Preview Newsletter
PM ACC 2/16/2016
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(ACC Mentioned) Modern Transportation Approved as Kosher Certified Carrier
Feb 16, 2016 | American Journal of Transportation
Just off the heels of joining the American Chemistry Council’s (ACC) Responsible Care Partnership, Modern Transportation has also been certified by the OU as a kosher approved carrier. -
(ACC Blog) Grappling with Uncertainty: New Paper Offers a Better Approach
Feb 16, 2016 | American Chemistry Matters
By Nancy Beck
As Donald Rumsfeld taught us, how you handle and communicate what you don’t know is just as important as dealing with what you do know. -
(ACC Mentioned) Scientific Advances Should Be Considered When Updating US Chemicals Law
Feb 16, 2016 | Chemistry World
By Rebecca Trager
As the US Congress stands poised to modernise the now 40-year-old Toxic Substances Control Act (TSCA), experts recently gathered on Capitol Hill to discuss how new tools to assess toxicity, bioactivity and chemical... -
EPA Touts FY17 Plan To Expand 'E-Enterprise' But States See Challenges
Feb 16, 2016 | InsideEPA
By David LaRoss
EPA's proposed budget for fiscal year 2017 touts the agency's plans to expand its "E-Enterprise" initiative with states to streamline environmental policy workloads, but even though state environment agencies... -
Agencies Could Do More on Turf Safety -- Group
Feb 16, 2016 | E&E Greenwire
By Sam Pearson
A plan by three federal agencies to work together on studying safety concerns surrounding synthetic turf may be too hasty for drawing useful conclusions, a well-known advocacy group said today. -
S.C. Johnson To Disclose Fragrance Ingredients
Feb 16, 2016 | Environmental Working Group
By Samara Geller
Do you wonder whether your air freshener’s formulation is safe? Are you tired of reading product labels with the catch-all terms “fragrance” or “natural fragrance” but no specific ingredients? -
U.S. Should 'Prepare to Defend' a Utility Hit with a State-Sponsored Attack
Feb 16, 2016 | E&E Energywire
By Peter Behr
Keith Alexander, former director of national intelligence, told state utility regulators yesterday that he believes terrorists are closing in on the capability of attacking parts of the U.S. power grid. -
FERC Keeps an Eye on the Grid's Most Vital Substations
Feb 16, 2016 | E&E Energywire
By Peter Behr
Federal energy regulators are seeking extra protection for the corners of the interstate high-voltage power grid that could pose the greatest threat to electricity supply if subjected to a coordinated terrorist attack. -
Public Protests Carry On as Bell Tolls for Oil by Rail
Feb 16, 2016 | E&E Energywire
By Blake Sobczak
If market conditions bring oil by rail's demise, green groups will be there to egg it along. -
(ACC Mentioned) Ethanol to n-Butanol in the Land of 10,000 Lakes
Feb 16, 2016 | Biomass Magazine
By Katie Fletcher
Bushels of corn have served as feedstock for Central MN Ethanol Co-op LLC’s dry mill plant since 2002, but those days are soon coming to an end. -
'Heads Are Still Spinning' After Scalia's Death, SCOTUS Ruling
Feb 16, 2016 | E&E Climatewire
By Elizabeth Harball and Emily Holden
The death of Supreme Court Justice Antonin Scalia has jolted state leaders mulling the future of U.S. EPA's Clean Power Plan. -
Backers of Obama Carbon Rule See Window in Supreme Court Rebalancing
Feb 16, 2016 | E&E Energywire
By Ellen M. Gilmer
The death of U.S. Supreme Court Justice Antonin Scalia has sparked a tidal wave of speculation over what a rebalancing of the court and political chaos around Scalia's replacement means... -
Possible Obama Picks Lean Left on Environment
Feb 16, 2016 | E&E Greenwire
By Robin Bravender
With speculation over the next Supreme Court nominee running rampant, potential nominees' records on environmental issues and other hot-button topics are drawing scrutiny. -
EPA Rule Stay to Dominate Utility Regulators' D.C. Meetings
Feb 16, 2016 | E&E Climatewire
By Emily Holden and Rod Kuckro
The nation's utility regulators gather in Washington, D.C., this week for their annual winter meetings -
PSEG's Izzo Discusses Utility's Investment Plans Following Court Stay
Feb 16, 2016 | E&E TV
Will utilities stay the course on clean energy investments following last week's Supreme Court stay of the Clean Power Plan? During today's OnPoint, Ralph Izzo, chairman, president and CEO of Public Service Enterprise Group... -
U.S. Will Sign Paris Agreement and Stick to It - Stern
Feb 16, 2016 | Reuters (In the New York Times)
The United States will sign the Paris Agreement on climate change this year regardless of the Supreme Court's decision to put a chunk of President Barack Obama's environmental action on hold... -
EPA's Objection To Utility Air Permit's SSM Exemption Might Set Precedent
Feb 16, 2016 | InsideEPA
By Stuart Parker
EPA's objection to a Clean Air Act permit for a Texas power plant over a provision that relaxed the utility's mandate to comply with emissions limits during periods of startup, shutdown and maintenance (SSM)... -
Walker Moves to Block Power Plan Compliance after SCOTUS Stay
Feb 16, 2016 | The Hill - E2 Wire
By Devin Henry
Wisconsin Gov. Scott Walker (R) has signed an executive order blocking the formation of a state plan to comply with President Obama’s climate rule for power plants.
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
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(ACC Mentioned) Modern Transportation Approved as Kosher Certified Carrier
Feb 16, 2016 | American Journal of Transportation
Just off the heels of joining the American Chemistry Council’s (ACC) Responsible Care Partnership, Modern Transportation has also been certified by the OU as a kosher approved carrier.
“We are excited to partner with shippers that manufacture USP grade glycols and glycerins that fall within the kosher parameters and have successfully worked with the OU to review the trailers and products that we’ll be hauling”, stated Randy Sheeler, Vice President of Sales at Modern Transportation.
“There are a lot misunderstandings in the bulk liquid and dry transportation industry as to what “kosher” covers as far as products mix. Most think kosher certification only covers edible products, things we consume every day, but actually kosher status can cover a wide range of product in the skincare and beauty care industry that aren’t for human consumption”, added Randy.
“Working with the different Rabbi’s in both New York and the gentleman assigned to our account here locally in Pittsburgh gave me a much better understanding or the parameters of what we can haul in these designated trailers and the importance of the kosher certified wash that needs to be performed after every load, ” added Bob Smith, Sr. Director of Maintenance and Equipment. The auditing process that OU does is intense as they want to protect the integrity of the trailer and monitor every product that goes into that trailer.
Working with the OU gives us the recognition we need to market our company to large manufacturers of kosher products and we can feel certain that the auditing process used for tank trailers is much more intense for the manufacturer and tank wash facilities. We are comfortable that we’ve made the right choice in OU and look forward to adding equipment and shippers as we expand our marketing efforts to haul kosher products.
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(ACC Blog) Grappling with Uncertainty: New Paper Offers a Better Approach
Feb 16, 2016 | American Chemistry Matters
By Nancy Beck
As Donald Rumsfeld taught us, how you handle and communicate what you don’t know is just as important as dealing with what you do know.
A new paper recently published by the scientific journal Environment International offers several different ways to help better address the uncertainty conundrum when it comes to sharing the results of chemical assessments. The paper, “Approaches for describing and communicating overall uncertainty in toxicity characterizations: U.S. Environmental Protection Agency’s Integrated Risk Information System (IRIS) as a case study,” offers five approaches to help people better understand how assumptions and uncertainty factors were used to establish toxicity values.
The recommendations are the result of a great deal of thoughtful input that stemmed from a workshop hosted by ACC’s Center for Advancing Risk Assessment Science and Policy (ARASP) to discuss and explore better methods for presenting uncertainty and risk information in federal chemical hazard assessment programs. The workshop benefited from the input of a wide-range of participants including more than 60 experts in toxicology, risk assessment, risk communication, exposure assessment, and hazard characterization drawn from academia, government, industry, and non-governmental organizations. Several of the proposed approaches also reflect the input from another workshop that was held during the annual meeting of the Society of Toxicology.
While IRIS was used as a case study, the approaches can be applied to the findings in similar databases, including the Agency for Toxic Substances and Disease Registry minimal risk levels and the European Chemicals Agency derived no-effect levels, and could also be adopted or adapted by other agencies and programs when evaluating chemicals. All of these programs could benefit from improving how uncertainty is quantified and communicated by risk assessors. More transparency will surely increase the utility of information generated by chemical assessors and boost the public’s confidence in the results.
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(ACC Mentioned) Scientific Advances Should Be Considered When Updating US Chemicals Law
Feb 16, 2016 | Chemistry World
By Rebecca Trager
As the US Congress stands poised to modernise the now 40-year-old Toxic Substances Control Act (TSCA), experts recently gathered on Capitol Hill to discuss how new tools to assess toxicity, bioactivity and chemical exposure can support the law and instill confidence in the safety of chemicals currently on the US market.
‘Concurrent changes and advances in test methods and the TSCA reform for the first time in decades will set the groundwork for how we view chemical safety for decades to come,’ said Tom Connelly, the executive director and chief executive of the American Chemical Society. Reform of the 1976 law, which regulates the introduction of new or already existing chemicals in the US, has been elusive and controversial.
The experts gathered at the briefing agreed that tremendous advances had been made since the 1970s in understanding how chemicals can interact with biological systems – at the molecular, cellular and organ level. For example, high throughput screening now enables thousands of chemicals to be evaluated in a matter of hours or days.
‘These advances that have been made give us unprecedented opportunity today to apply these to understand the bioactivity and exposure to set risk-based priorities for thousands of chemicals,’ stated Rick Becker, who directs the American Chemistry Council’s (ACC) science and research division. He said these can be used to infer or predict toxicity by comparing biological profiles of less studied substances to those well characterised.
Freed from animal studies
Cal Dooley, the ACC’s president and chief executive, said these new technologies will provide ACC member companies with more cost-effective tools to make determinations about which chemicals merit additional investment. It would free them from reliance on time-consuming and costly animal studies, he suggested.
TSCA reform represents an opportunity to ‘improve upon the regulatory construct’ by giving ‘the EPA more tools, more authority to place a little more demands on industry to provide that technology or information’, Dooley said.
John Wambaugh, a physical scientist at the EPA’s National Center for Computational Toxicology, noted that the agency’s new Tox21 initiative, a multi-centre project in the US, has recently reported the results of tests on 10,000 compounds on cell assays. Wambaugh also pointed to the EPA’s exposure forecasting project, dubbed ExpoCast, which aims to link information on the potential toxicity of environmental contaminants to real-world health outcomes.
Replicating organs
Another development discussed by Crofton is ‘organs-on-a-chip’, which can be used to replicate human biological interactions within tissues and organs. He explained that a range of stem cells found in organs can be grown in a microfluidic system carved out of a microchip to create a model of different organs. ‘Right now, the throughput on an organ-on-a-chip is going to be really small, but there might be a way that we can actually begin to do what I call putting humpty dumpty back together again,’ Crofton stated.
In addition, he said the EPA has launched an programme to create a curated chemical structure database of more than a million unique substances with quality control flags to indicate confidence in structural associations. The agency is also developing pharmacokinetic models for hundreds of chemicals, he added.
Kate Willett, a toxicologist at the Humane Society of the US, noted that the critical goal of this legislation is to protect human health and the environment. This means a system is needed that can quickly identify potential problems and address them in the most time- and cost-effective way possible.
Willett stressed that any new TSCA reform measure must allow for ‘the continuing evolution of this science’. Therefore, she said the final updated law should require that all alternative approaches are used before moving to animal testing. ‘Reducing reliance on animal testing allows more chemicals to be more thoroughly assessed in the most efficient way possible – a win for environmental protection and the industry, and also for the animals that are used in this testing.’
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EPA Touts FY17 Plan To Expand 'E-Enterprise' But States See Challenges
Feb 16, 2016 | InsideEPA
By David LaRoss
EPA's proposed budget for fiscal year 2017 touts the agency's plans to expand its "E-Enterprise" initiative with states to streamline environmental policy workloads, but even though state environment agencies are welcoming the initiative some regulators are saying they will need more funding to achieve many of its goals.
The congressional justification for President Obama's proposed $8.27 billion FY17 budget for EPA released Feb. 9 says the agency is planning to apply E-Enterprise principles in the water, air, waste, toxics and enforcement programs in FY17. Specifically, the justification touts efforts like electronic reporting and integrated state and federal data systems as key to the effort while boosting the "environmental information" grants that support states' work on the initiative to $25 million from FY16's $9 million.
"The E-Enterprise business strategy is an integral part of an agency-wide effort to launch a new era of state, local, Tribal, and international partnerships. Under this strategy, the agency will streamline its business processes and systems to reduce reporting burden on states and regulated facilities, and improve the effectiveness and efficiency of regulatory programs for the EPA, states and tribes," the justification says.
The direct goal of the E-Enterprise project is to develop new tools for states and EPA to access and share data more easily, such as electronic reporting and joint federal-state databases of environmental information.
The agency has touted as early successes of the effort a 2015 Clean Water Act rule for electronic compliance reporting by entities subject to National Pollutant Discharge Elimination System permits, and a new "web portal" -- a single site intended to provide "comprehensive" environmental information to federal, state and local regulators as well as regulated entities and the general public.
The Environmental Council of the States (ECOS), which represents many state environment agencies, welcomed the proposed budget and its increasing focus on E-Enterprise.
ECOS Executive Director Alexandra Dunn in a Feb. 9 statement said, "We are particularly pleased to see a requested increase for environmental information categorical grants, which help support the critical E-Enterprise for the Environment joint state and federal work to improve regulatory processes for the regulated community and increase data availability to the public."
However, it is unclear whether the boost to state grants will be enough to support progress on efforts such as developing new computer systems for electronic permit applications and compliance reporting -- efforts states have previously said are greatly underfunded.
Most recently, the joint EPA-state E-Enterprise ePermitting Scoping Team released a report summarizing surveys of regulators from 35 states on their agencies' progress toward electronic air, water and waste permitting that cited available funding and manpower as the most significant barriers to work in that arena. "Unsurprisingly . . . the most common barrier noted was lack of funding for projects; over 80 percent of respondents cited this barrier. Roughly half of all respondents noted system complexity as a barrier as well," the report says.
While the report does not recommend a funding level for federal or state authorities to support ePermitting, it recommends states coordinate efforts toward that goal with other E-Enterprise projects for streamlining purposes, and work out a detailed projection of their return on investment for ePermitting funding.
Budget Priorities
Along with its focus on E-Enterprise, EPA's FY17 proposal sets out new priorities across all program areas, although the agency's plans to boost funding for climate programs could be in doubt after the Supreme Court stayed the agency's greenhouse gas (GHG) standards for existing power plants, known as the Clean Power Plan, in a Feb. 9 order.
The budget proposal includes "resources for critical work across the EPA for the Clean Power Plan (CPP), including a $25 [million] increase for grants to states for CPP work and planning." Overall, the budget plan includes $210 million "to support regulatory activities and partnership programs to reduce GHG emissions domestically and internationally."
In addition to climate funding at the agency's air office, EPA Assistant Administrator for Research and Development Thomas Burke said on a Feb. 9 press call that his department's climate research agenda is "all very much to complement our activities" with the Clean Power Plan.
EPA did not respond by press time to a request for comment on how the Supreme Court order will affect its climate budget.
The agency's water office is set to begin distributing water infrastructure loans under the Water Infrastructure Finance and Innovation Authority (WIFIA) program for the first time in FY17; the proposal calls for $15 million in subsidies for direct infrastructure loans, and $5 million for administrative costs.
WIFIA was created in 2014 to provide low-interest federal loans and loan guarantees for large water infrastructure and water reuse projects, but EPA is still in the process of starting implementation.
"EPA expects that entities with large-scale, complex water and wastewater projects will be attracted to WIFIA, though the EPA will work to provide assistance to a diverse set of projects," the agency's budget justification says.
In the toxics arena, EPA is planning to step up its regional offices' role in implementing the Toxic Substances Control Act (TSCA), noting that currently there are only three full-time equivalent (FTE) regional positions focused on TSCA and says the agency is seeking to boost that number to 13. "This expansion will start to close a critical gap in the agency's Chemical Safety Program implementation framework as regional offices are uniquely situated to increase stakeholder involvement to ensure that its risk management actions are effective and efficient, and to leverage the efforts of states, tribes, localities and others to help reach the most vulnerable populations that chemical safety rules are intended to protect," the justification says.
The agency is also planning to complete chemical risk assessments for 21 of the 67 chemicals designated for "work plan" assessments under TSCA, "if adequate data on risk are available." That pace will allow the agency to complete all 67 assessments before the end of FY18, it says.
The work plan program is intended to more strictly apply EPA's existing TSCA authorities to chemicals that are largely grandfathered because they were in the marketplace before TSCA was passed in 1976.
Accelerating Cleanups
EPA's waste office is hoping to accelerate cleanups of underground storage tanks (UST), in order to reverse a trend where such cleanups have slowed.
"Achieving these cleanup rates in the future will be more challenging due to the complexity of remaining sites, an increased state workload, a decrease in available state resources and the increasing costs of cleanups. . . . EPA is working with states to develop and implement specific strategies and activities applicable to their particular sites to reduce the UST releases remaining to be cleaned up," the justification says.
Meanwhile, for FY17 EPA's enforcement office will continue implementing its "Next Generation" compliance initiative -- the agency's plan to cut enforcement costs by relying more on data such as electronic reporting than in-person facility inspections for enforcement.
The justification document notes that EPA's proposal "maintains FTE near the lowest levels in the program's history" while bolstering tools like data analysis and laboratory support that allow compliance personnel to identify violations more efficiently.
It continues that the "Next Generation" resources "will allow our staff to be more efficient and effective at protecting public health and maintaining a level playing field for companies that play by the rules, by assuring compliance with environmental laws."
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Agencies Could Do More on Turf Safety -- Group
Feb 16, 2016 | E&E Greenwire
By Sam Pearson
A plan by three federal agencies to work together on studying safety concerns surrounding synthetic turf may be too hasty for drawing useful conclusions, a well-known advocacy group said today.
Public Employees for Environmental Responsibility -- which has in the past slammed the Consumer Product Safety Commission and U.S. EPA over their handling of synthetic crumb rubber turf concerns -- said the proposed study seemed structured in a way that would be of little use.
EPA, the Centers for Disease Control and Prevention, and CPSC said last week they would examine the turf under a multiagency action plan, which marked the largest federal response yet to health questions over the products (Greenwire, Feb. 12).
The industry, represented by the Synthetic Turf Council, maintained that reports of former athletes developing illnesses after exposure to fields containing the synthetic crumb rubber failed to show scientific proof the material was unsafe.
PEER said the new study's focus on "data and knowledge gaps" and determining what chemicals are in recycled tire crumbs, will not do away with concerns.
The group called on agencies to take a more proactive approach, including a moratorium on building new tire crumb fields until regulators can address risk.
"While we are glad that chemical exposure to crumb rubber surfaces is finally drawing national attention, this 'federal action plan' does not appear designed to lead to actual action," PEER Executive Director Jeff Ruch said in a statement.
"The Consumer Product Safety Commission does not need a survey to know that children come into intimate contact with playground surfaces -- it should instead use its clear existing authority to protect children from harmful chemical exposures," Ruch said.
PEER also speculated that President Obama may have a personal interest in synthetic crumb rubber turf because the first family has its own turf playground at the White House.
A presidential spokesman didn't respond to a request for comment on the claims.
Democratic lawmakers, including House Energy and Commerce Committee ranking member Frank Pallone f New Jersey, did not seem to share PEER's concerns. They described the new federal action as an initial step.
Pallone said in a statement last week that he was "hopeful this action plan will provide much needed answers about the safety of these fields."
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S.C. Johnson To Disclose Fragrance Ingredients
Feb 16, 2016 | Environmental Working Group
By Samara Geller
Do you wonder whether your air freshener’s formulation is safe? Are you tired of reading product labels with the catch-all terms “fragrance” or “natural fragrance” but no specific ingredients?
S.C. Johnson & Son, the manufacturer of such familiar household brands as Windex, Pledge, Shout, Scrubbing Bubbles and Drano, has pledged 100 percent disclosure of fragrance ingredients in its new Glade Fresh Citrus Blossoms collection. This announcement marks the first time a major company has made a commitment to disclose fully the composition of its fragrances.
The webpage for S.C. Johnson’s Fresh Citrus Blossom-scented Glade PlugIns Scented Oil Refill lists a whopping 60 chemical components under the term fragrance.
The company’s action responds to mounting interest and pressure from consumers and retailers who have been demanding to know what’s in everyday household products.
Last April 2015, S.C. Johnson commissioned a study by GlobeScan, a marketing consultant, that found that almost three quarters of people surveyed favored companies that published detailed lists of ingredients over those that kept consumers in the dark. Two months later, S.C. Johnson began to disclose some – but not all -- fragrance chemicals in its Glade brand air fresheners, scented oils and candles. (The company said it would disclose the top 10 of 20 or more fragrance ingredients or all ingredients present in concentrations of greater than 0.09 percent of the formula, whichever number was greater. But it said that some fragrance suppliers had not given approval to disclose their ingredients.)
Disclosure is important to consumers because many fragrance components are allergens. Some are on California’s Proposition 65 list, which is meant to inform citizens about chemicals known to cause reproductive harm, birth defects and cancer.
EWG President Ken Cook thanked S.C. Johnson and commended the company for taking this step to advance transparency in consumer product ingredients by disclosing 100 percent of the fragrance ingredients in a product collection:
S.C. Johnson has once again demonstrated trend-setting leadership in the home care product industry. I’m particularly grateful to S.C. Johnson Senior Vice President Kelly Semrau for her personal leadership, and for keeping EWG informed of the company’s impressive sustainability initiatives.
S.C. Johnson's new policy will go a long way to build consumer confidence in product safety and promote awareness of fragrance chemicals and the fragrance labeling loophole in personal care products.
Federal regulations do not require manufacturers of cleaning products to disclose their ingredients on product labels. Some companies have provided partial ingredient information but have withheld names of fragrance ingredients, on grounds they are obligated to protect the trade secrets of their fragrance suppliers.
S.C. Johnson will list all of the ingredients in three specific Glade products - Fresh Citrus Blossoms scented Glade Wax Melts, Glade PlugIns Scented Oil Refill, and Glade Premium Room Spray. While the company has gone further than many other cleaning product makers, we hope it will broaden its disclosure policy to its other brand lines and to other chemical cocktails customarily described as “thickeners” and “surfactants.”
We hope other companies that make household cleaning products will catch up. Some companies don't disclose a single ingredient on the label or the product website.
EWG has battled for disclosure of product ingredients for many years. In 2012, we created EWG’s Guide to Healthy Cleaning that rates more than 2,000 cleaning and air-care products. It is an important resource for shoppers who want to know the ingredients in their homecare products. The Guide can help them find products that contain fewer ingredients that are hazardous or that haven’t been thoroughly tested.
Consumers can visit our healthy cleaners database to learn how their cleaning products rate and if there are safer alternatives.
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U.S. Should 'Prepare to Defend' a Utility Hit with a State-Sponsored Attack
Feb 16, 2016 | E&E Energywire
By Peter Behr
Keith Alexander, former director of national intelligence, told state utility regulators yesterday that he believes terrorists are closing in on the capability of attacking parts of the U.S. power grid.
Speaking at the winter meeting of the National Association of Regulatory Utility Commissioners, Alexander said that cyberattack capabilities are migrating quickly from state-backed sources to criminal and terrorist organizations.
"The reality is their capabilities are growing," Alexander said of terrorist groups. "In the next 24 months they would have the capability, in my opinion, to attack the [U.S.] grid."
Alexander's prediction was not supported by a second panelist at yesterday's NARUC meeting, Marcus Sachs, senior vice president and chief security officer of the North American Electric Reliability Corp. (NERC). Sachs heads the Electricity Information Sharing and Analysis Center, the industry's portal for coordinating and distributing government and private information on attacks.
Alexander, president of the IronNet Cybersecurity consultancy, cited last year's cyberattack on Ukraine that took down part of its electric power network. The state-of-the-art cyber campaign against Ukraine, which began a year ago, has been linked to Russian sources by cybersecurity analysts.
"It shows that there are tools and capabilities out there than can actually impact us," Alexander said. "What we're going to see is a number of attacks against power infrastructure and other infrastructure."
Sachs replied, "We have to be very careful about saying what happened there could happen here." The Ukraine grid controls employ many common technologies, allowing a single attack campaign to spread widely. That isn't so in the United States, he said, where individual utilities have highly tailored control systems.
The Ukraine attack took advantage of the theft of grid operators' sign-on identities and passwords, enabling the attackers to issue attack commands that appeared to come from legitimate sources, Sachs said. U.S. utilities as a rule pay closer attention to basic identity authentication "hygiene" than Ukraine grid operators did, he said. And the United States has much stronger cybersecurity expertise committed to defense of its grid, he added.
"Let's don't jump to conclusions that what happened there could happen here in the same way," Sachs said.
Other NARUC speakers have stressed the need to build a larger core of cybersecurity specialists in the United States. Some experts warn that in the case of a sophisticated, widely distributed cyberattack, each utility's experts would have their hands full trying to pinpoint potential vulnerabilities in their own company, limiting availability of reinforcements who could deal with cyber-caused blackouts elsewhere.
Nick Akins, chairman and CEO of American Electric Power Co. Inc. and chairman of the Edison Electric Institute, said that the widespread devastation from Superstorm Sandy in 2012 opened a new dialogue between the power industry and federal government on the need to go beyond defense of the grid to closer collaboration on recovery strategies if a major attack succeeded. His company and its industry partners have proposed a program to stockpile high-voltage transformers that would be stored in strategic locations and shipped around the country to replace critical units damaged in a terrorist attack or natural disaster.
Alexander said the sharing of sensitive intelligence about cyberthreats from federal agencies to the private sector must get better. Industry knows about 25 percent of what the government knows about such threats. "That is insufficient. We've got to address that," he said.
The industry-federal relationship also needs to include federal counteroffensive capabilities to deter potential attacks on the grid, he said.
"If a power company is being attacked, whose responsibility is it to defend it?" Alexander said. "If it's a nation-state,[it's] the government. We're not going to give the power companies the authority to attack back."
When Sony Pictures was hit by North Korea, Alexander said, it had no way to defend itself with a counteroffensive. "It would have been illegal," he said. Moreover, the United States can't have private companies freelancing with foreign policy, he added.
"The government has to stand in and be prepared to defend," Alexander said.
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FERC Keeps an Eye on the Grid's Most Vital Substations
Feb 16, 2016 | E&E Energywire
By Peter Behr
Federal energy regulators are seeking extra protection for the corners of the interstate high-voltage power grid that could pose the greatest threat to electricity supply if subjected to a coordinated terrorist attack.
The Federal Energy Regulatory Commission's attention to the grid's most vital transmission hubs, noted in its fiscal 2017 budget request and previous budget documents, continues a strategy that led the commission into controversy two years ago, when the conclusions of a confidential FERC staff study of vulnerable transmission nodes were made public.
FERC's oversight of cyber and physical threats extends to all "bulk power" transmission through its critical infrastructure protection rules, now in their sixth version. But early in 2013, it also undertook a confidential analysis to identify the transmission networks' most strategically important substations, a study that caused a furor when it was leaked to The Wall Street Journal in 2014.
As the Energy Department's inspector general described the FERC study last year, "Ultimately the Commission's study identified, by specific locations, substations which if successfully disabled, could cause failure across wide portions of the U.S. power grid." The particular grid vulnerabilities have never been publicly disclosed.
The vulnerability analysis became even more alarming inside FERC after the shooting attack on Pacific Gas & Electric Co.'s Metcalf substation outside San Jose, Calif., in April 2013, which led former FERC Chairman Jon Wellinghoff to give a series of private industry briefings about FERC's conclusions.
FERC's analysis was described very generally in 2013 by Joseph McClelland, FERC's director of the Office of Energy Infrastructure Security. "We've identified key nodes, substations and generators that if we were attackers we would target."
Starting with major utilities, FERC briefed companies about vulnerabilities, he said: "Who is targeting their facilities, what methods and means they're using, what technologies, and what they can use to protect their systems."
When the FERC study became known, a number of industry experts and administration officials challenged its conclusions, questioning whether attackers would be able to identify vital grid substations and pull off an effective, coordinated attack that could cause extensive blackouts.
Rand Beers, deputy assistant to the president for homeland security, said the FERC analysis was built on "extraordinarily narrow" assumptions. The likelihood of such an event happening was "of such a low probability as to be next to impossible," Beers said following the leak of the FERC report.
'Unlikely loss'
The IG's report noted similar reservations by Energy Department classification officials:
"To achieve the stated consequences, the analysis assumes both peak capabilities at all the targeted generation stations and the loss of all safety systems designed to prevent the consequences described in the analysis. It also assumes complete loss of the substation with no capability to reconstitute," said the IG's report.
"Even with these highly unlikely assumptions, loss of the critical substations cause the formation of islands of power within the interconnect for an unspecified length of time, not total loss of power," it said. "Given this and that achieving the results in the analysis requires the unlikely loss of several safety systems at the time of highest power demand, loss of the critical substations identified in the analysis would not result in the consequence described in the analysis or any other consequence that could be reasonably expected to result in damage to national security."
James Clapper, director of national intelligence, told a congressional committee last year that rather than a "Cyber Armageddon" that wipes out U.S. infrastructure, "we foresee an ongoing series of low- to moderate-level cyberattacks from a variety of sources over time, which will impose cumulative costs on U.S. economic competitiveness and national security" (EnergyWire, March 12, 2015).
Notwithstanding the debate about attack scenarios, FERC still has its eye on grid weak points, according to its budget document.
"[I]t is important to understand the impact that some individual facilities may have on the resilience of critical infrastructure systems, as well as the risk of disruption to those systems from threats and vulnerabilities through cyber and physical attacks. To these ends, the Commission will use its analysis and assessment capabilities as appropriate in support of analyzing infrastructure threats and vulnerabilities to identify particularly critical equipment across the Commission's jurisdictional infrastructures. The Commission will then conduct outreach to facility owners and operators to promote security improvements at those facilities," the budget request said.
A strategy of providing maximum protection for the highest-priority grid facilities has been advocated by three leading security experts in a paper titled "The Case for Simplicity in Energy Infrastructure," published by the Center for Strategic and International Studies (EnergyWire, Nov. 5, 2015).
"To disrupt today's nation state adversaries and tomorrow's cyber terrorists and hacktivists, we must reengineer selected last-mile and endpoint elements of the grid," Michael Assante, Tim Roxey and Andy Bochman wrote.
Assante is a senior associate with CSIS and former chief security officer of the North American Electric Reliability Corp. Roxey is a vice president of NERC and head of the electric power industry's cyberthreat information-sharing program. Bochman is senior cyber and energy security strategist of the Idaho National Laboratory.
"If we narrow our vision and set our sights on the comparatively small number of systems that MUST, from a national security perspective, be kept safe, we already have the process and technology means at our disposal to take back control. It's simple," they wrote.
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Public Protests Carry On as Bell Tolls for Oil by Rail
Feb 16, 2016 | E&E Energywire
By Blake Sobczak
If market conditions bring oil by rail's demise, green groups will be there to egg it along.
Environmentalists and concerned locals crammed back-to-back hearings on two separate oil train projects in California this month, despite a nearly 70 percent year-over-year drop in the amount of crude oil entering the state by rail.
"We benefited from the downturn in the price of oil," said crude-by-rail protestor Andrés Soto, who pointed out that it has been years since he's seen any trains hauling Bakken oil to a Chevron Corp. refinery in his hometown of Richmond, Calif. "That being said, that did not stop our organizing."
Soto is a steering committee member of a group opposed to a 70,000-barrels-per-day crude unloading terminal at another Valero Energy Corp. refinery in Benicia, Calif.
Soto's organization, Benicians for a Safe and Healthy Community, helped fill a city planning commission meeting on the project to overflowing Feb. 8. Commissioners reconvened three more times throughout the week to accommodate the 145 members of the public who signed up to speak, before voting unanimously to oppose Valero's development.
The previous week, hearings on a separate Phillips 66 Co. proposal in San Luis Obispo County, Calif., saw similarly high turnout, prompting city officials to schedule a follow-up meeting for later in February where they are also expected to deliver a "nay" vote.
"The people of [San Luis Obispo] are judging this not based on the market analysis -- they're judging it directly based on the threat that they see to their health and safety, and I don't think that's going to change," said Eddie Scher, spokesman for ForestEthics, which has fought oil train infrastructure along the West Coast, including in Benicia and San Luis Obispo.
Phillips 66 has agreed to dial back the scope of its planned terminal from handling five oil trains weekly to just three. Both Phillips 66 and Valero have also pledged to use tank cars that exceed the latest federal regulations, but that has done little to assuage worries about the risk of an explosion or spill from each mile-long train.
In 2013, the same year the Benicia oil train terminal was proposed, a train hauling crude from North Dakota's Bakken Shale play jumped the tracks and exploded in Lac-Mégantic, Quebec, killing 47 people.
Feet to the fire
Since then, environmentalist and community groups have scrutinized new oil-by-rail developments, from the railroads that actually run the trains to tank car owners and terminal operators.
"The interest level is still very high, and there are still hotly contested fights going on around the country, especially in places like the Pacific Northwest and in California," said Fred Millar, a hazardous materials consultant who was worked with environmentalist groups including Friends of the Earth. "If you have an unloading facility being proposed, that gives the local county and the state some leverage" to deny a project or require extra safeguards, he added.
Federal law typically pre-empts efforts to block oil trains en route. Railroads must share general routing and volume information on "high-hazard flammable" trains such as those carrying crude, but the towns along rail lines ultimately have little say over the types of freight that can pass through. That's part of the reason why the Benicia and San Luis Obispo County rail proposals have drawn so much attention from all over the state -- other communities on Union Pacific Railroad's track network could be affected by any uptick in oil traffic.
What gets filled must be emptied, and organizers have applied that logic while taking aim at unloading terminals and rail-to-barge transfer facilities. Oil-loading stations haven't encountered as much local pushback because they have followed the geography of the shale drilling boom into areas generally friendlier to the fossil fuel industry.
By contrast, the Pacific Northwest is playing a "shutdown defense," in the words of one activist, putting up a so-called Thin Green Line against new oil developments. Tactics have ranged from the snarky -- such as an anonymous satirical website mocking a real Shell Oil Co.public relations effort -- to the staid, with legal challenges based on 1977 amendments to the Clean Air Act.
Refiners in the region have warned that rail facilities are crucial to their continued financial health. Firms including Shell and Valero have hinted that denying new infrastructure could lead to job losses and other negative economic impacts, if not outright shutdowns of certain refineries.
Ahmed Gaya, a volunteer organizer with Rising Tide Seattle, said his group would "absolutely not" stop protesting energy developments. He recalled dealing a "massive blow" to a proposed oil-by-rail facility at Shell's Puget Sound Refinery in Skagit County, Wash. Shell had received initial approval to build a rail spur for unloading one unit train of crude per day at the refinery, but a challenge from green groups brought the company back to the waiting room for a full environmental impact review in 2014 (EnergyWire, March 20, 2015). Regulators are still working on the environmental impact statement, leaving Shell's rail strategy in limbo.
"Shell's original plan for this project was to be well underway by now," Gaya said.
Existing crude-by-rail terminals in the same refining corridor have come under scrutiny, including a rail expansion at BP PLC's Cherry Point Refinery. "We have been looking into options to get those rolled back," Gaya said.
Meanwhile, environmentalists' worst fears for the region have yet to materialize. Despite a shift in federal policy to allow oil exports, the Pacific Northwest has not become a hub for crude supplies bound for Asian markets, in part due to the glut of crude globally and sluggish demand from China.
Still, the export issue "has kept people's feet to the fire in the Northwest," Millar said. If prices bounce back, "they know they are the likely route for oil from North Dakota and Montana."
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(ACC Mentioned) Ethanol to n-Butanol in the Land of 10,000 Lakes
Feb 16, 2016 | Biomass Magazine
By Katie Fletcher
Bushels of corn have served as feedstock for Central MN Ethanol Co-op LLC’s dry mill plant since 2002, but those days are soon coming to an end. Toward the end of March, ethanol production will cease at the 21-MMgy plant. Corn will still find its way to the Little Falls, Minnesota, site, but rather than ethanol and dried distillers grains production, the corn’s sugar will make biobased solvents n-butanol and acetone. U.K.-based Green Biologics Ltd., an industrial biotechnology and renewable chemicals company, acquired the ethanol plant in December 2014, renaming it Central MN Renewables LLC. “The Little Falls location was selected for its ideal location relative to our feedstock, which is corn,” says David Anderson, global vice president of marketing with GBL. “This will be the first renewable n-butanol plant in the U.S., and we do have plans to build at future locations.”
Although this will be the company’s first commercial plant in the U.S., GBL has a one-thirtieth-scale demonstration plant in Emmetsburg, Iowa, and a pilot plant in Gahanna, Ohio, near Columbus. “When proving out technology, you start with bench lab, then you step it up multiple sizes to a pilot plant, then to a demonstration plant and then you reach commercial capability,” says Dana Persson, GBL president of North America, during an interview from the construction site. “I am sure the next plant will be even larger than this one.”
Anderson says GBL is already in the process of identifying a second plant in the U.S., but the current focus is on starting up this first plant. Following the site acquisition, the company completed permitting in late August and groundbreaking shortly thereafter, enabling the project to remain on track to become operational during the third quarter this year. Despite conditions that often accompany a Minnesota winter, construction crew members are busy on-site, evidenced by the all-too familiar sound of construction vehicles using their back-up beepers, audible even beyond Persson’s office window.
As part of the retrofit, he says, the plant requires some additional equipment and building infrastructure, including slightly different distillation equipment than what is currently installed at the facility. Even so, the key components of the equipment and existing infrastructure fit in “pretty well,” Persson explains, with the new manufacturing process being readied for deployment. “This plant made sense for Green Biologics because you have existing grain handling and storage facilities, fermentation assets, water treatment capabilities, and the supply chain is already in place,” he says. “If they were going to start from a Greenfield operation, they’d have a much larger investment than what they will have with this plant.”
Persson adds that the feedstock supply will be “no different than what we do today” and come from area corn suppliers. “Prior to being purchased by GBL, the ethanol plant was a cooperative, so many of those corn suppliers were shareholders who have a long history with the plant,” he says. “Some of those same farmer shareholders and others invested in the new plant as well.” Area growers and the state have demonstrated support of the CMR project, Persson says, including the Minnesota Department of Employment and Economic Development and the Minnesota Department of Agriculture, which awarded the project $500,000 in state Next-Gen funding last year.
Besides utilizing the current feedstock supply chain, all of the ethanol plant’s existing infrastructure will be leveraged, Anderson says, with the addition of the company’s advanced fermentation process (AFP) that can convert a wide range of feedstocks into green chemicals such as n-butanol, acetone and, through chemical synthesis, derivatives of butanol and acetone. The platform combines the AFP with proprietary Clostridium microbial biocatalysts and synthetic chemistry. Anderson says the company’s key markets for its products include paints and coatings, adhesives, inks, personal care, cosmetics and fragrances. GBL is currently seeking customers for its commercial facility. “We are actively negotiating supply agreements with numerous partners,” Anderson says.
In November, shortly after breaking ground on the ethanol plant retrofit, GBL received approval for membership to the American Chemistry Council. “This raises our credibility as a true specialty chemicals company,” Anderson says.
The facility currently endures its growing pains as it’s readied for retrofit. “The focus of my office right now is making sure this plant is ready on time and on budget, and people are brought on and trained properly so that we are ready to produce renewable chemicals,” Persson says. -
'Heads Are Still Spinning' After Scalia's Death, SCOTUS Ruling
Feb 16, 2016 | E&E Climatewire
By Elizabeth Harball and Emily Holden
The death of Supreme Court Justice Antonin Scalia has jolted state leaders mulling the future of U.S. EPA's Clean Power Plan.
Already knocked off balance by last week's surprise Supreme Court decision to freeze the federal climate change regulations, officials yesterday said Scalia's death -- and the questions his absence from the bench raises for the regulation -- has left them reeling and uncertain about the plan's future.
"I think it's taken everybody by surprise," said Washington Utilities and Transportation Commissioner Phil Jones. "It's like a one-two punch to the gut."
The Obama administration's crackdown on power-sector carbon emissions was already a political minefield for states, most of which were nonetheless strategizing ways to comply with the regulation. But for state energy and environment regulators, the topsy-turvy week has raised a host of new uncertainties.
Opponents of the Clean Power Plan saw last Tuesday's stay decision as a sign the Supreme Court might strike down the rule. Scalia was among the five justices who voted to put the regulation on hold, and he also was expected to vote against its legality.
Now the regulations' success could depend on his replacement. All eyes are on a brewing battle between the Obama administration and Senate Republicans who have said they will refuse to approve a nominee to take Scalia's spot until after the presidential election (EnergyWire, Feb. 16).
"Much more than ever before, [the Clean Power Plan's fate] entirely depends on the presidential election," said Travis Kavulla, president of the National Association of Regulatory Utility Commissioners, which is meeting this week in Washington, D.C. "It seems less likely with Justice Scalia's passing that the rule is somehow vacated."
Kavulla added, "One way or another, clearly there's a lot more uncertainty associated with the Clean Power Plan than there was before."'
Pencils down,' for now
Scalia's death has complicated states' political calculus on whether to keep up Clean Power Plan discussions.
Some state leaders have already put their planning efforts on hold. But EPA's supporters warn that they risk falling behind if the rule is upheld.
Bill Becker, executive director of the National Association of Clean Air Agencies, argued to an audience of state environment, air and electricity regulators last week in Washington, D.C., that carbon limits are inevitable, whether or not they are ultimately manifested by the Clean Power Plan.
"If you think the Clean Power Plan is the last step, it's not," Becker said.
Others say such efforts are a waste.
Wisconsin Gov. Scott Walker (R) issued an executive order yesterday prohibiting state agencies from doing any work to prepare for the Clean Power Plan until the stay expires. Citing "undue burden" on state ratepayers and manufacturers, he argued that the rule could have a "devastating impact."
West Virginia Attorney General Patrick Morrisey (R) on Friday sent a letter to leaders of the National Association of Regulatory Utility Commissioners and the National Association of Clean Air Agencies urging them to call state regulators to "put their pencils down."
"We want to ensure that States understand that there is no legal obligation to continue to spend taxpayer funds on compliance efforts and that, in the unlikely event the Power Plan is ultimately upheld by the courts more than a year from now, there will be ample time then to restart those efforts," the letter said.
For some states, full speed ahead
Meanwhile, the Supreme Court opening means certain energy interests are likely to increase pressure on states to stop Clean Power Plan compliance talks.
Paul Bailey, vice president of federal affairs for the American Coalition for Clean Coal Electricity, said when he first heard of Scalia's passing, he "frankly thought it was a joke."
After the court stayed the rule, Bailey said he was "very optimistic" it would not survive judicial review. Now he is slightly less sure but said he still believes states should halt their planning processes.
State-level conflicts about whether or not to continue preparing for carbon cuts have already cropped up. In Pennsylvania, Department of Environmental Protection Secretary John Quigley confirmed Friday that his office will continue to develop a compliance plan even though EPA can no longer require states to do so.
"We have decided not to change our pace or our trajectory," Quigley said.
He added, "Whether or not we have a Clean Power Plan, we are going to see retirements of coal plants and continued strength and growth in the gas sector, continued growth in the renewable energy sector, so continuing to plan for this new energy future just makes sense."
But Pennsylvania Coal Alliance CEO John Pippy, a leading advocate for the coal industry there, argued that there are "serious concerns regarding the resources that will be wasted attempting to develop a compliance plan, at the expense of the taxpayers, for a rule that may be significantly altered or thrown out by the Federal Courts."
On Friday in Richmond, Va., a Clean Power Plan group of industry and advocacy interests forged ahead with a scheduled planning meeting.
"The only thing that really makes sense to us is to continue on the path that we're on, to evaluate the different options," said David Paylor, director of Virginia's Department of Environmental Quality.
Multiple attendees suggested that the process should slow down or focus more broadly on carbon reduction options. Paylor said it was too early to say whether planning timelines might change.
Some say plan ... for something
Most state leaders are still consulting lawyers and trying to figure out what the stay and Scalia's death mean.
"A lot of heads are still spinning," said NARUC President Kavulla.
Kavulla, a Montana electric regulator and a critic of the rule, was a strong advocate for states to plan to meet EPA's requirements, regardless of legal uncertainty.
But following the stay, Kavulla said states should focus on more general carbon reduction strategies instead.
"I don't think it makes much sense to comply with the mundane mechanics of a regulation that's stayed," he said. "But it does make a lot of sense, as it always has, to plan for carbon price risks and to talk about low-carbon technologies."
Asim Haque, an Ohio electric regulator, said his state's leaders haven't decided whether to continue Clean Power Plan compliance discussions. But Haque agreed with Kavulla that the work should continue in some form.
"I am a lawyer, and I know that until a regulation has been fully struck [down], you've got to really continue to look at what your potential compliance would look like," Haque said. "There is certainly momentum for cleaner energy, so whether it's the CPP or something else, you have to believe that the concept of CO2 emission reductions will come up in another context."
Utilities between a rock and a hard place
As states diverge, electric utilities could be stuck in the middle.
"We're split now because we have the Rocky Mountain states in the West saying, 'Don't do any more activities,' and you have the West Coast states saying, 'Go forth, don't slow down,'" said Washington commissioner Jones. "That makes it a little bit complicated for a utility like Pacific Power. It operates in three Rocky Mountain states and three West Coast states."
Jones said the way around this conundrum is to "focus on nonpartisan non-CPP issues and just say, 'It's not CPP compliance, but here's what we're going to do.'"
If some states drop off from regional Clean Power Plan discussions, others may be left trying to figure out who could be potential carbon trading partners should the rule survive.
"This might be a short-term problem because the stay's only just happened," said Richard Sedano, director of U.S. programs for the Regulatory Assistance Project. "People are still figuring out who's who. Once the states sort of self-identify with each other, they'll find each other. And they might do it publicly and they might do it privately."
Sedano said because the rule may prevail, it's a risk for states to remove themselves from compliance conversations.
"It may disadvantage the state if new trading systems become hard to break into once they're created, but on the other hand, states could create them with the idea of adding new members," Sedano said.
As states diverge, electric utilities could be stuck in the middle.
"We're split now because we have the Rocky Mountain states in the West saying, 'Don't do any more activities,' and you have the West Coast states saying, 'Go forth, don't slow down,'" said Washington commissioner Jones. "That makes it a little bit complicated for a utility like Pacific Power. It operates in three Rocky Mountain states and three West Coast states."
Jones said the way around this conundrum is to "focus on nonpartisan non-CPP issues and just say, 'It's not CPP compliance, but here's what we're going to do.'"
If some states drop off from regional Clean Power Plan discussions, others may be left trying to figure out who could be potential carbon trading partners should the rule survive.
"This might be a short-term problem because the stay's only just happened," said Richard Sedano, director of U.S. programs for the Regulatory Assistance Project. "People are still figuring out who's who. Once the states sort of self-identify with each other, they'll find each other. And they might do it publicly and they might do it privately."
Sedano said because the rule may prevail, it's a risk for states to remove themselves from compliance conversations.
"It may disadvantage the state if new trading systems become hard to break into once they're created, but on the other hand, states could create them with the idea of adding new members," Sedano said.
Reporter Peter Behr contributed.
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Backers of Obama Carbon Rule See Window in Supreme Court Rebalancing
Feb 16, 2016 | E&E Energywire
By Ellen M. Gilmer
The death of U.S. Supreme Court Justice Antonin Scalia has sparked a tidal wave of speculation over what a rebalancing of the court and political chaos around Scalia's replacement means for U.S. EPA's Clean Power Plan.
Scalia, 79, was famous for his strict interpretation of the Constitution and aversion to programs aimed at expanding the reach of the executive branch. He stuck with the court's conservative wing last Tuesday in a 5-4 decision freezing the Obama administration's landmark climate program while legal challenges move forward in the U.S. Court of Appeals for the District of Columbia Circuit.
Some legal experts saw the decision as ominous, speculating the same majority would ultimately strike down the rule.
Now, without Scalia, the high court is split between the liberal wing -- Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor -- and the conservative wing -- Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and perennial swing vote Anthony Kennedy.
"It's a potential game-changer," Columbia Law School professor Michael Gerrard said. "The odds of the Clean Power Plan ultimately surviving judicial review have gone up significantly."
The Supreme Court's hold on the climate rule scrambled conventional wisdom about how legal challenges would play out in the early stages. It recharged the well-organized opposition to President Obama's use of the Clean Air Act to force electric utilities to cut carbon dioxide emissions.
Efforts to fill Scalia's seat have already sparked a political battle expected to dominate this election year. Obama announced plans to nominate a new justice "in due time," but Senate Republican leaders have signaled their opposition, saying Obama should defer to his successor.
The strategy is considered a gamble. If the Senate successfully blocks a nominee and a Republican wins the presidency, the GOP may get the conservative justice it wants. But if a Democrat takes the White House, the president-elect's Supreme Court nominee could be a tougher pill to swallow than any moderate liberal Obama is expected to choose. And the fate of many major cases heading to the high court hangs in the balance.
"The CPP will get there eventually," Dorsey & Whitney LLP attorney James Rubin said, "and the question will be: How many justices are there, and who are they?"
Here's how the potential scenarios play out for the climate rule.
Option 1: A new liberal-leaning justice
A new liberal-leaning justice on the Supreme Court is the most favorable plot for defenders of EPA's Clean Power Plan, who say a rebalancing of the court could mean new life for the rule after last week's legal setback.
"There were four strong dissents," Environmental Law & Policy Center Executive Director Howard Learner said. "Clearly Justice Scalia's unfortunate passing shifts the balance on the court, depending on the next appointment. Had Justice Scalia not voted on the stay motion, it would have been declined in a 4-4 vote."
If the Supreme Court ultimately takes up the case and the justices split on ideological lines, a 5-4 decision would uphold the rule. But those are big ifs, said Bracewell LLP attorney Scott Segal, who is representing energy groups challenging the climate rule.
"I don't think mere ideology is enough to resolve the issue," he said. "There are statutory, constitutional and practical arguments that are all before the court, and those don't go away."
If the court does become more liberal, Kennedy remains a crucial wild card. Though the moderate justice joined the conservative wing in voting for a stay of the Clean Power Plan, his vote on the merits of the case is still considered uncertain (EnergyWire, Feb. 11).
He could even wield power over whether the court agrees to take up an appeal at all. Kennedy could view a D.C. Circuit decision upholding the rule and decide he no longer has legal concerns about it. He could then join with the liberal justices to block the conservative wing from taking up the case. Stranger things have happened, experts say, but the Supreme Court will likely want to leave its imprint on the Clean Power Plan no matter who's on the bench.
"This is such an important case -- the Clean Air Act with greenhouse gases -- I would have a hard time thinking the Supreme Court wouldn't take a pass at this one," Rubin said.
Another unknown with many contingencies: the impacts of an appointment of short-listed D.C. Circuit Judge Sri Srinivasan, who is on the appellate panel considering the Clean Power Plan case. If nominated, it's unclear whether the judge would recuse himself from D.C. Circuit arguments -- opening the possibility of a more conservative judge on the panel -- or, if confirmed, later recuse himself from Supreme Court consideration of the case.
Option 2: A new conservative-leaning justice
Clean Power Plan opponents have the best prospects if another conservative justice is appointed to the court. This will likely happen if the Senate successfully blocks an Obama appointee and a Republican takes the White House.
In that case, the ideological balance on the Supreme Court remains roughly the same. UCLA School of Law professor Ann Carlson noted, though, that Scalia is a tough act to follow, and a conservative successor may not have the same impact.
"I suspect that Justice Scalia was very forceful in persuading his colleagues to grant the stay," she said. "What happens when you lose Justice Scalia's influence, even on decisions about whether to grant cert?"
While Scalia was known for scathing dissents in many high-profile cases before the court, he often found himself in the majority in environmental cases, writing several landmark decisions that shaped environmental law (Greenwire, Feb. 15).
Rubin added that it's not certain a conservative appointee to the court would align ideologically with Scalia.
"Scalia was very unique because he wore his opinions on his sleeve. On the Clean Power Plan, he would have come out punching," he said. "If they have someone just like that, it would be the same as if the court had not changed. But the court could come out different."
Former Justice David Souter, for example, was appointed by President George H.W. Bush but ended up joining ranks with the court's liberal wing.
Conversely, he noted, a new liberal appointment to the court -- likely relatively moderate unless Democrats take the White House and the Senate next year -- doesn't guarantee a predictable vote.
"A liberal appointment of a liberal judge does not always mean a liberal justice on the court," Rubin said.
Option 3: A long vacancy
A third possibility for the Supreme Court is that no new justice is confirmed before the court takes up the Clean Power Plan. If the Senate blocks Obama's nominee and wrangles over the next president's nominee, the court could be down one justice well into next year.
Along ideological lines, an eight-justice court is considered favorable for the carbon rule. If the Supreme Court reaches a 4-4 split on appeal, no new precedent is set and the lower court's decision stands, unless the court decides to have the case reargued when a new justice is appointed. The Clean Power Plan's advantage in a split decision depends on the D.C. Circuit upholding the rule -- which is not guaranteed but generally anticipated.
"The mainstream view among Democratic appointees to the bench is likely to remain one of deference," Carlson said. "With that said, the Clean Power Plan is a pretty unusual regulation. It's massive, it's complicated."
An eight-justice court would also put additional attention on Kennedy. If he joined the liberal wing of the court on the merits, the 5-3 vote would be precedential -- meaning other courts would have to accept the legal conclusions when facing similar questions.
But Segal, the industry lawyer, warned against viewing an ideological split or a repeat of the stay decision as a foregone conclusion.
"Who even knows if it would be a 4-4 at the Supreme Court," he said. "Some of the justices who opposed a stay might still have legal misgivings about the rule, but just didn't think it met the test for a stay."
Segal also noted the prospect of the D.C. Circuit affirming a portion of the rule, like EPA's general authority under the Clean Air Act, and rejecting another, like the agency's "beyond the fenceline" approach to regulation. In that case, the exact legal question presented to the Supreme Court could change the tide of an ideological breakdown, he said.
"Do they take the middle course, and if they do, how does a divided Supreme Court or a newly impaneled justice view that?" he asked. "It's not knowable because we don't know what orientation the rule will be in by the time it hits the Supreme Court."
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Possible Obama Picks Lean Left on Environment
Feb 16, 2016 | E&E Greenwire
By Robin Bravender
With speculation over the next Supreme Court nominee running rampant, potential nominees' records on environmental issues and other hot-button topics are drawing scrutiny.
Whoever replaces the late Justice Antonin Scalia stands to play a major role in legal battles over high-stakes environmental regulations including U.S. EPA's Clean Power Plan, the Clean Water Rule and tightened air restrictions on ozone. Beyond potentially casting decisive votes on President Obama's environmental legacy in the short-term, the new justice is certain to influence environmental law for decades to come.
It's uncertain whether Obama's pick to replace Scalia, who died last weekend, will get confirmed by the Republican-led Senate that's already announced its opposition to an election-year confirmation (see related story). But Obama has said he'll nominate someone for the coveted seat, whose next occupant could tip the divided court's ideological balance.
As rumors fly about Obama's short list, legal experts are digging into the records of the judges and politicians who have been mentioned as possible picks, hunting clues about what their nomination might mean for environmental issues.
Many high-court prospects "seem unlikely to have a strong bias in either direction" on environmental issues, said Todd Aagaard, vice dean and professor at Villanova University School of Law. "Few federal judges these days have a strong outcome-oriented approach that favors environmental advocates," he added.
Judges appointed by the Obama and Clinton administrations have shown "a willingness to accept environmental regulation" when the agency has properly documented its decision, Aagaard said. "While all of the nominees would give environmental advocates a fair shot, I doubt any of them would automatically incline to favor the 'pro-environmental' side in a case."
Jonathan Adler, a professor at the Case Western Reserve University School of Law, said he expects Obama to select someone with a "moderate reputation," given the steep political hurdle of getting a nominee confirmed this year.
"That doesn't mean," Adler said, "that he's going to pick someone that would actually be a swing vote."
Here's a look at some of the possible nominees' records on the environment:
Sri Srinivasan
The U.S. Court of Appeals for the District of Columbia Circuit judge is on just about every list of hot prospects for the nomination. He's young -- 48 years old -- which means Obama would be picking a nominee who could affect the court for several decades. The Senate confirmed him by a vote of 97-0 in 2013 for the D.C. Circuit, which could make it tough for the chamber to now oppose his nomination to the high court. He would also be the first Indian-American to serve on the court.
Credentials: Prior to being picked for the D.C. Circuit, he was principal deputy solicitor general during the Obama administration. He previously worked for the law firm O'Melveny & Myers LLP and was a law clerk for former Supreme Court Justice Sandra Day O'Connor.
Environmental footprint: Since he's a relative newcomer to the D.C. Circuit, Srinivasan doesn't have a long track record when it comes to environmental opinions. He is on the three-judge panel slated to hear oral arguments over the administration's Clean Power Plan. That panel also refused requests to block the rule while the litigation went forward.
Loretta Lynch
The Obama administration's 56-year-old African-American attorney general is another widely named possibility. Supreme Court expert Tom Goldstein called Lynch "the most likely candidate" in a blog post this week. "I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process," Goldstein wrote. "Either eventuality would motivate both black and women voters."
Credentials: Before she was sworn in as attorney general last April, Lynch was U.S. attorney for the Eastern District of New York during both the Obama and Clinton administrations. From 2002 until 2010, she was in private practice at Hogan & Hartson (now Hogan Lovells) in the firm's New York office.
Environmental footprint: Lynch is best known for her work on criminal cases, not environmental issues. But as the government's top attorney, she now oversees all of the work at the Justice Department, including ongoing environmental cases involving the administration. If she were on the Supreme Court, she may recuse herself from all the major environmental cases the agency is now working on, including battles over the Clean Power Plan and the Clean Water Rule.
Paul Watford
The 48-year-old judge on the 9th U.S. Circuit Court of Appeals is seen by many as an attractive pick for Obama. He's African-American, and Goldstein wrote that Obama may be "very tempted to appoint a black Justice to the Court." He was also confirmed by the Senate in 2012 by a vote of 61-34, Golstein wrote, with the support of nine Republicans. "That gives the Administration considerable ammunition to argue publicly that Republicans, by refusing to process the nomination, are blocking someone who is recognized to be qualified."
Credentials: Prior to his 2011 nomination to the 9th Circuit, Watford was a partner at Munger, Tolles & Olson in Los Angeles. He previously worked at Sidley & Austin's Los Angeles office and was assistant U.S. attorney in the Central District of California. He clerked for 9th Circuit Judge Alex Kozinski, a Reagan appointee, and then for liberal Justice Ruth Bader Ginsburg on the Supreme Court.
Environmental footprint: Watford hasn't been on the court long enough to develop an extensive environmental track record, according to legal experts. In one 2013 opinion, Watford dissented from two other judges in an opinion that sided with the Interior Department in a case over a California oyster farm's lease (E&ENews PM, Sept. 3, 2013).
Patricia Millett
The 52-year-old D.C. Circuit judge is seen as another rising legal star in Democratic legal circles. She was confirmed by the Senate by a vote of 56 to 38 to join the appeals court that's often seen as a feeder to the Supreme Court.
Credentials: Millett led the Supreme Court and appellate practices at Akin Gump Strauss Hauer & Feld and worked for 11 years as an assistant in the solicitor general's office. She was previously on the appellate staff of the Department of Justice's civil division and clerked for 9th Circuit Judge Thomas Tang. Her court biography also notes that she holds a second-degree black belt in taekwondo.
Environmental footprint: On the D.C. Circuit, Millett has heard a series of environmental cases. In 2014, she penned an opinion that struck down two George W. Bush-era hazardous waste policies that greens argued were too lax (Greenwire, June 27, 2014). Also in 2014, she wrote an opinion rejecting an electronic component maker's effort to remove its controversial former North Carolina manufacturing facility from EPA's Superfund cleanup program (Greenwire, July 8, 2014).
Kamala Harris
California's Democratic attorney general is frequently cited in the nomination rumor mill. She's 51 and was the first woman to be elected to be California's top attorney. She's the daughter of an Indian mother and a Jamaican father. Goldstein wrote of Harris that if she "wanted the job, I think it would be hers." But he doesn't think she does, given that she's the "prohibitive favorite" to win retiring Sen. Barbara Boxer's seat in 2016 and is "well positioned" to potentially be president herself.
Credentials: She was first elected attorney general in 2011 and re-elected in 2014. She served two terms as San Francisco's district attorney, was head of the San Francisco city attorney's division on children and families, and led the career criminal unit in the San Francisco district attorney's office.
Environmental footprint: Harris has been helping to lead states' defense of the Clean Power Plan; California is one of 18 states backing EPA in the lawsuits challenging the rule. Adler of Case Western predicts that "she would be a very liberal justice," although she might view some issues differently as a judge instead of an advocate. She may take the position as a judge that states should get a lot of leeway when it comes to whether state-level climate policies are pre-empted, Adler said, which is a big issue on the high court's horizon.
Merrick Garland
The D.C. Circuit's 63-year-old chief judge has long been named as a possible Obama Supreme Court nominee, but the fact that he's older than many of the other prospects could now count against him.
Credentials: First appointed to the court by President Clinton in 1997, Garland has been chief judge since 2013. He previously held several high-ranking Justice Department jobs, including principal associate deputy attorney general from 1994 until 1997. He was also a partner at the law firm Arnold & Porter and clerked for former Supreme Court Justice William Brennan Jr.
Environmental footprint: Recently, Garland was on the split panel that upheld EPA's mercury rule for power plants. That decision was rejected by the Supreme Court and sent back to the D.C. Circuit, and Garland was among the judges that agreed to leave EPA's rule in place while the agency tweaks the problems flagged by the high court (Greenwire, Dec. 15, 2015). Adler said of Garland that "he tends to be more deferential to agencies" than some of his conservative colleagues, "but he's no rubber stamp."
Jacqueline Nguyen
The 50-year-old Vietnamese-American 9th Circuit judge has also been in the mix of potential nominees for several years. She sailed through Senate confirmation in 2012 by a vote of 91-3.
Credentials: Nguyen was a U.S. district judge in the Central District of California in Los Angeles prior to her nomination to the 9th Circuit. She was previously a judge on the Superior Court of the County of Los Angeles and worked in the U.S. attorney's office in the Central District of California.
Environmental footprint: In 2014, Nguyen authored the 9th Circuit opinion siding with the Obama administration and rejecting an Alaskan moose hunter's bid to use his hovercraft in a national refuge (E&ENews PM, Oct. 6, 2014). An appeal in that case is now pending before the Supreme Court. In another 2014 decision, she wrote the court's unanimous decision throwing out an EPA air pollution permit for a proposed California natural gas power plant, finding that it did not meet the agency's air quality standards at the time it was issued (Greenwire, Aug. 13, 2014). Last year, she sided against environmentalists in a decision backing the Interior's approval of Royal Dutch Shell PLC's oil spill response plans for drilling off Alaska's shores (Greenwire, June 12, 2015).
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EPA Rule Stay to Dominate Utility Regulators' D.C. Meetings
Feb 16, 2016 | E&E Climatewire
By Emily Holden and Rod Kuckro
The nation's utility regulators gather in Washington, D.C., this week for their annual winter meetings. While there is only one session over five days devoted to U.S. EPA's Clean Power Plan, what the Supreme Court's stay of the rule means for states is sure to dominate discussions on the sidelines.
Yesterday, experts on the nation's electricity grid provided regulators with guidance about how they can help with plans to comply with the EPA rule, in particular with regard to ensuring that reliability is not compromised.
The panel included Gerry Cauley, president and CEO of the North American Electric Reliability Corp.; Mike Kormos, executive vice president of the PJM Interconnection LLC; Clair Moeller, executive vice president of transmission and technology at the Midcontinent Independent System Operator Inc.; and Jim Robb, CEO of the Western Electricity Coordinating Council.
A discussion slated for today on EPA's carbon rule at the North Carolina Environmental Management Commission was struck from the agenda. Nine meetings in Nebraska communities planned by the Department of Environmental Quality on the Clean Power Plan have been postponed.
But the Minnesota Pollution Control Agency is moving ahead with its listening sessions on the EPA rule. Tonight's session with be at Bemidji State University. ClimateWire's Daniel Cusick will be reporting.
E&ETV today will air an interview with Public Service Enterprise Group Inc. President, Chairman and CEO Ralph Izzo, where he discusses how PSEG plans to navigate its clean energy goals moving forward.
California is moving ahead with its plans to use its cap-and-trade regulation for Clean Power Plan compliance. Staff of the Air Resources Board will release a white paper tomorrow on what needs to be done to the state's cap-and-trade regime to make it work with the Clean Power Plan. A workshop is planned a week later.
Also tomorrow, E&ETV will air an interview with Air Resources Board Chairwoman Mary Nichols, who will describe how California will not only stay the course but also stay on the timeline prescribed by the regulation.
In case you missed it:
The high-profile signing of the Paris climate agreement in New York City on April 22 will now take place under the cloud of last week's Supreme Court decision to stay the Clean Power Plan (ClimateWire, Feb. 12).Officials from blue, red and purple states signaled interest in continuing planning for power-sector carbon reductions, despite the Supreme Court ruling. EPA Administrator Gina McCarthy encouraged states that want to keep working to do so (EnergyWire, Feb. 12).
As a result of the Supreme Court's stay, the momentum that slowly built behind the Clean Power Plan in even reluctant states is already showing signs of flagging, raising concerns about whether the United States will be able to make meaningful reductions in greenhouse gases. 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 (ClimateWire, Feb. 11).
The stay of the 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 (EnergyWire, Feb. 11).
Critics of the Clean Power Plan were gleeful in the wake of the Supreme Court's unexpected move to freeze the rule. West Virginia's attorney general called the stay "historic" and a "monumental victory for West Virginia, the country and the rule of law" (Greenwire, Feb. 10).
The stunning Supreme Court decision has left state agencies scrambling. The high court's ruling throws open the door to a prolonged legal battle that could delay early decisions by states around how to meet federal emissions targets (ClimateWire, Feb. 10).
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PSEG's Izzo Discusses Utility's Investment Plans Following Court Stay
Feb 16, 2016 | E&E TV
Will utilities stay the course on clean energy investments following last week's Supreme Court stay of the Clean Power Plan? During today's OnPoint, Ralph Izzo, chairman, president and CEO of Public Service Enterprise Group, says his company will continue its conversation with the New Jersey government on planning for the rule. Izzo also discusses PSEG's goal to reduce energy consumption by 2 percent.
Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. With me today is Ralph Izzo, chairman, president and CEO of PSEG. Ralph, great to have you back on the show.
Ralph Izzo: Thanks, Monica. Good to be back.
Monica Trauzzi: So Ralph, in an unusual set of legal events surrounding EPA's Clean Power Plan, the Supreme Court has moved to grant a stay pending further legal challenges. This was considered a long-shot request even by the petitioners. How much of a surprise was the court's decision to you?
Ralph Izzo: It was a very big surprise to us. I was under the impression that it was the first time it had happened in many years, but I understand it's the first time it's ever happened. So we're digesting the information, trying to understand what it means for timing, but my approach will be that we work on the things that we control and the things we don't control we just stay informed.
Monica Trauzzi: So then how does this affect your company's planning with regards to investments on clean energy and emissions reduction?
Ralph Izzo: Well New Jersey has a fairly aggressive -- ambitious I should say, not aggressive -- renewal portfolio standard. It's always been a leader in energy efficiency and various other things that try to balance the need for providing electricity in as environmentally benign a way as possible while paying attention to customer bills. So we'll continue down that path. We've invested close to $1 billion in solar energy as a company alone. In New Jersey we've invested over $300 million in energy efficiency, just our company, and we'll just continue marching down that path.
Monica Trauzzi: But the power plan provides a certain level of structure and perhaps aggressiveness that is not currently in place. Would you like to see New Jersey stay on that course, and will you be pushing the state and pressing the state to sort of stay on this planning phase?
Ralph Izzo: Well I think that we'll continue the discussions that we're having with the state. I think there are so many places where we see eye-to-eye with the state that we'd like to see the current version of the CPP improve. For example, we don't think nuclear gets enough recognition in the plan, and New Jersey produces over 50 percent of its electricity using nuclear power. We have very little coal in the state. We own the only two coal plants in the state and they ran in the low single digits in terms of their capacity factor, the frequency with which they ran, and many times when they did run we ran them on natural gas. So I think the state 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 kind of thrown up in the air.
Monica Trauzzi: And New Jersey was one of those states that petitioned the high court for the stay. Does the court's decision then give weight to DEP Commissioner [Bob] Martin's criticism of the rule? He's been very critical.
Ralph Izzo: He has been very critical. The details of his criticism I believe have been look at what New Jersey is doing, and yet some of the targets in the CPP make it virtually impossible for us even though we've had this great track record to achieve that. I believe the state also questioned EPA's legal authority to implement the rule. Candidly we've stayed out of the detailed legal debate.
What we've said is we have a great track record in the state of reducing carbon emissions. We have a great track record as a company of reducing carbon emissions. We firmly believe that carbon emissions need to be reduced. We do believe climate change is a serious issue. All the signs point to that. So what we've said is let's just keep marching on the path we've been on.
Monica Trauzzi: So it's difficult to predict these things, but ultimately do you believe that this could be the beginning of the end for the power plan?
Ralph Izzo: No I don't. I'd always predicted to folks that this is not going to be decided anywhere but at the Supreme Court. What is interesting about the timing of what this introduces of course is that it takes probably the final legal debate into 2018 or certainly the end of '17, which is the next presidency and the next administration. So it calls into question what that would portend for the rule, but climate change is real and action needs to be taken. It's not going to wait for us to get our legal or political act together. So I just think it's a question of timing, but not a question of if.
Monica Trauzzi: So let's talk about some of the actions that you're taking. In a new white paper you talk about fairness in the level of access to technology and innovation for customers at all income levels. Why is that such a critical element to New Jersey's future energy success?
Ralph Izzo: So many states, New Jersey among them, have programs to help subsidize various things that aren't taking place in terms of the market reacting of its own accord, the reason being because we don't have an explicit price on carbon. So we haven't priced in climate change impacts to power markets, so for that reason many consumers are not incented to do things that they should be incented to do. Adding on top of that some of the solutions to climate are not only not less expensive than alternatives, but they are actually more expensive than alternatives, for example rooftop solar in New Jersey.
So we have a situation where many of our programs create explicit subsidies to people to make these investments, and the people who make the investments are typically folks with high disposable income. So the average American household makes $50,000 a year. The average New Jersey household makes $70,000 a year. The average rooftop solar installation in New Jersey is at $115,000 and that's driven by economics off of an investment tax credit and a solar renewable energy credit being paid for by the people at those other income levels I mentioned.
So what we've said is we're not opposed to subsidies. There are subsidies throughout the energy industry. There are subsidies in coal, there are subsidies in nuclear, there are subsidies in renewables, but let's think about the design of the subsidies and do we really want them to be so regressive? Our solution is to take that subsidy and deploy utility capital because we will then be able to target it to those customer segments that policymakers think are better suited for the subsidies, which I would say would be government buildings, low-income customers and people of that sort.
Monica Trauzzi: And then in terms of reducing energy consumption you talk about doing it by 2 percent?
Ralph Izzo: Right. So energy efficiency is the trifecta, if you'll excuse my use of the horse racing expression. The environment can win, the customer can win, and the shareholder can win. You can install energy efficiency measures at or below the cost of fuel, and utilities are not in the fuel business. So if we can do that, we can earn a return on that investment, whether it's a light bulb, a smart thermostat, whatever technology the providers can bring to the table, reduce our cost of goods sold, and reduce the cost to the customer.
So we would be indifferent as to whether investing in smart thermostats or transformers, if that can provide the same level of service to customers, if we can recover our fixed costs. So there's a regulatory system. The details I just laid out were I realize pretty sketchy, but we have this on paper whereby all three can win: customer, shareholder and environment.
Monica Trauzzi: But there are challenges. What are the challenges that you see for bringing this kind of ...?
Ralph Izzo: The challenge is if any one of those three parties gets overly greedy. So if the environmental constituencies say "We not only want to do the things that are obvious no-brainers, but we want to go above and beyond that," that will raise the customer bill. If the customer says, "We don't want to pay for fixed cost recovery. We want all of the savings associated with that energy efficiency measure," then really we have a huge fixed asset base that we would be stranding, and if we were to say we want all of our costs recovered, not just our fixed but our old variable as well as to be paid for energy efficiency, then the customer bill doesn't go down. But if everyone is willing to accept part of the pie, the pie is big enough for everyone involved.
Monica Trauzzi: Beyond the power plan, what regulations would be needed to incentivize utilities to be more efficient and adopt overall cleaner energy portfolios?
Ralph Izzo: So much of this is state by state, so this is not a demand-response issue that was recently decided by the courts that is for jurisdictional. This really is a retail rate design issue, and as I mentioned before we've had success in New Jersey. We've had approval to do now $400 million worth of energy efficiency, but it's only our most recent approval, the last $100 million where we can get this fixed cost recovery. We would love to do hundreds of millions more because there's plenty out there to be done.
Monica Trauzzi: Where do you see the greatest opportunities for economic growth and job growth that's energy-related in New Jersey?
Ralph Izzo: So it really comes in two different categories. No. 1 is in the craft skills associated with making the grid more resilient, and I use that word deliberately because the grid is already reliable. Reliable to me means the lights stay on, on a day like today where it's bright and sunny. Resilient means the lights stay on, on days like we had two weeks ago, when 24 inches of snow get dumped on us. So the craft skills associated with that is something that we are constantly investing in, hiring.
The second is that it's a lower-skilled type of work, but the energy efficiency work, simple installation of the types of things I mentioned before, auditing of customer premises, households, businesses, to see what they can benefit from. So you'd be able to bring in a whole set of workers that right now probably are doing other low-skilled jobs in other industries.
Monica Trauzzi: All right. We'll end it right there. Thank you very much. Thanks for your perspective on all things power plan related.
Ralph Izzo: My pleasure.
Monica Trauzzi: I appreciate you coming on the show, and thanks for watching. We'll see you back here tomorrow.
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U.S. Will Sign Paris Agreement and Stick to It - Stern
Feb 16, 2016 | Reuters (In the New York Times)
The United States will sign the Paris Agreement on climate change this year regardless of the Supreme Court's decision to put a chunk of President Barack Obama's environmental action on hold, the U.S. climate envoy said on Tuesday.
Todd Stern also said that Obama's successor, even if it is a Republican, would be unlikely to scrap the Paris deal as to do so would have negative diplomatic implications.
The U.S. Supreme Court this month put on hold regulations to curb carbon dioxide emissions mainly from coal-fired power plants, prompting speculation the United States and other nations could delay formal signature of the Paris Agreement, reached in December.
Stern told reporters in Brussels he was confident Obama's Clean Power Plan would survive.
"It is entirely premature, really premature to assume the Clean Power Plan will be struck down but, even if it were, come what may, we are sticking to our plan to sign, to join," Stern said.
"We're going to go ahead and sign the agreement this year."
Asked about the risk that a Republican successor to Obama might reject the Paris Agreement, Stern said the situation differed from when Republican President George W. Bush dropped the Kyoto Protocol, the predecessor to the Paris deal.
President Bill Clinton's administration had negotiated and signed the 1997 Kyoto Protocol - which in contrast to the Paris deal omitted big emitters China and India - but never submitted it to a hostile Senate for ratification.
Stern said the Kyoto deal had been a relatively flawed document and, even so, Bush had taken "lots and lots of diplomatic flak".
"Paris was seen as such a landmark, hard-fought, hard-won deal that, for the U.S. to turn round and say we will withdraw, that would inevitably give the country a kind of diplomatic black eye that I think a president of any party would be very loath to do."
Stern was in Brussels for talks with European Climate and Energy Commissioner Miguel Arias Canete on follow-up action to the Paris deal.
The Commission said that it would be "prominently represented" at a meeting hosted by U.N. Secretary-General Ban Ki-moon on April 22 in New York, formally opening the Paris Agreement for signatures.
"We have confidence in all countries to deliver on what they promised. The EU will continue to lead by example and enshrine its targets into law," Arias Canete said.
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EPA's Objection To Utility Air Permit's SSM Exemption Might Set Precedent
Feb 16, 2016 | InsideEPA
By Stuart Parker
EPA's objection to a Clean Air Act permit for a Texas power plant over a provision that relaxed the utility's mandate to comply with emissions limits during periods of startup, shutdown and maintenance (SSM), excluding malfunctions, sets a precedent that could spur a push to scrap similar provisions in other permits, environmentalists say.
The agency on Feb. 3 announced its objection to the Title V operating air permit that Texas issued in 2014 for the Southwestern Electric Power Company's H.W. Pirkey power plant in Harrison County, TX. The permit includes provisions from a previous 2012 permit that critics say provide a regulatory exemption from limits on opacity -- a measure of visible fine particulate matter (PM2.5) -- and other PM2.5 limits during SSM periods.
EPA Administrator Gina McCarthy in the permit objection says the Texas Commission on Environmental Quality (TCEQ), which issued the federal permit under delegated authority, must now revise it. "EPA finds that the 2014 Title V Permit is unclear as to whether the federally applicable opacity and PM emission limits . . . apply during periods of planned" SSM, as required, she writes.
In a Feb. 4 statement, environmentalists opposed to the waiver say, "The TCEQ has issued similar exemptions for nearly every coal-fired power plant in the State. So even though EPA's decision impacts only one plant, it sets a precedent for the many other coal-fired power plants in the state that currently have flawed permits."
The Environmental Integrity Project is pursuing petitions asking EPA to formally object to air permits for several other power plants in Texas, which is home to a large share of the country's heavy industrial facilities that are classed as "major sources" of air pollution subject to Title V operating permit requirements.
One environmentalist says of the objection, "This was a very clear win. It will go well beyond the Pirkey plant, because most of the rest of Texas's coal plants have similar terms in their permits." The source says, "it appears that EPA has drawn a pretty bright line. So, it's just a matter of time for all the other coal plants."
The source says the order is "in harmony with" EPA's recent actions to eliminate regulatory exemptions for periods of startup, shutdown, maintenance and also malfunction after the U.S. Court of Appeals for the District of Columbia Circuit said the SSM exemptions and a related "affirmative defense" were unlawful.
EPA has issued a "SIP Call" rule, calling on states to remove such exemptions from their state implementation plans (SIPs), which are blueprints for Clean Air Act implementation. Several states, including Texas, have sued EPA over the rule in the D.C. Circuit, claiming it usurps their rights and renders emissions limits unattainable.
EPA has further moved to remove these exemptions from its air rules on a case-by-case basis, and advocates hope the Pirkey plant permit objection might lead to stricter permits in Texas and deter other states from inserting provisions in permits that risk undermining requirements to comply with emissions limits at all times.
"The Pirkey objection and followup action on the rest of the Texas plants will help make sure other states don't follow Texas's lead," says the environmentalist.
An industry source says that other power plant operators in Texas are now scrutinizing their permits to see if they contain similarly unclear language that could be vulnerable to an environmentalist petition to EPA.
The source says industry groups still believe that industrial sources cannot comply with emissions limits at all times, especially during unforeseen malfunctions. However, in the case of the Pirkey plant permits, EPA's objection "is not completely off the reservation," as it is in some respects not as clear as it should be, the source adds.
A TCEQ spokesman says the commission "is in the process of developing a response to the EPA order regarding EPA's concerns on the Pirkey Title V permit. This is the only permit to which EPA has expressed concerns regarding this issue. If additional clarification is needed for other permits, TCEQ will take appropriate action.”
Environmentalists' Strategy
EPA's Pirkey plant permit objection also represents a success for environmentalists in their revised strategy for curbing air emissions from sources in Texas and beyond, sources say.
Environmental groups have suffered some recent defeats in the courts over air law citizen enforcement actions in Texas, including a major defeat in federal district court that initially saddled Sierra Club and others with millions of dollars in legal fees for failed enforcement efforts. That obligation was only lifted after the group agreed not to pursue any further air law enforcement actions against utility Luminant, the owner or operator of coal-fired power plants at the center of several legal actions over alleged emissions violations.
In one ongoing legal action, environmentalists are appealing another Texas district court decision against a citizen enforcement action, this time against ExxonMobil's refinery and chemical plant complex in Baytown, TX.
In Environment Texas Citizen Lobby, Inc., et al v. ExxonMobil Corporation, et al., now before the 5th Circuit, environmental groups allege that the huge Baytown refinery complex violated its permit emissions limits on numerous occasions. Judge David Hittner of the U.S. District Court for the Southern District of Texas ruled Dec. 17, 2014, that environmentalists' allegations of excess air toxics emissions, violations of flaring requirements and illegal "upset" unplanned emissions spikes were unfounded.
Environmentalists say that upsets, which result from malfunctions, are permit violations. But at Feb. 2 oral argument in the 5th Circuit appeal, attorney Russell Post for Exxon argued that that upsets are not covered by permits and therefore do not represent permit violations. "Permits regulate normal operations," Post said. "Unplanned and unavoidable events are not subject to permitting."
Post further argued that the district court was right to conclude that TCEQ's own enforcement settlement with Exxon should displace the citizen suit claims. Post cited TCEQ staff's own conclusion that "this enforcement model is the ideal way to ensure compliance."
He said "the industry relies on the predictability of entering into these agreements." Ruling for environmentalists would "create a disincentive to these types of agreements," he said.
Attorney Joshua Kratka, arguing for environmentalists, focused on language in one permit that explicitly says upset emissions are not authorized, and argued that a general condition of air permits is that emissions in excess of the permitted amounts are violations of the permit.
He cited 5th Circuit precedent in earlier litigation against Texas electric utility Luminant, and also refiner Murphy Oil, that held upset emissions to be permit violations.
The three judge panel of Fortunato Benavides, James Dennis and Leslie Southwick questioned Post on this assertion that the TCEQ action should suffice and preclude the citizen suit claims.
One judge, who was not clearly identified in a audio recording of the proceedings, said, "It is clear that the Clean Air Act allows citizen suits," and "for us to accept your argument would greatly undermine the citizen suit aspect" of the air law.
"It does seem to me that to reject a penalty merely because TCEQ has already done its work is very troubling," the judge said. Post replied that there is not a barrier to bringing citizen suits per se, but the question was whether district court Judge Hittner abused his discretion in taking the TCEQ action into account. "There is no serious argument that that's an abuse of discretion," Post said.
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Walker Moves to Block Power Plan Compliance after SCOTUS Stay
Feb 16, 2016 | The Hill - E2 Wire
By Devin Henry
Wisconsin Gov. Scott Walker (R) has signed an executive order blocking the formation of a state plan to comply with President Obama’s climate rule for power plants.
In the order, released Monday, Walker cited last week’s stay from the Supreme Court as a reason for not working toward compliance with the rule.
“Clearly, this rule exceeds the President’s authority and would place an undue burden on the Wisconsin ratepayers and manufacturers,” Walker said in a statement.
“The stay granted last week by the Supreme Court validates our concerns about this rule.”
Last week, the Supreme Court temporarily blocked the Clean Power Plan, a rule designed to cut electricity sector emissions by setting state reduction goals. The stay means states won’t have to write compliance plans and submit them to the Environmental Protection Agency (EPA) until and unless the rule is validated by the courts.
Several Republican-led states, including Wisconsin, sued against the rule, and since the stay, many have reaffirmed that they won’t bother writing compliance plans until courts rule on the matter.
Texas Attorney General Ken Paxton, who sued against the rule, told reporters last week that his state wouldn’t comply with the rule. He and West Virginia Attorney General Patrick Morrisey wrote a letter urging state regulators to do the same.
But EPA Administrator Gina McCarthy encouraged regulators last week to continue working toward their goals despite the stay order, saying the ruling “doesn’t mean we won't continue to support any state that voluntarily wants to move forward.”
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