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ACC AM Feb 11
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(ACC Mentioned) Proposed Ban On Flame Retardants `Overly Broad'
Feb 10, 2016 | Chemical Watch
By Kelly Franklin
A petition, calling on the Consumer Products Safety Commission (CPSC) to ban organohalogenated flame retardants in several consumer product categories, has raised concern from industry groups over the approach of prohibiting a full class of chemicals. A coalition of close to twenty trade groups – including bodies representing the automotive... -
Lawmakers 'Not There Yet' On TSCA Conference -- Shimkus
Feb 10, 2016 | E&E News PM
By Sam Pearson
Lawmakers are still working out the kinks before a possible conference committee to merge House and Senate versions of legislation to overhaul how the federal government manages toxic chemicals, a key member said today. Rep. John Shimkus (R-Ill.), who leads the House Energy and Commerce Subcommittee on Environment and the... -
EPA Moves Toxics Release Inventory to New Office
Feb 11, 2016 | BNA Daily Environment Report
The Toxics Release Inventory, a database that tracks industrial pollution across the country, is moving internally within the Environmental Protection Agency to a new office. As of this week, the TRI program will be located within the EPA's Office of Chemical Safety and Pollution Prevention. It was previously located within the agency's Office... -
NIOSH Extends Nanosilver Comment Period
Feb 11, 2016 | BNA Daily Environment Report
The National Institute for Occupational Safety and Health extended the comment period on its new silver nanomaterials draft, the agency said in a Feb. 10 Federal Register notice. NIOSH is now calling on stakeholders to comment by April 22, rather than the original March 21 deadline. The draft urges industry to strengthen measures... -
NMFS, California Press EPA For ESA Consult Over Cadmium Water Criteria
Feb 10, 2016 | InsideEPA
By Maria Hegstad
The National Marine Fisheries Service (NMFS) is urging EPA to undertake Endangered Species Act (ESA) consultation with the service over a pending update to the agency's 2001 ambient water quality criteria for cadmium, a call echoed by environmentalists and California officials, who argue the criteria are insufficiently protective of endangered... -
How Lead Ended Up In Flint’s Tap Water
Feb 10, 2016 | Chemical & Engineering News
By Michael Torrice
When Virginia Tech researchers tested the water in LeeAnne Walters’s home in Flint, Mich., this past summer, one sample had lead levels that reached a staggering 13,200 parts per billion. That’s almost 900 times as high as the 15-ppb regulatory limit set by the Environmental Protection Agency. When lead levels exceed that threshold... -
Federal Appeals Court Pauses Crude-by-Rail Rule Lawsuit
Feb 11, 2016 | BNA Daily Environment Report
By Rachel Leven
A federal court has paused litigation challenging the Transportation Department's rule governing crude oil and other flammable liquid movement by rail, in line with the government's request (Am. Petroleum Inst. v. United States, D.C. Cir., No. 15-1131, 2/8/16). The U.S. Court of Appeals for the District of Columbia Circuit ordered... -
Danger: Feds Warn Of Winter Pipeline Hazards
Feb 10, 2016 | The Hill - E2 Wire
By Tim Devaney
Gas pipeline operators should take precautions this winter to prevent damage caused by the cold weather, federal regulators say. The Pipeline and Hazardous Materials Safety Administration (PHMSA) warned petroleum companies Wednesday that snow and ice can damage their gas pipelines. -
PHMSA Urges Gas Distributors to Be Wary of Ice
Feb 11, 2016 | BNA Daily Environment Report
The nation's pipeline safety regulator is advising gas distribution system operators to monitor the impacts of ice and snow accumulation on equipment and facilities and to alert the public of potential hazards. Snow and ice accumulation can lead to equipment malfunction and degradation, especially with exposed piping at pressure... -
Wyoming Unit Approves New, Tighter Limits for Flaring
Feb 11, 2016 | BNA Daily Environment Report
By Tripp Baltz
The Wyoming Oil and Gas Conservation Commission has approved new rules relating to the flaring and venting of natural gas at drill sites in the state (Amendments to Chapter 3, Section 39). The five-member commission Feb. 9 approved the amendments to its rules, with the intent of providing “better quality information to guide future... -
Power Plant Rule In Limbo, Obama Faces More Pressure To Crack Down On Oil And Gas
Feb 10, 2016 | PoliticoPro
By Elana Schor
With the centerpiece of his climate agenda suddenly stalled, President Barack Obama is facing stepped-up pressure to crack down on oil and gas companies while he still can. Now that the Supreme Court has put EPA's carbon rules for power plants on hold, at least for Obama's final year in office, some greens say the president must look beyond... -
Clean Power Plan Stay Halts Some State Planning
Feb 11, 2016 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court's decision to halt implementation of the Clean Power Plan should put the brakes on state efforts to develop compliance strategies for the rule, attorneys general fighting the carbon dioxide standards said. “The whole point of the stay is to stop us from having to provide any implementation plan. -
Obama v. Supreme Court
Feb 10, 2016 | PoliticoPro
By Josh Gerstein
President Barack Obama's drive to cement his legacy in the waning years of his administration has run into a formidable obstacle: The Supreme Court. The court's surprise move on Tuesday against Obama's effort to control climate change poses a more serious threat to his legacy than any other legal challenge before the justices... -
Supreme Court Climate Fight Shakes Up Senate Races
Feb 10, 2016 | The Hill - E2 Wire
By Timothy Cama and Devin Henry
The Supreme Court’s halting of the Obama administration’s chief climate rule is a new spark in the race for the Senate. Democrats and greens, who have long hoped to make climate change a flashpoint in November’s elections, say the court’s 5-4 stay order putting a hold on the Environmental Protection Agency’s (EPA) Clean Power Plan gives them... -
Power Plan Stay Could Prompt More Supreme Court Petitions
Feb 11, 2016 | BNA Daily Environment Report
By Andrew Childers and Anthony Adragna
The U.S. Supreme Court's unprecedented decision to stay the Clean Power Plan even before an appellate court heard arguments in the case could prompt more calls for early intervention from the nation's highest court in the future, attorneys said. The lack of reasoning in the justices' order makes it difficult to forecast ... -
Why The Surprise Supreme Court Decision Won't Thwart The Clean Power Plan
Feb 10, 2016 | Environmental Defense Fund
By Keith Gaby
In a surprise procedural decision yesterday, the U.S. Supreme Court put the Obama administration’s Clean Power Plan on pause while a lower court reviews it. The Court did not weigh in on the merits of the Environmental Protection Agency’s plan, and didn’t explain its reasoning, so we don’t know the legal basis for this unusual decision. -
EPA's Regulatory Options Unfold After Power Plan Stay
Feb 11, 2016 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court's unexpected decision to halt the Environmental Protection Agency's Clean Power Plan could revive debate over whether other provisions of the Clean Air Act are better suited to curbing greenhouse gas emissions. Rather than attempting to regulate greenhouse gas emissions on a sector-by-sector basis, the EPA... -
After Stay, Chief EPA Critic Urges 'All States' To Stop Work On ESPS Plans
Feb 10, 2016 | InsideEPA
By Lee Logan
Leading state opponents of EPA's greenhouse gas (GHG) standards for existing power plants say the Supreme Court's decision to stay the rule pending the outcome of legal challenges should spur other states to “put down your pencils” and halt work on any compliance activities, though it is far from clear that the agency's supporters will do so. -
EPA Losses Shed Light on Supreme Court’s Blocking of Carbon Rule
Feb 10, 2016 | The Wall Street Journal
By Jess Bravin and Brent Kendall
Recent Supreme Court rulings against the Environmental Protection Agency may provide some understanding of the justices’ rare move Tuesday to temporarily freeze the Obama administration’s carbon emissions initiative while it is litigated in the courts. Last year, the court ruled against the EPA on a rule requiring... -
Science Committee Attacks Environmental Rules
Feb 11, 2016 | BNA Daily Environment Report
By Cheryl Bolen
Republicans on the House Science, Space and Technology Committee attacked recent Environmental Protection Agency rules on power plants and clean water that they said were exorbitantly expensive and had little benefit. “The president's regulatory overreach will cost billions of dollars, cause financial hardship for American... -
EPA Vows Continued ESPS Work, Climate Action, Despite High Court Stay
Feb 10, 2016 | InsideEPA
By Abby Smith & Doug Obey
Despite the Supreme Court stay of EPA's existing power plant greenhouse gas standards, a top official says the agency will continue to develop the rule's policy framework and work with businesses and states that continue compliance planning, while also promising to step up efforts to adopt several other pending climate rules before... -
The Court Blocks Efforts to Slow Climate Change
Feb 11, 2016 | The New York Times
The Supreme Court’s extraordinary decision on Tuesday to temporarily block the Obama administration’s effort to combat global warming by regulating emissions from power plants was deeply disturbing on two fronts. It raised serious questions about America’s ability to deliver on Mr. Obama’s pledge in Paris in December... -
Fallout From Climate Ruling Lands Quickly
Feb 10, 2016 | PoliticoPro
By Andrew Restuccia and Alex Guillén
The Supreme Court’s decision to slam the brakes on President Barack Obama’s most important climate regulation had an immediate impact at home and abroad Wednesday, prompting several states to halt their carbon-cutting efforts while sowing doubts internationally about the United States’ ability to meet its promises. -
House Overwhelmingly Backs Response Bill
Feb 10, 2016 | E&E News PM
By George Cahlink
The House approved legislation this afternoon 216-2 to expand U.S. EPA's authority to notify communities of elevated lead levels in drinking water, a move lawmakers from both parties touted as an initial response to the ongoing water crisis in Flint, Mich. The bill, H.R. 4470, now heads to the Senate. -
House Boosts EPA Authority to Publicize Water Violations
Feb 11, 2016 | BNA Daily Environment Report
By Amena H. Saiyid
A near unanimous House passed bipartisan legislation Feb. 10 that would strengthen the Environmental Protection Agency's authority to notify the public when lead levels in drinking water violate federal standards. Authored by Reps. Fred Upton (R-Mich.) and Dan Kildee (D-Mich.), the Safe Drinking Water Act Improved Compliance...
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(ACC Mentioned) Proposed Ban On Flame Retardants `Overly Broad'
Feb 10, 2016 | Chemical Watch
By Kelly Franklin
A petition, calling on the Consumer Products Safety Commission (CPSC) to ban organohalogenated flame retardants in several consumer product categories, has raised concern from industry groups over the approach of prohibiting a full class of chemicals.
A coalition of close to twenty trade groups – including bodies representing the automotive, textile, electronics and toys sectors – has called on the CPSC to deny the petition. This is on the grounds that it is “overly broad, unnecessary, and would impose unknown and unprecedented regulatory obligations on industry, with no defined benefits for consumers.”
The petition, submitted by several NGOs last year, asks the CPSC to promulgate a regulation under the Federal Hazardous Substances Act (FHSA). This would name products, containing any non-polymeric, additive organohalogen flame retardant, as “banned hazardous substances” for the following product categories: children's products, toys, and childcare articles (excluding child car seats);upholstered residential furniture;mattresses and mattress pads; andelectronics devices with external casings containing the substances.
The petition attracted more than 150 comments. Among these were dozens of submissions from non-petitioning NGOs, doctors, governmental bodies and private citizens, speaking out in support.
“Toxic flame retardants are associated with neurodevelopmental impacts, including reduced IQ, cancer, reproductive impairments, endocrine disruption and more,” said comments, submitted by non-petitioning NGO, the US Public Interest Research Group (Pirg). “Fire safety is critically important, but there are better ways to protect against injuries from fire than to expose consumers to toxic chemicals.”
But the industry coalition says that the petition seeks to eliminate chemicals “that are distinct from one another in their properties, uses and levels of risk, at particular exposure levels”, and that a ban of the full class of substances “is inappropriate and flies in the face of sound science”.
The coalition further cautions the CPSC that implementing a regulation, without an analysis of each of the chemicals covered by it, “would set an inappropriate and unsupported precedent for federal chemical regulation, especially one that will have a federal interagency impact”.
Several groups, representing specific consumer products named in the petition – including the Toy Industry Association (TIA), the American Home Furnishings Alliance (AHFA) and the International Sleep Products Association (ISPA) – said, in independent cover letters, that while the named substances are not typically used in their members' products, they oppose the petition.
“ISPA opposes, as a matter of policy, any administrative action that, in effect, would prohibit the use of entire families of chemicals in consumer products, as petitioners request."
“In general, the Commission’s regulatory mission is best served, through safety standards that contain performance-based safety criteria, as opposed to proscriptive component-based standards that require the use of specific components or ingredients, or that conversely prohibit the use of [such],” says the trade group.
The American Chemistry Council's North American Flame Retardant Alliance (Nafra) says that the petition's suggestion that additive organohalogen flame retardant chemicals are the same in physico-chemical properties and toxicity is “a broad, sweeping generalisation [that] is not supported by even the most cursory examination of the substances”.
They say the number of substances affected by the ban is unknown – by the petitioners' own admission – but numbers at least 83 substances.
Granting the petition would “[advance] an inappropriate and troubling application of the FHSA”, it adds.
The CPSC did not respond to a request for a comment by publication time.
Regulations governing petitions to the CPSC require it to grant or deny a petition, “within a reasonable time after it is filed”. Granting a petition initiates a formal rulemaking process, and “does not necessarily mean that the Commission will issue, amend, or revoke the rule as requested in the petition”.
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Lawmakers 'Not There Yet' On TSCA Conference -- Shimkus
Feb 10, 2016 | E&E News PM
By Sam Pearson
Lawmakers are still working out the kinks before a possible conference committee to merge House and Senate versions of legislation to overhaul how the federal government manages toxic chemicals, a key member said today.
Rep. John Shimkus (R-Ill.), who leads the House Energy and Commerce Subcommittee on Environment and the Economy, said lawmakers in the House were trying to stick together to push for a more limited final bill.
"As far as a formal conference, we're not there yet," Shimkus said today.
Shimkus introduced one version, H.R. 2576, or the "TSCA Modernization Act," last year. The House passed it 398-1 last summer (E&E Daily, June 24, 2015).
A broader Senate plan, S. 697 or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," attracted most chamber members as co-sponsors and unanimously passed.
Still, some advocates prefer the more limited House bill.
"We've had success because we've had a good-faith effort with the Democrats to try to stay united on a House position as long as we can," Shimkus said. "Now, we know that can't happen forever."
Lawmakers want to resolve most thorny issues informally before proceeding to a formal conference, Shimkus said, though the final decision will be up to Energy and Commerce Chairman Fred Upton (R-Mich.).
"We're trying to reconcile a lot of the cats and dogs before we deal with the elephant in the room," Shimkus said.
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EPA Moves Toxics Release Inventory to New Office
Feb 11, 2016 | BNA Daily Environment Report
The Toxics Release Inventory, a database that tracks industrial pollution across the country, is moving internally within the Environmental Protection Agency to a new office. As of this week, the TRI program will be located within the EPA's Office of Chemical Safety and Pollution Prevention. It was previously located within the agency's Office of Environmental Information. The move was made with the intent of streamlining the EPA's chemical management efforts and to make TRI a more integral part of the EPA's chemical management and pollution prevention efforts, according to a statement from the agency.
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NIOSH Extends Nanosilver Comment Period
Feb 11, 2016 | BNA Daily Environment Report
The National Institute for Occupational Safety and Health extended the comment period on its new silver nanomaterials draft, the agency said in a Feb. 10 Federal Register notice. NIOSH is now calling on stakeholders to comment by April 22, rather than the original March 21 deadline. The draft urges industry to strengthen measures to protect workers from silver nanomaterial exposure by increasing hazard assessment and substituting those materials with safer substances (17 DEN A-19, 1/27/16). The agency already has a 10 micrograms per cubic meter recommended exposure limit for silver metal dust and soluble compounds, but the draft says research to date is “too limited” to issue a new policy on particle-specific exposure risks. Exposure to silver nanomaterials can lead to argyria, or argyrosis, a condition in which the skin turns blue or blueish-grey. The notice is available at https://www.gpo.gov/fdsys/pkg/FR-2016-02-10/pdf/2016-02647.pdf.
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NMFS, California Press EPA For ESA Consult Over Cadmium Water Criteria
Feb 10, 2016 | InsideEPA
By Maria Hegstad
The National Marine Fisheries Service (NMFS) is urging EPA to undertake Endangered Species Act (ESA) consultation with the service over a pending update to the agency's 2001 ambient water quality criteria for cadmium, a call echoed by environmentalists and California officials, who argue the criteria are insufficiently protective of endangered species.
NMFS says in Jan. 26 comments that it "understands that EPA considers its development of water quality guidelines to not be subject to ESA consultation" requirements. But, the service says, "EPA's reliance on ESA section 7 consultation only when the agency approves state-proposed water quality criteria results in a piecemeal approach when considering implications of such guidelines for broadly ranging species. The segmentation of an action under ESA section 7 leads to an incomplete consideration of the effects of the action that is legally vulnerable."
Additionally, NMFS says it has previously expressed concerns about EPA's guideline development methodology and substantial data gaps. Therefore, "EPA needs to work with NMFS to conduct a more thoughtful evaluation of the implications of their guidelines for ESA-listed species and apply a more suitable analysis in guideline derivation, taking existing assessments of state-proposed criteria into consideration," NMFS says.
EPA in December proposed updated water quality criteria for cadmium that would relax the criterion intended to protect aquatic species from chronic exposure to the metal in freshwater, while strengthening the criteria for estuarine and marine waters in order to protect three additional species.
The criteria is intended to protect wildlife in freshwater and estuarine/marine waters, and considers both chronic risks, considered to be a duration of four days or longer, and acute risks, addressed with a risk level based on a one-hour exposure. EPA requested comment on its proposal through Feb. 1.
EPA's risk-based criteria are not binding, but states and tribes often use them to craft enforceable water quality standards that take into account waterbodies' uses and antidegredation requirements. States can also make modifications to EPA's criteria based on local concerns, or craft their own, but EPA must approve their approaches.
NMFS concludes that "[b]oth agencies need to agree on and implement an assessment strategy that takes into account the aggregate effects of EPA's authorizations of state-proposed water quality criteria such that EPA can ensure that these authorizations, taken together, do not jeopardize the continued existence of ESA-listed species or adversely modify designated critical habitat. Given the scope of the guidelines, the conclusions of such an assessment and any associated implementation guidance would need to have the same authority/regulatory implications of a section 7 consultation."
Criteria 'Ceiling'
The services' arguments are echoed in comments from the California State Water Resources Control Board (CSWRCB) and the environmental group Center for Biological Diversity (CBD), who point to EPA's consideration in recent years of criteria proposed by California, Idaho and Oregon. CBD argues that ESA and the Clean Water Act (CWA) require water quality criteria to be protective of all species, and that EPA should consult on its criteria with NMFS and the Fish and Wildlife Service, collectively known as the services.
"Water quality standards under the . . . [CWA] must protect all existing uses in a waterbody, and such 'uses' often include supporting species that are listed as threatened or endangered pursuant to the [ESA]," CBD's Feb. 1 comments state. "Thus, the establishment of water quality criteria under Section 304(a)(1) is an action for purposes of Section 7 because such criteria set the ceiling for establishment of water quality standards."
CBD adds that consultation would further benefit EPA's development of the criteria because it would bring additional experts to consider issues raised by the peer reviewers that considered the criteria. "EPA and peer reviews disagreed over the effects of bioaccumulation of cadmium and how it may enter the food chain. Concerns were also raised over the limited species used to generate the hardness correction for the freshwater chronic toxicity data set and EPA's failure to incorporate a biotic ligand model or BLM, including for dissolved organic carbon or DOC, into the process used to revise the criteria. Involving biologists from the Services could benefit resolution of these and presumably other issues related to the establishment of criteria for cadmium."
In its Feb. 1 comments, CSWRCB notes that Oregon in 2004 sought to implement EPA's 2001 criteria, but when EPA Region 10 reviewed Oregon's proposal in ESA consultation with NMFS, the service concluded that the cadmium criteria were insufficiently protective. CSWRCB writes that as a result, Region 10 disapproved Oregon's proposed criteria, and NMFS established a process for Oregon to craft new criteria.
"Perhaps because this prescription was intended for the State of Oregon, the recommended threshold in the Draft Recommend Criteria did not address any of the above requirements," CSWRCB writes. "Instead the criteria were derived using the same method used to derive the previous criteria set. The resulting criteria maximum concentration is actually higher than the 2001 acute value, at 2.1 [micrograms per liter (ug/L)] at a hardness of 100 mg/L (as CaC03), despite the addition of new data for salmonids."
The Golden State agency notes that it shares some endangered and threatened wildlife with Oregon. Because of this, CSWRCB adds, "we believe that the NMFS biological opinion must be considered for California waters where populations of these fish either do or may exist. In addition, since the NMFS determined that threatened and endangered species would likely be jeopardized by an acute cadmium limit of 2.0 ug/L, it is extremely likely that a 2.1 ug/L limit will not be viewed favorably in an [ESA] consultation for an EPA approval action in this state."
CSWRCB concludes, "the new chronic criterion presents our state with the same challenge: it is much higher than criteria contained in FWS and NMFS biological opinions, which are designed to minimize incidental take of threatened and endangered species. Therefore [CSWRCB] does not believe that the 2015 draft Recommended Water Quality Criterion for Cadmium is sufficiently protective of threatened and endangered species within the State of California, or for West Coast freshwater fisheries in general."
Critics' Concerns
By contrast, other states and the Utility Water Act Group (UWAG), an ad hoc group of energy companies and associations, argue that EPA's proposal is too strict, and raise numerous questions about how the criteria were calculated, which species were selected as most sensitive and which studies were used.
When EPA last updated its cadmium criteria, in 2001, the agency said stricter criteria were necessary because of new data that showed aquatic life exposure to the pollutant over an extended period of time could have negative health impacts. The 2001 criteria revised the chronic exposure limit "by orders of magnitude," a wastewater industry source said in 2004 when the sector warned the 2001 criteria would be impossible for many wastewater treatment plants to meet.
Cadmium is a naturally-occurring, ubiquitous toxicant that enters waterbodies through erosion from rock or mining sites. The substance also is present in various types of food and laundry detergent, and enters wastewater treatment plants when they process these elements.
While many of the agency's proposed changes to the criteria are relatively small, EPA is proposing to relax its freshwater chronic criteria from 0.25 ug/L to 0.73 ug/L. For acute exposures, EPA is proposing to change the freshwater criteria from 2.0 ug/L to 2.1 ug/L.
By contrast, the agency is proposing to somewhat strengthen its criteria for estuarine and marine waters. The acute criterion would change from 40 ug/L to 35 ug/L. The non-freshwater chronic criterion would be tightened from 8.8 ug/L to 8.3 ug/L.
Illinois, one of the states questioning EPA's criteria, argues that its chronic criterion "is based on a flawed toxicity test for the amphipod Hyalella azteca," published by the U.S. Geological Survey (USGS) in 2000, according to Jan. 28 comments from the Illinois Environmental Protection Agency (IEPA). "IEPA has participated in several discussions with Region 5 USEPA, USEPA Office of Science and Technology, and state protection agency personnel regarding the questioned validity of the chronic endpoint developed for Hyalella azteca. The concerns raised by the IEPA have yet to be resolved and, at this juncture, appear to only be resolvable through a retest of 2000 USGS study."
IEPA writes that while EPA's Office of Science and Technology appears to support its request to retest the USGS study, Region 5 has informed the state that a March 30 court ordered deadline for the criteria makes the retest impossible. "IEPA is in support of the adoption of the acute cadmium criterion as proposed, but requests a one year extension be afforded for the adoption of the chronic criterion. . . . If the extension cannot be granted, removal of Hyalella azteca from the chronic dataset and a recalculation of the chronic criterion is the only acceptable alternative."
Wisconsin Department of Natural Resources also raises concern about the Hyalella azteca test in its Jan. 21 comments, suggesting that EPA "formalize the toxicity test method for Hyallela azteca and use this method to develop additional chronic toxicity test results," which "would provide additional information regarding the sensitivity of Hyalella azteca to cadmium."
Acute Exposure Meanwhile, UWAG questions EPA's decision to change the duration of its acute exposure criteria from 24 hours to one hour. UWAG argues that EPA has provided insufficient evidence that the change is necessary, and it will require additional monitoring beyond what is performed currently. "In every prior iteration of the cadmium criteria since 1980, EPA has endorsed a 24-hour duration for the acute criteria," UWAG's counsel, Hunton and Williams, writes in Feb. 1 comments. "The Agency appears to be making a policy decision that the acute criteria should be 1 hour, not that the science associated with cadmium toxicity supports the revision."
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How Lead Ended Up In Flint’s Tap Water
Feb 10, 2016 | Chemical & Engineering News
By Michael Torrice
When Virginia Tech researchers tested the water in LeeAnne Walters’s home in Flint, Mich., this past summer, one sample had lead levels that reached a staggering 13,200 parts per billion.
That’s almost 900 times as high as the 15-ppb regulatory limit set by the Environmental Protection Agency. When lead levels exceed that threshold, water utilities must act to reduce concentrations of the toxic element.
“What was so scary about LeeAnne’s house was not one sample,” says Marc A. Edwards, the Virginia Tech environmental engineer who led the team. “We took 30 samples over 20 minutes, and the average was over 2,000 ppb. And even after 20 minutes of flushing, it never got below 300 ppb.”
In terms of sustained high levels of lead in a home, Edwards had seen nothing like it before. “It was in a league of its own.”
Lead contamination is the most troubling in a series of water problems that have plagued Flint since the summer of 2014. All of them were caused by corrosion in the lead and iron pipes that distribute water to city residents. When the city began using the Flint River as its water source in April 2014, it didn’t adequately control the water’s ability to corrode those pipes. This led to high lead levels, rust-colored tap water, and possibly the growth of pathogenic microbes. [+]Enlarge LOSS OF CONTROL When Flint changed its water supply in 2014, the city didn’t adequately control for corrosion, resulting in its water woes.
Flint isn’t the only city susceptible to these problems. The pipes in its old distribution system had seen the same water for decades. Switching water supplies in 2014 changed the chemistry of the water flowing through those pipes. When a switch like this happens, the water system is going to move toward a new equilibrium, says Daniel Giammar, an environmental engineer at Washington University in St. Louis. “It could be catastrophic as it was in Flint, or it could be a small change.”
Before 2014, Flint was getting its water from the Detroit Water & Sewerage Department, which would draw water from Lake Huron and then treat it before sending it to Flint. Looking to lower the city’s water costs, Flint officials decided in 2013 to instead take water from the Karegnondi Water Authority, which was building its own pipeline from the lake. Shortly after that, Detroit told Flint it would terminate their original long-term water agreement within a year and offered to negotiate a new, short-term agreement. Flint declined the offer. As an interim solution, while waiting for the new pipeline to be finished, Flint began taking water from the Flint River and treating it at the city’s own plant.
Problems with the city’s tap water started the summer after the switch. First, residents noticed foul-tasting, reddish water coming out of their taps. In August and September, the city issued alerts about Escherichia coli contamination and told people to boil the water before using it. A General Motors plant stopped using the water in October because it was corroding steel parts. In December, the Michigan Department of Environmental Quality notified Flint that its water was in violation of national drinking water standards because it contained high levels of trihalomethanes, toxic by-products of chlorine disinfection.
Then, in early 2015, reports of high lead levels started making news. In January, it was Flint’s University of Michigan campus; in February, it was the Walters home.
By early September, Edwards and his Virginia Tech team had sampled water from 252 homes and reported on their website, flintwaterstudy.org, that the city’s 90th percentile lead level was 25 ppb. EPA’s action limit is based on a 90th percentile calculation, meaning that if 10% of homes exceed the agency’s 15-ppb threshold, then action is required.
That same month a team led by Mona Hanna-Attisha, a pediatrician at Hurley Children’s Hospital, in Flint, released data showing that the number of Flint children with elevated levels of lead in their blood had increased since the water change. The percentage of affected kids went from 2.4% to 4.9%, according to a paper they published recently (Am. J. Public Health 2016, DOI: 10.2105/ajph.2015.303003). In areas with the highest lead concentrations in the water, about 10% of the children had elevated blood levels of the element. Lead is neurotoxic and can disrupt children’s development, leading to behavioral problems and decreased intelligence.
With evidence of lead contamination mounting, Flint switched back to the Detroit water in October.
So why did the switch to Flint’s river water cause this catastrophe?
To understand the problem, consider that as water travels through the miles of pipes in a city’s distribution system, molecules in the water react with the pipes themselves. “The distribution system acts like a geochemical reactor,” says Haizhou Liu, an environmental engineer at the University of California, Riverside. “There are miles and miles of pipes—some iron, copper, and lead—that get corroded.” This corrosion occurs when oxidants, such as dissolved oxygen or chlorine disinfectant, react with elemental iron, lead, or copper in the pipes.
Cities no longer install lead pipes. But older cities such as Flint still rely on them, usually as service lines that connect water mains in the street to a home’s water meter. A 1990 report from the American Water Works Association estimates there are millions of lead service lines in the U.S. To limit how much lead leaches into the water from these pipes and some homes’ plumbing, EPA’s Lead & Copper Rule requires water utilities serving more than 50,000 people to establish a plan to monitor and control corrosion.
As part of these plans, utilities treat their water to maintain a mineral crust on the inside surfaces of their pipes. This so-called passivation layer protects the pipes’ metal from oxidants in the water. The coatings consist, in part, of insoluble oxidized metal compounds produced as the pipe slowly corrodes.
If the water’s chemistry isn’t optimized, then the passivation layer may start to dissolve, or mineral particles may begin to flake off of the pipe’s crust. This exposes bare metal, allowing the iron, lead, or copper to oxidize and leach into the water.
Environmental engineers that C&EN contacted say that, on the basis of how Flint treated the river water, the water chemistry was not optimized to control corrosion.
Most important, the treated Flint River water lacked one chemical that the treated Detroit water had: phosphate. “They essentially lost something that was protecting them against high lead concentrations,” Giammar says. Cities such as Detroit add orthophosphate to their water as part of their corrosion control plans because the compound encourages the formation of lead phosphates, which are largely insoluble and can add to the pipes’ passivation layer.
Flint didn’t use orthophosphate despite a recommendation to do so from Veolia, an environmental services company that studied the quality of the treated Flint River water after the switchover. In a March 2015 report, Veolia suggested that the city spend $50,000 annually to add the corrosion inhibitor. By press time, C&EN was unable to get a comment from Flint city officials about why a corrosion inhibitor wasn’t added to the river water.
The entire Flint water crisis could have been avoided if the city had just added orthophosphate, Edwards says. He bases his opinion, in part, on experiments his group ran on the treated Flint River water. The researchers joined copper pipes with lead solder and then placed the pieces in either treated Flint River water or treated Detroit water. After five weeks in the Flint water, the joined pipes leached 16 times as much lead as those in the Detroit water, demonstrating just how corrosive the treated Flint water was. But when the scientists added a phosphate corrosion inhibitor to the Flint water, the factor went down to four.
Still, orthophosphate isn’t the only corrosion solution. Some water utilities treat water so it has a high pH and high alkalinity, Giammar says. Such conditions decrease the solubility of lead carbonates, which also contribute to the pipe’s protective mineral layer.
The treated Flint River water had a relatively low pH that decreased over time. According to monthly operating reports from the Flint treatment plant, the city’s water had a pH of about 8 in December 2014, but then it slowly dropped to 7.3 by August 2015. Environmental engineers say that if water pH drifts too low in the absence of orthophosphate, the water can start to leach high levels of lead from pipes. [+]Enlarge TAP TROUBLES Foul-tasting, discolored water started coming out of Flint’s taps in the summer of 2014. Credit: Flintwaterstudy.org
The pH drop over time seems to indicate that plant operators in Flint didn’t even have a target pH as part of a corrosion plan, Edwards says. Water utilities usually find a pH that’s optimal for preventing corrosion in their system. For example, in Boston, another city with old lead pipes, average water pH held steady around 9.6 in 2015, according to reports from the Massachusetts Water Resources Authority. By press time, C&EN wasn’t able to get a comment from Flint city officials about whether they had a target pH for the water.
Another chemical factor that contributed to the treated river water’s corrosiveness was its chloride concentration. The treated Detroit water’s average chloride level was 11.4 parts per million in 2014, according to an annual water quality report from the Detroit Water & Sewerage Department. Meanwhile, the treated Flint water had 85-ppm chloride in August 2015, according to a monthly operating report from the Flint treatment plant. The plant may have contributed to these high levels when it tried to address high levels of toxic trihalomethanes.
Disinfection by-products such as trihalomethanes can form through reactions between organic matter in water and chlorine disinfectant added at treatment plants. The Flint plant had increased the amount of chlorine it used in the summer of 2014 to combat the E. coli contamination problem. To reduce levels of trihalomethanes that formed, the plant removed organic matter from the water by adding ferric chloride, which coagulates organic matter, making it easier to filter out. Even though the treatment took care of the trihalomethanes problem, it increased the water’s chloride levels.
Environmental engineers worry about high chloride levels because studies have shown that lead corrosion is more likely when the ratio of chloride to sulfate concentrations is greater than 0.58. Researchers at Virginia Tech calculated the ratio for treated Detroit water as 0.45 and for treated Flint River water as 1.6.
Corrosion of lead pipes caused Flint’s most serious water issue, but corrosion of the city’s iron pipes also created problems. The chemistry that controls iron pipe corrosion is a little more complicated than the chemistry surrounding lead pipe corrosion, but some of the same factors play a role.
Problems with Flint’s iron pipes started early: The rust color and bad taste of the water coming out of residents’ taps in the summer of 2014 was a sign that the passivation layer on iron pipes was dissolving into the water. [+]Enlarge FALLING The pH of treated Flint River water dropped over much of 2015, suggesting water officials didn’t have a target pH to control for corrosion.
SOURCE: Monthly reports from Flint’s water treatment plant Credit: Flintwaterstudy.orgBut the issue that worries environmental engineers most about iron corrosion is that it could encourage the growth of pathogens in the distribution system. As the mineral layer in iron pipes falls off, it exposes bare iron that can reduce free chlorine added to the water as a pathogen-killing disinfectant. Walters’s home—the one with lead levels that were almost 900 times as high as the EPA limit—had no detectable chlorine levels over 18 days of monitoring by the Virginia Tech team.
Susan J. Masten, an environmental engineer at Michigan State University, points out that the Flint water distribution system has another issue that could have worsened both the corrosion and disinfection problems. Much of the distribution system was built when the city’s population was about 200,000 and Flint was a major manufacturing center. But the city now has less than half the population, and much of the industry, which used a lot of Flint’s water, has left town. As a result, water usage has dropped significantly, while the system’s capacity has remained the same. [+]Enlarge RUSTED A look inside Flint’s pipes reveals different types of iron corrosion. Credit: Flintwaterstudy.org
“That means water is residing in the distribution system for very long periods of time,” Masten says. In some places, the water sits in pipes for more than six days before use, providing more time for reactions that corrode pipes and break down chlorine.
Although they acknowledge that they won’t ever be able to directly prove it, the Virginia Tech researchers think that the E. coli contamination in 2014 could have been due to problems with maintaining sufficient chlorine levels in the water. Bolstering their case are two outbreaks of Legionnaires’ disease, a waterborne respiratory infection caused by Legionella bacteria, in and around Flint—one starting in June 2014, and another in May 2015.
Now that Flint has switched back to the Detroit water, it may take months to a year for pipes to regain their passivation layers, for corrosion to slow to normal levels, and for lead concentrations to drop back into an acceptable range, say the environmental engineers that C&EN contacted. The lesson from Flint, they say, is to continually monitor water chemistry, especially when switching between water supplies.
“What we learned here is when we collect data, we need to use those data,” Masten says. She points out that the water utility officials were already collecting all the data they needed—pH, alkalinity, chloride levels—to determine if the water was too corrosive.
“Learning from Flint, I think the key message is to consider the connections between the stability of the water infrastructure and the chemistry of the water flowing through that infrastructure,” UC Riverside’s Liu says. “That will inevitably control the water quality at the tap.”
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Federal Appeals Court Pauses Crude-by-Rail Rule Lawsuit
Feb 11, 2016 | BNA Daily Environment Report
By Rachel Leven
A federal court has paused litigation challenging the Transportation Department's rule governing crude oil and other flammable liquid movement by rail, in line with the government's request (Am. Petroleum Inst. v. United States, D.C. Cir., No. 15-1131, 2/8/16).
The U.S. Court of Appeals for the District of Columbia Circuit ordered Feb. 8 that the case be held in abeyance and that motions related to future proceedings be submitted to the court by March 1. The federal government's motion was opposed by several environmental groups, including the Sierra Club and Scenic Hudson.
The ruling is a win for the Transportation Department, which requested time to assess how Congress's recent highway law affects the rule and litigation claims. It's a loss for the environmental groups, which wanted to avoid additional delays and said the stay was unwarranted.
This was the latest action in litigation filed by several industries and companies related to oil and rail, as well as environmentalists and public interest groups. The actions were against the department's Pipeline and Hazardous Materials Safety Administration's crude-by-rail rule (RIN 2137-AE91).
The rule sets tank car, speed, classification and other requirements. It was finalized in May 2015, but since then, Congress passed the highway FAST Act (Pub. L. 114-94) making several changes to railcar brakes and other requirements.
The government filed its motion Dec. 15 for the court to hold the case in abeyance, and environmentalists and Scenic Hudson filed their motion in opposition Dec. 18. Several plaintiffs such as the American Petroleum Institute didn't take issue with the government's requested stay (246 DEN A-9, 12/23/15).
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Danger: Feds Warn Of Winter Pipeline Hazards
Feb 10, 2016 | The Hill - E2 Wire
By Tim Devaney
Gas pipeline operators should take precautions this winter to prevent damage caused by the cold weather, federal regulators say.
The Pipeline and Hazardous Materials Safety Administration (PHMSA) warned petroleum companies Wednesday that snow and ice can damage their gas pipelines.
"The accumulation of snow and ice increases the potential for damage,” the agency wrote Wednesday in a safety advisory bulletin posted in the Federal Register.
The PHMSA urged gas pipeline operators to prevent snow and ice build-up to avoid safety issues.
Gas pipeline operators have attracted growing scrutiny following recent high-profile gas leaks. As regulators shift their focus toward pipeline safety issues, the PHMSA is concerned about potential winter damage.
The PHMSA pointed to gas pipeline incidents that have occurred in past winters due to the “stress of snow and ice.” Pipeline operators should monitor the snow build-up and warn their communities of potential dangers, the agency said.
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PHMSA Urges Gas Distributors to Be Wary of Ice
Feb 11, 2016 | BNA Daily Environment Report
The nation's pipeline safety regulator is advising gas distribution system operators to monitor the impacts of ice and snow accumulation on equipment and facilities and to alert the public of potential hazards. Snow and ice accumulation can lead to equipment malfunction and degradation, especially with exposed piping at pressure control stations and propane tanks, the Pipeline and Hazardous Materials Safety Administration said in a public inspection notice to appear in the Federal Register Feb. 11. The agency offered a number of steps gas distribution entities should take, ranging from public notification of customers of safety steps to take if there is “is an odor of gas present or if gas appliances are not functioning properly” to company-wide monitoring of weather and accumulation of moisture in equipment. The public inspection notice is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-02704.pdf.
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Wyoming Unit Approves New, Tighter Limits for Flaring
Feb 11, 2016 | BNA Daily Environment Report
By Tripp Baltz
The Wyoming Oil and Gas Conservation Commission has approved new rules relating to the flaring and venting of natural gas at drill sites in the state (Amendments to Chapter 3, Section 39).
The five-member commission Feb. 9 approved the amendments to its rules, with the intent of providing “better quality information to guide future determination on appropriate flaring and venting volumes and to prevent waste,” the commission said in a statement of principal reasons for the amendments.
The rules didn't ban venting, the release of natural gas from wells, as environmental groups urged and has been done in some other states like North Dakota. Flaring involves the burning of natural gas at the wellhead in lieu of capturing it for use or for markets.
“More could have been done at this stage to reduce waste and protect Wyoming's air quality,” Amber Wilson, environmental quality advocate for the Wyoming Outdoor Council, an environmental group based in Lander, Wyo., said. “Venting is an antiquated, dirty and dangerous practice that should no longer be considered a standard practice in oil and gas.”
Outright Prohibition Said Better
In instances where venting still is necessary, for instance when the gas stream isn't of an adequate volume to flare, a more specific exception could have been carved out for those wells, as was done in North Dakota and as is proposed most recently by the Interior Department's Bureau of Land Management, she said.
“An outright prohibition on venting with specific exceptions better conveys the message that venting is an unacceptable practice,” she said.
John Robitaille, vice president of the Wyoming Petroleum Association, said the association supported the amendments “to an extent” because new reporting requirements will allow for more detail and “help us get a better handle on what's happening out in the field.” Current reporting requirements don't provide adequate information on the type and amount of natural gas that is flared and vented in Wyoming, he said.
The amendments adopt as rule the current policy that the state Oil and Gas Supervisor can authorize short-term flaring up to 180 days for volumes up to 250,000 cubic feet of gas per day, not to exceed 45 million cubic feet. The commission may approve going above those amounts.
The rules also continue to authorize flaring up to 60,000 cubic feet per day. Venting is limited to 30,000 cubic feet per day.
Monthly Reporting Requirements Set
The new reporting requirements specify that all flaring and venting be reported monthly, including a description of how the gas is metered, and that a compositional analysis of the gas be submitted biannually.
Robitaille said association findings based on 2014 observations determined that only about 0.26 percent of all gas produced in Wyoming was lost to venting or flaring. “Ninety percent was sold, just under 10 percent was used on the lease, and the remaining 0.26 percent was vented or flared,” he said. “It's a miniscule amount.”
Wilson said that number was misleading. “By including the total gas production, the gas produced volume is far inflated, creating a conveniently small percentage for their message,” she said. If the industry association “wanted a more accurate representation of flared gas versus gas produced, they should compare flared and vented gas only to the total volume of associated gas.”
Wilson said she hopes the commission will “take another look at this rule” and improve the venting component in the next year or so after the amendment has yielded new information.
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Power Plant Rule In Limbo, Obama Faces More Pressure To Crack Down On Oil And Gas
Feb 10, 2016 | PoliticoPro
By Elana Schor
With the centerpiece of his climate agenda suddenly stalled, President Barack Obama is facing stepped-up pressure to crack down on oil and gas companies while he still can.
Now that the Supreme Court has put EPA's carbon rules for power plants on hold, at least for Obama's final year in office, some greens say the president must look beyond coal-reliant utilities to lock in emissions reductions before he leaves. The biggest step Obama could take, they say, is to follow-up on his coal leasing moratorium by preventing any new oil-and-gas drilling on federal lands or offshore.
"I'm more concerned with the amount of carbon pouring into the atmosphere than the president's climate legacy, but in either case: keeping fossil fuels in the ground is crucial, and even an ideological and out-of-touch Supreme Court can't stand in his way if he simply says no to new extraction," 350.org co-founder Bill McKibben, godfather of the successful anti-Keystone XL environmental campaign, said by email.
Administration critics also fear the Supreme Court's temporary reprieve for coal could motivate a tougher crackdown on the country's other top two fossil fuels.
"I expect now he’s, on the one hand, probably got a little extra capacity to aim at oil and gas since the Clean Power Plan's been taken off his plate — plus he's going to have a little extra incentive to spend what little political capital he has left going after other fossil fuels," said Rep. Kevin Cramer (R-N.D.).
Obama has no shortage of mechanisms to squeeze emissions out of the oil-and-gas sector to make up for a potential loss of the Clean Power Plan.
EPA is working on a final plan to slash the industry's methane emissions that Democrats are already fighting to expand to all sources of the greenhouse gas, not just new ones, and the Interior Department is working on its own methane curbs for drilling on public lands.
Interior's recent halt to new coal leasing on federal property has many greens and even some industry players bracing for a similar move to stop government oil and gas leases — which would amount to a huge victory to the "keep it in the ground" movement powering Bernie Sanders to popularity in the Democratic presidential race.
Within the next few weeks, Interior also is expected to release new details about its plans for the next five years of offshore drilling leases, and it remains to be seen whether the administration will heed greens' calls to jettison proposed Atlantic and Arctic sales from the plan. Later this spring, 350.org is planning a week of demonstration against new fossil-fuel projects on land and offshore alike.
Rep. Charles Boustany (R-La.) said in an interview that he is concerned the Obama administration would react to the Supreme Court's move by sharpening its regulatory knives for the oil-and-gas industry, "and we’re going to stay very vigilant on this, because his record is one that’s been very hostile to oil and gas."
Even before the Supreme Court yanked the gold star from Obama's climate report card, drillers and their allies in Congress complained the administration was asking too much of their industry, especially given that natural gas produces vastly less carbon than coal when burned for electricity.
"What more can you put on the table?" asked Marty Durbin, director of market development at the American Petroleum Institute. Still, he acknowledged at a press conference Wednesday that the administration may "want to push" other regulations harder since they're "not going to have [the Clean Power Plan] to check the box on by the time [they] leave."
The White House, for its part, cites oil and gas as one of several fronts where its climate action will continue apace despite the temporary loss of the EPA's rules, which it is confident will ultimately be upheld by the Supreme Court.
"We’re going to continue to take aggressive steps to reduce greenhouse gas emissions," Obama spokesman Eric Schultz told reporters aboard Air Force One on Wednesday, highlighting fuel standards for vehicles and airplanes among other examples.
Not every opponent of oil and gas sees the Supreme Court move casting a brighter spotlight on Obama's final plans for oil and gas. David Goldston, government affairs director at the Natural Resources Defense Council, said the administration should already have been considering limiting offshore development.
"Were they thinking before that 'we don’t have to worry about Atlantic and Arctic drilling, because of the Clean Power Plan in place?'" he asked. "I don’t think so."
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Clean Power Plan Stay Halts Some State Planning
Feb 11, 2016 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court's decision to halt implementation of the Clean Power Plan should put the brakes on state efforts to develop compliance strategies for the rule, attorneys general fighting the carbon dioxide standards said.
“The whole point of the stay is to stop us from having to provide any implementation plan. We're not moving forward with anything until this case is resolved,” Texas Attorney General Ken Paxton told reporters Feb. 10.
Some states, particularly Alabama, have already said they will stop the planning to comply with the Environmental Protection Agency's rule until the litigation is resolved. However, some states such as Colorado said the planning will continue in the event the Clean Power Plan is ultimately upheld so they won't be at a disadvantage later.
“There has been such extensive momentum and inertia built up over the past two years that it would be an absolute shame to bring those efforts to a halt,” Bill Becker, executive director of the National Association of Clean Air Agencies, told Bloomberg BNA Feb. 10.
West Virginia Attorney General Patrick Morrisey, who joined with Paxton in leading 29 states and state agencies in their bid to block implementation of the Clean Power Plan, said the Supreme Court's decision suggests the EPA's carbon dioxide standards for power plants are in significant legal jeopardy and states should refrain from spending time and resources readying their compliance plans until that is resolved.
“This stay is a strong signal the Supreme Court has serious concerns about the legality of the power plan,” Morrisey said. “We doubt the Supreme Court would have taken such unprecedented action if they didn't have significant concerns about the power plan.”
The Supreme Court Feb. 9 issued a 5-4 decision staying the carbon dioxide standards for power plants (RIN 2060-AR33), which are the centerpiece of President Barack Obama's domestic efforts to tackle climate change (West Virginia v. EPA, U.S., No. 15A773, order issued 2/9/16; 27 DEN A-1, 2/10/16).
Despite the stay, Jonas Monast, director of the Climate and Energy Program at Duke University's Nicholas Institute for Environmental Policy Solutions, said, “many states will continue to explore their options so they are prepared in the event the Clean Power Plan survives the court challenges.”
“A decision overturning the Clean Power Plan would not prevent the EPA from regulating greenhouse gas emissions under the Clean Air Act,” he told Bloomberg BNA in an e-mail. “This case focuses on the EPA's current regulations. It does not call into question the Supreme Court's previous finding that greenhouse gases are pollutants under the Clean Air Act.”
Regardless of how states may feel about the Clean Power Plan, the Supreme Court's stay order gives air pollution regulators a needed respite as they implement other EPA programs including new ozone standards, Clint Woods, executive director of the Association of Air Pollution Control Agencies, told Bloomberg BNA Feb. 10.
“It's fair to say that many, and even most, states are breathing a bit of a sigh of relief in terms of the workload they'll be undertaking this year and the next couple of years,” Woods said.
Some States Halt Efforts
Alabama has already moved to cancel stakeholder meetings it had scheduled with utilities and environmental groups. Alabama said that the Supreme Court's stay decision reaffirms the state's strategy to delay drafting a compliance plan until the federal litigation is resolved.
“We know it's going to be at least a year, maybe longer, before [the federal rule] moves forward,” Ron Gore, air division chief for Alabama's Department of Environmental Management, told Bloomberg BNA on Feb. 10. “It's just moot for the time being.”
Gore had told Bloomberg BNA in January that the state was delaying serious efforts to draft a state plan until mid to late spring, in the hopes that a federal court would stay the rule (06 DEN A-4, 1/11/16).
The Alabama department also had filed an affidavit in the federal litigation, raising concerns that it was being required to expend the department's time and money on compliance efforts without any federal funding for that purpose, Gore added.
Ohio EPA Director Craig Butler also said that state will stop to reconsider how the Supreme Court's decision impacts its plans.
“By staying U.S. EPA's Clean Power Plan, the Supreme Court got it right,” Butler said in a Feb. 10 statement. “The state of Ohio has pointed out the serious legal shortcomings of the federal Clean Power Plan on numerous occasions. We will evaluate the decision and determine how it will impact our plans moving forward.”
The Michigan Agency for Energy also announced that it will evaluate the stay decision before determining how to proceed.
Other States Forge On
Despite the court's stay order some states said they will continue to assess their compliance options in the event the rule is ultimately upheld.
The Colorado Department of Public Health and Environment said it will continue with its work on its state plan to implement the Clean Power Plan despite the Supreme Court's stay.
“It is prudent for Colorado to move forward during the litigation to ensure that the state is not left at a disadvantage if the courts uphold all or part of the Clean Power Plan,” the department said in a Feb. 10 statement. “Because the Supreme Court did not say whether the stay would change the rule's compliance deadlines, Colorado could lose valuable time if it delays its work on the state plan and the rule is ultimately upheld.”
California, which has the nation's only economy-wide emissions trading program as part of the Global Warming Solutions Act of 2006 (A.B. 32), said it will continue to pursue its greenhouse gas emissions reductions regardless of the Clean Power Plan's fate.
“The Supreme Court's narrowly procedural ruling may create some temporary confusion, but we are confident that the Clean Power Plan will prevail. California will not slow down our drive for clean air, renewable energy, and the good jobs that come from investing in green technologies,” Mary D. Nichols, chairwoman of the California Air Resources Board, said in a Feb. 10 statement.
Though Louisiana's Attorney General Jeff Landry had joined the Supreme Court petition seeking to stay the Clean Power Plan, the state Department of Environmental Quality will continue with its stakeholder outreach as it readies an initial compliance plan, an agency spokesman told Bloomberg BNA.
RGGI States Well Poised
The Supreme Court decision is not expected to have a significant impact on the nine Regional Greenhouse Gas Initiative (RGGI) states because they are already limiting carbon emissions and are on track to meet the Clean Power Plan's requirements with some relatively minor changes to their program, according to sources interviewed by Bloomberg BNA.
Massachusetts said the state is already poised to achieve its carbon dioxide targets should the EPA's rule survive judicial scrutiny.
“Based on our review, the Commonwealth, as part of the nine-state Regional Greenhouse Gas Initiative (RGGI), is well positioned to meet the goals of the federal Clean Power Plan,” a spokeswoman for the Massachusetts Executive Office of Energy and Environmental Affairs told Bloomberg BNA in an e-mail.
“The nine northeastern states showed great foresight and leadership in establishing the RGGI program years before the Clean Power Plan was issued and under each state's legal authority,” Kenneth Kimmell, president of the Union of Concerned Scientists, told Bloomberg BNA in an e-mail.
“The fact that the EPA rule is temporarily on hold is no reason for the RGGI states to change course,” he said. “In fact, their leadership is needed now more than ever.”
Jordan Stutt, a policy analyst at the Boston-based Acadia Center, said RGGI planned to undertake a program review before the Clean Power Plan was released and the court decision should have little impact on that process, even though compliance with the Clean Power Plan is one of the main issues being addressed in the review (22 DEN A-9, 2/3/16).
“The RGGI states have shown tremendous leadership in the absence of federal regulation before, initiating the nation's first carbon trading program and demonstrating that this approach can reduce emissions while creating benefits for ratepayers, public health, and state economies,” he told Bloomberg BNA in an e-mail. “The RGGI states are poised to continue this leadership through the 2016 program review by strengthening the program and paving the way for other states that are ready to act on climate.”
Jennifer A. Smokelin, an attorney in the Pittsburgh office of the firm Reed Smith LLP, said most RGGI states will meet or come close to meeting the Clean Power Plan's mass-based goals by 2020.
“Any delay in implementing the Clean Power Plan, or even not implementing the Clean Power Plan at all, should not affect them performance-wise,” she told Bloomberg BNA in an e-mail. “Procedurally, the RGGI scheduled program review for 2016 may not now completely encompass compliance with the Clean Power Plan, but there will be other updates to RGGI.”
With assistance from Tripp Baltz in Denver, Nushin Huq in Houston, Martha Kessler in Boston, Chris Marr in Atlanta, Bebe Raupe in Cincinnati, Gerald B. Silverman in Albany and Carolyn Whetzel in Los Angeles.
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Feb 10, 2016 | PoliticoPro
By Josh Gerstein
President Barack Obama's drive to cement his legacy in the waning years of his administration has run into a formidable obstacle: The Supreme Court.
The court's surprise move on Tuesday against Obama's effort to control climate change poses a more serious threat to his legacy than any other legal challenge before the justices, including the pending case over his efforts to overhaul U.S. immigration policy.
While the immigration challenge is likely to be resolved definitively by June and could permit Obama to launch a dramatic expansion of protections and benefits for millions of illegal immigrants, the administration's attempt to regulate carbon emissions by power plants is now virtually certain to be officially suspended and in a state of legal limbo by the time Obama leaves office next January.
The fact that the court's 5-4 decision to halt implementation of the regulations came in a ruling that attracted the vote of swing justice Anthony Kennedy was an ominous sign for the administration and environmentalists, experts said.
In 2007, Kennedy authored the court's 5-4 decision requiring the Environmental Protection Agency to regulate carbon dioxide as a pollutant. Now, he seems skeptical that the means the Obama Administration chose to do that was a legally valid one.
"You have to be worrying, [in the White House] that you’ve lost Justice Kennedy at this point," said Brendan Collins, an environmental law attorney with the firm of Ballard Spahr.
"The lines are pretty clearly drawn," added University of Richmond law professor Carl Tobias, noting that all four of the court's Democratic appointees dissented from the court's action.
Another reason for concern at the White House: the stay the justices issued was so unusual that many lawyers were nearly certain it would be denied. Attorneys inside and outside the administration said they were aware of no other case where the Supreme Court blocked enforcement of a regulation that had yet to be ruled on on the merits by a lower court.
"That's pretty shocking stuff. It is without any exaggeration and in the very literal sense of the term, unprecedented," Collins said.In a similarly unusual nighttime conference call with reporters Tuesday, the White House sought to downplay the development as a "temporary procedural determination," but the caustic tone toward the court from some of the White House's closest allies betrayed a deeper worry about the justices' action.
"I deeply deplore what I believe will ultimately come to be seen as an infamous political action by the five Republican appointees on the Supreme Court,” Sen. Sheldon Whitehouse (D-RI.) said in a statement late Tuesday.
Senate Minority Leader Harry Reid (D-Nev.) expressed his “amazement” at the court’s move and called it “especially stunning,” while predicting that the administration’s rules will ultimately prevail.
“This short-sighted decision by the Court’s five conservative justices is an unfortunate setback. It unnecessarily puts into question the major part of our country’s efforts to address climate change and protect our environment,” Reid said in a speech on the Senate floor Wednesday.
House Speaker Paul Ryan hailed the court's action as a step toward dismantling Obama's climate policy and thwarting its impact on coal country.
"This ruling is a victory for the American people and our economy," Ryan said. "President Obama’s attempt to remake the country's entire energy sector to further his own climate agenda is more than costly, it’s unlawful. This rule should be struck down permanently before coal country is destroyed completely, and American consumers are consigned to higher energy prices."
White House spokesman Eric Schultz pushed back Wednesday against suggestions that the administration's Clean Power rule is in trouble and officials may need a Plan B to make the reductions in emissions necessary to satisfy the international agreement signed by Obama in Paris last year.
"I’m familiar with Plan B questions because they were often asked to us in the context of the Supreme Court ruling on the Affordable Care Act. The Supreme Court upheld the Affordable Care Act several times now. So, we remain confident that when this [climate rule] is given its day in court, it’s going to be upheld on the merits," Schultz said.In 2012, the Supreme Court upheld the individual mandate in Obamacare, 5-4, and last year it voted 6-3 to uphold the authority of the federal government to issue subsidies for health insurance nationwide. However, the justices voted 7-2 to reject another feature of Obamacare: an attempt to coerce states into expanding Medicaid by taking away all Medicaid funding if they did not. The high court also upheld the right of closely held for-profit companies to opt out of some Obamacare coverage on religious grounds.
A senior administration official who spoke to reporters on condition of anonymity Tuesday night acknowledged that the regulations for coal-fired electric plants at issue in the Supreme Court case are "the signature initiative of the administration."
However, that official and others stressed that the power plant regulations in play in the case are just a part of the administration's broader set of policies designed to reduce U.S. carbon emissions and put the country on a path to achieving targets agreed to by Obama at a global climate conference in Paris in December.
"The Clean Power Plan is only one part of this administration’s initiatives to transform the energy economy in our country," Schultz said. "We’re going to continue to take aggressive steps to reduce greenhouse gas emissions. For example, that includes pursuing a broad range of policies to reduce emissions from cars and trucks from the oil and gas sector, aircraft, and increase energy standards."
Administration officials also noted that the power plant rules were intended to roll out over a period of years, so the delay resulting from the high court's stay would have a limited impact. And they argued that tax credits Congress re-authorized in the recent spending bill would help achieve the administration's climate goals.
"It is our estimation that the inclusion of those tax credits is going to have more impact over the short term than the Clean Power Plan," Schultz said.
Some experts also said a future president could find other ways to target the utility industry even if the Obama EPA plan is rejected. But others stressed it would be hard for the administration to make major reductions in greenhouse gas emissions without going after power plants in some fashion.
"The problem for the administration is the electric power sector produces something on the order of 40 percent of emissions.....The return on government regulation [of other sectors] is nowhere near as potent as regulation of the electric sector," Collins said.
The administration's Clean Power plan is currently before the D.C. Circuit, which is expected to hold arguments on the issue in June and to rule in two or three months thereafter. But the reuslt of the stay the justices granted Tuesday is that even if the administration initially prevails there, utility and fossil fuel interests could drag out consideration by asking the full bench of the D.C. Circuit to rehear the case. That would likely push final appeals court action until the end of this year or even into 2017.
"The administration has always known that implementation of all of this is going to be long out of its hands [but] before, at least [Obama] could have gone to bed with a win in the D.C. Circuit that wasn't tainted by this brooding coda at the Supreme Court," Collins said."I just don't see how anything can happen during his administration," Tobias added.
By contrast, if the court greenlights Obama's immigration plan in June, it could be up and running within a couple of months. Some applicants might have been turned off by the year-plus delay during the legal fight, but most are expected to apply anyway in order to try to get work permits before Obama leaves office. The hiatus ordered by lower courts could wind up as little more than an unpleasant memory for Obama and his aides.
One side effect of the partisan split in the court's stay order on the climate rules Tuesday is that it could provide fodder for the presidential contest. As the election approaches in November, environmental groups and Democrats will be able to argue that the authority for environmental regulation is hanging by the slenderest of margins in the Supreme Court and that Americans need a president whose nominees will endorse such rules.
The differences between the Democratic and Republican presidential field on climate regulation issues already offer voters a stark choice on the issue, but the specter of a looming Supreme Court might provide an extra impetus for some voters.
Climate change activist and donor Tom Steyer previewed that argument Tuesday night as he reacted to the justices' unexpected move, saying: "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."
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Supreme Court Climate Fight Shakes Up Senate Races
Feb 10, 2016 | The Hill - E2 Wire
By Timothy Cama and Devin Henry
The Supreme Court’s halting of the Obama administration’s chief climate rule is a new spark in the race for the Senate.
Democrats and greens, who have long hoped to make climate change a flashpoint in November’s elections, say the court’s 5-4 stay order putting a hold on the Environmental Protection Agency’s (EPA) Clean Power Plan gives them a chance to make a strong case to voters in their push to win back the Senate this fall.Republicans and energy industry strategists say they’re equally enthusiastic to use the case — which hinges on whether the Obama administration exerted too much authority over carbon emissions — to make a point about executive overreach and its support among Democrats.
The Senate is especially important for climate regulations. If the Supreme Court blocks the rule — a prospect for which opponents are bullish after the stay order — legislation would likely be the only way to go about instituting a carbon reduction plan.
Democrats running in key Senate races next year said they were angered by the Court’s decision to preempt the rule this early.
Katie McGinty and Joe Sestak, two Democrats hoping to unseat Sen. Pat Toomey (R-Pa.), said they were disappointed with the decision.
“This rule is a legally sound, pragmatic strategy to cut emissions while fostering clean energy innovation and job growth,” McGinty said in a statement.
Sestak called the action “a disappointing development that will put the health of millions of Pennsylvanians at risk and hamper our nation’s ability to combat climate change.”
Toomey opposes the rule and voted with nearly all of his Republican colleagues to overturn it.
In climate-susceptible Florida, Senate candidate Rep. Patrick Murphy (D) said, “To me, this issue is personal.”
“The Supreme Court's misguided decision to block the Clean Power Plan is an attack on Florida's environment and our economy. I will not stop fighting for the millions of Floridians whose livelihood depends on reducing carbon pollution and acting on climate change.”
Most Republicans, in responding to the stay order, have said it validates their concerns about over-regulation from the Obama administration, a theme that will develop in Senate races around the country.
A spokesman for Sen. Ron Johnson (R-Wis.) said he “supports a balanced approach to keeping energy prices competitive and our environment clean, and getting Washington out of the way of robust private sector growth. He’ll remain skeptical of policies designed to artificially drive up the cost of power and weaken our economy.”
But some Republicans in marquee Senate races have moderate positions on the climate rule, where the stay is already becoming a contentious issue.
Vulnerable Sens. Mark Kirk (Ill.) and Kelly Ayotte (N.H.) sided with Democrats in supporting the rule when lawmakers voted on a resolution against it last fall.
Kirk spokesman Kevin Artl declined to comment specifically on the judicial stay Wednesday, instead highlighting his environmental qualifications.
“Sen. Kirk is an independent leader in the Senate on protecting the environment and his support for initiatives to clean the Great Lakes along with efforts to reduce pollution like the Clean Power Plan further demonstrate his commitment to clean air and water for generations to come,” Artl said.
His Democratic opponent, Rep. Tammy Duckworth called the decision “unfortunate,” and said it only reinforces the need to elect her over Kirk.
She said in a statement that Kirk “talks a good game on the environment, but unfortunately votes consistently with polluters and energy corporations.”
In a statement, Ayotte said that, despite the stay order, “it does not eliminate the need to address climate change and protect New Hampshire’s environment.”
A spokesman for Ayotte’s opponent, Gov. Maggie Hassan, tied the stay to the senator’s opposition to “congressional efforts to pass legislation that would reduce greenhouse gas emissions and combat climate change,” and votes to “protect tax breaks for Big Oil.”
“Governor Hassan has been a strong supporter of the Clean Power Plan and has urged our congressional delegation to do everything in their power to support it,” spokesman Aaron Jacobs said.
Philip Wallach, a senior fellow at the Brookings Institution, said that depending on the race, both Democrats and Republican may feel that the high court’s decision could benefit them.
“It definitely makes it easier make the existential case for Democrats, to the extent that they want to bring up climate change as something they think is going to be a winning issue for them,” Wallach said, adding that Democrats could argue that if the rule is overturned, they’d need to get a Senate majority if there’s any chance of legislation to fight climate change.
For Republicans, the stay could boost their arguments that Obama is overreaching and making energy more expensive, Wallach said.
“I think it’s a winning issue in a regional sense for some places, the sense that they’re the ones fighting and pushing back against this EPA overreach, and are going to protect communities that have some dependence on coal,” he said.
But Frank Maisano, an energy specialist at the law and lobbying firm Bracewell, was doubtful that any development with the climate rule could change the fact that climate change consistently ranks low in voters’ priorities.
“This tends to relegate to a lower position on the spectrum,” he said. “In the grand scheme of a political campaign, this is probably not going to be a factor.”
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Power Plan Stay Could Prompt More Supreme Court Petitions
Feb 11, 2016 | BNA Daily Environment Report
By Andrew Childers and Anthony Adragna
The U.S. Supreme Court's unprecedented decision to stay the Clean Power Plan even before an appellate court heard arguments in the case could prompt more calls for early intervention from the nation's highest court in the future, attorneys said.
The lack of reasoning in the justices' order makes it difficult to forecast how much of an impact that early intervention will have, the attorneys told Bloomberg BNA Feb. 10.
“I can think of no other parallels offhand,” Harvard law professor Richard J. Lazarus told Bloomberg BNA Feb. 10. “The only time I've seen the court do something like this would be a death penalty case. Maybe they're viewing this as the functional equivalent of the death penalty.”
Lazarus represents past Environmental Protection Agency administrators who have sided with the agency in litigation over the rule.
“To step in and stop a government action is in itself a significant action,” Lisa Heinzerling, a law professor at Georgetown University, said at a a Feb. 10 forum sponsored by the American Constitution Society for Law and Policy. “We don't know what question the court was answering. That makes this quite unusual.”
Key Litigation Dates
• Feb. 19: Petitioner briefs due.
• Feb. 23: Briefs from intervenors and amici supporting petitioners due.
• March 28: The EPA's brief due.
• March 29: The EPA's intervenors' briefs due.
• April 1: Briefs from amici in support of the EPA due.
• April 15: Petitioner reply briefs due.
• June 2: Argument is scheduled to begin.
The Supreme Court on Feb. 9 issued a 5-4 decision staying the EPA's carbon dioxide standards for power plants (RIN 2060-AR33) until the rule can be fully litigated (West Virginia v. EPA, U.S., No. 15A773, order issued 2/9/16; 27 DEN A-1, 2/10/16).
“I think everybody in this case recognized the Supreme Court intervention here would be extraordinary,” Thomas Lorenzen, a partner at Crowell & Moring LLP who represents the National Rural Electric Cooperative Association in the litigation, told Bloomberg BNA Feb. 10. “The fact that they did intervene indicates five justices do think this is an extraordinary case.”
Justices Already Skeptical
A significant factor in winning a stay in this instance may have been recognizing that enough justices on the Supreme Court already had cautioned the EPA about reading its Clean Air Act authorities too broadly, Jim Rubin, a partner at Dorsey &Whitney LLP who isn't involved in the litigation, told Bloomberg BNA Feb. 10.
“I think the petitioners had the sense that this court would be hostile to this rule based on what the court said in the [Mercury and Air Toxics Standards] rule and the [greenhouse gas tailoring rule] case,” he said.
In a 2014 decision limiting the scope of the EPA's greenhouse gas permitting program, Justice Antonin Scalia said that “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy' … we typically greet its announcement with a measure of skepticism” (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (2014)).
Scope May Be Key
Although future litigants inevitably will attempt to prompt early action from the Supreme Court, attorneys said the scope of the Clean Power Plan, which reaches across the U.S. economy, may be the key difference that prompted the court to act.
Roger Martella, a partner at Sidley Austin LLP who represents the Chamber of Commerce and other industry groups in litigation over the Clean Power Plan, said U.S. courts had consistently shown they take the threat of climate change seriously but are “less willing” to permit regulatory actions with economywide implications.
“We don't know why the court granted the stay,” Martella, who was the EPA general counsel during the Bush administration, said at the American Constitution Society for Law and Policy event. “I think it's fair to recognize just reading the case law that we would anticipate the Supreme Court would approach the Clean Power Plan with some skepticism.”
The fact that the EPA faced opposition from a majority of states could have weighed in the petitioners' favor as well, Rubin said.
“There is context,” Rubin said. “This is 27 states alleging massive irreparable harm and a very controversial issue with national impact.”
Few Administrative Rules Rise to National Scope
Very few administrative rules—attorneys cited the Clean Power Plan and health care reform as examples—rise to such a national scope, which could limit future attempts to prod the Supreme Court into early action.
“This is obviously a somewhat unusual situation with the size and scope and politicization,” Brian Potts, a partner at Foley Lardner LLP who isn't involved in the litigation, told Bloomberg BNA Feb. 10. “I think it will definitely cause more people to file more stay requests, but I'm not sure it will cause the D.C. Circuit to issue more stays.”
The EPA told Bloomberg BNA Feb. 9 that it believes strongly in the rule. “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. “Millions of people are demanding we confront the risks posed by climate change. And we will do just that.”
Stay Looms Over Argument
Although the U.S. Court of Appeals for the District of Columbia Circuit had denied petitions to stay the rule, it did set an expedited briefing schedule that will have the case argued June 2, with additional argument possible June 3 (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16).
Argument will be heard by Judges Karen LeCraft Henderson, Judith Rogers and Sri Srinivasan.
“EPA's got a pro-EPA panel, but the Supreme Court has pretty much said what they think here,” Potts said.
The fact that the Supreme Court has already weighed in will be a significant factor when the case goes to argument and could weigh on the three judges hearing the case knowing their decision will be scrutinized by skeptical justices.
“They will be thinking about that as they read the briefs and hear argument and ask questions and as they write their opinion or opinions,” Lorenzen said. “They're going to be thinking about the ultimate audience here, which is the nine justices.”
Blocking the regulation before the D.C. Circuit heard arguments was an “extraordinary and unusual step” and marked an attempt by the Supreme Court to “put its thumb on the scale,” Richard Ayres of Ayres Law Group LLP, who represents several of the intervenors in the ongoing litigation, said at the forum.
Mercury Rule May Have Tipped Judges
Recent litigation over the EPA's toxic pollution standards for power plants also may have weighed in the petitioners' favor when the Supreme Court considered the stay requests, attorneys said.
States and utilities opposed to the Clean Power Plan had pressed the similarity between the carbon dioxide standards and the EPA's Mercury and Air Toxics Standards for power plants in their arguments in favor of a stay (25 DEN A-2, 2/8/16).
In that case, the Supreme Court ultimately found the EPA had erred when it failed to consider compliance costs as part of its determination that it was appropriate and necessary to regulate toxic pollutants from power plants as part of the Mercury and Air Toxics Standards.
Although the rule eventually was remanded to the EPA for correction, utilities already had made the investment in new pollution controls or closed aging coal-fired power plants before litigation was concluded (Michigan v. EPA, 135 S. Ct. 269, 80 ERC 1577, 2015 BL 207163 (2015)).
States Would Face Planning, Investments
States and utilities had argued that even though the Clean Power Plan's first emissions reductions aren't mandated until 2022, the rule requires extensive planning and investments to be made now, which would be undone if the rule ultimately is overturned.
“Harm was happening right now in West Virginia, and we believe there's a very real likelihood of success on the merits, and we know five justices agree with that,” West Virginia Attorney General Patrick Morrisey (R) told reporters Feb. 10.
Joanne Spalding, a senior managing attorney at the Sierra Club, told Bloomberg BNA Feb. 9 that she doesn't think the comparison is accurate because the Clean Power Plan gives states and utilities a much longer window to prepare than the toxic pollutant limits did.
“It's not really a fair comparison. First of all, nobody ever asked for a stay of the MATS rule,” she said. “In addition to that, the compliance timeline for that was much shorter. In this case, the regulated sources don't even have to start complying [until] 2022.”
Supreme Court Didn't Give Reason
Although the Supreme Court didn't detail its reasons for granting the stay, that consideration could have contributed to its decision.
“That might at the margin have made the justices go, ‘Huh, maybe we should think about these things,' ” Lazarus said.
Lorenzen said public statements made by the EPA after the Supreme Court's MATS decision touting that the pollution controls already were installed also may have factored into the justices' reasoning.
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Why The Surprise Supreme Court Decision Won't Thwart The Clean Power Plan
Feb 10, 2016 | Environmental Defense Fund
By Keith Gaby
In a surprise procedural decision yesterday, the U.S. Supreme Court put the Obama administration’s Clean Power Plan on pause while a lower court reviews it.
The Court did not weigh in on the merits of the Environmental Protection Agency’s plan, and didn’t explain its reasoning, so we don’t know the legal basis for this unusual decision.
But we do know that the court has repeatedly upheld the EPA’s power – in fact, its responsibility – to limit climate pollution under the Clean Air Act. And we know the EPA was extremely careful to put the Clean Power Plan on solid legal and scientific footing. So we remain confident about any decision on the substantive merits of the plan.
This is why states should stay on course and continue to invest in cleaner energy sources. The bigger trend toward clean energy is clear.
Clinging to the past is bad policyA lower court, the D.C. Court of Appeals, will continue its review of the Clean Power Plan, with a hearing expected to be held in June.
Because of the Supreme Court’s action yesterday, the EPA can’t require states to move forward with their planning until the issue is settled. But the reality is that many states and power companies will continue to plan for the clean energy future they all know is coming.
In fact, it would be irresponsible to delay the transition away from dirty fossil fuels with the expectation that the Supreme Court will reverse its consistent endorsement of the EPA’s duty to limit emissions. It’s also not what citizens expect from their leaders.
And companies that cling to 19th-century fuels and 20th-century business plans aren’t doing their stockholders any good.
Yesterday’s ruling was a setback, and it creates uncertainty that could slow progress in some states when we need to be accelerating the transformation to clean energy.
But it’s also telling that several states, including Virginia, Colorado and California, have already said they will stay the course.
The Clean Power Plan, which helped inspire China’s recent actions on climate change and the 190-nation climate agreement in Paris, should move forward because it has the facts, law and science on its side.
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EPA's Regulatory Options Unfold After Power Plan Stay
Feb 11, 2016 | BNA Daily Environment Report
By Andrew Childers
The U.S. Supreme Court's unexpected decision to halt the Environmental Protection Agency's Clean Power Plan could revive debate over whether other provisions of the Clean Air Act are better suited to curbing greenhouse gas emissions.
Rather than attempting to regulate greenhouse gas emissions on a sector-by-sector basis, the EPA could achieve quicker and more cost-effective emissions reductions using its authority under the obscure Section 115 of the Clean Air Act, which covers international air pollution, legal scholars and some industry attorneys have argued. The Supreme Court on Feb. 9 stayed the Clean Power Plan (RIN 2060-AR33), which set carbon dioxide limits for the power sector in each state, suggesting the rule is in danger of being overturned, and Section 115 could provide a viable alternative, attorneys say.
“The language is pretty broad and much clearer than what they're doing now,” Brian Potts, a partner at Foley & Lardner LLP, told Bloomberg BNA Feb. 10. Potts argued in favor of pursuing greenhouse gas regulations under Section 115 in a recent Politico column.
Under Section 115, the EPA can require states to take steps to reduce air pollution emissions that cross international borders provided other countries are taking reciprocal action. Advocates of the approach argue the reciprocity trigger is met by the international agreement on climate change reached in Paris in December 2015. Additionally, states would be free to pursue greenhouse gas emission reductions from a variety of industrial and transportation sectors quickly, rather than the EPA's approach under the Clean Power Plan of regulating each industrial sector individually.
The EPA previously said it is not considering using its Section 115 authority, preferring instead to focus on the Clean Power Plan. However, the Supreme Court has stayed implementation of that rule until it has been fully litigated, which means the required carbon dioxide reductions from the power sector will be delayed by years even if the rule survives judicial scrutiny (West Virginia v. EPA, U.S., No. 15A773, order issued 2/9/16; 27 DEN A-1, 2/10/16).
A Chance for ‘Comprehensive' Regulations
The same argument was made in a recent report on the EPA's Section 115 authority by several legal scholars from the Sabin Center for Climate Change Law at Columbia Law School, the Center on Global Energy Policy at the Columbia University School of International and Public Affairs, the Institute for Policy Integrity at New York University School of Law, and the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles School of Law (10 DEN A-1, 1/15/16).
Jessica Wentz, associate director of the Sabin Center, said the Supreme Court's decision could put the spotlight back on the EPA's Section 115 authorities. “And it can be used to create an even more comprehensive regulatory program to control [greenhouse gas] emissions in the United States,” she told Bloomberg BNA in an e-mail Feb. 10.
Industry Also Sees Benefits
Industry attorneys also have argued the EPA's Section 115 authorities would be preferable and less burdensome for regulating greenhouse gases than sector-by-sector regulations or the complicated permitting process. Roger Martella, a partner at Sidley Austin LLP, and Matt Paulson, now a partner at Bracewell LLP, argued in a 2009 article for Bloomberg BNA that Section 115 presented a better avenue for addressing a global pollutant such as greenhouse gases than other Clean Air Act programs (43 DEN B-1, 3/9/09).
The discussion came as the EPA took its first steps toward regulating greenhouse gases through permitting requirements and emissions limits for passenger vehicles. The EPA attempted to use its Section 115 authority to regulate ozone-depleting substances, but Congress intervened, leading to the adoption of the Montreal Protocol requirements.
“Section 115 is the only provision of the act currently available that expressly addresses international air pollution and potentially could be effective to address the reduction of greenhouse gas emissions,” they argued. “Admittedly, to date Section 115 has not been used by EPA to regulate U.S.-based emissions that are connected to international air pollution. However, this is only because each time its use was considered previously, Congress enacted specific legislation to address the international pollution at issue.”
Moment May Have Passed
However, Paulson now says Section 115 standards may face the same challenges as the Clean Power Plan after the Supreme Court cautioned the EPA against searching out new regulatory powers in long-existing statutes.
In a 2014 decision limiting the scope of the EPA's greenhouse gas permitting program, Justice Antonin Scalia said that “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy' … we typically greet its announcement with a measure of skepticism” (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (2014)).
That same language has been used by opponents of the Clean Power Plan to attack the EPA's carbon dioxide standards, issued under Section 111(d) of the Clean Air Act.
“That's the bigger impediment, and UARG is a problem,” Paulson told Bloomberg BNA Feb. 10. “Back in 2009, had they gone down this path, that would have been different.”
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After Stay, Chief EPA Critic Urges 'All States' To Stop Work On ESPS Plans
Feb 10, 2016 | InsideEPA
By Lee Logan
Leading state opponents of EPA's greenhouse gas (GHG) standards for existing power plants say the Supreme Court's decision to stay the rule pending the outcome of legal challenges should spur other states to “put down your pencils” and halt work on any compliance activities, though it is far from clear that the agency's supporters will do so.
West Virginia Attorney General (AG) Patrick Morrisey (R), who is leading the multi-state coalition challenging the rule, said in a Feb. 10 press call that not only does the high court's Feb. 9 order freeze any requirement for states to submit compliance plans, but also “there is no legal process to institute formal state plan submissions.”
Further, he projected confidence that the high court would ultimately reject EPA's existing source performance standards (ESPS) on the merits, given that judicial stays are reviewed under a four-part test that includes whether challengers are likely to succeed on their claims.
“We recognize the stay is not the final say on this matter,” he said. “But it's much better to be in a position where the court [says] you have a likelihood of success [on the merits] than in the other position.”
Given his confidence, Morrisey urged “all states” to stop work on ESPS efforts as the litigation proceeds.
“I don't know that it's productive to spend much time talking about a rule that will never be upheld,” he said. “If there's a strong sense that this rule will ultimately never see the light of day, starting to plan around something that's illegal doesn't seem to be a good use of resources.”
Joining Morrisey on the press call was Texas AG Ken Paxton (R), who said the whole purpose of his state joining the request for a stay was so it did not have to submit a compliance plan. The Lone Star State is “not moving forward with anything until this case is resolved,” he said.
Many other sources, including some of the the rule's high-profile supporters, also acknowledge that the ruling is likely to halt efforts to clamp down on GHG emissions, though it is not clear whether “all” states will agree to Morrisey's call.
In a Feb. 10 statement, House Democratic Leader Nancy Pelosi (CA) suggested that states that generally support EPA's rule will continue to clamp down on emissions while those opposed to the rule will halt work. “The Supreme Court’s deeply misguided decision to stay the implementation of the Clean Power Plan will enable those states that deny climate science to slow progress in reducing the carbon pollution that threatens the health of all Americans,” she said.
In a similar vein, industry critics believe that the rule's September 2016 deadline for states to submit initial compliance plans is “effectively a dead letter,” says one source, so that deadline will either have to change or be missed.
Nevertheless, other sources say some states may continue to draft compliance plans, adding that there is nothing that prohibits them from proceeding under state law. But those states that do process “are not compelled to do so by the deadlines that were in the” rule, says a second industry source.
Others “may decide to hold back and see what the courts do,” the source adds.
Presidential Politics
Morrisey and several other sources noted that any high court review on the merits could occur as soon as 2017, after a new president is elected. If, for example, courts remand the rule to EPA, the agency could be tasked with correcting any defects the high court identifies.
“Certainly, electing a new president is going to be very important, because these decisions may fall into his lap,” Morrisey said.
Asked if the high court's move could elevate the issue of climate change in the presidential election, Morrisey said he “can't forecast how that will play out in the future.” But, he said he hopes the notion of unlawful executive actions does become a campaign issue. “This is a debate worth having,” he said. “Where do candidates stand on the rule of law? Will you try to use executive authority to do things that Congress doesn't allow you to do?”
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EPA Losses Shed Light on Supreme Court’s Blocking of Carbon Rule
Feb 10, 2016 | The Wall Street Journal
By Jess Bravin and Brent Kendall
Recent Supreme Court rulings against the Environmental Protection Agency may provide some understanding of the justices’ rare move Tuesday to temporarily freeze the Obama administration’s carbon emissions initiative while it is litigated in the courts.
Last year, the court ruled against the EPA on a rule requiring power plants to cut mercury emissions. The 5-4 decision rejected mercury emissions rules because the agency failed to consider industry costs before adopting them. The rules, however, had already gone into effect and many within the industry had already moved to comply with them.
Separately, the high court fired a warning shot at the EPA in a 2014 case that examined a different climate change initiative by the agency. There, the court chastised the EPA for seeking to expand a long-standing clean-air permitting program to include greenhouse gases—without clear congressional authorization.
The court, in a splintered opinion by Justice Antonin Scalia, did allow the EPA to require very large pollution sources to obtain permits and adopt greenhouse-gas controls when they modify an existing facility or build a new one.
Justice Scalia, however, said the agency went too far in asserting authority that it could use in the future to regulate tens of thousands of smaller emissions sources, such as shopping centers, apartment buildings and schools. “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery,” he wrote.
In another stinging passage, Justice Scalia wrote: “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.”
The EPA’s challengers believed the same sentiment could animate the new case. They may turn out to be right.
The court, with four liberals dissenting, temporarily blocked the EPA carbon dioxide emissions initiative on Tuesday.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia last month declined to block the regulation. That court will hear oral arguments in June.
The high court’s intervention was perhaps unprecedented. Observers on both sides of the case couldn’t point to another case in which the justices had ever granted a stay on a new regulation whose legality had yet to be fully evaluated by a lower court.
The mystery was heightened because the four liberal dissenters didn’t write an opinion explaining their position, something those on the losing end of an extraordinary action sometimes do. Had they done so, it might have prompted a response from the majority giving a glimpse at their reasoning.
The Supreme Court issues stays sparingly, and only when specific criteria are met. Those include a “reasonable probability” that four justices will agree to review a challenge, and a “fair prospect” that five will side with the challengers on the merits.
In addition, court precedents require finding that irreparable harm will result unless the stay is granted, and that public interest is served by the stay.
Such factors obviously are in play when the court is considering a last-minute plea from a condemned inmate. That five justices similarly found a risk of irreparable harm to states from a federal regulation that takes effect several years from now suggests the court’s majority holds little confidence in the Obama administration’s view of its own authority.
The case raises novel legal issues because the EPA issued the power plant rules under a section of the Clean Air Act that has been rarely used since it was enacted in 1970, meaning there is very little court precedent on the issue. The EPA argues the clean-air provision gave the agency flexibility to address newer pollution concerns, while challengers say Congress never gave such sweeping powers to the EPA.
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Science Committee Attacks Environmental Rules
Feb 11, 2016 | BNA Daily Environment Report
By Cheryl Bolen
Republicans on the House Science, Space and Technology Committee attacked recent Environmental Protection Agency rules on power plants and clean water that they said were exorbitantly expensive and had little benefit.
“The president's regulatory overreach will cost billions of dollars, cause financial hardship for American families and diminish the competitiveness of American employers, all with no significant benefit to climate change, public health or the economy,” said committee Chairman Lamar Smith (R-Texas).
Smith spoke at a hearing Feb. 10 on the potential for so-called midnight regulations in the final year of President Barack Obama's presidency. These are regulations submitted in the final months of an administration and rushed through the required review process.
The EPA's Clean Power Plan and Waters of the U.S. rules are further examples of the agency's attempts to expand its jurisdiction and increase control over Americans, Smith said.
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 (27 DEN A-1, 2/10/16).
Smith Cites ‘Heavy' Public Opposition
“Despite heavy and growing public opposition to these proposals, the Obama administration is actively willing to commit the U.S. to costly new regulations that will do nothing to improve the environment, but will negatively impact economic growth,” Smith said.
Everyone supports energy efficiency and a clean environment, and the air is significantly cleaner now due to the development of new technologies, Smith said. Basic research and development will continue to lead to energy solutions, he said.
“This research should be allowed to mature, so the private sector can transition new technologies into the market before the federal government sets new energy efficiency and environmental standards,” he said.
Energy Efficiency Standards
There may be serious economic consequences if the EPA and the Department of Energy rush forward with proposed regulations, Smith said. “The cost is certain, but the benefits are not,” he said.
Smith said the hearing was intended to examine how the costs of regulation fall disproportionately on small businesses. Higher prices for goods and services combined with reduced economic activity hinder private-sector innovation, he said.
These proposed regulations would have an even greater adverse impact on those who live on fixed- and low-incomes, Smith said. More should be done to hold this administration accountable, and Congress should cut red tape and put America back on a path toward growth and prosperity, he said.
Smith also noted that the Science Committee had been selected to lead a task force on reducing regulatory burdens (24 DEN A-15, 2/5/16).
Committee Seen Ignoring Responsibility
In contrast, Rep. Eddie Bernice Johnson (D-Texas), the ranking member of the committee, said this hearing fit the “consistent pattern” of the committee, which ignores important work under its jurisdiction and instead attacks the government's legitimate and necessary role in protecting the public.
The committee has little, if any, jurisdiction over the regulations at issue, Johnson said. “Nevertheless, today we will undoubtedly hear again the same, tired rhetoric from the majority dismissing the need and value of regulations,” she said.
The notion that federal regulations aren't necessary because private industry would never harm the financial interests or health of the public is simply false, Johnson said.
Instead, regulations protect the public from health hazards and communities from environmental dangers, Johnson said. Regulations aren't appropriate in every instance, but they are a critical tool in improving health and preventing deadly disasters, she said.
Investigating Methane Leak
For example, the lead contamination crisis in Flint, Mich., is a clear example of the need for rigorous implementation of federal regulations and standards, Johnson said. Similarly, the ongoing methane gas leak in California is fouling the environment and endangering the public health, she said.
Indeed, Johnson said she had asked the Government Accountability Office to investigate the Southern California Gas Co. leak, where the continuing release of methane has forced thousands from their homes and posed a significant threat to public health.
“There are serious unanswered questions surrounding this leak, and the safety and operation of these pipelines in general, which are far more worthy of this committee's time and consideration than today's hearing,” Johnson said.
In particular, the committee has a role to play in the technical standards and pipeline safety research governing the country's natural gas infrastructure, Johnson said.
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EPA Vows Continued ESPS Work, Climate Action, Despite High Court Stay
Feb 10, 2016 | InsideEPA
By Abby Smith & Doug Obey
Despite the Supreme Court stay of EPA's existing power plant greenhouse gas standards, a top official says the agency will continue to develop the rule's policy framework and work with businesses and states that continue compliance planning, while also promising to step up efforts to adopt several other pending climate rules before President Obama leaves office.
Acting EPA air chief Janet McCabe Feb. 10 urged members of the American Sustainable Business Council (ASBC) to continue to work with their states to develop plans to comply with the existing source performance standards (ESPS), while emphasizing that the agency will continue to provide them with support.
“We want to make sure that you feel that you know from us that we think it is still important for companies and stakeholders at their state level to continue to be talking about these issues as we move forward,” she told the group's webinar.
But before even discussing the ESPS, widely considered the centerpiece of President Obama's climate agenda, McCabe also outlined a trio of climate rulemakings the administration plans to advance as 2016 priorities -- domestic rulemakings delisting hydrofluorocarbons (HFCs), high global warming potential (GWP) refrigerants; rules limiting methane emissions from the oil and gas sector; and standards curbing GHGs from the transportation sector -- suggesting these actions might move further into the spotlight now that the ESPS remains in legal limbo.
Department of Energy (DOE) Secretary Ernest Moniz offered a similar message, telling a Feb. 10 meeting of state energy officials that the Supreme Court stay “does not stop the global warming clock from ticking. . . the science was unaffected by yesterday's ruling.” He said the stay will not affect an ongoing drive towards cleaner energy in the marketplace, and argued that the recent Paris climate deal involving numerous countries will only accelerate those changes, requiring U.S. engagement.
“Essentially every country in the world agreed to take significant steps” to lower their GHG emissions, Moniz said, adding that “we've seen an enormous development of the clean energy technology market. It is hard to believe the Paris agreement will not accelerate that even more.”
He said the department remains committed to “assist as desired on an all-of-the-above clean energy agenda” -- an apparent indication DOE will remain engaged in aiding EPA where necessary.
Their comments come after the high court's unexpected Feb. 9 decision granting a stay of the existing source performance standards (ESPS) until court challenges are resolved.
McCabe told ASBC the agency is “disappointed and surprised” with the decision but like other administration officials, remained optimistic that the measure will ultimately be upheld on the merits.
“What makes the plan so strong, and what will ultimately lead it to be upheld, is that it was founded on the voices and ideas we heard throughout the extensive public engagement process,” McCabe said. She later added: “We firmly believe when the court has a chance to weigh the merits, the rule will be upheld and we will move forward.”
She also noted that officials will continue their efforts to curb emissions. It is “important to remember this is not a decision on the merits of the plan, nor does it call into question the important work that we are doing on climate change.”
Precarious Position
Still, the Supreme Court decision places EPA in a precarious position, as many states opposed to the rule are likely to stop compliance activities.
Already some state governors, like Montana Gov. Steve Bullock (R) have suspended compliance planning, and West Virginia Attorney General Patrick Morrisey (R), leading the litigation challenging the rule, has extended that call to “all states.”
“I don't know that it's productive to spend much time talking about a rule that will never be upheld,” Morrisey said on a Feb. 10 call. “If there's a strong sense that this rule will ultimately never see the light of day, starting to plan around something that's illegal doesn't seem to be a good use of resources.”
But McCabe pushed back against the idea that states should halt compliance work, stressing that EPA will “continue to engage with states” while the litigation is ongoing and “provide the tools and support with states who want to” do compliance work.
McCabe also noted that EPA will not stop developing the ESPS policy framework, including the pending model trading rules and the federal implementation plan (FIP), as well as how to account for emissions from biomass.
The agency is going through comments on the FIP, which were submitted to the agency by Jan. 21, she says, and is “talking with people about” the rule's early action incentive program -- called the Clean Energy Incentive Program -- with the goal of finalizing its structure.
In addition to continued work on the power plant program, the agency is also advancing a host of other climate measures.
EPA sent Feb. 5 its latest proposed rulemaking under its Significant New Alternatives Policy (SNAP) program removing several high-GWP HFCs from a list of acceptable alternatives, in keeping with the agency's goal to release a proposed rule early this year.
McCabe notes that the agency is currently working through comments it received on its first-time proposed standards regulating emissions of methane, the potent GHG, from new sources in the oil and gas sector and will be “finalizing those not too long from now.”
In addition, she says, the agency hopes to officially launch its voluntary Natural Gas STAR program encouraging methane reductions from existing sources with industry partners in the spring. The package of policies together seeks to help achieve Obama's goal of reducing 40-45 percent of methane emissions from the oil and gas sector by 2025.
Another “important and significant” rule EPA seeks to finalize “in the first half of this year” is its proposed fuel economy standards for heavy-duty trucks, McCabe says.
McCabe also touted the U.S. role in recent agreement over first-time global GHG standards for new and in-production aircraft announced Feb. 8 by the International Civil Aviation Organization (ICAO), noting EPA was “very pleased” with the result.
Particularly following the Paris Agreement late last year, “having this next international agreement [on climate] is very meaningful and important,” she said. McCabe noted that EPA will be responsible for implementing the ICAO standard domestically, and that the agency intends to finalize its June 10 proposed endangerment finding “early this summer.” This agency action, she adds, will “trigger a domestic rulemaking . . . that is at least as stringent as the ICAO standard,” leaving the door open that EPA could adhere to calls from environmentalists and some state regulators to promulgate a rule more stringent than ICAO's standard -- which many environmentalists have already criticized as too weak.
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The Court Blocks Efforts to Slow Climate Change
Feb 11, 2016 | The New York Times
The Supreme Court’s extraordinary decision on Tuesday to temporarily block the Obama administration’s effort to combat global warming by regulating emissions from power plants was deeply disturbing on two fronts.
It raised serious questions about America’s ability to deliver on Mr. Obama’s pledge in Paris in December to sharply reduce carbon emissions, and, inevitably, about its willingness to take a leadership role on the issue.
And with all the Republican-appointed justices lining up in a 5-to-4 vote to halt the regulation before a federal appeals court could rule on it, the court also reinforced the belief among many Americans that the court is knee-deep in the partisan politics it claims to stand above. While the court’s action was not a ruling on the merits of the case, it will delay efforts to comply with the regulation and sends an ominous signal that Mr. Obama’s initiative, known as the Clean Power Plan, could ultimately be overturned.
The Clean Power Plan, announced by the Environmental Protection Agency last August, requires states to make major cuts in greenhouse gas emissions from their electricity producers, which chiefly use older coal-fired power plants, over the next few years. These plants produce more carbon emissions than any other source, and cutting them is the backbone of Mr. Obama’s larger goal of reducing greenhouse gas emissions over all by at least 26 percent below 2005 levels by 2025.
The rule is based on the Clean Air Act — which, as the court has already made clear in multiple cases, gives the federal government broad authority to regulate a range of pollutants, including carbon emissions from power plants. Mr. Obama is using that authority here. And while the plan sets out aggressive state-by-state goals, it is carefully designed to give states the time and flexibility to meet them. It’s inevitable that some, perhaps many, older coal-fired plants will close; but states can also covert to cleaner-burning natural gas, build renewable-energy sources, like wind and solar, or enter into regional “cap and trade” programs that allow them to buy and sell permits to pollute.
Efforts like these are broadly popular: A clear majority of Americans, including many Republicans, agree that global warming is or will soon be a serious threat. Nearly two-thirds said they would support domestic policies limiting carbon emissions from power plants.
But flexibility, a generous time frame for compliance and public opinion were not enough to sway 27 states that sued to stop what they call a “power grab” by the federal government and Mr. Obama’s “war on coal.” Many of these states depend heavily on coal-fired plants for their power and many are run by Republican governors, who either willfully disbelieve well-established climate science or find it politically impossible to take steps necessary to reduce emissions. They also refuse to recognize that, rule or no rule, the nation’s energy landscape is already changing, with coal-fired power plants gradually but inexorably succumbing to cheaper natural gas and the emergence of renewable energy sources.
The justices could easily have waited. Last month, a unanimous panel of the federal appeals court in Washington, D.C., sided with the administration and refused to block the Clean Power Plan from taking effect. It set an expedited briefing schedule in order to resolve the case well before any significant action is required from the states. Normally, the Supreme Court allows this process to play out. But time and again, this court has shown itself to be all too eager to upset longstanding practice or legal precedent.Chief Justice John Roberts Jr. often complains that the court is unfairly viewed as just another political branch. He said so again in an interview just last week, arguing that the nomination process creates the impression that justices are little more than party loyalists. “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. But, he insisted, “We don’t work as Democrats or Republicans.”
If the court wants to be perceived as acting in a judicial capacity, and not as an arm of the conservatives, it has a funny way of showing it.
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Fallout From Climate Ruling Lands Quickly
Feb 10, 2016 | PoliticoPro
By Andrew Restuccia and Alex Guillén
The Supreme Court’s decision to slam the brakes on President Barack Obama’s most important climate regulation had an immediate impact at home and abroad Wednesday, prompting several states to halt their carbon-cutting efforts while sowing doubts internationally about the United States’ ability to meet its promises.
Just two months after cinching a historic climate deal in Paris, the Obama administration is in damage-control mode thanks to the justices’ surprise 5-4 action Tuesday. The White House tried to downplay the effect of the ruling — but even some big supporters of Obama’s climate efforts said its impact could be devastating.
“This arbitrary roadblock does incalculable damage and undermines America's climate leadership,” California Gov. Jerry Brown said in a statement.
Brown, whose state previously implemented a cap-and-trade system to reduce greenhouse gas pollution, has already vowed to keep up California’s climate efforts. But leaders of other states said Wednesday that they are halting work on complying with the EPA’s climate regulation for power plants until the Supreme Court makes a final ruling, which almost certainly won’t happen until after Obama leaves the White House.
“We’re not moving forward with anything until this case is resolved,” Texas Attorney General Ken Paxton told reporters. West Virginia Attorney General Patrick Morrisey, a leader of the anti-EPA litigation, called on states' regulators and legislatures to avoid engaging with the agency on the issue.
Climate supporters said they expect the United States to continue its long-term shift away from carbon-heavy fuels like coal and toward clean sources like wind and solar, regardless of what the court does. But for people involved in international climate efforts, Tuesday’s action revives bad memories of the years of mistrust that reigned after the late 1990s, when the United States refused to ratify the climate treaty that nations had negotiated in Kyoto, Japan.
It’s taken Obama years to rebuild the United States' reputation on climate change, making the Paris agreement possible.
"It would be outrageous to say the least if history repeats itself and the whole world takes on international obligations but the U.S.," said Meena Raman, a legal adviser at the Third World Network, a Malaysia-based group that advocates for poorer countries. She said it would be “tragic” if the U.S. couldn’t meet the Paris agreement’s climate targets, which many developing nations already regard as much too weak.
"There's no question this undermines U.S. leadership on climate change in the international arena," said Jody Freeman, a former Obama administration climate adviser who is now a professor at Harvard. "The court's extraordinary decision here will legitimately raise questions from other countries about the ability of the country to deliver on the administration's pledge in Paris and the depth of the U.S. commitment to deal with this problem in a meaningful way."
The court late Tuesday ordered a stay on the EPA regulation while a lower court considers legal challenges from coal-burning utilities, mining companies and 27 states. The case will probably head back to the Supreme Court for an eventual decision on its merits, but that’s unlikely to happen before 2017 at the earliest.
White House spokesman Eric Schultz insisted Wednesday that the ruling won’t interfere with the Paris deal, saying the U.S. can meet its short-term commitments thanks to an extension of tax credits for wind and solar power that Congress approved in its December spending deal.
“Our international partners are well aware the policy-making process in the United States is a complicated process, there's often litigation,” Schultz told reporters on Air Force One. When asked whether any foreign leaders had called Obama to express concern about the ruling, Schultz said: “I don't have private conversations to read out to you.”
Before Paris, the United States had for decades played a central role in the failures of international climate talks. Poor countries resented that the U.S., one of the world's top greenhouse gas polluters, wasn't doing more to slash its emissions — which, in turn, frustrated U.S. efforts to bring major carbon polluters such as China and India to the table.
Those frustrations played out dramatically at the 2009 climate talks in Copenhagen, Denmark, which nearly collapsed amid fights between rich and poor nations. The 2010 implosion of cap-and-trade legislation in Congress, which Obama had pitched in Copenhagen as the key plank of his plan to cut emissions, further cemented international fears that U.S. pledges can't be trusted.
By the time the Paris talks rolled around, the once-feuding nations largely set aside their differences, securing a deal in which every nation on the planet agreed to limit its emissions. The U.S. pledged to reduce its greenhouse gas pollution 26 percent to 28 percent below 2005 levels by 2025 — but if the court kills the EPA’s power plant rule, it will be difficult to meet that target.
Some players with the most to lose if climate efforts fail offered a cautious response to the court’s action, saying they hope the U.S. and other countries will keep pushing ahead.
"When it comes to the issue of U.S. perception abroad, in China and elsewhere, it is damaging. There’s no question," said Kenneth Lieberthal, a senior fellow at the Brookings Institution who served as an adviser on Asia during the Clinton administration. But Lieberthal, an expert on Chinese affairs, said China will probably continue with its climate change plans because it sees economic and political advantages in moving toward low-carbon energy, regardless of what the United States does .
The U.S. should continue as well, one diplomat from a small island nation said by email.
"Of course there will be a temptation amongst some to trump up what this means in the context of the Paris agreement," said the diplomat, who was not authorized to speak publicly. "But the U.S. was a key player in securing an ambitious Paris agreement, and we expect them to continue playing a leadership role."
Miguel Arias Cañete, the European Union’s commissioner for climate action and energy, said in a statement that the EU has "confidence in all countries to deliver on what they promised." He said he will discuss the implications of the Supreme Court stay with U.S. climate envoy Todd Stern during a meeting next week in Brussels. A State Department official said the "post-Paris engagement visit" was planned before Tuesday's Supreme Court decision.
Alden Meyer, a veteran of international climate talks and the director of strategy and policy at the Union of Concerned Scientists, said the international community has long had a sophisticated understanding of the challenges facing the climate rules in the U.S.
"I think people understand that this is a work in progress and it’s going to have its ups and downs," he said.
Administration officials were trying their best to reassure other countries that the U.S. isn’t giving up. "All the parties to the Paris agreement should continue doing everything possible to meet their targets, which is precisely what the United States will continue to do,” Tom Reynolds, a top White House climate adviser, said in an email.
Complicating that message, though, is the quick decision by several states to stop working on the compliance plans that they had been scheduled to submit to EPA by 2018. Even Montana’s Democratic governor, Steve Bullock, called a halt Tuesday evening to the work of the council he had created to develop his state's plan.
Bullock said Montana still needs to address climate change, and that he is “committed to ensuring we do so on our own terms.”
The United States’ largest oil industry group was sending a similar message Wednesday, saying the court’s action doesn’t necessarily spell doom and gloom for efforts to reduce carbon — though it argued that the key is to keep producing ample amounts of natural gas, which emits about half the greenhouse gases of coal.
“If you didn’t have the rule at all, business as usual, we see reductions almost as high as what EPA is shooting towards,” Marty Durbin, director of market development at the American Petroleum Institute, said in a briefing Wednesday.
Still, the Supreme Court’s action could cast a shadow on an April 22 ceremony at the United Nations in which world leaders are expected to sign the Paris deal. The White House has declined to say whether Obama will attend, despite mounting speculation that the Earth Day event would be a prime opportunity for the president to show his support for the agreement.
During a conference call with reporters Tuesday night, a senior administration official said the Supreme Court decision won't "have an impact one way or another on April 22."
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House Overwhelmingly Backs Response Bill
Feb 10, 2016 | E&E News PM
By George Cahlink
The House approved legislation this afternoon 216-2 to expand U.S. EPA's authority to notify communities of elevated lead levels in drinking water, a move lawmakers from both parties touted as an initial response to the ongoing water crisis in Flint, Mich.
The bill, H.R. 4470, now heads to the Senate. Similar provisions are under discussion surrounding energy reform legislation pending in that chamber.
"This bill is a first step," said Energy and Commerce Chairman Fred Upton (R-Mich.), who sponsored the bill with the entire Michigan delegation.
"How is that situation possible in the 21st century in the United States of America? We have been seeking answers to that question from EPA, from the state of Michigan and from others," Upton said. "But in the meantime, we know that part of the answer -- certainly not the whole story -- is that there was a terrible breakdown in communication at every level of government."
Upton added he's planning oversight hearings into the water crisis.
Democratic Rep. Dan Kildee, whose district includes Flint, said the measure would not help the 100,000 residents of his city who cannot drink their tap water but might help prevent future crises in other cities.
"We need more," said Kildee, who is working with the White House on a $765 million federal aid package for Flint (Greenwire, Feb. 10).
Beneath the bipartisan push for the measure, lawmakers still made partisan arguments on the floor over who bore the responsibility for the crisis.
Republicans sought to blame EPA for failing to notify the public about high lead levels, while Democrats fingered the state government and noted a lack of federal spending on aging water infrastructure.
"Collectively, this Congress, as well as many previous Congresses, has failed to maintain federal support for the maintenance and improvement of our water infrastructure," said Rep. Paul Tonko (D-N.Y.), a member of the Energy and Commerce Committee. "The poor condition of the water treatment and distribution system in Flint set the stage for this tragedy."
Rep. John Moolenaar (R-Mich.) chastised EPA for waiting 10 months to go public about high lead levels in Flint's water. He said the agency should focus on its core responsibilities, such as providing safe drinking water, rather than "overreaching its regulatory responsibilities."
Specifically, the legislation would require EPA to notify utilities when it receives reports of high levels of lead in drinking water systems and would require water system operators to notify their customers of those elevated levels.
Additionally, the measure would require EPA to develop a strategic plan across state agencies and water plant operators for conducting education and outreach to communities with lead-contaminated drinking water. The bill would also require EPA to more broadly inform the public about the hazards of lead in drinking water.
Republican Reps. Thomas Massie of Kentucky and Todd Rokita of Indiana were the only members to vote against the bill.
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House Boosts EPA Authority to Publicize Water Violations
Feb 11, 2016 | BNA Daily Environment Report
By Amena H. Saiyid
A near unanimous House passed bipartisan legislation Feb. 10 that would strengthen the Environmental Protection Agency's authority to notify the public when lead levels in drinking water violate federal standards.
Authored by Reps. Fred Upton (R-Mich.) and Dan Kildee (D-Mich.), the Safe Drinking Water Act Improved Compliance Awareness Act (H.R. 4470) needed a two-thirds majority vote to pass under suspended rules. The bill secured a vote of 416-2, with Reps. Thomas Massie (R-Ky.) and Todd Rokita (R-Ind.) voting against it.
As adopted by the House, H.R. 4470 also would:
• give an EPA employee, who learns that lead levels in tap water are exceeded, authority to bypass the state and notify the water utility of the violation. If the utility and the state still fail to act, then the EPA would step in;
• require the EPA to develop a strategic plan to handle flow of information among those affected, the state and the federal agency; and,
• require public notification when water being transported in a lead pipe is sufficiently corrosive that it could leach lead into public drinking water.
The measure now heads to the Senate, where a bill with similar public notification provisions awaits consideration. That measure was introduced by Sens. Debbie Stabenow (D-Mich.) and Gary Peters (D-Mich.) on Jan. 28 and was incorporated into an amendment to the Energy Policy Modernization Act (S. 2012).
Includes Emergency Funds for Flint
The amendment includes emergency funds for Flint, Mich., which is reeling from a water contamination crisis, and the public notification measure. Republicans and Democrats are still trying to iron out how to pay for the effort, and those negotiations have placed the passage of S. 2012 in limbo (see related story).
The bipartisan bill was introduced Feb. 4 by both lawmakers because Michigan, primarily, the city of Flint and then the EPA were slow to react and respond to citizens' complaints about the city's tap water.
Contamination of Flint's tap water began after the state switched the city's water supply in April 2014 to the Flint River without adding controls to prevent corrosion of aged lead service lines (24 DEN A-3, 2/5/16).
The measure was co-sponsored by 57 Republicans and 14 Democrats, including all members of the Michigan delegation.
House Speaker Paul Ryan (R-Wis.) tweeted that H.R. 4470 was an “important step in response to #Flint,” because it “holds #EPA accountable for keeping public notified in a crisis.”
No Lawmaker Speaks Against Measure
During the House debate on H.R. 4470, no member spoke against the bill. Republicans for the most part blamed the EPA for ignoring reports of elevated lead levels found in Flint's water, while Democrats mostly held Michigan and Gov. Rick Snyder (R) responsible.
All agree, however, on the need to help Flint residents and to avoid a repeat occurrence.
Upton, who chairs the House Energy and Commerce Committee that has oversight over federal drinking water programs, expressed sadness that Congress has to consider this bill.
“I wish I wasn't here. I wish this bill wasn't necessary, but it is. Our hearts go out to the folks in Flint,” Upton said, noting the “terrible breakdown in communication in every level of government.”
Upton was followed by Rep. Paul Tonko (D-N.Y.), ranking Democrat on the House Energy and Commerce Subcommittee on Environment and the Economy, who urged support for the bill. In his floor remarks, Tonko emphasized that contamination of Flint's drinking water supplies underscores a larger infrastructure problem and the role of Congress.
Congress's Failure Cited
“This Congress, as well as many previous Congresses, has failed to maintain federal support for the maintenance and improvement of our water infrastructure,” Tonko said. “We have been underfunding these systems for decades. The poor condition of the water treatment and distribution system in Flint set the stage for this tragedy.”
Rep. Tim Walberg (R-Mich.) noted that what happened in Flint wasn't a natural disaster but rather a man-made disaster. “Children shouldn't have to worry about safe and clean water. This should not have happened. This bill will ensure that proper coordination occurs going forward.”
Kildee, the bill's author whose district includes Flint, said what happened there was “completely avoidable.” This legislation is one step, but not the total solution, Kildee said, adding that H.R. 4470 would strengthen the hands of those who work at the EPA, requiring them to provide notice to the public and water systems when the state fails to act.
“It's too late to help the people of Flint, but it can help avoid the next Flint perhaps,” he said.
Committee to Hold Hearing on Flint
The Energy and Commerce Committee is expected to hold a hearing in March at an unspecified date and time to examine the causes that led to elevated lead levels in Flint's tap water. Upton said the committee would examine what flexibility is available to a state under the Safe Drinking Water Act to use federal drinking water infrastructure funds to address public health emergencies, such as the one experienced in Flint.
“We are beginning to explore things we might be able to do through the SDWA through an examination of existing law and whether tweaks to existing law are needed. We also need to learn more about Flint and priorities,” Dan Schneider, spokesman for House Energy and Commerce Committee, told Bloomberg BNA.
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