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ACC AM Feb 16
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Are Antibacterial Soaps Safe?
Feb 15, 2016 | The Wall Street Journal
By Laura Landro
Is the quest for clean doing more harm than good? That’s the question at the heart of a debate between cleaning-products makers, researchers and environmental advocates. The outcome could affect millions of Americans who use antibacterial soaps, body washes and shower gels to fight germs—as well as the companies that supply... -
Europe's JRC Releases Two New Reference Materials
Feb 15, 2016 | Chemical Watch
The European Commission’s Joint Research Centre (JRC) has released two new certified reference materials for the analysis of toxic elements in plastics. The new materials are upgraded versions of previous reference materials released in 2007. Those are now close to exhaustion. Besides lead, cadmium, mercury and chromium... -
Why Protecting Critical Infrastructure From Cyberattacks Is A Global Emergency
Feb 15, 2016 | Fox News (in BGR)
On Dec. 23, the entire Ivano-Frankivsk region in Ukraine suffered a major power outage. According to security experts and the Ukrainian Government the attackers used a destructive variant of the popular BlackEnergy malware. According to a Ukrainian media, the power outage was caused by a destructive malware that disconnected electrical... -
Methane Leaks Threaten To Undermine Clean Power Plan Targets
Feb 15, 2016 | The Hill - Congress Blog
By Elena Krieger and Zeke Hausfather
The Clean Power Plan could be a historic step toward protecting America’s environment and combating climate change. However, the Environmental Protection Agency’s failure to fully consider the impacts of methane—a potent greenhouse gas—threatens to undermine this major federal effort to curb emissions. -
FERC Chairman: Continuing Work With EPA on Clean Power Plan
Feb 15, 2016 | BNA Daily Environment Report
By Rebecca Kern
Federal Energy Regulatory Commission Chairman Norman Bay said today that FERC staff will continue to meet with the Environmental Protection Agency and the Energy Department on a quarterly basis to discuss implementation of the Clean Power Plan. “We’re continuing to have discussions. The [Supreme Court] stay obviously... -
Scalia's Death Creates Uncertainty For Pending EPA, Clean Energy Cases
Feb 15, 2016 | InsideEPA
By Anthony Lacey
The Supreme Court opening created by the death of Justice Antonin Scalia creates significant uncertainty for several climate, clean energy and environmental cases already on the high court's docket, as well as at least one pending case that the justices were slated to consider for review in the coming days.
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Feb 15, 2016 | The Wall Street Journal
By Laura Landro
Is the quest for clean doing more harm than good?
That’s the question at the heart of a debate between cleaning-products makers, researchers and environmental advocates. The outcome could affect millions of Americans who use antibacterial soaps, body washes and shower gels to fight germs—as well as the companies that supply the $5.5 billion market for soap, bath and shower products.
In September, the Food and Drug Administration will announce a decision on whether companies that make and market antibacterial soaps containing certain ingredients have demonstrated they are safe and more effective than plain soap and water in preventing illness. If the FDA decides against them, the companies must reformulate the products—a step a number of big manufacturers have already taken, citing public concerns—and may need to remove claims from their labels.
The proposed new rules are part of a more sweeping review of virtually all antiseptic products used in the war against germs that are rinsed off or left on, including those used in hospitals to fight the rise in virulent bacteria and protect patients from infection. The FDA also plans to review hand sanitizers, including those based on alcohol, and it’s weighing separate rules for food-processing workers.
The chemicals used in antibacterial cleaners have been around for decades and are used in a wide range of other products There’s a lack of hard data linking them to human health outcomes. The FDA first judged some chemicals were safe and effective in 1994. But the most commonly used chemical, triclosan, was always under separate scrutiny, and while the FDA never took formal action, since then studies have suggested it can interfere with hormones and cause changes in thyroid, reproductive-growth and developmental systems. And some research indicates that the booming use of antibacterials is contributing to the creation of superbugs that are resistant to the antibiotics long used to fight them.
With new evidence that exposure is higher than previously thought and advances in technology to detect chemicals in the body, new data is needed to assess long-term effects, says Theresa M. Michele, director of the Division of Nonprescription Drug Products in the FDA’s Center for Drug Evaluation and Research.
“We now know we can measure small amounts of ingredients in blood and that things you put on your skin can potentially be absorbed into the body,” Dr. Michele says. Her advice: “At this point, wash your hands with plain soap and water, because we don’t have enough data demonstrating these antibacterial soaps are any better” in fighting disease.
A sweeping review
The FDA review, which includes 22 chemicals, has pitted the $30 billion cleaning-products industry, which maintains the products are safe and more effective than regular soap, against environmental groups and some scientists who charge they are not only no more effective than regular soap, but are dangerous to health and should be banned or restricted to fighting dangerous outbreaks in hospitals.
Both sides in the debate have submitted reams of evidence to the FDA supporting their stance, offering up conflicting studies that make it a challenge for the average consumer to make informed decisions.
Most of the controversy focuses on triclosan and a related chemical, triclocarban, first introduced in the 1950s and 1960s, respectively. Triclosan is an antibacterial chemical agent widely used in liquid hand soaps, other personal-care products such as body and face washes, cosmetics, school supplies and kitchenware. It works by killing or weakening bacteria, similar to the way antibiotic drugs prevent or treat infections. But while antibiotics are prescribed to cure disease, antibacterials are aimed at preventing the spread of disease-causing bacteria to people who aren’t infected, including by handling contaminated food and objects, or skin-to-skin contact.
In the case of antibiotics, because the drugs have been used so widely for so long, many types of bacteria have adapted. The FDA and some scientists are now concerned that antibacterial chemicals like triclosan, which linger in the environment and can be absorbed in the body, are also contributing to antibiotic resistance. A new Minnesota law will prohibit some cleaning products like hand soap and body wash containing triclosan after Jan. 1, 2017.
The American Cleaning Institute, which represents about 140 companies, is moving to satisfy the FDA’s data requirements for the safety and effectiveness of antibacterial ingredients, says Richard Sedlak, executive vice president, technical and international affairs. The institute and others have asked the FDA to defer rule making on three other ingredients companies are using as an alternative to triclosan—benzalkonium chloride, benzethonium chloride and chloroxylenol—to allow time to submit new safety and effectiveness data. The FDA’s Dr. Michele says it is considering the request.
But the cleaning institute takes the position that the FDA has “neglected a substantial amount of existing safety data” showing the chemicals are effective in reducing the level of bacteria on the skin and more effective than soap that’s not antibacterial.
Along with another organization, the Personal Care Products Council, it has submitted extensive data to support its view that triclosan has been used safely for decades and has been extensively reviewed and permitted around the world, with no data directly linking it to human harm. Makers of antibacterial bath products also dispute that they are contributing to the creation of superbugs, noting that studies have shown that overuse of prescription antibiotics in humans and livestock is the driving force behind antibiotic resistance.
And the organizations warn that banning antibacterial products would increase the level of risk and exposure of the general population to bacteria, leading to increased infection and disease, including 7.5 million cases of food-borne illness and $38 billion in health-care costs annually. An FDA spokeswoman says the agency has no comment on that estimate.
Changing the rules
The FDA initially proposed a rule that would have disallowed triclosan in hand soaps in 1978 because there wasn’t enough evidence to show it was safe and effective. In 1994, the FDA amended that to say some chemicals were safe for consumer soaps, but continued to propose that additional data were needed for other ingredients, including triclosan. The nonprofit Natural Resources Defense Council sued the FDA in 2010, alleging the agency had unreasonably delayed taking action.
The FDA signed a consent decree to settle the suit, and issued a new proposed rule in 2013, continuing to propose that triclosan not be available for use in consumer washes unless additional safety and effectiveness data were provided to the FDA. The consent decree imposed a September 2016 deadline for a final rule for consumer soaps and set out future deadlines for the FDA to rule on health-care antiseptics and consumer hand sanitizers, including those that are alcohol-based.
A 2014 review of evidence and regulatory actions published in the journal Environmental Science & Technology acknowledged there is a “paucity of data” on triclosan’s adverse effects on humans. But the review notes that U.S. streams have a 60% to 100% likelihood of containing detectable quantities of the chemicals, and they have been detected in high levels in municipal sludge and drinking water, and urine and breast milk. While consumers may use soaps for a few seconds and wash them down the drain, their environmental afterlife is much longer, measured at time scales of up to several decades, the review found.
“There is undeniable evidence that these chemicals have suffused modern life, and we have to question whether this is a good idea,” says Rolf Halden, author of the review and director of Arizona State University’s Biodesign Center for Environmental Security. “It’s virtually impossible to link one particular exposure to these agents, but on a population basis, you see associations between exposure and effect.”
Antibacterial agents “can play an important role in hospitals and health-care settings, but they do not belong in all households, our food supply and our bodies at all times,” he says.
The American Cleaning Institute’s Mr. Sedlak says the vast majority of chemicals are removed during wastewater treatment, but even if some remain, “there is no expectation that there should be adverse consequences of minute traces of triclosan in the environment,” where it continues to break down. He adds that the institute isn’t aware of any studies demonstrating high levels in drinking water.
The National Toxicology Program, at the request of the FDA, is studying the potential for cancer to occur through skin exposure to triclosan. The cleaning institute has told the FDA in comments that it does not believe the study is necessary based on earlier studies of oral exposure that found no evidence of a cancer-causing effect relevant to humans. And Mr. Sedlak says his organization isn’t aware of any studies that link the low levels of triclosan exposure from its use in consumer antiseptic products to a risk of cancer.
Researchers continue to disagree over whether antibacterial soaps provide any benefit over washing with soap and water. A study by South Korean researchers, published last year in the Journal of Antimicrobial Chemotherapy, found that under “real life” hand-washing conditions of about 20 seconds, antibacterial soap containing the maximum amount of triclosan allowed by law was no more effective than plain soap at reducing contamination from 20 bacterial strains.
But in a 2014 study partly funded by the American Cleaning Institute and the Personal Care Products Council, researchers at Rutgers University had study participants’ hands inoculated with Shigella bacteria before washing their hands then handling melon balls. Three antibacterial cleansers, including one containing triclosan, were significantly more effective in reducing the concentration of the bacteria on their hands and the melon balls relative to two regular soap products. The study was published in the Journal of Food Protection.
Popular alcohol-based hand sanitizers are considered less of a threat to human health and the development of antibiotic resistance. Still, the FDA has asked for additional data about alcohol-based sanitizers used in hospitals, where staffers may clean or sanitize their hands up to 100 times a day.
High-stakes fight
For cleaning-products makers, the stakes are high. The FDA estimates the costs of the proposed rule could be as high as $369 million. The agency probably wouldn’t require any product recalls, but companies wouldn’t be able to put more on the market that didn’t meet new standards.
Henkel Corp. , the maker of Dial soaps, says that beginning in December 2014, it removed triclosan from all retail hand soap and foaming-wash products and replaced it with benzethonium chloride, which has equivalent performance. Procter & Gamble and Johnson & Johnson have also phased out triclosan, saying that while evidence has shown it to be safe, to respond to consumer concerns they are reformulating products with other ingredients.
Colgate Palmolive is approved to use triclosan in its Total toothpaste, where studies have shown it is effective against gingivitis, but removed it from the Softsoap brand in 2012. Colgate settled a class-action suit last year claiming it falsely advertised the soaps could kill most germs. A spokesman says it did so to avoid the cost of a trial, and denies the allegations of deceptive labeling and marketing.
Some hospital groups are backing away from certain antibacterials. Kaiser Permanente has banned triclosan and identified 13 antimicrobial chemicals it wants banned from its hospitals because they don’t have health benefits and may be toxic, according to Kathy Gerwig, Kaiser’s environmental-stewardship officer and vice president of employee safety, health and wellness. “We want to use our purchasing power to send a message that it’s not OK to use ingredients that might be harmful to our health,” Ms. Gerwig says.
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Europe's JRC Releases Two New Reference Materials
Feb 15, 2016 | Chemical Watch
The European Commission’s Joint Research Centre (JRC) has released two new certified reference materials for the analysis of toxic elements in plastics.
The new materials are upgraded versions of previous reference materials released in 2007. Those are now close to exhaustion. Besides lead, cadmium, mercury and chromium, the materials contain six other elements: arsenic; bromine; sulphur; antimony; tin; and zinc.
It will therefore support the analysis and calibration of equipment in detecting these elements.
The new materials will allow the implementation of EU legislation that requires limiting those elements to ensure the protection of consumers and the environment. Relevant legislation includes: the RoHS 2 Directive (2011/65/EU); the packaging Directive (94/62/EC); and the end-of-life vehicle Directive (2000/53/EC).
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Why Protecting Critical Infrastructure From Cyberattacks Is A Global Emergency
Feb 15, 2016 | Fox News (in BGR)
On Dec. 23, the entire Ivano-Frankivsk region in Ukraine suffered a major power outage. According to security experts and the Ukrainian Government the attackers used a destructive variant of the popular BlackEnergy malware.
According to a Ukrainian media, the power outage was caused by a destructive malware that disconnected electrical substations. Experts speculate that the hackers targeted Ukrainian power authorities with a spear phishing campaign to spread the malware, leveraging Microsoft Office documents. The incident in Ukraine has refocused attention on the security of critical infrastructure worldwide.
Western infrastructure is a target for several kinds of “threat actors,” including nation-state hackers, cybercriminals, cyber terrorists and hacktivists. TheStuxnet case demonstrated the efficiency of modern cyber weapons – a malicious code spread in a virtual environment like cyberspace could put the lives of entire populations in danger.
Protection of critical infrastructure is a pillar of any government’s cyber strategy. The cyberspace is recognized as the fifth domain of warfare, and militaries across the globe are improving their capabilities in order to protect national assets from cyberattacks.
According to the former chief of the National Security Agency, General Keith Alexander, electric grids, oil refineries and power plants are the biggest targets for cyberattack.
“The greatest risk is a catastrophic attack on the energy infrastructure. We are not prepared for that,” he reportedly said, during a private dinner held by IHS CERAWeek last year.
According to The Telegraph, the former NSA Chief listed five countries that have significant cyber-warfare capabilities – the U.S., U.K., Israel, Russia and Iran.China and North Korea are two other countries two countries significantly investing to improve their cyber capabilities.
NSA chief Admiral Michael Rogers told Congress last year that China is capable of cyberattacks that could cause ‘catastrophic failures’ of an electricity grid, water systems or energy plant.
When dealing with threat actors, we cannot ignore the menace represented by terrorist organizations. The recent dramatic escalation of terrorist attacks is an alarm bell. Security experts believe that too many countries are not prepared to handle cyberattacks, according to a recent report issued by the Nuclear Threat Initiative (NTI), a nonprofit, non-partisan organization with a mission to strengthen global security by reducing the risk of use and preventing the spread of nuclear, biological, and chemical weapons.
The third Nuclear Security Index published by the NTI evaluates the readiness of nations with regard to securing their atomic programs against targets and digital assaults. According to the 2016 NTI Index, while a few nations have found ways to secure atomic facilities against cyber assaults, many still don’t have the necessary laws and regulations in place.
Threat actors could be interested in targeting an atomic facility for a number of reasons, including sabotage and the burglary of atomic materials.
“For example, access control systems could be compromised, thus allowing the entry of unauthorized persons seeking to obtain nuclear material or to damage the facility,” says the NTI report . “Accounting systems could be manipulated so that the theft of material goes unnoticed. Reactor cooling systems could be deliberately disabled, resulting in a Fukushima-like disaster.”
The Nuclear Threat Initiative found that, of the 24 states with weapons-usable nuclear materials and the 23 states that have nuclear facilities but no weapons-usable nuclear materials, 13 receive a maximum score for cybersecurity: Australia, Belarus, Bulgaria, Canada, Finland, France, Hungary, the Netherlands, Russia, Switzerland, Taiwan, the U.K. and the U.S.
However, the report found that 20 states score 0 and lack even basic requirements to protect nuclear facilities from cyberattack. Worryingly, a number of the states that scored 0 have been extending their use of atomic energy.
Recently a number of countries have passed new laws and regulations to improve and upgrade cybersecurity requirements when dealing with the protection of critical infrastructures. The NTI Index took into account efforts by a number of governments, including the U.K., South Africa, Russia, France and Pakistan.
“Given the potential consequences, all states must work aggressively to ensure that their nuclear facilities are protected from cyber attacks,” the report said. “Governments should include the cyber threat within the national threat assessment for their nuclear facilities, and they should put in place a clear set of laws, regulations, standards, and licensing requirements for all nuclear facilities that require protection of digital systems from cyber attacks”.
“At the facility level, leadership must prioritize cybersecurity, determine potential consequences, and implement a program that ensures that digital assets and networks are characterized and secured and that the security is routinely tested,” the report added.
The same opinion is expressed in a survey conducted by the Chatham House think tank that analyzed cybersecurity at civil nuclear facilities. The study interviewed 30 industry practitioners, academics and policymakers from the U.K., Canada, the U.S., Ukraine, Russia, France, Germany and Japan.
The report found that the nuclear industry is falling behind other industries when facing cyber security despite rapidly evolving threats.
“The nuclear industry is beginning – but struggling – to come to grips with this new, insidious threat,” said Patricia Lewis, research director of Chatham House’s international security program.
Nuclear facilities worldwide have reached a high level of physical security and safety, but they are still open to cyberattacks despite steps taken recently by the International Atomic Energy Agency (IAEA).
Hackers target the core of civil nuclear facilities and other critical infrastructure – the SCADA systems and industrial control systems (ICS). Both SCADA and ICS are affected by numerous vulnerabilities that could be exploited at any moment by hackers.
Another myth worth dispelling is the safety of networks totally isolated from the Internet, so called “air-gapped networks.”
“Not only can air gaps be breached with nothing more than a flash drive but a number
of nuclear facilities have virtual private networks (VPN) or undocumented or forgotten connections, some installed by contractors,” the Chatham House report said, citing the example of Stuxnet. “The worm most likely spread initially when infected USB flash drives were introduced into these facilities.”
When dealing with technical challenges, “insecurity by design” is a major problem, according to the report, with patch management of industrial control systems an extremely complex activity. A patch, for example, could cause serious compatibility issues and, in the worst case scenario, deployment could result in downtime and compromise the operation of the entire facility.
“The nuclear industry as a whole needs to develop a more robust ambition to take the initiative in cyberspace and to fund the promotion and fostering of a culture of cyber security, determining investment priorities and ensuring that sufficient and sustained funding is allocated to effective responses to the challenge. It also needs to establish an international cyber security risk management strategy and encourage the free flow of information between all stakeholders,” Chatham House said in its report. “This will require the industry to develop appropriate mechanisms and coordinated plans of action to address the technical shortfalls identified, as well as to find the right balance between regulation and personal responsibility.”
Risk assessment is the most important challenge for operators of critical infrastructure – it is vital to accurately assess and measure the risks in order to have a clear idea of the security measure that must be adopted.
Underlining the importance of this issue, the World Economic Forum recently identified the very real threat posed by cyberattacks. Clearly, there’s no time to waste when it comes to protecting critical infrastructure.
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Methane Leaks Threaten To Undermine Clean Power Plan Targets
Feb 15, 2016 | The Hill - Congress Blog
By Elena Krieger and Zeke Hausfather
The Clean Power Plan could be a historic step toward protecting America’s environment and combating climate change. However, the Environmental Protection Agency’s failure to fully consider the impacts of methane—a potent greenhouse gas—threatens to undermine this major federal effort to curb emissions.
The Clean Power Plan aims to reduce greenhouse gas emissions from the power sector to 32 percent below 2005 levels by 2030. One of its main strategies is switching power generation from coal to natural gas, along with improving coal plant efficiency and deploying renewable energy. The EPA recently calculated that nearly half of the total emission reduction target has already been achieved, due in large part to this shift from coal to natural gas. But according to a study by PSE Healthy Energy released in January, methane leakage from natural gas wells and pipelines could severely undermine the climate objectives of the Clean Power Plan.ADVERTISEMENTThe Environmental Protection Agency (EPA) estimates that the nation’s “upstream” methane leakage rate – the amount that escapes the natural gas system before it is used – is around 1.5 percent. But recent independent scientific studies put nationwide methane leakage between approximately 2 and 4 percent, with rates of 9 percent or higher measured in some places. The exact rate of methane leakage is difficult to calculate nationally, but any leakage has a powerful impact on the climate.
Methane is roughly 34 times more potent than carbon dioxide over a 100-year time span, and 86 times more powerful over 20 years, meaning it has an outsized impact on near-term climate change.
As a result, the real climate benefit of natural gas is much lower than the EPA suggests. When the data is adjusted to accurately account for a higher level of methane leakage, the EPA’s projected 2030 energy mix will fall short of its 2030 goals. At 4 percent leakage, for example, only 28 to 29 percent of emission reductions are achieved by 2030 when considering the 100-year impact of methane, falling far short of the CPP’s 32 percent greenhouse gas emission reduction goal. When considering methane’s 20-year climate impact, only 22 to 23 percent of emission reductions are achieved by 2030. Methane leakage erodes the climate benefit of switching to natural gas in all scenarios, but this impact is largest in the near-term due to the shorter lifespan of methane than CO2. A 6 percent leakage rate erodes the greenhouse gas benefits of switching to gas even further.
In January, the Bureau of Land Management proposed a new set of rules to cut methane emissions from venting, flaring and leaks from oil and gas production on public and tribal lands. These rules add to the EPA draft regulations introduced last fall to reduce methane emissions from new and modified oil and gas infrastructure. Unfortunately, real reductions in methane leakage rates will be limited, because the proposal does not cover existing oil and gas infrastructure. The EPA must take all methane leaks seriously if the CPP is to be a success.
The upshot of the CPP is that states have a huge amount of flexibility in their approach to compliance. Ramping up investment in wind and solar, for example, can help achieve CPP goals without increasing natural gas use.
If states switch to renewable energy and adopt more energy efficiency measures, the national CPP emission reduction target will be achieved even with potentially high methane leakage rates. Even better, if beginning in 2020, states deploy renewables every year at the maximum rate seen historically, the US can easily surpass the CPP’s emission reduction goal – and take more effective action towards curbing climate change.
If methane leakage is not curbed, it could severely undermine the EPA’s aim to slash greenhouse gas emissions from the power sector, especially if states shift from coal to natural gas, rather than to renewable energy. The dependable way for states to meet, or even exceed their commitments under CPP is to focus on renewables and energy efficiency, rather than a switch to natural gas.
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FERC Chairman: Continuing Work With EPA on Clean Power Plan
Feb 15, 2016 | BNA Daily Environment Report
By Rebecca Kern
Federal Energy Regulatory Commission Chairman Norman Bay said today that FERC staff will continue to meet with the Environmental Protection Agency and the Energy Department on a quarterly basis to discuss implementation of the Clean Power Plan.
“We’re continuing to have discussions. The [Supreme Court] stay obviously means that states do not have to comply with requirements of the Clean Power Plan for now, but nothing curtails staff from continuing to meet with the EPA and the DOE and to do some planning,” he told Bloomberg BNA at a meeting of the National Association of Regulatory Utility Commissioners in Washington.
The three agencies last met before the Supreme Court issued a stay on the EPA’s Clean Power Plan on Feb. 9. Requirements for states to develop plans to implement the Clean Power Plan are halted until the regulation can be fully litigated.
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Scalia's Death Creates Uncertainty For Pending EPA, Clean Energy Cases
Feb 15, 2016 | InsideEPA
By Anthony Lacey
The Supreme Court opening created by the death of Justice Antonin Scalia creates significant uncertainty for several climate, clean energy and environmental cases already on the high court's docket, as well as at least one pending case that the justices were slated to consider for review in the coming days.
Scalia died unexpectedly Feb. 13, leaving a significant legacy in environmental, energy and administrative law. But his death also creates a rare opening on the narrowly divided court, potentially shifting its ideological balance for decades to come, including in some pending environmental cases.
For example, observers say the opening increases the prospect that EPA's greenhouse gas rule for existing power plants, also known as the Clean Power Plan, may eventually be upheld, despite the court's unexpected and unprecedented decision Feb. 9 to stay the rule pending judicial review.
Scalia, in one of his last official acts as a justice, was part of a 5-4 majority that issued the stay, and many legal observers expected him to vote to scrap the rule in whole or part.
“Yesterday I put the chances of the Clean Power Plan surviving judicial review at [less than] 10 percent. With Scalia's death I now say it is [greater than] 75 percent,” said Brian Potts, an attorney at Foley Lardner.
And Micheal Gerard, director of the Sabin Center for Climate Change Law at Columbia University, suggested that the rule's bolstered prospects could prompt some states and utilities to continue taking steps to implement the rule despite the stay.
“Several states that litigated against the Clean Power Plan are now considering whether to undertake planning under the plan despite the stay, and it will be interesting to see whether this development influences the thinking of some of these states,” he said.
After the stay was issued, many observers and advocates argued that climate policy could take a larger role in November's presidential election, though the high court opening could now also elevate the issue of judicial nominations for a range of constituencies across the political spectrum.
But prospects for a replacement justice being confirmed anytime soon appear limited as Senate Majority Leader Mitch McConnell (R-KY) has promised to block any nominee President Obama offers to allow the next president to name Scalia's replacement.
And Obama has vowed to offer a nominee, arguing that both he and the Senate should fulfill their duty under the Constitution to fill the high court opening.
Political Stalemate
If the stalemate persists, the narrowly divided court would remain filled with eight justices – Chief Justice John Roberts, along with Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Steven Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagen – creating the prospect of 4-4 split rulings.
If McConnell succeeds in delaying a replacement until the next president takes office, that would leave the court with eight members through the rest of its current term, which ends June 30, and likely through much of its next term as well.
Under a divided ruling, the lower court decision remains in place, though no nationwide precedent is set. That would cause mixed results in the pending environmental, climate and clean energy cases. For example, if the U.S. Court of Appeals for the District of Columbia Circuit eventually upholds the GHG rule, also known as the existing source performance standards, a 4-4 split would leave the rule in place.
That dynamic could also affect pending Clean Water Act (CWA) cases that the court has already agreed to hear or is slated to consider for review. For example, the court is slated to hear oral argument March 30 in Army Corps of Engineers v. Hawkes Co., et al., a case that tests whether property owners can sue over determinations by EPA or the Army Corps of Engineers that certain waters are “jurisdictional” under the water law.
An argument in early spring sets the stage for the high court to issue its decision before its current term ends, and whatever the court decides -- unless it splits 4-4 -- could potentially resolve nationwide the question of when regulators' CWA jurisdictional determinations are subject to judicial review.
While the court may issue some 4-4 decisions, legal experts say justices may also take steps to limit such decisions or alternatively rehear them once a ninth justice is eventually confirmed.
But it is unclear how the court will proceed with the other pending cases, including the pending energy and environmental cases, which have not yet had oral argument or have not yet been accepted for review by the high court.
For example, the court has agreed to review Hughes et al. v. PPL EnergyPlus, et al, and CPV Maryland v. PPL EnergyPlus, et al. -- consolidated cases that could determine the extent to which states can subsidize clean power generation – but it has not yet scheduled the case for oral argument.
Specifically, the litigation centers on whether a Maryland order requiring utilities to enter into long-term “contracts for differences” for new gas generation effectively “set” wholesale power rates in violation of the Federal Power Act -- as utilities have argued -- or instead falls within the scope of the state's authority to make decisions related to retail power.
The high court has also scheduled a Feb. 19 conference to decide whether to grant a petition for a writ of certiorari to hear a challenge to EPA's landmark water pollution control plan for the Chesapeake Bay.
The American Farm Bureau Federation (AFBF) is urging the justices to “decide once and for all” whether EPA's total maximum daily load (TMDL) water cleanup plan for the bay is within the agency's authority or, as AFBF and others claim, sets a negative precedent by vastly exceeding EPA's authority.
In a Feb. 2 reply brief filed with the high court, AFBF reiterated its prior claim that the U.S. Court of Appeals for the 3rd Circuit erred in its unanimous ruling from July that upheld the TMDL. AFBF says that the plan represents “regulatory overreach” as it is overly prescriptive for states, whereas the water law gives deference to states on implementing TMDLs, and that the plan “has upset the CWA's federal-state balance.” If the high court takes the case and the remaining eight justices issue a 4-4 ruling, it would uphold the 3rd Circuit's ruling without setting a nationwide precedent.
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