ACC AM Feb 17

Industry and Association News

1. (ACC Mentioned) Westlake Continues Push For Axiall With New Board Nominees

   Feb 16, 2016 | Plastics News

   By Catherine Kavanaugh
   
   
   Westlake Chemical Corp. took another step forward in its takeover bid for Axiall Corp. on Feb. 15 by announcing a slate of 10 individuals — including former plastics industry leaders Charles Crew and Randy Woelfel — that it plans to nominate to the Axiall board of directors.
2. (ACC Mentioned) Hostile Takeover Battle For Atlanta's Axiall Heats Up, As Suitor Proposes 10 Directors

   Feb 16, 2016 | Atlantic Business Journal

   By David Allison
   
   
   A $2.9 billion hostile takeover battle for Atlanta chemical giant Axiall Corp. heated up Tuesday, as suitor Westlake Chemical Corp. said it would nominate 10 members to Axiall's board of directors at the company's 2016 annual meeting. Houston-based Westlake (NYSE: WLK) launched its hostile takeover...
3. (ACC Mentioned) Westlake Chemical (WLK) to Nominate Slate for Axiall's (AXLL) Board

   Feb 16, 2016 | StreetInsider

   Westlake Chemical Corporation (NYSE: WLK) today announced that it has notified Axiall Corporation (NYSE: AXLL) of its intention to nominate a slate of ten independent, highly qualified individuals to Axiall's Board of Directors at Axiall's 2016 Annual Meeting, which has yet to be scheduled. In 2015, the Axiall Annual Meeting was held on May 19.

Chemical Management News

4. (ACC Mentioned) HB 316 Debated On Utah Floor Tuesday

   Feb 16, 2016 | Standar Examiner

   By Cathy McKitrick
   
   
   A Kaysville lawmaker’s building code bill that stirred concerns among at least a dozen diverse stakeholders cleared a House committee Tuesday in an 11-2 vote. Rep. Brad Wilson, R-Kaysville is spearheading House Bill 316, legislation that would, with a few exceptions, adopt 2015 international enforcement, construction, fire codes and energy...
5. Lawmakers Urged To Preserve States' Authority In TSCA Conference Bill

   Feb 16, 2016 | InsideEPA

   By Bridget DiCosmo
   
   
   State officials are urging lawmakers preparing for conference talks to reconcile House and Senate Toxic Substances Control Act (TSCA) reform bills to ensure the final legislation preserves states' authority to develop and implement their own chemical safety standards, one of the most contentious issues in the efforts to overhaul TSCA.
6. EPA, FDA Challenged by ‘Systematic Review' of Chemicals

   Feb 17, 2016 | BNA Daily Environment Report

   By Pat Rizzuto
   
   
   The Environmental Protection Agency and the Food and Drug Administration are grappling with the time, cost and scientific challenges of using detailed toxicity data evaluation methods called “systematic review” to assess the health and other impacts of chemicals, according to agency officials and consultants at a recent workshop.
7. Change Definition In Canadian Microbeads Regulations, Says NGO

   Feb 16, 2016 | Chemical Watch

   By Adri Patel-Roberts
   
   
   Canada’s proposals for banning microbeads in certain personal care products should reinstate the broader definition originally proposed, says NGO Environmental Defence. Last year’s proposed government Order said microbeads – defined as synthetic polymer particles greater than 0.1μm and no greater than 5mm in size – should be banned in...

Chemical Security News - There are no clips to report at this time

Transportation News

8. Oil Train Safety Gets An Important Boost

   Feb 16, 2016 | The Sacramento Bee

   Officials in the Sacramento region have every right to raise safety concerns about oil trains rumbling through. Now they have key allies in their cause. Last week, the city of Benicia’s planning commission unanimously rejected a plan by Valero Refining Co. to take deliveries twice a day from 50-tanker trains that would roll through Roseville...
9. Coast Guard to Rescind Fracking Wastewater Barge Policy

   Feb 17, 2016 | BNA Daily Environment Report

   By Rachel Leven
   
   
   The U.S. Coast Guard will publish a notice withdrawing a proposed policy for permitting bulk barge shipments of fracking wastewater; however, it will continue to consider under its existing authority requests to conduct this type of transport, an agency spokeswoman told Bloomberg BNA Feb. 16.

Energy and Environment News

10. (ACC Mentioned) Webinar To Focus On The Technology Of Hydraulic Fracturing Proppants

    Feb 16, 2016 | Penn State News
11. EPA Advisers Advance Review on Fracking Study

    Feb 17, 2016 | BNA Daily Environment Report

    By Alan Kovski
    
    
    The latest version of a draft review of the Environmental Protection Agency's study of the risks to drinking water from hydraulic fracturing calling on the agency to incorporate more information on things like the probability of well failure was posted online Feb. 16 by the agency's Science Advisory Board.
12. Sierra Club Sues Oklahoma Energy Companies Over Earthquakes

    Feb 17, 2016 | BNA Daily Environment Report

    By Paul Stinson
    
    
    The Sierra Club filed a federal lawsuit against three Oklahoma oil and gas companies Feb. 16, alleging that production waste from fracking and oil production have contributed to an “alarming” increase in earthquake activity in the state (Sierra Club v. Chesapeake Operating LLC, Okla. Dist. Ct., No. 5:16-cv-00134, 2/16/16).
13. Sierra Sues Oil And Gas Companies Over Oklahoma Earthquakes

    Feb 16, 2016 | PoliticoPro - Whiteboard

    By Elana Schor
    
    
    The Sierra Club today filed a court challenge against three oil and gas companies active in Oklahoma over their wastewater injection practices, alleging a connection between drillers' underground disposal habits and a recent surge in earthquake activity in the state.
14. Greens Sue 3 Fracking Companies Over Okla Earthquakes

    Feb 16, 2016 | The Hill - E2 Wire

    By Timothy Cama
    
    
    A pair of environmental groups is suing three oil drilling companies over their responsibility for thousands of earthquakes in Oklahoma. Devon Energy Corp., Chesapeake Energy Corp. and New Dominion all using hydraulic fracturing on Oklahoma to drill for oil and inject the wastewater underground, which has been identified as the...
15. 'Keep It In The Ground' Activist Claims Leases After BLM Auction

    Feb 16, 2016 | E&E News PM

    By Phil Taylor and Scott Streater
    
    
    A well-known author and conservationist said she purchased an oil and gas lease today from the Bureau of Land Management in Salt Lake City to protest drilling on public lands. Terry Tempest Williams purchased three parcels, one of which was 800 acres and located 14 miles from Arches National Park, she said in a statement forwarded by an...
16. Greens Wary Of Srinivasan's Fossil Fuel Past

    Feb 16, 2016 | PoliticoPro

    By Elana Schor
    
    
    he prospect of President Barack Obama tapping Sri Srinivasan for the Supreme Court is spawning a sharp debate among at least one part of the Democrats’ liberal grass roots — environmentalists turned off by his high-profile defense of giant fossil fuel companies. The federal appellate court judge has emerged as an early favorite...
17. Obama Intends To Nominate Scalia Replacement

    Feb 16, 2016 | PoliticoPro - Whiteboard

    By Nolan D. McCaskill
    
    
    President Barack Obama today said he intends to nominate a new Supreme Court justice to replace Antonin Scalia. “I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” Obama said, delivering remarks from Omni Rancho Las Palmas in Rancho Mirage, California.
18. Observers: Without Scalia, Clean Power Plan's Odds Boosted

    Feb 17, 2016 | BNA Daily Environment Report

    By Anthony Adragna
    
    
    The death of Supreme Court Justice Antonin Scalia immediately increases the odds the Environmental Protection Agency's Clean Power Plan survives judicial review, attorneys and other observers told Bloomberg BNA Feb. 16. Having just eight justices on the high court will further raise the stakes for the regulation in the federal appeals...
19. Next Supreme Court Justice Will Be Crucial to Climate Change

    Feb 16, 2016 | The New York Times

    By Eduardo Porter
    
    
    The United States sure knows how to throw cold water on international harmony. Just two months have passed since the world’s top diplomats cobbled together the best plan we’ve ever had to start curbing emissions of heat-trapping greenhouse gases. Yet already the Supreme Court of the United States said no...
20. Michigan Won't Finalize Climate Plan Until Court Fight Ends

    Feb 16, 2016 | The Hill - E2 Wire

    By Devin Henry
    
    
    Michigan Gov. Rick Snyder’s administration won't comply with President Obama’s climate rule for power plants until legal fights over it conclude. The Michigan Agency for Energy (MAE) said Tuesday that, after reviewing last week's Supreme Court-issued stay against the Clean Power Plan, it will “suspend activities to comply with...
21. Scott Walker Orders Wisconsin Not To Comply With Obama Climate Rule

    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 Supreme Court order to delay the regulations as a reason for not working toward compliance.“Clearly, this rule exceeds the...
22. Battle Over Court Pick Has Pragmatic, Partisan Elements

    Feb 17, 2016 | BNA Daily Environment Report

    By Mike Dorning
    
    
    President Barack Obama's choices for replacing Justice Antonin Scalia on the U.S. Supreme Court come down to firing up the Democratic base with a decidedly liberal jurist who can't be confirmed, or offering Senate Republicans a more moderate candidate they could support.
23. CBD Eyes Suit To Force Revised EPA Ozone Designations

    Feb 16, 2016 | InsideEPA

    The environmental group Center for Biological Diversity (CBD) is threatening EPA with a lawsuit over what it says is the agency's failure to meet a statutory deadline for revising the status of several areas that are not attaining the agency's 2008 ozone national ambient air quality standard (NAAQS) of 75 parts per billion (ppb).
24. Scalia's Influence Extends Over Water Rule Opponents

    Feb 17, 2016 | BNA Daily Environment Report

    By Amena H. Saiyid
    
    
    Former U.S. Supreme Court Justice Antonin Scalia's narrow textual reading of the Clean Water Act in a 2006 ruling influenced not only litigation but also legislation against the Obama administration's rule to clarify the scope of the statute, according to attorneys interviewed by Bloomberg BNA.
25. Advocates Object to ‘Exceptional Events’ Air Rule Changes

    Feb 17, 2016 | BNA Daily Environment Report

    By Patrick Ambrosio
    
    
    The Environmental Protection Agency's proposal to delete a long-standing requirement in its “exceptional events” air pollution regulations is unlawful, environmental groups alleged in comments. The November proposal would make a number of changes to the agency's exceptional events policy to address state concerns with the current process...

Full Text of Stories Below

Industry and Association News

1. (ACC Mentioned) Westlake Continues Push For Axiall With New Board Nominees

   Feb 16, 2016 | Plastics News

   By Catherine Kavanaugh

   Westlake Chemical Corp. took another step forward in its takeover bid for Axiall Corp. on Feb. 15 by announcing a slate of 10 individuals — including former plastics industry leaders Charles Crew and Randy Woelfel — that it plans to nominate to the Axiall board of directors.

   Westlake officials say Crew, the former president and CEO of Sabic Innovative Plastics, Woelfel, the former CEO of Nova Chemicals Inc., and the others on its slate are independent, highly qualified nominees. Axiall’s current board has 10 members.

   Crew left Sabic in 2012 and currently isan independent director of DuBois Chemicals. In addition to his time at Nova, Woelfel is a former president of Basell North America and currently an director of Black & Veatch and advisor to several petrochemicals and plastics companies.

   Based in Houston, Westlake manufactures petrochemicals, polymers and PVC building products. The company is trying to acquire Axiall, which produces PVC resins, compounds and building products, for $20 per share. The amount is based on $11 in cash and almost 0.2 of a Westlake share, which represented a value of $9 based on Westlake’s closing price of Jan. 22. That was the last trading day before the acquisition proposal.

   Westlake publicly announced its $2.9 billion takeover bid of Axiall on Jan. 29. Atlanta-based, Axiall fired back on Feb. 11 with a 26-page presentation for the Securities and Exchange Commission that says Westlake has not only undervalued Axiall but shareholders question the corporate governance , noting that one family owns 70 percent of Westlake common stock, and commitment considering Westlake’s 2011 bid to acquire Georgia Gulf Corp. was dropped seven months later.

   However, Albert Chao, Westlake’s president and CEO, said in a Feb. 16 news release that it has heard from Axiall shareholders who want to discuss the proposal.

   “Given the clear shareholder support and the compelling nature of our proposal, we are disappointed that Axiall has been unwilling to engage with us,” Chao said. “Our proposal, which represented a 108 percent premium to Axiall’s closing price on the day before we submitted it, provides both certainty and upside potential through the combination of cash and an ownership interest in the combined company.”

   Axiall shareholders would be better served by the slate of board nominees, Chao added.

   “Our nominees have the necessary track record, strategic vision and experience to maximize shareholder value,” he said. “We believe they will consider our proposal in an independent manner and in accordance with their fiduciary duties. The nominations give Axiall shareholders an opportunity to voice their disappointment with Axiall’s refusal to engage in discussions with us regarding our proposal.”

   Axiall's annual meeting for 2016 hasn’t been scheduled yet. Last year it was in May.

   In addition to Crew and Woelfel, other nominees on the Westlake slate are:

   • Steven Blank, the former executive vice president, chief financial officer and treasurer of NuStar GP LLC, and NuStar GP Holdings LLC. He is currently an independent director of TransMontaigne LP and Dakota Plains Holdings Inc.

   • Michael Campbell, the former chairman, president and CEO of Arch Chemicals, Inc., and executive vice president of Olin Corp.. He is currently an independent director of WestRock Co. He also is a former director of Milliken & Company and former chairman of the American Chemistry Council.

   • Ruth Dreessen, the managing director of Lion Chemical Capital LLC. She is a former executive vice president and CFO of TPC Group Inc. and senior vice president and CFO of Westlake from 2003-2005. She is also currently chairwoman of Gevo and a director of Targa Resources Partners LP. In addition, she is a former director of Georgia Gulf Corp. (a predecessor to Axiall) from 2001-2003, and Versar Inc.

   • Angela Minas, an independent director and chair of the audit committee of CONE Midstream Partners LP and an independent director of Ciner Resources LP (formerly OCI Resources LP). She also is a former vice president and CFO of DCP Midstream Partners.

   • David Reeves, the former president of strategy, planning and technology, and a long-time executive of Chevron Corp. He is a former director of ChevronPhillips Chemical Co.

   • Ron Steger, a senior advisor to the Effectus Group and director of Overseas Shipholding Group, Inc. He also is a former audit partner and long-time partner of KPMG LLP.

   • James Swent III, the former executive vice president and CFO of Ensco plc., co-founder and managing director of Amrita Holdings LLC, CFO and CEO of Cyrix Corp., and CFO and CEO of American Pad and Paper Co.

   • Gary Whitlock, a former executive vice president and CFO of CenterPoint Energy Inc., vice president of finance and CFO of Dow AgroSciences, a subsidiary of Dow Chemical Co., and a former director of various Dow entities, Texas Genco Holdings Inc., KiOR Inc. and Enable Midstream Partners LLC.

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2. (ACC Mentioned) Hostile Takeover Battle For Atlanta's Axiall Heats Up, As Suitor Proposes 10 Directors

   Feb 16, 2016 | Atlantic Business Journal

   By David Allison

   A $2.9 billion hostile takeover battle for Atlanta chemical giant Axiall Corp. heated up Tuesday, as suitor Westlake Chemical Corp. said it would nominate 10 members to Axiall's board of directors at the company's 2016 annual meeting.

   Houston-based Westlake (NYSE: WLK) launched its hostile takeover offer for Axiall (NYSE: AXLL) on Jan. 29, saying Axiall's management had "summarily rejected" an offer from Westlake. Westlake then took its proposal directly to Axiall shareholders.

   In a statement released Tuesday, Albert Chao, Westlake’s president and CEO, said, “We have heard from many Axiall shareholders who have expressed their desire for Axiall to engage in discussions with us regarding our proposal."

   "Given Axiall’s position," Chao added, "we believe that Axiall shareholders would be better served by our independent and highly qualified nominees, who are committed to acting in the best interests of all Axiall shareholders. Our nominees have the necessary track-record, strategic vision and experience to maximize shareholder value. We believe they will consider our proposal in an independent manner and in accordance with their fiduciary duties. The nominations give Axiall shareholders an opportunity to voice their disappointment with Axiall’s refusal to engage in discussions with us regarding our proposal."

   One of the directors proposed by Westlake, Ruth Dreessen, was formerly a director of Axiall's predecessor company, Georgia Gulf Corp. Another proposed director, Michael Campbell, is on the board of Atlanta-based container giant WestRock Co. People on the Move Jaime Griffon Hope-Beckham Inc

   See below for a list of the 10 directors proposed by Westlake.
   

   Axiall fired back at Westlake on Tuesday, saying in a statement, "We believe that Westlake’s nomination of a slate of board candidates is a clear attempt to force a sale of Axiall to Westlake at a price that significantly undervalues Axiall’s assets and its long-term prospects."

   "The Axiall board and management team are committed to acting in the best interests of all Axiall stockholders," Axiall's statement continued. "However, the board questions the independence of Westlake’s slate and is concerned that, if elected to the Axiall board, Westlake’s nominees would have inherent conflicts given Westlake’s focus on acquiring Axiall."

   Axiall said its board and management team are committed to driving shareholder value and that Axiall has positioned itself for growth and increased profitability. For Axiall's complete statement, click here.

   Axiall executives met with the company's investors on Feb. 11, telling them Westlake's offer "is a bad deal."

   As of April 2015, Axiall's largest shareholders were Grand Caymans-based Soroban Master Fund LP (9.97 percent), Atlanta-based Shapiro Capital Management LLC (7.49 percent), Blackrock Inc., JP Morgan Chase & Co., FMR LLC, The Vanguard Group, and Franklin Resources Inc., each owning about 6 percent respectively.
   

   The 10 proposed directors to be nominated by Westlake include:

   • Steven Blank, former executive vice president, CFO and treasurer of NuStar GP LLC, and NuStar GP Holdings LLC. Currently an independent director of TransMontaigne LP and Dakota Plains Holdings Inc.

   • Michael Campbell, former chairman, president and CEO of Arch Chemicals Inc., and executive vice president of Olin Corp. Currently an independent director of WestRock Co. Former director of Milliken & Company and former chairman of the American Chemistry Council.

   • Charles Crew, former executive vice president and president, CEO of SABIC Innovative Plastics, Saudi Basic Industries Corp. (SABIC) and long-time executive of GE Plastics, General Electric Co. (GE). Currently an independent director of DuBois Chemicals.

   • Ruth Dreessen, Managing Director of Lion Chemical Capital, LLC. Former Executive Vice President and Chief Financial Officer of TPC Group Inc. and Senior Vice President and Chief Financial Officer of Westlake Chemical Corporation from 2003-2005. Currently Chairman of Gevo and Director of Targa Resources Partners LP. Former Director of Georgia Gulf Corporation (a predecessor to Axiall) from 2001-2003, and Versar, Inc.

   • Angela Minas, independent director and chair of the audit committee of CONE Midstream Partners LP and independent director of Ciner Resources LP (formerly OCI Resources LP). Former vice president and CFO of DCP Midstream Partners.

   • David Reeves, former president of strategy, planning and technology, and long-time executive of Chevron Corp. Former director of ChevronPhillips Chemical Co. (CPChem).

   • Ron Steger, Senior Advisor to the Effectus Group and Director of Overseas Shipholding Group Inc. (OSG). Former Audit Partner and long-time partner of KPMG LLP.

   • James Swent III, former executive vice president and CFO of Ensco plc., co-founder and managing director of Amrita Holdings LLC, CFO and CEO of Cyrix Corp. and CFO and CEO of American Pad and Paper Company.

   • Gary Whitlock, former executive vice president and CFO of CenterPoint Energy Inc. and vice president of finance and CFO of Dow AgroSciences, a subsidiary of The Dow Chemical Co. Former director of various Dow entities, Texas Genco Holdings, Inc., KiOR, Inc. and Enable Midstream Partners, LLC.

   • Randy Woelfel, former CEO of NOVA Chemicals Inc., president of Basell International and Basell North America (now part of LyondellBasell) and longtime employee of Royal Dutch Shell plc (Shell). Currently an Independent director of Black & Veatch and advisor to several petrochemicals and plastics companies.

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3. (ACC Mentioned) Westlake Chemical (WLK) to Nominate Slate for Axiall's (AXLL) Board

   Feb 16, 2016 | StreetInsider

   Westlake Chemical Corporation (NYSE: WLK) today announced that it has notified Axiall Corporation (NYSE: AXLL) of its intention to nominate a slate of ten independent, highly qualified individuals to Axiall's Board of Directors at Axiall's 2016 Annual Meeting, which has yet to be scheduled. In 2015, the Axiall Annual Meeting was held on May 19.

   Westlake has proposed to acquire Axiall for $20.00 per share (comprised of $11.00 in cash and 0.1967 of a Westlake share, which represented a value of $9.00 based on Westlake's closing price on January 22, 2016, the last trading day before Westlake made its proposal).

   Albert Chao, Westlake's President and Chief Executive Officer, said, "We have heard from many Axiall shareholders who have expressed their desire for Axiall to engage in discussions with us regarding our proposal. Given the clear shareholder support and the compelling nature of our proposal, we are disappointed that Axiall has been unwilling to engage with us. Our proposal, which represented a 108% premium to Axiall's closing price on the day before we submitted it, provides both certainty and upside potential through the combination of cash and an ownership interest in the combined company.

   "Given Axiall's position, we believe that Axiall shareholders would be better served by our independent and highly qualified nominees, who are committed to acting in the best interests of all Axiall shareholders. Our nominees have the necessary track-record, strategic vision and experience to maximize shareholder value. We believe they will consider our proposal in an independent manner and in accordance with their fiduciary duties. The nominations give Axiall shareholders an opportunity to voice their disappointment with Axiall's refusal to engage in discussions with us regarding our proposal," Mr. Chao concluded.

   The Westlake nominees to the Axiall Board of Directors are: Steven Blank, former Executive Vice President, Chief Financial Officer and Treasurer of NuStar GP, LLC, and NuStar GP Holdings LLC. Currently an Independent Director of TransMontaigne, LP and Dakota Plains Holdings, Inc.Michael Campbell, former Chairman, President and Chief Executive Officer of Arch Chemicals, Inc., and Executive Vice President of Olin Corporation. Currently an Independent Director of WestRock Company. Former Director of Milliken & Company and former Chairman of the American Chemistry Council.Charles Crew, former Executive Vice President and President, Chief Executive Officer of SABIC Innovative Plastics, Saudi Basic Industries Corporation (SABIC) and long-time executive of GE Plastics, General Electric Company (GE). Currently an Independent Director of DuBois Chemicals.Ruth Dreessen, Managing Director of Lion Chemical Capital, LLC. Former Executive Vice President and Chief Financial Officer of TPC Group Inc. and Senior Vice President and Chief Financial Officer of Westlake Chemical Corporation from 2003-2005. Currently Chairman of Gevo and Director of Targa Resources Partners LP. Former Director of Georgia Gulf Corporation (a predecessor to Axiall) from 2001-2003, and Versar, Inc.Angela Minas, Independent Director and Chair of the Audit Committee of CONE Midstream Partners LP and Independent Director of Ciner Resources LP (formerly OCI Resources LP). Former Vice President and Chief Financial Officer of DCP Midstream Partners.David Reeves, former President of Strategy, Planning and Technology, and long-time executive of Chevron Corporation. Former Director of ChevronPhillips Chemical Company (CPChem).Ron Steger, Senior Advisor to the Effectus Group and Director of Overseas Shipholding Group, Inc. (OSG). Former Audit Partner and long-time partner of KPMG LLP.James Swent III, former Executive Vice President and Chief Financial Officer of Ensco plc., Co-Founder and Managing Director of Amrita Holdings, LLC, Chief Financial Officer and Chief Executive Officer of Cyrix Corporation and Chief Financial Officer and Chief Executive Officer of American Pad and Paper Company.Gary Whitlock, former Executive Vice President and Chief Financial Officer of CenterPoint Energy, Inc. and Vice President of Finance and Chief Financial Officer of Dow AgroSciences, a subsidiary of The Dow Chemical Company. Former Director of various Dow entities, Texas Genco Holdings, Inc., KiOR, Inc. and Enable Midstream Partners, LLC.Randy Woelfel, former Chief Executive Officer of NOVA Chemicals, Inc., President of Basell International and Basell North America (now part of LyondellBasell) and longtime employee of Royal Dutch Shell plc (Shell). Currently an Independent Director of Black & Veatch and advisor to several petrochemicals and plastics companies.

    

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Chemical Management News

4. (ACC Mentioned) HB 316 Debated On Utah Floor Tuesday

   Feb 16, 2016 | Standar Examiner

   By Cathy McKitrick

   A Kaysville lawmaker’s building code bill that stirred concerns among at least a dozen diverse stakeholders cleared a House committee Tuesday in an 11-2 vote.

   Rep. Brad Wilson, R-Kaysville is spearheading House Bill 316, legislation that would, with a few exceptions, adopt 2015 international enforcement, construction, fire codes and energy conservation regulations.

   Wilson, a home builder by profession, said Utah’s Uniform Building Code Commission periodically reviews those provisions to help determine which portions the state should adopt.

   “I can think of at least a dozen stakeholders that have interest in this bill and sometimes have different opinions about what should and shouldn’t happen,” Wilson told members of the House Business and Labor Committee, pointing to input from architects, engineers, contractors, electricians, cities, building inspectors, nonprofit groups and even the American Chemistry Council. 

   Wilson’s bill would require annual reports to the Legislature and relax the state’s adoption cycle of international codes to every third cycle or six years. HB316 also requires high efficiency light bulbs and ultra-low Nitrous Oxide water heaters in new homes. 

   “(Nitrous Oxide) is a precursor to PM 2.5,” Wilson said of the air-clogging particulate matter defined as “the enemy in this state during an inversion.”

   The adoption of ultra-low Nitrous Oxide water heaters could result in essentially eliminating one to two bad air days, Wilson said. The bill also deals with mobile homes and their safety issues, and safeguards the state Department of Environmental Quality’s rule-making ability.

   The Legislature routinely revises the state’s building code but regulations can get excessively burdensome or fail to deliver a significant rate of return, Wilson said.

   The proposal garnered a mixed reaction.

   Layton City Attorney Gary Crane, speaking on behalf of the Utah League of Cities and Towns, and Bryce Bird, who directs the Utah Division of Air Quality, both spoke in support of the bill.

   “When we make air quality regulations, our intent is not to impact building code but to identify technologies that can improve air quality,” Bird said. “This bill, especially as it relates to the ultra-low (Nitrous Oxide) water heater provision, does that.”

   But David Brems, founding principal of GSBS Architects and a member of Gov. Gary Herbert’s Clean Air Action Team, urged the panel not to advance HB316.

   “In October 2014 we issued a recommendation ... to update the state’s building code to include energy efficiency standards of the 2015 International Energy Conservation Code,” Brems said, noting that HB316 includes those provisions for commercial buildings but leaves cost-effective energy efficiency for residential structures “off the table.”

   “Over the 50- to 100-year lifetime of any given home, it will have multiple owners and occupants who rely upon the good judgement and common sense of the first builder to ensure their home isn’t needlessly wasting energy and costing them money,” Brems said. “It’s a lot cheaper and easier to build in efficiency to a home rather than having to spend thousands retrofitting inefficient energy systems.”

   Brent Ursenbach, a code official with Salt Lake County who chairs the mechanical advisory committee for Utah’s Uniform Building Code Commission, voiced concerns about Utah’s future.

   “We’re dedicated professionals who really don’t have a dog in the fight financially but are committed to good legislation, good code and right now, clean air,” Ursenbach said. 

   In 2009, the state did not adopt the 2009 energy code because it took away the equipment trade-off, Ursenbach said. That trade-off allows building cheaper walls if a high-efficiency furnace is installed. By 2015, Utah had fallen even further behind and would need to take steps to tighten energy efficiency by about seven percent to catch up.

   But HB316 could drop gains in energy efficiency to somewhere between zero and three percent, and Ursenbach fears that Utah will spend twenty years with the same envelope requirements in the code.

   “I don’t see we’re making progress,” Ursenbach said.

   Wilson’s HB316 now moves on to the full House for debate.

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5. Lawmakers Urged To Preserve States' Authority In TSCA Conference Bill

   Feb 16, 2016 | InsideEPA

   By Bridget DiCosmo

   State officials are urging lawmakers preparing for conference talks to reconcile House and Senate Toxic Substances Control Act (TSCA) reform bills to ensure the final legislation preserves states' authority to develop and implement their own chemical safety standards, one of the most contentious issues in the efforts to overhaul TSCA.

   “The ability of states to develop and impose standards pending final EPA rules on some or all of the substances addressed by TSCA should be maintained,” write the National Governors' Association, National Conference of State Legislatures, Environmental Council of the States (ECOS), and Association of State and Territorial Health Officials in a Feb. 12 letter to House and Senate leadership.

   The groups say that state chemical safety evaluations augment EPA's efforts to regulate toxic substances under TSCA, and that states have played an important role in chemical regulation where federal action has been delayed or absent. “The bipartisan compromises reached on this legislation must continue to safeguard the authority of the states to regulate and adopt standards necessary to protect public health and safety,” the letter says.

   Both the House and Senate TSCA reform bills approved last year would overhaul the 1976 TSCA in order to give EPA new authority to address risks from existing chemicals in the marketplace and eliminate legal hurdles in current law that have hindered the agency's ability to restrict dangerous chemicals, such as its 1991 failure to ban asbestos.

   Lawmakers have acknowledged that preemption will be a major issue of debate on how to reconcile differences between the Senate bill, S. 697, and the much narrower House bill, H.R. 2576. Lawmakers have to meet for conference talks to craft a compromise bill that both chambers would then have to vote to approve.

   The House TSCA bill would generally preempt state chemical restrictions once EPA finalizes a restriction of a substance under the toxics law, but would not set a statutory deadline for industry to comply with a rule, whereas the Senate bill would permanently preempt restrictions on chemicals that do not meet the safety standard when the final rule takes effect, and sets a statutory deadline of four years for industry compliance.

   But for new chemicals, the Senate bill would create a “pause” period that would preempt new chemical rules and laws would occur when EPA defines and publishes the scope of a safety assessment and safety determination and ends when the agency either publishes a determination or reaches the statutory deadline for publishing a safety determination. In a Jan. 7 analysis comparing the two bills, ECOS says the regulatory pause in the Senate bill makes the House bill's timing of preemption preferable, but that the group favors the senate's approach to setting a deadline for implementation. “In summary, from the perspective of states interested in taking prompt action on chemical hazards, it would be preferable to eliminate the pause preemption that appears in the senate bill, but include an appropriate, limited statutory time frame for compliance,” the analysis says.

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6. EPA, FDA Challenged by ‘Systematic Review' of Chemicals

   Feb 17, 2016 | BNA Daily Environment Report

   By Pat Rizzuto

   The Environmental Protection Agency and the Food and Drug Administration are grappling with the time, cost and scientific challenges of using detailed toxicity data evaluation methods called “systematic review” to assess the health and other impacts of chemicals, according to agency officials and consultants at a recent workshop.

   “Systematic review doesn't solve even most of the controversies we have,” said Vincent Cogliano, director of the EPA's Integrated Risk Information System, which develops toxicological reviews of chemicals.

   Despite the concern he voiced, Cogliano said he fully supports IRIS's use of systematic review approaches and he described efforts the program is making to determine how it can be applied and the obstacles impeding its broader use.

   Cogliano spoke Feb. 10 during the systematic review session of the annual winter meeting of the Toxicology Forum, an international scientific organization.

   Daniele Wikoff, with ToxStrategies Inc., a risk assessment, product safety and analytic services consultancy, said many distinct approaches and frameworks have been developed to methodically and transparently conduct portions of systematic reviews, such as examining the quality of studies and determining bias.

   Just three examples include:

   • the National Toxicology Program's Handbook for Conducting a Literature-Based Health Assessment using Office of Health Assessment and Translation Approach for Systematic Review and Evidence Integration;

   • the Klimisch approach for evaluating the quality of experimental toxicological and ecotoxicological data; and

   • the Criteria for Reporting and Evaluating ecotoxicity Data, or CRED, approach.

   Cogliano: Few Methods for Key Element

   Yet few “off the shelf” methods have been developed for dose-response analyses such as those the EPA's IRIS program conducts as part of its Toxicological Reviews, said Cogliano. IRIS provides a compendium of hazard values for environmental chemicals developed as guidance by EPA. Risk managers use these toxicity values to decide regulatory, permit, cleanup and other standards.

   Eighty percent of the controversies IRIS faces as it assesses chemicals arise in the dose-response portion of its analyses, Cogliano said.

   Dose-response refers to the relationship between an amount of exposure, or dose, to a substance and the resulting changes in body function or health, i.e. the response.

   IRIS's dose-response calculations provide toxicity values such as a life-long inhaled dose that would not be expected to harm, a range of daily ingested chemical doses that would not create health problems, or the potency of a carcinogen.

   Structured, Replicable Procedures

   Due to the current lack of systematic review methodologies for the dose-response part of an IRIS assessment, and the program's desire to use documented, clear procedures, Cogliano said the IRIS program uses “structured, replicable procedures for dose-response.”

   The IRIS program continues to develop a draft handbook describing how it approaches chemical assessments, Cogliano said.

   That handbook will address the application or adaptation of systematic review procedures to a variety of analyses that are part of an IRIS assessment, Cogliano said.

   Steps within an IRIS assessment include:

   • problem formulation and protocol development;

   • the identification of pertinent studies to analyze the hazard a chemical may pose;

   • the evaluation of studies for validity, bias and other factors;

   • the identification of pertinent dose-response studies;

   • the evaluation of these studies for validity, bias and other factors and

   • evidence integration to reach hazard and dose-response conclusions.

   Phrase ‘Systematic Review' Misused

   Craig Llewellyn, a toxicologist and director of ingredient safety at the Coca-Cola Co., said the term systematic review is being used too casually, for example to describe a scientific literature search with extensive documentation.

   The examples Cogliano described and a ToxStrategies review conducted for the FDA on the health effects of caffeine illustrated a more fitting use of its meaning, Llewellyn said.

   The systematic reviews Cogliano, Wikoff and other speakers discussed were “capital S, capital R” evaluations—the use of structured procedures for a variety of analyses designed to address a specific predetermined question, Llewellyn said.

   Time Often Underestimated

   Wikoff described in detail the rigor, databases available for scientific literature searches, data extraction procedures, risk of bias and study quality analysis procedures available for systematic reviews.

   She also described the training and time required for two scientists to evaluate the quality and risk of bias for the studies identified for the systematic review of caffeine's health effects.

   Evaluating study quality and risk of bias should involve at least two scientists, she said, describing the time required as “one of the most understated aspects” of systematic review.

   An FDA toxicologist, who said she was not familiar with the details of the caffeine analysis, nevertheless said the systematic review must have cost at least $1 million.

   Another FDA participant rose from the audience to say that based on the time-per-study detail Wikoff presented, the study quality reviewers would have each spent a year reviewing the myriad health effects studies identified as having potential relevance for the systematic review.

   Far More Work for IRIS Assessments

   Following her presentation, Wikoff told Bloomberg BNA the health effects of caffeine systematic review ToxStrategies prepared involved substantially less work than would one for an IRIS assessment.

   The caffeine analysis focused only on human health studies and was designed to help FDA reach a hazard conclusion, she said.

   In contrast, IRIS assessments must identify and then examine animal toxicity studies for their hazard component and then identify and examine human, animal and mechanistic studies that could be used for dose-response analysis, she said. Mechanistic studies of detailed biochemical cascades provide data on issues such as how a chemical moves through, is broken down by and is eventually eliminated by the body and what genes it may activate or deactivate.

    

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7. Change Definition In Canadian Microbeads Regulations, Says NGO

   Feb 16, 2016 | Chemical Watch

   By Adri Patel-Roberts

   Canada’s proposals for banning microbeads in certain personal care products should reinstate the broader definition originally proposed, says NGO Environmental Defence.

   Last year’s proposed government Order said microbeads – defined as synthetic polymer particles greater than 0.1μm and no greater than 5mm in size – should be banned in personal care products “used to exfoliate or cleanse”.

   But a recent Environment Canada consultation document says that, following comments received, the proposed upper size limit has been changed to 2mm.

   "Unfortunately, the proposed definition of microbeads does not include particles larger than 2mm in size, whereas Environment Canada had originally considered including particles up to 5mm in size," said Environmental Defence toxics manager manager, Maggie MacDonald. "Environmental Defence supports a stronger stance that would also include larger microplastics in the regulations."

   Ms MacDonald commended Environment Canada for moving forward with the regulations, describing microbeads as “harmful and unnecessary additions to personal care products”. Their elimination, Ms MacDonald adds, is “an important step in protecting Canada's lakes and rivers and ultimately human health”.

   And the organisation will also work to ensure there is no loophole in the regulations exempting biodegradable plastics. Because there is no standard for these, she says, this “would only serve to perpetuate microbead pollution.”

   The NGO is also proposing alternatives for companies manufacturing personal care products. “Microbeads can easily be eliminated from body and face washes and replaced with natural ingredients like almond and apricot shells”, Ms MacDonald says. “Several large companies, including Johnson & Johnson and Loblaw have already announced that they will be ending the use of these microplastics.”

   The draft regulations would ban the manufacture and import of microbead-containing personal care products used to exfoliate or cleanse from 31 December 2017, and their sale or offer for sale from 31 December 2018.

   Similar bans would apply to non-prescription drug or natural health products used to exfoliate or cleanse from 31 December 2018 and 31 December 2019, respectively.

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Transportation News

8. Oil Train Safety Gets An Important Boost

   Feb 16, 2016 | The Sacramento Bee

   Officials in the Sacramento region have every right to raise safety concerns about oil trains rumbling through. Now they have key allies in their cause.

   Last week, the city of Benicia’s planning commission unanimously rejected a plan by Valero Refining Co. to take deliveries twice a day from 50-tanker trains that would roll through Roseville, downtown Sacramento, West Sacramento and downtown Davis on their way to Benicia. As The Bee’s Tony Bizjak reports, planners in San Luis Obispo County have also recommended against a plan by Phillips 66 for about 150 trains a year to bring oil to its refinery.

   While local residents and environmental groups objected, some Benicia planning commissioners said they also heard Sacramento-area residents and officials loud and clear. “I don’t want to be the planning commissioner in the one city that said ‘screw you’ to up-rail cities,” Commissioner Susan Cohen Grossman said.

   The Sacramento Area Council of Governments, representing six counties and 22 cities, had argued that Benicia’s environmental review was inadequate because it didn’t look at how to protect cities along the route. That analysis concluded the trains could create a “potentially significant” hazard to the public from oil spills and fires, but only once every few decades.

   Yet, as Don Saylor, a Yolo County supervisor and a former SACOG chairman, points out, depending where a derailment happened, heavily populated neighborhoods could be in the blast zone.

   He told The Sacramento Bee’s editorial board Tuesday that the best solution is for the oil to be stabilized at the source in the oil fields of North Dakota and elsewhere, and then transported in state-of-the-art rail cars. That, of course, would cut into oil and rail industry profits, and government regulators aren’t there yet.

   Indeed, they have been trying to catch up to the boom in domestic oil production and rail transport. After more than two years of debate, the U.S. Department of Transportation last May issued new rules under which the oldest tank cars must be replaced by 2018 with thicker-shelled ones, and cars built since 2011 must be retrofitted or replaced by 2020.

   Valero, which wants to build a rail spur and unloading station at its refinery, is expected to appeal to the Benicia City Council. The planning commission in San Luis Obispo is scheduled to vote in late March or April.

   Officials could still overturn the recommendations and approve these trains. But at least now, they must justify why safety concerns are outweighed.
   Read more here: http://www.sacbee.com/opinion/editorials/article60693736.html#storylink=cpy

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9. Coast Guard to Rescind Fracking Wastewater Barge Policy

   Feb 17, 2016 | BNA Daily Environment Report

   By Rachel Leven

   The U.S. Coast Guard will publish a notice withdrawing a proposed policy for permitting bulk barge shipments of fracking wastewater; however, it will continue to consider under its existing authority requests to conduct this type of transport, an agency spokeswoman told Bloomberg BNA Feb. 16.

   “This notice officially withdrawing the proposed policy letter is intended to resolve any questions about the status of the proposed policy letter or the existing regulatory process. No new policy is proposed at this time,” Lisa Novak, the spokeswoman, said in an e-mail. “We will use experience with individual approvals of [shale gas extraction wastewater] barge transport to inform any future rulemaking or guidance on this subject.”

   The Coast Guard policy letter that was proposed in October 2013 would have established a process for conducting chemical analyses of fracking wastewater loads, for a radiation survey of each barge and for tank venting, among other safeguards. It was proposed in light of increased interest by commercial entities in the movement by barge of fracking wastewater, namely interest in moving the wastewater from northern Appalachia to Ohio, Texas and Louisiana (212 DEN A-3, 11/1/13).

   Groups such as CREDO Action filed thousands of comments in opposition to the policy proposal, urging the Coast Guard to protect drinking water sources by keeping “toxic, radioactive fracking wastewater” off of the nation's rivers. The American Water Works Association, the U.S. Fish and Wildlife Service and others urged certain safeguards to be included such as characterization of the wastewater. Finally, at least one company—Ergon Oil Purchasing Inc.—said the rule would be inappropriately burdensome and broad through its “testing regimen” and other areas.

   The agency will make its formal announcement through a Federal Register notice, Novak said, explaining that the notice would be published when it is “final.” The White House, which refers to the notice as a “pre-rule,” has been reviewing the proposal since May 2015. It completed its review Feb. 12 (95 DEN A-1, 5/18/15).

   The Coast Guard spokeswoman declined to tell Bloomberg BNA how many companies currently are approved to conduct this type of bulk transport or how many related applications to execute these kind of activities are under review. Novak also declined to answer why the proposed policy was being rescinded.

   Several entities that previously expressed interest in the proposed policy didn't immediately respond to messages requesting comment. Some of those stakeholders include the American Water Works Association, the Delaware Riverkeeper Network and James Elliott of Spilman Thomas & Battle PLLC, who has previously acted as an attorney for the Independent Oil and Gas Association of West Virginia Inc. on this issue.

    

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Energy and Environment News

10. (ACC Mentioned) Webinar To Focus On The Technology Of Hydraulic Fracturing Proppants

    Feb 16, 2016 | Penn State News

    To extract natural gas from deep shale formations like the Marcellus, scientists developed a process using "proppants" in the fluid used in hydraulic fracturing. A Web-based seminar offered by Penn State Extension will focus on those materials, which are designed to keep induced fractures open.

    This presentation, from 1 to 2 p.m. on Thursday, Feb. 18, will feature Marc McQuesten, vice president of Preferred Proppants/DustPRO. He will discuss the role of proppants — typically a solid material such as sand, treated sand or man-made ceramic — and current technological advances in hydraulic fracturing.

    Unconventional shale-gas development benefitted from new technologies in horizontal drilling and hydraulic fracturing operations, McQuesten noted. The use of proppants is a key factor in getting natural gas from these tight sources.

    "Rapid efficiencies have been realized in hydraulic fracturing in recent years, with longer laterals, tighter cluster spacing, increased proppant loading and faster drilling times — all leading to lowering the cost of gas extraction," he said. "That said, average recovery factors for the domestic unconventional resource base are well below the global average."

    While efficiency has been realized quickly, adoption of technology by operators has been surprisingly slow, McQuesten pointed out. "Companies continue to develop innovative and sustainable technologies that enable oil and gas companies to mitigate price and maximize production at the well site," he said.

    The webinar is free, but registration is necessary. To register, visit the Penn State Extension Natural Gas Events Web page. More information is available on the website or by contacting Carol Loveland at 570-320-4429 or cal24@psu.edu.

    Penn State Extension's Marcellus Education Team provides monthly webinars on a variety of topics. Upcoming webinars include the following: March 3: "Pipeline Infrastructure Taskforce Report: Review and Next Steps," presented by Kenneth Klemow, associate director of the Institute for Energy and Environmental Research, Wilkes University, and Dave Messersmith, Penn State Extension Marcellus Education Team educator.March 10: "Renewed Competitiveness for U.S. Plastics from Shale Energy," presented by Martha Gilchrist Moore, senior director, policy analysis and economics, American Chemistry Council.April 28: "Evolving Roles of Shale Gas in Central and Distributed Power Generation Scenarios," presented by James Freihaut, Penn State agricultural engineer, who is technical director of the Energy Efficient Buildings Hub at the Philadelphia Navy Yard.

    Previous webinars, publications and information also are available on the Penn State Extension natural-gas website, covering a variety of topics, such as Act 13; seismic testing; methane emissions; water use and quality; natural gas liquids regional development; natural gas reserves; gas-leasing considerations for landowners; legal issues surrounding gas development; and the impact of Marcellus gas development on forestland.

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11. EPA Advisers Advance Review on Fracking Study

    Feb 17, 2016 | BNA Daily Environment Report

    By Alan Kovski

    The latest version of a draft review of the Environmental Protection Agency's study of the risks to drinking water from hydraulic fracturing calling on the agency to incorporate more information on things like the probability of well failure was posted online Feb. 16 by the agency's Science Advisory Board.

    The draft represents a mid-stage step in shaping up the review by a panel of the SAB, with an expectation that the panel will put finishing touches on the review in the spring. Then the full SAB will have its turn before a final version can go to the EPA.

    The new document from the SAB panel embodied the tentative elements discussed Feb. 1–2 by teleconference. The science advisers spent much time going over their questions about the EPA's summary statement that it had found no evidence of hydraulic fracturing having “widespread, systemic impacts” on drinking water (21 DEN A-9, 2/2/16).

    In the latest formulation, the advisory panel's critique recommends the EPA revise its summary statements of findings in the executive summary and elsewhere in the report to be more precise, and to clearly link the statements to evidence provided in the body of the study.

    The overview statements in the executive summary “appear inconsistent with the observations, data, and levels of uncertainty presented and discussed in the body of the draft Assessment Report,” the new document said.

    More Information Wanted

    The panel's recommended changes as they now stand would add substantially to the length of the EPA study, which was issued in “draft final” version in June 2015 at 998 pages in length (108 DEN A-1, 6/5/15).

    The latest document from the science advisers called for the EPA to add to its report information on the probability and risk of well failure scenarios, more information on spills and releases of water produced from oil and natural gas wells, more toxicological information on fracking chemicals, descriptions of best management practices and details on state regulations.

    The document also called more information on radioactive materials that can emerge from a well along with water and said the EPA “should emphasize these as topics of significant concern.”

    The EPA study explored issues of water supply, use, pollution and disposal in hydraulic fracturing, or fracking, the technique of creating subsurface fractures for the flow of oil or natural gas to a well. The technique is rapidly evolving—another point the draft review said is in need of emphasis or clarification.

    Public Perceptions Addressed

    The draft review said the EPA should show a greater recognition of the potential for significant localized impacts even if national data do not look troublesome.

    The advisers also wanted the report tailored more for the general public, to address public perceptions about fracking risks.

    The review said the EPA should include information on three “high-visibility” cases—the pollution found in water wells near fracked gas or oil wells in Dimock, Pa., Pavillion, Wyo., and Parker County, Texas.

    Any conclusions and lessons learned in those cases should be included in the EPA study, the review said.

    Those are the three most politicized cases of the last several years. The EPA attempted to investigate them, encountered problems and backed out, leaving the cases to state regulators, who have more experience at overseeing oil and gas operations.

    Reports by state regulators in those cases seem to have satisfied no environmental activist groups or aggrieved homeowners, however. The SAB panel for the fracking study has heard repeatedly from activists and homeowners about the three cases.

     

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12. Sierra Club Sues Oklahoma Energy Companies Over Earthquakes

    Feb 17, 2016 | BNA Daily Environment Report

    By Paul Stinson

    The Sierra Club filed a federal lawsuit against three Oklahoma oil and gas companies Feb. 16, alleging that production waste from fracking and oil production have contributed to an “alarming” increase in earthquake activity in the state (Sierra Club v. Chesapeake Operating LLC, Okla. Dist. Ct., No. 5:16-cv-00134, 2/16/16).

    Filed in the U.S. District Court for the Western District of Oklahoma, the lawsuit arrives on the heels of a 5.1 magnitude earthquake on Feb. 13—the third-strongest recorded in the state. The lawsuit, filed against New Dominion LLC, Chesapeake Operating LLC and Devon Energy Production Co., demands the companies, as a first step, “reduce, immediately and substantially, the amounts of production wastes they are injecting into the ground.”

    “The bottom line is that the people of Oklahoma's safety should not come second to profits,” Oklahoma Sierra Club Director Johnson Bridgwater told Bloomberg BNA by e-mail Feb. 16. “Let's be clear on this—the only reason significant injection cuts have not occurred is because of the financial gains being made by the companies tied to the injection.”

    Plaintiff: Potential for Catastrophic Earthquake

    Following a 1975-2008 period that produced 56 earthquakes of magnitude 3.0 or greater, the state experienced 907 quakes of magnitude 3.0 or greater in 2015, according to the Sierra Club. Continued injection of production waste, the Sierra Club and Washington-based Public Justice said in the complaint, “may present an imminent and substantial endangerment to health and the environment.”

    “The science laid out in our case is clear,” said Paul Bland, executive director of Public Justice, serving as counsel for the plaintiff. “Oklahoma may be on the verge of experiencing a strong and potentially catastrophic earthquake. All evidence points to alarming seismic activity in and around fracking operations, and that activity is becoming more frequent and more severe.”

    Responding to a request for comment, a spokesman for Devon Energy told Bloomberg BNA in an e-mail that it would be “inappropriate” to discuss litigation.

    “We disagree with the Sierra Club's assertions and will address them in the appropriate forum,” Gordon Pennoyer, a spokesman for Chesapeake Energy told Bloomberg BNA. “Chesapeake respects the Oklahoma Corporation Commission's regulatory authority and technical expertise and is complying with the Commission's directives,” Pennoyer said in a Feb. 16 e-mail.

    Requests for comment to the other company named and to the Oklahoma Oil and Gas Association went without reply.

    Follows 2015 Notice of Intent to Sue

    The legal action follows the October 2015 issuance of a notice of intent to sue naming as defendants the Oklahoma-based energy companies of Sandridge Exploration and Production LLC, New Dominion LLC, Chesapeake Operating LLC and Devon Energy Production Co., alleging violations of the Resource Conservation and Recovery Act (RCRA), “resulting from the injection and disposal of waste fluids from the oil and fracking industries into the ground via wells in Oklahoma.” (214 DEN A-4, 11/5/15).

    Brought into force in 1976, the RCRA allows citizen lawsuits over hazardous waste.

    In an effort to illustrate the relationship between energy exploration and seismicity, the complaint refers to a visual aid, noting that an “Overlaying [of] the locations of Defendants’ wells onto the places where earthquakes above magnitude 3.5 have been felt shows that earthquakes are occurring in the vicinity of [the companies’] wells and along faults that are close to the wells.”

    Lawsuit Against SandRidge Expected in Spring

    SandRidge Energy is expected to be named in a separate lawsuit later in the spring, Richard Webster, the attorney heading up the legal team for Public Justice in the suit, told Bloomberg BNA.

    The plaintiffs elected to leave SandRidge out of the suit, due to timing concerns surrounding receipt of the notice letter, according to Webster.

    “Therefore, we decided to be cautious and wait until 90 days after full service before filing against them,” Webster said in a Feb. 16 e-mail, noting that they intend to sue SandRidge “for similar violations” of the RCRA when the notice period expires.

    “The ball is in the defendants’ courts,” Webster said. “We expect them to respond to us and then to get into discovery to see what they knew and when.”

    New Lawsuit Follows Residents' January Filing

    Lawsuits over energy exploration and earthquakes are becoming an increasingly present feature on the Oklahoma landscape, as the state continues to evolve its approach toward the state's increased levels of seismicity.

    Following a pair of earthquakes registering magnitudes of 4.3 and 4.2, residents of the city of Edmond—population 87,000—filed suit in early January against multiple oil companies. Alleging negligence, the plaintiffs claim the companies should have known disposal well activity would result in an increased likelihood of earthquakes (08 DEN A-8, 1/13/16).

    The Oklahoma Corporation Commission, the oSierra Club v. Chesapeake Operating LLC, Okla. Dist. Ct., No. 5:16-cv-00134, 2/16/16il and gas regulator in the state, continues to target saltwater disposal wells in the geologic formation known as the Arbuckle. In January, the OCC ordered the reduction of saltwater disposal volumes in areas of concern, marking the third such measure by the state in January alone (19 DEN A-10, 1/29/16).

     

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13. Sierra Sues Oil And Gas Companies Over Oklahoma Earthquakes

    Feb 16, 2016 | PoliticoPro - Whiteboard

    By Elana Schor

    The Sierra Club today filed a court challenge against three oil and gas companies active in Oklahoma over their wastewater injection practices, alleging a connection between drillers' underground disposal habits and a recent surge in earthquake activity in the state.

    The petition filed today in Oklahoma federal court seeks relief under the federal Resource Conservation and Recovery Act and follows a 5.1 earthquake that hit the state on Saturday. Sierra asked that the companies Devon, Chesapeake, and New Dominion "reduce immediately and substantially the amounts of Production Wastes [sic] they are injecting into the ground to levels that seismologists believe will not cause or contribute to increased earthquake frequency and severity."

    Erin Brockovich, the environmental-justice activist and lawyer, is set to visit Oklahoma next week for a public meeting on the wastewater injection-earthquakes issue.

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14. Greens Sue 3 Fracking Companies Over Okla Earthquakes

    Feb 16, 2016 | The Hill - E2 Wire

    By Timothy Cama

    A pair of environmental groups is suing three oil drilling companies over their responsibility for thousands of earthquakes in Oklahoma.

    Devon Energy Corp., Chesapeake Energy Corp. and New Dominion all using hydraulic fracturing on Oklahoma to drill for oil and inject the wastewater underground, which has been identified as the leading cause of the recent growth in earthquakes in the state.The Sierra Club and Public Justice filed the lawsuit Tuesday in federal court, saying they want the companies to be held responsible for the damage from the quakes, including a 5.1 magnitude on Saturday.

    “The science laid out in our case is clear. Oklahoma may be on the verge of experiencing a strong and potentially catastrophic earthquake,” Paul Bland, executive director of Public Justice, said in a statement.

    “This lawsuit, which we filed after the three companies named in our suit refused to take steps of their own, is an action brought by residents of Oklahoma in an attempt to protect their property, their communities and their lives,” he said.

    “Oklahomans, just as all Americans do, deserve the right to live in peace and comfort — not to live in fear of man-made earthquakes,” said Johnson Bridgwater, Director of Sierra Club’s Oklahoma chapter. “It is our hope that these three companies will recognize the immediate danger they are putting communities in, and put our health and our environment ahead of its profits.”

    After years of outside researchers making the link, Oklahoma formally concluded last year that wastewater injections were causing earthquakes.

    The state now asks energy companies to avoid or reduce injections near known faults, but regulators have not tried to enforce those requests.

    Devon and Chesapeake did not respond to requests for comment from the Oklahoman Tuesday, and New Dominion could not be reached, the newspaper said.

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15. 'Keep It In The Ground' Activist Claims Leases After BLM Auction

    Feb 16, 2016 | E&E News PM

    By Phil Taylor and Scott Streater

    A well-known author and conservationist said she purchased an oil and gas lease today from the Bureau of Land Management in Salt Lake City to protest drilling on public lands.

    Terry Tempest Williams purchased three parcels, one of which was 800 acres and located 14 miles from Arches National Park, she said in a statement forwarded by an activist at the Center for Biological Diversity.

    It's the latest bid by environmentalists to force the Obama administration to halt the leasing of oil, gas and coal from public lands in the West. Dozens of activists in the "Keep It in the Ground" campaign today protested BLM's oil and gas auction downtown, warning that burning fossil fuels will hasten climate change.

    Tempest Williams said her firm Tempest Exploration bid on the parcels for $1.50 per acre. She appears to have no intent to drill.

    "They can't limit our definition of energy," said Tempest Williams. "We're talking about the energy of a movement to keep it in the ground."

    BLM could not confirm Tempest Williams' bid.

    "We haven't had a confirmation that she has indeed submitted a bid on any of the parcels," said Don Smurthwaite, BLM Utah spokesman. "It could just be a matter of time because it does appear to be her intent to do so."

    Tempest Williams' apparent bids fall under the noncompetitive portion of the federal lease process. The deadline to file noncompetitive bids is by the end of the next business day, which in this case would be the close of business tomorrow.

    "It's her call," Smurthwaite said.

    Noncompetitive leases apply only to parcels that BLM had offered in a competitive bid but that failed to receive a bid during the bidding process.

    Anyone who is 18 years of age or older can submit a noncompetitive bid as long as the bid includes payment of an administrative fee -- $460 -- and the first year's rental payment of $1.50 per acre.

    It's unclear whether Tempest Williams did anything to disrupt the BLM sale, which would carry legal risks.

    In late 2008, a 27-year-old environmental activist named Tim DeChristopher disrupted a BLM auction in Utah by snatching up 14 parcels totaling 22,500 acres for $1.8 million with no plans to pay. A federal judge later sentenced him to two years in prison and assessed a $10,000 fine.

    DeChristopher, who served time in jail, said today's protests are a "sign that the days of un-resisted fossil fuel development are over."

    "The public is clearly against the leasing of fossil fuels on public lands," he said. "They are charting a path for political leaders to follow."

    Protesters said they chanted inside the auction room at the Salt Palace Convention Center and temporarily disrupted the sale. Law enforcement ushered them out.

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16. Greens Wary Of Srinivasan's Fossil Fuel Past

    Feb 16, 2016 | PoliticoPro

    By Elana Schor

    The prospect of President Barack Obama tapping Sri Srinivasan for the Supreme Court is spawning a sharp debate among at least one part of the Democrats’ liberal grass roots — environmentalists turned off by his high-profile defense of giant fossil fuel companies.

    The federal appellate court judge has emerged as an early favorite to replace the late Justice Antonin Scalia, given Srinivasan’s sterling educational and professional credentials, his bipartisan work history and his inspiring biography as an immigrant who has risen to the highest ranks of the legal profession. But his history of representing large corporations runs the risk of alienating Obama allies looking to gauge his still-developing record on key liberal priorities.

    Srinivasan’s work on human rights cases in which he defended ExxonMobil and the mining company Rio Tinto have raised particular objections from environmentalists. He also represented that enduring symbol of corporate excess, former Enron CEO Jeff Skilling, in the appeal of the executive’s fraud and conspiracy convictions.

    "Any judge that sides with Big Oil over the American people has no place on our Supreme Court,” said Jane Kleeb, a Nebraska activist who helped lead the grass-roots campaign that killed the Keystone XL oil pipeline, in an email to POLITICO on Tuesday.

    “Corporate interests have trumped citizens’ concerns for too long,” she added. “Folks in the heartland will not look the other way of Srinivasan representing both Enron and Exxon, which denies climate science and pollutes our land and water.”

    Jamie Henn, co-founder of the green group 350.org, called Srinivasan’s work for Exxon a “deeply disturbing” aspect of a “mixed” resume. During his time at the firm O’Melveny & Myers, Srinivasan represented Exxon in a long-running battle over alleged human rights abuses by members of the Indonesian military whom the oil giant had hired to work on security at a major natural gas plant.

    "We hope that knowing what we all now know about Exxon and its deceit, he wouldn't still want to work for them,” Henn said by email. “No decent person should."

    Another environmentalist tracking the nomination said activists “are aware of Srinivasan's troubling history representing Exxon … but honestly I don't think anyone has made up their mind.”

    Exxon declined Tuesday to comment on the debate over Srinivasan's work representing the company.
    
    The discussion among activists began over the weekend following the news of Scalia’s death, which occurred just days after he and the four other conservative justices shocked the administration by ordering an indefinite delay in Obama’s marquee climate change regulations.

    Greens held a spirited debate about Srinivasan on Tuesday afternoon during a conference call among representatives of several groups, according to one activist familiar with the discussions. They decided to keep evaluating Srinivasan's record before making more definitive statements.

    The challenge Srinivasan’s nomination would pose to environmentalists mirrors the struggle many of the activists face in the Democratic presidential primary, in which Bernie Sanders has captured green hearts with his blanket disavowals of the fossil fuel industry’s influence — something Hillary Clinton is only lately trying to match.

    Srinivasan’s work for Exxon and Rio Tinto, in a since-dismissed dispute over human rights violations in Papua New Guinea, sparked harsh criticism from one green group after Obama tapped him for the D.C. Circuit Court of Appeals in 2012.

    The India-born judge, who emigrated to the U.S. as a young child, “repeatedly took extreme positions that would demolish one of the few existing avenues of legal accountability for violations of the international law of human rights,” EarthRights International wrote to senators in 2013. ERI told POLITICO on Tuesday that "we have reconsidered our position" and neither support nor oppose his possible nomination to the Supreme Court, "although we continue to believe the Senate should receive full information about his work as a government lawyer that may have benefited his former corporate clients."

    ERI may well have shifted thanks to several Srinivasan decisions that upheld environmental regulations since he joined the D.C. appeals court. That court is often a proving ground for jurists on the Supreme Court shortlist.

    One of his earliest rulings has had a notable impact on environmental law: In 2014, Srinivasan joined two other D.C. Circuit judges in tossing out part of an Environmental Protection Agency cement rule that had shielded companies from lawsuits over pollution released during malfunctions. The EPA broadened the impact of that ruling by ordering states to drop similar corporate liability protections from their Clean Air Act compliance plans, which activists hailed as a win for low-income communities near power plants, refineries and other industrial sites.

    Whether or not Srinivasan's recent judicial record balances out his past corporate client list, some greens are more worried about Republicans' vow to keep Scalia's seat vacant until after Obama leaves office than about making climate change a top-tier issue during judicial confirmation debates.

    "We’re more focused on [Majority Leader Mitch] McConnell and other senators who have said there shouldn't be a nominee until after the election," League of Conservation Voters senior vice president Tiernan Sittenfeld said.

    Other environmentalists are counseling their fellow activists that private-sector lawyers — such as Srinivasan used to — "have a duty to argue, to the best of their ability, for their clients" regardless of their own values, in the words of Greenpeace attorney Naomi Ages.

    As for Srinivasan's harsher green critics, Ages said, "While I can't speak on their behalf, of course their knee-jerk reaction might be to question someone based on a client they’ve represented."

    Srinivasan's short confirmation hearing for the D.C. Circuit, in May 2013, offered little insight as to the potential overlap between his private-sector work and his public face on the bench.

    “I don’t have an overarching, grand unified judicial philosophy that I would bring with me to the bench,” Srinivasan told senators then, adding that he would “approach it in some sense in the position of a litigator.”

    Brad Johnson, executive director of the green group Climate Hawks Vote, was still skeptical of Srinivasan's corporate background. "There are enough fully qualified candidates for the Supreme Court that I personally don’t think it’s necessary to pick someone who you have to ask these questions about," he said Tuesday.

    Still, he added, activist groups are keenly aware that "to challenge President Obama on a decision is something that takes a lot of work to do correctly. It's important that the environmental movement be very clear with the American public about how crucial the Supreme Court is to the future of climate change."

    In various other cases since joining the appeals court, Srinivasan has sided with the Obama administration, including upholding an EPA program enhancing oversight of mine permits and keeping in place a $72 million fine against a Volvo subsidiary in a case involving cheating on emissions tests. Last year, he rejected various challenges from both environmentalists and industry groups to EPA's list of areas that failed to meet a 2008 standard for ozone pollution.

    Srinivasan joined two other judges in 2014 to say EPA had gone too far with a rule that eased some state deadlines for ozone compliance — a ruling that sided with environmental groups. He has also ruled that environmentalists could sue to seek historical protections that would block mining on a West Virginia mountain.

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17. Obama Intends To Nominate Scalia Replacement

    Feb 16, 2016 | PoliticoPro - Whiteboard

    By Nolan D. McCaskill

    President Barack Obama today said he intends to nominate a new Supreme Court justice to replace Antonin Scalia.

    “I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” Obama said, delivering remarks from Omni Rancho Las Palmas in Rancho Mirage, California.

    Scalia, 79, died Saturday in Texas. His death leaves the Supreme Court with an even split of Republican and Democratic appointees during an election year.

    Senate Majority Leader Mitch McConnell called on Obama to leave the nomination for Scalia’s replacement to the next president. “The American people should have a voice in the selection of their next Supreme Court Justice,” he said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

    Senate Minority Leader Harry Reid expressed opposition to leaving Scalia’s seat unfilled for so long. The next president won’t be inaugurated until January 2017.

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18. Observers: Without Scalia, Clean Power Plan's Odds Boosted

    Feb 17, 2016 | BNA Daily Environment Report

    By Anthony Adragna

    The death of Supreme Court Justice Antonin Scalia immediately increases the odds the Environmental Protection Agency's Clean Power Plan survives judicial review, attorneys and other observers told Bloomberg BNA Feb. 16.

    Having just eight justices on the high court will further raise the stakes for the regulation in the federal appeals court, because a 4-4 ideological split at the Supreme Court would result in the lower court's decision being upheld, multiple attorneys said. The rule's fate may also depend on whether a Democratic or Republican president subsequently selects Scalia's replacement.

    But Scalia's death immediately removes one of the most skeptical justices of federal agency regulations and an expected vote against the EPA's rule. It also comes just days after the Supreme Court's five conservative justices, including Scalia, granted an unprecedented stay of the Clean Power Plan (West Virginia v. EPA, U.S., No. 15A773, order issued 2/9/16).

    “It's an amazing sequence of events,” Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA. “The Clean Power Plan proponents got the news of the stay and then suddenly Justice Scalia died and everything turned upside down.”

    Greater Stakes at D.C. Circuit

    The high court vacancy will not have an immediate impact on the unfolding fight over the Clean Power Plan at the U.S. Court of Appeals for the District of Columbia Circuit, Thomas Lorenzen, a partner at Crowell & Moring LLP who represents the National Rural Electric Cooperative Association in the litigation, told Bloomberg BNA.

    The Supreme Court's Feb. 9 surprise stay of the regulation will remain in effect. Oral arguments in the D.C. Circuit are slated June 2 before a panel of two Democratic appointees—Judges Judith Rogers and Sri Srinivasan—and Republican appointee Judge Karen LeCraft Henderson (27 DEN A-1, 2/10/16).

    “Given that the D.C. Circuit panel has two Democratic appointees and the entire [D.C. Circuit] court, if it decides to hear the case, is very liberal leaning, EPA is poised for a win in the lower court,” Brian Potts, a partner at Foley & Lardner LLP who is not involved with the litigation, told Bloomberg BNA.

    “Before Justice Scalia's death, it was hard to see how it mattered very much what the D.C. Circuit decided about the Clean Power Plan. Now there is at least an outside possibility that an eight-member Supreme Court could split on the law's legality … That means the proceedings in the D.C. Circuit later this year will take on a much greater importance.”

    Philip Wallach, a senior fellow at the Brookings Institution

    Most observers believe the panel favors EPA, but that whoever loses in the D.C. Circuit will ask the Supreme Court to review the EPA's regulation (RIN 2060-AR33) curbing carbon dioxide emissions from existing power plants (West Virginia v. EPA, D.D.C., No. 15-1363, order issued 1/21/16).

    “After that, things get very interesting,” Lorenzen said. “We're in really uncharted territory here. No one knows how this will play out.”

    Many Scenarios Possible

    Key Litigation Dates at D.C. Circuit

    • Feb. 19: Petitioner briefs due.

    • Feb. 23: Briefs from intervenors and amici supporting petitioners due.

    • March 28: The EPA's brief due.

    • March 29: The EPA's intervenors' briefs due.

    • April 1: Briefs from amici in support of the EPA due.

    • April 15: Petitioner reply briefs due.

    • June 2: Argument is scheduled to begin.

    One factor that could impact the case is whether Senate Republicans follow through on their threat not to consider anyone President Barack Obama nominates to the Supreme Court during the remainder of his presidency. Such a result might leave the high court without a ninth justice well into 2017, when the Clean Power Plan would be ready for consideration.

    Were the regulation to survive scrutiny at the D.C. Circuit—and assuming an eight-justice Supreme Court then agreed to hear an appeal—a 4-4 split Supreme Court would leave it in place. If the federal appeals court instead struck it down, a divided high court would leave the regulation overturned.

    “Before Justice Scalia's death, it was hard to see how it mattered very much what the D.C. Circuit decided about the Clean Power Plan,” Philip Wallach, a senior fellow at the Brookings Institution, said in an e-mail. “Now there is at least an outside possibility that an eight-member Supreme Court could split on the law's legality, leaving the D.C. Circuit's opinion as the effective judgment. That means the proceedings in the D.C. Circuit later this year will take on a much greater importance.”

    If an Obama or a nominee appointed by a future Democratic president made it onto the court, that justice could provide a crucial fifth vote to uphold the regulation, attorneys said. A Republican appointee might keep the current court balance that was seen as likely to overturn the regulation.

    “I think people took the signal from the stay that was issued by the Supreme Court that at least five on the court were inclined to be skeptical of the agency's legal basis for the rule,” Jonathan Cannon, law professor at the University of Virginia and former EPA general counsel, told Bloomberg BNA. “Since Justice Scalia was one of the five, his absence from the court will throw the issue into greater uncertainty until we have an appointee.”

    Political Vulnerability Seen for Republicans

    Beyond the impact to ongoing litigation, Scalia's death and the apparent unwillingness from Senate Republicans to consider a replacement will likely help a elect a Democratic president willing to appoint a justice favorable to the Clean Power Plan, Paul Bledsoe, a former White House energy aide under Democrat Bill Clinton, said.

    “I believe that the Democratic nominee should press climate change as a profound electoral vulnerability for Republicans in the general election, including the near certitude a Republican president would undermine the Obama regulatory actions to curb emissions,” Bledsoe, now an independent energy consultant, told Bloomberg BNA. “The chances that the Clean Power Plan will be upheld were just greatly increased for both technical legal reasons and the changed political dynamic.”

    Speculation was already rampant within legal circles about whom Obama might pick to the fill the vacancy. One intriguing option is Srinivasan, who sits on the D.C. Circuit panel slated to consider the Clean Power Plan and cleared the Senate in May 2013 on a 97-0 vote.

    Attorneys doubted whether any Obama nominee could make it through the confirmation process in 2016, but Lorenzen called Srinivasan a “brilliant and capable judge.” Bledsoe said Srinivasan's qualifications and broad support would make him an excellent choice by the White House.

    “I think it makes sense for the president to pick someone who under any normal circumstances who would be easily confirmed,” Bledsoe said. “That would put maximum pressure on Republicans and highlight their stonewalling.”

    Industry Remains Confident

    Industry groups and attorneys opposing the regulation said the rule remained in trouble due to significant legal vulnerabilities and urged states to stop efforts to comply with it pending the completion of all legal challenges.

    “Despite the tragic passing of Justice Scalia, this unlawful regulation remains very much in jeopardy,” Chris Warren, a spokesman for the American Energy Alliance, told Bloomberg BNA. “The fact remains that the best way for state leaders to protect citizens from this rule and higher electricity rates is by immediately stopping all work on compliance plans, at least until the legal challenges are resolved.”

    Two states—Michigan and Wisconsin—did just that by announcing they would suspend compliance efforts pending the resolution of legal challenges. Gov. Scott Walker (R-Wis.) issued a Feb. 15executive order suspending planning activities, while Michigan did so in a Feb. 16 press release. Alabama has previously announced it would halt its compliance efforts as states processed the implications of the Supreme Court's stay order (30 DEN A-6, 2/16/16).

     

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19. Next Supreme Court Justice Will Be Crucial to Climate Change

    Feb 16, 2016 | The New York Times

    By Eduardo Porter

    The United States sure knows how to throw cold water on international harmony.

    Just two months have passed since the world’s top diplomats cobbled together the best plan we’ve ever had to start curbing emissions of heat-trapping greenhouse gases. Yet already the Supreme Court of the United States said no, delaying much of the Obama administration’s strategy to deliver America’s contribution to the collective effort.

    The White House claims it will prevail, assuring a fidgety international community it will deliver on the promises made at the climate meeting in Paris in December. Those commitments proved critical to keeping the diplomacy on track and ultimately producing a deal among more than 185 countries representing more than 98 percent of global emissions. Continue reading the main story Related Coverage Supreme Court Deals Blow to Obama’s Efforts to Regulate Coal Emissions Court Rejects a Bid to Block Coal Plant Regulations Nations Approve Landmark Climate Accord in Paris

    And yet the Supreme Court’s temporary stay of the administration’s Clean Power Plan — the last decision of global consequence of the right-leaning court on which Justice Antonin Scalia had sat since the Reagan administration — underscores just how far the United States remains from its climate goals. Continue reading the main story Did the Supreme Court Just Kill the Paris Climate Deal? Maybe. We Explain.

    Answers to questions about the court’s decision to temporarily block the Obama administration’s effort to regulate emissions from coal-fired power plants.

    Consider the administration’s own assessments. Even as the American delegation in Paris offered to cut emissions to 26 to 28 percent below their 2005 levels by 2025, the Energy Information Administration of the Department of Energy was offering a different outlook.

    Its reference case, based on federal policies on the books at the end of 2014, forecast that emissions of carbon dioxide from energy use (the United States’ main source of greenhouse gases) would not decline but remain flat through 2025 and beyond. Economic Scene A column by Eduardo Porter that explores the world’s most urgent economic challenges.

    Methane emissions, which account for under 10 percent of greenhouse gases spewed into the atmosphere but trap much more heat than CO2, could increase 6 percent over the next 10 years, according to the Environmental Protection Agency. Emissions of highly potent hydrofluorocarbons could increase by half.

    What’s more, the carbon storage of American forests, which offset as much as 13 percent of the nation’s total greenhouse gas emissions in 2013, could start declining as early as 2020.

    These, of course, are not forecasts but projections. Emissions could fall faster because of new regulation, technological breakthroughs, changes in land use and the like. Some of the nation’s most critical policies to combat climate change were passed only last year. A case in point is the Clean Power Plan, the crown jewel of the lot, which would require states to come up with plans to reduce the CO2 emissions from their electric power plants.

    Still, the Supreme Court’s decision last week to delay the plan — until the United States Court of Appeals in Washington decides on the merits of a challenge by 27 mostly Republican-governed states — underscores just how politically vulnerable the United States’ promises truly are.

    Because for all the administration’s claims that it can deliver on its commitments regardless, the fact remains that even under the most optimistic outlook — if the Supreme Court’s stay were to melt away and the Power Plan were to work impeccably — current policies do not get us there.

    Last month, before the Supreme Court’s decision, the Rhodium Group, a research firm that has performed extensive analysis of climate-change projections, published a report concluding that even if the administration executed all its existing and planned policies with maximum effect, and the most optimistic forecasts for technological development and forest sink capacity were borne out, the United States would still not hit the target.

    Using different assumptions — say, if the economy grew faster or energy technology didn’t progress as fast — it would remain even further behind. Assuming all the administration’s current and proposed policies were carried out, the analysis suggests that by 2025 American greenhouse gas emissions would be, at best, 23 percent lower than in 2005. In the worst case they would be only 10 percent lower.
    

    The Supreme Court decision temporarily blocked the Obama administration’s rule to regulate carbon dioxide emissions from coal-fired plants.

    That suggests we should hurry. “While the U.S. still has nearly a decade to put additional policy in place,” the report notes, “it will need to do so relatively quickly for the impact to be felt by the time the 2025 pledge comes due.”

    The pledges offered in Paris are not a magic number. They are important nonetheless. Stiff cuts by the United States, the world’s second-largest emitter, after China, were crucial to holding the international coalition together. These cuts are supposed to be just the beginning of a process of increasingly stringent emissions limits.

    How will the United States get there, then? The Rhodium Group’s analysis proposes stricter limits for transportation and for electric power generation, which would remain the largest emitter of greenhouse gases in the country over the next decade even if the Clean Power Plan were put in place.

    One idea would be further tightening the fuel economy standards for cars and trucks. The report suggests looking at emissions by the industrial sector — the third-largest emitter — which under current policies are expected to increase by 18 percent by 2025. Land use policies to enhance the forest carbon sink and tighter rules to reduce methane emissions from oil and gas could also help.

    But these proposals just underscore how the American problem is first and foremost political. It is critical, the report concludes, “that policy makers now engage in a broad exploration and frank discussion of what additional steps can help deliver on America’s climate goals.” It will be difficult to hold this discussion when Congress is run by a party that rejects climate science.

    We have known about these obstacles for some time. The Obama administration’s plan to repurpose the Clean Air Act rather than propose new legislation to combat climate change acknowledged that the courts offered a better shot than Congress.

    And in that regard, the news is not entirely bad. If the Senate were to confirm whomever President Obama nominates to succeed Justice Scalia, one of the most conservative justices on the bench, the Supreme Court would probably become more sensitive to the imperative to combat climate change. That’s not just good news for the Clean Power Plan. It could open the door to more aggressive policies.

    Last month, for instance, scholars from the law schools of Columbia University, New York University and the University of California, Los Angeles, released a report that suggested there is a provision in the Clean Air Act that would allow the E.P.A. to require states to reduce emissions that endangered other countries if such countries provided reciprocal protections to the United States.

    “E.P.A. and the states could use the provision to establish an economywide, market-based approach for reducing greenhouse gas emissions,” the group wrote. “Such a program could provide one of the most effective and efficient means to address climate change pollution in the United States.”

    Last week, this kind of thinking would have been unlikely to survive a spin through the Supreme Court. But perhaps it could survive a different one — maybe one that placed more weight on international harmony.

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20. Michigan Won't Finalize Climate Plan Until Court Fight Ends

    Feb 16, 2016 | The Hill - E2 Wire

    By Devin Henry

    Michigan Gov. Rick Snyder’s administration won't comply with President Obama’s climate rule for power plants until legal fights over it conclude.

    The Michigan Agency for Energy (MAE) said Tuesday that, after reviewing last week's Supreme Court-issued stay against the Clean Power Plan, it will “suspend activities to comply with the rule and its timeline for submissions.”The state will complete a climate-modeling project that it’s already paid for, the agency said, and “those findings will be helpful for other planning and compliance activities.”

    Michigan was among 26 states that sued the Environmental Protection Agency over the Clean Power Plan. Unlike some of the states, though, Snyder, a Republican, initially said Michigan would move forward with a compliance plan. That position put him at odds with the state’s Republican Attorney General, Bill Schuette, who praised the stay last week.

    “The Obama administration’s Environmental Protection Agency has once again been stopped from an attempt to push beyond its constitutional powers,” Schuette said after the Supreme Court announced its stay order for the power plant rule.

    “The EPA continues to show that they don’t take the real world into account when they make sweeping rules that change daily life for average Americans.”

    The Michigan Agency for Energy noted that, despite suspending its carbon rule compliance, state officials will push forward with a plan to close a slate of coal-fired power plants in the state by 2020. Snyder was also among 17 governors to launch Tuesday the “Governor’s Accord for a New Energy Future,” a push to clean up state energy and transportation sectors.  

    "This partnership will help us further adapt and identify best practices as we work to make energy more affordable, reliable and environmentally protective,” he said in a statement.

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21. Scott Walker Orders Wisconsin Not To Comply With Obama Climate Rule

    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 Supreme Court order to delay the regulations as a reason for not working toward compliance.“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 carbon dioxide emissions from the electricity sector by setting state-by-state reduction goals. The delay, called a "stay" in legal terminology, means states won’t have to write compliance plans and submit them to the Environmental Protection Agency (EPA) unless the rule is validated by the courts.  

    Several Republican-led states, including Wisconsin, sued to block the rule. Since the stay, many have reaffirmed that they won’t be 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. 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, saying the ruling “doesn’t mean we won't continue to support any state that voluntarily wants to move forward.”

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22. Battle Over Court Pick Has Pragmatic, Partisan Elements

    Feb 17, 2016 | BNA Daily Environment Report

    By Mike Dorning

    President Barack Obama's choices for replacing Justice Antonin Scalia on the U.S. Supreme Court come down to firing up the Democratic base with a decidedly liberal jurist who can't be confirmed, or offering Senate Republicans a more moderate candidate they could support.

    The decision will overshadow Obama's remaining 11 months in office and shape his legacy. Either choice risks creating unparalleled gridlock with congressional Republicans that would mean Obama's final days in office would be devoured by the bitter partisan warfare he came to Washington to erase.

    Based on Obama's precedent with judicial vacancies, he would be expected to choose a moderate with a shot at ascending to the high court, however unlikely that path might be. Pressure is sure to come from some in his party to take advantage of the inevitable showdown with Republicans—who have vowed to stop any Obama nominee—and showcase a nominee who would inspire Democratic activists in the election.

    These Democrats bet they can embarrass Senate Majority Leader Mitch McConnell (R-Ky.) and Republican presidential candidates for playing politics with what is supposed to be the last remaining unspoiled and nonpartisan institution in Washington, the Supreme Court—with the White House and control of the Senate on the line in 2016 elections. McConnell has said he will block any Obama nominee.

    Focus on Winning

    But choosing a nominee intended almost exclusively to inspire the Democratic Party's liberal wing would be a sharp break for a White House that to date has focused on winning confirmation for judicial nominees over making symbolic statements, according to three former administration officials, all of whom spoke on condition of anonymity to discuss internal deliberations.

    Most of the White House's past preparatory work on Supreme Court candidates has focused on people with appeal across party lines, one of the former officials said.

    As recently as last spring, the White House refreshed vetting a field of 15 to 20 potential Supreme Court picks, one former official said. But there were no specific contingency plans for replacement of a conservative justice in an election year.

    Obama said Feb. 13 that he would send a nomination to the Senate despite statements by McConnell and other Republican lawmakers that they won't vote hold a vote. But there's also no hurry; the Senate is taking the week off.

    ‘In Due Time.'

    “We don't expect the president to rush this through this week, but instead will do so in due time once the Senate returns from their recess,” White House spokesman Eric Schultz said in California, where Obama will open a summit Feb. 15 with Southeast Asian leaders.

    A Supreme Court nominee who would inspire the Democrats' liberal wing could address one of the party's biggest election-year problems: an enthusiasm gap. Republicans are more likely to tell pollsters they plan to vote in November.

    That political challenge is underscored by the weakness former Secretary of State Hillary Clinton has shown in early primary contests in Iowa and New Hampshire. While she remains the front-runner in national polls, she has had difficulty rallying party activists to her candidacy. Even with her challenger, Sen. Bernie Sanders (I-Vt.), claiming to energize a whole cadre of disaffected voters, turnout in the first two Democratic nominating contests was well below 2008 levels, when Obama first ran for the White House.

    Political Opportunity

    Either way, the Supreme Court vacancy poses an opportunity for Obama and the Democrats, with Senate Republicans arguing that a sitting president with almost a year left in his term should be denied a chance to offer a nominee.

    The president's party is mobilizing for a confrontation. The White House coordinated messaging strategy in a conference call Feb. 14 with allies who regularly appear on television, said one Democratic Party operative, who asked for anonymity because the call wasn't public.

    But the administration's inclinations toward cross-party appeal could be seen in unofficial lists of potential nominees floating in Washington following news Saturday of Scalia's death while on vacation in Texas. Controversial heroes of the left such as Sen. Elizabeth Warren (D-Mass.) and California Supreme Court Justice Goodwin Liu were missing.

    Senate Contests

    A nominee the administration can present as a moderate has the potential to put Republicans in a bind both on the national stage and in key Senate races that could determine control of the Senate by underscoring Democratic portraits of Republican intransigence, said Anita Dunn, a former Obama communications strategist.

    “It injects front and center the obstructionism issue in a real way for people,” Dunn said.

    Democratic Senate leaders were already laying groundwork for such a strategy on television Sunday.

    “I believe that many of the mainstream Republicans, when the president nominates a mainstream nominee, will not want to follow Mitch McConnell over the cliff,” Sen. Charles Schumer (D-N.Y.) said on ABC's “This Week.” “When you go right off the bat and say, ‘I don't care who he nominates, I am going to oppose him,' that's not going to fly,” he added.

    Political Blowback

    Sen. Patrick Leahy (D-Vt.), who sits on the Judiciary Committee, predicted electoral blowback for the GOP.

    “If the Republican leadership refuses to even hold a hearing, I think that is going to guarantee they're going to lose control of the Senate,” Leahy told CNN.

    Sen. Ted Cruz (R-Texas), one of the leading contenders for the Republican presidential nomination, said he wants to make the 2016 election a referendum on the Supreme Court. “If the Democrats want to replace this nominee, they need to win the election,” he said Sunday on ABC's “This Week” program.

    Republicans hold 54 seats out of 100 in the Senate, giving them the power to carry through on the threat. That's if they stick together. There are 24 Republican Senate seats up for election in November and only 10 currently held by Democrats.

    Republican Incumbents

    Five incumbent Republicans facing voters in states won twice by Obama are under the most pressure: Sens. Mark Kirk (Ill.), Ron Johnson (Wis.), Kelly Ayotte (N.H.), Rob Portman (Ohio) and Pat Toomey (Pa.). Republicans also are defending an open seat in Florida, where Sen. Marco Rubio has declared he won't run for re-election.

    Johnson and Ayotte on Feb. 14 said that they stand with McConnell.

    The administration has emphasized ethnic and gender diversity in judicial appointments, even as it has avoided ideological roadblocks to confirmation, setting records in its appointments of women, minorities and openly gay judges. Both Obama's previous Supreme Court appointees are women, one of whom is the first Hispanic to serve on the court, Justice Sonia M. Sotomayor.

    That suggests a possible template for an election-year appointment who would show deference to Republican ideological concerns while appealing to ethnic or gender pride. One such potential nominee is Indian-born Sri Srinivasan, 48, an Obama appointee who in 2013 was confirmed 97-0 to a seat on the U.S. Court of Appeals for the District of Columbia Circuit and would be the first Asian-American Supreme Court justice. Another contender with potential bipartisan appeal is Srinivasan's appeals court colleague, Merrick Garland, 63, whom Obama considered for Supreme Court openings in 2009 and 2010. At the time, Garland had support from prominent Republicans, including Sen. Orrin Hatch (R-Utah).

    Srinivasan is part of a D.C. Circuit panel that will hear a case in the unfolding fight over the EPA Clean Power Plan (see related story).

    Even if an Obama nominee isn't confirmed before the election, his choice may leave a legacy on the court. Should a Democrat win the presidential election and the nominee demonstrate enough cross-party appeal to overcome a Republican filibuster, he or she would likely be the leading candidate for re-nomination in 2017.

     

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23. CBD Eyes Suit To Force Revised EPA Ozone Designations

    Feb 16, 2016 | InsideEPA

    The environmental group Center for Biological Diversity (CBD) is threatening EPA with a lawsuit over what it says is the agency's failure to meet a statutory deadline for revising the status of several areas that are not attaining the agency's 2008 ozone national ambient air quality standard (NAAQS) of 75 parts per billion (ppb).

    In a Feb. 12 letter to EPA Administrator Gina McCarthy, CBD gives the agency 60 days notice of its intent to sue over EPA's failure to redesignate 19 areas that are currently classed in “marginal” nonattainment with the ozone standard.

    Under the Clean Air Act, if marginal areas do not attain the NAAQS within three years of designation -- in this case, July 20, 2015 -- EPA has six months to publish a notice saying whether the areas attained by this deadline. The three years may be extended by one year, subject to states meeting certain conditions.

    Failure to attain the ozone standard by the attainment deadline requires EPA to redesignate the marginal area in question to more serious “moderate” nonattainment status, which triggers stricter air quality planning requirements for local air regulators and potentially the need to impose tougher pollution controls on local pollution sources.

    However, “EPA has failed to fulfill both these mandatory duties for the Metro Cleveland, Houston, Philadelphia, Pittsburgh, San Luis Obispo, Sheboygan, St. Louis, Washington, D.C., Atlanta, Chicago, Denver, Greater Connecticut, Imperial County, Kern County, Mariposa County, CA, Nevada County, CA, New York, Phoenix, and San Diego nonattainment areas,” CBD says in the letter.

    Ultimately, failure by states to submit state implementation plans (SIPs) deemed adequate by EPA to meet the NAAQS could result in EPA directly regulating pollution sources itself through a federal implementation plan instead, and also the loss of federal highway funding to the state. Areas in moderate or worse nonattainment must submit specific SIPs showing how they will comply, while marginal areas can rely on more general “infrastructure” SIPs but escape the tougher nonattainment SIP requirement.

    EPA adopted a new, tougher ozone NAAQS of 70 ppb on Oct. 1, but is still moving to implement the older 75 ppb standard after it was delayed for years by litigation.

    The agency proposed Aug. 27 to either “bump up” several marginal nonattainment areas to moderate status or to extend their marginal status by up to one year.

    However, environmental law firm Earthjustice in its Sept. 28 comments on the proposal said the deadline extension is unlawful, because the agency has not ensured that states have taken all necessary steps under the air law to qualify. “EPA has made no substantive inquiry” into whether states have complied with all air law requirements, Earthjustice says.

    Further, Earthjustice said that EPA's proposal to extend the deadline for areas reclassified as “moderate” to submit certain SIP revisions required under the air law to at least Jan. 1, 2017, “is illegal and arbitrary. Indeed, EPA has failed to articulate a legally sufficient basis for extending the SIP submittal deadlines at all.” Once EPA finalizes the proposal, Earthjustice would then have 60 days to file suit.

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24. Scalia's Influence Extends Over Water Rule Opponents

    Feb 17, 2016 | BNA Daily Environment Report

    By Amena H. Saiyid

    Former U.S. Supreme Court Justice Antonin Scalia's narrow textual reading of the Clean Water Act in a 2006 ruling influenced not only litigation but also legislation against the Obama administration's rule to clarify the scope of the statute, according to attorneys interviewed by Bloomberg BNA.

    Scalia, who was found dead Feb. 13 at a resort ranch in west Texas, sought a “common-sense” reading of the Clean Water Act in his plurality opinion in Rapanos v. United States (547 U.S. 715, 62 ERC 1481 (U.S. 2006); (118 DEN A-1, 6/20/06).

    Scalia contended that jurisdiction under the statute ought to be extended to waters that have a “continuous surface connection” to relatively permanent bodies of water “as opposed to ordinarily dry channels through which water occasionally or intermittently flows.”

    Rule Issued in 2015

    When the Environmental Protection Agency and the U.S. Army Corps of Engineers jointly promulgated the Clean Water Rule—commonly known as the waters of the U.S. rule (WOTUS)—in June 2015 to clarify the reach of the Clean Water Act, 32 states and dozens of national and regional industry groups, including the American Farm Bureau Federation, challenged the rule.

    A major issue is jurisdictional claims over waters that have ephemeral and intermittent flows, among other objections. It is now a matter of time before challenges filed in dozens of federal district and appellate courts to the rule reach the Supreme Court, if not on the merits of the rule, then on the venue for hearing the case (05 DEN A-13, 1/8/16).

    Bill Influenced by Scalia's Language

    “Scalia's interpretation did influence the rationale of those opposed to the rule,” observed Lowell Rothschild, senior attorney with the Houston office of Bracewell LLP.

    On the legislative side, the Senate in November took up, but did not pass, the Federal Water Quality Protection Act (S.1140), co-sponsored by Sens. John Barrasso (R-Wyo.) and Joe Donnelly (D-Ind.). The bill would have required a rewrite of the clean water rule to include streams that have enough flow to transport pollutants at levels that would impair traditional navigable waters (213 DEN A-18, 11/4/15).

    Don Parrish, senior regulatory relations director for the Farm Bureau that lobbied for passage of S.1140, agreed that Scalia's opinion in Rapanos has influenced legislative proposals.

    Wetlands Issue Unsettled

    In Rapanos, the Supreme Court sidestepped the question of whether federal jurisdiction extended to wetlands separated from tributaries by artificial barriers or to wetlands next to smaller tributaries that flow into larger navigable streams, lakes or rivers.

    That did not stop Scalia in his plurality opinion from slamming the corps for stretching the waters of the U.S. definition “beyond parody” by including ephemeral streams and dry desert arroyos, and disagreeing with the case-by-case test of jurisdiction involving subsurface hydrological connections among waters that Justice Anthony Kennedy articulated in his concurring opinion in Rapanos.

    Case-by-Case Test Adopted

    Kennedy's analysis of the case-by-case test was adopted by the corps and EPA in their rule to clarify jurisdiction over certain isolated wetlands that aren't directly connected to traditional navigable waters like rivers and lakes, but the agencies have determined they do affect the physical, chemical or biological integrity of downstream waters.

    “While Kennedy's analysis is more widely followed, Scalia's language certainly gave voice to those against WOTUS,” said Steven Miano, shareholder attorney with the Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller.

    Miano added that Scalia had a great deal of influence over Clean Water Act issues and “would likely have asserted that influence in upcoming cases, including WOTUS, when it reaches the court.”

    Scalia's influence would undoubtedly have come into play when the Supreme Court considers whether to accept the Farm Bureau's challenge to a plan crafted by the EPA in 2010 to restore the Chesapeake Bay, Miano said.

    Sackett Case Noted

    According to Justin Pidot, an assistant professor at the University of Denver Sturm College of Law, “Justice Scalia believed in a legal system where those burdened by regulation had a relatively easy time getting into court, but where those that benefit from regulation must generally use the political process, rather than the legal system, to get what they want,” Pidot said, pointing to the Sackettcase as an example.

    In Sackett, the Supreme Court held in March 2012 that a Clean Water Act administrative compliance order issued by the EPA prior to taking civil enforcement action was indeed subject to judicial review under the Administrative Procedure Act (Sackett v. EPA, 132 S. Ct. 1367, 73 ERC 2121, 2012 BL 67234 (2012); 55 DEN A-12, 3/22/12).

    Writing the unanimous decision, Scalia made his views on federal powers known, while signaling the court's intent to examine instances of federal actions to burden the regulated community.

    “And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong arming regulated parties in to ‘voluntary compliance' without the opportunity for judicial review—even judicial review of the question whether the regulated party is even within the EPA's jurisdiction,” Scalia said.

    Scalia Looms Over Hawkes

    So it came as no surprise when the Supreme Court agreed to review whether Clean Water Act jurisdictional determinations are final agency actions in U.S. Army Corps of Eng'rs v. Hawkes Co. (U.S., 15-00290, 1/29/16, U.S., No. 15-00290, 1/29/16); 20 DEN A-2, 2/1/16).

    That is because Scalia's opinion in Sackett opened the door for Hawkes, according to Timothy Bishop, a partner in the Chicago office of Mayer Brown LLP who is representing the Farm Bureau in its challenge of the jurisdiction rule and the Chesapeake Bay plan.

    Bishop expects the court to rule in favor of Hawkes because the jurisdictional determination challenged is just as final. “Hawkes like Sackett lacks any adequate remedy except a judicial challenge, so the result should be the same unanimous ruling as in Sackett,” he said.

    Possibility of 4-4 Tie

    On the off chance, there is a 4-4 tie in a Supreme Court on the WOTUS rule, the lower court decision would be upheld, according to all attorneys interviewed.

    In this instance, the opinion would be from the U.S. Court of Appeals for the Eighth Circuit, which upheld judicial review of the corps' determination. However, the Eighth Circuit's decision would be at odds with the 2014 holdings of the Fifth and Ninth circuits that jurisdictional determinations weren't final agency actions and couldn't be challenged.

    That means a patchwork of decisions could ensue in the circuit courts, according to Rothschild.

    Rothschild noted the EPA already has taken the unusual step of limiting the Eighth Circuit decision in Iowa League of Cities v. EPA to prohibit wet weather practices to the states that fall within the court's jurisdiction instead of applying it nationwide. “It could happen again,” he said, as the Supreme Court tie would only apply to the Hawkes decision, and other rulings would be unaffected.

    Alternatively, Bishop said the Supreme Court, instead of issuing a decision, could set the case for re-argument when nine justices are available.

    “When Justice O'Connor retired, the Court set three cases over for re-argument, and those cases were then decided after Justice [Samuel] Alito was confirmed. I think the court will try hard not to leave cases undecided because of deadlock, because of the significant effort, time and cost that has gone into litigation by that point,” Bishop said.

     

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25. Advocates Object to ‘Exceptional Events’ Air Rule Changes

    Feb 17, 2016 | BNA Daily Environment Report

    By Patrick Ambrosio

    The Environmental Protection Agency's proposal to delete a long-standing requirement in its “exceptional events” air pollution regulations is unlawful, environmental groups alleged in comments.

    The November proposal would make a number of changes to the agency's exceptional events policy to address state concerns with the current process, which allows for the exclusion of data influenced by wildfires and other uncontrollable pollution events from consideration in determining compliance with national air standards. States offered general support for the proposal in comments but did ask for the agency to establish a dispute-resolution process and make other changes to the exceptional events rule.

    The proposed rule (RIN 2060-AS02) is intended by the EPA to address concerns that the current process for obtaining an exceptional events designation is unpredictable and requires the commitment of too much money and staff. The agency's fall 2015 regulatory agenda projects a final rule will be issued by August.

    One of the most significant changes proposed by the EPA is a removal of the criterion that states must show that a regulatory violation wouldn't have occurred “but for” the event in question in order to receive an exceptional event designation. The agency's proposal acknowledged that states often have difficulty quantifying and distinguishing the air quality effects of a single pollution event from the effects of other pollution sources (219 DEN A-4, 11/13/15).

    Proposal Said to Violate CAA Language

    The Natural Resources Defense Council, Sierra Club and Comite Civico Del Valle Inc., in comments, urged the EPA to retain the “but for” language in order to continue to require states to show that there would not have been a violation of air standards without the event.

    The environmental groups alleged the proposal would violate section 319 of the Clean Air Act by ignoring the requirement that the air quality data being excluded is “directly due” to the event in question. The groups also argued that the EPA's proposal to combine two distinct elements of the statutory test for an exceptional event, the “affects air quality” and “clear causal relationship” elements, would violate the plain language of Section 319, which the groups said establishes those as separate requirements.

    “EPA's proposal violates the plain language of the Clean Air Act's section 319 exceptional event provisions in a number of ways, and is arbitrary and capricious,” the environmental groups said. “Relaxing statutory requirements for exceptional event demonstrations, as the agency has done here, is not only illegal, as detailed above, but it has a corrosive effect on national air quality standards. Were the contents of this proposal finalized, more Americans would potentially have both more exposure to dirty air, and even less transparency about how safe their air is to breathe.”

    States Seek Further Changes

    Various state environmental agencies and associations offered their support for many aspects of the EPA's proposal, while urging the agency to make additional revisions to the exceptional events process.

    One such change sought by many states, including members of the Western States Air Resources Council and the National Association of Clean Air Agencies, is the creation of some sort of dispute resolution process. NACAA, which represents 40 state air pollution control agencies, said there is not currently an adequate opportunity for states and localities to challenge the EPA's rejection of an exceptional event request or challenge the agency's failure to respond to a request in a timely manner.

    WESTAR, which represents 15 air quality management agencies in the western U.S., said the agency must establish an effective process for handling situations where states disagree with a decision by an EPA regional office. States should have the ability to either present their concerns to staff at EPA headquarters in Washington, D.C., or to a third party that could conduct an independent review of the regional office's decision, WESTAR said.

    New Mexico, Kansas and the San Joaquin Valley Air Pollution Control District, in individual comments on the proposal, objected to the EPA's proposal to allow federal land managers and other federal agencies to directly submit exceptional event requests to the EPA.

    New Mexico said in its comments that while the state would welcome collaboration with federal agencies, it would not be appropriate to give the federal agencies the authority to submit an exceptional events demonstration. The responsibility for air quality, including exceptional events requests, rightly rests with state air pollution control agencies, New Mexico said.

    State opposition to the proposed federal land manager provision wasn't universal, as the Michigan Department on Environmental Quality said in its comments that it would support giving federal agencies the ability to submit exceptional events demonstrations directly to the EPA. The state agency said allowing federal agencies to prepare those submittals would relive state agencies of additional work and allow for a more efficient submittal process. 

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