Preview Newsletter
ACC PM 2/11/16
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(ACC Mentioned) Doubts Raised About Key BPA Substitute
Feb 11, 2016 | Chemistry World
By Rebecca Trager
Questions are being asked about the safety of a common substitute for the controversial compoundbisphenol A (BPA). BPA is used to make certain plastics and a number of countries have banned its use in food contact items such as baby bottles as it is a known endocrine disruptor. -
(ACC Mentioned) WSJ Survey: Economists Lower Growth Estimates Amid Rising Recession Risk
Feb 11, 2016 | Wall Street Journal
By Josh Zumbrun
The risk of the U.S. tilting into a recession is rising due to the tumble in financial markets, according to The Wall Street Journal’s latest survey of economists. -
(ACC Mentioned) American Chemistry Council Funnels Millions of Dollars Into Political Influence to Soften Chemical Regulations
Feb 11, 2016 | Natural News
By Julie Wilson
Congress's failure to update the Toxic Substances Control Act (TSCA) of 1976 has prompted numerous states to enact their own restrictions pertaining to the chemical industry. -
States' Body Compares TSCA Reform Bills
Feb 11, 2016 | Chemical Watch
The Environmental Council of the States (Ecos) has produced an 11-page table, comparing the US Senate's proposed reform of the Toxic Substances Control Act (TSCA) with that of the House. -
US EPA Receives 46 Pre-Manufacturing Notices in December
Feb 11, 2016 | Chemical Watch
The US EPA received 46 pre-manufacturing notices (PMNs) for new chemicals last December. Several have their manufacturer, or importer, protected as confidential business information. -
Tests Find Formaldehyde Emissions in Lumber Liquidators' Products
Feb 11, 2016 | E&E Greenwire
Chinese-made flooring sold at Lumber Liquidators emitted hazardous levels of formaldehyde, an analysis by the Centers for Disease Control and Prevention has found. -
How to Plug a Leaking Well
Feb 11, 2016 | E&E Greenwire
Roughly 200 million pounds of methane has leaked out of the Aliso Canyon storage well near Los Angeles since last fall, and workers have struggled to plug it for months. -
Cybersecurity Analysis - Cyber Security Services for Passenger and Freight Rail Applications
Feb 11, 2016 | Railway Technology
Cybersecurity Analysis is a US-based consultancy providing standards-based cyber-security services to agencies and organisations in the rail (freight and passenger), oil and gas, and pipeline sectors. -
EPA Allies, Challengers Hunt for Clues in Supreme Court Decision
Feb 11, 2016 | E&E Energywire
By Ellen M. Gilmer
As the energy and environmental policy world moves beyond the shock factor of Tuesday's stunning Supreme Court decision to freeze the Obama administration's landmark Clean Power Plan, supporters, foes and outside experts are busy reading between the lines and staking out theories about the rule's fate. -
For Many Utilities, Court Action 'Doesn't Really Change Anything'
Feb 11, 2016 | E&E Energywire
By Peter Behr, Daniel Cusick, Debra Kahn, Edward Klump, Rod Kuckro, Saqib Rahim and Jeffrey Tomich
The Supreme Court's stay of U.S. EPA's Clean Power Plan doesn't amount to much for many of the nation's electric utilities, as they were already planning to close down their older coal-fired generating units in the next five to 10 years and move to cleaner sources of electric power. -
Climate Ruling Sparks Expensive Game of Red Light, Green Light
Feb 11, 2016 | E&E Climatewire
By Elizabeth Harball and Emily Holden
U.S. EPA needed thousands of pages to lay out its ambitious, highly complex strategy to force blue states and red states to figure out how to curb greenhouse gas emissions from their power plants. The Supreme Court has plunged the entire endeavor into uncertainty with a single page. -
Calif. Stays on Path to Compliance, Despite High Court Stay
Feb 11, 2016 | E&E Greenwire
By Anne C. Mulkern
The Supreme Court's decision to halt President Obama's climate rule for power plants won't stop California from moving ahead. -
Wyo. Approves New Rules for Gas Flaring
Feb 11, 2016 | E&E Energywire
Wyoming regulators approved new oil and gas emissions rules Tuesday, reversing the trend for most fossil fuel regulations: Producers gave praise, while environmentalists voiced major concerns. -
How Can Flint Hold Government Accountable? Sue.
Feb 11, 2016 | Washington Post
By Stuart H. Smith
News keeps getting worse in Flint, Mich., where bureaucratic bunglingexposed thousands of residents to highly toxic lead pollution in their tap water. With more than 150 parts per billion — above what common filters can extract — children in particular are at a heightened risk of developing irreversible conditions including lower IQs and behavioral problems. It’s a crisis of government negligence. -
Murkowski's Office Defends Flint Work
Feb 11, 2016 | Politico Pro - Whiteboards
By Annie Snider
Senate Energy and Natural Resources Committee Chairwoman Lisa Murkowski's office is defending her efforts to win aid for lead-contaminated Flint, Mich., after the state's Democratic senators implicated her for the blame this morning. -
Utilities, Advocates Raise Competing Criticisms Over EPA's CSAPR Update
Feb 11, 2016 | Inside EPA
By Stuart Parker
Utilities and environmentalists are raising competing criticisms over EPA's proposed Cross-State Air Pollution Rule (CSAPR) emissions trading program update for power plants, with utilities doubting the need for the rule and fearing a possible expansion to other sectors while advocates claim the rule will fail to adequately protect public health. -
D.C. Circuit Rejects Modifying Engine Air Rule Decision
Feb 11, 2016 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has denied road builders' petition to revise a unanimous opinion that sent a suit over EPA's approval of California's “in-use” non-road engine air rules to the 9th Circuit, rejecting claims that the ruling inadvertently implies that other states could adopt the same rules. -
American Thoracic Society Joins Greens in Ozone Court Fight
Feb 11, 2016 | E&E Greenwire
By Sean Reilly
The American Thoracic Society has joined the widening legal battle over U.S. EPA's new ozone standard.
Industry and Association News
Chemical Management News
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Energy and Environment News
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(ACC Mentioned) Doubts Raised About Key BPA Substitute
Feb 11, 2016 | Chemistry World
By Rebecca Trager
Questions are being asked about the safety of a common substitute for the controversial compoundbisphenol A (BPA). BPA is used to make certain plastics and a number of countries have banned its use in food contact items such as baby bottles as it is a known endocrine disruptor. Accumulating research suggests that bisphenol S (BPS) – a preferred substitute for BPA – has a very similar toxicological profile to BPA, and may be no less harmful.
Researchers from the University of California, Los Angeles (UCLA) in the US concluded that BPS has similar effects on model biological systems as BPA.1 The team found that the physiology of embryonic zebrafish changed as little as a day after exposure to low levels of either BPA or BPS – levels equivalent to those found in polluted river waters.
‘Egg-hatching time accelerated, leading to premature birth,’ said Nancy Wayne, a reproductive endocrinologist at UCLA and senior author of the study. ‘The embryos developed much faster than normal in the presence of BPA or BPS.’
The UCLA team used fluorescent protein tags to track the development of the zebrafish reproductive endocrine brain cells. They found that exposure to low levels of BPA and BPS had a significant impact on the embryos’ development of these brain cells, which control puberty and fertility.
Previous research led by University of Cincinnati, US, pharmacologist Hong-Sheng Wang has found that BPS might also have acute cardiac toxicity similar to that previously reported for BPA.2 ‘We have shown that BPS and BPA effects were nearly indistinguishable when we examined the impact on a rodent system,’ he tells Chemistry World. At the whole heart level, Wang says his team saw that BPS, like BPA, appears to trigger the development of cardiac arrhythmias.
Cheryl Watson, a cell biologist and endocrinologist with the University of Texas Medical Branch in the US, who has also worked with BPS, says this is just the latest of several studies to demonstrate that ‘we should be very cautious’ about BPA and its replacements. ‘We should find out more about how they act so we know whether we need to keep them out of products definitively,’ she states.
No substitute
Watson’s research has shown that even tiny concentrations of BPS can, like BPA, disturb normal cell functioning and cause both hormone mimicry and hormone disruption. ‘The problem is that whenever they come up with a BPA substitute, nobody checks with a biologist to see what it actually does before they put it in a product,’ Watson says. ‘A lot of these chemicals are disrupting the actions of hormones.’
The American Chemistry Council (ACC) is sceptical of the findings, however, stating that the UCLA study does not demonstrate that low levels of these compounds have any effects on humans. ‘The relevance for human health of this limited study on zebrafish is unclear,’ said Steven Hentges of ACC’s Polycarbonate/BPA Global Group in a statement.
‘The study examines effects of BPA and one alternative on zebrafish embryos in water,’ Hentges noted. ‘In contrast, we know humans are exposed to only trace levels of BPA through the diet.’ Hentges said extensive scientific research has demonstrated that humans efficiently convert BPA to a substance with no known biological activity and quickly eliminate it from the body.
However, Watson isn’t convinced by the ACC’s arguments. ‘To deny that one should be very cautious about something that is harmful in a related biological system seems to me to be extraordinarily dangerous,’ she states.
While Wang agrees that one has to be careful when extrapolating the zebrafish findings directly to humans, he says that the UCLA study, along with his and several others, illustrate that BPA and BPS have ‘a very similar biological effect’. At a minimum, Wang says these findings should prompt further evaluation of the effect of BPA, BPS and other BPA substitutes in higher level organisms.
Just because something is labelled as ‘BPA-free’ doesn’t necessarily mean that the product is free of the potential adverse effects that have been associated with BPA, Wang and Watson warn.
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(ACC Mentioned) WSJ Survey: Economists Lower Growth Estimates Amid Rising Recession Risk
Feb 11, 2016 | Wall Street Journal
By Josh Zumbrun
The risk of the U.S. tilting into a recession is rising due to the tumble in financial markets, according to The Wall Street Journal’s latest survey of economists.
The odds of recession in the next 12 months have climbed to 21%—double the level of a year ago and the highest since 2012, according to the average estimate in the monthly survey.
“Tightening financial conditions are a sizable worry,” said Thomas Costerg, senior economist at Standard Chartered PLC., referring to the broad deterioration in financial markets.
The markets’ woes reflect investor fears that global economic growth is slowing sharply and that the U.S. will be unable to stay healthy when so many foreign economies are lagging.
The Dow Jones Industrial Average through Wednesday had fallen about 13% since its peak last May with many foreign stock markets doing even worse, a tumble that deepenedThursday. With elevated fears in financial markets, even gold has regained some of its luster, climbing 15% so far this year and trading about $1,200 an ounce.
Concerns have also mounted that the U.S. no longer benefits as much from low oil prices. Yes, consumers pay less at the pump. But the boom in U.S. oil production over the past decade now means that a substantial U.S. industry is directly harmed when prices drop so steeply.
“Falling oil prices are bad news for 2016 growth,” said Mr. Costerg, who showed the greatest alarm of participants in the survey, placing the odds of recession in the next year at 50%.
Economists have continued slashing their estimates for economic growth in 2016. A year ago, they estimated growth would rebound to 2.8% in 2016. Those estimates have now fallen to 2.3%.
In December, the average forecaster expected the U.S. to add about 2.4 million jobs over the coming year. That estimate has been reduced by a quarter million jobs.
“The toxicity of the global economic environment continues to be a threat,” said Sean Snaith, director of the University of Central Florida’s Institute for Economic Competitiveness.
While sentiment in the survey has become negative, not all forecasters are as worried. Household spending has continued to grow, with auto sales a particular source of strength. Home building has continued to increase while home prices have risen, helping to stabilize the balance sheets of many families.
“Economic activity remains on track despite financial market turbulence,” said Ram Bhagavatula, of Combinatorics Capital LLC, a New York-based hedge fund.
Forecasters were similarly worried about the economy’s health in 2011 and 2012, the last time their recession odds rose this high. In 2011, Congress nearly failed to reach an agreement to raise the nation’s debt ceiling, a move that could have forced the federal government into default. In 2012, it appeared that Europe’s debt crisis could infect the U.S. economy. In both years, U.S. stock prices fell sharply, with 2011’s drop more severe than the one seen today.
While both episodes damaged the economy, leading to months of weak economic reports and stunting U.S. growth, neither event pulled the U.S. back it into recession.
Forecasting the timing of turning points in the economy is one of the trickiest feats in economics. Those who have done it once have rarely been able to repeat the performance. And few individual forecasters precisely predicted the timing and contours of the most recent recession.
But collectively, their worry grew over the course of 2007, providing a useful alarm to those paying attention. The odds of the economy entering a recession doubled to about 25% in early 2007 from just 12% in 2005. The odds gradually climbed to 40% over the course of 2007. The economy deteriorated slowly in early 2008 and then collapsed rapidly in the final four months of the year. By December 2008, the National Bureau of Economic Research had enough data to make the official determination that the recession had begun one year earlier.
While the current economic expansion has been underwhelming, it has lasted a long time by historical standards. The economy has been gradually expanding—beginning from a several depressed level—since June 2009. The average economic expansion since World War II has lasted for slightly less than six years. The current expansion has lasted for more than 6½.
“We are in the bottom of the seventh on this cycle,” said Kevin Swift, chief economist of the American Chemistry Council.
The Journal surveyed 69 business, financial and academic economists Friday through Tuesday, though not every respondent answered every question. The survey was conducted after last Friday’s jobs report showed theunemployment rate dropped to 4.9%, but before Janet Yellen’s testimony before Congress this week.
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Feb 11, 2016 | Natural News
By Julie Wilson
Congress's failure to update the Toxic Substances Control Act (TSCA) of 1976 has prompted numerous states to enact their own restrictions pertaining to the chemical industry. The move has forced the American Chemistry Council (ACC), a top trade organization representing North American chemical manufactures, to fight chemical regulation legislation at the state level.
The ACC argues that chemical regulation is best dealt with at the federal level through TSCA rather than a "patchwork of state regulations," but public awareness regarding the dangers of chemical exposure has forced state legislatures to take action.
In response, the ACC has redirected their focus to state-level activity by increasing its financial contributions to state and local candidates, according to a new report [PDF] from Citizens for Responsibility and Ethics in Washington (CREW).
American Chemical Council dumping millions into fighting state-level chemical regulations
Their political spending more than tripled ahead of the midterm elections, as the group prepared to battle preemption, or laws passed by states that conflict with federal legislation. ACC describes preemption as their greatest challenge, arguing that the Environmental Protection Agency (EPA) should be the only one responsible for deciding which chemicals are safe to use.
Careful analysis by CREW reveals that ACC's lobbying increased from $3.94 million in 2008 to $12.25 million in 2013, funding thousands of political ads backing members of Congress from both parties in an attempt to push for a "friendly overhaul of chemical safety laws."
Approximately $1.8 million was spent by the ACC in 2014, funding more than 6,000 ads for that year's election cycle, reports The Hill.
"The American Chemistry Council's pumped-up political advertising spending, campaign contributions, and lobbying dollars make it impossible for new chemical regulations to pass without its approval," said CREW Executive Director Melanie Sloan.
"This is a bad sign for Americans looking to Congress and state legislators to protect their communities from the dangers of toxic chemicals."
While the ACC doesn't discriminate between political parties when it comes to their financial contributions, CREW's analysis shows a tilt towards the conservative side with 55 percent of the group's contributions going to Republicans beginning in the 2008 election cycle, but becoming even more prominent in the 2012 and 2014 election cycles.
Roughly 70 percent of ACC's contributions to federal candidates went to Republicans during the 2012 election cycle. Republicans have received about 62 percent of the group's spending in 2014.
Since 2007, House Minority Whip Steny Hoyer (D-MD) has received the most campaign contributions, totaling $38,000. House Speaker John Boehner (R-OH) is the second largest individual recipient, accepting $32,500.
After the West Virginia chemical spill that left more than 300,000 residents without clean water for weeks, Rep. Boehner insisted that no new regulations were needed. Rep. Hoyer also took little action, but said he was open to congressional hearings to find out more about the spill.
"The ACC is increasingly running ads to support a bipartisan group of members it views as allies of the chemical industry, and appears to be spending hundreds of thousands of dollars more on them than must be reported to the Federal Election Commission (FEC)," states CREW's report.
The numbers disclosed by CREW regarding ACC's political spending are likely only a small fraction of what's truly being spent, since the only ads the group is required to report to the FEC are ads advocating the election or defeat of a candidate, known as "independent expenditures."
Independent expenditures, or so-called "electioneering communications," air within 30 days of a primary or 60 days of a general election, criteria that many ACC ads didn't meet. -
States' Body Compares TSCA Reform Bills
Feb 11, 2016 | Chemical Watch
The Environmental Council of the States (Ecos) has produced an 11-page table, comparing the US Senate's proposed reform of the Toxic Substances Control Act (TSCA) with that of the House.
The side-by-side comparison mainly focuses on state-federal issues, such as:timing of preemption;monitoring; andgrandfathering.
It stresses that the table does not represent a formal consensus or an exhaustive analysis of the bills.
Ecos is an association of state and territorial environmental agency leaders, which has the the aim of improving the agencies' capability to protect and improve human health and the environment.
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US EPA Receives 46 Pre-Manufacturing Notices in December
Feb 11, 2016 | Chemical Watch
The US EPA received 46 pre-manufacturing notices (PMNs) for new chemicals last December. Several have their manufacturer, or importer, protected as confidential business information.
During the same period, the agency received 38 notices of commencement to manufacture new chemicals and four applications for test market exemption.
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Tests Find Formaldehyde Emissions in Lumber Liquidators' Products
Feb 11, 2016 | E&E Greenwire
Chinese-made flooring sold at Lumber Liquidators emitted hazardous levels of formaldehyde, an analysis by the Centers for Disease Control and Prevention has found.
Lumber Liquidators stopped selling the laminate flooring in May 2015.
The emissions were high enough to cause breathing problems in people with health problems like asthma and increased cancer risks by a small amount.
The tests came amid health concerns triggered by a "60 Minutes" report on the company's flooring last year (E&ENews PM, March 25, 2015).
"We support their recommendations and share their commitment to educating consumers," Lumber Liquidators said in a statement.
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Feb 11, 2016 | E&E Greenwire
Roughly 200 million pounds of methane has leaked out of the Aliso Canyon storage well near Los Angeles since last fall, and workers have struggled to plug it for months.
A day after the smell was detected by Southern California Gas Co. workers on Oct. 23, 2015, employees tried a typical well-plugging technique of forcing salty fluid down the well to trap the gas. After that didn't work, the company contacted Boots & Coots Services, a Halliburton Co. subsidiary that works to control rogue wells.
Boots & Coots determined that the gas wasn't actually leaking from the top of the well, but instead from a hole 500 feet below the ground. "It was almost like gas was coming up through a sponge and making its way through various cracks and natural parts of the geology," said Jimmie Cho, SoCalGas senior vice president for gas operations and systems integrity.
The contractors tried to push brine down the well with even more force but found that a plug of ice had developed in the tube. Boots & Coots got four long coiled tubes trucked from Louisiana to break the ice and ease access to the well. After breaking it, the companies again tried to force brine down the tube on Nov. 13, 2015, a day "etched" in Cho's memory.
This time, the upward pressure of gas overwhelmed the downward pressure of the brine, which formed a channel as it was pushed to the surface. This channel gave the gas an easy path upward, increasing emissions by 16 percent.
After trying one more "kill" attempt from the surface, SoCalGas announced that it would drill another well to intercept the gas 8,600 feet below the surface. It is now within 20 feet of its target.
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Cybersecurity Analysis - Cyber Security Services for Passenger and Freight Rail Applications
Feb 11, 2016 | Railway Technology
Cybersecurity Analysis is a US-based consultancy providing standards-based cyber-security services to agencies and organisations in the rail (freight and passenger), oil and gas, and pipeline sectors.
The company supplies cyber-security services for transit agencies, ensuring applications such as signalling and communications systems are comprehensively reviewed and protected.
Strategic and tactical services for cyber-security risk management
Cybersecurity Analysis fulfils a wide range of cyber-security needs, focusing on the specific risk management challenges inherent in automated control systems, such as industrial or supervisory control and data acquisition systems.
The company helps its clients to build bridges between management, IT, operations and police employees.
It also helps clients to identify and mitigate plausible risks to automation systems, such as positive train control (PTC), communications-based train control (CBTC), automatic train supervision (ATS), and vital systems.
Cybersecurity Analysis offers a range of standards-based services to address the most challenging cyber-security issues. The company's expertise is with ISO, NIST, APTA, ISA, and IEC standards.
Cybersecurity Analysis's services cover the following:
Cybersecurity strategy: selecting a standards-based risk management approach that meets industry best practices and is tailored to clients' needs
Governance: defining appropriate processes, checks and balances to keep cyber-security programmes on track
Risk and vulnerability assessment: providing consistent results by factoring in the likelihood and impact of potential security breaches.
Defensive architecture: designing defensive architectures to address ever-evolving threats.
Remediation project: defining and managing projects that remediate security gaps.
Wayside, OCC, signals and communications
Cybersecurity Analysis is a leader in rail cyber-security risk management.
The company understands safety operation-critical systems, having shaped the APTA recommended practices for cyber-security.
Unlike enterprise-only firms, Cybersecurity Analysis understands that cyber risk management comprises both information protection and operational safety concerns. The solutions must address technical issues, processes, and behaviours.
Cyber-security breach prevention
Cybersecurity Analysis addresses security breaches, such as those reported by the DHS, Transportation Security Administration (TSA), the US Computer Emergency Readiness Team (US-CERT) and their Industrial Control Systems Cyber Emergency Response Team (ICS-CERT).
Cyber-security issues and rail-specific risks
Cybersecurity Analysis's solutions can help defend its clients from threats performed by hackers. These include signal tampering, vehicle control manipulation, theft of confidential human resources or revenue information, and defacement of announcement boards, websites, or public address systems.
Cybersecurity Analysis is equipped to combat rail-specific challenges, such as geographically dispersed equipment and vulnerable rights-of-way, for vendors and regulators directly connected to railroad IT systems.
Consistent, customisable solutions for rail companies
Cybersecurity Analysis has expertise in systems that control equipment, communications, and signalling. The company uses this knowledge to identify the 'weak spots' where processes and IT systems converge.
The company works in tandem with IT departments, as well as signals and communications personnel, to address specific operational challenges.
Cybersecurity Analysis trains its clients' staff, highlighting each person's critical role in creating a cyber secure operation. The company aims to create a self-sustaining cyber-security risk management culture for its clients.
Robust cyber-security risk management for rail agencies
The company addresses enterprise systems for HR, revenue collection systems, scheduling, public relations, investor relations, financial and customer information, logistics, supply-chain, legal, office management, real estate, physical security, and police operations.
Cybersecurity Analysis also addresses operational systems, including dispatch, operations control centre (OCC), maintenance yards, communications and control systems, signalling, radio communications, traction power, vital systems, safety-critical systems, operationally-critical systems, CCTV, PTC, CBTC, AVL, fire and life-safety systems, and any other unusual exposures that the operation may have.
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EPA Allies, Challengers Hunt for Clues in Supreme Court Decision
Feb 11, 2016 | E&E Energywire
By Ellen M. Gilmer
As the energy and environmental policy world moves beyond the shock factor of Tuesday's stunning Supreme Court decision to freeze the Obama administration's landmark Clean Power Plan, supporters, foes and outside experts are busy reading between the lines and staking out theories about the rule's fate.
Chief among the points of speculation: whether the court's decision foretells its ultimate leanings in the case, and what led swing vote Justice Anthony Kennedy to agree to a stay.
Key players in the historic litigation -- which pits many states, utilities, coal producers and business groups against U.S. EPA, supporting states and environmental allies -- were still largely engaged yesterday in a messaging war over the decision's impact. While Clean Power Plan foes touted the enormous significance of the Supreme Court's 5-4 decision to step in before a lower court has reviewed the rule, administration officials tried to downplay the stay as a preliminary, procedural measure.
According to West Virginia Attorney General Patrick Morrisey (R), who led more than two dozen states in challenging the rule, the decision is a strong signal that the Supreme Court will ultimately overturn the plan, as part of the justices' legal test for stay requests is whether the challengers would likely succeed in litigation on the underlying merits of the case.
"We doubt that the U.S. Supreme Court would have taken such an unprecedented action if they didn't have serious legal concerns about the Clean Power Plan," he told reporters yesterday. "This is a very significant win in this case."
The merit arguments now go before a panel of judges for the U.S. Court of Appeals for the District of Columbia Circuit, with a decision expected later this year. The losing side is expected to appeal to the Supreme Court, so stakeholders are searching for clues about the justices' positions on the broader arguments over the rule's constitutionality.
"We recognize that the stay is not the final say on this matter," Morrisey added. "This is a case that has to get decided on the merits, but it's much better to be in a position where the court believes you have a likelihood of success than in the other position."
EPA backers, meanwhile, favored a more limited reading of the decision's impacts. Senior administration officials this week joined in acknowledging the unprecedented nature of the decision but maintained that the stay was merely a "temporary procedural determination" (EnergyWire, Feb. 10).
Vickie Patton, attorney for the intervenor group Environmental Defense Fund, cautioned against reading too much into the court's decision, arguing that the "bare-bones," one-paragraph order did little to shed light on the justices' reasoning.
"It's really speculation and reading the tea leaves to try to discern why the Supreme Court did what it did for a number of reasons," she said yesterday during an American Bar Association panel discussion. "We don't have a lower court opinion that was before the high court, so there's really nothing we have to build from in understanding what the high court was reacting to. Similarly, the high court's review was extraordinarily truncated."
The D.C. Circuit rejected challengers' request for a stay three weeks ago. The challengers took their request to the Supreme Court days later, both sides filed briefs last week, and the court issued its brief order Tuesday evening.
West Virginia Solicitor General Elbert Lin, who is handling the litigation for his state, disagreed with Patton, countering that the tight timeline does not reflect sloppy jurisprudence from the court. He said it would be a mistake to "take the court's decision too lightly."
"While we don't have a written decision, what we do know is what the standard is," he said during the ABA event. "We know what the standard is, and we know that they granted the stay. Each side will read in that whatever's in their best interest, but these are the facts."
Bracewell LLP attorney Jeff Holmstead, who is representing industry clients against the rule, said the court's consideration of the standards is particularly significant because the court must find that the challengers meet all of the prongs, not just one. Those include whether challengers are likely to succeed on the merits, whether they would face irreparable harm without the stay and whether the "balance of equities" weighs in their favor.
"Obviously five justices decided they met that burden," Lin said.
Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito joined Kennedy in the decision, while Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would have denied the stay request.
The Kennedy question
Legal experts are viewing Kennedy's backing of the Supreme Court's stay decision with cautious interest.
Appointed by President Reagan in 1988, Kennedy is a perennial swing vote for close decisions from the court, and ClearView Energy Partners LLC analyst Christi Tezak said the likelihood of him ruling against the Clean Power Plan in eventual merits litigation is far from certain.
That's in part because Kennedy was the deciding vote in the Supreme Court's landmark 2007 decision in Massachusetts v. EPA, in which the court ruled that greenhouse gases could be regulated under the Clean Air Act.
"Clearly he doesn't seem to be opposed to the idea of regulating greenhouse gases, per se," Tezak said, adding that the breakdown of justices in the stay decision was not necessarily ideological. "It's not like you're looking up at the Supreme Court and there are five people who don't think greenhouse gases should be regulated."
But Kennedy is often considered unpredictable in environmental cases. And with only a brief order from the full court, his legal reasoning this week is unknown -- leaving lawyers involved in the case guessing which arguments will be most persuasive. What element of the Clean Power Plan is likely most troubling for the moderate justice?
Experts say states' rights issues may be at play, as Kennedy has a history of prioritizing the sovereignty of state governments.
"The issue of EPA moving forward with a federal implementation plan if the states don't submit a state implementation plan in September may well have been the catalyst," Tezak said.
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For Many Utilities, Court Action 'Doesn't Really Change Anything'
Feb 11, 2016 | E&E Energywire
By Peter Behr, Daniel Cusick, Debra Kahn, Edward Klump, Rod Kuckro, Saqib Rahim and Jeffrey Tomich
The Supreme Court's stay of U.S. EPA's Clean Power Plan doesn't amount to much for many of the nation's electric utilities, as they were already planning to close down their older coal-fired generating units in the next five to 10 years and move to cleaner sources of electric power.
For most of the rest, the stay allows for more time to puzzle through various compliance options should the rule eventually pass muster with the high court in 2017 or 2018.
The 5-4 decision late Tuesday freezes the Clean Power Plan while the rule is under review at the U.S. Court of Appeals for the District of Columbia Circuit. The stay throws open the door to a prolonged legal battle that could delay early decisions by states about how to meet federal emissions targets outlined in the rule (see related story).
The Supreme Court action "doesn't really change anything," said Quin Shea, vice president for environment at the Edison Electric Institute, the lobby for investor-owned utilities.
Speaking to Wall Street executives yesterday in New York, Shea said larger trends -- such as coal retirements, cheap natural gas, environmental regulations, cheaper renewables and new business models -- aren't going away, regardless of what happens with the CPP.
"We're still reducing CO2, and the general curve, in terms of our emissions reductions, that's not going to change because of what happened yesterday," Shea said. "You don't simply put the genie back in the bottle when it comes to major strategic investments that the captains of industry are making."
Ralph Izzo, chairman, president and CEO of Public Service Enterprise Group Inc., echoed Shea in an interview yesterday with E&ETV.
His state of New Jersey "has done a good job preparing for a CPP-type future. The question just becomes: What are the rules of engagement that are specific to CPP? And that's now been thrown up in the air," Izzo said.
"We've stayed out of the detailed legal debate," he said. As far as an eventual consensus on curbing carbon emissions, "it's a question of timing, not a question of if."
PSEG "firmly believes that carbon emissions need to be reduced. We do believe that climate change is a serious issue; all the science points to that. It is real, and action needs to be taken; it's not going to wait for us to get our legal or political act together," Izzo said.
"So what we've said is, let's just keep marching on the path we've got. I've always predicted this is not going to be decided anywhere but at the Supreme Court," he said.
While the "unusual" ruling was a "surprise" for Gerard Anderson, CEO of DTE Energy Co., he said the court decision will have no effect on the company, at least over the next decade.
"A quick reaction, with one night to sleep on it, is that I'm not sure not much will change for us in the first half of the 15-year Clean Power Plan implementation period. That's because we and many in the industry are dealing with during that period with the replacement of very old, smaller and marginally economical [coal] plants, especially given gas prices now," Anderson said during a conference call to discuss fourth-quarter earnings.
With or without a carbon rule, DTE and Consumers Energy will be retiring a number of older, less efficient coal plants. Detroit-based DTE, in particular, will see coal shrink from 50 percent of its generating portfolio to 25 percent by 2030, to be replaced by natural gas and renewables.
"It's time to move on," Anderson said, noting that some of the plants are from the 1950s and '60s.
Depending on what happens, the court action could have an impact in the second half of the next decade, however.
"As you get out in the later years, 2025 to 2030, you do start to take on some of the larger facilities," he said. "So if it turned out that the Clean Power Plan were changed in some way, those years I think could be affected. That said, there is a lot of water that needs to flow over this dam before we get too specific about the impacts of the stay."
Many already place a price on carbon
Before the court's stay, American Electric Power Co. Inc. -- a major operator of coal-fueled power plants -- had projected a significant drop in those units' production. Coal plants account for 60 percent of the utility's 32,000 megawatts of generation capacity, and AEP expected that to drop to 45 percent by 2026.
"I don't think the stay changes the projection," said John McManus, AEP's vice president for environmental services. "That is based on existing rules we know about and assumptions based on natural gas prices, electricity market prices and customer demand.
"It does not include any compliance assumptions of the CPP."
However, AEP, like other utilities, does include in its projections an implicit price for carbon, which gives a competitive edge to non-carbon sources like nuclear and renewable power. AEP assumes there will be a carbon abatement program for power plants.
Does this give efficient coal units a reprieve? "That is really a timing question," McManus said, noting that if the stay delays the current compliance schedule beginning in 2022, "coal units aren't going to have to deal with this for some additional time."
"The biggest driver now that we're seeing is the way energy markets are now with gas prices," he added. That will decide the competition between coal, natural gas and other resources over the next few years.
"The implementation of the rule is stayed until its ultimate resolution, but that doesn't prevent a state from doing something proactively, moving forward on its own."
'Breathing room' for compliance planning
Oklahoma-based OGE Energy Corp. was pleased with the stay "even though OGE is well on track in making reductions in CO2 emissions due to our compliance with [a] regional haze rule as previously mandated," said Randy Swanson, an OGE spokesman. He said the stay could provide "some breathing room" as well as "more certainty on compliance decisions pertaining to the rule as the rule goes through litigation."
In Minnesota, where utilities began working with state regulators on compliance strategies more than a year ago, officials expressed surprise at the stay. But utilities also indicated they would continue working to meet carbon reduction targets even as EPA stands down on CPP enforcement.
"While the Supreme Court's ruling is a significant development in this case, the merits of the case have not been decided and the legal proceedings will continue," Minneapolis-based Xcel Energy Inc. said in a prepared statement.
Regardless of the final outcome, Xcel said it will continue to work with states and stakeholders on plans "to create sustainable and affordable energy futures."
"This approach will not only ensure compliance with existing and new regulations, but also take advantage of new technologies, recognize evolving customer needs and continue to drive improvements in how we produce and deliver energy," the Fortune 500 utility said.
Amy Rutledge, a spokeswoman for Minnesota Power, said the company welcomes the stay "since it allows time for the lower Courts to hear and resolve the many legal concerns" about the CPP. She said the Duluth-based utility "will continue to stay engaged in the process as the court determines the next steps for this complicated and impactful regulation."
Utilities in the far West, where states have been pursuing carbon-cutting policies for some time, vowed to continue despite the setback.
"We're still going to continue to look to ways to cost-effectively expand our commitment to renewable resources," said Ry Schwark, a spokesman for PacifiCorp, which has operations in Oregon, Washington, California, Utah, Wyoming and Idaho. PacifiCorp -- a signatory to the White House's American Business Act on Climate Pledge in December, supporting the U.N. climate talks in Paris -- intends to "continue to work with states as they develop their plans," Schwark said.
Schwark said he thought the ruling would encourage states that have been writing carbon regulations, like Oregon and Washington. "This development is just likely to accelerate the momentum for state action," he said.
One of California's largest investor-owned utilities also pledged support for state-level action.
Southern California Edison expressed disappointment in the court's ruling but added that "SCE supports the Clean Power Plan and will maintain an active role in supporting California's efforts to reduce greenhouse gas emissions, including support for renewable energy, transportation electrification, energy efficiency and innovative, clean energy technologies."
Grid operators continue to model, monitor
Many states and utilities across the midsection of the country were looking to analysis and economic modeling being done by the region's grid operator.
The Midcontinent Independent System Operator, which operates the power grid across parts of 15 states, is just wrapping up its near-term analysis of the final rule, which is evaluating dozens of potential scenarios to see what effect the rule would have on the power plant fleet in its footprint. A presentation is scheduled for a Feb. 17 meeting.
Where MISO will go with its longer-term analysis of the impact of the Clean Power Plan is unclear given Tuesday's court decision, spokesman Andy Schonert said in an email. However, the Carmel, Ind.-based grid operator is considering modeling a "Partial CPP Future" scenario that assumes that legal or political challenges would slow or halt compliance.
"We will continue to discuss that possible scenario and other potential scenarios with our stakeholders to ensure we are developing transmission plans that ensure the continued reliability of the electric grid," Schonert said.
The PJM Interconnection said it is still "committed to delivering to the states, as promised, the analysis of the potential effects of the Clean Power Plan on wholesale markets and reliability. PJM intends to complete the planned analysis. Our role is to provide data and analysis to help inform the states should the states need to make decisions in the future."
The Electric Reliability Council of Texas previously warned that the Clean Power Plan could lead to the closure of at least 4,000 MW of coal-fired generation in Texas and an increase in retail power prices. The operator is watching the rule's progress.
"ERCOT will continue to monitor developments and provide information as needed to Texas policymakers on this and other matters that could affect future electric reliability," said Robbie Searcy, an ERCOT spokeswoman.
The Southwest Power Pool, which operates the grid across much of the Great Plains, said it's still evaluating implications of the stay.
"We will work closely with our stakeholders to determine how this action impacts both our ongoing regional transmission planning efforts and our work to facilitate compliance with the federal government's carbon reduction goals," said Lanny Nickell, vice president of engineering at SPP.
Nickell said SPP's stance has remained the same since a draft rule came out in 2014 -- "that sufficient time is needed to develop the necessary transmission infrastructure to facilitate the Clean Power Plan's reliable implementation."
More power company reactions to Supreme Court stay of Clean Power Plan
* "Ameren Corp. is already making the transition to a cleaner and more diverse generation portfolio in a responsible manner," Ajay Arora, Ameren's vice president of environmental services and generation resource planning, said in a statement.
• Calpine Corp. spokesman Brett Kerr said the move wasn't something the market actually anticipated. "We'll continue to be supportive of the Clean Power Plan," he said, pointing to a "natural evolution of the market anyway" away from less efficient coal plants. "So it won't really dictate us to change our strategy too much, which is to focus on being the premier operator of gas-fired plants in the United States." He said it's not in anybody's interest to have a federal implementation plan that dictates compliance for Texas.
• Dominion spokesman David Botkins, said "We will work constructively with the Commonwealth and other stakeholders on a compliance plan that has our customers as the first priority, ensures reliability, and maintains a diverse mix of electric generation."
• New Orleans-based Entergy Corp. has utility operations in Louisiana and three other states as well as a fleet of nuclear reactors. "Entergy representatives will continue to engage with our states and stakeholders while we await the court's decision," said Chuck Barlow, vice president of environmental strategy and policy. "We are uncertain at this time what additional steps our states may take, if any, regarding Clean Power Plan implementation or review," he said.
• Exelon Corp., the nation's largest nuclear operator, said, "Regardless of this procedural development, the Supreme Court already has ruled that carbon is a pollutant the EPA must regulate. Our customers want reliable, clean and affordable electricity, and Exelon remains committed to helping drive the national transition to a low-carbon future."
• Iowa Association of Electric CooperativesExecutive Vice President Chuck Soderberg, said, "Moving ahead with implementation of the Clean Power Plan regulations before legal challenges are played out would have caused many Iowa cooperatives to take costly and irreversible steps to comply."
• Pahl Shipley, director of corporate communications at New Mexico-based PNM Resources Inc., said the stay doesn't affect the company's plan to lower the use of coal significantly by retiring two units at the San Juan Generating Station. "We'll monitor developments and continue to work with the state, but regardless of the outcome the company is moving forward to cut carbon emissions and add cleaner resources to our portfolio, including solar and natural gas," Shipley said.
• Southern Co. spokesman Tim Leljedal called the stay "the right decision for customers and the states unduly tasked with achieving EPA's overreaching mandates." It protects "utility customers against significant near-term costs" while preserving states' authority while the courts weigh ongoing legal challenges, he said.
• Southwestern Electric Power Co., part of American Electric Power Co. Inc., said the court's move confirms that the legal justification for the rule should be looked at by courts before scarce resources are used to develop state plans. "The accelerated schedule for briefing and argument in the lower court assures that the case will be heard promptly," said Peter Main, a spokesman. "AEP has already cut its carbon dioxide emissions 30 percent from 2005 levels, and we will continue to reduce carbon dioxide emissions from our generation fleet as we transition to more natural gas and renewable resources in the future."
• Pacific Gas and Electric Co. said it was "disappointed" by the ruling. "We believe EPA has ample legal authority to pursue the Clean Power Plan," said Vice President of Federal Affairs and Policy Melissa Lavinson, calling EPA's rule "measured and reasonable." "PG&E will continue to support the Clean Power Plan and will move forward with the many steps we are taking to support California's commitments to reduce greenhouse gases."
Cooperatives, public power value more time
Jeffrey Connor, interim CEO for the National Rural Electric Cooperative Association, which had opposed the EPA rule, said "charging ahead with implementation of the Clean Power Plan would have caused immediate and irreparable harm" because co-ops "would have been forced to take costly and irreversible steps to comply with the rule."
Rick Lancaster, vice president of generation at Great River Energy, which produces power for roughly 1.7 million customers through 28 affiliated cooperatives in Minnesota and Wisconsin, said yesterday that officials were still gauging the implications of the court stay.
"We're still not sure what the full outcome will be, but it appears to at least buy us a little more time," he said.
The additional time could be especially helpful for Great River in North Dakota, since its affected coal units -- including the 1,100 MW Coal Creek Station -- are concentrated in the state's lignite coal region. Much of the power from those coal units is sent across high-voltage direct-current transmission lines into neighboring Minnesota.
North Dakota faces one of the toughest CO2 reduction requirements under the Clean Power Plan, at nearly 45 percent, and many of the state's utilities have rallied around the state-led legal challenges to the rule. North Dakota just last week joined the Supreme Court petition filed by more than two dozen states asking for the stay.
Lancaster noted that Great River was not among the utilities challenging the CPP because it believed the rule is consistent with earlier Supreme Court rulings on EPA's standing to regulate carbon dioxide under the Clean Air Act. "It was not our point of view that the rulemaking was contrary to existing law, so we were a little surprised," he said.
That view is not shared by Basin Electric Power Cooperative, one of North Dakota's largest power providers, which said in a statement that the court stay was "a positive step in the right direction," noting the rule's effect on the co-op's customers, "those who will be left paying for compliance with this rule."
The American Public Power Association's response in welcoming the stay was measured. "Almost all parties agree that implementation of the CPP will result in broad and transformative changes to the electricity industry. Thus, resolving these highly controversial issues will significantly reduce the uncertainty of the program and, ultimately, the costs to consumers," the group said in a statement.
In the interim, APPA said, its public power utilities will continue "substantial progress in reducing greenhouse gas emissions through greater use of renewable, nuclear, and other low- and non-emitting sources of electricity generation, and the implementation of energy efficiency and conservation programs."
Asked what APPA would tell members about whether to continue to prepare for possible compliance with the rule, Joe Nipper, APPA's senior vice president for regulatory affairs and communications, said, "With the caveat that we don't 'advise' our members per se, but if asked, our suggestion would be to continue to participate in the state's process if they intend to continue with it."
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Climate Ruling Sparks Expensive Game of Red Light, Green Light
Feb 11, 2016 | E&E Climatewire
By Elizabeth Harball and Emily Holden
U.S. EPA needed thousands of pages to lay out its ambitious, highly complex strategy to force blue states and red states to figure out how to curb greenhouse gas emissions from their power plants. The Supreme Court has plunged the entire endeavor into uncertainty with a single page.
Although more than half of states are challenging EPA's Clean Power Plan rule in court, the vast majority nonetheless were forging ahead with plans to make the required carbon emissions cuts in case those lawsuits failed. Many are now putting on the brakes, goaded by political leaders who revived calls for states to "just say no" to the climate change regulations.
Still more are reassessing whether they should pour resources into a regulation that may change or never go into effect.
"The Supreme Court has sent a message to all of the states: Put down your pencils because the EPA has no authority to issue and force this illegal rule down your throats," West Virginia Attorney General Patrick Morrisey (R) said during a call with reporters yesterday.
The court's 5-4 decision puts the rule on hold at least until the U.S. Court of Appeals for the District of Columbia Circuit decides whether it is legal and possibly until the Supreme Court weighs in on the case.
EPA yesterday confirmed that states will not be required to submit initial plans by September sketching out how they might meet emissions reduction targets. At least four states -- Montana, Nebraska, North Dakota and South Dakota -- have canceled public meetings on the Clean Power Plan. A handful of others, including Michigan, Arizona, Ohio and Utah, have said they will take time to rethink whether planning for the rule will continue.
As a result of the Supreme Court's stay, the momentum that slowly built behind the Clean Power Plan in even reticent states is already showing signs of flagging, raising concerns about whether the United States will be able to make meaningful reductions in greenhouse gases and encourage other nations to follow suit.
EPA won't let the regulation die without a fight, however. Spokeswoman Melissa Harrison said the agency "firmly believes the Clean Power Plan will be upheld."
A number of Democratic-led states proclaimed they will stand by EPA and forge ahead with compliance plans.
"The citizens of Pennsylvania are demanding a Pennsylvania-centric plan that reduces our emissions, so we have to respond to that," said Pennsylvania Department of Environmental Protection Secretary John Quigley. "We are not going to take our foot off the gas pedal."
Notably, a few Republican-led states also said they will continue to plan for ways to cut carbon.
Wyoming Gov. Matt Mead (R) told ClimateWire yesterday that although he considers the Supreme Court's decision "a great bit of good news," his state will continue to plan for the rule, although likely on a more relaxed timeline.
"We don't want to just put all our eggs in a single basket, and that is the court system," Mead said. "So I think we will continue -- maybe not at the same pace -- but I think we will continue to have our [Public Service Commission] and [Department of Environmental Quality] and others at the state see what this would mean."
Harrison noted that EPA will continue to provide tools and support to states that keep working on plans and said the agency will "make additional information available in a timely manner."
Arizonans torn over whether to proceed
In Arizona, where state leaders have been strong critics of the rule, dozens of industry, government and environmental interests poured into an already-scheduled Clean Power Plan meeting yesterday to voice their concerns about the stay.
It was the first public, state-level meeting on the rule held after the Supreme Court's decision and likely provides a preview of the tug-of-war many local agencies will face.
The Arizona Corporation Commission -- the electric regulatory board -- is challenging the rule in court, and a lawyer for the commission yesterday argued to halt planning. But the state's Department of Environmental Quality has been preparing for the Clean Power Plan since shortly after the draft rule came out in the summer of 2014.
Attendees split into three factions: those who feared wasting time and money and wanted to halt Clean Power Plan work, others who said the legal news called for a reassessment, and some who didn't want to lose momentum on sketching out carbon cuts, which they said will be required by necessity or other regulation in the future.
Eric Massey, DEQ's Air Quality Division director, said his agency hadn't yet made a decision about what to do in the long term.
DEQ will still hold a separate technical working group meeting among utilities and consumer interests today and will continue community outreach. But Massey noted that the legal news makes it harder to explain to Arizona residents why they should be engaged about the Clean Power Plan.
DEQ is keeping a key March 1 public meeting on the calendar and plans to present a report on the state's baseline emissions and what it might need to achieve to meet EPA's goals.
"We've not made any long-term decisions as an organization, but for the short term, there is continued value in proceeding down the path of finishing at least some of the technical work we had started," Massey said in an interview after the meeting.
"At the end of the day, regardless of what happens and how long delayed, we are understanding a baseline will always have some level of value to us, so I don't see that as lost effort or lost time or lost work," he said.
Months of analysis, all for naught?
Tom Dorn, a lobbyist for the American Coalition for Clean Coal Electricity, said the coal industry will be pushing to freeze planning because continuing would be "a waste of state resources."
"The group's done a tremendous amount of work and good work, but with this legal question hanging over us, we would be urging the governor and the Legislature and the Corporation Commission and the attorney general to bring this to a stop for now," Dorn said.
Andy Berger, manager of environmental policy at Tri-State Generation and Transmission Association Inc., said DEQ at least shouldn't continue at the same quick pace.
"What is the usefulness of analyses and work that might be done?" he asked, adding, "[We] might end up without a Clean Power Plan or with a substantially different program under 111(d)."
Mark Lewis, a member of the board of the Central Arizona Project, which uses a large amount of energy to move water from the Colorado River throughout Arizona, wanted the group to keep planning because it will have to hash out agreements for other regulations, including for regional haze improvements.
"That's going to happen regardless of what happens with the Clean Power Plan, and I need some certainty of where we're going," he said.
Still, a representative of a cogeneration plant in Yuma, Ariz., said the work should proceed, but DEQ should not finalize a plan.
Massey noted later that DEQ probably can't submit a plan without "clear and express authorization" from state lawmakers, but the agency could likely continue to convene meetings and do technical work.
Some states in limbo; others calling it quits
Many other states yesterday expressed similar uncertainty. Michigan -- among the first Republican-led states to announce it would prepare a compliance plan -- announced that a legal review is under way to determine how it will proceed with its compliance planning process.
Utah held its first public information session this month. But Glade Sowards, Utah's Clean Power Plan coordinator in the state's Division of Air Quality, said the state now will likely shift gears.
"We are going to need to think about what the implications of that are, and then we'll adjust our process accordingly," Sowards said. "We've got to meet with our team first and see how that's impacted by this -- whether we mothball it or we adjust the timeline or what."
Iowa officials also said the state will reach out to utilities and other parties to decide whether and how to proceed.
"This is a very complex rule; it has been since the beginning," said Ben Hammes, a spokesman for Iowa Gov. Terry Branstad (R). "The decision yesterday only makes it more complex."
And although Ohio EPA Director Craig Butler said in an emailed statement that "the Supreme Court got it right," he added, "We will evaluate the decision and determine how it will impact our plans moving forward."
But a number of states called a halt to planning efforts in the 24 hours following the Supreme Court's ruling.
These include Montana, where Gov. Steve Bullock (D) canceled the first meeting of the state's Interim Clean Power Plan Advisory Council, originally scheduled for later this month.
And the official heading North Dakota's compliance effort said that although his agency remains open to developing "a common-sense carbon reduction strategy," the state won't be thinking of that strategy in the context of the federal Clean Power Plan.
"As it looks today, I think we're going to step back," said Dave Glatt, chief of the environmental health section at the North Dakota Department of Health.
Kyrik Rombough, an engineering manager in the air quality program at South Dakota's Department of Environment and Natural Resources, said the state would suspend a series of five public meetings scheduled to begin later this month in Milbank, S.D.
Climate-friendly states say no delays
States where the leadership has prided itself on forward-looking climate policies are forging ahead.
Mary Nichols, chairwoman of the California Air Resources Board, called the Supreme Court decision a "narrowly procedural" ruling that "may create some temporary confusion." She proclaimed that the state will keep working on compliance.
"California will not slow down our drive for clean air, renewable energy, and the good jobs that come from investing in green technologies," Nichols said in a statement.
In Colorado -- where Gov. John Hickenlooper (D) supports the Clean Power Plan and Attorney General Cynthia Coffman (R) is challenging it in court -- state officials also said they would continue with their planning process.
"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," said a statement from the Colorado Department of Public Health and Environment.
Virginia's Department of Environmental Quality announced it would go forward with a Clean Power Plan meeting tomorrow.
The group of business interests and consumer advocates appointed by the governor to sketch out a potential plan had been planning to hash out whether to cap carbon from power plants or fulfill the hopes of the state's biggest utility, Dominion Resources Inc., and stick to an average rate of emissions.
But the stay decision will likely figure prominently in the discussion. Air Division Director Michael Dowd said the talks "should be interesting."
Meanwhile, groups leading regional efforts to plan for the climate rule say halting efforts altogether is a bad idea.
"The Clean Power Plan obligations are still there, and so states may find that it's prudent to continue to plan, especially since the planning is reflective of changes already taking in the electricity systems," said Gabriel Pacyniak, climate change mitigation program manager at the Georgetown Climate Center.
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Calif. Stays on Path to Compliance, Despite High Court Stay
Feb 11, 2016 | E&E Greenwire
By Anne C. Mulkern
The Supreme Court's decision to halt President Obama's climate rule for power plants won't stop California from moving ahead.
The California Air Resources Board said yesterday it would continue with workshops and other events underway to work toward compliance with U.S. EPA's Clean Power Plan.
"The Supreme Court's narrowly procedural ruling may create some temporary confusion, but we are confident that the Clean Power Plan will prevail," ARB Chairwoman Mary Nichols said in a statement. "California will not slow down our drive for clean air, renewable energy, and the good jobs that come from investing in green technologies."
The high court this week said it was putting EPA's rule on hold pending an opinion on its legality from the U.S. Court of Appeals for the District of Columbia Circuit, and perhaps until the Supreme Court ultimately decides the case. That could take years (Greenwire, Feb. 10).
ARB described the high court's decision as a "narrow, preliminary ruling" and said it didn't disturb the rule's status as "enacted federal law."
"Accordingly, ARB is moving ahead to plan for implementation of CPP," the agency said. "This includes holding public workshops and proposing amendments that will enable California to submit a final CPP plan if the Board approves it and any related amendments."
The Golden State plans to use its cap-and-trade program for carbon emissions as the main tool for complying with the federal rule.
The plan requires California to reduce its power-sector emissions about 13 percent below 2012 emissions levels, measured in pounds of carbon dioxide emitted per megawatt-hour. Oil companies in comments to the board have urged that the state instead rely on its renewable portfolio standard or energy efficiency standards (ClimateWire, Jan. 13).
California, the only state with an economywide carbon cap, is already on track to reduce its greenhouse gas emissions to 1990 levels by 2020. ARB is writing regulations to reach 40 percent below the 1990 point by 2030.
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Wyo. Approves New Rules for Gas Flaring
Feb 11, 2016 | E&E Energywire
Wyoming regulators approved new oil and gas emissions rules Tuesday, reversing the trend for most fossil fuel regulations: Producers gave praise, while environmentalists voiced major concerns.
The Wyoming Oil and Gas Conservation Commission voted 5-0 to approve the regulation, which requires producers to outline what types of gas are being vented or burned off from well sites. Currently, they only have to report how much gas is being released.
The rule may help the industry, which is trying to highlight the fact that most of what's released isn't the major greenhouse gas methane, but nitrogen.
Environmentalists argue that the rule doesn't do enough because it still allows venting, which releases gases straight into the atmosphere. Venting is banned in North Dakota and faces further restrictions from the Bureau of Land Management. Flaring, or burning those gases, is considered less dangerous to the environment.
The Wyoming rule did lower the amount that could be vented from 60,000 cubic feet of gas a day to 20,000 cubic feet.
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How Can Flint Hold Government Accountable? Sue.
Feb 11, 2016 | Washington Post
By Stuart H. Smith
News keeps getting worse in Flint, Mich., where bureaucratic bunglingexposed thousands of residents to highly toxic lead pollution in their tap water. With more than 150 parts per billion — above what common filters can extract — children in particular are at a heightened risk of developing irreversible conditions including lower IQs and behavioral problems. It’s a crisis of government negligence.
So how can people who live there hold officials to account? Sue.
We know people in Flint were poisoned. It’s a lawyer’s job to prove that they suffered because officials failed in their obligations, and class-action lawsuits are almost certainly the way to go. Two such suits, both focusing on the actions of the Department of Health and Human Services, have been filed against the state of Michigan, its agencies and the governor. The question is: Will they succeed?
As an environmental lawyer with years of experience suing oil companies for polluting working-class communities in the Deep South, I’ve watched Flint with a sense of déjà vu. What I’ve learned is that in these cases, bad actors, including government, will continually obfuscate until citizens and their lawyers or doctors are able to gather the evidence needed to prove their clients have been harmed. Just look at the misinformation that was put out to the public during the BP oil spill in the Gulf of Mexico about the flow rate of the leak and the safety of seafood harvested from surrounding waters.
Too often, a courtroom is not only the best but the only place where victims can win fair compensation. And their vehicle is a civil suit where the standard, unlike a criminal trial, isn’t “beyond a reasonable doubt.” Instead, lawyers must prove that a “preponderance,” or majority, of the evidence demonstrates liability. If defendants are held responsible, they’re required to compensate their victims financially.
What makes things more complicated in Flint is that unlike an action against an individual or corporation, allegations of mismanagement are directed atstate, local and perhaps federal officials. And because governments write the legislation, they, unlike private entities, can shield themselves from aggrieved citizens seeking compensation. Even when citizens can sue the state, the bar they must clear is frequently higher.
In Michigan, residents wishing to recover from a public agency are required to prove not merely negligence, as they would in a typical case, but grossnegligence, defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” The question is whether officials in Flint, the governor’s office, the Michigan Department of Environmental Quality or the Michigan Department of Health and Human Services were grossly negligent, according to that standard.
It shouldn’t be too hard to get over this hurdle. Already, it’s clear that state officials knew about the crisis and took action to protect themselves, if not the people they served: providing state government workers in Flint with bottled water long before publicly acknowledging to everyday citizens that their water was tainted. The state sent 1,500 water filters to Flint in August, and Gov. Rick Snyder’s office issued a response plan in October — but at that point hadn’t warned residents to stop drinking the city’s water.
Still, cases like these are hard to win because it can be difficult to demonstrate a direct causal relationship between the defendant’s reckless disregard and the plaintiff’s injury. Besides passion, knowing the law and how to fight in court, the lawyers will need deep pockets, a team of recognized experts, and a solid understanding of chemistry and toxicology.
In the environmental cases I’ve litigated, environmental and medical testing, and providing the necessary experts, have cost millions of dollars. In the biggest cases, I have had to use large lines of credit and partner with other law firms. Similarly, this case is probably much larger than any small local law practice can handle. In what is known in the legal industry as a mass tort, as is the case here, lawyers from experienced firms will band together to share in the risks and the potential rewards. Given the circumstances, it’s the best course of action, and in Michigan the criteria are similar to those used in federal courts and in many states.
If the requirements for commonality (the plaintiffs’ claims against the defendants are common), numerosity (it’s impractical for every claimant to sue individually) and the adequacy of the class representatives (the named plaintiffs’ claims are similar to those of the class) are met, certain common questions of law and fact can be certified for one trial. Were the defendants grossly negligent? Was a contract breached? Were consumer protection laws violated? Was the water dangerous? Should the source be replaced? And by what percentage are the different defendants liable for the damages?
If liability is found in the class-action suits, individual damage claims probably will have to be litigated on their own merits, if there is no settlement, because different class members will have different categories of injury.
But first things first: Health is paramount, so anyone in Flint who has been drinking or bathing in the city’s water should see a doctor immediately. But another reason to seek treatment sooner rather than later is to get blood tests and any other relevant medical exams as quickly as possible, to document health problems caused by consuming Flint’s dirty water. Proof of rashes, hair loss or other maladies could become powerful courtroom evidence. I’ve found that clear-cut medical evidence is the best way for plaintiffs to prove they’ve been harmed by pollution, and to withstand challenges from aggressive defense lawyers.
And every cost that results from lead exposure must be accounted for, from medical expenses to the loss of future earnings for children who face diminished cognitive capabilities.
If my experience is a guide, the state will hire the best lawyers and experts money can buy to argue that Flint residents experienced insufficient exposure to lead and that their maladies come from another source or preexisting condition. Unfortunately, it is especially difficult to prove that a brain injury has caused cognitive dysfunction when no prior brain measurements exist. Almost certainly, everyone exposed to Flint’s poisoned water will need a lifetime of medical monitoring to watch for latent diseases that can take years to manifest. If and when that happens, another lawsuit might be in order. That is why potential plaintiffs should be cautious about any hastily offered settlement, which may require a waiver of future claims.
I hope that everyone in Flint has saved their water bills and other receipts as evidence of both the span of time during which they were consuming and paying for city water, and to demonstrate that the water crisis imposed a financial burden — including medical and pharmaceutical costs as well as the expense of buying large quantities of bottled water. This could become important later in establishing the length of exposure and damages to the person and the pocketbook.
Flint’s tap water may be orange and murky, but the way forward is clear: Government, like big business, works for the people only when the cost of doing wrong is shown to be greater than the cost of doing right. And for the people of Flint, the place to teach that lesson is in court.
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Murkowski's Office Defends Flint Work
Feb 11, 2016 | Politico Pro - Whiteboards
By Annie Snider
Senate Energy and Natural Resources Committee Chairwoman Lisa Murkowski's office is defending her efforts to win aid for lead-contaminated Flint, Mich., after the state's Democratic senators implicated her for the blame this morning.
"The energy committee has been and remains unable to agree to add anything to our broad, bipartisan energy bill that directly and deliberately violates the rules of the Senate, the Constitution, or increases deficit spending," Murkowski spokesman Michael Tadeo said in a statement. "Doing so would prevent the bill from ever reaching conference — and, among other consequences, prevent aid from reaching the people of Flint, Michigan."
Tadeo also noted that Michigan Sen. Debbie Stabenow last week blocked consideration of an amendment from Murkowski to offer $550 million in aid to the struggling city, composed of $50 million in immediate loans and grants, and $500 million through a new water infrastructure loan program. At the time Stabenow said "We want to get this solved not just have votes that go down."
This morning Stabenow said she made numerous efforts aimed at satisfying "the majority on the energy committee," but "every time we think we have something, the rug has been pulled out from under us." The latest proposal — a deal struck between Stabenow and Senate Environment and Public Works Committee Chairman Jim Inhofe — was rejected by Republican leaders this week.
Talks will continue, but "leadership has to make the decision to embrace it," Inhofe said this morning.
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Utilities, Advocates Raise Competing Criticisms Over EPA's CSAPR Update
Feb 11, 2016 | Inside EPA
By Stuart Parker
Utilities and environmentalists are raising competing criticisms over EPA's proposed Cross-State Air Pollution Rule (CSAPR) emissions trading program update for power plants, with utilities doubting the need for the rule and fearing a possible expansion to other sectors while advocates claim the rule will fail to adequately protect public health.
The criticisms are outlined in comments that various groups filed on EPA's Dec. 3 proposed rule that would update CSAPR in order to force more cuts in ozone-forming nitrogen oxides (NOx) to help states attain the agency's 2008 ozone national ambient air quality standard (NAAQS) of 75 ppb. The update does not address EPA's Oct. 1 decision to tighten the standard to 70 ppb, and the agency is expected to address that in a future rulemaking.
CSAPR as originally launched in 2011 created an emissions trading system for power plants in 28 eastern states for reducing NOx to help states meet EPA's 1997 ozone standard expressed as 84 ppb and to also cut sulfur dioxide (SO2) in order to help states meet the agency's 2006 fine particulate matter (PM2.5) limit. The update would apply to 23 states, adjusting states' caps, or "budgets," for NOx emissions, but not affecting the SO2 program.
States will have to craft state implementation plans to meet their "good neighbor" obligations under the Clean Air Act that prohibit emissions that cause problems in NAAQS attainment downwind. In the meantime, some in industry are arguing that an interstate NOx trading program is not necessary, as EPA projects almost all areas of the country will by 2025 attain not only the 2008 ozone NAAQS, but the tougher 70 ppb NAAQS as well.
In Feb. 1 comments on the CSAPR update rule, the Utility Air Regulatory Group (UARG), representing electric utilities, takes issue with many aspects of the proposal. UARG says, among many criticisms, that EPA allowed inadequate opportunity for public comment and did not provide adequate access to technical information underlying the update rule.
UARG says that EPA's analysis of "significant contribution" of pollution from upwind areas to downwind areas is flawed; that the reductions required of upwind states do not appear to match the projected air quality improvements downwind; that EPA's definition of "interfere with maintenance" of NAAQS is not Clean Air Act-compliant; that EPA has overestimated the efficiency of control technology and underestimated the time needed to install it; and that EPA should not have counted emissions reductions from the agency's Clean Power Plan (CPP) to cut greenhouse gas emissions from existing power plants in its "base case" for emissions reductions to be achieved under CSAPR.
UARG's Concerns
UARG says that implementation of the CPP is far from certain, given that states have yet to submit implementation plans to the agency and that the rule is being litigated in the U.S. Court of Appeals for the District of Columbia Circuit. The comments were filed before the Supreme Court's decision this week to stay implementation of the rule.
UARG says that EPA's modeling base case "assumes that an enormous amount of coal-fired generation capacity -- over 70,000 [megawatts] -- will be retired by 2018 that in fact will not be retired by that time."
However, EPA officials note that this statement appears to contradict the utility sector's arguments in litigation against the CPP, where industry is seeking a stay of the rule by warning of massive impending power plant retirements.
The Class of '85 Regulatory Response Group, another utility sector body, in its Feb. 1 comments also says EPA has allowed inadequate opportunity for public comment on the CSAPR update. The group says EPA should not require compliance with the updated rule by the 2017 summertime ozone season, as this is an unreasonably fast timetable. The group also echoes UARG's complaint that EPA has made incorrect assumptions about power plant retirements.
"EPA's proposed state budgets are arbitrary and capricious, as they are based on unreasonable predictions that certain [electrical generating units, or EGUs] will retire or idle in or before 2017," the group says.
It further argues that EPA is overestimating the "capacity factor" that natural gas plants can operate at, saying that in reality power plants cannot operate at 90 percent or more of their capacity as EPA assumes. These allegedly incorrect assumptions invalidate the proposed revised NOx budgets, the groups argue.
Also, the group objects to the agency's proposal that emissions allowances "banked," or stored, under the old CSAPR trading regime could only be traded at surrender ratios requiring that more than one allowance be provided for each ton of emissions to be reduced. This will cause market disruptions, the group says.
Potential Expansion
Meanwhile, the American Petroleum Institute (API) and the Council of Industrial Boiler Owners (CIBO) in their separate comments submitted Feb. 1 focus on heading off any potential expansion of CSAPR to non-EGU sources such as industrial boilers in refineries or manufacturing facilities. EPA proposed to at least consider a broader range of stationary sources than just power plants in its proposed update rule.
API says EPA should continue to exclude from CSAPR co-generation facilities that generate both power and heat for industrial facilities, and says there are no readily obtainable NOx cuts to be had from petrochemical plants.
CIBO, meanwhile, says in its comments that non-EGU boilers cannot retrofit emissions controls by 2017, and that doing so would be less cost-effective than the controls EPA has required under CSAPR for EGUs.
Environmentalists' Criticisms
Environmentalists, meanwhile, are attacking EPA's update rule as inadequate to ensure universal attainment of the 2008 ozone NAAQS in the short term.
In Feb. 1 comments, Sierra Club and other groups say "the proposed CSAPR Update simply does not resolve -- and is by EPA's own admission not designed to resolve -- EPA's obligation to resolve interstate transport under the 2008 Ozone NAAQS. Rather than being built around the reductions in NOx emissions necessary to decrease linkages to nonattainment and maintenance areas below the significance threshold, EPA has devised its allocations under the Update to simply reflect reductions that would occur if facilities actually operated the NOx controls that they already have."
The groups say EPA must be more ambitious with its required emissions cuts, especially because of a large pool of cheap existing compliance credits.
The American Lung Association (ALA) in its Feb. 1 comments says EPA should set tougher emission budgets for each state, and should rethink its proposal with respect to emissions credit banking.
"We recommend starting fresh with this revised CSAPR. If EPA seeks to continue to create credits that can be traded, allow only the use of credits earned during this period. EPA must raise the bar above the proposal ratio. Even the stronger of those proposed ratios, four-for-one, is too generous" ALA says.
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D.C. Circuit Rejects Modifying Engine Air Rule Decision
Feb 11, 2016 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has denied road builders' petition to revise a unanimous opinion that sent a suit over EPA's approval of California's “in-use” non-road engine air rules to the 9th Circuit, rejecting claims that the ruling inadvertently implies that other states could adopt the same rules.
In an unsigned Feb. 11 order, D.C. Circuit Chief Judge Merrick B. Garland and Senior Judges David B. Sentelle and Harry T. Edwards deny the petition for rehearing in Dalton Trucking, et al, v. EPA, et al., clearing the way for litigation over California's rules to proceed in the 9th Circuit.
The D.C. Circuit's unanimous Dec. 18 opinion dismissed industry's petition for review of EPA's rule granting a Clean Air Act waiver to approve California's limits on non-road engines, which are commonly used in road construction. The court found that the approval was not of “nationwide cause or effect” and therefore should not be litigated in the D.C. Circuit, which has jurisdiction over all national air rules.
But the American Road and Transportation Builders Association (ARTBA) in a Feb. 1 petition asked the court to rework that language to avoid the implication that other states could adopt California's standards in the future.
The Dec. 18 ruling, by Judge Edwards, said, “[I]t is true that California’s Nonroad Fleet Requirements may be adopted and applied by other states.” The court held that even though other states might enact the same rules based on EPA's approval, the approval did not have nationwide effects because so far none have done so.
ARTBA countered in its petition that “unique facets of this particular California standard preclude other states’ meeting the [air law] requirements” for adopting it. The group urged the D.C. Circuit to “clarify” the ruling to avoid stating that the disputed in-use non-road engine air rules can be adopted by other states. Instead, it argued, the ruling should say, “it is true that certain states may adopt and apply certain California standards.”
Under the Clean Air Act, California alone may apply for a waiver to impose tougher mobile source emissions rules than federal standards. Once granted, the waiver allows California to adopt such standards, and for other states to also adopt the rules, if they are identical and they allow two years' lead time to introduce them.
However, the industry group in Dalton argued that the California rules, which limit engine use rather than regulate engine design, by their nature cannot be replicated exactly by other states immediately, as California would be restricting engine use before other states could do so.
ARTBA argued that the court's reasoning could potentially call into question other EPA waivers for California mobile source air rules, if they do not contain a sufficiently clear finding of nationwide scope and effect. The group's challenge to the rules will now proceed in the 9th Circuit, which includes California.
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American Thoracic Society Joins Greens in Ozone Court Fight
Feb 11, 2016 | E&E Greenwire
By Sean Reilly
The American Thoracic Society has joined the widening legal battle over U.S. EPA's new ozone standard.
In a federal appellate court filing yesterday, the society allied itself as a friend of the court, amicus curiae, with environmental and public health groups contending the agency should have gone further last fall in revising the standard.
"ATS seeks to participate as amicus to detail the importance of more stringent ozone standards for human health, and discuss the negative public health consequences that will follow if the standard adopted fails to adequately protect human health," the group's lawyers wrote.
The New York-based society -- which claims a worldwide membership of more than 15,000 doctors, scientists and health professionals -- will provide information "distinct from arguments expected from other parties" that will be "critical for the court's understanding" of the public health implications of the selected standard, the filing adds.
Ground-level ozone, the main ingredient in smog, can irritate lung passageways and worsen asthma and other diseases. In October, EPA regulators lowered the national ambient air quality standard for ozone from 75 parts per billion to 70 ppb.
Starting with a lawsuit filed by Murray Energy Corp., the Ohio-based coal giant, some 20 states and business groups are challenging the change. On the other side are the Sierra Club, Physicians for Social Responsibility and three other groups that say the latest research supports a 60 ppb threshold. The American Thoracic Society shares that view, labeling EPA's call "a missed opportunity."
"The decision, while a step towards improving America's air quality, is inadequate," George Thurston, chairman of the organization's environmental health policy committee, said in a news release at the time of the announcement.
"EPA failed to fully follow the science and the requirements of the Clean Air Act, and ultimately fell short of its mission to fully protect Americans from air pollution," he said.
The suits have all been consolidated before the U.S. Court of Appeals for the District of Columbia Circuit.
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