Preview Newsletter
PM ACC 2/17/2016
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(ACC Mentioned) ACC Launches Website for Chemistry in Building and Construction Materials
Feb 17, 2016 | Construction & Demolition Recycling
The American Chemistry Council (ACC), Washington, has launched a website dedicated to highlighting chemistry in building and construction materials. -
(ACC Mentioned) Plastic Bags Being Recycled Right in County
Feb 17, 2016 | The Columbian
By Amy Fischer
Last year’s pilot study aimed at raising awareness of proper recycling of plastic bags, wraps and films had positive results, according to the city of Vancouver. -
(ACC Mentioned) Washington State Flame Retardant Ban Clears Hurdle
Feb 17, 2016 | Chemical Watch
By Kelly Franklin
Washington state's House of Representatives has passed a bill that would ban five flame retardants from children's products and residential upholstered furniture sold in the state. -
State Leaders Request Preservation of Regulatory Authority Under TSCA
Feb 17, 2016 | Chemical Watch
Four organisations representing state elected leaders have called on Congress to maintain their rights to develop and implement chemical regulations under a reformed Toxic Substances Control Act (TSCA). -
Cosmetics Safety Bill Gains Support From Industry And Advocates
Feb 17, 2016 | Environmental Working Group
By Christine M. Hill
Cosmetics companies and health and consumer advocates are coming together to support the Personal Care Products Safety Act, which would strengthen federal regulations that have remained largely unchanged for more than 75 years. -
Power Sector Seeks to Share Hackers in Emergencies
Feb 17, 2016 | E&E Energywire
By Blake Sobczak
The U.S. electricity sector is drawing up plans to keep enough friendly hackers on hand in the event of a nationwide cyber emergency. -
Gas Storage Regulations Need 'Fresh Look' -- Moniz
Feb 17, 2016 | E&E Greenwire
By Hannah Hess
Speaking from the Chatsworth office of the Southern California Gas Co., a few miles from the site of a 16-week methane leak, Energy Secretary Ernest Moniz underscored concerns yesterday about aging energy infrastructure. -
Making Commuter and Freight Trains Safer
Feb 16, 2016 | Emergency Management
By Adam Stone
In September 2008 a Metrolink commuter train collided head-on with a Union Pacific freight train in Chatsworth, Calif., killing 25 people and injuring more than 100. -
Midwest States Chart Predictable Courses on Compliance Work
Feb 17, 2016 | E&E Climatewire
By Jeffrey Tomich
Michigan joined the list of Republican-led states in the coal-dependent Midwest that are putting the brakes on work to develop Clean Power Plan compliance strategies following last week's surprising stay... -
17 States Sign Clean Energy Pact, as Climate Looms in the Background
Feb 17, 2016 | E&E Energywire
By Debra Kahn
The announcement by 17 governors yesterday to jointly pursue clean energy goals was perhaps most noteworthy in what it did not include -- any mention of climate change. -
Why the U.S. is Cutting Carbon Emissions No Matter What Happens with the Supreme Court
Feb 17, 2016 | Washington Post
By Chris Mooney
Last week, the Supreme Court threw U.S. and international climate policy into turmoil by freezing President Obama’s Clean Power Plan while it is being challenged before the U.S. Court of Appeals for the D.C. Circuit. -
Calif. Air Chief Nichols Says State Poised to Stay on Track with Rule Timeline
Feb 17, 2016 | E&E TV
How are state air agencies proceeding with planning following last week's Supreme Court stay of the Clean Power Plan? During today's OnPoint, Mary Nichols, chairwoman of the California Air Resources Board, explains... -
Scalia's Death Scrambles Court Calculus for Major Water Cases
Feb 17, 2016 | PoliticoPro
By Annie Snider
The Supreme Court lost one of its most forceful critics of federal wetlands regulations with Justice Antonin Scalia's death, a loss that could shift the balance on how the court approaches some of the most significant water rules... -
Amid ESPS Uncertainty, Debate Heats Up Over Section 115 as Alternative
Feb 17, 2016 | InsideEPA
By Lee Logan
Debate is heating up over the viability of a climate policy centered on a little-used Clean Air Act provision governing international air pollution, an option that has gained prominence as recent developments at the Supreme Court... -
States Seek Equal Treatment for All Areas in 'Exceptional Events' Air Rule
Feb 17, 2016 | InsideEPA
By Stuart Parker
States are asking EPA to ensure that its pending rule revising its policy on when air pollution due to "exceptional events" such as wildfires can be discounted from emissions standards compliance measurements treats... -
Parts of 8 States Failing to Meet SO2 Standards -- EPA
Feb 17, 2016 | E&E Greenwire
By Sean Reilly
U.S. EPA is proposing to designate a dozen areas in eight states as failing to meet the primary ambient air quality standard for sulfur dioxide, a step that could require those states to develop plans... -
Calif. Gas Leak Seen as Llitigation Gusher Rivaling BP Spill
Feb 17, 2016 | E&E Greenwire
By Jeremy P. Jacobs
With the plugging of a monthslong methane leak at a natural gas well in Los Angeles last week, lawyers have turned their attention to litigation stemming from the environmental debacle. -
Methane Limits Take Shape in Pa.
Feb 17, 2016 | E&E Energywire
Pennsylvania environmental regulators are beginning the process of cracking down on methane emissions, starting with permits for new shale gas well sites and new compressor stations.
Industry and Association News
Chemical Management News
Chemical Security News
Transportation News
Energy and Environment News
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(ACC Mentioned) ACC Launches Website for Chemistry in Building and Construction Materials
Feb 17, 2016 | Construction & Demolition Recycling
The American Chemistry Council (ACC), Washington, has launched a website dedicated to highlighting chemistry in building and construction materials. The new site, www.BuildingWithChemistry.org, will provide architects, material specifiers, interior designers and other building and construction professionals with tools and information about green building codes and standards, materials selection and the role of chemistry in developing innovative, sustainable building materials, according to the ACC.
The website includes an interactive graphic of a mixed-use residential building that highlights how chemical ingredients are used in materials, from polycarbonate panels in skylights and plastics in piping, to nylon and polyester fibers in carpeting. A “Green Building” section provides an overview of commonly used standards, codes, certification systems and assessment tools, as well as examples of green building approaches by building type.
Recognizing chemistry provides unique properties to the materials used in every commercial, residential and mixed-use projects, the site includes a section that details some of the most common chemistries used in various applications, including roofing, insulation, walls, plumbing, flooring, door frames, windows, countertops and cabinets as well as fencing, decking and railing.
ACC says, at www.BuildingWithChemistry.org, “This website is intended to provide general information only about various chemistries, their uses and function; it does not and cannot provide safety information specific to any particular product or chemical, and it is not intended to be comprehensive or complete and should not be relied upon to ensure safe and appropriate use of any particular product or chemical.” -
(ACC Mentioned) Plastic Bags Being Recycled Right in County
Feb 17, 2016 | The Columbian
By Amy Fischer
Last year’s pilot study aimed at raising awareness of proper recycling of plastic bags, wraps and films had positive results, according to the city of Vancouver.
The “Recycle Right Beyond Bags” program goal is to keep those materials out of blue recycling carts because they clog the equipment at the regional West Van Materials Recovery Center, resulting in shutdowns while workers cut away the tangled plastic.
Under the program, which launched in September, all 12 Safeway stores in Clark County began accepting clean, dry plastic polyethylene wrappers and bags. The stores send the material to the Trex Company’s manufacturing facility in Nevada to be made into wood-alternative decking and lumber. It takes roughly 2,250 plastic bags to make a standard 16-foot composite lumber board, which also contains sawdust.
During the program’s six-week test study, the amount of plastic bags and wraps customers recycled at Safeway more than doubled from their August levels, according to Rich McConaghy, the city of Vancouver’s environmental resources manager.
The region will continue to work on expanding plastic bag and film collection at other stores, and organizers hope to address commercial plastic film as well, McConaghy said.
In addition to packaging film that encases items such as paper towels, polyethylene plastic is used to make disposable grocery bags, bread bags, dry cleaning bags, plastic envelopes and newspaper bags. Recycling polyethylene into other products consumes less energy than making new products from scratch.
75 percent decrease
The Beyond Bags program meshed with Clark County’s regional “Recycling Done Right” campaign regarding what should and shouldn’t go into blue recycling carts. The Recycling Done Right program showed a 75 percent decrease in plastic bags in the recycling carts of customers who had received informational notices.
The effort has spread to schools. Students at 12 Clark County schools certified in the Green School Program are collecting plastic film for delivery to retail stores this spring as part of the Trex Recycling Challenge, which Clark County is organizing locally.
The Beyond Bags program was a partnership of the city of Vancouver, Clark County, Waste Connections, the American Chemistry Council’s Flexible Film Recycling Group, Safeway and the Trex Company.
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(ACC Mentioned) Washington State Flame Retardant Ban Clears Hurdle
Feb 17, 2016 | Chemical Watch
By Kelly Franklin
Washington state's House of Representatives has passed a bill that would ban five flame retardants from children's products and residential upholstered furniture sold in the state.
The Toxic-Free Kids and Families Act (HB 2545) would implement a ban after 1 July 2017 on children's products or residential upholstered furniture containing more than 1,000ppm, in any product component, of:
TDCPP (tris(1,3-dichloro-2-propyl)phosphate);
TCEP (tris(2-chloroethyl)phosphate);
decaBDE (decabromodiphenyl ether);
HBCD (hexabromocyclododecane);
andadditive TBBPA (tetrabromobisphenol A).
HB 2545 also proposes a process by which the state's health department could implement rules to ban additional flame retardants in the future.
All five substances must be reported under the state's Children's Safe Product Act (CSPA). This is a mandatory reporting programme overseen by the state's Department of Ecology (DoE).
In 2014, Washington's legislature directed the DoE to investigate potential health concerns from the use of flame retardants in children's products and furniture. The agency's report – released in January 2015 recommended that eight flame retardants be banned in those applications, including the five substances in HB 2545.
Washington Toxics Coalition’s executive director Laurie Valeriano praised the bill's passage. She says it represents a step towards protecting children and firefighters from dangerous toxic flame retardants, and “relies on public health experts, not the chemical industry, to make decisions about the safety of certain flame retardant chemicals used in children’s products and furniture.”
But, according to a staff summary of a public hearing on the measure, opponents say that the US EPA'songoing risk assessment of flame retardant clusters should be completed before state-level action is taken.
They also say that the ban would transform the DoE's list of reportable substances to a list of banned substances, regardless of the risk their use presents. It would also endow “new and unprecedented authority” to the state's Department of Heath.
Several trade groups lobbied against the bill. These include the:
Toy Industry Association (TIA);
American Chemistry Council (ACC); and
Association of Washington Businesses.
The measure passed with a 76-21 vote. But, a similar bill cleared the House by an even larger margin last year, and then died in the Senate.
Minnesota passed a flame retardant ban last year. This banned TDCPP, TCEP, decaBDE and HBCD in children's products and residential upholstered furniture. It takes effect from 1 July 2018.
The District of Columbia is currently considering a ban on TDCPP and TCEP in nearly all consumer products, with a proposed phase-in date for residential furniture and children's products in 2018. The two substances' use in children's foam-padded sleep products has also been identified as a potential priorityunder California's Safer Consumer Products programme.
Washington's measure now moves to the Senate for consideration.
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State Leaders Request Preservation of Regulatory Authority Under TSCA
Feb 17, 2016 | Chemical Watch
Four organisations representing state elected leaders have called on Congress to maintain their rights to develop and implement chemical regulations under a reformed Toxic Substances Control Act (TSCA).
“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,” say the organisations, whose members include state governors and legislators.
The groups' call for preservation of states' regulatory authority echoes that made by a coalition of more than 100 advocacy groups earlier this month, as well as by 12 state attorneys general.
The state organisations say that their regulatory actions “augment” the EPA's efforts under TSCA: “Over the past 30 years states have played, and continue to play, an important role in regulation where federal action has been delayed or absent.”
They also offer their support to Congress's passage of “this important legislation as soon as possible”.
The letter was cosigned by the:National Governors Association;National Conference of State Legislatures;Environmental Council of the States (Ecos); andAssociation of State and Territorial Health Officials.
Congressional discussions to reconcile TSCA bills passed by the House and Senate have been under way since the beginning of the year.
Ecos recently published a side-by-side comparison of the House and Senate TSCA bills, highlighting several of the differences between their approaches to balancing state and federal powers.
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Cosmetics Safety Bill Gains Support From Industry And Advocates
Feb 17, 2016 | Environmental Working Group
By Christine M. Hill
Cosmetics companies and health and consumer advocates are coming together to support the Personal Care Products Safety Act, which would strengthen federal regulations that have remained largely unchanged for more than 75 years.
Cosmetics are a $60 billion-a-year business, and no other products are so widely used by American consumers with such few safeguards. The bipartisan bill, introduced by Sens. Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine), would require companies to ensure products are safe before placing them on the market and give the Food and Drug Administration the tools it needs to protect the public.
Through years of discussion and negotiation, the bill has gained the support of major cosmetic companies such as Johnson & Johnson and Procter & Gamble, as well as influential health and consumer organizations such as the American Cancer Society Cancer Action Network, the Endocrine Society and the March of Dimes. (See the complete list of supporters below.)
The legislation would give the FDA the same tools for ensuring the safety of personal care products as it now uses to regulate food and drugs. Each year, the agency would do a safety review of five ingredients and contaminants. Companies also would be required to register their manufacturing facilities and disclose the ingredients they use to the FDA.
The bill would require cosmetics companies to report adverse health incidents and give FDA authority to recall dangerous products. It also would require specific labeling and warnings for products with ingredients that could pose problems for some consumers. The regulatory program would be funded by user fees from companies, totalling about $20 million a year.
Since June 2015, more than 75,000 EWG supporters have signed petitions or emailed Congress in support of safer cosmetics. Consumers deserve to know the products they use every day are safe.
If you haven’t done so already, please take a minute now to contact your senatorsand urge them to add their names to this critical piece of legislation. It's fast, easy and will help us all have safer products.
Health and Consumer Organizations (as of Jan. 27)
American Association of Clinical Endocrinologists
American Autoimmune Related Diseases Association
American Cancer Society Cancer Action Network
Blue Ribbon Advocacy Alliance
Caregiver Action Network
Endocrine Society
Environmental Working Group
Gerontological Society of America
Healthy Women March of Dimes
National Alliance for Hispanic Health
National Association of Nutrition and Aging Services Programs
National Coalition for LGBT Health
National Minority Quality Forum
National Partnership for Women & Families
National Psoriasis Foundation
National Women’s Health Network
New Voices Pittsburgh
Society for Women’s Health Research
Veterans Health Council
Women Against Prostate Cancer
Supporting Cosmetic Companies:*
Personal Care Products Council, representing more than 600 companies in the cosmetics industry.California Baby
Estee Lauder. Brands include Estée Lauder, Clinique, Origins, Tommy Hilfiger, MAC, La Mer, Bobbi Brown, Donna Karan, Aveda, Michael Kors.
Herban Lifestyle
Johnson & Johnson. Brands include Neutrogena, Aveeno, Clean & Clear, Lubriderm, Johnson’s baby products.
L’Oreal. Brands include L’Oréal Paris, Lancome, Giorgio Armani, Yves Saint Laurent, Kiehl’s, Essie, Garnier, Maybelline-New York, Vichy, La Roche-Posay, The Body Shop, Redken.
Madison Reed
Procter & Gamble. Brands include Pantene, Head & Shoulders, Herbal Essences, Secret, Ivory, CoverGirl, Olay, Crest, Gillette, Old Spice, Safeguard.
Revlon. Brands include Revlon, Almay, Mitchum.Unilever. Brands include Dove, Tresemme, Lever, St. Ives, Noxzema, Nexxus, Pond’s, Suave, Sunsilk, Vaseline, Degree.
* Brands listed are just a sample from supporting companies. This list does not include all brands made by the company.
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Power Sector Seeks to Share Hackers in Emergencies
Feb 17, 2016 | E&E Energywire
By Blake Sobczak
The U.S. electricity sector is drawing up plans to keep enough friendly hackers on hand in the event of a nationwide cyber emergency.
A "cyber mutual assistance program" is still in the early stages of development, industry officials say, although the idea has gained traction with a few dozen utilities of varying sizes.
Most large power companies have in-house cybersecurity departments capable of fending off day-to-day threats.
But a coordinated cyberattack that knocked out power to swaths of the United States could overwhelm individual utilities' cybersecurity teams, similar to how crippling storms leave shortages of line workers in their wake.
"We have storm mutual assistance where we can bring linemen from all over the country to bear in the event of a hurricane situation that can't be handled on a regional basis -- but do we have that surge capability on the cyber side?" said Jim Fama, vice president for energy delivery at the Edison Electric Institute, which represents investor-owned utilities. "I think the short answer is: This is an area where we need some big improvement."
The Electricity Sub-sector Coordinating Council, a group of industry leaders that meets regularly with federal officials, has hosted initial talks on the subject, Fama said.
Utilities and state and federal partners would need to sort through a variety of thorny issues before launching such a program. For starters, they would have to find a trigger -- how bad would a cyber event have to be before utilities could ask their peers for help under the program? How could utilities make a business case for participating, given that cyberattacks on critical infrastructure, while potentially impactful, are extremely rare?
Devastating storms are much more common, but as Fama pointed out, cybersecurity mutual assistance isn't the same thing as offering a hand after severe weather.
"In a storm situation, you watch the path of the storm and you hold your resources. But once you feel safe, you release your resources to help out other utilities," Fama said. For cyber, "are you willing to let your company send cyber mutual assistance folks to go help another company, when you're worried about what you can be hit with next?"
State officials are expected to puzzle over these questions during a daylong exercise today at the National Association of Regulatory Utility Commissioners' winter meeting in Washington, D.C. The moderator will lead regulators through a scenario in which multiple utilities get infected with malware in a sophisticated attack. On the agenda: "how to figure out if you have the right resources to address the problem, and whether or not cybersecurity mutual assistance could help."
If the cyber mutual assistance program gains steam, utility commissioners will have to decide whether they are willing to allow regulated companies to dispatch their computer experts out of state in an emergency.
Fama drew parallels to the industry's Spare Transformer Equipment Program (STEP), in which bulky, hard-to-replace power transformers can be shuffled around the country if the president declares a national emergency.
"Many companies had to go to state commissions for approvals for them to be able to implement their commitment" under STEP, Fama said.
He said despite high turnout at the first discussion of cyber assistance, the industry has yet to reach the "critical mass" needed for the program to be a certainty.
"It's difficult on the cyber side, but we know generally how to do it," Fama said. "We just have to get to it."
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Gas Storage Regulations Need 'Fresh Look' -- Moniz
Feb 17, 2016 | E&E Greenwire
By Hannah Hess
Speaking from the Chatsworth office of the Southern California Gas Co., a few miles from the site of a 16-week methane leak, Energy Secretary Ernest Moniz underscored concerns yesterday about aging energy infrastructure.
"We have a lot of very old infrastructure in energy that we have to address for the 21st century," Moniz told reporters, after touring the Aliso Canyon underground storage facility. Crews there have started the process of permanently sealing the leaking well.
Moniz met with gas officials during a closed-door meeting and told reporters afterward that monitoring does not suggest any further leaks. The California Division of Oil, Gas and Geothermal Resources will continue a series of tests to confirm that the well is permanently sealed. Moniz said the tests could last through today.
"Frankly, gas storage fields need a fresh look in terms of some of the regulatory requirements," Moniz said. "That was clearly brought home."
Rep. Brad Sherman (D-Calif.), who lives near the site of the gas leak in Los Angeles' Porter Ranch community, has gone further, accusing regulators of negligence. He said the leak has displaced more than 6,400 families.
"What we need is nationwide natural gas safety storage standards," Sherman yesterday told local news. "We don't have them. The federal government punted to the states, and the state regulation is very weak."
Sherman has introduced H.R. 4578, the "Underground Gas Storage Safety Act," which would require the Department of Transportation's Pipeline Hazardous Materials Safety Administration to implement safety standards for natural gas storage facilities.
The problem at Aliso Canyon is also a lack of oversight of the oil and gas industry, according to the Environmental Defense Fund, which estimates at least 96,000 metric tons of methane escaped. The group does not trust industry to fix the problem on its own. Methane leaks can also go unnoticed indefinitely, since the gas is colorless and odorless.
"This is partly why methane leaks across the oil and gas supply chain have gone unaddressed for so long -- because, unlike an oil spill, it's not immediately apparent to the general public that something's amiss," said Mark Brownstein, vice president of EDF's climate and energy program.
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Making Commuter and Freight Trains Safer
Feb 16, 2016 | Emergency Management
By Adam Stone
In September 2008 a Metrolink commuter train collided head-on with a Union Pacific freight train in Chatsworth, Calif., killing 25 people and injuring more than 100. On Dec. 1, 2013, a Metro-North commuter train derailed in the Bronx, killing four and injuring dozens of others. The train’s engineer had fallen asleep and failed to slow the train from over 82 mph to the maximum authorized 30 mph as it entered a curve.
These and many other incidents could have been avoided, according to the National Transportation Safety Board, if railroads had implemented positive train control (PTC). They were supposed to do just that by the end of 2015. They missed the deadline, but got a reprieve, with Congress pushing back the deadline for PTC implementation to 2018.
Congress first mandated PTC in 2008 for rail lines used to transport passengers or toxic-by-inhalation materials. The unfunded mandate gave railroads seven years to comply. Questions arise: Why push back implementation to 2018? Why the delay? Will PTC actually help, whenever we get there? And what will it mean to emergency managers?Steep Hill to Climb
PTC is meant to kick in when human error threatens safety. These systems use a combination of GPS satellite, state-of-the-art signaling and advanced databases in order to determine the exact location, direction and speed of trains. The system warns the operator of possible trouble and takes action to stop the train if there is no response.
Suppose a train is moving full speed toward a signal or into a speed-restricted area. If the operator doesn’t take action, PTC will put on the brakes.
This is no small feat, according to the Association of American Railroads (AAR). A full deployment would include, “a complete physical survey and highly precise geo-mapping of the more than 82,000 track-miles … on which PTC technology will be installed, including geo-mapping of nearly 460,000 field assets (mileposts, curves, grade crossings, switches, signals and much more) along that right-of-way,” AAR reports.
Complex, yes, but we know how it works. So why isn’t it done? Well, it may not be quite that simple.
Despite understanding the basic technology, “railroads still have had to hire thousands of software developers and safety experts,” said AAR spokesman Ed Greenberg. Mostly this development has gone toward ensuring PTC can deliver on its safety expectations. Despite advances, various elements of PTC still show a 30 to 40 percent error rate. “We are talking about unprecedented technology. PTC is a complex system of systems and not off-the-shelf technology. It has had to be developed from scratch.”
In addition, the industry wants to reassure itself that the more than 70 railroads on the system will be able to exchange information. Without the free flow of data between rail lines, it’s unlikely PTC would have enough information to carry out its duties. “Interoperability is the key here,” Greenberg said.
A range of hurdles continues to stymie full implementation, according to a report to the House and Senate Appropriations Committees by the Federal Railroad Administration (FRA).
Wireless Spectrum Availability: Individual railroads are having trouble acquiring the needed spectrum for the radio signal that connects elements of PTC. In some cases, holders of spectrum won’t sell. In other cases the railroads find the conditions of a spectrum sale “neither fair nor reasonable.” Other spectrums are tied up in legal situations.
Hard-to-access equipment: “The number of suppliers who currently manufacture PTC system components is limited,” FRA notes. Only a handful of companies can make the needed components, which in turn slows deployment.
Safety Plans: As of August, FRA has received just three of 38 required PTC safety plans despite being in “constant and consistent contact with railroads to assist on safety plans and offer guidance.”Some Success
Despite hurdles, freight carriers have made headway. By the end of 2015 more than 14 percent of 60,000 miles of track were PTC equipped, AAR reports, along with 31 percent of 22,000 locomotives. Freight rail has spent more than $6 billion on these systems.
Overall, PTC has seen “some successful, but limited, deployment,” according to the FRA. As of August 2015, Amtrak had covered 60 route miles between Chicago and Detroit with its own variant of PTC, as well as in parts of the Northeast corridor, while BNSF Railway Co. has deployed systems on “a limited number of pilot territories.”
Amid all the competing pressures and declarations of progress, one thing emerges clearly: PTC will be late. Knowing they weren’t going to make the 2015 deadline, the railroads petitioned Congress and successfully got the due date pushed back to 2018, while pledging that the extension wouldn’t slow their efforts. “[T]his does not change our approach toward working aggressively to implement PTC as quickly as we possibly can and ensuring it can reliably deliver the safety features we all desire,” BNSF Executive Vice President and Chief Marketing Officer Steve Bobb said when the extension was passed.
When full-blown PTC finally is declared, all involved agree the rails will be safer. By some estimates, human error accounts for 40 percent of rail accidents. To the extent that PTC can remove human error from the equation — and that is exactly what it is designed to do — emergency management should see its load lightened.Managing Emergencies
Fewer derailments, especially of trains carrying hazardous materials, will no doubt benefit emergency managers, not least financially. The cost of a derailment can be staggering when one includes lawyers, damages, repairs and so on. The hit to the emergency community’s budget is no less significant. Take for example a 2014 incident in downtown Lynchburg, Va., in which several CSX tanker cars carrying crude oil derailed and caught fire along the James River. The event cost roughly $8.99 million in emergency response and cleanup, according to the nonprofit research firm Sightline Institute.
While PTC won’t eliminate all train accidents, it is one piece of the puzzle that will vastly improve safety under specific circumstances, said FRA spokesman Michael Booth. By overriding driver error, at the very least PTC will help keep trains out of work zones and prevent derailments caused by speeding.
Knowing PTC alone won’t prevent all accidents, the FRA encourages emergency response agencies to make use of the U.S. Department of Transportation’s (DOT) Transportation Technology Center in Pueblo, Colo. The center is managed by the AAR, and has trained more than 60,000 first responders since 1985, Booth said.
The DOT has taken additional steps in recent months to help equip the emergency community to deal with rail accidents. In September the agency announced $5.9 million in first responder grants to help protect communities from flammable liquid spills caused by rail accidents. Managed by the Pipeline and Hazardous Materials Safety Administration, the money has been earmarked for three nonprofit organizations: University of Findlay (All Hazards Training Center), Findlay, OhioInternational Association of Fire Chiefs, Fairfax, Va. Center for Rural Development, Somerset, Ky.“Safety is our top priority, and [these] grants will help first responders, especially volunteer firefighters in rural or remote parts of the country, prepare for and respond to incidents involving flammable liquids,” DOT Secretary Anthony Foxx said in announcing the grants.
The emphasis on flammable liquids comes at least partly in response to the massive outflow of oil (up 4,000 percent in the past five years) from the Bakken oil fields, which underlie parts of Montana, North Dakota, Saskatchewan and Manitoba. A 2013 rail disaster involved the derailment of a 77-tank-car train carrying Bakken oil. The train exploded, killing 47 people and destroying 30 buildings.
Would PTC have prevented the disaster? The Transportation Safety Board of Canada found at least 18 probable causes, and its 12-page report never uses the phrase “human error.” Still, it does cite ineffective training and a failure to manage risks as concerns. Such factors could ultimately trigger a PTC response, under the right circumstances.
Rail lines, under various regulations, must notify emergency response authorities whenever hazardous materials are on the move. This may help emergency managers be prepared — but prevention would be even better than preparation, and PTC’s ability to prevent incidents, especially HAZMAT incidents, will come as welcome news to emergency managers … sometime down the line. -
Midwest States Chart Predictable Courses on Compliance Work
Feb 17, 2016 | E&E Climatewire
By Jeffrey Tomich
Michigan joined the list of Republican-led states in the coal-dependent Midwest that are putting the brakes on work to develop Clean Power Plan compliance strategies following last week's surprising stay issued by the U.S. Supreme Court.
Yesterday's decision by Michigan Gov. Rick Snyder (R) comes a day after Gov. Scott Walker (R) issued an executive order prohibiting Wisconsin agencies from working on the carbon rule (EnergyWire, Feb. 16). The Kansas Legislature is also moving quickly on a bill that would likewise suspend efforts on the Clean Power Plan. And similar legislation has been filed in neighboring Missouri.
Not surprisingly, decisions on whether and how to proceed are consistent with previously expressed views on the Obama administration's landmark policy to combat climate change. In states across the region, the Clean Power Plan would require cuts of 37 to 44 percent in carbon emissions over the next 15 years compared with 2012 levels.
Meanwhile, utilities and environmental groups generally agree that the court stay will have little practical effect, at least in the near term, as the shift away from coal will continue.
"The states that have been serious about moving forward are moving forward," said Howard Learner, executive director of Chicago-based Environmental Law & Policy Center, which works across the Midwest. "Other states that are ideologically opposed to the Clean Power Plan and have been dragging their heels have found an excuse."
While some Republican-led states in the Midwest, like Wisconsin, pushed back or showed little progress, Snyder made clear within a month after the final carbon rule was issued that Michigan would comply to avoid being forced to accept a federal plan. Snyder's decision came despite the Michigan attorney general being among those who sued EPA (Greenwire, Sep. 2, 2015).
The Michigan Agency for Energy in December announced initial Clean Power Plan modeling results showing the state could meet initial carbon reduction goals through the mid-2020s just by carrying out existing policies (EnergyWire, Dec. 23, 2015). A public "stakeholder engagement" process kicked off just a week before last Wednesday's Supreme Court decision.
The decision to halt work comes despite the urging of environmental advocates.
"Michigan should continue crafting a plan that will save money, improve public health and protect our natural resources from the worst impacts of climate change," said James Clift, policy director for the Michigan Environmental Council.
Kan. bill moves quickly
In Kansas, also among the states suing EPA, the state Senate wasted little time after the Supreme Court's stay to pass a bill that would halt work.
A measure blocking further work on the carbon rule was introduced as an amendment to an existing bill a day after the Supreme Court decision. The legislation, which would also abolish the Kansas Electric Transmission Authority, passed the Senate 37-2 and goes to the House.
The author of the amendment, state Sen. Rob Olson (R), and the head of the House Energy Committee, state Rep. Dennis Hedke (R), also lead the state's joint Clean Power Plan Implementation Study Committee. Both lawmakers, who have said they don't believe that humans are causing climate change, sent letters to the Kansas Corporation Commission (KCC) and Gov. Sam Brownback (R) on Thursday asking the KCC to halt efforts to hire a consultant to model Clean Power Plan scenarios.
The legislative committee was created by a bill signed last year by Brownback, another Clean Power Plan critic. The measure was guiding the state's efforts to develop a compliance plan, which required the Kansas Department of Health & Environment (KDHE) to work with utility regulators.
The KCC had hosted educational sessions on the rule and was in the process of conducting a formal investigation on the carbon rule to evaluate its impact on consumers and electric reliability (EnergyWire, Dec. 4, 2015).
The KDHE scheduled a series of three listening sessions to be held across the state beginning Feb. 25. But a note on the department's website indicated that the meetings were canceled.
Meanwhile, the Kansas House Energy and Environment Committee will hold a hearing this morning on the legislation to stop work on the Clean Power Plan.
Dorothy Barnett, executive director of the Hutchinson, Kan.-based Climate and Energy Project, is among those who will testify against stopping work on developing compliance plan. Doing so would stall efforts to improve energy efficiency policies and is shortsighted, she said.
"We think that's risky," Barnett said. "They're putting all of their eggs in the basket of there aren't going to be carbon regulations."
Katharine McCormick, a policy advocate for the Natural Resources Defense Council, sees actions by Wisconsin and other states that are stopping work as largely symbolic. But, she said, states such as Missouri, where legislators are trying to stop the process, could fall further behind other states in the region in developing clean energy.
Some states keep up work
Not all states in the Midwest are stopping work on the Clean Power Plan. The Iowa Department of Natural Resources will hold a stakeholder meeting Monday. Part of what will be discussed is what approach the state will take.
And in Minnesota, officials including Gov. Mark Dayton (D) have vowed to move forward under the belief that some form of the climate regulation will ultimately emerge (EnergyWire, Feb. 16).
For all of the spin and political jockeying in recent days, even utilities that support halting work on implementation plans say the court's action will have little if any effect on plans to retire older, inefficient coal-fired power plants and replace them with cleaner natural gas, renewable energy and energy efficiency.
Jackson, Mich.-based Consumers Energy, for instance, said it supports the governor's decision to halt work. But the company, which plans to shut down a third of its coal fleet, vowed to "continue moving forward with its transition to a cleaner energy portfolio," the company said in a statement.
The CEO of Detroit-based DTE Energy Co. made similar comments to analysts and investors last week, saying the court action wouldn't have much impact until the late-2020s, when the company might face the potential of newer, larger coal plants.
Gina Penzig, a spokeswoman for Topeka, Kan.-based Westar Energy Inc., Kansas' largest investor-owned utility, said the company likewise backs legislation to stop work on a compliance plan as long as it doesn't also stop the state's efforts to litigate the rule. Meanwhile, the company continues to add more wind generation to its portfolio and will have more than 1,700 megawatts by early 2017.
For now, utilities and clean energy advocates agree that it's economics more than policy that's influencing investment decisions.
"If you have declining electricity sales and you have natural gas prices, as of this moment, of $1.90, coal does not compete very well," said the Environmental Law & Policy Center's Learner. "That's what's affecting power plant owners' decisions today."
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17 States Sign Clean Energy Pact, as Climate Looms in the Background
Feb 17, 2016 | E&E Energywire
By Debra Kahn
The announcement by 17 governors yesterday to jointly pursue clean energy goals was perhaps most noteworthy in what it did not include -- any mention of climate change.
That omission was necessary to bring a bipartisan swath of states together on energy efficiency and renewable energy, modernizing the electricity grid and promoting electric and alternatively fueled vehicles -- all subjects often mentioned in the same breath as climate change.
"That really wasn't a topic of conversation," Nevada Gov. Brian Sandoval (R) said yesterday in a call with reporters, noting that next week's National Governors Association meeting might provide an opportunity to discuss climate issues.
Instead, the "Governors' Accord for a New Energy Future" makes an economic case for expanding cooperation between states on renewable energy. The document cites "extreme weather events," including sea-level rise, droughts, floods and wildfires, that can affect electric reliability and the economy, but it does not explicitly mention global warming.
That didn't stop some environmentalists from holding up the agreement as an example of progress on climate, especially in the wake of last week's Supreme Court ruling that put a hold on U.S. EPA's Clean Power Plan for greenhouse gas emissions from power plants.
"While the court may have temporarily blocked the Clean Power Plan, it can't block progress toward wind and solar energy, affordable electric vehicles, and a more modern and efficient electric grid," said Rob Sargent, senior director of Environment America's clean energy program. "Kudos to these governors for pledging to forge a path forward for climate progress and clean air."
Other observers said that while it might have been politically advantageous to leave climate out of the conversation, the agreement will still help reduce greenhouse gas emissions.
"It's acceptable for some of these governors to talk about the impacts of climate change, like extreme weather and sea-level rise, as long as they don't talk about the greenhouse gases that cause those effects," said Bill Magavern, policy director for the Coalition for Clean Air. "The fact is that making a transition to clean energy is the most important way to mitigate climate change, so I don't really care that much what they call it.
"No 'angst' about labels
Some of the signatories have recently opposed not only action on climate but also clean energy policies. Michigan Gov. Rick Snyder (R) was among the 24 who filed suit against the Clean Power Plan last year, while Sandoval's Public Utilities Commission late last year slashed the rates that rooftop solar panel owners receive for power sent back to the grid, causing an exodus of rooftop solar companies (ClimateWire, Jan. 27).
Snyder highlighted the agreement's potential to reduce energy costs and increase reliability, while Sandoval cited the possibility of exporting even more renewable energy from Nevada to neighboring states. The state currently exports a third of its renewables and is slated to increase renewable generation from 18 percent of its current mix to 25 percent by 2025.
Others issued statements making explicit the link between energy generation and greenhouse gas emissions. Seven of the governors mentioned climate change in their statements, including Connecticut Gov. Dannel Malloy (D), Rhode Island Gov. Gina Raimondo (D) and Vermont Gov. Peter Shumlin (D).
California Gov. Jerry Brown (D), usually one of the most full-throated advocates of action on climate, did not mention it in his statement.
"There's a very sharp cleavage in the United States on this issue of climate change, and it has a lot of partisan coloration," he explained to reporters. "We want to move forward. We want to get done important stuff without getting bogged down in the larger controversy."
Another observer agreed that the pact would affect emissions even without a focus on climate.
"The impacts of the existing energy structure are what they are, so I don't have any particular angst about the nomenclature," said Bob Perciasepe, president of the Center for Climate and Energy Solutions and a former deputy administrator of U.S. EPA.
Perciasepe compared the agreement to attempts to address childhood obesity through diet and exercise, each of which has a separate but overlapping set of benefits. "If one group is all about exercise and the other is about food, they may not ever mention the other one, but they're both going to accomplish the goals," he said.
The rest of the 17 signatories are: Massachusetts Gov. Charlie Baker (R), Iowa Gov. Terry Branstad (R), Delaware Gov. Jack Markell (D), Hawaii Gov. David Ige (D), Minnesota Gov. Mark Dayton (D), New Hampshire Gov. Maggie Hassan (D), New York Gov. Andrew Cuomo (D), Oregon Gov. Kate Brown (D), Pennsylvania Gov. Tom Wolf (D) and Virginia Gov. Terry McAuliffe (D).
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Why the U.S. is Cutting Carbon Emissions No Matter What Happens with the Supreme Court
Feb 17, 2016 | Washington Post
By Chris Mooney
Last week, the Supreme Court threw U.S. and international climate policy into turmoil by freezing President Obama’s Clean Power Plan while it is being challenged before the U.S. Court of Appeals for the D.C. Circuit. But matters took a turn over the weekend with the death of Justice Antonin Scalia, whose absence from the high court could mean that the plan will ultimately survive.
“If Scalia’s seat remains vacant when the Clean Power Plan reaches the high court, a 4-4 vote would result in an automatic affirmance of the D.C. Circuit’s decision on the rule,” says Jack Lienke, an attorney with the Institute for Policy Integrity at the New York University School of Law, by email. “We can’t know what the D.C. Circuit will decide, but supporters of the Clean Power Plan are optimistic — both because the D.C. Circuit panel, unlike the Supreme Court, denied motions to stay the rule and because the three-judge panel includes two Democratic appointees.”
So last week the Clean Power Plan seemed to be severely threatened – but now, not as much.
Despite this roller-coaster, though, one thing has not changed — the power sector in the U.S. is transforming in a way that will make the generation of electricity much less carbon-intensive in the future, the precise thing that the plan aims to achieve anyway. This is not a legal development, and not really a political one either. It is, in substantial part, a business decision.
Two recent sets of new data underscore this reality. The first, recently highlighted by the American Wind Energy Association, involves where the U.S. is adding new electricity generating capacity. In 2015, AWEA’s and otherrecent data suggest, wind led the way with 8.6 gigawatts (or billion watts) of new added capacity. Solar photovoltaics added 7.3 gigawatts (much of that on individual rooftops) and, in third place, came natural gas with 6 gigawatts.
The wind industry says another 9.4 gigawatts, meanwhile, are currently under construction, and 4.9 gigawatts on top of that are “in advanced stages of development.” Thus, the two biggest growth sectors for U.S. power are both renewable. Coal, by contrast, saw 14 gigawatts of plant retirements in 2015.
Similarly, the U.S. Energy Information Industry expects renewable energy to grow 9 percent in the U.S. in 2016, and to make up two thirds of added capacity (not unlike in 2015).
And this is just one of many, many indicators of a change underway in the U.S. power sector. Consider another: What leaders of the U.S. utility industry themselves think about the future.
The website Utility Dive has just published a survey of over 500 utility industry executives, from companies large and small, conducted in late 2015 and early 2016. 61 percent of respondents came from investor owned utilities, followed by 15 percent municipal utilities, 14 percent from electric cooperatives, and 10 percent public power companies. The companies were of all sizes, but 23 percent of those surveyed had customer bases of over 4 million people.
And the headline finding? “Nearly every” respondent felt that it was time for his or her company’s business model to change. And no wonder — the power industry is being upended by an insurgency of Nest thermostats, rooftop solar installations, customers who want home batteries and car chargers and much more.
Power companies are struggling to keep up with all of this — and the result of many, if not most, of these changes is that the utility industry is likely going to be less carbon intensive in the future, in part because you and I are going to both waste less energy and also get more out of the energy that we do use.
In particular, the survey shows, utility companies are wary of falling behind in a distributed energy world in which customers need them less because they can generate (with solar) and perhaps store (with batteries) much or even all of their own power. So companies want to become providers of these kinds of services, and so retain these customers.
Sure enough, when it comes to finding new sources of income and new businesses, “the most popular emerging revenue opportunities among respondents are energy management and efficiency services, community solar, and electric vehicle charging infrastructure, while green pricing programs and rooftop solar offerings were also popular,” the Utility Dive survey finds.
Oh, and then there’s how power will be generated at these sometimes massive companies in the future. The Utility Dive survey finds (and again, this is worth quoting in full):
Respondents believe utility-scale renewables, distributed generation and natural gas will increase in their utility’s power mix, while coal and oil will decline and nuclear will remain stagnant. Utilities expect stronger growth for large-scale solar and distributed generation than they do for wind or gas.
The number one thing that utility executives said their company should invest in more was energy storage, at 65 percent, followed by distributed generation, at 52 percent. Energy storage, at the grid scale, is a key technology that will allow for, among other things, more integration of renewable resources onto the grid.
In another notable statistic, meanwhile, when asked in what areas their companies’ power mixes would “significantly decrease” in the coming 20 years, 54 percent said coal, far more than for any other electricity source. No wonder that 41 percent of executive surveyed wanted the Clean Power Plan maintained as it is, while 29 percent thought it should bestrengthened. It’s hard from such numbers to argue that the plan is strongly opposed by power companies.
It’s important to emphasize that these results are coming from leaders of an industry that is hardly known for risk-taking. Utilities have been, traditionally, heavily regulated incumbents who are slow to change.
But they’re also headed by leaders who can sense what’s happening out there and who would be foolish to ignore it. Which is why no matter what happens with the Clean Power Plan, all signs suggest our country will be using less coal — and a lot more wind and solar — in the future.
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Calif. Air Chief Nichols Says State Poised to Stay on Track with Rule Timeline
Feb 17, 2016 | E&E TV
How are state air agencies proceeding with planning following last week's Supreme Court stay of the Clean Power Plan? During today's OnPoint, Mary Nichols, chairwoman of the California Air Resources Board, explains how her state plans to not only stay the course with its compliance planning, but also stay on the timeline prescribed by U.S. EPA in its rule. Nichols also discusses California's plans to work with other states on compliance.
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Mary Nichols, chair of the California Air Resources Board and a distinguished visiting professor at Georgetown University Law. Chairwoman Nichols, thank you for joining me again.
Mary Nichols: It's a pleasure.
Monica Trauzzi: Chairwoman, as the dust settles from the Supreme Court's surprising decision to stay the Clean Power Plan pending litigation, what conversations are you having with other state air agencies about next steps?
Mary Nichols: Well, first of all, of course, we're part of a larger group of states that are all actively moving forward on our own with ways of pricing carbon and limiting emissions from our electricity sector. So, between ourselves and the RGGI states and others who have indicated desire to move with us. We have a large group and we are all in a position where we will continue developing our plans regardless of the stay decision that just came down from the Supreme Court.
Obviously, we were surprised and disappointed -- as were many other people -- by the decision, but as we look at where we are and what we need to do, first of all, we still believe very strongly that EPA will prevail, that the Clean Power Plan will be upheld at the end of the day, so it would be foolish to slack off in our efforts to develop approvable plans right now. But even if we were not so convinced, as we are, I think we feel that the work that we're doing now on reducing emissions and bringing our electricity systems into the 21st century and beyond our investments in renewable energy and in efficiency are things that we would be doing for climate purposes and for economic purposes as well.
Monica Trauzzi: So then California will continue to move forward with the power plan itself or simply the path that your state is already on in terms of clean energy and emissions reduction?
Mary Nichols: Well, we were already planning to submit our cap and trade program as our demonstration of compliance with the Clean Power Plan. There were other elements that we would have to -- and still do have to -- complete in order to be fully approvable under the final EPA regulation. So it's not just a matter of sending something that's already been printed up and saying, "Here it is," but we were well on the path to doing that. And one of our objectives was to get our plan in on time, if not early, as a way of showing other states that this is something that could be done and further inviting them to join with us in this effort, and so that effort will continue regardless.
Monica Trauzzi: And you'll try to stay on that timeline that was established by EPA?
Mary Nichols: Well, there's no reason for us to delay. The timeline is certainly -- to the first milestone, the initial submittal, is challenging for any bureaucracy, including mine, but we think we can do it, and we want to act on that assumption because it's part of our larger effort to work with other states and other regions of the world that are looking to California to demonstrate leadership on these issues.
Monica Trauzzi: And how many states do you believe will follow suit and follow the power plan prescription?
Mary Nichols: Well, the original coalition of states that intervened in the litigation in behalf of EPA have pretty much all indicated their plan to stay on this path. There are several other states that we're talking to who I'm not at liberty to quote as having said that they're going to hedge their bets by continuing the work that they're doing, even in cases where they actually are on the side of opposition. Even when they're opposing the plan, they're still making a prudent bet that the Clean Power Plan will be upheld.
Monica Trauzzi: But many states will opt to stop work on the power plan. Ultimately, will that create an even more fragmented patchwork of action versus inaction in the U.S.?
Mary Nichols: Well, we already knew that there were a number of states that were going to do everything they could to delay, and they -- states will continue to delay, so I'm not sure that this adds anything other than more of an argument on their side as to why they're doing it, but at the end of the day, my experience with EPA and large national rulemakings is that there's always litigation, there's always some delay, there's always a period of regrouping, and maybe it works, to some degree, to the benefit of those who were laggards, but in general, I think it works more to the benefit of those states that decide to be leaders in this area because they've already got the experience and they've got the ability to send messages to industries that might be looking at investment, that this is a place that has its act together.
Monica Trauzzi: And utilities continue to want certainty. Do you think that naturally evolving business models towards cleaner energy, towards more cost-effective forms of energy that are ultimately cleaner, do you think that that will ultimately drive the U.S. in the direction that the Clean Power Plan was going in, but just perhaps at a slower pace?
Mary Nichols: Yeah, I would probably say it in the opposite way, which is that the Clean Power Plan was assisting a movement that was already underway by the time the plan came out. So the question is: "Why does it matter?" Well, it still matters both from a backstop perspective as a way of pushing along those states that were not going to move until they absolutely had to -- unfortunately, they do require rules -- and I think from the perspective of industry -- and the utility industry said this: They would like a level playing field.
So the rule is still very important to us. The plan is important to us. It's clearly a basis for the entire country being able to assert its ability to comply with the Paris agreement. It's something that the administration has put a tremendous amount of effort, and I think, has some of the most sophisticated technical work in it that has ever been done at EPA. It's really an impressive program, and so it deserves to be honored and to be complied with, but the reality is, as you say, that for most of the utilities in states that are growing or that are looking towards their own futures, this is part of a path that they already knew that they were on, and so, at worst, the decision is adding an extra element of confusion and encouragement to those who are going to drag their feet every step of the way.
Monica Trauzzi: What are the impacts of the stay decision on the president's climate legacy?
Mary Nichols: I think the president's climate legacy will stand. I think it will be upheld. I think not only will it be validated as, I think, almost every major Clean Air Act decision has been in recent year after a period of uncertainty and questioning of whether it could possibly really mean what it says. It's the Clean Air Act that we come back to time after time, so this president used that act; he used it in a courageous and constructive way, but he's not the first person to recognize, as the Supreme Court itself has told us, that greenhouse gases are a form of air pollution, and the Clean Air Act actually requires them to be mitigated. So he's doing something which is, I think, not just well-founded, but in my opinion, required by the law.
Monica Trauzzi: Because the court has taken such an unusual step in granting the stay, many are suggesting that the rule is now on track to be overturned. How should EPA be planning for next steps right now?
Mary Nichols: I hope EPA is planning to continue working on the rule because, while it is certainly not capable of being enforced through administrative or judicial action, it's still the law, and there's a lot of work that EPA could be doing -- and hopefully will be doing -- with the states, with industries to work out details to explain the rule to people, to answer questions and develop additional guidance. All of those things need to be kept on track.
Monica Trauzzi: All right. We'll end it right there. Thank you. Thank you for your thoughts and time. Thanks for coming on the show again.
Mary Nichols: Thank you. A pleasure.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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Scalia's Death Scrambles Court Calculus for Major Water Cases
Feb 17, 2016 | PoliticoPro
By Annie Snider
The Supreme Court lost one of its most forceful critics of federal wetlands regulations with Justice Antonin Scalia's death, a loss that could shift the balance on how the court approaches some of the most significant water rules of President Barack Obama's tenure.
Scalia heavily influenced a more critical approach to wetlands rules among his fellow justices, once famously comparing the government to "an enlightened despot" in its implementation of regulations that sought to protect rivers and streams by regulating what individuals and businesses could do on soggy patches of land miles away.
"It was Justice Scalia, I think, who woke up that part of the court," Harvard Law Professor Richard Lazarus said. "He brought a very deep skepticism which became infectious for many of the justices on the court."
His absence will be felt immediately. The court is now seen as likely to reject a petition from the American Farm Bureau Federation when the eight remaining justices meet Friday, leaving in place a controversial, multi-state cleanup plan EPA is imposing in the Chesapeake Bay. And by this summer, the court could decide a narrow issue related to how the Army Corps of Engineers applies the Clean Water Act, although legal experts say it is too soon to handicap what Scalia's death this weekend means for the Obama administration's landmark Waters of the U.S. rule.
Scalia came to the Supreme Court less than a year after a 9-0 decision that extended the Clean Water Act's reach beyond the "traditionally navigable waters" named in the statute, to also include the wetlands adjacent to them. That 1985 case, United States v. Riverside Bayview, was the court's last word on the subject for the next 15 years.
By the time the next major wetlands case reached the high court, the majority of justices had grown far more skeptical of federal authority under the law. By a vote of 5-4, the court knocked down the Army Corps' approach to regulating wetlands that aren't connected to the bigger river system. Lazarus credited Scalia's influence for that reversal, in the 2001 case, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers.
"There are many areas of law that caused him great consternation," Lazarus said of the conservative firebrand justice. "I don't think there was one greater than wetlands and [Clean Water Act's] Section 404."
Scalia also wrote the plurality opinion in the turning point 2006 case Rapanos v. United States, where justices ruled against federal agencies' expansive take on which wetlands and streams are subject to federal authority. Scalia argued that the corps "exercises the discretion of an enlightened despot" in deciding whether to grant or deny a permit. He wrote that the Clean Water Act should only apply to regularly flowing rivers, streams and lakes.
But Scalia's approach did not satisfy the court's swing voter, Justice Anthony Kennedy. Kennedy joined with conservatives in ruling against federal agencies inRapanos, but wrote his own, stand-alone opinion that established a generally more expansive test to determine when the law applies.
The result was a 4-1-4 ruling that spawned massive confusion among regulators on the ground and lawyers in the court room, and ultimately prompted the Obama administration to issue its Waters of the U.S. rule in a bid to clear up the situation. The regulation, also called the Clean Water Rule, is pegged squarely to the test laid out in Kennedy's opinion.
The administration's rule drew a swift and scathing response from industry, states, property rights activists and even some environmental groups, who have mounted dozens of challenges in district and appellate courts.
Scalia's replacement will likely be in place by the time lawsuits challenging the rule reach the high court, which Lazarus estimates would come no sooner than April 2017.
If Obama convinces the Senate to confirm his nominee or a Democrat replaces him next year, Kennedy's opinion may no longer be the all-important target that the federal government is aiming to hit. But that doesn't mean the Justice Department would have a slam-dunk case, legal experts say.
Critics on all sides of the issue are pursuing multiple lines of attack in an effort to bring down the rule, creating a more complicated case with multiple possible pitfalls for the administration.
“The Clean Power Plan is up or down — you’re either for it or you’re against it, there’s no in between — but the WOTUS rule is different," said Pat Parenteau, a Vermont Law School professor, comparing it to EPA's carbon rule for power plants. "I could see it being struck down on one or more different grounds.”
Parenteau argues the key questions determining the fate of the water rule now are whether there is still a vacancy on the court by the time the issue makes it there, and what suite of claims are in the mix at that point -- issues that are still very much in flux.
States are pursuing constitutional claims to argue it infringes on their rights to regulate their own waters. Agriculture, mining and other industry groups argue the administration made too many changes to the final version of the rule, asking that it be struck down under the Administrative Procedures Act. And some environmental groups say agencies violated the National Environmental Policy Act by giving up wetlands protections without performing a thorough environmental review.
The court could rule on a technical aspect of the case sooner, though, if the 6th Circuit Court of Appeals' decision about where the challenges should be heard provokes an appeal to the high court. Such a move could further draw out the litigation process.
But the eight remaining justices will face two other water cases first.
The high court is slated to hear oral arguments in late March in a case over whether landowners can bring lawsuits to reverse formal Army Corps of Engineers determinations about where the Clean Water Act applies. The case is being argued by the Pacific Legal Foundation, which successfully argued a 2012 case that led to a 9-0 ruling allowing court challenges to EPA compliance orders.
Now the foundation is representing Hawkes Co., which wants to mine peat from wetlands on a 530 acre property in northwestern Minnesota, arguing the Corps' determination should be open to the same judicial scrutiny as the EPA orders. If the court views it that way, the loss of Scalia's vote may not matter to the case's outcome.
The Justice Department contends that issue is substantively different because the Army Corps jurisdictional determinations don't carry the threat of a fine, unlike the EPA orders.
If four justices accept the administration's logic, the resulting 4-4 deadlock would leave in place a split between the 5th and 8th circuits over whether the corps can be sued. Or, if a split looks likely, the court could also decide to hold the case until a new justice is appointed.
And in their first formal meeting since Scalia's death, Supreme Court justices will weigh whether to take up the American Farm Bureau Federation's challenge of the Obama administration's landmark Chesapeake Bay cleanup plan during conference on Friday.
Under the plan, EPA sets a "pollution diet" for the 64,000 square mile watershed, broken down into 92 separate Total Maximum Daily Loads across six states and the District of Columbia. States must then develop plans for how to implement those diets within individual watersheds.
The questions before the court are similar to those facing the Clean Power Plan, former EPA litigator Jamie Colburn argues in a forth coming law review article. Both plans have EPA set pollution reduction requirements then have states chose their own path for how to reach them, and both are being challenged by more than 20 state attorneys general. Two lower courts have sided with the administration in the Chesapeake Bay case.
The Supreme Court's move last week to stay the Clean Power Plan was a "bad sign" for the administration in the Chesapeake Bay case, said Colburn, now an environmental law professor at Penn State University.
Without Scalia, he predicts the high court will pass over the Farm Bureau's petition for a hearing on the issue, since a 4-4 split between conservatives and liberals would uphold the appellate court decision affirming the EPA-led plan. That would be "the final word" for the Chesapeake Bay cleanup plan, he said, but if the agency uses it as a model for cleaning up other major watersheds, there could be room for future challenges.
Lazarus, the Harvard Law professor, said its decision on whether to take up the Chesapeake Bay case will be an early sign of how the court will approach environmental cases with an evenly divided eight justices.
"That will be our first indicator," he said.
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Amid ESPS Uncertainty, Debate Heats Up Over Section 115 as Alternative
Feb 17, 2016 | InsideEPA
By Lee Logan
Debate is heating up over the viability of a climate policy centered on a little-used Clean Air Act provision governing international air pollution, an option that has gained prominence as recent developments at the Supreme Court have increased the uncertainty surrounding EPA's greenhouse gas standards for existing power plants.
“Every couple of years, someone rediscovers section 115 of the Clean Air Act and announces that it can be used to reduce U.S. greenhouse gas emissions in a new and comprehensive way. But using [section] 115 in that way would give EPA completely unconstrained power that we do not think Congress ever intended, and that the courts would never uphold,” David Bailey and David Bookbinder write in a recent blog post for the libertarian Niskanen Center.
The alternative approach is premised on the argument recently floated in a white paper from a group of prominent law professors that EPA could use section 115 of the air act to craft an economy-wide cap-and-trade program to replace or compliment EPA's power sector existing source performance standards (ESPS) rule.
The Jan. 14 paper says that the agency could craft such a rule after finding that GHGs harm other countries, and that other countries also show “reciprocity” in making efforts to reduce emissions, a finding that could be satisfied through last year's landmark Paris Agreement.
That option could be more attractive as a broad climate policy given the Supreme Court's Feb. 9 order to stay the rule pending legal challenges, though many observers say the recent death of Justice Antonin Scaliaincreases the odds that EPA's rule is ultimately upheld.
Regardless of the outcome of that litigation, EPA has signaled it does not plan to act under the provision and several critics doubt that a section 115 cap-and-trade regulation would survive legal challenge.
While the air act includes “explicit limits” on the agency's power for reducing GHGs that cause domestic harm, Bailey and Bookbinder write in their recent blog post that they doubt that the air law offers a “plenary magic wand” for GHGs that harm other countries.
“Forget the Supreme Court; that argument would not survive even the friendliest panel of D.C. Circuit judges,” they write.
Similarly, Foley Hoag attorney Seth Jaffe argues in a Jan. 20 blog post that EPA could struggle to show that other countries are providing “reciprocity” because the targets in the recently negotiated Paris Agreement are not binding at the international level.
“We're talking about the law here. I think most judges would interpret the word 'reciprocity' in a statute to mean something that is legally binding; otherwise, it doesn't mean anything,” Jaffe writes. “It don't think it's even a close enough question that Chevron deference will get EPA over the finish line.”
Despite critics' doubts, and EPA's indication it does not plan to use the authority, the suggestion of a section 115 regulation is drawing some attention in Congress. Rep. Scott Perry (R-PA) on Feb. 11 introduced legislation, dubbed the Energy Sovereignty Act, that would repeal that section of the air law.
Even though the provision has not been used successfully, the legislation signals that at least some opponents of GHG curbs want to eliminate the option. “Through the [United Nations] Paris Climate Agreement, the Obama Administration seeks to invoke an obscure provision of the Clean Air Act, Section 115, to mandate that every U.S. state cut its emissions by whatever amount the agency demands,” Perry says in a press release.
'Most Powerful' Tool
Some attorneys are more bullish on a section 115 rule. For example, Brian Potts of the firm Foley & Lardner wrote in a Politico column that the option is “the most powerful and efficient tool [President Obama] has to combat change. He should use it.”
Potts says that Republicans likely would “freak out” over any section 115 rule because it “would effectively allow the president to sidestep Congress and take full control over each states' energy sector. It would give the White House enormous power. States' rights activists would rightly scream bloody murder.”
He adds: “But while these arguments are justified, the fact is that Congress has proved unwilling to address the looming threat of climate change. Section 115 may not be the best way to do that, but right now it's the only one.”
Asked if administration officials might actually be planning to move forward with such a rule, Potts told Inside EPA that he hadn't heard, but “wouldn't be surprised” if they did given Obama's past remarks on climate. He added that some in industry might support a rule if it removed “the current patchwork of inefficient regulation,” but that others would oppose any form of GHG regulation.
The concept has also received some measure of support from observers such as former Bush-era EPA general counsel Roger Martella and Earthjustice attorney Hannah Chang.
In response to questions about whether EPA believes section 115 is an appropriate tool to curb GHGs and whether it plans to take initial steps to craft such a rule, an agency spokesman said Feb. 2 that “EPA is currently focused on implementing the Clean Power Plan and our work on other actions under the President’s Climate Action Plan.”
Despite the recent criticism, supporters of the concept say it would be an “efficient, flexible, cross-sectoral approach to reducing” GHGs.
In a Jan. 28 blog post responding to Jaffe, Michael Gerrard, a co-author of the recent law paper and director of Columbia Law School's Sabin Center for Climate Change, says that the “reciprocity” requirement in air act section 115 focuses on a “procedure right,” such as allowing a foreign country's representative to attend a public hearing related to a state compliance plan under the rule.
Gerrard also notes that the Paris Agreement “contains a new set of procedures through which countries that join the agreement will be able to review and provide input on each other's respective emissions reductions plans.” Unlike countries' targets, those rules are binding at the international level.
And to the extent that courts would require “substantive” reciprocity, the Paris deal includes political commitments by the United States and other countries to reduce emissions by a certain amount. Thus, the U.S. “has received essentially the same rights in the non-binding international commitments from other countries to reduce emissions.”
'Carve Out GHGs'
But critics such as Bailey and Bookbinder argue that a court reviewing a section 115 rule would “carve out GHGs from the phrase 'any air pollutant'” in the provision. “That is precisely what the Supreme Court did to that phrase in the Act's [prevention of significant deterioration] provisions just two years ago in Utility Air Regulatory Group v. EPA.”
“That section 115 keeps coming up shows that there is strong demand for better climate policy in the U.S.,” they add. “But the challenges to using section 115 (both Congressional intent and what we're already seen from the courts) to regulate GHGs make any successful outcome practically impossible. Look elsewhere.”
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States Seek Equal Treatment for All Areas in 'Exceptional Events' Air Rule
Feb 17, 2016 | InsideEPA
By Stuart Parker
States are asking EPA to ensure that its pending rule revising its policy on when air pollution due to "exceptional events" such as wildfires can be discounted from emissions standards compliance measurements treats areas attaining the agency's national ambient air quality standards (NAAQS) in the same manner as areas out of attainment.
EPA took comment through Feb. 3 on its proposal for "streamlining" the rule to ease the requirements for obtaining a regulatory exemption under the exceptional events policy. To date, the exceptional events policy has been unevenly implemented by EPA's regional offices, and states have experienced long delays in processing of their requests to exclude air monitoring data gathered during such events from NAAQS compliance assessments.
Obtaining a regulatory exemption for an exceptional event can help an area avoid a nonattainment designation that triggers a duty to impose costly pollution controls on industry for NAAQS pollutants such as ozone. Alternatively, states could use the exemptions to bring nonattainment areas into compliance with the standards, or to avoid areas being classified in a worse degree of nonattainment that would require tougher pollution controls.
EPA's proposal simplifies the process for excluding such data, for example by eliminating a prior requirement that states demonstrate an area would have attained a NAAQS "but for" the event in question.
The agency has touted the exceptional events policy as one way western states with high levels of background ozone -- ozone formed from natural processes or foreign emissions -- to comply with its tougher ozone NAAQS of 70 parts per billion (ppb) set Oct. 1. The new NAAQS, tougher than the previous standard of 75 ppb established in 2008, is closer to background levels sometimes sometimes experienced in the mountainous West.
In Jan. 29 comments, the Western States Air Resources Council (WESTAR), representing 15 western air quality management agencies, welcomes the proposed rule.
The group says that, "Several important rule changes that we have advocated for are proposed, including; removal of the existing obligation to show that the exceptional event is associated with air quality concentrations in excess of historical fluctuation and the removal of the existing obligation to show that, but for the event, there would not have been an air quality violation."
Control Measures
However, the group says that EPA needs to extend its proposal to allow measures in existing state implementation plans (SIPs) for areas in nonattainment with a NAAQS or that previously failed to attain a NAAQS ("maintenance" areas) to satisfy the requirement that the exceptional event was "not reasonably controllable or preventable."
WESTAR says it "supports EPA's proposal to consider relevant control measures included in recent non-attainment or maintenance SIPs as sufficient to meet this criterion. We believe that this same concept should apply in attainment areas as well. In an area that is currently in compliance with air quality standards except on days impacted by uncontrollable events, EPA's proposal would require a state to implement some undefined set of emission control measures in anticipation of future uncontrollable events in order to be eligible to exclude the event-impacted data."
WESTAR also raises concerns about elements of the policy relating to wildfire, a source of elevated ozone and particulate matter emissions. The comments say, "[W]e have concerns about EPA's proposal to defer to the entity conducting some prescribed fires to declare that the fire is a wildfire, thereby making the resulting air quality impacts eligible for treatment as an exceptional event. We also do not believe that EPA's proposal to authorize Federal Land Managers to recommend excluding air quality data under the revised rule is appropriate. That responsibility should remain solely with state and local air quality regulators."
'Clear Indication'
The National Association of Clean Air Agencies (NACAA) in Feb. 2 comments makes similar points. Addressing the "not reasonably or controllable" criterion, the group recommends "that this approach also apply to attainment and unclassifiable areas, and that EPA provide, prospectively, a clear indication of what set of controls EPA would, without question, deem acceptable for an [exceptional events] demonstration -- that is, what would receive de facto EPA approval."
NACAA also says EPA still has not included an adequate mechanism for disputing an agency determination under the rule for whether an event is, or is not, exceptional.
The New Mexico Environment Department in its Jan. 28 comments makes many of the same points, including concerns over when those undertaking intentional "prescribed" burning of land might in fact spark a wildfire, declare that best management practices were employed, and leave the state a spectator in the subsequent determination that the event was properly qualified as "exceptional."
"In this case the air agency has little to no role in determining if the event was indeed exceptional and provides no incentive for the fire manager to minimize air quality impacts," the state says.
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Parts of 8 States Failing to Meet SO2 Standards -- EPA
Feb 17, 2016 | E&E Greenwire
By Sean Reilly
U.S. EPA is proposing to designate a dozen areas in eight states as failing to meet the primary ambient air quality standard for sulfur dioxide, a step that could require those states to develop plans and meet deadlines for achieving compliance.
In a notice posted on EPA's website this morning, Stephen Page, director of the Office of Air Quality Planning and Standards, said the final determinations would be made by July 2. Once published in the Federal Register, the proposed designations would carry a 30-day public comment period.
Texas would be most directly affected. EPA may designate parts of five counties in the state as in "nonattainment" for the SO2 standard of 75 parts per billion. Joining them would be parts of two Indiana counties, all of one county in Illinois and part of another.
In most of those cases, EPA's proposal runs counter to what state leaders had recommended. At the Texas Commission on Environmental Quality, officials are reviewing the proposed designations and will reply by an April 19 deadline, spokesman Terry Clawson said in an email. Representatives of the Indiana and Illinois environmental agencies could not be reached for comment.
Other areas on the proposed nonattainment roster include part of the Baltimore metro area, along with locations in Louisiana, Michigan, Missouri and Oklahoma. EPA notified all states affected by the proposed designations, said the agency.
Sulfur dioxide is a toxic gas produced by burning coal that can worsen asthma symptoms and narrow the bronchial tubes. SO2, along with other sulfur oxides, can also react with other atmospheric compounds to form fine particles linked to heart and lung disease.
This is the second round of nonattainment designations since EPA lowered the primary S02 standard -- which is supposed to protect public health -- to 75 ppb in 2010. EPA must make the remaining designations by 2017 and 2020 under a settlement with the Sierra Club.
Once final, the newly proposed nonattainment designations "should ultimately provide long overdue relief for those communities," Mary Hitt, director of the Sierra Club's Beyond Coal Campaign, said in a statement this morning. "At the same time, however, EPA has failed to include areas with some of the highest sulfur pollution in the country," she said.
The roster announced today covers areas that either have newly monitored violations of the SO2 standard or are home to power plants and other stationary pollution sources that had not been announced for retirement as of March 2015 and also met certain emissions thresholds.
Of the 54 remaining areas that fall within those guidelines, EPA officials are proposing to designate 23 as "unclassifiable," meaning they lack the data to make a determination.
The agency is proposing the other 31 as "unclassifiable/attainment," which EPA defines as areas either in attainment or are "likely to be attaining" the standard.
Under both of those designations, states do not have to come up with implementation plans to achieve compliance, Zack Fabish, a Sierra Club attorney, said in an email.
In the first round of designations rolled out in 2013, EPA listed 29 areas in 16 states as in nonattainment.
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Calif. Gas Leak Seen as Llitigation Gusher Rivaling BP Spill
Feb 17, 2016 | E&E Greenwire
By Jeremy P. Jacobs
With the plugging of a monthslong methane leak at a natural gas well in Los Angeles last week, lawyers have turned their attention to litigation stemming from the environmental debacle.
They are comparing Southern California Gas Co.'s handling of the gas leak to another environmental disaster: the 2010 Deepwater Horizon oil spill in the Gulf of Mexico.
The Aliso Canyon leak spewed more than 80,000 metric tons of methane -- a powerful greenhouse gas -- since it began on Oct. 23, 2015. Southern California Gas said last week it had halted the gas release, at least temporarily, and has begun pumping cement and other fluids into a relief well that reached the site of the leak.
If the utility manages to permanently seal the well, attention will pivot to environmental enforcement and legal action.
More than 10 regulatory entities are investigating the leak, and Energy Secretary Ernest Moniz and Pipeline and Hazardous Materials Safety Administration chief Marie Therese Dominguez visited the site with other officials and lawmakers yesterday (see related story). Southern California Gas is already facing a criminal lawsuit from the Los Angeles district attorney, as well as civil suits filed by the state. U.S. EPA is also investigating, which could lead to federal civil or criminal charges.
On top of that, lawyers expect hundreds -- if not thousands -- of personal injury lawsuits to be filed by the residents of the affluent Porter Ranch neighborhood claiming the gas' toxic additives have made them sick and that the leak has lowered property values in the affluent area. Nearly 5,000 households moved out during the leak, and attorneys and activists -- including Robert F. Kennedy Jr. and Erin Brockovich
Many attorneys said that despite some key statutory differences, the situation reminds them of the litigation onslaught that followed BP PLC's Deepwater Horizon accident, which killed 11 workers and released millions of gallons of oil into the Gulf.
Attorney Frank Petosa of the firm Morgan & Morgan said there are "many parallels" between Deepwater Horizon and the Aliso Canyon leak, primarily in each company's management of the wells and response to the accidents.
"What's amazing is here we are -- 5 ½ years later -- and BP's plan was no different from Southern California Gas'," said Petosa, who worked on the Deepwater Horizon litigation and also has clients in Porter Ranch.
"What is the unfortunate similarity is both corporations put profits ahead of safety and not taking the necessary steps to ensure safety -- and then not having a plan in place."
A key similarity between the two accidents was the company's management plans, said Robert Bea, the co-founder of the Center for Catastrophic Risk Management at the University of California, Berkeley.
Bea said Southern California Gas, like BP, failed to adequately prepare for an accident, which was surprising because the well at issue -- one of 115 at the utilitiy's sprawling San Fernando Valley facility -- was drilled in the 1950s for oil development, then repurposed in the 1970s for natural gas storage.
"Risks were not properly assessed," said Bea, who has studied more than 600 oil and gas accidents around the world. "The risks were not properly managed."
A primary concern, Bea and several attorneys said, is the lack of a safety valve in the Aliso Canyon well. The valve was removed when it broke in 1979, and Southern California Gas never replaced it.
The valve wouldn't have entirely prevented the leak, but it would have stopped the continued release of the fumes.
Several attorneys claim the valve is reminiscent of the Transocean Ltd.'s now-infamous blowout preventer, or BOP, that failed to stem the release of oil on the Deepwater Horizon rig.
Los Angeles District Attorney Jackie Lacey, who has filed criminal charges against the company, said that shows negligence.
"Had they repaired it in 1979, we wouldn't even be talking about this story," she said in an interview. "But they chose not to."
Lacey's lawsuit includes four criminal misdemeanor counts, including failing to report the release for three days. The lawsuit seeks about $125,000 in penalties, and she could seek prison time for some utility officials.
Petosa, the personal injury attorney, said there are other similarities in the two companies' responses, as well.
Southern California Gas, like BP, lacked a prepared contingency plan for what to do after an accident. Ultimately, their responses have been eerily similar, he said: drill a relief well.
That, Petosa said, has led to the prolonged crisis. It took 87 days to cap BP's well; the Southern California Gas leak stretched to beyond 100 days old.
And like BP, which hid from EPA and federal officials how much oil was escaping from the well and rig immediately after the accident, Southern California Gas did not act transparently once it learned of the leak, taking multiple days to report it to state regulators.
"It's a matter of not taking the proper steps," Petosa said. "If you take short cuts, if you put profits ahead of safety, you can create an environmental catastrophe."
A Southern California Gas spokeswoman declined to comment on the lawsuits or comparisons to the Deepwater Horizon accident.
"We are reviewing all of these lawsuits and will allow the judicial process to take its course," the spokeswoman, Tammy Taylor, said in an email. "Today, our focus continues to be on working hard to stop the gas leak, mitigate the odors associated with the leak as quickly as safety allows, and address our neighbors' concerns."
The utility said Friday it has "temporarily controlled" the gas flow from the leaking well. This week, it began injecting concrete to permanently cap the leak. Then regulators will then measure whether any gas is still leaking, a process that could take several days.
'Careful coordination'
Procedurally, the major similarity between the Aliso Canyon lawsuits and those following Deepwater Horizon is that they are complex.
Hundreds, if not thousands, of personal injury lawsuits will be filed in Southern California against the utility.
And in addition to Lacey's criminal charges, the company is also facing civil suits from the state -- which claims the leak is hindering its ability to meet its climate change agenda, among other things -- and potentially lawsuits from EPA and the Justice Department (E&ENews PM, Feb. 2).
"There will have to be some careful coordination," said Richard Frank, a law professor at the University of California, Davis.
Much like the multiple federal lawsuits against BP and the operators of Deepwater Horizon were consolidated and sent to federal district court Judge Carl Barbier in Louisiana, Frank anticipates that California's Judicial Council will consolidate the civil lawsuits into one proceeding before a well-regarded state court judge with a record of handling complex matters. (The criminal charges are required to stay separate.)
Separately, the personal injury claims could be combined.
Whether EPA will pursue its own legal action against the company remains to be seen. A civil enforcement action under the Clean Air Act would be filed in federal district court. And the Justice Department could, on its own, pursue criminal charges against the company, also in federal court.
"That would require additional coordination between federal and state court proceedings," Frank said, calling that scenario "an additional complication.
"No 'big hammer'
For federal prosecutors and EPA, there are some important differences between the two accidents that will undoubtedly factor into their thinking about whether to pursue a lawsuit.
The critical difference could be what law applies. After the Deepwater Horizon spill, EPA primarily pursued penalties under the Clean Water Act. The water law mandates the responsible party for the spill must pay $4,300 per barrel if they acted in a "grossly negligent" manner leading up to the spill.
Once Barbier ruled BP was negligent, the company was on the hook for about $13.7 billion in those penalties alone. That helped lead to a landmark $18.7 billion settlement that included the Clean Water Act penalties, as well as natural resource damages under the Oil Pollution Act and other claims (Greenwire, July 2, 2015).
For the Aliso Canyon gas leak, the Clean Air Act applies, and it does not provide the same sort of per-barrel calculation for air emission penalties.
"They are very different," said David Pettit of the Natural Resources Defense Council, who has worked on both accidents. "The big hammer that the U.S. had in Deepwater Horizon was the Clean Water Act and its very specific penalties."
Pettit added that one lesson from the Deepwater Horizon litigation is how long these cases play out. With regard to the federal cases, it took more than five years for a settlement to be reached. And some of the personal injury claims are still ongoing.
He hopes the state can move more swiftly in enacting reforms to prevent another gas leak than the federal government did following Deepwater Horizon.
"The state is in a much better position to deal with the dangers of storing natural gas underground, especially in old oil wells," Pettit said. "I hope that they see that example and get going."
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Methane Limits Take Shape in Pa.
Feb 17, 2016 | E&E Energywire
Pennsylvania environmental regulators are beginning the process of cracking down on methane emissions, starting with permits for new shale gas well sites and new compressor stations.
At the direction of Gov. Tom Wolf (D), the state Department of Environmental Protection is considering new well pad regulations, including quarterly leak inspections with infrared cameras, monthly screenings, cleaner diesel engines on drilling rigs, faster repairs, reduced pump bleed-off and 95 percent control of emissions from associated pollutants from storage tanks.
DEP officials said they are considering similar regulations for new compression and processing sites.
The regulators estimate more than $60 million worth of salable product is lost through methane leaks annually. Because savings are easily recouped through buying methane-trapping equipment, regulators aren't sure why some companies aren't investing, but DEP officials have some ideas.
"Some companies are smarter than others," DEP Secretary John Quigley said, adding that the department can't just "sit back and wait for voluntary compliance ... because it's not happening."
DEP officials said permits could be given to a whole company, instead of through site-by-site evaluations.
Department members added that it will take longer to implement rules on leaks from existing oil and gas infrastructure and along new pipelines (Laura Legere, Pittsburgh Post-Gazette, Feb. 16).
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