Preview Newsletter
ACC PM 1/28/16
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ACI to Complete Ingredient Safety Project This Year
Jan 28, 2016 | Chemical Watch
By Dinesh Kumar
The American Cleaning Institute’s cleaning product ingredient safety initiative has moved into its final phase and is expected to be completed by the end of the year. -
High Levels of BADGE Found in Marine Mammals
Jan 28, 2016 | Chemical Watch
By Emma Davies
US researchers have identified high levels of bisphenol A diglycidyl ether (BADGE), used in epoxy resins, in marine mammals in Florida, California, Washington and Alaska. -
Echa Selects 300 Substances for Manual Screening
Jan 28, 2016 | Chemical Watch
By Geraint Roberts
Echa has selected another tranche of substances from REACH registration dossiers for further scrutiny by member state competent authorities. -
OSHA Probes Death From Toxic Vapors at Oil Site
Jan 28, 2016 | E&E Energywire
By Mike Soraghan
Federal worker safety officials are investigating another oil and gas worker's death in West Virginia as the possible result of toxic petroleum vapors. -
Freight Train Derails, Possibly Spills Oil in Mississippi River
Jan 28, 2016 | E&E Greenwire
A freight train derailment in southeastern Minnesota has left six train cars filled with soybean oil in the Mississippi River, according to Canadian Pacific Railway. -
(ACC Mentioned) Multitude of Litigants Lines Up at Supreme Court
Jan 28, 2016 | E&E Energywire
By Ellen M. Gilmer
The throng of litigants that rushed to a federal appeals court when U.S. EPA released its Clean Power Plan is now lining up at the Supreme Court, making multiple requests for Chief Justice John Roberts to freeze the sweeping climate rule. -
Renewable Tax Credits a 'Game Changer' for Climate Rule Compliance
Jan 28, 2016 | E&E Climatewire
By Elizabeth Harball
Congress' decision to extend tax credits for renewable energy could fundamentally shift America's energy mix away from natural gas and toward wind and solar at the advent of the Clean Power Plan, a new report predicts. -
State Critics Crafting Initial ESPS Compliance Plans After Stay Denied
Jan 28, 2016 | Inside EPA
By Dawn Reeves
States opposed to EPA's power plant greenhouse gas rule are moving ahead with efforts to craft initial compliance plans after an appellate court rejected efforts to stay the rule pending judicial review -- moves that will help solidify the rule's implementation and put additional pressure on aging coal plants that face decisions about whether to upgrade. -
Green Groups Question EPA Justification for Ozone Rule
Jan 28, 2016 | E&E Greenwire
By Sean Reilly
Did U.S. EPA dismiss findings from its own scientific advisers that it should have gone further in lowering the ambient air quality standard for ozone? That's among 10 questions posed by a coalition of environmental and public health groups in a lawsuit challenging the recently adopted 70 parts per billion standard as too weak to adequately protect public health. -
Policy Integrity's Revesz and Lienke Call 'War on Coal' Ahistorical
Jan 28, 2016 | E&E TV
Is the Clean Air Act tragically flawed? In a new book, "Struggling for Air: Power Plants and the 'War on Coal,'" Richard Revesz, director of the Institute for Policy Integrity, and Jack Lienke, a senior attorney at Policy Integrity, argue that a "tragic flaw" in the regulation has caused a decadeslong effort to undo the impacts of how the rule treats new sources versus existing sources. During today's OnPoint, Revesz and Lienke discuss regulatory efforts to reduce the use of coal and explain why they believe the idea of the "war on coal" is unsound.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
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ACI to Complete Ingredient Safety Project This Year
Jan 28, 2016 | Chemical Watch
By Dinesh Kumar
The American Cleaning Institute’s cleaning product ingredient safety initiative has moved into its final phase and is expected to be completed by the end of the year.
The four-phase project, launched in 2012, aims to make publicly available complete human and environmental safety data for every chemical ingredient used in all formulated consumer cleaning products manufactured by ACI members (CW 29 October 2015).
“ACI has spent the past three years successively identifying the inventory of ingredients used in our members’ products, identifying publicly available hazard data for each ingredient, and developing the exposure profile for each ingredient as it is used,” said Paul DeLeo, ACI associate vice president of environmental safety.
Last year, the trade group conducted exposure assessments of the 600-odd ingredients on the consumer cleaning products ingredient inventory.
In addition to developing a quantitative estimate of consumer exposure, ACI has published a description of every ingredient, including:
the types of products in which it is used;the form of those products;
the ingredient’s function within each of those products;
the typical concentration range among the products; and
the most relevant routes of exposure, associated with the use of those products.
This year, ACI will complete the project by “leveraging the information it collected, regarding ingredient hazards and exposures, to illustrate the margin of safety that is observed for uses of ingredients in consumer cleaning products, it said.
Meanwhile, the California legislature is considering a bill (AB 708) that would require manufacturers of cleaning products –to indicate on product labels the 20 most predominant ingredients. These would also need to disclose the presence of any substances listed as candidate chemicals, under the Department of Toxic Substances Control (DTSC) Safer Consumer Products programme (CW 12 January 20 2016).
The proposed measure has raised industry concerns over protection of trade secrets.
If a product contains more than 20 ingredients, the manufacturers would have to indicate on the label that a full list is available on its website.
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High Levels of BADGE Found in Marine Mammals
Jan 28, 2016 | Chemical Watch
By Emma Davies
US researchers have identified high levels of bisphenol A diglycidyl ether (BADGE), used in epoxy resins, in marine mammals in Florida, California, Washington and Alaska.
Jingchuan Xue and Kurunthachalam Kannan from New York state's public health laboratory, the Wadsworth Center, analysed 121 tissue samples from eight species of marine mammals, including pygmy sperm whales and dolphins, for BADGE, bisphenol F diglycidyl ether (BFDGE) and the novolac glycidyl ether (NOGE).
BADGE is made from BPA and epichlorohydrin and polymers, incorporating the industrial chemical, are used to coat food and beverage cans. Epoxy resins containing BADGE and NOGE are also used widely in electrical, electronic, automotive and construction industries, with many marine applications.
The chemical is listed as an Iarc group 3 carcinogen, meaning it is "not classifiable as to its carcinogenicity to humans". The authors point to in vitro studies suggesting that BADGEs and BFDGEs have the potential to be genotoxic, with the degree of toxicity believed to depend mainly on the concentrations of unreacted epoxy groups.
Other lab studies also suggest that the chemicals may have endocrine-disrupting potential, they add.
In 2015, professor Kannan reported finding BADGE and BFDGE in human adipose fat samples, raising concerns over their bioaccumulation (CW 3 March 2015). In the latest study, almost 80% of the marine mammal tissues contained BADGE·2HCl at some of the highest concentrations ever recorded in biological samples.
The researchers also found the chemical in the livers of polar bears from Alaska, suggesting that “BADGEs are widely distributed in the oceanic environment”.
The researchers suggest that the mammals are predominantly exposed to the chemicals from a wide range of marine products, including paints. The high measured concentrations of BADGE·2HCl could result from reactions with chloride ions in seawater, they say.
Concentrations of BADGE·2HCl, measured in marine mammal tissues, were as high or greater than those reported for “legacy” persistent organic pollutants such as polybrominated diphenyl ethers (PBDEs) or perfluorooctane sulfonate (PFOS), claim the researchers.
They call for further studies to evaluate the global distribution, fate and toxicity of BADGE in oceanic waters.
The mammal study will be published in Environmental Science and Technology.
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Echa Selects 300 Substances for Manual Screening
Jan 28, 2016 | Chemical Watch
By Geraint Roberts
Echa has selected another tranche of substances from REACH registration dossiers for further scrutiny by member state competent authorities.
The nearly 300 substances will be manually screened by the national authorities to decide whether there is a need for regulatory action.
The names of the chosen substances are not made public because they are chosen purely by automated selection by IT and manual verification is needed to confirm a potential concern.
Last summer the agency announced that a similar exercise had resulted in around 200 substances being chosen for manual screening by the member states (CW 25 June 2015).
The selection is based on an automated IT screening of the whole REACH registration database, together with information from other REACH and CLP processes and external sources, such as published scientific data, QSARs models and databases on uses and exposure..
In the latest screening, Echa focused on substances that are potentially carcinogenic, mutagenic or toxic to reproduction (CMRs), persistent, bioaccumulative and toxic (PBTs), endocrine-disrupting, sensitising or have potential specific target organ toxicity following repeated exposure (Stot Re) properties.
Of the 200 substances selected last year, said Echa, member states have examined 165, of which 125 were found to require follow-up activities. 67 were proposed for substance evaluation and 36 for compliance check. 17 dossiers were proposed for harmonised classification and labelling and six for risk management option analysis. Additional nine were found to require further assessment or other actions.
Echa told Chemical Watch that substances are re-introduced to the shortlist if member states did not prioritise them for manual screening in previous rounds. But if dossiers are updated in the meantime for hazard, use or exposure information, it is possible that these substances are no longer a priority.
The screening approach includes exclusion criteria, said Echa, so substances listed for substance evaluation in the community rolling action plan (Corap), on the candidate list or subject to risk management option analysis (RMOA) for the same potential concern and manually screened in the last three years are excluded from the latest shortlist.
Echa says companies affected have received, or are about to receive, a letter from it inviting them to update their dossiers to address any shortcomings as soon as possible as up to date information will help the national authorities assess whether the concern indicated by the screening is confirmed, and whether regulatory action is still needed.
If a member state or Echa take actions on a substance, the information is published on the agency’s website, for example, in the list of substances potentially subject to compliance checks, the Registry of Intentions, the draft Corap and the public activities coordination Tool (PACT), which lists substances under hazard assessment or RMOA. Companies can check the status of their substance through the “Search for chemicals” facility on Echa’s homepage.
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OSHA Probes Death From Toxic Vapors at Oil Site
Jan 28, 2016 | E&E Energywire
By Mike Soraghan
Federal worker safety officials are investigating another oil and gas worker's death in West Virginia as the possible result of toxic petroleum vapors.
Aaron Flanigan, 20, of Pennsboro, W.Va., died on the job Dec. 17, according to an obituary published in The Clarksburg Exponent Telegram. The item said he was a well tender for Balis Well Service.
A federal compilation of workplace fatalities said he was on an oil and gas tank and "died from exposure to gas vapors."
At least nine other men have died in a similar manner, according to a recent report published by the Centers for Disease Control and Prevention (EnergyWire, Jan. 15).
The report highlighted the potentially lethal effects of volatile organic compounds that whoosh out when workers open top hatches to measure storage tanks. The vapors can disorient people to the point that they're unable to escape the lethal effect of the vapors. And at high concentrations, the hydrocarbons can push oxygen out of the air to the point that they asphyxiate victims, even outdoors (EnergyWire, Sept. 14, 2015).
All crude oil has compounds called volatile hydrocarbons such as benzene, butane and propane. The report refers to them as "hydrocarbon gases and vapors." Shale crude sometimes has more of these compounds than conventional oil. It's related to why shale oil is more prone to explode in rail cars. The chemicals bubble up from the crude oil and collect in storage tanks (EnergyWire, Oct. 27, 2014).
The CDC report says physicians need to recognize the signs of exposure to the vapors, such as dizziness, confusion, immobility and collapse reported by oil workers. Employers, it said, should not have workers alone at the sites and should provide gas monitors and masks. Even better, though, would be to allow people to measure the tanks without needing to stand over them.
In six of the cases, medical examiners didn't attribute the workers' deaths to petroleum exposure, instead citing heart problems. But the report hints that might be because they were unaware of the hazard.
Public health researchers have indicated that the airborne chemicals that killed the workers also raise questions about whether the vapors threaten people who live nearby. But they say there is little or no published research on the topic, and researchers at the National Institute for Occupational Safety and Health say their findings can be applied only to workplace hazards.
The website of the Occupational Safety and Health Administration indicates that a fatality investigation began the day after Flanigan's death into a business owned by Ed Balis of Salem, W.Va. Attempts to reach the federal OSHA office in Charleston yesterday were unsuccessful.
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Freight Train Derails, Possibly Spills Oil in Mississippi River
Jan 28, 2016 | E&E Greenwire
A freight train derailment in southeastern Minnesota has left six train cars filled with soybean oil in the Mississippi River, according to Canadian Pacific Railway.
A sheen found downstream in the river points to the presence of soybean oil, indicating a possible spill. Railway officials said the oil is not dangerous, but they have positioned a boom to contain a potential spill.
Fifteen cars yesterday morning derailed a few miles south of Brownsville. Railway officials managed to get five cars back on the tracks today. But the six cars in the river need to be unloaded before they're moved to avoid leaking, officials said.
Railway officials plan to deploy empty cars to the site and use them to unload the cars in the river.
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(ACC Mentioned) Multitude of Litigants Lines Up at Supreme Court
Jan 28, 2016 | E&E Energywire
By Ellen M. Gilmer
The throng of litigants that rushed to a federal appeals court when U.S. EPA released its Clean Power Plan is now lining up at the Supreme Court, making multiple requests for Chief Justice John Roberts to freeze the sweeping climate rule.
Utilities, coal companies and business groups yesterday asked the high court for an immediate stay of the rule, blocking its implementation while litigation plays out in the U.S. Court of Appeals for the District of Columbia Circuit. A coalition of 25 states and four state agencies made the same request to the chief justice Tuesday. The requests come after the D.C. Circuit last week declined to stay the rule while it considers the merits of the multifaceted litigation (EnergyWire, Jan. 22).
Roberts has asked the Obama administration to respond to the states' request by Feb. 4. The chief justice may consider the requests on his own or refer them to the full court (EnergyWire, Jan. 27).
Approaching the Supreme Court while the circuit court litigation is ongoing is considered an extraordinary step, one that plaintiffs argue is necessary to ward off severe economic effects of the Clean Power Plan.
"The impact of this rule on the economy cannot be overstated," said Karen Harbert, president and CEO of the U.S. Chamber of Commerce's Institute for 21st Century Energy, in a statement. "The rule causes many businesses in the electricity sector and beyond to radically restructure or even close their doors, setting off a domino effect in local communities across the country. And while this happens, Americans will see their electricity bills increase as reliable power sources are forced to retire."
The Chamber of Commerce led a group of 15 other business groups in a stay request to the Supreme Court yesterday. The coalition includes the National Association of Manufacturers, the National Federation of Independent Business, the American Chemistry Council and others.
A stay request from a large coalition of electric utilities made similar arguments yesterday, noting that utilities are investing billions of dollars in updates to generation and transmission infrastructure and are prematurely closing coal plants in anticipation of the rule. The coalition says EPA will achieve backdoor changes to the electric sector even if the rule is ultimately vacated.
"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 coalition said in its request. The group includes the American Public Power Association, the Utility Air Regulatory Group, the National Rural Electric Cooperative Association and others.
Coal companies beat the same drum in their filing yesterday, noting that allowing the rule to move forward would result in "shuttered coal mines, tens of thousands of additional layoffs, and the economic devastation of the States and rural, economically depressed communities that rely on coal."
"The coal industry is suffering irreparable harm now, as the Power Plan forces utilities to make investment decisions away from coal today and States begin the restructuring of the power sector within their respective borders today," industry lawyers told the court. "Irreparable injury will occur long before the panel decision in the Court of Appeals."
Murray Energy Corp., Peabody Energy Corp., the National Mining Association and the American Coalition for Clean Coal Electricity are included in the request.
Asked for comment, EPA restated its position from last week expressing satisfaction that the D.C. Circuit left the rule intact. Clean Power Plan supporters, meanwhile, have been outspoken in their criticism of industry and states' Supreme Court action. Environmental attorneys have called the approach a long shot.
In an email yesterday, Heartland Institute policy adviser David Applegate, a lawyer, acknowledged the unconventional nature of the Supreme Court requests but maintained that the Clean Power Plan's far-reaching effects are exactly the type of impacts the high court should intervene to avoid.
"If ever a case existed for the courts to intervene with equitable relief -- in this case a stay of the lower court's ruling -- it is here, where the jobs of the people, the nation's ability to meet its energy needs, and a coherent environmental and energy policy are at stake," he said, "and a refusal to grant the stay becomes effectively irreversible."
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Renewable Tax Credits a 'Game Changer' for Climate Rule Compliance
Jan 28, 2016 | E&E Climatewire
By Elizabeth Harball
Congress' decision to extend tax credits for renewable energy could fundamentally shift America's energy mix away from natural gas and toward wind and solar at the advent of the Clean Power Plan, a new report predicts.
Congress in December agreed to extend the production tax credit (PTC) for wind and the investment tax credit (ITC) for solar through the end of the decade, a move hailed as hugely significant for the industries because it provides greater certainty to investors (ClimateWire, Dec. 21, 2015).
When the compliance period for U.S. EPA's new climate rule begins in 2022, states are likely to rely more on renewables and less on natural gas to meet emission targets because of the tax extensions, according to an analysis released yesterday by the Rhodium Group.
"Tax extenders fundamentally change the compliance game," said John Larsen, a director at the firm and an author of the report.
Without the extra boost from Congress, the analysis found that states were more likely to rely on low-cost natural gas generation to reduce power-sector emissions in 2022, when states have to first comply with the Clean Power Plan. In this scenario, wind and solar "play a role," the report notes, but not until about 2025.
But the tax credit extension shifts "the economics in renewables' favor nearly a decade earlier than they would under the CPP alone," the Rhodium Group wrote.
"The tax extenders allow states to meet pending CO2 regulations almost exclusively with zero-emitting renewables, leaving the country well positioned for deeper cuts down the road rather than a greater reliance on fossil fuel-fired power," the report says.
What about methane?
One caveat to note is that the analysis assumes "optimal implementation" of the Clean Power Plan, which the Rhodium Group defines as the establishment of one national cap on carbon emissions for existing and new power plants. That, in turn, also assumes that allowances are auctioned and that a broad carbon trading system is in place.
"This approach captures the most gradual, economically efficient, and easily approvable CPP implementation pathway," the report states.
In reality, it appears unlikely that a national carbon trading system will form by 2022 because states are developing compliance plans based on individual economic and political situations (ClimateWire, Jan. 19).
Still, "while the design of actual state CPP implementation plans could lead to different outcomes, the economics are dramatically changed with the tax extenders in place," the Rhodium Group wrote.
"No matter what choices states make in implementation, the tax credits are still the tax credits," said Larsen. "They still put renewable energy on much better footing to compete."
This development will likely be cheered by environmental groups, many of which are concerned about methane related to natural gas production, which could ramp up under the Clean Power Plan. Methane's warming properties are more potent than carbon dioxide, which is why environmental groups are alarmed about a massive natural gas leak currently occuring at a California well (ClimateWire, Dec. 22, 2015).
A different report released yesterday by the nonprofit research group PSE Healthy Energy raised concerns about this issue, arguing that "reducing the climate impact of electricity generation requires a greater focus on curbing upstream methane leakage rates."
Elena Krieger, director of the group's renewable energy program, acknowledged that the tax credit extensions will likely encourage renewable energy generation.
But Krieger added, "Natural gas is still one of the primary tools in the Clean Power Plan that states are allowed to use to comply -- that's still a fundamental part of regulation."
States that are serious about the Clean Power Plan's goals shouldn't ignore the methane issue, Krieger argued.
"As states develop plans in the next couple of years, if they really want to make a difference on the climate, they should take into account upstream methane, even if that's not necessarily required," Krieger said.
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State Critics Crafting Initial ESPS Compliance Plans After Stay Denied
Jan 28, 2016 | Inside EPA
By Dawn Reeves
States opposed to EPA's power plant greenhouse gas rule are moving ahead with efforts to craft initial compliance plans after an appellate court rejected efforts to stay the rule pending judicial review -- moves that will help solidify the rule's implementation and put additional pressure on aging coal plants that face decisions about whether to upgrade.
In a further loss for critics, several sources say the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that will hear the suit, West Virginia, et al. v. EPA, et al., is likely more favorable for EPA given that two of the judges were appointed by Democratic presidents, according to the Jan. 21 order denying the stay.
While some states, like Alabama, had halted work on their compliance plans pending the court's stay decision, others state opponents, including Kentucky, North Dakota and others, have been hesitant to clearly indicate how they planned to proceed.
But many critical states are now preparing to file initial plans that seek two-year extensions for their final plans even as they asked the Supreme Court Jan. 26 to overrule the D.C. Circuit -- a request considered unlikely to be granted.
In an interview with Inside EPA, Alabama's air director Ron Gore says the stay denial means Alabama will "probably" submit at least the outlines of a plan and ask for a two-year extension that EPA is allowing.
Gore says that Alabama -- one of 27 states challenging the rule -- is now going to “invoke the first meeting of our primary stakeholders group," which is composed of utilities directly affected by the rule, "within the next month or so.”
Alabama will also begin planning for a larger stakeholder group, which will include environmentalists and other government agencies. The utility stakeholder group has already been formed but has yet to met, after the state announced it was suspending work on an ESPS compliance plan in anticipation of winning a stay.
Gore had previously said he was “optimistic about a stay. We don't see any sense in working on it now until there's ruling.”
But he did not rule out the possibility that Alabama may do nothing. The stay ruling has not "eliminated the possibility of submitting nothing, or submitting a plan" that is limited to the components the state believes are legal, similar to an inadequate plan North Carolina intends to submit in a bid to test EPA. "All avenues are open," he says.
To win an extension, states must file an “initial” plan by Sept. 6. EPA has stressed that such plans do not have to contain binding requirements, though states must show that they have engaged in stakeholder outreach. States that do not submit an initial plan would have a federal plan imposed on them by the agency.
Two-Year Extensions
North Dakota, another state that was eyeing a "just-say-no" approach, "is planning to request a two-year extension like many other [opposing] states are planning to do. We also intend to submit a plan assuming the request for extension is granted," a state source also tells Inside EPA.
Kentucky also announced it would seek a two-year extension in a Jan. 21 statement that won praise from Senate Majority Leader Mitch McConnell (R-KY). "I applaud Governor [Matt] Bevin [R] for filing an extension and refusing to submit a plan until the legal challenges are addressed," McConnell said.
Kentucky's announcement said, "We have come to the conclusion that it is in the Commonwealth's best interest that we retain control of our own energy future. Toward that end, we are submitting an extension request. We are requesting this extension to allow serious legal challenges to progress through the court.” The state said it would soon host listening sessions to gather input on what a plan should contain.
A Kentucky source notes the Jan. 21 announcement was in the works ahead of the stay denial, so its release was "coincidental" and the state is “keeping its options open. That doesn't mean we'll end up doing a final plan. It means we are taking a first step, which it seems most states are probably doing.”
Texas, another state challenging EPA's existing source performance standards (ESPS), has not decided whether to submit a plan even after the stay was denied, a spokesman for the Texas Council on Environmental Quality says Jan. 26.
Also, a source with Oklahoma's environment department declined to reveal the state's compliance plans but tells Inside EPA, “While the stay was not successful, we were glad to see the D.C. Circuit has established a June 2 date for oral arguments and understands the need for an expedited review of the Clean Power Plan. We continue to be supportive of the efforts by Oklahoma Attorney General Scott Pruitt to overturn this rule.”
'Bigger Problem'
While state opponents appear to be largely unaffected by the stay denial -- with most opposing states now intending to submit two-year extension requests -- one industry attorney notes that "the bigger problem" is for utilities and coal mining operations that need maintenance.
“People are wondering, do I spend $10 million on this plant or $20 million in this mine knowing that if the rule is upheld the plants and mine may have to shut down?' Those are more difficult issues going on, in terms of impacts.”
Also, one ESPS opponent argues that EPA's decision in the final rule to give states the option to request two additional years -- meaning detailed compliance plans are not due until September 2018 -- helped the agency convince the court that the rule did not cause immediate harm. However, the two-year delay is "meaningful" because the litigation might be decided by the Supreme Court before that deadline hits.
"EPA was forced to make a tradeoff" in seeking to avoid a stay, so agency officials "went out of their way to say to states, 'You don't have to do much to receive an extension request.' . . . And that probably helped them in arguing to the court that that states didn't face immediate harm if the rule wasn't stayed. But now states not wanting to submit a [final compliance plan] get to wait until the next administration takes office and the legal case moves along even further, which is probably why expedited review is also a critical step" that the court allowed.
Even so, the American Energy Alliance (AEA) is urging states to "remain steadfast in their opposition" to the ESPS. In a statement, the group called the stay rejection "disappointing and erroneous. If the D.C. Circuit is not going to protect the American people from EPA's overreach, it's all the more important for state leaders to do so."
AEA earlier this month released a paper outlining why states should not submit a plan nor seek a two-year extension, given that there is “one crucial difference” between a state and federal plan: "Any laws enacted under a state plan to comply with the rule will remain in place even if the courts invalidate the rule later. By contrast, if the rule is struck down, the federal plan goes away,” the group says. “This means states that go with a federal plan will not be stuck with new state laws that hike electricity prices and shut down reliable power sources.”
Favorable Panel
But one wrinkle in that argument could be the selection of the D.C. Circuit panel that will hear both the ESPS suit and a challenge to a companion GHG rule for new plants. The three judges -- George H.W. Bush appointee Karen Henderson, Clinton appointee Judith Rogers and Obama appointee Sri Srinivasan -- are considered favorable to EPA.
Because the court selects panels via random lottery, “the petitioners were going to have to draw a pretty good hand to have a favorable panel, and they didn't draw that,” the ESPS opponent says. But, the court's decision “either way will be appealed to the Supreme Court. . . . The petitioners are looking for the Supreme Court to side with their arguments.”
But the industry attorney says it is “almost hard to imagine a worse panel,” even though Henderson is considered receptive to opponents' arguments. She sat on the panel that heard challenges to the proposed version of the rule and split from the two other GOP-appointed judges who held that the arguments were premature.
The source says Rogers has sat on a lot of earlier power sector cases “and always rules against power plants.” Srinivasan “is presumably unlikely to vote against one of the president's major initiatives. But we'll see. He has lifetime tenure and may be more willing to look at the law and see what it says. This is not a great panel for us.”
EPA supporters are pleased with the panel but add that the stay denial should not have any practical implications on the rule's implementation -- unlike what would have occurred had the stay been granted.
One environmentalist says the panel is "a good draw," while noting, "Nothing is ever certain."
A second says, “We love the panel, but that's pretty obvious, probably.”
And EPA Region 10 Administrator Dennis McLerran told a Jan. 26 Law Seminar International event in Seattle that EPA officials were "doing a little fist pumping around the office when the D.C. Circuit denied motions for a stay." He also noted one of the criteria for granting a stay is a substantial chance of prevailing on the merits.
McLerran added that the agency is "very committed to moving forward and getting" the rule "implemented in this administration. . . . We were pretty pleased with this outcome in the court." He also praised the court for "not letting this proceed slowly. They are accelerating the pace of briefing and moving ahead to make decisions on this case . . . this year," after oral arguments in early June.
Briefing Schedule
The first environmentalist says the fast-paced briefing schedule -- with final briefs due by April 22 -- is "totally doable. The big signal to states is they need to go ahead with planning and the September submittals. The message is this: The [ESPS] isn't going away. There's no further excuse for holding back.”
The second environmentalist says there is "bifurcation" between state activity on the ground and their statements in court. "A lot of them are . . . planning to submit plans . . . I don't know [the stay denial] has any implications."
The denial will ensure the rule's implementation isn't further delayed when compliance begins in 2022, unlike the Cross-State Air Pollution Rule, which was stayed during litigation and then delayed by two years after it was upheld, the source argues.
An attorney tracking the rule adds: “Had the stay been granted, I think states would've stopped. I don't think [the denial] changes anything on the ground. If [EPA] had lost, it would've changed things.”
EPA did not respond directly to a question about the stay impact or the judicial panel.
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Green Groups Question EPA Justification for Ozone Rule
Jan 28, 2016 | E&E Greenwire
By Sean Reilly
Did U.S. EPA dismiss findings from its own scientific advisers that it should have gone further in lowering the ambient air quality standard for ozone?
That's among 10 questions posed by a coalition of environmental and public health groups in a lawsuit challenging the recently adopted 70 parts per billion standard as too weak to adequately protect public health.
In a "statement of issues" filed in court yesterday, the Sierra Club and other plaintiffs also ask whether EPA officials "acted unlawfully, arbitrarily or capriciously" by:
Adopting a primary ozone standard that fails to protect against harmful health effects.
Using a test for determining harmful health effects at odds with the agency's past practice.
Failing to adopt a secondary standard for ecosystem protection in a form recognized by the National Park Service as the right yardstick needed to "characterize the impacts to vegetation."
The filing with the U.S. Court of Appeals for the District of Columbia Circuit comes five weeks after the coalition, which also includes the National Parks Conservation Association and Physicians for Social Responsibility, appealed the 70 ppb standard set by EPA in October.
That benchmark was at the upper range of options considered by EPA; in defending it last fall, Administrator Gina McCarthy said there was no bright line, but she carefully considered "how we could actually identify health impacts that we could eliminate" (Greenwire, Oct. 2, 2015).
The issue split the agency's Clean Air Scientific Advisory Committee, a panel of outside experts who study air pollution. In 2014, the committee recommended that EPA choose a new standard in the range of 60 to 70 ppb after intense debate over whether 70 ppb would do enough to protect health. "Although a level of 70 ppb is more protective of public health than the current standard, it may not meet the statutory requirement to protect public health with an adequate margin of safety," CASAC wrote at the time.
Ozone, the main ingredient in smog, can irritate lung passageways and worsen asthma and other diseases. The previous standard, set in 2008 during President George W. Bush's administration, had been 75 ppb.
Ten states, along with Murray Energy Corp. and various trade groups, are also battling the 70 ppb threshold in court on the grounds that it is needlessly stringent. In their own statement of issues filed last week, the U.S. Chamber of Commerce and other business organizations questioned whether EPA fully accounted for the possibility that naturally occurring "background ozone" could affect states' ability to meet the new standard.
Murray, an Ohio-based coal company, has also flagged background ozone as an issue. In a November filing, the firm's lawyers argued that EPA concluded the 70 ppb primary standard was appropriate "merely because some particularly sensitive individuals within a subset of the population may be thought to be at risk" from the previous threshold (Greenwire, Dec. 1, 2015).
All of the lawsuits have been consolidated.
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Policy Integrity's Revesz and Lienke Call 'War on Coal' Ahistorical
Jan 28, 2016 | E&E TV
Is the Clean Air Act tragically flawed? In a new book, "Struggling for Air: Power Plants and the 'War on Coal,'" Richard Revesz, director of the Institute for Policy Integrity, and Jack Lienke, a senior attorney at Policy Integrity, argue that a "tragic flaw" in the regulation has caused a decadeslong effort to undo the impacts of how the rule treats new sources versus existing sources. During today's OnPoint, Revesz and Lienke discuss regulatory efforts to reduce the use of coal and explain why they believe the idea of the "war on coal" is unsound.
Transcript
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Richard Revesz, director of the Institute for Policy Integrity, and Jack Lienke, a senior attorney also at Policy Integrity. Thank you both for joining me today.
Richard Revesz: Thank you.
Monica Trauzzi: So, Ricky, you both are co-authors of a new book, "Struggling for Air: Power Plants and the 'War on Coal'." It's especially timely as the legal action against EPA's Clean Power Plan heats up. "War on coal" is a phrase we've heard repeatedly throughout the Obama administration as new regulations that target the industry have come into play. What are you hoping to clarify through this book?
Richard Revesz: We're trying to clarify the history of the Clean Air Act. What the book does is it shows how, in 1970, 45 years ago, Congress made a serious mistake, even though it passed a law that did a lot of good. And the serious mistake was to grandfather existing sources from the regulatory requirements that apply to new sources, and power plants are an important example of this. So that mistake created enormous incentive for existing power plants to stay in operation a lot longer than would have been the case because now they had a huge incentive to continue operating because they could do it without spending any money on pollution control devices, and new sources had to spend $100 million or so on a scrubber. So plants that were almost obsolete in 1970 and that people thought were about to close down continued operating for decades later. Many of them are still in operation today. So that was the tragic flaw of the Clean Air Act.
The second point of the book is that starting in 1990, administrations of both parties recognized this problem and have been trying to undo the error. Started with 1990 with the Clean Air Act and the acid rain provisions that created a national trading scheme, and then it continued with various regulatory initiatives of administrations of both parties. And so we see the three rules that are deemed to be the war on coal, that the opponents of the Obama administration call the war on coal, to be the continuation of a set of policies of both administrations over a 25-year period to undo an error that was committed 45 years ago.
Monica Trauzzi: OK, so, Jack, in the book you say that the narrative on Obama's war on coal is ahistorical. Throughout the administration, though, steps have been taken to reduce the use of coal and to boost clean energy, things like CSAPR, MATS, the Clean Power Plan most recently. So why, then, is the political rhetoric on coal incorrect if there are, in fact, all these regulations coming into play that are reducing the use of coal?
Jack Lienke: Yeah, we wouldn't contest that these rules are going to reduce coal's market share in the electricity sector because all of the forms of pollution that they aim to reduce, coal emits more sulfur dioxide and nitrogen oxide than a natural gas plant does. You know, coal emits -- a coal plant emits more mercury than a natural gas plant does, and it emits more carbon dioxide than a natural gas plant does, and certainly more than, you know, renewable sources of energy do.
What we're pushing back against is the notion that these rules are the product of kind of a personal vendetta, you know, on the part of the president and that, you know, Obama took office and made, like, a sharp break from the history of environmental enforcement in the U.S., implemented all of these onerous rules on coal plants. I mean, as we show in the book, the transport rule, the Mercury and Air Toxics Standards, the Clean Power Plan, all of these rules were actually set in motion, to some extent, by the actions of previous administrations. So that's really what we're pushing back against is this -- a story that's kind of robbed of historical context.
Monica Trauzzi: How widespread do you think this idea of a personal vendetta against coal is?
Jack Lienke: I think it's very popular in certain media sources. You know, we sort of trace the rise of this narrative in the book, and I think we know that the war on coal reached its most searched point on Google during the Romney-Obama campaign, and at that point, you know, there were signs on lawns across the country saying, you know, stop the war on coal, fire Obama. That was probably the peak, but it's definitely still out there, and basically every time the administration takes a step forward with any of these policies, you know, it's renewed. Oh, this is just another example of the president's war on coal.
Monica Trauzzi: Ricky, coal is the reason for much of the development that has been achieved in the United States throughout the years. So is all of that viewed through a negative lens as the United States moves towards a cleaner energy future?
Richard Revesz: Our economic growth over these decades has been a very good thing for the country, but now we understand the consequences better, the additional pollution that coal brings, and the very adverse consequences on human health and the environment. Just take one rule, the Cross-State Air Pollution Rule. It will reduce the number of premature deaths by more than 10,000 a year. So now that we understand this better, we have to take those things seriously, and we have to value the consequences, the positive and negative consequences of coal. I mean, the problem is that the supporters of using coal now want to focus on the positives but don't want to focus on the negatives, and our book's perspective is that we should be focusing on both.
Monica Trauzzi: So now, obviously, the Clean Power Plan is receiving all eyes and a huge amount of attention in terms of its impacts on the coal industry and, Jack, ClimateWirereported last week that government officials in West Virginia and major coal-producing states are having discussions about carbon trading for their Clean Power Plan compliance. What does that indicate to you about the long-term economic planning that's happening in a state like West Virginia that's so dependent economically on coal?
Jack Lienke: I think, you know, they're recognizing that they need to operate on the assumption that this rule will take effect on schedule and that, given that that's taking place, they should try to comply with the rule in the most cost-effective manner, and the cheapest way to meet, you know, the standards under the Clean Power Plan is going to be engaging in emission trading, you know, some sort of cap-and-trade scheme, essentially. And so we see a lot of states converging around that solution. Certainly they have the option to do other things. The rule gives them flexibility. They don't have to do that, but if it's the cheapest way to hit the targets, it's probably what they're going to do, and we think the country would be better off if pretty much every state adopted a kind of mass-based trading model for complying with the rule.
Monica Trauzzi: Ricky, could trading, in a sense, save the industry, save the coal industry in some states?
Richard Revesz: It could. It could. And that's the beauty of trading is it is not a governed regulator saying you deserve to, like, go away and you should stay. It basically says, well, if you can -- if once we take into account the negative consequences, which are taken into account by setting the cap, you can make a go of this, we applaud that.
Jack Lienke: And I think it's important to point out that, while the Clean Power Plan is projected to cause, you know, a large quantity of coal plants to retire, there's still -- the majority of them are still going to be around. It's not shutting coal out as an energy source in this country, you know, even in 2030 when the rule's fully implemented. There's still going to be quite a bit of coal capacity, at least under EPA's projections.
Monica Trauzzi: Right, just about a third. What do you see as the long-term role for coal in the U.S.'s energy mix?
Jack Lienke: You know, I think it's very difficult to make predictions about energy markets, but I do think that long term, to be a viable energy source, we would need to be capturing the carbon that coal generates. I think we're going to see steps toward natural gas that we're already seeing and steps towards renewables which emit nothing because it's cleaner and it's, you know, contributing less climate change, and that's a good thing for society, so I think if coal is to have a really long-term future as a power source, something like carbon capture would have to be implemented on a wide scale.
Monica Trauzzi: Ricky, this administration has had several legal wins in the past week. No stay on the power plan in the D.C. Circuit, and many are contending that the panel that has been chosen to hear the suit against EPA on the power plan is potentially a plus to EPA. We also saw the Supreme Court siding with the government in the FERC demand-response case as well in the past week. Are the legal tides shifting with respect to how the courts view the government's influence over energy markets?
Richard Revesz: It's hard to say. This case is going to be litigated to the hilt. Obviously there is a lot at stake. There's lots of parties and there'll be lots of briefs. I mean, I think at the end of the day, the administration is on strong legal footing, and many of the criticisms make it sound like this is something unprecedented and never has there been a regulatory approach that sets up broad trading markets, but those have been done under the transport rule and its predecessors, so I think that once all of this rhetoric is peeled away, the courts will understand that what EPA's doing here is part and parcel of policies that it's implemented in the past under other programs with much success.
Monica Trauzzi: All right. Well, it's a great read regardless of what side of the argument you're on. Very accessibly written. Thank you both for coming on the show. Nice to see you both.
Richard Revesz: Thank you.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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