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Chemical Management News

(ACC Mentioned) New ‘TSCA' Could Aid, Not Ensure Use of Advanced Tests
Feb 10, 2016 | BNA Daily Environment Report
By Pat Rizzuto

The House and Senate bills to update the Toxic Substances Control Act could open the door to increased regulatory use of advanced scientific toxicity and exposure prediction methods, but they can't guarantee their regulatory use, according to a Humane Society toxicologist.
(ACC Mentioned) How the Chemical Industry Made a Cancer Cluster Disappear
Feb 10, 2016 | VICE News
By David Heath

It began with a headache; then came shaking of the hands. Leuvell Malone's wife noticed unusual behavior. He struggled to button his shirt straight and crashed the car into the hot-water heater in the garage.
(ACC Mentioned) 'Rented White Coats' Vouch for Safety of Lead, Asbestos
Feb 9, 2016 | E&E Greenwire

When corporations want to find scientists to publish questionable studies and expert witnesses to tout novel theories in court, some researchers are willing to play ball.
EPA's Chemicals Work Fast-Tracked Under Budget Request
Feb 10, 2016 | BNA Daily Environment Report
By Pat Rizzuto

The Environmental Protection Agency's requested budget for chemical and pesticide management and research in fiscal year 2017 is $624.7 million, a $51.9 million increase from the FY 2016 enacted level.
State Authorities Weigh in on Senate and House TSCA Reform Bills
Feb 9, 2016 | Environmental Defense Fund
By Richard Denison

In recent weeks, two documents have been released by state government officials and organizations that take a deep dive into those aspects of the Senate and House bills to reform the Toxic Substances Control Act (TSCA) most relevant to them.
Erin Brockovich: It’s Not Just Flint—America Has a Scary Water Problem
Feb 10, 2016 | TIME
By Erin Brockovich and Ken Cook

Most Americans take our drinking water for granted: turn the tap, fill a glass and drink. Only when a community’s health and safety are imperiled do we pay heed to the threat of industrial chemicals in our water supplies.
Chemical Distributors Get New International Body
Feb 10, 2016 | Chemical Watch
By Geraint Roberts

Chemical distributors now have an incorporated trade body, which will seek to recruit member companies, raise subscription revenue and be run by a secretariat and policy board.
Can Manufacturing Save the World? Inspiration from Tesla, Owens Corning
Feb 10, 2016 | Green Biz
By James Connelly

Manufacturing and industrial production long have been the poster children for what is wrong with our current economic system. For decades, the environmental movement has been focused on battling industry to clean up its act. It is assumed that business is bad and that economic growth is necessarily at odds with protecting the environment.
What Is It About Mercury? Thinking About Chemicals in the Public Discourse
Feb 9, 2016 | Southern Fried Science
By Amy Freitag

All of the revelations about the lead in the water system of Flint, Michigan have made residents and curious neighbors alike wonder ‘haven’t we solved the lead problem’?

Chemical Security News

Watchdog Asks for More Funding for Investigations, Outreach
Feb 9, 2016 | E&E News PM
By Sam Pearson

The federal government's chemical watchdog would see a rare funding boost under President Obama's proposed spending plan, which was released today, as the agency aims to start new safety initiatives.
Obama Request Boosts Funding for Safety Reviews
Feb 10, 2016 | E&E Daily
By Sam Pearson

Federal agencies would see funding increases for chemical safety evaluations and investigations into harmful exposures under President Obama's budget proposal for fiscal 2017.

Transportation News

Obama's Clean Transportation Plan Likely to Sink: Sources
Feb 10, 2016 | BNA Daily Environment Report
By Stephanie Beasley

The White House would like to double the nation's investments in low-carbon, “clean transportation” and proposes spending $900 billion in surface transportation upgrades over the next 10 years, according to its fiscal year 2017 budget proposal.
Obama Aims to Overhaul Sector Through $98B Request
Feb 9, 2016 | E&E News PM
By Ariel Wittenberg

The Obama administration is asking Congress to fund a transportation sector transformation in fiscal 2017 with a $98.1 billion budget request for the Department of Transportation.

Energy and Environment News

Supreme Court Freezes Obama Plan to Limit Carbon Emissions
Feb 9, 2016 | The Washington Post
By Robert Barnes and Steven Mufson

The Supreme Court on Tuesday blocked a key part of President Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged.
Supreme Court Deals Blow to Obama’s Efforts to Regulate Coal Emissions
Feb 9, 2016 | The New York Times
By Adam Liptak and Coral Davenport

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.
Supreme Court Halts Clean Power Plan in Blow to Obama
Feb 10, 2016 | BNA Daily Environment Report
By Andrew Childers and Anthony Adragna

The U.S. Supreme Court Feb. 9 took the unusual step of blocking the Environmental Protection Agency's Clean Power Plan even before the rule has been argued before an appellate court, casting doubt on the viability of the carbon dioxide standards for power plants (West Virginia v. EPA, U.S., No. 15A773, order issued 2/9/16).
Supreme Court Puts the Brakes on the EPA’s Clean Power Plan
Mar 9, 2016 | The Washington Post
By Jonathan H. Adler

Tuesday evening, the U.S. Supreme Court granted a stay, halting implementation of the Environmental Protection Agency’s Clean Power Plan pending the resolution of legal challenges to the program in court.
White House Surprised by Supreme Court Stay of Carbon Rule
Feb 10, 2016 | BNA Daily Environment Report
By Anthony Adragna

Senior Obama administration officials said late Feb. 9 they strongly disagree with the Supreme Court's decision to stay the Environmental Protection Agency's greenhouse gas emissions standards for power plants while litigation continues, but they expressed confidence the Clean Power Plan's legality ultimately would be upheld.
In Unexpected Move, Divided High Court Halts ESPS Pending Judicial Review
Feb 9, 2016 | InsideEPA
By Abby Smith

In an unexpected blow to the Obama administration's climate agenda, a divided Supreme Court late Feb. 9 halted implementation of EPA's existing power plant greenhouse gas rule until court challenges are resolved, a significant victory for the rule's opponents, who charge that the move signals that the high court will ultimately overturn the rule.
Supreme Court Threatens Obama's Climate Agenda
Feb 9, 2016 | Politico
By Alex Guillen

President Barack Obama will leave office next January with the fate of one of his biggest environmental achievements hanging in the balance.
Is Obama's Signature Climate Rule Doomed?
Feb 10, 2016 | E&E Daily
By Amanda Reilly and Robin Bravender

The Supreme Court sent a shot across the bow to the Obama administration yesterday, throwing the fate of its landmark climate change rule into doubt.
EPA Seeks Millions to Implement, Defend Climate Rule
Feb 9, 2016 | E&E News PM
By Amanda Reilly

U.S. EPA today requested more funding to defend its Clean Power Plan against legal challenges while also seeking money to help states write plans to comply with the program.
House Panel to Vote on Emissions Compliance Bills
Feb 10, 2016 | BNA Daily Environment Report
By Patrick Ambrosio

A House Energy and Commerce subcommittee is set to vote on a pair of bills that would alter compliance obligations for the brick manufacturing and coal refuse-to-energy sectors under Environmental Protection Agency air regulations.
Senate Expected to Move Off Energy Bill
Feb 10, 2016 | BNA Daily Environment Report
By Ari Natter

Barring a last-minute agreement, the Senate was expected to move off of a broad energy bill and onto other business after a partisan dispute over providing funds to help Flint, Mich., deal with its lead-tainted water couldn't be resolved, senators said Feb. 9.
Senate 'Not Giving Up' on Energy Bill -- McConnell
Feb 10, 2016 | E&E Daily
By Geof Koss

Senate Majority Leader Mitch McConnell vowed last night that the chamber would return to the bipartisan energy package as discussions continue on addressing the situation in Flint, Mich.

Industry and Association News - There are no clips to report at this time.

Chemical Management News

(ACC Mentioned) New ‘TSCA' Could Aid, Not Ensure Use of Advanced Tests

Feb 10, 2016 | BNA Daily Environment Report

By Pat Rizzuto

The House and Senate bills to update the Toxic Substances Control Act could open the door to increased regulatory use of advanced scientific toxicity and exposure prediction methods, but they can't guarantee their regulatory use, according to a Humane Society toxicologist.
Of the two bills, the Senate approach would do a better job spurring the Environmental Protection Agency's use of automated toxicity prediction tests, or screens. It would also advance computer-based exposure prediction methods, Catherine Willett, tdirector of regulatory toxicology, risk assessment and alternatives at the Humane Society of the United States, said Feb. 8.
Revolutionary scientific developments are not automatically translated into change in regulatory practice, Willett said at a Capitol Hill briefing called Opportunities and Challenges in Using Advanced 21st Century Toxicity Testing and Risk Assessment Methods in a Modernized TSCA. Three scientists from the EPA's Office of Research and Development were among the speakers at the briefing.
The American Chemical Society, an organization of professional chemists, and the American Chemistry Council , the primary trade association for major U.S. chemical manufacturers, hosted the briefing to address House and Senate legislation slated for congressional conference talks. If the conference produces a single bill that is approved by both houses of congress, it would reauthorize TSCA for the first time since 1976, when President Gerald Ford signed it into law.
Initial, Later Implications of Advanced Methods
The panel discussed EPA, private companies and other research institutions' efforts to develop groundbreaking new technologies—alternative techniques that use computational toxicology (CompTox) to predict endocrine and other bioactive effects using automated toxicity tests and computer-based models.
These tools will allow the agency to move from screening dozens of chemicals per year to up to 1,000 per year, while moving away from animal testing, the agency said Feb. 9 in summaries of its requested fiscal year 2017 chemical safety budget (see related story).
The advanced technologies include the EPA's ExpoCast, which combines different sources of exposure information to provide very rough, yet potentially useful, predictions of chemicals that may be found in human bodies at concentrations of concern as well as chemicals that are unlikely to raise exposure-based concerns.
Combining advanced toxicity and exposure prediction tests and models is first being developed and implemented by EPA to screen chemicals and pesticides to select compounds that would receive further automated and animal-based testing in the Endocrine Disruptor Screening program.
The methods, however, have potential to shed light on other possible human health and ecological risks identified through toxicity screening. Chemical manufacturers already are using the advanced toxicity testing methods, in particular, as they research chemicals to determine which molecules to submit to EPA and bring to market.
Cultural Change Needed in Regulatory Offices
Jack Fowle, a former EPA scientist who moderated the Feb. 8 briefing, said cultural change is needed for EPA's regulatory staff to become accustomed to using data from advanced scientific technologies. Many long-time EPA officials put more trust in tests done on live animals as they perceive they are closer to human biology than computer-based tests.
EPA scientists in the agency's research office, by contrast, have been working in its National Center for Computational Toxicology to develop, refine and validate potential applications of these technologies.
Training staff, in combination with new legislation, could help spur cultural change, said Fowle, a private consultant and principal of Science to Inform, LLC. He moderated the meeting for the ACS' Committee on Environmental Improvement.
Educating Future Scientists
Separately, on Feb. 9, John Holdren, director of the White House Office of Science and Technology, and France Cordova, director of the National Science Foundation discussed efforts they are making to spur the next generation of scientists. Such scientists are needed to implement the innovation needed by what Holdren described as the “Industries of the Future.”
The National Science Foundation would receive $6.5 billion under the requested fiscal year 2017 budget, a 7 percent increase from its fiscal 2016 enacted level of $6.1 billion.
Cordova said the educational and research funding NSF provides increases U.S. leadership in environmental and other sciences.
During the Feb. 8 advanced science briefing, John Wambaugh, a computer scientist at EPA who leads the Rapid Exposure and Dosimetry Project, a key part of ExpoCast, stressed the agency's need for scientists who are skilled in cutting edge toxicity, exposure and risk assessment technologies.
At the OSTP briefing, Holden said the President's fiscal year 2017 budget request would provide $3 billion for federal science, technology, engineering and mathematics (STEM) programs.
This would include $332 million for graduate fellowships, $50 million for graduate traineeships, and $109 million for improving undergraduate education, Holdren said.
The requested budget would provide $4 billion in mandatory funding for the “Computer Science for All” initiative that President Obama proposed in 2015, according to a White House fact sheet.
The budget also would invest discretionary resources in Computer Science for All Development Grants for school districts to promote innovative strategies to provide high-quality instruction and other learning opportunities in computer science, the fact sheet said.
Two Bills Spurred Hill Briefing
The bills at issue are the TSCA Modernization Act (H.R. 2576), which sailed through the House June 23, 2015, on a 398–1 vote, and the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which the Senate approved unanimously by voice vote Dec. 17, 2015. Prior to the vote, the Senate bill was designated S. 697, but it passed as a substitute amendment (S. Admt. 2932) to H.R. 2576.
Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, and Rep. John Shimkus (R-Ill.), who chairs the House Energy and Commerce Subcommittee on the Environment and the Economy, have told Bloomberg BNA that merging the two bills and passing a final TSCA overhaul is a top priority (22 DEN A-14, 2/3/16).
The BASF Corp. and Procter & Gamble Co. are among the chemical companies spending tens of millions of dollars to develop new high-tech methods to evaluate the safety of their products (138 DEN B-1, 7/20/15).
A BASF official at the briefing asked whether EPA's regulators, such as the Office of Pesticide Programs, would be using the data from advanced scientific technologies to ease some regulatory procedures.
Kevin Crofton, deputy director of EPA's National Center for Computational Toxicology, said he could not answer that regulatory policy question.
Senate Bill Would Reduce Animal Tests
Willett, however, said the Senate bill's language on alternative tests would require the EPA's use of existing validated toxicity tests that could substitute for animal based ones.
The House bill would support EPA's use of advanced scientific methods but “by no means ensure it.”
The Senate version of H.R. 2576, includes a section called “Implementation of Alternative Testing Methods that would require EPA to promote the development and use of alternative test methods and testing strategies to reduce, refine, or replace the use of vertebrate animals.
Such test methods could include toxicity pathway-based risk assessment, in vitro studies, systems biology, computational toxicology, bioinformatics, and high-throughput screening, the bill says.
EPA also would be required to identify “alternative test methods or testing strategies that do not require new vertebrate animal testing and are scientifically reliable, relevant, and capable of providing information of equivalent scientific reliability and quality to that which would be obtained from vertebrate animal testing.”
Willett said emerging scientific research and development involving toxicity testing, exposure prediction and risk assessment methods combined with European laws that have required reduced animal testing, have proven to be “the most effective way possible” to ensure the tests and data they generate are used.
That benefits chemical manufacturers, by reducing testing costs, and benefits human health and the environment through improved toxicity tests, Willett said.
Basic Information Focuses Further Inquiry
Barbara Wetmore, a toxicologist working with ScitoVation, which develops and implements in vitro cell-based assays and computational approaches to assess potential health effects of drugs and chemicals, was among the panel members that showed specific new technologies that already can or are anticipated to generate useful information.
Wetmore, who recently left the Hamner Institutes for Health Sciences—formerly the Chemical Industry Institute for Toxicology—said research she conducted at Hamner generated data showing that the speed at which chemicals are processed by the liver and kidney and transported by blood can be combined with computer-based population-level exposure predictions.
Comparing the chemical concentrations in key parts of the body with predicted exposure concentrations can, in turn, be compared to concentrations of chemicals known to cause biological effects indicating potential health problems.
All that information can give regulators a toxicity and exposure comparison, or “margin of exposure,” to identify chemicals in the general population or amongst susceptible subgroups like children that warrant closer scrutiny, Wetmore said.

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(ACC Mentioned) How the Chemical Industry Made a Cancer Cluster Disappear

Feb 10, 2016 | VICE News

By David Heath

This story is being published jointly by VICE News and the Center for Public Integrity as the second installment of 'Science for Sale,' a four-part investigative series on the increasing influence of industry-backed research, funded by corporations steering millions of dollars to scientific consulting firms. The first part, Meet the 'Rented White Coats' Who Defend Toxic Chemicals, was published on February 8.
It began with a headache; then came shaking of the hands. Leuvell Malone's wife noticed unusual behavior. He struggled to button his shirt straight and crashed the car into the hot-water heater in the garage. Finally, a seizure landed the 55-year-old chemical worker in the hospital.
His doctor at first thought Malone might have suffered a stroke. But it turned out to be worse than that. The father of four had a rare and deadly brain tumor.
During his 32 years of greasing machines at the sprawling Union Carbide plant south of Houston, Malone feared the chemicals he breathed might one day make him sick, his sons recall. So he reported his illness to the local office of the US Occupational Safety and Health Administration.
That was in November 1978. Just a few days later, Bobby Hinson, one of Malone's co-workers, died of the same rare tumor, known as glioblastoma. He was 49 years old. OSHA inspectors went to the plant to find out how many other workers there had died of brain cancer.
To their surprise, the plant's medical director already had compiled a list of 10 names. "To walk in the front door without tracing through the population and come up with 10 brain cancers is just startling," an OSHA investigator, Dr. Victor Alexander, told a local reporter. Malone would die just three months after he was diagnosed.
More than 7,500 men had worked at the plant since it opened in 1941. Tracking those who had died was a daunting task. It took three years, but scientists at OSHA and their brethren at the National Institute for Occupational Safety and Health, or NIOSH, would discover 23 brain-tumor deaths there — double the normal rate. It was the largest cluster of work-related brain tumors ever reported, and it became national news, catching the attention ofThe Washington Post, The New York Times, and even Walter Cronkite.
The leading suspect was vinyl chloride, a chemical used to make polyvinyl chloride plastic. PVC is found in an endless array of products from plastic wrap to vinyl siding to children's toys. Industry studies already had found higher-than-expected rates of brain cancer at vinyl chloride plants, and in 1979, the International Agency for Research on Cancer, or IARC, part of the World Health Organization, took the unequivocal position that vinyl chloride caused brain tumors.
Yet today, a generation later, the scientific literature largely exonerates vinyl chloride. A 2000 industry review of brain cancer deaths at vinyl chloride plants found that the chemical's link to brain cancer "remains unclear." Citing that study and others, IARC in 2008 reversed itself."I think that borders on criminal"
However, a Center for Public Integrity review of thousands of once-confidential documents shows that the industry study cited by IARC was flawed, if not rigged. Although that study was supposed to tally all brain cancer deaths of workers exposed to vinyl chloride, Union Carbide didn't include Malone's death. In fact, the company counted only one of the 23 brain-tumor deaths in Texas City.
The Center's investigation found that because of the way industry officials designed the study, it left out workers known to have been exposed to vinyl chloride, including some who had died of brain tumors. Excluding even a few deaths caused by a rare disease can dramatically change the results of a study.
Asked hypothetically what it would mean if deaths were left out, James J. Collins, the former director of epidemiology at Dow Chemical, which merged with Union Carbide in 2001, said, "That wouldn't make very good science."
Richard Lemen, a former US assistant surgeon general and NIOSH deputy director, put it more bluntly: "I think that borders on criminal."
The vinyl chloride episode shows what can happen when scientific research is left to companies with a huge stake in its outcome. After launching a flurry of vinyl chloride studies in the late 1970s, OSHA and NIOSH abruptly stopped under the anti-regulatory climate instilled by the Reagan administration. The chemical industry, meanwhile, continued to update its studies and use them to defend against lawsuits by people blaming their brain cancers on vinyl chloride. The result was biased research that changed the scientific consensus. The final update of the largest vinyl chloride study is expected to be published this year.
The dominance of industry-funded research for specific chemicals has become more common as funding for biological research from the National Institutes of Health has become scarcer — declining 23 percent, adjusted for inflation, since 2003, according to the Federation of American Societies for Experimental Biology. In contrast, industry has shown a willingness to spend lavishly on research used in litigation.
The means regulators and courts sometimes must rely on scientific research paid for by companies with a huge financial stake in its outcome.
The vinyl chloride plant now owned by Dow Chemical in Texas City, Texas. (Photo by John Everett/Center for Public Integrity)
In a brief statement to the Center, the American Chemistry Council, the trade and lobby group that paid for the industry study, noted that the IARC determination that there is no association between vinyl chloride and brain cancer "was based on inconsistent findings among the available studies, lack of an exposure-response relationship, and small numbers of reported cases in most of the studies."
Otto Wong, the now-retired author of one of the study updates, expressed concern after hearing the Center's findings. If industry officials knew in advance that they were excluding the deaths of workers who may have been exposed, they should have designed the study differently, Wong said.
Ongoing environmental hazard
Despite stricter regulations on vinyl chloride in the workplace since 1975, the question of its health effects remains relevant. PVC plants in places such as Calvert City, Kentucky, and Plaquemine, Louisiana, still emit vinyl chloride into the air. In 2014, companies reported releasing more than 500,000 pounds of it, according to the U.S. Environmental Protection Agency. The EPA is expected to decide this year whether to set stricter emission limits for vinyl chloride and other chemicals discharged by PVC plants.
There have also been notable cases of vinyl chloride contamination. In 2012, a train derailment in Paulsboro, New Jersey, released heavy concentrations of the chemical into Mantua Creek, sending 250 people to the emergency room and stoking fears of long-term health effects. "I'm going to be worried for the rest of my life," said Alice Breeman, a mother of three who was caught in the release and sued Conrail, CSX Transportation and Norfolk Southern Railway. CSX and Norfolk Southern have since been dismissed as defendants.
In 2014, residents of McCullom Lake, Illinois, settled an eight-year-old lawsuit in which they claimed exposure to vinyl chloride that bled into groundwater from a nearby chemical plant, now owned by Dow, had caused a cluster of 33 brain tumors. The village has just over 1,000 residents. Dow admitted no wrongdoing in the settlement, whose terms are confidential.
Today, all legal disputes and regulatory actions on vinyl chloride must rely heavily on industry studies given the dearth of independent research. An industry-sponsored update in 2000 — the largest and most-cited vinyl chloride study — reported 36 brain cancer deaths at 37 vinyl chloride plants among workers employed from 1942 to 1972. Despite the small number of cancers, that rate was 42 percent higher than what would have been expected in the general population.
By the slimmest of margins, however, the number of deaths failed to meet a standard known as statistical significance – at least a 95-percent certainty that the high rate of brain cancer was not simply a fluke. Even one more death could have altered that conclusion.
The Center was able to scrutinize how that study was designed and conducted after obtaining nearly 200,000 internal industry documents from lawyer William Baggett Jr. He spent nine years on a lawsuit filed by Elaine Ross, whose husband, Dan, worked at a vinyl-chloride plant in Lake Charles, Louisiana, and died from brain cancer in 1990 at the age of 46. The case was settled 15 years ago for several million dollars, Baggett said, adding that the exact terms were confidential.
The Washington Post on February 19, 1979.
Vinyl chloride first gained notoriety in 1974, when it was revealed that four workers at a B.F. Goodrich plant in Louisville had died of angiosarcoma of the liver, a cancer so rare that typically no more than 25 cases per year are reported in the United States. The most recent tally of liver angiosarcomas among people exposed to vinyl chloride is 197 worldwide, including 50 in the U.S.
The evidence of carcinogenicity in the Louisville case was so overwhelming that the plastics industry couldn't deny it. Still, the industry pushed back against new regulations, saying they could cost the nation up to 2.2 million jobs and cripple the plastics industry.
OSHA nonetheless went ahead in 1974 with a workplace limit for vinyl chloride that was 500 times stricter than the one in place when the Louisville cluster became public knowledge. The US Food and Drug Administration banned the chemical from use in cosmetics and hair spray. Industry predictions of severe losses never came true. The regulations were met.
The vinyl chloride studies most often cited today — including a major study soon to be published — in fact are updates of a study first done in 1974. After companies learned of workers suffering from angiosarcoma, they quietly decided to find out what other cancers vinyl chloride might be causing."Doesn't even reach the level of being junk science"
The industry study was flawed from the start. The weaknesses built in to it only became worse as decisions were made on how to update it.
In June 1973, the industry's trade group, then known as the Manufacturing Chemists' Association, hired the consulting firm Tabershaw-Cooper Associates to tabulate cancers at vinyl-chloride plants. The first challenge was to compile a list of workers exposed. Rather than let scientists at Tabershaw-Cooper ultimately decide which workers should be put on the list, the chemical companies assigned the task to their own plant managers. At Union Carbide, managers decided to include only people working directly with vinyl chloride, based on some written records but also on supervisors' distant memories.
Until the mid-1970s, exposure data was crude to non-existent. The managers reasoned that workers' recollections of the potency of odors — categorized as high, medium or low — would be one way to estimate exposures. Jim Tarr, who worked as an air pollution regulator in Texas at the time, said such a method "doesn't even reach the level of being junk science."
Tarr, now an environmental consultant in Southern California, said it's ridiculous to expect anyone to remember distinct odors years after the fact. In fact, vinyl chloride can be smelled only at levels far higher than even the old regulations allowed.
Tabershaw-Cooper's final report — without revealing the methods used — said that measuring exposures at the plants "proved generally to be impossible." It acknowledged that managers' techniques for determining levels of exposure were "subjective" and had "questionable validity."
Even with this problematic data, Tabershaw-Cooper reported in 1974 that there were more brain tumors than expected at vinyl chloride plants. A follow-up completed in 1978 reported that brain cancers at vinyl-chloride plants were occurring at twice the normal rate.
Built-in weaknesses
There was evidence from the start that Union Carbide workers in Texas City who died of brain cancer had been exposed to vinyl chloride. When news of the first 10 brain cancers at the plant broke in 1979, Union Carbide's Gulf Coast medical director, Dr. David Glenn, acknowledged as much while also trying to deflect blame from the chemical.
"Although the press has strongly indicated that vinyl chloride may have been the culprit, only about one-half of our [brain cancer] cases had any known exposure to this chemical," he said in a statement.
Yet none of those workers was included in the study updates that have formed the bedrock of today's scientific consensus. The only brain cancer death from Texas City included in these updates was that of Luther Ott, a 57-year-old production worker who wasn't even diagnosed until a month after the medical director's statement. Ott died in February 1980.
Chemical industry officials knew before they hired Otto Wong to do an update that none of the 10 brain cancer deaths in Texas City had been included in previous studies, even though Glenn said half of the workers had been exposed to vinyl chloride.
One week after Glenn's statement, Union Carbide's corporate medical director, Dr. Mike Utidjian, told an industry task force that none of the 10 Texas City victims had a "clear cut"exposure. Nor were any included in previous studies.
Wong said it would have made more sense to start the study over rather than update a flawed one. "From the scientific point of view, a better approach would be to do a new study," he said. That would entail reanalyzing which workers were exposed and which weren't.
In fact, by March 1981, scientists at Union Carbide had determined that at least four of the workers who died of brain cancer had been exposed to vinyl chloride. The biostatistician who wrote that memo, Rob Schnatter, declined to comment for this story.
Schnatter did not keep the four dead workers a secret. He and another Union Carbide scientist acknowledged them in an article published in 1983.
Schnatter wanted to amend which workers were in the industry study. In 1982 he sent a memo to his colleagues at Union Carbide, one of whom wrote a handwritten response : "No, we are not adding people to the cohort."
This reflected a critical decision that all but guaranteed the study's outcome. According to the protocol, workers included in the original study could be dropped from updates if new information showed they hadn't been exposed to vinyl chloride. But the reverse wasn't true. Workers not initially included in the study couldn't be added even if it turned out that they had been exposed, according to a Union Carbide memo.
In 1974, Tabershaw-Cooper, the consulting firm, was given a list of 431 exposed workersfrom Texas City. But when the study was updated a decade later, the number of exposed workers had dropped to 289 names.
Susan Austin, a Union Carbide epidemiologist at the time, complained in an internal memothat the odd rules for reclassifying whether workers were exposed "could lead to substantial bias."
Collins, the former Dow epidemiologist, said it should been nearly impossible to cheat on this type of study. When scientists are deciding which workers were exposed to a chemical, they usually don't know which ones have died. Therefore, they can't skew the outcome by excluding dead workers.
"There's no way to fudge the data," Collins said.
But in this situation, Union Carbide did know which workers had died. It also knew it was excluding workers who had been exposed to vinyl chloride. The Center found no evidence that Union Carbide removed workers with brain cancer who had been in the original 1974 study. But the documents show that when the study was updated, at least three brain-cancer victims Union Carbide knew had been exposed were not included.
"It looks like they did leave them out by their own admission," said former NIOSH official Lemen, who at one time served as a consultant for lawyer Baggett.
Kenneth Mundt, the lead author of the most recent update of the vinyl chloride study and a principal at the consulting firm Ramboll Environ, at first promised to answer questions from the Center. But weeks later, Mundt said that the study's sponsor, the American Chemistry Council, wouldn't allow him to talk because of pending litigation.
A Dow spokesperson said, "If Texas City workers met the eligibility criteria … then they would have been included in the industry-wide study, regardless of the cause of death …. Not all Texas City workers had opportunity for exposure to vinyl chloride."
'Unusual' decisions
Documents show that more than three exposed workers might have been excluded from the updates. That's because of a decision made in the early 1970s not to include people who were not stationed full-time in departments having direct contact with vinyl chloride. OSHA and NIOSH scientists noted that many of the brain cancer victims held jobs that would have brought them in contact with chemicals throughout the plant. They listed seven in maintenance, two in shipping and three in construction.
Leuvell Malone Sr. worked in maintenance. His son, Leuvell Malone Jr., said he had no idea Union Carbide claimed his father hadn't been exposed to vinyl chloride.
"He was all over the plant. He did all of the oiling for all of the machinery," Malone said. "He had to be exposed."
Leuvell Malone Jr. says he had no idea Union Carbide denied that his father, who died of a rare brain tumor, had been ex posed to vinyl chloride. (Photo by John Everett/Center for Public Integrity)
Internal Union Carbide documents show that the company didn't dismiss the possibility that 10 other workers who died of brain cancer also may have been exposed to vinyl chloride.
In fact, exposures may have been far more widespread. In the plant's own report to the Texas Air Control Board, which regulated air emissions at the time, Union Carbide said it released 940 tons of vinyl chloride into the air in 1975. That was after the company had implemented new pollution-control measures.
The Air Control Board calculated that in 1974, the Texas City plant released 3,000 tons of vinyl chloride — 12 times the emissions from all U.S. plants combined in 2014.
Collins said the emissions data don't prove that everyone at the plant was exposed to vinyl chloride. But Tarr, who calculated the numbers at the time for the state of Texas, disagrees.
"There's no question whatsoever that everyone who worked in that plant was exposed to vinyl chloride," he said. "It was only a question of, what was the amount of that exposure and what was the duration of that exposure?"
Union Carbide strategized for nearly two years on how to limit the threat from government studies of the Texas City cancer cluster. One Union Carbide lawyer advised internally that the more brain cancer deaths there were, the easier it would be for widows like Leuvell Malone's wife, Ada, to win lawsuits.
The company decided to do its own analysis simultaneously, reasoning that "Independent investigations of the same set of data frequently yield differing results."
The company also decided to hold a press conference to announce its results first, telling NIOSH just two days in advance. The story was front-page news.
"Our exhaustive studies neither indicate that any deaths due to brain cancer have been caused by occupational exposure, nor do they suggest any changes to our existing employee health programs or production procedures," plant manager Damon Engle said in a press release.
Union Carbide said only 12 employees had died of malignant brain tumors. Although earlier press reports had been higher, medical specialists at the company were quoted as saying that nine of the brain cancers "were winnowed out of the final statistical findings.""There were times when we couldn't have our windows open in the summer. The smell was so bad that it would hurt your eyes"
NIOSH was blindsided by Union Carbide's tactics. When the agency released its own findings two weeks later, media attention already had waned. NIOSH had counted 23 brain-tumor deaths, a rate that was double the national average. And it blamed the deaths on chemicals at the plant.
'It still hurts'
The chemical industry has used its most recent studies in lawsuits to argue that vinyl chloride doesn't cause brain tumors.
Frank and Joanne Branham grew up in the small village of McCullom Lake, Illinois, about 60 miles northwest of Chicago, and loved it there. When they got married, they built a home right on the lake. But there was one problem: the odor from a nearby chemical plant.
"There were times when we couldn't have our windows open in the summer," Joanne recalls. "The smell was so bad that it would hurt your eyes."
In 1998, they moved to Arizona. Six years later, Franklin Branham started having seizures. Finally, his doctor diagnosed glioblastoma, the same rare brain cancer that had killed Leuvell Malone. Branham had only three months to live.
Joanne still breaks down talking about the day Franklin died. "It's been 11 years, but it still hurts," she said.
Not long after her husband's death, Joanne visited McCullom Lake and talked to her former next-door neighbor, Bryan Freund. She discovered that Freund had the same type of cancer. Freund's next-door neighbor, Kurt Weisenberger, had it, too.
Joanne said it was obvious to all of them that the cause was environmental.
"It doesn't take a scientist," she said. "That just doesn't happen."
They hired an attorney and filed a lawsuit claiming that a nearby plant had dumped toxic chemicals into a lagoon. They alleged that they were poisoned by vinyl chloride and other volatile chemicals.
Eventually, 33 people around McCullom Lake developed brain tumors.
Freund, one of only two brain cancer survivors from the town, has been dealing with his illness for more than a decade and said he is constantly exhausted. One year ago, he had surgery "to remove a whole bunch of my brain. They've taken out so much I cannot believe it," he said.
He's now back on chemotherapy.
Dow Chemical, which now owns Rohm and Haas, denies that people in the community were exposed to vinyl chloride, though it settled the case with the brain cancer victims about a year ago. During the litigation, the company hired expert witnesses who cited the Mundt study to prove that the brain tumors couldn't have been caused by vinyl chloride.
One such expert, Peter Valberg of Gradient Corp., wrote that the families in McCullom Lake were citing early studies linking vinyl chloride to brain cancer but failed to cite more recent reviews.
"These in-depth summaries and updates of worker cohorts do not support a causal link between VC exposure and brain cancer," Valberg wrote.
Aaron Freiwald, the lawyer for the McCullom Lake families, said the scientific consensus today doesn't account for the fact that workers were excluded from industry brain cancer studies.
"We established that even one accounted-for brain cancer would completely shift the data," Freiwald said. "If there are at least three additional cases, it seems pretty clear that the literature on vinyl chloride and brain cancer as it is has to be rewritten."
David Heath is a senior reporter with the Center for Public Integrity, a non-profit, non-partisan investigative news organization in Washington, DC. Follow him on Twitter:@davidhth

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(ACC Mentioned) 'Rented White Coats' Vouch for Safety of Lead, Asbestos

Feb 9, 2016 | E&E Greenwire

When corporations want to find scientists to publish questionable studies and expert witnesses to tout novel theories in court, some researchers are willing to play ball.
As federal funding for science declines, experts say, corporate interests are having an easier time dictating their own science and finding scientists to play along.
These kinds of studies are fodder for companies to stall rulemakings on health and safety issues and to fight personal injury lawsuits in court.
When Evan Nelson of law firm Tucker Ellis & West LLP wanted to argue a "revolutionary" theory that mesothelioma is caused by tobacco, not the asbestos manufactured by the firms he was representing, he turned to Peter Valberg, a principal at environmental consulting firm Gradient Corp.
"It is amazing that no one has pout [sic] this together before me, but I am confident that you will agree it is solid science that proves tobacco smoke causes mesothelioma -- you just have to look at the tissue [sic] through the proper lense [sic]," Nelson wrote.
Valberg quickly agreed to complete the study, calling it "very intriguing."
In 149 studies published by top Gradient scientists, 98 percent found the substance being studied was harmless at normal exposure levels -- even products like asbestos, lead and arsenic.
"They truly are the epitome of rented white coats," said Bruce Lanphear, a Simon Fraser University professor.
Gradient also often publishes rebuttal letters in scientific journals casting doubt on others' research, including Lanphear's work showing that even tiny amounts of lead can harm children. The American Petroleum Institute, American Chemistry Council and Texas Commission on Environmental Quality are also clients of Gradient.
The company has "a reputation of misrepresenting the science consistently," said Bert Brunekreef, director of the Institute for Risk Assessment Sciences at Utrecht University in the Netherlands.
Gradient officials declined to comment, but its website states it "has applied sound science and rigorous data analysis to help our clients resolve challenging environmental problems" (David Heath, Center for Public Integrity, Feb. 8). -- SP

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EPA's Chemicals Work Fast-Tracked Under Budget Request

Feb 10, 2016 | BNA Daily Environment Report

By Pat Rizzuto

The Environmental Protection Agency's requested budget for chemical and pesticide management and research in fiscal year 2017 is $624.7 million, a $51.9 million increase from the FY 2016 enacted level.
Much of that increase would fund accelerated “Work Plan” chemical risk assessments by the Office of Pollution Prevention and Toxics, according to EPA's Budget in Brief.
Under the Work Plan initiative started in 2012, the office is assessing risks posed by particular uses of about 80 industrial chemicals in commerce.
If adequate risk data are available, “EPA expects to complete risk assessments for 21 of these chemicals in FY 2017,” according to the Budget in Brief, which provides an overview of the proposed budget and activities.
“These expanded resources will allow EPA to initiate assessment on more chemicals and, in turn, enable the EPA to make greater progress towards its ambitious target for completing by the end of FY 2018 assessments of all 67 original TSCA Work Plan chemicals that remain on the refreshed list,” according to the budget document.
Figures from the Chemical Safety budget request contained in Goal 4 of the Budget in Brief and Congressional Justification combine some funding requests for the Office of Research and Development (ORD) with requests for the overall Office of Chemical Safety and Pollution Prevention (OCSPP), which includes industrial chemicals, pesticides and endocrine disruptors. Some budget documents released—including parts of the Congressional Justification—separate ORD and OCSPP funding into the agency's Science and Technology and Environmental Programs and Management accounts.
Whether TSCA Amended or Not
Mark Greenwood, an attorney who directed OPPT from 1990 to 1994, discussed with Bloomberg BNA the potential implications of the substantial new resources the EPA plans to devote to its Work Plan chemical risk assessment activities.
“This work would certainly be necessary if [legislation to update] TSCA passes, because EPA will need to respond quickly in the Section 6 [restrictions and bans] program on issues of prioritization and risk assessment,” said Greenwood, now with Greenwood Environmental Counsel PLLC.
EPA's efforts on the Work Plan chemicals will prepare them for such obligations, Greenwood added.
“If TSCA does not pass this year, that same investment of resources will continue to advance the EPA's existing program under the current law,” he said.
Section 6 of TSCA authorizes the agency to take a wide variety of actions such as requiring labeling or warning instructions, restricting particular uses of a chemical, regulating its disposal, or even outright bans.
The EPA has not initiated a Section 6 rulemaking in 24 years, since a court invalidated its 1991 rule seeking to ban most uses of asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
Jim Jones, EPA assistant administrator of chemical safety and pollution prevention, previously told Bloomberg BNA the agency plans to propose three Section 6 rules in 2016(08 DEN B-8, 1/13/16)
Boosting Regional Staff
The proposed budget also would allow the EPA to expand the regional staff with expertise in TSCA programs, according to the Budget in Brief.
“Currently there are only three FTE [full-time equivalent employees] in regional offices focused on TSCA; this investment will bring that number up to 13 FTE,” the document said.
Those staff could help leverage state, local and tribal chemical management activities, the Budget in Brief said. Over the past 10 years, California, Washington, New York and some other states have dramatically increased their chemical management activities as illustrated by suggestions state attorneys general recently provided key members of Congress regarding reauthorizing TSCA .
Endocrine Disruptors, Pesticides, Pollinators
The requested funding also would continue to expand the agency's Endocrine Disruptor Screening Program's (EDSP) use of automated toxicity tests and other advanced toxicity and exposure prediction technologies, according to the agency's budget document. Such advanced technologies can help the agency prioritize chemicals that warrant further scrutiny, scientists said at a Feb. 8 briefing of Capitol Hill staff and other interested parties (see related story).
The requested budget would provide $128.3 million to the Office of Pesticide Programs to support the agency's pesticide applications review and registration program, according to the EPA's Congressional Justification.
“The EPA will continue to work to improve pollinator health by performing laboratory and technical analysis on pollinators such as honeybees and monarch butterflies as well as related resources such as hive structures,” the Congressional Justification said.
Endangered Species' Risk Assessments
The budget request also would allow the EPA to invest “substantial resources” to improve the compliance of pesticide registrations with the Endangered Species Act, the Congressional Justification said. ESA assessments have grown in controversy as they have been used to constrain pesticide uses.
The investment would help the EPA implement recommendations made in 2013 by the National Academies of Sciences. The 2013 report, “Assessing Risks to Endangered and Threatened Species from Pesticides,” urged federal agencies that conduct scientific assessments on the risks posed by pesticides to endangered and threatened species to develop a “common, scientifically credible approach” (84 DEN A-11, 5/1/13)
With assistance from Steven Gibb in Washington, D.C.

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State Authorities Weigh in on Senate and House TSCA Reform Bills

Feb 9, 2016 | Environmental Defense Fund

By Richard Denison

In recent weeks, two documents have been released by state government officials and organizations that take a deep dive into those aspects of the Senate and House bills to reform the Toxic Substances Control Act (TSCA) most relevant to them. The documents explicitly point to specific provisions in one or both bills that are preferred or opposed.
The bills the documents compare are the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), passed by the full Senate on December 17, 2015; and the TSCA Modernization Act of 2015 (H.R. 2576), passed by the House of Representatives on June 23, 2015.
Here are the documents:Environmental Council of the States (ECOS): An 11-page table dated January 7, 2016 posted in the “Featured” section of ECOS’ home page provides a side-by-side comparison of the two bills, focused mainly but not exclusively on state-federal relationship issues. (Note that the preamble to the table indicates it does not represent a formal consensus, and many of the indications of preferences begin with a qualifier such as “Many states believe … .”)12 State AGs letter: A 7-page letter dated January 19, 2016 signed by the Attorneys General of 12 states (MA, CA, HI, IA, ME, MD, NH, NY, OR, RI, VT and WA) to the relevant Senate and House committee Chairmen and Ranking Members sets forth principles for state-federal relationships under TSCA reform and provides recommendations for reconciling those provisions of the Senate and House bills.
Both documents are well worth reading in their entireties. To help me understand them, I have developed the table below that lists each specific provision identified in these documents for which a preference or opposition has been expressed or is readily discernible with respect to the Senate or House bill.
In order to be as objective and consistent as possible:the table is limited to provisions that are identified as either supported/preferred or opposed/criticized in one of the two bills (i.e., any provisions found in both bills or neither bill are not listed);weights are not assigned to provisions; rather, each provision for which there is an indication of preference or opposition is listed;references other than to actual text in one or both bills (e.g., the ECOS table’s reference to Senate report language on EPA’s Safer Choice program, which is not addressed in the bill text) are not listed; anddouble-counting is avoided by listing only once cases where the same provision is referenced more than once or where a provision is supported in one bill and criticized in the other.
In the table below:an “S” indicates a clear preference for a provision in the Senate bill or opposition to a provision in the House bill that is not in the Senate bill,an “H” indicates a clear preference for a provision of the House bill or opposition to a provision in the Senate bill that is not in the House bill, anda “–” indicates a provision that was not discussed, or on which a clear position was not expressed, in one of the two documents.

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Erin Brockovich: It’s Not Just Flint—America Has a Scary Water Problem

Feb 10, 2016 | TIME

By Erin Brockovich and Ken Cook

Most Americans take our drinking water for granted: turn the tap, fill a glass and drink. Only when a community’s health and safety are imperiled do we pay heed to the threat of industrial chemicals in our water supplies. The grave danger of lead poisoning to the children of Flint, Mich., has rightly riveted the nation’s attention, but another shameful and all too familiar story is unfolding in a village in upstate New York.
The water in Hoosick Falls, N.Y., isn’t poisoned with lead, but with a chemical that for decades was a key ingredient in making Teflon and hundreds of other products. Perfluorooctanoic acid, or PFOA, belongs to a class of chemicals that have invaded the bodies of people and animals in the farthest reaches of the globe. PFOA pollutes the blood of almost all Americans and can pass from mother to unborn child in the womb. It builds up in our bodies, and studies have shown it can cause cancer, reproductive disorders and other serious illnesses.
The contamination of Hoosick Falls’ water was revealed through tests paid for by resident Michael Hickey, who became concerned over the unusual number of cancer cases in the village. His father died of kidney cancer in 2013.
Hickey’s tests detected PFOA in the town’s water at levels well above the non-enforceable health advisory of the U.S. Environmental Protection Agency. As in Flint, local and state authorities downplayed the threat, but Hickey and others would not be silenced. In December, the EPA finallywarned residents not to drink or cook with the water.
Since 2013, a nationwide EPA program to sample water for unregulated contaminants found PFOA in 103 public water systems in 27 states. But no tests were conducted in Hoosick Falls because the water supply serves fewer than 10,000 people. New Jersey officials did more extensive tests using stricter methods, and found that EPA’s protocols would have missedthree-fourths of the contamination by PFOA and related chemicals in the state.
Saint-Gobain Performance Plastics, the plant where Michael Hickey’s father worked for 32 years, used PFOA to manufacture heat-resistant wiring. The company is providing bottled water for residents and paying for a filtration system
It’s a story we know too well.
Last year an Ohio woman won a $1.6 million settlement against DuPont for kidney cancer caused by exposure to PFOA. She was among tens of thousands of people whose water was poisoned by PFOA from DuPont’s plant in Parkersburg, W.Va.. More than 3,000 other area residents aresuing DuPont, but it could take the best part of a century to try all the cases.
Internal DuPont documents show that the company had long known PFOA was hazardous and was fouling water systems. Today neither DuPont nor other makers and manufacturers of PFOA have revealed all the places the chemical may be lurking in drinking water.
These companies should immediately disclose every place PFOA was manufactured, used or dumped. EPA and local and state authorities should make sure the water in each location is tested.
But that’s trying to deal with the problem after the fact. The bigger problem is the nation’s broken and outdated chemicals law. The Toxic Substances Control Act is so toothless that DuPont was able to keep the truth about PFOA secret. When the EPA found out, DuPont was fined a tiny percentage of its profits from Teflon. Lacking authority to ban the chemical outright, EPA had to negotiate a phaseout that ended last year.
During the 10-year phaseout, DuPont and other companies introduced dozens of similar chemicals to the marketplace that likely have not been adequately tested for safety. In many cases, even the names of these replacement chemicals are trade secrets.
Last year, Congress passed two bills to update the Toxic Substances Control Act. But neither goes nearly far enough to protect public health. Real reform would ensure that new chemicals and those already on the market are safe, and that the most dangerous substances are quickly reviewed and regulated. Otherwise, more tragedies like those in Flint, Hoosick Falls and Parkersburg are sure to surface.

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Chemical Distributors Get New International Body

Feb 10, 2016 | Chemical Watch

By Geraint Roberts

Chemical distributors now have an incorporated trade body, which will seek to recruit member companies, raise subscription revenue and be run by a secretariat and policy board.
The new organisation, the International Chemical Trade Association (ICTA), is based in Brussels and was founded by the European Association of Chemical Distributors (Fecc), the US National Association of Chemical Distributors (NACD), the German and British associations VCH and CBA and a number of major companies. Fecc is providing the secretariat.
The body replaces the International Council of Chemical Trade Associations (ICCTA), an association of associations which lacked a secretariat and a budget.
Chemical Watch understands that the change was driven by certain companies, which felt more needed to be done to expand influence to more countries, to spread best practice – including the Responsible Care and Responsible distribution programmes – and level the playing field in countries outside the more advanced economies.
Fecc director general Uta Jensen-Korte told Chemical Watch that “in principle, the new ICTA is a continuation of the virtual ICCTA. However, it is intended to extend and strengthen its activities in the future.”
The new body’s website says it will coordinate international activities that take place on a global level, such as UN regulations on the handling, transport, management and security of chemicals.
It has invited China’s CCCMC, Brazil’s Associquim, the Mexican and Canadian distributor associations and national associations in Europe to join – all of whom belonged to the old ICTA.
The interim director general is former Biesterfeld CEO, Birger Kuck.

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Can Manufacturing Save the World? Inspiration from Tesla, Owens Corning

Feb 10, 2016 | Green Biz

By James Connelly

Manufacturing and industrial production long have been the poster children for what is wrong with our current economic system. For decades, the environmental movement has been focused on battling industry to clean up its act. It is assumed that business is bad and that economic growth is necessarily at odds with protecting the environment.
These assumptions are not unjustified. In fact, progress in science, technology and the industrial revolution can be largely to blame for many key issues that are dramatically impacting our planet: CO2 levels continue to rise well past levels considered safe to maintain our current climate and way of living; synthetic persistent toxic chemicals can be found in almost all life on earth, with profound environmental and public health consequences; and overdraft of water supplies is depleting geological reserves not replaceable on the timescale of human lifespans.
While the story of our technological progress can be viewed in a very negative light — showing how technology largely has served to provide humanity the capability for even greater, more profound and more dangerous impact on the planet. It also can be viewed as a story of incredible progress — a series of extraordinary feats in engineering and ingenuity, with a global impact that is truly awe-inspiring.
Since the Industrial Revolution, although we continue to lag behind many areas of the world, we have seen massive progress globally in public health, poverty alleviation and economic empowerment. But that progress has come at a cost, and our ecological debt is coming due.
However, assuming that industrial production is necessarily negative discounts humanity’s capacity for innovation. We have done incredible things before — conquered space travel, cracked the atom, created a global communication network that has transformed industry and commerce. Now it is time to harness the same ingenuity and creativity to effect positive change on the environment.
There are key signs that the transition to a truly regenerative economy is already underway.
The Living Product Challenge puts forth a radical vision: Can we remake our global product system of manufactured goods to create a framework in which industry works in harmony with nature and to the benefit of society and the environment? Fortunately there are key signs that the transition to a truly regenerative economy is already underway.Green chemistry
The incredible rise in CO2 emissions since the Industrial Revolution has been paralleled by a growth in the production of synthetic chemicals and compounds. This is not surprising, as petrochemical derivatives, the leftovers of fossil fuel production, are the building blocks of modern plastics and synthetic chemical industry. This also makes them artificially cheap; not only are they often waste products of fuel production, they benefit from the fossil fuel subsidies.
Many of these synthetic materials are persistent, bio-accumulative toxic compounds that never before have existed in nature and don’t break down in the environment.
They are showing up in all life forms on earth, and the overall toxic load in humans are increasing. Toxic chemicals such as mercury are found in 89 percent of children in the U.S., Bisphenol A in 96 percent and halogenated flame retardants in nearly every child, while autism, asthma and other chronic diseases are on the rise. The links between these chemicals, the built environment and health outcomes are becoming increasingly clear.
As John Warner, widely considered the father of green chemistry, has stated, we must redesign the fundamental building blocks of our industrial economy if we are to create a truly sustainable future. He argued that we should design new molecules and chemical processes that are inherently less dangerous and energy intensive. By starting with the right inputs, we can create industrial processes that actually work within natural systems, instead of degrading them.
Innovative companies such as Evocative Design are illuminating a new path forward. Instead of creating plastic foam derived from fossil fuels that have to be extracted, refined, coated with toxic flame-retardants and shipped across the globe, it creates foam by growing mushroom spores in an agricultural medium. Through this process, Evocative literally can grow a product that can be used for plastic foam, chair backing and product packaging.
We can create industrial processes that actually work within natural systems, instead of degrading them.
Green chemistry even can offer the potential to solve current environmental issues. In an inspiring example of industrial ecology, a start-up called Blue Planet is completely reimagining the production of concrete, one of the most common building products. Concrete is composed of water, aggregate, cement and various other admixtures that influence its performance and strength. Portland cement, the most common cement, is produced by calcining limestone (CaCO3) under extremely high heat, which drives off CO2 to create calcium oxide (CaO). The energy used to produce heat and the CO2 that is released as a result of the calcination process makes Portland cement production one of the world’s largest greenhouse gas emitters.
Blue Planet is revolutionizing this process by using calcium carbonate cement instead of calcium oxide. The calcium is derived from seawater and the carbonate comes from CO2 harvested from the flues of coal-fired power plants, producing both cement and limestone that can be used for aggregate. Instead of generating greenhouse gases, this process sequesters tons of CO2 that would have been released in the atmosphere. As an added benefit, the process of concentrating calcium to create limestone is complementary to the demineralization of water necessary for desalination, a growing need as our water resources decline. Net positive enterprise
A growing group of companies and NGOs recognize that simply reducing a company’s negative impact is not enough. Companies also must maximize the positive impact of their products and operations. In the Living Product Challenge, we not only ask companies to reduce their negative impacts of footprints, but also maximize their positive impact, or handprints — a measure of the sum total of positive actions versus business as usual.
This growing net positive movement is igniting innovative entrepreneurs and large multinational corporations alike. Jeffrey Hollender, the co-founder of Seventh Generation, stated, "Net positive is the most promising and hopeful framework that I’m aware of. If pursued by business, [the net positive mindset] would lead to dramatic positive impact for the planet and society."
An entrepreneurial start-up and pilot for the Living Product Challenge, Bureo Skateboards, has founded its business on the concept of net positive (or rather, net positiva). The company trains and empowers mainly unemployed women in Chile to gather discarded fishnets (nearly 10 percent of plastic pollution in the ocean). The fishnets are collected and repurposed into a resin used to produce skateboards and other high-quality goods. The company also recycles a portion of the proceeds back into coastal communities.
Growth in revenue and profit for sustainable products is significantly outpacing conventional products.
Net positive strategies not only make good social and environmental sense, they also make good business sense. As consumers become more aware and concerned about the impact of their decision on the environment and society, sustainable products and services are becoming more valuable. A recent report from the Conference Board shows that growth in revenue and profit for sustainable products is significantly outpacing conventional products.Energy
The Living Product Challenge not only asks companies to create products that are net positive energy across their lifecycle, but also requires that the factories in which the products are produced are completely powered by renewable energy. The rapid decline in the cost of solar and wind energy is making switching to renewable energy increasingly economical.
In the state of Hawaii, solar energy is already significantly cheaper than buying it from the grid. In fact, renewable energy is already at grid parity in the U.S. as a whole, although individual states lag behind. At this point, it is no longer cost that is holding us back from a completely renewably powered future, but a slow-moving utility and energy distribution system that is deeply invested in the current paradigm.
Innovative companies are overturning many previously held views about how rapidly we can switch over our energy grid. Tesla Powerwall is one of those disruptive innovations. All of a sudden, utilities that have been resisting distributed power generation with backward net metering restrictions and limits on solar array sizes are facing the possibility that customers will defect from the grid. As the cost of energy storage comes down, producing and storing your own energy is quickly becoming cheaper than a connection to the grid.
Innovative companies such as One Earth Designs, a pilot for the Living Product Challenge, are developing disruptive new technologies — in this case, solar ovens that could help the developing world leapfrog over many infrastructure challenges that have plagued the developed world. Just as the cellphone has eliminated the need for massive, centralized technology, communication and banking infrastructures, solar ovens and renewable energy with on-site storage could make traditional centralized power generation systems obsolete.Water
The Living Product Challenge asks manufacturers if they can operate within the water balance of their site and create a water handprint that is greater than the water footprint of the product across its lifecycle. While the short-term economics of water are not as compelling as energy, the business risks are perhaps much larger.
Climate scientists describe the ongoing drought in California as the beginning of a 100-year megadrought across the American West. We have depleted geological reserves left over from the last ice age to a point where we simply can’t drill or pump our way out of the problem.
If companies and industries work together to demand transparency and better materials using a common framework, we could see rapid progress.
As the LPC team has been traveling across the country meeting with manufacturers to pilot the program, it is continually surprising to see large warehouse roofs where rain is considered stormwater runoff, a nuisance that must be "managed." Given the business risks of declining water resources, doesn’t it make business sense to turn rain into a beneficial resource?Transparency + open innovation
Overcoming the inertia of an entrenched industrial system with networks of sprawling supply chains and vested interests will not be easy. It took an incredible amount of time, effort, persistence and human ingenuity to get where we are, and making progress in turning the ship around will require re-thinking many of the ways we have done business in the past.
Consider the electric car industry. Elon Musk realized that if his company were the only one to pursue electric batteries and the infrastructure to support Tesla’s fleet of vehicles, he could be the largest player in a small market. Tesla’s progress would be limited. So Tesla went against standard practice of keeping business information confidential and instead released its battery technology and patents in an open innovation strategy so that the company can be part of a broader, industry-wide transformation.
A similar transformation is underway in the way that companies approach the inventory and screening of chemicals used in their products. Just three years ago, it was assumed that companies in the building product industry simply would not disclosure the ingredients they were using in products under any circumstance.
A whole infrastructure of proprietary certification programs evolved based on this assumption, and chemical analysis screening and assessment was incredibly expensive, as each company had to analyze its own ingredients and supply chain in isolation. However, since the release of Declare and other transparency platforms, leading manufacturers are fully disclosing their ingredients, and many more are following in their footsteps.
Transparency and open innovation are fundamental to industry transformation for two reasons. First, transparency gives consumers knowledge to make good choices about the healthiest products to use (as well as product designers when they are selecting materials).
Second, transparency creates a system of shared learning and collaboration where the entire industry can advance together through open innovation, instead of each company struggling in isolation to inventory and assess chemicals in its own platform. If companies and industries work together to demand transparency and better materials using a common framework, we could see rapid progress.
Just three years ago, it was assumed that companies in the building product industry simply would not disclosure the ingredients they were using in products.
To facilitate this kind of uncommon cooperation, the Institute has created the Living Product 50 (LP50), a group of 50 companies dedicated to transforming the materials industry through collaboration, innovation and sharing of best practices within and across industries. The vision is simple: Can businesses get outside their competitive bubbles to work together to be a force for a good in the transition toward a Living Future? The world’s first living products
A select group of manufacturers drawn from the LP50 including Teknion, Owens Corning, Bureo Skateboard and One Earth Design are actively working to develop the world’s first Living Products. The Living Product Team recently conducted a charrette at the Owens Corning Science and Technology Facility in Granville, Ohio, to reimagine the company’s products and chart a path forward to Living Product Certification. Owens Corning fully has embraced the concept of Handprinting in its work, and it is not only reducing the negative impact of its operations, but also is measuring and expanding its positive impact.
Product leaders from each of its major insulation product lines, including XPS, Thermafiber and fiberglass, joined the workshop. Using the Living Product Challenge as a framework, each team brainstormed how it could move its product toward completely renewable, bio-based feedstocks, eliminate any chemicals of concern, and then reimagine the product, production facilities and corporate practices to create net positive impact.
The charrette was followed by a factory tour of Owens Corning’s "AttiCat" loose fill insulation facility — which produces zero waste, has dramatically lower water use, uses no chemical binders and engages each employee as a business partner to ensure safety, job satisfaction and efficiency of operation. After the workshop and tour it was easy for the Living Product and Owens Corning team to envision a future when the factory is powered completely by renewable energy, operating within the water balances of its site, while providing a home for biodiversity and ecosystem services.
The creativity and excitement brought by the Owens Corning team demonstrates the potential for the Living Product Challenge framework to inspire the out-of-the box thinking necessary to remaking our industrial system to work for the benefit of people and the planet.
Can manufacturing save the world? We have a long way to go, but through the Living Product Challenge, we are seeing signs pointing in the right direction.

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What Is It About Mercury? Thinking About Chemicals in the Public Discourse

Feb 9, 2016 | Southern Fried Science

By Amy Freitag

All of the revelations about the lead in the water system of Flint, Michigan have made residents and curious neighbors alike wonder ‘haven’t we solved the lead problem’? There are thousands of well-established scientific studies; the sources and even many of the solutions are well-understood and frequently implemented. Not to say the problem’s gone, but we’ve wrapped are heads around it. So how is it possible that a new lead problem has surprisingly reared its ugly head? And more importantly, what does that mean for exposure to chemicals for which we’ve barely scratched the scientific surface?
The world of fisheries has its analog – mercury. We’ve all heard the recommendations for pregnant women and small children to avoid tilefish, swordfish, mackerel, and shark. We understand that it bioaccumulates in the food chain – and that as humans not exactly at the bottom, we’re susceptible. The dynamics of methylmercury (the poison variety) and elemental mercury are fairly well mapped out and we can identify areas of potential hazard where more methylmercury is likely to be naturally created. We’ve also stopped doing things likespraying mercury-based pesticides and covering our landscape and foodscape with the toxin. Kids have even stopped playing with ‘quicksilver’, it’s been removed from dental fillings and vaccines, and you should get rid of that mercury-based thermometer. Yet, if you scanned most people’s hair (the way we measure these things), there would be mercury present. And there’s still a host of ways they might have been exposed. But the better question is – if there’s still mercury in your body, what else is floating around in your system? And why do we focus on only the best-understood pathway of chemical exposure?
Modern Mercury Exposures
If you ask people what water quality concerns we should pay attention to in coastal, small-scale fishing communities and they’ll say mercury first (such a question produced this research). These fishermen get questions from their consumers occasionally and health-conscious consumers becoming more prevalent. It’s the only public health concern that the big fish guides, like the Monterrey Bay Aquarium cards, test for. Ask those same people how they think the mercury got there and why they think it’s a concern, and they’ll list local or regional phenomena like historic land use (those pesky mercury pesticides again), presence of Superfund sites, and urban industrial discharges.
What they won’t say, but what the scientists will tell you, is that the majority of mercury these days comes from coal-fired power plants. They’re engineered these days in the US with “best available control technology” and many other nations share the same technology. However, that technology is often just a taller smokestack to deposit said mercury further up in the atmosphere. So instead of falling on the houses in the neighboring community like it used to, the mercury gets a jump start for global distribution in the high winds of the upper atmosphere. That means if you’re living on the east coast of the US, you’re mercury exposure is most likely coming from Chinese power plants. The mercury from turning your lights on is visiting your European friends.
Plus, mercury still has industrial applications. Do you have compact fluorescent lightbulbs in your house in order to cut down on carbon emissions? Those contain mercury. Waste management companies have special handling procedures to deal with old or broken CFLs, but it’s a fair guess to say that most end up in the regular trash along with 75% of other recyclables (in some areas). In a quest to help with one enormous environmental problem, we are contributing to another.
Have a gold wedding band? Yet again, the mercury villain rears its ugly head. Small-scale gold extraction across the developing worldstill depends on mercury to extract the gold from the surrounding rocks. This means that the workers frequently report mercury poisoning and the rivers from which this gold is mined flows downstream to communities, houses, and schools full of the mercury used to extract gold. Every once in awhile, a community particularly hard-hit will be profiled by international media, but otherwise the story is a fairly quiet one.
These points are all a way of saying that despite the fact that people care about mercury, think about it regularly, and place it at the top of a long list of environmental concerns, there are still aspects of the mercury problem that fly below their radar. So if we’ve got a public consciousness about mercury, how do we focus it to the most current concerns in a way people can take action? What is it about mercury that keeps it in people’s public consciousness and what can we learn to help both the mercury problem and other environmental concerns moving forward?
Why can’t we think about chemical exposure more broadly?
Despite lingering problems with mercury, it represents one of few chemical or water quality problems that we can, to a certain degree, place in the “success” box. There are laws in almost every country regulating its use (enforcement continues to be a problem, but that’s a story for another time) as well as broad public health campaigns about current exposures through thermometers, seafood, and industrial effluents. Parents and grandparents today tell stories of playing with quicksilver in school but how they’re glad that science has told their future generations that despite the fun of liquid metal, it’s not a safe activity. Yet, it’s still a public health concern via new pathways of exposure that get far less attention and that tend to be out of the public discourse.
Furthermore, the mercury story makes one wonder what else is out there that we as a scientific community have not yet had the time or funding to fully investigate. There are approximately 60,000 synthetic chemicals registered and used industrially that can be added to the list of naturally occurring compounds with public health implications (like mercury). In the US, these are not routinely tested before application in wide commercial use. Plasticizers like bisphenol-a are a good example – once widespread in almost every form of plastic object (which are fairly ubiquitous), we now understand they act like the body’s natural estrogen and cause developmental and hormonal problems. Plastic producers have responded by swapping it out for new plasticizers, none of which have gone through a thorough review to see if they have similar problems.
Take even one of mercury’s main routes of exposure – application to the land through pesticides – and while mercury’s now out of the pesticide arsenal, we spray plenty of very potent chemicals on our fields to this day. The route of exposure remains and concerns overfarmworker and farm community safety occasionally bubble to the surface. The rise of organic produce options show that some people care, but even organic farms are allowed to use some untested chemicals to keep the bugs away. Since the beginning of toxics regulation in the US, only 4 chemicals have been banned from use and the Toxic Substances Control Act (the main regulation on chemical use) only tests or monitors about 10,000 chemicals. It’s a long, steep road to controlling our exposure to unhealthy chemicals, let alone those with primarily environmental effects. How do we get people to talk about these types of chemicals in the same way that they talk about mercury? After all, it’s getting to them in the same sorts of ways.
Fundamentally, what can we learn from mercury’s story? What placed it high on the list of people’s concerns and what keeps it there? Why haven’t other chemicals joined mercury as literal poster children for environmental health? Let’s use mercury as a window into how the public interprets and reacts to scientific information and move our understanding of chemicals forward with broader support from the public.

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Chemical Security News

Watchdog Asks for More Funding for Investigations, Outreach

Feb 9, 2016 | E&E News PM

By Sam Pearson

The federal government's chemical watchdog would see a rare funding boost under President Obama's proposed spending plan, which was released today, as the agency aims to start new safety initiatives.
The U.S. Chemical Safety Board requested funding of $12.436 million for fiscal 2017, an increase of more than 13 percent from $11 million in current appropriations. The board said it wants to launch a new safety conference and complete more investigations into industrial accidents.
According to the budget request, CSB wants to complete a feasibility study to determine whether it should release incident screening data to the public and for investigative studies. The agency is also looking to conduct thematic studies, including one on the risk of so-called hot work incidents.
The request said CSB collects data on many industries that see chemical incidents but cannot launch full investigations of them all if the consequences are only minor.
If disclosed in some way, this data "may provide an opportunity for industry to learn valuable preventative safety lessons," the request said.
The board also wants to fund an annual symposium or forum on "innovations in chemical safety," the request said.
The purpose of the symposium is to promote "information sharing across government, industry, academia, and public interest groups and to encourage new safety technology and innovation for use in chemical and petrochemical facilities across the nation," the request said. "Such information is critical to the effective use of resources and effective furtherance of the CSB's mission, by sharing data and promoting best practices among stakeholders."
The board sent investigators to just two chemical incidents in 2015 -- a fatal chemical release at a DuPont facility in La Porte, Texas, that occurred in 2014 and an explosion at Exxon Mobil Corp.'s Torrance, Calif., refinery. Despite the lack of activity, the board gave itself credit for reducing an investigative backlog that reached a high of 22 open cases in 2010 and now stands at seven. Five investigations were wrapped up during fiscal 2015 and two more in fiscal 2016, the board said.
While members of Congress from both parties have taken CSB to task for its slow pace of work, appropriators have not been interested in rewarding CSB with new funding. Though CSB had to settle for flat funding in last year's omnibus spending bill, it staved off a plan approved by the Senate Appropriations Committee to cut agency funding by $300,000.

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Obama Request Boosts Funding for Safety Reviews

Feb 10, 2016 | E&E Daily

By Sam Pearson

Federal agencies would see funding increases for chemical safety evaluations and investigations into harmful exposures under President Obama's budget proposal for fiscal 2017.
The spending proposal also aims for faster U.S. EPA review of the safety of new and existing chemicals.
The request seeks a $56.8 million funding boost for EPA's Office of Chemical Safety and Pollution Prevention, hiking the amount to $679.6 million.
Of that amount, $67.2 million would be used for reviewing new and existing chemicals under the Toxic Substances Control Act, the agency said. EPA could complete 21 risk assessments from a "work plan chemicals" list the agency previously identified as being of the greatest health and safety concern if it receives the increased funding. It also would be able to move faster to propose risk management actions for chemicals with confirmed health risks, the agency said.
The agency faced criticism from public health scientists for failing to complete a single chemical assessment under its Integrated Risk Information System program in 2015. The program, which is run by the Office of Research and Development, has implemented procedural changes in response to industry criticism and a report from the National Academies nearly five years ago (Greenwire, May 6, 2014).
The Government Accountability Office warned nearly a year ago that its slow pace threatened EPA's "ability to effectively implement its mission of protecting public health and the environment" (Greenwire, Feb. 12, 2015).
The spending plan also calls on EPA to spread out TSCA-related oversight to its regional offices, where only three full-time-equivalent employees currently work on such issues. The agency said this change would close a "critical gap" to help regulators engage more closely with the public.
With a $5.6 million boost to the Chemical Safety for Sustainability Research Program, the agency said it could adopt new technologies in computational chemistry to more easily extract data from known chemicals to fill in unknown information on new chemicals, helping regulators better understand substances of concern.
EPA also would expand the use of non-animal testing methods in the Endocrine Disruptor Screening Program and promote its Safer Choice product-labeling initiative, the budget request said.Requests to hike security programs
The Department of Labor and EPA both cited Obama's 2013 executive order on chemical security as the impetus for requesting more funds for certain safety programs.
DOL's Occupational Safety and Health Administration would receive $595 million under the proposed budget, including a $4 million increase to funding for enforcing 20 laws to protect workers from retaliation when they report unsafe workplace conditions.
OSHA requested $5.1 million and 23 full-time employees to implement the executive order and boost safety at chemical plants. The agency said it would use $2.45 million to update its process safety management standards, while an additional $2.7 million would cover new compliance officers to inspect chemical facilities.
EPA said it needs $23.8 million, or an increase of $8.4 million from current appropriations, for its State and Local Prevention and Preparedness program, which works to ensure safety in areas near chemical facilities. EPA said it had done its best with existing resources but could not implement the executive order without additional funding. The boost would also help EPA engage with Local Emergency Planning Committees, share data and inspect chemical plants, the agency said.
The Department of Homeland Security also requested $79.9 million to secure high-risk chemical facilities under the Chemical Facility Anti-Terrorism Standards program, which approved 1,017 site security plans and alternative security programs in fiscal 2015.
OSHA also called on Congress to remove appropriations language preventing it from targeting harvesting or processing operations on farms if the operations have fewer than 10 employees. Citing the 2013 West Fertilizer Co. explosion, OSHA warned these factors are not "predictive of the potential for high-consequence catastrophic incidents."
Another agency, the U.S. Chemical Safety Board, proposed increasing its funding to $12.4 million from $11 million, according to its budget request (E&ENews PM, Feb. 9).

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Transportation News

Obama's Clean Transportation Plan Likely to Sink: Sources

Feb 10, 2016 | BNA Daily Environment Report

By Stephanie Beasley

The White House would like to double the nation's investments in low-carbon, “clean transportation” and proposes spending $900 billion in surface transportation upgrades over the next 10 years, according to its fiscal year 2017 budget proposal.
President Barack Obama proposes to pay for a “21st Century Clean Transportation Plan” with a $10.25 per barrel oil tax that would be phased in over five years. Additionally, the plan aims to generate one-time revenue through a business tax overhaul.
Revenue from the new taxes would help provide long-term financial stability for the Highway Trust Fund (HTF) that supports federal highway and transit programs, according to the administration.
A portion of the Federal Transit Administration's budget would be moved from discretionary to mandatory funding with the agency projected to receive a total of $19.9 billion, including revenue from the clean transportation plan, a senior Transportation Department official said.
Additionally, the Transportation Investment Generating Economic Recovery (TIGER) program, a popular discretionary grant program, would receive $1.25 billion in mandatory contract authority under the president's clean transportation plan.
Road to Nowhere?
The idea of levying an oil barrel tax was floated in Congress last year, but gained no traction before lawmakers cleared a $305 billion, five-year highway and transit law known as the FAST Act. Talks about using one-time tax-overhaul revenue to fund long-term infrastructure investments have similarly stalled.
The president's budget would put HTF spending at $17.9 billion above FAST Act levels, according to the Eno Center for Transportation. But at least one stakeholder group is saying the president's proposal is too little, too late.
“The president's proposal to levy a $10 fee on a barrel of oil to stabilize and grow Highway Trust Fund investments through user funding is exactly the type of solution that is necessary going forward,” said Pete Ruane, president and chief executive officer of the American Road & Transportation Builders Association (ARTBA). “Unfortunately, the game was played last year and the president was AWOL.”
ARTBA has long urged lawmakers to raise the 18.4 cents per gallon gas tax, an idea that has received a muted response from the Obama administration. Ruane said House Speaker Paul Ryan's (R-Wis.) assertion that an oil tax would hurt the economy was “a knee-jerk and dismissive reaction” that was unhelpful to efforts to identify a long-term surface transportation funding solution.
Nevertheless, Ryan's response signals the clean transportation plan doesn't have a bright future in Congress.
“Even members supportive of the spending have neither the desire nor the ability to re-open the FAST Act while the ink is still wet,” said Jeff Davis, a senior fellow at the Eno Center.
Driverless Cars, PTC Get Funding Boost
Overall, Obama is seeking $98.1 billion in budget authority for the Department of Transportation next fiscal year in a budget request that is heavy on new transportation technology rollouts.
The White House proposes an investment of $4 billion to test automated vehicle technology over the next 10 years.
Rail safety and development programs at the Federal Railroad Administration would get a $14 million boost over this year's funding levels with a focus on allocating a portion to help railroads install anti-collision technology known as positive train control . Rail service providers have a Dec. 31, 2018, deadline to fully install PTC technology.
An additional $1.3 billion would be available for PTC implementation grants.
The White House also is seeking $53 million specifically for rail safety and research development that would include testing the safety and environmental benefits of electronically controlled pneumatic brakes.
Overall, the FRA would receive a total of $6.2 billion next year, a big leap above the $1.7 billion enacted for the agency in FY 2016.

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Obama Aims to Overhaul Sector Through $98B Request

Feb 9, 2016 | E&E News PM

By Ariel Wittenberg

The Obama administration is asking Congress to fund a transportation sector transformation in fiscal 2017 with a $98.1 billion budget request for the Department of Transportation.
The proposal released today would be a major boost from the approximately $76 billion enacted for fiscal 2016, with a large portion of additional funding coming from the proposed 21st Century Clean Transportation Plan that President Obama announced last week (E&ENews PM, Feb. 4).
The budget proposal released today contains more details about that plan, which would be funded with a controversial per-barrel oil fee paid for by the industry.
Though Obama administration officials initially said the fee would be $10 per barrel, the Treasury Department's explanation of revenue proposals for fiscal 2017 released today puts that price at $10.25 per barrel.
DOT officials declined to comment on the increase.
The Clean Transportation Plan calls for spending $320 billion over the next 10 years -- $32 billion per year -- on programs to reduce traffic and pollution from transportation.
Those initiatives would include $10 billion annually for new multimodal transportation programs; $10.5 billion annually to improve transit systems and expand the development of public transit; and almost $7 billion annually to reaffirm "the Administration's commitment to high-speed rail."
In addition, the Clean Transportation Plan would more than double current funding levels for the popular Transportation Investment Generating Economic Recovery (TIGER) program. As it did for fiscal 2016, the administration is requesting $1.25 billion for the multimodal grant program. The recent fiscal 2016 omnibus bill enacted in December 2015 funded the TIGER program at just $500 million (Greenwire, Dec. 16, 2015).
The "ambitious" proposal was written to meet the challenges of accommodating a population expected to grow by 70 million over the next 30 years, which could lead to more congestion in urban areas, according to a DOT fact sheet.
"Meeting these challenges will require a long-term transformation of the transportation sector to provide the public and the economy with transportation services decoupled from fossil fuel consumption and carbon dioxide emissions," the fact sheet says.
If funding requested in the Clean Transportation Plan were combined with resource levels required under current law, the president's budget proposes investing nearly $900 billion in the nation's surface transportation system over the next decade.
The fiscal 2017 blueprint is more of a presidential wish list, as Republicans in Congress have vowed that the transportation request will be "dead on arrival" largely due to the oil fee (E&ENews PM, Feb. 8).
Congress recently came to a deal on authorizing surface transportation and transit programs in the form of the $305 billion Fixing America's Surface Transportation (FAST) Act. While the Obama administration has called that legislation the first step toward a more robust spending plan, Congress is unlikely to reopen agreements struck in the five-year bill (E&E Daily, Dec. 4, 2015). Congress also rejected funding for high-speed rail projects in the December omnibus package.Other proposals
Aside from the Clean Transportation Plan, the president's fiscal 2017 transportation proposal includes more than $60 million for the National Highway Traffic Safety Administration to conduct research on advanced technologies and alternative fuels, as well as emerging technologies and alternative fuel vehicles, and to support future rulemaking under the corporate average fuel economy (CAFE) program.
In addition to promoting clean transportation technologies, the budget request emphasizes safety. The request would bump up spending for the Pipeline and Hazardous Materials Safety Administration to $295 million from the $252 million enacted in the omnibus bill.
The budget also proposes "modernizing the organizational structure" of PHMSA "to ensure that regulation and enforcement keeps pace with changing technology."
The administration also is proposing $213 million in spending to develop rail safety programs like positive train control through the Federal Railroad Administration.
The budget request also includes $3.9 billion in spending to accelerate the development and adoption of automated vehicles. That proposal is one Transportation Secretary Anthony Foxx (D) previewed at the North American International Auto Show in Detroit last month (E&ENews PM, Jan. 14).
Additionally, the administration is proposing changing the name of the Highway Trust Fund to the Transportation Trust Fund in order to emphasize the importance of multimodal programs.

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Energy and Environment News

Supreme Court Freezes Obama Plan to Limit Carbon Emissions

Feb 9, 2016 | The Washington Post

By Robert Barnes and Steven Mufson

The Supreme Court on Tuesday blocked a key part of President Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged.
The court granted a stay request from more than two dozen states, plus utilities and coal companies, that said the Environmental Protection Agency was overstepping its powers. The court’s decision does not address the merits of the challenge but indicates justices think the states have raised serious questions.
The administration’s initiative, which is still in the planning stages, required states to submit plans for shifting away from fossil-fuel power plants in favor of alternative forms of energy. It is aimed at reducing emissions of carbon dioxide at existing plants by about a third by 2030.
The stay means that questions about the legality of the program will remain after Obama leaves office. An appeals court is not scheduled to hear the case until June, and the Supreme Court’s order said the stay would remain in effect while the losing side petitions the Supreme Court. If the court were to accept the case, that would mean an ultimate decision in 2017.
The timing imperils the Clean Power Plan, because a new president could make significant changes.
White House press secretary Josh Earnest said the administration disagrees with the court’s decision. “We remain confident that we will prevail on the merits,” he said in a statement. “Even while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need. At the same time, the Administration will continue to take aggressive steps to make forward progress to reduce carbon emissions.”
As is its custom in stay requests, the court did not give a reason for its action. The court’s four liberal justices — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — objected to the decision, but they did not give an explanation.
The Obama administration had told the court that the stay request was unprecedented and that it was routine for federal programs to proceed while courts considered challenges.
West Virginia Attorney General Patrick Morrisey, who spearheaded the states’ stay request, said the decision showed the court was leery of the plan.
“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” Morrisey said in a statement.
Environmentalists said they hoped the setback was only temporary.
“Today’s court decision is unfortunate but does not reflect a decision on the merits,” said Vickie Patton, general counsel for the Environmental Defense Fund. “The D.C. Circuit Court will carry out a careful and expeditious review of the merits over the next few months. The Clean Power Plan has a firm anchor in our nation’s clean-air laws and a strong scientific record.” Jeffrey Connor, chief executive of the National Rural Electric Cooperative Association, said the existing plan would have caused “immediate and irreparable harm” to small electricity providers who rely on coal.
“Had the stay not been granted, co-ops would have been forced to take costly and irreversible steps to comply with the rule, which is a huge overreach of EPA’s legal authority,” Connor said.
The Clean Power Plan is an essential part of Obama’s pledge to reduce the country’s contribution to global warming, because the electric-power sector of the economy emits 30 to 40 percent of all U.S. greenhouse gases.
Under the plan, states can draw up their own plans or choose the EPA’s plan. The EPA recently published its proposals and is finalizing that rule now. States were supposed to submit their plans by September but were allowed to ask for a two-year extension.
“It won’t prevent the EPA from doing the kind of planning they want to do, but most of the states are putting their pencils down,” said Jeffrey R. Holmstead, a senior EPA official under President George W. Bush and a critic of the Clean Power Plan. Some experts were surprised at the court’s action. It rarely intervenes to halt a regulation that had not already been reviewed by a lower court, said Nathan Richardson, a University of South Carolina law professor.
“The bigger signal here is that there’s a lot of skepticism from the Supreme Court,” said Richardson, a visiting fellow at Resources for the Future, a nonpartisan think-tank. “You’re getting an earlier view of how the justices feel.”
“We’re obviously very disappointed,” said Bruce Nilles, a Sierra Club lawyer who has been campaigning to close down coal plants for years. “Almost every state has been in the process of planning for an orderly transition of cutting carbon and replacing coal plants with clean energy.”Nilles, a former Justice Department lawyer, said: “It is unprecedented for the Supreme Court to stay a rule at this point in litigation. They do this in death-penalty cases.”But the states had argued that the court needed to act now. Without a stay, they told the court, the plan would “force massive, irreversible changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power” all in the name of a program that might ultimately be found unconstitutional. Other experts said that many states would likely continue steps to cut greenhouse gas emissions without waiting for the legal fight to shake out. A number of states were already on track to meet the EPA standards because of commitments to phase out older coal-burning power plants and develop clean-energy projects.
But Nilles said that coal plants would still continue to close down because of low natural gas costs and declining costs of wind and solar power.
“Whether or not the court ultimately upholds this particular rule, the need to cut carbon emissions will remain, and states need to figure out the most cost-effective ways to do that,” said Bob Perciasepe, a former acting administrator for the EPA. “It’s in everyone’s interest that states keep at it, because whether it’s the Clean Power Plan or some other policy, they’ll need smart strategies to get the job done.”

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Supreme Court Deals Blow to Obama’s Efforts to Regulate Coal Emissions

Feb 9, 2016 | The New York Times

By Adam Liptak and Coral Davenport

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.
The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups.
But the Supreme Court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices.
The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court.
“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.
In negotiating that deal, which requires every country to enact policies to lower emissions, Mr. Obama pointed to the power plant rule as evidence that the United States would take ambitious action, and that other countries should follow.
The White House said in a statement that it disagreed with the court’s decision and remained confident that it would ultimately prevail. “The administration will continue to take aggressive steps to make forward progress to reduce carbon emissions,” it said.
Opponents of Mr. Obama’s climate policy called the court’s action historic.
“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” said Patrick Morrisey, the attorney general of West Virginia, which has led the 29-state legal challenge.
“There’s a lot of people who are celebrating,” said Jeff Holmstead, a lawyer with Bracewell & Giuliani, a firm representing energy companies, which are party to the lawsuit. “It sends a pretty strong signal that ultimately it’s pretty likely to be invalidated.”
The challenged regulation, which was issued last summer by the Environmental Protection Agency, requires states to make major cuts to greenhouse gas pollution created by electric power plants, the nation’s largest source of such emissions. The plan could transform the nation’s electricity system, cutting emissions from existing power plants by a third by 2030, from a 2005 baseline, by closing hundreds of heavily polluting coal-fired plants and increasing production of wind and solar power.
“Climate change is the most significant environmental challenge of our day, and it is already affecting national public health, welfare and the environment,” Solicitor General Donald B. Verrilli Jr. wrote in a brief urging the Supreme Court to reject a request for a stay while the case moves forward.
The regulation calls for states to submit compliance plans by September, though they may seek a two-year extension. The first deadline for power plants to reduce their emissions is in 2022, with full compliance not required until 2030.
The states challenging the regulation, led mostly by Republicans and many with economies that rely on coal mining or coal-fired power, sued to stop what they called “the most far-reaching and burdensome rule the E.P.A. has ever forced onto the states.”
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit in January unanimously refused to grant a stay.
The court did expedite the case and will hear arguments on June 2, which is fast by the standards of complex litigation.
The states urged the Supreme Court to take immediate action to block what they called a “power grab” under which “the federal environmental regulator seeks to reorganize the energy grids in nearly every state in the nation.” Though the first emission reduction obligations do not take effect until 2022, the states said they had already started to spend money and shift resources.
Eighteen states, mostly led by Democrats, opposed the request for a stay, saying they were “continuing to experience climate-change harms firsthand — including increased flooding, more severe storms, wildfires and droughts.” Those harms are “lasting and irreversible,” they said, and “any stay that results in further delay in emissions reductions would compound the harms.”
In a second filing seeking a stay, coal companies and trade associations represented by Laurence H. Tribe, a law professor at Harvard, said the court should act to stop a “targeted attack on the coal industry” that will “artificially eliminate buyers of coal, forcing the coal industry to curtail production, idle operations, lay off workers and close mines.”
The E.P.A., represented by Mr. Verrilli, called the requests for a stay “extraordinary and unprecedented.” The states challenging the administration’s plan, he said, could point to no case in which the Supreme Court had “granted a stay of a generally applicable regulation pending initial judicial review in the court of appeals.” In a later brief, the states conceded that point.
Mr. Verrilli said judicial review of the plan, including by the Supreme Court, will be complete before the first deadline for emissions reductions in 2022.
“There is no reason to suppose that states’ duties under the rule will be especially onerous,” Mr. Verrilli wrote. “A state can elect not to prepare a plan at all, but instead may allow E.P.A. to develop and implement a federal plan for sources in that state.”
The two sides differed about whether current declines in coal mining and coal-fired power generation are attributable to the administration’s plan. “Some of the nation’s largest coal companies have declared bankruptcy, due in no small part to the rule,” a group of utilities told the justices.
A coalition of environmental groups and companies that produce and rely on wind and solar power said other factors were to blame for coal’s decline.
“These changes include the abundant supply of relatively inexpensive natural gas, the increasing cost-competitiveness of electricity from renewable generation sources such as solar and wind power, the deployment of low-cost energy efficiency and other demand-side measures, and increasing consumer demand for advanced energy,” they wrote.

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Supreme Court Halts Clean Power Plan in Blow to Obama

Feb 10, 2016 | BNA Daily Environment Report

By Andrew Childers and Anthony Adragna

The U.S. Supreme Court Feb. 9 took the unusual step of blocking the Environmental Protection Agency's Clean Power Plan even before the rule has been argued before an appellate court, casting doubt on the viability of the carbon dioxide standards for power plants (West Virginia v. EPA, U.S., No. 15A773, order issued 2/9/16).
The court ordered that the Clean Power Plan, President Barack Obama's signature domestic action on climate change, be halted until the case can be heard by the U.S. Court of Appeals for the District of Columbia Circuit and through any subsequent Supreme Court consideration.
The D.C. Circuit has scheduled argument in lawsuits brought by 27 states and several utility industry groups opposed to the rule for June 2, with the possibility for additional argument June 3 (West Virginia v. EPA, D.C., No. 15-1363, order issued 1/21/16).
The Supreme Court's five Republican appointees all voted in favor of the stay, while the justices appointed by Democratic presidents opposed the petitions.
“We are thrilled that the Supreme Court realized the rule's immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” West Virginia Attorney General Patrick Morrisey, who has led the states fighting the rule, said in a Feb. 9 statement.
EPA officials could not be reached for comment.
Rule at Risk, Observers Say
Attorneys said the Supreme Court's unusual decision indicates the EPA's rule could be in jeopardy as it heads to the courts.
Brain Potts, a partner at Foley & Lardner LLP, who is not involved in the litigation, said he was “shocked” that the court granted the stay.
“The fact that [Justice Anthony] Kennedy and [Chief Justice John] Roberts agreed to stay the rule is a huge signal that the court might ultimately overturn it,” he told Bloomberg BNA in an e-mail.
Scott Segal, a partner in Bracewell LLP's Policy Resolution Group, also said the court's decision indicates the rule may not survive judicial scrutiny.
“Should the D.C. Circuit uphold the rule, I think the stay is indicative that the court is likely to want to hear this case,” he told Bloomberg BNA. “Even the most ardent supporters would have to concede that this does not bode well for the current rule.”
Among the court's criteria for granting the stay are demonstrating that allowing the rule to go into effect during litigation would impose immediate and irreparable harms and that petitioners are likely to prevail on the merits of their arguments. States and utilities had argued that even though the carbon dioxide reductions do not take effect until 2022, they must begin expending resources and begin making business decisions now in order for states to submit their initial compliance plans to the EPA by Sept. 6.
Supreme Court Briefs
In briefs to the Supreme Court last week, states had argued that the EPA's rule flew in the face of recent decisions by the high court on the limits of its Clean Air Act authority.
They had argued that the Clean Power Plan litigation could mirror legal battles over the EPA's Mercury and Air Toxics Standards for power plants where the Supreme Court found the agency had erred when it failed to consider compliance costs for utilities when determining whether it was appropriate and necessary to regulate toxic pollutants from power plants.
Though the rule was ultimately remanded to the EPA for an updated cost and benefit analysis, utilities had already made the investments necessary to either install new pollution controls or close aging coal-fired power plants
Richard Revesz, director of the Institute of Policy Integrity at New York University School of Law, which had supported the EPA's efforts, told Bloomberg BNA Feb. 9 the court's decision should not be read as an indication of how it might decide the case on the merits later on.
“They [the justices] think that this is a serious case and there is a sufficient probability of harm for the parties seeking the stay to merit doing this,” Revesz said. “But it doesn't mean the five justices have decided to strike down the rule—it doesn't mean that at all.”
“This was always going to be a difficult case—that's why it's being litigated vigorously,” he said.
Environmental Groups Argue Rule Still Viable
Despite the Supreme Court's highly unusual intervention in the litigation, environmental advocates continued to argue that the Clean Power Plan is firmly grounded in the EPA's existing Clean Air Act authority and would ultimately be upheld.
“The Clean Power Plan has a firm anchor in our nation's clean air laws and a strong scientific record, and we look forward to presenting our case on the merits in the courts,” Vickie Patton, general counsel for the Environmental Defense Fund, which has joined the EPA in defense of the rule, said in a Feb. 9 statement.
David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, said the court's stay should not stop states from working toward compliance with the rule.
“Smart industry, financial and governmental leaders will not count the Clean Power Plan out and will keep moving to incorporate strategies and public policies leading toward a clean energy economy,” he said in a Feb. 9 statement.
Opponents of the Clean Power Plan had sought a stay from the Supreme Court after the D.C. Circuit rejected a similar request. Rather than halt the rule, the appellate court had agreed to expedited briefing format that would see the case argued by this summer with a decision possible before the Sept. 6 deadline for states to submit their initial compliance plans.
That deadline is now effectively moot with the Supreme Court halting the Clean Power Plan until all litigation can be resolved.

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Supreme Court Puts the Brakes on the EPA’s Clean Power Plan

Mar 9, 2016 | The Washington Post

By Jonathan H. Adler

Tuesday evening, the U.S. Supreme Court granted a stay, halting implementation of the Environmental Protection Agency’s Clean Power Plan pending the resolution of legal challenges to the program in court. The CPP is arguably the Obama administration’s signature environmental initiative, representing the EPA’s most ambitious effort to control greenhouse gas emissions under the Clean Air Act. Five separate stay applications were filed by more than two dozen states and numerous industry groups. Other states, environmental groups and some energy companies opposed the stay.
The order reads as follows:
The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
The Supreme Court’s decision comes as a surprise, as it is unusual for the high court to block federal regulations, particularly where (as here) the D.C. Circuit had denied a similar request. What could explain the move? One possibility, suggested by Michael Greve, is that the court was concerned about a replay of Michigan v. EPA, in which the court invalidated another EPA rule to little practical effect. As Greve noted, this point was stressed in the opening of the stay application submitted by 29 states and state agencies seeking a stay:
This Court’s decision last Term in Michigan v. EPA, 135 S. Ct. 2699 (2015), starkly illustrates the need for a stay in this case. The day after this Court ruled in Michigan that EPA had violated the Clean Air Act (“CAA”) in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, 42 U.S.C. § 7412, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance.” Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. […] In short, EPA extracted “nearly $10 billion a year” in compliance from power plants before this Court could even review the rule […] and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.
The decision also suggests that a majority of the court has concerns about the EPA’s authority to impose the CPP under the Clean Air Act. The CPP,whatever its policy merits, is based on a fairly aggressive reading of the relevant provisions of the Clean Air Act, most notably Section 111. Even some liberal scholars, such as Harvard’s Laurence Tribe, have raised questions about the EPA’s authority here. (Tribe is also an attorney on one of the stay applications filed with the court.)
There are serious legal arguments against specific elements of the CPP (such as the consideration of potential emission reductions to be achieved “outside the fence” of regulated facilities) as well as the position that Section 111 of the CAA allows the EPA to regulate greenhouse gases from power plants in the first place. The latter concerns raise the stakes of the case and strengthen the argument for a stay. This is because the question at issue is not merely whether the EPA observed the relevant procedural niceties or properly exercised its authority on the margin. Rather, the question is whether the EPA has the authority to do this at all.
As a practical matter, this stay means that the EPA may not continue to take any actions to implement or enforce the CPP pending the resolution of the state and industry challenge to the rule. That challenge is currently before the U.S. Court of Appeals for the D.C. Circuit, which will hear oral arguments on June 2. In all likelihood, this means a D.C. Circuit decision will not be issued until early fall, at the earliest. Given all that’s at stake, either en banc review on the D.C. Circuit or a petition for certiorari will follow.
For those interested, the Environmental Defense Fund has posted copies of the relevant case documents here.
UPDATE: Some additional thoughts. Looking back over the various stay applications (linked above), I suspect that the EPA’s arguments against the stay were undermined by the Agency’s own statements about the potentially revolutionary nature of the CPP. In promoting the plan, the EPA repeatedly emphasized that the CPP represented the most ambitious climate-related undertaking in the agency’s history and crowed that the plan would lead to the complete restructuring of the energy sector. Making these claims may have undermined the EPA’s position, because it made it easier for the stay applicants to argue that a stay was justified. Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.

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White House Surprised by Supreme Court Stay of Carbon Rule

Feb 10, 2016 | BNA Daily Environment Report

By Anthony Adragna

Senior Obama administration officials said late Feb. 9 they strongly disagree with the Supreme Court's decision to stay the Environmental Protection Agency's greenhouse gas emissions standards for power plants while litigation continues, but they expressed confidence the Clean Power Plan's legality ultimately would be upheld.
“This is a temporary, procedural determination that does nothing to affect, first, our confidence in the legal soundness of the rule,” a senior administration official told reporters on a telephone news conference. “We also remain confident and committed to the climate targets we put forward in the international space.”
The Supreme Court's decision Feb. 9 to stay the regulation was surprising, extraordinary and unprecedented under the Clean Air Act, a different administration official said. Despite the setback, there are multiple examples historically of environmental regulations being stayed and courts ultimately upholding them, the official said.
As litigation proceeds through the U.S. Court of Appeals for the District of Columbia Circuit, the EPA has indicated it will continue to work with states. The court's decision also does nothing to change President Barack Obama's commitment to aggressive action to tackle climate change for the rest of his presidency, an official said.
The EPA released its own statement Feb. 9 vowing to continue its efforts to combat climate change despite the Supreme Court's stay of Obama's signature domestic effort to combat the problem.
“We're disappointed the rule has been stayed, but you can't stay climate change, and you can't stay climate action,” the agency said in a statement. “We believe strongly in this rule and we will continue working with our partners to address carbon pollution.”
The administration officials said they expect Supreme Court review on the merits of the Clean Power Plan is inevitable.
International Impacts.
The senior administration officials downplayed the impact the court's decision might have internationally, pointing to Obama's broader Climate Action Plan and other EPA regulatory efforts on methane, vehicle fuel efficiency and hydrofluorocabons, among others. International climate negotiators struck a global climate change accord in Paris in December, and the Clean Power Plan was central to the U.S.'s commitment.
“We'll continue to look for additional steps to reinforce the U.S. stands behind those [international] commitments completely,” an official said, adding other countries understand it is typical for major domestic regulations to undergo significant judicial scrutiny.

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In Unexpected Move, Divided High Court Halts ESPS Pending Judicial Review

Feb 9, 2016 | InsideEPA

By Abby Smith

In an unexpected blow to the Obama administration's climate agenda, a divided Supreme Court late Feb. 9 halted implementation of EPA's existing power plant greenhouse gas rule until court challenges are resolved, a significant victory for the rule's opponents, who charge that the move signals that the high court will ultimately overturn the rule.
But EPA and its supporters, while acknowledging the setback and promising a vigorous defense, argue that the order does not reveal how the court would rule on the merits of state and industry challenges to the landmark power sector rule that forms the basis of the administration's domestic and international pledge to reduce GHG emissions.
The high court's 5-4 decision, announced in an order released late Feb. 9, freezes the existing source performance standards (ESPS) just two weeks after a lower court rejected similar requests from opponents.
The order will remain in effect pending a ruling by the U.S. Court of Appeals for the District of Columbia Circuit, as well as the disposition of any petitions for the high court to review that ruling. The order says if such petitions are denied -- a step seen as extremely unlikely given the stay -- the order will lose effect.
However, when the court does review the D.C. Circuit's ruling, the recent order staying the stay will remain in effect until the high court rules on the merits of the challenges.
According to the order, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayer and Elena Kagan opposed granting the stay, meaning that the court's traditional swing vote, Justice Anthony Kennedy, sides with ESPS opponents at this stage of the litigation.
While the high court has been known to uphold EPA regulations that have been stayed by the D.C. Circuit, such as EPA's cross-state air pollution rule, the high court has never stayed an EPA rule pending judicial review.
But that review is on a fast track. Following briefing in litigation over the rule that will conclude in April, the D.C. Circuit will hear oral argument in consolidated litigation challenging the ESPS on June 2.
The impacts of the high court decision could be significant, regardless of the rule's ultimate fate. For one, it will likely stop compliance activities in many states that oppose the rule, with officials hoping for an eventual court victory or a Republican president in 2017 who scraps the policy.
Additionally, the move could undercut President Obama's pledge under the landmark United Nations climate agreement reached in Paris, given that the ESPS was a cornerstone policy underpinning that pledge.
In a Feb. 9 statement, the White House says administration officials “disagree” with the Supreme Court's order to stay the ESPS, but that “[w]e remain confident that we will prevail on the merits. Even while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need.”
James Rubin, a former government lawyer now an attorney with Dorsey and Whitney, says the ruling is “extraordinary and fairly surprising.” He notes that “with the rule stayed at least until the D.C. Circuit rules on the merits, which could be in late 2016 or early 2017, the timelines in the rule will likely be impacted and states will be considering whether and how to continue in their planning. It’s a significant blow to the EPA and the Administration's climate program.”
Opponents were buoyed, arguing the decision is an indication that the high court will ultimately overturn the ESPS, also known as the Clean Power Plan, which legal observers say is likely to reach the high court sometime in 2017 or later.
“Make no mistake -- this is a great victory for West Virginia,” said West Virginia Attorney General Patrick Morrisey (R), who is leading the coalition of states opposing the rule, in a statement. “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”
“We are pleased the Supreme Court took this unprecedented step to protect the states from further economic harm while the courts are deciding whether the administration’s Power Plan is unlawful and unconstitutional,” said Mike Duncan, president and CEO of the American Coalition for Clean Coal Electricity, in a statement. “The stay is a signal the Supreme Court has serious concerns with the Power Plan. We’re optimistic the Power Plan will ultimately be rejected.”
'Careful' Review
Environmentalists, however, are dismissing notions that the high court stay is indicative of the eventual outcome of litigation over the ESPS' merits.
“The D.C. Circuit court will carry out a careful and expeditious review of the merits over the next few months. The Clean Power Plan has a firm anchor in our nation’s clean air laws and a strong scientific record, and we look forward to presenting our case on the merits in the courts,” Vickie Patton of the Environmental Defense Fund says in a statement.
And David Doniger of the Natural Resources Defense Council argued in a statement that the “electricity sector has embarked on an unstoppable shift from its high-pollution, dirty-fueled past to a safer, cleaner-powered future, and the stay cannot reverse that trend. Nor can it dampen the overwhelming public support for action on climate change and clean energy.”
Doniger added that “smart industry, financial, and governmental leaders . . . will keep moving to incorporate” clean energy strategies.
Clean Air Watch's Frank O' Donnell in response to the stay said the high court hold in the rule is “bad news . . . but the battle is far from over.”
EPA supporters are also stressing the move underscores the stakes in November's presidential election, given that the next president would have the ability to nominate Supreme Court justices. “Our next president will have the responsibility to select Supreme Court justices, and today’s decision reminds us how critical these selections will be to keeping our families healthy, safe, and economically secure,” billionaire environmentalist Tom Steyer said in a statement.
'Long Shot'
Morrisey led a coalition of 26 states to ask the Supreme Court to stay the ESPS after the D.C. Circuit on Jan. 21 denied opponents' petitions for a stay.
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.”
Industry groups joined the fight a day later, filing separate applications from utilities, coal interests and business trade association, though even some industry attorneys, like former EPA air chief Jeff Holmstead, doubted the high court would grant the stay, calling the application a “long shot.”
Nevertheless, opponents of the rule welcomed the high court's decision, with Sen. James Inhofe (R-OK), highlighting the potential international impacts of the high court's order.
“These regulations were the foundation of the president's commitment to the Paris Climate Agreement. The Court’s action should demonstrate once again to the world that this president has committed the U.S. to actions that are unenforceable and legally questionable,” Inhofe said in a statement.

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Supreme Court Threatens Obama's Climate Agenda

Feb 9, 2016 | Politico

By Alex Guillen

President Barack Obama will leave office next January with the fate of one of his biggest environmental achievements hanging in the balance.
The Supreme Court on Tuesday took the unusual step of blocking the Environmental Protection Agency’s landmark carbon rule for power plants, throwing into doubt whether Obama's signature climate change initiative will survive a legal battle before the high court.
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The decision to grant the stay is no guarantee the justices ultimately will strike down the rule, but the development is a bad sign for EPA’s chances, and the agency's foes quickly cheered the news, with West Virginia Attorney General Patrick Morrisey calling it a “great victory.”
“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” he said in a statement.
The White House vowed that the rule, known as the Clean Power Plan, will survive, saying it “is based on a strong legal and technical foundation."
“We remain confident that we will prevail on the merits,” press secretary Josh Earnest said in a statement late Tuesday night, adding that "the administration will continue to take aggressive steps to make forward progress to reduce carbon emissions.”
"We're disappointed the rule has been stayed, but you can't stay climate change and you can't stay climate action," EPA spokeswoman Melissa Harrison said in a separate statement. "Millions of people are demanding we confront the risks posed by climate change. And we will do just that."
The Supreme Court issued its short order putting the rule on hold at the request of states and companies that had asked the high court to intercede early — even though a lower court had already declined to do so.
The ruling was on a 5-4 vote, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — the court's liberal wing — lining up against staying the rule.
Environmentalists quickly downplayed the stay, noting that it did not come to any conclusions about the legality of the rule itself.
"The Clean Power Plan has a firm anchor in our nation’s clean air laws and a strong scientific record, and we look forward to presenting our case on the merits in the courts," said Vickie Patton, the Environmental Defense Fund's general counsel.
The justices did not explain their decision, but the order indicates they believe the rule threatens imminent and irreparable harm. The states and groups challenging the rule noted that the Supreme Court last year identified a major flaw with an EPA regulation limiting mercury emissions from power plants only after that rule had started to take effect, and they urged the justices not to allow something similar to happen with the carbon rule.
The D.C. Circuit Court of Appeals has put the case on a fast track, with oral arguments scheduled for June 2. That indicates a ruling from that court in late summer or fall, and tees up a Supreme Court appeal for as early as 2017.
"The stay is a signal the Supreme Court has serious concerns with the Power Plan," said Mike Duncan, head of the coal-supported advocacy group American Coalition for Clean Coal Electricity.
Coal-heavy utilities, mining companies and 27 states are among those suing to reverse the rule, which opponents say exceeds EPA’s authority under the Clean Air Act.
The stay may only delay implementation of the rule by two or three years if EPA eventually triumphs at the Supreme Court. But it will keep the rule on hold into the next administration, increasing the chances that it could be undone if a Republican is elected to the White House this year.
At the very least, some efforts to replace power plants’ coal with cleaner-burning natural gas and carbon-free wind and solar power are likely to be delayed. And the stay could foreshadow an eventual court decision tossing out the rule altogether, which may severely limit how far the government can go in curbing greenhouse gas emissions.
This is not the first big Obama environmental rule to be stayed during litigation. In late 2011, just two days before it was to take effect, the D.C. Circuit put a stay on EPA’s Cross-State Air Pollution Rule, which targets pollutants like nitrogen oxide and sulfur dioxide that float downwind across state lines.
The circuit later struck down the rule — but the Obama administration appealed to the Supreme Court and ultimately won the case 6-2, and the rule took effect three years after its original start date.
With the rule’s legal defense stretching into the next administration, the possibility of a Republican president casts a thick fog over the regulation’s future. All of the GOP candidates have repudiated the rule as a threat to the economy and vowed to overturn it, and a Republican president would have several avenues for kneecapping the Clean Power Plan, including simply accepting a possible circuit decision to strike down the rule without filing an appeal — a more likely outcome after Tuesday’s stay.
Environmental groups have quietly prepared for that possibility by preserving their own right to defend the rule in court.
A combination of Supreme Court rulings and scientific findings is likely to eventually compel EPA to regulate power plants’ greenhouse gas emissions in some manner, though the extent of such regulations is up in the air.
In the meantime, EPA’s foes will double down on their efforts to get the Clean Power Plan tossed out for good. Critics argue that the Clean Air Act does not allow EPA to require tools such as renewable energy mandates to control pollution, and they say the agency’s authority is limited to cutting emissions from coal plants themselves.
EPA counters that the law allows it to choose the best path forward, and that the agency should receive deference to interpret conflicting statutes that were passed by Congress and signed into law.
Coal producer Peabody Energy, represented by liberal law icon Laurence Tribe, has also raised several constitutional concerns over the Clean Power Plan, though it remains unclear whether the courts will be receptive.

Read more: http://www.politico.com/story/2016/02/supreme-court-stays-obama-climate-change-rule-219033#ixzz3zlGmgPa9

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Is Obama's Signature Climate Rule Doomed?

Feb 10, 2016 | E&E Daily

By Amanda Reilly and Robin Bravender

The Supreme Court sent a shot across the bow to the Obama administration yesterday, throwing the fate of its landmark climate change rule into doubt.
The unprecedented move from the high court to stall the regulation while a lower court hears the case blindsided supporters of the regulation while giving critics reason to believe the justices will ultimately torpedo the rule.
Meanwhile, the move to freeze the regulation throws into disarray states' plans to comply with the regulation aimed at slashing power plants' greenhouse gas emissions. It may also turn climate change into a more relevant issue in the presidential race -- and other elections.
"We already expected climate change to be a big issue in the general election, having already seen a substantive discussion about climate action among the candidates in the Democratic field and heard various shades of climate denialism from the GOP front-runners," said League of Conservation Voters spokesman Seth Stein. "Now that climate change is a Supreme Court issue, it will likely become even more significant because whoever takes the White House might appoint three or more new justices."
It's unclear now whether the rule -- which the Obama administration leaned heavily on in recent international climate negotiations in Paris -- will ever be revived. The high court blocked it at least until a federal appeals court weighs its legality and potentially until the Supreme Court decides whether to uphold the rule, which could conceivably take years.
Senior administration officials yesterday cast the decision as a "temporary procedural" move and said that they remained confident in the rule's legal footing. They pledged that EPA would continue to work with states as litigation proceeds.
"We remain confident that we will prevail on the merits," White House spokesman Josh Earnest said last night. "Even while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need. At the same time, the administration will continue to take aggressive steps to make forward progress to reduce carbon emissions."
But there's a "certain sense of inevitability" about the rule's legal fate, now that the Supreme Court has put it on ice, said Dorsey & Whitney LLP attorney James Rubin.
He said he interprets the stay decision "to mean that this court, the way it's constituted, would likely find against the rule."Hill Republicans rejoice
The rule's fiercest critics on Capitol Hill applauded the news. House Speaker Paul Ryan (R-Wis.) called the stay "a victory for the American people and our economy," while House Majority Leader Kevin McCarthy (R-Calif.) declared it a "welcome development."
Rep. Morgan Griffith (R-Va.), who represents coal country, said he has "long believed" that EPA does not have the legal authority for the Clean Power Plan. Griffith, who was a supporter of legislation that would have blocked the rule until the resolution of court action, said he took "great pleasure" in learning of the Supreme Court's decision.
Other top House Republicans reacted with joy last night when informed of the high court's decision.
"I was not aware of the decision. It's good news," Energy and Commerce Chairman Fred Upton (R-Mich.), whose committee has led the chamber's legislative assault on the Clean Power Plan, said early in the evening.
Asked by E&E Daily if the decision validated the committee's concerns about the regulation, he said, "I think that's the case." House Natural Resources Chairman Rob Bishop (R-Utah) responded more effusively, calling the surprise ruling "one small step for mankind."
Senate Environment and Public Works Chairman James Inhofe (R-Okla.), a climate doubter who has been a vocal critic of the Clean Power Plan, called the decision a "major blow" to Obama's climate legacy.
Perhaps nobody was more pleased, though, than Senate Majority Leader Mitch McConnell (R-Ky.), who led an effort last year to convince governors to "just say no" and forgo submitting plans to comply with the rule. McConnell later spearheaded a measure through the Senate that would have scrapped the regulation and EPA's rule for limiting carbon emissions from new power plants through the rarely used Congressional Review Act. Obama eventually vetoed the resolutions.
"Last year I called on governors to hold off submitting plans mandated under the President's regressive federal energy regulations until courts could determine whether the regulations were even legal," McConnell said in a statement. "Today's Supreme Court order to halt those regulations -- regulations that attack the middle class and won't even have a meaningful impact on global carbon emissions -- is just the latest sign they may not be."
Democrats were quick to jump to EPA's side.
House Minority Leader Nancy Pelosi (D-Calif.) warned that climate change would lead to rising asthma rates, record droughts and surging oceans. She said the Supreme Court's ruling was "deeply misguided" and warned that it would allow "states that deny climate science to slow progress in reducing the carbon pollution that threatens the health of all Americans."
Sen. Sheldon Whitehouse (D-R.I.), one of the Senate's biggest champions for climate action, said he "deeply [deplores] what I believe will ultimately come to be seen as an infamous political action by the five Republican appointees on the Supreme Court."
The stay decision could ultimately hurt Republicans, though, if it causes climate change to rise in importance in the upcoming presidential election, predicted Paul Bledsoe, a former Clinton White House aide on climate change.
"This partisan stay order -- with all Republican-appointed justices voting against implementation of the Clean Power Plan -- will thrust climate change back into the presidential campaign spotlight," Bledsoe said. "Ironically, it is an issue more likely to cause problems for Republican candidates, since polls find that Americans overwhelmingly support climate action, and GOP presidential hopefuls lack serious climate protection plans of their own."
But Mike McKenna, a Republican energy strategist, predicted that the stay order will help bring into the election conversation a debate about which candidate will help protect state prerogatives and be in favor of affordable energy -- a conversation that could hurt Democrats, he said.
"The stay will help bring it into relief: The Democrats are at some real risk of being the party of expensive, exotic energy," he said. "And of course, it is a crushing blow for the Obama crew. They won't be around to rewrite the rule if it gets remanded or to enforce it if the courts ultimately uphold it."'Not expecting this'
Both sides agree on one thing: The stay order was unexpected.
Jeff Holmstead, an industry attorney at Bracewell whose clients are challenging the regulation, called the high court's move "remarkable."
It's "the first time that the Supreme Court has ever stepped in at this stage to put a rule on hold," he said. "It sends a pretty strong signal that their rule is going to be invalidated."
Even those who asked the Supreme Court to freeze the regulation "thought it was kind of a long shot, just because it had never happened before," Holmstead added.
Even White House officials last night called the stay "extraordinary and apparently unprecedented." EPA's environmental allies, too, were surprised by the move.
"I think everybody on both sides was not expecting this," said Sean Donahue, an attorney representing environmentalists in the lawsuit.
"We continue to think that this rule is legal and well-founded and urgently needed," Donahue added. "We expect to win. Today is a disappointment and a setback and a surprise, I admit, but it doesn't change our view of the merits of the case."
Many environmental organizations yesterday repeated the sentiments, expressing confidence in the overall vitality of the rule and referring to the Supreme Court ruling as a temporary setback.Implementation
Even states that were opposing the rule in court were working on plans to comply with it. Stakeholders last night were still grappling with what exactly the stay ruling means for all those efforts. The first deadline for states to either submit initial plans or demonstrate progress had been scheduled for September.
EPA last night pledged to continue working with partners on the rule, which requires states to take final action by 2018.
"We're disappointed the rule has been stayed, but you can't stay climate change and you can't stay climate action. Millions of people are demanding we confront the risks posed by climate change," EPA said. "And we will do just that. We believe strongly in this rule and we will continue working with our partners to address carbon pollution."
At an event last January in Washington, D.C., however, EPA Administrator Gina McCarthy indicated that the agency had no backup plan should a federal court block the rule while litigation plays out (E&ENews PM, Jan. 7).
McCarthy may shed some light on where exactly the agency goes next tomorrow, when she is scheduled to speak at a Clean Power Plan workshop in Washington, D.C., hosted by three organizations representing state regulators.
Some stakeholders said they believe that states will continue efforts they've already begun to cut carbon dioxide emissions.
"Whether or not the court ultimately upholds this particular rule, the need to cut carbon emissions will remain, and states need to figure out the most cost-effective ways to do that," said Bob Perciasepe, president of the Center for Climate and Energy Solutions and EPA's former No. 2 official. "It's in everyone's interest that states keep at it."
Bill Becker, executive director of the National Association of Clean Air Agencies, who has been a key figure in organizing state compliance efforts, expressed a similar sentiment.
"Almost every state in the country has been working tirelessly over the past two years in preparing Clean Power Plan strategies," Becker said. "We fully expect that many of these states will continue their efforts to reduce greenhouse gas emissions under their own legal authorities."
At least one state last night vowed to push forward with its implementation efforts.
"As the world gets hotter and closer to irreversible climate change, these justices appear tone-deaf as they fiddle with procedural niceties," California Gov. Jerry Brown (D) said in a statement. "This arbitrary roadblock does incalculable damage and undermines America's climate leadership. But make no mistake, this won't stop California from continuing to do its part under the Clean Power Plan."
Regardless of what happens to the Clean Power Plan, senior administration officials last night said that they believe the U.S. power sector will continue to shift away from coal.
"There are powerful drivers outside the scope of the Clean Power Plan that are going to continue to mean additional shifts in the power sector," a senior White House official said.
Reporter Corbin Hiar contributed.

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EPA Seeks Millions to Implement, Defend Climate Rule

Feb 9, 2016 | E&E News PM

By Amanda Reilly

U.S. EPA today requested more funding to defend its Clean Power Plan against legal challenges while also seeking money to help states write plans to comply with the program.
In its budget request, EPA said that legal counsel will be in "high demand" this fiscal year given that the first state implementation plans under the Clean Power Plan are due in September.
Along with requesting more legal backup, the agency has also requested a total of about $50.5 million for implementing the Clean Power Plan in fiscal 2017, EPA officials said today.
The Obama administration is broadly seeking more funding for programs to address climate change and boost clean energy programs in EPA's $8.267 billion request (Greenwire, Feb. 9).
"The Clean Power Plan is the top priority for the EPA and the central element of the U.S. domestic climate mitigation agenda," the agency wrote in a document explaining its budget request to Congress.
In its budget documents, EPA said that workload for the agency's legal program is expected to increase this year thanks to the Clean Power Plan.
Dozens of states, industries and labor groups are challenging the rule in federal court and urging the Supreme Court to block the rule.
EPA is asking for an extra $3.3 million to fund changes in its legal workforce costs due to salary adjustments, workforce support and benefit costs.
The agency also requested an additional $1.1 million in "essential funding" for litigation support that includes subscriptions to the law database LexisNexis, training and activities aimed at improving EPA's response to Freedom of Information Act requests.
"Legal counsel will continue to be in high demand to support the development of national process and technical guidance to inform development of approvable state plans," EPA said, "and in defending the EPA in ongoing litigation."
EPA noted that both the caseload for counseling attorneys and the complexity of legal challenges has already increased over the last five years.
"Investing the resources to improve legal defensibility of agency actions saves resources in the long run and increases certainty for regulated industry," EPA said in budget documents, "because actions are less likely to be reversed by the courts and have to be redone."
Along with asking for more money for legal guidance on the Clean Power Plan, EPA pledged to work closely with states this fiscal year to implement the program.
The approximately $50.5 million for Clean Power Plan implementation includes funding for EPA staffing assistance and technical support, as well as a $25 million pot for states. Of that $25 million for states, $17.5 million would support state modeling and technical analysis, EPA acting air chief Janet McCabe said today.
"In FY 2017, the agency will devote significant resources to provide technical assistance and other support to assist states in their implementation of the Clean Power Plan," EPA wrote in its budget request.
The National Association of Clean Air Agencies today applauded the budget request.
"State and local agencies need increased resources to address new and expanding responsibilities, including those related to the Clean Power Plan," said NACAA Executive Director Bill Becker. "To date, Congress has not appropriated one additional penny to help states comply with this program."
EPA Administrator Gina McCarthy today said that the fiscal 2017 budget request does not include a $4 billion fund that the Obama administration proposed last fiscal year for states that achieve early reductions under the Clean Power Plan or go beyond its targets. The agency has since proposed an optional program to reward states for early investments in renewable energy under the Clean Power Plan.

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House Panel to Vote on Emissions Compliance Bills

Feb 10, 2016 | BNA Daily Environment Report

By Patrick Ambrosio

A House Energy and Commerce subcommittee is set to vote on a pair of bills that would alter compliance obligations for the brick manufacturing and coal refuse-to-energy sectors under Environmental Protection Agency air regulations.
The Subcommittee on Energy and Power is scheduled Feb. 11 to mark up 12 bills, including legislation (H.R. 3797) that would change the way that power plants burning coal refuse are regulated under the EPA's Cross-State Air Pollution Rule and Mercury and Air Toxics Standards. Consideration of a bill that would stay compliance with air toxics standards for the brick industry also is on the panel's agenda.
Subcommittee Chairman Ed Whitfield (R-Ky.) said during a Feb. 3 hearing that the two EPA bills would make “targeted changes” to regulations to ease compliance burdens on industry. In a Feb. 8 statement announcing the markup, Whitfield described the package of 12 bills on the agenda as a way to boost domestic energy development and protect industry from overregulation by the EPA and the Energy Department.
“Collectively, these dozen bills demonstrate our commitment to strengthening and modernizing our energy infrastructure, creating jobs, and protecting manufacturers and businesses from harmful EPA and DOE rules,” Whitfield said.
Industry representatives, testifying on behalf of the trade group ARIPPA and the Western Pennsylvania Coalition for Abandoned Mine Reclamation, told the subcommittee during a Feb. 3 hearing that H.R. 3797 would prevent unnecessary overregulation of the coal refuse power plants, which they said provide environmental benefits through the cleanup of coal refuse piles. H.R. 3797 would provide coal refuse plants with additional sulfur dioxide emissions allocations under the Cross-State Rule (RIN 2060-AP50) and establish an alternative method for compliance with emissions limits for hydrogen chloride and sulfur dioxide under the Mercury Air Toxics Standards (RIN 2060-AP52, RIN 2060-AR31; 23 DEN A-5, 2/4/16).
The panel also heard testimony from brick manufacturers in support of a bill, known as the Blocking Regulatory Interference from Closing Kilns (BRICK) Act, that would delay compliance with the EPA's maximum achievable control technology (MACT) standards for the brick and structural clay manufacturing sector (RIN 2060-AP69) until litigation over the rule is resolved. Both industry and environmental organizations have sued over the September 2015 brick MACT rule and intend to challenge the methodology that the EPA used to set the emissions limits for hydrogen chloride and other pollutants (Sierra Club v. EPA, D.C. Cir., No. 15-1487, statement filed 1/28/16; 21 DEN A-2, 2/2/16).
Several Democrats on the panel, including Rep. Frank Pallone (D-N.J.) and Jerry McNerney (D-Calif.), strongly objected to both H.R. 3797 and the BRICK Act during the Feb. 3 legislative hearing.
The Energy and Power subcommittee will convene the markup on Feb. 10 for opening statements, then meet Feb. 11 to vote on whether to advance the legislation to the full committee.

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Senate Expected to Move Off Energy Bill

Feb 10, 2016 | BNA Daily Environment Report

By Ari Natter

Barring a last-minute agreement, the Senate was expected to move off of a broad energy bill and onto other business after a partisan dispute over providing funds to help Flint, Mich., deal with its lead-tainted water couldn't be resolved, senators said Feb. 9.
Negotiations were continuing on a compromise that could put the 424-page energy bill (S. 2012) and legislation to help Flint on separate tracks, but lawmakers seemed to think they would be unable to reach a breakthrough before the Senate was scheduled to take up legislation (H.R. 757) related to North Korea sanctions Feb. 10.
“We're hoping at some point we can find a resolution of that issue and pass this very significant, bipartisan energy bill,” Senate Majority Leader Mitch McConnell (R-Ky.) told reporters following the weekly Republican caucus luncheon. “We're still trying to find a way forward.”
Senate work on the five-part bill, which includes language to expedite the federal approval process for liquefied natural gas exports among many other measures, stalled after nearly two weeks spent considering the bill. When a deal to provide funding for Flint fell apart, Democrats who had been seeking as much as $600 million in direct funding for the city made good on a promise to block the bill from moving forward .
Bill Could Return
“This is not an effort to scuttle the energy bill at all, but it is an effort to make sure we've got a path forward on helping the families in Flint,” Sen. Debbie Stabenow (D-Mich.) told reporters. “Once we've got that, I think we can move very quickly.”
Stabenow said she was working on a compromise measure with Sen. James Inhofe (R-Okla.), but was waiting for the Congressional Budget Office to score it, and it remained to be seen if it would garner enough support to move forward.
The crisis in Flint emerged after the state's appointed emergency manager decided to switch from the city of Detroit's water system to using water from the Flint River, but measures to control corrosion weren't put in place at the time of the switch. This allowed lead to leach out of aging pipes and into residential tap water and resulted in elevated levels of lead in children's blood and other health issues (09 DEN A-2, 1/14/16).
The energy bill includes language to increase cybersecurity protections for the electricity grid and expedite the licensing process for hydropower projects. If enacted, it would be the first broad rewrite of energy policy since the Energy Independence and Security Act of 2007.
“As soon as we can figure out a way to break it lose then we have the opportunity to return to it and hopefully return to it quickly,” Sen. Lisa Murkowski (R-Alaska), the chairman of the Senate Energy and Natural Resources Committee and the bill's author, told reporters.

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Senate 'Not Giving Up' on Energy Bill -- McConnell

Feb 10, 2016 | E&E Daily

By Geof Koss

Senate Majority Leader Mitch McConnell vowed last night that the chamber would return to the bipartisan energy package as discussions continue on addressing the situation in Flint, Mich.
The Kentucky Republican made the pledge last night to Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), who delivered a lengthy floor speech on the energy package (S. 2012), which is on hold until the two parties can come to some sort of agreement for helping Flint residents deal with their lead-contaminated drinking water.
"I want to assure to the chairman of the Energy Committee that we're not giving up on this bill. We're going to stick with it," McConnell said. "It's got too much support on a bipartisan basis for us to walk away from it."
In her floor remarks, Murkowski outlined the years' worth of work that has gone into the bill, which she noted includes provisions from 62 senators. She also expressed sympathy for the people of Flint and said she understood the request from Michigan Democrats Debbie Stabenow and Gary Peters.
But she noted that she is "increasingly frustrated by where we are now and how the decisions that have been made to date are effectively stopping all activity on an energy bill" when the Flint situation is emblematic of a far bigger national infrastructure problem.
"That is a problem that demands a level of scrutiny and attention that we as a Congress should give, but ... is this energy bill the right vehicle for what is being sought right now?" Murkowski asked.
In a swipe at the Obama administration, Murkowski said the president's decision to grant a much more limited emergency declaration, rather than a disaster declaration, didn't help. She also knocked the president for not requesting funding for Flint in his "massive budget proposal."
"In fact, the funds that we have been looking at that could help Flint, the state revolving funds, that level is not increased," she said. "What we have actually seen has been a decrease to the clean water fund."
Earlier yesterday, Stabenow said she was hopeful that an agreement could be reached on a "path" for addressing Flint. "I'm supportive of moving forward on the energy bill, but we have to have a path," she told reporters.
That path could include an agreement to disentangle Flint from the energy bill, Peters said.
Murkowski has signaled that a separate package would be an acceptable option but said Democrats shouldn't continue to hold the energy package hostage over an unrelated issue.
"If Senator Stabenow insists that the energy bill can't move forward without some resolve, that's very problematic, and that's why I'm frustrated," she told E&E Daily last night. "If she will acknowledge that there's good progress being made on a solution for Flint, then one would think that we ought to be able to just move through some of these issues."
Stabenow predicted that the energy bill would quickly pass once there's been some agreement on helping Flint.
"I think people are very happy to go back to energy once we have a path for supporting the people of Flint," she said. "This is not an effort to scuttle the energy bill, but it is an effort to make sure we've got a path forward on helping the families of Flint. Once we have that, I think we can move very quickly."
But Murkowski said it's unclear exactly what conditions will need to be met to secure additional floor time for the bill, which has already consumed a week and a half of floor time.
"What I would like is I would be able to go to McConnell and [Minority Leader Harry Reid (D-Nev.)],with [Sen. Maria Cantwell (D-Wash.)], with a list of things that we have agreed on and a process that we have agreed on, and have them say, 'Yep, we're ready to go,' and we call it up and move it out," she said.
With two unrelated bills expected to consume the rest of the Senate's time this week and the chamber out for the Presidents Day recess next week, it will be two weeks at the earliest before the energy bill could resurface.

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