental advocacy groups have urged the state to regulate hydraulic fracturing, such groups oppose HB 191 for various reasons, including their concern—disputed by the bill's sponsor—that the bill won't regulate a similar process called matrix acidization, said Jennifer Hecker, director of natural resource policy for the Conservancy of Southwest Florida.
“The bill is really meant to give false assurances to the public,” Hecker told Bloomberg BNA Jan. 25, ahead of the House floor vote. “Meanwhile it will be business as usual for the drillers, who can go on conducting these dangerous drilling techniques with little or no regulatory oversight.”
Sponsor: Acid Fracking Covered
Rep. Ray Rodrigues (R), a sponsor of HB 191, disputed Hecker's claim during House floor debate Jan. 26.
“This bill definitely covers acid fracking,” he said. “We purposely adopted a broad definition that would encompass hydraulic fracturing and acid fracking.”
The text of the bill defines high-pressure well stimulation as “a well intervention performed by injecting fluids into a rock formation at high pressure that exceeds the fracture gradient of the rock formation” to increase oil and gas production at the well.
Because of the softer, more porous limestone that is common in Florida, oil and gas drillers are more likely to dissolve the rock via acidization rather than using the higher pressure fracturing technique, Hecker said. Both techniques use similar chemicals, raising concerns about potential groundwater contamination and large volumes of freshwater usage and wastewater disposal, she said.
Industry advocates such as the American Petroleum Institute say acid treatments have been used safely in oil and gas wells for decades. Hecker said the claim is misleading, as acid cleaning techniques have been used for decades, but the acid stimulation technique that dissolves rock formations is relatively new and riskier.
2014 Incident Spurred Concerns
Hecker and others began pushing for fracking regulations in Florida in 2014 after an oil company was found to be using an acid treatment technique in Collier County, not far from the Everglades (113 DEN A-14, 6/12/14).
The driller, Dan A. Hughes Co., contended it hadn't broken any laws, as Hecker noted current Florida law doesn't require a separate permitting process for fracking, only a “workover notice” to the DEP after the company gets a conventional drilling permit.
“Unfortunately the bill that surfaced was an industry-friendly bill that did little to protect the environment,” Hecker said, noting the oil industry would still be allowed to keep secret the chemicals it uses, as many states allow.
Supporters Praise Good ‘Balance.'
Supporters of HB 191 and a similar bill being considered in the Senate, SB 318, said the legislation strikes a good balance between environmental protection and the economic benefits of oil and gas drilling.
Rep. Cary Pigman (R), another sponsor of HB 191, in responding to Democratic opponents who questioned whether fracking should be allowed at all in Florida, said fracking is not without risks, just as no industrial activity is without risk. Nevertheless, he said the bill is aimed at studying and minimizing the risks and comparing those with the potential economic benefits of allowing fracking.
Associated Industries of Florida, an influential business-community advocate, is one of a handful of business and industry groups expressing support for the legislation.
HB 191 “strikes the appropriate balance to protect and preserve Florida's environment, while also allowing a responsible industry to continue to explore and produce oil and gas here in the Sunshine State,” AIF said in a written statement dated Jan. 21, as the bill was advancing through legislative committees.
Relative to groundwater contamination concerns, Rodrigues said oil wells typically are drilled significantly deeper than the aquifer that provides drinking water to much of South Florida, suggesting the chances are low that fracking chemicals would seep into the aquifer.
Preemption Draws Opposition
HB 191 also faced opposition from the Florida League of Cities and the Florida Association of Counties due to the preemption of local ordinances governing oil and gas activities. More than 50 municipalities and counties in Florida have adopted ordinances restricting fracking or outright banning it, according to Democratic lawmakers who opposed the bill.
Rodrigues said the bill is only reinforcing existing state policy, arguing local bans on fracking wouldn't survive a court challenge under current Florida law.
“Regulation of oil and gas drilling has been preempted to the state since 1943. What local governments can do is regulate the zoning and land use planning,” he said.
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BLM Gas Waste Proposal Considers Royalty Changes
Jan 28, 2016 | BNA Daily Environment Report
By Alan Kovski
A proposed rule to reduce the waste of natural gas from federal and Indian lands opens a couple of doors to increased federal royalties.
The Bureau of Land Management proposal, Waste Prevention, Production Subject to Royalties, and Resource Conservation, would revise the way royalties are applied to wasted natural gas and would advance a step toward increasing royalties for the oil and gas that is produced and sold.
The rule, unveiled Jan. 22, was written primarily to reduce flaring, venting and leaking of gas (RIN 1004-AE14). Flaring typically occurs when an oil well is producing natural gas as a sidestream in a location where no gas pipeline is available to transport the gas to market. The flaring burns the methane and other gases to carbon dioxide. Venting usually is briefer, notably during well completion work.
The regulatory impact analysis accompanying the proposed rule said about 59 percent of the gas flaring from oil wells in 2013 occurred in North Dakota, 21 percent in South Dakota and 11 percent in New Mexico.
The oil-rich Williston Basin, including the Bakken Shale, spreads across much of North Dakota and part of South Dakota and involves much gas flaring because of the region's inadequate pipeline infrastructure. The San Juan Basin in northwestern New Mexico may be the primary source of flaring in that state.
Those areas presumably would see the primary impact of a change in new requirements to limit flaring. A potential change in royalties could affect far more areas and companies.
Sliding Scale for Royalties?
Under the Mineral Leasing Act, the royalty rate is fixed at 12.5 percent for noncompetitive oil and gas leases. For leases won through competitive bidding, the rate can be higher, but under existing regulations it is specified as 12.5 percent.
The proposed rule would rewrite the regulations to treat 12.5 percent as the minimum, opening the way for higher rates. The BLM said it was not proposing higher rates for now, but its discussion of the subject in the preamble of the proposed rule indicated a strong interest in some form of sliding-scale royalties that could reflect changes in commodity markets and could be progressive, keyed to the volume of the commodity.
The BLM said it was drawing its ideas from various sources, including a 2011 study by consulting company IHS CERA for the BLM and another 2011 study, called the Van Meurs Study, done by three consulting companies for industry sponsors. Both studies had favorable views of sliding-scale royalties, as summarized by BLM in the proposed rule.
In 2015, the BLM solicited public comment on possibilities for changes in royalties and various fees for oil and gas development (RIN 1004-AE41). Industry representatives warned that higher royalties and fees could suppress economic activity and reduce royalty revenues. Environmental activists enthusiastically endorsed increases in all of the costs being considered by the BLM (120 DEN A-4, 6/23/15).
Independent oil and gas producers fear that the BLM could be setting the stage for rate hikes in the future, said Dan Naatz, senior vice president of government relations and political affairs for the Independent Petroleum Association of America.
Kathleen Sgamma, vice president of government and public affairs at the Western Energy Alliance, an oil and gas association, said the Obama administration appeared to be looking only for higher royalty rates atop a wave of new regulations. On the idea of a sliding scale for royalties, she said, “I think we'd be more willing to talk about that if we saw some regulatory certainty on federal lands.”
Royalties for Some Flaring Wanted
Under the current applicable regulation, NTL-4A, gas can be flared royalty-free from an oil well if a company convinces the BLM that it would be uneconomical to build a small pipeline connection to the nearest main pipeline. Gas can also be used royalty-free at a well site for such purposes as power generation.
The company must show that requiring the gas to be captured would “lead to the premature abandonment of recoverable oil reserves and ultimately to a greater loss of equivalent energy” than what would be lost from flaring. It is assessed on a case-by-case basis and involves a substantial paperwork burden, according to the BLM.
The proposed rule would change that. There would be a limit on allowable flaring, set at 1,800 thousand cubic feet per month per well, averaged across all of the producing wells of a lease. That limit would apply in the third year of a phase-in period starting with the effective date of the new rule, as Interior Department officials explained when they unveiled the rule (15 DEN A-14, 1/25/16).
All flaring and venting of gas not judged by the BLM to be unavoidable would be subject to royalties. The BLM estimated the new method of applying royalties to flared gas could generate additional royalties of $9 million to $16 million a year. To put that in context, federal royalties from oil and gas in fiscal year 2014 amounted to $3.1 billion, the BLM said.
Flaring would be considered unavoidable if connected to emergencies, leaks, well drilling, well completion, well tests, dewatering of exploratory coalbed methane wells, venting from pneumatic devices in the normal course of operation, evaporation from storage vessels, downhole well maintenance and the unloading of liquids from gas wells. Flaring (or, in limited circumstances, venting) also would be deemed unavoidable at a well that is not connected to a gas pipeline.
Thousands of Wells Involved
The BLM said the proposed rule would reduce the venting, flaring and leaking of emissions of methane and volatile organic compounds from federal and Indian lands by an estimated 50 percent after the three-year phase-in.
The agency estimated the proposed flaring limits would affect 435 to 885 leases in any given year. The regulations to reduce leaks would affect up to 36,700 well sites, the agency said.
The proposal might reduce crude oil production by as much as 3.2 million barrels a year, but it would increase gas production for markets by up to 14.5 billion cubic feet (Bcf) a year and would increase the on-site productive uses of gas by as much as 41 Bcf a year, the BLM said.
While the flaring reductions were expected to have net financial benefits, the leak reductions were estimated to cost up to $70 million a year and have savings of up to $17 million a year.
For the measures on flaring and leaking, the proposed rule and its accompanying regulatory impact analysis also included estimated factoring in the Obama administration's assumptions about the “monetized” benefits of reduced methane emissions and reduced carbon dioxide emissions, calculations that produced much higher financial benefits.
Gas Losses Already Declining
Companies already have been reducing their venting, flaring and leaking of gas and have an economic incentive to continue doing so, as their trade associations are quick to remind the BLM. The agency did not dispute the point in its proposed rule but indicated it wanted to accelerate the trend.
The BLM proposal will require best practices to minimize venting of gases during oil or gas well development. It would push companies to replace older equipment with better equipment and would involve the use of better leak detection technologies such as infrared cameras.
The BLM will hold public meetings on the proposal in February and March and is aiming to complete the rule by the end of 2016.
“Realistically, they don't have time to do it in a deliberative manner,” the Western Energy Alliance's Sgamma said of the rulemaking. Because of that, it will be legally vulnerable, she said.
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BLM, State Methane Plans Could Boost Call For EPA Existing Source Rule
Jan 27, 2016 | InsideEPA
By Bridget DiCosmo
Environmentalists say plans by the Bureau of Land Management (BLM) and states such as California and Pennsylvania on cutting methane emissions from the natural gas sector could boost their call for EPA to promulgate first-time methane limits on existing drilling operations after it finalizes a methane rule for new drilling.
The plans by the states, which also include Colorado, will only address drilling operations that those states have power to regulate, says one environmentalist. Similarly, the BLM regulations proposed Jan. 22 would regulate venting, flaring and leaks at oil and gas operations to cut methane, but only apply on federal lands. The plans therefore represent “only a small slice of the industry,” whereas an EPA rule could cover all drilling, says the source.
Further, the efforts by states and BLM to regulate existing drilling shows that such rules are feasible, the source says. “We think the actions by Colorado, Pennsylvania, BLM and soon California all show that regulating existing sources is perfectly feasible, and that EPA needs to step up its game and act,” adds the source.
In a Jan. 26 report, “Mind the Gap,” Clean Air Task Force says EPA's proposed rule to cut methane emissions from new drilling will still leave an “emissions gap” of 75 million metric tons of carbon dioxide equivalent reduction in methane emissions, preventing the administration from meeting its stated goal of 40-45 percent reduction of methane by 2025.
“The good news is that the Administration has the opportunity to meet its methane reduction goal by issuing strong existing source methane rules this year,” the report says. The report also says that existing source rules will need to require the use of some control technologies absent in the new source performance standards (NSPS) proposal, such as non-emitting technologies and devices to reduce venting from liquids unloading.
The report urges EPA to craft rules for existing drilling that require monthly or quarterly leak surveys to find and fix leaks throughout the sector, including distribution; controls for older equipment, including existing compressors and automatic pneumatic valve controllers; and controls for intentional release of gases from oil and gas wells and from liquids unloading.
Existing Sources
While the agency is seeking to regulate the potent greenhouse gas (GHG) methane for the first time under its proposed NSPS for new oil and gas drilling under Clean Air Act section 111(b), EPA to date has demurred on environmentalists' calls to regulate methane from existing sources under section 111(d) authority.
Environmentalists have argued that under the Clean Air Act, once EPA sets regulations for new and modified sources under section 111(b), the agency "shall prescribe regulations" that would require states to craft plans for meeting standards for existing sources under section 111(d). EPA has regulated GHGs from new power plants under NSPS authority and also issued a separate GHG rule for existing utilities under section 111(d).
But EPA officials have indicated they will hold off on crafting section 111(d) regulations for the oil and gas drilling sector despite proposing an NSPS to curb emissions of the potent GHG methane from new drilling.
Advocates are reinvigorating their push following the announcement of the methane plans by states and BLM, saying such proposals show EPA that effective controls to cut existing sources' emissions are feasible.
In addition to BLM's proposal, Pennsylvania Department of Environmental Protection Jan. 19 unveiled its plan for new statewide regulations curbing methane from oil and natural gas wells, pipelines and other sources, including plans to regulate a host of existing sources. Similarly, California's pending methane rules are also expected to address existing sources, and Colorado is also looking to curb emissions from existing drilling.
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2016 Starts With Growing Momentum To Cut Oil And Gas Methane Pollution
Jan 27, 2016 | Environmental Defense Fund
By Felice Stadler
We’re less than a month into 2016, and there are already signs that this could be the year the United States finally gets serious about addressing methane pollution from the oil and gas industry.
Some strong first steps in 2015 got the ball rolling, and now attention-grabbing events like the massive methane leak in Southern California and the announcement that 2015 was the warmest year on record are opening people’s eyes to the urgency of tackling this potent climate-forcing pollution.
Great Strides Made in 2015
Many important first steps to curb oil and gas methane pollution were taken in 2015, most notably, the Obama administration setting a goal of reducing this pollution 40 to 45 percent by 2025. To help achieve this goal, the U.S. Environmental Protection Agency (EPA) in August proposed a national methane emissions standard for newly built oil and gas sources. The proposal received overwhelming support; nearly 850,000 comments in support of the rule were submitted to the agency: Investors and businesses big and small weighed in as well as national Latino organizations, civic leaders representing impacted communities, and state officials and editorial boards from oil and gas producing states.
The need for national action was further reinforced in 2015, with the release of new scientific studies (as part of an EDF-led 16 part research effort) that revealed methane emissions in some locations are higher than what’s being reported in current federal inventories, and that these emissions are prevalent throughout the oil and gas supply chain. We have a bigger pollution problem on our hands than we thought, so we need to be bolder in our response.
Problems – and solutions – already seen in 2016
As 2016 began, we were starkly reminded of the need to take oil and gas methane pollution seriously as a natural gas storage well outside of Los Angeles continued to leak staggering amounts of methane pollution into the atmosphere. The leak has put the industry’s unchecked methane pollution problem in the national spotlight, opening people’s eyes to a problem that is occurring every day across the country unbeknownst to many.
But here’s the good news: While awareness is growing, so is action to address the problem. Just weeks into the new year, states and the federal government have stepped up in their commitment to addressing methane pollution from today’s oil and gas infrastructure.
Last week, Pennsylvania, the nation’s second largest natural gas producer, released a concept paper that lays out their intention to set methane limits across the natural gas supply chain—positioning the state as a leader and setting a model for national action.
Days following Pennsylvania’s announcement, the Bureau of Land Management proposed its long awaited rules to curb methane emissions by setting limits on wasteful venting and flaring of natural gas., This rule tackles both new and existing infrastructure and, once implemented, could cut up to $168 million in taxpayer and tribal-owned natural gas that’s wasted every year—and have short term climate benefits equivalent to taking nearly 3 million cars off the road.
But the job is far from done…
We applaud these actions, and the early 2016 momentum has been impressive. But it’s clear that much more needs to be done to realize the opportunity methane reductions present to slow down the rate of warming.
Even with all that’s been proposed, the vast majority of methane emission sources in the United States (roughly 70 percent) would remain unregulated under the rules as they’re currently written. More needs to be done by the administration—we can’t rely on the oil and gas industry to fix this problem voluntarily. And while states can be a model for national action, we need national standards to ensure that all communities receive the clean air protections they deserve.
It’s increasingly urgent, and apparent, that additional action by EPA is needed. Momentum from the recent breakthrough agreement in Paris, coupled with overwhelming support for EPA’s proposed new source rule and a boost from early 2016 action, gives EPA has a solid foundation to move forward with setting strong, common sense rules for existing oil and gas operations.
With readily available solutions and growing support among policy leaders and the general public, there’s no reason to wait. We have a golden opportunity to change the global warming trajectory right now—one that could be measured in my children’s lifetime! Let’s not wait and squander this opportunity.
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Energy Bill Consideration Begins
Jan 28, 2016 | BNA Daily Environment Report
By Ari Natter
The Senate began consideration of what could be the first major energy bill in nearly a decade Jan. 27, an effort that was expected to draw Republican amendments that would roll back the Obama administration's Clean Power Plan and other environmental rules.
The five-part legislation (S. 2012), which includes a measure to expedite the federal approval process for liquefied natural gas exports, received an early boost after the White House stopped short of issuing a veto threat for the legislation and Senate Democrats announced they wouldn't block the bill from moving forward.
“I hope we can get this done, and I think there is no reason why we shouldn't be able to,” Senate Minority Leader Harry Reid (D-Nev.) said in floor remarks. He added the bill would accomplish a number of Democratic priorities, including permanent reauthorization of the Land and Water Conservation Fund.
He said it also incorporates the bulk of long-stalled energy efficiency legislation (S. 720) as well as increased funding for energy research and clean vehicles.
The White House, in a Statement of Administration Policy, also said it supported aspects of the legislation, such as the reauthorization of funding for weatherization assistance and state energy programs, as well as support for geothermal energy and energy job-training programs.
No White House Veto Threat
But the White House also outlined a number of concerns with provisions in the bill that would eliminate Energy Department programs designed to increase energy efficiency at manufacturing facilities and eliminate independent certification requirements for Energy Star products.
“The Administration looks forward to working with the Congress to address these and other concerns as the bill moves through the legislative process,” the White House said.
The underlying 424-page bill, which was approved by the Senate Energy and Natural Resources Committee on an 18-4 vote last July, includes a wide range of provisions that would increase cybersecurity protections for the electricity grid and expedite the licensing process for hydropower projects. If enacted into law, it would be the first broad rewrite of energy policy since the Energy Independence and Security Act of 2007 (147 DEN A-4, 7/31/15).
But the legislation quickly became a prospect for controversial amendments that could strip Democratic support if adopted.
Among them were measures that would “rescind” the Environmental Protection Agency's Clean Power Plan and waters of the U.S. rule, Sen. John Hoeven (R-N.D.) told reporters Jan. 27.
Power Plan, WOTUS Amendments Possible
“All of those I will either offer or I will work with someone else if they want to offer it,” Hoeven said.
The rules frequently have been the target of Republican attacks but are priorities for the Obama administration and congressional Democrats. The Clean Power Plan sets unique carbon dioxide emissions rates or alternatively mass-based emissions targets for the power sector in each state (RIN 2060-AR33). The Clean Water Rule, also known as the waters of the U.S. rule, seeks to clarify which tributaries and wetlands are subject to Clean Water Act jurisdiction (RIN 2040-AF30).
Other amendments Hoeven said he would file include a measure barring the EPA from regulating coal ash as a hazardous waste and that would expedite the federal permitting process for future cross-border energy projects such as oil and gas pipelines and electricity transmission lines.
Democrats are planning an amendment or series of amendments related to the water crisis in Flint, Mich., where the city's water supply was contaminated with lead, Reid told reporters after a Democratic caucus meeting. More details were expected to be revealed Jan. 28 by Michigan Democrats Sens. Debbie Stabenow and Gary Peters.
As of early afternoon Jan. 27, more than 60 amendments had been filed to the bill, including measures by Sen. Bill Cassidy (R-La.) that would block the Interior Department from finalizing new standards for blowout preventers and that would repeal the renewable fuel standard.
Poison Pill Avoidance
In a floor speech, Sen. Lisa Murkowski (R-Alaska), chairman of the Senate Energy and Natural Resources Committee and author of S. 2012, urged fellow senators to keep the bill free of “gimmicks or ‘gotchas’ or poison pills.”
“There are possibilities all over, energy-related and non-energy-related, and I think we recognize any time you have an open amendment process stuff can happen,” Murkowski told reporters. “My job and the job of Sen. [Maria] Cantwell is to manage that.” Cantwell (D-Wash.) is the ranking member of the committee.
The Senate is expected to finish consideration of the bill sometime the week of Feb. 1, according to Senate Majority Leader Mitch McConnell (R-Ky.).
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Old And New Fights Emerge On Senate Floor
Jan 28, 2016 | E&E Daily News
By Geof Koss and Hannah Hess
Senators from both parties are planning a slew of amendments to the chamber's bipartisan energy bill reflecting both recurring fights over administration policies as well as new battles over recent developments in the energy arena.
At noon, lawmakers are set to cast the first of two votes on amendments scheduled last night.
First up is a bipartisan nuclear energy proposal, S. 2461 from Sen. Mike Crapo (R-Idaho). The amendment would require the Department of Energy to work with private partnerships to test and demonstrate new reactor concepts.
Then, Democrats who favor strong action on climate get a vote on an amendment designed to highlight their cause. The Senate will vote on a measure to boost funding over the next five years for DOE's Advanced Research Projects Agency-Energy, or ARPA-E, a program central to the Obama administration's climate plan.
Despite desire to pass a bill that President Obama will sign, Sen. John Hoeven (R-N.D.) said amendments to rescind U.S. EPA's Clean Power Plan and Clean Water Act jurisdiction rules are likely, with proposals to hand states primacy in regulating fracking and overhauling the permitting process for energy infrastructure projects that cross the United States, Mexican and Canadian borders coming, as well.
"I think you're going to see all of those offered," he told reporters yesterday. "I think the sense is we'll try to go through regular order. Let people offer amendments and see what can get 60. And frankly, if you can get 60 votes on an amendment, it should ultimately help the bill because it creates some bipartisan support. And that's the main focus here."
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said that she and bill manager Maria Cantwell (D-Wash.) have their work cut out for them in managing a wide range of controversial proposals.
"There are possibilities all over," Murkowski told reporters yesterday, "energy-related and non-energy-related, and I think we recognize that anytime you have an open amendment process, stuff can happen."
Murkowski said, "So my job and that of Senator Cantwell is to manage that, and what we're also trying to do is manage expectations. We want to make sure that we're going to have a process that is equal to what we ... demonstrated within the committee itself. It's not necessarily easy, but it is possible. We demonstrated it with Keystone XL itself, and we're going to do that with this one." Old fights
From the amendments filed yesterday, it's clear that some longstanding policy fights may resurface over the next week as the chamber debates the bill.
Pressed on the administration's reservations on hydropower provisions in the bill, Murkowski said she's happy to discuss the issue with the White House (E&ENews PM, Jan. 27).
"Well, then, I would love to have that conversation with President Obama himself in terms of the enormous potential that we have out there," she said. "In terms of what more we can do, we can electrify existing dams. We don't need to do new dams, but we can gain more out of the existing infrastructure. So talk to me about that, and tell me what you don't like about the idea."
In addition to the Clean Power Plan, Sen. Bill Cassidy (R-La.) has filed an amendment to "harmonize" the 2008 national ozone standard with the update finalized last year, by giving states and industry leeway in meeting the new standard.
Cassidy also filed an amendment to repeal the renewable fuel standard. He said there should be a debate on the mandate, which set annual goals to boost biofuel production to 36 billion gallons a year by 2022.
"It's terrible for the environment," said Cassidy, as Sen. Al Franken (D-Minn.) -- a strong supporter of the RFS and former "Saturday Night Live" comedian -- jokingly pretended to strike him in the back. "We've got a dead zone in the Gulf of Mexico from all of the fertilizer spewing down the Mississippi."
But Sen. Heidi Heitkamp (D-N.D.) downplayed the possibility that an RFS repeal provision would go far.
"I think so far, the RFS stuff has really not been touched by either side," she said. "There's a lot of people here who would like to revisit that policy; I'm not one of them."
Heitkamp said she expected amendments on "all of the issues that people had hoped would find their way on the omnibus but didn't," including the Obama administration's Waters of the U.S. rule and clean coal provisions.
Sen. Ed Markey (D-Mass.) has filed an amendment that would make Canadian oil sands subject to a federal excise tax that helps pay for oil spills -- addressing an issue he has long fought for.
Sen. Rob Portman (R-Ohio) said he is optimistic that the bill that passes will include the entire energy efficiency measure that he and Sen. Jeanne Shaheen (D-N.H.) have labored on for years. The bill came to the floor twice in the last Congress but was sunk by amendment fights.
"This is the third time we've brought it to the floor, and I think third time is going to be the charm," he said yesterday.
Sen. Brian Schatz (D-Hawaii), who offered the ARPA-E amendment up for a vote this afternoon, said he and other Democrats who favor strong action on climate are discussing amendments to highlight their cause.
ARPA-E would see a boost over the next five years under the amendment, beginning with $325 million for fiscal 2016. The program is key to the Obama administration's participation in "Mission Innovation" -- a plan for 20 countries to collectively double spending on clean energy from $10 billion to $20 billion, with the United States providing half the total (see related story).
Schatz also offered an amendment to phase out tax preferences for fossil fuels and an amendment that would mandate that EPA propose new methane emissions standards for existing sources in the oil and natural gas industry.
Yesterday, Schatz signaled that the approaches would differ from the amendments they offered during last year's debate on the Keystone XL pipeline.
"We want to cover new ground," Schatz told reporters. "Some of these amendments may fail, but we still want to advance the conversation and continue to lay the predicate that we need rational Republicans in the Senate if we're going to solve the problem." New fights
But the amendment offerings will also address new energy controversies, as well.
Sen. Angus King (I-Maine) is working with Minority Leader Harry Reid (D-Nev.) on an amendment to address the fight over net metering -- which has roiled Nevada and a number of other states.
"We're working on something right now," King said yesterday, adding that the amendment will include parts of a bill to encourage distributed generation that he offered last year.
Republicans also have filed a number of amendments requiring economic analyses of various administration proposals.
One such amendment, offered by Environment and Public Works Chairman James Inhofe (R-Okla.), would require EPA to prepare a study of the economic and environmental effects of the final rule for carbon emissions from existing power plants. A second Inhofe amendment would require the Federal Energy Regulatory Commission to conduct an independent reliability analysis of the rule.
Other amendments target the regulatory process more broadly, including one from Sen. Dan Sullivan (R-Alaska) that would require agencies to repeal or amend one or more regulations before issuing or rewriting a regulation.
Sen. Joe Manchin (D-W.Va.) last night said he was still hoping to offer a handful of coal-related amendments, including one to protect the United Mine Workers of America's imperiled benefits plan.
"We've been trying every way possible to get that in. I think there's still talks going on, hopefully constructive talks, and it's just there's a few things that we have to maybe work on to get all the sides together on. But it's something so needed," Manchin said.
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White House Stops Short Of Veto Threat Of Senate Bill
Jan 27, 2016 | E&E News PM
By Geof Koss and Hannah Hess
The Obama administration today outlined a list of objectionable provisions in the Senate's bipartisan energy bill but stopped short of threatening to veto the measure.
The White House, in a statement of administration policy, lauded the bipartisan support for the package, S. 2012, which includes multiple provisions to address efficiency, infrastructure, energy supply and conservation.
"The Administration believes that these are important issues and supports some provisions of the legislation," it said, singling out the permanent reauthorization of the Land and Water Conservation Fund and Historic Preservation Fund, as well as the new Park Maintenance and Revitalization Fund.
Also drawing presidential praise were weatherization assistance, state energy programs, geothermal energy and energy job training -- "all of which support the President's Climate Action Plan."
The White House's list of troublesome provisions is much longer. The president's advisers expressed concern about the budgetary effects of energy savings contracts, a repeal of Department of Energy programs to help manufacturers save energy and the elimination of DOE oversight of national laboratories' technology demonstration.
The White House also questioned the elimination of independent certification requirements for some Energy Star products, some cybersecurity provisions and sections aiming to streamline the environmental review process under the National Environmental Policy Act.
And while the administration said it supports hydropower, its policy statement on the energy bill cited concerns about implementation of relicensing provisions.
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) had not seen the statement but was relieved when told it doesn't contain a veto threat.
"Woo-hoo!" she told reporters.
Murkowski said "we shouldn't be afraid" of amendments, even as both sides readied a wide variety of proposals for the floor. Senate Majority Leader Mitch McConnell (R-Ky.) said he expected the chamber to complete work on the bill next week.
Lawmakers on both sides of the aisle continue filing amendments, including a proposal from Sen. Orrin Hatch (R-Utah) to block the administration's moratorium on coal leasing on federal lands (Greenwire, Jan. 27).
Sen. Bill Cassidy (R-La.) filed an amendment to repeal the federal renewable fuel standard, although he told reporters it may not be considered germane to the underlying bill.
Minority Leader Harry Reid (D-Nev.) said he hoped Republicans would refrain from offering "poison pill amendments," adding that Democrats would have their own proposals ready as well.
"Republicans offer amendments; we're going to offer amendments," Reid told reporters. "That's what we do here. We legislate."
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Coalition Of States Seeks Supreme Court Stay Of ESPS
Jan 27, 2016 | InsideEPA
As expected, West Virginia is leading a coalition of 26 states to ask the Supreme Court to stay EPA's existing source performance standards (ESPS) power plant greenhouse gas rule, after an appellate court last week denied opponents' petitions for a stay of the rule pending judicial review.
In a Jan. 26 application to Chief Justice John Roberts, the state coalition doubled down on prior arguments supporting a stay, emphasizing the “massive and irreparable harms” states will face absent a delay of the rule's implementation, “as well as irreversible changes in the energy markets.”
The application to the high court follows a Jan. 21 order from the U.S. Court of Appeals for the District of Columbia Circuit denying opponents' several motions to stay ESPS.
“In light of the present and ongoing harm from the Plan, this application is being submitted as soon as practicable following the D.C. Circuit's denial of those motions for a stay late in the day last Thursday,” the states write in their application.
The move comes amid comments from West Virginia Attorney General Patrick Morrisey (R), who had earlier said he was considering asking the high court to stay the rule. “A favorable Supreme Court decision at this time would freeze EPA's [rule] and protect workers, job creators and state agencies from spending untold resources to comply with a rule that is likely to be struck down as illegal,” he said in an earlier statement.
Coal miner Murray Energy also said in a statement that it planned to appeal the decision to the high court, though it has not yet filed such a motion.
In their application, states frequently cite the Supreme Court's decision last year in Michigan v. EPA as a cautionary tale. They note that states and utilities shuttered coal plants to comply with EPA's mercury rule for power plants only to have the high court find that the agency had failed to adequately consider costs when making a threshold determination.
“As in Michigan, EPA will have accomplished much of its objectives even if this Court ultimately declares that the agency did so illegally, in contravention of the [Clean Air Act] and the Constitution. Indeed, the fundamental changes to the Nation’s energy policy that EPA would unlawfully achieve here without a stay would eclipse what it did in Michigan,” the states write in their application.
In addition, the states argue there is a reasonable chance the Supreme Court would find the ESPS unlawful, making a stay even more prudent.
“There is at least a fair probability that if the D.C. Circuit upholds the [ESPS], 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,” they write.
The states' application was delivered to Roberts, who likely will seek a response from EPA before making a decision, according to an industry lawyer. “He's not going to decided until EPA has a chance to respond, so I don't know how quickly that will happen,” the source says, noting it could take a few weeks.
Roberts could then grant the stay on his own, the source continues, though such an action would be subject to a vote by all the high court justices, “so he will almost certainly refer this to the full court.” The court likely would review the briefs and vote on whether to grant the stay -- though it is unclear whether that vote will be made public.
One environmentalist, though, dismissed states' application to the high court, saying that going to the circuit justice, which in this case is Roberts, “doesn't seem productive.”
Environmentalists, as well as the administration, cheered last week's court action. One environmentalist said that while many of the rule's critics have been claiming EPA overreached, the court's decision “deflates the political opponents because you can only make claims like that for so long.”
Texas has also assumed a leading position, along with West Virginia, in the ESPS stay litigation. The states are joined in their application by: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming.
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Utilities, Industry Join States' Bid For Supreme Court Stay
Jan 27, 2016 | E&E News PM
By Robin Bravender
Utilities and industry groups have joined more than two dozen states asking the Supreme Court to halt U.S. EPA's Clean Power Plan.
Their requests were filed today as Chief Justice John Roberts today asked the government to respond to those asking his court to block the Obama administration's signature climate rule. Roberts asked for a response by 3 p.m. Feb. 4, according to the Supreme Court's public information office.
Utilities and industry groups the Basin Electric Power Cooperative, Alabama Power Co., the American Public Power Association, the Utility Air Regulatory Group and many others opposed to the rule filed an application asking Roberts to halt the rule while litigation proceeds.
A separate stay application was filed with the Supreme Court this afternoon by the U.S. Chamber of Commerce, the National Association of Manufacturers and other industry groups. Mining industry representatives filed yet another motion asking the high court to stall the rule, according to the chamber.
The U.S. Court of Appeals for the District of Columbia Circuit last week denied requests to freeze the rule, so critics of the regulation -- aimed at slashing power plants' greenhouse gas emissions -- are asking the Supreme Court to step in.
"Because of the time it will take to litigate the case, absent a stay EPA likely will obtain its desired transformation of the power sector through irreversible investments, even if its rule is ultimately struck down," the utilities said in the application filed today.
Led by West Virginia, 25 states yesterday made a similar request to the high court (Greenwire, Jan. 27).
Click here to read the utilities' application.
Click here to read the applications from the chamber-led industry groups and coal and mining groups.
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Carbon Trading Illegal in Federal Plan, States Argue
Jan 28, 2016 | BNA Daily Environment Report
By Andrew Childers
A proposed federal plan to implement the Environmental Protection Agency's carbon dioxide standards for power plants is an illegal attempt to impose a cap-and-trade program expressly rejected by Congress, states leading legal challenges to the program said.
“But now, the administration through the EPA is attempting to achieve the same goal using its claimed authority in Section 111(d) of the Clean Air Act to force upon states a Federal Implementation Plan that effectively imposes a carbon trading regime,” the states, led by West Virginia, said in their comments on the proposed federal plan released Jan. 27. “Of course, if such legal authority actually existed in the CAA, the administration's attempt to persuade Congress to enact nearly the same policy by legislative enactment would have been entirely unnecessary.”
The House, under Democratic control in 2009, passed a cap-and-trade bill co-authored by then-Reps. Henry Waxman (D-Calif.) and Edward Markey (D-Mass.), but the legislation died in the Senate in 2010.
The EPA has proposed the federal plan (RIN 2060-AS47; 80 Fed. Reg. 64,966) as part of its Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions limits on the fleet of existing power plants. State regulators are charged with implementing the rule, but the EPA would impose a federal plan on states that do not submit adequate plans of their own. The federal plan is also intended to serve as a guide to states as they develop their own compliance strategies.
The comment period on the proposal closed Jan. 21.
States and utilities in the comments on the proposal have urged the EPA to subject every federal plan for a state to a public notice and comment period and take additional steps to ensure that grid reliability will be maintained (16 DEN A-1, 1/26/16).
The latest comments were filed by West Virginia, Alabama, Arizona, Arkansas, Florida, Georgia, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Wisconsin and Wyoming. as well as the Arizona Corporation Commission, Mississippi Department of Environmental Quality, Mississippi Public Service Commission, New Jersey Department of Environmental Protection, and North Carolina Department of Environmental Quality.
Exceeds Statutory Authority
The states argue the EPA's proposed federal plan is illegal because Section 111(d) only allows the agency to propose a federal plan that is applicable at the regulated industrial source in the event that a state chooses not to submit its own plan. The proposed federal plan, by contrast, would achieve the required emissions reductions by shifting electricity generation from coal-fired power plants to less polluting options such as natural gas power plants and renewables rather than directly regulating the coal plants themselves.
“In contrast, the proposal's mass-based trading scheme does not set standards of performance for sources at all and sets, instead, statewide emissions caps,” the states said. “The proposal also requires emissions credits and allowances based on the Power Plan's Buildings Blocks two and three, which are not measures of a source's ‘performance,' but substitutes for fossil-fuel fired energy. In these two ways the proposal goes well beyond regulating the efficiency of individual power plants and is fundamentally inconsistent with the Section 111(b) rule's new source performance standards. There is no statutory basis for these two vastly different approaches.”
The Clean Power Plan is being challenged in the U.S. Court of Appeals for the District of Columbia Circuit by 27 states, including many of those now opposing the EPA's proposed federal plan. D.C. Circuit has denied requests to stay implementation of the rule pending the outcome of the litigation (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued, 1/21/16).
Many of the same states have asked the U.S. Supreme Court to overturn D.C. District Court's decision (West Virginia v. EPA, U.S., 2016); (17 DEN A-14, 1/27/16).
Another 60 utilities and union groups, several business groups including the U.S. Chamber of Commerce and American Fuel & Petrochemical Manufacturers, and coal and mining companies and associations also petitioned the Supreme Court Jan. 27 to stay the Clean Power Plan during the upcoming litigation.
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EPA Fights Push To Keep Utility MACT Suits In Abeyance
Jan 27, 2016 | InsideEPA
EPA is fighting the power sector's bid to keep some challenges to provisions in its reconsidered utility maximum achievable control technology (MACT) in abeyance, saying it would best serve “judicial economy” to hear all those challenges now rather than wait for the agency to issue a related final cost review of the regulation.
The Utility Air Regulatory Group (UARG) and Pennsylvania power generator ARIPPA are urging the U.S. Court of Appeals for the District of Columbia Circuit to keep the suits over various provisions in the rule in abeyance until EPA finalizes its proposed cost review. The agency issued the review to satisfy a Supreme Court mandate to consider costs in its initial finding that the rule is “appropriate and necessary” under the Clean Air Act.
But the Department of Justice (DOJ) on EPA's behalf counters that the provisions at issue in the currently delayed lawsuits are distinct from the cost review debate, and that the suits should be removed from abeyance.
In a Jan. 27 filing in ARIPPA v. EPA, et al., which consolidates four separate challenges to EPA’s MACT rule reconsideration over specific technical issues, DOJ says it opposes separating the issues in the suit or slowing down litigation.
The cases had been on hold pending a decision from the D.C. Circuit on how to proceed with the primary litigation over the MACT, White Stallion Energy Center v. EPA, on remand from the Supreme Court's ruling on the cost review issue, but EPA Jan. 14 asked the court to proceed with those challenges.
The Supreme Court in a 5-4 ruling in June agreed with industry critics of the rule that the agency should have considered compliance costs in its finding that the rule is appropriate and necessary, a prerequisite to issuance of the MACT. The high court then sent litigation over the MACT back to the D.C. Circuit, which had previously ruled 2-1 to broadly reject all challenges to the rule, also known as the Mercury and Air Toxics Standards (MATS).
In a Dec. 15 order the appellate court then granted EPA's request to remand the rule to the agency and not vacate it while EPA works on finalizing an assessment of the costs of the rule as part of the cost review.
EPA then moved to proceed with briefing in ARIPPA, in which the Pennsylvania power generator raises issues specific to its use of coal waste to generate electricity, which it says is unfairly disadvantaged by the rule. UARG, representing other utilities, challenges EPA’s emissions data and consequent cancer risk estimates for hazardous air pollutants other than mercury. Both want the cases to continue to be held in abeyance
But DOJ in the new filing says the supplemental cost review is not a reason to keep delaying the suits. “The issues presented by the petitions for review are ripe for decision now and dividing the case into segments to be briefed and argued on different schedules is an inefficient use of the resources of both the Court and the parties,” DOJ says.
DOJ adds that, “[J]udicial economy is best served by moving forward with the case as a whole and because the issues raised in this case have no bearing on issues that may be raised in relation to the Supplemental Finding. UARG and ARIPPA’s primary argument is that it would be inefficient to litigate claims that might become moot because of future proceedings on the Supplemental Finding. While that argument might have some merit if all petitioners had agreed to continue to hold their cases in abeyance, it has little or no weight here where the Court has remanded the matter to EPA without vacatur, allowing the MATS Rule to remain in effect, and two of the four petitioners seek to have their petitions heard because the Rule is impacting them.”
The issues raised by UARG and ARIPPA are, DOJ argues, entirely separate from the cost consideration raised by the revised appropriate and necessary finding. DOJ says the issues raised by the two groups should have been addressed in comments on the MACT rule, and “nothing in the Supplemental Finding has any bearing on whether the Agency provided sufficient notice and comment opportunity.”
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SEC May Seek More Climate Change Disclosure
Jan 28, 2016 | BNA Daily Environment Report
By Dave Michaels
The Securities and Exchange Commission is weighing new requirements for public companies to make more frequent disclosures about climate change, Chairman Mary Jo White said.
The disclosure of climate-change as well as cybersecurity risks is part of a broader review of financial reporting rules, White said Jan. 26 at a Northwestern University Law School conference in Coronado, Calif.
The broader review is an “opportunity to look at the current state of disclosure in all areas, see what it is, and see if there is room to improve it,” White said.
In 2010 and 2011, the SEC issued guidance to public companies explaining how they should approach disclosure of direct costs and other risks related to climate change (17 DEN A-1, 1/28/10).
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The Flint Water Crisis Is Coming to the Senate
Jan 28, 2016 | National Journal
By Jason Plautz
The water crisis that has left thousands with lead-poisoned water in Flint, Michigan is making its way to the Senate floor.
Democratic Sens. Gary Peters and Debbie Stabenow of Michigan plan to introduce an amendment Thursday related to the Flint crisis to the bipartisan energy bill under debate this week. Peters declined to give details Wednesday evening, saying it was still a “work in progress.”
Aides said specifics of the amendment would be released Thursday.
The amendment is meant to address the drinking water crisis that’s engulfed Michigan and been linked to serious health problems in thousands of Flint residents.
Peters and Stabenow, along with Michigan Rep. Dale Kildee, announced separate legislation Wednesday that would require the EPA to notify residents of any danger from lead in their water system and to release results of any lead monitoring conducted by public-water systems. The bill, Stabenow said, would give the federal government “clear legal authority to provide notice to the public when a state is not taking action on a public-health-safety crisis.”
The EPA had been aware of elevated lead levels in the Flint water supply as early as April, but a regional official stayed silent because she was unsure if she could force legal action. Region 5 administrator Susan Hedman, who oversees the Midwest, resigned her post last week over the incident.
It’s unclear if the Senate amendment will mirror that bill or go beyond it; Peters only said that the amendment would be “broad.”
There’s also no guarantee that the Democrats’ amendment will even get a vote. Senators have already flooded the bill with dozens of amendments on the renewable fuel standard, EPA climate standards and coal policy, among other issues. Energy and Natural Resources chairman Lisa Murkowski and ranking member Maria Cantwell both said Tuesday that they don’t want to laden the bill with irrelevant or “poison pill” amendments that could upset its bipartisan support.
The energy bill—which includes policy on energy efficiency, infrastructure modernization, and critical-minerals mining—passed the Energy and Natural Resources Committee on an 18-4 vote.
Peters said that members were working to ensure the amendment would be germane.
But regardless of the amendment’s future, the Flint story isn’t going away on Capitol Hill.
The House Oversight Committee will also hold a hearing next Wednesday on the crisis. Rep. Brenda Lawrence’s office previously said that Michigan Gov. Rick Snyder would be called to testify at the hearing, but a committee aide said he would not be on the witness list.
California Democrat Barbara Boxer also highlighted the crisis during an Environment and Public Works Committee markup last week on a bipartisan bill related to hunting and gaming. Boxer introduced an amendment to strip language in the underlying bill that would have exempted lead fishing tackle from EPA chemical regulation, which ultimately failed.
But she highlighted the language and a separate provision regarding pesticide spraying over water as “defiant acts toward American families who expect their country to protect them from poisons like pesticides that can harm the nervous system, impact the development of children and even cause cancer, and lead that can cause irreversible brain damage.”
The extent to which Congress can intervene in the Flint crisis remains to be seen. Speaking to Detroit TV station WXYZ on Wednesday, Peters said that it was “first and foremost … a state responsibility,” and said he was working largely to bring more federal resources to the state. That includes aid on nutrition, health care, and promotion of Head Start for the city’s poor children, Peters said.
Sen. Dick Durbin told reporters that he expected Republicans to get on board with any amendment related to the crisis. “I don’t know how they explain it if they don’t support an amendment to protect children from water that is deadly, or poisoned,” he said.
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Advocates Pursue Flint SDWA Suit As EPA, Michigan Clash On Oversight
Jan 27, 2016 | InsideEPA
By David LaRoss
Environmentalists are pursuing a Safe Drinking Water Act (SDWA) suit against city and state officials over the drinking water crisis in Flint, MI, that seeks stricter drinking water monitoring and treatment, while the agency and Michigan clash over EPA's power to issue a SDWA order to force some of the actions sought by the suit.
While the lawsuit filed Jan. 27 by the Natural Resources Defense Council (NRDC), American Civil Liberties Union (ACLU), other advocacy groups and Flint residents focuses on using SDWA to force improvements to the city's tainted water, environmentalist say the crisis also has environmental justice (EJ) implications. Advocates are leaving the door open to filing a civil rights suit, saying the situation has disproportionately hurt poor and minority residents.
“There's no doubt that this neglectful policy has had a disparate impact on people of color, and we're very concerned about the civil rights implications. Yes, we are considering further action,” ACLU's Michael Steinberg said on a Jan. 27 conference call announcing the SDWA suit in response to a question from Inside EPA.
Flint is already being touted as evidence of widespread EJ inequities. For example, a Jan. 27 statement from Cornell University professors Arturs Kalnins and Glen W.S. Dowell -- authors of a Sept. 19 paper on EJ issues -- says, “Flint is a particularly egregious example of what we believe is going on nationwide: poor areas do not appear to be able to effectively organize and influence political and corporate decision-making in their locales to make their environment cleaner and healthier. Thus they are consistently subjected to more pollution.”
ACLU's Steinberg, however, said the groups pursuing the SDWA case are waiting to bring a civil rights complaint because a SDWA suit “will be quickest” to secure remedies for harms suffered by Flint residents -- and the suit could also resolve long-running uncertainty about regulators' duty to replace inadequate water lines on private property.
NRDC, ACLU and their allies say in their SDWA complaint that Flint and state officials never properly tested for lead or installed corrosion controls after switching the city's water supply from Detroit's municipal water system to the more corrosive Flint River, which was done in order to save money. The lack of such controls allowed lead levels to spike to their current point far above the SDWA “action level” for the metal of 15 parts per billion, they continue.
Lead Levels
While EPA is not a defendant in the case, the advocates claim in their complaint that the agency was aware of elevated lead levels in Flint as early as February 2015, after residents wrote letters complaining of health effects from drinking or bathing in the city's water, but took no action for more than seven months.
“By February 26, 2015, the Water System, state officials, and EPA staff were all aware of sampling results showing high levels of lead in Flint’s drinking water. No one notified Flint residents,” the complaint says.
EPA has not formally responded to the complaint, or to similar claims made by advocates in press releases and interviews concerning the crisis.
However, former Region 5 Administrator Susan Hedman announced her resignation Jan. 21 -- alongside the release of an EPA SDWA order to Michigan and Flint authorities requiring them to take more robust corrective action.
The order calls on authorities in Flint to ensure the city's drinking water is re-optimized for corrosion control, that new testing procedures are adopted and that there is “public transparency and accountability” in carrying out corrective actions. It also says the state should make an affirmative finding that Flint has “the technical, managerial, and financial capacity to safely and effectively operate its drinking water system, and that all necessary infrastructure upgrades, analysis, and testing have been completed” before transitioning to a new drinking water source.
EPA's order followed the agency's Oct. 16 creation of a SDWA “task force” to investigate the Flint crisis alongside a full “programmatic review” of Michigan's drinking water program by Region 5.
Prior to issuing the order, Hedman decided in December to wait on using SDWA authority to address lead contamination in Flint. In a response to advocates' petition for federal action, Hedman said at the time that the legal bar for invoking SDWA section 1431 had not been met because the state and city had taken several actions to address high lead levels in the city's drinking water.
SDWA Order
Complicating the response to the disaster, Michigan is now rejecting EPA's basis for issuing the SDWA order, even though it is agreeing to follow the agency's directions in order to quickly resolve the Flint crisis.
“The Order demands that the State take certain actions, but fails to note that many of those actions . . . have already been undertaken. Finally, although the Order states that the State has failed to take adequate measures or comply with the USEPA's demands, to our knowledge, the State has complied with every recent demand or request made by the USEPA,” Michigan Department of Environmental Quality Director Keith Creagh says in a Jan. 22 letter to EPA Administrator Gina McCarthy.
In a Jan. 24 response, EPA Office of Enforcement & Compliance Assurance Water Enforcement Division Director Mark Pollins registered the agency's objection to Creagh's comments on SDWA authority, but seemed to agree that the agencies should work together on remedying the Flint crisis.
“We do not agree with the issues you raise about the Agency’s legal authority. During the coming days and weeks we need to focus on the important steps needed to protect the health of persons currently using, or who may use, the City’s public water system,” Pollins' letter says.
SDWA Complaint
The advocates' SDWA complaint argues that even though Flint has switched back to Detroit water, corrosion from the river water has damaged the city's drinking water infrastructure to the degree that it now leaches lead even into that comparatively non-corrosive water.
It asks the U.S. District Court for the Eastern District of Michigan to order further treatment and the complete replacement of Flint's lead pipes -- including those on private property.
If the court rules on the merits of that request, it could force resolution of a long-uncertain area of SDWA authority: Whether utilities are responsible for replacing service lines owned by private parties under the mandate to avoid lead contamination in pipes they “control.”
Under EPA's Lead And Copper Rule (LCR), water systems must replace the portion of a lead service line that they own -- rather than the broader definition of "control" under which a system "controls" a line if it owns it or has any other authority to replace, repair or maintain it, provided such work does not conflict with local statutes.
The U.S. District Court for the District of Columbia, in a 1994 ruling, American Water Works Association v. EPA, agreed that EPA did not provide an opportunity for the public to comment on the definition of “control” prior to the current standard promulgated in 1991, but the court did not address whether the broader definition was within the agency's legal authority under SDWA. Since that ruling the agency has avoided touching on the issue, including in its development of upcoming revisions to the LCR.
Advocates are calling on EPA to quickly advance those rule revisions in light of the Flint disaster, although they have not singled out specific provisions to overhaul. “The crisis in Flint makes that conversation much more urgent,” and shows it is important “that we not regress, especially on monitoring and testing requirements,” NRDC attorney Dimple Chaudhary said in the Jan. 27 call.
IG Investigation
Meanwhile, EPA's Inspector General (IG) is beginning its own investigation into the agency's response to and oversight of the Flint crisis. The objective of the investigation is “to examine the circumstances of, and the EPA’s response to, the contamination in the city of Flint’s community water system, including the EPA’s exercise of its oversight authority,” according to a Jan. 21 memorandum from Carolyn Copper, assistant IG in the Office of Program Evaluation, that was addressed to Hedman, agency deputy assistant administrator for Office of Water Joel Beauvais, and EPA enforcement chief Cynthia Giles.
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